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Beckham v. Warden

United States District Court, W.D. Virginia, Roanoke Division

May 4, 2017

COREY LEVON BECKHAM, Petitioner,
v.
WARDEN, Respondent.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE.

         Corey Levon Beckham, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Washington County Circuit Court. Respondent filed a motion to dismiss Beckham's § 2254 petition, and Beckham responded, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss.

         I. Factual & Procedural Background

         In November 2009, DEA agents wiretapped calls from one Troy Burrows in Birmingham, Alabama. Trapped calls indicated the following: that a customer would travel down from the D.C., Maryland area to purchase cocaine. The customer would arrive in a rental vehicle on November 24th, change vehicles at his parents' house, and then meet Burrows to purchase cocaine at another location.

         Federal agents organized ground and air surveillance on Burrows. An individual arrived in a white Chevrolet Lumina, met up with Burrows, and the two men went to a drug house. The men went into the drug house carrying a black bag and came out some time later. The individual who entered the house wore a yellow shirt and the DEA followed him to 4148 37th Avenue, North Birmingham. Agents determined that an Eric Beckham maintained utilities at that address.

         While parked at the house, agents placed a GPS tracking device on a Lincoln MKX. Agents continued to surveil the individual and the MKX as it traveled through Tennessee and into Virginia. The DEA contacted the Virginia State Police and requested that they conduct a walled-off stop to protect the sealed wire tap and the Birmingham investigation.

         Trooper Rex Carter spotted the MKX in a Marathon gas station in Glade Spring, Virginia, and initiated a traffic stop based on tinted windows and a failure to signal. Beckham had a rental agreement in his possession and told Carter that he had been to Birmingham to visit his mother. Carter advised Beckham that he had probable cause to search the car based on DEA information, including a vehicle tracking device.

         The vehicle stopped by Carter was the same vehicle that the DEA observed in Birmingham, and the MKX had not stopped since it had entered Virginia. Officers found marijuana in an Altoids tin, a yellow shirt inside of a black bag, and two bricks of cocaine powder in a door panel, later weighed at 748 grams.

         On October 1, 2010, Beckham pleaded guilty to possessing more than 500 grams of cocaine, possessing cocaine with the intent to distribute, second or subsequent offense, transporting into the Commonwealth more than one ounce of cocaine, and conspiracy to distribute cocaine. The Washington County Circuit Court convicted Beckham, and sentenced him to one hundred years in prison, with eight-five years suspended. Beckham did not pursue a direct appeal.

         Beckham did, however, file a timely petition for a writ of habeas corpus to the circuit court, raising three claims arguing that counsel was ineffective for:

A. failing to investigate and neglecting to use satellite images to discredit Trooper Rex Carter;
B. telling Beckham that: (1) Judge Lowe had never overturned a case on appeal, (2) if Beckham pleaded guilty, Judge Lowe would sentence him according to the guidelines of seven to ten years imprisonment, and (3) Beckham could not appeal if he pleaded guilty; and,
C. failing to investigate or inquire as to how a GPS tracking device could have been secreted on Beckham's vehicle by government agents in Alabama without either a properly obtained warrant or the approval of a neutral magistrate.

         On March 5, 2013, the circuit court denied and dismissed the petition, because Beckham's claims were not reviewable under Anderson v. Warden, 281 S.E.2d 885 (Va. 1981), and in the alternative, Beckham had not met his burden under Strickland v. Washington, 466 U.S. 668 (1984).[1]

         On October 28, 2013, the Virginia Supreme Court refused Beckham's appeal of the trial court's habeas judgment.

         On November 5, 2013, Beckham then filed a § 2254 petition in the Eastern District of Virginia; the Eastern District transferred the matter to the Western District. Judge James Turk dismissed Beckham's first federal habeas petition as untimely.

         On May 18, 2015, Beckham filed an additional state habeas petition in the Supreme Court of Virginia, stating that he had learned, on May 15, 2014, that his defense counsel had been found not guilty by reason of insanity on drug and firearms charges in a 2013 trial. Beckham asserted that counsel's criminal trial revealed that during the time counsel represented Beckham, counsel abused alcohol as well as illicit and prescription drugs. Beckham reiterated his original state habeas claims with mental illness and incompetency components, and added a blanket mental illness ineffective assistance claim. The Virginia Supreme Court dismissed the petition as untimely under Va. Code § 8.01-654(A)(2), and later refused a rehearing. On January 19, 2016, the United States Supreme Court refused certiorari.

         Beckham filed the current federal petition for a writ of habeas corpus on April 4, 2016, asserting four ineffective assistance claims, stating that counsel was ineffective because:

A. Counsel, who suffered a mental illness at the relevant time, neglected to investigate or inquire as to how a GPS tracking device could have been secreted on Beckham's vehicle by government agents without either a properly ...

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