United States District Court, W.D. Virginia, Roanoke Division
K. MOON UNITED STATES DISTRICT JUDGE.
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.
Factual & Procedural Background
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.
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.
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.
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.
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.
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.
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.
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
October 28, 2013, the Virginia Supreme Court refused
Beckham's appeal of the trial court's habeas
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
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.
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
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