Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hicks v. Director, Virginia Department of Corrections

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

June 27, 2017

THOMAS L. HICKS, Petitioner,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Thomas L. Hicks, 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 final order by the Rappahannock County Circuit Court convicting him of attempted murder, malicious wounding, use of a firearm in the commission of a felony, and robbery. Respondent filed a motion to dismiss, and Hicks responded, making the matter ripe for disposition. After review of the record, the court concludes that the petition must be dismissed.

         I.

         A. Factual Background

         Around 8 P.M. on June 10, 2010, Clyde "Jack" Dellinger was in his front yard when he was shot in the face and robbed of the cash in his pocket. Daniel and Paula Dellinger, Clyde's son and daughter-in-law, were driving home around the same time as the shooting.[1] They noticed Clyde lying on his back in the yard and rushed to check on him. Daniel ran up and asked Clyde what had happened and if he needed help. As Clyde lay there bleeding, he excitedly stated: "He shot me, Daniel, and he robbed me." Hicks v. Commonwealth, 725 S.E.2d 748, 751 (Va. Ct. App. 2012). Daniel testified, "I guess [Clyde] thought he was gonna not make it, so he just gave information and all he could." Id, Still on the ground in a pool of blood, Clyde told Daniel that Tom Thompson, or Thomason, [2] shot and robbed him. "Daniel testified that Clyde made these statements 'spontaneously' rather than in response to sustained questioning. Clyde also inquired of his son whether he would get some help and whether he could take him to the hospital." Id,

         Paula had called 911, and Clyde remained conscious during the short wait for help to arrive. "Paula testified that there 'was an urgency in his voice, that he had to tell us as much as he could, I believe, because he wasn't sure if he was going to make it.'" Id, While on the ground, Clyde had an automotive belt in his hand, which he told Daniel and Paula that he had sent "Tom" to Culpeper to retrieve. Clyde also "indicated that the belt was very important to finding 'Tom.'" Id,

         Clyde later testified at Hicks' preliminary hearing and identified him as the man who shot and robbed him. Before trial, Clyde died of causes unrelated to the shooting. After Clyde's death, the Commonwealth filed a pretrial motion to allow Clyde's statements to Daniel and his statements at the preliminary hearing to be allowed into evidence under hearsay exceptions: excited utterance of a victim now deceased, and the preliminary hearing testimony of one who is now deceased. The trial court granted the motion and allowed the testimony and statements into evidence.

         B. Procedural History

         The jury convicted Hicks of attempted murder, malicious wounding, use of a firearm in the commission of a felony, and robbery, and the trial court imposed the jury's aggregate sentence of forty-eight-years' imprisonment. Hicks appealed, arguing that the circuit court erred by (1) ruling that statements of Clyde Dellinger, the alleged victim, could come into evidence as an excited utterance exception to the hearsay rule, and (2) by allowing at trial the testimony of witnesses who were present at the preliminary hearing and who heard the testimony of Clyde Dellinger. The Virginia Court of Appeals affirmed the convictions. The Supreme Court of Virginia then refused Hicks' petition for appeal, and further denied his petition for rehearing.

         Hicks then timely filed a petition for a writ of habeas corpus in the Rappahannock County Circuit Court, alleging six claims of ineffective assistance of counsel and four substantive claims. First, Hicks claimed that counsel was ineffective for:

1. failing to move to continue the preliminary hearing because a court reporter was not present;
2. failing to object when the jury sent two notes to the judge during deliberation;
3. failing to call Officer Fincham as a defense witness to testify about what he had told James Hackley to say about his identification of Hicks;
4. failing to file a motion to have James Hackley's statement disqualified under the hearsay rule;
5. failing to call Officer Fincham as a defense witness to testify about his identification or what the officer told his mother, brother, and sister-in-law to say about Hicks' case; and
6. failing to object to the testimony of Paula Dellinger, knowing that Paula used OxyContin. Hicks also alleged that:
7. Ms. Fincham made a false statement at trial when she said she saw Hicks facing the victim;
8. The Virginia Supreme Court ruled that the testimony of Paula Dellinger and Sheriff Connie Smith should not have been admitted at trial;
9. The trial court erred in allowing the Commonwealth to show the jury the gun that injured the victim; and
10. The victim was not shot from the blue car because he did not have gun powder residue on him.

         The Rappahannock County Circuit Court granted the respondent's motion to dismiss: the court found Claims 7, 9, and 10 barred under Slavton v. Parrigan, 205 S.E.2d 680 (1974), Claim 8 barred by Henry v. Warden, 576 S.E.2d 495 (2003), and that the remainder of the claims did not satisfy Strickland v. Washington, 466 U.S. 668 (1984).

         Hicks appealed, reiterating the same claims as in the circuit court but adding an allegation that the circuit court "failed to identify the substance of the claims asserted in the [state habeas] petition and state the reasons for the denial of each claim." The Virginia Supreme Court refused to review Hicks' new claim and dismissed the rest of the petition because the claims were procedurally defaulted under Virginia Supreme Court Rule 5:17(c)(iii). The court later denied Hicks' motion to amend.

         On July 7, 2016, Hicks timely filed a petition for a writ of habeas corpus in the federal district court, alleging nine ineffective assistance of counsel claims and two substantive claims.[3]First, counsel was ineffective for:

1. Failing to (1) continue the preliminary hearing, and (2) follow Hicks' instruction to have the preliminary proceedings continued because no court reporter was present (Claim 1 and A);
2. Failing to object when the jury sent two notes to the judge during deliberation (Claim 2 and B);
3. Failing to call Officer Fincham as a defense witness to testify about what he had told James Hackley to say about his identification of Hicks and what the officer told his mother, brothers, and sister-in-law to say about Hicks' case (Claim 3 and E);
4. Failing to investigate James Hackley in order to challenge his testimony at trial or file a motion to have Hackley's statement disqualified under ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.