United States District Court, W.D. Virginia, Roanoke Division
JOHN H. SASSER, Petitioner,
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.
Elizabeth K. Dillon, United States District Judge
Sasser, 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 Danville City Circuit Court.
Respondent filed a motion to dismiss, and Sasser responded,
making the matter ripe for disposition. Having reviewed the
record, the court concludes that the motion to dismiss must
March 16, 2012, Danville Police Officer Shively went to
Sasser's home to serve warrants on Sasser. When Sasser
opened the door, Officer Shively smelled marijuana coming
from the residence. Officer Shively had Sasser and the other
individual present wait outside the apartment with another
officer while he obtained a search warrant.
Shively discovered bags of cocaine, bags of marijuana,
digital scales, and a box of sandwich baggies. He also
discovered wrapped baggies of cocaine, loose cash, and a
wallet containing Sasser's identification. Officer
Shively then sent the contraband to the laboratory for
analysis. The lab certified that the substances were cocaine
and marijuana. At the plea colloquy, the prosecutor told the
court that Officer Shively would have testified that the
amounts recovered from Sasser's home were inconsistent
with personal use.
February 15, 2013, Sasser pleaded guilty in the Circuit Court
for the City of Danville to possession of cocaine with intent
to distribute and possession of marijuana with intent to
plea hearing, the trial court engaged Sasser in a lengthy
colloquy before accepting his guilty pleas. Sasser asserted:
he had had enough time to discuss the charges and possible
defenses with counsel; he discussed with counsel whether to
plead guilty, no contest, or not guilty, and decided for
himself to plead guilty; he pleaded guilty freely and
voluntarily; and he understood the implications of pleading
guilty regarding the waiver of certain rights.
trial court then asked whether any promises had been made to
Sasser in exchange for his guilty plea. Counsel stated that
the Commonwealth agreed to drop the two firearm charges in
exchange for the guilty plea. Sasser acknowledged that
agreement. The court then further questioned Sasser:
“Mr. Sasser, are there any other promises that have
been made to you besides the Commonwealth's agreeing to .
. . move to dismiss Indictments Two and Three with entry of
pleas of guilty on Indictments One and Four?” Tr. at 7.
Counsel reiterated: “No other promises have been made
to you?” Id. Sasser responded, “No other
promises have been made.” Id. The court later
rephrased the question: “[H]ave you entered into a plea
agreement with the Commonwealth Attorney, except for what
you've indicated earlier . . . the promise that they
would move to dismiss Indictments Number Two and Number
Three?” Id. at 9. Sasser told the court that
he had not entered into any other plea agreement besides the
dismissal of the firearm charges, and acknowledged that the
agreement was not written.
court also discussed possible sentencing with Sasser:
“[W]hat is your understanding [of] the maximum
incarceration you could receive?” Id. Sasser
replied, “Fifty Years.” Id. Sasser
acknowledged Virginia's sentencing guidelines, and that
the court was not required to follow them. Sasser then told
the court that he was entirely satisfied with his attorney,
and that counsel had not failed to do anything that Sasser
asked of him in preparation for the case.
prosecutor then summarized the evidence, and Sasser's
counsel added that he had filed two motions to suppress. The
first challenged a police officer entering the home before
obtaining a warrant; the other argued that the money and guns
found did not belong to Sasser. Counsel also told the court,
in Sasser's presence, “we realize that we are
waiving [the pending suppression motion of alleged
warrantless entry] by entering into these [plea]
agreements.” Id. at 12.
sentencing hearing, counsel had family and friends testify on
Sasser's behalf to the court, and noted that the
sentencing guidelines “are not terribly fair”
regarding Sasser: “[Y]ou lose respect for the law
when it no longer makes a great deal of sense.”
Id. at 46. Sasser made a short statement regarding
his desire to move on from his crimes with his fiancé;
however, he made no mention of the sentencing guidelines
being unfair. The court later directly addressed Sasser:
“[Y]ou're looking at fifty years. I know you know
it, because we went through it on [your] guilty plea.”
Id. at 54. The judge even told Sasser that he was
going to sentence within the guidelines: “I'm going
to go within the guidelines, but I was really really looking
at going well above them, because like I said from the very
beginning, you are the bogyman.” Id.
circuit court sentenced Sasser to thirty-three years in
prison, with twenty-five years suspended.
direct appeals, with new appellate counsel, were
unsuccessful, and he timely filed a petition for a writ of
habeas corpus in the Danville City Circuit Court. He alleged
that trial counsel was ineffective for allowing Sasser to
plead guilty before the court ruled on the motions, and
counsel misadvised Sasser as to sentencing. The circuit court
denied and dismissed the petition, concluding that Sasser had
not shown prejudice, and Sasser's plea colloquy limited
the court's review under Anderson v. Warden, 281
S.E.2d 885 (Va. 1985). Sasser appealed the state habeas
court's denial, but the Supreme Court of Virginia refused
then filed the current action, bringing the same claims as in
his state habeas proceedings, alleging ...