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Sasser v. Director, Virginia Department of Corrections

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

July 28, 2017

JOHN H. SASSER, Petitioner,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

          MEMORANDUM OPINION

          Elizabeth K. Dillon, United States District Judge

         John H. 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 be granted.

         I. BACKGROUND

         On 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.

         Officer 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.

         On 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 distribute.

         At the 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.

         The 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.

         The 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.

         The 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.

         At the 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.

         The circuit court sentenced Sasser to thirty-three years in prison, with twenty-five years suspended.

         Sasser's 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 review.

         Sasser then filed the current action, bringing the same claims as in his state habeas proceedings, alleging ...


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