United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad United States District Judge
Howard Tucker, a Virginia inmate proceeding by counsel, 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 Lynchburg City Circuit
Court convicting him of distribution of cocaine within 1, 000
feet of a school and distribution of cocaine, third or
subsequent offense. Respondent filed a motion to dismiss, and
Tucker responded, making the matter ripe for disposition.
After review of the record, the court concludes that the
petition must be dismissed.
2010, Lynchburg City police officers arrested Jennifer
Beverly on a drug charge, and she agreed to make controlled
drug purchases for the police. Beverly started using cocaine in
October 2007; at the time of the trial, she had used cocaine
for three and a half years.
met Tucker in August 2010 through Lisa Guill, a friend and
neighbor. Beverly spent time with Tucker and Lisa Guill when
drugs were present. Beverly spoke to Detective Joel Hinkley
about making a controlled buy from Tucker and Lisa Guill,
and, on September 30, 2010, arranged to purchase cocaine from
Tucker at an Applebee's restaurant. Beverly met with
officers who searched her and her vehicle before outfitting
her with police recording equipment. Officers gave Beverly
$100 to make the controlled purchase, and she drove to
Applebee's to meet Tucker and Guill.
Beverly's arrival, Tucker and Guill entered Beverly's
vehicle and discussed the purchase. Tucker's face was not
visible on the video recording, but Beverly identified Tucker
as the male voice heard on the tape. Beverly requested
"fifty or a whole G" and handed Tucker $80. Tucker
took the money, grabbed two bags of cocaine from his vehicle,
and returned to Beverly's car. Beverly placed the two
bags of cocaine on her lap, and drove back to Hinkley.
Beverly gave Hinkley the cocaine and the remaining $20.
Officers searched Beverly and her vehicle but once again did
not find any other drugs or money.
audio and video recordings of the encounter were admitted
into evidence. The Applebee's was within 400 feet of
Liberty Christian Academy. At trial, Beverly testified that
Tucker bagged his cocaine in a distinctive way: the bag was
"rolled down and tied so it's like little wings on
each side of the bag." Trial Tr. 65.
cross-examination, Beverly admitted that she made false
statements when she told Tucker's former attorney that
Tucker did not sell her cocaine. Beverly explained that she
lied to Tucker's former attorney because she felt
pressured by Guill and that Tucker had pleaded with Beverly
to speak with his attorney.
trial, Hinkley testified that Beverly made five controlled
buys from more than one person, and that she had assisted
police in finding people that had outstanding warrants. He
further stated that he always found Beverly credible and
reliable. He confirmed several aspects of Beverly's
testimony: officers searched her and her vehicle for
contraband and cash, placed a "live wire" in her
pocketbook, and monitored her during the transaction through
the live wire, in person,  and via multiple phone calls. Also,
Hinkley and Lieutenant Marty Soyars listened to the drug
transaction and identified Tucker as the male voice on the
audio. When police ran the license plate on Tucker's
vehicle, the car came back as belonging to Ginger Tucker, the
detective, Dan Bailey, sat inside the Applebee's and
observed Tucker leave the restaurant a minute before Beverly
arrived to make the drug purchase. Tucker stayed outside for
approximately two minutes before returning to the restaurant.
The Commonwealth introduced Bailey's surveillance video
defense presented a number of witnesses who testified that
Beverly did not have a reputation for truthfulness in the
community. Further, Tucker's former appointed counsel,
Leslie Allen, testified that he took a statement from Beverly
about Tucker's case. He also confirmed the accuracy of the
interview transcript which counsel had introduced into
evidence when impeaching Beverly, specifically her statement
during the meeting that she had not purchased cocaine from
jury trial, the Lynchburg City Circuit Court convicted Tucker
of distribution of cocaine within 1, 000 feet of a school and
distribution of cocaine, third or subsequent offense and
sentenced him to twenty years in prison, with eight years
suspended. Tucker appealed, arguing that (1) the trial court
erred in excluding evidence of drug use by Jennifer Beverly,
and (2) the trial court erred in finding the evidence
sufficient to convict him. The Virginia Court of Appeals
affirmed the convictions, denying his first assignment of
error on the merits, and holding that the second assignment
of error was procedurally barred under Va. Sup. Ct. R. 5A:18
because Tucker had failed to preserve the issue at trial with
a renewed motion to strike or motion to set aside the
verdict. The Supreme Court of Virginia then denied
Tucker's petition for appeal, holding that the first
assignment of error was without merit, and the second
assignment was procedurally defaulted because it did not
address the Virginia Court of Appeals' ruling as required
by Va. Sup. Ct.R. 5:17(c)(1)(iii).
filed a timely habeas petition in the circuit court,
but the court denied his petition and a motion to reconsider.
The Virginia Supreme Court subsequently refused Tucker's
habeas appeal and motion for rehearing.
October 17, 2016, Tucker filed, by counsel, a timely federal
habeas petition under 28 U.S.C. § 2254, raising
1. The evidence against Tucker was legally insufficient as a
matter of federal constitutional law;
2. Counsel was ineffective for failing to use Beverly's
videotaped statements when impeaching her;
3. Counsel was ineffective for failing to call Ginger Tucker
as a defense witness;
4. Counsel was ineffective for failing to call Lisa Guill as
a defense witness; and
5. Counsel was ineffective in connection with the plea
matter is now before the court on Respondent's motion to
dismiss. Respondent has conceded that Tucker has properly
exhausted his claims in state court.
Standard of Review
obtain federal habeas relief, a petitioner must
demonstrate that he is "in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Under 28 U.S.C. § 2254(d),
however, a federal court may not grant a writ of habeas
corpus based on any claim that a state court decided on the
merits unless that adjudication:
(1) Resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) Resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). "Where, as here, the state
court's application of governing federal law is
challenged, it must be shown to be not only erroneous, but
objectively unreasonable." Yarborough v.
Gentry. 540 U.S. 1, 5 (2003). Under this standard,
"[a] state court's determination that a claim lacks
merit precludes federal habeas relief so long as
fair-minded jurists could agree on the correctness of the
state court's decision." Harrington v.
Richter. 562 U.S. 66, 101 (2011) (internal quotations
establish ineffective assistance, a petitioner must show that
counsel's performance fell below an objective standard of
reasonableness and that he was prejudiced by the alleged
deficient performance. Strickland v. Washington, 466
U.S. 668, 669 (1984). Courts apply a strong presumption that
counsel's performance, especially regarding trial
management and strategy, was within the range of reasonable
professional assistance. Id. at 689. To demonstrate
prejudice, petitioner must show there is a reasonable
probability that, but for counsel's unprofessional error,
the outcome of the proceeding would have been different. IcL
at 694. "Bare allegations" of constitutional error
are not sufficient grounds for habeas relief; the
petitioner must proffer evidence to support his claims.
Nickerson v. Lee, 971 F.2d 1125, 1135 (4th Cir.