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Tucker v. Ratliffe-Walker

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

August 16, 2017



          Hon. Glen E. Conrad United States District Judge

         Bronson 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.

         I. Factual Background

         In June 2010, Lynchburg City police officers arrested Jennifer Beverly on a drug charge, and she agreed to make controlled drug purchases for the police.[1] Beverly started using cocaine in October 2007; at the time of the trial, she had used cocaine for three and a half years.

         Beverly 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.

         Upon 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"[2] 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.

         The 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.

         During 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.

         At 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, [3] 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 petitioner's mother.

         Another 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 into evidence.

         The 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.[4] 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 Tucker.

         II. Procedural History

         After a 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).

         Tucker 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.

         III. Current Petition

         On October 17, 2016, Tucker filed, by counsel, a timely federal habeas petition under 28 U.S.C. § 2254, raising five claims:

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 bargain process.

         This 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.

         IV. Standard of Review

         To 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; or
(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 omitted).

         To 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. 1992).

         V. ...

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