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Hill v. Clarke

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

October 19, 2017

HAROLD W. CLARKE, Respondent.


          Hon. Jackson L. Kiser Senior United States District Judge

         Keith Lamonte Hill, a Virginia inmate proceeding pro se, timely filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of Hill's confinement on a judgment in Campbell County Circuit Court. Respondent filed a motion to dismiss, and Hill failed to respond, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss and dismiss the petition.

         I. Background

         A Campbell County jury convicted Hill of burglary, grand larceny, conspiracy, destruction of property, and possession of burglary tools. The circuit court sentenced him to a sixty-one year prison term.

         In Hill's related Franklin County habeas petition, I established the following facts:

On the morning of July 5, 2010, Rocky Mount Food Lion employees arrived at work to discover that a break-in had occurred overnight. A burglar had cut an entry-hole into the back wall, and the thief had stolen $5, 692 of cigarettes. The store surveillance cameras captured a male who fit Hill's description inside the store, holding a bag, and going to various cigarette dispensing locations. Employees called the local police, who began investigating.
On the morning of August 1, 2010, the owner of the Lucky 2 Mart, located in the southern part of Franklin County, discovered that someone had cut an entry-hole into the back wall of his store and absconded with $18, 000 of cigarettes. Unfortunately, the surveillance cameras and motion detectors were not functioning.[1] Again, local police began investigating.
On August 8, 2010, Lt. Mandeville of the Botetourt County Sheriffs Department responded to a call from 604 Minute Market regarding a break-in attempt. Preliminary investigation did not reveal any suspects, [2] but around this time, Botetourt County officers discovered that similar burglaries, with the same modus operandi[3]had occurred in Campbell County, Franklin County, and the City of Lynchburg. A multi-jurisdictional, cooperative investigation began.
On September 4, 2010, Botetourt County Deputy Bruce stopped a suspicious vehicle in the Greenway Market parking lot, long after the store had closed. Hours later, Greenway Market employees reported a suspicious man that claimed to be from the store's security provider, but the individual left before Greenway Market employees phoned police.[4]
On September 9, 2010, Lt. Mandeville obtained surveillance footage from the 604 Minute Market[5] and Greenway Market. In the Greenway Market surveillance tape, the suspicious man, who claimed to be from the store's security provider, placed tape over security motion sensors. Lt. Mandeville strongly suspected that the videos from the two stores showed the same individual: a black male matching Hill's description.
On September 10, 2010, Deputy Bruce informed Lt. Mandeville about the suspicious vehicle in the Greenway Market parking lot, and thereafter Lt. Mandeville obtained the license and DMV information on the two black males that Deputy Bruce had stopped on the morning of September 4, 2010. Lt. Mandeville then compared the DMV photos with the surveillance footage; Lt. Mandeville believed that one of the bla'ck males from the parking lot stop, Hill, was the same black male who appeared in the 604 Minute Market and Greenway Market surveillance videos.
After additional DMV searches, Lt. Mandeville discovered Hill's Bedford address and his ownership of a 2003 Chevrolet. Lt. Mandeville consulted with the Commonwealth's Attorney about attaching a GPS device to Hill's vehicle, and the Commonwealth's Attorney advised that a search warrant was unnecessary. The controlling precedent at the time, Foltz v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), stated that the placement of a GPS unit on a vehicle did not constitute a search or seizure. Lt. Mandeville directed Botetourt Deputy Dillow to place a GPS on Hill's vehicle.[6] On September 16, 2010, Deputy Dillow traveled to the city of Bedford, located the Chevrolet outside of Hill's home, and attached the GPS unit onto the undercarriage of Hill's vehicle at approximately 4:30 A.M. The GPS device remained attached to Hill's vehicle until September 27, 2010.
On or about September 21, 2010, Lt. Mandeville met with Campbell County Investigator Tracy Emerson to review Botetourt County surveillance videos, because Emerson suspected that Hill was the culprit for similar Campbell County break-ins. Investigators initially could not connect any getaway vehicles to Hill; however, Emerson discovered that Hill had rented a silver or gray Chevrolet HHR from a car rental company several times in months prior, and a similar vehicle appeared in some of the surveillance tapes.
On the morning of September 27, 2010, a Campbell County Food Lion reported a break-in where an entry-hole had been cut into the back wall of the store, and cigarettes had been stolen.[7] Emerson called Lt. Mandeville, who shared GPS data showing that Hill's vehicle had been in the Food Lion parking lot for over an hour earlier that morning. Investigators worked on obtaining search warrants for Hill's vehicle and home. Later that day, Campbell County officers contacted the Bedford Police Department to set up surveillance of Hill's vehicle and coordinate an arrest. Bedford officers then followed Hill and associate Troy Blake when they left Hill's house. Police found stolen cigarettes when they stopped the vehicle, including cartons in the back seat of the vehicle poorly concealed by bedding, and officers took Hill and Blake into custody. After officers advised them of their Miranda rights, Blake gave a full statement implicating both Hill and himself in the Franklin County burglaries, and Hill also admitted involvement in the Franklin County crimes.

Hill v. Clarke, No. 7:15CV00201, 2016 WL 7031803, 2016 U.S. Dist. LEXIS 165655, at *1-6 (W.D.Va. Dec. 1, 2016).

         After the Campbell County Circuit Court's sentencing, Hill noted an appeal to the Court of Appeals of Virginia. However, before filing his appellate brief, Hill filed a pro se petition for a writ of habeas corpus in the circuit court, asserting that evidence derived from the GPS should have been excluded. The circuit court denied the habeas petition, and Hill did not appeal the dismissal.

         Next, Hill pursued direct appeals, but both the Court of Appeals of Virginia and the Supreme Court of Virginia denied his petitions.[8] Hill sought further review, but the United States Supreme Court denied his petition for a writ of certiorari. Lastly, Hill filed a state habeas petition in the Supreme Court of Virginia, raising fourteen claims; the court denied his petition.

         II. Current Claims

         In his current petition, Hill asserts the following fourteen claims.

         A. Substantive Claims

         1. Hill's detention is unlawful under the Fourth Amendment and Article I, § 10[9]of the Constitution in light of United States v. Jones, 565 U.S. 400 (2012), given the warrantless installation of a GPS device on his private vehicle by law enforcement to gather information. The Botetourt officers were required to secure a warrant or court order, but did neither. The government cannot rely on the good faith exception to the warrant requirement because the officers were not engaged in the lawful performance of their official duties. They were acting unlawfully, outside their statutory jurisdiction. Also, the Court of Appeals of Virginia did not rely on the good faith exception in its opinion;

         2. The Botetourt County officers' conduct in placing the GPS on the car was unlawful and violated Hill's due process rights under the Fourth and Fourteenth Amendments. The officers' conduct was outrageous when they tampered with his vehicle, engaged in criminal conspiracy, and computer crimes;

         3. Hill's detention is unlawful under the Fourth and Fourteenth Amendments because the Botetourt County sheriffs deputies acted outside their statutory jurisdiction and therefore violated the "color of office doctrine." Pursuant to that doctrine, police acting outside their jurisdiction, but not in fresh pursuit, may not utilize the power of their office to gather evidence or ferret out criminal activity not otherwise observable;

         4. Hill's detention is unlawful under the Fourth and Fourteenth Amendments because his stop and arrest in the City of Bedford related back to constitutional violations initiated on September 16, 2010, the date that the Botetourt officers attached the GPS device to Hill's car. His arrest was a continuation of the constitutional violations set in motion on September 16, 2010. Also, the Commonwealth did not argue that the officers had probable cause to arrest Hill; instead, the Court of Appeals injected that conclusion in its non-binding, per curiam order;

         5. Hill's detention is unlawful under the Sixth Amendment because the trial court denied him the right to call for evidence from a material witness, Joel Branscom, the Commonwealth's Attorney for Botetourt County. Hill sought testimony from Branscom, a "witness" to the criminal and unconstitutional acts of the deputies. Hill thus requires an evidentiary hearing to resolve the claim;

         6. Hill's detention is unlawful under the Fourteenth Amendment because the August 22, 2011 Campbell County Circuit Court order was void, such that there was no need to preserve the issue on appeal. Void orders can be challenged at any time. The trial judge knew of the violations committed by the Botetourt officers. Because the order is void, by virtue of the Jones opinion, the trial court's ruling is inconsistent with due process; and

         7. Hill's detention is unlawful under the Fourth and Fourteenth Amendments because, absent the GPS data, a jury might not have inferred that Hill was involved in the Food Lion break-in. No one saw Hill break into the Food Lion. The evidence linking Hill to the Food Lion crimes was not strong, let alone overwhelming. The GPS data was essential and the trial court erred in admitting it.

         B. Ineffective Assistance of Counsel Claims[10]

         A. Appellate counsel failed to challenge the search in the state appellate courts based on a reasonable expectation of privacy as stated in Katz v. United States. 389 U.S. 347 (1967), State v. Zahn. 2012 S.D. 19, 2012 WL 862707 (D.S.D. 2012), United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and other cases. Counsel failed to adequately pursue an argument based on outrageous police conduct;

         B. Appellate counsel failed to argue, as directed by Hill, that Hill's Fourteenth Amendment rights "under the doctrine of fundamental fairness mandated by the due process clause" had been violated by the Botetourt officers, who committed multiple criminal acts against Hill during the course of their illegal investigation. Under that doctrine, outrageous government conduct has warranted dismissal of indictments;

         C. Appellate counsel, despite express instructions from Hill, failed to argue that Hill's Fourth and Fourteenth Amendment rights had been infringed by violation of the "under color of office doctrine" by Botetourt County officials. Counsel failed to press the physical trespass and reasonable expectation of privacy arguments, as well as outrageous government conduct. Counsel failed to press arguments that Hill's arrest was illegal, and fruit of the illegal arrest should have been suppressed;

         D. Appellate counsel failed to argue in the Court of Appeals and the Supreme Court of Virginia that, absent the Court of Appeals' resort to the independent source doctrine, no probable cause existed for the Bedford Police to stop and arrest Hill in Bedford on September 27, 2010. The independent source doctrine was injected into the case by the Court of Appeals of Virginia;

         E. Appellate counsel failed to argue that the trial court erred in quashing Hill's subpoena request for Commonwealth's Attorney Joel Branscom;

         F. Appellate counsel failed to argue in the Court of Appeals and the Supreme Court of Virginia that the trial court's admission of evidence obtained by use of the GPS device was not harmless error. The standard for harmless error would have been harmless beyond a reasonable doubt; and

         G. Appellate counsel failed to argue that the independent source doctrine was not applicable to the facts in Hill's case. The issue was raised for the first time in the Court of Appeals. Counsel should have argued that the historical ...

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