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Pork v. Clarke

United States District Court, E.D. Virginia, Richmond Division

December 12, 2017

RAYON LAVELLE PORK, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          REPORT AND RECOMMENDATION

          Roderick C. Young United States Magistrate Judge.

         Rayon Lavelle Pork ("Pork"), a Virginia inmate proceeding pro se and in forma pauperis, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. I).[1] Respondent has moved to dismiss the action. (ECF No. 13.) The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons that follow, it is RECOMMENDED that the § 2254 Petition be DISMISSED.

         A. Current Claims for Relief

         In his § 2254 Petition, Pork demands relief upon the following grounds:

Claim 1 Pork failed to receive the effective assistance of counsel when the Court of Appeals of Virginia dismissed a portion of his petition for appeal for failure to comply with Va. Sup. Ct. R. 5:17(c)(1)(iii). (§ 2254 Pet. 5.)
Claim 2 "Illegal Terry[2] stop in violation of the 4th Amendment. Officer conducted a Terry stop on me based upon an anonymous tip that did not have any indicia of reliability or predictive information." (Id. at 7.)
Claim 3 "Unlawful seizure in violation of the 4th Amendment. The initial encounter with the officer transitioned into a seizure with the arrival of multiple officers who positioned themselves around my vehicle." (Id. at 8.)
Claim 4 "Unlawful search in violation of the 4th Amendment. The officer unlawfully searched my vehicle because he did not have on record at my suppression hearing any testimony that he believed I was dangerous or may gain access to a weapon." (Id. at 10.)

         As explained below, Claim 1 lacks merit and Claims 2, 3, and 4 fail to provide a viable basis for federal habeas relief.

         B. Applicable Constraints upon Collateral Review

         In order to obtain federal habeas relief, at a minimum, 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). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, ''[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(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). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Lcmdrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). Given the foregoing restraints, the findings of the Virginia courts in rejecting Claim 1 Figures prominently in this Court's analysis.

         C. Alleged Ineffective ...


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