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Freeman v. Clarke

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

December 22, 2017

Tyvone Freeman, #1155841, Petitioner,
v.
Harold Clarke, Director, Virginia Department of Corrections, Respondent.

          MAGISTRATE JUDGED REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE

         Petitioner Tyvone Freeman seeks a writ of habeas corpus alleging constitutional errors underlying his state convictions for robbery, attempted robbery, abduction for pecuniary benefit and related use of a firearm charges. The Respondent moved to dismiss Freeman's petition, and the matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure. Freeman's claim of prosecutorial misconduct is procedurally defaulted, and Freeman has failed to show cause and prejudice to excuse the default. However, Freeman also claims he was denied effective assistance of counsel during his sentencing hearing and on appeal, when his attorney incorrectly advised the court that it was required to run all of his mandatory gun sentences consecutively. As set forth in the recommendation below, this report concludes that the state court's denial of Freeman's ineffectiveness claims is premised upon an unreasonable factual finding that counsel's error was "strategic." This resulted in an application of Strickland which cannot be sustained on the record before the state habeas court. Accordingly, this report recommends the Respondent's motion to dismiss be GRANTED IN PART and DENIED IN PART and that the court GRANT Freeman's request for counsel (ECF No. 3), and following appointment, direct the parties to confer regarding the need for, and availability of an evidentiary hearing to finally resolve Freeman's ineffectiveness claims.

         I. STATEMENT OF THE CASE

         Freeman is incarcerated at the River North Correctional Facility in Independence, Virginia. He is serving an active 38-year prison term pursuant to final judgment orders following his criminal conviction in the Circuit Court of the City of Richmond, entered on February 15, 2013, for crimes he committed on July 26, 2012.

         On that day, Freeman entered the offices of the Peter Paul Development Center[1] with a pistol in hand and told the three people in the reception area, Anthony Christian, Danyelle Barnes, and Eddie Ross, "I want everyone's wallet." Freeman v. Commonwealth, No. 0 818-13-2, slip op. at 1 (Va. Ct. App. Apr 29, 2014) (per curiam). When these first three people he encountered told him they had no money, Freeman moved farther into the office, encountering Ingrid Deroo and Damon Jiggetts. He pointed the gun at each of them ordering them to return with him back into the reception area. Id. at 1-2. Shortly thereafter, a sixth person, Jonathan Armstrong, walked down the hall and on confronting Freeman was also ordered to remain in the reception area. There, Freeman told the six victims, "If somebody don't give me any money, somebody is going to get hurt." Id. at 2. Ross was the only victim to give Freeman any money: eight dollars and "some change." Id. at 3. When Ross went to hand the money to Freeman, some of it fell to the floor. Id. Freeman picked up the dropped money and ran from the office. Id.

         Originally Freeman was charged with 28 felonies. At trial without a jury, the Richmond Circuit Court convicted Freeman of 16 felonies, including two counts of abduction for pecuniary benefit for forcing Deroo and Jiggetts - but not Armstrong - into the reception area. He was also convicted on one count of robbery for taking the money from Ross and five counts of attempted robbery of the five other victims. Additionally, he was convicted on eight separate charges of using a firearm in the commission of the eight underlying felony offenses. Resp't's Br. at pp. 1-2 (ECF No. 13).

         At sentencing the prosecutor tendered a sentencing worksheet with the guideline range computed based on Freeman's robbery convictions. Absent a reason for a varying sentence, Virginia courts generally apply the sentencing guidelines for the most serious offense of which the defendant was convicted.[2]Va. Sentencing Guidelines Manual, "Introduction, " at 5 (15th ed. 2012). In this case, the guideline range for Freeman's offenses calculated using the robbery sentencing worksheet was 18 years, 2 months, to 28 years, 6 months. Sentencing Guidelines Worksheet (Apr. 8, 2013) . The prosecutor had also calculated the range using the abduction offense which she described during sentencing as 13 years, 9 months, to 33 years, 1 month. Trial Tr. at 155-56.

         Both attorneys represented to the court that they agreed to use the robbery guidelines for the sentencing worksheet, because the mandatory sentences for Freeman's eight firearms charges required the court to impose a 38-year sentence.[3] As a result, both counsel stated that the minimum total mandatory sentence on the firearms charges would exceed the highest end of the guideline range when calculated using either the robbery or abduction worksheets. Trial Tr. at 155-56. Consequently, neither counsel evaluated for the court which guidelines range to use (abduction or robbery), apparently believing it made no difference. The prosecutor handed up the worksheet without marking the box for a mandatory minimum. When asked by the trial judge if the worksheet reflected the mandatory time, she indicated, "I didn't check the box. I could do that, but then all the boxes would say 38 years and I didn't know if that would be helpful to you to have all 38 years." Trial Tr. at 156. The court inquired of Freeman's counsel, "Do you agree?" and he responded, "It's 38 years." The court then checked the box and wrote below "38 yrs." Id.; Sentencing Guidelines Worksheet (April 8, 2013). Although both counsel correctly calculated the mandatory sentences if all eight were run consecutively, however, a recent decision by the Supreme Court of Virginia confirmed that the mandatory gun sentences could be run concurrently with each other and thus, the court had discretion to impose less than a 38-year sentence. Brown v. Commonwealth, 733 S.E.2d 638, 640 (Va. 2012).

         In his argument on sentencing, Freeman's counsel stated that he had advised his client of the mandatory sentences "and that this court is bound by law and by statute to impose that." He acknowledged that "there's been some tinkering with that and whether you can run any of that concurrent, but you can't run it concurrent with the underlying charge." He concluded, stating, "I don't know how you would structure a sentence of that nature [presumably less than 38 years], and I don't think the law allows you to. So I believe we are stuck at 38 years." Trial Tr. at 157. He then asked the court to "temper its justice with mercy, even though your hands are tied to the extent of the 38-year sentence. I would ask you not to impose anything more than that." Trial Tr. at 159. He urged the court to suspend all the time on the remaining underlying offenses "because 3 8 years is well above the guidelines." He also noted his client would be "well into his 60s" before he's eligible to be released. He noted that two of the witnesses stated that Freeman apologized for his actions as he left the scene of the robbery, and two others described him as flustered and "distressed." Trial Tr. at 159.

         The prosecutor then argued that Freeman's victims suffered a loss much more significant than the stolen funds. She stated they were traumatized by Freeman's actions and observed that Freeman had a long record. She asked the court to consider all of that - but did not request any specific sentence. Trial Tr. at 161.

         For the charges of robbery, attempted robbery, and abduction, the Richmond Circuit Court imposed a total sentence of 110 years in prison, though it suspended that entire sentence. For the eight firearms convictions, the court imposed an active sentence of thirty-eight years of imprisonment, three years for the first offense, and five for each additional offense, all running consecutively. Sentencing Orders (Ex. 1 to ECF No. 13). After pronouncing the sentence, the court observed "I'm going to go with the mandatory minimum on this. This is more than we do in murder cases, so I think it's a sufficient punishment for what happened this day." Trial Tr. at 164.

         On direct appeal, Freeman challenged the trial court's finding that Freeman's actions were sufficient to support both robbery and abduction charges, arguing that his detention of the victims was integral to the robbery and thus could not be used to support the abduction charges. The Virginia Court of Appeals affirmed Freeman's conviction. Freeman, slip op. at 1. He filed a petition for appeal in the Supreme Court of Virginia, which that court denied. Resp't's Br. at 2 (ECF No. 13).

         On June 25, 2015, Freeman timely sought a writ of habeas corpus in the Richmond Circuit Court. Freeman asserted the following claims:[4]

(1) The trial court erred in imposing a sentence of 3 8 years for his multiple convictions for the use of a firearm in a felony, arguing that he had not previously been convicted of this offense prior to his trial.
(2) Counsel rendered ineffective assistance in failing to object to the trial court's sentence for his offenses alleging the use of a firearm in the commission of a felony.
(3) The prosecution acted vindictively in bringing against him a voluminous number of charges, alleging that it did so only because he was "trying to do the Central State thing."[5]
(4) Counsel rendered ineffective assistance in failing to object to the filing of separate indictments for the use of a firearm related to the abduction and attempted robbery of both victims Jiggetts and Deroo. Freeman argues that the abduction and robbery of each victim was part of "one common scheme or plan, " and should thus not have supported separate counts for the use of a firearm in their commission.
(5) Counsel rendered ineffective assistance in failing to seek the running of the sentences imposed for the use of a firearm in commission of a felony as concurrent to one another.
(6) Counsel rendered ineffective assistance in failing to object to the indictments alleging the use of a firearm in the commission of the attempted robberies and the completed robbery. Freeman argues these acts occurred together and should therefore have been treated as a one offense.
(7) Counsel failed to consult with him regarding appealing the sentence imposed.

         State Pet. at 4-15.

         On December 4, 2015, without taking evidence, the Richmond Circuit Court denied and dismissed Freeman's habeas petition. As relevant here, the state habeas court dismissed Freeman's claim of prosecutorial vindictiveness (Federal Claim 1), finding the claim should have been raised at trial or on direct appeal. Freeman v. Clark, No. CL15-3081-2, Final Order at 3-4 (, Ex. 2 to ECF No. 13) (citing Slayton v. Parrigan, 215 Va. 27, 30 (1974)). The court also denied Freeman's claims of ineffectiveness (Federal Claims 2 and 3), concluding that Freeman's attorney made a strategic choice not to seek concurrent sentences on the eight firearms charges and request suspension of the remaining sentences. Id. at 11-13.[6] Order (Ex. 2 to ECF No. 13).

         Freeman appealed the trial court's denial to the Supreme Court of Virginia. Pet. for Appeal (Ex. 3 to ECF No. 13) . In his petition, Freeman "assigned . . . issues to be raised on appeal" that he numbered 1 through 7. The Supreme Court construed these "issues" as assignments of error. They overlapped, but did not correspond exactly with Freeman's claims in Circuit Court. Freeman also identified two additional assignments of error which he numbered 52 and 53. Assignment of Error 52 argued the Richmond Circuit Court failed to give sufficient explanation for denying his state habeas corpus petition to allow him to respond to the denial. Assignment of Error 53 alleged he "was not required to seek and exhaust administrative remedies prior to filing his claims with the district court." Id. at 5.

         On December 12, 2016, the Supreme Court of Virginia dismissed Freeman's appeal as to Assignments of Error 4 through 7, and 53 of his petition, finding that Freeman failed to comply with a Virginia Supreme Court Rule requiring assignments of error to identify error in the ruling of the court from which the appeal is taken. Va. Sup. Ct. R. 5:17(c) (1) (iii) . In the same order, the Supreme Court of Virginia refused the appeal as it related to petitioner's Assignments of Error 1 through 3, and 52. Va. Sup. Ct. Order (Ex. 4 to ECF No. 13).

         On February 7, 2017, Freeman timely filed his federal petition for a writ of habeas corpus in this court.[7] Freeman's federal petition raises one due process claim and two claims related to the ineffectiveness of trial counsel. Specifically, he argues:

(1) A deprivation of due process, premised upon a claim of prosecutorial vindictiveness (State Claim 3) (Assignment of Error 4);
(2) Ineffective assistance of counsel based upon his counsel's error regarding the mandatory calculation of sentence for petitioner's eight firearm violations (State Claims 2 and 5) (Assignment of Error 2);
(3) Ineffective assistance of counsel based counsel's alleged failure to consult with the petitioner concerning the advisability of appealing the sentence imposed by the trial ...

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