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Pork v. Clarke

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

January 29, 2018

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

          MEMORANDUM OPINION (ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE.

         Rayon Lavelle Pork, a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. I), challenging his convictions in the Circuit Court of the City of Portsmouth for possession with intent to manufacture, distribute, or sell heroin, possession of a firearm while possessing with intent to distribute a Schedule I or II drug, and possession of a firearm within ten years after a non-violent felony conviction.[1] On December 12, 2017, United States Magistrate Judge Roderick Young issued a Report and Recommendation (ECF No. 21) recommending that Respondent's motion to dismiss be granted and the action be dismissed. Pork has submitted Objections to the Report and Recommendation. For the reasons that follow, Pork's Objections will be overruled and the Report and Recommendation will be accepted and adopted.

         I. THE REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendations:

         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 stale 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. Landrigan, 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 Assistance of Counsel

         In Claim 1, Pork contends that he failed to receive the effective assistance of counsel on appeal. A proper understanding of this claim requires a brief review of ...


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