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Pittman v. Clarke

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

February 1, 2018

DAIREN PATRICK PITTMAN, #1200439, Petitioner,
v.
HAROLD CLARKE, Director of VA Dept. of Corrections, Respondent.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Robert J. Krask, United States Magistrate Judge.

         This case is before the Court on Dairen Patrick Pittman's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and respondent's motion to dismiss. This matter was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. For the following reasons, the Court RECOMMENDS that respondent's motion to dismiss, ECF No. 10, be GRANTED.

         I. STATEMENT OF THE CASE

         Dairen Patrick Pittman ("Pittman") is an inmate currently confined at Nottoway Correctional Center, part of the Virginia Department of Corrections. ECF No. 1 at 1; ECF No. 12. Pittman waived his right to a trial by jury and, following a bench trial, was convicted in the Circuit Court for Isle of Wight County on July 3, 2013 of one count of robbery, one count of grand larceny, one count of use of a firearm during the commission of a felony, one count of possession of a firearm by a convicted felon, and one count of wearing a mask in public. ECF No. 1 at 1-2; ECF No. 11-2 at 2.[1] On February 12, 2014, the circuit court sentenced Pittman to 48 years in prison with 31 years suspended. ECF No. 11 at 1.

         Pittman appealed his conviction to the Court of Appeals of Virginia. ECF No. 11-1. The court of appeals summarized the evidence in the case as follows:

On the night of August 11, 2011 JB's Food Mart in Isle of Wight County was robbed at gunpoint. The owner of the store gave a description of the suspect to police officers as "a black male, wearing big black clothes on, jacket, rubber bands on his arm and he was wearing a mask." The owner testified that the robber demanded money and handed him a "brown plastic bag." Deputy Hopko with the Isle of Wight Sheriffs Department responded to the scene of the robbery sometime that evening. Deputy Hopko reviewed the surveillance video and observed that the robber "was wearing a mask, black sweat pants, sneakers, rubber bands on his wrist and [that] he had a natural arch in his back. He was hunched over a little bit." On August 12, 2011, Deputy Hopko, along with several other officers, responded to a call reporting someone trying to cash in stolen lottery tickets that had been taken in a robbery the night before. Deputy Hopko found [Pittman] at the store in possession of the stolen lottery tickets, and [Pittman] claimed ownership of them.
In addition to being in possession of stolen lottery tickets, Deputy Hopko observed that just prior to his arrest, [Pittman] was wearing the same sneakers observed in the surveillance video, he also had rubber bands on his wrist, and he had a hunch in his back.
[Pittman] was transported to the sheriffs office where he was Mirandized. Upon his acknowledgement of his rights, [Pittman] was interviewed by several officers. Sergeant Rodney Riddle took [Pittman] outside for a "smoke." Sergeant Riddle testified that [Pittman]:
[e]xplained to me [that] he has [a] previous robbery conviction, and he didn't want to do time; he can't take it. I told Mr. Pittman, you can take it. Be upright about your involvement about what they're looking into, and take a lesson from your actions. We're all people, we all do things that aren't appropriate. He nodded in agreement when I made that statement with him. I said you made mistakes last night, you robbed this JB store and this 7-Eleven. You made mistakes. And he repeated, yeah, man, and nod[]s his head.
[Pittman] objected to the statement he made to Sergeant Riddle about his previous criminal charges. Specifically, he argued that in a criminal case prior bad acts cannot be admitted to prove bad character. The trial court sitting without a jury stated, "Well, I think I can sort that out, and [ ] that there was a previous armed robbery, that in and of itself is not evidence of anything."
The trial court heard the testimony of several officers that [Pittman] matched the description of the person that robbed the JB's Food Mart at gunpoint. The evidence proved that [Pittman's] shoes, clothing, rubber bands on his arms, and physical hunch matched the robber in the surveillance video from JB's Food Mart. The trial judge also heard the testimony of a witness that testified she was with [Pittman] the night of the robbery and that she dropped [Pittman] off by JB's Food Mart and waited for him. When he returned to the vehicle he had a bag of money in his hands and a gun in his waistband.

ECF No. 11-1 at 1-5.

         Pittman argued on appeal that (1) the trial court erred in not suppressing evidence obtained after Pittman's allegedly illegal arrest; (2) the trial court erred in admitting evidence of his prior robbery conviction; and (3) there was insufficient evidence for conviction. Id. On June 11, 2014, the court of appeals rejected all three arguments. Id. Pittman appealed to the Supreme Court of Virginia, which refused his appeal on November 25, 2014. ECF No. 1 at 2. Pittman filed a petition for rehearing, which the Virginia Supreme Court denied on March 6, 2015. ECF No. 11-4 at 8.

         Pittman filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on July 5, 2016. ECF No. 1 at 3; ECF No. 11-2 at 1. Pittman's state petition alleged that his trial counsel was ineffective because he "knowingly allowed" Pittman to be tried while Pittman "was incompetent to stand trial." ECF No. 11-2 at 8. On December 8, 2016, the Supreme Court of Virginia dismissed the habeas petition because it was not filed within one year from that court's refusal of Pittman's appeal on March 6, 2015, and was thus untimely under Va. Code Ann. § 8.01-654(A)(2).[2] ECF No. 1 at 26. On March 23, 2017, the Supreme Court of Virginia denied Pittman's petition for rehearing on his habeas claims. ECF No. 1 at 27.

         Pittman then filed this federal habeas petition on May 1, 2017. ECF No. 1. In his federal petition, Pittman ...


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