United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. Krask, United States Magistrate Judge.
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
STATEMENT OF THE CASE
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. On February 12, 2014, the circuit court
sentenced Pittman to 48 years in prison with 31 years
suspended. ECF No. 11 at 1.
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
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
nods 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
ECF No. 11-1 at 1-5.
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
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). 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.
then filed this federal habeas petition on May 1, 2017. ECF
No. 1. In his federal petition, Pittman ...