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Drummond v. Clarke

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

February 23, 2018

Marquise O'Bryan Drummond, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

         Marquise O'Bryan Drummond, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of a conviction entered in the Circuit Court of Accomack County. Case No. 13CR079-01 and -02. Before the Court is the respondent's Motion to Dismiss the petition.

         I. Background

         On February 13, 2014, following a bench trial, Drummond was convicted of one count each of possession of ammunition by a felon and possession with intent to distribute cocaine. On June 26, 2014, he was sentenced to an aggregate sentence of twenty (20) years in prison with fourteen (14) years suspended. Drummond appealed the judgment to the Court of Appeals of Virginia, arguing that the evidence was insufficient to sustain the convictions. The petition for appeal was denied on March 26, 2015. Drummond v. Commonwealth, R. No. 1352-14-1 (Va. Ct. App. Mar. 26, 2015). The Supreme Court of Virginia refused a petition for further review on November 2, 2015. Drummond v. Commonwealth, R. No. 150622 (Va. Nov. 2, 2015).

         On September 16, 2016, Drummond filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, alleging that he received ineffective assistance of trial and appellate counsel for several reasons. The petition was dismissed on May 30, 2017. Drummond v. Clarke, R. No. 161342 (Va. May 30, 2017); Dkt. No. 12, Ex. 1.

         Drummond then turned to the federal forum and timely filed this petition for relief pursuant to § 2254 on June 13, 2017, reiterating the same claims he exhausted in his state habeas corpus proceeding. See 28 U.S.C. § 2254(b); Granberry v. Greer, 481 U.S. 129 (1987). Specifically, Drummond argues that he is entitled to § 2254 for the following reasons:

1. He received ineffective assistance of trial counsel when his lawyer failed to make vital pretrial investigations.
2. He received ineffective assistance of trial counsel because his lawyer failed to make an adequate and timely motion for pretrial discovery of all exculpatory evidence.
3. He was denied effective assistance of trial counsel when his attorney failed to object to "inculpatory statements" made by non-testifying witnesses that violated the Confrontation Clause.
4. The prosecutor committed misconduct by allowing the Commonwealth's chief witness to testify falsely.
5. The prosecutor committed misconduct by failing to disclose exculpatory evidence.
6. His right to due process was violated when the trial court permitted the prosecution to withhold exculpatory evidence.
7. He received ineffective assistance of appellate counsel; when his attorney failed to argue that the trial court erred by refusing to compel the prosecutor to disclose the surveillance tape and to make the confidential informants available for cross-examination.

         On October 10, 2017, respondent filed a Rule 5 Answer and a Motion to Dismiss the petition with a supporting brief and exhibits, and provided petitioner with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 10-13] Petitioner subsequently filed a traverse. [Doc. No. 16] Accordingly, this matter is ripe for disposition.

         II. Procedural Default

         Three of the claims raised in this petition are procedurally defaulted. When Drummond first raised claims 4 (suborning of perjury by the prosecutor and failure to allow Drummond an opportunity to interview the confidential informants), 5 (prosecution's failure to disclose exculpatory evidence) and 6 (errors with respect to the confidential informants and surveillance tape) in his petition for a state writ of habeas corpus, the Supreme Court of Virginia determined pursuant to Slavton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), that these non-jurisdictional issues could have been raised at trial and on direct appeal and therefore were not cognizable in a habeas proceeding. Drummond v. Clarke, R. No. 161342, slip op. at 6 - 7.

         On federal habeas corpus review, § 2254(d) mandates that a state court's finding of procedural default be presumed correct, provided that the state court relied explicitly on procedural grounds to deny petitioner relief and that the procedural rule relied on is an independent and adequate state ground for denying relief. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The Fourth Circuit has consistently held that "the procedural default rule set forth in Slavton constitutes an adequate and independent state law ground for decision." Mu'min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Therefore, the Virginia court's express finding that Slavton barred review of Claims 4 through 6 of this petition also precludes federal review of those claims.[1]

         A federal court may not review a procedurally barred claim absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris v. Reed. 489 U.S. 255, 262 (1989). In his Traverse to the Motion to Dismiss [Dkt. No. 16], Drummond does not contest that he has procedurally defaulted Claims 4, 5 and most of 6, nor does he attempt to make a showing of cause and prejudice to excuse his defaults. Accordingly, Claims 4, 5 and most of 6 are procedurally barred from federal review.

         III. Merits Standard of Review

         When a state court has addressed the merits of a claim raised in a federal habeas petition, the federal court may not grant the petition based on that claim unless the state court's adjudication is contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each of those standards of review. See Williams v. Taylor,529 U.S. 362, 412-13 (2000). A state court's determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." 14 at 413. Under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly." Woodford v. Visciotti,537 U.S. 19, 24-25 (2002). Thus, "[t]he question under the AEDPA 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. Mandrigan,550 U.S. 465, 673 (2007). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an ...


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