United States District Court, E.D. Virginia, Alexandria Division
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.
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).
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,
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
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.
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.
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.
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
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.
Merits Standard of Review
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