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Gaynor v. Clarke

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

March 19, 2018

ROBERT EARL GAYNOR, No. 1394662, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE

         Petitioner Robert Earl Gaynor is a Virginia offender sentenced to ten years' imprisonment, with eight years suspended, following his conviction for grand larceny for stealing a cell phone. His federal petition for habeas corpus challenges only the sufficiency of the evidence against him. Respondent moved to dismiss the petition, and the matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72(b) of the Federal Rules of Civil Procedure.

         Gaynor has exhausted his first evidentiary claim, but he does not plausibly allege entitlement to federal relief under the deferential standard of 28 U.S.C. § 2254(d). Accordingly, this Report RECOMMENDS that the court GRANT Respondent's motion (ECF No. 10), and DISMISS the Petition (ECF No. 1).

         I. STATEMENT OF THE CASE

         Following a bench trial, the Circuit Court for the City of Norfolk convicted Gaynor of grand larceny. R. at 94, 143, Commonwealth v. Gaynor, No. CR15-2739 (Va. Cir. Ct. Feb. 11, 2016) (trial transcript).[1] Final judgment was entered April 14, 2016. The court sentenced Gaynor to a total of 10 years' imprisonment with 8 years suspended, for an active sentence of 2 years. R. at 73-75, Commonwealth v. Gaynor, No. CR15-2739 (Va. Cir. Ct. Apr. 14, 2016) (sentencing order).

         Gaynor appealed his conviction to the Court of Appeals of Virginia, which denied the appeal in a per curiam opinion.Gaynor v. Commonwealth, No. 0766-16-1 (Va. Ct. App. Dec. 16, 2016) (per curiam) (ECF No. 12-1) . He argued the evidence presented at trial was insufficient to prove he knew the phone he was accused of taking did not belong to him or that he believed the rightful owner could be "immediately determined." In denying his appeal, the Court of Appeals summarized the evidence relevant to his arguments as follows:

[T] he evidence proved that David Sterling [the owner of the phone] shopped at the Wal-Mart in Norfolk on Military Highway. As he completed his purchases, [Gaynor] and his friend Rebecca Robertson stood in line behind Sterling at the checkout area. After leaving the store, Sterling realized he had left his iPhone. He returned to the store to search for it, but did not find it.
Upon returning home, Sterling used a device to locate the phone's current location. He also called the phone. When a voicemail unknown to Sterling picked up, Sterling notified the police and provided them with the phone's location.
A police detective visited the address provided by Sterling and determined that [Gaynor] lived there. [Gaynor] later spoke to the detective by phone and acknowledged he had an iPhone he found at the Wal-Mart on Military Highway and that "he could put his hands on it." After several days passed without [Gaynor] producing the phone, the detective arrested him for grand larceny.
Following his arrest, [Gaynor] gave a statement to the police. He stated that Robertson [his friend] handed him a cell phone as they were leaving the checkout area at Wal-Mart and told him it was hers. [Gaynor] also maintained that an argument ensued between him and Robertson about why Robertson had taken the phone and [Gaynor's] insistence that she return it.
At trial, however, video footage from Wal-Mart showed [Gaynor] picking up the cell phone after Sterling left it on the checkout counter. The phone was never recovered.

Id. at 1-2. The Virginia Court of Appeals found that a rational fact finder could conclude that [Gaynor] took the phone with the intent to steal it and to permanently deprive its rightful owner of it." Id. at 3. Thereafter, Gaynor - through counsel - filed a petition for appeal in the Supreme Court of Virginia, which was refused. Gaynor v. Commonwealth, No. 170077 (Va. Aug. 21, 2017) (ECF No. 12-2).

         In his petition to this court, Gaynor raises an evidentiary claim, which he properly exhausted by raising it on direct appeal from his conviction. He asserts that the evidence at trial was insufficient to prove he intended to commit the crime. See Pet. at 3-4 (ECF No. 1).

         The Respondent filed a Motion to Dismiss the Petition, arguing that Gaynor's claim is without merit. See Resp't's Br. (ECF No. 12) . Gaynor received notice of the motion and his opportunity to respond as required by Local Rule 7 (K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) . The deadline for an opposition brief has passed with no action from Gaynor. The matter is now ripe for review.

         II. RECOMMENDED FINDINGS OF FACT AND ...


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