United States District Court, E.D. Virginia, Norfolk Division
ROBERT EARL GAYNOR, No. 1394662, Petitioner,
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
MAGISTRATE JUDGE'S REPORT AND
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
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.
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).
STATEMENT OF THE CASE
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). 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)
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
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).
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).
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
RECOMMENDED FINDINGS OF FACT AND ...