Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Prince v. Clarke

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

March 21, 2018

ROBERT LINDWOOD PRINCE, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard United States Magistrate Judge

         This matter is before the Court on Petitioner Robert Linwood Prince's ("Petitioner") pro se Petition for a Writ of Habeas Corpus ("the Petition") filed pursuant to 28 U.S.C. § 2254, ECF No. 1, and Respondent Harold W. Clarke's ("the Respondent") Motion to Dismiss, ECF No. 13. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. The undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that the Respondent's Motion to Dismiss, ECF No. 13, be GRANTED, and the Petition, ECF No. 1, and Amended Petition, ECF No. 4, be DENIED and DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKROUND

         On or about September 28, 2012, Petitioner was riding as a passenger in a vehicle that was pulled over for a traffic violation by Petersburg Bureau of Police Officers Shayna B. Perlstein ("Perlstein") and Steven J. Wade ("Wade")[1]. The Court of Appeals of Virginia's Opinion provided the following recitation of the evidence presented at Petitioner's bench trial:

After police stopped the vehicle in which [Petitioner] was a passenger, they learned [Petitioner] had an outstanding capias. Officers Wade and Perlstein asked [Petitioner] to step out of the vehicle, advised him he was under arrest, and handcuffed him. Upon noticing a large bulge in [Petitioner]'s cheek, Wade asked [Petitioner] what was in his mouth. After twice denying he had anything in his mouth, appellant attempted "to make a swallowing gesture."
Concerned [Petitioner] might choke, Wade "pleaded" with [Petitioner] to spit out the object in his mouth. Wade also grabbed [Petitioner]'s chin and tried to pry open his mouth to prevent [Petitioner] from choking. Instead, Petitioner made another swallowing motion. Coughing and wheezing, [Petitioner] fell to the ground. Wade asked [Petitioner] if he were choking, and [Petitioner] motioned his hand affirmatively.
Wade tried several maneuvers to dislodge the item from [Petitioner]'s throat, but to no avail. With [Petitioner]'s hands cuffed behind his back, Wade had difficulty performing the Heimlich maneuver. When [Petitioner] went limp and appeared to stop breathing, Wade directed Perlstein to remove the handcuffs and performed the Heimlich maneuver again. After Wade's third attempt, [Petitioner] began to cough and breathe. [Petitioner] spat out a "greenish and white baggy" into his hands and threw it under Wade's vehicle.
Wade attempted to place [Petitioner] back in handcuffs, but [Petitioner] resisted. The two officers instructed [Petitioner] several times to stop resisting, but he continued to do so. Wade wrestled [Petitioner] to the ground, but the officers were unable to handcuff him. [Petitioner] did a pushup with Wade lying on top of him.
Only after Perlstein deployed her OC spray in Petitioner's face were the officers able to handcuff him.
A search of [Petitioner] produced $170. Perlstein recovered a bag of what appeared to be marijuana from the location where appellant struggled with Wade. Wade retrieved the baggy from beneath his car and discovered it contained a white powdery substance later determined to be cocaine.

ECFNo. 15, attach. 1 at 1-2.

         On April 3, 2014, following a bench trial, Petitioner was found guilty of obstruction of justice and possession of cocaine with intent to distribute, second offense, and on June 10, 2014, was sentenced to a total of eleven years of incarceration, with eight years suspended. See ECF No. 4 at 1; ECF No. 15 at 1, ¶ 1. See also Petersburg Circuit Court Record at 179 (sentencing Petitioner to ten years for possession of cocaine with intent to distribute and twelve months for obstruction of justice). Accordingly, Petitioner is detained pursuant to a final judgment of the Circuit Court for the City of Petersburg, Virginia entered on June 10, 2014. ECF No. 15 at 1, ¶ 1.

         On or about July 2, 2014, Petitioner appealed his convictions to the Court of Appeals of Virginia on the following four grounds: (1) the trial court erred in denying Petitioner's Motion to Suppress because the police officers took "unreasonably reckless and dangerous actions designed to search him and seize contraband from him, rather than a reasonable attempt to keep him from choking;" (2) the evidence was insufficient to support his conviction for possession of cocaine; (3) the evidence was insufficient to support his conviction for obstruction of justice; and (4) the trial court erred by refusing to order forensic DNA testing of the cocaine recovered at the scene. See ECF No. 15 at 1-2 (citing ECF No. 15, attach. 1 ("Respondent's Exhibit A")).

         In a per curiam opinion dated June 16, 2015, the Court of Appeals of Virginia denied Petitioner's appeal. ECF No. 15, attach. 1. The Court of Appeals of Virginia also denied Petitioner's petition for rehearing on September 22, 2015. On March 28, 2016, the Supreme Court of Virginia refused to entertain Petitioner's further appellate endeavors. ECF No. 15, at 2, ¶ 2. Contrary to Petitioner's contentions in the Amended Petition, it does not appear that Petitioner ever sought state habeas relief. See ECF No. 4 at 6 (answering that he raised claims in a habeas petition filed with the City of Petersburg Circuit Court).

         Petitioner filed his original § 2254 Petition for federal habeas relief on January 4, 2017, wherein he raised the following three grounds: (1) there was insufficient evidence to support Petitioner's convictions beyond a reasonable doubt, in light of the "wildly incredible story" told by the arresting police officers and the lack of DNA evidence linking Petitioner to the cocaine and marijuana recovered at the scene; (2) the trial court erred when it denied Petitioner's motion for a forensic examination of the evidence recovered at the scene; and (3) the trial court committed reversible error when it failed to grant Petitioner's Motion to Suppress to exclude the cocaine on the grounds that Petitioner's seizure was premised upon racial pretext. ECF No. 1 ("the Petition") at 2-4.

         By Order dated February 21 2017, the Court's directed Petitioner to amend his Petition to use the standard pro se habeas petition Form AO 241, and to also amend his original Petition to reflect Harold W. Clarke as the proper Respondent. ECF No. 3. On March 24, 2017, Petitioner filed an Amended Petition ("the Amended Petition") using the proper Form and naming the proper Respondent. ECF No. 4. However, it appears to the undersigned that the claims Petitioner raised in the Amended Petition differ from those raised in the original Petition. While the original Petition (ECF No. 1) asserted three distinct claims, the Amended Petition (ECF No. 4) alleges only two broadly-worded claims, which to some extent overlap with the specific, discrete three claims asserted in the original Petition and with the arguments raised on appeal to the Court of Appeals of Virginia. In comparison, the Amended Petition asserts two grounds for federal habeas relief: (1) insufficient evidence to support Petitioner's convictions and (2) failure of the trial court to suppress the drugs and evidence in violation of Petitioner's Fourth Amendment rights. See ECF No. 4 at 5-1.[2]The Amended Petition did not indicate whether Petitioner intended to incorporate or abandon the claims previously asserted in the Petition. Thus, the undersigned's recommendation will address the claims asserted in both the Petition (ECF No. 1) and the Amended Petition (ECF No. 4). In the interest of clarity, these claims will be characterized and renumbered as follows:

(1) insufficient evidence to support both of Petitioner's convictions;
(2) trial court erred by denying Petitioner's Motion for Forensic Examination of the drugs found at the scene;
(3) trial court erred by denying Petitioner's Motion to Suppress based on violations of his Fourth Amendment rights because of the unreasonable search of Petitioner which led to his choking;
(4) trial court erred by denying Petitioner's Motion to Suppress based on violations of his Fourth Amendment rights because of the unreasonable, racially pretextual stop of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.