United States District Court, E.D. Virginia, Alexandria Division
Christian White, 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 his
conviction of drug offenses following a bench trial in the
Circuit Court of the City of Portsmouth. On May 30, 2018,
respondent filed a Rule 5 Answer and a Motion to Dismiss the
petition with a supporting brief and exhibits, and supplied
petitioner with the notice required by Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule
7K. [Dkt. No. 7-10] On June 18, 2018, petitioner submitted a
reply captioned as a Memorandum of Law in Support of Motion
for Summary Judgment. [Dkt. No. 13] Accordingly, this matter
is now ripe for disposition. For the reasons that follow,
respondent's Motion to Dismiss will be granted, and the
petition will be dismissed, with prejudice.
April 29, 2015, White was convicted of possession of cocaine
with intent to distribute, third offense; conspiracy to
distribute cocaine; and misdemeanor possession of marijuana
with intent to distribute. Case Nos. CR 1401444-01 through
-03. On October 6, 2015, he was sentenced to ten years
incarceration on the conviction of possession of cocaine, and
he received suspended sentences on the two additional
charges. Resp. Ex. 1. In an opinion denying White's
subsequent petition for direct appeal, a judge of the
Virginia Court of Appeals described the facts underlying the
convictions as follow:
[T]he evidence proved that on May 30, 2014, a search warrant
was executed at 552 Madison Street, Apartment B in
Portsmouth. Detective R. Aguilar obtained the warrant as part
of an ongoing investigation to build a case against
appellant. Prior surveillance from around 8:00 a.m. that
morning by Sergeant Jeremiah Lee had revealed the presence of
appellant and an associated green Lexus at the address.
Appellant drove away in the Lexus at one point, but returned
shortly after. Lee remained in his surveillance location
during the subsequent execution of the warrant.
Detective J. L. Dempsey was the assistant team leader for the
SWAT team executing the warrant. He testified that in
attempting to gain entry into the residence, the team found
the door barricaded by a couch, necessitating a shotgun
breach to remove the door. Dempsey was the first to encounter
appellant, who was in a state of partial undress in an
upstairs bedroom with Shawnkesha Roscoe, appellant's
mistress. Roscoe was on the bed, and appellant appeared to be
moving from the bed when Dempsey entered. Dempsey did not
notice any drugs or paraphernalia in plain sight, but
testified that his purpose was to take the individuals into
custody and that appellant was compliant with his requests.
Officer E. Sjoberg was behind Dempsey after entering the
residence and cleared the upstairs bedroom. Sjoberg noticed
the toilet bowl was still in the process of flushing, and he
reached in to recover a lid to a container. Appellant's
brother, Melvin White, was on the floor outside the bathroom.
Sjoberg held White there until the special investigations
officer recorded the location and collected the evidence.
While the front door breach was still in progress, Detective
Adams, part of the special investigations unit assisting the
SWAT team, established the rear perimeter of the residence.
Before the team gained entry, White had opened the back door
and Adams instructed him to get on the ground. Instead of
complying, White closed and locked the door, retreating back
into the residence and up the stairs where Sjoberg found him
Detective Shelkey collected evidence at the scene once the
location was secure. From appellant's person, Shelkey
recovered $1, 221 in cash currency of mostly
small-denomination bills. From White, she recovered $220 of
small-denomination bills and a small bag of suspected
marijuana from his wallet. A digital scale disguised to look
like a cell phone was recovered from inside the living room
closet. In the upstairs bathroom, Shelkey recorded a clear
plastic bag containing marijuana that had been recovered from
the toilet and a clear plastic bag of cocaine that was
recovered from the bathroom floor. Shelkey also recovered a
Dominion Power bill for the residence that listed
appellant's name, as well as a personal letter addressed
to appellant found in the front bedroom. When searching the
Lexus, Shelkey recovered $2, 700 in hundred-dollar bills from
a disc changer in the trunk.
The investigation then moved to the downtown office of the
Portsmouth Police Department. Detective Adams smelled
marijuana near the holding area where Roscoe was being held.
Roscoe reached toward her waist, and Adams told her to wait
until he called a female officer to search her. Detective
Shelkey entered a room with Roscoe, who already had small
"quarter bags of marijuana" in her hand. Shelkey
instructed her to place them on the table. Shelkey asked if
that was everything, and Roscoe said no. Roscoe retrieved
additional marijuana and cocaine from her genital area.
Shelkey processed all the items recovered from Roscoe into
evidence. Adams advised Roscoe of her Miranda rights and
asked for her basic information, and Roscoe provided her
At appellant's bench trial, Brian Meinweiser was
introduced as an expert in analysis and identification of
controlled substances. A total or forty-one individual
baggies of cocaine and seventeen individual baggies of
marijuana were collected for evidence, and all tested were
positively identified as cocaine and marijuana. Sergeant S.
W. Johnson testified as an expert in the use, packaging, and
distribution of narcotics. Johnson reviewed the drugs
submitted into evidence and immediately identified the
packaging method of the marijuana as a "nickel bag"
and "dime bag," and the cocaine as "dime
rocks," with numerous packages of each. He opined that
due to the scales, the manner of packaging, and the two
different types of drugs, the drugs were inconsistent with
The Commonwealth called [Melvin] White to testify against
appellant. He testified that on the day of the SWAT raid, he
was "helping [appellant] chop up some cocaine and
hand-deliver [it] to some people." He admitted to
selling drugs with appellant in the weeks leading up to May
30, 2014, and to being present when appellant acquired the
drugs from his buyer. White testified that appellant received
a solid "700" of cocaine and broke it down with a
razor and a plate before putting it into individual bags.
White stated that his agreement with appellant was to receive
part of the proceeds for selling the drugs. When appellant
first noticed the police, he told White to take the cocaine
and marijuana and run out the back door. White corroborated
Adams' testimony that he ran into the officers at the
back door before shutting and locking the door. He then ran
upstairs, and appellant told him to flush the drugs in the
toilet. Roscoe then ran upstairs with appellant and took the
marijuana into the upstairs bedroom. White identified the
individual bags of drugs introduced at trial and examined by
Meinweiser as the drugs he tried to flush down the toilet.
White v. Commonwealth. R. No. 1504-15-1 (Va. Ct.
App. Apr. 14, 2016), slip op. at 1-4; Resp. Ex.
three-judge panel of the Court of Appeals likewise denied
White's petition for appeal on August 2, 2016, Resp. Ex.
3, and the Supreme Court of Virginia refused his petition for
appeal on March 6, 2017. White v. Commonwealth. R.
No. 161261 (Va. Mar. 6, 2017); Resp. Ex.4.
filed a pro se petition for a state writ of habeas corpus in
the Supreme Court of Virginia on June 13, 2017, raising the
1. The prosecution obtained his conviction through the
perpetration of fraud upon the court by knowingly eliciting
false testimony from his brother, Melvin White.
2. He received ineffective assistance of counsel because his
attorney failed to:
a. Conduct a pretrial investigation;
b. Seek the suppression of evidence obtained through a search
that violated the Fourth Amendment;
c. Move to suppress an unidentified statement made during
d. Investigate Melvin White's criminal background:
e. Move to suppress an unidentified statement made to law
enforcement by an informant.
3. The evidence was insufficient to support his conviction of
conspiracy to distribute a Schedule I or II controlled
4. He did not reside at 552 Madison Street, no drugs were
found on his person when the search warrant was executed at
that location, and his search and seizure at that location