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White v. Clarke

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

October 26, 2018

Laquan Christian White, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

         Laquan 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.

         I. Background

         On 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 later.
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 telephone number.
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 personal use.
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. B.[1] A 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.

         White filed a pro se petition for a state writ of habeas corpus in the Supreme Court of Virginia on June 13, 2017, raising the following claims:

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 interrogation;
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 substance.
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 ...

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