United States District Court, E.D. Virginia, Alexandria Division
Brian J. Turner, Petitioner,
Harold W. Clarke, Respondent.
M. Brinkema United States District Judge
J. Turner, 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 in the Circuit Court of the City
of Alexandria. Before the Court is respondent's Motion to
Dismiss the petition [Dkt. No. 7], to which petitioner has
filed no response. For the following reasons, the Motion to
Dismiss will be granted.
a bench trial. Turner was convicted on June 27, 2014, of one
count of possession of cocaine with intent to distribute,
third or subsequent offense, and one count of possession of
more than 250 grams of a substance containing cocaine base
with the intent to distribute. He received an active sentence
of eighteen (18) years incarceration. Resp. Ex. 1.
of the Virginia Court of Appeals reviewed Turner's
petition for a direct appeal and granted the petition with
respect to three assignments of error:
1. The trial court erred in finding that the reattachment of
a GPS tracker to Turner's vehicle was not a second
search, that the warrant permitted the police to remove and
reattach the GPS tracer, and that extension of the search may
be based on proof not amounting to probable cause.
2. The trial court erred in admitting letters in violation of
the complete writing and best evidence rules,
3. The trial court erred in finding sufficient evidence to
convict Turner of possessing narcotics found in a safe.
Turner v. Commonwealth. R. No. 1309-14-4 (Va. Ct.
App. Feb 20, 2015), slip op. at 1. Turner's convictions
were affirmed in a published opinion entered on October 27,
2015, where the court summarized its holdings as follow:
In summary, we hold that the reattachment of the GPS tracking
device during the period authorized by the warrant was
permissible under both Code § 19.2-56.2 and the Fourth
Amendment. Moreover, we hold that because the extension of
the warrant pursuant to Code § 19.2-56.2(E) was
supported by both probable cause that Turner continued to be
engaged in criminal activity and good cause to extend that
time period of the warrant for the tracking device, the
circuit court did not err in declining to suppress the
evidence obtained as a result of the GPS tracking device. We
also hold that the circuit court did not err in admitting
photographs of mail addressed to Turner into evidence or
finding that there was sufficient evidence to support
Turner's conviction for possession of the narcotics found
in the safe. Accordingly, we affirm the judgment of the
Turner v. Commonwealth. 65 Va.App. 312, 777 S.E.2d
569 (2015). The court denied Turner's subsequent petition
for rehearing on November 30, 2015. Resp. Ex. 3. The Supreme
Court of Virginia refused Turner's petition for appeal on
October 20, 2016, Turner v. Commonwealth. R. No.
160017 (Va. Oct. 20, 2016), and denied his petition for
rehearing on February 3, 2017. Resp. Ex. 4.
March 22, 2017, Turner filed a petition for a state writ of
habeas corpus in the Supreme Court of Virginia, raising the
A. Trial counsel provided ineffective assistance for numerous
B. His Fourth Amendment rights were violated because the
affidavit submitted in support of the search warrant was
C. The reattachment of the GPS tracking device to his vehicle
violated the Fourth Amendment.
D. The search of a closed safe in his home during execution
of the search warrant violated ...