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Turner v. Clarke

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

November 13, 2018

Brian J. Turner, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Brian 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.

         I. Background

         Following 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.

         A judge 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.[1]
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 circuit court.

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.

         On March 22, 2017, Turner filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the following claims:

A. Trial counsel provided ineffective assistance for numerous reasons.[2]
B. His Fourth Amendment rights were violated because the affidavit submitted in support of the search warrant was deficient.
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 ...

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