United States District Court, E.D. Virginia, Alexandria Division
Jerry L. Craig, Petitioner,
Harold W. Clarke, Respondent.
Anthony J. Trenga United States Dispel Judge
L. Craig, 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 convictions
entered in the Circuit Court of the City of Portsmouth. Nos.
CR12-2151-01 through -05. Before the Court is the
respondent's Motion to Dismiss the petition, to which
Craig has filed his opposition. [Dkt. No. 29, 32] For the
following reasons, the Motion to Dismiss will be granted.
9, 2013, Craig was tried to a jury and found guilty of felony
eluding the police, felony driving after having been declared
an habitual offender, driving on a revoked license with
endangerment, DUI second offense within five years, and
unreasonable refusal of a blood test, second offense. In its
Order adjudicating Craig's subsequent petition for state
habeas corpus relief, the Supreme Court of Virginia described
the facts underlying the convictions as follow:
Petitioner's convictions arise from a car chase through a
residential neighborhood which ended when petitioner crashed
the Chevrolet Tahoe he was driving. Virginia Marine Police
Officer Kevin Croft first noticed the Tahoe as it passed
Croft's marked police vehicle at over ninety miles per
hour on Western Freeway. Croft engaged his lights and siren,
but the Tahoe did not stop. Croft pursued the vehicle as it
exited the highway, drove through a red light, and wove
through the streets of a residential neighborhood at speeds
of between fifty and seventy miles per hour. During the
pursuit, Croft could not see who was driving, or how many
people were in the Tahoe. When the driver of the Tahoe
swerved to avoid hitting a van, he lost control and struck a
curb, causing the driver's side tire to come off. The
Tahoe spun and flipped. As it did, Croft saw petitioner being
tossed about. When the Tahoe settled, coming to rest on the
driver's side, petitioner's foot was outside the
driver's window and was pinned under the vehicle. Croft
did not see anyone else in or near the Tahoe, nor did he see
anyone exit the vehicle prior to the crash. Petitioner was
transported to the hospital after the crash. His blood
alcohol content level ("BAC") was .20.
Crais v. Clarke. R. No. 151375 (Va. Aug. 8, 2017),
slip op. at 1-2. On September 17, 2013, Craig was sentenced
in accordance with the jury's recommendation to serve
nine years and six months incarceration.
appealed the judgment of conviction to the Court of Appeals
of Virginia, raising the sole claim that the evidence was
insufficient to prove that he was the driver of the vehicle.
On March 13, 2014, the petition for appeal was denied.
Craig v. Commonwealth. R. No. 1850-13-1 (Va. Ct.
App. Mar. 13, 2014). The Supreme Court of Virginia
subsequently refused Craig's petition for appeal of that
decision. Craig v. Commonwealth. R. No. 140553 (Va.
Sept. 23, 2014).
September 10, 2015, Craig filed a petition for a state writ
of habeas corpus in the Supreme Court of Virginia, asserting
the same claims he makes in this federal proceeding. On July
14, 2016, the Court entered an order directing the circuit
court to conduct an evidentiary hearing on Craig's
allegation that he was denied effective assistance of counsel
when his lawyer failed to challenge the conviction for
unreasonable refusal to submit to a blood or breath test on
the ground that Craig had not been arrested for driving while
intoxicated. See Va. Code § 18.2- 268.3 (one element of
unreasonable refusal in Virginia is arrest). The circuit
court determined that Craig had not been arrested. On August
8, 2017, the Supreme Court of Virginia entered an Order
granting Craig's state habeas application in part and
vacating Craig's conviction for unreasonable refusal of a
blood or breath test, second offense. In all other respects
the petition was dismissed. Craig v. Clarke. R. No.
151375 (Va. Aug. 8, 2017).
then turned to the federal forum and timely filed the instant
application for relief pursuant to §2254 by placing it
into his institution's mailing system on November 27,
2017. [Dkt. No. 1 at 28] In it, he makes the following
A. He was denied effective assistance of counsel when his
attorney failed to review police and medical documents which
indicated he was not placed under physical restraint within
the time limit required by the implied consent statute, Code
§ 18.2-268.2. Counsel failed to make appropriate motions
based on that information.
B. He was denied effective assistance of counsel when his
attorney failed to review police and medical documents and
determine that the officer never approached Craig at the time
and place to which the officer testified, and the officer
never advised him of an arrest or of the implied consent law.
The records indicated that Craig was not under physical
restraint. They also showed that Officer Croft was not in the
Trauma Unit of the hospital. Counsel therefore should have
moved to dismiss the refusal charge.
C. Counsel were ineffective for failing to object to, move to
suppress, or move to dismiss the charges based on the faulty
or falsified search warrant. Croft failed to follow proper
procedures in obtaining the blood sample that had already
been drawn by hospital personnel.
D. Counsel were ineffective for failing to object to the
admission of the certificate of analysis and the hospital
blood test results when Craig had not been placed under
restraints or submitted to police authority. The blood that
was analyzed was tested for Craig as a patient.
E. Counsel were ineffective for failing to analyze DMV
records and contest the charge under Code § 46.2-391 for
being without evidentiary support. Craig never applied for a
restricted license or full privilege to drive under §
46.2-391 and it was not his second offense after becoming an
F. Trial counsel was ineffective for failing to object during
arraignment and at trial to the charge under Code §
46.2-391 for lacking evidentiary support.
G. When trial counsel objected to the driving record he
failed to point out that it did not contain any application
for a restricted license and to argue that Craig never had a
H. Counsel was ineffective for failing to object when the
prosecutor elicited false testimony from Officer Croft and
failed to subpoena the nurse to impeach Croft's testimony
that he was present in the trauma unit with Craig.
I. Counsel erred in failing to object to questions that
implied that Craig's pre-arrest silence was an admission
of guilt. Counsel should have continued to object when the
questions were asked of witnesses even though counsel's
objection during the prosecutor's opening statement was
J. Counsel failed to cross-examine Officer Croft thoroughly
regarding the identification of Craig as the driver of the
K. Counsel was ineffective when he failed to request an
instruction on the meaning of willful or wanton disregard of
a police signal, which are elements of the offense of eluding
the police, and when he failed to argue that willful
disregard is less severe than wanton disregard.
L. Appellate counsel was ineffective for failing to argue the
preserved issue that the evidence was insufficient to support
the conviction of eluding the police.
M. Appellate counsel was ineffective for failing to argue
that the evidence was insufficient to sustain the conviction
of driving on a revoked license with endangerment.
N. Appellate counsel was ineffective for failing to challenge
the prosecutor's statements during his opening and
case-in-chief that Craig had not told anyone he was not the
driver of the Tahoe.
O. The prosecutor's statements during his opening and
case-in-chief that Craig had not told anyone he was not the
driver of the Tahoe violated Craig's right to pre-arrest
silence by implying to the jury that Craig had some duty to
surrender that right to authorities. After those comments the
jury asked three questions.
P. The prosecutor knowingly elicited false testimony from the
investigating officer at trial that he had advised Craig of
the implied consent law at a time other than that indicated
on the signed certificate of refusal.
Q. The trial judge erred when he overruled the defense
objection to comments on Craig's pre-arrest silence.
R. The trial judge erred when he overruled a defense motion
to strike the charge of driving on a revoked ...