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Craig v. Clarke

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

January 24, 2019

Jerry L. Craig, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Anthony J. Trenga United States Dispel Judge

         Jerry 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.

         I. Background

         On July 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:[1]

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.

         Craig 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).

         On 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).

         Craig 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 claims:

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 habitual offender.
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 restricted license.
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 overruled.
J. Counsel failed to cross-examine Officer Croft thoroughly regarding the identification of Craig as the driver of the Tahoe.
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 ...

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