Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rives v. Clarke

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

March 21, 2019

DEREK RIVES, #1443680, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          OPINION AND ORDER

          Lawrence R. Leonard United States Magistrate Judge

         This matter is before the Court on Petitioner Derek Rives' ("Petitioner")pro se Petition for a Writ of Habeas Corpus ("the Petition") filed pursuant to 28 U.S.C. § 2254, ECF No. 1, and Respondent Harold W. Clarke's ("Respondent") Motion to Dismiss, ECF No. 8. The parties consented to magistrate judge jurisdiction on March 20, 2018, ECF No. 7, the case was referred to the undersigned United States Magistrate Judge pursuant to an Order of the United States District Judge, ECF No. 13, and the case was reassigned. For the following reasons, Respondent's Motion to Dismiss, ECF No. 8, is GRANTED, and the Petition, ECF No. 1, is DENIED and DISMISSED WITH PREJUDICE.

         I. PROCEDURAL BACKGROUND

         Petitioner is currently serving a nine-year sentence pursuant to a Final Order of the Circuit Court for the City of Colonial Heights ("Trial Court") entered on July 24, 2014. ECF No. 10, attach. 1. On January 21, 2014, a jury found Petitioner guilty of one count of possession of a Scheduled I or II controlled substance, in violation of Va. Code § 18.2-250, and one count of felony eluding the police, in violation of Va. Code § 46.2-817(B). Id., attach. 3 at 2. The jury fixed Petitioner's sentence at four years' imprisonment for felony eluding and five years' imprisonment for possession of a controlled substance. Id., attach. 1 at 1. June 23, 2014, the Trial Court held a sentencing hearing and sentenced Petitioner to four years' imprisonment for felony eluding and five years' imprisonment for possession of a controlled substance. Id. The Sentencing Order was entered on July 24, 2014. Id. Petitioner was represented at trial and on appeal by Attorney Michael Lee ("Defense Counsel"). ECF No. 1 at 12. According to the factual findings of the Court of Appeals of Virginia, Petitioner's convictions arise out of the following factual background:

[O]n December 30, 2012, Officer Gregory Thinnes ("Thinnes") of the Colonial Height[s] Police Department was sitting at a stoplight in a marked patrol car. Thinnes was facing west on Highland Avenue when a vehicle, driven by a person Thinnes later identified as [Petitioner], was traveling toward the intersection before it turned "right past" Thinnes, going east on Highland Avenue. As the vehicle passed Thinnes, the driver was "a matter of feet" away and had a "shocked" look on his face. As the vehicle continued past Thinnes' patrol car, the driver was looking back "over his shoulder" toward Thinnes.
Consequently, Thinnes turned right at the intersection and then made another right turn when he saw the vehicle and driver again, about "a minute and a half later, from a distance of "two car lengths." Thinnes eventually maneuvered his patrol car behind the vehicle and "ran" the license plate. Then, based on information obtained from "dispatch," Thinnes activated his blue lights to initiate a traffic stop. Initially, the vehicle moved to the shoulder and came to an "abrupt" stop. The vehicle then got onto Interstate 95 northbound. Thinnes continued to pursue the vehicle, reaching speeds of over 100 miles per hour. Thinnes testified that he observed "large, clear plastic bags" come from the passenger side of the vehicle just past an overpass, which broke apart when they hit the shoulder. The vehicle exited Interstate 95 and entered into an apartment complex. When Thinnes reached the parked vehicle, it was empty with its doors open. Neither the driver nor passenger was apprehended.
Subsequent investigation led Thinnes to a picture of [Petitioner], who Thinnes identified as the driver of the vehicle. At [Petitioner's] trial, Thinnes testified that there was "no doubt" in his mind that [Petitioner] was the driver of the vehicle. On cross-examination, Thinnes testified that he had not seen [Petitioner] before December 30, 2012, and that he had only seen him for "a total of about [ten] seconds" during the pursuit. Tracy White ("White"), testifying for [Petitioner], asserted that she and another person had picked up [Petitioner] and "his young lady" the day after Christmas in 2012 and that he had stayed at her house in Richmond until after New Year's Day. At the close of the evidence, the jury found [Petitioner] guilty of felony eluding, in violation of Code § 46.2-817, and possession of a schedule I or II controlled substance, in violation of Code § 18.2-250.

ECF No. 10, attach. 4 at 2-3.

         Because the procedural background of this case is integral to the Court's disposition thereof, the undersigned will now articulate a chronology of Petitioner's appellate efforts and endeavors to obtain state and federal habeas relief.

         Petitioner appealed his conviction to the Court of Appeals of Virginia on August 15, 2014. Id., attach. 4 at 1. On appeal, Petitioner argued only that:

The jury could not have found that the Commonwealth proved beyond a reasonable doubt that [Petitioner] was the person who was driving the vehicle on December 30, 2012 that fled from police and threw drugs from the passenger window where the only evidence was the officer's identification, the driver avoided apprehension at the scene, and a witness testified that [Petitioner] was at her house in Richmond on December 30, 2012.

Id. attach. 4 at 2. The Court of Appeals denied his petition for appeal on March 18, 2015. Id., attach. 4. Petitioner then appealed his conviction to the Supreme Court of Virginia, which refused his petition for appeal on January 19, 2016. Id., attach. 5.

         On December 27, 2016, Petitioner filed a petition for a writ of habeas corpus with the Supreme Court of Virginia, alleging the following grounds:

a. Trial counsel was ineffective for failing to file a Brady motion to challenge the sufficiency of the evidence that led to Petitioner's conviction;
b. Petitioner's Due Process rights under the Fourteenth Amendment were violated when the trial court allowed the evidence to be presented at trial without him being allowed to challenge the sufficiency of the evidence;
c. Petitioner's Due Process rights were violated when he was convicted by an all-white jury;
d. Trial Counsel was ineffective when he failed to challenge the racial makeup of the jury panel;
e. Petitioner's Sixth Amendment right to a fair trial was violated when he was convicted by an all-white jury;
f. Petitioner's Sixth Amendment rights were violated when he was denied the right to confront the witnesses against him, noting that his witnesses could have contradicted the Commonwealth's evidence;
g. Trial Counsel was ineffective for failing to allow Petitioner's witnesses to testify as to their ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.