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Henderson v. Ray

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

March 25, 2019

LAVAR HENDERSON, Petitioner,
v.
TRACY RAY, Warden, Sussex II Slate Prison, Respondent.

          MEMORANDUM OPINION

          M. Hannah Lauck, United States District Judge.

         Petitioner Lavar Henderson, a Virginia inmate, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "§ 2254 Petition").[1] (ECF No. 1.) Tracy Ray. Warden of the Sussex II State Prison, filed a Motion to Dismiss (the "Motion to Dismiss"), (ECF No. 5) and Rule 5 Answer, (ECF No. 6), and Henderson responded, (ECF No. 8.) Accordingly, the matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion to Dismiss.

         I. Factual and Procedural Background

         A. Factual Background

         The Virginia Court of Appeals summarized the facts underlying the judgment that Henderson now challenges:

[O]n July 19, 2013, Detective Lindsey Wallace and Sergeant Michael Alston executed a search warrant at a house rented by appellant. Wallace found appellant in a bedroom located to the right as they entered the house. Other adults were in the house, including Mickel Fletcher, who was in a bedroom next to the kitchen.
Wallace asked appellant "if there was anything illegal in the house that [she] needed to know about," and appellant replied, "No." Outside of appellant's presence, Sergeant Alston told Wallace that he found heroin in the kitchen. Appellant responded, "What you found is all that's here." When Wallace pressed appellant further, he told her that "there was heroin in the kitchen," that it belonged to Fletcher, and that he saw Fletcher put it in the kitchen.
Further, appellant told Wallace that he drove to Philadelphia the day before, July 18, 2013, to pick up Fletcher and bring him to Richmond. Appellant said that, as they drove to Virginia, Fletcher asked appellant if he knew anything about "train," meaning heroin. Appellant told Fletcher he knew people in Richmond that Fletcher could sell heroin to once they returned. Appellant told Fletcher that he "could put [Fletcher] in contact with those people for the purpose of selling heroin." Appellant also told Wallace that he knew there was heroin in the car while they were driving "somewhere in Delaware [or] Maryland, prior to entering Virginia." Appellant told her he had sold cocaine or "powder" in the past, but that he is not a "large drug dealer."
The total weight of the heroin recovered from the kitchen was 55.8 grams. An expert witness in the street-level distribution of narcotics testified that the value of the recovered heroin was between $5, 000 and $6, 000. According to the expert, the quantity was inconsistent with personal use based on the quantity of heroin, its value, baggies found in the kitchen, and the fact that appellant never made a statement that the heroin was for personal use.
At trial, appellant offered a different account. He testified that he did not retrieve Fletcher from Philadelphia on July 18, 2013. He stated he was not aware of anyone bringing heroin into his residence in the relevant time frame, and he did not know whether or not Fletcher sold heroin. Appellant also testified he told Wallace he was not aware of the presence of anything illegal in the residence and that that was the extent of their conversation.

(Henderson v. Commonwealth, No. 1225-14-2. at 1-2, (Va. Cir. Ct. Apr. 22, 2015), ECF No. 1-5.)

         B. Procedural History

         On November 4, 2013, a grand jury indicted Henderson for transporting or distributing one ounce or more of a controlled substance and unlawfully possessing with the intent to distribute a controlled substance after having been convicted of a like offense on a prior occasion. (Indictments 1-2, ECF No. 1-1.) Henderson pleaded not guilty to the drug charges and proceeded to a bench trial. The Circuit Court for the City of Richmond (the "Richmond Circuit Court") convicted Henderson on both counts. (Trial Tr. Jan. 30, 2014 127-28, ECF No. 1-2.) On June 20, 2014, the Richmond Circuit Court sentenced Henderson to five years imprisonment for each offense.[2] (Sent. Order 1, ECF No. 1-3.) 1. Henderson's Direct Appeals Henderson appealed his convictions to the Court of Appeals of Virginia (the "Court of Appeals") arguing that the evidence at trial did not sufficiently support his convictions because the Commonwealth failed to prove that he possessed one ounce or more of heroin when he entered Virginia on July 18, 2013; or that he personally intended to distribute it. (Pet. Appeal 3, ECF No. 1-4.) On April 22, 2015, the Court of Appeals, finding the evidence sufficient for each count, affirmed Henderson's conviction. (Henderson v. Commonwealth, No. 1225-14-2 (Va. Cir. Ct. Apr. 22, 2015), ECF No. 1-5.) The Supreme Court of Virginia denied in an unpublished order Henderson's appeal of the Court of Appeals' affirmance. (Henderson v. Commonwealth, No. 150792 (Va. Nov. 9, 2015), ECF No. 1-6.)

         2. Henderson's State Habeas Petition

         On November 1, 2016, Henderson, acting pro se, filed a petition for a writ of habeas corpus pursuant to Virginia Code § 8.01-654[3] (the "State Habeas Petition") in the Richmond Circuit Court (the "State Habeas Court"). In the State Habeas Petition, Henderson asserted that his trial counsel provided ineffective assistance because she did not move to suppress certain statements he made, and that appellate counsel failed to use DNA evidence to support the argument that Henderson did not possess the drugs. (State Habeas Pet. 8, ECF No. 1-7.) Henderson argued the "totality of evidence, without the consideration of the statements, which should have been suppressed, show that there is no sufficient evidence to convict." (State Habeas Pet. 10, ECF No. 1-7.)

         The Commonwealth moved to dismiss the State Habeas Petition. The Commonwealth argued first that Henderson's ineffective assistance of trial counsel claim regarding his counsel's decision not to file a motion to suppress lacked merit. (Mot. Dismiss 5, ECF No. 1-8.) The Commonwealth noted that the "record, including the trial transcript, demonstrates [that] at 8:07 a.m. on July 19, 2013, 'before [they] began a discussion of anything,' Detective Wallace read Petitioner his rights under Miranda v. Arizona, 384 U.S. 436 (1966)." (Mot. to Dismiss 5 (first brackets added; second brackets in original).) The Commonwealth asserted that the record further showed Henderson told the detective that he understood his rights and "admitted to police that he was aware there was heroin in his house, and that he knowingly transported it into the Commonwealth from out-of-state for the purpose of facilitating its sale." (Mot. Dismiss 5.)

         The Commonwealth similarly argued that Henderson's ineffective assistance of appellate counsel claim lacked merit when Henderson faulted counsel "for not arguing the DNA evidence on appeal." (Mot. Dismiss 6.) The Commonwealth averred that the absence of Henderson's DNA from the heroin did not establish his innocence, particularly because the Commonwealth obtained Henderson's conviction based on a constructive possession theory. (Mot. Dismiss 7.) The Commonwealth also noted that, "at the appellate stage, the evidence is viewed in the light most favorable to the Commonwealth as the prevailing party below." (Mot. Dismiss 7.) Thus, according to the Commonwealth, appellate counsel did not act unreasonably given the standard of review. (Mot. Dismiss 6-7.)

         The State Habeas Court denied Henderson's request for an evidentiary hearing and denied his State Habeas Petition. (Henderson v. Herring, No. CL16-4886, slip op. at 1; ECF No. 1-10.) Henderson appealed, and on November 16, 2017, the Supreme Court of Virginia refused Henderson's petition for appeal after finding no reversible error. (Denial 1, ECF No. 1-11.)

         On February 14, 2018, Henderson filed the § 2254 Petition in this Court. Henderson argues that no rational trier of fact could have found that he committed the essential elements of each crime beyond a reasonable doubt, and that the state court rendered decisions based on an unreasonable application of federal law or contrary to federal law. Henderson asks the Court to grant his petition, "set[] aside his convictions and sentences," or hold "an evidentiary hearing at which he can present evidence to further support his claims."[4] (§ 2254 Pet. 25.)

         II. Applicable Constraints Upon Habeas Review

         To obtain federal habeas relief, at a minimum, a petitioner must demonstrate that she or he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") further circumscribes this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker,529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a ...


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