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Hunt v. Booker

United States District Court, W.D. Virginia, Roanoke Division

March 28, 2019

DEREK DARRELL HUNT, Petitioner,
v.
BERNARD BOOKER, Respondent.

          Derek Darrell Hunt, Pro Se Petitioner; Victoria Johnson, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Respondent.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         In this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, a Virginia inmate proceeding pro se, contends that his confinement pursuant to a 2014 Judgment entered by a state court is unconstitutional. Upon review of the record, I conclude that the respondent's Motion to Dismiss must be granted, because the petition is untimely filed.

         I.

         A grand jury of the Circuit Court for Campbell County returned Indictments charging Derek Derrell Hunt with five counts of distribution of cocaine, third or subsequent offense, in violation of Virginia Code Ann. § 18.2-248. Hunt pleaded not guilty and was tried before a jury in June of 2014. During later habeas corpus proceedings, the trial court summarized the trial evidence against Hunt:

On June 11, June 12, June 13, June 15, and June 21, 2012, Hunt sold crack cocaine to a confidential informant who was working with the Campbell County Sheriff's Department. On each occasion, the transactions were audio and video recorded and, in four of the recordings, Hunt's face is visible. The distinctive tattoos on Hunt's arm are also visible in the videos. After the June 21, 2012 drug transaction, Investigator Dwayne Wade of the Campbell County Sheriff's Department Narcotics Division followed the car in which Hunt was traveling and observed Hunt in the car.
Investigator Wade observed all of the transactions and monitored the controlled buy operations. Investigator Wade testified at trial that the confidential informant was financially compensated and that, in his experience as a law enforcement officer, it was common for drug dealers to sell their clients less than the agreed-upon quantity of drugs in order to increase their profits. Investigator Wade never told the confidential informant to target a particular person or gave the confidential informant a set number of drug transactions that he was required to complete. Both the confidential informant and his nephew knew Hunt, and the confidential informant identified Hunt as someone who would be likely to sell him drugs. At trial, the confidential informant stated he bought crack cocaine from Hunt on all five occasion[s] and denied tampering with or concealing any of the crack cocaine he bought from Hunt.
Investigator Joseph Shepherd of the Campbell County Sheriff's Office and Investigator Gary Penn of the Altavista Police Department were also involved in the controlled buy operation. Both testified at trial that they had not tampered with any evidence received from the confidential informant and that the confidential informant was searched before and after each transaction and was not concealing any contraband.
At trial, the jury viewed and listened to the recordings of each of the five drug transactions.

         Br. Supp. Mot. Dismiss Ex. 4, ECF No. 10-4 (paragraph numbers and record citations omitted). The jury convicted Hunt on all five counts and recommended an aggregate sentence of thirty years. On October 30, 2014, the court imposed that sentence, with no time suspended.

         Hunt appealed, alleging a claim that the evidence was insufficient “because the informant's testimony was inherently incredible, ” and a claim that the sentence was excessive in violation of the Eighth Amendment. Id. at Ex. 2, ECF No. 10-2. One reviewing judge refused Hunt's Petition for Appeal, and in October of 2015, a three-judge panel of the Court of Appeals of Virginia denied relief. Hunt appealed. In an Order entered June 15, 2016, the Supreme Court of Virginia refused assignment of error no. 2 of Hunt's appeal and dismissed it as procedurally defaulted under Supreme Court Rule 5:17(c)(1)(iii). Id. at Ex. 3, ECF No. 10-3.

         During Hunt's appeal proceedings, on November 19, 2015, he filed a Motion to Correct Unlawful Sentence in the Circuit Court for Campbell County. Id. at Ex. 2, at 4, ECF No. 10-2. The circuit court dismissed the motion in February of 2016 for lack of jurisdiction, because it was not timely filed. See Va. Sup. Ct. R. 1:1 (“All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.”). Hunt appealed this jurisdictional dismissal to the Court of Appeals of Virginia, which held that it did not have jurisdiction over the appeal and dismissed it by Order dated October 25, 2016.

         Hunt then filed a timely Petition for a Writ of Habeas Corpus in the Circuit Court for Campbell County on or about October 27, 2016. Among other claims, Hunt alleged that his “right to due process was violated when the Commonwealth failed to disclose material impeachment evidence regarding the ongoing criminal investigation of the Alta Vista Police Department.” Id. at Ex. 4, ECF No. 10-4. He based this claim on media reports from July of 2016, copies of which he attached to his state petition. The circuit court dismissed the petition by Order entered March 27, 2017, without conducting an evidentiary hearing.

         Hunt appealed the circuit court dismissal. By Order dated October 17, 2017, the Supreme Court of Virginia dismissed Hunt's Petition for Appeal because he failed to assign error as required by its Rule 5:17(c)(1)(i). Id. at Ex. 5, ECF 10-5. Hunt moved for reconsideration and asked the Court to accept his petition because of his pro se status and lack of access to legal materials. He also submitted a two-page list of Assignments of Error and pointed out that his petition included clearly ...


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