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Green v. Warden Fram

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

July 24, 2019

AARON VINCENT GREEN, Petitioner,
v.
WARDEN FRAM, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge

         Aaron Vincent Green, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his 2013 convictions in the Circuit Court of the County of Arlington, Virginia ("Circuit Court"). Green argues that he is entitled to relief on the following grounds:[1]

Claim One: "Insufficient counseling: Attorney Nader Hasan was insufficient when he failed to object to [the] erroneous entry of [Green's] prior record [at trial]." (§ 2254 Pet. 5.)
Claim Two: "Chain of custody with evidence [and] tampering[:]" "Officer Mason testified [that] he retrieved [the] item from Officer Kernieky, then placed [the] item inside his pocket, where it remained [for] the next few hours[, ]" and then "[w]hile alone in his cruiser, he opened, and tested [the] item, changing the composition of content, while never securing [the] item inside an evidence bag." (Id. at 6.)
Claim Three: "[The Circuit] Court failed to provide [Green] with a verbatim copy of [the] trial transcript[, ]" and Green "could not accurately perfect [his] appeal with [an] incomplete transcript." (Id. at 8.)

         Respondent moves to dismiss on the ground that Green's claims are procedurally defaulted and barred from review here. Despite the provision of notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Green has not responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 5) will be GRANTED because Green's claims are procedurally defaulted.

         I. PROCEDURAL HISTORY

         After a jury trial, Green was convicted of one count of possession with intent to sell cocaine, third offense, and one count of possession with intent to sell cocaine within 1, 000 feet of school property, second offense. Commonwealth v. Green, Nos. CR12-1245, CR12-1246 (Va. Cir. Ct. May 24, 2013). On October 18, 2013, the Circuit Court sentenced Green to eleven years of incarceration. (ECF No. 7-1, at 1-4.) Green, proceeding with counsel, filed a post-trial motion, requesting a mistrial or, in the alternative to set aside the verdict, raising the following grounds:

(I) the trial transcript [was] allegedly incomplete; (II) Mr. Green was not present during sidebar conferences; (III) the Commonwealth mistakenly offered Commonwealth trial exhibit 9, then withdrew it; (IV) Mr. Green's prior record showing a pre-indictment conviction under Va. Code Ann. § 18.2-248(C) was introduced to support a conviction for a second or subsequent violation of Va. Code, Ann. Sec. 18.2-248(C), as alleged in the underlying indictment; (V) allegedly, there was improper communication between the juror and a deputy sheriff; and (VI) the evidence of possession of cocaine and possession with the intent to distribute cocaine was not sufficient to exclude all reasonable hypotheses of innocence.

(See ECF No. 7-2, at 1-2.) On May 6, 2014, the Circuit Court denied Green's post-trial motion. (Id. at 9, 10.)

         Subsequently, Green, proceeding with counsel, filed a petition for appeal raising the following assignments of error:

1. The trial court erred in finding the evidence sufficient to prove intent to distribute and refusing to set aside the verdict, when the expert's testimony was too inconsistent to establish the meaning of the quantity allegedly possessed and the arresting officer testified that there was no probable cause to search [Green's] house for evidence of distribution.
2. The trial court erred in finding the evidence sufficient to prove possession and refusing to set aside the verdict when the testimony of the arresting officer was inconsistent and not credible.
3. The trial court erred in denying Mr. Green's motion for a mistrial or to set aside the verdict when the trial had been fundamentally unfair in violation of Mr. Green's right to due process and an impartial jury under the Sixth Amendment to the United States Constitution and Article I, Section 8 of the Virginia Constitution, in that the jury was permitted to consider Mr. Green's prior criminal record in determining his guilt of the possession and possession with intent to distribute alleged in this case.
4. The trial court erred in denying Mr. Green's motion for a mistrial or to set aside the verdict when the trial had been fundamentally unfair in violation of Mr. Green's right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 11 of the Virginia Constitution in that some but not all of Mr. Green's prior record with respect to possession of drugs was admitted into evidence, with the result that evidence of prior convictions of possession with intent to distribute was admitted and exculpatory evidence of a prior conviction for simple possession was omitted.
5. The trial court erred in admitting evidence of unadjudicated prior bad acts, in violation of longstanding Virginia case law and of Mr. Green's right to due process under the Fifth and Fourteenth Amendments to the United States Constitution ...

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