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Blakes v. Clarke

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

July 31, 2019

Andre Baseem Blakes, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Anthony J. Trenga United States District Judge.

         Andre Baseem Blakes, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his trial and conviction were plagued by reversible error and that he was denied effective assistance of counsel. On November 8, 2018, respondent filed a Motion to Dismiss and Rule 5 Answer, supported by a legal brief and documentary exhibits. Dkt. Nos. 6-8. Petitioner later filed a traverse. Dkt. No. 15. For the reasons outlined below, respondent's Motion to Dismiss will be granted, and the underlying petition for writ of habeas corpus will be dismissed.

         I. Background

         On June 25, 2015, in the Circuit Court for the City of Norfolk, a jury found petitioner guilty of possession of heroin with intent to distribute, third or subsequent offense, and trespassing.[1] Nos. CR13001598-03 and -04; Resp. Ex. 1. On September 17, 2015, the Circuit Court imposed upon petitioner a sentence of fifteen years, twelve months incarceration. Nos. CR13001598-03 and -04; Resp. Ex. 2.

         Petitioner appealed his conviction of possession with intent to distribute to the Court of Appeals of Virginia, arguing that the evidence presented at trial was insufficient to establish that he intended to distribute narcotics. Record No. 1604-15-1. The Court of Appeals denied petitioner's appeal through a per curiam order which entered March 26, 2016. Id. Petitioner then appealed to the Supreme Court of Virginia, which, on November 28, 2016, also refused the appeal. Record. No. 160491.

         After unsuccessfully pursuing direct appeals, petitioner filed in the Supreme Court of Virginia a timely petition for writ of habeas corpus, arguing the following:

         TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO:

a) Make timely and necessary objections during suppression hearing and during trial;
b) Challenge admissibility of alleged statements attributed to petitioner by Investigator[] Dierks, as violative of Miranda or the propriety of relating such information to the jury;
c) Challenge or object to the Commonwealth Attorney, Ufkes, knowingly and intentionally misrepresenting documentary evidence and presenting perjured testimonial evidence to the jury;
d) Disallow Dierks from committing fraud upon the court;
e) Use documentary evidence presented by the Commonwealth to impeach testimony of Dierks;
f) Raise an adequate adversarial defense to test the case of the Commonwealth.

Record No. 170957. Respondent filed a motion to dismiss the state habeas petition, and, on February 20, 2018, the Supreme Court of Virginia granted that motion. Id. The state court held that claims A and B failed to satisfy the performance prong of Strickland v. Washington, 466 U.S. 668, 687 (1984), and that claims C, D, E, and F satisfied neither the performance nor prejudice prongs of the same test. Id. The Supreme Court of Virginia came to these conclusions without ordering an evidentiary hearing. Id.

         On August 27, 2018, petitioner timely executed the § 2254 petition currently under review. Dkt. No. 1. He raises the following claims:

I. The trial court erred in denying petitioner's motion to strike in that the evidence was insufficient to support a finding that petitioner possessed heroin recovered by officers during the encounter with petitioner on February 22, 2013 with the intent to distribute.
II. Petitioner contends that trial counsel's representation fell below an objective standard of reasonableness for the following reasons:
a) Failure to make timely and necessary objections during suppression hearing in regards to Dierks, whose testimony was vital to Commonwealth's attempt to establish intent, which is essential to obtaining a conviction of possession with intent to distribute heroin, not being subpoenaed to pre-trial suppression hearing, nor did he subpoena Dierks himself, and during trial in regards to testimony of Dierks and actions of Commonwealth's Attorney;
b) Failure to challenge admissibility of alleged statements attributed to petitioner by Dierks, as violative of Miranda or the propriety of relating such information to the jury;
c) Failure to challenge or object to Commonwealth's Attorney knowingly and intentionally misrepresenting documentary evidence and presenting perjured testimonial evidence to the jury;
d) Failure to raise an adequate adversarial defense to subject the Commonwealth's case to meaningful adversarial testing, to hold Commonwealth to it's [sic] heavy burden of proof beyond a reasonable doubt the essential elements necessary to support a conviction of possession with intent to distribute heroin under Virginia Law.

Id.

         II. Standard of Review

         To obtain federal habeas relief, a state prisoner must demonstrate that he or she 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") limits a federal court's authority to grant habeas relief. Pursuant to AEDPA, when a state court has addressed the merits of a claim raised in a subsequent federal habeas corpus petition, the reviewing federal court may not grant the petition on that particular claim unless the state court's adjudication was (1) contrary to or an unreasonable application of clearly established federal law or (2) was based on an unreasonable determination of the facts presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2).[2] The question, then, "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

         The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based upon an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination is "contrary to" federal law if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. A federal court should grant relief under the "unreasonable application" clause if it finds that the state court "identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

         In determining whether a state court's decision was based on an unreasonable determination of the facts unearthed at its own proceeding, a federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts 'the presumption of correctness by clear and convincing evidence.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. 2254(e)(1)). "The Supreme Court has found state factual findings unreasonable under ยง 2254(d)(2) when the direction of the evidence, viewed cumulatively, was 'too powerful to conclude anything but [the petitioner's factual claim],' and when a state ...


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