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Lugaro v. Clarke

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

September 4, 2019

JESSE LUGARO, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Jesse Lugaro, a Virginia inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 petition (hereinafter ''§ 2254 Petition," ECF No. 1) challenging his 2014 convictions in the Circuit Court of the City of Virginia Beach, Virginia (hereinafter "Circuit Court") of three counts of robbery of a residence and three counts of use of a firearm in the commission of a felony. Lugaro argues that he is entitled to relief on the following grounds:[1]

Claim One: ''[Lugaro] was deprived of the 6th Amendment's right to the effective representation of counsel when court-appointed counsel neglected to perform any pre-trial investigations, which resulted in [counsel's] failure to identify, develop, or utilize available exculpatory materials." (Mem. Supp. § 2254 Pet. 3, ECF No. 2.)
Claim Two: ''[Lugaro] suffered a contravention of the 6th Amendment's right to the effective representation of counsel when court-appointed counsel's deficient pre-trial investigation resulted in [counsel's] failure to impeach the credibility of witness testimony, inherently depriving [Lugaro] the right to confrontation through cross-examination." (Id.)
Claim Three: ''[Lugaro] incurred a deprivation of the 6th Amendment's right to effective representation of counsel when court-appointed counsel's perfunctory pre-trial preparation resulted in a breakdown in the adversarial testing process and ultimately denied [Lugaro] a fair trial." (Id.)
Claim Four: ''[Lugaro' s] 5th and 14th Amendment right[s] to the due process and equal protection of the laws were violated when [he] was arbitrarily found guilty for crimes without the essential elements comprising those offenses being proven beyond a reasonable doubt." (Id.)

         Respondent has filed a Motion to Dismiss, arguing that Lugaro's claims lack merit. (ECF No. 9.) Lugaro has responded. (ECF No. 14.) For the reasons set forth below, the Motion to Dismiss (ECF No. 9) will be granted.

         I. FACTUAL AND PROCEDURAL HISTORY

         After a bench trial, Lugaro was convicted of three counts of robbery of a residence and three counts of use of a firearm in the commission of a felony. (Mar. 19, 2014 Tr. 9); Commonwealth v. Lugaro, No. CR13-2817, at 1-2 (Va. Cir. Ct. Sept. 12, 2014). The Circuit Court sentenced Lugaro to an active sentence of twenty-seven years of incarceration. Commonwealth v. Lugaro, No. CR13-2817, at 2 (Va. Cir. Ct. Sept. 12, 2014).

         Lugaro, proceeding with counsel, appealed; however, Lugaro's appeal was denied because ''[t]he record on appeal [did] not contain a transcript or written statement of facts for the March 19, 2014 trial." Lugaro v. Commonwealth, No. 1736-14-1 (Va. Ct. App. Apr. 15, 2015.) Thereafter, Lugaro moved for leave to pursue a delayed appeal in the Court of Appeals of Virginia. Motion for Delayed Appeal 1, Lugaro v. Commonwealth, No. 1759-15-1 (Va. Ct. App. filed Sept. 18, 2015). On October 22, 2015, the Court of Appeals of Virginia granted Lugaro's motion, and authorized him to file a replacement notice of appeal. Lugaro v. Commonwealth, No. 1759-15-1, at 1 (Va. Ct. App. Oct. 22, 2015).

         In his replacement notice of appeal, Lugaro, proceeding with counsel, raised the following assignment of error: "The trial court erred in finding sufficient evidence of robbery and use of a firearm where appellant did not aid in the criminal conduct or share in the criminal intent of principal." Petition for Appeal 2, Lugaro v. Commonwealth, No. 1759-15-1 (Va. Ct. App. filed Mar. 7, 2016) . On May 18, 2016, the Court of Appeals of Virginia denied the petition for appeal. Lugaro v. Commonwealth, No. 1759-15-1, at 1 (Va. Ct. App. May 18, 2016). A three-judge panel also denied the petition for appeal. Lugaro v. Commonwealth, No. 1759-15-1, at 1 (Va. Ct. App. July 26, 2016). On April 11, 2017, the Supreme Court of Virginia refused the petition for appeal. Lugaro v. Commonwealth, No. 161236, at 1 (Va. Apr. 11, 2017).

         On March 12, 2018, Lugaro filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. Petition for Writ of Habeas Corpus 1, Lugaro v. Commonwealth, No. 180352 (Va. filed Mar. 12, 2018). In that petition, Lugaro raised the same claims that he raises in the instant § 2254 Petition. See generally Id. On August 29, 2018, the Supreme Court of Virginia dismissed the petition. Lugaro v. Commonwealth, No. 180352, at 8 (Va. Aug. 28, 2018). Thereafter, Lugaro filed the instant § 2254 Petition. ('§ 2254 Pet. 14.)

         II. APPLICABLE CONSTRAINTS UPON HABEAS REVIEW

         In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that 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 (''AEDPA") of 1996 further circumscribed 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 federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question ''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)).

         III. INEFFECTIVE ASSISTANCE OF COUNSEL

         A. Applicable Law

         To demonstrate ineffective assistance of counsel, a convicted defendant must show first that counsel's representation was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the '' 'strong presumption' that counsel's strategy and tactics fall `within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 4 66 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         Respondent acknowledges that Lugaro raised his four claims in his state habeas petition before the Supreme Court of Virginia. (Br. Supp. Mot. Dismiss 2, ECF No. 11.) As discussed in detail below, the Court has reviewed the entirety of Lugaro's § 2254 Petition and attachments, and the state court record, and concludes that the Supreme Court of Virginia's determination that Lugaro's claims lack merit is not unreasonable.

         B. Claims One, Two, and Three

         In Claims One, Two, and Three, Lugaro presents claims of ineffective assistance based on his assertion that counsel failed to conduct an adequate pre-trial investigation. Specifically, in Claim One, Lugaro argues that counsel rendered ineffective assistance "when court-appointed counsel neglected to perform any pre-trial investigations, which resulted in [counsel's] failure to identify, develop, or utilize available exculpatory materials." (Mem. Supp. § 2254 Pet. 2.) Relatedly, in Claim Two, Lugaro argues that "court-appointed counsel's deficient pre-trial investigation resulted in [counsel's] failure to impeach the credibility of witness testimony, inherently depriving [Lugaro] the right to confrontation through cross-examination" (id.), and in Claim Three, Lugaro argues that counsel rendered ineffective assistance "when court-appointed counsel's perfunctory pre-trial preparation resulted in a breakdown in the adversarial testing process and ultimately denied [Lugaro] a fair trial." (Id.)

         The Supreme Court of Virginia appropriately addressed these claims together. In explaining and rejecting Claims One, Two, and Three here, the Supreme Court of Virginia found:

In portions of claims (1), (2), and (3), petitioner contends he was denied the effective assistance of counsel because trial counsel failed to investigate or interview Shannon Brown and, as a result, he was unable to effectively cross examine Brown or to impeach her credibility. Petitioner contends Brown's testimony and her two statements to the police were inconsistent with each other. In addition, petitioner alleges Brown never claimed the firearm used in the robberies belonged to petitioner, and appears to allege this information was exculpatory.
The Court holds these portions of claims (1), (2), and (3) satisfy neither the "performance" nor the "prejudice" prong of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). The record, including the trial transcript and petitioner's exhibits, including Brown's attorney's notes of his interview with Brown, demonstrates on November 16, 2012, Steven Skeems and Ryan Thomas were with Joel Powell and Donald Soutiere at 5576 Aurora Drive, a residence Powell and Soutiere shared with Paul Benner, who was not home. A week prior, Benner and his girlfriend had gotten into a fight with Shannon Brown and Destynee White at 5576 Aurora Drive. As a result of the fight, White broke her finger and Brown suffered a concussion. Brown and White were cousins and friends with Christopher Averette who introduced them to petitioner. On November 16, 2012, Brown and White were "hanging out" with Averette and petitioner at Averette's house. They were drinking and at least Brown, White, and Averette were using marijuana. Later, they "drove around" and happened to be near 5576 Aurora Drive. Averette and petitioner decided they wanted to scare the people who lived at Benner's house in retaliation for the fight in which White and Brown were injured. They drove to 557 6 Aurora Drive and White and Brown knocked on the door. Brown testified she and White went to the door first because she knew "they would let [her] in." Once inside, Brown apologized to Powell for the incident, while White sent a text message to Averette and petitioner letting them know how many people were inside.
Averette and petitioner knocked on the door a few minutes later and entered the house after Soutiere opened the door. Everyone was standing in the kitchen when Averette and petitioner asked about the incident the week before causing Powell, Thomas, Skeems, and Soutiere to laugh. Brown testified Averette and petitioner "started getting violent," and "took the gun out." At that point, Brown and White left the house, went to the car, and "were getting ready to leave [Averette and petitioner]." While Brown and White sat in the car, Averette and petitioner robbed Powell, Thomas, and Skeems. After the robbery, Averette and petitioner returned to the car and White drove away. Brown testified she saw Averette and petitioner wiping off cell phones and wallets and throwing the cell phones out of the car. She heard them talking about the gun belonging to petitioner, and complaining about the money they obtained. She further testified she "knew about the gun," because petitioner, "when he joined [Brown] and [White] and [Averette's] little group, he brought the gun with him and [they] didn't have any guns before then."
Brown testified they went to Averette's house where Averette and petitioner "scared [Brown and White] into turning [themselves] in" and telling police they met two men at a bar and took them to 557 6 Aurora Drive where the two men robbed everyone. Brown testified she told police this story when they first interviewed her. Two months before the trial, police interviewed Brown again. This time Brown told then she, White, Averette, and petitioner had been together drinking and using drugs on the day of the incident. Brown told them she and White took Averette and petitioner to 557 6 Aurora Drive but left and waited in the car because "she knew something bad was going to happen." Brown testified she was initially charged with multiple felonies in relation to her participation in the robberies but entered a plea agreement pursuant to which she pled guilty to accessory after the fact to robbery, a misdemeanor. One of the conditions of her plea agreement was that she "cooperate and testify truthfully in these matters."
On cross-examination, Brown acknowledged she initially faced "around 900 years" of incarceration but, after accepting the plea agreement and pleading guilty to the accessory charge, she was placed on probation and received no active jail time. Brown conceded that only after she accepted the plea agreement did she tell police Averette and petitioner robbed the men at 557 6 Aurora Drive.
Thus, counsel cross-examined Brown on her inconsistent statements and on the fact she was testifying against petitioner as part of a favorable plea agreement. Petitioner fails to proffer additional questions counsel could have asked Brown or to show how such questions would have impeached her credibility or otherwise undermined her testimony. In addition, contrary to petitioner's claims, Brown testified the gun used in the robberies belonged to petitioner. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged error, the result of the proceeding would have been different.
In additional portions of claims (1), (2), and (3), petitioner contends he was denied the effective assistance of counsel because trial counsel failed to investigate or interview Soutiere and, as a result, he was unable to effectively cross examine Soutiere or impeach his credibility.
The Court holds these portions of claims (1), (2), and (3) satisfy neither the "performance" or the "prejudice" prong of the two-part test enunciated in Strickland. Petitioner fails to identify any information counsel might have gleaned by investigating or interviewing Soutiere, or to articulate how such information could have been used to more effectively cross-examine Soutiere. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In additional portions of claims (1), (2), and (3), petitioner contends he was denied the effective assistance of counsel because trial counsel failed to investigate or interview Skeems and, as a result, he was unable to effectively cross-examine Skeems or to impeach his credibility. Petitioner contends Skeems, who testified at trial that Averette told petitioner to "find some rope" to tie up the victims and that petitioner unsuccessfully searched the house for rope, was interviewed by detectives and never mentioned petitioner attempted to find rope.
The Court holds these portions of claims (1), (2), and (3) fail to satisfy the "prejudice" prong of the two-part test enunciated in Strickland. The record, including the trial transcript and notes of the police interview with Skeems, demonstrates Skeems testified Averette and petitioner arrived at 5576 Aurora Drive about five minutes after Brown and White. Averette "kind of barged in" while petitioner remained on the porch until Soutiere invited him inside. Averette went into the kitchen and asked Soutiere where Benner was and who Benner's best friends were. Then, Averette produced a gun and ordered Skeems, Soutiere, Powell, and Thomas to the floor. Skeems testified petitioner was in the kitchen standing next to Averette when Averette pulled out the gun. Averette told petitioner to stay with Soutiere, then went to the living room and robbed Powell, Thomas, and Skeems. Averette returned to the kitchen and told petitioner to find "some rope," and said, "We're going to shoot them." Thomas also testified Averette "asked for something to tie - - to tie us up," Powell testified Averette told petitioner to "grab some rope" before he ordered the victims to the ground, and Soutiere testified either Averette or petitioner said, "Get some telephone wire or something so we can tie them up" and that petitioner warned him to stay on the ground and to do as Averette said. Skeems testified petitioner "made a loop around the back half of the house" then came back and told Averette he couldn't find anything." Skeems testified that, when Averette was in the kitchen, Thomas and Powell fled through the back door, after which Skeems used a banister rail from the staircase to hit Averette, driving him into the kitchen. Petitioner approached Skeems, put his hands around his throat, and told him to calm down. Skeems struck petitioner with the railing and petitioner "ran out the front door."
When interviewed by the police, Skeems did not mention the rope, but, consistent with his trial testimony, said Averette and petitioner arrived at the house a few minutes after Brown and White. Averette subsequently produced a gun and ordered Soutiere to the floor and that he took the railing from the stairs and struck Averette with it. Skeems also told the police petitioner approached Skeems after he struck Averette with the rail and told him, "chill out, it will be okay," at which point, Skeems struck petitioner.
In light of the testimony by Thomas, Soutiere, and Powell that petitioner and Averette contemplated tying up the victims and the other evidence of petitioner's active involvement in the robberies, including his providing the gun used by Averette, his warning to Soutiere, and his sharing the proceeds with Averette, petitioner cannot show counsel's failure to attempt to impeach Skeems regarding his failure to mention the rope to the police negatively impacted the outcome of his case. Thus, petitioner has failed to demonstrate there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In additional portions of claims (1), (2), and (3), petitioner contends he was denied the effective assistance of counsel because trial counsel failed to investigate or interview Powell and, as a result, he was unable to effectively cross-examine Powell or to impeach his credibility. Petitioner contends Powell, who testified at trial that Averette told petitioner to "find some rope" to tie up the victims, was interviewed by detectives and never mentioned Averette told petitioner to find some rope.
The Court holds these portions of claims (1), (2), and (3) fail to satisfy the "prejudice" prong of the two-part test enunciated in Strickland. The record, including the trial transcript and the notes of the police interview with Powell demonstrates Powell testified that, after Soutiere opened the door for Averette and petitioner, Averette went in the kitchen with Soutiere. Averette and petitioner spoke to Soutiere about the incident at the house the week prior involving Brown and White. Averette then "became enraged," produced a gun, told petitioner "grab some rope," and ordered Soutiere to the ground. Thomas and Skeems also testified Averette asked petitioner to get something to tie the victims up with and Soutiere testified either Averette or petitioner said, "Get some telephone wire or something so we can tie them up" and that petitioner warned them to stay on the ground and to do as Averette said. Powell testified that after he told petitioner to get some rope, Averette came to the living room "pointing the gun at [Powell] and [Thomas] and [Skeems].'' Averette robbed Skeems, Powell, and Thomas of their cell phones then returned to the kitchen. At that point, Powell and Thomas ran out of the house.
When interviewed by police, Powell said Averette arrived at the house with petitioner ten minutes after Brown and White. Averette told Powell his name was Jay, he demanded to see Brenner [sic], started yelling, produced a gun, and robbed everyone. Powell said nothing more about petitioner but gave police a description of him.
In light of the testimony by Thomas, Soutiere, and Powell that petitioner and Averette contemplated tying up the victims and the other evidence of petitioner's active involvement in the robberies, including his providing the gun used by Averette, his warning to Soutiere, and his sharing the proceeds with Averette, petitioner cannot show counsel's failure to attempt to impeach Powell regarding his failure to mention the rope to the police negatively impacted the outcome of his case. Thus, petitioner has failed to demonstrate there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
In additional portions of claims (1), (2), and (3), petitioner contends he was denied the effective assistance of counsel because trial counsel failed to investigate, interview, and subpoena White, who was interviewed by police and never alleged that the firearm Averette used belonged to petitioner, and who would ...

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