Fraierson v. Clarke, 1:12cv882 (LO/TCB)

• Decision Date: 04 December 2012
• Docket Number: 1:12cv882 (LO/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Jerod E. Fraierson, Petitioner, v. Harold W. Clarke, Respondent.

Jerod E. Fraierson, Petitioner,

v.Harold W. Clarke, Respondent.

1:12cv882 (LO/TCB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Dated: December 4, 2012

MEMORANDUM OPINION

Jerod E. Fraierson, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of drag offenses in the Circuit Court of New Kent County. On October 22, 2012, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Fraierson was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he has filed a reply. For the following reasons, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

I. Background

On January 11, 2010, Fraierson was convicted following a jury trial of four counts of distributing cocaine as a second or subsequent offense, and one count of causing a child to assist in the distribution of cocaine. Case Nos. CR09-76(01), CR09-67(03), CR09-67(04), CR09-67(06), and CR09-103(00). Additional charges of conspiracy to distribute cocaine were nolle prosequi. By Order entered January 14, 2010, Fraierson received a total sentence of thirty (30) years incarceration.

Fraierson's convictions were affirmed by the Virginia Court of Appeals in a unpublishedopinion dated July 28, 2010. It reflects the following underlying facts:

From January to June, 2009, a multi-jurisdictional task force of law enforcement officers was targeting drug sales in New Kent County. Steven Wilkerson worked as a paid undercover informant to make undercover drug purchases, which were videotaped and recorded using surveillance equipment hidden in Wilkerson's car and on his person. Wilkerson cooperated with the police to avoid a charge of driving on a suspended license. The police paid Wilkerson $100 for each drug transaction with which appellant was later charged.

Police officers met Wilkerson at 7:00 p.m. on April 17, 2009. The officers searched Wilkerson and his vehicle and found nothing illegal. Wilkerson placed a call to Leon Bowman. Wilkerson arranged to meet a person known as 'Black' and purchase sixty dollars worth of cocaine. Wilkerson drove to Adams Sportsmart, the agreed meeting location. Wilkerson got out of his car and approached the driver's side of a Chevrolet Tahoe. Darnell Bowers was driving the vehicle, and appellant, who was the person known as 'Black,' was in the front passenger seat. Wilkerson testified that he gave Bowers the money and received cocaine in return. The cocaine was inside a piece of paper with 'Black' written on it, as well as the number 852-4969. Appellant said Wilkerson could contact him at that number.

Wilkerson drove immediately to a meeting location with the police. Wilkerson gave the police the cocaine he had purchased, which totaled 0.47 gram.

The police followed the same procedure with Wilkerson at 4:20 p.m. on April 20, 2009, and a purchase of forty dollars worth of cocaine from 'Black' was arranged. Wilkerson placed a call to (804) 852-4969 to set up the deal. Wilkerson drove to a McDonald's in Bottoms Bridge. When a burgundy Tahoe arrived, Wilkerson got out of his car and approached the driver's side of the Tahoe. Curt Harris, a juvenile whom the police knew, was driving the vehicle. Appellant was the front seat passenger. Wilkerson testified he gave forty dollars to Harris and appellant gave him cocaine. Wilkerson met the police immediately after the transaction and turned over cocaine weighing 0.34 gram.

The police met Wilkerson again on April 29, 2009, at 5:09 p.m. After Wilkerson was searched, he placed a call to (804) 852-4969 and arranged to purchase sixty dollars worth of cocaine from 'Black' at the Bottoms Bridge McDonald's. The police observed the burgundyTahoe arrive at the agreed location. Wilkerson approached the passenger side of the vehicle. Wilkerson gave money to the driver of the vehicle, and appellant, who was the front seat passenger, passed cocaine to Wilkerson. Wilkerson gave the police the cocaine he purchased, which amounted to 0.39 gram.

The police stopped the burgundy Tahoe for a suspected equipment violation after it left the McDonald's parking lot. Darnell Bowers was driving the vehicle and appellant was the front seat passenger. Neither Bowers nor appellant was arrested on that occasion.

On May 27, 2009, the police met Wilkerson at 1:00 p.m. He made a call to (804) 852-4969 and arranged to purchase $100 worth of cocaine. The transaction was to occur at the Bottoms Bridge McDonald's. Appellant arrived at the location in a Mitsubishi driven by a woman. Wilkerson approached the vehicle and gave $100 to appellant. Appellant gave cocaine to Wilkerson. After the transaction, Wilkerson gave the police the cocaine he had purchased, which weighed 0.56 gram.

The police stopped the vehicle after it left the McDonald's. Shanobia Hudson was driving, and applicant was in the passenger seat. A fourteen-month-old child was in the back area of the car. The police recovered from Hudson the $100 bill they had given to Wilkerson to make the drug purchase. The number of the cellular telephone found in appellant's possession was (804) 852-4969.

After his arrest, appellant was seated beside Marcus Coles and Damian Temple as they all waited to appear before the magistrate. Appellant commented to Coles and Temple, 'I will not get caught. I don't hand the drugs directly to the crackhead. I gave them to somebody else.'

Hudson testified that she gave appellant a ride to the Bottoms Bridge McDonald's on May 27,2009. She stated that when they arrived at the location, an individual reached in the car and gave appellant money. Hudson saw applleant put his hand out the window. Once they had driven away, appellant gave her the money and told her to hold it. After the incident, Hudson was charged with endangering a child because her son had been in the car at the time of the drug transaction.

Bowers testified he used his girlfriend's car to drive applleant toAdams Sportsmart and meet Wilkerson on April 17, 2009. Wilkerson threw money into the vehicle, and appellant gave him something in return. On April 29, 2009, Bowers drove appellant to New Kent, although Bowers could not remember their exact destination. Bowers pleaded guilty to drug charges relating to the April 17 and April 29, 2009 events, and he agreed to testify against appellant.

At trial, the Commonwealth played recordings of the events the police officers, Wilkerson, and the other witnesses had described. The recording equipment malfunctioned on May 27, 2009, however, and it did not record Wilkerson's actual purchase of cocaine.

Testifying in his own behalf, applleant said he never received money from Wilkerson and gave him drugs. He claimed he was simply a passenger in the vehicle at the time the transactions occurred. Appellant denied making a statement while he was waiting to appear before the magistrate. Appellant admitted having a prior felony conviction.

Fraierson v. Commonwealth, R. No. 0203-10-2 (Va. Ct. App. July 28, 2010).

On direct appeal, Fraierson challenged the sufficiency of the evidence to sustain his convictions. His petition for appeal was denied on July 28, 2010, id., and his subsequent request for panel consideration was denied on October 5, 2010. The Supreme Court of Virginia also refused Fraierson's petition for a second-tier appeal. Fraierson v. Commonwealth, R. No. 102092 (Va. Apr. 8, 2011).

On February 21, 2012, Fraierson filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising 14 claims for relief. After the Commonwealth responded, the petition was dismissed on June 21, 2012. Fraierson v. Dir., Dep't of Corrections, R. No. 120317 (Va. June 21, 2012). Fraierson then turned to the federal forum and timely filed the instant § 2254 petition on August 1, 2012.¹ Fraierson reiterates the same claims he raised in hishabeas application to the Supreme Court of Virginia, as follow:

I. The Commonwealth failed to prove every element of his April 17, 2009 distribution charge.

2.. The Commonwealth failed to prove every element of his April 20, 2009 distribution charge.

3. The Commonwealth failed to prove every element of his April 29, 2009 distribution charge.

4. The Commonwealth failed to prove every element of his May 27, 2009 distribution charge.

5. The Commonwealth failed to prove every element of his April 20, 2009 charge of causing a minor to assist in the distribution of cocaine.

6. Counsel provided ineffective assistance by failing to file pretrial motions to seek severance of the misjoined charges.

7. Counsel provided ineffective assistance by failing to file a pretrial motion to suppress the videotape of the April 17, 2009 distribution offense.

8. Counsel provided ineffective assistance by failing to file a pretrial motion to suppress the videotape of the April 20, 2009 distribution offense.

9. Counsel provided ineffective assistance by failing to file a pretrial motion to suppress the videotape of the April 29, 2009 distribution offense.

10. Counsel provided ineffective assistance by failing to file a pretrial motion to suppress the videotape of the May 27, 2009 distribution offense.

11. The prosecutor made improper and prejudicial remarks in closing argument.

12. The prosecutor knowingly used false evidence to obtain the convictions.

13. Counsel rendered ineffective assistance by failing to object to the prosecutor's improper and prejudicial closing argument and use of false evidence.

14. Counsel was ineffective for failing timely to move for a reduction in his sentence.

Respondent has filed a Motion to Dismiss and Rule 5 Answer, and petitioner has replied. Respondent concedes that Fraierson has exhausted available state court remedies as to his claims.² Accordingly, the matter is now ripe for review.

II. Procedural Default

When the...