Marshall v. Clarke

Decision Date07 July 2020
Docket NumberCivil Action No. 3:19CV655
PartiesSHAYQUAN QUANTAE MARSHALL, Petitioner, v. HAROLD W. CLARKE, Respondent.
CourtU.S. District Court — Eastern District of Virginia

Shayquan Quantae Marshall, a Virginia inmate proceeding pro se, submitted a 28 U.S.C. § 2254 petition (hereinafter "§ 2254 Petition," ECF No. 1) challenging his conviction in the Circuit Court of the City of Richmond, Virginia (hereinafter "Circuit Court") of possession of cocaine with intent to distribute, 3rd or subsequent offense. In his § 2254 Petition, Marshall argues that he is entitled to relief on the following grounds:1

claim 1 "The trial court erred in denying the motion to suppress the evidence flowing from an unreasonably delayed traffic stop." (ECF No. 1, at 5.)
Claim 2 Ineffective assistance of counsel during trial and appellate proceedings:
(a) Trial counsel failed raise the decision in United States v. Rodriguez, 135 S. Ct. 1609 (2015) and failed to argue that Marshall was not issued a traffic ticket. (ECF No. 1-1, at 4.)(b) Trial counsel failed to argue that there was no probable cause for a stop, that Marshall was subject to an unreasonable search and seizure, and apply the "tainted evidence of the fruit of the poisonous tree doctrine." (ECF No. 1-2, at 3, 4.)
(c) Appellate counsel failed to raise the arguments set forth in Claim 2(a). (ECF No. 1-2, at 3, 6.)
Claim 3 The trial court violated Marshall's right to due process by allowing a police officer to interfere with a traffic stop initiated by another officer. (Id. at 8.)
Claim 4 The trial court violated Marshall's rights under the Fourth Amendment because no traffic charges were filed against Marshall as a result of the traffic stop leading to his arrest on drug charges. (Id. at 10.)
Claim 5 The trial violated Marshall's constitutional rights by sanctioning an unreasonable and unjustified search of his person. (Id. at 12.)
Claim 6 The trial court erred in assuming officers did not violate Marshall's rights by searching him "beyond the required parameters of the PISTOL database." (Id. at 17.)2
Claim 7 The state habeas court erred in dismissing Marshall's claims challenging the denial of the suppression motion at trial and on appeal. (Id. at 20.)

Respondent has moved to dismiss on the grounds that, inter alia: Claims 1 and 7 are not cognizable grounds for federal habeas relief; Claims 3, 4, 5, and 6 are procedurally defaulted; and the remaining claims lack merit. (ECF No. 12, 14.) Marshall hasresponded. (ECF No. 17.) In his Response, Marshall contends that he can show cause to excuse his defaults, because any default is attributable to the ineffective assistance of counsel. (Id. at 2-3.) For the reasons set forth below, the Motion to Dismiss will be granted.


Following a conditional guilty plea, Marshall was convicted in the Circuit Court of possession of cocaine with intent to distribute (third or subsequent offense) and sentenced him to ten years of incarceration. (ECF No. 14-1, at 1-2.)

A. Direct Appeal

On appeal, Marshall asserted that the trial court erred in denying his motion to "suppress because the officer unlawfully deviated from the stop in calling and assisting a K9 unit." (ECF No. 14-2, at 1.) That Court of Appeals of Virginia aptly summarized the pertinent facts in rejecting that challenge. It is helpful to recite those facts and the legal findings of the Court of Appeals here because they provide context for many of Marshall's claims of ineffective assistance of counsel.3

[T]he evidence reflects that on July 22, 2014 at approximately 11:30 a.m., Detective Milton was patrolling an area "known for having a lot of street-level narcotics." A vehicle, driven by Marshall cut infront of him. Milton pulled Marshall's vehicle over for that traffic violation and for a dangling object hanging from his rearview mirror. Detective Melton, who recognized Marshall from prior drug arrests, happened to be nearby and witnessed the stop.
Immediately after Milton stepped away from Marshall's vehicle to return to the patrol car, Melton, who was still in his patrol car, advised Milton of Marshalls criminal history. He mentioned that Marshall likely had narcotics on his person, and recommended that Milton call a K9 unit. Milton radioed for a K9 unit as he returned to his patrol vehicle. In the patrol car, he began checking the information he had collected from Marshall. Consistent with the information Melton had provided, Marshall's "PISTOL"4 background check indicated that he was a "narcotics seller, user, probably armed, a gang member."
Officer Robinson arrived at the scene with her drug-detection dog within five minutes of Milton calling for a K9 unit. At the time Robinson was dispatched at 11:37 a.m.,5 she was a mile away. She left the station at approximately 11:39 a.m. When she arrived, Milton had not yet finished investigating the traffic infraction. She spoke with Milton for approximately6 a "couple of minutes" in order to determine where Milton wanted her to run the dog. She removed the dog from the vehicle and it "immediately" alerted on the driver's side of the vehicle, where Marshall was seated with the window open. The alert occurred at 11:44 a.m. After the alert, Marshall admitted he had drugs on his person. Later, police found a clear plastic bag sewn into thefly of his shorts. The bag contained multiple individually-wrapped portions of a substance later determined to be crack cocaine.
For Fourth Amendment purposes, Marshall was seized throughout the duration of the stop. "A 'seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.'" Matthews v. Commonwealth, 65 Va. App. 334, 344, 778 S.E.2d 122, 127 (2015) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). "The seizure remains lawful only 'so long as [unrelated] inquiries do not measurably extend the duration of the stop.'" Id. (alteration in original) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009)). Marshall argues that Milton deviated from the traffic stop in three instances and that those deviations unlawfully prolonged the stop: (1) Milton's and Melton's conversation about Marshall's criminal history, (2) the delay attributed to Milton calling for a K9 unit, and (3) Milton's conversation with Robinson upon her arrival.
The stop here occurred prior to the United States Supreme Court decision in Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (holding that during a lawful traffic stop, a police officer "may conduct certain unrelated checks," but "may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual"). At the time of the stop in this case, binding precedent stated that there was no Fourth Amendment violation if any deviations or delays unrelated to the traffic stop were "deminimis." Matthews, 65 Va. App. at 353, 778 S.E.2d at 132; Ellis v. Commonwealth, 52 Va. App. 220, 227, 662 S.E.2d 640, 643 (2008). Evidence obtained during a search conducted in reasonable reliance on binding precedent at the time is not subject to the exclusionary rule. Davis v. United States, 564 U.S. 229, 241 (2011) (describing this dimension of the "good faith" exception). Therefore, we may assume without deciding that any delay here was unlawful under Rodriguez, but nevertheless, the evidence should not be excluded so long as the delays unrelated to the traffic offense were "deminimis."[7]Whether the delays were de minimis presents "a mixed question of law and fact that we review de novo on appeal." McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008). We are "bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Matthews, 65 Va. App. at 341-42, 778 S.E.2d at 126 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). After considering each alleged deviation individually, and then in their totality, we find that any extension of the stop caused by Milton's investigation of a suspected drug offense was only a deminimis delay. Thus, the evidence was admissible under the good faith exception to the exclusionary rule.
A. Milton's conversation with Melton
The record is silent as to the exact amount of time that Milton and Melton spoke. The trial court noted that either "just sort of in passing [Melton] yelled out to him" or "there was some discussion as [Milton] was travelling to the squad car." In either scenario, the conversation was limited in scope and duration. It also coincided with Milton's return to his patrol vehicle, which was part of the traffic stop. Furthermore, such a conversation advances the interest of protecting officer safety, given that Melton had prior experience with Marshall, and Marshall's PISTOL profile indicated he was "probably armed" and "a gang member." Ultimately, characterizing this conversation as akin to Milton checking Marshall's criminal history, the trial court ruled that the initial conversation with Melton was not a "deviation" from the traffic stop. We agree.
B. Milton calling a K9 unitSecond, Marshall challenges the delay caused by Milton's call for a K9 unit. Viewing the evidence in the light most favorable to the Commonwealth, Milton had already placed the call before he returned to his patrol vehicle to run Marshall's information. Because he needed to return to the patrol car as part of the investigation into the traffic offense, the most reasonable inference, viewing the evidence as we must, is that his placing this call en route did not result in any measurable delay.
C. Milton speaking with Robinson
Third, Marshall contends the traffic stop was interrupted when Milton

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