McCoy v. Director

• Decision Date: 11 March 2015
• Docket Number: Civil Action No. 3:13CV857
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CURTIS LAMONT McCOY, Petitioner, v. DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

CURTIS LAMONT McCOY, Petitioner, v. DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

Civil Action No. 3:13CV857

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

March 11, 2015

MEMORANDUM OPINION

Curtis Lamont McCoy, a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his conviction, following a guilty plea, in the Circuit Court of the City of Richmond ("Circuit Court") for second-degree murder. On January 29, 2015, the Magistrate Judge issued a Report and Recommendation that recommended dismissing the action. The Court advised McCoy that he could file objections within fourteen (14) days after the entry of the Report and Recommendation. McCoy filed objections. (ECF No. 21.) For the reasons that follow, McCoy's Objections will be OVERRULED, the Motion to Dismiss (ECF No. 6) will be GRANTED, and the action will be DISMISSED.

I. BACKGROUND

The Magistrate Judge made the following findings and recommendation:

McCoy argues entitlement to relief on the following grounds:

Claim One "Petitioner was denied the effective assistance of counsel[¹] . . . because trial counsel allowed petitioner to enter into a plea agreement when it was obvious that the prosecution would not be able to keep its end of the agreement." (Mem. Supp. § 2254 Pet. 1 ECF No. 2.)

Claim Two "Petitioner was denied due process[²] . . . when the prosecution breached its end of the agreement that petitioner entered into in exchange for his plea of guilty by not ensuring that petitioner serve his Federal obligation first." (Id.)

Respondent moves to dismiss on the grounds that McCoy's claims lack merit.³ McCoy has responded. For the reasons set forth below, it is RECOMMENDED that the Court GRANT the Motion to Dismiss (ECF No. 6).

A. The Applicable Constraints upon Federal Habeas Corpus 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)).

In light of the foregoing statutory structure, the findings of the Virginia courts figure prominently in this Court's opinion.

B. Pertinent Procedural History

Initially, McCoy was charged with first-degree murder, use of a firearm during the commission of a murder, and possession of firearm by a convicted felon. (Feb. 14, 2013 Tr. 52-54.) If convicted by a jury of all of the above offenses, McCoy faced a maximum sentence of life plus eight years and a minimum sentence of twenty-eight years of imprisonment (Feb. 14, 2013 Tr. 54-55.) Additionally, McCoy faced up to four years imprisonment for violating the terms of supervised release for a federal sentence. (Nov. 15, 2007 Tr. 4-5.)

At his plea hearing, the Commonwealth summarized its evidence as follows:

[O]n June 23, 2007, in the City of Richmond, south of the James, at the corner of Hayden and Lynhaven Avenue, Mr. Nathaniel was -- his mother would testify had just left his house, had told her that he was going to the store. Witnesses at the scene said that Mr. Nathaniel was walking down the street in the area. Mr. McCoy got out of a vehicle, approached Mr. Nathaniel, spoke to him and pulled out a gun and shot him.

. . . Mr. McCoy, later on that day, turned himself in to the police giving a statement that he acted in self-defense.

(Nov. 15, 2007 Tr. 11.)⁴

Following a guilty plea, the Circuit Court convicted McCoy of second-degree murder. The Plea Agreement provided, in pertinent part, that:

[T]he defendant will be sentenced as follows:

in case number 07F-4684 to 25 years incarceration in a Virginia Correctional Facility with 10 years suspended for 40 years

. . .

the defendant serve 3 years of this sentence concurrently with any federal sentence he may receive and that the federal incarceration be served prior to his state obligation . . . .

Plea Agreement at 1, Commonwealth v. McCoy, No. CR07-F-4684 (Va. Cir. Ct. filed Nov. 15, 2007).

On March 10, 2008, the Circuit Court, in accordance with the Plea Agreement, sentenced McCoy to:

Incarceration with the Virginia Department of Corrections for the term of: 25 years.

3 years of this sentence shall run concurrent with any federal time the defendant may receive. The federal incarceration shall be served prior to the defendant's state obligation.

The Court SUSPENDED 10 years of the sentence, for a period of 40 years . . . .

Commonwealth v. McCoy, No. CR07-F-4684, at 1 (Va. Cir. Ct. Mar. 10, 2008).

As discussed below, contrary to the parties' expectations, McCoy could not serve any portion of his 15-year active state sentence concurrent with his federal sentence. Following a delayed appeal, McCoy filed a petition for a writ of habeas corpus with the Supreme Court of Virginia wherein he raised the same grounds for relief as he now presents in his § 2254 Petition. See Memorandum of Law at 1, McCoy v. Dir. of the Dep't Corr., No. 120936 (Va. filed June 4, 2012). The Supreme Court of Virginia directed the Circuit Court to conduct an evidentiary hearing on McCoy's claims and issue findings of fact and recommended conclusions of law. McCoy v. Dir. of the Dep't of Corr., No. 120936, at 1 (Va. Nov. 30, 2012).

The Circuit Court conducted an evidentiary hearing and issued the following findings of fact and conclusions of law:

Petitioner is in Respondent's custody pursuant to final judgments of this Court entered on March 10, 2008. Following a guilty plea,⁵ Petitioner was convicted of second degree murder and was sentenced in accordance with the plea agreement to 25 years' incarceration with ten (10) years suspended and with three (3) years to run concurrent with "any Federal time the defendant may receive." (Case No. CR07-F-4684).

. . . .

. . . On November 30, 2012, the Supreme Court of Virginia issued an order remanding the matter to this Court to conduct an evidentiary hearing to determine, "[w]hether the petitioner's plea of guilty pursuant to the plea agreement rested in any significant way on terms that were subsequently violated or not fulfilled by the Commonwealth." (Record No. 120936, November 30, 2012).

Findings

On February 14, 2013, this Court conducted an evidentiary hearing. After a review of the criminal record and the evidence adduced at the hearing, this Court finds:

1. There was only one term of the plea agreement that was not fulfilled by the Commonwealth: the Commonwealth failed to ensure that Petitioner would serve his time in Federal custody first.

2. Petitioner was affected by this breach of the plea agreement. Petitioner did not receive credit for the three years that was to run concurrent with the federal time, and his state time was served prior to his federal time.

3. Respondent concedes that as the length of Petitioner's sentence is directly affected, Petitioner did significantly rely on the time running concurrent with his federal sentence.

4. Petitioner did not rely in any significant way on serving his federal time prior to serving his state time.

5. Currently, Petitioner will serve fifteen (15) years in state custody, then he will serve his federal time. This causes a violation of his plea agreement with the Commonwealth.

6. Justice requires that Petitioner's sentence be modified so that Petitioner serves the agreed upon twelve (12) years in state custody.

Analysis

The written plea agreement and the sentencing order called for Petitioner to receive a sentence of 25 years' incarceration with ten (10) years suspended and with three (3) years to run concurrent with any Federal sentence and the Federal sentence was to be served first. The result of the plea agreement and sentencing order was that Petitioner: would serve twelve (12) years in the custody of the Department of Corrections. However, Petitioner never entered . . . federal custody. As a result, Petitioner must serve his entire state sentence of 15 years before the Federal Bureau of Prisons will accept his transfer. (Tr. 17, 20, 24, 27). The amount of time a defendant will serve incarcerated is clearly material to the plea agreement. See generally Rule 3A:8(c) (plea agreement is to determine what charges a defendant may face and what sentencethe defendant may serve in exchange for a guilty plea). Consequently, Petitioner relied in a significant way on this element of the plea agreement.

Petitioner asserts that he relied on the plea agreement to serve his federal time first because he wanted "to avoid any confrontation [with the victim's relatives] and give things time to cool down." (Tr. 30). The Court finds no credible evidence to support this contention. While Petitioner related two incidents that occurred while in state custody that resulted in his transfer for

...