Saunders v. Clarke, Civil Action No. 3:19CV946-HEH

• Decision Date: 14 December 2020
• Docket Number: Civil Action No. 3:19CV946-HEH
• Court: U.S. District Court — Eastern District of Virginia
• Parties: REGGIE DONNELL SAUNDERS, Petitioner, v. HAROLD W. CLARKE, Respondent.

REGGIE DONNELL SAUNDERS, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 3:19CV946-HEH

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

December 14, 2020

MEMORANDUM OPINION

(Denying § 2254 Petition)

Reggie D. Saunders, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1), challenging his conviction in the Circuit Court of the City of Virginia Beach, Virginia (hereinafter, "Circuit Court"). His § 2254 Petition form lists two grounds and he labels the second, "Procedural Due Process." (See ECF No. 1 at 6.) However, upon the Court's review of the § 2254 Petition, it appears that Saunders truly only raises one claim for relief. Saunders argues entitlement to relief based upon the following:

Claim One: Counsel rendered ineffective assistance when he "fail[ed] to raise an objection to a clear and indisputable error" in Saunders's presentence report which "prejudiced the outcome of his sentence." (Id. at 5.) Counsel failed to object to the error in the presentence report that stated, "that he was found guilty of two [possession with intent to distribute]" counts and had counsel addressed the error, Saunders would have received a lower sentence. (ECF No. 1-1 at 5.)

Respondent moves to dismiss on the ground that Saunders's claim is procedurally defaulted and barred from review here, and, in the alternative, lacks merit. Despite the provision of Roseboro notice, and receiving an extension of time on June 16, 2020, Saunders has not filed a response. For the reasons set forth below, the Motion to Dismiss (ECF No. 15) will be granted.

I. PROCEDURAL HISTORY

Saunders's claim as alleged is difficult to follow. The Court of Appeals of Virginia aptly summarized the procedural history in the Circuit Court prior to Saunders's appeal and its opinion helps provide some context for his claim here:

On July 2, 2015, detectives with the City of Virginia Beach Police Department observed the appellant engage in what appeared to be a series of drug transactions. When the police approached the appellant as he sat in the car, they saw two bags of pills in his lap and found an additional bag of pills in his pocket. After being advised of his rights, the appellant admitted that he was selling prescription medications.

Subsequently, an indictment was issued charging the appellant with possession of oxycodone with intent to distribute in violation of Code § 18.2-248. The single indictment contained two generic, identically worded counts. The appellant agreed to plead guilty to both offenses. The parties stipulated to the discovery of the three bags of pills in the appellant's lap and in his pocket. The certificate of analysis reflected that one of the bags contained oxycodone, the second bag contained a mixture of oxycodone and acetaminophen, and the third contained alprazolam.

The appellant was convicted of both counts of possessing oxycodone with intent to distribute. He was also convicted of distributing alprazolam and distributing a controlled substance within 1000 feet of a school.¹ All convictions were based upon the appellant's guilty pleas.

The circuit court sentenced the appellant to sixteen years in prison for each count of possession of oxycodone with intent to distribute. He was sentenced to five years in prison for distribution of alprazolam and an additional five years for distribution of a controlled substance within 1000 feet of a school. The court ordered all sentences to run concurrently. It stated that the "total sentence imposed is [sixteen] years," and it suspended "all but [eight] years."

II. ANALYSIS

Both parties agree that the appellant's conviction and sentence for two counts of possession of oxycodone with intent to distribute violates the constitutional prohibition against double jeopardy on the facts of this case.

They disagree, however, regarding the proper remedy for the double jeopardy violation.

Under settled principles, an appellate court may not accept even formal concessions of law without independently confirming their correctness.²Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc); see Jones v. Commonwealth, 293 Va. 29, 59 n.27, 795 S.E.2d 705, 723 n.27, cert. denied, 86 U.S.L.W. 3149 (U.S. Oct. 2, 2017) (No. 16-1337). Consequently, even though the parties agree that a double jeopardy violation occurred, we examine both the double jeopardy issue and the appropriate remedy.

A. Standard of Review

The appellate court reviews de novo a claim that multiple punishments have been imposed for the same offense in violation of the Double Jeopardy Clause. Lawlor v. Commonwealth, 285 Va. 187, 227, 738 S.E.2d 847, 870 (2013). The same de novo standard applies to review of determinations involving the interpretation of mandatory and discretionary sentencing statutes. See Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

B. Double Jeopardy Violation

The Fifth Amendment of the United States Constitution protects a defendant against double jeopardy. See, e.g., Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999). "In a single-trial setting, 'the role of the constitutional guarantee is limited to assuring that the [circuit] court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)), quoted with approval in Johnson v. Commonwealth, 292 Va. 738, 741, 793 S.E.2d 321, 322-23 (2016). In this context, "the same offense" can include multiple counts of identical offenses arising from the same facts as well as convictions for a greater offense and a lesser-included offense that arise out of the same facts. See, e.g., Commonwealth v. Hudgins, 269 Va. 602, 605, 611 S.E.2d 362, 364 (2005).

The appellant argues that in the context of the facts of this case, his conviction and sentence for two counts of possession with intent to distribute violates the prohibition against double jeopardy. The Commonwealthcandidly agrees. The Commonwealth also takes the position that the appellant did not waive his right to assert the double jeopardy challenge by pleading guilty. Our independent analysis leads us to the same conclusion.

. . . .

Under United States Supreme Court precedent, a double jeopardy claim survives a guilty plea if it is obvious from the "indictment[] and the existing record" that the second offense "'is one [that] the State may not constitutionally prosecute.'" United States v. Broce, 488U.S. 563, 575-76 (1989) (quoting Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam)); see United States v. Brown, 155 F.3d 431, 434 (4th Cir. 1998); see also Broce, 488 U.S. at 575 ("[W]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, . . . a conviction on that charge [must] be set aside even if the conviction was entered pursuant to a counseled plea of guilty.") (quoting Menna, 423 U.S. at 62)). In the context of cases involving both multiple prosecutions and multiple punishments rendered in a single prosecution, a guilty plea does not bar a challenge on double jeopardy grounds where "the claim is that the [Commonwealth] may not convict [the defendant] no matter how validly his factual guilt is established." Menna, 423 U.S. at 62 n.2; see Kaiser v. United States, 489 U.S. 1002 (1989) (vacating and remanding in light of Broce in a case involving multiple punishments in a single prosecution in which the Court of Appeals had held that no double jeopardy violation occurred), on remand, 893 F.2d 1300, 1302-03, 1306-07 (11th Cir. 1990) (applying Broce and Menna to hold that a double jeopardy violation occurred in the single prosecution).

In the case of multiple convictions for possession of the same controlled substance, case law holds that multiple punishments for such convictions violate the Double Jeopardy Clause if the acts of possession are not "sufficiently differentiated by time, location, or intended purpose." Peake v. Commonwealth, 46 Va. App. 35, 41, 614 S.E.2d 672, 676 (2005) (quoting Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 2000)). In Lane v. Commonwealth, 51 Va. App. 565, 659 S.E.2d 553 (2008), for example, police approached the defendant outside his residence near the attached garage. Id. at 569, 659 S.E.2d at 554-55. They found two different bags of oxycodone tablets in different pockets of the clothing he was wearing and a bottle of liquid oxycodone in the garage. Id. On these facts, the Court held that the defendant could be convicted and punished for only one count of possession with intent to distribute oxycodone because the evidence established only a single general intent with regard to the different containers of the illegal drug. Id. at 578-82, 659 S.E.2d at 559-61.

In the appellant's case, counts one and two of the indictment contain generic, identically worded language charging him with possession of oxycodone with the intent to distribute it. Other than naming the appellant, the substance, and the date of the offense, each count recites only thelanguage of the statute. The stipulation of facts and attachments reflect only that the appellant was found with two bags of oxycodone in his physical possession and that he admitted that he was selling prescription medications. Thus, in the appellant's case, like in Lane, the evidence does not differentiate between the two bags of oxycodone by time, location, or intended purpose. Id. As a result, the face of the record makes clear that a second offense did not occur and that the appellant's conviction and sentence for the second count of possession with intent to distribute violates double jeopardy principles. See Ali, 280 Va. at 669-71, 701 S.E.2d at 67-68. In the face of this clear, substantial, and material error, the ends of justice exception to Rule 5A:18 applies, and

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