Sawyer v. Clarke

• Decision Date: 07 March 2014
• Docket Number: 1:13cv749 (TSE/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Linwood Bernard Sawyer, Petitioner, v. Harold W. Clarke, Respondent.

Linwood Bernard Sawyer, Petitioner, v. Harold W. Clarke, Respondent.

1:13cv749 (TSE/TCB)

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

Entered: March 7, 2014

MEMORANDUM OPINION

Linwood Bernard Sawyer, 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 validity of his conviction for possession with the intent to distribute cocaine in the Circuit Court for the City of Chesapeake, Virginia. On August 29, 2013. respondent filed a Rule 5 Answer along with a Motion to Dismiss and supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and has filed a response. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and this petition will be dismissed.

I. Background

On April 13. 2009. a jury convicted petitioner of one count of possession with intent to distribute cocaine, third offense in the City of Chesapeake Circuit Court. CR07495200. The Jury sentenced petitioner to 17 years of imprisonment. Petitioner appealed his conviction to the Court of Appeals of Virginia, arguing that (1) the court erred in failing to appoint an expert to review and evaluate the physical evidence; (2) the court erred in admitting expert witness testimony by Detective Kiley; and (3) the evidence was insufficient to show he constructively possessed the cocaine. The Court of Appeals of Virginia denied the petition for appeal on September 28. 2010. R. No. 2403-09-1. Petitioner's request for further appeal was denied by the Supreme Court of Virginia on January 28, 2011. R. No. 100880.

On January 11, 2012, petitioner timely filed a pro se petition for a writ of habeas corpus in the Circuit Court for the City of Chesapeake, alleging five claims of ineffective assistance of counsel. On May 22, 2012, the Circuit Court for the City of Chesapeake dismissed his state habeas petition. R. No. CL12-147. By Order dated December 14, 2012, the Supreme Court of Virginia dismissed petitioner's appeal of his state habeas petition. R. No. 121447.

On June 4, 2013,¹ petitioner timely filed the instant federal habeas petition raising the following ineffective assistance of counsel claims:

(1) Counsel was ineffective for failing to press his claim on appeal that the trial court erred in admitting a copy of the certificate of analysis into evidence that was not redacted.

(2) Counsel was ineffective for failing to preserve an objection to the admissibility of evidence that petitioner alleges denied him his Sixth Amendment right to cross-examine witnesses.

(3) Counsel was ineffective for failing to file a motion for new trial, pursuant to Melendez-Diaz v. Massachusetts.

(4) Counsel was ineffective for failing to "effectively" cross-examine the Commonwealth's witness that gave testimony that was in direct conflict with other witnesses "and were, therefore, inherently incredible."

(5) Counsel was ineffective for eliciting prejudicial testimony on an ultimate issue of fact from a Commonwealth's witness whose testimony was riddled with inflammatory and improper comments which invaded the province of the jury.

It is undisputed that these claims are identical to those raised in petitioner's state habeas petition. Therefore, petitioner's claims are exhausted for purposes of federal habeas review.

II. Standard of Review

When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudications are contrary to, or an unreasonable application of, clearly established federal law, or are based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of" federal law is based on an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Importantly, this standard of reasonableness is an objective one. Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court decision that previously addressed the claims rather than the petitioner's free-standing claims themselves." McLee v. Angelone, 967 F.Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139 F.3d 891 (4th Cir. 1998) (table).

III. Analysis

Petitioner's claims all allege ineffective assistance of counsel. To establish ineffective assistance of counsel, a petitioner must show that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defendant." Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's performance was deficient, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness," id. at 688, and that the "acts and omissions" of counsel were, in light of all the circumstances, "outside the range ofprofessionally competent assistance." Id. at 690. Such a determination "must be highly deferential," with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court "must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis"); Spencer v. Murray, 18 F.3d 229,233 (4th Cir. 1994) (court must "presume that challenged acts are likely the result of sound trial strategy.").

To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. And, in this respect, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; accord Lovitt v. True, 403 F.3d 171, 181 (4th Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created the possibility of prejudice, but rather "that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension." Murray v. Carrier, 477 U.S. 478, 494 (1986) (citations omitted, emphasis original). The two prongs of the Strickland test are "separate and distinct elements of an ineffective assistance claim," and a successful petition "must show both deficient performance and prejudice." Spencer, 18 F.3d at 233. Therefore, a court need not review the reasonableness of counsel's performance if a petitioner fails to show prejudice.

The Supreme Court of Virginia refused further review of petitioner's state habeas petition by its January 28, 2011 order. Because the Circuit Court for the City of Chesapeake's order was the last reasoned state court decision on petitioner's claims, its reasoning is imputed to the Supreme Court of Virginia, which refused further appeal without explanation. See Ylst v.Nunnemaker, 501 U.S. 797, 806 (1991). As such, only the Circuit Court for the City of Chesapeake's Order is reviewed below.

Claim 1:

In claim 1, petitioner alleges appellate counsel rendered ineffective assistance because counsel failed to pursue petitioner's claim that the trial court erred in admitting into evidence a "certificate of analysis" that had not been redacted. Petitioner argues that this created a "prejudicial effect caused by admitting the unredacted certificate, outweighed the probative value of the evidence and was error for the trial court not to do so." Pet. Attach, at 7-8. When the petitioner raised this claim in his state habeas petition, the Circuit Court for the City of Chesapeake ruled as follows:

Counsel's choice of which issues to raise on appeal is virtually unassailable. SeeJones v. Barnes, 463 U.S. 745 (1983) (counsel cannot be found ineffective for failing to raise every non-frivolous issue identified by a defendant); Townes v. Commonwealth, 234 Va. 307, 320, 362 S.E.2d 650, 657 (1987) (appellate counsel decides what questions should be raised on appeal). This is true because "appellate counsel is given significant latitude to develop a strategy that may omit meritorious claims in order to avoid burying issues in a legal jungle." Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). "The attorney need not advance every argument, regardless of merit, urged by the appellant and must play the role of an active advocate." Fitzgerald v. Bass, 6 Va. App. 38, 56, 366 S.E.2d 615, 625 (1988) (quoting Evitts v. Lucey, 469 U.S. 387, 394 (1985)) (emphasis added). As Sawyer plainly recognizes, the claim he would have appellate counsel advance was defaulted because, in fact, there was not a contemporaneous objection to the apparent failure to redact information from the Certificate of Analysis. See Rule 5A:18. "[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, S28 U.S. 2S9, 288 (2000) (emphasis added). Although it is possible to bring a Strickland claim based on counsel's failure to raise a particular claim, "it is difficult to

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