Truman v. White

• Decision Date: 14 January 2021
• Docket Number: 1:20cv602 (LMB/IDD)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Cecil Guy Truman, Petitioner, v. P. A. White, Respondent.

Cecil Guy Truman, Petitioner, v. P. A. White, Respondent.

1:20cv602 (LMB/IDD)

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

January 14, 2021

MEMORANDUM OPINION

Cecil Guy Truman ("Petitioner" or "Truman"), 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 September 19, 2016 convictions in the Circuit Court of Prince William County for five counts of distribution of heroin, two counts of felony child neglect, and one count each of possession of heroin with intent to distribute, possession of a firearm while in possession of a controlled substance, and possession of cocaine. The respondent filed a Rule 5 Answer and a Motion to Dismiss, with supporting briefs and exhibits. The petitioner 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) to the motion to dismiss and has responded. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted and the petition dismissed with prejudice.

I. Background

After a four-day jury trial ending on September 24, 2015, Truman was found guilty of five counts of distribution of heroin, and one count each of possession of heroin with intent to distribute, possession of a firearm while in possession of a controlled substance, possession of cocaine and two counts of felony child neglect. (Case Nos. CR15001416 through CR15001424 and CR15001426). On September 19, 2015, Truman was sentenced to a total of forty years and six months in prison, which on January 26, 2017 was reduced to a total sentence of thirty-one years in prison after the circuit court granted Truman's motion for reconsideration. The order modifying his sentences was entered on February 8, 2017.

A. Summary of Trial Evidence

At trial, several witnesses testified about Truman selling heroin to them. For example, Jenna Jensen ("Jensen") testified that he sold her heroin on a daily basis between April 15, 2014 and April 30, 2014; between May 1 and May 15, 2014; and a few times between May 16, 2014 and June 2, 2014. (9/22/15 Tr. at 70-72, 175, 180). Her testimony was corroborated by the police observing Truman sell her heroin on June 3, 2014. (Id. at 186-87). Jensen also identified text messages between her and Truman as agreements by Truman to sell her heroin. (Id. 192-94).

David Zupan ("Zupan") testified that he bought heroin from Truman about seventeen times between April 15, 2014 and April 30, 2014 (id. at 232-33); between May 1 and May 15, 2014, and between May 16, 2014 and June 2, 2014. (Id. at 234-36). Zupan also testified that he had seen Truman carrying a gun "numerous times" inside Truman's residence (id. at 226) and that Truman had a pistol with him on June 3, 2014 when Truman rode his motorcycle to the Value Place Hotel to meet with Aimee Brown and Zupan. (Id. at 190-91, 226, 243). Aimee Brown ("Brown") paid the money to a police informant (Greg Powers) and then went to another location to pick up the drugs from Truman. (Id. at 282-82; 9/23/15 at 66-69).

Kimberly Royston ("Royston"), who had lived with Truman and his family, testified that she purchased heroin from Truman and his wife (9/22/15 Tr. at 93-95), and that while living with Truman, Royston observed a firearm that Truman said belonged to his wife. (Id. at 90).Royster testified that Truman's wife had the pistol for security and that she never saw Truman with the pistol. (Id. at 90-91).

A search of Truman's home after his arrest disclosed a loaded operational firearm in the master bedroom (9/21/15 Tr. at 185, 188; 9/22/15 Tr. at 60), a bag of ammunition (9/21/15 Tr. at 223), 139 hypodermic needles (id. at 201-03) and other drug paraphernalia. (Id. at 197, 199-201). The laboratory analysis showed heroin, heroin residue and cocaine on several of the items found in Truman's home. (Id. at 227-28). The police recovered a box of ammunition from Truman's motorcycle on June 9, 2014 when it was searched after his arrest. (9/22/15 Tr. at 51-53; 9/22/15 Tr. at 15).

Truman testified at trial that the gun seized by the police and introduced at trial was his wife's and that she had purchased the pistol from a Jeff Robson. (9/23/15 Tr. at 193). Truman testified that he had never possessed the pistol and denied ever selling heroin to either Royston, Zupan, Brown, or Jensen (id. at 190, 192, 193-94, 205, 207, 217), but did admit buying heroin from Zupan and using heroin with his wife. (Id. at 190, 207-08). Truman described Zupan as the dealer, and said that Zupan had come to Truman's residence on numerous occasions to sell heroin to Truman.

B. Appellate Proceedings

With the assistance of counsel, Truman appealed his convictions to the Court of Appeals of Virginia ("Court of Appeals") which considered his appeal in which he raised two issues:

1. The trial court erroneously found good cause to grant the Commonwealth's motion to nolle prosequi Mr. Truman's charges where the motion deprived Mr. Truman of his due process rights.

2. The trial court erroneously denied a new trial where the Commonwealth did not correct a prosecution witness's false testimony.

[Dkt. No. 10-1 at 2]. The Court of Appeals summarized the relevant trial record as follows:

Appellant was scheduled to stand trial on January 27, 2015, for distribution of a controlled substance, possession with intent to distribute a controlled substance, conspiracy to dispense drugs, simultaneous possession of a firearm and a controlled substance, two counts of child neglect, possession of a firearm by a convicted felon, and possession of a firearm by a violent convicted felon. Appellant's counsel, Myron Teluk, moved to withdraw on January 23 because of a conflict of interest. The trial court granted the motion, appointed Scott Swajger as substitute counsel, and continued the trial to February 13. On that date, Swajger indicated to the trial court that he was not ready for trial and requested a June trial date. Appellant objected to a June date, and the trial court continued the case until February 20 for appellant to discuss the matter with his counsel. Swajger moved to withdraw during this next appearance, so the trial court appointed Brian Roman as appellant's counsel and continued the trial to May 4-6. On April 15, Roman moved to withdraw and the trial court appointed Mark Crossland as appellant's counsel.

At a hearing on May 1, Crossland asked the trial court to continue the case because he had been appointed only two weeks before the multi-day jury trial date and, in light of ongoing discovery issues, could not feasibly be prepared in time for the trial despite the approaching speedy trial deadline pursuant to Code § 19.2-243. The Commonwealth joined the motion in order to "protect the process" in light of appellant's conflicting speedy trial and effective assistance rights. Appellant indicated that he opposed the motion, which the trial court ultimately denied. After that, the Commonwealth moved to continue the possession of a firearm by a violent convicted felon charge, which had a longer period before the speedy trial time limit expired, until June 3. The trial court granted this motion.

The Commonwealth then moved to nolle prosequi the remaining charges. Appellant opposed this motion, contending that no good cause existed. The Commonwealth cited its concerns that, were the charges to go forward as scheduled, the issue regarding adequate representation for appellant would "endanger[] our convictions, if there are any obtained ...." The trial court found that good cause supported the motion and granted it.

A grand jury entered fresh indictments against appellant on June 1, 2015, and he stood trial on September 21-24, 2015. During its case-in-chief, the Commonwealth called Kimberly Royston, who had been charged in connection with the investigation of appellant. On cross-examination, counsel for appellant asked whether her attorney told her that she would receive a bond if she cooperated with the government, to which she replied, "No." She indicated that she did not know why her case had been continued until after appellant's trial. She also denied that any Commonwealth representative told her that she would receive a better deal if she testified during appellant's trial.

Following his convictions, appellant moved for a new trial based on newly discovered evidence: a letter from Royston suggesting that the Commonwealth had offered her a plea deal in exchange for testifying in appellant's trial. The trial court conducted a hearing on this motion on August 4, 2016, at which Royston testified. She stated that she did not believe she perjured herself at the September 2015 trial. Asked whether any Commonwealth representative made promises to her about her charges, she replied: "They said they couldn't make no promises or guarantees but they said they would see what they could do to lessen my charge." She went on to state that she did not mention bond in her letter and "was never aware if they did anything for [her] bond." Referring to the standard necessary for granting a new trial based on after-discovered evidence, the trial court ruled:

"[A]t this point, we're really on one witness and should that have been a material enough change that couldn't have been found in advance of trial that should have or would have produced an opposite result of this trial. And I simply can't find that it is. So[,] I'm denying your motion.

[Dkt. No. 10-1 at 2-4]; Truman v. Commonwealth, 2018 Va. App. LEXIS 81, *2-5 (Ct. App. Va. Mar. 27, 2018).

The Court of Appeals dismissed Truman's first issue because he had not properly raised the matter at his trial.

In this case, appellant did not challenge the Commonwealth's reinstitution of charges against him based on its lack of good cause to support the nolle prosequi of the initial charges. SeeHarris v.

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