Valentino v. Clarke

• Decision Date: 26 August 2020
• Docket Number: No. 18-7295,18-7295
• Citation: 972 F.3d 560
• Parties: Kervinton VALENTINO, Petitioner – Appellant, v. Harold CLARKE, Director, Virginia Department of Corrections, Respondent – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

972 F.3d 560

Kervinton VALENTINO, Petitioner – Appellant,

v.Harold CLARKE, Director, Virginia Department of Corrections, Respondent – Appellee.

No. 18-7295

United States Court of Appeals, Fourth Circuit.

Argued: December 10, 2019

Decided: August 26, 2020

ARGUED: Bradley Rittenhouse Haywood, Arlington, Virginia, for Appellant. Katherine Quinlan Adelfio, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Donald E. Jeffrey, III, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before KING, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge King and Judge Agee joined.

RICHARDSON, Circuit Judge:

According to Virginia prosecutors, Kervinton Valentino beat, shot, and robbed a prostitute in an Alexandria hotel room. But Valentino claimed an unknown assailant sprung upon him—wounding the woman as well as Valentino himself. The trial was a proverbial swearing match: "If you believe [the victim]," the prosecution summarized, then "the defendant is guilty of all charges. If you don't believe her, if you believe the Defendant's version, then [ ] he's not guilty." J.A. 461. Although he concurred with the prosecution's premise, Valentino argued his story was sound. Yet the jury found him guilty, and the trial judge sentenced Valentino to twenty years in prison.

In state habeas proceedings, Valentino moved to overturn his convictions on the theory that his trial attorney was so ineffective as to violate the Sixth Amendment right to counsel. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Valentino claimed that his lawyer should have sought forensic testing of various items in the hotel room to bolster his story. The state post-conviction court agreed that Valentino's bloody sock deserved DNA testing. Even so, the court found this failure did not harm Valentino's defense. As for the rest of Valentino's claims, the state court held trial counsel's performance neither deficient nor prejudicial. Thus, the state court denied post-conviction relief without ordering new forensic testing.

Valentino then brought a federal habeas petition again raising these Sixth Amendment claims. See 28 U.S.C. § 2254. First, the district court found the state post-conviction court previously "adjudicated" Valentino's "claim[s] ... on the merits." J.A. 761; see § 2254(d). This finding triggered our highly deferential standard of review for state-court convictions. Next, applying that standard, the district court held that the state court's adjudication was neither unreasonable nor inconsistent with Supreme Court precedent. See J.A. 764; § 2254(d)(1). So the court dismissed Valentino's habeas application and rejected his request for an evidentiary hearing. Because we agree that the state court adjudication was not unreasonable, we affirm.

I. Background

In the early hours of May 2, 2012, Kervinton Valentino arranged to pay Aaliyah Islam for sex in a hotel room. On that foundational fact, the Parties agree. But from there, they paint starkly different pictures of the subsequent robbery and shooting. According to the Commonwealth, Valentino pulled a gun on Islam, robbed her, beat her, and shot her. The defense, however, asserted that Islam was not alone: she and an accomplice planned to rob Valentino—they pulled a gun on him . We summarize each case in turn.

A. The prosecution's case

1. Islam's testimony

The Commonwealth built its case on Islam's testimony. On May 1, 2012, Islam flew from Northern California to Virginia to "have sex for money." J.A. 19, 32. After landing at Dulles Airport, Islam took a shuttle to an extended-stay hotel in Alexandria where she planned to entertain clients. Her room included a kitchen, bathroom, and bedroom with a doorless coat closet. Although Islam attested to occupying her room alone, she kept a pair of toothbrushes and two deodorant sticks in the bathroom. One toothbrush, she explained, was for her teeth, and the second was used to apply hair product. Islam further claimed that she layered on two brands of women's deodorant since she "sweat[s] a lot." J.A. 117.

After perusing Islam's online profile on "backpage.com," Valentino arranged for an encounter. He drove to Islam's hotel, parked in the lot, and met Islam at the agreed time. Islam let Valentino into the hotel and escorted him to her third-floor room. Seeing that Islam was alone, Valentino claimed to have forgotten his wallet. So he went back to his car, leaving his cell phone in Islam's room. In reality, the prosecution argued, Valentino went to retrieve his gun after confirming Islam lacked security. Islam again let Valentino into the hotel, they returned to the room, and Valentino retrieved $140 in cash from his pocket. (Islam never saw a wallet.) Valentino then undressed, carefully placed his clothes on the floor, and tried to have sex with Islam.¹

When Valentino was unable to maintain an erection, the encounter quickly devolved into a violent robbery. Islam looked down at her cell phone to text her boyfriend in California as Valentino retrieved his clothes.² When Islam looked up, Valentino had "a gun in [her] face." J.A. 57. Valentino commanded, "Give me everything. Everything you got give it to me. Where's all the money at?" J.A. 58. He then swiped Islam's cell phone from her hand, took back the $140, and stole another of Islam's phones from the dresser drawer. Valentino again pointed the gun in Islam's face, threatening that, if Islam said "anything smart[,] ... he was going to shoot [her] in the foot." J.A. 59.

After quickly searching the room and Islam's belongings, Valentino discovered a laptop hidden under the bed. Valentino then "cocked the gun back," saying, "I'm going to give you ten seconds to give me everything you got .... [I]f you don't give me everything you got and I find it, I'm going to shoot you." J.A. 63. But Islam had just arrived in Virginia and explained that she had nothing else to give.

Valentino continued to threaten Islam, and eventually, Islam "jumped up and pushed the gun out of [her] face." J.A. 64. But Islam—at 5’3" and 110 pounds—was little match for Valentino—armed, half-a-foot taller, and more than fifty pounds heavier. Grabbing Islam by the hair, Valentino slung her to the floor, ripping the hair extensions from her head and punching her in the face. At one point, Valentino dropped the gun. Islam reached for it, but Valentino got there first. He shot her in the leg.

After shooting Islam, Valentino "hesitated to leave," debating whether to take her laptop. J.A. 71. He left it and fled the hotel through a side door. Islam testified that, as he left, Valentino was walking normally, and he did not "wince or cry in pain." J.A. 118. Islam got up and went to the hallway window, leaving bloody footprints in her wake. She watched Valentino enter a black SUV. Islam then called 911 from her hotel-room phone.

Responding to a report of gunshots and a woman screaming, law enforcement was already headed to the hotel. When they arrived, they observed the bloody footprints leading from a hotel room to a window in the hallway and back to the room. They knocked on the door, and Islam let them in. Her left leg was wrapped in a towel, "soaked with blood." J.A. 122. Officers helped Islam from the doorway and sat her down in the hall. Inside, blood plastered the bedroom and the bathroom. Clothes were also strewn around the bedroom, and Islam's torn hair extensions were scattered on the floor. Police searched Islam's room and found a single bullet casing in the bedroom.³

Islam was taken to the hospital and treated for her injuries. At trial, she authenticated photos that showed where the bullet entered and exited her leg. Islam also identified x-rays showing where the bullet "crossed either the fibula or the tibia and the smaller bone" and fragmented inside her leg. J.A. 81, 83–84.⁴ According to Islam, Valentino shot her; no one else was involved in the altercation.⁵ Islam testified that Valentino was not shot during the fight. And, she continued, when Valentino left the hotel room, he was not limping

and never indicated that he was in pain.⁶

2. Valentino's arrest and interview

The next day, the police tracked Valentino to a Chesapeake motel using a "find my Android" feature on one of Islam's stolen phones. Based on the number in Islam's cell phone, Valentino had texted her father: "Tell [your] daughter to stop prostituting.

This is the police." J.A. 310. Valentino also tried to speak with Islam's father on the phone and tried to call another contact that he believed to be Islam's mother.

Outside the motel, officers spotted a black SUV and ran its plates. The car was registered to a Kervinton Valentino. Officers then witnessed a man matching Valentino's description (5’9", around 165 pounds with a beard and a tattoo on his right forearm) leaving the motel with a rolling suitcase. One officer approached the man and asked for his name. In response, Valentino began "physically shaking," his hands "were stuttering," and there was "some nervousness in his voice." J.A. 182.

Officers patted Valentino down, finding a semi-automatic handgun concealed at his waist. Julien Mason, a firearms expert with the Virginia Department of Forensic Science, would later match this gun to the bullet casing found in Islam's hotel room. Valentino "screamed" that he "just found the gun in the room." J.A. 189, 507. But Valentino would not answer which room. J.A. 189. When asked what he had been doing in the room, Valentino said he was "having sex with a girl." J.A. 189. But then Valentino "denied being in the hotel at all." J.A. 191.

One of Islam's cell phones was in Valentino's pocket. The other was in his black SUV. When later asked about the rolling suitcase he was pulling, Valentino said that it...