Filed: Mar. 22, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7082 CLIFTON L. COLLINS, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:13-cv-00763-JAG) Argued: December 9, 2015 Decided: March 22, 2016 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam op
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7082 CLIFTON L. COLLINS, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:13-cv-00763-JAG) Argued: December 9, 2015 Decided: March 22, 2016 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7082
CLIFTON L. COLLINS,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:13-cv-00763-JAG)
Argued: December 9, 2015 Decided: March 22, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Bernard Hargett, HARGETT LAW, PLC, Glen Allen,
Virginia; James T. Maloney, JAMES T. MALONEY, PC, Richmond,
Virginia, for Appellant. Donald Eldridge Jeffrey, III, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clifton L. Collins (“Appellant”) appeals the district
court’s order dismissing his petition for a writ of habeas
corpus, in which he challenges his convictions for attempted
abduction and use of a firearm in the commission of a felony.
The district court determined that none of Appellant’s claims
merit relief.
We granted a certificate of appealability on two of
Appellant’s claims that alleged ineffective assistance of
counsel. Because Appellant has not demonstrated counsel’s
alleged errors prejudiced him, however, we affirm the dismissal
of Appellant’s petition on the grounds explained below.
I.
A.
Appellant was a bail bondsman licensed in North
Carolina. In 2006, Appellant posted bond for a criminal
defendant, James Sydnor (“Sydnor”). Sydnor failed to appear in
a North Carolina court as required, in violation of his bond.
Upon learning that Sydnor would be attending a funeral
in Mecklenburg County, Virginia, Appellant traveled to Virginia
in March 2007 with the intent to apprehend Sydnor. Appellant
was not licensed as either a bail bondsman or bail enforcement
agent in Virginia. When he arrived in Mecklenburg County,
Appellant sought the assistance of the local deputy sheriff in
2
arresting Sydnor. However, the sheriff’s department declined to
get involved in the absence of an extradition request from North
Carolina.
At the funeral, Appellant approached Cleveland Spruill
(“Spruill”), who Appellant thought was Sydnor. In fact, Spruill
was Sydnor’s cousin who had a familial resemblance to Sydnor.
Appellant blocked Spruill’s car with his truck and advanced
toward him. Appellant pointed a gun at Spruill and muttered, “I
believe you see what it is motherfuck.” J.A. 103; 1 see also
Collins v. Commonwealth, 720 S.E.2d 530, 531 (Va. 2012).
Assuming that he was being robbed, Spruill stated that he had no
money, to which Appellant responded, “[T]his ain’t about money.”
J.A. 103;
Collins, 720 S.E.2d at 531.
Appellant then grabbed Spruill’s shoulder and pulled
him toward the truck. Appellant asked Spruill for
identification, and Spruill showed Appellant his driver’s
license, which confirmed that he was not Sydnor. At that point,
Appellant immediately drove off, and Spruill reported the
incident to local law enforcement.
The State of Virginia charged Appellant with attempted
abduction and use of a firearm in the commission of attempted
1Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
abduction. Following a bench trial, the state court adjudged
Appellant guilty of attempted abduction pursuant to
sections 18.2–26 and 18.2–47 of the Code of Virginia, and use of
a firearm in the commission of a felony pursuant to section
18.2–53.1 of the Code of Virginia. Appellant was sentenced to a
term of five years of imprisonment on the attempted abduction
charge, all suspended, and to the mandatory term of three years
of imprisonment on the firearm charge. On February 11, 2015,
Appellant finished serving his term of imprisonment, yet the
five suspended years remain outstanding.
B.
Appellant appealed his convictions to the Court of
Appeals of Virginia and the Supreme Court of Virginia. On
direct appeal, Appellant raised two arguments: (1) he had the
legal authority under federal common law to attempt to seize
Sydnor, see Taylor v. Taintor, 83 U.S. 366 (1872) (“When bail is
given, the [surety] . . . . may pursue [the principal] into
another State . . . .”); and (2) he did not have the specific
intent to abduct the victim, Spruill, because but for a mistake
of fact, he believed he was seizing Sydnor. Both courts upheld
his convictions. See Collins v. Com.,
702 S.E.2d 267 (Va. Ct.
App. 2010), aff’d,
720 S.E.2d 530 (Va. 2012). As to the first
argument, Appellant contended that he had legal justification to
act as an out-of-state bail bondsman under Taylor. But the
4
Supreme Court of Virginia concluded that, by the enactment of
Article 11 (bail bondsmen) and Article 12 (bail enforcement
agents) of Chapter 1, Title 9.1 of the Code of Virginia
(collectively, “bail bondsman statutes”), 2 the Virginia state
legislature abrogated the federal common law right set forth in
Taylor. See Collins v. Com., 720 S.E.2d 530 (Va. 2012).
Appellant then filed a state habeas corpus petition
with the Supreme Court of Virginia. There, he raised five
claims: (1) the evidence at trial was insufficient to prove his
intent to abduct the victim; (2) he was denied due process
because of the retroactive application of the court’s
construction of Virginia’s bail bondsman statute; (3) his
counsel was ineffective for failing to raise this due process
right; (4) he was denied due process because he lacked the
requisite intent to commit abduction; and (5) his counsel was
2A “bail bondsman” is defined as “any person who is
licensed by the Department [of Criminal Justice Services] who
engages in the business of bail bonding and is thereby
authorized to conduct business in all courts of the
Commonwealth.” Va. Code Ann. § 9.1–185. Bail enforcement
agents/bounty hunters are “any individual[s] engaged in bail
recovery.” Va. Code Ann. § 9.1–186. A nonresident applicant
for a bail bondsman license or bail enforcement license must
meet the same licensing requirements as a resident. See Va.
Code Ann. §§ 9.1–186.2(B), –186.7. Pursuant to sections 9.1–
185.18 and -186.13 of the Code of Virginia, a person commits a
Class 1 misdemeanor by engaging “in bail bonding for profit or
other consideration without a valid license issued by the
Department [of Criminal Justice Services] in this Commonwealth.”
Va. Code Ann. §§ 9.1-185.18, -186.13.
5
ineffective for failing to preserve this argument that Appellant
lacked specific intent to commit abduction.
The Virginia court held that the first claim was
barred from review in a habeas corpus petition. See Collins v.
Clarke, No. 130099, slip op. at 2 (Va. 2013). Next, the court
held that Appellant’s two due process claims were not preserved
at trial and were, therefore, barred from review. See id. at
2-3. Finally, the Supreme Court of Virginia found that the two
ineffective assistance claims satisfied neither prong of
Strickland v. Washington,
466 U.S. 668 (1984). See
id. at 3-4.
Appellant timely filed a petition for writ of habeas
corpus in the United States District Court for the Eastern
District of Virginia pursuant to 28 U.S.C. § 2254, raising the
following five claims:
(1) Appellant had a legal justification or
excuse for his actions because he was acting
as a bail bondsman or bail enforcement agent
licensed in North Carolina pursuant to his
common law right to recover a principal who
violated a bail contract, which right was
not expressly abrogated by Virginia statute,
and he had contacted local law enforcement
before proceeding to secure the fugitive and
was given express or implied permission;
(2) The state appellate courts denied
Appellant’s right to due process by
retroactively applying Virginia statutory
licensing requirements on bail bondsmen to
limit his common law rights;
(3) Appellant’s counsel was ineffective in
failing to argue that the retroactive
6
application of the licensing requirements
violated his due process rights;
(4) Appellant’s conviction violated due
process because he lacked the requisite
intent to commit abduction;
and
(5) Appellant’s counsel was ineffective in
failing to argue that Appellant lacked the
specific intent to commit abduction.
The district court granted the Government’s motion to
dismiss, relying primarily on the reasons articulated in the
decisions by the Supreme Court of Virginia. See Collins v.
Clarke, No. 3:13-cv-00763-JAG, 2014 WL 2777438 (E.D. Va. June
19, 2014). The district court concluded that the retroactivity
and requisite intent arguments were precluded from review
because they were not preserved at trial. See
id. at *4-5.
Additionally, the district court concluded that the legal
determinations by the Supreme Court of Virginia -– that the
Virginia legislature abrogated the federal common law right of
out-of-state bail bondsman to apprehend fugitive bailees, and no
ineffective assistance existed -- were reasonable. See
id. at
*3, 6-7.
In July 2014, Appellant timely noticed his appeal. We
issued a certificate of appealability on only two of his claims:
(1) Whether [Appellant’s] trial counsel was
ineffective in failing to preserve for
appeal the issue of whether the retroactive
application of Virginia statutory licensing
7
requirements to limit his common law rights
as a bail bondsmen violated his right to due
process; and
(2) Whether [Appellant’s] counsel was
ineffective in failing to argue at trial and
on appeal that [Appellant] lacked the
requisite intent to commit an abduction.
Order at 1, Collins v. Clarke, No. 14-7082 (4th Cir. Feb. 10,
2015), ECF No. 13.
II.
We review de novo a district court’s denial of habeas
relief. See Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015).
Appellant filed his habeas petition pursuant to the
Antiterrorism Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d)(1), which provides,
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
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[.]
28 U.S.C. § 2254(d)(1).
“[A]n unreasonable application of federal law is
different from an incorrect application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410 (2000). Thus, “a federal
8
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411. In determining
whether it was an “unreasonable application,” we inquire as to
whether it was “objectively unreasonable.”
Id. at 409 (internal
quotation marks omitted). “This is a difficult to meet and
highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of
the doubt.” Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011)
(internal citations and quotation marks omitted).
To prevail on an ineffective assistance of counsel
claim, Appellant must establish that his counsel’s performance
was both deficient and that it prejudiced the outcome. See
Strickland, 466 U.S. at 687-88 (stating that one must show
counsel’s conduct “fell below an objective standard of
reasonableness,” and “the deficient performance prejudiced the
defense”). In analyzing counsel’s performance, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.”
Id. at 689 (internal quotation marks omitted).
There is a strong presumption that counsel “rendered adequate
9
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Cullen, 131 S. Ct. at 1403
(quoting
Strickland, 466 U.S. at 690).
Even if counsel’s performance was deficient, Appellant
must still show prejudice. To do so, Appellant must establish
“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. A reasonable probability is one
“sufficient to undermine confidence in the outcome.”
Id.
Additionally, “[i]n cases where a conviction has been the result
of a trial, the defendant must demonstrate that but for
counsel’s errors, there is a reasonable probability that he
would not have been convicted.”
Lee, 781 F.3d at 122-23
(alteration in original) (internal quotation marks omitted).
“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”
Strickland, 466
U.S. at 697.
Lastly, when an appellant raises a claim of
ineffective assistance of counsel, “[t]he AEDPA standard and the
Strickland standard are dual and overlapping, and we apply the
two standards simultaneously rather than sequentially.” Lee,
781 F.3d at 123 (alteration in original) (quoting Richardson v.
Branker,
668 F.3d 128, 139 (4th Cir. 2012)). “Because both
10
standards of review are highly deferential to the state court’s
adjudication . . ., when the two apply in tandem, the review is
doubly so.” Id. (alteration in original) (internal quotation
marks omitted).
III.
Appellant asserts that the Supreme Court of Virginia
erroneously applied Strickland v. Washington, 466 U.S. 668
(1984), because it was unreasonable to conclude that Appellant’s
counsel was not deficient or that Appellant did not suffer
prejudice when retroactive application of the bail bondsman
statutes or the lack of requisite intent could have excused his
actions. We address each issue in turn.
A.
Appellant first argues that the federal common law
established in Taylor v. Taintor, 83 U.S. 366 (1872), validates
his conduct here. See
id. at 371 (“When bail is given, the
[surety] . . . . may pursue [the principal] into another State
. . . .”). Against this federal common law backdrop, Appellant
contends that his counsel was ineffective in failing to preserve
for appeal the issue of whether the retroactive application of
the Virginia bail bondsman statutes abrogated Appellant’s common
law rights as a bail bondsman. Even if Appellant’s counsel was
deficient in this regard, however, Appellant’s argument falters
at the second prong of the Strickland analysis -- that is,
11
Appellant cannot demonstrate that but for counsel’s alleged
errors, the result of Appellant’s proceedings would have been
different. See Lee v. Clarke, 781 F.3d 114, 122-23 (4th Cir.
2015); see also
Strickland, 466 U.S. at 697.
First, to the extent that Appellant challenges whether
the bail bondsman statutes abrogated Taylor, that decision is
best left to Virginia. See Appellant’s Br. 13-19. As the
Supreme Court has made clear, “federal habeas corpus relief does
not lie for errors of state law.” Lewis v. Jeffers, 497 U.S.
764, 780 (1990); see also Estelle v. McGuire,
502 U.S. 62, 67-68
(1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
Instead, we limit our review only to the due process
concerns set forth in the certificate of appealability. See
United States v. Linder, 561 F.3d 339, 344 n.6 (4th Cir. 2009);
see also Order at 1, Collins v. Clarke, No. 14-7082 (4th Cir.
Feb. 10, 2015), ECF No. 13. Yet, because Appellant’s
ineffective assistance of counsel argument relates to the
retroactive application of the bail bondsman statutes, we cannot
ignore the interplay of Taylor and Virginia law.
In support of his argument that his counsel should
have preserved the claim that the Virginia Supreme Court’s
retroactive application of the bail bondsman statutes denied him
due process, Appellant relies on Bouie v. City of Columbia, 378
12
U.S. 347 (1964). In that case, the Supreme Court held, “If a
judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed
prior to the conduct in issue, it must not be given retroactive
effect.”
Bouie, 378 U.S. at 354 (internal quotation marks
omitted). To prevail on a Bouie claim, Appellant must establish
that the Virginia bail bondsman statutes were “vague” or that
there was “an unforeseeable and retroactive judicial expansion
of statutory language that appears narrow and precise on its
face.” Rogers v. Tennessee,
532 U.S. 451, 457 (2001). Here,
Appellant contends only the latter. Appellant argues that the
revocation of the out-of-state bail bondsman’s common law right
to apprehend a fugitive was not clear at the time of the conduct
giving rise to his convictions. Rather, he asserts that such
revocation of the federal common law was made clear for the
first time by the Virginia court rulings in his case. This
argument is unavailing, and we conclude that the Supreme Court
of Virginia’s decision was reasonable.
1.
First, the bail bondsman statutes were enacted in
2004, three years prior to Appellant’s conduct at issue. The
Supreme Court of Virginia concluded that there was no judicial
expansion of the bail bondsman statutes that would have made the
13
application of the laws unforeseeable in the circumstance at
hand.
We cannot perceive how the General Assembly
could have more plainly manifested its
intent to abrogate the long standing common
law rule allowing out-of-state bail bondsmen
and bounty hunters to enter Virginia to
apprehend fugitive bailees. It is
inconceivable that the General Assembly
intended to impose such strict requirements
upon in-state bail bondsmen and bounty
hunters as those enacted as a result of the
Crime Commission report, yet intended to
leave out-of-staters with the unfettered
right to enter Virginia and apprehend
fugitive bailees without being subject to
regulation.
Collins v. Commonwealth, 720 S.E.2d 530, 533 (Va. 2012).
This determination is not unreasonable. The bail
bondsman statutes are unambiguous, and Appellant had fair notice
of what was required under the law. The retroactivity principle
is grounded in the requirement that a criminal statute afford “a
person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute.” United
States v. Harriss, 347 U.S. 612, 617 (1954). The Supreme Court
has consistently recognized “due process bars courts from
applying a novel construction of a criminal statute to conduct
that neither the statute nor any prior judicial decision has
fairly disclosed to be within its scope.” United States v.
Lanier,
520 U.S. 259, 266 (1997). In order to determine whether
the bail bondsman statutes afford fair notice of the court’s
14
statutory interpretation, we look to the language of the statute
and to judicial interpretation of it. See Bouie, 378 U.S. at
354.
As noted, the bail bondsman statutes were enacted in
2004 by the Virginia General Assembly, nearly three years prior
to Appellant’s 2007 conduct. See Va. Code Ann. §§ 9.1–185
to -185.18, -186 to -186.14. Pursuant to section 9.1–185.18 of
the Code of Virginia, a person commits a Class 1 misdemeanor by
engaging “in bail bonding for profit or other consideration
without a valid license issued by the Department [of Criminal
Justice Services] in this Commonwealth.” Va. Code Ann.
§ 9.1-185.18. The Criminal Justice Services Board (“Board”)
establishes licensing qualifications to “ensure respectable,
responsible, safe and effective bail enforcement within the
Commonwealth,” including a requirement that a nonresident
applicant for a bail enforcement license must meet the same
licensing requirements as a resident. Va. Code Ann. §§ 9.1–
186.2(B), –186.7. The Department of Criminal Justice Services
issues the licenses, in conjunction with the regulations
established by the Board. See Va. Code Ann. §§ 9.1-186.3, –
186.5, –186.6(A).
Considering that bail bondsmen, who are licensed in
Virginia pursuant to section 9.1–185, and “licensed bail
enforcement agent[s]” are the only people expressly permitted
15
“at any time” to seize their bailees within the Commonwealth,
the legislation expressly provides that only people licensed by
the Commonwealth could engage in bail recovery. Va. Code Ann.
§ 19.2-149. Therefore, given that the bail bondsman statutes
clearly dictate the necessary elements for legally engaging in
bail bonding activities in Virginia, we cannot embrace
Appellant’s argument that he did not have fair notice that his
actions were illegal under Virginia law.
2.
Additionally, trends in other jurisdictions are
relevant to determine whether the new rule is “to be unexpected
and indefensible.” Rogers, 532 U.S. at 464. Numerous
jurisdictions have addressed the interaction between state
statutes regulating bail bondsmen and common law bail bondsmen
rights and have concluded that the state regulations abrogate
conflicting common law rights. See, e.g., Lund v. Seneca County
Sheriff’s Dep’t,
230 F.3d 196, 198 (6th Cir. 2000); Ouzts v.
Maryland Nat’l Ins. Co.,
505 F.2d 547, 551–53 (9th Cir. 1974)
(en banc); Moncrief v. State Comm’r of Ins.,
415 So. 2d 785, 788
(Fla. Dist. Ct. App. 1982); Walker v. Commonwealth,
127 S.W.3d
596, 606 (Ky. 2004); Commonwealth v. Wilkinson,
613 N.E.2d 914,
917 (Mass. 1993); State v. Epps,
585 P.2d 425, 429 (Or. Ct. App.
1978); Green v. State,
829 S.W.2d 222, 223 (Tex. Crim. App.
1992). That the Virginia court’s decision adhered to this trend
16
is to be expected. An unsurprising conclusion about a clearly
drafted statute is not the “unforeseeable . . . judicial
expansion of statutory language” contemplated by Bouie. Rogers,
532 U.S. at 457.
3.
In sum, Appellant’s Bouie due process argument stood
little chance of success even if it had been properly preserved.
We agree with the Supreme Court of Virginia that, assuming that
the conduct of Appellant’s counsel was deficient, such
deficiency did not prejudice Appellant. Therefore, we conclude
the court’s application of Strickland with regard to this
contention was reasonable.
B.
Next, Appellant contends that the Supreme Court of
Virginia unreasonably rejected his argument that his counsel was
ineffective for failing to argue that Appellant “possessed
intent only to support a conviction for acting as a bail
recovery agent without a license,” but not the specific intent
to commit abduction. Appellant’s Br. 30. Appellant argues the
alleged abduction was merely incidental to his unlicensed bail
bonding activities. Appellant’s argument is tenuous, at best.
Pursuant to section 18.2–47 of the Code of Virginia, a
person is guilty of abduction when he “by force, intimidation or
deception, and without legal justification or excuse, seizes,
17
takes, transports, detains or secretes another person with the
intent to deprive such other person of his personal liberty or
to withhold or conceal him from any person, authority or
institution lawfully entitled to his charge.” Va. Code Ann.
§ 18.2-47.
When “an offense consist[s] of an act combined with a
particular intent, proof of such intent is as necessary as proof
of the act itself and must be established as a matter of fact.”
Ridley v. Commonwealth, 252 S.E.2d 313, 314 (Va. 1979). “Intent
in fact is the purpose formed in a person’s mind and may be, and
frequently is, shown by circumstances[,] . . . which may be
shown by a person’s conduct or by his statements.” Hargrave v.
Commonwealth,
201 S.E.2d 597, 598 (Va. 1974). The Supreme Court
of Virginia has opined,
The specific intent to commit [the crime]
may be inferred from the conduct of the
accused if such intent flows naturally from
the conduct proven. Where the conduct of
the accused under the circumstances involved
points with reasonable certainty to a
specific intent to commit [the crime], the
intent element is established.
Wilson v. Commonwealth, 452 S.E.2d 669, 674 (Va. 1995)
(citations omitted). “[W]hether the required intent exists is
generally a question for the trier of fact.” Nobles v.
Commonwealth,
238 S.E.2d 808, 810 (Va. 1977).
18
Here, it is clear that Appellant engaged in an
attempted abduction of Spruill. The evidence presented at trial
included Appellant’s use of a firearm, force and threats, and
intimidation to attempt to get another person into his waiting
vehicle. These factors “all prove beyond a reasonable doubt
that, without legal justification or excuse, [Appellant] seized
another person with the intent to deprive such other person of
his personal liberty.” Collins, 720 S.E.2d at 534 (internal
alterations and quotation marks omitted). Appellant’s misguided
belief that he was attempting to abduct his bailee, Sydnor, does
not alter the equation.
In advancing his incidental conduct argument,
Appellant relies on Brown v. Commonwealth, 337 S.E.2d 711 (Va.
1985), and Johnson v. Commonwealth,
275 S.E.2d 592 (Va. 1981),
to contend that he lacked the requisite intent to commit the
abduction. However, Brown is not applicable here. In Brown,
the defendant was prosecuted for both abduction by detention and
a crime that required restraint of a victim.
Brown, 337 S.E.2d
at 712. There, the defendant raised whether these charges
constituted multiple punishments for the same offense in
violation of the Double Jeopardy Clause. See
id. at 712-13.
The Brown court concluded,
We hold . . . that one accused of abduction
by detention and another crime involving
restraint of the victim, both growing out of
19
a continuing course of conduct, is subject
upon conviction to separate penalties for
separate offenses only when the detention
committed in the act of abduction is
separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crime.
Id. at 713-14; see also Johnson,
275 S.E.2d 592 (finding no
intent to abduct when defendant’s restraint was only for
furtherance of sexual advances). Here, Appellant raises neither
a double jeopardy claim, nor an argument that the attempted
abduction was intrinsic to the act of engaging as an unlicensed
bail recovery agent. Pursuant to section 9.1-186 of the Code of
Virginia,
“Bail recovery” means an act whereby a
person arrests a bailee with the object of
surrendering the bailee to the appropriate
court, jail, or police department, for the
purpose of discharging the bailee’s surety
from liability on his bond. “Bail recovery”
shall include investigating, surveilling or
locating a bailee in preparation for an
imminent arrest, with such object and for
such purpose.
Va. Code Ann. § 9.1-186. Thus, by merely engaging in bail
recovery acts -- i.e., pursuing or investigating a bailee in
Virginia -- Appellant violated the licensure statute. This is
so because even if no attempted abduction took place, Appellant
was still in violation of the licensing requirements for
engaging in bail recovery. Indeed, any licensure violation was
already complete before his attempt to abduct Spruill began.
20
The mere fact that Appellant intended to deprive a different
person of his liberty has no bearing on Appellant’s intent to
abduct some other individual or his intent to violate the
licensure statute, and consequently, it was “separate and apart”
from the offense of acting as an unlicensed bail recovery agent.
Brown, 337 S.E.2d at 714.
Ultimately, even assuming arguendo that counsel was
deficient, Appellant has not demonstrated that, but for
counsel’s alleged failure, the result of the proceeding would
have been different. Accordingly, we cannot conclude the state
court’s application of Strickland was unreasonable.
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
21
