JOHN A. GIBNEY, Jr., District Judge.
Eric C. McCarter, a Virginia state prisoner proceeding pro se and in forma pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his conviction in the Circuit Court of the County of Caroline ("Circuit Court"). In his § 2254 Petition, McCarter argues entitlement to relief based upon the following grounds:
Respondent moves to dismiss the § 2254 Petition. (ECF No. 12.) McCarter has responded. (ECF No. 16.) The matter is ripe for disposition.
Following a jury trial, the Circuit Court convicted McCarter of one count of distribution of a controlled substance, third or subsequent offense, and sentenced him to twelve years of incarceration. Commonwealth v. McCarter, Nos. CR11000529-00, at 1-3 (Va. Cir. Ct. July 8, 2013).
McCarter v. Commonwealth, No. 0226-13-2, at 4 (Va. Ct. App. July 17, 2013). Based on this information, a search warrant was executed at McCarter's home and officers found evidence of drug distribution and usage. (See Oct 29, 2012 Tr. 132.) The Court of Appeals of Virginia concluded that "[t]he Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of distributing cocaine." McCarter, No. 0226-13-2, at 4. The Supreme Court of Virginia refused McCarter's subsequent petition for appeal. McCarter v. Commonwealth, No. 150077, at 1 (Va. June 19, 2015).
On May 22, 2014, McCarter filed a petition for a writ of habeas corpus in the Circuit Court raising claims similar to Claims One through Three of the instant § 2254 Petition. (See ECF No. 20-1, at 2-17.)
State exhaustion "`is rooted in considerations of federal-state comity,'" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will `best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "`opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present "`both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 317 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and `the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.1).
McCarter failed to raise Claim Four on direct appeal or in his state habeas petition before the Supreme Court of Virginia. If McCarter attempted to now assert Claim Four in a state habeas petition, it would be barred as successive pursuant to Va. Code Ann. § 8.01-654(B)(2), and would be barred pursuant to the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because McCarter could have raised, but failed to raise, this claim at trial and on direct appeal. Both Va. Code Ann. § 8.01-654(B)(2) and Slayton constitute adequate and independent state procedural rules when so applied. See Clagett v. Angelone, 209 F.3d 370, 379 (4th Cir. 2000); Mu'Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Thus, McCarter has procedurally defaulted Claim Four unless he demonstrates cause and prejudice to excuse his default or his actual innocence. McCarter fails to do so.
In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:
28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
To demonstrate ineffective assistance of counsel, a convicted defendant must show, first, that counsel's representation was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "`strong presumption' that counsel's strategy and tactics fall `within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.
In Claim One, McCarter argues that the "[t]rial court erred in finding trial counsel effective for not requesting a[n] informant instruction to be given to the jury." (§ 2254 Pet. 6.) Instead of providing argument in support of his claim, McCarter simply states that the "state['s] highest court was and/is obligated to find that McCarter's attorney rendered deficient performance pursuant to United States v. Luck, 611 F.3d 183 (4th Cir. 2010)." (Id.)
In summarizing and rejecting this claim, the Circuit Court explained:
(ECF No. 20-1, at 57.) The Court discerns no unreasonable application of the law and no unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). Given that the resolution of McCarter's claim of ineffective assistance of counsel is highly dependent on Virginia law, McCarter fails to demonstrate any prejudice. Richardson v. Branker, 668 F.3d 128, 141 (4th Cir. 2012) ("When a claim of ineffective assistance raised in a habeas corpus petition involves an issue unique to state law, . . . a federal court should be especially deferential to a state post-conviction court's interpretation of its own state's laws."). Moreover, counsel cross-examined the confidential informant and then appropriately argued to the jury that the confidential informant's "credibility is absolutely on trial here today." (Oct. 29, 2012 Tr. 379.) Because McCarter demonstrates neither deficiency of counsel nor resulting prejudice, Claim One will be DISMISSED.
In Claim Two, McCarter argues that the "[t]rial court erred in finding that trial counsel was effective by not waiting for full discovery before having the suppression hearing." (§ 2254 Pet. 7.) McCarter faults counsel for failing to "wait until she had the ''Brady information" to have a suppression hearing. (Id.) McCarter claims that this denied him his "constitutional right to receive exculpatory evidence." (Id.) In summarizing and rejecting this claim, the Circuit Court made the following findings:
(ECF No. 20-1, at 57-58 (paragraph numbers omitted).) The Court discerns no unreasonable application of the law and no unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). McCarter fails to identify with specificity what information about the informant counsel should have received prior to the suppression hearing and how that information would have changed the result of that hearing or trial. At most, he states that "since the informant was a[n] active participant in the alleged transaction, discovery regarding the informant'Brady was very important to the suppression hearing" because it "would have given counsel . . . the material needed to impeach the search warrant." (Resp. 5-6.) McCarter's conclusory allegations insufficiently demonstrate deficient performance or prejudice under Strickland, Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir 1990); see Sanders v. United States, 373 U.S. 1, 19 (1963) (finding denial of habeas relief appropriate where petitioner "stated only bald legal conclusions with no supporting factual allegations").
Moreover, to the extent McCarter believes that counsel should have obtained information about the confidential informant's past prior to the suppression hearing, the Court fails to discern any resulting prejudice. McCarter sold cocaine to a confidential informant from his home, police officers simultaneously listened to the transaction through an audio recording device, and the informant immediately gave the cocaine to the police. The officers confirmed that the informant had no drugs on him prior to the buy, observed the informant enter the house and exit the house, and then followed him to their designated meeting spot. Overwhelming evidence existed of McCarter's guilt, and he cannot show prejudice. Accordingly, Claim Two will be DISMISSED.
In Claim Three, McCarter contends that the "[t]rial court erred in finding that trial counsel was effective by trial counsel not requesting a [Franks v. Delaware, 438 U.S. 98 (1978)] hearing." (§ 2254 Pet. 9.) McCarter argues that the "affiant in McCarter's case committed perjury" and a "Frank[s] hearing serves to prevent the admission of evidence obtained pursuant to warrants that were issued only because the issuing magistrate was mis [led] into believing that there existed probable cause." (Id. (citations omitted).) In rejecting this claim, the Circuit Court made the following findings:
(ECF No. 20-1, at 58-59.) The Court discerns no unreasonable application of the law and no unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). To the extent that McCarter contends that Sergeant Nutter claimed that the informant had provided information for more than three years, and this information was false because he had worked with police for less time, this purported misstatement is immaterial. The testimony of both Sergeant Nutter and Investigator Blasiol established that they had an ongoing and extensive relationship with the confidential informant no matter the exact length of time. Counsel reasonably eschewed advancing a challenge to the search warrant affidavit on this ground.
In addition, this was not an instance where the officers had to rely on the credibility of a witness to establish probable cause. The search warrant here was not based solely on the account of the criminal activity from the confidential informant, but also on the officers' own monitoring of the transaction. Here, police provided the confidential informant with money, listened to the informant buy cocaine from McCarter, and then the informant gave the officers the cocaine he had purchased. Overwhelming evidence existed of McCarter's guilt of distribution of cocaine. McCarter fails to demonstrate any deficiency or resulting prejudice from counsel's failure to challenge the search warrant affidavit on this ground. Accordingly, Claim Three will be DISMISSED.
For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 12) will be GRANTED. McCarter's claims will be DISMISSED and his § 2254 Petition will be DENIED. The action will be DISMISSED. A certificate of appealability will be DENIED.
An appropriate Final Order shall issue.
