Hickman v. Commonwealth of Virginia, No. 3:2011cv00668 - Document 9 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 6/26/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JOHN F. HICKMAN, Petitioner, v. Civil Action No. 3:llcv668 COMMONWEALTH OF VIRGINIA, Respondent. MEMORANDUM OPINION John F. Hickman, a Virginia probationer proceedingpro se, brings thispetition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the Circuit Court of the County of Henrico, Virginia ("Circuit Court"). Respondent has moved todismiss the § 2254 Petition. Hickman has replied. This matter is ripe for judgment. I. PROCEDURAL HISTORY The Court of Appeals of Virginia effectively summarized the facts in this case: [W]hen Henrico County Police Officer Livengood responded to a 911 call at [Hickman's] business, [Hickman] alleged that the mother ofhis child (V.M.) had hit the baby carrier with the baby strapped into the carrier causing the carrier to fall off a couch onto the floor. V.M. denied the allegation, and Officer Livengood observed that the baby did not seem injured or distressed. The officer, who was required to make an arrest upon an allegation of domestic assault, asked [Hickman] to fill out a written statement form. Moments later, [Hickman] returned the blank statement form to the officer, now stating that he did not want to file a written report against V.M. [Hickman] then explained that the incident of V.M. causing the baby carrier to fall to the floor did not happen.['] Officer Livengood asked, "So, you made it up?" [Hickman] responded, "Yes." Hickman v. Commonwealth, No. 1733-09-2, at 2 (Va. Ct. App. Dec. 9, 2009). Hickman testified that he retracted his truthful report "[bjecause one, [V.M.'s] mother didn't want me to get [V.M.] in trouble. Two, Ihad an eight-day-old baby who was being breast-fed [by V.M.]. I mean, what can, I mean, I can't feed the baby. I mean, I can't give him milk." (July 7,2009 Tr. 31:19-22.) The Circuit Court found Hickman guilty of giving a false police report, imposed a $500.00 fine, and sentencedhim to twelve months of imprisonment suspended for a period of five years. (July 7, 2009 Tr. 41:23-42:10.) Hickman appealed, arguing that the evidence adduced at trial was insufficient to support his conviction. The Court of Appeals of Virginia denied the appeal. Hickman, No. 1733-09-2, at 1, 3. The Supreme Court of Virginia refused Hickman's subsequent petition for appeal. Hickman v. Commonwealth, No. 092602, at 1 (Va. June 11,2010). Hickman next filed a petition for a writ of habeas corpus in the Circuit Court ("State Habeas Petition"). In his State Habeas Petition, Hickman argued, inter alia, that "he was deprived of due process in the admission of his statement to [Officer Livengood]." Hickman v. Commonwealth, No. CL10-2430, at 1 (Va. Cir. Ct. Mar. 3,2011). The Circuit Court "dismisse[d] [this] claim[ ] as procedurally defaulted under the rule in Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974)[.]"2 Id. at 1-2. The Supreme Court ofVirginia dismissed Hickman's subsequent petition for appeal finding "that the appeal was not perfected in the manner provided by law because [Hickman] failed to file the notice of appeal." Hickman v. Commonwealth, No. 110989, at 1 (Va. Aug. 22,2011). Hickman then filed the § 2254 Petition in this Court making the following claims: Claim One The Commonwealth "[v]iolat[ed] [Hickman's] due process right under the Fourteenth Amendment"3 by admitting Hickman's statements to Officer Livengood into evidence. (§2254 Pet. 4.)4 2Slayton bars habeas petitioners from raising claims that they could have, but did not, raise on direct appeal. See Slayton, 205 S.E.2d at 682. "No state shall... deprive any person of life, liberty, or property, without due process of law ...." U.S. Const, amend. XIV § 1. 4The § 2254 Petition does notcontain page numbers. Accordingly, in citations to this document, the Court will refer to the page numbers assigned by the Court's CM/ECF system. Claim Two (a) Trial counsel deficiently5 failed to suppress Hickman's statements to Officer Livengood. (b) Trial counsel deficiently failed to make a motion to strike at the close of the Commonwealth's evidence. (c) Appellate counsel "never presented [Hickman's] theory that the evidence did not meet the corpus delicti rule as communicated to counsel via email." (Id) II. PROCEDURAL DEFAULT Respondent asserts that Claim One is procedurally defaulted. The doctrine of procedural default 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." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).6 Whether astate procedural rule is adequate and independent is aquestion offederal law. Henry v. Mississippi, 379 U.S. 443, 447 (1965). The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex IState Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage ofjustice, this Court cannot review themerits ofa defaulted claim. See Harris v. Reed, 489 U.S. 255,262 (1989). "Inallcriminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. Afederal habeas petitioner may also procedurally default a claim when the "petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meetthe exhaustion requirement would now find the claims procedurally barred.'" Breard, 134 F.3d at 619 (quoting Coleman, 501 U.S. at735 n.l). The parties do not dispute that Hickman's claims are exhausted. A. Dismissal of the State Habeas Petition The Circuit Court dismissed the State Habeas Petition based on the Supreme Court of Virginia's ruling in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974). Hickman v. Commonwealth, No. CLlO-2430, at 1-2 (Va. Cir. Ct. Mar. 3, 2011). The United States Court of Appeals for the Fourth Circuit has "held on numerous occasions that the procedural default rule set forth in Slayton constitutes an adequate and independent state law ground for decision." Mu'min v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997) (citing cases). Thus, unless Hickman can demonstrate either cause andprejudice or actual innocence to excuse his default, Claim One is procedurally defaulted. B. Obtaining Review Despite Default This Court may review a petitioner's procedurally defaulted claims if the petitioner establishes either cause and prejudice or actual innocence. Breard, 134 F.3d at 620. "Cause" in this contextmeans an "objective factor external to the defense" sufficient to thwartan actual attempt tocorrectly file the claims instate court. McNeill v. Polk, 476 F.3d 206, 214 (4th Cir. 2007) (citing Richmond v. Polk, 375 F.3d 309, 324 (4th Cir. 2004)). Hickman bears the responsibility to assert cause and prejudice and/or actual innocence. See Burket v. Angelone, 208 F.3d 172, 183 n.10 (4th Cir. 2000). Hickman fails to assert either. Accordingly, Claim One will be DISMISSED. III. INEFFECTIVE ASSISTANCE To demonstrate ineffective assistance ofcounsel, a 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 ofStrickland, the 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 componentrequires a 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, 466U.S. at 694. 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 error of constitutional dimensions." Murray v. Carrier, 477 U.S. 478,494 (1986) (internal quotation marks omitted; emphasis omitted). However, in analyzing ineffective assistance of counsel claims, the Courtneednot determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Strickland, 466 U.S. at 694. A. Claim Two (a) In Claim Two (a), Hickman asserts that "trial counsel filed no motions to determine the voluntariness ofthe statement given by [Hickman]."7 (§ 2254 Pet. 4.) "[T]he United States Supreme Court has long recognized that Mirandafy warnings are implicated only during a custodial interrogation." Aldridge v. Commonwealth, 606 S.E.2d 539, 550 (Va. Ct. App. 2004) It appears from Hickman's submissions that when Hickman refers to "the statement" (§ 2254 Pet. 4; Pet'r's Resp. Mot. Dismiss 5) he is referring to is the following testimony from Officer Livengood: [Livengood] I explained to Mr. Hickman that [V.M. knocking the baby carrier to the floor] ether happened or it didn't happen and asked him which one it was. He indicated that it didn't happen. I then stated, "So, you made it up?" And he said, "Yes." (July 7, 2009 Tr. 8:16-19.) 8Miranda v. Arizona, 384 U.S. 436,467 (1966). 5 (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Here, nothing in the record indicates that Hickman's "freedom [had] been so restricted as to render him ... 'in custody.'" Harris v. Commonwealth, 500 S.E.2d 257, 262 (Va. Ct. App. 1998) (citing Mathiason, 492 U.S. at 495.) Indeed, Hickman testified that, immediately prior to making the statement in question, he spoke on the phone and waited on a customer. (See July 7, 2009 Tr. 28:9-13.) Thus, trial counsel had no reason to object to the admission of Hickman's statement to Officer Livengood based on a contention that the statement was given in violation ofMiranda and, thus, was not voluntary. Hickman cannot show deficiency based on trial counsel's failure to make a frivolous objection. See Baker v. United States, Nos. 3:07-CR-435, 3:10-CV-762, 2011 WL 3841690, at *14 (E.D. Va. Aug. 30, 2011). Accordingly, because Hickman fails to show deficiency, Claim Two (a) will be DISMISSED. B. Claim Two (b) In Claim Two (b), Hickman aversthat trial counsel never made a motion to strike at the close ofthe Commonwealth's evidence. (§ 2254 Pet. 4.) Hickman asserts that, by omitting this motion, trial counsel "fail[ed] to preserve [Hickman's] right to appeal on the alleged statement." (Pet'r's Resp. Mot. Dismiss 5.) However, despite the fact that trial counsel failed to make this motion, the Court of Appeals ofVirginia considered the merits of Hickman's petition for appeal. See Hickman v. Commonwealth, No. 1733-09-2, at 1-3 (Va. Ct. App. Dec. 9,2009). Thus, Hickman cannot show that trial counsel's omission prejudiced him. Accordingly, Claim Two (b) will be DISMISSED. C. Claim Two (c) In Claim Two (c), Hickman asserts that appellate counsel deficiently failed to "advocatfe] [Hickman's] theory ofthe case as instructed by [Hickman]." (Pet'r's Resp. Mot. Dismiss 7.) Specifically, "[c]ounsel for appeal never presented [Hickman's] theory that the evidence did not meet the corpus delicti rule[9] as communicated to counsel via email." (§ 2254 Pet. 4.) "The alleged confession by me stated by [Officer Livengood] was uncorroborated. The prosecution must prove that corroborating evidence exists that the crime that the defendant has confessed to did actually occur." (Pet'r's Resp. Mot. Dismiss Ex. 5.) To establish ineffective assistance of appellate counsel, a petitioner must demonstrate deficiency and prejudice, as required by Strickland. Bell v. Jarvis, 236 F.3d 149,164 (4th Cir. 2000). Appellate counsel is under no obligation to raise all non-frivolous issues on appeal. Smith v. Murray, 477 U.S. 527, 536 (1986) ("[W]innowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (internal quotation marks omitted). To the contrary, appellate counsel is charged with reviewing the record and "selecting the most promising issues for review." Jones v. Barnes, 463 U.S. 745, 752(1983). "Forjudges to second-guess reasonable professional judgments and imposeon appointed counsel a duty to raise every 'colorable' claim suggested by a clientwould disserve the very goal of vigorous and effective advocacy that underlies Anders [v. California, 386 U.S. 738 (1967)]." Id. at 754. To overcome the presumption of effective assistance of appellate counsel, petitioner must demonstrate that ignored issues were "'clearlystronger than those presented.'" Bell, 236 F.3d at 164 (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). Officer Livengood testified credibly that Hickman made a statement to him that V.M. intentionally knocked the baby carrier to the floor. (July 7, 2009 Tr. 7:7-8.) Officer Livengood The corpus delicti rule provides that a conviction cannotbe basedsolelyon the uncorroborated statement of a person that a crime has occurred and that he committed it. Downey v. Commonwealth, 716 S.E.2d 472, 475 (Va. Ct. App. 2011) (citing Hamm v. Commonwealth, 428 S.E.2d 517, 522 (Va. Ct. App. 1993)). then testified that Hickman admitted that the foregoing statement was false. (Id. at 8:18-19.) V.M. then testified that, contrary to Hickman's assertions, she did not knock the baby carrier onto the floor. (Id. at 18:10-12.)10 Subsequently, Hickman testified that V.M. "had knock [sic] the baby down on the floor" causing him to become "so livid and so mad that that [sic] I had to separate myself from her ...." (Id. at 20:25-21:4.) Hickman stated that he did not tell Officer Livengood that this statement about V.M. was false. Hickman claimed that he merely told Officer Livengood that he did not wish to make the accusation official because he had "another way of dealing with th[e] matter." (Id. at 30:7,15-16.) Having heard this conflictingtestimony, the Circuit Court found that Hickman made a false statementto Officer Livengood and found Hickman guilty. (Id. at 41:23-24.) Thus, contrary to Hickman's assertions, his conviction did notrely solely onOfficer Livengood's testimony regarding Hickman's statement11 and he cannot Whenthe Commonwealth cross examined V.M., the following exchange occurred: [Commonwealth] Did you knockthe baby and the baby carriage to the floor? [V.M.] I did not. [Commonwealth] So when [Hickman] made that statement to the police, it [V.M.] He didn't say that I knocked the carriage. He said that I [Commonwealth] threw the baby to the floor. Okay. Did you throw the baby to the floor? No, I did not. was false? [V.M.] [Commonwealth] So when [Hickman] said you threw the baby to the floor that was false? [V.M.] Yes. (July 7, 2009 Tr. 18:10-21.) Here, V.M.'s assertion that Hickman's accusation against her was false corroborated Officer Livengood's testimony that Hickman contemporaneously admitted the falsity of his accusation to Livengood. Thus, Hickman's conviction did not violate thecorpus delicti rule. SeeDowney, 716 S.E.2d at 475 ('"[W]here the commission of the crime has beenfully confessed by the accused only slight corroborative evidence is necessary to establish the corpus delicti.'" (quoting Morning v. Commonwealth, 561 S.E.2d 23, 25 (Va. Ct. App. 2002)); Morning, 561 S.E.2d at 26 (finding that, where the testimony of a witness confirmed elements of the 8 demonstrate that this issue was '"clearly stronger than those presented.'" Bell, 236 F.3d at 164 (quotingSmith, 528 U.S. at 288); see also Jones, 463 U.S. at 751 (emphasizing that defendants may not compel appellate counsel to argue specific issues on appeal). Accordingly, because Hickman fails to show deficiency, Claim Two (c) will be DISMISSED. IV. CONCLUSION For the foregoing reasons, Respondent's Motion to Dismiss (Docket No. 4) will be GRANTED. Hickman's claims will be DISMISSED and his § 2254 Petition will be DENIED. The action will be DISMISSED. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slackv. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Hickman fails to meet this standard. Accordingly, a certificate of appealability will be DENIED. An appropriate Order shall issue. isL Date:^^ James R. Spencer United States District Judge Richmond, Virginia defendant's confession, sufficientcorroborative evidence existed "to establishthe corpus delicti 'when taken with the evidence of the confession.'" (quoting Claxton v. City ofLynchburg, 421 S.E.2d 891, 893-94 (Va. Ct. App. 1992))).
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