Britt v. Johnson, No. 1:2009cv01205 - Document 18 (E.D. Va. 2010)
Court Description: MEMORANDUM OPINION re 9 MOTION to Dismiss. Signed by District Judge James C. Cacheris on 11/16/2010. (tche)
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Britt v. Johnson Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF \TRGINIA L n\ Alexandria Division NOV | 6 2010 zl Charles Lee Britt, Petitioner, CLERK, U.S. DISTRICT COURT ALEXANDRIA. VIRGINIA l:09cvl205(JCC/JFA) v. Gene Johnson, Respondent. MEMORANDUM OPINION Charles Lee Britt, 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 parole revocation hearing. On April 15,2010, respondent filed a Motion to Dismiss and Rule 5 Answer. Britt was given the opportunityto file responsive materials,pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and has filed a response. For the reasons that follow, Britt's claims must be dismissed. I. Background In two separate cases in the Circuit Court of the City of Norfolk, Virginia, Britt was sentenced to twelve (12) years imprisonment with nine (9) years suspended for possession ofheroin, and thirteen (13) years imprisonment with ten (10) years suspended for possession ofcocaine with intent to distribute as a second offense. Britt was released on probation, but his probation was revoked at a hearing on October 27, 2006 and he was sentenced to serve the remainder of the suspended sentences. Britt appealed this decision, arguing that he had been denied effective assistance ofcounsel at the revocation hearing and that his constitutional rights were violated when Dockets.Justia.com he was sentenced outside of the sentencing guidelines. The Court of Appeals of Virginia denied Britt's appeal on June 29,2007, andthe Supreme Court of Virginia refused the petition for appeal on January 15,2008. Britt filed a petition for writ of habeas corpus in the Circuit Court of the City of Norfolk, arguing thatthe trialcourtdid not properly consider the sentencing guidelines1 andthat his counsel was ineffective for (!) failing to object to the trial court's failure to consider the sentencing guidelines, (2) failing to present certain witnesses, (3) failing to subpoena a probation officer, and (4) failing to prepare a defense. Thecourtdismissed the petition on October 3,2008,2 holding that the claim that the trial court did not properly consider the sentencingguidelines could have been raised at trial and on appeal and thus was procedurally barred from state habeas review, that the petitioner was notentitled to counsel athisprobation revocation hearing, andthat, even ifpetitioner wasentitled to counsel, hisattorneywas not ineffective. The Supreme CourtofVirginiarefusedthe petition on May 13,2009. II. Procedural Bar The SupremeCourt ofVirginia refused Britt's state petition for writ ofhabeas corpus based ona finding ofprocedural default under Slavton v. Parrigan. 205 S.E.2d 680 (Va. 1974) (holding that 'It is unclear whether petitioner intends to assert a claim of trial court error. In an abundance of caution, this Court will consider the claim of trial court errorbecause it was properly exhausted before the state courts. 2In the February 23,2010 Order, this Court noted thatpetitioner's claim for ineffective assistance of counselfor failing to object when the trialjudge did not consider the sentencingguidelineswas treated solely as a claim of trial court error in the state court. However, upon careful additional review ofthe state court records, it is now clear that the circuit court addressed both the claim oftrial judge error and the claim of ineffective assistance of counsel. a claim is procedurallydefaulted if the petitioner could have raised it on direct appeal but did not). A state court's finding of procedural defaultis entitled to a presumption ofcorrectness,provided two foundational requirements are met. See 28 U.S.C. § 2254(d); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir 1988). First, the state court must explicitly rely on the procedural ground to deny petitioner relief. See Ylst v. Nunnemaker. 501 U.S. 797, 802-03 (1991); Harris v. Reed, 489 U.S. 255, 259 (1989). Second, the state procedural rule used to default petitioner's claim must be an independent and adequate state ground for denying relief. See Harris, 489 U.S. at 260; see also Ford v. Georgia, 498 U.S. 411, 423-24 (1991). When these two requirements have been met, federal courtsmay not reviewthe barred claims absent a showing of cause and prejudiceor a fundamental miscarriage ofjustice, such as actual innocence, Harris, 489 U.S. at 260, The Fourth Circuit has consistently held that "the procedural default rule set forth in Slavton constitutes an adequateand independent state law ground fordecision." Mu'minv.Pruett 125F.3d 192, 196-97 (4th Cir. 1997). Britt argues that his attorney's failure to object to the trial judge's failure to consider the sentencing guidelines constituted ineffective assistance of counsel, which could constitute cause for his procedural default. Edwards v. Carpenter. 529 U.S. 446,451 (2000) (noting that an ineffective assistance of counsel claim can serve as cause to excuse a procedural default if the ineffective assistance claim itself was properly presented). However, as will be discussed, Britt cannot relyon the ineffectiveness of his counsel to excuse his procedural default because Britt's ineffective assistance of counsel claims are without merit. III. Standard of Review When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudications are contrary to, or an unreasonable application of, clearly established federal law, or are based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review ofeach standard. See Williams v. Taylor. 529 U.S. 362.412-13 (2000). Astate court determination runs afoul ofthe "contrary to" standard ifit "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question oflaw or ifthe state court decides a case differently than [the United States Supreme] Court has on a set ofmaterially indistinguishable facts." Williams. 529 U.S. at 413. Under the "unreasonable application" clause, the writ should be granted ifthe federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." l<t Importantly, this standard of reasonableness is an objective one. IcL at 410. Moreover, in evaluating whether a state court's determination ofthe facts is unreasonable, a federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts *the presumption of correctness by clear and convincing evidence.'" Miller-El v. Dretke. 545 U.S. 231,240 (2005) (quoting 28 U.S.C. 2254(e)(1)); see, e^, Lenz v. Washington, 444 F.3d 295,300-01 (4th Cir. 2006). IV. Analysis Britt alleges that his counsel (1) failed to object to the trial court's failure to consider the sentencing guidelines, (2) failed to present certain witnesses, (3) failed to subpoena a probation officer, and (4) failed to prepare a defense. To prevail, Britt must first show that he was entitled to the assistance ofcounsel at his probation revocation proceeding. See Gagnonv. Scarpelli.411 U.S. 778,782 (1973) (holding that a probationer is entitled to a revocation hearing, but that due process does not require the appointment of counsel for that hearing unless counsel would be necessary to ensure fundamental fairness); see also Wainwright v. Torna. 455 U.S. 586, 587-88 (1982) (noting that one can only prevail on a claim of ineffective assistance ofcounsel in a habeas proceeding ifhe had a constitutional right to counsel in the underlying proceeding). Britt must then show that his counsel was ineffective. A. Right to Counsel at Probation Revocation Hearing Counsel should be providedat a revocation hearing ifthe probationer makes a "timely and colorable claim (i)that he has not committed the alleged violation ofthe conditions upon whichhe is at liberty; or (ii) that, even ifthe violation is a matterof public record or is uncontested, there are substantial reasons whichjustifiedormitigated theviolation andmake revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present." Gaenon. 411 U.S. at 790. The probationer's abilityto speak effectively for himselfis also considered. Id. at 791. Under this standard, Britt has not demonstrated that he was entitled to counsel at his revocation hearing. The probation violation report thatwas admitted atBritt'srevocation hearing stated thatBritt hadviolated the terms ofhisprobation byfailing to maintain regular employment, failing to follow the probation officer's instructions and report as requested, and testing positive for controlled substances. SeeMem, in Support ofPet. for Habeas Corpus 1-3, ECFNo.2-6. Britt argues that he was constitutionally entitled tocounsel athis revocation proceedingbecausehehadmade timely and colorable claims (1) thathe had not violated the conditions of his probation that required him to maintain employment and to follow the Instructions of counsel, which included completing a drug program, and (2) that he had substantial reasons which mitigated his admitted violation of the condition that prohibited the use ofcontrolledsubstances, which made revocationinappropriate, and that those reasons were complex and difficult to develop or present. In support of these arguments, Britt explains that his position with Norfolk State University satisfied the condition that Britt maintain employment, and that his completion of the "Freedom Within" Program satisfied the condition that Britt comply with the instructions of his probation officer, which included a requirement to completea drug rehabilitation program. Britt further explainsthat his efforts to stay drug-free and his participation in adrugevaluation program werecomplex andsubstantial mitigating reasons mat made revocation inappropriate. Upon review of Britt's state habeas petition, the Circuit Court for the City ofNorfolk held that Britt was notentitled to counsel at his probation revocationhearingunder the Gagnon standard. See Mem. in Support ofPet. for Habeas Corpus 2, ECF No. 2-3, The circuit court's order does not explain the basis for its decision, but its holding must be based on findings that Britt's claims were not colorable as thereis no indicationin the record thathis claims were untimely. The circuitcourt's citation to Gagnon and the facts that were presented to the court together establish that its decision was not contrary to, or an unreasonable application of, clearly established federal law, nor was its decision based on an unreasonable determination of the facts. 1. Britt's Claims That He Had Not Violated the Conditions of Probation The circuit court's conclusion that Britt had not presented a colorable claim that he had not violated the conditions of his probation was not contrary to, or an unreasonable application of, federal law because it fits within decisions reached by the United States Supreme Court on this questionof law in cases with similar facts. Williams. 529U.S, at 413, The fact that anindividual has admitted to committing another serious crime "creates the very sort ofsituation in which counsel need not ordinarilybe provided." See Gagnon. 411 U.S. at 791. In this case, Britt admitted that he had no employment during the summer months in his direct appeal ofthe revocationhearing to the Supreme CourtofVirginia, when he stated that he had "employment at Norfolk StateUniversity, which would have resumed at the beginning of a new school year," See Pet for Appeal 8, ECF 10-2. Britt's admission that his employment "would have resumed" is tantamount to an admission that he had not maintained employment during the summer months as required. At the revocation hearing Britt also admitted that he had tested positive for controlled substances, and he has not provided any evidence that he has completed a drug program while under supervision. An individual who has admitted to violating conditions of his probation is similar to an individual who has admitted to committing anotherserious crime in that neither individual will need the aid ofcounsel to present evidence to contest the facts presented at the hearing. Thus, the circuit court's holding in the state habeas proceeding that Britt had not made a colorable claim that he had not violated the conditions ofhis probation was not contraryto, or an unreasonableapplication of, federal law becauseBritt had actually admitted to the violations. Moreover, the circuit court's conclusion that Britt failed to make a colorable claim that he had not violated the conditions ofhis probation was not based on an unreasonable determination of the facts. Williams. 529 U.S. at 413. Britt argues that he had made a timely and colorable claim thathe hadnot violatedtheconditions ofprobation relating to maintaining regular employment and following the probation officer's instructions, which included a requirement to complete a drug program. See Mem. in Support of Pet. for Habeas Corpus 8, ECF No. 2. To support these allegations, Britt supplied an earnings statement showing Britt had worked through May 19, 2006 and a certificate ofcompletion ofthe "Freedom Within" Program in October of 2000, See Mem, in Support of Pet. for Habeas Corpus 12-13, ECF No. 2-1. However, this evidence does not contradict the statements in the probation violation report, wherein the probation officer states that Britt's supervision start date was June 14, 2005 and recognizes that Britt had been employed by Norfolk State University up until Mayof 2006. Though Brittmaintains that he never left his position with the university, the report states that "Britt was continually told he must maintain employment or submit paperwork that he was actively seeking employment" and that "Britt had no verifiable employment after May 2006." Further, Britt's completion of the "Freedom Within" Program in October of2000doesnotrefutetheprobationofficer's reportindicatingthat Britthadfailedto attend a drug rehabilitation program while under supervision, which began on June 14,2005. Based on these facts, it is evident that Britt has failed to rebut the presumption of correctness of the circuit court's determination ofthe facts by clear and convincing evidence. Therefore, the circuitcourt's rejection of Britt's claim that he had not violated the conditions of probation was not based on an unreasonable determination of the facts. 2. Britt's Claims That He Had Mitigating Reasons for the Violations Although Britt admitted that he had tested positive for control led substances at the revocation hearing, he argues that he had made a timely and colorable claim of"justification and mitigating reasons"for this violation. See Mem. in Supportof Pet. for Habeas Corpus 12,ECF No. 2. Britt's 8 apparent mitigating reasons for the violation are that he had been ''making substantial efforts to stay drug free," id at 10, and that he had been participating in a drug evaluation program that may have provided false positives on drug tests. See Pet. for Appeal 8, ECF 10-2. The circuitcourt's conclusion that Britt was not entitled to counsel to present these mitigating reasons at his revocation hearing was in line with the Supreme Court's decisions on this issue and therefore, the conclusion was not contrary to, or an unreasonable application of, federal law. Counsel is not constitutionallyrequired at a revocation hearing even ifthe probationerhas mitigating reasons for his violation as long as the reasons are not too complex for the probationer to present himself. Gagnon. 411 U.S. at 790. While counsel may be necessary to present reasons that "require[] the examining or cross-examining of witnesses or the offering or dissecting ofcomplex documentary evidence," counsel will likely not be required when the mitigating evidence is "so simple as not to require either investigation or exposition by counsel." Id. at 787. The facts that Britt wanted the court to consider as mitigating reasons for his violation were not complex and were actually presented at his revocation hearing, during which Britt submitted a letter from a physician relating to the drug evaluation program and testified about his efforts to remain drug-free. Thus, they were not the type of reasons that would normally require the appointment of counsel, especially because Britt was demonstrably capable of presenting these reasons himself. Because the circuit court's conclusion fits within the Supreme Court's reasoning in Gagnon. it was not contrary to, or an unreasonable application of, federal law. Further, the circuit court's finding that Britt's mitigating reasons for the violation of the condition prohibiting the use ofcontrolled substances were either not colorable or not too complex for Britt to present himselfwas not based on an unreasonable determination of the facts. Britt was actually able to present these mitigating reasons for his violation to the court at his revocation hearing by submitting the letter from the physician and testifying himself, and he has again demonstrated his ability to present those reasons in the instant petition. Clearly, the circuit court's decision that Britt was not entitled to counsel at his revocation hearing was not contrary to, or an unreasonable application of, federal law, nor was it based on an unreasonable determination ofthe facts. Thus, Britt's federal petition for a writ of habeas corpus must be dismissed. B. Ineffective Assistance of Counsel Even if Britt had been entitled to the appointment of counsel, he would not succeed on his claims of ineffective assistance of counsel unless he showed that (1) "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionallycompetentassistance." Strickland v. Washington, 466 U.S. 668,690 (1984) (defining ineffective assistance of counsel as falling below an objective standard of reasonableness and applying a strong presumption ofcompetence and deference to attorney judgment), and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "The petitioner must show both deficient performance and prejudice; the two are separate and distinct elements of an ineffective assistance claim." Spencer v. Murray. 18 F.3d 229, 232-33 (4th Cir. 1994). Moreover, a court does not need to review the reasonableness ofcounsel's performance if petitioner fails to show prejudice. Ouesinberrv v. Taylor. 162 F.3d 273,278 (4th Cir. 1998), With respect to the firstprong ofthe Stricklandtest, "[j]udicial scrutiny ofcounsel's performance must 10 be highly deferential" Strickland. 466 U.S. at 689, and thecourt must "presume that challenged acts are likely the result of sound trial strategy." Spencer. 18 F,3d at 233. With respect to the second prong of the Strickland test, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland. 466 U.S. at 694. In order to undermine confidence in the trial outcome, petitioner must show more than a remote possibility that the results ofthe trial would have been different. Washington v. Murray. 4 F,3d 1285,1290 (4th Cir. 1993). Brittcontendsthat his attorneyprovided ineffective assistance when he failed to object to the trial court's failure to consider the sentencing guidelines, failed to present certain witnesses, failed to subpoena a probation officer, and failed to prepare a defense. Specifically, Britt states that his attorneydid not objectto the sentence imposed although itwas significantly longer than the sentence recommendedunder theguidelines, "advised Britt to plead guiltyto all aspects ofthe violationreport and 'accept responsibility' for every allegation made," and refused to follow Britt's directions to call certain witnesses. See Mem. in Support ofPet. for Habeas Corpus 11, ECF No. 2, Britthas failed to demonstrate that his attorney's actions and omissions causedprejudicein hiscase. NothinginBritt's petitionindicates thatthesewitnesses wouldhaveprovided anyevidence that would have had a probability of changing the outcome of the revocation hearing such that it is sufficient to undermine confidence in that outcome. One of the witnesses, Mr. Carl Brockett, would have testified that Britt completed the "Freedom Within" Program on October 10,2000, but as previously noted, this evidence would not have undermined the conclusion that Britt had failed to complete a drug program after he was put under supervision in 2005. The second witness that Britt wanted his attorney to contact was Ms. Kerry, his supervisor from Norfolk State University, 11 who allegedly would have testified that Britt "had employment." However, as noted in the violation report, Britt's probationofficer had instructed Britt to find employment during the months when the university was not in session, and Ms. Kerry's testimonywould not have undermined the conclusion that Britt had not followed the probation officer's instructions to submit proof that he had either found another position for that time period or was unable to work. Finally, Britt argues that his attorney should have subpoenaed the probation officer and questioned him as a witness at the revocation hearing. The fact that the violation report was completed by the same probation officer that Britt asked his attorney to subpoena indicates that there was little likelihoodthat his testimonywould have underminedthe conclusions that thecourt reached basedon that report. The probation officer's statement in the report that Britt had been "as blatantly dishonest and manipulative as anyone supervised in close to 30 years" would have given Britt's attorney ample reason not to subpoena that officer as a matter ofstrategy because there patently was no reason to believe that the officer's testimony would have been positive or helpful to Britt. Under the deferential Strickland standard of review, this Court must presume that Britt's attorney had decided not to call these witnesses as a matter oftrial strategy. It is well established in federal jurisprudence that '"[cjounsel's strategic choices made after thorough investigation ... are virtuallyunchallengeable....'" Grayv. Branker. 529 F.3d220,229 (4th Cir. 20081. cert, denied. 129 S. Ct. 1579 (2009) (quoting Strickland. 446 U.S. at 690-91). In particular, decisions concerning the calling of witnesses are matters of strategy left to the attorney, and ordinarily cannot constitute ineffective assistance. Jones v. Taylor, 547 F.2d 808 (4th Cir. 1977). Although ultimately unsuccessful, it was not unreasonable for the circuit court to conclude that Britt had not overcome 12 the strong presumption that these actions were part ofa sound trial strategy. Therefore, because Britt has not demonstrated that the Supreme Court of Virginia's rejection of the ineffective assistance claims was contrary to, or an unreasonable application of, clearly established federal law, the claims must be dismissed. Additionally, because Britt has thus failed to demonstrate cause and prejudice for the procedural default ofhis claim of trial court error, it must be dismissed. V. Conclusion For the above stated reasons, this petition will be dismissed. An appropriate Order shall issue. Entered this / W day of / 2010. /s/ James C. Cacheris United States District Judge Alexandria, Virginia 13
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