Jordan v. Davis, No. 3:2013cv00735 - Document 27 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/17/15. Copy sent: Yes (tdai, )
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Jordan v. Davis Doc. 27 p IN THE FOR THE UNITED STATES DISTRICT JUL 1 7 2015 COURT HJ EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK . U.S. DISTRICT COURT RICHMOND, VA LAMAR JORDAN, Petitioner, V. Civil Action No. 3:13CV735 KEITH DAVIS, Respondent. MEMORANDUM OPINION Lamar Jordan, proceeding § 2254 pro se, (''§ 2254 a Virginia brings this Petition," state petition ECF No. action. reasons that Jordan, follow, by counsel, Jordan's pursuant 1). recommended that the Court deny the § the prisoner The 2254 filed objections initially to 28 U.S.C. Magistrate Judge Petition and dismiss objections. will be For the overruled and the Motion to Dismiss will be granted. I. The Magistrate REPORT AND Judge RECOMMENDATION made the following findings and recommendations: A. Jordan's Claims Jordan was convicted in the Circuit Court of the County of Henrico ("Circuit Court'') of first degree murder, discharging a firearm from a vehicle, and use of a firearm in the commission of a felony. In his § 2254 Petition, Jordan demands relief upon the following grounds: Dockets.Justia.com The prosecution failed to present sufficient evidence Claim One: to convict Jordan of first degree murder, discharging a firearm from a vehicle, and use of a firearm commission (Mem. Supp. ECF No. Claim Two: of a § 2254 the felony. Pet. 1, 1-1) Counsel rendered assistance counsel move in of failed for a ineffective counsel to because object mistrial on and the ground that the prosecution knowingly used false testimony to obtain a conviction.^ Claim Three Counsel (Id. at 3.) rendered assistance of ineffective counsel because counsel failed to effectively impeach Ataiva Lewis. (Id. at Claim Four: 4 . ) Counsel rendered ineffective assistance by failing for a mistrial prosecutor to move after failed introduce evidence the to referred to in the prosecutor's opening statement. (Id. at 6.) Respondent alia, Jordan's ^ The Court has moved to dismiss claims lack merit. employs the because, inter Jordan has pagination assigned to Memorandum in Support of the § 2254 Petition by the CM/ECF docketing system. Although Jordan labels his claims A through D, the Court labels these same claims One through Four. ''In enjoy Counsel all the for criminal prosecutions, right . . . to have his defence." U.S. the the Const, accused shall Assistance of amend. VI. responded. As explained below, i t is RECOMMENDED that Jordan's claims BE DISMISSED as lacking in merit. B. Applicable Constraints upon Habeas Review 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 The Antiterrorism C'AEDPA") of 1996 States." 28 U.S.C. and Effective Death further circumscribed § 2254(a). Penalty Act 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 adjudicated claim: merits in state court unless the (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; (2) an or resulted in a unreasonable decision that was based on determination in light of the evidence State court proceeding. 28 U.S.C. that the believes but of the state whether that court's determination determination Sufficiency of the Evidence In Claim evidence fired a facts in the § 2254(d). The Supreme Court has emphasized question ''is not whether a federal court was substantially higher threshold." Landrigan, 550 U.S. 465, 473 (2007) V. Taylor, 529 U.S. 362, 410 (2000)). C. the presented One, existed shot to from Jordan convict a vehicle incorrect unreasonable—a Schriro v. (citing Williams Claim One contends him was as that the and insufficient individual killed who Rayvelle Fitzgerald. A federal habeas petition warrants relief on a challenge to the sufficiency of the evidence only if ^'no rational of guilt Virginia, trier of fact could have found proof beyond a reasonable doubt." Jackson v. 443 U.S. 307, 324 (1979). The relevant in conducting such a review is whether, question ''after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential crime beyond a reasonable doubt." Johnson v. critical Louisiana, inquiry on 406 U.S. elements Id. 356, review of the at 319 362 of the (citing (1972)). The sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. at 318. In rejecting this claim on direct appeal, the Court of Appeals of Virginia aptly summarized the evidence of Jordan's guilt as follows: At about Rayvelle gunshot Street 9:00 a.m. Fitzgerald wound to in the Essex on November 1, suffered chest Village, a while a 2008, single on Delmont Henrico County apartment complex. After hearing the shot, Danielle Burwell saw Fitzgerald on the ground beside a white car. Burwell administered CPR upon Fitzgerald until paramedics arrived. Fitzgerald was transported to the hospital, where he was pronounced dead from the gunshot wound. Fitzgerald had been shot with a high velocity bullet that caused extensive internal injuries. Alexia Derricott, Fitzgerald's girlfriend, was with him just before he was shot. Derricott, who had spent the night at Essex Village with her friend lesha McClure, went outside that morning after receiving a telephone call from Fitzgerald. After a conversation with Fitzgerald, Derricott walked in apartment. gunshot, the direction She heard of the McClure's sound then ran toward Fitzgerald, fallen to the appellant and ground. had told of a who had Derricott him about knew her volatile relationship with Fitzgerald. Ataiva Lewis was in her Essex Village apartment between 8:30 a.m. and 9:00 a.m. on November 7, 2008. She looked out her window and saw a man and woman engaged in a loud argument on Delmont Street. A two-door, red car was driving slowly on Delmont Street toward the location where the argument was occurring. The red car stopped, and the driver l i t a cigarette. Lewis saw a long brown object, about two feet in length, across the driver's lap. Lewis turned toward the inside of her apartment, then heard a gunshot. Lewis looked outside again and saw the man who had been arguing on the ground bedside a white car. The red car was gone. Lewis testified that a red, two-door Acura sedan registered to appellant on the day of the shooting looked like the same car she had seen on Delmont Street just before she heard the shot. After the shooting, the police found a single shell casing in the road on Delmont Street. The casing was of the same type that would be a part of a high velocity cartridge fired from an assault weapon such [as] an AK-47 rifle. The length of an AK-47 rifle is between two and four feet. About a week before the shooting, Terron Shackleford saw appellant's red Acura near Essex Village. At the time, an AK-47 rifle was on the backseat of appellant's vehicle, and appellant was driving. Lynette Robinson testified that about a month after Fitzgerald was killed, appellant gave her a ride in his red Acura. Appellant, who was married to Robinson's sister, said the police were looking for his car because he had shot ''a boy" in his car. Appellant said he had meant to shoot him in the leg and did not mean to kill him. Robinson admitted having prior felony convictions. On February 11, 2009, the police questioned appellant regarding the killing. Appellant admitted he was driving his red Acura on Delmont Street in Essex Village on the morning of November 7, 2008, Appellant said he saw Derricott and Fitzgerald on the street. According to appellant, as he approached Derricott and Fitzgerald, he heard the sound of several gunshots. Appellant said he believed several people were shooting at him with automatic weapons. Appellant's cellular telephone records revealed that he placed calls from his phone to McClure's phone just before the shooting. Cell towers in the area of Essex Village transmitted the calls to McClure's phone. Considered as a whole, the evidence proved beyond a reasonable doubt that appellant was the person who fired a weapon from the red vehicle and killed Fitzgerald. A red, two-door vehicle was seen stopped on Delmont Street near Derricott and Fitzgerald just before the shooting. Lewis saw in the lap of the driver of the red vehicle an object that could have been an AK-47 rifle. The bullet that killed Fitzgerald was fired from an assault rifle such as an AK-47. Just a week before the shooting, Shackleford had seen in appellant's car an AK-47 firearm. Appellant acknowledged to the police that he was on Delmont Street on the morning of the shooting and he was driving his red car. Moreover, appellant admitted to Robinson that he had shot someone and the police were looking for his car. Jordan v. App. than Commonwealth, Dec. 8, 2010). sufficient to murder, firing a firearm in the it D. is No. 1221-10-2, at 1-4 (Va. Ct. The foregoing evidence was more convict Jordan of first degree weapon from a vehicle, commission of a and use felony. of a Accordingly, RECOMMENDED that Claim One be DISMISSED. Ineffective Assistance of Counsel 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 Strickland, the the deficient convicted ''^strong presumption' tactics fall ^within performance defendant must that counsel's the wide range prong of overcome the strategy and of reasonable professional assistance.'" Burch v. Corcoran^ 273 F.Sd 577, 588 (4th Cir. 2001) (quoting Strickland; 466 U.S. at 689). The prejudice component requires 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, 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. 1. Claim Two In Claim Two, Jordan faults counsel for failing to object and move for a mistrial on the grounds that the prosecution knowingly permitted Terron Shackleford and Ataiva Lewis to testify falsely at his trial. Jordan contends that Shackleford, a prosecution witness, falsely testified that no promise had been made to him in return for his testimony against Jordan. (Mem. Supp. § 2254 Pet. 4 (citation omitted).) Shackleford promise of No evidence exists that demonstrates lied about the existence of an explicit a reduced sentence in return for his testimony.^ Therefore, counsel reasonably eschewed objecting to Shackleford's testimony on the ground that Shackleford lied when he denied receiving a specific promise in exchange for his testimony. With respect to Lewis, Jordan asserts that Lewis's trial testimony ''changed dramatically from her Grand Jury testimony." (Id. at 3.) Jordan notes. When asked at car when she first trial where saw it, Lewis was the red stated that it was coming down the street and then parked where her balcony was, but she could not see inside the car, like who was driving. (10/14/09, Trial Tr. at 84) . In ^ Shackleford readily admitted, at the time of his testimony, that he was serving a sentence for a couple of felony convictions and that he hoped to have his sentence reduced by testifying. (Oct. 14, 2009 Tr. 232. ) direct contrast, testimony was [Lewis] Grand Jury that she could see inside vehicle and the person driving. the {01/21/09, Grand Jury Trial Tr. at 7). When asked did she see anything in the driver's lap and what was it, Lewis stated that she saw something long and brown, but didn't know what it was. (10/14/09, Trial Tr. at 86) . In direct contrast, [Lewis] Grand Jury testimony was that she seen a gun across the driver's lap. (01/21/09, Grand Jury Tr. at 7). When asked how many shots did she and did she remember the type of car it Lewis testified that she only heard one and she did not remember the type of only that Trial Tr. [Lewis] heard it it was a at 88). Grand shots was a Jury fired red red In car. (10/14/09, direct contrast, testimony from the Acura, at 3-4 (alterations 90's in was that vehicle (01/21/09, Grand Jury Tr. at 7, (Id. hear was, shot car, and type she that model. 12). original) (spelling corrected).) Lewis's trial testimony was vaguer and significantly more favorable to Jordan than her damning grand jury testimony. Moreover, there is no evidence that suggests Lewis testified falsely, much less that the prosecution knew she testified falsely. Therefore, counsel wisely eschewed the objections and the motion Jordan urges here. Accordingly, Jordan fails to demonstrate deficiency or prejudice with respect to Lewis's testimony. It is RECOMMENDED because Jordan prejudice. 2 . fails that to Claim Two demonstrate be DISMISSED deficiency or Claim Three In Claim Three, to Jordan faults counsel for failing cross-examine Lewis with respect to the inconsistencies between her grand jury and trial testimony. As noted above, Lewis's grand jury testimony was significantly more damaging to Jordan than her trial testimony.^ Therefore, counsel reasonably refrained from the cross-examination Jordan urges here. Accordingly, it is RECOMMENDED that Claim Three be DISMISSED because Jordan fails to demonstrate deficiency or prejudice. 3. Claim Four During its opening statement, the prosecution referred to Lewis's testimony about seeing a gun in the lap of the driver of the red Acura and seeing McClure go out onto the balcony of an neighboring apartment. In Claim Four, Jordan asserts that counsel acted deficiently by failing to move for a mistrial when the prosecution subsequently failed to introduce this testimony from Lewis. Because ''an opening statement is an objective summary of evidence the government reasonably expects to produce, a subsequent failure in proof will not necessarily result in a mistrial.'' United States v. Retos, 25 F.3d 1220, 1226 {3d Cir. 1994) {internal quotation marks omitted) {citation omitted). The prosecution reasonably anticipated that Lewis would testify consistently with her grand jury testimony when framing its open argument. That, apparently, failed to occur. Such an omission fails to provide a viable basis for a mistrial. ''Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance. Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given." ^ In addition to Lewis's testimony discussed in Claim Two, Jordan notes that, during her grand jury testimony, Lewis testified that a woman on another balcony (identified by other testimony as lesha McClure) had waived to the driver directed him towards the victim. Pet. 5 {citation this fact declined omitted).) Lewis in her trial testimony. to remind Lewis of of the (Mem. this Acura Supp. failed to and § 2254 recall Counsel reasonably fact because it supported the prosecution's theory that lesha McClure had called Jordan and arranged for him to shoot Fitzgerald. (Oct. 15, 2009 Tr. 389-90.) Frazier v. Cupp, 394 U.S. 731, 736 (1969). The Circuit Court provided such an instruction here.^ Given the foregoing circumstances, counsel reasonably refrained from moving for a mistrial. Instead, counsel chose to emphasize this omission in his closing argument to demonstrate how the Commonwealth ''failed to follow through with their promises" with respect to the evidence. (Oct. 15, 2009 Tr. counsel it 417.) acted As Jordan deficiently i s RECOMMENDED that E. fails or to that demonstrate he Claim Four be was that prejudiced, DISMISSED. Conclusion It is Respondent's RECOMMENDED Motion DISMISS Jordan's that 2254 § to that claims. Petition the be It is Court (ECF Dismiss No. further DENIED and GRANT 13) and RECOMMENDED the action be DISMISSED. (Report and Recommendation entered May 20, 2015 (alterations in original).) II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION "The magistrate makes only a The recommendation has responsibility to make court." 1993) Estrada (citing v. a no final Witkowski, Mathews v. Weber, recommendation to this court. presumptive weight, determination 816 423 F. remains Supp. U.S. and 408, 261, the with this 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings to which objection is made." 28 U.S.C. § or recommendations 636(b)(1). ^ "What the attorneys tell you in opening statement is not evidence. It is just their view on what they feel the evidence will show." (Oct. 14, 2009 Tr. 58.) 10 "The filing of district objections judge to to focus a magistrate's attention on report those enables issues—factual legal—that are at the heart of the parties' dispute." Am, 474 U.S. 140, recommendation, 28 U.S.C. § 147 this (1985). Court his evidence and Thomas v. When reviewing the magistrate's ''may also receive further evidence." 636(b) (1) . III. In the first existed JORDAN'S objection, to support OBJECTIONS Jordan his asserts conviction that insufficient ''because there was not a single witness who identified Jordan as being at the scene of the shooting, as discharging a gun, day." 1.) (Objs. convictions. velocity a.m. Fitzgerald rifle on Ample on November Delmont 7, 2008. rifle in his red Acura. seen in the shooting. shooting. The red Street And, shot Street in and supported killed known in Jordan's with Essex Village Jordan was to a high- around keep 9:00 an AK-47 A red car very similar to Jordan's was car left Ataiva Lewis saw a Jordan admitted to 2008. evidence immediate vicinity of the murder, the length of an AK-47, Delmont was or as having a gun that the area just before immediately long brown object, after the the approximately in the lap of the driver of the red car. police that he was driving his Essex Village on the morning red Acura on of November 7, Jordan told Lynette Robinson that he had shot a boy 11 from his car and that the police were looking for his car. Jordan's first objection to the sufficiency of the evidence will be overruled. In his second objection, prosecution must have the stand. Jordan insists that the knowingly permitted Shackleford to lie on Shackleford readily admitted, at the time of his testimony, that he was serving a sentence for a couple of felony convictions and that he hoped to have his sentence reduced by testifying. denied that sentence denied anyone reduction insists federal (Oct. that had 2009 had in been Tr. made 232.) him exchange because, sentence was he 14, after reduced, Shackleford, an for explicit his Jordan's however, promise testimony. trial, of a Jordan Shackleford's Shackleford must have lied when he promised a sentence reduction. Jordan is wrong. Shackleford was candid about his motives for testifying and evidence no support Jordan's explicitly promised Shackleford a of Jordan's 400-01 omitted) (4th trial. Cir. (internal See (alteration quotation . . . marks [do] that anyone had sentence reduction at the time United States 2004) ''conclusory assertions allegation v. in Roane, original) omitted) not suffice to habeas petitioner to an evidentiary hearing"). objection will be overruled. 12 378 F.3d 382, (citation (concluding . . that . entitle a Jordan's second Finally, third and hearing. Jordan objects that it is premature to dismiss his fourth In claims support without of this conducting objection, an evidentiary Jordan provides a lengthy discourse as to why the state court's rejection of these claims (2). may not warrant deference 28 U.S.C. § 2254(d)(1)- Claims Three and Four lack merit for the reasons stated by the Magistrate Judge. these under claims Even under a de novo standard of review, lack merit. Thus, Jordan fails to persuasive reason for not dismissing his claims. advance any Accordingly, Jordan's final objection will be overruled. Jordan's objections will be overruled. Recommendation will be accepted and adopted. dismissed. The The Report The action will be The Court denies a certificate of appealability. Clerk is directed to send a copy Robert E. Payne of this Memorandum Opinion to counsel of record. It is and so ORDERED. /s/ ^ ^7^ 2-^/ti Richmond,*^ Vi](ginia Senior United States District Judge 13
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