Baylor v. Clarke

Alphonso D. Baylor, Petitioner, v. Harold W. Clarke,¹Respondent.

1:10cv1206 (AJT/TCB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Dated: June 17, 2011

Respondent.

MEMORANDUM OPINION

Alphonso D. Baylor, 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 conviction of firearms offenses in the Circuit Court for the City of Portsmouth, Virginia. On February 4, 2011, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Baylor was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he filed a reply with additional exhibits on February 18,2011. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed. Contained with petitioner's reply is a request for an evidentiary hearing, which will be denied.

I. Background

On June 26,2006, following a bench trial, Baylor was convicted of possession of a firearm by a convicted felon and discharging a firearm in a public place. Case No. CR06000791,CR06000792. The underlying facts were described by the Virginia Court of Appeals as follow:

Jackie Williams lived across the street from appellant's mother's house for over thirty years. Appellant lived there with his mother. Williams testified that he was on his front porch one evening when he saw appellant arguing with Tamelia, appellant's girlfriend, in the front yard. Williams heard Tamelia call out appellant's first name, Alphonso. Williams then heard a gunshot and saw a muzzle flash beside Tamelia's car. Appellant was standing outside the car while Tamelia and two other girls were sitting inside the car. The two girls got out of the car and ran across the street screaming. Tamelia sped away. Williams invited the two girls into his house where they called the police. Tamelia returned about five minutes later. Appellant again fired a gun in her direction, and she drove away. It was dark outside, Williams explained, but there was a streetlight on the comer and he could see that it was appellant shooting the gun. Williams was about 100 feet away from appellant.

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Appellant testified on his own behalf that he was not there that evening. He has a twin brother, he explained, and it must have been his twin who was shooting. Upon recall, Williams testified that he knew appellant had a twin brother but was sure appellant was the man firing the gun that night.

Baylor v. Commonwealth, R. No. 2162-06-1 (Va. Ct. App. Apr. 4, 2007), slip op. at 1 - 2. On August 28, 2006, Baylor was sentenced to serve five years and ten months in prison. Resp. Ex. A.

Baylor appealed his conviction to the Virginia Court of Appeals, arguing that the evidence was insufficient to prove that he was the person who possessed the firearm. By final order entered April 4, 2007, the petition for appeal was denied. Baylor v. Commonwealth, supra. Baylor sought review of that decision by the Supreme Court of Virginia, but his petition for appeal was refused. Baylor v. Commonwealth, R. No. 070793 (Va. Aug. 17, 2007).

Baylor next submitted a petition for a state writ of habeas corpus to the Circuit Court for the City of Portsmouth, raising the following claims:

1. The judgment for the misdemeanor of discharging a firearm in public is void because the record does not show that he waived his right to a jury trial with the concurrence of the Commonwealth's Attorney and the court.

2. He received ineffective assistance of trial counsel where his attorney:

a. failed to object to Jackie Williams' hearsay identification of him as the shooter;

b. failed to object to a police officer's testimonial hearsay identification of him as the shooter;

c. failed to impeach Jackie Williams with a prior inconsistent statement; and

d. had an actual conflict of interest.

3. He received ineffective assistance of appellate counsel where the issue of the void misdemeanor judgment was not assigned as error.

By Final Order entered July 24, 2009, Baylor's state habeas application was denied and dismissed with prejudice. Resp. Ex. D. Baylor sought review of that result by the Supreme Court of Virginia, which found no reversible error and refused the petition for appeal. Baylor v. Dir., Dep't of Corrections, R. No. 100689 (Va. Oct. 15, 2010); Resp. Ex. F.

Baylor timely filed the instant federal petition on October 19, 2010,² reiterating claims 2 and3 of the claims he raised in the state habeas proceeding, as listed above. Respondent has filed a Rule 5 Answer and a Motion to Dismiss, along with the notice required by Roseboro, 528 F.2d at 309, and petitioner has filed a reply with exhibits. Based on the pleadings and record before this Court, it is uncontested that Baylor has exhausted his present claims in the state forum, as required under 28 U.S.C. § 2254.³ Accordingly, this matter is now ripe for review.

II. 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 adjudication is contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisionsbut unreasonably applies that principle to the facts of the prisoner's case." Id. Importantly, this standard of reasonableness is an objective one. Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court decision that previously addressed the claims rather than the petitioner's free-standing claims themselves." McLee v. Angelone, 967 F.Supp. 152, 156 (E.D. Va. 19971 appeal dismissed, 139 F.3d 891 (4th Cir. 1998) (table).

III. Analysis

In his first federal claim, Baylor argues that he received ineffective assistance of trial counsel for several reasons. To establish ineffective assistance of counsel, a petitioner must show that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defendant." Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's performance was deficient, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness" id. at 688, and that the "acts and omissions" of counsel were, in light of all the circumstances, "outside the range of professionally competent assistance." Id. at 690. Such a determination "must be highly deferential," with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also. Burket v. Angelone. 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court "must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis"); Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994) (court must "presume that challenged acts are likely the result of sound trial strategy.").

To satisfy Strickland's prejudice prong, a "defendant must show that there is 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 a probability sufficient to undermine confidence in the outcome." Id.; accord. Lovitt v. True. 403 F.3d 171, 181 (4th Cir.2005). 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 errors of constitutional dimension." Murray v. Carrier, 477 U.S. 478, 494 (1986) (citations omitted, emphasis original). The two prongs of the Strickland test are "separate and distinct elements of an ineffective assistance claim," and a successful petition "must show both deficient performance and prejudice." Spencer, 18 F.3d at 233. Therefore, a court need not review the reasonableness of counsel's performance if a petitioner fails to show prejudice. Ouesinberry v. Tavlore, 162 F.3d 273, 278 (4th Cir. 1998).

In the first subclaim of claim one, Baylor contends that he received ineffective assistance of trial counsel when his attorney failed to object to Jackie Williams' hearsay identification of him as the shooter. When this same claim was presented to the Virginia Court of Appeals, it was rejected on the following holding:

In claim (b)(1) Baylor alleges his trial counsel was ineffective for failing to object to Jackie Williams's 'hearsay identification' of Baylor as the shooter. The Court finds that the record does not support this allegation. Jackie Williams testified that he saw Baylor, who had been his neighbor for a substantial period of time, fire shots at Baylor's girlfriend. On cross-examination, Williams was asked about his identification of the shooter and he testified: 'Well, I knew it was Alphonso, but after she hollered Alphonso's name, that was a positive I.D." Williams was an eye-witness to the shooting; therefore, his testimony was not hearsay. Under these circumstances, his counsel was not ineffective for failing

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