Bennett v. Warden

MITCHELL BENNETT, Petitioner, v. WARDEN, Respondent.

Civil Action No. 7:20cv00198

United States District Court, W.D. Virginia, Roanoke Division

August 3, 2021

MEMORANDUM OPINION

Michael F. Urbanski Chief U.S. District Judge

Mitchell Bennett, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, challenging his 2017 Amherst County Circuit Court conviction for third offense distribution of controlled substances. The matter is before the court on respondent's motion to dismiss. After reviewing the record, the court concludes that respondent's motion must be granted for the reasons stated below.

I.

On August 9, 2016, an Amherst County grand jury indicted Bennett on two counts of third-offense distribution of Schedule II controlled substances, in violation of Virginia Code § 18.2-248. Both charges arose from sales to a confidential informant (CI) that were at least partially recorded on video and separate audio, after the telephone calls scheduling the sales were audio recorded. Before trial, the CI died. Following the CI's death, defense counsel moved to exclude all video and audio recordings on the grounds that admission would deny Bennett his right to confront and cross-examine his accusers, as guaranteed by the Sixth Amendment to the United States Constitution. After consideration of the motion, the trial court admitted the silent video recordings of the transactions and the audio recordings of the transactions and phone calls between the CI and Bennett; however, the trial court excluded audio recordings of law enforcement debriefing the CI after the undercover purchases. Trial Tr. 97-102, Jan. 6, 2017.

Immediately following the motion hearing, the trial court tried the case without a jury and found Bennett guilty of third offense distribution on April 28, 2016, but acquitted him of the charges on the second indictment, alleged to have occurred on May 12, 2016. Trial Tr. 172-174. In the light most favorable to the Commonwealth, the prevailing party, the evidence at trial established the following: On April 28, 2016, the CI placed a monitored and recorded telephone call to someone that the investigators recognized by voice to be Bennett. The CI said he had money and wanted to buy two “funny sticks” and “a whole three and a half.” Investigator Hurt testified, based on his training and experience, that “funny sticks” were tobacco cigarettes dipped in PCP and “three and a half” meant 3.5 grams of crack cocaine. Trial Tr. 112-113. The CI asked where to meet Bennett, and Bennett replied that he would talk to the CI in five or ten minutes to finalize the location.

Investigators searched the CI and his motorcycle to make sure that he had no money or drugs in his possession, other than the $270 they provided him for the pending transaction. The officers also fitted the CI with a wire for live feed audio. Trial Tr 113-115. Following the second phone call between Bennett and the CI, the investigators followed the CI to Cedar Crest Apartments, keeping the CI in sight the whole time, except when he went into the apartment complex. Once they reached the apartment complex, the investigators remained at the complex entrance, while the CI went towards the apartment. The audio feed had been engaged from the moment it was placed on the CI. Trial Tr. 36-39. As the CI approached the apartment, investigators remotely activated the video function as well, which recorded and stored events without sound, while the sound was transmitted live to the investigators and separately recorded. Trial Tr. 42, 45. Once the CI returned to his motorcycle and left the complex, the officers followed him to a nearby Food Lion, where the CI turned over two items that he did not have previously, a sandwich bag with a chunky substance that field tested positive for cocaine and another baggie with two discolored cigarettes. Trial Tr. 119-120. The officers searched the CI again, and he no longer had the money, nor did he have any drugs other than those he turned over to the investigator.

The video introduced in court showed the CI and Bennett meeting. The video also showed that Bennett had two plastic baggies in his hand, with something in them, while he was with the CI, and the video showed Bennett holding two discolored cigarettes. A woman was in the living room very briefly at the beginning of the video, but otherwise, the only people on the video were the CI and Bennett. The video also showed a television set that was operating while the CI was present. The audio recording contained the voice of the CI and Bennett. Additional voices could be heard in the background, but since no other people were visible on the video around the CI and Bennett, the court concluded that the voices may have come another room or from the television.

Jacob Easter, a scientist at the Department of Forensic Science, testified that he examined both the cigarettes and the chunky substance submitted to the lab by investigators. His analysis confirmed that the cigarettes had PCP in them, and the other substance was 1.8 grams of cocaine. Trial Tr. 142-145.

Bennett obtained new counsel before the sentencing hearing, and counsel filed a motion to set aside the conviction on the grounds that the video had not been and could not be properly authenticated without the CI's testimony. The trial court denied the motion, finding that it was untimely; further, however, the court noted that he would have denied the motion anyway, because the video was sufficiently authenticated. Sent. Tr. 23-24, July 14, 2017. Following consideration of a presentence report and arguments of counsel, the court then sentenced Bennett to twenty years in prison, suspending all but the mandatory minimum ten years, conditioned on two years of supervised probation upon release and twenty years of good behavior from the date of sentencing. Sent. Order, Gov. Ex. 1, ECF No. 14-1.

Bennett appealed his conviction, challenging the sufficiency of the evidence and the admission of the video and audio evidence. The Court of Appeals of Virginia affirmed his conviction and sentence on November 20, 2018. Bennett v. Commonwealth, 69 Va.App. 475, 496, 820 S.E.2d 390, 400 (2018). Bennett's petition for appeal to the Supreme Court of Virginia was refused on June 28, 2019. Gov. Ex. 3, ECF No. 14-3. No petition for certiorari was filed in the United States Supreme Court.

On June 18, 2019, Bennett filed a petition for habeas corpus in the Amherst County Circuit Court, alleging ineffective assistance of trial counsel, specifically that counsel was ineffective in:

1. Failing to file a motion to suppress Bennett's arrest as unsupported by cause;

2. Failing to challenge the admission of the video on authenticity grounds; and

3. Failing to challenge the admission of the video on hearsay grounds.

By order dated August 19, 2019, the court dismissed the habeas claim. Bennett did not appeal to the Supreme Court of Virginia.

On April 3, 2020, Bennett filed the current petition, alleging the following grounds for relief:

1. Bennett's constitutional right to confront and cross-examine his accuser was denied;

2. Chain of custody was insufficient without CI's testimony;

3. The evidence was constitutionally insufficient to support his conviction; and

4. Ineffective assistance of trial counsel in:

a. Failing to raise hearsay and authentication objections to the video before trial;

b. Making no objections during trial;

c. Calling no witnesses for the defense;

d. Waiting until “only weeks before trial” to prepare his case; and

e. Trying to get him to take a plea deal instead of fighting the case.

II.

A federal court may grant a petitioner habeas relief from a state court judgment “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal courts reviewing constitutional claims properly adjudicated on the merits in state court may grant relief on such a claim only if the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A federal district court reviewing a § 2254 petition is also limited by the separate but related doctrines of exhaustion, procedural default, and independent and adequate state law grounds. The standard of review and these procedural doctrines promote the principles of finality, comity, and federalism, recognizing a state's legitimate interests in enforcing its laws, preventing disruption of state judicial proceedings, and allowing states the first opportunity to address and correct alleged violations of a state prisoner's federal rights. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). When reviewing a state court's assessment of an ineffective assistance of counsel claim, federal review is “doubly deferential, ” because the deferential standard of review under the statute overlaps with the deferential standard under Strickland v. Washington, 466 U.S. 668 (1984). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In other words, the federal court is to afford “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013).

Turning first to the procedural limitations, Bennett's petition is timely filed with the court. However, he has issues with exhaustion and procedural default on some of his claims.

A. Exhaustion

A habeas petitioner is required to exhaust his claims in state court before his claims can be considered in federal court. 28 U.S.C. § 2254(b)(...