Prince v. Clarke

ROBERT LINWOOD PRINCE, Petitioner, v. HAROLD W. CLARKE, Director,Virginia Department of Corrections, Respondent.

CIVIL ACTION NO. 2:17cv233

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

July 12, 2018

REPORT AND RECOMMENDATION

This matter is before the Court on Petitioner Robert Linwood Prince's ("Petitioner") pro se Petition for a Writ of Habeas Corpus ("the Petition") filed pursuant to 28 U.S.C. § 2254, ECF No. 1, and Respondent Harold W. Clarke's ("the Respondent") Motion to Dismiss, ECF No. 9. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. The undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that the Respondent's Motion to Dismiss, ECF No. 9, be GRANTED, and the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the Circuit Court for Prince George's County, Virginia ("the Trial Court"), following a bench trial, Petitioner was convicted of three counts of distribution of a controlled substance. At all times leading up to trial, at trial, at sentencing, and on direct appeal, Petitioner was represented by Amanda Nicole Mann, Esquire ("Trial Counsel"). ECF No. 1 at 13. On or about May 5, 2014, Petitioner was sentenced to sixty years of imprisonment with fifty-one years suspended. ECF No. 1 at 1; ECF No. 11, attach. 2. The factual findings of the Court of Appeals of Virginia provides the following summary of the evidence presented at trial:

Sergeant Noel Watson, of the Prince George County Police Department, testified that on November 26, November 27, and December 3 of 2012, he arranged with a confidential informant to engage in a series of controlled drug transactions from appellant. On November 26, 2012, the confidential informant called appellant on the phone and arranged to buy eighty dollars' worth of cocaine. The two agreed to meet near the Farmer's Foods in Crossings Shopping Center. Because the confidential informant was wired with a microphone, Sergeant Watson was able to hear appellant's voice on the phone. When the Commonwealth played the audio recording of the phone call and asked Sergeant Watson if it was "the defendant's voice on the audio," Sergeant Watson replied, "Sounds like it, yes." Later, the trial court asked Sergeant Watson if the voice he heard on the phone recordings matched the voice he heard during the transactions. In response, Sergeant Watson replied, "Sounds like it to me, Your Honor. Yes."

Before going to Farmer's Foods, Sergeant Watson searched the confidential informant for drugs, contraband, and money, and did not uncover anything that the confidential informant was not supposed to have.¹ Appellant, who was a passenger in a vehicle, was already at the Farmer's Foods store when Sergeant Watson and the confidential informant arrived on November 26, 2012. Sergeant Watson, who was "approximately seventy yards" from the vehicle, testified that he saw the confidential informant walk up to the vehicle and that the confidential informant got into the vehicle. According to Sergeant Watson, nobody came into contact with the confidential informant between the time Sergeant Watson searched her and the time she went into the vehicle. The confidential informant was in the vehicle for "[a] couple of minutes," and did not encounter anybody on her way back from the vehicle to Sergeant Watson. Sergeant Watson testified that "except for when she sat down in the vehicle, I didn't lose sight of her." Duringthe transaction inside the vehicle, which Sergeant Watson could hear via the confidential informant's audio wire, the driver of the vehicle left the vehicle and went inside of a nearby business.² When the confidential informant returned to Sergeant Watson, Sergeant Watson searched her again and recovered drugs. Sergeant Watson then submitted them to the lab for analysis. The drugs and the certificate of analysis indicating that the drugs were cocaine were admitted into evidence over appellant's objection on chain of custody grounds.

¹ On cross-examination, Sergeant Watson testified that a search would take "anywhere from forty seconds to a minute." Sergeant Watson did not search the inside of the confidential informant's underwear or inside of her socks or shoes.

² Sergeant Watson observed only two people - appellant and the driver - in the vehicle. He acknowledged, "If there was somebody in the backseat lying down, I wouldn't have been able to tell."

The next day, on November 27, 2012, the same confidential informant once again arranged via phone to buy eighty dollars' worth of cocaine from appellant. The confidential informant dialed the same phone number as she had the day before. Sergeant Watson testified that the voice on the phone on November 27, 2012 was the same as the voice that was on the phone on the previous day. Appellant and the confidential informant agreed to meet near the Beauty World at the Crossings Shopping Center. Just like he did on the previous day, Sergeant Watson searched the confidential informant for drugs, contraband, and money prior to the controlled drug transaction. The search did not yield anything. This second controlled drug transaction also took place in a vehicle, and lasted "only a few minutes at the most." During this transaction, appellant was in the vehicle with an unknown male. Sergeant Watson was about sixty yards from the vehicle and could not see the facial features of the individuals in the vehicle. Sergeant Watson searched the confidential informant after the completion of the transaction and found drugs on her person. After the transaction, the confidential informant did not have the eighty dollars in police department money on her person. The confidential informant gave the drugs to Sergeant Watson, who then packaged them and took them to the lab for analysis. The certificate of analysis, which was admitted into evidence, indicated that the drugs were cocaine. Appellant did not raise any specific objections to the admission of this second certificate of analysis or the corresponding drugs. [Footnote omitted.] Sergeant Watson testified that he never lost sight of the confidential informant before she returned to him.

Finally, on December 3, 2012, the same confidential informant arranged via telephone to buy forty dollars' worth of cocaine from appellant. The phone number that the confidential informant dialed was the same as the number she dialed on the previous two occasions. When the Commonwealth played the recording of that phone call at trial, Sergeant Watson confirmed that the voice on the other end was the same as the voice from the previous two phone calls. Prior to the third transaction, when the confidential informant and appellant were arranging to meet, the two agreed to meet "where they usually meet." The transaction again occurred at the Crossings Shopping Center. Just as he did for the other two transactions, Sergeant Watson searched the confidential informant for money, contraband, and drugs prior to and after the controlled drug transaction. The search prior to the transaction did not yield anything. This third transaction was video recorded, and Sergeant Watson twice was able to see appellant's face through the video. According to Sergeant Watson, appellant was ten feet from Sergeant Watson's vehicle when Sergeant Watson saw him leaving the scene. It appears from the record that the third transaction was also conducted in a vehicle. According to Sergeant Watson, on this third occasion, when the vehicle arrived, there were two people in the vehicle, including appellant. The confidential informant did not interact with anybody on her way to the vehicle and returned to Sergeant Watson after the transaction was complete. After the transaction, the confidential informant no longer had forty dollars' worth of police department funds on her person, but did have drugs - this time packaged in a cigarette box - on her person. The confidential informant turned the drugs over to Sergeant Watson, who then packaged them and submitted them to the lab for analysis. The drugs and the associated certificate of analysis, which indicated that the confidential had received cocaine, were admitted into evidence at trial. Appellant did not make any objection.

After Sergeant Watson testified as to the three controlled drug transactions, the Commonwealth asked that appellant read the following words: "Now is the time for all good men to come to the aid of their country." Appellant read those words aloud three times at the direction of the Commonwealth. When the Commonwealth asked Sergeant Watson if the voice of appellant was the voice he heard on any of the three phone calls, Sergeant Watson replied, "Sometimes it sounded like it. A couple of the words sounded like his voice." Sergeant Watson added that he had heard appellant speaking with his attorney the day of the trial, and that appellant's voice, when speaking aloud with his attorney, matched the voice Sergeant Watson heard on the phone each time. The trial court found that appellant disguised his voice while reading aloud in court, and stated, "He is clearly disguising his voice. I can't ignore that fact."

Sergeant Watson testified that the license plate number on the vehicle involved in all three of the transactions was the same license plate number each time. According to Sergeant Watson, that vehicle is not registered to appellant, but is registered to an individual with the same last name as appellant. Sergeant Watson conceded that he did

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