Roberts v. Clarke

Norman Michael Roberts, Petitioner, v. Harold Clarke, Respondent.

1:20cv1011 (LO/MSN)

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

May 10, 2021

MEMORANDUM OPINION

Norman Michael Roberts ("Roberts" or "petitioner"), a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his August 26, 2016 convictions for manufacturing methamphetamine and conspiracy to manufacture methamphetamine in the Circuit Court of Spotsylvania County. [Dkt. No. 1]. The respondent has filed a Rule 5 Answer and a Motion to Dismiss, with supporting briefs and exhibits. [Dkt. No. 10, 11]. On November 2, 2020, the petitioner was given the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K) to the motion to dismiss and Roberts has responded. [Dkt. No. 17]. Accordingly, this matter is now ripe for disposition. For the reasons that follow, the Court has determined that respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.

I. Background

A jury trial was held on June 14, 2016, Roberts was convicted of manufacturing methamphetamine and conspiracy to manufacture methamphetamine. The trial court imposed the jury's sentences of 20 years' in prison for manufacturing methamphetamine and 10 years' in prison for conspiracy to manufacture. (Case Nos. CR151446 and 1447). The sentencing order was entered on August 26, 2016. Roberts appealed his convictions to the Court of Appeals of Virginia, challenging the admissibility of records introduced by the Commonwealth. The Court of Appeals granted the appeal and affirmed the conviction in an unpublished opinion on November 7, 2017, Roberts v. Commonwealth, Record No. 1535-16-2 (Va. Ct. App.), 2017 Va. App. LEXIS 276 (Ct. App. Va. Nov. 7, 2017)m and summarized the evidence at trial as follows.

The evidence ... established that in April 2015, Detective James Wright of the Spotsylvania County Sheriff's Office received a tip from an informant that persons living at a house in the county were manufacturing methamphetamine. After corroborating the information in the tip, Wright began surveillance of the property, using a high-powered pair of binoculars and a camera with a large telephoto lens. Wright observed numerous persons, including appellant, walking around the outside of the house and walking between the house and a detached garage. The informant had reported that most of the methamphetamine was cooked in the garage. Wright once saw appellant with a green plastic bottle in his hand, which he swung back and forth as he walked in the yard. Wright testified that such a swinging action was consistent with manufacturing methamphetamine by the "one-pot" or "shake-and-bake" method. Deputy Ray Haney also saw appellant shaking a bottle in his hand as he paced in the yard.

Wright later checked the names of appellant and other persons who lived in the house against the NPLEx database, which is used to track purchases of pseudoephedrine in real time. Wright testified that purchasers are required to show a photo identification and sign a log at the pharmacy where the purchase is being made. A person may buy three and six tenths grams each day or nine grams during a thirty-day period without a valid prescription, and when that limit is reached, further purchases are blocked until the next time period begins. Wright learned from the database that appellant and the other four persons living in the house had made numerous purchases and attempted purchases at pharmacies in the area between August 25, 2014 and June 30, 2015. As a registered user of NPLEx, Wright set up "alerts" to be notified by email when appellant or the other persons tried to buy pseudoephedrine, and he received two alerts during his investigation.

A search warrant was executed on the property on May 20, 2015. The police found items in the house and yard that were consistent with the use and manufacture of methamphetamine, including bottles of starter fluid, cold packs, lithium batteries, coffee filters, and empty packages of pseudoephedrine. A soda bottle containing a white crystalline substance that appeared to be the remnants of a "meth cook" was found under a window in the rear of the garage. Appellant admitted to Wright that he had smoked methamphetamine "in the past," but hedenied making methamphetamine and claimed he had "no idea that [his housemates] were cooking meth in the garage."

After forensic analysis confirmed that two items seized from the property tested positive for methamphetamine and pseudoephedrine, Wright obtained arrest warrants for appellant and the other occupants and returned to the property on August 14, 2015. Appellant consented to a search of his bedroom. Wright discovered pieces of foil, which is used to store methamphetamine, and pieces of cut straw, which is used to ingest the substance, strewn around the room and in a purse that appeared to belong to appellant's girlfriend. In appellant's dresser, Wright located two-liter drink bottles, aluminum foil, a can of starter fluid, and a small blender that was covered in a white powder residue that appeared to be pseudoephedrine. Wright testified that these items were used to make methamphetamine.

Appellant made telephone calls from jail after his arrest, and recordings of three of the calls were played at trial. In one call to his girlfriend, appellant admitted buying methamphetamine from a neighbor but denied manufacturing it. In another call, appellant told his girlfriend he was glad she had not been involved in the offense because she did not have any photo identification and that he and the others were caught because they were "buyin' 'em and buyin' 'em and buyin' 'em." Appellant again claimed he had not "cooked" methamphetamine, but said he "knew what was going on" and "was getting high or whatever." In a third call to a female friend, appellant said he had thrown his life away "for basically nothing," and acknowledged he should not "go back to culinary arts" in the future. He also said he should get a lower charge because there was "only like 80 grams ... in the soda bottle."

One of the persons who lived at the house with appellant testified for the Commonwealth at trial. Aaron Webb said appellant was the only person in the house who knew how to make methamphetamine and that the drug was present in the house "[e]verywhere and all the time." Webb said he had purchased pseudoephedrine from pharmacies for appellant in exchange for methamphetamine. Webb acknowledged he had been charged for his participation in the scheme and said he hoped to benefit from testifying for the Commonwealth. He further said no promises had been made to him and that "it would not be very good for [him] at all" if he failed to testify truthfully.

Appellant testified at trial that he knew drugs were being used at the house, but he denied manufacturing or selling methamphetamine. He also denied purchasing pseudoephedrine and claimed the purchases and attempted purchases attributed to him on the NPLEx records had been made by someone using his identification, which he said had been stolen from him sometime after August 25, 2014. He said he used the cold packs found in his bedroom to cool his drinks and that the other items found in the dresser were his girlfriend's. Appellant acknowledged that he had fourteen prior felony convictions.

Roberts, 2017 Va. App. LEXIS 276, *2-6. The Supreme Court of Virginia denied Roberts petition for appeal on August 10, 2018 and denied his petition for rehearing on October 4, 2018. Robert v. Commonwealth, Record No. 180064.

Roberts filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on September 30, 2019. Roberts v. Clarke, Record No. 191292 ("VSCT R. at ___"). In the claim portion of his petition, Roberts simply asserted "6th Amendment ineffective assistance of counsel," (VSCT R. at 58), but the state habeas petition did not include specific claims or facts. Roberts filed a motion to amend his petition, after the statute of limitations had run, which the Supreme Court of Virginia denied on November 20, 2019. (VSCT R. at 139). The Supreme Court of Virginia denied Roberts motion for reconsideration on January 22, 2020. (VSCT R. at 142). The Supreme Court of Virginia dismissed the petition on February 19, 2020, stating it "is of the opinion that petitioner's claims assert conclusions or opinions without providing factual support and, therefore, do not support the issuance of a writ of habeas corpus. Penn v. Smyth, 188 Va. 367, 370-71 (1948)" (Id. at 143), and denied his motion for rehearing on May 14. 2020. (Id. at 147).

Roberts filed the instant federal habeas petition on August 17, 2020, and raises the following claims:

A. Roberts Counsel was ineffective for:

1. failing to prepare for trial by obtaining the search warrant affidavit used to justify the search of the petitioner's residence [Dkt. No. 1 at 47];

2. failing to prepare for trial by failing to investigate recorded jailhouse call evidence that was used against the petitioner [Id. at 53];

3. not investigating the NPLEX records used as evidence against the petitioner prior to trial [Id. at 56]; and

4. failing to do basic legal research and possess knowledge of law that pertains to the petitioner's case. [Id. at 59].

B. The Commonwealth violated the petitioner's due process rights by(1) knowingly soliciting and allowing false testimony from its witness [Dkt. No. 1-1 at 3]; and

(2) withholding exculpatory information. [Id. at 2].

II. Exhaustion and Procedural Default

"[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted his state remedies by presenting his claims to the highest state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000). In order to meet the exhaustion requirement, a petitioner "must have...