
    CIRCUIT COURT OF SPOTSYLVANIA COUNTY
    Joseph Lee Garrett v. Ronald Angelone et al.
    September 8, 1997
    Case No. CL97-180
   By Judge William H. Ledbetter, Jr.

In this habeas corpus case, Joseph Lee Garrett contends that he is unlawfully detained because his convictions are tainted by ineffective assistance of trial counsel, prosecutorial misconduct, insufficient evidence, perjured testimony, and related “due process” violations.

Prior Proceeding

On March 3,1994, Garrett was convicted in Ibis court of three drug-related felonies and sentenced in accordance with the jury verdicts to twenty years in prison.

Garrett appealed his convictions to the Court of Appeals. On February 27, 1995, that court denied the appeal. Garrett’s attempt to appeal to the Supreme Court was unsuccessful because the appeal was not perfected in a timely manner.

Then, Garrett filed a petition for writ of habeas corpus in this court (# L96227). In his pleading, he claimed that he was denied his right of appeal because of ineffective assistance of counsel. On August 1, 1996, this court directed the prosecutor to move the Supreme Court for leave for Garrett to pursue a delayed appeal. That motion was made, and on August 15,1996, the Supreme Court granted Garrett leave to proceed with an appeal. Other grounds alleged in Garrett’s petition were not adjudicated, and die habeas proceeding was concluded.

On March 18, 1997, the Supreme Court refused Garrett’s appeal on the merits.

This Proceeding

Garrett instituted this habeas proceeding on April 30, 1997, setting forth essentially die same grounds raised but not adjudicated in the previous habeas proceeding. The respondents filed a motion to dismiss, accompanied by memorandum and affidavits. Hie court granted Garrett time to reply. Garrett submitted his reply on August 12, 1997. This opinion addresses the respondents’ motion.

Applicable Law

It is well settled that if the allegations of illegality can be fully determined on the basis of recorded matters, the court may make its determination whether a writ should issue on the basis of the record. Virginia Code § 8.01-654(B)(4); Yeatts v. Murray, 249 Va. 285 (1995); Hill v. Commonwealth, 8 Va. App. 60 (1989). On the other hand, if nonfrivolous cognizable claims are asserted about factual matters outside the record, the court should conduct an evidentiary hearing.

In this case, a full record exists, including a transcript of all proceedings. Thus, the court is able to review die complete record with respect to the merits of Garrett's contentions.

Ineffective Assistance of Counsel

Garrett’s claim of ineffective counsel span the spectrum from allegations regarding pretrial preparation (failure to summons witnesses and failure to investigate the witnesses against him) to allegations concerning performance at tiie trial (failure to adequately cross-examine witnesses, failure to object to instructions, comments to the jury that were prejudicial to Garrett) to allegations of deliberate misconduct {conspiring with the prosecutor to allow witnesses against him to give false testimony and intentionally refusing to cal exculpatory witnesses).

When a habeas petitioner alleges ineffective assistance of counsel, he bears the burden of showing that counsel's performance fel below an objective standard of reasonableness and that tire grossly deficient services actually prejudiced the defense. Strickland v. Washington, 455 U.S. 668 (1984). A heavy measure of deference is given to counsel's decisions regarding trial strategy or tactics. As for the “prejudice” factor, there must be a showing that there is a reasonable probability that but for counsel’s ineptness or errors the results would have been different. A “reasonable probability," as defined in Strickland, means a probability sufficient to undermine confidence in the outcome of the case.

Further, when tine petitioner is claiming ineffective counsel (or some other violation of his constitutional rights), he must explain the claim with such specificity or particularity that the court can make a reasonable judgment whether a plenary hearing would be fruitful in ferreting out the truth of the allegations. Conclusory statements, with no factual support, are insufficient Penn v. Smyth, 188 Va. 367 (1948).

Here, the allegations about counsel’s performance contain nothing more than conclusory statements or argumentative propositions; none is accompanied by a proffer of evidence that allegedly was not produced.

At the heart of this cluster of claims is Garrett’s assertion that the witnesses against him lied. Without ever explaining exactly what portions of their testimony were false, Garrett goes on to contend that his attorney did not prepare for such eventuality, he did not successfully show by impeachment or otherwise that the witnesses were lying, and he did not object to their testimony.

Taking tire last allegation first, it is elementary that one does not "object” to a witness’s testimony mi tire ground that it is untrue. The credibility of witnesses and tire weight to be given their testimony is a matter for tire jury to decide based upon all the evidence in the case.

As for tire other allegations concerning counsel’s ineffectiveness vis-a-vis the Commonwealth’s witnesses, a brief review of the fhets is necessary.

The evidence established that in August of 1993, Garrett, Rebecca Duvall, Kenneth Lehtma, and Garrett’s uncle (Sherill M. Garrett) went to Phoenix, Arizona, in Duvall’s car. They returned several days later, accompanied by John Woodward, with more than five pounds of marijuana and about 500 “hits” óf LSD. They were intercepted in Spotsylvania County by members of the area narcotics task force. Garrett jumped from the car and ran but was later apprehended. The others were arrested at the point of interception. Later, it was disclosed that Garrett’s uncle had tipped off the police about the venture and about the group’s route and time of return to Virginia.

The principal witnesses against Garrett at trial were Duvall, Lehtma, and Woodward. They testified that Garrett coordinated the trip to Arizona, contacted the source for die drugs in Arizona, and was in possession of die drugs during die return trip. Garrett’s uncle did not testify.

Garrett says that his attorney led him to believe that the informant was Lehtma, not his uncle. He contends that his attorney did not call his uncle to testify for him and that if he had, the uncle’s testimony would have contradicted die Commonwealth’s witnesses.

In an affidavit attached to the respondent’s motion to dismiss, Garrett’s trial counsel emphatically denies that he told Garrett that Lehtma was the informant He avows that he “specifically told” Garrett that his uncle was the informant

Whether counsel told Garrett the identify of the informant it is obvious from die record that counsel knew die identify of the informant and properly prepared for trial on die basis of that knowledge. Further, die court is of the opinion that counsel told Garrett, prior to trial, that the informant was his uncle.

Why would counsel call the police informant as a witness? Most of what he had told the police had been confirmed when the group arrived from Arizona on schedule in a vehicle matching the description he had given. Thus, any testimony that Garrett’s uncle gave at trial surely would have implicated Garrett in the crimes as long as his testimony was consistent with what he told police while acting as informant. If, on die other hand, Garrett’s uncle had attempted to exonerate Garrett by altering his account of events, Ms testimony would have been subjected to vigorous impeachment

In any event, Garrett provides nothing but speculation and conjecture with respect to what Ms uncle would have said if counsel had summoned him to testify at trial. If the court conducted a plenary hearing now, three and a half years after the trial, Garrett’s uncle’s assertions about what he would have said if he had been called as a witness at trial would be, at best, suspect. On August S, 1997, Garrett’s uncle wrote a letter to tins court under the style of this case in wMch he acknowledged that he “participated in [Garrett’s] arrest and conviction.” He said he had “information” about “the whole event” He asked the court to give Garnett “a chance to be heard.” He concluded by alleging that the "information I obtain [sic] could prove justice has been served for Joseph and the Commonwealth of Virginia.” The enigmatic letter suggests nothing about any “information” Garrett’s uncle may possess, which was not available to the jury, that could alter the outcome of die case.

Garrett’s contention that his attorney did not properly cross-examine Duvall, Lehtma, and Woodward is belied by the record.

Garrett’s contention that his attorney did not object to jury instructions tendered by die Commonwealth is belied by the record. Further, nothing in the record suggests that the court improperly instructed the jury regarding the legal principles applicable to the case, hi his petition, Garrett does not point to any particular jury instruction to support his claim of ineffective assistance of counsel; instead, he merely says that his attorney did not object That assertion, which die trial transcript demonstrates is untrue, is insufficient

As for Garrett’s claim that trial counsel did not do enough protrial investigation and preparation, the petition contains only conclusory assertions, providing the court with nothing of substance to inquire into a plenary hearing. Further, the record indicates that counsel had adequately prepared for trial.

Finally, Garrett contends that his attorney conspired with the prosecutor to intentionally “sabotage* any chance of a Mr trial. Nothing in the record supports such an extraordinary claim, and nothing in Garrett’s petition creates even a reasonable suspicion teat his attorney acted deliberately, in association with the prosecutor, to deny Garrett a Mr trial.

Prosecutorial Misconduct

Garrett’s claim of prosecutorial misconduct is, in essence, the mirror image of his claim that his dial attorney conspired with the prosecution to deny him a Mr trial. As noted above, nothing in the record supports such a claim, and notiiing in Garrett’s petition creates even a reasonable suspicion of such misconduct.

In his petition, Garrett contends that “on many occasions” the prosecutor told the jury that Garrett’s uncle was a co-conspirator and a “material player in the preparation, planning and act of the alleged conspiracy,” whereas she should have presented “the true feet” that Garrett’s uncle was the informant The trial transcript accurately reflects the prosecutor’s presentation of evidence and argument at trial and establishes that Garrett’s characterization of those matters is untrue. Further, it is axiomatic that the Commonwealth is not obligated to call its confidential informant as a witness at trial, especially where, as here, other members of the conspiratorial group were willing to testify against the defendant. With that principle in mind, it is clear that the prosecutor did not mislead toe jury — or Garrett, for that matter — or otherwise engage in improper conduct.

Garnett’s assertions that toe prosecutor knowingly withheld exculpatory evidence has no basis in fact Those allegations are either conclusoiy or are belied by other allegations contained in toe petition. For example, Garrett refers to a "ledger and address book.” Actually, the ledger and book to which he refers are his own ledger and book. How toe Commonwealth knew about them, what information they contained, and how that information would have been exculpatory are not explained. Further, it is unclear why toóse things could not have been disclosed to toe jury by toe defense if in fact they contained exculpatory evidence.

Garrett’s contentions about toe impropriety of various statements made by the prosecutor in her opening statement to toe jury and in her closing argument are without merit.

insufficient Evidence

Garrett’s assertion that toe evidence at trial was insufficient for a conviction is not cognizable in a state habeas proceeding. Pettus v. Peyton, 207 Va. 906 (1967); Collison v. Underwood, 1 Va. App. 443 (1986). Further, it is obvious from toe record that, if toe jury believed toe testimony of Garrett’s compatriots, as toe verdicts demonstrate that it did, there was ample evidence to support toe convictions. Finally, appellate courts have refused appeals on toe merits on two occasions, thereby confirming, at least implicitly, that toe evidence was sufficient In an unpublished opinion, toe Court of Appeals said as much. Court of Appeals # 0728-94-2, February 27, 1995.

Perjured Testimony

Garrett claims that Duvall, Lehtma, and Woodward gave perjured testimony against him at toe trial. Because Garrett offers no particulars, there is no tactual basis for such a contention and no reason why the court should conduct a plenary hearing to inquire further.

It was for toe jury to decide whether toe witnesses’ testimony was credible and how much weight to give it, in whole or in part

Garrett’s related allegation that toe prosecutor and defense counsel knew that toe witnesses’ testimony was false and deliberately allowed if to be given without impeachment has been addressed above.

Other Due Process Violations

Ganett contends that his due process rights were violated because, inter alia, he was not advised of the charges against him before he waived extradition from Maryland. Garrett cannot challenge his Maryland extradition proceedings in a Virginia post-trial habeas proceeding.

Further Ganett says that he was not even advised of the charges against him until after his trial. That allegation is patently untrue. See transcript of arraignment, February 2,1994.

Conclusion

For the reasons explained, the respondents' motion to dismiss will be granted and the petition will be summarily dismissed, the eourtbeing of the opinion that no cognizable factual issue exists for which a plenary hearing is appropriate. The court has today entered die proposed final order tendered by counsel for the respondents with the motion to dismiss.  