Where petitioner argues he is entitled to habeas relief, alleging that the commonwealth falsely stated at trial that a witness had been subpoenaed, the claim is procedurally barred.
Petitioner could have raised it at trial. Further, petitioner has not pleaded a viable ineffective assistance claim.
A grand jury indicted petitioner Little for possession of drugs and a firearms charge. At trial, the commonwealth told the venire the names of its potential witnesses, including Hayes.
At trial, outside of the jury’s presence, the commonwealth stated its intention to call Hayes as a witness and told the court that it was unlikely that she would be present. If indeed she did not appear, “the Commonwealth indicated that it would seek to introduce a recorded jail call between Hayes and Little. …
“The jury returned to the courtroom, and the Commonwealth called Hayes as a witness. … The bailiff announced Hayes’s name and subsequently stated that Hayes was not present, and the Court then asked the Commonwealth if Hayes had been properly subpoenaed. …
“The Commonwealth stated that Hayes received posted service … and asked that the Court issue a show cause for her failure to appear.”
The commonwealth and defense counsel stipulated that Little initiated the call from jail the previous night. “During the phone call, a female voice asks, ‘Do you know why they called me as a witness today?’ … Little responds, ‘Yeah, they did.’ … Little appeared to describe the testimony from the trial and then stated, ‘I wish you ain’t had that charge, yo. If you ain’t have that charge, I would definitely have you come to court.’ …
“The Commonwealth subsequently rested its case, and Little did not present any evidence. … During closing argument, the Commonwealth argued that the phone call demonstrated Little’s manipulative behavior[.]”
The jury convicted Little. He exhausted his appeals and filed a petition for a writ of habeas corpus.
False evidence claim
Respondent Clarke “argues that Little’s false evidence claim is not cognizable in a habeas corpus proceeding because he failed to raise the issue at trial or on appeal. Little, by contrast, contends that neither he nor his counsel was aware that the Commonwealth inaccurately informed the Court that Hayes was under subpoena to appear at trial.
“The Supreme Court of Virginia has held that non-jurisdictional claims that could have been raised at trial and on appeal are not cognizable in a habeas corpus proceeding. …
“[T]he Court finds that defense counsel, on behalf of Little, could have viewed the online case file prior to or during trial to determine whether a return of service of Hayes’s witness subpoena had been filed with the Court.
“Because defense counsel should have known of the lack of return service at the time of trial and therefore could have objected to the Commonwealth calling Hayes’s name in front of the jury, the Court holds that Little’s false evidence claim is not cognizable in a habeas corpus proceeding.
“Assuming, arguendo, that Little had properly preserved his false evidence claim, it still fails. In order to prevail on a false evidence claim, a court must find (1) the evidence at issue was false, (2) the Commonwealth knew it was false, and (3) the false evidence was material to the conviction. …
“Here, Little failed to satisfy any of those elements. Contrary to Little’s assertion, an attorney’s statement is not evidence. …
“Accordingly, Little has failed to sufficiently allege a viable claim involving false evidence.”
Further, the commonwealth’s trial counsel provided an affidavit that “demonstrates … the Commonwealth had at least a goodfaith belief that Hayes had been properly subpoenaed. Because the Commonwealth was unaware that a return of service had not been filed, the Court finds that the Commonwealth did not knowingly offer any false evidence.
“As to the third prong, materiality, the Court finds that the evidence was not material to the outcome of this case. The Commonwealth introduced, inter alia, the following evidence at trial: that Little drove the SUV to the gas station; that the SUV contained a digital scale, crack cocaine, and a firearm in the cupholder between the driver’s and front passenger’s seats; that Little abandoned the SUV and fled the scene after police arrived; that Little frequently called the same phone number from which a request to tow the SUV was made; that Little was later arrested when discovered in the SUV; and that Little subsequently admitted that he was ‘going to keep selling drugs.’
“The Court finds that it is not reasonably likely that the Commonwealth’s statements regarding Hayes’s failure to appear for trial affected the judgment or recommended sentence of the jury.”
Assistance of counsel
“[T]he Court finds that Little’s trial counsel’s conduct fell within the range of reasonable professional assistance. At the time, defense counsel had no reason to doubt that Hayes had been properly subpoenaed. In fact, the Commonwealth stated to the Court that Hayes was served by posted service.
“Additionally, when evaluating an ineffective assistance of counsel claim, courts are to give trial counsel’s strategy a high degree of deference. …
“Here, the Court notes that Little’s trial counsel may have made a tactical decision not to raise the issue. In summary, the Court does not find that counsel’s representation fell below an objective standard of reasonableness. …
“Assuming, arguendo, that defense counsel’s performance was deficient, Little failed to adequately demonstrate that he was prejudiced. As discussed above, the totality of the evidence strongly supports Little’s convictions.
“The Court finds that even if defense counsel had challenged whether Hayes had been properly subpoenaed and the jury was not informed of this fact, the outcome of the trial would have remained the same, as the totality of the evidence supported the jury’s verdict.
“Moreover, the Court does not find that defense counsel’s allegedly deficient performance impacted sentencing, as Little’s extensive criminal history arguably justified a longer sentence than his codefendant.”
Little v. Clark, Case No. CL 21-4668, Jan. 28, 2022, City of Norfolk Circuit Court (Lannetti). Matthew L. Engle for petitioner, Craig W. Stallard for respondent. VLW 022-8-002, 11 pp.