Cross v. Gilmore
164 F. Supp. 3d 818
E.D. Va.2016Background
- In July 2010 a private citizen (Amanda Sumner) searched Cross's cell phone, found sexually explicit messages to his 12‑year‑old step‑sister, and reported them to Spotsylvania County sheriff’s deputies. Deputies then arrested Cross and searched his phone without a warrant.
- Cross pleaded guilty to electronic solicitation of a minor under Va. Code § 18.2‑374.3 on January 3, 2011, and was sentenced to 15 years (10 suspended). He did not file a direct appeal; conviction became final on February 2, 2011.
- Cross filed a federal habeas petition under 28 U.S.C. § 2254 on June 17, 2015, asserting (1) the warrantless phone search violated the Fourth Amendment and (2) his trial counsel was ineffective for failing to raise/suppress that claim.
- Cross argued his § 2254 filing deadline should run from Riley v. California (2014), which held cell‑phone searches incident to arrest generally require a warrant, because pre‑Riley state/circuit law made filing earlier futile.
- The Commonwealth moved to dismiss as untimely and on the merits; the district court considered timeliness and the ineffective‑assistance claim and held the petition untimely and the IAC claim meritless.
Issues
| Issue | Cross's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Timeliness under § 2244(d)(1) — start date | Filing deadline should run from Riley (June 25, 2014) because pre‑Riley law prevented meaningful relief (futility) | Deadline ran from conviction finality (Feb 2, 2011); pre‑Riley futility is not a § 2244(d)(1)(B) “impediment” | Court held § 2244(d)(1)(B) inapplicable; deadline runs from Feb 2, 2011; petition untimely |
| Applicability of § 2244(d)(1)(C) (new rule made retroactive) | Implied argument that Riley should be treated as newly recognized and retroactive | Riley is a new rule but Supreme Court has not made it retroactive on collateral review; Riley is neither substantive nor a Teague "watershed" rule | Court held § 2244(d)(1)(C) inapplicable because Riley is not made retroactive and is not watershed or substantive |
| IAC for failing to raise Fourth Amendment claim | Counsel was ineffective for not advising/moving to suppress based on Fourth Amendment | Failure to anticipate a new rule is not unreasonable; even if unreasonable, no prejudice because private search and good‑faith/precedent exceptions would likely admit evidence | Court held IAC claim fails: counsel not ineffective and no Strickland prejudice |
| Exclusionary rule / remedy viability | Cross contended he lost remedy because Riley was announced later | State/circuit precedent and private‑search evidence meant suppression would likely fail pre‑Riley; Davis/good‑faith doctrine applies | Court held exclusionary rule likely inapplicable pre‑Riley (good‑faith/precedent and private search), so suppression would not have succeeded |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective‑assistance test)
- Riley v. California, 134 S. Ct. 2473 (searches of cell phones incident to arrest generally require a warrant)
- Minter v. Beck, 230 F.3d 663 (4th Cir. 2000) (futility of relief is not a § 2244(d)(1)(B) "impediment")
- Davis v. United States, 564 U.S. 229 (exclusionary rule inapplicable where police acted in reasonable reliance on binding precedent)
- Tyler v. Cain, 533 U.S. 656 (new rule is "made" retroactive on collateral review only by Supreme Court holding)
- Beard v. Banks, 542 U.S. 406 (Teague categories and retroactivity constraints on collateral relief)
- Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995) (attorney not ineffective for failing to anticipate new rule)
- United States v. Ellyson, 326 F.3d 522 (4th Cir. 2003) (private searches not subject to Fourth Amendment exclusionary rule)