No Due Process Violation in Shifting State Prosecution Theories

Richardson v. Frame: Richardson was involved in altercation with Cool, to whom he sold a batch of low-quality cocaine. Richardson beat up Cool and, according to her, took about $100 in cash she had in her apartment. Richardson was charged in West Virginia state court with assault and robbery (among other things). The robbery was charged under the portion of the West Virginia statute that requires the threatened use of force involving a weapon, rather than the portion that involved the actual use of force.

At trial, the Government pivoted and presented a case that turned entirely on the actual use of force. Richardson’s counsel did not object. Richardson was convicted of robbery and sentenced to 100 years in prison. On direct appeal the state supreme court found no fatal variance in Richardson’s trial and, in state habeas proceedings, rejected his argument that he’d received ineffective assistance of counsel. Richardson filed a §2254 petition, which the magistrate recommended granting, only to have the district court sustain the state’s objections and deny.

On appeal, the Fourth Circuit affirmed the denial of Richardson’s §2254 petition. Ultimately, the question came down to whether Richardson was prejudiced by the state’s change of theory at trial. The court held he was not, both because he was already on notice that actual violence was at issue (due to the assault charge) and because trial counsel’s defense strategy was that no money had been taken (and thus no robbery), rather than anything to do with the nature of the charged robbery. Given the required AEDPA deference, the court affirmed.

NOTE: I was counsel for Richardson in this case.