Raymond Richardson v. Jonathan Frame

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 20, 2026
• Docket: 23-7147
• Status: Published

Opinion

USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 1 of 12

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-7147

RAYMOND ANDREW RICHARDSON,

Petitioner – Appellant,

v.

JONATHAN FRAME, Superintendent,

Respondent – Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:20−cv−00573)

Argued: December 9, 2025 Decided: January 20, 2026

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King and Judge Gregory joined.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Holly J. Wilson, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. ON BRIEF: Wesley P. Page, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Patrick Morrisey, Attorney General, Michael R. Williams, Solicitor General, Spencer J. Davenport, Assistant Attorney General, Darius J. Iraj, Legal Fellow, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 2 of 12

WILKINSON, Circuit Judge:

Following his conviction for first-degree robbery, Raymond Richardson sought

habeas relief in federal court. He claimed his trial counsel provided ineffective assistance

by failing to object to a variance between the indictment and the State’s theory at trial.

While the indictment charged Richardson with accomplishing the robbery by threatening

Denise Cool with deadly force, the State argued at trial that he committed the robbery by

physically assaulting her. The district court denied Richardson’s petition, and we affirm.

The indictment informed Richardson that he was charged with committing first-

degree robbery, and he was found guilty of the same offense. That is ordinarily sufficient

to satisfy the demands of due process. In any event, Richardson received actual notice that

he was charged with assaulting Cool during the robbery, so he could not have been

surprised when the State presented evidence of the assault at trial. Indeed, Richardson has

failed to show how the presentation of his defense was hindered by the variance.

I.

A.

Richardson arrived at Cool’s door early one morning to offer her $200 worth of

cocaine. Cool was wary. Richardson had recently been selling her cocaine mixed with

baking soda. Suspecting that this cocaine was also “trash,” J.A. 222, Cool refused his offer.

When Richardson insisted that she pay him anyway, Cool told him to leave. Instead, he

violently attacked her and took $103 she had left on her ironing board.

Richardson was arrested by the police a few days later. In an interview with

detectives, Richardson admitted to hitting Cool but insisted he had not taken her money. A

2 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 3 of 12

West Virginia grand jury ultimately indicted Richardson on six counts, three of which went

to trial: first-degree robbery, assault during the commission of a felony, and possession

with intent to deliver cocaine. This appeal concerns the robbery count. West Virginia law

provides that:

Any person who commits or attempts to commit robbery by: (1) Committing violence to the person, including, but not limited to, partial strangulation or suffocation or by striking or beating; or (2) uses the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree . . . .

W. Va. Code § 61-2-12(a). The indictment charged Richardson with first-degree robbery

under the second method, alleging that he “use[d] the threat of deadly force upon the person

of Denise Cool” to “steal, take and carry away [$103] in violation of Chapter 61, Article 2,

Section 12(a).” J.A. 113.

At trial, however, the State’s theory rested on the first method for committing first-

degree robbery: Richardson’s actual use of violence against Cool. The State described in

its opening remarks how Richardson “beat down” Cool. J.A. 207. Cool then testified that

Richardson “punched [her] straight in the face” and “kept pounding [her]” even after she

had “dropped to the floor.” J.A. 225. And in its closing remarks, the State emphasized to

the jury that Richardson “hit [Cool] because she wasn’t giving him the money that he

wanted.” J.A. 510.

The trial court’s instructions to the jury likewise focused on Richardson’s use of

violence. The court explained that first-degree robbery is committed when a person takes

the property of another “by partial strangulation or suffocation or by striking or beating or

by the threat of presenting of firearms, or by other deadly weapon or instrumentality.”

3 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 4 of 12

J.A. 474. Then the court told the jury that it could convict Richardson if it found, among

other elements, that he had “committ[ed] violence against Denise Cool.” J.A. 475.

Richardson did not challenge the variance between how the robbery count was

charged in the indictment and how it was presented to the jury. In his opening and closing

remarks, defense counsel conceded that Richardson had “beat up” Cool but argued that he

had done so because Cool demeaned him with a racial slur—not because he was trying to

rob her. J.A. 214, 491. Indeed, Richardson’s defense at trial was that he had not taken any

money from Cool.

The jury convicted Richardson of all three counts.

B.

After his convictions were affirmed on appeal, Richardson petitioned the state court

for habeas relief. Among other issues, Richardson claimed he had received ineffective

assistance because his trial counsel did not object to the variance. The court held an

evidentiary hearing in which Richardson and his trial counsel testified.

Trial counsel acknowledged that he should have challenged the validity of the

indictment but testified that the variance did not affect Richardson’s defense:

Q. Were you in any way hampered by the presentation of your defense by the fact that the indictment said “by threat of deadly force” and the proof was by striking and beating? A. No. I think the defense would have been the same. Q. I mean, the defense was -- the defense was not that Mr. Richardson used deadly force as opposed to striking and beating or that he used striking and beating as opposed to deadly force. The defense to the robbery was that there was no larceny of the money and, therefore, there could be no robbery; correct? A. Correct. 4 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 5 of 12

Q. Therefore it did not matter in terms of your defense how that first degree robbery was accomplished? A. Correct.

J.A. 745–46. When asked if he had been surprised when the State presented evidence of

the assault, trial counsel said only that he had “missed that issue in the indictment.”

J.A. 758. He also agreed that another count in the indictment “very clearly said” that

Richardson assaulted Cool “by means of striking and blows and violence.” J.A. 746.

Specifically, the assault count charged Richardson with “punch[ing], kick[ing] and

wound[ing] Denise Cool, during the commission of . . . first degree robbery.” J.A. 113.

For his part, Richardson acknowledged that “[t]he defense’s theory was that yes,

there was a domestic issue that happened bordering on possibly a battery or assault and

battery, but there was no robbery.” J.A. 725. And he conceded that the options available to

the defense were limited by his admission to the police that he had gotten into a physical

altercation with Cool. Nevertheless, Richardson testified that he was surprised when the

State presented evidence of the assault because he had “based [his] defense on that version

of the indictment” charging him with threatening Cool with deadly force. J.A. 766.

The state court denied Richardson’s habeas petition, finding that he “quite clearly

knew the offense with which he was charged.” J.A. 80. The court explained that the

indictment informed Richardson that he was charged with first-degree robbery and

included the statute he was charged with violating. It also observed that the assault count

in the indictment put Richardson on notice that he was charged with committing violence

against Cool “by punching, kicking, and wounding her.” J.A. 80. In any event, the court

found that Richardson had not been prejudiced because whether the robbery “was 5 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 6 of 12

accomplished with a gun or by physical violence was, frankly, not germane to [his]

defense.” J.A. 80. The court thus concluded that it would have overruled any objection to

the variance that Richardson might have made at trial or in a post-trial motion.

The West Virginia Supreme Court of Appeals affirmed the state court’s decision. It

explained that the indictment informed Richardson that he was charged with first-degree

robbery under § 61-2-12(a) and that the State planned to introduce evidence of the assault.

The court also observed that “the means by which [Richardson] accomplished the

robbery . . . was irrelevant to the defense theory.” J.A. 103. Accordingly, the court held

that “any difference between the allegations in the indictment and the evidence at trial did

not mislead [Richardson], subject him to any additional burden of proof, or otherwise

prejudice him and so was an amendment in form, only.” J.A. 103.

After exhausting his ability to seek habeas relief in state court, Richardson

petitioned the district court for federal habeas relief under 28 U.S.C. § 2254. The district

court denied the petition, finding that Richardson received actual notice “sufficient to

apprise him of the charges he needed to be prepared to meet at trial, as required by the

Fourteenth Amendment Due Process Clause.” J.A. 687–88. The district court granted

Richardson’s motion for a certificate of appealability, however, and this appeal followed.

II.

We review de novo the district court’s decision to deny federal habeas relief. Bryant

v. Stirling, 126 F.4th 991, 995–96 (4th Cir. 2025). Our review of the West Virginia

Supreme Court of Appeals’ decision is far more deferential, however. We may not grant

6 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 7 of 12

habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court,” or

“was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). This is a high bar. Richardson “must

show that the state court’s ruling . . . was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

When a petitioner’s habeas claim is based on the ineffective assistance of counsel,

“we review the claim through the additional lens of Strickland and its progeny.”

Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012). Under that standard, the

petitioner much show “that counsel’s representation fell below an objective standard of

reasonableness” and “that the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687–88 (1984). There is “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id. at 689. And

prejudice exists only if “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’

and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105

(citations omitted). For the reasons set forth below, Richardson has come nowhere close to

meeting this “doubly deferential” standard. Knowles v. Mirzayance, 556 U.S. 111, 123

(2009).

7 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 8 of 12

Richardson claims the variance between how the robbery count was charged in the

indictment and how it was presented to the jury deprived him of his Fourteenth Amendment

right to due process. He argues that his counsel’s failure to challenge the variance was

objectively unreasonable and prejudiced his defense. We disagree. The variance did not

deprive Richardson of due process, so any objection by counsel would have been futile.

Accordingly, Richardson cannot establish that he was prejudiced by counsel’s inaction. See

Peterson v. Murray, 904 F.2d 882, 888 (4th Cir. 1990).

The Due Process Clause of the Fourteenth Amendment requires that a criminal

defendant receive “reasonable notice of a charge against him.” In re Oliver, 333 U.S. 257,

273 (1948). “Reasonable notice ‘sufficiently apprises the defendant of what he must be

prepared to meet’” such that he has a meaningful opportunity to defend himself at trial.

Stroud v. Polk, 466 F.3d 291, 296 (4th Cir. 2006) (quoting Russell v. United States, 369

U.S. 749, 763 (1962)). “[A] conviction upon a charge not made . . . constitutes a denial of

due process.” Jackson v. Virginia, 443 U.S. 307, 314 (1979).

Richardson has not shown that the variance at issue here was “so egregiously unfair

as to amount to a deprivation of [his] right to due process.” Ashford v. Edwards, 780 F.2d

405, 407 (4th Cir. 1985).

To begin with, the variance did not even “broaden[] the bases for conviction” such

that Richardson was “actually convicted of a crime other than that charged in the

indictment.” United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (quoting United

States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991)). The indictment charged Richardson

8 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 9 of 12

with violating West Virginia Code § 61-2-12(a), and the jury found him guilty of that very

same offense. Richardson thus received “notice of the specific charge” upon which he was

ultimately convicted. Cole v. Arkansas, 333 U.S. 196, 201 (1948).

It is true that § 61-2-12(a) provides two alternative means by which first-degree

robbery can be accomplished. The indictment charged Richardson with robbing Cool by

one means (threatening deadly force), while the evidence presented at trial showed he had

done so by the other (committing violence). Where a variance does not “constitute a

broadening of the charges,” however, it does not ordinarily offend principles of due

process. United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996); see also Barbe v.

McBride, 477 F. App’x 49, 51–53 (4th Cir. 2012) (per curiam). After all, “the Constitution

does not require the method by which the crime was committed to be alleged in the

indictment.” Hartman v. Lee, 283 F.3d 190, 194 n.3 (4th Cir. 2002).

Richardson relies on two out-of-circuit decisions to argue that a variance violates a

defendant’s right to due process. See Opening Br. at 19–20 (discussing Lucas v. O’Dea,

179 F.3d 412 (6th Cir. 1999), and Cokeley v. Lockhart, 951 F.2d 916 (8th Cir. 1991)). But

in both of those cases, the defendant was convicted of a different offense than the one he

was initially charged with. Lucas, 179 F.3d at 415; Cokeley, 951 F.2d at 920. In cases

where the variance at issue concerned only how the charged offense was committed, both

the Sixth Circuit and the Eighth Circuit have held that a defendant’s due process rights are

not violated. Martin v. Kassulke, 970 F.2d 1539, 1543–47 (6th Cir. 1992); Stephens v.

Norris, 83 F.3d 223, 224–25 (8th Cir. 1996) (per curiam).

9 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 10 of 12

For example, in Martin, the defendant was charged with first-degree rape by forcible

compulsion. 970 F.2d at 1542. At trial, however, the court told the jury that it could also

convict him of first-degree rape if the victim was physically helpless. Id. Following his

conviction, the defendant sought habeas relief in federal court. Id. at 1541. The Sixth

Circuit explained that the “key question” was “whether rape by forcible compulsion and

rape due to physical helplessness should be seen as two alternative crimes or merely two

alternative methods by which the one crime, rape, could have been committed.” Id. at 1543.

After concluding that the statute “provides only one offense of rape with two different

methods of commission,” the Sixth Circuit held that the variance did not violate the

defendant’s right to due process. Id. at 1545.

Similarly, in Stephens, the defendant was charged with rape for engaging in sexual

intercourse by forcible compulsion. 83 F.3d at 223. At trial, however, the court told the

jury that it could convict the defendant of rape if he “had engaged in either sexual

intercourse or deviate sexual activity” by forcible compulsion, and the State presented

evidence of both sexual acts. Id. at 224. Following his conviction, the defendant sought

habeas relief in federal court. Id. The Eighth Circuit held that there was no due process

violation because “controlling [state] law at the time of [the defendant’s] trial provided that

[the] two ‘ways’ to commit rape constituted variations of a single crime.” Id. at 225.

Like Martin and Stephens, the statute at issue here does not involve two distinct

crimes but a single crime that can be accomplished in two alternative ways. See, e.g., State

v. Pannell, 751, 696 S.E.2d 45, 53 (W. Va. 2010) (per curiam) (stating that there are “two

statutory methods for committing the offense of robbery”); State v. Wilkerson, 738 S.E.2d

10 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 11 of 12

32, 37–38 & n.12 (W. Va. 2013) (similar). Therefore, Richardson “knew or should have

known that he could be convicted for engaging in either form of” first-degree robbery when

he was charged with violating § 61-2-12(a). Barbe, 477 F. App’x at 52.

What is more, Richardson had actual notice that he was charged with committing

violence against Cool. The assault count in the indictment charged Richardson with

punching, kicking, and wounding her during the commission of the robbery. Richardson

thus “clearly had notice of the charges against him, was able to prepare a defense, and was

not surprised by the evidence introduced at trial.” Thompson v. Nagle, 118 F.3d 1442, 1454

(11th Cir. 1997). Due process requires nothing more. See Hulstine v. Morris, 819 F.2d 861,

864 (8th Cir. 1987) (“Due process requirements may be satisfied if a defendant receives

actual notice of the charges against him, even if the indictment or information is

deficient.”); Stroud, 466 F.3d at 296–97.

Finally, even if we were to assume that Richardson was surprised by the change in

the State’s theory, he still must show that the variance “hinder[ed] the preparation of his

defense.” Randall, 171 F.3d at 203; see also Ashford, 780 F.2d at 407; Barbe, 477 F. App’x

at 52. The West Virginia Supreme Court of Appeals found that Richardson had failed to

do so, and there is ample evidence to support its conclusion.

As Richardson testified, the defense’s strategy was to argue that Richardson had not

taken any money from Cool. Whether Richardson threatened Cool with deadly force or

physically attacked her is irrelevant to the presentation of that defense. Moreover,

Richardson admitted to the police that he had assaulted Cool and conceded the same at

trial. There is no reason to believe that Richardson would have changed course had the

11 USCA4 Appeal: 23-7147 Doc: 35 Filed: 01/20/2026 Pg: 12 of 12

robbery count charged him with committing violence against Cool. Indeed, Richardson’s

trial counsel testified in no uncertain terms that the defense would have been the same

notwithstanding the variance and that the variance did not hamper the presentation of the

defense in any way.

For the foregoing reasons, we agree with the state court that any objection to the

variance would have been futile. Accordingly, Richardson cannot show that he was

prejudiced by trial counsel’s failure to make such an objection. Peterson, 904 F.2d at 888.

The district court’s denial of Richardson’s habeas petition is in all respects affirmed.

AFFIRMED