Waters v. Clarke, etc., No. 2:2011cv00630 - Document 38 (E.D. Va. 2012)
Court Description: OPINION AND FINAL ORDER - Respondent's motion to dismiss is GRANTED, and all of Waters' habeas claims are hereby DENIED and DISMISSED. Finding that Waters has not satisfied such standard, a certificate of appealability as to his § 2254 motion is DENIED. Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Signed by District Judge Mark S. Davis, filed and copies distribted on 9/28/2012. (bnew)
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FILED UNITED STATES DISTRICT COUBT EASTERN DISTRICT OF VIRGINljA Norfolk SEP 28 2012 Division CLERK, US DISTRICT COURT DONALD WAYNE WATERS, NORFOLK, VA #1074460, Petitioner, v. Civil HAROLD W. CLARKE, Virginia Director Department of of No. 2:llcv630 the Corrections, Respondent. OPINION This States matter that pending Judge's this motion objections opposing to by as in and to full, all and DISMISSED. grant, David part, Court by and Harold filed completed habeas hereby in W. part, Clarke Magistrate the Waters the to the ("R&R") Respondent, ("Waters" or Court in United by respective this the deny, considering motion Waters' The in to Recommendation Wayne recommendations Having objections filed party's objections, of on objections Respondent's all ORDER and dismiss the each party. that Court carefully by and party's either concludes R&R, filed "Petitioner"), to FINAL Report Court After thorough the Judge's {"Respondent"). review before Magistrate recommending the is AND responses conducted R&R such dismiss claims that adopts were review, should are a to de Court GRANTED, therefore and novo objected this be the DENIED approves the findings they and recommendations recommended Judge did dismissal not but discovery permitted of such that discovery, is the instead claims. concludes record as an R&R. history of Virginia the history Neither recommended old adopts this Such victim's conviction, exhausting habeas corpus "§ 2254"). to dismiss of family's was state motion are PROCEDURAL Part A this other Court form of based on HISTORY nor sentenced habeas the the his the factual Magistrate Magistrate summary of Petitioner, the was battery of while Waters to 28 20 in Petitioner motion currently pending before and this Judge's a four § prison. filed 2254 a on his After federal (hereinafter Respondent's Court. in year working Following years U.S.C. Judge's procedural was system. and convicted sexual remedies, to herein of to television Petitioner's claims, validity time. short, pursuant the warranted occurred court on is aggravated incident Waters his In were discretionary any objected case. Magistrate or in findings court remaining extent claims that passed incorporates forth party factual state girl. set The remaining Court the dismissal this and to hearing, as FACTUAL AND R&R recommended those at the claims. the this evidentiary exists Court procedural to in Waters' simply unnecessary, it forth that before As I. This of indicate meritorious, be set motion Following objections certain issuance from both opposing received party's the R&R, this Petitioner and made recommendations thereafter of Magistrate each by the party's objections. Respondent respective This Court received challenging Judge. The responses matter is Court the ripe now to for review. II. "The ^make a Federal de [magistrate (quoting also portions *only which Ace. Ins. or Co., § § Proceeding of the 2254 are itself that there record in 416 F.3d 315 at order to {quoting U.S. Fed. no the R. portions of 310, 315 Dist. clear or v. (4th Cir. Courts 8(b). this error P. 72 2005) original); on the Advisory see As Court recommendation.'" Civ. the Diamond in to, to findings made.'" objected is court proposed is F.3d not accept district (alteration in that a those specified 636(b)(l)) R&R the of 416 U.S.C. satisfy requires objection Gov. R. 28 report to & Act determination judge's] Life FOR REVIEWING THE R&R Magistrates novo recommendations Colonial STANDARD to "must face of Diamond, Committee's Note). III. A. Neither § 2254 claims DISCUSSION Standard for Evaluating § party as objects set forth 2254 Motion to the legal standard applicable in the R&R. Accordingly, the to Court hereby adopts Magistrate the following legal standard as set forth by Judge: Habeas petitions filed pursuant to 28 U.S.C. a state's custody over a petitioner challenge § on 2254 the grounds that such custody violates the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Before applying for federal habeas relief, however, a available petitioner in state ineffectiveness 2254(b)(1). must court of first or such Therefore, exhaust demonstrate remedies. before a the the 28 state remedies absence or U.S.C. § prisoner can apply for federal habeas relief, he must first give the state court an opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing. Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) . "To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to Evatt, 105 Connor, F.3d 404 v. concedes, federal the and state's 907, U.S. the court." 911 (4th Cir. 1997); 270, 275-76 (1971). Court agrees, that claims have been ECF No. 16 at any claim adjudicated court, unless decision that unreasonable federal law" on an §§ contrary court decides a a state law the it 413. by the state "resulted in or involved A a 529 A determination state of depends, in whole is not supported fact the it on court's a an opposite the 362, court the facts of an is the that law, Court or has facts. (2000). clearly makes its 412-13 if to of Supreme legal 28 decision law question applies when facts." indistinguishable correct to the federal a than U.S. unreasonably applies state conclusion Court materially identifies of established differently Taylor, unreasonably at merits determination at of court if the adjudication to, Supreme case v. remedies have been may not grant relief contrary clearly set Williams exhausted. 6). on 2254(d) (1)-(2). to by of application of, clearly established "resulted in a decision that was based [arrives] reached purposes or unreasonable U.S.C. on that was v. see Picard Respondent for Once a petitioner's state exhausted, a federal court still on Matthews Waters' review, (Resp.'s Mem., highest A established principle, the case. but Id. unreasonable application of the or in part, on factual finding by evidence in the record. law that See the Wiggins v. (2003) Smith, demonstrated finding" R&R at "partial rendering Court of After petition, habeas Waters dismiss 123 S. Ct. documentary on an erroneous 2527 record factual a of habeas written filed of Rules Supreme the rehearing." referenced brief, and both petition single-page his expressly supplemental Waters' Va. not order. in of the Sup. Ct. R. 5:20. petition referenced one of Supreme rehearing in as claims filed Court summary seeking brief to such a such to the Waters supplemental exhibits of or "petition filing, his to opinion pursuant and the twenty- Virginia attached In to of supplemental Waters habeas motion ten-page thirteen four dismiss to dismissal, Virginia, original The to the the Court Such exhibits Supreme attaching motion the the included to Supreme Waters' Subsequent of to dismiss brief"), reference Court to opposition claims. submitted brief. for motion granting each newly brief. a The habeas did supplemental of filed brief pursuant jurisdiction, exhibits. opinion but filed "supplemental addressed the motion, a Petitioner's relief, the Supreme Court of Virginia Respondent advanced individually the 528, by conclusion unreasonable). original (hereinafter newly issued for court's Virginia's exhibits. any 510, reliance Evidence Before Petitioner's all U.S. contradicted 10-11. B. four 539 (finding attached Virginia fashion, to denied issuing a The Magistrate conclude that attached to Supreme Court all his of required see 2007) habeas are attached to Waters' this Johnson, in a the Court that procedural brief that Court of original habeas petition. Cullen that v. limited Pinholster, federal review only two jurisdiction to those Accordingly, considering the 131 1388, under S. Ct. § 2254 the is exhibits initial leave of did 2254 original "backward the Waters' review, exhibits. (2011) to below, before to not court discussed properly 1398 opinion rehearing As § before Furthermore, attached on responsive properly seek exhibits were a its exhibits. only Virginia to Cir. not for the (4th claims. petition file of 139 court, issued failure and the it habeas Waters' Supreme is when to "original were Court Sup. that brief such Va. 134, of the so. contends Waters' finds do therefore of additional to F.3d court and Virginia prior failed to Supreme petition supplemental contends the of Virginia before objects leave leave those properly of 495 Court verified of Waters' Court a all Respondent seek Waters Court dismissing Rules absent Respondent Supreme submit v. that, case: to that permitted corpus pleading"). cure Strong (indicating pleadings the and were this including Respondent the Petitioner Ct. 5:7; that that exhibits, brief, Virginia. brief, recommends Petitioner's arguing supplemental R. R&R supplemental of recommendation, Virginia Judge's this See (indicating looking" and requires the federal based the record on court in to examine existence at the the state time court such decision decision was made). A review Fourth the Circuit's reveals the of that Supreme attached ("Fourth this Court Court supplemental of brief thereto State Court U.S.C. § was were Although expressly striking not mention the habeas such brief, 5:7," the Fourth supplemental Mirroring brief, of Virginia opinion. brief the with which facts in exhibits, did not filing the in the here, state Strong mandates 7 state filed that the or that adhered supplemental Strong's Id. supplemental Supreme exhibits this did dismissing court. a a order court consider but brief an Court a 28 Id. concluded submit the filed such decision the in (quoting issue Supreme Waters such not not court exhibits motion. Circuit to before acknowledge Accordingly, leave would properly Strong, its time Waters' the 139 brief, [Virginia] requires the presented at the Johnson petitioner did in v. ruling, habeas Fourth Circuit as his for at that F.3d the of The that and supplemental Id. appears 495 Virginia supplemental that, "''evidence Strong, of Strong initial filed, not support Strong's its Appeals in conclude issued In of opinion Strong, Court Court to improperly in motion. "[i]t Rule bound therefore Supreme its is 2254(d)(2)). brief to Circuit") proceeding.'" the States Virginia supplemental because United Court Court in its conclude that, were when not first the Waters supplemental filed rehearing the Supreme Respondent is at a properly act as exhibits a to leave before the in petition for exhibits in claims for relief. In fact, there in relevant case law not precluded rehearing. 3746138, ("This Supreme for from See at *39 Court Green n.16 finds Court, rehearing, advancing v. (E.D. that including can be all new Dec. evidence evidence reviewed when Rules of 5:20. such filing a Resp. a at a petitioner supplement 2006) presented presented in the advanced least some prisoner petition 2:05cv340, 15, to 5:20 Virginia in Obj . Rule that be on such previously to based for of habeas that making the text of No. petition authority evidence Johnson, Va. no appears Waters' Va. rehearing suggesting a "necessarily to support dismissal though the bar advanced is exhibits Ct. court." cites nothing by Sup. is its court, even rehearing previously support and Unlike authorized that, procedural a of R. however, Furthermore, to attaching for issued rehearing." expressly maintains Respondent, proposition. for Virginia. petition already 3. appears of Virginia required filing brief court. of "petition which a supplemental state Court nevertheless record R&R a Court authorized, the the Supreme brief, for is Waters' properly before After order, filed, 2006 for WL (unpublished) to the [the] Virginia petition determination of whether the Virginia Supreme Court's decision was reasonable under § 2254(d)(2)).").1 Although that of new the exhibits record review, his there here, properly to one Waters for filed than that was none of Waters' part of the "is no than a less (1985) bound defendant Johnson, Va. 2007) Mar. law included later 26, or the fact Johnson, 515 by the rules No. the cited the F.3d 290 the See of be time a pro the se procedure not into his merely cited petition. does to nothing filing that have Supreme been Court Commonwealth, and of 230 defendant substantive law counsel"). 2007 WL 951686, the district footnote. The district by published Circuit 2008). at *39 n.16 court Judge's (4th Cir. to did criminal Magistrate Fourth 2254 concludes deemed v. § defective Court Church that 2:05cv340, (unpublished), in above affirmed made. at can a part exhibits such rehearing this exhibits existence in to are Waters instead exhibits court, represented by 1 In Green v. in state finding of exhibits and for a purposes supplemental attached (indicating by his petition the was for for rehearing supplemental exhibit in for Furthermore, an decision 213 court filed supplemental support petition rehearing, Waters' before record Virginia's for some attach the improperly reference not a rehearing. because more be state not petition the Accordingly, 208, did to to the reincorporate of Va. attached before petition expressly appears thorough found "no (E.D. error analysis'' court's that opinion opinion. Green was v. C. Claims Petitioner's One Claims allege ineffective Judge's R&R recommends objects to such review of through Three and Claim Six One through assistance of dismissal this such Claim The claims After Court and counsel. of recommendation. such matters, Three, the all Magistrate and Petitioner conducting adopts Six, a de Magistrate novo Judge's recommendation. Claim failing to argument object prosecutor's prosecutor's personal counsel was ineffective statements at passion/emotion conscience was of the during during failing to failing closing that Two and asserts to the intended portray to the asserts to closing object purportedly and for testimony Claim Claim Three for ineffective victim's opinion. jury community. statements the for the was statements closing of ineffective prosecutor's a counsel the the counsel the trial bolstered prosecutor's the to that purportedly trial invoke asserts that presented that One jury that object portrayed as trial to the Waters as liar. The Three on satisfy Supreme the the Court merits, two-part the of and Virginia concluded ineffective United established by Washington, 466 received constitutionally U.S. 668, addressed States 687 that Supreme deficient One Petitioner assistance (1984). 10 Claims Court To through failed of counsel in Strickland demonstrate test that representation, to v. he a petitioner fell must below establish an objective counsel's prejudice. Id. three of prosecutor's an 687-88. Supreme remarks 2254(d). the facts or adopts R&R as to Claim witness, with charges more verdict Waters support the contends more in federal R&R as a to at his serious a based on unreasonable U.S.C. demonstrate and dismissal this set trial prior with include a § that Court forth a attempt count objections charge of 11 a in warrant the to associated offense. trial secure a there "animate was no object a warrant. that he not-guilty charged against Waters.2 that The including initial during was prosecution offenses, in side-bar counsel single two referenced tactical serious not 28 cross-examining charged that the an to Waters' mentioned being all challenging applied, of of law. fail properly rejection was or (2) petitioner Judge claims, argument, and Three. that while than Magistrate fact the through explained on the more the One counsel question to performance the Virginia's of recommendation asserts charge caused unreasonably later modified counsel such were initially serious Defense asked defense were closing established because, Waters of counsel's reasonableness; assistance objections Claims Six ineffective during clearly law of the Court determination Waters' therefore the of Here, ineffective unreasonable application 2 at Waters' (1) performance the that that: standard inadequate concluded both evidence The to penetration." Supreme Court concluded of that Strickland. that the not on § Court an of that in the R&R as Four ineffective dismissal above, and Waters instead dismissed. both of such on the However, that and not Claims Four Petitioner's as convicted of Five expressly not noted supported by such only the Claims were and prong of properly of Six was fact or an federal the of law. 28 fails R&R unreasonably recommendation concluded Claim of established to applied, and dismissal set the Four and Five assert and claims. does R&R does law merits either rejection to the to Claim Six. assistance, of satisfy objection or on determination clearly adopts D. Claims of claim thereafter Virginia's facts therefore to Judge Waters' the such failed unreasonable 2254(d). Court forth Six application demonstrate addressed Magistrate Supreme unreasonable this Claim The based U.S.C. Virginia the to Respondent, lessor the such and on there Tr. of 12 discussed in the R&R should be dismissed, fact that based the face at trial error." was 185, the provided recommends claims claims therefore "clear charge Judge are concession, charge. counsel recommendations that Five any unlike the concedes and trial Magistrate However, object reveal that in 229. fact testimony Waters aggravated sexual was ultimately battery. E. Claims 1. Claims Seven prosecutor trial for violation of Magistrate on with such material meritorious It no permit suggests this stage issuing in the which may order note to final that such Petitioner was a presented recommendation additional evidence be considered.3 Notably, the acknowledges motion summary judgment appropriate Court. at R&R 33, It is criminal the evidence a the ECF. No. must was that it to is suppressed material any discovery prevail demonstrate: because government of any that R&R expressly may ordered by be this 29. well-established either for conclusion defendant favorable, that that The a that it in (1963). discovery, to the criminal 83 at important claims rather, Waters' by information, U.S. that, prior is way provide 373 should hearing, claims. misconduct exculpatory recommends Court allege to Maryland, evidentiary in failure R&R this recommendation all v. Judge's an Nine alleged Brady proceedings, include Summary of Brady Claims through the attorney Seven through Nine to the on "(1) that exculpatory the Brady the or evidence; defense." a a evidence impeaching; and United claim, (3) States that v. is (2) the Higgs, 3 Respondent indicates in its objections to the R&R that the Magistrate Judge improperly concluded that Petitioner's Brady claims satisfy the three-prong 735 (4th finding, test set Cir. 2011} . did not forth in However, recommend offer any suggestion that United the that States Magistrate this Petitioner's 13 Court v. Higgs, Judge make Brady claims did such 663 F.3d 726, not make such finding, nor were meritorious. 663 F.3d 527 726, U.S. 735 263, requirement, (4th Cir. 281-82 the Fourth Circuit is probability that a outcome different in "reasonable to placing At the entire in the Richardson v. (internal it is Branker, considering [the a the Greene, materiality a in "reasonable one is outcome the of inquiry evidence be a that is a withheld considered different 128, 145 In review light (4th analyzing the finding suppressed in to as that undermined. F.3d court's is this could such is resulted disclosed Strickland, favorable in reasonable term of of a have Brady heart the to v. the been confidence omitted). "item-by-item basis," by under 668 permissible would of reasonably case is evidence context verdict citations there use the whether defendant confidence although the undermine determination the the the proceeding. from if probability" sufficient Discussing proceeding had Like probability" the the Strickler recently explained: "material" defense. (citing (1999)). [E]vidence the 2011) disputed Cir. materiality, evidence "ultimately must evidence's] 2012) cumulative on be an made effect." Id. Here, Waters' failed to viewed pornography the Sheriff's Virginia.4 4 As disclose accusation prosecutor Claim of failed Office Claim Seven asserts exculpatory on to evidence television sexual abuse. disclose "sting" Nine that at some Claim time Eight purportedly that the in the R&R, 14 the that exculpatory asserts explained in greater detail that state the child-victim prior asserts evidence lured to making that the regarding Waters prosecutor at trial, prosecutor back a into failed to the prosecutor disclose exculpatory repairman had evidence been in the indicating victim's that a residence different several TV months before Petitioner.5 2. As discussed tasked with dismissal clearly was each to, or on an U.S.C. § have, determining couple federal Recent on evidence to Such evidence was used that Petitioner that of the Office, only in Virginia. Office was his by reason he was with The prosecutor's could advanced by be the had informed where the was of, a decision that facts." 28 the case import Virginia or exculpatory of law first was as Sheriff s would day support was was an a Office stay for Virginia. the inference feeling pressure because result the lured knowledge of a in Petitioner employer, imputed during he crimes. Petitioner's actual the next to Petitioner charged prosecutor claims decision arrested in in the prosecution the Virginia's controlling court's is application of Carolina and that for Court Id. was the liar guilt conjunction "sting" theory a illustrated South Petitioner result determination in of corpus "resulted state but a or this Court habeas developments weeks, above, unreasonable Petitioner way A Supreme state merits." that his Part the law" the the the Merits" in an effectively "adjudicate[ion] on whether Waters' whether was and unreasonable however, he R&R involved 2254(d). introduced the of established based that in determining of "contrary "Adjudication on of a the as contends Sheriff's him into Sheriff's arguments/ closing. 5 Such fact could be exculpatory because the child-victim did not offer a physical description trial testimony Waters during child's of and also trial as testimony did the only TV repairman the could the the man" not man establish in "TV make who when victim's 15 that an assaulted in-court assaulted she was house her during identification her. assaulted, That said, and Waters around such time. her of the was In I_) , Winston the Fourth Circuit claim on habeas incomplete," may not § be incomplete of Workman, 577 F.3d the the federal of decided Cullen decisions on 2254 (d) (1) court that include (such 1398. uses is merits. limited adjudicated materials as materials Such proceedings, to "backward-looking Court claim on for the through supported language" 16 (en that the first had not to rely the time court under the and may state not federal by fact thus habeas "review before in Court discussing discovery). and that further Supreme federal the first added). that merits" The evidence (2011), was v. bane)). "for state explained for Wilson appeared States to merits permitted 1388 be judgment court it a materially (citing (emphasis Ct. record the material had 2254(d) the obtained is new, 555 S. on a offered, United 131 § presented conclusion at the The on Winston considered Id. the in (Winston court's state petitioner under to 2009) the the Pinholster, proves state Cir. that owed the (10th I, denies 555-56 merits Winston deference at the facts." court "judgment that have 2010) state a the on could v. to Id. finding if Cir. adjudication 1292 habeas the Following § 1284, fact court development an (4th "ultimately because not claim time state that 2254(d)." on the is 535 that deference appropriate § F.3d record 2254(d) heavily in 592 concluded a Circuit's adjudicated the Kelly, record purposes Fourth v. that requires § also court Id. at 2254 (d) that "the record under review state court." such textual context intent Id. of to is Id. The statute channel (quoting as (1997)). The Court The before Shell that by § applied to a . 19] Congress' courts." U.S. 337, 341 . in . It in law to a a ." [(2002) that remedies It would be petitioner to with new habeas court and first cases what be a decision a strange state that not instance emphasize on would facts 27 state whether analyze resulted federal at . requires the Our . decision focuses ... to allow primary . relief. federal 2254 (d) (1) did. courts adjudication U.S. habeas court novo. and courts state-court in that de [537 purpose adverse under federal 519 exhaust an knew broader state leaves state federal introduced review why xthe the Co., ordinarily for evidence court Oil the discuss to by to 2254(b) overcome reviewed first Section must effectively on before demonstrates scheme the Visciotti, filing to went which claims habeas v.] contrary record "compelled whole,' with curiam)]. prisoners Court the explained: responsibility [Woodford a v. federal ... is prisoners' Robinson to Supreme interpretation the (per limited that state to ask court's unreasonably before the analysis on state court. Id. at the Supreme does 1398-99. not Toward Court apply to did all "^adjudicated Id. 1401 § habeas on prisoners AEDPA's from (quoting may doing the so." scheme Id. of claims, merits submit is The its note 2254(d)). sometimes statutory end expressly claims at the in that but the § court Accordingly, new designed statutory 17 evidence to 2254(d) instead State only issue, standard to those proceedings.'" "[a]lthough in strongly scheme such federal state court, discourage created by them Congress thus an ensures "that alternative prisoner forum made 420, Richter, of the to confirm asserting S. structure being constitutional proceedings, highly rulings, benefit which of quotation at 787 the ruling Congress, alleged for demands doubt." and that Pinholster, citations Calderon attempts to immediate Pinholster, omitted); v. sovereign S. of power Ct. see to of the punish it could be 18 United argued 1398 given and the (internal 131 S. 538, convictions constitutional wake be U.S. meet, state-court Richter, 523 state at a state-court to decisions by support evaluating Thompson, review honor 131 for resolving in "difficult state-court designed supported for defects standard part forum all authority deferential is convictions."). finality, is States' in by standard habeas the on 2254(d) state 529 Harrington principal to and see a state Taylor, jurisdiction, the developed primary ("^Federal good-faith are not which in v. ("Section 2254(d) marks the In § (quoting (1998)) both the pursue (2011) habeas are issues (Michael) challenges based habeas original); federalism, claims and in courts the in to Williams federal scheme comity, state-court a] state statutory of effort 787 of constitutional principles [is 770, sitting facts (alteration Ct. that the trying (quoting (2000)) 131 basic Because Id. 437 v. for courts insufficient proceedings.'" U.S. * [federal Ct. 555-56 frustrates offenders and their rights.'"). States that Supreme the Court's analysis in Winston Fourth I was called Circuit opinion in resolved Winston (Winston II) , that [Supreme] the into doubt Pearson, v. question 683 that Court's overrules our requirement Winston in Circuit Pinholster adjudicated 501. on Relying the Supreme merits" that on the § at did in apply be by addressed were action. on Winston in state that the petitioner's] in above a the a on-much less clarify, rule habeas and claim is Id. the at fact Circuit discussed before the in the announced "adjudicated Fourth review case indicates proceedings. the the II, case state requests court. cases, district "adjudicated In issue based the To principles, of 2012) that on the concluded Pinholster Fourth Circuit. 503. the issue at to doubt that court address standard Cir. Pinholster where state Pinholster, Synthesizing must not II cases in (4th 501-02. Winston to post-Pinholster 489 in the adjudicated-on-the-merits at law-of-the-case Court not in However, its casts the Id. merits 2254(d) did of limited the standard simply Id. is ''nothing I." indicated in F.3d disposition discussion Fourth Pinholster. such indicating in by on had court the the Fourth not Winston is whether in Circuit been 683 19 the noted adjudicated "unreasonable discovery II, threshold merits" court's for the and F.3d an at question the claims state that on the denial (emphasis at habeas the evidentiary 502 that claim merits of [the hearing" added). The Fourth refusal the Circuit to allow material produced R&R, and the finds that Seven pursuant the to to court. The analyzed Nine was reviewing Supreme each of claims. The Waters' habeas court's factual evidence, claims, Judge of explained noted, the authorize discovery Unlike submitted Supreme or or Court conduct Although his such of Claims looking review before carefully in ruling Winston, newly state and the well support as of discussed on here, submitted of and as the state there to this decision such each failed, based Virginia's an the is as claim was that, considered claims, each is not hearing requested discovery evidence no Court, evidentiary advanced 20 Court backward Petitioner properly this and individually of the merits" Brady in record, court dismissal properly why an added). Petitioner opinion followed, the Virginia by been as proceeding, on with have procedures Virginia's three combined would state this Court's court's classification the evidence findings. that court, the court suggesting state this Court previously "unreasonable." of state record, (emphasis in the that "adjudication submitted state the of reviewed Petitioner's properly Magistrate Id. Court an that appropriate filings Supreme I evidence unbefitting carefully evidence the were Pinholster, limited develop the parties through to the merits." having Winston of decision adjudication on in court state its Here, Winston nature in rendered "found failed to was in to demonstrate cannot Court the need interpret of the Virginia merits.'' See "refers the petition discussing 236 F.3d the state decision is claim"). such state state 683 considered, state court such insufficient in fact that less state rationale claims, of filed to to Waters' merits been permit such the evidence brief, the produced discovery. evidence, finding Brady its court demonstrate have the where of supplemental [could] undermine Jarvis, state additional an opinion underlying "the the submit opted adjudicate 21 no even Accordingly, merits. habeas was insufficient to state that to court 502. issued v. the an order" Bell improperly is summary the 2254 from claim); habeas evidence at resulted detailed each that (recognizing 2000) attempted an the a Supreme § multi-claim than the (noting 784 ^adjudication' evidence F.3d is did in by Court on affidavits articulate an had a this "adjudication which denying Cir. Waters of court" II, for not court at made an "one-sentence merits" less nature a petitioner's supplemental Winston if no Ct. several (4th the S. dismissing by "did Although "material in that reasons court other ^decision,' the 158 of 131 court the rejection" the and on 149, than a supported "adjudication to anything to state Therefore, analysis Richter, only discovery. individualized as ^adjudication,'" by for that claims on even the the 3. Having was an found that determine whether established the facts See 28 is decisions "bears § state that although court extreme systems") reviewing not unreasonable a Landrigan, 554 550 stops it goes state a was quotation court's incorrect substantially U.S. (indicating 465, that 473 a 131 S. S. of at case of state under whether higher (2007); factual that state-court it not unreasonable" and a complete rejected acting as criminal the a in justice In the question state court's determination Winston bar "guard omitted). threshold." see that 131 does 2254(d), believes Such relief citations § 1398. (noting already than and court 22 was of court. Pinholster, imposing the marks but clearly state that 786 for claims farther in at doubt." Ct. short Ct. "demands the ruling federal applied to a individually the conclusion no to conducts presented strong contrary malfunctions whether determination a Court determination and 131 this decision unreasonable of relitigation (internal the meet" Virginia's decision Pinholster, even of unreasonably an benefit 2254(d) proceedings," against "is court's "§ court Richter, that Court such evidence to 2254(d) merits," made the the see repeating the state of or 2254 (d) ; 1398; federal state law given mean on of "difficult be at the the light U.S.C. standard on federal in Supreme review looking Ct. the "adjudication backward S. Evaluation under § was Schriro I, v. 592 at determination F.3d is not "unreasonable" erroneous," of the above Court's claim, control must [also] the to the on merits based follows if on the or court required not a. As exhibits such exhibits thereafter to an to is submitted improperly support properly § made in hearing herein, of the brief. 474. in a his adjudication before the state See id. ("It a factual district Exhibits Waters state court hearing."). submitted habeas state supplemental supplemental 23 here, his before Four § nevertheless relief, evidentiary by permit applicant's habeas habeas at might is to deciding Id. futile. the a contained existence refutes of in appropriate be only federal standards 2254(d) an may an a allegations under twenty-four filed or weight prescribed appropriate." precludes discussed were the not merit relief, evidentiary hearing hold applicable those record record in incorrect against standards Backward Looking Review - and "merely ultimate habeas court the to is the factual otherwise previously with an relief allegations is as hearing evidentiary that standard account state is "sufficiently grant the habeas it objectively unreasonable"). granting prove if an to evidentiary if if deferential into because court, is be deferential barred the must it whether even petition, that take an petitioner it "because 2254 Notably, 2254(d)(2) determination but whether § rather, evidence The the under petition four and court. Waters exhibits attached Considering, as this Court must, backward only looking identify any unreasonable the properly review of the unreasonable application of to Claim suppressed evidence pornographic allegations ruling was failed federal premised "call log" at the on a state affidavit victim of assertion viewing that the in relied never pornographic movie In dismissing such claim, the prosecutor's informed, nor am was petition." Mo. habeas to a have until state attached on I the may log] his Waters possessed Waters I aware, of the that "I was recently provided Dismiss, petition that sworn and programming" [call that child-victim adult making Virginia's finding Specifically, viewed to of prosecutor pay-per-view was or had Court pornographic the Water's "I not prosecutor prior factual the appropriately stating: ever unaware with court the time several months before she was abused.6 the that does facts the Supreme the evidence. ordered of child-victim some that demonstrating accidentally the primarily exculpatory decision Court's law. assertion abuse, demonstrate court this Claim Seven that sexual state the programming of to allegedly Seven, exhibits, determination i. As filed Ex. "the 3. it along Waters' petitioner, by 6 Such call log does not demonstrate that the child actually viewed such movie, and it documents that when the cable representative asked the mother to verify whether the movie was actually playing, the mother indicated that she could not present. 24 check because her daughter was counsel, the during parents regarding pornographic Even than if true, state therefore did the court. Prison, 274 Va. violations which not to See, e.g., 599 in Elliott the by 476 543 (1986) within any Accordingly, Virginia made determination to of demonstrate evidence Court an that is does that facts not the the as any of to its prosecutor child-victim value by I State alleged the Brady corpus Lee that the alone finding motion, having hearsay v. Illinois, does not fall unreliable") . Supreme Court of "'unreasonable," that possessed as it containing that fact. and Sussex habeas hearsay let such hearsay, of merit"); find evidence evidentiary that viewed assertion "presumptively incorrect, the regarding without (noting exception this (noting had asserting Warden "affidavits "factually by by prosecutor] factual any v. statement child levels petitioner's was 530, Waters' a [the the afforded (2007) of supported multiple be information,'' U.S. not accepted supported was that verified memorandum need asserted gave fact contains 598, aware they was court statement state the Petitioner's became that programming" the his 2009, admitting information other November Waters any viewed failed exculpatory pornographic programming. ii. As to suppressed Claim Eight, evidence that Claim Eight the assertion demonstrated 25 that that the the prosecutor Sheriff's Office orchestrated a Supreme Court Waters "sting" failed suppressed to does not finding be was first interpretation ruling to demonstrate Waters his back of a into interpretation "set-up" by Office, and Waters in that was order to Waters the the to was nothing "lured" deponent's another come back Waters assist deposition contacted him was Furthermore, state in the testimony the into "understanding" work into colleague, Virginia that, who he in Waters contacted is one was Sheriff's Office and to locate "set-up" apprehending suggests It lured Waters the decided another was clearly Sheriff's Office by properly Although that to such "sting" identify Virginia. where 26 not the exhibit presented render does with that review, appears 1, is to Sheriff's in could was Virginia's there state. that order upon Exhibit evidence is prosecutor of orchestrated employer back that that evidence Court conjunction in the though another such employer even Office interpretation it Supreme the finding issue, petition, from of employer Waters' Waters him. his another contacted habeas Virginia, such Petitioner's Sheriff's possible that evidence Notably, Virginia that suppression the the state that or to two-fold, either the that back was "unreasonable," "incorrect." attached ruling evidence find factual one Waters demonstrate Considering Court lure Virginia's exculpatory material. this of to from also states work notable that it colleague, Waters ultimately which to get arrested. Habeas Pet. Ex. evidentiary 1 at to value orchestrated a contrast such to affidavit Office *sting' 3. the to The [the a Waters' fact Winston Id. the by be I, 592 [Waters] finding F.3d that was 554 there factual determination weight of the evidence if the state must that it a Ex. details, to did location the not as interpretation deference was not in information any not a to the sting "unreasonable." (indicating a sworn Dismiss Department due In Sheriff's given was one was a sworn than that the to to giving Office at Mo. come more Office participated Sheriff's possible, Sheriff's or employer] Although factual the The have that additional "information limited Virginia. provided case" of of Sheriff' s into Virginia." [Waters' to may the added location. employer] "unreasonable," the by the back aware to appears prosecutor not "were the that Waters "is later testimony the back that evidence court, against it [Waters] *sting.'" orchestrated See that [Waters] instruct state evidence, Department regarding of lure Such lure prosecutor the Sheriff's of to prosecutor including part demonstrate sting stating or 21. that, be to be "sufficiently is objectively unreasonable"). Moreover, factual even finding, and it is assumed 27 court that made the an unreasonable Sheriff's Office participated said in that "contrary the to, established the luring Waters back state or involved federal United "[f]or the purposes of federal application of federal (quoting Williams Accordingly, latitude under "a that Furthermore, the rule's more such 541 U.S. 652, standard be." Id. In 7 The sum, Sheriff's Whitley, imputes 627 514 "[a]s court, a Office's purposes of F.3d U.S. be when the a that is prisoner analysis. 951-52 437 (4th (1995)) the knowledge of those prosecutors regardless of actual 410 acting a and review itself." in show rule, the case-by-case v. it Id. considering the obtaining Alvarado, that was meant habeas that such the to corpus state imputed to the prosecutor Cir. on 785 (2000)). involves complaining See, knowledge). at deference general e.g., 2010) (acknowledging 28 362, "^requires must knowledge would be Brady Ct. because for such incorrect S. case of finding an Yarborough those condition state 941, 419, To Court unreasonable from outcomes (quoting meet, ^an analysis] "^ore clearly factual U.S. the of was Clarifying granted reaching 786 to federal Robinson, the (2004)). a the at 664 from for Id. in 529 cannot be Supreme 131 evaluation and difficult "is Richter, must deferential determinations.'" the different operation have by 2254(d)(1), materiality courts application 2254(d)(l). Taylor, court specificity'" leeway § is v. in [Brady of law.'" state not § it determination "unreasonable" law (Terry) are the determined U.S.C. to application materiality unreasonable as 28 similar standard, an law, States." standard, court's into Virginia,7 the United States v. (citing Kyles v. that Brady government's generally behalf to court's so ruling lacking on in understood for as highlighted "lie" told direct the by not the or was standard Office "reasonable in a to to suppressed Waters evidence was at performed his concluded that presented by involve Supreme an the was Waters Nine, 668 was of Virginia the Here, purported that had no testimony of Waters' prosecutor during the asserted because evidence Brady evidence proceeding the any whether "material," F.3d at there would been of was have disclosed 145. assertion that house call, was not the applied the well 78 6-87. trial of was Claim Nine establishing claim error matter the that had the victim's sworn by that outcome "unreasonable" Court not probability service such the at court beyond Virginia, Regardless concluding sting of an law Id. reasonably Richardson, Claim of court in was collateral highlighted iii. As a federal existing Court mother. different defense." there in validity her in disagreement." related the presented that Supreme state Sheriff's a the on the resulted to by "lie" materiality the fairminded child-victim closing, being comprehended Waters bearing purported claim justification and possibility the the a TV merit determination 29 months Supreme exculpatory. relied the prosecutor repairman several without properly that other before than Waters Court of Virginia because the evidence Such ruling, of the facts on several key did not as the pieces of evidence that have not victim's trial testimony "TV while her man7' time, was "other" victim's sworn brother the the technician repairman was black"; black incident Supreme not exculpatory must in show that justification" Here, they Court Waters the on also that identity the is state no emails prior victim's to the 131 were mother petitioner's 30 have been victim previous that Waters "other" TV stated born. that was S. her clarify victim such As this "possibility that the in court Richter, to the conclusion matter. the that in exchange the emails trial, relief the the "unreasonable." habeas the not and her brother was not by there contends to Virginia's ruling such both "was because same that email could white the prior after obtain that demonstrated perpetrator's to was (3) that, of being confirm occurred order disagreement" and and the stated, technician, as exculpatory guy the indicated mother TV at old months exculpatory the the before weeks prosecutor the by disputed home victim's of previous The were the (1) molested few not victim's the question: was a is allegedly description she only crib it (2) and into that was the perpetrator are that the a was contends at that to the his was prosecutor attributed who born; victim's described in was affidavit between that repairmen called indicated brother, downstairs TV been previously Court, "so for Waters lacking in fairminded at 786-87. exculpatory because was Ct. emails "unsure trial" and of had the made prior inconsistent assertion mother's little is statements. belied testimony sense as at victim's home the victim's brother the had any claimed ways that in the January "doubt" perpetrator: of about such even identity repairman repairman was of could came was at after pre-trial, independent have the the perpetrator, two not to he the makes shortly the in such and that if, demonstrate TV First, assertion admitted Third, the 37. affidavit which other the at 2005, emails "other" (1) freely born. exculpatory the Second, himself was Pet. prosecutor's trial. Waters the mother by Habeas been the victim's home approximately six months before the victim's brother was born;8 and black, (2) the other purportedly do not described offer assertion any that statements. may have appear repairman the victim's to make it the Court Supreme exculpatory The Hanukah" that notes Court victim "other" that was and Waters not also she was the TV repairman was emails made inconsistent interpretation, the prior emails than exculpatory, as they that Petitioner was the concludes that result whether of the the "Yeah." victim's in speculative rather review of asked responded: in the Virginia the a victim therefore of was the likely more Court white Petitioner's had one as Accordingly, for mother under inculpatory, This the support Furthermore, been not perpetrator. factual perpetrator. 8 the was the home 31 the either trial in Tr. emails an 178. of 2004. ruling were by not "unreasonable" reveals happened January in May of the transcript incident Trial home that It "right is 2005, that after undisputed whereas the factual determination established federal b. If only, this that review, remains unable of of the to for Court the above Eight, factual involved the "sting" to supplemental the Court Supreme even if the exculpatory of Office was considered,9 this 9 notes that The Court the sting suggests his to that Supp. does Brief not was location 19. effect of while Petitioner's the to return enticed as he Ex. 17 at appear to demonstrate to Sheriff's to return Accordingly, that 32 the in the it a to was not of exhibits Water's the evidence evidence Maryland, not Sheriff's supplemental prosecution of participated such the that, and supplemental from on sting finding Office Virginia, reported whatsoever number disturb was However, evidence the not Office conclusion participated such support evidence Virginia. alternative that Waters Waters Carolina Waters' in order, applicable. Sheriff's no suppressed, in supplemental would assertion entice has appropriate evidence the § Waters reverse remains the Court's that is in analysis before this relief Waters regardless Court strengthens arrest were of claims that Virginia's Accordingly, habeas evidence Sheriff's evidence material. clearly this concludes analysis assertion Petitioner's purposes Petitioner's his of exhibits supplemental strengthens in of Exhibits purposes Waters' untimely and thus Claim the that Considering no the alternatively demonstrate offered to for supplemental Virginia 2254(d). Claim Nine, As assumes, Petitioner's 2254(d) Petitioner application law. Court Court § "unreasonable" Backward Looking Review - All Supreme under or withheld in also South Office. evidence evidence state court legal analysis As because to exhibits prosecutor victim prior in to the was pornographic monthly aware Dish civil attorney point" of exhibits of to Supp. and the at sexual assault between in which the attorney, made that at least some of the more in our Confidential that Waters was from South Carolina, Memorandum enticed by the the only were, Sheriff's the months the that the child 32 had (emphasis of: (2) viewed added). (1) numerous parents had Waters a asserts letter subsequent states judge, "a child- confirmed that the the the that victim's 1-14; that and form channel Exs. home" the at the the Waters opposing Pet. take Brief that during that that supplemental asserting their stated TV representing the claim programming that a "unreasonable." information Habeas alternative Petitioner's habeas and Virginia's not documentation during discussions members, of of arrival Network programming, out his demonstrating adult bulk pornographic subscription arising of programming." bills Court exculpatory supplemental cable the Petitioner's called Waters support viewed "prosecutor Mother Seven, withheld "had Supreme regarding materiality was Claim are the the civil suit some victim's comment is "[a]t that the from a was family apparently ^intimate'10 subject matters or were Office "enticement" believed return to that to to Virginia appear to would have be "exculpatory." 10 A footnote to the word "intimate" in the letter stated: child had even been exposed to adult programming on whether she had ordered a Pay Per View adult movie whether she simply had access to adult Id. 33 programming on "Whether the the family TV; by mistake; or their system." been, discussed Brief Ex. 15 criminal Waters that *the the man' assailant, it I part, the Supp. Ex. the 24 above finding it was informed, nor am subscription to child ever attorney recounts apparently that adult accessed was a an on its conversation not a "apparently" in party, made assailant is and as as her accurate changed, Waters some at . in trial" Waters additional habeas for state statement that: the to Dismiss does channel. face both to which it does The vague the not comment 34 not at Ex. author ever of it adopt never Notably, from that the the the civil as it letter was speaker was the the a viewing unreliable who issue, to was demonstrate and such support "I 3. letter state to court victim support motion, insufficient the channel the her provider" defendant of Mo. such television Mr. Mr. pornographic the offers aware, programming." by added). sworn pornographic to investigated "unreasonable" I from Waters' information nevertheless direct, Supp. advised exposed defended evidence is "been cable above I trial" affidavit identify the contained evidence prosecutor's to your identified further inconclusive the child if which an been that assertions that the to had family's (emphasis the (3) have unable in prior he been have manner Although for was believe Brief her as and that may by and would added); child "[i]nsomuch tv prosecutor stating provided that the (emphasis attorney materials and with does not state which the of the several prosecutor the by "intimate" such unidentified speaker, speaker discussed, such matter a gun, such smoking little to further possessed from or the that the from offers prosecutor affidavit little no entirely on hearsay from other sources relayed to counsel by Waters.11 exhibits unable by § attached to reasonable even that alternative in holding amount to state that such Brady matter violation legal made the state was is not Waters findings could an is established through evidence the supplemental brief, Seven court regarding the standard and Claims "sting," 11 Water's criminal trial factual supplemental the a a to the determination participating could not if of deferential court's respect all supplemental highly state with demonstrating factual Waters' the The Alternatively, as to overcome 2254(d). considering relies or support even it that Far The offers to have" factual Accordingly, as to speculation topic. likewise claims indicates prosecutor. hand such it relayed "believed assertion on counsel Waters' or with factual apparently finally, second evidence criminal was discussed, matters Waters' for and letter's exculpatory Waters topics be were Nine. viewed unreasonable Sheriff's Office court's express "material" reasonable. and thus Therefore, counsel noted in a letter to Waters that is also labeled as "Exhibit 24" to Water's supplemental brief that counsel had no firsthand knowledge about the prosecution's possession of any information about pornographic materials. Counsel's affidavit comports with such lack of any direct knowledge on such topic. 35 this of Court the would exhibits 4. reach even same to were the this adjudicated analysis Court not that case based 2254(e)(2). conducting the an in 166 (4th meaning provision In regardless in eligible 2009) for an United use of court, appears evidentiary hearing set forth in district a court from federal habeas factual basis Wolfe § v. claim of Johnson, 2254 (e) (2)) word claims it a Supreme the immediately the develop States 3 Waters' restriction on (citing that state "precludes hearing and Court "failed" 565 explained in such customary omission, person who person has and fault, has preferred or failed failed in a sense, negligence to do duty "fail" on the implies he of To did the say not a take the necessary steps consequence, at fault to fulfill it. He is, as a and bears responsibility for the failure. conclude ... "failed" in [Accordingly], a a not is diligence, prisoner or or sense [u]nder 2254 (e) (2), claim We the failure to the some greater the unless fault, counsel. 36 used the word described. opening develop established the prisoner's Congress just clause factual there of § basis of lack of is attributable in the statutory connotes part something. if F.3d (alteration has § [the] follows: its some Cir. 2 determine statutory to Parts proceedings.'" Congress' as in merits restriction court The of the "failed State original). on the evidentiary petitioner claim 140, Such on to Petitioner would not be this conclusion Alternative Evaluation under § 2254(e) were in ultimate considered. Alternatively above, the to the Williams (Michael), further a clarified district reasonable time, not to 529 that court in investigate . when should attempt, depend U.S. . . analyzing light and principles comity and the rightful prisoner presenting, Id. at must if 437. contributing state to court, develop § the The diligent the the all prisoner absence relevant in fails a for adjudicate of full in so, and an it appears the record in the had in possession his habeas his namely, 12 the There failed are to not state majority two rule have Waters court he pieces did not of the exceptions that of develop been previously is of apply the even law, or discovered. applicable 37 a 28 case. the develop apparently support state a to § of court Waters' petitioner state U.S.C. to in factual in this in he the when in or herself diligently attached record error." Id. evidence to and unless because present rights, hearing court, to exhibits constitutional Neither of such exceptions failed proceedings several that diligently retroactive could claims that courts record evidentiary federal upholds adjudication statute's other stringent requirements are met." 12 Here, been federal himself fair the have constitutional to do at a does "state the made it diligence developing prohibits claims court; could of Court ''diligence," available state because to Supreme prisoner efforts claims of 2254(e) (2) in requirement opportunity be the information federalism, possible, "If the those 435. their "whether whether upon The prisoner's claims at have of a pursue Id. to 431-32. consider successful." of at court a predicate has new that 2254 (e) (2) (A). improperly 529 U.S. filed at diligence supplemental 437 (indicating "contribut [es] adjudication in evidentiary Winston 474 254, U.S. that claims and state I, 260 requires court, to respecting the rights."). present relevant demonstrates and apply, it state a because appears court merits, an did 13 Although has of that not a district proceedings,'" Aug. 16, Cir. 2003)}, if Wolfe 2012) court for v. (quoting such rule Monroe does Court generally not v. 38 review , to by courts,' between enforcing failing state the to court factual § 2254 (e) (2) (A) concluded that the on the claims barred consider Angelone, appear in at 1401 time F.3d the Brady be 131 S.Ct. -- to legal in and of rule claims Congress developing exceptions Hillery, state conduct Waters' first Clarke, in would may the by an federal his such judgments own this adjudicate See Pinholster, surfaced struck possession the hearing both of from of fair exhaustion the diligence even v. federal Waters' of an advance court his and in Vasquez absent lack prohibits claims support balance in (Michael), full facts state neither evidentiary 2254(e) (2).13 that evidence a ^expedite essential Because lack in could of (quoting first facts of prisoner's relevant that to careful finality federal record, (noting operative the 2254(e) (2) 549 at petitioner the § F.3d 592 Williams absence the "petitioners upsetting the See if develop deliberately withholding thus that court, (1986)) a the to state hearing court"); brief. pursuant § (explaining that "'Brady during federal 2012 3518481 WL to 323 F.3d extend to 286, material [habeas] (4th Cir. 297 (4th materials that "[s]ection does not 2254(e)(2) bar federal F. Claims the prosecutor by a Thirteen alleges prior trial. personal the jury and jury that during the Ten all and statements where during of prosecutor sentencing allege Eleven bolstering conscience the force Thirteen opinion, the have § 2254(d)(l) Eleven and Thirteen Claims improper calling the Ten, at to relief."). Eleven, made giving habeas Claims Ten, prosecutor continues her allege made that closing witness the phase misconduct testimony, improper regarding the argument community. an one by and Claim remark of to Waters' convictions. The Supreme referenced claims contemporaneous matter Court raised were on direct in procedural default sufficient to and specify on Petitioner prove to for the already by innocence or by objection Judge his Judge is possession habeas motion). 39 was no this properly alleging demonstrating his facts both default. the Magistrate conclusory, erred. above overcome either to nor to claims objected his in fails the because trial Magistrate his procedural Magistrate had during The that defaulted Waters such actual claims, concluded raised that Petitioner such how as was appeal. R&R "prejudice" Although ruling the Virginia procedurally objection concluded "cause" of See when he Fed. and R. filed Judge's fails to Civ. P. his state 72 (b) (indicating objections that to the "any the district part properly Mut. to of (unpublished) the 308 ("The that magistrate's light of Court adopts error the exists so, this Petitioner Court a direct Court has therefore out of an review not prosecutor liar or at [during present trial Claim in closing] any been 2009) 47 (4th de novo conclusory specific ruling error in In objection, because the no clear this Court R&R. abundance such his Claims of caution, claims. After in procedural Ten, Eleven, having the R&R default, and done that the and Thirteen. Claim Twelve Twelve that the insofar character as recommendations.'"). recommendation overcome 6. a 44, and Petitioner's of the dismisses conduct of the has Cir. not to and Washington F.2d general and v. 687 need court that (4th Judge's of adopts Petitioner's the findings face novo Smith 708 makes written determinations disposition Johnson, court nature novo 707, v. "specific recommendations" added); party Magistrate the judge's Appx. a proposed the de de Qrpiano not Alternatively, conducted Fed. conclusory on only make (emphasis xwhen advance and [district] do must findings must to") however, objections party magistrate (quoting 1982)) review, judge the FA, a proposed objected Bank Cir. that as alleges prosecutor the witnesses 40 misconduct . called Petitioner . . ." by the "Petitioner did Habeas not Pet. a testify at 43. Petitioner's Office would that stay The in he for statement, was purported he was a procedurally Petitioner's recommended noting that that failure to that disclose counsel habeas the as it motion. motion to Magistrate it was to was the Sheriff's where Waters of Waters made insufficient Magistrate participated other based such back a to to recommendation failure Waters demonstrates that that that on to and/or Sheriff's demonstrate the prosecutor's Virginia. and denied, excuse alleged the time however, be to Office's Respondent recommendation, "sting," evidence Twelve caused about Twelve first Judge, the such that Judge's evidence in to Claim the "cause" prosecutor's Waters for Claim object knowledge that Magistrate alleged Judge the raised dismiss information lack there participate, after concluded The plausibly to a of defaulted objected the told Carolina Shortly Virginia enticement Office weeks. South Court alleged is to he in Virginia. exculpatory defense way that arrested Waters The fact his was contemporaneously statement. the on couple was Supreme "lie" arguing the even that Sheriff's if it Waters still issue, this did told lie. Having finds that Court of conducted Claim Twelve Virginia procedurally a de novo should review be appropriately defaulted. A this dismissed concluded review 41 of of the because that the such allegation Court Supreme claim in was Claim Twelve that reveals it during was closing character prosecutor's Twelve that Waters' improper her present that the evidence the comments as argued apparent to that the an Therefore, and by to and objection cannot does was of establish Claim basis about prosecutor's have sufficient "cause" a Virginia. would made the in to the Twelve been was or the on back "liar" testify known, provided have a assert improper have Claim assertion statement not nature therefore could didn't Waters improper in him such should lure Waters defense Waters because or the call to to Waters statement purportedly limited Waters knew, sting Accordingly, so because prosecutor's Office is prosecutor opinion. prosecutor Sheriff's the argument personal that the for argument notice during for been trial. not having advanced a contemporaneous objection during trial.14 Because prosecutor's counsel's Office defense knowledge Claim Court could labeling statement sting, Supreme counsel Waters of the details have a of objected "liar" the Twelve was appropriately and it is again the regardless alleged Virginia, of to of Sheriff's dismissed dismissed by by the this Court. 14 As previously discussed not err concluding in contemporaneously assistance. object performance. fails demonstrate to evidence the that did Therefore, counsel's exculpatory herein, not defense rise "cause" the as the be Virginia failure of based discussed, suppressed did to ineffective established alleged Sheriff's 42 of level previously prosecution regarding the Court counsel's to cannot Additionally, that Supreme any Office on Waters material sting. IV. After parties' carefully objections determinations objected to. findings and with they were is to Court now record as it forth GRANTED, and R&R Magistrate instead and be permitted this that at detail of Court time. above, Waters' Judge did R&R that were approves the to this claims extent to not the indicate Court are to hereby on discovery based for motion that passed that warranted Respondent's the the recommended Accordingly, habeas novo As concludes is de claims. before dismissal this the simply claims, such all in which but the and Waters' the of and made adopts of exists in hereby R&R Court portions forth discovery of the this set meritorious, unnecessary set respect detailed dismissal claims, validity the responses, recommendations discretionary the considering and The recommended remaining CONCLUSION on the the reasons dismiss DENIED is and DISMISSED. A order petitioner in issues a § a 2254 "a "that To have proceeding obtain of such a showing § petitioner reasonable judge appeal or circuit a of denial When this would 43 28 the of satisfies jurists a to certificate, 2253(c)(2). U.S.C. right appealability." 28 a the unless substantial right." merits, not "certificate 2253 (c) (1) (A) . make does is standard by the final justice U.S.C. petitioner relief find a § must constitutional denied on the demonstrating district court's assessment Slack v. denied of the constitutional 529 McDaniel, on both 484 procedural that that claims the the U.S. grounds, dispositive motion states constitutional 904, Cir. at {4th a (2000). debatable United 2012) "must ruling claim States v. is of relief is demonstrate the (citing wrong." debatable, Morris, (unpublished) or When petitioner procedural a right." 904 473, debatable denial 47 5 of Fed. Slack, and a Appx. 529 U.S. 484-85). Finding that certificate See R. of Waters appealability Governing (indicating that certificate of resolving a has § § a 2254 not as to his court appealability in standard, § 2254 motion U.S. Dist. must when motion such in Proceedings district 2254 satisfied either a manner DENIED. Cts. grant issuing a is a or 11 (a) deny final adverse a order to the petitioner). Petitioner appealability from R. the Gov. United § Petitioner the to Court the is 2254 is denied States of Courthouse, 600 thirty days (30) to Appeals, Clerk by that this Court the seek he must United Granby a from the date he Appeals for U.S. forward for a 44 this the of Circuit. ll(a). notice Court, of certificate If appealability Virginia, Order. a Fourth Cts. written District certificate seek Dist. Norfolk, of a may certificate States Street, because Court, of Proceedings intends of ADVISED from of appeal United States 23510, within The Final Clerk Order It is to so is DIRECTED Petitioner, to send and to a copy counsel of for this Respondent. Mark September and ORDERED. United Norfolk, Opinion 2012 Virginia 45 States S. Davis District Judge
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