Swinson v. Clarke, No. 3:2014cv00100 - Document 24 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Read Opinion for details. Signed by District Judge Robert E. Payne on 03/12/2015. (ccol, )
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Swinson v. Clarke Doc. 24 p p IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA r\ p\\ L MAR 13 2015 Richmond Division CLERK. U.S. DISTRICT COURT WILLIAM BOYD SWINSON, RICHMOND. VA Petitioner, V. Civil Action No. 3:14CV100 DIRECTOR, DEPARTMENT OF CORRECTIONS, Respondent. MEMORANDUM OPINION William Boyd Swinson, submitted a 28 U.S.C. a Virginia inmate proceeding pro se, § 2254 Petition," ECF No. 1) Circuit Chesterfield Court Court"). Report of On January and challenging his 29, Recommendation 2015 document County the (hereinafter "§ 2254 2009 convictions (hereinafter Magistrate recommending Respondent's Motion to Dismiss. thirty-page petition that "Circuit Judge the in the issued Court a grant Swinson has filed a rambling "address[ing] some but not all of the grounds in his original petition" and "all of the specific legal and factual deficiencies of the Magistrate Judge's (Objs. 1, ECF No. 23.)^ For the reasons that follow, findings." Swinson's objections will be overruled, the Motion to Dismiss (ECF No. 9) will be granted, Swinson's Motion for Discovery (ECF No. 16) and ^ The Court corrects the capitalization in the quotations from Swinson's objections. Dockets.Justia.com Motion for Evidentiary Hearing (ECF No. 17) will be denied, and the action will be dismissed. I. The Magistrate BACKGROUND Judge made the following findings reconunendations: Swinson argues entitlement to relief on the following grounds: Claim 1 Insufficient evidence existed to convict Swinson. Claim 2 The Court of Appeals of Virginia erred in Claim 3 affirming Swinson's convictions. The Commonwealth suppressed material exculpatory evidence. Claim 4 Counsel rendered ineffective assistance by failing to file a motion for new trial or writ of error after discovering the Brady v. Maryland, 373 U.S. 83 (1963) violation and by failing to raise the Brady violation on Claim 5; appeal. Counsel rendered failing to Crowder ineffective appropriately Whitt about identify Swinson as assistance question whether the by victim he could person who robbed him. Counsel rendered failing Claim 6: to introduce ineffective require the that actual BB assistance the gun by Commonwealth at trial not just a photograph depicting the gun. Counsel rendered failing Claim 7; to ineffective introduce a assistance receipt that by would support Swinson's alibi defense. Claim 8: Counsel rendered failing to statements Swinson's Claim 9: ineffective introduce that would assistance Swinson's have by bank supported alibi defense. Counsel rendered failing to ineffective request a assistance continuance non-appearance of material witnesses. for by the and Claim 10: Counsel rendered ineffective assistance by failing to obtain certain phone records that would support Swinson's alibi defense. Claim 11: Counsel rendered ineffective assistance by failing to elicit testimony from Swinson's physician to demonstrate that Swinson had a physical disability that would make it impossible for him to run and climb a fence. Claim 12: Counsel failing rendered ineffective assistance by to "bring to light the accurate measurements from the crime scene . {§ 2254 Pet. Attach. 6, ECF No. 1-1.)^ Claim 13: Counsel rendered failing to introduce ineffective file a evidence assistance motion to of intent establish an by to alibi defense. Claim 14: Counsel rendered ineffective assistance by failing to question victim Rose Whitt about whether she could identify person who robbed her. Swinson as the Respondent has moved to dismiss the action (ECF No. 9) . The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons that follow, it is RECOMMENDED that Respondent's Motion to Dismiss be GRANTED and that the § 2254 Petition be DISMISSED. A. Procedural History After a bench trial, the Circuit Court convicted Swinson of statutory burglary with intent, two counts of robbery, and three counts of use of a firearm in the commission of a felony. sentenced Swinson to an active years of incarceration. CR09F000-85-01 to -06, The Circuit Court terra of twenty-eight Commonwealth v. Swinson, Nos. at 1-2 {Va. Cir. Ct. Sept. 21, 2009). Swinson appealed, arguing that insufficient evidence existed to sustain his convictions. Swinson v. Commonwealth, No. 2411-09-2, at 1 (Va. Ct. App. ^ The Court employs the pagination assigned by the CM/ECF doclceting system in citations to the Attachment to the § 2254 capitalization submissions. Petition. in the The Court quotations corrects from the Swinson's Aug. 3, 2010). affirmed. Id. at 1, 7. of Virginia Swinson v. 20, The Court of Appeals of Virginia Thereafter, the Supreme Court refused Swinson's petition Commonwealth/ No. 101669, at for 1 appeal. (Va. Jan. 2011). Swinson filed a petition for writ of habeas corpus in the Circuit Court raising claims similar to Claims 3 through 14 in the present § 2254 Petition. See Memorandum of Law in Support of Habeas Corpus at 8-56 (as paginated by the Circuit Court), Swinson v. Clarke, No. CL12HC-91 (Va. Cir. Ct. filed Dec. 20, 2011.) The petition. Circuit Swinson v. Court denied Clarke, No. Swinson's habeas CL12HC-91, at 15 (Va. Cir. Ct. July 19, 2013). The Supreme Court of Virginia refused Swinson's petition for appeal. Swinson v. Commonwealth, No. 131589, at 1 (Va. Jan. 9, 2014). B. Analysis 1. Exhaus'tion and Procedural Default (Claim 3) The exhaustion requirement "'is considerations of federal-state comity,'" rooted in and in the Congressional determination reflected in the federal habeas statutes "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F. Supp. 2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard V. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies relief. 844-48 before he can apply for federal habeas See 0'Sullivan v. Boerckel, 526 U.S. 838, (1999) . As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate ^^''opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) {additional internal quotation marks omitted). "To provide the State with the necessary ^opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." (quoting Duncan, demands 513 U.S. at 365-66). that a petitioner must Fair presentation present "'both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Lonqworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Cir. 2000)). been exhausted Corcoran, 220 F. 3d 276, 289 (4th The burden of proving that a claim has in accordance with a "state's procedural scheme" lies with the petitioner. chosen Mallory V. Smith, 27 F.3d 991, 994, 995 (4th Cir. 1994). "A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). also procedurally A federal habeas petitioner defaults claims when he or she "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l). The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989). The Virginia courts refused to review the substance of Claim 3 in the present § 2254 Petition, because Swinson could have, but failed to raise this claim on direct appeal. Swinson v. Clarke, No. CL12HC-91/ at 4 (Va. Cir. Ct, July 19, Parriqan, 205 S.E.2d 680, 2013) (citing Slayton v. 682 (Va. 1974); Elliott v. Warden, 652 S.E.2d 465, 467 constitutes procedural an rule adequate when so (Va. 2007)).^ and Slavton independent applied. state Mu^Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Thus, Swinson procedurally defaulted Claim 3. To the extent that Swinson asserts that ineffective assistance of counsel constitutes cause to excuse his default of Claim 3, that contention lacks merit for the reasons set forth infra Part B.4. Accordingly, it is RECOMMENDED that Claim 3 be DISMISSED. 2. In Applicable Constraints upon Habeas Review order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." The Antiterrorism and Effective 28 U.S.C. § 2254(a). Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United S t a t e s ; or ^ Because the Supreme Court of Virginia summarily refused Swinson's petition for appeal, the Court presumes that the Supreme Court of Virginia refused the claims for the reasons stated by the Circuit Court. See White v. Johnson, No. 2;05cv365, 2006 WL 2520113, at *4 (E.D. Va. Aug. 25, 2006) (citing Ylst V. Nunnemaker, 501 U.S. 797, 803 (1991)). (2) resulted in a decision that 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). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v_^ Landriqan, 550 U.S. 465, 473 (2007) (citing Williams V. Taylor, 529 U.S. 362, 410 (2000)). 3. Sufficiency of the Evidence (Claims 1 and 2) A federal habeas petition warrants relief on a challenge to the sufficiency of the evidence only if "no rational trier of fact could have found proof of guilt beyond Virginia, question a reasonable 443 U.S. in 307, conducting 324 such doubt." (1979). a Jaclcson v. The review relevant is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Johnson v. Louisiana, Id. at 319 (citing 406 U.S. 356, 362 (1972)). The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. at 318. In Claims 1 and 2, Swinson contends that insufficient evidence existed to convict him because "the circumstantial evidence identifying the petitioner as the perpetrator of the offenses is not sufficient to exclude every reasonable hypothesis of innocence." (Mem. Supp. § 2254 Pet. 4, ECF No. 2.) Swinson argues that the Whitt and Crowder Whitt, two elderly victims. Rose never identified Swinson as the robber, "an essential element of the offenses." (Id. at 5.) Swinson contends that Crowder Whitt's description of the robber "as short and stumpy" demonstrates that the robber "must have been somebody other than the Petitioner" who is "6'1" tall and weighed 350 pounds." ( ^ at 6.) Swinson also points to Rose Whitt's identification of a person other than Swinson as the robber to demonstrate that he was not the robber. (Id.) The Court of Appeals of Virginia aptly summarized the evidence of Swinson's guilt as follows: On April 8, 2008, at approximately 11:00 a.m., appellant's sister arrived at the home of her landlords, the victims, C.W. and R.W., to pay her monthly rent in cash. the sister stopped left at the victims' appellant's 6144 Strathmore Road, the victims' home. home, a When home, a she duplex at short distance from The sister told appellant's wife that she had just paid her rent to the victims. During this conversation, appellant was somewhere in the house. The sister routinely paid in cash and placed the money on the victims' kitchen table. About ten to fifteen minutes after the sister left the victims' house, C.W. was sitting in the kitchen several credit cards, on the kitchen table. through the kitchen. back C.W. "Mslhort forties, and and with his wallet, and a portable phone Suddenly, a man burst screen door described stumpy" wearing the into man the as a white male, in his a hooded sweatshirt with the hood pulled up. His face was not covered. Neither victim ever identified appellant as the identified another but he was later R.W., intruder. Later, R.W. individual as the gunman dismissed as a suspect. in a subsequent television interview, described the intruder as "a man in his 20's with a hooded sweatshirt." The victims had never seen the intruder before. At trial, C.W. testified that only those people familiar with the couple would know that they did not use the front door and that they normally asked visitors to come to the back door. The intruder pointed a black pistol at R.W.'s chest, their "money." the kitchen telling her that The gunman first table. When the he wanted looked at victims told the gunman that they did not have any money, he demanded R.W.'s purse. The intruder, pointing his gun at C.W., took C.W.'s wallet, credit cards, and a phone from the table. He then followed R.W. through the house as she looked for her purse. After finding R.W.'s black purse, and taking a cell phone and a camera, the gunman walked into the yard with the stolen items. He stopped to look through the purse and then walked towards Strathmore Road. R.W. called 911, then followed the intruder in her automobile. Police Officer victims' home less Encinas arrived at the than one minute after receiving the report of the robbery. C.W. pointed him in the direction that the gunman and his wife located R.W., attention three to had who a hundred gone. Officer Encinas directed the officer's white feet male, away, hooded sweatshirt and blue approximately a blue sweatpants. wearing The suspect was climbing an embankment to scale a fence behind the Strathmore residences. The gunman was less than one-tenth of a mile from the victims' facial home. The officer made no identification. The suspect scaled the fence, a gun in his right hand. carrying After he cleared the fence, the gunman bent over and did "something in the leaves with his hands." Officer Encinas noticed that when the gunman stood up he no longer had a gun in his hand but he was still carrying a black The gunman walked away towards duplexes on Strathmore Road. purse. the brick Officer Encinas described the man he saw jumping over the fence as a "heavyset" "white male," wearing up. a hooded sweatshirt with the hood of the 4 Officer gunman. Encinas lost sight A K-9 unit arrived and tracked the scent from the point where the gunman jumped over the fence. The tracking dog led police to an area less than two feet from where " The police briefly detained a different suspect, not appellant, released. in the general vicinity, who was later Officer Encinas had seen the gunman crouched down. There, in the backyard of the brick duplex house at 6144 Strathmore Road, appellant's residence, officers recovered C.W.'s credit cards, black BB gun. his home phone, and a The tracking dog continued to follow the scent for another fifty yards. The last location where the dog was able to follow the scent was in appellant's backyard. C.W. identified the black BB gun recovered from appellant's backyard as "similar" to the weapon displayed during the robbery. credit He also cards, identified the camera, and cell those taken during the robbery. recovered phone as Appellant's DNA was found on the BB gun. Appellant denied any involvement in the robbery. No fingerprint evidence implicated appellant in the offenses. A search of appellant's residence six months after the incident revealed no items stolen from the victims. of Appellant was convicted of two counts robbery, statutory burglary, and three counts of use of a firearm in the commission of a felony. Swinson v. Ct. App. Commonwealth, Aug. 3, No. 2010) 2411-09-2, (alteration at in 2-4 (Va. original) (footnote number altered). In finding sufficient evidence to convict Swinson and rejecting his claim, Virginia explained:^ 5 Swinson claims that the the Court Virginia of Appeals Court of of Appeals erred in affirming his conviction under the Virginia standard for sufficiency, because the evidence failed to exclude every reasonable hypothesis of his innocence. On federal habeas review of a state conviction, Jackson provides the only appropriate standard of review for challenges to the sufficiency of the evidence. See Jackson, 443 U.S. and 324 (explaining that "the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable 10 Appellant's sufficiency of challenge the evidence to is whether he was the perpetrator, the limited to not whether the offenses occurred. • • • The • thrust argument is identified of that him appellant's neither as the of sufficiency the gunman. victims Appellant further points to R.W.'s misidentification of a suspect, and the inaccurate description of the perpetrator given by both victims. We agree that there was no direct evidence identifying appellant as the gunman, but appellant's argument ignores the circumstantial evidence adduced by the Commonwealth. We first misidentification note that R.W.'s of another suspect, and any inaccurate description of the intruder, concerns and the the credibility weight testimony. of afforded "The the witnesses the victim's credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,732 (1995). Peterson v. Commonwealth, 225 Va. 289, 295, 302 S.E.2d 520, 524 (1983) (stating that the credibility of witnesses and the weight to be given identification testimony is a matter for the jury). We review the facts "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable Glenn v. Commonwealth, inferences." 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (^ banc) (citation omitted), aff' d, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to "give due weight to inferences drawn from those facts by resident judges . doubt"). . . The Court omits any discussion or reference to the Virginia standard. 11 Malbrouqh v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (citation omitted). It was reasonable for the fact finder to conclude the intruder knew the victims' habits. He entered the backdoor, indicating he was aware of the victims' pattern of using the back door as the sole entry point. When the perpetrator entered and demanded money, he first looked at the kitchen table, where appellant's sister routinely deposited her rent money. It can further be inferred that appellant knew that the victims had recently received cash from appellant's sister. The intruder broke into the victims' home between ten and fifteen minutes after appellant's sister left the house and told appellant's wife that she had just paid her rent. Appellant was present somewhere was in made. the house The when intruder that did statement not look for jewelry or other valuables, only cash, indicating the intruder knew cash was on the premises. After the robbery, the intruder ran towards appellant's house and discarded some of the stolen items, including the gun used in the robbery, in appellant's backyard. Appellant's DNA was found on the BB gun. While there was testimony appellant's or nine-year-old] stepson owned a [eight toy gun, there was no testimony the black BB gun was the one owned by the stepson. It must be remembered that a "similar" gun was seen in the hands of the gunman just moments before the police recovered it on the ground. The fact finder rejected appellant's explanation of why his DNA was found on the gun. DNA evidence clearly indicates at some point in time, appellant had touched the BB gun. Other evidence proved that the gunman had a gun of like appearance in his possession just moments before the gun was discovered in appellant's backyard. . . . From the intruder's entry into victims' residence, were had until found been an in the gun appellant's unbroken and stolen items backyard, sequence 12 there pointing to appellant as the gunman. R.W. followed the intruder as he left the house. She pointed out the gunman to the officer who followed the gunman over the embankment and fence. He saw the gunman where leaves the reach weapon into and a pile stolen of items were recovered. We therefore conclude that the trial court did not err in finding the circumstantial evidence sufficient to convict appellant of the crimes charged. Id. at 4-7 (third omission in original). Even without a positive eyewitness identification of Swinson as the perpetrator, the Circuit Court found the testimony of Officer Encinas and both victims supported a finding beyond credible, and a reasonable doubt that Swinson was the person who robbed the victims. Thus, after reviewing the evidence and credibility determinations "in the light most favorable to the prosecution, [a] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (citing Johnson, 406 U.S. at 362). For the same reason, any claim that the Court of Appeals of Virginia erred in affirming Swinson's convictions lacks merit. Accordingly, it is RECOMMENDED that Claims 1 and 2 be DISMISSED. 4. a Ineffective Assistance of Counsel (Claims 4-14) To demonstrate ineffective assistance of counsel, convicted defendant must show first that counsel's representation deficient was deficient performance Strickland v. and, second, prejudiced Washington, 466 U.S. that the 668, the defense. 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "'strong presumption' that counsel's strategy and tactics fall professional 'within the assistance.'" wide range Burch v. of reasonable Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a defendant to "show that there is a reasonable probability errors, that, but for counsel's unprofessional the result of the proceeding would have been 13 different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. at Id. 697. In Claim 4, Swinson argues that counsel rendered ineffective assistance "for her failure to file a motion for a new trial, to bring the Brady violation up on appeal[,] or to file a writ of err[or] after she discovered that the Commonwealth exculpatory evidence . . . ." had suppressed (Mem. Supp. § 2254 Pet. 16.) Brady and its progeny "require [ ] a court to vacate a conviction and order a new trial if it finds that the prosecution suppressed materially exculpatory evidence." (4th United States v. Cir. 2011) . relief under Brady, existence of King, Accordingly, 628 in order a litigant must "(D evidence favorable to F.3d 693, the to 701 obtain identify the accused; (2) show that the government suppressed the evidence; and (3) demonstrate that the suppression was material." Id. (citing Monroe v. Anqelone, 323 F.3d 286, 299 (4th Cl7. 2003)). Swinson identifies this purported material, exculpatory evidence as "the police summary report written by Officer Encinas which contained the eye witness statement of Barbara Santos which should have been given to the defense." (Mem. Supp. § 2254 Pet. 16.) Swinson claims that "Ms. Santos's [statement] establishe[d] that the suspect was still in possession of his gun after Officer Encinas lost sight of him running towards Strathmore Road" and "establishe[d] that the BB gun found in Petitioner's back yard was not the gun used in the robbery and that someone other than the Petitioner committed the 17 (spelling corrected).) robbery." Swinson contends counsel learned of Ms. Santos's statement when she read the presentence report. (Id.) In rejecting this claim, the (Id. that to police Circuit explained: The Court finds the petitioner has failed to show that Santos' statement was material and exculpatory, as he must to prove he was prejudiced by trial counsel's failure to 14 at Court raise this The issue in the trial petitioner statement as has only court. identified that she Santos' witnessed the police pursuit, not that she had exculpatory information to show the petitioner was not the perpetrator of the offense. The petitioner has not offered an affidavit from Santos that demonstrates either that she would have testified on his behalf, or that she would have offered favorable testimony. The Court finds this failure to proffer fatal to his claim, as, without this information, the petitioner cannot meet his burden of showing he was prejudiced by trial counsel's failure to raise this Brady claim. Burqer, 483 U.S. at 793; Muhammad, 274 Va. at 19, 646 S.E.2d at 195. Accordingly, • the Court finds either the prong petitioner of the cannot demanding meet Strickland standard. Swinson, No. CL12HC-91, at 14 (Va. Cir. Ct. July 19, 2013) . The Court discerns no unreasonable application of the law and no facts. unreasonable determination of the See 28 U.S.C. § 2254(d) (1)-(2) . The Presentence Report that Swinson contends alerted him to the existence of material and exculpatory evidence provided: Officer Barbara Encinas Santos coming down went back and interviewed who stated that she was Strathmore Road from the direction of DSCR Logistics when she saw a white man waving what she thought was a gun. She stated she wasn't going to stop and she floored her vehicle. Barbara Santos stated that she pulled into her driveway and called 911. Ms. Santos police officer, Encinas. Ms. stated that she saw a which was in fact Officer Santos said she saw a red pickup truck drive down Strathmore Road, two to three houses further south and a male dressed in all blue get out of the vehicle and the vehicle took off at a high speed. Ms. Santos saw the suspect slow pace from the scene. run a very Ms. Santos said she never saw the person who was 15 at riding in the red pickup get into this vehicle, but she states it was the person she saw waiving the gun. Presentence Report at 2-2, Nos. CR09F000-85-01 through Commonwealth v. Swinson, 06 (Va. Cir. Ct. filed Sept. 10, 2009). Counsel explains that "[t]he identity (not statement per se) of Santos was first disclosed in the pre sentence report . . . Motion to Dismiss Ex, 6, at 2, Swinson v. See Clarke, No. CL12HC-91 (Va. Cir. Ct. filed Feb. 28, 2012). The Court fails to discern how this vague, confusing account "establishe[d] that the suspect was still in possession of the gun after Officer Encinas lost sight of him running towards Strathmore Road." (Mem. Supp. § 2254 Pet. 17.) The report contained no specific information about where Ms. Santos saw "a white man waving what she thought was a gun." See Presentence Report at 2-2, Swinson, Nos. CR09F000-8501 to -06. In addition, counsel wisely eschewed advancing a post-conviction or appellate challenge to Swinson's convictions based on the third-hand account of Ms. Santos summarized in the Presentence Report. Contrary to Swinson's assertion, the report provided no material, exculpatory evidence that Swinson was not the robber. Thus, counsel cannot be faulted for failing to challenge the conviction on this ground. Counsel could have reasonably concluded that any testimony Ms. Santos may have provided would have had little impact on the Circuit Court's finding of guilt. Additionally, counsel also could have reasonably concluded that Ms. Santos's testimony would have provided further support that Swinson was the robber. Based on the summary in the Presentence Report, Ms. Santos likely would have testified about why the suspect seemingly disappeared, potentially could have identified Swinson as the robber, and based on her statement that she "saw the suspect run at a very slow pace from the scene," further confirmed that Swinson, a 350-pound man, was the suspect. Presentence Report at 2-2, Swinson, Nos. CR09F000-85-01 to -06. from Swinson also counsel's fails to failure demonstrate any to challenge prejudice Swinson's conviction in a post-trial motion or on appeal based on the summary of Officer Encinas's investigation. In light of the substantial circumstantial evidence demonstrating that Swinson was the robber, Swinson 16 fails to establish that, but for counsel's error, the Circuit Court would have found him not guilty. Accordingly, it is RECOMMENDED that Claim 4 be DISMISSED. In Claims 5 and 14, Swinson faults counsel for failing to properly cross-examine the victims, Rose and Crowder Whitt, about whether they could positively identify Swinson as the robber. In rejecting these claims, the Circuit Court explained: The record demonstrates trial counsel called Rose Whitt as a defense witness, and elicited on direct examination that the victim had identified another suspect as the perpetrator from photographs she found on the sex offender registry. Trial counsel used a transcript of a conversation Rose Whitt had refresh with her a television recollection of reporter the to physical description she had given to that reporter. On direct Crowder examination Whitt by testified the he Commonwealth, did good look at the perpetrator, not get a and that he could "not really" tell the Court whether or not the petitioner was the perpetrator. On cross-examination, trial counsel elicited from Crowder Whitt that police never asked him to identify any suspects in the case, and that he had not seen any photographs of suspects. Trial counsel additional did questions identification, not ask any regarding the because she did not want to give the victims the opportunity to positively identify the petitioner as the perpetrator at trial. Developing a defense strategy for trial, which necessarily includes deciding the questions to ask the witnesses at trial, falls solely within defense counsel's discretion. Gonzalez v. United States, 553 Cross-examination U.S. is a 242, matter 249 of (2008). trial strategy which cannot be second guessed in a collateral Riddle, 846 habeas 222 Va. proceeding. 428, 433, (1981). 17 Johnson v. 281 S.E.2d 843, Swinson, No. unreasonable unreasonable U.S.C. CL12HC-91, at 5. application of determination of The Court discerns no the law and no the facts. See 28 § 2254(d) (l)-(2) . Swinson demonstrates neither deficiency of counsel nor resulting prejudice. Counsel elicited testimony from both victims from which a trier of fact could infer identify that Swinson explain how any neither as victim the could robber. further affirmatively Swinson questioning of would have reinforced that inference. fails to the victims Accordingly, it is RECOMMENDED that Claims 5 and 14 be DISMISSED. In Claim 6, Swinson faults counsel for "fail[ing] to require that the actual BB gun recovered from the Defendant's back yard be shown in court . . . instead of allowing the Commonwealth to show a photograph of a gun . . . ." (Mem. Supp. § 2254 Pet. 21.) Swinson argues that the photograph failed to accurately depict the size of the gun and that if Mr. Whitt had seen the actual gun, he would have realized it was not the gun the robber used. (Id.) Swinson argues that Mr. Whitt testified that the gun used in size" but that ''[t]he BB back yard [was] very large . In finding that this by the robber "was medium gun found in [Swinson's] . . ." (Id.) claim lacked merit, the Circuit Court concluded "that tactical decisions, as deciding which objections to raise at trial, such are part of the development of the defense strategy and lie solely within the province of counsel." Swinson, No. CL12HC-91, at 6-7. This Court agrees. The evidence established that the photograph of the firearm depicted the firearm that police recovered along with other stolen items from Swinson's back yard. Thus, counsel reasonably eschewed objecting to the introduction of the photograph of the gun. Swinson also fails to demonstrate how requiring the Commonwealth to introduce the actual firearm would have altered the victim's identification of the BB gun. At most, the victim testified that the photograph depicted a firearm "similar to" the firearm used by the robber. (See June 29, 2009 Tr. 28.) Swinson demonstrates resulting prejudice. that Claim 6 be no deficiency Accordingly, it of is counsel or RECOMMENDED DISMISSED. In Claims 7, 8, 10, and 13, Swinson faults counsel for failing to introduce certain evidence that would purportedly support Swinson's 18 alibi defense. Specifically, in Claim 7, Swinson claims that a "purchase order receipt from Omega [Meats] dated April 8, 2008 . . . [would] show that the Petitioner was approximately scene when seven the (7) miles robbery took away from crime (Mem. place." the Supp. § 2254 Pet. 24 (spelling corrected) (citation omitted).) In Claims 8 and 10, Swinson faults counsel for failing to introduce bank and phone records further supporting Swinson's contention that he was at Omega Meats at the time of the robbery and demonstrating that, based on his bank balance, Swinson had no financial Similarly, incentive in Claim 13, to rob the victims. Swinson faults trial counsel for failing to file a motion of intent to introduce evidence to establish an alibi and, subsequently, failing to offer any of Swinson's alibi evidence at trial. In rejecting Claim 7 of the instant § Petition, the Circuit Court explained: The petitioner has not produced a this [Omega Meats] receipt without this copy, the determine whether this copy of for the Court receipt Court; cannot would have proved the things the petitioner claims. Burger [v. Kemp, 483 U.S. 776, 793 (1987)]; Muhammad [v. Warden, 274 Va. 3, 19, 646 S.E.2d 182, 195 (2007)]. The Court further finds trial counsel's interview with the company representative suggested the receipt may have been fraudulent, as the representative could not authenticate it, preventing trial counsel from introducing it at trial. Smith v. Commonwealth, 280 Va. 178, 183-84, 694 S.E.2d 578, 580-81 (2010) (discussing the requirements for introducing business records at trial by a custodian of the record, who could identify the document as one made in the regular course of business, provided and the that such necessary identification showing of trustworthiness that allowed the admission of the document over a hearsay objection). The Court finds the petitioner cannot meet either prong of the demanding standard. 19 Strickland 2254 Swinson, No. CL12HC-91, at 7. In finding that Claim 8 of the instant § 2254 Petition lacked merit, the Circuit Court explained: The petitioner has not produced a copy of these [bank] statements for the Court; without these copies, the Court cannot determine whether these statements would have proved the things the petitioner claims. Burger, 483 U.S. at 793; Muhammad, 274 Va. at 19, 646 S.E.2d at 195. Further, the Court finds trial counsel examined the statements, and, contrary to the petitioner's assertions in his habeas corpus petition, the statements showed he maintained modest balances, had at least one overdraft within one month of the offense, and could not establish either the time of the transactions or whether those transactions were done in person. The Court finds the petitioner demanding Strickland counsel's performance he was prejudiced as cannot show under the standard either that was lacking, or that a result of counsel's actions. Id. at 8. Finally, in explaining and rejecting Claims 10 and 13 of the present § 2254 Petition, Court the Circuit found: The petitioner records would have claims [the phone] shown the petitioner was at Omega Meats at the time of the robbery using their phone to call his home and his wife's cell phone, and would have substantiated the petitioner's alibi. . . . [P]etitioner [also] alleges trial counsel was ineffective for failing to file a motion of intent to introduce evidence to establish an alibi for the petitioner, pursuant to Rule 3A:11(c), which the petitioner believed was going trial, to and for evidence at be the primary defense at failing to offer any alibi trial. The Court finds these claims without merit. of The petitioner has not produced a copy these records for the Court; without 20 these copies, the whether these Court cannot determine records would have proved the things the petitioner claims. Burger, 483 U.S. at 793; Muhammad, 274 Va. at 19, 646 S.E.2d at 195. The Court further finds trial counsel endeavored to investigate and obtain the phone records, filing subpoenas duces tecum requesting phone records from Comcast and AT&T; however, these records did not show the identity of the caller or the location of the caller on mobile phones. The Court credits trial counsel's determination that these records were neither persuasive nor relevant to trial. The Court holds that such tactical decisions, such as what evidence to present at trial, are part of the development of the defense strategy and lie solely within the province of counsel. Gonzalez [v. United States, 553 U.S. 242, 249 (2008)]; Taylor [v. Illinois, 484 U.S. 400, 418 (1998)]; accord Townes [v. 362 S.E.2d 650, The Court diligently Com., 234 657 (1987)] . further finds investigated Va. 307, trial the 320, counsel petitioner's alibi, but could not produce any evidence to support the petitioner's claims. The petitioner's wife told counsel, two days prior to trial, that she could not testify truthfully in his defense, told counsel about the location and related petitioner's counsel of several the probation shared stolen damaging property, allegations officer. the fruits to Trial of the investigation with the petitioner before trial, and the petitioner knew that the alibi defense could not be presented. The Court holds the petitioner demonstrate any prejudice from cannot trial counsel's decision not to introduce an alibi defense unless he can show that the "evidence as to alibi covering the time at or before the crime is sufficient to render the presence of an highly improbable." Va. 484, Plainly, 486-87, accused impossible or Abbott v. Peyton, 211 178 S.E.2d 521, 523 (1971). based on the information presented 21 to counsel one of before the trial, defense particularly witnesses testify truthfully in his behalf, finds trial counsel's proceed with this that could the Court decision evidence was not not to objectively reasonable. The his Court holds the petitioner cannot meet burden of showing under the demanding Strickland standard either that counsel's performance was lacking, or that he was prejudiced as a result of counsel's actions. Id. at 10-11 (first alteration in original). The Court discerns no unreasonable application of the law and no unreasonable 28 U.S.C. For determination of the facts. See § 2254(d)(l)-(2). the first time in his § 2254 Petition, Swinson submits the referenced Omega Meat receipt and bank records, neither of which support Swinson's alibi that he was at Omega Meats at the time of the robbery.® (See Mem. Supp. § 2254 Pet. Exs. B, C2.) Counsel wisely eschewed advancing an alibi defense that, through her thorough investigation she learned, not only lacked factual support demonstratively false. App'x 796, counsel 809-10 cannot evidence "''that faulted . appeared to Cf. Boseman v. Bazzle, (4th Cir. be . but 2010) for 364 F. (explaining failing . does not exist'" to be that present (quoting Lewis V. Horn, 581 F.3d 92, 114 (3d Cir. 2009)))."' Thus, ® Contrary to Swinson's contention, the receipt from Omega Meats provides no time for his purchase on April 8, 2008 and states that Swinson paid for his purchase in cash. The Court fails to discern why Swinson's bank statement would reflect any debit or other transaction when Swinson allegedly paid for the meat in cash. Moreover, Swinson's bank statement also provides no time for his transactions other than the date. For the first time in his Objections to the Motion to Dismiss, Swinson attaches a letter in Swinson's wife alleges she never told counsel Boyd committed the which "that robbery or where anything was." (Mem. Supp. § 2254 Pet. Ex. U, at 1.) Swinson's wife never signed this letter, much less swore to the letter under penalty of perjury. 22 Nevertheless, even Swinson demonstrates neither deficiency of counsel nor resulting prejudice. Accordingly, it is RECOMMENDED that Claims 7, 8, 10, and 13 be DISMISSED. In Claim 9, Swinson argues that counsel rendered ineffective assistance by ^^failting] to continuance for the non-appearance of a material witness inducing the Petitioner absent Celeste Thomas who was subpoenaed to [receipt] from Omega Meats." 28.) Swinson morning of available finding claims trial that this that that day (Mem. Supp. § 2254 Pet. counsel Celeste to claim request a subpoenaed to proceed validate a told Thomas testify. (I^ lacked merit, the him on at the not would be 29.) Circuit In Court explained: The petitioner has not supplied an affidavit from this witness showing either that she would have testified, or that she would have offered favorable testimony on the petitioner's behalf. this failure to proffer claim. Burger, 483 U.S. The Court finds is fatal to his at 793; Muhammad, 274 Va. at 19, 646 S.E.2d at 195. The Court further finds trial counsel did contact Celeste Thomas, and this witness could not recall the events the petitioner alleged about had occurred, whether the and the events were credible. attempted to expressed petitioner's doubt account of When trial counsel investigate the petitioner's alibi defense, she could not substantiate his statements regarding his whereabouts on the day of the crime. Additionally, counsel's the the decision not petitioner's "enormous United Court to behalf 218 finds a trial witness on F.3d is entitled to See deference." States, call Chandler v. 1305, 1314 (11th Cir. 2000) (en banc) ("calling some witnesses and not others is the epitome of a strategic Kozinski, decision"); 16 F.3d 795, United 813 (7th States Cir. v. 1994) if the Court were to credit Swinson's wife's statement over counsel's, the Court maintains determination not to advance the was imminently reasonable. 23 that counsel's flimsy alibi defense (decision not "enormous to call witness deference" and entitled to decision was objectively reasonable in any event). that Thomas for offered no the petitioner, favorable the Court Given evidence holds trial counsel's decision not to call her at trial was objectively reasonable. Accordingly, petitioner under show the that or Court filed demanding either lacking, the has to his Strickland counsel's that finds meet he was the burden standard to performance prejudiced was as a result. Swinson, No. CL12HC-91, at 8-9. unreasonable application of unreasonable U.S.C. § determination of The Court discerns no the law and no the facts. See 28 2254(d) (l)-(2). As previously discussed, counsel thoroughly investigated Swinson's alibi defense and found it not only lacked factual support, but was likely false. Counsel cannot be faulted continuance for a favorable testimony reason, from Swinson fails counsel's for witness to the to failure failing to request a who would not provide defense. For the same demonstrate to request any a prejudice continuance. Counsel explained that, after interviewing Celeste Thomas, counsel determined that Ms. Thomas would not testify as Swinson suggested, and counsel made the wise and strategic decision not to continuance in order for her to testify. request Cf. Byram v. Ozmint, 339 F.3d 203, 209-10 (4th Cir. 2003) no ineffective investigated assistance and made where counsel strategic a (finding adequately decision not to present evidence that could have harmed the defense) . Swinson fails to demonstrate that counsel rendered ineffective assistance, and, accordingly, it is RECOMMENDED that Claim 9 be DISMISSED. to In Claim 11, Swinson contends that counsel failed elicit testimony from Swinson's physician. Dr. Harrington Bowser, medical records had physical a and that failed would to submit demonstrate disability that that would updated Swinson make it impossible for him to scale the fence as described by Officer Encinas. In rejecting this claim, the Circuit Court explained: 24 Trial counsel interviewed Dr. Bowser prior to trial, and determined that Dr. Bowser would testify that the petitioner could have accomplished the physical task of scaling the fence. Browser would Trial counsel believed Dr. have been a hostile witness, and made the strategic decision to refuse to call him as a The Court witness. finds this tactical decision is part of the development of the defense strategy and lie solely within the province of counsel. Gonzalez, 553 U.S. at 249; Taylor, 484 U.S. at 418; accord Townes, 234 Va. at 320, 362 S.E.2d at 657. The Court further finds the petitioner has not offered any evidence to substantiate his claim that any favorable medical testimony would have available to his defense at trial. Muhammad, 274 Va. at 16, 646 S.E.2d at 193 (holding a claim that trial counsel should have presented a mental health defense requires the petitioner to "proffer the records from [ ] mental health exams" in order to "demonstrate that the mental health evidence" was both "available" at the time of trial and "would have aided in his defense"). Accordingly, the Court holds the petitioner cannot show under the demanding Strickland standard either that counsel's performance was lacking, or that he was prejudiced as a result of counsel's actions. Swinson, No. CL12HC-91, at 11-12 (alteration in original). The Court discerns no unreasonable application of the law and no unreasonable determination of the facts. See 28 Swinson's U.S.C. medical § 2254 (d) (l)-(2) . Counsel submitted records during the defense case that indicated that Swinson had a total bilateral hip replacement in 2002. (June 29, could 2009 Tr. infer 106) . that Swinson limitations. Again, Thus, may the trier of fact have had some physical counsel wisely eschewed calling Dr. Bowser who would have potentially hurt the defense by testifying that Swinson's physical limitations would not have prevented him from climbing the fence. Thus, counsel was not deficient for failing to call a 25 witness that could hurt, Accordingly, Swinson not help, Swinson's defense. demonstrates counsel or resulting prejudice, no deficiency of and it is RECOMMENDED that Claim 11 be DISMISSED. In Claim 12, Swinson argues that "counsel was ineffective because she failed to bring to light the accurate measurements from the crime scene, in particular, the distance, [and] landmarks associated with the flight path from the victim's home to the place where the perpetrator eluded a police pursuit." (Mem. Supp. § 2254 Pet. 40.) Swinson faults counsel for "allow[ing] Officer Encinas" to describe distance from the Crowder's home to the fence tenth of a mile. (Id.) the as one- Swinson argues that Officer Encinas purposely "down-play[ed] the actual distance . . because he knew before trial that the Petitioner has physical disabilities which would have made it improvable that it was the Petitioner that he was chasing." (Id. at 40-41.) Swinson contends that actual distance 41-) was four-tenths of a In rejecting this claim, mile. (Id. at the Circuit Court explained: The Court finds the petitioner failed to allege how the officer's opinion as to the distance was either improbable or inaccurate, and that counsel had no basis for objection on these grounds. The Court finds this claim fails to demonstrate either prong of the demanding Strickland test. Swinson, No. CL12HC-91, at 13. unreasonable application of The Court discerns no the law and no unreasonable the determination of facts. See 28 U.S.C. § 2254(d) (l)-(2) . Swinson fails to demonstrate how this purported discrepancy in distance would cast doubt on Officer Encinas's robber credible scale a testimony fence close that to he the observed victims' the home. Additionally, Officer Encinas had a photograph of the area in question and circled on the photograph both where the robbery occurred and where he observed the robber scaling the fence. (June 29, 2009 Tr. 35-36.) Thus, counsel reasonably eschewed advancing the challenges Swinson urges here. (Mem. Supp. § 2254 Pet. 40.) Moreover, as previously discussed, contrary 26 to Swinson's assertion, no evidence existed demonstrating that Swinson had a disability that would prevent him from scaling the fence. demonstrate deficiency or Swinson fails to resulting counsel's failure to introduce crime scene. Accordingly, it prejudice from measurements of the is RECOMMENDED that Claim 12 be DISMISSED. (Report and Recommendation entered January 29, 2015) (alteration in original). II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION "The magistrate [judge] makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." 1993) Estrada v. Witkowski, (citing Mathews v. 816 F. Supp. 408, Weber, 423 U.S. 261, 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b) (1) . "The filing of objections to a magistrate[] [judge's] report enables the district judge to focus attention on those issues-factual and legal-that Thomas v. Arn, are at 474 U.S. the heart 140, 147 of the (1985). parties' dispute." When reviewing the magistrate judge's recommendation, this Court "may also receive further evidence." 28 U.S.C. § 636(b)(1). 27 III. SWINSON'S OBJECTIONS Swinson's thirty-pages of objections do not comply with the Magistrate Judge's directive that "[s]uch objections should be numbered and identify with specificity the legal or deficiencies of the Magistrate Judge's findings." Recommendation fails to 31 set (citation forth omitted).) specific numbered factual (Report and Swinson's objections submission and instead generally attacks every facet of the Report and Recommendation. Swinson's objections essentially reiterate his lengthy arguments from his 2254 Petition and find fault on nearly every page of the Report and Recommendation for not agreeing with his positions. Swinson faults the Magistrate Judge's findings for reasons such as, "[t]he merits of Petitioner's claims were not properly adjudicated in state court," (Objs. at 4), "the state court failed to review all of the evidence," court made false statements, (id. at 5) , (id.) , and the that state the "Petitioner still contends that there was insufficient evidence to convict him." (I^ at 6.) The mere reiteration of earlier arguments is not a proper objection. Next, conclusions instead of the of challenging Magistrate Judge, the factual Swinson or attacks legal alleged errors in the Court of Appeals of Virginia's and the Circuit Court's summary of the evidence as quoted by the Magistrate Judge. For example, Swinson finds error in the Circuit Court's 28 statement that the victim identified the gun as similar to the gun recovered from the back yard, because "the record reflects C.W. identified a picture of a gun . . . and was never shown the actual BB gun . . . (I^ at 6 (emphasis added).) Swinson also claims that the Circuit Court's summary of the facts that stated the intruder "discarded some of the stolen items" was incorrect because no witness used the word "discarded." 7.) Thus, he faults the Magistrate Judge Circuit Court's description of the evidence. for (Id. at quoting the (I^) To the extent that Swinson challenges the state court's summary of the evidence, or the conclusion that sufficient evidence existed of his guilt, his objections are overruled. The Court has reviewed the record and finds the evidence of Swinson's guilt to be both substantial and compelling. Next, Swinson reargues each of his ineffective assistance of counsel claims. The Swinson explains: findings of the Circuit Court Swinson v. Clarke No. CL12HC-91 are in error and any findings by the Supreme Court based on this court[']s findings are also in error and the findings-summary-recommendations of the Magistrate Judge are also in error since they were all based on an inaccurate findings of the Circuit Court. (Id. at 9.) Thus, Swinson finds fault in the Report and Recommendation not based on the Magistrate Judge's conclusions, but based on the state court's 29 findings and conclusions. Swinson then continues to reargue his claims as presented in his § 2254 Petition. For example, Swinson argues that the Magistrate Judge erred in concluding that Swinson had demonstrated neither deficiency of counsel nor prejudice with regard to the statement of Barbara Santos that is in the presentence report. Swinson claims that the Magistrate Judge's conclusions about the impact of Santos s statements on Swinson's trial are "conjecture." Swinson claims that he "identified the (I^ at 12.) existence of evidence favorable to the accused (PSI report summary of a police report which contains a statement made by a witness who[se] would have benifited [sic] provided before trial)." merit. the defense if {I^ at 14.) testimony it would have been That contention lacks As the Magistrate Judge appropriately concluded, the report contained no exculpatory evidence, and counsel reasonably decided not to advance a challenge based on a third-hand account of a witness. And, the Magistrate Judge correctly concluded that Swinson had not demonstrated prejudice. In the next few pages of his objections, Swinson merely states that he "objects to the Magistrate Judge's summary and recommendation" reargues Magistrate his (see, claims. Judge e.g., id. at The record, correctly 16, however, concluded 30 17, that 19, 25, 27) and shows that the Swinson had not demonstrated that counsel rendered ineffective assistance. Swinson's objection to the contrary is overruled. Swinson believes that the Magistrate Judge erred by concluding that counsel rendered no ineffective assistance when she purportedly failed to appropriately cross-examine victims about whether they could identify Swinson. 17.) The record demonstrates that neither affirmatively identify Swinson as the robber. the (I^ at 16- victim could Thus, the Magistrate Judge appropriately concluded that "Swinson fails to explain how any further questioning of the victims would have reinforced that inference." {Report and Recommendation 19-20.) Swinson also believes that the Magistrate Judge erred with respect to his conclusion that Swinson had demonstrated neither deficiency of counsel nor prejudice with regard to his various claims that counsel failed to investigate, interview or subpoena witnesses, or introduce evidence to support Swinson's alibi defense that he was at Omega Meats at the time of the robbery. (See Objs. 19-25.) As the Magistrate Judge appropriately explained: "[C]ounsel wisely eschewed advancing an alibi defense that, through her thorough investigation she learned, not only lacked factual false." Similarly, support but appeared to (Report and Recommendation 25 Swinson fails be demonstratively (citation omitted).) to demonstrate any error in the Magistrate Judge's conclusion that counsel reasonably eschewed 31 advancing a line of defense regarding his physical limitations. (See Objs. 25-28.) The Court has reviewed the record, Swinson's lengthy objections, and the legal and factual conclusions in the Report and Recommendation, and finds no error. Swinson's objections will be overruled. IV. CONCLUSION Swinson's Objections (ECF No. 23) will be overruled. The Report and Recommendation will be accepted and adopted. The Motion to Dismiss (ECF No. 9) will be granted. Swinson's Motion for Discovery (ECF No. 16) and Motion for an Evidentiary Hearing (ECF No. 17) will be denied as moot. action will be dismissed. Swinson's claims and the The Court will deny a certificate of appealability. The Clerk is directed to send a copy of this Memorandum Opinion to Swinson and counsel of record. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: March _(jj^2015 32
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