Brooks v. Clarke, No. 3:2015cv00013 - Document 9 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 4/16/2015. (sbea, )
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Brooks v. Clarke Doc. 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION DONALD LEE BROOKS, Petitioner, Civil Action No. 3:15-CV-13 v. HAROLD W. CLARKE, Respondent. MEMORAN D U M OPIN ION THIS MATTER is before the Court on a Writ of Habeas Corpus for Prisoner in State Custody (“Petition”) (ECF No. 1) filed by Petitioner Donald Lee Brooks (“Brooks” or “Petitioner”) and a Motion to Dism iss (ECF No. 5) filed by Respondent Harold W. Clarke (“Clarke” or “Respondent”), Director of the Virginia Departm ent of Corrections. In the Petition, Brooks challenges his convictions for second degree m urder and the use of a firearm in the com m ission of that m urder. After being convicted, Brooks was sentenced to 25 years on the m urder conviction and 3 consecutive years on the firearm offense. For the reasons that follow, the Court DENIES the Petition and GRANTS the Motion to Dism iss. I. BACKGROU N D a. Fa ct u a l H is t o r y On April 12, 20 10 , Brooks, Gerald Hall (“Hall) and Tony Robinson (“Robinson”) were at a bar nam ed “B&N Grill,” drinking beer and playing pool. Hall and Brooks were regular custom ers who cam e in about two or three tim es a week. Robinson did not previously know either of the two other m en. After som e tim e, the m en got loud fussing at each other, and the bar owner, Betty Newton (“Newton”), asked the m en to go outside. At trial, Newton claim ed that Brooks shoved Hall to the ground as the m en walked outside. Testifying for the prosecution, Robinson stated that he went outside a few m om ents after Hall and Brooks left the bar, and saw 1 Dockets.Justia.com the two m en just standing there. According to Robinson, Brooks then walked to his truck, pulled out a gun, and walked toward Hall while firing his gun. The prosecution alleged that Hall was shot in the back. However, Brooks testified to the contrary that upon exiting the bar, Hall and Robinson took him to the ground, and his hat and glasses were knocked off. When knocked down, Brooks allegedly landed on his back and suffered a large gash in his head, which required stitches. Brooks further testified that Hall was straddling him , basically sitting on Brooks’ stom ach and holding down one arm , while Robinson held down Brooks’ other arm . Brooks then alleged that Hall started beating him in the face. When Brooks asked Hall why he was doing this, Hall responded, “I’m going to kill your old MF ass.” Brooks testified that at that m om ent, he “snapped,” m anaged to get his arm free, pulled his gun “from the back of [his] britches,” and started shooting. After the shooting, Brooks went to his truck, called 911 and advised the dispatcher that he thought he shot two people. According to Deputy White’s testim ony, when he arrived on scene he first noticed that Brooks had a lot of blood on his face. The first thing Brooks told the Deputy was that “they beat m e up,” and “I’m an old m an, and that’s why I shot them .” According to the state’s m edical exam iner, Dr. Gorm ley, Hall died about three weeks after the shooting from infection, essentially caused by two gunshot wounds. b. Pr o ce d u r a l H is t o r y i. Co n victio n an d D ire ct Ap p e al Brooks was charged with m urder and the use of a firearm in the com m ission of that m urder. He pled not guilty to each charge. A jury trial was held before the Honorable Thom as V. Warren on Septem ber 1-2, 20 10 . Keith N. Hurley (“Hurley”) represented Brooks at trial. The jury was instructed on first degree m urder, second degree m urder, m anslaughter based on the heat of passion, and self-defense. The jury found Brooks guilty of second degree m urder and use of a firearm in the com m ission of m urder and recom m ended 25 years for second degree m urder 2 and 3 years for use of a firearm . The Court accepted the jury’s recom m ended sentences. The trial court entered final judgm ent on Septem ber 9, 20 10 , and Brooks subsequently appealed his convictions to the Court of Appeals of Virginia. A single judge refused the petition on March 22, 20 11, and a three-judge panel likewise refused the petition on May 17, 20 11. The Virginia Suprem e Court thereafter refused Brooks’ petition for appeal by order dated October 24, 20 11. ii. State an d Fe d e ral H abe as Pe titio n s After the Virginia Suprem e Court’s refusal to hear Brooks’ petition, he filed a habeas corpus petition in the Am elia County Circuit Court. In that petition, Brooks raised all of the allegations that he raises in the present Petition, which are outlined below. The circuit court issued a letter opinion on Septem ber 21, 20 13, in which it rejected Brooks’ various ineffective assistance of counsel claim s. The circuit court dism issed the petition on February 21, 20 14. The Suprem e Court of Virginia then denied the petition for appeal from the habeas dism issal order on October 10 , 20 14. On J anuary 7, 20 15, Brooks filed the instant Petition in this Court raising the sam e four prim ary claim s: Claim A: Petitioner was denied his right to effective assistance of counsel when (1) counsel failed to present and argue any evidence of the trajectory of the bullets that allegedly supported the defense theory of the case and in particular Petitioner’s testim ony; (2) counsel failed to properly cross-exam ine the state’s chief m edical exam iner regarding the entry and exit wounds, trajectory of the bullets, and inaccuracies of his diagram s, and failed to object to the adm ission of the autopsy report; and (3) counsel failed to present evidence and argue during closing argum ent that the bullet wounds and trajectory of the bullets support Petitioner’s theory of self-defense, or at worst, m anslaughter. (See Pet. at 13– 14.) Claim B: Petitioner was denied his right to effective assistance of counsel when counsel failed to present evidence of certain bruising on Petitioner as well as the bent rings on Petitioner’s left hand allegedly caused by Robinson putting his knee on Petitioner’s hand. (See id. at 27.) Claim C: Petitioner was denied his right to effective assistance of counsel when counsel failed to fully cross-exam ine Robinson. (See id. at 30 .) Claim D: Petitioner was denied his right to effective assistance of counsel as a result of counsel’s errors in Claim s A through C. (See id. at 35.) 3 On February 18, 20 15, Clarke filed a response to the Petition and the Motion to Dism iss (ECF Nos. 5, 6). Brooks subsequently filed a reply to the Motion to Dism iss on March 23, 20 15 (ECF No. 8). This m atter is now ripe for review. II. LEGAL STAN D ARD S a. Th e AED PA Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court m ay review a petition for a writ of habeas corpus by a person serving a sentence im posed by a state court only on grounds that the person is being held in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The federal court m ay grant the petition on a claim decided on its m erits by the state court only if that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determ ined by the Suprem e Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determ ination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A decision is “contrary to” federal law if it resolves a question of law in a way that contradicts the relevant Suprem e Court precedent, or if it yields a result that differs from the outcom e of a Suprem e Court case involving “m aterially indistinguishable” facts. W illiam s v. Tay lor, 529 U.S. 362, 40 5– 0 6 (20 0 0 ). A decision applies federal law unreasonably if it is based on the correct legal principle but applies that principle unreasonably to the facts of a case. Id. at 413. Whether a decision is reasonable is determ ined by an objective, not subjective, test. Id. at 40 9– 10 . The question is not “whether a federal court believes the state court’s determ ination was incorrect but whether that determ ination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (20 0 7) (citing W illiam s, 529 U.S. at 410 ). Finally, a federal court is to presum e the correctness of the state court’s finding of facts and not find an “unreasonable determ ination” of the facts, unless the petitioner rebuts the presum ption by clear and convincing evidence. Id. at 473– 74. Thus, under section 2254(d), if a state court 4 applies the correct legal rule to the facts of a case in a reasonable way, or m akes factual findings reasonably based on the evidence presented, a federal court does not have the power to grant a writ of habeas corpus, even if the federal court would have applied the rule differently. W illiam s, 529 U.S. at 40 6– 0 8. b . M o t io n t o D is m is s The fam iliar standards of Federal Rule of Civil Procedure 12(b)(6) apply to a governm ent’s m otion to dism iss a section 2254 petition. W alker v. Kelly , 589 F.3d 127, 138 (4th Cir. 20 0 9). A m otion to dism iss therefore “tests the legal sufficiency of the petition, requiring the federal habeas court to assum e all facts pleaded by the § 2254 petitioner to be true.” Id. at 139 (internal quotation m arks om itted) (quoting W olfe v. Johnson, 565 F.3d 140 , 169 (4th Cir. 20 0 9)). The court m ust consider “the face of the petition and any attached exhibits” in determ ining whether a section 2254 petition states a claim for relief. Id. (quoting W olfe, 565 F.3d at 169). To survive a m otion to dism iss, a com plaint m ust contain sufficient factual inform ation “to state a claim to relief that is plausible on its face.” Bell Atlantic v. Tw om bly , 550 U.S. 544, 570 (20 0 7). “Determ ining whether a com plaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and com m on sense.” Ashcroft v. Iqbal, 556 U.S. 662, 663– 64 (20 0 9). A com plaint achieves facial plausibility when it contains sufficient factual allegations supporting the reasonable inference that the alleged violations occurred. See Tw om bly , 550 U.S. at 556; see also Iqbal, 556 U.S. at 678. III. D ISCU SSION 1 As an initial m atter, Brooks’ Petition before this Court is virtually identical to his petition for habeas relief before the Am elia Circuit Court. He presents the sam e four grounds for relief. 1 Brooks contends, and Clarke does not dispute, that the Petition’s claim s have been exhausted and that the Petition was tim ely filed. See 28 U.S.C. §§ 2244(d), 2254(b)(1)(A). 5 For this reason alone, Brooks has not shown that the state court m ade an unreasonable determ ination of facts. Pursuant to 28 U.S.C. § 2254, this Court m ust presum e the correctness of the state court’s factual findings. See 28 U.S.C. § 2254(e)(1); Schriro, 550 U.S. at 473– 74. A petitioner can only rebut this presum ption of correctness with clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). However, there are no facts, evidence, or argum ent in the record that differ from those before the Am elia Circuit Court in resolving the Petition. Accordingly, Brooks has not presented clear and convincing evidence that the Am elia Circuit Court’s denial of habeas relief involved an unreasonable determ ination of facts. Moreover, Brooks has failed to prove an unreasonable application of clearly established federal law. Because each of Brooks’ four claim s focuses on ineffective assistance of counsel, the Court will first outline the standard governing such claim s. To succeed on a claim of ineffective assistance of counsel, a petitioner m ust show both that: (1) his attorney’s perform ance fell below an objective standard of reasonableness, and (2) he suffered actual prejudice. Strickland v. W ashington, 466 U.S. 668, 687 (1984). The first prong of Strickland, the perform ance prong, requires the petitioner to “‘show that counsel’s representation fell below an objective standard of reasonableness’ m easured by ‘prevailing professional norm s.’” Lew is v. W heeler, 60 9 F.3d 291, 30 1 (4th Cir. 20 10 ) (quoting Strickland, 466 U.S. at 688). There is a “strong presum ption that counsel’s conduct falls within the wide range of reasonable professional assistance,” and “[j]udicial scrutiny of counsel’s perform ance m ust be highly deferential.” Strickland, 466 U.S. at 689. When m aking an ineffective assistance of counsel determ ination, a court m ust consider “the practical lim itations and tactical decisions that counsel faced.” Bunch v. Thom pson, 949 F.2d 1354, 1363 (4th Cir. 1991). The second prong of Strickland, the prejudice prong, requires the petition er to show that counsel’s errors were serious enough to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687. In essence, the petitioner m ust show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a 6 probability sufficient to underm ine confidence in the outcom e.” Id. at 694. If it is clear the petitioner has failed to satisfy either prong of the Strickland standard, a court need not inquire into whether he satisfied the other. Id. at 697. a. Cla im A: In e ffe ct iv e As s is t a n ce o f Co u n s e l R e g a r d in g Tr a je ct o r y o f Bu lle t s As to his first ground for relief, Brooks contends that he was denied the effective assistance of counsel in violation of the Constitution for his trial counsel’s failure to (1) present and argue any evidence of the trajectory of the bullets that supposedly supported the defense theory of the case; (2) properly cross-exam ine the state’s chief m edical exam iner, Dr. Gorm ley; and (3) present evidence and argue during closing argum ent that the bullet wounds and trajectory of the bullets fully support Petition er’s claim s of self-defense, or at worst, m anslaughter. (Pet. at 13– 14.) Specifically, Brooks argues that this evidence “proved that the trajectories of the two shots to the body indicated a steep upward an gle, traveling left to right of his body, and those entry and exit wounds on Hall’s body are consistent with his being shot while the Petitioner was laying on the ground on his back.” (Pet. at 14.) Brooks contends that this evidence “was the m ost im portant fact in the entire case; yet the jury heard none of it and was told alm ost the opposite: that Hall was shot in the back as the Petitioner walked toward him firing his gun.” (Id.) Brooks subm its that the m ain issue in the case was whether he acted in self-defense or under the heat of passion. If he was, as he alleges, flat on his back, being held down and beaten, and therefore had a reasonable fear of serious bodily injury or death, then he was authorized to use deadly force in self-defense. On the other hand, if the jury believed that Brooks was beaten but went too far in repelling the attack, the jury could still find that heat of passion was present, and would have reduced the charge to m anslaughter. After briefing and oral argum ent, the Am elia Circuit Court in its letter opinion dated Septem ber 21, 20 13 stated, 7 I agree with petitioner that his trial counsel’s perform ance regarding the trajectory of the bullets was deficient. There should have [sic] m ore thorough cross-exam ination of Dr. Gorm ley, there should have been m ore argum ent regarding the trajectory of the bullets, and there should been expert testim ony for the defense. Even if I assum e that the “deficient perform ance” prong of Strickland has been m et, however, I m ust still consider the “prejudice” prong. From petitioner’s point of view, the problem regarding the “prejudice” prong is that the statem ents that petitioner m ade to White and Eells clearly indicate that petitioner went back to his truck, got his gun, and shot Hall, as opposed to shooting Hall while he and Hall were fighting on the ground. (Cir. Ct. Letter Op. of Sept. 21, 20 13, at 3.) The trial transcripts am ply confirm that the Am elia Circuit Court reasonably reached this conclusion through the proper application of the Strickland standard. Starting with Strickland’s latter prong, see Strickland, 466 U.S. at 697 (holding that either prong can be addressed first), the overwhelm ing inculpatory evidence dem onstrates that Sm ith was not prejudiced by his counsel’s alleged deficient perform ance. First, Rondell White (“White”), deputy sheriff for Am elia County, testified that when he arrived at the scene on the night in question, Brooks told him , “I’m an old m an, and that’s why I shot them . [Brooks] told [White] that there was a black m an, that he had shot the ring off.” (Tr. Sept. 1, 20 10 , at 10 7:3– 5.) Brooks further adm itted that he had gone to his truck, got his gun, and “began shooting.” (Id. at 10 8:1– 2.) Brooks was “going to kill him [Hall], and the only reason why [he] didn’t was because [Hall] begged [him ] not to.” (Id. at 10 8:3– 4.) J ohn Eells (“Eells”), deputy with the Am elia County Sheriff’s Office, m irrored White’s testim ony. After Eells brought Brooks to the Piedm ont Regional J ail, (id. at 145:11– 13), Brooks told Eells that he had asked Hall to stop attacking him because he was “an old m an,” (id. at 146:11– 13). Brooks adm itted that “once the attack had stopped, he went over to his vehicle and retrieved his pistol and went back over to Mr. Hall and started firing at him , em ptied the weapon at Mr. Hall.” (Id. at 146:13– 16.) Then Brooks returned to his vehicle, and “reloaded the weapon with the intent of quote, finishing him , Gerald Hall, but [Brooks] said that he did not shoot again because Gerald Hall was on the ground saying, please don’t shoot m e, Don.” (Id. at 8 146:17– 21.) Robinson also testified at trial, stating that when he left the bar and proceeded to his car, he “heard Brooks or som ebody said [sic], I’ll be right back.” (Id. at 20 1:1– 2.) Robinson turned around and saw Brooks headed towards his truck. (Id. at 20 1:2– 3.) Brooks then pulled a gun from his truck, and starting firing it at Hall. (See id. at 20 1:7– 11;14– 16.) Brooks, to the contrary, testified that he had his gun in his back pants pocket the entire night. (Id. at 259:24– 25.) He testified that he never went back to his truck to get the gun because he “didn’t have to.” (Id. at 260 :7– 9.) In light of the weight of the witness testim ony underm ining Brooks’ account, the state court was not unreasonable in concluding that Brooks was not prejudiced by his counsel’s alleged deficient perform ance. Rather, to the contrary, the deputy sheriffs’ testim ony regarding Brooks’ statem ents m ade on the night in question clearly show that Brooks went to his truck to retrieve his pistol and then returned to Hall with the intent of “finishing him .” (Id. at 146:18.) Brooks’ own statem ents established his plain guilt on the charge of second degree m urder, and contradicted any notion of self-defense. In Virginia, “[k]illing in self-defense m ay be either justifiable or excusable hom icide. J ustifiable hom icide in self-defense occurs where a person, w ithout any fault on his part in provoking or bringing on the difficulty , kills another under reasonable apprehension of death or greatly bodily harm to him self.” Avent v. Com m onw ealth, 688 S.E.2d 244, 199 (Va. 20 10 ) (citation om itted). Excusable hom icide, on the other hand, “occurs where the accused, although in som e fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save him self from great bodily harm .” Gilbert v. Com m onw ealth, 50 6 S.E.2d 543, 546 (Va. Ct. App. 1998) (citation and internal quotation m arks om itted). Here, Brooks would not qualify for either justifiable or excusable hom icide. With regards to justifiable, Newton testified that Brooks told Hall two tim es that he 9 was going to “kick [his] ass.” (Tr. Sept. 1, 20 10 , at 184:11, 20 – 23.) Then after Newton told the m en to “take it outside,” she saw Brooks shove Hall to the ground. (Id. at 185:1, 3.) Secondly, with respect to excusable hom icide, witness testim ony confirm ed that Brooks’ actions could not constitute any sort of retreat– rather Brooks’ “retreat” was only to go back to his truck and reload his gun before returning to Hall with the intent of finishing him off. (Id. at 146:17– 21.) The Respondent notes that “[o]nly if the jury had credited petitioner’s self-serving trial testim ony rather than his num erous inculpatory statem ents to the deputy sheriffs . . . would the trajectory of the bullets have potentially m attered.” (Mem . in Supp. of Mot. to Dism iss at 23.) Based on the trial testim ony, the Court agrees with Respondent that “[t]here is nothing rem otely approaching a reasonable probability of the jury so crediting the petitioner’s trial testim ony.” (Id.) Because the Petitioner has m ade an insufficient showing on the prejudice prong, this Court need not address the perform ance prong. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both com ponents of the inquiry if the defendant m akes an insufficient showing on one.”). Therefore, regardless of whether Brooks’ trial counsel should have m ore thoroughly cross-exam ined Dr. Gorm ley, Brooks’ habeas petition would still not pass m uster under Strickland’s prejudice prong. Therefore, Brooks’ first groun d for relief is denied. b. Cla im B: In e ffe ct iv e As s is t a n ce o f Co u n s e l R e g a r d in g Br u is in g , Lo ca t io n o f t h e Gu n & Be n t R in g s In his second claim for relief, Brooks argues that his counsel was ineffective by failing to present evidence of (1) “the bruising on Petitioner’s lower backside, around the waistline, from where the gun was located while the Petition was on his back and being beaten by Hall,” and (2) “the bent rings on [Petitioner’s] left hand from where Robinson held down his arm by putting his knee on the Petitioner’s hand, causing the bent rings.” (Pet. at 27.) Brooks argues that the m ain difference between the prosecution’s theory and the defense’s theory was whether Brooks retrieved his gun from his truck or fired his gun while being beaten. He argues that his gun was 10 in his waistband while he was lying flat on his back, being held down, and beaten. However, counsel failed to present evidence of the bruising that resulted from the gun. Additionally, Brooks contends that he was wearing two rings at the tim e he was assaulted, and those rings were bent as a result of being held down to the ground. Again, this evidence was available but not presented at trial. Brooks argues that this evidence provides “com pelling support” for the jury to accept that Brooks was being held down and beaten at the sam e tim e that he had his gun tucked in his waistband. The Am elia Circuit Court found that Brooks’ argum ent did not “rise to a level sufficient to m eet the ‘deficient perform ance’ prong of Strickland, and even if they did, the inculpatory evidence described previously was so strong that the ‘prejudice’ prong of Strickland has not been m et.” (Cir. Ct. Letter Op., Sept. 21, 20 13, at 4.) With regards to the bruising, the trial court record indicates that no m edical records existed regarding a bruise to Brooks’ lower back. (Tr. Sept. 1, 20 10 , at 280 :7– 11.) Brooks’ trial counsel, Hurley, confirm s this lack of evidence in his affidavit. (See Mem . in Supp. of Mot. to Dism iss Ex. 1, at 2.) And, although Brooks claim ed on direct exam ination that he suffered bruising as a result of carrying a gun on his person during the fight with Hall, (id. at 260 :9– 11), he did not m ention any such injuries on cross-exam ination, (see id. at 28 0 :7– 28 2:15). Thus, Hurley did not exhibit deficient perform ance by failing to put on non-existent evidence, and likewise, for all of the reasons identified above, Brooks was not prejudiced by Hurley’s perform ance. Secondly, in his affidavit Hurley asserts that he has no notes of Brooks advising him of the bent rings, nor could he have offered any evidence of how the rings were bent other than Brooks’ own testim ony. (Mem . in Supp. of Mot. Ex. 1, at 2.) As Hurley contends, “[a]t best, the bent rings m ay have shown Robinson was involved in the assault, but that evidence would not have discredited Brooks’ statem ent to the police the night of the incident.” (Id.) Thus, this claim m ust also fail for the reasons previously described. 11 c. Cla im C: In e ffe ct iv e As s is t a n ce Exa m in a t io n o f R o b in s o n of Co u n s e l R e g a r d in g Cr o s s - In his third claim , Brooks argues that he was denied effective assistance of counsel when counsel failed to fully cross-exam ine Robinson regarding: “(1) Robinson’s prior inconsistent statem ents as listed herein; (2) the evidence that Robinson claim ed Hall was shot by Petitioner while both were standing and that the Petitioner never stood over and shot Hall; (3) Robinson carried a baton or sm all club in his car and could access this baton by opening the driver’s door of his vehicle; (4) Robinson participated in the beating of the Petitioner; and, (5) Robinson’s claim that the Petitioner’s injuries probably were self-inflicted while Petitioner waited for police to arrive.” (Pet. at 30 .) Brooks argues that each of Robinson’s previous statem ents were different from his trial testim ony. He argues that a proper cross-exam ination of Robinson would have revealed “the key factor in the case: the Petitioner’s intent.” (Pet. at 34.) Respondent counters that “the present allegation m erely ‘consistute[s] a grading of the quality of counsel’s’ perform ance on this m atter.” (Mem . in Supp. of Mot. at 30 ) (citing Hunt v. Nuth, 57 F.3d 1327, 1333 (4th Cir. 1995)). The Am elia Circuit Court again found this argum ent unavailing. (See Cir. Ct. Letter Op., Sept. 21, 20 13 at 4.) A review of the trial transcript illustrates that counsel cross-exam ined Robinson on the following issues: (1) whether he has been convicted of a felony or a m isdem eanor involving lying, cheating, or stealing (Tr. Sept. 1, 20 10 , at 20 5); (2) whether he told Helen Borges, Petitioner’s investigator, that there had been no fighting inside the bar on the night in question (id. at 20 6); and (3) whether Robinson saw “any problem s” between Brooks and Hall as they walked out of the bar (id. at 20 7:16– 21). In his affidavit, Hurley states that he “did not believe Mr. Robinson would be helpful to Mr. Brooks’ case.” (Mem . in Supp. of Mot. to Dism iss Ex. 1, at 2.) Rather, Hurley believed “Robinson was dangerous to Mr. Brooks, unpredictable.” (Id.) “[A]fter he appeared to be an unbelievable witness, [Hurley] kept his questioning to a m inim um .” (Id. at 3.) Hurley did not believe it would benefit Brooks for Robinson to explain 12 “how Brooks received a laceration to his forehead or whether that injury would have been caused by Robinson’s baton.” (Id.) Hurley’s decision about the scope of his cross-exam ination of Robinson was a tactical decision reasonably m ade during the course of trial. Hurley was “concerned” about Robinson’s potential answers and accordingly “kept [his] questioning to a m inim um .” (Id.) It is not appropriate to now question Hurley’s tactical judgm ents. See Bunch, 949 F.2d at 1363; Tice v . Johnson, 647 F.3d 87, 10 5 (4th Cir. 20 11) (quoting Griffin v. W arden, M d. Corr. Adj. Ctr., 970 F.2d 1355, 1358 (4th Cir. 1992)). Moreover, even if Hurley had cross-exam ined Robinson on the issues raised in the present Petition, Brooks still does not m ake a showing that the result of the proceeding would have been different. Therefore, Petitioner’s third claim fails under the Strickland standard. d . Cla im D : In e ffe ct iv e As s is t a n ce o f Co u n s e l a s a R e s u lt o f An y a n d All o f Co u n s e l’s Er r o r s in Cla im s A Th r o u g h C In his final claim for relief, Petitioner argues that he was denied his right to effective assistance of counsel as a result of the aggregate prejudice of counsel’s errors in Claim s A through C. For all the reasons stated above, Petitioner’s Claim s A through C do not warrant federal habeas relief and therefore this allegation m ust also necessarily fail. Accordingly, Petitioner’s claim regarding aggregate deficiencies in his trial counsel’s perform ance is likewise denied. e . R e q u e s t fo r a n Ev id e n t ia r y H e a r in g o n Cla im s B & C Plaintiff argues that the state court unreasonably denied an evidentiary hearing on Claim s B and C. He asserts that an evidentiary hearing is necessary to resolve factual disputes and to provide him with the opportunity to prove the stated grounds for habeas relief. The decision to grant an evidentiary hearing is left to the “sound discretion of district courts.” Schriro, 550 U.S. at 473. A federal court m ust consider whether the evidentiary hearing would provide the petitioner the opportunity to “prove the petition’s factual allegations, which, 13 if true, would entitle the applicant to federal habeas relief.” Id. at 474; see May es v. Gibson, 210 F.3d 1284, 1287 (10 th Cir. 20 0 0 ). The court m ust also consider the standards prescribed by section 2254 when considering whether an evidentiary hearing is appropriate. Schriro, 550 U.S. at 474. Based on a thorough evaluation of the state court record, the Court finds habeas relief under § 2254 is precluded, and thus the request for an evidentiary hearing is denied. IV. CERTIFICATE OF APPEALABILITY A district court that enters a final order denying a § 2254 m otion m ust grant or deny a certificate of appealability. Rules Governing Section 2254 Proceedings 11. A certificate of appealability m ay issue only if the applicant has m ade a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336– 38 (20 0 3); Slack v. McDaniel, 529 U.S. 473, 48 4 (20 0 0 ). In order to satisfy § 2253(c), a petitioner m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong. Miller-El, 537 U.S. at 336– 38 (citing Slack, 529 U.S. at 484). For the reasons stated m ore fully above, no law or evidence suggests Brooks is entitled to further consideration of his claim s. Accordingly, the Court DENIES a certificate of appealability. V. CON CLU SION For the foregoing reasons, the Court DENIES the Petition, DENIES a certificate of appealability, and GRANTS the Motion to Dism iss. Let the Clerk send a copy of this Mem orandum Opinion to Petitioner and all counsel of record. _____________________/s/__________________ James R. Spencer Senior U. S. District Judge An appropriate Order shall issue. ENTERED this 16th_ _ _ day of April 20 15. 14
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