Hawkins v. Davis, No. 3:2015cv00145 - Document 9 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 6/10/15. Copy sent: Yes (tdai, )
Download PDF
<![CDATA[
Hawkins v. Davis Doc. 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION J AMES WILLIE HAWKINS, J R., Petitioner, Civil Action No. 3:15-CV-145 v. KEITH W. DAVIS, 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 J am es Willie Hawkins, J r. (“Hawkins” or “Petitioner”) and a Motion to Dism iss (ECF No. 5) filed by Respondent Keith W. Davis (“Davis” or “Respondent”), Director of the Virginia Departm ent of Corrections.1 In the Petition, Hawkins challenges his convictions for abduction; conspiracy to com m it abduction; m alicious wounding; conspiracy to com m it m alicious wounding; and use of a firearm in the com m ission of a felony. After being convicted, Hawkins was sentenced to an aggregate sentence of thirty-six years’ im prisonm ent. For the reasons set forth below, the Court GRANTS the Motion to Dism iss and DISMISSES the Petition. I. BACKGROU N D a. Fa ct u a l H is t o r y On J une 12, 20 12, Latoya Hawkins (“Ms. Hawkins”) and her boyfriend, Zack Bradford (“Bradford”) were at Ms. Hawkins’ hom e in Virginia Beach. Ms. Hawkins was m arried to the 1 Hawkins m istakenly nam ed Davis as respondent, presum ably because Davis was at one tim e the Warden of Sussex I State Prison, where Hawkins is held. (Mot. to Dism iss at 1 n.1.) However, Harold W. Clarke (“Clarke”) in his official capacity as Director of the Virginia Departm ent of Corrections, is the person who has current custody over Davis, and is the proper party respondent. Va. Code §§ 53.1-20 , 19.2-310 . Therefore, the Court GRANTS the Director of the Virginia Departm ent of Corrections request to substitute Clarke as party respondent in this m atter. 1 Dockets.Justia.com Petitioner during the relevant tim e period, but the couple was separated. Ms. Hawkins had a protective order against Petitioner. Beginning around 5:0 0 p.m . on J une 12, Petitioner repeatedly called Ms. Hawkins and left threatening m essages. That sam e afternoon, J im m y Bufkin (“Bufkin”), an acquaintance of Petitioner, paid a visit to Ms. Hawkins’ hom e. Using racial slurs and abusive language, Bufkin told Ms. Hawkins that Petitioner was on his way to the hom e and she should ensure Bradford was not present when Petitioner arrived. Around 6:0 0 p.m ., Bradford stepped out onto Ms. Hawkins’ front porch to take a telephone call. At approxim ately the sam e tim e, Petitioner arrived, carrying a gun. Petitioner approached Bradford and said, “Com e here,” while pointing the gun at him . He then forced Bradford at gunpoint to walk through the neighborhood towards a green pickup truck Petitioner had borrowed from a friend. An individual wearing a ski m ask was in the truck’s driver seat. When Petitioner told Bradford to get in the truck, Bradford refused and attem pted to escape. As Bradford tried to get away, Petitioner shot him m ultiple tim es. Bradford survived the shooting. 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 On August 20 , 20 12, Petitioner was indicted by the grand jury of the Com m onwealth of Virginia, in the Circuit Court of Virginia Beach (“Virginia Beach Circuit Court”). He was charged with m alicious wounding, abduction, conspiracy to com m it abduction, conspiracy to com m it m alicious wounding, and use of a firearm in the com m ission of a felony. Petitioner pleaded not guilty and proceeded to a jury trial on J anuary 8, 20 13. The jury convicted Petitioner, and on J uly 3, 20 13, the trial court entered final judgm ent and sentenced Petitioner to an aggregate sentence of thirty-six years’ im prisonm ent. Petitioner sought a direct appeal in the Court of Appeals of Virginia on the following grounds: (1) The Com m onwealth failed to present sufficient evidence establishing the defendant and co-defendant form ed an express agreem ent to com m it the crim es of abduction and m alicious wounding. 2 (2) The Com m onwealth failed to present sufficient evidence establishing the elem ent of “m alice” but instead established the defendant acted in the “heat of passion” and thus the Com m onwealth failed to prove the defendant m aliciously wounded Bradford. (3) The Com m onwealth failed to offer sufficient evidence of force or that any m ovem ent of Bradford from one location to another was other than incidental to the unlawful wounding rendering the evidence legally insufficient to convict him of abduction. By Order dated Decem ber 30 , 20 13, the Court of Appeals of Virginia held that it would not consider the sufficiency challenges because Petitioner had not lodged a contem poraneous objection at trial, as required by Rule 5A:18 of the Rules of the Suprem e Court of Virginia. (Br. in Supp. of Mot. to Dism iss, Ex. 1, attachm ent C.) Petitioner then appealed to the Suprem e Court of Virginia, but the Suprem e Court dism issed the petition on May 9, 20 14 because the assignm ents of error did not address the Court of Appeals’ ruling. (Id. at attachm ent D.) ii. State an d Fe d e ral H abe as Pe titio n s On May 15, 20 14, Petitioner filed a tim ely petition for a writ of habeas corpus in the Suprem e Court of Virginia. He alleged five grounds in support of his petition: (1) The Court of Appeals erred in ruling the Com m onwealth presented sufficient evidence to establish that petitioner and his co-defendant form ed an express agreem ent to abduct and m aliciously wound the victim ; (2) The Court of Appeals erred in ruling the Com m onwealth presented sufficient evidence to prove m alice because the evidence showed petitioner acted in the heat of passion; (3) The Court of Appeals erred in ruling the Com m onwealth presented sufficient evidence to prove the elem ent of force required to convict petitioner of abduction and that any m ovem ent of the victim was not incidental to the “unlawful wounding”; (4) The trial court abused its discretion in sentencing petitioner to an active term of thirty-six years’ im prisonm ent where he acted in the heat of passion, and that the sentence was disproportionate to his crim es; (5) The petitioner was denied the effective assistance of counsel when trial counsel solicited perjured testim ony for use in petitioner’s case, but then abandoned the plan and “gave [petitioner] up to [an Assistant Com m onwealth’s Attorney] to execute [petitioner] fo[r] nothing.” The petitioner alleged counsel did this 3 because petitioner’s case was “high profile” and counsel needed votes from his colleagues to win an election for Com m onwealth’s Attorney. On Novem ber 18, 20 14, the Suprem e Court of Virginia granted respondent’s m otion to dism iss the habeas petition. The Court concluded the first three grounds were barred under Brooks v. Pey ton, 210 Va. 318 (1969), because a habeas petition cannot be used as a substitute for an appeal. Further, the Court held ground four was barred by the rule in Slay ton v. Parrigan, 215 Va. 27 (1974), as it could have been raised during the direct appeal process, but Petitioner had failed to do so. Finally, the Court held that ground five satisfied neither the perform ance nor prejudice prongs of the two-part test enunciated in Strickland v. W ashington, 466 U.S. 668, 687 (1984). On March 11, 20 15, Petitioner filed the instant Petition, alleging four prim ary grounds for relief: (1) The petitioner received ineffective assistance of trial counsel in violation of the Sixth Am endm ent to the United States Constitution when: A. Counsel failed to properly conduct adequate pre-trial and trial investigation, ultim ately leading counsel to fail to properly preserve several essential evidentiary issues for review. B. Counsel was ineffective for failing to term inate his representation of the Petitioner as counsel was running for a political office which not only distracted counsel from giving the Petitioner’s case the attention required, but created a conflict of interest with counsel’s position as the Petitioner’s defense attorney. (2) The Petitioner was unconstitutionally denied due process under the Fifth and Fourteenth Am endm ents of the United States Constitution when he was convicted based upon evidence insufficient to support a finding of guilt beyond a reasonable doubt. A. The Com m onwealth failed to prove the Petitioner and co-defendant form ed an express agreem ent to com m it the crim es of abduction and m alicious wounding beyond a reasonable doubt. B. The Com m onwealth failed to present sufficient evidence establishing the elem ent of “Malice” but instead established the defendant acted in the “Heat of Passion” and thus the Com m onwealth failed to prove the defendant m aliciously wounded Bradford. 4 C. The evidence was legally insufficient to convict Petitioner of abduction because the Com m onwealth failed to offer sufficient evidence of force or prove any m ovem ent of Bradford from one location to another was other than incidental to the unlawful wounding. (3) The Petitioner received ineffective assistance of counsel in violation of the Sixth Am endm ent to the United States Constitution when appellate counsel failed to properly investigate the Petitioner’s case in order to determ ine viable issues on appeal, and ultim ately counsel only raised issues that had not been preserved for appellate review in the trial court record. (4) The prosecutor engaged in m isconduct that ultim ately prejudiced the petitioner. (Mem . in Supp. of Pet. at 2.) Petitioner further requests an evidentiary hearing on these m atters. (Id.) On May 14, 20 15, Respondent filed a response to the Petition and a Motion to Dism iss (ECF Nos. 5, 6). Petitioner subsequently filed an opposition to the Motion to Dism iss on May 27, 20 15 (“Reply Mem .”) (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 5 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 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 6 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 In reviewing Petitioner’s present § 2254 Petition and Respondent’s Motion to Dism iss, the Court m ust first determ ine whether Petitioner has exhausted his claim s in state court and whether those claim s are barred by procedural default. Brow n v. Pixley , No. 1:12cv293, 20 12 WL 65550 0 9, at *2 (E.D. Va. Dec. 12, 20 12). (1) Claim s Raised in the Virginia Suprem e Court (Claim 2) Beginning with the latter doctrine of procedural default, “[a] federal claim is deem ed procedurally defaulted where ‘a state court has declined to consider the claim ’s m erits on the basis of an adequate and independent state procedural rule.’” Hedrick v. True, 443 F.3d 342, 359 (4th Cir. 20 0 6) (quoting Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)). A state court’s determ ination “that a claim has been procedurally defaulted, . . . is entitled to a presum ption of correctness on federal habeas corpus review, provided” that: (1) the state court explicitly relied on the procedural ground in denying petitioner relief; and (2) the procedural rule is an independent and adequate 2 state ground for denying relief. Brow n, 20 12 WL 65550 0 9, at *2. When these two requirem ents are satisfied, federal review of the claim s is barred unless petitioner can show cause 3 and prejudice 4 for the default or a fundam ental m iscarriage of 2 An adequate rule is one that is “regularly or consistently applied by the state court,” and a rule is independent “if it does not depend[] on a federal constitutional ruling.” Hedrick, 443 F.3d at 359 (citations and internal quotation m arks om itted). 3 To establish “cause,” a petitioner “m ust establish that som e objective factor external to the defense im peded counsel’s efforts to raise the claim in state court at the appropriate time.” Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998) (citations and internal quotation m arks om itted). “Exam ples of these external factors are situations where the factual or legal basis for a claim is not reasonably available to counsel or where som e interference by officials m akes com pliance with the procedural rule im practicable.” McN eill v. Polk, 476 F.3d 20 6, 214 (4th Cir. 20 0 7). 4 “To show prejudice, a petitioner m ust show that the alleged constitutional violation worked to his actual and substantial disadvantage, infecting his entire trial with error of a constitutional m agnitude.” W inston, 624 F. Supp. 2d at 492 (citation om itted). 7 justice 5. W inston v. Kelly , 624 F. Supp. 2d 478, 491– 92 (W.D. Va. 20 0 8) (citing Colem an v. Thom pson, 50 1 U.S. 722, 750 (1991)). 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 70 7, 716 (4th Cir. 20 10 ). Petitioner’s insufficiency of the evidence allegations in his second claim for relief were previously presented to the Suprem e Court of Virginia by way of a petition for appeal. (Br. in Supp. of Mot. to Dism iss, Ex. 1, attachm ent F.) The Suprem e Court of Virginia dism issed the petition pursuant to Virginia Suprem e Court Rule 5:17(c)(1)(iii) 6 , finding “that the assignm ents of error in the petition for appeal are insufficient as they do not address the ruling of the Court of Appeals.” (Id. at attachm ent D.) The Fourth Circuit has consistently held that Virginia Suprem e Court Rule 5:17 is an independent and adequate state ground. Hedrick, 443 F.3d at 360 – 63; Yeatts v. Angelone, 166 F.3d 255, 264– 65 (4th Cir. 1999); Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999). Therefore, because the Virginia Suprem e Court declined to consider the claim s’ m erits on the basis of an adequate and independent state procedural rule, the present review of Petitioner’s federal claim s is barred unless Petitioner can show cause and actual prejudice, or a m iscarriage of justice. See W inston, 624 F. Supp. 2d 491 (citing Colem an, 50 1 U.S. at 750 ). However, Petitioner satisfies none of the above. In his response to Respondent’s Motion to Dism iss, Petitioner inexplicably argues that 5 A fundamental m iscarriage of justice, excusing procedural default, occurs where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 20 10 ) (internal quotation m arks om itted) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). 6 Virginia Suprem e Court Rule 5:17(c) requires that a petition for appeal include “assignm ents of error” and specifically notes, An assignm ent of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which m erely states that the judgm ent or award is contrary to the law and the evidence, is not sufficient. An assignm ent of error in an appeal from the Court of Appeals to the Supreme Court which recites that "the trial court erred" and specifies the errors in the trial court, will be sufficient so long as the Court of Appeals ruled upon the specific m erits of the alleged trial court error and the error assigned in this Court is identical to that assigned in the Court of Appeals. If the assignm ents of error are insufficient, the petition for appeal shall be dism issed. Va. Sup. Ct. R. 5:17(c)(1)(iii). 8 his “claim s regarding ineffective assistance of counsel contain the Petitioner’s sufficiency argum ents because the Petitioner’s ineffective assistance claim is prem ised upon the fact that trial and appellate counsel failed to actually preserve the m ost integral issues from the Petitioner’s trial, for appellate review, via trial court objection.” (Reply Mem . at 3.) He asserts that his “claim of ineffective assistance of trial and appellate counsel reflects the fact that the Petitioner’s valid argum ents concerning the sufficiency of the evidence of conviction were never properly assessed and that is purely because of counsel’s prior ineffectiveness.” (Id. at 3– 4.) Based on the foregoing, Petitioner concludes that cause is shown. Interpreting Petitioner’s claim s liberally, the Court assum es that Petitioner is attem pting to argue that “[a] valid nondefaulted ineffective assistance of counsel claim can constitute cause and prejudice and, thereby, excuse a procedural default.” W inston, 624 F. Supp. 2d at 492 (citation om itted); see also Edw ards v. Carpenter, 529 U.S. 446, 451 (20 0 0 ) (“[I]neffective assistance adequate to establish cause for the procedural default of som e other constitutional claim is itself an independent constitutional claim .”). Im portantly, however, the ineffective assistance of counsel claim “m ust be presented to the state courts as an independent claim before it m ay be used to establish cause for a procedural default.” Edw ards, 529 U.S. at 452 (citation and internal quotation m arks om itted); see also M urray v. Carrier, 477 U.S. 478, 48 8 – 89 (1986). As explained below, Petitioner’s ineffective assistance of counsel claim s were not raised in the state courts and thus such claim s cannot provide a basis for cause. Because no cause exists, the Court need not discuss the issue of prejudice. Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998). Finally, Petitioner does not even attem pt to claim that he is actually innocent, and thus he cannot dem onstrate a m iscarriage of justice. See Sharpe, 593 F.3d at 377. For those reasons, Petitioner’s Claim 2 is procedurally defaulted. // // 9 (2) Claim s Not Raised in the Virginia Suprem e Court (Claim s 1, 3 and 4) As Respondent notes, “a federal court m ay not grant a writ of habeas corpus to a petitioner in state custody un less the petitioner has first exhausted his state rem edies by presenting his claim s to the highest state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 20 0 0 ); see also 28 U.S.C. § 2254(b)(1)(A). The purpose of exhaustion is rooted in the principles of com ity and perm its “the state [to] be given the first opportunity to correct constitutional errors in crim inal proceedings.” Id. A claim will not be deem ed to be exhausted if petitioner “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 Fourth Circuit in Baker, however, noted that the Court has never strictly construed the requirem ent that a claim be raised “by any available procedure.” Baker, 220 F.3d at 288. “Rather, the exhaustion requirem ent is satisfied so long as a claim has been ‘fairly presented’ to the state courts.” Id. (citation om itted). This prohibits “petitioner [from ] present[ing] new legal theories or factual claim s for the first tim e in his federal habeas petition.” Breard, 134 F.3d at 619; see also Pow ell v. Kelly , 492 F. Supp. 2d 552, 560 (E.D. Va. 20 0 7) (citations om itted) (“The exhaustion doctrine does not prevent a petitioner from presenting evidence to the federal habeas court that was not presented to the state courts, provided that new evidence m erely ‘supplem ents,’ and does not ‘fundam entally alter,’ the claim raised in the state petition.”). The burden of proving exhaustion lies with the Petitioner. Breard, 134 F.3d at 619. However, this does not end the exhaustion analysis. If a petitioner fails to present a claim to the highest state court, the claim m ay nevertheless be deem ed exhausted “if it is clear that the claim would be procedurally barred under state law if the petitioner attem pted to present it to the state court.” Baker, 220 F.3d at 288 (citing Gray v. N etherland, 518 U.S. 152, 161 (1996)). For exam ple, “[u]nder Virginia law, a petitioner is barred from raising any claim in a successive petition if the facts as to that claim were either known or available to petitioner at the tim e of his original petition.” Breard, 135 F.3d at 619 (citation and internal quotation m arks om itted); see 10 also Va. Code § 8.0 1-654(B)(2) (“No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the tim e of filing any previous petition.”). This procedural bar “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim , unless the petitioner can dem onstrate cause and prejudice for the default.” Gray , 518 U.S. at 162 (citations om itted). Petitioner did not present claim s one, three and four to the Suprem e Court of Virginia. 7 These claim s would now be procedurally barred under Virginia Code § 8.0 1-645(B)(2). Because the procedural bar that gives rise to exhaustion is an independent and adequate state ground, Gray , 518 U.S. at 162, the instant claim s m ust be treated as sim ultaneously exhausted and procedurally barred from federal habeas review. See Sparrow v. Dir., Dep’t of Corr., 439 F. Supp. 2d 584, 588 (E.D. Va. 20 0 6). However, Petitioner m ay overcom e procedural default if he can show cause and prejudice for the default, or a m iscarriage of justice. See Gray , 518 U.S. at 162. As to “cause,” Petitioner needs to dem onstrate the existence of: (1) a denial of effective assistance of counsel, (2) a factor external to the defense which im peded com pliance with the state procedural rule, or (3) the novelty of the claim . Clozza v. Murray , 913 F.2d 10 92, 110 4 (4th Cir. 1990 ). But Petitioner again fails to carry his burden for the following reasons. Petitioner’s first and third claim s allege ineffective assistance of counsel. 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 7 Petitioner claim s that “in his appeal to the Suprem e Court of Virginia challenging the denial of his postconviction motion, the Petitioner raised all of the substantive issues raised herein.” (Reply Mem . at 4.) However, upon review of the relevant filings, Petitioner’s instant Petition clearly presents new legal theories and factual claim s. Breard, 134 F.3d at 619. 11 “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 petitioner 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 probability sufficient to underm ine confidence in the outcom e.” Id. at 694. This ineffective assistance of counsel standard likewise applies to direct appeals of crim inal convictions. Evitts v. Lucey , 469 U.S. 387, 396 (1985). The Fourth Circuit has additionally held that appellate counsel’s decision as to which issues are suitable for appeal “is entitled to a presum ption that [counsel] decided which issues were m ost likely to afford relief on appeal.” Pruett v. Thom pson, 996 F.2d 1560 , 1568 (4th Cir. 1993). In Petitioner’s claim 1(A), Petitioner alleges that “counsel failed to properly conduct adequate pre-trial and trial investigation.” (Mem . in Supp. of Pet. at 4.) Specifically Petitioner argues that “counsel’s preparation for trial was woefully inadequate,” which “led counsel to fail to recognize and challenge the m ost integral evidentiary issues presented against the Petitioner.” (Id. at 7.) The Fourth Circuit has held that an allegation of inadequate investigation m ust be supported by a proffer of what favorable evidence or testim ony would have been produced. Beaver v. Thom pson, 93 F.3d 1186, 1195 (4th Cir. 1996). Petitioner, however, does not allege anything beyond m ere conclusory allegations, and therefore Claim 1(A) is without m erit. Moreover, “[a]lthough counsel should conduct a reasonable investigation into potential defenses, Strickland does not im pose a constitutional requirem ent that counsel uncover every scrap of evidence that could conceivably help their client.” Tucker v. Ozm int, 350 F.3d 433, 442 12 (4th Cir. 20 0 3) (citations and internal quotation m arks om itted). The record supports the conclusion that Petitioner’s counsel conducted a reasonable investigation. Petitioner’s counsel investigated each of the three potential witnesses that Petitioner identified. (Br. in Supp. of Mot. to Dism iss, Ex. 1, attachm ent G at pg. 3– 4.) Additionally, Petitioner and his counsel “discussed [their] trial strategy m any tim es,” and counsel “attem pted to put [their] plan into effect at trial, to the extent possible.” (Id. at pg. 2.) In Claim 1(A) Petitioner also intim ates that counsel was ineffective for “fail[ing] to preserve any actual evidentiary issues for appellate review.” (Mem . in Supp. of Pet. at 7.) However, again Petitioner fails to highlight any argum ent defense counsel could have reasonably m ade. Counsel is not ineffective for failing to m ake futile m otions, see Moody v. Polk, 40 8 F.3d 141, 151 (4th Cir. 20 0 5), and thus without further support, Petitioner’s claim cannot stand. Claim 1(B) alleges that “counsel was in direct and actual conflict of interest in representing the Petitioner because counsel represented the Petitioner during the sam e period in which counsel was running for a political office in the Com m onwealth.” (Mem . in Supp. of Pet. at 7.) Petitioner alleges that counsel should have withdrawn from the case “after repeated requests by the Petitioner for a different attorney.” (Id.) “When defense counsel’s perform ance is im peded by an actual conflict of interest, counsel ‘breaches the duty of loyalty, perhaps the m ost basic of counsel’s duties,’ and renders ineffective assistance.” Fullw ood v. Lee, 290 F.3d 663, 689 (4th Cir. 20 0 2) (citing Strickland, 466 U.S. at 692). If a habeas petitioner alleges a conflict of interest claim , “petitioner m ust show (1) that his attorney had ‘an actual conflict of interest’ and (2) that the conflict of interest ‘adversely affected his lawyer’s perform ance.’” Id. (quoting Cuy ler v. Sullivan , 446 U.S. 335, 348 (1980 )). If the petitioner can establish both of these elem ents, “then prejudice to the defense is presum ed and a new trial m ust be ordered.” Id. (citations and internal quotation m arks om itted). Here, Petitioner cannot show that his counsel had an “actual conflict of interest.” No 13 divergence existed between counsel’s interests and Petitioner’s interests with respect to a m aterial factual or legal issue or to a course of action. See United States v. Nicholson, 475 F.3d 241, 249 (4th Cir. 20 0 7). Counsel’s affidavit declares that he fought zealously for all of his clients during his cam paign for Com m onwealth’s Attorney. (Br. in Supp. of Mot. to Dism iss, Ex. 1, attachm ent G at pg. 1.) He “want[ed] to dem onstrate to potential voters that he was an effective litigator, [and] [] also was m otivated to dem onstrate that the Office of the Com m onwealth’s Attorney was losing cases that should have been won.” (Id.) Thus, Petitioner’s claim 1(B) is also unavailing. Next, in Petitioner’s third claim for relief, he argues that appellate counsel was ineffective for failing to “properly investigate the Petitioner’s case in order to determ ine viable issues on appeal.” (Mem . in Supp. of Pet. at 14.) He argues that appellate “counsel raised issues that had not been properly objected to during trial and therefore, were not properly preserved.” (Id. at 16.) But, as the Governm ent notes, Petitioner fails to proffer or otherwise identify what helpful evidence or legal theories further investigation would have revealed. In other words, he fails to present any facts dem onstrating that appellate counsel’s representation fell below “an objective standard of reasonableness,” or that he was prejudiced as a result of his attorney’s actions. Petitioner’s bare, conclusory allegations do not support a claim of ineffective assistance of counsel. See N ickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrogated on other grounds by Gray , 518 U.S. at 165– 166. Because Petitioner cannot dem onstrate cause for his procedural default, his claim s that were not raised in the Virginia Suprem e Court are procedurally barred. See Breard, 134 F.3d at 620 (if Petitioner cannot show cause for his default, the issue of prejudice need not be addressed).8 // 8 Petitioner also does not attem pt to argue a m iscarriage of justice to excuse his procedural default. 14 IV. EVID EN TIARY H EARIN G Petitioner requests an evidentiary hearing on the issues raised in the present Petition. (Mem . in Supp. of Pet. at 2.) 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, 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, habeas relief under § 2254 is precluded, and thus the request for an evidentiary hearing is denied. V. 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 48 4). For the reasons stated m ore fully above, no law or evidence suggests Petitioner is entitled to further consideration of his claim s. Accordingly, the Court DENIES a certificate of appealability. VI. CON CLU SION For the foregoing reasons, the Court DISMISSES 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 15 record. _____________________/s/__________________ James R. Spencer Senior U. S. District Judge An appropriate Order shall issue. ENTERED this _ 10 th_ _ _ day of J une 20 15. 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
