United States District Court, E.D. Virginia, Alexandria Division
ANTHONY J. TRERGA, District Judge.
George Mills. Jr., a Virginia inmate proceeding pro se, has tiled a petition for a writ of habeas corpus. pursuant to 28 U.S.C. § 2254. On June 7. 2013, respondent filed a Motion to Dismiss and accompanying memorandum with supporting exhibits, and advised petitioner of his right to file responsive materials, as required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Civil Rule 7(K). Petitioner filed a response on August 2, 2013. For the reasons that follow, Mills's claims must be dismissed.
Petitioner was convicted. pursuant to his guilty plea. in the Circuit Court for the City of Fairfax. Virginia on April 23, 2010. of statutory burglary, burglary, and abduction. Pet. 1. The court sentenced petitioner to 35 years in prison with 10 years suspended. Id . Petitioner's direct appeal of that determination was refused by the Court of Appeals of Virginia on January 31, 2011. Mills v. Commonwealth. R. No. 1449-10-4 (Va. Ct. App. Jan. 31, 2011). Petitioner did not appeal the Virginia Court of Appeals's decision. On or about April 11, 2011. petitioner filed a petition for a writ or habeas corpus in the Fairfax County Circuit Court, which dismissed his petition on February 27, 2012. Petitioner then appealed to the Supreme Court of Virginia, which dismissed his appeal as untimely on September 13, 2012. Mills v. Commonwealth. R. No. 121288 (Va. Sept. 13, 2012). On February 8. 2013. Mills filed the instant federal habeas petition raising the following claims:
1. Ineffective Assistance of Counsel
(A) Counsel was ineffective for not advising him that the Judge could exceed the sentencing guidelines.
(B) Counsel was ineffective for not going over the guidelines with him.
(C) Counsel was ineffective for not telling him that he would receive less lime with an Alford plea.
2. Trial court erred in failing to find that petitioner was not competent to stand trial.
3. Trial Court erred in finding there was sufficient evidence to support his conviction.
4. Trial Court erred in failing to lied that petitioner was legally insane at the time or the offense.
Petitioner's claims are procedurally defaulted, and respondent's Motion to Dismiss will be granted. In reviewing a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a federal court must first determine whether the petitioner has exhausted his claims before the appropriate state courts and whether those claims are barred by a procedural default. As a general rule, a federal petitioner must first exhaust his claims in state court because exhaustion is a matter of comity to the state courts; failure to exhaust a claim requires its dismissal by the federal court. See 28 U.S.C. § 2254(b); Granberry v. Greer. 481 U.S. 129 . 134 (1987); Rose v. Lundy , 455 U.S. 509, 515-19 (1982). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel , 526 U.S. 838. 845 (1999). Thus. in Virginia. a § 2254 petitioner must first have presented the same factual and legal claims to the Supreme Court of Virginia either by way of a direct appeal, a state habeas corpus petition, or an appeal from a circuit court's denial of a state habeas petition. Matthews v. Evatt , 105 F.3d 907. 910-11 (4th Cir. 1997) (quoting Picard v. Connor. 404 U.S. 270 . 275-78 (1971) for the proposition that for a claim to be exhausted, "both the operative facts and the controlling legal principles' must be presented to the state court."); see Pruett v. Thompson , 771 F.Supp. 1428. 1436 (E.D. Va. 1991). aff'd 996 F.2d 1560 (4th Cir. 1993) (exhaustion requirement is satisfied when "allegations advanced in federal court... [are] the same as those advanced at least once to the highest state court.").
Additionally, when a state court has determined that a claim has been procedurally defaulted, its finding is entitled to a presumption of correctness on federal habeas corpus review, provided two foundational requirements are met. Harris v. Reed , 489 U.S. 255, 262-63 (1989); Clanton v. Muncy. 845 F.2d 1238 . 1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)). First, the state court must have relied explicitly on the procedural ground to deny petitioner relief. Id . Second, the state procedural rule relied on to default petitioner's claim must be an independent and adequate state ground for denying relief. Id. at 260; Ford v. Georia , 498 U.S. 411.423-24 (1991). When these two requirements have been ...