United States District Court, E.D. Virginia, Alexandria Division
GERALD BRUCE LEE, District Judge.
This Matter comes before the Court on respondent's Motion to Dismiss this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed pro se by Cecil Jarrett, a Virginia inmate. Petitioner challenges the constitutionality of his convictions of possession with intent to distribute heroin and felony child neglect following a jury trial in the Circuit Court of York County. Mier respondent moved to dismiss the petition, Jarrett was given the opportunity to tile responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he filed a response captioned as a Motion of Response Ple[a]ding. Dkt. 16. After careful consideration, for the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.
On June 3, 2010, a jury in York County found petitioner guilty of one count of possession with intent to distribute heroin, third offense, and one count of felony child neglect. Case Nos. CR10-6082-01 and -02. Pursuant to the jury's recommendation, the court sentenced petitioner to ten (10) years in prison for the drug conviction and two (2) years for child neglect, tier a total period of twelve (12) years incarceration. The facts underlying the convictions were described by the Virginia Court of Appeals as follow:
[T]he evidence proved that on July 13, 2009, Christopher Herndon agreed to assist the police in making a controlled drug purchase. Herndon contacted appellant and sought to purchase twenty bundles of heroin. Herndon agreed to purchase fourteen bundles, which was all the heroin appellant had, for two hundred dollars. Herndon traveled to the agreed-upon location with Officer D. Tyree. Appellant approached the vehicle and knocked on the window. Tyree identified appellant as the man who came to the car. Herndon exited the vehicle, and Tyree observed the two men engage in a hand-to-hand transaction. Herndon returned to the car and gave the officer the heroin he had just purchased. Other officers immediately approached appellant. He had entered the backseat of a waiting car, and the same money the police had given to Herndon to conduct the buy was on the seat next to appellant. Appellant's eight-year-old child was also in the car.
Appellant admitted accepting the money from Herndon in the parking lot but claimed the money was for payment of funds Herndon owed him.
Jarrett v. Commonwealth, R. No. 2048-10-1 (Va.App. Mar. 16, 2011, slip op. at 1-2; Resp. Ex. A.
Jarrett prosecuted a direct appeal, raising the sole claim that the evidence was insufficient to sustain both convictions where the Commonwealth's evidence was based in whole on the testimony of a convicted felon who had made conflicting statements. Resp. Ex. A, Pet. for App. at 3. A judge denied the petition for appeal on March 16, 2011. Jarrett v. Commonwealth, supra. A three-judge panel reached the same result on May 27, 2011. Resp. Ex. A. Petitioner sought further review by the Supreme Court of Virginia, but his petition was refused. Jarrett v. Commonwealth, R. No. 111105 (Va. Oct. 12, 2011); Resp. Ex. B.
In July, 2012, Jarrett filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia. Petitioner specified no claims on the face of the form petition, although in response to the request that he list each ground that had not been previously presented to a court, he wrote without further explanation, "Ineffective assistance can only be brought via writ of habeas corpus." Pet. at 6. Appended to the form petition was a document petitioner captioned as a "Memorandum of Law" in which he raised the sole claim that he was denied a fair trial because the prosecutor knowingly used false or perjured testimony. On January 14, 2013, the Supreme Court of Virginia granted the Commonwealth's motion to dismiss the petition. Specifically, the Court held that the claim that petitioner was deprived of a fair trial was barred because it had been raised and decided in the trial court and on direct appeal, and so could not be raised in a habeas petition. The order made no mention of a separate claim of ineffective assistance of counsel. Jarrett v. Dir., Dep't Of Corrections, R. No. 121220 (Va. Jan. 14, 2013).
Jarrett timely filed the instant application for § 2254 relief on or about May 1, 2013,  reiterating the claim that he was deprived of a fair trial by the Commonwealth's knowing use or false or perjured testimony. On September 19, 2013, respondent filed a Rule 5 Answer and a Motion to Dismiss, along with a supporting brief and exhibits. Petitioner filed a reply on October 4, 2013. Accordingly, the petition is now ripe for disposition.
II. Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudication is contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each standard. See Williams v. Taylor , 529 U.S. 362, 412-13 (2000). A state court determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . Importantly, this standard of reasonableness is an objective one. Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court decision that previously addressed the claims rather than the petitioner's free-standing claims themselves." McLee v. Angelone , 967 F.Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139 F.3d 891 (4th Cir. 1998) (table).
Petitioner makes the same claim in this federal proceeding that he pursued on direct appeal - namely, that his right to a fair trial was violated because the Commonwealth knowingly used the false testimony of Christopher Herndon to procure his convictions. Petitioner bases his argument on a notarized letter Herndon wrote on March 5, 2010, while confined at the Virginia Peninsula Regional Jail ("VPRJ"). In the ...