United States District Court, E.D. Virginia, Richmond Division.
JOHN A. GIBNEY, Jr., District Judge.
Eric Adam Grueninger, a Virginia state prisoner proceeding pro se and in forma pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his convictions in the Circuit Court of the County of Hanover, Virginia ("Circuit Court"). In his § 2254 Petition,  Grueninger argues entitlement to relief based upon the following grounds:
Claim One: "5th and 14th Amendment Violations[.] Counsel not present during custodial interrogation" (§ 2254 Pet. 16.)
Claim Two: Counsel rendered ineffective assistance by:
(a) failing to move to suppress Grueninger's statement;
(b) failing to properly cross-examine a witness;
(c) failing to request a mental health evaluation of Grueninger prior to sentencing;
(d) failing to move for a reduction in sentence;
(e) failing to file an appeal;
(f) failing to argue that his wife "was behind the allegations against me" (id. at 25);
(g) improperly stating that he filed a discovery motion.
Respondent moves to dismiss the § 2254 Petition. Respondent provided Grueninger with appropriate Roseboro notice. (ECF No. 14.) Grueninger has responded. The matter is ripe for disposition.
I. PROCEDURAL HISTORY
Following a bench trial, the Circuit Court convicted Grueninger of two counts of indecent liberties with a child under age fifteen, two counts of aggravated sexual battery by a parent with a child at least thirteen but less than fifteen, one count of rape, three counts of forcible sodomy, two counts of object sexual penetration, nine counts of possession of child pornography, and one count of distribution of child pornography. Commonwealth v. Grueninger, No. CR09000338, at 1-4 (Va. Cir. Ct. Nov. 24, 2009). Thereafter, the Court sentenced Grueninger to 235 years in prison with 147 years suspended. Commonwealth v. Grueninger, No. CR09000338 (Va. Cir. Ct. Feb. 3, 2010).
Grueninger appealed to the Court of Appeals of Virginia arguing insufficient evidence existed to convict him. Petition for Appeal at 2, Grueninger v. Commonwealth, No. 0431-10-2 (Va. Ct. App. filed June 1, 2010). The Court of Appeals of Virginia denied the petition for appeal. Grueninger v. Commonwealth, No. 0431-10-2, at 1 (Va. Ct. App. Aug. 30, 2010). The Supreme Court of Virginia refused Grueninger's subsequent petition for appeal. Grueninger v. Commonwealth, No. 102257, at 1 (Va. May 4, 2011).
Grueninger filed a petition for a writ of habeas corpus in the Circuit Court raising Claims One, Two (a), (c), (e), and (g) of the instant § 2254 Petition. Petition for Writ of Habeas Corpus at 6-7, Grueninger v. Dir. of the Va. Dep't of Corr., No. CL11001384-00 (Va. Cir. Ct. filed August 8, 2011). Finding that Grueninger had defaulted his first claim (Claim One) under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), and that Grueninger failed to demonstrate ineffective assistance of trial counsel, the Circuit Court dismissed his petition. Grueninger v. Dir. of the Va. Dep't of Corr., No. CL11001384-00, at 1-8 (Va. Cir. Ct. Dec. 12, 2011). Grueninger filed an appeal to the Supreme Court of Virginia. Petition for Appeal at 1, Grueninger v. Dir. of the Va. Dep't of Corr., No. 120359 (Va. filed Mar. 1, 2012). Finding no reversible error, the Supreme Court of Virginia refused the Petition for Appeal. Grueninger v. Dir. of the Va. Dep't of Corr., No. 120359, at 1 (Va. June 19, 2012).
II. EXHAUSTION AND PROCEDURAL DEFAULT
State exhaustion "is rooted in considerations of federal-state comity, '" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (ED. 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 before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas ...