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Yo v. Lester

United States District Court, E.D. Virginia, Richmond Division

July 1, 2014

YO, Petitioner,
v.
LAYTON LESTER, Respondent.

MEMORANDUM OPINION

JAMES R. SPENCER, Sr., District Judge.

Yo, formerly known as Mario Ballard, a Virginia prisoner proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition").[1] Yo challenges his conviction in the Circuit Court for the County of Nottoway, Virginia ("Circuit Court"). Yo demands relief upon the following grounds:

Claim 1 Yo failed to receive the effective assistance of counsel:[2]
(a) Counsel "had a mental disorder while he was representing the Petitioner." (§ 2254 Pet. 5.)
(b) "Counsel committed acts, such as not objecting during trial, not filing pretrial motions [and], not allowing Petitioner's witnesses to review a video that was used against him during his trial." (Id.)
(c) "Counsel was thoroughly steeped in corruption." (Id. (citations omitted).)
Claim 2 "Trial judge knew that Petitioner's counsel was corrupted when he appointed him to represent Petitioner; trial judge biased the trial jury against the Petitioner; Trial judge allowed an ambiguous indictment to stand against Petitioner; and trial judge allowed the accuser not be confronted by Petitioner." (Id. at 6 (citations omitted).)
Claim 3 Prosecutorial bias... the prosecution informed the trial jury of Petitioner's prior conviction and incarceration through its voir dire of its witnesses.." (Id. at 8 (citations omitted).)
Claim 4 "Petitioner's indictment was ambiguous because it stated all of the elements for the Code of malicious wounding. It was not specific as to what he did." (Id. at 10.)

Respondent has moved to dismiss. Yo has responded. For the reasons set forth below, the Court will dismiss Claims 2 through 4 as procedurally defaulted and Claims 1(a) through (c) as lacking in merit.

I. PROCEDURAL HISTORY

A jury in the Circuit Court found Yo guilty of malicious wounding. Commonwealth v. Ballard, No. CR090000083-00, at 1-3 (Va. Cir. Ct. Jan. 8, 2010). Thereafter, the Circuit Court sentenced Yo to ten years of imprisonment. Id. at 2.

A. First State Habeas Petition

On March 1, 2011, Yo filed a petition for a writ of habeas corpus with the Supreme Court of Virginia ("First State Habeas Petition") alleging, inter alia, that he failed to receive the effective assistance of counsel in conjunction with the pursuit of an appeal. On July 29, 2011, the Supreme Court granted Yo's First State Habeas Petition with respect to his claim that he had failed to receive the effective assistance of counsel in conjunction with his appeal and permitted Yo to pursue a delayed appeal. Ballard v. Warden, No. 110548, at 1 (Va. July 29, 2011). The Supreme Court of Virginia dismissed the remainder of Yo's claims "without ...


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