United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, District Judge.
Steven Pendergrass, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of possession of a firearm by a convicted felon in the Circuit Court of the City of Norfolk. On May 28, 2014, respondent filed a Rule 5 Answer and Motion to Dismiss with a supporting brief and exhibits, and provided petitioner with the notice required by Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. Petitioner submitted a reply brief on June 12, 2014, and complete state court records were received on July 23, 2014. Accordingly, the matter is now ripe for disposition. After careful consideration, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.
Following a jury trial, petitioner was convicted of possession of a firearm by a convicted felon and sentenced to five years imprisonment. Case No. CR11001762-01. The facts underlying the conviction were described by the Court of Appeals of Virginia as follow:
[O]n the evening of November 27, 2010, Officer Chad Beale responded to a call regarding a man with a gun. Beale arrived at the scene within minutes of receiving the call. There, he observed three men on the street, one of whom matched the description the officer received from his dispatcher. Beale parked his vehicle in front of the men and approached as the men began to walk away. Beale asked to speak with appellant. Appellant turned and Beale saw him withdraw a black handgun from the waistband of his pants and throw the weapon into a bush in front of him. Beale stood approximately ten to fifteen feet from appellant. Beale ordered appellant and the other two men to the ground and waited for backup officers to arrive. After other officers arrived, Beale located the weapon in the bush and secured it.
Pendergrass v. Commonwealth, R. No. 0418-12-1 (Va. Ct. App. Sep. 13, 2012); Resp. Ex. 1. On direct appeal, petitioner raised the sole claim that the evidence was insufficient to sustain the conviction, and the petition for appeal was denied on September 13, 2012. Id . The Supreme Court of Virginia refused a petition for further review on March 25, 2013. Pendergrass v. Commonwealth, R. No. 121745 (Va. Mar. 25, 2013); Resp. Ex. 4.
On September 4, 2013, petitioner filed an application for a state writ of habeas corpus in the trial court, raising the following claims:
A. The evidence was insufficient to show that he constructively possessed the firearm.
B. His right to due process was violated where:
(1) He was denied a copy of his trial transcript;
(2) He was denied a fair trial;
(3) The charge was unlawfully amended;
(4) A 911 tape was admitted improperly; and
(5) The judge was guilty of ...