United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
David Gregory Landeck, a Virginia state prisoner proceeding pro se brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the Circuit Court of the City of Richmond, Virginia ("Circuit Court"). In his § 2254 Petition, Landeck argues entitlement to relief based upon the following grounds:
Claim One: Counsel rendered ineffective assistance "with respect to the Commonwealth's offers of a guilty plea." (§ 2254 Pet. 9.)
Claim Two: Counsel rendered ineffective assistance "pretrial with respect to motion in limine. " ( Id. at 12.)
Claim Three: Counsel rendered ineffective assistance "with respect to counsel's failure to propose alternate jury instruction." ( Id. at 14.)
Claim Four: "Prosecutorial misconduct/ineffective assistance of counsel at trial with respect to instances of the prosecution's improper vouching and manipulating evidence by misstating defense witness' testimony during rebuttal argument." ( Id. at 15.)
Claim Five: Counsel rendered ineffective assistance by failing to move the trial court to strike "the prosecution's racially inflammatory and improper comments during rebuttal argument...." ( Id. at 18.)
Claim Six: Counsel rendered ineffective assistance on appeal. ( Id. at 20.)
Respondent moves to dismiss the § 2254 Petition on the grounds that Landeck has failed to exhaust his state court remedies as to all of his claims. Landeck has responded. For the reasons stated below, the Motion to Dismiss will be GRANTED.
I. PROCEDURAL HISTORY
Following a jury trial, the Circuit Court convicted Landeck of aggravated malicious wounding and sentenced him to an active term of ten years of incarceration. Landeck appealed, and the Court of Appeals of Virginia affirmed his conviction. Landeck v. Commonwealth, 722 S.E.2d 643, 650 (Va.App. 2012). The Supreme Court of Virginia refused Landeck's subsequent petition for appeal. Landeck v. Commonwealth, No. 120612, at 1 (Va. Sept. 13, 2012).
On September 9, 2013, Landeck filed a petition for a writ of habeas corpus in the Circuit Court. Landeck v. Gurney, No. CL13004082-00 (Va. Cir. Ct. Sept. 13, 2013); (§ 2254 Pet. 6.). On May 21, 2014, the Circuit Court denied his petition. Landeck, No. CL13004082-00 (Va. Cir. Ct. May 21, 2014). Landeck noted his appeal to the Supreme Court of Virginia on June 12, 2014, Notice of Appeal, Landeck, No. CL13004082-00 (Va. Cir. Ct. June 12, 2014), and filed his petition for appeal on August 19, 2014. Petition, Landeck v. Pruett, No. 141227 (Va. Aug. 19, 2014). The action remains pending before the Supreme Court of Virginia.
Landeck acknowledges that "[t]his is a protective petition'... which petitioner submits now, during the pendency of his post-conviction habeas in the Commonwealth of Virginia, to preserve his ability to seek subsequent review in this Court." (§ 2254 Pet. 2 (citation omitted).) Landeck asks the Court to stay and hold in abeyance the § 2254 Petition pending the resolution of his state habeas petition "in an effort to preserve petitioner's right to federal habeas review following exhaustion of state post-conviction (habeas) remedies." (Id. at 8 n.3.) For the reasons stated ...