United States District Court, E.D. Virginia
LEONIE M. BRINKEMA, District Judge.
Eric Roundtree, 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 with intent to distribute cocaine entered on a plea of guilty in the Circuit Court for the City of Portsmouth. On September 2, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and after receiving an extension of time petitioner submitted a traverse on October 15, 2014. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.
At a hearing on July 22, 2011, Roundtree entered a negotiated plea of guilty to possession with intent to distribute a schedule H controlled substance, and a charge of transporting a schedule II substance into the Commonwealth was nolle prosequi. Prior to the hearing, Roundtree had completed and executed a guilty plea questionnaire, and at the hearing the court engaged Roundtree in a detailed plea colloquy. Resp. Ex. 1, Sub-Ex. A, D. At a hearing on September 26, 2011, Roundtree received a sentence of twenty-five (25) years imprisonment with five (5) years suspended, and was ordered to pay a fine of $10, 000.00. Resp. Ex. 1, Sub-Ex. E at 24.
On direct appeal to the Court of Appeals of Virginia, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), along with a motion to withdraw. The sole arguable error cited was that the trial court abused its discretion in sentencing Roundtree to twenty-five years active incarceration. On review, the appellate court rejected this argument and found the appeal to be "wholly frivolous." Roundtree v. Commonwealth, R. No. 2091-11-1 (May 9, 2012). No petition for further review was filed with the Supreme Court of Virginia.
On May 14, 2013, Roundtree timely filed a petition for a state writ of habeas corpus in the trial court, raising the following claims:
1. He received ineffective assistance of counsel when his attorney failed to conduct a pretrial investigation of the case and to interview Brian Meeks.
2. He received ineffective assistance of counsel when his attorney failed to move to suppress evidence.
3. His plea was rendered involuntary and counsel provided ineffective assistance because he was misled as to the sentencing provision of the plea agreement.
4. He received ineffective assistance of counsel when his attorney failed to investigate mitigating evidence prior to sentencing and to challenge inflammatory and unproved statements made by the prosecutor at sentencing.
5. He received ineffective assistance of appellate counsel because his attorney failed to properly perfect an appeal on his behalf.
The trial court rejected each of Roundtree's arguments in a detailed Final Order dated July 29, 2013. Roundtree v. Clark, Case No. CL XXXXXXXX-XX; Resp. Ex. 3. Roundtree's petition for appeal of that result was refused by the Supreme Court of Virginia on April 24, 2014. Roundtree v. Wright, R. No. 131273 (Va. Apr. 24, 2014); Resp. Ex. 4.
Roundtree then turned to the federal forum and timely filed the instant application for § 2254 relief on May 9, 2014, reiterating the same claims he raised in the state habeas corpus action. As noted above, respondent has filed a Rule 5 Answer and a Motion to Dismiss the petition, and petitioner has filed a reply. Accordingly, this matter is now ripe for disposition. For the reasons which follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.
II. Procedural Bar
In Claim 3 of his federal petition, Roundtree argues in part that his guilty plea was rendered involuntary when counsel misled him regarding the sentencing provision of the plea agreement. When Roundtree made this same contention in the state habeas proceeding, the court held that "such a claim is trial error and not cognizable in habeas corpus.... Slayton v. Parrigan, 215 Va. 27, 29, 2005 S.E.2d 680, 682 (1974). Because the voluntariness of petitioner's plea could have ...