United States District Court, E.D. Virginia, Alexandria Division
T.S. ELLIS, III, District Judge.
Stacey Howard, 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 ofhis conviction in the Circuit Court for the City of Portsmouth for robbery and for use ofa firearm while conmiitting that offense. Respondent has filed a Rule 5 Answer and a Motion to Dismiss with a supporting brief and exhibits. Petitioner was given the opportunityto file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he has filed a Reply Brief. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed.
On December 13, 2010, a jury convicted petitioner of(1) robbery and (2) use of a firearm in committing a felony. Case Nos. CR09002151-01 and CR09002151-02. Following a sentencing hearing on July 6, 2011, he was sentencedto serve an aggregate ofeleven years in prison. Petitioner appealed the convictions to the Courtof Appeals of Virginia, raising onlya claim that the evidence was insufficient to sustain the convictions for both crimes. A single judge aflfirmed the convictions, Howard v. Commonwealth, R. No. 1409-11-1 (Va. Ct. App. Feb. 28, 2012), and a three-judge panel subsequently also denied petitioner's appeal. Howard's petition for appeal to the Supreme Court of Virginia was refused on October 31, 2012. Howard V. Commonwealth, R. No. 121040 (Va. Oct. 31, 2012).
On October 25, 2015, Howard filed a petition for a state writ ofhabeas corpus in the Supreme Court of Virginia, raising the following claims:
a. Trial counsel was constitutionally ineffective for failing to challenge the victim/witnesses' identification of petitioner as the robber on the grounds that any line-up or photo array may have been suggestive, and that the witnesses who identified petitioner at trial provided only a minimal physical description of the perpetrator on the evening of the offense.
b. Trial counsel was constitutionally ineffective for failing to introduce witness statements and a probable cause summary into evidence for thejury to consider.
c. Trial counsel was constitutionally ineffective for failing to subpoena Detective M.O. Murray to testify (i) that on the night of the robbery neither the victim nor his wife could identify the petitioner as the perpetrator and (ii) that another person, Michael Hicks, was arrested for the offense based upon information provided byanother witness.
d. Trial counsel was constitutionally ineffective for failing to call Elaine Howard and other unnamed individuals as alibi witnesses.
e. Trial counsel was constitutionally ineffective for failing to call petitioner's orthopedic doctors to testify that petitioner needed an operation on his ankle.
f. Trial counsel was constitutionally ineffective for failing to object (i) that petitioner was not given Miranda warnings at the time of his arrest and (ii) that petitioner requested a lawyer at the time of his arrestbut wasneverthelessquestionedbypoliceforseveralhoursand his statements from this interrogation were used at trial.
g. The Commonwealth violatedhis rightto due processbywithholding evidence and witnesses, and by failing to prove his guilt beyond a reasonable doubt.
h. Trial counsel was constitutionally ineffective and his deficient performance prejudiced petitioner because (i) the outcome of the trial was unfair and unreasonable and (ii) as petitioner claimed, counsel "refused to assist [petitioner] in presenting false evidence or otherwise violating the law."
By Order dated March 18, 2014, Howard's state habeas application was denied. Specifically, the Supreme Court of Virginia rejected all of the arguments on the merits with the exception of claim (g), which was held to be barred pursuant to the rule of Slavton v. Parriean, 215 Va. 27, 29-30, 205 S.E.2d 680, 682 (1974). Howardv. Warden, R. No. 131681 (Va. Mar. 18, 2014); Resp. Ex. A.
On May 16, 2014, Howard timely filed the instant federal petition, raising the following claims:
1. The victim/witnessesfailedto identifypetitioneras the perpetratorof the robbery in a line-up or photo array prior to his appearance in court.
2. Trial counsel was constitutionallyineffectivefor failing to subpoena Detective M.O. Murray to testify that neither the victim nor his wife could identify the petitioner as the perpetrator on the night of the robbery and that another person, Michael Hicks, was arrested for the offense.
3. Trial counsel provided constitutionally ineffective assistance by failing to introduce into evidence surveillance video which petitioner claims ...