United States District Court, E.D. Virginia, Alexandria Division
GERALD BRUCE LEE, District Judge.
This matter comes before the Court upon review of the respondent's Motion to Dismiss. Rocky Louis King, 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 validity of his conviction in the Circuit Court for the County of Fairfax, Virginia of attempted capital murder of a police officer and other offenses. The petition initially was filed on December 9, 2013. On April 10, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he filed a reply on April 25, 2014. For the reasons that follow, petitioner's claims must be dismissed.
On July 2, 2008, a jury convicted petitioner of attempted capital murder of a police officer, use of a firearm in the commission of a felony, possession of cocaine, and possession of a firearm while in possession of cocaine in the Circuit Court for the County of Fairfax. Commonwealth v. King, Case No. FE-2008-212. The jury sentenced him to 51 years in prison, and the court imposed the sentence on November 7, 2008. On July 8, 2008, petitioner filed a motion for a mistrial or a hearing on the effect of a third-party communication with the jurors. The trial court denied his motion, and petitioner pursued a direct appeal to the Court of Appeals of Virginia challenging the denial. On March 22, 2011, the Court of Appeals found that the trial court did not err in denying the motion, and affirmed petitioner's conviction in an unpublished decision. King v. Commonwealth, R. No. 2507-09-4 (Va. Ct. App. 2011). On October 27, 2011, the Supreme Court of Virginia denied petitioner's petition for appeal. King v. Commonwealth, R. No. 110712 (Va. 2011).
Petitioner then filed a petition for writ of habeas corpus in the Supreme Court of Virginia, asserting that his trial counsel was ineffective for failing to file a motion to dismiss petitioner's case due to Speedy Trial violations; failing to timely request a hearing on the effect of third-party contact with jurors; failing to argue that petitioner did not actually point his gun at a police officer's head, but had appeared to do so because another officer Tasered him; and failing to subpoena video footage from police cruisers on the scene of the incident. The court dismissed the petition on May 13, 2013, and denied a petition for rehearing on September 19, 2013. King v. Dir. of the Dep't of Corr., R. No. 121802.
On or about December 9, 2013, petitioner timely filed the instant federal habeas petition,  claiming that his Sixth Amendment right to effective assistance of counsel was violated when counsel failed to (1) file a motion to dismiss for violations of petitioner's Speedy Trial rights; (2) timely object to a third-party contact with the jury and move for a hearing on the contact; (3) argue that petitioner only appeared to aim a gun at a police officer's head after being Tasered by another officer; and (4) subpoena video footage from police cruisers at the scene of the crime.
On April 10, 2014, respondent filed a Motion to Dismiss petitioner's claims. Petitioner filed a response on April 25, 2014. Based on the pleadings and record before this Court, it is uncontested that petitioner timely filed his petition and exhausted all of his claims as required under 28 U.S.C. § 2254. Accordingly, this matter is now ripe for review on the merits.
II. Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas corpus petition, a federal court may not grant the petition on that particular claim unless the state court's adjudications were contrary to, or an unreasonable application of, clearly established federal law, or were based on an unreasonable determination of the facts presented at the trial. 28 U.S.C. § 2254(d)(1)-(2). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard. See Terry Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination violates the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413.
Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . Importantly, this standard of reasonableness is an objective one, and does not permit a federal court to review simply for plain error. Id. at 409-10; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In addition, a federal court should review the state court determinations with deference; the court cannot grant the writ simply because it concludes that the state court incorrectly determined the legal standard. See Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (internal citations omitted). A federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts the presumption of correctness by clear and convincing evidence.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. 2254(e)(1)); see, e.g., Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir. 2006).
A. Ineffective Assistance of Counsel Standard
To prevail on an ineffective assistance of counsel claim, petitioner must meet the two-pronged test established in Strickland v. Washington, 455 U.S. 668 (1984). Under this test, petitioner must prove both that his attorney's performance was so deficient "that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment, " and that this performance prejudiced the outcome of petitioner's trial. Strickland, 466 U.S. at 687. To meet the second prong, petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A court reviewing a claim of ineffective assistance of counsel must presume that counsel acted competently, and should determine the merits of the claim based on the information available to the attorney at the time of the trial. See, e.g., Bell v. Cone, 535 U.S. 685, 695 (2002); Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). In addition, as ...