United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
ROBERT S. BALLOU, Magistrate Judge.
Brian Heath Doss, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and respondent filed a motion to dismiss the petition. On January 14, 2015, the Honorable Glen E. Conrad, Chief United States District Judge of this court, referred this matter to me for a report setting forth appropriate findings of fact, conclusions of law, and a recommended disposition of all of Doss' claims, pursuant to 28 U.S.C. § 636(b)(1)(B). After carefully reviewing the petition, motion to dismiss, and state court record, I recommend that the court grant the motion to dismiss and dismiss the petition.
Doss challenges the validity of his confinement pursuant to the judgment of the Circuit Court of Pittsylvania County ("Circuit Court") after a jury convicted him of distribution of cocaine and a second or subsequent charge of distribution of cocaine, both in violation of Virginia Code § 18.2-248. Before sentencing, Doss' counsel filed, and the Circuit Court denied, a motion to set aside the verdict and award a new trial based on an allegation that the Commonwealth withheld material and exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). After the Circuit Court imposed the jury's sentence of 50 years' incarceration, Doss appealed to the Court of Appeals of Virginia, arguing, inter alia, that the Commonwealth failed to disclose the Brady materials. The Court of Appeals of Virginia affirmed the convictions, and the Supreme Court of Virginia refused a petition for appeal and denied a petition for rehearing.
Doss then filed a pro se petition for a writ of habeas corpus with the Circuit Court. On January 17, 2013, the respondent mailed to Doss a copy of a motion to dismiss, a copy of a proposed dismissal order, and a letter explaining to Doss that the respondent would mail the proposed dismissal order to the Circuit Court on or about January 30, 2013. On January 22, 2013, the respondent filed the motion to dismiss with the Circuit Court, and Doss filed his response to that motion on January 29, 2013. The respondent mailed the proposed dismissal order to the Circuit Court on January 31, 2013. The Circuit Court entered the proposed order on February 12, 2013, and dismissed Doss' petition with prejudice.
Doss alleges that he never received a copy of the Circuit Court's dismissal order and only learned of the dismissal in April 2013. Consequently, Doss filed a notice of appeal in the Pittsylvania Circuit Court on April 18, 2013, and Doss filed a petition for appeal in the Supreme Court of Virginia on June 10, 2013. On July 25, 2013, the Supreme Court of Virginia dismissed Doss' petition for appeal due to his failure to file timely both the notice of appeal and the petition for appeal, pursuant to Supreme Court of Virginia Rules 5:9(a) and 5:17(a)(1). The Supreme Court of Virginia subsequently refused Doss' petition for rehearing, in which he argued that he could not have timely filed the appeal documents because he never received the dismissal order.
On August 13, 2013, Doss filed a second state habeas petition in the Supreme Court of Virginia, asserting for the first time that that counsel rendered ineffective assistance because counsel received the alleged Brady materials before trial and did not use them. On March 2013, the Supreme Court of Virginia dismissed the claim as meritless and contrary to the record.
Doss presents the following claims in the instant federal petition:
1. The Supreme Court of Virginia was unreasonable to dismiss the petition for appeal due to the untimely filed notice of appeal and petition for appeal because Doss never received the Circuit Court's dismissal order;
2. The Circuit Court was unreasonable for finding that counsel did not render ineffective assistance by not consulting with Doss before trial about the "important issues and decisions" for a defense;
3. The Circuit Court was unreasonable for finding that counsel did not render ineffective assistance by not asking for a curative instruction about the prosecutor's "prejudicial" statements during closing argument and sentencing; and
4. (a) The Court of Appeals of Virginia and the Supreme Court of Virginia were unreasonable for holding that the prosecutor had not violated Brady during trial; and (b) the Circuit Court was unreasonable for finding the Brady claim not cognizable in habeas proceedings pursuant to Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974), and Henry v. Warden, 265 Va. 246, 249, 576 S.E.2d 468, 469 (2003).
Respondent filed a motion to dismiss, and Doss responded, making the matter ripe for disposition. After reviewing the record, I find that none of the claims qualify Doss for federal habeas relief. Accordingly, I recommend that respondent's motion to dismiss be granted.
Doss alleges in claim 1 that the Supreme Court of Virginia was unreasonable to dismiss his petition for appeal for failing to timely file both a notice of appeal and petition for appeal because Doss allegedly never received the Circuit Court's dismissal order. A federal court may grant habeas relief from a state court judgment "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal habeas claim relating to state post-conviction proceedings represents an attack only on the collateral proceedings and not the criminal proceeding, even if there is some error in state post-conviction proceedings. See, e.g., Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (holding that errors and irregularities in connection with state post-conviction proceedings are not cognizable on federal habeas review). Accordingly, I recommend that claim 1 be dismissed for challenging a state post-conviction proceeding.