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. Maurice Wilcox, 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 City of Virginia Beach, Virginia of three counts of robbery. The petition was initially filed on December 16, 2013. On April 21, 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 May 20, 2014. For the reasons that follow, petitioner's claims must be dismissed.
On June 9, 2010, a jury convicted petitioner of three counts of robbery in the Circuit Court for the City of Virginia Beach, arising out of a September 2008 robbery of a Wachovia Bank. Commonwealth v. Wilcox, Case No. CR08-4976, CR09-1851. The court sentenced him to 21 years' incarceration. Petitioner pursued a direct appeal to the Court of Appeals of Virginia, alleging that the trial court erred in denying his motion to suppress the search of his car, and that the evidence was insufficient to sustain his conviction. On February 16, 2011, the Court of Appeals denied the petition for appeal and affirmed his convictions. Wilcox v. Commonwealth, R. No. 1278-10-1 (Va. Ct. App. 2011) (per curiam). On August 25, 2011, the Supreme Court of Virginia refused petitioner's petition for appeal. Wilcox v. Commonwealth, R. No. 110512 (Va. 2011).
Petitioner then filed a petition for writ of habeas corpus in the Supreme Court of Virginia, alleging that (1) counsel was ineffective for failing to object to and move for a mistrial based on the judge's questioning of the jury regarding the presentation of inadmissible evidence, the jury's questioning of the judge regarding the inadmissible evidence, the fact that the jurors were given extraneous inadmissible evidence, and the fact that both the Commonwealth's Attorney and the judge entered the jury room during deliberations; (2) counsel was ineffective for failing to object to the Commonwealth Attorney's unapproved contact with the jury, and that counsel failed to properly investigate the effect of extraneous influences on the jury; (3) counsel was ineffective for failing to object to prosecutorial misconduct at trial; (4) appellate counsel was ineffective for failing to investigate petitioner's claims of ex parte communication between the trial judge and a juror, for failing to investigate the existence of extraneous evidence, and for failure to raise all petitioner's preferred arguments; and (5) trial counsel was ineffective for failing to investigate the serial number of the money found during a post-arrest search of petitioner's car. The court dismissed the petition on June 7, 2013, and denied petitioner's petition for rehearing on September 20, 2013. Wilcox v. Warden of the Nottoway Corr. Ctr., R. No. 121309.
On December 16, 2013, petitioner filed the instant federal habeas petition,  asserting that (1) counsel was ineffective for failing to object to or move for a mistrial when the jury was given inadmissible extraneous evidence; (2) counsel was ineffective for failing to object to improper contact between the Commonwealth's Attorney and the jury; (3) counsel was ineffective for failing to object to the Commonwealth Attorney's improper trial tactics and improper comments on the petitioner's decision to remain silent after arrest; (4) appellate counsel was ineffective for failing to raise all issues of trial court error on appeal; (5) trial counsel was ineffective for failing to investigate the serial number of the money found in petitioner's car; and (6) the trial court erroneously denied petitioner's motion to suppress evidence received from his car and petitioner's motion to strike the Commonwealth's evidence.
On April 21, 2014, respondent filed a Motion to Dismiss petitioner's claims. Petitioner filed a response on May 20, 2014. Based on the pleadings and record before this Court, it is uncontested that petitioner exhausted all of his claims as required under 28 U.S.C. § 2254. However, this Court is barred from considering a portion of petitioner's second and third claim, a portion of petitioner's fourth claim, and a portion of petitioner's sixth claim.
II. Procedural Issues
A. Claims Two and Three
In a portion of Claim Two, petitioner states that "the trial court erred by failing to adequately investigate whether the jurors were exposed to extraneous influences.'" Pet., at 7. Reviewing this claim during petitioner's state habeas proceedings, the Supreme Court of Virginia held that this claim was procedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108 (1975) (holding that a claim is procedurally defaulted if the petitioner could have raised it on direct appeal but did not). See Wilcox v. Warden of the Nottoway Corr. Ctr., slip op., at 3. A state court's finding of procedural default is entitled to a presumption of correctness, Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)), provided two foundational requirements are met, Harris v. Reed, 489 U.S. 255, 262-63 (1989). First, the state court must explicitly rely on the procedural ground to deny petitioner relief. Id . Second, the state procedural rule furnished to default petitioner's claim must be an independent and adequate state ground for denying relief. Id. at 260; Ford v. Georgia, 498 U.S. 411, 423-24 (1991). As the Fourth Circuit has held consistently that "the procedural default rule set forth in Slayton constitutes an adequate and independent state law ground for decision, " Mu'min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997), and as petitioner has not established cause and prejudice for the default, the Supreme Court of Virginia's finding of procedural default is presumed to be correct. Accordingly, this Court cannot consider this portion of Claim Two.
Similarly, in a portion of Claim Three, petitioner states that "his entire trial was infected' by prosecutorial misconduct, including expressions of prosecutor's opinions on petitioner's guilt and credibility." Pet., at 9. The Supreme Court of Virginia found that this claim was also procedurally defaulted pursuant to Slayton. See Wilcox v. Warden of the Nottoway Corr. Ctr., slip op., at 6. As petitioner has not alleged cause and prejudice for this default, this Court is barred from considering this portion of Claim Three.
In another portion of Claim Three, petitioner states that counsel was ineffective for "failing to seek out a more credible witness" during the presentation of his alibi defense. See Pet., at 9#2. This argument was not presented in petitioner's state habeas petition or his direct appeal, and so has not been properly exhausted. However, were petitioner to attempt to exhaust this claim in state court, he would be procedurally barred from bringing it. Accordingly, this claim is both unexhausted and procedurally barred, and this Court cannot consider its merits. See Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990) (holding that claims that are both unexhausted and procedurally defaulted cannot be considered on their merits in a federal habeas petition).
B. Claim Four
Petitioner's fourth claim raises ineffective assistance of appellate counsel. Specifically, he states that appellate counsel was ineffective for failing to argue that the trial court improperly communicated with the jury, that the prosecutor improperly communicated with the jury, and that the trial court failed to object to both of these situations. See Pet., at 11-11 #3. In his state habeas petition, however, petitioner argued that appellate counsel was ineffective for (1) failing to argue that the trial court improperly communicated with the jury; (2) failing to argue that the prosecutor improperly communicated with the jury; and (3) failing to argue that the trial court improperly ordered a joint trial. See Wilcox v. Warden of Nottoway Corr. Ctr., slip op., at 7. Accordingly, petitioner's claim that appellate counsel was ineffective for failing to argue that trial counsel should have objected to the alleged trial court and prosecutorial errors is unexhausted. Were ...