United States District Court, E.D. Virginia, Alexandria Division
T.S. ELLIS, III, District Judge.
Tremayne Juandal Mabry, 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 Sussex, Virginia. The petition initially was filed on April 14, 2014. Respondent has filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. Dkts. 14, 15, 16. 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 response on December 16, 2014. For the reasons that follow, the petition must be dismissed.
On February 25, 2009, a jury convicted petitioner of distribution of a schedule II substance (cocaine) in the Circuit Court for the County of Sussex. Commonwealth v. Mabry, Case No. CR0800308-00 (Va. Cir. Ct. Feb. 25, 2009). Petitioner also pleaded guilty to distribution of imitation cocaine. Commonwealth v. Mabry, CR0800307-00 (Va. Cir. Ct. May 20, 2009). He was sentenced on May 20, 2009 to sixteen years' incarceration and a $5, 000 fine. He also received a five-year suspended sentence for the charge of distribution of imitation cocaine, to run concurrently with his sixteen-year sentence. Petitioner filed a direct appeal in the Court of Appeals of Virginia, arguing that (1) the trial court erroneously denied his request to obtain a copy of the audio and video recordings used at trial; and (2) the evidence was insufficient to support petitioner's conviction. The Court of Appeals denied the petition for appeal by per curiam opinion on November 6, 2009, and a three-judge panel denied a petition for rehearing on February 9, 2010. Mabry v. Commonwealth, R. No. 1317-09-2 (Va. Ct. App. Nov. 6, 2009 and Feb. 9, 2010). On July 20, 2010, the Supreme Court of Virginia refused petitioner's petition for appeal. Mabry v. Commonwealth, R. No. 100465 (Va. July 20, 2010).
Petitioner filed a petition for writ of habeas corpus in the Supreme Court of Virginia, arguing that (1) trial counsel was ineffective for failing to present evidence of mitigating circumstances; (2) trial counsel was ineffective for failing to object to a statement of personal opinion by the prosecutor; (3) trial counsel was ineffective for failing to object when the prosecutor appealed to the sympathy and passions of the jury; (4) the prosecutor committed misconduct by misleading the jury and giving his personal opinion during closing argument; and (5) the prosecutor committed misconduct by appealing to the jury's sympathy during sentencing. On November 9, 2011, the court dismissed the petition as untimely filed. Mabry v. Dir., Dep't of Corrs., R. No. 111337 (Va. Nov. 9, 2011). Petitioner filed a motion to reopen his petition on January 22, 2013, which the court denied on February 14, 2013.
On April 14, 2014, petitioner filed the instant federal habeas petition, raising the following claims for relief:
1. Petitioner is entitled to equitable tolling of the statute of limitations.
2. Petitioner is actually innocent of the crimes for which he was sentenced.
3. Petitioner's current incarceration violates the Fourteenth Amendment.
4. Petitioner's current incarceration violates the Eighth Amendment.
5. Petitioner's current incarceration is a direct result of evidence seized in violation of the Fourth Amendment.
6. Petitioner's Due Process rights were denied when he was unable to inspect and copy the video and audio recordings produced at trial.
7. Petitioner's trial was tainted by structural error.
8. Petitioner's conviction was obtained through ...