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Neil v. Zook

United States District Court, W.D. Virginia, Roanoke Division

July 30, 2015

D.W. ZOOK, Respondent.


MICHAEL F. URBANSKI, District Judge.

Petitioner Timothy Ray Neil, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Respondent filed a motion to dismiss (Doc. No. 5), and Petitioner answered (Doc. No. 12), making the matter ripe for disposition. After reviewing the record, the court grants the motion to dismiss.


After a bench trial, the Circuit Court for Roanoke County sentenced Petitioner to an eight-year sentence, with five years suspended, for two grand larceny (car theft) convictions. Petitioner's appeal to the Court of Appeals of Virginia was unsuccessful, and he did not appeal to the Supreme Court of Virginia.

Petitioner filed a petition for a writ of habeas corpus in the Circuit Court for Roanoke County that presented claims of ineffective assistance of counsel, "fraudulent legal documents, " court error, a deprivation of right to counsel, and that his conviction forced a probation revocation in Bedford County. The Circuit Court dismissed the petition, ruling that it had no jurisdiction to consider the revocation of probation in another county, the trial errors were procedurally barred pursuant to Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (Va. 1974), and that Petitioner's ineffective assistance of counsel claim did not satisfy the two-part test laid out in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of Virginia denied a petition for appeal.

In the instant, timely-filed petition, Petitioner argues that he was denied effective assistance of counsel because his attorney abandoned him during the bench trial and that the trial court committed fraud by certifying that his attorney had been present at all moments during the bench trial. Respondent concedes that the claims are exhausted but argues that they do not entitle Petitioner to relief. The court agrees and dismisses the petition.


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). After a state court addresses the merits of a claim also raised in a federal habeas petition, a federal court may not grant the petition unless the state court's adjudication of a claim is contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011).

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. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination is "contrary to" federal law 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.

A federal court may also issue the writ under the "unreasonable application" clause if the federal court finds that the state court "identifies the correct governing legal principle from the [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. This reasonableness standard is an objective one. Id. at 410. "[W]e will not discern an unreasonable application of federal law unless the state court's decision lies well outside the boundaries of permissible differences of opinion.'" Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011) (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)). A Virginia court's findings cannot be deemed unreasonable merely because it does not cite established United States Supreme Court precedent on an issue if the result reached is not contrary to that established precedent. Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

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). Finally, "[a] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).


Petitioner argues that his trial counsel was constitutionally ineffective because he abruptly left the bench trial for a few minutes during cross-examination by co-defendant's counsel of one of the prosecution's witnesses. Petitioner claims that this incident deprived him of the assistance of counsel and prevented him from establishing his innocence.

A petitioner claiming ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland. The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " meaning that counsel's representation fell below an objective standard of reasonableness.[1] Strickland, 466 U.S. at 687-88. The second prong of Strickland requires petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's errors, the result ...

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