United States District Court, E.D. Virginia, Richmond Division
RODERICK C. YOUNG, Magistrate Judge.
Christopher Todd Landeck, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition, " ECF No. 1) challenging his conviction in the Circuit Court of the City of Richmond, Virginia ("Circuit Court"). In his § 2254 Petition, Landeck argues entitlement to relief based upon the following grounds:
Claim One: Counsel rendered ineffective assistance "pretrial with respect to motion in limine" ( Id. at 8.)
Claim Two: Counsel rendered ineffective assistance "with respect to counsel's failure to propose alternate jury instruction." ( Id. at 10.)
Claim Three: "Prosecutorial misconduct/plain error... at trial with respect to multiple instances of the prosecution's improper rebuttal argument.... ( Id. at 11-12.) Specifically, the Commonwealth:
(a) & (b) engaged in "[i]mpermissible vouching" by "improperly express[ing] his opinion of the veracity of a defense witness" ( id. at 12-13);
(c) "unlawfully manipulated the evidence... by materially misstating... prior testimony..." ( id. at 13); and
(d) "made a scandalous, improper and racially inflammatory comment to which the court sustained defense counsel's objection...." ( id. at 14).
Claim Four: Counsel rendered ineffective assistance by his "ineffective failure to challenge or object to multiple plain errors and to adequately challenge the court's insufficient remedial instruction regarding counsel's only objection to the inflammatory language." ( Id. at 12.) Specifically counsel failed to object to the Commonwealth's:
(a) & (b) "[i]mpermissible vouching" ( id. at 12-13);
(c) "unlawful manipulat[ion of] the evidence... by materially misstating... prior testimony..." ( id. at 13); and
(d) "scandalous, improper and racially inflammatory comment to which the court sustained defense counsel's objection... ( id. at 14).
Claim Five: Counsel rendered ineffective assistance on appeal. ( Id. at 17.)
Claim Six: "Absence (ineffective assistance) of counsel at initial-review collateral proceedings may have created a circumstance in which petitioner defaulted or gave the appearance of defaulting on certain claims raised in his amended petition." ( Id. at 18.)
Respondent moves to dismiss the § 2254 Petition on the grounds that Landeck has defaulted several of his claims and that the remaining claims lack merit. Landeck has responded. For the reasons stated below, the Motion to Dismiss will be GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.
I. PROCEDURAL HISTORY
Following a jury trial, the Circuit Court convicted Landeck of aggravated malicious wounding and sentenced him to an active term often years of incarceration. Landeck appealed, and the Court of Appeals of Virginia affirmed his conviction. Landeck v. Commonweath, 722 S.E.2d 643, 645 (Va. Ct. App. 2012). The Supreme Court of Virginia refused Landeck's subsequent petition for appeal. Landeck v. Commonwealth, No. 120612, at 1 (Va. Sept. 13, 2012).
On September 9, 2013, Landeck filed a petition for a writ of habeas corpus in the Circuit Court raising Claims Two, Three (d), and Four (d) of the instant § 2254 Petition. (ECF No. 17-1, at 4-6.) On November 8, 2013, Landeck filed an amended petition adding Claims One, Three (a)-(c), Four(a)-(c), and Fiveof the instant § 2254 Petition. (ECF No. 17-2, at 5, 7-11.) On May 21, 2013, the Circuit Court denied his petition. (ECF No. 17-3, at 19-20.) The Circuit Court denied ClaimsTwo, Three (d), and Four (d) of the instant petition because they lacked merit (see ECF No. 17-3, at 13-19, and Claims One, Three (a)-(c). Four (a)-(c), and Five of the instant petition because they were untimely filed under section 8.01-654(A)(2) of the Virginia Code. ( See id. at 5.) On February 3, 2015, the Supreme Court of Virginia refused his petition for appeal. (ECF No. 17-4, at 1.)
II. EXHAUSTION AND PROCEDURAL DEFAULT
Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted in considerations of federal-state comity, '" and in Congressional determination via federal habeas laws "that exhaustion ofadequatestate remedies will best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan i'. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary opportunity' the prisoner must fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present "both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworlh v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden ofproving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]fa state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when the "petitioner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n. 1). The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex ...