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Pulley v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

February 1, 2016

Jason Alexander Pulley, Petitioner,
v.
Harold W. Clarke, Respondent

MEMORANDUM OPINION

Anthony J. Trenga United States District Judge

Jason Alexander Pulley, 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 constitutionality of his conviction of robbery entered on a jury verdict in the Circuit Court of Dinwiddie County. Respondent has filed a Motion to Dismiss the petition, along with a supporting brief and exhibits. Petitioner was provided with notice as required by Local Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he has filed a reply. For the reasons which follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

I. Background

On March 9, 2012, a jury in Dinwiddie County found petitioner guilty of one count of robbery. Case No. CR10-0611; Resp. Ex. 1. By Order entered May 8, 2012, he was sentenced to serve twenty-five (25) years in prison. Resp. Ex. 2.

Petitioner took a direct appeal of his conviction, arguing that eyewitness testimony presented at trial was insufficient to sustain the conviction. On January 16, 2013, the Court of Appeals of Virginia refused the appeal. R. No. 0765-12-2. Petitioner acknowledges that he did not seek further review of that decision by the Supreme Court of Virginia. Pet. at 2.

On September 17, 2012, petitioner filed a petition for a state writ of habeas corpus in the trial court, asserting that he received ineffective assistance of counsel for the following reasons:

A. Counsel labored under a conflict of interest.
B. Counsel failed to move to suppress the identification testimony of a trial witness.
C. Counsel failed to negotiate a plea agreement.
D. Counsel failed to investigate petitioner's defense.
E. Counsel failed to introduce petitioner's mugshot into evidence.

Resp. Ex. 3. The court entered a Final Order denying and dismissing the petition on the merits on March 7, 2013. Resp. Ex. 4. Again, petitioner did not seek further review of that decision by the Supreme Court of Virginia.

On November 6, 2013, petitioner turned to the federal forum and filed a first application for relief pursuant to §2254, reiterating the claims he had raised on direct appeal and in the state habeas corpus proceeding. By an Order dated December 13, 2013, the petition was dismissed, without prejudice, for petitioner's failure to exhaust the claims before the Supreme Court of Virginia. Case No. 1:13cv1465 (AJT/TRJ); Resp. Ex. 6.

Petitioner then returned to the state forum and filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, realleging the same claims he raised in his first federal habeas application. Resp. Ex. 7. In an Order dated June 25, 2014, the Court dismissed the petition for the dual reasons that it was filed untimely pursuant to Va. Code §8.01-654(A)(2), and that the claims raised were barred from consideration by Va. Code §8.01-654(B)(2), which precludes ...


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