United States District Court, E.D. Virginia, Alexandria Division
James C. Cacheris United States District Judge
Mahdi Jibri Holmes, 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 convictions in the New Kent County Circuit Court, Virginia. On August 21, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. Dkt. Nos. 19, 20, 21. 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. For the reasons that follow, petitioner's claims must be dismissed.
In a jury trial on February 23, 2012, petitioner was found guilty of attempted carjacking, in violation of Virginia Code §§ 18.2-26 and 18.2-58.1, malicious wounding, in violation of Code § 18.2-51, and two corresponding counts of use of a firearm in commission of attempted carjacking and malicious wounding, in violation of Code § 18.2-53.1. Case Nos. CR11-132(00), CR11-132(01), CR11-132(02), and CR11-132(03). In a subsequent jury trial on May 24, 2012, petitioner was found guilty of felon firearm possession in violation of Code § 18.2-308.2. Case No. CR11-123(04). He was sentenced on August 27, 2012 to a total prison term of nineteen (19) years. Petitioner pursued a direct appeal to the Virginia Court of Appeals contending that the trial court erred in denying his motion to suppress his identification by the victim witness, Edward Davis. He also argued the evidence was insufficient to support his convictions because the Commonwealth's evidence was incredible. His petition for appeal was denied on March 26, 2013. Rec. No. 1718-12-2. On September 27, 2013, the Supreme Court of Virginia refused petitioner's second-tier appeal. Rec. No. 131014.
The Virginia Court of Appeals' order dated March 26, 2013 and record reflect the following facts:
On June 10, 2011, Edward Davis and his wife, Marjorie Feroe left Williamsburg to drive back to their home in Pennsylvania. They departed during the early morning hours to avoid traffic in the Washington, D.C. area. The couple stopped at a rest area near New Kent and used the restroom. As they walked back to their car, a black woman with tattoos approached them and asked if they could "jump" her car. Davis agreed and instructed Feroe to stand to the side as he moved his car closer to the woman's white sedan. When Davis stopped his car, he noticed a black male standing near the white sedan.
Davis waited outside his car as the woman looked for battery cables in her trunk. The black male assisted her briefly before approaching Davis' car and climbing into the front passenger seat. Concerned, Davis immediately re-entered his car and turned off the engine. The black male pointed a gun at Davis and stated, "I'll shoot you, I'll shoot you, " and instructed Davis to get out of the car.
Instead, Davis lunged at the man and struggled with him. The man struck Davis several times on the head and face with the gun. When the pair landed on the ground next to the car, the man dropped the gun. Davis threw the gun into the car, and the man fled the scene. Bleeding profusely, Davis collected his wife and drove to a nearby gas station where he called the police That same day, police obtained surveillance footage from the 7-Eleven on the receipt and showed it to Davis. Special Agent Lyons instructed Davis to "look at this and see if he recognized anybody-----" Upon watching it, Davis identified a female customer as the woman who approached him at the rest area. When Davis saw the appellant with the woman, he told police that the appellant "looked like" his assailant.
On June 16, 2011, less than a week after Davis' assault, Janay Battle saw her image on the news in connection with the incident. Upon deciding to turn herself in, she tried to reach appellant by telephone, but was unsuccessful. Battle called appellant's brother and asked him to inform appellant of her plans. Later that evening, appellant called Battle and told her, "I'm sorry that I put you through this, but if you talk, you know what will happen, " and hung up.
Battle turned herself in and was charged with several offenses. She told police her passenger's name was "Mahdi, " but could not recall his full name. Battle reviewed several photographs with police unsuccessfully before remembering that she had "Mahdi's" phone number in her cell phone. Police confirmed the phone number belonged to appellant and presented Battle with his photograph. Battle immediately identified appellant from the photo, stating, "You finally got the right person."
Rec. No. 1718-12-2, March 26, 2013 Order at 1-3.
On March 7, 2014, petitioner timely filed a petition for a writ of habeas corpus in the New Kent County Circuit Court ("state habeas court") attacking the validity of his convictions and alleging ineffective assistance of counsel claims. Case No. CL14-28. The state habeas court denied petitioner's petition on June 2, 2014. The Supreme Court of Virginia refused petitioner's habeas appeal on March 24, 2015. Rec. No. 141241.
On May 21, 2015, petitioner filed a petition for a writ of habeas corpus in this Court, pursuant to 28 U.S.C. § 2254, alleging that:
1. The identifications used to support the convictions were unduly suggestive and the convictions rendered were unconstitutional in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments.
2. Trial counsel was ineffective for:
a. Failing to properly preserve the issue of Ms. Battle's identification of the petitioner by moving to strike her identification.
b. Failing to present evidence that the victim's identification of the petitioner was only the result of viewing a videotape.
c. Failing to renew the motion to strike on the charges of attempted carjacking, use of a firearm, possession of a ...