United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
RODERICK C. YOUNG, Magistrate Judge.
Dennis Wayne Spindle, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition, " ECF No. 1). The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons that follow, it is RECOMMENDED that the § 2254 Petition be DENIED.
A. Spindle's Claims
Spindle was convicted in the Circuit Court of the City of Fredericksburg ("Circuit Court") of malicious wounding, use of a firearm in the commission of a felony, and possession of a firearm by a convicted felon. (ECF No. 14-1, at 24.) In his § 2254 Petition, Spindle demands relief upon the following grounds:
Claim One: Ineffective assistance of counsel in violation of the U.S. and Virginia Constitution Sixth and Fourteenth Amendments by virtue of counsel's failure to:
a. File a motion to sever the indictment regarding the count of possessing a gun by a convicted felon; investigate the case; follow up on previous attorney's discovery motion; provide adequate representation, by interviewing witnesses, properly calling witnesses to the stand to testify, properly examining and cross-examining witnesses, and exercising sound trial strategy;
b. Subpoena Kennard Johnson to the motion hearing to set aside judgment whose testimony could have changed the verdict;
c. Properly provide a sound legal argument at the motion to set aside judgment hearing to support the Brady claim;
d. Properly perfect his client's appeal in which counsel did not raise appellate issues regarding his overruled objections by the court prohibiting evidence of bad acts by Mr. Shelton to be heard by the jury; the Commonwealth's proffer of immunity in open court to a witness (who had asserted her 5th Amendment right to remain silent) to testify against Mr. Spindle; the evidence was insufficient to convict; and, properly follow the appellate rules to perfect the appeal and for timely procedures such as a request for a three-judge panel.
(Br. Supp. § 2254 Pet. 6, ECF No. 2).
Claim Two: Prosecutorial misconduct in violation of the U.S. and Virginia Constitution Fifth and Fourteenth Amendments for failing to disclose [Brady] impeachment evidence as well as exculpatory evidence favorable to the defendant which is applicable even though there was no specific request by the defendant. (Id. (alteration in original).)
Claim Three: Insufficient evidence to convict in violation of the U.S. and Virginia Constitution Fourteenth Amendment. (Id.)
Respondent has moved to dismiss, arguing that the second portion of Claim Two (prosecutorial misconduct occurred when the prosecution failed to disclose exculpatory evidence) and all of Claim Three are procedurally defaulted, and that Claim One and the first portion of Claim Two lack merit. Despite receiving an extension of time, Spindle has not responded. As explained below, it is RECOMMENDED that Claim Three BE DISMISSED as procedurally defaulted, and Claims One and Two BE DISMISSED as lacking in merit.
B. Applicable Constraints upon Habeas Review
In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
C. Procedurally Defaulted Claim
In Claim Three, Spindle contends that insufficient evidence existed to convict him of malicious wounding. (Br. Supp. § 2254 Pet. at 22-26.) Respondent asserts that this claim is procedurally defaulted. (Mem. Supp. Mot. Dismiss 6-7.)
State exhaustion "is rooted in considerations of federal-state comity, '" and in the Congressional determination reflected in the federal habeas statutes "that exhaustion of adequate state 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 v. 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. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving 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]f a 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 he or she "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 I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).
On direct appeal, Spindle argued that "the trial court erred in denying his motion to strike the evidence because the evidence was insufficient to sustain a conviction of aggravated malicious wounding under Code § 18.2-51.2." (ECF No. 14-1, at 30 (emphasis added).) The Court of Appeals of Virginia found that Spindle's argument was moot because the jury had acquitted him of aggravated malicious wounding and instead "found him guilty of the lesser offense of malicious wounding." Id.
In state habeas proceedings, however, Spindle raised a sufficiency of the evidence claim different than the claim raised on direct appeal. Spindle's claim in the habeas proceedings was that the evidence presented at trial was insufficient to sustain a conviction for malicious wounding because Spindle acted in self-defense and did not act with malice. (ECF No. 14-8, at 30-31.) The Supreme Court of Virginia affirmed the dismissal of Claim Three pursuant to Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because ...