United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Marcus Antonio Miller, through counsel, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement under the November 2009 judgment by which he stands convicted of aggravated malicious wounding and other offenses related to a drive-by shooting. After review of the record, the court concludes that respondent's motion to dismiss must be granted.
The shooting at issue in Miller's case took place at approximately 8:30 p.m. on the evening of March 22, 2009, in Lynchburg, Virginia. The perpetrators fired multiple firearms from two vehicles as they drove down Madison Street. Two individuals on the porch of 710 Madison Street, Ronald Slaughter and Keionca Miles, were wounded in the shooting. About an hour earlier that day, Miller had been involved in a verbal altercation between Andretti Thomas and several individuals at 700 Madison Street. One eyewitness to the shooting, Darryl Slaughter, identified Miller as the shooter in the front passenger seat of the lead vehicle.
Miller stood trial on August 31 and September 1, 2009, before a jury in the Circuit Court of the City of Lynchburg on the following charges: aggravated malicious wounding of Ronald Slaughter; malicious wounding of Keionca Miles; two counts of use of a firearm during the commission of a felony; two counts of malicious discharge of a firearm at an occupied building; and one count of shooting from a vehicle. The jury found Miller not guilty of one count of malicious discharge of a firearm, but found him guilty on the remaining charges. (Case Nos. CR09020636-00, -01, -02, 03, 04, -6). On November 13, 2009, the judge sentenced Miller to an aggregate sentence of 37 years in prison, as recommended by the jury.
Miller noted a timely appeal, raising a number of issues, including a challenge to the legal sufficiency of the evidence in support of the jury's verdicts. (Record No. 2526-09-3.) The Court of Appeals of Virginia denied relief, and a three-judge panel confirmed that ruling on August 24, 2010. The Supreme Court of Virginia refused Miller's subsequent petition for appeal in January 2011. (Record No. 101825.)
Miller next filed a timely petition for a writ of habeas corpus in the Circuit Court of the City of Lynchburg in January 2012. (CL 12006671.) More than two years later, by order dated July 1, 2014, the Circuit Court granted respondent's motion to dismiss. The Supreme Court of Virginia refused Miller's habeas appeal by summary order dated April 13, 2015. (Record No. 141575.)
The § 2254 petition Miller filed in this court on April 15, 2015 raises four claims for relief:
A. The evidence that Miller committed the charged offense conduct was legally insufficient;
B. The evidence failed to prove the level of intent necessary to convict Miller of aggravated malicious wounding and malicious wounding;
C. Trial counsel provided ineffective assistance by failing to request a jury instruction allowing the jury to convict Miller of the lesser included offense of assault and battery; and
D. Trial counsel provided ineffective assistance by failing to investigate alternative suspects.
Respondent has filed a motion to dismiss and has arranged for all pertinent state court records to be forwarded to this court for review.
A. Exhaustion and Procedural Default
"[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted his state remedies by presenting his claims to the highest state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)). If a state court expressly bases its dismissal of a habeas claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the federal version of that habeas claim is also procedurally barred from review. Breard v. Pruett134 F.3d 615, 619 (4th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas court may review the ...