United States District Court, E.D. Virginia, Alexandria Division
Michael Scott Hill, 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 four felony offenses in the Circuit Court of the City of Portsmouth. On August 13, 2015, respondent filed a Motion to Dismiss and a Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he filed his opposition to the Motion to Dismiss on September 9, 2015. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.
On January 13, 2011, petitioner was found guilty of aggravated malicious wounding, malicious wounding, and two counts of use of a firearm in the commission of a felony. Case Nos. CR09-1784-01 through -04. He received a sentence of fifty-eight years in prison with thirty-eight years suspended. Resp. Ex. A. In an opinion denying petitioner's subsequent petition for direct appeal, a judge of the Virginia Court of Appeals described the facts underlying the convictions as follow:
On January 28, 1997, appellant pulled into the driveway of the home where brothers Danny and Curtis Hare lived. The two brothers had previously worked on appellant's car. When appellant drove up at approximately 8:00 p.m., Danny was beside the house on his way to the backyard to work on a friend's vehicle. Appellant exited his vehicle and approached Danny. At approximately the same time as appellant drew within arm's length distance of Danny, Curtis, a/k/a 'Lamont, ' exited the [illegible].
Waving his hand, appellant looked at Curtis and said, 'All right. I want to know who the 'F' broke in my car. It had to be you, Lamont.' When Danny turned to look at appellant, he saw appellant had guns in both hands. One of the guns was a 'chrome' automatic, while the second one was a 'larger' gray gun.
Appellant immediately fired at Danny, shooting him in the neck and severing his spinal cord. Curtis cried out, 'No, ' and appellant fired twice more at Curtis, with one bullet striking Curtis in the foot. Following the shooting, appellant fled the scene. Three bullet casings were recovered from the scene. Two were located close to each other near the rear entrance to the house, and a third was found at the side of the house.
Curtis recovered fully from his foot wound, but Danny's injuries left him hospitalized for several months and suffering from permanent, partial paralysis. Both Danny and Curtis identified appellant as the shooter. Danny stated he 'looked right at' appellant immediately prior to the shooting and recognized his face. Danny also testified he recognized appellant's voice.
Hill v. Commonwealth. R. No. 0743-11-1 (Va. Ct. App. Aug. 4, 2011); Resp. Ex. B. On October 18, 2011, a three-judge panel agreed that the petition for appeal should be denied. Id. Petitioner did not immediately pursue a further appeal by the Supreme Court of Virginia. However, he subsequently was granted a belated appeal, and the petition for appeal was refused on June 19, 2013. Hill v. Commonwealth, R. No. 130365 (Va. June 19, 2013); Resp. Ex. D.
On June 19, 2014, petitioner filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the following claims:
1. Trial counsel was ineffective because he failed to perfect a direct appeal in the Virginia Supreme Court.
2. Trial counsel was ineffective because he failed to conduct pretrial investigation or to interview prosecution witnesses prior to trial.
3. Trial counsel was ineffective because he failed to conduct an investigation concerning the indictment;
4. Trial counsel was ineffective because he obtained a stipulation from the Commonwealth regarding certain evidence;
5. Trial counsel was ineffective because he failed to request discovery from the Commonwealth;
6. Trial counsel was ineffective because he failed to subpoena David Freeman and the victims' mother to testify at trial;
7. Trial counsel was ineffective because he failed to conduct adequate investigation, which would have revealed Walter Booker's criminal history;
8. Trial counsel was ineffective because he failed to follow up on notes he wrote during the cross-examination of Danny Hare;
9. Trial counsel was ineffective because he failed to request a suppression hearing;
10. The Commonwealth's Attorney committed prosecutorial misconduct by withholding ...