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Tyree v. Director, Virginia Department of Corrections

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

March 25, 2016

Clarence Braxton Tyree, Petitioner,
v.
Director, Virginia Department of Corrections, Respondent.

MEMORANDUM OPINION

ANTHONY J. TRENGA, District Judge.

Clarence Braxton Tyree, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, challenging the validity of his conviction entered in the Circuit Court for the City of Alexandria, Virginia. On October 21, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and exhibits. Dkt. Nos. 9, 10, 11. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he filed no reply. Accordingly, the matter is now ripe for disposition. For the reasons that follow, petitioner's claims must be dismissed.

I. Background

Petitioner is in respondent's custody pursuant to a judgment of the Circuit Court for the City of Alexandria entered on June 27, 2013, wherein a jury convicted him ofmalicious wounding of a law enforcement officer. Dkt. No. 1 at 1; Case No. CR13000054. He was sentenced on June 27, 2015 to 15 years in prison.

Petitioner appealed, and the Virginia Court of Appeals denied the appeal on December 23, 2013. That order was affirmed by a three-judge panel on March 6, 2014. Rec. No. 1263-13-4. Petitioner's subsequent petition for appeal to the Supreme Court ofVirginia was refused on September 23, 2014. Rec. No. 140535.

The Virginia Court of Appeals' opinion dated December 23, 2013 and the record reflect the following facts:

... [O]n December 25, 2012, Officer Michael Rossiter was on patrol when he observed [petitioner] leaning into a parked car, rummaging around inside. Rossiter noted larceny from automobiles was a problem in that area of town. When Rossiter parked his marked police car, [petitioner] exited the car and got on a nearby bicycle.
Rossiter approached [petitioner] and asked what he was doing. [Petitioner] claimed the car belonged to his sister and provided the officer with identification. Rossiter attempted to put [petitioner] in an investigative detention and asked [petitioner] to place his hands behind his back. [Petitioner] refused and when the officer took hold of [petitioner's] left arm, [petitioner] forcefully shoved the officer with his right arm, knocking Rossiter back several steps.
Rossiter called for emergency backup assistance and again approached [petitioner] intending to place him under arrest for assault. [Petitioner], a trained boxer, then punched the officer in the face. Rossiter fought back and [petitioner] repeatedly struck the officer in the head with his fist, knocking the officer to the ground. [Petitioner] attempted to strike Rossiter with his bicycle but dropped it and ran across the street when Rossiter reached for his gun.
Rossiter followed [petitioner] across the street and again attempted to detain him. [Petitioner] struck the officer again. [Petitioner] walked away. Rossiter attempted to make a phone call with his cell phone and then saw [petitioner] turn around and walk back towards him. [Petitioner] walked straight to the officer and punched him in the head, again knocking the officer to the ground. [Petitioner] climbed on top of Rossiter and Rossiter lost consciousness. Rossiter was transported to the hospital to be treated for his extensive injuries.
[Petitioner] surrendered when backup officers arrived. Detective Sean Casey noted [petitioner] exhibited no injuries anywhere on his body. [Petitioner] later boasted about the extent of the beating he gave the officer.

Rec. No. 1263-13-4, Dec. 23, 2013 Order at 1-2.

Petitioner executed the instant federal habeas petition on July 30, 2015, and it was filed by this Court on August 12, 2015. In his petition, he raises the following allegations:

(1) The evidence was insufficient to prove beyond a reasonable doubt that petitioner intended to permanently maim, ...

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