United States District Court, W.D. Virginia, Roanoke Division
Tremayne Perkins, Pro Se Petitioner; Craig W. Stallard,
Office of the Attorney General, Richmond, Virginia, for the
P. Jones United States District Judge
pro se Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2254, Tremayne Perkins, a Virginia inmate, contends
that his state convictions and sentence violate the
Constitution. Upon review of the record, I conclude that the
respondent’s Motion to Dismiss must be granted, because
the claims raised in the petition are procedurally defaulted
and barred from federal habeas review.
found Perkins guilty of second-degree murder and the use of a
firearm in the commission of a murder. Perkins pleaded guilty
in a separate proceeding to possession of a firearm by a
convicted felon. In a unified sentencing proceeding, the
state trial court sentenced Perkins to a total of 38 years in
prison, in accordance with the verdict of the jury. Judgment
was entered on September 29, 2011.
appeals to the Court of Appeals of Virginia (Record No.
2023-11-3) and the Supreme Court of Virginia (Record No.
121125) were unsuccessful. Perkins did not file a petition
for a writ of certiorari in the United States Supreme Court.
On December 3, 2013, Perkins filed a petition for a writ of
habeas corpus in the City of Martinsville Circuit Court.
(Case No. CL14000026-01.) The circuit court dismissed this
petition as without merit on September 23, 2015. The state
court record does not indicate that Perkins filed a notice of
appeal of his habeas action to the Supreme Court of Virginia.
present § 2254 petition was signed and dated on October
22, 2015, alleging these grounds for relief: (1) The
petitioner’s due process rights were violated (A) when
a member of the jury did not disclose that she was related by
marriage to the victim; (B) when the court imposed the
sentence recommended by the jury that was greater than the
guidelines; and (C) "unprofessional intoxicated
bystanders tampered with the evidence at the scene and
relocated the decedent[’s] body"; (2) Counsel was
ineffective for (A) failing to impeach the
Commonwealth’s witness, Tonya Coles; (B) failing to
impeach the Commonwealths’ witness, Devane Reynolds,
and to move to strike his testimony; (C) failing to request a
self-defense instruction to the jury; and (D) failing to
provide the petitioner with his file pursuant to Rule
1:16(e); and (E) Counsel was ineffective "due to the
cumulative effect of his deficiency, " including
counsel’s failing to move to strike for cause the juror
who was related to the victim. (Pet. 20, 25, ECF No. 1.)
respondent has moved to dismiss Perkins’ § 2254
petition as procedurally defaulted. Perkins did not respond
to the Motion to Dismiss, and the time allotted for him to do
so has elapsed. Therefore, I find the matter ripe for
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 28 U.S.C. §
2254(b)(1)) see also O’Sullivan v. Boerckel,
526 U.S. 838, 848 (1999) (requiring proper exhaustion in the
highest state court). If a state court expressly bases its
dismissal of a claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for the dismissal, the federal habeas version of that claim
is also procedurally barred. Breard v. Pruett, 134
F.3d 615, 619 (4th Cir. 1998) (citing Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991)). Similarly,
"when it is clear that the state law would bar state
review, exhaustion is not required, and federal review is
precluded." Bassette v. Thompson, 915 F.2d 932,
937 (4th Cir. 1990) (applying rule from Teague v.
Lane, 489 U.S. 288, 298-99 (1989))
did not present any of his current claims to the Supreme
Court of Virginia on direct appeal. He included the current
claims in his habeas petition in the circuit court, but
offers no evidence that he properly filed and pursued an
appeal of these claims in the Supreme Court of
Virginia. See, e.g., Williams v. Landon,
336 S.E.2d 907, 908 (Va.App. Ct. 1985) (dismissing habeas
appeal because notice of appeal was not filed within
mandatory 30-day period after circuit court’s final
order). Thus, I find that Perkins failed to pursue an
available state court remedy as required for proper
exhaustion under § 2254(b).
it is clear that state law would now bar review of the merits
of Perkins’ habeas claims, further exhaustion in state
court is not required. However, I must consider
Perkins’ claims to be both exhausted and procedurally
defaulted. Bassette, 915 F.2d at 937. All of
Perkins’ habeas claims are based on facts known to him
when he pursued his state habeas petition in the circuit
court. If he now attempted to present these claims to the
Supreme Court of Virginia in a habeas petition, that court
would find them barred by the clear language of Va. Code Ann.
§ 8.01-654(B)(2) ("No writ shall be granted on the
basis of any allegation the facts of which petitioner had
knowledge at the time of filing any previous
petition."). The United States Court of Appeals for the
Fourth Circuit has held that a petitioner’s default
under this state rule barring successive petitions is
sufficient to bar federal habeas review as well.
Bassette, 915 F.2d at 937.
review the merits of Perkins’ procedurally defaulted
claims only if he "demonstrate[s] cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or demonstrate[s] that failure to consider the
claims will result in a fundamental miscarriage of
justice." Coleman, 501 U.S. at 750. To show
cause for his procedural defaults, Perkins must identify
"something external to the petitioner, something that
cannot fairly be attributed to him [that] . . . impeded [his]
efforts to comply with the State’s procedural
rule." Id. at 753 (internal quotation marks and
citations omitted). The fundamental miscarriage of justice
exception to the cause requirement is a narrow one. To open
this procedural gateway to secure the adjudication of his
otherwise procedurally defaulted claim, "the petitioner
must show that it is more likely than not that ...