United States District Court, E.D. Virginia, Richmond Division
MAURICE J. BECTON, Petitioner,
WARDEN ZOOK, Respondent.
Maurice J. Becton, Petitioner, Pro Se.
Zook, Respondent, represented by Christopher Paul Schandevel,
Office of the Attorney General.
REPORT AND RECOMMENDATION
RODERICK C. YOUNG, Magistrate Judge.
James Becton, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. Â§ 2254
(hereinafter "Â§ 2254 Petition, " ECF No. 1). The
matter is before the Court for a Report and Recommendation
pursuant to 28 U.S.C. Â§ 636(b). Becton raises the following
claim for relief:
Claim One: Counsel rendered ineffective assistance by
"fail[ing] to adequately prepare defense witnesses for
testimony before tak[ing] the stand." (Â§ 2254 Pet.
moves to dismiss. Despite Respondent's provision of
Roseboro  notice, Becton has not responded. For
the reasons that follow, it is RECOMMENDED that the Motion to
Dismiss (ECF No. 8) be GRANTED and the Â§ 2254 Petition be
17, 2011, the Circuit Court for the County of Amelia,
Virginia ("Circuit Court") convicted Becton of five
counts of grand larceny and five counts of breaking and
entering while armed, for home break-ins that occurred on May
14, 2010; July 14, 2010; on or about July 16, 2010; and two
on July 29, 2010. (ECF No. 10-1, at 4-8.) The Court sentenced
Becton to a total of 220 years in prison with 208 of those
years suspended. ( Id. at 8.)
appealed. On November 11, 2011, the Court of Appeals granted
in part and denied in part Becton's petition for appeal.
Becton v. Commonwealth, No. 1123-11-2, at 1 (Va. Ct.
App. Nov. 22, 2011). The Court of Appeals of Virginia aptly
explained the evidence of Becton's guilt as follows:
Appellant argues the evidence was insufficient to sustain his
convictions. He contends that the trial court erred in
accepting the uncorroborated testimony of a convicted felon
in finding the evidence sufficient beyond a reasonable doubt.
"Where the sufficiency of the evidence is challenged
after conviction, it is our duty to consider it in the light
most favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support
it." Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). Moreover, "[i]f there
is evidence to support the conviction, an appellate court is
not permitted to substitute its own judgment for that of the
finder of fact, even if the appellate court might have
reached a different conclusion." Commonwealth v.
Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72(1998).
Snow v. Commonwealth, 33 Va.App. 766, 774, 537
S.E.2d 6, 10 (2000). So viewed, the evidence proved that D.
Brown and appellant were once in a relationship. At trial D.
Brown was shown photographs of several houses and testified
that together she and appellant broke into all of them. She
indicated that they broke into a house located on Butlers
Road where they stole jewelry and electronics. They broke
into a home on Daybreak Drive and from there they took
jewelry and "maybe a TV." She testified they also
broke into a residence on Wills Road and stole jewelry, a
camera, and "maybe a television." They broke into a
home on Bevils Bridge Road, taking jewelry, a television, and
possibly a firearm.
D. Brown explained that they pawned the jewelry for cash,
although she was not sure what happened to the firearms. She
testified that they always broke in between 8:00 a.m. and
4:00 p.m. in the afternoon. On each occasion they wore masks
and gloves; she carried a handbag and appellant carried a
gun. D. Brown is a convicted felon with over sixty charges
pending in other jurisdictions.
Appellant argues that the uncorroborated testimony of a
convicted felon is insufficient to convict him of the
We first note that D. Brown's testimony was not
uncorroborated. At least one victim of each break-in
testified that their home had been invaded, that items of
jewelry, electronics, and sometimes firearms were taken, and
that all these events occurred during daylight hours. In
addition, a jewelry shop owner testified that he recognized
D. Brown and that she sold gold jewelry to him on several
occasions. Thus, we find that D. Brown's testimony was
"The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder
who has the opportunity to see and hear that evidence as it
is presented." Sandoval v. Commonwealth, 20
Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). The trier of
fact is not required to accept a witness' testimony, but
instead is free to "rely on it in whole, in part, or
reject it completely." Rollston v.
Commonwealth, 11 Va.App. 535, 547, 399 S.E.2d 823, 830
Although she cannot remember specific items taken from
specific homes, D. Brown's testimony was not inherently
incredible. She remembered the homes shown to her in the
photographs, and explained to the trial court why she
remembered each particular house. The trial court was free to
accept D. Brown's testimony that she and appellant
committed these crimes together. We find no error with the
trial court's credibility determination or with its
determination of appellant's guilt. The
Commonwealth's evidence was competent, was not ...