United States District Court, E.D. Virginia
ANTHONY J. TRENGA UNITED STATES DISTRICT JUDGE
Bilal Akbar, 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
convictions entered in the Loudoun County Circuit Court,
Virginia. On April 14, 2016, respondent filed a Rule 5 Answer
accompanied by a Motion to Dismiss and supporting brief. Dkt.
Nos. 14, 15, 16. Petitioner was given the opportunity to file
responsive materials, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), and the matter
is now ripe for disposition. For the reasons that follow,
respondent's Motion to Dismiss must be granted.
is detained pursuant to a final judgment of the Loudoun
County Circuit Court entered on April 24, 2012. A jury
convicted petitioner of robbery, in violation of Va. Code
§ 18.2-58, and use of a firearm in commission of a
robbery, in violation of Va. Code § 18.2-53.1. Case Nos.
22458-00, -01; Dkt. No. 16, Ex. 2. Petitioner was sentenced
to eight (8) years incarceration. Id.
appealed his convictions, contending that the trial court
erred in denying his motion to set aside the verdict based
upon the prosecutor's allegedly improper closing
argument. Petitioner also argued that the trial court erred
in refusing to consider mitigating evidence at sentencing,
and that the trial court should have modified the jury's
recommended sentence. The Court of Appeals of Virginia denied
petitioner's appeal on November 29, 2012. Rec. No.
0795-12-4. A three-judge panel then upheld that denial on
January 31, 2013. Id. Petitioner filed a second-tier
appeal in the Supreme Court of Virginia, which refused his
appeal on July 24, 2013. Rec. No. 130366. Petitioner's
petition for rehearing was subsequently denied by the Supreme
Court of Virginia on September 23, 2013. Id.
pursuing his direct appeal, on July 8, 2014 petitioner filed
a petition for a writ of habeas corpus in the Supreme Court
of Virginia, raising the following grounds:
A. Petitioner was denied the effective assistance of counsel
when counsel failed to ensure that petitioner was evaluated
for youthful offender status at sentencing.
B. The circuit court never assumed jurisdiction over Mohammed
Bilal Akbar, the petitioner, in his natural capacity. Since
the Circuit Court never assumed jurisdiction over him, he
could not be considered a natural person, and the only
sentence he should have received under Va. Code §
18.2-10(g) was a fine.
Rec. No. 141057. On December 17, 2014, the Supreme Court of
Virginia granted the respondent's Motion to Dismiss. Dkt.
No. 16, Ex. C. The Supreme Court of Virginia then refused
petitioner's petition for a rehearing on March 5, 2015.
Dkt. No. 16, Ex. D.
March 9, 2015, petitioner filed a Motion to Vacate Void
Judgment in the Loudoun County Circuit Court, arguing that
the robbery indictment was insufficient as a matter of law
under the Sixth Amendment Notice Clause and the Fourteenth
Amendment Due Process Clause. Dkt. No. 16, Ex. E. Petitioner
contended that Count 2 of the indictment, which alleged
robbery, failed to inform him of any specific act or intent
of the crime. Petitioner reasoned that because the robbery
conviction was void due to the lack of notice in the
indictment, the use of a firearm in aid of a robbery
conviction (Count 1) ought to be vacated as well.
Id. The Loudoun County Circuit Court denied
petitioner's Motion to Vacate on April 15, 2015. Dkt. No.
16, Ex. F. The Supreme Court of Virginia refused
petitioner's appeal of the denial on February 5, 2016.
Dkt. No. 16, Ex. G.
about March 16, 2015, petitioner filed the instant federal
petition, wherein he challenges his convictions on the
(1) Petitioner was denied due process when the robbery
indictment did not clearly notify him of the crime with which
he was accused. Because robbery is a common law crime in
Virginia, neither the indictment nor the referenced statute
set out the elements of the offense. Accordingly, the
indictment was insufficient as a matter of law.
(2) Petitioner was denied due process because he was charged
as a corporation, rather than as a natural person. Because
Va. Code § 18.2-10(g) provides that defendants who are
not natural persons are punishable by fine, rather than by
imprisonment, the indictment was defective, and the trial
court's sentencing order exceeded its jurisdiction under
Va. Code § 18.2-10(g).
(3) Virginia does not have jurisdiction in personam
(4) Counsel was ineffective for failing to raise grounds 1-3.
See generally Dkt. No. 1.
is a matter of comity to the state courts, and failure to
exhaust requires dismissal from federal court so that the
petitioner may present his claims to the state courts first.
See 28 U.S.C. 2254(b); Granberry v. Greer.
481 U.S. 129 (1987); Rose v. Lundv. 455 U.S. 509
(1982); Preiser v. Rodriguez, 411 U.S. 475 (1973).
To comply with the exhaustion requirement, a state prisoner
"must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process." O'Sullivan v. Boerckel. 526 U.S.
838, 845 (1999). Thus, the petitioner must present the same
factual and legal claims raised in the instant case to the
Supreme Court of Virginia on direct appeal or in a state
habeas corpus petition. See Duncan v. Henry. 513
U.S. 364 (1995); Mallory v. Smith. 27 F.3d 991, 994
(4th Cir. 1994) ("mere similarity of claims is
insufficient to exhaust" state remedies). In reviewing
federal challenges to state proceedings, "[s]tate
courts, like federal courts, are obliged to enforce federal
law. Comity thus dictates that when a prisoner alleges that
his continued confinement for a state court conviction
violates federal law, the state courts should have the first
opportunity to review this claim and provide any necessary
relief." O'Sullivan, 526 U.S. at 844. Where
questions concerning exhaustion arise, the petitioner bears
the burden of demonstrating that he properly presented his
claim, including the operative facts and controlling legal
principles, to the state courts in accordance with the
state's "chosen procedural scheme."
Mallory, 27 F.3d at 995, see also Kasi v.
Aneelone. 300 F.3d 487, 501-01 (4th Cir. 2002).
simply, in order to properly exhaust a claim prior to filing
a § 2254, petitioner must have presented the same legal
argument and factual support to the Supreme Court of Virginia
on direct appeal, in an original jurisdiction state habeas
corpus petition, or in a habeas appeal ...