United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Jerry Adams, a Virginia inmate proceeding pro se, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Respondent filed a motion to dismiss, and
Petitioner responded, making the matter ripe for disposition.
After reviewing the record, the court grants Respondent's
motion to dismiss.
pleaded no contest to possessing cocaine, and the Circuit
Court of Pulaski County sentenced him to an active term of
sixty-one months' incarceration. During the same
sentencing hearing, the state court also entered a revocation
order that revoked nineteen years of Petitioner's
previously suspended sentences and re-suspended fourteen
years, thereby imposing an active term of sixty-months'
incarceration. This revocation sentencing order was a
consequence of Petitioner being convicted of possessing
cocaine and failing a drug test while on probation.
direct appeal, counsel filed an Anders brief in the
Court of Appeals of Virginia with a motion to withdraw. The
Court of Appeals of Virginia afforded Petitioner the
opportunity to file a pro se supplemental petition for
appeal, which he did. On February 26, 2014, the Court of
Appeals of Virginia granted counsel's motion for leave to
withdraw and denied both counsel's and Petitioner's
petitions for appeal as frivolous. Adams v.
Commonwealth, No. 1430-13-3, slip op. at 1 (Va. Ct. App.
Feb. 26, 2014). Petitioner failed to perfect an appeal to the
Supreme Court of Virginia, and the Supreme Court of Virginia
dismissed Petitioner's state habeas petition. Adams
v. Beale. No. 150036, slip op. at 2 (Va. July 22, 2015).
raises the following claims in the federal petition:
(a) Counsel was ineffective for not informing Petitioner of
the Commonwealth's plea offer;
(b) The Court of Appeals of Virginia wrongly allowed counsel
(c) Counsel was ineffective for not consulting with
Petitioner before filing a petition for appeal; and
(d) Counsel wrongly failed to notify the sentencing court
that the revocation report incorrectly noted that Petitioner
had not paid a fine.
reviewing the state court record, the court finds that
Petitioner is not entitled to habeas relief and dismisses the
(b) and (d) are procedurally defaulted and meritless. The
Supreme Court of Virginia declined to review claim (b) on
habeas review because it was a claim that could have been
raised on direct appeal but was not. Id. (citing
Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d
243, 246 (1969)); see, e.g.. Fisher v.
Angelone. 163 F.3d 835, 844 (4th Cir. 1998); Slavton
v. Parrigan. 215 Va. 27, 205 S.E.2d 680 (1974).
Petitioner did not previously present claim (d) to the
Supreme Court of Virginia, and he would now be barred from
returning to state court to present it for the first time.
See, e.g., 28 U.S.C. § 2254(b); Baker v.
Corcoran, 220 F.3d 276, 288 (4th Cir. 2000);
Matthews v. Evatt. 105 F.3d 907, 911 (4th Cir.
1997); Va. Code § 8.01-654(A)(2), (B)(2). Consequently,
claims (b) and (d) are procedurally defaulted.
fails to describe cause and prejudice or a fundamental
miscarriage of justice to excuse the default, and neither
claim is meritorious. See, e.g., Coleman v.
Thompson. 501 U.S. 722, 750 (1991). Claim (b) does not
present a meritorious claim in light of the frivolous nature
of the appeal and Anders v. California. 386 U.S.
738, 744-45 (1967). For claim (d), the Court of Appeals of
Virginia determined that the trial court did not abuse its
discretion in revoking the suspended sentences because he was
convicted of a crime ...