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Adams v. Beal

United States District Court, W.D. Virginia, Roanoke Division

August 3, 2016

JERRY ADAMS, Petitioner
v.
JAMES V. BEAL, Respondent.

          MEMORANDUM OPINION

          Hon. 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.

         I.

         Petitioner 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.

         On direct appeal, counsel filed an Anders[1] 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).

         Petitioner 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 to withdraw;
(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.

         After reviewing the state court record, the court finds that Petitioner is not entitled to habeas relief and dismisses the habeas petition.

         II.

         Claims (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.

         Petitioner 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 ...


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