United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young Magistrate Judge.
Lee Winslow, a Virginia inmate proceeding pro se and
in forma pauperis, filed this petition for a writ of
habeas corpus under 28 U.S.C. § 2254 (hereinafter,
"§ 2254 Petition;' ECF No. 1) challenging his
convictions in the Circuit Court for the City of Portsmouth
("Circuit Court"). Winslow pled guilty to grand
larceny of a firearm and possession of a firearm by a
convicted felon in the midst of his jury trial and after he
had testified in his defense. As outlined below, the majority
of Winslow's claims challenge portions of his trial prior
to the entry of his guilty plea. In his § 2254 Petition,
Winslow argues entitlement to relief upon the following
Claim One: "Appointed trial counsel, Amy Kirby, ... did
not render effective assistance of counsel at the pre-trial
plea negotiation process." (Id. at 7.)
Claim Two: "The petitioner was shackled in the
courtroom, in full view of the jury, without manifest
necessity ...." (Id. at 8.)
Claim Three: "Former trial counsel was
ineffective in the following aspects inducing the
petitioner to plead guilty under duress, making such plea
unlawfully induced" (id. at 9):
(a) "For failing to object to the petitioner appearing
handcuffed and shackled in full view of the jury and
commenting about petitioner being handcuffed and shackled to
the jury during counsel's opening argument"
(b) "Counsel was ineffective for not interviewing
witness Jerry Evans before placing him on the stand inasmuch
as this witness testified adversely to the petitioner"
(id. at 9);
(c) "Counsel was ineffective for failing to exclude yet
another witness, the petitioner's mother, whom would have
testified that the petitioner was at her house immediately
after leaving the plaintiffs house.. ."(id at
(d) "Counsel was ineffective for failing to move for a
mistrial when petitioner advised him and the court that a
juror was sleeping during the trial" (id);
(e) "Counsel was ineffective for failing to object to
the plea not being in writing" (id.);
(f) "Counsel was ineffective for failing to sever the
theft of a firearm from the possession of a firearm"
(g) "Counsel was ineffective for failing to object to
the entry of an order of conviction . . . that had been
vacated in a prior habeas hearing" (id.).
Claim Four: "The petitioner's due process
rights were violated when the court failed to
accept as true the factual allegations in [his habeas]
petition" (Id. at 11.)
moves to dismiss the § 2254 Petition. Winslow has
responded. For the reasons explained below, the Motion to
Dismiss (ECF No. 10) will be GRANTED.
PROCEDURAL AND FACTUAL HISTORY
jury charged Winslow with grand larceny of a firearm and
possession of a firearm by a convicted felon.
Commonwealth v. Winslow, No. CR12-543-01 & -02,
at 1 (Va. Cir. Ct. Apr. 5, 2012). A jury trial commenced on
August 23, 2012. The evidence presented was summarized by the
Circuit Court as follows:
The Commonwealth's evidence showed Winslow spoke to Billy
Bowen about buying a gun from Bowen and at 2:00 p.m. on
October 11, 2011, Winslow arrived at Billy Bowen's home
in Portsmouth where he resided with his girlfriend. Bowen
brought out the gun, a .30-36 Mauser for which he was asking
$150. Bowen identified the weapon from an old Polaroid
photograph. (Tr. 47). The trunk of the car in which Winslow
arrived was opened, and the gun was examined in the trunk.
Winslow said he was purchasing the gun for the older man who
had accompanied him. (Tr. 48). While the transaction was
being discussed, a bullet became lodged in the weapon and
Bowen went into his home to retrieve a rod to dislodge the
bullet. When he returned, Winslow, the gun and the vehicle
were gone. Bowen reported the theft to the police. (Tr.
Bowen's girlfriend of 25 years, Linda Todd, observed
Bowen talking to Winslow from the front door of her home, a
distance of 20 feet. (Tr. 66, 69). She observed Bowen place
the gun in the trunk opened by a man accompanying Winslow.
(Tr. 66-7). Winslow remained at the back of the car with the
trunk open and Bowen did not carry the gun with him when he
came back into the house to retrieve the rod to dislodge the
bullet. (Tr. 70). When she turned to look back ouside,
Winslow and the man had gotten in the car and were pulling
off. (Tr. 70).
The Commonwealth introduced four prior felony conviction
orders to prove the felon in possession of a firearm offense,
a hit and run from Chesapeake, a grand larceny from Virginia
Beach and a burglary and felony failure to appear from
Virginia Beach. (Tr. 78-79).
Winslow testified he was just a passenger in the car when
Jerry Evans and Winslow's sister Angie proceeded to
Bowen's home so Angie could sell Bowen pills. Winslow
said he was present to accommodate the sale from which he
would receive money; he knew nothing about a gun. (Tr. 87,
89). Winslow had prior contacts with Bowen and Bowen and his
girlfriend, Linda, knew him. (Tr. 91-92).
When Angie drove up, Bowen was at his front door with the
gun. (Tr. 94). She handed Winslow the car keys and he opened
the trunk. Bowen put the gun in the trunk and while
demonstrating how the weapon operated to Evans who was
interested in buying the gun, (Tr. 99), Winslow returned the
keys to Angie. He did not see Bowen leave and assumed he took
the gun with him. (Tr. 100). He and Evans got into the car
and left "quick[ly]." (Tr. 100). Angie dropped off
Winslow at his mother's home. (T. 101, 106).
Winslow said there was bad blood between him and Evans over a
girl and that could be a motive for Evans to lie about
Winslow's part in the transaction. Evans had also accused
Winslow of stealing a bike. (Tr. 104). Winslow said he had
had conversation with Bo wen afterward, but he refused to pay
Bo wen $150 because he did not take the gun. (Tr. 107).
However, on May 16, 2012, Winslow had his father pay Bo wen
for the gun with a $150 cashier's check. (Tr. 118).
Winslow admitted having four prior felony convictions and 11
prior misdemeanor convictions for lying, cheating or
stealing. (Tr. 119-120).
Jerry Evans testified Winslow picked him up and they went to
see Bowen about a gun Bowen was trying to sell. (Tr. 138).
Evans said he had been drinking, did not feel well and did
not recall events clearly but got back in the car when
Winslow and Bowen started negotiating price. A few minutes
later, Winslow got back in the car and they left. (Tr. 139,
143-44). He did not recall any pills being involved in the
transaction and there was no girl in the car. (Tr. 141, 144).
The defense called Mona Wekheiser who testified she was
living with Jerry Evans when he said he received $100 for a
firearm he sold and he split the money with Angie, because
she drove the car; he had dropped off Winslow beforehand and
Winslow took no part in the deal. (Tr. 151, 155). She said
there was bad blood between Evans and Winslow. (Tr. 152).
James Ennis, an investigator for the defense testified he
spoke with Jerry Evans who said he knew nothing about a
rifle, he was not there and had nothing to do with it. (Tr.
At this point in the case, defense counsel conferred with
Winslow and then Winslow asked to speak with his counsel and
the Commonwealth's Attorney for the purpose of
negotiating a plea.
Winslow v. Clark, No. CL14-1630, at 4-7 (Va. Cir.
Ct. July 10, 2014).
parties reached an oral agreement that Winslow would plead
guilty to both charges with "five years with three and a
half years suspended on the grand larceny [and] five years on
the firearm charge with three years suspended for a total of
three and a half years to serve." (Aug. 23, 2012 Tr.
162-63). The prosecutor indicated that he would need to write
up a plea agreement, and the Circuit Court stated that
"[y]ou don't need to write it up." (Aug. 23,
2012 Tr. 162.) The Circuit Court conducted an extensive plea
colloquy with Winslow to confirm that he understood the
agreement and was entering into the plea freely, knowingly,
and voluntarily. (Aug. 23, 2012 Tr. 162-76.) In accordance
with the plea agreement, Winslow was sentenced to an active
sentence of three years and six months of incarceration.
Commonwealth v. Winslow, CR12-543-01 & -02, at 1
(Va. Cir. Ct. Aug. 27, 2012).
appeal, Winslow argued "that the trial court's
acceptance of his guilty plea violated [Supreme Court of
Virginia] Rule 3A:8(c)(2)'s requirement that the plea
agreement 'be reduced to writing' and signed by the
parties, " and "rendered his convictions void
ab initio" Winslow v. Commonwealth, 749 S.E.2d
563, 565 (Va. Ct. App. Nov. 12, 2013). The Court of Appeals
of Virginia disagreed and affirmed Winslow's convictions.
Id. The Supreme Court of Virginia refused his
petition for appeal. (See § 2254 Pet. 2.)
9, 2014, Winslow filed a petition for a writ of habeas corpus
in the Circuit Court. Petition for Writ of Habeas Corpus 1,
Winslow v. Clark, No. CL14-1630 (Va. Cir. Ct. filed
May 9, 2014). In his state petition, Winslow raised,
inter alia, all of the claims in his instant §
2254 Petition. By Final Order entered on July 10, 2014, the
Circuit Court denied and dismissed Winslow's habeas
petition. Winslow, No. CL14-1630, at 21 (Va. Cir.
Ct. July 10, 2014). The Supreme Court of Virginia refused the
petition for appeal. Winslow v. Clark, No. 141346,
at 1 (Va. June 26, 2015).
CLAIM NOT COGNIZABLE IN FEDERAL HABEAS
Claim Four, Winslow contends that his "due process
rights were violated when the court failed to accept as true
the factual allegations in [his habeas] petition . . .
." (§ 2254 Pet. 11.) Specifically, Winslow
challenges "the substance of the Circuit Court's
findings that were not supported by the record and that the
state court fact-finding process itself was deficient in
material ways that which would amount to an unconstitutional
suspension of the writ." (Id. at 11-12.)
Winslow also believes that a hearing was necessary.
(Id.) However, Winslow's claim alleging
purported errors by the Circuit Court in his state
post-conviction proceeding fails to provide a basis for
federal review or relief. See Bryant v. State of
Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (citations
omitted). Accordingly, Claim Four will be DISMISSED.
EXHAUSTION AND PROCEDURAL DEFAULT
a state prisoner can bring a § 2254 petition in federal
district court, the prisoner must first have "exhausted
the remedies available in the courts of the State." 28
U.S.C. § 2254(b)(1)(A). State exhaustion "'is
rooted in considerations of federal-state comity/" and
in Congressional determination via federal habeas laws
"that exhaustion of adequate state remedies will
'best serve the policies of federalism.'"
Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va.
2005) (quoting Preiser v. Rodriguez, 411 U.S. 475,
491-92 & n. 10 (1973)). The purpose of exhaustion is
"to give the State an initial opportunity to pass upon
and correct alleged violations of its prisoners' federal
rights." Picard v. Connor, 404 U.S. 270, 275
(1971) (internal quotation marks omitted). Exhaustion has two
aspects. First, a petitioner must utilize all available state
remedies before he can apply for federal habeas relief.
See O 'Sullivan v. Boerckel, 526 U.S. 838,
844-48 (1999). As to whether a petitioner has used all
available state remedies, the statute notes that a habeas
petitioner "shall not be deemed to have exhausted the
remedies available in the courts of the State ... if he has
the right under the law of the State to raise, by any
available procedure, the question presented." 28 U.S.C.
second aspect of exhaustion requires a petitioner to have
offered the state courts an adequate
"'opportunity'" to address the
constitutional claims advanced on federal habeas. Baldwin
v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.
Henry, 513 U.S. 364, 365-66 (1995)). "To provide
the State with the necessary 'opportunity, ' the
prisoner must 'fairly present' his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim." Id. Fair
presentation demands that a petitioner present
"'both the operative facts and the controlling legal
principles'" to the state court. Longworth v.
Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting
Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir.
2000)). The burden of proving that a claim has been exhausted
in accordance with a "state's chosen procedural
scheme" lies with the petitioner. Mallory v.
Smith, 27 F.3d 991, 994, 995 (4th Cir. 1994).
distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default."
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
This doctrine provides that "[i]f a state court clearly
and expressly bases its dismissal of a habeas
petitioner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim." Id.
(citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). A federal habeas petitioner also procedurally
defaults claims when he or she "fails to exhaust
available state remedies and 'the court to which the
petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims
procedurally barred.'" Id. (quoting
Coleman, 501 U.S. at 735 n.l). The burden of
pleading and proving that a claim is procedurally defaulted
rests with the state. Jones v. Sussex I State
Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing
cases). Absent a showing of cause and prejudice or a
fundamental miscarriage of justice, this Court cannot review
the merits of a defaulted claim. See Harris v. Reed,
489 U.S. 255, 262 (1989).
Circuit Court found Claim Two (Claim (a)(1) in state court)
barred by the rule in Slayton v. Parrigan, 205
S.E.2d 680, 682 (Va. 1974), because Winslow could have
raised, but failed to raise, this claim on direct appeal.
See Winslow, No. CL14-1630, at 10.Slayton
constitutes an adequate and independent state procedural rule
when so applied. See Mu 'Min v. Pruett, 125 F.3d
192, 196-97 (4th Cir. 1997). Thus, Winslow procedurally
defaulted Claim Two. To the extent Winslow claims that
counsel is the cause for his default, as discussed below in
Claim Three (a), the Circuit Court reasonably determined that
he fails to demonstrate any prejudice, because his voluntary
and intelligent guilty plea waived all non-jurisdictional