United States District Court, E.D. Virginia, Alexandria Division
Alexander Moore, 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
conviction of second degree murder, statutory burglary, and
other offenses entered on a plea of guilty in the Circuit
Court for the City of Norfolk. On August 6, 2014, respondent
filed a Motion to Dismiss and a Rule 5 Answer, along with a
supporting brief. (Dkt. No. 10-12) Petitioner was given the
opportunity to file responsive materials, pursuant to
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7(K), and after an unusually protracted
exchange of motions and replies, petitioner filed a Motion
Opposing Respondent's Motion to Dismiss, an affidavit, a
traverse, and a pleading captioned as his "Version of
Facts." (Dkt. No. 47, 49-51) For the reasons that
follow, respondent's Motion to Dismiss will be granted,
and this petition will be dismissed with prejudice.
Petitioner's Motion for Discovery (Dkt. No. 48) and
Motion for Reconsideration (Dkt. No. 58) will be denied.
to the Commonwealth's brief on direct appeal, the
stipulated facts of petitioner's case were as follow:
[O]n January 5, 2009 the defendant had called Katrina Wilson
and she hung up on him. He went to her home, banged on the
door, and demanded that she speak with him. Katrina did not
answer the door. The defendant then kicked in the front door,
breaking the door frame. He went inside where he was
confronted by Katrina's nephew. The defendant threatened
to kill Katrina. When told police were on the way, he left
(4/27/10 Tr. 8-9).
On April 26, 2009 Katrina and her family were leaving for
church. Her family members left in one car. Katrina's
next-door neighbor, Wanda Heckstall, saw the defendant
walking toward Katrina's home. Ms. Heckstall went into
her house to call Katrina to warn her. She got no answer and
walked back onto her front porch. Ms. Heckstall saw Katrina
sitting in the driver's seat of her car, parked in her
driveway. The defendant confronted Katrina at the car. Ms.
Heckstall saw the defendant slash Katrina's tire and
heard him tell her she was not going anywhere. Ms. Heckstall
called 911. She saw the defendant yank Katrina out of the car
and stab her, as Ms. Heckstall yelled at him to stop (4/27/10
Tr. 9-10). The defendant ran away, dropping the knife nearby.
The knife was found to have the tip broken off. Police found
a piece of metal broken off in the trunk lock of
Katrina's car. That piece of metal was later matched to
[the] knife used to stab Katrina (4/2710 Tr. 10-11, 14-15;
Comm. Ex. C-5).
Katrina suffered seven stab wounds, including a fatal wound
to her left neck that was five inches deep.... Katrina's
blood was found on the defendant's pants when he was
arrested two days later. (4/27/10 Tr. 11, 14; Comm. Ex. C-4).
The other charges to which the defendant pled guilty were
unrelated to the above events. On January 25, 2009 the
defendant grabbed a case of cigarettes worth $1118.69 out of
the back of a delivery truck that was unloading merchandise
at a Wawa store. The defendant jumped out of the truck and
ran as the truck's driver yelled at him to stop. Police
were nearby. They chased and caught the defendant and
recovered the cigarettes that the defendant had thrown down
in the chase. The defendant gave a false name and false
social security number when arrested. He tried to destroy a
witness statement when an officer stepped out of the room
(4/27/10 Tr. 12-13).
Case No. 1654-10-1, 1709-10-1; Brief in Opp. to Pet. for
Appeal at pp. 3-5.
March 18, 2009, Moore was indicted for burglarizing the home
of Katrina Wilson on January 5, 2009. On April 1, 2009, he
was indicted for grand larceny for stealing the case of
cigarettes. He was given a bond and was released from custody
on April 2, 2009. The murder of Katrina Wilson occurred on
April 26, 2009, and Moore was indicted for that offense on
October 7, 2009. Id. at 1. On April 27, 2010, Moore
pleaded guilty to second degree murder, statutory burglary,
grand larceny, and the misdemeanors of destruction of
property, presenting a false ID to the police, and
obstructing justice. Id. at 2. Motions to withdraw
the pleas filed pro se by Moore were denied on June 15, 2010
and July 21, 2010. Also on July 21, 2010, Moore was sentenced
to a total of 83 years incarceration, and a prior suspended
sentence on a probation violation was revoked. Id.
prosecuted a direct appeal pursuant to Anders v.
California. 86 U.S. 738');">386 U.S. 738 (1967), in which his counsel
raised the following claims:
1. The trial court abused its discretion in denying his
motion for appointment of an expert to perform a
neuropsychological examination for sentencing purposes.
2. The trial court abused its discretion in refusing to allow
him to withdraw his guilty plea on June 15, 2010 and July 21,
also filed a pro se supplemental petition for appeal in which
he raised eight (8) claims of ineffective assistance of
counsel and also argued that: (1) the trial court erred in
allowing him to act pro se in moving to withdraw his guilty
pleas; (2) he was prejudiced by the appointment of a special
prosecutor; and (3) his right to gather evidence and prepare
a defense was violated by the trial court's ruling that
diminished capacity was not a defense.
opinion issued on February 23, 2011, the Court of Appeals
found the appeal to be "wholly frivolous." In
particular, the Court rejected the three points of error
suggested by counsel on the merits. As to the claims raised
pro se by Moore, the Court found that the eight assignments
of error asserting ineffective assistance of counsel were not
cognizable on direct appeal. It determined that the claims
concerning Moore's pro se status on one of the motions to
withdraw the guilty pleas and the appointment of a special
prosecutor had not been presented to the trial court and
hence were barred from consideration on appeal by Rule 5A:18.
Lastly, it found no error in the trial court's ruling
that diminished capacity was not a defense. See Moore v.
Commonwealth. R. Nos. 1654-10-1 and 1709-10-1 (Va. Ct.
App. Feb. 23, 2011). The Supreme Court of Virginia refused
Moore's petition for a second-tier appeal on March 14,
2012. Moore v. Commonwealth. R. No. 111062 (Va. Mar.
then returned to the trial court and filed a 139-page
petition for a state writ of habeas corpus, accompanied by
copious exhibits. In its response to the petition, the
Commonwealth discerned the following claims:
(a) Moore was denied effective assistance prior to trial when
his attorney wrongly advised him to plead guilty after
failing to inform him of a mental health report.
(b) Counsel was ineffective for not investigating or ensuring
that Moore received an appropriate evaluation by a competent
(c) The Court of Appeals violated his right to counsel by its
handling of Moore's appeal after his attorney filed an
(d) He was denied effective assistance of counsel in that his
attorney did not file a motion to withdraw the guilty plea or
assist petitioner in doing so;
(e) Appellate counsel was ineffective for failing to
adequately review the trial transcript and to prepare an
(f) Trial counsel provided ineffective assistance by coercing
him to plead guilty;
(g) Trial counsel failed to investigate or offer authority
for the appointment of a neuropsychologist for the purpose of
developing mitigating evidence at sentencing;
(h) Appellate counsel was ineffective for submitting an
(I) Trial counsel provided ineffective assistance by advising
Moore to plead guilty to all charges and to have them
consolidated into a single sentencing hearing;
(j) The trial judge was biased against Moore;
(k) Moore was deprived of an adequate opportunity to present
Moore was wrongfully denied access to an independent defense
(n) Trial counsel was ineffective for failing to investigate
the viability of an insanity defense;
(o) Trial counsel should have requested an independent
psychiatrist and/or additional testing to pursue evidence of
(p) Moore received ineffective assistance when counsel failed
to file a pre-trial motion for the appointment of a
(q) Trial counsel erred in failing to subject the
prosecution's case to an ...