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Moore v. Pearson

United States District Court, E.D. Virginia, Alexandria Division

September 20, 2016

James Alexander Moore, Petitioner,
v.
Eddie L. Pearson, Respondent.

          MEMORANDUM OPINION

         James 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.

         I. Background

         According 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.

         On 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.

         Moore 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, 2010.

         Moore 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.

         In an 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. 14, 2012).

         Moore 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 psychiatrist.
(c) The Court of Appeals violated his right to counsel by its handling of Moore's appeal after his attorney filed an Anders brief;
(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 appropriate brief;
(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 Anders brief;
(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 a defense;
(m)[1] Moore was wrongfully denied access to an independent defense expert;
(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 brain damage;
(p) Moore received ineffective assistance when counsel failed to file a pre-trial motion for the appointment of a neuropsychologist;
(q) Trial counsel erred in failing to subject the prosecution's case to an ...

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