United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING RESPONDENT'S MOTION
E.HUDSON, UNITED STATES DISTRICT JUDGE.
Earl Cottrell, 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
("§ 2254 Petition, " ECF No. 1) challenging
his convictions of two counts of assault and battery on a
corrections officer. In his § 2254 Petition, Cottrell
argues entitlement to relief upon the following
Claim One: "Lack of subject matter jurisdiction;
conspiring to obtain illegal convictions. Knowingly and
willfully." (Id. at 6.)
Claim Two: "Conspiracy to deny jury instruction;
omitting failure to prove 'beyond a reasonable doubt'
the sworn oaths of plaintiffs." (Id. at 8.)
Claim Three: "Ineffective assistance of counsel-denying
fair and separate trials as justice required."
(Id. at 9.)
Claim Four: "Ineffective assistance in failing to object
to a known lack of subject matter jurisdiction by the
court." (Id. at 11.)
Claim Five: "Ineffective assistance in failing to object
to deliberate[ly] omitted jury instruction."
(Id. at 19.)
Claim Six: "Ineffective assistance in failing to object
to prosecutor's duty to prove all elements of
offense." (Id. at 20.)
Claim Seven: "Ineffective assistance in failing to
object to insufficiency of evidence to convict."
Claim Eight: "Ineffective assistance being denied of
fair and meaningful appellate rights." (Mat 21.)
moves to dismiss the § 2254 Petition. Cottrell has
responded. The matter is ripe for disposition. For the
reasons stated below, the Court will grant Respondent's
Motion to Dismiss and will deny Cottrell's § 2254
in the Circuit Court for the County of Sussex, Virginia
("Circuit Court") convicted Cottrell of two counts
of assault and battery of a correctional officer, and fixed
his sentence at a term of five years of incarceration. (ECF
No. 19-1, at 3.) On May 6, 2013, the Circuit Court entered
final judgment and sentenced Cottrell to five years.
filed a petition for appeal raising three claims of trial
court error. (ECF No. 19-2, at 2.) The Court of Appeals of
Virginia awarded Cottrell an appeal on two claims, and denied
his petition for appeal with respect to the third claim. (ECF
No. 19-3, at 1-2.) Subsequently, the Court of Appeals of
Virginia affirmed Cottrell's convictions. (ECF No. 19-4,
at 9.) The Supreme Court of Virginia dismissed in part, and
refused in part, the petition for appeal. (ECF No. 19-5, at
filed his first petition for a writ of habeas corpus in the
Supreme Court of Virginia, but ultimately moved to withdraw
the action after Respondent filed a motion to dismiss, (ECF
No. 19-6, at I; see Br. Supp. Mot. Dismiss ¶ 5,
ECF No. 19.) On the same day, August 17, 2015, Cottrell filed
a second petition for a writ of habeas corpus. (See
ECF No. 19-6, at 1.) On August 20, 2015, the Supreme Court of
Virginia acknowledged that Cottrell filed the second petition
for a writ of habeas corpus and granted the motion to
withdraw the first petition for writ of habeas corpus.
(Id.) In his second petition for a writ of habeas
corpus, Cottrell raised the following vague claims:
1. Ineffective assistance of counsel.
2. Prosecutorial Misconduct.
3. Judicial Misconduct.
4. Lack of subject matter jurisdiction to convict.
5. Denied of jury instruction charging proof beyond a
reasonable doubt of sworn oaths of correctional officers.
(ECF No. 19-7, at 4-5 (as paginated by CM/ECF).) None of the
attachments to Cottrell's habeas petition provided any
further argument in support of his claims. See
Petition for Writ of Habeas Corpus, Cottrell v.
Barksdale, No. 151263 (Va. filed Aug. 17, 2015).
December 8, 2015, the Supreme Court of Virginia dismissed
Cottrell's habeas petition finding that
"petitioner's claims assert conclusions or opinions
without providing factual support and, therefore, do not
support the issuance of a writ of habeas corpus. Perm v.
Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601
(1948)." (ECF No. 19-8, at 1.) Oik February 29, 2016,
the Supreme Court of Virginia denied Cottrell's petition
for rehearing. (ECF No. 19-9, at 1.)
April 5, 2016, the Court received Cottrell's § 2254
Petition that raises the greatly expanded claims for relief
as set forth above.
EXHAUSTION AND PREOCEDURAL DEFAULT
To the extent Cottrell's current claims were presented to
the Supreme Court of Virginia in his bare-bones habeas
petition, the claims are exhausted for purposes of federal
To the extent Cottrell has expanded on the bare-bones claims
he raised in his state habeas petition in the Supreme Court
of Virginia, his claims are not exhausted for the purposes of
federal habeas review, as the legal theories and factual
allegations Cottrell now presents differ from those he
advance[d] in the Supreme Court of Virginia. His claims
should be deemed simultaneously procedurally defaulted and
exhausted because Cottrell failed to present these claims to
the Supreme Court of Virginia.
(Br. Supp. Mot. Dismiss ¶¶ 13-14.) The Court
declines to find Cottrell's claims barred from review
here on the basis of procedural default. While Claims Three
through Eight are defaulted because Cottrell failed to raise
them before the Supreme Court of Virginia, in light of
Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Court
addresses the merits of these claims. See Id. at
1321 (Scalia, J., dissenting) (observing that as "a
consequence of today's decision the States will
always be forced to litigate in federal habeas, for
ineffective-assistance-of-trial-counsel claims (and who knows
what other claims)... the validity of the defaulted claim
(where collateral-review counsel was not appointed)").
The Court also believes that Claims One and Two are
defaulted, however, these claims are readily dismissed
because they lack merit.
THE APPLICABLE CONSTRAINTS UPON HABEAS REVIEW FOR CLAIMS ONE
order to obtain federal habeas relief, at a minimum, a
petitioner must demonstrate that he is "in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996 further circumscribed this
Court's authority to grant relief by way of a writ of
habeas corpus. Specifically, "[s]tate court factual
determinations are presumed to be correct and may be rebutted
only by clear and convincing evidence." Gray v.
Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28
U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C.
§ 2254(d), a federal court may not grant a writ of
habeas corpus based on any claim that was adjudicated on the
merits in state court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court emphasizes that
the question "is not whether a federal court believes
the state court's determination was incorrect but whether
that determination was unreasonable-a substantially higher
threshold." Schriro v. Landrigan, 550 U.S. 465,
473 (2007) (citing Williams v. Taylor, 529 U.S. 362,
raised Claims One and Two on direct appeal. Thus, the
Court's review of those claims is constrained by the
SUFFICIENCY OF THE EVIDENCE CLAIMS
federal habeas petition warrants relief on a challenge to the
sufficiency of the evidence only if "no rational trier
of fact could have found proof of guilt beyond a reasonable
doubt" Jackson v. Virginia, 443 U.S. 307, 324
(1979). The relevant question in conducting such a review is
whether, "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Id. at 319 (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). The
critical inquiry on review of the sufficiency of the evidence
to support a criminal conviction is "whether the record
evidence could reasonably support a finding of guilt beyond a
reasonable doubt." Id. at 318.
majority of Cottrell's repetitive claims, although
brought under the guise of lack of jurisdiction or conspiracy
or ineffective assistance of counsel, stem from
Cottrell's insistence that the warden and the officer
that he assaulted and battered failed to qualify as
correctional officers or protected persons for the enhanced
felony penalty. He contends that insufficient evidence
existed that the warden and officer were correctional
officers, and thus, he should have only been convicted of a
misdemeanor. To understand the frivolity of Cottrell's
claims, the Court first provides a summary of the evidence
and underlying procedural history. The Court of Appeals of
Virginia aptly summarized the trial proceedings and the
evidence of Cottrell's overwhelming guilt as follows:
On July 1, 2012, Correctional Officer Jones was working, in
uniform, at Sussex I State Prison. She was working in the
control booth of Housing Unit 2 where she could both control
the cell doors and monitor two of the housing unit's
pods, "Charlie" and 'Delta." Each pod
consists of two floors. The control booth is elevated so that
it is between the two floors. The control booth has barred
windows that can be opened. Officer Jones was alone in the
booth. Correctional Officer Marvin Harvell was working as the
floor officer for "Charlie" pod. Appellant was an
inmate housed in "Charlie" pod. Both Officers Jones
and Harvell knew appellant.
Around noon that day, the officers were preparing to send the
inmates to be locked into their cells. At Officer
Harvell's direction, Officer Jones opened the cell doors
from her position in the control booth. Officer Harvell
directed the inmates to go to their cells. When Officer Jones
heard an inmate call her name, she felt and smelled feces hit
her in the control booth. She pushed her chair back from the
desk at which she was seated. As a result, she was not hit by
a second cup of feces thrown at her.
Officer Jones looked in the direction from which the feces
had come and saw appellant, near the control booth, walking
away from her. Officer Jones told Officer Harvell what
happened and went to clean up. Officer Harvell saw Officer
Jones covered in feces. He then looked toward the pod stairs
and saw appellant coming down the stairs. Officer Harvell saw
no other inmates on the second floor of the pod. After