United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
Mebane Day, a 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 grand larceny in the Circuit Court of
Southampton County. Before this Court is the respondent's
Motion to Dismiss this petition.
charged with a single count of grand larceny for his
participation in the theft of a piece of farm equipment. Case
No. CR13000148; Resp. Ex. A, Pet. for Appeal at 2-5.
Following a joint bench trial with two codefendants on March
20, 2014, Day was found guilty, and at a hearing on August
14, 2014 he received a sentence often (10) years
incarceration with seven (7) years suspended.
prosecuted a direct appeal, raising the sole claim that the
evidence was insufficient to sustain the conviction because
it "failed to establish [he] intended to permanently
deprive the owner of his property." The Court of Appeals
of Virginia denied the petition for appeal on April 15, 2015.
Dav v. Commonwealth. R. No. 1980-14-1 (Va. Ct. App.
Apr. 15, 2015); Resp. Ex. A. On November 17, 2015, the
Supreme Court of Virginia refused Day's petition for
further review. Day v. Commonwealth. R. No. 150745
(Va. Nov. 17, 2015); Resp. Ex. A.
filed no state habeas corpus petition. Instead, he turned to
the federal forum and timely filed this application for
relief pursuant to 28 U.S.C. § 2254, raising the
1. He was not in control of the truck. [Codefendant] Julian
Lee Perry was the driver, and he was an innocent bystander.
He did not have custody or control of the item in the
trailer, and the prosecutor could not prove that he intended
to permanently deprive the owner of the property. He had no
knowledge that a crime was taking place.
2. He was denied due process when the trial judge denied the
motion to dismiss the charge, because the Commonwealth could
not prove his intent or participation in the crime, even as a
3. He had no knowledge of the crime, he was only trying to
get a ride to the store. He was denied the right to testify.
4. He was denied his right to confront witnesses and to tell
filed a Motion to Dismiss and a supporting brief on June 10,
2016, and provided petitioner with the notice required by
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7(K). Petitioner responded in the form of a
letter, and respondent replied. (Dkt. No. 31-32).
Accordingly, this matter is now ripe for disposition.
Exhaustion and Procedural Default
bringing a federal habeas petition, a state prisoner must
first exhaust his claims in state court, and failure to
exhaust a claim requires its dismissal by the federal court.
See 28 U.S.C. § 2254(b); Rose v. Lundy. 455
U.S. 509, 515-19 (1982). To comply with the exhaustion
requirement, a state prisoner "must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process."
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). Thus, in Virginia, a § 2254 petitioner must
first have presented the same factual and legal claims to the
Supreme Court of Virginia either by way of a direct appeal, a
state habeas corpus petition, or an appeal from a circuit
court's denial of a state habeas petition. Matthews
v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997).
brief supporting the Motion to Dismiss this petition,
respondent argued that claims 3 and 4, in which petitioner
alleged violation of his rights to testify and to confront
his accusers, are procedurally defaulted from federal review
because they have not been exhausted before the Supreme Court
of Virginia and would be procedurally barred under state law
if petitioner were to attempt to exhaust them now. Baker
v. Corcoran,220 F.3d 276, 288 (4th Cir. 2000);
Slayton v. Parrigan,215 Va. 27, 205 S.E.2d 680
(1974), cert, denied.419 U.S. 1108 (1975).
Respondent noted, however, that the claims could receive