United States District Court, E.D. Virginia, Alexandria Division
James J. Brooks, Petitioner,
Director of the Department of Corrections, Respondent.
ELLIS, III UNITED STATES DISTRICT JUDGE
J. Brooks, 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
convictions of second degree murder and use of a firearm in
die commission of a felony in die Circuit Court for the City
of Virginia Beach. On August 26, 2016, respondent filed a
Motion to Dismiss and Rule 5 Answer, along with a supporting
brief and exhibits. Petitioner was given die opportunity to
file responsive materials, pursuant to Roseboro v.
Garrison. 528 F.2d 309 (4tii Cir. 1975) and Local Rule
7K. Petitioner filed a response on September 14, 2016. For
the reasons that follow, respondent's Motion to Dismiss
must be granted, and die petition must be dismissed, with
record reflects me following. Petitioner is detained pursuant
to a final judgment of the Circuit Court for the City of
Virginia Beach, entered April 9, 2014. Dkt. No.1. Pursuant to
a jury trial, petitioner was convicted of second degree
murder and use of a firearm in die commission of a felony.
Dkt. No. 9-2. Petitioner was sentenced to thirty five years
pursued a direct appeal to the Court of Appeals of Virginia,
where the appeal was denied. Id. .Petitioner then
appealed to the Supreme Court of Virginia asserting the
following assignments of error:
1. The Court of Appeals erred when it upheld the trial
court's conviction of [petitioner] because the eyewitness
identification of [petitioner] was unreliable, incredible [,
] and inaccurate.
2. The Court of Appeals erred when it upheld the  trial
court's conviction because the evidence was entirely
circumstantial and thus no reasonable jury could have found
[petitioner] shot Laurie Escobar.
3. The Court of Appeals erred when it upheld the trial
court's decision to overrule [petitioner's]
Batson motion as the Commonwealth's stated
reasons for striking the only African American male from the
jury were pretextual and purposefully discriminatory, and the
trial court did not engage in meaningful Batson
analysis as required by the law.
No. 150498. By Order dated February 8, 2016, the Supreme
Court of Virginia refused petitioner's petition for
facts as laid out by the Court of Appeals are as
[D]uring the early morning hours of August 21, 2012, Laurie
Escobar was shot and killed in an apartment in Virginia
Beach. Marina Puetz, Puetz's boyfriend, A.J., and Brian
Keith Brown were also in the apartment at the time of the
murder. [Petitioner] had recently moved out of the residence,
and Brown moved into [petitioner's] former bedroom.
[Petitioner] was angry with Escobar because [he] believed she
was "a snitch." A week before the shooting, Escobar
was arrested and the next day police searched her room and
the apartment. [Petitioner] came by asking about the search
and what had been said about him to the police. Brown spoke
with [petitioner] on the day leading up to the shooting.
[Petitioner] asked him if Escobar was at the apartment. Brown
responded that he was not at home but would tell [petitioner]
if she was there when he returned. Later, Brown sent
[petitioner] a message that Escobar was at the apartment and
left the door unlocked for him. Within fifteen minutes of
sending [petitioner] the text message, Brown heard the front
door open and moments later heard the gunshots.
Puetz occupied the bedroom next to Brown's and had been
living in the apartment when [petitioner] also lived there
with his girlfriend. Escobar was visiting Puetz on the night
she was murdered. That night, Brown returned home around
midnight and visited with them in Puetz's room before
going to his own bedroom. A short time later, a masked man
entered the apartment, came to Puetz's room, made eye
contact with her, looked around the room, and moved to the
bathroom. Puetz heard gunshots. She hid in her room and
called the police. Despite the mask, Puetz recognized the
shooter as [petitioner]. She recognized his eyes as well as
his movements and body language. She also recognized his
build, his clothing, and a ring he wore.
John Dufford lived with [petitioner] after [petitioner] moved
out of the residence he shared with Puetz and the others.
Dufford purchased a distinctive type of gun in March 2012 and
gave the gun to [petitioner]. Dufford indicated [petitioner]
always carried it with him. On the night of the murder,
[petitioner] left his apartment between 10:00 p.m. and
midnight and returned between 1:30 and 2:00 in the morning.
[Petitioner] appeared anxious upon his return but did not say
what was bothering him. When Dufford awoke in the morning,
[petitioner] and his girlfriend were "glued" to
news accounts of the murder. [Petitioner] refused to answer
when Dufford asked if he had committed the murder but called
the victim "a snitch" and said she "got what
she deserved." [Petitioner] and his girlfriend abruptly
packed their things, left the apartment, and never returned.
[Petitioner's] cell phone records indicate his phone was
used near the murder scene around the time of the murder. All
shell casings found at the scene had been fired by the same
gun. The type of gun Dufford had given [petitioner] was the
same type of weapon that was fired in the apartment.
[Petitioner] remained at large until he was located in
Norfolk on September 28, 2012.
Record No. 0764-14-1.
pursuing his direct appeal, petitioner filed a petition for a
writ of habeas corpus in the Circuit Court for the City of
Virginia Beach on August 14, 2014. In his state habeas