United States District Court, E.D. Virginia, Alexandria Division
Deshawn Johnson, 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 attempted first degree murder and other
offenses entered on a negotiated plea of guilty in the
Circuit Court for the City of Chesapeake. Before this Court
is the respondent's Motion to Dismiss this petition.
March 14, 2014, petitioner pleaded guilty to attempted first
degree murder, attempted malicious wounding, two related
counts of use of a firearm, shooting into an occupied
vehicle, destruction of property, and communicating a threat.
Case Nos. CR13-2467-00, -03, -04, -05, -08, -09, and -11. As
part of the plea agreement, the Commonwealth nolle
prosequied additional charges of attempted first degree
murder, attempted malicious wounding, two related firearms
counts, and destruction of property. Petitioner was sentenced
to an aggregate of forty-three (43) years incarceration with
thirty-three (33) years suspended, for a total active
sentence often (10) years.
noticed an appeal to the Court of Appeals of Virginia,
raising the following claim:
The trial court abused its discretion in sentencing appellant
to ten (10) years of imprisonment, and failed to account
adequately for mitigating circumstances and give due
consideration to running appellant's sentences
concurrently. (This issue was not preserved at sentencing.
Therefore, appellant asked that this Court consider the issue
under the 'ends of justice' exception to Supreme
Court Rule 5:25 and Virginia Court of Appeals Rule 5A:18 ...)
Court of Appeals denied the petition for appeal, rinding as
"It is well settled that when the maximum punishment is
prescribed by statute, 'and the sentence [imposed] does
not exceed that maximum, the sentence will not be overturned
as being an abuse of discretion.'" Valentine v.
Commonwealth. 18 Va.App. 334, 339, 443 S.E.2d 445, 448
(1994) (quoting Abdo v. Commonwealth. 218 Va. 473,
479, 237 S.E.2d 900, 903 (1997)).
The sentences imposed by the trial judge were within the
ranges set by the legislature. See Code §§
18.2-53.1 and 18.2-154. It is within the trial court's
purview to weigh any mitigating factors presented by
appellant and to determine whether it is advisable to run
sentences concurrently or consecutively. Accordingly, the
judge did not abuse his discretion.
Johnson v. Commonwealth. R. No. 0692-14-1 (Va. Ct.
App. Dec. 18, 2014). The Supreme Court of Virginia refused
petitioner's application for further review. Johnson
v. Commonwealth. R. No. 150105 (Va. Aug. 13, 2015).
did not file a action for a state writ of habeas corpus.
Instead, he turned to the federal forum and timely filed this
application for relief pursuant to 28 U.S.C. § 2254,
raising the following claims:
1. The trial court abused its discretion in sentencing him to
10 years active time and in not ordering that the sentences
imposed on the two convictions for use of a firearm under
Virginia Code § 18.2-53.1 be served concurrently.
2. The trial court inadequately considered several mitigating
3. The trial court did not adequately evaluate the evidence
of his learning disability, depression and bipolar condition.
4. The sentence of 10 years is disproportionate and contrary
to the Eighth Amendment protection against cruel and ...