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Landeck v. Gilmore

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

October 25, 2016

I.T. GILMORE, Respondent.



         Christopher Todd Landeck ("Landeck"), a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his conviction in the Circuit Court of the City of Richmond, Virginia ("Circuit Court"). By Memorandum Opinion and Order entered on January 28, 2016, the Court granted in part and denied without prejudice in part Respondent's Motion to Dismiss.[1] See Landeck v. Gilmore, No. 3:15CV105, 2016 WL 356085, at *10 (E.D. Va. Jan. 28, 2016). In his §2254 Petition, Landeck argues entitlement to relief based upon the following remaining grounds:[2]

Claim One: Counsel rendered ineffective assistance "pretrial with respect to motion in limine." (§ 2254 Pet. 8.)
Claim Three: "Prosecutorial misconduct/plain error... at trial with respect to multiple instances of the prosecution's improper rebuttal argument.... (Id. at 11.) Specifically, the Commonwealth:
(a) & (b) engaged in "[i]mpermissible vouching" by "improperly express[ing] his opinion of the veracity of a defense witness" (id at 12-13);
(c) "unlawfully manipulated the evidence... by materially misstating... prior testimony" (id. at 13); and
Claim Four: Counsel rendered ineffective assistance by his "ineffective failure to challenge or object to multiple plain errors and to adequately challenge the court's insufficient remedial instruction regarding counsel's only objection to the inflammatory language." (Id. at 12.) Specifically counsel failed to object to the Commonwealth's:
(a) & (b) "[i]mpermissible vouching" (id. at 12-13); (c) "unlawful [] manipulation of] the evidence ... by materially misstating... prior testimony" (id. at 13); and
Claim Five: Counsel rendered ineffective assistance on appeal. (Id. at 17.)

         Respondent has filed supplemental briefing in support of its Motion to Dismiss. (ECF No. 29.) Landeck has responded. ("Resp., " ECF No. 34-1 .)[3] For the reasons stated below, the Motion to Dismiss will be GRANTED.


         Following a jury trial, the Circuit Court convicted Landeck of aggravated malicious wounding and sentenced him to an active term often years of incarceration. Landeck appealed, and the Court of Appeals of Virginia affirmed his conviction. Landeck v. Commonwealth, 722 S.E.2d 643, 645 (Va. Ct. App. 2012). The Supreme Court of Virginia refused Landeck's subsequent petition for appeal. Landeck v. Commonwealth, No. 120612, at 1 (Va. Sept. 13, 2012).

         On September 9, 2013, Landeck filed a petition for a writ of habeas corpus in the Circuit Court raising Claims Two, Three (d), and Four (d) of the instant § 2254 Petition. (ECF No. 17- 1, at 4-6.) On November 8, 2013, Landeck filed an amended petition adding Claims One, Three (a)-(c), Four (a)-(c)s and Five of the instant § 2254 Petition. (ECF No. 17-2, at 5, 7-11.) On May 21, 2014, the Circuit Court denied his petition. (ECF No. 17-3, at 19.) The Circuit Court denied Claims Two, Three (d), and Four (d) of the instant petition because they lacked merit (see Id. at 13-19), and Claims One, Three (a)-<c), Four (a)-(c), and Five of the instant petition because they were untimely filed under section 8.01-654(A)(2) of the Virginia Code. (See Id. at 5.) On February 3, 2015, the Supreme Court of Virginia refused his petition for appeal. (ECF No. 17-4, at l.)[4]


         Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion '"is rooted in considerations of federal-state comity, '" and in the Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O 'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

         The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "'opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary 'opportunity, ' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present "'both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

         "A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when the "petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l).[5] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).

         Here, the Circuit Court found that Claims One, Three (a)-(c), Four (a)-(c), and Five of the instant petition were untimely under Section 8.01-654(A)(2) of the Virginia Code. (See ECF No. 17-3, at 5.) Virginia's statute of limitations for habeas actions is an adequate and independent procedural rule when so applied. See George v. Angelone, 100 F.3d 353, 363-64 (4th Cir. 1996); Sparrow v. Dir. Dep't of Corr., 439 F.Supp.2d 584, 587-88 (E.D. Va. 2006). Nevertheless, in Claim Six, instead of raising a new claim, Landeck alleges that the fact that he lacked counsel to assist him with his state habeas petition serves as the cause for his default of these claims. The Court explained in its earlier Memorandum Opinion that while it believed that Claims One, Three (a)-(c), Four (a)-(c), and Five are defaulted, in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013), the fact that Landeck had no counsel at his "initial-review collateral proceeding" may establish cause for the procedural default of these claims. Martinez, 132 S.Ct. at 1320. The Court further indicated that because of Martinez, judicial economy dictated that the Court address the merits of Claims One, Three (a)-(c), Four (a)-(c), and Five. See Daniels v. Hinkle, No. 3:11CV675, 2012 WL 2792199, at *1 (E.D. Va. July 9, 2012) (citing Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999)). The Court directed Respondent to file a further response addressing the merits of these remaining claims. Respondent has done so.

         With respect to Claims 3(a), (b), and (c), which allege prosecutorial misconduct and not ineffective assistance of counsel, Respondent argues that Martinez fails to excuse Landeck's procedural default of these claims. The Court agrees that Landeck defaulted these claims because he did not raise them at trial or on direct appeal. During both of those proceedings, Landeck was represented by counsel. These claims are defaulted because counsel failed to raise the purported prosecutorial misconduct during trial or an appeal, not because of any lack of counsel during the initial collateral review proceeding. Nevertheless, the Court construes Landeck to argue that ineffective assistance of counsel is the cause for the default of these claims. As discussed below in Part III.C.l, counsel was not deficient, and Landeck was not prejudiced by counsel's actions. Accordingly, ineffective assistance of counsel fails to serve as the cause for the default of these claims. Claims 3(a), (b), and (c) will be DISMISSED.


         A. Standard of Review

         To demonstrate ineffective assistance of counsel, a convicted defendant must show, first, that counsel's representation was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         B. Summary of Landeck's Guilt

         Because a summary of Landeck's guilt aids in the resolution of Landeck's claims, the Court now turns to the evidence presented at trial. The Court of Appeals of Virginia aptly explained the overwhelming evidence against Landeck as follows:

[T]he evidence at trial established that A.F.[6] intended to walk to a bus stop on Robinson Street in the City of Richmond at about noon on January 1, 2010. While A.F. was on the way to the bus stop, A.F. testified, he "was approached" on foot by appellants near the corner of Davis Avenue and Cary Street. According to the record in this case, A.F. is five feet four inches tall and 140 pounds, whereas appellants are significantly larger-Christopher Landeck is six feet two inches tall and 240 pounds, and David Landeck is six feet four inches tall and 275 pounds.
A.F. testified that David Landeck called A.F. "a name, " and then they "got to arguing." A.F. continued to walk in the direction of the bus stop, but David Landeck "pulled [a] knife out." A.F. "tried to go around him, " but then Christopher Landeck "got right behind me." This initial confrontation ended when David Landeck put away the knife. A.F. walked away from appellants and in the direction of Mule Barn Alley, which connects Davis Avenue and Robinson Street. According to A.F., appellants told him ...

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