United States District Court, E.D. Virginia, Richmond Division
RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE.
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. 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
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.)
has filed supplemental briefing in support of its Motion to
Dismiss. (ECF No. 29.) Landeck has responded. ("Resp.,
" ECF No. 34-1 .) For the reasons stated below, the Motion
to Dismiss will be GRANTED.
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).
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.)
EXHAUSTION AND PROCEDURAL DEFAULT
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. §
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).
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). 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).
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.
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.
PURPORTED INEFFECTIVE ASSISTANCE OF COUNSEL
Standard of Review
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.
Summary of Landeck's Guilt
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
[T]he evidence at trial established that A.F. 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 ...