United States District Court, E.D. Virginia, Alexandria Division
Brown, 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 several theft offenses in the Circuit Court of
Stafford County. Before this Court is the respondent's
Motion to Dismiss the petition, as well as petitioner's
Motion for Summary Judgment.
December 22, 2008, petitioner was convicted following a jury
trial of one count each of conspiracy to commit larceny,
larceny with intent to sell or distribute, felony
shoplifting/concealment, and felony petit larceny. He
received an aggregate sentence of forty-four (44) years
incarceration with twenty-four (24) years suspended, for a
total active sentence of twenty (20) years.
direct appeal, counsel for petitioner moved for leave to
withdraw pursuant to Anders v. California. 386 U.S.
738 (1967), and suggested as arguable support for the appeal
that the trial court erred when it imposed an active
sentence. In his pro se supplemental petition for appeal,
petitioner added claims that the trial court erred when it
allowed an unsigned pawn slip into evidence and that the
evidence was insufficient to support the convictions. The
Court of Appeals denied the petition for appeal and granted
counsel's motion to withdraw. Brown v.
Commonwealth. R. No. 0050-09-4 (Va. Ct. App. Oct. 21,
2009). On November 30, 2010, the Supreme Court of Virginia
refused a petition for appeal. Brown v.
Commonwealth. R. No. 100887 (Va. Nov. 30, 2010).
January 17, 2011, petitioner filed a pro se petition for a
state writ of habeas corpus in the Circuit Court of Stafford
County, raising the following claims:
1. He received ineffective assistance of counsel where
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result.
2. His rights to due process and a fair trial were violated
when the trial court admitted testimony about alleged
unrelated bad acts.
3. The conviction of larceny with the intent to sell or
distribute is void where the record fails to show that the
grand jury returned an indictment for that offense.
4. The trial court erred in failing to disqualify a juror who
was employed by the establishment that was the victim of the
5. The trial court violated his rights to due process and a
fair trial when it allowed the introduction of
petitioner's prior sentences.
6. His convictions of shoplifting/concealment and petit
larceny, third or subsequent offense violated the double
counsel for petitioner entered the case, and attempted to
amend the petition to add several new claims, among which was
the argument that habeas corpus relief was warranted because
the jury had not been instructed consistent with Fishback
v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000) that
parole had been abolished in Virginia. The Motion for Leave
to Amend was denied in an interlocutory letter opinion on
February 14, 2014, and the circuit court dismissed the
petition in its entirety on November 10, 2014. Brown v.
Warden. Case No. CL11 -62. Petitioner appealed that
result, and the Supreme Court of Virginia dismissed and
denied the appeal on September 4, 2015. Brown v.
Clarke. R. No. 150073 (Va. Sept. 4, 2015).
timely filed the instant federal petition on September 18,
2015, raising the following claims:
1. His rights to due process and a fair trial were violated
when the trial court admitted testimony about ...