United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga United States District Judge
Session, 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 convictions
entered in the Circuit Court of the City of Richmond. Case
Nos. CR13F02256 - 57. Before this Court is the
respondent's Motion to Dismiss the petition.
9, 2013, a jury found petitioner guilty of robbery and use of
a firearm in the commission of a felony based on the
[T]he evidence proved that around 3:30 a.m. on July 26, 2012,
Misa Brown was walking home when she noticed two men in a
white Buick with no hubcaps staring at her as it circled the
block. She lost sight of them momentarily, but encountered
the two men - appellant and a younger individual - on foot as
she reached the entrance to her apartment building. The
younger man turned to Brown and said, 'Get on the ground,
bitch.' Brown saw that the younger man had a black
handgun pointed at her head. Appellant was standing slightly
behind and to the side of the younger man. Brown said that
she would not get on the ground, to which the younger man
replied, 'You better get on the ground or I'm going
to shoot you.' Brown again refused to get on the ground.
She then saw a car turn onto the street, and she dropped her
purse where she was standing and ran toward the car. Brown
looked back to see if she was followed, and she noticed
appellant bend over to pick up something from the sidewalk.
She could not see what appellant grabbed, but she testified
that the only thing on the ground was her purse. After
appellant retrieved the item, the two men left together,
running in the same direction.
Brown called the police and described the two men she had
encountered and what they were wearing, as well as the
vehicle they had been driving. A few minutes after receiving
the call, Officer Virgil Burton of the Richmond Police
Department found the white Buick with no hubcaps within
walking distance from the scene of the robbery. Burton
stopped the vehicle and detained both men. The driver
surrendered a loaded black firearm upon exiting the vehicle.
The younger man was driving and appellant was in the
passenger seat, and both were wearing clothing that matched
the description given by Brown. Searching the vehicle, Burton
recovered Brown's purse from the passenger floorboard.
Brown's credit cards and identification were still in the
Session v. Commonwealth, R. No. 2459-13-2 (Va. Ct.
App. June 26, 2014), slip op. at 2-3; Resp. Ex. 3. Petitioner
received a sentence of eleven (11) years imprisonment. Resp.
appealed the convictions to the Court of Appeals of Virginia,
arguing that the trial court erred in denying his motions to
strike because the evidence was insufficient to prove that a
robbery occurred and, if it did, that he had committed or
aided and abetted the robbery as a principal or a principal
in the second degree. The Court of Appeals concluded that
"[t]he record contains sufficient evidence to support
the jury's verdict" and denied the appeal on June
26, 2014. Id. The Supreme Court of Virginia refused
petitioner's application for further review on January
22, 2015. Session v. Commonwealth, R. No. 141143
(Va. Jan. 22, 2015); Resp. Ex. 4.
August 3, 2015, petitioner filed a petition for a writ of
habeas corpus in the Supreme Court of Virginia, raising the
1. The trial proceedings violated his right to a speedy
2. His rights to due process and a fair trial were violated
when the prosecution exercised all of its preemptive strikes
against African Americans for reasons that were not
3. His right to due process was violated when the court gave
misleading and confusing jury instructions on the required
elements of the offense.
4. His rights to due process and a fair trial were violated
by the totality of the prosecution's misconduct.
5(a). He received ineffective assistance of counsel when his
attorney failed to properly cross-examine and impeach the
5(b). He received ineffective assistance of counsel when his
attorney failed to properly object to the prosecution's
5(c). He received ineffective assistance of appellate counsel
when his attorney failed to present meritorious issues on
petition was dismissed on March 14, 2016. Session v.
Director. Dep't of Corrections, R. No. 151201 (Va.
Mar. 14, 2016); Resp. Ex. 5.
then turned to the federal forum and timely filed the instant
application for relief pursuant to §2254 on May 11,
2016, reiterating the claims raised in the state direct
appeal and habeas corpus proceedings. On June 28, 2016,
respondent filed a Motion to Dismiss with a supporting brief
and exhibits, and provided petitioner with the notice
required by Roseboro v. Garrison,528 F.2d 309 (4th
Cir. 1975) ...