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Session v. Director, Va. Department of Corrections

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

December 21, 2016

Alvin Session, Petitioner,
v.
Director, Va. Department of Corrections, Respondent.

          MEMORANDUM OPINION

          Anthony J. Trenga United States District Judge

         Alvin 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.

         I. Background

         On July 9, 2013, a jury found petitioner guilty of robbery and use of a firearm in the commission of a felony based on the following facts:

[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 purse.

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. Ex. 1.

         Petitioner 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.

         On August 3, 2015, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, raising the following claims:

1. The trial proceedings violated his right to a speedy trial.
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 race-neutral.
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 sole witness.
5(b). He received ineffective assistance of counsel when his attorney failed to properly object to the prosecution's misconduct.
5(c). He received ineffective assistance of appellate counsel when his attorney failed to present meritorious issues on appeal.

         The petition was dismissed on March 14, 2016. Session v. Director. Dep't of Corrections, R. No. 151201 (Va. Mar. 14, 2016); Resp. Ex. 5.

         Session 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) ...


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