United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga United States District Judge
Herrington, 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 Stafford
County. Before this Court is the respondent's
Motion to Dismiss the petition.
August 1, 2012, a jury found petitioner guilty of three
counts of attempting to obtain money by false pretense, four
counts of perjury, two counts of failing to file a tax
return, and three counts of filing a false income tax return.
After reviewing a presentence report and hearing evidence,
the trial court imposed an active sentence of six years and
24 months incarceration. The court subsequently suspended
imposition of the sentence and appointed counsel to aid
petitioner with post-trial proceedings and direct appeal. On
December 17, 2012, after hearing motions, the court executed
imposition of the sentence.
direct appeal, counsel filed a brief pursuant to Anders
v. California. 386 U.S. 738 (1967), along with a motion
to withdraw. The sole arguable error cited was that the trial
court abused its discretion by sentencing petitioner to six
years and 24 months incarceration given the nature of his
crimes. When petitioner was provided with the opportunity to
raise any claims he might choose, he filed a "list of
errors" setting out 134 instances of alleged
irregularities. The appellate court rejected the contention
that the sentence constituted an abuse of discretion, noting
that the sentences imposed were within the ranges set by the
legislature and that no evidence had been presented to
indicate that they were "so grossly disproportionate as
to shock the conscience." Herrington v.
Commonwealth. R. No. 1945-12-4 (Va. Ct. App. Nov. 5,
2013), slip op. at 2, quoting Wolkind v. Selph. 473
F.Supp. 675, 679 (E.D. Va. 1979), affd, 649 F.2d 865 (4th
Cir. 1981). As to petitioner's "list of errors,
" the court determined:
In his supplemental petition for appeal, appellant alleges
134 instances of error committed by the trial court.
Deciphering appellant's 'list of errors' requires
reference to a system of abbreviations of appellant's own
creation. The allegations of error are unsupported by legal
argument or citation to authority except by cross-reference
to appellant's compilation, in a separate section of the
petition, of various statements of law. [FN 1]
 Many of appellant's allegations do not contain an
exact citation to the record or particular transcript where
appellant preserved his objection in the trial court.
Examination of the citations to the record that appellant has
provided reveals that in many instances appellant raised no
objection to the action of the trial court about which he
complains on appeal. Consideration of these issues is thus
barred by Rule 5A:18, which provides that '[n]o ruling of
the trial court ... will be considered as a basis for
reversal unless an objection was stated with reasonable
certainty at the time of the ruling....'
Rule 5A: 12(c)(5) mandates that the petition for appeal
include 'principles of law and the authorities' with
respect to each assignment of error. The principles of law
and the authorities may not be 'scattered through the
petition.' Rule 5A: 12(c)(5).
The petition for appeal does not contain argument that
sufficiently complies with Rule 5 A: 12(c)(5). This Court
"'may... treat a question presented as
waived'" when we determine that "a party's
'failure to strictly adhere to the requirements' of
the rule regarding legal argument is "significant."
Parks v. Parks. 52 Va.App. 663, 664, 666 S.E.2d 547,
548 (2008) (quoting Jay v. Commonwealth. 275 Va.
510, 520, 659 S.E.2d 331, 317 (2008)). In this case, we find
appellant's failure to comply with Rule 5 A: 12(c)(5) is
significant. As we stated in Fadness v. Fadness. 52
Va.App. 833, 851, 667 S.E.2d 857, 866 (2008),
"[a]ppellate courts are not unlit rooms where
[litigants] may wander blindly about, hoping to stumble upon
a reversible error. If the parties believed that the circuit
court erred, it was their duty to present that error to us
with legal authority to support their contention."
"We will not search the record for errors in order to
interpret the appellant's contention and correct
deficiencies in a brief." Buchanan v. Buchanan.
14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992). Thus, we
consider waived the issues raised in the supplemental
petition for appeal, and we do not consider them.
Herrington v. Commonwealth. R. No. 1945-12-4, slip
op. at 2-3. On January 16, 2014, the Court of Appeals denied
a motion by petitioner to set aside the judgment and grant
rehearing. The Supreme Court of Virginia refused his petition
for a second-tier appeal on September 2, 2014, Herrington
v. Commonwealth. R. No. 140286 (Va. Sept. 2, 2014), and
denied rehearing of that determination on November 6, 2014.
13, 2015, Herrington filed a petition for a state writ of
habeas corpus in the Supreme Court of Virginia, raising the
same claims he makes in this federal proceeding. The petition
was dismissed in a written order which will be discussed in
greater detail infra. Herrington v. Clarke.
R. No. 150943 (Va. Mar. 2, 2016).
then turned to the federal forum and timely filed the instant
application for relief pursuant to §2254 on March 30,
2016,  raising the following claims:
1. Jury instructions were erroneous because they omitted
elements of the offenses.
2. He is actually innocent of failing to file a tax return in
3. The evidence was insufficient to find that he failed to
file a tax return in 2006, and the jury instructions
improperly shifted the burden of proof to require him to
prove his innocence.
4. He is actually innocent of perjury.
5. His waiver of the right to counsel was not valid.
6. He was the victim of prosecutorial vindictiveness in
several respects when the Commonwealth withheld exculpatory
7. His rights to an impartial jury and a fair trial were
violated in several respects.
8. The oral pronouncement of sentence differed from the
sentencing order and was changed after he had exited the
9. The trial court erred in refusing to consider his pro se
post-trial motions and in refusing to give counsel sufficient
time to prepare and be heard on post-trial motions.
10. The trial court erred by refusing to allow him to speak
before sentence was imposed.
11. He was denied his rights to present a full and fair
defense, to present evidence, and to have compulsory process
for obtaining witnesses.
12. He was denied access to the courts because he represented
himself and was not. afforded adequate access to a law
library and legal materials.
13. His convictions are the result of prosecutorial
vindictiveness and misconduct.
14. His convictions were obtained through fraud upon the
15. He received ineffective assistance during post-trial
proceedings and on direct appeal.
9, 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) and Local Rule 7K. (Dkt. No. 8 -11)
Petitioner filed a reply captioned as a Traverse Response on
May 23, 2016. (Dkt. No. 14) On June 10, 2016, he submitted a
Motion to Amend/Correct Response, and the motion was granted
to the extent that the arguments put forth there are deemed a
supplement to the Traverse Response. (Dkt. No. 18)
Accordingly, this matter is now ripe for disposition.
bringing a federal habeas petition, a state prisoner must
first exhaust his claims in the appropriate state court. 28
U.S.C. § 2254(b); Granberry v Greer. 481 U.S.
129 (1987); Rose v. Lundy. 455 U.S. 509 (1982). To
comply with the exhaustion requirement, a petitioner
"must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process." O' Sullivan v. Boerckel. 526 U.S.
838, 845 (1999). Thus, a petitioner convicted in Virginia
first must have presented the same factual and legal claims
raised in his federal habeas corpus application to the
Supreme Court of Virginia on direct appeal or in a state
habeas corpus petition. See, e.g.. Duncan v. Henry.
513 U.S. 364 (1995). In this case, as respondent
acknowledges, petitioner's claims have been exhausted.