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Farthing v. Beale

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

July 7, 2017

SEAUN LLWELLYN FARTHING, Petitioner,
v.
JAMES V. BEALE, Respondent.

          MEMORANDUM OPINION (GRANTING RESPONDENT'S MOTION TO DISMISS)

          Henry E. Hudson United States District Judge.

         Seaun Llwellyn Farthing, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his convictions in the Circuit Court of the City of Newport News, Virginia ("Circuit Court"). Respondent has moved to dismiss. (ECF No. 12.) Farthing has responded. (ECF No. 16.) For the reasons that follow, the Motion to Dismiss will be granted.

         I. PROCEDURAL HISTORY

         Farthing was indicted and, following a bench trial, convicted of one count of attempted breaking and entering, one count of attempted malicious wounding, two counts of use of a firearm in commission of a felony, one count of maliciously discharging a firearm in an occupied dwelling, one count of possession of a firearm by a felon, and one misdemeanor count of brandishing a firearm. (ECF No. 14-3, at 2, 4.)

         The Court of Appeals of Virginia aptly summarized the evidence of Farthing's guilt as follows:

[T]he evidence presented at trial established that Carl Warner arrived at a boarding house where he lived on the third floor. Upon entering the house, Warner stopped briefly on the second floor and spoke with Ramona White, until White's boyfriend, appellant, arrived shortly thereafter. Warner then proceeded to his room on the third floor.
"Not long [there]after" Warner heard "loud noises" as well as someone screaming. He also heard "someone coming up the steps, asking, 'Where is she at?'" Warner walked toward his door in order to look into the hallway. As he reached for his door, Walker described the door as imploding in on him. "The top hinge came off and the door sort of came into . .. [his] body. At that time[, ] [Warner] saw [appellant] point a weapon at [him] ... a big silver gun." As Warner attempted to shut the door, he heard the gun discharge. He described it as "almost simultaneously as [he] reached for the knob." Warner shouted to appellant from behind the door that he was going to call the police; as Warner dialed 911, he heard "a person run down the steps . ..." Warner hid in his room until the police arrived.
Warner testified during appellant's trial, as described above. Warner reiterated that it was appellant who pointed a gun in Warner's face. Warner had observed appellant at the boarding house on previous occasions and was "able to recognize [appellant]" during the incident. Warner "ha[d] no doubt in [his] mind" and was "positive" in his identification of appellant.
Another resident of the boarding house, Larry Johnson, also testified for the Commonwealth. Johnson testified that he was in his room on the second floor of the boarding house when White "came and asked to use [his] phone." While White was using his phone, Johnson observed appellant approach White and begin hitting her in the face and head. Johnson tried to pull appellant off White but stopped when he saw that appellant had a gun. Johnson then returned to his room. After "it got quiet, " Johnson "looked back out in the hallway, and [he saw appellant] was laying [on the floor] in front of [White's] door." Appellant appeared to be sleeping or passed out. "Everything was quiet" for the next "twenty to thirty minutes, " when Johnson described hearing a noise like "maybe somebody [falling]." Warner later came down the steps to the second floor and Johnson learned that Warner's door had been kicked in.
Officer Andrew Amarillo testified that he was dispatched in response to Warner's 911 call. He described approaching Warner's room and finding "[t]he door [to Warner's room] was actually off its hinges." Officer Amarillo "had to force the door open to make contact with" Warner. After securing the scene and making contact with Warner, Officer Amarillo "locate[d] one [shell] casing right in front of the door [to Warner's room]." "There [was] a hole in the doorknob . . .just above the doorknob [with a bullet lodged in it], and there [was] a break in the ... doorknob."
White testified on behalf of the appellant. She denied that appellant was at the boarding house on the day in question. Rather, she testified that she received a visit on that day from an individual named George Blackwell. White denied having a confrontation or fight with Blackwell. Asked during cross-examination if she had approached Warner or Johnson after the incident and had asked them to recant their testimony, White denied having done so.
Appellant testified on his own behalf. He denied being at the boarding house during the day in question. He also denied owning a firearm. He admitted that he had two prior felony convictions.
Following appellant's testimony, the Commonwealth recalled Warner and Johnson as rebuttal witnesses. Warner testified that White approached him after the incident, apologizing for appellant's behavior and explaining that appellant "had been drinking and smoking" on the day in question. Johnson testified he was also approached by White, who asked that Johnson not testify.

(Id. at 1-3 (alterations in original).)

         Following an unsuccessful direct appeal and state petition for a writ of habeas corpus, Farthing filed this instant § 2254 Petition. Farthing demands relief upon the following grounds:

Claim 1 (a) Commonwealth witness Carl Warner committed perjury.
(b) Commonwealth witness Larry Johnson committed perjury and testified to matters unrelated to the charged offenses.
(c) Trial counsel was ineffective for failing to impeach Warner and Johnson about their perjured testimony and preserve the issue for appeal.
(d) Trial counsel failed to file a motion for discovery to obtain information about the Commonwealth's witnesses and the scene of the crime that would have been favorable to the accused.
Claim 2 Counsel was ineffective for failing to move to sever the charge of possession of a firearm by a convicted felon.
Claim 3 Counsel was ineffective for failing to argue that a rented room inside a boarding house is not a dwelling house for purpose of proving burglary.
Claim 4 Counsel was ineffective for failing to argue that attempted burglary with intent to commit assault and battery is a lesser included offense of attempted ...

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