United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING RESPONDENT'S MOTION
E. Hudson United States District Judge.
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.
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.)
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
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).)
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
(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
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 ...