United States District Court, E.D. Virginia, Alexandria Division
BRUCE LEE UNITED STATES DISTRICT JUDGE.
Matter comes before the Court on respondent's Motion to
Dismiss a petition for a writ of habeas corpus pursuant to 28
U.S.C. §2254 filed by David Wayne Mixon, a Virginia
inmate proceeding pro se. Mixon challenges the
constitutionality of convictions entered in the Circuit Court
of the City of Williamsburg and James City County.
March 13, 2013, petitioner entered a negotiated plea of
guilty pursuant to North Carolina v. Alford. 400
U.S. 25 (1970) to a charge of sodomy with his minor
stepdaughter. In exchange for the guilty plea, the
Commonwealth moved to nolle prosequi nineteen
additional charges of sexual abuse of the victim.
April 29, 2013, petitioner moved for leave to withdraw the
plea. He testified that he initially had rejected the plea
offer but decided to accept it after his counsel showed him
letters that had been revealed to them by the prosecution
that petitioner had written to the minor victim and her
mother in 2012. Pet. Ex. 4, T. at 25. Counsel discussed the
impact of these letters with petitioner and opined that their
content had compromised petitioner's defense and
substantially increased the risk of going to trial.
Id., T. at 25. After petitioner was presented with
this information he personally decided to accept the plea
offer and to enter a plea of guilty. Id., T. at 25 -
26. The trial court denied the motion to withdraw the plea
after finding that petitioner had failed to meet his burden
to establish that the motion was made in good faith or to
offer any "reasonable defense" in support of the
motion that was not dilatory. Id, T. at 49 - 52, 58.
24, 2013, a final judgment of conviction was entered, and
petitioner was sentenced in accordance with the terms of the
plea agreement to twenty years' imprisonment with six
years suspended. Petitioner sought to appeal his conviction
to the Court of Appeals of Virginia, and a judge of that
court refused the appeal on November 12, 2013. Mixon v.
Commonwealth, R. No. 1088-13-1 (Va. Ct. App. Nov. 12,
2013). A three-judge panel declined further review on March
4, 2014. Mixon then petitioned the Supreme Court of Virginia
for review, and his petition was refused on July 29, 2014.
Mixon v. Commonwealth, R. No. 140501 (Va. July 29,
2014). A subsequent petition for rehearing was denied on
September 19, 2014.
on September 14, 2014, petitioner, through counsel, filed a
petition for a state writ of habeas corpus in the Supreme
Court of Virginia, raising the following claims:
A. Pursuant to Lafler v. Cooper, 132 S.Ct. 1376
(2012), counsel's advice regarding the wisdom of pleading
guilty amounted to ineffective assistance, such that the plea
was not 'constitutionally voluntary and intelligent.'
B. Counsels' pretrial investigation and interview of
witnesses was insufficient to allow them to advise petitioner
in a constitutionally adequate manner, rendering their
assistance ineffective at both the plea hearing and during
the subsequent proceedings on the motion to withdraw the
through counsel, sought to file an amended habeas corpus
petition on April 18, 2016. Respondent objected on the ground
that petitioner's proposed additional claims relied on
facts that were know to him at the time he filed his initial
habeas application, and the Supreme Court of Virginia denied
the motion to amend in an Order dated May 9, 2016. Resp. Ex.
2-3. On July 13, 2016, the Court denied the claims petitioner
raised in his initial habeas petition for reasons which will
be discussed infra. Mixon v. Clarke, R. No. 151394
(Va. July 13, 2016); Resp. Ex. 4. His motion for rehearing
was refused on October 6, 2016.
October 20, 2016, Mixon turned to the federal forum and
timely filed the instant application for relief pursuant to
§2254, in which he raises the following claims:
A. His plea was not made voluntarily and intelligently
because counsel failed to "obtain information to
competently advise [petitioner] on the strength of the case
against him or the strength of his defense."
B. Counsel failed to prepare for or to advocate properly on
his behalf at the plea hearing and the proceedings on the
motion to withdraw the plea.
C. Counsel's failure to inquire into viable defenses
amounted to ineffective assistance, and petitioner was
prejudiced by counsel's failure to prepare, to advise him
properly, and to advocate on his behalf at the plea hearing
and the proceedings on the motion to withdraw the plea.
filed a Motion to Dismiss the petition along with a
supporting brief on December 8, 2016, and provided petitioner
with the notice required by Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. (Dkt. No.
8-10) Petitioner filed a reply on January 4, 2017 (Dkt. No.
13) and an amended reply on January 23, 2017. (Dkt. No. 16)
Accordingly, this matter is now ripe for disposition.
Exhaustion and Procedural Bar
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).
claim that has not been presented to the highest state court
nevertheless may be treated as exhausted if it is clear that
the claim would be procedurally barred under state law if the
petitioner attempted to present it to the state court."
Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir.
2000). "The procedural bar that gives rise to exhaustion
provides an independent and adequate state-law ground for the
conviction and sentence, and thus prevents federal habeas
review of the defaulted claim." Id. at 288
(citing Gray v. Netherland, 518 U.S. 152, 161
(1996)). Thus, an unexhausted claim that would be defaulted
if presented in state court is deemed to be simultaneously
exhausted and procedurally barred from federal review.
Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990).
to the extent that petitioner attempts to rely on facts and
arguments that he raised for the first time in his
unsuccessful Motion to Amend his state habeas application,
his claims are both unexhausted and procedurally defaulted.
Because petitioner's Motion to Amend was denied, the
Supreme Court of Virginia never considered those aspects of
his claims, and they consequently are unexhausted. Resp. Ex.
2-3. Further, were petitioner now to attempt to return to the
state forum with those arguments, they would be defaulted
pursuant to both Va. Code § 8.01-654(A)(2), which
prescribes a limitations period for Virginia applications for
habeas corpus relief, and § 8.01-654(B)(2), which
precludes consideration of a habeas claim known to, but not
raised by, a petitioner at the time he filed his initial
application. Both of these state procedural rules have been
held repeatedly to constitute "independent and
adequate" bases for the procedural default of habeas
claims. See, e.g., Sparrow v. Dir., Dep't of
Corrections, 439 F.Supp.2d 584, 587 (E. D. Va. 2006)
(finding the limitations period of Va. Code
§8.01-654(A)(2) to be adequate and independent);
Mackall v. Angelone, 131 F.3d 442, 446 (4th Cir.
1997) (determining procedural bar of successive habeas
applications in Va. Code §8.01-654(B)(2) to be a
well-recognized adequate and independent ground).
Accordingly, to the extent that petitioner seeks to rely here
on the arguments and evidence he attempted to introduce into
the state habeas proceeding in his Motion to Amend the
initial petition, those aspects of his claims are
simultaneously exhausted and procedurally barred. See
Coleman v. Thompson. 501 U.S. 722, 729-30 (1991).
Standard of Review
state court has addressed the merits of a claim raised in a
federal habeas petition, a federal court may not grant the
petition based on the claim unless the state court's
adjudication is contrary to, or an unreasonable application
of, clearly established federal law, or based on an
unreasonable determination of the facts. 28 U.S.C. §
2254(d). Whether a state court decision is "contrary
to" or "an unreasonable application of federal law
requires an independent review of each standard. See
Williams v. Tavlor,529 U.S. 362. 412-13 (2000). A state
court's determination runs afoul of the "contrary
to" standard if it "arrives at a conclusion
opposite to that reached by [the United States Supreme] Court
on a question of law or if the state court decides a case
differently than [the United States Supreme] Court has on a
set of materially indistinguishable facts." 14 at 413.
Under the "unreasonable application" clause, the
writ should be granted if the federal court finds that the
state court "identifies the correct governing legal
principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case." Id. This standard
"recognizes a foundational principle of our federal
system: State courts are adequate forums for the vindication
of federal rights." Burt v. Titlow, __U.S.__,
134 S.Ct. 10, 15 (2013). As a result, "[t]he focus of
federal court review is now on the state court decision that
previously addressed the claims rather than the
petitioner's free-standing claims themselves."
McLee v. Angelone,967 F.Supp. 152, 156 (E.D. Va.
1997), appeal dismissed. 139 F.3d 891 (4th Cir.
1998) (table). The Supreme Court has recognized that the
§ 2254(d) standard of review "erects a formidable
barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court" because it
requires "a state prisoner [to] show that the state