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Uzzle v. Fleming

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

August 15, 2017

Brian Keith Uzzle, Petitioner,
v.
Lesley Fleming, Respondent.[1]

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT JUDGE

         Brian Keith Uzzle, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging his conviction of murder and use of a firearm in the commission of a murder following a jury trial in the Chesterfield County Circuit Court. For the reasons which follow, respondent's Motion to Dismiss the petition will be granted.

         I. Background

         The Court of Appeals of Virginia described the facts underlying petitioner's convictions as follow:

[T]he evidence proved that on the evening of August 28, 2011, Michael Flowers and Artemus Taylor saw Montique Fitzgerald in the neighborhood. Flowers, Taylor and Fitzgerald went to Flowers' house. Gerald Everett joined them in the backyard of Flowers' house. The four of them were talking, and some were drinking. Appellant, who lived behind Flowers, and Mike Pope walked over to Flowers' house. Appellant greeted everybody. Fitzgerald was on the steps and came down to speak with appellant. Appellant and Fitzgerald started arguing about a telephone conversation. According to one witness, "[t]hey were kind of squared off, " but neither hit nor swung at each other. Appellant backed up and pulled a gun from his waistband. He first fired at the ground. Then, he shot Fitzgerald four times, got on top of him, and hit him on his head with the gun. Appellant said to the others, "Don't tell them, " and ran from the scene.

Uzzle v. Commonwealth, R. No. 2246-12-2 (Va. Ct. App. June 13, 2013), slip op. at 6-7; Pet. Art. 13.[2]

         Uzzle was tried to a jury in May, 2012, and was convicted of the offenses he challenges here. He was sentenced to serve a total of thirty years in prison. Id., slip op. at 1.

         Uzzle filed a direct appeal of the convictions and raised the following claims:

1. The trial court erred in admitting tainted eyewitness identification testimony that was obtained under impermissibly suggestive circumstances and carried a substantial likelihood of misidentification.
2. The trial court erred by refusing to grant a cautionary instruction on the issue of eyewitness identification testimony obtained under suggestive circumstances.
3. The trial court erred by refusing to grant a cautionary instruction on cross-racial eyewitness identification.
4. There was insufficient evidence to prove his identity as the person who committed the crimes.
5. There was insufficient evidence to prove first-degree murder because it did not establish that the killing was willful, premeditated and deliberate.
6. His statutory right to a speedy trial was violated.
7. His constitutional right to a speedy trial was violated.
8. The trial court abused its discretion by granting the Commonwealth's motion to nolle prosequi the charges because it was done without good cause and to avoid a speedy trial claim.
9. The trial court erred in not allowing petitioner to cross-examine Flowers about his involvement in a controlled drug buy.
10. The trial court erred in denying him a new trial when he was deprived of a meaningful opportunity to correct the trial transcript.

         A single judge of the Court of Appeals denied Uzzle's petition for appeal on June 13, 2013. Id. A three-judge panel of that Court also refused the appeal on August 26, 2013. The Supreme Court of Virginia refused further review on March 31, 2014, Uzzle v. Commonwealth, R. No, 131630 (Va. Mar. 31, 2014), and denied petitioner's motion for rehearing of that decision on June 13, 2014.

         On June 8, 2015, Uzzle timely filed a pro se petition for a state writ of habeas corpus, in which he made the following claims:

1. His rights under the Fourteenth Amendment and Va. Code § 18.2-32 were violated because the evidence was insufficient to prove first degree murder.
2. He was denied due process when the trial court refused him a meaningful opportunity to correct his trial transcript due to the destruction of the court reporter's original shorthand notes and audio recordings.
3. He was denied his rights to due process and a fair and impartial jury when the trial court refused to dismiss or properly question a juror about bias after the juror disclosed that his wife worked with one of the Commonwealth's witnesses.
4. He was denied due process when the court admitted evidence regarding an unduly suggestive identification.
5. Counsel provided ineffective assistance by:
a. failing to move to suppress or to challenge the chain of custody of the Newport cigarette butt;
b. failing to inspect the cigarette butt;
c. failing to properly cross-examine the forensics investigator about the cigarette butt;
d. failing to object to demonstrative photographs use during a firearms analyst's testimony;
e. failing to include law and authority in the motion to correct the trial transcript;
f. failing to request an expert witness as to eyewitness identification testimony;
g. failing to file a timely discovery motion;
h. failing to review and submit police recordings;
i. failing to move for a mistrial or to properly cross-examine the lead detective;
j. failing to object to false and misleading statements during the prosecutor's closing argument;
k. failing to object to questions by the prosecutor about a text message;
1. failing to object to the prosecutor's cross-examination of the petitioner regarding his prior convictions or to inform petitioner of his rights under Va. Code § 19.1-269;
m. failing to question and strike a juror whose wife worked with a Commonwealth witness; and
o. failing to argue prej udice in the speedy trial motion and its appeal.
6. He was the victim of prosecutorial conduct where:
a. the prosecutor referred to the crime as an execution and the petitioner as an executioner;
b. the prosecutor made false statements in his argument;
c. the prosecutor improperly questioned petitioner regarding his prior drug sales;
d. the prosecutor cross-examined petitioner regarding a text message without offering the text or the phone into evidence;
e. the prosecutor argued that petitioner murdered the victim to settle a score; and
f. the prosecution "let [the] trial proceed" after a juror said his wife worked with a witness without questioning the juror regarding bias when instead the "prosecution should have declare[d] a mistrial."
7. The court abused its discretion by granting the Commonwealth's motion to nolle prosequi the original charges.
8. He was denied his statutory and constitutional rights to a speedy trial.
9. He was denied his Sixth Amendment right to cross examine a witness against him.

         On March 1, 2016, the Supreme Court of Virginia granted the Commonwealth's motion to dismiss petitioner's habeas corpus application. Uzzle v. Fleming, R. No. 150889 (Va. Mar. 1, 2016); Resp. Ex. A.

         Petitioner then turned to the federal forum and timely filed this application for habeas corpus relief pursuant to § 2254 on April 15, 2016.[3] In it, he raises an amalgamation of the claims he previously presented to the Supreme Court of Virginia on direct appeal and in his state habeas proceeding, as follow:

1. His right to due process was violated because there was insufficient evidence to prove first-degree murder because it did not establish that the killing was willful, premeditated and deliberate.
2. His constitutional right to a speedy trial was violated when the Commonwealth nolle prossed the original indictments and reindicted him while he remained jailed;
3. His right to a speedy trial as guaranteed by Va. Code § 19.2-243 was violated;
4. His Sixth Amendment right to confrontation was violated when he was not allowed to cross-examine Michael Flowers about his involvement in a controlled drug buy.
5. He received ineffective assistance of counsel for the same 15 reasons enumerated in his state habeas corpus petition.
6. He was the victim of prosecutorial misconduct for 5 of the reasons enumerated in his state habeas corpus petition.
7. His right to due process was violated when the trial court erred in refusing to grant him a new trial when he was deprived of a meaningful opportunity to correct the trial transcript.
8. His right to due process was violated when the trial court admitted tainted eyewitness identification testimony that was obtained under impermissibly suggestive circumstances and carried a substantial likelihood of misidentification.
9. He was denied his rights to due process and a fair and impartial jury when the trial court refused to dismiss or properly question a juror about bias after the juror disclosed that his wife worked with one of the Commonwealth's witnesses.

         On October 31, 2016, respondent filed a Motion to Dismiss the petition, along with a Motion for Leave to File Excess Pages and a supporting brief and exhibits. [Dkt. No. 10-13] Respondent provided Uzzle with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(J) [Dkt. No. 14], and after receiving an extension of time Uzzle filed his opposition on December 28, 2016. [Dkt. No. 21] Accordingly, this matter is now ripe for disposition.

         II. ...


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