United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young, United States Magistrate Judge
Lee Washington, Jr., a Virginia inmate proceeding pro
se and in forma pauperis, filed this
petition for a writ of habeas corpus under 28 U.S.C. §
2254 ("§ 2254 Petition, " ECF No. 1)
challenging his drug distribution convictions in the Circuit
Court for the County of Amelia, Virginia ("Circuit
Court"). Washington lists one "GROUND" in his
§ 2254 Petition that is comprised of one long paragraph
with no subparts. The Court generously construes Washington
to argue entitlement to relief upon the following
Claim One: Counsel rendered ineffective assistance by failing
to challenge Washington's "mental health status at
the time of the alleged sales of a controlled
substance." (§ 2254 Pet. 3.)
Claim Two: Counsel rendered ineffective assistance by failing
to request an "evaluation regarding [Washington's]
competency to plead guilty to the controlled substance
Claim Three: Washington's "plea of guilty was
invalid because he was unaware of the consequences of his
plea" and he had a "mental deficiency."
(Id. at 4.)
Claim Four: Counsel rendered ineffective assistance because
he "provided incorrect advice pertinent to the
Claim Five: Counsel rendered ineffective assistance by
failing to "call experts on the issue of diminished
capacity [that] ostensibly deprived the defendant of his only
apparent defense." (Id.)
Claim Six: Counsel rendered ineffective assistance when he
failed to "put up a debate" about whether
Washington's sentences could run concurrently.
Claim Seven: The Circuit Court erred by giving him an
"excessive" sentence. (Id.)
Claim Eight: Counsel rendered ineffective assistance when he
failed to argue that Washington could have been sentenced to
serve his "last three years ... in a diversion and
detention center." (Id.)
Claim Nine: The Circuit Court erred in finding Washington was
a second or subsequent offender. (Id.)
Claim Ten: The prosecutor engaged in misconduct when he
indicated that Washington had the ability to serve time in a
"Diversion Center and Detention Center."
(Id. at 5.)
moves to dismiss the § 2254 Petition. Despite
Respondent's provision of Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) notice, Washington has not
responded. For the reasons explained below, the Motion to
Dismiss (ECF No. 16) will be GRANTED.
PROCEDURAL AND FACTUAL HISTORY
jury charged Washington with four counts of distribution of
Schedule I or II controlled drugs, second or subsequent
offense, and one count of sale of Schedule I or II controlled
drugs on or near a school or library. (ECF No. 18-2, at 1.)
On December 23, 2014, Washington pled guilty to three counts
of distribution of Schedule I or II controlled drugs, second
or subsequent offense, and one count of sale of Schedule I or
II controlled drugs on or near a school or library, and the
Commonwealth agreed to nolle prosequi the one
remaining drug distribution charge. (ECF No. 18-1, at 1-4.)
The Circuit Court sentenced Washington to an active sentence
of nine years of incarceration. (ECF No. 18-3, at 3.)
Washington filed no direct appeal.
October 15, 2015, Washington filed a petition for a writ of
habeas corpus in the Supreme Court of Virginia. (ECF No.
18-5, at 1.) In his state petition, Washington raised the
following claims for relief with little to no supporting
a. I was not sentenced by my mental health condition.
b. I am a drug addict [and] I didn't get sentenced by
mental health or drug addiction and I didn't get no help
c. My lawyer didn't present my health issue in court but
said the courts have my health file in court.
d. I am on file previously for mental health in department of
correctionals medical file.
e. I was sentenced to 9 years on 3 charges of distribution of
cocaine by the same informant all sales was made in 2 months
span the punishment is harsh rather and cruel and unusual[.]
All sales to one person one informant why no plea deal and
the cocaine was small sales.
(ECF No. 18-5, at 3-4.)" On May 9, 2016, the Supreme Court
of Virginia dismissed Washington's habeas petition. (ECF
No. 18-6, at 1-2.)
EXHAUSTION AND PROCEDURAL DEFAULT
a state prisoner can bring a § 2254 petition in federal
district court, the prisoner must first have "exhausted
the remedies available in the courts of the State." 28
U.S.C. § 2254(b)(1)(A). State exhaustion '"is
rooted in considerations of federal-state comity, '"
and in Congressional determination via federal habeas laws
"that exhaustion of adequate state remedies will
'best serve the policies of federalism.'"
Siavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va.
2005) (quoting Preiser v. Rodriguez, 411 U.S. 475,
491-92 & n. 10 (1973)). The purpose of exhaustion is
"to give the State an initial opportunity to pass upon
and correct alleged violations of its prisoners' federal
rights." Picard v. Connor, 404 U.S. 270, 275
(1971) (internal quotation marks omitted). Exhaustion has two
aspects. First, a petitioner must utilize all available state
remedies before he can apply for federal habeas relief.
See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48
(1999). As to whether a petitioner has used all available
state remedies, the statute notes that a habeas petitioner
"shall not be deemed to have exhausted the remedies
available in the courts of the State... if he has the right
under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. §
second aspect of exhaustion requires a petitioner to have
offered the state courts an adequate
'•'opportunity'" to address the
constitutional claims advanced on federal habeas. Baldwin
v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.
Henry, 513 U.S. 364, 365-66 (1995)). "To provide
the State with the necessary 'opportunity, ' the
prisoner must 'fairly present' his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim." Id. Fair
presentation demands that a petitioner present
"'both the operative facts and the controlling legal
principles'" to the state court. Longworth v.
Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting
Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir.
2000)). The burden of proving that a claim has been exhausted
in accordance with a "state's chosen procedural
scheme" lies with the petitioner. Mallory v.
Smith, 27 F.3d 991, 994, 995 (4th Cir. 1994).
distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default."
Breardv. Pruett,134 F.3d 615, 619 (4th Cir. 1998).
This doctrine provides that "[i]f a state court clearly
and expressly bases its dismissal of a habeas
petitioner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim." Id.
(citing Coleman v. Thompson,501 U.S. 722, 731-32
(1991)). A federal habeas petitioner also procedurally
defaults claims when he or she "fails to exhaust
available state remedies and 'the court to which the
petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims
procedurally barred.'" Id. (quoting
Coleman, 501 U.S. at 735 n.l). The burden of
pleading and proving that a claim is procedurally defaulted
rests with the state. Jones v. Sussex I State