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Grinnell v. Hester

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

October 20, 2017

Donald Lee Grinnell, Petitioner,
v.
Carl K. Hester, Respondent.

          MEMORANDUM OPINION

         Donald Lee Grinnell, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of three counts of breaking and entering with intent to commit larceny entered on a plea of guilty in the Circuit Court for Mathews County. On March 22, 2017, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. (Dkt. No. 13-16) Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and he filed a reply on April 10, 2017. (Dkt. No. 18) Accordingly, this matter is ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

         I. Background

         At a hearing on January 28, 2015, Grinnell entered a negotiated plea of guilty to three counts of breaking and entering with the intent to commit larceny. Case Nos. CR14000074, CR14000078, CR14000085. In exchange, the Commonwealth nolle prosequied six additional charges of grand larceny, petit larceny, commission of larceny with the intent to sell, and possession of heroin. Resp. Ex. 2. On May 27, 2015, Grinnell received an aggregate sentence of sixty years in prison with fifty years suspended. Resp. Ex. 1.

         On May 4, 2016, Grinnell filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, asserting the following claims:

1. He received ineffective assistance when counsel advised him not to ask the prosecutor to remove himself from the case.
2. He received ineffective assistance when counsel failed to show him a letter from the Virginia Bar which demonstrated that the prosecutor had a conflict of interest.
3. Counsel provided ineffective assistance by misinforming him about penalty offers in plea agreements.
4. Counsel provided ineffective assistance by misinforming him of the amount of time he would serve pursuant to the agreement.
5. He received ineffective assistance when counsel failed to present the valid defense of "irresistible impulse" because he was on drugs when he committed the crimes.
6. The trial court committed plain error by failing to investigate and consider the effect of petitioner's drug use on his mental competency when he committed the crimes.
7. The trial court committed plain error when it allowed petitioner's probation officer to testify at sentencing.
8. The trial court committed plain error by allowing a prosecutor who was related to two of the victims to handle the case.

         The Supreme Court of Virginia dismissed the petition. Grinnell v. Hester. R. No.1115653 (Va. Oct. 20, 2016); Resp. Ex. 5. Specifically, it rejected claims 1, 3, 4 and 5 because Grinnell had failed to offer a valid reason why he should not be bound by his representation at the plea colloquy that he was satisfied with the services of his attorney. It found that claim 2 was without merit, and it determined that claims 6, 7 and 8 were barred by the rule enunciated in Slavton v. Parrigan. 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974) (holding that a claim is procedurally defaulted if the petitioner could have raised it on direct appeal but did not).

         Grinnell then turned to the federal forum and timely filed this application for §2254 relief on November 3, 2016. He makes the following claims:

1. The trial court made statements that revealed it was prejudiced, and that prejudice violated his right to a fair trial and resulted in an unfair sentencing hearing.
2. The trial court allowed the admission of unfair evidence.
3. The prosecutor had a conflict of interest in two of the cases.
4. He received ineffective assistance of counsel because his ...

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