United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga, United States District Judge
Javon Allen, Sr., 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
convictions entered in the Circuit Court of Newport News.
Case Nos. CR12-1340 through -1351, CR12-1542, CR12-1544,
CR12-1546, CR12-1547. Before the Court is the
respondent's Motion to Dismiss the petition.
November 19, 2014, following a jury trial, Allen was found
guilty of eluding the police, aggravated maiming, robbery,
attempted robbery, conspiracy to commit robbery, burglary
while armed with a deadly weapon, three counts of abduction,
and seven counts of unlawful use of a firearm. He was
sentenced to serve 133 years in prison.
pursued a direct appeal before the Court of Appeals of
Virginia, raising the following claims:
I. The trial court erred in denying his motion to strike
fifteen of the counts against him where there was reasonable
doubt that he committed the offenses.
II. The trial court erred in denying his motion to set aside
the verdict where there was reason to believe the prosecutor
had an impermissible ex parte contact with the
III. The trial court erred in denying his motion to dismiss
all charges where his waiver of his right to counsel in the
general district court was improperly disregarded.
petition for appeal was denied in aper curium order
on September 8, 2015. Allen v. Commonwealth, R. No.
0093-15-1 (Sept. 8, 2015); Resp. Ex. 1. On November 10, 2015,
petitioner's request for review by a three-judge panel
was denied. Id. Petitioner sought further review by
the Supreme Court of Virginia, and his petition for appeal
was refused on July 14, 2016. Allen v. Commonwealth,
R. No. 151742 (Va. July 14, 2016); Resp. Ex. 2.
on November 30, 2015, Allen filed a petition for a state writ
of habeas corpus in the Supreme Court of Virginia, raising
the following claims:
A. His right to a speedy trial was violated.
B. He was denied his right to waive counsel and to represent
C. The jury was tainted when the victim blurted out that
petitioner had written to him from jail and offered to pay
D. The trial court erred in failing to dismiss the
indictments when the prosecutor failed timely to comply with
discovery and inspection.
E. The trial court erred in failing to dismiss the
indictments because his identification was invalid.
Resp. Ex. 3.
February 8, 2016, the Supreme Court of Virginia ordered that
the petition be dismissed. Specifically, it determined that
the portion of claim (1) where petitioner alleged that he was
denied the right to represent himself was barred because that
issue had been raised and decided on direct appeal and could
not be re-asserted in a habeas corpus petition. The Court
further found that Allen's remaining claims were
non-jurisdictional and could have been raised at trial and on
direct appeal and therefore were not cognizable in habeas
corpus pursuant to Slayton v. Parrigan, 215 Va. 27,
205 S.E.2d 680 (1974). Allen v. Commonwealth, R. No.
151837 (Va. Feb. 8, 2016); Resp. Ex. 4.
September, 2016, Allen filed a habeas corpus petition in the
state trial court. In an Order entered on December 5, 2016,
the petition was dismissed as successive pursuant to Va. Code
§ 8.01-654(B)(2), which bars consideration of all claims
known to a petitioner at the time he filed his first
application for habeas relief. Resp. Ex. 5. Respondent
reports that Allen noticed an appeal of that Order to the
Supreme Court of Virginia, Resp. Brief at 3, but independent
research at the Case Status and Information website of the
Supreme Court of Virginia failed to locate such an appeal.
then turned to the federal forum and timely filed the instant
petition for relief pursuant to § 2254 on February 2,
2017,  raising the following claims:
1. The identification was overly and impermissibly
2. He was denied his right to waive counsel and to represent