United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
Roderick C. Young United States Magistrate Judge.
Lavelle Pork ("Pork"), a Virginia inmate proceeding
pro se and in forma pauperis, filed this
petition for habeas corpus under 28 U.S.C. § 2254
("§ 2254 Petition, " ECF No. I). Respondent has
moved to dismiss the action. (ECF No. 13.) The matter is
before the Court for a Report and Recommendation pursuant to
28 U.S.C. § 636(b). For the reasons that follow, it is
RECOMMENDED that the § 2254 Petition be DISMISSED.
Current Claims for Relief
§ 2254 Petition, Pork demands relief upon the following
Claim 1 Pork failed to receive the effective assistance of
counsel when the Court of Appeals of Virginia dismissed a
portion of his petition for appeal for failure to comply with
Va. Sup. Ct. R. 5:17(c)(1)(iii). (§ 2254 Pet. 5.)
Claim 2 "Illegal Terry stop in violation of the 4th
Amendment. Officer conducted a Terry stop on me
based upon an anonymous tip that did not have any indicia of
reliability or predictive information." (Id. at
Claim 3 "Unlawful seizure in violation of the 4th
Amendment. The initial encounter with the officer
transitioned into a seizure with the arrival of multiple
officers who positioned themselves around my vehicle."
(Id. at 8.)
Claim 4 "Unlawful search in violation of the 4th
Amendment. The officer unlawfully searched my vehicle because
he did not have on record at my suppression hearing any
testimony that he believed I was dangerous or may gain access
to a weapon." (Id. at 10.)
explained below, Claim 1 lacks merit and Claims 2, 3, and 4
fail to provide a viable basis for federal habeas relief.
Applicable Constraints upon Collateral Review
order to obtain federal habeas relief, at a minimum, a
petitioner must demonstrate that he is "in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996 further circumscribed this
Court's authority to grant relief by way of a writ of
habeas corpus. Specifically, ''[s]tate court factual
determinations are presumed to be correct and may be rebutted
only by clear and convincing evidence." Gray v.
Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28
U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C.
§ 2254(d), a federal court may not grant a writ of
habeas corpus based on any claim that was adjudicated on the
merits in state court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has emphasized
that the question "is not whether a federal court
believes the state court's determination was incorrect
but whether that determination was unreasonable-a
substantially higher threshold." Schriro v.
Lcmdrigan, 550 U.S. 465, 473 (2007) (citing Williams
v. Taylor, 529 U.S. 362, 410 (2000)). Given the
foregoing restraints, the findings of the Virginia courts in
rejecting Claim 1 Figures prominently in this Court's
Alleged Ineffective ...