United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
Roderick C. Young United States Magistrate Judge.
Alexander McKay, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 (ECF No. I). The matter is before the Court for a
Report and Recommendation pursuant to 28 U.S.C. §
636(b). Respondent has moved to dismiss. (ECF No. 10.) McKay
has replied. (ECF No. 16.) For the reason set forth below, it
is RECOMMENDED that the Motion to Dismiss be GRANTED.
demands relief upon the following grounds:
One: "Judicial Misconduct." (§ 2254 Pet. 5.)
Two: "Prosecutorial Misconduct." (Id. at
Three: "Ineffective Assistance of Counsel."
(Id. at 7.)
does not supply facts in support of the above claims, but
instead directs the Court to "see attached
Memorandum." (See, e.g., id.) In the attached
Memorandum (ECF No. 1, at 11-21), McKay fails to supply any
supporting facts for Claims One and Two.
federal court may only grant a petition for a writ of habeas
corpus if the petitioner can show that "he is in custody
in violation of the Constitution...." 28 U.S.C. §
2254(a). A petition for a writ of habeas corpus must specify
the grounds for relief. Rules Governing Section 2254 Cases,
Rule 2(c). The petition must also state, under penalty of
perjury, the facts that support each ground for relief.
Id. The petitioner must make specific factual
allegations in the petition that would entitle him to habeas
corpus relief if they are true. Jones v. Polk, 401
F.3d 257, 269 (4th Cir. 2005); see Adams v.
Armontrout, 897 F.2d 332, 333-34 (8th Cir. 1990).
McKay's conclusory claims of judicial and prosecutorial
misconduct are subject to summary dismissal. See Sanders
v. United States, 373 U.S. 1, 19 (1963) (finding denial
of § 2255 motion appropriate where it "stated only
bald legal conclusions with no supporting factual
allegations")-Accordingly, it is RECOMMENDED that Claims
One and Two be DISMISSED.
Claim Three, McKay contends that he was denied the effective
assistance of counsel when his counsel, David W. Cassidy,
"failed to communicate a plea offer from the
prosecution." (ECF No. 1, at 17.) Further, review of
McKay's habeas submissions reflect that McKay does not
assert that Cassidy totally failed to communicate the
prosecution's plea offer, but that Cassidy failed to
somehow accurately convey the prosecution's plea offer:
Petitioner argues that the proposed plea, offered by the
prosecution, was emailed to . .. Cassidy advising him that
the petitioner could (i) plead to Burglary and [the
prosecution would] merge the GL (Grand Larceny) into that;
(ii) [the prosecution would] not object to [petitioner] being
screened for programs and will not object to him being sent
to the Behavior Modification Program if he qualifies; and
(iii) [the prosecution would] also cap [petitioner's]
sentence at the high end of the guidelines.
However, Cassidy, not the petitioner, rejected the proposed
plea based on the miscalculated guidelines. Additionally, the
record is clear that Cassidy had never shown petitioner the
proposed plea offer in person, but would only advise him of
the miscalculations by phone. The plea had a fixed expiration
date noting that the "[prosecution would] need to know
an answer for this by Friday at 4 PM."
(ECF No. 1, at 17-18 (footnote omitted) (alterations in
original).) As explained more fully below, McKay fails to
demonstrate that Cassidy inaccurately conveyed the substance
of the plea offer and fails to demonstrate that he was
willing to accept the plea offer at the time the offer was
available. Thus, it is RECOMMENDED that Claim Three be
DISMISSED because McKay fails to demonstrate deficiency of
counsel or resulting prejudice.
Applicable Constraints Upon Federal Habeas Review
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 of 1996 ("AEDPA") further
circumscribes 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:
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; or
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.
Landrigan, 550 U.S. 465, 473 (2007) (citing Williams
v. Taylor, 529 U.S. 362, 410 (2000)).
Trial and Direct Appeal
was convicted of statutory burglary and grand larceny for the
theft of a safe in the Circuit Court for the City of Suffolk
("Circuit Court") and sentenced to twenty years of
imprisonment. See McKay v. Commonwealth, No.
2185-11-1, at 1 (Va. Ct. App. May 9, 2012). On appeal, McKay
did "not contest that he stole the safe. Instead, he
argue[d] he 'entered with permission and within the scope
of his employment and there was no breaking or illegal
entry.'" Id. at 2. ...