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Lowe v. Commonwealth

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

January 22, 2018

MARK LOWE, Petitioner,
v.
COMMONWEALTH OF VIRGINIA, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young, United States Magistrate Judge

         Mark Lowe, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his conviction in the Circuit Court of the County of Chesterfield, Virginia (hereinafter, "Circuit Court"). In his § 2254 Petition, Lowe argues entitlement to relief based upon the following claims:[1]

Claim One: "Whether the imposition of a RACC stun belt with secret instructions to compel testimony, alter testimony and remain silent during trial infringed upon and/or violated the Petitioner's rights under the 4th, 5th, 6th, 8th and 14th amendments." (§ 2254 Pet. 6.)
Claim Two: "Whether the trial court violated the Petitioner's rights by unnecessarily forcing him to wear a stun belt during trial . . . ." (Id. at 7.)
Claim Three: "Whether the suppression of exculpatory evidence upon request violates due process" (Id. at 9.)
Claim Four: "Whether the record is complete without a reason for using restraints, the identification of restraints used, instructions to the . . . ." (Id. at 11.)
Claim Five: "Whether the closing statements by the prosecution were improper conduct and a reversible error." (Id. at 12.)
Claim Six: "Whether the Commonwealth secretly compelled the release of a court ordered psychiatric examination." (Id. at 13.)
Claim Seven: "The Commonwealth had denied Petitioner access to the court." (Id. at 14.)
Claim Eight: "Whether the court denied the right to assistance of counsel for the defense during all proceedings." (Id. at 15.)
Claim Nine: "Whether the Petition for Writ of Habeas Corpus was denied without receiving new evidence into the record and/or timely filing a proper response from the Commonwealth's Attorney." (Id. at 16.)

         Respondent moves to dismiss on the ground that Claims One through Eight are procedurally defaulted and barred from review here, and that Claim Nine is not cognizable in federal habeas. Lowe has responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 18) will be GRANTED.

         I. PROCEDURAL HISTORY

         After a jury trial, Lowe was convicted of attempted murder, two counts of use of a firearm in the commission of a felony, abduction, and discharge of a firearm at an occupied building, and was sentenced to twelve years and one month of incarceration. Commonwealth v. Lowe, Nos. CR13F00859-01 through-05, at 1-2 (Va. Cir. Ct. June 24, 2014).

         Lowe appealed, arguing that the trial court "abused its discretion by not establishing on record the justifications and other pertinent findings to restrain [him] with a stun belt during trial... ." Lowe v. Commonwealth, No. 1178-14-2, at 1 (Va. Ct. App. Apr. 8, 2015). The Court of Appeals of Virginia denied the petition for appeal. See Id. at 1. A three-judge panel also denied the petition for appeal. Lowe v. Commonwealth, No. 1178-14-2, at 1 (Va. Ct. App. June 22, 2015). The Supreme Court of Virginia refused the petition for appeal. Lowe v. Commonwealth, No. 151117, at 1 ...


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