United States District Court, W.D. Virginia, Roanoke Division
Martinez, Pro Se Petitioner;
Christopher P. Schandevel, Assistant Attorney General,
Richmond, Virginia, for the Respondent.
P. Jones United States District Judge
pro se Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2254, the petitioner David Martinez, a Virginia
inmate, challenges the validity of his confinement on a
judgment from state court. After review of the record, I
conclude that the respondent's Motion to Dismiss must be
granted, because Martinez's petition is procedurally
Martinez was convicted in the Circuit Court of Alleghany
County of second-degree murder and received an active
sentence of twenty-five years. Martinez filed an appeal,
which the Court of Appeals of Virginia denied. Martinez
appealed again, but the Supreme Court of Virginia dismissed
his petition for failing to address the Court of Appeals of
Virginia's ruling pursuant to Va. Sup. Ct. R.
5:17(c)(iii). After that, Martinez filed a habeas petition in
the circuit court. The court granted relief on one of
Martinez's claims, granting Martinez the right to seek a
delayed direct appeal. That appeal remains pending before the
Supreme Court of Virginia. Martinez appealed the circuit
court's denial of his remaining habeas claims. The
Supreme Court of Virginia dismissed that appeal.
August 11, 2017, Martinez filed his petition in this court,
alleging that his trial counsel had been ineffective for
failing to (1) timely file a motion to suppress the evidence
seven days before trial; (2) object to the admissibility of a
certain prosecution exhibit at trial on the ground that it
was not properly disclosed to the defense before trial; and
(3) properly perfect his appeal when he failed to include a
proper assignment of error. The respondent moves to dismiss
Martinez's petition as procedurally barred.
habeas petitioner is barred from seeking federal review of a
claim that was presented to a state court and ‘clearly
and expressly' denied on the independent, adequate state
ground of procedural default.” Bennett v.
Angelone, 92 F.3d 1336, 1343 (4th Cir. 1996) (quoting
Harris v. Reed, 489 U.S. 255, 263 (1989)). A
procedural rule is adequate “if it is regularly or
consistently applied by the state court, ” and
independent “if it does not ‘depend on a
federal constitutional ruling.'” Yeatts v.
Angelone, 166 F.3d 255, 260 (4th Cir. 1999) (quoting
Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
Martinez' state habeas appeal, the Supreme Court of
Virginia denied Claims 1 and 2 pursuant to Virginia Supreme
Court Rule 5:9(a), for failing to adequately identify the
case to be appealed. Rule 5:9(a) is an independent and
adequate state procedural rule constituting procedural
default. Wise v. Williams, 982 F.2d 142, 144 (4th
Cir. 1992). Therefore, Claims 1 and 2 are procedurally barred
from federal review.
“a federal court may not grant a writ of habeas corpus
to a petitioner in state custody unless the petitioner has
first exhausted his state remedies by presenting his claims
to the highest state court.” Baker v.
Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing 28
U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999)). To meet the
exhaustion requirement, a petitioner “must have
presented to the state court both the operative facts and the
controlling legal principles.” Kasi v.
Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002) (internal
quotation marks and citation omitted). “A claim that
has not been presented to the highest state court
nevertheless may be treated as exhausted if it is clear that
the claim would be procedurally barred under state law if the
petitioner attempted to present it to the state court.”
Baker, 220 F.3d at 288 (citing Gray v.
Netherland, 518 U.S. 152, 161 (1996)).
is exhausted but defaulted. Martinez brought Claim 3 in his
circuit court habeas petition, but failed to raise the claim
in his appeal to the Supreme Court of Virginia. Therefore,
Claim 3 was not properly presented to the highest state
court, and the claim is exhausted but defaulted under
Baker. Martinez cannot return to state court because
any additional state habeas proceeding would be successive.
See Va. Code Ann. § 8.01-654(B)(2) (A habeas
petition “shall certify that the petitioner has filed
no prior habeas corpus petitions attacking the conviction or
probation revocation.”). Thus, all claims are
procedurally barred from federal review.
a claim is procedurally defaulted, then petitioner must fail
on that claim unless he can show that cause and prejudice or
a fundamental miscarriage of justice might excuse his
default.” Bell v. True, 413 F.Supp.2d 657, 676
(W.D. Va. 2006) (citing Fisher v. Angelone, 163 F.3d
835, 844 (4th Cir. 1998)). The “cause” prong
requires a petitioner to demonstrate that there were some
“objective factor, ” external to his defense,
which impeded him from raising his claim at an earlier stage.
Murray v. Carrier, 477 U.S. 478, 488 (1986). The
“prejudice” prong requires a petitioner to show
that the alleged constitutional violation worked to his
actual and substantial disadvantage, infecting his entire
trial with error of a constitutional magnitude. Id.
at 495. “[T]he ‘cause and prejudice' test is
framed in the conjunctive, the absence of cause makes
unnecessary an inquiry into prejudice.” Davis v.
Allsbrooks, 778 F.2d 168, 176 (4th Cir. 1985).
Meanwhile, the fundamental miscarriage of justice exception
requires a petitioner to ...