Lee v. Clarke

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge.

         Tyrone Hiawatha Lee, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging die validity of his confinement on a judgment by the Roanoke City Circuit Court. Respondent filed a motion to dismiss Lee's petition, and Lee responded, making the matter ripe for disposition. After review of the record, the court concludes that Lee's petition is without merit, requiring the motion to dismiss to be granted.

         I. Background

         On January 19, 2016, the Roanoke City Circuit Court convicted Lee of attempted murder, use of a firearm, and possession of a firearm by a violent felon, and sentenced him to thirteen years' imprisonment. At trial, Lee proceeded pro se with standby counsel. On June 27, 2016, the Court of Appeals of Virginia dismissed Lee's petition for appeal as untimely. On November 10, 2016, Lee filed a habeas petition in the Supreme Court of Virginia, arguing that appellate counsel was ineffective for failing to discuss the consequences of not appealing in a timely manner. While his state habeas petition was pending, Lee also filed a motion pursuant to Va. Code § 8.01-428(A)(ii) in the Supreme Court of Virginia, arguing that a nolle prosequi of a malicious wounding indictment was void, and that he had been unlawfully denied a preliminary hearing. The Supreme Court of Virginia denied Lee's petition and motion.

         In his current petition, Lee alleges the same three claims as in his state filings: (1) the denial of a preliminary hearing violated his Fourteenth Amendment rights; (2) the nolle prosequi of the malicious wounding indictment was void; and (3) appellate counsel was ineffective for failing to consult with Lee. Respondent acknowledges that Lee's petition is timely and all claims are properly exhausted.^[1]

         II. Standard of Review

         To obtain federal habeas relief, 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). Under 28 U.S.C. § 2254(d), however, the federal habeas court may not grant a writ of habeas corpus based on any claim that a state court decided on the merits unless that adjudication:

(1) [R]esulted 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

(2) [R]esulted 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). "Where, as here, the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable." Yarborough v. Gentry. 540 U.S. 1, 5 (2003). Under this standard, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter. 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado. 541 U.S. 652, 664 (2004)).

         To state a constitutional claim for ineffective assistance of counsel, a petitioner must satisfy the two-pronged Strickland v. Washington test by showing (1) "that counsel's performance was deficient, " and (2) "that the deficient performance prejudiced the defense." 466 U.S. 668, 687 (1984). "Judicial scrutiny of counsel's performance must be highly deferential, " Id. at 689, and counsel is "permitted to set priorities, determine trial strategy, and press those claims with the greatest chances of success." United States v. Mason. 774 F.3d 824, 828 (4th Cir. 2014). When reviewing a Strickland claim under the AEDPA, the court's review is doubly deferential. See Harrington. 562 U.S. at 105.

         For Strickland's first prong, a petitioner must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom." Harrington. 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). For the second prong, a petitioner must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         III. Analysis

         In Claim 1, Lee argues that he was improperly denied a preliminary hearing under the Fourteenth Amendment, but he does not support his claim with any law or facts. In his state habeas petition, Lee alleged that the Commonwealth had violated his rights by denying him a preliminary hearing even though he was arrested on felony charges. See Va. Code § 19.2-218. However, the right to such a hearing is granted by Virginia statute, not federal law. See Webb v. Commonwealth. 204 Va. 24, 31, 129 S.E.2d 22, 28 (1963) ("[T]he requirement of a preliminary hearing of one arrested on a charge of a felony is not jurisdictional, and its denial does not ...