United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge.
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
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.
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
Standard of Review
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
(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
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.
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."
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 ...