United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
Brooke Cutrell, a Virginia inmate proceeding pro se, has
filed a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging the constitutionality of his
conviction of burglary and other offenses entered by the
Chesterfield County Circuit Court. Before the Court is
respondent's Motion to Dismiss the petition [Dkt. No.
16], to which petitioner has filed a response. [Dkt. No. 23]
For the following reasons, the Motion to Dismiss will be
granted, and the petition will be dismissed with prejudice.
a jury trial, Cutrell was convicted on July 8, 2013 of one
count of felony statutory burglary, felony grand larceny, and
misdemeanor assault. He was sentenced to a total of 47 years
and 12 months imprisonment, with 20 years and 12 months
suspended. Case Nos. CR12F02755-06 and -07, CR12M02874-01;
Resp. Ex. A-l.
direct appeal, Cutrell argued that the evidence was
insufficient as a matter of law: (1) to prove his identity as
the perpetrator, and (2) to prove he was armed with a deadly
weapon when he entered the victim's home. The petition
for appeal was denied on February 26, 2014, Cutrell v.
Commonwealth. R. No. 1423-13-2 (Va. Ct. App. Feb. 26,
2014), and a three-judge panel declined further review on
July 2, 2014. Resp. Ex. A-2. The Supreme Court of Virginia
refused Cutrell's petition for appeal on January 15,
2015. Cutrell v. Commonwealth. R. No. 141178 (Va.
Jan. 15, 2015); Resp. Ex. A-3.
timely filed a petition for a state writ of habeas corpus in
the Supreme Court of Virginia in which he raised the
1. Trial counsel advised him not to accept a plea offer that
would have capped his sentence at 14 years and to proceed to
a jury trial instead:
a. Without advising him that the minimum sentence for armed
statutory burglary was 20 years, and the maximum was life;
b. Without advising him as to the evidence that would be used
against him at trial;
c. Without advising him as to the intended defense strategy;
d. By misleading him to believe that the Commonwealth's
evidence was inadmissible and insufficient;
e. By deceiving him into believing that if he accepted the
plea offer counsel would be unable to do anything further and
he "would be on his own."
2. Trial counsel was ineffective for failing to file a
pretrial motion to suppress the victim's identification
of petitioner as the perpetrator.
3. Trial counsel was ineffective for failing to investigate
and challenge the valuation of the victim's property that
was used to charge grand larceny.
4. Trial counsel was ineffective for failing to challenge the
chain of custody of the DNA evidence.
5. Trial counsel was ineffective for failing to present
evidence favorable to the defense in the form of:
a. Petitioner's "prominently" tattooed arms:
b. Independent DNA expert testimony;
c. Petitioner's testimony in his own defense.
6. Trial counsel was ineffective for failing to object when
the trial court abused its discretion in denying the
jury's request to view petitioner's prominent arm
7. His rights to due process and a fair trial were violated
when the court refused to strike the charge of armed burglary
after the Commonwealth failed to prove beyond a reasonable
doubt that petitioner was armed.
Resp. Ex. B.
the respondent filed a motion to dismiss the petition, the
Supreme Court of Virginia directed that an evidentiary
hearing be conducted on specified factual issues arising from
Claim 1 and a portion of Claim 5 as listed above. Resp. Ex.
C. The circuit court conducted the hearing on December 14,
2016 and certified its findings to the Supreme Court of
Virginia on February 3, 2017. Resp. Ex. D. On May 30, 2017,
the Supreme Court dismissed CutrelPs habeas corpus petition.
Cutrell v. Clarke. R. No. 160297 (Va. May 30, 2017);
Resp. Ex. E. Cutrell's motion for rehearing was denied on
October 5, 2017.
then turned to the federal forum and timely filed the instant
application for § 2254 relief by placing it into his
institution's mailing system on October 13, 2017. Pet. at
16. He makes the following claims:
1. He received ineffective assistance of counsel during plea
a. Counsel incorrectly told him that he could not plead
guilty while maintaining his innocence.
b. Counsel provided him with insufficient notice of the plea
c. Counsel failed to "find out the specifics" of
the 10-year plea offer made a week before trial.
d. Counsel disregarded Cutrell's express wish to seek a
e. Counsel failed to advise him that he faced a life
2. He received ineffective assistance of counsel during
a. Counsel and the court failed to advise him of his right to
testify on his own behalf.
b. Counsel did not challenge the Commonwealth's evidence
that he brought a knife into the victim's home.
c. Counsel "never argued against grand larceny, even
though [the] value" of the stolen items ...