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Warden v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

June 29, 2018

CHAD EVERETT WARDEN, Petitioner,
v.
HAROLD CLARKE, DIRECTOR OF DEPARTMENT OF CORRECTIONS, Respondent.

          Chad Everett Warden, Pro Se Petitioner; Elizabeth K. Fitzgerald, Assistant Attorney General, Richmond, Virginia, for Respondent.

          OPINION

          James P. Jones United States District Judge

         In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, the petitioner Chad Everett Warden, a Virginia inmate, challenges the validity of his confinement by a criminal judgment from state court. After review of the record, I conclude that the respondent's Motion to Dismiss must be granted, because the petition is procedurally barred, incognizable, and otherwise without merit.

         I. Background.

         In 2013, the Circuit Court of Wythe County convicted Warden of malicious wounding and misdemeanor damage to a telephone line. For the malicious wounding, the court sentenced Warden to fifteen years' imprisonment, with ten years suspended. For his misdemeanor conviction, the court sentenced Warden to six months of incarceration to run concurrently with his other sentence. Warden's direct and state collateral review proceedings were unsuccessful.

         On October 6, 2017, Warden filed the current petition in this court, raising the following claims:

         1. The evidence was insufficient to sustain a malicious wounding conviction because no evidence was presented showing the victim was actually injured;

         2. Counsel was ineffective for failing to continue the case until a primary defense witness could appear, file a motion to set aside, and call the impeachment witnesses prior to the sentencing phase;

         3. The trial court abused its discretion and failed to comply with a Virginia court rule;

         4. The delay and denial of Warden's state habeas petition was prejudicial and a denial of due process;

         5. The evidence was insufficient to sustain a malicious wounding conviction because there was never any proof of injuries presented; and

         6. Counsel was ineffective for failing to adequately investigate the victim.

         The respondent acknowledges that Warden's petition is timely and exhausted, but moves to dismiss the petition as procedurally barred, incognizable, and otherwise without merit.

         II. Standards 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) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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