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Berglowe v. Director of D.O.C.

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

July 18, 2018

KEVIN BERGLOWE, Petitioner,
v.
DIRECTOR OF D.O.C., Respondent.

          MEMORANDUM OPINION

          HON. GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE

         Kevin Berglowe, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment in the Buchanan County Circuit Court. Respondent filed a motion to dismiss, and Berglowe responded, making the matter ripe for disposition. After review of the record, the court concludes that the petition must be dismissed.

         I.

         On habeas review, the Supreme Court of Virginia established the following facts:

[P]etitioner sold cocaine to a confidential informant in August 2011. Thereafter, petitioner and the Commonwealth entered into a bond agreement permitting petitioner to serve as a confidential informant for a police drug task force. In February 2012, after learning that petitioner violated the bond agreement and sold cocaine and marijuana from his residence, the police searched his residence. The police recovered twenty-six grams of cocaine individually packaged in plastic baggies, six pounds of marijuana in the woods outside the residence, and three bags of marijuana concealed in a large bag of dog food.

Berglowe v. Dir. of the D.O.C.. No. 160245, slip op. at 2 (Va. Jan. 17, 2017).

         Pursuant to pleas of no contest, the Buchanan County Circuit Court convicted Berglowe of possession of a Schedule I or II controlled substance with intent to distribute, third or subsequent offense, distribution of a Schedule I or II controlled substance through accommodation, possession of greater than five pounds of marijuana with intent to distribute, and misdemeanor nuisance. Berglowe was sentenced to thirty five years and twelve months' imprisonment, with twenty-five years and twelve months suspended. Berglowe's direct appeals and other postconviction motions failed.

         II. Current Petition

         On or around November 16, 2017, Berglowe filed a § 2254 petition, alleging the following claims:

1. Counsel was ineffective at sentencing for failing to proffer evidence of a reasonable or valid defense in support of Berglowe's oral motion to withdraw his no contest pleas;
2. Counsel was ineffective at sentencing for failing to file written motions to withdraw Berglowe's no contest pleas and to dismiss the case based on entrapment;
3. Counsel was ineffective for not obtaining a ruling on Berglowe's motion to reconsider the withdrawal of his pleas;
4. Counsel was ineffective on appeal because he did not properly file the motion to withdraw Berglowe's no contest pleas or obtain a ruling on the motion to reconsider, and thus the motions were not made a part of the appellate record; and
5. The trial court constructively denied Berglowe his right to effective assistance of counsel by not ruling on his motion to withdraw his pleas, his motion to dismiss, and his motion to reconsider.

         Berglowe seeks reversal of his convictions. Respondent acknowledges that Berglowe's claims are timely, and this matter is now before the court on Respondent's motion to dismiss.

         III. 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, a federal 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 ...

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