United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
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.
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).
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
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
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
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
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.
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.
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, 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 ...