United States District Court, W.D. Virginia, Roanoke Division
JAMES W. CARTER, Petitioner,
HAROLD CLARKE, Respondent.
Jackson L. Kiser, Senior United States District Judge.
W. Carter, a Virginia inmate proceeding pro se, timely filed
a petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging the validity of his confinement on a
probation revocation by the Roanoke City Circuit Court.
Respondent filed a motion to dismiss, and Carter failed to
respond, making the matter ripe for disposition. After review
of the record, I grant the motion to dismiss, and dismiss the
2016, Carter's probation officer authored a major
violation report alleging Carter was convicted of DUI and
driving on a revoked license, and that he had failed to
report to the probation office, had used alcohol, and had
tested positive for marijuana and cocaine. Carter - conceded
the violations, and the Roanoke City Circuit Court revoked
eight years of his previously suspended sentence,
re-suspended six years of the sentence, ordered three years
of supervised probation, and set a judgment of $623.
Carter's appeal to the Court of Appeals of Virginia was
unsuccessful. He did not file a direct appeal to the Supreme
Court of Virginia. Carter later filed a state habeas petition
based on the probation revocation, but the Supreme Court of
Virginia denied relief.
raises the following claims:
Commonwealth called a witness at the revocation hearing that
violated Carter's confrontation rights; and
Trial counsel was ineffective for failing to object to the
testimony of a probation officer that did not know Carter
during the revocation hearing.
respondent acknowledges that Carter's petition is timely.
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) Resulted 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 States;
(2) Resulted 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); see also Williams v.
Taylor, 529 U.S. 362, 403-13 (2000). "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 fair-minded
jurists could agree on the correctness of the state
court's decision." Harrington v. Richter,562 U.S. 86, 101 (2011). The AEDPA standard is "highly
deferential" to both factual findings and legal