United States District Court, E.D. Virginia, Alexandria Division
O'GRADY, UNITED STATES DISTRICT JUDGE
Glenn Galloway, 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
convictions in the Circuit Court of Northampton County.
Respondent filed a Motion to Dismiss and Rule 5 Answer, along
with a supporting brief and exhibits. Dkt. Nos. 8-10.
Petitioner was given the opportunity to file responsive
materials pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975) and Local Rule 7K. Dkt. No. 11.
Petitioner filed a Traverse to Respondent's Motion to
Dismiss as well as an affidavit. Dkt. Nos. 17-18. The matter
is now ripe for disposition. For the reasons that follow,
respondent's Motion to Dismiss will be granted, and the
petition will be dismissed, with prejudice.
record reflects the following. Petitioner is detained
pursuant to a final judgment of the Circuit Court of
Northampton County, entered July 28, 2014, and amended on
August 4, 2014. Commonwealth v. Galloway, Nos.
CR13000175-01, -02, -03, -07. Petitioner was convicted by a
judge of one count of driving under the influence
("DUI") (third or subsequent offense), in violation
of Virginia Code § 18.2-266/270, one count of refusal to
take a breathalyzer, in violation of Virginia Code §
18.2-268.3, one count of driving on a DUI related revoked
license, in violation of Virginia Code § 46.2-301, and
one count of failure to provide proof of insurance, in
violation of Virginia Code § 46.2-902.1. Id.
Petitioner was sentenced to seven years and six months
imprisonment with no time suspended. Id.
pursued a direct appeal to the Court of Appeals of Virginia,
which was denied on August 25, 2015. Record No. 1593-14-1. On
direct appeal, the Court of Appeals of Virginia stated the
facts as follows.
[T]he evidence proved that on May 31, 2013, at approximately
8:42 p.m., Trooper Brian Kennedy of the Virginia State Police
was dispatched to an accident scene. When he arrived, he saw
'Hire tracks and yaw marks" where a vehicle
"had run off the road to the right into a ditch, way
overcorrected to the left causing the vehicle to roll over
and run down the road upside down on its roof." When
Trooper Kennedy approached the scene, he saw several open
containers of Colt 45 beer in and around the vehicle.
The emergency medical technicians (EMTs) were assisting two
people, [petitioner] and his wife, who were in the accident.
[Petitioner] told Trooper Kennedy that he "was driving
and went off the road into a ditch because of a deer, lost
control and flipped." Trooper Kennedy described
[petitioner's] speech as "very loud and
slurred." Trooper Kennedy also noticed that [petitioner]
was disheveled and had "bloodshot eyes, glassy
eyes." While speaking with [petitioner], Trooper Kennedy
had to repeat himself because [petitioner] looked at him
"with a blank stare." [Petitioner] had an injury on
the side of his face and was transported to the hospital.
Peter Surran was the EMT who travelled with [petitioner] in
the ambulance to the hospital. Surran said that
[petitioner's] injury was on the right side of his head
and the bleeding was "controlled by a dressing."
Surran testified that he smelled an odor of alcohol coming
from [petitioner's] person and on his breath.
[Petitioner] told Surran that he was driving at the time of
Trooper Kennedy interviewed [petitioner] at the hospital.
Kennedy described [petitioner] as being "very
cooperative, very nice; and then he would get loud and then
draw back." The trooper said it was like "a seesaw
effect." Trooper Kennedy said that [petitioner]
"had a strong odor of alcohol emanating from his person.
His eyes were bloodshot and watery." [Petitioner]
admitted to Trooper Kennedy that he was driving and ran off
the road. When asked how much he had to drink, [petitioner]
responded that he had three or four beers. He also told
Kennedy that he was taking blood pressure medicine.
Trooper Kennedy administered a horizontal gaze nystagmus
(HGN) test. All six indicators of impairment were present.
[Petitioner] refused field sobriety tests and a breath or
blood test. After Trooper Kennedy arrested him for driving
under the influence, [petitioner] denied driving. Upon
signing the summons, [petitioner] left the hospital and
[Petitioner] testified that he recently found out that he
lost his job and was later hospitalized for suicidal
thoughts. He had been taking medication for his stomach and
to stop smoking. When asked by the court, [petitioner] said
that he was not supposed to consume any alcohol while taking
Id. (footnote omitted). In his direct appeal,
petitioner claimed that the evidence was insufficient to
convict him of DUI. Id. The Supreme Court of
Virginia refused the petition for appeal on July 13, 2016.
Record No. 151850.
pursuing his direct appeal, petitioner timely filed a
petition for a writ of habeas corpus in the Supreme Court of
Virginia. Record No. 170601. Petitioner asserted the
following claims in his state habeas corpus petition.
1. Violation of petitioner's right to a speedy trial.
2. The trial court erred in preventing petitioner from
presenting a witness whose testimony would have been
beneficial to his defense.
3. Trial counsel was ineffective because she failed to
investigate petitioner's mental health.
4. Trial counsel was ineffective because she failed to
interview and call as witnesses petitioner's treating
physician and medical staff from the hospital where
petitioner was treated after the accident.
5. Violation of petitioner's rights pursuant to
Miranda v. Arizona.
6. The evidence was insufficient to convict petitioner for
failing to wear a seatbelt.
7. Trial counsel was ineffective because she failed to
adequately investigate and present mitigating evidence at
8. The evidence was insufficient to convict petitioner of
driving while uninsured.
9. Trial counsel was ineffective because she failed to
develop and present an insanity defense.
Id. The Supreme Court of Virginia dismissed the
state habeas petition on October 20, 2017. Id.
March 9, 2018, petitioner filed the instant federal petition,
wherein he challenges his convictions on the following
1(a). The evidence was insufficient to support his conviction
of violating Virginia Code § 46.2-901.
1(b). Petitioner is actually innocent of violating Virginia
Code § 46.2-902.1, and therefore, counsel was
ineffective for not challenging the state's evidence.
2. Trial counsel was ineffective because she failed to
conduct an adequate investigation into and presentation of
mitigating evidence during the penalty phase, including
presenting qualified witnesses.
See Dkt. No. 1.
Procedural Bar, Exhaustion, and Default
Claim 1(a) petitioner asserts that there was insufficient
evidence to convict him of violating Virginia Code §
46.2-901, however, petitioner was not convicted of violating
that statute. Rather, petitioner was convicted of violating
Virginia Code § 46.2-902.1, for failing to provide proof
that the vehicle he was driving was insured. Because
petitioner's arguments supporting Claim 1(a) all relate
to providing proof of insurance, Claim 1(a) will be taken as
asserting that there was insufficient evidence to convict
petitioner of violating Virginia Code §
state court has made an express determination of procedural
default, the state court's finding is entitled to a
presumption of correctness, provided two foundational
requirements are met. See 28 U.S.C. § 2254(d);
Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.
1988). First, the state court must explicitly rely on the
procedural ground to deny petitioner relief. See Ylst v.
Nunnemaker, 501 U.S. 797, 802-03 (1991); Harris v.
Reed. 489 U.S. 255, 259 (1989). Second, the state
procedural rule used to default petitioner's claim must
be an independent and adequate state ground for denying
relief. See Harris, 489 U.S. at 260; Ford v.
Georgia, 498 U.S. 411, 423-24 (1991). When these two
requirements have been met, federal courts may not review the
barred claim absent a showing of cause and prejudice or a
fundamental miscarriage of justice, such as actual innocence.
Harris, 489 U.S. at 260.
state habeas court held that petitioner's instant Claim
1(a) was "barred because [this] non-jurisdictional
issue could have been raised at trial and on direct appeal
and, thus, [is] not cognizable in a petition for a writ of
habeas corpus. [Slayton v. Parrigan,215 Va. 27, 29,