United States District Court, E.D. Virginia, Alexandria Division
O'GRADY UNITED STATES DISTRICT JUDGE
Sangria Cowell, a Virginia inmate proceeding pro se, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction of drug
offenses entered on a plea of guilty in the Circuit Court for
the City of Chesapeake. The matter comes before the Court on
a Motion to Dismiss the petition filed by the respondent, to
which petitioner has filed his opposition. For the reasons
which follow, the Motion to Dismiss will be granted, and the
petition will be dismissed, with prejudice. Also pending is
petitioner's Motion for Stay-and-Abeyance of
Petitioner's Mixed Habeas Corpus Petition, which will be
9, 2014, the trial court accepted Cowell's guilty plea
and entered convictions for possession of a firearm while
possessing drugs with the intent to distribute, possession of
heroin with the intent to distribute, possession of cocaine
with the intent to distribute, and possession of a firearm
after having been convicted of a violent felony. Case No.
CR12-200-00 through -03. Cowell subsequently moved to withdraw
the guilty plea, Resp. Ex. 5, and the trial court denied his
request in open court after a hearing. Resp. Ex. 6, Tr.
4/15/14 at 13. Consistent with the terms of the plea
agreement, which capped CowelFs maximum active term of
imprisonment at 20 years, he was sentenced on May 1, 2014, to
an active sentence of 18 years incarceration. Resp. Ex. 4.
Cowell took no direct appeal.
4, 2015, Cowell timely filed a petition for a state writ of
habeas corpus, in which he raised the following claims:
1. Trial counsel was ineffective for failing to investigate,
interview and subpoena defense witnesses.
2. Trial counsel was ineffective for (a) failing to prepare
for the suppression hearing, (b) refusing to allow Cowell to
testify at that hearing, and (c) failing to appeal the denial
of the motion to suppress.
3. Trial counsel was ineffective for failing to object to the
denial of the defense's attempt to use exculpatory
4. Trial counsel was ineffective for coercing him to plead
guilty after failing to use an available defense.
5. Trial counsel was ineffective for misadvising him about
the true nature of the plea and the likely outcome at
6. Trial counsel was ineffective for failing to (a) prepare
for trial, (b) prepare for sentencing and review the
presentence report with Cowell, and (c) file necessary
7. Trial counsel was ineffective for refusing to provide
Cowell with copies of the plea agreement and counsel's
case file after Cowell requested them in a letter on May 1,
8. The trial court erred when it refused to permit the
defense to use an affidavit containing a third-party
confession to the crimes as exculpatory evidence.
9. Trial counsel was ineffective when he failed to (a) appeal
the denial of Cowell's motion to withdraw . his guilty
plea after Cowell instructed him to do so, and (b) inform
Cowell that he could file such an appeal.
10. The trial court erred in failing to allow Cowell to
withdraw his guilty plea where the motion to do so was
supported by evidence of actual innocence.
11. The Commonwealth committed prosecutorial misconduct when
it strategically moved to have a new judge hear certain
12. The Commonwealth committed prosecutorial misconduct when
it failed to honor a tentative plea agreement.
13. Counsel was ineffective for failing to move for dismissal
of all charges after forensic evidence proved Cowell's
14. The trial court erred when it failed to allow Cowell to
assert his rights to a speedy trial and a fair trial.
Resp. Ex. 7. Respondent in its Answer conceded that Cowell
was entitled to relief in the form of a delayed appeal on
Claim 9(b), and the trial court entered an Order on January
14, 2016, directing the respondent to petition the Court of
Appeals of Virginia to grant Cowell the right to seek a
delayed appeal. Cowell's remaining claims were determined
to be without merit and were denied and dismissed with
prejudice. Resp. Ex. 8. After the Court of Appeals granted
Cowell the right to seek a delayed appeal, Resp. Ex. 9, the
trial court entered a final order on March 22, 2016, finding
that Cowell had been "granted the relief to which he is
entitled and nothing further remains to be done." Resp.
was appointed to represent Cowell on the delayed appeal. On
March 28, 2017, counsel filed a petition for appeal pursuant
to Anders v. California. 386 U.S. 738 (1967), along
with a motion to withdraw. Resp. Ex. 11-12. The sole
potential error cited by counsel was the trial court's
denial of CowelPs motion to withdraw the guilty plea. Resp.
Ex. 11 at 2. Cowell filed a pro se supplemental petition for
appeal, arguing that: (1) the trial court erred by allowing
the Commonwealth to breach the plea agreement, and (2) the
trial court erred by accepting a fraudulent plea agreement
that left the sentence to the court's discretion. Resp.
Ex. 13. On November 17, 2017, the Court of Appeals denied the
petition for appeal and granted the motion to withdraw,
finding the case to be "wholly frivolous."
Cowell v. Commonwealth. R. No. 0486-16-1 (Va. Ct.
App. Nov. 17, 2017); Resp. Ex. 14. Cowell's subsequent
motions for rehearing and rehearing en banc were
denied, Resp. Ex. 16-17, and although he noticed an appeal to
the Supreme Court of Virginia, Resp. Ex. 19, he never
perfected the appeal.
the delayed appeal proceedings were ongoing, Cowell filed a
pro se petition for appeal in the Supreme Court of Virginia,
challenging the trial court's dismissal of the remainder
of the claims he raised in his state habeas petition. Resp.
Ex. 20. On April 12, 2017, the Supreme Court determined that
there was no error in the trial court's judgment and
refused the petition for appeal. Cowell v. Wright.
R. No. 161085 (Va. Apr. 12, 2017); Resp. Ex. 21.
about June 8, 2018, Cowell timely filed the instant petition
for a writ of habeas corpus pursuant to §
2254. [Dkt. No. 9] In it, he makes the following
1. The trial court abused its discretion when it (a) denied
Cowell's motion to suppress, in violation of his Fourth
and Fifth Amendment rights; (b) accepted his guilty plea that
was not knowing, voluntary or intelligent, in violation of
his Fifth Amendment rights; and (c) refused to allow him to
withdraw the guilty plea, in violation of his Fourteenth
2. (a) Appellate counsel was ineffective for failing to argue
that Cowell's guilty plea was not knowing, voluntary or
intelligent, (b) Trial counsel was ineffective for
erroneously advising Cowell that he could still appeal the
denial of his motion to suppress after he entered an
unconditional guilty plea.
3. Trial counsel was ineffective for (a) deliberately
choosing not to prepare for criminal proceedings; (b) failing
to investigate, contact, interview and subpoena critical
witnesses; and (c) failing to present an available defense.
4. The trial court abused its discretion and violated
Cowell's Fourteenth Amendment rights by accepting a plea
agreement that stated that the court would have discretion at
sentencing, thereby rendering the agreement faulty,
fraudulent and void.
9, 2018, respondent filed a Motion to Dismiss with a
supporting brief and exhibits, and provided petitioner with
the notice required by Roseboro v. Garrison. 528
F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 13-15]
After receiving an extension of time, Cowell filed his
opposition to the Motion to Dismiss on August 2, 2018. [Dkt.
No. 22] In addition, Cowell filed a Motion for
Stay-and-Abeyance on July 30, 2018. [Dkt. No. 20]
Accordingly, this matter is ripe for disposition.
Exhaustion and Procedural Default
bringing a federal habeas petition, a person convicted of a
state crime must first exhaust his claims in the appropriate
state court. 28 U.S.C. § 2254(b); Granberrv v
Greer. 481 U.S. 129 (1987); Rose v. Lundv. 455
U.S. 509 (1982). To comply with the exhaustion requirement, a
petitioner "must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." O'Sullivan v. Boerckel.
526 U.S. 838, 845 (1999). Thus, a petitioner convicted in
Virginia first must have presented the same factual and legal
claims raised in his federal habeas corpus application to the
Supreme Court of Virginia on direct appeal or in a state
habeas corpus petition. Duncan v. Henrv. 513 U.S.
addition, "[a] claim that has not been presented to the
highest state court nevertheless may be treated as exhausted
if it is clear that the claim would be procedurally barred
under state law if the petitioner attempted to present it to
the state court." Gray v. Netherland. 518 U.S.
152, 161 (1996). Importantly, "the procedural bar that
gives rise to exhaustion provides an independent and adequate
state-law ground for the conviction and sentence, and thus
prevents federal habeas review of the defaulted claim."
Id. at 162. Therefore, such a claim is deemed to be
simultaneously exhausted and defaulted for purposes of
federal habeas review. See Bassette v. Thompson. 915
F.2d 932 (4th Cir. 1990).
state court "clearly and expressly bases its dismissal
of a habeas petitioner's claim on a state procedural
rule, and that procedural rule provides and independent and
adequate ground for the dismissal, the habeas petitioner has
procedurally defaulted his federal claim." Breard v.
Pruett. 135 F.3d 615, 619 (4th Cir. 1998). Thus,
"[a] habeas petitioner is barred from seeking federal
review of a claim that was presented to a state court and
'clearly and expressly' denied on the independent,
adequate state ground of procedural default."
Bennett v. Angelone. 92 F.3d 1336, 1343 (4th Cir.
1996). A state procedural rule is "adequate if it is
firmly established and regularly or consistently applied by
the state courts, and "independent" if it does not
depend upon a federal constitutional ruling. Yeatts v.
Angelone. 166 F.3d 255, 263-64 (4th Cir. 1998).
Moreover, a claim is defaulted for federal purposes whenever
a state court makes a finding of procedural default,
regardless of whether it discusses the merits of the claim in
the alternative. Alderman v. Zant. 22 F.3d 1541,
1549 (11th Cir. 1994) (holding that "where a state court
has ruled in the alternative, addressing both the independent
state procedural ground and the merits if the federal claim,
the federal court should apply the state procedural bar and
decline to reach the merits of the claim."). Pursuant to
these principles, claims 1(a), 1(b), 1(c) 2(b), portions of
claims 3(a) and 3(c), and claim 4 of this petition are
procedurally barred from federal review.
claim 1(a), Co well argues that the trial court violated his
Fourth and Fifth Amendment rights and abused its discretion
when it denied his motion to suppress. This claim was not
exhausted in the state forum, as Cowell failed to raise it on
direct appeal or in his state habeas corpus petition. Resp.
Ex. 7, 11, 13. Were he to return to the state courts to
attempt to raise it now, the claim would be barred pursuant
to Va. Code § 8.01-654(B)(2), which states that
"[n]o writ shall be granted on the basis of any
allegation of facts of which petitioner had knowledge at the
time of ...