United States District Court, E.D. Virginia, Alexandria Division
Leroy Moore, by counsel, has filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, challenging
the constitutionality of his pandering and attempted
pandering convictions in the Circuit Court of Fairfax County.
Respondent filed a Motion to Dismiss and Rule 5 Answer, along
with a supporting brief and exhibits. Dkt. No. 5-7.
Petitioner filed a Reply. Dkt. No. 8. For the reasons that
follow, respondent's Motion to Dismiss will be granted,
and the petition will be dismissed, with prejudice.
is detained pursuant to a final judgment of the Circuit Court
of Fairfax County, entered April 8, 2015. Nos. FE-2014-1161,
1168. Petitioner entered an Alford plea and was found guilty
of one count of pandering, in violation of Virginia Code
§ 18.2-357, and one count of attempted pandering, in
violation of Virginia Code §§ 18.2-357, 18.2-26.
Id. Petitioner was sentenced to fifteen years
imprisonment, with five years suspended. Id.
filed a Motion to Withdraw his Plea on April 28, 2015, which
was denied by order dated the same day. JdL Petitioner
pursued a direct appeal to the Court of Appeals of Virginia
and his convictions were affirmed. Record No. 0706-15-4. On
direct appeal, the Court of Appeals of Virginia found the
underlying facts of the case to be the following.
In May of 2014, [petitioner] met A.R. at the store where he
worked. A.R., then twenty-two years old, had been declared
mentally incapacitated by a circuit court order and her
parents had been appointed as guardians. She was adopted from
Russia and suffers from post-traumatic stress disorder and
other ailments originating in childhood. She also has a very
[Petitioner's] relationship with A.R. began as
flirtations and ultimately developed into a sexual one.
[Petitioner] told A.R. that he needed money and that she
could help him. As a result, from May 8 through May 20, 2014,
[petitioner] took A.R. to a hotel where she would engage in
acts of prostitution with others. [Petitioner] received the
proceeds from these transactions.
In time, A.R, 's parents became suspicious and discovered
A.R.'s picture in an advertisement for escort services.
They contacted their local police department, and the
officers responded to A.R, 's advertisement in an
undercover capacity. While undercover, Detective Fox learned
that A.R. had been prostituting for appellant, who told her
what prices to charge, drove her to all her appointments, and
kept all of the money she earned.
[Petitioner] was arrested and initially denied that he was
involved with any prostitution. He then claimed that he and
A.R. were boyfriend and girlfriend. A subsequent search of
his cell phone and text communications reveled that he
communicated nightly with A.R. through test messages
regarding the need to make money and what to charge for
specific sexual acts.
Id. The Supreme Court of Virginia subsequently
refused his petition for appeal. Record No.
pursuing his direct appeal petitioner filed a Second Motion
to Reconsider Sentence in the trial court.Nos. FE-2014-1161,
1168. In that motion, petitioner presented new evidence; the
same evidence he uses to support the instant petition.
Id. Petitioner's motion for reconsideration was
denied by the trial court by order dated March 14, 2016.
Id. In denying the motion, the trial court stated,
in part, that
[e]ven if [petitioner] could prove [A.R.] engaged in
prostitution both before meeting [petitioner] and after
[petitioner] went to jail, it would not alter the Court's
judgment that [petitioner's] conduct was extraordinarily
predatory, that he used intimidation and coercion to achieve
his objectives, that [A.R.] was an especially vulnerable
victim due to her mental illness and limited mental capacity,
that the [petitioner's] misconduct had a devastating
impact on the victim, and that [petitioner] came before the
Court with an extensive and violent criminal history.
Id. Petitioner then filed a writ of habeas corpus in
the Supreme Court of Virginia.
No. 160684. The state habeas petition was dismissed on May 8,
December 11, 2017, petitioner filed the instant federal
petition, wherein he challenges his convictions.
Specifically, he alleges the following.
I. Trial counsel was ineffective for failing to investigate
the actual relationship between [petitioner] and [A.R.] and
[A.R, ]'s previous prostitution. [Petitioner] was
prejudiced either because he would not have entered a plea
had all the facts been readily available or because the
evidence would have resulted in a lesser sentence.
II. [Petitioner's] plea was involuntary, because his
trial counsel deprived him of any evidence about his case
until more than a month after his plea hearing.
III. [Petitioner's] trial counsel was constitutionally
ineffective because there was an actual conflict in this case
that adversely hurt trial counsel's performance, and thus
Standard of Review
Review on the Merits
proper standard of review depends on whether the state habeas
court's decision was an adjudication on the merits.
"For AEDPA's deferential standard to apply to the
state post-conviction-relief court's dismissal of these
claims, the court's decision must qualify as an
'adjudication on the merits' under § 2254(d);
otherwise, de novo review is proper. Whether a claim
has been adjudicated on the merits is a case-specific inquiry
...." Morva v. Zook. 821 F.3d 517, 527 (4th
Cir. 2016) (internal quotation marks, citations, and
alterations omitted). "A claim is not 'adjudicated
on the merits' when the state court makes its decision on
a materially incomplete record. A record may be materially
incomplete when a state court unreasonably refuses to permit
further development of the facts of a claim." Gordon
v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015) (internal
quotation marks and citations omitted).
asserts that the state habeas court's decision was not an
adjudication of the merits because it was made on a
materially incomplete record. Petitioner later makes the
conclusory allegation that the state habeas court truncated
the factual development of the record by denying his requests
for discovery and an evidentiary hearing, despite his newly
presented evidence. Petitioner's conclusory allegation
that the state habeas court did not allow him to develop the
facts of his claims further is insufficient. In addition, the
record does not establish that the state habeas court ignored
any of petitioner's evidence. See Morya, 821 F.3d at 528
("Although the Supreme Court of Virginia precluded some
factual development as to counsel's investigative
decisionmaking, the court did not act unreasonably. The
record was substantial and contained sufficient evidence to
answer the Strickland inquiry.").
in the petition, petitioner argues that there were factual
disputes that needed development through an evidentiary
hearing. Specifically, petitioner argues that the state
habeas court (1) improperly determined that A.R, 's
friend's testimony did not establish that this friend
knew A.R. was engaged in prostitution prior to meeting
petitioner; (2) improperly determined that A.R.'s brother
repudiated testimony favorable to petitioner; and (3) treated
one affiant's testimony "with inappropriate
skepticism." Pet. at 28-29.
examples are not of facts in dispute, rather, they are
examples of why petitioner believes the state habeas court
unreasonably determined the facts in light of the evidence
presented. Petitioner admits as much since he lists these
same examples as reasons why the state court unreasonably
determined the facts before it. Pet. at 27. Therefore, the
state habeas court decision was not made on a materially
incomplete record and it was a decision on the merits.
Petitioner also claims that the state habeas court's
decision is not entitled to deference because the lack of an
evidentiary hearing made the process employed by the state
court defective. However, he provides no law to support this
specific claim and the Court has not found any legal support
for this argument. Therefore, the state court's decision
is entitled to deference because it was a decision on the
merits and the process employed by the state court was not
state court has addressed the merits of a claim raised in a
federal habeas corpus petition, a federal court may not grant
the petition on that particular claim unless the state
court's adjudication was contrary to, or an unreasonable
application of, clearly established federal law, or was based
on an unreasonable determination of the facts presented at
the trial. 28 U.S.C. § 2254(d)(1)-(2). This test erects
a "formidable barrier to federal habeas relief for
claims adjudicated on the merits. Burt v. Titlow.
134 S.Ct. 10, 16 (2013). Under this standard, for a state
prisoner to obtain habeas relief, he "must show that the
state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Harrington v. Richter. 562 U.S. 86, 103 (2011).
evaluation of whether a state court decision is
"contrary to" or "an unreasonable application
of federal law is based upon an independent review of each
standard. See Williams v. Tavlor. 529 U.S. 362,
412-13 (2000). A state court determination violates the
"contrary to" standard if it "arrives at a
conclusion opposite to that reached by [the United States
Supreme] Court on a question of law or if the state court
decides a case differently than [the United States Supreme]
Court has on a set of materially indistinguishable
facts." Id. at 413.
the "unreasonable application" clause, the writ
should be granted if the federal court finds that the state
court "identifies the correct governing legal principle
from [the United States Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case." Id. at 413. A federal
court should review the state court determination with
deference; a federal court cannot grant the writ simply
because it concludes that the state court incorrectly applied
the legal standard. Woodford v. Visciotti. 537 U.S.
19, 24 (2002). Rather, "the federal habeas scheme ...
authorizes federal court intervention only when a state-court
decision is objectively unreasonable." Id. at
determining whether the state court's decision was based
on an unreasonable determination of the facts presented at
the trial, a federal court reviewing a habeas petition
"presume[s] the [state] court's factual findings to
be sound unless [petitioner] rebuts 'the presumption of
correctness by clear and convincing evidence.'"
Miller-El v. Dretke.545 U.S. 231, 240 (2005)
(quoting 28 U.S.C. 2254(e)(1)); see, e.g., Lenz v.
Washington.444 F.3d 295, 300-01 (4th Cir. 2000).
"The Supreme Court has found state factual findings
unreasonable under § 2254(d)(2) when the direction of
the evidence, viewed cumulatively, was 'too powerful to
conclude anything but [the petitioner's factual
claim],' and when a state court's finding was