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Godfrey v. Clark

United States District Court, E.D. Virginia, Richmond Division

July 10, 2019

RASH AD GODFREY, Petitioner,
v.
HAROLD W. CLARK, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge

         Rashad Godfrey, a Virginia state prisoner proceeding pro se, brings this petition pursuant to28U.S.C. § 2254 ("§2254 Petition," ECF No. 1) challenging his 2017 convictions in the Circuit Court of the City of Norfolk, Virginia ("Circuit Court"). Godfrey argues that he is entitled to relief on the following grounds:[1]

Claim One: "The detective had no evidence and tried to manipulate my words. . . . When the detective searched my mother's house, they found nothing besides pills I already had. The only thing from the victim I had were the pills we went to buy," (§ 2254 Pet. 5.)
Claim Two: "The victim's story changed multiple times during statements," such as when "[t]he victim said we robbed him and pistol whipped him and his girlfriend had a knife to her neck. ... If they were really attacked, [the victim] would have obviously had bruises on his head and [his girlfriend] would have had marks on her neck." (Id. at 7.)
Claim Three: "I acted [in] self-defense due to the victim trying to rob me." (Id. at 8.)

         Respondent moves to dismiss on the ground that Godfrey's claims are procedurally defaulted and barred from review here. Despite the provision of notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Godfrey has not responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 13) will be GRANTED and Godfrey's § 2254 Petition (ECF No. 1) will be DENIED because Godfrey's claims are procedurally defaulted.

         I. PROCEDURAL HISTORY

         On October 31, 2016, Godfrey pled guilty in the Circuit Court to one count of robbery and one count of use of a firearm in the commission of a felony. (See ECF No. 15-1, at 7.) On April 3, 2017, the Circuit Court sentenced Godfrey to an aggregate term of thirteen years of incarceration, with eight years suspended. (Id. at 11.)

         Godfrey, proceeding with counsel, appealed, raising the following assignment of error: "The trial judge abused his discretion by sentencing the petitioner to ten years with all but two years suspended on the robbery and three years with no time suspended on the use of a firearm charge." Petition for Appeal 4, Godfrey v. Commonwealth, No. 0671-17-1 (Va. Ct App. filed July 21, 2017) (capitalization omitted) (citation omitted). On October 11, 2017, the Court of Appeals of Virginia denied the petition for appeal, holding:

"We review the trial court's sentence for abuse of discretion." Scott v. Commonwealth, 58 Va.App. 35, 46, 707 S.E.2d 17, 23 (2011). "[W]hen the trial court imposes a sentence that does not exceed the maximum sentence allowed by statute, die sentence will not be overturned on appeal as an abuse of discretion." Rawls v. Commonwealth, 272 Va. 334, 351, 634 S.E.2d 697, 706 (2006).
The sentences imposed by the trial judge were within the ranges set by the legislature. See Code §§ 18.2-53.1 and 18.2-58. It is within the trial court's purview to weigh any mitigating evidence presented by appellant and to determine whether alternatives to incarceration are advisable. Accordingly, the judge did not abuse his discretion.

(ECF No. 15-2, at 1.)

         On June 14, 2018, the Supreme Court of Virginia refused the petition for appeal. (ECF No. 15-3, at 1.) On August 17, 2018, the Court received the instant § 2254 Petition. (§ 2254 Pet. 1.)

         II. EXHAUSTION AND ...


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