United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young United States Magistrate Judge
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
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.)
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.
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.)
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,
"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.)
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
EXHAUSTION AND ...