Gordon v. Braxton
Filing
40
MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 05/14/2013. (jlan)
H
IN THE UNITED STATES DISTRICT COURT FOR THE
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I 4 2013
EASTERN DISTRICT OF VIRGINIA
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Alexandria Division
Jerome Steven Gordon,
Petitioner,
v.
Daniel Braxton,
)
)
)
)
)
)
l:12cv834(LO/TRJ)
Respondent.
MEMORANDUM OPINION
Jerome Steven Gordon, 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
conviction of solicitation of child pornography and carnal knowledge entered on a plea of no
contest in the Circuit Court of the County of Chesterfield. On November 2,2012, respondent
filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Gordon was given
the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th
Cir. 1975) and Local Rule 7(K), and he has filed both a replywith supporting exhibits and a
Motion to Dismiss Respondent's] Motion and Rule 5 Answer. On January 11, 2013, petitioner
submitted a Motion for Leave of Court to Amend Petition, which was granted by Order dated
February 1, 2013. Respondent filed a Supplemental Motion to Dismiss on February 19, again
accompanied by the appropriate Roseboro noticeto petitioner. After obtaining an extension of
time to do so, petitioner filed a Brief in Opposition to Supplemental Motion to Dismiss and a
Motion for Leave of Court to Enter Summary Judgment on March 19, 2013. For the following
reasons,respondent's Motion and Supplemental Motion to Dismiss will be granted, and the
petition will be dismissed. Petitioner's Motion to Dismiss ... Rule 5 Answer and Motion ... for
Summary Judgment will be denied.
I. Background
On July 23,2009, petitioner pleadedno contest to one count of solicitation of child
pornography and one count of carnal knowledge. On November 3, 2009, petitioner was
sentenced to serve thirty (30) years in prison with eight (8) years suspended on the solicitation
count, and five (5) years on the carnal knowledgecharge. Case Nos. CR09F00152-01 and
CR09F00165-02. Petitioner took no direct appeal.
On October 1,2010, petitioner filed an application for a state writ of habeas corpus in the
trial court. The court entered a detailed order dismissing the claims on the merits on January 26,
2012. Petitioner sought review of that decision by the Supreme Court of Virginia, which refused
his petition for appeal by Order dated June 28,2012. Gordon v. Braxton. R. No. 120521 (Va.
June 28,2012).
Gordon then turned to the federal forum and timely filed this application for § 2254
relief,1 raising the following claims:
1.
He received ineffective assistance of counsel at
sentencing when his attorney failed to review the
court file and determine that petitioner had a history
of prior sexual assaults.
'Upon initial review of the petition, it appeared to be time-barred, and petitioner wasallowed an
opportunity to show cause why it should not be dismissed on that basis. Dkt. 5. Petitioner explained
that his state habeas corpus application was conditionally filed on October 4, 2010 and remained
pending for a month under a temporary case number until he paid the appropriate filing fee. Dkt.
9. Respondentwasprovidedan opportunityto respond,and has informed the Court that independent
investigation determined that the facts related by petitioner are materially correct, and that the
federal petition accordingly was timely filed. Resp. Brief at 1, n. 1.
2.
He received ineffective assistance ofcounsel when his
attorney failed to object to the Commonwealth's
argument that he gave alcohol and tobacco to his prior
victims.
3.
He received ineffective assistance ofcounsel when his
attorney failed to seek an independent psychosexual
evaluation.
4.
He received ineffective assistance ofcounsel when his
attorney failed to notice a direct appeal.
5.
The
evidence
was
insufficient
to
sustain
the
convictions.2
As noted above, respondent has filed a Motion to Dismiss and a Supplemental Motion to
Dismiss, and petitioner has replied. All of the claims raised have been exhausted in the state
forum.3 Accordingly, this matter is now ripe for review.
II. Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas petition,
a federal court may not grant the petition based on the claim unless the state court's adjudication
is contrary to, or an unreasonable application of, clearly established federal law, or based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is
2The insufficient evidence claim was added when petitioner's motion for leave to amend the
initial petition was granted. Dkt. 26,29.
3Before bringing a federal habeas petition, a stateprisoner must first exhaust his claims in the
appropriate state court. See 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose v.
Lundv. 455 U.S. 509 (1982); Preiser v. Rodriguez. 411 U.S. 475 (1973). To comply with the
exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round ofthe State's established appellate review
process." O'Sullivan v. Boerckel. 526 U.S. 838,845 (1999). Thus, a petitioner convicted in Virginia
must first have presented the same factual and legal claims raised in his § 2254 application to the
Supreme Court ofVirginia on direct appeal, or in a state habeas corpus petition. See, e.g.. Duncan
v. Henrv. 513 U.S. 364 (1995).
"contrary to" or "an unreasonable application of federal law requires an independent review of
each standard. See Williams v. Tavlor. 529 U.S. 362.412-13 (20001 A state court's
determination runs afoul of 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." kL. at 413. Under 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 Supreme] Court's decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id Importantly, this standard of reasonableness is an objective one.
Id at 410. Under this standard, "[t]he focus of federal court review is now on the state court
decision that previously addressed the claims rather than the petitioner's free-standing claims
themselves." McLee v. Angelone. 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
III. Analysis
In his first four federal claims, petitioner argues that he received ineffective assistance of
counsel. To establish ineffective assistance of counsel, a petitioner must show that (1)
"counsel's performance was deficient" and (2) "the deficient performance prejudiced the
defendant." Strickland v. Washington. 466 U.S. 668.687 (1984V To satisfy the deficient
performance requirement, a petitioner must show that "counsel's representation fell below an
objective standard of reasonableness" id at 688, and that the "acts and omissions" of counsel
were, in light of all the circumstances, "outside the range of professionally competent
assistance." Id. at 690. Such a determination "must be highly deferential," with a "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." ]d at 689; see also. Burket v. Angelone. 208 F.3d 172,189 (4th Cir. 2000)
(reviewing court "must be highly deferential in scrutinizing [counsel's] performance and must
filter the distorting effects of hindsight from [its] analysis"); Spencer v. Murray. 18 F.3d 229,
233 (4th Cir. 1994) (court must "presume that challenged acts are likely the result of sound trial
strategy."). To satisfy the prejudice prong, a "defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland. 466 U.S. at 694. "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id; accord. Lovitt v. True. 403 F.3d 171,181 (4th
Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created
the possibility of prejudice, but rather "that they worked to his actual and substantial
disadvantage, infecting his entire trial with errors of constitutional dimension." Murray v.
Carrier. 477 U.S. 478,494 (1986) (citations omitted, emphasis original). The two prongs of the
Strickland test are "separate and distinct elements of an ineffective assistance claim," and a
successful petition "must show both deficient performance and prejudice." Spencer. 18 F.3d at
233. Therefore, a court need not review the reasonableness of counsel's performance if a
petitioner fails to show prejudice. Ouesinberrv v. Tavlore. 162 F.3d 273, 278 (4th Cir. 1998).
The two-part Strickland test also "applies to challenges to guilty pleas based on
ineffective assistance of counsel." Hill v. Lockhart. 474 U.S. 52, 58 (1985). In the context of a
guilty plea or its equivalent, the "performance" prong of the Strickland test 'is nothing more than
a restatement of the standard of attorney competence already set forth in ... McMann v.
Richardson.' 397 U.S. 759, 771 (1970), that is, whether the advice of counsel "was within the
range of competence demanded of attorneys in criminal cases." Id. at 58-59. With regard to the
"prejudice" prong in the context of a guilty plea, a petitioner must show that, "but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to trial." Id at 59; see
also Burket. 208 F.3d at 190.
In his first claim, Gordon argues that counsel provided ineffective assistance when he
failed to review the court file and determine that petitioner had a history of prior sexual assaults.
He reasons that as a result, counsel's ability to respond to the Commonwealth's "aggravation
case" was "seriously compromise^]." Petitioner rightfully does not contend that counsel should
have objected to the introduction of the Commonwealth's aggravation evidence at sentencing,
see Thomas v. Commonwealth. 18 Va. App. 656, 658-59,446 S.E.2d 469,471 (1994) (en banc)
(trial judge may rely on past convictions in determining appropriate sentence); instead, petitioner
argues that counsel should have introduced evidence concerning petitioner's "most unfortunate
childhood" to counter the damaging effect of the Commonwealth's submissions. Pet. at
unnumbered p. 12. When petitioner made this same argument in the state habeas corpus
proceeding, it was rejected on the following holding:
On Petitioner's third claim - that counsel failed put on mitigating
evidence at sentencing - the Court does not see that a showing has
been made that counsel's representation fell below an objective
standard of reasonableness, nor is there any reasonable probability
that but for any errors of counsel, the result in Peititioner's case
would have been different.
Petitioner claims that counsel did not put on enough mitigating
evidence on his behalf. The transcript of the sentencing hearing
shows that counsel did offer mitigating evidence when he called
petitioner's brother to testify. The transcript also shows that the
testimony had an impact on the Court in its sentencing decision, as
the trial judge referenced Peititioner's brother when delivering his
sentence.
Here, counsel did put on mitigating evidence at sentencing, and that
mitigating evidence did influence the Court's decision. Petitioner
pleaded no contest to the charges pursuant to a plea agreement. At
the sentencing hearing, the Court's upward departure from the
guidelines was based on Peititioner's record, the circumstances ofthe
offense, and the report and evaluation ordered pursuant to Va. Code
§ 19.2-300. There has been no showing that either ofthese outcomes
would have been different had counsel presented additional
mitigating evidence.
Order 1/26/11 at 3.4
For the reasons which were clearly articulated in the foregoing order, petitioner's claim
that counsel's failure to provide additional mitigating evidence at sentencing amounted to
ineffective assistance is without merit. It is well established in federal jurisprudence that
"'strategic choices made [by counsel] after thorough investigation ... are virtually
unchallengeable....'" Gray v. Branker. 529 F.3d 220, 229 (4th Cir.), cert, denied. 129 S. Ct. 1579
(2009), quoting Strickland. 446 U.S. at 690-91. In particular, decisions concerning the calling of
witnesses are matters of strategy left to the attorney, and ordinarily cannot constitute ineffective
assistance. Jones v. North Carolina. 547 F.2d 808 (4th Cir. 1977). Because courts recognize that
"often, a weak witness ... is not merely useless but, worse than that, may detract from the strength
of the case by distracting from stronger arguments," United States v. Terry. 366 F.3d 312,318
(4th Cir. 2004), it is virtually universally held that "calling some witnesses and not others is the
epitome of a strategic decision." Chandler v. United States. 218 F.3d 1305,1314 (11th Cir.
4Because the SupremeCourt of Virginia refused furtherreview ofthe trial court's order without
comment, Gordon v. Braxton, supra, the trial court's was the last reasoned state court decision on
the claims, and its reasoning is imputed to the Supreme Court. Ylst v. Nunnemaker. 501 U.S. 797,
803 (1991).
2000).
In this case, as the state court noted, petitioner's older brother Victor testified at
sentencing that petitioner was a homeowner, a hard worker who was "very well liked" by his
peers, and a "good person." Tr. 10/20/09 at 15 -18. Victor explained that petitioner "ha[d] been
through a lot in his childhood, a lot of stuff he hasn't dealt with," and that "coming up through
childhood in the family, things happened, things I didn't even find out about until years later. So
it has affected me just finding out what happened to him. I know it affected him." ]d. at 17-18.
The Court clearly was moved by Victor's testimony, because at its conclusion, the Ccourt
observed, "I know this is hard for you sir, and the depth of your love for your brother comes
through and I appreciate your testimony. Thank you very much." Id. at 19. In expressing its
reasoning for the sentence to petitioner, the Court observed, " I look at you[r] brothers and your
sister, and you seem like you come from good people. I can tell that they are good folks." Id at
26. Under these circumstances, it is apparent that the Court was made aware through Victor's
testimony of petitioner's "unfortunate childhood," and there is no indication that additional
testimony in that regard would have resulted in a lesser sentence. Indeed, immediatelyafter
observing that petitioner appeared to "come from good people" who were "good folks," the
Court opined that petitioner himself is "a despicable character in our society ... To pray [sic] on
children is horrible." Id. For these reasons, the state court's denial of relief on petitioner's first
claim was both factually reasonable and in accord with the controlling authorityof Strickland,
upon which the court expressly relied. Order 1/26/11 at 1. Therefore, the same result must be
reached here. Williams. 529 U.S. at 412 - 13.
In his second claim, petitioner contends that his counsel provided ineffective assistance at
8
sentencing when he failed to object to the Commonwealth's argument that petitioner gave
alcohol and tobacco to his prior victims. The state habeas court rejected this argument on the
following holding:
Regarding Petitioner's past behavior, Petitioner contends statements
that he gave alcohol and tobacco to his victims were impermissible
because he was never charged with delinquency and that the
suggestion that Petitioner's sexual misconduct was related to alcohol
and tobacco was never raised at trial. After reviewing the sentencing
transcript, Petitioner appears to be referring to a statement by the
prosecutor that one ofPetitioner's previous victims had reported that
the Petitioner had picked him up and purchased him alcohol. The fact
that the Petitioner was never convicted of providing alcohol to a
minor does not make this statement, which was expanding on the
report submitted to the Court, inadmissible. Had counsel objected to
this statement, the objection would likely have been overruled. Even
if it was sustained, there is no showing that it would have affected the
outcome ofthe proceeding, as it was only raised for one prior offense.
Because objections to these statements would likely have been
overruled, and even if they had been sustained would not have
changed the outcome of the proceeding, the Court finds that
Petitioner has failed to meet either of the Strickland prongs.
Order 1/26/11 at 5-6.
For the reasons expressed in the foregoing order, it is apparent both that counsel's failure
to object to the prosecutor's statement was not objectively unreasonable, and that there was no
reasonable probability that it changed the outcome of the sentencing proceeding. Cf Strickland.
466 U.S. at 694.5 Therefore, petitioner has failed to demonstrate that the denial of relief on this
claim was factually unreasonable or a misapplication of controlling federal principles, and the
claim likewise must be denied here. Williams. 529 U.S. at 412 -13.
5It is worthyof note that the samejudge presided at trial and sentencing and in the habeas corpus
action.
In his third claim, petitioner asserts that his attorney provided ineffective assistance by
failing to seek an "independent" psychosexual evaluation of petitioner. Petitioner reasons that
but for this alleged deficiency, the outcome of his sentencing "may" have been different. The
state habeas court found no merit to this position:
On Petitioner's second claim - counsel failed to do his own evaluation
of Petitioner for sentencing - the Court does not see that a showing
has been made that counsel's representation fell below an objective
standard of reasonableness, nor is there any reasonable probability
that but for any errors of counsel, the result in the Petitioner's case
would have been any different.
Once the Court accepted the plea agreement and found Petitioner
guilty of both charges, the Court ordered the preparation of a
presentence report and a sex-offender evaluation pursuant to Va.
Code § 19.2-300. Petitioner claims that if counsel had offered 'his
own' evaluation, then there would have been two reports presented
to the Court at sentencing. However, the language of Va. Code §
19.2-300 and Va. Code § 19.2-301 indicates that these reports and
evaluations are to be ordered by the Court, not by the parties. The
parties may request that the Court order one ifthe Court has not done
so on its own initiative. Counsel was under no obligation to petition
the Court to order a second evaluation after it had already ordered
one. Therefore, the Court finds that Petitioner has not shown that
counsel's performance has not [sic] fallen below and objective
standard of reasonableness with regards to this ... claim.
Additionally, the transcript of the sentencing hearing shows that
counsel stated that the prosecutor 'is going to ask for some significant
amendments to it ...' The fact that the prosecution asked for
significantchanges to the report implies that the report was favorable
to Petitioner. Even if there were another report, it would have either
been cumulative or detrimental to the Petitioner. The Petitioner has
not made a showing that the outcome of the proceeding would have
been any different if counsel had done his own evaluation.
Order 1/26/11 at 3-4.
For the reasons which were thoroughly explained by the state court, the option of
requesting an additional psychological report wasnot available to counsel, and even if it had
10
been, it would not have favored petitioner or positively affected the outcome of the sentencing
proceeding. Under such circumstances, ineffective assistance of counsel clearly has not been
demonstrated. See Povner v. Murray. 964 F.2d 1404,1419 (4th Cir.) (counsel not ineffective for
failing to 'shop around' for additional psychological opinions), cert, denied. 506 U.S. 958 (1992).
In his fourth claim, petitioner argues that he received ineffective assistance of counsel
when his attorney failed to notice a direct appeal. When petitioner made this same contention in
his state habeas corpus action, the trial court found it to be without merit, as follows:
On Petitioner's sixth claim - that counsel failed to file an appeal when
instructed to do so by Petitioner - the Court does not see that a
showing has been made that counsel's representation fell below an
objective standard of reasonableness.
Petitioner claims that he instructed counsel to file an appeal.
Petitioner also claims that the affidavits of counsel and himself are
conflicting. However, the evidence indicates otherwise. Petitioner's
own affidavit indicates that he merely 'asked [counsel] is there
anythingelse we can do from this point...' An affidavit submitted by
counsel indicates that he spoke with Petitioner and indicated that he
had not been retained for post-conviction motions, and that
Petitioner's family informed him that they were going to hire another
attorney to handle these matters. These two affidavits are not
conflicting- neither shows nor suggeststhat Petitioner ever instructed
Counsel to file an appeal.
At trial, the Petitioner pleaded no contest. The transcript reflects the
following:
THE COURT: And finally, do you understand that by
entering these pleas of no contest you may be waving
[sic] your right to appeal the Court's decision?
THE DEFENDANT: Yes, sir.
THE COURT: And are you satisfied with your
lawyer's services?
THE DEFENDANT: Yes, sir.
11
THE COURT: He's done everything you've asked
him to do?
THE DEFENDANT: Yes, sir.[6]
The evidence shows that the counsel was not retained for post
conviction motions, and that Petitioner did not directly ask or instruct
Counsel to file an appeal. Therefore, the Court cannot find that
counsel's performance fell below an objective standard of
reasonableness when he did not file one.
Order 1/26/11 at 6.
For the reasons which were amply explained by the state court, petitioner's current
allegation that he instructed counsel to file a direct appeal finds no support in the record.
Counsel's failure to do so thus cannot support a claim of ineffective assistance, and the state
courts' denial of relief on this claim must not be disturbed.
Williams. 529 U.S. at 412 -13.
In his fifth claim, petitioner argues that he is entitled to § 2254 relief because the evidence
was insufficient to sustain the convictions. When petitioner presented this same argument to the
state court in his habeas corpus application, it was rejected on the following holding:
Petitioner claims that the evidence was insufficient to convict him of
the offenses he was charged with. However, Petitioner pleaded no
contest at trial. Petitioner was voire [sic] dired extensively by the
Court to ensure he was entering a plea of no contest freely and
voluntarily. The transcript reflects, in relevant part:
THE COURT: Are you pleading no contest because
you believe the evidence that the Commonwealth
would present would be sufficient to convict you of
these offense?
THE DEFENDANT: Yes, sir.
Petitioner pleaded no contest and stated affirmatively that the
6SeeTr. 7/23/09 at 15.
12
evidence that would be presented would be sufficient to convict him.
He cannot now come before the Court and argue that the evidence
would have been insufficient to convict him.
Petitioner cannot
circumvent the trial and appeal process through a writ of habeas
corpus. See Slavton v. Parrigan. 215 Va. 27,205 S.E.2d 680 (1974).
The Court dismisses Petitioner's claim of insufficiency of the
evidence.
As respondent argues, petitioner's claim of insufficient evidence is procedurally defaulted
from federal review as the result of the foregoing holding by the trial court. A state court's
finding of procedural default is entitled to a presumption of correctness, Clanton v. Muncv. 845
F.2d 1238,1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)), provided two foundational
requirements are met, Harris v. Reed. 489 U.S. 255, 262-63 (1989). First, the state court must
explicitly rely on the procedural ground to deny petitioner relief. Id. Second, the state
procedural rule furnished to default petitioner's claim must be an independent and adequate state
ground for denying relief. Id 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 claims absent a
showing of cause and prejudice or a fundamental miscarriage ofjustice, such as actual innocence.
Harris. 489 U.S. at 260. The Fourth Circuit has consistently held that "the procedural default rule
set forth in Slavton constitutes an adequate and independent state law ground for decision."
Mu'min v. Pruett. 125 F.3d 192,196-97 (4th Cir. 1997). Here, then, the state courts' express
finding that Slavton barred initial review of an insufficient evidence claim on habeas review also
precludes federal review of the claim. Clanton. 845 F.2d at 1241.
A federal court may not review a procedurally barred claim absent a showing of cause
and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S.
at 260. The existence of cause ordinarily turns upon a showing of (1) a denial of effective
13
assistance of counsel, (2) a factor external to the defense which impeded compliance with the
state procedural rule, or (3) the novelty of the claim. See Coleman. 501 U.S. at 753-54; Clozza
v. Murray. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton. 845 F.2d at 1241-42. Importantly, a
court need not consider the issue of prejudice in the absence of cause. Kornahrens v. Evatt. 66
F.3d 1350, 1359 (4th Cir. 1995). cert, denied. 517 U.S. 1171 (1996).
In his Brief in Opposition of Supplemental Response, petitioner appears to argue that his
insufficient evidence claim should not be barred because the Court has misapprehended the
nature of the claim. Specifically, petitioner asserts that he "amended his federal Petition, under
Subheading ineffective assistance of counsel." Dkt. 39 at 1. He then argues that counsel
provided ineffective assistance at trial by failing to inform petitioner of the essential elements of
the crime of solicitation of child pornography. Id. at 1-2. This argument fails for several
reasons. First, petitionerclearly stated in his Motion to Amend that he sought permission to
amend the petition by adding the claim of insufficiency of the evidence that was exhausted in
state court and adjudicated at "1/26/11 Letter Opinion at 6." Dkt. 22 at 2. That claim was a
straightforward argument that the evidence was insufficient to sustain the conviction, which as
discussed above was determined by the state habeas court to be procedurally defaulted under
Slavton. Careful review of petitioner's state habeas corpus application reveals no instance where
he argued, as he now apparently attempts to do, that counsel provided ineffective assistance for
failing to apprise him of the essential elements of a crime with which he was charged. Thus,
even if petitioner did intend to assert such a claim in his Motion to Amend, the claim at this
juncture would be simultaneously unexhausted and procedurally barred from federal
consideration. Cladeett v. Angelone. 209 F.3d 370, 378 - 79 (4th Cir. 2000). Accordingly,
14
petitioner has made no showing of cause and prejudice or a fundamental miscarriage ofjustice,
and claim five of the petition is procedurally barred from review on the merits.
Lastly, it is noted that petitioner argues in his Brief in Opposition of Supplemental
Motion to Dismiss that "an evidentiary hearing is necessary" in this case. Dkt 39 at 3. However,
pursuant to the Supreme Court's decision in Cullen v. Pinholster.
U.S.
,131 S.Ct. 1388
(April 4,2011), an evidentiary hearing is not warranted.
IV. Conclusion
For the foregoing reasons, respondent's Motion to Dismiss and Supplemental Motion to
Dismiss will be granted, and this petition will be dismissed, with prejudice. An appropriate Order
shall issue.
Entered this
J *-T
J^
day of __V^M
day of fV*
2013.
^
Alexandria, Virginia
/s/
Liam O'Grady
H
United States District Judge
15
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