Moody v. Director of Virginia Department of Corrections

Filing 19

MEMORANDUM OPINION. Signed by District Judge Gerald Bruce Lee on 3/3/2016. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Marvin J. Moody,
Petitioner,

I:14cvl581 (GBL/TCB)

V.

Director, Virginia Dep't of Corrections,
Respondent.
MEMORANDUM OPINION

This Matter comes before the Court on respondent's Motion to Dismiss this petition for a

writ of habeascorpus pursuantto 28 U.S.C. § 2254, whichwas filed pro se by MarvinJ. Moody,

a Virginia inmate. Petitioner challenges the constitutionality of convictions of statutory burglary
and grand larcenyenteredon a jury verdictin the Circuit Court for the City of Richmond. After
respondent moved to dismissthe petition. Moodywas 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 filed a Brief in Oppositionto Respondent's Brief. Dkt. 16. After careful consideration,
for the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will
be dismissed with prejudice. Also pending are motions by the petitioner to strike respondent's

procedural defenses and for an evidentiary hearing, both of which will be denied.
I. Background

On June 15,2012, following a jury trial, petitionerwas convicted of one count each of

statutory burglary and grandlarceny. CaseNos. CRl l-F-5781 and -57814. A second statutory
burglary charge was dismissed afterthejury couldnot reacha unanimous verdict. Pursuant to the
juiy's recommendation, the court sentenced petitioner to a total of twelve (12)years

1

incarceration. Resp. Ex. 6, Sub-Ex. 1.^ The facts underlying theconvictions were described by
the Virginia Court of Appeals as follow:

[T]heevidence provedthat several itemsweretakenfroma residence
in Richmond in March of 2010. The items, including the victim's

passport, checkbook, bankrecords, jewelry, and mail,werefound in
appellant'smotel roomandhad a valueof morethan $200. Various
papersbearingappellant's namewere found in the motel room. The
only key to the motel room was found in appellant's pocket.
Appellant,a convictedfelon,deniedtakingthe items,claiminghe had
shared the motel room with another man. No documents or personal
effects bearing the other man's name were found in the motel room.

Moodv V. Commonwealth. R. No. 1211-12-2 (Va. Ct. App. Feb. 5,2013), slip op. at 5-6; Resp. Ex.
6, Sub-Ex. 2.

Moodyprosecuted a direct appeal, raisingclaimsthat the trial court erred by denying his
motion to dismiss his court-appointed counsel and that the evidence was insufficientto sustain
the grand larceny conviction. The petition for appeal was denied on Feb. 5,2013, id, and Moody
took no direct appeal to the Supreme Court of Virginia.

On April 3,2012, beforethe convictions had become final, Moodyfiled a petition for a
state writ of habeas corpus in the SupremeCourt of Virginia. Beforethe respondent was directed
to respond, petitioner requested leave to withdraw the petition, and the Court accordingly
dismissed the petition on August 6,2012. Resp. Ex. 5.

On February 28,2013, petitioner filed a second application for a state writ of habeas

corpus, raising numerous claims and subclaims that are accurately reflected in the respondent's

'For reasonswhich are not clear,respondent's exhibitswere not docketedin this court in the order
in whichtheywerearranged by respondent. Therefore, the exhibitnumbersassignedbyrespondent
and those on the court's docket are not the same. To clarify, the docket numbers referenced in this
Memorandum Opinion are those assigned on the court's docket.

Briefin Support of Motion to Dismiss. Resp. Br. at 2-6. The Supreme Court of Virginia
dismissed the petitionon December 3,2013. Moody v. Dir.. Dep*t of Corrections. R. No.

130372 (Va. Dec. 3,2013); Resp. Ex. 2. Petitioner's motion for rehearing of that resultwas
denied on March 6,2014. Id

Petitioner then turned to the federal forum and timely filed the instant application for

reliefpursuant to 28 U.S.C.§ 2254 onNovember 2,2014,^ largely reiterating the claims he raised
before the Supreme Court of Virginia, as follow:

1.

He was denied due process when the name of the sole testifying
witness on the indictment was amended outside his presence and the
presence of the issuing court.
a.

Trial counsel was ineffective for failing to move for
continuance based on the amended indictment, to

object to the amendment, to review the amended
indictment, or to subpoena the new witness stated on
the amended indictment.

b.
2.

Appellate counsel failed to raise the issue on appeal.

He was denied due process when the trial court failed to remove
counsel and forced him to proceed to trial despite having a conflict
with counsel.

3.

He was denied due process when his speedy trial rights were violated.
Trial counsel provided ineffective assistance by:
a.

Trial counsel failed to follow the court rule that

motions must be filed seven (7) days prior to trial.
b.

4.

Appellate counsel failed to raise this issue on appeal.

He was denied due process because his jury was not impartial.

^For federal purposes, a pleading submitted by an incarcerated litigant generally is deemed filed
when the pleading is delivered to prison officials for mailmg. Lewis v. Citv of Richmond Police
Dep't. 947 F.2d 733 (4th Cir. 199n: see also Houston v. Lack. 487 U.S. 266 (1988). ^

Pet. at 16.

a.

Trial counsel failed to object, to ask for a mistrial, or
to ask for voir dire.

b.

5.

Appellate counsel failedto raisethis issueon appeal.

He was denied due process when new witnesses were added and called to
testify during trial.
a.

Trial counsel failed to object to the addition of new
witnesses.

b.
6.

Appellate counsel failed to raise the issue on appeal.

He was denied due process when the prosecution's main witness
violated the court's sequestration order.
a.

b.
7.

Trial counsel failed to object.

Appellate counsel failed to raise the issue on appeal.

He was denied due process when the prosecution failed to present
evidence of his prior "confessions" and questioned him regarding
statements he made to the police after he was arrested.
a.

Trial counsel failed to object or to provide any
evidence of the hidden confessions.

b.

c.

8.

Trial counsel failed to object to the prosecutor's
references to petitioner's post-arrest story at trial.

Appellate counsel failed to raise these issues on appeal.

He was denied due process when there was inappropriate contact with
the jury during deliberations.
a.

b.
9.

Trial counsel failed to object to the inappropriate
contact and failed to poll the jury.

Appellate counsel failed to raise the issue on appeal.

He was denied due process when there was insufficient evidence
presented to sustain either conviction.

a.

Trial counsel failed to move to strike the evidence at

the close of argument and failed to object to the
insufficiency ofthe evidence as to both crimes.

b.

Appellate counsel failed to raise the issue of the
insufficiency of the evidence on the burglary charge
on appeal.

10.

He was denied due process when the jury did not receive jury
instruction number 10 and were not told of the missing instruction
until after it had reached a verdict, and when the prosecutors failed to
give defense counsel the jury instruction to review.
a.

Trial counsel failed to inspect thejury instructions and
failed to give favorable jury uistructions, because all
of his proposed instructions were denied or
withdrawn.

b.

11.

Appellate counsel failed to raise the issue on appeal.

He was denied due process when prosecutors made discriminatory
statements during the sentencing phase.
a.

b.
12.

Trial counsel failed to object to the statements.

Appellate counsel failed to raise the issue on appeal.

He was denied due process when the court gave an improper response
to the jury's question during the sentencing phase.
a.

b.
13.

Trial coimsel failed to object.

Appellate counsel failed to raise the issue on appeal.

He was denied due process by the use of illegally-obtained
evidence.

a.

Trial counsel failed to object.

b.

Appellate counsel failed to raise the issue on appeal.

14.

He was denied due process by pre-indictment delay.
a.

Trial counsel failed to object or to move to dismiss
the indictment.

b.
15.

Appellate counsel failed to raise the issue on appeal.

Appellate counsel failed to see or to consult with petitioner about
his right to appeal, which caused a timely motion to set aside the
verdict to denied because counsel filed a notice of appeal v^thout
petitioner's knowledge.
11. Exhaustion and Procedural Bar

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in
the appropriate state court. 28 U.S.C. § 2254(b); Cranberry v Greer. 481 U.S. 129 (1987); Rose
V. Lundv. 455 U.S. 509 (1982). 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 roimd ofthe State's established appellate review process." O'Sullivan v. Boerckel.
526 U.S. 838, 845 (1999). A federal habeas claim is exhausted only when both the same legal

argument and the same supporting facts previously were presented to and ruled on by the highest
state court. Anderson v. Harless. 459 U.S. 4, 6-7 (1982"): see Pruett v. Thompson. 771 F. Supp.
1428,1436 (E.D. Va. 1991),

996 F.2d 1560 (4th Cir. 1993) (exhaustion is satisfied only

where the "essential legal theories and factual allegations advanced in federal court... [are] the

same as those advanced at least once to the highest state court."). 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. See Duncan v. Henrv. 513 U.S. 364 (1995).
Claims 5(a\ 10.13ral and 15

The respondent acknowledges that all ofpetitioner's present arguments were exhausted in

the state forum with the exception of four: claims 5(a) (counsel's failure to object to new

witnesses); 10(missing jury instruction); 13(a) (counsel's failure to object to illegally-obtained
evidence); and 15 (appellate counsel's failure to consuhwith petitioner regarding his appellate
rights). Although petitioner did not properly present theseclaims to the Supreme Court of
Virginia, they nonetheless are treatedas exhausted because the petitioneris now precluded from
raising them in state court.

Baker v. Corcoran. 220 F.3d 276,288 (4th Cir. 2000) ("A claim

that has not beenpresented to the highest statecourtnevertheless may be treatedas exhausted if
it is clear that the claim would be procedurally barred imder state law if the petitioner attempted
to present it to the state court.") Specifically, petitioner's unexhausted claims are procedurally
defaulted under Virginia Code § 8.01-654(B)(2), which bars successive state habeas applications.
The Fourth Circuit has "held on numerous occasions that the procedural default rule set forth in §

8.01-654(B)(2)constitutes an adequate and independent state-law ground for decision," Mackall

V. Aneelone. 131 F.3d442,446 (4thCir. 1997).^ Thefour unexhausted claims of this petition
(i.e.. claims 5(a), 10,13(a), and 15) thus are simxiltaneously exhausted and procedurally defaulted
from federal consideration. See Bassette v. Thompson. 915 F.2d 932 (4th Cir. 1990).

Due process and ineffective assistance claims
In addition, several ofpetitioner's claims are procedurally defaulted from federal

consideration because they were expressly determined to be procedurally barred in the state

habeas corpus action. Specifically, the Supreme Court of Virginia "clearly and expressly" found
that all ofthe due process arguments petitioner raised for the first time in the state habeas corpus

proceeding - that is, claims 1 and 3 through 13 - as well as ineffective assistance of counsel

^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
rulmg. Yeattsv. Aneelone. 166 F.3d 255,263-64 (1998).

claims 1(a), 10(a), 12 (a), 13 (a) and 14 (a) - were procedurally defaulted. Specifically, the Court
determined that claims 1,1(a), 5, the portion of claim7 relating to the alleged withholding of
petitioner's confession, 10,10(a), 12,12(a), 13,13(a) and 14and 14(a) werebarredfrom
consideration by Va. Code § 8.01-654(B)(2), which precludes consideration of a successive
habeas claim which was known to the petitioner at the time the earlier petition was filed. In
addition, claims 3,4,6, the portion of claim 7 relating to perjured testimony, 8, 9, and 11 were
barred by the rule announced in Slavton v. Parriean. 215 Va. 27,205 S.E.2d 680 (1974), cert,
denied. 419 U.S. 1108 (1975), that non-jurisdictional issues that could have been raised at trial
and on direct appeal are not cognizable on a petition for a writ of habeas corpus. The Fourth
Circuit has consistently held that both § 8.01-654(B)(2) and the Slavton rule constitute adequate
and independent state law grounds for a decision. Mackall. 131 F.3d at 446; Mu'min v. Pruett.

125 F.3d 192,196-97 (4th Cir. 1997). Therefore, due process claims 1 and 3 through 13, as well
as ineffective assistance of counsel claims 1(a), 10(a), 12(a), 13(a) and 14(a) are defaulted for
purposes of federal review.
Cause and prejudice

Federal courts may not review barred claims absent a showing of cause and prejudice or a
flmdamental miscarriage ofjustice, such as actual innocence. Harris v. Reed. 489 U.S. 255,260

(1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective
assistance of coimsel, (2) a factor external to the defense which impeded compliance with the
state procedural rule, or (3) the novelty of the claim. See Coleman v. Thompson. 501 U.S. 722,

753-54 (1991). Importantly, a court need not consider the issue of prejudice in the absence of
cause. See Komahrens v. Evatt. 66 F.3d 1350,1359 (4th Cir. 1995), cert, denied. 517 U.S. 1171
(1996).

In response to the Roseboro notice, petitioner filed a Briefin Opposition to Motion to
Dismiss. (Dkt. No. 16)In it, he argues that claims5(a), 10,13(a), and 15 shouldnot be deemed
defaulted because theywere exhausted in the state forum. However, as respondent argues, while
petitioner presented similarclaims to the Virginia Supreme Court, the arguments he makes in
this federal petitiondo not encompass the samefacts and legalarguments that were considered in
the state forum. See Resp. Brief at p. 10, n. 4. Under such circumstances, the claims are not
exhausted for purposes of federal review. Harless. 459 U.S. at 6-7.

As to claims 1,1(a), 5, the portion of claim 7 relating to the alleged withholding of

petitioner's confession, 10,10(a), 12,12(a), 13,13(a) and 14 and 14(a), petitioner argues that the
Supreme Court of Virginia erred in finding these claims barred firom consideration by Va. Code §
8.01-654(B)(2) because petitioner withdrew his first § 2254 petition before his convictions
became final, and "Virginia habeas corpus rules require there [to] be a sentence or conviction for
Virginia Code § 8.01-654(B)(2) to apply." (Dkt. No. 16 at p. 3) Petitioner cites no authority for
his interpretation of the statute, and the plain wording of the provision does not bear out his

position. Specifically, § 8.01-654(B) applies to "any such [habeas corpus] petition filed by a
petitioner held under criminal process;" no mention is made of the "criminal process" having to
consist of a final conviction or sentence. Subsection (2) of that provision requires that the

"petition shall contain all allegations of the facts of which are known to petitioner at the time of
filing," and states that "[n]o writ shall be granted on the basis of any allegation the facts of which
petitioner had knowledge at the time of filing any previous petition." Here, Moody's

trial occurred on March 14,2012, s^ Resp. Ex. 6, Sub-Ex. 1, and petitioner filed his first habeas

corpus petition on April 3,2012. By that time, then, petitioner had knowledge of all facts

pertaining to the conduct of the trial, and the Supreme Court ofVirginia did not err in applying

§ 8.01-654(B)(2) to bar claims 1,1(a), 5, the portion of claim 7 relating to the alleged

withholdingofpetitioner's confession, 10,10(a), 12,12(a), 13,13(a), 14 and 14(a) of this
petition.

Bassette. 915 F.2d at 937 ("This statute [§ 8.01-654(B)(2)] has been consistently

applied to bar claims which could have been raised in an earlier habeas proceeding, and it is clear
that five of the seven claims are based on facts knowledgeable to [petitioner] at the time of his
prior state petition....")

Lastly, petitioner asserts that claims 3,4,6, the portion of claim 7 relating to peijured
testimony, 8,9, and 11 were wrongfully barred by the rule of Slavton v. Parriean because
"counsel failed to raise the issues at trial and on appeal." (Dkt. No. 16 at 4). It appears that

petitioner may intend to rely on Martinez v. Rvan.

U.S.

, 132 S.Ct. 1309 (2012), where

the Supreme Court:
... held that a federal habeas petitioner who seeks to raise an
otherwise procedurally defaulted claim of ineffective-assistance-oftrial-counsel before tiie federal court may do so only if: (1) the
ineffective-assistance-of-trial-counsel claim is a substantial one; (2)
the *cause' for default *consist[s] of there being no counsel or only
ineffective counsel during the state collateral review proceeding'; (3)
'the state collateral review proceeding was the initial review
proceeding in respect to the ineffective-assistance-of-trial-counsel
claim'; and (4) state law requires 'requires that an ineffectiveassistance-of-trial-counsel claim be raised in an initial-review

collateral proceeding.

Fowler v. Jovner. 753 F.3d 446,461 (4th Cir. 2014), quoting Trevino v. Thaler. 569 U.S. at
133 S. Ct. 1911,1918 (2013).

Martinez does not apply to excuse the defaults of claims 3,4, 6, the portion of claim 7
relating to peijured testimony, 8,9, and 11 for two reasons. First, those claims all assert due

process violations rather than instances of ineffective assistance of counsel, so Martinez by its

plain language is inapplicable. Second, even if Martinez were to be read broadly to encompass
10

the due process implications of petitioner's corresponding claims of ineffective assistance, the
ineffective assistance claims themselves are not substantial, as will be discussed below, so

Martinezdoes not applyto excusetheir default. See Martinez. 132 S. Ct. at 1318. ("To
overcomethe default, a prisoner must also demonstrate that the underlying ineffective-assistanceof-trial-coxmsel claim is a substantial one, which is to say that the prisoner must demonstrate that
the claim has some merit.")

In summation, then, for the various reasons discussed above, claims 1,1(a), 3,4, 5, 5(a),

6, 7, 8, 9,10,10(a), 11,12,12(a), 13,13(a), 14(a), and 15 of this petition are procedurally barred
from consideration of the merits.
III. Merits Standard of Review

When a state court has addressed the merits of a claim raised in a federal habeas petition,
the 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 "contrary to" or "an unreasonable application of federal law requires an independent
review ofeach standard.

Williams v. Tavlor. 529 U.S. 362,412-13 (2000). A state court

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 ifthe state court

decides a case differently than [the United States Supreme] Court has on a set of materially
indistinguishable facts." Idaat 413. Under the "unreasonable application" clause, the writ should
be granted ifthe 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 ofthe prisoner's case." Id Importantly, this standard of reasonableness is an objective one.

11

Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court

decisionthat previously addressed the claimsrather than the petitioner's free-standing claims
themselves." McLee v. Aneelone. 967 F.Supp. 152,156 (E.D. Va. 1997^. appeal dismissed^ 139
F.3d 891 (4th Cir. 1998) (table).
IV. Analysis
A. Due Process Claim

As discussed above, all of petitioner's due process claims save one are defaulted. In

claim 2 - petitioner's sole federally-cognizable due process claim - he argues that the trial court
deprived him of due process by failing to allow his counsel to withdraw prior to trial. Petitioner
presented this argument to the Virgmia Court of Appeals on direct appeal and to the Supreme
Court of Virginia in the second habeas corpus proceeding. Because the Court of Appeals'
determination was the last reasoned state court decision on the claim at issue, it is appropriate to

look to its decision here. See Ylst v. Nunnemaker. 501 U.S. 797, 803 (1991). Specifically, it
held:

[Moody] failed to demonstrate a conflict ofinterest between him and
his trial counsel. Appellant's only identifiable complaint was that his
potential witnesses would not testify because of trial counsel's
inadvertent mistake ofincluding another client's information from a
form document in appellant's pleading. However, appellant never
gave counsel the names or information for any witnesses and would
not give the information to the trial court. Appellant failed to meet
his burden of proving good cause to relieve counsel and did not
establish a conflict of interest between him and trial counsel.

Accordingly, the trial court did not abuse its discretion by denying
appellant's motion to dismiss trial counsel and appoint new counsel.

Moodv V. Commonwealth, supra, slip op. at 2-3; Resp. Ex. 6, Sub-Ex. 2.
The foregoing holding was both factually reasonable and in accord with applicable

federal authorities. The record reflects that trial counsel mistakenly sent a pleading to Moody
12

that contained information pertinent to a former client. (Tr. 8-12) The trial courtthereafter
briefly voir diredMoody on the issue of whether he wasprepared to go to trial by asking, "You
don't want a continuance, correct?" Moody respondedthat he was only trying to have another
lawyer appointed. (T. 13)

Federallaw recognizes that "the purposeof providing assistance of counsel is simplyto
ensure that criminal defendants receive a fair trial, and... in evaluating Sixth Amendment claims,

the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with
his lawyer as such." Wheat v. United States. 486 U.S. 153 ,159 (1988). A defendant asserting a
conflict of interest with counsel bears the burden of showing: (1) an actual conflict of interest
that had (2) an adverse effect on counsel's performance. Mickens v. Tavlor. 535 U.S. 162,168

(2002); see also Cuvler v. Sullivan. 446 U.S. 335,348 (1980). Here, Moody has not satisfied
either component ofthis test.

To establish the existence of an actual conflict of interest, a petitioner "must show that
there was some plausible alternative defense strategy or tactic that might been pursued, an
alternative strategy that was inherently m conflict with or not undertaken due to the attorney's

other loyalties or interests." Guaraldi v. Cunningham. 819 F.2d 15,17 (1st Cir. 1978). Moody

makes no such showing here. Nor does Moody suggest, much less establish,that counsel failed

to pursuea plausible defense strategy or tactic on account of an actual conflict of interest. Cf.
Burket v. Aneelone. 208 F.3d 172,186 (4th Cir. 2000). Therefore, the state court's rejection of

Moody's claim that an actual conflictof interestwith counsel deprived him of due processwas in
accord with the authorities, and no relief is warranted here. Williams. 529 U.S. at 412-13.
B. Ineffective assistance of counsel claims

In the remainder of his cognizable claims. Moody arguesthat he received ineffective

13

assistance by bothtrial and appellate counsel. To establish ineffective assistance of counsel, a
petitioner mustshow that (1) "counsel's performance was deficient" and (2)"the deficient
performance prejudiced the defendant." Strickland v. Washington. 466 U.S. 668,687 (1984).
To prove that counsel's performance was deficient, a petitionermust show that "counsel's
representation fell below an objective standard ofreasonableness" 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." Id at 689; see also. Burket. 208 F.3d at 189 (reviewing
court "must be highly deferential in scrutinizing [counsel's] performance and must filter the
distorting effects of hindsight firom [its] analysis"); Spencer v. Murrav. 18 F.3d 229,233 (4th
Cir. 1994) (court must "presume that challenged acts are likely the result of soimd trial
strategy.").

To satisfy Strickland's 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 ofprejudice, but rather "that they worked to his actual and substantial
disadvantage, infecting his entire trial with errors of constitutional dimension." Murrav 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

14

233. Therefore, a court need not review the reasonableness of counsel's performance if a

petitionerfails to show prejudice. Ouesinberrv v. Tavlor. 162 F.3d 273,278 (4th Cir. 1998).
Claim 3(a)

In claim 3(a) of this petition, Moody argues that counsel provided ineffective assistance
by filing a speedy trial motion on the day oftrial, when court rules requiredthat such a motion be
made seven (7) days in advance, and that as a result the court refused to consider it. The Virginia

Supreme Court found that this argument failed to satisfy the prejudice prong of the Strickland
analysis, as follows:
The record, mcluding the manuscript record, demonstrates that
petitioner was indicted on September 6, 2011, for six counts of
statutory burglary and one count of grand larceny. Petitioner, who
was incarcerated for unrelated offenses at the time ofthe indictments,
was arrested by the service of a capias on September 13, 2011.
Petitioner's trial date was set, without objection, for February 12,
2012. On January 4, 2012, petitioner filed a motion to sever and a
hearing was set for February 1, 2012. On February 1, 2012,
petitioner's motion to sever was granted and the trial for the instant
offenses was set, without objection, for March 14, 2012. Thus,
petitioner cannot establish that had counsel filed a timely motion to
dismiss, the motion would have been granted. See Code § 19.2-243.
Petitioner has thus failed to demonstrate that there is a reasonable

probability that, but for counsel's alleged errors, the result of the
proceeding would have been different.
Moodv V. Dir.. Dep't of Corr.. supra, slip op. at 9-10.
The foregoing holding was both factually reasonable and in accord with applicable
federal authorities. The five-month speedy trial provision of Va. Code § 19.2-243 applies only

when a defendant is incarcerated in anticipation of trial for the offense named in the indictment.
Ford V. Commonwealth. 22 Va. App. 682,689,536 S.E.2d 467,470 (2000). Here, although
Moody was incarcerated prior to trial, his detention was the result of a prior conviction for
possession of a firearm by a convicted felon. Resp. Ex. 11. Because he was not being held in
15

anticipation of trial on the instantcharges, the five-month provision was inapplicable. Instead,
because Moody was serving another sentencewhile awaitingtrial in this case, Va. Code § 9.2-

243 allowednine monthswithinto bring him to trial. In Moody's case, the nine-month period

commenced on September 13,2011, whenhe was brought before the trial court on a capias.
Since his trial occurred on March 14,2012, less then six months later, there was no violation of

his right to a speedy trial, and anymotionarguing suchwouldhavebeen fiitile. Sincecounsel is
not ineffective for failingto file fiivolous motions, Moodv v. Polk. 408 F.3d 141,151 (4th Cir.

2005), the state courts' denial of relief on this claimwas squarely in line with applicable federal
authorities, and the same result must obtain here. Williams. 529 U.S. at 412-13.
Claim 4fa)

In claim 4(a), Moody asserts that counsel provided ineffective assistance for failing

to continue voir dire of a potential juror who statedthat she mightknow Moody, and to ask for a

mistrial on that basis. The Virginia Supreme Courtfound no meritto this argument for the
following reasons:

[Petitioner] contends counsel was ineffective for failing to ask for a
mistrial or move to strike a juror who claims to be 'connected' to
petitioner 'by relationship, friends and or family.'
The Court holds that this [claim] satisfies neither the 'performance'
nor the 'prejudice' prongofthetwo-parttest enunciatedin Strickland.
The record, including the trial transcript, demonstrates that none of
the jurors who were seated in petitioner's case claimed to be
'connected' to petitioner 'by relationship, fiiends and or family.'
Moreover, although one juror stated, after the jury was seated, that
she knew 'a Moody' and that she was not certain if the petitioner was
'the Moody she knows about,' counsel could reasonably have
concludedany motionto strikethejuror or move for a mistrialwould
have been fiitile. Thejuror had alreadyindicatedshe was not related
to petitionerand did not knowhim, that she knew nothingaboutthe
case or about the petitionerfromtelevision,radio, newspapers,or the
internet, that she had formed no opinion as to the case, and that she
16

knew of no reason why she would not be able to fairly decide the
case. Counsel could reasonably have concluded the juror's comment
suggested only that she had a vague recollection of someone named
Moody and did not suggest she did not 'stand[] indifferent in the
cause.' Code § 8.01-358. Thus, petitioner has failed to demonstrate
that counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of the
proceeding would have been different.
Moody V. Dir.. Dep't of Corr.. supra, slip op. at 11-12.
The foregoing holding was clearly based on a reasonable interpretation of the facts. The

record reflects that the juror in question stated that she "knows a Moody and is not certain if Mr.
Moody, the defendant in this case, is the Moody she knows about." (Tr. 57) The juror was then
asked specifically is she "knew or was related to the defendant," and she said she was not. (Tr.
57-58) Under these circumstances, there was no reason for defense counsel to believe or even to
suspect that this juror actually knew the petitioner or harbored any bias toward him or his case.

Without some reason to move to exclude her from service on the jury, counsel did not provide

constitutionallydeficient performance in failing to make such a motion. Cf. Strickland, supra.
Therefore, the Virginia court's denial of relief on this claim was in accord with that controlling
federal authority, and its result must not be disturbed. Williams. 529 U.S. at 412-13.
Claim 6(di)

In claim 6(a), petitioner contends that trial counsel rendered ineffective assistance by
failing to object when one ofthe prosecution's witnesses - the victim - violated the court's

sequestrationorder. The record demonstrates that the burglaryvictim, Cheryl Williams, testified
once during the guilt phase of the trial (Tr. 77-113) and again at sentencing. (Tr. 326-27) In the
interim, she sat in the courtroom during additionaltestimony. The Supreme Court of Virginia
found that counsel's failure to object to this situation satisfied neither prong of the Strickland

17

analysis:

The record, including the trial transcript, demonstrates that the victim
testified once during petitioner's trial regarding the facts of the case
and again at sentencing regarding the impact ofthe crimes. Counsel
could reasonably have concluded any objection to the victim's
testimony at sentencing based on her presence in the courtroom
during the guilt phase ofthe trial would have been futile.
Jackson
V. Warden. 271 Va. 433,440-41,627 S.E.2d 776,784 (2006). Thus,
petitioner has failed to demonstrate that counsel's performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result ofthe proceeding would have been
different.

Moodv V. Dir.. Dep't of Corr.. supra, slip op. at 13.

The Vhrginia court's resolution of this claim was in accordwith Strickland. The victim's
testimony during the sentencing phase was "new" only insofaras she had not previously been

questioned aboutthe impactthe burglary had on her, and it was not contradictory of anything she
had statedduringthe guilt phase. Thus, counsel had no reasonto objectto the alleged violation

of the sequestration orderduring the guiltphase, and his failure to do so had no impact on the

outcome of the proceedings. Cf Polk. 408 F.3dat 151. Under these circumstances, the holding
ofthe Virginia court must be allowed to stand. Williams. 529 U.S. at 412-13.
Claims 7(sl) and 7rb)

In claims7(a) and 7(b),petitioner argues that counsel provided ineffective assistance by

failing to object when the prosecution failed to present evidence of petitioner's prior
"confessions" and questionedhim regarding statements he made to the police after he was
arrested. The Virginia Supreme Court found no merit to this claim, as follows:

In a portionof[thisclaim]petitionercontendscounselwas ineffective
for failingto objectto the prosecution'hiding' evidencethat petitioner
hadpreviously beenin thevictim's houseandwithholding petitioner's
'confession' that he was allowed into the victim's house with the

victim's daughter. In support of this claim, petitioner proffers a
18

response to a discovery request from a related case in which the
Commonwealth disclosed that petitioner had told the police he had
been 'told by the guys he buys weed from' that the victim's house was
empty and 'he could go there and smoke.'
The Court holds that this portion of [this claim] satisfies neither the
'performance' northe 'prejudice' prongofthetwo-parttest enunciated
in Strickland. The record, including petitioner's exhibit, demonstrates
that the statement petitioner complains was hidden was, in fact,
disclosed. The record, including the transcript of the sentencing
hearing, fiirther demonstrates that the victim's daughter did not know
the petitioner and had never been with him in her mother's house.
Thus, petitioner has failed to demonstratethat counsel's performance
was deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result ofthe proceeding would have been
different.

Moodv V. Dir.. Dep't of Corr.. supra, slip op. at 14-15.

The foregoing determination was both factually reasonable and in accord with Strickland.
The "confession" to which petitioner refers in claimmgthat it was "hidden" from the jury was a

statement he gaveto the policethat he "admitted to being insidethe house on prior occasions
smokingweed." Resp. Ex. 3, Sub-Ex. 2, K1(6). Petitioner apparently believes that this statement

supported his assertions thathehada relationship with thevictim's daughter as well aspermission
to be in the house. However, neither inference can be fairly drawn from the statement. Morever,

even were that so, it is well settled in federal jurisprudence that "'strategic choices made [by

coxmsel] afterthorough investigation... are virtually unchallengeable....'" Grav v. Branken 529
F.3d 220,229 (4th Cir.), cert, denied. 129S. Ct. 1579 (2009), quoting Strickland. 446 U.S. at 69091. Here, contrary to petitioner's benigninterpretation of his statement to the police, thejury
reasonably couldhavefound it to be an admission that he had committed priorcrimesat the
residence. Under such circumstances, counsel's choice not to bring the statement to the jury's

attention was a reasonable tactical decision that cannot support a claim of ineffective assistance.

19

See Gonzalez v. United States. 553 U.S. 242,249 (2008) ("Numerous choices affecting the

conduct of the trial, including... the arguments to advance, depend not only upon what is

permissible under the rules of evidence andprocedure but also upon tactical considerations of the
momentand the larger strategic plan for the trial."). Thus, the Virginiacourt's denial of relief on
this claim must not be disturbed. Williams. 529 U.S. at 412-13.
Claim 8(a^

In claim 8(a),Moody contends that counsel provided ineffective assistance by failing to
objectto the trial court's answers to questions from thejury and for failing to poll thejury. The
Supreme Court of Virginiafound that these contentions failed to satisfyeither prong ofthe
Strickland test, as follow:

In a portionof[thisclaim] petitioner contends counsel wasineffective
for failing to poll the jury.

... The record, includingthe trial transcript, demonstrates that counsel
did move to poll the jury after the verdicts were announced at the
conclusionofthe guiltphaseofthe trial. Althoughcounselwaivedthe
poll afterthejury announcedits sentencing decision, petitionerhas not
alleged why polling the jury was necessary or what polling the jury
would have revealed. Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of the
proceeding would have been different.
In another portion of [this claim] petitioner contends counsel was
ineffectivefor failing to object when the trial court failed to bring the
jury intothe courtroomto answertheir questionsand insteadwent into
the jury room to answer them.

... The record, including the trial transcript, demonstrates that the jury
asked three questions, that each questionwas discussedwith coimsel

and, althou^ the trial judge did not bring the jury back into the
courtroom to answer the first two questions, the trial judge answered
the questions in the hearingof counsel and the court reporter. When
the trialjudge answeredthe third question,thejury was in thejury box
20

in open court. Under these circumstances, counsel could reasonably
have concluded any objection would have been futile. Thus, petitioner
has failed to demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for counsel's alleged
errors, the result ofthe proceeding would have been different.
Moodv V. Dir.. Dep't of Corr.. supra, slip op. at 18-19.

The foregoing determination was both factually reasonable and in accord with Strickland,

supra. As the Virginiacourt noted, petitioner has not explained what he believes pollingthe jury
after sentencing wouldhave revealed, or why that information wouldhave been helpfiil to him.

Sucha conclusory "bare allegation" of constitutional error doesnot warrant habeas relief.
Nickersonv. Lee. 971 F.2d 1125,1135 (4th Cm 1992).

As to petitioner's remainingallegation, the record reveals that the jury submitted questions
to the judge three times. (Tr. 304,306,315). On each occasion,the court presentedthe question
to both counsel. Although the court did not bring the jury back into the courtroom to reinstruct

them each time, the answers they receivedwere the answersthat were discussed with counsel. In
addition, the court's responses were provided within earshot of both counsel and the court

reporter. (Tr. 304,305-06,312-13,315). The jury's third question, regarding a missing jury
instruction, was answered in open court with the jury seated in the jury box. (Tr. 316-17)

Contrary to petitioner's allegations, then, there is no record supportwhatever for the supposition
that the court had private conversations with the jurors, nor was there any other behavioron the

court's part that would have beencause for objection. As counsel had no reason to objectto the
court's handling of the jury, his failure to do so had no impact on the outcome of the proceedings,
and ineffective assistance has not been shown. C£ Polk. 408 F.3d at 151. Accordingly, the

rejection ofthis claim by the Virginia court must be allowedto stand. Williams. 529 U.S. at 41213.

21

Claim 9(si)

In claim 9(a), petitioner charges coimsel with rendering ineffective assistance by failing to
move to strike both the grand larceny and the burglary charges. As to the larceny conviction, the

Supreme Court of Virginia determined that prejudice prong of the Strickland analysis was not
satisfied:

The record, including the per curiam order of the Court of Appeals,
demonstrates that although the Court of Appeals determined
petitioner's challenge to the sufficiency of the evidence was waived,
the Court of Appeals also addressed the merits of petitioner's claim
and determined the evidence was sufficient to support petitioner's
conviction for grand larceny. Thus, petitioner has failed to
demonstrate that there is a reasonable probability that, but for
counsel's alleged errors, the result ofthe proceeding would have been
different.

Moodv V. Du:.. Dep't of Corr.. supra, slip op. at 15-16.

The foregoing holding was plainly reasonable. Although the Court of Appeals noted that
counsel's failure to renew the motion to strike at the close of all the evidence waived a sufficiency

objection, Moodv v. Comm.. supra, slip op. at 3-4, it went on to state that "[e]ven if appellant had
preserved his argument, it is without merit," because "[s]ufficientevidence supported appellant's
conviction [of grand larceny]...." Id. at 5,9. Because it thus is readily apparent that petitioner

sufferedno prejudice as the result of counsel's failure to renewthe motion to strike,the denial of
his claim of ineffective assistance on that basis was in accord with Strickland, supra, and the same
result must obtain here. Williams. 529 U.S. at 412-13.

As to the burglaryconviction, the SupremeCourt of Virginia found that counsel's failure
to renew the motion to strike satisfied neither prong of the Strickland test:

The record, including the per curiam order of the Court of Appeals,
demonstrates that although the victim was not staying in the home at
the time of the crimes, she was still in the process of moving her
22

belongings and her son was in the process of moving into the house.
Therefore, counsel could reasonably have determined the house
remained a dwelling at the time ofthe crimes and that any arguments
to the contrary would have been fiitile. The Court of Appeals
determined petitioner's challenge to the sufficiency of the evidence
was waived, the Court of Appeals also addressed the merits of
petitioner's claim and determined the evidence was sufficient to
support petitioner's conviction for grand larceny. Thus, petitioner has
failed to demonstrate that there is a reasonable probability that, but for
counsel's alleged errors, the result ofthe proceeding would have been
different.

In another portion... petitioner contends counsel was ineffective for
failing to argue that the evidence adduced at trial was insufficient to
support his burglary conviction because the evidence did not establish
that he entered the home in the nighttime.
The record, including the trial transcript, demonstrates that petitioner
broke into the victim's house. Tlierefore, it is not necessary
Commonwealth to prove petitioner entered the house in the nighttime
and counsel could reasonably have determined that any argument to
the contrary would have been futile. Thus, petitioner has failed to
demonstrate that counsel's performance was deficient or that there is

a reasonable probabilitythat, but for counsel's alleged errors, the result
ofthe proceeding would have been different.
Moodv V. Dir.. Dep't of Corr.. supra, slip op. at 18-19.

The Virginia Supreme Court's determination was both factually reasonable and in accord
with Strickland, supra. Virginia law holds that "a house is a dwelling house ... when the house is

used for habitation,includingperiodic habitation." Giles v. Commonwealth. 277 Va. 369,375,
672 S.E.2d 879, 883 (2009). In addition, Va. Code § 18.2-91 - the statute under which petitioner
was convicted - provides that "a person commits statutory burglary in violation of these statutes

when a person either (1) enters in the nighttime or (2) enters after breaking at any time, day or

night." Finnevv. Commonwealth. 277 Va. 83, 88, 671 S.E.2d 169,172 (2009). The "breaking"
element of the statue can be satisfied even by slight force, such as "pushing open a door, turning

23

the key, [or] lifting the latch," provided the entry is without the consent ofthe property owner.

Id., 671 S.E.2d at 172 (citation omitted). In petitioner's case, the property owner testified at trial

that she saw petitioner pull open her back door and step inside her house. (Tr. 85) She stated that
petitioner did not have permission to do so. (Tr. 86) Thus, a motion to strike the burglary
conviction on either ofthe bases petitioner now suggests - that the homeowner was not staying in
the house full time and that petitioner did not enter the property in the nighttime - would have

been futile. Since counsel does not provide ineffective assistance by failing to make a frivolous
motion. Polk. 408 F.3d at 151, the state court's resolution of this claim was in accord with

Strickland, supra, and its holding will not be disturbed. Williams. 529 U.S. at 412-13.
Claim 11(a)

In claim 11(a), petitioner faults counsel for failing to object to the prosecutor's argument
that the jury should consider petitioner's age when determining his sentence. The Supreme Court

of Virginia determined that this argument failed to satisfy either prong of the Strickland analysis,
as follows:

The record, including the trial transcript, demonstrates that petitioner's
counsel argued at sentencing that petitioner, who had numerous prior
convictions, was young enough to change his life and *be something
different' and urged the jury to impose a lenient sentence to give
petitioner that opportunity. Hie prosecutor, in rebuttal, noted that even
if the jury returned a sentence of twenty years, petitioner would only
be forty-eight when released and would still be fully capable of
continuing his criminal activities. Counsel could reasonably have
determined that the prosecutor's argument was a reasonable response
and that any objection would have been futile. See Jackson v.
Commonwealth. 193 Va. 664, 675, 70 S.E.2d 322, 329 (1952)
(prosecutor may combat defendant's argument for light punishment).
Thus, petitioner has failed to demonstrate that there is a reasonable
probability that, but for counsel's alleged errors, the result of the
proceeding would have been different.
Moodv V. Dir.. Dep't of Corr.. supra, slip op. at 18-19.
24

The Supreme Courtof Virginia's foregoing ruling was both factually reasonable and in
accord with Strickland. For the reasons explained in the Court's opinion, there was nothing

improper aboutthe prosecutor's argument rebutting defense counsel'ssuggestion that thejury
shouldimpose a lenient sentence basedon petitioner'syoung age. S^ Va. Code 19.2-295.1.
Thus, any objection by counsel would have been futile, and a claim of ineffectiveassistance
cannot rest on a failure to make a frivolous objection. Polk. 408 F.3d at 151. Accordingly, the

rejection of this claim by the Virginia court is entitled to deference here. Williams. 529 U.S. at
412-13.

Ineffective assistance of appellate counsel

In claims 1(b), 3(b), 4(b), 5(b), 6(b), 7(c), 8(b), 9(b), 10(b), 11(b), 12(b), 13(b), and 14(b),

petitioner alleges that he received ineffectiveassistancebecause appellate counsel failed to raise
the corresponding claims of denial of due process and ineffective assistance of counsel at the
appellate level. In each instance, the Supreme Court of Virginia denied relief by citing Jones v.

Barnes. 463 U.S. 745,751-52 (1983) and holding that 'the selection of issues to address on appeal

is left to the discretion of the appellatecounsel, and counsel need not address every possible issue
on appeal." It concluded in each instance that "petitioner failed to demonstrate that appellate

counsel's performance was deficient or that there is a reasonable probabilitythat, but for appellate
counsel's alleged errors, the result ofthe proceeding would have been different." Moodv v. Dir..
Dep't of Corr.. supra, slip op. at 6.7,10,11,13,13,15,18,20,21,22,24.

These rulings were both factually reasonable and in accord with applicable federal

principles. The Strickland analysis applies to claims of ineffective assistance on appeal as well as
at trial. Matire v. Wainwrieht. 811 F.2d 1430,1435 (11th Cir. 1987). Because "appellate counsel

is given wide latitude to develop a strategythat may omit meritorious claims in order to avoid

25

burying issuesin a legaljungle," Lovittv. Angelone» 208 F.3d 172,189 (2000), appellate counsel
is not required to assertevery conceivable claimon appeal, and counsel's choice of which
appellate issuesto pursue is virtually unassailable. Jones. 463 U.S. at 751-52. Here, to the extent
that petitioner's claims of ineffective appellate representation mirrorhis claims of ineffective trial
representation, they fail for the reasons discussed in connectionwith the corresponding trial court
claims discussed above. In addition, petitiner has failed to provide any discussion of why he
believes he would have prevailed had appellate counsel raised the issues he now suggests, nor

does he raise any objections to the claims appellate counsel did pursue. Since a petitioner to

prevail on a claim of ineffective appellate assistance must demonstrate that counsel ignored
stronger appellate issues than those he or she chose to present, see Lawrence v. Branker. 517 F.3d
700 (4th Cir. 2008), all ofpetitioner's claims of ineffective assistance on appeal are without merit,
and their dismissal by the Supreme Court of Virginia will not be disturbed. Williams. 529 U.S. at
412-13.

V. Petitioner's Pending Motions

Presently pending before the Court are two motions by petitioner. First, petitioner has

moved to strike respondent's procedural defenses based on respondent's alleged failure to respond

in a timely manner to the Court's order to show cause. (Dkt. No. 15) The docket reflects that the

respondent initially was dnected to respond to the petition within thirty (30) days on January 26,
2015. (Dkt. No. 2) When no response had been received by March 20,2015, the Court issued a
order directing respondent to file his response by April 20,2015. (Dkt. No. 5) Respondent filed
his Rule 5 Answer and Motion to Dismiss April 20,2015. (Dkt. No. 9-11) In the brief

supporting the Motionto Dismiss, counsel for respondent statedthat she never received the Order
of January 26,2015, and learned that it had been issued only when she received the subsequent

26

Order ofMarch 20,2015. See Resp. Brief at p. 6, n. 3. This apparent clerical error and the one-

monthdelayin adjudicating this petition it occasioned caused petitioner to sufferno prejudice and
provides no basis for striking respondent's procedural defenses. Accordingly, petitioner's motion
to strike will be denied.

Petitioner has also moved for an evidentiary hearing. (Dkt. No. 17) Because this action can

be fairly adjudicated by reference to the existing statecourtrecords, no hearing is warranted, and
petitioner's motionwill be denied. Cullen v. Pinholster.

U.S.

, 131 S. Ct. 1388,1400 (April

4,2011).
VI. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss this petition for habeas corpus
relief will be granted, and the petition will be dismissed, with prejudice. Petitioner's Motion to
Strike and Motion for Evidentiary Hearing will be denied. An appropriate Order and judgment
shall issue.

lis ^fd dayof_

Entered this () HA

day of

2016.

Is/

Alexandria, Virginia

Gerald Bruce Lee
United States District Judge

27