Kersey v. Davis

Filing 21

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 2/25/2016. (dvanm, )

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

Alexandria Division

Mark Kersey,
Petitioner,

)
)
)
)
)
)
)

V.
Keith Davis,
Respondent.

l:15cvl33 (TSE/MSN)

MEMORANDUM OPINION

Mark Kersey, 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 ofhis conviction in the
Circuit Court for the City ofNorfolk of aggravated malicious wounding and first degree murder.

Petitioner has paid the applicable filing fee. On May 5,2015, respondent filed a Rule 5 Answer
and a Motion to Dismiss with a supporting brief and exhibits. Petitioner 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 after receiving an extensionoftime he filed a reply to the
Motion to Dismiss on June 16,2015. Accordingly, this matter is now ripe for disposition. For

the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must
be dismissed, with prejudice.
I. Background

On August 8,2011, a City of Norfolk jury convicted petitioner of: (I) the aggravated
malicious wounding of Brandon Franklin and (ii) the first degree murderof LemarWoodward.

As a result, petitioner received a total sentence of seventy (7)years incarceration. Case No.
CR09003300; Resp. Ex. A. The facts giving riseto petitioner's convictions were described by
the Court of Appeals of Virginia as follow:

On July 21, 2009, Taneisha Woodard (Taneisha) had an argument
with her cMld and the child left the house. Taneisha also left the

house. Taneisha is appellant's sister, and she was married to Lemar
Woodard (Woodard), the victim of the murder. Derrick Bunch,
Woodard's brother, testified he was at Woodard's house with
Woodard and Brandon Franklin, the victim of the aggravated
malicious wounding, when appellant's girlfriend, Taishia Roseman
(Roseman) and additional females arrived during the late afternoon
asking about Taneisha's child. Bunch testified Roseman was angiy
and said that Woodard was not a good parent because he permitted
the child to run away, Burch testified Roseman said to Woodard,
'You're a bitch. We'll be back. You ain't gonna do nothing next
time we come back.' Roseman and the other females left.

Bunch testified he, Woodard, and Franklin went to the basement and

were sitting on a sofa when appellant and another man entered the
basement at approximately 6:30 p.m. Bunch testified appellant told
Woodard that he needed to talk to him and Woodard replied, 'It takes
two ofyou all to talk to me?" Bunch testified as Woodard started to
stand up, appellant punchedWoodard severaltimes. Bunch testified
Franklin stood up and grabbed appellant firom the back. Bunch
testified he tried to break up the fight and at a certain point, the
fighting stopped. [After a verbal argument, however] Bunch testified
appellant grabbedWoodardand they fell onto the sofa and he tried to
break up the fight. Bunch testified Woodard told him to pick up a
television and drop it on appellant's head, but Bimch refused. Bxmch
testified appellant and Woodard stopped fighting and the men stood
near each other and the women were behind them. Bunch testified

appellant was facing Woodard and Franklin when he saw appellant
holding a pocket knife by his side and he asked appellant to put the
knife away. Bunch testified appellant 'tucked awaythe knife and he
did not see it.' Bunch testified he, Woodard and Franklin were

imarmed. Bunch testified appellant tumed, stabbed Woodard, turned
toward Franklin, and stabbed Franklin. Bunch testified appellant
stated, 'Bitch. You all going to die. Somebody going to die tonight
penitentiary style.'...
Kersev v. Commonwealth. R. No. 2567-10-1 (Va. Ct. App. Sept. 9,2011); Resp. Ex. C.

Petitioner appealed hisconviction and sentence totheCourt ofAppeals ofVirginia, asserting
that:

1.

The trial court erred in refusing to instruct the jury on

the right to arm oneself in self-defense.
2.

The evidence was insufficient to show that there was

a permanent and significant physical impairment to
support the conviction of malicious woimding.
3.

His right to a speedy trial as guaranteed by Va. Code
§19.2-243 was violated.

The Virginia Court of Appeals denied the petition for appeal in part, but granted petitioner an

appeal on the claim of the sufficiency of the evidence to sustain the maliciouswounding
conviction. Resp. Ex. B-C. After briefing and oral argument, the Court ofAppeals affirmed
petitioner's conviction and sentence. Kersev v. Commonwealth. R. No. 2567-10-1 (Va. Ct. App.
July 10,2012); Resp. Ex. D. On April 4,2013, the Supreme Court of Virginia refused Kersey's
petition for further review. Kersev v. Commonwealth. R. No. 121560(Va. Apr. 4,2013).
On November 4,2013, petitioner filed a petition for a writ of habeas corpus in the City of
Norfolk trial court, which including a supplement to the petition raised the claims that:
A.

Counsel obtained petitioner's signature on a
continuance order through intentional deception.

B.

Counsel failed to subject the prosecution to
adversarial testing.

C.

Counsel erroneously invoked the defense of selfdefense.

D.

Counsel added unsupported facts to the record.

E.

Counsel failed to request an jury instruction on
abolition of parole.

F.

Appellate counsel adopted trial counsel's arguments
without thoroughly reviewing the record,

G.

Appellate counsel failed to argue petitioner's claims
as constitutional violations.

H.

His Sixth Amendment right to a speedy trial was
violated.

I.

Counsel was ineffective for failmg to strike juror
Newton and to ensure that the jury was not biased.

The Virginia Courtof Appeals by a Final Order dated April 9,2014, denied habeas relief
and dismissedthe petition. In this respect, the Court of Appealsdetermined claim H to be

procedurally defaulted pursuant to Slavton v. Parriean. 215 Va. 27,30,205 S.E.2d 680,682
(1974) because on appeal petitioner raisedthe alleged speedy trial violation only as a state
statutory violation ratherthan a breachof the Sixth Amendment. Resp. Ex. I at 3. The Virginia
Court of Appeals found the remaining claims asserting ineffective assistance of trial and

appellate counsel to be withoutmerit. Kersevv. Warden. Sussex I State Prison. R. No. CL13-

8534; Resp. Ex. I. On November 17,2014, the Supreme Court of Virginia refused a petition for
appeal ofthat judgment. Kersev v. Davis. R. No. 141040(Va. Nov. 17,2014); Resp. Ex. J.
Petitioner then turned to the federal forum and timely filed here the instant application for

habeas corpus relief pursuantto 28 U.S.C. § 2254. The claims asserted here are similar, but not
identical to those raised on direct appeal m the state court and in the state habeas proceeding.
The claims asserted here are as follow:

1.

Petitioner's right to a speedy trial as guaranteed by the
Sixth Amendment and the Virgmia Constitution was
violated.

2.

Petitioner's rights to due processand equal protection
were violated when the trial court refused to instruct

the jury on self-defense.

3.

Petitioner's rights to due process and equal protection
were violated when he was convicted of aggravated

malicious wounding in the absence of sufficient
evidence of the victim's permanent and significant
impairment.

4.

Trial counsel was ineffective for obtaining petitioner's

signature on a continuance order through intentional
deception.
5.

Trial counsel was ineffective for failing to subject the
prosecution to adversarial testing by:

a. failing to impeach Derrick Bunch;
b. failing to obtain an expert to challenge the
pathologist's findings;
c. allowing the pathologist to testify that Woodard

died ofapunctur^ lung;
d. failing to present rebuttal argument;

e. conceding the cham of custody as to the body;
f. failing to obtain a private investigator; and
g. all ofthe foregoing, cumulatively.

6.

Trial counsel was ineffective for erroneously invoking
the defense of self-defense.

7.

Trial counsel was ineffective for adding unsupported
facts to the record,

8.

Trial counsel was ineffective for failmg to request a
jury instruction on abolition ofparole.

9.

Appellate counsel was ineffective for adopting trial
counsel's argumentswithoutthoroughly reviewing the
record.

10.

Appellate counsel was ineffective for failing to argue
petitioner's claims as constitutional violations.

11.

Trial counsel was ineffective for failing to strike juror
Newton and to ensure that the jury was not biased.

As noted above, respondent has filed a Motion to Dismiss the petitionwith a supporting
brief and exhibits, and petitioner has filed a reply. Dkt. No. 10-12,20. For the reasons that

follow, respondent's Motion to Dismiss mustbe granted, and the petition mustbe dismissed,
with prejudice.
II. Exhaustion and Procedural Bar

Before bringing a federal habeas petition, a state prisoner must furst exhaust his claims in
the appropriate statecourt. Sm 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 have presented to the Supreme Court of Virginia the same factual and
legal claims raised in his § 2254 application here. See, e.g.. Duncan v. Henrv. 513 U.S. 364
(1995); Kasi v. Aneelone. 300 F.3d 487,501-02 (4th Cir. 2002).
However, "[a] claim that has not been presented to the highest state court nevertheless
may be treated as exhausted if it is clear that the claim would be procedurallybarred under state

law if the petitionerattempted to present it to the state court." Baker v. Corcoran. 220 F.3d 276,

288 (4th Cir. 2000) (citingGrayv. Netherland. 518 U.S. 152,161 (1996)). Importantly, "the

procedural bar that gives riseto exhaustion provides an independent andadequate state-law
ground forthe conviction andsentence, and thus prevents federal habeas review of the defaulted
claim." Id. (quoting Grav. 518 U.S. at 162). Therefore, such a claim is deemed to be
simultaneously exhausted and defaulted for purposes of federal habeas review. See Bassette v.
915 F.2d 932 (4th Cir. 1990). In this case,petitioner's unexhausted claimsmust be

treated as exhausted because petitioner is now precluded from raising them in statecourt byVa. a

Code § 8.01-654(B)(2), which bars successive state habeas applications. The Fourth Circuit has
"held on numerousoccasionsthat the procedural defaultrule 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). Because "theprocedural barthatgives riseto exhaustion

provides an independent andadequate state-law ground fortheconviction and sentence, and thus
prevents federal habeas review of the defaulted claim," Baker. 220 F.Sd at 288 (citing Grav v.
Nedierland. 518 U.S. 152,161 (1996)), the unexhausted claims of this petition are procedurally
defaulted from federal consideration.

In addition, where as here, a state court clearly and expressly bases its dismissal of a

habeaspetitioner's claim on a state procedural rule, and that procedural rule provides and
independent and adequategroundfor the dismissal, the habeas petitionerhas procedurally
defaulted his federal claim." Breard v. Pruett. 135 F.3d 615,619 (4th Cir.), cert, denied sub

nom.. Breard v. Greene. 523 U. S. 371 (1998). Thus, "[a] habeas petitioner is barred from

seeking federal review of a claimthat waspresented to a statecourtand 'clearlyand expressly'
deniedon the independent, adequate state ground of procedural default." Bennett v. Aneelone.
92 F.3d 1336,1343 (4th Cir.), cert, denied. 519 U.S. 1002(1996). A state procedural rule is

"adequate ifit is firmly established andregularly or consistently applied bythe state courts, and
"independent" if it does not depend upon a federal constitutional ruling. Yeatts v. Aneelone. 166
F.3d 255,263-64 (4th Cir. 1998), cert, denied. 526 U.S. 1095 (1999). Pursuant to these

principles, several of the claims or portions of the claims petitioner raises here are barred from
federal review, as will be discussed below.

Federal courts maynot review barred claims absent a showing of cause andprejudice or a

fundamental miscarriage ofjustice, such as actual innocence. Harris v. Reed. 489U.S. 255,260

(1989). The existence of cause ordinarily turns upon a showing of (1) a denial of effective
assistance of counsel, (2) a factorexternal to the defense whichimpeded compliance with the

stateprocedural rule, or (3)the novelty of the claim. SeeColeman v. Thompson. 501 U.S. 722,
753-54 (1991); CloTza v. Murrav. 913 F.2d 1092,1104 (4thCir. 1990); Clanton v. Muncv. 845
F.2d 1238,1241-42 (4th Cir. 1988). Importantly, a court need notconsider 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). It remainsto applythese principles to the petitioner's claims.
Claim 1: In his first claim, petitioner argues that the state violated his right to a speedy

trial as guaranteed by the SixthAmendment and the Virginia Constitution. This claim fails in
both respects.

In the state habeas corpus action, petitioner raised a federal constitutional challenge to the

timing of his trial as claimH. Resp. Ex. I at 2. As noted above, the courtin that proceeding
found that the claim was procedurally defaultedpursuantto Slavton. 205 S.E.2d at 682,

"because petitioner did not raiseit at trial andon direct appeal." Id. at 3. The Fourth Circuit has
recognized on numerous occasions that the rule enunciated in Slavton is an adequate and
independent statelaw ground for decision. ^

Fisher v. Aneelone. 163 F.3d 835,844 (4th Cir.

1998)and cases cited. Thus, because petitioner's speedy trial claimbasedon the Sixth
Amendment was "'clearly and expressly' denied on the independent, adequate state ground of

procedural default," this claim is procedurally defaulted and thus barred from federal
consideration. Bennett. 92 F.3d at 1343.

The portion of Claim 1where petitioner argues thathis right to a speedy trial as

guaranteed by the "Virginia Constitution" was violated states no claim for §2254 relief because it

is not a claim of federal constitutional dimension. "A state prisoner is entitled to relief under §

2254 only if he is held 'in custody in violation of the Constitution or laws or treatiesof the
United States.'" Billotti v. Leeurskv. 975 F.2d 113,119 (4th Cir. 1992) (quoting Enale v. Isaac.

456 U.S. 107,119 (1982)). Thus, questions of state law that do not implicate federal rights are

not cognizable on federal habeas review under § 2254. Id. (citing Inge v. Procunier. 758 F.2d
1010,1014 (4th Cir. 1985)). Moreover, even if that portion of Claim 1 were cognizable in
substance, it still would be procedurallybarred from federal review because it has not been
reviewed by the Virginia courts and would be subject to dismissal as successive ifraised there
now.' See Va. Code §8.01-654(b)(2); Mackall v. Aneelone. 131 F.3d 442,446 (4th Cir. 1997)

(determining the procedural bar of successive habeas applications in Va. Code §8.01-654(B)(2)
to be a well-recognizedadequate and independentground). Therefore, the second portion of
Claim 1 - that the state violated petitioner's Virginia constitutional right to a speedy trial - is
simultaneouslyexhausted and defaulted, and therefore procedurally barred from federal review.
See Coleman. 501 U.S. at 729-30.

In his Traverse to Response to Order to Show Cause, petitioner argues that his speedy
trial claim was exhausted on direct appeal. Dkt. No. 20 at 13. However, as just discussed, the

argument presented thererested on the Virginia statutes rather thanon any federally-guaranteed
right, so exhaustion for federal habeas corpus purposes was not achieved. Cf Duncan. 513 U.S.
at 364. As petitioner makes no showing of cause and prejudice, claim 1 of this petition is
procedurally defaulted and therefore is not eligible for federal review. Harris. 489 U.S. at 260.

'It will be recalledthat on directappealpetitioner basedhis speedy trial argument on the Virginia
statutes, while here he relies on the federal and Virginia constitutions.

Claim 2: In his second claim, petitioner argues that he was deprived of due process and

equal protection as provided bythe United States Constitution when the trialcourt declined to
instruct thejury on the right to armoneself in self-defense. This claim, too, is simultaneously
exhausted and defaulted, becausepetitionerchallenged the court's ruling on the proffered
instruction in the state habeas proceeding solely on the basis of Virginia law. Resp. Ex. B at 5-7.

Moreover, assuming arguendo that it is appropriate to address the merits of petitioner's Claim2,
he would be entitled to no federal habeas relief. The propriety of state court jury instructions is a
matter of state law. Chance v. Garrison. 537 F.2d 1212,1215 (4th Cir. 1976), and "[i]t is only in

circumstances where instructions impinge on fimdamental fairness or infringe on specific

constitutional or federal protectionsthat a federal questionis presented,"such that relief under §
2254 would be available, firundler v. North Carolina. 283 F.2d 798, 802 (4th Cir. 1960). Neither

of those exceptions applies here. Moreover, because petitioner's Traverse makesno showing of
cause and prejudice, claim 2 is procedurally barredfromconsideration on the merits. Harris. 489
U.S. at 260.

Claims

and ffl: Unlike the remainder of petitioner's assertions of ineffective

assistance of counsel, subclaims 5(e) and (f) were never raised in the state habeas corpus

proceeding.^ In thataction, petitioner never argued, as he does here, that counsel wasrequired
to, butdid not,object to the chain of custody of the body (claim 5(e)) andobtain a private
investigator (claim 5(f)). Thus, these twoportions of claim 5 are simultaneously exhausted and
defaulted for purposes of federal review. Bassette. 915 F.2d at 932.
In Martinez v. Rvan.

U.S.

, 132 S.Ct. 1309 (2012) the Supreme Court:

... held that a federal habeas petitioner who seeks to raise an

^In his Brief, respondent mistakenly refers to these claims as 6(e)and 6(f).
10

otherwise procedurally defaulted claim of ineffective-assistance-oftrial-counsel before the 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 proceedmg was the initial review
proceeding in respect to the ineffective-assistance-of-trial-coimsel
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). The Fourth Circuit has interpreted Martinez as creating a "narrow

exception" to the general rule of Coleman. sunra. which bars federal review ofa claim that was
not exhausted in the state courts. Fowler. 753 F.3d at 460-61. Here, the"narrow exception" of

Martinez is xmavailing as to both ofpetitioner's defaulted ineffective-assistance-of-trial-counsel
claims, because in both instances, the allegations petitioner presents are not sufficiently

"substantial" to come within the "narrow exception" created by Martinez. As the Court in that
case stressed, "To overcome the default, a prisoner must also demonstrate that the underlying

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit." Martinez. 132 S. Ct. at 1318. It is the

petitioner's burdento demonstrate that his claims are "substantial." Fowler. 753 F.3d at 461.
Petitioner here fails to make such a showing.

To establish ineffective assistance of counsel, a petitioner must show that (1) "counsel's

performance wasdeficient" and(2)"the deficient performance prejudiced the defendant."
StrifiHanrI v. Washington. 466 U.S. 668,687 (1984). To prove that coxmsel's performance was

deficient, a petitioner mustshow that "counsel's representation fell below an objective standard
of reasonableness" jd, at 688, and that the "acts and omissions" ofcounselwere, m light of all

11

the circumstances, "outside the range ofprofessionallycompetent assistance." Id. at 690. Such a
determination "must be highly deferential," with a "strong presumption that counsel's conduct
falls within the wide range ofreasonable professionalassistance." Id. at 689; see also. Burket v.
Aneelone. 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 ofhindsight from [its]
analysis"); Spencer v. Murrav. 18 F.3d 229,233 (4th Cir. 1994) (court must "presume that
challenged acts are likely the result of sound 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 ofthe proceedingwould 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." Murrav v. Carrier. 477 U.S. 478,494 (1986) (citations

omitted, emphasis original). The two prongs ofthe Stricklandtest are "separate and distinct
elements of an ineffective assistance claim," and a successfiil petition "must show both deficient

performance and prejudice," Spencer. 18 F.3d at 233. Therefore, a court need not reviewthe
reasonableness of counsel's performance if a petitioner fails to show prejudice. Ouesinberrv v.
Tavlore. 162 F.3d 273,278 (4th Ck. 1998).

In claim 5(e), petitioner argues that counsel provided ineffective assistance by failing to

objectto the chain of custody of LemarWoodard'sbody. However, the recordreflects testimony
ofthe medical examiner that Woodard's cause of death was stab wounds to the chest (Tr. 347),

and that medical intervention in the form ofremoval of one of his lungs was performed at a

12

hospitalprior to his death. Undersuchcircumstances her testimony would not have been
excluded had counsel made the objection petitioner now suggests, so claim 5(e) is not

sufficiently substantial to warrant application of the Martinez exception.
In claim 5(f), petitioner faults coimsel for failing to obtain the services of a private

investigator. However, petitioner has failedto profferan affidavit to establish what evidence an
investigator would have discovered and how that evidence wouldhave affected the outcome of
the trial. Both Virginiaand federal courtsrecognize the principlethat failureto provide an
affidavit to verify the testimony of a missing witness is fatal to a habeas petitioner's claim of
ineffective assistance. Bassette. 915 F.2d at 941 (in the absence ofparticulars as to what an

adequateinvestigation would have revealedor a proffer of what absent witnesses would have
said, a claim of ineffective assistance based on general assertions that additional witnesses should
have been called will not lie); Muhammad v. Warden. 274 Va. 3,19,646 S.E.2d 182,195

(2007) (failure to profferaffidavits regarding testimony witness wouldhave offered is fatal to
Stricklandclaims). Accordingly, claim 5(f) is not substantial, and Martinezdoes not apply to
excuse its default. In summary, then, claims 1,2,5(e) and 5(f) ofthe petition are procedurally
defaulted and hence barred from federal habeas review.
III. Merits 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 thepetition 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"anunreasonable application of federal law requires anindependent review of
each of these requirements.

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

determination runs afoul of the "contraryto" standardif it "arrives at a conclusionoppositeto
that reachedby [the United States Supreme] Court on a questionof law or ifthe state court
decides a case differentlythan [the United States Supreme] Court has on a set of materially

indistinguishable facts."

at 413. Underthe "unreasonable application" clause, the writ should

be granted ifthe federal court finds that the statecourt"identifies the correct governing legal

principle firom [the Supreme] Court's decisions but unreasonably applies thatprinciple 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 offederal court review is now on the state court

decision that previously addressed the claims rather than the petitioner's fi-ee-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

riaim 3: In his third claim, petitioner asserts that the evidence was insufficient to sustain
the conviction of aggravated malicious wounding because there was no showing that the victim,
Franklin, sustained permanent and significant impairment. When he made this same argument
on direct appeal, the Court ofAppeals rejected it on the following holding:
"To be convicted of aggravated malicious wounding under Code §
18.2-51.2, the injuries inflicted on the victim must be both a
'significant physical unpairment' and 'permanent.' Case law defines
'physical impairment' for purposes of this criminal statute as 'any

physical condition, anatomic loss, or cosmetic disfigurement.'"
T.amm v. Commonwealth. 55 Va. App, 637,644-45,688 S.E.2d 295,
298 (2010) (quotingNewton v. Commonwealth. 21 Va. App. 86,90,
462 S.E.2d 117,119(1995)).
*

*

*

"On appeal, 'we reviewtheevidence inthe lightmostfavorable to the
Commonwealth, granting to it all reasonable inferences fairly
14

deducible therefrom." Archer v. Commonwealth. 26 Va. App. 1,11,

492 S.E.2d 826,831 (1997)(quoting Martin v. Commonwealth. 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the
evidence provedthat appellant stabbed Franklin one time. Franklin
testified he sustained a wound to his lung, was hospitalized for eleven

days, and he had a slow recoveiy. Franklin testified he was in good
physical shape prior to the stabbing because he was a boxerand ran
as part of his training. Franklin testified he was back nmning at the
time of appellant's trial, but he still needed to use a nebulizer.
Franklin showed his scar to the jury, which was approximately one
inch in length. Franklin testified his lung 'was fine now.'

Photographs of Franklin in thehospital wereadmitted into evidence.
During the motion to strike, appellant conceded that Franklin was
severelyinjured and he has a physical impairment,but argued that he
did not have a "significant" physical injury from the stabbing. The
trial judge denied the motion to strike the aggravated element of the
malicious wounding charge, finding that it was a question for thejury.
Appellant claims no error related to the jury instruction defining

physical impairment. The trial judge also instructed the jury on the
lesser-included offenses of malicious woimding and unlawful
wounding.

The jury heard and evaluated Franklin's testimony, reviewed the
photographs, and saw his scar from the stab wound to his lung. The
jury could reasonably conclude that Franklin had a permanent and
significant impairmentas a result ofthe stabbing. The trial judge did
not err in denying the motion to strike and in permitting the jury to
determine whether Franklin suffered a significant physical
impairment.

Kersev v. Commonwealth. Resp. Ex. C, slip op. at 4-5. Because the foregoing order was the last
reasoned state court decision on the claim at issue, its reasoning is imputed to the Supreme Court

of Virginia, whichrefused further appealwithoutexplanation. See Ylst v. Nunnemaker. 501 U.S.
797,803 (1991).

On federal habeas review, the standard for a claim challenging the sufficiency of the

evidence supporting a stateconviction is "whether, after viewing the evidence in the light most

favorable to the prosecution, ^ rational trier offact could have found the essential elements of
15

the crime beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307,319 (1979)(emphasis

original). Thefederal court is required to give deference to findings of fact made bythe state
courts, andthis presumption of correctness applies to facts found by bothtrial andappellate
courts. 28 U.S.C. § 2254(d); Sumnerv. Mata.449 U.S. 539,546-47 (1981); see Wilson v.
Greene. 155 F.3d 396,405-06 (4th Cir. 1998) (citing Wright v. West. 505 U.S. 277,292 (1992)

for the holdingthat a federal habeas court is prohibited fi-om either"considering] anew the jury's

guiltdetermination or "replac[ing] the state's system of directappellate review"). In short, the
federal court must determine only whether the trier of fact made a rational decision to convict.
Herrera v. Collins. 506 U.S. 390,402 (1993). Here, for the reasons amply explamed by the

Court ofAppeals in its opinion, it is apparent that when the evidence is viewed in the light most
favorable to the prosecution and deference is paid to the jury's factual determinations, a rational
trier of fact could well have found petitioner guilty ofmalicious wounding. Therefore, the state
courts' determination that the conviction is supported by sufficient evidence was neither contrary

to, nor an unreasonable application of, controlling federal law, Jackson, supra, nor was it based
on an unreasonable interpretationof the record facts. Accordingly, the same result is compelled
here, and therefore this claim merits no federal habeas relief. Williams. 529 U.S. at 412 - 13.

Claim 4: In claim 4, petitioner argues that coimsel obtained his signature on a
continuance order through intentional deception. When he made this same claim in his state
habeas corpus action, it was rejected on the following holding:
[P]etitioner alleges counsel was ineffective because his attorney,
Cynthia Garris, obtained his signature to a continuance order on
November 3,2009, 'by fi^iud and deception' when petitioner did not
want to continue his case to a different trial date. The Court finds that

Petitioner has failed to satisfy either prong ofthe Strickland test.

The decision whether to request a continuance is a tactical decision
16

that cannot be second-guessed in habeas corpus. Thus, counsel did
not need petitioner's approvalto ask for a continuance. 'The orderly
administration of justice requires that tactical matters, such as
continuances, be left with counsel.' Stockton v. Commonwealth. 227
Va. 124, 141, 314 S.E.2d 371, 382 (1984). Moreover, the record

demonstrates that counsel was appointed to represent the petitioner
on October 21,2009. Thus, it was unreasonable for petitioner to have
expected Garris to be prepared for trial in a complex murder and
mdicious wounding case two weeks after her appointment to the
case, by November 3,2009. Petitioner has also failed to demonstrate
a reasonableprobabilityofa different result had Garris not requested
a continuance. In addition, the record reflects that the matter was
continued at least on other time, on June 10, 2010, after petitioner

was represented by a new attorney.

Resp. Ex. I at 5-6. This holdmg subsequentlywas affirmed by the Supreme Court of Virginia
without written explanation. Resp. Ex. J: see Ylst. 501 U.S. at 803.

The state courts' rejection of petitioner's claim was both factually reasonable and in

accord with applicablefederal principles. Factually, as the court noted, attorneyGarris was
appointedto representpetitionerat a trial for two seriousfelony offensesonly two weeks before
the continuance at issue was requested, and under such circumstances the necessity for requesting
a continuance is obvious. In addition, federal law recognizes that "strategic choices made [by

counsel] after thorough investigation... are virtually unchallengeable." Grav v. Branken 529 F.3d
220,229 (4th Cir.), cert, denied. 129 S. Ct. 1579 (2009), quoting Strickland. 446 U.S. at 690-91.

Continuances are "[s]cheduling matters" that are "plainly amongthose for which agreement by
counsel generally controls." New York v. Hill. 528 U.S. 110,115 (2000). Accordingly, because
the state courts' rejection of petitioner's fourth claim was both factually reasonable and in accord

with controlling federal principles, see Strickland, supra, the same resultobtains here, and no
federal habeas relief is warranted. Williams. 529 U.S. at 412-13.

17

r.laitn S: In his fifth claim, petitioner asserts that counsel provided ineffective assistance

byfailing to subject the state'sevidence to meaningful adversarial testing. Specifically, he
argues thatcounsel (a) failed to impeach Derrick Bunch; (b) failed to obtain an expert to
challenge the pathologist's findings; (c) allowed the pathologist to testify thatWoodard's cause
of death wasa punctured limg; (d)neglected to present rebuttal argument. He also contends that
the cumulative effect of these errors prejudiced his position. The state habeas court expressly
rejected each ofthese arguments.

As to claim 5(a), the state court found that counsel Daymen Robinson's alleged failure to

impeachDerrickBunch did not amount to ineffective assistance for the following reasons:
Cross-examination is a matter of trial strategy which cannot be

second-guessed in a collateral habeas proceeding. Sallie v. North
Carolina. 587 F.2d 636,640 (4th Cir. 1978)... Moreover, a review of
the record demonstrates that counsel thoroughly cross-examined the
witness. Further, the alleged inconsistencies were not 'glaring' as
petitioner alleges. The witness testified at both [sic] that he was
holding his brother by his belt loop to keep him from fighting the
petitioner. Bringing out testimony that he said [he] was not really
holding his brother would not have added anything to petitioner's
case. In any event, at least one other witness, Brandon Franklin,
testified that petitioner stabbed two people.
The Court [finds]petitionerhas failedto provedeficientperformance
or prejudiceand this portion of his claim is dismissed.
Resp. Ex. I at 8-9.

Federal law recognizes that "strategic choices made [bycounsel] after thorough

investigation... arevirtually unchallengeable." Grav v. Branker. 529 F.3d 220,229 (4th Cir.),
cert, denied. 129S. Ct. 1579 (2009), quoting Strickland. 446 U.S. at 690-91. As the Virginia

court recognized inthe foregoing order, cross-examination falls within the category ofstrategic
decisions bycounsel which will not support habeas relief. Sallie. 587 F.2d at 640. Even were
18

hatnot so,petitioner's theory thatfiarther questioning of Derrick Bunch would have changed the
outcome of his trial is fanciful. As reflected in the state court's order. Bunch testified that he was

attempting to restrain his brother by holding his beltloop to keep him away from petitioner.

Resp. Ex. K, Tr. 119-38, 120. Impeachment onthis point would have been counterproductive,
because Bunch's suggestion that his brotherwas actingin an aggressive manner tendedto

support petitioner's self-defense argument. Therefore, the state court's adjudication ofthis claim
was both factually reasonable and in accord with Strickland, supra, and it must be allowed to
stand. Williams. 529 U.S. at 412-13.

In claun 5(b), petitioner assertsthat coimsel provided ineffective assistance by failingto
obtain an expertto challenge the pathologist'sfindings as to the causeof the malicious wounding
victim's impairment. The state habeas court found no merit to this contention for the following
reason:

Petitioner further alleges counsel should have subpoenaed the
maliciotiswoundingvictim's medical records and an expert medical
witness to show that the victim's impairment came fi-om a previous
injury. The Court finds petitioner has failed to proffer by affidavit

any experttestimony that wouldhave shownthat the victim's injury
was not the result ofbemg stabbed in the lung by the petitioner. His
failure to do so is fatal to his claim.

[W]ithout a specific, affirmative showing of whatthe
missing evidence or testimony would have been, a
'habeas court cannot even begin to apply Strickland's
standards' because 'it is very difficult to assess
whether counsel's performance was deficient, and
nearlyimpossible to determinewhether the petitioner
was prejudiced by any deficiencies in counsel's
performance.'

Anderson v. Collins. 18 F.3d 1208, 1221 (5th Cir. 1994) (citation

omitted)...Thus,petitionerhasfailedto provedeficient performance
and this portionof his claimshouldbe dismissed.
19

Resp. Ex. I at 9-10.

TheVirginia Court of Appeals in its opinion concluded thatthe petitioner's failure to

provide anaffidavit to verify the testimony of a missmg witness, as required bysettled authority,
was fatal to this claim of ineffective assistance. Id; see Bassette. 915 F.2d at 941 (a claim of

ineffective assistance based on general assertions that additional witnesses should have been
called will not lie in the absence ofa proffer of the absent witnesses would have said). Because

petitioner failed to proffer the substance of thetestimony an expert witness would have offered to
rebutthe pathologist's testimony, the denial of reliefon claim5(b) is in accord withthat

principle, andthe state courts' determination must beallowed to stand, and federal habeas relief
is unwarranted. See Williams. 529 U.S. at 412-13.

In claim 5(c), petitionercontendsthat counsel rendered constitutionally deficient

performance by failing to object to portions of the medical examiner's testimony as to the murder
victim's causeof death, and by allowing the pathologist to testify that the causeof death was a

punctured limg. The state habeas court rejected this contention, as follows:
The Court fmds petitioner has failed to prove either prong of
Strickland. Petitionerfailsto profferanyexperttestimony that anyof
his theories regardingthe causeofdeathare true, or that the testimony
ofthe Commonwealth's expert was incorrect. ^ Muhammad.274
Va. at 18,646 S.E.2d at 95. Without such a proffer his allegations are
nothing more then speculation which fails to satisfy the demanding
Strickland test.

Resp. Ex. I at 10. As with claim 5(b), here, too, the absence of a proffer ofexpert testimony to
substantiate his contention that the pathologist's opinion as to the cause of deathwas incorrect is
fatal to the claim under federal as well as state law. See Bassette. 915 F.2d at 941. Therefore,

becausethe state court's result as was both factually reasonable and in accord with controlling

federal principles, the same result must occur here. Williams. 529 U.S. at 412-13.
20

In claim 5(d), petitioner asserts withoutexplanation that his attorney provided ineffective
assistance by neglecting to present rebuttal argument. In the state habeas proceeding, petitioner

arguedthat counsel should have offered an expertwitness on rebuttal to challenge the
pathologist's testimony. If he intends to makethat sameargiraient here, it fails for the reasons
expressed in connection with claim 5(b) - namely, that he has not proffered the testimony of any
such witness. Bassette. 915 F.2d at 941. To the extent that petitioner may intend to assert that

counsel should have presented any other rebuttal evidence, such a claim would be both
unexhausted and procedurallydefaulted, as it has not been presented to the state courts. Id. at
932. In addition, since petitioner makes no proffer of what additional evidence he believes
counsel should have offered in rebuttal, any such claim, even if it were cognizable on federal

habeasreview, would fail on the merits.^
In the concluding subsection of claim 5, petitioner argues that the cumulative effects of
trial counsel's asserted errors amounted to ineffective assistance. It is settled under federal law
that the cumulative effect of non-errors does not amount to error. See Fisher v. Aneelone. 163

F.2d 835,852 (4th Cir. 1998) (noting that, where it is determined that none ofcounsel's actions
amounted to constitutional error, "it would be odd, to say the least, to conclude that those same

actions, when considered collectively," deprived defendant ofa fair trial); Mueller v. Aneelone.
181 F.3d 557,586 n. 22 (4th Cir. 1999) (same). Here, then, where none of counsel's challenged

actions standing alone amounted to ineffective assistance, and where no prosecutorial
misconduct occurred, their aggregate effect likewise did not amoimt to constitutional error.

Accordingly, claim 5 as a whole warrantsno federal relief.

^It will be recalled that two additional arguments made in connection with this claim are
procedurally defaulted, as discussed supra.
21

Claim 6: In his sixth claim, petitioner charges counsel with providing ineffective

assistance by failing to "conductan appropriate factual/legal investigation" and erroneously
invoking self-defense as petitioner's sole defense. Petitioner asserts that had counsel conducted
an appropriate investigation, he would have presented a defense of manslaughter. The state court
found this assertion to be without merit because "[t]he record demonstrates counsel argued both

self-defense and heat of passion. Given the evidence presented at trial it was a reasonable

tactical decision to presenta self-defense argument." Resp. Ex. I at 12. That holding was based
on a reasonable interpretation of the facts. First, the record confirms that counsel in fact did

argue manslaughter to the jury, and the jury received a manslaughter instruction. Resp. Ex. K, T.
at 597; Ex. H, Mo. to Dismiss, Sub-Ex. A. In addition, as discussed above, tactical decisions lie

solely within the province ofcounsel, and generallywill not support habeas relief Gray. 529
F.3d at 229. Here, in light ofthe testimony that petitioner was attacked by several men and hit in
the head with a television set, coimsel's attempt to persuade the jury that petitioner was trying to
defend himself when he stabbed the decedent was a reasonable trial strategy. Resp. Ex. K, T. at
593. Thus, the state court's denial of relief on this claim was in accord with these federal

principles, and the claim must likewise be dismissed here. Williams. 529 U.S. at 412-13.
Claim 7. In his seventh claim, petitioner argues that counsel "erroneously added damaging

unsupported facts to the record." The Norfolk Circuit Court on habeas review disagreed for the
following reasons:
Petitioner contends that coxmsel should not have conceded in a

motion to set aside the verdict that petitioner was armed with a pocket
knife when he went to the house where the stabbings took place.

Petitioner alleges that, had counsel not conceded that issue, he might
have prevailed on appeal. Petitioner is simply incorrect. Several
witnesses testified that petitioner stabbed two people with a pocket
knife. Given that there was no evidence at trid that the knife came
22

from someone present at the home it was a reasonable inference that

petitionerhad the knife prior to his arrivaland any argument to the
contrary had no reasonable chance ofsuccess.
Counsel's concession therefore was reasonable and his attempt to
obtain a right to arm instructionwas reasonableunder the facts in the
case. Moreover, 'counsel is not ineffective merely because he
overlooks one strategy while vigilantly pursuing another.' Williams
V. Kellv. 816 F.2d 393,950 (4th Cir. 1987).
Resp. Ex. 1 at 12.
Petitioner's assertion that coimsel "added damaging unsupported facts to the record" is

specious. In fact, several witnesses testifiedat trial that they saw petitionerwith a knife, and that
no one else who was in the house when the crimes took place was armed. Rep. Ex. K, T. at 105-

06,242. Under such circimistances, the state habeas court's conclusion that counsel did not

provide ineffective assistance when he acknowledged that petitionerwas armed with a pocket
knife was both factually reasonable and in accord with applicable federal authorities. Strickland,

supra. Accordingly, the state habeas court's ruling must be allowed to stand, and no basis for
federal habeas relief exists. Williams. 529 U.S. at 412-13.

Claim 8: In his eighth claim, petitioner faults trial counsel for failing to request a jury
instruction on the abolition of parole. However, contrary to petitioner's assertion, the state habeas
court determined, and the record reflects, that the jury actually did receive such an instruction.

Resp. Ex. I at 13;Ex. H, Sub-Ex. B. Therefore, no extended discussion is required to determine
that claim 8 warrants no relief

Claim 9: In his ninth claim, petitionercontendsthat appellatecounsel rendered

ineffective assistance by failing to perform a thorough and independent review of the record

before adopting the argument trialcounsel made in the motion to set aside the verdict. Thestate
habeas court dismissed the claim on the following holding:
23

In claim F, petitioner alleges appellate connsel should have more
thoroughly examined the record. He alleges that, that he done so, he
would have argued that petitioner was not armed when he entered the
residence. Petitioner has failed to satisfy either prong of the
Strickland test.

Counsel was not ineffective for failing to present this argument on
appeal. Counsel's choice of which issues to raise on appeal is
virtually unassailable. See Jones v. Barnes. 463 U.S. 745 (1983)
(counsel cannot be found ineffective for failing to raise every nonfrivolous issue identified by defendant); Townes v. Conmionwealth.
234 Va. 307, 320, 362 S.E.2d 650, 657 (1987) (appellate counsel
decides what questions should be raised on apped). This is true
because 'appellate counsel is given significant latitude to develop a
strategy that may omit meritorious claims in order to avoid burying
issues in a legal jungle.' Burket v. Aneelone. 208 F.3d 172,189 (4th
Cir. 2000). 'The attorney need not advance every argument,
regardless ofmerit, urged by the appellant and must play the role of
an active advocate,' Fitzgerald v. Bass. 6 Va. App. 38, 56, 366
S.E.2d 615,625 (1988) (quoting Evitts v. Lucev. 469 U.S. 387, 394
(1985)) (emphasis added). In other words, counsel is not
constitutionally obligated to raise every possible claim on appeal and
a failure to do so does not render counsel's performance deficient.
Petitioner has also failed to demonstrate Strickland prejudice. Given
the evidence at trial, such a claim had no reasonable probability of
success on appeal.

Resp. Ex. I at 14.

As the state habeas court recognized, the Strickland analysis applies to claims of
ineffective assistance on appeal as well as at trial. See Matire v. Wainwrisht. 811 F.2d 1430,

1435 (11th Cir. 1987). For the reasons that are cogentlydiscussed in its foregoing order, the state
habeas court correctly applied that standard in dismissing petitioner's claim. Contrary to

petitioner's apparent understanding, appellate counsel'sselection of issues to present on appeal
is constrained by the arguments counsel raisedat trial. Va. Sup. Ct. Rules5:25, 5A:18.
Therefore, the state court's dismissal of this claim was both factually reasonable and in accord

24

with federal principles, and no federal habeas reliefis warranted. Williams. 529 U.S. at 412-13.
Claim 10: In his tenth claun, petitioneralleges that he received ineffective assistanceon

appeal because appellate counsel failed to argue petitioner's claims as constitutional violations.
As the state habeas court found:

Petitioner has failed to demonstrate that there is any basis to
'federalize' his appellate claims. Moreover, it was counsel's choice
which issues to raise on appeal. See Jones v. Barnes. 463 U.S. 745

(1983)([the rule that] counsel cannotbe found ineffective for failing
to raise everynon-frivolousissue identifiedbya defendantis virtually
unassailable).

Finally the Court finds petitioner has failed to demonstrate that
raising constitutional claims would have led to a reasonable
probability of a different result on appeal.
Resp. Ex. I at 15.

The state court's adjudication of this claim was both factually reasonable and in accord

with the controlling principles of Strickland supra. It is well established in this circuitthat
counsel is not required to makefrivolous arguments in order to be effective. Moodvv. Polk. 403
F.3d 141,151 (4th Cir. 2005), cert, denied. 546 U.S. 1108(2006). Petitionerhere makes no

plausible showing that framing his appellate claims as errors of constitutional dimension would
have changed the outcome of the appeal, and he thus fails to demonstrate the prejudice required

to satisfy the Strickland analysis. Accordingly, the state court's rejection of this claim warrants
no federal habeas relief Williams. 529 U.S. at 412-13.

Claim 11: In his eleventh claim, petitioner argues that trial counsel was ineffective for

failing to strike jurorNewton and to ensure thatthejurywas not biased. Petitioner contends that
coimsel should have eliminated Newton for cause based upon his statement during voir dire that

two members of his family hadbeenmurdered. Pet.at imnumbered pp. 51-52. Thestatehabeas

25

court found no merit to this argument for the following reasons:

The record reflects that the jury clearly indicated theycouldprovide
petitioner a fairtrial andfollow thepresumption ofinnocence. Thus,
no ftirtherclarificationwas required Further,petitioner has failed to
proffer any evidence thatthejury did not follow the instructions of
the court.

Nor is a prospective juror ger se disqualified because a family
member has been a victim of a violent crime.

Mackall v.

rnmrnnnwealth. 236 Va. 240, 252, 372 S.E.2d 759, 767 (1988).

Finally, whichjurors to strikewith peremptory strikeswas a tactical
decision and [petitioner] has failed to failed to proffer any evidence

that but for juror Newton's presence of[sic] die jury a reasonable
probability exists of a different result.
Resp. Ex. I at 16.
The state habeas court's resolution of this claim was both factually reasonable and in

accord with controlling federal principles. As the statehabeascourt observed, the trial record
reflects that the jurors affirmed underoath that they wouldprovide petitioner with a fair trial and
would honorthe presumption of innocence. Resp. Ex. K, T. at 21,25. Federal law recognizes

thatjurorimpartiality is an issue of historical fact thatis entitled to the § 2254(d) presimiption of
correctnesswhere there is fair record supportfor the trial court's ruling. Patton v. Yount.467

U.S. 1025 (1984). Pursuant to §2254(e)(l), sucha presumption can be overcome onlyif the
habeasapplicant clearly and convincingly rebutsit. Here, juror Newton made no statements to
indicate that he had "such fixed opinions that he could notjudge impartially [petitioner's] guilt,"
Patton. 467 U.S. at 1035, so nothing in the record calls into question the trial court's

assessment thatthejury could render an impartial verdict. Petitioner has come forward with

nothing more than speculation to overcome thatpresumptively correct determination. Under
these circumstances, the state habeas court's rejection ofpetitioner's contention that counsel

rendered ineffective assistance by failing to strike jurorNewton to insure an impartial jury was
26

both factually reasonable and inaccord wth Strickland, supra, and it must remain undisturbed.
Therefore, no federal habeas relief is warranted. Williams. 529 U.S. at 412-13.
V. Conclusion

For (he foregoing reasons, respondent's Motion to Dismiss must begranted, and this

petition must bedismissed with prejudice. An appropriate Order and judgment shall issue.

is. ^.5^yof

Entered this

2016.

Alexandria, Virginia

T.S.Ellis, III

United States District Judge
v

27