Brantley v. Johnson

Filing 41

MEMORANDUM OPINION. Signed by District Judge Gerald Bruce Lee on 09/12/2017. (dvanm, )

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

Harry Brantley,
Petitioner,

)
)

v.

)

Director, Va. Department of Corrections,
Respondent.

)
)

)

l:16cv661 (GBL/JFA)

)

MEMORANDUM OPINION

This Matter comes before the Court onrespondent's Motion to Dismiss a petition for a

writ ofhabeas corpus pursuant to 28 U.S.C. §2254 filed by Harry Brantley, a Virginia inmate
proceeding pro se. Brantley challenges the constitutionality of convictions entered in the Circuit
Courtof Prince George County.1
I. Background

On December 5,2013, petitioner was convicted following a jury trial of two counts of

attempted robbery, two counts of useof a firearm in the commission of a robbery, malicious
wounding, anduse of a firearm in the commission of a malicious wounding. Case No. CR130017-00 through -05. He received consecutive sentences for the various offenses that totaled an

active term of forty-two (42) years incarceration. Sentencing 12/5/2013, T. 13. The charges
stemmed from the following incident:

The victims, who are married, own a restaurant. Linda Purdie, one of
the victims, testified that on Friday nights after they close the
restaurant, she and her husband routinely take the money from the
restaurant to their home in a briefcase.

Linda Purdie stated her

husband always places the briefcase on the rear seat of their vehicle

behind the driver's seat.

One Friday evening, they closed the

Brantley has a separate § 2254 petition pending inthis court as Case No. 16cvl014 (LO/IDD)
concerning convictions entered in the Hopewell Circuit Court. See Order, Dkt. No. 39.

restaurant, left work together, and drove into the garage of their
home.

Linda Purdie exited the vehicle and was near the rear

passenger door when she saw a person standing in front of her with
a bag over his head. The person was later identified as appellant.

LindaPurdie stated appellant hada gun in one handand a pink bag
over his shoulder. She walked toward appellant, and he said, *Don't
move.' Linda Purdie continued to walk toward appellant, and she
grabbed his arm. Appellant pushedher to the ground, and she yelled
for her husband. Linda Purdie then heard a gunshot and a second
gunshot. Herhusband, Kenny Purdie, and appellant had exchanged
gunfire and both men were shot. Appellant fled the scene, but he left
the pink bag in the garage.
Kenny Purdie testified he drove into the garage and opened the back
door ofhis truck. He thought he saw 'something behind' his truck.
He then heard his wife exclaim, 'He's got a gun.' Kenny Purdie
retrieved his gun from the truck. Kenny Purdie statedthat appellant
was standing by the middle of the tail gate of the truck and that
appellant shot him in the shoulder. Kenny Purdie then shot at
appellant, who flinched and fled.

Jasmine Reid testified that she lived with appellant at the time ofthe
incident and that their residence was 'around the corner' from the

shopping center where the restaurant owned by the victims was
located. On the evening ofthe incident, she saw appellantat a child's
party, but he left the partybefore it ended at 8:00 or 9:00 p.m. Reid
testified that she next saw appellant at about 11:20 p.m. and that he
had been shot in the shoulder. Reid statedappellant also told her he
had shot someone. Reid and appellant cleaned the wound, and
appellanttook a shower. Reid testified thatwhile appellant was in the
shower he was talking to himself and that he twice said he 'should

havetakenthe money.' In addition, Reid identified the pink bagthat
appellant left at the scene as belonging to her.

Detective Reed testified the recovered pink bag contained, among
other things, two rolls of duct tape and a set of keys that appeared to
go with toy handcuffs.

Brantlev v. Commonwealth. R. No. 2381-13-2 (Va. Ct. App. Aug. 25,2014), slip op. at 2-3.

2Because a federal court on habeas review of a state conviction must defer to findings of fact
made by statetrial and appellate courts, 28 U.S.C. § 2254(d), it is appropriate to look to the state
court's recitation of the salient facts.

Petitioner appealed the convictions of attempted robbery and related firearms offenses to
the Court of Appeals of Virginia, arguing that the evidence was insufficient to sustain those

convictions. The appeal was denied on August 25,2014. Brantlev v. Commonwealth, supra.
On April 16,2015, the Supreme Court of Virginiarefused a petition for further appeal. Brantlev
v. Commonwealth. R. No. 141339 (Va. Apr. 16, 2015).

On January 16,2015, petitioner filed a pro se petition for a state writ of habeas corpus in
the Circuit Court of Prince George County. The petition challenged only the convictions for
malicious wounding and related firearms offenses on the following grounds:
A.

Counsel was ineffective for failing to object to the
admission of contaminated evidence.

B.

Counsel was ineffective for failing to object to the
admission of expert reports where an expert was not
present, and for failing to subpoena an expert to
challenge the admission of forensic reports.

C.

The Commonwealth engaged in prosecutorial
misconduct by making improper closing arguments.

D.

Counsel was ineffective for failing to subpoena an
expert witness and to present a defense to contradict
the Commonwealth's theory.

E.

Counsel was ineffective for failing to argue on appeal
that the Commonwealth's closing argument was
improper.

F.

Counsel was ineffective for failing to argue on appeal
that

the

Commonwealth's

failure

to

disclose

impeachment evidence prior to trial was improper.
G.

Counsel was ineffective for failing to "include jury
instructions elements of a mistrial."

H.

Counsel was ineffective for informing petitioner he
was not appealing certain issues.

I.

The trial court abused its discretion by finding that the
Commonwealth was not required to disclose
impeachment evidence it intended to use at trial in the
form ofrecordingofthe petitioner on the jail phone.

J.

The Commonwealth engaged in prosecutorial
misconduct by failing to disclose impeachment
evidence prior to trial.

K.

The Commonwealth engaged in prosecutorial
misconduct by introducinga"forensic analysis report
that wasn't proven beyond a reasonable doubt."

L.

The trial court abused its discretion by failing to
perform an in camera review of the jail phone
recordings.

M.

Counsel was ineffective for failing to argueon appeal
that the trial court abused its discretion by failing to
perform an in camera review of the jail phone
recordings.

N.

Counsel was ineffective for failing to move the court
to review the jail phone recordings in camera and for

failing to request a continuance.3
The court granted respondent's Motion to Dismiss the petition in a letter opinion on September
15,2015, and a Final Order was entered on October 8,2015. Case No. CL-230 at 164-68,189-

90. Petitioner appealed that result to the Supreme Court ofVirginia which refused the appeal on
June 16,2016. Brantlev v. Dir.. Dep't of Corr.. R. No. 160054 (Va. June 16,2016).

Meanwhile, Brantley filed a separate petition for a writ of habeas corpus as to his
attempted robbery and related firearms convictions in the Supreme Court of Virginia on June 12,
2015, raising the following claims:
A.

Counsel was ineffective for failing to file a motion for

Consistent with the Respondent's Brief, this proceeding is referred to herein as "State Petition
I."

discovery and present 'exculpatory evidence" to the
jury.

B.

The Commonwealth engaged in prosecutorial
misconduct by failing to disclose the results of a
fingerprint analysis.

C.

Counsel was ineffective for (1) failing to object to a
motion to nolle pros by the Commonwealth, (2)
failing to argue the "exculpatory evidence," and (3)
failing to move for a continuance.

D.

The evidence was insufficient to establish petitioner's
guilt.

E.

Counsel was ineffectivefor failing to raise appealable
issues on direct appeal.

F.

Counsel was ineffective for failing to object to an incourt identification.

G.

The Commonwealth engaged in prosecutorial
misconduct by moving for the admission of false and
inadmissible evidence.

H.

Counsel was ineffective for failing to object to false
and inadmissable evidence.4

The Supreme Court of Virginia dismissed the petition on January 7, 2016. Brantlev v. Clarke. R.
No. 150452 (Va. Jan. 7,2016).

Petitioner then turned to the federal forum and timely filed the instant federal petition on
July 6,2016 followed by an amended petition on March 24, 2016. In the amended petition,
which is the operative petition in the case (Dkt. No. 16), petitioner makes the following claims:
1.

Counsel was ineffective for failing to argue the proper
rule to suppress recordings of his jail phone
conversations or to compel the Commonwealth to
disclose the recordings for inspection.

4This proceeding is referenced here as "State PetitionII.
5

2.

His rights were violated by prosecutorial misconduct
when the Commonwealth failed to disclose recorded

phone conversations made by the petitioner while
incarcerated.

3.

Counsel was ineffective for failing to object to an
improper jury instruction and failing to request that
the jury be instructed regarding 'intent' associated
with attempted robbery.

4.

The evidence was insufficientto sustain the robbery
convictions as it failed to establish that he had the

intent to take money from the victims.

5.

Counsel was ineffective for failing to appeal the
malicious wounding and related firearm convictions.

6.

Counsel was ineffective for failing to raise
prosecutorial misconductas an issue on direct appeal.

7.

Counsel was ineffective for failing to adequately
investigate petitioner's gunshot wound.

Respondent filed a Motion to Dismissthe petition along with a supporting brief on
August 10,2016, and provided petitionerwith the notice required by Roseboro v. Garrison. 528

F.2d 309 (4th Cir. 1975) and Local Rule 7K. (Dkt. No. 17 - 20) By an Orderdated January 24,
2017, the Motion to Dismiss was denied without prejudice to renewal, with instructions that the
state court records be clarified. (Dkt. No. 30) Respondent filed a renewed Motion to Dismiss and

supportingbrief on February 22,2017, and again provided petitioner with the appropriate
Roseboro notice. (Dkt. No. 32-35) Petitioner filed a Response Brief. (Dkt. No. 24,40)
Accordingly, this matter is now ripe for disposition. For the reasons which follow, respondent's
Motion to Dismiss the petition will be granted, and Brantley's Motion to Appoint Counsel will
be denied, as moot.
II. Exhaustion

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); Granberrv v Greer. 481 U.S. 129 (1987); Rose
v. Lundv. 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "must

give the state courts one full opportunity to resolve any constitutional issues by invokingone
complete round of the State's establishedappellate review process." O'Sullivan v. Boerckel. 526
U.S. 838, 845 (1999). 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, e.g.. Duncan v. Henry. 513
U.S. 364 (1995).

"A claim that has not been presentedto 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

petitioner attempted to present it to the state court." Baker v. Corcoran. 220 F.3d 276,288 (4th
Cir. 2000). "The procedural bar that gives rise to exhaustionprovides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents federal habeas

review of the defaulted claim." Id at 288 (citing Grayv. Netherland. 518 U.S. 152,161 (1996)).
Thus, an unexhausted claim that would be defaulted if presented in state court is deemed to be
simultaneously exhausted and procedurallybarred from federal review. Bassette v. Thompson.
915 F.2d 932 (4th Cir. 1990). Here, respondent correctly acknowledges that petitioner's claims
are exhausted either because they were previously presented to the Supreme Court of Virginia or
because they would now be procedurally barred from consideration in the state forum.
III. Procedural Default

Claims 1,2, and 3 of this federal petition are procedurally defaulted from federal review.5

In Claim 1, Brantley argues that counsel provided ineffective assistance by failing to argue the
proper rule to suppress recordings of his jail phone conversations or to compel the
Commonwealth to disclose the recordings for inspection; this position was first raised as Claim

D in State Petition II filed in the Supreme CourtofVirginia. In Claim 3, he contends that
counsel was ineffective for failing to object to an improperjury instruction and to an instruction

regarding the 'intent' element of attempted robbery; this contention was originallymade at Claim
K in State Petition II. The Supreme Court ofVirginia held that both of these claims were "barred

as improperly successive"underVa. Code § 8.01-654 (B)(2) because Brantley "could have
raised these claims in his first petition but did not, and petitioner cannot circumvent the
prohibition on successive habeas petitionsby separately challenging his several counts of
conviction that stem from the same trial and sentencing." Brantlev v. Clarke. R. No. 150959
(Va. Apr. 14,2016) at 3.

In Claim 2, petitioner argues that he was the victim of prosecutorial misconduct when the
Commonwealth failed to disclose recorded phone conversations made ofthe petitioner while he
was incarcerated. When petitioner first made this contention as Claim J in State Petition I, the

Circuit Court determined that the claim was barred by the holding of Slavton v. Parrigan. 215 Va.
27,205 S.E.2d 280 (1974) because it "could have been raised and adjudicated at Brantley's trial

andhe could have pursued [it] on appeal...." Case No. CL-230 at 166.6

Respondent argues thatClaim 7 also is procedurally defaulted because it wasdetermined to be
repetitious in Brantley's second state habeas proceeding. Brantlev v. Clarke. R. No. 150949 at 2.
However, because the claim was adjudicated on the merits in Brantley's first state habeas action, the
Court does not find that the claim is defaulted, and it will be discussed on the merits infra.

6Because the Supreme Court ofVirginia refused further review ofthisorder without explanation,
see Brantlev v. Dir.. Dep't of Corr.. R. No. 160054 (Va. June 16,2016), the reasoning ofthe Court
8

If a state court finds, based on an adequate andindependent state-law ground, that a claim

is procedurally defaulted from review, then theclaim is notreviewable in federal habeas corpus.
See Coleman v.Thompson. 501 U.S. 722,729-30 (1991); Williams v. French. 146 F.3d 203,

208-09 (4th Cir. 1998) (internal citations omitted). A state procedural rule is "adequate" if it is
"regularly or consistently applied by the state court," and is "independent" if its application does

not depend on the federal Constitution. Williams. 146 F.3d at 209 (internal citations omitted).
Both of the procedural rules used by the Virginia courts to default petitioner's claim 1,2 and 3
have been held to be independent and adequate. See Mackall v. Angelone. 131 F.3d 442,446
(4th Cir. 1997)(determining procedural barof successivehabeas applications in Va. Code
§8.01-654(B)(2) to be a well-recognizedadequate and independent ground); Mu'min v. Pruett.
125 F.3d 192,196-97 (4th Cir. 1997) ("The procedural default rule set forth in Slavton

constitutes an adequate and independent state law ground for decision.").
Federal courts may not review procedurally barred claims absent a showing of cause and
prejudice or a fundamental 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 counsel, (2) a factor external to the defense which impeded compliance
with the state procedural rule, or (3) the novelty ofthe claim. See Coleman v. Thompson. 501
U.S. 722, 753-54 (1991); Clozza v. Murray. 913 F.2d 1092,1104 (4th Cir. 1990). Importantly,
a court need not consider the issue of prejudice in the absence of cause. See Kornahrens v. Evatt.
66F.3d 1350,1359 (4th Cir. 1995). cert, denied. 517 U.S. 1171 (1996).

In his Response to the Motion to Dismiss, Brantley appears to argue that the default ofhis

of Appeals is imputed to it. See Ylst v. Nunnemaker. 501 U.S. 797, 803 (1991).

two ineffective assistance of counsel claims should be excused pursuant to Martinez v. Rvan.
U.S.

, 132 S.Ct. 1309 (2012). (Dkt. No. 40 at 9) There, the Supreme Court:
... held that a federal habeas petitioner who seeks to raise an
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 claimis a substantial one; (2)
the 'cause' for default 'consists] of there being no counsel or only

ineffectivecounsel during the state collateral reviewproceeding'; (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). The Court in that case stressed that "[t]o 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 prisonermust demonstrate that the claim has some

merit." Martinez. 132 S. Ct. at 1318. It is the petitioner'sburdento demonstrate that his claims

are "substantial." Fowler. 753 F.3d at 461. Petitioner here fails to make such a showing as to
either of his defaulted ineffective assistance claims.

To establishineffective assistance of counsel, a petitioner must show that (1) "counsel's
performance was deficient" and (2) "the deficient performance prejudiced the defendant."

Strickland v. Washington. 466 U.S. 668, 687 (1984). To prove that counsel's performance was
deficient, a petitioner must show that"counsel'srepresentation fell below an objective standard
of reasonableness" id. at 688, andthat the "acts andomissions" 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 presumptionthat counsel's conduct
falls within the wide range of reasonable professional assistance." Id at 689; see also. Burket v.
10

Angelone. 208 F.3d 172,189 (4th Cir. 2000) (reviewing court"must be highly deferential in

scrutinizing [counsel's] performance andmust filter the distorting effects of hindsight from [its]
analysis"); Spencer v. Murray. 18 F.3d 229,233 (4th Cir. 1994) (court must "presume that

challenged actsare 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." Murray v. Carrier. 477 U.S. 478,494 (1986) (citations
omitted, emphasis original). The two prongs ofthe Strickland test are "separate and distinct
elements of an ineffective assistance claim," and a successful petition "must show both deficient
performance and prejudice." Spencer. 18 F.3d at 233. Therefore, a court need not review the

reasonableness of counsel's performance if a petitioner fails to show prejudice. Ouesinberrv v.
Tavlore. 162 F.3d 273,278 (4th Cir. 1998).

In Claim 1, Brantley argues that his counsel was ineffective for failing to argue the proper
rule to suppress recordings of his jail phone conversations or to compel the Commonwealth to

disclose the recordings for inspection. Specifically, Brantley contends that the Commonwealth
was compelled pursuant to Rule 3A:11(b) to disclose all ofthe statements he made that it

intended to use at trial. However, the rule upon which Brantley relies in fact requires only that
statements made to law enforcement officers be disclosed in pretrial discovery. See Rule

3A:1l(b)(l)(I). Because statements Brantleymade on the jail telephone are not covered by Rule

11

3A:11(b), the Commonwealth had no duty to disclose those statements. Moreover, as the
statements at issue were made by Brantley himself, he could not have been prejudiced by any
failure of the Commonwealth to disclose them, as he was already aware ofthe contents of the

statements and could have disclosed them to his attorney himself. See Epperlv v. Booker. 235
Va. 35,45,366 S.E.2d 62,67 (1988) (noting that petitioner "could have disclosed his own

statements to his own attorneys as they were preparing his defense."). Since petitioner fails to
establish either deficient performance by counsel or prejudice stemming from his efforts with
respect to Claim 1, the allegations of ineffective assistance are not substantial, and Martinez does
not apply to excuse its procedural default.

In Claim 3, Brantley asserts that his lawyer provided ineffective assistance by failing to

object to an improperjury instruction and failing to requestthat the jury be instructedregarding
the 'intent' associated with attempted robbery. This claim is directly refuted by the record. The

jury was instructedthat in orderto find Brantley guilty, the Commonwealth had to prove that he
"intended to commit robbery of [the victim]" and that he "did a direct act towards the

commission ofthe robbery, which amounted to the beginning ofthe actual commission of he

robbery." Tr. 9/3/2013 at 192-93. Since the jury thus was properly instructed on attempted
robbery, any objection by counsel would have been futile, and it is well established in federal law
that an attorney has no duty to make meritless arguments or objections. Moody v. Polk. 408 F.3d

141,151 (4th Cir. 2005) (citing Murray v. Maggio. 736 F. 2d 279, 283 (5th Cir. 1984).
Accordingly, Claim 3 is not a substantial claim of ineffective assistance, and Martinez does not

apply to excuse its procedural default.
Because the Martinez exception does not apply to Claims 1 and 3 ofthis petition, and

because petitioner makes no viable showing of cause and prejudice for the default of Claim 2 or

12

the existence of a fundamental miscarriage ofjustice in his Response, these claims are

procedurally barred from federal review. Harris. 489 U.S. at 262.
IV. 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 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 of
each standard. See Williams v. Tavlor. 529 U.S. 362.412-13 (20001 A state court's

determinationruns afoul of the "contraryto" standardif it "arrives at a conclusion opposite to
that reached by [the United States Supreme] Court on a question of law or if the state court
decides a case differently than [the United States Supreme] Court has on a set of materially
indistinguishable facts." IdL at 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 of the prisoner's case." Id Importantly, this standard of reasonableness is an objective one.
Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court

decision that previously addressed the claims rather than the petitioner's free-standing claims
themselves." McLee v. Angelone. 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
V. Analysis
In Claim 4 of this petition, Brantley argues that the evidence was insufficient to sustain

his convictions of attempted robbery and the related firearms offenses. When he made the same

13

argument on direct appeal, the Court of Appeals found it to be without merit, as follows:
Here, appellant wore a mask, he possessed a gun, and he carried a bag
containing duct tape when he confront the victims in their garage after
they arrived home from their restaurant on a Friday night. Evidence
was presented that the victims routinely had cash in their vehicle on
Friday nights. While no evidence showed appellant specifically
demanded money from the victims, he pointed the gun at Linda
Purdie and told her not to move. In addition, appellant shot Kenny
Purdie as he stood near the door to the back seat ofthe vehicle where

the money was located. Furthermore, appellant fled the scene without
taking any money and, a short time after the incident, appellant was
heard saying he "should have taken the money." "The specific intent
in the person's mind may, and often must, be inferred from that
person's conduct and statements." Martin v. Commonwealth. 13 Va.
App. 524, 527, 414 S.E.2d 401, 402 (1992). From the evidence
presented, the jury could infer appellant had the specific intent to steal
money from the victims. A fact finder is entitled to draw reasonable
inference from proven facts, so long as "all circumstances proved
[are] consistent with guilt and inconsistent with innocence and
exclude all reasonable conclusions inconsistent with guilt."
McMorris v. Commonwealth. 276 Va. 500,506,666 S.E.2d 348,351

(2008). Accordingly, the evidence was sufficient to prove beyond a
reasonable doubt that appellant committed the charged offenses.

Brantlev v. Commonwealth. R. No. 2381-13-2, slip op. at 3-4.

On federal habeas review, the standard for a claim challenging the sufficiency of the
evidence supporting a state conviction is "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307, 319 (1979) (emphasis
original). The federal court is required to give deference to findings of fact made by the state
courts, and this presumption of correctness applies to facts found by both trial and appellate
courts. 28 U.S.C. § 2254(d); Sumner v. 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 holding that a federal habeas court is prohibited from either "considering] anew the

14

jury's guilt determination or"replacing] the state's system of direct appellate review"). Instead,
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 expressed in the Court of Appeals' opinion, it is apparent that a

rational trier of fact couldhave found Brantley guilty ofthe attempted robberies and firearms
offenses with which he was charged. See Jackson. 443 U.S. at 319. Accordingly, the state
courts' denial of relief on this claimwas neither contrary to, nor an unreasonable application of,
clearly established federal law, nor was it based on an unreasonable determination ofthe facts.

Accordingly, the same result is compelled here. Williams. 529 U.S. at 412-13.
In claim 5, Brantley contends that he received ineffective assistance of counsel because

counsel failed to appeal the malicious wounding conviction and related firearms offenses after

telling Brantley that doing so wouldbe futile. In claim 6, he asserts thatcounsel provided
ineffective assistance by failing to raise a claim of prosecutorial misconduct on direct appeal.
When Brantley madethese samearguments in his habeas corpus application to the Prince George
Circuit Court ("State Petition I"), they was denied for the following reasons:
... Brantley asserts that counsel was ineffective for informing the
petitioner "he wasn't appealing the offenses in which I seek relief
because he felt there was no merit to do so."

However, Brantley has not identified with specificity how the failure
ofcounsel to appealon these groundswas objectively unreasonable.
Judicial scrutiny of trial counsel's performance must be highly
deferential. Strickland. 466 U.S. at 689. To succeed on his claim

here, Petitionermust overcome the presumptionthat the challenged
actions "might be considered sound trial strategy." Id. An attorney
has no duty to raiseon appeal every non-frivolous issue requested by
the defendant. Jones v. Barnes. 463 U.S. 745 (1983). Rather, the
"process ofwinnowing out weaker claims on appeal and focusing on
those more likely to prevail, far from being evidence of

incompetence, is the hallmarkofeffective appellateadvocacy." Id. at
751-52.

Under the facts and circumstances of this case, trial
15

counsel's actions were reasonable and fell within the wide range of
professionally competent assistance. Brantley has not established
either deficient performance or prejudiceas required by Strickland.
CaseNo.CL-230atl67.

As the state court acknowledged, the Strickland analysis applies to claims of ineffective

assistance on appeal as well as at trial. Matire v. Wainwright. 811 F.2d 1430,1435 (11th Cir.
1987). Because "appellate counsel is given wide latitude to develop a strategy," Lovitt v.
Angelone. 208 F.3d 172,189 (2000), appellate counsel is not required to assert every

conceivable claim on appeal, and counsel's choice of which appellate issues to pursue is virtually
unassailable. Jones v. Barnes. 463 U.S. 745,751-52 (1983). Here, there has been no showing
that appellate counsel's decision not to challenge the malicious wounding and related firearms

convictions on direct appeal satisfies either prong of the Strickland analysis. Accordingly, the

statecourts' rejectionof Claims 5 and 6 was factually reasonable and in accord with applicable
federal principles, Strickland, supra, and that result may not be disturbed here. Williams. 529
U.S. at 412-13.

In Claim 7, Brantley asserts that he received ineffective assistance because counsel failed

adequately to investigate petitioner's gunshot wound and to arguethat if the Commonwealth's
version of events were true a backpack recovered at the crime scene would have had a bullet

hole. When he madethis same argument in his first state habeas corpus petition, it was rejected
on the following holding:
Regarding Claim D, Brantley asserts that counsel was ineffective for
failing to subpoena an expert witness and to present a defense that
would have contradictedthe Commonwealth's theory. Specifically,
Brantley alleges that trial counsel should have presented an expert
witness to testify that had events unfolded according to the victim's
version ofthe incident, the backpack would have had a bullet hole in
it. However, Brantley has failed to proffer the names of any experts

16

his counsel should have consulted, nor has he proffered what
favorable information a defense expert would have testified to at trial.
His uncorroborated speculation is inadequate. By failing to make this
proffer, Brantley has not established deficient performance or
prejudice as required by Strickland, and Claim D must also fail.
Case No. CL-230atl67.

Federal courts recognize the principle that failure to provide an affidavit to verify the
testimony of a missing witness is fatal to a habeas petitioner's claim of ineffective assistance. See

Muhammadv. Warden. 274 Va. 3,19,646 S.E.2d 182,195 (2007) (failure to proffer affidavits
regarding testimony witness would have offered is fatal to Strickland claims). Because the

rejection of Claim 7 was factuallyreasonable and squarelyin keeping with such authorities, the
same result is compelled here. Williams. 529 U.S. at 412 -13.
IV. Conclusion

For the foregoing reasons, respondent's Motion to Dismissthis petition will be granted,
and the petition will be dismissedwith prejudice. Petitioner's Motion to Appoint Counsel will
be denied, as moot. An appropriate Order and judgment shall issue.

Enteredthis /

</

day of —H'r

2017

/s/

Alexandria
Alexandria, Virginia

Gera,d states Lee
Unjted Bruce Djstrjct Judge

17