Ford v. Johnson

Filing 26

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Raymond Alexander Ford, Jr., 8 MOTION to Dismiss filed by Gene M. Johnson. Signed by Magistrate Judge James E. Bradberry on 8/4/09 and filed on 8/5/09. Copy mailed on 8/5/09 (lhow, )

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

RAYMOND ALEXANDER FORD,

JR.,

#355796,

Petitioner,

vGENE M. JOHNSON, Director of the

2:09CV143

Virginia Department of Corrections,
Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This corpus under 28

matter U.S.C.

was §

initiated by 2254. The

petition matter

for

writ

of

habeas to the

was

referred

undersigned United States Magistrate Judge pursuant to the provisions of
28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72 of the Rules of the United
States District Court for the Eastern District of Virginia.
I. STATEMENT OF THE CASE A. Background

On September 13, 2005, in the Circuit Court of Fairfax County,

Virginia,

petitioner was convicted of malicious wounding and use. of a

firearm in the

commission of

a malicious wounding.

Petitioner was

sentenced to twenty-two years imprisonment.

Petitioner appealed to the

Virginia Court of Appeals, but on July 26, 2006, the appeal was denied by a single judge, and on October 23, 2006, the decision was upheld by
a three-judge panel. Petitioner then appealed to the Supreme Court of

Virginia, which refused the appeal on March 20, 2007. Petitioner filed a petition for writ of habeas corpus in the

Circuit Court of Fairfax County, but on May 23, 2008, the petition was

dismissed.

Petitioner appealed to the Supreme Court of Virginia, which
2008.

refused the appeal on December 30,

On March 26,

2009,

petitioner filed a petition for writ of

habeas corpus in this Court,
motion to dismiss and Rule

and on May 8,
5 answer. This

2009,

respondent filed a
is now ripe for

matter

consideration.
B. Grounds Alleged

Petitioner alleges the following grounds:
1. Counsel was ineffective for:

a.

petitioner that the police suspected an H&K firearm
to have been used in the shooting;

type

failing to investigate the H&K (Heckler and Kochautoloading pistol) firearm or disclose

to

b.

an independent forensic expert;

failing to interview the state's forensic expert or conduct an independent investigation by consulting
to review the evidence
failing

c.

continuance to conduct an investigation;

commencement

failing

of

trial

and

to

before

request

the

a

d.

petitioner that Lee was going to be a witness;

failing to interview or investigate Ms. Lee (petitioner's former girlfriend) or disclose to

e.

failing to make hearsay objections regarding the forensic expert's testimony and the hearsay evidence relied upon by the expert;
of the prosecutor;

f.
g.

failing to object to the improper closing arguments
closing

argument;

conceding to the Commonwealth Attorney's

2.

not bear adequate indicia of reliability;

Petitioner's right to confrontation was violated where hearsay evidence relied upon by the forensic expert did

3.

The forensic expert's testimony should not have been admitted because it was more prejudicial than probative;
The prosecutor's closing arguments were improper and violated petitioner's right to due process and a fair
C2TXclL

4.

IL

FINDINGS OF FACT AND CONCLUSIONS OF I.AW
A. Motion to Dismiss Standard

In ruling on a motion to dismiss for failure to state a claim

upon which relief can be granted, the complaint is construed in the light most favorable to the plaintiffs and their allegations are taken as true.
See Brower v. County of Inyo, 489 U.S. 593, 598 (1989)(citing Scheuer v.

Rhodes,

416 U.S.

232,

236

(1974));

Jenkins v. McKeith^n.

395 U.S.

411,

421

(1969).

The complaint should not be dismissed unless it appears to

a certainty that the plaintiff can prove no facts in support of his claim

which would entitle him to relief.
45-46
543,

See Conlev v. Gibson.

355 U.S. 41,
247 F.3d

(1957); GE Inv. Private Placement Partners II v. Parker.
548 (4th Cir. 2001); Martin Marietta Corp. y. Tnf'l

Telettnmms.

Satellite
construe

Org.,
the

991

F.2d

94,

97

(4th
in

Cir.
of

1993).
the

The

courts

must
if

complaint
remote

liberally

favor
In

plaintiffs,
a 12 (b) (6)

even

recovery appears

and unlikely.

ruling

on

motion,

the court primarily considers the allegations in the complaint but may

consider attached exhibits and documents incorporated by reference.
Simons v. Montgomery County Police Officers.
1985); Wolford v. Budd Co..
JL

See

762 F.2d 30,
129-32

31

(4th Cir.

149 F.R.D.

127,

(W.D. Va. 1993).

Standard of Review for State Court Findings

The federal statute regarding review of state court actions
provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with merits
respect
adjudication of

in

to

any

State

claim
the

court

that

claim--

proceedings

was

adjudicated on

unless

the

the

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established

Supreme Court of the United States;

Federal

law,

as

determined
or

by

the

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of
proceeding.

the

evidence

presented

in

the

State

court

28 U.S.C.

§ 2254(d) (2000).

This

standard,

adopted by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, is consistent with the Fourth Circuit's interpretation of 28 U.S.C. § 2254(d) prior to the
passage of the new law. In Fields v. Murray. 49 F.3d 1024 (4th Cir.

1995), the court held that a review of a state court finding, which is
entitled to a presumption of correctness, compels the habeas court to
See id. at 1032-

accord a high measure of deference to the state court.

33 (citing Rushen v. Spain, 464 U.S. 114, 120 (1983); Sumner v. Ma ha. 455
U.S. 591, 598 (1982)). As stated in Marshall v. Lonhsrnpr. 459 U.S. 422

(1983), "[t]his deference requires that a federal habeas court more than
simply disagree with the state court before rejecting its factual

determinations.

Instead,

it

must

conclude

that

the

state

court's

findings lacked even 'fair [] support1 in the record."
JL Petitioner's Claims are Exhausted and
are Subject to Federal Review.

Id^. at 432.

The exhaustion

requirement dictates

that a petitioner must

first present his claims for relief to state courts before a petition for
habeas corpus may be granted by the federal courts.
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted
(A) the applicant has exhausted the remedies
or

unless it appears that--

available in the courts of the State;

corrective process;

(B)(i)

there is an absence of available State
or

process

(ii)

applicant.

ineffective to protect the rights of the

circumstances

exist

that

render

such

presented.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question

28 U.S.C.

§§ 2254(b) (l)-(c) (2000) .

A claim raised in a federal petition for writ of habeas corpus

must be
Picard v. U.S. 482,

the same claim as
Connor, 487 404 U.S.

that presented in
270, 275-76 (1971);

state proceedings.
Pitchess v. 325 Davis.

See
421

(1975);

Joseph v. Anaelone.

184 F.3d 320,

(4th Cir.

19")'" Beck v. AnaelrmP. 113 F. Supp.2d 941, 960-61 (E.D. Va. 2000); see also
U.S.

Anderson v.
364, 365

Harles.s,

459 U.S.

4,

6

(1982);
126

Duncan v.
573

H*nrv.

513

(1995);

Satcher v.

Pruet.t.

F.3d 561,

(4th Cir.

1997).
except

Respondent states that all of petitioner's claims are exhausted,
for Claim 1(c).

SLj--Petitioner did not receive ineffective assistance of counsel.

The standards upon which claims of ineffective assistance of counsel are to be judged are relatively clear. Strickland v. Washington, 466 U.S. 668
numerous occasions by this Court. In

They were established in

(1984), and have been applied on
Strickland, the Supreme Court

approved

as

the

proper

standard

for

attorney

performance

that

of

"reasonably effective assistance."

Id. at 687.

The Court stated:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the

on as having produced a just result.

adversarial process that the trial cannot be relied

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two
counsel's performance was deficient.
components. First, the defendant must

performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the convic
unreliable.

counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient

showing that counsel made errors so serious that

This requires

show

that

tion or death sentence resulted from a breakdown in the adversary process that renders the result

Id.

at

686-87.

There are,

therefore,

two elements

of

the

Strickland test,

each of which must be met before the conduct of counsel constitutionally defective.

can be

found

First, petitioner must show that he received

deficient legal representation, measuring the competency of his counsel
against what "an objectively reasonable attorney would have done under

the circumstances existing at the time of the representation."
v- Murray, 82 F.3d 593, 599 (4th Cir. 1996).

Savino

Petitioner must also show

actual prejudice; that is, he "must demonstrate that the error worked to

his

'actual and substantial disadvantage,'

not merely that the error

created a 'possibility of prejudice.'"

Satcher v. PrnPM-f 126 F.3d 561,

572 (4th Cir. 1997)(quoting Murray v. Carrier. 477 U.S. 478, 494 (1986)·
Povner v. Murray. 964 F.2d 1404, 1425 (4th Cir. 1992)).

The

burden

on

petitioner

is

to

show

"that

there

is

a

reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland. 4 66

U.S. at 694.

That translates into a reasonable probability that "absent

the errors, the factfinder would have had a reasonable doubt respecting
guilt." Id^. at 695.

In

analyzing

trial

counsel's

performance

under

the

"deficiency" prong of Strickland,

a reviewing court is required to be

highly deferential in scrutinizing counsel's tactics.
Anqelone, 92 F.3d 1336, 1349 (4th Cir. 1996).

See Bennett v.

Further, reviewing courts

are admonished to "not permit the benefit of hindsight to impact

review."
Strickland,

Bell

v.

Evatt,
at

72

F.3d

421,

429

(4th

Cir.

1995) (citing

466 U.S.

689).
1. Claim l(a)

Petitioner asserts that his trial counsel was ineffective for

failing to investigate the H&K firearm or disclose to petitioner that the
police suspected that an H&K firearm was used in the shooting. In an

affidavit made by trial counsel, counsel stated that he was aware that
a H&K 9mm was the suspected weapon in the shooting and that petitioner

had told him that he did not own an H&K 9mm.
at 224.)

(Swedish Aff.,

Petr's Ex.

Considering the fact that petitioner informed his counsel that

he had never owned a 9mm pistol and that he denied committing the crime, petitioner has failed to demonstrate that counsel acted deficiently.
Furthermore, petitioner cannot establish that he suffered any prejudice

by counsel's alleged failure.

The claim satisfies neither the deficiency
The state court's

of performance nor the prejudice prong of Strickland.

rejection of the claim was not contrary to or an unreasonable application
of federal law, nor was it based on an unreasonable determination of the
facts. The claim is without merit and should be DISMISSED.

2.

Claim
7

Kb)

Petitioner alleges that his trial counsel was ineffective for

failing

to

interview

the

state's

forensic

expert

or

conduct

an

independent investigation by consulting an independent forensic expert.
Counsel asserts that he Mid not feel it was necessary to interview the

forensic expert or consult an independent expert."
at 224.)

(Swedish Aff., Ex.

Petitioner makes no proffer as to what would have been gained

by further investigation or consulting with an independent expert.
noted earlier,

As

petitioner told counsel that he had never owned a 9mm

pistol and that he did not commit the shooting.

Counsel filed a motion

in limine regarding the forensic evidence, but the motion was denied. (9/12/2005 Tr. at 5-7; 45-49.) Additionally,
expert

counsel

aggressively
testimony in

questioned the

state's

forensic

and attacked his

closing argument.

(9/12/2005 Tr. at 215-26;

9/13/2005 Tr. at 118-21.)

Petitioner has failed to establish the deficiency of performance and the prejudice prong of Strickland. Furthermore, the state court's rejection

of

the claim was not

contrary to or an unreasonable application of

federal law, nor was it based on an unreasonable determination of the
facts. The claim is without merit and should be DISMISSED.
3. Claim l(d)

Petitioner alleges that his trial counsel was ineffective for

failing to interview or investigate Ms. Lee or disclose to petitioner
that Lee was going to be a witness. Counsel asserts that he was not made

aware that the Commonwealth was going to call Lee as a witness and that

he was not informed by petitioner that Lee would be an adverse witness. (Swedish Aff., Ex. 224 at 1.) Petitioner concedes that even though he he had been in contact with Lee after her interview with the police,
she might be called as a witness.

never informed trial counsel that the police had questioned Lee and that

At trial, Lee testified that she and

petitioner had purchased an H&K 9mm, that she left the gun in the house

she

shared with petitioner when their

relationship ended,

and

that

petitioner called her on at least two occasions to see if the police had questioned her about the gun. (9/12/2005 Tr. at 145-49.) Petitioner

confirmed on direct examination that he called Lee and told her that the

police would be

calling

her

in

the

course

of

their

investigation.

(9/13/2005 Tr. at 60-61.)
purchase of the gun.

Additionally, petitioner spoke with Lee after
Petitioner was in the best

the police had questioned her and had shown her the receipts for the
(9/13/2005 Tr. at 71.)

position to inform his counsel of Lee's potential testimony. that he chose not to inform counsel cannot be deemed

The fact

ineffective

assistance of counsel.

Furthermore, petitioner has failed to establish

any prejudice or point to any changes that Lee might have made in her testimony. Therefore, the claim satisfies neither the deficiency of
The state court's

performance nor the prejudice prong of Strickland.

rejection of the claim was not contrary to or an unreasonable application
of federal law, nor was it based on an unreasonable determination of the
facts. The claim is without merit and should be DISMISSED.
4. Claim l(e)

Petitioner alleges that his trial counsel was ineffective for

failing

to make

hearsay objections

regarding

the

forensic

expert's
However,

testimony and the hearsay evidence relied upon by the expert.

this assertion is directly contradicted by the record.

Petitioner's

attorney made a hearsay objection to the forensic expert's testimony and

his use of a ballistics database,
(9/12/2005 Tr. at 214-15.)
upheld by the Virginia Court

but the objection was overruled.
and the Supreme Court of

Furthermore, the trial court's ruling was
of Appeals

Virginia.

There was no deficient performance by counsel or prejudice to

petitioner.

The state court's rejection of this claim was not contrary

to or an unreasonable application of federal law, nor was it based on an

unreasonable determination of the facts.
should be DISMISSED.
6. Claim

The claim is without merit and

Iff)

Petitioner alleges that his trial counsel was ineffective for

failing to object to the Commonwealth Attorney's closing argument that petitioner was aware of the police suspecting the use of the H&K pistol
and their suspicion that petitioner had hidden or destroyed the pistol.
Lee testified that she had purchased an H&K 9mm pistol with petitioner and that when they separated, she left the pistol in the house that she
and petitioner shared. (9/12/2005 Tr. at 145-49.) The forensic expert

testified that

the

cartridge

recovered

from the

shooting

"exhibited

markings that were indicative of having been fired from" an H&K pistol.

{9/12/2005
restricted

Tr.
to

at
the

208.)
law in

The
the

prosecution's
case, the

closing

argument
from

was
the

evidence

adduced

witnesses,

and

the

exhibits
to

admitted
all

into

evidence,
that

therefore,
were

the

Commonwealth

was

free

draw

inferences

reasonably

deductible from the testimony and the exhibits.

It is not unreasonable

to infer that petitioner knew the police were looking for the weapon since Lee had testified
she

that
it

she
in

and petitioner
the

purchased
they

the

gun

together

and

that

left

dwelling when

separated.

Additionally, Lee testified that petitioner called her to see if she had

been contacted by the police in regard to the weapon. 148.) it is not unreasonable to infer from Lee's

(9/12/2005 Tr. at testimony that

petitioner had possession of the weapon,

that he knew the police were

investigating

the

weapon,

and

that

he

had

disposed

of

the

weapon.

Weighing the credibility of the witnesses is a task of the trial court
and the jury. Petitioner cannot blame his attorney for the jury finding

Lee's testimony more credible than his.

The claim satisfies neither the

deficiency

of

performance

nor

the

prejudice

prong

of

Strickland.

10

Furthermore,

the state court's rejection of the claim was not contrary

to or an unreasonable application of federal law, nor was it based on an
unreasonable determination of the facts.
should be DISMISSED.
7. Claim l(a)

The claim is without merit and

Petitioner alleges that his trial counsel was ineffective for

conceding to the Commonwealth Attorney's closing argument that petitioner

knew the police were looking for an H&K pistol.
petitioner's counsel stated:

In his closing argument,

Well, there is no evidence that he [petitioner] was ever told anything about an H&K or anything--or any specific weapon from the very beginning. He didn't even know anything about this until the State let us know about it, and that was at least in July. He was not told beforehand anything about an H&K, there's no evidence of that, and that's not in
dispute here.

(9/13/2005 Tr. at 120-21.)

Far from being the blatant contradiction and

concession that petitioner asserts, counsel's closing argument asserted

that petitioner

had no knowledge

of

the police

interest

in

the H&K

pistol.

Furthermore,

even

if

the

Court

agreed

that

counsel

was

ineffective in this instance,

petitioner has failed to establish any There was ample evidence to establish

prejudice as Strickland requires.

that petitioner was aware of the police interest in the H&K pistol, and
that is precisely the point trial counsel was attempting to undermine in

his closing statement.

Furthermore, the state court's rejection of the

claim was not contrary to or an unreasonable application of federal law,
nor was it based on an unreasonable determination of the facts.
claim is without merit and should be DISMISSED.

The

ll

E.

Procedural Default

Under Virginia law, a claim included in a petition for habeas

corpus will be barred if an objection was not raised at trial and the objection presented on direct appeal. State Penitentiary, 282 S.E.2d 10 In Coppola v. Warden of Virginia (Va. 1981), the Supreme Court of

Virginia held that to preserve an issue for appeal and for a habeas
corpus proceeding, the issue must be timely objected to at trial. Rule

5:25

of

the

Supreme

Court

of

Virginia

states

the

contemporaneous

objection rule:

trial court or the commission before which the case was initially tried unless the objection was stated with reasonable certainty at the time of the ruling
Va. S.Ct. R. 5:25.

Error will

not be sustained to any ruling of

the

The

Supreme

Court

has

stated

that:

"Under

Virginia

law,

failure to raise a claim on direct appeal ordinarily bars
proceeding."

from a criminal conviction in any subsequent
(1986).

consideration of
Smith v. Mnrrav.

that claim
527,

state

477 U.S.

533

The Fourth

Circuit has held that if a claim is procedurally barred in Virginia
courts because it was not brought on direct appeal, it will also be

barred in the federal system.

Bassette v. Thompson.

915 F.2d 932

(4th

Cir. 1990).»

In Whitley v. Bair, 802 F.2d 1487 (4th Cir. 1986), the court

held that the failure of an inmate to directly appeal his conviction to
the Supreme Court deprives

the Virginia Supreme Court of the opportunity to rule on the merits of his claims. We consider such

...

Virginia Code.

..

,,

'

The court in Bassette relied on section 8.01-654(B)(2) of the
Bassette, 915 F.2d at 936. Section 654 (B)(2) states- "No ,,

knowledae9aatntthe ?· ^ 5"^?.°' "* alle^ationpetition." of which Ann. § 8.01-654 the f^ts Va. Code pet^ioner haS (BM2HM h 1992 fllin9 any previous
12

failure to constitute a violation of the requirements of Rule 5:21, which applies to appeals of all Virginia cases, civil or criminal, and conclude that such violation constitutes a procedural default sufficient to preclude federal
court review of the merits ....

Id^

at

1502

(citing

Va.

S.Ct.

R.

5:21,

repealed

and

reinstate

Hn

substantially similar form as. Va. S.Ct. R. 5:17, 5:25).

In Slavton v.

Parriqan,

205 S.E.2d 680,

682

(Va.

1974),

the Virginia Supreme Court

stated a similar proposition:

"[a] petition for a writ of habeas corpus

may not be employed as a substitute for an appeal or a writ of error."

The Supreme Court of the United States recently addressed the same issue

in Coleman v. Thompson.

501 U.S. 722

(1991).

The Court held that the

doctrine of procedural default will bar a federal habeas petition when
a prisoner fails to meet a state procedural requirement.
Justice O'Connor said:

id.

at 750.

Speaking for the Court,

We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims

can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. ... We now recognize the

in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner

procedural rules, and the significant harm to the States that results from the failure of federal
courts to respect them.

important

interest

in

finality

served

by

state

Id.

at

750.

Moreover,

the

federal

court

is

required

to

dismiss

a

procedurally

defaulted

claim

absent

a

showing

of

justifiable

cause
(1977).

resulting in actual prejudice.

Wainwriqht v. Svkfts. 433 U.S. 72

Petitioner has not made a showing of justifiable cause for his failure to appeal the aforementioned issues to the Court of Appeals and the

13

Supreme Court of Virginia.
not be addressed.

Therefore, the issue of actual prejudice need

1.

Claim

He)

Petitioner alleges that his trial counsel was ineffective for

failing to review the evidence before

the commencement of

trial and

failing to request a continuance to conduct an investigation.

However,

the claim was not raised in petitioner's state habeas petition and has
never been presented to the Supreme Court of Virginia.
procedurally defaulted and should be DISMISSED.
2. Claim 2

The claim is

Petitioner

alleges

that

his

right

to

confrontation

was

violated when hearsay evidence relied upon by the forensic expert did not bear adequate indicia of reliability. the "hearsay evidence," but the Petitioner's counsel objected to issue of petitioner's right to

confrontation was not raised at trial, and the state court only addressed

the issue of hearsay evidence.
that the forensic expert

The Virginia Court of Appeals concluded
base his evidence on facts not in

did not

evidence because he had examined the bullet recovered from the victim in
the hospital and the spent cartridge recovered at the scene of the

shooting,

both of
Rec.

which were admitted into evidence.
No. 0125-06-4 (July 26, 2006) Slip

See
Op.

Ford v
at 2.

Commonwealth,

Additionally,

the Court of Appeals concluded that the FBI ballistics "analogous to a medical

database utilized by the forensic expert is

treatise consulted by an expert or to a real estate record consulted by a real estate appraiser." Id^. at 2. This Court notes that even if the

confrontation

issue

had

been

raised

at

trial,

the

forensic

expert

testified regarding evidence that had been admitted.

Further, the Court

agrees with the Virginia Court of Appeals that the ballistics database

utilized by all forensic experts is more akin to a treatise consulted by

experts

and

would

not

raise

a

confrontation

issue.

However,

since

petitioner did not raise the issue of confrontation in his objection at trial, the Claim is procedurally defaulted and should be DISMISSED.
3. Claim 4

Petitioner alleges that the Commonwealth Attorney's closing
arguments were improper and violated petitioner's right to due process

and a fair trial.

The claim could have been raised at trial and on

direct appeal but was not.

This Court notes that petitioner has raised

this claim under ineffective assistance of counsel, and as stated above,
counsel is free to draw all reasonable inferences that can be deduced

from a witnesses'

testimony and the exhibits admitted into evidence.
it was not

Based on the testimony and the evidence admitted at trial,

unreasonable for the prosecution to argue that petitioner possessed the

H&K 9mm gun, that he knew the police suspected that the H&K he possessed
was used in the shooting, and that he had disposed of the weapon.

Furthermore, it was not unreasonable for the jury to agree.

Regardless,

the

Claim was

not

raised at

trial

and

is,

therefore,

procedurally

defaulted and should be DISMISSED.
F. Claim 3 is Noncoonizable.

"[I]t
reexamine

is

not

the

province

of
on

a

federal

habeas

court

to
In

state-court

determinations

state-law

questions.

conducting habeas review, a federal court is limited to deciding whether

a conviction violated the Constitution, laws, or treaties of the United states." omitted). Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citations

In the arena of habeas corpus, federal courts are allowed to

"intervene in the state judicial process only to correct wrongs of a
constitutional dimension." Wainwriaht v. GooHp. 464 U.S. 78, 83 (1983)

(citation omitted).
constitutional

Therefore, if petitioner's claims do not allege a
his claims
15

violation,

will

fail

because

they

are

noncognizable in a federal habeas petition.
U.S. 156, 120 S.Ct. 2113, 2119

See Ramdass v. Anoelone, 530
Isaar.. 456 U.S. 107, 119

(2000); Enale v.

(1982); Weeks v. Anctelone.
Anqelone, 163 F.3d 835, 854

176 F.3d 249,

262

(4th Cir.

1999); Fisher v.
140 F.3d

(4th Cir. 1998); Huffinaton v. Nuth.

572,

584

(4th Cir.

1998);

Robinson v.

Cross.

121

F.

Supp.2d 882,
1250

884

(E.D. Va. 2000); Satcher v. Netherlands

944 F. Supp. 1222,

(E.D. Va.

1996); Griffin v. Virginia.

606 F.

Supp.

941,

946

(E.D. Va.

1985).

Petitioner alleges that the forensic expert's testimony should

not have been admitted because it was more prejudicial than probative.

Petitioner does not allege a constitutional violation, and therefore, the claim is noncognizable in a federal habeas petition. Also, the state

court's rejection of the claim was not contrary to or an unreasonable

application

of

federal

law,

nor

was

it

based

on

an

unreasonable

determination of the facts.
DISMISSED.

The claim is noncognizable and should be

III.

RECOMMENDATION

For

the

foregoing

reasons,

the

Court

recommends

that

petitioner's

petition
to

for

writ

of

habeas

corpus

be

DISMISSED

and

respondent's motion

dismiss be

GRANTED.

Petitioner has

failed to

demonstrate

"a

substantial

showing of

the denial

of

a

constitutional

right."

Therefore, it is recommended that the Court decline to issue any

certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.
(2003) .

See Miller-El v. Cockrell.

123 S.Ct. 1029, 1039

IV.

REVIEW PROCEDURE

16

By

copy of

this

Report

and Recommendation,

the parties

are

notified that pursuant to 28 U.S.C. § 636(b)(1)(C):

1. Any party may serve upon the other party and file with the

Clerk written objections to the foregoing findings and recommendations within ten days from the date of mailing of this report to the objecting
party, computed pursuant to Rule 6 (a) of the Federal Rules of Civil

Procedure, plus three days permitted by Rule 6(d) of said rules.
U.S.C. § 636 (b) (1) (C) (2000); Fed.R.Civ.P. 72 <b) .

See 28

A party may respond to

another party's objections within ten days after being served with a copy
thereof.

2.

A district

judge

shall make

a

de

novo

determination

of

those portions of this report or specified findings or recommendations
to which objection is made.

The parties are further notified that failure to file timely

objections

to

the

findings

and recommendations

set

forth above will

result in waiver of right to appeal from a judgment of this court based
on such findings and recommendations. See Thomas v. Arn. 474 U.S. 140

<1985>'

Carr v.

Hutto,

737 F.2d 433
(4th Cir.

(4th Cir.

1984);

United Statas v.

Schronce.

727 F.2d 91

1984).

James E. Norfolk,
August 4.

Bradberry

Virginia
2009

United States Magistrate Judqe

17

Clerk's Mailing Certificate

A copy of the foregoing Report was mailed this date to each of
the following:

Raymond Alexander Ford, #3557 96, Keen Mountain Correctional Ctr. State Route 629
P.O. Box 860

pro

s_e

Oakwood,

VA

24631

Craig W.

Stallard,

Esq.

Assistant Attorney General of Virginia
900 E. Main Street Richmond, VA 23219

Fernando Galindo,

Clerk

7Deputy Clerk

Zitjfi/

5

2009

18