Sheppard v. Director, Virginia DOC

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS and ordering that the petition be denied and dismissed and the respondent's motion to dismiss be granted. Further ordering that judgment be entered in favor of respondent and declining to issue any certificate of appealability and noting appeal procedures. Signed by District Judge Rebecca Beach Smith and filed on 6/30/10. Copy mailed as directed on 6/30/10.(jcow, )

-TEM Sheppard v. Johnson, etc.

Doc. 19

UNITED
FOR THE

STATES

DISTRICT
OF

COURT
VIRGIN]

FILED
JUN 30 20W
CLERK. U.S. DISTRICT COURT
NORrOLK. VA

EASTERN DISTRICT

Norfolk Division

KELBY SHEPPARD,

#338968, Petitioner,

V.

ACTION NO.
M. JOHNSON,

2:09cv570

GENE

Director,

Virginia Department
Respondent.

of

Corrections,

FINAL

ORDER

Petitioner
se, filed § this

Kelby

Sheppard,
for writ

a

Virginia
of habeas

inmate
corpus

proceeding pro
pursuant to 28

petition

U.S.C.

2254.

The petition challenges

Sheppard's August 27,

2004

convictions

by

the

Circuit

Court

for

the

City

of

Petersburg

of

first-degree murder,

use of a firearm in the commission of murder,

and

felony destruction of property. imprisonment The matter was and a $2500 fine.

Sheppard was

sentenced to 38

years

referred

to

a United

States

Magistrate

Judge

pursuant to the provisions of 28 U.S.C.
Rule 72 of the Rules of of the

§

636(b)(1)(B)
District

and

(C)
for

and
the The

United States for report

Court

Eastern

District

Virginia

and

recommendation.

Report

and Recommendation

filed May

26,

2010,

recommends

denying

the petition for writ of his right to file
made

habeas

corpus.

Each party was advised of to the
On

written
by the

objections

findings
June 11,

and
2010,

recommendations

Magistrate

Judge.

Dockets.Justia.com

the

Court

received

Petitioner's

Objections

to

the

Report

and

Recommendation.

First,
on Henry v.

Petitioner objects to the Magistrate Judge's reliance
Warden to hold Ground (C) as being procedurally

defaulted,

as

the

Fourth

Circuit

has

interpreted

Hawks

v.

Cox

relied
Turner

on
v.

by

Henry

to
35

be

more

of

a

collateral
Cir.

estoppel

rule.

Williams.

F.3d

872

(4th

1994) .

Regardless,

Sheppard

still

has

not

shown

the

requisite

cause

and

prejudice,

which this Court must find before considering the merits of a claim
not first presented v. Sykes, to to 433 the U.S. Supreme 72, Court of Virginia. Thus, the See Court

Wainwriaht

87-91

(1977).

finds no merit

the objection.

Second,

Petitioner objects to the Report and Recommendation's
(A) (2) as non-cognizable. Despite re-asserting

dismissal of Ground

his argument already presented to the Court in his habeas petition, jury instruction errors are a matter of state law,
a denial of due process under the

and thus are not
otherwise

Fourteenth Amendment;

all
107,

claims
121

would

be

federal
As

ones.
the

See

Engle

v.

Isacc,
no

456
to

U.S.
the

n.21

(1982).

such,

Court

finds

merit

objection.

Third,
analysis,

the
that

Court
the

finds

the
Court

Report
of

and

Recommendation's
ruling was
re

Supreme

Virginia's
is not

reasonable with respect

to Ground

(A)(1),

overcome by

asserting

the

argument

already

presented

to

the

Court

in

Petitioner's habeas petition.
of Appeals of Virginia noted,

It
that

is

still
no

the

case,

as

the Court

"[a]t

time

did appellant or

his

counsel

request
No.

a continuance

in the
at 1

trial date."
(Va. Aug. 10,

Sheppard v.
2005) . As

Commonwealth,
such, the

2058-04-2,

slip op.
to the

Court

finds

no merit

objection.

Fourth,
a reasonable

Petitioner objects to the dismissal of Ground (A) (3)
Supreme Court of Virginia finding since he did

as
not

have a

"full and fair opportunity to litigate 99 F.3d 841, 843 (7th Cir. 1996) .

the issue."

Neal v.

Gramley.

However,

the petitioner

is

only

entitled
the

to

habeas
"if
no

corpus
it is

relief
found
trier

on

reviewing
upon
fact

the

sufficiency of
evidence

evidence
trial

that
of

the

record
have

adduced

at

rational

could

found

proof

of

guilt

beyond

a

reasonable

doubt."

Jackson

v.

Virginia.

443 U.S.

307,

324

(1979).

Given that the evidence cited

in the Report and Recommendation is sufficient for a rational trier
of fact to find guilt beyond a reasonable doubt for the charged

offenses,

the

Court

finds no merit objects

to the objection. to the Court's application of

Fifth,

the

Petitioner

the Strickland standard to Ground

(B)(1).

Even if his counsel did

fail
has

to
not

investigate
provided

and present
evidence

a viable

defense,
from

Sheppard
witnesses

still
that

any

or

statements

could have

been

offered

in his

defense

to

show how his

counsel's

performance prejudiced him; and the Court finds

therefore, to the

he fails the prejudice prong

no merit

objection.

Sixth,

the

Petitioner

objects

to

the

Court's

application of

the Strickland standard to Ground
as Sheppard cannot "establish

(B) (2) .

The Court finds no merit
assistance of counsel

ineffective

under Strickland v. Washington on the general claim that additional
witnesses
Thompson,

should
915 F.2d

have
932,

been
941

called
(4th Cir.

in

mitigation."

Bassette

v.

1990) .

Seventh,

the

Petitioner

objects

to

the

Court's

finding

that

failing to object
ineffective

to an improper jury instruction did not
of counsel. Even if the jury

rise

to

assistance

instruction cannot meet show that

had been found to violate the prejudice prong of

due process, Strickland

Sheppard still he cannot

because

"there is a reasonable probability that, error],

but for counsel's

[alleged due

the result of the proceeding would have been different"

to the overwhelming evidence about Sheppard's
v. Washington, 466 U.S. 668, 694 (1984);

intent.

Strickland
871 F.2d

Waye v.

Townlev.

18,

21

(4th

Cir.

1990);

see

Francis

v.

Franklin,

471

U.S.

307

(1985).

The

Court,

having

reviewed
to

the
the

record
Report

and

examined the

objections and having

filed by made de

Petitioner novo hereby

and

Recommendation, to the portions and

findings adopt

with and

respect

objected

to,

does

approve

the

findings

recommendations
May 26, 2010. and

set
It

forth
is,

in

the

Report

and Recommendation
that the to

filed
be be

therefore, and the

ORDERED

petition dismiss

DENIED

DISMISSED,

Respondent's

motion

GRANTED.
of

It

is

further ORDERED that

judgment be entered in favor

Respondent.

Petitioner has failed to demonstrate "a substantial showing of
the denial of a constitutional right," therefore, the Court

declines to issue any certificate of appealability pursuant to Rule

22(b) V.

of

the

Federal Rules 123 S.Ct.
is

of Appellate 1039

Procedure.

See Miller-El

CQCkrell.

1029,

(2003).
that he may appeal from the

Petitioner

hereby

notified

judgment entered pursuant
notice of appeal with

to this
Clerk

Final Order by filing a written
of this court, United States

the

Courthouse,
days

600 Granby Street,
entry of

Norfolk,

Virginia 23510,

within 3 0

from the date of

such judgment.

The Clerk shall mail a copy of this Final Order to Petitioner
and counsel of record for Respondent.

Rebecca Beach Smith United States District Judge
UNITED STATES DISTRICT JUDGE

/s/

Norfolk,

Virginia

June

"JlO

, 2010