Williams v. Director for the Dept. of Corrections

Filing 15

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/19/14. Copy sent: Yes (tdai, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

MICHAEL DERRICK WILLIAMS,
Petitioner,
v.

Civil Action No.

DIRECTOR FOR THE DEPT.

3:13CV190

OF CORRECTIONS,

Respondent.
MEMORANDUM OPINION

Michael
pro se,

Derrick

Williams,

a Virginia

prisoner

proceeding

brings this petition for a writ of habeas corpus under

28 U.S.C.

§ 2254 P§ 2254 Petition").

Respondent has moved to

dismiss and provided appropriate Roseboro1 notice.
responded.

Williams has

The matter is ripe for disposition.

I.

PROCEDURAL HISTORY

A grand jury returned an indictment charging Williams with
two counts of forcible sodomy,

in violation of section 18.2-67.1

of the Virginia Code,2 and one count of rape in violation of

1 Roseboro v. Garrison, 528 F.2d 309 {4th Cir. 1975).
That statute provides, in relevant part:

A. An accused shall be guilty of forcible sodomy

if he or she engages in cunnilingus,
fellatio,
anilingus, or anal intercourse with a complaining
witness whether or not his or her spouse, or causes a
complaining witness, whether or not his or her spouse,
to engage in such acts with any other person,
and ♦ • • [t]he act is accomplished against the will

Section

18.2-61

Commonwealth v.
20,

2010);

Cir.

Ct.

of

Indictment

efforts

to amend

the

CR10000178-00

Williams,

No.

Indictment

Ct.

Apr.

Williams's

Indictments

20,

for

the

complaining

witness,

1,

2010.)

counsel,

by

to

sodomy

to the

in violation of

force,

threat

or

another person ....

B. Forcible sodomy is a felony punishable by
confinement in a state correctional facility for life
or for any term not less than five years ....
(West 2010).

That statute provides, in relevant part:
A.

If

any

person

has

sexual

intercourse

with

a

complaining witness whether or not his or her spouse,
or causes a complaining witness,

whether or not his or

her spouse, to engage in sexual intercourse with any
other person and such act is accomplished (i) against
the complaining witness's will,

by force,

threat or

intimidation of or against the complaining witness or
another person ... he or she shall be guilty of
rape.

B.

A

violation

of

this

section

shall

be

punishable, in the discretion of the court or jury, by
confinement in a state correctional facility for life
or for any term not less than five years ....

Va. Code Ann. § 18.2-61(A)(i) & (B) (West 2010).

the

Commonwealth

intimidation of or against the complaining witness or

Va. Code Ann. § 18.2-67.1(A)(2) & (B)

(Va.

Williams,
Due

the

forcible

1,

Cir. Ct. Apr.

at

lesser offenses of aggravated sexual battery,

of

at

1,

Cir.

of

Indictment
(Va.

2010);

(Va.

Code.3

No. CR10000177-00

at

20,

No. CR10000179-00

agreed

Virginia

Williams,

Apr.

successful

the

section 18.2-67.3 of the Virginia Code,4 agreed that a fifteenyear

active

term

for

imprisonment

"[was]

appropriate"

in

exchange of Williams's Alford plea to those counts, and agreed
to nolle prosse the rape charge.
CR10000178-00
2010);

& CR10000179-00

Plea Agreement at 3, Williams,
(Va.

Cir.

Ct.

entered

Dec.

7,

(Dec 7. 2010 Tr. 3-7, 20).

On December 7,

2010,

Williams entered an Alford5 plea of

guilty pursuant to a written plea agreement to two counts of
aggravated sexual battery.

CR10000178-00

Plea Agreement

& CR10000179-00

(Va.

Cir.

at

Ct.

1-7,

entered

Williams,

Dec.

7,

2010); Alford Plea to a Felony at 1-2, Williams, CR10000178-00 &
CR10000179-00 (Va. Cir. Ct. entered Dec. 7, 2010).

Court

sentenced

Williams

to

a

total

of

forty

The Circuit

years

of

incarceration with twenty-five years suspended based upon the

That statute provides, in relevant part:

A.
An accused shall be guilty of aggravated
sexual battery if he or she sexually abuses the
complaining
witness,
and . . . [t]he act
is

accomplished

against

witness by force,

the

will

of

the

threat or intimidation,

complaining
and . . .

[t]he accused causes serious bodily or mental injury
to the complaining witness ....

B.

Aggravated

sexual

battery

is

a

felony

punishable by confinement in a state correctional
facility for a term of not less than one nor more than
20 years ....

Va. Code Ann. § 18.2-67.3(A)(4)(b) & (B) (2010).
North Carolina v. Alford, 400 U.S. 25 (1970).
3

terms

of

the

Plea

Agreement.

Williams,

CR10000178-00

&

CR10000179-00, at 2 (Va. Cir. Ct. Dec. 7, 2010) .
Williams

appealed.

Appellate

counsel

pursuant to Anders v. California, 386 U.S.

filed

a

brief

738 (1967) raising a

claim of trial court error and Williams filed several pro se
petitions raising three additional claims.

at

3,

Williams

filed Apr.

11,

v.

Commonwealth,

2011);

No.

Petition for Appeal

2620-10-2

see Supplemental

(Va.

Ct.

App.

Petitions for Appeal,

Williams, No. 2620-10-2 (Va. Ct. App. filed Apr. 28, May 10, 18,
2011).

The Court of Appeals

petitions for appeal.

of Virginia

denied

Williams's

Williams v. Commonwealth, No. 2620-10-2,

at 1-3 (Va. Ct. App. Oct. 20, 2011.)

The

Supreme

Court

dismissed in part,

of

Virginia

refused

in

Williams's subsequent appeal.

part,

and

Williams v.

Commonwealth, No. 112042, at 1 (Va. June 4, 2012).

Williams filed a petition for a writ of habeas corpus in
the Supreme Court of Virginia raising similar claims as in the

instant § 2254 Petition.

See Petition for Writ of Habeas Corpus

at !/ Williams v. Dir. of the Dep't of Corr., No. 121042 (Va.
filed June 20, 2012.)
the

petition.

The Supreme Court of Virginia dismissed

Williams

v.

Dir.

No. 121042, at 17 (Va. Jan. 11, 2013.)

of

the

Dep't

of

Corr.,

II.

GROUNDS FOR RELIEF

Williams raises ninety-seven "briefs" or grounds for relief
in his Writ of Habeas Corpus Petition Ground and Briefs Document

("Br. Supp. § 2254 Pet.," ECF No. 1-1).

Due to the repetitive

and voluminous nature of Williams's "briefs," the Court combines

certain "briefs" together into "Claims."6
that

counsel

rendered

ineffective

Williams first argues

assistance

based

on

the

following Claims:
One:

Counsel

failed

to

move

for

a

continuance

at

the

plea
hearing
and
failed to
demand that the
Commonwealth provide complete medical records of

the victim which would have impeached
victim's testimony. (Briefs (1) and (87).)
Two

Counsel

failed

to

object

to

the

the

Commonwealth's

summary of the facts at the plea hearing as it
conflicted with the victim's prior statements.
(Briefs (2),
Three:

(18), and (63).)

Counsel failed to file a certificate of analysis
notifying the Circuit Court and the Commonwealth
that it intended to introduce evidence of the

victim's medical records.
Four

(Briefs (3) and (22).)

Counsel failed to file a certificate of analysis
notifying the trial court and the Commonwealth
that he intended to introduce Williams's and the
victim's cell phone records into evidence which

would

have

(Briefs
Five

impeached

the

victim's

testimony.

(4) and (5).)

Counsel failed to compel the hospital to produce
the victim's
records,
which
the Commonwealth
subpoenaed, but were not timely produced (Briefs

(6),

(7),

(10),

(13),

(64),

(65),

(77),

(78),

Given the multiplicity of arguments in Williams's
'briefs," some "briefs" are included in more than one Claim.

(79),

and

(89))

and

records himself.
Six:

failed

to

subpoena

the

(Brief (75).)

Counsel failed to interview and subpoena certain
witnesses who would have impeached the victim.

(Briefs

(8),

(21),

(24),

(25),

(28),

(29),

and

(30) .)
Seven:

Counsel
failed
to
inform
Williams
that
the
hospital produced the victim's medical records.
(Brief (9).)

Eight:

Counsel failed to object or move to dismiss the
indictments based upon the victim's inconsistent
statements (Briefs (11), (20), (72), and (82))
and
based
on
the
Commonwealth's
failure
to

produce DNA and medical records.
(40),
Nine:

Counsel
to

the

(Brief

Counsel
produce
report.

Eleven:

(42),

Counsel

(45),

(Briefs

(39),

(46), and (47).)

materials

in

his

case

or

visit

(12).)

failed to compel the Commonwealth to
the complete sexual assault examiner's
(Brief (14) .)

failed to challenge

the evidence.
Twelve:

(44),

failed to respond to Williams's request

inspect

him.
Ten:

(41),

the sufficiency

of

(Brief (15).)

Counsel failed to move to withdraw Williams's
Alford plea based on the Commonwealth's failure
to proffer a sufficient factual basis for his

plea.

(Briefs

(16),

(18),

(57),

(58),

(76),

(81) , (86), and (87) .)
Thirteen

Counsel

failed

to

argue

that

two

"continuances

should not be charged to the defense for speedy
trial purposes because it was the discovery issue
and not the defense issue in not getting the
alleged victim's medical records . . . ."

(Br.

Supp. § 2254 Pet. 7 (Brief (17).)
Fourteen

Counsel
history

failed
of the

(Brief (19).)

to
investigate
the
criminal
victim or her child's father.

Fifteen:

Counsel

failed

to

object

when

the

Commonwealth

informed the Court at the plea hearing that he
did not have the victim's entire medical report.
(Brief (23).)
Sixteen:

Counsel

deficiently

advised

Williams

to

plead

guilty in light of the favorable evidence in his
defense.
Seventeen:

(Brief

(26).)

Counsel

failed to

obtain and admit

into evidence

Williams's and the victim's cell phone records
which would have demonstrated that he was sending
text messages and was not at the victim's home at

the

time

she

claimed

she

was

raped.

(Briefs

(27), (66), (67), (68).)
Eighteen:

Counsel failed to provide Williams with the jury
instructions for the original charges against him
before advising him to plead guilty.
(Brief
(38) .)

Nineteen:

Counsel failed "to file a motion for perjury when
the

alleged

victim's

medical

records

material and exculpatory in nature . . . ."
Supp.
Twenty:

were

(Br.

§ 2254 Pet. 16 (Brief 43).)

Williams's

plea

was

unlawfully

induced

and

involuntary because counsel failed to disclose or
have the Commonwealth disclose the contents of
the victim's medical records to Williams or the

Circuit Court.
(70),

(85),

and

(Briefs

(48),

(57),

(60),

(69),

(91) .)

Twenty-One:

Counsel failed to file an appeal after
instructed him to do so.
(Brief (49).)

Twenty-Two:

Counsel failed to move to dismiss the charges due
to speedy trial violations.
(Briefs (50), (51),

Williams

(52), and (61).)
Twenty-Three

Counsel failed to object to the Commonwealth's
proffer at the plea hearing to the results of the
victim's
DNA
test
as
inadmissible
without
testimony from the person who conducted the test.
(Brief

(59).)

Twenty-Four:

Counsel

failed

to

file

a

motion

to

withdraw

Williams's Alford plea based on the exculpatory
nature of the victim's medical records.

(Briefs

(62) and (84) .)
Twenty-Five

Counsel failed to conduct a reasonable pre-trial
investigation of exculpatory evidence, failed to

file exhibits before trial, and failed to prepare
a defense forcing Williams to enter Alford plea.
(Briefs (71),
Twenty-Six:

(74),

(88), and (94).)

Counsel failed to file notice that he intended to

file

a

Motion

for

an

Evidentiary

Hearing.

(Briefs (73) and (74).)
Twenty-Seven

Twenty-Eight

Counsel failed to move for summary judgment based
on the Commonwealth's failure to produce the
victim's medical records.
(Brief (83).)

Counsel's cumulative deficient actions prejudiced
Williams.

Twenty-Nine:

Counsel

(Brief (95).)

failed to introduce evidence supporting

Williams's contention that sexual abuse could not

have

occurred

under

the

circumstances.

(Brief

(97).)

Williams also argues the following:
Thirty:

The
Commonwealth
failed
evidence in violation of

U.S.
(93)

Thirty-One:

83

Brady

31),

favorable

v.

Maryland,

(35),

(47),

373

(55),

The Circuit Court expressed doubt about the
verdict when he stated that "he 'thinks' this is
a reasonable deposition [sic] to accept Alford

The

(Br. Supp. § 2254 Pet. 13 (Brief (32).)

Circuit

trial rights.
Thirty-Three:

(Briefs

disclose

and (96)).

Plea."
Thirty-Two:

(1963)

to

Court

violated

Williams's

speedy

(Brief (33), (53), and (90).)

The Commonwealth failed to prove his guilt beyond
a reasonable doubt and the Circuit Court accepted
an Alford plea "without rooted facts."
(Br.
Supp. § 2254 Pet. 13 (Briefs (34) and (80).)

Thirty-Four:

The grand

because

jury indictments

no factual

the charges.

Thirty-Five:

were unconstitutional

evidence

existed to support

(Brief (36).)

"Conviction obtained by entering an Alford Plea
agreement
Pet.

14

whether

unintentionally."
(Brief

he

(37).)

waived

his

(Br.

Williams

right

to

Supp.

§

2254

misunderstood

appeal

the

sufficiency of the evidence.

Thirty-Six:

The
Commonwealth
engaged
misconduct
by
knowingly

in
prosecutorial
presenting
false

testimony in presenting the factual basis for the
plea.

Thirty-Seven:

(Briefs (54) and (92).)

The Circuit Court failed to hold the hospital in
contempt of court
for
failing to honor
the
subpoena of the victim's medical records.
(Brief
(89).)

Thirty-Eight:

The Commonwealth violated Williams's due process
rights when it failed to prove every element of
the crimes.

(Brief (56).)

III. APPLICABLE CONSTRAINTS UPON FEDERAL HABEAS REVIEW

In order to obtain federal habeas relief, at a minimum,

a

petitioner must demonstrate that he is "in custody in violation
of the Constitution or laws or treaties of the United States."

28

U.S.C.

§ 2254(a).

The Antiterrorism

and Effective

Death

Penalty Act ("AEDPA") of 1996 further circumscribed this Court's

authority to grant relief by way of a writ of habeas corpus.

Specifically, "[s]tate court factual determinations are presumed
to be correct and may be rebutted only by clear and convincing
evidence."

Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008)

(citing 28 U.S.C. § 2254(e)(1)).

Additionally, under 28 U.S.C.

§ 2254(d), a federal court may not grant a writ of habeas corpus
based on any claim that was adjudicated on the merits in state
court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2)

resulted

in

a

decision

that

was

based

on

an

unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

28 U.S.C.

§ 2254(d)(l)-(2).

that the question "is
state

court's

whether a federal court believes the

determination

determination
threshold."

not

The Supreme Court has emphasized

was

was

incorrect

unreasonable-a

Schriro

v.

Landrigan,

but

whether

substantially
550 U.S.

465,

that

higher

473

(2007)

(citing Williams v. Taylor, 529 U.S. 362, 410 (2000) ).7

IV.

GUILTY PLEA PROCEEDINGS AND FACTUAL BASIS FOR PLEA

Because

Williams's

claims

of

ineffective

assistance

of

counsel stem from deficiencies occurring before and during the
plea proceedings, it is necessary to recite the facts from those

proceedings.

As

reflected

below,

contrary

to

his

current

protestations, the evidence of Williams's guilt was compelling,
and Williams entered his plea knowingly and voluntarily.

•7

In

findings

light

of

the

of

the

Virginia

foregoing

courts

Court's opinion.

10

statutory

figure

structure,

prominently

in

the

this

A.

Alford Plea

On the day of trial, Williams pled not guilty to the two
forcible sodomy counts and guilty to the two lesser counts of

aggravated sexual battery.8

(Dec. 7, 2010 Tr. 4-7,

15.)

The

Court explained that Williams faced up to life in prison on the
rape and sodomy counts, and up to twenty years in prison on the
(Dec.

aggravated sexual battery counts.

7,

2010 Tr.

7-8.)

At

the beginning of the plea hearing, the Circuit Court emphasized
that,

before

Williams's

accepting

Alford

the

plea

plea,

was

it

wanted

voluntary

to

and

ensure

that

that

Williams

understood the charges against him and the rights he was giving
up by

entering the

Court

explained

plea.

that:

(Dec.

"[W]hen

7,

we

2010

finish

Tr.

9.)

this

The Circuit

morning,

accept this plea, this case is going to be over."

Tr.

9.)

conversations

Thereafter,
Williams

challenging his plea,

hypothesizing
might

have

with

as
his

if

I

(Dec. 7, 2010

to

any

future

attorney

about

the Court stated:

There is no, Mr. Thomas, [9] I want to do this all over
again; Mr. Thomas, I think I did the wrong thing on
December

7th;

let's

go back and undo

it all.

We're

not going to do that. That is not going to happen. I
will not listen to you absent something like a
bombshell or an earthquake any more than I would
The Circuit Court

explained that it refused to allow the

Commonwealth to amend the Indictments until after it accepted
Williams's guilty pleas.

(Dec. 7, 2010 Tr. 4.)

H. Evans Thomas represented Williams in the Circuit Court
proceedings.
(See Dec. 7, 2010 Tr. 2.)
11

listen to [the Commonwealth] a week or two from now
saying, the State feels like we made a mistake ....
We're not going to do that.

(Dec. 7, 2010 Tr. 9-10.)

Williams agreed that he understood the

charges against him and the elements that the Commonwealth would

need to prove to find him guilty of aggravated sexual battery.
(Dec. 7,

2010 Tr.

11.)

Williams agreed that he had discussed

the case with his counsel around twelve times for a total period
of about

ten hours.

(Dec.

7.

2010

Tr.

12-13.)

Williams

affirmed that counsel had answered all of his questions and that

he had enough time to decide whether or not to plead guilty or
not guilty.

(Dec. 7, 2010 Tr. 13-14.)

Williams agreed that no

one had forced him to plead guilty or threatened him and that he

understood his constitutional right to a trial by jury.
7, 2010 Tr.

(Dec.

15.)

The Circuit Court explained that, if Williams wanted a jury

trial, the jury was present, and, "if there is any uncertainty
or I don't understand what you're telling me or I think that

you're trying to stand on one foot and then the other foot, then

we'll call the jury in to proceed on a not guilty plea.
understand that?"

the affirmative.

Do you

(Dec. 7, 2010 Tr. 16.)

Williams answered in

(Dec. 7, 2010 Tr. 16.)

Williams then agreed

that he had fully discussed his right to trial by jury with

counsel, had heard the evidence against him at the preliminary
hearing, and that he had "decided that it [was] in [his] best
12

interests

to

plead

agreement[.]"

guilty

.

.

.

pursuant

to

the

plea

(Dec. 7, 2010 Tr. 16.)

Williams stated that he signed the Alford Plea to a Felony
document after reading and understanding it, and he agreed that
it

contained

accurate

information.

(Dec.

7,

2010

Tr.

17.)

Williams also acknowledged that he stipulated to the following
facts:

1.

On or about September 8,

2009,

the Defendant

did unlawfully and feloniously sexually abuse C.W. by
intentionally touching her genitalia,

against his/her

will and by the use of force, threat, or intimidation
and causing her serious mental injury in violation of

Section 18.2-67.3 of the Code of Virginia
amended;

(1950)

as

and

2.

On or about September 8,

2009, the Defendant

did
unlawfully
and
feloniously
abuse
C.W.
by
intentionally touching her buttocks, against his/her
will and by the use of force, threat, or intimidation
and causing her serious mental injury in violation of

Section 18.2-67.3 of the Code of Virginia

(1950)

as

amended.

Stipulation

at

1,

Williams

v.

Commonwealth,

CR10000178-00 &

CR10000179-00 (Va. Cir. Ct. entered Dec. 7, 2010);
Tr.

(Dec. 7, 2010

17-18).

Williams acknowledged that he read,
the written Plea Agreement.

agreed that

he

signed,

and understood

(Dec. 7, 2010 Tr. 19-20.)

understood that

a count

of

aggravated sexual

battery carried a sentence of up to twenty years
(Dec. 7, 2010 Tr. 20.)

"agree[d]

that

Williams

in prison.

In the Plea Agreement, the Commonwealth

specific sentences" of twenty years with five

13

years

suspended on

the

first

count,

and,

twenty years

twenty years suspended on the second count "[were]
to

the

disposition

of

these cases."

Plea

with

appropriate

Agreement

at

3,

Williams v. Commonwealth, CR10000178-00, CR10000179-00 (Va. Cir.
Ct. entered Dec. 7, 2010).
Plea Agreement,

Williams agreed that pursuant to the

he understood that he would serve an active term

of fifteen years if the Circuit Court accepted the Alford plea.
(Dec. 7, 2010 Tr. 20-21.)

Williams also affirmed that he understood that, by pleading
guilty he gave up any defenses to the charges,
that

the

evidence was

sufficient

to

counts of aggravated sexual battery.

Williams agreed that he "[did]

prove

his

(Dec. 7,

and he agreed
guilt

of

two

2010 Tr. 22-23.)

not wish to dispute before this

jury the allegations of the State that you raped this woman and
that you committed forcible sodomy twice on her?

to dispute
correct?"

that
(Dec.

by pleading
7, 2010 Tr.

guilty
23.)

to

two

You don't wish

lesser

offenses,

Williams also affirmed that

he understood that by pleading guilty he waived his right to
appeal.

(Dec. 7, 2010 Tr. 23-24.)

The Circuit Court explained:

"So if I accept this plea agreement today and you walk out of
here with 40 years with 25 suspended, the case is all over and

you can't [say]
December 7th?

... I want to appeal what the Judge did on
There is no appeal.

(Dec. 7, 2010 Tr. 23-24.)

Do you understand that?"

Williams agreed he understood.
14

(Dec.

7, 2010 Tr. 24.)

Williams also agreed that he was satisfied by

the services rendered by his counsel.
As

a

summary

of

the

(Dec. 7, 2010 Tr. 25-26.)

evidence

to

support

the

amended

charges, the Commonwealth offered the following facts that would
support

the

lesser-included

offenses

of

aggravated

sexual

battery, with the Court's additional questioning:
These offenses occurred on or about the 8th day of
September,

2009.

present

her

at

On

that

residence

date
202-K

at

[the
Park

victim]
View

was

Gardens

located here in Farmville in Prince Edward County.
The defendant Michael Derrick Williams came by
her house that day visiting her.
While he was there
he spoke to her for some period of time and then
proceeded to talk to her in a way that she was
uncomfortable.
She asked him to leave, but he didn't.
He

then

began

to

hold

her

down

and

touched

her

genitalia.
It was against her will.
He also then
touched her buttocks by holding her down.
It was
against her will.
As
a result of that she has
suffered
severe
injury,
mental
injury,
emotional

injury from those incidents.
Judge, he did this with
the intent to sexually arouse or gratify ....
THE COURT:

What

about

the

sexual

intercourse?

I didn't hear you say anything about having sex with
her?

MR. BUTLER:
Yes, sir.
I was summarizing as to
the aggravated sexual battery charges.
THE COURT:
But that was part of the case,
though.
MR.

BUTLER:

Yes,

sir.

THE COURT:
So you
had sex, also, with her?
MR.

BUTLER:

THE COURT:

did

have

evidence

that

he

That's correct sir.

How

well

were they

known

to each

other?

MR. BUTLER:

You Honor.

They

know each

other

quite

well,

In fact, there is a familial relationship.

They are cousins, probably second cousins ....

15

THE COURT:

They never

dated or anything? No

previous relationship?
MR. BUTLER:

No,

sir.

THE COURT:

Go back to the way it started out.

Was this at her house?

MR. BUTLER:
THE COURT:

Yes, sir, it was.
And he came to her house

for what

purpose?
MR.

BUTLER:

Just to talk.

MR. BUTLER:
there.

She is the only adult that resides

Her son lives there with her.

THE COURT:

Was this during the day?

MR. BUTLER:
THE COURT:

Yes, sir, it was.
Daylight hours?

THE COURT:

Yes,

sir,

approximately

2:30

to

3:00 o'clock.

THE COURT:
Would the State have any evidence
other than the victim's statement? You got scientific
evidence?

MR.

BUTLER:

THE COURT:

We did,

sir.

To what extent?

MR. BUTLER:
There were [sic] sexual assault
nurse exam was performed.
The sexual assault nurse
examiner found that there was an indication of blunt

trauma

but

could

not

identify whether

or

not

it was

consensual or nonconsensual, could not testify as to
exactly what caused the trauma.
During the sexual
assault exam the nurse examiner collected vaginal and
anal

rectal
swabs
from
the
victim.
DNA
was
recoverable from the vaginal swabs, indicated that the
defendant was the perpetrator.
THE COURT:
So you've got DNA in the victim's
body of the defendant?
MR. BUTLER:
Correct,

THE COURT:

Anything

sir.
else

that

would

lead

to

the plea agreement that you would want to apprise me
of?

MR. BUTLER:
Your
honor,
there
was
some
problems with the maintenance of the records of the
sexual assault nurse exam.
We do not have the entire
report.
The sexual assault nurse examiner did not

have an independent recollection of the exam, and we
were only able to find the majority of the report.
After

reviewing

the

report
16

she

does

have

a

better

recollection

of it;

however,

that was

an issue with

regard to this case.

THE COURT:

So your primary evidence would be

the victim's statement and the DNA?
THE COURT:
Yes, sir.

(Dec. 7, 2010 Tr. 26-32.)

In response to the evidence, defense

counsel stated:

Your
summation

honor,
listening
to
the
Commonwealth's
and
having
been
over
this
I
think

excessively
agree

that

thoroughly
that

myself

would

be

the

with

the

evidence

client,

and

we

there

is

[sic] also problems with the Commonwealth's case.
As your Honor heard, one of the problems with the
defendant's case is, number one, there is DNA which

would

be

offered

as

evidence,

correlation there is no

which

reason to not

given

believe

the

it was

my client's DNA that was found inside the lips of her
vagina, Judge.
Also, one

of

the

problems

that

the

defendant

would have in this case is inconsistent statements by
my client to the officer,
including his
first
statement
and second statement
to the officer,

including

written

letters

he

sent

to

Investigator

Hogan after he had been incarcerated.

THE COURT:
MR.

What is the gist of those?

THOMAS:

...

it

was

I did not have sex

with that woman but we did do something.
doesn't

include

intercourse,

sex

as

in

my

penis

putting

terms

of

Maybe it

actual

inside

her,

sexual

but

we

fooled around and we messed around and I did ejaculate
on her.

THE COURT:

All

consensual.

No,

the

That

was

the

first statement.

MR. THOMAS:

first

statement

was

we

didn't have sex at all.

THE COURT:

And the second statement?

MR. THOMAS:

It

was

not

sex,

I did

not

have

intercourse with her, I did not anally penetrate her
or have oral sex with her,

it was consensual.
And, as you heard,

prior

felonies

as

but I did mess around and

So there is a problem with that.
the problem is my client has six

well

which

credibility.

17

is

a

question

of

Additionally,

convicted of

Your

one

count

Honor,

of

were

the

he

to

original

be

even

charges

to

which the Court alluded to that each one carries the

possibility of life, the fact that he has only
recently gotten out of the penitentiary for rape and
sodomy, Judge, would likely lead to a long sentence.
And we've been over those guidelines, Judge,
months and months ago and went over them again more
recently.
We
have
been
over
the
guidelines
exceptionally thoroughly, and those other guidelines
at age 40 are no different than what the jury could
possibly have given him on any of those charges which
is life.

(Dec. 7, 2010 Tr. 33-35.)

The Circuit Court then noted "I think

this disposition is reasonable."

Circuit

Court

agreement

of

imprisonment.

imposed
a

the

total

(Dec.

7,

(Dec.

sentence

active
2010 Tr.

term

7. 2010 Tr.

agreed
of

to

in

fifteen

35-36.)

35.)

The

the

plea

years

of

The Circuit Court

accepted Williams's plea, and found him guilty of two counts of
aggravated sexual battery.
B.

(Dec. 7, 2010 Tr. 36.)

Commonwealth's Evidence For Trial

If the case had proceeded to a jury trial, the Commonwealth

possessed compelling evidence of Williams's guilt of rape and
forcible sodomy.

following,

as

First, the victim would have testified to the

reflected

in

her

statement

to

the

police

approximately one and a half hours after the assault:

Mr. Williams put his right arm around her head and
placed his hand over her mouth.
He then came around

the corner of the couch and pushed his forearm against
her

chest

while

still

holding

his

hand

over

her

mouth. ... He then used his other hand to pull her
pants and panties off and lifted her leg into the air,
pushing against it. [The victim] stated she told him,
18

"No. Stop. You are my cousin.

Why are you doing this?

My little boy is sitting right here . . . [. ]"

His

only reply was to laugh and say "hush" and "sshh."
[The victim] then stated that while Mr. Williams

was standing flat footed on the floor, he bent over,
still holding her right leg in the air and holding his
hand over her mouth and pushing his forearm against
her chest, and performed oral sex on [her] .
[The
victim]

stated she tried to move away and to kick his

leg, but was not successful. Mr. Williams then pulled
his pants and boxers down to his knees and penetrated
her vagina with his penis.
[The victim] stated she
attempted to push him off of her but he was so tall,
she couldn't get him off.
(Mr. Williams is 6' 6"
tall.)
[The victim] stated he then "rolls me over to

my side trying to get it in my butt."

He eventually

pushed her onto her stomach and finally "worked" his
penis into her anus.
[The victim] stated that he did
not use a condom and he ejaculated on her anus.
He

wiped her off with what she described to be a burgundy
colored cloth.

She did not

know where the cloth came

from and assumed he brought
stated that

Before

he

leaving,

took the

Mr.

it with

cloth with

Williams

him.

him when

told

her

not

She also
he

to

left.

tell

anybody and also said "he always wanted to do that."
(Br. Supp. § 2254 Pet. Ex. 15, at 1-2.)

After Williams left her home, the victim called her child's

father, L.E., who she had been speaking with on the phone when
Williams first arrived at her house.

(Id.

at 2.)

The victim

explained that she was ashamed to tell L.E. what had happened.
(Id.)

However,

because

the

victim

was

crying,

L.E.

knew

something was wrong, so she finally told him she had been raped.
(IcL)

The victim then went to the hospital where the sexual

assault nurse examiner performed an examination and PERK test.
(Id.)

19

Police also interviewed L.E., who stated that he had been

speaking with the victim on the phone when Williams arrived at
her house and also spoke with Williams.

(Id.)

he "heard [the victim] tell Michael Williams,
cousins'

and then the phone hung up.

repeatedly,

(id.)

police

answered."

tried to call back

finally answered, she told L.E. that Williams raped her.
the

one

We're

victim

told

no

'No. Stop.

the

L.E.

but

L.E.

He stated that

officer

(Id.)

that

Williams "forced his way on her.

the

When

victim

told

him

that

He put his hand on her mouth,

took the house phone off the hook, and she couldn't get to her

cell phone because he still had it.
wanted to do this."

The

He told her he always

(Id.)

hospital

produced

and

filed

the

victim's

records with the Circuit Court on September 3,
Medical

Records,

Williams

v.

Commonwealth,

CR10000179-00 (Va. Cir. Ct. Sept. 3, 2010).
corroborated

the

sodomized

her.

surface

victim's

The

injuries

statement

Forensic
but

that

Nurse

noted

"TEARFUL/SOBBING" and was "ANGRY."

2010.

Sealed

CR10000178-00

&

The medical report
Williams

Examiner

that

medical

the

raped

and

noted no body
patient

was

(Br. Supp. § 2254 Pet. Ex.

2, at 1) ; see Sealed Medical Records, Williams, CR10000178-00 &
CR10000179-00
PHYSICIAN

(Va.

Cir.

Ct.

Sept.

RECORD Alleged Sexual

victim stated that

the

2010).

Assault"

mechanisms
20

3,

of

The

"EMERGENCY

form noted that

trauma

were

the

"vaginal

penetration" and "rectal penetration" and she reported rectal

pain.

(Br.

Supp.

§ 2254

Pet.

Ex.

3,

at 2.)

The hospital

collected vaginal and anal rectal samples from the victim.

The

DNA analysis of those samples, filed with the Circuit Court on

April 30,

2010,

confirmed that the DNA belonged to Williams.

(See id. Ex 1, at 1.)

V.

INEFFECTIVE ASSISTANCE OF COUNSEL

A.

Applicable Law

To

demonstrate

convicted

ineffective

defendant

representation

was

must

assistance

show,

deficient

and,

first,
second,

performance prejudiced the defense.

466 U.S. 668, 687 (1984).
prong of Strickland,

the

"'strong presumption'

of

counsel,

that
that

counsel's

the

Strickland v.

a

deficient

Washington,

To satisfy the deficient performance
convicted defendant must

overcome the

that counsel's strategy and tactics fall

'within the wide range of reasonable professional assistance.'"

Burch v. Corcoran, 273 F.3d 577, 588

Strickland, 466 U.S. at 689).
a

convicted

defendant

to

(4th Cir.

2001)

(quoting

The prejudice component requires

"show

that

there

is

a

reasonable

probability that, but for counsel's unprofessional errors, the
result

of

the

proceeding

would

have

been

different.

A

reasonable probability is a probability sufficient to undermine
confidence in the outcome."

Strickland,

21

466 U.S.

at 694.

In

analyzing ineffective assistance of counsel claims,

it is not

necessary to determine whether counsel performed deficiently if
the claim is readily dismissed for lack of prejudice.

Id.

at

697.10

In the context of a guilty plea, the Supreme Court modified

the second prong of Strickland to require a showing that "there

is

a reasonable

[petitioner]

probability

would

not

that,

have

insisted on going to trial."
(1985) .

but

pleaded

for counsel's
guilty

and

Hill v. Lockhart,

errors,

would

474 U.S.

have

52,

59

Any assertion by Williams that he would not have pled

guilty if he had received better assistance from counsel is not

dispositive of the issue.
F.

Supp.

1208,

1214

See United States v.

(E.D.

Va.

objective inquiry and [highly]

1995).

Rather,

Mora-Gomez,
"[t]his

506

F.3d

358,

omitted)

(citing Hill,

369

an

dependent on the likely outcome

of a trial had the defendant not pleaded guilty."
Branker,

is

875

(4th

Cir.

2007)

474 U.S. at 59-60).

(internal

Meyer v.
citation

The Court looks to

all the facts and circumstances surrounding a petitioner's plea,

10 In Strickland, the Supreme Court made clear that no need
exists for the Court to address counsel's purported deficiency,
and that directive has particular relevance here.
466 U.S. at
694.
Williams
lists
scores
of
critiques
of
counsel's

performance in every facet of his representation.
only prejudice, the Court by no means
performed deficiently.
To the contrary,

that

counsel

negotiated

an extraordinary

sentence in light of the pending charges
support of those charges.
22

By addressing

finds that counsel
the record reflects

plea

agreement

and

and the evidence in

including

the

likelihood

of

conviction

and

any

potential

sentencing benefit to pleading guilty.

See id.

conducting

the

representations

defendant,

his

proceedings,

foregoing

lawyer,

"as

accepting the

inquiry,

and

well

plea,

as

the

any

prosecutor

findings

constitute

63,

73-74

evidence

to

(1977).

the

Thus,

contrary,

representations he makes

during

made

a formidable

subsequent collateral proceedings."

U.S.

the

at 369-70.

by

of the

the

the

barrier

In

plea

judge
in any

Blackledge v. Allison,

431

"[a]bsent clear and convincing
a

defendant

is

bound

by

the

under oath during a plea colloquy."

Fields v. Att'y Gen, of Md., 956 F.2d 1290, 1299 (4th Cir. 1992)
(citations omitted).
B.

Pre-Trial Claims11

The majority of Williams's claims of ineffective assistance

of counsel derive from Williams's continued protestations that

insufficient

evidence

existed

to

compelling evidence of his guilt.

convict
Williams,

him,

despite

however,

the

fails to

demonstrate any prejudice from counsel's purported errors.

In

a

series

of

conclusory,

repetitive,

and

factually

contradictory claims, Williams argues that the victim provided

inconsistent information about being raped and sodomized, and
ii

•

This section contains the majority of Williams's claims.

Specifically, in this section, the Court addresses Claims One,
Three through Eleven, Thirteen, Fourteen, Sixteen through
Twenty,

Twenty-Two,

Twenty-Five

Twenty-Nine.
23

through

Twenty-Seven,

and

that certain records and witness testimony would highlight those
inconsistencies.

For

example,

Williams

takes

issue with

the

timeliness of the hospital's production of the victim's medical
records and faults counsel for failing to provide Williams with

copies of the victim's records to "inspect."

Six,

and Seven.)

(See Claims Five,

Williams believes that the hospital records,

if introduced into evidence,

would have impeached the victim's

statement to police and testimony during the preliminary hearing
because they stated "Alleged Sexual Assault."
Supp. § 2254 Pet.

(See,

e.g.,

Br.

6; Claims One, Five, Eight, Ten, Nineteen, and

Twenty-Nine. )

In a similar vein,

in Claims

Four and Seventeen,

Williams

argues that counsel failed to obtain and introduce into evidence

the victim's

and Williams's cellular

phone records which would

have purportedly demonstrated that "he was texting on his cell

phone at the times the alleged victim stated he had allegedly
raped

her"

alleged

(Br.

victim's

Supp.

§

2254

residence

Pet.

. . . and

texting the alleged victim . . . ."
In

Claim

Six,

Williams

11)

and

that

"was

he

not

was

at

the

actually

(Id. at 25-26.)12

contends

that

counsel

failed

to

interview and subpoena certain defense witnesses, including his

12 Williams eventually admitted to the police that he had
engaged in sexual activity with the victim,

so it is difficult

to fathom how this later contradictory assertion alongside any
phone records could prove exculpatory.
24

mother, Hazel Williams, the victim's boyfriend, D.G.

(id. at 4),

the

nurse,

triage

nurse,

the

sexual

emergency room physician

took the victim's

(id.

assault
at 10),

examination

the

and the investigator who

statement at the hospital

(id.

at 10,

12).

Williams fails to proffer what favorable testimony his mother or
the

victim's

boyfriend

States, 373 U.S.

1,

would

provide.

19 (1963)

See

Sanders

v.

United

(finding denial of habeas action

appropriate where it "stated only bald legal conclusions with no

supporting factual

allegations");

366 F.3d 312, 316 (4th Cir. 2004)

see United States

v.

Terry,

(requiring "concrete evidence"

of exculpatory testimony).

With respect to the medical witnesses, Williams argues that
because

the

victim's

assault"

and

witnesses

would

the attack.

"suspects
have

records

medical
no

abuse

undermined

the

state

or

"alleged

neglect,"

victim's

the

sexual
medical

statements

about

(See, e.g., Br. Supp. § 2254 Pet. 11.)

In Claim Fourteen, Williams also faults counsel for failing
to

investigate

the

criminal

histories

father of her child "to check both

of

the

victim

also

blames

counsel

the

their credibility and to

inform his client of their background credibility."

Williams

and

for

(Id. at 8.)

purported

procedural

errors such as failing to provide him with the jury instructions

for

the

rape

and

forcible

sodomy

charges

before

advising

Williams's to plead guilty (Claim Eighteen), failing to move for
25

an evidentiary hearing (Claim Twenty-Six),
for

summary

"perjury"

judgment

and failing to move

(Claim Twenty-Seven)

(Claim Nineteen)

and

a

motion

based on the Commonwealth's

for

failure

to produce the medical records during the guilty plea hearing.
No need exists for the Court to address Williams's abundant

individual critiques of counsel which undoubtedly lack merit, as

Williams

demonstrates

errors.

Williams

reasonable

no

prejudice

fails

probability

to

that,

from

counsel's

demonstrate

but

for

that

counsel's

purported

"there

errors,

is

a

[he]

would not have pleaded guilty and would have insisted on going
to trial."

Hill,

Compelling

474 U.S.

at 59.

evidence

existed

forcibly sodomized the victim.

that

First,

Williams

raped

and

the victim provided a

detailed statement to police after her arrival at the hospital,
describing how Williams forced her to engage in oral, vaginal,
and anal sex against her will.
suggestion in his

corroborated

by

brief,

her

Second,

the victim's

medical

demeanor after the rape.

1.)

account of the

records,

her

actions,

attack is

and

her

The victim stated that Williams raped

her at approximately 3:00 p.m.
at

contrary to Williams's

After calling L.E.

(Br. Supp. § 2254 Pet. Ex. 15,

crying and admitting to him that

Williams raped her, she went to the hospital where the triage
and

sexual

assault

nurses and a physician examined

performed a PERK rape test.

(Ia\ at 2.)
26

her and

Police received a call

from the hospital at approximately 4:40 p.m. reporting a rape.
(Id. at 1.)

Moreover,

the PERK test confirmed the presence of

Williams's DNA in the victim's vagina.

Williams
counsel

also

offers

omitted.

The

factual consistency.
obtain

and

utilize

no plausible

inchoate

defenses

defense

strategy that

Williams

offers

lack

Williams attacks counsel for failing to
the

victim's

medical

records

and

cellular

phone records to challenge the contents of victim's statement to

police.

Williams, however, provides no persuasive argument that

evidence existed to support his continued protestations of his
innocence.

First,

the

victim's

medical

inconsistent with the victim's statement.

records

are

not

The records establish

that she expeditiously reported to the hospital after the rape,
appeared

visibly

upset,

and

reported

vaginal

penetration and rectal pain.

Additionally,

square his

phone

contention that the

and

Williams

records

rectal

fails to

would demonstrate

that he was not present at the victim's home at the time of the

rape

with the DNA test confirming

that

Williams's

sperm was

found on the victim on the day of the attack.

Finally,

argument,

although

Williams

never

explicitly

makes

the

the Court infers that Williams intends to argue that

the

medical

records

the

victim was

would

show that

consensual.

his

sexual

Williams points

encounter with

to

no

concrete

evidence to support this insinuation and the record provides no
27

basis for the argument that Williams and the victim engaged in
consensual sex.

Contrary to Williams's suggestion,

the records

fail to support his contention that he and the victim engaged in
consensual sex.13

Next,

neither Williams,

nor the record,

suggest a motive

for the victim to lie about the rape and two counts of forcible

sodomy.14

Williams offers no concrete evidence that he could

have introduced to challenge the victim's account of the attack.
See Sanders, 373 U.S. at 19 (1963); see Terry, 366 F.3d at 316.
Williams

defendant
insisted

also

in his
on

position

going

Commonwealth

cannot

to

charged

demonstrate

would

trial.

Hill,

Williams

with

a

reasonable

pleaded not

have

that

guilty and

474
rape

U.S.
and

at
two

59.

The

counts

of

forcible sodomy and Williams faced a sentence of life in prison
on

each

of

those

counts

if

he

went

to

trial.

Williams

had

13 The medical records do not definitively show a finding of
forcible intercourse, but they reflect a report of force by the
victim against her person, and nothing inconsistent with that
report exists

in the

contemporaneous

record.

evidence

Moreover,

demonstrates

the circumstantial and

that

Evans

forcibly

sodomized and raped the victim.

Williams speculates that the victim's child's father,
L.E., who the victim no longer dated at the time of the attack,
had a history of being jealous of "other guys being with the
alleged

victim."

(Br.

Supp.

§ 2254

Pet.

8.)

Williams

claims

that L.E. has made false 911 calls regarding the victim and her
home.
(Id.)
Even presuming these allegations to be true,
Williams,

however,

fails

to

explain

and the

Court

fails

to

discern how L.E.'s jealousy would cause the victim to report to
the hospital and provide false information to police.
28

previously been convicted of six prior felonies,

including a

conviction

Commonwealth

for

rape

and

forcible

sodomy.

The

possessed the victim's detailed statement that Williams raped

and sodomized her and DNA evidence confirming her statement.

By

entering

of

into

aggravated

the

sexual

guilty

plea

assault,

the

to

the

reduced

Commonwealth

charges

agreed

to

cap

Williams's sentence to a total active term of fifteen years
imprisonment.

Had Williams not pled guilty, his conviction for

rape and forcible

sodomy likely was inevitable,

and Williams

would have been sentenced to life in prison.15

In light of the overwhelming evidence of his guilt of rape
and two counts forcible sodomy and the benefits he received from
entering the Alford plea, Williams cannot show that a reasonable

defendant in his position would have insisted on proceeding to

trial.

Accordingly,

Williams fails to demonstrate prejudice

from counsel's actions,
Fourteen,

and Claims One,

Sixteen through Twenty,

Three through Eleven,

Twenty-Five through Twenty-

Seven, and Twenty-Nine will be dismissed.

In Claims Thirteen and Twenty-Two,

Williams faults counsel

for not objecting to a purported speedy trial violation that

Section

sentence

of

18.2-67.5:3

life

in

of the

prison

Virginia

after

conviction of rape or forcible sodomy.
67.5:3(A)-(B) .

29

a

Code

second
Va.

or

mandates

a

subsequent

Code Ann. § 18 2-

occurred when counsel moved to continue the July 7, 2010 trial

date.16

In support of his claims, Williams states:

speedy

trial

Williams

contends

rights

that

under

the

the

convictions

Virginia

Constitution and Sixth Amendment.

Code,

violated

the

his

Virginia

(See Br. Supp. § 2254 Pet

19.)

The

Sixth

Amendment

provides:

"In

all

criminal

prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . ." U.S.

Const, amend. VI.

Article I, Section 8 of the Virginia Constitution provides:
"That in criminal prosecutions a man . . . shall enjoy the right
to a speedy and public trial . . . ." Va. Const. Art 1, § 8.
Section 19.2-243 of the Virginia Code provides:
Where a district court has found that there is
probable cause to believe that an adult has committed

a felony, the accused,
custody thereafter,

if he is held continuously in

shall be forever discharged from

prosecution for such offense if no trial

is commenced
in the circuit court within five months from the date

such probable cause was found by the district court;
and if the accused is not held in custody but has been
recognized for his appearance in the circuit court to
answer

for

discharged

such

from

offense,

prosecution

he

shall

therefor

if

be

no

forever

trial

is

commenced in the circuit court within nine months from
the date such probable cause was found.

If

there

was

no

preliminary

hearing

in

the

district court, or if such preliminary hearing was
waived by the accused, the commencement of the running
of the five and nine months periods, respectively, set
forth

in

indictment

this

or

section,

shall

presentment

is

be

from

found

the

date

against

an

the

accused.

If an indictment or presentment is found against
the accused but he has not been arrested for the
offense charged therein, the five and nine months
periods, respectively, shall commence to run from the
date of his arrest thereon.

Va. Code Ann. § 19.2-243 (West 2013).
However, "[t]he
provision of this section shall not apply to such period of
time as the failure to try the accused was caused: . . .
(4) By continuance granted on the motion of the accused or
his counsel . . . ." Id. § 19.2-243(4).
30

[T]he Commonwealth issued out a Subpoena Duces Tecum
to Centra Southside Community Hospital on September
25, 2009 for the production of the alleged victim's
medical records for her visit to the emergency room on
September

8,

2009.

The

medical

records

were

not

produced in a timely manner which the defendant's
counsel continued both the July 7,
2010 and the
September 10, 2010 jury trials.
Petitioner states
that because of ineffective assistance of counsel, his

counsel

did

September 21,

not

dispute

2010,

at

the

docket

that both continuances

hearing,
should not

be charged to the defense for speedy trial purposes
because it was the discovery issue and not the defense
issue in not getting the alleged victim's medical
records

(Br.

Supp.

....

§ 2254

Pet.

7.)

The Court fails

to discern

any

deficiency of counsel or resulting prejudice to Williams.
Neither Williams

nor the record clearly

indicate

the date

on which the speedy trial clock began to run under the Virginia

statute.17

Williams

seemingly

argues

that

the

two

defense

requested continuances of the July 7, 2010 trial date placed the
trial

outside

of

the

Virginia

speedy

trial

statute.

Because

Williams focuses his speedy trial violation arguments on the two

A magistrate found probable cause to arrest Williams on

September 9,

2009 and police arrested Williams

Warrant
of Arrest-Felony
Nos. CR10000177-00 through

the same day.

at
1,
Commonwealth v.
CR10000179-00 (Va. Cir.

Williams,
Ct. filed

March 30, 2010).
On March 29, 2010, Williams appeared before
the General District Court judge who heard the evidence and

ordered the case certified to the grand jury "having found
probable cause to believe that [Williams] committed the felony
charged in this warrant."
Id. at 2.
The grand jury indicted
Williams on April 20, 2010 and the Court set the trial date for

July 7, 2010.
Thus, it appears that the speedy trial clock
began to run under Virginia law on either March 29, 2010 or
April 20, 2010, and the July 7, 2010 trial date fell within the
five-month speedy trial period.
31

continuances of the July 7,

2010 trial date,

the Court limits

its discussion to the continuances.

By

Order

Williams's

entered

trial

Williams,

Nos.

Cir.

May 19,

Ct.

May

19,

for

July

date

2010,

7,

the

Circuit

2010.

Commonwealth

CR10000177-00 through CR10000179-00,

2010).

Court

In that Order,

at

set

v.

1 (Va.

signed by Williams,

Williams agreed that he fully understood his speedy trial rights
and

"fully

understands

that

a

motion

by

the

defendant

or

attorney for the defendant or a motion for a continuance agreed
to by the defendant or attorney for the defendant constitutes a

waiver

of his

Constitution,

speedy
the

19.2-243 . . . ."
2010,

counsel

trial

Virginia

Id.

rights" under
Constitution

"the

and

Va.

United
Code

States
Section

The record demonstrates that on July 7,

for Williams

filed a Motion

to

Continue

because

the hospital had not provided the subpoenaed medical records and
counsel believed the records "may be exculpatory in nature and
aid the defense."

Motion

to Continue at

1,

Commonwealth v.

Williams, Nos. CR10000177-00 through CR10000179-00 (Va. Cir. Ct.

filed July 6,

2010) .

Williams

agreed in open court that he

understood the motion and had no questions for the court.
7,

2010 Tr.

Court

3.)

continued

(July

The Commonwealth lodged no objection and the
the

trial

until

September

10,

2010.

Commonwealth v. Williams, Nos. CR10000177-00 through CR10000179-

00, at 1 (Va. Cir. Ct. July 7, 2010).
32

Williams signed the Order

granting

the

motion

and

again

agreed

that

any

continuance motion waived his speedy trial rights.
On

September

1,

2010,

counsel

again

defense

Id.

moved

to

continue

Williams's trial date because the subpoenaed medical records had
not

been

produced.

Motion

to

Continue

at

1,

Commonwealth

Williams, Nos. CR10000177-00 through CR10000179-00

filed Sept. 1, 2010).

Nos.

and

September 21,

CR10000177-00

Cir. Ct. Sept. 2, 2010).
motion

through

2010.

Commonwealth v.

CR10000179-00,

at

1

(Va.

Williams signed the Order granting the
that

any

waived his speedy trial rights.

Id.

On

again

(Va. Cir. Ct.

The Circuit Court granted the motion and

continued the trial until
Williams,

v.

the

deficiency

agreed

limited

of

record,

counsel

for

the

not

defense

Court

fails

arguing

that

violation occurred under Virginia law.
in

writing,

waive his

three

times,

that

speedy trial rights.

continuance

any

First,

defense

Second,

to

a

motion

discern

speedy

any

trial

Williams agreed

continuance

under Virginia

would

law,

defense continuances stop the running of the speedy trial clock.
Va

Code.

Ann.

§

19.2-243(4)

(West

2013).

Thus,

counsel

reasonably eschewed arguing that the defense continuances should

be counted in the speedy trial calculation and thus,

a speedy

trial- violation occurred.

Williams
In

light

of

demonstrates no prejudice
Virginia

law

and
33

from counsel's actions.

Williams's

affirmance

of

his

understanding that defense continuances constituted a waiver of

his speedy trial rights, Williams cannot demonstrate that, but
for

counsel's

purported

error,

the

Circuit

Court

would

have

continued to run the speedy trial clock in light of the defense
continuance motions.

Williams

also

fails

to

state

a

claim

of

ineffective

assistance based on the Sixth Amendment speedy trial right.
Court

considers

speedy trial
reason

for

four

claim:
the

factors

"(1)

delay;"

in

analyzing

the length
(3)

the

asserting the speedy trial right;

App'x 960,

963 (4th Cir.

407 U.S. 514, 530 (1972)).

Sixth

Amendment

of the delay;

defendant's

and (4)

defendant resulting from the delay.
305 F.

a

(2)

diligence

the
in

any prejudice to the

United States v.

2009)

The

(citing Barker v.

Thomas,
Winqo,

Counsel reasonably eschewed making a

speedy trial motion as none of these factors tip in Williams's
favor.

First, the delay Williams complains of here was around five
months,

and

that

alone

enumerated in Barker.

fails

to

trigger

the

other

factors

Thomas, 305 F. App'x at 963-64

(citing

United States v. MacDonald, 635 F.2d 1115, 1117 (4th Cir. 1980)

for the proposition that an eleven-month delay was "entirely too
short

to

'trigger'

further

inquiry

under

Barker").

Even

considering the other factors, Williams demonstrates no speedy
trial

violation

as

the

delay
34

was

caused

by

two

defense

continuances

agreed

to

by

the

parties,

promptly complain about the delay,

prejudice from the delay.
prejudice

Thus,

from counsel's

challenge.

Williams

failed

to

and Williams demonstrates no

Williams fails to demonstrate

failure

to raise

a

Sixth

Amendment

Claims Thirteen and Twenty-Two lack merit and will

be dismissed.

C.

Alford Plea Proceedings

In a related series of claims,

Williams faults counsel for

various purported deficiencies during the Alford plea hearing
based upon Williams's assertion that counsel deficiently advised
him

to

plead

guilty

evidence to convict
counsel

failed

evidence
Two),

him.

Commonwealth

For example,

object

to
to

failed

appropriate

the

contradictory

as

to

when

the

object

because

expert

for

admission

and

failed

to

Williams

Commonwealth's

the victim's

to

Twenty-Three)

lacked

the

object

argues

the

lacked

Court

of

Virginia

dismissed

these

Williams failed to demonstrate any prejudice.

of the Dep't of Corr., No.

121042, at 3-4,

35

the

(Claim

Commonwealth

lacked the victim's entire medical record (Claim Fifteen).
Supreme

of

(Claim

DNA evidence

because

that

proffer

statements

Commonwealth

of the

sufficient

claims

The

because

Williams v. Dir.

7-10 (Va. Jan 11,

2013. )18

The Supreme Court of Virginia's rejection of Williams's

claims was not unreasonable.

See 28 U.S.C. § 2254(d) (1)- (2).

Williams fails to demonstrate that,

deficiency of counsel,

he would have pleaded not guilty and

insisted on going to trial.
Williams

read

signed

during

the

a

Prior to the Alford plea hearing,

stipulation

plea

but for any purported

of

hearing.

facts

that

In the

caused

her

serious

Williams

v.

Cir.

filed Dec.

Ct.

Williams's

mental

Commonwealth,
7,

Alford plea,

injury.

the

(Dec.

7,

Williams

against her will,

Stipulation

CR10000178-00

2010);

Commonwealth

stipulation,

agreed that he unlawfully touched the victim,

and

the

&

CR10000179-00

2010

Commonwealth

at

Tr.

17-18).

1,
(Va.
For

needed only to put

forth evidence sufficient to support the charges of aggravated
sexual

assault.

The

Commonwealth's

factual

Williams's Alford plea based upon the victim's

basis

for

the

statement,

the

medical records demonstrating that the victim reported vaginal
and rectal penetration and rectal pain,

and the DNA evidence,

provided sufficient evidence for the aggravated sexual assault

charges.

Moreover,

the evidence the Commonwealth possessed for

trial would have sufficiently demonstrated that Williams raped
and forcibly sodomized the victim.

18 The Supreme Court also found no deficiency of counsel for
these

claims.
36

During the plea hearing,

Williams heard the Commonwealth's

factual basis for the plea and lodged no objection.

Instead, he

agreed that he understood that by pleading guilty he gave up any
defenses to the charges,

and he agreed that the evidence was

sufficient to prove his guilt of two counts of aggravated sexual

battery.

(Dec. 7, 2010 Tr. 22-23.)

evidence of Williams's guilt,

In light of the compelling

the significant benefits of the

Alford plea agreement, and his statements under oath affirming
that

he was

indeed guilty of the charges,

demonstrate
reasonable

that,

but

probability

for

counsel's

exists

that

he

Williams

would

have

to

errors,

purported

fails

a

not

entered

into the Alford plea and insisted on proceeding to trial.
Williams

also

claims

that

counsel

failed

to

move

to

withdraw Williams's Alford plea in light of the Commonwealth's

failure

to

proffer

sufficient

evidence

(Claim

Twelve)

and

despite the "exculpatory" nature of the victim's medical records

(Claim Twenty-Four).

(See Br. Supp. § 2254 Pet. 24,

the Supreme Court of Virginia reasonably determined,

demonstrates no deficiency of counsel or prejudice.
No. 121042, at 7-8,

First,

discern,

33.)

As

Williams

Williams,

14.

Williams fails to provide,

and the Court fails to

any basis for counsel to move to withdraw Williams's

validly entered Alford plea.
under the Alford plea,

As discussed in Part VI.A infra,

Williams maintained his innocence,
37

but

decided

United

to

plead

States

guilty

v.

for

Taylor,

reasons

659

F.3d

(citing North Carolina v. Alford,
entering

into the Alford plea,

of

self-interest.

339,

347

400 U.S.
Williams

(4th

25,

37

See

Cir.

2011)

(1970)).

waived his

right

challenge the sufficiency of the Commonwealth's evidence,
up any defenses to the charges,

By
to

gave

and agreed that the evidence was

sufficient to prove his guilt of two counts of aggravated sexual
battery.

(Dec.

7,

2010

Tr.

22-23);

see

Part

VI.A.

Thus,

counsel reasonably eschewed moving to withdraw Williams's plea.
Williams

failure

also

demonstrates

to withdraw

withdrawn

the

the

Alford

no

plea.

plea,

the

prejudice

If

counsel

Commonwealth

from

had

counsel's

successfully

would

have

gone

forward with the trial on the rape and forcible sodomy charges.
Based

on

the

difficulty
counts.

evidence,

obtaining

a

the

Commonwealth

conviction

By going to trial,

and

Williams

thus,

would

at

have

least

had

one

of

little

those

Williams would also lose the benefit

of the Commonwealth's agreement

years

on

would

face

a

to cap his sentence at fifteen

sentence

of

life

in prison.

fails to establish that a reasonable defendant

in his

position would have pleaded not guilty and insisted on going to
trial.

Claims Two, Twelve, Fifteen, Twenty-Three, Twenty-Four lack
merit and will be dismissed.

38

D.

In

Appeal Claim

Claim Twenty-One,

failed to file

so.

an appeal

In rejecting

Williams

contends

that

trial

counsel

after Williams's instructed him to do

this claim,

the Supreme

Court of Virginia

explained that:

[c]ounsel moved to withdraw,

was permitted to do so,

and new counsel was appointed.
[Williams's] newly
appointed counsel noted an appeal on petitioner's
behalf.

The
Court
holds
that
[Williams's]
claim . . . satisfies neither the "performance" nor
the "prejudice" prong of the two-part test enunciated
in Strickland.
Counsel properly moved to withdraw and
new counsel was appointed to ensure [Williams] was not
deprived of his right to appeal. Thus, [Williams] has

failed to demonstrate that counsel's performance was

deficient or that there is a reasonably probability
that,

but for counsel's alleged errors, the result of

the proceeding would have been different.

Williams, No. 121042, at 12.
application of the

facts.

See

28

The Court discerns no unreasonable

law or an unreasonable determination of the

U.S.C.

§ 2254(d)(1)-(2).

Williams

fails

to

establish any deficiency or prejudice as trial counsel properly
withdrew

and

the

Circuit

represent Williams on appeal.

Court

appointed

new

counsel

to

Claim Twenty-One lacks merit and

will be dismissed.
E.

In

Cumulative Ineffective Assistance

a

vague

and

conclusory

claim

(Claim

Twenty-Eight),

Williams suggests that the cumulative errors made by counsel
deprived Williams of the ineffective assistance of counsel.

39

In

support of his claim,

court

appionted

Williams states:

[sic]

counsel

so

"Petitioner contends his

utterly

failed

to

defend

against the primary charges that the trial on December 7, 2010

was

the

functional

rendering

equivalent

counsel's

of

a guilty plea/Alford plea,

representation

(Br. Supp. § 2254 Pet. 40.)

presumptively

inadequate."

Williams misstates the procedural

history and counsel's role at the Alford plea proceedings.
December 7,
charges

2010,

Williams entered his Alford plea to the two

of aggravated

Court held no trial.

believes

On

counsel

sexual

assault;

therefore,

the Circuit

The Court fails to discern why Williams

was

required

to

"defend

against

primary

charges" in light of Williams's decision to plead guilty.
To

the

extent

Williams

intends

to

argue

that

counsel's

cumulative errors prejudiced him, Williams's claim lacks merit.

In light of the compelling evidence of his guilt of rape and
forcible sodomy,

his likelihood of conviction on those counts,

and his exposure to a sentence of life in prison, combined with
the beneficial

terms

of the

plea

agreement,

Williams

cannot

demonstrate that a reasonable defendant in his position would
have pled not guilty and insisted on going to trial.
Twenty-Eight will be dismissed.

40

Claim

VI.

SUBSTANTIVE CLAIMS

In Claims Thirty through Thirty-Eight, Williams argues that

certain defects occurred in the criminal process leading up to
the entry of his Alford plea.
A.

Claims Barred By Validly Entered Plea

The

majority

essence,

of

Williams's

substantive

and

Thirty-Eight),

including

the

evidence to support the grand jury indictment
and a challenge

to the

validity

(Claims Thirty-One and Thirty-Five).

the

are,

in

a challenge to the sufficiency of the evidence (Claims

Thirty-Three

Four),

claims

Commonwealth

violated

his

sufficiency

of

(Claim Thirty-

of his

Alford

plea

Williams also argues that

speedy

trial

rights.

(Claim

Thirty-Two.)

The Supreme Court of Virginia found these claims "[were]

barred because a voluntary and intelligent guilty plea waives

all

non-jurisdictional

See Peyton v.

(1969)."
3

(Va.

King,

defenses

210 Va.

antecedent to a guilty plea.

194,

196-97,

169 S.E.2d 569,

571

Williams v. Dir. of the Dep't of Corr., No. 121042, at
Jan.

11,

2013.)

The

Court

discerns

no

unreasonable

application of the law or an unreasonable determination of the

facts

in the

claims.

Supreme

Court of Virginia's

rejection of these

See 28 U.S.C. § 2254(d)(1)-(2).

"An Alford

plea

is an

arrangement

in which

a

defendant

maintains his innocence but pleads guilty for reasons of self41

interest."

2011)

United States v. Taylor, 659 F.3d 339, 347 (4th Cir.

(citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).

The "distinguishing

feature"

defendant

confirm the

does

plea[.]"

Id.

omitted).

not

(citation

of an Alford plea is

factual

omitted)

(internal

the

underlying

basis

"that

his

quotation

marks

"[A]n Alford plea is an intentional, specific action

which serves

a distinct

function

ensuring that a defendant's

in the law,

namely that

of

'protestations of innocence' do not

undermine confidence that the constitutional requirement that a
plea of guilty be voluntary and intelligent has been satisfied."
Id. (citing Alford, 400 U.S. at 33, 37-39).

"[C]ourts treat Alford pleas as having the same preclusive
effect

651,

as a guilty

plea."

652 (Va. Ct. App.

Supp.

485,

492

(D.

Perry v.

2000)

Colo.

Commonwealth,

(quoting Cortese v.

1993)).

Thus,

intelligently entering an Alford plea,'

533 S.E.2d

Black,

"xby

[Williams]

838 F.

freely

and

'waived his

right to appeal the issue of whether the evidence was sufficient

to prove beyond a reasonable doubt that he was guilty of that
charge.'"

2007)

Price v.

Johnson,

(quoting Perry,

guilty
defects,

plea

the charges.'"

App'x 274,

533 S.E.2d at 652-53)).

constitutes

including the

218 F.

a

right

waiver

of

to contest

all
the

275

(4th Cir.

Moreover,

"Ma]

nonjurisdictional
factual

merits

of

United States v. Martinez, 424 F. App'x 208, 209

42

(4th Cir. 2011) (quoting United States v. Willis, 992 F.2d 489,
490 (4th Cir. 1993)); accord Peyton, 169 S.E.2d at 571.

Here,

the Circuit Court thoroughly questioned Williams to

ensure that Williams's Alford plea was freely,

voluntarily made.

See supra Part IV.A.

knowingly,

and

Accordingly, Williams's

claim challenging the validity of his plea and the appellate

waiver

(Claim Thirty-Five)

statements

under

oath.

is

foreclosed from review by his

Williams's

claims

challenging

the

sufficiency of the Commonwealth's evidence (Claims Thirty-Three,
Thirty-Four,

and

Thirty-Eight)

and

nonjurisdictional

defects

such as the purported speedy trial violations (Claim Thirty-Two)
are also waived by his validly entered plea.

See Price, 218 F.

App'x at 275; Martinez, 424 F. App'x at 209.

Claims Thirty-Two,

Thirty-Three, Thirty-Four, Thirty-Five, and Thirty-Eight will be
dismissed.

B.

Failure to Disclose Evidence

In

failed

Claim Thirty,

to disclose

Williams

favorable

contends

evidence,

that

the

in the

Commonwealth

form

of

the

victim's medical records, in violation of Brady v. Maryland, 373
U.S.

83

(1963).

Specifically,

Williams

argues

that

he

personally failed to receive the victim's medical records until

after he entered his Alford plea.
17, 21, 38-39,

41-42.)

43

(Br. Supp. § 2254 Pet. 12-13,

Brady and

conviction

its progeny

and

order

a

"require [ ] a

new

trial

if

court

it

to vacate

finds

that

prosecution suppressed materially exculpatory evidence."
States v. King, 628 F.3d 693, 701 (4th Cir. 2011).

the

United

In order to

obtain relief under Brady a litigant must "(1)
existence of evidence favorable to the accused;

a

identify the
(2)

show that

the government suppressed the evidence; and (3) demonstrate that

the suppression was material."

Id.

(citing Monroe v. Angelone,

323 F.3d 286, 299 (4th Cir. 2003)).

Under the Brady analysis,

evidence

is

material

if

it

generates

a

"'reasonable

probability'" of a different result at trial had the evidence

been disclosed.

Moseley v. Branker, 550 F.3d 312, 318 (4th Cir.

2008)

United

(quoting

(1985)).

States

v.

Bagley,

473

U.S.

667,

682

"'The question is not whether the defendant would more

likely than

not

have

received a

different verdict

with

the

evidence, but whether in its absence he received a fair trial,
understood

as

confidence.'"

(1995)).
plea,

a

trial

resulting

in

a

verdict

worthy

of

Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434

The Court recognizes that in the context of a guilty

Brady may have no applicability,

see Loiseau v.

Clarke,

No. 3:12CV580, 2013 WL 3894001, at * 3 (E.D. Va. July 26, 2013)
(citations omitted), however, the Court need not delve into that
analysis because Williams's Brady claim lacks factual merit.

44

Centra

Southside

Community

Hospital

filed

the

victim's

medical records with the Circuit Court on September 3,
See

Sealed

Medical

CR10000178-00
Thus,

Records,

& CR10000179-00

Williams

(Va.

Cir.

v.

Ct.

2010.

Commonwealth,

Sept.

3,

2010).

counsel had access to the victim's medical records three

months prior to Williams's December 7,

2010 trial date and the

date upon which he entered into his Alford plea.
Brady

claim

fails

because

he

fails

to

Williams's

demonstrate

that

the

Commonwealth withheld exculpatory evidence from the defense.
Even

if

withheld

Williams

evidence,19

could

establish

Williams

that

cannot

the

Commonwealth

establish

that

nondisclosure caused him to receive an unfair trial.

550 F.3d at 318.
Part

IV.B,

that

First,

as discussed previously,

the victim's medical

Williams

raped

and

records

sodomized

demonstrated

The

record

that

Williams

demonstrates

her;

raped

that

thus,

allegation

that

the

see supra

the

Williams

Second, compelling
and sodomized

the

hospital,

the

Commonwealth, held the victim's medical records.

unsupported

Moseley,

support her statement

mischaracterizes the records as exculpatory.
evidence

this

not

Other than his

Commonwealth

suppressed

evidence, Williams alleges no involvement of the Commonwealth in

the hospital's
Moreover,

records

failure

to

while the state

were

incomplete,

timely comply with
court

it

record

shows

simultaneously

Williams knew this when he pled guilty.

31-32.)

subpoena.

indicates

that

(See Dec. 7, 2010 Tr.

Williams alleges no facts suggesting the exculpatory

nature of any missing

advance

the

that the medical

facts

that

information.

demonstrate

unknowing.
45

his

Thus,

plea

Williams fails

was

to

involuntary or

victim; yet, the Commonwealth allowed him to plead guilty to the
lesser charges of aggravated sexual battery and avoid a life
sentence.
C.

Claim Thirty lacks merit and will be dismissed.
Remaining Claims

Williams's remaining claims lack proper factual support,
are entirely conclusory,

and/or fail to allege a violation of

the constitution.

In Claim

Thirty-One,

Williams

contends

that

the

Circuit

Court judge expressed doubt about the entry of Williams's guilty
plea

when

he

stated:

"he

'thinks'

this

is

a

reasonable

deposition [sic] to accept the Alford Plea agreement finding the
defendant guilty of both amended charges of aggravated sexual

battery rather than saying he accepts the Alford Plea agreement
finding the defendant guilty beyond a reasonable doubt of both

amended charges."

(Br. Supp. § 2254 Pet. 13.)

Williams claims

that the Circuit Court's statement "shows the honorable judge
had some doubt in his verdict . . . ."
fails

to

identify how

constitution.

right

the

judge's

(idj

statement

First, Williams
implicates

the

Second, by pleading guilty, Williams waived the

to trial

reasonable doubt.

and a jury finding of his
As explained previously,

guilt

beyond a

the Circuit Court

needed only to find a sufficient factual basis for Williams's
plea.

Claim Thirty-One will be dismissed.

46

In

Claim

Thirty-Six,

Williams

contends

that

the

Commonwealth engaged in prosecutorial misconduct by knowingly
presenting false testimony in presenting the factual basis for

the plea.
Williams

(Br.
faults

Supp.
the

§ 2254

Pet.

Commonwealth

21,
for

38.)

"proffer[ing]

testimony to fit the amended charges . . . ."
id_^ at

38).

charges,

In reciting the

factual

Essentially,

basis

false

(Id. at 21; see
for the

amended

the Commonwealth modified the victim's statement that

Williams vaginally and anally penetrated her to instead provide
a basis for the aggravated sexual battery charge.

the

plea,

the

Commonwealth

stated

that

In support of

Williams

unlawfully

touched the victim's genitalia and buttocks against her will.
(See Dec.

Williams's

statement,

7,

2010 Tr.

plea

is

26-32.)

While this

undoubtedly

altered

factual basis

from

the

for

victim's

the victim's statement that Williams vaginally and

anally penetrated her certainly amounted to an unlawful touching
against her will.

Claim Thirty-Six lacks merit

and will

be

dismissed.

Finally, in Claim Thirty-Seven, Williams faults the Circuit

Court for failing to hold Centra Southside Community Hospital in
contempt of court for failing to comply with the subpoena of the

victim's medical records.

Williams fails to identify how the

Circuit Court's failure to hold the hospital in contempt of

47

court violates his constitutional rights.

Claim Thirty-Seven

will be dismissed.

Additionally,

to

the

extent

Williams

believes

that

the

Court failed to frame his abundant claims in the exact manner as

he presented in his Writ of Habeas Corpus Petition Grounds and

Brief Document

(ECF No.

1-1),

the Court has carefully and

thoroughly reviewed the record and finds

Williams

raises no

meritorious claims.

VII.

CONCLUSION

Respondent's Motion to Dismiss (ECF No. 9) will be granted.
Williams's claims are dismissed and the petition for a writ of

habeas corpus will be denied.
(ECF No. 8) will be denied.20

Williams's Motion for Discovery
The action will be dismissed.

A

certificate of appealability will be denied.21

20

A federal habeas petitioner must demonstrate good cause
before he or she is allowed to conduct discovery. Stephens v

Branker, 570 F.3d 198, 213 (4th Cir. 2009).
cause must

include

specific allegations

"A showing of good
suggesting that

petitioner will be able to demonstrate that he [or she]

the

is

entitled to habeas corpus relief," once the facts are fully
developed. Id^ (citing Bracy v. Gramley, 520 U.S. 899, 908-09
(1997)). Williams fails to make such a showing.
An appeal may not be taken from the final order in a

§ 2254 proceeding unless a judge issues a certificate of
appealability ("COA").
28 U.S.C. § 2253(c)(1)(A).
A COA will

not issue unless a prisoner makes "a substantial showing of the
denial of a constitutional right."
28 U.S.C. § 2253(c)(2).
This requirement is satisfied only when "reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
48

The

Clerk

is

directed

to

send

copy

of

the

Memorandum

Opinion to Williams and counsel of record.

/s/

Robert E. Payne

£tS

Senior United States District Judge
Richmond, Virginia
Date:

N^(^Ol l\;l6>lf

the issues presented were 'adequate to deserve encouragement to
proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S.
Williams fails to make this showing.
49

880,

893 & n.4

(1983)).