Wilson v. Brown
Filing
16
MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 9/18/2015. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
NATALIA LESCHENKO WILSON,
Petitioner,
Civil Action No. 3:14cv768
V.
TAMMY BROWN, Warden of the Fluvanna
Correctional Center for Women,
Respondent.
MEMORANDUM OPINION
PetitionerNatalia Leschenko Wilson, a Virginia state inmate proceedingpro se, brings
this petition for awrit ofhabeas corpus ("§ 2254 Petition") pursuant to 28 U.S.C. §2254.' (EOF
No. 1.) Brown filed a Motion to Dismiss (ECF No. 6) and Rule 5 Answer (EOF No. 7), raising,
among other issues, Wilson's failure to file her § 2254 Petition within the statute oflimitations
pursuant to 28 U.S.C, §2244(d)(l).^ Wilson failed to respond to the Motion to Dismiss.
However, the Court ordered further briefing onwhether Wilson filed her petition within the
' 28 U.S.C. § 2254(a) states in relevant part:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he [or
she] is in custody in violation of the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2254(a).
^28 U.S.C. § 2244(d)(1) states, in pertinent part: "(d)(1) A l-year period of limitation
shall apply to an application for a writ ofhabeas corpus by a person incustody pursuant to the
judgment ofa State court." 28 U.S.C. § 2244(d)(1).
statute oflimitations (ECF No. 9), and both parties complied (ECF Nos. 13-14).^ The matter is
ripe for disposition. For the reasons that follow, the Court grants in part and denies in part
Brown's Motion to Dismiss. (ECF No. 6.)
I, Procedural History
On September 4, 2012, Wilson, represented by counsel, pled guilty to two counts of
capital murder in the Circuit Court of Prince William County, Virginia ("Circuit Court").
Commonwealth v. Wilson^ Nos. CRl0000989-00, -990-00, -1031-00 to -1037-00 (Va. Cir. Ct
Sept. 4,2012), On September 18, 2012, the Circuit Court sentenced Wilson to two concurrent
terms of life imprisonment. Commonwealth v. Wilson^ Nos. CRl 0000989-00, -990-00, -1031-00
to -1037-00 (Va. Cir. Ct. Sept. 18, 2012). Wilson sought no direct appeal of her conviction or
her sentence from the Virginia Court of Appeals, the Supreme Court of Virginia, or the Supreme
Court of the United States. Wilson did not file a habeas petition with the Circuit Court. Instead,
she filed a habeas petition with the Supreme Court of Virginia, raising some of the same claims
as those in the instant Petition. Corr. Petition for Writ of Habeas Corpus ("State Pet.") at 1-2,
Wilson V. Baskerville, No. 131631 (Va. filed Nov. 21, 2013). On July 31, 2014, the Virginia
Supreme Court granted the respondent's motion to dismiss and dismissed Wilson's petition on
the merits. Wilson v. Baskerville, No. 131631, at 5 (Va. July 31, 2014). On Friday, November 7,
2014, the Supreme Court of Virginia denied Wilson's petition for rehearing. (Pet. Writ of
Habeas Corpus ("§ 2254 Pet.") 3, ECF No. 1.)
^In Wilson's supplemental brief, she suggests that Brown's Motion and Answer were
untimely filed. (Counsel's Aff Def.'s Habeas Filing State Ct. ("Wilson Supp'l Br.") 1, ECF
No. 14.) On December 29, 2015, the Court issued its Order directing the Clerk of the Court to
serve Brown and ordering Brownto file her responsive pleadings within 30 days of receipt of the
Order. (Dec. 29, 2014 O. 1, ECF No. 5.) On February 4, 2015, 35 days following the entry of
the Order, Brown filed her responsive pleadings. (ECF Nos, 6-8.) Nothing in the record
suggests that Brown failedto comply with the Court's December 29, 2014 Order.
On Monday, November 10, 2014, Wilson, by counsel, filed her § 2254 Petition in this
Court. (§ 2254 Pet. 1.) Wilson raises six grounds for relief:
I.
"The state court committed an error of Constitutional magnitude when it
refused to exclude Ms. Wilson's confession on the ground that it was the product
of an unreasonable seizure in violation of the Fourth Amendment.
(§ 2254
Pet. 10.)
II.
"The Circuit Court of Prince William County erred in not excluding Ms. Wilson's
confession asthe product of the Commonwealth's violation of her Fifth Amendment[^]
right against self-incrimination." (§ 2254 Pet. 17.)
III.
"Ms. Wilson was prejudiced by the ineffective assistance of her trial attorneys
that prevailed on her to plead guilty and receive a sentence of life imprisonment, opting
out of going to trail [sic] for the adjudication of guilt or innocence." (§ 2254 Pet. 30.)
IV.
Wilson's "constitutional protections against double jeopardy were violated by the
state court's decision." (§ 2254 Pet. 35.)
V.
Wilson's "guilty plea was not knowing, intelligent, or voluntary." (§ 2254
Pet. 36.)
VI.
The "Supreme Court of Virginia manifestly misapplied the law and unreasonably
determined facts." (§ 2254 Pet. 42.)
A.
"In rendering its decision, the Virginia Supreme Court impermissibly
considered evidence that was not presented to the trial court and whose
authenticity was subject to a legal challenge." (§ 2254 Pet. 42.)
B.
"The Virginia Supreme Court erred in finding petitioner's arguments that
her confession was obtained in violation of the fourth and fifth amendments to the
United States constitution to be barred by Peyton v. King" (§ 2254 Pet. 44.)
^ The Fourth Amendment states in full:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const, amend. IV.
^"No person shall be ... deprived of life, liberty, or property, without due process of
law
" U.S. Const, amend. V.
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C.
"The conclusion of the Virginia Supreme Court that petitioner was not
unduly prejudiced by trial counsel's ineffective assistance was erroneous."
(§ 2254 Pet. 46.)
D.
"The Virginia Supreme Court erred in finding that petitioner's double
jeopardy claim was non-reviewable because it was a non-jurisdictional issue that
had not been raised at trial and on direct appeal." (§ 2254 Pet. 49.)
II. Statute of Limitations
This Court cannot dismiss Wilson's claims for failure to file within the applicable statute
of limitations. Pursuant to 28 U.S.C. § 2244(d)(1)(A), Wilson's judgment became final on
Thursday, October 18, 2012, the last day to file an appeal with the Court of Appeals of Virginia.
Hill V. Braxton, 111 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period begins
running when direct review of the state conviction is completed or when the time for seeking
direct review has expired ...." (citing § 2244(d)(1)(A))); Va. Sup. Ct. R. 5A:6(a) ("No appeal
shall be allowed unless, within 30 days after entry of final judgment,.. counsel files with the
clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such
notice to all opposing counsel."). Thus, under § 2244(d)(1)(A), Wilson had one year, or until
Friday, October 18, 2013 to file a federal habeas corpus petition challenging her conviction or
sentence, unless statutory or equitable tolling applied.
"[Brown] bears the burden of establishing that the statute of limitations bars [Wilson's]
Petition." Bethea v. Dir., Dep't ofCorr., No. 3:09cv770, 2010 WL 4702366 (E.D. Va. Nov. 12,
2010) (citations omitted). Despite further briefing by both parties, the Court lacks a definitive
record as to whether Wilson properly filed her petition in the Supreme Court of Virginia to toll
statutorily the federal statute of limitations pursuant to 28 U.S.C. § 2244(d)(2). Brown thus fails
to meet her burden of establishing that the statute of limitations bars Wilson's § 2254 Petition,
This record demonstrates that Wilson's counsel attempted to file the petition onFriday,
October 18,2013, but counsel contends that the Virginia Supreme Court closed earlier than
expected that day. When in-person filing proved unsuccessful, Wilson's counsel mailed the
petition on October 18 to the Supreme Court ofVirginia via priority mail, and the Court
physically received the petition on Monday, October 21, 2013. SeeVo,. Sup. Ct. R. 5:5(c) ( Any
document required to be filed with the clerk ofthis Court shall be deemed to be timely filed if(1)
it istransmitted expense pre-paid tothe clerk ofthis Court by priority . .. mail via the United
States Postal Service
"). The petition mailed on October 18, 2013 was apparently
inadequate invarious respects. {See Resp. Supp'l Br. Ex. D). The Virginia Supreme Court's
order dismissing Wilson's state habeas petition references her corrected petition filed on
November 21,2013. Wilson^ No. 131631, at 1.
However, the Supreme Court of Virginia's case information website indicates that
Wilson's petition was filed October 21, 2013. (Resp. Supp'l Br. Ex. C.) Wilson avers that
although the Virginia Supreme Court physically received her petition on Monday, October 21,
2013, the Chief Deputy Clerk assured her counsel that, because counsel mailed thepetition on
October 18, 2013, Wilson's petition would have been considered filed as of the earlier date.
Brown argues that Wilson filed her state petition on October 21, 2013. Brown did not address
whether any statutory or equitable tolling would be available to Wilson. Brown also summarily
argues that Virginia Supreme Court Rule 5:5 does not apply inthis instance. But see Va. Sup.
Ct. R. 5:5(c).
Although some circumstances remain ambiguous, it appears that Wilson's state petition
might have been deemed filed as ofOctober 18, 2013 because the record could support a finding
that she mailed the petition on thatdate to the Supreme Court of Virginia. See Va. Sup. Ct.
R. 5:5{c). While the petition filed on October 18, 2013 exhibited deficiencies, nothing before
this Court demonstrates that the Supreme Court of Virginia rejected the petition as improper.
Indeed, the Virginia Supreme Court rejected Wilson's petition on the merits without addressing
timeliness. Accordingly, based on the indeterminate record presented. Brown fails to meet her
burden of proof, and the Court denies the Motion to Dismiss for untimeliness.
III. Analysis of the Motion to Dismiss
A.
Exhaustion and Procedural Default
State exhaustion "is rooted in considerations of federal-state comity" and in
Congressional determination via federal habeas laws "that exhaustion of adequate state remedies
will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F. Supp. 2d 473,479 (E.D,
Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.lO (1973)). The purpose of
the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct
alleged violations of its prisoners' federal rights." Picard v. Connor^ 404 U.S. 270, 275 (1971)
(citation omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state
remedies before he or she can apply for federal habeas relief. See O 'Sullivan v. Boerckel, 526
U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the
statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies
available in the courts of the State ... if he [or she] has the right under the law of the State to
raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an
adequate "opportunity" to address the constitutional claims advanced on federal habeas.
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
"To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his [or
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her] claim in each appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting
Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present "'both
the operative facts and the controlling legal principles' associated with each claim" to the state
courts. Longworth v. Ozmint, 377 F.3d 437,448 (4th Cir. 2004) (quoting Baker v. Corcoran,
220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in
accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith,
21 F,3d 991, 994-95 (4th Cir. 1994).
"A distinct but related limit on the scope of federal habeas review is the doctrine of
procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides
that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a
state procedural rule, and that procedural rule provides an independent and adequate ground for
the dismissal, the habeas petitioner has procedurally defaulted his [or her] federal habeas claim."
Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner
also procedurally defaults claims when he or she "fails to exhaust available state remedies and
'the court to which the petitioner would be required to present his claims in order to meet the
exhaustionrequirement would now find the claims procedurally barred.'" Id. (quoting Coleman,
501 U.S. at 735 n.l). The burden of pleading and proving that a claim is procedurally defaulted
restswith the state. Jones v. Sussex I State Prison, 591 F,3d 707, 716 (4th Cir. 2010) (citations
omitted). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this
Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262
(1989).
1.
Claim V Is Not Exhausted and Is Procedurallv Defaulted
The Court cannot address the merits of Wilson's Claim V, that her guilty plea was not
knowing, intelligent, or voluntary, because it is not exhausted and is procedurally defaulted. In
her state habeas proceedings, Wilson raised this claim for the first time in her response to the
respondent's motion to dismiss. Wilson,^Q. 131631, at 4. The Supreme Court of Virginia
refused to consider this claim because Wilson failed to comply with Va. Code § 8.01-654(B)(2),
which requires that a petition for a writ of habeas corpus "contain all allegations the facts of
which are known to petitioner at the time of filing." Wilson,No. 131631, at 4-5 (citing Va,
Code § 8.01-654(B)(2)).
Wilson did not exhaust the claim that her guilty pleas were involuntary because she did
not "fairly apprise[ ]" the Virginia Supreme Court of this claim. Mallory, 27 F.3d at 994. First,
Wilson plainly did not present this claim in her state habeas petition. Wilson^ No. 131631, at 45; see State Pet. i-iv, Wilson, No. 131631 (outlining Wilson's claims without listing the claim of
an involuntary guilty plea). Second, she introduced this issue only in her response to the
Commonwealth's motion to dismiss her state habeas petition. Id. at 4; see Reply Mot. Dismiss
Habeas Corpus Pet. 1-11, Wilson v. Baskerville, No. 131631 (Va. filed Mar. 17, 2014). Finally,
Wilson did not seek leave to amend her state habeas petition to add a claim that her guilty pleas
were involuntary. Wilson, No. 131631, at 5.
Exhaustion cannot be satisfied by mere "notice." Mallory, 21 F.3d at 995-96. The
United States Court of Appeals for the Fourth Circuit does not require Virginia courts to "wind
their way through ... arguably presented claims .,. that were never specified as grounds for
relief [in the habeas petition]." Mallory, 27 F.3d at 995. Wilson fails to demonstrate that, under
Virginia's "chosen procedural scheme," presenting a new claim in her reply brief "constitutes a
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proper method for raising a federal constitutional claim on state habeas." Reyes v. Kelly, No.
3:09cv23, 2011 WL 5149975, at *3 (E.D. Va. Sept. 20, 2011) (refusing to review a claim raised
for the first time in a reply to a motion to dismiss in the state habeas proceeding) (citing Mallory,
27 F.3d at 995); see Green v. Dir., Va. Dep'/Corr., No. 7:llcvl46, 2011 WL 2947047, at *6 n.*
(W.D. Va. July 19, 2011) (same). Wilson did not adhere to the "state's chosen procedural
scheme" by following § 8.01-654(B)(2) or by seeking leave to amend the petition to add an
involuntary guilty plea claim. Mallory, 27 F.3d at 995. Accordingly, Wilson failed to exhaust
this claim.
If Wilson were to attempt to return to the Supreme Court of Virginia now and present
Claim V, that court would find the claim barred by § 8.01-654(B)(2) for the reasons it articulated
in its July 31, 2014 order, Wilson, No. 131631, at 5, and because that Virginia Code section also
bars successive petitions. Va. Code § 8.01-654(B)(2) ("No writ shall be granted on the basis of
any allegation the facts of which petitioner had knowledge at the time of filing any previous
petition."); see Breard, 134 F.3d at 619-20. Section 8.01-654(B)(2) constitutes an independent
and adequate state procedural rule. See George v. Angelone, 100 F.3d 353, 363-64 (4th Cir.
1996). Accordingly, Claim V is not exhausted and is procedurally defaulted.
Because Claim V is procedurally defaulted, the Court camiot review the merits of
Claim V without a showing of cause and prejudice or a fundamental miscarriage ofjustice.
Harris, 489 U.S. at 262. Wilson bears the burden to make this showing. Id. Wilson presents no
facts showing cause why her habeas counsel failed to allege that her guilty plea was involuntary
in her original state habeas petition. She also does not allege that any fiindamental miscarriage
ofjustice would result fi*om the procedural default of Claim V. Accordingly, she has not met her
burden to show that this Court can review the merits of Claim V. The Court grants Brown's
Motion to Dismiss Claim V.
2.
Claim IV Is Procedurallv Defaulted
The Court cannot consider the merits of Wilson's Claim IV, that her convictions and
sentences violate her right against double jeopardy, because it is procedurally defaulted. The
Supreme Court of Virginia dismissed Wilson's Claim IV pursuant to Slayton v. Parrigan, 205
S.E,2d 680, 682 (Va. 1974), because Wilson could have, but failed, to raise these claims at trial
and on direct appeal. Wilson, No. 131631, at 4. The Fourth Circuit routinely finds that Slayton
constitutes an independent and adequate state procedural rule.^ Burket v. Angelone, 208 F,3d
172, 189 (4th Cir. 2000); Wright v. Angelone, 151 F.3d 151,159-60 (4th Cir. 1998).
^Wilson incorrectly argues thatthecourt inJonesheld thatSlayton does notprovide an
independent and adequate state procedural rule as applied in all double jeopardy cases. In Jones,
the petitioner raised an "atypical constitutional claim" of a double jeopardy violation under the
"incidental detention doctrine." Jones, 591 F.3d at 710 (applying the "incidental detention
doctrine" when "a defendant is 'accused of abduction by detention and another crime involving
restraint of the victim, both growing out of a continuing course of conduct'") (citation omitted).
The petitioner in Jones had not explicitly presented the double jeopardy claim on direct appeal,
and the Supreme Court of Virginia held that Slayton barred the claim in the state habeas
proceedings, /(c/. at 711.
However, in his direct appeal, Jones had cited to cases deciding claims under the
"incidental detention doctrine." Id. at 713-14. The Fourth Circuit noted that the Supreme Court
of Virginia "has indulged a more lenient pleading standard where the alleged error pertains to the
incidental detention doctrine." Id. at 716. Because Jones had fairly presented his double
jeopardy claim on direct appeal, and because the claim relied on the more lenient requirements of
the "incidental detention doctrine," the Fourth Circuit held that the Commonwealth had not met
its burden to show that Slayton was an "independent and adequate state procedural rule" barring
petitioner's "atypical" double jeopardy claim. /J. at 710, 716-17.
The circumstances in Jones are not factually or procedurally analogous to Wilson's case.
Id, at 716. Wilson's case is factually distinct fi-om Jones because her crimes did not involve any
abduction by detention. Procedurally, unlike the petitioner in Jones, Wilson did not raise her
double jeopardy claim in any manner at trial or on direct appeal. Further, she does not rely upon
the "incidental detention doctrine" that would allow for more lenient pleading.
Courts consistently hold that, in circumstances procedurally analogous to Wilson's case,
Slayton constitutes an independent and adequate state procedural rule. See, e.g.,Bethea v. Dir.,
Dep't ofCorr., No. 3:09cv613, 2011 WL 497896, at *4 (E.D. Va. Feb. 7, 2011) (holding that
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Because Claim IV is procedurally defaulted, the Court cannot review the merits of
Claim IV without a showing of cause and prejudice or a fundamental miscarriage ofjustice.
Harris, 489 U.S. at 262. Wilson bears the burden to make this showing. Mallory, 27 F.3d
at 994-95. Wilson does not present any facts showing cause for her counsel's failure to allege at
trial or on direct appeal that her rights against double jeopardy were violated. She also raises no
claim that the default of Claim IV would constitute a fundamental miscarriage ofjustice.
Accordingly, she has not met her burden to show that this Court can review the merits of
Claim IV. The Court grants Brown's Motion to Dismiss Claim IV.
B.
Brown Fails to Adequately Address Claims 1.11. and III
Brown fails to adequately address Wilson's Claims I, II, and III. Wilson's Claims I and
II, like Claims I and II in her state habeas petition, argue that the trial court violated Wilson's
constitutional rights under the Fourth and Fifth Amendments when it refused to exclude
Wilson's confession. {Seegenerally § 2254 Pet. 10-30.) The Supreme Court of Virginia applied
the rule set forth in Peyton v. King^ 169 S.E.2d 569 (Va. 1969), refusing to consider Wilson's
Claims I and II on habeas review because it found that she waived all non-jurisdictional defenses
occurring prior to her guilty plea. Wilson, No. 131631, at 1-2. Wilson's Claim III, also similar
to her third claim in the state habeas petition, asserts that Wilson's trial counsel provided
ineffective assistance in various ways, including pressuring her to plead guilty. {Seegenerally
§ 2254 Pet. at 30-35.) The Virginia Supreme Court, c\\m% Anderson v. Warden ofthe Powhatan
Corr. Ctr., 281 S.E.2d 885 (Va. 1981), declined to consider Wilson's claims of ineffective
assistance of counsel because it found that her allegations did not offer a valid reason to abrogate
doublejeopardy claim was procedurally defaulted pursuant to Slayton when petitioner, who pled
guilty, failed to raise claim at trial or on direct appeal); Cudworth v. Dir., Dep't ofCorr., No,
7:09cv373, 2010 WL 1030797, at *4 (W.D. Va. Mar, 15, 2010) (same); Scott v. Wheeler, No.
7:05cv57, 2005 WL 1388912, at *2 (W.D. Va. June 10, 2005) (same).
11
her representations at her guilty plea colloquy that her counsel was effective.^ Wilson,
No. 131631, at 2^.
Aguilty plea normally forecloses challenges to "antecedent constitutional deprivations."
Vines v. Johnson, 569 F. Supp. 2d 579, 584-85 (E.D. Va. 2008) (citing Tollett v. Henderson, 411
U.S. 258, 266-67, 273 (1973); Fields v. Attorney Gen. ofMd, 956 F.2d 1290,1294 (4th Cir.
1992)). "[0]nce judgment on aplea is final, collateral inquiry for constitutional claims that
occurred prior to its entry is generally limited to whether the plea itself was knowing and
voluntary." Id., 569 F. Supp. 2d at585 (citing Slavek, 359 F. Supp. 2d at481). However, a
guilty plea does not preclude an ineffective assistance ofcounsel claim when the claim asserts
that the plea was obtained as a result ofthe ineffective assistance. Id.
Wilson's Claim III essentially contends that her trial counsel improperly coerced
Wilson's guilty pleas by wrongfully advising her that she would be found guilty and receive the
death penalty, despite what Wilson contends was legal and factual support otherwise. Wilson's
Claims I and II address the constitionality of actions the trial court took regarding a suppression
motion addressed prior tothe entry ofher guilty plea. Therefore, the Court cannot resolve
Claims I and II until it has addressed Claim III, specifically, whether Wilson's guilty pleawas
In the "merits" section of the Motion to Dismiss, Brown merely raises procedural bars
to this Court's review of Wilson's Claims I, II, and III instead of addressing the substance of
each. Brown bears the burden to show procedural default. Jones, 591 F.3d at 716. Atthis
juncture. Brown fails to demonstrate X\i2X Anderson and Peyton constitute "adequate and
independent state procedural rules" to procedurally defauh Wilson's Claims I, II, and III. See
Hamilton v. Dir. ofVDOC, No. 3:14cv636,2015 WL 2206547, at*1-2 (E.D. Va. May 11, 2015)
(citing Davis v. Mitchell, No. 3:09cv37, 2010 WL 1169956, at *5 (E.D. Va. M^. 24, 2010);
Slavek, 359 F. Supp. 2d at 490-91).
^ In an ineffective assistance of counsel claim in the context of a guilty plea, the
petitioner must demonstrate that (1) "his [or her] trial counsel's performance fell below an
objective standard ofreasonableness," and, (2) "there is areasonable probability that, but for
counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to
trial." Slavek, 359 F. Supp. 2d at 491 (quoting Burket, 208 F.3d at 194),
12
involuntary due to the ineffective assistance of her trial counsel. See id. Brown fails to address
this issue. The Court denies Brown's Motion to Dismiss Claims 1,11, and III without prejudice.
The Court will order fiirther briefing onthese three claims.
C.
Claim VI Does Not Constitute aCognizable Basis for Federal Habeas Relief
Because It Does Not Allege that Wilson Is in Custody in Violation of the
Federal Constitution
Finally, the four parts of Claim VI fail to raise errors this Court can address during
federal habeas review. In order to obtain federal habeas relief, at aminimum, apetitioner must
demonstrate that he or she is "in custody in violation ofthe Constitution or laws or treaties ofthe
United States." 28 U.S.C. §2254(a). Thus, "claims of error occurring in astate post-conviction
proceeding cannot serve as abasis for federal habeas corpus relief." Bryant v. Maryland, 848
F.2d 492, 493 (4th Cir. 1988) (citing cases); accord Wright v. Angelone, 151 F.3d 151,159 (4th
Cir. 1998). Such claims provide no basis for federal review because the habeas petitioner's
detention results from the underlying state conviction, not the state collateral proceeding.
Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir, 2008) C'[E]ven where there is some error in
state post-conviction proceedings, apetitioner is not entitled to federal habeas reliefbecause the
assignment oferror relating to those post-conviction proceedings represents an attack on a
proceeding collateral to detention and not to the detention itself." (citing Bryant, 848 F.2d
at 493)).
The four parts of Wilson's sixth claim allege errors in the Supreme Court ofVirginia's
consideration ofher state habeas petition. Wilson's detention results from her underlying state
conviction, not the Virginia Supreme Court's review of her habeas petition. Lawrence, 517 F.3d
at 717; Bryant, 848 F.2d at 493. Wilson's attempts in Claim VI, for instance, to challenge
evidence reviewed by the Supreme Court ofVirginia or findings made by that Court do not
13
contest her underlying state conviction. Therefore, any error inthe Virginia Supreme Court's
post-conviction proceeding provides no basis for federal review. Id. Accordingly, Claim VI
fails to raise a cognizable basis for federal habeas corpus relief. Wright, 151 F.3d at 159. The
Court dismisses Claim VI.
IV. Conclusion
The Court grants inpart and denies in part Brown's Motion to Dismiss. (ECF No. 6.)
The Courtdismisses Claims IV, V, and VI. The Courtwill order further briefing on Claims I, II,
and III.
An appropriate Order shall issue.
JsL
M. Hann£
United States District'Judge
Richmond, Virginia
Date: 9-/0-/5^
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