David Gregory Landeck v David Zook

Filing 42

MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 09/26/2016. Copy mailed to pro se Petitioner.(tjoh, )

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

DAVID GREGORY LANDECK,
Petitioner,
V.

Civil Action No. 3:15CV106

DAVID ZOOK,

Respondent.
MEMORANDUM OPINION

David Gregory Landeck, a Virginia state prisoner proceeding pro se, brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his conviction in the
Circuit Court of the City of Richmond, Virginia ("Circuit Court"). By Memorandum Opinion
and Order entered on January 26, 2016, the Court granted in part and denied without prejudice in

part Respondent's Motion to Dismiss.' See Landeck v. Zook, No. 3:15CV106, 2016 WL 324987,
at *10 (E.D. Va. Jan. 26, 2016). In his § 2254 Petition, Landeck argues entitlement to relief

based upon the following remaining grounds:^
Claim One:

Counsel rendered ineffective assistance "pretrial with respect to motion in
liminer (§ 2254 Pet. 8.)

Claim Three: "Prosecutorial misconduct/plain error ... at trial with respect to multiple
instances of the prosecution's improper rebuttal argument.... {Id. at 1112.) Specifically, the Commonwealth:
(a) & (b) engaged in "[i]mpermissible vouching" by "improperly
express[ing] his opinion of the veracity of a defense witness"
{id. at 12-13); and,

' The Court dismissed Claims Two, Three (d), Four (d) and Six. Landeck, 2016 WL 324987, at
*10.

^The Court omits the emphases in the quotations from Landeck's submissions. Because several
of Landeck's "grounds" encompass allegations of both prosecutorial misconduct and ineffective
assistance of counsel with regard to counsel's response to that conduct, in an abundance of
caution, the Court previously separated these grounds into Claims Three and Four.

(c) "unlawfully manipulated the evidence . . . by materially
misstating ... prior testimony ..." {id. at 13).
Claim Four:

Counsel rendered ineffective assistance by his "failure to challenge or

object to multiple plain errors and to adequately challenge the court's
insufficient remedial instruction regarding counsel's only objection to the
inflammatory language." {Id.) Specifically, counsel failed to object to the
Commonwealth's:

(a) & (b) "[i]mpermissible vouching" {id. at 12-13); and,
(c) "unlawful[] manipulat[ion of] the evidence ... by materially
misstating ... prior testimony ..." {id. at 13).
Claim Five:

Counsel rendered ineffective assistance on appeal. {Id. at 17.)

Respondent has filed supplemental briefing in support of its Motion to Dismiss.

("Supplemental Response," ECF No. 32.) Landeck has responded. (ECF No. 37-1.)^ For the
reasons stated below, the Motion to Dismiss will be GRANTED.
I.

PROCEDURAL HISTORY

Following a jury trial, the Circuit Court convicted Landeck of aggravated malicious

wounding and sentenced him to an active term of ten years of incarceration. Landeck appealed,
and the Court of Appeals of Virginia affirmed his conviction. Landeck v. Commonwealth, 122
S.E.2d 643, 645 (Va. Ct. App. 2012). The Supreme Court of Virginia refused Landeck's

subsequent petition for appeal. Landeck v. Commonwealth, No. 120612, at 1 (Va. Sept. 13,
2012).

On September 9, 2013, Landeck filed a petition for a writ of habeas corpus in the Circuit
Court that did not raise any of the remaining claims of the instant § 2254 Petition. (ECF No. 18^ Landeck files various "Objections to the Memorandum Opinion." (Resp. 2.) Landeck's

objections lack merit. Landeck contends that the Court erred by "fragment[ing] his ineffective
assistance claim into separate grounds of ineffective assistance and prosecutorial misconduct."
{Id. at 6.) Despite Landeck's desire to bind these claims together, a Sixth Amendment claim of
ineffective assistance of counsel and a claim that Landeck's due process rights were violated by

prosecutorial misconduct are separate and distinct claims. Nevertheless, as explained in Part II
below, Landeck defaulted his claims of prosecutorial misconduct. However, Landeck argues
that the ineffective assistance of counsel is the cause for the default of those claims. Thus, in
essence, the Court addresses these claims together.

1.) On November 7, 2013, Landeck filed an amended petition adding Claims One, Three (a)-(c),
Four (a)-(c), and Five of the instant § 2254 Petition. (ECF No. 18-2, at 5, 7-11.) On May 21,
2014, the Circuit Court denied his petition. (ECF No. 18-3, at 19-20.) The Circuit Court denied

Claims One, Three (a)-(c). Four (a)-(c), and Five of the instant petition because they were

untimely filed under Section 8.01-654(A)(2) of the Virginia Code. {See id. at 5.) On February
3, 2015, the Supreme Court of Virginia refused Landeck's petition for appeal. (ECF No. 18-4,

atl.)"
II.

EXHAUSTION AND PROCEDURAL DEFAULT

Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner
must first have "exhausted the remedies available in the courts of the State." 28 U.S.C.

§ 2254(b)(1)(A). State exhaustion "'is rooted in considerations of federal-state comity,"' and in
the 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) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner
must utilize all available state remedies before he 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 has the right under the law of

the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

^ By Memorandum Opinion and Order entered on October 22, 2014, this Court dismissed
Landeck's previously filed § 2254 petition because he had not yet exhausted his claims in state
court. (S'eeECFNo. 18-5.)

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))

(additional internal quotation marks omitted).

"To provide the State with the necessary

'opportunity,' the prisoner must 'fairly present' his 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, 27 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." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides
that "[i]fa state court clearly and expressly bases its dismissal ofa 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 federal habeas claim." Id.

(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also
procedurally defaults claims when the "petitioner 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
exhaustion requirement 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
rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing

cases). 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).

Here, the Circuit Court found that Claims One, Three (a)-(c), Four (a)-(c), and Five of

the instant petition were untimely under Section 8.01-654(A)(2) of the Virginia Code. {See ECF
No. 18-3, at 5.)

Virginia's statute of limitations for habeas actions is an adequate and

independent procedural rule when so applied. See George v. Angelone, 100 F.3d 353, 363-64

(4th Cir. 1996); Sparrow v. Dir. Dep't of Corr., 439 F. Supp. 2d 584, 587-88 (E.D. Va. 2006).
Nevertheless, in Claim Six, instead of raising a new claim, Landeck alleges that the fact that he
lacked counsel to assist him with his state habeas petition serves as the cause for his default of

these claims. The Court explained in its earlier Memorandum Opinion that while it believed that

Claims One, Three (a)-(c), Four (a)-(c), and Five are defaulted, in light of Martinez v. Ryan, 132

S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), the fact that Landeck had no
counsel at his "initial-review collateral proceeding" may establish cause for the procedural
default of these claims. Martinez, 132 S. Ct. at 1320. The Court further indicated that because

of Martinez, judicial economy dictated that the Court address the merits of Claims One, Three

(a)-(c). Four (a)-(c), and Five. See Daniels v. Hinkle, No. 3:11CV675, 2012 WL 2792199, at *1
(E.D. Va. July 9, 2012) (citing Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999)). The

^Under these circumstances, even though the claim has not been fairly presented to the Supreme
Court of Virginia, the exhaustion requirement is "technically met." Hedrick v. True, 443 F.3d
342, 364 (4th Cir. 2006) (citing Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).

Court directed Respondent to file a further response addressing the merits of these remaining
claims. Respondent has done so.

With respect to Claims 3(a), (b), and (c), which allege prosecutorial misconduct and not
ineffective assistance of counsel. Respondent argues that Martinez fails to excuse Landeck's

procedural default of these claims.

The Court agrees that Landeck defaulted these claims

because he did not raise them at trial or on direct appeal. During both of those proceedings,

Landeck was represented by counsel. These claims are defaulted because counsel failed to raise

the purported prosecutorial misconduct during trial or an appeal, not because of any lack of
counsel during the initial collateral review proceeding.

Nevertheless, the Court construes

Landeck to argue that ineffective assistance of counsel is the cause for the default of these
claims. As discussed below in Part III.C.l, counsel was not deficient, and Landeck was not

prejudiced by counsel's actions. Accordingly, ineffective assistance of counsel fails to serve as
the cause for the default of these claims. Claims 3(a), (b), and (c) will be DISMISSED.
III.
A.

PURPORTED INEFFECTIVE ASSISTANCE OF COUNSEL

Standard of Review

To demonstrate ineffective assistance of counsel, a convicted defendant must show, first,

that counsel's representation was deficient and, second, that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient

performance prong of Strickland, the convicted defendant must overcome the "'strong
presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable
professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting
Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "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, 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.
B.

Summary of Landeck's Guilt

Because a summary of Landeck's guilt aids in the resolution of Landeck's claims, the
Court now turns to the evidence presented at trial. The Court of Appeals of Virginia aptly

explained the overwhelming evidence against Landeck as follows:

[T]he evidence at trial established that A.F.[^] intended to walk to a bus stop on
Robinson Street in the City of Richmond at about noon on January 1, 2010.
While A.F. was on the way to the bus stop, A.F. testified, he "was approached" on

foot by appellants near the comer of Davis Avenue and Cary Street. According to
the record in this case, A.F. is five feet four inches tall and 140 pounds, whereas

appellants are significantly larger—Christopher Landeck is six feet two inches tall
and 240 pounds, and David Landeck is six feet four inches tall and 275 pounds.
A.F. testified that David Landeck called A.F. "a name," and then they "got

to arguing." A.F. continued to walk in the direction of the bus stop, but David
Landeck "pulled [a] knife out." A.F. "tried to go around him," but then
Christopher Landeck "got right behind me." This initial confrontation ended
when David Landeck put away the knife. A.F. walked away from appellants and
in the direction of Mule Bam Alley, which connects Davis Avenue and Robinson
Street. According to A.F., appellants told him to "go back and smoke some crack.
Go sell some dmgs. Stuff like that."
A second confrontation between appellants and A.F. occurred moments
later in Mule Bam Alley. Christopher Landeck was driving appellants' vehicle at
that time, with David Landeck in the passenger seat. A.F. testified that
Christopher Landeck shouted from the vehicle, "There go that no good n* *ger
right there." Defense witness D.E., a building contractor, testified that
Christopher Landeck shouted, "[Yjou're still a no good f* *king n* *ger." After
Christopher Landeck uttered those words, according to A.F., appellants "[j]umped
out the tmck and came up towards me." A.F. testified that he then picked up a
wooden board from D.E.'s materials trailer in the alley "to keep [appellants] away
from me." According to A.F.'s trial testimony, Christopher Landeck had also
picked up a wooden board. A.F. testified that he "lunged the board at them to

keep them away from me" and, in so doing, stmck Christopher Landeck with the
board. A.F. then began mnning down the alley, but he stumbled in some

^ We use the initials of the victim and of the witnesses who testified at appellants'
trial, rather than their full names, in an attempt to better protect their privacy.

potholes, and David Landeck caught up with him and grabbed him in a "bear
hug." A.F. testified that he escaped momentarily, but stumbled again, and
Christopher Landeck then hit him with a wooden board.
At trial, A.F. described being overwhelmed and beaten by appellants,
testifying:
[David Landeck] laid on top of me in the street while [Christopher
Landeck] was hitting me with the board. I tried to get up and I
couldn't get up, because he was so heavy laying on me. And he
kept on hitting me. Kept hitting me with the board. Kept hitting
me.

A.F. testified that the beating continued even though he "daze[d] out"
three or four times. Each time he returned to consciousness, appellants would
continue to strike him. A.F. testified that he was beaten in his face, causing him

to bleed significantly. A.F. also testified that he was beaten in his left arm and
shoulder, causing significant and permanent injury to that arm. A.F. spent two

days in the hospital and underwent surgery to insert a plate and pins in his left
arm, which still did not "work right" and had not improved at the time of trial.
In addition. Commonwealth's witness K.D., a tenant of a second-story

apartment overlooking Mule Bam Alley, testified that she observed the
appellants' beating of A.F. occur while he was "in a fetal position, kind of balled
up in the street." K.D. called 9-1-1 during the beating, and her contemporaneous
description of the beating was received into the trial evidence and played for the
jury. At trial, K.D. testified:

[A.F.] was basically trying to protect his head and his face as they
were hitting him with the board, almost like a baseball bat. They
were swinging it as hard as they could, and hitting him in the head.
And you could hear the board hit his head. And as the board
would hit his head, it would splinter into pieces. They were hitting
him that hard. Then one would hit with a board and then the other

one would kind of reposition his body and kick him in the ribs and
punch him....

Referring to a diagram of the area that was shown to the jury, K.D. also testified
that appellants "were kind of walking in and out of Mule Bam Alley, right here,
as they were coming back towards him, and kicking him, and punching him, and
beating him with the board in the head." K.D. testified that she "just knew that
they were going to kill him, just the way they were hitting him," adding that she
had "never seen anything so graphic or horrifying in my life."

Appellants contended at trial that the evidence was insufficient as a matter
of law to support convictions for aggravated malicious wounding because the
evidence failed to prove that they acted with malice. Appellants claimed that they
were provoked by A.F.'s act of striking Christopher Landeck with the wooden
board—and that this provocation by A.F. created a heat of passion within
appellants that negated any malice on their part. Thus, appellants asserted that the
Commonwealth's evidence established, at most, unlawful wounding—a crime for

which malice is not a required element. However, the trial court mled that the

presence of malice was an issue for the jury to decide, and the jury convicted
appellants of aggravated malicious wounding.
Landeckv. Commonwealth, 722 S.E.2d 643, 645-46 (Va. Ct. App. 2012) (footnote number

altered from original; other alterations in original).
C.

Analysis
1.

Claim Four

In Claim Four, Landeck argues that counsel rendered ineffective assistance by "fail[ing]

to challenge or object to multiple plain errors" made by the prosecutor in his rebuttal argument

during closing. (§ 2254 Pet. 12.) Specifically, Landeck faults counsel for not objecting to the

prosecutor "improperly express[ing] his personal opinion with respect to the veracity of[D.E.^],
a key defense witness" {id.\ stating that "[t]he Commonwealth doesn't put on liars" {id. at 13

(citation omitted)), and "unlawfully manipulating the evidence before the jury by materially

misstating key defense witness [D.E]'s prior testimony . . ." {id.). Counsel reasonably eschewed
objecting to the prosecutor's rebuttal argument.

During trial, Landeck called D.E. to testify in his defense. D.E. testified that he observed
A.F, the victim, walking down the alley "grumbling a little bit" and then stating that he did not

"have to put up with that sh*t." (Oct. 7, 2010 Tr. 280-81.) D.E. testified that the Landecks
drove up, "had some words with" A.F., and then the A.F. "grabbed the board offofmy trailer ...
and went right through the window and hit [Christopher Landeck] in the face. Very

aggressively." (Oct. 7, 2010 Tr. 281-82.) D.E. testified that the victim then taunted the
Landecks. (Oct. 7, 2010 Tr. 283.) D.E. testified that he "continued to load his trailer," because
he did not want to get involved, stayed in the alley, and that he "never saw anybody get struck
after that, because I basically ignored it." (Oct. 7, 2010 Tr. 293, 295.)

^ Consistent with the state court, the Court employs the initials for both the witnesses and the
victim in this Memorandum Opinion.

On cross-examination, the prosecutor asked D.E. about inconsistent statements, including
that in his 911 call he stated that there were "two white guys beating up a black guy," but that his

testimony at trial was that he didn't see the Landecks strike the victim. (Oct. 7, 2010 Tr. 299300.)

During Landeck's closing arguments, defense counsel argued the following:
Here is one of those things that I find a little strange, a little strange and you really
need to take a look at it. The Commonwealth knew of [D.E]'s existence early on
in this case. They questioned him about their conversations. [D.E.] told you
about the conversations. And if you need to wonder what happened in the alley,
who is the one witness with no dog in the fight, who is close enough to see

everything that happened. [D.E.] Why is the Commonwealth hiding him fi-om
you in their case? Why didn't they put him up there early on to say, look, here's
what happened? The reason is [D.E.] contradicts everything that [the victim] has
to tell you about what happened at that car.

(Oct. 7, 2010 Tr. 363-64.) In the Commonwealth's rebuttal, the prosecutor stated the following
in response:

I have a few points that I want to address and then I'm going to let you go.
The issue with [D.E.]. It was brought up, why didn't the Commonwealth put on

[D.E.] to tell what happened? Because [D.E.] either couldn't remember or he lied
to you. Those are the reasons. The Commonwealth doesn't put on liars. And we
don't, because we want the truth to come out. [D.E.] had to sit here and admit
that just a few days ago he told me, I didn't come out into the street. I was never
in the street. Then he said, oh. There I am in the pictures. I guess I did come out
into the street.

[D.E.] also said and admitted here, I have had some trouble with blacks in
the area. No bias. That is what they want you to believe, that [D.E.] is not biased.
I have had some trouble with the blacks in the area.

(Oct. 7, 2010 Tr. 391-92.)

In Claim Four (a), Landeck first faults counsel for failing to object to the prosecutor

"improperly express[ing] his personal opinion with respect to the veracity of [D.E.]. (§ 2254
Pet. 12.) Similarly in Claim Four (b), Landeck faults counsel for not objecting to the statement

that "[t]he Commonwealth doesn't put on liars." {Id. at 13 (citation omitted).) As discussed

10

below, Landeck fails to demonstrate either deficiency of counsel or resulting prejudice from
counsel's failure to object to the prosecutor's remarks.

It is "improper for a prosecutor to directly express his opinion as to the veracity of a

witness." United States v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997) (quoting United States v.

Moore, 11 F.3d 475, 481 (4th Cir. 1993)). "Nonetheless, comments made by a prosecutor during

closing arguments will not warrant a new trial unless they 'so infected the trial with unfairness as
to make the resulting conviction a denial of due process.'" Id. (quoting United States v.

Francisco, 35 F.3d 116, 120 (4th Cir. 1994)). A prosecutor's "statements or conduct must be

viewed in context; only by so doing can it be determined whether the prosecutor's conduct
affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 (1985). "Where the

record justifies the inference that a witness has lied, prosecutors do not cross the line into

impermissible argument in calling the witness a iiar,' provided, of course, that the prosecutor
does not suggest that this is a personal opinion or that it is based on extra-record government
information." Moore v. United States, 934 F. Supp. 724, 730 (E.D. Va. 1996). Moreover, "[i]t is

well-settled that, when the defense makes comments in closing that invite the [prosecutor] to

respond, the prosecution, in rebuttal, may enter into areas which would otherwise constitute
improper argument." Schmitt v. True, No. Civ.A. 3:02CV953, 2005 WL 2245235, at *2 (citing
United States v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991); United States v. Harrison, 716 F.2d

1050, 1052-53 (4th Cir. 1983)); see Young, 470 U.S. at 11. To assess whether a prosecutor's
remarks are improper

the reviewing court must not only weigh the impact of the prosecutor's remarks,
but must also take into account defense counsel's opening salvo. Thus the import

of the evaluation has been that if the prosecutor's remarks were "invited," and did
no more than respond substantially in order to "right the scale," such comments
would not warrant reversing a conviction.

11

YoungAl^ U.S. at 12-13.

Here, defense counsel questioned why the Commonwealth had not called D.E. as a
witness, and stated that the Commonwealth intentionally "hid[] him from you in their case"

because his testimony conflicted with the victim's testimony. (Oct. 7, 2010 Tr. 363-64.) In his

response, the prosecutor explained the reasons why the Commonwealth had not called D.E.—
because he either could not remember the events or he had not told the truth. (Oct. 7, 2010 Tr.

391.) While the prosecutor's suggestion that D.E. may have lied to the jury may have been

improper standing alone, the argument about the veracity of D.E.'s testimony was invited by
defense counsel's initial remarks about D.E.'s absence in the Commonwealth's case.

The

prosecutor's comments were a reasonable response to the defense argument that the
Commonwealth intentionally "hid" a key witness. These rebuttal comments "did no more than

respond substantially in order to right the scale" when viewed in concert with defense counsel's
assertion that the Commonwealth intentionally "hid" evidence from thejury. Young, 470 U.S. at
12-13.

Moreover, in the context of a Sixth Amendment ineffective assistance claim, "the

question [the Court must] ask is not whether the prosecutor's comments were proper, but
whether they were so improper that counsel's only defensible choice was to interrupt those
comments with an objection." Schmitt, 2005 WL 2245235, at *3 (quoting Bussard v. Lockhart,
32 F.3d 322, 324 (8th Cir. 1994)); see Young, 470 U.S. at 13. Counsel reasonably eschewed

objecting to these comments. Even ifthe prosecutor's comments were improper, they were brief
and isolated, and were not so egregious in light of D.E.'s inconsistent testimony as to warrant an

objection. To the contrary, noting an objection would have drawn the jury's attention to the
comments. See Moore, 934 F. Supp. at 727 (holding that counsel's failure to objectto prosecutor

12

calling witness a liar was "a reasonable trial tactic" and explaining that "all experienced

practitioners recognize that not infrequently, it is better to remain silent than to draw attention to
a matter by offering an objection").

Landeck also fails to demonstrate any prejudice from counsel's failure to object to the

prosecutor's suggestion that D.E. may have lied and to the statement that "the Commonwealth

doesn't put on liars." (Oct. 7, 2010 Tr. 391.) Landeck simply fails to demonstrate that there is a
reasonable probability that an objection by counsel would have altered the outcome of his trial.
Overwhelming evidence existed of Landeck's guilt of aggravated malicious wounding. All of
the evidence established that Landeck pursued the victim into the alley and then out onto the
street. Both the victim and a witness, K.D., testified that the Landeck brothers brutally beat the

victim with boards, kicked him, and punched him while he was lying in the street in the fetal

position and was in and out ofconsciousness. The victim had extensive and permanent injuries.
Landeck fails to demonstrate that any objection to the prosecutor's remarks would have altered
the outcome of the trial. Because Landeck fails to demonstrate any deficiency of counsel or

resulting prejudice. Claims Four (a) and Four (b) will be DISMISSED.
In Claim Four (c), Landeck faults counsel for failing to object to the prosecutor

"improperly and unlawfully manipulat[ing] the evidence before the jury by materially misstating
key defense witness [D.E.]'s prior testimony in its rebuttal summation." (§ 2254 Pet. 13.)
Specifically, Landeck believes that the prosecutor misstated D.E.'s testimony about whether or
not D.E. was racially biased.

During trial, the following exchange occurred between the

prosecutor and D.E.:

Q

Did you tell me that you had some problems with blacks in the area?

A

No. I don't recall telling you that.

13

Q

You don't remember that?

A

No sir.

MR. MARTIN: Thank you

(Oct. 7, 2010 Tr. 303.) Landeck interprets this exchange as "[D.E.] den[ying] ever having said
that he had 'had some trouble with the blacks in the area.'" (§ 2254 Pet. 14 (emphasis omitted).)

In his rebuttal argument, the prosecutor stated: "[D.E.] also said and admitted here, I
have had some trouble with blacks in the area. No bias. That is what they want you to believe,

that [D.E.] is not biased. I have had some trouble with the blacks in the area." (Oct. 7, 2010 Tr.

392.) Landeck argues that D.E. "never admitted to saying that he had previously experienced

problems with blacks as counsel for the Commonwealth stated in summation" and that "the
evidence from the record itself completely refutes the Commonwealth's statement." (§ 2254 Pet.

14.) While Landeck is correct that D.E. never admitted that he had affirmatively told the

prosecutor that he "had some problems with blacks in the area," D.E.'s statement can also not be
read as Landeck urges here. D.E. did not deny making the statement to the prosecutor. At most,
D.E. stated that he could not recall telling the prosecutor whether he had previously experienced
problems.

Once again, Landeck fails to demonstrate any deficiency of counsel or resulting

prejudice. "The government may attempt to persuade the jury to draw suggested inferences
unfavorable to the defense, as long as the prosecutor's own opinion ... is not urged on thejury."
United States v. Smith, 982 F.2d 681, 683 (1st Cir. 1993) (citing United States v. Mount, 896

F.2d 612, 625 (1st Cir. 1990)). The prosecutor's statement did not mislead the jury here. The

prosecutor was permitted to try to persuade the jury that D.E. had a pre-existing bias that could
possibly provide him with a reason to provide an inaccurate account of what he observed. The

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jury heard D.E. testify that he did not recall telling the prosecutor that he "had some problems
with the blacks in the area." (Oct. 7, 2010 Tr. 303.) The prosecutor in his closing remarks

incorrectly stated that D.E. "admitted here,. . . that [he had] some trouble with the blacks in the
area." (Oct. 7, 2010 Tr. 392 (emphasis added).) Once again, while the statement was not exactly

what D.E. stated during trial, counsel could have reasonably perceived that objecting to this
comment would have little to no impact on the outcome of trial or perhaps could have

highlighted a potential bias to the jury.

Despite Landeck's characterization of D.E. as a "key defense witness" (§ 2254 Pet. 14),
counsel could have reasonably perceived that D.E. had not been a particularly compelling
defense witness. Landeck's defense theory was that he acted in self-defense. D.E. testified that

after observing the victim hit Landeck's brother with a board, he "continued to load his trailer,"
because he did not want to get involved, stayed in the alley, and that he "never saw anybody get
struck after that, because I basically ignored it." (Oct. 7, 2010 Tr. 293.) After D.E.'s testimony,

counsel reasonably could have determined that D.E. failed to bolster significantly the defense

theory that the victim was the aggressor. Counsel could have reasonably perceived that while the

prosecutor's statement was not entirely accurate, it simply did not warrant an objection inlight of
D.E.'s inconsistent testimony. Thus, counsel was not deficient for failing to object to the
prosecutor's statement.

Moreover, Landeck fails to demonstrate that counsel's lack of objection to the

prosecutor's statement resulted in any prejudice to him. As previously explained, overwhelming
evidence existed of Landeck's guilt. The evidence established that the hulking Landeck brothers

pursued the substantially smaller victim into the alley, the victim picked up a board and struck
Christopher Landeck, and then both brothers pursued the victim again out to the street where

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they brutally beat, kicked, and punched the victim. Thus, Landeck fails to demonstrate that but
for counsel's failure to object, the outcome of the trial would have been different. Accordingly,
Claim Four (c) will be DISMISSED.
2.

Claim One

In Claim One, Landeck argues that counsel rendered ineffective assistance "pretrial with

respect to motion in liminey (§ 2254 Pet. 8.) Prior to trial, counsel filed a motion in limine
"seeking to prevent the Commonwealth 'from making any direct or indirect reference to any
racial slurs, epithets or other racially insensitive remarks made by any defendant in this case.'"

{Id. (citation omitted).) Counsel argued that references to these statements would be prejudicial
and could improperly influence the jury. According to Landeck, "[cjounsel's motion in limine
was frivolous and a strategic blunder" because the Circuit Court granted the motion and excluded

certain racial slurs made by both the victim and defendants, but not another epithet made laterby

Christopher Landeck. (Id at 8-9.) Landeck complains that "[t]he net effect of counsel's

improvident and ill-advised motion . . . was to allow in only a single statement which consisted
of a vicious racial epithet made by petitioner's brother," which Landeck claims "was actually in

response to a racial slur uttered by the victim." (Id. at 9.) As discussed below, Landeck fails to
demonstrate any deficiency of counsel or resulting prejudice.

Counsel explains that he was "indeed aware that the Commonwealth intended to turn the
trial into a racial attack rather than, as we contended, one of self-defense. In order to prevent

this, we had to attempt to remove the element of race from the trial. This was the purpose of the
Motion in Limine." (ECF No. 32-2, at 2.) Counsel discussed this strategy with Landeck who

never lodged an objection to counsel filing the motion in limine. {Id.) Contrary to Landeck's
contention, counsel's attempt to remove racial slurs from the trial was sound trial strategy.

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Strickland, 466 U.S. at 691 (explaining that "strategic choices made after thorough investigation

... are virtually unchallengeable"). The Circuit Court's exclusion of some, but not all, of the
racially charged statements made by the parties fails to render counsel's performance deficient.

Moreover, as previously explained, in light of the overwhelming evidence of Landeck's

guilt of aggravated malicious wounding, he fails to demonstrate any prejudice from counsel's
actions. Accordingly, Claim One will be DISMISSED.
IV.

PURPORTED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

"In order to establish a claim that appellate counsel was ineffective for failing to pursue a

claim on direct appeal, the applicant must normally demonstrate" that appellate counsel

performed deficiently and that a reasonable probability of a different result exists. Bell v. Jarvis,
236 F.3d 149, 164 (4th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 688, 694

(1984)).

Counsel had no obligation to assert all non-frivolous issues on appeal.

Rather,

"'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v.
Murray, All U.S. 527, 536 (1986) (quoting

v. Barnes, 463 U.S. 745, 751-52 (1983)). A

presumption exists that appellate counsel "'decided which issues were most likely to afford relief
on appeal.'" Bell, 236 F.3d at 164 (quoting Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir.
1993)). "'[0]nly when ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.'" Id. (quoting Smith v. Robbins,
528 U.S. 259, 288 (2000)). As explained below, Landeck fails to demonstrate that appellate
counsel rendered ineffective assistance.

In Claim Five, Landeck faults appellate counsel for failing "to identify and raise issues of

plain error under the ends of justice exception." (§ 2254 Pet. 17.) Landeck claims that appellate

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counsel should have raised the alleged prosecutorial misconduct claims contained in Claim Three

on appeal. Landeck admits that trial counsel failed to object to these remarks during trial, and
these challenges were not preserved for appeal; however, he suggests that "appellate counsel
should have addressed the issues under the 'ends of justice' exception in Supreme Court Rule
5:25." (M)

On appeal, counsel argued that

the trial court erred when it: (1) admitted evidence of a racial epithet attributed to

Christopher Landeck; (2) denied appellants' motion for a mistrial following the
prosecution's rebuttal argument to the jury; (3) overruled appellants' objection to
the Commonwealth's proposed jury instruction concerning the heat of passion;
and (4) denied appellants' motion to set aside the jury's guilty verdicts based on
what appellants claim is insufficient evidence to prove malice.
Landeck v. Commonwealth, 722 S.E.2d 643, 645 (Va. Ct. App. 2012).

Landeck fails to

demonstrate that the challenges to the prosecutor's comments about [D.E]'s testimony that he

urges here are clearly stronger than the claims appellate counsel advanced on appeal.
Additionally, counsel reasonably eschewed raising an appellate challenge to the prosecutor's
remarks during the rebuttal argument at the end of trial.

The "ends of justice" exception allows a Virginia appellate court to examine a matter not

properly preserved for appeal. See Brown v. Commonwealth, 380 S.E.2d 8, 10 (Va. Ct. App.
1989) (citation omitted) (explaining that because errors can usually be corrected in the trial court,
"we will notice error for which there has been no timely objection only when necessary to satisfy

the ends of justice"). "The ends of justice exception is narrow and is to be used sparingly . .. ."
Id. at 11. To satisfy that exception, a petitioner must demonstrate that "there was error in the

judgment appealed from and application of the ends of justice exception is necessary to avoid
grave injustice." Ali v. Commonwealth, 701 S.E.2d 64, 68 (Va. 2010) (citing Charles v.
Commonwealth, 613 S.E.2d 432, 435 (Va. 2005); Redman v. Commonwealth, 487 S.E.2d 269
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272-73 (1997)); see Redman, 487 S.E.2d at 271 (explaining that "[i]n order to avail oneself of
the exception, a defendant must affirmatively show that a miscarriage ofjustice has occurred, not

that a miscarriage might have occurred" and that "the trial error must be clear, substantial and
material"). Appellate counsel reasonably perceived that this was not the "rare case" where the

ends of justice exception should be invoked. Jiminez v. Commonwealth, 402 S.E.2d 678, 680
(Va. 1991). Any argument that the ends ofjustice required appellate review of Landeck's claims

of prosecutorial misconduct clearly was not the strongest issue to challenge on appeal. As

previously explained, to the extent the prosecutor's comments were even improper, an objection
to these remarks would not have resulted in Landeck's acquittal.

Appellate counsel wisely

eschewed advancing the unpreserved claims of prosecutorial misconduct in Claim Three, and
instead, raised four claims on appeal that were preserved at trial and were most likely to be
successful. Landeck fails to demonstrate deficiency of appellate counsel or resulting prejudice.
Accordingly, Claim Five will be DISMISSED.
V.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss will be GRANTED. The

§ 2254 Petition will be DENIED. Landeck's Motion for Appointment of Counsel (ECF No. 40)
will be DENIED. Landeck's claims and this action will be DISMISSED.

A certificate of

appealability will be DENIED.

An appropriate Final Order shall issue.
/s/

Roderick C. Young
United States Magistrate Judge

Date: September 72016
Richmond, Virginia

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