Hawkins v. Davis

Filing 9

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 6/10/15. Copy sent: Yes (tdai, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

JAMES WILLIE HAWKINS, JR.,
Petitioner,
Civil Action No. 3:15-CV-145

v.
KEITH W. DAVIS,
Respondent.

MEMORANDUM OPINION
THIS MATTER is before the Court on a Writ of Habeas Corpus for Prisoner in State
Custody (“Petition”) (ECF No. 1) filed by Petitioner James Willie Hawkins, Jr. (“Hawkins” or
“Petitioner”) and a Motion to Dismiss (ECF No. 5) filed by Respondent Keith W. Davis (“Davis”
or “Respondent”), Director of the Virginia Department of Corrections.1 In the Petition, Hawkins
challenges his convictions for abduction; conspiracy to commit abduction; malicious wounding;
conspiracy to commit malicious wounding; and use of a firearm in the commission of a felony.
After being convicted, Hawkins was sentenced to an aggregate sentence of thirty-six years’
imprisonment. For the reasons set forth below, the Court GRANTS the Motion to Dismiss and
DISMISSES the Petition.
I.

BACKGROUND
a. Factual History
On June 12, 2012, Latoya Hawkins (“Ms. Hawkins”) and her boyfriend, Zack Bradford

(“Bradford”) were at Ms. Hawkins’ home in Virginia Beach. Ms. Hawkins was married to the

Hawkins mistakenly named Davis as respondent, presumably because Davis was at one time the Warden
of Sussex I State Prison, where Hawkins is held. (Mot. to Dismiss at 1 n.1.) However, Harold W. Clarke
(“Clarke”) in his official capacity as Director of the Virginia Department of Corrections, is the person who
has current custody over Davis, and is the proper party respondent. Va. Code §§ 53.1-20, 19.2-310.
Therefore, the Court GRANTS the Director of the Virginia Department of Corrections request to substitute
Clarke as party respondent in this matter.

1

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Petitioner during the relevant time period, but the couple was separated. Ms. Hawkins had a
protective order against Petitioner.
Beginning around 5:00 p.m. on June 12, Petitioner repeatedly called Ms. Hawkins and
left threatening messages. That same afternoon, Jimmy Bufkin (“Bufkin”), an acquaintance of
Petitioner, paid a visit to Ms. Hawkins’ home. Using racial slurs and abusive language, Bufkin
told Ms. Hawkins that Petitioner was on his way to the home and she should ensure Bradford
was not present when Petitioner arrived.
Around 6:00 p.m., Bradford stepped out onto Ms. Hawkins’ front porch to take a
telephone call. At approximately the same time, Petitioner arrived, carrying a gun. Petitioner
approached Bradford and said, “Come here,” while pointing the gun at him. He then forced
Bradford at gunpoint to walk through the neighborhood towards a green pickup truck Petitioner
had borrowed from a friend. An individual wearing a ski mask was in the truck’s driver seat.
When Petitioner told Bradford to get in the truck, Bradford refused and attempted to escape. As
Bradford tried to get away, Petitioner shot him multiple times. Bradford survived the shooting.
b. Procedural History
i. Conviction and Direct Appeal
On August 20, 2012, Petitioner was indicted by the grand jury of the Commonwealth of
Virginia, in the Circuit Court of Virginia Beach (“Virginia Beach Circuit Court”). He was charged
with malicious wounding, abduction, conspiracy to commit abduction, conspiracy to commit
malicious wounding, and use of a firearm in the commission of a felony. Petitioner pleaded not
guilty and proceeded to a jury trial on January 8, 2013. The jury convicted Petitioner, and on
July 3, 2013, the trial court entered final judgment and sentenced Petitioner to an aggregate
sentence of thirty-six years’ imprisonment. Petitioner sought a direct appeal in the Court of
Appeals of Virginia on the following grounds:
(1) The Commonwealth failed to present sufficient evidence establishing the
defendant and co-defendant formed an express agreement to commit the
crimes of abduction and malicious wounding.
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(2) The Commonwealth failed to present sufficient evidence establishing the
element of “malice” but instead established the defendant acted in the “heat
of passion” and thus the Commonwealth failed to prove the defendant
maliciously wounded Bradford.
(3) The Commonwealth failed to offer sufficient evidence of force or that any
movement of Bradford from one location to another was other than incidental
to the unlawful wounding rendering the evidence legally insufficient to
convict him of abduction.
By Order dated December 30, 2013, the Court of Appeals of Virginia held that it would not
consider the sufficiency challenges because Petitioner had not lodged a contemporaneous
objection at trial, as required by Rule 5A:18 of the Rules of the Supreme Court of Virginia. (Br. in
Supp. of Mot. to Dismiss, Ex. 1, attachment C.) Petitioner then appealed to the Supreme Court of
Virginia, but the Supreme Court dismissed the petition on May 9, 2014 because the assignments
of error did not address the Court of Appeals’ ruling. (Id. at attachment D.)
ii. State and Federal Habeas Petitions
On May 15, 2014, Petitioner filed a timely petition for a writ of habeas corpus in the
Supreme Court of Virginia. He alleged five grounds in support of his petition:
(1) The Court of Appeals erred in ruling the Commonwealth presented sufficient
evidence to establish that petitioner and his co-defendant formed an express
agreement to abduct and maliciously wound the victim;
(2) The Court of Appeals erred in ruling the Commonwealth presented sufficient
evidence to prove malice because the evidence showed petitioner acted in the
heat of passion;
(3) The Court of Appeals erred in ruling the Commonwealth presented sufficient
evidence to prove the element of force required to convict petitioner of abduction
and that any movement of the victim was not incidental to the “unlawful
wounding”;
(4) The trial court abused its discretion in sentencing petitioner to an active term of
thirty-six years’ imprisonment where he acted in the heat of passion, and that the
sentence was disproportionate to his crimes;
(5) The petitioner was denied the effective assistance of counsel when trial counsel
solicited perjured testimony for use in petitioner’s case, but then abandoned the
plan and “gave [petitioner] up to [an Assistant Commonwealth’s Attorney] to
execute [petitioner] fo[r] nothing.” The petitioner alleged counsel did this

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because petitioner’s case was “high profile” and counsel needed votes from his
colleagues to win an election for Commonwealth’s Attorney.
On November 18, 2014, the Supreme Court of Virginia granted respondent’s motion to
dismiss the habeas petition. The Court concluded the first three grounds were barred under
Brooks v. Peyton, 210 Va. 318 (1969), because a habeas petition cannot be used as a substitute
for an appeal. Further, the Court held ground four was barred by the rule in Slayton v.
Parrigan, 215 Va. 27 (1974), as it could have been raised during the direct appeal process, but
Petitioner had failed to do so. Finally, the Court held that ground five satisfied neither the
performance nor prejudice prongs of the two-part test enunciated in Strickland v. Washington,
466 U.S. 668, 687 (1984).
On March 11, 2015, Petitioner filed the instant Petition, alleging four primary grounds
for relief:
(1) The petitioner received ineffective assistance of trial counsel in violation of the
Sixth Amendment to the United States Constitution when:
A. Counsel failed to properly conduct adequate pre-trial and trial
investigation, ultimately leading counsel to fail to properly preserve
several essential evidentiary issues for review.
B. Counsel was ineffective for failing to terminate his representation of
the Petitioner as counsel was running for a political office which not only
distracted counsel from giving the Petitioner’s case the attention required,
but created a conflict of interest with counsel’s position as the Petitioner’s
defense attorney.
(2) The Petitioner was unconstitutionally denied due process under the Fifth
and Fourteenth Amendments of the United States Constitution when he was
convicted based upon evidence insufficient to support a finding of guilt beyond a
reasonable doubt.
A. The Commonwealth failed to prove the Petitioner and co-defendant
formed an express agreement to commit the crimes of abduction and
malicious wounding beyond a reasonable doubt.
B. The Commonwealth failed to present sufficient evidence establishing
the element of “Malice” but instead established the defendant acted in the
“Heat of Passion” and thus the Commonwealth failed to prove the
defendant maliciously wounded Bradford.

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C. The evidence was legally insufficient to convict Petitioner of abduction
because the Commonwealth failed to offer sufficient evidence of force or
prove any movement of Bradford from one location to another was other
than incidental to the unlawful wounding.
(3) The Petitioner received ineffective assistance of counsel in violation of the
Sixth Amendment to the United States Constitution when appellate counsel
failed to properly investigate the Petitioner’s case in order to determine viable
issues on appeal, and ultimately counsel only raised issues that had not been
preserved for appellate review in the trial court record.
(4) The prosecutor engaged in misconduct that ultimately prejudiced the
petitioner.
(Mem. in Supp. of Pet. at 2.) Petitioner further requests an evidentiary hearing on these matters.
(Id.) On May 14, 2015, Respondent filed a response to the Petition and a Motion to Dismiss
(ECF Nos. 5, 6). Petitioner subsequently filed an opposition to the Motion to Dismiss on May 27,
2015 (“Reply Mem.”) (ECF No. 8). This matter is now ripe for review.
II.

LEGAL STANDARDS
a. The AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal

court may review a petition for a writ of habeas corpus by a person serving a sentence imposed
by a state court only on grounds that the person is being held in custody “in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The federal court may
grant the petition on a claim decided on its merits by the state court only if that decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “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)(2).
A decision is “contrary to” federal law if it resolves a question of law in a way that
contradicts the relevant Supreme Court precedent, or if it yields a result that differs from the
outcome of a Supreme Court case involving “materially indistinguishable” facts. Williams v.
Taylor, 529 U.S. 362, 405–06 (2000). A decision applies federal law unreasonably if it is based
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on the correct legal principle but applies that principle unreasonably to the facts of a case. Id. at
413. Whether a decision is reasonable is determined by an objective, not subjective, test. Id. at
409–10. The question is not “whether a federal court believes the state court’s determination
was incorrect but whether that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
Finally, a federal court is to presume the correctness of the state court’s finding of facts and not
find an “unreasonable determination” of the facts, unless the petitioner rebuts the presumption
by clear and convincing evidence. Id. at 473–74. Thus, under section 2254(d), if a state court
applies the correct legal rule to the facts of a case in a reasonable way, or makes factual findings
reasonably based on the evidence presented, a federal court does not have the power to grant a
writ of habeas corpus, even if the federal court would have applied the rule differently. Williams,
529 U.S. at 406–08.
b. Motion to Dismiss
The familiar standards of Federal Rule of Civil Procedure 12(b)(6) apply to a
government’s motion to dismiss a section 2254 petition. Walker v. Kelly, 589 F.3d 127, 138 (4th
Cir. 2009). A motion to dismiss therefore “tests the legal sufficiency of the petition, requiring
the federal habeas court to assume all facts pleaded by the § 2254 petitioner to be true.” Id. at
139 (internal quotation marks omitted) (quoting Wolfe v. Johnson, 565 F.3d 140, 169 (4th Cir.
2009)). The court must consider “the face of the petition and any attached exhibits” in
determining whether a section 2254 petition states a claim for relief. Id. (quoting Wolfe, 565
F.3d at 169).
To survive a motion to dismiss, a complaint must contain sufficient factual information
“to state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 544,
570 (2007). “Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 663–64 (2009). A complaint achieves facial
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plausibility when it contains sufficient factual allegations supporting the reasonable inference
that the alleged violations occurred. See Twombly, 550 U.S. at 556; see also Iqbal, 556 U.S. at
678.
III.

DISCUSSION
In reviewing Petitioner’s present § 2254 Petition and Respondent’s Motion to Dismiss,

the Court must first determine whether Petitioner has exhausted his claims in state court and
whether those claims are barred by procedural default. Brown v. Pixley, No. 1:12cv293, 2012
WL 6555009, at *2 (E.D. Va. Dec. 12, 2012).
(1) Claims Raised in the Virginia Supreme Court (Claim 2)
Beginning with the latter doctrine of procedural default, “[a] federal claim is deemed
procedurally defaulted where ‘a state court has declined to consider the claim’s merits on the
basis of an adequate and independent state procedural rule.’” Hedrick v. True, 443 F.3d 342,
359 (4th Cir. 2006) (quoting Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)). A state
court’s determination “that a claim has been procedurally defaulted, . . . is entitled to a
presumption of correctness on federal habeas corpus review, provided” that: (1) the state court
explicitly relied on the procedural ground in denying petitioner relief; and (2) the procedural
rule is an independent and adequate2 state ground for denying relief. Brown, 2012 WL 6555009,
at *2. When these two requirements are satisfied, federal review of the claims is barred unless
petitioner can show cause3 and prejudice4 for the default or a fundamental miscarriage of

2

An adequate rule is one that is “regularly or consistently applied by the state court,” and a rule is
independent “if it does not depend[] on a federal constitutional ruling.” Hedrick, 443 F.3d at 359
(citations and internal quotation marks omitted).
3 To establish “cause,” a petitioner “must establish that some objective factor external to the defense
impeded counsel’s efforts to raise the claim in state court at the appropriate time.” Breard v. Pruett, 134
F.3d 615, 620 (4th Cir. 1998) (citations and internal quotation marks omitted). “Examples of these
external factors are situations where the factual or legal basis for a claim is not reasonably available to
counsel or where some interference by officials makes compliance with the procedural rule
impracticable.” McNeill v. Polk, 476 F.3d 206, 214 (4th Cir. 2007).
4
“To show prejudice, a petitioner must show that the alleged constitutional violation worked to his actual
and substantial disadvantage, infecting his entire trial with error of a constitutional magnitude.” Winston,
624 F. Supp. 2d at 492 (citation omitted).

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justice5. Winston v. Kelly, 624 F. Supp. 2d 478, 491–92 (W.D. Va. 2008) (citing Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). 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).
Petitioner’s insufficiency of the evidence allegations in his second claim for relief were
previously presented to the Supreme Court of Virginia by way of a petition for appeal. (Br. in
Supp. of Mot. to Dismiss, Ex. 1, attachment F.) The Supreme Court of Virginia dismissed the
petition pursuant to Virginia Supreme Court Rule 5:17(c)(1)(iii)6, finding “that the assignments
of error in the petition for appeal are insufficient as they do not address the ruling of the Court
of Appeals.” (Id. at attachment D.) The Fourth Circuit has consistently held that Virginia
Supreme Court Rule 5:17 is an independent and adequate state ground. Hedrick, 443 F.3d at
360–63; Yeatts v. Angelone, 166 F.3d 255, 264–65 (4th Cir. 1999); Mueller v. Angelone, 181
F.3d 557 (4th Cir. 1999). Therefore, because the Virginia Supreme Court declined to consider the
claims’ merits on the basis of an adequate and independent state procedural rule, the present
review of Petitioner’s federal claims is barred unless Petitioner can show cause and actual
prejudice, or a miscarriage of justice. See Winston, 624 F. Supp. 2d 491 (citing Coleman, 501
U.S. at 750). However, Petitioner satisfies none of the above.
In his response to Respondent’s Motion to Dismiss, Petitioner inexplicably argues that

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A fundamental miscarriage of justice, excusing procedural default, occurs where “a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Sharpe v. Bell, 593 F.3d
372, 377 (4th Cir. 2010) (internal quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478,
496 (1986)).
6
Virginia Supreme Court Rule 5:17(c) requires that a petition for appeal include “assignments of error”
and specifically notes,
An assignment of error that does not address the findings or rulings in the trial court or
other tribunal from which an appeal is taken, or which merely states that the judgment or
award is contrary to the law and the evidence, is not sufficient. An assignment of error in
an appeal from the Court of Appeals to the Supreme Court which recites that "the trial
court erred" and specifies the errors in the trial court, will be sufficient so long as the
Court of Appeals ruled upon the specific merits of the alleged trial court error and the
error assigned in this Court is identical to that assigned in the Court of Appeals. If the
assignments of error are insufficient, the petition for appeal shall be dismissed.
Va. Sup. Ct. R. 5:17(c)(1)(iii).

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his “claims regarding ineffective assistance of counsel contain the Petitioner’s sufficiency
arguments because the Petitioner’s ineffective assistance claim is premised upon the fact that
trial and appellate counsel failed to actually preserve the most integral issues from the
Petitioner’s trial, for appellate review, via trial court objection.” (Reply Mem. at 3.) He asserts
that his “claim of ineffective assistance of trial and appellate counsel reflects the fact that the
Petitioner’s valid arguments concerning the sufficiency of the evidence of conviction were never
properly assessed and that is purely because of counsel’s prior ineffectiveness.” (Id. at 3–4.)
Based on the foregoing, Petitioner concludes that cause is shown.
Interpreting Petitioner’s claims liberally, the Court assumes that Petitioner is attempting
to argue that “[a] valid nondefaulted ineffective assistance of counsel claim can constitute cause
and prejudice and, thereby, excuse a procedural default.” Winston, 624 F. Supp. 2d at 492
(citation omitted); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (“[I]neffective
assistance adequate to establish cause for the procedural default of some other constitutional
claim is itself an independent constitutional claim.”). Importantly, however, the ineffective
assistance of counsel claim “must be presented to the state courts as an independent claim
before it may be used to establish cause for a procedural default.” Edwards, 529 U.S. at 452
(citation and internal quotation marks omitted); see also Murray v. Carrier, 477 U.S. 478, 488–
89 (1986). As explained below, Petitioner’s ineffective assistance of counsel claims were not
raised in the state courts and thus such claims cannot provide a basis for cause. Because no
cause exists, the Court need not discuss the issue of prejudice. Breard v. Pruett, 134 F.3d 615,
620 (4th Cir. 1998).
Finally, Petitioner does not even attempt to claim that he is actually innocent, and thus
he cannot demonstrate a miscarriage of justice. See Sharpe, 593 F.3d at 377.
For those reasons, Petitioner’s Claim 2 is procedurally defaulted.
//
//
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(2) Claims Not Raised in the Virginia Supreme Court (Claims 1, 3 and 4)
As Respondent notes, “a federal court may not grant a writ of habeas corpus to a
petitioner in state custody unless the petitioner has first exhausted his state remedies by
presenting his claims to the highest state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir.
2000); see also 28 U.S.C. § 2254(b)(1)(A). The purpose of exhaustion is rooted in the principles
of comity and permits “the state [to] be given the first opportunity to correct constitutional
errors in criminal proceedings.” Id. A claim will not be deemed to be exhausted if petitioner “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 Fourth Circuit in Baker, however, noted that the Court has never
strictly construed the requirement that a claim be raised “by any available procedure.” Baker,
220 F.3d at 288. “Rather, the exhaustion requirement is satisfied so long as a claim has been
‘fairly presented’ to the state courts.” Id. (citation omitted). This prohibits “petitioner [from]
present[ing] new legal theories or factual claims for the first time in his federal habeas petition.”
Breard, 134 F.3d at 619; see also Powell v. Kelly, 492 F. Supp. 2d 552, 560 (E.D. Va. 2007)
(citations omitted) (“The exhaustion doctrine does not prevent a petitioner from presenting
evidence to the federal habeas court that was not presented to the state courts, provided that
new evidence merely ‘supplements,’ and does not ‘fundamentally alter,’ the claim raised in the
state petition.”). The burden of proving exhaustion lies with the Petitioner. Breard, 134 F.3d at
619.
However, this does not end the exhaustion analysis. If a petitioner fails to present a claim
to the highest state court, the claim may nevertheless be deemed exhausted “if it is clear that the
claim would be procedurally barred under state law if the petitioner attempted to present it to
the state court.” Baker, 220 F.3d at 288 (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)).
For example, “[u]nder Virginia law, a petitioner is barred from raising any claim in a successive
petition if the facts as to that claim were either known or available to petitioner at the time of his
original petition.” Breard, 135 F.3d at 619 (citation and internal quotation marks omitted); see
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also 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.”). This procedural
bar “provides an independent and adequate state-law ground for the conviction and sentence,
and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the default.” Gray, 518 U.S. at 162 (citations omitted).
Petitioner did not present claims one, three and four to the Supreme Court of Virginia.7
These claims would now be procedurally barred under Virginia Code § 8.01-645(B)(2). Because
the procedural bar that gives rise to exhaustion is an independent and adequate state ground,
Gray, 518 U.S. at 162, the instant claims must be treated as simultaneously exhausted and
procedurally barred from federal habeas review. See Sparrow v. Dir., Dep’t of Corr., 439 F.
Supp. 2d 584, 588 (E.D. Va. 2006).
However, Petitioner may overcome procedural default if he can show cause and
prejudice for the default, or a miscarriage of justice. See Gray, 518 U.S. at 162. As to “cause,”
Petitioner needs to demonstrate the existence of: (1) a denial of effective assistance of counsel,
(2) a factor external to the defense which impeded compliance with the state procedural rule, or
(3) the novelty of the claim. Clozza v. Murray, 913 F.2d 1092, 1104 (4th Cir. 1990). But
Petitioner again fails to carry his burden for the following reasons.
Petitioner’s first and third claims allege ineffective assistance of counsel. To succeed on a
claim of ineffective assistance of counsel, a petitioner must show both that: (1) his attorney’s
performance fell below an objective standard of reasonableness, and (2) he suffered actual
prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of Strickland,
the performance prong, requires the petitioner to “‘show that counsel’s representation fell below
an objective standard of reasonableness’ measured by ‘prevailing professional norms.’” Lewis v.
Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting Strickland, 466 U.S. at 688). There is a
Petitioner claims that “in his appeal to the Supreme Court of Virginia challenging the denial of his postconviction motion, the Petitioner raised all of the substantive issues raised herein.” (Reply Mem. at 4.)
However, upon review of the relevant filings, Petitioner’s instant Petition clearly presents new legal
theories and factual claims. Breard, 134 F.3d at 619.
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“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” and “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. When making an ineffective assistance of counsel
determination, a court must consider “the practical limitations and tactical decisions that
counsel faced.” Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991). The second prong of
Strickland, the prejudice prong, requires the petitioner to show that counsel’s errors were
serious enough to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687. In essence,
the petitioner must show “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.” Id. at 694.
This ineffective assistance of counsel standard likewise applies to direct appeals of
criminal convictions. Evitts v. Lucey, 469 U.S. 387, 396 (1985). The Fourth Circuit has
additionally held that appellate counsel’s decision as to which issues are suitable for appeal “is
entitled to a presumption that [counsel] decided which issues were most likely to afford relief on
appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993).
In Petitioner’s claim 1(A), Petitioner alleges that “counsel failed to properly conduct
adequate pre-trial and trial investigation.” (Mem. in Supp. of Pet. at 4.) Specifically Petitioner
argues that “counsel’s preparation for trial was woefully inadequate,” which “led counsel to fail
to recognize and challenge the most integral evidentiary issues presented against the Petitioner.”
(Id. at 7.) The Fourth Circuit has held that an allegation of inadequate investigation must be
supported by a proffer of what favorable evidence or testimony would have been produced.
Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996). Petitioner, however, does not allege
anything beyond mere conclusory allegations, and therefore Claim 1(A) is without merit.
Moreover, “[a]lthough counsel should conduct a reasonable investigation into potential
defenses, Strickland does not impose a constitutional requirement that counsel uncover every
scrap of evidence that could conceivably help their client.” Tucker v. Ozmint, 350 F.3d 433, 442
12

(4th Cir. 2003) (citations and internal quotation marks omitted). The record supports the
conclusion that Petitioner’s counsel conducted a reasonable investigation. Petitioner’s counsel
investigated each of the three potential witnesses that Petitioner identified. (Br. in Supp. of Mot.
to Dismiss, Ex. 1, attachment G at pg. 3–4.) Additionally, Petitioner and his counsel “discussed
[their] trial strategy many times,” and counsel “attempted to put [their] plan into effect at trial,
to the extent possible.” (Id. at pg. 2.)
In Claim 1(A) Petitioner also intimates that counsel was ineffective for “fail[ing] to
preserve any actual evidentiary issues for appellate review.” (Mem. in Supp. of Pet. at 7.)
However, again Petitioner fails to highlight any argument defense counsel could have reasonably
made. Counsel is not ineffective for failing to make futile motions, see Moody v. Polk, 408 F.3d
141, 151 (4th Cir. 2005), and thus without further support, Petitioner’s claim cannot stand.
Claim 1(B) alleges that “counsel was in direct and actual conflict of interest in
representing the Petitioner because counsel represented the Petitioner during the same period
in which counsel was running for a political office in the Commonwealth.” (Mem. in Supp. of
Pet. at 7.) Petitioner alleges that counsel should have withdrawn from the case “after repeated
requests by the Petitioner for a different attorney.” (Id.)
“When defense counsel’s performance is impeded by an actual conflict of interest,
counsel ‘breaches the duty of loyalty, perhaps the most basic of counsel’s duties,’ and renders
ineffective assistance.” Fullwood v. Lee, 290 F.3d 663, 689 (4th Cir. 2002) (citing Strickland,
466 U.S. at 692). If a habeas petitioner alleges a conflict of interest claim, “petitioner must show
(1) that his attorney had ‘an actual conflict of interest’ and (2) that the conflict of interest
‘adversely affected his lawyer’s performance.’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348
(1980)). If the petitioner can establish both of these elements, “then prejudice to the defense is
presumed and a new trial must be ordered.” Id. (citations and internal quotation marks
omitted).
Here, Petitioner cannot show that his counsel had an “actual conflict of interest.” No
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divergence existed between counsel’s interests and Petitioner’s interests with respect to a
material factual or legal issue or to a course of action. See United States v. Nicholson, 475 F.3d
241, 249 (4th Cir. 2007). Counsel’s affidavit declares that he fought zealously for all of his clients
during his campaign for Commonwealth’s Attorney. (Br. in Supp. of Mot. to Dismiss, Ex. 1,
attachment G at pg. 1.) He “want[ed] to demonstrate to potential voters that he was an effective
litigator, [and] [] also was motivated to demonstrate that the Office of the Commonwealth’s
Attorney was losing cases that should have been won.” (Id.) Thus, Petitioner’s claim 1(B) is also
unavailing.
Next, in Petitioner’s third claim for relief, he argues that appellate counsel was
ineffective for failing to “properly investigate the Petitioner’s case in order to determine viable
issues on appeal.” (Mem. in Supp. of Pet. at 14.) He argues that appellate “counsel raised issues
that had not been properly objected to during trial and therefore, were not properly preserved.”
(Id. at 16.) But, as the Government notes, Petitioner fails to proffer or otherwise identify what
helpful evidence or legal theories further investigation would have revealed. In other words, he
fails to present any facts demonstrating that appellate counsel’s representation fell below “an
objective standard of reasonableness,” or that he was prejudiced as a result of his attorney’s
actions. Petitioner’s bare, conclusory allegations do not support a claim of ineffective assistance
of counsel. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrogated on other
grounds by Gray, 518 U.S. at 165–166.
Because Petitioner cannot demonstrate cause for his procedural default, his claims that
were not raised in the Virginia Supreme Court are procedurally barred. See Breard, 134 F.3d at
620 (if Petitioner cannot show cause for his default, the issue of prejudice need not be
addressed).8
//

8

Petitioner also does not attempt to argue a miscarriage of justice to excuse his procedural default.

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IV.

EVIDENTIARY HEARING
Petitioner requests an evidentiary hearing on the issues raised in the present Petition.

(Mem. in Supp. of Pet. at 2.) The decision to grant an evidentiary hearing is left to the “sound
discretion of district courts.” Schriro, 550 U.S. at 473. A federal court must consider whether the
evidentiary hearing would provide the petitioner the opportunity to “prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474; see
Mayes v. Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000). The court must also consider the
standards prescribed by section 2254 when considering whether an evidentiary hearing is
appropriate. Schriro, 550 U.S. at 474. Based on a thorough evaluation of the state court record,
habeas relief under § 2254 is precluded, and thus the request for an evidentiary hearing is
denied.
V.

CERTIFICATE OF APPEALABILITY
A district court that enters a final order denying a § 2254 motion must grant or deny a

certificate of appealability. Rules Governing Section 2254 Proceedings 11. A certificate of
appealability may issue only if the applicant has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336–38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). In order to satisfy § 2253(c), a petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. Miller-El, 537 U.S. at 336–38 (citing Slack, 529 U.S.
at 484). For the reasons stated more fully above, no law or evidence suggests Petitioner is
entitled to further consideration of his claims. Accordingly, the Court DENIES a certificate of
appealability.
VI.

CONCLUSION
For the foregoing reasons, the Court DISMISSES the Petition, DENIES a certificate of

appealability, and GRANTS the Motion to Dismiss.
Let the Clerk send a copy of this Memorandum Opinion to Petitioner and all counsel of
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record.
An appropriate Order shall issue.

_____________________/s/__________________
James R. Spencer
Senior U. S. District Judge
ENTERED this _10th___ day of June 2015.

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