MEMORANDUM OPINION
Onterio Dimitri Brown ("Brown" or "petitioner"), a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his May 28, 2019 conviction in the Circuit Court of the City of Williamsburg and County of James City, Virginia for malicious wounding. Respondent has filed a Motion to Dismiss, with a supporting brief and exhibits. [Dkt. Nos. 10-12]. Brown has been notified of the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) [Dkt. No. 13], and he has not responded. Accordingly, this matter is now ripe for disposition. A review of the record in this matter establishes that the respondent's Motion to Dismiss must be granted, and the petition will be dismissed with prejudice.
Brown is detained under a final order of the Circuit Court of the City of Williamsburg and County of James City, Virginia entered on May 28, 2019. [Dkt. No. 11-1]; Commonwealth v. Brown, Case No. CR28044-00. Following a January 3, 2019 bench trial, Brown was convicted of one count of malicious wounding, in violation of Virginia Code § 18.2-51. On May 22, 2019, the circuit court sentenced Brown to 15 years in prison, with 8 years and 11 months suspended. The final order imposing the judgment was entered on May 28, 2019. Id.
On direct appeal, Brown challenged the sufficiency of the evidence to sustain his conviction. The Court of Appeals of Virginia denied Brown's petition for appeal on January 9, 2020, and a three-judge panel of that court adopted the January 9, 2020 order in its April 3, 2020 order denying Brown's appeal. [Dkt. Nos. 11-2 and 11-3]; Brown v. Commonwealth, Record No. 0839-19-1. The Court of Appeals found the following facts in its per curiam opinion:
Around 10:30 p.m. on April 29, 2018, Javon Edwards and Tierra Jackson drove to Jackson's apartment to get her laundry basket because they were doing laundry at a nearby laundromat. When Jackson exited the vehicle, Jequan Carroll confronted her about being with Edwards. Jackson "ignored" Carroll and went inside her apartment. Carroll began "beating on the door," so Edwards "stepped out of [his] vehicle." Jackson then exited the apartment, and Carroll followed behind her, arguing and yelling. Edwards asked Carroll "why [are] you arguing with her?" In response, Carroll redirected his attention to Edwards.
Carroll and Edwards exchanged words and agreed to engage in a fistfight. Edwards walked towards Carroll; Carroll pulled out a handgun from his waistband and handed it to a person standing to his right. Although Edwards was watching the gun, he noticed appellant "trying to get in behind [him]." Edwards turned to face appellant and asked "[s]o what, you all going to jump me now?" Appellant "pulled out a knife" and told Edwards "It ain't that kind of party," then "lunged" at Edwards with the knife.
Edwards attempted to block the knife and "grabbed it with [his] left hand." Edwards drew his handgun and fired one shot at appellant. Appellant was struck in the hip and fell to the ground. Edwards was then shot from behind by someone he could not identify. Edwards fell to the ground and was kicked repeatedly about his head and body. The assailants then fled together.
Carroll helped appellant up from the ground and took him from the scene to the hospital. Edwards was treated on scene by emergency personnel and went to the hospital where he received stitches in his left index finger from a wound sustained when he grabbed appellant's knife. Edwards also received treatment for a gunshot wound to his right buttock.
While being treated on scene, Edwards told emergency personnel that someone had attacked him with a knife and that he shot the assailant. Edwards provided police with a physical description of the assailant at the scene and later at the hospital. Edwards's statements at the scene were recorded on police body cameras, and the recordings were reviewed and admitted at trial. Edwards had briefly met appellant on one previous occasion and acknowledged that appellant was his second cousin. Edwards could not remember appellant's name until someone told him during a conversation about the shooting several days later.
Edwards testified that he recognized appellant's face during the event, regardless of what his name was. Edwards identified appellant at trial.
Williamsburg City Police Investigator Richard Schugeld interviewed appellant at the hospital and asked him whether "he carried a knife down to the altercation." Appellant responded that he "always ha[d] a knife," and described it as a blue knife with a folding blade.
Appellant's niece, Jasmine Strong, lived next door to Jackson and testified that she saw the altercation. Strong asserted that appellant was shot when he tried to break up a fight between Edwards and Carroll. Strong claimed that she did not see appellant with a knife and that Edwards and Carroll had exchanged "at least" five punches before appellant intervened. Strong conceded that she never told the police that appellant tried to break up the fight or that he did not have a knife.
Appellant testified that he stepped out of his girlfriend's apartment to smoke a cigarette and heard the nearby argument between Carroll and Edwards. Appellant claimed they had already begun fighting as he walked toward them to break up the affray. When he went "to get in between them," Edwards "pull[ed] his gun." Appellant denied having a knife when he confronted Edwards. According to appellant, he pushed Edwards's gun down, and was struck in his hip by a bullet. Appellant fell to the ground and "got shot again" from a bullet that went through Edwards. Appellant acknowledged that he was familiar with Edwards but denied knowing Carroll. Carroll nevertheless helped him from the ground and drove him to the hospital after the shooting. Appellant conceded that he had been convicted of "[m]ore than" seven felonies.
Appellant moved to strike the evidence at the close of the Commonwealth's case in-chief and at the close of all the evidence; the trial court denied both motions. The trial court convicted appellant of maliciously wounding Edwards with a knife. Appellant filed a pro se motion to set aside the verdict; the trial court denied the motion. The trial court sentenced appellant to fifteen years' incarceration, with eight years and eleven months suspended. This appeal followed.
[Dkt. No. 11-2 at 1-2].
The Supreme Court of Virginia refused Brown's petition for appeal on December 29, 2020. [Dkt. No. 11-4]; Brown v. Commonwealth, Record No. 200475. Brown did not seek other postconviction relief in state court.
On or about January 11, 2021, Brown filed his current federal petition for a writ of habeas corpus, in which he has raised the following grounds for relief:
I. The trial court erred in denying Brown's motion to set aside the verdict due to intrinsic fraud as the arrest warrant and grand jury indictment were secured by perjury and fraud in violation of due process.
II. The evidence was insufficient to prove beyond a reasonable doubt that Onterio Brown was the individual who attacked Javon Edwards.
III. The evidence was insufficient to prove beyond a reasonable doubt that Onterio Brown committed a malicious wounding.
IV. The verdict was constitutionally infirm as it was based solely on surmise, speculation, and ungrounded conjecture.
V. The Court of Appeals of Virginia and Virginia Supreme Court denied petitioner a full and fair hearing and the Court of Appeals order is an unreasonable determination of the facts presented and violated due process and the Virginia Supreme Court refused Brown's petition for appeal.
[Dkt. No. 1 at 5-11].
II. Exhaustion and Default "[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). To satisfy the exhaustion requirement, a petitioner "must have presented to the state court 'both the operative facts and the controlling legal principles.'" Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002) (citation omitted). process." In the instant case, Respondent admits Brown has exhausted claims (II) through (V). [Dkt. No. 11 at 4].
Claim (I) alleges that the arrest warrant and the indictment were obtained by intrinsic fraud because each was obtained by perjury, fraud, and the use of false information. [Dkt. No. 1 at 5]. Brown raised claim (I) in the circuit court as part of his pro se motion to vacate. The subsequent direct appeal, however, only challenged the sufficiency of the evidence. If Brown attempted to rise the claim now in state court, it would be barred as untimely under the state habeas statute of limitations, Virginia Code § 8.01-654(A)(2), which constitutes a bar to this Court's review of any federal claim he raised in state habeas regarding the three revocationjudgments.1 See Breard v. Pruett, 135 F.3d 615, 619 (4th Cir.), cert. denied sub nom., Breard v. Greene, 523 U. S. 371 (1998); Bennett v. Angelone, 92 F.3d 1336, 1343 (4th Cir.), cert. denied, 519 U.S. 1002 (1996) ("[a] habeas petitioner is barred from seeking federal review of a claim that was presented to a state court and 'clearly and expressly' denied on the independent, adequate state ground of procedural default."); Sparrow v. Dir., Dep't of Corrs, 439 F. Supp. 2d 584, 588 (E.D. Va. 2006) (recognizing § 8.01-654(A)(2) as an independent and adequate bar). Further, since Brown did not raise claim (I) on direct appeal, the claim would also be barred under the rule of Slayton v. Parrigan, 215 Va. 27 (Va. 1974) because Brown could have raised it on direct...
