On July 14, 2004, Davis pled guilty to two counts of distribution of cocaine in the Circuit Court of Fairfax County ("Circuit Court"). On December 17, 2004, the Circuit Court sentenced Davis to two terms of imprisonment for ten years with four years and eight months suspended on each count. Additionally, the Circuit Court imposed a three-year term of post release supervision on each count. The Circuit Court ordered the sentences to run concurrently with each other, but consecutively with a separate sentence imposed in Arlington County for a different distribution conviction. On June 9, 2005, the Circuit Court entered final judgment after denying various post-trial motions.
On January 10, 2006, Davis filed a state habeas petition, raising the following claims:3
Claim a Trial Counsel's ineffective pretrial assistance acted to violate my Constitutional rights. Bobby B. Stafford failed and refused to make proper trail preparations, interview witnesses, or conduct proper legal research.
Claim b Trail Counsel's ineffective assistance as to plea acted to violate my Constitutional rights. Bobby B. Stafford failed or refused to conduct a reasonably adequate investigation or provide me with reasonably competent advice before urging me to enter a plea of guilty; thus rendering my plea unintelligent.
Claim c Trail counsel's ineffective assistance as to sentencing acted to violate my Constitutional rights. Bobby B. Stafford deprived me of a fair sentencing hearing by failing or refusing to aid in marshaling the facts, introducing evidence of mitigation, and in generally aiding and assisting me in the presentation of my case as to sentencing.
Claim d Trial and post-conviction counsels' ineffective assistance as to appeal, acted to violate my Constitutional rights. Bobby B. Stafford, David Bahuraik, and Edward Crisonino acted to deprive me of my right as toappeal by failing or refussing to investigate appealable issues, advise me of my rights as to appeal, or timely file notice of appeal.
Claim e The Commonwealth's Attorney for Fairfax County acted, in violation of my Constitutional rights, by materially breaking the terms of my plea of guilty.
Claim f The Commonwealth's Attorney for Fairfax County acted in violation of my Constitutional rights by the presentation and use of false, improper, misleading, and unsubstantiated evidence; thus depriving me of a full and fair hearing.
Claim g The Commonwealth's Attorney for Fairfax County acted in violation of my Constitutional rights by failing or refusing to correct false, improper, misleading, and unsubstantiated evidence.
Claim h The Commonwealth's Attorney for Fairfax County acted in violation of my Constitutional rights by using improper methods at trail calculated to produce unjust results.
Claim i The Commonwealth's Attorney For Fairfax County acted in violation of my Constitutional rights by engaging in selective prosecution.
Claim j The Commonwealth's Attorney for Fairfax County acted in violation of my Constitutional rights by referring to my post-Miranda silence as a sign of deception on my part.
Claim k The Commonwealth's Office of Probation acted in Violation of my Constitutional rights by failing or refusing to ensure the accuracy, completeness, fairness, or reliability of the information included in and used in the creation of my Presentencing Investigation.
Claim 1 The Commonwealth's Office of Probation acted in violation of my Constitutional rights by being willfully deceptive to me as well as the Court.
Claim m Trial Judge acted in violation of my Constitutional rights by failing to ensure the accuracy, reliability, or fairness of the information used in my sentencing.
Claim n Trial Judge acted in violation of my Constitutional rights by denying me the opportunity to ensure the accuracy of the information proffered during my sentencing hearing.
Claim o Trail Judge acted in violation of my Constitutional rights by predicating my sentence on assumptions not founded in the evidence or which were materially false.
Claim p Trail Judge acted in violation of my Constitutional rights by predicating her finding of guilt on assumptions not founded in the evidence or which were materially false.
Claim q Trial Judge acted in violation of my Constitutional rights by not withholding her determination of guilt until sentencing as agreed.
Claim r Trial Judge acted in violation of my Constitutional rights by not instructing me as to appeal.
(Pet. Ex. 1, at 6-8.)
On October 26, 2006, the Circuit Court granted in part and denied in part the petition. Davis v. Johnson, No. CL-2006-395 (Va. Cir. Ct. Oct. 26, 2006) (hereinafter "State Hab. Op."). The Circuit Court rejected Claims e through r because Davis had not raised the issues on trial and appeal, Slayton v. Parrigan, 205 S.E.2d 680 (Va, 1974), because Davis's claims contradicted representations made during his plea proceedings, Anderson v. Warden, 281 S.E.2d 885, 888 (Va. 1981), and because the claims were too conclusory to state a claim for relief pursuant to Penn v. Smyth, 49 S.E.2d 600, 601 (Va. 1948). State Hab. Op. 7-8. The Circuit Court rejected Claims a through c on two alternate grounds, finding that: (1) Davis's submissions did not demonstrate that counsel had rendered ineffective assistance and, (2) Davis's "self-serving complaints about [his trial counsel,] Mr. Stafford[,] are blatantly and wholly inconsistent with what [Davis] said when he pled guilty. [See Anderson, 281 S.E.2d at 888]." State Hab. Op. 9. The Circuit Court granted relief on Claim d, and allowed Davis to file a belated appeal. The remaining claims were dismissed with prejudice.
Davis appealed the Circuit Court's denial of the claims other than Claim d. The Supreme Court of Virginia affirmed the Circuit Court's ruling because Davis did not challenge the Circuit Court's application of Anderson, which constituted an independent ground for the Circuit Court's judgment. Davis v. Johnson, 652 S.E.2d 114, 117-18 (Va. 2007).
B. Belated Appeal Proceedings Davis raised the following claims on direct appeal:
Claim 1 The Circuit Court erred in finding that Davis's guilty plea was made voluntarily with an understanding of the nature of the charge and the consequences of the plea.
Claim 2 The Circuit Court erred in sentencing Davis to a ten-year term of
incarceration with four years and eight months suspended despite language in the plea forms indicating that any sentence of incarceration would be followed by '"an additional term of not less than six months nor more than three years, all of which shall be suspended, conditioned upon successful completion of a period of post release supervision.'"
Petition for Appeal at 5, Davis v. Commonwealth, No. 3177-06-4 (Va. Ct. App. filed Apr. 2, 2007).
On July 6, 2007, the Court of Appeals rejected both claims because they had not been raised at trial, in violation of Rule 5A:184 of the Rules of the Supreme Court of Virginia. Davis v. Commonwealth, No. 3177-06-4 (Va. Ct. App. July 6, 2007). On November 28, 2007, the Supreme Court of Virginia refused Davis's appeal.
C. Claims Raised in the Instant Petition Davis raises the following claims in his federal habeas petition:5
Claim A Trial counsel's ineffective pre-trial assistance acted to violate petitioner's 6th Amendment Constitutional rights to effective counsel. Bobby Stafford failed and refused to make proper trial preparations, interview witnesses, or conduct proper legal research. (Pet. Ex. 2, at 1.)
1. Trial counsel failed to analyze the Commonwealth's evidence or interview material, exculpatory witnesses.
2. Trial counsel failed to disclose a prior "closed head injury." (Id.)
3. Trial counsel failed to investigate possible defenses.
Claim B Trial Counsel's ineffective assistance as to plea acted to violate the petitioner's 6th Amendment Constitutional rights to effective counsel. Mr. Stafford failed or refused to conduct a reasonably adequate investigation or provide the petitioner with reasonably competent advice before urging the petitioner to enter a plea of guilty, thus rendering the petitioner's plea unintelligent. (Id. at 6.)
1. Trial counsel failed to advise the petitioner as to available defenses.
2. Trial counsel misrepresented the sentence the petitioner would receive if the petitioner entered a guilty plea.
3. Trial counsel told the petitioner that the Circuit Court would defer making a finding of guilt until sentencing and that he could withdraw his plea if no finding of accommodation was made.
Claim C Trial counsel's ineffective assistance as to sentencing acted to violate petitioner's 6th Amendment Constitutional rights to effective counsel. Bobby B. Stafford deprived the petitioner of a fair sentence hearing by failing or refusing to aid in marshalling the facts, introducing evidence of mitigation, and in generally acting and assisting the petitioner in the presentation of his case as to sentencing. (Id. at 9.)
1. Trial counsel failed to challenge the Court's assertion that "there is no plea agreement" in the petitioner's case. (Id.)
2. Trial counsel failed to challenge
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