Brown v. Clarke

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

ORMRODE ALLEN BROWN, )

)

Petitioner, ) Case No. 7:21CV00442

)

v. ) OPINION

)

HAROLD CLARKE, ) JUDGE JAMES P. JONES

)

Respondent. )

)

Ormrode Allen Brown, Pro Se Petitioner; Victoria Lee Johnson, Assistant

Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Respondent.

Petitioner, Ormrode Allen Brown (Brown), a Virginia inmate proceeding pro

se, in his Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition),

contends that his confinement pursuant to a judgment entered by the Circuit Court

of Rockingham County is unconstitutional because of prosecutorial or court error,

because counsel provided ineffective assistance, or because the evidence was

insufficient to support his convictions. Upon review of the record, I conclude that

the respondent’s Motion to Dismiss must be granted.

I. BACKGROUND.

The Court of Appeals of Virginia, in its per curiam opinion denying Brown’s

direct appeal on February 13, 2019, summarized the evidence in the light most

favorable to the prosecution:

The convictions arose from a physical conflict between [Brown]

and his wife with five individuals: MacKenzie Gray, Lindsay Reed,

Mariah Smith, Andre Valentine, and Devon Barnhardt. Gray died as a

result of the altercation, and Reed was severely injured.

At trial, the evidence proved that in the late hours of February 4,

2018,1 and the early hours of the next morning, [Brown] and the other

individuals involved were at the Golden Pony, a restaurant and bar [in

Harrisonburg, Virginia]. Carla Brown [Carla], [Brown’s] wife and

codefendant, perceived a slight and became “upset” and “angry” with

Gray, Reed, and Smith. [Carla] yelled at them, a bouncer intervened in

the argument, and the parties were separated.

At about 1:45 a.m., Gray, Reed, Smith, Barnhardt, and Valentine

left the Golden Pony and drove to a [7-Eleven] convenience store. They

had been at the store for a brief time when [Brown and Carla] pulled

into the parking lot. [Carla] exited the car and saw Reed, Gray, and

Smith. She began “talking smack,” stating, “They the little bitches right

there.” [Carla] then began a heated verbal argument with Gray and

Smith. The confrontation quickly turned into a physical altercation.

During the physical fight, [Carla] ended up on the ground

holding Gray by her hair. Gray was trying to stand, but she could not

get up because [Carla] was “pulling her hair down.” Reed

unsuccessfully tried to separate the women. [Brown] came over to

where the women were fighting. Barnhardt and Valentine were

standing nearby. Barnhardt told [Brown] that they could “diffuse [sic]

the situation” if [Brown] pulled his wife away and Barnhardt pulled

“[his] people back.” Valentine, who was standing next to [Brown],

1 This date is clearly a typographical error and should read 2017, the year indicated

on the Indictments for these events.

heard [Brown] say, “I'm going to kill all of these bitches tonight.”

[Brown] then pulled out a knife. Barnhardt heard [Brown] say, “[O]ne

of you bitches is going to die,” and saw [Brown] begin stabbing “with

force.” Neither Valentine nor Barnhardt saw any other persons in

possession of a knife during the incident.

Reed tried to separate Gray and [Carla], and [Brown] stabbed

[Reed] in the chest and the back of her head. Barnhardt tried to help

Reed, and [Brown] stabbed Barnhardt in the arm. [Brown] then

approached [Carla] and Gray. The two continued to fight, with Gray

on top of [Carla]. [Brown] stabbed Gray in her neck and back with his

knife. Barnhardt tried to help Gray “because they wouldn’t let [Gray]

go” and she was “really hurt” and bleeding. He grabbed a nearby

helmet from a parked scooter and swung the helmet, trying to get

[Brown] and [Carla] away from Gray.

Venkats Kola, who was working at the convenience store,

testified that the wounded Gray entered the store, asking for help.

[Carla] followed Gray into the store and dragged her away from the

counter and onto the floor. [Carla] continued to attack Gray inside the

store. Several people attempted to come to Gray’s aid while she was

on the floor, but [Carla] held her in place and continued her physical

attack. Using his knife, [Brown] “guard[ed] his wife” while [Carla]

assaulted Gray. Finally, Valentine struck [Brown] in the head with a

glass beer bottle, and Barnhardt was able to grab Gray from [Carla] and

pull her out of the store.

When Officer Dylan Johnson of the City of Harrisonburg Police

Department arrived at the scene, Gray was writhing on the ground

outside of the store. [Carla] and [Brown] were both inside the store.

[Brown] removed a knife from his pocket and threw it to the floor. As

[Brown] left the scene, he shouted, “Mother fuckers. You mother

fuckers,” and “Mother fucking bitch.”

[Brown] told Officer Johnson that he did not stab anyone. He

also informed Johnson that he had been stabbed during the incident, but

Officer Johnson saw no stab wounds on [Brown]. [Brown] additionally

told the officer that he had defended [Carla] by “pull[ing]” people off

of her. Officer Johnson did not recall seeing any weapons that belonged

to the victims or members of their group.

After the incident, Reed’s wounds to her chest and the back of

her head required stitches. [Brown] had stabbed Barnhardt with such

force that the knife went through Barnhardt’s arm. Gray later died as a

result of the knife injur[i]es to her neck and torso. One of Gray’s stab

wounds was three and a quarter inches deep, entered her body through

two vertebrae, and struck an artery. Another three and one-half-inch

deep stab wound cut her kidney. Photographs and video recordings of

the incident were admitted into evidence at trial.

At trial, [Brown], who had twenty-one felony convictions and

twenty-six convictions involving lying, cheating or stealing, testified

that he and [Carla] had consumed alcohol on the date of the incident.

[Brown] claimed that he was not involved in any disputes at the Golden

Pony and that he was not aware of any prior arguments between [Carla]

and Gray, Reed, or Smith that took place there. In addition, [Brown]

directly contradicted two of the statements that he had made earlier to

Officer Johnson. First, he admitted that he had not been stabbed during

the incident. Second, [Brown] acknowledged he did not try to pull

people away from his wife but instead used his knife.

[Brown] testified that after he and [Carla] left the Golden Pony

and arrived at the convenience store, [Carla] and Smith argued outside

the store and several of Smith’s friends approached [Carla]. [Carla]

was on the ground with Gray on top of her. [Brown] grabbed his knife

from his pocket and “just tried to get the people off [his] wife.”

[Brown] claimed that he stabbed Gray in an attempt to get her off of

[Carla]. According to him, when that did not work, he stabbed Gray

again. He stated that it then became a “total melee” and that he tried to

protect [Carla] by getting her inside the store. [Brown] suggested that

he was trying to “deffuse” [sic] the situation, that he did not intend to

hurt anyone, and that he acted in “pure reaction.”

Br. Supp. Mot. Dismiss Ex. 2, at 2–4, ECF No. 8-2.

A grand jury returned indictments charging Brown and Carla with multiple

counts related to these incidents. They pleaded not guilty and proceeded to a joint

jury trial. On January 25, 2018, a jury found Brown guilty of these offenses: first-

degree murder of Gray; attempted first degree murder of Reed; malicious wounding

of Barnhardt; malicious wounding of Reed; and being a principal in the second

degree to the abduction of Gray. The jury recommended a life sentence for the first-

degree murder conviction, plus prison terms of five years on each count of malicious

wounding, two years for abduction, and ten years for attempted murder. On March

16, 2018, the court imposed the sentences recommended by the jury to run

consecutively to each other.

Brown appealed, arguing that the evidence was insufficient to support his

convictions, that the trial court erred in refusing a proffered, defense of other jury

instruction, and that the trial court erred in failing to remove a sleeping juror. The

Court of Appeals of Virginia denied his petition, and the Supreme Court of Virginia

refused Brown’s subsequent appeal. Brown timely filed a pro se Petition for a Writ

of Habeas Corpus in the Supreme Court of Virginia, raising substantially the same

claims that he now raises in his federal habeas petition. The Supreme Court granted

the respondent’s Motion to Dismiss in an twelve-page Order dated April 1, 2021.

Id. Ex. 5, ECF No. 8-5.

Brown timely filed his federal habeas petition under 28 U.S.C. § 2254.

Liberally construed, it alleges the following grounds for relief:

Ground One: The trial court erred by failing to take testimony

from individuals who reported Juror Smith’s nodding off four times and

by failing to replace Smith with an alternate. Pet. 16–20, ECF No. 1.2

Ground Two: Trial counsel provided ineffective assistance when

he “failed to move the court to require” testimony about Juror Smith’s

nodding off four times; when he failed to move for Smith’s removal

from the jury; and when he “failed to make timely, contemporaneous

objection and thusly failed to preserve the matter for direct appeal.” Id.

at 20–21.

Ground Three: Appellate counsel provided ineffective assistance

when counsel failed to raise on appeal the violation of Due Process

alleged in Ground One under the “ends of justice exception” to

Supreme Court of Virginia Rule 5A:18 or “Plain Error.” Id. at 21–22.

Ground Four: The prosecutor engaged in misconduct and

“deliberately prejudiced the jury” by questions related to Brown’s

choice to exercise his right to remain silent when police tried to

question him. Id. at 22–25.

Ground Five: Trial counsel provided ineffective assistance when

he failed to move for a curative instruction concerning the prosecutor’s

misconduct alleged in Ground Four. Id. at 25–27.

Ground Six: Appellate counsel provided ineffective assistance

when counsel “failed to raise on appeal the violations of Due Process

and Fifth Amendment rights as stated in ‘Ground Four’” under the

“ends of justice exception” to Supreme Court of Virginia Rule 5A:18.

Id. at 28–29.

Ground Seven: The prosecutor committed prosecutorial

misconduct during closing arguments by making an inaccurate

statement of law and inflammatory comments about Brown’s prior

criminal record, and the trial court erred when it failed to sua sponte

provide the jury with a “curative instruction.” Id. at 30–34.

2 Citations to Brown’s federal habeas petition use the page numbers assigned to

documents by the court’s electronic filing system.

Ground Eight: Trial counsel provided ineffective assistance

when he failed to object to the prosecutor’s statements during closing

argument and failed to seek a curative instruction. Id. at 35–36.

Ground Nine: Appellate counsel provided ineffective assistance

when “counsel failed to raise on appeal the violation of Due Process”

alleged in Ground Seven under the “ends of justice exception” of

Supreme Court of Virginia Rule 5A:18. Id. at 36–38.

Ground Ten: The evidence was insufficient to support Brown’s

convictions. Id. at 38–43.

The respondent has filed a Motion to Dismiss, and Brown has responded,

making the matter ripe for disposition. I have also reviewed the extensive state court

records, including clips of video footage of the incident that the jurors viewed during

trial.

II. DISCUSSION.

A. Exhaustion and Procedural Default.

A federal court may grant a petitioner habeas relief from a state court judgment

“only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). A federal district court

reviewing a § 2254 petition is also limited by the separate but related doctrines of

exhaustion and procedural default. These doctrines promote the principles of

finality, comity, and federalism, recognizing a state’s legitimate interests in

enforcing its laws and allowing states the first opportunity to address and correct

alleged violations of a state prisoner’s federal rights. Coleman v. Thompson, 501

U.S. 722, 730–31 (1991).

Absent a valid excuse, a state prisoner must exhaust his remedies in the state

courts before seeking habeas relief in federal court. 28 U.S.C. § 2254(b)(1)(A).

Exhaustion requires a petitioner to present the facts and argument of his federal

constitutional claims properly to the appropriate state courts up to the highest state

court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

The respondent agrees that Brown has exhausted his state court remedies as to

the issues raised in Grounds One through Ten of his federal habeas petition. Brown

presented Grounds One through Nine in his state habeas petition to the Supreme

Court of Virginia, and he presented Ground Ten on direct appeal.

The parties also agree that Grounds One, Four, and Seven of Brown’s federal

petition are procedurally defaulted under state law. Br. Mem. Supp. Mot. Dismiss

Ex. 5, at 1–2, ECF No. 8-5. In habeas proceedings, the Supreme Court of Virginia

concluded that these claims were procedurally barred from review on the merits

under the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (1974) because Brown

failed to raise them at trial or on direct appeal. The Slayton decision expressly held

that “[a] petition for a writ of habeas corpus may not be employed as a substitute for

an appeal or a writ of error.” Id.

If a state court has explicitly denied a petitioner’s claim based on a state

procedural rule that provides an independent and adequate ground for the state

court’s decision, that claim is also procedurally defaulted for purposes of federal

habeas review. Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Because the

state court expressly based its dismissal of Grounds One, Four, and Seven on an

independent and adequate state ground, Brown is procedurally barred from seeking

federal habeas review of these claims. Prieto v. Zook, 791 F.3d 465, 468–69 (4th

Cir. 2015) (holding Slayton rule is independent and adequate state ground).

A federal habeas court will consider a procedurally defaulted claim only if “the

prisoner can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice.”3 Coleman, 501 U.S. at 750.

Cause for procedural default requires the existence of some objective factor, external

to the defense and not attributable to the petitioner. Id. at 756–57. To show prejudice

to overcome procedural default, a petitioner must show that the claimed violation

worked to his “actual and substantial disadvantage, infecting his entire trial with

3 To prove a fundamental miscarriage of justice to excuse a procedural default, the

petitioner must show that “a constitutional violation has probably resulted in the conviction

of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Brown

has made no such argument in this case.

error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170

(1982).

Brown contends that ineffective assistance of counsel regarding each of these

issues constitutes cause for his state procedural default of Grounds One, Four, and

Seven. He also alleges, as he did in his state habeas petition, that counsels’

unreasonable failure to raise the issues presented in these grounds at trial and on

appeal presents independent grounds for federal habeas relief, as argued in Grounds

Two, Three, Five, Six, Eight, and Nine. Attorney errors can serve as cause to excuse

a procedural default, but only if the attorney’s deficient performance rose to the level

of constitutionally ineffective assistance of counsel under the Sixth Amendment.

Coleman, 501 U.S. at 754. For reasons explained as I discuss each of Brown’s

claims of ineffective assistance below, I conclude that he has not demonstrated that

any of counsel’s challenged omissions violated his constitutional rights. Therefore,

Brown’s assertions of ineffective assistance cannot serve as cause to excuse his

procedural defaults, and Brown does not argue any other cause. Accordingly, I will

dismiss Grounds One, Four, and Seven as procedurally barred from federal habeas

review.

B. Ineffective Assistance of Counsel Claims.

1. The Standard of Review.

Under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA),

federal courts reviewing constitutional claims adjudicated on the merits in state court

may grant relief on such a claim only if the state court’s decision was (1) “contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “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)(1)–(2).

In the context of federal habeas review, the question is not whether a federal

court would reach the same decision as the state court or even whether the federal

court believes the state court’s decision is correct. A petitioner must convince the

federal habeas court that the state court’s decision was unreasonable, “a substantially

higher threshold.” Knowles v. Mirazayance, 556 U.S. 111, 123 (2009).4

The term unreasonable refers not to ordinary error or even to

circumstances where the petitioner offers a strong case for relief, but

rather to extreme malfunctions in the state criminal justice system. In

other words, a federal court may intrude on a State’s sovereign power

to punish offenders only when a decision was so lacking in justification

beyond any possibility for fairminded disagreement.

4 I have omitted internal quotation marks, alterations, and citations here and

throughout this Opinion, unless otherwise noted.

Mays v. Hines, 141 S. Ct. 1145, 1149, reh’g denied, 141 S. Ct. 2693 (2021).

When reviewing claims that counsel provided ineffective assistance at trial or

on appeal, a federal court must apply a highly deferential standard. A petitioner

must show (1) that counsel’s performance was so deficient that he was not

functioning as counsel guaranteed by the Sixth Amendment and (2) that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). In the context of an exhausted § 2254 habeas claim, review of counsel’s

performance is “doubly deferential,” because the Strickland standard overlaps with

the deferential standard under 28 U.S.C. § 2254(d). Cullen v. Pinholster, 563 U.S.

170, 190 (2011).

To establish the element of deficient performance, a petitioner must

demonstrate that counsel’s performance fell below “an objective standard of

reasonableness . . . under prevailing professional norms.” Strickland, 466 U.S. at

688. The reviewing court must not rely upon “the distorting effects of hindsight,”

but must presume that counsel’s decisions and actions fell within the wide range of

reasonable strategic decisions. Id. at 689–90. Under § 2254(d), the performance

question becomes “whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard” of objective reasonableness. Harrington v.

Richter, 562 U.S. 86, 105 (2011).

To establish prejudice, a petitioner must show that but for counsel’s challenged

conduct, there is a “reasonable probability that . . . the result of the proceeding would

have been different,” which means “a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694. Because deficient performance and

prejudice are “separate and distinct elements” of an ineffective assistance claim, if

the petitioner fails to establish one of these elements, the court may dismiss the claim

without addressing the other element. Spencer v. Murray, 18 F.3d 229, 232–33 (4th

Cir. 1094); Strickland, 466 U.S. at 697. I will apply these deferential standards in

reviewing Brown’s ineffective assistance of counsel claims, all of which were

rejected by the state habeas court.

2. The Sleeping Juror.

In Ground Two, Brown argues that trial counsel was ineffective in regard to

the sleeping juror issue in three ways.5 He contends that counsel unreasonably

“failed to move the court to require the witnesses who observed Juror Smith

‘nodding off . . . four times’ to testify as to exactly what they observed.” Pet. 21,

ECF No. 1. Brown also faults counsel for failing “to move the [c]ourt to remove

Juror Smith from the jury panel after his admission that he has a problem ‘nodding

off.’” Id.

5 As discussed further herein, Brown raised the juror issue on direct appeal, but

cited no authority. Brown does not challenge the state appellate courts’ findings that he

procedurally defaulted this claim on appeal by not providing legal authority to support it.

The state habeas court determined that these claims satisfied neither the

“performance” nor the “prejudice” prong of the Strickland standard:

The record, including the trial transcripts, demonstrates that on the third

day of [Brown’s] joint trial with [Carla], Evans[,] [Carla’s defense

counsel,] advised the trial court, “[I]t was relayed to me yesterday by

some of my staff who’s been observing the proceedings that it appears

that a juror was nodding off yesterday during court.” Evans identified

the juror as Juror Smith, and stated, “I personally did not observe it, but

I trust what my staff says and they said they observed it on four separate

occasions.” The trial judge then commented that he had been observing

the jurors throughout the trial, making it a point to “look at all fourteen

[jurors] in the face to make sure that they’re paying attention,” and that

he had not observed a juror “nodding off.” Nevertheless, the court

called Juror Smith, placed him under oath, and asked him whether he

“had any trouble paying attention during the course of [the] trial.” Juror

Smith replied, “No, sir.” The court then stated, “Okay. There was some

concern, someone thought that you might have nodded off or

something.” Juror Smith responded, “I do that. I’ve worked in the cold

for forty-some years and sometimes in a hot room sitting still, I do this,

but . . .[.]” At which point, the court interjected, “Do you feel

comfortable that you’ve been awake and paying attention the whole

time?” To which Juror Smith responded, “Yes, sir.” The court then

ordered Juror Smith back to the jury panel. [Brown’s] counsel did not

request the court interview the staff members who had observed Juror

Smith and did not object or request removal of Juror Smith.

“Whether [a] juror [is] . . . of sufficient . . . wakefulness to

continue with the trial [is] a matter within the sound discretion of the

trial court.” Ellis v. Commonwealth, 227 Va. 419, 422 (1984). Here,

in light of the trial court’s own observations of the jurors’ attentiveness

and Juror Smith’s sworn testimony that although he had a tendency to

nod off in a warm room, he had been awake and paying attention the

entire trial, counsel reasonably could have concluded that pursuing the

matter further would have been unavailing. Counsel is not ineffective

for failing to pursue a futile argument. See Correll v. Commonwealth,

232 Va. 454, 470 (1987). Furthermore, [Brown] does not allege, and

the record does not establish, that Juror Smith was, in fact, sleeping at

any point during the trial. “[J]ust because a juror’s eyes [are] closed

[does] not mean that the juror was inattentive.” Mayo v.

Commonwealth, 10 Va. App. 335, 337 (1990). Additionally, [Brown]

does not allege the result of his trial would have been different had Juror

Smith been removed from the jury panel and replaced with an alternate

juror. Thus, [Brown] has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability that,

but for counsel’s alleged error, the result of the proceeding would have

been different.

Br. Supp. Mot. Dismiss Ex. 5, at 2–3, ECF No. 8-5.

Brown has not established, nor can I find, as required under § 2254(d), that

the state court’s disposition of these claims was contrary to, or an unreasonable

application of, federal law, or based on an unreasonable determination of fact.

Brown complains that when asked during voir dire if he had any health issues or

impairments that would prevent him from giving full attention during trial, Juror

Smith should have informed the court about his tendency to nod off in warm rooms.

Brown contends that Juror Smith’s failure to admit this issue earlier impeached his

credibility and, presumably, undermined the reliability of the juror’s insistence that

he had been paying attention even if he had nodded off. The contention that Juror

Smith had a health issue or impairment preventing proper attentiveness has no basis

in fact from the record. Nor does the record indicate that this juror had been sleeping

in court. From the juror’s own explanation, his assurances that he had not missed

anything, and the judge’s personal observations of the jurors’ attention levels,

counsel could reasonably have determined that any further objection to the juror’s

continued service would not meet with success. Counsel is not ineffective for failing

to make a futile motion or argument. Moody v. Polk, 408 F.3d 141, 151 (4th Cir.

2005). Moreover, Brown has not articulated, let alone established, a reasonable

probability that the outcome of the trial would have been different if counsel had

made these desired objections and arguments.

In addition in Ground Two, Brown argues that after the court allowed Juror

Smith to continue serving, counsel should have lodged a contemporaneous objection

to preserve the issue for direct appeal. The state habeas court also rejected this claim

under Strickland’s prejudice element:

[Brown] does not allege, and the record does not establish, that had the

alleged error been preserved, there is a reasonable probability the Court

of Appeals [of Virginia] or [the Supreme Court of Virginia] would have

determined the trial court committed reversible error in not removing

Juror Smith from the jury panel, given the trial court’s observations of

the jurors’ attentiveness and Juror Smith’s sworn testimony that

although he had a tendency to nod off in a warm room, he had been

awake and paying attention the entire trial. Thus, [Brown] has failed to

demonstrate that there is a reasonable probability that, but for counsel’s

alleged error, the result of the proceeding would have been different.

Br. Summ. Mot. Dismiss Ex 5, at 3, ECF No. 8-5.

Brown has not established, nor can I find as required under § 2254(d), that the

state court’s disposition of this portion of Ground Two was contrary to, or an

unreasonable application of, federal law, or based on an unreasonable determination

of fact. Given the trial court’s factual findings that Smith had been attentive and

could continue to give attention to the proceedings, Brown has shown no reasonable

probability of a different outcome, had counsel lodged a formal objection. On this

record under § 2254(d), I must defer to the state court’s judgment and dismiss all

portions of Brown’s Ground Two.

Brown revisits the sleeping juror contention in Ground Three, where he faults

appellate counsel for failing to challenge on appeal the trial court’s handling of this

issue. Specifically, Brown asserts that counsel should have raised the due process

violation in Ground One under the “ends of justice exception” to Virginia Supreme

Court Rule 5A:18; and under the “plain error” doctrine. Pet. 21–22, ECF No. 1.

The state habeas court rejected these claims under Strickland’s prejudice

element:

The record, including [Brown’s] petition for appeal filed in the Court

of Appeals, the Court of Appeals’ per curiam order denying the appeal,

and the trial transcripts, demonstrates appellate counsel included an

assignment of error in the petition for appeal, contending the trial court

erred in failing to remove “a sleeping juror,” i.e. Juror Smith. The Court

of Appeals concluded this assignment of error was waived and declined

to consider it because the petition for appeal did not cite any legal

authority to support the assertion, as required by Rule 5A:12(c), and the

omission was significant. [Brown], however, does not allege, and the

record does not show, a reasonable probability that had counsel

complied with Rule 5A:12(c), and asked the Court of Appeals to invoke

the ends of justice exception, the result of [Brown’s] appeal would have

been different given the trial court’s observations of the jurors’

attentiveness and Juror Smith’s sworn testimony that although he had a

tendency to nod off in a warm room, he had been awake and paying

attention the entire trial. Thus, [Brown] has failed to demonstrate that

there is a reasonable probability that, but for counsel’s alleged error, the

result of the proceeding would have been different.

Br. Supp. Mot. Dismiss Ex. 5, at 10–11, ECF No. 8-5.

Brown has not shown any reasonable probability that counsel’s raising the

Ground One due process arguments under either of the proffered state law doctrines

would have resulted in a different outcome on appeal, given the state court’s findings

and the record as a whole. Thus, Brown has not demonstrated that the state court’s

ruling on this claim was contrary to, or an unreasonable application of, federal law,

or based on an unreasonable determination of fact. I must defer to the state court’s

judgment under § 2254(d), and dismiss Ground Three.

3. Prejudicial Questioning.

In Ground Five, Brown claims that counsel was ineffective for failing to ask

for a corrective jury instruction regarding the prosecutorial misconduct alleged in

Ground Four regarding questions a police officer could not ask Brown, who had

invoked his right not to be interviewed. Brown asserts that his counsel waited too

long to object and that without a curative instruction, counsel allowed jurors to

consider the prosecutor’s improper questions as “testimony.” Pet. 26, ECF No. 1.

The state habeas court rejected this claim under Strickland.

The record, including the trial transcripts, demonstrates [Brown] called

Officer Wetherell as a witness. [Brown’s counsel] elicited testimony

from Officer Wetherell concerning her observations of [Brown’s]

demeanor and numerous spontaneous statements he made to her while

she was stationed in his hospital room, where he was being treated after

the offenses occurred. On cross-examination, Wetherell indicated that

after she read [Brown] his Miranda rights,6 he declined to be

6 Miranda v. Arizona, 384 U.S. 436 (1966).

interviewed, so she never got to question him. The prosecutor then

asked Officer Wetherell the following questions:

Q. You didn’t ask [Brown] why he used the knife on an

unarmed woman . . .

A. No, ma’am.

Q. . . . . that was five foot four?

A. I did not ask him any questions.

Q. You didn’t ask him why he stabbed another woman in

the chest that was unarmed, did you?

A. No. He declined questioning.

Q. Did you ask him about stabbing another unarmed

person through the wrist?

A. No, ma’am.

Q. Did you ask him why he held Mac[k]enzie Gray at knife

point and allowed his wife to beat her . . .

A. No, ma’am.

Q. . . . . after she’d been stabbed three times?

A. No, ma’am.

Q. Did you ask him why he stood at the 7-Eleven door

guarding the door and barring it so other people couldn’t

get in?

A. No, ma’am.

At that point, [Brown’s] counsel objected on the basis that the

questioning was argumentative. The trial court sustained the objection

and stated, “She’s made it clear that [Brown] did not give any

statements.” Counsel did not seek a limiting or curative instruction

regarding any testimony from Officer Wetherell.

However, [Brown] does not allege, and the record does not show,

a reasonable probability that had counsel objected sooner or requested

a limiting or curative instruction the result of [Brown’s] trial would

have been different.

Br. Supp. Mot. Dismiss Ex. 5, at 3–4, ECF No. 8-5. After a lengthy summary of the

other trial evidence, the state court found that Brown could not meet the prejudice

element of the Strickland standard.

Given the overwhelming evidence of [Brown’s] guilt, [Brown]

cannot show a reasonable probability that had counsel objected sooner

to the prosecutor’s questioning of Wetherell or requested a curative

instruction, the outcome of [Brown’s] trial would have been different.

Thus, [Brown] has failed to demonstrate that there is a reasonable

probability that, but for counsel’s alleged error, the result of the

proceeding would have been different.

Id. at 6.

Should counsel have objected more quickly to the prosecutor’s questions?

Should the court have directed the jurors not to consider the prosecutor’s questions

to the officer? Perhaps. But the jury had already heard and seen extensive evidence

of Brown’s use of a knife against unarmed young people — testimony from the

surviving victims and their companions, other witnesses, photographs, and

surveillance camera video footage. On that record, I cannot find that the state court’s

ruling on this claim was contrary to, or an unreasonable application of, federal law,

or based on an unreasonable determination of fact. Therefore, I must defer to the

state court’s judgment under § 2254(d) and dismiss Ground Five.

Brown raises a similar contention in Ground Six, claiming that his appellate

counsel was ineffective in filing to present on appeal the due process and Fifth

Amendment violations alleged in Ground Four. Admitting that these violations had

not been preserved for appeal, he asserts that appellate counsel should have argued

for application of the “ends of justice exception” to Supreme Court of Virginia Rule

5A:18. Pet. 28, ECF No. 1.

The state habeas court rejected this claim, holding that it satisfied neither the

performance nor the prejudice element of Strickland. The state court properly

applied federal law holding that “the selection of issues to address on appeal is left

to the discretion of appellate counsel, and counsel need not address every possible

issue on appeal.” Br. Supp. Mot. Dismiss Ex. 5, at 11, ECF No. 8-5 (citing Jones v.

Barnes, 463 U.S. 745, 751–52 (1983)). It is well established that “appellate counsel

is given significant latitude to develop a strategy that may omit meritorious claims

in order to avoid burying issues in a legal jungle,” and that “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.” Burket

v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000).

Furthermore, I agree with the state court that Brown has “fail[ed] to articulate

or provide any argument to show a reasonable probability that had the argument he

suggests been made on appeal, the result of his appeal would have been different.”

Br. Supp. Mot. Dismiss Ex. 5, at 11, ECF No. 8-5. The questions the prosecutor

asked did not introduce new or extraneous concepts. Rather, these questions go to

the heart of this case, questions that the video footage triggers in any viewer.

Furthermore, Brown had an opportunity to counter address these questions when he

testified. And as the body tasked with determining credibility and finding facts, the

jury found against Brown’s theory that he was justified in defending his wife by

wielding his knife. Brown has not demonstrated that the state court’s determination

of this claim was contrary to, or an unreasonable application of, federal law, or based

on an unreasonable determination of fact. I will dismiss Ground Six.

4. Closing Argument Statements.

In Ground Seven, Brown claims that his trial counsel was ineffective when he

failed to object to improper comments the prosecutor made in closing arguments

during the guilt phase of the trial, and failed to correct the improper comments during

the defense closing. In the first portion of this ground, Brown recognizes that one

of the state court’s instructions to the jury was that they could “infer malice due to

[a] deadly weapon.”7 Pet. 15, ECF No. 1. Brown claims that the prosecutor, while

7 As the Court of Appeals of Virginia noted,

holding the “deadly weapon” up in front of the jury, “falsely characterized” this

instruction by stating: “Lethal force, malice inferred with a deadly weapon. I think

you can call this instead of a knife, let’s just call it malice.” Id. at 30–31. Brown

faults counsel for failing to object to this prosecutorial action as a due process

violation and failing to request a curative instruction.

The state habeas court rejected this claim, finding that Brown had not satisfied

either element of Strickland.

The record, including the trial transcripts and the jury instructions,

demonstrates the jury was instructed before closing arguments that

“[y]ou may infer malice from the deliberate use of a deadly weapon

unless, from all the evidence, you have a reasonable doubt as to whether

malice existed.” In the context of the jury instruction and the

prosecutor’s closing argument, counsel reasonably could have

concluded the prosecutor was arguing a permissible inference to the

jury, and that no objection or correction was proper. Further, counsel

reasonably could have concluded that objecting would serve no purpose

but to emphasize this portion of the prosecutor’s closing argument in

the jurors’ minds. Such reasonable tactical decisions “should not be

second-guessed in habeas corpus.” Morva v. Warden, 285 Va. 511, 516

(2013). Furthermore, [Brown] does not allege, and the record does not

show, a reasonable probability that had counsel corrected or objected

to the prosecutor’s statement, the result of [Brown’s] trial would have

been different. . . . [T]he Commonwealth’s evidence of [Brown’s] guilt

was overwhelming. Thus, [Brown] has failed to demonstrate that

Malice “is of the essence of murder. It is the element that

distinguishes it from manslaughter.” Moxlev v. Commonwealth, 195 Va.

151, 157 (1953). “To reduce a homicide from murder to voluntary

manslaughter, the killing must have been done in the heat of passion and

upon reasonable provocation.” Barrett v. Commonwealth, 231 Va. 102, 105–

06 (1986).

Br. Supp. Mot. Dismiss Ex. 2, at 6 n.4, ECF No. 8-2.

counsel’s performance was deficient or that there is a reasonable

probability that, but for counsel’s alleged error, the result of the

proceeding would have been different.

Br. Supp. Mot. Dismiss Ex. 5, at 7–8, ECF No. 8-5.

I agree with the state court that counsel could reasonably have believed that

the challenged statement was a permissible inference from the underlying

instruction. Or counsel could also reasonably have decided, for strategic reasons,

not to object to avoid calling juror’s attention to the statement in a way not

advantageous to Brown. Strickland, 466 U.S. at 690–91 (“strategic choices made

after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable”); Moore v. United States, 934 F. Supp. 724, 727 (E.D.

Va. 1996) (“Many objections, while not lacking in technical merit, are either not

worth making or may reasonably be viewed as likely to cause more harm if made

than if foregone.”) (citing other cases). Brown has not demonstrated that the state

court’s determination of this claim was contrary to, or an unreasonable application

of, federal law, or based on an unreasonable determination of fact. I will dismiss

this portion of Brown’s federal habeas Ground Eight.

Another portion of Ground Eight asserts ineffective assistance related to

another two sections of the prosecutor’s closing argument at the guilt phase. Brown

accuses the prosecutor of violating due process by “deliberately inflame[ing] the

jurors’ passion by invoking ‘sense of community’ in such a manner as to utilize

[Brown’s] prior record . . . to procure the judgment of the jury” during the guilty

phase. Pet. 31, ECF No. 1. After describing the three lethal stab wounds that Brown

inflicted on Gray, the prosecutor stated:

It looks like something you’d see in a war zone, not right here in the

City of Harrisonburg. Remember, this is a public place. This is your

town. This is Harrisonburg. This didn’t happen in some far off place

that you heard about on the news and you’re like my God, what’s going

on there. That’s like a mile up the street, right here, right here, your

community. Look at this, Commonwealth’s #2, they’re spread out. It

looks like a terrorist attack. It looks terrible.

Id. at 31–32. Several minutes later, during rebuttal argument, the prosecutor

followed up on this community theme:

[I] know I’m taking a lot of your time and this is it and you won’t hear

from me again until I hope I see you again at sentencing, if I could say

one thing to you, if I can say one thing to Mackenzie Gray if she was

sitting right here, Commonwealth’s #132, I would say this. I would say

I’m sorry, I want to apologize to you. I want to apologize to you on

behalf of the criminal justice system because no matter what we do

today we failed you. Even though it’s not my personal thought, we

failed, Mackenzie, because this man was free with twenty-one felonies

and twenty-six crimes of lying, cheating or stealing he was walking the

streets of Harrisonburg. We failed, me, the criminal justice system

already failed Mackenzie Gray and as a result this violent killer was on

the streets of Harrisonburg that night.

Id. at 32.

After reviewing these same sections of the closing, the state habeas court

rejected Brown’s ineffective assistance claim under the prejudice element of

Strickland.

[Brown], however, does not allege, and the record does not show, a

reasonable probability that had counsel objected to the prosecutor’s

statements or requested a curative instruction the result of [Brown’s]

trial would have been different. As previously stated, the

Commonwealth’s evidence of [Brown’s] guilt was overwhelming.

Additionally, the record, including the trial transcripts, demonstrates

[Brown] testified in his own defense and acknowledged on cross-

examination that he had been previously convicted of twenty-one

felonies and twenty-six crimes involving lying, cheating or stealing.

Thus, [Brown] has failed to demonstrate that there is a reasonable

probability that, but for counsel’s alleged error, the result of the

proceeding would have been different.

Br. Supp. Mot. Dismiss Ex. 5, at 9, ECF No. 8-5.

Brown has not demonstrated, nor can I find, that the state court’s

determination of this claim was contrary to, or an unreasonable application of,

federal law, or based on an unreasonable determination of fact. As the summary of

the Commonwealth’s case against Brown reflects, the evidence of his guilt was

overwhelming. Thus, the state court’s finding that Brown failed to establish

Strickland prejudice was reasonable. I will dismiss this portion of Brown’s federal

habeas Ground Eight.

In Ground Nine, Brown claims ineffective assistance from his appellate

counsel for failing to challenge on appeal the prejudicial statements during closing

arguments. Again, Brown admits that the claims were not properly preserved for

appeal, but he faults counsel for failing to assert “plain error” by the trial court and

invoke the “ends of justice exception” to Supreme Court of Virginia Rule 5A:18.

Pet. 36, 37, ECF No. 1.

The state habeas court rejected this claim under Jones, 463 U.S. at 751–52,

citing appellate counsel’s duty and discretion to be selective in deciding on appeal

claims. The state court also held that Brown had failed “to articulate or provide any

argument to show a reasonable probability that had the argument he suggests been

made on appeal, the result of his appeal would have been different.” Br. Supp. Mot.

Dismiss Ex. 5, at 12, ECF No. 8-5. Accordingly, the state court held that he had not

demonstrated either deficient performance by appellate counsel or resulting

prejudice under Strickland. I cannot find this disposition unreasonable in any

respect. See Burket, 208 F.3d at 189 (regarding importance of counsel’s obligation

to pursue only strongest claims on appeal). Under § 2254(d), I will dismiss Ground

Nine.

C. Insufficiency of the Evidence.

1. The Standard of Review.

Sufficiency of the evidence to support a state court conviction beyond a

reasonable doubt is a constitutional due process claim. Jackson v. Virginia, 443 U.S.

307, 322 (1979). The evidentiary standard for such a claim is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. at 319. Since Congress enacted § 2254(d) as part of AEDPA, the

Supreme Court has made it clear that

Jackson claims face a high bar in federal habeas proceedings because

they are subject to two layers of judicial deference. First, . . . “it is the

responsibility of the jury — not the [habeas] court — to decide what

conclusions should be drawn from evidence admitted at trial. A

reviewing court may set aside the jury’s verdict on the ground of

insufficient evidence only if no rational trier of fact could have agreed

with the jury.” Cavazos v. Smith, 565 U.S. 1, ___, 132 S. Ct. 2, 4,

(2011) (per curiam). And second, on habeas review, “a federal court

may not overturn a state court decision rejecting a sufficiency of the

evidence challenge simply because the federal court disagrees with the

state court. The federal court instead may do so only if the state court

decision was ‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett,

559 U.S. 766, ___, 130 S. Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651 (2012). In other words, even when

“[r]easonable minds reviewing the record might disagree” about the state courts’

rulings on sufficiency, “on habeas review that does not suffice to supersede” those

rulings under the deference demanded by § 2254(d). Rice v. Collins, 546 U.S. 333,

341–42 (2006). To grant relief on a § 2254 habeas claim that centers on factual

issues, such as a sufficiency of the evidence challenge, “a federal habeas court must

find the state-court conclusion ‘an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.’” Id. at 339 (citing §

2254(d)(2). In making this determination under § 2254(d), the federal court may not

“use a set of debatable inferences to set aside the conclusion reached by the state

court.” Id. at 342.

As stated, Brown challenged the sufficiency of the evidence in several respects

on direct appeal. The Court of Appeals of Virginia denied relief on the claims in a

detailed, eleven-page per curium Order. In denying Brown’s subsequent appeal, the

Supreme Court of Virginia did not issue an opinion. Accordingly, this court “looks

through” the Supreme Court of Virginia’s refusal of the appeal and reviews the last

reasoned opinion addressing the issue — from the Court of Appeals of Virginia. Ylst

v. Nunnemaker, 501 U.S. 797, 804 (1991).

2. Brown’s Sufficiency Claims.

In Ground Ten, Brown asserts that the evidence was insufficient to support his

convictions. He insists that the video evidence played to the jury during trial “clearly

depicts exactly what . . . transpired on that horribly tragic evening,” and asks the

court to view the video “in its entirety, in real time.” Pet. 38, ECF No. 1. Liberally

construing the Petition,8 Brown alleges these somewhat overlapping claims that the

evidence was not sufficient: (a) it did not support the finding of malice as a necessary

element of the offenses of first-degree murder, attempted first-degree murder, and

malicious wounding; (b) it did not prove that Brown shared any criminal intent with

his wife to abduct Gray, so as to sustain a conviction of principal in the second degree

8 Brown stated that in support of Ground Ten, he had submitted a “Memorandum In

Support Of ‘Ground Ten’ of Habeas Petition.” Pet. 41, ECF No. 1. That promised

memorandum regarding Ground Ten was not attached to the Petition when Brown filed it

with the court, and he did not provide a copy of it to the respondent until after the Motion

to Dismiss had been filed. The memorandum is attached to Brown’s Response in

Opposition, ECF No. 13. Therefore, I have reviewed the arguments that it presents, and I

find that it does not raise any habeas claims different from those raised in the Petition itself.

to abduction; and (c) it did not show premeditation because Brown’s testimony and

the video evidence prove that he “reacted in ‘heat of passion’ and only acted to

‘protect his wife,’ who was under violent, unlawful attack,” while he and Carla

“were both voluntarily intoxicated ,well beyond established legal limit.” Id. at 40–

41.

a. Evidence of Malice.

The Court of Appeals of Virginia addressed and rejected this aspect of

Brown’s sufficiency claim on the merits:

“Malice inheres in the ‘doing of a wrongful act intentionally, or

without just cause or excuse, or as a result of ill will.’” Tizon v.

Commonwealth, 60 Va. App. 1, 11 (2012) (quoting Dawkins v.

Commonwealth, 186 Va. 55, 61 (1947)). Furthermore, “[malice may

be inferred from the deliberate use of a deadly weapon.” Luck v.

Commonwealth, 32 Va. App. 827, 834 (2000). “[M]alice is implied by

law from any deliberate, willful, and cruel act against another, however

sudden.” Epperly [v. Commonwealth, 224 Va. 214, 231 (1982)]. “In

order to determine whether the accused acted in the heat of passion," as

opposed to with malice, “it is necessary to consider the nature and

degree of provocation as well as the manner in which it was resisted.”

Id. (quoting Miller v. Commonwealth, 5 Va. App. 22, 25 (1987)).

“Whether malice existed is a question for the fact finder.” Robertson

v. Commonwealth, 31 Va. App. 814, 823 (2000).

. . . [T]he evidence showed that Brown, Gray, and Smith argued

and that the argument turned into a physical altercation. Gray and

[Carla] were on the ground with Gray on top of [Carla]. Neither woman

possessed a weapon. However, instead of trying to separate the fighting

women, [Brown], after saying he was going to “kill a bitch” or

“bitches,” pulled out a knife and forcefully stabbed Gray in the neck

and torso, killing her. [Brown] also stabbed Gray’s unarmed

companions, Reed and Barnhardt.

[Brown’s] statements and willful and measured acts of arming

himself with the deadly weapon during the incident, then stabbing the

unarmed victims indicated a “deliberate mind and formed design”

rather than “impulse without conscious reflection.” See, e.g., Graham

v. Commonwealth, 31 Va. App. 662, 672 (2000) (finding the evidence

insufficient to justify a heat of passion instruction where the defendant

testified that he “consciously abandoned his escape, armed himself, and

started shooting,” and thus “acted upon reflection and deliberation”

rather than “on sudden provocation or from passion”). Here, the jury

acted as a reasonable fact-finder in rejecting [Brown’s] claim that he

was provoked into introducing a deadly weapon into the situation and

stabbing three unarmed people. Consequently, the evidence was

sufficient to show that [Brown] acted with malice during the incident.

Br. Supp. Mot. Dismiss Ex. 2, at 6–7, ECF No. 8-2.

Brown’s arguments for relief on his insufficient evidence claims rely on the

video evidence and primarily track counsel’s closing argument for the defense,

recounting Brown’s version of his actions. Brown contends that the state courts

“relied almost exclusively on the testimony” of Gray’s companions which did not

track events precisely, when compared to the video. Resp. Opp’n 22, ECF No. 13.

Brown characterizes the testimony of Barnhardt, Reed, Valentine, and Smith as

“largely fabricated.” Id. at 23. Brown notes, “Not many people consider a 3-½”

pocket knife as a ‘deadly weapon.” Id. at 28. Brown also challenges the credibility

of the inmate witnesses.

The video footage, which Brown calls “irrefutable evidence of exactly what

happened,” includes no audio from the incident. Id. at 23. Thus, the video alone

does not discredit witness testimony about statements Brown made during the

encounter. As for the inmate witnesses, the state court referred to this testimony

merely as “consistent” with other witness accounts “that prior to the incident

[Brown] had stated that he was going to ‘kill’ or ‘get’ those people involved in the

disagreement at the Golden Pony.” Br. Supp. Mot. Dismiss Ex. 2, at 4 n.1, ECF No.

8-2.

Even if I believed Brown’s version of events to be the most accurate account

of the melee depicted in the video footage, my reaching a different conclusion on

sufficiency that the court of appeals, or believing its decision to be incorrect, would

not support a ruling in Brown’s favor. Under the deference mandated by § 2254(d),

to grant habeas relief on Brown’s sufficiency challenges, I would have to find that

the state courts’ decisions on those claims were objectively unreasonable — that

they lacked justification “beyond any possibility for fairminded disagreement.”

Mays, 141 S. Ct. at 1149.

I cannot reach that conclusion here. After viewing the video, I agree that the

jury acted as a reasonable fact finder in finding beyond a reasonable doubt that

Brown acted with malice during the altercation. At the most, Brown’s opposition

arguments present alternative and debatable interpretations of the evidence of

malice. But “fairminded disagreement” in inferring facts from evidence is not

sufficient to prove that the jurors’ decisions, or the state court’s factual findings

about the bases for those decisions, were objectively unreasonable as required under

§ 2254(d). Id. Thus, I cannot find that the state appellate courts rested their rejection

of Brown’s sufficiency claim regarding malice on an unreasonable determination of

the facts from the evidence presented.

In finding the evidence sufficient to support the convictions, the court did not

apply the law unreasonably, either. It accepted as true all evidence favorable to the

Commonwealth, and all inferences reasonably drawn from that evidence. Because

the state court applied the correct standard of law, as set out in Jackson, the state

court decision is not contrary to federal law. I will dismiss Brown’s claim in Ground

Ten alleging that his actions did not support a finding of malice.

b. Principal in the Second Degree to Abduction.

Brown also asserts an insufficiency claim as to his conviction of being a

principal in the second degree to abduction, alleging that no evidence proved that he

or Carla had criminal intent to abduct Gray. He raised a similar assertion in his

petition for appeal, but the court of appeals found that his petition did “not contain

an assignment of error for this argument.” Br. Supp. Mot. Dismiss Ex. 2, at 7 n. 5,

ECF No. 8-2. The court noted,

“Only assignments of error assigned in the petition for appeal will

be noticed by this Court.” Rule 5A:12(c)(l)(i). An issue that is not part

of appellant’s assignment of error in the petition for appeal is

considered waived. See Simmons v. Commonwealth, 63 Va. App. 69,

75 n.4 (2014). Therefore, we do not address this argument.

Id. Brown argues that I should address his federal claim of insufficient evidence on

this issue on the merits because the Court of Appeals of Virginia failed to do so.

I cannot agree. Because the state court has explicitly denied this claim based

on a state procedural rule, namely Rule 5A:12(c), the claim is also procedurally

defaulted for purposes of federal habeas review. Breard, 134 F.3d at 619); Escalante

v. Watson, 488 F. App’x 694, 699 (4th Cir. 2012) (unpublished) (finding that

Virginia rule requiring assignments of error in appellate petitions is independent and

adequate state law ground for purposes of procedural default). Brown has not

demonstrated cause and prejudice for his default of this claim in his petition for

appeal. Therefore, I will dismiss this claim as procedurally barred.

c. Premeditation and Intent to Kill.

Brown asserts that he acted in the heat of passion to defend his wife when he

stabbed Gray and Reed, not with premeditation or intent to kill either of them. The

Court of Appeals of Virginia found the evidence of premeditation sufficient to

support the first-degree murder and attempted murder convictions.

[Virginia] Code § 18.2-32 provides, in relevant part, that

“[m]urder . . . by any willful, deliberate, and premeditated killing . . . is

murder of the first degree.” “An attempt is composed of two elements:

the intent to commit the crime, and a direct, ineffectual act done

towards its commission.” Parsons v. Commonwealth, 32 Va. App. 576,

582 (2000).

“To premeditate means to adopt a specific intent to kill, and that

is what distinguishes first and second degree murder.” Kirbv v.

Commonwealth, 50 Va. App. 691, 700 (2007) (quoting Remington v.

Commonwealth. 262 Va. 333, 352 (2001)). Such intent “need not exist

for any specified length of time prior to the actual killing; the design to

kill may be formed only a moment before the fatal act is committed

provided the accused had time to think and did intend to kill.”

Remington, 262 Va. at 352 (quoting Weeks v. Commonwealth, 248 Va.

460, 477 (1994)); see Epperly v. Commonwealth, 224 Va. 214, 231

(1982) (“It is the will and purpose to kill, not necessarily the interval of

time, which determine the grade of the offense.”). Circumstantial

factors related to the killing itself can support a reasonable inference of

premeditation. Avent v. Commonwealth, 279 Va. 175, 208 (2010)

(quoting Epperly, 224 Va. at 232).

The evidence showed that a verbal confrontation occurred

between [Carla] and others at a convenience store. The confrontation

quickly escalated to a physical fight. [Brown] threatened to “kill all of

these bitches tonight” and that “one of you bitches is going to die.”

Despite attempts by Valentine and Barnhardt to diffuse the situation,

[Brown] stabbed Reed and Barnhardt. [Brown] then also stabbed the

defenseless Gray, inflicting wounds more than three inches deep into

her neck and torso, ultimately killing her. No evidence indicated that

anyone other than [Brown] brandished a knife during the incident.

Furthermore, after the knife attacks, [Brown] “guarded” [Carla] while

she beat the mortally wounded Gray inside the convenience store.

In addition to the testimony of the witnesses, the jury viewed

numerous surveillance video recordings and still photographs made

from the video recordings and taken at the scene of the crimes.

The jury could reasonably infer that [Brown] intended to kill

Gray from the scope and degree of the injuries suffered by Gray,

[Brown’s] statements that he was going to kill one or all of the

“bitches,” and [Brown’s] repeated, forceful stabbing to Gray’s neck and

torso as she was held by her hair, defenseless, and unarmed.

Furthermore, a reasonable jury could infer from [Brown’s] statements

and conduct of stabbing Reed in the chest and back of her head that he

also acted with the intent to kill Reed. Additionally, [Brown] admitted

that he is a “strong man,” and the videos showed that [Brown] was

large. Further, he stabbed both women multiple times. See Avent, 279

Va. at 208 (noting that the brutality of the attack, the number of blows,

and disparity in strength between the defendant and the victim can

support a reasonable inference of premeditation). Moreover, the jury

could reasonably find that [Brown] lacked remorse for his crimes when

he shouted, “Mother fuckers. You mother fuckers,” and “Mother

fucking bitch” at the scene. See Epperly, 224 Va. at 232 (observing that

a fact finder may infer the accused’s premeditation from lack of

remorse). The jury, in its role as the trier of fact, was entitled to

disbelieve [Brown’s] explanations that he tried to “diffuse” the

situation and did not intend to hurt anyone. See Flanagan v.

Commonwealth, 58 Va. App. 681, 702 (2011) (“In its role of judging

witness credibility, the fact finder is entitled to disbelieve the self-

serving testimony of the accused and to conclude that the accused is

lying to conceal his guilt.” (quoting Marable v. Commonwealth, 27 Va.

App. 505, 509–10 (1998))). Accordingly, the evidence was sufficient

to prove beyond a reasonable doubt that [Brown] committed first-

degree murder and attempted first-degree murder.

Br. Supp. Mot. Dismiss Ex. 2, at 4–6, ECF No. 8-2 (footnotes omitted).

In Brown’s response, he faults the state court’s finding that he showed lack of

remorse at the scene when he shouted profanities. Brown blames these statements

on pain and other effects from head injuries he had received during the altercation.

He emphasizes that when he made the statements, he did not yet know how severely

his blows had injured anyone or that Gray had died. He points to testimony from a

police officer that when Brown learned of Gray’s death, he “wailed . . . . He was

crying, he was emotional.” Resp. Opp’n 27, ECF No. 13. Brown asserts that [a]ny

reasonable person would conclude that [he] had remorse” over Gray’s death. Id.

Brown also denies any attempt on his part to deceive police after the incident.

He asserts that when he told police he had been stabbed, he was suffering from a

head injury and believed he had been stabbed. He also claims to have seen Smith in

possession of a “purple handled knife” at some point during the encounter. Id. at 28.

Finally, Brown contends that viewing the video “in ‘real time’ disproves the alleged

facts” on which the state courts rejected his sufficiency of the evidence challenges.

Id. He asserts, as he did during his trial testimony, that the video shows him reacting

to the assault on his wife in the heat of passion and not with any premeditated intent

to kill.

Reviewing the record as a whole, I find that the evidence supported reasonable

inferences of Brown’s premeditation and intent to kill. To find these elements, jurors

did not have to believe the inmate witnesses or to find that Brown failed to show

remorse.9 The video shows that Brown had opportunity during the altercation to

pause and assess, to use words and his physical strength to try to separate the

unarmed combatants, to try to convince Carla to leave and not to enter the store after

he already fatally injured Gray. Brown chose another course of action when he took

out and forcefully used his knife multiple times and when he followed Carla into the

store and blocked interference with her continued assault on Gray. Jurors also could

infer premeditation and intent to kill from the forcefulness of Brown’s stabbing

motions, his repeated stabs of Reed and Gray in vital locations, and the depth of the

9 In finding sufficient evidence of premeditation, the Court of Appeals of Virginia

did not discuss Brown’s voluntary intoxication. The trial court instructed the jury on this

aspect of Brown’s defense, but the jury could reasonably have found from his actions

depicted on the video that he was not so intoxicated that he was unable to premeditate or

formulate the intent to kill Gray and Reed.

stab wounds on all the victims. Brown simply fails to show that the state courts’

rejection of his heat of passion theory and their finding of sufficient evidence of

premeditation lacked justification “beyond any possibility for fairminded

disagreement.” Mays, 141 S. Ct. at 1149. Thus, he has not shown that the state

courts’ rulings were based on an unreasonable determination of the facts in light of

the evidence. Under § 2254(d), I will dismiss the premeditation portion of Ground

Ten.

III. CONCLUSION.

For the stated reasons, I will grant the respondent’s Motion to Dismiss.

I decline to issue a certificate of appealability because Brown has not made a

substantial showing of the denial of a constitutional right and reasonable jurists

would not find the court’s procedural ruling to be debatable or wrong.

A separate Final Order will be entered herewith.

DATED: March 31, 2023

/s/ JAMES P. JONES

Senior United States District Judge