2254 MEMORANDUM OPINION
SAMUEL G. WILSON, District Judge.
This is a habeas petition by Ira Wayne Cloniger pursuant to 28 U.S.C. § 2254, challenging his 2007 first-degree murder conviction in the Circuit Court of Rappahannock County, Virginia. A review of the state court records shows that Cloniger never raised on direct appeal of his conviction to the Supreme Court of Virginia any federal constitutional claim, and that although he filed a petition for writ of habeas corpus in the Circuit Court of Rappahannock County, Virginia, that court dismissed his petition on the merits, and Cloniger failed to file a timely appeal to the Supreme Court of Virginia. Under the circumstances, all of Cloniger's claims that might be cognizable in federal habeas are unexhausted and procedurally defaulted, and the court dismisses his petition.
While on bond for malicious wounding for stabbing one victim, Cloniger stabbed another. According to the Commonwealth's evidence, as the victim, Edward Carelton Fletcher, Jr., lay dying and gasping for breath, Cloniger kicked and urinated on him. (Trial Tr. vol. 1, 224-25, Jan. 22, 2007.) At trial, Cloniger did not deny stabbing Fletcher, but rather claimed that he was enraged because Fletcher had just raped his girlfriend. The jury found Cloniger guilty of first-degree murder, and the Circuit Court sentenced him to life imprisonment. Cloniger appealed to the Court of Appeals of Virginia, raising purely state-law claims; that court denied his appeal, and the Supreme Court of Virginia refused his petition for writ of error. Cloniger, in turn, filed a petition for writ of habeas corpus in the Circuit Court of Rappahannock County. That court dismissed his petition on the merits, and Cloniger failed to file a timely appeal to the Supreme Court of Virginia.
Very liberally construed, Cloniger's habeas petition in this Court raises four claims: (1) he was denied the right to confront and cross-examine a witness; (2) the prosecution engaged in misconduct in claiming at trial that Cloniger kicked and urinated on the victim as the victim was gasping for breath and dying;
Cloniger has raised none of his current federal habeas claims (which, liberally construed, are based on federal law
To show cause, Cloniger must demonstrate that there were "objective factors," external to his defense, impeding him from raising his claim at an earlier stage.
The "miscarriage of justice" exception is a narrow exception to the cause requirement. A habeas petitioner falls within this narrow exception if he can demonstrate that a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense.
In determining whether Cloniger has met this standard, this court, as a habeas court, "must consider `all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under the `rules of admissibility that would govern at trial.'"
Here, Cloniger offers nothing as cause and prejudice to excuse his procedural default and suggests nothing that even remotely satisfies the miscarriage of justice exception's requirement that Cloniger produce new evidence of such a character that, had it been produced at trial, it is more likely than not that no reasonable juror would have convicted him of first-degree murder.
For the reasons stated, the court dismisses Cloniger's petition.