MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Jonathan Ashley Agee, a Virginia prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the sentences imposed by the Circuit Court for Montgomery County. Respondent filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court grants the motion to dismiss and dismisses the habeas petition.

I.

A.

While a deputy of the Franklin County Sherriff but not in uniform, Petitioner drove his police car from Franklin County, Virginia, into a gas station's parking lot in Roanoke City, Virginia, at approximately 11:28 a.m. on May 30, 2011. Petitioner turned the car's police lights on, which activated the car's dashcam, and parked near Jenny Agee, his ex-wife. Jenny's last words were, "He's going to shoot me," as she watched Petitioner exit the car and carry an M4 Carbine semi-automatic assault rifle toward her. Jenny had no chance to escape, surrounded by parked cars and a high concrete wall and with Petitioner and his assault rifle fifteen feet away.

Petitioner shot Jenny eight times. The most likely fatal shot was in her back. Bystanders at the gas station watched Petitioner walk back to his police car and drive away before rushing to aid Jenny. Despite their best efforts, Jenny was pronounced dead before noon that Saturday of Memorial Day weekend in 2011.

Also by noon, Virginia State Police Sergeant Matthew Brannock was returning home from his shift to celebrate his thirty-sixth birthday with his parents, wife, and two children when he saw Petitioner driving toward him in the opposite direction along route 460. Sgt. Brannock immediately turned around and pursued him. Sgt. Brannock followed Petitioner, bumper to bumper, as Petitioner weaved through dense holiday traffic on Interstate 81 in Montgomery County, Virginia, at speeds up to 120 miles per hour.

Sgt. Brannock pulled alongside Petitioner when traffic briefly cleared. Petitioner's car sideswiped Sgt. Brannock's car, but Petitioner regained control and stopped the car quickly. Sgt. Brannock's car, however, slid further down the interstate, stopping across the right lane with its trunk toward the guard rail and its hood toward the median, giving Petitioner full sight of the driver side door.

As soon as his car stopped, Sgt. Brannock reported to dispatch, grabbed his pistol, and opened the driver's door in full view of Petitioner. Sgt. Brannock explained:

(Sent. H'rg Tr. 56-80.)

Sgt. Brannock crawled back up that embankment and survived his thirty-sixth birthday. Shrapnel from the first bullet stopped too closely to an artery to remove, and the second bullet lodged into his pelvic bone.

After Sgt. Brannock had survived by jumping over the guardrail, Petitioner had briefly walked toward Sgt. Brannock's car, saw nothing moving, and then returned to his car. Petitioner drove his damaged car a short distance down the interstate before parking at the top of the next exit ramp.

Sgt. Becky Curl was driving past Sgt. Brannock's shot-up, abandoned car when she came upon a red car that had its back window shot out from one of Petitioner's bullets. The driver told her that a deputy's police car drove past, and after driving a little farther up the interstate, Sgt. Curl and another trooper found Petitioner standing outside his car parked at the top of the exit ramp. Sgt. Curl recounted:

(Id at 158-63.)

Sgt. Curl heard Petitioner's shots flying past her as she fell to the ground and rolled to her right. Once the shooting stopped, Sgt. Curl cautiously approached Petitioner's bloodied body lying on the road and on top of the rifle. She retrieved the rifle and began emergency medical treatment for the significant bullet wound to Petitioner's chest. Sgt. Curl likely saved Petitioner's life by rolling him on his side to prevent him from choking on the blood draining out of his mouth, and as he lay there, Petitioner complemented Sgt. Curl on her police work: "You did a good job. I was going to kill you."

B.

Petitioner pleaded nolo contendere ("no contest") to murder in the first degree and use of a firearm for his acts in Roanoke City. Petitioner also pleaded no contest to attempted capital murder of a law enforcement officer, aggravated malicious wounding, use of a firearm during the commission of a felony, and felony eluding for his acts in Montgomery County. These pleas were pursuant to two written plea agreements with the Commonwealth's Attorneys for Roanoke City and for Montgomery County. The plea agreements recited that the Commonwealth's Attorney for Montgomery County would nolle pros one charge using a firearm in the commission of a felony and that Commonwealth's Attorney for Roanoke City would nolle pros three charges of shooting into an occupied vehicle. The Plea Agreement with the Commonwealth's Attorney for Roanoke City also noted that the government would seek the maximum penalty — life imprisonment plus three years — for the crimes charged in Roanoke.

During his plea colloquy in the Circuit Court for Montgomery County, Petitioner testified that he understood the charges, discussed the charges and their elements with counsel, and had enough time to speak with counsel about any possible defenses. Notably, Petitioner testified that he was entirely satisfied with counsel's services by that time and that pleading no contest was his own decision. Petitioner acknowledged that, by pleading no contest, he waived all nonjurisdictional claims and defenses and the rights to defend himself, to a jury trial, and to confront witnesses. Petitioner also testified that the plea agreement constituted the entire agreement and that no one had made any promises to him other than what was described in the plea agreement.

On May 7 and 8, 2013, a joint sentencing hearing for the convictions from both circuit courts was held by the Circuit Court for Roanoke City. As mitigation evidence, Petitioner played a lengthy video deposition of a professor of psychiatry from Harvard Medical School, who after interviewing Petitioner, his parents, and his wife, gave the opinion that the murder would not have happened but for Petitioner's "roid rage" from using anabolic steroids. The circuit court was not swayed by the testimony and sentenced Petitioner to life imprisonment plus eight years for the attempted murder, aggravated malicious wounding, felony eluding, and use of a firearm in Montgomery County. Petitioner did not appeal.

C.

The Supreme Court of Virginia dismissed Petitioner's first habeas petition without prejudice because it improperly challenged convictions from both circuit courts. The Supreme Court of Virginia accepted Petitioner's second petition that challenged just the convictions from the Circuit Court for Montgomery County and ordered Petitioner's warden to respond. After considering the warden's motion to dismiss, the Supreme Court of Virginia dismissed the second habeas petition.

Thereafter, Petitioner timely filed the federal petition. Petitioner presents the following four main claims about his convictions from Montgomery County:

a. Violating the Double Jeopardy Clause; and

b. Asking for a life sentence after agreeing to a thirty-five year sentence. Respondent argues that these claims are either procedurally defaulted or meritless, and after reviewing the record, the court agrees. Accordingly, Respondent's motion to dismiss is granted, and the petition is dismissed.

II

A.

The court finds that claims 3(a), 3(b), and 3(f) are unexhausted. 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 O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The state habeas record reveals that Petitioner did not present these claims to the Supreme Court of Virginia.

B.

The unexhausted claims 3(a), 3(b), and 3(f) must be treated as procedurally defaulted. "A claim that has not been presented to the highest state court nevertheless may be treated as 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 v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)). "[T]he exhaustion requirement for claims not fairly presented to the state's highest court is technically met when . . . a state procedural rule would bar consideration if the claim was later presented to the state court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (citations omitted), overturned on other grounds by Miller-El v. Dretke, 545 U.S. 231, 241 (2005).

Although presented to the Supreme Court of Virginia, claims 1, 2(b), 2(c), 3(e), 3(g), and 4(b) must also be treated as procedurally defaulted. A petitioner procedurally defaults a federal habeas claim when "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). The Supreme Court of Virginia court dismissed claims 1, 2(b), 2(c), 3(e), and 3(g) as successive because the facts upon which the claims were based were known prior to the first state habeas petition but were not raised in this first petition. Agee v. Wright, No. 141260, slip op. at 2-3 (Va. Mar. 9, 2015) (citing Va. Code § 8.01-654(B)(2) and Dorsey v. Angelone, 261 Va. 601, 604, 544 S.E.2d 350, 352 (2001)). The Supreme Court of Virginia court dismissed claim 4(b) pursuant to Slavton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), because the non-jurisdictional claim could have been raised at trial or on direct appeal but was not. Id. at 4.

Virginia Code § 8.01-654(A)(2) and (B)(2) would now bar the Supreme Court of Virginia's consideration of claims 1, 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(g), and 4(b) if Petitioner now attempted to present them to the Supreme Court of Virginia. See, e.g., Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998) (discussing the adequate and independent nature of Slavton): Mackall v. Angelone, 131 F.3d 442, 446 (4th Cir. 1997) (discussing the adequate and independent nature of § 8.01-654); O'Dell v. Netherland, 95 F.3d 1214, 1243 (4th Cir. 1996) (same).

C.

A federal court may not review a procedurally defaulted claim absent a showing of cause and prejudice or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The existence of cause ordinarily turns upon a showing of ineffective assistance of counsel, a factor external to the defense that impeded compliance with the state procedural rule, or the novelty of the claim. Id. at 753-54; Clozza v. Murray, 913 F.2d 1092, 1104 (4th Cir. 1990). Errors of counsel may serve as cause, but only if a petitioner demonstrates (1) that the errors were so egregious that they violated petitioner's constitutional right to effective assistance of counsel, and (2) that ineffective assistance claim itself is exhausted and not procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000); see Martinez v. Ryan, ___U.S. ___, 132 S.Ct. 1309, 1320 (2012) (creating a limiting qualification to Coleman for "substantial" claims of ineffective assistance of trial counsel where the cause was either no counsel or ineffective assistance of counsel during the initial state collateral proceeding). A petitioner's unfamiliarity with law or a court's procedural rules does not provide a basis for establishing cause. See, e.g., Harris v. McAdory, 334 F.3d 665, 668-69 (7th Cir. 2003) (finding that a petitioner's pro se status does not constitute adequate ground for cause). "Prejudice" means that the alleged error worked to a petitioner's "actual substantial disadvantage, infecting his entire trial with error of constitutional dimensions." McCarver v. Lee, 221 F.3d 583, 592 (4th Cir. 2000) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995) (noting a court does not need to consider the issue of prejudice in the absence of cause).

Petitioner fails to establish cause and prejudice or a fundamental miscarriage of justice to excuse any procedural default. There is no merit to claim 1 arguing fraud upon or fraud by the circuit court, claim 2 arguing that his sentence violates the Eighth Amendment or Equal Protection clause of the Fourteenth Amendment, or claim 4(b) arguing he was maliciously prosecuted because of the life sentences.

Also, claims 3(a), 3(b), 3(e), 3(f), and 3(g) do not present a "substantial" claim of ineffective assistance of counsel. A petitioner claiming ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment[,]" meaning that counsel's representation fell below an objective standard of reasonableness.1 Strickland, 466 U.S. at 687-88. The second prong of Strickland requires a petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."2 Id. at 694. A petitioner who pleaded guilty must demonstrate that, but for counsel's alleged error, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Petitioner does not establish cause and prejudice for claim 3(a) about the indictment for murder from the Circuit Court for Roanoke City. This claim is not applicable to this petition challenging the convictions from the Circuit Court for Montgomery County.

In claim 3(b), Petitioner argues counsel was ineffective for allowing him to plead no contest despite an available defense about his mental condition. Counsel presented mitigation evidence during sentencing via a video deposition of an expert witness who discussed how steroids affected Petitioner's mental state. Nonetheless, Virginia law does not permit a legal defense for a mental defect less than insanity or extreme intoxication. See Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688 (1985) ("[E]vidence of a criminal defendant's mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt."); Wave v. Commonwealth, 219 Va. 683, 698, 251 S.E.2d 202, 211 (1979) (holding a voluntary intoxication defense applies only to a specific intent to commit a crime when a defendant "was so intoxicated as to render him incapable of any willful, deliberate and premeditated act"). Petitioner's acts demonstrated planning and premeditation and, thus, precluded an intoxication defense.

There is no merit to claim 3(e). In claim 3(e), Petitioner faults counsel for not objecting when the prosecutor told the trial court that the Commonwealth sought a life sentence. Petitioner believes counsel should have objected because the prosecutor solicited the pleas of no contest for a sentence of thirty-five years' incarceration. Petitioner testified during the plea hearing that the decision to plead no contest was his own decision, the plea agreement constituted the entire agreement, and no one had made any promises to him other than what was described in the plea agreement. The only relevant promise in the plea agreement from the Commonwealth's Attorney for Montgomery County was to nolle pros one charge of using a firearm in the commission of a felony. Petitioner testified that he and the Commonwealth's Attorney for Montgomery County had not agreed upon a sentence, that the circuit court could impose a sentence up to the maximum allowed, and that he understood the maximum sentence was life imprisonment plus eight years. Not making a frivolous objection can neither be deficient performance nor result in actual prejudice, and Petitioner fails to establish how counsel's alleged failure to "obtain [and] review all material" would have resulted in him proceeding to trial.

Petitioner argues in claim 3(f) that counsel was ineffective for not advising him that he could withdraw his pleas of no contest. The record reflects Petitioner entered his no contest pleas knowingly and voluntarily, and he does not present any sufficient basis for which he could have successfully sought to withdraw the pleas. See, e.g., Parris v. Commonwealth, 189 Va. 321, 324-25, 52 S.E.2d 872, 873-74 (1949) (discussing the possible bases to permit withdrawing a plea indicating guilt).

In claim 3(g), Petitioner argues counsel erred by not objecting when the defense expert was not permitted to testify. However, the expert's report was accepted as evidence for the sentencing hearing, and the circuit court watched the video deposition of the expert during the sentencing hearing. Petitioner fails to establish what other defense expert was precluded from testifying. Accordingly, claims 1, 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(g), and 4(b) are dismissed as procedurally defaulted.

IV.

The Supreme Court of Virginia's dismissal of claims 2(a), 3(c), 3(d), and 4(a) does not warrant federal habeas relief. After a state court addresses the merits of a claim also raised in a federal habeas petition, a federal court may not grant the petition unless the state court's adjudication of a claim is contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court determination is "contrary to" federal law if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413.

A federal court may issue the writ under the "unreasonable application" clause if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. This reasonableness standard is an objective one. Id. at 410. A Virginia court's findings cannot be deemed unreasonable merely because it does not cite established United States Supreme Court precedent on an issue if the result reached is not contrary to that established precedent. Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts `the presumption of correctness by clear and convincing evidence.'" Miller-El, 545 U.S. at 240 (quoting 28 U.S.C. § 2254(e)(1)). Finally, "[a] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).

A.

Claims 2(a) and 4(a) must be dismissed in accordance with § 2254(d). The Supreme Court of Virginia held that Petitioner's voluntary and intelligent plea waived all non-jurisdictional defenses that could have been raised before the guilty pleas. Agee, No. 141260 at 3 (citing Peyton v. King, 210 Va. 194, 196-97, 169 S.E.2d 569, 571 (1969)). This holding is not contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts.3

United States v. Broce, 488 U.S. 563, 569 (19891: see Zant v. Stephens, 462 U.S. 862, 886 (1983) (equating guilty pleas to pleas of no contest for sentencing purposes); Ellis v. Dyson, 421 U.S. 426, 441 (1975) (same); North Carolina v. Alford, 400 U.S. 25, 37 (1970) (same); cf. Blockburger v. United States, 284 U.S. 299, 304 (1932) (discussing the test for double jeopardy claims). Consequently, 2(a) and 4(a) must be dismissed as waived pursuant to Petitioner's pleas of no contest.

B.

Claims 3(c) and 3(d) must also be dismissed in accordance with § 2254(d). In claim 3(c), Petitioner argues counsel rendered ineffective assistance for advising him to plead no contest because of a promise Petitioner would be sentenced to thirty-five years' incarceration. The Supreme Court of Virginia dismissed these claims as waived and contrary to the record:

Agee, No. 141260 at 3, 4 (citing Anderson v. Warden, 222 Va. 511, 516, 281 S.E.2d 885, 888 (1981)).

The Supreme Court of Virginia's dismissal of claims 3(c) and 3(d) is not contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. In Blackledge v. Allison, 431 U.S. 63, 73-74 (1977), the Supreme Court of the United States determined that:

Petitioner did not present more than conclusory allegations to the Supreme Court of Virginia in support of claim 3(c). In contrast, Petitioner testified during the plea hearing that the decision to plead no contest was his own decision, the plea agreement constituted the entire agreement, and no one had made any promises to him other than what was described in the plea agreement. The only relevant promise in the plea agreement from the Commonwealth's Attorney for Montgomery County was to nolle pros one charge of using a firearm in the commission of a felony. Petitioner testified that he and the Commonwealth's Attorney for Montgomery County had not agreed upon a sentence, that the circuit court could impose a sentence up to the maximum allowed, and that he understood the maximum sentence was life imprisonment plus eight years. Accordingly, claim 3(c) must be dismissed.

Although Petition believes in claim 3(d) that ballistics testing would have proved he did not fire the bullets that struck Sgt. Brannock, he offers nothing but his own conjecture in support of the claim. Furthermore, Petitioner acknowledged by pleading no contest that he waived his right to defend himself and challenge the Commonwealth's case. Nonetheless, the record reflects that the bullets were left in Sgt. Brannock for medical reasons, and the evidence was otherwise sufficient to sustain the malicious wounding conviction.4 Accordingly, claim 3(d) must also be dismissed.

V.

For the foregoing reasons, the court grants Respondent's motion to dismiss and dismisses the petition for a writ of habeas corpus. Based upon the court's finding that petitioner has not made the requisite substantial showing of a denial of a constitutional right as required by 28 U.S.C. § 2253(c) and Slack v. McDaniel, 529 U.S. 473, 484 (2000), a certificate of appealability is denied.