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Cobb v. Clarke

United States District Court, E.D. Virginia, Richmond Division

August 10, 2016

DEON C. COBB, Petitioner,
HAROLD W. CLARKE, Respondent.


          Robert E. Payne Senior United States District Judge.

         Deon C. Cobb, a Virginia inmate proceeding pro se, submitted a 28 U.S.C. § 2254 petition ("§ 2254 Petition, " ECF No. 1) challenging his 2011 convictions in the Circuit Court of the City of Chesapeake (hereinafter "Circuit Court"). By Memorandum Opinion and Order entered on November 16, 2015, the Court granted in part and denied in part Respondent's Motion to Dismiss. Cobb v. Clarke, No. 3:15CV214, 2015 WL 7283125, at *8 (E.D. Va. Nov. 16, 2015); (ECF Nos. 14-15.) The Court dismissed Claim Two, and directed Respondent to file a further response with respect to Claims One, Three, and Four. Respondent has filed a Supplemental Brief in Support of the Motion to Dismiss (ECF No. 16). Cobb has responded. (ECF Nos. 17-18.) For the reasons stated below, the Motion to Dismiss will be granted.

         I. Procedural History

         After a jury trial, the Circuit Court convicted Cobb of attempted robbery, murder, two counts of use of a firearm in the commission of a felony, and conspiracy to commit robbery. Commonwealth v. Cobb, Nos. CR11-520-00 through -04, at 1 (Va. Cir. Ct. Aug. 22, 2012) . The Circuit Court sentenced Cobb to thirty-four years of incarceration. Id. at 2.

         Cobb raised the following two claims on appeal:

1) THE COURT ERRED in denying the defendant's motion to strike and in affirming the jury's verdict of guilt as the evidence was not sufficient to find that the defendant acted in concert with the co-defendant to rob the victim ....
2) The COURT ERRED also in admitting into evidence over the defense objection the text messages from the number 419-0926 as this was barred by the best evidence rule.

         Petition for Appeal 13, Cobb v. Commonwealth, No. 1526-12-1, at 1 (Va. Ct. App. filed Dec. 21, 2013) . The Court of Appeals of Virginia affirmed the Circuit Court's judgment. Cobb v. Commonwealth, No. 1526-12-1, 2013 WL 5744363, at *8 (Va. Ct. App. Oct. 22, 2013). Thereafter, the Supreme Court of Virginia refused Cobb's petition for appeal. Cobb v. Commonwealth, No. 131827, at 1 (Va. Mar. 31, 2014).

         Cobb indicates on his § 2254 Petition that he filed no further challenge to his convictions and sentence. (§ 2254 Pet. ¶¶ 10-11.) Nevertheless, in the section asking whether or not each claim has been appealed to the highest state court, Cobb also indicates, "[b]efore I left the jail, a jailhouse lawyer filed a habeas corpus before I even appealed my convictions. So I wasn't able to file a second habeas." (Id. ¶ 11(e).) The record demonstrates that Cobb indeed filed a petition for a writ of habeas corpus in the Circuit Court, during the pendency of his direct appeal. See Cobb v. Sheriff, No. CL13-216, at 1-8 (Va. Cir. Ct. Oct. 7, 2013) . In that petition, Cobb argued that "[c]ounsel was ineffective in his failure to allow the petitioner to testify after the petitioner instructed such counsel that he wanted to do so" and " [c] ounsel was ineffective for failure to call witnesses that were present and ready to testify." Id. at 2. The Circuit Court addressed Cobb's claims on the merits and denied the habeas petition. Id. at 5-7. Cobb filed no appeal.

         Thereafter, Cobb filed the present § 2254 Petition, in which the following claims remain:

Claim One: "Insufficient evidence[.] Detective stated in my interview that he obtained a search warrant to get a copy of my text messages. During my trial I ask my lawyers to get a copy of the search warrant and they said there wasn't one. Evidence shouldn't have been admitted into evidence. This is a violation of my 4th [and] 5th Amendments." (§ 2254 Pet. 6.)[1]
Claim Three: "Violation of my 6th Amendment [. ] . . . [T]wo jurors should have been dismissed." (Id. at 9.)
Claim Four: "Violation of my 5th Amendment Rights [.]" At the police station, detectives "said I wasn't under arrest, but I was locked in the room and they said I could've left. How could I. I was being held against my will and I wasn't Mirandize[d] until later." (Id. at 11.)

         As explained below, these claims are defaulted and Cobb fails to demonstrate cause to excuse his default.


         A. Applicable Law

         State exhaustion "'is rooted in considerations of federal-state comity, '" and in the Congressional determination reflected in the federal habeas statutes "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See 0'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

         The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "'opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted) . "To provide the State with the necessary 'opportunity, ' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting Duncan, 513 U.S. at 365-66) . Fair presentation demands that a petitioner must present "'both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)) . The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

         "A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) . This doctrine provides that " [i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.1).[2] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).

         B. Cobb's Assertions Of Cause

         Cobb failed to raise Claims One, [3] Three, or Four in the state courts. If Cobb now attempted to present his claims to the Supreme Court of Virginia, that court would find them procedurally defaulted and time-barred pursuant to Section 8.01-654(A)(2) and 8.01-654(B)(2) of the Virginia Code. Both Virginia's statute of limitations for habeas actions and successive petition bars are adequate and independent procedural rules when so applied. See George v. Angelone, 100 F.3d 353, 363-64 (4th Cir. 1996); Sparrow v. Dir. Dep't of Corr., 439 F.Supp.2d 584, 587-88 (E.D. Va. 2006).

         In his § 2254 Petition, Cobb suggests that the jailhouse lawyer failed to raise these claims in his state habeas petition. Cobb filed his state habeas petition pro se, and was solely responsible for raising any claim he wished to pursue. A mistake of another inmate fails to serve as cause for his default.

         For the first time in his Traverse, Cobb suggests that his counsel is the cause for the default of his claims because he failed to raise these claims during trial. (Traverse 5-6, ECF No. 9.) Instead of providing support for this contention, Cobb provides little more than a recitation of the legal standard for procedural default. Nevertheless, the Court directed Respondent to respond to Cobb's assertion that counsel was the cause for the default of Claims One, Three, and Four.

         The Court acknowledges the difficulty with addressing this assertion of cause, because Cobb faults counsel for failing to advance the claims during trial, but provides little to no supporting argument for why this would excuse the default. Cobb defaulted his claims because he failed to raise them before the Supreme Court of Virginia, not because counsel failed to raise them during trial.[4] Moreover, the record establishes that counsel did pursue Claims Three and Four during trial. For those claims, Cobb seemingly argues that counsel failed to pursue the claims as vigorously as Cobb would have liked, the Circuit Court erred or, for Claim Four, that appellate counsel should have raised the issue on appeal. (See Second Traverse 2, ECF No. 17.)

         The Court also notes that Cobb's claims are ever-changing throughout his submissions to the Court. Cobb's Claims One and Four in particular seem to evolve to raise new issues in response to the Court's Memorandum Opinion denying in part the Motion to Dismiss and Respondent's Supplemental briefing. The Court is wary that Cobb will learn from this Court's generous construction of his vague claims and will supply new argument to correct the deficiencies identified by the Court in presenting those claims on appeal. Nevertheless, as explained below, because Cobb's ineffective assistance claims clearly lack merit, they fail to serve as the cause for the default of his claims.[5]

         III. ANALYSIS

         A. Standard For Ineffective Assistance

         To demonstrate ineffective assistance of counsel, a convicted defendant must show first that counsel's representation was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984) . To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the '' 'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         As explained below, Cobb fails to demonstrate any deficiency of counsel or resulting prejudice.

         B. Claim One

         In Claim One, as stated in his § 2254 Petition, Cobb argues: "Insufficient evidence. Detective stated in my interview that he obtained a search warrant to get a copy of my text messages. During my trial, I ask my lawyers to get a copy of the search warrant and they said there wasn't one. Evidence shouldn't have been admitted into evidence. This is a violation of my 4th [and] 5th Amendments." (§ 2254 Pet. 6.) This claim appears to be the same in his Traverse. After the Court directed Respondent to address ineffective assistance of counsel as the cause for his default of Claim One, in his "Points and Authorities in Support of Traverse, " Cobb appears to merge Claims One and Four. Cobb characterizes this claim as follows:

Ground One of the petition alleges, in sum, that Petitioner's Fourth and Fifth Amendment rights were violated by Thomas continuing to interrogate petitioner after he had made at least three requests to obtain counsel, during a long session that is not taped .... Although the Commonwealth argues . . . (the seizure of text messages did not implicate the Fifth Amendment because Cobb was not asked to say or do anything), the record which includes [Detective] Thomas's trial testimony certainly re[fleet] that petitioner was asked to identify Saunders as the shooter, he was asked to surrender his cell phone ..., and as customary was asked to make statements.

(Points and Auth. 3.) To the extent Cobb challenges counsel's performance with regard to his questioning on September 19, 2010 at the police station, this argument will be discussed with Claim Four, which raises the challenge to his purported interrogation. For the remainder of Claim One, the Court construes Cobb to fault counsel for failing to object to the admissibility of the text messages.

         Because Cobb's claim is terse and provides little detail, the Court first summarizes the evidence against Cobb as background. The Court of Appeals of Virginia aptly summarized Cobb's overwhelming guilt as follows:

At about 9:30 p.m. on September 14, 2010, Richard Emerle was in a room at the Budget Lodge Motel in Chesapeake with Conell Darden and another individual. After receiving a telephone call, Darden advised that he was expecting someone named "Cobb" to arrive at the door of the motel room. Emerle was seated beside the door. Emerle answered a knock at the door and admitted appellant, whom Emerle did not know. Appellant and Darden had a brief conversation. As appellant prepared to leave, Emerle got up to open the door for him. Appellant said, "That's okay. I got it." When appellant turned the door handle, thus unlocking the door, the door was pushed open from the outside. Two gunmen appeared.
One of the gunmen entered the room and demanded money. Initially, Darden said he did not have any money. When the gunman persisted in his demand, Darden pointed at a dresser drawer and said it was inside. As the gunman turned toward the dresser Darden tried to tackle him. The gun fired, striking Darden in the chest. The gunman and the other armed individual fled from the scene.
The police arrived at the motel room at 9:37 p.m. in response to 911 calls placed by Emerle and appellant. Darden was transported to the hospital for emergency medical treatment, but he died from ...

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