United States District Court, E.D. Virginia, Richmond Division
DEON C. COBB, Petitioner,
HAROLD W. CLARKE, Respondent.
E. Payne Senior United States District Judge.
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
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.
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.
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).
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.
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.)
Claim Three: "Violation of my 6th Amendment [. ] . . .
[T]wo jurors should have been dismissed." (Id.
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.)
explained below, these claims are defaulted and Cobb fails to
demonstrate cause to excuse his default.
EXHAUSTION AND PROCEDURAL DEFAULT
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. §
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).
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). 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).
Cobb's Assertions Of Cause
failed to raise Claims One,  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).
§ 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
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.
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. 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.)
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
Standard For Ineffective Assistance
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.
explained below, Cobb fails to demonstrate any deficiency of
counsel or resulting prejudice.
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.
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
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 ...