United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
Deon Harrison ("Harrison" or
"petitioner"), a Virginia inmate proceeding pro se,
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging the constitutionality of
his robbery conviction entered after a jury trial in the
Circuit Court for the City of Richmond. On May 9, 2016,
respondent filed a Motion to Dismiss and Rule 5 Answer, along
with a supporting brief and exhibits. Petitioner was given
the opportunity to file responsive materials, pursuant to
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975)
and Local Rule 7K, and after receiving an extension of time
petitioner filed a response. For the reasons that follow,
respondent's Motion to Dismiss will be granted, and the
petition will be dismissed with prejudice.
record reflects the following. Petitioner is detained
pursuant to a final judgment of the Circuit Court of the City
of Richmond, entered February 12, 2013. Motion to Dismiss at
Ex. 1. Pursuant to a jury trial, petitioner was convicted of
robbery, in violation of Virginia Code § 18.2-58, and
found not guilty of use of a firearm in the commission of a
felony. Id. Petitioner was sentenced to ten years
imprisonment, with no years suspended.
pursued a direct appeal to the Court of Appeals of Virginia,
arguing that the evidence presented at trial was insufficient
to sustain his conviction. Id. The Court of Appeals
of Virginia denied the appeal and the Supreme Court of
Virginia subsequently refused his petition for appeal.
facts established at trial were that, on January 18, 2012,
Fatima Stokes ("Stokes") and Jonathan Hardesty
("Hardesty") were working as bank tellers at a
Wells Fargo branch. October 12, 2012 Trial Tr at 52-53, 57. A
man dressed in a long, dark brown fur coat with a matching
hat, white tennis shoes, and what appeared to be a Louis
Vuitton purse, sunglasses, and pink lipstick, approached
Stokes at her window and stated that he wanted to make a
withdrawal. Id. at 53-54, 56, 89. When Stokes turned
to hand him a withdrawal slip she saw a note in her window
that read "this is a bank robbery and I have a
gun." Id. at 53. Stokes gave the man all the
money in her top drawer, which he put in his purse and then
walked out of the building. Id. at 56. During the
robbery, Stokes was only able to see the face of the robber
from the nose down. Id. at 78-79. When Stokes was
first asked to describe the robber, she did not mention that
he was wearing a hat, did not describe the shoes he was
wearing, and stated that he was wearing big, dark sunglasses.
Id. at 71-72. Hardesty was two teller windows down
from Stokes at the time of the robbery. Id. at 88.
He initially described the robber as wearing clear reading
glasses, which he admitted at trial was incorrect, black
leather shoes, although he later testified petitioner was
wearing white tennis shoes, and a black fur coat, which he
described at trial as "brownish." Id. at
97-99. He told the police after the robbery that he was 90
percent sure that petitioner was the robber based on a photo
lineup. Id. at 95. At trial both Stokes and Hardesty
identified petitioner as the robber. Id. at 58, 92.
time of the robbery, petitioner was living with his ex-wife,
Theodora Thomas ("Thomas"). Id. at 105.
Thomas testified that, before the robbery, she came home one
day in January 2012 to find that her room was in disarray and
that her Dooney & Bourke purse, long black mink coat,
necklace, and skirt were missing. Id. at 107-09.
Thomas testified that when she saw the video of the Wells
Fargo bank robbery she recognized the robber as petitioner
who was wearing her missing belongings and carrying her
missing purse. Id. atl 11-12. Thomas called the
police and identified petitioner as the robber, after which
the police searched her home on January 25 or 26, 2012.
Id. at 112-13, 120. The police did not find any fur
coat, fur hat, or purse; however, they found a pair of white
tennis shoes. Id. at 113, 120. After the search,
Thomas spoke with petitioner who stated that he would get
Thomas her belongings. Id. at 116. Petitioner asked
Thomas to state that the items were not hers. Id. at
117. When Thomas moved out of her house in March 2012, she
found her fur coat and her skirt in the room petitioner had
been occupying. Id. at 113. Thomas told the police
about the fur coat but did not mention it to petitioner's
counsel when they met. Id. at 115, 125. Thomas
brought the coat to trial and identified the coat as hers;
however, only a photograph of the coat was submitted into
evidence. Id. at 114-15.
his trial, petitioner was incarcerated with David White.
Id. at 128. White testified at trial that petitioner
told him he was "the guy they got on the news about
dressing as a woman robbing that bank." Id. at
129. Petitioner also told White that he hid the bags under
his eyes by wearing large sunglasses and that one of the bank
tellers could tell that he was not a woman based on the way
he walked. Id. Finally, petitioner told White that
he was trying to get in touch with "Cootie, " which
is Thomas' childhood nickname, regarding "certain
female clothing." Id. at 126.131.
pursuing his direct appeal, petitioner timely filed a
petition for a writ of habeas corpus in the Supreme Court of
Virginia on March 6, 2015. Motion to Dismiss at Ex. 2. The
Supreme Court of Virginia dismissed the habeas petition by
order dated November 23, 2015. Id. at Ex. 6.
March 3, 2016, petitioner filed the instant federal petition,
wherein he challenges his conviction on eight allegations of
ineffective assistance of counsel. Specifically, he alleges
that his counsel failed to:
1. Challenge the reliability of the out-of-court
identifications of petitioner as the robber.
2. Move to suppress Thomas' out-of-court identification
of petitioner as the robber.
3. Challenge White's testimony and motivation for
4. Object to the admission of the picture of the fur coat,
rather than the actual fur coat, as both were inadmissible
because they were not disclosed by the prosecution prior to
trial, and failed to object and move for a
5. Subpoena Detective Robert Albright or any of the
6. Request a jury instruction on the unreliability of