United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
Wesley Smith, a Virginia state prisoner proceeding with
counsel, brings this petition pursuant to 28 U.S.C. §
2254. ("§ 2254 Petition, " ECF No. 1.) A grand
jury in the Circuit Court of the County of Mathews charged
Smith with abduction with intent to defile after having
previously been convicted of rape and aggravated sexual
battery after having been convicted of rape. (Indictments 1-2,
ECF No. 7-4.) Smith's first trial ended in a hung jury.
(§ 2254 Pet. ¶ 3.) Following a second trial, Smith
was convicted on both counts and sentenced to life plus
twenty years. (Id.)
Circuit Court aptly summarized the evidence of the crime as
At trial, the victim testified that on July 28, 2011, she was
running on a rural road in Mathews County when the
petitioner, who was driving a truck toward the victim,
stopped his vehicle and asked her if she knew where "the
Edwards" lived. The victim said "no" and
continued her run. A minute later, the petitioner parked his
vehicle at an angle in front of the victim, cutting off her
running route. The petitioner again asked the victim if she
knew the Edwards. When she responded that she did not, the
petitioner said, "[O]kay, get in the truck." When
the victim replied, "[N]o, I'm okay, " the
petitioner said "very firmly, " "[N]o, get in
While this exchange was occurring, the petitioner approached
the victim and moved behind her. He put his hands on her
upper arms and pushed her toward the truck. The victim
resisted and screamed for help. At trial, she recalled her
shoes "sliding in the gravel" as the petitioner
pushed her toward his truck. Thereafter, the petitioner
picked the victim up by her arms attempted to "shove
[her] feet first into the driver's side of the
The victim was able to brace her feet on the frame of the
door and she prevented the petitioner from pushing her into
the truck. However, while the petitioner held the victim
against the door frame, he removed one hand from her arm and
placed it inside her shorts so that his fingers were on the
built-in underwear over her vagina.
Eventually, the victim was able to break free and she ran to
a neighbor's home. The victim testified that she was able
to see the petitioner clearly, both when he asked her for
directions initially and when during the struggle to push the
victim into the truck.
(Smith v. Clarke, No. CL13-59, at 2-3, (Va. Cir. Ct.
Feb. 6, 2014) ECF No. 7-7 (alterations in original).)
§ 2254 Petition, Smith demands relief upon the following
Claim I Trial counsel failed to move for a new jury panel
after a prospective juror, Mr. Fernald, announced in open
court that he knew the Petitioner from a "prior crime
similar to-." And, during a sidebar discussion, (which
was overheard by the juror panel in the courtroom), Mr.
Fernald stated he had direct knowledge of the previous rape
case, and the Petitioner "picked the girl up, he took
her." (§2254 Pet. ¶25.)
Claim II Trial counsel failed to impeach [V's] testimony
regarding her prior sworn testimony at the preliminary
hearing and the first trial that she had not taken any steps
to find out who the perpetrator was other than through the
police, when Inv. Riley's notes indicate the contrary.
Claim III Counsel failed to present a stipulation he obtained
from nurse Terry Haywood (or other similar evidence) that, on
August 22, 2011, the Petitioner measured 6'5" tall
and weighed 364 pounds to refute ["V's"] report
and testimony that her attacker was 5'9" to 5'
10" and weighed 250 pounds. (/*¶49.)
Claim IV Counsel failed to present testimony from Deputy
Stragal that, as an experienced law enforcement agent, he
"was concerned about" the fact that the Petitioner
was "a lot bigger" than "V" had reported.
Claim V Counsel failed to object, on hearsay and
confrontation grounds, to the testimony of Inv. Riley that an
unidentified [female] bank [employee] told him that Balderson
made no debit card transactions on July 28, 2011, but did so
on July 29, 2011, and that no such transactions would have
posted the day after the transactions actually occurred.
(Id. ¶ 58.)
Claim VI The Petitioner was denied the right to effective
assistance of counsel as a result of any and all of
counsel's errors in Claims I through V, and prejudice
must be viewed in the aggregate within the totality of the
circumstances. (Id. ¶ 66.)
state habeas proceedings, Smith presented Claim II and Claim
IV. (§ 2254 Pet. ¶ 17.) Smith's remaining
claims of ineffective assistance of counsel were not
presented in state court and are potentially subject to
default. (Id.) Nevertheless, "in light of
Martinez v. Ryan, [566 U.S. 1] (2012), the Court
addresses the merits of these claims." Cottrell v.
Clarke, No. 3:16cv200, 2016 WL 5662023, at *2 (E.D. Va.
Sept. 29, 2016) (citing Martinez, 566 U.S. at 22
(Scalia, J., dissenting)). For the reasons set forth below, the
Court will grant Respondent's Motion to Dismiss and deny
the § 2254 Petition.
Ineffective Assistance of Counsel
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 convicted
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.
Failure to Move for a New Jury Panel
Claim I, Smith faults counsel for not moving "for a new
jury panel after a prospective juror, Mr. Fernald, announced
in open court that he knew the Petitioner from a 'prior
crime similar to-.'" (§ 2254 Pet. ¶ 25.)
At this juncture, it is appropriate to recount the sequence
of events surrounding this claim. At the inception of voir
dire, the Circuit Court informed the venire that Smith was
"charged with two offenses. One is abduction with intent
to defile, having previously been convicted of rape. And,
secondly, aggravated sexual battery having previously been
convicted of rape." (Aug. 22, 2012 Tr. 59, ECF No. 8-3.)
Thereafter, the Circuit Court asked the venire persons
whether any of them knew Smith. (Aug. 22, 2012 Tr. 60.) Mr.
Fernald raised his hand and stated that he knew Smith
"[s]ocially." (Aug. 22, 2012 Tr. 60.) Then, the
following exchange occurred:
THE COURT: Okay. Would the social contact that you have had
with him make it difficult or impossible for you to listen to
the evidence in this case and render a fair and impartial
verdict for both parties?
[FERNALD]: We had a, I guess, it was a prior crime similar to
MR BOWEN: Your Honor, I don't know what he's going to
say, but I would wonder if we need to take him up outside of
the presence of the other jurors?
THE COURT: We could do that. We'll pass Mr. Fernald for
just a second....
(Aug. 22, 2012 Tr. 61.)
thereafter, at a sidebar, the Circuit Court questioned Mr.
THE COURT: Mr. Fernald, if you would come up also, please.
Sir, you have indicated to me that you had some knowledge of
Mr. Smith or were related by blood or marriage.
[FERNALD]: We were at a party one night, and I guess it was
in the first case, the rape or whatever. And -
THE COURT: We being who?
[FERNALD]: He picked the girl up, he took her.
THE COURT: What? MR CAPRIO: I'm listening. MR. BOWEN:
What he's saying is the previous rape case, he has
knowledge of the previous rape. THE COURT: Okay.
MR. BOWEN: He was at the party where the girl was, Wesley
THE COURT: Do you want him to stay or go?
MR. CAPRIO: He has to go.
MR. BOWEN: It's appealable.
THE COURT: So we are going to excuse you. Thank you. You may
(Aug. 22, 2012 Tr. 68-69, ECF No. 9-1.) Although the
foregoing exchange took place at a sidebar, Smith, who was
seated at the defense table, heard the whole exchange.
(§ 2254 Pet. Ex. 1 "Smith Aff." ¶ 9, ECF
No. 1-1.) Smith insists that the jurors, who were seated even
closer to the exchange must have heard it as well.
counsel knew the venire had heard the above exchange, given
the totality of the circumstances, Smith fails to demonstrate
counsel acted deficiently by not demanding a new venire. At
best, the above exchange potentially suggested to the
prospective jurors that Smith also had abducted the woman he
had raped. Nevertheless, shortly after Mr. Fernald was
dismissed, the prospective jurors unequivocally assured the
Circuit Court that they did not "know any reason
whatsoever why [they could not] give both sides in this case
a fair and impartial trial[.]" (Aug. 22, 2012 Tr. 76.)
Counsel was well aware that, given the nature of the criminal
charges, he was not going to be able to shield the jury from
the fact his client had a proven history of serious sexual
misconduct. Counsel further knew that the prosecution's
first exhibit would be a stipulation regarding the prior rape
conviction. (Aug. 22, 2012 Tr. 119-24, ECF No. 10-2.)
Additionally, counsel knew that the stipulation would be
followed by a jury instruction which read: "Previous
conviction is an element. Evidence that the defendant was
previously convicted of rape should be considered only for
proof of the element of a prior conviction and not as proof
he committed the offenses for which he is charged."
(Aug. 22, 2012 Tr. 125.)
order to prevail on this claim, Smith must overcome the
"'strong presumption' that counsel's
strategy and tactics fall 'within the wide range of
reasonable professional assistance.'"
Burch, 273 F.3d at 588 (4th Cir. 2001) (quoting
Strickland, 466 U.S. at 689). He fails to do so.
Given the circumstances recited above, Smith fails to
demonstrate that counsel acted unreasonably by not moving for
a new jury panel on the possibility that the jurors might
have been unalterably biased by Mr. Fernald's comments.
Furthermore, Smith fails to demonstrate any possibility that
the Circuit Court would have granted a motion for a new jury
panel had counsel so moved. Indeed, Smith does not even
identify the statute or case law that would govern such a
motion. Smith would not be entitled to strike a juror or an
entire panel of jurors simply because they heard something
about the crime or the accused. Irvin v. Dowd, 366
U.S. 717, 722 (1961) ("It is not required, however, that
the jurors be totally ignorant of the facts and issues
involved."); see also Murphy v. Florida, 421
U.S. 794, 801 n.5 (1975) (upholding the seating of a juror,
who was later rehabilitated, but who initially stated during
voir dire that, "My experience of [the accused] is such
that right now I would find him guilty."). Here,
Smith's previous conviction for rape constituted an
element of the offense before the jury. The law clearly holds
that a prospective juror with prior knowledge of a crime or a
defendant can nevertheless "lay aside his [or her]
impression or opinion and render a verdict based on the
evidence presented in court." Irvin, 366 U.S.
at 723 (citations omitted). Smith's jurors assured the
Circuit Court that they could do just that. Accordingly,
Claim I will be dismissed because Smith fails to demonstrate
deficiency or prejudice.
Alleged Failure to ...