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Wilkins v. Commonwealth

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

November 28, 2017

ROBERT ALLEN WILKINS, Petitioner,
v.
COMMONWEALTH OF VIRGINIA, Respondent.

          MEMORANDUM OPINION (ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE.

         Robert Allen Wilkins, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1). On September 27, 2017, the Magistrate Judge issued a Report and Recommendation wherein he recommended denying Wilkins's § 2254 Petition. (ECF No. 18.) Wilkins has filed objections. (ECF No. 26.) For the reasons that follow, Wilkins's objections will be overruled, the Report and Recommendation will be accepted and adopted, and the action will be dismissed.

         I. THE REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendation:

         A. Procedural History and Wilkins's Claims

Wilkins was convicted in the Circuit Court of the City of Portsmouth, Virginia ("Circuit Court") of one count of petit larceny, third or subsequent offense. Commonwealth v. Wilkins, No. CR13-427, at 2 (Va. Cir. Ct. Nov. 1, 2013). On February 5, 2014, the Circuit Court entered final judgment and sentenced Wilkins to five years of incarceration. Commonwealth v. Wilkins, No. CR13-427, at 1 (Va. Cir. Ct. Feb. 5, 2014).
Wilkins appealed his conviction, arguing that the Circuit Court erred by not granting his motion to set aside the verdict, by allowing the jury trial to proceed even though Wilkins was wearing his jail uniform, by finding that there was no ineffective assistance of counsel and that no conflict existed between Wilkins and trial counsel, and by not granting a continuance when one of Wilkins's subpoenaed witnesses did not appear. Petition for Appeal at 1, Wilkins v. Commonwealth, No. 0682-14-1 (Va. Ct. App. filed May 28, 2014). On July 29, 2014, the Court of Appeals of Virginia granted Wilkins's petition for appeal with respect to whether the Circuit Court erred by allowing the jury trial to proceed when Wilkins was wearing his jail uniform, and denied Wilkins's petition for appeal with respect to the remaining assignments of error. Wilkins v. Commonwealth, No. 0682-14-1, at 1-5 (Va. Ct. App. July 29, 2014). On May 12, 2015, the Court of Appeals of Virginia affirmed Wilkins's conviction, concluding "that the record on appeal does not support [Wilkins's] claim that the trial court committed reversible error . . . ." Wilkins v. Commonwealth, 771 S.E.2d 705, 710 (Va. Ct. App. 2015).
Wilkins then filed a petition for appeal raising the same four assignments of error in the Supreme Court of Virginia. Petition for Appeal 1-2, Wilkins v. Commonwealth, No. 151068 (Va. filed July 13, 2015). On December 17, 2015, the Supreme Court of Virginia granted Wilkins's petition for appeal with respect to whether the Circuit Court erred by allowing the jury trial to proceed when Wilkins was wearing his jail uniform. Wilkins v. Commonwealth, No. 151068, at 1 (Va. Dec. 17, 2015). On June 2, 2016, the Supreme Court of Virginia affirmed the judgment of the Court of Appeals of Virginia. Wilkins v. Commonwealth, 786 S.E.2d 156, 160 (Va. 2016).
On October 3, 2016, Wilkins filed a petition for a writ of habeas corpus in the Circuit Court. Petition for Writ of Habeas Corpus at 1, Wilkins v. Commonwealth, Law No. 16-3011 (Va. Cir. Ct. filed Oct. 3, 2016). In his petition, Wilkins raised the same four claims he raised on direct appeal. Brief in Support of Petition for Writ of Habeas Corpus at 3, Wilkins v. Commonwealth, Law No. 16-3011 (Va. Cir. Ct. filed Oct. 3, 2016). On December 8, 2016, the Circuit Court dismissed Wilkins's petition. Wilkins v. Commonwealth, Law No. 16-3011, at 2 (Va. Cir. Ct. Dec. 8, 2016). Specifically, the Circuit Court concluded that Wilkins's claims for relief were "substantially repetitious of petitioner's arguments on direct appeal and thus are not cognizable on habeas corpus." Id. at 1 (citing Henry v. Warden, 576 S.E.2d 495 (Va. 2003)). The Circuit Court also noted that claims regarding the sufficiency of the evidence are "not reviewable on state habeas corpus." Id. (citing Pettus v. Peyton, 153 S.E.2d 278 (Va. 1967)). To the extent that Wilkins alleged that the Commonwealth withheld exculpatory evidence, the Circuit Court dismissed his claim for failure to raise it on direct appeal. Id. (citing Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974)).[1] Finally, the Circuit Court noted that to the extent Wilkins challenged counsel's performance, he had failed to state a claim for relief. Id. at 2. Wilkins did not appeal the dismissal of his state habeas petition.
On January 20, 2017, Wilkins filed his § 2254 Petition in this Court.[2](§ 2254 Pet. 14.)[3] In his § 2254 Petition, Wilkins raises the following claims for relief:
Claim One: Trial counsel rendered ineffective assistance of counsel[4] by:
(a) failing to file a motion for discovery (id. at 5);
(b) making slanderous and derogatory comments about Wilkins's character (id.);
(c) failing to specifically state that Wilkins's attire was labeled "jail clothing" (id.);
(d) failing to prepare for sentencing (id.)',
(e) failing to move to strike evidence and testimony (id.); and,
(f) failing to subpoena witnesses for Wilkins's defense (id.).
Claim Two: The Circuit Court erred by allowing Wilkins's trial to proceed even though Wilkins was wearing jail clothing. (Id. at 6.)
Respondent has moved to dismiss on the grounds that Claim One's subparts are procedurally defaulted and that all of Wilkins's claims lack merit. (Mem. Supp. Mot. Dismiss 2-17, ECF No. 14.) Wilkins did not raise his current claims of ineffective assistance of counsel in his state habeas petition before the Circuit Court. Nevertheless, Respondent acknowledges that, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), the fact that Wilkins had no counsel at his "initial-review collateral proceeding" may establish cause for the procedural default of these claims. Martinez, 566 U.S. at 16. For the following reasons, it is RECOMMENDED that Wilkins's claims be DISMISSED as lacking in merit.

         B. Trial Court Error

         1. Applicable Constraints Upon Habeas Review

         To obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") further circumscribes this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

         2. Analysis

         In Claim Two, Wilkins contends that the Circuit Court erred by allowing Wilkins's jury trial to proceed even though Wilkins was wearing jail clothing. (§ 2254 Pet. 6.) In rejecting this claim, the Supreme Court of Virginia stated as follows:

In Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Supreme Court of the United States held that states "cannot, consistent[] with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes." Id. at 512, 96 S.Ct. at 1697. Applying Estelle, we have said that "being compelled to appear before a jury in clearly identifiable jail or prison clothes may undermine the fairness of the fact-finding process and. thus, violate the accused's fundamental right to a presumption of innocence while furthering no essential state interest." Jackson v. Washington, 270 Va. 269, 276, 619 S.E.2d 92, 95 (2005). "Because the particular evil proscribed is compulsion, a defendant must properly object to being compelled to appear before the jury in prison clothes." Id. (internal quotation marks and citations omitted). However, if a defendant wears jail attire before the jury because of a knowingly made tactical decision or because the defendant is otherwise "frustrating] the process of justice by his own acts, " then there is no state compulsion and no deprivation of rights. Id. at 505 n.2, 507-08, 96 S.Ct. at 1693 n.2, 1694-95.
This case presents a very narrow question for resolution: whether Wilkins' attire was "readily identifiable" as jail-issued clothing. To answer that question, we first must determine which party has the burden of proof. In other words, does Wilkins have to prove that the clothing he wore at trial was readily identifiable as jail attire? Or, does the Commonwealth have to prove that it was not?
We hold that the defendant bears the burden of proving that the clothing he or she wore at trial was readily identifiable to the jury as jail attire. We find support for this in the language of Estelle itself: even the narrow language of the holding emphasizes that the constitutional violation occurs only when the defendant is "dressed in identifiable prison clothes." Id. at 512, 96 S.Ct. at 1697 (emphasis added). This approach also finds support in how Estelle has been applied in the federal courts and in our sister states. See, e.g., United States v. Henry,47 F.3d 17, 22 (2d Cir. 1995) (deferring to the lower court's finding "that a jury would not readily identify [the defendant's jail-issued] denim as prison issue"); United States v. Martin,964 F.2d 714, 720 (7th Cir. 1992) (ruling for the government because "the defendant is unable to demonstrate that the plain/unmarked jumpsuit that he wore during the two days of trial was clearly identifiable as prison clothing"); United States v. Rogers, 769 F.2d 1418, 1422 (9th Cir. 1985) ("A person seeking reversal of his conviction because he was compelled to stand trial in prison garments must demonstrate from the trial record that a juror would recognize the clothing as having been issued ...

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