United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING ACTION)
E. HUDSON UNITED STATES DISTRICT JUDGE.
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.
THE REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
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)). 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.(§ 2254 Pet. 14.) In his §
2254 Petition, Wilkins raises the following claims for
Claim One: Trial counsel rendered ineffective assistance of
(a) failing to file a motion for discovery (id. at
(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
(f) failing to subpoena witnesses for Wilkins's defense
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.
Trial Court Error
Applicable Constraints Upon Habeas Review
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;
(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)).
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
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
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 ...