United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
the Court is respondent's Motion to Dismiss [Dkt. No. 8]
petitioner Nahom Tesfaye's ("petitioner" or
"Tesfaye") Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2254 [Dkt. No. 1]. For the reasons
explained below, the Motion to Dismiss will be granted.
December 19, 2012, Tesfaye was arrested pursuant to a warrant
alleging that he had committed one count of rape, in
violation of Virginia Code § 18.2-61. Opinion Letter 2,
Tesfaye v. Clarke. No. CL-2015-616 (Fairfax Cty.
Cir. Ct. Jan. 14, 2016) [R.305]. Tesfaye waived his right to
a preliminary hearing and, in August 2013, he was indicted on
that charge by a Fairfax County Grand Jury. Id. On
September 19, 2013, Tesfaye, who was represented by Thaddeus
Furlong ("Furlong"), pleaded guilty to the charge
in a hearing before Judge Charles Maxfield of the Fairfax
County Circuit Court. Id.
the plea hearing, the Assistant Commonwealth Attorney offered
the following proffer of facts:
On November 17th of 2012, at a private home on Devereux Court
in the Alexandria part of Fairfax County, E.S. who was
nineteen at the time was home from college and at a
friend's house playing cards and drinking. She was there
with six male and female friends including this Defendant,
After talking and playing cards with her friends and
consuming five shots of tequila, E.S. was intoxicated and
does not remember being put to bed. At about 3:40 in the
morning, E.S. was forced awake due to physical pressure atop
her body. When she woke up, she saw the Defendant on top of
her with his penis inside of her vagina.
Once E.S. realized what was going on she said, "Whoa,
" and the Defendant got off of her, sat on the edge of
the bed and pulled up his pants. The Defendant then walked
out of the room like nothing had happened.
Id. at 2-3 [R.305-06] (quoting Plea Hr'g Tr.
8-9). After the Commonwealth's proffer, Furlong was asked
whether he had anything he wished to add to the
Commonwealth's description of the facts. Furlong
I would just add that he did have a conversation with her.
She wasn't in unconsciousness. If this had gone to trial
we would enter that testimony and that he asked if he could
have sex, she responded, "Yes." But as the
Commonwealth said, we believe that she was responding thinking
he was someone else, thinking that he was the Jesse person,
which made it non-consensual under the Code.
Id. at 3 [R.306] (quoting Plea Hr'g Tr. 10-11).
Judge Maxfield accepted Tesfaye's guilty plea and, on
December 18, 2013, sentenced him to 20 years in prison with
10 years suspended, conditioned on probation for life.
January 15, 2015, Tesfaye filed a Petition for a Writ of
Habeas Corpus in Fairfax County Circuit Court that raised
i. Trial counsel provided ineffective assistance by failing
to research, investigate or litigate defenses to rape by
fraud, and by advising him to plead guilty to conduct that is
not prohibited by Virginia law;
ii. The court violated [his] Due Process right by convicting
[him] based on a guilty plea that did not provide proof of
guilt beyond a reasonable doubt;
iii. The Commonwealth violated [his] Due Process by failing
to provide exculpatory evidence supporting a defense based on
fraud in the inducement;
iv. Trial counsel provided ineffective assistance [by]
failing to advise him of the Sexually Violent Predator
commitment program; and
v. Trial counsel provided ineffective assistance by arranging
for a police-conducted polygraph examination, failing to
discuss the law regarding polygraphs with [him], failing to
attend the polygraph examination, failing to request a second
examination, and failing to challenge the results of the
polygraph and interrogation in court.
Id. at 3-4 [R.306-306A]. On August 19, 2015, the
circuit court held an evidentiary hearing on Claim One,
in which the parties presented the testimony of several
witnesses, including Tesfaye, Furlong, and Assistant
Commonwealth Attorney James Panagis ("Panagis"), as
well as exhibits and the criminal file. Id. at 4
[R.306A]. The circuit court found that the "evidentiary
record revealed numerous inconsistent narratives" from
Tesfaye. Id. On November 17, 2012, the day of the
rape, Tesfaye and E.S. exchanged text messages, in which
Tesfaye repeatedly denied any sexual contact. Id. at
4-5 [R.306A-307]. The next day, Tesfaye's narrative
appeared to shift. When E.S. asked him why he was lying,
Tesfaye responded: "I just confessed to Jesse[.]... I
was being stupid and drunk. I went to ceck [sic] on you for
good intentions at first and I just went idiotic from
there[.]" Id. at 5 [R.307] (alterations in
original) (quoting Evidentiary Hearing Resp't Ex. 2). In
addition, the same day, Tesfaye texted Jesse:
Ok Jesse. Youre right I didn't know what I was doing.
Being drunk isn't an excuse. You win I lied I was wrong.
I apologize. I wasnt man enough to live up to my actions. I
don't want the law to come into hand. I already have a
possession charge which I have to go to court Already for. I
have a scholarship ...