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Tesfaye v. Walrath

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

February 13, 2018

NAHOM MICHAEL TESFAYE, Petitioner,
v.
JOHN WALRATH, Warden, River North Correctional Center, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         Before 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.

         I. BACKGROUND

         On 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.[1] 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.

         During 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, Nahom Tesfaye.
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 responded:

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, [2]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. Id.

         On January 15, 2015, Tesfaye filed a Petition for a Writ of Habeas Corpus in Fairfax County Circuit Court that raised five claims:

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[3] 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 ...

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