United States District Court, E.D. Virginia
Anthony J. Trenga United States District Judge.
Wayne Wiland, a Virginia inmate proceeding pro se, has filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of his
convictions in the Circuit Court for the City of
Fredericksburg. Respondent filed a Motion to Dismiss and Rule
5 Answer, along with a supporting brief and exhibits.
Petitioner was given the opportunity to file responsive
materials, pursuant to Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975) and Local Rule 7K. Petitioner filed
a response. The matter is now ripe for disposition. For the
reasons that follow, respondent's Motion to Dismiss will
be granted, and the petition will be dismissed with
record reflects the following. Petitioner is detained
pursuant to a final judgment of the Circuit Court of the City
of Fredericksburg, entered December 13, 2013. Mot. to Dismiss
at Ex. A. Petitioner was convicted by a jury of three counts
of use or display of a firearm in the commission of a felony,
in violation of Virginia Code § 18.2-53.1, one count of
conspiracy to commit armed burglary, in violation of Virginia
Code § 18.2-89, one count of armed statutory burglary,
in violation of Virginia Code § 18.2-90, three counts of
robbery, in violation of Virginia Code § 18.2-58, and
three counts of conspiracy to commit robbery, in violation of
Virginia Code § 18.2-58. Id. Petitioner was
sentenced to forty-eight (48) years and fifty-one (51) days
imprisonment, with no time suspended. Id.
Petitioner pursued a direct appeal to the Court of Appeals of
Virginia, which was denied on October 8, 2014, and December
15, 2014. Id. at Ex. B. On direct appeal, the Court
of Appeals of Virginia stated the facts as follows.
[Petitioner] was convicted of multiple felonies arising out
of an incident on May 7, 2012, in which he and two others
entered a home with a shotgun, held the occupants at
gunpoint, and robbed them.
[Petitioner] defended the charges against him by maintaining
he acted under duress because he felt threatened by his
companion[s] ... at the time he entered the
victims' home and committed the offenses.
Record No. 2451-13-2 (footnote added). One of the victims of
the robbery was Dylan Evans. Id. The Supreme Court
of Virginia subsequently refused the petition for appeal on
June 29, 2015. Mot. to Dismiss at Ex. C.
the trial, prior to beginning his opening statement,
petitioner's trial counsel asked for a bench conference
at which the following exchange, in relevant part, occurred.
Trial Counsel: Let me proffer to the Court that the - our
defense theory of the case is that the two [perpetrators]
knew that Mr. Evans was distributing marijuana and a form of
ecstacy [sic] known as molly, that and there's going to
be evidence presented during our case in chief that
[petitioner] had obtained these kind of drugs for them before
and that they knew that it was coming from Mr. Evans. And
that Mr. ~ this is the first time that they had a chance to
go to the home of Mr. Evans and that they decided to use that
opportunity to rob Mr. Evans without the knowledge of
Trial Court: But why would that matter? Why would the motive
of [the perpetrators] - Trial Counsel: Right. Because the
evidence is going to be that [petitioner] was contacted by
the [perpetrators] to purchase a half-ounce of marijuana from
Mr. Wood and that, in setting up the meeting with Mr. Wood,
he said to the [perpetrators] we're going to - they were
giving him a ride and that we're going to go over to the
house of Dylan Evans and wait for him there.
And the [perpetrators], at that time, had known that Mr.
Evans was, you know, a dealer and that they had purchased
from him before through [petitioner] and had every reason to
believe that Mr. Evans had the drugs that they were looking
for. They're saying, where is the stuff- you know, that
was a statement that was revealed in discovery - and that
they used the opportunity to go to the home of Mr. Evans and
to rob him at that time. It also and it's part of our-
you know, the facts that we're going to show that
[petitioner] did not have any prior knowledge that they were
going to rob these people.
Trial Court: Well, that's the definition for - I mean,
how was your client going to testify to the motive of the
[perpetrators]? I mean, he can testify as to why he went.
Trial Court: Right. He can't say what the motive of the
[perpetrators] was, but he can say that he knew that they
knew that the - Trial Court: (interjecting) Your client can
testify about why he went.
Trial Counsel: Right. And he can also testify that the two -
the [perpetrators] -one of them anyway - knew that
[petitioner] had obtained these drugs from Mr. Evans before
for him - for the [perpetrator] in the past.
Trial Court: How can he testify as to what's in
Trial Counsel: That was the [perpetrators'] motive to rob
without - Trial Court: (interjecting) But your client
can't testify as to what someone else's motive was.
Trial Counsel: Right. I know he can't testify to the
motive, but I can argue it after presenting the facts.
Trial Court: Okay. Well, I think it will all depend on what
the evidence is. I'll allow you to make your opening
statement, but I'm telling you, [trial counsel], I would
caution you that if you make an opening statement - Trial
Counsel: I know.
Trial Court: - and you don't meet the - Trial Counsel: I
Trial Court: All right. It's going to be to his
Trial Counsel: I understand. I understand.
Trial Court: You understand that?
Trial Counsel: Yes, sir.
Trial Court: And I'll make my ruling on the evidence as
Commonwealth v. Wiland, CR12001571-00.
pursuing his direct appeal, petitioner timely filed a
petition for a writ of habeas corpus in the Supreme Court of
Virginia on June 20, 2016. Mot. to Dismiss at Ex. D. The
Supreme Court of Virginia stated the facts, as related to
trial counsel's performance, as follows.
The record, including the trial transcript, demonstrates
that, outside the presence of the jury, counsel sought
permission to tell the jury during his opening statement that
petitioner had obtained drugs from the victims in the past
and planned to do so on the night of the crimes. Counsel also
said he would tell the jury petitioner had gone to the
victims' home with the perpetrators to obtain drugs, but
the perpetrators used the opportunity to rob the victims and
petitioner participated in the robbery under duress because
he had been threatened. It was during this bench conference
that counsel made the statement petitioner attributes to
counsel's opening statement, that "the actual
perpetrator's intent would become apparent and