United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE
Alfonzo Tabb, a Virginia state prisoner proceeding
pro se, brings this petition pursuant to 28 U.S.C.
§ 2254 ("§ 2254 Petition," ECF No. 1)
challenging his conviction in the Circuit Court for the
County of Charles City, Virginia ("Circuit Court").
Tabb argues that he is entitled to relief on the following
Claim One: Counsel rendered ineffective assistance because
counsel "allowed not one, but two jurors to remain on
the jury, even after [Tabb] informed [counsel] of the
conflict between [himself] and the two jurors,"
resulting in a "conflict of interest/partial jury."
(§ 2254 Pet. 5.)
Claim Two: Counsel rendered ineffective assistance when
"counsel told [Tabb] that he could not appeal a jury
trial verdict." (Id. at 6.)
Claim Three: Counsel rendered ineffective assistance because
"counsel improperly withdrew the Government's plea
offer" and "misled and gave [Tabb] erroneous advice
during the plea- bargaining process" by
"[encouraging] [Tabb] not to enter into the
Government's plea offer." (Id. at 8.)
matter is before the Court for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b). Respondent filed a
Motion to Dismiss, asserting that Tabb's claims lack
merit. (ECF No. 5.) Despite being given
Roseboro notice, Tabb has not responded. For the
reasons that follow, it is RECOMMENDED that Respondent's
Motion to Dismiss (ECF No. 5) be GRANTED and Tabb's
§ 2254 Petition (ECF No. 1) be DENIED because Tabb's
claims are without merit.
March 15, 2016, a jury convicted Tabb of one count of
malicious wounding. See Commonwealth v. Tabb, No.
CR15000041-00, at 1-3 (Va. Cir. Ct. Apr. 22, 2016). The
Circuit Court entered the Sentencing Order on June 17, 2016,
and sentenced Tabb to five years of incarceration.
Commonwealth v. Tabb, No. CR15000041-00, at 1-2 (Va.
Cir. Ct. June 17, 2016). On July 1, 2016, Tabb, proceeding
with counsel, filed a Notice of Appeal. Notice of Appeal,
Commonwealth v. Tabb, No. CR15000041-00 (Va. Cir.
Ct. filed July 1, 2016). On October 17, 2017, the Court of
Appeals of Virginia denied the petition for appeal. Tabb
v. Commonwealth, No. 1279-16-2 (Va. Ct. App. Oct. 17,
December 21, 2016, the Court received Tabb's first
petition pursuant to 28 U.S.C. § 2254 ("First
§ 2254 Petition"). See Tabb v. Clarke, No.
3:16CV995, 2017 WL 4052382, at *1 (E.D. Va. Sept. 12, 2017).
The Court dismissed Tabb's First § 2254 Petition
"without prejudice to Tabb's right to refile once he
has exhausted his state court remedies." Id.
4, 2017, Tabb filed a petition for a writ of habeas corpus in
the Supreme Court of Virginia raising all three of the claims
he presents in the instant § 2254 Petition. See Petition
for Writ of Habeas Corpus at 1, Tabb v.
Commonwealth, No. 170769 (Va. filed May 4, 2017). The
Supreme Court of Virginia reviewed the merits of Tabb's
state habeas petition and dismissed the petition. (ECF No.
1-2, at 1-4.) Tabb subsequently filed the instant § 2254
Petition. (§ 2254 Pet. 1.)
Applicable Constraints Upon Habeas Review
order 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 circumscribed 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.
Landriqan, 550 U.S. 465, 473 (2007) (citing Williams
v. Taylor, 529 U.S. 362, 410 (2000)) .
Ineffective Assistance of Counsel
demonstrate ineffective assistance of counsel, a convicted
defendant must show first that counsel's representation
was deficient and, second, that the deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To satisfy the deficient
performance prong of Strickland, the convicted
defendant must overcome the "'strong
presumption' that counsel's strategy and tactics fall
within the wide range of reasonable professional
assistance.'" Burch v. Corcoran, 273 F.3d
577, 588 (4th Cir. 2001) (quoting Strickland, 466
U.S. at 689). The prejudice component requires a defendant to
"show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 4 66
U.S. at 694. In analyzing ineffective assistance of counsel
claims, it is not necessary to determine whether counsel
performed deficiently if the claim is readily dismissed for
lack of prejudice. Id. at 697. Respondent
acknowledges that Tabb raised his instant three claims in his
state habeas petition before the Supreme Court of Virginia.
(Br. Supp. Mot. Dismiss 2, ECF No. 7.) In its dismissal of
Tabb's habeas petition, the Supreme Court of Virginia
identified four claims raised by Tabb. (See ECF No.
1-2, at 1-3.) The claims that the Supreme Court of Virginia
identified as Claims (a) and (b) are raised in Claim One in
the instant § 2254 Petition, and the claims that the
Supreme Court of Virginia identified as Claims (c) and (d)
are presented in Claims Two and Three, respectively.
(Id. at 1-3; § 2254 Pet. 5-8.)
discussed in detail below, the Court has reviewed the
entirety of Tabb's § 2254 Petition and attachments,
and the state court record, and concludes that the Supreme
Court of Virginia's determination that Tabb's claims
lack merit is not unreasonable.
Claim One - Counsel's Failure to Strike Two Jury
Claim One, Tabb argues that counsel rendered ineffective
assistance because counsel "allowed not one, but two
jurors to remain on the jury, even after [Tabb] informed
[counsel] of the conflict between [himself] and the two
jurors." (§ 2254 Pet. 5.) In his Memorandum of Law,
which he attached to his § 2254 Petition, Tabb
identifies the two jurors as Jane Harris-Coleman and Karen
Smith. (ECF No. 1-1, at 6.) In Tabb's state habeas
petition, this claim was presented as two separate claims,
which the Supreme Court of Virginia identified as Claims (a)
and (b) . (See ECF No. 1-2, at 1-2.)
explaining and rejecting Claims (a) and (b), which are
presented as Claim One here, the Supreme Court of Virginia
In claims (a) and (b), petitioner contends he was denied the
effective assistance of counsel when trial counsel allowed
two unidentified prospective jurors "one who attended
school with the petitioner, and the one who previously
testified against petitioner's brother, to remain on the
jury" after petitioner informed counsel there was a
conflict between the petitioner and the jurors.
The Court holds claims (a) and (b) satisfy neither the
"performance" nor the "prejudice" prong
of the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984). A criminal
defendant has a constitutional right to an impartial jury.
U.S. Const. Amends. VI and XIV; Va. Const, art. I, § 8.
Petitioner, however, fails to name the jurors he contends
counsel should have objected to, or to show how the jurors
were unable to "stand indifferent in the cause."
Code § 8.01-358. The record, including the trial
transcript, demonstrates that only two prospective jurors,
Wilbert Graham and Jane Harris-Coleman, stated they knew
petitioner. During voir dire, prospective juror
Harris-Coleman stated she knew petitioner "from
school." The Commonwealth asked if she could "sit
in judgment" of petitioner or "have any problem
being fair to the Commonwealth and the Defense in this
case?" Harris-Coleman answered, "No, I can be
fair." Accordingly, assuming Harris-Coleman is one of
the jurors petitioner contends counsel should have
challenged, counsel could reasonably have determined she was
not biased and a motion to strike her for cause would have
been futile. Graham stated he knew petitioner because he used
to work with him. He was struck from the venire and did not
serve as a juror. Petitioner does not identify the juror he
claims "testified against [his] brother," and the
record does not demonstrate any other member of the venire
knew petitioner. Moreover, petitioner has failed to
articulate why he believes the unidentified juror's
alleged testimony against petitioner's brother resulted
in any bias against petitioner. Thus, petitioner has failed
to demonstrate that counsel's performance was deficient
or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding
would have been different.
(See id. (alteration in original).) As explained
below, the Court discerns no unreasonable application of the
law and no unreasonable determination of the facts. See 28
U.S.C. §§ 2254(d)(1)-(2).
Tabb's Memorandum of Law, he argues that "Juror,
Jane Harris-Coleman was related to [him], ... by the fact
that she knew him from when they attended Charles City High
School together." (ECF No. 1-1, at 6.) Tabb argues that
"[e]ven as far back as those days, Jane Harris-Coleman
had a negative relationship with Todd Tabb and his
brother." (Id.) Tabb also argues that
"[m]ore recently, Jane Harris-Coleman, who as a security
guard, was a witness who testified against Tabb's
brother, John Tabb, . . . [testifying] that she saw John Tabb
stealing gasoline out of a school bus." (Id.)
Additionally, Tabb argues that "[t]he second juror
related to [him], Karen Smith, was a student who attended
Charles City High School while Todd Tabb attended that
school." (Id.) Tabb argues that he "had an
ongoing negative or strained relationship with juror Karen
Smith as they had a long history of quarreling about various
matters." (Id.) Tabb contends that
"[s]imilarly, another prospective juror, a Mr. Wilbert
Graham, during *voir dire,' also stated he knew
petitioner because he *used to work with him.' Yet, Mr.
Graham was stricken for cause from the venire and did not
serve as a juror." (Id.) Tabb provides no
further supporting argument or facts regarding his
relationships with these jurors.
respect to the sequence of events underlying this claim,
during voir dire, the Circuit Court asked the venire persons
whether any of them knew or were related to Tabb. (Mar. 15,
2016 Tr. 15.) Mr. Wilbert Graham raised his hand and stated
that he knew Tabb because he "used to work with
[Tabb]." (Mar. 15, 2016 Tr. 15-16.) The Circuit Court
then stated "[w]e'll come back to that." (Mar.
15, 2016 Tr. 16.) Next, the Circuit Court again asked whether
anyone was related to Tabb. (Mar. 15, 2016 Tr. 16.) After the
venire persons indicated that they were not related to Tabb,
the following exchange occurred:
THE COURT: Anyone else know Mr. Tabb?
MS. HARRIS-COLEMAN: Yes.
THE COURT: How do you know him?
MS. HARRIS-COLEMAN: I know him from school.
THE COURT: We'll come back to that one. Anyone else know
Mr. Tabb? (No response.)
15, 2016 Tr. 16.)
asked whether any of the venire persons knew the attorneys,
the following exchange occurred:
THE COURT: You know of Mr. Morrissey?
MS. SIMMONS: Yes, not personally.
THE COURT: You also raised your hand, would you state your
MR. KRAFT: Arlen Kraft. I knew of him when I was with the