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Tabb v. Cabell

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

February 8, 2019

TODD ALFONZO TABB, Petitioner,
v.
BETH CABELL, Respondent.

          REPORT AND RECOMMENDATION

          RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE

         Todd 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 grounds:[1]

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.)

         The 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[2] 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.

         A. Procedural History

         On 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.[3] 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, 2017).

         On 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.

         On May 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.)

         B. Applicable Constraints Upon Habeas Review

         In 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; or
(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)) .

         C. Ineffective Assistance of Counsel

         To 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.)

         As 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.

         1. Claim One - Counsel's Failure to Strike Two Jury Members

         In 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.)[4] 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.)

         In explaining and rejecting Claims (a) and (b), which are presented as Claim One here, the Supreme Court of Virginia found:

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).

         In 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.

         With 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.)

         (Mar. 15, 2016 Tr. 16.)

         When 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 name?
MR. KRAFT: Arlen Kraft. I knew of him when I was with the Hopewell ...

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