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Lockett v. Clark

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

March 11, 2019

HAROLD CLARK, Respondent.



         Joshua Terrell Lockett, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1), challenging his convictions in the Circuit Court for the City of Petersburg ("Circuit Court"). Following a jury trial in the Circuit Court, Lockett was convicted of second degree murder, use of a firearm to commit second degree murder, and manufacture of a controlled substance. In his § 2254 Petition, Lockett asserts:[1]

Claim One: "Lockett was denied his right to effective assistance of counsel under the Sixth Amendment ... when trial counsel [Susan Allen, Esq., ] failed to request a jury instruction on the lesser included offense of voluntary manslaughter." (§ 2254 Pet 6.)
Claim Two: "Lockett was denied his right to effective assistance of counsel under the Sixth Amendment ... when counsel [Walter Harris, Esq.] failed to communicate a plea agreement to Mr. Lockett being offered to him by the Commonwealth." (Id. at 11.)

         Respondent moves to dismiss on the ground that Claim Two is unexhausted and procedurally defaulted and that Claim One lacks merit. For the reasons set forth below, the Motion to Dismiss (ECF No. 8) will be DENIED WITHOUT PREJUDICE.

         I. Procedural History

         After his jury trial, the Circuit Court sentenced Lockett to thirty-three years and one month of imprisonment. (ECF No. 10-2, at 2.) Lockett appealed, challenging inter alia, the sufficiency of the evidence with respect to his conviction for second degree murder. (ECF No. 10-3, at 3.) In rejecting that challenge, the Court of Appeals of Virginia summarized the evidence as follows:

         Appellant admitted he shot and killed the victim. At trial, he testified that he did not see the victim holding a gun, but he stated "it appeared to me that [the victim] was maybe brandishing a weapon" at the time appellant shot him. After the shooting, appellant fled the scene. Appellant also admitted he told numerous lies to the police in his statement.

         Other witnesses testified they did not see the victim in possession of a firearm on the night of the shooting. In addition, prior to the shooting, appellant and the victim had an encounter during which the victim saw appellant talking to the victim's girlfriend, Indya Greene. Sharasha Branch testified the victim asked Greene why she was talking to appellant, then he left in a car. Branch testified appellant said he did not like the way the victim looked at him. Philicia Chambliss testified appellant said if the victim looked at him like that again, appellant would "lay him down," and "he won't get back up." Chambliss also testified appellant said, "I'm going to bust a cap in his ass," referring to the victim. Another witness testified appellant said he "was going to put a bullet in [the victim], and he won't get back up." After making these remarks, on that same evening, appellant shot the victim twice with one bullet striking the victim in the chest.

(Id. at 4 (alterations in original).) Thereafter, the Supreme Court of Virginia refused Lockett's petition for appeal. (ECF No. 10-4.)

         On September 1, 2016, Lockett filed a petition for a writ of habeas corpus in the Circuit Court, wherein he raised Claim One of the present § 2254 Petition. (ECF No. 10-7, at 2.) On or about December 12, 2016, Respondent filed a Motion to Dismiss the state habeas petition (ECF No. 10-6, at 1) and attached to the Motion to Dismiss an affidavit from Susan E. Allen, Esq., who represented Jones at trial. (Id. at 19-26.) In that affidavit, Ms. Allen noted that Walter Harris, Esq., with the Petersburg Public Defender's Office had previously represented Lockett on the instant criminal charges. (Id. at 25.) Ms. Allen represented that Mr. Harris informed her that Lockett previously rejected a plea offer from the prosecution for "a plea for 20 years." (Id.) This information provides the basis for Claim Two in the present § 2254 Petition.

         On January 5, 2017, the Circuit Court denied the state petition for a writ of habeas corpus. (ECF No. 10-7, at 9.) Lockett appealed. (ECF No. 10-8.) On February 26, 2018, the Supreme Court of Virginia refused the petition for appeal in a summary order. (ECF No. 10-9.)

         II. Exhaustion and Procedural Default

         Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted in considerations of federal-state comity," and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picardv. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

         The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate opportunity to address the constitutional claims advanced on federal habeas. "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese,541 U.S. 27, 29 (2004) (quoting Duncan v. Henry,513 U.S. 364, 365-66 (1995)). Fair presentation demands that "both the operative facts and the controlling legal principles" must be presented to the state court. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran,220 F.3d 276, 289 (4th Cir. 2000)). The ...

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