United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR, UNITED STATES DISTRICT JUDGE
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:
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.)
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.
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:
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.
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
(Id. at 4 (alterations in original).) Thereafter,
the Supreme Court of Virginia refused Lockett's petition
for appeal. (ECF No. 10-4.)
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.
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.)
Exhaustion and Procedural Default
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. §
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 ...