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
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." (Â§ 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.)
Memorandum Opinion and Order entered on March 11, 2019, the
Court denied Respondent's Motion to Dismiss without
prejudice. (ECF Nos. 13, 14.) Thereafter, Respondent filed a
Supplemental Response. (ECF No. 20.) Respondent attached to
his Supplemental Response the affidavit of Walter B. Harris
(ECF No. 20-1) and the affidavit of Joanne M. Pena (ECF No.
20-2). By Memorandum Order entered on October 2, 2019, the
Court informed Lockett that the Court intended to rely upon
the foregoing submissions in resolving the § 2254
Petition and would treat Respondent's submissions as a
motion for summary judgment under Fed.R.Civ.P. 56. (ECF No.
27.) Accordingly, the Court granted Lockett twenty (20) days
from the date of entry thereof to submit any appropriate
submissions in opposition to the Motion for Summary Judgment.
Lockett has not responded.
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
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.)
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 Lockett 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.)
Claim One - Failure to Request an Instruction for Voluntary
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 convicted
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, 466 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.
in Claim One, Lockett faults trial counsel for failing to
proffer a jury instruction for voluntary manslaughter. In
Virginia, "[v]oluntary manslaughter is defined as an
intentional killing committed while in the sudden heat of
passion upon reasonable provocation." Turner v.
Commonwealth, 476 S.E.2d 504, 506 (Va. Ct. App. 1996)
(citation omitted), aff'd, 492 S.E.2d 447 (Va.
1997). The Supreme Court of Virginia has observed that:
[i]n a given situation, the accused, without producing
evidence, may be entitled to an instruction on manslaughter,
or even to a verdict on that lesser charge, if it can
reasonably be inferred from the Commonwealth's evidence
that he acted in the heat of passion. Where the
Commonwealth's evidence does not permit such an
inference, however, the burden of production shifts to the
accused. But when he produces some credible evidence that he
acted in the heat of passion, he is entitled to an
instruction on manslaughter and also, if the evidence as a
whole raises a reasonable doubt that he acted maliciously, to
a verdict on the lesser charge of homicide.
Lee v. Clarke, 781 F.3d 114, 123 (4th Cir. 2015)
(quoting Hodge v. Commonwealth, 228 S.E.2d 692, 697
(Va. 1976)). As explained below, given the abundant evidence
of Lockett's premeditation and the negligible evidence
suggesting Lockett acted in the heat of passion upon
reasonable provocation, even if the jury received an
instruction on voluntary manslaughter, the jury still would
have convicted Lockett of second-degree murder.
night of August 12, 2013, Philicia Chambliss was hanging out
with her juvenile friends Sharasha and Indya. (Tr.
81-82.) They went to Croatan apartments, where
Indya started talking to Lockett. (Tr. 86-87.) Rakeem and
Marquis Harmon showed up in their Cadillac. (Tr. 83, 88.)
Indya and Marquis were dating at this time. (Tr. 112.)
Marquis asked Indya to speak with him, and she reluctantly
left Lockett's side to speak with Marquis. (Tr. 89.)
Marquis gave Lockett a look. (Tr. 89.) Shortly thereafter,
Rakeem and Marquis drove off. (Tr. 90.)
Marquis drove off, Lockett was with Indya and said, "why
that nigger looking at me? If he look at me like that again,
I'm going to, you know, lay him down. He won't get
back up." (Tr. 91.) Lockett was angry. (Tr. 136.) Indya
and her friends along with Lockett and some of his friends
walked over to the rec center at the Pin Oaks development.
they got to the rec center, Lockett pulled out his gun and
began showing Indya how to shoot someone. (Tr. 92-93.)
Shortly thereafter, Lockett saw Marquis drive by in his
Cadillac. (Tr. 93.) Lockett then stated he was going to shoot
Marquis. (Tr. 93-94.) Specifically, he stated, "I'm
going to bust a cap in his ass." (Tr. 93.) Lockett's
companion, Black,  told Lockett to hide in the bushes so
Lockett could shoot Marquis. (Tr. 332.) Lockett then hid in