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Lockett v. Clark

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

January 10, 2020

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.)

         By 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.

         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 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.

         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. Claim One - Failure to Request an Instruction for Voluntary Manslaughter

         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 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.

         Here, 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.

         On the night of August 12, 2013, Philicia Chambliss was hanging out with her juvenile friends Sharasha and Indya. (Tr. 81-82.)[2] 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.)

         After 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. (Tr. 91-92.)

         When 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, [3] told Lockett to hide in the bushes so Lockett could shoot Marquis. (Tr. 332.) Lockett then hid in the ...

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