Talbot v. Clarke

Filing 33

FINAL ORDER. It is ORDERED that the Court ADOPTS and APPROVES the findings set forth in the 31 Report and Recommendation. It is, therefore, ORDERED that the Respondent's 23 Motion to Dismiss be GRANTED, Petitioner's 30 Motion to Grant Relief be DENIED, and that the 1 Petition be DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that judgment be entered in favor of the Respondent. A certificate of appealability is DENIED. Petitioner is ADVISED that he may seek a certifi cate from the United States Court of Appeals for the Fourth Circuit by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510 within thirty (30) days. Signed by District Judge Elizabeth W. Hanes on 9/24/2024. Copies mailed 9/24/2024. (jmey)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
BRIAN J. TALBOT,
Petitioner,
v.

CIVIL ACTION NO. 2:23cv87

CHADWICK DOTSON,
Respondent.
FINAL ORDER
Before the Court is a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. §
2254, Respondent’s Motion to Dismiss, and Petitioner’s Motion to Grant Relief. Petitioner, Brian
J. Talbot, alleges violations of his federal rights pertaining to convictions in the Virginia Beach
Circuit Court for rape of a victim under the age of thirteen, resulting in a sentence of twenty years
incarceration, with ten years suspended. On July 12, 2024, Magistrate Judge Leonard issued a
Report and Recommendation (“R&R”) that recommended granting Respondent’s Motion to
Dismiss, denying the Petition, and dismissing the Petition with prejudice. ECF No. 31. Talbot
timely objected. 1 Obj., ECF No. 32. For the reasons stated below, Talbot’s objection will be
OVERRULED, Respondent’s Motion to Dismiss, ECF No. 23, will be GRANTED, Talbot’s
Motion to Grant Relief, ECF No. 30, will be DENIED, and the Petition, ECF No. 1, will be
DENIED and DISMISSED WITH PREJUDICE.
Talbot raises several objections to the Report and Recommendation. Talbot asserts the

The Court considers Petitioner’s objections as filed on August 3, 2024, the date he
certifies he placed the document in the prison’s mailing system. See ECF No. 32 at 10; Houston
v. Lack, 487 U.S. 266, 270–72 (1988) (explaining the prison mailbox rule). The Court received
and docketed Petitioner’s objections on August 19, 2024. ECF No. 32.
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following errors: 1) review of his Petition by a Magistrate Judge violated his right to have a District
Judge adjudicate his case; 2) neither the Magistrate Judge nor this Court should consider the
Virginia Beach Circuit Court’s decision for various reasons; and 3) certain new evidence should
be considered by the Court. 2 Obj. at 1–9. The Court will consider each argument in turn.
1. Objection to the Magistrate Judge’s Authority to Issue Report and Recommendation
Talbot’s first objection centers around the authority of a United States Magistrate Judge to
issue a Report and Recommendation and the Court’s power to consider said Report and
Recommendation. Talbot alleges that this review has “the purpose of circumventing [his] right to
have a U.S. district judge review and adjudicate [his] case.” Obj. at 1–2. Additionally, Talbot
asserts that the Report and Recommendation “inevitably prejudices the United States district
judge” and requests that “a United States district judge . . . adjudicate [his] case WITHOUT reading
the recommendation.” Obj. at 2, 6–7. The objection is overruled.
Congress has established a procedure by which a district judge may “designate a magistrate
judge to . . . submit to a judge of the court proposed findings of fact and recommendations for the
disposition, by a judge of the court, . . . of applications for posttrial relief made by individuals
convicted of criminal offenses.” 28 U.S.C. § 636(b)(1)(B); see also E.D. Va. Loc. Civ. R. 72. Here,
the Court proceeded pursuant to this statute and the Court’s local rules and referred the Petition to
a Magistrate Judge for a report and recommendation. However, when a petition is referred for a
report and recommendation, “the magistrate [judge] makes only a recommendation to this court.
The recommendation has no presumptive weight, and the responsibility to make a final

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Talbot’s Objection contains eight separate points. The Court consolidates these points
topically given that many of the grounds are duplicative.
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determination remains with this court.” Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993)
(citing Mathews v. Weber, 423 U.S. 261, 270-–71 (1976)). Upon timely objection to a Magistrate
Judge’s report and recommendation, the Court “shall make a de novo 3 determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). Having reviewed the matter de novo, “[a] judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” Id. Given this Congressional authorization; the requirement to engage in de
novo review on objection; and the Court’s power to accept, reject, or modify recommendations,
Talbot’s objection is overruled.
2. Objection to Consideration of the Circuit Court’s Decision
Talbot next challenges the Magistrate Judge’s reliance on the Virginia Beach Circuit
Court’s decision denying Talbot’s state habeas petition. Obj. at 3–5. This objection relates to
Claims 1, 2, and 3 of the Petition in which Talbot alleges that his original lawyer was ineffective
for failing to do certain things during Talbot’s state prosecution. Pet. at 5–8. As the Magistrate
Judge explained, because the Supreme Court of Virginia issued a summary denial of Talbot’s
claim, the Court “looks through” that decision to the last reasoned decision, which was the Virginia
Beach Circuit Court’s decision. 4 R&R at 17–18, 22–24; see also Wilson v. Sellers, 584 U.S. 122,
128–30 (2018). The Magistrate Judge summarized the Circuit Court’s decision and concluded that

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“De novo” means “anew.” De Novo, BLACK’S LAW DICTIONARY (7th ed. 1999). In the
context of this statute, it means that the District Court considers the issues objected to as if for the
first time, without considering the Report and Recommendation.
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As to Claim 2, the Magistrate Judge also considered the Virginia Supreme Court’s denial
of Talbot’s habeas appeal. Talbot has not challenged the Magistrate Judge’s analysis of that denial
in any way. R&R at 23–24.
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“the habeas court’s ruling that trial counsel was not ineffective was not unreasonable or contrary
to federal law or based on an unreasonable determination of the facts.” R&R at 20, 24, 27.
Talbot does not challenge the Magistrate Judge’s reasoning or recommendation directly,
but instead argues, as referenced in his Petition, that the Circuit Court’s Final Order dismissing his
state habeas claim was deficient because the judge “simply signed the report that was prepared and
preformatted for her [by the Virginia Assistant Attorney General] effectively denying and
dismissing [Talbot’s] state habeas without any indication that she had understanding of the content
herself.” R&R at 3; see also Pet. at 6. 5 Talbot argues that by signing the proposed order, there was
“no indication that [the judge] even read or had any knowledge of grounds or arguments in [the
state habeas claim].” Obj. at 3. This objection was not explicitly raised in Talbot’s Petition as
grounds for habeas relief, but the Court will address it regardless out of an abundance of caution.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “prohibits federal
habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions
listed in § 2254(d) obtains.” Premo v. Moore, 562 U.S. 115, 121 (2011) (emphasis added). Where
a claim was not adjudicated on the merits in state court, § 2254(d)’s deferential standard of review
no longer applies. See Thomas v. Davis, 192 F.3d 445, 454–455 (4th Cir. 1999). The Court
construes Talbot’s arguments relating to the adoption of the proposed order as an objection that
the claim was not “adjudicated on the merits in state court.” Id. This objection is overruled.
Fourth Circuit precedent makes clear that the adoption of a proposed order is an

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Talbot also argues that the Circuit Court judge was prejudiced and had a conflict of interest
having adjudicated his original motion to withdraw his plea for ineffective assistance of counsel.
Obj. at 3. This argument was not raised in his Petition and is therefore waived. See Pet. at 5–8
(listing grounds).
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adjudication on the merits. “[T]he disposition of a petitioner’s constitutional claims [via the
adoption of one party’s proposed conclusions] is unquestionably an ‘adjudication’ by the state
court.” Young v. Catoe, 205 F.3d. 750, 755 n.2 (4th Cir. 2000). Although a state court’s adoption
of the government’s proposed order to dismiss a state habeas petition is not an “applaud[ed]”
practice, it “does not provide any basis for applying de novo review.” Bell v. Ozmint, 332 F.3d
229, 233 (4th Cir. 2003); see also Jones v. GDCP Warden, 753 F.3d 1171, 1183 (11th Cir. 2014)
(“Considering that a summary disposition of a Strickland claim qualifies as an adjudication on the
merits, we can discern no basis for saying that a state court’s fuller explanation of its reasons—
albeit reasons drafted for the court by the State—would not be entitled to AEDPA deference.”)
(citations omitted); Burr v. Jackson, 19 F.4th 395, 404–405 (4th Cir. 2021). For these reasons, the
objection is overruled.
3. Objection to Lack of Consideration of Newly Discovered Email Conversations
Talbot next contends that the Magistrate Judge should have considered a “newly
discovered email conversation” uncovered by Talbot after the denial of his state habeas petition in
the Virginia Beach Circuit Court but before his appeal to the Supreme Court of Virginia. Obj. at
1, 3–7. Talbot asserts that he requested the Supreme Court of Virginia to consider the evidence but
that “they mistakenly denied that request.” Obj. at 6. The Magistrate Judge did not err in declining
to consider this evidence.
As explained in the Report and Recommendation, the Court, in evaluating a state court’s
habeas denial, “is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011); see also R&R at 14–15. That
record did not contain Talbot’s attached email conversations and statement from Talbot’s friend.
ECF No. 5 at 4–11. For that reason, the evidence should not be considered by this Court. See Dane
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v. Clark, No. 1:21cv854, 2022 WL 732235, at *6 (E.D. Va. Mar. 9, 2022) (noting that the Fourth
Circuit has “found that the reasonableness of a state court decision is evaluated in light of the
evidence presented in the State court proceeding”) (internal quotation marks and citation omitted).
The objection is overruled.
4. Request for Evidentiary Hearing and Expansion of Record
Talbot also appears to request that the Court expand the state-court record by considering
the email conversation and by conducting an evidentiary hearing. Obj. at 9. Talbot requests that
the Court “grant [him] an evidentiary hearing” and alleges that “[a] hearing is critical at this point.”
Obj. at 9. Neither is appropriate in this case. “[T]he standard to expand the state-court record is a
stringent one.” Shinn v. Ramirez, 596 U.S. 366, 371 (2022). Generally, AEDPA “bars evidentiary
hearings in federal habeas proceedings initiated by state prisoners,” with limited exceptions. Id.
(citation omitted). An evidentiary hearing may be held only where petitioner “satisfies one of two
narrow exceptions and demonstrates that the new evidence will establish his innocence by clear
and convincing evidence.” Id. at 371 (emphasis added) (internal quotation marks and citations
omitted). The Court need not consider whether one of the exceptions applies here because Talbot
cannot establish that the new evidence “will establish his innocence by clear and convincing
evidence.” Id.; 28 U.S.C. § 2254(e)(2)(B) (requiring petitioner to “establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense”). The attached email conversations and information
from Talbot’s friend do not provide the Court with any information previously unknown to the
state courts. Although this conversation was newly uncovered, the Virginia Beach Circuit Court
was aware of Talbot’s contention that trial counsel “failed to investigate into plausible lines of
defense,” and
rejected this argument as such decisions “are tactical decisions reserved to trial counsel.” ECF No. 6

1-1 at 75. The email conversation reveals nothing to controvert the reasonableness of that
determination or suggest Talbot’s innocence. Accordingly, objections regarding the consideration
of Talbot’s attachments and requests for an evidentiary hearing are overruled.
5. Remaining Challenges
Finally, Talbot’s objection contains general arguments related to his claims of ineffective
assistance of counsel. Talbot does not specifically identify any error that he maintains the
Magistrate Judge committed. Talbot does not address the Magistrate Judge’s conclusion that
Claims 1, 2, and 3 should be denied because the habeas court’s ruling that trial counsel was not
ineffective was not unreasonable or contrary to federal law or based on an unreasonable
determination of the facts. R&R at 20, 24, 27. Talbot’s conclusory arguments do not require the
Court to conduct a further de novo review of the Report and Recommendation. See Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (holding that de novo review is unnecessary “when a
party makes general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations”) (cleaned up). Nevertheless, a review of the
record before the Court confirms the Magistrate Judge’s conclusion.
Having reviewed the record and examined the objections filed by Talbot to the Report and
Recommendation, and having made de novo findings with respect to the portions objected to, the
Court ADOPTS and APPROVES the findings and recommendations set forth in the Report and
Recommendation. It is, therefore, ORDERED that the Respondent’s Motion to Dismiss, ECF No.
23, be GRANTED, Petitioner’s Motion to Grant Relief, ECF No. 30, be DENIED, and that the
Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE. It is further
ORDERED that judgment be entered in favor of the Respondent.
Finding that the procedural basis for dismissal of Talbot’s § 2254 Petition is not debatable,
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and alternatively finding that Talbot has not made a “substantial showing of the denial of a
constitutional right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rules
Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell, 537 U.S. 322, 335–38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483–85 (2000).
Talbot is ADVISED that because a certificate of appealability is denied by this Court, he
may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. R.App.
Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Talbot intends to seek a certificate
of appealability from the Fourth Circuit, he must do so within thirty (30) days from the date of
this Order. Talbot may seek such a certificate by filing a written notice of appeal with the Clerk of
the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia
23510.
The Clerk shall forward a copy of this Order to Talbot and to counsel of record for the
Respondent.
It is so ORDERED.
__________________________________
Elizabeth W. Hanes
United States District Judge

Norfolk, Virginia
September 24, 2024

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