Young v. Clarke

Filing 9

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 02/14/2017. (ccol, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division TOBIAS.JAMIE YOUNG, CLERK, U.S. D1STthCT COURT RICHMOND, VA Petitioner, Civil Action No. 3:16CV221 v. HAROLD W. CLARKE, Respondent. MEMORANDUM OPINION Tobias Jamie Young, a Virginia state prisoner proceeding with counsel, brings this petition pursuant to 28 U.S.C. ( "§ 2254 Circuit Petition, Court of ECF No. ti the City 1) . of Young was Richmond of § convicted in murder, 2254 the attempted robbery, and use of a firearm. (Mem. Supp. Mot. Dismiss Ex. 7, \\State Habeas Opinion, 5-7.) ti ECF No. In his § 2254 Petition, Young contends that: Claim A \'Counsel failed to request a jury instruction that prior inconsistent statements of witnesses are not substantive evidence. Counsel failed to ask for the instruction at the time the evidence was presented as well as before the jury deliberation. [ 1 ] " (§ 2254 Pet. 13 (emphasis omitted) . ) Claim B "Counsel failed to request voir dire of Daquan Kelson outside of the presence of the jury at the moment the Commonwealth attempted to impeach the witness with grand jury testimony after Kelson testified at trial that he was not present when the shooting took place. As the facts were presented, Kelson offered no substantive evidence 1 For ease of reference, the Court refers to the omitted instructions as the Inconsistent Statement Instruction. which was probative of any material fact relating to the charges against the Petitioner, and Kelson's testimony would have been excluded as either wholly irrelevant or because the prejudicial effect greatly outweighed the probative value, if any, of Kelson's testimony. Counsel compounded this error by failing to object and argue that the impeachment evidence was not substantive alleged in Ground A . . evidence, as similarly . (Id. at 28 {emphasis omitted).) Respondent has moved to dismiss. For the reasons set forth below, the Motion to Dismiss {ECF No. 4) will be granted. I. Applicable Constraints Upon Federal Habeas Review In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. (citing 28 U.S.C. Branker, 529 F.3d 220, § 2254(e)(1)). 228 (4th Cir. 2008) Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim: (1) resulted involved in an a decision unreasonable established Federal law, that was contrary application of, to, or clearly as determined by the Supreme Court of the United States; or (2) resulted in a decision unreasonable determination of that was based on the facts in light an of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). not The Supreme Court has emphasized that the question "is court's determination determination threshold." whether was was federal court incorrect unreasonable—a Schriro (citing Williams v. a v. Landrigan, Taylor, the foregoing constraints, but the U.S. 362, 410 state whether substantially 550 529 U.S. believes 465, that higher 473 (2007) (2000)). Given the findings by the Virginia courts figure prominently in this Court's Memorandum Opinion, II. On July 27, restaurant, omitted). Procedural History 2009, Quian Huang, was shot and killed. Following a jury trial, Attorney David Lassiter, a delivery driver State Habeas Op. 2 for a (citation where he was represented by Young was convicted of the murder of Huang, attempted robbery, and use of a firearm in the commission of a felony. Id. at 1. Young unsuccessfully appealed his convictions. The Court of Appeals of Virginia aptly summarized the evidence of Young's guilt as follows: [A] t approximately midnight on July 27, 2009, Quian Huang, a delivery driver for a restaurant, was shot once in the forehead and died from the gunshot wound. Investigators found one shell casing near Huang's body. Jasmine Kirkland attended school with [Young] , knew him for approximately six years, and considered him to be her best friend. They regularly spoke on the phone, and during a conversation in August 2009, [Young] told Kirkland that he had something important to tell her. Later, Kirkland saw [Young] and she asked him where his new shoes were. Kirkland testified [Young] replied he shot a deliveryman and he threw away the shoes after the shooting, Kirkland testified she asked if he was serious and (Young] replied, "Yeah, I'm serious. I shot him. I shot the Chinese deliveryman." Daquan Kelson, [Young's) cousin and a Commonwealth witness, testified at trial that he was not in the area at the time of the shooting and Kelson refused to read the transcript of his earlier testimony before a grand jury. The transcript of Kelson's grand jury testimony showed that Kelson testified before the grand jury that someone said to rob Huang, and Kelson told [Young] not to take part in the robbery. Before the grand jury, Kelson testified [Young] pointed the firearm at Huang's head and the firearm discharged when Huang reached for it. Kelson asserted at trial that the transcript of his grand jury testimony was incorrect. Devaugh Brown testified he was in the area and he saw [Young] run past him just after hearing a gunshot. Brown's trial testimony differed from his testimony before the grand jury, and the grand jury transcript showed that Brown testified there that he saw (Young] with a black firearm and he saw [Young] tuck ''something black" into his pants. Before the grand jury, Brown testified that a few days after the shooting, he saw appellant with a black handgun. Brown asserted at trial that the transcript of his grand jury testimony was incorrect. Jermaine Washington, a defense witness, testified he was in the vicinity of the shooting, he saw Reginald Lee with a small handgun and he heard gunshots. Washington testified he did not see [Young] in the area. Washington admitted he first spoke with [Young's] attorney the day before [Young's] trial. (Young] testified he heard a gunshot while playing baseketball and he later walked by the scene 4 after he finished playing basketball. [Young] denied shooting Huang and said that Brown was mistaken when Brown testified he saw [Young] with a firearm. [Young] testified he had a falling out with Kirkland [when] they were still in high school. [Young] admitted he wrote two letters to Kirkland while incarcerated for these crimes that stated she was s t i l l his best friend despite the things she was saying about him, [Young] denied telling Kirkland that he shot the Chinese food delivery person. State Habeas original) Op. (all alterations, except (quoting Young v. Commonwealth, third to last in No. 1586-10-2, at 2-3 with counsel, filed a petition (Va. Ct. App. Jan. 11, 2011)). On August 8, 2012, Young, for a writ of habeas corpus with the Circuit Court wherein he raised his two present grounds for relief. Id. at 2. The Circuit Court conducted an evidentiary hearing on the claims and ultimately denied the petition for a writ of habeas corpus. at 10. Id. The Court recites the pertinent portions of that opinion infra Part III.B, in conjunction with its analysis of Claims A and B. Young petitioned the Supreme Court of Virginia for an appeal. The Supreme Court of Virginia refused the Petition for Appeal. (ECF No. 5-9.) III. A. To convicted Analysis Ineffective Assistance Of Counsel demonstrate defendant ineffective must show assistance first, of that counsel, a counsel's representation was deficient and second, performance prejudiced the defense. 466 U.S. 668, 687 (1984). prong of Strickland, the "'strong presumption' that the Strickland v. deficient Washington, To satisfy the deficient performance convicted defendant that counsel's must overcome strategy and tactics the fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, Strickland, a F.3d 577, 466 U.S. at 689). convicted defendant probability that, result the of 273 to but for analyzing in the would 2001) (quoting there is a reasonable unprofessional have been errors, different. the A probability sufficient to undermine outcome." ineffective that counsel's proceeding (4th Cir. The prejudice component requires "show reasonable probability is a confidence 588 Strickland, assistance of 4 66 counsel U.S. at claims, 694. it is In not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at findings in 697. B. Here, Claim A the Circuit Court made the following dismissing Claim A: In Ground A, Young alleges his attorney denied him effective assistance of counsel by failing to request a jury instruction that prior inconsistent statements of witnesses are not substantive evidence. Dequan Kelson testified before the grand jury that he was present with Young at the scene of the murder, that he advised Young not to rob the victim. he saw Young point a firearm at the victim's head and the for firearm "went off" when the victim tried to reach it. Trial Tr. at 114-22. At trial, however, Kelson denied being present at the murder and refused, when offered, to look at the transcript of his testimony before the grand jury. Id. at 107, 110. As the Commonwealth read portions of Kelson's testimony from the transcript and asked whether Kelson recalled making each of the statements. Kelson testified he did not recall the testimony. Id. at 113-16. Young argues the prejudicial effect of the waiver of an instruction on "prior inconsistent statements" is that Kelson's grand jury testimony was considered substantive jury, evidence, offered for the truth, by the as well as by the appellate court bound by the law of the case. See Young v. Commonwealth, No. 1586- 10-2, slip op. at 2-3 (Va. Ct. App. Jan. 11, 2011 {per curiam). The Virginia model jury instruction on prior inconsistent statements reads as follows: If you believe witness from [other previously made the evidence than a the statement that a defendant] inconsistent with his testimony at this trial, the only purpose for which that statement may be considered by you is for its bearing on the witness's credibility. It is not evidence that what the witness previously said is true. Virginia Model Jury Instruction - Criminal Instruction No. 2.560. The statutory model and jury common instruction reflects law. A witness's both prior inconsistent statement, if offered for the truth of the matter asserted, is inadmissible hearsay. See Gray v. Rhoads, 268 Va. 81, 89-90 (2004) {"[A] prior inconsistent statement used to impeach a witness's present the testimony . . . is truth of the never statement's admissible content."). to prove Upon the request of a party, the court is required to include the jury instruction and failure to do so is reversible error. such case the See Va. court, if Code § 8.01-403 requested by ("In every either party, shall instruct the jury not to consider the evidence of such inconsistent statements, except for the purpose of contradicting the witness."); Va. Sup. Ct. R. 2:105 ("[T]he court upon motion shall restrict such evidence to its proper scope and instruct the jury accordingly."). The Virginia Supreme Court has made it equally clear, however, that a party may waive the prior inconsistent statement jury instruction. See Hall v. Commonwealth, 233 Va. 369, 374 (1987) {"The opposing party may, of course, waive the benefit of a cautionary instruction if he so chooses.")• If inadmissible evidence is admitted without objection and counsel does not request a curing instruction, the omission of the direct appeal. instruction Largin v. is not reversible Commonwealth, 215 Va. on 318 (1974). The scrutiny Strickland of counsel's deferential." "strong Court cautioned, performance 466 U.S. at 689. presumption" to "[jludicial must counsel's reasonable trial strategy. be highly The court must give a Id. conduct as The court may not, however, "conjure up a tactical decision an attorney could have made, but plainly did not." United States V. Luck, 611 F.3d 183, 188. Virginia courts follow the "reasonable competence standard" in evaluating claims of ineffective assistance of counsel. Stokes V. Warden, Powhatan Correctional Center, 226 Va. Ill, 116-17 (1983) ("We now hold, therefore, that the constitutional guarantee of the assistance of counsel includes the right to the care and skill which a reasonably competent attorney would exercise for similar services under the circumstances."). It is undisputed that defense counsel failed to request a statements. jury instruction Trial Tr. on 230-31 Mar. prior 18, inconsistent 2010. However, based on the colloquy between the trial judge and defense counsel concerning the jury instruction, a competent attorney might reasonably decline to request the instruction for strategic reasons. Id. at 229- 231. Thus, it was not error "so serious that counsel was not functioning as 'counsel'", Strickland, 466 U.S. at 687, to fail to request the jury instruction, and, therefore, Ground A of the petition should be denied. In that Stokes, trial the Supreme counsel did Court not of meet Virginia the held reasonable competence standard where he failed to object to an instruction which the Supreme Court of the United States had earlier. found 226 Va. unconstitutional at 118. seven months The facts here do not allow for such a straightforward analysis. At the conclusion of the evidence, the trial court entertained a defense motion to include a jury instruction on the lesser charge of manslaughter. The basis for the instruction was Kelson's grand jury testimony that the victim had grabbed for the gun and it "went off." Defense counsel argued that since the jury had heard the possibility that the killing may have been involuntary, they should be so instructed. During the course of these arguments, the court inquired whether the parties were offering the "standard instruction on prior inconsistent statement." The court then observed: I don't see, from looking through my notes, I don't see anything that was admitted as substantive evidence that would support a lesser included. But if you all are not giving that instruction and you are giving what the witness previously said was substantive, then I will give the lesser included. Trial Tr. at 23 0. The Commonwealth responded it was not giving the instruction and argued the law typically does not allow for prior inconsistent statements to constitute substantive evidence. trial transcript contains the following exchange: THE COURT: That is correct. The law is that a defendant's prior inconsistent statement can be admitted as substantive evidence, but a witness' prior statement relates only to witness credibility. Mr. Lassiter, is it your position that witness' prior inconsistent statement is admitted as MR. I substantive evidence? LASSITER: I don't have a comment on it. will l e t the Court. THE COURT: the A the instruction witness' not All right. and prior substantive we The Court will deny will follow inconsistent evidence and the law. statement consistent is with The those cases that the Supreme Court has handed down. The Court is denying the request for the lesser included, because the standard is there must be a scintilla of evidence to support an instruction. And obviously, a question to a witness is not evidence. There is not factual basis for the question and prior inconsistent statement is not substantive evidence. (Trial Tr. at 230-31 (emphasis added} original}. State Habeas Op. 4-7(alterations in (alterations in original) (punctuation corrected) . Ultimately, not perform the Circuit Court concluded that deficiently because the failure to counsel did request the standard instruction about inconsistent statements was part of a reasonable trial strategy. When asked, defense counsel deferred to the court on the question of whether he believed any of Kelson's prior inconsistent statements had been admitted as substantive evidence. Id. at 231. The question arose because Kelson refused to look at the transcript of his grand jury testimony or to read any of his prior statements into evidence. Id. at 110-16. The transcript itself was not admitted into evidence. Thus, as the Commonwealth argued to the court at trial, questions posed cannot themselves be evidence. At the outset of trial, the jury was told they were to "consider the testimony of the witnesses from the stand and any other exhibits that are admitted into evidence. Trial Tr. at 53. The factfinder is presumed to follow the law. Strickland, 466 U. s. at 695. Defense counsel argued in his motion to include . the lesser included offense that the jury had heard from both the prosecutor's questions to Kelson and a detective' s representation to Young during a recorded interview that the police believed the killing to be 10 an "accident." Trial Tr. at 210. responded that defense counsel The Commonwealth "can't characterize the questioning of Mr. Dequan Kelson as an adverse witness as non-substantive evidence, then cite it in support of his request for manslaughter instruction," and similarly; "there is no precedent to the effect that a detective's statement to a defendant during an interview, which is clearly intended to elicit a response, constitutes substantive evidence." Id. at 228. The Commonwealth noted that " [i]f the opposite were true, detectives could make declaratory statements in interviews that witnesses could rely on for purposes of conviction." Similarly, attorneys cannot testify by reading a prior witness statement that the witness does not adopt in court. The trial court adopted this reasoning, denying the motion to include a lesser included charge for lack of a "scintilla of evidence" since "obviously, a question to a witness i s not evidence." Trial Tr. a t 23 0-31. Defense counsel's strategy, as stated in the evidentiary hearing and as it can be discerned from a review of the trial transcript, was that the Commonwealth had produced insufficient evidence for a conviction of robbery and a conviction of murder. Following damaging testimony from Jasmine Kirkland, the Commonwealth's confessed to her witness that he who testified shot the Chinese deliveryman, defense counsel moved the include an instruction on manslaughter. trial court denied the motion, emphasized the insufficiency evidence regarding the extent and intent. possible While sound trial doubt in the minds had been involved than either a of of ultimately strategy Young food court to After the defense counsel the Commonwealth's Young's involvement unsuccessful, option was one to leave of the jurors as to whether Young in an accidental killing, rather premeditated murder or a murder committed in the course of attempted robbery. In determining whether counsel's performance in a given case meets the reasonable competence standard, a court should make every effort "to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time." Virginia Dep't. of Corrections v. Clark, 221 Va. 525, 533 {1984) (quoting Strickland, at 688) . A court should presume that counsel's conduct is the product of reasonable trial strategy and it is the 11 petitioner's burden to overcome this presumption. Id. Young has failed to meet his burden in this case. Because this Court finds Young has not satisfied the performance prong of Strickland, an analysis of the prejudice prong need not be undertaken. State Habeas Op. 8-9 (alterations in original). The Supreme Court has emphasized that "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." 134 S. Ct. 10, 16 state prisoner claim being (2013) . [to] "AEDPA requires 'a show that the state court's ruling on the presented justification Specifically, Burt v. Titlow, that in federal there was court an was error . so . . lacking beyond in any possibility for fairminded disagreement.'" Id. (alteration in original) 562 U.S. (quoting Harrington v. Richter, 86, 103 I (2011). "[T]his standard is difficult to meet . was meant to be difficult 102. Furthermore, to set aside a . . . our . because i t Harrington, 562 U.S. "[w]hen a state prisoner asks a federal court require that the federal court use Ct. (2011)). review. a 'doubly standard of review that gives both the state court and the defense attorney the benefit of the doubt." S. at sentence due to ineffective assistance of counsel cases deferential' [to meet] . at 13 (quoting Cullen v. Given Young the present fails to Pinholster, 563 U.S. record and the demonstrate relief. 12 that Burt, above he is 134 170, 190 standard of entitled to First, it must be noted that Mr. Lassiter's primary defense was not to attempt to reduce Young's criminal culpability by having the occurred. jury focus on whether a robbery had or had not Rather, the defense's primary strategy was that Young had nothing to do with any attempted robbery or murder because Reginald Lee was the murderer and Young was not present at the murder scene. free If that defense had succeeded, Young would be a man. Second, Mr. Lassiter also was keenly without Kelson's grand jury statements, aware that, even the Circuit Court had concluded sufficient evidence existed to find his client guilty of attempted robbery. Specifically, the evidence indicated that Huang had been shot in the forehead at point blank range. No evidence suggested that Young's murder of Huang was motivated by animus or some other non-pecuniary motive. indicated that victim was a The evidence also delivery man in a high-crime area around midnight. In denying the motion to strike, was with the Circuit Court, which intimately familiar with the criminal activity associated different areas victim's profession, with Richmond, concluded that given it was reasonable to infer that murder was motivated by an attempt to rob the victim: The draw all motion the is denied. reasonable The inferences jury is from the allowed to evidence. There has been testimony that this was a delivery man. 13 There is testimony that he made his deliveries. We view the [evidence in the light] most favorable to the Commonwealth assuming the [grand jury] statement, as Mr. Lassiter is correct, is but assuming it had been made would infer there are nature of there not was a sufficient not motive facts substantive at for to all, the infer evidence the jury homicide that from and the the victim. There is no evidence that there was an ongoing dispute between the victim and the defendant. There is no other evidence to infer anything else except an attempted robbery. (Mar. 18, 2010 207-08.) After hearing proceedings, the the inconsistent reasonable from Mr. Circuit during the Court concluded that statement strategy Lassiter from instruction Mr. was habeas the omission of the Lassiter. state product of Specifically, a Mr. Lassiter may have hoped that the jury would credit some of the grand jury statements that suggested the firearm had accidently discharged when the victim reached for the gun.^ testimony would manslaughter attempted or not allow benefit robbery,^ it the jury Young if could ^ Kelson testified before sow the to he find was doubt Young found and grand Although this guilty of guilty of confusion as jury that after to the victim raised his hands the victim "reached for the gun and the gun got yanked back and the gun went off." {Mar. 18, 2010 Tr. 119-20.) ^ The jury instruction provided that if jury found that Young had murdered Huang during the course of an attempted robbery, then Young would be found guilty of first degree murder under the felony murder statute. (Mar. 18, 2010 Tr. 235.) 14 whether Young acted with malice and thus was not guilty of second degree murder/ "[T]here is no expectation that competent counsel will be a flawless strategist or tactician." Harrington, 562 U.S. at 110. With the benefit of hindsight, it appears that the lack of the Inconsistent Statement Instruction did not help Young. "Strickland does not guarantee perfect representation, ^reasonably competent attorney.'" U.S. at 686). deferential'" Given standard of the Id. above review, But, only a (quoting Strickland, 466 facts Young and fails the to "'doubly demonstrate ^ Specifically, the Circuit Court instructed the jury that; If you find that the Commonwealth has failed to prove that the defendant killed Qian Huang during the commission of an attempted robbery, but the Commonwealth did prove beyond a reasonable doubt that the defendant killed Qian Huang and that the killing was done with malice, then you shall find defendant guilty of second degree murder . . . . prove the If you find that the Commonwealth has failed to beyond a reasonable doubt any of the above elements of this offense as charged, then you shall find the defendant not guilty. Malice is the state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification at a time when the mind of the actor is under the control of reason. Malice unlawful may motive result including from any anger, unjustifiable hatred or or revenge. Malice may be inferred from any deliberate, willful or cruel act against another, however sudden. You may infer malice from the deliberate use of a deadly weapon, unless from all of the evidence you have a reasonable doubt malice existed. {Mar. 18, 2010 Tr. 235-36 {emphasis added).) 15 that the Circuit Court acted unreasonably in rejecting Claim A for lack Cullen, of deficiency. 563 U.S. 1134 Ct. at 13 (quoting Claim A is subject to dismissal because Young to demonstrate prejudice. Strickland, S. at 190). Furthermore, fails Burt, "In assessing prejudice under the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington, 562 U.S. at 111 (citations omitted). "The likelihood of a different result must be just substantial, Strickland, not conceivable." Id. at 112 (citing 466 U.S. at 693). Young fails to demonstrate that a substantial likelihood of a different Inconsistent result exists Statement had the Circuit Instruction. Court Neither the provided Circuit the Court nor the attorneys had suggested that the jury could consider the prosecutor's grand jury recitation of in assessing a witness's Young's guilt. statement Rather, before the Circuit Court had instructed the jury: Your reach a function unanimous in the verdict trial that's of this case is to based solely on the evidence and the law. It is your duty to determine the facts and reasonable inferences arising from those facts. In so doing, you must not engage in bias, guesswork or speculation. You will consider the testimony of the witnesses from the witness stand and any other exhibits that are admitted into evidence. 16 the {Mar. 18, 2010 arguments, Tr. 52-53.) Additionally, during closing the prosecutor never referred to witness statements before the grand jury in emphasizing the evidence of Young's guilt. Furthermore, inference from the as facts noted of above, the crime was motivated by an attempt to rob Huang. the most that reasonable the murder was Accordingly, Claim A will be dismissed because Young also fails to demonstrate prejudice. C. Claim B In Claim B, Young faults counsel for failing "to request voir dire of Daquan Kelson outside of the presence of the jury at the moment the Commonwealth attempted to impeach the witness with grand jury testimony after Kelson testified at trial that he Pet. was not present when the shooting took place." {§ 2254 28.) In rejecting this claim, the Circuit Court stated: In analyzing the performance prong of Strickland, this Court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. U.S. at 690. The Strickland court emphasized fair assessment of attorney performance requires every effort be made to eliminate the 466 "[a] that distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Defense counsel testified during the evidentiary hearing before this Court that he was aware he could request voir dire outside the presence of the jury and had previously done so if he had reason to believe a witness would say something that might "inflame" the jury, but so far as he could recall, he did not make 17 the request because he did not believe Kelson would say anything harmful. Accordingly, ground B should be dismissed. {State Habeas Op. 9-10.) The Court agrees that Young fails to demonstrate deficiency, but for reasons slightly different than those stated by the Circuit Court. Young states that " [w] hen Kelson testified that he not present when the shooting took place, counsel - at that moment would have known that Kelson's present when the shooting testimony was took place! that he was not Thus, counsel was unreasonable in failing to ask that the witness be questioned outside the presence of the jury to avoid tainting the jury with questioning by the Commonwealth." {§ 2254 Pet. 29 {paragraph numbers omitted).) fails to demonstrate that, Young, however, under the present circumstances, competent counsel would have I understood that he had a right to have any questioning of Kelson take place outside of the presence of the jury. Young Virginia fails to direct law that circumstances. The the provides record Court a did right not to some under suggest to principle the of present counsel that Kelson would not have any admissible evidence to offer about the attempted robbery and murder. To the contrary, prior to denying being present when the delivery man was killed. Kelson admitted that Young was his cousin and that they had frequently spent time together in Whitcomb Court where 18 the murder occurred. (Mar. 18, 2010 Tr. 106.) Although at trial Kelson denied being in Whitcomb Court when the delivery man was killed, (Mar. 2010 testified Tr. 107), Kelson acknowledged that he had 18, differently before the grand jury and did not want anything bad to happen to Young. (Mar. 18, 2010 Tr. 109-10.) Given Kelson's relationship to Young and Kelson's refusal to allow his recollection to be refreshed with his grand jury testimony, the Circuit Court permitted the prosecution to treat Kelson as an adverse witness. Virginia law allows a party to impeach his witness by prior inconsistent statements "when the I witness suddenly whom given the party unexpected, expected adverse to testimony Maxey v. Commonwealth, 495 S.E.2d 536, (citation omitted). testify 539 favorably on the has stand." (Va. Ct. App. 1998) Given these circumstances. Young fails to demonstrate counsel acted deficiently by not demanding Kelson's questioning take place outside of the presence of the jury. Accordingly, Claim B is subject to dismissal for Young's failure to prove deficiency on the part of counsel. Furthermore, for the reasons set forth above in conjunction with Claim A, fails to demonstrate prejudice. Claim B will be dismissed. 19 Young IV. Conclusion The Motion to Dismiss {ECF No. 4) will be granted. The action will be dismissed and the Court will deny a certificate of appealability. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to counsel of record. I t i s so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: February , 2017 20

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