Young v. Clarke

Filing 9

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

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