Wilkins v. Commonwealth of Virginia

Filing 27

MEMORANDUM OPINION. SEE OPINION for details. Signed by District Judge Henry E. Hudson on 11/28/2017. Copy of Memorandum Opinion mailed to Petitioner as directed.(ccol, )

IN THE UNITED STATES DISTRICT COURT
Richmond Division

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NOV 2 8 2017

FOR THE EASTERN DISTRICT OF VIRGINIA

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ROBERT ALLEN WILKINS,

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CLERK, U.S. DISTRICT COURT
RICHMOND. VA

Petitioner,
Civil Action No. 3:17CV142-HEH

V.

COMMONWEALTH OF VIRGINIA,

Respondent.
MEMORANDUM OPINION

(Adopting Report and Recommendation and Dismissing Action)

Robert Allen Wilkins, a Virginia inmate proceedingpro se, filed this petition for a

writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No, 1). On
September 27, 2017, the Magistrate Judge issued a Report and Recommendation wherein
he recommended denying Wilkins's § 2254 Petition, (ECFNo. 18.) Wilkins has filed

objections. (ECF No. 26.) For the reasons that follow, Wilkins's objections will be

overruled, the Report and Recommendation will be accepted and adopted, and the action
will be dismissed.

I.

THE REPORT AND RECOMMENDATION

The Magistrate Judge made the following findings and recommendation:
A.

Procedural History and Wilkins's Claims

Wilkins was convicted in the Circuit Court of the City of
Portsmouth, Virginia ("Circuit Court") of one count of petit larceny, third
or subsequent offense. Commonwealth v. Wilkins, No. CR13-427, at 2
(Va. Cir. Ct. Nov. 1, 2013). On February 5, 2014, the Circuit Court entered

final judgment and sentenced Wilkins to five years of incarceration.
Commonwealth v. Wilkins, No. CR13-427, at 1 (Va. Cir, Ct. Feb. 5, 2014).
Wilkins appealed his conviction, arguing that the Circuit Court erred
by not granting his motion to set aside the verdict, by allowing the jury trial

to proceed even though Wilkins was wearing his jail uniform, by finding
that there was no ineffective assistance of counsel and that no conflict

existed between Wilkins and trial counsel, and by not granting a
continuance when one of Wilkins's subpoenaed witnesses did not appear.
Petition for Appeal at 1, Wilkins v. Commonwealth, No. 0682-14-1 (Va.
Ct. App. filed May 28, 2014). On July 29, 2014, the Court of Appeals of
Virginia granted Wilkins's petition for appeal with respect to whether the
Circuit Court erred by allowing the jury trial to proceed when Wilkins was
wearing his jail uniform, and denied Wilkins's petition for appeal with
respect to the remaining assignments of error. Wilkins v. Commonwealth,
No. 0682-14-1, at 1-5 (Va. Ct. App. July 29, 2014). On May 12, 2015, the
Court of Appeals of Virginia affirmed Wilkins's conviction, concluding
"that the record on appeal does not support [Wilkins's] claim that the trial
court committed reversible error . . . ." Wilkins v. Commonwealth, 771
S.E.2d 705, 710 (Va. Ct. App. 2015).

Wilkins then filed a petition for appeal raising the same four

assignments of error in the Supreme Court of Virginia. Petition for Appeal
1-2, Wilkins v. Commonwealth, No. 151068 (Va. filed July 13, 2015). On
December 17, 2015, the Supreme Court of Virginia granted Wilkins's

petition for appeal with respect to whether the Circuit Court erred by
allowing the jury trial to proceed when Wilkins was wearing his jail
uniform. Wilkins v. Commonwealth, No. 151068, at 1 (Va. Dec. 17, 2015).
On June 2, 2016, the Supreme Court of Virginia affirmed the judgment of
the Court of Appeals of Virginia. Wilkins v. Commonwealth, 786 S.E.2d
156, 160 (Va. 2016).

On October 3, 2016, Wilkins filed a petition for a writ of habeas

corpus in the Circuit Court. Petition for Writ of Habeas Corpus at 1,
Wilkins v. Commonwealth, Law No. 16-3011 (Va. Cir. Ct. filed Oct. 3,
2016). In his petition, Wilkins raised the same four claims he raised on

direct appeal. Brief in Support of Petition for Writ of Habeas Corpus at 3,
Wilkins v. Commonwealth, Law No. 16-3011 (Va. Cir. Ct. filed Oct. 3,
2016).

On December 8, 2016, the Circuit Court dismissed Wilkins's

petition. Wilkins v. Commonwealth, Law No. 16-3011, at 2 (Va. Cir. Ct.
Dec. 8, 2016). Specifically, the Circuit Court concluded that Wilkins's

claims for relief were "substantially repetitious of petitioner's arguments on
direct appeal and thus are not cognizable on habeas corpus." Id. at 1(citing
Henry v. Warden, 576 S.E.2d 495 (Va. 2003)). The Circuit Court also
noted that claims regarding the sufficiency of the evidence are "not
reviewable on state habeas corpus." Id. (citing Pettus v. Peyton, 153 S.E.2d
278 (Va. 1967)).
To the extent that Wilkins alleged that the
Commonwealth withheld exculpatory evidence, the Circuit Court dismissed

his claim for failure to raise it on direct appeal. Id. (citing Slayton v.

Parrigan, 205 S.E.2d 680 (Va. 1974)).' Finally, the Circuit Court noted
that to the extent Wilkins challenged counsel's performance, he had failed
to state a claim for relief. Id. at 2. Wilkins did not appeal the dismissal of
his state habeas petition.
On January 20,2017, Wilkins filed his § 2254 Petition in this Court.^

(§ 2254 Pet. 14./ In his § 2254 Petition, Wilkins raises the following
claims for relief:

Claim One:

Trial counsel rendered ineffective assistance of

counsel'' by:
(a) failing to file a motion for discovery {id. at
5);

(b) making slanderous and derogatory
comments about Wilkins's character {id.)\

' Wilkins listed identical claims in his direct appeal and in his state habeas
petition. See Petition for Appeal 1-2, Wilkins v. Commonwealth, No. 151068

(Va. filed July 13, 2015); Brief in Support of Petition for Writ of Habeas Corpus
at 3, Wilkins v. Commonwealth, Law No. 16-30II, at 2 (Va. Cir. Ct. filed Oct. 3,
2016). In a small subpart of Claim One (a) in his state habeas, Wilkins appeared
to add an argument that the Commonwealth failed to "produc[e] tapes" from the

store video surveillance. Brief in Support of Petition for Writ of Habeas Corpus
at 5, Wilkins v. Commonwealth, Law No. 16-3011, at 2 (Va. Cir. Ct. filed Oct. 3,

2016). The Commonwealth argued that, "[ijnsofar as the present claim raises any
issue not raised on direct appeal, petitioner has procedurally defaulted the claim."
Motion to Dismiss at 2, Wilkins v. Commonwealth, Law No. 16-3011, at 2 (Va.
Cir. Ct. filed Nov. 18, 2016). The Circuit Court, based on arguments made by the
Commonwealth, indicated that, "[i]nsofar, as petitioner alleges that the
Commonwealth withheld exculpatory evidence, the Court dismisses this portion
of allegation (a) . . . for failure to raise it on direct appeal." Wilkins v.
Commonwealth, Law No. 16-3011, at 2 (Va. Cir, Ct. Dec. 8, 2016) (citation
omitted). Thus, it does not appear that the Circuit Court truly believed Wilkins
had sufficiently raised such a claim, but out of abundance of caution, dismissed
any new claim lurking therein as procedurally defaulted.

^This is the date that Wilkins states that he executed his §2254 Petition. Wilkins
did not indicate when he placed his § 2254 Petition in the prison mailing system
for mailing to this Court. Because Respondent does not argue that Wilkins's
§ 2254 Petition is untimely, the Court uses the date that Wilkins executed his
§ 2254 Petition as the filed date.

^ The Court employs the pagination assigned to Wilkins's submissions by the
CM/ECF docketing system.

^"In all criminal prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defence." U.S. Const, amend. VI.

(c) failing to specifically state that Wilkins's
attire was labeled "jail clothing" {id.)\
(d) failing to prepare for sentencing {id.)\
(e) failing to move to strike evidence and
testimony (Jd.)-, and,
(f) failing to subpoena witnesses for Wilkins's
defense {id.).
Claim Two:

The Circuit Court erred by allowing Wilkins's
trial to proceed even though Wilkins was
wearing jail clothing. {Id. 2X6.)

Respondent has moved to dismiss on the grounds that Claim One's
subparts are procedurally defaulted and that all of Wilkins's claims lack
merit. (Mem. Supp. Mot. Dismiss 2-17, ECF No. 14.) Wilkins did not
raise his current claims of ineffective assistance of counsel in his state

habeas petition before the Circuit Court. Nevertheless, Respondent
acknowledges that, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and
Trevino v. Thaler, 133 S. Ct. 1911 (2013), the fact that Wilkins had no
counsel at his "initial-review collateral proceeding" may establish cause for
the procedural default of these claims. Martinez, 566 U.S. at 16. For the

following reasons, it is RECOMMENDED that Wilkins's claims be
DISMISSED as lacking in merit.
B.

Trial Court Error

I.
Applicable Constraints Upon Habeas Review
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 of 1996 ("AEDPA") further circumscribes 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. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C.
§ 2254(e)(1)). 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 in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question
"is not whether a federal court believes the state court's determination was

incorrect but whether that determination was unreasonable—a substantially
higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams v. Taylor, 529 U.S. 362, 410 (2000)).
2.

Analysis

In Claim Two, Wilkins contends that the Circuit Court erred by
allowing Wilkins's jury trial to proceed even though Wilkins was wearing
jail clothing. (§ 2254 Pet. 6.) In rejecting this claim, the Supreme Court of
Virginia stated as follows:
In Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48
L. Ed. 2d 126 (1976), the Supreme Court of the United States
held that states "cannot, consistent[] with the Fourteenth
Amendment, compel an accused to stand trial before a jury
while dressed in identifiable prison clothes." Id. at 512, 96 S.

Ct. at 1697. Applying Estelle, we have said that "being
compelled to appear before a jury in clearly identifiable jail or
prison clothes may undermine the fairness of the fact-finding
process and, thus, violate the accused's fundamental right to a
presumption of innocence while furthering no essential state
interest." Jackson v. Washington, 270 Va. 269, 276, 619
S.E.2d 92, 95 (2005). "Because the particular evil proscribed
is compulsion, a defendant must properly object to being
compelled to appear before the jury in prison clothes."
Id. (internal quotation marks and citations omitted).
However, if a defendant wears jail attire before the jury
because of a knowingly made tactical decision or because the
defendant is otherwise "frustrat[ing] the process of justice by
his own acts," then there is no state compulsion and no
deprivation of rights. Id. at 505 n.2, 507-08, 96 S. Ct. at
1693 n.2, 1694-95.

This case presents a very narrow question for
resolution: whether Wilkins' attire was "readily identifiable"
as jail-issued clothing. To answer that question, we first must
determine which party has the burden of proof. In other
words, does Wilkins have to prove that the clothing he wore
at trial was readily identifiable as jail attire? Or, does the
Commonwealth have to prove that it was not?

We hold that the defendant bears the burden of proving
that the clothing he or she wore at trial was readily
identifiable to the jury as jail attire. We find support for this
in the language of Estelle itself: even the narrow language of
the holding emphasizes that the constitutional violation

occurs only when the defendant is "dressed in identifiable
prison clothes." Id. at 512, 96 S. Ct. at 1697 (emphasis
added). This approach also finds support in how Estelle has
been applied in the federal courts and in our sister states. See,
e.g.. United States v. Henry, 47 F.3d 17, 22 (2d Cir. 1995)

(deferring to the lower court's finding "that a jury would not
readily identify [the defendant's jail-issued] denim as prison
issue"); United States v. Martin, 964 F.2d 714, 720 (7th Cir.
1992) (ruling for the government because "the defendant is
unable to demonstrate that the plain/unmarked jumpsuit that
he wore during the two days of trial was clearly identifiable
as prison clothing"); United States v. Rogers, 769 F.2d 1418,
1422 (9th Cir. 1985) ("A person seeking reversal of his

conviction because he was compelled to stand trial in prison
garments must demonstrate from the trial record that a juror
would recognize the clothing as having been issued by prison
authorifies."); Shackelford v. State, 498 N.E.2d 382, 384 (Ind.
1986) ("[T]he defendant must show he was compelled to
wear jail attire and that it was readily identifiable as such."
(citing Estelle, 425 U.S. at 512, 96 S. Ct. at 1697 (emphasis in
original)).
A defendant must meet this burden with evidence of

his or her appearance in court.

A record that shows the

defendant wore clothes marked with the word "jail" or
"prison" would go far in helping the defendant meet his or her
burden. See. e.g., Estelle, 425 U.S. at 502, 96 S. Ct. at 1692
(the defendant's clothes "were distinctly marked as prison
issue"). Clothing marked with serial numbers or other indicia
of incarceration would also weigh in favor of a defendant
satisfying his or her burden. See Randle v. State, 826 S.W.2d
943, 946 (Tex. Crim. App. 1992) (ruling that an Estelle

violation occurs when a defendant, against his will, is "placed
before the jury while wearing clothing which bears the indicia
of incarceration"); see also Scott v. State, 80 S.W.3d 306,

306-08 (Tex. Crim. App. 2002) (reciting the defense
counsel's detailed description of the defendant's clothing at
trial as "orange overalls marked 'P-5, P-6, No. 27, No. 25,"'

and citing Randle). Even unmarked clothing could be readily

identifiable as jail-issued clothing, such as the orange
jumpsuits or striped outfits widely associated with prison
attire. See Smith v. United States, 182 F.3d 1023, 1025 (8th

Cir. 1999) (determining that it was "virtually certain that jury
members would identify the orange outfit worn by [the
defendant] as prison garb," despite the clothing not being
marked with "numbers, letters, or other markings")In this case, the evidence in the record is inadequate
for Wilkins to meet his burden of proving that the clothing he
wore at trial was readily identifiable as jail attire. The
entirety of the description in the record is as follows:
He's wearing Portsmouth City Jail clothes.
They are kind of like a green, sort of scrub
outfit. He is wearing black sneakers that I think
they have the inmates wear. He's got a visible
bracelet on his left arm.

There is no indication that Wilkins' outfit was marked in any
manner that would indicate it was from the Portsmouth City

Jail, or any other detention facility. Neither the "sneakers"
nor the "visible bracelet" as described in this record are clear

indicia of incarceration. There are no photographs in the
record of either Wilkins' attire specifically or the uniform
given to Portsmouth City Jail inmates generally. Because we
determine that Wilkins has failed to meet his burden of

proving that his clothing at trial was readily identifiable as
jail-issued clothing, we do not need to reach the question
whether Wilkins was compelled to wear said clothing.
Likewise, we do not need to address whether Wilkins' failure
to obtain non-jail clothing was a result of his own actions in
bad faith.

Wilkins v. Commonwealth, 786 S.E.2d 156, 159-60 (Va. 2016). The Court

discerns no unreasonable application of the law and no unreasonable
determination of the facts in the Circuit Court's rejection of this claim
given the facts before that court. See Cullen v. Pinholster, 563 U.S. 170,
185 (2011) (noting that "[i]f a claim has been adjudicated on the merits by a
state court, a federal habeas petition must overcome the limitation of
§ 2254(d)(1) on the record that was before that state court"); 28 U.S.C.
§ 2254(d)(l)-(2).

In support of his claim, Wilkins contends that he should not have
been compelled to appear before the jury wearing jail attire because his
"uniform was labeled with Portsmouth City Jail." (ECF No. 1-1, at 6.)
Wilkins did not raise this allegation before the Supreme Court of Virginia,

and, as explained below, this Court may not consider it in the first instance
in reviewing Claim Two.

The Supreme Court has held that "[i]f a claim has been adjudicated
on the merits by a state court, a federal habeas petition must overcome the
limitation of § 2254(d)(1) on the record that was before that state court."

Pinholster, 563 U.S. at 185; see Williams v. Stanley, 581 F. App'x 295, 296
(4th Cir. 2014). Thus, "evidence later introduced in federal court has no

bearing on § 2254(d)(1) review." Pinholster, 563 U.S. at 185.^ Here, the
Suprertie Court of Virginia concluded that Wilkins had not met his burden

of proving that his clothing at trial was "readily identifiable" as jail
clothing. Thus, that court adjudicated Wilkins's Estelle claim on the
merits. Accordingly, this Court may not consider any new factual
allegations that Wilkins has stated for the first time in his § 2254 Petition
with respect to Claim Two. See id; Williams, 581 F. App'x at 296-97.

Therefore, on the record before it, the Supreme Court of Virginia
reasonably concluded that Wilkins had not met his burden of demonstrating
an Estelle violation.^
Moreover, to the extent that any error under Estelle v. Williams

exists in the record, such an error is subject to harmless error analysis. See
UnitedStates v. Hinojosa-Ramos, No. 89-5540, 1990 WL 27349, at *1 (4th
Cir. Feb. 26, 1990) (citing United States v. Harris, 703 F.2d 508 (11th Cir.
1983); Mitchell v. Engle, 634 F.2d 353 (6th Cir. 1980); Boswell v.
Alabama, 537 F.2d 100 (5th Cir. 1976)); see also Whitman v. Bartow, 434
F.3d 968, 971-72 (7th Cir. 2006); United States v. Hurtado, 47 F.3d 577,

^Similarly, "under § 2254(d)(2), the court may only grant habeas relief when the
state court's factual determination was unreasonable 'in light of the evidence
presented in the State court proceeding.'" Williams, 581 P. App'x at 296-97; see
Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015) (citation omitted)
(Traxler, C.J., concurring) (explaining that "[b]y its plain terms, § 2254(d)(2)
limits our review to the evidence placed before the state [habeas] court").
* The Court recognizes that, in at least one instance, the United States Court of
Appeals for the Fourth Circuit has found an exception to the Supreme Court's
dictate in Pinholster when "a state court forecloses further development of the
factual record." Winston v. Kelly, 592 F.3d 535, 555 (4th Cir. 2010). The Fourth

Circuit explained that "[i]f the record ultimately proves to be incomplete,
deference to the state court's judgment would be inappropriate because judgment
on a materially incomplete record is not an adjudication on the merits for the

purposes of § 2254(d)." Id at 555-56 (citation omitted). However, the Fourth
Circuit explained that such a conclusion was appropriate in the case before it
because the petitioner's "inability to produce potentially dispositive evidence in
state habeas proceedings came about through no fault of his own." Winston v.
Pearson, 683 F.3d 489, 501 (4th Cir. 2012). That is not the case here.
8

581-82 (2d Cir. 1995). As discussed below in connection with Claim One
(c), "the record is replete with overwhelming evidence of [Wilkins's]

guilt." Whitman, 434 F.3d at 971. Thus, even assuming arguendo that
Wilkins's due process rights under Estelle v. Williams were violated, such
error was harmless. Accordingly, it is RECOMMENDED that Claim Two
be DISMISSED for lack of merit.

C.

Ineffective Assistance of Counsel

1.
Applicable Law
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 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.

2.

Analysis

As noted above, Wilkins raises several claims of ineffective

assistance of counsel in the subparts of Claim One. The Court first
addresses Claim One (c) because of its relation to Claim Two.
In Claim One (c), Wilkins contends that counsel was ineffective for
failing to specifically state to the Circuit Court that Wilkins's attire was
labeled "jail clothing." (§ 2254 Pet. 5.) Wilkins avers that his "jail uniform
was labeled 'Portsmouth City Jail.'" (ECF No. 1-1, at 7.) On the day of
Wilkins's trial, counsel raised an objection to Wilkins wearing jail clothes
in front of the jury. Before the jury was brought into the courtroom,
Wilkins's counsel raised the following objection:
MR. ROSENBERG: Judge, also I would have an
objection to Mr. Wilkins being brought before the jury. He's

' As noted above, Wilkins's claims of ineffective assistance of counsel are not
subject to review under the standard set forth in 28 U.S.C. § 2254(d) because
Wilkins did not raise these claims in his state habeas petition.

wearing Portsmouth City Jail uniform clothes. They are kind
of like a green, sort of scrub outfit. He is wearing black
sneakers that I think they have the inmates wear. He's got a
visible bracelet on his left arm.

Mr. Wilkins' lady friend and I spoke a number of
times. She indicated she brought him clothing. First she
brought it too soon. The jail wouldn't accept it. Then she
brought him clothes this morning. They wouldn't accept
them. It had something to do with the hems taped up or
something like this. After Mr. Wilkins says what he has to
say, I may ask to be tried by the Court. I set the matter with a
jury. It was easier to take off and put it on. I have to object
to him being brought in front of the jury with jail clothes on.
I'm not in a position to furnish clothing to all inmates, and
Mr. Wilkins and I are not even remotely close with height,
weight, nor any of my sons, so I'm not in a position to do it,
Judge.
MR. ROSENBERG:
Judge, note a continuing
objection on behalf of the defendant being dressed in jail
clothes.

THE COURT: I understand that the normal practice is
to, you know, not have people in jail clothes. 1 don't know
whether the jury is sophisticated enough to know what jail
clothes look like or not. The difficulty that we always have is
that I've been doing this for almost 50 years, and I can see

somebody in jail clothes and I can generally tell you what jail
they are from, because they tend to vary. It's the defendant's
responsibility to, you know, provide his own clothes within
the parameters of the sheriffs department. And if he doesn't
do it, then I guess we have to try him in jail clothes.
MR. ROSENBERG:

I understand that.

I was not

expecting this issue to arise. There is a case from the Virginia
Supreme Court. I would have brought it with me, where
habeas was granted where an attorney consented to allowing THE COURT: I'm not expecting you to consent. I'm
making a ruling. I understand your objection, and that is
overruled. And I'm going to decide this. That's what I get
paid to do on occasion. So that's the way we're going to do
it.

(Oct. 30, 2013 Tr. 5-6, 13-14.)

10

As discussed above in conjunction with Claim Two, the Supreme
Court has held that states "cannot, consistent[] with the Fourteenth
Amendment, compel an accused to stand trial before a jury while dressed in
identifiable prison clothes." Estelle, 425 U.S. at 512. To demonstrate a
violation of the Fourteenth Amendment under Estelle, a defendant must
prove that the clothing he or she wore at trial was readily identifiable to the

jury as jail attire. See, e.g., United States v. Henry, 47 F.3d 17, 22 (2d Cir.
1995); UnitedStates v. Martin, 964 F.2d 714, 720 (7th Cir. 1992); United
States V. Rogers, 769 F.2d 1418, 1422 (9th Cir. 1985). Here, if Wilkins's
jail clothes had actually been labeled with the words "Portsmouth City
Jail," counsel may have been deficient for not specifically raising this, as it
may have helped Wilkins meet his burden of demonstrating an Estelle

violation. As discussed below, however, Wilkins's claim is readily
dismissed for lack of prejudice given the overwhelming evidence of
Wilkins's guilt. See Strickland, 466 U.S. at 694 (noting that it is not
necessary to determine whether counsel performed deficiently if a claim is
readily dismissed for lack of prejudice).
During Wilkins's trial, the Commonwealth presented testimony from
Rodney Vinson, an asset protection officer for Wal-Mart. (Oct. 30, 2013
Tr. 18.) Mr. Vinson was working at the Wal-Mart on Frederick Boulevard
in Portsmouth, Virginia, on February 7, 2013. (Oct. 30, 2013 Tr. 18.)
While he walked the floor, Mr. Vinson observed Wilkins wearing a "blue
bubble coaf in the health and beauty aids section of the store. (Oct. 30,
2013 Tr. 19.) Mr. Vinson watched Wilkins take two bottles of Dove
deodorant off the shelf and "[c]onceal them inside his coat, inside his

person." (Oct. 30, 2013 Tr. 20-21.) Wilkins then "went back to the garden
center" and exited the store from there. (Oct. 30, 2013. Tr. 21.) Wilkins
never stopped to pay for any items before he exited the store. (Oct. 30,
2013 Tr. 22.)
Mr. Vinson "approached Mr. Wilkins" outside and identified

himself (Oct. 30, 2013 Tr, 21-22.) He informed Wilkins why he was
approaching, and Wilkins said, "Just let me go. I won't do it again." (Oct.
30, 2013 Tr. 22.) Mr. Vinson escorted Wilkins to the asset protection
office and "asked [Wilkins] to give [him] all the merchandise that he didn't
pay for." (Oct. 30, 2013 Tr. 23.) Ultimately, Wilkins removed six wave
caps, Dove soap, Colgate, and other items, including the deodorant, from
his coat. (Oct. 30, 2013 Tr. 27-29.) Wilkins did not provide a receipt for
any of the items. (Oct. 30, 2013 Tr. 29.) Mr. Vinson determined that all of

the items belonged to Wal-Mart. (Oct. 30, 2013 Tr. 29-30.) The total
value of the items recovered from Wilkins was $59.25. (Oct. 30, 2013
Tr.31.)

The Commonwealth also presented testimony from Officer Byers of
the Portsmouth Police Department. (Oct. 30, 2013 Tr. 39.) Office Byers
11

responded to the Wal-Mart on Frederick Boulevard on February 7, 2013 in
reference to a shoplifting. (Oct. 30, 2013 Tr. 39-40.) When he arrived on
scene, he made contact with Wilkins and obtained Wilkins's name, date of
birth, and social security number. (Oct. 30, 2013 Tr. 40.) Through Officer
Byers, the Commonwealth offered into evidence photocopies of certified
conviction orders indicating that Wilkins had been previously convicted of
five larcenies or larceny-related offenses. (Oct. 30, 2013 Tr. 41.)
Given the strength of the evidence of Wilkins's guilt, Wilkins cannot
demonstrate that any prejudice resulted from counsel's failure to
specifically state that Wilkins's attire was labeled with "Portsmouth City
Jail." See Lee v. Cain, 397 F. App'x 102, 103 (5th Cir. 2010) (affirming
denial of habeas relief where counsel allowed defendant to appear for trial
in prison attire in light of evidence of guilt); Carter v. United States, 288 F.

App'x 648, 650 (11th Cir. 2008) ("[The petitioner has] fail[ed] to
demonstrate that he was prejudiced by counsel's performance. The
evidence against [the petitioner] on both counts was so strong that there is
not a reasonable probability that a jury would have found him not guilty but
for the fact that he appeared at trial in prison attire."); Whitman, 434 F,3d at
972 (rejecting petitioner's ineffective assistance claim for failure to show
prejudice because "[t]he evidence of [petitioner's] guilt was overwhelming,
and his attire was not an outcome determinative factor in the jury's

decision"); Givens v. Del Papa, 177 F. App'x 771, 773 (9th Cir. 2006)
("Even if counsel's failure to object to [the petitioner's] appearance in jail
clothes on the first day of trial... fell below the objective standard of
reasonableness, it is extremely unlikely that the outcome of the trial would
have been different had [the petitioner] been appropriately dressed."); Hill
V. Mitchell, 400 F.3d 308, 320-21 (6th Cir. 2005) (concluding that

petitioner was not entitled to relief on ineffective assistance of counsel
claim even though he appeared at trial in jail attire because there was strong
evidence of his guilt and the petitioner failed to show prejudice).
Accordingly, it is RECOMMENDED that Claim One (c) be DISMISSED
for lack of merit.

In Claim One (a), Wilkins contends that counsel was ineffective for

failing to file a motion for discovery. (§ 2254 Pet. 5.) According to
Wilkins, counsel "made no attempt to file any motions for discovery or
request to obtain a copy of the video tape evidence which was exculpatory
evidence that was favorable to [Wilkins]." (ECF No. 1-2, at 10.) In Claim
One (d), Wilkins alleges that counsel was ineffective for failing to prepare
for sentencing. (§ 2254 Pet. 5.) In Claim One (e), Wilkins argues that
counsel failed to move to strike evidence and testimony presented during

his jury trial. {Id.) According to Wilkins, counsel should have moved to
strike testimony presented by Rodney Vinson, the member of the asset
protection team at Wal-Mart who witnessed Wilkins committing petty
12

larceny. (ECF No, 1-2, at 6.) In Claim One (f), Wilkins contends that
counsel was ineffective by failing to subpoena witnesses for Wilkins's
defense. (§ 2254 Pet. 5.)
Wilkins fails to state the basis for his belief that counsel should have

filed a motion for discovery, except for a motion to discover the video
tapes. Wilkins also fails to identify how these video tapes would have been
favorable to his defense and on what basis counsel should have moved to

strike Mr. Vinson's testimony. Wilkins also fails to indicate what counsel
should have presented on Wilkins's behalf at sentencing, and who counsel
should have subpoenaed to testify on Wilkins's behalf Wilkins's terse and
conclusory allegations insufficiently demonstrate deficient performance or
prejudice under Strickland. Bassette v. Thompson, 915 F.2d 932, 940-41
(4th Cir 1990) (requiring proffer of mitigating evidence to state claim of
ineffective assistance); see Sanders v. United States, 373 U.S. 1, 19 (1963)
(finding denial of habeas relief appropriate where petitioner "stated only
bald legal conclusions with no supporting factual allegations").
Accordingly, it is RECOMMENDED that Claims One (a), (d), (e), and (f)
be DISMISSED for lack of merit.

In Claim One (b), Wilkins faults counsel for making slanderous and
derogatory comments about Wilkins's character. (§ 2254 Pet. 5.) Wilkins
references the following dialogue that occurred during a recess:
THE DEFENDANT:

You all forced me to have the

trial and he sat there and talked shit to me. This is ridiculous.
I want out of this courtroom.

THE COURT:

You will get an opportunity in just

about 30 seconds.

THE WITNESS: I'm done with it, man. Take me out.

I'm just leaving.
MR. ROSENBERG: Your Honor, I want to put
something on the record with the bailiffs here.
THE DEFENDANT: I'm going to kill you, man.
MR. ROSENBERG: That too, Judge.
(The defendant left the courtroom.)
MR. ROSENBERG: Apparently Mr. Wilkins is under
some sort of misunderstanding I've got to take whatever he's
got to give me. And obviously that's wrong. After sustained
abuse, I indicated to him - - and I apologize for using this
kind of language - - but this is how we communicate. I told
him to blow me. I told him, You don't have a 26-year-old
lawyer to mess with. And you shouldn't mess around with
the big boys. He continued to verbally abuse me and
threatened to get me. I indicated to him that he was a thief,
and a bad thief He threatened to kill me again. I told him.
13

Don't steal my shit. He said, I'pi going to fix you. He said I
was killing his children. And I made a comment about his
suitability as a father.
In the midst of all the deputies, he indicated to me, Be
careful. It is dangerous out there, very dangerous out there.
You heard him just say, I will kill you. I see no reason not to
proceed with this case. I've got a decent defense, in spite of
this blooming idiot. I want to conclude the case. As to
whether or not - - I don't want my business on the street
.necessarily, Judge.
THE COURT: Well, I think it would be fair to say
Mr. Wilkins is a difficult client.
MR. ROSENBERG: If he's as good a killer as he is at
stealing, I don't have much to worry about, but you never
know.
(Oct. 30, 2013 Tr. 52-54.) Wilkins fails to explain, and the Court fails to
discern, how counsel's comments prejudiced his defense when they
occurred outside of the presence of the jury, as the jury, not the judge, was
responsible for deciding Wilkins's guilt or innocence. See United States v.
Chong Lam, 677 F.3d 190, 197 (4th Cir. 2012) (noting that when
determining whether a prosecutor's improper remarks were prejudicial, a
court must consider, inter alia, whether the remarks misled the jury and
whether they were deliberately made to mislead the jury); Lawlor v. Zook,
No. 2:15CV113, 2017 WL 2603521, at *26 n.39 (E.D. Va. June 15, 2017)
(rejecting claim that "trial court committed error by referencing
[petitioner's] failure to testify ... because the disputed comments were
Accordingly, it is
made outside the presence of the jury").
RECOMMENDED that Claim One (b) be DISMISSED for failure to
demonstrate prejudice.
D.

Conclusion
For the foregoing reasons, it is RECOMMENDED that
Respondent's Motion to Dismiss (ECF No. 12) be GRANTED and
Wilkins's claims be DISMISSED. It is further RECOMMENDED that
Wilkins's § 2254 Petition be DENIED and the action be DISMISSED.
(Report and Recommendation 1-18 (alterations in original).)

II.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION
"The magistrate makes only a recommendation to this court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains
14

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)). This Court "shall make a de novo

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). "The filing of
objections to a magistrate's report enables the district judge to focus attention on those

issues—factual and legal—^that are at the heart of the parties' dispute." Thomas v. Arn,
474 U.S. 140,147 (1985). "[WJhen 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," de novo review is unnecessary. Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982) (citations omitted).
III.

WILKINS'S OBJECTIONS

The Court received two submissions from Wilkins. The first is a letter

"address[ing] the denied motion to grant evidence hearing on the defendant wearing jail

clothes at trial."® (Letter 1, ECF No. 25 (referring to the Magistrate Judge's order
denying an evidentiary hearing, ECF No. 23).) The Court discerns no error in the

Magistrate Judge's denial of Wilkins's request for a hearing, and Wilkins fails to offer
any persuasive argument that an evidentiary hearing is needed. To the extent that

Wilkins seeks reconsideration of the denial of the request for an evidentiary hearing, his
request for reconsideration (ECF No. 25) will be denied.

*After the Report and Recommendation was entered, Wilkins filed a letter motion asking the Court to
order an evidentiary hearing. (ECF No. 20.) By Memorandum Order entered on October 12,2017, the

Court denied the letter motion and explained, "[a]t thisjuncture, no evidentiary hearing is required."
(ECFNo. 23,atl.)
15

The second submission from Wilkins is unlabeled; however, the Court construes
this submission as Wilkins's objections to the Report and Recommendation.

("Objections," ECF No. 26.) Wilkins's Objections are rambling, lack any discemable

organization, and fail to comport with the Magistrate Judge's directive that "objections
should be numbered and identify with specificity the legal or factual deficiencies of the
Magistrate Judge's findings." (R & R 18, ECF No. 18 (citation omitted).) Instead of

identifying specific deficiencies in the Report and Recommendation, Wilkins generally
reasserts the factual and legal arguments that he made in his § 2254 Petition. Wilkins

also cites solely to the state court record, and not to the Report and Recommendation.
In order for an objection to trigger de novo review, it must be made with

"sufficient specificity so as reasonably to alert the district court of the true ground for the
objection." United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007); see Page v.
Lee, 337 F.3d 411, 416 n.3 (4th Cir 2003) ("[PJetitioner's failure to object to the

magistrate judge's recommendation with the specificity required by the Rule is, standing
alone, a sufficient basis upon which to affirm the judgment of the districtcourt as to this

claim."). Further, the objection must respond to a specific error in the Report and
Recommendation. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). "General

objections to a magistrate judge's report and recommendation, reiterating arguments
already presented, lack the specificity required by Rule 72 and have the same effect as a
failure to object." UnitedStates v. Wearing, No. 3:04-cr-00092, 2011 WL 918343, at *2

(W.D. Va. Mar. 15, 2011) (citing Orpiano, 687 F.2d at 47; Veney v. Astrue, 539 F. Supp.

16

2d 841, 845-46 (W.D. Va. 2008)). After reviewing Wilkins's Objections, the Court
concludes that Wilkins's Objections are tantamount to failing to object at all.
For example, Wilkins begins with the statements:

An written objection to the Report and Recommendation to why this
claim and claims should be granted.

The defendant should not have been compelled to appear before a
jury wearing identifiable jail uniform (T-5, 13-15).
The trial court erred by finding there was no ineffective assistance of
counsel.

Why this petition should be granted 2254 claims in District Court
because there is merit to support claims, one and two based on Court
Transcript of the trial process that the defendant rights were violated under
Sixth and Fourteenth Amendment to a fair trial.

(Objs. 1.) The next page is a portion of this Court's docket, followed by what appears to
be a description of what he filed in his state habeas petition. {Id. at 2-3.) The remaining

eleven pages are comprised of a summary of portions of the trial transcript and rambling
legal arguments in support of some or all of his claims in no discemable order. (Jd. at 4-

14.) Wilkins fails to identify "a specific error in the magistrate's proposed findings and
recommendations," and therefore his Objections fail to comport with Federal Rule of

Civil Procedure Rule 72. Orpiano, 687 F.2d at 47. Accordingly, this Court is not
required to conduct a de novo review of the record.

Even in light of the fact that the Court is not required to conduct a de novo review,

after reviewing the record, the Court finds that the Magistrate Judge properly assessed
Wilkins's claims and determined that they lacked merit. Accordingly, the Report and
Recommendation will be accepted and adopted.

17

IV.

CONCLUSION

Wilkins's Objections will be overruled. The Report and Recommendation (EOF
No. 18) will be accepted and adopted. The Motion to Dismiss (ECF No. 12) will be

granted. Wilkins's § 2254 Petition (ECF No. 1) will be denied. Wilkins's request for
reconsideration of the denial of his request for an evidentiary hearing (ECF No. 25) will
be denied. Wilkins's claims and the action will be dismissed. A certificate of

appealability will bedenied.®
An appropriate Final Order will accompany this Memorandum Opinion.

/s/

ij

HENRY E. HUDSON

Date:

UNITED STATES DISTRICT JUDGE

Richmond, Virgmia

' An appeal may not be taken from the final order in a §2254 proceeding unless ajudge issues a
certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(a). A CCA will not issue unless a
prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were 'adequate to deserve encouragement to proceedfiirther.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Wilkins fails to meet this standard. Accordingly, the Court will deny a certificate of
appealability.
18