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Dick v. Muse

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

September 29, 2014

JOSEPH J. DICK, JR., Petitioner,
v.
WILLIAM M. MUSE, Respondent.

MEMORANDUM OPINION

JOHN A. GIVNEY, Jr., District Judge.

Joseph J. Dick, Jr., a Virginia probationer, submitted this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Dick challenges his convictions, following a guilty plea, for first degree murder and rape. Respondent has moved to dismiss on the grounds that, inter alia, the statute of limitations applicable to federal habeas petitions bars Dick's petition and that Dick's claims are procedurally defaulted. Dick has responded. For the reasons set forth below, the Court will set the matter for an evidentiary hearing on Dick's assertion that his actual innocence allows the Court to address the merits of his claims. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) ("Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... [or] expiration of the statute of limitations.")

I. Dick's Grounds for Habeas Relief

Because the nature of a petitioner's claims bears on what evidence the Court may consider as part of the actual innocence inquiry, it is appropriate to recite Dick's grounds for habeas relief prior to addressing his assertion of actual innocence. See Cleveland v. Bradshaw, 693 F.3d 626, 637 n.4 (6th Cir. 2012) (quoting Gomez v. Jaimet, 350 F.3d 673, 680 (7th Cir. 2003)). Dick demands relief upon the following grounds:

Claim 1 Dick is actually innocent of the murder and rape of Michelle Bosko.

Claim 2 Dick failed to receive the effective assistance of counsel for the following reasons:[1]

(a) Counsel failed to investigate Dick's assertions that he was on the USS Saipan on the night of Michelle Bosko's rape and murder. Had counsel conducted an adequate investigation, he would have discovered that Dick's immediate supervisor at the time of the murder, Senior Chief Michael Ziegler, could confirm that Dick was on the USS Saipan on the night of the rape and murder.
(b) Counsel failed to adequately investigate the crime scene or consult with a forensic pathologist. Had counsel conducted such investigations he would have discovered that the crime scene and the autopsy overwhelmingly supported the conclusion that only a single individual had raped and murdered Michelle Bosko.
(c) Counsel failed to consult with an expert with respect to interrogations. Had counsel consulted with an expert in interrogations, counsel would have learned that Dick's confession was totally unreliable.
(d) Counsel "ignored red flags raised during a pre-trial mental health assessment that Joe's confession was false." (§ 2254 Pet. ¶ 157.)
(e) "During pretrial events, trial counsel ignored still more red flags suggesting that Joe's confession was false." ( Id. ¶ 158.)

Claim 3 Dick's guilty plea was involuntary for a variety of reasons, including:

(a) As detailed above, Dick failed to receive the effective assistance of counsel.
(b) Additionally, trial counsel contributed to convincing Dick that Dick was guilty.
(c) The Commonwealth suppressed the following exculpatory evidence:
(i) information that indicated "Omar Ballard should be a suspect, " ( id. ¶ 166.i);
(ii) information "that one of Dick's co-defendants - John Danser - had a very solid alibi and could not have participated in the crime, " ( id. ¶ 166.ii); and,
(iii) "Derek Tice told police in the fall of 1998 that he was not involved in the crime." ( Id. ¶ 166.iii.)

Claim 4 "Repeated overreaching, purposeful manipulation of the criminal justice process and deliberate misconduct committed by the former Det. Ford... deprived Mr. Dick of a fundamentally fair trial court adjudication in violation of the ...


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