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Kersey v. Davis

United States District Court, E.D. Virginia

February 25, 2016

Mark Kersey, Petitioner
Keith Davis, Respondent.


T. S. Ellis, III, United States District Judge

Mark Kersey, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in the Circuit Court for the City of Norfolk of aggravated malicious wounding and first degree murder. Petitioner has paid the applicable filing fee. On May 5, 2015, respondent filed a Rule 5 Answer and a Motion to Dismiss with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and after receiving an extension of time he filed a reply to the Motion to Dismiss on June 16, 2015. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed, with prejudice.

I. Background

On August 8, 2011, a City of Norfolk jury convicted petitioner of: (I) the aggravated malicious wounding of Brandon Franklin and (ii) the first degree murder of Lemar Woodward. As a result, petitioner received a total sentence of seventy (7) years incarceration. Case No. CR09003300; Resp. Ex. A. The facts giving rise to petitioner's convictions were described by the Court of Appeals of Virginia as follow:

On July 21, 2009, Taneisha Woodard (Taneisha) had an argument with her child and the child left the house. Taneisha also left the house. Taneisha is appellant's sister, and she was married to Lemar Woodard (Woodard), the victim of the murder. Derrick Bunch, Woodard's brother, testified he was at Woodard's house with Woodard and Brandon Franklin, the victim of the aggravated malicious wounding, when appellant's girlfriend, Taishia Roseman (Roseman) and additional females arrived during the late afternoon asking about Taneisha's child. Bunch testified Roseman was angry and said that Woodard was not a good parent because he permitted the child to run away. Burch testified Roseman said to Woodard, 'You're a bitch. We'll be back. You ain't gonna do nothing next time we come back.' Roseman and the other females left.
Bunch testified he, Woodard, and Franklin went to the basement and were sitting on a sofa when appellant and another man entered the basement at approximately 6:30 p.m. Bunch testified appellant told Woodard that he needed to talk to him and Woodard replied, 'It takes two of you all to talk to me?" Bunch testified as Woodard started to stand up, appellant punched Woodard several times. Bunch testified Franklin stood up and grabbed appellant from the back. Bunch testified he tried to break up the fight and at a certain point, the fighting stopped. [After a verbal argument, however] Bunch testified appellant grabbed Woodard and they fell onto the sofa and he tried to break up the fight. Bunch testified Woodard told him to pick up a television and drop it on appellant's head, but Bunch refused. Bunch testified appellant and Woodard stopped fighting and the men stood near each other and the women were behind them. Bunch testified appellant was facing Woodard and Franklin when he saw appellant holding a pocket knife by his side and he asked appellant to put the knife away. Bunch testified appellant 'tucked away the knife and he did not see it.' Bunch testified he, Woodard and Franklin were unarmed. Bunch testified appellant turned, stabbed Woodard, turned toward Franklin, and stabbed Franklin. Bunch testified appellant stated, 'Bitch. You all going to die. Somebody going to die tonight penitentiary style.'...

Kersey v. Commonwealth. R. No. 2567-10-1 (Va. Ct. App. Sept. 9, 2011); Resp. Ex. C.

Petitioner appealed his conviction and sentence to the Court of Appeals of Virginia, asserting that:

1. The trial court erred in refusing to instruct the jury on the right to arm oneself in self-defense.
2. The evidence was insufficient to show that there was a permanent and significant physical impairment to support the conviction of malicious wounding.
3. His right to a speedy trial as guaranteed by Va. Code §19.2-243 was violated.

The Virginia Court of Appeals denied the petition for appeal in part, but granted petitioner an appeal on the claim of the sufficiency of the evidence to sustain the malicious wounding conviction. Resp. Ex. B-C. After briefing and oral argument, the Court of Appeals affirmed petitioner's conviction and sentence. Kersev v. Commonwealth. R. No. 2567-10-1 (Va. Ct. App. July 10, 2012); Resp. Ex. D. On April 4, 2013, the Supreme Court of Virginia refused Kersey's petition for further review. Kersev v. Commonwealth. R. No. 121560 (Va. Apr. 4, 2013).

On November 4, 2013, petitioner filed a petition for a writ of habeas corpus in the City of Norfolk trial court, which including a supplement to the petition raised the claims that:

A. Counsel obtained petitioner's signature on a continuance order through intentional deception.
B. Counsel failed to subject the prosecution to adversarial testing.
C. Counsel erroneously invoked the defense of self-defense.
D. Counsel added unsupported facts to the record.
E. Counsel failed to request an jury instruction on abolition of parole.
F. Appellate counsel adopted trial counsel's arguments without thoroughly ...

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