United States District Court, E.D. Virginia, Alexandria Division
Rojai Lavar Fentress, also known as Karim J. ShabazzAllah Petitioner,
Harold W. Clarke, Respondent.
Ellis, III United States District Judge.
Lavar Fentress, also known as Karim J. ShabazzAllah, 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 1997 convictions for
first degree murder and use of a firearm in the commission of
a murder, entered in the Circuit Court of the City of
Richmond, Virginia. On February 29, 2016, respondent filed a
Rule 5 Answer accompanied by a Motion to Dismiss and
supporting brief. Dkt. Nos. 14, 15, 16. Petitioner was given
the opportunity to file responsive materials, pursuant to
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975),
and he has filed a response. Dkt. No. 32. For the reasons
that follow, respondent's Motion to Dismiss must be
was convicted of first degree murder and use of a firearm in
the commission of a murder by a jury in the Circuit Court for
the City of Richmond on May 22, 1997. Case No. CR9601318F-01,
-02; Dkt. No. 16, Ex. 1. At the time of the offense,
petitioner was a juvenile, so the trial court, pursuant to
Virginia Code § 16.1-272, sentenced petitioner to 53
years' incarceration. Id.
appealed his convictions to the Court of Appeals of Virginia,
which granted review of his claims. By memorandum opinion and
order dated September 15, 1998, the Court of Appeals affirmed
petitioner's convictions. Id. Petitioner sought
further review by the Supreme Court of Virginia, which
refused the petition for appeal on January 14, 1999. Rec. No.
982115; Dkt. No. 16, Ex. 2.
pertinent facts, supported by the record and reported by the
Court of Appeals of Virginia, are as follows:
[T]he victim, Thomas Foley, and his companion, Julie Howard,
drove to the Midlothian Village Apartments to purchase
cocaine. Howard parked the car near a streetlight in a
well-lit area in front of the breezeway to one of the
apartment buildings. The victim rolled down the passenger
side window and peered out at a group of six to eight young
men standing approximately fifty yards away from the vehicle.
One of the men, whom Howard identified in court as the
[petitioner], approached the victim and asked what he wanted.
When the victim told [petitioner] that he only "dealt
with" another individual, [petitioner] said the victim
would have to "deal with me" and walked away from
title car and rejoined the group.
A couple of minutes later, [petitioner] returned to the car
and showed the victim two "zip bags" of crack
cocaine. The victim removed $57 from his pocket, examined the
bags of cocaine, told [petitioner] that the bags did not
appear to contain enough cocaine, and asked if [petitioner]
"could do better than that." [Petitioner] walked
away momentarily and then returned to the car for a third
time. Howard testified that [petitioner] looked "very
nervous" and that he held his hand in his pants pocket
with his shirt "hanging over his hand."
[Petitioner] told the victim, "If you want to deal with
me, you have to get out of the car." The victim exited
the car and followed the [petitioner] into an apartment
building breezeway. Howard saw no other persons enter the
breezeway, but she testified that it was too dark for her to
see inside the breezeway. "[W]ithin five, ten seconds,
tops" after seeing [petitioner] and the victim enter the
breezeway, Howard heard a single gunshot. The victim ran from
the breezeway, reentered the car, and said, "I have been
shot in the heart, and I'm going to die. [T]he son of a
bitch shot me." The victim later died.
Fentress v. Commonwealth. No. 2056-97-2, 1998 WL
614169, at *1 (Va. Ct. App. Sept. 15, 1998).
the denial of his direct appeal, petitioner filed motions to
vacate his convictions and for a new trial on September 23,
1999, January 7, 2000, and June 29, 2001, on the ground that
his case had been transferred to circuit court without giving
proper notice to his biological father. Dkt. No. 16, Ex. 3.
The trial court denied petitioner's motions on October
30, 2001. Dkt. No. 16, Ex. 4. Petitioner appealed the trial
court's ruling to the Supreme Court of Virginia, which
refused his petition for appeal on July 1, 2002. Dkt. No. 16,
November 20, 2006, petitioner filed an "Independent
Action for Relief from Judgment" in the trial court,
along with a memorandum in support of the motion. Dkt. No.
16, Ex. 6. The trial court denied the motion on February 1,
2007. Dkt. No. 16, Ex. 7. The Supreme Court of Virginia
refused petitioner's subsequent petition for appeal on
September 24, 2007. Dkt. No. 16, Ex. 8. Petitioner never
filed a form petition for a writ of habeas corpus in the
Virginia state courts.
about July 29, 2015, petitioner filed the instant petition,
wherein he challenges his convictions on the following
(1) Gateway Claim: Petitioner is actually innocent of the
murder and use of a firearm in the commission of murder
charges on which he was convicted, as demonstrated by a sworn
affidavit from the actual killer confessing to the crimes.
This affidavit ...