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Fentress v. Clarke

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

July 28, 2016

Rojai Lavar Fentress, also known as Karim J. ShabazzAllah Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

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

         Rojai 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 granted.[1]

         I.

         Petitioner 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.

         Petitioner 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.

         The 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).

         Following 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, Ex. 5.

         On 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.

         On or about July 29, 2015, petitioner filed the instant petition, wherein he challenges his convictions on the following grounds:

(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 ...

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