United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION GRANTING MOTION TO
E. HUDSON JUDGE
Jamal Jones, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition, " ECF No. 1). The
matter is before the Court on a Respondent's Supplemental
Motion to Dismiss. For the reasons set forth below, the
Supplemental Motion to Dismiss (ECF No. 26) will be granted.
Procedural History and Jones's Claims
was convicted in the Circuit Court of the City of Norfolk,
Virginia ("Circuit Court") of one count of robbery,
two counts of use of a firearm in the commission of a felony,
one count of carjacking, and two counts of conspiracy.
Commonwealth v. Jones, No. CR10003236, at 1 (Va.
Cir. Ct. Apr. 26, 2012). The Circuit Court sentenced Jones to
a total sentence of 65 years, with 40 years suspended.
Id. at 2.
appealed his convictions. The Court of Appeals of Virginia
summarized the evidence of Jones's guilt as follows:
[T]he evidence proved that on January 23 and 24, 2010, James
Smith received several phone calls from "Little
Redge" asking Smith to meet Little Redge at a shopping
center to sell shoes to Little Redge's cousin. Smith
operated an online business, selling clothes and shoes and
delivering merchandise from his van to his customers.
Smith arrived at the shopping center at approximately 2:00
p.m. on January 24, 2010, and stepped outside of his van to
chat with friends as he waited for Little Redge. A short time
later, appellant and two other individuals approached Smith.
Appellate stopped about twelve feet from Smith while the
other two men positioned themselves "strategically"
around Smith. After Little Redge walked past Smith and his
van, Smith became concerned for his safety.
Appellant yelled to Smith, "Get in the van." Smith
responded, "No, I'm not getting in the van."
Appellant lifted his shirt, revealing a handgun, and repeated
his demand. After Smith refused again, appellant stated,
"Give me the f-king keys." Smith threw the keys on
the ground, backed away from the scene, and called the police
from a nearby business. When police recovered the van several
days later, Smith's merchandise had been removed from the
van, but more than a dozen cigarette butts bearing
appellant's DNA were recovered.
Smith identified appellant as one of the perpetrators from a
photographic lineup, and appellant was arrested. When
appellant spoke with Detective J. Baron, appellant admitted
planning the robbery with Little Redge, a/k/a Reginald
Weaver, and Raymond Rainey, a/k/a "Bones, " and
another individual. Appellant appeared at the time and place
of the meeting with Smith, arranged by Little Redge, and
approached Smith with the other men. Appellant denied having
a firearm, however, and also denied taking Smith's keys
and leaving the scene in Smith's van. Upon Detective
Baron's presenting appellant with two photo arrays,
appellant identified Bones and Little Redge. Appellant told
Detective Baron that he and his accomplices "just wanted
the shoes" in the van.
At trial, Detective Baron's notes of his interview with
appellant were admitted into evidence. Nevertheless,
appellant denied making most of the statements and
identifying his accomplices in the photo arrays.
Jones v. Commonwealth, No. 1182-12-1, at 2-3 (Va.
Ct. App. Dec. 6, 2012). The Court of Appeals of Virginia
denied the petition for appeal. Id. at 7. On May 6,
2013, the Supreme Court of Virginia refused Jones's
petition for appeal. Jones v. Commonwealth, No.
130038, at 1 (Va. May 6, 2013).
October 2, 2013, Jones filed a petition for a writ of habeas
corpus with the Supreme Court of Virginia. Petition for Writ
of Habeas Corpus at 1, Jones v. Dir., Va. Dep 't of
Corr., No. 131543 (Va. filed Oct. 2, 2013). On November
5, 2013, the Supreme Court of Virginia dismissed Jones's
petition pursuant to Slayton v. Parrigan, 205 S.E.2d
680 (Va. 1974), because Jones could have but failed to raise
his claims on direct appeal. Jones v. Dir., Va.
Dep'tof Corr., No. 131543, at 1 (Va. Nov. 5, 2013).
January 21, 2014, Jones filed a Motion to Vacate Void
Judgment in the Circuit Court. Motion to Vacate Void
Judgment, Jones v. Commonwealth, No. CL14-483 (Va.
Cir. Ct. filed Jan. 21, 2014). The Commonwealth opposed
Jones's Motion, arguing that the Circuit Court lacked
jurisdiction to consider the Motion because, under Rule 1:1
of the Rules of the Supreme Court of Virginia, the Circuit
Court "lost jurisdiction to modify or vacate the
[sentencing] order" when twenty-one (21) days had passed
from entry of the sentencing order. Response in Opposition to
Motion to Vacate at 2, Jones v. Commonwealth, No. CL
14-183 (Va. Cir. Ct. filed Mar. 10, 2014) (citation omitted).
On March 31, 2014, the Circuit Court denied Jones's
Motion "because none of the allegations contained
therein would render the judgment void." Jones v.
Commonwealth, No. CL14-83, at 1 (Va. Cir. Ct. Mar. 31,
2014). Jones appealed. On August 29, 2014, the Supreme Court
of Virginia refused Jones's appeal. (See Supp.
Br. Supp. Mot. Dismiss at 15 n. 15.)
January 8, 2015, Jones filed a second petition for a writ of
habeas corpus with the Supreme Court of Virginia. Petition
for Writ of Habeas Corpus at 1, Jones v. Va. Dep't of
Corr., No. 150037 (Va. filed Jan. 8, 2015). On April 10,
2015, the Supreme Court of Virginia dismissed Jones's
petition as time-barred. Jones v. Va. Dep 't of
Corr., No. 150037, at 1 (Va. Apr. 10, 2015).
April 23, 2015, Jones filed his § 2254 Petition in this
Court. (§ 2254 Pet. 16.) In his § 2254
Petition, Jones raises the following claims for relief:
Claim One: "Ineffective assistance of counsel in
violation of due process that is constitutionally defective
through the Fifth, Sixth, and Fourteenth Amendment[s],
resulting in the conviction of one who is actually innocent,
" because of counsel's failure to:
a. "[F]ile a motion to dismiss all charges or a motion
for an instructed verdict of acquittal based on the
insufficiency of the evidence for the Commonwealth's
failure to prove guilt beyond a reasonable doubt" (Br.
Supp. § 2254 Pet. 1, ECF No. 1-2);
b. Present an article from the Virginia Pilot in
which a spokesperson for the Norfolk Police Department stated
that carjacking is not recognized as a crime (id. at
2); and, c. "[H]old the prosecution to its heavy burden
of proof beyond a reasonable doubt on the carjacking and
robbery" (id. at 3).
Claim Two: "Ineffective assistance of counsel in
violation of due process for counsel's failure to object
and produce evidence contradicting the Commonwealth's
version of the facts that is constitutionally defective
through the Fifth, Sixth, and Fourteenth Amendments[s],
" because of counsel's failure to:
a. "[O]bject and present evidence of the
Commonwealth's knowing uses of perjured testimony and
contradictory evidence" (id. at 4);
b. "[O]bject to the failure of the Commonwealth to
disclose exculpatory and impeachment evidence" and to
"ask for a continuance to prepare a defense for it"
(id. at 5); and,
c. "[O]bject to the use of or file a suppression motion
concerning Reginald Weaver's alleged statement and
Baron's testimony and exhibits and ...