United States District Court, E.D. Virginia, Alexandria Division
O'Grady United Stales District Judge
James Eason, a Virginia inmate, has filed a petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his convictions entered
in the Circuit Court of the City of Newport News. On July 8,
2016, respondent filed a Motion to Dismiss and Rule 5 Answer,
along with a supporting brief and exhibits. Petitioner, by
counsel, filed an Opposition to Motion to Dismiss on July 19,
2016. By Order dated August 22, 2016, petitioner's Motion
to File a Supplemental Brief in Opposition to Motion to
Dismiss was granted. On September 2, 2016, respondent filed a
Response to Supplemental Brief in Opposition to Motion to
Dismiss. For the reasons that follow, respondent's Motion
to Dismiss will be granted, and the petition will be
dismissed, with prejudice.
is detained pursuant to a final judgment of the Circuit Court
of the City of Newport News, entered December 9, 2011. Motion
to Dismiss at Ex. 1. Pursuant to a bench trial, petitioner
was convicted of two counts of aggravated malicious wounding
in violation of Virginia Code § 18.2-51.2(A), two counts
of use or display of a firearm during the commission of a
felony in violation of Virginia Code § 18.2-53.1, and
one count of possession of a firearm by a felon in violation
of Virginia Code § 18.2-308.2. Id. Petitioner
was sentenced to fifty three years imprisonment, with no
years suspended. Id.
pursued a direct appeal to the Court of Appeals of Virginia,
which was granted in part and denied in part. Id. at
Ex. 3. The Court of Appeals of Virginia affirmed
petitioner's convictions. Id. at Ex. 4. The
Supreme Court of Virginia subsequently refused his petition
for appeal on October 9, 2013. Id. at Ex. 5.
pursuing his direct appeal, petitioner timely filed a
petition for a writ of habeas corpus in the Circuit Court of
the City of Newport News on October 10, 2014. The facts as
laid out by the state habeas court are as follows.
Lanita White was watching over Azire Marshall, the child of
her girlfriend, Laura Marshall, on [November 10, 2006]. White
and the child were at Marshall's apartment in Ashton
Green on Seagull Court. White recalled that Marshall had
instructed her not to turn over the child to the father,
[petitioner]. [Petitioner's] mother and some other
individuals, not including [petitioner], came to the
apartment to retrieve the child. White told them she could
not give them the child until the mother, Marshall, returned.
The individuals forcefully took the child from White's
possession; a male grabbed her arm while the grandmother,
[petitioner's] mother, took the child. White then left
the house and went to the residence of her friend, Jamel
Bennette. White told Bennette about the incident with
[petitioner's] family and child. Bennette decided to go
to Ashton Green and Devon Thomas accompanied Bennette along
with Rodney Williams and Ben Shelvin. Bennette told Thomas
they were going to talk to somebody about White and a baby.
When they arrived at the apartment complex, they saw a man
who Thomas identified in Court as Mitchell. "Jamel put
his head out the window and asked Mitchell to get
[petitioner]." They sat parked in the car until
[petitioner] and "Rio", Mitchell's street name,
arrived three to five minutes later. [Petitioner] motioned
for Bennette to approach him. Thomas and Bennette got out of
the car and walk [sic] toward Mitchell and [petitioner].
While the men were arguing, Mitchell and [petitioner] pulled
out their guns and began shooting at Thomas and Bennette;
Thomas and Bennette ran in different directions.
Thomas testified he suddenly heard swearing, turned, and was
shot in the chest five inches from his heart. He ran toward
the truck and saw Bennette was also running. As Thomas ran,
he was shot in the back and buckled. Thomas saw [petitioner]
and Mitchell shooting at Bennette, while Bennette was lying
by a light pole. Thomas thought he heard at least nine shots.
Thomas believed Mitchell had shot him.
White saw both victims, Thomas and Bennette, shot by
[petitioner] and Rio. White testified [petitioner] was
continuously shooting Bennette from behind. Rodney Williams
testified [petitioner] pointed his gun at Bennette, while
Mitchell had his gun pointed at Thomas. White did not see the
victims pull out guns, but only saw them run. She had no
personal knowledge that would indicate anyone had a weapon
when they went to Ashton Green and she never saw a weapon in
Thomas' or Bennette's possession. Additional
testimony corroborated that Bennette and Thomas did not have
guns with them and they did not own guns.
Prior to the argument and shooting, Williams called Marcus
George to meet them over at the apartment complex, because he
knew George had a gun. After the shooting, George, armed with
a gun, pulled up in a gray Chevy Caprice. George pulled in
while [petitioner] and Rio were leaving the scene. Rodney
Williams checked on Bennette before jumping in George's
car to follow [petitioner] and Rio. ...
George's gun was in between the seat in the car as he and
Williams followed [petitioner] and Mitchell. Williams and
George were stopped by the police, and Williams admitted they
were a little belligerent because of the situation. ...
Officer Kelly recovered the gun between the driver and the
center console, between the seats. George was released on a
summons for a concealed weapon and went back to the scene.
The weapon recovered was a Cobra firearm FS-380, purchased by
Marcus George in Atlanta and registered lawfully. It was
determined that George was not involved in the shooting, that
he had actually been chasing down the shooters for his
friends, and based on that the police did not charge him
further. There was no contention that this gun was involved
in the shooting of Thomas and Bennette. The gun was destroyed
on March 1, 2008.
Newport News Police Detective Darlene Best investigated the
shooting of Jamel Bennette and Devon Thomas. She received a
report form Detective A.M. Hahn summarizing his interview
with witness Gwendolyn T. Priest. Detective Hahn wrote a
report on November 15, 2006, indicating that Priest
identified George's vehicle as the vehicle she described
leaving the scene. Detective Best was aware the vehicle was
stopped with George and Williams inside. The report indicated
that Priest stated she saw a male with a white T-shirt, who
she previously described as a black male, almost shaved
hairstyle, around 25 years of age, and 5' 11",
running from the area of the shooting and what Priest
described as a shiny semi-automatic handgun wrapped in a coat
which he threw into the back of a vehicle.
During the trial, [petitioner] testified that he retrieved
his son from White on November 6, 2010 [sic]. [Petitioner]
testified that he was sitting at home when Rio knocked on his
door. According to [petitioner], he lived in the same
apartment complex as White and Marshall, his child's
mother, and drove with Rio to the apartment. [Petitioner]
claimed that he was going to Marshall's house when
Bennette hollered something. He contended that Bennette was
being loud and threatening, and that he did not have a
problem with Bennette or Thomas. [Petitioner] claimed he was
trying to calm the situation down. [Petitioner] testified he
saw Thomas out of the corner of his eye moving, and
"seen him pull out, and by the time he did that, he see
Rio shooting." [Petitioner] testified that he did not
have a gun and did not shoot anyone. [Petitioner] never
claimed self-defense. [Petitioner] testified he saw Thomas
with a black revolver, but did not see Bennette with a gun
until Thomas was shot. [Petitioner] testified he never
actually saw Thomas or Bennette fire a gun. He claimed that
he left the scene and never made contact with police for
three years even though he knew there were warrants out for
his arrest. [Petitioner] said he wanted to get money together
to be properly represented and to find his son. [Petitioner]
never saw a car matching the description of Marcus
George's car that day.
[Petitioner] admitted to Jahil Wiley, a convicted felon who
was incarcerated on pending robbery charges at the time of
[petitioner's] trial, that he was responsible for the
shootings and planned to put in all on his co-defendant.
On November 8, 2011, [petitioner] filed a Motion for New
Trial, Bond, and to Set Aside the Verdict, and Renewed Motion
to Dismiss the Charges Due to Destruction of Evidence, which
was dated November 4, 2010. After trial, [petitioner]
produced an affidavit procured from Gwendolyn Priest.
[Petitioner] alleged that Priest's statement in the
affidavit, dated September 21, 2011, was different from the
statement that Detective Hahn took at the time of the
incident five years earlier. In that prior statement Priest
said that two men, one of which was armed, fled from the
scene of the shooting. Allegedly, in the affidavit, Priest
stated she believes she told the police both men were armed.
[Petitioner] argued the possession of guns by both Rodney
Williams and Marcus George after the shooting
"permeates" the entire case. [Petitioner] argued he
attempted to talk to Priest prior to trial but was unable to
do so. The affidavit was obtained after trial by
[petitioner's] family who obtained money to hire a
private investigator to interview Priest.
The Court ruled the affidavit from Priest was not
after-discovered evidence and denied the motion. The decision
was upheld on appeal by the Court of Appeals and Supreme
Court of Virginia.
No. CR14H02102 (alterations omitted). The circuit court
denied and dismissed the habeas petition by order dated
December 16, 2014. Id. The Supreme Court of Virginia
denied the petition for appeal on February 24, 2016. Record
March 9, 2016, petitioner filed the instant federal petition,
wherein he challenges his conviction on nine allegations of
ineffective assistance of counsel. Specifically, he alleges
that his counsel:
1. Failed to investigate and compel petitioner's key
2. Violated the fundamental fairness of petitioner's
3. Failed to raise Brady violation on appeal.
4. Failed to object to Bradv violation when
testimony of two suppressed photo spreads were presented
implying third party guilt.
5. Failed to communicate with petitioner's
co-defendant's attorney and discovery co-defendant's
mental health history.
6. Failed to communicate with petitioner's
co-defendant's attorney and investigate
7. Failed to raise newly discovered evidence of
co-defendant's incompetency and ...