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Eason v. Clarke

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

October 6, 2016

Anthony James Eason, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Liam O'Grady United Stales District Judge

         Anthony 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.

         I. Background

         Petitioner 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.

         Petitioner 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.

         After 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.

         Case 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 No. 150415.

         On 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 witness.
2. Violated the fundamental fairness of petitioner's trial.
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 co-defendant's identification.
7. Failed to raise newly discovered evidence of co-defendant's incompetency and ...

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