United States District Court, E.D. Virginia, Newport News Division
matter comes before the court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct a Sentence
("Motion"), filed by David Anthony Runyon
("Petitioner") on February 4, 2016. ECF No.
511.Further before the court are the
Petitioner's First Motion for Discovery, filed on
December 9, 2015, ECF No. 491, and Second Motion for
Discovery, filed on April 1, 2016. ECF No. 530. All matters
have been fully briefed and are ripe for decision. For the
reasons contained herein, the First Motion for Discovery is
DENIED, and the Second Motion for Discovery
is DENIED. The Motion to Vacate brought
pursuant to 28 U.S.C. § 2255 is DENIED.
April 29, 2007, Cory Allen Voss ("Voss"), an
officer in the United States Navy, was murdered. At the time,
Voss was married to Catherina Voss ("Cat"), and the
couple had two children, ages eight and seven. He was
stationed out of Norfolk Naval Base, and lived in Newport
News, Virginia, with his wife and children. On April 29,
2007, Voss returned home from a twenty-four hour shift aboard
the USS Elrod, where he served as the Communications
Officer. That night, Cat asked Voss to go to the ATM at
Langley Federal Credit Union ("LFCU") in Newport
News, Virginia. The next morning, Voss was found dead in his
truck, after being shot five times with a .357 revolver as
part of a murder-for-hire conspiracy. The facts neither start
nor end here.
presented at trial revealed that in 2006, while Voss was at
sea on a six-month deployment, Cat began having an
extramarital affair with Michael Draven ("Draven").
After Voss returned home from that deployment, Cat and Cory
Voss began experiencing financial difficulties, and the
affair between Cat and Draven remained ongoing. Cat had no
independent source of income, and Draven had no regular
employment, but earned some money from participating in
experimental clinical drug studies. Cat and Draven realized
that if they were to stay together, and have the money to
live the lavish lifestyle they wanted, they needed to get rid
of Voss. As a member of the United States Navy, Voss had a
life insurance policy through the Office of
Servicemember's Group Life Insurance ("SGLI"),
which named Cat as the primary beneficiary. Once Voss was
dead, Cat would receive the $400, 000 SGLI life insurance
policy benefit, together with other Navy spousal benefits.
Draven decided that the best way to accomplish their goal was
to hire someone to commit the actual murder. Draven had met
David Anthony Runyon ("Runyon") while participating
in experimental clinical drug trials, and Draven now reached
out to Runyon about joining the conspiracy. Runyon was a
former police officer and former member of the United States
Army, as well as a firearm enthusiast. Runyon agreed to act
as the triggerman, in exchange for payment. Once Runyon
agreed to participate, phone records show that the defendants
began to communicate and plan how to commit the crime.
April 20, 2007, Cat Voss opened an account with LFCU, into
which she deposited only five dollars. On April 29, 2007, the
day of the murder, Runyon bought a .357 magnum Taurus
revolver from George Koski in Morgantown, West Virginia,
where Runyon was then living. Koski testified that he wrote
down Runyon's driver's license number and phone
number, and he also provided Runyon with some old ammunition.
Koski further testified that the type of gun he sold Runyon
could shoot both .357 magnum and .38 special cartridges. That
same day, Runyon drove from Morgantown to Newport News,
Virginia, to complete his part of the crime. He stopped at
payphones along the way, including one at a Newport News
Waffle House, to communicate with Draven, and Draven provided
him with identifying information about Voss's truck.
Runyon wrote down this information on a map of the Hampton
Roads area, which police later discovered in Runyon's
car. Phone records also indicate multiple calls between
Draven and Cat Voss during this same time span.
on the night of April 29, 2007, around 11:00 p.m., Cat sent
Voss to the ATM at LFCU. At approximately 11:31 p.m., Voss
attempted a transaction but entered the wrong personal
identification number. Surveillance footage and phone records
reveal that Voss was talking to Cat on his cell phone at this
time. At around 11:33 p.m., while Voss was still at the ATM,
video shows that an assailant wearing a black hoodie climbed
into Voss's truck. Voss reentered his truck at around
11:36 p.m. and began to drive away from the ATM, before
returning at approximately 11:41 p.m. to attempt three
withdrawals. All the withdrawals were denied for insufficient
funds, because unbeknownst to Voss, Cat had placed only five
dollars in the account. Voss then got back in his truck and
drove away. He was found dead in his truck the next morning
in a nearby parking lot. He had been shot five times, with
three of the shots being fatal. Four hollow-point bullets and
one jacket were recovered. The bullets were identified as .38
class, which can be used with guns capable of firing .357
magnum and .38 special cartridges.
few days after the murder, Runyon checked back into a
clinical drug study, and ordered online a stainless steel
bore brush, which is used to clean the inside of the barrel
of a gun, to be shipped to his West Virginia address, but
under a false name. Expert testimony revealed this type of
brush can impact examinations that attempt to link bullets to
a specific gun. Testimony also revealed that in the Fall of
2007, Runyon had a friend pawn his .357 Taurus magnum
revolver several times. Then, in December 2007, Runyon
instructed his friend to retrieve the firearm from the pawn
shop one last time, and to give the gun back to him. The
police were unable to locate the gun after its return to
the police were beginning the investigation into the crime,
the defendants were working together to hide evidence of the
murder. Although Cat had received an initial $100, 000 death
gratuity benefit from the United States Navy, which she and
Draven quickly spent, she had yet to receive the $400, 000
life insurance benefit on Voss. In order to receive the full
payout, Cat had to clear herself from suspicion, and emails
and wiretaps showed that the defendants coordinated amongst
themselves to align their alibis and hide their relationships
with each other from the investigators.
police interviews, the defendants gave conflicting stories
and attempted to obstruct the investigation. Runyon denied
owning any firearms, and he was unable to confirm his
whereabouts on April 29 and 30, 2007. All of the parties
denied the relationship between Draven and Cat for several
months, although Draven did eventually admit the affair to
the police.Both Draven and Runyon stated they had met
or called each other from a Waffle House in Newport News
during the Spring of 2007. Draven further admitted that
Runyon used the payphone there to talk with him on the night
of the murder, although Draven claimed that Runyon stopped at
the Waffle House on his way to an out-of-state fishing trip.
December 2007, nearly eight months after the murder, police
executed search warrants in West Virginia for Runyon's
residences, vehicle, and storage unit, and the contents of
the search were introduced during the guilt phase of trial.
In the console of Runyon's car, agents found a map of
Newport News, Virginia, on which Runyon had written the
following: "Langley Federal Credit Union, 97 grey Ford
Ranger, FL hubcap missing, tailgate down, J. Morris Blvd,
Cory." The description of the Ford Ranger matched the
description of Voss's truck, and J. [Clyde] Morris
Boulevard is a street near the LFCU that Voss went to on the
night he was murdered. Also found with the map was a
photograph of Cat and Draven, with their names, addresses,
and social security numbers written on the back.
Runyon's residence, the investigators located a shopping
list written by Runyon, which included a taser, Spyderco
knife, tarp, trash bag, boots, gloves, military-style pants,
and a black hoodie. Runyon had also written on that list the
location of LFCU, and travel time and mileage from
Morgantown, West Virginia, to Newport News, Virginia.
Although Runyon had apparently requested a payment of five
hundred dollars ($500) up front for the murder, a Western
Union receipt indicated that Runyon received two hundred
seventy-five dollars ($275) from Draven's brother, Randy
Fitchett, on June 1, 2007. Fitchett testified, and while he
denied that he sent the money order, he recalled going with
Draven to send the money order to a friend of Draven's.
Additionally, the police found boxes of .38 special and .357
magnum bullets in the basement of Runyon's former
residence. Five of the Winchester .357 magnum
hollow-point bullets were missing from the box, and medical
reports revealed that Voss had been shot five times by
hollow-point .38 class bullets. Expert witness testimony
provided that .38 class bullets include .357 magnum and .38
special bullets. Multiple witnesses also testified that
Runyon had bragged about killing Voss, or a military member
or other unidentified person, for money.
February 2008, a five-count Indictment was returned against
Runyon, Cat, and Draven. Although Cat pled guilty in exchange
for a life sentence, the above facts were established through
evidence and testimony during the trial against Runyon and
Draven. The jury then found Runyon guilty of Conspiracy to
Commit Murder for Hire, Carjacking Resulting in Death, and
Murder with a Firearm in Relation to a Crime of Violence.
February 13, 2008, a federal grand jury returned a five-count
Indictment against the Petitioner and his co-defendants,
Michael Draven and Catherina Voss, in the murder of Cat
Voss's husband, Cory Voss. ECF No. 3. The Indictment
charged the defendants with Conspiracy to Commit Murder for
Hire, in violation of 18 U.S.C. § 1958(a) (Count One);
Carjacking Resulting in Death, in violation of 18 U.S.C.
§§ 2119 and 2 (Count Two); Bank Robbery Resulting
in Death, in violation of 18 U.S.C. §§ 2113(a),
(e), and 2 (Count Three); Conspiracy to Commit Robbery
Affecting Commerce, in violation of 18 U.S.C. § 1951(a)
(Count Four); and Murder with a Firearm in Relation to a
Crime of Violence, in violation of 18 U.S.C. §§ 924
(j) and 2 (Count Five). Id.
Indictment also included a Notice of Special Findings for the
death penalty, pursuant to 18 U.S.C. §§ 3591 and
3592. Id. at 13-14. The Notice set out the statutory
requirements for the death penalty: the defendants were more
than eighteen years old at the time of the offense; there was
the requisite intent to cause death, serious bodily injury,
or engage in acts of violence using lethal force or knowingly
creating a grave risk of death; and there were statutory
aggravating factors. Id. at 13. As to Counts One,
Two, Three, and Five, all three defendants were found to meet
the statutory aggravating factors of having "committed
the offense as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value,
" and having "committed the offense after
substantial planning and premeditation to cause the death of
a person." Id. at 13-14. Additionally, for
those same counts, the grand jury found Cat Voss and Draven
satisfied the statutory aggravating factor of having
"procured the commission of the offense by payment, or
promise of payment, of anything of pecuniary value."
Id. at 14.
March 4, 2008, Lawrence Woodward and John Babineau were
appointed to represent the Petitioner. On July 17, 2008, the
government filed its Notice of Intent to Seek a Sentence of
Death against the Petitioner. ECF No. 67. The government also
filed a Notice stating that it would not seek the death
penalty against Draven. Case No. 4:08crl6-2, ECF No. 68. Cat
Voss pled guilty to all five counts the following day on July
February 13, 2009, Babineau withdrew from the
Petitioner's case due to a conflict of interest, and
attorney Stephen Hudgins was appointed. ECF No. 161. The
Petitioner filed various pre-trial motions and reports,
on June 30, 2009, the jury trial against the Petitioner and
Draven commenced. The first two days consisted of voir dire,
and the jury was impaneled on July 2, 2009, after which
opening statements and the presentation of evidence began. On
July 15, 2009, at the conclusion of all evidence, the court
dismissed Count Three, pursuant to Federal Rule of Criminal
Procedure 29. On July 17, 2009, the jury found the Petitioner
and Draven guilty as to Counts One, Two, and Five, and not
guilty as to Count Four. Verdict Form, ECF No. 245, attached
hereto as Exhibit A. On July 22, 2009, the trial continued
with the eligibility phase, in which the government argued
that the Petitioner was eligible to receive the death
penalty. The jury found that the Petitioner intentionally
killed Cory Voss. Special Verdict Form - Eligibility Phase,
ECF No. 255, attached hereto as Exhibit B. The jury also
found two statutory aggravators: (1) the Petitioner
"committed the offense in consideration for the receipt
of, or in expectation of the receipt, of anything of
pecuniary value"; and (2) the Petitioner "committed
the offense after substantial planning and premeditation to
cause the death of a person." Id. On August 19,
2009, the penalty phase of the trial commenced. On August 27,
2009, the jury returned a recommendation for death on Counts
One and Five, and life imprisonment on Count Two. Special
Verdict Form - Selection Phase, at 5, ECF No. 291, attached
hereto as Exhibit C. The jury found four non-statutory
aggravating factors. Id. The jury also found two
statutory mitigating factors and eight non-statutory
mitigating circumstances proposed by defense counsel, along
with finding three mitigating factors of their own accord.
Id. On December 4, 2009, pursuant to the
jury's verdict, the Petitioner was sentenced to death for
Counts One and Five and to life imprisonment without the
possibility of release for Count Two. ECF No.
Petitioner timely filed an appeal, and on February 25, 2013,
the Fourth Circuit Court of Appeals affirmed his conviction
and sentence. United States v. Runyon, 707 F.3d 475
(4th Cir. 2013) . On October 6, 2014, the Supreme Court
denied his petition for writ of certiorari. Runyon v.
United States, 135 S.Ct. 46 (2014) (No. 13-254). The
Petitioner filed his Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct a Sentence on October 5, 2015.
ECF No. 478. The government filed its Response on January 11,
2016, ECF No. 497, and the Petitioner filed his Reply on
March 28, 2016. ECF No. 526.
December 9, 2015, the Petitioner filed his First Motion for
Discovery. ECF No. 491. The government submitted its Response
on January 15, 2016, ECF No. 500, and the Petitioner filed
his Reply on January 29, 2016. ECF No. 506. Both the Response
and the Reply to the Discovery Motion incorporated the
Response and Reply to the § 2255 Motion. On April 1,
2016, the Petitioner filed his Second Motion for Discovery.
ECF No. 530. The government filed a Response on April 8,
2016, ECF No. 532, and the Petitioner submitted a Reply on
April 13, 2016. ECF No. 533.
February 4, 2016, the Petitioner filed an amended Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
a Sentence. The government filed its Response to the amended
Motion on April 22, 2016. The Petitioner submitted his Reply
to the amended filings on July 7, 2016. As Fourth Circuit
precedent provides that an amended pleading supersedes the
original, the court will now consider the amended Motion and
corresponding Response and Reply. See Young v. City of
Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001)
(w[A]n amended pleading supersedes the original
pleading, rendering the original pleading of no
effect."). The court will also consider the First and
Second Discovery Motions in the same sections as the claims
to which each discovery request relates.
STANDARDS OF REVIEW
MOTIONS BROUGHT PURSUANT TO 28 U.S.C. § 2255
prisoner may challenge a sentence imposed by a federal court,
if (1) the sentence violates the Constitution or laws of the
United States; (2) the sentencing court lacked jurisdiction
to impose the sentence; (3) the sentence exceeds the
statutory maximum; or (4) the sentence "is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
A sentence is "otherwise subject to collateral
attack" if a petitioner shows that the proceedings
suffered fromn*a fundamental defect which
inherently results in a complete miscarriage of
justice.'" United States v. Addonizio, 442
U.S. 178, 185 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)) .
petitioner bears the burden of proving one of those grounds
by a preponderance of the evidence. See Miller v.
United States, 261 F.2d 546, 547 (4th Cir.
1958). If he satisfies that burden, the court may vacate, set
aside, or correct the sentence. 28 U.S.C. § 2255(b).
However, if the motion, when viewed against the record, shows
that the petitioner is entitled to no relief, the court may
summarily deny the motion. Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Ineffective Assistance of Counsel
cases where a petitioner claims to have received ineffective
assistance of counsel as grounds for relief, a petitioner
must show by a preponderance of the evidence that (1) the
attorney's performance was deficient; and (2) such
deficient performance prejudiced the petitioner by
undermining the reliability of the judgment against him.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
deficient performance, counsel's actions or omissions
must be measured against what "an objectively reasonable
attorney would have done under the circumstances existing at
the time of the representation." Savino v.
Murray, 82 F.3d 593, 599 (4th Cir. 1996); see
Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir.
2008) (noting that this is a "difficult" showing
for a petitioner to make). The court must attempt to
"eliminate the distorting effects of hindsight, "
and instead "must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance."
Strickland, 466 U.S. at 689.
demonstrate prejudice, a petitioner must showtta
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. In doing so,
a petitioner "must demonstrate that the error worked to
his *actual and substantial disadvantage, ' not merely
that the error created a 'possibility of
prejudice.'" Satcher v. Pruett, 126 F.3d
561, 572 (4th Cir. 1997) (quoting Murray v. Carrier,
477 U.S. 478, 494 (1986)). Because a petitioner must satisfy
both parts of the Strickland test, a failure to
carry the burden of proof as to one prong precludes relief
and relieves the court of the duty to consider the other.
Strickland, 466 U.S. at 700.
process of law also requires that a defendant receive
effective assistance of counsel on direct appeal. Evitts
v. Lucey, 469 U.S. 387, 396-97 (1985). As with trial
counsel, effectiveness of appellate counsel is evaluated
under the two prongs of Strickland. See Smith v.
Murray, 477 U.S. 527, 535-36 (1986). To determine
effectiveness of appellate counsel, a court must evaluate
whether counsel failed to raisewa particular
nonfrivolous issue [that] was clearly stronger than issues
that counsel did present" on direct appeal. Smith v.
Robbins, 528 U.S. 259, 288 (2000). However, appellate
counsel need not raise every nonfrivolous claim in their
brief. See id.; Jones v. Barnes, 463 U.S.
745, 753 (1983) (WA brief that raises every
colorable issue runs the risk of burying good
arguments."). As to prejudice, the Petitioner must show
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
that could have been "fully and completely addressed on
direct review based on the record" are considered
procedurally defaulted, if raised for the first time during
collateral review. Bousley v. United States, 523
U.S. 614, 622 (1998). In order to obtain collateral relief
based on issues that could have been raised on direct appeal,
but were not, the movant must ordinarily show
"'cause' excusing his procedural default, "
and "'actual prejudice' resulting from the
errors of which he complains." United States v.
Frady, 456 U.S. 152, 167-68 (1982); see also Massaro
v. United States, 538 U.S. 500, 504 (2003) (" [C]
laims not raised on direct appeal may not be raised on
collateral review unless the petitioner shows cause and
prejudice."). "The existence of cause for a
procedural default must turn on something external to the
defense, such as the novelty of the claim or a denial of
effective assistance of counsel." United States v.
Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999).
Prejudice is shown when the alleged errors worked to the
petitioner's "actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions." Frady, 456 U.S. at
the absence of cause for the procedural default and resulting
prejudice, a defendant may proceed with a collateral attack,
if he is able to show that a fundamental miscarriage of
justice would result were his claim denied. United States
v. Maybeck, 23 F.3d 888, 892 (4th Cir. 1994). To
demonstrate a "miscarriage of justice, " the
petitioner "must show actual innocence by clear and
convincing evidence." United States v.
Williams, 396 F.App'x 951, 953 (4th Cir. 2010)
(unpublished); Mikalajunas, 186 F.3d at 493.
Bar on Relitigating Claims Brought on Direct Appeal
petitioner is generally not permitted to relitigate issues
brought on direct appeal in a collateral attack.
Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976) (per curiam). Accordingly, courts may
"refuse to reach the merits of a constitutional claim
previously raised and rejected on direct appeal."
Withrow v. Williams, 507 U.S. 680, 720-21 (1993)
(Scalia, J., concurring in part and dissenting in part)
(collecting cases). Exceptional circumstances, however, such
as an intervening change in the law, may warrant a departure
from this law-of-the-case doctrine. See Davis v. United
States, 417 U.S. 333, 342-47 (1974) (holding that when
relevant substantive law changed after the petitioner's
trial and unsuccessful appeal, the petitioner could file a
§ 2255 motion for collateral relief based on the
intervening change in the law); Jones v. United
States, 178 F.3d 790, 796 (6th Cir. 1999) ("It is
equally well settled that a § 2255 motion may not be
employed to relitigate an issue that was raised and
considered on direct appeal absent highly exceptional
circumstances, such as an intervening change in the
Retroactive Application of New Rules to Cases on Collateral
"new constitutional rules of criminal procedure will not
be applicable to those cases which have become final before
the new rules are announced." Teague v. Lane,
489 U.S. 288, 310 (1989). There are two exceptions to this
bar on retroactivity. First, " [n] ew
substantive rules generally apply
retroactively." Schriro v. Summerlin, 542 U.S.
348, 351 (2004). The other exception is for
"'watershed rules of criminal procedure'
implicating the fundamental fairness and accuracy of the
criminal proceeding." Saffle v. Parks, 494 U.S.
484, 495 (1990) . Only if one of these exceptions is met may
a court retroactively apply a new rule of criminal procedure
to a case on collateral review.
Evaluation of New Claims Contained in ...