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Hayes v. Director, Va. Dept. of Corr.

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

February 3, 2017

HERMAN LEE HAYES, JR., Petitioner,


          Roderick C. Young United States Magistrate Judge.

         Herman Lee Hayes, Jr., a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his convictions in the Circuit Court for the City of Virginia Beach, Virginia ("Circuit Court"). Respondent moves to dismiss on the ground that, inter alia, the one-year statute of limitations governing federal habeas petitions bars the § 2254 Petition. Despite receiving Roseboro[1] notice as well as an extension of time, Hayes has not filed a response to the Motion to Dismiss. Hayes has also filed a Motion for Discovery. (ECF No. 8.) For the reasons set forth below, Respondent's Motion to Dismiss (ECF No. 15) will be GRANTED, and Hayes's Motion for Discovery (ECF No. 8) will be DENIED.


         On February 13, 2008, a jury convicted Hayes of simple assault or assault and battery of a law enforcement officer, two counts of abduction, attempted robbery, robbery, eluding police-endangerment, four counts of use of a firearm in the commission of a felony, wearing a mask in public, resisting arrest, and driving on a suspended or revoked operator's license. Commonwealth v. Hayes, Nos. CR06-1656/CR06-1635, at 1 (Va. Cir. Ct. Sept. 15, 2008). Following a bench trial on July 29, 2008, Hayes was convicted of possession of a firearm by a violent felon. Id. On September 15, 2008, the Circuit Court entered final judgment and sentenced Hayes to a total sentence of 31 years and 36 months. Id. at 2.

         Hayes appealed to the Court of Appeals of Virginia, arguing that the Circuit Court erred by: (1) denying his motion to dismiss the abduction charges because the restraint employed was inherent in the crime of robbery; (2) denying his motion to retest DNA located on the firearm; and (3) finding that the evidence was sufficient to support his convictions for two counts of abduction, four counts of use of a firearm in the commission of a felony, and one count each of attempted robbery, robbery, eluding, wearing a mask in public, resisting arrest, assault and battery on a police officer, and driving on a suspended license. (ECF No. 16-1, at 1-4.) The Court of Appeals denied Hayes's appeal. (Id. at 1.) With respect to the sufficiency of the evidence, the Court of Appeals stated:

[T]he evidence showed that Paul Miller was employed by Aristocrat Towing and, on the day in question, he was towing vehicles near the oceanfront. Miller testified appellant approached him and asked if a certain car had been towed. Miller checked and told appellant that the car was in the impound lot of Aristocrat Towing. Miller agreed to drive appellant to Aristocrat Towing. When Miller arrived at Aristocrat Towing, Philip Watson was standing outside the locked gate. Miller testified appellant stated he did not have the money to get his car, but he wanted to get a few items from the car. Miller next testified that he told appellant he could go to his car to retrieve the items. Miller and Watson then entered the office to complete the paperwork for Watson's car.
Miller then testified appellant entered the office with a bandana over the bottom part of his face, covering everything but his eyes, and pointed a firearm at Miller and Watson, demanded money, and told them to get down on the floor. Miller further testified appellant took Watson's wallet and Watson's eighty-five dollars on the counter and demanded the money in the safe. Miller told appellant that he did not know the combination. Miller testified he told appellant there was no more money and to just leave. In response, appellant told him and Watson to walk outside in order for Miller to unlock the gate of the impound lot. Finally, Miller testified appellant forced them outside at gunpoint and he unlocked the gate. Prior to leaving, appellant told the men to return to the office, get on the floor, and not call the police. The men returned to the office as appellant instructed.
The evidence showed that after appellant left Aristocrat Towing, Miller called the police and gave the necessary information to the police. Approximately ten minutes later, Sergeant Daniel Fiore saw the car. Fiore followed the car and activated his emergency lights, but the driver did not stop. Detective Conklin heard the dispatch and drove behind Fiore. At trial, Conklin testified he saw only one individual in the car. Fiore testified the driver stopped when he reached a dead-end street in a residential neighborhood. Fiore testified he saw only one person in the car and he only briefly lost sight of the car during the pursuit. Moreover, Fiore testified he saw one man jump from the car and run into the woods. Additionally, Fiore testified he could not identify the driver's face, but he could identify the driver's clothes.
Officer Jay Keatley with a K-9 unit assisted in the search, and the officers found appellant hiding in a child's playhouse approximately two hours later. The playhouse was in the backyard of a house near the abandoned car. In this regard, Fiore testified that the man in the playhouse was wearing the same jacket as the driver of the car.
Upon arrest of the appellant, the officers did not find a firearm in appellant's possession or in the car, but the officers did find a firearm on the other side of a privacy fence of the backyard where appellant was found hiding. Conklin testified the firearm was within a foot of the fence line. Miller identified the firearm found near the fence as the one appellant possessed.
In the car, the officers found an open beer bottle with appellant's fingerprints on the bottle. A DMV transcript showed that appellant's driving privilege was suspended at the time of the incident. The dash video from Fiore's vehicle showing the pursuit was admitted into evidence.
Appellant denied being at Aristocrat Towing, denied robbing Miller and Watson, and denied being the driver of the car. Appellant testified he was with his cousin, Eugene Hayes, and an acquaintance by the name of Troy, at a nightclub. Appellant testified that the three of them left the nightclub with Troy driving. Appellant testified he was in the passenger seat drinking a beer and fell asleep. Appellant further testified that when he woke up, he heard Troy yelling profanities and saw a police vehicle chasing them. He stated that he jumped out of the car when Troy made a turn. Moreover, appellant testified he later saw Troy running in the area and that Troy could have discarded the firearm behind the fence. Appellant testified he ran through various backyards, jumped fences, and went inside the playhouse because he was very tired. Finally, appellant testified he woke up because a dog was biting him. Appellant explained it was difficult to put his hands up because of the dog. Appellant explained that the dash video showed Troy driving the car.
Appellant explained that his DNA was transferred to the firearm because he was very sweaty when Troy and Eugene helped him into the car and that Troy transferred appellant's DNA to the firearm when Troy later touched the firearm. Appellant admitted he was a convicted felon.
The jury heard the testimony of the witnesses and observed their demeanor. At the conclusion of the evidence, the jury evaluated the conflicts in the testimony and necessarily determined that the testimony by the Commonwealth's witnesses was more credible than appellant's testimony. It was for the fact finder to determine whether appellant's testimony was self-serving testimony given in an attempt to conceal his guilt. There was sufficient evidence supporting the jury's verdict. The Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of two counts of abduction, one count each of attempted ...

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