United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young United States Magistrate Judge.
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 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.
PERTINENT PROCEDURAL HISTORY
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.
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
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
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 ...