United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
James Clark, a Virginia inmate proceeding pro se,
filed this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging the validity of his
confinement on a judgment by the Circuit Court of the City of
Waynesboro. Respondent filed a motion to dismiss Clark's
§ 2254 petition, and Clark responded, making the matter
ripe for disposition. After review of the record, the court
concludes that Clark's claim has no merit, requiring the
motion to dismiss to be granted.
was convicted of one count of burglary with a weapon, two
counts of aggravated malicious wounding, two counts of use of
a firearm while committing a felony, and one count of street
gang participation involving a juvenile. After Clark's
direct appeal and state habeas petition were unsuccessful, he
filed the present federal habeas petition pursuant to 28
U.S.C. § 2241. The district court initially denied
relief because Clark had failed to exhaust state remedies,
and the court also denied Clark's motion for
reconsideration. However, the Fourth Circuit Court of Appeals
remanded for further proceedings. The facts and procedural
history pertinent to Clark's habeas claim are as follows.
night of November 25, 2006, Clark went to April Turner's
apartment at 216 South Winchester Avenue, in Waynesboro. Five
people were inside the apartment: Turner, Turner's
five-year-old daughter, a juvenile named J.P.,
fourteen-year-old K.W., and eighteen-year-old James Gordon
O'Brien (also known as "O.B." or "Crab,
" the slang term for a Crips gang member). Clark and
fellow Bloods gang members S.W., Rashame Washington, and
Jordan Strickland approached the apartment with red bandanas
covering their faces. S.W. knocked on Turner's door, but
Turner refused to let them in, stating, "Do not come in.
Don't bring this to my house." H'rg Tr. vol. 2,
pushed Turner backwards and S.W., Washington, Strickland, and
Clark broke into the apartment. S.W. stood over Turner while
Washington, Strickland, and Clark proceeded to a bedroom
where they shot K.W. once in the leg, and also shot
O'Brien four or five times. The bullet that struck K.W.
lodged in her thigh and she had a significant scar.
O'Brien lost internal organs and had spinal cord damage,
with a bullet remaining lodged next to his spine. He also had
a colostomy and an ileostomy.
fled the scene, and was later arrested in Newport News on
December 1, 2006. Upon arrest, police found a .32-caliber
handgun in Clark's possession, and the bullets in that
handgun matched a shell found in Turner's parking lot.
Clark confessed that he shot at O'Brien, and stated that
he wished O'Brien had died.
2, 2007, Clark entered an Alford guilty
in the Circuit Court of the City of Waynesboro, and was
convicted of burglary with a weapon, two counts of aggravated
malicious wounding, two counts of use of a firearm in
commission of a felony, and street gang participation
involving a juvenile.
sentencing hearing, Clark testified that he had remained
outside during the shooting, and as S.W., Washington, and
Strickland ran from the scene, one of them had given him the
32-caliber weapon. He heard gunshots from the parking lot,
but did not know who had fired them. Also, Clark claimed that
he had fired the shell found at the scene a day prior to the
shootings. Clark claimed that his earlier confessions were
lies to protect the younger participants. The judge sentenced
Clark to an active term of forty-three years in
codefendants, Washington and Strickland, pleaded guilty and
were convicted of the same six offenses as Clark. Washington
and Strickland did not enter Alford pleas.
pursued direct appeals, arguing that the trial court erred in
not further reducing his sentence due to mitigation evidence
produced at sentencing. Clark claimed that the mitigation
evidence demonstrated that he was actually innocent or only
minimally involved in the crimes. The Court of Appeals of
Virginia affirmed his conviction, holding that "there is
substantial evidence against the defendant in this matter . .
. sufficient for a finding of guilt on all six charges,
" and that the sentence imposed was within the range
prescribed by law. Clark v. Commonwealth. 2008
Va.App. LEXIS 234, 2008 WL 2019561, at *1 n.4 (May 13, 2008).
The Supreme Court of Virginia refused review. Clark timely
filed a petition for a writ of habeas corpus in the Circuit
Court of the City of Waynesboro, raising five
claims. On Oct 7, 2009, the circuit court denied
habeas relief, and Clark did not pursue a habeas appeal to
the Supreme Court of Virginia.
January 31, 2014, Clark filed a petition for a writ of habeas
corpus in federal district court. His § 2254 petition
asserts a single Sixth Amendment claim: Trial counsel
rendered ineffective assistance by advising and allowing
Clark to enter into an Alford guilty plea when
counsel did not believe Clark was guilty of the crimes he was
advising him to plead guilty to, and which Clark did not
commit. In support of his petition, Clark submits a 2011
unexecuted affidavit and several letters from one of the
victims, O'Brien, a letter from a prisoner named
"Yella Boy, " and also a 2013 affidavit from
codefendant Washington. The materials state that Clark did
not shoot O'Brien, and that Clark was outside in the
street when the shooting occurred.
has not raised this claim in any Virginia court; thus, his
claim is procedurally barred by Coleman v. Thompson.
501 U.S. 722 (1991). Also, his claim is time-barred under Va.
Code § 8.01-654(A)(2) and 28 U.S.C. § 2244(d).
Clark argues that under Schlup v. Delo. 513 U.S. 298
(1995), and McQuiggin v. Perkins. 133 S.Ct. 1924
(2013), his actual innocence of die crimes excuses the
procedural default and time-bar under any statute of
limitations. The district court initially dismissed
Clark's federal habeas petition for failure to exhaust
state remedies. Clark v. Clarke. No. 7:14-cv-00042
(W.D. Va. Feb. 10, 2014) (ECF No. 3). Clark sought
reconsideration of the dismissal, which was denied. Clark
v. Clarke. No. 7:14-cv-00042 (W.D. Va. Apr. 10, 2014)
(ECF No. 7).
appealed to die Fourth Circuit Court of Appeals, and the
Court of Appeals reversed the dismissal and remanded to the
district court, directing the court to treat Clark's
claim as exhausted and defaulted under Sparrow v.
Director. Dep't of Corrections, 439 F.Supp.2d 584
(E.D. Va. 2006). The Court of Appeals held that the district
court should have determined (1) whether Clark's actual
innocence claim excuses the procedural default and
untimeliness of his § 2254 petition, and (2) if
Clark's actual innocence does excuse his doubly-defaulted
petition, whether the underlying ineffective assistance of
counsel claim has merit. Clark v. Clarke. No.
14-6615 (4th Cir. May 11, 2016) (ECF No. 13).
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
severely restricts federal habeas relief afforded to state
prisoners. "Generally, a federal court may not consider
claims that a petitioner failed to raise at the time and in
the manner required under state law." Teleguz v.
Zook. 806 F.3d 803, 807 (4th Cir. 2015) (citation
omitted). "[An] exception is made for cases in which a
compelling showing of actual innocence enables a federal
court to consider the merits of a petitioner's otherwise
defaulted claims." Id. For a petitioner to
claim actual innocence, "[new] evidence must establish
sufficient doubt about [a petitioner's] guilt to justify
the conclusion that his [incarceration] would be a
miscarriage of justice unless his conviction was the
product of a fair trial." Schlup, 513 U.S. at
316 (emphasis in original). Actual innocence "does not
by itself provide a basis for relief. Instead, [the
petitioner's] claim for relief depends critically on the
validity of his [procedurally defaulted claim]."
Schlup. 513 U.S. at 315 (citing Herrera v.
Collins. 506 U.S. 390, 403 (1993)).
corpus petitions that advance a substantial claim of actual
innocence are extremely rare." Id. at 322. To
state such a claim, the petitioner must satisfy a
"rigorous" burden by "supporting] his
allegations of constitutional error with new reliable
evidence- whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial." Id.
at 324. Further, "[h]aving been convicted . . .
[petitioner] no longer has the benefit of the presumption of
innocence. To the contrary, [petitioner] comes before the
habeas court with a strong-and in the vast majority of the
cases conclusive-presumption of guilt." Id. at
district court must examine all evidence and make a holistic
threshold determination about the petitioner's claim of
innocence separate from its inquiry into the fairness of his
trial. Teleguz v. Pearson. 689 F.3d 322, 330 (4th
Or. 2012). The district court may consider: the nature of
evidence, House v. Bell. 547 U.S. 518, 537 (2006),
the timing of submissions, McQuiggin. 133 S.Ct. at
1928, the credibility of witnesses, House, 547 U.S.
at 537, 552, and the probative force of the newly
supplemented record. House, 547 U.S. at 538;
Sharpe v. Bell. 593 F.3d 372, 381 (4th Or. 2010).
After performing this analysis, the district court must
determine whether "it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt." Schlup, 513 U.S. at 328.
addition, the reviewing court has significant latitude to
make credibility assessments in actual innocence cases.
See, e.g., United States v. Connolly. 504
F.3d 206, 213-14 (1st Cir. 2007) (The appellant
"place[d] most of his emphasis upon [a co-felon's]
jailhouse recantation . . . however, [the co-felon's]
testimony did not occur in a vacuum . . . much of his
testimony received substantial circumstantial
corroboration."); United States v.
Gonzalez-Gonzale2. 258 F.3d 16, 22 (1st Cir. 2001)
(holding evidence of perjury is weak when it depended on the
credibility of two convicted felons); see also McCray v.
Vasbinder, 499 F.3d 568, 574 (6th Cir. 2007) (A witness
identified the appellant as the murderer at trial, but stated
that he could not identify the perpetrator at a later
evidentiary hearing. "Reasonable jurors no doubt could
question the credibility of this about face from another
inmate and rationally could discount his testimony as nothing
more than an attempt to keep from being 'pegged as a
rat.'"). A district court may have greater
difficulty determining the credibility of evidence on a
"cold record, " but the Fourth Circuit Court of
Appeals has allowed the district court to conclude that the
evidence is inadequate or unreliable enough to dismiss the
petition without an evidentiary hearing. See
Teleguz, 689 F.3d at 331.