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Harvey v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

April 13, 2017

HAROLD W. CLARKE, Respondent.


          Hon. Jackson L. Kiser, Senior United States District Judge

         Orlando Harvey, a Virginia inmate proceeding pro se, timely filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of Harvey's confinement on a judgment in the Circuit Court of the City of Lynchburg for aggravated malicious wounding, malicious wounding, two counts of use of a firearm in commission of a felony, and participation in a criminal street gang. Respondent filed a motion to dismiss, and Harvey responded, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss and dismiss the petition.


         On March 20, 2011, around 11 P.M., teenaged cousins Marc Washington and Jahvonte Gilbert were jogging back to Gilbert's home from a house on Cherry Street in Lynchburg. Washington's mother had called and told Washington that she was on her way to Gilbert's house to pick him up. An unknown individual, standing thirty to forty feet away, shot at the two boys several times. Now wounded, Washington and Gilbert made their way back to the house on Cherry Street. Neither Washington nor Gilbert knew Harvey, and Harvey did not know the boys.

         A single bullet struck Washington in the left hand, but Gilbert was hit twice. One bullet grazed three of Gilbert's toes and the second passed through his right foot. Gilbert required stitches on his right foot, as well as surgery that implanted pins in two toes on his left foot. The injuries confined Gilbert to a hospital for two weeks and required use of a wheel chair and crutches for a time. He missed two months of school, and he testified that he could no longer bend his left toes that had pins in them, and that he experienced pain in his toes with some frequency. Additionally, Gilbert testified that he faced continuing occasional problems with balance and mobility, and he could not jump as high as he could prior to the shooting.

         Around the same time as the shooting, Adrianne Chapman was driving Katisha Cash, Harvey's girlfriend at the time. Harvey called Cash for a ride. When they went to pick Harvey up, he appeared from the shadows breathing heavily and sweating, and told the women: "Drive, get out of here, just go." Trial Tr., 129-30, May 21, 2012. During the car ride, Harvey stated, "I think I killed him, " referring to the people that Harvey had just shot at, thinking they were Tooley Boys.[1] IcL at 133-34, 140. Chapman also testified that Harvey specifically stated that he shot at two individuals that were running behind him. Id. at 134. Back at Chapman's house, Harvey wiped off a gun and laid it on a nightstand. Chapman testified that the gun that she saw that night was the same gun that Harvey was later arrested with. Lastly, Harvey told Chapman: "[D]on't forget that I know where you and your son sleep now." IcL at 139. Chapman told the court that she interpreted Harvey's statement as a threat to dissuade her from speaking to the police.

         Days later, on March 23, Harvey fired the gun again inside Cash's apartment. Police arrived, and Harvey surrendered after a brief standoff.[2] Officers recovered the pistol, which matched casings recovered from the cousins' shooting and a bullet extracted from Gilbert's foot, a red do-rag with Harvey's identification in it, as well as a black jacket emblazoned with red "Halloween faces." Harvey admitted that the jacket was his, and testimony established that it was Nine Trey Bloods clothing. Additionally, Harvey's jacket contained ammunition that matched the earlier Gilbert-Washington shooting.

         Lt. Daniel Black questioned Harvey regarding the Washington-Gilbert shooting, but Harvey denied involvement. However, Harvey did admit that there had been "some things going on with the Tooley Boys." Id. at 218. At trial, Det. Kevin Poindexter, a Lynchburg police gang expert, testified that a member of the Tooley Boys had killed a Nine Trey Bloods member in 2011. Det. Poindexter also testified that in the years prior to the Washington-Gilbert shooting, the Nine Trey Bloods had had several violent confrontations with rival gangs, including the Tooley Boys. Shandre Saunders, a Nine Trey Bloods member, was convicted of several crimes after shooting a cab driver caught in the middle of a dispute between the Tooley Boys and Bloods; also, Rodney Johnson, another Nine Trey Bloods member, was convicted of aggravated malicious wounding and use of a firearm for shooting a rival gang member in 2010.

         Derrick Campbell, Harvey's childhood friend, testified that Harvey admitted to shooting the cousins as retaliation for the Tooley Boys' murder of one of Harvey's friends and fellow Bloods member, Brian Patterson. Also, Campbell stated that Harvey had concocted a false defense, that he would try to prove that he acted in self-defense by "[s]aying that the guys ran out at him with guns drawn and he was protecting his self." Id. at 238.

         At trial, Sicily Sandidge, the mother of Harvey's son, testified that on the night of March 20, 2011, Harvey had visited their son at her house, three blocks away from where the shooting occurred. Harvey's uncle testified that Harvey sometimes stayed at his house, a ten minute walk from the shooting. However, Harvey's uncle did not recall anything unusual about March 20, and he did not think that Harvey had stayed with him that night.

         During his testimony, Harvey acknowledged that he had been a Bloods member for several years, but stated that his murdered friend, Brian Patterson, had not been a Blood. He also testified that he had visited his son on the night of March 20, 2011, and he had begun walking to his uncle's house when four or five individuals, including Gilbert and Washington, approached him to ask what he was doing there. Harvey claimed self-defense at trial, testifying that one member of the group was armed. He stated that he did not know the individuals or if they were gang-affiliated. Because Harvey was in rival gang territory, though, he testified that he feared for his life and reacted to the confrontation by running and firing his gun in the direction of Gilbert and Washington's group. Further, he testified that he shot the victims from across the street, approximately thirty-five feet away. Harvey stated that he carried a gun for his own protection because "a lot of things [were] going on in the streets." Id. at 321. However, Harvey denied shooting the cousins in retaliation for Patterson's death.

         Additionally, Harvey admitted that he: called Cash for a ride after the shooting, went to Chapman's apartment, stashed the pistol he had used in the Washington-Gilbert shooting in Cash's attic, and that he lied to Lt. Black and other officers about his involvement in the shooting. He acknowledged that he knew that the area where the shooting occurred was Tooley Boys territory, and that he knew Campbell because they had been childhood friends, but that they had had altercations while incarcerated together. He also testified to taking a loaded gun to visit his son, owning the gun and jacket recovered by police, and preferring to wear red to show his Bloods colors.

         Additionally, Harvey attempted to call Kshawn Kelly to testify that Gilbert told Kelly that several people, including Gilbert and Washington, had run up on Harvey, and one member of the group had a gun. The Commonwealth objected because defense counsel never laid a foundation with Gilbert to introduce the impeachment evidence, and also because the testimony was hearsay not subject to an exception. Kelly ended up only testifying that he knew Gilbert through basketball, even though Gilbert had earlier denied knowing Kelly.

         Lastly, Lt. Ann Riley of the Lynchburg Police Department testified that she responded to the Cherry Street house on the night of the shooting and noticed a .22-caliber rifle inside the home.

         The jury convicted Harvey on all counts.

         Harvey appealed his convictions to the Virginia Court of Appeals, stating that (1) the evidence was insufficient regarding his aggravated malicious wounding charge, and (2) that the trial court erred in granting an instruction regarding the inference of malice from the deliberate use of a deadly weapon. The Court of Appeals denied his petition twice. He then appealed to the Virginia Supreme Court, but the court refused his appeal. On January 23, 2015, Harvey filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. He stated four claims of ineffective assistance of counsel. The Virginia Supreme Court denied Harvey's petition, and affirmed the denial on rehearing.

         On March 10, 2016, Harvey filed the instant federal habeas petition, with the same four ineffective assistance claims as in his state petition. Harvey's petition states that trial counsel was ineffective for:

(1) failing to challenge or object to the sufficiency of evidence used to convict Harvey of criminal street gang participation pursuant to Va. Code § 18.2-46.2(A);
(2) failing to lay a proper foundation for a supporting self-defense/alibi witness, whose testimony would have exonerated him of his aggravated malicious wounding charge;
(3) failing to consult and/or obtain the assistance of an independent expert to adequately challenge and prove that the alleged victim's injuries pursuant to Va. Code § 18.2-51.2(A) were not permanent and significant; and.
(4) failing to inform and disclose to Harvey relevant prosecution evidence which would have afforded him a fair and adequate opportunity to intelligently decide to accept a favorable plea deal offered by the Commonwealth.

         Respondent moves to dismiss Harvey's habeas claims as without merit, and ...

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