United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser, Senior United States District Judge
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
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.
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.
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. 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.
later, on March 23, Harvey fired the gun again inside
Cash's apartment. Police arrived, and Harvey surrendered
after a brief standoff. 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.
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.
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.
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.
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
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.
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.
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.
jury convicted Harvey on all counts.
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.
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.
moves to dismiss Harvey's habeas claims as without merit,