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Fitzgerald v. Clarke

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

September 1, 2017

HAROLD W. CLARKE, Respondent.



         Cyntez Jamar Fitzgerald, 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 Danville City Circuit Court for first-degree murder and robbery. Respondent filed a motion to dismiss Fitzgerald's § 2254 petition, and Fitzgerald failed to respond, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss.

         I. Factual Background

         The Danville City Circuit Court made the following factual findings in addressing Fitzgerald's state habeas petition:

In the early morning hours of November 12, 2009, [Fitzgerald] separately asked both Joshua Davis and Tyler Turner if they wanted to commit a robbery with him. [Fitzgerald], accompanied by Kaseem Ford, told Davis he was on his way to rob “Brickman” at [Fitzgerald]'s girlfriend's house and asked if Davis wanted to join him. Davis and Turner each declined.
Shortly before 2:30 a.m. that morning, James “June” Adams was playing cards at Cynthia Ross's house on Washington Street in Danville. Other people were present, including Ross's daughter, who was [Fitzgerald]'s girlfriend. Adams wore earrings, a gold chain, a watch, a ring, and a diamond bracelet. Adams received a phone call and left through the front door, saying he would be back; Ross shut the door behind him. As soon as Ross returned to her kitchen, she heard multiple gunshots. She immediately called 911 and, approximately a minute and a half into that call, there was a final gunshot. The initial shots woke her neighbor, who looked outside to see a body on the opposite side of the street; a few seconds later a car pulled up and someone exited the car and shot the body. A few moments later, Officer J.A. Pulley of the Danville Police Department responded and found Adams unresponsive, face down, and shot multiple times in the torso. Six feet away lay a Glock .45 caliber pistol.
Adams died of three gunshot wounds, to his chest, shoulder, and thigh. The shoulder wound entered through his back. A bullet recovered from his body matched multiple ten millimeter casings found at the crime scene, and all the ten millimeter casings were fired from the same gun. A .45 caliber casing recovered at the scene had been fired from the Glock. The personal effects recovered from Adams included earrings, but not his bracelet or ring.
At 3:30 or 4 a.m. that morning of November 12, 2009, [Fitzgerald] returned to Davis's home with Ford. [Fitzgerald] told Davis he “got” Brickman, but it “got funky” and “the ten knocked him out of his drawers.” [Fitzgerald] complained that it was not worth it because he got only a bracelet and ring but should have got the earrings. [Fitzgerald] also had a gun with him. Davis accompanied Ford and [Fitzgerald] to see Turner. [Fitzgerald] clarified, while speaking with Turner and Davis, that the Brickman was June. He told Turner, “Your boy gone. . . your boy June.” The next day, [Fitzgerald] and his girlfriend again approached Turner to ask whether the police had questioned him. Det. David Whitley of the Danville Police Department questioned [Fitzgerald] about the night of Adams's murder, and [Fitzgerald] made certain statements corroborating that he had visited Turner that night.
Curtis McCain, who was jailed with [Fitzgerald], testified that [Fitzgerald] said his charges involved what “was supposed to have been a robbery but, um, the . . . due didn't want to come off the dope so [Fitzgerald] shot him.” Later, McCain told [Fitzgerald], “[T]hat's fucked up what you did to June, ” and [Fitzgerald] replied, “[S]o what . . . bad things happen to good people.” A few days later, after [Fitzgerald] met with his attorney, he told McCain that his investigator said McCain was “ratting” on him and threatened McCain.
Crystal Johnson testified that she asked [Fitzgerald] about rumors that he robbed and killed Adams. [Fitzgerald] told her that he and his boys “went over there and things went wrong but he didn't kill nobody.” In his defense, [Fitzgerald] called Tony Mayo to claim that Davis asked Mayo for a pistol three times before Adams's murder and that, after the murder, Davis told Mayo he did not know anything and not to say anything. [Fitzgerald] attempted to call Demetric Venable, who invoked the Fifth Amendment. [Fitzgerald] then called his investigator, who claimed that Venable had told her that he was the getaway driver when Adams was murdered, with Chris Moore, [Fitzgerald], and Davis in the car. The investigator claimed Venable told her that Davis took the jewelry and shot Adams.
In its rebuttal case, the Commonwealth called a witness to impeach Mayo's credibility. It also called Venable to dispute the investigator's testimony and reiterate his grand jury testimony, which also contradicted the investigator's testimony.

Fitzgerald v. Clarke, No. CL15-277, slip op. at 2-5 (Va. Cir. Ct. Aug. 6, 2015) (footnote omitted).

         II. Procedural History

         The jury convicted Fitzgerald of first-degree murder and robbery, and the Danville City Circuit Court imposed the jury's sentence of life plus five years' imprisonment. Fitzgerald appealed, but the Virginia Court of Appeals and the Virginia Supreme Court denied his petitions. In 2015, Fitzgerald timely filed a habeas petition in the Danville City Circuit Court, raising two claims. After the respondent moved to dismiss, Fitzgerald filed a motion to amend, attempting to add three claims. The respondent objected to Fitzgerald's motion, but the circuit court denied Fitzgerald's habeas petition without mentioning or addressing the “new” claims from his motion to amend.

         Fitzgerald appealed, but he only asserted the two claims from his petition; he did not raise the three claims from his motion to amend; and he did not challenge the circuit court's failure to address his motion. The Virginia Supreme Court refused his appeal.

         III. Claims[1]

         In his current petition, Fitzgerald raises the same five claims as his circuit court habeas petition and motion to amend:

1. The trial court violated his Sixth Amendment right to due process by failing to remove a juror for cause after learning of private communications between a juror and a family member of the victim;
2. Trial counsel was ineffective for failing to call defense witness Sidney Creekmore;
3. The Commonwealth's Attorney violated his Fifth, Sixth, and Fourteenth Amendment rights by filing and presenting information to the Grand Jury with “multiplication of offenses” that obscures the specific charges and ...

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