United States District Court, W.D. Virginia, Roanoke Division
K. MOON, UNITED STATES DISTRICT JUDGE.
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
Danville City Circuit Court made the following factual
findings in addressing Fitzgerald's state habeas
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
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
Fitzgerald v. Clarke, No. CL15-277, slip op. at 2-5
(Va. Cir. Ct. Aug. 6, 2015) (footnote omitted).
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
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.
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 ...