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Brantley v. Director, Va. Department of Corrections

United States District Court, E.D. Virginia, Alexandria Division

September 12, 2017

Harry Brantley, Petitioner,
v.
Director, Va. Department of Corrections, Respondent.

          MEMORANDUM OPINION

          GERALD BRUCE LEE UNITED STATES DISTRICT JUDGE

         This Matter comes before the Court on respondent's Motion to Dismiss a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 filed by Harry Brantley, a Virginia inmate proceeding pro se. Brantley challenges the constitutionality of convictions entered in the Circuit Court of Prince George County.[1]

         I. Background

         On December 5, 2013, petitioner was convicted following a jury trial of two counts of attempted robbery, two counts of use of a firearm in the commission of a robbery, malicious wounding, and use of a firearm in the commission of a malicious wounding. Case No. CR13- 0017-00 through -05. He received consecutive sentences for the various offenses that totaled an active term of forty-two (42) years incarceration. Sentencing 12/5/2013, T. 13. The charges stemmed from the following incident:

The victims, who are married, own a restaurant. Linda Purdie, one of the victims, testified that on Friday nights after they close the restaurant, she and her husband routinely take the money from the restaurant to their home in a briefcase. Linda Purdie stated her husband always places the briefcase on the rear seat of their vehicle behind the driver's seat. One Friday evening, they closed the restaurant, left work together, and drove into the garage of their home. Linda Purdie exited the vehicle and was near the rear passenger door when she saw a person standing in front of her with a bag over his head. The person was later identified as appellant. Linda Purdie stated appellant had a gun in one hand and a pink bag over his shoulder. She walked toward appellant, and he said, * Don't move.' Linda Purdie continued to walk toward appellant, and she grabbed his arm. Appellant pushed her to the ground, and she yelled for her husband. Linda Purdie then heard a gunshot and a second gunshot. Her husband, Kenny Purdie, and appellant had exchanged gunfire and both men were shot. Appellant fled the scene, but he left the pink bag in the garage.
Kenny Purdie testified he drove into the garage and opened the back door of his truck. He thought he saw 'something behind' his truck. He then heard his wife exclaim, 'He's got a gun.' Kenny Purdie retrieved his gun from the truck. Kenny Purdie stated that appellant was standing by the middle of the tail gate of the truck and that appellant shot him in the shoulder. Kenny Purdie then shot at appellant, who flinched and fled.
Jasmine Reid testified that she lived with appellant at the time of the incident and that their residence was 'around the corner' from the shopping center where the restaurant owned by the victims was located. On the evening of the incident, she saw appellant at a child's party, but he left the party before it ended at 8:00 or 9:00 p.m. Reid testified that she next saw appellant at about 11:20 p.m. and that he had been shot in the shoulder. Reid stated appellant also told her he had shot someone. Reid and appellant cleaned the wound, and appellant took a shower. Reid testified that while appellant was in the shower he was talking to himself and that he twice said he 'should have taken the money.' In addition, Reid identified the pink bag that appellant left at the scene as belonging to her.
Detective Reed testified the recovered pink bag contained, among other things, two rolls of duct tape and a set of keys that appeared to go with toy handcuffs.

Brantlev v. Commonwealth. R. No. 2381-13-2 (Va. Ct. App. Aug. 25, 2014), slip op. at 2-3.[2]

         Petitioner appealed the convictions of attempted robbery and related firearms offenses to the Court of Appeals of Virginia, arguing that the evidence was insufficient to sustain those convictions. The appeal was denied on August 25, 2014. Brantley v. Commonwealth, supra. On April 16, 2015, the Supreme Court of Virginia refused a petition for further appeal. Brantley v. Commonwealth. R. No. 141339 (Va. Apr. 16, 2015).

         On January 16, 2015, petitioner filed a pro se petition for a state writ of habeas corpus in the Circuit Court of Prince George County. The petition challenged only the convictions for malicious wounding and related firearms offenses on the following grounds:

         A. Counsel was ineffective for failing to object to the admission of contaminated evidence.

         B. Counsel was ineffective for failing to object to the admission of expert reports where an expert was not present, and for failing to subpoena an expert to challenge the admission of forensic reports.

         C. The Commonwealth engaged in prosecutorial misconduct by making improper closing arguments.

         D. Counsel was ineffective for failing to subpoena an expert witness and to present a defense to contradict the Commonwealth's theory.

         E. Counsel was ineffective for failing to argue on appeal that the Commonwealth's closing argument was improper.

         F. Counsel was ineffective for failing to argue on appeal that the Commonwealth's failure to disclose impeachment evidence prior to trial was improper.

         G. Counsel was ineffective for failing to "include jury instructions elements of a mistrial." H. Counsel was ineffective for informing petitioner he was not appealing certain issues.

         I. The trial court abused its discretion by finding that the Commonwealth was not required to disclose impeachment evidence it intended to use at trial in the form of recording of the petitioner on the jail phone.

         J. The Commonwealth engaged in prosecutorial misconduct by failing to disclose impeachment evidence prior to trial.

         K. The Commonwealth engaged in prosecutorial misconduct by introducing a "forensic analysis report that wasn't proven beyond a reasonable doubt." L. The trial court abused its discretion by failing to perform an in camera review of the jail phone recordings.

         M. Counsel was ineffective for failing to argue on appeal that the trial court abused its discretion by failing to perform an in camera review of the jail phone recordings.

         N. Counsel was ineffective for failing to move the court to review the jail phone recordings in camera and for failing to request a continuance.[3]

         The court granted respondent's Motion to Dismiss the petition in a letter opinion on September 15, 2015, and a Final Order was entered on October 8, 2015. Case No. CL-230 at 164-68, 189-90. Petitioner appealed that result to the Supreme Court of Virginia which refused the appeal on June 16, 2016. Brantley v. Dir.. Dep't of Corr.. R. No. 160054 (Va. June 16, 2016).

         Meanwhile, Brantley filed a separate petition for a writ of habeas corpus as to his attempted robbery and related firearms convictions in the Supreme Court of ...


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