United States District Court, E.D. Virginia, Norfolk Division
MAGISTRATE JUDGED REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE
matter was initiated by petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, and referred to the
undersigned pursuant to the provisions of 28 U.S.C.
§§ 636(b)(1)(B) and (C) and Rule 72(b) of the
Federal Rules of Civil Procedure. Because the petition
contains both exhausted and unexhausted habeas claims, the
undersigned recommends it be dismissed without prejudice to
permit Fitzgerald to present his claims as required by
STATEMENT OF THE CASE
12, 2011, in the Circuit Court for the City of Richmond, a
judge convicted petitioner Raymond Fitzgerald
("Petitioner" or "Fitzgerald") of
malicious wounding and use of a firearm in the commission of
a felony. The court sentenced him to a total of twenty-eight
years of imprisonment with sixteen years suspended, for a
total period of twelve years active incarceration. Sentencing
Order, No. CR10-F-7201; CR10-F-7202; and CR10-F-7189;
Resp't Ex. A (ECF No. 12-1).
appealed his conviction to the Virginia Court of Appeals
arguing that there was insufficient evidence to convict him.
The Court of Appeals denied his appeal in a per
curium opinion on July 13, 2012, and the Supreme Court
of Virginia refused his appeal on March 27, 2013. Record No.
1288-11-2, Resp't Ex. B (ECF No. 12-2); Record No.
121821, Resp't Ex. C (ECF No. 12-3).
three years later, Fitzgerald filed a writ of habeas corpus
with the Supreme Court of Virginia on June 15, 2016, alleging
three sets of claims all related to an affidavit from a
police informant, Marquis Lewis, allegedly delivered to
Fitzgerald in February 2016. The affidavit states that Lewis
-who did not testify at trial - lied to police when he
implicated Fitzgerald during the investigation.
Fitzgerald's first state habeas claim, enumerated as
Claim A, asserted that the Lewis Affidavit established that
Fitzgerald was actually innocent of the shooting. Claim B
alleged that the Lewis Affidavit established the arresting
officer improperly coerced Lewis into implicating Fitzgerald
in the shooting and thus, Fitzgerald's confession after
arrest should have been suppressed. Finally, in Claims C(1)
through C(4) Fitzgerald argued that the Lewis Affidavit
undermined other evidence against him and thus established
that the prosecutor knowingly used perjured testimony of
other witnesses who did testify.
2, 2017, the Supreme Court of Virginia dismissed the
petition, largely on the basis that the claims alleged were
untimely under Virginia Code § 8.01-654(A)(2).
Fitzgerald v. Manis, No. 160950 (Va. May 2, 2017),
Resp't Ex. E (ECF No. 12-5). The Court also addressed the
merits of Fitzgerald's claims that the prosecutor
knowingly offered perjured testimony from the investigating
detective. The Court concluded that Fitzgerald had not made a
credible showing that the detective testified falsely even
accepting the affidavit as true, because the detective did
not testify regarding the details of his conversation with
Lewis, nor testify that Lewis implicated Fitzgerald in the
shooting. Resp't Ex. E (ECF No. 12-5 at 2). With respect
to Fitzgerald's claim of actual innocence, the Supreme
Court noted that "assertions of actual innocence are
governed by Code §§ 19.2-327.1 through 327.6 and
Code §§ 19.2-327.10 through 327.14 and are outside
the scope of habeas review ." Id. at 1. As a
result, the Supreme Court did not consider the merits of any
freestanding claim of actual innocence.
6, 2017, Fitzgerald, proceeding pro se, filed this
federal petition for habeas corpus relief pursuant to 28
U.S.C. § 2254. Fitzgerald's federal petition raises
claims similar to those presented in his state habeas filing
and on direct appeal. Claim 1 is a challenge to the
sufficiency of the evidence; Claims 2-4 all relate to the
Lewis Affidavit. Claim 2 mirrors State Claim A and asserts
that the Lewis Affidavit demonstrates Fitzgerald is actually
innocent. Claims 3 and 4 correspond to State Claims CI and C2
and C3 respectively. Claim 3 argues that the Lewis Affidavit
establishes the detective fabricated probable cause to arrest
and detain Fitzgerald and thus his confession should be
excluded. Claim 4 asserts the prosecutor relied on knowingly
perjured testimony from two trial witnesses.
Fitzgerald again claims he is actually innocent and asserts
in his federal petition that Lewis' affidavit purporting
to recant prior statements to police proves his innocence. He
also alleges misconduct by the investigators based on their
reliance on Lewis' original, allegedly coerced testimony.
The Respondent filed his Rule 5 Answer and Motion to Dismiss,
along with a brief in support. Fitzgerald responded to the
motion, which is ripe to resolve.
RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF
Unless he can demonstrate actual innocence, Fitzgerald's
claims are time-barred and procedurally defaulted.
petitions filed pursuant to 28 U.S.C. § 2254 challenge a
state's custody over a petitioner on the grounds that
such custody violates the "Constitution or laws or
treaties of the United States." 28 U.S.C. §
2254(a). Before applying for federal habeas relief, however,
a petitioner must first exhaust the remedies available in
state court or demonstrate the absence or ineffectiveness of
such remedies. 28 U.S.C. § 2254(b)(1). Therefore, before
a state prisoner can apply for federal habeas relief, he must
first give the state court an opportunity to consider alleged
constitutional errors occurring in a state prisoner's
trial and sentencing. Breard v. Pruett, 134 F.3d
615, 619 (4th Cir. 1998) . "To satisfy the exhaustion
requirement, a habeas petitioner must fairly present his
claim to the state's highest court." Matthews v.
Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see also
Picard v. Connor, 404 U.S. 270, 275-76 (1971).
various claims in Fitzgerald's federal habeas petition,
only one is clearly exhausted. Fitzgerald presented a claim
that his conviction was based on insufficient evidence in his
direct appeal. His appeal was denied by the Court of Appeals
and refused by the Supreme Court of Virginia. As a result,
Claim 1 in Fitzgerald's federal petition is exhausted.
habeas claim alleging insufficient evidence in this court is
also time-barred. The Antiterrorism and Effective Death
Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(1996), codified a statute of limitations for habeas corpus
petitions. 28 U.S.C. § 2244 (d)(1); see Brown v.
Angelone, 150 F.3d 370, 375 (4th Cir. 1998) . The AEDPA
provides that any person in ...