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Fitzgerald v. Clarke

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

December 8, 2017

RAYMOND FITZGERALD, #1186026 Petitioner,
HAROLD W. CLARKE, Director Virginia Department of Corrections, Respondent.



         This 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 Virginia law.


         On July 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).

         Fitzgerald 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).

         Over 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.

         On May 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.

         On June 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.

         Thus, 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.


         A. Unless he can demonstrate actual innocence, Fitzgerald's claims are time-barred and procedurally defaulted.

         Habeas 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).

         Of the 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.

         But the 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 ...

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