United States District Court, E.D. Virginia, Richmond Division
LESTER R. BELMAR, JR., Petitioner,
HAROLD W. CLARKE, Respondent.
E. Payne Senior United States District Judge
R. Belmar, a Virginia state prisoner proceeding with counsel,
brings this petition pursuant to 28 U.S.C. § 2254
("§ 2254 Petition, " ECF No. 1). Following a
bench trial in the Circuit Court for the City of Virginia
Beach ("Circuit Court"), Belmar was convicted of
second-degree murder, malicious wounding, and two firearm
charges. (Id. ¶ 3.) The Circuit Court sentenced
Belmar to a term of fifteen years of imprisonment.
§ 2254 Petition, Belmar, alleging ineffective assistance
of counsel, asserts relief on the following ground:
A plea offer was made to the Petitioner's trial attorney,
Mr. Bullock [, ] by the Commonwealth's Attorney, and the
offer was never communicated to the Petitioner. The plea
offer was extremely favorable, and if it had been
communicated to the Petitioner and adequately discussed, the
Petitioner would have accepted the plea offer.
(Id. ¶ 32.) For the reasons set forth below,
the Court finds that Belmar has satisfied his burden and has
shown that his counsel was ineffective; and that Belmar would
have accepted the proffered plea. Accordingly, Belmar's
§ 2254 Petition with respect to the above claim will be
Court has issued two previous opinions respecting this
Petition. This Memorandum Opinion will not recount the
procedural issues covered extensively in those opinions.
Nevertheless, before addressing the merits of Belmar's
claim, it is necessary to resolve the issue of procedural
Belmar's Default Of His Claim Is Excused Because The
Requirements Of Martinez v. Ryan Are
Memorandum Order entered on October 24, 2017, the Court held
that Belmar had pled a new claim of ineffective assistance of
counsel that had been procedurally defaulted. (ECF No. 14, at
7-8.) As previously explained:
In Co1eman v. Thompson, 501 U.S. 722 (1991), the
Supreme Court "held that attorney error committed in the
course of state postconviction proceedings-for which the
Constitution does not guarantee the right to counsel-cannot
supply cause to excuse a procedural default that occurs in
those proceedings." Davila v. Davis, 137 S.Ct.
2058, 2065 (2017) (internal citation omitted) (citing
Coleman, 501 U.S. at 755) . In Martinez v.
Ryan, 566 U.S. 1 (2012), the Supreme Court announced an
"'equitable . . . qualification' of the rule in
Coleman that applies where state law requires
prisoners to raise claims of ineffective assistance of trial
counsel in an initial-review collateral proceeding, '
rather than on direct appeal." Davila, 137 S.Ct. at 2065
(quoting Martinez, 566 U.S. at 16, 17).
Specifically, the Court held that in such situations,
"'a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if the default results from
the ineffective assistance of the prisoner's counsel in
the collateral proceeding." Id. (quoting
Martinez, 566 U.S. at 17).
(Id. at 8-9.)
the Court also found that:
Belmar has made a sufficient preliminary showing that
state habeas counsel performed deficiently by failing to
plead in a proper manner Belmar's ineffective assistance
of trial counsel claim. Furthermore, for much the same
reasons discussed above with respect [to] the first
Martinez element, Belmar has made a sufficient
preliminary showing that he was prejudiced by habeas
counsel's actions. See Juniper, 117 F.Supp.3d at
790. At this juncture, material facts remain in dispute
regarding the performance of trial counsel and whether Belmar
can demonstrate prejudice from any omissions of trial or
habeas counsel. Id. (observing that "the
Martinez exception to the procedural-default bar
includes within it consideration of the merits of the
procedurally defaulted claim"). Under such
circumstances, Belmar "should be afforded an evidentiary
hearing to develop a proper factual record." Hill v.
Glebe, 654 Fed.Appx. 294, 295 (9th Cir. 2016) (citing
Detrich v. Ryan, 740 F.3d 1237, 1246-48 (9th Cir.
(Id. at 14-15) (emphasis added).
March 19, 2018, the Court conducted an evidentiary hearing on
Belmar's ineffective assistance of counsel claim. At the
hearing, the record demonstrated, and Respondent conceded,
that state habeas counsel performed deficiently by failing
adequately to plead Belmar's claim of ineffective
assistance of trial counsel. Furthermore, for the reasons
discussed more fully below in Section III.C, Belmar has
demonstrated, by clear and convincing evidence, that he was
prejudiced by the omission. Accordingly, it is appropriate to
address the merits of Belmar's claim.
Summary Of The Events Surrounding The Charges
21, 2011, Belmar operated a private security business in
Virginia Beach. At that time, Belmar was roughly 28 years old
and had been discharged from the Navy for a disability after
8 and 1\2 years of service. On the evening of May 21, 2011,
Belmar's business was providing security for Hangar 9, a
nightclub in Virginia Beach ("the Club"). There
were approximately 14 of Belmar's employees on security
duty at the Club that evening.
night, there were between 200 and 3 00 young people at the
Club. At some point, a number of skirmishes occurred between
the patrons. Because of the number of altercations, it was
agreed at around 1:00 a.m. that the Club should be closed for
thereafter, one of Belmar's employees informed Belmar
that he had heard some patrons state that "there was
going to be firing -- pull out guns and shoot at this MF-er
and all this." (Oct. 4, 2012 Tr. 135.) At that point,
Belmar went to his car to secure his duty belt with his gun.
was putting on his duty belt, Belmar got a call over his
radio advising that an altercation was about to take place.
Belmar then ran to the area of the parking lot where 15 to 20
young men were yelling at each other. Belmar told them that
the police were on the way and that, if they did not leave,
he would be forced to deploy pepper spray. At that point, the
majority of the young men left the Club's parking lot.
was a 7-Eleven store across the street from the Club. When a
disturbance causes the Club to close, people from the Club
often end up at the 7-Eleven store. The police had instructed
Belmar and the Club's security personnel that, if there
is an altercation at the Club, "to at least . . . let
the [7-Eleven] cashier know because it's a lady and she
works by herself at nighttime . . . ." (Oct. 2, 2012 Tr.
104; Oct. 4, 2012 Tr. 141.)
breaking up the altercations in the Club's parking lot,
Belmar and some of his security personnel, as instructed,
went to the 7-Eleven store to advise the clerk of the
situation. After being warned by the Club's personnel of
possible impending trouble, the cashier locked the doors and
called the police. Soon, there were twenty to thirty cars and
60 to 80 people at the 7-Eleven store. One witness estimated
there were 120 to 150 people there.
event, by the time that Belmar arrived at the 7-Eleven store,
the scene was chaotic and a number of fights had broken out.
According to Larry Johnson, a member of the Club's
security staff, about fifteen men were fist fighting, one man
had been knocked out completely, and other men were
attempting to stomp him as he lay unconscious.
the cashier was attempting to let customers out of the locked
7-Eleven store, and a number of men were trying to force
their way into the store, notwithstanding that they had been
informed that the store was closed. Belmar backed up the
cashier and informed the people attempting to get into the
store that they needed to leave. Thereafter, Belmar deployed
pepper spray to diffuse another altercation that was
occurring in front of the store.
deploying the pepper spray, Belmar heard yelling behind him
in the parking lot. Belmar observed Bolton, one of
Belmar's employees, near the gas pumps, holding a man who
was wearing a red jacket. Belmar observed another man laid
out on the ground next to Bolton. In an effort to defuse the
volatile situation, Belmar joined Bolton by the pumps and
persuaded the men who had assaulted the man on the ground to
thereafter, a black Impala, occupied by three different men
(including Darrell Spencer and Travis Baker), pulled up near
Belmar. One of the occupants of the Impala informed Belmar
that the man who had been knocked out and who was lying on
the ground was his cousin, and he asked Belmar for permission
to help his fallen cousin. Belmar agreed to let them load the
fallen man into their car and leave. The men in the car were
upset and wanted to know who had hurt the cousin. Belmar
advised the men in Impala that the responsible individuals
then turned to walk toward the door of the 7-Eleven store.
While en route, Belmar heard six to eight rapid shots fired
from the direction of nearby Lynnhaven Parkway. Some of the
shots ricocheted off of the gas pump canopy above
Belmar's head. So, Belmar turned around and drew his
firearm. Belmar held his firearm at a forty-five degree angle
toward the ground as he attempted to determine the source of
the shots and what had precipitated the firing of the weapon.
immediately, Belmar observed a man, later identified as
Darrell Spencer, getting out of the back seat of the black
Impala which was then about fifty feet away from Belmar.
Spencer had what appeared to be a rifle in his hands. In
fact, Spencer's weapon was a shotgun. Belmar observed
Spencer leaning over the top of the car (with his back toward
Belmar) and pointing the shotgun in the direction of several
of Belmar's employees. Belmar then aimed his gun at
Spencer and yelled, "Hands, hands. Show me your
hands." (Oct. 4, 2012 Tr. 165.) When Spencer did not
obey, Belmar fired two shots at Spencer.
Belmar did not see Spencer fire his weapon, it is undisputed
that, in fact, Spencer previously had fired the shotgun at a
nearby car, striking the car and its driver. Belmar testified
that two to three seconds passed between the time he heard
those shots fired and when he shot Spencer.
aimed at the center of Spencer's back. Just before Belmar
fired, Spencer "had one foot out [of] the vehicle, one
foot on the floorboard, and he was standing with the rifle
[the shotgun] straight up." (Oct. 4, 2012 Tr. 166.)
Belmar's shots struck Spencer in the head. The gunshot wound
had an "entrance at the right lower occipital scalp and
an exit at the left frontal scalp." (Oct. 2, 2012 Tr.
42.) Spencer was killed instantly. Spencer's body fell
halfway in the car and was slumped over the back of the front
passenger seat. After having been shot by Belmar, Spencer had
dropped the shotgun on the floorboard of the back seat on the
driver's side of the Impala. Aware that there was a
passenger in the back seat of the Impala, Bolton retrieved
the shotgun from the Impala.
Baker was seated in the driver's seat of the Impala.
Baker was shot in the right rear shoulder. According to the
prosecution's theory of the case, after the bullet exited
Spencer's head, it continued on to strike Baker in the
right rear shoulder. The Circuit Court apparently concluded
that the most plausible explanation for Spencer's and
Baker's wounds was: that Spencer was bending over to get
back into the Impala with the shotgun when Belmar shot
Spencer in the base of the skull; and that the bullet then
exited near the top of Spencer's head and continued
downward to strike Baker, who was seated in the driver's
light of these circumstances, the Circuit Court found Belmar
guilty of second-degree murder, malicious wounding, and two
counts of using a firearm in the commission of a felony and
sentenced him to an active term of imprisonment of fifteen
demonstrate ineffective assistance of counsel, a convicted
defendant must show first, that counsel's representation
was deficient and second, that the deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984) . To satisfy the deficient
performance prong of Strickland, the convicted
defendant must overcome the "'strong
presumption' that counsel's strategy and tactics fall
'within the wide range of reasonable professional
assistance.'" Burch v. Corcoran, 273 F.3d
577, 588 (4th Cir. 2001) (quoting Strickland, 466
U.S. at 689). The prejudice component requires a convicted
defendant to "show that there is a reasonable
probability that, but for counsel's unprofessional