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Belmar v. Clarke

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

March 30, 2018

LESTER R. BELMAR, JR., Petitioner,
HAROLD W. CLARKE, Respondent.


          Robert E. Payne Senior United States District Judge

         Lester 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. (Id.)

         In his § 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 granted.

         The 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 default.

         I. Belmar's Default Of His Claim Is Excused Because The Requirements Of Martinez v. Ryan Are Satisfied

         By 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.)

         Further, 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. 2013)).

(Id. at 14-15) (emphasis added).

         On 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.

         II. Summary Of The Events Surrounding The Charges

         On May 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.

         That 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 the night.

         Shortly 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.

         As he 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.

         There 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.)

         After 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.

         In any 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.

         Meanwhile, 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.

         After 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 leave.

         Shortly 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 had left.

         Belmar 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.

         Almost 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.

         Although 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.

         Belmar 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.)

         One of Belmar's shots struck Spencer in the head.[1] 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.

         Travis 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 seat.[2]

         In 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 years.

         III. Analysis

         To 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 ...

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