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Fitz v. Warden, Nottoway Corr. Ctr.

United States District Court, W.D. Virginia, Roanoke Division

October 31, 2018

DELANO DONTAE FITZ, Petitioner,
v.
WARDEN, NOTTOWAY CORR. CTR., Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Senior United States District Judge

         Delano Dontae Fitz, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his convictions. Respondent filed a motion to dismiss, and Fitz responded, making the matter ripe for disposition. After review of the record, the court concludes that the petition must be dismissed.

         I. Background [1]

         The Court of Appeals of Virginia summarized the evidence of Fitz's convictions as follows:

On December 24, 2013, Traman Turner arrived at Edasha Williams' house to pick up his children. Williams, the mother of the children, was involved in a romantic relationship with Fitz at the time and Fitz was also at the residence. Williams explained that Fitz went outside while she was getting the children ready. She saw Fitz and Turner speaking to each other and heard Turner say: "when you come bring your big toys." Fitz then produced a gun and shot Turner. Fitz threatened Williams with the gun and shot Turner three more times in the back as Turner tried to escape. Fitz then fled the scene. Turner died as a result of the gunshot wounds. Williams indicated that Turner was not armed and that she did not hear him threaten Fitz or make any aggressive movements.
Two neighbors saw the shooting and testified that Fitz shot the victim at close range - first in the chest and then in the back. Another neighbor saw the two men outside and heard Fitz accuse Turner of having "disrespected" him. She also heard the victim make a statement about "big toys" and that there would be "70 rounds next time." She went inside and moments later she heard gunfire.
Dontray Haughton, Fitz's friend, testified that Fitz arrived at his residence and asked Haughton to retrieve his gun for him. Haughton explained that Fitz appeared shaken. Haughton retrieved the gun from a trashcan and returned it to Fitz. Fitz told Haughton that he shot the victim "for no reason."
Jamie Chacon testified that he visited his nephew, one of Williams' children, in December 2013. Fitz was at the residence, showed Chacon his gun, made gang signs, and stated his intention to kill Turner.
Stacy Taylor shared a jail cell with Fitz. Fitz admitted to Taylor that he killed Turner and offered Taylor drugs if Taylor would kill Williams and threaten one of the other witnesses. Several other men who had been jailed with Fitz testified Fitz admitted killing Turner, had previously stated his intention to kill Turner, and planned to have the witnesses against him killed or threatened.

Fitz v. Commonwealth. No. 0770-15-3, slip op. at 4-5 (Va. Ct. App. Dec. 4, 2015), ECF No. 17-2.

         The circuit court initially appointed Aaron Graves as Fitz's counsel but later disqualified him for a conflict of interest. The court then appointed Louis Nagy and granted Nagy's motion for a continuance. Nagy asked for two more continuances, citing voluminous evidence and the Commonwealth's failure to disclose exculpatory witness statements. The trial court granted the motions and found that Fitz had waived his speedy trial rights each time.

         A jury convicted Fitz of second-degree murder and use of a firearm in commission of murder, and he pleaded guilty to possession of a firearm after a conviction of a non-violent felony. The Rockingham County Circuit Court sentenced Fitz to forty-eight years in prison. After the trial, the trial court denied Fitz's motion to set aside the verdict, and the Court of Appeals and the Supreme Court of Virginia denied his direct appeals. Fitz did not file a state habeas petition. The respondent acknowledges that Fitz's petition is timely.

         II.

         Fitz brings six claims:[2]

I. The trial court erred when it denied Fitz's motion to strike two jurors for cause;
II. The trial court abused its discretion when it removed Fitz's counsel of choice, Aaron Graves, and replaced him with Louis Nagy;
III. The trial court erred in finding the evidence sufficient for both second-degree murder and use of a firearm in murder;
IV. The trial court erred in giving an incomplete definition of malice, which did not include the required explanation of heat of passion;
V. Counsel was ineffective for:
A. failing to call requested witnesses;
B. failing to prepare jury instructions in advance of trial as required under Virginia rules;
C. failing to adequately investigate, provide adversarial representation, and challenge the Commonwealth's withholding of Brady[3]material and use of knowingly false statements, testimonies, and evidence, and for requesting continuances that waived Fitz's speedy trial rights;
D. laboring under divided loyalties that prevented counsel from providing zealous representation;
E. failing to press for discovery;
F. failing to challenge Investigator Spiggle's testimony that Fitz told him that the victim had disrespected him;
G. failing to investigate the victim's background, interview witnesses, and pay travel expenses for potential defense witness Aaron Strode to testify on Fitz's behalf at trial;
H. refusing to move to dismiss as vindictive five additional charges brought by the Commonwealth;
I. refusing to suppress fraudulent use of jailhouse information and state witnesses providing false testimony in exchange for favor from the state;
J. conceding his motion to compel Brady information from the state regarding the victim's criminal background and gang affiliation;
K. failing to object to the jury instruction defining malice on the ground that it did not adequately define "heat of passion"; and

         VI. Fitz's due process rights were violated because:

A. the Commonwealth failed to timely disclose Brady material which caused delay and deprived him of his right to a speedy trial, and the trial court failed to hold the Commonwealth responsible for its late disclosure;
B. the Commonwealth forced Fitz to choose between his right to a speedy trial and his right to effective counsel;
C. the trial court was biased against Fitz and erred when it accepted five additional indictments which were motivated by vindictiveness;
D. the trial court erred when it allowed counsel two continuances against Fitz's wishes;
E. the jury was biased due to media coverage;
F. the trial court forced Fitz to choose between his right to effective assistance of counsel and his right to a fair and impartial trial;
G. the trial court erred in appointing Nagy as defense counsel because Nagy had a heavy workload and was not prepared to ...

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