United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
petitioner, a Virginia inmate proceeding pro se, filed this
action as a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254. He seeks court-ordered DNA testing of
evidence from his state criminal case and habeas corpus
relief from the state court judgment under which he is
confined. The court concludes that the petition must be
in the Tazewell County Circuit Court convicted John Mark Ealy
of raping a child under the age of thirteen years, in
violation of Virginia Code Ann. § 18.2-61, and of taking
indecent liberties with a child under the age of fourteen
years, with whom he had a custodial or supervisory
relationship, in violation of Virginia Code Ann. §
18.2-370.1(A)(vi). The Court of Appeals of Virginia affirmed
Ealy's convictions. Ealy v. Com., No. 2694-04-3,
2006 WL 3798172 (Va. Ct. App. Dec. 28, 2006). Court records
online indicate that Ealy's subsequent appeal to the
Supreme Court of Virginia was refused, and his petition for
rehearing was denied on September 24, 2007.
court of appeals held that:
[t]he evidence established] that Ealy moved into his
girlfriend's home in January 2003. The victim, Ealy's
girlfriend's eleven-year-old daughter, also lived in the
home. The victim testified that Ealy began sexually abusing
her soon after he moved in with her mother. Eventually, Ealy
had sexual intercourse with the victim as well. The victim
reported the abuse in March 2003.
Ealy, 2006 WL 3798172 at *1.
the investigation of these crimes, the Commonwealth seized
items of bed linen and a pair of adult-sized women's
underpants. According to Ealy, a forensics expert
recommended, and the court ordered, DNA testing on all of
these items for comparison to the DNA of the child's
mother. The Commonwealth tested only the underpants and did
not obtain the mother's DNA for testing. Ealy pleaded not
guilty and maintained his innocence throughout the
proceedings. His attempts to obtain additional DNA testing
were denied. Ealy complains that at trial, the Commonwealth
represented that the underpants belonged to the minor victim
and used the results of DNA testing of the underpants
"as a nexus of physical facts to convict Ealy of sex
with a minor." Pet. 31, ECF No. 1. Ealy contends that
"the Mother used her own underwear to implicate [Ealy]
in a sex act with the minor (daughter)." Id. at
23. He claims that testing available at the time of trial
"could not distinguish between parent and child(s)
DNA," but that currently available test methods could do
October 17, 2008, Ealy filed a petition for a writ of habeas
corpus in the circuit court that allegedly raised DNA issues.
That court denied the petition, and on May 27, 2009, the
Supreme Court of Virginia dismissed Ealy's
habeas appeal on procedural grounds. Ealy has also
filed motions in the trial court in 2010 and again in 2015,
related to DNA testing. Both motions were denied. In denying
the 2010 motion, the circuit court stated:
This cause came before the Court on Defendant's Motion
for Collection and Testing of Human Biological Evidence.
Defendant requests that biological testing of a sample from
the victim's mother . . .be conducted to eliminate her as
the contributor of the specimen found on panties belonging to
the victim and presented as evidence in the case against the
The Virginia Court of Appeals issued a written opinion in
this case on August 4, 2005 holding that the Tazewell County
Circuit Court did not err in eliciting saliva samples from
the Defendant in connection with the physical evidence
presented. Further the Court of Appeals found that expert
analysis was conducted on the panties and revealed a
significant amount of sperm on the panties consistent with
the Defendant's DNA, as well as fluid matching the
victim's DNA interspersed with the Defendant's sperm.
Further the forensic scientist testified that no other DNA
was found on the panties.
Pet. Exhibits, at 36, ECF No. 1-1.
signed and dated this § 2254 petition on June 17, 2018,
stating under penalty of perjury that he was also placing his
petition in the prison mailing system on that date.
Ealy's petition presents the following contentions as
grounds for relief under § 2254:
1. The court has discretion under 21 U.S.C. § 848(q)(9)
to order new DNA testing that is reasonably necessary to
support Ealy's claim of actual innocence;
2. The court is empowered to order the custodians of the
evidence to make it available to a private ...