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Ealy v. Clark

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

December 7, 2018

JOHN MARK EALY, Petitioner,
v.
HAROLD CLARK, DIRECTOR, Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Senior United States District Judge.

         The 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 summarily dismissed.[1]

         I.

         A jury 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.

         The 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.

         During 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 so. Id.

         On 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 Defendant.
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.

         Ealy 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 ...

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