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Ali v. Lawrenceville Correctional Center

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

December 28, 2018

ABIR ALI, Petitioner,



         Abir Ali, a Virginia inmate proceeding pro se, submitted a 28 U.S.C. § 2254 petition (hereinafter "§ 2254 Petition," ECF No. 26) challenging his 2013 conviction in the Circuit Court of Fairfax County (hereinafter "Circuit Court") of second-degree murder. On his § 2254 Petition form, Ali argues that he is entitled to relief on the following grounds:[1]

Claim One: "Counsel failed to conduct a pre-trial investigation [and] interview Ms. Parada which could divulge elicit essential impeachment evidence. [The] result of this neglect prejudiced the case by a bias[ed] witness." (§ 2254 Pet. 6.)
Claim Two: "Counsel failed to impeach Ms. Parada with the help of clear [and] convincing evidence which [was] not represented [and] resulted [in] an unconstitutional incarceration according to Strickland[ v. Washington, 66 U.S. 668');">466 U.S. 668, 687 (1984)]." (Id. at 8.)
Claim Three: "Counsel didn't [(a)] cross-examine the medical expert, Dr. Diangelo, [and, (b)] did not call the court-appointed expert for the defense, Dr. Fowler, who could testify regarding Mr. Patel's accidental death [which] resulted [in] error." (Id. at 9.)

         Respondent has filed a MOTION TO DISMISS AND RULE 5 ANSWER ("Motion to Dismiss," ECF No. 33) arguing that Ali's claims lack merit. Despite the provision of notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Ali filed no response.


         Ali was initially charged with first-degree murder. (Sept. 23, 2013 Tr. 23.) After a jury trial, Ali was convicted of second-degree murder and was sentenced to eighteen years of incarceration. (ECF No. 35-1, at 1-2, 4.) Ali appealed his conviction, arguing that insufficient evidence existed to support his conviction for second-degree murder. (ECF No. 35-2, at 1.) In rejecting this claim, the Court of Appeals of Virginia aptly summarized the evidence of Ali's guilt as follows:

Appellant was convicted of second-degree murder. He contends the evidence is insufficient to support his conviction. Specifically, he argues the "trial court erred by finding sufficient evidence that Bharat Patel's death was an unlawful killing and not an accidental killing." He also contends the evidence failed to establish he "possessed the requisite malice to establish murder over voluntary manslaughter as the evidence supported that [he] and [the victim] were engaged in mutual combat thereby negating the malice necessary for second degree murder."
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438; 443, 358 S.E.2d 415, 418 (1987)).
So viewed, the evidence proved that appellant was romantically involved with the victim's wife. In June 2012, the victim, Bharat Patel, returned to his residence and discovered appellant there with his wife. Saraswati Patel, the victim's spouse, testified that on June 8, 2012, after Patel had learned of her affair with appellant, she called appellant and informed him Patel had threatened to kill her, himself, and appellant if Saraswati Patel had any contact with appellant. Later that night, Saraswati Patel again called appellant and told him she would soon be driving home with her husband from the restaurant where they worked. She also told appellant she was scared and did not want to go home with her husband. Appellant indicated he might come get her from the residence. Once home, Saraswati Patel went to her room. Later that night, she woke up and noted her husband was not in the residence. After she was unable to find him, she called the police.
Digma Medina De Parado Medrano testified she was parking her car at the apartment complex where the Patels lived when she saw a man walk in front of her car twice. She identified him as appellant. She saw him approach an older man. When the two men got close to each other, appellant removed a black object from his pocket. Medrano explained it appeared that appellant "hugged" the older man and she saw a blue light emit from the black object. Appellant placed the object on the older man's stomach and arm. After the older man was touched with the object a second time, he fell to the ground. Appellant then moved the older man into some nearby bushes. She heard the older man calling for help, then heard silence and saw appellant emerge from the bushes. She called the police.
The police found the victim's body in the bushes and located bloodstains throughout the area. The victim's autopsy revealed he had a number of abrasions on his body and a laceration on the left side of his head. Two of the victim's teeth had been knocked out during the altercation. The medical examiner testified Patel died from blunt head trauma.
When first confronted by the police, appellant denied having any involvement with the incident. Later, he admitted traveling to the Patels' apartment complex and that he encountered the victim there. Appellant claimed the two struggled and that he defended himself against Patel. He admitted having purchased a stun gun before the confrontation. His description of the encounter differed from Medrano's account of the events she witnessed. Appellant confirmed he moved Patel into the bushes and that he left without reporting the incident.
"In Virginia, every unlawful homicide is presumed to be murder of the second degree." Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 (1982) . "Murder at common law is a homicide committed with malice, either express or implied." Id. Second-degree murder does not require a specific intent to kill. See Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). "It is quite clear that one may slay maliciously without actually intending to kill." Ronald J. Bacigal, Criminal Offenses and Defenses 339 (2011-12) . If he acts with malice, the accused need only intend "to perform the conduct" causing the victim's death. Id. at 340.
Malice inheres in the "doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will." Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947). "Implied malice may be inferred from 'conduct likely to cause death or great bodily harm, willfully or purposefully undertaken.'" Canipe v. Commonwealth, 25 Va.App. 629, 642, 491 S.E.2d 747, 753 (1997) (quoting Essex v. Commonwealth, 228 Va. 273, 281, 322 S.E.2d 216, 220 (1984)) .
Malice ... is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. . . . [Proof of] malice . . . require[s] . . . a wrongful act . . . done "willfully or purposefully." This requirement of volitional action is inconsistent with inadvertence. Thus, if a killing results from [criminal] negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied[, and the offense constitutes manslaughter]. In order to elevate the crime to second-degree murder, the defendant must be shown to have willfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.
Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 219-20 (1984) (citation omitted) (quoting Williamson v. Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)). "Whether the defendant acted with malice is a question for the trier of fact." Id. at 280, 322 S.E2d at 220.
Voluntary manslaughter is the unlawful killing of another without malice, actual or implied, upon a sudden heat, reasonable provocation, or in mutual combat. See Moxley v. Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953) (quoting Read v. Commonwealth, 63 Va. (22 Gratt.) 924, 937-38 (1872)).
For combat to be "mutual," it must have been voluntarily and mutually entered into by both or all parties to the affray. See Smith [v. Commonwealth], 17 Va.App. [68, ] 72, 435 S.E.2d [414, ] 417 [(1993)]. It is settled that "[o]ne who is assaulted may and usually does defend himself, but the ensuing struggle cannot be accurately described as mutual combat." Harper v. Commonwealth, 165 Va. 816, 820, 183 S.E. 171, 173 (1936).
Lynn v. Commonwealth, 27 Va.App. 336, 356, 499 S.E.2d 1, 10 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).
Appellant repeatedly states in his petition that there was no evidence he intended to kill Patel. He also asserts that "[t]he circumstances surrounding the incident that night do not support the hypothesis that [he] purposefully caused the head trauma seen in Mr. Patel." Appellant contends the evidence failed to establish he acted with malice and instead the two were engaged in mutual combat.
As noted above, second-degree murder does not require proof of any specific intent. See Tizon v. Commonwealth, 60 Va.App. 1, 11, 723 S.E.2d 260, 265 (2012). The Commonwealth must merely prove '"a r- malicious purpose to do the deceased a serious personal injury or hurt, '" Id. (quoting Dock's Case, 62 Va. (21 Gratt.) 909, 913 (1872)). Here the record supports the jury's conclusion that appellant purposefully engaged in conduct likely to cause death or bodily harm. Appellant traveled to appellant's residence in order to confront him and armed himself with a stun gun beforehand. Medrano's description of the encounter between appellant and Patel demonstrates appellant, without provocation, repeatedly attacked Patel with the stun gun until Patel fell to the ground. Appellant then moved Patel to a secluded location while Patel called for help. Appellant did not leave the area until Patel was silent, suggesting he continued his attack on the injured man after moving him into the bushes. Rather than calling for emergency help, appellant then fled the scene.
"Evidence of flight may be considered as evidence of guilt along with other pertinent facts and circumstances." Hope v. Commonwealth, 10 Va.App. 381, 386, 392 S.E.2d 830, 833 (1990) (en banc) (explaining that acts or conduct of accused after the crime may tend to show consciousness of guilt) . Furthermore, the jury, as fact finder, could consider appellant's changing stories to law enforcement authorities about Patel's death as evidence that he was "attempting to conceal his guilt by making inconsistent explanations." Iglesias v. Commonwealth, 7 Va.App. 93, 110, 372 S.E.2d 170, 179-80 (1988) (en banc).
An appellate court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at 193, 677 S.E.2d at 282 (quoting Jackson, 443 U.S. at 319). Thus, when a jury has rendered its verdict, "it is not for this court to say that the evidence does or does not establish his guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion." Cobb v. Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929). An "appellate court is no substitute for a jury." Id.
This deferential appellate standard "applies not only to findings of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from the facts proved." Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64 (2010). Thus, a fact finder may "draw reasonable inferences from basic facts to ultimate facts," Haskins v. Commonwealth, 44 Va.App. 1, 10, 602 S.E.2d 402, 406 (2004) (citation omitted), unless doing so would push "into the realm of non sequitur," Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).
The trier of fact was not required to accept appellant's trial testimony. See Cantrell v. Commonwealth, 7 Va.App. 269, 290, 373 S.E.2d 328, 339 (1988). The jury was entitled to conclude that appellant lied and to infer that he testified untruthfully in order to hide his guilt. See Daung Sam v. Commonwealth, 13 Va.App. 312, 320, 411 S.E.2d 832, 837 (1991). The jury rejected appellant's testimony and accepted Medrano's account of the events.
Under settled principles, "the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Scott v. Commonwealth, 55 Va.App. 166, 172, 684 S.E.2d 833, 837 (2009) (en banc) (citation omitted). "Whether the hypothesis of innocence is reasonable is itself a 'question of fact,' subject to deferential appellate review." Cooper v. Commonwealth, 54 Va.App. 558, 573, 680 S.E.2d 361, 368 (2009) (quoting Clanton v. Commonwealth, 53 Va.App. 561, 572-73, 673 S.E.2d 904, 910 (2009) (en banc)).
Stated another way, "[m]erely because defendant's theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his innocence has not been excluded." Clanton, 53 Va.App. at 573, 673 S.E.2d at 910 (quoting Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964)). Thus, "the question is not whether 'some evidence' supports the hypothesis, but whether a rational fact finder could have found the incriminating evidence renders the hypothesis of innocence unreasonable." James [v. Commonwealth], 53 Va.App. [671, ] 682, 674 S.E.2d [571, ] 577 [(2009)] (citing indirectly [Commonwealth v.] Hudson, 265 Va. [505, ] 513, 578 S.E.2d [781, ] 785 [(2003)]). In practical terms, this means that-even if not "inherently ...

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