United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
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:
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.)
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.
FACTUAL AND PROCEDURAL HISTORY
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
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
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
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
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
"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