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Harrison v. Baker

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

January 31, 2019

EARLANDO MARIO HARRISON, Petitioner,
v.
B. BAKER, Respondent.

          MEMORANDUM OPINION (GRANTING MOTION TO DISMISS)

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE

         Earlando Mario Harrison, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit Court for the City of Hampton, Virginia ("Circuit Court"). Harrison argues that he is entitled to relief on the following grounds:[1]

Claim One: "Newly discovered evidence (notarized affidavit)," in which "[t]he alleged victim of the offenses that [Harrison has] been wrongfully convicted of, Jeremy Shelton, voluntarily recanted his accusations of [Harrison] being the person that assaulted him." (§ 2254 Pet. 5.)
Claim Two: "Ineffective assistance of counsel" because "[a]fter being made aware of the after-acquired newly discovered evidence and supplied with a copy of it (notarized affidavit), [Harrison's] trial counsel failed to conduct an appropriate investigation or at the least, inform the proper authority of the evidence that cast doubt upon the correctness of the conviction." (Id. at 7.)
Claim Three: "Prosecutorial misconduct" because "[a]fter being made aware of the newly discovered evidence and supplied with a copy of it (notarized affidavit), the Commonwealth's Attorney ... failed to conduct an appropriate investigation or at the least inform the appropriate authority of evidence that exonerates [Harrison] or cast[s] doubt upon the correctness of the conviction." (Id. at 8.)

         Respondent filed a Motion to Dismiss, asserting that Harrison's claims are procedurally defaulted and lack merit. (ECF No. 10.) Harrison filed a Response. (ECF No. 15.) For the reasons set forth below, Respondent's Motion to Dismiss (ECF No. 10) will be granted. Harrison's § 2254 Petition will be denied because Harrison's claims are procedurally defaulted and without merit.

         I. PROCEDURAL HISTORY

         After a jury trial, Harrison was convicted of one count of malicious wounding and one count of use of a firearm in the commission of a felony. (See ECF No. 12-1, at 1.) On June 2, 2015, the Circuit Court sentenced Harrison to fifteen years of incarceration.[2](Id. at 1-2.)

         Harrison appealed his convictions, challenging "the sufficiency of the evidence to support his convictions of malicious wounding and using a firearm in the commission of a felony." (ECF No. 12-2, at 1.) On December 30, 2015, the Court of Appeals of Virginia denied Harrison's petition for appeal. (Id.) In rejecting Harrison's sufficiency of the evidence arguments for the malicious wounding and use of a firearm in the commission of a felony convictions, the Court of Appeals of Virginia found:

In the early morning hours of July 26, 2014 Jeremy Shelton was shot three times by an assailant who was outside Shelton's Hampton apartment. Shelton sustained gunshot wounds in his hand, shoulder, and head.
Shelton testified that at about 2:30 a.m. on July 26, 2014 he was on the second floor of the apartment on the couch when there was a knock at the door. Shelton tried to look outside to see who was there, but he did not see anyone. Shelton opened the door and looked out over the balcony. He saw a burgundy Jeep Cherokee in the parking lot with a female in the driver's seat. She spotted Shelton, and said, "There he go right there." Appellant, whom Shelton knew, had been getting in the back seat of the vehicle.[3] After the female made the comment, appellant approached Shelton and asked if Shelton remembered him. Appellant was holding a gun wrapped in a shirt. Appellant pinned Shelton to the wall, and Shelton struggled for the weapon. The gun fired, striking Shelton in the finger. Shelton released the firearm and tried to retreat inside the apartment. As he was slipping on the front door mat, Shelton was struck in the head by a second shot. Shelton tried to close the door, but appellant stuck his arm with the gun into the apartment. The gun fired a third time. Afterward, Shelton managed to slam the door. He immediately called for medical assistance.
Shelton testified that the area outside the apartment was well-lit at the time of the shooting. He clearly saw appellant's face, and he was certain appellant was the shooter. Several days after the shooting, Shelton identified appellant as the assailant from a photographic lineup. Initially, however, Shelton lied to the police and said he could not identify the shooter. Shelton said he lied because he was angry and intended to seek revenge against appellant himself. He later changed his mind and decided to cooperate with the police. Appellant admitted having a prior felony conviction for drugs, and said he was uncomfortable working with the police.
The police made telephone contact with appellant, and he promised to come to the police department. However, appellant did not turn himself in until September 2014. When the police then questioned appellant, he said he was with his wife, Starro Harrison, at the date and time of the shooting. Within days of the shooting, the police had gone to Harrison's townhouse on Cape Dorey Drive with warrants for appellant's arrest. Harrison denied that appellant was living there or had been with her at the time of the shooting.
The police searched the townhouse and found no sign that a male was living there.
Testifying in his own behalf, appellant said he was living with Harrison at the townhouse on July 26, 2014, and he was at home with her at the time of the shooting. He denied that he was the person who shot Shelton. Appellant admitted having prior felony convictions.
Harrison testified appellant was living with her on July 26, 2014, and many of his belongings were in boxes in the dining room. Harrison claimed appellant was home with her at the time of the shooting. She said that when the police came to her home on July 27, 2014 she was afraid, so she falsely told them appellant did not live there and she had not seen him in about a week.
Appellant contends the evidence was insufficient to prove that he was the person who shot Shelton. However, the jury accepted the Commonwealth's evidence, and rejected the appellant's alibi defense. "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). "In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable v. Commonwealth, 27 Va.App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Moreover, the trial court was permitted to consider appellant's prior felony convictions in assessing his credibility. See Code § 19.2-269.
Shelton identified appellant, with whom he was acquainted, as the person who shot him. Shelton stated he was certain of his identification, and there was nothing to prevent him from having a clear view of the shooter. Shelton explained his initial reluctance to identify appellant and cooperate with the police. Considering all of the facts and circumstances, the evidence was sufficient to prove beyond a reasonable doubt that appellant was the person who shot Shelton and that appellant was guilty as charged.

(Id. at 1-3 (footnote number changed).) On January 18, 2017, the Supreme Court of Virginia refused the petition for appeal. (ECF No. 12-3, at 1.)

         On February 13, 2017, Harrison filed a petition for a writ of actual innocence based on nonbiological evidence in the Court of Appeals of Virginia. (ECF No. 12-4, at 1-35.) Harrison based his claim of innocence on the "GPS coordinates of [his] cellular phone." (Id. at 2.) On February 28, 2018, the Court of Appeals of Virginia summarily dismissed the petition, holding, in pertinent part:

In support of his petition, petitioner supplies copies of records obtained from Sprint Corporation relating to the usage of his cell phone. Petitioner maintains that the records demonstrate he was not present at the location where the victim was shot on July 26, 2014. He contends the records corroborate the alibi evidence he presented at trial.
Documents supplied by petitioner show that, prior to petitioner's sentencing, his attorney filed a request to obtain the phone records from Sprint by subpoena duces tecum. Pursuant to that subpoena, Sprint provided the records pertaining to the phone to the trial court clerk on April 24, 2015. Thus, the evidence upon which petitioner now relies was both known and available to petitioner and his attorney before his convictions became final in the trial court. Accordingly, the evidence does not meet the requirements of Code §19.2-327. ll(a)(iv).

(ECF No. 12-5, at 2.)

         On March 2, 2017, Harrison filed a petition for a writ of habeas corpus in the Circuit Court. (ECF No. 12-6, at 1, 15.) In his state habeas petition, Harrison raised the following claims for relief:

a. Prosecutorial Misconduct: (1) Knowingly used perjured testimony to wrongfully/maliciously pursue conviction. (2) Allowed government witness to appeal to the emotions of the jury. (3) Misstatements within summation and during trial presented reversible error. (See attached pages)
b. Ineffective Assistance of Counsel: (1) Failed to obtain requested material evidence. (2) Failed to object to government witness statements and gestures that appealed to the emotions of the jury. (3) Failed to request evidentiary hearing to exclude/suppress perjured testimony and pretrial identification. (See attached pages)
c. Lack of Probable Cause to Obtain Arrest Warrants: (1) Police neglected to collect DNA evidence from the crime scene that would have excluded [Harrison] as a suspect. (2) Police neglected to do background check on alleged victim. (3) Police neglected to obtain GPS evidence that would have excluded [him] as a suspect. (See attached pages)

(Id. at 4-5.) The Circuit Court also construed Harrison's state habeas petition to raise the following two additional ineffective assistance of counsel claims: "counsel failed to move for a Franks[4] hearing," and "counsel failed to object to improper statements in the prosecutor's closing argument." (See ECF No. 12-8, at 4.) On July 26, 2017, the Circuit Court denied and dismissed Harrison's petition on the merits. (Id. at 16-17.) Harrison did not appeal the Circuit Court's denial of his state habeas petition.

         On January 21, 2018, Harrison filed a petition for a writ of habeas corpus in the Supreme Court of Virginia and a "motion to file a writ of habeas corpus." (See ECF No. 12-9, at 1 (internal quotation marks omitted).) In Harrison's petition, he raised the following claims for relief:

a. Newly discovered evidence that proves my innocence beyond a shadow of a doubt and when viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found me guilty of the offenses.
b. Prosecutorial Misconduct: The Commonwealth's Attorney failed to investigate or inform the appropriate authority of the after acquired evidence after being made aware of its existence and being supplied with a copy of the evidence.
c. Ineffective Assistance of Counsel: My trial counsel failed to conduct an appropriate investigation or to alert the proper authority of the after acquired evidence after being made aware of its existence and being supplied with a copy of the evidence.

(Id. at 4-5.) On March 26, 2018, the Supreme Court of Virginia dismissed Harrison's petition as untimely, finding that "the petition was not filed within [one] year from the January 18, 2017, final disposition of petitioner's direct appeal." (Id. at 1 (citing Va. Code Ann. § 8.01-654(A)(2)).) The Supreme Court of Virginia also denied "the relief requested in the petitioner's 'motion to file a writ of habeas corpus.'" (Id.) On February 2, 2018, the Court received the instant § 2254 Petition. (§ 2254 Pet. 1.)

         II. EXHAUSTION AND PROCEDURAL DEFAULT

         Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted in considerations of federal-state comity," and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (some internal quotation marks omitted) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before the petitioner can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

         The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "opportunity" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. Fair presentation demands that a petitioner present "both the operative facts and the controlling legal principles" to the state court. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks omitted) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

         "A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.1).[5] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citations omitted). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262(1989).

         In Harrison's § 2254 Petition, he raises the same three claims that he presented to the Supreme Court of Virginia in his January 21, 2018 state habeas petition. (§ 2254 Pet. 5, 7-8; ECF No. 12-9, at 1, 4-5.) The Supreme Court of Virginia dismissed Harrison's state habeas petition because "the petition was not filed within [one] year from the January 18, 2017, final disposition of petitioner's direct appeal." (ECF No. 12-9, at 1 (citing Va. Code Ann. § 8.01-654(A)(2)).) "Virginia Code § 8.01-654(A)(2) constitutes an adequate and independent state-law procedural rule." Baker v. Clarke, 95 F.Supp.3d 913, 917 (E.D. Va. 2015). Thus, Harrison's claims in his § 2254 Petition are defaulted.

         Harrison argues that the Supreme Court of Virginia incorrectly based its dismissal on the untimeliness of his petition because under 28 U.S.C. § 2244(d)(1), he was permitted to file his state habeas petition "within one year of the date which the facts supporting the claims (newly-discovered evidence) was discovered and obtained." (ECF No. 15, at 2.) However, Harrison is incorrect. Va. Code. Ann. § 8.01-654(A)(2)[6]governs the timeliness of state habeas petitions, including Harrison's habeas petition in the Supreme Court of Virginia, and 28 U.S.C. § 2244(d)(1)[7] applies to federal habeas petitions. Moreover, Harrison acknowledges that he received the "newly-discovered evidence" on April 2, 2017 when he received an affidavit from the victim, Jeremy Shelton. (ECF No. 15, at 3.) Harrison fails to explain, and the Court fails to discern, why he waited until January 21, 2018 to present claims regarding this "newly discovered evidence" in a state habeas petition in the Supreme Court of Virginia. (See ECF No. 12-9, at 1-12.) Nevertheless, because Harrison presents a claim of actual innocence in Claim One, and subscribing to Harrison's claim of actual innocence would permit the Court to consider the merits of his otherwise procedurally defaulted claims, the Court first addresses Claim One. See Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (citations omitted).

         III. CLAIM ONE - ACTUAL INNOCENCE

         In Claim One, Harrison contends that there is "[n]ewly discovered evidence, (notarized affidavit)," in which "[t]he alleged victim of the offenses that [Harrison has] been wrongfully convicted of, Jeremy Shelton, voluntarily recanted his accusations of [Harrison] being the person that assaulted him." (§ 2254 Pet. 5.) In Harrison's Response, he states, for the first time, that he "prays that the Court conducts an evidentiary hearing in regards to the ...


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