United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION TO
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
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
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.
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.)
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.
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.(Id. at 1-2.)
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. 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
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.)
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.)
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
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
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.
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
(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
EXHAUSTION AND PROCEDURAL DEFAULT
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. §
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).
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). 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).
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
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)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) 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
CLAIM ONE - ACTUAL INNOCENCE
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 ...