United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA, UNITED STATES DISTRICT JUDGE
Lee Sanford, a Virginia inmate proceeding pro se, has filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of his
conviction for second degree murder in the Circuit Court for
the City of Newport News. Before the Court is
respondent's Motion to Dismiss the petition [Dkt. No. 7],
to which petitioner has filed a response. [Dkt. No. 12] For
the following reasons, the Motion to Dismiss will be granted.
a jury trial, Sanford was convicted on January 11, 2013, and
received a sentence of forty (40) years incarceration. Case
No. CR11000078-00. In the Final Order he issued in
Sanford's state habeas corpus petition, the trial judge
described the facts underlying the conviction as
On December 3, 2003, Petitioner was living in an apartment
with his girlfriend, Towanna Brinkley. [FN] Dawn Uzzle, who
lived in an adjacent apartment, saw and heard Petitioner and
Brinkley return home during the afternoon or early evening
hours. At approximately 5:30 p.m., Uzzle heard a series of
loud thumps and the muffled screaming of a woman. At the same
time, another neighbor, Cynthia Jones, heard a woman
screaming, "Help me, help me, help me." Uzzle also
noticed that her living room closet door, which backed up to
a similar closet in Petitioner's apartment, began
"slamming on the hinges" as a result of the force
applied on the wall from Petitioner's side of the wall.
FN: The crime underlying this habeas matter was committed in
2003, but was deemed a "cold case" by the Newport
News Police Department. (10/31/2012 Tr. at 383). Petitioner
was tried in 2012.
Uzzle called 911 and watched to see if anyone would exit
petitioner's apartment, but no one did. The police soon
arrived and knocked on Petitioner's apartment door, but
no one responded, and they left.
Cartell Brinkley, the victim's adult son, arrived shortly
after the police had left and knocked on Petitioner's
door, but no one answered. Brinkley remained in the area
for" a couple of hours," and kept "going back
and forth checking in," but no one responded from inside
Petitioner called Corey Ridley sometime after midnight and
asked to repay a $40 debt. As Ridley drove toward
Petitioner's apartment, Petitioner called him again. When
Ridley arrived, he knocked on Petitioner's apartment
door, and Petitioner opened it. The two men walked partially
into the dark living room before entering the kitchen, which
was only illuminated by "a little dim light."
Ridley saw two twenty dollar bills on the kitchen counter,
which appeared to have blood on them. When Ridley asked about
the "red spots" on the cash, Petitioner claimed he
had cut his finger. Ridley knew that Petitioner shared the
apartment with Towanna Brinkley, but he did not see her
before leaving. When Ridley asked where Brinkley was,
Petitioner claimed she was out driving Petitioner's car,
but Ridley "kn[e]w for a fact that she didn't
drive." Ridley estimated he was in the apartment for
approximately 15 minutes before he left.
At approximately 2:20 a.m., Uzzle and Jones were awakened by
the alarm of a smoke detector. Uzzle called 911 again when
she heard the "blood curdling screams of a man."
When Uzzle turned the lights on, she noticed smoke
"everywhere" in her apartment, and relayed to the
emergency dispatcher that there was also a fire in the
The fire department arrived at the apartment building and
determined the fire was originating from Petitioner's
apartment. Inside, firefighters found Petitioner sitting near
the living room closet, burned and bleeding from cuts to his
arms. Firefighter Bruce Hagerman discovered, and subsequent
analysis confirmed, that the source of the fire originated in
the master bedroom of the apartment. A mattress was standing
upright on top of a box spring, and "all the fabric had
been burned off the mattress." Hagerman noticed blood on
a pile of sheets and clothing in the bedroom. In the
bathroom, Hagerman saw "blood in the bathtub, on the ...
floor, toilet, and ... sink." Hagerman then returned to
the living room, where Petitioner had been discovered, and
saw Towanna Brinkley with her upper body in the closet and
her lower body extending into the living room. Brinkley was
dead, and there was blood around and near her upper body.
As firefighters removed Petitioner from the apartment, he
repeatedly said, "Let me die." Firefighter Jason
Edwards assisted in transporting Petitioner to the hospital
by ambulance. At the hospital, Edwards heard Petitioner twice
say that someone had broken into his apartment, tried to kill
him and his girlfriend, then set the apartment on fire with
an accelerant. The police found no signs of forced entry, and
fire investigators recovered an empty bottle of rubbing
alcohol on the floor beside the bed where the fire
Leah Bush, M.D., the Chief Medical Examiner for the
Commonwealth, testified that she was a Deputy Medical
Examiner in 2003 when she conducted an autopsy on Brinkley.
Dr. Bush testified that Brinkley had been stabbed 11 times in
her torso, seven of which were fatal. Brinkley also suffered
cuts to her face and defensive wounds to her hands. Dr. Bush
opined that Brinkley would have died "within
minutes" of being stabbed. Brinkley also suffered no
thermal injuries and had no soot in her airways, which led
Dr. Bush to conclude that Brinkley died before the fire was
Sandy Cleary, a forensic examiner with the Newport News
Police, testified that she collected and photographed
evidence at Petitioner's apartment. Cleary analyzed two
sets of clothes with blood on them. DNA testing demonstrated
that one set of clothing, a t-shirt and jeans recovered from
the master bedroom, had Brinkley's blood spattered on
them. The t-shirt bore Petitioner's initials,
"ALS," and the jeans contained Petitioner's
identification and other personal items. DNA testing revealed
the second set of clothing, a t-shirt recovered from a spare
bedroom and the jeans Petitioner was wearing when he was
transported to the hospital, contained Petitioner's
blood, as well as Brinkley's blood.
A pair of brown sandals recovered from the master bedroom
also had Brinkley's blood on the bottom and sides. The
"inside" of the sandals contained a DNA mixture
from both Petitioner and Brinkley. Shoe prints tracking
Brinkley's blood away from her body matched the
impression of the sandals.
Angela Moore, a forensic examiner with the Newport News
Police, qualified as an expert in blood spatter analysis.
Moore testified that the blood found in the bathroom
demonstrated a "passive" drip patter, which she
described as lacking "directionality." The blood
found on the wall near Brinkley's body and the clothes
recovered from the crime scene, however, had directionality,
which would have required "some force to deposit."
Two blood-stained knives were found in Petitioner's
apartment. The first knife, a "small folding buck
knife," was discovered in the closet beside
Brinkley's body. The second knife, "a very large
knife with a large blade," was discovered inside a desk
in the master bedroom. The folding knife had Brinkley's
blood on it, and the "large knife" had both
Brinkley's and Petitioner's blood on it. A sponge was
also found in the master bedroom, which contained
In total, more then 30 different swabs were obtained from
evidence recovered at the scene. Only one swab, from a shirt,
contained DNA other than that of Petitioner and/or Brinkley.
The sample, however, was "so small" that it could
have been "environmental contamination."
Petitioner presented his own experts in blood spatter
analysis and fingerprint analysis, who testified that (i) the
Commonwealth's expert's blood spatter analysis was
incomplete because she did not physically examine the scene
at the time of the crime; and (ii) no fingerprints were
recovered from the scene of the crime. Isaiah Davis also
testified on behalf of Petitioner, and claimed that Corey
Ridley had told him "he had gotten himself in some
trouble... and he was going ... to talk to someone in law
enforcement to try and make a deal to get himself out of
trouble." On cross-examination, Davis claimed that the
conversation took place within two years of trial.
Final Order, Resp. Ex. C at 4 - 8.
first trial commenced on February 7, 2012. Corey Ridley, a
witness for the Commonwealth, testified that he visited the
apartment shared by Sanford and the victim; it was dimly lit,
and he could not see all of it. Tr. 2/7/2012 at 75. When the
prosecutor asked Ridley if he thought "anything of
it" when Brinkley "wasn't with [Sanford],"
Ridley responded that he knew Sanford "from a past
killing." Id. at 75-76. The prosecutor
interrupted Ridley and requested a recess, and advised the
court outside the jury's presence that she had
"warned all witnesses they could not bring up prior
incidents." Id. at 76-77. She then stated,
"[I]t sounded to me like [Ridley] was bringing up the
worst of prior incidents, and I don't know if the jury
caught onto it. I don't think I caught it in time."
Id. Defense counsel stated, "[W]e were going
along great in this case. Of course, the Commonwealth was
doing a fantastic job. I know good and well they stayed away
from it, but I honestly think it could - and I don't know
- that it could easily taint the jury." Id. at
77. Counsel then moved for a mistrial and the Commonwealth
did not oppose the motion, stating, "I don't think
this can be recovered from, Your Honor." Id. at
77. The trial court granted the motion and declared a
mistrial. Id. at 78.
counsel subsequently moved to dismiss the indictment on
speedy trial, double jeopardy, and prosecutorial misconduct
grounds. Tr. 5/11/2012 at 8-20; Tr. 8/10/2012 at 3-5. The
trial court denied all the motions. Id. In finding
that there had been no prosecutorial misconduct, the court
noted that the prosecutor had appeared "pretty shocked
in terms of like her whole case just went away when that guy
said something." Tr. 5/11/2012 at 12.
Sanford was convicted following a second trial in October,
2012, he appealed the conviction to the Court of Appeals of
Virginia, where he raised the following claims:
1. The trial court erred in denying his motion to dismiss for
violation of his statutory and constitutional rights to a
speedy trial where he was tried after the time limit
prescribed in Va. Code § 19.2-243.
2. The trial court erred in denying his motion to strike two
prospective jurors for cause.
3. The trial court erred in denying his motion to strike the
Commonwealth's evidence where it failed to establish his
guilt beyond a reasonable doubt.
convictions were affirmed in an unpublished opinion where the
court concluded that: (1) Sanford's speedy trial right
guaranteed by Va. Code § 19.2-243 was not violated, and
because he did not include argument to support his contention
that his constitutional speedy trial right was violated, the
claim was waived pursuant to Virginia Supreme Court Rule 5 A:
12(c)(5) ("Statements unsupported by argument,
authority, or citations to the record do not merit appellate
consideration."); (2) the trial court did not err in
denying Sanford's motion to strike two jurors; and (3)
because Sanford failed to renew his motion to strike at the
conclusion of the evidence or to move to set aside the
verdict, his challenge to the sufficiency of the evidence was
barred pursuant to Rule 5A:18 ("No ruling of the trial
court... will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of
the ruling."). Sanford v. Commonwealth, R. No.
0139-13-1 (Va. Ct. App. Sept. 13, 2013); Resp. Ex. A. The
Supreme Court of Virginia dismissed and refused Sanford's
petition for appeal of that result. Sanford v.
Commonwealth, R. No. 131824 (Va. Apr. 8, 2014).
March 15, 2015, Sanford filed a petition for a state writ of
habeas corpus in the trial court, raising the following
1. His double jeopardy rights were violated as a result of
the Commonwealth's misconduct, which gave rise to his
motion for mistrial.
2. Counsel provided ineffective assistance by failing to
supply Dr. Laura Pettier, a defense expert in bloodstain
analysis and crime scene investigation, with "case
files, reports, and photographs necessary to do an
analysis" which would have shown a change in the
flooring at the crime scene and revealed inaccuracies by the
3. Counsel billed him using "knowing and reckless
4. Counsel was ineffective for failing to interview and call
Detective Javier Espinoza to testify regarding
"potentially exculpatory information." The
testimony was necessary because Espinoza "was not an
expert in murder cases and some police procedures were not
5. Counsel was ineffective for failing to investigate and
call Dr. Christopher Haus, who would have testified that
Sanford "received several cuts," including one to
his neck. This would have contradicted the Commonwealth's
opening and closing statements and impeached the testimony of
a medic concerning Sanford's state of consciousness when
he arrived at the emergency room.
6. Counsel was ineffective for failing to introduce emergency
room medical records to support Sanford's claim that he
had been attacked.
7. Counsel was ineffective when he stated during opening and
closing arguments that Sanford had drugs in his system, and
when he did not state that "this crime was ... a
domestic battle between two combatants with knives." 8.
Counsel was ineffective for failing to present the testimony
of an expert witness who would have rebutted the
Commonwealth's DNA analysis.
9. Counsel was ineffective for failing to move to exclude
"damaging evidence" of "contamination of two
foreign DNA types." 10. Counsel was ineffective for
failing to enter into evidence a note Sanford wrote regarding
his "concern about imminent harm."
11. Counsel was ineffective for failing to introduce
photographs taken at the crime scene of keys and
Sanford's broken glasses, which would have shown that
"something out of the ordinary had occurred."
12. Counsel was ineffective for failing to preserve a
challenge to the sufficiency of the evidence at trial.
13. Counsel was ineffective for failing to cross-examine a
firefighter about his prior testimony in a preliminary
hearing and participated in "a deliberate act to deceive
the Court" when he failed to correct the name of the
firefighter which is misspelled in the transcript.
14. Counsel was ineffective for failing to have co-counsel
present during trial.
15. Counsel was ineffective for failing to protect
Sanford's right to a speedy trial.
16. The prosecutor "gave false testimony" at a
hearing on February 6, 2012 when she said witness Leroy
Nelson had "just come forth," because she had
questioned Nelson at a hearing on December 20, 2010.
17. The Commonwealth knowingly relied on false testimony by
18. The Commonwealth committed a Brady violation by
withholding numerous items of evidence.
19. Appellate counsel was ineffective for failing to argue
that Sanford was denied his constitutional right to a speedy
20. Appellate counsel was ineffective for failing to argue
that the Court of Appeals should review the sufficiency of
the evidence under the "ends of justice" exception
set out in Rule 5A:18.
21. Appellate counsel was ineffective for failing to raise a
double jeopardy claim.
The state court dismissed Sanford's habeas petition on
December 12, 2016. Resp. Ex. C. Specifically, the court held
that claim 1 (alleging a double jeopardy violation) was not
cognizable in a habeas corpus proceeding because the issue
had been raised at trial or on direct appeal; claims 16-18
were barred from habeas review by the rule of Slayton v.
Parrigan., 215 Va. 27, 205 S.E.2d 680 (1974), because
they were non-jurisdictional issues that could have been
raised at trial and on direct appeal; and the remaining
claims of ineffective assistance of counsel were without
merit. The Supreme Court of Virginia refused the petition for
appeal without opinion. Sanford v. Clarke, R. No.
170318 (Va. Feb. 26, 2018); Resp. Ex. E.
Sanford then turned to the federal forum and timely filed the
instant petition for § 2254 relief on March 13, 2018.
Respondent filed a Rule 5 Answer and a Motion to Dismiss with
a supporting brief and exhibits on April 27, 2018, and
supplied Sanford with the notice required by Roseboro v.
Garrison,528 F.2d 309 (4th Cir. 1975) and Local Rule