Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Crockett v. Clarke

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

March 26, 2019

CAMERON PAUL CROCKETT, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          M. HANNAH LAUCK, UNITED STATES DISTRICT JUDGE

         Cameron Paul Crockett, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition, ” ECF No. 1; “Amendment to § 2254 Petition, ” ECF No. 6)[1] challenging his conviction in the Circuit Court for the City of Virginia Beach, Virginia (“Circuit Court”). Crockett argues that he is entitled to relief on the following grounds:[2]

Claim One: “Crockett is actually innocent.” (§ 2254 Pet. 5.)
Claim Two: “Trial counsel was ineffective for failing to investigate and present evidence involving the driver's seatbelt mechanism.” (Id. at 7.)
Claim Three: “Crockett's Miranda[3] rights were violated when police interrogated him in a custodial setting without advising him of his rights against self-incrimination.” (Id. at 8.)
Claim Four: “Crockett's statements to police were involuntary.” (Id. at 10.)
Claim Five: “The Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by suppressing exculpatory evidence.” (Id. at 12.)
Claim Six: “The cumulative effect of the Commonwealth's Brady violations and of the ineffective assistance of counsel Crockett received at trial deprived him of a fair trial.” (Id. at 14.)
Claim Seven: “The Commonwealth violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking two African-American women from the venire.” (Id. at 16.)
Claim Eight: “Crockett's prosecuting attorney harbored a conflict of interest that violated [Crockett's] federal constitutional right to a fair trial by an impartial prosecution.” (Amendment to § 2254 Pet. 5.)

         Respondent filed a Motion to Dismiss, asserting, inter alia, that Crockett's claims are procedurally defaulted and lack merit. (ECF No. 13.) Crockett filed a Response (ECF No. 19) and a Corrected Response (ECF No. 20). For the reasons set forth below, Respondent's Motion to Dismiss (ECF No. 13) will be GRANTED, Crockett's § 2254 Petition (ECF No. 1) will be DENIED, and the Amendment to § 2254 Petition (ECF No. 6) will be DISMISSED because Crockett's claims are procedurally defaulted and without merit.

         I. Procedural History

         On May 26, 2011, a jury convicted Crockett of involuntary manslaughter. (ECF No. 15- 1, at 1.) However, on May 27, 2011, the Circuit Court declared a mistrial because the jury could not agree on Crockett's punishment during the penalty phase of the trial. (Id. at 2.) On March 1, 2012, a second jury convicted Crockett of involuntary manslaughter. (ECF No. 15-2, at 1.) On March 5, 2012, Crockett failed to appear for the penalty phase of the trial. (ECF No. 15-3, at 1.) The Circuit Court proceeded with this phase, despite Crockett's absence, and the jury “fix[ed] [Crockett's] punishment at 5 years” of incarceration. (Id.)

         After Crockett's failure to appear for the penalty phase of his trial, Crockett was charged with felony failure to appear. (See ECF No. 15-4, at 1.) On August 27, 2012, Crockett pled guilty to the charge of felony failure to appear. (Id.)

         Subsequently, Crockett moved for a new trial on the involuntary manslaughter charge. (ECF No. 15-5.) The Circuit Court denied Crockett's motion for a new trial. (ECF No. 15-6, at 1.) The Circuit Court sentenced Crockett to aggregate term of ten years of incarceration, with two years suspended. (ECF No. 15-4, at 1; ECF No. 15-6, at 1.)

         Crockett appealed his involuntary manslaughter conviction to the Court of Appeals of Virginia. See Crockett v. Commonwealth, No. 0119-13-1, 2014 WL 3510715, at *1 (Va. Ct. App. July 15, 2014). Crockett argued that the Circuit Court “erred in denying his motion for a new trial on the basis of newly discovered evidence and in denying his motion based upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).” Id. On July 15, 2014, the Court of Appeals of Virginia affirmed the Circuit Court's rulings, holding that the Circuit Court “did not err in its several rulings on the motions for a new trial and the defendant's challenge based upon Batson.” Id. at *4. Specifically, the Court of Appeals of Virginia found:

The charge arose on December 28, 2008 when a car slammed into a tree in the 2100 block of Wolfsnare Road, Virginia Beach, killing Korte, who was in the front passenger seat. The defendant was also found in the car. Numerous residents of that area heard the sounds as the car slid out of control and struck the tree, but Pamela Patrick, Antoine Smith, and James Reid were the primary witnesses. They described seeing the car speed down Wolfsnare Road, lose control, and wreck. They explained what they observed about the car and its occupants immediately after impact. The police arrived at the scene about ninety seconds after the wreck.
The Commonwealth maintained the defendant was the driver and the only other person in the car. The defendant maintained a third person, Jacob Palmer, was the driver and fled from the wreck without being seen by anyone at the accident scene. The factual issue at trial was the identity of the driver.
The defendant's motion for a new trial was based on a claim of three instances of newly discovered evidence: expert evidence that the driver was wearing a seatbelt; allegedly exculpatory statements provided by the Commonwealth after the trial; and evidence of third party confessions. After argument by counsel, the trial court noted in summary that the motion presented two scenarios of after-discovered evidence: a new expert opinion about the seatbelt and evidence of inculpatory statements made by a third party. The trial judge found that the expert opinion about the seatbelt mechanism could have been secured for use at the trial in the exercise of reasonable diligence. The court ruled that the evidence provided by the new expert opinion could have been available at trial and therefore was not a basis for a new trial.
The trial court then took evidence on the claim that two witnesses heard Palmer state that he was the driver. It found that one witness denied hearing Palmer make such a statement and that the other witness'[s] statement was vague. The court found the testimony implicating another driver to be suspect and unlikely to result in a different outcome. The trial court ruled the proffered evidence would not produce an opposite result at a new trial and denied the motion for a new trial.
The defense argument, as it pertained to the statements provided by the Commonwealth after the trial, was incorporated primarily into the broad argument for a new trial based on after-discovered evidence. These statements were used in conjunction with the other two assertions of after-discovered evidence to show the three instances of after-discovered evidence cumulatively were sufficient to meet the requirements for a new trial. To the extent that the three statements provided by the Commonwealth could also be the basis for a claim for a new trial based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the trial court made no ruling. It did not decide if the statements were material or would have produced a different result had they been disclosed before trial.
In this appeal, the defendant first argues that the trial court erred in denying his motion for a new trial because the Commonwealth failed to disclose exculpatory evidence in a timely manner. The court made no ruling on the defendant's challenge to the extent it rested on a claim that the Commonwealth had violated Brady.
It is well settled that where the trial court does not rule on an objection, “there is no ruling for us to review on appeal.” Ohree v. Commonwealth, 26 Va.App. 299, 308, 494 S.E.2d 484, 489 (1998). In this case, the trial court did not rule on any Brady challenge, and counsel never sought such a ruling. “Hence, the objection was not saved for our consideration.” Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967).
In any case, the statements of Patrick, Smith, and Reid provided after the trial would not meet the Brady requirement of materiality. See Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374-75 (2006) (finding that a conviction is reversed only if the evidence was material in the sense that the suppression of it undermined the confidence in the outcome of the trial). The statements offered minor variations in the details in their testimony but did not touch on the issue in dispute: was someone other than the defendant driving.
In this appeal, the defendant next argues the trial court erred in denying his motion for a new trial based upon after-discovered evidence that the driver's seatbelt was used. In Hopkins v. Commonwealth, 20 Va.App. 242, 456 S.E.2d 147 (1995) (en banc), this Court held:
“The applicant bears the burden to establish that the evidence (1) appears to have been discovered subsequent to trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial.”
Id. at 249, 456 S.E.2d at 150 (quoting Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387 (1984)).
At all stages of this case, the defense was the defendant was not the driver. The defense had access to the car before defendant's trials. Prior to the sentencing hearing, the defendant obtained a new attorney and a new expert. The report prepared by the second expert only “suggests” that the driver's seatbelt was in use at the time of the accident. This opinion offered by the new expert could have been reached before trial by the exercise of reasonable diligence. The defendant had access to the car, and an expert examined it before his trial. The trial judge did not abuse his discretion in finding reasonable diligence would have produced the evidence and in denying a new trial based upon this after-discovered evidence.
In his third assignment of error, the defendant maintains the trial court erred in denying his motion for a new trial based upon evidence of a third party confession. The defendant contended that Palmer was the driver of the car. He maintained that two different witnesses overheard Palmer admit that he was the driver at the time of the wreck.
The defendant proffered that Shaun Hoover could testify that Palmer admitted to him that he was the driver of the car. However, at the hearing on the motion for a new trial, Hoover did not testify that Palmer drove the car. To the contrary, Hoover testified that Palmer never told him that he was driving the car. The second witness at the hearing on the motion, Elizabeth Wales, testified that she knew Palmer from Cox High School, which they both attended. She overheard Palmer say, “I just got free. I thought I killed them both.” Wales testified that Palmer also mentioned the name “Jack.” Wales did not come forward with her evidence until June 2012, and she was unsure if she overheard the conversation in 2010 or 2011. She only came forward after she saw a statement that the defendant's girlfriend posted on Facebook, which maintained the defendant had been wrongly convicted.
At the conclusion of the evidence on the motion, the trial judge was troubled by Hoover's testimony, found that Wales' testimony was vague at best, and determined that Wales' testimony would not produce a different result at another trial.
Trial counsel was aware of the defendant's contention that Palmer was the driver prior to trial. At trial, the defendant called witnesses who saw Korte, Palmer, and the defendant at a party before the wreck with the intent to show Palmer disappeared from the party for a period of time. Defense counsel and his investigator spoke to Palmer prior to trial but elected not to call Palmer as a witness. The trial judge heard Wales' testimony and observed her demeanor and determined that her testimony was vague and was unlikely to produce a different result in another trial. A review of the record shows that the trial judge did not abuse his discretion in ruling that the evidence was unlikely to produce an opposite result at another trial and in denying the motion for a new trial based upon after-discovered evidence.
In his last assignment of error, the defendant maintains the trial court erred in denying his motion based upon Batson because the Commonwealth used two peremptory strikes to remove two African-American women from the venire. The defendant argues the trial court erred by ruling that he failed to make a prima facie case of purposeful discrimination.
The Commonwealth struck two African-American women from the venire. There were a total of four or five African-Americans on the venire, and the defendant struck one African-American woman himself. The defendant objected, but he made no attempt at showing a pattern of discrimination. He stated simply that striking the two African-American women established a pattern. The trial judge found that there was no pattern of discrimination and overruled the defendant's objection.
“The fact that the prosecution has excluded African-Americans by using peremptory strikes does not itself establish such a prima facie case under Batson. A defendant also must identify facts and circumstances that raise an inference that potential jurors were excluded based on their race.” Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780-81 (2000) (citations omitted); see Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d 383, 412 (2006); Yarbrough v. Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 309 (2001).
The fact the Commonwealth excluded African-Americans by using peremptory strikes did not establish a prima facie case of racial discrimination. The defendant made no attempt to identify facts and circumstances that would raise the inference that the Commonwealth struck the two females based upon their race. There is no evidence of purposeful discrimination by the Commonwealth in the jury selection process. Thus, the record supports the trial court's ruling that the defendant failed to make a prima facie showing of purposeful discrimination under Batson.

Id. at *1-4. Crockett then filed a petition for rehearing en banc, and the Court of Appeals of Virginia denied the petition on August 12, 2014. (ECF No. 15-7, at 1.)

         Crockett appealed to the Supreme Court of Virginia, and on April 7, 2015, the Supreme Court of Virginia refused the petition for appeal. (ECF No. 15-8, at 1.) The Supreme Court of Virginia denied Crockett's petition for rehearing on October 15, 2015. (ECF No. 15-9, at 1.) Crockett then appealed to the United States Supreme Court, and on February 29, 2016, the United States Supreme Court denied his petition for a writ of certiorari. (ECF No. 15-10, at 1.)

         On April 2, 2016, Crockett filed a petition for a writ of habeas corpus in the Circuit Court. (ECF No. 15-11, at 1-66; see ECF No. 15-13, at 3.) On August 22, 2016, the Circuit Court denied and dismissed Crockett's petition for a writ of habeas corpus. (ECF No. 15-13, at 34.) In denying Crockett's petition for a writ of habeas corpus, the Circuit Court summarized Crockett's claims as follows:

I(A). Crockett alleges a substantive violation of his constitutional privilege against self-incrimination;
I(B). Counsel is alleged to have rendered ineffective assistance in failing to adequately investigate and present a motion to suppress the petitioner's statements on the basis that his constitutional privilege against self-incrimination was violated;
II(A). Petitioner mounts a substantive attack upon the voluntariness of his confession;
II(B). Counsel is alleged to have rendered ineffective assistance in failing to adequately investigate and present a motion to suppress the petitioner's statements on the basis that his statement to law enforcement was not voluntarily given;
III. Counsel is alleged to have rendered ineffective assistance in failing to adequately investigate and present evidence related to the driver's seatbelt mechanism;
IV. Counsel failed to interview Jacob Palmer and Tori Miranda, and failed to present testimony at trial from Palmer, Miranda, and Nicole Vaughan;
V(A). Petitioner maintains the prosecution withheld material, exculpatory evidence or that which would be of benefit for impeachment purposes from the defense;
V(B). Counsel rendered ineffective assistance in failing to preserve for appellate review the petitioner's substantive argument in reference to the alleged withholding of material, exculpatory evidence or that which would be of benefit for impeachment purposes;
VI. The petitioner asserts a substantive claim alleging his actual innocence of the offense of involuntary manslaughter;
VII. The petitioner raises a claim of cumulative prejudice resulting from his collective individual claims of ineffective assistance of counsel;
VIII. The petitioner contends that the prejudice inherent in the alleged nondisclosures of the prosecution coupled with the claimed inadequacies of counsel served to prejudice him at trial.

(Id. at 3-4.) Crockett appealed the Circuit Court's denial of his petition for a writ of habeas corpus to the Supreme Court of Virginia. (See ECF No. 15-14.) The Supreme Court of Virginia affirmed the Circuit Court's decision, “albeit for a different reason, ” holding that “although the circuit court correctly denied and dismissed Crockett's petition, the court relied on the wrong reasons for dismissing claims I(B), II(B), and III, which [were] the subject of Assignments of Error 1, 2 and 6.” (Id. at 2.)

         On February 28, 2018, Crockett timely filed the instant § 2254 Petition. (§ 2254 Pet. 1; ECF No. 15 at 5.) When Crockett filed his § 2254 Petition, he also filed a Motion for Discovery (ECF No. 1-1, at 142-152) and attached proposed Interrogatories (ECF No. 1-1, at 153-156). Subsequently, on April 6, 2018, Crockett filed his Amendment to § 2254 Petition, which contains present Claim Eight. (Amendment to § 2254 Pet. 1.) On April 6, 2018, Crockett also filed a Supplemental Motion for Discovery (ECF No. 7) and a Motion for Evidentiary Hearing on Claim Eight (ECF No. 8). Subsequently, Crockett filed a Motion for Evidentiary Hearing on Claims One and Two. (ECF No. 19, at 2-3.) Crockett also filed an “Objection to Referral of Case to Staff Attorney and Motion to Return Case to the Magistrate Judge or District Judge” (“Objection and Motion to Return Case, ” ECF No. 24).

         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).[4] 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).

         Respondent moves to dismiss Crockett's Claims Three, Four, Five, and Eight, arguing, inter alia, that these claims are defaulted and barred from review here. (ECF No. 15, at 6-14.) The Court addresses each claim in turn.

         In Claim Three, Crockett contends that his “Miranda rights were violated when police interrogated him in a custodial setting without advising him of his rights against self-incrimination.” (§ 2254 Pet. 8.) In Claim Four, Crockett contends that his “statements to police were involuntary.” (Id. at 10.) In Crockett's state habeas petition, Claim Three was presented as Claim I(A) and Claim Four was presented as Claim II(A). (ECF 15-11, at 21, 26; ECF No. 15- 13, at 3.) The Circuit Court denied and dismissed Claim I(A), holding that pursuant to the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), “a claim of this nature may not be raised for the first time in habeas corpus review.” (ECF No. 15-13, at 5.) Similarly, the Circuit Court denied and dismissed Claim II(A), holding that Crockett could not raise such a claim “for the first time in habeas corpus review pursuant to the rule of Parrigan.” (Id. at 6.) The Supreme Court of Virginia affirmed the Circuit Court's denial and dismissal of these claims. (ECF No. 15-14, at 2, 8.) The rule in Slayton v. Parrigan constitutes an adequate and independent state procedural rule when so applied. See Clagett v. Angelone, 209 F.3d 370, 379 (4th Cir. 2000); Mu'Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Thus, Claims Three and Four are defaulted.

         In Claim Five, Crockett argues that the Commonwealth suppressed exculpatory statements in violation of Brady v. Maryland. (§ 2254 Pet. 12.) Crockett presented this claim as Claim V(A) in his state habeas petition. (ECF No. 15-13, at 3.) The Circuit Court denied and dismissed Claim V(A), concluding, inter alia, that one portion of the claim had been raised on direct appeal and could not be raised again in habeas corpus review because the Court of Appeals of Virginia had concluded that Crockett had failed to present his Brady challenge to the Circuit Court and “where the trial court does not rule on an objection, ‘there is no ruling for [the Court of Appeals of Virginia] to review on appeal.'” (ECF No. 15-13, at 6-7 (citing Crockett, 2014 WL 3510715, at *2)); see Va. Sup. Ct. 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, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”). With respect to the second portion of Claim V(A), the Circuit Court concluded that Slayton barred this portion of the claim, and Crockett could not raise the claim for the first time in habeas corpus review. (ECF No. 15-13, at 8.) The Supreme Court of Virginia affirmed the Circuit Court's denial and dismissal of this claim. (ECF No. 15-14, at 2, 8.) With respect to the first portion of the claim, Virginia Supreme Court Rule 5A:18 governs appeals to the Court of Appeals of Virginia and is “‘virtually identical' to [Supreme Court of Virginia] Rule 5:25, ” which “constitutes ‘an independent and adequate state procedural bar precluding [habeas] review of errors [not raised] at trial.'” Kent v. Kuplinski, 702 Fed.Appx. 167, 169 (4th Cir. 2017) (alterations in original) (citations omitted). Similarly, as discussed above, the rule in Slayton constitutes an adequate and independent state procedural rule when so applied. See Clagett, 209 F.3d at 379; Mu'Min, 125 F.3d at 196-97. Therefore, Claim Five is also defaulted.[5]

         In Claim Eight, Crockett contends that the “prosecuting attorney harbored a conflict of interest that violated his federal constitutional right to a fair trial by an impartial prosecution.” (Amendment to § 2254 Pet. 5.) Crockett failed to raise this claim in his state habeas petition. (See ECF No. 15-11, at 1-66.) If Crockett now attempted to raise Claim Eight in a state habeas petition, it would be barred as successive pursuant to Va. Code. Ann. § 8.01-654(B)(2). The bar on successive petitions, which is set forth in Va. Code Ann. § 8.01-654(B)(2), constitutes an adequate and independent state procedural rule when so applied. See Clagett, 209 F.3d at 379; Mu'Min, 125 F.3d at 196-97. Thus, Claim Eight is defaulted.

         Crockett concedes that Claims Five and Eight are defaulted. (ECF No. 19, at 6.) However, Crockett argues that Claims Three and Four are not defaulted because “the Supreme Court of Virginia clearly addressed and ruled on the merits of the Miranda and the voluntariness challenges when it dealt with the prejudice prongs of the interrelated claims that counsel was ineffective for failing to pursue those challenges.” (Id. at 79.)

         The Supreme Court of Virginia affirmed the Circuit Court's decision denying and dismissing Crockett's state habeas petition “albeit for a different reason, ” explaining that “although the circuit court correctly denied and dismissed Crockett's petition, the court relied on the wrong reasons for dismissing claims I(B), II(B), and III.” (ECF No. 15-14, at 2.) Claims Three and Four were presented as Claims I(A) and II(A), respectively, in Crockett's state habeas petition. (See ECF No. 15-13, at 3.) Contrary to Crockett's assertion that the Supreme Court of Virginia “ruled on the merits” of Claims Three and Four, the Supreme Court of Virginia's decision addressed only the Circuit Court's reasoning for Claims I(B), II(B), and III - all of which were ineffective assistance of counsel claims - and the Supreme Court of Virginia did not find any error in the Circuit Court's reasoning for denying and dismissing Claims I(A) and II(A), which are presented as Claims Three and Four here. Nevertheless, because Crockett presents a claim of actual innocence in Claim One, and because subscribing to Crockett'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, Crockett contends that he “is actually innocent.” (§ 2254 Pet. 5.) Crockett describes this claim as “‘freestanding' within [the] meaning of Herrera v. Collins, 516 U.S. 390 (1993)[].” (Id.) As an initial matter, it is unclear whether habeas petitioners may raise freestanding actual innocence claims.[6] See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (citation omitted) (“[The Supreme Court] [has] not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”). Nevertheless, “[c]laims of actual innocence, whether presented as freestanding ones, or merely as gateways to excuse a procedural default, should not be granted casually.” Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (citations omitted). Further, the Supreme Court has “described the threshold for any hypothetical freestanding innocence claim as ‘extraordinarily high.'” House v. Bell, 547 U.S. 518, 555 (2006) (quoting Herrera, 506 U.S. at 417 (finding that “whatever burden a hypothetical freestanding innocence claim would require, ” even a petitioner who “cast considerable doubt on his guilt--doubt sufficient to satisfy Schlup's[7] gateway standard for obtaining federal review despite a state procedural default, ” would likely not satisfy it); Teleguz v. Pearson, 689 F.3d 322, 328 n.2 (4th Cir. 2012) (accord).

         Here, the Court reviews Crockett's arguments under the more lenient standard for gateway actual innocence claims, because if Crockett satisfies this standard, the Court would be permitted to consider the merits of his otherwise procedurally defaulted claims. Even under the more lenient standard for gateway actual innocence claims, Crockett may obtain review of his claims “only if he falls within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.'” Schlup, 513 U.S. at 314-15 (alteration in original) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). See also Teleguz, 689 F.3d at 328 n.2 (“A petitioner seeking to address procedurally defaulted claims under Schlup must meet a less-stringent-though nevertheless rigorous standard than a petitioner who seeks relief on the basis of innocence alone.”) (internal quotation and citation omitted).

         “A valid actual innocence claim ‘requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Finch v. McKoy, 914 F.3d 292, 298 (4th Cir. 2019) (quoting Schlup, 513 U.S. at 324). “Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324. If a petitioner meets the burden of producing new, truly reliable evidence of his or her innocence, the Court then considers “‘all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under ‘rules of admissibility that would govern at trial, '” and determines whether the petitioner has met the standard for a gateway claim of innocence. House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327-28). The Court must then determine whether “it is more likely than not that the totality of the evidence would prevent any reasonable juror from finding him guilty beyond a reasonable doubt.” Finch, 914 F.3d at 299 (internal quotation and citation omitted). “The Court need not proceed to this second step of the inquiry unless the petitioner first supports his or her claim with evidence of the requisite quality.” Hill v. Johnson, No. 3:09CV659, 2010 WL 5476755, at *5 (E.D. Va. Dec. 30, 2010) (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997); Feaster v. Beshears, 56 F.Supp.2d 600, 610 (D. Md. 1999)).

         Moreover, “actual innocence” means factual innocence and not just legal insufficiency. See Calderon v. Thompson, 523 U.S. 538, 559 (1998) (alteration in original) (citations and internal quotation marks omitted) (“[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.”). Furthermore, with respect to claims of actual innocence,

The Supreme Court has instructed that, “when considering an actual-innocence claim in the context of a request for an evidentiary hearing, the District Court need not ‘test the new evidence by a standard appropriate for deciding a motion for summary judgment,' but rather may ‘consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.'”

Carter v. Commonwealth of Va., No. 3:09CV121-HEH, 2010 WL 331758, at *4 (E.D. Va. Jan. 26, 2010) (quoting House, 547 U.S. at 537).

         A. Summary of the Evidence Presented at Trial

         The jury heard the testimony from the following thirty-one individuals at trial: John Korte, Sr., Antoine Smith, Pamela Patrick, James Reid, William Daniels, Holly Dickson, Kolden Dickson, Kenneth Buechner, Paul Bradley, James Dickey, George Marino, Fitz Wallace, Samantha Wetzler, Les Edinboro, Steven Powell, William Pritchard, Erick Smith, Thomas Kellogg, Jeff Menago, Forrest Godwin, Kevin Kelly, Karlene Carkhuff, Robert Bagnell, Joshua Reddy, Ammerrell Barretto, Beth Coulling, Christopher Maples, Reuben Koller, Helen Gornto, Will Von Stein, and Crockett.

         1. Evidence Presented by the Commonwealth of Crockett's Guilt

         With respect to the evidence against Crockett that was introduced at trial, overwhelming evidence existed to support the jury's verdict.

         First, John Korte, Sr., testified that he was the father of the victim, Jack Korte. (Feb. 28, 2012 Tr. 247.) Mr. Korte testified that Jack was living at home on December 28, 2008, and on that day, Jack left the house at 9:00 p.m. (Feb. 28, 2012 Tr. 248-49.) Mr. Korte indicated that that was the last time he saw Jack alive. (Feb. 28, 2012 Tr. 249.)

         Next, Antoine Smith testified that on December 28, 2008, she was walking on Wolfsnare Road and her attention was drawn by a “house that had this very elaborate Christmas decorations and music.” (Feb. 28, 2012 Tr. 256-57.) Ms. Smith testified that “[she] saw the light turn green up on the top of Wolfsnare, and [she] heard this car like accelerating as it was coming down the hill.” (Feb. 28, 2012 Tr. 257.) Ms. Smith also testified that the vehicle “came down the hill and like it slammed on brakes, ” and “[t]he car sp[un] maybe three -- two to three times.” (Feb. 28, 2012 Tr. 257.) Further, Ms. Smith testified that the car went in between two parked cars, “turned sideways, and hit the tree.” (Feb. 28, 2012 Tr. 257-58.) She stated after the car hit the tree, “neighbors ran outside.” (Feb. 28, 2012 Tr. 258.) When asked if she saw anyone get out of the car, Ms. Smith responded: “No, I did not.” (Feb. 28, 2012 Tr. 259.)

         Pamela Patrick testified that she lived on Wolfsnare Road, and that she had lived at the same address on Wolfsnare Road for twelve years. (Feb. 28, 2012 Tr. 276-77.) Ms. Patrick testified that on December 28, 2008, at approximately 11:00 p.m. or 11:15 p.m., she was at home and “was sitting at [her] computer.” (Feb. 28, 2012 Tr. 277.) Ms. Patrick stated that she heard a “really loud noise” and then she “went to the front door to look.” (Feb. 28, 2012 Tr. 279.) Ms. Patrick stated that she then went outside and looked to see “where the noise was coming from.” (Feb. 28, 2012 Tr. 280.) Ms. Patrick “saw a car sliding sideways going really fast.” (Feb. 28, 2012 Tr. 280.) As the car was sliding sideways, Ms. Patrick thought that the car “was going to hit something, ” and she “told [her] kids to call 911.” (Feb. 28, 2012 Tr. 281.) Ms. Patrick then heard the impact of the vehicle. (Feb. 28, 2012 Tr. 282.) Ms. Patrick did not immediately see what the car had hit; instead, she first saw a woman on the sidewalk looking across the street. (Feb. 28, 2012 Tr. 282.) Ms. Patrick then also looked across the street and saw the car “up against the tree.” (Feb. 28, 2012 Tr. 282.) Ms. Patrick testified that once she saw the vehicle in the front yard across the street, “[she] went across the street. [Her] son was on the phone to 911, and they were asking how many people were in the car; and [she] was across the street and touched the leg of the boy who was in the front -- in the front window.” (Feb. 28, 2012 Tr. 284.)

         When asked if “once [she] located the vehicle, ” she “rush[ed] to the car, ” Ms. Patrick responded: “Yes, I went there. Yes.” (Feb. 28, 2012 Tr. 284.) Ms. Patrick explained that she was “[w]alking quickly” to the car. (Feb. 28, 2012 Tr. 284.) When asked if she saw anyone get out of the car, Ms. Patrick stated: “No.” (Feb. 28, 2012 Tr. 284.) With respect to the person or persons Ms. Patrick saw in the vehicle, Ms. Patrick stated that she was able to see only one person and the way that person's “legs were laying, . . . they were on top of the driver's seat because they were right in the window.” (Feb. 28, 2012 Tr. 286.) Ms. Patrick also testified that “[h]e was curved around and his -- the upper part of his body was in the rear window.” (Feb. 28, 2012 Tr. 308.) When asked if the person's legs were down in the pedal area of the driver's seat, she responded: “No.” (Feb. 28, 2012 Tr. 309.) When asked how long it took for the police to arrive at the scene, Ms. Patrick stated that it was “[a] minute or two” after she had been at the car. (Feb. 28, 2012 Tr. 287.) When asked if she had given “information to 911 in which [she] described the person that [she] saw with the legs at the window and curved in the back window as the one in the backseat, ” Ms. Patrick testified that she would not deny saying that, but she did not remember the conversation. (Feb. 28, 2012 Tr. 311-13.)

         James Reid testified that on December 28, 2008, he lived on Wolfsnare Road. (Feb. 28, 2012 Tr. 321.) Mr. Reid testified that he was “[j]ust about getting ready for bed, ” and he heard screeching tires. (Feb. 28, 2012 Tr. 322.) Mr. Reid stated that he heard “the screeching and then the slam, ” and about “thirty, thirty-five seconds” after hearing the slam, he got to the car. (Feb. 28, 2012 Tr. 323.) When asked if he had previously testified that the amount of time that had passed before he got to the car was “a minute and five seconds, ” Mr. Reid stated: “I can't recall; but if that's what I said, I guess I said that.” (Feb. 28, 2012 Tr. 329.) When asked whether he could see the car as he was going outside, he stated: “No. No, I could not directly see the car; but I could see where, you know, the -- where it was -- the area where it was located.” (Feb. 28, 2012 Tr. 323-24.) When asked what he saw when he arrived at the car, Mr. Reid stated that he saw “[a] car upside a tree, it was heavily damaged, and [he] saw a gentleman in the -- in the car.” (Feb. 28, 2012 Tr. 324.)

         As to the position of the person that he saw in the car, Mr. Reid stated: “When I came up to the car, the driver's seat was smashed all the way down, and he was in the backseat facing upward.” (Feb. 28, 2012 Tr. 324.) Mr. Reid also stated that “roughly about his whole body” was in the backseat. (Feb. 28, 2012 Tr. 324.) When asked if any portion of the person's body was not in the backseat, Mr. Reid stated: “That would be his feet, some of his feet, you know, up on top of the seat laid back, up that way that I recall.” (Feb. 28, 2012 Tr. 324.) When asked if he was referring to “the front seat laid back, ” Mr. Reid responded: “Yes, ma'am.” (Feb. 28, 2012 Tr. 325.) When asked if he recalled seeing his neighbor, Ms. Patrick, at the car, he stated: “I don't recall seeing her.” (Feb. 28, 2012 Tr. 326.) When asked about the lighting in the area, Mr. Reid stated that the lighting is “[h]orrible.” (Feb. 28, 2012 Tr. 328.)

         William Daniels testified that on December 28, 2008, he was living on Wolfsnare Road. (Feb. 28, 2012 Tr. 340.) Mr. Daniels stated that at that time he was living with “Kolden and Holly Dickson.” (Feb. 28, 2012 Tr. 341.) Mr. Daniels stated that just before the accident, “Holly was asleep, and Kolden and [Mr. Daniels] were both on [their] computers” in the living room, which is in the front of the house. (Feb. 28, 2012 Tr. 341.) Mr. Daniels heard “[a] long screech” and “then it sounded like an airplane crash in the front yard.” (Feb. 28, 2012 Tr. 341.) Mr. Daniels stated that he looked for his keys because he thought someone may have hit his car, and then when he got outside, he saw a “white car” that “appeared to be wrapped around a tree.” (Feb. 28, 2012 Tr. 342.) When asked about the position of the person's body that he saw on the driver's side of the car, Mr. Daniels stated that it was “[f]lat like on the -- between the front seat and the backseat.” (Feb. 28, 2012 Tr. 344.) Mr. Daniels also stated that “[t]he legs” were in the front seat. (Feb. 28, 2012 Tr. 344.) Mr. Daniels did not see the person wearing a seatbelt. (Feb. 28, 2012 Tr. 351.) When asked how much time had passed between the impact and when Mr. Daniels was “out the door, ” Mr. Daniels responded: “Within thirty seconds. I mean, we were about to go to the store, you know. I had to put my shoes on; but, I mean, other than that, you know, I went out, told my buddy, I said, Hey, call 911, he called 911, and we went out.” (Feb. 28, 2012 Tr. 345.) When asked if he saw anyone run away from the area, Mr. Daniels stated: “No, ma'am.” (Feb. 28, 2012 Tr. 346.) When asked if anyone was at the vehicle from the neighborhood when he went outside, Mr. Daniels indicated that his neighbor, James Reid, was there. (Feb. 28, 2012 Tr. 354.)

         Holly Dickson testified that on December 28, 2008, she lived on Wolfsnare Road. (Feb. 28, 2012 Tr. 356.) Ms. Dickson testified that prior to the accident, she was asleep, and the “loud screeching noise” drew her attention. (Feb. 28, 2012 Tr. 357.) Ms. Dickson testified that she then “jumped out of bed and came down the hall, ” and “heard [her] husband on the phone with 911.” (Feb. 28, 2012 Tr. 357.) Ms. Dickson then “stepped outside” and saw “a car wrapped around a tree in [her] front yard.” (Feb. 28, 2012 Tr. 357.) Ms. Dickson stated that “[she] immediately walked up to the car, ” and saw a person “laying across the vehicle and he appeared to be passed out.” (Feb. 28, 2012 Tr. 358.) Ms. Dickson described the position of this individual's body as follows: “His feet were roundabout where the steering wheel would be[, ]” and “his body was across the driver's seat, and his arm was back touching the back of -- behind the backseat.” (Feb. 28, 2012 Tr. 358.) When asked how much time had passed between the time she heard the loud noise and when she went outside, Ms. Dickson stated: “A minute, two minutes.” (Feb. 28, 2012 Tr. 359.) Ms. Dickson testified that James Reid was at the car when she went outside. (Feb. 28, 2012 Tr. 361.)

         Kolden Dickson testified that on December 28, 2008, he lived on Wolfsnare Road. (Feb. 28, 2012 Tr. 365.) Mr. Dickson testified that prior to the accident, he was in the living room, which is at the front of the house, “[l]ooking at Facebook on the computer.” (Feb. 28, 2012 Tr. 365.) Mr. Dickson stated that “the sound of tires screeching down the street for several seconds” drew his attention, and “[he] thought there was an accident about to happen.” (Feb. 28, 2012 Tr. 366.) Mr. Dickson testified that after he heard the impact, he looked outside and saw “a car wrapped around a tree in [his] front yard.” (Feb. 28, 2012 Tr. 366.) When asked if he saw anyone get out of the car or walk away from the car, Mr. Dickson stated: “No, ma'am.” (Feb. 28, 2012 Tr. 367.) When asked how much time had passed between when he saw the car and when he went outside to the car, Mr. Dickson stated: “Two to four minutes.” (Feb. 28, 2012 Tr. 367.)

         Mr. Dickson testified that he “saw someone laying there on top of the driver's seat.” (Feb. 28, 2012 Tr. 368.) Mr. Dickson also testified that “[t]he headrest would be about middle back and the rest of their lower body was on the driver's seat[, ]” and “the seat . . . looked like it had just flattened out in the wreck.” (Feb. 28, 2012 Tr. 368.) When asked if Mr. Dickson knew what had happened in the car between the first time he looked outside until the time he went outside to the car, he responded that he did not. (Feb. 28, 2012 Tr. 374.) When asked if there is a wooded area behind his house and the other houses in the area, he responded that “[i]t's about a hundred yards between [his] house and the initial edge of the woods.” (Feb. 28, 2012 Tr. 374-75.)

         Next, Officer Kenneth Buechner testified. (Feb. 28, 2012 Tr. 382.) Officer Buechner testified that he works as a police officer with the Virginia Beach Police Department. (Feb. 28, 2012 Tr. 383.) Officer Buechner testified that on December 28, 2008, he was dispatched to a single-vehicle accident with injuries on Wolfsnare Road. (Feb. 28, 2012 Tr. 383.) Officer Buechner testified that when he arrived at the scene, he saw “a white vehicle that had struck a tree on the passenger side of the vehicle.” (Feb. 28, 2012 Tr. 384.)

         Officer Buechner stated that when he arrived at the vehicle, it initially appeared that there was one person in the vehicle, but upon closer inspection, “there were two.” (Feb. 28, 2012 Tr. 388.) Officer Buechner testified that “[he] dealt with Mr. Crockett first.” (Feb. 28, 2012 Tr. 388.) With respect to Mr. Crockett's position in the vehicle, Officer Buechner testified that “[h]e was on what remained of the driver's side of the vehicle in the front seat[, ]” “[h]is feet were under the steering wheel[, ] [and] [h]is waist was where the center console would be.” (Feb. 28, 2012 Tr. 389.) Officer Buechner stated that “[t]he seat had broken. He wasn't in what would be considered a seated position in the seat, but he was still in the area.” (Feb. 28, 2012 Tr. 389- 90.) Officer Buechner also stated that Mr. Crockett's head was in the rear part of the vehicle. (Feb. 28, 2012 Tr. 401.) Officer Buechner testified that as he was dealing with Mr. Crockett, “[t]here was a strong odor of alcoholic beverage coming from the car.” (Feb. 28, 2012 Tr. 393.) When asked if Officer Buechner observed Mr. Crockett wearing a seatbelt, Officer Buechner stated: “I don't recall one.” (Feb. 28, 2012 Tr. 398.) Officer Buechner testified that Mr. Crockett was initially unconscious, and as Mr. Crockett regained consciousness, he started to move around in the vehicle. (Feb. 28, 2012 Tr. 390.)

         Officer Paul Bradley testified that he works as a police officer with the Virginia Beach Police Department. (Feb. 28, 2012 Tr. 411-12.) Officer Bradley testified that on December 28, 2008, he responded to an accident on Wolfsnare Road. (Feb. 28, 2012 Tr. 412.) Officer Bradley testified that as he was responding to the accident, he did not see anyone running or walking down the street. (Feb. 28, 2012 Tr. 413.) When Officer Bradley arrived at the scene, he went to the driver's side of the vehicle “to assist [and] render aid, ” and he saw a person in the driver's seat “actively struggling against the other officers that were already on scene.” (Feb. 28, 2012 Tr. 414.) Officer Bradley testified that as the person on the driver's side was moving around, he saw that there was “a person in the passenger area of the vehicle. So instead of rendering aid to the person that was in the driver area, [he] tried to render aid to the person in the passenger area.” (Feb. 28, 2012 Tr. 414-15.) Officer Bradley testified that the person in the passenger area “had some involuntary like eye and mouth movements, but he was not responsive.” (Feb. 28, 2012 Tr. 417.) Officer Bradley also testified that “[i]t was close to the time that rescue had arrived is when [the involuntary movements] all stopped.” (Feb. 28, 2012 Tr. 417.) As to the position of the person's body on the driver's side, Officer Bradley testified that “his legs were in the front driver area of the vehicle, ” and the “top part” of his body was in the rear seat. (Feb. 28, 2012 Tr. 420-21.)

         James Dickey testified that he works as a paramedic with the City of Virginia Beach, and that he was working as a paramedic on December 28, 2008. (Feb. 28, 2012 Tr. 443-44.) Mr. Dickey testified that when he arrived at the accident scene, he went around the vehicle to check for a pulse on the individual he later learned was named Jack, and when “[he] checked for a pulse inside of the neck, carotid, there was no pulse.” (Feb. 28, 2012 Tr. 445-46.) When asked if Mr. Crockett consumed any alcohol at the scene of the accident, Mr. Dickey stated: “Not in front of me.” (Feb. 28, 2012 Tr. 447.) When asked about the position of the person on the driver's side of the vehicle, Mr. Dickey agreed that “[t]o the best of [his] recollection” that person's legs were “over the top of the back of the front seat.” (Feb. 28, 2012 Tr. 450.) When asked if the person on the driver's side of the vehicle was wearing a seatbelt, Mr. Dickey stated that when he was on the scene, the person was not wearing a seatbelt. (Feb. 28, 2012 Tr. 452.)

         George Marino testified that on December 28, 2008, he was employed with the Virginia Beach Fire Department. (Feb. 28, 2012 Tr. 455.) Mr. Marino testified that when he arrived at the accident scene, his responsibility was extrication. (Feb. 28, 2012 Tr. 456.) Mr. Marino stated that as to the person on the passenger side of the vehicle, Jack Korte, there were no extrication methods taken at the scene “[b]ecause he was pronounced dead by the EMS worker.” (Feb. 28, 2012 Tr. 456-57.) Mr. Marino stated that the vehicle was taken “[t]o the fire station” for extrication. (Feb. 28, 2012 Tr. 457.) Mr. Marino testified that the extrication took “longer than what it normally takes.” (Feb. 28, 2012 Tr. 458.) Mr. Marino stated:

We had to remove the roof of the vehicle, cut the A, B, and C posts. We had the dash row pulled forward. We had to remove quite a bit of things inside the vehicle. The front seat and the dash were rolled over on top of him, so we had to actually physically pull him out from the wreckage.

(Feb. 28, 2012 Tr. 458.) When asked the position of the deceased individual, Mr. Marino stated: “He was on the passenger side.” (Feb. 28, 2012 Tr. 458-59.) When asked if the passenger was wearing a seatbelt, Mr. Marino indicated that he did “not recall.” (Feb. 28, 2012 Tr. 464.)

         Officer Fitz Wallace testified that he works as a police officer with the Virginia Beach Police Department. (Feb. 28, 2012 Tr. 466.) Officer Wallace stated that he first came in contact with Crockett “[a]t Sentara Virginia Beach General Hospital Emergency Room” on December 28, 2008. (Feb. 28, 2012 Tr. 466.) Officer Wallace testified that when he saw Crockett, “[t]hey had cut his clothes away, ” and “the only thing that he had on was a pair of boxers.” (Feb. 28, 2012 Tr. 467.) Officer Wallace also testified that he “noticed [Crockett] had a strong odor of alcoholic beverage on his breath.” (Feb. 28, 2012 Tr. 468.) Officer Wallace indicated that he spoke with Crockett about whether Crockett had consumed any alcohol that evening, and Crockett told Officer Wallace that “he had drank a forty.” (Feb. 28, 2012 Tr. 469.) Officer Wallace testified that he spoke with Crockett regarding his involvement in a traffic accident, and that “[Crockett] said he didn't know anything about a traffic accident. He said he knew something about a traffic incident.” (Feb. 28, 2012 Tr. 470.) When Officer Wallace asked Crockett what kind of car he drove, Crockett indicated that he drove a “1998 Honda Accord.” (Feb. 28, 2012 Tr. 470.) When Officer Wallace asked if there was anything mechanically wrong with the vehicle prior to Crockett driving it that night, Crockett had “stated no.” (Feb. 28, 2012 Tr. 470.)

         Officer Wallace testified that he interviewed Crockett again, and at that time, he performed a series of field sobriety tests. (Feb. 28, 2012 Tr. 471.) After performing several field sobriety tests, Officer Wallace placed Crockett under arrest. (Feb. 28, 2012 Tr. 471-74.) Officer Wallace read Crockett his Miranda rights, and Crockett agreed to continue speaking with Officer Wallace. (Feb. 28, 2012 Tr. 474-75.) When Officer Wallace asked Crockett if there was anyone else in the vehicle with him, Crockett “stated no.” (Feb. 28, 2012 Tr. 475.) When Officer Wallace asked Crockett if he knew “who Jack was, ” Crockett indicated, “[t]hat's my friend.” (Feb. 28, 2012 Tr. 475.) Officer Wallace testified that he again asked if anyone else was in the car, and “[Crockett] continued to tell [him] no.” (Feb. 28, 2012 Tr. 476.) Officer Wallace testified that when he asked whether Jack Korte had been in the vehicle with Crockett, Crockett “said yes.” (Feb. 28, 2012 Tr. 476.) When Officer Wallace asked Crockett what he thought “Jack's condition was, ” Crockett stated that “[h]e should be in the same condition as [Crockett].” (Feb. 28, 2012 Tr. 476.) Officer Wallace told Crockett that Mr. Korte had not survived the accident, and Crockett responded “[t]hat figures.” (Feb. 28, 2012 Tr. 476.) When asked if Officer Wallace observed any injuries on Crockett's body that “would be consistent with him having been belted at the time of the accident or the time of impact, ” Officer Wallace indicated that he had not observe any such injuries. (Feb. 28, 2012 Tr. 491.)

         Dr. Samantha Wetzler testified that she works as “a medical examiner for the Commonwealth of Virginia.” (Feb. 28, 2012 Tr. 502-03.) Dr. Wetzler was qualified to testify as an expert in forensic pathology. (Feb. 28, 2012 Tr. 504.) Dr. Wetzler testified that she did not go to the crash scene because medical examiners do not go to the crash scene “unless [the police] think it's so confusing [she] wouldn't understand the injuries just by looking at the body.” (Feb. 28, 2012 Tr. 505.) Dr. Wetzler testified that based on her examination, as well as her medical training and expertise, she determined that the cause of death for Jack Korte was “blunt trauma to the head, the chest, and the pelvis status post motor vehicle accident.” (Feb. 28, 2012 Tr. 508.) Dr. Wetzler indicated that she recorded the personal effects that were with the body, and she did not find any money or other items in the pockets of the clothing that she received. (Feb. 28, 2012 Tr. 511.) When asked if the majority of the fatal injuries that Jack sustained were primarily on the right side, Dr. Wetzler stated: “Correct.” (Feb. 28, 2012 Tr. 511.)

         Dr. Les Edinboro testified that in December 2008 he worked as “the forensic toxicology supervisor for the Department of Forensic Science in Richmond, Virginia.” (Feb. 28, 2012 Tr. 519.) Dr. Edinboro was recognized as an expert in the field of forensic toxicology. (Feb. 28, 2012 Tr. 520.) Dr. Edinboro testified that Crockett's blood alcohol content was “somewhere between .14 percent and .15 percent.” (Feb. 28, 2018 Tr. 527.) Dr. Edinboro stated that he based this number on “a hospital blood draw.” (Feb. 28, 2012 Tr. 531.) When asked if “one forty-ounce beer a couple hours prior” would “equate to a .14 or .15 percent BAC, ” Dr. Edinboro stated: “It would not.” (Feb. 28, 2012 Tr. 527.) Dr. Edinboro explained: “That amount of alcohol was equivalent to the alcohol that would be in at least two and a half forty-ounce beers.” (Feb. 28, 2012 Tr. 528.)

         2. Crockett's Defense at Trial - A Third-Party Driver

         Steven Powell testified that he works as a private investigator. (Feb. 29, 2012 Tr. 552.) Mr. Powell stated that he had worked as a private investigator for twenty years, and that prior to working as a private investigator, he worked for twenty years with the Norfolk Police Department. (Feb. 29, 2012 Tr. 553.) Mr. Powell stated that John Hooker, Crockett's prior counsel, hired him. (Feb. 29, 2012 Tr. 554.) Mr. Powell testified that as part of his investigative duties in this case, he interviewed a number of witnesses, including Mr. Daniels. (Feb. 29, 2912 Tr. 554.) When Mr. Powell asked Mr. Daniels what he had seen when he got to the crashed vehicle, Mr. Daniels had “said there was one person in the front seat and one guy in the backseat.” (Feb. 29, 2012 Tr. 557.)

         William Pritchard testified that he works as “a licensed land surveyor in the Commonwealth of Virginia.” (Feb. 29, 2012 Tr. 560.) Mr. Pritchard was received as an expert in survey. (Feb. 29, 2012 Tr. 561.) Mr. Prichard testified that he had surveyed “certain areas of Wolfsnare Road to determine whether one could see a traffic light at the intersection of Great Neck and Wolfsnare from the point of 2125 Wolfsnare Road.” (Feb. 29, 2012 Tr. 561.) When asked if “from Cambridge Road [you can] see with the line of sight down to the stoplight at Great Neck and Wolfsnare, ” Mr. Pritchard responded: “No, sir.” (Feb. 29, 2012 Tr. 564.) Mr. Pritchard explained:

Well, it's just the curvature of the road where it's taking a left -- there is no line of sight from here to here because of all the buildup and everything, the trees -- the street is taking like a twenty-two degree bend turn to take about an eleven degree bend back. So it's what we call a reverse curve.

(Feb. 29, 2012 Tr. 565.)

         Erick Smith testified that he works with Mr. Pritchard, and he worked as the project manager for the survey of whether “a traffic light could be seen down at the intersection of Wolfsnare and Great Neck.” (Feb. 29, 2012 Tr. 571-72.) When asked about his confidence in the accuracy of the survey, Mr. Smith testified: “It is accurate to the standard -- the requirements from the [applicable standard].” (Feb. 29, 2012 Tr. 573.)

         Officer Thomas Kellogg testified that he works as a police officer with the City of Virginia Beach. (Feb. 29, 2012 Tr. 574.) Officer Kellogg testified that he worked as the lead investigator for the accident that occurred on Wolfsnare Road on December 28, 2008, which involved Crockett. (Feb. 29, 2012 Tr. 575.) Officer Kellogg was shown renderings of the accident path, and when asked if one of the renderings showed “the car coming eastbound down Wolfsnare Road beginning to make a veer over to the westbound lane, ” Officer Kellogg responded: “Yes.” (Feb. 29, 2012 Tr. 578-80.) When asked what the lines in one of the renderings were based on, Officer Kellogg stated: “Tire marks left from the car moving sideways. The vehicle actually goes over grass, over concrete of the driveway, back into the grass, and then comes to final resting against the tree.” (Feb. 29, 2012 Tr. 580-81.)

         Officer Jeff Menago testified that he works as a Master Police Officer with the City of Virginia Beach. (Feb. 29, 2012 Tr. 588.) Officer Menago testified that on December 28, 2008, he was assigned to the fatal accident crash team. (Feb. 29, 2012 Tr. 589.) Officer Menago stated that in terms of investigating the accident, “[he] operated the total station on the scene of that incident, ” which is “like an instrument, a theodolite data collector which shoots angles and distances to reproduce a scale diagram of the crash scene.” (Feb. 29, 2012 Tr. 590.) When asked if he knew what instructions were given to the forensics team as to their work at the scene of the accident, Officer Menago indicated that he did not, and that “[he] simply operated the theodolite.” (Feb. 29, 2012 Tr. 591.)

         Officer Forrest Godwin testified that he works as a police officer with the Virginia Beach Police Department. (Feb. 29, 2012 Tr. 593.) Officer Goodwin testified that on December 28, 2008, and December 29, 2008, he was assigned to the fatal crash team, and on these dates, he was involved in investigating a fatal accident on Wolfsnare Road. (Feb. 29, 2012 Tr. 593-94.) Officer Godwin stated that his role involved looking at the scene with Officer Kellogg and determining “what evidence there was to collect.” (Feb. 29, 2012 Tr. 594-95.) When asked if upon inspection of the scene, Officer Godwin observed that the driver side window was open, Officer Goodwin stated: “Yeah. The window was opened as you see it there [in the photograph].” (Feb. 29, 2012 Tr. 598.) Officer Godwin also testified that the photographs of the scene showed that the driver's side airbag had deployed from the steering wheel. (Feb. 29, 2012 Tr. 601.) Further, Officer Godwin testified that another photograph depicted “a jacket of some sort” behind the car. (Feb. 29, 2012 Tr. 603.) When asked if the “airbag was cut out of the car so that it could be potentially processed, ” Officer Godwin, stated: “I don't know. My personal knowledge[;] I don't know.” (Feb. 29, 2012 Tr. 605.)

         Kevin Kelly testified that he works as a forensic technician with the City of Virginia Beach. (Feb. 29, 2012 Tr. 608.) Mr. Kelly testified that on February 12, 2009, he was asked to remove the driver's side airbag from a 1998 Honda Accord in relation to an accident that occurred on December 28, 2008. (Feb. 29, 2012 Tr. 608-09.) Mr. Kelly testified that after he removed the airbag, he “sealed [the airbag] up, ” and “brought it to Property and Evidence and vouchered it.” (Feb. 29, 2012 Tr. 609.) When asked if he had received any instructions to have the airbag sent to the lab for testing, Mr. Kelly indicated that he had not been given such instructions. (Feb. 29, 2012 Tr. 609-10.) Mr. Kelly also testified that when he removed the airbag, the car had been, and was in, an open air parking lot. (Feb. 29, 2012 Tr. 615-16.)

         Karlene Carkhuff testified that she had known Crockett for “[a]pproximately thirteen to fifteen years.” (Feb. 29, 2012 Tr. 617-18.) Ms. Carkhuff testified that Crockett's mother, Gail, was “like [Ms. Carkhuff's] sister.” (Feb. 29, 2012 Tr. 619.) Ms. Carkhuff testified that on December 28, 2008, she was living in Maryland, but after she learned of the events of December 28, 2008, she came down to Virginia Beach. (Feb. 29, 2012 Tr. 618-19.) Ms. Carkhuff testified that on January 7, 2009, she and Ms. Crockett went to the police compound lot to recover property being held by the police. (Feb. 29, 2012 Tr. 619-20.) Ms. Carkhuff testified that she and Ms. Crockett went with Officer Kellogg to the vehicle on the compound lot, and she observed “a black wallet on the passenger seat rear of the car” and “a sweatshirt kind of rolled up like a pillow.” (Feb. 29, 2012 Tr. 623.) Ms. Carkuff also observed a beer bottle in the “[p]assenger side front.” (Feb. 29, 2012 Tr. 625.) Ms. Carkhuff stated that they “were not allowed to take anything from the inside of the cab of the vehicle, but [they] were allowed to take items that belonged to Cameron from the trunk, his personal effects, college books, karaoke mic. Basketball was in the car.” (Feb. 29, 2012 Tr. 625-26.) When asked if there was any money or change in the car or any “recently purchased goods, ” Ms. Carkhuff indicated that there were no such items in the car. (Feb. 29, 2012 Tr. 627.) When asked if Crockett was a cigarette smoker or whether he typically wore his seatbelt, Ms. Carkhuff responded, “Never, ” to both questions. (Feb. 29, 2012 Tr. 629.)

         Robert Bagnell testified that before he retired, he worked with the Portsmouth Police Department as a crime scene investigator for over fifteen years, and that before that position, he had worked as a detective in the military. (Feb. 29, 2012 Tr. 633-34.) Mr. Bagnell also testified that he had been “certified by the Department of Criminal Justice Services as a subject matter expert on dealing with crime scene investigation, evidence recovery, crime scene and forensic photography.” (Feb. 29, 2012 Tr. 635.) When asked “how an airbag is ordinarily processed at the scene, ” Mr. Bagnell stated:

The airbag would be -- is very, very important because it's a DNA --recovery for DNA. So you would take an airbag and you would preserve it in paper. I would also, if I had the ability to put a sheet of paper down, put the airbag on it, put a sheet of paper on top and roll it up in case there was any hairs and fibers from the activation on it. The airbag would then be in my sole care and custody, controlled. It would be packaged up and placed on a police voucher. And then it would be placed in Property and Evidence with request for a laboratory examination to go to the Department of Forensic Science Laboratory for testing for DNA to try to develop a DNA profile from it.

(Feb. 29, 2012 Tr. 639-40.) When asked at what point in time the airbag should be removed, Mr. Bagnell testified that it should be removed “[e]ither at the scene or very closely to the scene.” (Feb. 29, 2012 Tr. 640-41.) Mr. Bagnell also testified that he would “want to go to the hospital” and document any injuries sustained by, or particulate matter on, the person who is the suspected driver. (Feb. 29, 2012 Tr. 642.) Mr. Bagnell testified that as part of the initial crime scene investigation, “once that vehicle is secured and moved to a location that you can safely process it as a crime scene, it should be processed.” (Feb. 29, 2012 Tr. 643.) Mr. Bagnell explained that processing the crime scene means:

Any type of evidence that would be in there. If I had any open containers in it, I would take those for evidence. If fingerprint and DNA evidence, the steering wheel, the gearshift knobs, I would look at those to see if they were good for DNA. If they were good for DNA, I would maybe take a sample from that. We call it touch evidence. Perhaps a surface that was smooth, it would be more viable for recovery of latent fingerprints. I would process that for latent fingerprints.

(Feb. 29, 2012 Tr. 643-44.) Mr. Bagnell stated that he would “also be looking for any type of blood or body fluid from the activation of an airbag or the collision itself so [he] could take the blood or body fluids which would be good for DNA analysis and getting a DNA profile to be compared.” (Feb. 29, 2012 Tr. 644.) When asked if he had any knowledge about what the officers knew when they responded to the accident scene, such as any statements by the defendant or statements from eyewitnesses, Mr. Bagnell indicated that he did not. (Feb. 29, 2012 Tr. 648-49.)

         Joshua Reddy testified that on December 28, 2008, he was living with Kevin Rondorff in an apartment “[i]n Bancroft Hall” in Virginia Beach. (Feb. 29, 2012 Tr. 652, 654-55.) Mr. Reddy testified that on December 28, 2008, he and Mr. Rondorff hosted a party at their apartment. (Feb. 28, 2012 Tr. 656-57.) When asked how he knew Crockett, Mr. Reddy indicated that he had known Crockett since middle school. (Feb. 28, 2012 Tr. 657.) Mr. Reddy indicated that he also knew Jack Korte. (Feb. 29, 2012 Tr. 657.) Mr. Reddy testified that he saw Crockett and Mr. Korte arrive at the party and that he did not see any alcohol in their possession. (Feb. 29, 2012 Tr. 658.) Mr. Reddy testified that Crockett and Mr. Korte stayed at the party “[p]robably no more than half an hour to an hour, ” but he did not see them leave. (Feb. 29, 2012 Tr. 658.)

         Mr. Reddy indicated that he also knew Jacob Palmer. (Feb. 29, 2012 Tr. 659.) When asked if Mr. Palmer was missing from the party at any point, Mr. Reddy stated: “I did not see him for about half an hour, maybe a little bit longer.” (Feb. 29, 2012 Tr. 660.) When asked if the period of time that Mr. Palmer was missing could have been longer, Mr. Reddy stated: “It could have been, but I think it was under an hour.” (Feb. 29, 2012 Tr. 660-61.) When asked if “Mr. Palmer express[ed] an intention to [Mr. Reddy] about going to the store, ” Mr. Reddy stated: “He asked me if I needed anything from the store.” (Feb. 29, 2012 Tr. 662.) Mr. Reddy testified that he told Mr. Palmer that he did not need anything from the store. (Feb. 29, 2012 Tr. 662.) When counsel asked Mr. Reddy if he saw Mr. Palmer leave with Crockett and Mr. Korte, Mr. Reddy indicated that he had not. (Feb. 29, 2012 Tr. 664.)

         When asked if “at some point later [Mr. Reddy was] in the back bedroom and Jacob [Palmer] came up to [him]” and “everybody was sort of confused because Jack and Cameron hadn't been back yet, ” Mr. Reddy stated: “Right.” (Feb. 29, 2012 Tr. 664-65.) When asked if “at some point [Mr. Reddy] [had] to verify that [he was] not driving the vehicle on the night of the accident” because the following day he had called in sick to work, Mr. Reddy responded, “Yes.” (Feb. 29, 2012 Tr. 666.) Mr. Reddy indicated that he had called in sick because he was hungover. (Feb. 29, 2012 Tr. 666.) When asked if he was driving the vehicle, Mr. Reddy stated: “No, ma'am.” (Feb. 29, 2012 Tr. 666.)

         Ammerrell Barretto testified that on December 28, 2008, she attended the party that was held at Josh Reddy's and Kevin Rondorff's apartment. (Feb. 29, 2012 Tr. 671.) Ms. Barretto indicated that she knew both Crockett and Mr. Palmer, but she had not known Jack Korte. (Feb. 29, 2012 Tr. 670-71.) When asked if she recalled that Mr. Palmer had come back to the party and it “was unusual when he came back, ” Ms. Barretto stated: “Yeah. He just seemed like -- he was asking about Cameron and Jack, if, you know, anyone had seen them or heard from them or -- and he just seemed really like weird and sketchy about it.” (Feb. 29, 2012 Tr. 672-73.) Ms. Barretto also stated that “[h]e was breathing kind of heavy.” (Feb. 29, 2012 Tr. 673.) When asked how long Mr. Palmer was gone from the party, Ms. Barretto indicated that she did not recall. (Feb. 29, 2012 Tr. 674.) When asked about her use of the word “sketchy” when describing Mr. Palmer's behavior, Ms. Barretto stated that “[i]t was just weird like how he was just asking about them.” (Feb. 29, 2012 Tr. 674.)

         Officer Beth Coulling testified that she works as a “firefighter/medic with the City of Virginia Beach.” (Feb. 29, 2012 Tr. 676.) Officer Coulling testified that on December 28, 2008, she worked at the fatal accident on Wolfsnare Road. (Feb. 29, 2012 Tr. 677.) Officer Coulling testified that at the accident scene, she was instructed to assist as Crockett was brought to the ambulance. (Feb. 29, 2012 Tr. 679.) Officer Coulling indicated that as the ambulance was travelling to the hospital, she asked Crockett some basic questions. (Feb. 29, 2012 Tr. 680.) Officer Coulling testified that “[h]e answered [her] questions when [she] asked him.” (Feb. 29, 2012 Tr. 681.) When asked if Crockett was able to recall the accident, Officer Coulling stated: “To the best of my knowledge, my memory, I think he did. But he did ask a couple of times what had happened, things like that.” (Feb. 29, 2012 Tr. 681.) When asked if these answers would be consistent with a head injury, Officer Coulling stated: “It is a potential, yes.” (Feb. 29, 2012 Tr. 681.)

         Dr. Christopher Maples testified that he works as an emergency medicine physician. (Feb. 29, 2012 Tr. 683.) Dr. Maples testified that on the night of December 28, 2008, and the early morning of December 29, 2008, he was employed as “a resident in emergency medicine” and he was practicing in Virginia Beach. (Feb. 29, 2012 Tr. 685.) Dr. Maples testified that on the night in question, he received “a patient by the name of Cameron Crockett.” (Feb. 29, 2012 Tr. 685.) When asked if Dr. Maples observed any visible head injuries when examining Crockett, Dr. Maples stated that “[he] noted that [Crockett's] head was atraumatic, meaning there was no trauma that [Dr. Maples] could visualize.” (Feb. 29, 2012 Tr. 689.) Dr. Maples also indicated that Crockett “had a normal exam of his neck, ” and there was no indication of “any particular impact or trauma or blunt trauma to the neck.” (Feb. 29, 2012 Tr. 689-90.) When asked if “there [were] any injuries consistent with [Crockett's] chest striking a steering wheel or an airbag or any blunt surface, ” Dr. Maples stated: “Not that I found.” (Feb. 29, 2012 Tr. 691.)

         Dr. Maples testified that Crockett “did have a laceration to the back of his left hand.” (Feb. 29, 2012 Tr. 691.) Dr. Maples also testified that “there was some discussion as to whether or not [Crockett] had an altered level of consciousness, a decreased level of consciousness initially. All of it seemed to have quickly resolved by the time he got to the emergency room.” (Feb. 29, 2012 Tr. 693.) With respect to any internal injuries, Dr. Maples stated that a CT scan of Crockett's abdomen and pelvis revealed “a small right pulmonary contusion, ” which is “a bruise on the lung.” (Feb. 29, 2012 Tr. 694.) Dr. Maples also stated that Crockett had “pneumothorax, ” explaining that Crockett “had a very small one on the left side of his lung, which is really air in the lung where it doesn't belong.” (Feb. 29, 2012 Tr. 694.) Dr. Maples agreed that this was “consistent with a traumatic injury being in an automobile, being thrown about.” (Feb. 29, 2012 Tr. 695.) Dr. Maples also agreed that when evaluating whether Crockett had head trauma, he had reported that Crockett “follows all commands, alert and appropriate, ” and that Crockett's “mood, memory, affect, and judgment [were] normal.” (Feb. 29, 2012 Tr. 698.) When asked if “someone [can] have amnesia for an event and still be alert and follow commands, ” Dr. Maples responded: “Yes.” (Feb. 29, 2012 Tr. 698-99.)

         Dr. Reuben Koller testified that he works as a clinical psychologist. (Feb. 29, 2012 Tr. 701.) Dr. Koller testified that he specializes in “[b]ehavioral medicine and forensic psychology.” (Feb. 29, 2012 Tr. 702.) When asked if his work included the “evaluation of the memory and recollection of an individual who's been in a traumatic event, ” Dr. Koller stated: “Yes.” (Feb. 29, 2012 Tr. 703-04.) Dr. Koller was tendered, without objection, “as an expert in the field.” (Feb. 29, 2012 Tr. 705.) Dr. Koller indicated that he had not examined Crockett in person, and had not formed “any specific opinions or specific diagnosis with respect to him as an individual.” (Feb. 29, 2012 Tr. 705.) Dr. Koller agreed that “[i]f someone has undergone the experience of a traumatic event, ” it can “affect their memory and recall for that event.” (Feb. 29, 2012 Tr. 707.)

         Helen Gornto testified that she works as “loss prevention for the Shell station” located “at Great Neck Road and First Colonial.” (Feb. 29, 2012 Tr. 709.) Ms. Gornto testified that on December 28, 2008, which was a Sunday, the Shell station operated “from 7:00 a.m. to 11:00 p.m.” (Feb. 29, 2012 Tr. 711.) Ms. Gornto stated that if anyone had gone to the Shell station after 11:00 p.m. that day it would have been closed. (Feb. 29, 2012 Tr. 711.) When asked if on December 28, 2008, the Shell station sold “cigarette rolling papers or so-called blunt rolling papers, ” Ms. Gornto stated: “Yes, we did.” (Feb. 29, 2012 Tr. 711-12.)

         Will Von Stein testified that he works as “the manager at Beach Robo, Inc., ” which is “located at 2456 Virginia Beach Boulevard.” (Feb. 29, 2012 Tr. 715.) Mr. Von Stein testified that the store operates “24/7” and that the store had those same hours on December 28, 2008. (Feb. 29, 2012 Tr. 716.) Mr. Von Stein also testified that the store carries “blunt wrappers for rolling of blunt cigarettes, ” and that these products were available on December 28, 2008. (Feb. 29, 2012 Tr. 716-17.)

         Next, Crockett testified on his own behalf. (Feb. 29, 2012 Tr. 718.) When asked about the year, make, and model of the vehicle involved in the accident, Crockett stated that it was a “1998 Honda Accord. It was a coupe, two door.” (Feb. 29, 2012 Tr. 722.) When asked if he was the driver of the car at the time of the accident, Crockett stated: “Absolutely not.” (Feb. 29, 2012 Tr. 723.) Crockett stated that on Sunday, December 28, 2008, he and Jack had played basketball in the afternoon, and later that same day, around 8:00 pm. or 9:00 p.m., Crockett “picked [Jack] up at his house.” (Feb. 29, 2012 Tr. 725-27.) Crockett stated he and Jack planned “[t]o hang out at [Crockett's mother's] house.” (Feb. 29, 2012 Tr. 727.) Crockett testified that “[j]ust past 10:00, ” he and Jack left the house, explaining:

Well, we had thought when we'd gotten to the house my mother was asleep because it was a Sunday. It was a work night for her. We were in my room, and we had just each opened a bottle of Steel Reserve forty-ounce malt liquor bottles. And we heard her door open and she was outside. So at that juncture we didn't want to get caught drinking at my house and decided to go somewhere else.

(Feb. 29, 2012 Tr. 728.) Crockett stated that he and Jack then went to Kevin Rondorff's apartment. (Feb. 29, 2012 Tr. 729.) When asked about the alcohol percentage of a Steel Reserve beer, Crockett stated: “It's more than usual. I'm pretty sure it's between seven and eight percent.” (Feb. 29, 2012 Tr. 729.) Crockett stated that he had “[a] couple of sips” before he left his mother's house. (Feb. 29, 2012 Tr. 230.) Crockett testified that when he and Jack arrived at Mr. Rondorff's apartment, he and Jack sat and talked in the parking lot for “about a half an hour or forty-five minutes, ” and they were “speed drinking or chugging while [they] were in the car.” (Feb. 29, 2012 Tr. 731-32.) Crockett stated that he and Jack each had one forty-ounce Steel Reserve bottle, and they split a third bottle. (Feb. 29, 2012 Tr. 732.)

         When asked about Jacob Palmer, Crockett stated: “He's a friend of mine. I coached him in basketball, I believe the year before this incident.” (Feb. 29, 2012 Tr. 733.) Crockett testified that he received a text from Mr. Palmer at 10:45 p.m. (Feb. 29, 2012 Tr. 735-36.) Crockett responded to Mr. Palmer as follows: “I told him that we were there, and I asked him to come down to show us which apartment exactly it was.” (Feb. 29, 2012 Tr. 736.) When asked how long Crockett had stayed at the party, Crockett stated: “Not very long at all. I would say anywhere in the vicinity of five to fifteen minutes. Probably closer to ten.” (Feb. 29, 2012 Tr. 739.) Crockett testified that Mr. Palmer initiated a conversation “about smoking a blunt.” (Feb. 9, 2012 Tr. 741.) Crockett stated that Mr. Palmer had marijuana. (Feb. 29, 2012 Tr. 741.) When asked if either he or Jack had any money, Crockett stated: “No.” (Feb. 29, 2012 Tr. 741.)

         Crockett testified that they decided to get blunt papers for the marijuana, and Crockett “told [Mr. Palmer] to take [Crockett's] car and use [Crockett's] gas as [Crockett's and Mr. Korte's] contribution to the blunt.” (Feb. 29, 2012 Tr. 742.) When asked why Crockett did not drive his own car, Crockett stated: “I knew I was too intoxicated to drive and so was Jack.” (Feb. 29, 2012 Tr. 743-44.) When asked if “from this point on do you have an uninterrupted specific and coherent memory of all the events that occurred between that point and when you were in the hospital, ” Crockett responded: “No, it's not entirely coherent.” (Feb. 29, 2012 Tr. 744.) Crockett stated that after he gave the car keys to Mr. Palmer, “the next real coherent memory [he has] is actually waking up in the hospital on the gurney as Officer Wallace told us and being -- conducting an interview with him at 12:17 a.m. that night.” (Feb. 29, 2012 Tr. 744.)

         Crockett testified that between “holding the keys out and the time of waking up in the emergency room, ” he has three pieces of memory, which came back to him in the weeks after his release from the hospital. (Feb. 29, 2012 Tr. 745.) First, Crockett stated:

My mother and I were driving back from Old Dominion. . . . And at that point we were on Great Neck Road, and we went back down towards our house. And we passed the light at Great Neck and Wolfsnare, at which point, just looking at it, you know, it struck me almost kind of like a flashback. And I remembered going the other way, actually going towards the Boulevard in this memory, Virginia Beach Boulevard, and I'm sitting in the backseat angled like this somewhat towards Jack. So I'm looking and talking -- looking at and talking to Jack in the backseat, not necessarily in any one seat, more like in the center towards the right because I wasn't seatbelted. I was just kind of sitting back there. And I remember looking down at my phone and texting and not being able to really see what I was texting. And I remember looking up and seeing that light, that same light at Great Neck and Wolfsnare. We were stopped there. And the driver asked us, Jack and I, Where you guys trying to go, then? I remember those words very specifically.

(Feb. 29, 2012 Tr. 746-47.) When asked “if you had gone to the Shell station to get blunt wrappers at eleven o'clock that night -- or after eleven -- . . . and it was closed and you were going to the Robo or Citgo on Virginia Beach Boulevard, would you have taken the Great Neck Road route that you've just mentioned, ” Crockett responded: “Yes. We would have gone all the way up on Great Neck and taken a right at the Boulevard.” (Feb. 29, 2012 Tr. 747.) Next, Crockett testified:

Almost immediately after I was -- obviously I was pretty shocked at being struck with a flashback of that nature. And I was thinking more and more about it, and I was deep in my own mind and thinking more and more about it trying to unfold the events to see if I could remember anything after having been struck with that. And I had a very similar memory. I'm essentially seated in the same position in the backseat in the center towards the right with that same angle, towards Jack. And I remember doing the same thing, looking down and texting and feeling intoxicated and not being able to read it very easily. At that point I remember looking out to my left and seeing that we were parked. And I recognized where we were. It was the Beach Robo, what is now known as the Citgo gas station. I remember looking out and seeing the gas pumps to my immediate left and seeing the tiny little store they have there. You can't actually walk in it and purchase things. It's a little window. And I remember seeing that and then turning back and talking to Jack briefly.

(Feb. 29, 2012 Tr. 747-48.) When asked if the “Robo or Citgo station [was] a second choice place that [he] had used before to buy blunt wrappers, ” Crockett stated: “Yes. Because it was open twenty-four hours a day. It was convenient for the fact that the Shell had been closed.” (Feb. 29, 2012 Tr. 748.)

         When asked if he “ever saw the face of the driver that is driving in these memories, ” Crockett stated:

No. Because things that I'm looking at -- well, in the first one, I'm angled towards Jack; so I see part of the person's body, but his face is looking forward. And I'm not looking at him, so I can't see his face. And in the second one the driver's not in the car. I'm assuming he's outside. I couldn't see anyone, and I'm just looking out halfway intoxicated and recognizing where I was. So I couldn't see the face at that point either.

(Feb. 29, 2012 Tr. 748-49.) When asked “who is the last person you offered your keys to before you left [the apartment], ” Crockett responded: “Jacob Palmer.” (Feb. 29, 2012 Tr. 749.) Crockett testified that his text records from the night in question “corroborate and confirm” that he was texting at the times from his memories. (Feb. 29, 2012 Tr. 749.) Crockett stated that between 11:06 p.m. and 11:12 p.m., his text records show that four text messages went back and forth, explaining that “[he] had initiated the first text, a text came back in to [him], [he] sent one back out, and [he] [has] the last one in at 11:12.” (Feb. 29, 2012 Tr. 750-51.)

         Crockett testified that the third memory is “not quite as clear as the other two, ” stating:

Well, essentially this memory is actually before we physically got in the car and left the party. Jack and myself were on the passenger side of the car, and I remember someone asked me for a jacket, although I can't say who. I don't remember the person's face. And I also remember telling Jack to take the front seat because he was taller than me. And being a two-door coupe, I was trying to accommodate him with his height.

(Feb. 29, 2012 Tr. 751-52.) Crockett stated that he had “multiple jackets and sweatshirts” in his car, and “[m]ost of the clothing was in [his] trunk.” (Feb. 29, 2012 Tr. 752.) When asked if he remembered giving the person a jacket, Crockett stated: “Not physically handing it to anyone, no.” (Feb. 29, 2012 Tr. 752.) After being shown a photograph of the accident scene that depicted an item behind the car, Crockett explained that the item was “a jacket of [his].” (Feb. 29, 2012 Tr. 752.) When asked if he remembers wearing that jacket on the night in question, Crockett stated: “No.” (Feb. 29, 2012 Tr. 753.) When asked if the jacket is the one “[he] believe[s] [he] gave to someone else who asked for one, ” Crockett responded: “Yes, sir.” (Feb. 29, 2012 Tr. 753.)

         When asked about the “first thing” that Crockett recalled when his memory picks up at the emergency room, Crockett stated:

It was really kind of shocking in the memory considering that I had no recollection of the events immediately prior to that. I remember waking up on the gurney being in that C collar that he explained and really being restricted as far as movement is concerned. I remember feeling pain in the right side of my ribs.

(Feb. 29, 2012 Tr. 758.) Crockett also stated: “I remember Officer Wallace telling me he's going to conduct an interview. That was more or less immediately after this memory picks up.” (Feb. 29, 2012 Tr. 759.) When asked about the “state of [his] mental faculties in terms of clearness of memory at that time, ” Crockett stated: “I didn't even know why I was in the hospital at the time, much less why an officer was speaking to me at that time.” (Feb. 29, 2012 Tr. 759.) Crockett explained that Officer Wallace had asked questions about Crockett's vehicle, which triggered Crockett into thinking that something had happened with a car. (Feb. 29, 2012 Tr. 761.) When asked if Crockett's statements to Officer Wallace - such as Crockett stating, “I mean, did I hit someone, or -- I mean?” - were meant to convey that he was driving the car, Crockett responded:

No, I was not. I was trying to find out what happened because, as you read, I asked him numerous times, I was in an accident? I was in an accident? In what sense? I was trying to find out what had transpired, and he wouldn't tell me. So I just threw a guess out, I mean, did I hit someone? Did I, you know, did I hit something? I didn't know what the deal was, so I was trying to find out from him the nature of the accident.

(Feb. 29, 2012 Tr. 763-64.) When asked why Crockett told Officer Wallace that nobody was in the car with him, Crockett stated: “I couldn't even recall the accident; therefore, I could not tell who was with me. I said there's no one with me because I didn't know what had happened. I didn't know who was with me at that juncture.” (Feb. 29, 2012 Tr. 764-65.)

         When asked about the statements that he had made after he was put under arrest for DUI regarding the fact that no one was in the vehicle with him, Crockett indicated that at that point, he still did not have any recall as to what had happened. (Feb. 29, 2012 Tr. 765.) When asked about his statement - “That figures” - upon learning that Jack had died in the accident, Crockett stated: “Well, I remember rolling over in the hospital bed when he told me that to face against him before I said it. And I remember saying it because it figured I'd be left here and Jack would be the one to pass.” (Feb. 29, 2012 Tr. 768.)

         When asked about the wallet that Ms. Carkhuff described as being in the backseat, Crockett indicated that it was his wallet. (Feb. 29, 2012 Tr. 769.) When asked if he had his wallet with him that night, Crockett stated: “Yes.” (Feb. 29, 2012 Tr. 769.) Crockett indicated that at a later time, he was permitted to look inside the wallet, and there was no money in the wallet. (Feb. 29, 2012 Tr. 770.) When asked if there was “any money in it when you were at Bancroft Hall [at the party], ” Crockett responded: “I had no money on me.” (Feb. 29, 2012 Tr. 770.)

         Crockett testified regarding his cell phone records, Mr. Palmer's cell phone records, and Mr. Korte's cell phone records. Crockett testified that he received a text message and a phone call from Mr. Palmer at 10:45 p.m., and this “was when [Mr. Palmer] was trying to ascertain [Crockett's and Mr. Korte's] whereabouts to see if [they] were at the party yet.” (Feb. 29, 2012 Tr. 777-78.) Crockett also testified that there is an outgoing text message from Mr. Palmer's cell phone to Mr. Reddy's cell phone at around 11:06 p.m. or 11:07 p.m. (Feb. 29, 2012 Tr. 778-79.) Crockett indicated that as far as he knew, at 11:06 p.m., he had left the party because “the maximum amount of time [Crockett and Mr. Korte] stayed was fifteen minutes and [Crockett] arrived at 10:50.” (Feb. 29, 2012 Tr. 778.) Crockett testified that at 11:43 p.m., Mr. Rondorff texted Mr. Palmer. (Feb. 29, 2012 Tr. 779.) Crockett also testified that at 11:19 p.m., there was a phone call from Mr. Palmer to Crockett. (Feb. 29, 2012 Tr. 781.) Further, Crockett testified that “[he] believe[s] at 11:25 p.m. the records read, which is also a call from Palmer to [Crockett].” (Feb. 29, 2012 Tr. 781.) Crockett stated that there was another call from Palmer to him at 3:10 a.m. (Feb. 29, 2012 Tr. 782.) Additionally, Crockett testified that at 12:02 a.m., Mr. Palmer texted Mr. Rondorff; at 12:54 a.m., Mr. Reddy called Mr. Palmer; and at 2:06 a.m., Mr. Palmer called Mr. Rondorff. (Feb. 29, 2012 Tr. 786.) Crockett also testified that there were two calls from Mr. Palmer to Mr. Reddy at 3:19 a.m. (Feb. 29, 2012 Tr. 786.) Crockett stated: “The final text is at 6:29 in the morning from Palmer to myself.” (Feb. 29, 2012 Tr. 787.)

         Crockett testified that on January 8, 2009, the day after he was released from jail, he had a meeting with Mr. Palmer. (Feb. 29, 2012 Tr. 788.) When asked what Crockett had told Mr. Palmer in response to any questions or comments from Mr. Palmer, Crockett stated: “Well, I told him that someone else was driving my car.” (Feb. 29, 2012 Tr. 791.)

         When asked if he smoked cigarettes, Crockett stated: “No, sir.” (Feb. 29, 2012 Tr. 798.) Crockett indicated that he knew that Mr. Palmer smoked cigarettes, that Mr. Palmer typically smoked “Pall Mall” cigarettes, and that the color of the box was “[b]lue typically.” (Feb. 29, 2012 Tr. 799.) When asked about a text message between himself and Mr. Korte, in which Crockett stated, “Word. Rondo said ten. Shall two pregame and scoop another, ” Crockett agreed that the word “pregame” typically means “drinking before actually getting to the party, ” but “[i]t depends on who you're asking. People have different definitions for it.” (Feb. 29, 2012 Tr. 803.) Crockett explained that “scoop another” meant picking up Mr. Korte. (Feb. 29, 2012 Tr. 804.) When asked if “two pregame” meant “two pregame beers, ” Crockett stated: “I don't know what pregaming a beer means.” (Feb. 29, 2012 Tr. 804.) When asked if in the text messages, Crockett referred to himself as “one, ” Crockett responded: “Yes.” (Feb. 29, 2012 Tr. 805.)

         When asked how long after the accident he had his memory flashes, Crockett testified that “[i]t was about two or three weeks later.” (Feb. 29, 2012 Tr. 805.) When asked if he had any flashbacks when he met with Mr. Palmer on January 8, 2009, Crockett stated: “Not flashbacks. But by that point in time I had recalled, as Mr. Sacks described it, the coherent memory of offering him my keys.” (Feb. 29, 2012 Tr. 806.) When asked whether Crockett got the alcohol that he and Mr. Korte were drinking before or after he picked up Mr. Korte, Crockett stated: “I believe it was afterwards on a route to my house.” (Feb. 29, 2012 Tr. 809.) When asked about prior testimony in which Crockett had indicated that he and Mr. Korte thought they were “invincible, ” Crockett stated: “Not literally speaking; but yes, we thought we were more or less above -- . . . . reality.” (Feb. 29, 2012 Tr. 815.) When asked if feeling invincible meant “not capable of being hurt, not capable of being harmed, not capable of being in trouble, ” Crockett responded: “Not necessarily that. I mean, to an extent, yes. But for the most part we just felt that we were above reality to a certain extent. Jack and I frequently had, you know, conversations and we thought that we were just kind of a breed apart.” (Feb. 29, 2012 Tr. 815- 16.)

         When asked whether at the hospital, he had asked Officer Wallace “where it happened” or “if Jacob Palmer was okay, ” Crockett responded: “No. Because I did not recall at the time that anyone was with me.” (Feb. 29, 2012 Tr. 816-18.) When asked if Crockett had accused Mr. Reddy of being the driver of the car, Crockett stated: “I personally did not accuse Josh Reddy, no.” (Feb. 29, 2012 Tr. 818-19.)

         B. Crockett's New Evidence of Innocence[8]

         1. Counsel's Conversation with Pamela Gillespie and the Affidavit of Pamela Gillespie

          In support of Crockett's actual innocence claim, he first discusses (i) counsel's notes regarding a conversation with Pamela Gillespie, a juror from Crockett's first trial (“Juror Gillespie”), which ended in a mistrial after the jury failed to reach a consensus at the sentencing phase of the trial, and (ii) an affidavit from Juror Gillespie. (ECF No. 1-1, at 27 (citing State Habeas Exs. 145, 419).)

         Counsel's notes regarding his conversation with Juror Gillespie are dated June 11, 2011. (State Habeas Ex. 145, at 1.) Counsel's notes are handwritten and consist of sentence fragments describing his conversation with Juror Gillespie. (Id.) Due to the cursory nature of these notes, and the fact that the handwriting is difficult to decipher, the Court does not attempt to summarize the notes here. In Juror Gillespie's affidavit, she states:

1. I, Pamela Gillespie, served as a juror on Cameron Crockett's 2011 involuntary manslaughter trial.
2. After we could not arrive at a unanimous agreement regarding Mr. Crockett's sentence, we were discharged from service.
3. Following this discharge, I could not sleep at night not knowing what happened afterwards or what might have happened to Mr. Crockett. I felt horrible about how everything went and I had residual doubt about the young man's guilt. I decided to call Mr. Sacks, Cameron's attorney, not long after we were discharged to see what had happened.
4. During this conversation, I gave Mr. Sacks some insight into our deliberative process. I told Mr. Sacks that the jury really struggled, but that ultimately, Mr. Crockett's statement to police was the determining factor in our verdict of guilty. As soon as we heard Mr. Crockett ask if he had hit someone, it was as if a light switch went off. Prior to that, we were leaning the other way.
5. We were also somewhat concerned about the fact that no evidence whatsoever was presented as to the cause of the accident. All we knew was that the road was wet and the driver lost control of the vehicle.
6. All of the above statements are true, honest, and correct.

(State Habeas Ex. 419, at 1-2.) The affidavit, dated October 14, 2015, is notarized, and includes the following notary's oath: “This day personally appeared before me, the undersigned Notary Public in and for Virginia Beach, Virginia, Pamela Gillespie, who after first being duly sworn, deposed and said that the facts contained in the foregoing instrument are true and correct.” (Id. at 2.)

         Crockett argues that “[Juror] Gillespie's affidavit shows that the case was quite close in the jury's eyes, ” and “[a]ccording to her recollection of the deliberations, it was Mr. Crockett's statements to police that sank the defense in 2011.” (ECF No. 1-1, at 27-28.) Crockett claims that “[w]ere it not for their admission into evidence, the first jury would have acquitted Mr. Crockett.” (Id. at 28.) However, despite Crockett's arguments regarding his likely acquittal in his first trial, Crockett fails to articulate, and the Court fails to discern, how Crockett is able to conclude from one juror's statements that the entire jury would have acquitted him.

         Furthermore, as noted above, the Supreme Court has explained that to be credible, three types of “new reliable evidence” may support a petitioner's allegations of innocence. Schlup, 513 U.S. at 324. These include “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. Juror Gillespie's affidavit and counsel's notes regarding his conversation with Juror Gillespie do not constitute any of the three above-listed types of evidence.

         2. “Crockett's Known Habit of Letting Others Drive His Car While He Was Intoxicated”

         As support for his actual innocence claim, Crockett next contends that “[s]everal years prior to the accident, Mr. Crockett received a citation in Virginia Beach for underage possession of alcohol, ” and “[h]e received this ticket under circumstances that, ironically, reflect just how plausible it is that he let someone else drive his car on the night of the accident.” (ECF No. 1-1, at 28 (citing State Habeas Ex. 1, at 7).) Crockett references his own affidavit as support for this assertion.

         As relevant to Crockett's assertion regarding the similarities of the two incidents, in his affidavit, he states:

The only criminal charge of which I had been convicted (excepting traffic violations) prior to this incident was a misdemeanor underage possession of alcohol charge. To the best of my recollection, this happened in 2006. I believe my mother still has the canary carbon copy of the summons issued to me from this matter. I was issued this ticket in relation to an incident in which a friend of mine, Brandon Liptak, was pulled over on Independence Boulevard near the hospital for driving errantly. Importantly, he was driving my car as I was in the backseat. Much like on December 28, 2008, I had given him my keys because while I was intoxicated, he had only consumed, if I recall correctly, one beverage. My friends Parker Young and Ashlynn Cannon were also in the car at this time and all of us received tickets. I had never been arrested prior to December 29, 2008 and had certainly never been in police custody before.

(State Habeas Ex. 1, at 7.) The affidavit is dated April 1, 2016. (Id. at 20.) The affidavit is notarized, and includes the following notary's oath: “This day personally appeared before me, the undersigned Notary Public in and for Tazewell County, Virginia, Cameron Crockett, who after first being duly sworn, deposed and said that the facts contained in the foregoing instrument are true and correct.” (Id.)

         With respect to this portion of Crockett's affidavit, in his Memorandum in Support of his § 2254 Petition, he contends:

Granted, the nature of this juvenile offense doesn't exactly paint a pretty picture of Mr. Crockett's partygoing behavior as a youth, but that is not what matters here. What matters is how this incident clearly shows the way Crockett routinely acted whenever he had a chance to drive drunk: he chose the less reckless option of letting a clearer-headed friend drive his car instead.

(ECF No. 1-1, at 28.)

         As an initial matter, Crockett's affidavit does not qualify as the sort of new reliable evidence described by the Supreme Court. See Schlup, 513 U.S. at 324; Perry v. Virginia, No. 3:13CV327-HEH, 2013 WL 4590619, at *4 (E.D. Va. Aug. 28, 2013) (concluding that defendant's post-conviction declaration of innocence could not support a claim of actual innocence); McGivery v. Johnson, No. 3:10CV455-HEH, 2011 WL 1838874, at *5 (E.D. Va. May 13, 2011). To accept such commonplace self-serving statements and declarations of innocence would ignore the Supreme Court's admonition that the quality of evidence necessary to support a claim of actual innocence “is obviously unavailable in the vast majority of cases.” Schlup, 513 U.S. at 324; see Calderon, 523 U.S. at 559 (emphasizing that new reliable evidence of innocence is a “rarity”).[9] Crockett fails to articulate, and the Court fails to discern, how Crockett is able to conclude from one instance in which he allowed someone else to drive his car when he was drunk that this is “the way Crockett routinely acted whenever he had a chance to drive drunk.” (ECF No. 1-1, at 28 (emphasis added).).

         3. Possible Testimony from Defense Witnesses Josh Reddy and Ammerrell Barretto

         Next, Crockett contends that “[w]hen trial counsel questioned defense witnesses Josh Reddy and Ammerrell Barretto at trial, he neglected to elicit testimony from each of them that was important in the context of what they had told the jury.” (ECF No. 1-1, at 29.)

         Crockett claims that “Reddy had given a pre-trial interview in which he clarified that when Jacob Palmer approached him at the party to ask if he needed anything from the store, Reddy saw him walk over from where Mr. Crockett and Mr. Korte were standing.” (Id. (citing State Habeas Ex. 389).) Crockett also claims that “[t]his would have further tended to establish that Crockett, Korte, and Palmer were all having a conversation about going to the store at that time as Crockett testified.” (Id.)

         State Habeas Exhibit 389, which Crockett cites as support for his claim regarding Mr. Reddy's possible testimony, consists of the defense investigator's notes from interviews with Mr. Reddy. (State Habeas Ex. 389, at 1-3.) Mr. Reddy did not provide the statements under oath. (See id.) The defense investigator reported that Mr. Reddy had stated that he and Kevin Rondorff shared a condo, and that they had held a party on the night in question at their condo. (Id. at 1.) The investigator also reported the following:

Josh said he did not have any injuries as some rumors had suggested. He said that rumor was all out of whack. He said Jacob asked him if he needed anything from the store, that Cameron and Jack were going. He did not see Jacob Palmer go with Cameron and Jack. He did not see who got in the car when they left. He did not see Cameron or Jack with any drinks. He could not recall Jacob's whereabouts around the time of the accident. He said he did not know about the accident until the next day at noon on the news. The night of the party Josh said Palmer was texting him and calling both Josh and Kevin. He was not sure what the texts or phone calls were about and said he did not see Jacob at the party at the time of those texts and phone calls were made.

(Id. at 1-2.) When asked why “Palmer [was] texting [him] or calling [people] at the party, ” Mr. Reddy stated: “I don't know. Maybe because we could not hear with the noise. Kids do that at parties.” (Id. at 2.)

         Additionally, Crockett claims that “with Barretto, she had given an interview in which she stated that she heard Palmer say he was ‘going for a smoke' just before he left the party.” (ECF No. 1-1, at 29 (citing State Habeas Ex. 385).) Crockett argues that “[o]bviously, this would have strongly corroborated Crockett's testimony that they all left the party to smoke a blunt together.” (Id.) State Habeas Exhibit 385, which Crockett cites for his claim regarding Ms. Barretto's possible testimony, consists of the defense investigator's notes from an interview with Ms. Barretto. (State Habeas Ex. 385, at 1-2.) Ms. Barretto did not provide her statements under oath. (See id.)

         In Ms. Barretto's interview with the defense investigator, the investigator reported, inter alia:

She stated that she heard someone say that Jacob Palmer wanted to go to the store called Robo Station but did not know why he wanted to go. This was the time she said when Cameron and Jack left.
Palmer told Kevin that he was going out for a smoke. She said he was gone for an unusual amount of time and that when he came back Kevin asked him what took him so long to smoke. She did not see Palmer leave nor did she see Cameron and Jack leave. When Palmer returned to the party he was asking where Cameron and Jack were. Did anyone see them. Ammerell said that Kevin told her he thought Jacob went with Cameron and Jack to the store although he did not see them leave.

(Id.)

         As an initial matter, the statements of Mr. Reddy and Ms. Barretto to which Crockett refers are from the defense investigator's interview summaries and there is no indication that the statements were made under oath, let alone penalty of perjury. See Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991) (refusing to consider documents verified in such a manner to avoid the penalty of perjury); Hogge v. Stephens, No. 3:09CV582, 2011 WL 2161100, at *2-3 & n.5 (E.D. Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made upon information and belief, as “mere pleading allegations”) (quoting Walker v. Tyler Cty. Comm'n, 11 Fed.Appx. 270, 274 (4th Cir. 2001)).

         Furthermore, setting aside issues regarding the reliability of this evidence, Crockett misstates the information contained in State Habeas Exhibits 389 and 385. Specifically, Crockett argues that Mr. Reddy's pre-trial statements support Crockett's trial testimony, stating that “Crockett, Korte, and Palmer were all having a conversation about going to the store at that time.” (ECF No. 1-1, at 29.) However, Crockett neglects to mention that the pre-trial interview notes reflect that Mr. Reddy also stated that “Jacob asked him if he needed anything from the store, that Cameron and Jack were going. He did not see Jacob Palmer go with Cameron and Jack.” (State Habeas Ex. 389.) Rather than support Crockett's innocence claim, such a statement tends to show Crockett's guilt because Mr. Reddy reported only that Mr. Palmer had indicated “Cameron and Jack were going” to the store, not Mr. Palmer. (See id.)

         Similarly, with respect to Ms. Barretto's statements, Crockett concludes that because Ms. Barretto heard Palmer say he was “going for a smoke, ” “[o]bviously, this would have strongly corroborated Crockett's testimony that they all left the party to smoke a blunt together.” (ECF No. 1-1, at 29 (citing State Habeas Ex. 385).) However, such a conclusion is not obvious because Ms. Barretto indicated only that “Palmer told Kevin that he was going out for a smoke.” (State Habeas Ex. 385.) There is no indication as to whether Mr. Palmer intended to smoke a cigarette or marijuana, and there is no indication that Mr. Palmer intended to smoke with any other individuals. (See id.) As such, Crockett's arguments regarding the potential testimony of Mr. Reddy and Ms. Barretto does not significantly bolster his actual innocence claim.

         4. “Palmer's Reckless Driving Habits and History of Escaping Trouble by Hiding Out in the Wolfsnare Woods”

         Crockett claims that “[a]t one point during the pretrial investigation, the defense stumbled across evidence regarding Jacob Palmer's driving habits on Wolfsnare Road.” (ECF No. 1-1, at 29.) Crockett claims that “[o]ne Mr. Griff, a retired Virginia Beach Sheriff's Deputy, remembered Jacob Palmer specifically because he had a penchant for speeding on Wolfsnare Road.” (Id.) Crockett contends that State Habeas Exhibit 376 shows that “Mr. Griff actually told Palmer ‘several times to slow down before he kills someone, and even talked to his mom about it.'” (Id. (citing State Habeas Ex. 376).)

         State Habeas Exhibit 376 consists of three separate pages: (i) an e-mail from “IC” to “AMS, ” with the subject, “Crockett witness: William Von Stein, ” (ii) an internet printout with the title, “Jacob Palmer's Photos - Profile Pictures” and a photo, and (iii) a page with four lines of handwritten notes, stating inter alia, “Shown to Don - Neg.” (State Habeas Ex. 376, at 1-3 (omitting Mr. Von Stein's work phone number and cell phone number from the subject line of the e-mail).) The e-mail states, in sum:

He is the manager at the Citgo Gas Station and does not know why he is subpoenaed. He was not working that night [and] knows nothing. He also said that Don Harrison moved back to New York and will not be in Court. Don was there that night but does not remember anything.
Mr. Von Stein again told me about the Retired Sheriff, Mr. Griff, who said he remembers the boy and he was always speeding in the neighborhood (Wolfsnare). He told . . . the boy several times to slow down before he kills someone, and even talked to his[] mom about ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.