United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
James Jessup, a Virginia inmate proceeding pro se, filed this
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging the validity of his confinement
under a 2013 judgment by a state court. The matter is
presently before the court on the respondent's motion to
dismiss and Jessup's response thereto. For the reasons
set forth below, the court concludes that the
respondent's motion to dismiss must be granted.
jury of the Appomattox County Circuit Court returned
indictments in June of 2013, charging Jessup with one count
of indecent liberties and nine counts of sexual abuse of a
child at least thirteen but not yet fifteen years of age:
three counts of carnal knowledge without the use of force,
three counts of forcible sodomy, and three counts of object
sexual penetration. Jessup pleaded not guilty and proceeded to
a bench trial on August 8, 2013.
denying Jessup's direct appeal, the Court of Appeals of
Virginia found the following facts from the evidence
presented at trial, stated in the light most favorable to the
[I]n July 2012, fourteen-year-old C.H. spoke to [Jessup] when
he visited with her parents at their house. C.H.'s
birthday was on July 25, and [Jessup] was at her house around
the time of her birthday. C.H. testified [Jessup] sent her
text messages and called her afterwards. C.H. testified she
next saw [Jessup] at H.J.'s trailer just prior to the
start of school in mid-August 2012. H.J. was [Jessup]'s
daughter. C.H. testified [Jessup] arrived at H.J.'s
trailer, [he] took her to Wal-Mart, [he] bought her a pair of
pants, and they returned to H.J.'s trailer. C.H.
testified she went to the bathroom to try on the pants, she
exited the bathroom, [Jessup] took her to H.J.'s bedroom,
and [Jessup] put his hand down her pants. C.H. testified
[Jessup] rubbed her vagina and put two fingers inside her
vagina. C.H. testified H.J. drove her home and she did not
tell her parents what had happened.
C.H. testified after the August incident, she saw [Jessup]
when he came to her house to visit with her parents. C.H.
testified [Jessup] called her or sent her a text message
every day after the August incident and [Jessup] stated that
he wanted to marry her after she turned eighteen. C.H.
testified on a Friday in late October 2012, H.J. picked her
up and took her to H.J.' s trailer. [Jessup] was at
H.J.' s trailer. C.H., H.J., [Jessup], and others went to
a Pizza Hut and Wal-Mart, where one of the adults purchased
alcohol. While in the car, C.H. consumed alcohol. Later,
[Jessup] drove C.H., H.J., and H.J.'s boyfriend to
H.J.'s trailer. C.H. testified she went to the bedroom to
lie down because she was not feeling well from the alcohol.
C.H. testified [Jessup] removed her pants, [he] removed her
underwear, and [he] inserted his fingers into her vagina.
C.H. testified [Jessup] also performed oral sex on her. C.H.
testified she spent the night at H.J.'s trailer, and on
Saturday morning, [Jessup] again performed oral sex on her.
C.H. testified [Jessup] drove her home on Saturday morning,
she packed clothes, and they later returned to H.J.'s
trailer. C.H. testified [Jessup] slept in the same bed with
her on Saturday night and [he] used his "fingers and
tongue" again. C.H. testified H.J. drove her home on
Sunday morning. C.H. did not tell her parents what had
After the October incident, [Jessup] and C.H. frequently sent
text messages to each other and talked on the phone. C.H.
testified she next saw [Jessup] in late December 2012. C.H.
testified H.J. picked her up and they went to H.J.'s
trailer, but H.J. left a short time later. C.H. testified
[Jessup] was at the trailer and he performed oral sex on her
while she performed oral sex on him. C.H. testified [Jessup]
took her home. During cross-examination, C.H. admitted she
telephoned a bomb threat to her school in March 2013 [after
arrest warrants for the sexual offenses had been issued
against Jessup in January 2013]. C.H. explained she did not
want to go to school because classmates knew about the
charges and they were calling her names. C.H. admitted she
told adults about the incidents after C.H. learned that H.J.
accused [Jessup] of rape.
H J. testified [Jessup] was at her trailer on October 26,
2012, and after going out for pizza, consuming alcohol, and
visiting friends, C.H. and [Jessup] spent the night in a
bedroom of the trailer. H.J. testified [Jessup] and C.H.
spent the night of October 27, 2012 together at her trailer.
H.J. testified she never left [Jessup] and C.H. alone in her
Supp. Mot. Dism. Ex. B, ' at 3-5, ECF No. 11-2.
times during cross-examination, defense counsel pointed out
inconsistencies between C.H.'s trial testimony and her
testimony at the preliminary hearing. Tr. 64, 73-74, 75, 82,
C.H. testified that her father and Jessup rode motorcycles
and would go to the drag strip to race, and sometimes she
went with them. Tr. at 79. C.H. admitted during
cross-examination that she had telephoned a bomb threat to
her school in March of 2013, and then she explained that she
did not want to go to school after classmates learned of the
charges against Jessup and began calling her names. Tr. at
91-92, 95-96. C.H. also admitted that she told adults about
the incidents with Jessup only after learning that H.J. had
accused Jessup of sexual offenses charged in Nelson County.
Tr. at 81-82.
conclusion of the Commonwealth's case, the trial court
struck three charges of forcible sodomy and three charges of
object sexual penetration. Tr. at 135-37. The defense put on
Grace Scott, [Jessup]'s sister, testified she lived at
H.J.'s trailer from the end of July through October 3,
2012, she never left the trailer, she never saw C.H. at the
trailer, and she saw [Jessup] at the trailer for a brief
period on only two occasions. Scott testified she only left
the trailer because she was arrested for a probation
Erin Thompson, [Jessup]'s wife, testified she went to the
drag strip on the afternoon of October 27, 2012 with [Jessup]
and others, including C.H. and C.H.'s parents. Thompson
testified she remembered the date because she had a track
timesheet for the date. Thompson testified the track
timesheet showed [Jessup] raced between 4:43 p.m. and 5:54
p.m. Thompson testified she left the drag strip with
[Jessup], they went home, and he stayed home with her.
Mem. Supp. Mot. Dism. Ex. B, at 5, ECF No. 11-2.
conclusion of the evidence, Judge Kimberly White stated that
the case rested on the credibility of C.H. The judge said she
had listened "exceedingly carefully" to C.H.'s
testimony t and had taken
"copious notes" when C.H. and H.J. were testifying.
Tr. at 167. Judge White stated that C.H.'s testimony was
clearer than H.J.'s testimony and found that C.H.'s
testimony regarding the sexual acts was credible. Tr. at 167,
170. Judge White found Jessup guilty of three counts of
carnal knowledge and one count of indecent liberties. Tr. at
for sentencing on September 5, 2018, Jessup's counsel
made an oral motion for a new trial. Hr'g Tr. at 3.
Counsel stated that H.J. had told him she wanted to change
her trial testimony about the offenses against C.H.
Id. Counsel said that H.J., who was present, would
"testify, in essence, that none of this happened."
Id. Judge White directed defense counsel to file a
written motion, continued the sentencing, and closed court
without permitting H.J. to present her testimony.
Id. at 4-5.
the parties reappeared for sentencing on September 16, 2013,
H.J. was not present. Sent. Tr. at 6. Jessup's counsel
proffered that H.J. feared changing her testimony would
result in prosecution for perjury and jeopardize her new
public housing arrangement. Id. at 20. The
prosecutor reported H.J.'s statement after the hearing on
September 5, 2013, that Jessup's family had offered her
$2, 000 to change her story, and she needed the money.
Id. at 22-23. In support of the motion for new
trial, Jessup's counsel unsuccessfully offered an
unsigned affidavit he had prepared for H.J. to sign on
September 5, 2013, which she had thereafter refused to sign,
saying that it was not correct. Id. at 21-22.
Counsel also offered into evidence a participant registration
form from the drag race strip. Id. at 24-25.
White recognized that the registration form was corroborative
of the trial testimony from Jessup's wife. Id.
at 29. The judge also noted that even at trial, she had
recognized discrepancies between H.J.'s and C.H.'s
testimony and that she continued to find C.H. to be the more
credible witness. Id. at 30. The judge then denied
the motion for a ...