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Jessup v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

September 27, 2019

JAMES JESSUP, Petitioner,
v.
HAROLD CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Senior United States District Judge.

         Petitioner 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.

         I. Background.

         A grand 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.[1] Jessup pleaded not guilty and proceeded to a bench trial on August 8, 2013.

         In 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 Commonwealth:

[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.[2] [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 happened.
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.[3]
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 trailer.

         Mem. Supp. Mot. Dism. Ex. B, ' at 3-5, ECF No. 11-2.

         Several 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, 84.[4] 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.

         At the 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 two witnesses.

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 violation.
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.

         At the 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 170.

         Appearing 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.

         When 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.

         Judge 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 ...


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