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Blagmon v. Meyer

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

October 15, 2019



          M. Hannah Lauck United States District Judge

         Petitioner Darnell Bernard Blagmon, a Virginia prisoner proceeding with counsel, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit Court for the City of Virginia Beach, Virginia (the "Virginia Beach Circuit Court"). Blagmon argues that he is entitled to relief on the following ground:

Ground One: The Virginia courts violated Petitioner's right under the Due Process Clause of the United States Constitution [when the courts] denied relief to Petitioner despite Berdecia's affirmation and without holding an evidentiary hearing to properly consider Petitioner's Actual Innocence Petition. (§ 2254 Pet. 6.)[1]

         Respondent Warden Thomas Meyer filed a Motion to Dismiss, (ECF No. 9), asserting that Blagmon's habeas petition should be dismissed because Blagmon did not timely file his claim and the relevant statute of limitations bars relief. (ECF No. 9.) Blagmon filed a Response. (ECF No. 13.) Meyer did not reply. For the reasons set forth below, the Court will grant Meyer's Motion to Dismiss, (ECF No. 9), because Blagmon did not timely file his § 2254 Petition.

         I. BACKGROUND

         A. Jury Trial and Direct Appeal

         In November 2006, Blagmon went to trial in the Virginia Beach Circuit Court on three counts: (1) murder during a robbery (felony murder), (2) robbery, and (3) use of a firearm in the commission of a felony (robbery). (See ECF No. 10-1, at 1.) At the beginning of the trial, the jury heard several stipulated facts about Blagmon going on a walk with Angel Berdecia and the murder victim, Keith Sears. (Nov. 28, 2006 Tr. 117-18.) During that walk, the parties stipulated that Sears was shot in the head and killed. (Nov. 28, 2006 Tr. 117-18.) The parties further stipulated that the bullet that killed Sears came from "a Hi-Point .390 automatic. Model CF380, Serial Number P90628, with a mounted Beamshot 1, 000 laser under the barrel." (Id.) The parties also stipulated that Angel Berdecia's mother, Ruth Quinones, found the Hi-Point handgun in a trash can on her porch. (Id. at 118.) The parties agreed that the medical examiner recovered the .380 caliber bullet from Sears's brain "during [the examiner's] autopsy of the body on December 15, 2005." (Id. at 119.) The parties further stipulated that "various witnesses heard a shot early in the morning of December 14, 2005, but no one except Darnell Blagmon and Angel Berdecia can physically and directly identify the participants in the shooting or who killed Keith Sears." (Id. at 121.)

         In addition to the stipulated facts, the jury heard testimony from the following individuals at trial: (1) Angel Berdecia, the only other person who witnessed the shooting of Keith Sears: (2) Detective Janine Hall, a detective who interviewed Blagmon after the incident; (3) John Rivera, an inmate incarcerated with Blagmon prior to trial; (4) Raquel Ramoutar, Berdecia's sister-in-law who discussed the murder and robbery with Blagmon after it occurred; (5) Dr. Leah Bush. the medical examiner who performed the autopsy on Sears; (6) Ruth Quinones, Angel Berdecia's mother and the person who found the Hi-Point gun in her trash can; and, (7) Ruth Damaso Neely, a forensic scientist who conducted a DNA analysis on evidence retrieved from the crime scene. (See Nov. 28-29, 2006 Tr.)

         Berdecia, one of the Commonwealth's primary witnesses at trial and the only other witness to Sears's murder, testified about the night of Sears' death. (Nov. 28, 2006 Tr. 125.) Berdecia testified that on the night Sears died, he and Blagmon went for a walk with Sears, during which he saw Blagmon wearing black gloves and "heard the gunshot." (Id. at 129-32.) Berdecia said that he "was behind both of them" when Sears was shot, and that he "picked up [Sears'] body with no choice" because Blagmon had threatened to shoot him also. (Id. at 132-33.) Berdecia stated that he and Blagmon "placed the body behind some bushes," (Id. at 133), and then he ran when Berdecia started going through Sears' pockets. (Id. at 135). During cross-examination, Counsel for Blagmon called into question Berdecia's credibility. (See, e.g., Nov. 28, 2006 Tr. 145-48, 152-61). Counsel for Blagmon specifically asked Berdecia about lying to the police about Sears' murder, and Berdecia affirmed that he lied to the police on multiple occasions. (Id.)

         After hearing the stipulated facts and trial testimony, the jury convicted Blagmon of one count of murder during a robbery (felony murder) and one count of robbery. (See ECF No. 10-1, at 1.) The jury acquitted Blagmon of use of a firearm in the commission of a felony. (Id. at 2.) On April 2, 2007, the Circuit Court sentenced Blagmon to thirty-five years of incarceration.[2](Id. at 4.)

         Blagmon appealed, challenging the sufficiency of the evidence to support his convictions of "robbery and first-degree murder during the commission of a robbery." (ECF No. 10-2, at 1.) On November 2, 2007, the Court of Appeals of Virginia (the "Virginia Court of Appeals") denied Blagmon's petition for appeal. (Id.) In rejecting Blagmon's sufficiency of the evidence arguments for the robbery and murder convictions, the Virginia Court of Appeals concluded that the evidence at trial showed:

[Blagmon] approached Angel Berdecia outside of Berdecia's residence and told him [that Blagmon] needed to rob someone that night. Berdecia testified that [Blagmon] indicated he planned on robbing Keith Sears, who owed him approximately $65.00.
Later that evening, [Blagmon], Berdecia, and Sears were walking down the street when Berdecia heard a gunshot and saw [Blagmon] crouch over Sears' body and lift it up by the shoulders. Berdecia, who knew [Blagmon] was carrying a gun at the time, asked him, "What did you do? Why did you do that for? What's going on?" Berdecia assisted [Blagmon] in moving Sears' body behind bushes because [Blagmon] threatened to shoot Berdecia if he did not do so. [Blagmon] crouched over the body after they had moved it and told Berdecia to act as a lookout. While [Blagmon] was preoccupied, Berdecia ran away.
When Berdecia met with [Blagmon] later that night, [Blagmon] told him, "We take this to our graves. We don't tell nobody." [Blagmon] handed Berdecia $10.00, and Berdecia saw that [Blagmon] had "a bunch of twenties" in his pocket. Berdecia stated that he saw [Blagmon] wearing black gloves every time he handled the firearm. The next day, [Blagmon] returned and Berdecia returned the weapon to him. Ruth Quinones, Berdecia's mother, testified that a few weeks after the incident, as she emptied the trash for the first time after Sears' murder, she found what the police later confirmed to be a .380 handgun in a trashcan outside the house where she and Berdecia reside.
John Rivera testified that, while both men were incarcerated, [Blagmon] told him that, "He should have killed Angel while he had the chance." Rivera also stated that [Blagmon] told him that he had planned to rob Sears because he heard that Sears was carrying money. [Blagmon] told Rivera that he carried a gun while he, Berdecia, and Sears walked to the store. [Blagmon] admitted to Rivera that when he cocked the gun, Sears became upset, and Berdecia and Sears began struggling. During the struggle, [Blagmon] shot Sears, and he and Berdecia took money from Sears' pocket. During an altercation between Rivera and [Blagmon], [Blagmon] told Rivera, "I will kill you liked I killed [Sears]."
Raquel Ramoutar testified that after the police took Berdecia into custody, [Blagmon] repeatedly called her, saying, "Angel better shut his mouth, not say nothing because the police ain't got nothing on us." Dr. Leah Bush, assistant chief medical examiner, testified that Sears suffered a gunshot wound to the back of his head and blunt force trauma. She stated that the bullet that was removed from Sears' head "resembles a .380 caliber."

(Id. at 1-3.) On March 19, 2008, the Supreme Court of Virginia refused Blagmon's petition for appeal. (ECFNo. 10-3, at 1.)

         B. Postconviction Proceedings

         On March 16, 2009, Blagmon filed a petition for writ of habeas corpus in the Virginia Beach Circuit Court. (ECF No. 10-4, at 1-7.) In his state habeas petition, Blagmon challenged the validity of his convictions on two grounds: (1) insufficient evidence; and, (2) improper jury instructions. (Id. at 5.) On June 11, 2009, because the "Supreme Court of Virginia has ruled that claims that were raised and decided in the trial court or on direct appeal are barred from consideration in a habeas proceeding," (Id. at 5-6), the Virginia Beach Circuit Court denied Blagmon habeas relief. Blagmon did not appeal the denial of his state habeas petition.

         On October 6, 2017, over eight years later, Blagmon filed in the Virginia Court of Appeals a Petition for a Writ of Actual Innocence based on nonbiological evidence. (ECF No. 10-7, at 1-20.) Blagmon based his claim of innocence on a written statement that Angel Berdecia provided to him, which became "known or available to [Blagmon] on October 20, 2014." (Id. at 2.) The unsworn and undated handwritten document that Berdecia provided said that:

On or about December 14, 2005, [Berdecia] was in a heated conversation with Mr. Keith Sears that resulted in a physical altercation. Which ultimately ended with the death of Mr. Keith Sears. There was never any argument or altercation between Mr. D. Blagmon and Mr. Keith Sears. I just want to bring forth the truth which is Mr. D. Blagmon never willingly aided or abetted, nor assisted in the death or robbery of Mr. Keith Sears. My reason for writing this wrong is, because Mr. D. Blagmon, was erroneously charged and convicted for crimes he is not responsible for committing. Mr. D. Blagmon is erronesouly convicted of the aforementioned crimes because of my coercive and falsified statement and testimony. Mr. D. Blagmon convictions must be reversed/overturned because he is not guilty of and never has willingly aided or abetted in the aforementioned crimes which are murder and robbery.

(Id. at 9.)

         In its November 15, 2017 Opinion evaluating Blagmon's Petition for Writ of Actual Innocence, the Virginia Court of Appeals reviewed the evidence presented at trial and summarized the evidence as follows:

Blagmon was tried and convicted for the felony murder and robbery of Keith Sears on December 13, 2005.
During the trial, the parties stipulated to the following facts: In the early morning hours of Wednesday, December 14, 2005, Sears, a/k/a "Flames," Blagmon, and Angel Berdecia walked together from Berdecia's residence. During the walk. Sears was shot in the head and killed. The bullet later removed from his brain was identified as a .380 caliber bullet and was fired from a distance of less than six inches. The gun that fired the bullet was found by Berdecia's mother in a trash can on her porch on January 5, 2006. It was wrapped in a brown paper bag.
In addition to the stipulated facts, several witnesses testified at trial regarding statements Blagmon made concerning the offenses. Detective Janine Hall testified that she interviewed Blagmon on December 20, 2005, and that Blagmon told Hall that the idea to rob Sears originated with Berdecia, Blagmon's co-defendant. After initially denying any conversation with Berdecia prior to the robbery and murder, Blagmon eventually admitted that he and Berdecia discussed robbing Sears shortly before the robbery and shooting occurred. Berdecia told Blagmon that Berdecia was "tired of Sears staying at his house and eating up his food" without reimbursing Berdecia and that Berdecia was going to rob Sears.
Upon Hall relating that Berdecia had told the police that the robbery idea originated with Blagmon, Blagmon disputed that claim; however, he did admit stating to Berdecia in the context of the robbery conversation that "it was Christmastime and he [Blagmon] needed to get some money." Blagmon told Hall that, after the two men discussed robbing Sears, Blagmon did not believe that Berdecia would follow through with the robbery. When Blagmon and Berdecia walked with Sears from Berdecia's house on the evening of December 14, 2005, Blagmon told Hall that Berdecia shot Sears without warning. Blagmon admitted to Hall that he helped Berdecia move Sears's body into an alley and then acted as a "lookout" while Berdecia went through Sears's pockets. When Berdecia and Blagmon met back at Berdecia's house that evening, Berdecia gave Blagmon $25.00 and kept a larger amount for himself. Blagmon told Hall he could not see exactly how much money Berdecia had, but Blagmon estimated it was around $150.00. Blagmon confirmed that Berdecia had no money prior to the robbery.
During his interview with Hall, Blagmon admitted that, "two and a half to three weeks prior" to December 20, 2005, he had borrowed a loaded .380 caliber gun from a friend named "Wallace" and that the gun was at Berdecia's house.
John Rivera was incarcerated with Blagmon prior to trial and testified to statements made by Blagmon to him during their incarceration. Blagmon told Rivera that Blagmon knew that Sears had money on him on the night of the robbery and murder because Blagmon knew Sears intended to purchase drugs. Blagmon stated that he instructed Berdecia to get his gun before Blagmon and Berdecia left Berdecia's house with Sears. Blagmon told Rivera that Blagmon produced the gun during the outing with Berdecia and Sears, and Sears began "tussling" with Berdecia. Blagmon shot Sears during the fight with Berdecia and instructed Berdecia to go through Sears's pockets. Blagmon stated that Berdecia passed the money to him, but did not state how much money he received.
Rivera also testified that he, Rivera, eventually moved to a different cell block and that, shortly prior to the move, Blagmon expressed anger because he "felt like the neighborhood [had] really turned its back on him . . . ." Blagmon told Rivera, "I will ...

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