United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
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.
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.
Jury Trial and Direct Appeal
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.)
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.)
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.)
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.(Id. at 4.)
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
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.)
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
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.)
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
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 ...