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Fowlkes v. Clarke

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

January 16, 2020

HAROLD W. CLARKE, Respondent.


          Hon. Glen E. Conrad Senior United States District Judge

         Petitioner Brandon Randall Fowlkes, a prisoner proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement under a 2015 judgment from the Pulaski County Circuit Court convicting him of grand larceny. The matter is presently before the court on the respondent's motion to dismiss and Fowlkes' response thereto, making the matter ripe for disposition. For the reasons set forth below, the court concludes that the respondent's motion to dismiss must be granted.

         I. Background

         A. Procedural History

         On October 15, 2013, a Grand Jury impaneled for the Pulaski County Circuit Court issued indictments charging Fowlkes with grand larceny, felony hit-and-run, and misdemeanor hit-and-run. The matter was tried before a jury on November 13, 2014, after which the trial court granted motions to strike both hit-and-run indictments, but refused to strike the grand larceny charge. (R. 215-24.)[1] After deliberating, the jury found Fowlkes guilty of grand larceny and recommended a sentence of nine years in prison. Following consideration of a presentence report, on February 9, 2015, the trial court imposed the nine-year sentence recommended by the jury. (R. 286-87.)

         On February 26, 2015, Fowlkes filed a motion to vacate the conviction based on newly discovered evidence. (R. 301-02.) In particular, he provided an affidavit from Brandon Foutz, the other person arrested near the scene of the car accidents on October 15, 2013. (R. 303.) Foutz stated that he had been allowed into the auto impound lot the next day to see if his cell phone was in another car (other than the car Fowlkes was convicted of stealing). Fowlkes alleged that this showed access to the stolen car by “members of the public, ” who potentially contaminated the scene where Fowlkes' DNA was found. After hearing arguments of counsel, the trial court denied the motion on March 5, 2015. (R. 307.)

         Fowlkes' counsel appealed his conviction and sentence to the Court of Appeals of Virginia. Along with his brief challenging the sufficiency of the evidence to convict Fowlkes and alleging error in the denial of his motion to vacate, counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In his subsequent pro se petition allowed by the court, Fowlkes alleged that the trial court was biased against him and that his attorney was ineffective. (R. 253- 67.) The Court of Appeals affirmed the judgment in an opinion dated March 17, 2016. (R. 19- 22.) Fowlkes' petition for rehearing was denied April 12, 2016. (R. 319.)

         Continuing pro se, Fowlkes then petitioned for appeal to the Supreme Court of Virginia, raising a single issue, that the Court of Appeals had erred in deciding his case without responding to the issues raised in his pro se petition. (R. 6-14.) The Supreme Court of Virginia refused his appeal on December 27, 2016 (R. 290) and denied rehearing on March 23, 2017. (R. 300.) Fowlkes then filed a habeas petition in the Supreme Court of Virginia on December 27, 2017, which the Court dismissed on October 9, 2018. (R. 540-53.) The Court then dismissed Fowlkes' petition for rehearing on January 31, 2019. (R. 691.) The § 2254 petition currently before this court was received on February 20, 2019, with a certificate of posting in the institutional mail on February 15, 2019. (Pet. 84, ECF No. 1.)

         B. Facts of the Case The Court of Appeals of Virginia stated the evidence in the case in the light most favorable to the Commonwealth, the party prevailing at trial:

[O]n February 27, 2013, Deputy Lucas Nester responded to the scene of an accident. He was informed that the occupants of the car had left the scene and were on foot in the area. As Nester neared the scene of the accident, he encountered two men walking. He identified them as [Fowlkes] and Brandon Foutz. Nester apprehended Foutz, but [Fowlkes] fled the scene.
A short time later, the police received a call about another car accident nearby. Jeffrey Hubble's car had been stolen from his residence and was found crashed in a neighbor's yard a short distance away. The police impounded the car and found blood on the steering wheel. DNA testing linked the blood to [Fowlkes].
Two days after the accidents, Nester served warrants on [Fowlkes] and noted he had a fresh cut on his left hand. Nester explained Foutz was in his custody at the time the second accident was reported.

(R. 20.)

         The blood on the center of the steering wheel in the stolen car contained a DNA mixture from two individuals. Fowlkes could not be ruled out as the primary contributor to the mixture; according to the state's expert witness, the odds of the primary contributor being someone other than Fowlkes was less than one in 6.5 billion. (R. 197-99.) She further testified that the second contributor to the DNA mixture could not be identified, because she identified alleles from that contributor for only three chromosomes out of 15. (R. 205.) On a motion to strike the evidence, Fowlkes' attorney argued that the presence of genetic material from a second person in the car created doubt about whether Fowlkes was the person who stole the car; he also argued that the blood could have been transferred from Fowlkes by another person injured in the original car accident with Fowlkes or from law enforcement personnel coming in contact with Foutz, who was also injured. The trial court disagreed with defense counsel's interpretation of the DNA evidence, denied the motion to strike, and allowed the case to go to the jury.

         After jury instructions and closing arguments, the jury retired to deliberate. They were verbally instructed on the presumption of innocence and the Commonwealth's burden of proof on each element of the crime, and the trial court advised that they could find Fowlkes “guilty of grand larceny, guilty of petit larceny, or not guilty of anything. Those are your three choices.” (R. 248.)

         However, the verdict form sent to the jury listed the following verdict choices:

We the jury find the defendant guilty of Grand Larceny as charged in the indictment. ___Foreman
We the jury find the defendant guilty of Petit Larceny as charged in the indictment. ___Foreman
We the jury find the defendant guilty of Grand Larceny as charged in the indictment. ___Foreman

(R. 299.) The third option should have been, “We find the defendant not guilty.” At any rate, the jury foreman signed the top line, indicating that the verdict was guilty of grand larceny.

         C. Petitioner's Claims

         Fowlkes raises the following claims for relief in his 94-page § 2254 petition, which are predominantly the same claims raised in his state habeas petition:

         1. The trial judge was biased against Fowlkes, resulting in a violation of his due process right to a fair trial. (Pet. 10-21, ECF No. 1.)

         2. Fowlkes' conviction was based on insufficient evidence, in violation of his right to due process. (Pet. 23-32.)

         3. An improper jury verdict form violated Fowlkes' due process rights. (Pet. 33-36.)

         4. The trial court and the state's appellate courts violated Fowlkes' right to due process and fundamental fairness by denying his motion to vacate conviction and grant a new trial. (Pet. 38-43.)

         5. The trial court and the state's appellate courts denied Fowlkes the right to counsel by refusing to appoint new counsel for appeal. (Pet. 44-48.)

         6. The state denied Fowlkes' rights to due process and fundamental fairness by failing to provide Fowlkes a free copy of the trial court record in a timely manner. (Pet. 50-53.)

         7. The Court of Appeals of Virginia violated Fowlkes' right to due process by denying his appeal without addressing the arguments in his supplemental (pro se) petition for appeal. (Pet. 54-59.)

         8. Fowlkes' attorney provided ineffective assistance of counsel before, during, and after the trial and during appellate proceedings, by the following acts or omissions:

         a. The attorney filed untimely motions in limine.

         b. The attorney mentioned a “presumption of guilt” during jury selection.

         c. The attorney referred to the stolen vehicle as a “Mitsubishi” instead of a “Hyundai” during opening statements to the jury.

         d. The attorney failed to ask the trial court to review the electronic record of testimony to correct the court's misunderstanding of the DNA evidence during the defense motion to strike.

         e. The attorney failed to move for a mistrial.

         f. The attorney failed to object to a defective verdict form which contained no option for finding the defendant “not guilty.” g. The attorney notified the trial court that he would be withdrawing from the case “due to anticipated Evidence, ” without notifying Fowlkes of this intent, breaching his duty of loyalty to Fowlkes and prejudicing the trial court against him.

         h. The attorney was ineffective in handling the post-trial motion to vacate ...

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