Barnes v. Mathena, No. 3:2011cv00551 - Document 13 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/20/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division LAMAR EDWARD BARNES, Petitioner, v. Civil Action No. 3:11CV551 RANDALL MATHENA, Respondent. MEMORANDUM OPINION Lamar pro se, brings (%x§ 2254 ground Edward Barnes, this the one-year jury Portsmouth, sitting murder, malicious to life the to 28 U.S.C. § moved to dismiss on of § 2254 use of wounding, in Circuit ("Circuit commission of malicious Barnes proceeding limitations 2254 the governing Petition. Barnes has PROCEDURAL HISTORY in Virginia first-degree murder, the prisoner The matter is ripe for disposition. I. A has statute bars state pursuant Respondent federal habeas petitions responded. Virginia petition Petition") . that a and wounding. prison appealed his convictions. a plus Court Court") firearm use of for the City of Barnes of commission of convicted in a the firearm The Circuit twenty-eight during the Court sentenced years. Barnes At evidence this of juncture, Barnes's it is guilt. appropriate The Court to of summarize Appeals of Virginia aptly recited this evidence as follows: On a late afternoon, Mike Artis and Lamar Edward Barnes arrived at Mark King's residence for a visit. King was in the residence with his girlfriend Amy McCrae, Adam Gregory, and Chris Hopkins. King testified he watched television while Gregory, Hopkins, Artis, and Barnes were in a back room playing video games. He testified that he had known all four of the male visitors approximately one and a half to two years and that he knew Barnes only by the name "JoJo." Gregory and Hopkins testified that Artis, whom they had previously known, arrived at King's residence with a person they had not previously met. They identified Barnes in court as the person who accompanied Artis, and Hopkins testified that Barnes was introduced to him as "JoJo." Gregory and Hopkins also testified they went into the back room with Artis and Barnes and, for fifteen to twenty minutes, played video games and smoked marijuana. King later entered the back room, threw a large wad of cash onto a table, and said, "Don't you wish y'all could roll like this?" He then picked up the cash and exited the room, leaving the four male visitors to continue playing video games. Five to fifteen minutes after King exited the back room, Barnes walked to the living room where King was sitting. King testified Barnes said, "Mark, check this out." When King turned to Barnes, he saw Barnes pointing a gun at his head. Barnes then shot him in the head. King did not remember the gun being fired and testified he still has the "bullet lodged in [his] brain." In the back room, Hopkins heard "two loud pops" in quick succession, but he did not recognize the sounds as gunfire and continued playing a video game. Gregory testified he recognized the sounds as and ran from the room with Artis following behind him. Gregory saw McCrae kneeling in the kitchen door and Barnes standing over testified that Barnes put a gun to the gunshots closely front of her. He back of the the McCrae's head and Barnes then shot said, "Don't run from me, bitch." her in the head. Gregory testified he retreated into the back room, locked the door, and yelled to Hopkins, "Get out of the house, get out of the house." As Gregory broke a window pane and attempted to exit the house with Hopkins, Artis broke through the door. Artis pushed Hopkins into Gregory and began punching and stabbing them. A handyman, who had been erecting a fence in the backyard, heard the gunshots and breaking glass. He ran into the residence, saw McCrae on the floor, and noticed a man outside the front door. He then went to the back room and pulled Artis away from Hopkins. The handyman gave chase as Artis fled but was unable to catch him. When police and rescue personnel arrived, they transported McCrae to the hospital. McCrae's baby was delivered by cesarean section. The baby lived, but McCrae Barnes (Va. v. Ct. died. Commonwealth, App. concluding that No. 2743-03-1, May 10, 2005) any 2005 WL (alteration improper evidence in about 1080105, at *l-2 original) . In McCrae's pregnancy was harmless, the Court of Appeals of Virginia further stated: We acknowledge contested at trial. not Barnes, was the of Artis's testimony that the issue of identity was Artis testified that another man, person who shot McCrae. In view that Barnes, his cousin, was not the man who accompanied him to King's residence, the jury had to make a credibility determination. The jury heard Artis testify, however, that he had entered into a plea agreement with the Commonwealth and had identified Barnes as the person who shot McCrae. During the plea agreement process, he admitted Barnes held the gun over McCrae while saying, "Where is the stash? Where is the stash?" He also admitted saying that Barnes showed him a "wad of cash" and that Barnes indicated he had taken the money from King. He further admitted saying Barnes displayed the same gun two days after the killing and told him to identify another man as the perpetrator. In view of this substantial impeachment of Artis's testimony, we do not believe that the record remotely establishes that [McRae's] mother's testimony about the baby shower and her trip to the hospital had the effect of prejudicing the jury into believing that Barnes, and not some other person, committed the crimes. The positive evidence of Barnes's identity was overwhelming. King had known Barnes for almost two years, and he identified Barnes as the person who entered the residence with Artis and shot him. In addition to King's identification, Gregory and Hopkins readily identified Barnes at the trial. While Gregory and Hopkins could not identify Barnes in a photographic lineup prior to trial, the jury heard evidence that Barnes had been in the residence for at least twenty minutes prior to the murder. During that time, Barnes was in the presence of Gregory and Hopkins and was playing video games in a room with them. In view of this overwhelming evidence of identity, we cannot say the testimony by McCrae's mother [about her daughter's pregnancy] was so impressive in this case as to prejudice the jury and to cause the jury to mistakenly believe Barnes was the criminal. Id. at *3-4. After Barnes's trial concluded, on October 7, 2003, Barnes moved for a new trial on the grounds that the prosecution failed to disclose that a special prosecutor nolle prosequied two drug charges against King after King had testified at Barnes's trial. The Circuit Court denied the motion, but requested that the special prosecutor from the City of Chesapeake, Ms. Shelton, who had handled King's case, appear before the Circuit Court to answer questions.1 In Barnes's trial, Almetia Fields and Douglas Ottinger represented the Commonwealth Attorney's Office for the City of 4 At the hearing on October 17, 2003, Mr. Ottinger, from the Commonwealth Attorney's Office for the City of Portsmouth stated that his "office had decision-making on (Oct. Mot. 17, 2003 charges were Artis, had this were Ms. based and Shelton testify. difference If [King] Mr. 5.) been the with informant proved "There was to no foregoing information, stated Barnes's on be which an secret had testified or not, [on] our decision." Shelton charges Shelton because had Ms. King's Ms. prosequied Artis stated, contact with Tr. nolle Michael no the whatsoever." that King's co-defendant, King's unreliable deal in with charges witness. [King] to it would have made no (Id. at 8-9.) After hearing the the Circuit Court again denied the motion for a new trial.2 Portsmouth. The Commonwealth Attorney's Office for the City of Portsmouth requested that an assistant commonwealth's attorney from the City of Chesapeake handle any criminal charges against King. Ms. Fields explained that when her office has "a witness in a case who may also have criminal responsibility we get a special prosecutor." (Oct. 7, 2003 Tr. 15.) 2 The same Circuit Court judge who denied the motions for a new trial had heard King's trial testimony. At trial, King testified that he did not have any doubt that Barnes was the person who had shot him. (July 31, 2003 Tr. 117.) A. Direct Appeal On September refused Barnes's No. 051198 B. 28, 2005, petition (Va. Sept. dismissed corpus the Dep't Corr., appealed No. v. Virginia Commonwealth, 2007, July 20, 21, on decision March the 6, the C. On petition 071300 Johnson, the (Va. Sept. with 9, the Court 2010, Circuit Dir. Sup. Supreme to of timely R. Court of Va. Barnes Virginia. On file the dismisse[d] Dep't Corr., Ct. Court Dir. 6, 2007). No. 071300 5:17 (a) (1) ).3 Virginia Barnes v. Johnson, 21, Second State Habeas December Mar. v. [Supreme Court of Virginia] Barnes's petition for rehearing. No. Ct. Circuit Barnes "failed (citing Va. 2007, The 2007. Supreme Barnes Barnes v. 2007) Court. (Va. Cir. to because Barnes filed a petition for a writ Circuit CL06-2923 the petition." September the petition that 20, Corr., Barnes of 28, 2005). in petition for appeal, (Va. Court First State Habeas habeas July Supreme for appeal. On September 27, 2006, of the Dir. On denied Dep't 2007). Petition Barnes Court. filed In a second this state petition, habeas Barnes 3 "In every case in which the appellate jurisdiction of this Court is invoked, a petition for appeal must be filed with the clerk of this Court ... in the case of an appeal direct from a trial court, not more than three months after entry of the order appealed from . . . ." Va. Sup. Ct. R. 5:17(a) (West 2007). 6 alleged that the prosecution had violated his rights by failing to disclose that a key witness, Mark King, was given immunity from prosecution in return for testimony against Barnes. asserted that January 13, did 2010. February 17, No. he discover the basis for this claim until The Circuit Court dismissed the petition on 2011. CL10-2756 not Barnes Barnes (Va. Cir. v. Ct. Watson, Feb. 17, Warden, 2011). Va. Dep't The Corr., Circuit Court found, The petition was untimely filed. Virginia Code 8.01-654(A)(2) provides that a habeas petitioner must file his petition within two years from the date of final judgment in the state trial court or one year from the date of final disposition of the direct appeal in state court, whichever is later. In this case, then, Barnes had until September 28, 2006, to file his habeas petition in state court, but his present petition was filed nearly four years after that Id. at date. 2 (internal decision. refused On citations July Barnes's 28, omitted). 2011, petition for the Barnes Supreme appeal. appealed Court Barnes v. of that Virginia Watson, Va. Dep't of Corr., No. 110922 (Va. July 28, 2011). D. On Federal August this Court. asserts Habeas 14, Petition 2011, Barnes filed (§ 2254 Pet. 15. )4 entitlement to his § 2254 Petition in In the § 2254 Petition, Barnes relief upon the following ground: 4 The Court deems the petition filed on the date Barnes swears he Houston v. placed Lack, the petition 487 U.S. 266, in 276 7 the (1988). prison mailing system. "Failure witness of the Commonwealth immunity testimony from violating Attorney prosecution petitioner['s] to in due disclose return for process its key favorable rights as made applicable to the states by way of the Fourteenth Amendment.[5]" (Br. Supp. § 2254 Pet. 4 (capitalization corrected).) II. A. ANALYSIS Statute of Limitations Respondent contends that the federal statute of limitations bars Barnes's Effective claim. Death Section Penalty Act 101 of ("AEDPA") the Antiterrorism amended 28 U.S.C. § and 2244 to establish a one-year period of limitation for the filing of a petition for pursuant to U.S.C. 1. a writ the § 2244(d) of habeas judgment of corpus a state by a person court. in custody Specifically, 28 now reads: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the (A) (B) latest of the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; the date on which the impediment to filing an application created by State action in violation of the Constitution 5 "No State shall . . . deprive any person of life, liberty, or property, amend. XIV, without due process § 1. 8 of law. . . ." U.S. Const, or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; (D) 2. or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). B. Commencement of the Statute of Limitations Under 28 U.S.C. Barnes's 2005, § 2244(d)(1)(A) judgment became final on Tuesday, December 27, when the time to file a petition for a writ of certiorari expired. Hill v. ("[T]he one-year Braxton, 277 limitation F.3d period 701, 704 begins (4th running Cir. when 2002) direct review of the state conviction is completed or when the time for seeking direct review § 2244(d)(1)(A))); certiorari should has see be expired Sup. filed Ct. within . . R. . ." (citing 13(1) ninety days 28 U.S.C. (petition of entry for of judgment by state court of last resort or of the order denying discretionary review). September Petition. 27, 2006, The when See 28 U.S.C. limitation ran for 273 Barnes filed his First days, State until Habeas § 2244(d)(2). The limitation period remained tolled until March 6, when the Circuit Petition. that Court dismissed Although Barnes appeal did not Barnes's First pursued an appeal Habeas of that decision, the limitation period because the appeal was not "properly filed." 28 U.S.C. § 2244(d)(2);6 see Hines v. Va. Jan. Johnson, 28, 2009) state's denial of petition for further toll State 2007, No. 2:08cvl02, (precluding 2009 WL 210716, tolling the time at *2 (E.D. between the a habeas petition and the ultimately untimely appeal of that decision). The limitation period then ran for more than four additional years before Barnes filed his § 2254 Petition.7 Therefore, unless Barnes demonstrates that 6 To qualify for statutory tolling, an action must be a (1) properly filed (2) post-conviction or other collateral review of (3) the pertinent judgment. 28 U.S.C. § 2244(d)(2). [A]n application is ^properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. Artuz v. omitted) Bennett, 531 U.S. 4, 8 (2000) (internal footnote (citing cases). 7 Because the Virginia courts found that the state statute of limitations barred Barnes's 10 Second State Habeas Petition, either a belated equitable commencement tolling renders his of the petition limitation timely, period statute the or of limitation bars the § 2254 Petition. C. Belated Commencement As pertinent here, on "the date on the statute of limitations may commence which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). This belated commencement provision protects petitioners when they could not have brought their claims earlier. limitation period through due predicate legal begins diligence for significance." at *2 Varner, 384 F.3d 69, 359 (E.D. (7th Cir. Va. 74 given Pet. January immunity for 14.) claim, Mar. (3d Cir. discovered, not when Ray, 11, petitioner No. 2008) 2004); he the 3:07CV266, (citing Owens v. their 2008 WL Schlueter v. Boyd, 235 F.3d his under § 2244(d) (1) (D) , the limitation "when 13, Petitioner 2010 from received, AMark testimony against In that affidavit, DiGuglielmo, or factual recognizes King' via 544 U.S. 408, mail, that Petitioner." he an was (§ 2224 King swears, that petition does not qualify for statutory tolling. v. knows, the 2000)). period should commence dated have McKinney v. Barnes contends that, affidavit run when the could a potential 652111, 356, to "Under § 2244(d)(1)(D), 417 11 (2005). See Pace On or about, April 4th 2002 I was shot in the head and my girlfriend Amy McRae was shot and killed. When I came out of the hospital I had no memory due to the head injury. I was led to believe that Lamar Barnes shot me and Amy, so I was taken to the homicide department and shown a page of pictures of about 6 guys and Lamar[']s picture was on it. I picked him and said he shot me, and at the time I really believed he did. I believed it for a long time until I started remembering stuff then I had doughts [sic] . I told Detective Lodge I thought we had the wrong person and he got mad. He told Almesha [sic] Fields and she got mad at me. She was the Commonwealth Attorney. They decided to charge me and prosecute me for the drugs they found in my house at least that [is] what they said, they did it to use against me to force me to keep after Lamar Barnes. But to be honest I still wasn[']t 100% sure that Lamar was because my memory was still not back. inocent [sic] So when they charged me they told me if I kept testifying against Lamar theyed [sic] make the charges go away. Which they did after Lamar was convicted. But my memory of that day did come back in time and I'm 100% positive that not only did Lamar Barnes not shoot us, he was never at our home that day. I was shot by Bobby Petty and so was Amy McRae. I never had any intent to lock up a[n] inocent [sic] man. And for years now I written [sic] people to help Lamar Barnes. I[']ve met with the ATF taken lie detectors and begged them to help Lamar. When all this happened I was injured and hurt over the loss of Amy but everyone even her family got mad and turned on me when I said I thought Lamar was inocent [sic] . But when all of my memory came back it was to [sic] late Lamar was already convicted and all I can do is keep trying to help him and ask people to help him. I'm sorry its [sic] taken so long but I in federal prison and I've been trying. Portsmouth used Commonwealth threats to scare Attn all [sic] of us Office just knew to get and a conviction of an inocent [sic] man. Lamar Barnes needs to be freed and Bobby Petty need[s] to go to prison! 12 (Br. Supp. § 2254 Pet. Ex. A Barnes's previous allegation, the (capitalization corrected.) motions Court for doubts a new whether trial Barnes's Given raising receipt this of the Mark King affidavit entitles Barnes to a belated commencement of the limitation 868, 871 period. (7th restart the . . . . As Cir. time a See when matter v. ("Section 2005) Escamilla 2244(d)(1)(D) corroborating of law, new Jungwirth, evidence evidence becomes 426 F.3d does not available supporting a claim actually made at or before trial cannot form the basis of a new period under § 2244(d)(1)(D).");8 see also Deloney v. McCann, 229 F. App'x began 419, running giving rise to support it."). 422 (7th Cir. when [the his claim, 2007) petitioner] ("The became not when he Nevertheless, it statute of limitations aware of the facts obtained the evidence to is unnecessary to resolve this issue. Even assuming King's assertion (that Ms. Fields used criminal charges brought against King as leverage to compel King to testify against Barnes) constitutes a new factual predicate 8 In a letter dated August 11, 2003, Barnes complained to the Circuit Court that, "the victim Mark King was forced to testify against me because of his drug charges that he had pending. cohersed Mark King and Micheal Artis was forced or even [sic] to testify and lie on me to better there [sic] self for a plea bargain for pending charges." Commonwealth v. Barnes, No. CR02-2944, Cir. Ct. R. 137 (Va. Cir. Ct. filed Aug. 15, 2003) . 13 under § 2244(d)(1)(D), Barnes's § 2254 Barnes Petition. acknowledged affidavit, at by statute In his that least Specifically, the he the Barnes limitation still Second State Habeas knew of time swore of the King that Petition, substance executed "the bars of King's the affidavit. factual predicate supporting his claims was discovered through the exercise of due diligence on January 13, 2010 See Exhibit A." of Petition for Writ of Habeas of Corpus, Barnes Dec. v. Watson, 9, 2010) however, did January 13, No. CLlO-10-2756-00 (internal not file 2010. quotation his Rather, § 2254 577 R. Brief in Support Preliminary Statement, 14 (Va. Cir. Ct. mark omitted).9 Petition within filed Barnes, one year of days elapsed between January 13, 2010 and Barnes's filing of his § 2254 Petition in this Court on August 14, 2011. Accordingly, a belated commencement of the limitation period does not render the § 2254 Petition timely. D. Equitable Tolling Equitable § 2254. tolling may See Holland v. Nevertheless, the apply Florida, Supreme to petitions 130 S. Court has Ct. under 2549, "made 28 2560 clear U.S.C. (2010). that a 'petitioner' is 'entitled to equitable tolling' only if he shows *(1) diligently, that (2) that he some has been pursuing his extraordinary circumstance 9 Exhibit A is King's Affidavit. 14 rights stood in his way' and and prevented timely filing." at 418). burden Id. at 2562 (quoting Pace, 544 U.S. An inmate asserting equitable tolling "'bears a strong to show specific facts'" which demonstrate that he fulfills both elements of the test. Yang v. Archuleta, 525 F.3d 925, 928 Brown 512 1304, 1307 (11th Cir. (10th Barnes Moreover, Cir. does the circumstance 2008) not argue does prevented year Affidavit. If of v. Barrow, F.3d 2008)). record within one (quoting entitlement not Barnes the to suggest from that filing discovery of the Barnes had any equitable an his § tolling. extraordinary 2254 Petition substance of the uncertainty as to whether King his Second State Habeas Petition would qualify for statutory tolling under § 2244(d)(2), he should have filed "a 'protective' petition" with this Court and asked the Court "to stay and abey the federal habeas exhausted." Pace, 544 U.S. 278 proceedings 269, innocent. U.S. at 416 state (citing remedies Rhines [were] v. Weber, (2005)). Additionally, limitation 544 until period Even the record on the if actual does ground not justify tolling that Barnes is innocence provided a the actually basis for equitable tolling,10 Barnes has not submitted evidence of the 10 See O'Neill v. Dir., Va. Dep't Corr., No. 3:10CV157, 2011 WL 3489624, at *6 (E.D. Va. Aug. 15 9, 2011) (citing cases and requisite quality to support such a claim. No. 3:09cv659, (citing Weeks 1997); A v. Feaster 1999)). 2010 WL 5476755, Bowersox, v. of evidence whether trustworthy [that Delo, be eyewitness 513 U.S. Given actual it supports the the 298, 56 timing (E.D. 1342, F. Supp. innocence accounts, or of Va. Dec. 30, 600, requires not that constitute King's "new of King's physical affidavit11 affidavit is evidence United 616 Lighty, ("Post-trial recantations of suspicion.") reliable evidence, innocence]." not of innocence. utmost Md. evidence Schlup v. (1995). "reliable" v. (D. scientific critical support a claim of actual States Cir. 610 and King's statements implicating Barnes in the murder of McCrae, concludes 2010) (8th 1352-53 2d exculpatory claim 324 *5 F.3d 119 Beshears, claim at See Hill v. Johnson, F.3d the Court "trustworthy" innocence Schlup, 321, 375 prior and does sufficient 513 U.S. (4th at Cir. to 324; 2010) testimony are looked upon with the (internal quotation indicating that actual innocence tolling the limitation period). does marks not omitted), provide a cert. basis for 11 King waited many years after Barnes's trial and until after King himself was incarcerated to produce the affidavit. See House v. Bell, 547 U.S. 518, 537 (2006) (observing that in assessing a claim of actual innocence the Court "may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence")(internal quotation marks omitted). 16 denied, 132 S. recantations Court's Ct. by 451 (2011).12 convicted admonition that To accept such commonplace criminals the would quality of ignore evidence the Supreme necessary to support a claim of actual innocence "is obviously unavailable in the vast majority of cases." Calderon v. Thompson, new reliable Carter (E.D. v. Va. convicted Schlup, 523 U.S. 538, 559 evidence of innocence Virginia, No. Jan. 2010) ("'It 26, accomplices is 3:09CV121-HEH, to is assume 513 U.S. (1998) a at see (emphasizing that "rarity"); 2010 324; WL see 331758, not unusual for one the entire fault also at of and *8 two thus exculpate his codefendant by the filing of a recanting affidavit or other statement.'" 228 (Tex. Crim. App. to Dismiss will be (quoting Drew v. 1987))). granted. State, Accordingly, 743 S.W.2d 207, Respondent's Motion The § 2254 Petition will be denied and the action will be dismissed. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA") . 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial of 12 that At trial, the prosecution introduced substantial evidence Barnes's family members had threatened and pressured Artis to change his testimony and allege that Bobby Petty had committed the crimes instead of Barnes. (See, e.g., Aug. 1, 2003 Tr. 124.) Additionally, Bobby Petty did not match the physical description of the individuals the handyman saw fleeing from King's residence. 17 a constitutional requirement is right." satisfied debate whether (or, should have issues presented been for only that resolved were proceed further.'" 28 or evidence consideration when in a to Slack v. McDaniel, 463 U.S. that in this matter. agree different 'adequate suggests § 2253(c)(2). "reasonable matter, (quoting Barefoot v. Estelle, law U.S.C. Barnes A the manner or 529 U.S. 880, is jurists that) deserve could petition that encouragement 473, 893 n.4 entitled certificate This 484 to (2000) (1983)). to the No further of appealability will therefore be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Barnes and counsel for Respondent. An appropriate Order shall issue. /s/ UP Robert E. Payne Senior United States District Judge Richmond, Virginia Date: p. (fat 19 ( 10ITS
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