Randall v. Clarke, No. 3:2014cv00562 - Document 27 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/4/2015. Copy of Memorandum Opinion was distributed as directed. (sbea, )
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Randall v. Clarke Doc. 27 1 u IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT AUG - 6 2015 OF VIRGINIA Richmond Division CURK, U.S. niSTRICT COURT MORRIS LEE RANDALL, JR., RICHf.iOND. VA Petitioner, V. Civil Action No. HAROLD W. 3:14CV562 CLARKE, Respondent. MEMORANDUM OPINION Morris Lee proceeding pro § 2254 se, {"§ 2254 convictions in the ("Circuit Court"). Randall, brings Jr., this Petition," Circuit a Virginia state petition pursuant ECF Court of No. the 1) to prisoner 28 U.S.C. challenging County of his King William Respondent has moved to dismiss, inter alia, on the ground that the one-year statute of limitations governing federal habeas petitions bars the § 2254 responded. The matter is ripe for disposition. that follow, and the § On degree Randall has For the reasons the Court will grant Respondent's Motion to Dismiss 2254 Petition will be denied. I. A. Petition. PROCEDURAL HISTORY State Court Proceedings September felony 1, murder, 2006, a jury attempted robbery, use of a offense, and possession of a convicted robbery, Randall of first- conspiracy to commit felony, second firearm in the commission of a firearm by a person convicted of a Dockets.Justia.com violent felony, at (Va. 1-2 the Commonwealth v. Cir. Circuit Ct. Court incarceration. Sept. at refused Commonwealth, No. Prior to 22, 2007, 071329, 2 007, Johnson, Randall pending the the at 1 (Va. No. 2008, resolution of for Jan. Randall v. (Va. moved his Court appeal. 8, Randall v. 2008) . on February writ of habeas corpus Cir. to direct dismissed Johnson, No. Ct. filed withdraw appeal. the the On Feb. (Va. 22, petition August petition CL07-22 2009, Randall filed his Cir. 22, without Ct. Feb. Jan. denied 8, the Cir. 2009) . petition. Ct. filed denied the petition, Respondent's second petition for in the Circuit Court. of Habeas Corpus at 1, Randall v. Johnson, the of 2007) . writ of habeas corpus (Va. years the Supreme Court of his direct appeal, CL07-22 subsequently On January 8, Ct. 2006, Petition for Writ of Habeas Corpus at 1, Circuit prejudice. 22, forty-seven Randall filed a petition for a v. 2007). to petition conclusion of in the Circuit Court. Randall CR06-20(00)-(04) , On September 27, Randall On January 8, Randall's the 2006). No. 2-3. Randall appealed. Virginia 27, sentenced Id. Randall, On September Randall Sept. 2, Randall Motion to v. 2, No. 2009, Johnson, 2009.) Petition for Writ CL09-01 the No. After the (Va. Circuit CL09-01, Circuit Cir. Court at 28 Court filed his untimely reply brief to Dismiss. The Circuit Court noted that Randall's reply was tardy, but nevertheless, and again denied Randall's habeas petition. No. CL09-01, an appeal. 01 (Va. at 1 (Va. Cir. Ct. Sept. Notice of Appeal at 1, Cir. Ct. filed Sept. 30, 23, Randall v. 2009). Randall v. 2009), reviewed it, Johnson, Randall noted Johnson, No. CL09- but failed to pursue his appeal in the Supreme Court of Virginia. B. Federal Habeas Petition On July 31, Court. {§ 2014, Randall filed his § 2254 Petition in this 2254 Pet. 15.)^ In the § 2254 Petition, Randall argues entitlement to relief upon the following grounds: Claim One: Counsel rendered ineffective assistance by "fail[ing] to investigate Floyd Green, Eric Berkley, and Sydney Travors to determine if matters of be (§ 2254 Pet. defense could developed." 6.) Counsel rendered ineffective assistance by "fail[ing] to locate and interview Charles Claim Two: Surles to determine if could be developed," matters of defense (Id. at 7.) Counsel rendered ineffective assistance by "fail[ing] to investigate and obtain the telephone records of alibi witness Hattie Claim Three: Mae Williams." (Id. at 9.) ^ The Court deems the petition filed on the date Randall swears he Houston V. placed Lack, the petition 487 U.S. 266, in 276 the (1988). prison mailing system. Claim Four: Randall "based is on actually trial innocent, counsel's adequate investigation." II. A. and was failure to convicted conduct an (Id. at 11.) ANALYSIS Statute of Limitations Respondent contends that the federal statute of limitations bars Randall's claims.^ Section Effective Death Penalty Act 101 of {"AEDPA") the amended Antiterrorism 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 a corpus state by a court. person 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 latest of-- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action or in laws violation of of the the United Constitution States is removed, if the applicant was prevented from filing by such State action; (C) the date on which right asserted was the constitutional initially recognized ^ Randall freely admits that he "failed to exhaust claim[s]" in state court but argues that his actual excuses his procedural default (§ 2254 Pet. 7) untimeliness of his petition. (Id. at 14.) [his] innocence and the 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. Conanencement of U.S.C. Randall's when the § the Statute of Limitations Under 28 2244(d)(1}(A) judgment became time to file a expired. Hill v. Braxton, ("[T]he one-year final on Monday, petition 277 limitation for F.3d period a 701, writ 704 begins April of 7, 2008, certiorari (4th Cir. running when 2002) direct review of the state conviction is completed or when the time for seeking direct review has § 2244 (d)(1)(A))); certiorari should ^ be expired Sup. filed Ct. within . . R. . (citing 13(1) ninety 28 U.S.C. (petition days of for entry of judgment by state court of last resort or of the order denying discretionary review). until January habeas petition. 8, 2009, The limitation period ran for 275 days, when See 28 U.S.C. Randall filed § 2244(d)(2). his second state The 2009, limitation period when the petition.^ Circuit Court Randall the and additional half Petition on plausible years 31, for appeal before September Randall's of Randall belated commencement filed not of 23, habeas decision. for more does § 2244(d)(1)(B)-(D) second that Randall 2014. a period under 28 U.S.C. Instead, no until limitation period then ran July basis tolled dismissed filed Accordingly, a remained than four his § 2254 suggest the any limitation or equitable tolling. he argues that his actual innocence excuses his failure to file in a timely manner. III. A. Supreme basis for limitations. (2013) a INNOCENCE Legal Standard The ACTUAL Court overcoming See through recognized the McQuiggin (explaining that gateway has expiration v. of of Perkins, 133 "actual innocence, which a petitioner impediment is a procedural bar statute actual limitations"). . . "Claims . or of the S. Ct. , actual pass as statute 1924, if proved, may , innocence a of 1928 serves as whether the . expiration of the innocence, whether presented as freestanding ones or merely as gateways to excuse a ^ The limitations period may have started to run again on September 3, 2009, the day after the Circuit Court initially denied Randall's petition. Nevertheless, because Randall's § 2254 Petition is more than five years late, the Court assumes without deciding that the limitations period began to run again on September 24, 2009. procedural default, Greene, 155 Here, the lenient 396, Court Court to to 404 reviews standard subscribing the F.3d should not be granted casually." for {4th Cir. Randall's gateway Randall's consider the (citations arguments actual actual 1998) of his omitted). under innocence innocence merits Wilson v. the claims, claims because would otherwise more permit time-barred habeas petition. A gateway claim requires a petitioner to present "new reliable evidence—whether i t be exculpatory scientific evidence, trustworthy eyewitness accounts, that was not presented at trial." 324 (1995). the vast majority producing new, Court Schlup v. Delo, 513 U.S. 298, "Because such evidence is obviously unavailable in rarely successful." the or critical physical evidence- cases, Id. claims If a of actual innocence are petitioner meets the burden of truly reliable evidence of his or her innocence, then incriminating of considers and "'all exculpatory, the evidence,' without regard old to and new, whether it would necessarily be admitted under 'rules of admissibility that would govern at trial'" and determines whether the has met the standard for a gateway claim of innocence. 538 (2006) (quoting Schlup, petitioner House v. Bell, 547 U.S. 518, 513 U.S. at 327- 28) , The Court must determine "whether ' i t is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Sharpe v. Bell, 593 F.3d 372, 377 {4th Cir. 2010) (quoting Schlup, 513 U.S. at 327-28) . "The Court need not proceed to this second step of the inquiry unless the petitioner first supports his or her claim with evidence of the requisite quality." 5476755, at *5 Bowersox, 119 Beshears, 56 "actual {E.D. F.3d P. innocence" See Dec. 600, omitted) of 30, 610 No. (citing Cir. Md. (D. 1997); and Thompson, (internal justice 523 quotation exception is 2010 WL Weeks 1999)). innocence v. 3:09cv659, 2010) (8th factual Ca1deron miscarriage Johnson, 1352-53 2d means (citations ("(T]he Va. 1342, Supp. insufficiency." (1998) Hill v. v. Feaster v. Moreover, not just U.S. legal 538, marks 559 omitted) concerned with actual as compared to legal innocence.") B. Compelling Evidence Exists Of Randall's Guilt While the evidence against Randall introduced at trial was not overwhelming, support trial the the jury's lasted witnesses compelling verdict. several days, who placed Randall shooting, and involved evidence The of his Court involved in West notes the Point extensive guilt existed that Randall's testimony around to of the many time cross-examination of and attempts to discredit the Commonwealth's witnesses by Randall's trial counsel. only witness Randall Randall's as The jury heard testimony from Forrest Scott, to the the shooting of shooter. co-conspirators Craig Robinson, Darryl in the 8 Moody plan to and rob who the identified Jerrard Crump, Forrest Scott, testified that robbing Scott was Randall's idea, had planned the robbery during the course of the three men the day, and that they picked Randall up in Richmond and brought him to West Point where Randall remained until Moody and Randall approached Scott to rob and him. Moody's saw Randall Rosemary Davis, sister-in-law, house mate Trevonda King, of Forrest testified Scott's, that they in West Point with Moody and Crump around the time of the shooting. at a The Court now turns to the evidence presented trial. C. Suimnary Of Evidence Of Randall's Guilt On the evening of October 14, cousin were sitting in a 2005, Forrest Scott and his car smoking marijuana in a vacant lot near Scott's house at 1420 Kirby Street in West Point, and Scott Street. saw two (Aug. 30, Scott testified that people 2006 walking Tr. 202, " [o]ne of past 208, the car 213, [the two men] Virginia, toward 215, 224, 14 th 251.) looked like Darryl [Moody] [''] and he had a black [ski] mask on" and the second "dude was brown skinned. a plaid jacket on, He was black about five, jeans." around six feet. (Aug. 30, 2006 Tr. Scott could tell i t was Darryl Moody because "he walk[s] limp." cousin (Aug. 30, 2006 Tr. 214.) Scott's then He had 213.) with a left. Scott acknowledged that he "knew" Darryl Moody (Aug. 30, 2006 Tr. 227) , as he had sold drugs to Moody for a couple of years. (Aug. 30, 2006 Tr. 212.) Craig Robinson arrived, wash. (Aug. 30, At some 2006 Tr. point, Robinson. {Aug. (Aug. 259.) Robinson wash and Floyd Green, marijuana. and Scott and Robinson left for the car Scott Scott's cousin, 30, 30, and 2006 Tr. 2006 Tr. returned from Tr. 215-16.) After car asked Scott if he had any 258-59.) Scott sent him to 259.) Scott and Robinson walked to Hardee's to get chicken and a drink around 9:10 p.m. 2006 the buying food at Hardee's, (Aug. 30, Scott and Robinson walked back to Scott's car and Robinson got in on the passenger side. doors were open. Scott stood on (Aug. 30, Approximately five the driver's later, or approximately to thirty minutes after Moody first walked by, and asked Robinson for marijuana as he sat (Aug. did (Aug. not have any. 30, 2006 Tr. 30, 2006 218), 30, 2006 Tr. and then Tr. twenty man walked up in the car with his 249.) 218.) . . Robinson The . man then (Aug. 30, 2006 and then placed the gun near Robinson's head. 219.) [Robinson] charged him and the gun went off." 2006 Tr. 218-19.) 30, 2006 220.) Tr. gun that was not 220-21.) (Aug. The man "said I'm going to shoot you if - 30, 2006 Tr. a 218-19, "pulled out the gun and racked the chamber Tr. Both car 2006 Tr. 217.) minutes feet on the ground. side. (Aug. Scott heard only one shot fired. Scott tried to reach for his loaded and was between the seats. Scott .380 (Aug. caliber (Aug. "ducked around beside the car and 10 - 30, [then he] got up. gone." [Robinson] (Aug. 30, was 2006 Tr. laying on the ground, 219.) ground and was not moving. Robinson was face first on the (Aug. 30, Just prior to the shooting, (Aug. the 226.) 222.) After (Aug. 30, 2006 Tr. 226.)® the shooting. Moody was gone. as 2006 Tr. Scott saw Darryl Moody standing across the street behind a van. identified Randall the dude was 30, 2006 Tr. Scott shooter in the courtroom. (Aug. 30, (Aug. 2006 Tr. 2006 Tr. 223.)® Scott 229.) called Scott Virginia 911 spoke State explained that brown skinned. after with Police the of shooter was (Aug. shooting. Special Bureau He had, and corn rows. the like, 30, Agent Criminal about J. Spencer of the Investigations and "six feet, 'Chinky' 2006 Tr. A. eyes" 228, 30, or 254.) slim. 231.) shooter because 2006 Tr. One person in the first he 231-32.) had braids Several third photo array to Scott. and days Scott explained (Aug. 30, photos again because he eyes." Agent recalled (Aug. 30, Spencer brought a 2006 Tr. Scott did not identify anyone in the array. the (Aug. 30, lineup looked like the "'Chinky' later, was "Chinese eyes," that Agent Spencer first showed him two photo arrays. 2006 Tr. He 233.) At first, Scott asked to see that the shooter had ® Scott also testified that earlier in the week he observed Moody driving by Scott's Tr. house several times. (Aug. 30, 2006 250.) ® At the time of the shooting, Scott did not know Randall's name. (Aug. 30, 2006 Tr. 223.) 11 braids, (Aug. and none 30, of 2006 Tr. the shooter, confirmed the individuals 234.) in the photos had braids. Scott then picked out an individual as although that individual no longer had braids, that the individual in the photograph was the 235.) Scott testified that he was was the individual who shot Robinson. Darryl Moody testified that 30, certain that Randall (Aug. he same {Aug. person Scott identified in the courtroom as Randall. 2006 Tr. and 30, and 2006 Tr. Jerrard 270.) Crump were friends and neighbors and they saw each other nearly every day. (Aug. 30, 2006 Tr. 285.) Moody had known several years and Moody purchased drugs 2015 Tr. 286.) Forrest Scott for (Aug. 30, from Scott. Moody met Morris Randall through friends two weeks prior to the shooting and he knew him only as (Aug. 30, 2006 Tr. 288.) On October 14, 2005, about "Dee." Moody and Crump went to Eric Berkley's house and Moody spoke with Berkley about robbing Forrest Scott. Berkley's role conversation Forrest out in the (Aug. of (Aug. 30, the 2006 Tr. robbery 2006 house." Although Berkley was 30, Tr. (Aug. was 324, to 401-02) 30, 400-01, engage and 2006 to Tr. involved in planning the 326, 412-13.) from Randall. (Aug. At 30, some point. 2006 Tr. 12 Crump 287, 289, received 325.) Scott "[get] 324-25, robbery, "never showed up" to commit the planned robbery. Tr. 406-07.) (Aug. a in Mr. 327.) Berkley 30, 2006 phone call Crump confirmed that he and Moody met on October 14, to discuss going to West Point to rob Forrest Scott. 2006 Tr. 374-75.) Crump met before the shooting, Tr. to 377-78.) rob (Aug. through Moody a and knew him only as "Dee." because he "needed 1100 and 378, 30, Crump 418.) and Street (Aug. there." picked 293, Randall Randall 30, (Aug. and 381-82.) Moody 2006 Tr. up 30, 2006 Tr. (Aug. mask. 2006 Tr. (Aug. 30, Randall called Crump assumed the 382-83.) pleading to at pay East a bill." was Instead, 30, on 2006 Tr. case 332.) to pick that his from 297.) them up, Crump Point. (Aug. to 13th The hat had no and at (Aug. picked wasn't case They knew who he was." Street A few minutes later. taken place. he 15th Moody wore a hat with no bill 2006 Tr. when pleading in West Mall 382), but "[t]here was nobody out 294.) 30, robbery had his Gate (Aug. (Aug. 30, 30, them going stating that up, home that they 2006 Tr. 30, 2006 13 Tr. 297-98, face Moody and time. 2006 Crump Tr. "Randall broke. Crump then drove to Moody's sister-in-law, home 2006 Crump parked the car on 15th walked 294, "pulled down." him. 30, Crump drove to West Point where Scott lived. 2006 Tr. Street Moody few days (Aug. dollars Laburnum in Henrico County around 6:30 p.m. (Aug. 30, 2006 Tr. 375, 379.) Moody 290-91, (Aug. Crump explained that Randall came up with the idea Scott 30, Randall 2005 had And 297, was Mr. recognized 383.) Trevonda King's, 384-85.) King confirmed that Moody, her house (Aug. around 30, 2006 agitated or black Crump, 8:00 Tr. p.m. black and 345-46, nervous. pants, and a man she did not know came to 353.) (Aug. shirt, 30, and wore an army fatigue jacket, braids. (Aug. Randall in 30, the Crump and Moody. The back by men stayed vacant "proceed with hat, 347, man and and the Randall lot only a (Aug. few of 301, the 388.) house 2006 Tr. (Aug. robbery." Kirby talk street near a van. Forrest Point. (Aug. Scott (Aug. Street 30, to (Aug. 30, Rosemary Davis as third man her house with 30, 2006 and and 300, then drove 385-86), Tr. 386.) (Aug. 30, to Crump 2006 Tr. the car and walked to the 15th Street. (Aug. 30, 2006 Randall crossed the street and "went on the side to in the van. seemed Moody wore the to minutes 30, and Moody got out of intersection of Tr. Crump King identified came parked the car in the same spot as earlier. 300.) minutes and his hair was in 353.)"' who ten 346-47.) fatigue hat, the about (Aug. 30, 2006 Tr. 348.) three the Tr. black 345, as for Moody 2006 a a 2006 Tr. courtroom stayed somebody" 30, 2006 Tr. 2006 Tr. testified and his 2006 Tr. but Moody 302.) stayed across the Rosemary Davis was 303, 359.) that family 358.) she lived in on 142 0 On the the same house Kirby Street in West evening Robinson was Crump testified that Randall wore dark jeans and boots, a fatigue jacket, and a black cap, and did not have braids. (Aug. 30, 2006 Tr. 414.) 14 shot, near dark, a friend picked parked on 14th and Kirby Streets. Davis up in (Aug. 30, a van 2006 Tr. that 359, As Davis got inside the van and fastened the seat belt, was 362.) she saw Moody on the sidewalk near the passenger-side window across the street from the vacant lot. made a a {Aug. 30, (Aug. 30, 2006 Tr. 364-65.) boy running from across here and met they ran down towards 15th Street 365.) The man "ran Forrest Scott and Tr. 367.) or something, across or plaits, Tr. van asked had 2006 that pulled Tr. 30, 2006 Tr. vacant lot is (Aug. Randall he something started away, 303.) behind what tried testified [Randall's] was where 30, 2006 "wave cap like shoulder and to Moody Crump also left walk heard heard the back to one the Crump's gunshot. gunshot car. (Aug. 30, a few 2006 Moody ran back to the car and he looked back and saw running "[Robinson] Crump (Aug. the where it after Moody and Randall 389.) Randall ." (Aug. 30, 2 006 Tr. 3 66.) testified 30, minutes . at the corner and car was parked." but or Davis saw "this young [Moody] . The van loud pop, The man "had on dark clothing" and either a Moody the . from [Robinson's] length on his head." (Aug. 362.) u-turn toward 15th Street and Davis heard a gunshot. car, 2006 Tr. him. had to that (Aug. happened attack Moody me." told 30, and 2006 Tr. Randall (Aug. Randall 30, 15 responded 2006 "that back and was protecting him while 304.) Tr. [Moody] Moody that 304.) had this took place." (Aug. 30, "just to Randall 30, 2006 Tr. 390.) get of "was 2006 out Moody told Crump to drive to Richmond the area." individual, 390.) and Moody Randall finally men Spradlin, a 60 drove female in Sandston. 30, with a the to friend 30, and of Agent he (Aug. shot "he the said he 30, and murder identified Randall, Jr., who was 2006 Tr. 103, 124.) and determined that Dee behind Sept. Randall 307.) that of T. 305, in 1, the YMCA 2006 Tr. the in 27- courtroom. Crump also testified he he was Craig (Aug. Crump, known as Agent 2006 Kayla Moody never saw Randall or Crump 2005. Jerrard 30, up 2006 Tr. 391.) testified Spencer 392; identified 2006 Tr. Virginia on October 14, pick Crump dropped Randall off on 306, 395.) to (Aug. apartments Tr. (Aug. 30, Spencer shooting 2006 306, (Aug. never saw a gun. (x9110) if that County Crump's. Gables Crump 2006 Tr. gun. alleged 390.) because he resisted the robbery." Chesterfield Seven (Aug. Moody (Aug. twice responded After picking up Spradlin, 28.) Tr. 2006 Tr. 391.) The Route 2006 to our grave." asked Randall didn't have any other choice, 392.) 30, saying we have to take this Tr. (Aug. 30, (Aug. assigned Robinson, 30, "Dee," as (x6623), Crump Point, Agent and Morris suspects. cell the 103.) Moody, Spencer reviewed work in West 2006 Tr. Darryl to (Aug. phone (x6608), and 30, records Moody made calls to one another on the evening of October 14, 16 2005. (Aug. demonstrated 30, 2006 that no Tr. phone Dee's phone after 9:03 p.m. Tr. 128.) The used in the with house. were The made phone or records from (Aug. and before 9:43 p.m. received 2006 30, shooting was not located. (Aug. 30, 129.) On the morning of spoke calls 127.)® The shooting occurred roughly between 9:10 and 9:43.® firearm 2006 Tr. 124, and (Aug. 30, Sunday, arrested 2006 Tr. October 16, Crump and 309-10, Moody 394.) 2005, at Agent Moody's 394.) parents' Crump learned that the police were looking for him so he turned himself in. 2006 Tr. Spencer (Aug. 30, Crump provided Agent Spencer with the name Dee and Agent Spencer learned that Dee was Randall on following day. (Aug. 30, 2006 Tr. untruthful and he 155.) statements "didn't ® Moody want Moody admitted at trial that he made to Agent to be 2006 Tr. involved and Crump confirmed that belonged to them (see Aug. Randall confirmed that the Braxton. (Sept. 1, 2006 Tr. made several phone calls to 30, Spencer because 308, with these he it," was "scared" but that he telephone numbers 30, 2006 Tr. 285, 374, 376) and phone he used belonged to Ethel 94-95.) Moody, Crump, and Randall each other that afternoon. (Aug. 376-77.) Agent Spencer reviewed cell phone records and determined that Dee called Crump on October 14, 2005 at 11:01 a.m. and the call lasted until 11:13 a.m. (Aug. 30, 2006 Tr. 124.) At 5:02 p.m.. Dee called Moody and then Crump called Dee. (Aug. 30, 2006 Tr. 127.) At 6:31 p.m.. Dee called Crump. (Aug. 30, 2006 Tr. 127.) At 9:03 p.m.. Dee received a call from the number 804-737-9242, and at 9:43 p.m. Dee made a call to that same phone number. (Aug. 30, 2006 Tr. 128.) ® Agent Spencer testified that he found a Hardee's receipt in Forrest Scott's car reflecting the purchase time as 9:10 p.m. (Aug. 30, 2006 Tr. 118.) 17 eventually told the truth. pled guilty commit to robbery, October 14, that first he 372, The (Aug. been Craig Robinson, 2006 Tr. degree 30, murder 2006 Tr, or 30, indicted but homicide, that he crimes had not fugitive 149.) team involving had his arrested Later that day. explained involvement the that in the Crump murder implicated Randall. any knowledge of events of the death trial. (Aug. Randall 2006 (Aug. Moody had Craig Robinson 30, the murder, Tr. alibi." 150-51.) and homicide, Randall (Aug. the 2005. On the 30, home (Aug. 2006 Tr. admitted and 150.) to that 30, 30, Randall had denied but stated that he had known Moody Agent Spencer "simply 2006 Tr. of their they replied 151.) asked he him has a (Aug. about rock the solid Agent Spencer asked him about his alibi and Randall stated "it was not important." 2006 Tr. of Agent Spencer spoke with Randall and of at for a long time and sold him crack cocaine and marijuana. 30, to Crump testified Ethel Braxton in Henrico County on October 18, and conspiracy 2006 Tr. 312-13.) for Moody 396.) police 2006 Tr. 310-11.) and attempted robbery related to 2005. had (Aug. (Aug. 30, 151.) October third 21, 2005, individual array line-up. (Aug. Forrest involved 30, in Scott the identified shooting, 2006 Tr. 134-35, 144-46.) 18 Randall, from a as photo D. Randall's Defense At Trial Hattie Mae Williams testified that she knew Randall through her grandson's 72.)^° mother, Williams Whitcomb Court 2005, approximately testified 7:00 (Sept. 86.) Tr. 76, 2006 Tr. 1, the 2006 and a gave Commonwealth birthday was date, at Williams Jamila's father's phone call (Sept. Randall called in 73.) in Sandston around 10:00 p.m. The home exact Tr. Tr. October 14, Randall made a friend 2006 her "around" came over was 81.) 1, at few minutes after 7:00 p.m. 78-79.) a 2006 ride (Sept. Jamila 1, 1, to 2006 Chamblis February 22 to not October (Sept. 1, 2006 Tr. 132.) Randall calls to testified and that received Crump that he "had going to come up, around calls "strictly drug deals." in was remember (Sept. testify that her father's 14. Randall not day Randall Williams Chamblis's house (Sept. End of Richmond could 1, a Chamblis. that p.m. the from her house, Tr. the East she that birthday. testified in although Jamila some October from (Sept. Moody 1, weed" 2006 and meet with me" 14, and Tr. 2005, made that were Randall told Crump 95.) "[t]hey he told me they were at the Fairfield Commons Mall^^ The Court corrects the spelling of Jamila Chamblis's name quotations from the record to reflect how Chamblis herself spelled her name at the beginning of her testimony. The Court notes that Eastgate Mall and Fairfield Commons are the 1990. same See mall. Randy The mall Hallman, was renamed Walmart 19 Fairfield Supercenter to Commons anchor in new because Randall did not have a Randall drove left to Seven then drove 98-99.) the mall Gables with and to to Hattie Mae Williams's the porch of (Sept. call child (Sept. Williams's 1, Jamila thereafter. a (Sept. 1, Crump buy 2006 Tr. and crack home. the three men Moody, for (Sept. 96-97.) and 1, 2006 Tr. Randall testified that Crump and Moody dropped Randall drugs. to Moody apartments off at Williams's home. on car. 2006 Tr. together 1, home 100.) Chamblis (Sept. 1, who she to hide 100.) that Randall he was sat selling Randall used Williams's phone came 2006 Tr. before 2006 Tr. over 100-01.) began to Williams's soon Chamblis and Moody had dating Randall. Chamblis became angry when Randall told her that he had been with Moody, so Randall left Williams's house, was gone. (Sept. Randall 1, 2006 Tr. testified and when he returned, Chamblis 101, 115-16.) that he stayed at Williams's house about an hour from approximately 9:00 p.m. until 10 p.m. for (Sept. 1, 2006 Tr. 102.) Around 10:00 p.m., Williams and her boyfriend drove Chamblis's Randall stayed to overnight. (Sept. house 1, 2006 in Tr. Sandston where 103-04.) Randall Remarkably, Chamblis did not testify to support Randall's alibi. Randall "hair out" testified at the time eastern Henrico center, 10:30 p.m.), that of he never had his arrest corn rows photograph, Richmond Times-Dispatch, but wore his never shot (June 26, 2014 http://www.richmond.com/business/article_4ea91787- 39e6-5de6-9e4f-d4c4afa519a6.html (last visited July 31, 2015). 20 anyone in West Point robbery with Crump October 14, on 2005. testified had a Tr. that or October Moody, and (Sept. Moody and 14, 1, 2015, was never not 2006 in Tr. Crump mentioned West When about his alibi, asked about his to refusal Point 105-06.) to that (Sept. tell a on Randall Randall "beef" with "some individuals out there." 124.) discussed the they 1, 2006 officers Randall explained that he told the officers who interviewed him that his alibi was not had already told me I was charged. important they knew anything I And I "because said whatsoever would have been turned around and used against me." (Sept. 1, 2006 Tr. 126.) E. Randall's Instead basis for of arguing overcoming incorporates Amendment Evidence Of his ineffective actual the innocence claims. Innocence innocence statute argument Randall assistance of into argues by not independently limitations, his that obtaining as Randall substantive counsel a Sixth rendered certain witness testimony or telephone records that would show he was actually innocent. addresses Respondent innocence in assistance counsel be context claims. failed to Travors, could the also For of his example, developed" Surles that Randall "to determine would 21 have claims substantive investigate Floyd Green, and Charles Randall's first ineffective argues Eric Berkley, i f matters demonstrated of that Sidney of defense that he was actually innocent of the crimes. 8 (capitalization and emphasis claim, he § 2254 provides Pet. Charles Ex. D, Surles, pendency of Aff.")). the of executed on direct February appeal Randall also argues that the phone testimony of Randall's established night of that the Chamblis, was 20, (Id. would in shooting and made and therefore was not the a (Mem. 2007, his Supp. Ex. E, during at 1 the ("Surles failed to obtain the Jamila Chambliss. have Randall corroborated the Hattie Mae Williams, and City the alibi witness, Randall Green 4, and the affidavit of that counsel records § 2554 Pet. In support of Floyd ("Green Aff.")), cell phone records of his girlfriend, claims Supp. corrected).) affidavit at 1-2 Randall's (See Mem. phone of call Richmond from in West Point. on her home (Id. to at 12-13.) Randall now submits Jamila Chambliss's phone records as evidence of his innocence. In order innocence § 2254 of to excuses Petition, his (Id. Sixth Ex. must whether it Randall's whether his untimely Amendment claims, "new presented at trial." from the Schlup, Court of the actual instant to reach the merits must extricate the Sixth Amendment claims. examine reliable purported filing thereby allowing the Court independently is at 1.) determine three pieces of evidence Court F, this evidence 513 U.S. 22 evidence . . at 324. . to that the The determine was not As discussed in greater detail below, Randall's new evidence is more confusing than compelling. 1. Affidavit Of Floyd Green Randall's claim of actual innocence is first affidavit of Floyd Green, executed on March 21, after Randall's incarcerated convictions, with Randall (Green at Aff. Nottoway at founded 2011, on the five years 2.) Green Center Correctional was and claims to have been with Randall's co-defendants on the night of the murder Green and vaguely robbery suggests of Craig that Robinson. Eric Berkley In is his affidavit actually individual who shot Craig Robinson: . . . I stopped at Eric's house, which was about 4:00 p.m. and Sidney was there with him in the yard washing his vehicle. Eric told me that Darryl Moody and his friend, Crump stopped by earlier that day, talking about confronting Forrest about some beef and they wanted everybody to roll out with them . . . . Plus Eric had already told me that he wanted to beat Forrest up because he ran Eric's wife off the road, so I agreed to go with him . . . . Later that evening, I went back to Eric's house. . . . I ro[de] with Charles, Sidney, and Eric, while Darryl and Crump was in their vehicle. When we got to West Point . . . we dropped Charles off at Academy Apartments, and me, Sidney and Eric went to Hardee's. Eric and Sidney went in Hardee's, while I stayed in the vehicle. That's when I seen [sic] Forrest and I asked him where the weed was. He said Craig got i t . . . . . . . Eric and Darryl decided that they was going to Forrest's crib together, so we parked at a cut where you can see the railroad tracks around the corner from Forrest's house. Eric and Darryl said they was [sic] going to check the scene out. Eventually Eric and Darryl came back to where we were parked and said they didn't see anybody, . . . so I 23 the got upset, Hardee's. told Eric he had a chance to get Forrest at . . . . . . That's when I got very frustrated . . . because Eric wanted me to ride out with him to fight Forrest, who he had a chance to get earlier, but he didn't, so I told him to take me home. That's when we parked in the same place that we parked at before, around the corner from Forrest's house where you can see the railroad tracks, and Eric said hold up. That him and Darryl was going to check the scene out, and I was like for what, Charles already told him that only Forrest and Mark was out there. Just go and beat him up . . . . So Eric and Darryl went toward Forrest's house, and Sidney and I stayed in the vehicle listening to some music. Crump stayed in the other vehicle. Minutes later, Darryl and Eric came back running. Eric told me and Sidney to take the vehicle back to his house . . . and he jumped in the vehicle with Darryl and Crump without telling us what happened.... Next day when I seen [sic] Eric, he told me not to say nothing to nobody, so I didn't because I didn't want any trouble for myself or my family. Prior to meeting Morris Randall at Nottoway Correctional Center, I did not know him, and never seen him before. Morris was not with us when we went to Forrest's house, and he was not a passenger in the vehicle Moody and his friend were riding in. (Green Aff. 1-2.) 12 Scott testified that he knew Eric Berkley. (Aug. 30, 2006 Tr. 257.) Scott saw Berkley on October 14, 2005 at Hardee's with Scott's cousin, Floyd Green, and several other people who he could not identify because they were in the back of a car. (Aug. 30, 2006 Tr. 257.) Scott admitted that around the time of the shooting he and Berkley "had some issues . . . . over a girl." (Aug. 30, 2006 Tr. 258.) Scott testified that he was "[p]ositive" Eric Berkley did not shoot Robinson. (Aug. 30, 2006 Tr. 273.) 24 2. Randall executed Affidavit Of also on represents, Charles submits February 20, the Surles affidavit 2007. In of Charles his affidavit Surles, Surles in relevant part: On the day Craig Robinson was killed, Eric Berkley came by my house and told me that Darryl Moody and a dude named Crump had just left his house and they were going to West Point later that night to confront Forrest Scott about a beef they had with each other. We left my house and went to where Eric lives .... . We chilled at Eric's house for a little while and then Sidney and Floyd Green stopped by. A few hours pas[sed] and Darryl Moody and Crump came back to Eric's house right before dark. Eric wanted me to go with them to Forrest's house so that I could check out the area to see if anybody was out there with Forrest. . . . Floyd and Sidney ro [de] with me and Eric, Moody and Crump rode in a separate car. When we got into West Point we went straight to Pilot [ ] Gas station. I got out and walked to Forrest's house which is around the corner from Pilot, while they sat in the parking lot. When I got out there I saw Forrest, Mark . . . and my mother Rosemary Davis. . . . I walk back to Pilot and had Eric take me to Academy Apartments.... I told them who was out there and they dropped me off. . . . Eric, Sydney, Floyd, Moody and Crump came back to the apartments and they told me they went out there but nothing happened and wanted me to check out the area for them again so I rode back with them. When I went out there the second time Forrest and Mark Gordon was the only two I saw. . . . Eric took me back to the Academy to drop me off. Moody and Crump followed. After I was dropped off a few minutes past and I called my mom. As I was talking to her she told me she was pulling off and then she said she heard a gunshot and the phone went dead. (Surles Aff. 1.) 25 3. Phone Finally, Chamblis. Randall The 2015, 0432. (Mem. is private Supp. shows received Supp. "the same § § 2254 Pet. advance of explained Randall's F. a the that at Pet. Ex. 7:37 from number that the F, Ms. belonging 14.) phone call 2254 investigator as his Motion for a in submits record Chamblis this Records records p.m. to her number 1.) Williams at Jamila on October phone at of 804-516- Randall provided the claims to time." the (Mem. Randall admitted during the hearing on New Trial that he had Chamblis's phone records trial. below, (Oct. 4, Chamblis's 2006 phone Tr. 15.) records Moreover, largely as refute alibi. Reliability of Randall's Evidence The Supreme Court has explained that to be credible, types 14, of "new allegations (1995). of reliable evidence" innocence. These include Schlup may v. support Delo, "exculpatory trustworthy eyewitness accounts, 513 a three petitioner's U.S. scientific 298, 324 evidence, or critical physical evidence- that was not presented at trial." Id. Randall's new evidence fails to fall into any of these categories. Randall evidence. clearly offers no new exculpatory To the extent Chamblis's phone records are scientific "physical evidence," these records are certainly not "critical" as further discussed infra Part III.E. Finally, 26 the affidavits Randall submits in support of eyewitness accounts." his innocence Schlup, 513 U.S. are at not 324. "trustworthyNeither Green nor Surles were eyewitnesses to the attempted robbery of Forrest Scott or the shooting of Craig Robinson. At most, these affidavits are vague statements from other felons that hint that a new individual, Neither Randall, Eric Berkley, may have nor either of the affiants, killed has stated who shot and killed Craig Robinson if Randall did not. faults counsel for failing to investigate potential suspect [ ] ," but does not state shooter. ECF No. (Traverse 3, evidence Thus, that it is evidence i s Berkley doubtful was 20.) the that Further, the Court Randall's affidavits Berkley Randall "as [a] the Randall offers no competent Randall has At most, that Berkley was individual "new reliable evidence" Robinson. who makes a for this doubts about shot showing Robinson. that his reason alone. the credibility in support of his claim of innocence. of The Supreme Court has instructed that when considering an actual-innocence claim in the context of a request for an evidentiary hearing, the District Court need not "test the new evidence by a standard appropriate for deciding a motion for summary judgment," but rather may "consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." House, The lack 547 U.S. affidavits the ring at 537 Randall of truth. (quoting produces Both Schlup, as evidence affidavits 27 513 U.S. of were at his made 331-32.) innocence after the conclusion of individuals currently Randall's with felony fact that Floyd Randall both trial and convictions. incarcerated. incarcerated with sheer criminal prior Charles Green to admits making affiants are have the a made by Surles is that he was affidavit. history of The felony convictions casts doubt on the reliability of their testimony. Additionally, the dubious authenticity. notarization any indication affidavit is of of The notarization on Green's affidavit where or p l a c e . O n Surles's affidavit, name, each Both lack any visible seal or stamp and are entirely handwritten. lacks on when the the notary's notarization took handwritten date, and place of notarization looks strikingly like Randall's own handwriting when compared to his submissions. Despite affidavits, the even Court's doubt considering evidence put forth at trial, found Randall guilty. about this new many a the reliability of evidence along these with the reasonable juror would have See Sharpe, 593 F.3d at 377." As of 2009, every notarial statement; 2) the notarial act must contain: 1) a date of the notarial act; 3) the place of the notarial act; 4) the expiration of the notary's commission; 5) the notary's signature; 6) the notary's registration number; 7) a photographically reproducible notary seal/stamp. See Va. Code Ann. § 47.1-16 (2009). In 2007, every notarization required the date, the place of the notarial and the expiration of the notary's commission. See Va. Ann. § 47.1-16 act, Code (2007). From review of the record, the Court notes that this is not Randall's first attempt at providing evidence of his innocence through statements of other individuals with whom he 28 was incarcerated. Randall has provided different evidence of his innocence at almost every stage of his challenge to his convictions. For example, on September 21, 2006, counsel filed a motion for a new trial based on Randall's theory that he was innocent. The motion was based on the potential testimony of Mr. Ayres and Mr. Brown, who Randall was placed in segregation with in jail. (Oct. 4, 2006 Tr. 3-4.) Counsel explained that Brown would say that Mr. Moody was incarcerated in Lancaster County Jail and had developed a relationship with . . . Mr. Brown, but that Mr. Moody had told him that Mr. Randall was essentially, the scapegoat; that, in fact, Mr. Randall was not present during the robbery and that part of the reason that Mr. Randall was named, number one, was to get themselves out of trouble, but also because Mr. Randall had a relationship with Mr. Moody's baby's mother. (Oct. 4, 2006 Tr. 4); see Motion for New Trial, Commonwea11h v. Randall, No. CR06-20 (00) - (04) , at 1 (Va. Cir. Ct. filed Sept. 21, 2006). Counsel explained that Mr. Ayers would testify that Forrest Scott only "identified Mr. Randall [from the photo lineup] just to get himself a better deal." (Oct. 4, 2006 Tr. 5); see Motion for New Trial, Randall, CR06-20(00)-(04), at 1. Counsel confirmed that "[t]hey didn't see personally anything of the shooting themselves. They were just repeating what Mr. Moody told them in jail." (Oct. 4, 2006 Tr. 4.) The Circuit Court noted that at most, this testimony would have come in at trial to impeach the credibility of Moody and Scott. (Oct. 4, 2006 Tr. 6.) The Court denied the motion because these two witnesses, Mr. Moody and Mr. Forrest Scott, were both extensively cross-examined and issues were brought out to attack their credibility and diminish their testimony in the eyes of the jury. The jury with all the evidence outside of the direct testimony of Mr. Moody and Mr. Scott there was other independent evidence that showed Mr. Randall was present in the immediate area. This just would have been, the testimony from these two new witnesses that the difference put forward today by the affidavits, would just be merely cumulative evidence toward further made they impeachment. any difference placed on the I do not think it would have to the jury in the credibility testimony of Mr. Moody or Mr. Scott. It would not have changed any result in the outcome of the case because, at best, this would just be further impeachment evidence of their credibility. 29 G. Consideration Of All The Evidence The sum Surles's of Randall's affidavits is new that evidence contained neither Green nor in Green's Surles and saw Randall with Moody and Crump at any time during the day of October 14, 2005, and that Crump in West to support Eric Berkley was Point. his the individual with Moody and Through the phone records, alibi that he was in Richmond Randall seeks and not in West Point on the evening of the shooting. Despite a veiled attempt to substitute Eric Berkley for Randall and to disavow Randall's involvement in the robbery and shooting in West Point, lend sufficient Commonwealth's the affidavits and phone records fail to support abundant for Randall's evidence of alibi Randall's to overcome involvement in the the crimes. Four witnesses identified Randall accompanied Crump and Moody around the as the time of individual the who shooting. (Oct. 4, 2006 Tr. 8-9.) Perhaps indicative of each affiant's veracity, Randall did not submit these affidavits in support of his § 2254 Petition. While Randall offers motives for several witness to lie, counsel questioned these witnesses during trial about such potential motives for their testimony. Counsel attacked Moody's credibility based on inconsistent statements that he made to police and Moody explained that he either did not remember making such statements or that he lied initially to "save [his] ass." (Aug. 30, 2006 Tr. 322; see Mem. Supp. Mot. Dismiss Ex. 3 nil 4.3, 4.6, ECF No. 15-3 ("Johnson Aff.").) Counsel so vigorously attacked Moody's credibility that the Court intervened witness and said told he counsel lied many to move times 30 on . because . . ." "it's (Aug. clear this 30, 2006 Forrest Scott, the only witness to observe the shooting, identified Moody from a photo array and in the courtroom as the shooter. Scott explained that he knew Eric Berkley, was "positive" that Berkley was not the shooter. Tr. 273.) time of Scott Scott testified the shooting. to have that he did not and that he (Aug. 30, know Randall at 2006 the Randall offers no persuasive reason for lied about Randall's involvement. Moody and Crump both testified to Randall's the plan to rob Forrest Scott. involvement in Moody and Crump testified that Randall was with them in West Point at the time of the shooting. Moody and Randall Scott, both Moody exited Crump's and Crump heard Moody ran back to Crump's car. any believable reason why the blame on Randall.^® car, a Again, Crump Randall left gunshot, and to approach Randall and Randall fails to produce and Moody would lie and place Both Moody and Crump also testified that Eric Berkley was involved in the plan to rob Forrest Scott, but Tr. 329.) Counsel asked Moody, Crump, and Forrest Scott about their own criminal charges or convictions and whether they had a deal with the Commonwealth in exchange for their testimony in the case. (See Aug. 30, 2006 Tr. 236, 314, 395-96.) Counsel also extensively questioned Forrest Scott about inconsistencies in his testimony about his actions at the time of the robbery, his ability to see the shooter, his drug use that night, and his identification of Randall from the photo lineup, (Aug. 30, 2006 Tr. 238-63, 271-72.) Counsel also asked Scott about a history of bad blood between Scott and Eric Berkley and Scott agreed that they had issues pertaining to a woman. (Aug. 30, 2006 Tr. 257-58.) At most, Randall claims that Moody had a child Randall's current girlfriend. (Sept. 1, 2006 Tr. 101.) 31 with that he failed 324-37, to 400-03, show up 406-07, to meet 412.) them. Thus, (Aug. the 30, jury 2006 knew Berkley's involvement in the planned criminal activity, persuaded after hearing all of the evidence that Tr. about but was Randall, not Berkley, shot Robinson. Trevonda King also identified Randall as the man who accompanied Moody and Crump in West Point around the time of the shooting. (Aug. 30, Importantly, 2006 Tr. according 348-49.) to their testimony, neither Green nor Surles actually observed the attempted robbery and shooting of Craig Robinson. Green indicates that he and someone Sidney "stayed in the vehicle listening to some music" "Darryl and vehicle Eric back [Moody] with came and happened." (Green Berkley, Randall, Crump 2.) without Green never in the telling us what states that Eric and he riding in." passenger in no involvement vehicle Moody At and most his friend were (Id.) Surles wholly fails makes the Robinson. "jumped "Morris was not with us when we went to Forrest's house, a Craig Eric states not shot and and then he was not Aff. running" named statement in the to mention Randall in his affidavit and about planned Randall's robbery of involvement Forrest Scott. or non- Surles offers little more than to swear that Eric Berkley was involved in the plan to rob Scott and was with Crump and Moody over the 32 course of the day. However, already established that to rob took Forrest me back Scott. to the the evidence Eric Berkley was Additionally, Academy Moody and Crump followed." put at trial involved in the plan Surles [apartments] (Surles Aff. forth states to 1.) drop that me Thus, "Eric off and Surles was not present at the scene of the attempted robbery and shooting. Surles provides no competent testimony to counter the compelling evidence offered at Finally, trial Jamila that Randall was the shooter. Chamblis's phone records create confusion than support for Randall's alibi defense. fail to square inconsistencies testimony elicited at trial. established that Crump between and Moody alibi and the evidence clearly picked Fairfield Commons Mall around 6:30 p.m. The records Randall's For example, more Randall up at the Randall testified that Crump and Moody took him to Seven Gables Apartments in Sandston to obtain Williams's drugs, home and then dropped in Whitcomb Court Randall off at in Richmond after Hattie 7:00 Mae p.m. Randall states that this was his last interaction with Moody and Crump that day. that Williams Chamblis's 2006 and house (Sept. {Sept. 1, testimony. Williams, her in Tr. Crump dropped 1, 2006 Tr. boyfriend Seven Gables 102-03.) and Moody Randall off 96-100.) drove both 33 Randall Apartments However, at Randall testified Seven Jamila around 10:00 contrary testified to to that Gables p.m. Randall's they, Apartments not in Sandston after the Kayla Spradlin, activity, shooting. (Aug. 30, 2006 Tr. 306, 392.) a witness who had no involvement in the criminal confirmed that Moody and Crump dropped off a man at an apartment complex on Route 60 in Sandston after they picked her up. (Sept. 1, 2006 Tr. 27-28.) In fact phone addition, records the after trial that to Randall support only his makes the records particularly suspect. available records at in trial his and defense. Randall claim of these innocence The phone records were chose Randall submitted not contends to that introduce the these records show that Jamila Chambliss received a phone call made from Hattie Mae Williams's house on October 14, § 2254 Pet. Ex. F, at 1.) 2005 at Hattie Mae 7:37 p.m. Williams (Mem. Supp. testified that she knew Jamila Chamblis because she was her grandson's mother. (Sept. 1, 2006 communications Tr. with 72.) one Arguably, another. the Thus, two at would most, have the records indicate that a phone call occurred between the two numbers, that Randall definitively placed this call. 72.) (Sept. 1, not 2006 Tr. Williams also testified that Randall came inside her house only once and it was on Chamblis's father's birthday. 2006 had Tr. birthday 81.) is Chamblis February 22. later (Sept. 34 testified l, 2006 that Tr. her 132.) (Sept. 1, father's Combined with this testimony, the phone records do not prove that Randall made this phone call at 7:37 p.m. on the night of the shooting. Further examination of doubt on Randall's Ethel Braxton's testimony. phone picking him up at Chamblis's phone back to 6:30 p.m. [in her apartment] her 1, testimony, 2006 for real, 104.) Chamblis's called Braxton's she Tr. at 12:51 a.m. records and also 12:55 Moody just who calls although and gave Crump with you, eight to that Randall's Chamblis minutes after called from Williams's to Randall Counsel explained that "[he] for Hattie Mae Williams" but helped to bolster her credibility." honest indicate p.m., two be contrary records 7:52 made a.m. to he It was almost morning time." allegedly hung up with Randall house.Chamblis to However, phone phone prior that the two "sat up basically all that talking and then we went to sleep. (Sept. testified also casts Randall also testified that after arriving at Chamblis's house, night Randall records that was same number allegedly at with did not obtain telephone that "probably would have (Johnson Aff. H 4.13.) In his first habeas petition filed in the Circuit Court, Randall claimed that he made this 7:52 p.m. call to Braxton from Chamblis's phone because he and Chamblis got into an argument and he wanted Braxton to pick him up. See Petition for Writ of Habeas Corpus, Randall v. Harmon, CL07-22, Attach, at 17 (Va. Cir, Ct. filed Feb. 22, 2007). The Court notes that the phone call between Chamblis and Randall on Williams's phone lasted until approximately 7:44. A reasonable juror could infer that, if the phone call with Chamblis ended at 7:44 p.m., it would be implausible that Chamblis could have arrived at Williams's house and that Randall and Chamblis could have already fought in eight minutes from the end of that phone call. 35 her at that Braxton's time. phone more calls than Chamblis's made from times. made records records CL07-22, 2007) . Thus, Ex. § 2254 number indicated. to for Q., This Chamblis's Writ at Pet. introduced at Braxton's phone Petition Harmon, Supp. were between Braxton's See Randall's (Mem. of 2-3 trial and F. Chamblis's phone Ct. 1.)" number several around Corpus, Cir. at and reflected included Habeas (Va. Ex. calls the same Randall filed Feb. v. 22, if the phone records had been presented at trial, testimony may have been further discredited. A jury could have easily concluded that Randall falsely testified that he gave Braxton's phone back to her when Crump and Moody picked him up in Richmond, and that he was not with Chamblis when he testified that he stayed at her house all night. Tr. 99, (Sept. 1, 2006 104.) Perhaps innocence witness, most is damning the absence his girlfriend, Chamblis came to Randall's current of any testimony from his Jamila Chamblis. to Williams's house claim of best alibi According to Randall, in the East End of Richmond at some point after the end of the phone call at 7:44 p.m. but left prior to 9:00 p.m. 1, 2006 Tr. on the evening of the shooting. 100-02; Randall Mem. claimed Supp. that he § 2254 made Pet. these Ex. two (See Sept. F, at calls 1.) from Chamblis's phone to Braxton to let her know he was okay and with Chamblis. CL07-22, See Attach, Petition for Writ at 18. 36 of Habeas Corpus, Randall, Counsel explains that testify with respect Richmond at the testified that Williams's Chamblis house of the received a and available to Randall's alibi time she was that could have she came over to While counsel anticipated calling Chamblis as an alibi witness, the in from Randall while at called, Whitcomb Court to meet with Randall. to Chamblis phone call he scheduled that he was defense shooting. after and Randall, last-minute decision for Chamblis not not counsel, to testify. made Counsel explains: I personally believe the main problem with defense is that he instructed me not to [Randall's] call the alibi witness. I provided notice of an alibi defense. I advised the jury in my opening statement that Jamila Chamblis would be an alibi witness, and I fully intended to call her. Right before I was going to call her, Mr. to call Ms. Randall Chamblis told me as a that he did not want me witness. I told him that we had already informed the jury that she would be a witness, she was a vital part of our case, and I thought we should call her. I added that he is the one going to jail, if we lose, so I left that decision up to him. He signed a statement indicating that he did not want me to call her as a witness. Mr. Randall indicated that he had spoken to Ms. Chamblis from a jail telephone, and he thought the conversation was recorded. During the phone call, he was trying to get Ms. Chamblis to contact witnesses for an an alibi alibi wrong date the defense. for a for He l a t e r learned different date, the murder. Commonwealth had Mr. recorded his that because Randall he he needed had thought efforts to the that establish the first alibi, and i t would look like he was making up the fact that Ms. Chamblis was his actual alibi. (Johnson Aff. H 4.19 on for the Motion lawyer not (spelling corrected).) New Trial, Randall admitted to put Chamblis on the stand, 37 During the hearing that stating: he told his " [A] large part of why because I did those testimony, phone put Jamila records and I have (Oct. 4, 2006 Tr. 17.)^° have on the shown stand that in is her that basically if they relied on [of Ethel Braxton] would Chamblis would as well as my own, the phone records Chamblis not looked over our testimony, like two liars on the Jamila stand." The Circuit Court aptly surmised: [Y]ou told your lawyer not to put Ms. Chamblis on the stand and now you feel you made a choice you wish you hadn't made and you wish you had put her on the stand. That's not a basis for a new trial just because you now wish you had done a different issue and trial strategy and your lawyer followed through with that. (Oct. 4, testified 2006 to Tr. 18.) that When would asked have what changed Chamblis the would jury's have decision, Randall explained: Ms. Chamblis her from Ms. records of could have testified Williams' that. that I had telephone that day. She also could have contacted There are testified that Ms. Williams is the one that brought me to her house at approximately 10:00 that same night, which would have not given me time to be able to be in West Point at that time and at Jamila's Chamblis's house at 10:00 p.m. (Oct. the 4, 2006 Tr. Circuit Court 18-19.) In denying Randall's pro se motions, explained that this evidence, evidence, "is not newly discovered evidence. want[ing] to try the case all over again. This is other just you It's like it doesn't As previously discussed, the call Braxton's phone reflected more calls between Chamblis's number, than Chamblis's phone log. 38 amongst log from Ethel that number and work out {Oct. 4, at first, 2006 Tr. Randall's main alibi so failure and try some new things." to produce any sworn testimony from his witness Randall's back 23.) at collateral proceedings of let's alibi any point during his criminal significantly undermines defense that he was in the and credibility Richmond at the time of the shooting and not in West Point. After considering demonstrate than not guilty beyond exists. of no a reasonable reasonable omitted). juror would doubt.'" Compelling Randall "'it is more have Sharpe, evidence found 593 of fails to likely [Randall] F.3d at Randall's 377 guilt Four witnesses placed Randall in West Point with Moody shooting Berkley, evidence, new evidence and Crump around the time of the the that based on his that (citation all stated that he knew shooter not Eric Commonwealth's witnesses and found their testimony credible, and Randall's the his concludes actual about Randall innocence to jury heard the was the testimony The the The only witness to testimony of Court but was Randall. the murder. his alibi, fails to make excuse the incredible. a sufficient untimeliness of Thus, showing of his § 2254 Petition. IV. The Randall's Motion § 2254 to CONCLUSION Dismiss Petition will (ECF No. be denied 39 13) and will the be granted. action will be dismissed. § 2254 An appeal may not be taken from the final order in a proceeding appealability ("COA"). not issue unless a denial This of a a debate judge 28 U.S.C. prisoner makes constitutional requirement could unless is (or, certificate of A COA will "a substantial showing of the 28 only for a § 2253(c)(1)(A). right." satisfied whether issues U.S.C, when that § 2253(c)(2). "reasonable matter, agree jurists that) the petition should have been resolved in a different manner or that the issues presented were proceed further.'" 'adequate to deserve encouragement to Slack v. (quoting Barefoot v. McDaniel, Estelle, 463 U.S. 529 U.S. 880, 473, 484 893 & n.4 (2000) (1983)). No law or evidence suggests that Randall is entitled to further consideration in this matter. The Clerk is directed A COA will to send a therefore be denied. copy of this Memorandum Opinion to Randall and counsel for Respondent. It is so ORDERED. /s/ ^ Date: ^ Robert E. Payne Senior Ifcdted States District Judge Richmond^ Virginia 40
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