Harbison v. Clarke, No. 3:2014cv00687 - Document 12 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/30/2015. (tjoh, )
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Harbison v. Clarke Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CHARLES C. HARBISON, Petitioner, V. Civil Action No. 3:14CV687 HAROLD CLARKE, Respondent. MEMORANDUM OPINION Charles C. with counsel, Harbison, a Virginia was the Circuit convicted abduction, the Court of commission the County a felony. Va. Code Ann. murder murder statute killing arson, § 18.2-32.) rape, "'in the (West 2015). § 2254 of William Harbison Bouchier, and use of a firearm in prosecution in charging relied and upon convicting Indictment at 1, Commonwealth 18, 2002) (citing A defendant is guilty of first degree of the commission forcible sodomy, robbery, U.S.C. Chesterfield, (Va. Cir. Ct. Mar. section 18.2-32 occurs penetration, 18.2-32 CR02F00428-03 under murder The Harbison of first degree murder. V. Harbison, of conspiracy to rob, of felony for proceeding Following a guilty plea in 2002 first-degree robbery, Virginia's prisoner brings this petition pursuant to 28 (''§ 2254 Petition," ECF No. 1). in state Virginia of, or Code attempt where to the commit, inanimate or animate object sexual burglary or abduction." Va. Code Ann. ''The felony murder statute applies § 'where Dockets.Justia.com the initial felony and the homicide were parts of one continuous transaction, and causal and were connection.'" 111, 123 (Va. 477, 482 (1978)). in closely related in point criminal 2011) Turner v. of time, Commonwealth, (quoting Haskell v. Commonwealth, place, 717 S.E.2d 243 S.E.2d Furthermore, where two or more parties engage concert of action, one who participates in the initial robbery giving rise to the homicide may be found guilty of murder whether or not lethal 828 stroke. See (Va. 1991) he was Rollston the v. one who actually dealt Commonwealth, 399 S.E.2d the 823, (recognizing the application of concert of action in felony murder cases). Respondent moves to dismiss, inter alia, on the ground that the one-year statute of limitations petitions bars the § 2254 Petition. governing federal habeas Harbison concedes that his petition is untimely under the statute of limitations governing 28 U.S.C. § 2254 petitions. Harbison asserts that (§2254 Pet. 10.) Nevertheless, the Court can examine the merits of his claims because he is actually innocent of the crimes to which he pled guilty. (2013) See McQuiqqin v. (''Actual innocence, Perkins, 133 S. Ct. proved, serves as if 1924, 1928 a gateway through which a petitioner may pass whether the impediment is a procedural bar limitations.") . For . . the [or] expiration reasons set of forth the below, statute the of Court rejects Harbison's Motion to Dismiss assertion of actual (ECF No. I. On October 4). 2002, (Oct. Harbison 22, 2002 pled Tr. guilty 9-12.) Pleas Harbison, filed Prior to Sentencing at to 29, 2003) . That same 1-2, day, charges 29, 2003, Motion to Withdraw Commonwealth Nos. CR02F00428-01 through CR02F00428-06 May the On May Harbison moved to withdraw his guilty pleas. Guilty the PERTINENT PROCEDURAL HISTORY 22, discussed above. innocence and grants v. (Va. Cir. Ct. Harbison withdrew his Motion to Withdraw Guilty Pleas and the Circuit Court sentenced Harbison to an active term of imprisonment of forty-three years. (May 29, 2003 Tr. 3, 15-16.) Thereafter, Harbison, with new Motion to Withdraw his Guilty Plea. Plea (43) at 1-11, Commonwealth through CRF0200428-06 October 27, 2003, (Va. the v. counsel, Ct. Circuit another Motion to Withdraw Guilty Harbison, Cir. filed Nos. CR02F00428-01 filed Aug. Court 2003). On the denied 4, Motion to Withdraw the Guilty Plea because too much time had passed and it lacked jurisdiction. (Oct. 27, 2003 Tr. 11-12.) Harbison did not file an appeal. On or about May 14, 2004, Harbison filed writ of habeas corpus with the Circuit Court. 23, at 1, ECF No. 1-26.) denied the petition. On March 21, 2005, (Id. Ex. 24, at 2, a petition for (§ 2254 Pet. Ex. the Circuit Court ECF No. 1-27.) Harbison appealed. The Harbison's petition for Supreme appeal. Court (Id. of 25, Ex. Virginia at 1, refused ECF No. 1- 28. ) On October 8, 2014, Harbison filed his present § 2254 Petition. II. ''Claims freestanding (1993), see of actual ones, see or merely as Schlup v. 1998) INNOCENCE STANDARD innocence, Herrera v. whether Collins, 506 gateways to excuse a Delo, granted casually." Cir. ACTUAL 513 U.S. 298, 317 Wilson v. Greene, (parallel citations presented U.S. as 390, 417 procedural default, (1995), should 155 F. 3d 396, omitted). Here, not 404 the be (4th Court reviews Harbison's assertion of innocence under the more lenient standard for gateway claims because Harbison's actual innocence claim would allow barred claims. the Court McQuiqqin v. to consider Perkins, his 133 S. otherwise Ct. 1924, time1928 (2013) . A gateway claim requires ''new reliable evidence—whether it be exculpatory accounts, at trial." scientific evidence, trustworthy eyewitness or critical physical evidence-that was not presented Schlup, 513 U.S. at 324. "Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. If a reliable '"•^all petitioner meets evidence of the evidence,' his the burden innocence, old and new, of producing the Court new, then truly considers incriminating and exculpatory, without regard to whether it would necessarily be admitted under ^rules of admissibility determines whether the that petitioner gateway claim of innocence. (2006) (quoting Schlup, determine ''whether reasonable 2010) govern has met House v. 513 'it U.S. is at at the trial'" standard Bell, 547 U.S. 327-28). The than and for 518, a 538 Court must more likely found juror would have reasonable doubt.'" would not that petitioner guilty beyond a Sharpe v. Bell, 593 F.3d 372, 377 no (4th Cir. (quoting Schlup, 513 U.S. at 327-28). It reliable is doubtful evidence of that his Harbison innocence has to produced warrant second step of the actual innocence inquiry. any going truly to the Nevertheless, as explained below, when one considers all the evidence, old and new, he fails to demonstrate that no reasonable juror would have found him guilty beyond a reasonable doubt. Ill. ANALYSIS A. Preliminary Siimmary Of The Evidence Regarding Harbison's Crimes The that Commonwealth's Brandi Dalton and evidence Chris of Harbison's Harbison devised guilt a plan reflected to lure Billy Bouchier to Dalton's home and rob Bouchier of money and drugs. 2001, (Oct. 22, 2002 Tr. 29.)^ [Michael Harbison, Herbert Dalton's Skiles 1629-03-2, 2004) . his At and 2004 another WL Dalton from the Brooks Gerald home, at (Brooks), Walker which woman." 1315323, some point, When and County *1 (Va. visited she Brooks Charles shared v. Ct. Brandi with Commonwealth, App. June 15, ''Dalton contacted Bouchier by telephone to lure him to her home." away sister Kia Brown, Chesterfield Jennifer No. Brooks], "On the evening of December 6, Id. announced house, Bouchier [Michael was a few Brooks], minutes Harbison, Brown, and Walker arose and walked down the hallway. [Kia] Brooks went to the downstairs bathroom. From the bathroom. Brooks heard the front door open and shut and the sound of footsteps going upstairs. She heard thumping, stomping, and a yell. [Kia] Brooks testified, ''All I heard was noise . . . other than Mr. Bouchier's noise, nothing." Eventually, to the bathroom and took [Kia] Brooks Dalton came upstairs to Dalton's bedroom. [Kia] Brooks saw Bouchier lying face down on Dalton's bed with a pillowcase over his head. Harbison was putting his weight on Bouchier to restrain him. Harbison kept asking Bouchier about money and a code. what they want standing behind picked up [Michael] Dalton told Bouchier to "tell them to know." Harbison. At Bouchier and [Michael Brooks] was one point, Harbison slammed him on the bed. Brooks assisted by placing duct tape around Bouchier's ankles. Dalton said she wanted to get Bouchier out of the house. Harbison and Brown picked up Bouchier and took him to "for the a hallway. minute." Bouchier stood beside [Kia] Brooks saw blood Harbison on the ^ The summary of the evidence comes from the transcript of Harbison's guilty plea and the Court of Appeals of Virginia's summary of the evidence pertaining to the guilt of one of Harbison's codefendants, Michael Brooks. The Court notes that the parties and the courts spell Dalton's first name as "Brandi" or "Brandy." pillowcase covering Bouchier's head although she saw no blood in the hallway at that time. [Kia] Brooks later observed Bouchier being ""walked down" outside, she the stairs. When [Michael] Brooks went saw that Bouchier had been placed in the hatchback area of [Michael his own car. Brooks], with Harbison and Bouchier as passengers, drove Bouchier's car away from Dalton's residence. Brooks and Dalton followed in a separate car as [Michael Brooks] led them to a remote site on Duval got Road. out [Michael of Bouchier's the vehicles car. The [Michael Brooks] vehicle she was Brooks then Bouchier's pistol. quickly Dalton and Harbison, of and shoot beside car was open. to position the the exit route. walk Bouchier Dalton the instructed Brooks driving to face Dalton and together stood hatchback observed car Brooks], to five the rear times with of a [Michael Brooks], Harbison, and Dalton entered Brooks' vehicle. Harbison asked if she was sure Bouchier was dead. Dalton said, ""He squirmed like a worm." [Michael commented, ""I didn't think you would do it." [Kia] Brooks drove residence. Dalton and the group Harbison Brooks] to Dalton's cleaned Dalton's bedroom and the upstairs of the house. They removed Dalton's bedding, the hallway blinds, and a carpet and placed the items in trash bags. They took the bags to Harbison's home, and Harbison subsequently burned them. [Kia] Brooks dropped off [Michael Brooks] at the home of his girlfriend. Earlier that with the group, remained there evening, after smoking marijuana Skiles had gone to her bedroom and with the door closed. At one point, she heard thumping, looked out the door, and saw Walker entering Dalton's bedroom. Later that night, after the rest of the group had left the house, Skiles saw blood on Dalton's bedroom door, the bathroom door, the closet doors, walls, a clothes hamper, blinds, and carpeting. Bouchier's dead body was found in the rear of his vehicle the following day at the site on Duval Road. Bouchier had been shot five times, each of them a lethal wound. Three of the wounds were to the right side of the head. The other two gunshot wounds were to the chest and abdomen. When the body was found, Bouchier's head was covered with a pillowcase that had two bullet holes in it. The pillowcase Bouchier's was mouth. secured with Around duct Bouchier's tape above and under head his body was a sheet with one bullet hole in it. What appeared to be spots of blood were on Bouchier's pants and socks. The three medical head examiner wounds would opined have that each ''result [ed] in of the instant fatality, instant incapacitation." Had Bouchier received any of these wounds while inside the house, he would have been unable to walk. The medical examiner further opined that if Bouchier had been shot in the chest inside the house, he ''would have been able to stand for only a very short time." Bouchier also had suffered a number of superficial blunt force injuries, none of which would have produced significant bleeding or contributed to his death. (Id. at *1-2.) B. Harbison's Theory Of His Innocence Harbison asserts that the sum of old and new evidence reflects that: . . . Bouchier was shot behind the ear and killed in Brandi Dalton's room before the pillowcase was taped over his head and before he was removed from Brandi Dalton's room, and that Harbison was not present when this occurred. The evidence specifically shows the following. Kia Brooks picked up Brandi Dalton's house. Harbison and took him to Harbison left at around 9 p.m. when Anthony Adkins picked him up to take him to Torei Rock's around house. After staying at Torei Rock's for an hour, Harbison was again picked up by Anthony Adkins and driven back to Brandi Dalton's house. They stopped at a gas station on the way and were seen by Amber Miles. Sometime after Harbison arrived back at Brandi Dalton's house, he went upstairs and found Brandi Dalton, Michael Brooks and Jerald Walker in the bedroom with Bouchier's dead body. At this point, in some misguided devotion to Brandi Dalton, Harbison helped wrap Bouchier's body up. {§ 2254 Pet. 22.) In inter support alia, Brooks, C. {§ 2254 the foregoing statements Kia Brooks, of Michael In of Brooks from theory, himself, and Brandi affidavit, Pet. contains no eyewitness supports Ex. 2, Harbison at accounts, Dalton, upon, Michael from the trials Innocence explains 1-3.) or why Harbison's scientific critical innocence. relies Dalton. ''exculpatory his Brandi and snippets of the records Harbison's Evidence Of His his Harbison Schlup v. he pled affidavit, evidence, physical Delo, guilty. however, trustworthy evidence" 513 U.S. 298, that 324 (1995). 1. Harbison's Evidence To Support An Alternative Scenario Of Bouchier's Murder First, Harbison tenders a notarized letter from Michael Brooks, dated June 10, 2004, wherein Michael Brooks asserts that he wishes to reveal ''the full night of Bouchier's murder. No. 1-10.)^ truth" (§ 2254 Pet. Ex. 7, at 1, ECF (Id. at 2.) Michael Brooks asserts that, 2001, happened on the Michael Brooks asserts that he is "tired of covering for" his sister, Kia Brooks. 6, of what around, 6:30 p.m. on December he and his sister "Kia picked Chris up" and went to Brandi's house. (Id. about 6:45 p.m. (Id. ) at 3.) Herb They arrived at Brandi's house at Brown and Gerald Walker arrived ^ The Court corrects the capitalization in the quotation to the parties' submissions. around left 7:45 p.m. Brandi's going to (Id.) house look for at Michael about marijuana. Bouchier arrived and Brandi Brooks 9:00 (Id. p.m. at claims and 4.) that said 10:30 or loud pop." so, (Id. Brooks was at 5.) (Id. ''startled by what Brandi then came he 10:00 (Id.) Brooks stayed downstairs and listened to music. About that Around took him upstairs. Harbison was p.m., Michael at 4-5.) sounded like a ''racing down the stairs with a gun in her hand screaming" for Brooks to help her. (Id. at 5.) Brooks then followed Brandi upstairs because he was afraid she would shoot him. (Id. Upon arriving upstairs, Michael wrapping up Bouchier in a sheet. to be dead. (Id.) burst into the room . . . hell had went on "It was at 5-6.) saw (Id. at 6.) about and asked in here." Brooks (I^) this time [Michael Gerald Walker Bouchier appeared that Brooks] [Harbison] what the Brandi then told Michael Brooks and Harbison they had to help get Bouchier's body out of the house. (Id. at 6-7.) Michael Brooks claims that he helped dispose of Bouchier's body because he feared Brandi might shoot him or his sister. Michael Brooks Bouchier's body, (Id. at (Id. at 7-8.) asserts Brandi that right before they dumped Dalton shot Bouchier four more times. 9.) 10 2. Harbison's Evidence To Support An Alibi Anthony Adkins assertion that he Bouchier, and provides was only absent arrived Bouchier had been killed. After I ran around 6:00 ride. He said, p.m. some support during at the Brandi for Harbison's actual murder Dalton's home after Specifically, Adkins swears: some errands, I called and asked him if he ''Yes," but told me he [ Charles still ] needed at a would be at a friend's house and asked me to pick him up from there. Charles then gave me directions to where he would be. I told him I A would be there around 9:00 p.m. little after 9:00 p.m., I picked Charles from the neighborhood he gave me directions to, up which was across the street from Salem Church Middle School. Charles met me on a road in the neighborhood, he was by himself. Charles told me he needed to go to a friend's house whose name is Torei, and that he needed to be dropped off there. He then told me that he needed to be picked back up in an hour. I dropped him off at a house off of Lucks Lane, and I went to Hooters to get something to eat. I returned to the same house to pick Charles up about an hour and a half later. stop and buy some cigarettes. Charles wanted to So, we stopped at a gas station on the corner of Lucks Lane and Courthouse Road. From there I drove him back to the neighborhood I originally picked him up from. would call me the next day, out days Charles told me he but never did. I found later that he and others had been arrested for murder. At no time had any attorney or representative of Charles Christopher Harbison ever contacted me prior to his trial to ask me about any information I had in reference to the events that took place on December 6, 2001. But had they contacted me, I would have testified to what I have submitted in this affidavit. 11 of {§ 2254 Pet. Ex. 10, at 1 (punctuation and spacing corrected) (paragraph numbers omitted), ECF No. 1-13.)^ Torei was at Rock Rock's Specifically, corroborates home Rock on swears Adkins's the assertion evening that around of 9:15 that December p.m. on Harbison 6, 2001. December 6, 2001, Chris came to my house. I'm not sure who took him to my house. We sat around and talked and had a few beers. Chris said he couldn't find any marijuana at Brandi's house, but that he was going back to Brandi's and maybe he could find some later. Chris stayed at my house for an hour and a half, maybe two hours. Chris's ride beeped the horn to let Chris know he was outside, and Chris left. It was dark, but from the window, I could see Chris get into the car. I did not hear from Chris again that night. (Id. Ex. 11, at 1, ECF No. 1-14.) 3. Forensic Evidence Jennifer Skiles, Karen Jones and Kia Brooks all testified to seeing a large amount of blood in the bedroom at Brandi Dalton's house. Brandi (See, Dalton's e.g. trial, ECF No. the 1-32, at prosecution entered of stipulation acknowledging that, 'Mt]he time victim 'Mt]he blunt force is unknown" and, 29-30.) death trauma, During into a of the beating, [and] injuries [Bouchier sustained] are not consistent with any substantial loss of blood." 1-16.) (§ 2254 Pet. Ex. 13, at 1, ECF No. The stipulation further provided that Bouchier sustained ^ Amber Miles swears that she saw Adkins and Harbison at a service station, sometime after dark on the night of December 6, 2001. (§ 2254 Pet. Ex. 12, at 1, ECF No. 1-15) 12 five (5) wounds gunshot wounds and that 'Ma]ny one of the five gunshot or (Id.) all five could have been inflicted The stipulation also stated that, been able sustained to stand was the on his gunshot own wound only to the in the house." ''the victim would have if the only heart. He wound would been able to stand for only a very short period of time." he have (Id.)^ Harbison suggests that this evidence tends to indicate that Brandi Dalton killed Bouchier in her home and is consistent with Harbison's home, current Bouchier story already that, was when dead. he reappeared Harbison at has Dalton's produced unsworn letter from Kia Brooks wherein she states that ''believe [s] [Bouchier] was shot inside the house . No. 10-2, at 1.) . an she now . ." (ECF Kia further states she is now more familiar with sound of gunshots and that the thud she heard the night of the murder might have been a gunshot. (Id.) She also states she stuck to her initial testimony because of pressure from the prosecutor. that (I^) Harbison carried Additionally, Kia states that when she swore took Bouchier Bouchier's Bouchier down downstairs, the stairs, autopsy report she because reflects meant she that Bouchier's socks are stained with spots of blood. Ex. 15, at 1, ECF No. 1-18.) 13 now Harbison believes soles of {§ 2254 Pet. Bouchier ''died at the top of the stairs or a 4. Brand! Dalton's Statement Regarding The Murder Harbison also has produced a Brandi Dalton (§ 2254 Pet. to advance tells little ways down." made Ex. to 31, Harbison's Harbison's ECF No. Harbison's recording of a phone call that 1-34.) claim of father that shot Bouchier at her home. father The from (Id. at 5 in recording does innocence. Michael jail In Brooks, that call, rather 2002. little Brandi than she, (as paginated by CM/ECF. ) While attempting to comfort Harbison's father about Harbison's minor role in the crime, she acknowledges that Harbison was present in the home when Gerald Walker beat up Bouchier and attempted to rob him. D. (Id. at 7.) Additional Evidence Of Harbison's Guilt While some confusion exists about when Bouchier was first shot and evidence who pulled overwhelmingly the trigger, demonstrates as explained that Brandi below, the Dalton and Harbison participated in the plan to rob Bouchier and Bouchier's murder was the product of that plan. ^ Harbison also has submitted affidavits from his mother and father wherein they swear that Kia Brooks testified falsely at Harbison's preliminary hearing when she testified that she did not pick Harbison up at their home on December 6, 2001. (See § 2254 Pet. Exs. 8-9, ECF Nos. 1-11, 1-12.) 14 1. Harbison's Although Brandi's of any facts house plan that murder, Harbison moments to he rob first I n i t i a l Statement To The Police now suggests after that Bouchier was Bouchier, told the that is police. he reappeared killed not and was the He of the Shortly after Bouchier's (Dec. 19, 1.) said that Harbison told the police that Dalton's house at 6:00 p.m. on December 6, 2001. Tr. unaware version the Chesterfield Police interviewed Harbison. 2001 Tr. at 50.) he arrived at (Dec. 19, 2001 By 9:00 p.m., Brandi had called Bouchier and several other men already had arrived at the house. (Dec. 19, 2001 Tr. 53-57.) Bouchier arrived between 9:00 and 9:30 p.m. and went upstairs with Harbison Brandi. (Dec. 19, 2001 Tr. admitted that when Bouchier went upstairs, were going to rob [Bouchier]." After Bouchier went Harbison ''knew they (Dec. 19, 2001 Tr. 58.) upstairs, yelling, so he went upstairs. 57.) Harbison heard (Dec. 19, 2001 Tr. 63.) Brandi Harbison went upstairs and found two men holding Bouchier down on the bed while Brandi and another man looked on. Harbison claimed that it was (Dec. 19, 2001 Tr. 63.) difficult to identify the men because they had covered their faces with shirts from Brandi's closet. struck (Dec. 19, 2001 Tr. 64.) Bouchier in the face Harbison looked on as the men with a gun and demanded Bouchier tell them where the marijuana was located. 15 (Dec. that 19, 2001 Tr. (Dec. 65.) 19, Bouchier was alive and talking to his assailants. 2001 Tr. 67.) the house. (Dec. Bouchier still 68, was 19, 2001 Tr. alive when 67-68.) he downstairs and left According to Harbison, left. (Dec. 19, 2001 Tr. 67- 75.) The next morning, she Harbison then went had shot Brandi called Harbison and told him that Bouchier. asserted that he felt (Dec. 19, guilty for not individuals from hurting Bouchier. 2. Kia Brown, Tr. 74.) Harbison trying to stop the other (Dec. 19, 2001 Tr. 85.) Kia Brooks's Testimony Brooks Jay 2001 ('^Kia") Walker, testified Michael at Brooks, trial that Brandi she, Dalton, Herbert Dalton's female roommate and Chris Harbison were at Brandi Dalton's home on December 6, 2001. 8.) (§ 2254 Pet. Ex. 5, at 20-22, ECF No. 1- Brandi mentioned that Bouchier was going out of town and would likely possess a large sum of money and drugs. 23.) (Id. at Harbison came up with a plan whereby Brandi Dalton would lead Bouchier upstairs while the men would hide in the closet. (Id. at upstairs, 23-24.) Harbison explained that, once Bouchier was the men would jump out and place a pillow case over Bouchier's head. (Id. at 24-25.) Thereafter, Brandi called Bouchier and told the others that Bouchier was on his way over. (Id. at 29.) Brown, Michael Brooks, Harbison, and Brandi went upstairs. 16 Walker, (Id. at 29- 30.) Kia went (Id. at pain. 30.) (Id. into the downstairs bathroom and closed the door. Kia at Kia upstairs. then 31.) heard Next, a thud Brandi and came Bouchier yell downstairs out in and brought (Id.) Upstairs, Bouchier was lying face down on the bed with a pillow case over his head and duct tape around his neck. (Id. ) Bouchier's down. (Id. at hands were 31-32.) tied and Harbison Harbison demanded to was holding know where money was and slammed Bouchier into the bed. then tied Bouchier's ankles. (Id. at to move Bouchier out of the house. 34.) him Bouchier's (Id. at 33.) The parties Kia agreed (Id.) Harbison then lifted Bouchier up out of the bed and moved Bouchier to the landing 2002 Tr. 128-29.) above the Bouchier stood, stairs. (Dalton swaying back and forth, a bloody pillowcase wrapped around his head. 2002 Tr. 128.) Bouchier said (Dalton Sept. 10, 2002 Tr. 129.) down the stairs. of the house, [Bouchier's] car." Michael that he did Brooks 10, with (Dalton Sept. 10, not feel well. Harbison then walked Bouchier (Dalton Sept. 10, 2002 Tr. 129.) Harbison Sept. ''walked Mr. Bouchier to Once outside the trunk of (Dalton Sept. 10, 2002 Tr. 131.) drove Bouchier's car trunk and Harbison in the passenger seat. with Bouchier (ECF No. in the 1-8, at 35.) Brown and Walker followed in Walker's vehicle and Brandi and Kia followed in Kia's car. (Id. at 17 36.) Eventually, Brown and Walker went their own way, Duval Road. (Id. at while the remaining parties drove to 36-37.) At Duval Road, Michael Walker, Brandi Brandi and Harbison got out of their cars. (Id. at 37.) then car, leaned went around to shot the gun once. more times. back (Id. of Bouchier's at 38.) Brandi paused, in, Harbison, away. then shot four and Michael Brooks got into Kia's car and (Id.) Bouchier was dead. Harbison (Id. ) asked Brandi if she was Harbison, Brandi's house Michael and 3. Brooks began Bouchier's blood on it. sure ''Brandi said that when she shot him, he jerked like a worm and she was sure that he was dead." Brandi, and (Id.) Brandi, drove the to (Id. and clean Kia Brooks went up everything (Id.) back to that had at 40.) Karen Jones The record shows that Karen Jones was Brandi's neighbor and friend. (Dalton Sept. 10, 2002 Tr. 77.) On December 6, 2001, Brandi told Jones that Bouchier was coming over to Brandi's home and that Harbison and Michael Brooks were going to ''beat him up and rob Jones him." was Bouchier, not (Dalton at the Sept. house 10, at 2002 the time Brandi later told Jones that (Dalton Sept. 10, 2002 Tr. 86.) 18 Tr. 78-80.) of the Although assault on she had shot Bouchier. 4. While Brooks Cardell Banks incarcerated in the told Brandi's fellow house.^ Specifically, hid in a over $900 closet, Brooks and Michael 2002 Tr. related that jumped out {Dalton the and him. the Sept. (Dalton white he Michael then Brooks E. At of 448.) male pillow case Tr. 11, 2002 loaded 445-46.) and the Tr. 446.) Bouchier and Michael Brooks shot Bouchier. 447.) 445-46.) white a 2002 agreed to say that Brandi had shot Bouchier. 2002 Tr. a at Bouchier and took between Sept. male and Michael occurred Tr. taped 11, Jail, had 2002 and duct white male beat from Bouchier's car, 11, Brooks what 11, then and Brooks Banks, Sept. head. $1,200 Cardell Regional (Dalton Michael Bouchier's Michael inmate, Riverside into (Dalton Sept. white male then (Dalton Sept. 11, Harbison is a white male. Evaluation Of All Of The Evidence the Michael outset, Brooks the and Court Kia ^ At Brandi's bench Brandi's Dalton's private conversation which trial. Banks investigator. attempt statements to exculpate denied ever telling Jack Davis, about a The the (Dalton stated of his Sept. that conversation the 11, it statement 2002 Tr. would not Brooks recent murder of Bouchier. (Dalton Sept. 11, 2002 Tr. 428-30.) Circuit Court then permitted Jack Davis to testify as to ''that with the and content had Brooks, that robbery noted, Banks notes with can come 443.) regarding Banks. in, The but Rather, ''consider the the Circuit not as the Circuit evidence Court evidence." of Court such inconsistent statements except for the limited purpose of contradicting the witness, the witness being [Mr. Banks]." (Dalton Sept. 11, 2002 Tr. 442-43; see Tr. 445) 19 Harbison, are quite suspect. (TSE/IDD), 2015 (observing WL that See Mabry v. 3545924, at *6 post-conviction Clarke, (E.D. Va. No. I:14cv453 June statements 3, by made 2015) other participants in the crime generally fail to constitute reliable evidence of innocence HEH, Kia (citing Carter v. 2010 WL 331758, nor Michael at *6 Brooks (E.D. Va. adequately Virginia, Jan. 26, explained No. 3:09cvl21- 2010)). why it Neither took them years to come forward with their present accounts of the robbery and the murder Ct. 1924, evidence made 1935 bears the Michael of Bouchier. (2013) on the requisite Brooks's attempt role for to fails Scott, 28 F.3d innocence claim delay determination whether showing crimes McQuiqgin (''Unexplained weight because he in the See 460, [of v. Perkins, S. in presenting new the petitioner has innocence]."). exculpate 133 Harbison Furthermore, carries little to accept any responsibility for his which he 463 stands (5th predicated Cir. on convicted. 1994) See Drew v. (rejecting co-defendant's actual statements made after he had nothing to lose by exculpating defendant). The uncontested participated house with Harbison's Torei in Dalton's driving Bouchier innocence Rock which home at evidence in Bouchier's the is suggest about demonstrates the trunk. the 20 Brandi Dalton's from The strongest Harbison time Harbison car statements that that that evidence of Anthony was absent from Brandi murder and the Adkins of and robbery occurred.^ of However, a reasonable juror examining the evolution Harbison's would conclude simply concocted the alibi to align with the favorable evidence that assertion suggested of innocence that Bouchier had been shot that he forensic at least once prior to being placed in the trunk of his vehicle. For example, although Harbison now asserts actually innocent because he was not present at when Bouchier was told the police.® robbed and killed, that is not that he is Brandi's house what he first During his initial interview with the police, The fact that Adkins appears to be a convicted felon does not help his credibility. courts/circuit/hampton See http://www.courts.state.va.us/ (select "Case Status and Information;" select ''Circuit Court" from drop-down menu; select hyperlink for ''Case Information"; select "Chesterfield Circuit" from drop-down menu and follow "Begin" button; type "Adkins, Anthony," and then follow "Search by Name" button; then follow hyperlinks for "CR02F02210-03" (last visited Aug. 17, 2015). ® Brandi Dalton also indicated to Harbison's father that his son Charles Harbison was present in her house at the time of robbery and murder. Furthermore, in his candid statement to the probation office, Harbison admitted to being present for the robbery. In that statement, Harbison said: "There was a plan to rob a person brought on by a codefendant of mine. To me and the rest of the codefendant [s] that person told us about the person witch [sic] would get robbed. The person came over then a codefendant said that everyone needed to leave so when they stopped all of a sudden Miss Dalton shot that person without telling them anything. All I really have to say is that I was wrong and I'm sorry very much about what happen. It was a stupid idea for me to stay for the robbery[,] but if I had any idea that this kind of thing could have happened I would have never stayed." 21 wherein Harbison is clearly attempting to deflect any guilt for the crimes, during Harbison, planning the Bouchier. nevertheless, and the Harbison fails admitted execution of to being the present robbery of to offer any convincing explanation as to why he would have told the police he was present at the time of although the robbery admittedly if, in present fact, at he was Brandi's not. home Furthermore, for much of the evening of December 6, 2001, Harbison's current version (that he was absent during murder occurred, stretches juror to the critical window wherein the robbery and but stuck around to dispose of Bouchier's body) credulity. conclude Rather, that the Harbison removing Bouchier from Brandi's record permits actively home a reasonable participated in and in cleaning up the scene of the robbery to cover up for his participation in the crimes against Bouchier. Kia Brooks's trial testimony that Harbison helped plan and execute the robbery and the murder is consistent with the other evidence. For example, the blood on the soles of Bouchier's socks supports Kia Brooks's trial testimony that Harbison walked Bouchier down the stairs after Bouchier had been attacked in the bedroom.^ Post Additionally, Sentence Report Kia at Brooks's 12, account Harbison v. of Harbison's Commonwealth, No. CR02F00428-01;-03-06 (Va. Cir. Ct. Feb. 5, 2003). ® Kia Brooks's current suggestion that Bouchier already was dead when Harbison moved him down the stairs makes little sense 22 involvement by Karen in the Jones. Bouchier was planned On coming robbery December over to her Bouchier 2001, 6, of Brandi home and is told Harbison Brooks were going to ""beat him up and rob him." 10, 2002 Tr. apparently fact the 78-80.) unbiased Harbison witness was robbery of Bouchier. 201 {4th Cir. felony murder 2006) the an unrebutted offers instigator because and Michael from the of the 453 F.3d 195, petitioner innocence was an for perpetrator Polk, that (Dalton Sept. support (rejecting claim of actual participated in the crime). and Jones testimony convincing See Buckner v. conviction planned robbery, conceal This corroborated aware 200for of a the robbery, and then helped In evaluating Harbison's current claim of innocence, any reasonable juror would give substantial weight to Harbison's prior sworn admissions that he was in fact guilty of the crimes of which he now stands convicted. to recant those admissions, no reasonable While he now seeks juror would give credence to his current assertion of innocence given all of the evidence officer and of Harbison's his guilt. candid Given statements the totality to of the probation the evidence, Harbison failed to demonstrate that '''it is more likely than not and is impossible to square with her prior sworn description of the assault upon Bouchier and Bouchier's removal from Dalton's home. Cardell Banks's testimony also supports the conclusion that Harbison actively participated in executing the plan to rob Bouchier. 23 that no reasonable beyond a (4th juror would reasonable doubt.'" Cir. 2010) (quoting have Sharpe v. Schlup v. found petitioner Bell, Delo, 593 513 U.S. guilty F.3d 372, 298, 377 327-28 (1995)) . IV. Accordingly, will be granted. action will be CONCLUSION Respondent's The § 2254 dismissed. Motion to Dismiss Petition will A certificate of be (ECF No. 4) denied and the appealability will be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to counsel of record. It is so ORDERED. Robert E. /s/ Payne Senior United States District Judge Richmond, Virginia Date: September 3*^ , 2015 24
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