Fitz v. Warden, Nottoway Correctional Center, No. 7:2018cv00033 - Document 25 (W.D. Va. 2018)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 10/31/2018. (slt)
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CLERK' S OFFICE U.S.DIST.COURI AT ROANOKE,VA FILED IN THE UM TED STATES DISTRICT CO URT FOR THE W ESTERN DISTRICT OF W R GIM A ROANOKE DIVISION û2T 31 2218 JULI A c DUD BY: D W C cuE /' D ELA N O D O NTA E FITZ, ) ) ) ) ) ) ) ) Petitioner, V. W ARDEN,NOTTOW AY CORR.CTR., R espondent. C A SE N O .7:18CV 00033 M EM OM NDUM OPIM ON By:H on.Glen E.Conrad Senior U nited StatesD istrictJudge Delano Dontae Fitz,aVirginia inm ateproceeding pro K ,filed tllis petition fora m itof . habeas corpus!pursuant to 28 U.S.C. j 2254,challenging the validity of his convictions. Respondentfiledamotiontodismiss,andFitzrespondqd,makingthematterripefordisposition. Afterreview oftherecord,thecourtconcludesthatthepetitionm ustbedism issed. 1. Background1 Q The Courtof Appeals of Virginia sllmmarized the evidence of Fitz's convictions as follow s: Fitz v. Warden, Nottoway Correctional Center On Decem ber24,2013,Traman Tllrnerarrived atEdashaW illinm s'houseto pick up hischildren. W illiams,the motherofthe children,wasinvolved in a rom antic relationship with Fitz atthe time and Fitz was also atthe residence. W illinms explained thatFitz wentoutside while she was getting the children ready. She saw Fitz and Tum er speaking to each other and heard Turner say:Gçwhen you com e bring yotlr big toys.'' Fitz then produced a gun and shotTurner. Fitz threatened W illiam swith thegtm and shotTurnerthreem oretim esin theback as D lrnertried to escape. Fitz then fled the scene. Turnerdied as a result of the gtmshotwotmds. W illiam sindicated thatTllrnerwasnotarmed and thatshe did nothearhim threaten Fitz orm ake any aggressivem ovements. Two neighbors saw the shooting and testified thatFitz shotthe victim at close range - Erst in the chestand then in the back. A nother neighbor saw the two men outside and heard Fitzaccuse D lrnerofhaving fldisrespected''him . She also heard thevictim m ake a statem entaboutçibig toys''and thatthere would be :170 roundsnexttime.'' She wentinside and mom entslatersheheard lre. Dontray Haughton,Fitz'sfriend,testified thatFit; anived athisresidence and asked Haughton to retrieve llis gun for him . Haughton explained thatFitz Doc. 25 'Thisopinionomitsinternalquotation marks, citations,and alterationsunlessotherwisenoted. Dockets.Justia.com agpearedshaken.Haughtonretrievedthegun from atrmshcanandretllrneditto Fltz.Fitztold Haughton thatheshotthevictim Gçfornoreason.'' Jnm ie Chacon testified that he visited his nephew, one of W illinm s' children,in Decem ber2013. Fitz wasatthe residence,showed Chacon his gun, m ade gang signs,and statedhisintention to killTurner. Stacy Taylorshared ajailcellwith Fitz. Fitzadmitted to Taylorthathe killed Turnerand offered TaylordrugsifTaylorwould ldllW illinmsand threaten one ofthe other witnesses. Severalothermen who had been jailed with Fitz testified Fitz adm itted killing Tmmer,had previously stated his intention to kill Turner,andplnnned tohavethewitnessesagainsthim killed orthreatened. Fitzv.Commonwealth,No.0770-15-3,slip op.at4-5(Va.Ct.App.Dec.4,2015),ECF No.172. Thecircuitcourtinitially appointed Aaron GravesasFitz's counselbutlaterdisqualified him fora conflictofinterest. The courtthen appointed LouisNagy and granted Nagy'smotion fora continuance. N agy asked fortwo m ore continuances,citing volum inous evidence and the Comm onwealth'sfailure to disclose exculpatory witnessstatements. The trialcourtgranted the m otionsand fotmd thatFitz had waivedllisspeedy trialrightseach time. A jury convicted Fitz ofsecond-degreemurderand use ofafirearm in commission of mtlrder,and he pleaded guilty to possession of a firenrm after a conviction of a non-violent felony. The Rockingham County Circuit Courtsentenced Fitz to fortp eightyears in ptison. After the trial,the trial courtdenied Fitz's m otion to setaside the verdict,and the Courtof Appeals and the Supreme CourtofVirginia denied his direct appeals. Fitz did notfile a state habeaspetition.TherespondentacknowledgesthatFitz'spetition istimely. II. Fitzbringssix claim s..1! ThetrialcourterredwhenitdeniedFitz'smotiontostriketwojurorsforcause' , 2Fitz nllmbered some claims and interspersed othersthro' ughouthis Elings. SeeECF Nos.1,2,7. The courthasreorganized and renumberedhisclaimsinanattempttof'ully addresshismg lments. 2 II. Thetrialcourtabused itsdiscretion when itremoved Fitz'scotmselofchoice,Aaron Graves,andreplaced him with LouisNagy; 111. Thetrialcourterred in finding the evidence suffclentforboth second-degree mtlrder and use ofa firearm in mtlrder; 1V . The trial court erred in giving an incom plete definition of m alice,which did not includethçrequired explanation ofheatofpassion; V. Counselwasineffectivefor: A. failing to callrequested witnesses; B. failing to preparejury instnlctionsin advanceoftrialasrequired tmderVirginia m les; C. failing to adequately hw estigate,provideadversarialrepresentation,and challenge theCommonwealth'swithholdingofBrad/ materialanduseofknowinglyfalse statem ents, testim onies, and evidence, and for requesting continuances that waived Fitz'sspeedy ' trialrights; D .laboring under divided loyalties thatprevented cotmselfrom providing zealous representation; E. failingtopressfordiscovery; F. failing to challenge lnvestigator Spiggle's testimony thatFitz told him thatthe victim had disrespected him ; G. failing to investigatethevictim 'sbackground,interview witnesses,andpay travel expensesforpotentialdefensewitnessAaron Strode to testify on Fitz'sbehalfat trial- 3Bradvv. Maaland,373U.S.83(1963). H. re/ sing to m ove to dism iss as vindictive five additionalchargesbroughtby the Comm onwealth' , refusing to suppress gaudulentuse ofjailhouseinformation and state witnesses providing falsetestim ony in exchangeforfavorfrom the state; J. conceding hism otion to compelBradv information f' rom the state regarding the victim 'scrim inalbackground and gang afliliation; K.failing to objecttothejury instruction defining malice on the ground thatitdid notadequately defineIlheatofpassion'';and VI. Fitz'sdueprocessrightswereviolated because: A .the Comm onwealth failed to timely disclose Bradv materialwhich caused delay and deprivedhim ofhisrightto aspeedy trial,and thetrialcourtfailed to hold the Comm onwealth responsibleforitslatedisclosm e; B. the Comm onwea1th forced Fitz to choose between hisrightto a speedy trialand hisrightto effectivecounsel' , C. the trialcourtwas biased againstFitz and en' ed when itaccepted Gve additional indictmentswhich were motivatedby vindictiveness; D. the trial court erred when it allowed counsel two continuances against Fitz's w ishes; E. thejurywmsbiasedduetomediacoverage; the trial courtforced Fitz to choose between his right to effective assistance of cotmselandhisrightto afairand impm ialtrial' , G. the trialcourten'ed in appointing Nagy as defense counselbecause Nagy had a heavy workload and wasnotprepared to go forward in atim ely m nnner; 4 H .theComm onwea1th solicited falsetestimony; 1. the prosecution presented testim ony from inm ates in exchange for reduction or dism issaloflengthy sentences; J. lnvestigatorSpiggletnm peredwith the gunshotresiduetaken 9om thevictim ;and K .Fitz wasrelocated a few timeswithin Rockinghnm Cotmty Jailforunnecessary reasonsin orderto placehim nearorin apod with stateagents. 111. Exhaustion and ProceduralD efault &GA federalcourtm ay notgranta writof habeas corpus to a petitioner in state custody tmlessthepetitionerhasfrstexhausted hisstateremediesby presenting llisclaim sto thehighest statecoult'' Bakerv.Corcoran,220 F.3d 276,288 (4th Cir.2000). To meettheexhaustion requirem ent,a petitionerlsm usthavepresented to the statecourtboth the operative factsand the controllinglegalprinciples.''Kasiv.Angelone,300F.3d487,501-02 (4th Cir.2002).GçA claim thathasnotbeen presented to the higheststatecourtneverthelessmay be treated asexhausted if itis clearthatthe claim would be procedtlrally ban'ed understate 1aw ifthepetitionerattem pted to presentittothestatecourt.''Baker,220 F.3d at288. Claimsthatareprocedurally barred tmderstate1aw arebarred from federalhabeasreview uzllessthepetitionercan demonstratecauseforthedefaultaridprejudicefrom theconstitutional error,oramiscarriageofjustice.Baker,220F.3dat288;Grav,518U.S.at162.To show cause, apetitionermustdemonstratethattherewereGGobjectivefactors,''externalto hisdefense,wlzich im peded him from raising llis claim at an eadier stage. M urray v.Carrier,477 U .S.478,488 (1986). To show prejudice,apetitionermustestablish thatthealleged constitm ionalviolation worked to his acmal and substantial disadvantage, infecting his entire trialw ith en' or of a constim tionalm agnitude. Id. UnderM artinez v.Ryan,566 U.S.1(2012),afederalhabemspetitionermay satisfy the tçcause''requirementofan otherwiseprocedurallydefaultedclaim ofineffectiveassistanceif:(1) the ineffective assistance claim 'isa Gtsubstantial''one;(2)the <tcause''fordefaultGçconsistsof therebeingno counseloronlyineffectivecotmseldtlringthestatecollateralreview proceedinf'; (3)llthe state collateralreview proceeding wasthe initialreview proceeding in respectto the ineFective-assistu ce-of-kial-cor selclaim''5 'and (4) state 1aw llrequires thatan ineflkctiveassistance-of-tzial-cotmselclaim beraised in an initial-review collateralproceeding.'' Fowlerv. Jovner,753F.3d446,461(4thCir.2014).A iGsubstantial''claim isonethathasmerit.M artinez, 566 U .S.at 14. IV . Standard ofR eview To obtain federalhabeasrelief,a petitionermustdem onstrate thathe is G<in custody in violation ofthe Constimtion orlawsortreaties ofthe United States.'' 28 U.S.C.j 2254($. Under28U.S.C.j2254(*,however,afederalcourtmaynotgrantam itofhabeascopusbased on anyclaim thatastatecourtdecidedonthemeritsllnlessthatadjudication: (1)Eloesulted in a decision thatwas contrary to,orinvolved an umeasonable application of,clearly established Federallaw,asdetermined by the Suprem e CourtoftheUnited States; 0r (2)(Rlesulted in a decisionthatwasbased on an llnreasonabledetermination of thefactsin lightofthe evidencepresented in theStatecourtproceeding. 28U.S.C.j2254(* . dGW here,ashere,the statecourt'sapplication ofgovem ing federallaw is challenged, it must be shown to be not only erroneous, but objectively unreasonable.'' Yarborouch v. Gentrv, 540 U.S. 1, 5 (2003). Under this standard, çilaj state court's determination that a claim lacks m eritprecludes federalhabeas relief so long as tfair-minded 6 judsts'could disagree on the correctnessofthe statecourt'sdecision.'' Hanington v.Richter, 562U.S.66,101(2011)(quotingYarboroughv.Alvarado,541U.S.652,664(2004:. Discussion TherespondentassertsthatClaim sIthrough IIIareproperly presented forfederalreview butthatClaim sIV-VIareprocedurally barred. 1. Claim 1:Juror Im partialitym ias In Claim 1,Fitz contendsthatthe CourtofAppealsofVirginia erred when itdenied his claim thatth8circuitcourtshouldhavestrucktwojurorsforbias.'l tT he Sixth Am endm ent, made applicable to the states through the Fourteenth Amendment,requiresthatastateprovidean impartialjut'yin a11crirninalprosecutions.'' Porter v.Zook,898 F.3d 408,425 (4th Cir.2018). Generally,jtlrorsarepresumed to betrtlthfrland impm ial. Pom terv.Ratcliff,874 F.2d219,221(4th Cir.1989). 0n federalhabeasreview,a petitioner m ay overcom e that prestzmption by clear and convincing evidence of a strong possibility ofjurorbias. See28U.S.C.j2254(e)(1);W ellsv.M urrav,831F.2d468,472 (4th Cir.1987). Thebiasofajttrormay beacmalorimplied.United Statesv.W ood,299U.S.123,133 (1936).ActualbiasrequiresproofthatGGajuror,becauseofhisorherpartiality orbias,wasnot capable and willing to decidethe case solely on the evidencebeforeit.'' Porter,898 F.3d at423. M eanwhile, implied bias is conclusively presumed as a matter of 1aw under exceptional or extreme circllmstances. Conawav v.Polk,453 F.3d 567,586 (4th Cir.2006). Forexnmple, courtshavefound impliedbiaswhenjtlrorsmisledthepartiesregarding informationmaterialto an impartiality determination. See.e.g.,United Statesv.Bynum,634 F.2d 768,771 (4th Cir. 4UnderVa. Sup.Ct.R.3A:14(b),R' fhecourt,onitsown motionorfollowingachallengeforcause,may excuseaprospectivejurorifitappearsthejurorisnotqualiûed,andanothershallbedrawn orcalledandplacedin thejuror'ssteadforthetrialofthatcase.'' 1980)(orderingnew trialswhenjurorintwo separatecasesdidnotdisclosefnmilymembershad criminalconvictions);Porter,898F.3d at430-31(concluding thatthestate courtllnreasonably applied federal 1aw when the courtfailed to 5nd bias after a jtlror neglected to disclose relationshipswith 1aw eeorcementoffkers);see also M cDonough PowerEguipment.Inc.v. Greenwood,464U.S.548,554 (1984)(G:Thenecessityoftruthfulanswersby prospectivejurors ifthisprocessisto serve itspurpose is obvious.'). However,ajmor'shonestbutmistaken answerdoesnotmandate thatthe courtordera new trial. See M cDonough PowerEquipment. Inc.,464 U.S.at556 (refusing new trialin products liability case when jtzror honestly but mistakenly answered in the negative to a question aboutany injury resulting in disability or prolongedpain). Generally,voir dire examination servesto protectthe rightto an impartialjury Gçby exposingpossiblebiases,bothlcnown and lmknown,onthepartofpotentialjurors.'' Id.at554. Sr emonstrated biases in the responsesto questions on voir dire may resultin ajurorbeing excused forcause;hintsofbiasnotsufficientto warrantchallenge forcause may assistpartiesin exercising theirperemptory challenges.'' Id. Gr etermining whether ajtlror is biased orhas prejudged a case isdifscult''because the Constitution doesnotmandate a particulartestto determine whetherajurorhasthe Cçappropriate indifference,''thejtlrormay havean interestin concealingherownbias,andthejurormaybeunawareofthebias.Porter,898F.3dat425. TheFourth Circuithasheld: To be stlre,dueprocessdoesnotrequireanew trialeverytimeajurorhasbeen placed inapotentially compromising situation. Rather,dueprocessmeansajury capable and willing to decidethe case solely on theevidencebeforeit,and a trial judgeeverwatchfllltopreventprejudicialoccurrencesandtodeterminetheeffect ofsuch occurrenceswhen theyhappen. Id.at426. However,onceajurorhasindicated bias,atrialjudge may notsimply acceptthe 8 juror'spromisetobefairandimpartial.lrvinv.Dowd,366U.S.717,723(1961). W hen a crime receivespublicity,the Supreme CourtoftheUnited Stateshasexplained: ç4under the constimtional standard,. ..the relevant question is not whether the comm tmity remembered the case,butwhetherthejurors ...had such fixed opinionsthatthey cotlld not judgeimpartiallytheguiltofthedefendant.''Mu'M inv.Virzinia,500U.S.415,430(1991). A . FactualBackground The record establishes the following. First,the jtlror working atthe Departmentof Corrections stated atvoir dire that,even though she had heard comm ents aboutthe case,she could remain fairand impartial. TrialTr.214-15,Jan.5,2015,ECF No.17-8. W hen the court broughtthejurorback outforadditionalquestioning,thejurorsaid thatshehad heard thatthe defendantGlfeltdisrespected.'' TrialTr.219. She told the parties:GGW el1,where1 work w1t11the Departm ent of Corrections, you know, you hear that a lot, you lcnow, that someone feels disrespected and they som etim eswantto takem atterinto theirown handsand thatîortofthing.'' TrialTr.219-20. She acknowledged thatthe tGdisrespect''com ment resulted in her having a negative cormotation in herhead toward Fitz. TrialTr.220. However,she specifcally noted: tlButatthe sam e time Ifeelthatlcould be fairand impartial...It's kind ofthat,you know, there again 9om where Iwork,butsometim es,you know,we m ightfeeldisrespected butnot wantto retaliate or whatever.'' TrialTr.220-21. She also told counselthatshe thought she couldputherinitialfeelingcom pletely aside.TrialTr.222. Defense cotmsel argued extensively for striking the jlzror: tGduring the cotlrse of questioningsheadmittedthatsheheard(thatFitzfeltdisrespected)and shewasgestmingtoward herm idsection likeitwasa gutttlral,like a gutfeeling aboutthiswhere itimpacted herstrongly and itimpacted herimm ediately upon hearingthis.''TrialTr.223. Thetrialcourtdisagreed: I observed her as well and she was obviously stnlggling to answer why that comm ent was something that obviously she testified that she heard. And I understand thatshew orksin the Departm entofCorrections,butsheindicated on your cross exnm ination she was able to stop and say waita second essentially I can be impartial. And Iasked herbefore she was broughtoutand asked these questionsand she wasasked afterwardswhethersheçould putaside whatshehad heard andjudgeitptlrely on theinstnzctions,purely on the1aw presented. And the type of statement that's being attributed again is whether it com es into evidence ornot,whetherit'sproven or not,she's indicated the ability to weigh that,assess it,listen to itand make determinations and follow instructions. Her bodylangjzagebespeakstheoppositeofwhatyou'reindicatingtomewhichisher desire to m dlcate to you that she can be impartialto whatsomeone stated they heard in the paper. Forthose reasons Ideny yourm otion to strike for cause on Ethejurorl.AndIwouldnotethattheopiniontodisqualifyajurorisanoginion ofthatfixed characterwhich repels the presumption of innocence in a cnm inal case and in whose mind the accused stands condemned already and she hasnot indicated that. She has indicated she can 1ay aside her views,render a verdict based solely on thelaw and theevidence in thecase. And again herdemeanoris quiteobviousin that. TrialTr.225-26. Second,thetrialjudgeandthejurorinvolved with apending criminalsentencinginthe Rockingham Cotmty CircuitCourthad tllisexchange dtlring voirdire: Jm or:And given the,the case is pending sentencing involving m y fnm ily,we werehelped by a 1otoffolksin Rockingham Cotmty. So Ididn'trecognizethem by nam e,butit'spossiblethatImightrecognize them by face once,once the trial starts Court: Okay. And that's a circumstance in cases where we have this many witnesses.Urlforttmatelywecan'tjustparadeeveryonein ... Jtlror:Right. Court:...foryou to look. Letm e ask you this,based on the officersthatmay have assisted yourfam ily before,are you ableto putasidethatknowledge ofthat person andjudgetheirtestimonyimpartially? Jtlror:Absolutely. Court:Al1right. And them ere factthatthey m ay beapoliceoftk er,thatdoesn't create any issueswith you deciding whethertheirtestim ony isfalse ortnze on an impartialbasis,correct? 10 Jm or:Notthatl'm aw areof. TrialTr.80.Healso acknowledged thesignitk antimpactofthecdme on thefam ily, and thathe wasinvolved with the victim /witnessprogram atthe Comm onwealth'sAttom ey'softk e. Trial Tr.91. Nevertheless,he informed defense cotmselthathe believed thathe could putaside any work w1t11thepoliceand theCommonwea1th Attorney'sofficeand judgethecaseimpartially based on the evidence. TrialTr.86,91. Lateron,thejumrstated thathe had somepotential diffculty with the sentencing phase regarding the death penalty;however,he reasserted thathe had no issueregarding guiltorinnocence. TrialTr.102. Specitkally,thejurortold thecourt thathe didn'tfeelthathis beliefs aboutthe death penalty Gûwould affectanything abouthow I would approach a verdictin the case,''and,if the death penalty was notpartof the case,his Edconcernswould bealleviated.''TrialTr.112-13. Cotmselarguedthejurorbestruckforcause: The appearaneeofimpartiality when we have aperson who hasgota very higllly emotionally charged casesittinginjudgmentofave+ highly emotionalizedcase. Thereisapparently a child involved in thatcase. There isa child involved in this case. N otnecessadly as a victim . Ithink he said enough tllings that1ed m e to believehe'snotgoing tobeableto sitinthiscase impartially. TrialTr.118. Thecourtdisagreed: I've had the opportunity to observeM r.Hall. He'svery open abouthisanswers, wasn'thesitanttobringupissueswhenhefeltso.Justlike(otherjurors).Andhe indicated thathe could be fair and impartial. The only thing thateventually got closeto itwaswhethertherewasgoingto betheissue ofthedeath penalty,which ofcoursehewillnotbeinstructed,the death penalty isn'ton thetablein the case, and so that concern is not one. He said he can follow instructions that we're géing to give lzim . And he wasvery clearabouthisability to be impartialin the case. And again his demeanorjust bespoke of genuineness in the way he responded. TrialTr.119. On directappeal,theCourtofAppealsofVirgirliaconcluded: 11 Duringvoirdire,oneofthepotentialjurorsindicated thatshehadheard aperson discuss the case after having read a newspaper article. The person stated that appellanthadStsaidthathehadfeltdisrespected.''Thejurorexplainedsheworked atthe Department of Corrections and that she often heard people complaining abouthavingfeltdisrespected.Thejuroracknowledjedthestatementgavehera Glnegative impression''of appellantbut also emphaslzed thatshe EGcould be fair and impartial.'' She indicated she could putaside whatshe heard,consider1he evidencepresented attrial,andfollow theinstnzctionsofthecourt.Thetrialcourt deniedappellant'srequesttostrikethejtlrorforcause. Anotherjtlroriatbrmedthecourtthatafnmily memberwasthevictim in an indecentliberties case in which sentencing was stillpending in Rockingham County. Thejmorstated thathe could remain fairand çGabsolutely''judge the witnesses' testim ony impm ially. He also confinned he could follow the instnlctionsofthe court. The trialcourtfound thatthejuror'sçûdemeanorjust bespokeofgenuineness in the way he responded''and denied appellant'srequest tostrikethejurorforcause. Both prospectivejurorsindicatedthey could renderaverdictbased solely on thelaw and theevidence in the case. They adequately demonstrated they could fairly review the evidence and make an im partialdemsion. A ccordingly, we find no enorin thetrialcourt'srefusalto strike the prospectivejmors for cause. The trial court observed the jtlrors, evaluated their responses,and determ ined that they could fairly try the issues presented. Based on otlr exnmination oftherecord,wefind thatthisdeterm ination wasnotplainly m ong. Fitz v.Comm onwea1th,No.0770-15-3,slip op.at2-3. B . Fitz's A llegations Fitzassertsthat(1)thejuroremployedbytheDepartmentofCorrectionswasbiased becauseofher'lnegativeimpression''ofFitzregardingtheGûdisrespectedstatement''(2)thejuror involved in apending sentencing in the Roclcinghnm Cotmty CircuitCourthad aconflictof interest, and(3)thernediasensationalizedFitz,st ' ria1.5 C . A nalysis Fitzfailsto sàow thattherewassuchastrongpossibilityofjtlrorbiasthatthedecision of the Court of Appeals of Virginia should be overturned. At the threshold, Fitz has not 5Fitzalso aversthattheprosecutprexacerbated thejurors'biasby:overreaching,using falsetestimony, mischaracterizingevidence,andinkoducingextremelyirrelevantprejudicialinformation.However,hefailstonote anyspecificactionbytheprosecutionthatresulted injurorbias.Therefore,thecourtwillnotaddresstheadditional allegations. SeeNickerson v.Lee.971F.2d 1125,1135 (4th Cir.1992)abrocated on othergroundsbv Gray v. Netherlahd,518U.S.152,165-66(1996)(habeaspetitionermustpresentevidencesupportinghisclaims). 12 dem onstrated im plied bias by clear and convincing evidence. Plaintic s allegations and the record do notindicate an exceptionalsimation where thejtlrorsmisled the parties or had a personalconnectiontothecase- hehasnotallegedthatthejurorswithheldmaterialinfonnation, were dishonest, or had relationships with parties or witnesses, or that other circllm stances establishedjm orbiasasamatteroflaw.Second,Fitzhasnotshownthatthejurorswereactually biased.Bothjurorsstatedthatthey could adequatelyreview theevidenceandimpartiallydecide Fitz'sguilt. Asto thejuroremployed by the DepartmentofCorrections,despite EGdisrespect'' having an imm ediate negative connotation in herm ind,she acknowledged thatpeople often feel disrespected anddo notreactin çriminalways. Shealso asserted thatshewouldjudgethe case impartially based on the evidence presented. For thejurorhwolved in a separate criminal proceeding,he stated thathe could remain fair and Gûabsolutely''judge the case impartially. 1Furthermore,Fitz's case is notoverly similarorrelated to the sentencing thatthe jtlrorwas involved in- Fitzmurdered anadultin gontofchildren;thejuror'scaseinvolvedasexualcrime againsta minorvictim .6 Lastly,althoughthejtlrormentioned difficulty with thedeathpenalty, theissuewasirrelevantbecausethedeath penalty wasnotapossibilityin Fitz'scase. As for the third allegation regarding overall media sensationalism, Fitz fails to demonstratethatthemedia coverage caused thejurorsto have ççsuch fixed opinionsthatthey couldnotjudgeimpartially theguiltofthedefendant.''M u'M in,500U.S.at430. Somejtlrors fully admitted to headng orreading aboutFitz'scrime. However,theirexposlzre wasrelatively limited,andtheSupremeCourtdoesnotrequirejurorstobecompletelytmawreofthefactsofa case. Murnhv v.Florida,421U.S.794,800-01(1975)Cioualifiedjtlrorsneed not,however,be totally ignorantofthe facts and issues involved.'). Furthermore,the parties and the court 6Thejtlroralsotoldthecourtthat,althoughhewouldbepresentatthesentencinghearing,hedidnotplan onbeingdirectly involved ortestifying. 13 repeatedly questionedjtlrorson whethertheycouldputasideany prior,externalknowledgeand renderafairand impartialverdictbased on the evidencepresented in the trial. Thejmorsstated thatthey could do so. Fitzhasalso notasserted any specifk evidence showing thatthejm ors had tmconstimtionally fixed opinions,wllich is fatalto his claim . See Nickerson, 971 F.2d at 1135. Therefore,Fitz hasnotdem onstrated by cleaz and convincing evidencethatthe Courtof AppealsofVirginia'sdecision wascontrary to,oran tmreasonable intep retation of,federallaw, oran uv easonable determ ination ofthe facts. ' I' he courtwillgrantthe m otion to dismiss asto Claim 1. 2. C laim II:ConfictofInterest In Claim 1I,Fitz aversthatthe CourtofAppeals ofVirginia en'ed when itaffirmed the trialcourt'sdecision to rem ove Gravesascounseldueto a conflictofinterest. Fitz arguesthat appointing co-counsel could have cured any potential conflict because the simultaneous representation only existed fortlu'ee days,and Graves had the representation of the potential witness Gûthnzstupon''M m . The CourtofAppealsofVirginia fotmd thatthe trialcourtdid not abuseitsdiscretionwhen itrejectedFitz'swaiveroftheconflictandremovedGraves: W hen the Commonwealth leanaed that appellant's original counsel, Aaron Graves, was simultaneously representing an inform ant the Com m onwea1th planned to callas a witness againstappellant,the Commonwea1th filed a m otion to determine if a conflictexisted. Afterhearing argllm entof cotmsel,the trial court concluded the conflict could only be resolved by relieving appellant's counseland appointing new cotmsel. f' U rial courts must be allowed substantial latimde in refusing waivers ofconfictsofinterestnotonly in those rare cases where an acm alcontlictm ay be demonstrated beforetrial,butin the more common cases where : potentialfor coM ictexists which m ay or m ay not burgeon into an actual conflict as the trial progresses. This standard gives trial courts broad latitude because the likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict,even forthosethoroughly fnmiliarwith 14 crim inal trials. lt necessarily follows thatthe trial courthas a llnique obligation to foresee problem s over representation that m ightariseattrialand head them offbeforehand. Appellate courtsm ay rely heavily on a trialcourt'sinstinct and judgment based on experience in mnking its decision. It shouldbeno surprise,then,thatdifferenttrialcourtsfaced with the sim ilarcircllmstanceswould reach opposite conclusionswith equal justification,but that does not mean that one conclusion was Gçright''and the other ççwrong.'' The evaluation of the facts and circllm stancesofeach case tmderthisstandm'd,therefore,m ustbe leftprimarily to the informedjudgmentofthetrialcourt. W hen reasonable jurists could disagree,the trial court's ruling should stand on appeal. Johnson v.Comm onwea1th,50 Va.App.600,605-06,652 S.E.2d 156, 158-59 (2007)(emphasisinoriginal). In thiscase,thetrialcourtpermissibly rejected appellant'swaiverofthe ùonflict of interestand relieved his cotmsel. The trial courtdid not abuse its discretion in disqualifying Graves. Fitz v.Comm onwea1th,No.0770-15-3,slip op.at3. The courtagrees with the state court's decision. ln denying Fitz's appeal,the CourtofAppeals ofVirgirlia closely tracked the stnndard thatthe Suprem e Com' tofthe United States has setoutforattorney conflicts ofinterest. See W heatv.United States,486 U.S.153, 163 (1988) (:&(Tqhe district courtmust be allowed substantiallatimde in refusing waiversofconflictsofinterest.'). Also,theFourth Circuithas previously nlled thatthe districtcourthasGûsuftk iently broad discretion to rule withoutfearthat itissetting itselfup forreversalon appealeitheron zight-to-counselgroundsifitdisquali/esthe defendant's chosen lawyer,or on ineffective-assistance grounds if it permits conqict-infected representation ofthedefendant.''United Statesv.W illiams,81F.3d 1321,1324 (4thCir.1996). Asto Fitz'sfrstallegation,even though thesimultaneousrepresentation waslimited,the potentialcontlict of interestwas serious because the represented witnesswas adverse to Fitz. See Ldxsat 1324-25 (affirming disqualification ofdefendant's attom ey because he would have beenrequiredto cross-examineaformerclient).Therefore,thecircuitcourtwaswellwithin its signilk antdiscretion when itdisqualified Graves. Second,Fitz assertsthatthe conflictatissue fallswithin a narrow exception to the tlhot potato''t'ule known asthe ilthnlstupon''doctrine. The hotpotato rule G'isbased on the notion thata lawyershould notbeallowed toproftfrom aconflictofhisown m aldng.'' Flvin: JInc.v. TA OperatingCop .,No.1:06CV30TC,2008W L 648545,at*4 (D.UtahM arch 10,2008);see alsoPickerv.Int'l.Inc.v.Vadan Assocs..Inc.,670F.Supp.1363,1365 (N.D.Ohio 1987)(çtA frm m ay notdrop a clientlike ahotpotato,especially ifitisin orderto keep happy afa<m ore lucrativeclient');AltovaGmbllv.Syncro SoftSRI,,320F.Supp.3d314,318(D.M a.July26, 2018)($GSomecourtshaveadopted thejudicially created hotpotato doctrinein theirconflictof interestanalysisby holding thatlawyersshould,asageneralm atter,rem ain loyal'to theircurrent clieritanddeclinetotakeonanew,conflictingrepresentation.''). M eanwhile,severalcourts have tûgenerally held that,when a contlict arises which the challenged 1aw firm played no role in creating, cotmsel may avoid being disqualifed 9om representing both ofitsclientsbym oving swiftly to severitstieswith one ofthem ,in such away aStominimizePrejudicetotheOther.'' Flyin: Jlnc.,2008 W L 648545,at*4.7 M odelRule 17 . statesthefollowing regarding such contlicts: Unforeseeable developments, such as changes in corporate and other organizational affliations orthe addition orrealignm entofparties in litigation, mightcreate con:ictsin the m idstofa representation,as when a com pany sued by the lawyeron behalf ofone clientisboughtby anotherclientrepresented by the lawyer in an tmrelated matter. Depending on the circum stances,the law yer may havetheoption to withdraw from one oftherepresentationsin orderto avoid the cov ict. The lawyerm ustseek courtapprovalwhere necessary and take steps to minim ize hnrm to the clients. The lawyer m ust continue to protect the cov dencesofthe clientf' rom whoserepresentation the lawyerhaswithdrawn. 1An example of a thrustupon contlictwould be:a 1aw firm representsCompany A and Company B. Company A suesCompany C. Sometimeafterlitigation begins,Company C pmchasesCompany B. Thelaw fil' m simultaneously representsCompany A and a subsidiary ofCompany C,who havebecomeadversariesbecauseofa transaction by the opposing party. The contlictaoccurred by no faultofthe law flrm,thusimplicating the ittlmzst upon''doctrine. 16 M odelRulesProplConduct1.7 cmt.5. The courtcnnnot fnd any example of the hot potato doctrine applying in a criminal context. Courtsoriginally created the hotpotato doctrine for conflicts arising outof cop orate restnzcturing,and the standard forattom ey conflicts of interestis differentfora civilcase than foracriminalcase.SeeRnmosv.CowanSvstems.LLC,No.13-3839,2015WL 8664279,at*3 (D.N.J.Dec. 11,2015) (iW witness called by the prosecution to testify against a criminal defendantm ay indeed placecotmselin a conflictposition ifherepresentsboth the defendantand theadversewitness.Thesamereasoningdoesnot,however,applyin acivilcase.'').Incriminal trials,courtsgenerally do nothave to wony abouta lawyerwithdrawing from a clientin orderto maintain representation ofa lligherpaying client. Thus,the courtconcludesthatthe hotpotato doctrine does notapply to Graves'disqualification. Regardless,the state court's decision was notum easonable orcontrary to federal1aw because no clearly established federal1aw requires statecourtsto analyzethethnlstupon exception in crim inalcases. Therefore, because of the seriousness of Graves's potential contlict, the significant discretion aflbrded the trialcourtin contlictdeterminations,and the tmavailability ofthe hot potato doctrine in the crim inalcontext,the courtconcludesthatFitz hasfailed to dem onstrate that the state court's decision to disqualify Graves was contrary to, or an tmreasonable application of,federallaw,or an um easonable detennination ofthe facts. The courtwillg' rant them otion to dismissasto Claim II. 3. Claim 111:Sufficiency ofthe Evidence In Claim 111,Fitz asserts thatthe CourtofAppeals ofVirgilaia erred when itfotmd the evidence sufficientto supporthis convictions for second-degree murderand use ofa firenrm in 17 com mission ofa mtlrder. Fitz alleges thathe acted in self-defense because he panicked after Tllrnerthreatened him . Federal habeas review of a claim challenging the constitutional sufficiency of the evidence supporting a conviction islimited to determining Gçwhether,afterviewing the evidence in the lightm ost favorable to the prosecution,anv rationaltrier of factcould have found the essentialelementsofthe crime beyond a reasonable doubt.'' Jackson v.Virginia,443 U .S.307, 319 (1979). In determiningwhetherthestatecourtreasonably appliedthisprinciple,thefederal habeascourtm ustdetermine whetherthe state court'sdecision is xninimally consistentwith the record,Bellv.Jarvis,236F.3d 149,159(4th Cir.2000),andmustgivedeferencetothefindings ' offactmadebyboth thetrialandappellatecourts,28U.S.C.j2254(*;Howardv.M oore,131 F.3d 399,4d6(4th Cir.1997).Thefederalcourtdoesnotweightheevidenceorconsiderthe credibilityofwitnesses.UnitedStatesv.Arrinzton,719F.2d701,704(4thCir.1983). On directreview,the CourtofAppealsofVirgirliaheld: In thiscase,thejury accepted thetestimony ofthe Commonwealth'switnesses and rejected Fitz's version ofthe events....The record supports the jury's credibility determ ination and dem onstrated that appellant initiated the congontation and shotthe victim withoutjustification. The Commonwealth's evidence was com petent,Was not inherently incredible,and was sufticient to prove beyond a reasonable doubtthatFitz w as guilty of second-degree mttrder and use ofafrenrm duringthecom m ission ofa felony. Fitz v.Com monwea1th,No.0770-15-3,slip op.at 5. The courtagreesw ith the state court's decision. The Com monwea1th presented compelling testimony gom ,nm ong others,W illinm s, three neighbors,Haughton,Chacon,and Taylor,thatFitz shot and killed an tmnrmed Turner withoutjustifcation,and thejury credited thosewitnesses'statementsin finding Fitz guilty of second-degreem urderanduse ofasrenrm duringthecom mission ofa felony.Afterviewing the evidencein the lightm ostfavorableto the prosecution,thecourtfindsthatarationaltrieroffact 18 :1 could have fotmd the essentialelem entsofthe crim esbeyond a remsonable doubt, and the state court's decision is consistent with the record. Therefore,the court concludes thatthe state court'sadjudication wasnotcontrary to,oran unreasonable application of,clearly established federal1aw or based on an tmreasonable determination ofthe facts. The courtwillgrantthe m otionto dismissasto Claim 111. 4. Claim sIV -VI:Exhaustion and ProceduralD efault First,Fitzpresented Claim IV to the Suprem e CourtofVirginia,butthe courtupheld the lower court's ruling thatthe claim was procedurally defaulted under Virginia's contem porary objectionnlle,Va.Sup.Ct.R.5A:18. SeeFitzv.Commonwea1th,No.0770-15-3 (Va.Ct.App. Feb.9,2016),ECFNo.17-2;Y1stv.Nllnnemaker,501U.S.797,803(1991)(establishingGçlooktïough''doctrine for summary decisions). Va.Sup.Ct.R.5A:18 is an independent and adequatestategrotmd forproceduraldefault. SeeW eeksv.Almelone,176 F.3d 249,270 (4th Cir.1999)F irginiacontemporaneousobjection rule,Va.Sup.Ct.R.5:25,isindependentand adequate state grotmd);Gutersloh v.W atson,No.7:10CV00083,2010 W L 3664507,at*3-4 / (W .D.Va.Sept.17,2010)(Va.Sup.Ct.R.5A:18isan independentand adequatestategrotmd). Therefore,Claim IV isprocedurally bared from habeasreview. Second,Fitz neverpresented Claims V and VIto the Supreme CourtofVirginia. Fitz cnnnotnow return to state courtto properly exhaustllisclaim sbecausellisdirectappealisfinal andthe statute oflimitationswould barany habeaspetition in the state cotut See Va.Code j 8.01-654(A)(2). Therefoze,ClaimsV and V1aresimttltaneously exhaustedanddefaulted under Baker. See Baker,220 F.3d at288. Lastly, Fitz fails to excuse his defaults because he has not demonstrated cause and prejudiceoramiscaniageofjustice. First,Fitzhasnotshownthatobjectivefactors,externalto 19 M sdefense,prevented him 9om properly raising the claim q,orthatthe alleged constimtional * . errorsinfected hisentizetrial. Second,Fitzdoesnotraisean actuall nnocenceargament.: 'Ihird, M artinez does notapply bccause Fitz did notflle a state habemspetition. Sce Fow lerv.Joyner. 753 F.3d at461 (exçusing ineffective or no counselat initlal state collateralprocecdlng). n erefore;Clm'msIV tk ough VIareprocedu ally defaulted,and thecourtwillgrantthe motion to dlmissastotheseclaims. W . C onclusion Forthereasonssiatei thecourtwillwantthemotionto dismiss.Thepetition ispartially defaultedand otherwisewithoutm erit.An appropdateorder* 1enterthisday. ' The Clerk is di rected to send copi es ofthis memorandum op inion and accompanying î '''* . orderto Fitzandto counselofrecordforRespondent. ENTBR:'nusg l* day ofoctober, 2012. . SeniorUnited StatesDiskictJudge 8Fitzdoesnotargueacolorableclaim ofactuslinnocenceunderSchlun v.Delo.513U. S.298(1995),that would allow forreview ofhisclaimqregardlessofdefault. Therefore,theco> willnotaddressthemiscnM ageof - justiceexception.SàeBurketv.Anaelone.208F.3d l72,183l1.10(4thCir.2000)(reasonlngthatbecausepetitl 'oner bearsburdeatown-qeactualinnocence,acourtneednotconsideritifnotassertedbypetitionerl-' 20
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