Hash v. Johnson

• Decision Date: 28 February 2012
• Docket Number: Civil Case No. 7:10–cv–00161.
• Parties: Michael Wayne HASH, Petitioner, v. Gene M. JOHNSON, Director of Virginia Department of Corrections, Respondent.
• Court: U.S. District Court — Western District of Virginia

845 F.Supp.2d 711

Michael Wayne HASH, Petitioner,

v.Gene M. JOHNSON, Director of Virginia Department of Corrections, Respondent.

Civil Case No. 7:10–cv–00161.

United States District Court,

W.D. Virginia,

Roanoke Division.

Feb. 28, 2012.

Eric H. Feiler, George Peter Sibley, III, Matthew Paul Bosher, Hunton & Williams, LLP, Richmond, VA, for Petitioner.

Eugene Paul Murphy, Office of the Attorney General, Richmond, VA, Respondent.

MEMORANDUM OPINION

JAMES C. TURK, Senior District Judge.

This matter comes before the Court on Petitioner Michael Wayne Hash's (“Hash” or “Petitioner”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss. Hash alleges that he has been imprisoned in violation of his right to due process because the Prosecution and the Culpeper authorities concealed their arrangement with prosecution witness Paul Carter (“Carter”), and more generally, engaged in a pattern of nondisclosure and deception during the prosecution of Hash's case. Hash further alleges that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to investigate Carter and failing to present an alternate theory of the crime at trial. For the reasons stated herein, Hash's request for habeas relief with respect to each of his claims is GRANTED.

I. Background and Procedural History¹

The history of this case is extensive. Because the analysis turns on specific statements made during trial and testimony from the state and federal habeas proceedings, the Court begins with a higher level overview of the case. More specific details and verbatim statements are reserved for presentation in the appropriate analysis sections. See infra Sections III and IV.

A. Procedural History

On February 9, 2001, a jury convicted Hash of capital murder of Thelma B. Scroggins (“Scroggins”). Petitioner was sentenced to life imprisonment without the possibility of parole. At the time of Scroggins' murder in July 1996, Hash was fifteen years old. Hash was not charged with the murder until 2000, when he was nineteen years old. Prior to Hash's trial, Hash's co-defendant, Jason Kloby (“Kloby”), was tried and acquitted of Scroggins' murder.

Hash appealed his conviction in the Circuit Court of Culpeper County (“Culpeper Circuit Court”) to the Court of Appeals of Virginia, which affirmed the trial court's judgment in an unpublished opinion. Hash v. Commonwealth, No. 1290–01–4, 2002 WL 2004853 (Va.Ct.App. Sept. 3, 2002). The Supreme Court of Virginia denied Hash's petition for appeal and petition for rehearing.

Thereafter, Hash filed a petition for habeas corpus in the Culpeper Circuit Court. In that petition he alleged, inter alia, that the Prosecution and the Culpeper authorities had violated his rights by (1) failing to disclose records of correspondence or discussions with Carter about Carter's expectation of a sentence reduction in exchange for his testimony against Hash; (2) failing to disclose records of Carter's history as an informant; (3) using Carter's testimony when the Commonwealth knew or should have known that such testimony was perjured; (4) suggesting to the jury that Carter could not reduce his federal sentence by assisting prosecutors in a state court case; and (5) failing to disclose deals with Weakley regarding his testimony in Hash's case and his expectation of leniency. Hash also alleged that his trial counsel were constitutionally deficient for (1) failing to investigate evidence of other suspects in the case, (2) failing to discover letters written by Carter to a federal district court judge and others seeking assistance in obtaining a sentence reduction in his federal case, and (3) failing to present evidence that Hash was moved from Culpeper to the Albemarle–Charlottesville Regional Jail in order to expose Hash to Carter.

In its unpublished letter opinion, the Culpeper Circuit Court denied all of Hash's claims. First, the Culpeper Circuit Court held that although trial counsel's performance was deficient with regard to counsel's failure to investigate Carter, Hash had failed to prove prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (State Habeas Cir. Ct. Op. at 14, 16). Second, the Culpeper Circuit Court found that Petitioner had not proven prejudice with regard to his trial counsel's failure to presentevidence that Hash was relocated from Culpeper to the Albemarle–Charlottesville Regional Jail for the purpose of being exposed to known prison informant, Carter. ( Id. at 16). Third, with regard to Hash's trial counsel's failure to present an alternate theory of the crime, the Culpeper Circuit Court held that the investigation conducted by Hash's trial counsel was reasonable and their resulting trial strategy was reasonable. ( Id. at 18–19). Finally, the Culpeper Circuit Court held that there was insufficient proof of misconduct with regard to the Commonwealth's dealings with Carter. ( Id. at 18).²

Hash appealed the Culpeper Circuit Court's judgment to the Supreme Court of Virginia. The Supreme Court of Virginia's review was limited to the following assignments of error: ³

1. The circuit court erred in denying habeas relief on Claim A regarding “snitch” testimony from Paul Carter and ruling that, although counsel's performance was constitutionally deficient, there was no reasonable probability of a different result.

2. The court erred in failing to grant habeas relief specifically on Claim A(4), when the prosecution used the perjured testimony of Paul Carter.

Hash, 686 S.E.2d at 212. As to both assignments of error, the Supreme Court of Virginia denied Hash's petition and affirmed the Culpeper Circuit Court. Specifically, the Supreme Court of Virginia held that Hash had “not met the burden of showing a reasonable probability that, but for counsel's error in failing to investigate the federal file and use the letters to further impeach Carter, the trial would have had a different result.” Id. at 216. Regarding the second assignment of error, the Supreme Court of Virginia held that because Hash failed to present any evidence of a “pre-arranged agreement with the federal prosecutor to make a Rule 35(b) motion ... Hash has failed to establish that Carter's testimony was false” and, consequently, “there can be no way to establish that the prosecution knew of any alleged falsity.” Id. at 217.

On April 15, 2010, Hash timely filed a federal petition for writ of habeas corpus before this Court, pursuant to 28 U.S.C. § 2254. On July 2, 2010, Hash filed an amended petition. The claims set forth in Petitioner's amended petition are as follows:

Claim IA: Petitioner's trial counsel rendered constitutionally ineffective assistance of counsel when they failed to investigate and impeach the Commonwealth's key witness, Paul Carter, a jailhouse snitch;

Claim IB: Petitioner's trial counsel rendered constitutionally ineffective assistance of counsel when they failed to present evidence rebutting the Commonwealth's multi-perpetrator theory of the case and evidence incriminating an alternative suspect;

Claim IIA: The Commonwealth violated Petitioner's due process rights by concealing offers of favorable treatment to multiple prosecution witnesses; and

Claim IIB: The Commonwealth violated Petitioner's due process rights through the Culpeper Sheriff's Department's improper and offensive investigation.

(Dkt. No. 12–2). Subsequently, the Court granted Petitioner's unopposed motion for ballistics testing, (Dkt. No. 28), and granted Petitioner's oral motion for further discovery, (Dkt. No. 34). Both parties filed dispositive motions and the Court heard argument on January 24, 2012. Prior to oral argument, Petitioner advised the Court that Respondent had conceded Hash's ability to show cause and prejudice with regard to Claim IIA. (Dkt. No. 53).

B. Hash's Criminal Trial

At trial, Hash was represented by court appointed counsel, Richard Davis (“Davis”) and Michael T. Hemenway (“Hemenway”). Hash was arrested in May 2000, nearly four years after Scroggins' July 1996 murder. The first deputy assigned to investigate the case, Investigator David Carter (“Investigator Carter”), concluded that a single assailant had committed the crime, based on the crime scene evidence. (State Habeas H. Tr. at 250, 255). One of the suspects developed was Billy Scott (“Scott”), but the case went cold. ( Id. at 258). In November 1999, a new Sheriff was elected and he revisited the case. (Jenkins Aff. at ¶ 6). Investigator Scott Jenkins (“Investigator Jenkins”) and Investigator James Mack (“Investigator Mack”) were the new deputies assigned to the case. They were responsible for developing Hash as a suspect.

During trial the Prosecution presented evidence that Scroggins was found dead in her home, having suffered four gunshot wounds to the head. Three of the four shots were to the left side of Scroggins' head and one was to the back of her head. Investigator Jenkins testified that the only DNA found at the scene belonged to the victim and that although five fingerprints were recovered, no match was ever made. Further, no firearm was recovered at the crime scene that matched the .22 caliber bullets recovered from Scroggins' body.

The Prosecution had no physical evidence connecting Hash to the Scroggins murder. As a result, the Prosecution relied on the testimony of three key witnesses to prove their case: “an eyewitness,” Eric Weakley (“Weakley”); Hash's cousin, Alesia Shelton (“Shelton”); and Carter, a known prison informant, to whom Hash had allegedly confessed the crime.

Weakley testified that he, Kloby, and Hash attacked Scroggins and that Hash shot Scroggins “[t]wice in the side of the head ... [t]he left side.” (Trial Tr. at 595). Weakley also stated that Kloby shot her in approximately the same place and then fired the last shot in the back of her head. ( Id. at 596–97).

Shelton testified that on the night Scroggins was murdered she overheard Hash and...