Hazel v. U.S., CIV.A.97-633-AM.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Ellis
• Citation: 303 F.Supp.2d 753
• Parties: Bobby E. HAZEL Petitioner, v. UNITED STATES, Respondent.
• Docket Number: No. CIV.A.97-633-AM.,No. CRIM.A.93-62-A.,CIV.A.97-633-AM.,CRIM.A.93-62-A.
• Decision Date: 11 February 2004

303 F.Supp.2d 753

Bobby E. HAZEL Petitioner, v. UNITED STATES, Respondent.

No. CIV.A.97-633-AM.

No. CRIM.A.93-62-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 11, 2004.

COPYRIGHT MATERIAL OMITTED

United States, Pro se.

MEMORANDUM OPINION

ELLIS, District Judge.

This pro se successive motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 presents, inter alia, the following questions:

(i) whether a claim of actual innocence may be raised by a petitioner pursuant to § 2255 as a freestanding claim, or must this claim be accompanied by an independent constitutional claim;

(ii) whether a district court reviewing a certified claim in a successive petition may also review claims that were not presented for certification; and

(iii) whether a petitioner may amend his successive § 2255 petition to include additional claims Where it appears that such amendments may be futile.

Oral argument in this matter is dispensed with because the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process.¹

I.

On February 11, 1993, a grand jury returned a three-count indictment against defendant Bobby Hazel and co-defendant Homer Richards. Count one charged defendant and Richards with the murder of Gregory Ford, in violation of 18 U.S.C. §§ 1111 and 2, on June 16, 1992 at the Lorton Correctional Facility in Occoquan, Virginia, where Hazel, Richards, and Ford were inmates. Counts two and three charged Hazel and Richards respectively, with possession of a dangerous weapon by a prisoner, in this case a shank, in violation of 18 U.S.C. § 13, assimilating Va.Code § 53.1-203(4).

Defendant and Richards were tried together and, after a two-day trial in May 1993, a jury found defendant guilty of first degree murder and possession of a dangerous weapon. The jury also convicted Richards of possession of a dangerous weapon. In addition, Richards was found guilty of second degree murder, a lesser-included offense of the first degree murder charge.

At trial, the government presented testimony from thirteen witnesses, including key testimony from four inmates present at the time of the murder — Travis Cameron, Marshall Hollingsworth, David Basknight, and Thomas Dinsmore — all of whom implicated defendant and Richards in the murder. Defendant and Richards offered the testimony of twelve witnesses, including three inmates who offered alibi evidence and one inmate who testified that Cameron had told him that he, Cameron, intended to lie at trial regarding defendant's and Richards' guilt. On July 16, 1993, after denial of defendant's motion for judgment of acquittal or, in the alternative, a new trial, defendant was sentenced to life imprisonment. On July 30, 1993, Richards was sentenced to 235 months imprisonment. Thereafter, on July 23, 1993, defendant filed a timely Notice of Appeal. On November 26, 1993 and March 18, 1994, defendant filed a second and third motion for a new trial based on newly discovered evidence. Both motions were denied on the ground that the newly discovered evidence provided only additional impeachment evidence and would not likely have resulted in an acquittal had it been presented at trial. See United States v. Hazel, Criminal Action No. 93-62-A (E.D.Va. December 17, 1993) (Order); United States v. Hazel, Criminal Action No. 93-62-A (E.D.Va. March 21, 1994) (Order). Defendant also filed timely Notices of Appeal from both denials. These appeals were consolidated with Richards' appeals and the Fourth Circuit ruled on August 16, 1994 that the newly discovered evidence "is merely additional impeachment of the testimony of Basknight, Cameron, and Hollingsworth," and thus did not compel a new trial. See United States v. Hazel, 33 F.3d 53, 1994 WL 440407 (4th Cir.1994) (per curiam), cert. denied, 514 U.S. 1015, 115 S.Ct. 1356, 131 L.Ed.2d 214 (1995).

On April 18, 1997, defendant filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255 on the ground that he received ineffective assistance of counsel. Specifically, defendant argued that his trial counsel provided ineffective assistance because counsel (i) failed to investigate adequately defendant's case, (ii) failed to call crucial witnesses, as a consequence of the inadequate investigation, (iii) failed to call witnesses to impeach important government witnesses and (iv) failed to impeach the government's witnesses by cross-examination. Defendant included affidavits from nine witnesses who did not testify at trial but said they would have offered testimony corroborating defendant's alibi or impeaching the government's witnesses had they been asked to testify. On July 14, 1997, defendant's § 2255 motion was denied on the grounds that defendant failed to show either (1) deficient performance or (2) prejudice, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hazel v. United States, Criminal No. 93-62-A (E.D.Va. July 14, 1997) (Memorandum Opinion). The Fourth Circuit affirmed the district court's denial of defendant's § 2255 motion on appeal on December 11, 1997. See In re Hazel, Criminal Action No. 93-62-A, Civil Action No. 97-633-AM (4th Cir. December 11, 1997) (Memorandum Opinion). On July 16, 1998 and September 4, 1998, the Fourth Circuit denied defendant's motions for authorization to file a successive § 2255 motion pursuant to 28 U.S.C. § 2244. See In re Hazel, Criminal Action No. 93-62-A, Civil Action No. 97-633-AM (4th Cir. July 16, 1998) (Order); In re Hazel, Criminal Action No. 93-62-A, Civil Action No. 97-633-AM (4th Cir. September 4, 1998) (Order).

On March 23, 1999, defendant filed a motion to reopen judgment under "extraordinary circumstances" which was denied on March 25, 1999. See United States v. Hazel, Criminal Action No. 93-62-A (E.D.Va. March 25, 1999) (Order) (finding frivolous defendant's contention that the government engaged in ex parte communications with his trial counsel). On May 9, 2000, defendant filed a second motion to reopen. This time the court construed defendant's motion as a second petition under § 2255 and denied the petition on the ground that defendant had failed to obtain the required certification to file a successive petition from the Fourth Circuit. See United States v. Hazel, Criminal Action No. 93-62-A (E.D.Va. May 16, 2000) (Order); see also 28 U.S.C. § 2255 ("A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals. ..."). On November 29, 2000, the Fourth Circuit again denied defendant's motion for authorization to file a successive § 2255 petition pursuant to 28 U.S.C. § 2244. See In re Hazel, Criminal Action No. 93-62-A, Civil Action No. 97-633-AM (4th Cir. November 29, 2000) (Order)

On January 17, 2008, defendant filed yet another motion at the Fourth Circuit pursuant to § 2244 seeking authorization to submit a successive § 2255 petition, this time based on newly discovered evidence, namely the testimony of, Norman Jenkins, a Lorton inmate, who allegedly witnessed Ford's murder. In support of this motion, defendant submitted Jenkins' affidavit in which Jenkins stated that he witnessed an argument between Ford, Basknight, Cameron, and Jeffrey Wells, another inmate, on June 16, 1992, that ultimately resulted in Cameron's murder of Ford. Jenkins stated that, he remained silent regarding his knowledge of the murder for over a decade until he met defendant while the two were inmates at a federal prison in Florence,, Colorado because he had been advised to do so by a correctional officer, Corporal Marie Williamson, with whom Jenkins was having a romantic relationship at the time of the murder. On February 20, 2003, the Fourth Circuit granted defendant's motion and certified his successive petition.

As a consequence, defendant filed here a motion to vacate, set aside, or correct his sentence pursuant to § 2255 on the grounds that Jealdrts' testimony, if offered at trial, would have resulted in defendant's acquittal. In his reply to the government's opposition to the motion, defendant also argues that relief should be granted because the government failed to disclose favorable evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, thus denying him a fair trial. On November 24, 2003, defendant brought a motion for leave to amend his § 2255 petition to include an additional claim of ineffective assistance of counsel. Specifically, it appears that defendant alleges that trial counsel (i) failed to object to the government's reliance on theories during trial that were broader than what was charged in the indictment and (ii) failed to object to false testimony to the grand jury. Furthermore, in January 2004, defendant brought a motion for discovery and a motion for an evidentiary hearing. All of these motions are addressed.

II.

The passage of the Anti-terrorism and Effective Death Penalty Act ("AEDPA")² in 1996 dramatically changed the landscape of § 2255 motions. Among the most important of the changes were the significant restrictions placed on second or successive petitions brought by federal and state prisoners. In particular, before a federal prisoner may bring a successive petition in the district court in which he was sentenced, he must obtain certification "by a panel of the appropriate court of appeals...." 28 U.S.C. § 2255; see also Pratt v. United States, 129 F.3d 54, 56-57 (1st Cir.1997); Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 1275 (4th ed.2001).³ The AEDPA directs courts of appeals to certify a successive petition only if the petition contain[s] —

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the...