Kersey v. Davis

• Decision Date: 25 February 2016
• Docket Number: 1:15cv133 (TSE/MSN)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mark Kersey, Petitioner, v. Keith Davis, Respondent.

Mark Kersey, Petitioner, v. Keith Davis, Respondent.

1:15cv133 (TSE/MSN)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

February 25, 2016

MEMORANDUM OPINION

Mark Kersey, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in the Circuit Court for the City of Norfolk of aggravated malicious wounding and first degree murder. Petitioner has paid the applicable filing fee. On May 5, 2015, respondent filed a Rule 5 Answer and a Motion to Dismiss with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and after receiving an extension of time he filed a reply to the Motion to Dismiss on June 16, 2015. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed, with prejudice.

I. Background

On August 8, 2011, a City of Norfolk jury convicted petitioner of: (I) the aggravated malicious wounding of Brandon Franklin and (ii) the first degree murder of Lemar Woodward. As a result, petitioner received a total sentence of seventy (7) years incarceration. Case No. CR09003300; Resp. Ex. A. The facts giving rise to petitioner's convictions were described by the Court of Appeals of Virginia as follow:

On July 21, 2009, Taneisha Woodard (Taneisha) had an argument with her child and the child left the house. Taneisha also left the house. Taneisha is appellant's sister, and she was married to Lemar Woodard (Woodard), the victim of the murder. Derrick Bunch, Woodard's brother, testified he was at Woodard's house with Woodard and Brandon Franklin, the victim of the aggravated malicious wounding, when appellant's girlfriend, Taishia Roseman (Roseman) and additional females arrived during the late afternoon asking about Taneisha's child. Bunch testified Roseman was angry and said that Woodard was not a good parent because he permitted the child to run away. Burch testified Roseman said to Woodard, 'You're a bitch. We'll be back. You ain't gonna do nothing next time we come back.' Roseman and the other females left.

Bunch testified he, Woodard, and Franklin went to the basement and were sitting on a sofa when appellant and another man entered the basement at approximately 6:30 p.m. Bunch testified appellant told Woodard that he needed to talk to him and Woodard replied, 'It takes two of you all to talk to me?" Bunch testified as Woodard started to stand up, appellant punched Woodard several times. Bunch testified Franklin stood up and grabbed appellant from the back. Bunch testified he tried to break up the fight and at a certain point, the fighting stopped. [After a verbal argument, however] Bunch testified appellant grabbed Woodard and they fell onto the sofa and he tried to break up the fight. Bunch testified Woodard told him to pick up a television and drop it on appellant's head, but Bunch refused. Bunch testified appellant and Woodard stopped fighting and the men stood near each other and the women were behind them. Bunch testified appellant was facing Woodard and Franklin when he saw appellant holding a pocket knife by his side and he asked appellant to put the knife away. Bunch testified appellant 'tucked away the knife and he did not see it.' Bunch testified he, Woodard and Franklin were unarmed. Bunch testified appellant turned, stabbed Woodard, turned toward Franklin, and stabbed Franklin. Bunch testified appellant stated, 'Bitch. You all going to die. Somebody going to die tonight penitentiary style.' ...

Kersey v. Commonwealth, R. No. 2567-10-1 (Va. Ct. App. Sept. 9, 2011); Resp. Ex. C.

Petitioner appealed his conviction and sentence to the Court of Appeals of Virginia, asserting that:

1. The trial court erred in refusing to instruct the jury onthe right to arm oneself in self-defense.

2. The evidence was insufficient to show that there was a permanent and significant physical impairment to support the conviction of malicious wounding.

3. His right to a speedy trial as guaranteed by Va. Code §19.2-243 was violated.

The Virginia Court of Appeals denied the petition for appeal in part, but granted petitioner an appeal on the claim of the sufficiency of the evidence to sustain the malicious wounding conviction. Resp. Ex. B-C. After briefing and oral argument, the Court of Appeals affirmed petitioner's conviction and sentence. Kersey v. Commonwealth, R. No. 2567-10-1 (Va. Ct. App. July 10, 2012); Resp. Ex. D. On April 4, 2013, the Supreme Court of Virginia refused Kersey's petition for further review. Kersey v. Commonwealth, R. No. 121560 (Va. Apr. 4, 2013).

On November 4, 2013, petitioner filed a petition for a writ of habeas corpus in the City of Norfolk trial court, which including a supplement to the petition raised the claims that:

A. Counsel obtained petitioner's signature on a continuance order through intentional deception.

B. Counsel failed to subject the prosecution to adversarial testing.

C. Counsel erroneously invoked the defense of self-defense.

D. Counsel added unsupported facts to the record.

E. Counsel failed to request an jury instruction on abolition of parole.

F. Appellate counsel adopted trial counsel's arguments without thoroughly reviewing the record.

G. Appellate counsel failed to argue petitioner's claims as constitutional violations.

H. His Sixth Amendment right to a speedy trial was violated.

I. Counsel was ineffective for failing to strike juror Newton and to ensure that the jury was not biased.

The Virginia Court of Appeals by a Final Order dated April 9, 2014, denied habeas relief and dismissed the petition. In this respect, the Court of Appeals determined claim H to be procedurally defaulted pursuant to Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974) because on appeal petitioner raised the alleged speedy trial violation only as a state statutory violation rather than a breach of the Sixth Amendment. Resp. Ex. I at 3. The Virginia Court of Appeals found the remaining claims asserting ineffective assistance of trial and appellate counsel to be without merit. Kersey v. Warden, Sussex I State Prison, R. No. CL13-8534; Resp. Ex. I. On November 17, 2014, the Supreme Court of Virginia refused a petition for appeal of that judgment. Kersey v. Davis, R. No. 141040 (Va. Nov. 17, 2014); Resp. Ex. J.

Petitioner then turned to the federal forum and timely filed here the instant application for habeas corpus relief pursuant to 28 U.S.C. § 2254. The claims asserted here are similar, but not identical to those raised on direct appeal in the state court and in the state habeas proceeding. The claims asserted here are as follow:

1. Petitioner's right to a speedy trial as guaranteed by the Sixth Amendment and the Virginia Constitution was violated.

2. Petitioner's rights to due process and equal protection were violated when the trial court refused to instruct the jury on self-defense.

3. Petitioner's rights to due process and equal protection were violated when he was convicted of aggravated malicious wounding in the absence of sufficient evidence of the victim's permanent and significant impairment.

4. Trial counsel was ineffective for obtaining petitioner's signature on a continuance order through intentional deception.

5. Trial counsel was ineffective for failing to subject the prosecution to adversarial testing by:

a. failing to impeach Derrick Bunch;

b. failing to obtain an expert to challenge the pathologist's findings;

c. allowing the pathologist to testify that Woodard died of a punctured lung;

d. failing to present rebuttal argument;

e. conceding the chain of custody as to the body;

f. failing to obtain a private investigator; and

g. all of the foregoing, cumulatively.

6. Trial counsel was ineffective for erroneously invoking the defense of self-defense.

7. Trial counsel was ineffective for adding unsupported facts to the record.

8. Trial counsel was ineffective for failing to request a jury instruction on abolition of parole.

9. Appellate counsel was ineffective for adopting trial counsel's arguments without thoroughly reviewing the record.

10. Appellate counsel was ineffective for failing to argue petitioner's claims as constitutional violations.

11. Trial counsel was ineffective for failing to strike juror Newton and to ensure that the jury was not biased.

As noted above, respondent has filed a Motion to Dismiss the petition with a supporting brief and exhibits, and petitioner has filed a reply. Dkt. No. 10-12, 20. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed, with prejudice.

II. Exhaustion and Procedural Bar

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. See 28 U.S.C. § 2254(b); Granberry v Greer, 481 U.S. 129 (1987); Rose v. Lundy, 455 U.S. 509 (1982); Preiser v. Rodriguez, 411 U.S. 475 (1973). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia must have presented to the Supreme Court of Virginia the same factual and legal claims raised in his § 2254 application here. See, e.g., Duncan v. Henry, 513 U.S. 364 (1995); Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002).

However, "[a] claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)...