Winston v. Kelly

Decision Date30 May 2008
Docket NumberCivil Action No. 7:07cv00364.
Citation624 F.Supp.2d 478
PartiesLeon Jermain WINSTON, Petitioner, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent.
CourtU.S. District Court — Western District of Virginia

Jennifer L. Givens, Matthew L. Engle, Charlottesville, VA, for Petitioner.

Steven Andrew Witmer, Office of the Attorney General, Richmond, VA, for Respondent.


SAMUEL G. WILSON, District Judge.

A jury in the Circuit Court for the City of Lynchburg, Virginia found petitioner, Leon Jermain Winston, guilty of three counts of capital murder and sentenced him to three death sentences. Having exhausted his state court remedies, Winston filed a habeas petition in this court pursuant to 28 U.S.C. § 2254 claiming actual innocence and raising more than 30 other claims. The court rejects his claim of actual innocence and all of his other claims except two interrelated claims: the claim that because he is mentally retarded, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), bars his execution, a claim he procedurally defaulted because he failed to raise it at trial, and the claim that his counsel was ineffective in relation to that claim, thereby excusing his procedural default. The court finds that an evidentiary hearing is appropriate to resolve those claims.

I. The Facts

In affirming Winston's conviction and sentence on direct appeal, the Supreme Court of Virginia summarized the facts as follows:

On the morning of Friday, April 19, 2002, Rhonda and Anthony Robinson ("Rhonda" and "Anthony") were shot and killed in their home at 410 Sussex Street in Lynchburg. When police arrived, they found that the rear door to the house had been forcibly opened. Anthony's body was at the foot of the stairs and five 9-millimeter shell casings were found around and under his body. Rhonda's body was found on the floor of the upstairs bedroom shared by her two daughters. Four 9-millimeter shell casings were found upstairs.

Autopsies were performed on both Rhonda and Anthony. Toxicology reports found no indication of alcohol, opiates, or cocaine in either. The medical examiner concluded that all wounds were inflicted upon both victims while they were alive. The medical examiner also concluded that Rhonda was pregnant at the time she was murdered.

Anthony died from blood loss caused by eight gunshot wounds to his head, chest, abdomen, and upper and lower extremities.1 In numbering the bullet wound tracks, the medical examiner did not indicate the sequence in which Anthony was shot. However, the medical examiner established that a 9-millimeter semi-automatic handgun caused tracks 1 through 7 and a .38 caliber revolver caused track 8.

The bullet in track 1 entered Anthony's head above and behind his left ear, passed through his skull causing a "large amount of destruction" before exiting through his right eye. The bullet in track 2 entered Anthony's right jaw and exited out of his mouth. The bullet in track 3 grazed the surface of Anthony's left cheek before it entered his chest, damaged his left lung and heart, and stopped in his abdomen. The bullet in track 4 passed front-to-back through Anthony's right shoulder. The bullet in track 5 passed from right to left through the subcutaneous tissue of Anthony's abdomen. The bullet in track 6 entered Anthony's left upper back, and then passed through his ribs, left lung, heart, liver, and stomach. The bullet in track 7 entered Anthony's right thigh and then passed through it. The .38 caliber bullet in track 8 entered the right side of Anthony's groin at the base of his penis, and passed through the left scrotal sac before lodging in his left thigh.

Rhonda's death was caused by blood loss due to eight gunshot wounds. The medical examiner identified three wound tracks associated with these wounds. The bullet that caused the first wound track entered at the top of her head and passed through her forehead. The bullet that caused the second wound track passed through Rhonda's chin into her neck and chest, where it hit major blood vessels before exiting through her back. The bullet that caused the third wound track passed through Rhonda's neck.

Evidence at trial revealed that on the morning of April 19, 2002, then eight year-old Niesha M. Whitehead ("Niesha") was awakened by Rhonda, her mother, calling out that "someone is in the house." Niesha saw two black men outside the second floor bedroom she shared with her sister, Tiesha, then five years old. Niesha testified that she saw her stepfather, Anthony, go downstairs with one of the two men. This man was dressed in black clothing and wore gloves. Niesha called him "Mr. No Name." She testified that "Mr. No Name" had a tattoo that looked like "a big dog." Significantly, Winston concedes that he was present on this evening, but asserts on brief before us that he did not shoot anyone. As between Winston and the other man who was an intruder in the home, Kevin Brown ("Brown"), Winston is the person with a tattoo of a dog on his arm. Niesha testified that after Anthony went downstairs with "Mr. No Name," she heard shots.

Brown, who Niesha called "Mr. No Name's Friend," stayed upstairs with Rhonda until "Mr. No Name" came back upstairs. "Mr. No Name" chased Rhonda into the girls' bedroom and shot Rhonda in front of the girls. Niesha led her sister to a closet where the two girls hid. Later, Niesha left the closet and discovered the bodies of her mother and stepfather.

A cab driver testified that he picked up two black males, one of whom he identified as Brown, in the early morning hours of April 19, 2002. He drove the men to several homes where the two men would leave the cab and walk around the house checking the windows, but not entering the houses. He remembered that one of the houses was on Sussex Street. The Robinson home was on Sussex Street.

Michelle Lipford, who had purchased drugs from Winston and Brown in the past and had been sexually intimate with Winston, testified that at about 5:00 a.m. on April 19, 2002, she drove Winston and Brown to the Robinsons' home on Sussex Street. She testified that she parked a block away from the Robinson home and Winston and Brown left the car for approximately 5 minutes and then returned. They went to her home on Pierce Street. Winston and Brown asked her to drive them back to Sussex Street. She complied and parked a block away from the Robinson home. Winston and Brown got out of the car. After about 15 minutes, Lipford heard gunshots and drove away.

Tranika Turner [ ], Winston's girl-friend, received a call from Winston at about 6:00 a.m. on the morning of April 19, 2002 asking her to pick him up at a carwash, a short distance from Sussex Street. She did so.

The evidence revealed that Carrie Wirges, a neighbor of the Robinsons, was awakened by gunshots on the morning of April 19, 2002. She described hearing three shots and then five shots.

Nathan Rorls ("Rorls"), a longtime friend of Winston's, testified that Winston telephoned him and stated that "he slumped two people down here," meaning that he "murdered somebody; killed somebody." When Rorls saw Winston the next day, Winston stated that he "killed two people and robbed them and stuff." Winston produced a handgun from under his shirt. Rorls described it as "a black gun like an automatic [, it] was like a Glock or a nine." Winston also displayed cash and cocaine that he stated he took from the Robinsons. He told Rorls that he and Brown took $2000 and two ounces of cocaine.

Rorls recited what Winston told him. According to Winston, Brown took Anthony downstairs and shot him first in the stomach. Winston then shot Anthony when he came "running up the steps talking about they robbing us." Rorls testified that,

So [Winston] said he shot him like up in the face or somewhere in the upper body coming up the stairs. And he told me, he said, he don't want to leave no witnesses, so he turned around and he shot that bitch.

Winston told Rorls that he committed these crimes because he had been robbed several days earlier and "he needed to make his money back up, he didn't get paid." Rorls also stated that Winston told him that Rhonda was pregnant.

Winston was arrested at his girlfriend, [Tranika] Turner's, home on April 25, 2002. [Tranika] Turner gave police a set of keys that Winston left in her house. The keys fit locks to doors at two nearby apartments. At one of the apartments, occupied by Robin Wilson ("Wilson"), the police recovered a 9-millimeter off-brand handgun manufactured by a company located in Tennessee and made to resemble a Glock. Winston had left the handgun with Wilson to "hold" for him, and had failed to retrieve it before he was arrested. Winston had called Wilson from jail after he was arrested and requested Wilson to continue to "hold" it.

Winston's handgun seized by police at Wilson's apartment had one unspent round in the clip magazine. The cartridge bore the identical stamping as the casings recovered at the Robinson murder scene. A forensic scientist testified at trial that five bullets recovered from the Robinsons' home and two bullets removed from Anthony's body were fired from Winston's 9-millimeter handgun recovered from Wilson's apartment. Nine cartridge casings recovered at the crime scene had been ejected from Winston's 9-millimeter handgun. Another forensic scientist testified that biological material recovered from the 9-millimeter handgun matched Winston's DNA profile and was inconsistent with Brown or either of the Robinsons. The probability of a random selection yielding this result was greater than one in six billion.

Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21, 26-28 (2004), cert. denied, 546 U.S. 850, 126 S.Ct. 107, 163...

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6 cases
  • Winston v. Kelly
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 27, 2010
    ...when deciding whether the same counsel was ineffective in failing to investigate and present mitigating evidence. See Winston v. Kelly, 624 F.Supp.2d 478, 512 (W.D.Va.2008). While the Supreme Court has recognized that "the duty to investigate does not force defense lawyers to scour the glob......
  • Janosky v. St. Amand
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 3, 2010
    ...Cir.2008) (applying the AEDPA standard when analyzing an ineffective assistance claim to establish cause), and Winston v. Kelly, 624 F.Supp.2d 478, 497 n. 6 (W.D.Va.2008) (noting split of authority and concluding the AEDPA standard applies), with Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th......
  • Leon Jermaine Winston v. Kelly
    • United States
    • U.S. District Court — Western District of Virginia
    • May 16, 2011
    ...and the claim that his counsel was ineffective in relation to that claim, thereby excusing his procedural default. Winston v. Kelly, 624 F.Supp.2d 478 (W.D.Va.2008). Although the Supreme Court of Virginia earlier rejected Winston's ineffective assistance claim on the merits because he had f......
  • Hawkins v. Davis
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    • U.S. District Court — Eastern District of Virginia
    • June 10, 2015
    ...barred unless petitioner can show cause3 and prejudice4 for the default or a fundamental miscarriage ofjustice5. Winston v. Kelly, 624 F. Supp. 2d 478, 491-92 (W.D. Va. 2008) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The burden of pleading and proving that a claim is procedura......
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