Randall v. Clarke
Filing
27
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/4/2015. Copy of Memorandum Opinion was distributed as directed. (sbea, )
1
u
IN THE
UNITED
FOR THE
STATES DISTRICT COURT
EASTERN DISTRICT
AUG - 6 2015
OF VIRGINIA
Richmond Division
CURK, U.S. niSTRICT COURT
MORRIS LEE RANDALL, JR.,
RICHf.iOND. VA
Petitioner,
V.
Civil Action No.
HAROLD W.
3:14CV562
CLARKE,
Respondent.
MEMORANDUM OPINION
Morris
Lee
proceeding pro
§ 2254
se,
{"§ 2254
convictions
in the
("Circuit Court").
Randall,
brings
Jr.,
this
Petition,"
Circuit
a
Virginia
state
petition pursuant
ECF
Court of
No.
the
1)
to
prisoner
28
U.S.C.
challenging
County of
his
King William
Respondent has moved to dismiss,
inter alia,
on the ground that the one-year statute of limitations governing
federal habeas petitions bars the § 2254
responded.
The matter is ripe for disposition.
that follow,
and the §
On
degree
Randall has
For the reasons
the Court will grant Respondent's Motion to Dismiss
2254 Petition will be denied.
I.
A.
Petition.
PROCEDURAL HISTORY
State Court Proceedings
September
felony
1,
murder,
2006,
a
jury
attempted
robbery,
use of a
offense,
and possession of a
convicted
robbery,
Randall
of
first-
conspiracy
to
commit
felony,
second
firearm in the commission of a
firearm by a
person convicted of a
violent
felony,
at
(Va.
1-2
the
Commonwealth v.
Cir.
Circuit
Ct.
Court
incarceration.
Sept.
at
refused
Commonwealth,
No.
Prior to
22,
2007,
071329,
2 007,
Johnson,
Randall
pending
the
the
at 1
(Va.
No.
2008,
resolution
of
for
Jan.
Randall v.
(Va.
moved
his
Court
appeal.
8,
Randall
v.
2008) .
on February
writ of habeas corpus
Cir.
to
direct
dismissed
Johnson,
No.
Ct.
filed
withdraw
appeal.
the
the
On
Feb.
(Va.
22,
petition
August
petition
CL07-22
2009,
Randall
filed his
Cir.
22,
without
Ct.
Feb.
Jan.
denied
8,
the
Cir.
2009) .
petition.
Ct.
filed
denied the petition,
Respondent's
second petition for
in the Circuit Court.
of Habeas Corpus at 1, Randall v. Johnson,
the
of
2007) .
writ of habeas corpus
(Va.
years
the Supreme Court of
his direct appeal,
CL07-22
subsequently
On January 8,
Ct.
2006,
Petition for Writ of Habeas Corpus at 1,
Circuit
prejudice.
22,
forty-seven
Randall filed a petition for a
v.
2007).
to
petition
conclusion of
in the Circuit Court.
Randall
CR06-20(00)-(04) ,
On September 27,
Randall
On January 8,
Randall's
the
2006).
No.
2-3.
Randall appealed.
Virginia
27,
sentenced
Id.
Randall,
On
September
Randall
Sept.
2,
Randall
Motion
to
v.
2,
No.
2009,
Johnson,
2009.)
Petition for Writ
CL09-01
the
No.
After
the
(Va.
Circuit
CL09-01,
Circuit
Cir.
Court
at
28
Court
filed his untimely reply brief to
Dismiss.
The
Circuit
Court
noted
that
Randall's
reply was
tardy,
but
nevertheless,
and again denied Randall's habeas petition.
No.
CL09-01,
an appeal.
01
(Va.
at 1
(Va.
Cir.
Ct.
Sept.
Notice of Appeal at 1,
Cir.
Ct.
filed Sept.
30,
23,
Randall v.
2009).
Randall v.
2009),
reviewed it,
Johnson,
Randall noted
Johnson,
No.
CL09-
but failed to pursue his
appeal in the Supreme Court of Virginia.
B.
Federal Habeas Petition
On July 31,
Court.
{§
2014, Randall filed his § 2254 Petition in this
2254
Pet.
15.)^
In
the
§
2254
Petition,
Randall
argues entitlement to relief upon the following grounds:
Claim One:
Counsel rendered ineffective assistance by
"fail[ing] to investigate Floyd Green, Eric
Berkley,
and Sydney Travors
to determine if
matters
of
be
(§ 2254
Pet.
defense
could
developed."
6.)
Counsel rendered ineffective assistance by
"fail[ing] to locate and interview Charles
Claim Two:
Surles
to
determine
if
could be developed,"
matters
of
defense
(Id. at 7.)
Counsel rendered ineffective assistance by
"fail[ing]
to investigate and obtain the
telephone records of alibi witness Hattie
Claim Three:
Mae Williams."
(Id.
at
9.)
^ The Court deems the petition filed on the date Randall
swears
he
Houston V.
placed
Lack,
the
petition
487 U.S.
266,
in
276
the
(1988).
prison
mailing
system.
Claim Four:
Randall
"based
is
on
actually
trial
innocent,
counsel's
adequate investigation."
II.
A.
and was
failure
to
convicted
conduct
an
(Id. at 11.)
ANALYSIS
Statute of Limitations
Respondent contends that the federal statute of limitations
bars
Randall's
claims.^
Section
Effective Death Penalty Act
101
of
{"AEDPA")
the
amended
Antiterrorism
28
U.S.C.
§
and
2244
to establish a one-year period of limitation for the filing of a
petition
for
pursuant
to
U.S.C.
1.
a
writ
the
§ 2244(d)
of
habeas
judgment
of
a
corpus
state
by
a
court.
person
in
custody
Specifically,
28
now reads:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a
State court.
The limitation period shall run
from
the
latest of--
(A)
the date on which the judgment became
final
by
the
conclusion
of
direct
review or the expiration of the time
for seeking such review;
(B)
the date on which the impediment to
filing an application created by State
action
or
in
laws
violation of
of
the
the
United
Constitution
States
is
removed, if the applicant was prevented
from filing by such State action;
(C)
the
date
on
which
right asserted was
the
constitutional
initially recognized
^ Randall freely admits that he
"failed to exhaust
claim[s]" in state court but argues that his actual
excuses
his
procedural
default
(§
2254
Pet.
7)
untimeliness of his petition.
(Id. at 14.)
[his]
innocence
and
the
by the Supreme Court, if the right has
been newly recognized by the Supreme
Court and made retroactively applicable
to cases on collateral review;
(D)
2.
or
the date on which the factual predicate
of the claim or claims presented could
have
been
discovered
through
the
exercise of due diligence.
The
time
during
which
a
properly
filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward
any
period
of
limitation
under
this
subsection.
28 U.S.C.
§ 2244(d).
B.
Conanencement of
U.S.C.
Randall's
when
the
§
the Statute of Limitations Under 28
2244(d)(1}(A)
judgment became
time
to
file
a
expired.
Hill
v.
Braxton,
("[T]he
one-year
final
on Monday,
petition
277
limitation
for
F.3d
period
a
701,
writ
704
begins
April
of
7,
2008,
certiorari
(4th Cir.
running
when
2002)
direct
review of the state conviction is completed or when the time for
seeking direct
review has
§ 2244 (d)(1)(A)));
certiorari
should
^
be
expired
Sup.
filed
Ct.
within
.
.
R.
.
(citing
13(1)
ninety
28
U.S.C.
(petition
days
of
for
entry
of
judgment by state court of last resort or of the order denying
discretionary review).
until
January
habeas petition.
8,
2009,
The limitation period ran for 275 days,
when
See 28 U.S.C.
Randall
filed
§ 2244(d)(2).
his
second
state
The
2009,
limitation period
when
the
petition.^
Circuit
Court
Randall
the
and
additional
half
Petition
on
plausible
years
31,
for
appeal
before
September
Randall's
of
Randall
belated
commencement
filed
not
of
23,
habeas
decision.
for more
does
§ 2244(d)(1)(B)-(D)
second
that
Randall
2014.
a
period under 28 U.S.C.
Instead,
no
until
limitation period then ran
July
basis
tolled
dismissed
filed
Accordingly,
a
remained
than four
his
§ 2254
suggest
the
any
limitation
or equitable tolling.
he argues that his actual innocence excuses his failure
to file in a timely manner.
III.
A.
Supreme
basis
for
limitations.
(2013)
a
INNOCENCE
Legal Standard
The
ACTUAL
Court
overcoming
See
through
recognized
the
McQuiggin
(explaining that
gateway
has
expiration
v.
of
of
Perkins,
133
"actual innocence,
which
a
petitioner
impediment is a procedural bar
statute
actual
limitations").
.
.
"Claims
. or
of
the
S.
Ct.
,
actual
pass
as
statute
1924,
if proved,
may
,
innocence
a
of
1928
serves as
whether
the
. expiration of the
innocence,
whether
presented as freestanding ones or merely as gateways to excuse a
^ The limitations period may have started to run again on
September 3, 2009, the day after the Circuit Court initially
denied Randall's
petition.
Nevertheless,
because Randall's
§ 2254 Petition is more than five years late, the Court assumes
without deciding that the limitations period began to run again
on September 24, 2009.
procedural default,
Greene,
155
Here,
the
lenient
396,
Court
Court
to
to
404
reviews
standard
subscribing
the
F.3d
should not be granted casually."
for
{4th Cir.
Randall's
gateway
Randall's
consider
the
(citations
arguments
actual
actual
1998)
of
his
omitted).
under
innocence
innocence
merits
Wilson v.
the
claims,
claims
because
would
otherwise
more
permit
time-barred
habeas petition.
A
gateway
claim
requires
a
petitioner
to
present
"new
reliable evidence—whether i t be exculpatory scientific evidence,
trustworthy eyewitness
accounts,
that was not presented at trial."
324
(1995).
the
vast
majority
producing new,
Court
Schlup v.
Delo,
513 U.S.
298,
"Because such evidence is obviously unavailable in
rarely successful."
the
or critical physical evidence-
cases,
Id.
claims
If a
of
actual
innocence
are
petitioner meets the burden of
truly reliable evidence of his or her innocence,
then
incriminating
of
considers
and
"'all
exculpatory,
the
evidence,'
without
regard
old
to
and
new,
whether
it
would necessarily be admitted under 'rules of admissibility that
would
govern at
trial'"
and
determines
whether
the
has met the standard for a gateway claim of innocence.
538
(2006)
(quoting Schlup,
petitioner
House v.
Bell,
547 U.S. 518,
513 U.S. at 327-
28) ,
The Court must determine "whether ' i t is more likely than
not that no reasonable juror would have found petitioner guilty
beyond a
reasonable doubt.'"
Sharpe v.
Bell,
593
F.3d 372,
377
{4th
Cir.
2010)
(quoting
Schlup,
513
U.S.
at
327-28) .
"The
Court need not proceed to this second step of the inquiry unless
the petitioner first supports his or her claim with evidence of
the requisite quality."
5476755,
at
*5
Bowersox,
119
Beshears,
56
"actual
{E.D.
F.3d
P.
innocence"
See
Dec.
600,
omitted)
of
30,
610
No.
(citing
Cir.
Md.
(D.
1997);
and
Thompson,
(internal
justice
523
quotation
exception
is
2010 WL
Weeks
1999)).
innocence
v.
3:09cv659,
2010)
(8th
factual
Ca1deron
miscarriage
Johnson,
1352-53
2d
means
(citations
("(T]he
Va.
1342,
Supp.
insufficiency."
(1998)
Hill v.
v.
Feaster
v.
Moreover,
not
just
U.S.
legal
538,
marks
559
omitted)
concerned
with
actual as compared to legal innocence.")
B.
Compelling Evidence Exists Of Randall's Guilt
While the evidence against Randall introduced at trial was
not
overwhelming,
support
trial
the
the
jury's
lasted
witnesses
compelling
verdict.
several
days,
who placed Randall
shooting,
and
involved
evidence
The
of
his
Court
involved
in West
notes
the
Point
extensive
guilt
existed
that
Randall's
testimony
around
to
of
the
many
time
cross-examination
of
and
attempts to discredit the Commonwealth's witnesses by Randall's
trial counsel.
only witness
Randall
Randall's
as
The jury heard testimony from Forrest Scott,
to
the
the
shooting of
shooter.
co-conspirators
Craig Robinson,
Darryl
in
the
8
Moody
plan
to
and
rob
who
the
identified
Jerrard
Crump,
Forrest
Scott,
testified
that
robbing Scott was Randall's
idea,
had planned the robbery during the course of
the
three men
the day,
and that
they picked Randall up in Richmond and brought him to West Point
where Randall remained until Moody and Randall approached Scott
to
rob
and
him.
Moody's
saw Randall
Rosemary Davis,
sister-in-law,
house mate
Trevonda
King,
of
Forrest
testified
Scott's,
that
they
in West Point with Moody and Crump around the time
of the shooting.
at
a
The Court now turns to the evidence presented
trial.
C.
Suimnary Of Evidence Of Randall's Guilt
On the evening of October 14,
cousin were sitting in a
2005,
Forrest Scott and his
car smoking marijuana in a
vacant lot
near Scott's house at 1420 Kirby Street in West Point,
and
Scott
Street.
saw
two
(Aug.
30,
Scott testified that
people
2006
walking
Tr.
202,
" [o]ne of
past
208,
the
car
213,
[the two men]
Virginia,
toward
215,
224,
14 th
251.)
looked like Darryl
[Moody] [''] and he had a black [ski] mask on" and the second "dude
was brown skinned.
a
plaid
jacket
on,
He was
black
about
five,
jeans."
around six feet.
(Aug.
30,
2006
Tr.
Scott could tell i t was Darryl Moody because
"he walk[s]
limp."
cousin
(Aug.
30,
2006
Tr.
214.)
Scott's
then
He had
213.)
with a
left.
Scott acknowledged that he "knew" Darryl Moody (Aug. 30,
2006 Tr. 227) , as he had sold drugs to Moody for a couple of
years.
(Aug. 30, 2006 Tr. 212.)
Craig Robinson arrived,
wash.
(Aug. 30,
At
some
2006 Tr.
point,
Robinson.
{Aug.
(Aug.
259.)
Robinson
wash and Floyd Green,
marijuana.
and Scott and Robinson left for the car
Scott
Scott's cousin,
30,
30,
and
2006
Tr.
2006 Tr.
returned
from
Tr.
215-16.)
After
car
asked Scott if he had any
258-59.)
Scott
sent
him
to
259.) Scott and Robinson walked to
Hardee's to get chicken and a drink around 9:10 p.m.
2006
the
buying
food
at
Hardee's,
(Aug.
30,
Scott
and
Robinson walked back to Scott's car and Robinson got in on the
passenger
side.
doors were open.
Scott
stood on
(Aug. 30,
Approximately
five
the
driver's
later,
or
approximately
to thirty minutes after Moody first walked by,
and asked Robinson for marijuana as he sat
(Aug.
did
(Aug.
not
have
any.
30,
2006 Tr.
30,
2006
218),
30,
2006 Tr.
and then
Tr.
twenty
man walked up
in the car with his
249.)
218.)
.
.
Robinson
The
.
man
then
(Aug.
30,
2006
and then placed the gun near Robinson's head.
219.)
[Robinson]
charged him and the gun went off."
2006 Tr.
218-19.)
30,
2006
220.)
Tr.
gun that was not
220-21.)
(Aug.
The man "said I'm going to shoot you if -
30,
2006 Tr.
a
218-19,
"pulled out the gun and racked the chamber
Tr.
Both car
2006 Tr. 217.)
minutes
feet on the ground.
side.
(Aug.
Scott heard only one shot fired.
Scott
tried
to
reach
for
his
loaded and was between the seats.
Scott
.380
(Aug.
caliber
(Aug.
"ducked around beside the car and
10
-
30,
[then
he]
got up.
gone."
[Robinson]
(Aug.
30,
was
2006 Tr.
laying on the ground,
219.)
ground and was not moving.
Robinson was face first on the
(Aug. 30,
Just prior to the shooting,
(Aug.
the
226.)
222.)
After
(Aug. 30, 2006 Tr. 226.)®
the shooting. Moody was gone.
as
2006 Tr.
Scott saw Darryl Moody standing
across the street behind a van.
identified Randall
the dude was
30,
2006 Tr.
Scott
shooter in the
courtroom.
(Aug.
30,
(Aug.
2006
Tr.
2006 Tr. 223.)®
Scott
229.)
called
Scott
Virginia
911
spoke
State
explained that
brown skinned.
after
with
Police
the
of
shooter was
(Aug.
shooting.
Special
Bureau
He had,
and corn rows.
the
like,
30,
Agent
Criminal
about
J.
Spencer
of
the
Investigations
and
"six feet,
'Chinky'
2006 Tr.
A.
eyes"
228,
30,
or
254.)
slim.
231.)
shooter because
2006
Tr.
One person in the first
he
231-32.)
had braids
Several
third photo array to Scott.
and
days
Scott explained
(Aug.
30,
photos
again
because
he
eyes."
Agent
recalled
(Aug.
30,
Spencer brought a
2006 Tr.
Scott did not identify anyone in the array.
the
(Aug. 30,
lineup looked like the
"'Chinky'
later,
was
"Chinese eyes,"
that Agent Spencer first showed him two photo arrays.
2006 Tr.
He
233.)
At first,
Scott asked to see
that
the
shooter
had
® Scott also testified that earlier in the week he observed
Moody driving by Scott's
Tr.
house
several
times.
(Aug.
30,
2006
250.)
® At the time of the shooting, Scott did not know Randall's
name.
(Aug. 30, 2006 Tr. 223.)
11
braids,
(Aug.
and none
30,
of
2006 Tr.
the shooter,
confirmed
the
individuals
234.)
in
the
photos
had braids.
Scott then picked out an individual as
although that individual no longer had braids,
that
the
individual
in
the
photograph
was
the
235.)
Scott
testified that he was
was the individual who shot Robinson.
Darryl
Moody
testified
that
30,
certain that Randall
(Aug.
he
same
{Aug.
person Scott identified in the courtroom as Randall.
2006 Tr.
and
30,
and
2006 Tr.
Jerrard
270.)
Crump
were
friends and neighbors and they saw each other nearly every day.
(Aug.
30,
2006
Tr.
285.)
Moody
had
known
several years and Moody purchased drugs
2015 Tr.
286.)
Forrest
Scott
for
(Aug.
30,
from Scott.
Moody met Morris Randall
through friends
two weeks prior to the shooting and he knew him only as
(Aug.
30,
2006 Tr.
288.)
On October 14,
2005,
about
"Dee."
Moody and Crump
went to Eric Berkley's house and Moody spoke with Berkley about
robbing Forrest Scott.
Berkley's
role
conversation
Forrest
out
in
the
(Aug.
of
(Aug.
30,
the
2006 Tr.
robbery
2006
house."
Although Berkley was
30,
Tr.
(Aug.
was
324,
to
401-02)
30,
400-01,
engage
and
2006
to
Tr.
involved in planning the
326,
412-13.)
from Randall.
(Aug.
At
30,
some
point.
2006 Tr.
12
Crump
287,
289,
received
325.)
Scott
"[get]
324-25,
robbery,
"never showed up" to commit the planned robbery.
Tr.
406-07.)
(Aug.
a
in
Mr.
327.)
Berkley
30,
2006
phone
call
Crump confirmed that he and Moody met on October 14,
to discuss going to West Point to rob Forrest Scott.
2006
Tr.
374-75.)
Crump met
before the shooting,
Tr.
to
377-78.)
rob
(Aug.
through Moody a
and knew him only as "Dee."
because
he
"needed
1100
and
378,
30,
Crump
418.)
and
Street
(Aug.
there."
picked
293,
Randall
Randall
30,
(Aug.
and
381-82.)
Moody
2006 Tr.
up
30,
2006 Tr.
(Aug.
mask.
2006 Tr.
(Aug.
30,
Randall
called Crump
assumed
the
382-83.)
pleading
to
at
pay
East
a
bill."
was
Instead,
30,
on
2006 Tr.
case
332.)
to pick
that
his
from
297.)
them up,
Crump
Point.
(Aug.
to
13th
The hat had no
and at
(Aug.
picked
wasn't
case
They knew who he was."
Street
A few minutes later.
taken place.
he
15th
Moody wore a hat with no bill
2006 Tr.
when
pleading
in West
Mall
382), but "[t]here was nobody out
294.)
30,
robbery had
his
Gate
(Aug.
(Aug.
30,
30,
them
going
stating
that
up,
home
that
they
2006 Tr.
30,
2006
13
Tr.
297-98,
face
Moody and
time.
2006
Crump
Tr.
"Randall
broke.
Crump then drove to Moody's sister-in-law,
home
2006
Crump parked the car on 15th
walked
294,
"pulled down."
him.
30,
Crump drove to West Point where Scott lived.
2006 Tr.
Street
Moody
few days
(Aug.
dollars
Laburnum in Henrico County around 6:30 p.m.
(Aug.
30,
2006 Tr. 375, 379.)
Moody
290-91,
(Aug.
Crump explained that Randall came up with the idea
Scott
30,
Randall
2005
had
And
297,
was
Mr.
recognized
383.)
Trevonda King's,
384-85.)
King
confirmed that Moody,
her
house
(Aug.
around
30,
2006
agitated or
black
Crump,
8:00
Tr.
p.m.
black
and
345-46,
nervous.
pants,
and a man she did not know came to
353.)
(Aug.
shirt,
30,
and
wore an army fatigue jacket,
braids.
(Aug.
Randall
in
30,
the
Crump and Moody.
The
back
by
men
stayed
vacant
"proceed with
hat,
347,
man
and
and
the
Randall
lot
only a
(Aug.
few
of
301,
the
388.)
house
2006
Tr.
(Aug.
robbery."
Kirby
talk
street near a van.
Forrest
Point.
(Aug.
Scott
(Aug.
Street
30,
to
(Aug.
30,
Rosemary Davis
as
third man
her
house
with
30,
2006
and
and
300,
then
drove
385-86),
Tr.
386.)
(Aug.
30,
to
Crump
2006 Tr.
the car and walked to the
15th Street.
(Aug.
30,
2006
Randall crossed the street and "went on the side
to
in the van.
seemed
Moody wore
the
to
minutes
30,
and Moody got out of
intersection of
Tr.
Crump
King identified
came
parked the car in the same spot as earlier.
300.)
minutes
and his hair was in
353.)"'
who
ten
346-47.)
fatigue hat,
the
about
(Aug. 30, 2006 Tr. 348.)
three
the
Tr.
black
345,
as
for
Moody
2006
a
a
2006 Tr.
courtroom
stayed
somebody"
30,
2006 Tr.
2006 Tr.
testified
and his
2006
Tr.
but
Moody
302.)
stayed across
the
Rosemary Davis was
303, 359.)
that
family
358.)
she
lived in
on 142 0
On the
the
same house
Kirby Street
in West
evening Robinson was
Crump testified that Randall wore dark jeans and boots, a
fatigue jacket, and a black cap, and did not have braids.
(Aug.
30,
2006 Tr.
414.)
14
shot,
near
dark,
a
friend
picked
parked on 14th and Kirby Streets.
Davis
up
in
(Aug. 30,
a
van
2006 Tr.
that
359,
As Davis got inside the van and fastened the seat belt,
was
362.)
she saw
Moody on the sidewalk near the passenger-side window across the
street from the vacant lot.
made a
a
{Aug.
30,
(Aug.
30,
2006 Tr.
364-65.)
boy running from across here and met
they ran down towards 15th Street
365.)
The
man
"ran
Forrest Scott and
Tr.
367.)
or
something,
across
or
plaits,
Tr.
van
asked
had
2006
that
pulled
Tr.
30,
2006 Tr.
vacant
lot
is
(Aug.
Randall
he
something
started
away,
303.)
behind
what
tried
testified
[Randall's]
was
where
30,
2006
"wave cap
like
shoulder
and
to
Moody
Crump also
left
walk
heard
heard
the
back
to
one
the
Crump's
gunshot.
gunshot
car.
(Aug.
30,
a
few
2006
Moody ran back to the car and he looked back and saw
running
"[Robinson]
Crump
(Aug.
the
where
it
after Moody and Randall
389.)
Randall
."
(Aug. 30, 2 006 Tr. 3 66.)
testified
30,
minutes
.
at the corner and
car was parked."
but
or
Davis saw "this young
[Moody]
.
The van
loud pop,
The man "had on dark clothing" and either a
Moody
the
.
from
[Robinson's]
length on his head."
(Aug.
362.)
u-turn toward 15th Street and Davis heard a
gunshot.
car,
2006 Tr.
him.
had
to
that
(Aug.
happened
attack
Moody
me."
told
30,
and
2006
Tr.
Randall
(Aug.
Randall
30,
15
responded
2006
"that
back and was protecting him while
304.)
Tr.
[Moody]
Moody
that
304.)
had
this took place."
(Aug.
30,
"just
to
Randall
30,
2006 Tr.
390.)
get
of
"was
2006
out
Moody told Crump to drive to Richmond
the
area."
individual,
390.)
and
Moody
Randall
finally
men
Spradlin,
a
60
drove
female
in
Sandston.
30,
with a
the
to
friend
30,
and
of
Agent
he
(Aug.
shot
"he
the
said
he
30,
and murder
identified
Randall,
Jr.,
who was
2006
Tr.
103,
124.)
and
determined
that
Dee
behind
Sept.
Randall
307.)
that
of
T.
305,
in
1,
the
YMCA
2006 Tr.
the
in
27-
courtroom.
Crump also testified he
he
was
Craig
(Aug.
Crump,
known as
Agent
2006
Kayla
Moody never saw Randall or Crump
2005.
Jerrard
30,
up
2006 Tr. 391.)
testified
Spencer
392;
identified
2006 Tr.
Virginia on October 14,
pick
Crump dropped Randall off on
306,
395.)
to
(Aug.
apartments
Tr.
(Aug. 30,
Spencer
shooting
2006
306,
(Aug.
never saw a gun.
(x9110)
if
that
County
Crump's.
Gables
Crump
2006 Tr.
gun.
alleged
390.)
because he resisted the robbery."
Chesterfield
Seven
(Aug.
Moody
(Aug.
twice
responded
After picking up Spradlin,
28.)
Tr.
2006 Tr. 391.)
The
Route
2006
to our grave."
asked Randall
didn't have any other choice,
392.)
30,
saying we have to take this
Tr.
(Aug. 30,
(Aug.
assigned
Robinson,
30,
"Dee,"
as
(x6623),
Crump
Point,
Agent
and
Morris
suspects.
cell
the
103.)
Moody,
Spencer reviewed
work
in West
2006 Tr.
Darryl
to
(Aug.
phone
(x6608),
and
30,
records
Moody
made calls to one another on the evening of October 14,
16
2005.
(Aug.
demonstrated
30,
2006
that
no
Tr.
phone
Dee's phone after 9:03 p.m.
Tr. 128.)
The
used
in
the
with
house.
were
The
made
phone
or
records
from
(Aug.
and before 9:43 p.m.
received
2006
30,
shooting
was
not
located.
(Aug.
30,
129.)
On the morning of
spoke
calls
127.)®
The shooting occurred roughly between 9:10 and 9:43.®
firearm
2006 Tr.
124,
and
(Aug.
30,
Sunday,
arrested
2006 Tr.
October 16,
Crump
and
309-10,
Moody
394.)
2005,
at
Agent
Moody's
394.)
parents'
Crump learned that the
police were looking for him so he turned himself in.
2006 Tr.
Spencer
(Aug.
30,
Crump provided Agent Spencer with the name Dee
and Agent Spencer learned that Dee was Randall on following day.
(Aug.
30,
2006 Tr.
untruthful
and
he
155.)
statements
"didn't
® Moody
want
Moody admitted at trial that he made
to Agent
to
be
2006 Tr.
involved
and Crump confirmed that
belonged to them (see Aug.
Randall confirmed that the
Braxton.
(Sept. 1, 2006 Tr.
made several phone calls to
30,
Spencer because
308,
with
these
he
it,"
was
"scared"
but
that
he
telephone numbers
30, 2006 Tr. 285, 374, 376) and
phone he used belonged to Ethel
94-95.)
Moody, Crump, and Randall
each other that afternoon.
(Aug.
376-77.)
Agent Spencer reviewed cell phone records and determined
that Dee called Crump on October 14, 2005 at 11:01 a.m. and the
call lasted until 11:13 a.m.
(Aug. 30, 2006 Tr. 124.)
At 5:02
p.m.. Dee called Moody and then Crump called Dee.
(Aug. 30,
2006 Tr. 127.)
At 6:31 p.m.. Dee called Crump.
(Aug. 30, 2006
Tr. 127.)
At 9:03 p.m.. Dee received a call from the number
804-737-9242, and at 9:43 p.m. Dee made a call to that same
phone number.
(Aug. 30, 2006 Tr. 128.)
® Agent Spencer testified that he found a Hardee's receipt
in Forrest Scott's car reflecting the purchase time as 9:10 p.m.
(Aug. 30, 2006 Tr. 118.)
17
eventually told the truth.
pled
guilty
commit
to
robbery,
October 14,
that
first
he
372,
The
(Aug.
been
Craig Robinson,
2006 Tr.
degree
30,
murder
2006 Tr,
or
30,
indicted
but
homicide,
that
he
crimes
had not
fugitive
149.)
team
involving
had his
arrested
Later that day.
explained
involvement
the
that
in
the
Crump
murder
implicated Randall.
any knowledge of
events of
the
death
trial.
(Aug.
Randall
2006
(Aug.
Moody
had
Craig Robinson
30,
the murder,
Tr.
alibi."
150-51.)
and
homicide,
Randall
(Aug.
the
2005.
On
the
30,
home
(Aug.
2006
Tr.
admitted
and
150.)
to
that
30,
30,
Randall
had
denied
but stated that he had known Moody
Agent
Spencer
"simply
2006 Tr.
of
their
they
replied
151.)
asked
he
him
has
a
(Aug.
about
rock
the
solid
Agent Spencer asked him about
his alibi and Randall stated "it was not important."
2006 Tr.
of
Agent Spencer spoke with Randall
and
of
at
for a long time and sold him crack cocaine and marijuana.
30,
to
Crump testified
Ethel Braxton in Henrico County on October 18,
and
conspiracy
2006 Tr. 312-13.)
for
Moody
396.)
police
2006 Tr.
310-11.)
and attempted robbery related to
2005.
had
(Aug.
(Aug.
30,
151.)
October
third
21,
2005,
individual
array line-up.
(Aug.
Forrest
involved
30,
in
Scott
the
identified
shooting,
2006 Tr. 134-35, 144-46.)
18
Randall,
from
a
as
photo
D.
Randall's Defense At Trial
Hattie Mae Williams testified that she knew Randall through
her
grandson's
72.)^°
mother,
Williams
Whitcomb Court
2005,
approximately
testified
7:00
(Sept.
86.)
Tr.
76,
2006 Tr.
1,
the
2006
and
a
gave
Commonwealth
birthday was
date,
at
Williams
Jamila's
father's
phone call
(Sept.
Randall
called
in
73.)
in Sandston around 10:00 p.m.
The
home
exact
Tr.
Tr.
October 14,
Randall made a
friend
2006
her
"around"
came over was
81.)
1,
at
few minutes after 7:00 p.m.
78-79.)
a
2006
ride
(Sept.
Jamila
1,
1,
to
2006
Chamblis
February 22
to
not October
(Sept. 1, 2006 Tr. 132.)
Randall
calls
to
testified
and
that
received
Crump
that
he
"had
going to come up,
around
calls
"strictly drug deals."
in
was
remember
(Sept.
testify that her father's
14.
Randall
not
day Randall
Williams
Chamblis's house
(Sept.
End of Richmond
could
1,
a
Chamblis.
that
p.m.
the
from her house,
Tr.
the East
she
that
birthday.
testified
in
although
Jamila
some
October
from
(Sept.
Moody
1,
weed"
2006
and
meet with me"
14,
and
Tr.
2005,
made
that
were
Randall
told
Crump
95.)
"[t]hey
he
told
me
they
were
at the Fairfield Commons Mall^^
The Court corrects the spelling of Jamila Chamblis's name
quotations from the record to reflect how Chamblis herself
spelled her name at the beginning of her testimony.
The Court notes that Eastgate Mall and Fairfield Commons
are
the
1990.
same
See
mall.
Randy
The
mall
Hallman,
was
renamed
Walmart
19
Fairfield
Supercenter
to
Commons
anchor
in
new
because Randall did not have a
Randall
drove
left
to
Seven
then drove
98-99.)
the
mall
Gables
with
and
to
to Hattie Mae Williams's
the
porch
of
(Sept.
call
child
(Sept.
Williams's
1,
Jamila
thereafter.
a
(Sept.
1,
Crump
buy
2006 Tr.
and
crack
home.
the
three
men
Moody,
for
(Sept.
96-97.)
and
1,
2006
Tr.
Randall testified that Crump and Moody dropped Randall
drugs.
to
Moody
apartments
off at Williams's home.
on
car.
2006 Tr.
together
1,
home
100.)
Chamblis
(Sept.
1,
who
she
to
hide
100.)
that
Randall
he
was
sat
selling
Randall used Williams's phone
came
2006 Tr.
before
2006 Tr.
over
100-01.)
began
to
Williams's
soon
Chamblis and Moody had
dating
Randall.
Chamblis
became angry when Randall told her that he had been with Moody,
so Randall left Williams's house,
was gone.
(Sept.
Randall
1, 2006 Tr.
testified
and when he returned,
Chamblis
101, 115-16.)
that
he
stayed
at
Williams's
house
about an hour from approximately 9:00 p.m. until 10 p.m.
for
(Sept.
1, 2006 Tr. 102.)
Around 10:00 p.m., Williams and her boyfriend
drove
Chamblis's
Randall
stayed
to
overnight.
(Sept.
house
1,
2006
in
Tr.
Sandston
where
103-04.)
Randall
Remarkably,
Chamblis did not testify to support Randall's alibi.
Randall
"hair
out"
testified
at
the
time
eastern Henrico center,
10:30
p.m.),
that
of
he
never had
his
arrest
corn
rows
photograph,
Richmond Times-Dispatch,
but
wore his
never
shot
(June 26,
2014
http://www.richmond.com/business/article_4ea91787-
39e6-5de6-9e4f-d4c4afa519a6.html (last visited July 31, 2015).
20
anyone
in
West
Point
robbery
with
Crump
October
14,
on
2005.
testified
had a
Tr.
that
or
October
Moody,
and
(Sept.
Moody
and
14,
1,
2015,
was
never
not
2006
in
Tr.
Crump mentioned
West
When
about his alibi,
asked
about
his
to
refusal
Point
105-06.)
to
that
(Sept.
tell
a
on
Randall
Randall
"beef" with "some individuals out there."
124.)
discussed
the
they
1,
2006
officers
Randall explained that he told the officers who
interviewed him that his alibi was not
had already told me I
was charged.
important
they
knew anything I
And I
"because
said
whatsoever would have been turned around and used against me."
(Sept. 1, 2006 Tr. 126.)
E.
Randall's
Instead
basis
for
of
arguing
overcoming
incorporates
Amendment
Evidence Of
his
ineffective
actual
the
innocence
claims.
Innocence
innocence
statute
argument
Randall
assistance
of
into
argues
by
not
independently
limitations,
his
that
obtaining
as
Randall
substantive
counsel
a
Sixth
rendered
certain
witness
testimony or telephone records
that would show he was actually
innocent.
addresses
Respondent
innocence
in
assistance
counsel
be
context
claims.
failed to
Travors,
could
the
also
For
of
his
example,
developed"
Surles
that
Randall
"to determine
would
21
have
claims
substantive
investigate Floyd Green,
and Charles
Randall's
first
ineffective
argues
Eric Berkley,
i f matters
demonstrated
of
that
Sidney
of defense
that
he
was
actually innocent of the crimes.
8
(capitalization and emphasis
claim,
he
§ 2254
provides
Pet.
Charles
Ex.
D,
Surles,
pendency of
Aff.")).
the
of
executed
on
direct
February
appeal
Randall also argues
that
the
phone
testimony of Randall's
established
night
of
that
the
Chamblis,
was
20,
(Id.
would
in
shooting and made
and therefore was not
the
a
(Mem.
2007,
his
Supp.
Ex.
E,
during
at
1
the
("Surles
failed to obtain the
Jamila Chambliss.
have
Randall
corroborated
the
Hattie Mae Williams,
and
City
the
alibi witness,
Randall
Green
4,
and the affidavit of
that counsel
records
§ 2554 Pet.
In support of
Floyd
("Green Aff.")),
cell phone records of his girlfriend,
claims
Supp.
corrected).)
affidavit
at 1-2
Randall's
(See Mem.
phone
of
call
Richmond
from
in West Point.
on
her home
(Id.
to
at 12-13.)
Randall now submits Jamila Chambliss's phone records as evidence
of his innocence.
In
order
innocence
§ 2254
of
to
excuses
Petition,
his
(Id.
Sixth
Ex.
must
whether
it
Randall's
whether
his
untimely
Amendment
claims,
"new
presented at trial."
from
the
Schlup,
Court
of
the
actual
instant
to reach the merits
must
extricate
the Sixth Amendment claims.
examine
reliable
purported
filing
thereby allowing the Court
independently
is
at 1.)
determine
three pieces of evidence
Court
F,
this
evidence
513 U.S.
22
evidence
.
.
at 324.
.
to
that
the
The
determine
was
not
As discussed in
greater detail
below,
Randall's
new evidence
is
more confusing
than compelling.
1.
Affidavit Of Floyd Green
Randall's
claim of
actual
innocence
is
first
affidavit of Floyd Green, executed on March 21,
after
Randall's
incarcerated
convictions,
with
Randall
(Green
at
Aff.
Nottoway
at
founded
2011,
on
the
five years
2.)
Green
Center
Correctional
was
and
claims to have been with Randall's co-defendants on the night of
the
murder
Green
and
vaguely
robbery
suggests
of
Craig
that
Robinson.
Eric
Berkley
In
is
his
affidavit
actually
individual who shot Craig Robinson:
. . . I stopped at Eric's house, which was about 4:00
p.m. and Sidney was there with him in the yard washing
his vehicle.
Eric told me that Darryl Moody and his
friend, Crump stopped by earlier that day, talking
about confronting Forrest about some beef and they
wanted everybody to roll out with them . . . .
Plus
Eric had already told me that he wanted to beat
Forrest up because he ran Eric's wife off the road, so
I agreed to go with him . . . .
Later that evening, I went back to Eric's house.
. . .
I ro[de] with Charles, Sidney, and Eric, while
Darryl and Crump was in their vehicle.
When we got to
West Point . . . we dropped Charles off at Academy
Apartments, and me, Sidney and Eric went to Hardee's.
Eric and Sidney went in Hardee's, while I
stayed in the vehicle.
That's when I
seen [sic]
Forrest
and
I
asked
him
where
the
weed
was.
He
said
Craig got i t . . . .
. . . Eric and Darryl decided that they was going
to Forrest's crib together,
so we parked at a cut
where you can see the railroad tracks around the
corner from Forrest's house.
Eric and Darryl said
they was [sic] going to check the scene out.
Eventually Eric and Darryl came back to where we were
parked and said they didn't see anybody, . . . so I
23
the
got upset,
Hardee's.
told Eric he had a chance to get Forrest at
.
.
.
. . .
That's when I got very frustrated . . .
because Eric wanted me to ride out with him to fight
Forrest, who he had a chance to get earlier, but he
didn't, so I told him to take me home.
That's when we
parked in the same place that we parked at before,
around the corner from Forrest's house where you can
see the railroad tracks, and Eric said hold up.
That
him and Darryl was going to check the scene out, and I
was like for what, Charles already told him that only
Forrest and Mark was out there.
Just go and beat him
up . . . .
So Eric and Darryl went toward Forrest's
house,
and
Sidney
and
I
stayed
in
the
vehicle
listening to some music.
Crump stayed in the other
vehicle.
Minutes later, Darryl and Eric came back
running.
Eric told me and Sidney to take the vehicle
back to his house . . . and he jumped in the vehicle
with
Darryl
and
Crump
without
telling
us
what
happened....
Next day when I seen [sic] Eric, he told me not
to say nothing to nobody, so I didn't because I didn't
want any trouble for myself or my family.
Prior
to
meeting
Morris
Randall
at
Nottoway
Correctional Center,
I did not know him,
and never
seen
him before.
Morris
was
not
with us
when we
went
to Forrest's house, and he was not a passenger in the
vehicle Moody and his friend were riding in.
(Green Aff.
1-2.)
12
Scott testified that he knew Eric Berkley.
(Aug. 30,
2006 Tr.
257.)
Scott saw Berkley on October 14,
2005 at
Hardee's with Scott's cousin, Floyd Green, and several other
people who he could not identify because they were in the back
of a car.
(Aug. 30, 2006 Tr. 257.)
Scott admitted that around
the time of the shooting he and Berkley "had some issues . . . .
over a girl."
(Aug. 30, 2006 Tr. 258.)
Scott testified that he
was "[p]ositive" Eric Berkley did not shoot Robinson.
(Aug. 30,
2006 Tr.
273.)
24
2.
Randall
executed
Affidavit Of
also
on
represents,
Charles
submits
February
20,
the
Surles
affidavit
2007.
In
of
Charles
his
affidavit
Surles,
Surles
in relevant part:
On the
day Craig Robinson was
killed,
Eric
Berkley came by my house and told me that Darryl Moody
and a dude named Crump had just left his house and
they were going to West Point later that night to
confront Forrest Scott about a beef they had with each
other.
We left my house and went to where Eric
lives
....
.
We
chilled
at
Eric's
house
for
a
little
while and then Sidney and Floyd Green stopped by.
A
few hours pas[sed] and Darryl Moody and Crump came
back to Eric's house right before dark.
Eric wanted
me to go with them to Forrest's house so that I could
check out the area to see if anybody was out there
with Forrest.
.
.
.
Floyd and Sidney ro [de] with me and Eric, Moody
and Crump rode in a separate car.
When we got into
West Point we went straight to Pilot [ ] Gas station.
I
got out and walked to Forrest's house which is
around the corner from Pilot, while they sat in the
parking lot.
When I got out there I saw Forrest, Mark
. . . and my mother Rosemary Davis. . . .
I walk back
to
Pilot
and
had
Eric
take
me
to
Academy
Apartments.... I told them who was out there and
they dropped me off. . . .
Eric, Sydney, Floyd, Moody
and Crump came back to the apartments and they told me
they went out there but nothing happened and wanted me
to check out the area for them again so I rode back
with them.
When
I
went
out
there
the
second
time
Forrest
and
Mark Gordon was the only two I saw. . . .
Eric took
me back to the Academy to drop me off. Moody and Crump
followed.
After I was dropped off a few minutes past
and I called my mom.
As I was talking to her she told
me she was pulling off and then she said she heard a
gunshot and the phone went dead.
(Surles Aff.
1.)
25
3.
Phone
Finally,
Chamblis.
Randall
The
2015,
0432.
(Mem.
is
private
Supp.
shows
received
Supp.
"the
same
§
§ 2254 Pet.
advance
of
explained
Randall's
F.
a
the
that
at
Pet.
Ex.
7:37
from
number
that
the
F,
Ms.
belonging
14.)
phone
call
2254
investigator as
his Motion for a
in
submits
record
Chamblis
this
Records
records
p.m.
to her
number
1.)
Williams
at
Jamila
on October
phone
at
of
804-516-
Randall
provided
the
claims
to
time."
the
(Mem.
Randall admitted during the hearing on
New Trial that he had Chamblis's phone records
trial.
below,
(Oct.
4,
Chamblis's
2006
phone
Tr.
15.)
records
Moreover,
largely
as
refute
alibi.
Reliability of Randall's Evidence
The Supreme Court has explained that to be credible,
types
14,
of
"new
allegations
(1995).
of
reliable
evidence"
innocence.
These
include
Schlup
may
v.
support
Delo,
"exculpatory
trustworthy eyewitness accounts,
513
a
three
petitioner's
U.S.
scientific
298,
324
evidence,
or critical physical evidence-
that was not presented at trial."
Id.
Randall's new evidence
fails to fall into any of these categories.
Randall
evidence.
clearly
offers
no
new
exculpatory
To the extent Chamblis's phone records are
scientific
"physical
evidence," these records are certainly not "critical" as further
discussed
infra
Part
III.E.
Finally,
26
the
affidavits
Randall
submits
in
support
of
eyewitness accounts."
his
innocence
Schlup,
513 U.S.
are
at
not
324.
"trustworthyNeither Green
nor Surles were eyewitnesses to the attempted robbery of Forrest
Scott
or
the
shooting
of
Craig
Robinson.
At
most,
these
affidavits are vague statements from other felons that hint that
a
new
individual,
Neither Randall,
Eric
Berkley,
may
have
nor either of the affiants,
killed
has stated who shot
and killed Craig Robinson if Randall did not.
faults
counsel
for
failing
to
investigate
potential suspect [ ] ,"
but does not state
shooter.
ECF No.
(Traverse 3,
evidence
Thus,
that
it
is
evidence i s
Berkley
doubtful
was
20.)
the
that
Further,
the
Court
Randall's affidavits
Berkley
Randall
"as
[a]
the
Randall offers no competent
Randall
has
At most,
that Berkley was
individual
"new reliable evidence"
Robinson.
who
makes
a
for this
doubts
about
shot
showing
Robinson.
that
his
reason alone.
the
credibility
in support of his claim of innocence.
of
The
Supreme Court has instructed that
when considering an actual-innocence claim in the
context of a request for an evidentiary hearing, the
District Court need not "test the new evidence by a
standard appropriate for deciding a motion for summary
judgment," but rather may "consider how the timing of
the submission and the likely credibility of the
affiants bear on the probable reliability of that
evidence."
House,
The
lack
547
U.S.
affidavits
the
ring
at
537
Randall
of
truth.
(quoting
produces
Both
Schlup,
as
evidence
affidavits
27
513
U.S.
of
were
at
his
made
331-32.)
innocence
after
the
conclusion
of
individuals
currently
Randall's
with
felony
fact
that
Floyd
Randall
both
trial
and
convictions.
incarcerated.
incarcerated with
sheer
criminal
prior
Charles
Green
to
admits
making
affiants
are
have
the
a
made
by
Surles
is
that
he
was
affidavit.
history
of
The
felony
convictions casts doubt on the reliability of their testimony.
Additionally,
the
dubious authenticity.
notarization
any
indication
affidavit
is
of
of
The notarization on Green's affidavit
where
or
p l a c e . O n Surles's affidavit,
name,
each
Both lack any visible seal or stamp and
are entirely handwritten.
lacks
on
when
the
the notary's
notarization
took
handwritten date,
and place of notarization looks strikingly like Randall's
own handwriting when compared to his submissions.
Despite
affidavits,
the
even
Court's
doubt
considering
evidence put forth at trial,
found Randall guilty.
about
this
new
many a
the
reliability of
evidence
along
these
with
the
reasonable juror would have
See Sharpe, 593 F.3d at 377."
As of 2009,
every
notarial statement; 2) the
notarial act must contain:
1)
a
date of the notarial act; 3) the
place of the notarial act; 4) the expiration of the notary's
commission;
5)
the
notary's
signature;
6)
the
notary's
registration number; 7) a photographically reproducible notary
seal/stamp.
See Va. Code Ann. § 47.1-16 (2009).
In 2007, every
notarization required the date, the place of the notarial
and the expiration of the notary's commission.
See Va.
Ann.
§ 47.1-16
act,
Code
(2007).
From review of
the
record,
the
Court
notes
that
this
is
not
Randall's
first
attempt
at
providing
evidence
of
his
innocence through statements of other individuals with whom he
28
was incarcerated.
Randall has provided different evidence of
his innocence at almost every stage of his challenge to his
convictions.
For example, on September 21, 2006, counsel filed
a motion for a new trial based on Randall's theory that he was
innocent.
The motion was based on the potential testimony of
Mr. Ayres and Mr. Brown, who Randall was placed in segregation
with in jail.
(Oct. 4, 2006 Tr. 3-4.)
Counsel explained that
Brown
would say that Mr. Moody was incarcerated in Lancaster
County
Jail
and
had
developed
a
relationship
with . . . Mr. Brown, but that Mr. Moody had told him
that Mr. Randall was essentially, the scapegoat; that,
in fact,
Mr.
Randall was not present during the
robbery and that part of the reason that Mr. Randall
was named, number one, was to get themselves out of
trouble,
but
also
because
Mr.
Randall
had
a
relationship with Mr. Moody's baby's mother.
(Oct.
4,
2006 Tr.
4);
see Motion for New Trial,
Commonwea11h v.
Randall, No. CR06-20 (00) - (04) , at 1 (Va. Cir. Ct. filed Sept.
21, 2006).
Counsel explained that Mr. Ayers would testify that
Forrest Scott only "identified Mr.
Randall
[from the photo
lineup] just to get himself a better deal."
(Oct. 4, 2006 Tr.
5); see Motion for New Trial, Randall, CR06-20(00)-(04), at 1.
Counsel confirmed that "[t]hey didn't see personally anything of
the shooting themselves.
They were just repeating what Mr.
Moody told them in jail."
(Oct. 4, 2006 Tr. 4.)
The Circuit
Court noted that at most, this testimony would have come in at
trial to impeach the credibility of Moody and Scott.
(Oct. 4,
2006 Tr.
6.)
The Court denied the motion because
these two witnesses, Mr. Moody and Mr. Forrest Scott,
were both extensively cross-examined and issues were
brought out to attack their credibility and diminish
their testimony in the eyes of the jury.
The jury with all the evidence outside of the
direct testimony of Mr. Moody and Mr. Scott there was
other independent evidence that showed Mr. Randall was
present in the immediate area.
This just would have
been, the testimony from these two new witnesses that
the difference put forward today by the affidavits,
would
just
be
merely
cumulative
evidence
toward
further
made
they
impeachment.
any difference
placed on the
I
do
not
think
it
would
have
to the jury in the credibility
testimony of Mr. Moody or Mr.
Scott.
It would not have changed any result in the
outcome of the case because, at best, this would just
be further impeachment evidence of their credibility.
29
G.
Consideration Of All The Evidence
The
sum
Surles's
of
Randall's
affidavits
is
new
that
evidence
contained
neither Green nor
in
Green's
Surles
and
saw Randall
with Moody and Crump at any time during the day of October 14,
2005,
and that
Crump in West
to
support
Eric Berkley was
Point.
his
the
individual with Moody and
Through the phone records,
alibi
that
he
was
in Richmond
Randall seeks
and not
in West
Point on the evening of the shooting.
Despite
a
veiled
attempt
to
substitute
Eric
Berkley
for
Randall and to disavow Randall's involvement in the robbery and
shooting in West Point,
lend
sufficient
Commonwealth's
the affidavits and phone records fail to
support
abundant
for
Randall's
evidence
of
alibi
Randall's
to
overcome
involvement
in
the
the
crimes.
Four
witnesses
identified
Randall
accompanied Crump and Moody around the
as
the
time
of
individual
the
who
shooting.
(Oct. 4, 2006 Tr. 8-9.)
Perhaps indicative of each affiant's
veracity, Randall did not submit these affidavits in support of
his
§
2254
Petition.
While Randall offers motives for several witness to lie,
counsel questioned these witnesses during trial about such
potential motives for their testimony.
Counsel attacked Moody's
credibility based on inconsistent statements that he made to
police
and
Moody
explained
that
he
either
did
not
remember
making such statements or that he lied initially to "save [his]
ass." (Aug. 30, 2006 Tr. 322; see Mem. Supp. Mot. Dismiss Ex. 3
nil 4.3,
4.6,
ECF No.
15-3
("Johnson Aff.").)
Counsel so
vigorously
attacked
Moody's
credibility
that
the
Court
intervened
witness
and
said
told
he
counsel
lied
many
to
move
times
30
on
.
because
.
.
."
"it's
(Aug.
clear
this
30,
2006
Forrest
Scott,
the
only
witness
to
observe
the
shooting,
identified Moody from a photo array and in the courtroom as the
shooter.
Scott explained that he knew Eric Berkley,
was "positive" that Berkley was not the shooter.
Tr.
273.)
time of
Scott
Scott
testified
the shooting.
to have
that
he
did not
and that he
(Aug.
30,
know Randall
at
2006
the
Randall offers no persuasive reason for
lied about Randall's
involvement.
Moody and Crump both testified to Randall's
the plan to rob Forrest Scott.
involvement in
Moody and Crump testified that
Randall was with them in West Point at the time of the shooting.
Moody and Randall
Scott,
both
Moody
exited Crump's
and
Crump
heard
Moody ran back to Crump's car.
any believable
reason why
the blame on Randall.^®
car,
a
Again,
Crump
Randall
left
gunshot,
and
to approach
Randall
and
Randall fails to produce
and Moody would
lie
and place
Both Moody and Crump also testified that
Eric Berkley was involved in the plan to rob Forrest Scott,
but
Tr. 329.)
Counsel asked Moody, Crump, and Forrest Scott about
their own criminal charges or convictions and whether they had a
deal with the Commonwealth in exchange for their testimony in
the case.
(See Aug. 30, 2006 Tr. 236, 314, 395-96.)
Counsel
also extensively questioned Forrest Scott about inconsistencies
in his testimony about his actions at the time of the robbery,
his ability to see the shooter, his drug use that night, and his
identification of Randall from the photo lineup,
(Aug. 30, 2006
Tr. 238-63, 271-72.)
Counsel also asked Scott about a history
of bad blood between Scott and Eric Berkley and Scott agreed
that they had issues pertaining to a woman.
(Aug. 30, 2006 Tr.
257-58.)
At most,
Randall claims that Moody had a child
Randall's current girlfriend.
(Sept. 1, 2006 Tr. 101.)
31
with
that
he
failed
324-37,
to
400-03,
show
up
406-07,
to
meet
412.)
them.
Thus,
(Aug.
the
30,
jury
2006
knew
Berkley's
involvement in the planned criminal activity,
persuaded
after
hearing
all
of
the
evidence
that
Tr.
about
but was
Randall,
not
Berkley, shot Robinson.
Trevonda
King
also
identified
Randall
as
the
man
who
accompanied Moody and Crump in West Point around the time of the
shooting.
(Aug.
30,
Importantly,
2006 Tr.
according
348-49.)
to
their
testimony,
neither
Green
nor Surles actually observed the attempted robbery and shooting
of
Craig Robinson.
Green
indicates
that
he
and
someone
Sidney "stayed in the vehicle listening to some music"
"Darryl
and
vehicle
Eric
back
[Moody]
with
came
and
happened."
(Green
Berkley,
Randall,
Crump
2.)
without
Green
never
in
the
telling
us
what
states
that
Eric
and he
riding in."
passenger
in
no
involvement
vehicle
Moody
At
and
most
his
friend
were
(Id.)
Surles wholly fails
makes
the
Robinson.
"jumped
"Morris was not with us when we went to Forrest's house,
a
Craig
Eric
states
not
shot
and
and then
he
was
not
Aff.
running"
named
statement
in
the
to mention Randall in his affidavit and
about
planned
Randall's
robbery
of
involvement
Forrest
Scott.
or
non-
Surles
offers little more than to swear that Eric Berkley was involved
in the plan to rob Scott and was with Crump and Moody over the
32
course
of
the
day.
However,
already established that
to
rob
took
Forrest
me
back
Scott.
to
the
the
evidence
Eric Berkley was
Additionally,
Academy
Moody and Crump followed."
put
at
trial
involved in the plan
Surles
[apartments]
(Surles Aff.
forth
states
to
1.)
drop
that
me
Thus,
"Eric
off
and
Surles was
not present at the scene of the attempted robbery and shooting.
Surles provides no competent testimony to counter the compelling
evidence offered at
Finally,
trial
Jamila
that Randall was the shooter.
Chamblis's
phone
records
create
confusion than support for Randall's alibi defense.
fail
to
square
inconsistencies
testimony elicited at trial.
established
that
Crump
between
and
Moody
alibi
and
the evidence clearly
picked
Fairfield Commons Mall around 6:30 p.m.
The records
Randall's
For example,
more
Randall
up
at
the
Randall testified that
Crump and Moody took him to Seven Gables Apartments in Sandston
to
obtain
Williams's
drugs,
home
and
then
dropped
in Whitcomb Court
Randall
off
at
in Richmond after
Hattie
7:00
Mae
p.m.
Randall states that this was his last interaction with Moody and
Crump that day.
that
Williams
Chamblis's
2006
and
house
(Sept.
{Sept.
1,
testimony.
Williams,
her
in
Tr.
Crump
dropped
1,
2006 Tr.
boyfriend
Seven Gables
102-03.)
and
Moody
Randall
off
96-100.)
drove
both
33
Randall
Apartments
However,
at
Randall testified
Seven
Jamila
around 10:00
contrary
testified
to
to
that
Gables
p.m.
Randall's
they,
Apartments
not
in
Sandston
after
the
Kayla Spradlin,
activity,
shooting.
(Aug.
30,
2006
Tr.
306,
392.)
a witness who had no involvement in the criminal
confirmed that Moody and Crump dropped off a man at an
apartment complex on Route 60 in Sandston after they picked her
up.
(Sept. 1, 2006 Tr.
27-28.)
In
fact
phone
addition,
records
the
after
trial
that
to
Randall
support
only
his
makes the records particularly suspect.
available
records
at
in
trial
his
and
defense.
Randall
claim
of
these
innocence
The phone records were
chose
Randall
submitted
not
contends
to
that
introduce
the
these
records
show
that Jamila Chambliss received a phone call made from Hattie Mae
Williams's house on October 14,
§ 2254
Pet.
Ex.
F,
at
1.)
2005 at
Hattie
Mae
7:37
p.m.
Williams
(Mem.
Supp.
testified
that
she knew Jamila Chamblis because she was her grandson's mother.
(Sept.
1,
2006
communications
Tr.
with
72.)
one
Arguably,
another.
the
Thus,
two
at
would
most,
have
the
records
indicate that a phone call occurred between the two numbers,
that Randall definitively placed this call.
72.)
(Sept.
1,
not
2006 Tr.
Williams also testified that Randall came inside her house
only once and it was on Chamblis's father's birthday.
2006
had
Tr.
birthday
81.)
is
Chamblis
February
22.
later
(Sept.
34
testified
l,
2006
that
Tr.
her
132.)
(Sept. 1,
father's
Combined
with this testimony,
the phone records do not prove that Randall
made this phone call at 7:37 p.m. on the night of the shooting.
Further examination of
doubt
on
Randall's
Ethel
Braxton's
testimony.
phone
picking him up at
Chamblis's phone
back
to
6:30 p.m.
[in
her
apartment]
her
1,
testimony,
2006
for
real,
104.)
Chamblis's
called Braxton's
she
Tr.
at
12:51
a.m.
records
and
also
12:55
Moody
just
who
calls
although
and
gave
Crump
with
you,
eight
to
that
Randall's
Chamblis
minutes
after
called from Williams's
to
Randall
Counsel explained that "[he]
for Hattie Mae Williams" but
helped to bolster her credibility."
honest
indicate
p.m.,
two
be
contrary
records
7:52
made
a.m.
to
he
It was almost morning time."
allegedly hung up with Randall
house.Chamblis
to
However,
phone
phone
prior
that
the two "sat up basically all that
talking and then we went to sleep.
(Sept.
testified
also casts
Randall also testified that after
arriving at Chamblis's house,
night
Randall
records
that
was
same
number
allegedly
at
with
did not obtain telephone
that "probably would have
(Johnson Aff. H 4.13.)
In his first habeas petition filed in the Circuit Court,
Randall claimed that he made this 7:52 p.m. call to Braxton from
Chamblis's phone because he and Chamblis got into an argument
and he wanted Braxton to pick him up.
See Petition for Writ of
Habeas Corpus, Randall v. Harmon, CL07-22, Attach, at 17 (Va.
Cir, Ct. filed Feb. 22, 2007).
The Court notes that the phone
call between Chamblis and Randall on Williams's phone lasted
until approximately 7:44.
A reasonable juror could infer that,
if the phone call with Chamblis ended at 7:44 p.m., it would be
implausible that Chamblis could have arrived at Williams's house
and that Randall and Chamblis could have already fought in eight
minutes from the end of that phone call.
35
her at
that
Braxton's
time.
phone
more
calls
than
Chamblis's
made
from
times.
made
records
records
CL07-22,
2007) .
Thus,
Ex.
§ 2254
number
indicated.
to
for
Q.,
This
Chamblis's
Writ
at
Pet.
introduced at
Braxton's
phone
Petition
Harmon,
Supp.
were
between
Braxton's
See
Randall's
(Mem.
of
2-3
trial
and
F.
Chamblis's
phone
Ct.
1.)"
number
several
around
Corpus,
Cir.
at
and reflected
included
Habeas
(Va.
Ex.
calls
the
same
Randall
filed
Feb.
v.
22,
if the phone records had been presented at trial,
testimony may have been further discredited.
A jury
could have easily concluded that Randall falsely testified that
he gave Braxton's phone back to her when Crump and Moody picked
him up in Richmond,
and that he was not with Chamblis when he
testified that he stayed at her house all night.
Tr.
99,
(Sept.
1,
2006
104.)
Perhaps
innocence
witness,
most
is
damning
the absence
his girlfriend,
Chamblis came
to
Randall's
current
of any testimony from his
Jamila Chamblis.
to Williams's house
claim
of
best alibi
According to Randall,
in the East
End of Richmond at
some point after the end of the phone call at 7:44 p.m. but left
prior to 9:00 p.m.
1,
2006
Tr.
on the evening of the shooting.
100-02;
Randall
Mem.
claimed
Supp.
that
he
§
2254
made
Pet.
these
Ex.
two
(See Sept.
F,
at
calls
1.)
from
Chamblis's phone to Braxton to let her know he was okay and with
Chamblis.
CL07-22,
See
Attach,
Petition
for
Writ
at 18.
36
of
Habeas
Corpus,
Randall,
Counsel
explains
that
testify with respect
Richmond
at
the
testified that
Williams's
Chamblis
house
of
the
received a
and
available
to Randall's alibi
time
she
was
that
could
have
she
came
over
to
While counsel anticipated
calling Chamblis as an alibi witness,
the
in
from Randall while at
called,
Whitcomb Court to meet with Randall.
to
Chamblis
phone call
he
scheduled
that he was
defense
shooting.
after
and
Randall,
last-minute decision for Chamblis not
not counsel,
to
testify.
made
Counsel
explains:
I
personally believe the main problem with
defense
is
that
he
instructed me
not
to
[Randall's]
call
the
alibi
witness.
I provided notice of an alibi defense.
I
advised the jury in my opening statement that Jamila
Chamblis would be
an alibi
witness,
and
I
fully
intended to call her.
Right before I was going to
call her,
Mr.
to call Ms.
Randall
Chamblis
told me
as
a
that he did not want me
witness.
I
told him that we
had already informed the jury that she would be a
witness,
she was a vital part of our case, and I
thought we should call her.
I added that he is the
one going to jail, if we lose, so I left that decision
up to him.
He
signed a
statement indicating that he
did not want me to call her as a
witness.
Mr. Randall indicated that he had spoken to Ms.
Chamblis from a jail telephone, and he thought the
conversation was recorded.
During the phone call, he
was trying to get Ms. Chamblis to contact witnesses
for
an
an
alibi
alibi
wrong date
the
defense.
for
a
for
He
l a t e r learned
different
date,
the murder.
Commonwealth had
Mr.
recorded his
that
because
Randall
he
he
needed
had
thought
efforts
to
the
that
establish
the first alibi, and i t would look like he was making
up the fact that Ms. Chamblis was his actual alibi.
(Johnson Aff.
H 4.19
on
for
the
Motion
lawyer not
(spelling corrected).)
New Trial,
Randall
admitted
to put Chamblis on the stand,
37
During the hearing
that
stating:
he
told his
" [A]
large
part
of
why
because
I
did
those
testimony,
phone
put
Jamila
records
and
I
have
(Oct. 4, 2006 Tr. 17.)^°
have
on
the
shown
stand
that
in
is
her
that basically if they relied on
[of Ethel Braxton]
would
Chamblis
would
as well as my own,
the phone records
Chamblis
not
looked
over our testimony,
like
two
liars
on
the
Jamila
stand."
The Circuit Court aptly surmised:
[Y]ou told your lawyer not to put Ms.
Chamblis on the
stand and now you feel you made a choice you wish you
hadn't made and you wish you had put her on the stand.
That's not a basis for a new trial just because
you now wish you had done a different issue and trial
strategy and your lawyer followed through with that.
(Oct.
4,
testified
2006
to
Tr.
18.)
that
When
would
asked
have
what
changed
Chamblis
the
would
jury's
have
decision,
Randall explained:
Ms.
Chamblis
her from Ms.
records
of
could have
testified
Williams'
that.
that
I
had
telephone that day.
She
also
could
have
contacted
There are
testified
that
Ms. Williams is the one that brought me to her house
at approximately 10:00 that same night, which would
have not given me time to be able to be in West Point
at
that
time
and
at
Jamila's Chamblis's
house
at
10:00
p.m.
(Oct.
the
4,
2006 Tr.
Circuit
Court
18-19.)
In denying Randall's pro se motions,
explained
that
this
evidence,
evidence,
"is not newly discovered evidence.
want[ing]
to try the case all over again.
This is
other
just you
It's like it doesn't
As
previously
discussed,
the
call
Braxton's phone reflected more calls between
Chamblis's number, than Chamblis's phone log.
38
amongst
log
from
Ethel
that number and
work
out
{Oct.
4,
at
first,
2006 Tr.
Randall's
main
alibi
so
failure
and
try
some
new
things."
to produce any sworn testimony from his
witness
Randall's
back
23.)
at
collateral proceedings
of
let's
alibi
any
point
during
his
criminal
significantly undermines
defense
that
he
was
in
the
and
credibility
Richmond
at
the
time
of the shooting and not in West Point.
After
considering
demonstrate
than
not
guilty
beyond
exists.
of
no
a
reasonable
reasonable
omitted).
juror
would
doubt.'"
Compelling
Randall
"'it
is more
have
Sharpe,
evidence
found
593
of
fails
to
likely
[Randall]
F.3d
at
Randall's
377
guilt
Four witnesses placed Randall in West Point with Moody
shooting
Berkley,
evidence,
new evidence
and Crump around the time of
the
the
that based on his
that
(citation
all
stated
that
he
knew
shooter
not
Eric
Commonwealth's witnesses and found their testimony credible,
and
Randall's
the
his
concludes
actual
about
Randall
innocence
to
jury heard the
was
the
testimony
The
the
The only witness to
testimony of
Court
but was Randall.
the murder.
his
alibi,
fails
to make
excuse
the
incredible.
a
sufficient
untimeliness
of
Thus,
showing of
his
§
2254
Petition.
IV.
The
Randall's
Motion
§
2254
to
CONCLUSION
Dismiss
Petition will
(ECF
No.
be
denied
39
13)
and
will
the
be
granted.
action will
be
dismissed.
§
2254
An appeal may not be taken from the final order in a
proceeding
appealability
("COA").
not issue unless a
denial
This
of
a
a
debate
judge
28 U.S.C.
prisoner makes
constitutional
requirement
could
unless
is
(or,
certificate
of
A COA will
"a substantial showing of the
28
only
for
a
§ 2253(c)(1)(A).
right."
satisfied
whether
issues
U.S.C,
when
that
§ 2253(c)(2).
"reasonable
matter,
agree
jurists
that)
the
petition should have been resolved in a different manner or that
the
issues presented were
proceed further.'"
'adequate to deserve encouragement to
Slack v.
(quoting Barefoot v.
McDaniel,
Estelle,
463 U.S.
529 U.S.
880,
473,
484
893 & n.4
(2000)
(1983)).
No law or evidence suggests that Randall is entitled to further
consideration in this matter.
The
Clerk
is
directed
A COA will
to
send
a
therefore be denied.
copy
of
this
Memorandum
Opinion to Randall and counsel for Respondent.
It
is
so ORDERED.
/s/
^
Date:
^
Robert E. Payne
Senior Ifcdted States District Judge
Richmond^ Virginia
40
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