Harbison v. Clarke
Filing
12
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/30/2015. (tjoh, )
IN THE UNITED
STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CHARLES C.
HARBISON,
Petitioner,
V.
Civil Action No.
3:14CV687
HAROLD CLARKE,
Respondent.
MEMORANDUM OPINION
Charles
C.
with counsel,
Harbison,
a
Virginia
was
the
Circuit
convicted
abduction,
the
Court
of
commission
the
County
a
felony.
Va. Code Ann.
murder
murder
statute
killing
arson,
§ 18.2-32.)
rape,
"'in
the
(West 2015).
§ 2254
of
William
Harbison
Bouchier,
and use of a firearm in
prosecution
in
charging
relied
and
upon
convicting
Indictment at 1, Commonwealth
18,
2002)
(citing
A defendant is guilty of first degree
of
the
commission
forcible sodomy,
robbery,
U.S.C.
Chesterfield,
(Va. Cir. Ct. Mar.
section 18.2-32
occurs
penetration,
18.2-32
CR02F00428-03
under
murder
The
Harbison of first degree murder.
V. Harbison,
of
conspiracy to rob,
of
felony
for
proceeding
Following a guilty plea in 2002
first-degree
robbery,
Virginia's
prisoner
brings this petition pursuant to 28
(''§ 2254 Petition," ECF No. 1).
in
state
Virginia
of,
or
Code
attempt
where
to
the
commit,
inanimate or animate object sexual
burglary or abduction."
Va.
Code Ann.
''The felony murder statute applies
§
'where
the initial felony and the homicide were parts of one continuous
transaction,
and
causal
and were
connection.'"
111,
123
(Va.
477,
482
(1978)).
in
closely related in point
criminal
2011)
Turner
v.
of time,
Commonwealth,
(quoting Haskell v.
Commonwealth,
place,
717
S.E.2d
243 S.E.2d
Furthermore, where two or more parties engage
concert
of
action,
one
who
participates
in
the
initial robbery giving rise to the homicide may be found guilty
of murder whether or not
lethal
828
stroke.
See
(Va. 1991)
he was
Rollston
the
v.
one who
actually dealt
Commonwealth,
399
S.E.2d
the
823,
(recognizing the application of concert of action
in felony murder cases).
Respondent moves to dismiss, inter alia, on the ground that
the
one-year
statute
of
limitations
petitions bars the § 2254 Petition.
governing
federal
habeas
Harbison concedes that his
petition is untimely under the statute of limitations governing
28 U.S.C.
§ 2254 petitions.
Harbison asserts
that
(§2254
Pet.
10.)
Nevertheless,
the Court can examine the merits of his
claims because he is actually innocent of the crimes to which he
pled guilty.
(2013)
See McQuiqqin v.
(''Actual
innocence,
Perkins,
133 S.
Ct.
proved,
serves
as
if
1924, 1928
a
gateway
through which a petitioner may pass whether the impediment is a
procedural
bar
limitations.")
.
For
.
.
the
[or]
expiration
reasons
set
of
forth
the
below,
statute
the
of
Court
rejects
Harbison's
Motion to Dismiss
assertion of actual
(ECF No.
I.
On
October
4).
2002,
(Oct.
Harbison
22,
2002
pled
Tr.
guilty
9-12.)
Pleas
Harbison,
filed
Prior
to
Sentencing
at
to
29,
2003) .
That
same
1-2,
day,
charges
29,
2003,
Motion to Withdraw
Commonwealth
Nos. CR02F00428-01 through CR02F00428-06
May
the
On May
Harbison moved to withdraw his guilty pleas.
Guilty
the
PERTINENT PROCEDURAL HISTORY
22,
discussed above.
innocence and grants
v.
(Va. Cir. Ct.
Harbison
withdrew
his
Motion to Withdraw Guilty Pleas and the Circuit Court sentenced
Harbison to an active term of imprisonment of forty-three
years.
(May 29, 2003 Tr. 3, 15-16.)
Thereafter,
Harbison,
with
new
Motion to Withdraw his Guilty Plea.
Plea
(43)
at
1-11,
Commonwealth
through CRF0200428-06
October
27,
2003,
(Va.
the
v.
counsel,
Ct.
Circuit
another
Motion to Withdraw Guilty
Harbison,
Cir.
filed
Nos. CR02F00428-01
filed Aug.
Court
2003).
On
the
denied
4,
Motion
to
Withdraw the Guilty Plea because too much time had passed and it
lacked jurisdiction.
(Oct. 27,
2003 Tr. 11-12.)
Harbison did
not file an appeal.
On or
about
May
14,
2004,
Harbison
filed
writ of habeas corpus with the Circuit Court.
23, at 1, ECF No. 1-26.)
denied
the
petition.
On March 21, 2005,
(Id.
Ex.
24,
at
2,
a
petition
for
(§ 2254 Pet. Ex.
the Circuit Court
ECF No.
1-27.)
Harbison
appealed.
The
Harbison's petition for
Supreme
appeal.
Court
(Id.
of
25,
Ex.
Virginia
at
1,
refused
ECF No.
1-
28. )
On
October
8,
2014,
Harbison
filed
his
present
§
2254
Petition.
II.
''Claims
freestanding
(1993),
see
of
actual
ones,
see
or merely as
Schlup
v.
1998)
INNOCENCE STANDARD
innocence,
Herrera
v.
whether
Collins,
506
gateways to excuse a
Delo,
granted casually."
Cir.
ACTUAL
513
U.S.
298,
317
Wilson v. Greene,
(parallel
citations
presented
U.S.
as
390,
417
procedural default,
(1995),
should
155 F. 3d 396,
omitted).
Here,
not
404
the
be
(4th
Court
reviews Harbison's assertion of innocence under the more lenient
standard for gateway claims because Harbison's actual innocence
claim would
allow
barred claims.
the
Court
McQuiqqin v.
to
consider
Perkins,
his
133
S.
otherwise
Ct.
1924,
time1928
(2013) .
A gateway claim requires ''new reliable evidence—whether it
be
exculpatory
accounts,
at trial."
scientific
evidence,
trustworthy
eyewitness
or critical physical evidence-that was not presented
Schlup,
513 U.S. at 324.
"Because such evidence is
obviously unavailable in the vast majority of cases, claims of
actual innocence are rarely successful."
Id.
If
a
reliable
'"•^all
petitioner meets
evidence
of
the evidence,'
his
the
burden
innocence,
old and new,
of
producing
the
Court
new,
then
truly
considers
incriminating and exculpatory,
without regard to whether it would necessarily be admitted under
^rules
of
admissibility
determines
whether
the
that
petitioner
gateway claim of innocence.
(2006)
(quoting Schlup,
determine
''whether
reasonable
2010)
govern
has
met
House v.
513
'it
U.S.
is
at
at
the
trial'"
standard
Bell,
547 U.S.
327-28).
The
than
and
for
518,
a
538
Court must
more
likely
found
juror would have
reasonable doubt.'"
would
not
that
petitioner guilty beyond a
Sharpe v. Bell, 593 F.3d 372, 377
no
(4th Cir.
(quoting Schlup, 513 U.S. at 327-28).
It
reliable
is
doubtful
evidence
of
that
his
Harbison
innocence
has
to
produced
warrant
second step of the actual innocence inquiry.
any
going
truly
to
the
Nevertheless, as
explained below, when one considers all the evidence, old and
new, he fails to demonstrate that no reasonable juror would have
found him guilty beyond a reasonable doubt.
Ill.
ANALYSIS
A.
Preliminary Siimmary Of The Evidence Regarding
Harbison's Crimes
The
that
Commonwealth's
Brandi
Dalton
and
evidence
Chris
of
Harbison's
Harbison
devised
guilt
a
plan
reflected
to
lure
Billy Bouchier to Dalton's home and rob Bouchier of money and
drugs.
2001,
(Oct. 22, 2002 Tr. 29.)^
[Michael
Harbison,
Herbert
Dalton's
Skiles
1629-03-2,
2004) .
his
At
and
2004
another
WL
Dalton
from
the
Brooks
Gerald
home,
at
(Brooks),
Walker
which
woman."
1315323,
some point,
When
and
County
*1
(Va.
visited
she
Brooks
Charles
shared
v.
Ct.
Brandi
with
Commonwealth,
App.
June
15,
''Dalton contacted Bouchier by telephone
to lure him to her home."
away
sister Kia
Brown,
Chesterfield
Jennifer
No.
Brooks],
"On the evening of December 6,
Id.
announced
house,
Bouchier
[Michael
was
a
few
Brooks],
minutes
Harbison,
Brown, and Walker arose and walked down the hallway.
[Kia] Brooks went to the downstairs bathroom.
From
the bathroom. Brooks heard the front door open and
shut and the sound of footsteps going upstairs.
She
heard thumping, stomping, and a yell.
[Kia] Brooks
testified, ''All I heard was noise . . . other than Mr.
Bouchier's noise, nothing."
Eventually,
to the bathroom and took [Kia] Brooks
Dalton came
upstairs to
Dalton's bedroom.
[Kia] Brooks saw Bouchier lying face down on
Dalton's
bed
with
a
pillowcase
over
his
head.
Harbison was putting his weight on Bouchier to
restrain him.
Harbison kept asking Bouchier about
money and a code.
what they want
standing behind
picked
up
[Michael]
Dalton told Bouchier to "tell them
to know."
Harbison. At
Bouchier
and
[Michael Brooks]
was
one point,
Harbison
slammed
him
on
the
bed.
Brooks assisted by placing duct tape around
Bouchier's ankles.
Dalton said she wanted to get Bouchier out of the
house.
Harbison and Brown picked up Bouchier and took
him to
"for
the
a
hallway.
minute."
Bouchier stood beside
[Kia]
Brooks
saw
blood
Harbison
on
the
^ The summary of the evidence comes from the transcript of
Harbison's guilty plea and the Court of Appeals of Virginia's
summary of the evidence pertaining to the guilt of one of
Harbison's
codefendants,
Michael
Brooks.
The
Court
notes
that
the parties and the courts spell Dalton's first name as "Brandi"
or "Brandy."
pillowcase covering Bouchier's head although she saw
no blood in the hallway at that time.
[Kia]
Brooks
later
observed
Bouchier
being
""walked
down"
outside,
she
the
stairs.
When
[Michael]
Brooks
went
saw that Bouchier had been placed in the
hatchback area
of
[Michael
his
own car.
Brooks],
with
Harbison
and
Bouchier
as
passengers, drove Bouchier's car away from Dalton's
residence.
Brooks and Dalton followed in a separate
car as [Michael Brooks] led them to a remote site on
Duval
got
Road.
out
[Michael
of
Bouchier's
the
vehicles
car.
The
[Michael Brooks]
vehicle she was
Brooks
then
Bouchier's
pistol.
quickly
Dalton
and
Harbison,
of
and
shoot
beside
car
was
open.
to position the
the exit
route.
walk
Bouchier
Dalton
the
instructed Brooks
driving to face
Dalton
and
together
stood
hatchback
observed
car
Brooks],
to
five
the
rear
times
with
of
a
[Michael Brooks],
Harbison,
and Dalton
entered Brooks'
vehicle.
Harbison asked
if
she
was
sure
Bouchier
was
dead.
Dalton
said, ""He squirmed like a worm."
[Michael
commented, ""I didn't think you would do it."
[Kia]
Brooks
drove
residence.
Dalton
and
the
group
Harbison
Brooks]
to
Dalton's
cleaned
Dalton's
bedroom and the upstairs of the house.
They removed
Dalton's bedding, the hallway blinds, and a carpet and
placed the items in trash bags.
They took the bags to
Harbison's home,
and Harbison subsequently burned
them.
[Kia] Brooks dropped off [Michael Brooks] at
the home of his girlfriend.
Earlier
that
with the group,
remained
there
evening,
after
smoking
marijuana
Skiles had gone to her bedroom and
with
the
door
closed.
At
one
point,
she heard thumping, looked out the door, and saw
Walker entering Dalton's bedroom.
Later that night,
after the rest of the group had left the house, Skiles
saw blood on Dalton's bedroom door, the bathroom door,
the closet doors, walls, a clothes hamper, blinds, and
carpeting.
Bouchier's dead body was found in the rear of his
vehicle the following day at the site on Duval Road.
Bouchier
had
been
shot
five
times,
each
of
them
a
lethal wound.
Three of the wounds were to the right
side of the head.
The other two gunshot wounds were
to the chest and abdomen.
When the body was found,
Bouchier's head was
covered with a pillowcase that had two bullet holes in
it.
The
pillowcase
Bouchier's
was
mouth.
secured with
Around
duct
Bouchier's
tape
above
and
under
head
his body was a sheet with one bullet hole in it.
What
appeared to be spots of blood were on Bouchier's pants
and
socks.
The
three
medical
head
examiner
wounds
would
opined
have
that
each
''result [ed]
in
of
the
instant
fatality,
instant
incapacitation."
Had
Bouchier
received any of these wounds while inside the house,
he
would
have
been
unable
to
walk.
The
medical
examiner further opined that if Bouchier had been shot
in
the
chest
inside
the
house,
he
''would
have
been
able to stand for only a very short time."
Bouchier
also had suffered a number of superficial blunt force
injuries,
none
of
which
would
have
produced
significant bleeding or contributed to his death.
(Id.
at *1-2.)
B.
Harbison's Theory Of His Innocence
Harbison
asserts
that
the
sum
of
old
and
new
evidence
reflects that:
. . . Bouchier was shot behind the ear and killed in
Brandi Dalton's room before the pillowcase was taped
over his head and before he was removed from Brandi
Dalton's room, and that Harbison was not present when
this occurred. The evidence specifically shows the
following.
Kia
Brooks
picked up
Brandi Dalton's house.
Harbison
and
took him to
Harbison left at around 9 p.m.
when Anthony Adkins picked him up to take him to Torei
Rock's
around
house.
After staying at Torei Rock's for
an hour,
Harbison was again picked up by
Anthony Adkins and driven back to Brandi Dalton's
house.
They stopped at a gas station on the way and
were seen by Amber Miles.
Sometime after Harbison
arrived
back
at
Brandi
Dalton's
house,
he
went
upstairs and found Brandi Dalton, Michael Brooks and
Jerald
Walker
in
the
bedroom
with
Bouchier's
dead
body.
At this point, in some misguided devotion to
Brandi Dalton, Harbison helped wrap Bouchier's body
up.
{§ 2254 Pet.
22.)
In
inter
support
alia,
Brooks,
C.
{§ 2254
the
foregoing
statements
Kia Brooks,
of Michael
In
of
Brooks
from
theory,
himself,
and Brandi
affidavit,
Pet.
contains
no
eyewitness
supports
Ex.
2,
Harbison
at
accounts,
Dalton,
upon,
Michael
from the trials
Innocence
explains
1-3.)
or
why
Harbison's
scientific
critical
innocence.
relies
Dalton.
''exculpatory
his
Brandi
and snippets of the records
Harbison's Evidence Of His
his
Harbison
Schlup v.
he
pled
affidavit,
evidence,
physical
Delo,
guilty.
however,
trustworthy
evidence"
513
U.S.
298,
that
324
(1995).
1.
Harbison's Evidence To Support An Alternative
Scenario Of Bouchier's Murder
First,
Harbison
tenders
a
notarized
letter
from
Michael
Brooks, dated June 10, 2004, wherein Michael Brooks asserts that
he wishes
to
reveal
''the
full
night of Bouchier's murder.
No. 1-10.)^
truth"
(§ 2254 Pet.
Ex.
7,
at 1,
ECF
(Id. at 2.)
Michael Brooks asserts that,
2001,
happened on the
Michael Brooks asserts that he is "tired of covering
for" his sister, Kia Brooks.
6,
of what
around,
6:30 p.m.
on December
he and his sister "Kia picked Chris up" and went to
Brandi's house.
(Id.
about 6:45 p.m.
(Id. )
at 3.)
Herb
They arrived at Brandi's house at
Brown and Gerald Walker arrived
^ The Court corrects the capitalization in the quotation to
the parties' submissions.
around
left
7:45
p.m.
Brandi's
going
to
(Id.)
house
look
for
at
Michael
about
marijuana.
Bouchier arrived and Brandi
Brooks
9:00
(Id.
p.m.
at
claims
and
4.)
that
said
10:30 or
loud
pop."
so,
(Id.
Brooks was
at
5.)
(Id.
''startled by what
Brandi
then
came
he
10:00
(Id.)
Brooks stayed downstairs and listened to music.
About
that
Around
took him upstairs.
Harbison
was
p.m.,
Michael
at
4-5.)
sounded like a
''racing
down
the
stairs with a gun in her hand screaming" for Brooks to help her.
(Id. at 5.)
Brooks then followed Brandi upstairs because he was
afraid she would shoot him.
(Id.
Upon arriving upstairs,
Michael
wrapping up Bouchier in a sheet.
to be
dead.
(Id.)
burst
into the room . . .
hell had went on
"It was
at 5-6.)
saw
(Id. at 6.)
about
and asked
in here."
Brooks
(I^)
this
time
[Michael
Gerald Walker
Bouchier appeared
that
Brooks]
[Harbison]
what
the
Brandi then told Michael
Brooks and Harbison they had to help get Bouchier's body out of
the house.
(Id. at 6-7.)
Michael Brooks claims that he helped
dispose of Bouchier's body because he feared Brandi might shoot
him or his sister.
Michael
Brooks
Bouchier's body,
(Id.
at
(Id.
at 7-8.)
asserts
Brandi
that
right
before
they
dumped
Dalton shot Bouchier four more times.
9.)
10
2.
Harbison's Evidence To Support An Alibi
Anthony
Adkins
assertion
that
he
Bouchier,
and
provides
was
only
absent
arrived
Bouchier had been killed.
After
I
ran
around
6:00
ride.
He said,
p.m.
some
support
during
at
the
Brandi
for
Harbison's
actual
murder
Dalton's
home
after
Specifically, Adkins swears:
some
errands,
I
called
and asked him if he
''Yes," but told me he [
Charles
still
]
needed
at
a
would be at a
friend's house and asked me to pick him up from there.
Charles then gave me directions to where he would be.
I
told him I
A
would be there around 9:00 p.m.
little
after
9:00
p.m.,
I
picked
Charles
from the neighborhood he gave me directions to,
up
which
was across the street from Salem Church Middle School.
Charles met me on a road in the neighborhood, he was
by himself.
Charles told me he needed to go to a friend's
house whose name is Torei, and that he needed to be
dropped off there.
He then told me that he needed to
be picked back up in an hour.
I dropped him off at a
house off of Lucks Lane, and I went to Hooters to get
something to eat.
I returned to the same house to pick Charles up
about
an
hour
and
a
half
later.
stop and buy some cigarettes.
Charles
wanted
to
So, we stopped at a gas
station on the corner of Lucks Lane and Courthouse
Road.
From there I drove him back to the neighborhood
I originally picked him up from.
would call me the next day,
out days
Charles told me he
but never did.
I
found
later that he and others had been arrested
for murder.
At no time had any attorney or representative of
Charles Christopher Harbison ever contacted me prior
to his trial to ask me about any information I had in
reference to the events that took place on December 6,
2001.
But
had
they
contacted me,
I
would have
testified to what I
have submitted in this affidavit.
11
of
{§
2254
Pet.
Ex.
10,
at
1
(punctuation
and
spacing
corrected)
(paragraph numbers omitted), ECF No. 1-13.)^
Torei
was
at
Rock
Rock's
Specifically,
corroborates
home
Rock
on
swears
Adkins's
the
assertion
evening
that
around
of
9:15
that
December
p.m.
on
Harbison
6,
2001.
December
6,
2001,
Chris came to my house. I'm not sure who took him to
my house.
We sat around and talked and had a few
beers.
Chris said he couldn't find any marijuana at
Brandi's house, but that he was going back to Brandi's
and maybe he could find some later.
Chris stayed at
my house for an hour and a half, maybe two hours.
Chris's ride beeped the horn to let Chris know he was
outside, and Chris left.
It was dark, but from the
window, I could see Chris get into the car.
I did not
hear from Chris again that night.
(Id. Ex. 11, at 1, ECF No. 1-14.)
3.
Forensic Evidence
Jennifer Skiles,
Karen Jones and Kia Brooks all testified
to seeing a large amount of blood in the bedroom at Brandi
Dalton's house.
Brandi
(See,
Dalton's
e.g.
trial,
ECF No.
the
1-32,
at
prosecution
entered
of
stipulation acknowledging
that,
'Mt]he
time
victim
'Mt]he
blunt
force
is
unknown"
and,
29-30.)
death
trauma,
During
into
a
of the
beating,
[and] injuries [Bouchier sustained] are not consistent with any
substantial loss of blood."
1-16.)
(§ 2254 Pet.
Ex.
13,
at 1,
ECF No.
The stipulation further provided that Bouchier sustained
^ Amber Miles
swears that
she saw Adkins
and Harbison at
a
service station, sometime after dark on the night of December 6,
2001.
(§ 2254 Pet. Ex. 12, at 1, ECF No. 1-15)
12
five
(5)
wounds
gunshot wounds and that 'Ma]ny one of the five gunshot
or
(Id.)
all
five
could
have
been
inflicted
The stipulation also stated that,
been
able
sustained
to
stand
was
the
on
his
gunshot
own
wound
only
to
the
in
the
house."
''the victim would have
if
the
only
heart.
He
wound
would
been able to stand for only a very short period of time."
he
have
(Id.)^
Harbison suggests that this evidence tends to indicate that
Brandi
Dalton killed Bouchier in her home and is consistent with
Harbison's
home,
current
Bouchier
story
already
that,
was
when
dead.
he
reappeared
Harbison
at
has
Dalton's
produced
unsworn letter from Kia Brooks wherein she states that
''believe [s]
[Bouchier] was shot inside the house .
No. 10-2, at 1.)
.
an
she now
. ."
(ECF
Kia further states she is now more familiar
with sound of gunshots and that the thud she heard the night of
the murder might have been a gunshot.
(Id.)
She also states
she stuck to her initial testimony because of pressure from the
prosecutor.
that
(I^)
Harbison
carried
Additionally, Kia states that when she swore
took
Bouchier
Bouchier's
Bouchier
down
downstairs,
the
stairs,
autopsy
report
she
because
reflects
meant
she
that
Bouchier's socks are stained with spots of blood.
Ex. 15, at 1, ECF No. 1-18.)
13
now
Harbison
believes
soles
of
{§ 2254 Pet.
Bouchier ''died at the top of the stairs or a
4.
Brand! Dalton's Statement Regarding The Murder
Harbison also has produced a
Brandi
Dalton
(§ 2254
Pet.
to advance
tells
little ways down."
made
Ex.
to
31,
Harbison's
Harbison's
ECF No.
Harbison's
recording of a phone call that
1-34.)
claim of
father
that
shot Bouchier at her home.
father
The
from
(Id.
at 5
in
recording does
innocence.
Michael
jail
In
Brooks,
that
call,
rather
2002.
little
Brandi
than
she,
(as paginated by CM/ECF. )
While attempting to comfort Harbison's father about Harbison's
minor
role
in
the
crime,
she
acknowledges
that
Harbison
was
present in the home when Gerald Walker beat up Bouchier and
attempted to rob him.
D.
(Id. at 7.)
Additional Evidence Of Harbison's Guilt
While some confusion exists about when Bouchier was first
shot
and
evidence
who
pulled
overwhelmingly
the
trigger,
demonstrates
as
explained
that
Brandi
below,
the
Dalton
and
Harbison participated in the plan to rob Bouchier and Bouchier's
murder was the product of that plan.
^ Harbison also has submitted affidavits from his mother and
father wherein they swear that Kia Brooks testified falsely at
Harbison's preliminary hearing when she testified that she did
not pick Harbison up at their home on December 6, 2001.
(See
§ 2254 Pet. Exs. 8-9, ECF Nos. 1-11, 1-12.)
14
1.
Harbison's
Although
Brandi's
of
any
facts
house
plan
that
murder,
Harbison
moments
to
he
rob
first
I n i t i a l Statement To The Police
now
suggests
after
that
Bouchier was
Bouchier,
told the
that
is
police.
he
reappeared
killed
not
and was
the
He
of
the
Shortly after Bouchier's
(Dec.
19,
1.)
said
that
Harbison
told the
police
that
Dalton's house at 6:00 p.m. on December 6, 2001.
Tr.
unaware
version
the Chesterfield Police interviewed Harbison.
2001 Tr.
at
50.)
he
arrived
at
(Dec. 19, 2001
By 9:00 p.m., Brandi had called Bouchier and several
other men already had arrived at the house.
(Dec. 19, 2001 Tr.
53-57.)
Bouchier arrived between 9:00 and 9:30 p.m.
and went
upstairs
with
Harbison
Brandi.
(Dec.
19,
2001
Tr.
admitted that when Bouchier went upstairs,
were going to rob [Bouchier]."
After
Bouchier
went
Harbison ''knew they
(Dec. 19, 2001 Tr. 58.)
upstairs,
yelling, so he went upstairs.
57.)
Harbison
heard
(Dec. 19, 2001 Tr. 63.)
Brandi
Harbison
went upstairs and found two men holding Bouchier down on the bed
while Brandi and another man looked on.
Harbison
claimed
that
it
was
(Dec. 19, 2001 Tr. 63.)
difficult
to
identify
the
men
because they had covered their faces with shirts from Brandi's
closet.
struck
(Dec. 19, 2001 Tr. 64.)
Bouchier
in
the
face
Harbison looked on as the men
with
a
gun
and
demanded
Bouchier tell them where the marijuana was located.
15
(Dec.
that
19,
2001 Tr.
(Dec.
65.)
19,
Bouchier was alive and talking to his assailants.
2001
Tr.
67.)
the house.
(Dec.
Bouchier
still
68,
was
19,
2001 Tr.
alive
when
67-68.)
he
downstairs
and left
According to Harbison,
left.
(Dec.
19,
2001
Tr.
67-
75.)
The next morning,
she
Harbison then went
had
shot
Brandi called Harbison and told him that
Bouchier.
asserted that he
felt
(Dec.
19,
guilty for not
individuals from hurting Bouchier.
2.
Kia
Brown,
Tr.
74.)
Harbison
trying to stop the other
(Dec. 19, 2001 Tr. 85.)
Kia Brooks's Testimony
Brooks
Jay
2001
('^Kia")
Walker,
testified
Michael
at
Brooks,
trial
that
Brandi
she,
Dalton,
Herbert
Dalton's
female roommate and Chris Harbison were at Brandi Dalton's home
on December 6, 2001.
8.)
(§ 2254 Pet. Ex. 5, at 20-22, ECF No. 1-
Brandi mentioned that Bouchier was going out of town and
would likely possess a large sum of money and drugs.
23.)
(Id. at
Harbison came up with a plan whereby Brandi Dalton would
lead Bouchier upstairs while the men would hide in the closet.
(Id.
at
upstairs,
23-24.)
Harbison explained that,
once Bouchier was
the men would jump out and place a pillow case over
Bouchier's head.
(Id.
at 24-25.)
Thereafter, Brandi called Bouchier and told the others that
Bouchier was
on his
way over.
(Id.
at
29.)
Brown,
Michael Brooks, Harbison, and Brandi went upstairs.
16
Walker,
(Id. at 29-
30.)
Kia went
(Id.
at
pain.
30.)
(Id.
into the downstairs bathroom and closed the door.
Kia
at
Kia upstairs.
then
31.)
heard
Next,
a
thud
Brandi
and
came
Bouchier
yell
downstairs
out
in
and brought
(Id.)
Upstairs,
Bouchier
was
lying
face
down
on
the
bed with
a
pillow case over his head and duct tape around his neck.
(Id. )
Bouchier's
down.
(Id.
at
hands
were
31-32.)
tied
and
Harbison
Harbison
demanded
to
was
holding
know
where
money was and slammed Bouchier into the bed.
then
tied
Bouchier's
ankles.
(Id.
at
to move Bouchier out of the house.
34.)
him
Bouchier's
(Id. at 33.)
The
parties
Kia
agreed
(Id.)
Harbison then lifted Bouchier up out of the bed and moved
Bouchier
to
the
landing
2002 Tr.
128-29.)
above
the
Bouchier stood,
stairs.
(Dalton
swaying back and forth,
a bloody pillowcase wrapped around his head.
2002
Tr.
128.)
Bouchier
said
(Dalton Sept. 10, 2002 Tr. 129.)
down the stairs.
of
the
house,
[Bouchier's] car."
Michael
that
he
did
Brooks
10,
with
(Dalton Sept. 10,
not
feel
well.
Harbison then walked Bouchier
(Dalton Sept. 10, 2002 Tr. 129.)
Harbison
Sept.
''walked Mr.
Bouchier
to
Once outside
the
trunk
of
(Dalton Sept. 10, 2002 Tr. 131.)
drove
Bouchier's
car
trunk and Harbison in the passenger seat.
with
Bouchier
(ECF No.
in
the
1-8, at 35.)
Brown and Walker followed in Walker's vehicle and Brandi and Kia
followed
in
Kia's
car.
(Id.
at
17
36.)
Eventually,
Brown
and
Walker went their own way,
Duval
Road.
(Id.
at
while the remaining parties drove to
36-37.)
At
Duval
Road,
Michael
Walker,
Brandi
Brandi and Harbison got out of their cars.
(Id.
at 37.)
then
car,
leaned
went
around
to
shot the gun once.
more times.
back
(Id.
of
Bouchier's
at 38.)
Brandi paused,
in,
Harbison,
away.
then shot four
and Michael Brooks got into Kia's car and
(Id.)
Bouchier was dead.
Harbison
(Id. )
asked
Brandi
if
she
was
Harbison,
Brandi's
house
Michael
and
3.
Brooks
began
Bouchier's blood on it.
sure
''Brandi said that when she shot him,
he jerked like a worm and she was sure that he was dead."
Brandi,
and
(Id.)
Brandi,
drove
the
to
(Id.
and
clean
Kia
Brooks
went
up
everything
(Id.)
back to
that
had
at 40.)
Karen Jones
The record shows that Karen Jones was Brandi's neighbor and
friend.
(Dalton Sept.
10, 2002 Tr. 77.)
On December 6,
2001,
Brandi told Jones that Bouchier was coming over to Brandi's home
and that Harbison and Michael Brooks were going to ''beat him up
and
rob
Jones
him."
was
Bouchier,
not
(Dalton
at
the
Sept.
house
10,
at
2002
the
time
Brandi later told Jones that
(Dalton Sept. 10, 2002 Tr. 86.)
18
Tr.
78-80.)
of
the
Although
assault
on
she had shot Bouchier.
4.
While
Brooks
Cardell Banks
incarcerated in the
told
Brandi's
fellow
house.^
Specifically,
hid in a
over
$900
closet,
Brooks
and
Michael
2002
Tr.
related
that
jumped out
{Dalton
the
and
him.
the
Sept.
(Dalton
white
he
Michael
then
Brooks
E.
At
of
448.)
male
pillow case
Tr.
11,
2002
loaded
445-46.)
and
the
Tr.
446.)
Bouchier
and Michael Brooks shot Bouchier.
447.)
445-46.)
white
a
2002
agreed to say that Brandi had shot Bouchier.
2002 Tr.
a
at
Bouchier and took between
Sept.
male
and
Michael
occurred
Tr.
taped
11,
Jail,
had
2002
and duct
white male beat
from
Bouchier's car,
11,
Brooks
what
11,
then
and
Brooks
Banks,
Sept.
head.
$1,200
Cardell
Regional
(Dalton
Michael
Bouchier's
Michael
inmate,
Riverside
into
(Dalton Sept.
white
male
then
(Dalton Sept. 11,
Harbison is a white male.
Evaluation Of All Of The Evidence
the
Michael
outset,
Brooks
the
and
Court
Kia
^ At Brandi's bench
Brandi's Dalton's private
conversation
which
trial.
Banks
investigator.
attempt
statements
to
exculpate
denied ever telling
Jack Davis, about a
The
the
(Dalton
stated
of
his
Sept.
that
conversation
the
11,
it
statement
2002
Tr.
would
not
Brooks
recent
murder of Bouchier.
(Dalton Sept. 11, 2002 Tr. 428-30.)
Circuit Court then permitted Jack Davis to testify as to
''that
with
the
and
content
had
Brooks,
that
robbery
noted,
Banks
notes
with
can
come
443.)
regarding
Banks.
in,
The
but
Rather,
''consider
the
the
Circuit
not
as
the
Circuit
evidence
Court
evidence."
of
Court
such
inconsistent
statements
except
for
the
limited
purpose
of
contradicting the witness,
the witness being
[Mr.
Banks]."
(Dalton Sept. 11, 2002 Tr. 442-43; see Tr. 445)
19
Harbison,
are quite suspect.
(TSE/IDD),
2015
(observing
WL
that
See Mabry v.
3545924,
at
*6
post-conviction
Clarke,
(E.D.
Va.
No.
I:14cv453
June
statements
3,
by
made
2015)
other
participants in the crime generally fail to constitute reliable
evidence of innocence
HEH,
Kia
(citing Carter v.
2010 WL 331758,
nor
Michael
at
*6
Brooks
(E.D.
Va.
adequately
Virginia,
Jan.
26,
explained
No.
3:09cvl21-
2010)).
why
it
Neither
took
them
years to come forward with their present accounts of the robbery
and
the
murder
Ct.
1924,
evidence
made
1935
bears
the
Michael
of
Bouchier.
(2013)
on
the
requisite
Brooks's
attempt
role
for
to
fails
Scott,
28
F.3d
innocence
claim
delay
determination whether
showing
crimes
McQuiqgin
(''Unexplained
weight because he
in the
See
460,
[of
v.
Perkins,
S.
in
presenting
new
the
petitioner
has
innocence].").
exculpate
133
Harbison
Furthermore,
carries
little
to accept any responsibility for his
which he
463
stands
(5th
predicated
Cir.
on
convicted.
1994)
See
Drew v.
(rejecting
co-defendant's
actual
statements
made
after he had nothing to lose by exculpating defendant).
The
uncontested
participated
house
with
Harbison's
Torei
in
Dalton's
driving
Bouchier
innocence
Rock which
home
at
evidence
in
Bouchier's
the
is
suggest
about
demonstrates
the
trunk.
the
20
Brandi
Dalton's
from
The
strongest
Harbison
time
Harbison
car
statements
that
that
that
evidence
of
Anthony
was
absent
from Brandi
murder
and
the
Adkins
of
and
robbery
occurred.^
of
However, a reasonable juror examining the evolution
Harbison's
would
conclude
simply concocted the alibi to align with the
favorable
evidence
that
assertion
suggested
of
innocence
that
Bouchier
had
been
shot
that
he
forensic
at
least
once prior to being placed in the trunk of his vehicle.
For
example,
although
Harbison
now
asserts
actually innocent because he was not present at
when
Bouchier was
told the police.®
robbed and
killed,
that
is
not
that
he
is
Brandi's house
what
he
first
During his initial interview with the police,
The fact that Adkins appears to be a convicted felon does
not
help his
credibility.
courts/circuit/hampton
See http://www.courts.state.va.us/
(select
"Case
Status
and
Information;"
select ''Circuit Court" from drop-down menu; select hyperlink for
''Case Information"; select "Chesterfield Circuit" from drop-down
menu and follow "Begin" button; type "Adkins, Anthony," and then
follow "Search by Name" button; then follow hyperlinks for
"CR02F02210-03"
(last visited Aug. 17, 2015).
® Brandi Dalton also indicated to Harbison's father that his
son Charles Harbison was present in her house at the time of
robbery and murder. Furthermore, in his candid statement to the
probation office, Harbison admitted to being present for the
robbery.
In that statement, Harbison said:
"There was a plan to rob a person brought on by a
codefendant of mine.
To me and the rest of the
codefendant [s] that person told us about the person
witch [sic] would get robbed.
The person came over
then a codefendant said that everyone needed to leave
so when they stopped all of a sudden Miss Dalton shot
that person without telling them anything.
All I really have to say is that I was wrong and
I'm sorry very much about what happen.
It was a
stupid idea for me to stay for the robbery[,] but if I
had any idea that this kind of thing could have
happened I would have never stayed."
21
wherein Harbison is clearly attempting to deflect any guilt for
the
crimes,
during
Harbison,
planning
the
Bouchier.
nevertheless,
and
the
Harbison fails
admitted
execution
of
to
being
the
present
robbery
of
to offer any convincing explanation
as to why he would have told the police he was present at the
time
of
although
the
robbery
admittedly
if,
in
present
fact,
at
he
was
Brandi's
not.
home
Furthermore,
for
much
of
the
evening of December 6, 2001, Harbison's current version (that he
was
absent
during
murder occurred,
stretches
juror
to
the
critical window wherein
the
robbery and
but stuck around to dispose of Bouchier's body)
credulity.
conclude
Rather,
that
the
Harbison
removing Bouchier from Brandi's
record permits
actively
home
a
reasonable
participated
in
and in cleaning up the
scene of the robbery to cover up for his participation in the
crimes against Bouchier.
Kia Brooks's trial testimony that Harbison helped plan and
execute the robbery and the murder is consistent with the other
evidence.
For example,
the blood on the soles of Bouchier's
socks supports Kia Brooks's trial testimony that Harbison walked
Bouchier down the stairs after Bouchier had been attacked in the
bedroom.^
Post
Additionally,
Sentence
Report
Kia
at
Brooks's
12,
account
Harbison
v.
of
Harbison's
Commonwealth,
No. CR02F00428-01;-03-06 (Va. Cir. Ct. Feb. 5, 2003).
® Kia Brooks's current suggestion that Bouchier already was
dead when Harbison moved him down the stairs makes little sense
22
involvement
by
Karen
in
the
Jones.
Bouchier
was
planned
On
coming
robbery
December
over
to
her
Bouchier
2001,
6,
of
Brandi
home
and
is
told
Harbison
Brooks were going to ""beat him up and rob him."
10,
2002
Tr.
apparently
fact
the
78-80.)
unbiased
Harbison
witness
was
robbery of Bouchier.
201
{4th Cir.
felony
murder
2006)
the
an
unrebutted
offers
instigator
because
and
Michael
from
the
of
the
453 F.3d 195,
petitioner
innocence
was
an
for
perpetrator
Polk,
that
(Dalton Sept.
support
(rejecting claim of actual
participated in the
crime).
and
Jones
testimony
convincing
See Buckner v.
conviction
planned robbery,
conceal
This
corroborated
aware
200for
of
a
the
robbery,
and then helped
In evaluating Harbison's
current claim of
innocence, any reasonable juror would give substantial weight to
Harbison's prior sworn admissions that he was in fact guilty of
the crimes of which he now stands convicted.
to
recant
those
admissions,
no
reasonable
While he now seeks
juror
would
give
credence to his current assertion of innocence given all of the
evidence
officer
and
of
Harbison's
his
guilt.
candid
Given
statements
the
totality
to
of
the
probation
the
evidence,
Harbison failed to demonstrate that '''it is more likely than not
and is impossible to square with her prior sworn description of
the assault upon Bouchier and Bouchier's removal from Dalton's
home.
Cardell Banks's testimony also supports the conclusion
that Harbison actively participated in executing the plan to rob
Bouchier.
23
that
no
reasonable
beyond a
(4th
juror
would
reasonable doubt.'"
Cir.
2010)
(quoting
have
Sharpe v.
Schlup
v.
found
petitioner
Bell,
Delo,
593
513
U.S.
guilty
F.3d 372,
298,
377
327-28
(1995)) .
IV.
Accordingly,
will
be
granted.
action will
be
CONCLUSION
Respondent's
The
§
2254
dismissed.
Motion
to
Dismiss
Petition will
A certificate
of
be
(ECF
No.
4)
denied and the
appealability will
be denied.
The Clerk of the Court
is directed to
send a
copy of this
Memorandum Opinion to counsel of record.
It
is
so ORDERED.
Robert E.
/s/
Payne
Senior United States District Judge
Richmond, Virginia
Date: September 3*^ , 2015
24
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