Canady v. Kiser

Filing 25

MEMORANDUM OPINION. It is so ORDERERD. Signed by District Judge Robert E. Payne on 11/20/2015. Copy mailed to Petitioner. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division
MARLON CANADY,
Petitioner,

v.

Civil Action No. 3:15CV263

JEFFREY B. KISER,
Respondent.
MEMORANDUM OPINION
Marlon Canady,
se,

a

Virginia

state

brings this petition pursuant to 28

Petition,"
ground

ECF

that

federal

No.

the

habeas

responds that,

1) .

Respondent

one-year

petitions

bars

inter alia,

the

S. Ct. 1924, 1928 (2013)
a

is

a

of
§

to

statute of limitations.")

§

2254

2254

("§ 2254

dismiss

limitations
Petition.

on

the

governing
Canady

See McQuiggin v. Perkins, 133

("[A) ctual innocence,

procedural

proceeding pro

his actual innocence allows him to

gateway through which a

impediment

u.s.c.

moves

statute

avoid the statute of limitations.

as

prisoner,

if proved, serves

petitioner may pass

bar

[or]

whether the

expiration of

the

For the reasons set forth below,

the

Court rejects Canady's assertion of actual innocence and grants
the Motion to Dismiss (ECF No. 16).
I.
On December 13,
Williamsburg

2004,

(hereinafter,

EVIDENCE AT TRIAL
the

Circuit

Court

"Circuit Court") ,

for

in a

the

City of

bench trial,

tried Canady on ten counts of aggravated sexual battery and ten
counts of rape with respect to Canady's extended molestation of
his daughter.

(Dec. 13, 2004 Tr. 13.)

It is appropriate here to summarize the evidence presented
at trial to provide context to Canady's claims and the frivolous
nature of his assertions of innocence.
last

decade,

Canady

has

gathered

Specifically,
scraps

of

over the

miscellaneous

information that he contends reflect that his convictions were
the

product

of

a

vast

conspiracy

involving

workers, teachers, and the prosecutor.

his

wife,

social

Canady's contentions are

entirely unpersuasive.
Canady's
attention of

abuse
the

of

his

daughter,

authorities

Marissa, 1

when Marissa

came

dropped a

to
note

the
in

school.

Specifically, Lois Wine, a teacher at Norge Elementary

School,

testified

that

on

May

12,

2004,

the

school

was

conducting retesting of "any fourth graders that had not passed
the language arts or math section of the third-grade"
of learning test

("SOL") .

(Dec. 13, 2004 Tr.

21-23.)

standard
Because

Marissa did not need to retake the third-grade SOL tests,
was temporarily placed in Ms. Wine's classroom.
Tr.

22-23.)

After the testing,

that

had been dropped on the

note

1

a

Marissa died from cancer on October

at l.)
2

(Dec. 13, 2004

student brought Ms.
floor

at

she

Wine a

the

back of Ms.

s, 2008.

(Ex. 3 7 (A) ,

Wine's

classroom.

(Dec.

13,

2004

Tr.

23.)

In

the

note,

Marissa wrote about some things that her father was doing to her
(Dec. 13, 2004 Tr. 29-31.) 2

that made her feel sad.

Discovery

of the note led to social workers going to the school to talk to
Marissa.

(Dec. 13, 2004 Tr. 100.)

Marissa testified that when she was in the first grade her
father

began

"messing

with"

her.

(Dec.

13,

2004

Tr.

31.) 3

Initially, while they were in the living room, Canady would have
his daughter reach under his clothes and touch his penis.
13,

2004

Tr.

32.)

Sometime

later,

(Dec.

Canady began calling his

daughter to the bedroom and would touch her vaginal area.

(Dec.

13, 2004 Tr. 33.)
After Marissa

entered

"would stick his penis in
13, 2004 Tr. 33-34.)
to bleed.

(Dec.

13,

the

second or

third grade,

[her]

vaginical

[sic]

areas."

35- 36 . }

(Dec.

Marissa said it was painful and caused her
2004 Tr.

34.)

Additionally,

would make Marissa rub his penis until he ejaculated.
2 0 0 4 Tr .

Canady

Marissa testified that,

Canady also
(Dec. 13,

since she was in the

2

The prosecution's witnesses discussed the note, but the
note was not admitted into evidence.
(See Dec. 13, 2004 Tr. 2.}
3

At the time of the trial, Marissa was ten years old and in
the fifth grade.
(Dec. 13, 2004 Tr. 28.)
3

second

or

third

grade,

Canady

would

vagina one or two times a week. 4

his

penis

about a

she left a note for her mother,

note.

her

year or so into the

Annette Canady,

stating

(Dec.

that her father was messing with her vaginal area.
2004 Tr. 36-37.}

in

{Dec. 13, 2004 Tr. 59.)

Marissa also testified that,
abuse,

place

13,

Annette testified and confirmed receiving the

(Dec. 13, 2004 Tr. 65-66.)
Dr.

Michelle

Clayton,

a

forensic

pediatrician,

that she examined Marissa in June of 2004.
82-83.)

Dr.

injuries

Clayton

to

her

penetration.

testified

hymen

that

were

Marissa

13, 2004 Tr.
had

consistent

sustained

with

penile

{Dec. 13, 2004 Tr. 83-85.)

Diane Smith,

a

social worker,

allegations of abuse arose.
Smith

to

buttocks,

and vagina.

{Dec .

indicated

that

Marissa

he

that

had

talked to Canady after the

{Dec. 13, 2004 Tr. 100-03.)

admitted

penis.

that

(Dec.

testified

he

had

touched

13 ,

20 04

touch

Tr .

his

Canady

Marissa's

breasts,

10 3- 0 4 . )

He also

chest,

thighs,

and

(Dec. 13, 2004 Tr. 103-04.)

Canady

acknowledged

testify in his defense,"

that

he

had

"the

absolute

but declined to testify.

right
(Dec.

to
13,

2004 Tr. 113).

4

When "Social Services" initially came to talk to her,
Marissa acknowledged that she had not been forthcoming about the
fact that Canady "was putting his penis in [her} vagina.
(Dec.
13, 2004 Tr. 37.)
Marissa reasonably explained, "It was hard to
talk about at firsc."
(Dec. 13, 2004 Tr. 38.)
4

The Circuit Court found Canady guilty of one count of rape
and ten counts of aggravated sexual battery.

(ECF No. 18-1, at

1.)

Canady filed a
granted

and

Motion to Reopen,

allowed

Canady

(Sept. 6, 2005 Tr. 3.)

to

which the Circuit Court

present

additional

witnesses.

Canady called his wife, Annette Canady,

who admitted that, in 1995, she had lied to the police in order
to have Canady incarcerated.

(Sept. 6, 2005 Tr. 4-6.)

Annette

further admitted that she had told her pastor, Pastor Whitehead,
that

she

(Sept.

had

6,

lied

2005

to

Tr.

the

6-7.)

police

regarding

Pastor

Canady' s

Whitehead,

when

conduct.
called

to

testify, admitted that Canady and Annette had come to speak with
him years

ago.

(Sept.

6,

2005

Tr.

10-11.)

Annette confirmed that "she had lied and
[Canady]

to be put in jail

another offense

At

[it]

Not for

that

meeting

had precipitated
this offense,

. that happened years ago. "

for

(Sept. 6, 2005

Tr. 11.)
The
(Sept.

Circuit

6,

2005

Court
Tr.

denied

16-17.)

Canady's
The

motion

Circuit

for

acquittal.

Court observed that

Marissa "was one of the most credible witnesses for her age that
[he] had heard in 19 years."
On

September

9,

2005,

(Sept. 6, 2005 Tr. 16.)
the

Circuit

Court

entered

final

judgment with respect to Canady's crimes and sentenced Canady to

5

an

active

term

of

imprisonment

of

forty

(40)

years.

{ECF

No. 18-1, at 2.)
Canady appealed.

On September 22,

2006,

the Supreme Court
(ECF No. 18-

of Virginia refused Canady's petition for appeal.
4, at 1.)

On September 24,

2007,

Canady filed a petition for a writ

of habeas corpus with the Supreme Court of Virginia.
18-5, at 1.)

On October 6, 2008,

{ECF No.

the Supreme Court of Virginia

dismissed Canady' s petition for a writ of habeas corpus.

{ECF

No. 18-6, at 36.)
Also in 2008, in response to his Freedom of Information Act
(FOIA)

request,

on

February

29,

2008,

the

James

City

County

Department of Social Services provided Canady with a copy of the
Child Protective Services Investigation record regarding the May
{See Exs.

2004 report that Canady had sexually abused Marissa.
18

I

18 (A) . )
On December 12, 2011, Canady filed a Motion to Vacate with

the

Circuit

Commonwealth,
12,

2011).

Motion

Court.
No.

to

14066-00 through 14066-10

On December 19, 2011,

Motion to Vacate.
14066-10, at 1

Vacate

at
(Va.

Cir.

Ct. Dec.

Canady

Cir.

v.

Ct. Dec.

the Circuit Court denied the

Canady v. Commonwealth, No.

(Va.

1,

12,

2011}.

14066-00 through
Canady appealed.

On July 16, 2012, the Supreme Court of Virginia refused Canady's
petition for appeal.

(ECF No.

18-7,

6

at 1.)

On November 8,

2012,

the Supreme Court of Virginia refused Canady' s

for rehearing.
On

petition

(ECF No. 18-8, at 1.)

April

18,

2014,

the

Williamsburg-James

City

County

Public Schools provided Canady a response to his FOIA request
regarding SOL testing in the schools on May 12, 2004.

(See Ex.

25.)
On
Petition.

April
(§

17,

2015,

Canady

2 2 5 4 Pet . 15 . ) 5

filed

In his

§

his

present

2254 Petition,

2254

§

Canady

contends he is entitled to relief upon the following grounds:
Claim One

Canady's rights were violated because he
received "multiple sentences for [a] single
offense . . . . "
(Id. at 6.)

Claim Two

"Petitioner was
tried and sentenced on
defective indictments that did not charge an
offense . . . "
(Id. at 7.)

Claim Three

The
"trial
judge
constructively
denied
Petitioner effective assistance of counsel
at every critical stage of the proceedings."
(Id.at9.)

Claim Four

"Petitioner was legally incompetent at the
(Id.
. . . time of his state trial . . . . "
at 11.)

Claim Five

"Outrageous
governmental
misconduct,
the
knowing use of false manufactured evidence
and perjured testimony."
(ECF No. 1-1 at
61.)

5

The Court deems the petition filed on the date Canady
swears he placed the petition in the prison mailing system.
Houston v. Lack, 487 U.S. 266, 276 (1988).
The Court corrects
the capitalization, punctuation, and spelling in the quotations
from Canady's submissions.
7

(a) Canady' s
ex-wife,
Annette
Canady
manipulated
Marissa
into
giving
false
evidence against Canady.
(Id. at 63.)
(b)
"The Commonwealth Attorney withheld,
and ignored exculpatory evidence which it
knew,
or
had
reason
to
know
that
. . . (school teacher and social workers)
used investigative techniques that was so
coercive and abusive that [they] would yield
false information."
(Id. at 64.)
( c)
Ms.
Wine falsely testified about
discovering the note attributed to Marissa
and to the facts regarding the SOL testing
occurring on May 12, 2004.
(Id. at 64-65.)
(d)
The Commonwealth Attorney suppressed
information
pertaining
to
the
"Hostage
Negotiators Incident Report,
which could
have been used at trial to demonstrate exwife was conspiring with social workers for
arrest purposes."
(Id. at 71.)
(e)
The testimony admitted at trial from
Diane Smith reflecting that Canady admitted
to molesting his daughter is false and
should be stricken from the record.
(Id. at
74.)
(f)
In the late 1990s and 2000, the
prosecuting
attorney
provided
material
support to Annette Canady and encouraged her
to seek a divorce.
(Id. at 80-81.)
The
hundred

§

2254

pages

references a

Petition and supporting Memorandum exceed one
in

host

length.
of

In

2015,

span hundreds of pages.

§

2254

Petition,

Canady did not

Exhibits.

exhibits contemporaneous with his
On May 26,

his

§

submit

Canady
these

2254 Petition.

Canady filed Exhibits 1 through SO which
(ECF No. 13.)

On June 18, 2015, Respondent filed his Answer and Motion to
Dismiss.

(ECF Nos. 15, 16.)

8

On August 24,

2015,

Canady filed his Traverse {ECF No.

and his

"Points and Authorities

No. 24).

In those submissions,

in Support of Traverse"

§

2254 Petition.

attached a petition under 28 U.S.C.

§

original

§

2254

claims that may lurking in Exhibit l
would

be

futile,

as

any

new

claims

Canady also

2254 as Exhibit 1 to his

"Points and Authorities in Support of Traverse."
to amend his

{ECF

Canady realleges the same five

grounds for relief raised in his

sought

23)

Canady has not

Petition to add any new
and any attempt to do so
would

be

barred

by

the

statute of limitations.
II.
A.

ANALYSIS

Statute Of Limitations

Section
Penalty Act

101

of

{"AEDPA")

the

Antiterrorism

amended 28

u.s.c.

and
§

Effective

Death

2244 to establish a

one-year period of limitation for the filing of a petition for a
writ of habeas corpus by a
judgment of a

state court.

person in custody pursuant to the
Specifically,

28 U.S. C.

§

2244 {d)

now reads:
l.

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 in violation of the Constitution
9

or
laws
of
the
United
States
is
removed, if the applicant was prevented
from filing by such State action;
(C)
the date on which the constitutional
right asserted was initially recognized
by the Supreme Court, if the right has
been newly recognized by the Supreme
Court and made retroactively applicable
to cases on collateral review; or
(D)
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.

2.

28

u.s.c.

§

2244(d).

Commencement Of The Statute Of Limitations Under 28
U.S.C. § 2244(d) (1) (A)

B.

Canady' s

judgment became

final

on Thursday,

December

21,

2006, when the time to file a petition for a writ of certiorari
expired.
(" [T] he

Hill v.
one-year

Braxton,

277

F. 3d 701,

704

limitation period begins

(4th Cir.

2002)

running when direct

review of the state conviction is completed or when the time for
seeking direct
§

review has expired

2244 (d) (1) (A)));

certiorari

should

see
be

Sup.
filed

Ct.
within

II

R.

(citing 28 U.S.C.

13(1)

ninety

(petition

days

of

entry

for
of

judgment by state court of last resort or of the order denying
discretionary review) .
until

September 24,

petition.

The limitation period ran for 276 days,

2007,

See 28 U.S.C.

when Canady
§

2244(d) (2).
10

filed

his

state habeas

The limitation period

began to run again on October 6, 2008, when the Supreme Court of
Virginia dismissed his

state habeas petition.

s,

period expired on Monday, January
Accordingly,
§

2254

Petition

the

statute

unless

2009.

of

Canady

The limitation

limitations

demonstrates

bars

Canady's

entitlement

to

a

belated commencement of the limitation period or to an equitable
exception to the limitation period.

As explained below, Canady

fails to demonstrate any circumstance that would make his

§

2254

Petition timely.

c.

Miscellaneous Argwnents As To Why Claims Are Not
Barred

Canady suggests his constitutional claims cannot be barred
by

the

statute

of

limitations

because

they

substantial and constitute structural errors.

are

simply

too

~'

ECF

(See,

No. 24, at 13 (Claim Three \\is not time barred because the trial
judge

constructively

denied

Petitioner

his

constitutional right to trial . . . . ") . )
merit.
to

By its plain terms,

all

claims

for

constitutional right.
(5th Cir.

2009)

challenging

the

Sixth

Amendment

This assertion lacks

the statute of limitations applies

relief

based

on

See In re Johnson,

a

violation

of

a

325 F. App'x 337, 340

(rejecting petitioner's assertion that a claim
execution

of

allegedly

mentally

retarded

individual is exempt from the statute of limitations) .
Relatedly,

Canady

also

claiming a miscarriage of

suggests

that

because

he

"is

justice to his conviction overall,"
11

none of his claims are time-barred.

( ECF No .

collateral

for

review

jurisprudence,

miscarriage of justice means actual

24 ,

at 18 . )

non-capital

innocence of

In

cases,

the crime of

conviction.

See United States v. Jones, 758 F.3d 579, 585 (4th

Cir. 2014).

Absent a showing of actual innocence, Canady cannot

avoid the statute of limitations simply because he believes some
significant
original)

legal
(some

miscarriage of

error occurred.

Id.

quotation

internal

justice exception,

severely confined category:

cases

at

584

marks

(alteration in
omitted)

we underscore,

("The

applies

to a

in which new evidence

shows

'it is more likely than not that no reasonable juror would have
convicted [the petitioner].'"

(quoting McQuiggin v. Perkins, 133

S. Ct. 1924, 1933 (2013))) .
D.

Belated Commencement Of The Limitation Period Under 28

u.s.c.

§

2244(d) (1) (d)

Under§ 2244(d) (1) (D),
when the petitioner knows,
discovered,
Schlueter v.
Boyd,
of

the

factual

Varner,

2 3 5 F . 3 d 3 s6 ,

Canady's

claims

the limitation period begins to run
or through due diligence could have

predicate

384 F. 3d 69,
3 s9

( 7th Cir .

and

his

for
74

a

potential

(3d Cir.

2 OOo) .

submissions

central factual bases of Canady's claims.

claim.

See

2004) ; Owens v.

The sprawling nature
tend

to

obscure

Nevertheless,

the

it is

plain that Canady is not entitled to a belated commencement of
the limitation period for Claims One through Four,

because the

factual predicates for each of these claims was discoverable by
12

Canady through the exercise of due diligence well before
conclusion of his direct appeal or at
proceedings.
fails

to

the

least his state habeas

Given the numerous years that have elapsed, Canady

coherently explain how

§

2244 (d) (1) (D)

could

render

Claims One through Four timely. 6
With respect to Claim Five, Canady insists that this claim,
and all of its subparts, are timely because he filed it promptly
after he "obtained

[documents]

Information

(F.O.I.A.)

Act

through the Virginia Freedom of
on

April

18,

2014,

relevant evidence obtained through the F.O.I.A.,

and

other

and attorneys

at various times after petitioner's state habeas petition was
filed."
(b) .)

(ECF No. 24, at 21 (citing Exs. 22, 25, 29, 36, 37(a) &
As explained below,

Five, or any aspect of the

these arguments fail to render Claim
§

2254 Petition, timely.

Canady cannot avoid the statute of

limitations simply by

inundating the Court with paper to support his fanciful theory
that

his

conviction

was

orchestrated by his wife.

the

product

of

a

vast

As reflected above,

6

conspiracy

before he was

Canady vaguely suggests that the decision in McQuiggin
constitutes a new factual predicate which permits a belated
commencement
of
the
limitation
period
under
28
u.s.c.
§ 2244 (d) ( 1) (D) •
( § 2254 Pet. 14 (citation omitted) . )
He is
wrong.
See Whiteside v. United States, 775 F.3d 180, 184 (4th
Cir. 201~(en bane) (some internal quotation marks omitted} ("A
decision establishing an abstract proposition of law arguably
helpful to the petitioner's claim does not constitute the
'factual predicate'
for that claim."
{quoting Shannon v.
Newland, 410 F. 3d 1083, 1089 (9th Cir. 2005))), cert. denied,
135 S. Ct. 2890 (2015).
13

even sentenced,

Canady was advancing the theory that his wife

had coerced his daughter into testifying falsely against him.
In the years since his conviction, Candy has continued to add an
ever growing
him.

number

of

individuals

to

the

conspiracy against

By the time he filed his state habeas petition,

Canady

claimed that he was entitled to relief because:
The prosecutor knew before trial, and suppressed
the fact that this is a conspiracy, fraud, a well put
together plan started by my wife (Annette E. Canady)
and . . . perfected by . . . social workers Diana
Smith, Karen Taliferro, school teacher, Lois Wine
guidance counselor .
"
(ECF No.

18-5,

at

Canady also

10.)

claimed

that

Smith and

Talieferro fabricated the note allegedly found by Wine in order
to

have

a

pretext

for

prosecuting

Canady.

(Id.) 7

By

conclusion of his state habeas proceedings on October 6,
Canady knew all the facts,

the
2008,

or through due diligence could have

discovered all the necessary facts,

to bring his current claims.

Nevertheless, three more years elapsed before Canady pursued any
other collateral relief.
limitations,

Given the brevity of the statute of

this extended period of lassitude alone forecloses

Canady's ability to utilize

§

2244(d) (1) (D) to avoid the statute

of limitations bar.
7

On February 29, 2008, while the state habeas petition was
pending, the James City County Department of Social Services
provided Canady with a copy of the Child Protective Services
Investigation record regarding the May 2004 report that Canady
was sexually abusing Marissa.
(See Exs. 18, 18(A) .)
Canady
relies upon this information to support Claim Five(b).
14

Canady persists that his

§

2254 Petition is timely because

he filed within a year of "obtain [ing]
December
from

9th,

the

2004

proceeding

'Williamsburg-

and a

James

the transcripts from the
complete

City

County

accurate

Public

report

School[s]"

regarding the SOL testing that was conducted on May 12,
(ECF No. 24, at 22.)

He is wrong.

2004.

"Section 2244 (d) (1) (D) does

not convey a statutory right to an extended delay . .

while a

habeas petitioner gathers every possible scrap of evidence that
might,

by negative implication,

support his claim."

Flanagan

v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998).
Canady fails

to demonstrate that his lack of access to a

complete transcript of his trial warrants a belated commencement
of the limitation period. 8

"[T] here is no requirement that a

habeas

in his

petitioner enumerate

supports a ground for relief.
§

petition every

Rather,

fact

which

. . . the Rules Governing

2254 Cases provides that a petitioner need only 'set forth in

summary form the facts supporting each of the grounds' specified
in the petition."
Cir. 2002)

Lloyd v.

Van Natta,

(citation omitted).

296 F.3d 630,

633

(7th

Canady fails to demonstrate, as

he must, that his lack of access to the transcript of his trial,
or any document in the hands of his prior counsel, prevented him
8

In the section addressing Canady' s assertion of actual
innocence, see infra Part II.E.1, the Court provides some
additional discussion of why Canady's receipt, on April 14,
2014, of a response to his Freedom of Information Act request
fails to warrant a belated commencement of the limitation
period.
15

from setting forth in summary form the facts
claims.

See Clark v.

Oklahoma,

2006); Weibly v. Kaiser,
(citation omitted)

468

that support his

F.3d 711,

50 F. App'x 399,

403

714

(10th Cir.

(10th Cir. 2002)

(holding petitioner's argument "insufficient

because he does not allege specific facts that demonstrate how
his alleged denial of

[legal]

materials impeded his ability to

file a federal habeas petition");
178 F. App' x 327,
defendants

327

(4th Cir.

generally can

rely

see United States v.
2006)

upon

(observing that criminal

their own recollection

preparing a collateral attack); cf. Waldron-Ramsey v.
556 F.3d 1008,

1013-14

(9th Cir.

Butler,

2009)

in

Pacholke,

(refusing to equitably

toll limitation period where inmate had access to some, but not
all of his files and did "not point to specific instances where
he needed a particular document

[and]

could not have kept that

document").
E.

Actual Innocence

"Claims

of

freestanding ones,
(1993),

whether

innocence,

see Herrera v.

Collins,

or merely as gateways to excuse a

see Schlup v.

Delo,

granted casually."
Cir.

actual

1998)

513

U.S.

Wilson v.

(parallel

298,

317

Greene,

citations

presented

506

U.S.

390,

as
417

procedural default,

(1995),

should not

155 F.3d 396,

omitted).

Here,

404
the

be
(4th

Court

reviews Canady' s assertion of innocence under the more lenient
standard for gateway claims because

16

Canady' s

actual

innocence

claim would allow
barred claims .

the

Court

to

McQuiggin v.

consider

Perkins,

his

133

otherwise

s.

Ct.

time-

1924,

1928

(2013).
A gateway claim requires "new reliable evidence-whether it
be

exculpatory

accounts,

scientific

evidence,

trustworthy

eyewitness

or critical physical evidence-that was not presented

at trial."

Schlup,

513 U.S. at 324.

"Because such evidence is

obviously unavailable in the vast majority of cases,
actual innocence are rarely successful."

claims of

Id.

If a petitioner meets the burden of producing new,
reliable

evidence

of

his

innocence,

the

Court

truly

then considers

"'all the evidence,' old and new, incriminating and exculpatory,
without regard to whether it would necessarily be admitted under
'rules

of

admissibility

determines whether the

that

(quoting Schlup,

513

determine

"whether

reasonable

juror would have

reasonable doubt.'"
2010)

'it

is

House v.
U.S.

at

the

Bell,

trial'"

standard for a

54 7 U.S.

at 327-28).

and

518,

538

The Court must

more

likely

than

not

that

no

found

petitioner guilty beyond a

Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir.

(quoting Schlup, 513 U.S. at 327-28).
"The

Court

need not

proceed

to

inquiry unless the petitioner first
with

govern

petitioner has met

gateway claim of innocence.
(2006)

would

evidence

of

the

requisite

17

this

second step of

the

supports his or her claim

quality."

Hill

v.

Johnson,

No. 3:09cv659,

2010 WL 5476755, at *5

(citing Weeks

v.

1997);

Bowersox,

Feaster v.

119

Beshears,

(E.D. Va. Dec. 30,

F.3d 1342,

56 F.

Supp.

1352-53

2d 600,

2010)

(8th Cir.

610

(D.

Md.

1999)).
In support of his claim of innocence, Canady has submitted
a

horde

school

of

records

testimony;

These documents

documents.
which

affidavits

Canady
from

include,

suggests

his

sons;

impeach
a

copy

inter alia:
Lois

of

Wine's

the

Child

Protective Services Investigation record regarding the May 2004
report

that

Canady

allegations that Dr.
wife because Dr.

was

sexually

abusing

Marissa;

Canady's

Clayton was biased in favor of Canady' s

Clayton worked at a

hospital where Canady' s

wife used to work; 9 and a slew of other documents with little to
no probative value of Canady's innocence.
tendered
innocence.

by

Canady

constitutes

new

None of the evidence

reliable

See Schlup, 513 U.S. at 324. 10

evidence

of

his

Rather, as explained

9

Canady has not tendered any scientific or medical evidence
that refutes Dr. Clayton's testimony that Marissa had sustained
injuries to her hymen that were consistent with sexual
penetration.
1

°

Canady also swore under penalty of perjury to the
entirety of his "Points and Authorities in Support of Traverse."
(ECF No. 24, at 45.)
Canady' s declaration of his innocence
fails
to constitute reliable evidence of his
innocence.
Canady' s declaration of his innocence is not "trustworthy" and
does not constitute "reliable" evidence of innocence sufficient
to support a claim of actual innocence.
Schulp, 513 U.S. at
324.
"To accept such commonplace declarations would ignore the
Supreme Court's admonition that
the quality of evidence
necessary to support a claim of actual innocence 'is obviously
18

below, Canady has produced specious allegations and unconvincing
proof in support of his story that he was framed.

1.

School Records

For example,
story

of

SOL

Canady now

testing

on

claims

May

12,

Ms.

2004

Wine
and

"concocted"

some

third

the

party

constructed the note attributed to Marissa in order fabricate
probable cause

(ECF No.

for his arrest.

24,

at 22-23.)

In

support of this assertion, Canady notes that "[n)ewly discovered
evidence

show[s)

that NO FOURTH GRADE S.O.L.

MAKE UP TEST[S)

WERE ADMINISTERED TO FOURTH GRADE STUDENTS on 5-12-04 . . .
(Id.

at

Canady

23.)

directs

the

Court

to

information

II

he

obtained in response to a Freedom of Information Act request in
2014

to support his assertion that Ms. Wine lied about the SOL

testing

occurring

Canady's

new

on May

evidence,

12,

(Id.

2004.

however,

citing

corroborates,

Ex.

25.)

rather

than

refutes Ms. Wine's testimony.
Contrary to Canady's twisted revision of her testimony, Ms.
Wine

did

not

administering
graders.
on May

state

that

"FOURTH GRADE

on

s. 0. L.

(ECF No. 24, at 23.)
12,

2004,

the

May

school

12,

2004

the

school

MAKE UP TEST [S] "

was

to fourth

Rather, Ms. Wine testified that,
was

conducting

fourth graders that had not passed the

testing

of

"any

language arts or math

unavailable in the vast majority of cases.'
Carter v.
Commonwealth of Va., No. 3: 09CV121-HEH, 2010 WL 331758, at *6
(E.D. Va. Jan. 26, 2010) (quoting Schlup, 513 U.S. at 324).
11

19

section of the third-grade"
13, 2004 Tr. 21-23.)

standard of learning test.

(Dec.

Canady's new evidence confirms that on May

12, 2004, the school was administering the third grade SOL test
for

( Ex .

reading.

neither supports
Wine

testified

a

at

25 ,

claim of

falsely.

discovered

any

conducted,

new

the

Thus,

3•)

innocence nor

Furthermore,

facts

information

Canady' s

about

in Exhibit

indicates

because

when

the
25

new evidence
that Ms.

Canady has

SOL

fails

testing

not
was

to provide

a

basis for a belated commencement of the limitation period under
28

u.s.c.

2244(d) (1) (D).

§

2.

Affidavits From Darius And James Canady

Canady also has tendered a

( Exs . 3 7 , 3 7 (a) , 3 7 ( b) , 3 7 ( c) . )

sons, Darius and James Canady.
Much

of

the

affidavits

series of affidavits from his

are

devoted

circumstances surrounding Canady' s

to

recounting

arrest on May 12,

the

2004 and

are largely irrelevant to the issue of his innocence.
In
Darius,

the

affidavit

however,

executed

swear that

on

it was

June

25,

impossible

2010,

James

and

for any sexual

abuse to have occurred in the living room between February and
June of 2001 because the first floor of the house was a wreck
and the flooring had been removed for a portion of that time.
(Ex.

37,

at

4.)

Darius

further

swears

that

conversation he had with Marissa "before she died,

during
I

a

asked her

did she write [the note found by Ms. Wine], and Marissa said no.

20

She never told me who did. "
that

his

father

told

(Id.

him

that

someone's "pre-arranged plan.

at 6.)
his

Darius then recites

convictions

flowed

from

don't know all of the details,

I

but I will testify that something funny is going on."

(Id.)

In an affidavit executed four years later, on February 14,
2015, Darius then supplies the details.

(See Ex. 3 7 (A) , at 3 • )

Darius now asserts "Marissa did claim that our mother Annette E.
Scott

influenced,

and

pushed

her

into
(Id.

allegations against our father."

making
at 1.)

false

sexual

Darius claims

that he did not share this information earlier because he feared
that

his mother would be arrested and

Darius

indicates

he

feels

free

to

sent

share

to

the

jail.

(Id.)

information now

because he realizes his mother would only receive a fine.

(Id.)

At best, the foregoing affidavits tend to impeach Marissa's
trial

testimony,

Moreover,

the

rather
timing

than
and

directly

content

of

exculpate
these

significantly undercuts any value for impeachment.

Canady.

affidavits
See Schlup,

513 U.S. at 332 ("[T]he court may consider how the timing of the
submission and the likely credibility of the affiants bear on
the

probable

reliability

of

that

evidence.")

Darius

waited

until years after the trial and years after Marissa's death to
come forward with any statement indicating Marissa lied about
being the author of the note found by Ms.

Wine.

Darius then

waited four more years to supply further second-hand information

21

suggesting

that

Canady's

wife

pressured

Marissa

to

testify

falsely about the sexual abuse.
Rather than the honest

admissions

of

reliable witnesses,

the affidavits appear to be the product of a father's emotional
pressure upon his
would

support

children

his

tale

to

that

supply him with testimony that
he

was

framed.

Even

the

most

credulous of jurors would not believe Canady's wife was capable
of maneuvering her daughter,

teachers,

doctor into framing him on a

a

social worker,

and a

trumped up sexual abuse charge.

Moreover, Canady's own evidence indicates that his wife did not
need to fabricate any crime in order to have him prosecuted and
put in jail. 11
the

police

affidavits

Canady' s wife simply could have reported him to

for
of

his

constant

Darius

and

use

James

of

illegal

Canady

fail

drugs.
to

The

constitute

reliable evidence of Canady's innocence.
3.
Canady
Investigation
provides
some

Child Protective Services Investigation Record
believes
Record

compelling

allegedly

that
("CPS

Child

the
Record")

evidence

inconsistent

of

his

(Exs.

Service

18 (A),

somehow

innocence

information

11

Protective
22)

because

about

the

it

has

exact

At the time of his arrest, Canady was on probation for
suspended sentences for destruction of property and burglary.
Both Darius and James
readily admit
that Canady smoked
prodigious amounts of crack in days preceding his arrest.
(See
Ex. 37, at 1.)
22

circumstances

that

led

to

arrest 12

his

and

it

reveals

that

Marissa initially was reluctant to admit the extent of abuse she
suffered at

the

hands

suggestion,

the

CPS

account

of abuse

of

her

Record

father.
largely

and provides

further

Contrary

to

corroborates

Canady's
Marissa's

compelling evidence

of

Canady's guilt.
4.

Analysis

Canady has failed to produce any new reliable evidence of
his

See

innocence.

(1998)

Calderon v.

Thompson,

523

538,

559

(emphasizing that new reliable evidence of innocence is a

"rarity" ) .

Thus,

no need exists to proceed to the second step

of the inquiry and consider all of the evidence.
5476755,
1997);

U.S.

at *5
Feaster,

(citing Weeks,
56

F.

119 F.3d 1342,

Supp.

considering all the evidence,

2d

at

610).

Hill, 2010 WL

1352-53

(8th Cir.

Nevertheless,

Canady fails to demonstrates that

"'it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a

reasonable doubt.'"

Sharpe,

593 F.3d at 377 (quoting Schlup, 513 U.S. at 327-28).
The evidence continues to convincingly demonstrate Canady's
guilt.

The Circuit Court observed that Marissa "was one of the

12

At the time of his arrest, it was reported to the police
that Canady was barricaded in his home and possibly suicidal.
(See Ex. 29.)
Canady suggests this information was false and
must have been fed to the police as part of the conspiracy to
have him falsely arrested for sexual abuse.
As noted above, no
such conspiracy existed.
Moreover, Canady in no way advances
his claim of innocence by providing irrelevant details regarding
the circumstances of his arrest.
23

most credible witnesses for her age that the I ha[ve]
19 years."

(Sept. 6, 2005 Tr. 16.)

That assessment is entitled

to significant weight in the present analysis.
F.3d at

378-79.

heard in

See Sharpe, 593

Marissa's compelling testimony regarding her

abuse was corroborated by Dr. Clayton's testimony regarding the
damage

to Marissa's

Marissa.

hymen

and

Canady's

admission

to

abusing

Canady's evidence in support of a fanciful theory of a

conspiracy to have him falsely arrested in no way undermines the
overwhelming evidence of his guilt.
III. CONCLUSION
Accordingly,
will be granted.

Respondent's Motion to Dismiss
The

§

action will be dismissed.

(ECF No.

16)

2254 Petition will be denied and the
A certificate of appealability will

be denied.
The Clerk of the Court is directed to send a copy of this
Memorandum Opinion to Canady and counsel of record.
It is so ORDERED.

Rtl'
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: November ~, 2015

24