Ali v. Lawrenceville Correctional Center
Filing
37
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/28/2018. Copy mailed to Ali.(tjoh, )
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iL
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DEC 28 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
CLERK. U S
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9tr;i "TTipt
PKhi.. •
Richmond Division
ABIR ALI,
Petitioner,
Civil Action No. 3:17CV656
V.
LAWRENCEVILLE CORRECTIONAL CENTER,
Respondent.
MEMORANDUM OPINION
Abir Ali, a Virginia inmate proceeding pro se, submitted a
28
U.S.C. § 2254
petition
(hereinafter "§ 2254 Petition," ECF
No. 26) challenging his 2013 conviction in the Circuit Court of
Fairfax
murder.
County (hereinafter "Circuit
On
Court")
of second-degree
his § 2254 Petition form, Ali argues that he is
entitled to relief on the following grounds:^
Claim One:
"Counsel failed
to
conduct
a
pre-trial
investigation [and] interview Ms. Parada
which
could
divulge
elicit
essential
impeachment evidence.
[The] result of this
neglect prejudiced the case by a bias[ed]
witness."
Claim Two:
(§ 2254 Pet. 6.)
"Counsel failed to impeach Ms. Parada with
the help of clear [and] convincing evidence
which [was] not represented [and] resulted
^ The Court corrects the capitalization and punctuation in
quotations from Ali's submissions.
Ali filed hundreds of pages
of attachments to his § 2254 Petition.
The Court employs the
pagination assigned by the CM/ECF docketing system for citations
to those submissions.
The Court also employs the CM/ECF
pagination for citations to attachments to the Brief in Support
of Motion to Dismiss filed by Respondent.
•
[in]
an
unconstitutional
incarceration
according to Strickland[ v. Washington, 466
U.S. 668, 687 (1984)]."
at 8.)
Claim Three:
"Counsel
didn't
[(a)]
cross-examine
the
medical expert, Dr. Diangelo, [and, (b)] did
not call the court-appointed expert for the
defense.
Dr.
Fowler,
who
could
testify
regarding
Mr.
Patel's
accidental
death
[which] resulted [in] error."
Respondent
has
filed
a
MOTION
TO
DISMISS
(Id. at 9.)
AND
RULE
5
ANSWER
("Motion to Dismiss," EOF No. 33) arguing that Ali's claims lack
merit.
Despite the provision of notice pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), All filed no response.
.1.
FACTUAL AND PROCEDUBAL HISTORY
All was initially charged with first-degree murder.
23, 2013 Tr. 23.)
second-degree
conviction,
After a jury trial. All was convicted of
murder
incarceration.
(Sept.
and
was
sentenced
to
eighteen
(EOF No. 35-1, at 1-2, 4.)
arguing
that
insufficient
years
of
All appealed his
evidence
existed
to
support his conviction for second-degree murder.
(ECF No. 35-2,
at
Court
of
of
Ali's
1.)
Virginia
In
rejecting
aptly
this
summarized
claim,
the
the
evidence
Appeals
of
guilt
as
follows:
Appellant was convicted of second-degree murder.
He
contends
the
evidence
is
insufficient
to
support
his conviction. Specifically, he argues the "trial
court erred by finding sufficient evidence that Bharat
Patel's
death
was
an
unlawful
killing
and
not
an
accidental killing."
He also contends the evidence
failed to establish he "possessed the requisite malice
to establish murder over voluntary manslaughter as the
evidence supported that [he] and [the victim] were
engaged in mutual combat thereby negating the malice
necessary for second degree murder."
"On appeal, ^we review the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom.'"
Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d
826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.
App. 438; 443, 358 S.E.2d 415, 418 (1987)).
So viewed, the evidence proved that appellant was
romantically involved with the victim's wife. In June
2012, the victim, Bharat Patel, returned to his
residence and discovered appellant there with his
wife. Saraswati Patel, the victim's spouse, testified
that on June 8, 2012, after Patel had learned of her
affair with appellant, she called appellant and
informed
him
Patel
had
threatened
to
kill
her,
himself, and appellant if Saraswati Patel had any
contact with appellant.
Later that night, Saraswati
Patel again called appellant and told him she would
soon be driving home with her husband from the
restaurant where they worked. She also told appellant
she was scared and did not want to go home with her
husband.
Appellant indicated he might come get her
from the residence.
to her room.
her husband
Once home, Saraswati Patel went
Later that night, she woke up and noted
was not in the residence.
After she
was
unable to find him, she called the police.
Digma Medina De Parade Medrano testified she was
parking her car at the apartment complex where the
Patels lived when she saw a man walk in front of her
car twice.
She identified him as appellant.
She saw
him approach an older man. When the two men got close
to each other, appellant removed a black object from
his pocket.
Medrano explained it appeared that
appellant "hugged" the older man and she saw a blue
light emit from the black object.
Appellant placed
the object on the older man's stomach and arm. After
the older man was touched with the object a second
time, he fell to the ground. Appellant then moved the
older man into some nearby bushes.
She heard the
older man calling for help, then heard silence and saw
appellant emerge from the bushes.
She called the
police.
and
The police found the victim's body in the bushes
located bloodstains throughout the area.
The
victim's autopsy revealed he had a number of abrasions
on his body and a laceration on the left side of his
head.
Two of the
during
the
victim's teeth
altercation.
had been
The
knocked
medical
out
examiner
testified Patel died from blunt head trauma.
When first confronted by the police, appellant
denied having any involvement with the incident.
Later, he admitted traveling to the Patels' apartment
complex and that he encountered the victim there.
Appellant claimed the two struggled and that he
defended himself against Patel.
He admitted having
purchased a stun gun before the confrontation.
His
description of the encounter differed from Medrano's
account
confirmed
of
he
the
events
moved
Patel
she
witnessed.
into
the
bushes
Appellant
and
that
he
left without reporting the incident.
"In Virginia, every unlawful homicide is presumed
to
be
murder
of the
second
degree."
Pugh
v.
Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341
(1982). "Murder at common law is a homicide committed
with malice, either express or implied." Id. Second-
degree murder does not require a specific intent to
kill.
See Rhodes v. Commonwealth, 238 Va. 480, 486,
384 S.E.2d 95, 98 (1989). "It is quite clear that one
may slay maliciously without actually intending to
kill."
Ronald J. Bacigal, Criminal Offenses and
Defenses 339 (2011-12).
If he acts with malice, the
accused need only intend "to perform the conduct"
causing the victim's death. Id. at 340.
Malice inheres in the "doing of a wrongful act
intentionally, or without just cause or excuse, or as
a result of ill will."
Dawkins v. Commonwealth, 186
Va. 55, 61, 41 S.E.2d 500, 503 (1947).
"Implied
malice may be inferred from 'conduct likely to cause
death or great bodily harm, willfully or purposefully
undertaken.'"
Canipe v. Commonwealth, 25 Va. App.
629, 642, 491 S.E.2d 747, 753 (1997) (quoting Essex v.
Commonwealth, 228 Va. 273, 281, 322 S.E.2d 216, 220
(1984)).
Malice . . . is unnecessary in manslaughter
cases and is the touchstone by which murder
and manslaughter cases are distinguished.
. . [Proof of] malice . . . require[s] . . .
a wrongful act . . . done "willfully or
purposefully."
volitional
This
action
inadvertence.
Thus,
is
if
requirement
inconsistent
a
killing
of
with
results
from [criminal] negligence, however gross or
culpable, and the killing is contrary to the
defendant's
intention,
malice
cannot
be
implied[,
and
the
offense
constitutes
manslaughter].
In order to elevate the
crime to second-degree murder, the defendant
must
be
shown
to
have
willfully
or
purposefully,
rather
than
negligently,
embarked upon a course of wrongful conduct
likely to cause death or great bodily harm.
Essex V. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d
216,
219-20
(1984)
(citation
omitted)
(quoting
Williamson v. Commonwealth, 180 Va. 277, 280, 23
S.E.2d 240, 241 (1942)). "Whether the defendant acted
with malice is a question for the trier of fact." Id.
at 280, 322 S.E2d at 220.
Voluntary manslaughter is the unlawful killing of
another without malice, actual or implied, upon a
sudden heat, reasonable provocation, or in mutual
combat.
See Moxley v. Commonwealth, 195 Va. 151, 157,
77
S.E.2d
389,393
(1953)
(quoting
Read
v.
Commonwealth, 63 Va. (22 Gratt.) 924, 937-38 (1872)).
For combat to be "mutual," it must have been
voluntarily and mutually entered into by
both or all parties to the affray.
See
Smith [v. Commonwealth], 17 Va. App. [68,]
72, 435 S.E.2d [414,] 417 [(1993)].
It is
settled that "[o]ne who is assaulted may and
usually does defend himself, but the ensuing
struggle cannot be accurately described as
mutual combat." Harper v. Commonwealth, 165
Va. 816, 820, 183 S.E. 171, 173 (1936).
Lynn v. Commonwealth, 27 Va. App. 336, 356, 499 S.E.2d
1, 10 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147
(1999).
Appellant repeatedly states in his petition that
there was no evidence he intended to kill Patel.
He
also asserts that "[t]he circumstances surrounding the
incident that night do not support the hypothesis that
[he] purposefully caused the head trauma seen in Mr.
Patel."
Appellant contends the evidence failed to
establish
he
acted
with
malice
and
were engaged in mutual combat.
As noted above, second-degree
instead
murder
the
two
does
not
require proof of any specific intent.
See Tizon v.
Commonwealth, 60 Va. App. 1, 11, 723 S.E.2d 260, 265
(2012).
The
Commonwealth
must
merely
prove
"'a
malicious purpose to do
personal injury or hurt.'"
the deceased a serious
Id. (quoting Dock's Case^
62 Va. (21 Gratt.) 909, 913 (1872)).
Here the record
supports
the
jury's
conclusion
that
appellant
purposefully engaged in conduct likely to cause death
or bodily harm.
Appellant traveled to appellant's
residence in
order
to
confront
him
and
armed
himself
with a stun gun beforehand.
Medrano's description of
the encounter between appellant and Patel demonstrates
appellant, without provocation, repeatedly attacked
Patel with the stun gun until Patel fell to the
ground.
Appellant then moved Patel to a secluded
location while Patel called for help.
Appellant did
not leave the area until Patel was silent, suggesting
he continued his attack on the injured man after
moving him into the bushes.
Rather than calling for
emergency help, appellant then fled the scene.
"Evidence of flight may be considered as evidence
of guilt along with other pertinent facts and
circumstances."
Hope
v.
Commonwealth,
10
Va.
App.
381, 386, 392 S.E.2d 830, 833 (1990) (en banc)
(explaining that acts or conduct of accused after the
crime may tend to show consciousness of guilt).
Furthermore, the jury, as fact finder, could consider
appellant's
changing
stories
to
law
enforcement
authorities
about
Patel's
death
as
evidence
that
he
was "attempting to conceal his guilt by making
inconsistent explanations." Iqlesias v. Commonwealth,
7 Va. App. 93, 110, 372 S.E.2d 170, 179-80 (1988) (^
banc).
An appellate court does not "ask itself whether
it believes that the evidence at the trial established
guilt
beyond
a
reasonable
doubt."
Williams
v.
Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282
(2009) (quoting Jackson v. Virginia, 443 U.S. 307,
318-19 (1979)).
"Rather, the relevant question is
whether 'any rational trier of fact could have found
the
essential
elements
reasonable doubt.'"
Id.
of
the
crime
beyond
a
at 193, 677 S.E.2d at 282
(quoting Jackson, 443 U.S. at 319).
Thus, when a jury
has rendered its verdict, "it is not for this court to
say that the evidence does or does not establish his
guilt beyond a reasonable doubt because as an original
proposition
it
might
have
reached
a
different
conclusion."
Cobb v. Commonwealth, 152 Va. 941, 953,
146 S.E. 270, 274 (1929).
An "appellate court is no
substitute for a jury." Id.
This deferential appellate standard "applies not
only to findings of fact, but also to any reasonable
and justified inferences the fact-finder may have
drawn
from
the
facts
proved."
Sullivan
v.
Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64
(2010).
Thus, a fact finder may "draw reasonable
inferences
from
basic
facts
to
ultimate
facts,"
Haskins v. Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d
402, 406 (2004) (citation omitted), unless doing so
would push "into the realm of non sequitur," Thomas v.
Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229,
231 (2006) (citation omitted).
The trier of fact was not required to accept
appellant's
trial
testimony.
See
Cantrell
v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339
(1988).
The jury was entitled to conclude that
appellant lied and to infer that he
untruthfully in order to hide his guilt.
testified
See Daung
Sam V. Commonwealth, 13 Va. App. 312, 320, 411 S.E.2d
832, 837 (1991).
The jury rejected appellant's
testimony
and
accepted
Medrano's
account
of
the
events.
Under settled principles, "the Commonwealth need
only exclude reasonable hypotheses of innocence that
flow from the evidence, not those that spring from the
imagination of the defendant." Scott v. Commonwealth,
55 Va. App. 166, 172, 684 S.E.2d 833, 837 (2009) (en
banc) (citation omitted). "Whether the hypothesis of
innocence
fact,'
Cooper
is
reasonable
is
itself
a
^question
of
subject to deferential appellate review."
V. Commonwealth, 54 Va. App. 558, 573, 680
S.E.2d
361,
368
(2009)
(quoting
Clanton
v.
Commonwealth, 53 Va. App. 561, 572-73, 673 S.E.2d 904,
910 (2009) (en banc)).
Stated
another
way,
"[m]erely
because
defendant's theory of the case differs from
that taken by the Commonwealth does not mean
that every reasonable hypothesis consistent
with
his
innocence
has
not
been
excluded."
Clanton, 53 Va. App. at 573, 673 S.E.2d at
910 (quoting Miles v. Commonwealth, 205 Va.
462, 467, 138 S.E.2d 22, 27 (1964)).
Thus,
"the question is not whether ^some evidence'
supports the hypothesis, but whether a
rational
fact
finder
incriminating
hypothesis
of
could
evidence
innocence
have
found
the
renders
the
unreasonable.
//
James [v. Commonwealth], 53 Va. App. [671,]
682, 674 S.E.2d [571,] 577 [(2009)] (citing
indirectly [Commonwealth v.] Hudson, 265 Va.
[505,] 513, 578 S.E.2d [781,] 785 [(2003)]).
In practical terms, this means that—even if
not "inherently incredible"—a
defendant's
exculpatory version of events need not be
accepted by the fact finder.
Montgomery v.
Commonwealth, 221 Va.
188,
190, 269 S.E.2d
352, 353 (1980).
Tizon, 60 Va. App. at 12-13, 723 S.E.2d at 265.
Viewed in the light most favorable to the
Commonwealth, the evidence was sufficient to support a
finding that the victim's death was the result of
appellant's
deliberate
and
cruel
act
and
that
appellant
acted
with
malice.
The
Commonwealth's
evidence was competent, was not inherently incredible,
and was sufficient to prove beyond a reasonable doubt
that appellant was guilty of second-degree murder.
(Id. at 1-6 (alterations in original).)
Virginia denied the petition for appeal.
The Court of Appeals of
(Id. at 1.)
A three-
judge panel of the Court of Appeals of Virginia also denied
Ali's petition for appeal.
(Id. at 8.)
The Supreme Court of
Virginia refused Ali's subsequent petition for appeal.
(Id. at
9.)
All filed
a
petition for
writ of
habeas corpus in the
Supreme Court of Virginia raising all three of his claims in the
§ 2254 Petition.
35-3, at 6-31.)
The Supreme
Court of Virginia dismissed Ali's habeas petition.
(ECF No. 35-
4, at 86.)
(See ECF No.
The Supreme Court of Virginia denied Ali's petition
for rehearing.
§ 2254 Petition.
(Id. at 87.)
Ali subsequently filed the instant
II.
APPLICABLE CONSTRAINTS UPON HABEAS REVIEW
In order to obtain federal habeas relief, at a minimum, a
petitioner must demonstrate that he is "in custody in violation
of the
Constitution
or
laws
or
treaties
of the
United
States."
/
28 U.S.C. § 2254(a).
The
Antiterrorism
and
Effective
Death
Penalty Act ("AEDPA") of 1996 further circumscribed this Court's
authority to grant relief by way of a writ of habeas corpus.
Specifically, "[s]tate court factual determinations are presumed
to be correct and may be rebutted only by clear and convincing
evidence."
Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008)
(citing 28 U.S.C. § 2254(e)(1)).
Additionally, under 28 U.S.C.
§ 2254(d), a federal court may not grant a writ of habeas corpus
based on any claim that was adjudicated on the merits in state
court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or
involved
an
unreasonable
application
of,
clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The Supreme Court has emphasized that the
question "is not whether a federal court believes the state
court's
determination
determination
was
was
incorrect
unreasonable—a
but
whether
substantially
that
higher
threshold."
Schriro
v.
Landrigan,
550
U.S.
465,
473
(2007)
(citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
III.
To
INEFFECTIVE ASSISTANCE OF COUNSEL
demonstrate
convicted
ineffective
defendant
representation
was
must
assistance
show
deficient
and,
first
second,
performance prejudiced the defense.
466 U.S. 668, 687 (1984).
of
counsel,
that
that
a
counsel's
the
deficient
Strickland v. Washington,
To satisfy the deficient performance
prong of Strickland, the convicted defendant must overcome the
"^strong presumption' that counsel's strategy and tactics fall
^within the wide range of reasonable professional assistance.'"
Burch V. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting
Strickland, 466 U.S. at 689).
a
defendant
to "show
that
The prejudice component requires
there
is
a
reasonable
probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.
is
a
probability sufficient to
outcome."
Strickland,
466
A reasonable probability
undermine
U.S.
at
confidence
694.
In
in the
analyzing
ineffective assistance of counsel claims, it is not necessary to
determine whether counsel performed deficiently if the claim is
readily dismissed for lack of prejudice.
Respondent does
not
contest
Id. at 697.
that Ali
raised
his three
claims in his state habeas petition before the Supreme Court of
10
Virginia.
In
its
dismissal
of
Ali's
habeas
petition,
the
Supreme Court of Virginia identified several subparts to each of
Ali's claims.
seventy-nine
Ali attached to his § 2254 Petition, inter alia,
pages
of
support
for
his
three
claims.
Ali's
attachments are rambling and extremely repetitive, and contain
differently phrased statements of his claims than presented on
his § 2254 Petition form.^
Ali's supporting argument weaves back
and forth between his claims in no logical fashion.
Ali also
has provided no subparts to his claims and the Court identifies
no discernable subparts in his rambling narrative.^
Petition
form
also
provides
no
assistance
to
Ali's § 2254
the
Court
in
identifying whether his claims are the same as those he raised
in state court.
Where the form asks whether Ali exhausted his
state remedies for Claim One, Ali appears to indicate that this
was not a claim that he raised.
(§ 2254 Pet. 6.)
Ali also
indicates that he only raised Claims Two and Three "through a
^ For example, in Claim One on the § 2254 Petition form, Ali
indicates that his claim is about counsel failing to interview
the key witness and cross-examine her to reveal her bias towards
Muslims.
(§ 2254 Pet. 6.)
Ali's statement of Claim One in his
attachment fails to mention that this
(EOF No. 26-5, at 4.)
claim is
based
on
bias.
^ Ali's attachments are comprised largely of Ali's lengthy
recitations of alleged quotations from interview transcripts and
reports.
Upon closer inspection, a large portion of Ali's
attachments appear to be identical copies of the same pages.
(See EOF No. 26-5, at 8-11; EOF No. 26-6, at 2-5.) Ali fails to
adequately explain and the Court fails to discern how these
large sections of alleged testimony have any bearing on the
claims Ali raises.
11
post-conviction motion or petition for habeas corpus in a state
trial court."
Based
arguments
(Id. at 8-10.)
on
the
made
in
Court's
review
Respondent's
of
Motion
assumes that Ali intends to raise
what
the
to
record,
Dismiss,
and
the
was identified
the
Court
by the
Supreme Court of Virginia as Claims 1, 2(i), and a portion of
Claim 3.
As discussed in detail below, the Court has reviewed
the entirety of Ali's § 2254 Petition and attachments, and the
state
court
record,
and
concludes
that
the
Supreme
Court
of
Virginia's determination that Ali's claims lack merit is not
unreasonable.
Because the Supreme Court of Virginia first addressed the
claim that Ali presents in his § 2254 Petition as Claim Two, and
the opinion refers back to that analysis in later discussions,
the Court also reviews Claim Two first.
A.
Claim
Two
-
Failure
To
Interview
And
Impeach
Key
Witness
In Claim Two, Ali argues that counsel rendered ineffective
assistance because he "failed to impeach Ms. Parada[^] with the
help of clear and convincing evidence" that she provided a more
thorough
statement
the
following
day
after
speaking
to
detectives than she had provided the night of the incident.
^ Ali refers to the witness as Ms. Parada.
According to the
state court record, the witness's full name was Digma Medina De
Prada Medrano.
From this point forward, the Court changes any
reference to the name "Ms. Parada" to Medrano.
12
(Id. at 8.)
All believes that counsel failed to use Medrano's
initial statements that were less thorough to impeach her later
statements
where
observations.
she
(Id.)
provided
more
detail
about
her
In Ali's state habeas petition, these two
claims were presented scattered across portions of state habeas
Grounds 1 and 2.
(ECF No. 35-3, at 6-18.)
Virginia
Claim
divided
Two
into
The Supreme Court of
subparts,
and
for
ease
of
reference, the Court similarly divides Claim Two as follows:
(a) Counsel rendered ineffective assistance by failing to
impeach the key witness, Medrano, based on evidence her
testimony was coached. (See, e.g., ECF No. 26-6, at 1, 7,
30-31.)
(b) Counsel rendered ineffective assistance because counsel
disregarded Ali's request to impeach Medrano's testimony by
playing for the jury the recorded 911 call.
(Id. at 19;
§ 2254 Pet. 8.)
(c) Counsel rendered ineffective assistance because counsel
disregarded Ali's request to interview Medrano before
trial.
(ECF No. 26-6, at 1.)^
In explaining and rejecting Claim Two(a) here, the Supreme
Court of Virginia found:
In portions of claims (1) and (2)(i), petitioner
contends he was denied the effective
counsel because counsel did not make
impeach"
Medina
the
De
Commonwealth's
Prada
Medrano,
"key
based
assistance
a "motion
witness,"
on
of
to
Digma
evidence
her
testimony was "coached" by Detective Daniel Bibeault
and the Spanish language interpreter who assisted
Bibeault in interviewing Medrano. Petitioner explains
® The Court notes that Ali also includes the substance of
Claim Two (c) in his supporting argument for Claim One.
Because
Claim One is more focused on Medrano's alleged bias, the Court
addresses this subpart in conjunction with Claim Two.
13
Medrano witnessed petitioner's late-night altercation
with his victim, Bharat Patel ("Bharat"), in the
parking lot of the apartment complex where Bharat
lived with his wife, Saraswati Patel ("Saraswati") and
that Medrano gave three -pretrial accounts of what she
witnessed.
Petitioner claims Medrano's third account,
given to Detective Bibeault several hours after police
discovered Bharat's body, materially differed from her
first two accounts, one of which she gave to a 911
operator and the other which she gave to two officers
who
initially
responded
to
Medrano's
911
call.
Petitioner alleges the changes in Medrano's statement
and her corresponding trial testimony were the result
of Detective Bibeault or his interpreter supplying
Medrano
with
a
substantial
amount
of
information
so
that her testimony would agree with the physical
evidence and inculpate petitioner.
As evidence of such police misconduct, petitioner
identifies
ways
in
which
Medrano's
statement to
Detective
Bibeault
contradicted
or
added
to . the
statements she gave to the 911 operator and the two
responding officers. Petitioner cites also that, when
asked whether an interpreter was present during her
interview with Detective Bibeault, Medrano responded,
"[T]o
explain
to
me
what
happened."
Petitioner
recalls that, when counsel asked Medrano what led her
to assume petitioner was carrying a weapon in his
pocket, Medrano answered, "Because of the way in which
he led me to believe I supposed it was that."
Petitioner
refers
to
contends
Detective
the
"he"
Bibeault.
in
Medrano's
Finally,
answer
petitioner
notes Medrano's suggestion at trial that she told the
two officers who responded to her 911 call everything
she knew during the approximately thirty-five minutes
she spoke with them.
Petitioner appears to allege
these circumstances should have alerted counsel to the
fact
that
portions
of
Medrano's
testimony
were
supplied by the police and that counsel should have
brought this misconduct to the jury's or the court's
attention.
The Court holds this claim satisfies neither the
"performance" nor the "prejudice" prong of the twopart test enunciated in Strickland v. Washington, 466
U.S. 668, 687 (1984). The evidence petitioner claims
proves Medrano's testimony was improperly coached is
not as strong as petitioner contends.
That Medrano's
accounts of petitioner and Bharat's fight changed,
14
conflicted, or became more detailed over time does not
clearly suggest police misconduct.
Nor do Medrano's
statements at trial clearly raise the specter of such
impropriety.
Accordingly, without more information,
counsel reasonably did not argue or claim that Medrano
testified to information supplied to her by police.
Additionally, petitioner has not alleged that,
had counsel investigated the issue further or pressed
it at trial, he would have uncovered information more
convincingly establishing Detective Bibeault's alleged
misconduct.
See Bassette v. Thompson, 915 F.2d 932,
940-41 (4th Cir. 1990) (petitioner's failure to allege
^^what an adequate investigation would have revealed or
what . . . witnesses might have said, if they had been
called to testify" was fatal to his ineffective
assistance of counsel claim).
The
record, including
the trial transcript, demonstrates that counsel cross-
examined Medrano regarding several inconstancies [sic]
between her trial testimony and her prior statements.
Counsel
highlighted
inconsistencies
in
Medrano's
claims regarding (1) her proficiency speaking English,
(2) when she left her brother's house the night she
saw petitioner attack Bharat, (3) how many times she
saw petitioner pass in front of her car before he
attacked Bharat, (4) whether she saw petitioner punch
Bharat, (5) whether she saw both petitioner and Bharat
run from the scene after their altercation, and (6)
whether she told one of the officers who responded to
her 911 call that the "victim" was wearing a gray
shirt with an orange stripe, which was consistent with
the
shirt
petitioner
was
wearing
during
the
altercation.
In light of this last, helpful bit of
information and Medrano's general obstinance on cross-
examination, counsel's closing argument makes clear
that his strategy was to show Medrano witnessed Bharat
attack petitioner and later changed her account of
what transpired because she was overly eager to help
the
Commonwealth
secure
a
conviction.
Counsel's
strategy in this regard was reasonable considering
that petitioner told police Bharat attacked him but
also admitted (1) having an affair with Saraswati that
Bharat
had
recently
discovered,
(2)
repeatedly
shocking an unarmed Bharat with a stun gun, (3)
dragging Bharat's body into some bushes after he fell,
hit his head, and became unconscious, (4) fleeing the
scene without providing or calling for help, (5)
discarding the stun gun and the clothes he was
15
wearing, and (6) lying to police about the incident
until
confronted
with
the
fact
there
was
a
witness.
Petitioner has not explained how confronting Medrano's
inculpating testimony in a different manner would have
been more effective.
Thus, petitioner has failed to
demonstrate that counsel's performance was deficient
or that there is a reasonable probability that, but
for counsel's alleged errors, the result of the
proceeding would have been different.
(ECF No. 35-4, at 78-80.)
The Court discerns no unreasonable
application of the law and no unreasonable determination of the
facts.
See 28 U.S.C. § 2254(d)(1)-(2).
Although All spends
pages devoted to lengthy recitations of Medrano's statements to
police and picks out what he
believes are inconsistencies or
"movie like description[s] of the event" (see, e.g., ECF No. 266, at 8), Ali fails to identify any error in the Supreme Court
of
Virginia's
decision
concluding
that
counsel
was
neither
deficient nor was Ali prejudiced.
Medrano
was a
difficult witness for both the
Commonwealth
and the defense because she clearly spoke and understood some
English, but also had a Spanish interpreter during trial, and
she frequently answered the question in English before receiving
the translation.
in
a
clear
Medrano often refused to answer the questions
manner
or
her
answer
was
nonresponsive
despite
repeated admonitions by the Court to only answer the question
asked of her.
Nevertheless, Medrano consistently testified that
she saw Ali grab the victim, make contact many times with the
victim's body with an object that omitted blue light, and then
16
dragged the victim behind bushes.
(Sept. 16, 2013 Tr. 177-81.)
Medrano heard the victim yelling for help and then approximately
two minutes after the screams stopped, Medrano saw Ali come out
of the
away.
bushes
(Sept.
discredit
with
16,
Medrano
the
2013
object in
Tr.
through
his
hand
182-83.)
and start running
Counsel
cross-examination
attempted
by
to
identifying
inconsistencies in her testimony, such as disparities about the
time of the incident, the amount of times she saw Ali walk past
her car, what the victim was wearing, whether she actually saw a
weapon, and whether she could see at all because it was dark.
(Sept.
16, 2013 Tr.
197-207,
211-14.)
Medrano's
inconsistent testimony to
argument.
(Sept. 23, 2013 Tr. 66-68.)
Counsel
the
jury in
highlighted
his
closing
Counsel also advanced an
argument that Medrano "was all wound up to tell a story to prove
the government's case for them."
(Sept. 23, 2013 Tr. 65.)
Despite counsel's attempts to discredit Medrano, the jury found
her credible.®
Counsel's impeachment strategy was reasonable.
® The Court notes that Medrano's 911 call was in Spanish,
however, she provided her account to the officers who arrived at
the scene in English and she testified at trial that she had no
problem communicating with the officers in English because her
statement was "brief and specific."
(Sept. 16, 2013 Tr. 189-90;
see Sept. 17, 2013 Tr. 24, 52.) On redirect, Medrano stated
that a translator was present when she spoke with Detective
Bibeault the following morning.
the Court's review
inconsistencies in
barrier
and
that
(Sept. 16, 2013 Tr. 216.)
From
of the record, it is conceivable that any
her testimony were due to the language
Medrano's
provision
17
of
greater
detail
the
and
All
fails
to
demonstrate
that
any
further
attempt
to
discredit Medrano by suggesting that the police had coached her
would have changed the jury's verdict.
Ali fails to establish
any deficient performance by counsel or any resulting prejudice.
Accordingly, Claim Two(a) will be dismissed.
Similarly, in Claim Two(c), Ali faults counsel for ignoring
his request to interview Medrano prior to trial.
Ali contends
that such an interview "could [have] divulge[d] elicit essential
impeachment evidence."
(§ 2254 Pet. 6.)
In rejecting Claim
Two(c) here, the Supreme Court of Virginia explained:
[P]etitioner
assistance
contends
of
counsel
he
was
because
denied
the
counsel
effective
disregarded
petitioner's direction to interview Medrano pre-trial.
Petitioner claims that, had counsel done so, he would
have
learned
investigators
improperly
coached
Medrano's testimony.
The Court holds that this claim satisfies neither
the "performance" nor the "prejudice" prong of the
two-part test enunciated in Strickland.
Petitioner
proffers no factual support for his speculation that
Medrano would have agreed to speak with counsel or
that she would have divulged evidence of police
misconduct.
Thus,
petitioner
has
failed
to
demonstrate that, but for counsel's alleged errors,
the
result
of the
proceeding
would
have
been
different.
(ECF No. 35-4, at 81-82.)
The Court discerns no unreasonable
application of the law and no unreasonable determination of the
facts.
S^ 28 U.S.C. § 2254(d)(1)-(2).
Presumably Ali also
believes that a pre-trial interview would have picked up on the
following morning was because she now had the assistance of a
translator to communicate with the police.
18
same
inconsistencies
in
Medano's
statements
to
police,
alleged coaching by police, and any bias of Medrano.
Ali fails to identify, beyond speculation,
the
However,
what information a
pre-trial interview of Medrano would have revealed beyond what
the
defense
(explaining
adequate
already
that
knew.
See
Bassette,
petitioner's
investigation
would
failure
have
915
to
F.2d
allege
revealed
or
at 940-41
"what
an
what . . .
witnesses might have said, if they had been called to testify"
was fatal to his ineffective assistance of counsel claim).
Ali
also fails to direct the Court to any error in the Supreme Court
of
Virginia's
deficiency
of
conclusion.
counsel
nor
Because
resulting
Ali
demonstrates
prejudice.
Claim
neither
Two(c)
lacks merit and will be dismissed.
In
Claim
Two(b),
Ali
contends
that
counsel
disregarded
Ali's request to impeach Medrano's testimony by playing for the
jury the
recorded
Pet. 8.)
Ali insists that playing this call would "prove her
inconsistencies."
911
call.
(ECF
No.
26-6,
(ECF No. 26-6, at 19.)
at 19; § 2254
In rejecting Claim
Two(b) here, the Supreme Court of Virginia explained:
[P]etitioner contends he was denied the effective
assistance
of counsel because
counsel disregarded
petitioner's direction to impeach Medrano's testimony
by playing for the jury the recording of Medrano's 911
call.
Petitioner claims counsel also disregarded his
direction to impeach Medrano by introducing the
incident reports of the two officers who initially
responded to Medrano's 911 call.
19
The Court holds that this claim satisfies neither
the "performance" nor "prejudice" prong
part
test
enunciated
in
Strickland.
of the
two-
First,
the
extrinsic evidence petitioner identifies as recording
Medrano's
pre-trial
statements
would
have
been
admissible only if Medrano "denie[d] or [did] not
remember [her] prior inconsistent statement[s]."
Va.
Sup. Ct. R. 2:613(a)(ii).
Petitioner has not alleged
any
instance
in
Medrano's
testimony
where
this
foundational predicate occurred.
Additionally, as
described
above,
counsel
questioned
Medrano
on
numerous aspects of her inconsistent statements, and
petitioner has not explained how extrinsic evidence of
those statements would have materially altered the
jury's perception of Medrano's credibility.
Thus,
petitioner has failed to demonstrate that counsel's
performance
was
deficient
or
that
there
is
a
reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been
different.
(ECF No.
35-4, at 81 (alterations in
original).)
The Court
again discerns no unreasonable application of the law and no
unreasonable
determination
§ 2254(d)(1)-(2).
of
the
facts.
See
28
U.S.C.
To the extent that Ali faults counsel for
failing to introduce the 911 call to impeach Medrano's testimony
at trial,
as the
Supreme
Court of Virginia explained, that
evidence would be barred from admission on state law grounds.
Ali
fails
to
direct
the
Court
to
any
law
or
evidence
that
demonstrates that the Supreme Court of Virginia's conclusion is
incorrect, much less unreasonable.
See 28 U.S.C. § 2254(d)(1)-
(2); Richardson v. Branker, 668 F.3d 128, 141 (4th Cir. 2012)
("When a claim of ineffective assistance of counsel raised in a
habeas
corpus
petition
involves
20
an
issue
unique
to
state
law
a
a federal court should be especially deferential to
state
state's
post-conviction
law.");
of.
court's
Estelle
v.
interpretation
McGuire/
502
of
U.S.
its
62,
own
67-68
(1991) ("[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.").
Moreover, the inconsistencies Ali points to in support of
this claim are minor in light of the overwhelming evidence of
his guilt:
whether Medrano only saw a blue spark not a gun;
whether Medrano changed her testimony about the color of the
victim's
shirt;
clearly.
about
a
and,
whether
she
(ECF No. 26-6, at 19.)
number
of
inconsistencies
could
see
the
altercation
Counsel questioned Medrano
in
her
statements,
and
Ali
fails to demonstrate that the introduction of her statements to
police
or
the
911
call
would
have
changed
determination that her testimony was credible.
the
jury's
Ali fails to
demonstrate any deficiency of counsel or resulting prejudice,
and accordingly. Claim Two(b) will be dismissed.
B.
Claim One - Bias of Key Witness
In Claim One, Ali argues that counsel rendered ineffective
assistance when he "failed to conduct a pre-trial investigation
[and]
interview
Ms.
[Medrano]
which
could
elicit essential impeachment evidence."
contends
that
Medrano
was
biased
[have]
(§ 2254 Pet. 6.)
against
him
because
believed that he was a "Muslim extremist terrorist."
21
divulge[d]
(Id.)
Ali
she
In
All's state habeas petition, this claim was presented in part of
state habeas Claims 1 and 2.
(See EOF No. 35-4, at 9, 16-18.)^
In explaining and rejecting All's Claim One presented here,
the Supreme Court of Virginia found:
[P]etitioner
assistance
contends
of
counsel
he
was
denied
because
the
counsel
effective
failed
to
adequately present evidence of Medrano's racial animus
toward
persons
of
petitioner's
national
origin,
Bangladesh.
Petitioner explains that, when speaking
to police investigating Bharat's death, Medrano said
she was scared because, the day after she called 911,
she believed a man with a large beard driving a silver
car
followed
her.
According
to
a
memorandum
recounting
an
investigator's
conversation
with
Medrano, Medrano perceived the man to be a certain
race or nationality and stated, "[I]f these people can
put bombs in buildings, imagine what they can do to me
- a housewife."
Medrano believed her being followed
was somehow connected to the fight she witnessed
between
petitioner and Bharat and, accordingly, she
did not speak with police further.
The Court holds that this claim satisfies neither
the "performance" nor the "prejudice" prong of the
two-part test enunciated in Strickland.
Assuming
counsel
was
aware
of
Medrano's
alleged
xenophobia,
counsel reasonably could have decided not to broach
^ Buried in his supporting attachment, Ali also suggests
that counsel should have "interview[ed] Ms. Sara Patel who had
the center role of the whole situation."
(EOF No. 26-5, at 6.)
This suggestion that counsel should have interviewed Ms. Patel
has absolutely no bearing or relationship to his stated Claim
One, that counsel failed to properly root out Medrano's bias.
Ali provides a list of five things an interview of Ms. Patel
could possibly reveal.
(Id. at 17.)
However, Ali fails to
proffer sufficiently what favorable evidence or testimony an
interview of Ms. Patel would have produced.
All's terse and
conclusory allegations insufficiently demonstrate deficient
performance or prejudice under Strickland.
Bassette, 915 F.2d
at 940-41; see Sanders v. United States, 373 U.S. 1, 19 (1963)
(finding denial of habeas relief appropriate where petitioner
"stated only bald legal conclusions with no supporting factual
allegations").
22
the subject at trial.
As described above, counsel's
goal
was
to
show
Medrano
accurately
described
petitioner as the victim during one of her initial
statements to police and that she later changed her
story because she was eager to help the police.
Counsel could have reasonably determined this was a
sounder tactic than attempting to ascribe Medrano's
shifting accounts of what she witnessed to racial
animus or paranoia.
For similar reasons, there is no
indication the jury might have been more skeptical of
Medrano's testimony had counsel adopted the strategy
petitioner
suggests
instead
of
the
one
counsel
employed.
Thus, petitioner has failed to demonstrate
that counsel's performance was deficient or that there
was a reasonable probability that, but for counsel's
alleged
errors,
the
result
of
the
proceeding
would
have been different.
(EOF No. 35-4, at 80-81 (second alteration in original).)
The
Court discerns no unreasonable application of the law and no
unreasonable
determination
§ 2254(d)(1)-(2).
recitations
believes
of
are
of
the
facts.
See
28
U.S.C.
Although All spends pages devoted to lengthy
Medrano's
statements
inconsistencies,
almost
to
none
police
of
and
this
what
he
supporting
argument addresses his claim that he believed Medrano was biased
towards him, or that counsel was ineffective for failing to
interview her or cross-examine her on that basis.
At most, Ali
simply repeats that Medrano was fearful for her life and was
biased against him.
to
identify
decision.
any
(See, e.g., ECF No. 26-5, at 5.)
error
in
the
Supreme
Court
of
Ali fails
Virginia's
Because Ali fails to demonstrate any deficiency of
counsel or resulting prejudice. Claim One will be dismissed.
23
C.
Claim Three - Failure To Question Medical Experts
In Claim Three, All contends that "[c]ounsel didn't [(a)]
examine the medical expert, Dr.
Diangelo, [and, (b)] did not
call the court-appointed expert for the defense. Dr. Fowler, who
could
testify
regarding
resulted [in] error."
could
have
would
show
Mr.
Patel's
accidental
(§ 2254 Pet. 9.)
elicited testimony from both
he
manslaughter.
was
guilty
of
nothing
death
[which]
Ali believes counsel
medical experts that
more
than
involuntary
(EOF No. 26-7, at 17.)
With respect to Claim Three(a), Ali argues that counsel
failed
to
cross-examine
Dr.
Diangelo,
who
he
believes
was
a
"bias[ed] state examiner who was helping the state to secure a
conviction," about the destruction of her notes taken during the
victim's autopsy.
(Id. at 6.)
Ali believes that because Dr.
Diangelo's report indicated that the victim died from "blunt
head trauma," and no one witnessed Ali hit the victim in the
head, if counsel had more thoroughly questioned Dr. Diangelo,
the jury would have convicted him of involuntary manslaughter,
not second-degree murder.
(Id. at 6, 17.)
In rejecting this claim, the Supreme Court of Virginia
found:
[P]etitioner
contends
he
was
denied
the
effective
assistance of counsel because counsel failed to crossexamine
the
Commonwealth's
medical
expert.
Dr.
Constance Diangelo, regarding her destruction of notes
taken during Bharat's autopsy. Petitioner appears to
24
contend
counsel
might
have
elicited
petitioner was guilty only of manslaughter,
evidence
The Court holds that this claim satisfies neither
the "performance" nor the "prejudice" prong of the
two-part test enunciated in Strickland.
The record,
including the transcript of a Septe]i±ier 9, 2013
hearing, demonstrates that counsel successfully moved
to limit Dr.
Diangelo's testimony after it was
discovered
she
destroyed
notes
she
took
during
Bharat's
autopsy.
However,
that
Dr.
Diangelo
destroyed her notes would not have been affirmative
evidence of petitioner's mens rea in connection with
Bharat's death.
Likewise, generally discrediting Dr.
Diangelo's autopsy technique or conclusions would not
have directly supported a claim that petitioner was
guilty only of manslaughter.
In any event, counsel
drew on Dr. Diangelo's conclusion that Bharat died
from blunt force trauma to the head to support his
argument that petitioner did not intentionally inflict
Bharat's mortal wound.
Petitioner has not suggested
that this defense strategy is misguided.
Thus,
petitioner has failed to demonstrate that counsel's
performance
was
deficient
or
that
there
is
a
reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been
different.
(ECF
No.
35-4,
at
85.)
The
Court
discerns
no
unreasonable
application of the law and no unreasonable determination of the
facts.
See
28
U.S.C. § 2254(d)(1)-(2).
Because
the
autopsy
report indicated that the victim died from blunt head trauma
(see Sept. 17, 2013 Tr. 267), counsel reasonably chose not to
cross-examine
Dr.
Diangelo,
but
instead
pursued
a
line
of
defense that the report demonstrated that the victim did not die
from
Ali's
use
of
the
stun
gun
or
intentional infliction of injury by Ali.
Tr.
72,
78-80.)
Counsel
argued
25
from
any
malicious,
(See Sept. 23, 2013
extensively
in
his
closing
argument that Ali lacked the requisite intent for either first
or second-degree murder.
(Sept. 23, 2013 Tr. 73-74, 80-89.)®
Ali fails to explain how any further questioning of the medical
examiner about the destruction of her notes would have had any
bearing
on
this
defense.
Accordingly,
Ali
fails
to
show
deficiency of counsel or resulting prejudice, and Claim Three(a)
will be dismissed.
In Claim Three(b), Ali contends that counsel failed to call
the
court-appointed
could
expert
testify regarding
resulted [in] error."
for
Mr.
the
Patel's
defense.
Dr.
Fowler,
who
accidental death [which]
(§ 2254 Pet. 9.)
Ali offers little more
to support this claim other than that Dr. Fowler's testimony
would have purportedly "supported the Defendant's version of the
story."
(See ECF No. 26-7, at 20.)
In rejecting Claim Three(b), the Supreme Court of Virginia
explained:
[P]etitioner
assistance
contends
of
counsel
he
was
because
denied
the
counsel
effective
failed
to
present testimony from Dr. David Fowler, a forensic
pathologist
appointed
to
assist
petitioner.
Petitioner explains Dr. Fowler reviewed Dr. Diangelo's
autopsy of Bharat and could have testified to her
"negligence" in destroying her notes, which petitioner
contends
could
have
yielded
his
conviction
for
manslaughter.
The Court holds that this claim satisfied neither
the "performance" nor the "prejudice" prong
of the
® In order to convict Ali of first-degree murder, the jury
was required to find that the murder was "willful, deliberate,
and premeditated." Va. Code Ann. § 18.2-32 (West 2018).
26
two-part test enunciated in Strickland.
As described
above, counsel relied on Dr. Diangelo's conclusions
regarding Bharat's cause of death to support counsel's
contention that petitioner
did
not intentionally
inflict the injury that killed Bharat.
Additionally,
without more, generally discrediting Dr. Diangelo
would not have yielded material evidence petitioner
killed Bharat intentionally or accidentally.
Thus,
petitioner has failed to demonstrate that counsel's
performance
was
deficient
or
that
there
is
a
reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been
different.
(ECF No. 26-6, at 85-86.)
The Court discerns no unreasonable
application of the law and no unreasonable determination of the
facts.
See 28 U.S.C. § 2254(d)(1)-(2).
Ali offers nothing more
than a vague, unsupported conclusion, that Dr. Fowler's review
of
the
medical
defense.
examiner's
report
would
have
bolstered
his
See United States v. Terry, 366 F.3d 312, 316 (4th
Cir. 2004) (observing that where a petitioner faults counsel for
not calling a witness, the petitioner should provide "concrete
evidence
of
what
[the
witness]
would
have
testified
to
in
exculpation"); Bassette, 915 F.2d at 940-41 (requiring proffer
of
mitigating
evidence
to
state
claim
of
ineffective
assistance); see also Sanders, 373 U.S. at 19 (finding denial of
habeas relief appropriate
legal
conclusions
Thus,
Ali's
terse
with
and
no
where
petitioner "stated only bald
supporting
conclusory
factual
allegations").
allegations
insufficiently
demonstrate deficient performance or prejudice under Strickland.
Accordingly, Claim Three(b) lacks merit and will be dismissed.
27
IV. CONCLUSION
For the foregoing reasons, Respondent's Motion to Dismiss
(ECF No. 33) will be granted.
All's § 2254 Petition will be
denied and his claims dismissed.
A certificate of appealabilty
will be denied.®
The Clerk is directed to send a copy of Memorandum Opinion
to All and counsel of record.
It is so ordered.
/s/
Kooeru tj.
Date:
Richmond, Virginia
fayne
Senior United States District Judge
® Buried in his attachments and labeled as an exhibit to his
§ 2254 Petition, All requests that the Court appoint an
investigator to question Medrano (ECF No. 26-9.) To the extent
that his request is properly before the Court, it will be
denied.
28
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