Chatman v. Clarke
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 9/19/2017. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
KENNETH TYRONE CHATMAN,
HAROLD W. CLARKE,
CASE NO. 7:16-cv-00540
By: Norman K. Moon
Senior United States District Judge
Kenneth Tyrone Chatman, a Virginia inmate proceeding pro se, filed this petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement
on a judgment by the Circuit Court of the City of Lynchburg. Respondent filed a motion to
dismiss Chatman’s § 2254 petition, and Chatman responded, making the matter ripe for
disposition. After review of the record, I will grant the motion to dismiss, and deny a certificate
I. Factual & Procedural Background1
On the night of October 6, 2008, Leta Campbell was driving around Lynchburg with
Quinton Austin, Khiry Withers, and William Mitchell. Around 10 P.M., Quinton Austin, cousin
to both Petitioner Chatman and Chatman’s brother Chris Austin, asked Campbell to stop by his
grandmother’s house on 209 Charlotte Street. Campbell parked about two houses down the
block. Mitchell and Campbell stayed in the car while Quinton Austin and Withers got out and
entered the residence.
Later, Chatman and Chris Austin arrived and entered 209 Charlotte Street. Chris Austin
had an ongoing disagreement with Quinton Austin and Withers. A verbal dispute broke out,
Chatman pleaded guilty; therefore, I have utilized the Commonwealth’s proffer of
evidence at the guilty plea hearing for the factual and procedural background. See Guilty Plea
Hr’g Tr. 6-11 (Feb. 26, 2009).
which continued out into the yard. As Quinton Austin and Withers headed toward Campbell’s
car, gun shots rang out.
Chatman and his brother, Chris Austin, were standing in the yard, with at least one of
them firing down the street at Quinton Austin and Withers. As Quinton Austin and Withers fled,
both were shot in the buttocks area. Multiple bullets struck Campbell’s vehicle; one of the
bullets shattered the rear window, passed through the vehicle, and exited the front windshield.
Campbell was in the driver’s seat and Mitchell was in the back seat when a bullet passed within a
foot of Campbell’s head.
During the shooting, Chatman fired a fatal shot into the back of Chris
A police investigation indicated that all of the shots fired that night came from inside the
fenced-in area on 209 Charlotte Street. Police found nine shell casings on the front step area of
the residence. Investigator Colin Byrne determined that five casings had been fired from a nine
millimeter semi-automatic firearm and four casings had been fired from a .380 semi-automatic
Police Major Wayne Duff was nearby and stopped Campbell’s vehicle, which had the
windows shot out. Officers searched the car and its occupants: Campbell, Mitchell, Quinton
Austin, and Withers, but no weapons were found. Once the police had time to interview
everyone in the vehicle and examine the physical evidence, police determined that Christopher
Austin and/or Chatman had been shooting down the street at Withers and Quinton Austin, and
that Chatman had accidentally shot Chris Austin in the back of the head, killing him.
On October 7, Chatman voluntarily went to the police station to speak to investigators
J.T. Loyd and R.W. Moore.2 That interview was taped and transcribed. At first, Chatman
claimed that Chris Austin had done all of the shooting. Chatman stated that Chris Austin began
firing a .380 semi-automatic handgun, and that when the .380 jammed, Chatman tried to help his
brother by clearing the weapon while Chris Austin resumed shooting with a nine millimeter
handgun. However, as the interview continued, Chatman acknowledged that he and his brother
both had guns and that they were both shooting when Chris Austin was hit in the cross fire.
Dr. Amy Tharp of the Medical Examiner’s Office conducted the autopsy on Chris Austin.
In that report, Dr. Tharp indicated that Chris Austin died from a gunshot wound to the back of
the head. She further indicated that the bullet traveled from a left to right direction and at a
slightly downward angle. Tharp’s findings are consistent with Chatman killing Chris Austin
while both of the brothers fired weapons.
Chatman pled guilty to felony-homicide, malicious wounding, maliciously shooting into
an occupied vehicle, two counts of use of a firearm during the commission of a felony, and
possession of a firearm by a convicted felon.
He was sentenced to forty-seven years of
imprisonment, with seventeen suspended.
Notably, Chatman did not appeal his convictions, but in 2010, he filed a habeas petition
in state circuit court. The court dismissed his petition, and Chatman did not appeal the dismissal
to the Virginia Supreme Court. Chatman also filed a § 2254 petition in 2012, which Judge
Wilson dismissed without prejudice for failing to exhaust state remedies.
Some documents state that the police interview occurred on October 9, but Investigator
Loyd confirmed that the interview occurred the day after the shooting, on October 7, 2008.
Proceeding Tr. 106-07 (Dec. 10, 2008).
II. Current Claims
On November 15, 2016, Chatman filed the present petition, alleging three claims. First,
he alleges he is actually innocent of the crimes to which he pled guilty. He relies upon what he
calls “new evidence” in the form of a sworn affidavit from an actual victim, Withers, stating that
Chatman did not shoot him, nor did he shoot a firearm. Chatman claims that this “new evidence”
was not available at trial, and that such evidence supports his factual innocence to the extent that
no reasonable juror would have found him guilty beyond a reasonable doubt. Next, he claims
that Counsel was ineffective for coercing him into pleading guilty to crimes of which he was
actually innocent, and where there was no evidence available to the Commonwealth to establish
his guilt. Finally, he alleges that Counsel was ineffective for failing to challenge a fatal defect in
the indictment for the charge of use of a firearm during the commission of a murder where the
indictment failed to give petitioner notice of the charge against him, and counsel coerced him
into pleading guilty on that charge.
A. Statute of Limitations
Chatman’s petition is time-barred. Under § 2244(d)(1), a petitioner must file his federal
habeas petition within one year from the latest of when: (1) his conviction became final at the
conclusion of direct review or the expiration of the time for seeking such review, (2) any illegal
state created impediment to filing was removed, (3) the United States Supreme Court recognized
a new, retroactively applied constitutional right, or (4) the factual predicate of the claim could
have been discovered through due diligence. 28 U.S.C. § 2244(d)(1).
A petitioner can “toll” the federal habeas statute of limitation in two ways: statutory
tolling and equitable tolling. Statutory tolling occurs when a petitioner files a state habeas
petition within the federal statute of limitation period. The federal limitation period is then tolled
for the duration of the state habeas proceeding and any subsequent appeal.
28 U.S.C. §
2244(d)(2). Equitable tolling occurs only if a petitioner shows “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544, U.S. 408, 418 (2005)).
Chatman’s petition has offered no evidence to warrant tolling of any kind. The circuit
court convicted Chatman on April 24, 2009. The conviction became final on May, 25, 2009,
when he failed to appeal within thirty days. By the time he filed a habeas petition in the circuit
court on April 29, 2010, 340 days of the federal limitations period had already run. On August 2,
2010, the circuit court denied his petition and Chatman failed to appeal to the Virginia Supreme
Court. Therefore, the federal habeas statute of limitations began to run again and expired later in
2010.3 Chatman did not file the present petition until November 2016, more than six years later.
Nevertheless, Chatman claims that his petition is timely because Withers’s November
9th, 2015 affidavit4 is “new evidence” that resets the habeas statute of limitations under
§ 2244(d)(1)(D).5 Withers’s affidavit, however, is not “new evidence.” At the December 10,
2008 proceeding, defense counsel asked Withers: “You never saw Kenneth Chatman with any
Chatman’s 2012 § 2254 petition was already untimely, and does not affect the current
In the affidavit, Withers “ask[s] that the charge of malicious wounding be vacated on the
defe[n]dant Kenneth Chatman Jr., Reasons being, because I, Khiry Withers didn’t see the
defendant with a gun nor did I see the said defendant shooting on the night of the incident.”
Withers Aff. 1, ECF No. 1, Attach. 1.
Section 2244(d)(1)(D) states: “A 1-year period of limitation . . . shall run from . . . the
date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.”
kind of weapon, did you?” Proceeding Tr. 46 (Dec. 10, 2008). Withers responded: “No, I
didn’t.” Id. Defense counsel continued: “And you don’t know who shot you?” Id. at 48.
Withers replied: “No. That’s why I want the charges dropped from . . . Mr. Chatman. I know
he, he ain’t shoot me for a fact, so I would like the charges dropped from him, if y’all don’t
mind.” Id. Wither’s affidavit is no more than a repeat of his testimony—not new evidence.
Chatman had knowledge of the information contained in Withers’s affidavit in 2008, seven years
before his alleged “discovery.” Therefore, since Chatman fails to present any new evidence that
would reset the statute of limitations under § 2244, I conclude that Chatman’s petition is timebarred.
B. Consequences of a Guilty Plea
The United States Court of Appeals for Fourth Circuit has instructed district courts to
generally dismiss habeas petitions that contradict the plea colloquy. See States v. Lemaster, 403
F.3d 216, 221-22 (4th Cir. 2005) (“[I]n the absence of extraordinary circumstances, the truth of
sworn statements made during a Rule 11 colloquy is conclusively established, and a district court
should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies
on allegations that contradict the sworn statements.”).
At the threshold, Chatman fails to demonstrate “extraordinary circumstances” that would
invalidate his guilty plea. Id. at 221. At his plea hearing, Chatman told the circuit court that he:
pleaded guilty, understood the plea, was satisfied with the services of his attorney, and was
pleading guilty because he was, in fact, guilty. Guilty Plea Hr’g Tr. 4-5 (Feb. 26, 2009). He also
failed to object to the Commonwealth’s proffer of evidence, which included a statement that
Chatman had told police that he had both assisted his brother in shooting the victims and
personally shot at them himself.
Chatman fails to establish “extraordinary circumstances” that would justify invalidating
his sworn representations at the plea colloquy, and he does not factually or legally substantiate
his claims of coercion and lack of notice.6 Therefore, I conclude that Chatman’s petition is
barred. See Lemaster, 403 F.3d at 216.
C. Exhaustion and Procedural Default
Additionally, Chatman’s petition is procedurally defaulted because he failed to properly
exhaust his claims. “[A] federal court may not grant a writ of habeas corpus to a petitioner in
state custody unless the petitioner has first exhausted his state remedies by presenting his claims
to the highest state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing 28
U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). To meet the exhaustion
requirement, a petitioner “must have presented to the state court both the operative facts and the
controlling legal principles.” Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002) (internal
quotation marks and citation omitted). “A claim that has not been presented to the highest state
court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally
barred under state law if the petitioner attempted to present it to the state court.” Baker, 220 F.3d
at 288 (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)).
Chatman never presented his claims to the Virginia Supreme Court, and it is now too late
to do so under Va. Code § 8.01-654(A)(2). Therefore, his claims are simultaneously exhausted
and defaulted under Baker.
“Bare allegations” of constitutional error are not sufficient grounds for habeas relief; the
petitioner must proffer evidence to support his claims. Nickerson v. Lee, 971 F.2d 1125, 1135
(4th Cir. 1992).
D. Excuse for Default
Chatman has not provided any evidence that his procedural default should be excused. “If
a claim is defaulted, then petitioner must fail on that claim unless he can show that cause and
prejudice or a fundamental miscarriage of justice might excuse his default.” Bell v. True, 413 F.
Supp. 2d 657, 676 (W.D. Va. 2006) (citing Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir.
1998)). Plaintiff fails to provide any evidence for either test delineated in Bell, cause and
prejudice or fundamental miscarriage of justice, thus the procedural bars to his claim remain.
In order to show the cause and prejudice required to excuse a procedural default, the
“cause” prong requires a petitioner to demonstrate that there were “objective factors,” external to
his defense, which impeded him from raising his claim at an earlier stage. Murray v. Carrier,
477 U.S. 478, 488 (1986). A petitioner must show that “the factual or legal basis for the claim
was not reasonably available to the claimant at the time of the state proceeding.” Roach v.
Angelone, 176 F.3d 210, 222 (4th Cir. 1999) (citing McClesky v. Zant, 499 U.S. 467, 494
(1991)). “[T]he ‘cause and prejudice’ test is framed in the conjunctive, the absence of cause
makes unnecessary an inquiry into prejudice.” Davis v. Allsbrooks, 778 F.2d 168, 176 (4th Cir.
1985). Chatman cannot demonstrate cause because (1) he has not alleged that an objective factor,
external to his defense, impeded him from raising his claims at an earlier stage, and (2) the facts
underlying Chatman’s claims existed and were discoverable in December 2008, two months
before he pleaded guilty. See Vinson v. True, 436 F.3d 412, 417 (4th Cir. 2006). Therefore,
Chatman has failed to establish the “cause” required to avoid a procedural default under the
“cause and prejudice” test. Moreover, since Chatman fails to establish “cause,” it is unnecessary
to inquire into the prejudice prong. See Davis, 778 F.2d at 176.
Alternatively under Bell, a fundamental miscarriage of justice can also excuse procedural
default, and the § 2244 time-bar, in a case of actual innocence. See Schlup v. Delo, 513 U.S. 298,
316 (1995); McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013). A petitioner is permitted to
claim actual innocence by providing new evidence that “must establish sufficient doubt about [a
petitioner’s] guilt to justify the conclusion that his [incarceration] would be a miscarriage of
justice unless his conviction was the product of a fair trial.”7 Schlup, 513 U.S. at 316 (emphasis
in original). Chatman submits Withers’s 2015 affidavit as “compelling new evidence” of his
actual innocence, but the affidavit is neither “new” nor compelling. First, the affidavit mirrors
testimony that Withers made at Chatman’s 2008 hearing. Second, Withers’s affidavit does not
exculpate Chatman. Instead, Withers merely confirms that, while fleeing gunfire on the night of
October 6, 2008, Withers did not see Chatman holding or shooting a gun. Withers never
purports to have personal knowledge that (1) Chatman never shot a firearm during the
altercation, or that (2) Chatman did not aid Chris Austin in shooting the victims. Therefore,
Chatman has not proved by a preponderance of the evidence that no reasonable juror would have
found him guilty beyond a reasonable doubt. His additional claims alleging and pertaining to
actual innocence are likewise without merit.
The Court must examine all evidence and make a holistic threshold determination about
the petitioner’s claim of innocence separate from its inquiry into the fairness of his trial. See
Teleguz v. Pearson, 689 F.3d 322, 330 (4th Cir. 2012). The Court may consider: the nature of
evidence, House, 547 U.S. at 537, the timing of submissions, McQuiggin, 133 S. Ct. at 1928, the
credibility of witnesses, House, 547 U.S. at 537, 552, and the probative force of the newly
supplemented record. House, 547 U.S. at 538; Sharpe v. Bell, 593 F.3d 372, 381 (4th Cir. 2010).
After performing this analysis, the district court must determine whether “it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 328. While a district court may have greater difficulty determining the
credibility of evidence on a “cold record,” the Fourth Circuit has allowed district courts to
conclude that the evidence is inadequate or unreliable enough to dismiss the petition without an
evidentiary hearing. See Pearson, 689 F.3d at 331.
Therefore, after review of the supplemented record, I conclude that Withers’s affidavit
and claims of legal insufficiency cannot satisfy Schlup’s rigorous burden of compelling new
evidence. Therefore, I conclude that Chatman has failed to establish a colorable claim of actual
innocence that would entitle his time-barred and defaulted claims to receive federal habeas
For the reasons stated, I will grant the motion to dismiss. Chatman’s petition is
unreviewable under Lemaster, time-barred, procedurally defaulted, and ultimately without merit.
An appropriate order will follow.
The Clerk is directed to send copies of this memorandum opinion and accompanying
order to Chatman and to counsel of record for Respondent.
Furthermore, concluding that
petitioner has failed to make a substantial showing of the denial of a constitutional right as
required by 28 U.S.C. § 2253(c)(1), a certificate of appealability will be denied.
ENTER: This _____ day of September, 2017.
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