Petition for Writ of Certiorari — Bruce Duane Walton, Petitioner v. Tracy Ray, Warden

FILED January 23, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6830

(3:1 7-cv-00474-JAG-RCY)

BRUCE DUANE WALTON

/

Petitioner Appellant

-

V.

MR. TRACY RAY

Respondent Appellee

-

and

MATT BAILEY, Assistant Warden

Respondent

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge King, Judge Floyd, and Senior Judge

Traxler.

For the Court

Is! Patricia S. Connor, Clerk

A'

USCA4 Appeal: 18-6830

Filed: 12/11/2018

Doc: 9

Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6830

BRUCE DUANE WALTON,

Petitioner Appellant,

-

V.

Respondent Appellee,

-

and

MATT BAILEY, Assistant Warden,

Respondent.

Appeal from the United States District Court for the Eastern District of Virginia, at

Richmond. John A. Gibney, Jr., District Judge. (3: 17-cv-00474-JAG-RCY)

Submitted: November 30, 2018

Decided: December 11, 2018

Before KING and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Bruce Duane Walton, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 18-6830

Doc: 9

Filed: 12/11/2018

Pg: 2 of 2

PER CURIAM:

Bruce Duane Walton seeks to appeal the district court's order denying relief on his

28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A

certificate of appealability will not issue absent "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2) (2012). When the district court denies

relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable

jurists would find that the district court's assessment of the constitutional claims is

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the petition states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Walton has not

made the requisite showing. Accordingly, we deny a certificate of appealability, deny

leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

DISMISSED

2

FILED: January 23, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No.. 18-6830

(3: 17-cv-00474-JAG-RCY)

BRUCE DUANE WALTON

Petitioner Appellant

-

V.

MR. TRACY RAY

Respondent Appellee

-

and

MATT BAILEY, Assistant Warden

Respondent

ORDER

al.

The court denies the motion to appoint counsel on appe

For the Court--By Direction

Is! Patricia S. Connor, Clerk

A

FILED: December 27, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6830

(3: 17-cv-00474-JAG-RCY)

BRUCE DUANE WALTON

Petitioner Appellant

-

V.

MR. TRACY RAY

Respondent Appellee

-

and

MATT BAILEY, Assistant Warden

Respondent

STAY OF MANDATE, UNDER

FED. R. APP. P. 41(d)(1)

Under Fed. R. App. P. 41(d)(1), the timely filing of a petition for

or rehearing en banc or the timely filing of a motion to stay the

rehearing

mandate stays the

mandate until the court has ruled on the petition for rehearing or

rehearing en banc

or motion to stay. In accordance with Rule 41(d)(1), the mandate is stayed pending

further order of this court.

Is/Patricia S. Connor, Clerk

IN THE UNITED STATES I)ISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

IN I 3 2018

VA

BRUCE DUANE WALTON,

Petitioner,

V.

Civil Action No. 3:17CV474

MR. TRACY RAY,

Respondent.

FINAL ORDER

In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED

that:

Respondent's Motion to Dismiss (ECF No. 9) is .GR_ANTEI).

Waltons claims arc DISMISSED. and the § 2254 Petition is DENIED.

A certificate of appealability is DENIED.

The action is DISMISSED.

Should Walton desire to appeal, a written notice of appeal must be filed with the Clerk of

the Court within thirty (30) days of the date of entry hereof. Failure to file a written notice of

appeal thay result in the loss of the ability to appeal.

The Clerk of the Court is DIRECTED to send a copy of this Final Order and the

accompanying Memorandum Opinion to Walton and counsel for Respondent.

It is so ORDERED.

Date:

Richmond, VIrginia

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 1 of 12 PagelD# 301

o

IN THE UNITE!) STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

IL IE

JUN 1320I81

CLERK, U.S. DISTRICT Cour

RICHMOND, VA

BRUCE DUANE WALTON,

Petitioner.

V.

Civil Action No. 3:17CV474

MR. TRACY RAY,

Respondent.

MEMORANDUM OPINION

Bruce Duane Walton. a Virginia state prisoner proceeding pro Se, brings this petition

§ 2254 (" 2254 Petition." ECF No. 3), challenging his conviction in the

Circuit Court of the County of l-lenrico, Virginia (hereinafter, "Circuit Court"). In his § 2254

pursuant to 28 U.S.C.

Petition. Walton argues entitlement to relief based upon the following claims:

Claim One:

"Concealment of exculpatory facts in grounds of discovery during trial

and newly lound evidence while in trial." (id. at 6.)

Claim Two: "Bill of Rights violations." (Id. at 8.)

Claim Three: "Errors in the Supreme Court of Virginia Petition for Appeal." (Id. at 9.)

Claim Four: "Errors in Statement of Facts prepared and stated in the Supreme Court of

Virginia Appeal." (Id. at 11.)

Respondent moves to dismiss on the ground that Walton's claims are procedurally

defaulted and barred from review here. Walton has filed an "Answer and Objection to Brief"

("Response." ECF No. 16). For the reasons set forth below, the Motion to Dismiss (ECF No. 9)

will be GRANTED.

]'he Court corrects the spelling. punctuation, and capitalization in the quotations from

Walton's submissions.

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 2 of 12 PagelD# 302

I.

PROCEDURAL HISTORY

After a jury trial, Walton was convicted of lirst-degree murder. one count ol felony credit

card theft, one count of felony attempted credit card theft, two counts of misdemeanor credit card

fraud, and one count of misdemeanor attempted credit card fraud. (E-Cl' No. 10-1, at 1-2.) The

jury recommended a sentence of life plus twenty-live years on the felony counts, and an

additional thirty-six months on the misdemeanor counts. (I(I at 3-4.) On March 5. 2015. the

Circuit Court imposed the sentence recommended by the jury. (Id. at 7.)

Walton appealed, arguing that the evidence was insufficient to support his conviction of

first-degree murder. (ECF No. 10-4. at I.) The Court of'Appeals of Virginia denied the petition

for appeal. (See Id.) The Supreme Court of Virginia refused the petition for appeal. (ECF

No. 10-5. at 1.) Walton did not file a petition lbr writ of habeas corpus in the state courts.

Rather, on July 18, 2017, 'Walton filed his § 2254 Petition in this Court.2 (§ 2254 Pet. 16.)

11. EXHAUSTION AND PROCEDURAL DEFAULT

Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner

must first have "exhausted the remedies available in the courts of the State." 28 U.S.C.

§ 2254(b)( 1 )(A). State exhaustion "is rooted in considerations of federal-state comity." and in

Congressional determination via federal habeas laws "that exhaustion of adequate state remedies

will best serve the policies of federalism." S!ai'ek v. IIink/e 359 F. Supp. 2d 473. 479 (E.D.

Va. 2005) (quoting PreLver r. Rodriguez. 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of'

exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations

of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (197 1 ) (internal quotation

marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available stale

2

Walton initially had a friend sign and submit it 28 U.S.C. § 2241 petition in this Court.

(ECF No. 1.) By Memorandum Order entered on July 14. 2017. the Court explained to Walton

that he must place his claims on a standardized form for filing a § 2254 petition. (ECF No. 2.)

2

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 3 of 12 PagelD# 303

remedies before he can apply for federal habeas relief'. See 0 zi/Iivaii v. Boerckel. 526 U.S. 8387

844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes

that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the

courts of the State

. . .

if he has the right under the law of the State to raise, by any available

procedure, the question presented." 28 U.S.C. § 2254(c).

The second aspect of' exhaustion requires a petitioner to have offered the state courts an

adequate opportunity to address the constitutional claims advanced on federal habeas. "To

provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in

each appropriate state court (including a state supreme court with powers of discretionary

review), thereby alerting that court to the federal nature of the claim." Baldwin r. Reese. 541

U.S. 27. 29 (2004) (quoting 1)u,wan r. Henry, 513 U.S. 364. 365-66 (1995)). Fair presentation

demands that "both the operative thets and the controlling legal principles" must be presented to

the slate court. Longworih v. Ozminl, 377 F.3d 437. 448 (4th Cir. 2004) (quoting Baker v.

Corcoran, 220 F.3d 276. 289 (4th Cir. 2000)). The burden of proving that a claim has been

exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner.

Mallory v. Smith, 27 F.3d 99 1, 994-95 (4th Cir. 1994).

"A distinct but related limit on the scope of' federal habeas review is the doctrine of

procedural default." Brec,rcl v. Prucu. 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides

that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a

state procedural rule, and that procedural rule provides an independent and adequate ground for

the dismissal, the habeas petitioner has procedurally deI.iu1ted his federal habeas claim." Id.

(citing Coleman v. Thompson. 501 U.S. 722, 731-32 (1991 )). A federal habeas petitioner also

procedurally defaults claims when the "petitioner fails to exhaust available state remedies and

3

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 4 of 12 PagelD# 304

'the court to which the petitioner would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman,

501 U.S. at 735 n. 1).3 The burden of pleading and proving that a claim is procedurally defaulted

rests with the state. Jones v. Sussex I Stale Prison, 591 P.3d 707, 716 (4th Cir. 2010) (citing

cases). Absent a showing of "cause for the default and actual prejudice as a result of the alleged

violation of federal law," or a showing that "failure to consider the claims will result in a

fundamental miscarriage of justice," this Court cannot review the merits of a defaulted claim.

Coleman, 501 U.S. at 750; see Harris v. Reed, 489 U.S. 255, 262 (1989).

To exhaust his claims, Walton was required to present properly these claims to the

Supreme Court of Virginia. If Walton now attempted to raise his claims in the Supreme Court of

Virginia in a habeas petition, that habeas petition would be barred as successive pursuant to

section 8.01-654(B)(2) of the Virginia Code,4 and as untimely pursuant to section 8.01654(A)(2) of the Virginia Code.5 Virginia's statute of limitations for habeas actions and the bar

Under these circumstances, even though the claim has not been fairly presented to the

Supreme Court of Virginia, the exhaustion requirement is "technically met." Hedrick v. True,

443 F.3d 342, 364 (4th Cir. 2006) (citing Gray v. Nether/and, 518 U.S. 152, 161-62 (1996)).

This statute provides, in relevant part:

Such petition shall contain all allegations the facts of which are known to

petitioner at the time of filing and such petition shall enumerate all previous

applications and their disposition. No writ shall be granted on the basis of any

allegation the facts of which petitioner had knowledge at the time of filing any

previous petition.

Va. Code Ann. § 8.01-654(B)(2) (West 2018).

This statute provides:

A habeas corpus petition attacking a criminal conviction or

sentence.. shall be filed within two years from the date of final

judgment in the trial court or within one year from either final disposition

.

4

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 5 of 12 PagelD# 305

on successive habeas petitions are adequate and independent procedural rules when so applied.

See Clageu v. 4ngelone, 209 F.3d 370. 379 (4th Cir. 2000); Sparrow v. Dir., Dep 'I of Corr,, 439

F. Supp. 2d 584, 587-88 (E.D. Va. 2006). In his § 2254 Petition. Walton admits that he never

raised any of' his claims in the state courts. Walton also iiiils to demonstrate any cause and

prejudice for his default or a fundamental miscarriage of justice in his § 2254 Petition.

Respondent acknowledges that under Martinez r. Ryan. 566 U.S. 1 (2012), ineffective

assistance of counsel "at initial-review collateral proceedings may establish cause for a

prisoner's procedural default of a claim of ineffective assistance at trial." IS. at

96 I Icre, as just

explained, Walton never pursued any collateral proceedings in state court. Thus. Martinez is

inapplicable here. See Jones v. Pa. Bd. of Prob. & Parole. 492 F. App'x 242. 246-47 (3d Cir.

2012) (holding that the "Martinez analysis is inapplicable where the criminal defendant did not

initiate any state collateral review proceeding whatsoever"); Pu/len r. Dir., Va. Dep '1 of C'orr.,

No. 7:14CV0021 I. 2015 WI. 159533, at *3 (W.D. Va. Jan. 13. 2015)t appeal cli.sinissed. 604 F.

App'x 284 (4th Cir. 2015) (citing .Jones and explaining that because petitioner 'did not initiate a

state habeas proceeding,

.

.

.

he cannot benefit from the Martinez exception to default of his

of' the direct appeal in slate court or the time for tiling such appeal has

expired, whichever is later.

Va. Code Ann. § 8.01-654(A)(2) (West 2018).

"

As a preliminary matter, the Court fails to discern how Martinez could apply here as

Walton raises no clear claim that trial counsel was ineffective. Buried in his attachment called

"Bill of Rights" violations. Walton provides a laundry list of vague, unsupported allegations

including that counsel was originally unprepared for trial: refused to "seek a sequestered

impartial jury," refused . o have compulsory process for obtaining witnesses," and failed to seek

a "hail/bond hearing." (ECF No. 3-5. at 3-4.) Nevertheless. Respondent generously construes

Walton to bring his first two claims under the guise of ineffective assistance of counsel, and in

his Reply, Walton adopts the claims as set forth by Respondent. Because it is of no moment, this

Court will assume that Walton intends to bring Claims One and Two as ineffective assistance of

counsel claims.

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 6 of 12 PagelD# 306

claims that trial counsel was ineffective"); Anderson v, Clarke. No. 2:13—CV-223, 2014 WL

1203032. at *5 (E.D. Va. Mar. 24, 2014).

In response to argument made by Respondent, for the first time in his Reply, Walton

argues that his actual innocence" excuses his default and his conviction for first-degree murder

would amount to a fundamental miscarriage of justice. (ECF No. 16. at

3_5,)7

Walton's actual

innocence argument is comprised mostly of case law supplied by Respondent and recited by

Walton and is short on facts to support his argument. As discussed at length below, Walton is

neither actually innocent, nor does his conviction result in a fundamental miscarriage of justice.

Ill. ACTUAL INNOCENCE

Walton may obtain review of his claims "only if he fulls within the narrow class of

cases

.

.

.

implicating a fundamental miscarriage of justice." Sc/i/np v. Delo, 513 U.S. 298, 315-

16 (1995) (quoting A'IcCleskey v. Zuni, 499 U.S. 467, 493-94 (1991)). "Claims of actual

innocence, whether presented as freestanding ones or merely as gateways to excuse a procedural

default, should not be granted casually." Wilson v. Greene. 155 F.3d 396. 404 (4th Cir. 1998)

(citations omitted).

I !ere, the Court reviews Walton's arguments under the more lenient standard for gateway

actual innocence claims, because subscribing to Walton's actual innocence claims would permit

the Court to consider the merits of his otherwise procedurally delimIted claim. A gateway claim

requires a petitioner to present 'new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented

at trial." Schiup, 513 U.S. at 324. "Because such evidence is obviously unavailable in the vast

Walton never explicitly specifies whether he intends to argue that he is actually

innocent of his first-degree murder conviction or whether he is also actually innocent of the

Crimes involving the use of the victim's credit card. 1-lowever, it appears that Walton intends to

focus solely on his alleged actual innocence of first-degree murder based on his argument and his

reference to his innocence of "this crime." (ECF No. 16, at 3.)

6

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 7 of 12 PagelD# 307

majority of cases, claims of actual innocence are rarely successful." Al If a petitioner meets the

burden of producing new, truly reliable evidence of his or her innocence, the Court then

considers "all the evidence,' old and new, incriminating and exculpatory, without regard to

whether it would necessarily be admitted under 'rules of admissibility that would govern at

trial" and determines whether the petitioner has met the standard for a gateway claim of

innocence. house v. Bell, 547 U.S. 51 8, 538 (2006) (quoting Schiup, 5 1 3 U.S. at 327-28). The

Court must determine "whether 'it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt." Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir.

2010) (quoting Schlup, 513 U.S. at 327-28). "The Court need not proceed to this second step of

the inquiry unless the petitioner first supports his or her claim with evidence of the requisite

quality.' Hi!! v. .Johnson, No. 3:09cv659, 2010 WI, 5476755, at 5 (l.l). Va. Dec. 30, 2010)

(citing Weeks v. l3owersox. 119 F.3d 1342, 1352-53 (8th Cir. 1997): Fea.rier r. Beshears. 56 F.

Supp. 2d 600. 610 (D. Md. 1999)). Moreover, -actual innocence" means factual innocence and

not just legal insufficiency. See Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citations

omitted) (internal quotation marks omitted) ("[TIRe miscarriage of justice exception is concerned

with actual as compared to legal innocence.").

On appeal, Walton argued that the evidence was insufficient to convict him of firstdegree murder. Specifically, he argued that "the evidence was insufficient to prove his identity

as the victim's killer, and alternatively that the evidence was insufficient to prove the killing was

premeditated when the Commonwealth's evidence showed that appellant was intoxicated to the

point of blacking out at the time of killing.' (ECF No. 10-4, at 1.) In rejecting his sufficiency

arguments for the first-degree murder conviction, the Court of Appeals of Virginia aptly

explained:

':1

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 8 of 12 PagelD# 308

On April 4, 2014, Jason Fuller visited the residence of his uncle, Roy

Fuller, and discovered his body. The victim had sustained 123 sharp lrce injures

to the l'acc, neck, torso, and extremities. A detective with the 1-lenrico Police

Department executed a search warrant at the home and discovered among other

things. a large amount of' cash, a check register. and three credit cards. The

detective did not find a debit card belonging to the victim or his driver's license.

Evidence adduced at trial showed that appellant used the victim's debit

card four limes to make or attempt purchases throughout the day on April 11.

Appellant did not dispute that he had used the victim's debit card, but presented

evidence and argued that the victim had given it to him.

A medical examiner performed an autopsy on the victim and came to the

conclusion that the victim had probably died between half a day and two days

before April 4, but that it would have been as much as six days before if

conditions were right in the victim's home. The victim's neighbor and friend

testified lie normally saw the victim almost every day, but that he had not seen the

victim since March 29. 1 l also testified that he had not been able to get an

answer at the victim's door. and noticed the victim's mail had begun to stack up

after March 29.

Jeffrey Edwards. who was in jail with appellant, testified appellant told

him he went to the victim's house on March 29, 2014 to borrow money, but the

victim refused to give him any money. Edwards stated appellant said he "lost

control" because he had consumed so much alcohol and then appellant "blacked

out." Edwards testified appellant said that when he awoke, lie possessed the

victim's wallet, the victim's credit card, and some cash. He stated appellant

panicked and left the residence. Edwards also stated appellant waited several

months to use the credit card, although the evidence showed appellant used the

card on April 11, 2014. Edwards also knew certain details about the victim's

residence and the crime scene, such as the presence of cash and marijuana in the

house. Edwards had felony convictions and convictions involving moral

turpitude. Charles Scott testified that he partied with Walton, who uses crack

cocaine. Walton took out a title loan on his vehicle on April 12, 2014, to get more

money ('or alcohol and drugs.

The defense attacked Edwardss credibility through the testimony of

several other inmates who stated appellant did not confess to them that he

committed any of the offenses, although they discussed the case with appellant.

In addition, one of the inmates testified he asked Edwards if he was a "snitch,"

and Edwards replied. "No," but "if it's a get-out-of-jail-free card, then he'd take

it." In addition, Edwards was released on bond after reporting his conversation

with appellant.

David Kuehi, an nTelos employee, analyzed appellant's cell phone records

and cell tower locations to determine appellant's location at relevant time periods.

Kuehl testified it was "very probable` that appellant's cell phone was turned off

from 9:19 p.m. on March 29, 2014 until 12:12 a.m. on March 30, 2014. Kuehl

stated that when the phone was turned of!, it was within the cell tower range that

serviced an area including the victim's address. Kuehl testified that when the

phone turned on again, it was just north of that location."

8

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 9 of 12 PagelD# 309

Several defense witnesses testified that on March 29. 2014, appellant

assisted in the installation of a sink at his sister's house and that appellant left his

sister's house between approximately 11:30 p.m. and midnight. Defense

witnesses stated appellant possessed the victim's credit card on that night. Some

of these witnesses also testified appellant possessed the victim's credit card in the

past. Ultimately, appellant was convicted in a jury trial of first-degree murder,

credit card theft, two counts of credit card fraud, and two counts of attempted

credit card fraud. Appellant noted his appeal.

Appellant argues the cell phone evidence failed to place him at the

victim's home on March 29, 2014 and the technology used to extrapolate that

information is not an exact science. He also asserts his use of the victim's credit

card was only a suspicious circumstance. Appellant contends Edwards' testimony

was thoroughly impeached, contained inaccuracies, and Edwards had a motive to

fabricate the testimony.

"The credibility of the witnesses and the weight accorded the evidence are

matters solely for the fact under who has the opportunity to see and hear that

evidence as it is presented." Sandoval v. Coinmoinvealili, 20 Va. App. 133, 138,

455 S.E.2d 730, 732 (1995). The conclusions drawn by the fact finder on

credibility issues may be disturbed on appeal only if the appellate court finds that

the witness' testimony was "inherently incredible, or so contrary to human

experience as to render it unworthy of belief." Fisher v. Commonwealth, 228 Va.

296. 299-300, 321 S.E.2d 202. 204 (1984). 'in all other cases, we must defer to

the conclusions of 'the fact finder[,] who has the opportunity of seeing and

hearing the witnesses." As/thy v. Commonwealth, 33 Va. App. 540, 548, 535

S.E.2d 182, 187 (2000) (quoting Schneider v. Commonwealth. 230 Va. 379, 382,

337 S.E.2d 735, 736-37 (1985)).

"While no single piece of evidence may he sufficient, the 'combined force

of many concurrent and related circumstances, each insufficient in itself, may lead

a reasonable mind irresistibly to [tile] conclusion" that the defendant is guilty.

Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808. 818 (1979)

(quoting Karnes v. Comnionwecilih, 125 Va. 758, 764, 99 S.E. 526, 564 (1919)).

The jury rejected appellant's alibi evidence in favor of the circumstantial

evidence that demonstrated his guilt. Although parts of Edwards' testimony were

impeached, portions of his testimony were corroborated by other evidence

presented in the case. Furthermore, the jury was free to believe and disbelieve in

part or in whole the testimony of any witness. Rolision v. ('ommnonwealih, 11 Va.

App. 535, 547, 399 S.E.2d 823, 830 (1991).

Edwards testified appellant wanted to borrow money f1rorn the victim, the

victim refused to give him money, and appellant "lost control." Less than two

weeks later, appellant used the victim's debit card to make purchases. Cell phone

evidence placed appellant's cell phone in the vicinity of' the crime scene on the

night of the last date the victim was seen alive. The evidence presented was not

"inherently incredible, or so contrary to human experience as to render it

unworthy of belief." See Fisher. 228 Va. at 299-300, 321 S.E.2d at 204.

"[W]e are not permitted to reweigh the evidence," Nusbaum v. Berlin, 273

Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 10 of 12 PagelD# 310

authority "to preside de novo over a second trial," /-Ia.rkin.v, 44 Va. App. at II,

602 S.E.2d at 407. Instead, we give "juries the wide discretion to which a living

record, as distinguished from a printed record, logically entitles them." Bradley v.

Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955). From the

evidence presented, the jury could have concluded appellant killed the victim.

Appellant argues, alternatively, that because Edwards testified appellant

said he had "blacked out" from consuming so much alcohol, appellant could not

have formed the intent to commit first-degree murder.

"Premeditation and formation of an intent to kill seldom can be proved by

direct evidence. A combination of circumstantial factors may be sufficient."

Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). Factors

that may be considered include "the nature and extent of the injuries inflicted

upon the deceased.

M. at 486, 384 S.E.2d at 98-99.

"[M]ere intoxication from drugs or alcohol will not suffice to negate

premeditation." Jenkins v. Comn,nonwea/ih, 244 Va. 445. 458, 423 S.E.2d 360.

368 (1992). "[S]o long as [a defendant] retains the faculty of willing, deliberating

and premeditating, though drunk, he is capable of committing murder in the first

degree; and if a drunk man is guilty of wilful, deliberate and premeditated killing,

he is guilty of murder in the first degree." Duncan v. Commonwealth, 2 Va. App.

717, 731, 347 S.E.2d 539.547 (1986).

Although Edwards testified appellant said he was drunk on the night of the

incident, the jury was not required to believe either that appellant was drunk or

that he was so intoxicated that he was unable to form the requisite intent to

commit first-degree murder. See Rb//sum. 11 Va. App. at 547. 399 S.E.2d at 830.

Furthermore, the evidence showed the victim was stabbed over one hundred times

with a sharp object. One of' the wounds entered the victim's heart, but the

medical examiner stated several of the stabs could have been fatal. The victim

then bled to death in his home. In denying appellant's motion to strike the firstdegree murder charge on the basis of appellant's intoxication, the circuit court

stated, "from the nature of the injuries and how long it would take to stab

somebody that many times, there is sufficient evidence for the first degree in

order for the charge to go to the jury." We do not disagree. From the evidence of

the nature and extent of the injuries inflicted upon the victim, the jury could infer

appellant acted with premeditation and malice aforethought. Accordingly. the

evidence was sufficient 'to support appellant's conviction, and the trial court did

not err by denying appellant's motions to strike.

. . ."

(ECFN0. 10-4,at2-6.)

Walton asserts that he is actually innocent because "no evidence presented or theory

proffered by Commonwealth singularly or combined concluded that Walton committed this

crime." (ECF No. 16, at 3.) Rather than direct the Court to new reliable evidence of his

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 11 of 12 PagelD# 311

innocence as he must, he simply continues to argue that insufficient evidence existed to convict

him. In support of his claim Walton contends:

In fact, every piece of evidence offered by Commonwealth further showed the

defendant was not the perpetrator. While it is not the burden or responsibility of

Walton to prove who committed the crime, Petitioner has risen to the bar of

exoneration, by fact, and no physical evidence, including DNA, blood, saliva,

footprints, hairs, witnesses, testimony, or any other source has put Walton as the

perpetrator, including phone pings. Edwards's testimony was completely

impeached, and therefore offered no value. Therefore, Walton has proven his

actual innocence, and should never have been held for seven months [prior] to

trial with no bond hearing, as to inflame the local community by being the most

pictured person (with articles inside) on the cover of the "Gotcha" magazine.

(Id.) Walton next argues that some unidentified clothing should have been tested, and the flict

3_4,)8

that it has not been "will result in further fundamental miscarriage of justice." (Id. at

Here, Walton directs the Court to no new reliable evidence of his innocence. Therefore, he fa ils

to establish that his alleged actual innocence permits the Court to reach the merits of his

defaulted claims for relief and his § 2254 Petition.

Moreover, as aptly set forth by the Court of Appeals of Virginia, ample evidence existed

of Walton's guilt. Walton's arguments to the contrary, simply lack merit.

8

Walton also includes a final section which makes absolutely no sense and is certainly

not new reliable evidence of his innocence. He states: "Petitioner proffered reliable evidence

supporting his claim of innocence, including but not limited to facts concealed by 'Grounds of

Ineffective counsel that placed 6XlO Billboards seeking Office of New

Discovery.'

Commonwealth Attorney at the intersection of Staples Mill Rd and Hermitage Rd. (Petitioner's

address 9001 Staples Mill Rd and victim's address 5812 Hermitage Rd. This 6X10 billboard has

been filed with Petitioner's paperwork) further creating prejudice and tainting jurors by which

the plaintiff could not overcome, whereby creating a 'fundamental miscarriage of justice."

(ECF No. 16, 4-5.)

Case 3:17-cv-00474-JAG-RCY Document 17 Filed 06/13/18 Page 12 of 12 PagelD# 312

IV. CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 9) will be

GRANTED. Walton's claims will be DISMISSED, and his

§ 2254 Petition will be DENIED.

The action will be DISMISSED. A certificate of appealability will be l)ENIED.9

An appropriate Final Order shall issue.

01

!)ate: Z

f/

Richmond, Virginia

IsI

John A. Gibney, Jr.

United States Dis ict

/

99C

"An appeal may not be taken from the final order in a § 2254 proceeding unless a judge

issues a certificate of appealability (COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue

unless a prisoner makes "a Substantial showing of the denial ol'a constitutional right." 28 U.S.C.

§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were 'adequate to deserve encouragement to proceed further." Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Bare/but r. Estelle, 463 U.S. 880, 893 n. 4

(1983)). Walton fails to meet this standard.

12

Case 3:17-cv-00474-JAG-RCY Document 8 Filed 10/10/17 Page 1 of 1 PagelD# 242

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

[OCT 10 20I1_j

BRUCE DUANE WALTON,

CLERK. U.S. DISTRICT COURT

RICHMOND. VA

Petitioner,

Civil Action No. 3:17CV474

V.

MR TRACY RAY,

Respondent.

MEMORANDUM ORDER

(Granting Extension of Time)

Respondent has moved for an extension of time to file a response to Petitioner's petition

for a writ of habeas corpus under 28 U.S.C. § 2254. Upon good cause shown, see Fed. R. Civ. P.

6(b)(1)(A), the Motion (ECF No. 7) is GRANTED to the extent that Respondent shalt file a

response within thirty (30) days from the date of entry hereof.

The Clerk is DIRECTED to send a copy of this Memorandum Order to Petitioner and

counsel for Respondent.

It is so ORDERED.

Is!

Roderick C. Young

United States Magistrate J

Date: October /, 2017

Richmond, Virginia

e

fy2

S.

I

NM

Additional material

from this filing is

available in the

Clerk's Office.