Petition for Writ of Certiorari — Lester B. Lynch, Petitioner v. Beth Cabell, Warden

SUPREME COURT OF THE UNITED STATES

LESTER B. LYNCH,

RECORD NO:

Petitioner — Appellant,

V.

BETH CABELL, WARDEN,

SUSSEX II STATE PRISON,

Respondent — Appellees.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

PETITION FOR WRIT OF CERTIORARI

Edward A. Fiorella, Jr., Esquire Rosemary V. Bourne, Esquire

VSB # 26176 VSB #41290

Fraim & Fiorella, P.C. Office of the Attorney General

Town Point Center, Suite 601 202 N. 9th Street

150 Boush Street Richmond, VA 23219

Norfolk, VA 23510 (804) 786-4820 (phone)

(757) 227-5900 (phone) (804) 371-0151 (fax)

(757) 227-5901 (fax) rbourne@oag.state.va.us

eafiorella@ff-legal.com Counsel for Respondent

Counsel for Petitioner

1. Question Presented

1. Were the petitioner’s 5th and 14th Amendment rights violated when the

Commonwealth failed to provide the trial court with exculpatory evidence?

a. Did the trial court err in failing to consider the Petitioner’s initial Post-

Trial Brief in its ruling?

b. Did the trial court err in considering only Attorney Anderson’s hearing

testimony in denying Petitioner's Writ of Habeas Corpus?

c. Did the trial court err in holding that the Petitioner did not meet the

burden of proving that the Commonwealth suppressed the statements

at issue?

2. Did the trial court err in interpreting Strickler v. Greene, 527 U.S. 268, 119

S. Ct. 1936 (1999) to require a Petitioner for Writ of Habeas Corpus to carry

the burden to prove that the evidence was suppressed?

I. Corporate Disclosure Statement

Pursuant to Rule 29.6 of his Court’s Rules, Petitioner Lynch states that he

has no parent company, and no publicly held corporation owning 10% or more of

any parent company’s stock.

II. List of All Proceedings

Norfolk Circuit Court, No. CRO1003499-00/01/02/03/04/05, Commonwealth v.

Lester Bernard Lynch, Jr., October 7, 2002, March 24, 20038.

Norfolk Circuit Court, No. CRO1003499-12/13/14/15/16/17, Commonwealth v.

Lester Bernard Lynch, Jr., December 12, 2003.

Lester Bernard Lynch, Jr. v. Commonwealth of Virginia, 46 Va. App. 342,

617 S.E.2d 399 (20085).

Lester Bernard Lynch, Jr. v. Commonwealth of Virginia, 272 Va. 204, 630

S.E.2d 482 (2006).

Norfolk Circuit Court, No. CL17-588, Lester B. Lynch, #1162173 v. Beth

Cabell, Warden, Sussex II State Prison, October 11, 2018.

The Supreme Court of Virginia, Record No. 190048, Lester B. Lynch v. Beth

Cabell, Warden, Sussex II State Prison, February 13, 2020.

ll. TABLE OF CONTENTS

TABLE OF AUTHORITIES. .............cccccceceeeeeeee eee seeeneeenseeneeeeeegeeeecereseeecseeeeeegees il

OPINIONS. BELO W naniacssssiasiaisssors vaaserenr os waitinnss Si GSns Has oss eaaneiacadsasmmeieinie waibuisiaaeeslelageieawens 1

JURISDICTION seicsssscrewanvserassnas srmmcaamcrcanweneemmeononccweenaneeienenecsmeons sennesimeseanmensnne il

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED...................5665 1

STATEMENT OF THE CASE wsscsscccscvsscsrpisnansascesissasescessscseansses vera onsvcanssuwana 5

PANT GHTCIINNISINT EI arses nceseuceseocorc sear eoarseamem eters eas encanta care aaa oCNTONCONe Ie mace 12

I. Petitioner was denied his 5th and 14th Amendment rights when the

Commonwealth failed to disclose exculpatory evidence................0.c:e008 12

a. The trial court erred in failing to consider the Petitioner’s initial Post-

Trial Brief in its ruling.............cccec cece eee eeenee cee nen eee ssteeene see seeseeeees 12

b. The trial court erred in considering only Attorney Anderson’s hearing

testimony in denying the Petitioner’s Writ of Habeas Corpus............ 14

c. The trial court erred in holding that the Petitioner did not meet his

burden of proving that the Commonwealth suppressed the statements

At ISSUE. .... .ssasss:swsiswswnawaaeaiieassnmceuenneceeeenw aearE Senden eMMDNON a NER MENS ER TEENS « 16

ll. Strickler v. Greene, 527 U.S. 263 (1999) should not require a Petitioner for Writ

of Habeas Corpus to carry the burden to prove that the evidence was suppressed in

cases in which the Commonwealth or the State is in the best position to prove that

the evidence WES PLOGMEEE we sccxwumeaeaemernexemne creecanneniens ome nese Des sume KaMaeeeeMMNEES 24

CONCLUSION onocsaneynencnns soassilbtlite Gs obs eR eGR «ceReswaatiaib ne iy slate ins pom eeRbaed te sieincinasclineeans 26

CERTIFICATE OF SER VAG Biss sicvscossmnccconsaenseanaane nocsansnssaamencoaankonoikmenennnasennenss 28

APPENDIX. ............. ccunnsermenanenaeemensanmnannny stand d Ste NBS Ph Ga RUNED Mba RENCE LTPP ANA RG en Be UEESS la

Order of the Supreme Court of Virginla...............ccccee cee eeeeeeeeeeeeeeerseseteeees la

Order of the Norfolk Circuit Court Denying Habeas.................cccceceeeeeee ees 6a

Felony Trial Order October 17, 2002..............c cece cece eee see een cee eeeeesenenesees 8a

Felony Trial Order March 28, 2003......... sissssnssssinnarranssrarsamennesveasees 10a

Felony Trial Order July 9, 20038............. sssisesswsammavacracaanaeveacswarwereries... 12a

Sentencing Order ssessssissnpasvecsoresten vossavnsasssanvcowsussveenuavesesccvaweweweneuies « 14a

Lester Bernard Lynch, Jr. v. Commonwealth of Virginia, 46 Va. App. 342,

617 S.E.2d 399 (2005).........-+- ssnnenennnesnendsinsiiauligitny Sia bas tudes bias hsbstessivendita 16a

Lynch v. Commonwealth, 272 Va. 204, 630 S.E.2d 482 (2006)............008 26a

Nonsuit Order............ccccec eee eeceneeee eee eeeeeaeceneaeeeeeneeegensesneteneneeeeeeeser® 30a

Petition for Writ of Habeas Corpus............ccccceeeecnececeeeeeeneeeeeeeeneeeeeceneres 32a

First Affidavit of George Anderson............c.cceceeeeeeaeeeneeeeeneneneeanetnenseeees Ala

Supplemental Affidavit of George Anderson............sc:cseeeeeneeeeeseenensesneees 44a

Discovery Letter September 27, 2001............ccccceeceeeeeeeeeeeeeeeeeeesenensertees Ava

Letter Disclosing Statements. ............:.ceccee ese eeeeeceeeeeeeeeeeeeeensaseeeeenee seen: 49a

R. Scott’s Statement to Police (1)..........ccccscceceeeeceseseeeee ene eeeereeeeseaeeeeeeses 50a

R. Scott’s Statement to Police (2)............cssccsseceeeeeesestesceeseseceesscaseseeseees 6la

T. Reid Statement to Policesssiissaicecsnasncevegraewadescsseassempima desea emaesssmencsense 76a

K. Parker Statement to Policesssisssssssssscesenscicasisasinanises seiaelan sswisn¥iennistis sluiideens’ 87a

First Trial Transcript........... .acgeddassuusssdsadisnasoceigs sasisnseen sce aibiedleaianss 104a—479a

Second Trial Transcript. ....... .cssssssuuaersssiessinessiasesecusmcsaicnccaaianssees 480a—721a

Third Trial Transcript. ......ssaseswosssiesneovpeareden saciinsacwesiceuaasaraccauee 722a-1139a

Habeas Hearing Transcriptisissssesviscssvesicscncsniucancnucamunaiweceuress 1140a-1219a

Petitioner’s Memorandum in Support of Habeas Corpus............ 1220a-1237a

Petitioner’s Reply Brief............ 0.0... cece sec cee eee ee cee eeeeeeeeesneneeeas 1238a-1247a

IV. TABLE OF AUTHORITIES

CASES

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)

rere reer errr erent ery eer ee errr e terrae 6, 8, 10, 11, 17, 21, 23-25

Chesson v. Commonwealth, 216 Va. 827, 832, 223 S.E.2d 923, 926 (1976)

SIUiNaeRORITT A aeRO Ra RHEIN SIO ERIN ALOE RULE IREE SEER RAGE Os eR ERRNO NNRAIOMTHOS SRNR 13,15

Kyles v. Whitley, 514 U.S. 419, 439, 115 S. Ct. 1555, 1568 (1995)... eeeeeee es 17

Lynch v. Commonwealth, 272 Va. 204, 630 S.E.2d 482 (2006)...........ccceseesseneees 8

Lynch v. Commonwealth, 46 Va. App. 342, 617 S.E.2d 399 (2005)..........cceceeeeees 8

Smith v. Cain, 565 U.S. 73, 76-77, 182 S. Ct. 627, 630-31 (2012)... 22-23

Spratley v. Commonwealth, 154 Va. 854, 864, 152 S.E. 362, 365 (1930)

ssaWeeraanwatbalae VeameNESEREeN Aaa Ue NUNES ISSWBENENNS HORSES RENNNNMUENT TES TUNER EER TaNN EES 13, 15

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999)

corey... CEeee .. 2eeeer... Seer... 2eceee)... Ceeey ... eee... Serer... .eereererre oeee 17, 24-25

United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976).............. la,

United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985)........... 17

Westgate at Wiliamsburg Condo. Ass’n v. Philip Richardson Co., 270 Va. 566,

574, 621 S.E.2d 114, 118 (2005)... cecccccc eee neeceeceeeeeesue sea eeeneeeaeeeness 13, 14-16

Zemene v. Clarke, 289 Va. 303, 306, 768 S.E.2d 684, 686 (2015)............. 13, 14, 16

Vv. Opinions Below

Norfolk Circuit Court, No. CL17-5838, Lester B. Lynch, #1162173 v. Beth

Cabell, Warden, Sussex II State Prison, October 11, 2018, App. 6a—7a.

The Supreme Court of Virginia, Record No. 190048, Lester B. Lynch v. Beth

Cabell, Warden, Sussex II State Prison, February 13, 2020, App. la—5a.

VI. Jurisdiction

The Supreme Court of Virginia affirmed the Norfolk Circuit Court’s judgment

on February 13, 2020. Mr. Lynch invokes this Court’s jurisdiction under 28 U.S.C. §

1257, having timely filed this petition for writ of certiorari within ninety days of the

Virginia Supreme Court’s judgment. The Petitioner intends to file an application for

the Federal District Court in addition to filing this Petition to the highest Court.

VII. Constitutional Provisions and Statutes Involved

United States Constitution, Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual service in time of war or public

danger; nor shall any person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

United States Constitution, Amendment XIV

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges

and immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny any person

within its jurisdiction the equal protection of the laws.

United States Constitution, Article I, Section 9, Clause 2

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety may require it.

28 U.S.C. 2254

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United States.

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears

that—

(A) the applicant has exhausted the remedies available in the courts of

the State; or

(B) G) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement

or be estopped from reliance upon the requirement unless the State, through

counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in

the courts of the State, within the meaning of this section, if he has the right under

the law of the State to raise, by any available procedure, the question presented.

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the 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 proceedings.

(e) (1) In a proceeding instituted by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State

court proceedings, the court shall not hold an evidentiary hearing on the

claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by

clear and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

(f) If the applicant challenges the sufficiency of the evidence adduced in such State

court proceeding to support the State court’s determination of a factual issue made

therein, the applicant, if able, shall produce that part of the records pertinent to a

determination of the sufficiency of the evidence to support such determination. If

the applicant, because of indigency or other reason is unable to produce such part of

the record, then the State shall produce such part of the record and the Federal

court shall direct the State to do so by order directed to an appropriate State

official. If the State cannot provide such pertinent part of the record, then the court

shall determine under the existing facts and circumstances what weight shall be

given to the State Court’s final determination.

(g) A copy of the official records of the State court, duly certified by the clerk of such

court to be a true and correct copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by the State court shall be

admissible in the Federal court proceedings.

(h) Except as provided in section 408 of the Controlled Substances Act, in all

proceedings brought under this section, and any subsequent proceedings on review,

the court may appoint counsel for an applicant who is or becomes financially unable

to afford counsel, except as provided by a rule promulgated by the Supreme Court

pursuant to statutory authority. Appointment of counsel under this section shall be

governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral

post-conviction proceedings shall not be a ground for relief in a proceeding arising

under section 2254.

STATEMENT OF THE CASE

On June 9, 2001, three men entered the home of Belinda Scott. One of the

men shot and killed Ms. Scott. Two of the men then entered the bedroom of Ms.

Scott’s son, Ronald Scott. Ronald Scott and his friend, Tamika Reid, were in the

room. The two men then threatened Mr. Scott and Ms. Reid with a gun, stole

money, and heroin from the room, and fled the scene.

Petitioner avers that Norfolk Detective Robert Glenn Ford first contacted him

regarding the shooting before Petitioner became a suspect.) (App. 32a, {| 22.) Ford

asked for Petitioner’s cooperation as a witness against Kenneth Parker and another

unknown suspect. (/d.) Petitioner told Ford that he was unable to assist because

he had no knowledge of the shooting nor who may have been involved. (/d.) It was

at that time that Petitioner became a suspect in the eyes of law enforcement. (/d.)

Petitioner was charged with First Degree Murder, Burglary, Robbery, and

three counts of the Use of a Firearm in the Commission of a Felony in the Circuit

Court for the City of Norfolk. Petitioner pled not guilty to all charges.

Petitionev’s trial counsel, Attorney George Anderson, filed a Motion for

Discovery and Inspection and a Motion for Exculpatory Evidence on August 16,

2001. The Motion for Exculpatory evidence specifically requested any and all

exculpatory evidence in accordance with Brady v. Maryland, 373 U.S. 83 (1963).

Id.)

1 Detective Ford is currently serving a 12.5 year federal sentence for extortion and

lying to the FBI regarding his illegal activities during criminal investigations while

employed as a Detective with the Norfolk Police Department. At this time,

Petitioner is unaware what, if any, involvement Ford had with the making of the

tapes in question. The trial court denied the Petitioner the ability to inquire into

Ford’s involvement in these matters at the evidentiary hearing.

In response to Petitioner's request, the Commonwealth produced a number of

discovery items to Petitioner’s trial counsel on September 27, 2001. (App. 47a.) The

recorded witness statements were neither identified in the discovery letter filed

with the court, nor were they provided to defense counsel. (See id.) Rather than

producing the statement, the Commonwealth briefly paraphrased the statements in

a discovery letter without stating that there were four recorded and transcribed

statements of these cooperating Commonwealth witnesses. (/d.)

Petitioner was subject to three jury trials. The first trial was held from

October 2, 2002 through October 7, 2002. (App 104a—479a.) The prosecution relied

solely on the testimony of witnesses Ronald Scott, Tamika Reid, and Kenneth

Parker. (Jd) At the close of trial, the jury was unable to make a unanimous

decision on any of the indictments. (App. 8a—9a.) The Court again declared a

mistrial. (/d.)

The second trial was held from March 18, 2003 through March 24, 2003.

(App. 480a—721a.) The prosecution, again, relied solely on the testimony of

witnesses Ronald Scott, Tamika Reid, and Kenneth Parker. (Jd) At the close of the

trial, the jury was unable to make a unanimous decision on any of the indictments.

(App. 10—11a.) The court declared a mistrial. (/d.)

The third trial was held from April 29, 2003 through May 1, 2003. (App.

722a—1139a.) Once more, the prosecution relied solely on the testimony of

witnesses Ronald Scott, Tamika Reid, and Kenneth Parker. (/d.) At the close of the

trial, the jury found Petitioner guilty of all charges. (App. 12a—13a.) On January 5,

2004, the trial court sentenced Petitioner to 68 years in the Virginia Department of

Corrections. (App. 14a—15a.)

Petitioner filed a Notice of Appeal on January 9, 2004. At that time,

Petitioner argued that the trial court erred in admitting the hearsay evidence of the

prosecution’s witness Kenneth Parker. The Court of Appeals of Virginia issued a

written opinion on August 16, 2005, affirming Petitioner’s convictions, finding that

the trial court did not abuse its discretion in admitting hearsay statements into

evidence. Lynch v. Commonwealth, 46 Va. App. 342, 617 S.E.2d 399 (2005); see also

App. 16a—25a.

Petitioner appealed the decision to the Supreme Court of Virginia. Petitioner

was represented by Steven Emmert, Esq. The Supreme Court of Virginia affirmed

the Petitioner’s convictions on June 8, 2006. Lynch v. Commonwealth, 272 Va. 204

(2006); see also App. 26a—29a. It should be noted that neither Petitioner nor his

counsel knew of the existence of the Brady statements while he pursued his appeal.

Petitioner filed a Petition for Writ of Habeas Corpus, pro se, in the Norfolk

Circuit Court on June 7, 2007. He argued that his detention was unlawful because

of (1) the trial court’s error in allowing the entry of hearsay statements of Kenneth

Parker; (2) inadequate investigation by police; and (3) ineffective assistance of

counsel. The Habeas Petition was dismissed on September 10, 2007.

Petitioner subsequently filed a Motion for Storage and Preservation of

Tangible Evidence pursuant to Virginia Code § 19.2-270.4:1 on March 15, 2016.

The Norfolk Circuit Court appointed the undersigned counsel to represent

Petitioner for that Motion. Counsel disclosed to the court that he did not believe

there to be any evidence which might be relevant to the Petitioner’s Motion. The

court then instructed counsel to investigate any other motions or causes of action

the Petitioner may have the right to pursue.

In response to Petitioner’s Motion for Storage and Preservation of Tangible

Evidence, the Commonwealth produced a number of evidence vouchers from the

Norfolk Police. One voucher was dated June 22, 2001 and documented the

existence of statements taken from Ronald Scott, Tamika Reid, and Kenneth

Parker. Counsel inquired about the transcription of the tapes upon learning of the

existence of the recordings and of their destruction. The Norfolk Police Department

initially told the Commonwealth that the recorded tapes of the statements were

destroyed on July 9, 2015. The department’s records indicate, however, that the

taped statements were destroyed on October 10, 2007, while Petitioner’s original

Habeas Petition was still on appeal.

Counsel inquired whether any of the statements were transcribed. The first

time that Petitioner learned of the existence of said statements was following the

Attorney General’s response to Petitioner’s Motion for Storage and Preservation of

Tangible Evidence that was filed on or about October 4, 2016. The taped

statements were not provided to Petitioner or his trial counsel, George Anderson,

Jr. (“hereafter Attorney Anderson”).

Counsel interviewed Attorney Anderson about whether he ever knew of the

existence of the recorded statements. Attorney Anderson said he did not. Attorney

Anderson signed an Affidavit on October 5, 2017, testifying that he was never

informed of the existence, nor was he provided with the four witness statements.

(App. 4la—43a.) Attorney Anderson signed a supplemental affidavit on July 11,

2018, reaffirming the content of his prior affidavit and stating that after reviewing

the transcripts of the statements, he was certain that he was not provided with the

information contained in the statements. (App. 44a—46a.)

Petitioner filed a Writ of Habeas Corpus, represented by undersigned

counsel, on January 18, 2017. Petitioner nonsuited the Habeas Petition after

argument on Respondent’s Motion to Dismiss arguing that Petitioner had failed to

prove that a Brady violation had occurred because no one knew what was on the

destroyed tapes. (App. 30a—31a.)

Petitioner refiled a Petition for Writ of Habeas Corpus on November 13, 2017.

This time Petitioner had his former trial counsel, Attorney Anderson, review, sign

and file an affidavit stating that the statements in question had never been

produced in discovery. (App. 32a—40a.)

An evidentiary hearing was originally scheduled for May 3, 2018. On May 1,

2018, two days prior, transcripts of the material witnesses’ statements to police

were finally produced to the undersigned, despite the Habeas matter having been

pending since March 15, 2016. (App. 49a.)

Counsel and Petitioner learned for the first time that the suppressed

evidence in question included two contradictory statements from Ronald Scott, one

statement from Tamika Reid, and one statement from Kenneth Parker—the only

10

three witnesses to testify against Petitioner in the three jury trials. (Jd) Each of

the statements contradicted the other, and in many aspects, contradicted their

continuous evolving trial testimony over the course of three separate jury trials.

On August 2, 2018, the trial court held an evidentiary hearing for both

parties to present evidence on the question of whether the Commonwealth

committed a Brady violation for failing to produce the transcribed statements.

Petitioner presented two affidavits from Attorney Anderson, stating that the

transcribed statements were not provided to him during his representation of

Petitioner over the course of three jury trials. (App. 4la—46a.) Attorney Anderson

testified that he never had access to the transcripts nor the details contained in the

transcripts. He added that he would have used the transcripts at trial if he had

access to them. (App. 1162a, 1164a, 1168a.) Attorney Anderson also testified that

fifteen (15) years had passed since he tried the case and that he was never able to

locate Petitioner’s file. (App. 1166a, 1193a.) Of note, although the trial prosecutor,

Ronald Batliner, was subpoenaed by Respondent for the hearing, he did not testify.

At the end of the hearing, the trial court permitted the parties submit post-hearing

briefs in lieu of oral argument.

Petitioner filed a Memorandum in Support of Petitioner’s Habeas Corpus

Petition on August 31, 2018. (App. 1220a—1237a.) In addition to Attorney

Anderson’s affidavits and hearing testimony, Petitioner’s brief discusses, at length,

the trial testimony of the three witnesses in comparison with their statements to

the police. Petitioner argued that this comparison not only showed the prejudicial

1]

nature of the statements, but also that Attorney Anderson did not have access to

the statements for use at trial.

Respondent filed a post-hearing brief on September 17, 2018, primarily

arguing that Petitioner had not proven that the government had suppressed the

statements. Petitioner filed a reply brief on September 21, 2018. (App. 1238a—

1247a.)

The trial court entered an order on October 11, 2018, denying Petitioner’s

Writ of Habeas Corpus. (App. 6a—7a.) The court’s order references consideration of

the evidentiary hearing held on August 2, 2018, Respondent’s post: hearing brief

filed on September 17, 2018, and Petitioner’s reply brief filed on September 21,

2018. (See id.) Of note, the Order does not mention Petitioner’s Memorandum in

Support of Petitioner’s Habeas Corpus Petition. In support of its ruling, the court

relied on Attorney Anderson’s testimony at the hearing that he could not recall

whether he received the police statements.

Petitioner filed a notice of appeal on October 18, 2018. The Supreme Court of

Virginia awarded an appeal on May 10, 2019. The court heard argument on

January 8, 2020. The Supreme Court of Virginia affirmed the trial court’s ruling on

February 13, 2020. (App. la—5a.)

ARGUMENT

I. Petitioner was denied his 5th and 14th Amendment rights when the

Commonwealth failed to disclose exculpatory evidence

a. The trial court erred in failing to consider the Petitioner’s initial Post-

Trial Brief in its ruling.

12

i. Legal Standard for Reviewing Habeas Decisions in Virginia

“Because entitlement to habeas relief is a mixed question of law and fact, the

habeas court’s findings and conclusions are not binding upon this Court, but are

subject to review to determine whether the court correctly applied the law to the

facts.” Zemene v. Clarke, 289 Va. 303, 306, 768 S.E.2d 684, 686 (2015). The

Virginia Supreme Court “reviewls] questions of law de novo, including those

situations where there is a mixed question of law and fact.” Westgate at

Williamsburg Condo. Ass‘n v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d

114, 118 (20085).

ii. Analysis

A trier of fact “may not arbitrarily or without any justification therefor give

no weight to material evidence, which his uncontradicted and is not inconsistent

with any other evidence in the case... .” Spratley v. Commonwealth, 154 Va. 854,

864, 152 S.E. 362, 365 (1930); see also Chesson v. Commonwealth, 216 Va. 827, 832,

223 S.E.2d 923, 926 (1976) (“[A] trier of fact may not arbitrarily or without

justification discredit evidence which is uncontradicted and not inconsistent with

other evidence in the case.”).

It is undisputed that the petitioner never received the statements recorded on

tape, nor the transcripts of the statements. (App. 47a—48a.) trial court held a

hearing on Petitioner’s Writ of Habeas Corpus on August 2, 2018. Petitioner filed a

Memorandum in Support of Petitioner’s Habeas Corpus Petition (“Memorandum in

Support”) on August 31, 2018. Respondent filed a post-hearing brief on September

17, 2018. Petitioner filed a reply brief on September 21, 2018.

In the first paragraph of its order entered October 11, 2018, the Court

outlines the sources on which it relied in denying the Petitioner’s Writ of Habeas

Corpus. It mentions the hearing, Respondent’s post- hearing brief, and Petitioner’s

reply brief. Of significance, the Court does not mention Petitioner’s Memorandum

in Support.

Petitioner's Memorandum in Support discusses at length all of the evidence

from Petitioner’s three jury trials that demonstrates that Attorney Anderson did not

have access to the statements. The evidence described in Petitioner's Memorandum

in support is not mentioned as a consideration in the trial court’s order. The trial

court’s failure to consider Petitioner’s post-hearing arguments constitutes error, and

such error cannot be deemed harmless for the reasons stated herein.

b. The trial court erred in considering only Attorney Anderson’s hearing

testimony in denying Petitioner’s Writ of Habeas Corpus.

i. Legal Standard for Reviewing Habeas Decisions in Virginia

“Because entitlement to habeas relief is a mixed question of law and fact, the

habeas court’s findings and conclusions are not binding upon this Court, but are

subject to review to determine whether the court correctly applied the law to the

facts.” Zemene v. Clarke, 289 Va. 303, 306, 768 S.E.2d 684, 686 (2015). The

Virginia Supreme Court “review|[s] questions of law de novo, including those

situations where there is a mixed question of law and fact.” Westgate at

14

Wilhamsburg Condo. Ass’n v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d

114, 118 (2005).

ii. Analysis

A trier of fact “may not arbitrarily or without any justification therefor give

no weight to material evidence, which his uncontradicted and is not inconsistent

with any other evidence in the case....” Spratley v. Commonwealth, 154 Va. 854,

864, 152 S.E. 362, 365 (1930); see also Chesson v. Commonwealth, 216 Va. 827, 832,

223 S.E.2d 923, 926 (1976) (“[A] trier of fact may not arbitrarily or without

justification discredit evidence which is uncontradicted and not inconsistent with

other evidence in the case.”).

In its order entered on October 11, 2018, the trial court references only the

fact that Attorney Anderson could not specifically recall whether he received the

statements of Tamika Reid, Ronald Scott, and Kenneth Parker in denying the

Petition for Writ of Habeas Corpus. Relying solely on that testimony, the Court

ruled that the Petitioner did not meet his burden in showing that the

Commonwealth suppressed the statements at issue or that Defense counsel did not

receive the statements.

The trial court’s analysis disregards Attorney Anderson’s testimony that he

believes he did not receive the statements because he would have undoubtedly used

the statements at trial. The record shows that none of the statements in question

were ever referred to over the course of three separate jury trials. The analysis also

ignores the content of the transcripts of the witness statements and trials which

15

demonstrate that Attorney Anderson did not have the transcripts of the statements.

Of significance, it is clear from transcript of the evidentiary hearing that Attorney

Anderson confused the transcripts of the three trials with the transcripts of the

statements made by the witnesses. (App. 1192a.)

It should also be noted that Attorney Anderson testified that fifteen (15)

years has passed since Lynch’s conviction and that he had been unable to locate his

file to review what it contained. Reviewing Attorney Anderson’s testimony clearly

reflects a witness who had a poor recollection of the details of the case given the

passage of fifteen (15) years and his inability to locate his file.

Accordingly, it was error for the trial court to only consider Attorney

Anderson’s strained memory without considering the other evidence presented that

show that the statements were never provided.

c. The trial court erred in holding that the Petitioner did not meet his

burden of proving that the Commonwealth suppressed the statements

at issue.

i. Legal Standard for Reviewing Habeas Decisions in Virginia

“Because entitlement to habeas relief is a mixed question of law and fact, the

habeas court’s findings and conclusions are not binding upon this Court, but are

subject to review to determine whether the court correctly applied the law to the

facts.” Zemene v. Clarke, 289 Va. 303, 306, 768 S.E.2d 684, 686 (2015). The

Virginia Supreme Court “reviewls] questions of law de novo, including those

situations where there is a mixed question of law and fact.” Westgate at

Williamsburg Condo. Ass’n v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d

114, 118 (2005).

16

ii. Analysis

In Brady v. Maryland, the Supreme Court of the United States held that “the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or punishment,

irrespective of good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct.

1194, 1196-97 (1963). The Court expanded the duty in United States v. Agurs, in

which it held that the duty to disclose the evidence even when the accused has not

made a request. 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976). “Impeachment

evidence ... as well as exculpatory evidence, falls within the Bradyrule.” United

States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3875, 3380 (1985).

Brady “encompasses evidence ‘known only to the police investigators and not

the prosecutor.” Strickler v. Greene, 527 U.S. 263, 281, 1198. Ct. 1936, 1948

(1999) (quoting Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 1568 (1995)).

An individual prosecutor, therefore, “has a duty to learn of any favorable evidence

known to the others acting on the government’s behalf in this case, including the

police.” Kyles, 514 U.S. at 437, 115 S. Ct. at 1568. “There are three components to

a true Brady violation: The evidence at issue must be favorable to the accused,

either because it is exculpatory or because it is impeaching; that evidence must

have been suppressed by the State; either willfully or inadvertently; and prejudice

must have ensued.” Strickler, 527 U.S. at 281, 1195S. Ct. at 1948.

17

a. The suppressed evidence was favorable to the accused

because it constituted both exculpatory and impeachment

evidence.

The testimony of the Ronald Scott, Kenneth Parker, and Tamika Reid was

the prosecution’s sole evidence linking Petitioner to the crime. The statements

taken from these individuals by the police, as discussed in detail above, were

exculpatory in not only implicating suspects other than the Petitioner to have

perpetrated the crimes, but also contained significant impeaching evidence that was

inconsistent with each statement and the witnesses’ subsequent trial testimony.

b. The evidence was suppressed by the State.

Petitioner presented the trial court with two affidavits and oral testimony

from Attorney Anderson to show that the evidence was suppressed by the

Commonwealth. The affidavits from Attorney Anderson stated that the transcribed

statements were not provided to him during his representation of Petitioner over

the course of three jury trials. Attorney Anderson again stated on direct

examination that he did not have the transcripts nor the detailed information

contained in the transcripts, and that had he been provided the transcripts, he

would have used them during the trials.

Petitioner also provided the court with the transcribed statements at issue

and transcripts from Petitioner’s three jury trials to further show that Attorney

Anderson did not have access to the transcribed statements. Petitioner then

contrasted each transcribed statement, showing both the prejudice discussed infra

and that Attorney Anderson was not provided the transcribed statements.

18

Ronald Scott gave two transcribed statements to the police. (App. 50a—75a.)

In Ronald Scott’s first statement he stated that Gregory “Tyree” Williams, his

brother Christopher “Q” Williams, and Kenneth Parker were the three individuals

who entered his room on the night that his mother was shot. (App. 50a—60a.) Scott

stated that he definitely recognized Gregory Williams and Christopher Williams

because he saw them almost every other day, and he knew their voices. (/d.) Scott

gave another statement to the police the next day, in which he stated that it was

Gregory Williams and two other men, but not Christopher Williams and Kenneth

Parker. (App. 61a—75a.)

Mr. Anderson was provided a single-paragraph account of Scott’s inconsistent

statements to the police, but this paragraph lacked the detail in the transcription of

Scott’s statements. (App. 47a—48a.) Specifically, the summary lacked Scott’s

language regarding certainty of the identities of the individuals when he made his

first statement to the police. (See id.) Accordingly, at trial, Mr. Anderson asked

Scott general questions about his changes in statements during the trials. (App.

1223a—1232a.) When Scott attempted to justify his inconsistent statements by

referring to his first statement, Mr. Anderson did not impeach him with the

transcript of his first statement. (App. 1228a—1232a.) Mr. Anderson did not

mention Scott having initially stated that he knew that Gregory Williams,

Christopher Williams, and Kenneth Parker were there because he knew each

assailant and recognized their appearance and the sound of their voices. (App.

1224a—-1226a.)

19

Scott was also inconsistent about more discrete details. In his statement to

the police, Scott stated that the first two men both had guns. (App. 1225a.) In his

trial testimony, however, Scott states that he was unsure whether the second

assailant, who he asserted was the Petitioner, had a firearm. (App. 1227a.) Scott

also told the police that the assailants were wearing scarves on their foreheads and

chins, but in the second trial Scott testifies that they were not wearing anything on

their faces. (App. 1224a, 1230a.)

Scott’s trial testimony “evolved” from his two transcribed statements

regarding the amount of heroin which was alleged to have been stolen. In his first

statement on June 9th, he said $400.00 worth was taken. (App. 56a.) In his next

statement on June 10th, he said $400.00 worth was taken. (App. 70a.) At trial, he

testified that $1,200.00 worth of heroin was taken. (App. 143a.) Additional

discrepancies include Scott describing in his second statement to the police that the

perpetrator had “golds in his mouth” and was “red skinned.” (App. 52a—54a.) Mr.

Anderson did not have access to the earlier statements, with which he could have

cross-examined the witnesses about these discrepancies. Instead of questioning

Scott about the inconsistent details of his statements, Mr. Anderson concerns his

cross-examination with characteristics of the individuals Scott remembered and

general questions about his change in story. (App. 1226a—1232a.) This is

undoubtedly based upon the single paragraph summary contained in the discovery

letter. (App. 47a—48a.)

20

The lack of questioning regarding Scott’s inconsistent statements proves that

Mr. Anderson did not have access to the transcribed witness statements. Had the

statements been produced, it would have been unconscionable for Mr. Anderson not

to have questioned, at the very least, the accounts of events that Scott gave in his

first statement to the police in relation to the account he gave in his subsequent

statement. Failure to produce the two inconsistent statements alone is sufficient to

show a Brady violation.

In addition to Ronald Scott’s inconsistent statements, witnesses Kenneth

Parker and Tamika Reed gave inconsistent statements to the police. In his

statement to the police, Parker states that someone told him that a young darkskinned individual shot the victim. (App. 1233a.) At the initial trial, Parker

testified that he told the police that the assailant was a light-skinned individual

with corn rows, which he identified as the defendant. (App. 1234a.) Then, in the

second trial, Parker definitively changed his story when he testified that the

defendant, who he identified as a light-skinned individual, was the one who shot the

victim, although the dark-skinned individual was also present. (/d.) In the third

trial—which resulted in Petitioner’s conviction—it is not clear which individual

Parker was describing when stated that Gregory had informed him that “the young

kid” just shot a woman. (App. 1234a—1235a.)

In spite of the inconsistency and lack of clarity in Parker’s testimony,

Attorney Anderson did not use Parker’s statement to the police, in which Parker

implicates a “dark-skinned” individual as the perpetrator, rather than the light-

2]

skinned individual. This was a clear change in the description of the perpetrator to

match Petitioner’s complexion. It is not reasonable to assume that Attorney

Anderson had access to the statements, but failed to make use of them in crossexamining the witnesses over the course of three separate jury trials.

In Tamika Reid’s statement to the police, she stated that Petitioner took the

gun from a darker skinned suspect after the men entered the room and that

Petitioner called the other suspect “trigger happy.” (App. 1235a-1236a.) These

statements are not only exculpatory, they are also inconsistent with Reid’s trial

testimony. (App. 1236a.) Reid stated at trial that Petitioner was the first one to

come through the door and that he had the gun at the time. (/d.) Although

Attorney Anderson cross-examines Reid regarding the events surrounding the

victim being shot, and the statements she made to the police generally, he does not

reference a single specific statement that Reid made to the police. (App. 996a—

1017a.) It is clear that Attorney Anderson did not have, and had not reviewed,

Reid’s recorded statement to the police.

iii. The suppression of the evidence was prejudicial to Petitioner’s trial.

In Smith v. Cain, a case strikingly similar to the case at bar, the United

States Supreme Court reversed and remanded a state court’s refusal of the

defendant’s post-conviction relief where contradictory eyewitness statements were

withheld from the defense. 565 U.S. 73, 77, 132 S. Ct. 627, 631 (2012). The Court

acknowledged that “evidence impeaching an eyewitness may not be material if the

State’s other evidence is strong enough to sustain confidence in the verdict.” Jd. at

22

76, 1382S. Ct. at 630. It is material, however, if the witness testimony is the only

evidence linking the defendant to the crime. /d.

The specifics contained in the statements made to the police would have cast

significant doubt on the testimony of the prosecution’s three witnesses and would

cast doubt as to whether Petitioner committed the crimes in question. It is clear

from the from the first two hung juries that the evidence was not overwhelmingly in

favor of conviction. The suppressed evidence likely would have caused the jury to

reach a different verdict. The suppression of these statements was thus prejudicial

to Petitioner’s trials. 2

Of note, the Virginia Supreme Court questioned during oral argument

whether the information that was disclosed through testimony over the course of

the mistrials compensated for the Commonwealth’s failure to disclose the

statements. This line of inquiry does not uncut the prejudicial effect off the failure

to disclose the statements for two reasons.

First, the disclosure of information over the course of the two mistrials was

vague in contrast to the content of the transcribed statements. As 1s evidenced by

witness’s trial testimony, and especially that of Ronald Scott, the witnesses were

? Of note, the trial court determined that the prejudicial element of the Brady analysis was met:

“Clearly, under these circumstances, the Petitioner has satisfied the third element of Brady in that

he was clearly prejudiced.” (App. 6a—7a.)

able to use the fact that Anderson did not have the specific language of the

statements to talk their way out of the inconsistencies.

Second, although counsel understands the view that the mistrials should not

“count” in determining whether to grant habeas, it is undoubted that the violations

of Mr. Lynch’s constitutional rights in all three trials, led to his incarceration. The

two mistrials before the petitioner’s third trial relied enormously on the testimony

of the keys witnesses who gave the undisclosed inconsistent statements to the

police. With that testimony, the juries were still unconvinced of the petitioner's

guilt. Without the credibility of the key witnesses, the jury would have had no

evidence on which to convict. With an acquittal in the first trial, the petitioner

would not have faced the second or the third trial that led to his incarceration.

II. Strickler v. Greene, 527 U.S. 263 (1999) should not require a petitioner for

Writ of Habeas Corpus to carry the burden to prove that the evidence was

suppressed in cases in which the Commonwealth or the State is in the

best position to prove that the evidence was disclosed.

Petitioner has met his burden and shown that favorable, prejudicial evidence

was suppressed by the Commonwealth. Regardless of whether this court finds this

fact, he contends that the principles set out in Brady v. Maryland require the

Commonwealth to affirmatively show that it produced the statements rather than

placing the burden upon the petitioner to prove that the statements were

suppressed. Due process dictates that this burden be on the Government to prove

that the evidence was produced.

Brady v. Maryland, and the cases that expand it, “illustrate the special role

played by the American prosecutor in the search for truth in criminal trials.”

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