Petition for Writ of Certiorari — In Re DeVinche Javon AlBritton, Petitioner

Supreme Court briefJul 19, 2022

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VIRGINIA:

CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

COMMONWEALTH OF VIRGINIA

RECORD

CR10-3743

DEVINCHE JAVON ALBRITTON,

Defendant.

Before Hon.

Patricia L.

Virginia Beach,

June 13,

West,

judge

Virginia

2011

oOo

APPEARANCES:

Commonwea1th's Attorney's Office

(Mr. Thomas M. Murphy and

Ms. Sara R. Chandler), attorneys

for the Commonwealth.

Devinche Javon Albritton,

the defendant, pro se.

Fiduciary Reporting, Inc.

(757) 482-2729

!nH)

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i r:

vau

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s eoa

e n .e t

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you

think,

inf or ma t ic.n

might

r e £ e r e r. c e d

r e c, u e s t .

y ou

-r >, -i r V

S e -v e r a .1

a b c u t k! s .

her

chose

r.n ci

They're

ana

The

SANE

protocol

v.hien

you

thought,

let

trying

there at

i e s,

j u ci g e .

that he

Cbv i c u s 1 y ,

know,

had made

this

did m a k e

for

fa r

as,

vou

behalf of

the

hospitai.

knov.’,

request,

the .information.

the hospita 1

actually,

basically

doing these

he also requested

the SAME protocols,

tha L1s

Y ou

information,

i f memo r y se rve s ,

J ines .

then

to get that

again,

aco he

do this,

s c i c n t i f i c protocol,

trie hosoital

we11,

anywa y .

information about

m5 ke

sterile

i-J c E c n a 1 d h e r s e If a rr d w It at her

recorci was

hings .

r. k e

than

rr. c n t in.?

v; a n t e o.

tret• i

CHANDL.EF. :

is,

v c u w C1 u 1 d a s k t h e

and

d i r e : t .1 v

kept

tna t

re,

v. :'i --:

MS.

are

The

n e ce s s a r i ] v wi th

}’. I O t C C C I

I ' m a s s umi ng .

she's doing

ietenninar ion .

t.n e

fcr

t h e p r o r. o c o I .

keep everything

s a 'Vi p 1 e s

the

nr c r e

that,

' 18

w uia

.t; r orn

ex air! i n a t i o n

a r. o

a if; t n a r. r c n

:'i f

r. it e

r ypo

a >e

:n v

su re

d■ fier

got

along

nothing to dc with

ou r ab 1 i i t y t o respond on

So he needs

Fi h::c.i a ry Repor r. i ng,

(75^) 462-2729

to,

..nc.

guess,

r;yj*. .

■y

THE COURT:

MS .

been anemptnio t

that

and

dcr:e

backtrack it

tang i b1 e

, f

icr

:eo,

rr-.a

am.

ine

i s s Li -a

you ma y

i: d

t n6

i; 1 • e m

establish

Hr.

mc n th s

sera7 e s .

You

time.

turn

that

know,

and,

.judge,

But

d:rec:lv

not

'’TUFT :

MS .

CHANDLER.:

dealt v; i t h t h a t .

THE COURT:

y o u r v; ritten

and

verbaily about

about

a r g u rn e n t

2 s

clcn't

it,

says,

.1 _/

specialized theory.

several

if memory

know how they

to read into what

constitutionality

what you

just argued

scientj.fic procedure .

THE DEFENDANT :

will advise

attempt

the

If we can

:e hospital,

tha

actually

can get them

Albritton .

ac ut

ago

proced'jre was

if we

I ' n'l t r y ing

the

t'ne

erica v;e

ahrcueh

THE

he did make an

i c-

there are

w r. a t

they dc

years

So t rying to

t:. h 1 n k

to Mr. .

know,

: r. a 11 o n s .

wt nc

them over

k1b ri11o n.

ag c

it,

several

also

And SANEs are

c c u m e r: * s

t n at

v;ill

and get

We've

aon 1

part,

t nrcago

trying also

CHA’JDLEF'. :

Ch es apea ko

nov;,

Ti;e basis

Theory technique,

for

technical or

i h a t ' s b a s i c a 11 y w hat

Fi duclary Repcrcing,

{7 5 ~ )

the basis

48i-2''29

me.

says

“

3:n c

7 C Vs

;

.i t

to what protocol they

d c c u m. e n t s

e stabIish one wa y cr tne

f o 1o v.; e d .

hr. tv; that you V £ made that request

And 1

a .1 i: e c t - ;/

f; £ a I'

them and go ahead and let you

they h a e

other whether

They're going to try to

Okay.

THE C 01

Ad I ass u m e you' v e n o t

h a c k r r c rr. t h e in 7

7 ell

7 HE EFFEUilAUT :

directly to

which judge iL w a s ,

j. z

into seeing a b c u t

lhink ' it

I forgot

wa s

but the judge asked them to

ook

t h e m getting it.

THE COURT:

I never requested

Weil,

they're trying to get

the C o rr: m o n w e a 11 h i s shaking their head

first cf all,

so 1 don't know if there's more to that that you

r. c t

oet

are,

wnether

they exist or •whether they cannot

THE DEFENDANT:

i s o r. r. h e m

wcu 1 d

They said the presumption

p r o v e the admissibility of

THE COURT:

;oiurtariiy trying to

put t h eir hands o n

tao

t n e v w i _ i let you know one way

■ r

it.

And that

They got the nurse coming

aca 1 n

THE DEFEDCART:

Okay.

Fiduciary Reporting, Inc.

(75") 432-2729

Ms .

aaik

■f z

.. i

versus

but

concept,

you probably ought

really help

you

there.

Your

understand,

i e a i i.

THE

can

the

you

evidence versus

v c u r ? e If

v; •? i c; h t

the

i n. i s s i b i i 11 y

e- g o .1 n y

and

The weign

t. h i s

' i

the COURT :

Honor.

t.hie "so: icr.

testimony or

itself,

trial.

one

ou o .

a basis

the

you

make

the

that has

estafciisn

oct

those

and whet he r

testify.

date ?

that

up at

V: ould

but

that the

last

it would

that's

it's

facts have

again,

c; n

expert.

trial,

c; -

anything

then

report

come

Okay.

A n d,

she’s

date .

come

issues W o u 1 o c e

SANE

the

THE COURT:

the

1a m e,

THE DEFENDANT:

then

renewed motion,

those

the

tnat

v ill

S U p P OSc,

first of all,

And

SAME nurse.

I’m going to deny

A n y v.1 a y <

T HE C C U ? T:

whether

else ?

thina a

not

trial,

all of

her testimony

she can

ail have

to pick a

this point,

me.

they've

That’s it,

!-:T R T H V :

Id .? .

CHAKF.'LEF :

Judge,

r e v i C: v; e d o u r it v; n t r i a .1 s c h e d u 1 e s .

cnlv have rv;c dates .in

.: ci

one

•-

•U V ci - itblt

■.

c o j c t no

J u 1 v o a r. - s

l. I j. a i

i r.

Vi e

■.I

a re in September.

going to be able

to do this

dcn ' t kncw if we can se 1 ect a date

if he needs to contact his witness again and

today o r

get

dates to check against theirs,

net going to be available in July.

THE COURT:

che c k .

her?

And he

h e c k e d w .i t h his v.; i. t n ess f o r

li Cl

And we actually

:gus t and then the rest of the

in anticipation of

w e !iad contacted cur witnesses as well as

s EH ,

Judge.

7 e can provide him with our possible

but it's not

w ere

Do you have more dates for

A n d v; h a t i ' m putting

T HE

TRFEUCAHT :

THE COURT:

I got August dates.

You have August dates?

Let me

The defendant's

;i u s t

r e v i e w tl'is three motions first.

motion for a .medical doctcr is denied.

You removed

yeur motion for imer iocutcry appeal.

And the motion

for

about the SAME report

trial.

that will be the ruling that the court said now.

Wh a t

THE DSFEUDAMT:

can be renewed at

are

those?

1 have August 10th,

121 h .

Fi d u c i a r y R ep orzing, ±nc.

( 7 5“) 482-2729

11th,

THE COURT:

MS .

Okay.

THE DEFEND.ANT :

This

«st

That’s not their problem.

THE COURT:

MR .

MURPHY:

Judge,

MS.

SMITH:

Your Honor,

wh o ' s be e u

available that week.

She's bee n

Williams,

is not

She'll be off that entire week.

Judge,

?hen ,

CHANDLER:

we'll pick a

day in September.

And we have September 7th.

MURPHY:

MR .

THE DEFENDANT:

THE COURT:

THE DEFENDANT:

sorry,

Y o u r H Ci nor .

y o u k n o w,

Mr .

my gosh.

like I said,

you don't

A.Ibritton .

V< ell,

and I

I mean,

I'm

Wei 1

THE COURT:

«£ J

Oh,

W ell,

h a v e a n y p _ a c e else to go,

is not

r e a 11 y h e 1 p i r. g .

MS.

Ms.

t h e i r: v e s t i g a t o r throughout this,

standby counsel

ava i 1 ab1 e .

yeah.

time?

c h,

Your Honor

10.

how do I get a copy of the

neea

court

judge.

I'm not getting copies of the

ou r t c r der -

10th,

We’ll set it for August

T HE C0URT :

August

i 1A. N D L E F. :

mean,

I'm not

this is going to be a

it's

lengthy trial.

gust

And it's your standby counsel and her investigator,

Fiduciary Reporting, me.

(757) 482-2725

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LES

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

HEARING DATE:

JUNE 1,2011

JUDGE:

HANSON

COMMONWEAL! H OF VIRGINIA

DEVINCHE JAVO I ALBRITTON, DEFENDANT

INDICTMENT FOR:

ABDUCTION WITH THE INTENT TO DEFILE

RAPE

FORCIBLE SODOlAY

ORDER—CASE NO.: CR10-3743

Court Reporter:

Ronald Graham & Associates, Inc.

This day cane T. Murphy and S. Chandler, attorneys for the Commonwealth, the defendant, in

person, pro se, and S. Smith, stand-by attorney for the defendant.

After hearing arguments of counsel and the defendant, the Court ruled as follows:

On the defendant’s motion to have Judge Hanson recuse himself from any further proceedings in

this matter, the Court DENIED the motion;

On the defendant’s motion for appointment of an expert witness in the area of Sexual Assault

examinations, the court GRANTED the motion as follows: Lisa K. Amick is appointed to assist

the defendant and is allowed the sum of $400.00 to review the Commonwealth’s discoverable

evidence and to consult with the defendant for up to one hour. Leave is granted to the defendant to

seek additional funds from the Court, upon written motion and with notice to the Commonwealth,

for further assistanc; by Ms. Amick if needed. The Attorney for the Commonwealth shall provide

to Ms. Amick photc graphs taken of the victim during the Sexual Assault Examination, which

photographs Ms. A: nick may provide to the defendant for his review during her one-hour

consultation. The photographs shall not be copied and they shall be returned to the Attorney for the

Commonwealth at the conclusion of Ms. Amick's one-hour consultation. The defendant shall not

be permitted to keep the photographs or keep any copies thereof;

On the defendant’s motion for additional funds for the appearance of an expert witness from

LabCorp Laboratory Corporation of America, the Court GRANTED the defendant $500.00 for the

appearance at trial of the expert witness;

u*a.

On the defendan :*s motion for funds to obtain an aerial map of the location of the offense as it

appeared in 1999, it was agreed by the parties that S. Smith, stand-by counsel, will determine

whether the City of Virginia Beach has a map of the area in 1999 and that the Attorney for the

Commonwealth will determine whether such a map includes the victim’s “point of origin” as she

began her trip on the date of offense. If such a map exists and contains the requested locations, the

Court GRANTS the defendant’s motion to have such map produced for his use at trial and awards

him the processing fees associated with its production. Such fees will be paid only upon

presentation of a 1 invoice or other accounting from the city department producing the map;

On the defendani 's motion for sequestration of the jury, the Court DENIED the motion;

On the defendani s motion to dismiss the indictments due to a violation of his speedy trial rights, the

Court found no violation of his rights and no purposeful or intentional delay by the Commonwealth

in investigating the case or bringing the charges, and so the Court DENIED the motion;

The objections of the defendant and of the Commonwealth to the various rulings of the court were

noted on the record.

This matter is set for trial by juiy, commencing on June 13, 2011.

ENTER:

t /5/lZs

£(M4j7~

Honorable Edward W. Hanson, Jr.

Judge, Circuit Court

SEEN:

o/>

Thomas M.'&fu^y

Deputy Commonwpal^i’s Attorney

Sara R. Chandler

Associate Commonwealth’s Attorney

SusanVSmith

Offifce'ofthe Publi: Defender, Stand-By Counsel

Devinche Javon A britton

Defendant

✓7

SUPREME COURT OF VIRGINIA

DOUGLAS B. ROBELEN, CLERK

SUPREME COURT BUILDING

100 NORTH 9TH STREET, 5TH FLOOR

RICHMOND. VIRGINIA 23219

MURIEL-THERESA PITNEY

CHIEF DEPUTY CLERK

(804)786-2251 V/TDD

FAX: (804) 786-6249

February 8,2021

DeVinche J. AlBritton, No. 1016653

Sussex II State Prison

24427 Musselwhite Drive

Waverly, VA 23891

Re:

Devinche J. Albritton v. Commonwealth of Virginia

Record No. 210005

Dear Mr. AlBritton:

You previously wrote the Court inquiring whether Defense Exhibit 3 was included in the circuit court

record that was transmitted to this Court. You also called Mr. Robelen, Clerk, making the same

inquiry. The Court of Appeals did transmit the circuit court record to this Court; however, the circuit

court retained Defense Exhibit 3, presumably because of its size. Please note that because your

petition specifically references the exhibit, if the Court determines it needs the exhibit, it has the

authority to request it.

Sincerely,

Muriel-Theresa Pitney

Chief Deputy Clerk

MTP/ep

.. 4748 Deerfield Ln, Virginia Beach, VA 23455 to Aragona Village Shopping Center - Go...

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Page 2 of 2

Walking directions are in beta.

Use caution - This route may be missing sidewalks or pedestrian paths.

Walking directions to Aragona Village Shopping Center

4748 Deerfield Ln

Y Virginia Beach, VA 23455

7he

1. Head southwest on Deerfield Ln toward Huntinghill Ln

226 ft

2. Turn left onto Huntinghill Ln

0.1 mi

3. Turn right onto Honeygrove Rd

0.3 mi

4. Turn left onto Aragona Blvd

1.0 mi

5. Turn left onto S Kellam Rd

0.4 mi

6. Turn right onto Jeanne St

141 ft

7. Turn left onto Horace Ave

Destination will be on the right

0.2 mi

Aragona Village Shopping Center

Virginia Beach, VA 23462

These directions are for planning purposes only. You may find that construction projects, traffic, weather, or ott er events may cause

conditions to differ from the map results, and you should plan your route accordingly. You must obey all signs < r notices regarding your route.

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4748 Deerfield Ln, Virginia Beach, VA 23455 to Aragona Village Shopping Center - Go...

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Driving directions to Aragona Village Shopping Center

4748 Deerfield Ln

Virginia Beach, VA 23455

1. Head southwest on Deerfield Ln toward Huntinghill Ln

226 ft

2. Turn left onto Huntinghill Ln

0.1 mi

3. Take the 2nd left onto Honeygrove Rd

0.4 mi

4. Take the 2nd right onto Independence Blvd

2.0 mi

5. Turn right onto Virginia Beach Blvd

Destination will be on the right

0.4 mi

Aragona Village Shopping Center

Virginia Beach, VA 23462

These directions are for planning purposes only. You may find that construction projects, traffic, weather, or othe • events may cause

conditions to differ from the map results, and you should plan your route accordingly. You must obey ail signs or notices regarding your route.

Report a problem

Uffys • / /**v\ o

CTf\r\ rrlo

<-><-\tvi/tv>Qr\c'9V>1=*»n/fr'faV»=w1

4748 Deerfield Ln, Virginia Beach, VA 23455 to Aragona Village Shopping Center - Go...

Google maps

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To see all the details that are visible on the

screen, use the "Print” link next to the map.

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EAST COAST INVESTIGATIONS, INC.

2420 Virginia Beach Blvd. Ste. 116

Virginia Beach, VA 23454

RE: DeVinche Albritton # 1016653

To Whom It May Concern:

East Coast Investigations,Inc., was hired on 10/13/2015 to conduct a research

investigation with regards to obtaining a copy of the NCJRS SAjxlE Hospital

Protocol for Virginia. This investigation was to determine how difficult it was to

uncover the documents and the level of accessibility for such.

An investigation online entering NCJRS into Google provided such documents

and with no problem uncovering an 80 page hospital protocol for treatment of

sexual assault victims. On the second page of the protocol it lists numerous

names of the task force members for additional expansion if necessary or needed..

We also uncovered the SANE program 8 pages for review.

Respectfully,

Nick. Fortunato

Senior Investigations

East Coast Investigations, Inc.

Dept of Criminal Justices Services 11-1155

prosecutors J/ed

{.oud

-die Rztofied fhey

/Veipt'educ&ifpia dipiHIPtofocol 4J

i !

oladoY)

Ik®/ fifiomael aiXsot'

4^$ dug Trial mid

/ i

VA Beach(757) 431-9446 Hampton (757) 827-5658 Richmond(804) 285-8262 Fredericksburg (540) 368-9446 NOVA (703) 383-9446

www.Eastcoastinvestigation.com

E-mail E< HU 3/4 iOL.COM

ustice Service ID# 11-1155

Licensed by VA Dept. Of Cri

PfospitaTFrotocoi------- Development Task Force

Mr. Greg Auditors

Investigator

Henrico County Division of Police

Ms. Nancy Bowman

Registered Nurse

-Medical College of Virginia

Mr. Robert Colvin

Executive Director

Virginia Stare Crime Commission

Virginia's

HOSPITAL PROTOCOL

For the Treatment of Sexual

Assault Victims

Ms. Gayle Crutchfield

Senior Social Worker

Henrico County Dept, of Social Services

Ms. Linda Curtis

Deputy Common'.veulth's Attorney

Hampton Commonwealth’s Attorney’s

Office

Ms. Deanne Dabbs

Eorensio Section Chief, Serologv.'DNA

Division of Forensic Science

Ms. Barbara Dill

Registered Nurse

Ms. Fran Dcker

Children's Justice Act Coordinator

Dept, of Criminal Justice Sendees

Mr. Timothy Giadis

Victims Sendees Program Analyst

Dept, of Criminal Justice Services

13'.'016

U.S. Department of Justice

National Institute ot Justice

Ms. Tammy Knight

Registered Nurse

Medical College of Virginia

Mr. John Mahoney

Chair, Hospital Protocol Development

Task Force

Victims Services Program Analyst

Dept, of Criminal Justice Services

Ms. Kathryn Malbon

Victims Sendees Program Analyst

Dept, of Criminal Justice Services

The dcci.r-am has teen reproduced exactly as roceVed Irom the

p-c-son or o'eaNzat'cn orighatlrg it. Points of vto.v or opinions slated

h this dccumanl are those cl the authors and d: not necessa'1!'/

represent the oKic'al pcs'tion or pci'cles oF the Mat'cna1 l.nst'tu'.o of

Justice.

Fermss'cn to reproduce inis copyrighted materia’ hts teen

g-anted by

Virginia Department of

Criminal Justice Services

lo the National Crimlna' Justice Reference Service (NCJR5).

Further reoroauclon euts’de of the N3JRS system requires pennission ol the cccy:ght ov.r.er.

Ms. Mandie Patterson

Victims Services Section Chief

Dept, of Criminal Justice Services

Ms. Phyllis Sale

Nurse Practitioner

Medical College of Virginia

Ms. Cindy Swanson

Rape Crisis Center Services Coordinator

YWCA Rap-a Crisis Center

Ms. Katharine Webb

Senior Vice President

Virginia Hospital Association

0 Prepared by

Hospital Protocol Development Task Force

0 In Coordination with

• Virginia State Crime Commission

• Department of Criminal Justice Services

• Department of General Services, Division of Forensic Science

• Virginia Hospital Association

Adep'.rJDews^n, IJSO

Executive Summary

■ Purpose

This summary provides a general

overview of the more detailed

information presented in the body

of the protocol. The summary also

serves as an index; page refer

ences at the end of each section

refer to pertinent information

contained elsewhere in the

protocol.

Medical personnel are encouraged

to read the entire protocol and to

refer to topic-specific literature for

more detailed information.

■ General Information

Reports of sexual assaults against

adults and children have contin

ued to increase throughout the

past decade.

Traditionally, the successful

prosecution of both adult and

child sexual assault/abuse cases

has been difficult. Since the

victim is often the only witness to

the crime, the collection of

physical evidence as well as the

documentation of medical trauma

m ay be necessary either to sub

stantiate an allegation or to help

strengthen a case for court.

When immediate medical atten

tion is received, the chances

increase that some type of physi

cal evidence will be found. The

role of medical personnel in this

process often can be the key to

successful prosecution and can

help to promote early victim

recovery.

The primary purpose of this

document is to assist hospitals to;

Recommendations were based

upon the physical and emotional

needs of the sexual assault/abuse

victim reasonably balanced with

the basic requirements of

Virginia’s legal system. The

resulting protocol provides useful

legal, medical and forensic

guidance and can serve as a basis

for serious discussion of the

evidentiary, medical and emo

tional needs of sexual assault/

abuse victims.

For purposes of this protocol, the

term “sexual assault” will be used

to refer to all sex crimes perpe

trated against adults and the term

“sexual abuse” will refer to all sex

crimes perpetrated against

children, both terms being defined

in a broad context as follows;

Any act of sexual contact or

intimacy performed upon one

person by another, and

without mutual consent, or

with an inability of the victim

to give consent due to age,

mental or physical incapacity.

(SEE PREFACE) '

• Minimize the physical and

psychological trauma to the

victim of a sex crime, and

• Maximize the probability of

collecting and preserving

physical evidence for

potential use in the legal

system.

HU 3/4

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---------- :_______________________________________________________________________________ Executive Summary

forms, anatomical drawings and

patient consent forms should be

provided by the individual

hospital.

(SEE PAGES 26-27)

NOTE: Step-by-step instructions for the

PERK are listed in this protocol on pages

27-34.

■ Medical Examination

careful not to include any subjec

tive opinions or conclusions as to

whether or not the crime occurred.

Hospital personnel should not be

expected to expand their role and

act as "investigators” for law

enforcement. They should not ask

for details beyond those necessary

to perform the medical and

evidence collection tasks; it is the

responsibility of the follow-up

investigator to ask the more

detailed questions.

Body Diagrams/Photographs

Photographs of sexual assault

/on: r> a nx? *ac\

victims should not be taken on a

routine basis. Instead written

descriptions and diagrams of the ji^Date of Last Voluntary Coitus

It is recommended that attending

human figure should be used to

clinicians ask victims if they

show the location and size of

engaged in voluntary sexual

the injury.

intercourse within 48 hours prior

to the assault. If so, victims should

Any photographs which are taken

also be asked the date of the

should be limited to those

instances where there is an oppor contact and the partner’s relation

ship to the victim. This informa

tunity to produce clear pictorial

evidence of injury, such as bruises tion should be noted on the

or lacerations. Photographs should Sexual Assault Information Form.

v (SEE PAGE 35)

only be taken with the specific

consent of the victim.

Toxicology Blood/Urine Screen

Blood/urine

screens for determin

All photographs should be taken

ing

toxicology

should only be

by a competent photographer,

done

the

following

situations:

preferably of the same sex as the

A i 4

victim, and a ruler and color chart

should be used to indicate the size

and nature of each injury.

(SEEPAGES 34-35)

Documentation/Terminology

Physical examination findings

should be documented as

completely as possible on the

medical record. Sexual assault

prosecutions may not always

require the presence or testimony

of the attending clinician or nurse;

however, there will be times when

it is necessary. If testimony is

needed, a thoroughly completed

and legible medical record and

accompanying body diagram will

assist medical staff in recalling the

incident.

The attending clinician must be

be needed, and what treatment

may be necessary. Pertinent

information to be included on the

Medical Report Form may be

found in the Adult Protocol.

(SEE PAGE 36)

Analysis of Specimens

All medical and forensic speci

mens collected during the sexual

assault examination must be kept

and processed separately.

(SEE PAGE 36)

•If the victim or accompany

ing person (such as a family

member, friend or police

officer) states that the victim

was drugged by the

assailant(s), and/or

'■ Procedures for Release of

Evidence

Transportation/Release of

Evidence

Under no circumstances should

victims be allowed to handle

evidence after it has been

collected. Only a law enforcement

officer or duly authorized agent

may transfer evidence from

hospitals to the Division of

Forensic Science for analysis.

Evidence collection items should

not be released from a hospital

without the written authorization

and consent of the informed adult

victim, or an authorized third party

acting on the victim’s behalf if the

victim is unable to understand or

execute the release.

/cpp Dir.p

A 4 4

| J

Non-Authorization to Release

Evidence

Although the vast majority of

sexual assault victims consent to

having evidence specimens

released to law enforcement

subsequent to the medical exami

nation and evidence collection

process, there may be instances

Medical Report Form for Sexual when a victim will not authorize

Assault Examinations

such a release. Hospital and/or law

Throughout the medical examina enforcement personnel should not

tion, the attending clinician should react negatively to the victim’s

explain to the victim why ques

initial decision not to release

tions are being asked, why certain evidence. They should inform the

medical and evidentiary tests may | victim that the release of evidence

•If, in the opinion of the

attending clinician, the

victim’s medical condition

appears to warrant toxicology

screening for optimal patient

care.

(SEEPAGE 35)

HU 1/2

"* /

STATE OF VIRGINIA

COUNTY OF VIRGINIA BEACH

[N THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT

CASE NO: CR10-3743

COMMONWEALTH OF VIRGINIA

Plaintiff,

AFFIDAVIT OF ELIZABETH

LYNNE GIBBS, MD

Versus

DEVINCHE ALBRITTON

Defendant.

COMES NOW, Elizabeth Lynne Gibbs, M.D. duly sworn states as follows;

1. For purposes of identification, I, Elizabeth (Betsy) Baker Gibbs, M.D., am a forensic

pediatrician. I received my Doctorate of Medicine in 1986 and completed my pediatric

residency in 1989.1 have been board certified in pediatrics and forensic medicine. I

continue to be board-certified in forensic medicine. I am trained as a parenting

coordinator and am a certified forensic medical investigator. I have practiced forensic

medicine for twenty years. I worked with over ten thousand (10,000) children, families

and adults with allegations of child sexual and physical abuse, domestic violence, or

sexual assault to include rape-homicides and testified as an expert witness in hundreds of

cases. I have been qualified as an expert witness in South Carolina, Virginia^

Pennsylvania) New Jersey, Georgia, and Florida.

2. I have been asked to render an opinion regarding the possible etiologies of the physical

findings seen on Jamie Lewis on September 6, 1999 by Kathryn McDonald, RN, SANE.

3. I reviewed the medical records and photographs from the Chesapeake General Hospital

Sane Program from September 6, 1999.

4. Many factors contribute to the extent of injury to the genital area during forced, coerced

or consensual intercourse. One of these factors includes multiple sexual contacts,

particularly with multiple partners, within a short period of time. According to the history

I have been given and the records reviewed, Ms. Lewis did have sexual intercourse with

two partners, one being her husband, within a short period of time.

5. I agree with Ms. McDonald's assessment in that the findings are abnormal. These

findings support a history of blunt-force trauma to the genitalia. They can be seen in

instances of nonconsensual and consensual intercourse, albeit more often in

nonconsensual intercourse. Multiple sexual partners and multiple sexual acts are among

the factors that increase the likelihood of traumatic findings in multiple sites, regardless

of the nature of consent.

6. In my medical opinion, no judgment can be made, to a reasonable degree of medical

certainty, regarding the nature of consent to the sexual act. The blunt-force trauma could

have been made with the consent or without the consent of Ms. Lewis.

7. As to the non-genital findings, the scratch on the left forearm is non-specific and gives no

information regarding the nature of the consent to the sexual act.

FURTHER AFFIANT SAYETH NAUGHT!

Elizabeth‘Lynne Gibbs, M.D.

SWORN to and subscribed this

Day of February, 2012.

^Notary Public for South Carolina

My Commission Expires;^ ? a Q

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(JExkbi+M)

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 1 of 12 PagelD# 419

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF V1RGINI A

Norfolk Division

FILED

MAR 1 2 2019

CLERK. CPCMRCTCOURl

Mrm^ry * vv

DEVINCHE JAVON ALBRITTON,

Petitioner,

Criminal No. 2:16cv737

HAROLD CLARICE,

Respondent.

ORDER

Before the Court are the following Motions brought by pro se Petitioner DeVtnche Javon

Albritton: a Motion for Relief from Judgment, a Motion to Amend and Supplement, a Motion for

an Evidentiary Hearing, a Motion for Summary Judgment, a Motion to Admit a Tjrial Transcript,

and a Motion to Compel and for Injunction. These Motions follow the Court s Older adopting the

Magistrate Judge’s Order denying Mr. Albritton’s Motion to Vacate Under 28 U.S. C. § 2254. For

the reasons stated herein, the Motion for Relief from Judgment (ECF No. 24) is DENIED; the

Motion to Amend and Supplement (ECF No. 28) is GRANTED; the Motion foi an Evidentiary

Hearing (ECF No. 29) is DENTED; the Motion for Summary Judgment (ECF No. jo) is DENTED

for lack of jurisdiction; the Motion to Admit a Trial Transcript (ECF No. 34) is GRANTED with

leave to supplement; the Motion to Compel and for Injunction (ECF No. 38) is DEFERRED

pending response from the Government.

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 2 of 12 PagelD# 420

BACKGROUND

Following trial in Virginia Beach Circuit Court in April 2013, Petitioner was convicted of

Rape and Abduction with Intent to Defile, On May 1, 2013, he was sentenced to a total term of

life imprisonment plus thirty years in the Virginia penal system. See ECF No. 10 at 1-2. Mr.

Albritton filed a § 2254 Petition presenting nine claims alleging violations of federal rights

regarding Petitioner’s trial, as well as the denial of his appeal by the Virginia Court of Appeals

and the denial of his petition for a writ of habeas corpus by the Virginia Supreme Court. See ECF

No. 1.

On April 20, 2017, the Attorney General of Virginia filed a Motion to Dismiss on behalf

of the Respondent. See ECF No. 8. The matter was referred to a United States Magistrate Judge

pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure

72(b), and Local Rule 72 for a report and recommendation. In the Report and Recommendation

(ECF No. 20) filed on February 1, 2018, the Magistrate Judge recommended granting

Respondent’s Motion to Dismiss, dismissing the Petition with prejudice. On March 6, 2018, this

Court adopted the Magistrate Judge’s findings and recommendations. ECF No. 22. The instant

Motions followed. The Court ordered the State to respond to four of these Motions.

II.

Motion for Relief from Judgment

Motion to Amend and Supplement

On April 19, 2018, Mr. Albritton filed a Motion (ECF No. 28) to supplement his Motion

for Relief from Judgment under Rule 60(b). Mr. Albritton included an attachment as Exhibit #1

“to establish that [he] is entitled to federal habeas relief upon his Brady violation claim.” ECF No,

28 at 2 (citing Brady v. Maryland, 373 U.S. 83 (1963)). The Exhibit is an excerpt from Bell v.

Bell, 512 F.3d. 223 (6th Cir. 2008). Id. at 3-4. Id.

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 3 of 12 PagelD# 421

In his Motion, Mr. Albritton claims that he “had not yet received the relevant

documentation from the Sussex II” prison library when he filed the Motion for Relief from

Judgment. ECF No. 28 at l. Out of deference to this pro se Petitioner, the Court GRANTS Mr.

Albritton’s Motion to Supplement. Accordingly, Exhibit #1 will be considered along with the

Motion for Relief from Judgment.

Standard

Federal Rule of Civil Procedure 60(b) “authorizes a district court to grant relief from a final

judgment for five enumerated reasons or for ‘any other reason that justifies relief” under Rule

60(b)(6). Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011) (quoting Fed. R. Civ. P. 60(b)(6)).

“The remedy provided by the Rule, however, is extraordinary and is only to be invoked upon a

showing of exceptional circumstances.” Compton v. Alton S.S. Co., 608 F.2d 96, 102 (4th Cir.

1979). The party seeking such relief “must clearly establish the grounds therefore to the

satisfaction of the district court . . . and such grounds must be clearly substantiated by adequate

proof.” In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992).

A motion under Rule 60(b) is not a substitute for appeal. See Ackermann v. United States,

340 U.S. 193, 198 (1950). Neither does a motion for reconsideration allow a district court to

reconsider its prior ruling with respect to issues addressed in its original order. See United States

v. Williams, 674 F.2d 310, 312 (4th Cir. 1982) (“To the extent that the post-judgment motion

sought to have the district court reconsider its ruling with respect to the (issues addressed in the

district court’s original order], it [is] clearly improper, because Rule 60(b) does not authorize a

motion merely for reconsideration of a legal issue.”). “Where the motion is nothing more than a

request that the district court change its mind ... it is not authorized by Rule 60(b).” Id. at 313.

(Exhibit

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 4 of 12 PagelD# 422

Under Rule 60(b)(1), a petitioner may seek relief from a final judgment for “mistake,

inadvertence, surprise, or excusable neglect.” Mr. Albritton first disputes this Court’s treatment

of his objections to the Magistrate Judge’s Report and Recommendations (ECF No. 21). In its

Order, the Court characterized Mr. Albritton’s objections in passing as “untimely.” Id.

Mr.

Albritton argues that the Court was mistaken to do so. ECF No. 24 at 2-3.

Analysis

Movants typically are given fourteen days to file objections after being served with a

Magistrate Judge’s Reports and Recommendations. Fed. R. Civ. P. 72(b)(2). Mr. Albritton’s

objections were filed with the Court on February 20, 2018. The Magistrate Judge’s Report had

been filed and mailed on February 1,2018, but the Report was not marked “received” by the prison

until February 5, 2018. ECF No. 24 at 7. Under the “prison mailbox rule,” courts deem pro se

inmates’ objections to be filed upon mailing. See Houston v. Lack, 487 U.S. 266 (1988); see also

Brown v. Cherry12:1 l-cv-83,2012 WL27422, at *1 n.l (E.D. Va. Jan.4,2012) (recognizing prison

mailbox rule for Rule 72 objections to Magistrate Judge Report). Mr. Albritton caused his

objections to be served on February 15, 2018, fourteen days after the Magistrate Judge’s Report

was filed. ECF No. 21 at 22. Therefore, the objections were timely.

Nevertheless, Mr. Albritton is afforded no relief therefrom. The Court exercised its

discretion properly to “review[] the record and examine[] the objections filed by Petitioner to the

Report and Recommendation,” making “de novo findings with respect to the portions objected to.”

ECF No. 22 at 1-2. Regardless of whether Mr. Albritton’s objections were deemed untimely, they

were considered fully, and further review based upon an “exceptional circumstance” as

contemplated by Rule 60(b) is unwarranted.

tbt

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 5 of 12 PagelD# 423

Moreover, as the Fourth Circuit has explained, “[t]o the extent that [a] post-judgment

motion [seeks] to have the district court reconsider its ruling with respect to [a specific] issue, it

[is] clearly improper, because Rule 60(b) does not authorize a motion merely for reconsideration

of a legal issue.” Williams, 674 F.2d at 312; see also Adkins v. N.C. Ail y Gen., 217 F.3d 837 (4th

Cir. 2000) (unpublished table disposition) (upholding summary denial of a Rule 60(b) motion that

merely restated argument from underlying § 2254 petition); Robinson v. McKellar, 872 F.2d 419

(4th Cir. 1989) (unpublished table disposition) (“In the motion for reconsideration, [petitioner]

raised the same issues he raised in his habeas petition.”).

Mr. Albritton’s Motion reiterates bases for relief that have already been presented—and

previously rejected—in his Motion to Vacate. Compare Motion for Relief from Judgment (ECF

No. 24), with Motion to Vacate Under § 2254 (ECF No. 1). These bases include discovery disputes

(ECF No. 24 at 3-4) brought under Brady and expert opinion testimony (ECF No. 24 at 5). Both

were already resolved. See ECF No. 20 at 16-17 and ECF No. 20 at 15, respectively. Asaresult,

Mr. Albritton’s Motion lacks merit and “is nothing more than a request that the district court

change its mind,” which “is not authorized by Rule 60(b).” United States v. Williams, 674 F.2d

310, 313 (4th Cir. 1982); see also Evans v. Smith, 220 F.3d 306, 323-23 (4th Cir. 2000).

III.

Motion for Evidentiary Hearing

Mr. Albritton argues that he is entitled to an evidentiary hearing to address a Brady

violation for the State’s alleged failure to provide him with a “SANE protocol.” A district court

may hold an evidentiary hearing if the petitioner alleges facts that would entitle him or her to relief

and one of the Townsend factors is met.1 See Robinson v. Polk, 438 F.3d 350, 368 (4th Cir. 2006).

1 “[A] federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If

(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not

fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate

to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material

Cf^xkibi'fcA )

Case 2:16~cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 6 of 12 PagelD# 424

“Where a state procedural rule is both adequate and independent, it will bar consideration

of the merits of claims on habeas review unless the petitioner demonstrates cause for the default

and prejudice resulting therefrom or that a failure to consider the claims will result in a fundamental

miscarriage of justice.” McNeil v. Polk, 476 F.3d 206, 211 (4th Cir. 2007). “[A] rule is adequate

if it is regularly or consistently applied by the state court and is independent if it does not depend

on a federal constitutional ruling.” Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000) (internal

citation omitted). Mr. Albritton presented his Brady claim to the Supreme Court of Virginia, which

dismissed the claim based on the procedural default rule articulated under Slayton v. Parrigan, 215

Va. 27 (1974); see also Porter v. Warden of Sussex /, 283 Va. 326 (2012). The rule in Slayton

constitutes an adequate and independent state procedural rule. See Wright v. Angelone, 151 F.3d

151, 159-60 (4th Cir. 1998); Mu ’Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997); Boozer v.

Ray, Civil Action No. 3:08cv489, 2009 WL 1975032, at *5 (E.D. Va. July 8, 2009). Therefore,

Mr. Albritton must demonstrate cause and prejudice or a miscarriage of justice to allege facts that

would entitle him to relief. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

“For cause to exist, the external impediment, whether it be government interference or the

reasonable unavailability of the factual basis for the claim, must have prevented petitioner from

raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497 (1991). Mr. Albritton alleges that the

Government interfered with his right to discover exculpatory material under Brady. When he

asked the Government for disclosure of the sexual assault nurse examiner’s protocol, the

Government allegedly responded that it was unavailable. ECF No. 20 at 16. Mr. Albritton claims

facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of

fact did not afford the habeas applicant a full and fair fact hearing.” Townsend v. Sain, 372 U.S. 293, 313 (1963).

Absent one of these factors, the Court has “ample discretionary authority to tailor the proceedings to dispose quickly,

efficiently, and fairly of first habeas petitions that lack substantial merit, while preserving more extensive proceedings

for those petitions raising serious questions." Loncharv. Thomas, 517 U.S. 314,325 (1996).

Exhibit-A)

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 7 of 12 PagelD# 425 /

that he learned after his trial that the protocol had been available.2 Therefore, the Government’s

response prevented Mr. Albritton from reviewing the protocol, and Mr. Albritton has established

that the Government caused an interference. See also Royal v. Taylor, 188 F.3d 239, 245-46 (4th

Cir. 1999).

To prove actual prejudice, Mr. Albritton must show “not merely that the errors at his trial

created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions ” Strickler v. Pruett, 149 F.3d

1170 (4th Cir. 1998) (unpublished table decision). “[Evidence is material only where there exists

a reasonable probability that had the evidence been disclosed the result of the trial would have

been different.” United States v. Ellis, 121 F.3d 908, 914 (4th Cir. 1997). Mr. Albritton argues

that the Government’s failure to reveal the sexual assault nurse examiner’s protocol for examining

and collecting DNA samples from the victim constitutes prejudice. However, he has failed to

show reasonable probability that the trial’s outcome would have been different had the nurse’s

procedure been disclosed. That the information was not disclosed is insufficient to demonstrate

prejudice. A hearing cannot serve as a “fishing expedition.” hem v. Washington, 444 F.3d 295,

304 (4th Cir. 2006).

However, potential for a miscarriage ofjustice could avail Mr. Albritton of relief under the

procedural default doctrine. See Gilbert v. Moore, 134 F.3d 642, 656 (4th Cir. 1998). For this,

Mr. Albritton “must show that it is more likely than not that no reasonable juror would have

convicted him in light of the new evidence." O’Dell v. Netherland, 95 F.3d 1214, 1246-47 (4th

Cir. 1996). The Court notes that “where a constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal habeas court may grant the writ even in the

2 The Government can violate Brady even when the materials are available from another source. “[Tjhere is no general

‘public records’ exception to the Brady rule.” Anderson v. State o/S. Carolina, 709 F.2d 887,888 (4th Cir. 1983).

tutr~i

Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 8 of 12 PagelD# 426

absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478,496

(1986). However, no miscarriage results when “the alleged constitutional error neither precluded

the development of true facts nor resulted in the admission of false ones.” Smith v. Murray, 477

U.S. 527, 538 (1986).

Mr. Albritton asserts unpersuasively that disclosure of the publicly available protocol for

sexual assault nurse examiners would have resulted in a different outcome at trial. ECF No 29 at

1. He has not demonstrated how the development of any facts was precluded by the Government’s

alleged failure to disclose. See Lent, 444 F.3d at 304 (“Where, as here, a petitioner has not alleged

additional facts that, if true, would entitle him to relief, a hearing is unwarranted.”) (internal

quotation marks omitted); cf. Walkerv. True, 399 F.3d315,321 (4th Cir. 2005) (finding that denial

of an evidentiary hearing was error where an inmate presented extensive evidence that would

satisfy the elements of Virginia’s definition of mental incapacity and preclude execution). The

Court finds no miscarriage of justice occurred. See also Conaway v. Polk, 453 F.3d 567, 582 (4th

Cir. 2006).

Mr. Albritton has established cause but has insufficiently alleged prejudice or a miscarriage

of justice. Therefore, his claim is procedurally defaulted. Accordingly, he has failed to allege

facts that would entitle him to relief,3 and Mr. Albritton’s Motion for a hearing is DENIED without

prejudice.

IV.

Motion for Summary Judgment

Mr. Albritton seeks summary judgment as to Claims Three and Four of his habeas petition.

ECF No. 30. Rule 56 motions for summary judgment “appl[y] to habeas proceedings.” Brandt v.

Gooding, 636 F.3d 124, 132 (4th Cir. 2011). Summary judgment is granted “if the movant shows

J The Court need not address the Townsend factors when facts are not alleged that would entitle a petitioner to

relief. See Robinson v. Polk, 438 F.3d 350,368 (4th Cir. 2006).

/Onr'SCase 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19' Page 9 of 12 PagelD# 427

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56. Mr. Albritton contends that his habeas claims for Brady

violations and improper expert testimony are beyond genuine dispute. ECF No. 30. The Court

disagrees. Moreover, this Motion is construed as a successive petition because these claims were

dismissed previously. See ECF No. 22.

This Court has jurisdiction to consider a successive motion brought under § 2254 only after

a petitioner receives permission to file such a motion from the United States Court of Appeals for

the Fourth Circuit. See In re Vial, 115F.3d 1192, 1194 (4th Cir. 1997). Because this Court has

not received certification from the Fourth Circuit that a second or successive habeas petition is

warranted, Petitioner’s § 2254 Motion must be DENIED for lack ofjurisdiction.

Motion to Admit a Trial Transcript

Mr. Albritton seeks to admit the transcript from state court documenting his Motion to

Suppress hearing,

The Court liberally construes this Motion as an additional Motion to

Supplement the Motion for Relief from Judgment (ECF No. 24). As noted above, the Court may

“permit a party to serve a supplemental pleading” under Rule 15(d). See, e.g., United States v.

Maddicks, Criminal No. 4:16cr70, 2017 WL 1788665 (E.D. Va. May 4, 2017). Although Mr.

Albritton failed to attach any transcript as an exhibit to this Motion, this Motion is GRANTED,

and leave to supplement is allowed.

VI.

Motion to Compel and for Injunction

Mr. Albritton seeks an order requiring officials at his state prison to allow his family to

send him a hearing transcript. ECF No. 38. He alleges that the prison limits parcel weight to one

ounce unless deemed “legal mail.” ECF No 38 at 1. “Legal mail” must be mailed by “verified

attorneys, officers of state, federal, local courts and the Virginia State Bar.” ECF No. 38 at 3.

C£M'd#H) (BkM-A)

Case 216-CV-00737-AWA-LRL Document 39 Filed 03/12/19 Page 10 of 12 PagelD# 428 7

Because of this weight restriction and Mr. Albritton’s status as a pro se petitioner, he allegedly

cannot receive a parcel containing legal materials from his family.

“The determination of whether particular kinds of correspondence qualify for the

constitutional protection accorded a prisoner’s ‘legal mail’ is a question of law properly decided

by the court.” Sallier v. Brooks, 343 F.3d 868, 873 (6th Cir. 2003); see also Whitehouse v. Corner,

No. 1:1 Ocv 1020(CMH/TRJ), 2012 WL 508628, at *2 (E.D. Va. Feb. 14, 2012) (mail marked

confidential did “not qualify as legal mail because it was not ‘sent to or received from verified

attorneys, officers of state, federal, and local courts, the Virginia State Bar’”) (quoting Virginia

Department of Corrections Operating Procedure 803.1).

“A court must consider: (1) whether there is a valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it; (2) whether there are

alternative means of exercising the rights that remain open to the inmates; (3) the impact that

accommodation of the asserted constitutional right would have on guards and other inmates, and

on the allocation of prison resources generally; and (4) whether any ‘ready alternatives’ exist to

the prison regulation.” Griffin v. Lombardi, 946 F.2d 604, 607 (8th Cir. 1991) (citing Turner v.

Sajley, 482 U.S. 78 (1987)); see also Oliver v. Powell, 250 F. Supp. 593, 608 (E.D. Va. 2002)

(“plaintiffs objection to the limitation of the size and weight of incoming and outgoing

correspondence fails because the provision is justified by a legitimate governmental interest”).

Before the Court is whether Virginia’s narrow definition of “legal mail” denies a pro se petitioner

access to the Court.4 The Court DIRECTS the Government to file a formal response to this

argument within thirty days of the date of this Order.

4 A claim for denial of access to courts requires a specific showing of actual injury, that a “nonfrivolous, post

conviction or civil rights legal claim has been frustrated or impeded.” Miller v. Kruse, No. I:13cvl083 (TSETRJ),

2014 WL 296398, at *2 (E.D. Va. Jan. 24,2014) (applying Lewis v. Casey, 518 U.S. 343,356 (1996)); see also United

States v. Stotts, 925 F.2d 83 (4th Cir. 1991); White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (a pro se “prisoner

'/£>/

• Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 11 of 12 PagelD# 429

VO.

CONCLUSION

For the reasons stated herein, Mr. Albritton’s Rule 60(b)(1) Motion (ECF No. 24) is

DENIED. Mr. Albritton’s Motion to Amend and Supplement (ECF No. 28) is DENIED as

MOOT. Mr. Albritton’s Motion for Evidentiary Hearing (ECF No. 29) is DENIED. Mr.

Albritton’s Motion for Summary Judgment (ECF No. 30) is DENIED for lack ofjurisdiction. Mr.

Albritton’s Motion to Admit a Transcript (ECF No. 34) is GRANTED with leave to supplement.

Mr. Albritton’s Motion to Compel and for Injunction (ECF No. 38) is DEFERRED pending the

Government’s Response, due within thirty days of the date of this Order.

To the extent necessitated by this holding, the Court also DENIES the certificate of

appealability required by Rule 22(b) of the Federal Rules of Appellate Procedure because Mr.

Albritton has failed to demonstrate a “substantial showing of the denial of a constitutional right.”

See Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004) (requiring certificate of appealability for

merits denials of Rule 60(b) motions to alter or amend judgment), partial abrogation recognized

by United States v. McRae, 793 F.3d 392, 399-400 & n.7 (4th Cir. 2015).

Mr. Albritton is ADVISED that if he intends to appeal this Order and seek a certificate of

appealability from the United States Court of Appeals for the Fourth Circuit, he must forward a

written Notice of Appeal to the Clerk of the United States District Court, United States Courthouse,

600 Granby Street, Norfolk, Virginia, 23510 within thirty days from the date of this Order.

The Clerk is REQUESTED to mail a copy of this Order to Petitioner DeVinche Javon

Albritton.

IT IS SO ORDERED.

must provide some basis for his allegation that the delay or failure in delivering his legal mail deprived him of

meaningful access to the courts”); Hayes v. Stanley, 204 F. App’x 304, 305 (4th Cir. 2006) (inability to perfect an

appeal is insufficient to establish actual injury); accord Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996).

• Case 2:16-cv-00737-AWA-LRL Document 39 Filed 03/12/19 Page 12 of 12 PagelD# 430

■c <*s

Arenda L. Wright Allen

United States District Judge

2019

Norfolk, Virginia

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6350

DEVINCHE JAVON ALBRITTON,

Petitioner - Appellant,

HAROLD CLARICE, Director of the Virginia Department of Corrections,

Respondent - Appellee.

No. 19-6464

DEVINCHE JAVON ALBRITTON,

Petitioner - Appellant,

H AROLD CLARKE, Director of the Virginia Department of Corrections,

Respondent - Appellee.

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

Norfolk. ArendaL. Wright Allen, District Judge. (2:16-cv-00737-AWA-LRL)

Submitted: August 22, 2019

Decided: August 26, 2019

PER CURIAM:

DeVinche Javon Albritton, a Virginia inmate, seeks to appeal the district court s

order* denying various postjudgment motions filed in Albritton’s 28 U.S.C. § 2254 (2012)

proceeding. The order is not appealable unless a circuit justice or judge issues a certificate

of appealability. See 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 Albritton 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

* Because Albritton filed numerous postjudgment motions in his federal habeas

proceeding, which the district court resolved in various orders, we note that the subject

order was entered on April 24, 2019.

Before KING and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Dismissed by unpublished per curiam opinion.

DeVinche Albritton. Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6674

DEVINCHE JAVON ALBRITTON,

Petitioner - Appellant,

HAROLD CLARKE, Director of the Virginia Department of Corrections,

Respondent - Appellee.

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

Norfolk. ArendaL. Wright Allen, District Judge. (2:16-cv-00737-AWA~LRL)

Submitted: October 17, 2019

Decided: October 21, 2019

Before MOTZ and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit

Dismissed by unpublished per curiam opinion.

DeVinche Albritton, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Volume 2

VIRGINIA:

283

CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

COMMONWEALTH OF VIRGINIA

DEVINCHE JAVON ALBRITTON,

Defendant.

)

f )

)

RECORD

CR10-3743

OPY

Before Hon.

Edward H.

Hanson,

Virginia Beach,

April 23,

Jr.,

judge;

and jury

Virginia

2013

oOo

APPEARANCES:

Commonwealth's Attorney's Office

(Mr. Thomas M. Murphy and Ms. Sara R.

Chandler), attorneys for the

Commonwealth.

Mr. Devinche Javon Albritton,

defendant, pro se.

Mr. Stephen P. Givando,

for the defendant.

✓

Fiduciary Reporting, Inc.

(.757) 482-2729

the

standby counsel

McDonald, K.

Nurse McDonald,

your SANE report,

that

this on every exam?

mbi

333

in going over your form,

in all of the questions you ask,

is this following protocol?

I mean, do you do

Yes,

And back in 1999 this was the form you

sir.

were limited to and the questions you were limited to?

Yes,

And the examination you were limited to?

Correct.

So you followed protocol as it was in

1999;

sir.

is that correct?

Yes,

Okay.

sir.

Now, Ms. McDonald,

I'm going to ask

having observed the injuries to the victim's

you

vagina

the jury, do you have an opinion based on your

training and experience as to whether those injuries

are consistent with consensual sex?

vaginal area, genitalia area,

describe for

I found them to be inconsistent with

consensual sexual intercourse.

;

MURPHY:

(

BY MR.

Direct

Okay.

MR. MURPHY:

Judge,

I'm going to offer

I'm going to count the pages out loud.

Fiduciary Reporting, Inc.

(757) 482-2729

One,

McDonald, K.

Okay.

Based on the recommendations by

Gaffney,

in 2001,

following the Virginia court case,

Johnston versus Commonwealth of Virginia,

challenging the scientific merit of expert testimony

in a court of law,

associations,

cannot be made without the scientific evidence that

established these relationships.

many experts and laypersons alike believe that if

women do not consent to intercourse,

than likely to have injuries to their genital area.

Based on the findings of this study and several other

studies,

can be identified on examination after both

nonconsensual and consensual intercourse.

scientific research in the field of forensic science

should include further studies using standard

protocols with trained investigators to establishing

interrater reliability for examinations.

potential cofounding variables such as prior sexual

history,

intercourse,

Cross

of the study.

in 2000

the SANE must remember that

correlations,

or casual explanations

Gaffney.

Currently,

they are more

there is evidence to suggest that injuries

condom and lubrication usage,

Therefore,

Addressing

rough

and marital rape.

Before the knowledge base of forensic

experts,

including SANES,

can be established,

Fiduciary Reporting, Inc.

(757)

482-2729

rigorous

McDonald, K.

348

scientific examining the numerous potential variables

following both consensual and nonconsensual

intercourse must be conducted.

scientific knowledge of evidence,

assault cases will set precedent for SANE testimony,

allowing the judges and allowing them to make

decisions based on facts rather than myths or

opinions.

Yes,

Applying the

findings,

and sexual

Do you agree with that conclusion?

Cross

sir,

All right.

I do.

Would you agree that that

article identifies a relevant factor that should be

required in considering the formulation of a SANE

expert opinion concerning alleged victim's injuries?

Sir,

this article was written in what?

I did my practice in 1999.

2006?

Okay.

I'm glad to see that there has been

further evidence collecting based on different

studies.

I had to base my opinions based on my background and

my education in 1999.

But in 1999 we didn't have those studies,

I understand.

But you were looking at

some facts and you were filling in gaps?

I didn't fill in any gaps,

Fiduciary Reporting, Inc.

(757) 482-2729

sir.

McDonald, K.

So you

I had

the information that I had in

you examined the victim and didn't know

know her prior

her prior sexual history during your exam?

349

So would you agree that you assume when

her sexual history?

No,

Did you know

did you

Did you know

sir, because that was not required of

me to ask that information prior

in 1999.

did you know that she

okay.

prior sexual history before

just assume

injuries resulted from one sole person, her having sex

with one person?

I'm sorry.

Okay.

So if you didn't know her

during your exam, you

would you agree, you assume that those

Sir,

it's not up to me to determine

whether or it was one person or more than one person.

Okay.

I'm basing my information on the injuries

that I saw based on my knowledge and education in

1999 .

SBAiHt* 7)

1999 is based on what my opinion was.

Cross

that .

I understand that, but

I understand

• But you formulated an opinion

Yes,

sir.

saying that she received some injuries.

Fiduciary Reporting, Inc.

(757) 482-2729

McDonald, K.

Cross

350

Did you formulate

you see

one person and that was it?

did

did you assume that this woman had sex with

Sir,

the number of people she had sexual

intercourse with is not in my purview to investigate.

That's up to the detective.

the injuries, make sure that her injuries are not life

threatening,

emergency department.

outside,

at Chesapeake General Hospital.

Mine is to solely look at

and if they are to transfer her to the

That's why the exam was done

just in the area of the emergency department

But you are

And you the other

finish?

Yes, ma'am.

Thank you.

And the detectives are the

ones that determine how

what the background is as

far as the incident is concerned.

excuse me.

May I

I'm sorry.

My job was to look at her injuries, to

collect the evidence

when you formed your opinion,

Right.

and to determine if this was to be due

to consensual intercourse.

So you didn't consider maybe it could have

Fiduciary Reporting, Inc.

(757)

482-2729

McDonald, K.

Cross

351

happened somewhere else because you just didn't know?

Sir,

I don't determine where it happens.

I just determine that there have been injuries.

There have been injuries.

And that

But those injuries

what I'm saying

THE COURT:

Let her finish.

Okay.

I'm sorry,

sir.

I lost my train of

thought with that.

I keep losing mine too.

The injuries that

you're saying resulted

isn't it true,

did you speculate that this woman only had sex with

one person at that time to receive those injuries?

BY THE DEFENDANT:

in fact,

Sir,

that apparently resulted,

that you may have assumed or

I don't assume or speculate anything.

It's not my job to determine who she had intercourse

with prior to or during the alleged incident.

is to look to see if there are injuries and to collect

the evidence.

So you just

I am part of a big team of investigators.

My j ob

I do not investigate.

Fiduciary Reporting, Inc.

(757)

482-2729

McDonald, K.

The investigator or the detective is the one that

asked the questions about the incidence prior to or

where the place it happened.

whatever information they wanted to give you

basically?

My investigation is basically to take the

physical evidence

physical evidence request

recovery kit,

there are injuries,

give the information to the police department,

physical evidence recovery kit.

to collect the evidence,

to determine if

to document the injuries, and to

the

But would you agree that your SANE exam

was incomplete,

facts prior to her that day -- her sexual history

prior to your examination?

So your investigation is tailored to

352

Cross

that you did not know anything

No,

sir.'

My SANE exam, based on the

guidelines in 1999, was complete.

They were complete?

Yes,

So you just

sir,

they were.

so basically somebody come

but isn’t it true that you said

in,

that

variable of the prior sexual history?

any

they could

I 1m sorry.

Sir,

You failed to consider the

I don’t have to know the variable of

Fiduciary Reporting, Inc.

(757)

482-2729

McDonald, K.

353

any prior sexual history to be able to collect

evidence to document injuries.

But shouldn't all of the variables be

considered?

(

Cross

In 1999 we were given guidelines.

The

guidelines specifically stated this was my job.

were my protocols.

investigation was to be taken on by the police

department to determine what they found and if this

was indeed something that should be further

investigated.

Oh.

Nothing beyond that.

These

The

So, again, your opinion was based on

what the detectives told you and what the victims

told

My opinion was based on my exam.

But your exam was not looking for the

truth apparently?

MR. MURPHY:

Judge,

THE COURT:

Sustained.

objection.

BY THE DEFENDANT:

Commonwealth?

Are you biased in favor of the

No,

defense attorney,

sir.

Part of my training was with the

and I learned a lot from the defense

Fiduciary Reporting, Inc.

(757) 482-2729

McDonald, K.

IDl

Sure you have.

And why do you say

and

why do you say you're not biased?

saying that you base your opinion of the examination

on what the detectives tell you?

No,

Do you recall

I don't recall saying that.

information from the detectives so that I know

where

I get my

And you go no further.

to look for the physical evidence.

Then I talk to the victim or the alleged patient and

ask her where it happened based on the fact that the

crime lab was backed up and we were asked to just get

evidence and to ask the questions on the form so that

they would know where to investigate or to test the

evidence first.

Okay.

How is it,

then,

that you can give

this jury an expert opinion stating that based upon a

reasonable degree of medical probability when,

fact, you were clearly ignorant of facts and

circumstances and both incompetent,

gathering and considering relevant factors which had a

direct bearing on the issues of the case?

354

attorney.

Cross

Sir,

incomplete in

the guidelines in 1999 indicated that

I was to collect evidence.

Fiduciary Reporting, Inc.

(757) 482-2729

McDonald, K.

I understand.

No,

You don't agree?

No,

Do you recall your testimony on March

25th

okay.

sir,

But do you agree that

I do not agree.

I do not.

I mean, March 27th, 2012?

No,

You don't recall your testimony?

at 253,

consider variables that had a direct effect on the

inj uries.

sir.

11 through 14.

This is

I asked you if you failed to

And your answer was yes.

I was under a lot of stress and I must

have misunderstood your question.

Ma'am,

you was under a lot of stress.

repeated this question a few times.

in here saying that they're not variables now but

when,

Are you trying to alter your testimony to maybe

prevent or obscure the jury from finding the truth of

your incomplete exam?

355

Cross

And you're coming

in fact, you considered them variables then.

MR. MURPHY:

Judge,

I'm going to object.

He's testifying again.

THE COURT:

Sustained.

Fiduciary Reporting, Inc.

(757) 482-2729

McDonald, K.

356

Cross

BY THE DEFENDANT:

Your answers are quite different.

MR. MURPHY:

Judge,

I'm going to object to

the comments.

THE DEFENDANT:

All right.

THE COURT:

Sustained.

MR. MURPHY:

No questions.

THE DEFENDANT:

I'll move on.

(

BY THE DEFENDANT:

Do you recall your testimony when I asked

you whether

failed to receive any of those answers concerning

details of the victim's sexual intercourse with her

husband that morning prior of the alleged injur

sorry.

ask and receive any of those answers concerning

details of the victim's sexual intercourse with her

husband the morning prior of the alleged incident you

failed to consider such relevant and material

variables which clearly could have had a direct

bearing on the issue of the victim's alleged injuries

that you observed?

do you recall me asking you whether you

I 'm

Do you recall me asking you if by failing to

No.

Yes .

Do you recall that question?

Can I see that question?

Fiduciary Reporting, Inc.

(757) 482-2729

McDonald, K.

BY THE DEFENDANT:

This is at 251.

I don't recall it, but it's there.

So you

must have asked it.

to that was, And

And your answer was

you're right.

I could have.

asked you about a variable, again,

acknowledged that it was a variable.

have,

do you say about that?

I don't know.

I mean,

But you could

What

I couldn't consider anything other than

what my guidelines were in 1999.

Again,

I asked you how did you

how

would you conduct your exam and you said you were

basing your examinations on what the detective tells

you.

what the detective tells you.

Am I correct?

obj ect.

different ways.

Am I correct?

And, Judge.

I'm going to

He's asked and answered this about ten

You base your examinations on

MR. MURPHY:

and you

but you just didn't want to consider it.

Your Honor?

THE DEFENDANT:

357

Cross

THE DEFENDANT:

the question.

I didn't ask and answer

I asked her does she

THE COURT:

I think the witness can answer

Fiduciary Reporting, Inc.

(757) 482-2729

McDonald, K.

358

Cross

that question.

THE WITNESS:

detective told me?

I based my exam on what the

Yes .

Is that your question?

Yes .

The detective comes in and he tells me

BY THE DEFENDANT:

Do you base your examination -

that he feels there's been an alleged sexual assault.

And you base your examination -

THE COURT:

THE WITNESS:

Let her finish.

And when I speak to the

I ask her why she's there,

And i f

my patient,

she indicates that she's there because of an

alleged sexual assault,

I need to do an exam and I need to collect

evidence at the request of the police department.

then I must conclude that

BY THE DEFENDANT:

So if a detective doesn't tell you

something, what do you do with that missing

information?

Do you fill in the gaps or do you assume

or speculate?

What do you do?

I don't fill in any gaps,

Fiduciary Reporting, Inc.

(757) 482-2729

I don't assume,

-----------

Motion Under 28 U.S.C. § 2244 For Order Authorizing District CoIjrt ,,

to Consider

second or Successive Application for Relief Under 28 U.S.C. §§!2254

or 2255

United States Court of Appeals for the Fourth Circuit

Name of Movant

Prisoner Number

Dt^mche, Omoa fyl&fUlntt

Place o, Confinement ^

Case Number

(leave blank)

6>riecf>0*4,l Cefi/eS,----------- =------------

L*tUss En.de/DPJZf&t/P.,

ZX'IU

l/Blj

In Re:

Movant

1. Name and location of court which entered the judgment of conviction from

which relief is sought:

7kn/{iMin'ui£e.ack Ci/tui/daN-^HlS/hfiiMoPl/w/, 1/^/AkKmcLldy/jpg 23 VS7

2. Parties’ Names:

•'.3. Docket Number:.

1 0T If l

6/1/0-3723

vs. DeV,Adte/ktfr;#T>»i

hfoi/mbe./' 37, Roto

_4. Date Filed:

! l'/f?,p/u<> 30 I/Oa.A-

5. Date of judgment of conviction:

6. Length of sentence: \

7. Nature of offense(s) involved (all counts):

aoo

feh/e

O^Not Guilty

8. What was your plea? (Check one)

□

[Guilty

9. If you pleaded not guilty, what kind of trial did you have? (Check one)

C Judge only

□ Yes

10. Did you testify at your trial? (Check one)

11. Did you appeal from the judgment of conviction? (Check one)

Nolo Contendere

ra No

□

n^Yes

12. If you did appeal, what was the

Name of court appealed to:

nty^qinla.

foVifitke

Parties' names on appea!:_

Docket number of appeal:

Result of appeal:

'Ui

('oMMoAWt&jfh d/ \/MUhU.

—Date of decision:

....

JmmAy 12. 20.3

u&fij&d &H,ri f{&-fui t d. Oi.smi.6

13' t?^!rfthan,afdireCt.!PPeal fr°m thS iudgment of conviction and sentence, have you filed any other petitions applica

ions for relief, or other motions regarding this judgment in any federal court?

(§Tes

LD No ' ^

*•. Tj

14. If you answered “Yes" to question 13, answer the following

questions: A. First Petition, Application, or Motion

Ho^folK, ZM/Mi# 23513

Haloid tiwfce* OiWfe**T ofi

vs. \yA- At>p+

(1) In what court did you file the petition, application, or motion?

(2) What were the parties' names?. Dti/Mche OcOtdA AI&ftHvii

(3) What was the docket number of the case?

(4) What relief did you seek?

3.\Uc.\/737

%> Vetijok, /’mVidms 6>d3e/ihtii£ilD('ckf\a. ft/esM jafyT/'i&i

(5) What grounds for relief did you state in your petition, application, or motion?

^ Yes

(6) Did the court hold an evidentiary hearing on your petition, application or motion?

□ No

(7) W hat was the result?

| | Relief granted

(8) Date of court's decision:

| Relief denied for

failure to exhaust

| | Relief denied on the merits

[^//Relief denied for procedural default

TlUfck 6,

B. Second Petition, Application, or Motion

VjAjjyifa, Nohki^,

(1) In what court did you file the petition, application, or motion?

(2) What were the parties' names?

OAdOfl A\MPitfall

(3) W hat was the docket number of the case?

0^- i ^ k

“73 *7________ j____________________ .

(4) What relief did you seek? fU/fcf //W# Mwvh

j'udmBd^lA^Ltk^Auk

(5) What grounds for relief did you state in your petition, application, or motion?

(6) Did the court hold an evidentiary hearing on your petition, application or motion?

(7) W hat was the result?

PI Relief granted

(8) Date of court's decision:

Yes

n Relief denied on the merits

ftf^elief denied for procedural default

| Relief denied for

failure to exhaust

Mmk 12,2ol<f

-3-

93516

vs. l/A-f)pjbr'

)

C. Third and Subsequent Petitions, Applications, or Motions

For any third or subsequent petition, application, or motion,.attach a separate page providing.the. information ___

required in items’ (f) through (8) above for first and second petitions, applications, or motions.

D. Prior Appellate Review(s)

Did you appeal the results of your petitions, applications, or motions to a federal court of appeals having

jurisdiction over your case? If so, list the docket numbers and dates of final disposition for all subsequent

petitions, applications, or motions filed in a federal court of appeals.

First petition, application, or motion

Second petition, application, or motion

Subsequent petitions, applications or motions

Yes

i/ 'Yes

Yes

Appeal No

Appeal No.

_______ I_________

_______ i_________

_________________

________________

if you did not appeal from the denial of relief on any of your prior petitions, applications, or motions, state which

denials you did not appeal and explain why you did not.

15. Did you present any of the claims in this application in any previous petition, application? or (notion for relief

under 28 U.S.C. § 2254 or § 2255? (Check one)

□Yes

ErNo !

16. If your answer to question 15 is “Yes,” give the docket number(s) and court(s) in which sucri claims were raised

and state the basis on which relief was denied.

17. if your answer to question 15 is “No," why not? This Court will grant you authority to file in trie district court

only if you show that you could not have presented your present claims in your previous § 2254 or § 2255 app

lication because ...

A. (For § 2255 motions only) the claims involve “newly discovered evidence that, if proven and viewed in light

of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found [you] guilty"; or,

B. (For § 2254 petitions only) “the factual predicate for the claim could not have been d scovered previously

through the exercise of due diligence" and “the facts underlying the claim, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found [you] guilty of the offense'; or,

C. (For both § 2254 and § 2255 applicants) the claims involve “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court [of the United States], that was previously

unavailable."

-4-

I did not present the following claims in any previous petition, application, or motion for relief under 28 U.S C

§ 2254:

I did not present the claims listed above in any previous petition, application, or motion because

Movant prays that the United States Court of Appeals for the Fourth Circuit grant an Order Authorizing the

District Court to Consider Movant's Second or Successive Application for Relief Under 28 U.S.C. §§ 2254 or

2255.

22*

Movant's Signature

I declare under Penalty of Perjury that my answers to all questions in this Motion are true and correct. Executed

Pknh 11, &t>2&

,.f>

[date]

Movant's Signature

Proof of Service

A copy of this motion and all attachments must be sent to the state attorney general (§ 2254 cases) or the

United States Attorney for the United States judicial district in which you were convicted § 2255 cases).

I certify that on

I mailed a copy of this motion and ail attachments

[date]

1JctSvft

6^57

at the following address:

L/A

State of \/ tf-dk- r\l <k_

County of

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On this

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fnr^knownito be the Person who executed the

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execution was of his/her free act and deed.

I certify that the^bove notarv^s not a oartv to this action.

SEAL (signed)

Signed: V"

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NOTARY FHJBLIC

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-mbit'

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

DEVINCHE JAVON ALBRITTON,

Petitioner,

Criminal No. 2:16cv737

HAROLD CLARKE,

Respondent.

ORDER

Before the Court are a Motion to Compel and for Injunction, a “Renewed Motion to Admit

a Trial Transcript,” a Motion to Alter or Amend the Court’s Judgment denying a Motion for Relief

from Judgment denying a petition for a writ of habeas corpus filed pursuant to 28;U.S.C. § 2254,

a Motion to Supplement, and a Motion for Evidentiary Hearing filed pro se by Petitioner DeVinche

Javon Albritton. For the following reasons, the Motion to Compel and for Injunction (ECF No.

38) is DENIED; the Renewed Motion to Admit a Transcript (ECF No. 41) is GRANTED; the

Motion to Supplement (ECF No. 47) is GRANTED; the Motion for Evidentiary Hearing (ECF

No. 49) is DENIED; and the Motion to Alter or Amend Judgment (ECF No. 42) is DENIED.

Background

Petitioner was convicted in April 2013 of Rape and Abduction with Intent to Defile and

was sentenced to a term of life imprisonment plus thirty years. See ECF No. 10 at 1-2. Mr.

Albritton filed a § 2254 petition presenting nine claims alleging violations ojf federal rights

regarding his trial, as well as regarding the denial of his appeal by the Virginia Court of Appeals

(jzx.k ibib ~S/)

Case 2:16-cv-00737-AWA-LRL Document 50 Filed 04/24/19 Page 2 of 6 PagelD# 586

and the denial of his petition for a writ of habeas corpus by the Virginia Supreme Court. See ECF

No. 1.

On April 20, 2017, the Attorney General of Virginia filed a Motion to Dismiss on behalf

of the state. See ECF No. 8. The matter was referred to a United States Magistrate Judge who

recommended granting Respondent’s Motion to Dismiss and dismissing the petition with

prejudice. After this Court adopted the Magistrate Judge's findings and recommendations, Mr.

Albritton filed a Motion for Relief from Judgment (ECF No. 24), a Notice of Appeal to the United

States Court of Appeals for the Fourth Circuit (ECF No. 25), a Motion for Evidentiary Hearing

(ECF No. 29), a Motion for Summary Judgment (ECF No. 30), a Motion to Admit Transcripts

(ECF No. 34), and a Motion to Compel and for Injunction (ECF No. 38). The Court denied the

Motions for Relief from Judgment, Evidentiary Hearing, and Summary Judgment. The Court

deferred ruling on the Motion to Compel and for Injunction pending a response from the

Government. That Response (ECF No. 46) was filed on April 11,2019.

II.

Motion to Compel and for Injunction

Mr. Albritton seeks an order requiring officials at his state prison to allow his family to

send him a hearing transcript. ECF No. 38. A pro se “prisoner must provide some basis for his

allegation that the delay or failure in delivering his legal mail deprived him of meaningful access

to the courts.” White v. White, 886 F.2d 721, 723 (4th Cir. 1989). Claims for denial of access to

courts requires a specific showing of actual injury, that a “nonfrivolous, post-conviction or civil

rights legal claim has been frustrated or impeded.”' Miller v. Kruse, No. I:13cvl083 (TSE/TRJ),

1 “A court must consider: (I) whether there is a valid, rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the

rights that remain open to the inmates; (3) the impact that accommodation of the asserted constitutional right would

have on guards and other inmates, and on the allocation of prison resources generally; and (4) whether any ‘ready

alternatives’ exist to the prison regulation.” Griffin v. Lombardi, 946 F.2d 604,607 (8th Cir. 1991) (citing Turner v.

Sqfley, 482 U.S. 78 (1987)).

IZAhiDir

Case 2:16-cv-00737-AWA-LRL Document 50 Filed 04/24/19 Page 3 of 6 PagelD# 587

2014 WL 296398, at *2 (E.D. Va. Jan. 24, 2014) (applying Lewis v. Casey, 518 U.S. 343, 356

(1996)); see also United States v. Stotts, 925 F.2d 83 (4th Cir. 1991). Inability to perfect an appeal

is insufficient to establish actual injury. See Hayes v. Stanley, 204 F. App’x 304, 305 (4th Cir.

2006); accord Cochran v. Morris, 73 F.3d 1310,1317 (4th Cir. 1996).

Mr. Albritton alleges that the prison limits parcel weight to one ounce unless deemed “legal

mail." ECF No 38 at 1. “Legal mail” must be mailed by “verified attorneys, officers of state,

federal, local courts and the Virginia State Bar.” ECF No. 38 at 3. As explained by the

Government, prison officials instituted these rules to combat drug smuggling via prisoner mail.

ECF No. 46 at 7-8. Mr. Albritton’s “objection to the limitation of the size and weight of incoming

and outgoing correspondence fails because the provision is justified by a legitimate governmental

interest.” Oliver v. Powell, 250 F. Supp. 593, 608 (E.D. Va. 2002). Moreover, the transcript has

been admitted. Accordingly, the Motion is DENIED.

III.

Renewed Motion to Admit a Transcript

Mr. Albritton filed the Motion to Admit Transcripts without a transcript attached thereto.

Soon after filing the motion and prior to receiving leave to supplement, Mr. Albritton filed the

transcript with the Court. ECF No. 35. On March 12, 2019, the Court granted Mr. Albritton’s

motion. Because the instant Renewed Motion to Admit Transcripts includes transcripts for the

Court’s consideration different from that admitted on March 12, the Court construes the Motion

as a separate, additional Motion to Admit Transcripts. The Motion (ECF No. 41) is GRANTED.

IV.

Motion to Alter or Amend Judgment

Mr. Albritton’s Motion must be decided by this Court before the Fourth Circuit can assert

jurisdiction over the appeal of this Court’s denial of habeas relief. “A notice of appeal filed before

the disposition of [a Rule 59 motion] shall have no effect. A new notice of appeal must be filed

(txhibirCase 2:16-cv-00737-AWA-LRL Document 50 Filed 04/24/19 Page 4 of 6 PagelD# 588

within the prescribed time measured from the entry of the order disposing of the motion.” Griggs

v. Provident Consumer Discount Co., 459 U.S. 56, 60 (1982); see also United States v. Johnson,

95 F. App’x 497, 497 (4th Cir. 2004) (holding that a “notice of appeal will not be effective until

the district court disposes of the motion to reconsider”). Upon issuance of this Order, the Notice

of Appeal will take effect.

Motion to Supplement

On April 15, 2019, Mr. Albritton filed a Motion to Supplement (ECF No. 47) his pending

Motion to Alter or Amend Judgment. For good cause shown, the Motion is GRANTED.

Motion for Evidentiary Hearing

On April 18, 2019, Mr. Albritton filed a Motion for Evidentiary Hearing (ECF No. 49).

“[A] federal court must consider whether such a hearing could enable an applicant to prove the

petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief...

. [Iff the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a

district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465,

477 (2007). On this record, an evidentiary hearing would not enable Mr. Albritton to prove factual

allegations that would entitle him to habeas relief. Rather, the facts in the record preclude habeas

relief. Accordingly, the Motion is DENIED.

Legal Standard

A Motion to Alter or Amend Judgment “may only be granted in three situations: (l) to

accommodate an intervening change in controlling law; (2) to account for new evidence not

available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Mayfield v.

Nat'l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012). “Rule 59(e)

(Exhibit-B)

Case 2:16-cv-00737-AWA-LRL Document 50 Filed 04/24/19 Page 5 of 6 PagelD# 589

motions may not be used... to raise arguments which could have been raised prior to the issuance

of the judgment.” Pac. Ins. Co. v. Am. Nat'lFire Ins. Co., 148 F.3d 396,403 (4th Cir. 1998).

Analysis

Mr. Albritton’s Motion addresses no “intervening change in controlling law” and does not

“account for new evidence.” The Court construes the Motion liberally as an effort to “correct a

clear error of law or prevent manifest injustice,” the third situation under which relief may be

sought under Rule 59(e).

The Motion must be denied because the Court made no “clear error of law” in its Order

denying relief from denial of Mr. Albritton’s petition. Rather than allege mistakes in the Court’s

Order, Mr. Albritton reverts to advancing the alleged merits of his denied petition and Motion for

Relief from Judgment. EOF No. 42. This Court has considered and dismissed identical arguments.

See ECF Nos. 22 and 39. Repeating previous, failed arguments is insufficient to demonstrate a

clear error or manifest injustice in the Court’s Order denying relief.

CONCLUSION

For the reasons stated herein, Mr. Albritton’s Motion to Compel and for Injunction (ECF

No. 38) is DENIED; the Renewed Motion to Admit a Transcript (ECF No. 41) is GRANTED;

the Motion to Supplement (ECF No. 47) is GRANTED; the Motion for Evidentiary Hearing (ECF

No. 49) is DENIED; and the Motion to Alter or Amend Judgment (ECF No. 42) is DENIED.

To the extent necessary, the Court also DENIES the certificate of appealability required

by Rule 22(b) of the Federal Rules of Appellate Procedure because Mr. Albritton has failed to

demonstrate a “substantial showing of the denial of a constitutional right.” See Reid v. Angelone,

369 F.3d 363,369 (4th Cir. 2004) (requiring certificate of appealability for merits denials of similar

Rule 60(b) motions to alter or amend judgment), abrogated in part by United States v. McRae, 793

)

(Bdvh i ^ -£)

Case 2:16-cv-00737-AWA-LRL Document 50 Filed 04/24/19 Page 6 of 6 PagelD# 590

F.3d 392, 399—400 & n.7 (4th Cir. 2015). The Court acknowledges that Mr. Albritton filed a

Notice of Appeal before entry of this Order. That Notice now takes effect.

The Clerk is REQUESTED to mail a copy of this Order to Petitioner DeVinche Javon

Albritton, the Virginia Attorney General’s Office, and the Clerk of Court for the United States

Court of Appeals for the Fourth Circuit.

IT IS SO ORDERED.

Arbnda-Lr-Wri ght Allen

United States District Judge

;i <2

lorfolk, Virginia

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

DEVINCHE JAVON ALBRITTON,

Petitioner,

Criminal No. 2:16cv737

HAROLD CLARKE,

Respondent.

AFFIDAVIT

State of Virginia, City of Richmond, to-wit:

MARIE VARGO, first being duly sworn, states as follows:

1. I am the Virginia Department of Corrections (VDOC) Corrections Operations

Administrator. My duties include oversight of Offender Management Services, Offender

Drug Testing and Support, the Visitation Unit and the Statewide VDOC PREA/ADA

Coordinator.

;

2. The information contained in this affidavit is based on personal knowledge and records

maintained in the regular and ordinary course of business.

3. I am generally aware of this petition filed by offender DeVinche J. Albritton (#1016653)

which includes a complaint that mailroom staff at Sussex II Correctional Center denied

his receipt of a package marked as "legal mail” and sent by his family. According to

offender Albritton, the package contained his suppression hearing transcript.

4. Although offenders retain certain First Amendment rights to correspondence and

visitation with non-offenders and family members, correctional administrators also have

EXHIBIT

responsibilities under the Code of Virginia to maintain security, discipline, and good

order in their facilities. These responsibilities include the control of contraband entering

the prisons, control over disruptive or illegal activities, and concern for the safety and

well-being of offenders and institutional staff.

5. In an effort to reduce and eliminate the quantity of drugs and substances that were

entering the prisons, VDOC officials revised visitation and correspondence policies

effective April 22, 2017.

6. I recently re-examined overdose and drug statistics for time periods both before and after

the amended correspondence policy went into effect. Based on statistical information

available to me, there has been a marked decrease in the number of confirmed and

suspected drug overdose incidents in VDOC facilities. There likewise has been a

noticeable decline in the number of confirmed drug overdose deaths in VDOC facilities.

Finally, there has been a drastic decrease in the npmber of confirmed and suspected drug

possession incidents in VDOC facilities.

7. VDOC’s mission is to improve public safety. The presence of drugs in the facilities

undermines this goal, and the correspondence policy was amended in order to improve

public safety in the Commonwealth of Virginia.

8. VDOC has become aware of an increased rate pf opioids that are being smuggled in

through die mail. As the nation and the general pjublic has faced an increasing epidemic

of opioid abuse and overdoses, so, too, has VDOCl

9. The mailing of Suboxone strips, in particular, hps been increasing and contributing to

inmate opioid overdoses.

10. Suboxone strips are medicated strips that are prescribed to treat opioid addiction. When

properly used, they are to be placed below the tongue and dissolved. The purpose of the

strips is to treat opiate-based addictions. The scrips can also be abused in an attempt to

achieve a “high.”

11. Suboxone strips are small, generally between tie size of a dime and a quarter, though

they can be cut into smaller sizes. They are fairl; t translucent and can be easily concealed

inside of a letter, card, or envelope.

12. Despite VDOC officers opening and inspecting all incoming offender mail for

contraband, these small strips were being conceajed inside of greeting cards and along the

seams of envelopes, sometimes by tape or other adhesive. Mailroom officers were unable

to detect all of the suboxone strips entering facilities through the mail, and strips were

frequently discovered in the possession of offenders. All of this played a significant role

in VDOC officials revising its correspondence policies in April 2017.

13. Other drugs, like LSD (“lysergic acid diethyamidje”) or “acid” are also produced in a strip

form that can be easily concealed on or in paper and correspondence similar to the

methods used for the Suboxone strips.

14. In order to rectify this problem, VDOC took steps to significantly reduce the amount of

paper items that an offender may receive in the mail.

15. Previously, VDOC policy permitted offenders to receive incoming general

correspondence via the mail as long as the correspondence was processed by the United

States Postal Service as equal to or less than the contents of a one-ounce (1 oz.) domestic

first class letter. In practice, this rule amounted to permitting mailed envelopes containing

approximately five sheets of typical-weight copy paper or one sheet of paper and six

photographs. The mail could be opened and inspected, and if it passed inspection, all of

the mail items would be passed along to the offender. These page-limit and weight

restrictions did not apply to legal mail, special pjurpose mail, educational correspondence,

packages from a vendor, or mail from a federal, jstate, or local government agency.

16. VDOC recognized that almost all of the contrab ind that was entering prisons through the

mail came from family members and friends of offenders and not from legal mail.

Typically, vendors, government agencies, attorneys, and educational organizations are

not the parties sending in unauthorized items or drugs via the mail.

[

17. A. David Robinson circulated a memorandum irj March of 2017 announcing a change in

mail procedures.

As the memorandum noted, all offender general correspondence

(including the envelope) will be photocopied in jthe institutional mailroom. A maximum

of three black and white photocopied pages (fipnt and back) will be provided to the

offender. Each item in the envelope - such as jthe envelope itself, a photograph, or a

newspaper clipping - will be photocopied onto aj single page. Once the items have been

photocopied, the original items are destroyed

Enclosure A, A. David Robinson

Memorandum.

18. If the incoming correspondence exceeds the page limit restriction or cannot be copied

onto an 8.5” x 11” sheet of paper, the entire corr sspondence and all enclosed items will

be returned to the sender along with a Notice 6f Unauthorized Correspondence form

advising the sender of the reason for the retumj Offenders are no longer permitted to

possess original pieces of paper mail, including original letters, cards, or photographs.

19. This new policy does not apply to legal mail, special purpose mail, educational

correspondence, packages from a vendor, or mail from a federal, state, or local

government agency. Legal correspondence is! defined as: Correspondence sent to or

received from verified attorneys, officers of state, federal, and local courts, the Virginia

State Bar, and tort claims filed with the Division of Risk Management; the sender must

clearly identify outer envelopes and contents as legal correspondence.

20. The mailroom officers in charge of photocopying and distributing incoming offender

correspondence are not instructed to read every piece of mail, or to- restrict the mail

offenders may receive based on the content of the communication. The updated incoming

correspondence policy applies to all incoming paper mail from the public, no matter what

the item says, depicts, or shows.

21. Prior to this change, VDOC issued memoranda advising offenders of the upcoming

]

policy change. On or about March 13, 2017, offenders were provided a letter from the

warden at the facility explaining the upcoming policy change. The incoming

correspondence policy became effective April 1^, 2017.

22. In addition to alerting offenders, VDOC posted the new policy on its public website at

]

https://vadoc.virginia.gov/ in order to inform the' public about the policy change before it

went into effect. The policy change was also covered in local newspapers.

23. While the new correspondence policy does require an increase in costs in the form of

photocopying and staff time spent in the mailroom,

VDOC decided that this increase was

warranted, given the number of recent and known inmate deaths that resulted from drug

overdoses. Additionally, the risk to the safety and health of offenders posed by drug

overdoses that do not result in death, but often require medical treatment, makes such a

change in procedure a rational choice.

MAREVARGO

Sworn and subscribed to before me, a Notary Pub ic, in and for the State of Virginia, City

of Richmond, on this S ^

day of April 2019.

$ &>■

Notary Public

My commission expires:

Cvlld 13 /

FED-CS-17

512 F.3d 223, Bell v. Bell,

--------------------- Excerpt from page 512 F.3d 241 follows --------------------Two Supreme Court cases establish that a prosecutor's false or misleading statement disclaiming the

existence of Brady material obviates the need for a petitioner to conduct an independent

investigation. Such material, if in the prosecution’s possession, and if not 'disclosed, is

therefore suppressed under Brady, even if it is available through another source.

In strickler,

the issue before the Court was whether the petitioner had "cause" for failing 'to raise his Brady

claim before the state trial court, > 527 U.S. at 283, 119 S.Ct. 1936, which, .as the Supreme Court

has explained, tracks Brady's "suppression" element.

> Banks v. Dretke, 540 U.S. 668, 691, 124

S.Ct. 1256, 157 L,Ed.2d 1166 (2004). The warden argued that because facts suggesting the basis for

the petitioner's Brady claim were publicly available, through trial testimony land a newspaper

article, the prosecution's maintenance of an open-file policy that did not include the evidence in

question was irrelevant. > Strickler, 527 U.S. at 284, 119 S.Ct. 1936,

The [Supreme Court

rejected this argument. Though the Court disagreed with the warden's contention that the factual

basis for the petitioner's claim was publicly available, it did not rely on this fact in crafting

the applicable legal standard. > (FN4) > Id. at 285, 119 S.Ct. 1936.

Instead, the Court held

that the petitioner established cause because (1) "the prosecution withheld exculpatory evidence,"

(2) "petitioner reasonably relied on the prosecution's open file policy as fulfilling the

prosecution's duty to disclose such evidence," and (3) the stare asserted that petitioner had

received "everything known to the government." > Id. at 289, 119 S.Ct. 1936. ;

In 3anks, the Supreme Court reaffirmed and extended Strickler, and reversed the Fifth Circuit's

holding that the petitioner could not demonstrate cause because he was not diligent in

investigating his Brady claim. > 540 U.S. at 695, 124 S.Ct. 1256.

The Banks Court did not take a

instead, the

position on whether further investigation would have led to the suppressed material;

Court found cause because the prosecution (1) "knew of, but kept back"

Excerpt from page 512 F.3d 242 follows

the Brady material;

(2) "asserted ... that it would disclose all Brady material;" and (3)

confirmed the petitioner's reliance on that representation by denying contrar| allegations in state

habeas proceedings. > Id. at 693, > 124 S.Ct. 1256.

In rejecting the warden's argument, Banks

clearly indicated that a contrary rule "declaring ’prosecutor may hide, defendant must seek’ is not

tenable in a system constitutionally bound to accord defendants due process."! > Id. at 696, 124

S.Ct. 1256 (framing the state's argument that the petitioner was not diligentjas an argument that

"the prosecution can lie and conceal and the prisoner still has the burden to I discover the

evidence" and rejecting this argument (alternation and internal citation removed)); see also > id.

at 695, 124 S.Ct. 1256 ("Our decisions .lend no support to the notion that defendants must scavenge

for hints of undisclosed Brady material when the prosecution represents that all such material has

been disclosed."). The rule emerging from Strickler and Banks is clear: Where the prosecution

makes an affirmative representation that no Brady material exists, but it in fact has Brady

material in its possession, the petitioner will not be penalized for failing to discover that

material.

The majority's attempt to distinguish this case from Strickler and Banks on the basis of

"absence of reasonable reliance" is utterly unpersuasive. Majority Op. at 236.

Petitioner

specifically requested that the prosecution provide impeaching evidence concerning its witnesses,

which would have included Davenport's sentencing documents. Accordingly, when the prosecution did

not provide any of those sentencing documents and informed Petitioner that it had provided "all

discoverable information in [its] file," J.A. at 499, Petitioner was entitled to "presume that

[these] public officials [had] properly discharged their official duties" and that no relevant

documents existed.

> Banks, 540 U.S. at 696, 124 S.Ct. 1256 (quoting > Bracyiv. Gramley, 520 U.S.

899, 909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997)). Under Strickler and Banks,j Petitioner’s ability

to uncover the disposition of Davenport's criminal charges by searching public records did not

relieve the prosecution of its duty to respond honestly and completely to Petp.tion.er' s discovery

request.

The majority's mischaracterization of Strickler and Banks is even more egregious in light of

the courts of appeals' consistent interpretation of these cases. Several of pur sister circuits

have recognized that prosecutors cannot knowingly misrepresent that Brady material does not exist

without running afoul of Banks and Strickler, see > Jennings v. McDonough, 490 F.3d 1230, 1239 & n.

8 (11 th Cir.2007) (denying Brady claim where the petitioner had equal access to the evidence and

"there is no allegation that the prosecution actively misled [the petitioner] about the existence

of the [Brady evidence]"}; > Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir.2004) ("[I]f the State

failed under a duty to disclose the evidence, then its location in the public record, in another

defendant's file, is immaterial."); > Gantt v. Roe, 389 F.3d 908, 912-13 (9th Cir.2004) ("While

the defense could have been more diligent . . . this does not absolve the, prosejcution of its Brady

responsibilities.... Though defense counsel could have conducted his own investigation, he was

surely entitled to rely on the prosecution's representation that it was sharijng the fruits of the

police investigation."), as have several separate opinions of this Court. Seje > United States v.

Graham, 484 F.3d 413, 422 (6th Cir.2007) (Batchelder, J. dissenting) {" [T]he |defense is entitled to

rely on the prosecution's representations regarding its compliance with its ^rady obligations.");

> 3ell, 460 F.3d at 767 (panel opinion) (Gibbons, J. dissenting) ("Miller . . .j did not disclose ...

ppepoSeA P&-hhov%

AO 241

(Rev. 01/15)

Page 2

PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF

HABEAS CORPUS BY A PERSON IN STATE CUSTODY

District:

United States District Court

Name (under which you were convicted):

F-aJhM i/i Miht'4.

Docket or Case No.:

Q%)/\vuk&

fiwttMof'fh 3>f@&choml

3>24 -D&H*Vmfnfa

Prisoner No.:

Place of Confinement:

Respondent (authorized person having custody of petitioner)

Petitioner (include the name under which you were convicted)

v Hwold

OeMwke Oat/w AWtrf®/]

The Attorney General of the State of:

16U6S3

Thtb 1/4 flepf a£6>/,ftc6o *LS

l/ir^j/1 i a

PETITION

(a) Name and location of court that entered the judgment of conviction you are challenging:

7h& i/iM/Hiti Seaxsh £i/'uArf' fouW, QM7S Miffl/no PK^y,

Vis'ji nid Apju/jj \/it£j \fi , Q3

(b) Criminal docket or case number (if you know):

A fT'lO -37Q ?

py . ao2 ?

(a) Date of the judgment of conviction (if you know):

(b) Date of sentencing:

-Jp,Mm

Pr/a Piu,< 7 (? \jtna,i 2>

Length of sentence:

In this case, were you convicted on more than one count or of more than one crime?

Identify all crimes of which you were convicted and sentenced in this case:

/fyplu/Jivn v*!iwtv/ft'jp dfrA/p,

Claims Sfafti m ^AfM-ckmpnk

Yes

D No

Pave, ansf

AH O'

(a) What was your plea? (Check one)

»/n(1)

Not guilty

□

(3)

Nolo contendere (no contest)

□ (2)

Guilty

(4)

Insanity plea

'XHiDi

Page 16

AO 241

iRev 01 15)

Therefore. petitioner asks that the Court grant the following relief:

or am other relief to which petitioner ma\ be entitled.

Signature of Attornes (il'aiw j

I declare (or certif). \ erity. or state) under penal t\ of perjury that the foregoing is true and correct and that this Petiti on tor

Writ of I (abeas Corpus was placed in the prison mailing s\stem on

I certify that the above nptary is not a party to this action.

(date).

fxecuied (signed) on

X CO CtS

£*\ccJ3o

yy\a(kh SI,

(niunth. date. soar).

State of _ 1/ * ro i i c*.

County of _________ y.C t) ■’•t

On this I

day of

t\A ay c U

20-2^

to me known to be the person who executed the

foregoing instrument, and acknowledged that the

execution was of his/her free act and deed.

SEAL (signed) £u&cU CjJLOpu j&G

‘SfOKA-t*-

NOTARY

PUBLIC

v ■jj

REG. #7788119 : * Zd\ MY COMMISSION •

NOTARY PUBLIC

'''$$&

''/min'''

Signature of Petitioner

It'the person signing is not petitioner, state relationship to petitioner and explain whs petitioner is not signing this petition.

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USCA4 Appeal: 22-141

Doc: 4

Filed: 04/05/2022

Pg: 1 of 1

FILED: April 5, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-141

In re: DEVINCHE ALBRITTON

Movant

ORDER

Movant has filed a motion under 28 U.S.C. § 2244 for an order authorizing

the district court to consider a second or successive application for relief under 28

U.S.C. § 2254.

The court denies the motion.

Entered at the direction of Judge Motz with the concurrence of Judge King

and Judge Quattlebaum.

For the Court

/s/ Patricia S. Connor. Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.