Barksdale v. Dotson

1

KIMBERLY MAYHEW BARKSDALE, Petitioner, v. CHADWICK DOTSON, Respondent.

Civil Action No. 7:23-cv-00724

United States District Court, W.D. Virginia, Roanoke Division

August 23, 2024

MEMORANDUM OPINION

Elizabeth K. Dillon Chief United States District Judge

Kimberly Mayhew Barksdale, a Virginia inmate proceeding pro se, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. She is serving a life sentence following a conviction for first-degree murder and the use of a firearm in the commission of murder. Petitioner raises several claims for ineffective assistance of counsel based on a variety of issues, including the pursuit of an insanity defense, petitioner's speedy trial rights, and petitioner's right to confront a witness, her daughter who testified on closed-circuit television. (See Habeas Pet., Dkt. No. 1.) Respondent has moved to dismiss the petition. (Dkt. No. 14.) Petitioner filed motions to appoint counsel (Dkt. Nos. 3, 13) and for an evidentiary hearing (Dkt. No. 12).

For the reasons stated herein, the court will deny the motions to appoint counsel and for an evidentiary hearing, grant the motion to dismiss, and deny Barksdale's petition.

I. BACKGROUND

A. Facts of the Crime

Petitioner was convicted of murdering her husband, Todd Barksdale. One of the fact witnesses at trial was Rebecca Smith, who worked at Express Lane Exxon in Altavista, Virginia.

Smith knew petitioner and Todd as customers of the store. (R. 1756-57.)^[1] Smith testified that petitioner talked to her a lot about her personal issues. (R. 1759.) Prior to his murder, Smith saw petitioner approach Todd while he was pumping gas, and petitioner was screaming and waving her hands and told him to “watch your back.” (R. 1760.) Petitioner came into the store, and Smith heard her say, “he better run.” (R. 1763.)

E.B., the daughter of petitioner and Todd, was twelve at the time of the murder and fifteen at the time of trial; she testified via closed-circuit television. (R. 1770-71, 1792.) E.B. testified that she loved her dad, got along with him, and he had never hurt her. (R. 1773.) E.B. had heard her mom, the petitioner, threaten Todd. One day she said, “I'm going to kill that son of a bitch.” (R. 1777-78.) Petitioner told E.B. that her father was a bad person, but E.B. never saw any proof of that. (R. 1778.) E.B. never saw her dad act angrily or mistreat petitioner. (R. 1799.)

On the day of Todd's murder, November 18, 2016, E.B. and Todd went to petitioner's home to look for E.B.'s cat and a video game. (R. 1780.) Todd also told E.B. that he was going to repair a hole in the fence. (R. 1781.) When they arrived, petitioner was sitting on the back porch. (Id.) They could not find E.B.'s cat, and E.B. thought her mother was acting odd and did not care about the cat. (R. 1782-83.) E.B. and Todd returned to his truck and drove over to the hole in the fence he was going to repair. (R. 1784-85.) E.B. was sitting in the passenger seat playing Pokemon Go as her father worked on the fence. (R. 1785.) E.B. heard a loud bang and jumped out of the truck; she saw petitioner with a gun in her hand and Todd on the ground slumped over with blood pouring down the side of his head. (R. 1786.) Petitioner told E.B. “this was all for you” and tried to hug her, but E.B. ran away to her neighbor's house. (R. 1789.) Petitioner chased E.B. but did not go inside the neighbor's house; E.B. told the neighbor what happened. (Id.) E.B. had not seen Todd arguing with petitioner that day. (R. 1791.)

Deputy Justin Wyatt arrived on the scene. (R. 1810.) Deputy Wyatt first spoke to E.B., who was scared, screaming, and very emotional. (R. 1811.) Deputy Wyatt then saw petitioner, pointed his weapon at her, and gave her a command to show her hands. When petitioner complied, she was detained in handcuffs. (R. 1812.) Deputy Wyatt observed Todd slumped on the ground. (R. 1814.)

Sergeant Michael Abbott also arrived on the scene. (R. 1819.) He observed a male behind his pick-up truck and between the truck and a fence on his knees. (R. 1820.) Sergeant Abbott identified the man as Todd and gave verbal commands as he approached. (R. 1821.) Sergeant Abbott saw no signs of life as he approached closer to the victim. (Id.) Sergeant Abbott located a handgun on the front steps of the house. (R. 1822.)

Analysis was conducted on the bullet taken from the victim's head during the autopsy and the firearm recovered from the scene. This analysis concluded that the bullet had been fired from that firearm. (R. 1861-62.)

The autopsy was performed by Dr. Gayle Suzuki. (R. 1876.) Todd had a gunshot wound behind the left side of his ear. (R. 1878.) The bullet passed through his skull, through the left side of the brain, through the brain stem, and lodged in the right side of his brain area. (Id.) The single gunshot wound was the cause of death. (R. 1879.) Dr. Suzuki testified that the bullet's path was a slightly downward trajectory. (R. 1883.) Dr. Suzuki testified that the bullet's trajectory resulted in “taking out the brain stem” and that Todd's death was “pretty much instantly, [] lights out.” (R. 1884.) On cross examination, Dr. Suzuki agreed that there was no way to tell how close the gun was fired to the body. (R. 1887.)

Petitioner testified in her defense. (R. 1902.) She testified that she was physically abused by Todd. (R. 1903.) She stated that Smith's testimony was inaccurate and that she never threatened Todd at the gas station. (R. 1909.) Petitioner testified that she shot Todd in selfdefense. (R. 1910.) First, she explained that Todd threw a big rock down, then she testified that Todd was going to hit her with a big rock, so she shot him. (R. 1912.) According to petitioner, Todd was standing and coming at her when she shot him. (R. 1915.) Petitioner also testified to her belief that Todd had men hiding in the woods to come after her and E.B. (R. 1940-50.)

Petitioner's daughter and Todd's stepdaughter, Tiffany Dawson, testified in rebuttal. (R. 1962.) Petitioner had kicked Dawson out of her house because Dawson defended Todd against petitioner's allegations. (R. 1962-63.) Dawson testified that petitioner had made false allegations against her as well and that she never saw Todd physically assault petitioner or E.B. (R. 1963.)

During the trial, the court had to sequester additional witnesses after Barksdale threatened a family member of the victim. (R. 1801-03.)

B. Trial Court Procedural History

Petitioner was convicted after a two-day jury trial on January 8 and 9, 2020, in Campbell County Circuit Court. On June 4, 2020, the trial court sentenced petitioner to life plus three years' imprisonment. The final judgment order was entered on June 16, 2020. Case Nos. CR17000248-00, CR19000072-00.

The Court of Appeals of Virginia granted in part and denied in part petitioner's appeal. (Resp't's Ex. 2, Dkt. No. 16-1.) After briefing, on July 20, 2021, the Court of Appeals affirmed Barksdale's convictions in an unpublished order. (Resp't's Ex. 3, Dkt. No. 16-2; Resp't's Ex. 4, Dkt. No. 16-3.) The Supreme Court of Virginia refused petitioner's appeal on January 31, 2022. (Resp't's Ex. 5, Dkt. No. 16-4.)

1. Speedy trial issues

Petitioner was indicted by a grand jury on July 10, 2017, for murder and use of a firearm in commission of a murder. (R. 74-75.) The murder charge had been certified from the Juvenile and Domestic Relations Court on June 5. (R. 3-4.) The case was continued by joint motion of the petitioner and the Commonwealth from July 10 to July 27, 2017. (R. 83.) On August 29, 2017, by agreement of the petitioner and the Commonwealth, the case was set for October 31. (R. 108, 1207-08.)

Petitioner moved for a continuance on September 20 and the case was continued until November 13, 2017. (R. 125, 1218-19.) By an order on November 15, 2017, the case was continued again pursuant to a joint motion to May 3, 2018. Petitioner agreed to waive speedy trial rights from October 31, 2017, to May 3, 2018. (R. 141.) On April 4, 2018, the court granted petitioner another continuance over the Commonwealth's objection. (R. 150, 1231-32.) On May 13, 2018, the parties agreed to set the trial for January 8, 2019, and petitioner waived speedy trial for the time period covered by the order. (R. 178, 1236-37.)

On November 19, 2018, the trial court granted the petitioner's request to represent herself and waive counsel, and appointed Jim Childress as standby counsel. (R. 330, 339.) On January 4, 2019, petitioner was heard, pro se, on multiple motions she had filed, including motions to suppress, to recuse the trial court, to recuse the Commonwealth's Attorney, and to change venue, all of which were denied. (R. 499, 529, 1336-37.) The trial court granted the Commonwealth a continuance from the January 9, 2019 trial date based on the petitioners' numerous filings. (R. 1357.)

The parties agreed to set trial for March 14, 2019, and to require petitioner to file any further motions ten days prior to trial. (R. 1359-60.)

On February 4, 2019, the Commonwealth filed a motion to nolle prosequi the murder charge. (R. 530-32.) The Commonwealth outlined the posture of the case, including the numerous continuances, and speedy trial waivers by the petitioner. Although the Commonwealth believed its speedy trial calculations were correct, the Commonwealth noted that the most prudent approach would be to indict the petitioner for first degree murder at the next grand jury, scheduled for March 11, 2019. (R. 531, 1374-75.) At the hearing on February 6, 2019, petitioner objected to the nolle prosequi. (R. 1376.) The trial court found that the motion was made in good faith, would not prejudice the petitioner, and granted the nolle prosequi, of the murder charge. (R. 1383.) Petitioner was...