Saunders v. Clarke

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JAMAL KEMO SAUNDERS, a/k/a FOREVER AL-MANI HAMILTON, Petitioner, v. DIRECTOR HAROLD CLARKE, Respondent.

No. 7:23-cv-416

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

September 5, 2024

MEMORANDUM OPINION

Michael F. Urbanski Senior United States District Judge

Jamal Kemo Saunders, an inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 2013 Danville Circuit Court conviction for possession of a firearm by an individual under the age of 29 with a prior violent juvenile conviction pursuant-to Va. Code § 18-2-308.2.^[1] Respondent filed a motion to dismiss, ECF No. 11, which is ripe for disposition. After thoroughly reviewing the record, the court GRANTS in part and DENIES in part the motion to dismiss. The court GRANTS the motion as to Claims One and Three and DENIES the motion as to Claims Two and Four. Additionally, the court ORDERS the appointment of the Federal Public Defender for Saunders and further ORDERS the parties to engage in 12Q days of discovery limited to the issues raised by Claims Two and Four. The court will hold an evidentiary hearing on Claims Two and Four after the close of discovery.

In sum Saunders has presented evidence that the Commonwealth possessed, but did not disclose to the defense, material and potentially exculpatory evidence consisting of metal fragments that had been surgically removed from the victim's body after the shooting in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Claim Two). These fragments may raise the reasonable probability that the weapon Saunders possessed was not a firearm as that term is defined with respect to Va. Code § 18.2-308.2(A), but rather a pellet gun. See Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002) (“We hold that in order to sustain a conviction for possessing a firearm in violation of Code § 18.2-3Q8.2, the evidence need show only that a person subject to the provisions of that statute possessed an instrument which was designed made, and intended to expel a projectile by means of an explosion.”); Startin y. Commonwealth, 281 Va 374, 382, 706 S.E.2d 873, 878 (2011) (“[N]either the replica at issue here nor the BB gun in Holloman [ v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 (1980)] would be sufficient to convict a person under Code § 18.2-308.2 for possession of a firearm by a convicted felon because they are not ‘designed, made, and intended to fire or expel a projectile by means of an explosion.'” (quoting Armstrong, 263 Va. at 583, 562 S.E.2d at 145)). However, there remain several unresolved factual issues as the Commonwealth disputes that it ever had these metal fragments in its possession. Because the record is insufficiently developed on this point, the court directs the parties to engage in 120 days of discovery on Claim Two.

Additionally, factual disputes preclude the court from ruling on Saunders' claim for ineffective assistance of counsel (Claim Four). Saunders claims that his trial counsel failed to investigate and obtain certain of the victim's medical records, including CT and x-ray images, which could shed light on the issue of whether the object that pierced the victim's body was a bullet from a firearm or a pellet from a pellet gun. Accordingly, the parties are directed to engage in discovery on Claim Four. The court will hold an evidentiary hearing to address the merits of these two claims at the close of discovery.

I. Background

The court will first review the events giving rise to this petition, including the relevant facts underlying Saunders' criminal case and the subsequent evidentiary developments. The court will then review the procedural history that predated this petition.

A. Summary of the Evidence

On the afternoon of July 4, 2013, Danny Roberts^[2] and Timothy “Tank” Brandon^[3] were walking down Worsham Street in Danville, Virginia celebrating Independence Day. They passed Saunders standing on the front porch of a nearby house. Saunders called out to Roberts, getting his attention, and told Roberts “I'm going to shoot you in the face.” Saunders pointed a weapon at Roberts, which appeared to Roberts to be a .22 caliber long rifle, and fired twice, hitting Roberts in the chest.

No loud sound, or “bang,” came from the weapon when Saunders fired it. Instead, the weapon made a “pshht” sound. Roberts did not feel anything when he was hit, returning home without further incident. ECF No. 13-6, at 44-46. Upon arrival, Roberts' girlfriend noticed that he had blood on his shirt, and Roberts expressed his surprise because he had not felt anything that would cause him to bleed. Id. Roberts found the wound and patched his injuries. Id; He did not seek medical attention for four days, until on July 8, 2013, he went to the hospital for treatment, at which time he told the medical professionals that he had been shot. Id. Officer R. L. Compton of the Danville Police Department spoke with Roberts and initiated an investigation into the shooting. See ECF No. 10-1, at 90.

Saunders subsequently was indicted for malicious wounding, use of a firearm in commission of a felony, and possession of a firearm under age 29 with prior violent juvenile conviction related to the events of July 4,2013.^[4] Saunders pled not guilty to these three charges and waived his right to trial by jury, agreeing instead to be tried by the trial court as factfinder. At the November 20,2013, trial, Roberts testified that Saunders had shot him with a .22 caliber rifle. He also testified, however, that the weapon did not sound like a firearm when Saunders shot it, and that he knew it was not a real gun when he heard it. The court convicted Saunders of these three charges and on January 16, 2014, sentenced Saunders to five years of imprisonment on the possession charge, three years of imprisonment on the use of a firearm in the commission of a felony charge, and eight years of imprisonment on the malicious wounding charge. The court suspended five of the eight years imposed on the malicious wounding charge for a total period of 11 years of active incarceration.

More than six years later, in October 2020, Saunders contacted Penny Roberts, Danny Roberts' mother, and informed her that the trial court sentenced him to five years of incarceration on the possession charge because Danny Roberts testified that Saunders shot him with a .22 caliber firearm. Penny told Saunders that, before his trial, she witnessed her son tell the prosecutor that Saunders had used a .22 caliber air pellet rifle, not a firearm, to shoot him. On December 9, 2020, Penny signed a declaration consenting to Saunders' possession of Danny Roberts' medical records associated with his July 8, 2013, treatment. ECF No. 10-1, at 38.

In relevant part, Danny Roberts' medical records contain CT scans and an x-ray of his chest. See id; at 43-50, 53, 58-62. Dr. Stacy Jo Williams ordered chest and abdominal/pelvic CT scans, which were reviewed by Dr. G. Michael Spencer. Id. at 58-59. Dr. Spencer's report stated that “[t]here is a metallic foreign body which may represent a bullet or bullet fragment seen in the subcutaneous tissues of the left side of the upper abdomen.” Id. at 58. In the impression section of his report, Dr. Spencer stated “[s]ubcutaneous metallic foreign body in the left upper abdomen without associated fractures, soft tissue air or hematoma. This presumably represents a subcutaneous bullet or bullet fragment.” Id. On further review, Dr. Douglas R. May found that the CT scans showed “apical blebs[,] ... probable fatty infiltration of the liver...[, and] mild pancreatic duct dilation,” but that "[n]o other abnormalities are seen.” Id. at 61. Dr. Williams also ordered a chest x-ray, which Dr. Spencer found showed “[n]o acute plain radiographic findings.” Id. at 60.

On October 12, 2021, Penny Roberts signed an affidavit recounting her phone call with Saunders, the interaction she observed between her son and the prosecutor before Saunders' trial, and several additional statements she observed her son make regarding the fact that Saunders had shot him with an air rifle, not a firearm. See ECF No. 10-1, at 29-37.

After receiving Roberts' medical records, Saunders contacted Ronald R. Scott, an independent forensic consultant who provided services related to firearms and ballistics analysis.^[5] See ECF No. 10-1, at 63-82. Scott reviewed Roberts' medical records, including the CT scans and x-ray image, and concluded that the object shown in the radiographic images was not a bullet, but rather a domed pellet, which can only be discharged from an air gun.^[6] Id., at 65-66. Scott explained that a domed pellet is defined by its distinctive shape, which includes a skirt, waist, and domed head. Id. at 66. Scott opined that the radiographic images “clearly show[] the rounded head, the tapered waist, and the skirt” of the domed pellet and that the object could not have been propelled from a firearm by explosive action. Id., Scott also stated that the “projectile wound of Danny Roberts is totally inconsistent with the wounding effect of a bullet discharged from a firearm by means of an explosive charge (propellant).” Id. Scott explained that the penetration of a .22 caliber bullet would produce “a temporary large wound cavity followed by the permanent, and much smaller, wound cavity after the projectile terminates in the soft tissue and the temporary cavity collapses” because of the bullet's heavy mass and- fast velocity. Id. In contrast, the mass and velocity of a domed pellet of a similar caliber is much lower. Id. Scott attached one of Roberts' radiographic images and annotated it to show the skirt, waist, and domed head of the object. Id. at 70.

Saunders alleges that on June 9, 2021,...