Although the defendant argued the commonwealth violated his constitutional rights by failing to produce potentially exculpatory evidence, his petition for a successive habeas petition was denied because he could not demonstrate that newly discovered evidence would have resulted in a not-guilty verdict and thus could not establish prejudice.
Donell Blount was convicted of armed robbery in 2001 by a Virginia state court. His conviction was affirmed on appeal, and the Virginia courts later rejected his post- conviction petition. Blount then sought (and was denied) federal habeas relief.
Eleven years later, he filed another state post-conviction petition, which was again rejected. He now moves for authorization to file a successive federal habeas petition pursuant to 28 U.S.C. § 2244.
Blount seeks to file a successive petition on a claim that arises from newly discovered facts. Such a claim must satisfy three requirements. First, the claim must rely on a “factual predicate that could not have been discovered previously through the exercise of due diligence.” “Second, the claim must describe a constitutional error.” Third, the newly discovered facts, when viewed in conjunction with the evidence as a whole, must “be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”
Blount’s motion is predicated on his 2017 discovery of the incident report suspect list, wherein Earl Thomas described the person who robbed him as, in relevant part, a black male who was between 5’6” and 5’8”. Blount contends that the commonwealth violated his due process rights under Brady v. Maryland by suppressing the report, which he would have used to impeach Thomas’s certainty regarding the robber’s height, point to another man (Michael Spruill) as an alternate perpetrator and attack the police’s failure to treat Spruill as a suspect.
We conclude that Blount has not made the necessary prima facie showing as to prejudice. We do not think it reasonably likely that the relatively small discrepancy between Thomas’s description of the robbery suspect in the report (5’6” to 5’8”) and his testimony at trial (5’6” or shorter) gives rise to clear and convincing evidence that no reasonable juror would have convicted Blount had the juror known of it. As the commonwealth highlighted for the jury, ample evidence unrelated to the robber’s height supported Blount’s conviction.
Blount’s contention that he would have used the report to point to Spruill as the robber and challenge the police’s decision not to treat Spruill as a suspect is no more persuasive. At trial, Blount’s counsel highlighted that Thomas had also identified Spruill as the robber. And counsel repeatedly questioned the police regarding their decision not to treat Spruill as a suspect. Nonetheless, the jury found Blount guilty. Accordingly, the evidence is far from clear and convincing that had Blount made the same arguments based on the report, no reasonable juror would have convicted him.
Motion for authorization to file a successive habeas corpus petition denied.
In re Blount (Albert Diaz, J.) Case No. 18-400, Jan. 22, 2020. On motion for authorization to file successive application. Gabriel Kalman Gillett for Movant, Martine Elizabeth Cicconi for Respondent. 10 pp.