Petition for actual innocence writ denied

A petition for a writ of actual innocence, based on the “purported recantations” of one of petitioner’s accomplices and an informant, a “declaration” from another accomplice, and a proffer that another informant recanted his testimony, is dismissed.

Further, we reject petitioner Knight’s “bare allegation” that a police detective, who was convicted for extortion and other crimes in federal court, solicited him for $10,000 and manufactured a case against him when he refused to pay.

Overview

Jordan, the murder victim, was shot in the back of the head. Mark Hayes pleaded guilty to the murder, was sentenced to 45 years with 28 years suspended. He testified against petitioner Knight.

According to Hayes, on Aug. 16, 2002, he wanted to buy marijuana. Hayes picked up Knight and drove to a house. Knight had a discussion with a woman about a location where there was marijuana.

Knight told Hayes to drive to McAllister’s house. McAllister entered the car and the three of them discussed robbing the location, which turned out to be Jordan’s apartment. According to Hayes, McAllister directed him to park by some railroad tracks. Knight had two guns and gave one to Hayes. McAllister remained the car.

Knight and Hayes went to the apartment. Knight told Hayes to knock on the door. When Jordan opened it, Hayes asked for marijuana. Jordan closed the door. Hayes knocked again. When Jordan opened it, Knight rushed in and began beating him. Jordan indicated where the marijuana was. As Hayes retrieved it, Jordan broke free and jumped through a window. Knight shot at him through the window.

Hayes took the marijuana and ran for the car. He heard more gunshots. Knight appeared a few minutes later at the car with a shoebox full of marijuana. He told Hayes he had shot Jordan in the back of the head. McAllister drove them away from the scene.

In March 2003, Knight met Coles at a regional jail. Coles testified that Knight told him that he shot someone in the back of the head. Coles contacted the police.

Knight also made incriminating statements to Summerville, another inmate, indicating that he pulled a gun during a robbery and shot the victim when he attempted to run. Summerville testified at Knight’s trial.

Knight was convicted of first-degree murder, robbery and two counts of using a gun. He was sentenced to life plus 15 years. His petition for a writ of actual innocence is before the court.

Analysis

“Knight proffers an unsworn ‘Declaration’ from McAllister dated December 2, 2016[.]” According to McAllister’s declaration, Hayes came to his house to get a gun, accompanied by an unknown individual called “Ses.” McAllister asked for a ride to his girlfriend’s house.

Along the way, Hayes stopped near railroad tracks. Hayes and “Ses” left. McAllister later heard gunshots. Hayes and “Ses” ran back to the car and told him to drive. After a few blocks, Hayes took over driving. He dropped McAllister at his girlfriend’s house, gave him some marijuana and said “the guy tried to run and they started shooting.”

McAllister’s declaration stated that when he was arrested in November 2002, he indicated to an investigator that he had information about Jordan’s murder and eventually spoke with Ford, the detective convicted of extortion.

“McAllister later identified Knight as the ‘Ses’ who was with Hayes because Ford had a photograph of Knight and told McAllister, ‘this is Ses, this is who Mark [Hayes] says is Ses.’ According to McAllister’s declaration, Ford also told him what to write in his statement. He states that Ford told him they could charge him with all the offenses related to Jordan’s murder and that he would make sure McAllister ‘got the max’ on his other pending charges. …

“McAllister’s declaration is not evidence that was ‘previously unknown or unavailable’ to Knight[.] … The record establishes that McAllister was known to Knight and his counsel even before Knight’s trial. … We conclude that McAllister’s declaration is not newly discovered because Knight could have called McAllister as a witness at trial. …

“We reject Knight’s proffer that Summerville would testify under oath that he perjured himself at Knight’s trial. By Knight’s own account, Summerville declined to sign a statement because he was afraid that he could be charged with perjury. Under that circumstance, we cannot credit that Summerville would state under oath that he had perjured himself. …

“Knight proffers two affidavits from Hayes, both of which were executed in 2006. The proffered affidavits provide different versions of the crime and Hayes’s knowledge of it.”

In the first affidavit, Hayes denied knowing either Knight or McAllister. Hayes also averred that Detective Ford coerced him to testify and supplied all the information about the crime. He later withdrew the affidavit and supplied another one, in which he expressly recanted his statements to the police, claiming the police threaten him with violence. He also recanted his trial testimony. He stated “that the prosecutor and his trial counsel promised him leniency for his trial testimony; he testified to further his own penological interests and was not truthful.”

Knight claims a common point of both affidavits is that Ford threatened Hayes. But Hayes expressly disavowed in his plea agreement that there had been any coercion or threats. Knight also says both affidavits state he was not the shooter. But the first affidavit actually implicates Knight in Jordan’s murder. Further, the record does not support the claim in both affidavits that Hayes did not know Knight.

“Conspicuously absent from Knight’s submissions is any explanation for the circumstances under which Hayes’s affidavits were procured. The record before this Court, however, establishes that Knight threatened Hayes repeatedly. …

“Knight has submitted an unsworn ‘Declaration’ from Coles dated October 24, 2016[.] … Coles claims that he and Summerville made up their testimony against Knight and practiced it repeatedly while they were housed together at the Hampton Roads Regional Jail. …

“The proffered declaration is inconsistent with Summerville’s testimony at Knight’s trial that he and Coles were not housed in the same block at Hampton Roads Regional Jail, although he knew Coles. Summerville expressly stated that he had not discussed his testimony with Coles. As with Hayes, the record discloses that Knight had threatened Coles repeatedly about testifying. …

“Knight claims that [Detective] Ford is responsible for his wrongful conviction. Without any elaboration or explanation, he alleges that Ford requested $10,000 from him and when he refused, ‘Ford employed his oft-used tactics, lining up snitches and coercing witnesses’ to convict Knight. …  Knight must present this Court ‘clear and convincing evidence’ to sustain his claim. … Knight’s bare allegations concerning Ford are not evidence.”

Petition dismissed.

Knight v. Commonwealth, Record No. 1162-18-1, Jan. 7, 2020. CAV (Order) Upon a Petition for a Writ of Actual Innocence. Jennifer L. Givens for Petitioner, Mark R. Herring, Gregory D. Underwood for the Commonwealth. VLW 020-7-004, 20 pp. Unpublished.