Joel B. Dowdye v. Wynnie Testamark, Director of the U.S.V.I. Bureau of Corrections, Government of the Virgin Islands

• Court: Superior Court of The Virgin Islands
• Decided: February 8, 2021
• Docket: ST-2020-MC-23
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *************

JOEL B DOWDYE ) ) CASE NO ST 2020 MC 00023 Petitloner, ) ) PETITION FOR WRIT OF vs ) HABEAS CORPUS ) WYNNIE TESTAMARK DIRECTOR OF ) THE U S V I BUREAU OF CORRECTIONS ) GOVERNMENT OF THE VIRGIN ISLANDS ) ) Respondents )

Cite as 2021 VI Super 14U

MEMORANDUM OPINION AND ORDER

I INTRODUCTION

111 Pending before the Court is Joel B Dowdye s ( Dowdye ) pro se Petition for Writ of Habeas Corpus, filed on June 18, 2020 Having considered the Petition, the Court finds that it does not require an informal response from Respondents as provided by Rule 2(0) of the Virgin Islands Habeas Corpus Rules '

{[2 In his Petition, Dowdye asserts a myriad of claims, including some that overlap with his prior appeals Likewise, he raises secondary issues, all of which the Court concludes are without merit Dowdye asserts that the Court should grant him habeas relief for the following reasons 1) he was denied the right to a fair trial with an impartial jury because two jurors should have been removed for cause; 2) he had ineffective assistance of counsel; and 3) his 6‘h and 14‘h Amendment rights were violated due to prosecutorial misconduct

{(3 The Court determines that Dowdye s arguments fail to state a przma fame case that would entitle him to relief Accordingly, the Court will deny his Petition for the reasons set fonh below

II BACKGROUND AND PROCEDURAL HISTORY

114 The Court will only briefly recount the most salient facts for this matter given that extensive recitation of the factual background has been reported in prior opinions 2

1 Pursuant to Virgin Islands Habeas Corpus Rule 2(0) the Court may in the exercise of its discretion request an informal response from Respondents 2 See Dowafi e v People 55 V I 736 743 50 (V I 2011) See also Dowdye v People 60 V I 806 809 (2014) Dowdye v Testamark et a] 2021 VI Super 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 2 0f 9

115 On March 25, 2006, Joel Dowdye was arrested and charged in an eight count Information3 for the murder of Sherrette James, his former girlfriend, and wounding Daren Stevens at the Bunker Hill Guest House on St Thomas Dowdye's arrest report noted a tattoo on Dowdye's person that was known to be associated with Freemasonry or Mason organizations Mindful of Dowdye's alleged Mason association, the Superior Court conducted an extensive vozr dzre 0f the jury array regarding any membership or relationship with the Masons and other affiliated organizations that potential jurors may have 4

116 The jury found Dowdye guilty on all counts and as required by Title 14 V I C § 923 he was sentenced to life imprisonment without parole for the first degree murder conviction In 201 1, the V I Supreme Court reviewed Dowdye s appeal concerning the vozr dzre procedure employed by the trial court and the trial court 5 removal of a juror prior to jury deliberations 5 The Supreme Court remanded the matter for the Superior Court to conduct a Remmel hearing and make specific findings regarding the trial judge s removal of the juror for alleged misconduct After the Superior Court conducted the hearing and entered its findings of fact and conclusions of law concluding that the removal and replacement of the juror was appropriate, justified, and not an abuse of discretion, 6 Dowdye appealed again In 2014 the Supreme Court affirmed the Superior Court s ruling 7 117 Prior to the instant Petition, on July 15, 2016, Dowdye filed a Petition for Habeas Corpus Relief and later filed an Amended Petition on November 17, 20178 in which he largely challenged the legality of his sentence The Court granted the Petition and held an evidentiary hearing on June 19 2018 Dowdye appeared at that hearing pro 56, Via video teleconference from Citrus County Detention Facility At the conclusion of the hearing, the Court took the matter under advisement and granted relief by ordering the sentences on Counts VI, VII and VIII be stayed Dowdye s conviction for first degree murder and sentence remained undisturbed

3 Count I First Degree Murder in violation of Title 14 V I C §§ 921 and 922(a)(1) Count 11 Using a Dangeious Weapon Duiing the Commission of First Degree Murder in violation of Title 14 VI C § 2251(a)(2)(B) Count III Second Degxee Murder in violation of Title 14 VI C §§ 921 and 922(1)) Count IV Using a Dangerous Weapon During the Commission of Second Degiee Murder in violation ofTitle 14 VI C § 2251(a)(2)(B)‘ Count V Attempted First Degiee Murdei in violation of Title 14 VI C §§ 921 and 922(a)(1)' Count VI Using a Dangerous Weapon During the Commission of an Attempted First Degree Murder in violation of Title 14 VI C § 2251(a)(2)(B) Count VII FlISt Degree Assault in violation of Title 14 VIC § 295(1) and Count VIII Using a Dangerous Weapon During the Commission of First Degree Assault in violation of Title 14 V I C § 2251(a)(2)(B) 400mm People 60 v1 806 809 (2014) 5 Dowdye v People 55 V I 736 (2011) 6 Dowafve v People 60 V I at 806 810 7 Dowdye v People 60 VI 806 817 (2014) 8 Dowdyev GovtofVIrgm Islands N0 ST 15 MC 93 2018 WL 3996891 at *1 (VI Super Ct Aug 13 2018) Dowdye v Testamark er a! 2021 VI Super 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 3 of 9

III LEGAL STANDARD

{[8 The Superior Court has jurisdiction to issue writs of habeas corpus with respect to prisoners sentenced and confined by that court 9 Pursuant to Virgin Islands Habeas Corpus Rule 2(a), [a]ny person who believes he or she is unlawfully imprisoned or detained in custody, or confined under unlawful conditions, may file a petition for a writ of habeas corpus to seek review of the legality of that imprisonment or detention Rule 2(a)(4) further states that a petition for a writ of habeas corpus must set forth separately each ground on which the imprisonment or detention is alleged to be illegal and shall state the specific facts supporting each ground 10 Specifically, a petition must satisfy the requirements of 5 V I C § 1302, which provides

(1) It shall specify that the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty and the officer or person by whom and the place where he is so confined or restrained, naming all the parties, if they are known, or describing them, if they are not known

(2) If the imprisonment is alleged to be illegal, the petition shall state in what the alleged illegality consists

(3) The petition shall be verified by the oath of the party making the application ”

119 The Supreme Court of the Virgin Islands has determined that the requirements of Section 1302 are non jurisdictional and not fatal by themselves to an application for a writ of habeas corpus '2 Unlike an appeal the purpose of a writ of habeas corpus is not to determine guilt or innocence, or to weigh the evidence submitted at trial, or to determine the strength of the prosecutor's case but to prevent manifest injustice '3 Furthermore, in a habeas petition, the petitioner bears the burden of proving that his conviction is illegal ‘4 The rationale for this precept is that criminal proceedings usually may be presumed to have been proper and legal and, consequently, [Dowdye] must show that such a presumption is incorrect in his own case ‘5

1110 When presented with a habeas petition, this Court must first determine whether the petition states a puma fame case for relief that is, whether it states facts that, if true, entitle the petitioner to relief and also whether the stated claims are for any reason procedurally barred ‘6

9 Joseph v a'e Castlo 805 F Supp 1242 (D VI 1992) (117d 28 V I 546 see Parrot! v lngm Islands 56 F Supp 2d 593 (D V I 1999) '0 Virgin Islands Habeas Corpus Rule 2(a)(4) '1 5 v I C § 1302 '7 Riven: Malena v VIIgm Islands 61 VI 279 300 01 (V I 2014) (holding that the velification requirement of 5 V I C § 1302(3) is a claims processing rule) '3 Rodngue v aneau 0fCOH 58 V I 367 376 (VI 2013) HSee Dan v Bzufmd 339U S 200 218(1950) Walkel v Johnston 312 U S 275 286 87(1941) Johnsonv Zelbst 304 U S 458 468 69 (1938) ' See UnitedStates v Hollis 569 F 2d 199 205 206 (3d Cir 1977) 16Bzukev HQIbelt Super Ct Civ No SX 15 CV 518 2017 WL 5502954 at * 1 (VI Supel Ct Nov 14 2017) (unpublished) (quoting Rivera Morena v Gov [ofthe Virgin Islands 61 VI 279 311 (VI 2014) Dowdye v Testamark et a1 2021 VI Super 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 4 of 9

A petitioner makes a przmafacze case by stating specific factual allegations which require habeas relief rather than mere conclusions of speculations '7 If the court determines that the petition does not state a przmafacze case for relief or that the claims are all procedurally barred, the court will deny the petition outright 18 However, if it appears that the writ ought to issue, the Superior Court shall grant the petition for writ of habeas corpus without delay '9

IV ANALYSIS

:1 Dowdye’s claim that he was denied the right to a fair trial by an impartial jury is procedurally barred

1111 Under Virgin Islands law a petition for writ of habeas corpus should be granted and the matter set for an evidentiary hearing on the merits if the petitioner has set forth a primafacze case for relief, and the petition is not procedurally barred When a petition for such awritmerely repackages the same arguments that a court has already reviewed on direct appeal or in a previous writ it is procedurally barred 20 A petitioner may overcome an otherwise applicable procedural bar in seeking the writ if he can show that a fundamental miscarriage ofjustice would result from a failure to entertain the claim 2‘

{112 In this case, the Court finds that proffering logically opposite arguments in his Petition than those that were made on appeal is merely a ‘ repackaging of the same arguments that [the] Court has already reviewed and [therefore] is procedurally barred 22 Specifically Dowdye s appeal to the Supreme Court of the Virgin Islands concerned the vozr dire procedure employed by the trial court and the removal of a juror prior to jury deliberations On appeal the Court rejected his argument that his right to a fair trial was violated because of extensive vozr dzre questioning of prospective jurors about their relationships with the Freemason organization affiliated organizations, and members of both types of organizations

1113 The Supreme Court extensively addressed the candor of prospective jurors during vozr dire and explained that given the facts of this case, the determination of juror deception or disingenuousness during vozr dzre should be made by the trial court During the trial itself, Dowdye s attorney immediately objected to the striking of a juror based solely upon his membership in an organization 23 Yet, in his current Petition, Dowdye claims that two (2) jurors met the criteria of being removed for cause or peremptory challenged [sic], but became jurors on

'7 Wood; up v Gov tofthe Vugm Islands Super Ct Civ No ST 16 MC 47 2018 VI LEXIS 64 at * 4 (VI Supel Ct June 20 2018) (quoting VI H C R advisory committee 5 note) (unpublished) ‘8 Sm70nv Mullglav Super Ct Civ No SX 15 CV 278 2018 VI LEXIS 97 at *4(VI Super Ct Sept 19 2018) '9 Id (quoting from RIveIa Moreno v Gov tofthe V17 gm Islands 61 VI 279, 311 (V I 2014) (internal citations and quotations omitted) 20 Rodngue v Bureau 0fCOH 70 VI 924 925 (2019) 21 Id 22 Slmonv Mullglav Super Ct Civ N0 SX 15 CV 278 2018 VI LEXIS 97 at *4 (v1 Super Ct Sept 19 2018) 23 Dowdyev People 55 VI 736 746 (2011) Dowdye v Testamark et a] 2021 VI Super 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 5 of 9

the panel 24 First, Dowdye claims that Juror #11 had significant concerns and issues of the Freemasons and that Juror #9 withheld information that her daughter was a Victim of sexual assault Dowdye failed to raise objections to jurors #9 and #11 at trial and the instant Petition fails to set forth any evidence of bias in jurors responses to questions during vozr dzre It is the obligation of the trial court to evaluate dishonesty during vozr dire and the duty to pursue possible dishonesty is determined by whether the alleged dishonesty is readily apparent, as gauged from the nature of the alleged deception 25 So, even if this Court were to review Dowdye s claims on the merits, he has failed to establish a basis for relief

1114 The Supreme Court reviewed Dowdye s juror impartiality claims in two separate appeals Although the Petition at issue includes arguments that have not directly been addressed on appeal, the Court finds that the matter of enquiring into an impartial jury has been exhaustively addressed Dowdye first argued on appeal that his trial was unfair because a juror was removed before deliberations, yet now asserts that his trial was unfair because the Court did not remove a juror Under the same rationale of refusing to permit repetitive filings that would have the effect of overburdening the judicial system by re litigating the same issues in subsequent petitions, 26 the Court does not need to decide these issues again on the merits

b The Court finds that Dowdye did not state a puma fame case of ineffective assistance of counsel

1115 To prevail on an ineffective assistance of counsel claim Dowdye must demonstrate that his trial counsel s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced Dowdye resulting in an unreliable or fundamentally unfair outcome in the proceeding 27 In analyzing such a claim, the Court must indulge a strong presumption that counsel 5 conduct falls within a wide range of reasonable professional assistance 28 When counsel 5 conduct is determined to fall outside reasonable professional assistance, the defendant must also prove that counsel 3 unprofessional errors prejudiced him resulting in an outcome that would have been different 29 Typically such a claim can only be made out by specifying particular errors of trial counsel rather than vague assertions

1116 Dowdye claims the assistance of his trial counsel was ineffective for five main reasons 1) counsel failed to remove two jurors for cause during vozr dire; 2) counsel was deceptive as to his involvement to being investigat[ed] for several unethical issues filed against him during representation; 3) his counsel was dishonest to the Court when he requested an extension of time in order to obtain an expert witness but never produced one during trial' 4) none of the in chamber

24 Petitioner s Writ of Habeas at 4 25 Dowdye v Vugm Islands 55 V I 736 756 26 Ge0/ge v Wilson, 59 V I 984, 992 (V I 2013) (affirming the Superior Court 5 decision to not decide on the merits an issue that was previously litigated on a habeas petition filed in the Superior Court) 27 [blahzm v Gov tofthe V] S Ct Civ No 2007 76 2008 WL 901503 at *2 (VI 2008) (unpublished) (citing Stricklandv Washington 466 U S 688 687 88 (1984)) 28 Snare v Gov tofthe Vugm Islands 56 V I 754 760 (V I 2012) 23 Id Dowdye v Testamark er a! 2021 VI Super 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 6 of 9

hearings were discussed in depth' and 5) counsel failed to investigate (1) crime scene photos (2) evidence analysis of bed spread with appeared bullet holes in same (3) bullet holes in bed and address crucial evidence presented to the court and the jurors ’30

1117 Dowdye 3 claims, if true, fail to establish that his trial counsel 5 performance fell below an objective standard of reasonableness and failed to show that the alleged deficient performance prejudiced Dowdye, resulting in an unreliable or fundamentally unfair outcome in the proceeding

{[18 Appellate courts will find abuse of discretion only if the vozr dzre examination is so general that it does not adequatly probe the possibility of prejudice 3‘ Here, the Court has previously concluded that vozr dire was conducted appropriately the trial court lamented that it had done everything [it] could with respect to vozr dire to weed out anyone that may be a Mason and there were several disclosures 32 Dowdye did not meet the burden of placing sufficient evidence on the trial court record to show a reasonable likelihood that the jury could not be impartial 33 Therefore, Counsel 5 conduct of deciding not to strike two jurors for cause during vozr dzre does not deem his professional performance below a level of reasonableness

1119 In addition to claiming that his attorney was ineffective for failing to strike potential jurors during vozr dire, Dowdye argues that his counsel displayed deceptive and disingenuous behaviors before and during trial 34 An attorney violates his duty to communicate with his client when he fails to disclose crucial information about the status of his case 35 Model Rules of Prof‘1 Conduct R l 1 provides that a lawyer shall provide competent representation to a client, with competent representation requiring the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation However, isolated acts of mere negligence, without more, will ordinarily not constitute a violation of Model Rule 1 1, even though they may potentially Violate different ethical rules 36 The Court finds that Dowdye s arguments pertaining to his attorney s communications of in chamber proceedings and matters outside the scope of his case do not render his professional performance deficient Even if counsel did not fully disclose all the contents of in chamber conversations to Dowdye or failed to disclose outside matters unrelated to the status of the case to Dowdye the Court would conclude that counsel 5 actions were, at most, isolated acts of mere negligence that did not render his assistance ineffective Dowdye failed to show the Court how his counsel 3 behavior resulted in a fundamentally unfair outcome in the

30 Petitioner s Writ of Habeas at 14 3‘ Forte) v People 56VI 779 788 (2012)(citing Waldmfv Shuta 3 F3d 705 710(3dCi1 1993)) 32 (JA at 46 56)Dowdyev PeopleoftheVI 55 V1 736 747 (2011) 33 Forte) v People 56 V I 779 788 (2012) (quoting UmredStates v Momhead 18 V I 431 433 (D V I 1981)) (noting that a defendant who raises a Sixth Amendment challenge to the partiality of the jury bears the burden of placing on the record sufficient evidence to show a reasonable likelihood that the juiy cannot be fail) Consequently Potter gave the Court no reason to believe that the trial court abused its discretion when it decided not to stiike the entire panel 34 Petitioner s Writ of Habeas at 9 35 [n I e the Suspenston ofMaynaId 68 V I 632, 652 (2018) (citing Att’y Guevance Comm’n ofMa' v Hamilton, 444 Md 163 118 A 3d 958 970 (2015) (citing Atty Guevance Comm n ofMd v De La Pa 418 Md 534 16 A 3d 181 193 (2011)) 3‘? In re Dlsbarment 0f TayIOITéo v I 356 357 (2014) Dowdye v Testamark et a! 2021 VI Supe1 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 7 0f 9

proceeding

1120 Finally, an attorney's performance is only defective for failure to investigate or call a witness where the witness's testimony would have provided a viable defense 37 Indeed, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments 38 Where trial counsel may have had reason to believe that pursuing investigations would be fruitless or even harmful, the decision not to investigate cannot later be challenged as unreasonable 39 Therefore, Dowdye s counsel is not deemed ineffective for choosing not to introduce all of the crime scene photos, evidence of the bed spread with appeared bullet holes, or bullet holes in the bed It is not the role of this Court to review strategic case theories of counsel Here, the Court finds that the conduct of Dowdye 5 trial counsel was reasonable

$121 For the reasons stated above, Dowdye fails to satisfy the burden of proof for a primafacze case of ineffective assistance of counsel

c Dowdye failed to establish either of the two elements required to prove prosecutorial misconduct based on a state’s solicitation of, or failure to correct false evidence

1122 To establish a due process violation based on a state's solicitation of or failure to correct, false evidence, a defendant must show (1) the falsity and materiality of testimony, and (2) prosecutor's knowledge of such falsity 40 Before trial a prosecutor has a duty to disclose exculpatory information 4' A prosecutor s failure to do so, whether willful or inadvertent, violates the Due Process Clause if 1) the evidence is favorable to the defendant, and 2) prejudice as resulted meaning there is a reasonable probability that the result would have been different had the information been disclosed 42 1123 Here Dowdye argues that although the prosecutors at trial dramatically expressed how the Petitioner fired five (5) bullets from his weapon [they] never mentioned anything pertaining to two (2) bullet holes in the bed nor did they show that they existed 43 Dowdye claims that the failure to introduce evidence of the trajectory of the bullets is proof that the entire crime scene was compromised because the jury was deprived from being able to deliberate on the entire

37 Same 56 VI at 763 64 (citing to Callllo v UmledStates 995 F Supp 587 591 (D V I 1998)) 38 Id (quoting StIIck/andv Washington 466 U S 668 691 (1984)) 39 Id 40 Rodugue v Bureau ofCon 70 VI 924 925 (2019) 41 Williams v People 59 V I 1024 1039 (V I 2013) (referencing Brady v Maryland 373 U S 83 (1963) T0 prevail on a claim of a BI ady violation the defendant must show that the evidence was (1) suppressed [i e the people failed to disclose it] (2) favorable, and (3) material to the defense )) 42 Id 43 Petitioner s Wllt 0f Habeas at 1 1 12 Dowdye v Testamark e! (1’ 2021 VI Supei 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 8 0f 9

facts of the case and that he was unable to present a accurate Defense and cross examine mentioned expert witnesses about the inadequate theory of their investigations 44 {[24 The Court finds that the Dowdye failed to establish that a due process violation occurred by either of the elements required to prove prosecutorial misconduct Dowdye is nominally arguing that the prosecutors should have introduced more evidence against him during trial However, the introduction of such evidence neither would have been favorable to Dowdye, nor would it have likely produced a different result in the outcome of his case Dowdye failed to show the falsity and materiality of the evidence and failed to show that the prosecutors had knowledge of such falsity

1125 Additionally, Dowdye argues the prosecutors deceived the jury by the ways in which they presented evidence and questioned and impeached witnesses However, Dowdye s disagreement with the prosecution 5 choice of case theory does not rise to the level of prosecutorial misconduct Specifically Dowdye takes issue with the testimony of the Government s expert witness, Mr Micheal Neel However, as previously stated ‘[a] motion for writ of habeas corpus is not the proper forum for challenging the credibility of witnesses 45 Any final determination regarding the believability of witnesses at trial and the weight to be accorded such testimony, is within the sole province of the jury Therefore, Dowdye s challenge to the credibility of a trial witness does not state an adequate basis for habeas relief 46

V CONCLUSION

{[26 Dowdye has not demonstrated that his conviction was illegal Even in construing his argument liberally 47 Dowdye failed to assert a przma facze case that if true would entitle him to relief 48 His claim that he was denied the right to a fair trial by an impartial jury is procedurally barred because the Supreme Court has sufficiently addressed the issue on appeal Dowdye also failed to meet his burden of stating a prima facze case for ineffective assistance of counsel He neither sufficiently demonstrated that his trial counsel 3 performance fell below an objective standard of reasonableness, nor proved that a deficient performance prejudiced him to the extent of resulting in an unreliable or fundamentally unfair trial outcome Lastly, Dowdye failed to establish either of the two elements required to prove prosecutorial misconduct based on a state s solicitation of, or failure to correct false evidence

Accordingly it is hereby

ORDERED that Joel B Dowdye 5 Petition for Writ of Habeas Corpus is DENIED and it is further

44 Petitioner s Writ of Habeas at 13 4’ Sum e 56 V I at 763 64 (citing to Destm v Gov t 0ftl7e VI 2017 at *9) 4" Slime 56 V I at 763 64 47 Appleton 61 VI 267 48 Simon 2018 V I LEXIS 97 at ”'5 3 Dowdye v Testamark et al 2021 VI Super 14U Case No ST 2020 MC 00023 Memorandum Opinion & Order Page 9 0f 9

ORDERED that this matter is CLOSED and it is further

ORDERED that a copy of this Memorandum Opinion and Order shall be mailed to Petitioner Joel B Dowdye #14 3807 CC/Citrus County Detention Facility 2604 West Woodland Ridge Drive, Lecanto FL 34461, with the following notation on the envelope “LEGAL MAIL please open in presence of inmate only”, and copy thereof directed to the Wynnie Testamark, Director of the Virgin Islands Bureau of Corrections and Attorney General Denise N George

DATED fl/g/a'lOa’Ll ZfléLLL/j 7Y1 [ZEMW DENISE M FRAN DIS Judge of the Superior Com of the Virgin Islands

ATTEST

TAMARA CHARLES Cle e Cou

B : ' DON A D DON VAN Co Clerk Supervisor d: / g /&