IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
JAHZEEL FENTON
PETITIONER SX 19 MC 078/SX 10 CR 347
v PETITION FOR WRIT OF HA
BEAS CORPUS
GOVERNMENT OF THE VIRGIN ISLANDS
OFFICE OF THE V I ATTORNEY GENERAL WYNNIE
'I‘EsrAMARK DIRECTOR OF THE U S VIRGIN Is
LANDS BUREAU OF CORRECTIONS
RESPONDENI‘S
Cite as 2021 VI Superior 1011’
Mr Jahzeel Fenton, Pro Se
Inmate Number #101160
Golden Grove Adult Correctional Facility
Rural Route #1 Box 9955
Kingshill Virgin Islands 00850
Attorney Michael R Francisco, Esq .
Assistant Attorney General
V I Department of Justice
#34 38 Kronprindsens Gade
GERS Building 2"6 Floord
St Thomas Virgin Islands 00802
MEMORANDUM ORDER
J01:10 Meade. Judge
‘1 1 THIS MATTER is before the Court on the Petition of Jahzeel Fenian
(hereinafter Petitioner or Fenton ] seeking relief by Writ of Habeas Corpus In
his request for relief Petitioner has asked the Court to vacate his conviction and
release him from the custody of the Virgin Islands Bureau of Corrections Peti
tioner argues that during the underlying criminal proceedings, the People failed
Iahzee! Femon v 6V1 e: at 2021 VI Superior lOlP
Order Denying Habeas Relief
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to provide a bullet trajectory report that would show that he did not discharge
the bullet that injured the victim of the underlying criminal offenses For the
reasons stated below the Petitioner 8 request for relief is DENIED
FACTUAL and PROCEDURAL BACKGROUND
‘1 2 Fenton was arrested on March 19 2010 and subsequently charged
in an information with the criminal counts of (1) Attempted Murder in the First
Degree in violation of fitle 14 VI C § 922(a)(1) & 331 (2) Assault in the First
Degree with Domestic Violence in violatlon of Title 14 V I C § 295(1) and Title 16
V I C § 91(1)) (3) Unauthorized Possession of a Firearm During the Commission
of a Crime of Violence in violation of Title 14 VI C § 2253(a) (4) Mayhem
in
violation of Title 14 V I C § 1341(a)(2) (5) Discharging or Aiming a Firearm in
violation of Title 23 V 1 C § 479(a) and (6) Simple Assault and Battery with Do
mestic Violence in violation of Title 14 V I C § 299(1) and 16 V I C § 91(b)(1)
&
(2) in relation to the shooting and injury of Jo Ana Lang Subsequently the Peo
ple filed a superseding information adding four counts of Child Abuse in violation
of Title 14 V I C § 505 The counts of Child Abuse were based on allegations that
the minor children of Jo Ana Lang were present when the shooting occurred
‘11 3 As part of Petitioner s demand for discovery he made a request
for a bullet trajectory analysis or report which was referenced in the Crime Scene
Evidence Report dated March 19 2010 and drafted by forensic technician Linda
Pascal When the report was not produced Petitioner filed a motion to compel
discovery on February 19 2016 The court granted the motion and entered an
JahzeelFemon v 6V! at al 2021 VISuperior :01?
Order Denying Habeas Relief
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order on March 1 2016 giving the People fourteen days to provide the requested
discovery The trial was scheduled for August 15 2016 On June 27 2016 Pe
tittoner filed a motion to dismiss pursuant to Brady 1: Maryland 373 U S 83
(1963) contending that the People 8 failure to provide the bullet trajectory anal
ysis or report amounted to withholding exculpatory evidence The court con
ducted a hearing on the motion to dismiss at the Final Pretrial Conference on
August 8 2016 After presentation by counsels the court denied the motion to
dismiss but restricted the People from using at trial any evidence of bullet tra
jectory that required expert evaluation and reserved the evidentlary findings of
the forensic investigative officers for discussion at trial
‘1l 4 Following the court s ruling on the motion to dismiss Petitioner
through counsel informed the court that the Parties had reached a plea agree
ment The Petitioner entered a plea of No Contest to count 2 of the superseding
information Assault First Degree with Domestic Violence Pursuant to the plea
agreement all other counts in the superseding information were dismissed The
court after examination of the Petitioner accepted the Plea
(I 5 Petitioner was sentenced on July 26 2017 The court sentenced the
Petitioner to a term of incarceration of twenty [20) years The court 8 sentence is
memorialized in its Order of Judgment and Commitment entered on July 28,
2017 Petitioner appealed his sentence to the Virgin Islands Supreme Court con
tending that his sentence was unlawful because the Superior Court Imposed a
sentence that was greater than the ten years recommended in his plea agreement
Jahzeel Fenian! GVI e! a! 2021 VI Superior 101?
Order Denying Habeas Relief
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and that Superior Court Rule 126 permitted him to withdraw his plea if the Court
departed from the sentence recommended in the plea agreement The Virgin Is
lands Supreme Court rejected these arguments and affirmed the conviction See
Fenton 0 People 69 VI 889 (VI 2018)
‘I 6 The Petitioner is presently in the custody of the Virgin Islands
Bureau of Corrections serving a 20 year term of incarceration having been adju
dicated guilty after entering a plea of No Contest to First Degree Assault/ Do
mastic Violence in the underlying criminal proceedings
91 7 Petitioner filed an action for a writ of habeas corpus on September
18 2019 following which the matter was referred to a Magistrate to make fac
tual findings conclusions of law and recommendations regarding the validity of
the Petitioners claim The Magistrate conducted a hearing on August 7 2020
but did not reduce the findings to writing The Court granted the petition and
issued the writ on April 30 2021 The People filed their return on May 19 2021
and the Petitioner filed his traverse on June 1 2021 On June 29 2021 the
Court conducted an evidentiary hearing in which the parties offered witness tes
timony and other evidence
The legal Standard
‘fi 8 Under Virgin Islands law any person who believes that he/she is
unlawfully restrained of his/her liberty may seek redress from the Superior
Court by filing a petition for a writ of habeas corpus Title 5 VI C § 1301 Hub
Corp Rule 2 (a)(1] The Court must issue the writ if the petition states a prima
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facie case for relief and the claims are not legally barred Hub Corp Rule 2(d)(1)
In determining whether the petitioner has stated a prima facie case the Court
must consider whether the factual allegations if true would entitle the petitioner
to relief Hab Corp Rule 2(b)(1) When a court grants habeas corpus relief it may
order a remedy other than discharge from incarceration Rivera Moreno v Gov’t
of the Virgin Islands 61 VI 279 298 (V I 2014) and may award a different
form of relief or remedy as justice may require V I Hub Corp R 2th)
‘1 9 Petitioner 3 claim for habeas corpus relief argues that his incarcer
ation is in violation of the right to due process caused by the People 5 failure to
provide exculpatory evidence resulting in a Brady violation If the Petitioner can
prove a Brady violation he is entitled to relief Kyles v Whitley 514 U S 419
435 (1995]
Discussion
A. Petitioner Failed to Establish the Existence of Undisclosed Evidence
‘1 10 The substance of Petitioners claim is that after a discovery request
from the Petitioner in the underlying criminal proceedings the People failed to
provide evidence that was favorable to him and thereby violated his right to due
process Brady at 87 Specifically Petitioner alleges that the People failed to dis
close a bullet trajectory analysis or report that would have exonerated him ‘To
prove a Brady violation the Petitioner must show that (1] the government with
held evidence either willfully or inadvertently (2} the evidence was favorable
either because it was exculpatory or of impeachment value and (3) the withheld
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evidence was material Lambert v Blackwell 387 F 3d 210 252 (3“ Cir 2004]
[citmg Banks v Dretke 540 U S 668 691 (2004)] The trial court entertained
Defendant 5 Motion to Dismiss for Brady violations at the Final Pretrial Confer
ence on August 8 2016 In his argument to support the motion to dismiss Fe
titioner s counsel described the requested evidence as follows
A trajectory analysis involves measurements and other
trigonometry and other analysis calculations to determine
the path of the bullet projectile where it would land And
they would then estimate the position of the shooter the
position of the shot the person who was shot and the
sort (Transcript of August 8 2016 p 4)
‘ll 11 Petitioner based his claim of the existence of this analysis or
report on the statement a trajectory was then completed referenced in the
Crime Scene Evidence Report authored by forensic technician Linda Pas
cal The Crime Scene Evidence Report makes no reference to measurements
or mathematical formulas to determine the position of the shooter the rel
ative position of the person being shot the point of origin of the projectile
or where it would land It appears that the statement was part of a cursory
observation that investigating officers made in relation to what they thought
was a bullet hole The full text of the officers observation as outlined in the
Crime Scene Evidence Report is as follows
Sgt Hitesman then observed what to be a bullet hole
in the Northeast bedroom northwest screen Based on
further inspection it appeared that the bullet passed
through the northwest screen and dented the 3m louver
and landed to the Northeast of the windowpane a
trajectory was then completed
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‘E 12 The People argued at the hearing on the motion to dismiss as the
Respondents do now that the only information available in relation to a bullet
trajectory is that which is referenced in the Crime Scene Evidence Report Fur
ther counsel for the People informed the Court that the People disclosed all of
the information relative to the crime scene investigation Petitioner has provided
no other evidence that the bullet trajectory analysis or report as envisioned or
described by the Petitioner actually exists or has ever existed Instead Petitioner
insists that the Crime Scene Evidence Report is sufficient to prove that a bullet
trajectory analysis or report was completed beyond the reference in the Report
Since Petitioner has not established that the trajectory analysis or report existed
or if it existed was ever in actual or constructive possession of the People and
was suppressed the Court cannot do an analysis of the additional Brady factors
That is a detennination of the exculpatory or impeachment nature of the evi
dence or whether it was material
B Petitioner s No Contest Plea Negates His Claim of 9. Due Process
Violation
‘3! 13 The Brady Rule which requires prosecutors to disclose evidence
favorable to a defendant is designed to protect the defendants constitutional
safeguards with particular emphasis on the right to a fair trial secure a fair and
trustworthy outcome and preserve the integrity of the judicial process There
can be no Brady violation unless the governments nondisclosure infringes on
the defendants fair trial right Umted States v Stuntsko 729 F 2d 256 262
JahzeelFemon v GVI at a! 2021 VI Supetior 101?
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(3rd Cir 1984) (citing United States v Riggs
713 F 2d 39 43 (3“1 Cir 1983)
The prosecution s suppression of evidence favorable to the accused violates due
process where the evidence is material to guilt or punishment Brady at 87 As
the United States Court ofAppeals for the Third Circuit has noted The Supreme
Court has cautioned that in making 3 Brady materiality determination the focus
should be upon an evaluation of whether the suppression of the evidence re
sulted in a verdict unworthy of confidence United States v Pellulo 105 F 3d
117 123(3rd Cir 1997) Evidence is material where there is a reasonable prob
ability that had the evidence been disclosed to the defense the result of the pro
ceeding would have been different A reasonable probability is a probability suf
fluent to undermine confidence in the outcome Simmonds v Beard 590 F 3d
223 234 (3ml Cir 2009) (quoting United States v Bagley 473 U S 667 682
(1985)
‘11 14 The trial court convicted the Petitioner based on his plea of No
Contest to count 2 of the superseding information to wit Assault in the First
Degree with Domestic Violence in violation of’I‘itle 14 V I 0 § 295(1) and Title 16
V I C § 91(b) Petitioner does not contend that there was some unlawful occur
rence in the criminal proceedings that interfered with his ability to make a know
mg and voluntary plea Petitioner contends that the unavailability of the bullet
trajectory analysis or report dictated his decision in entering the plea This con
tention cannot sustain a claim for 3. Brady violation To constitute 3 Brady
violation the non disclosure must do more than impede the defendants ability
Jahzeel Fenian v GVI e! a! 2021 VI Superior lOlP
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to prepare for trial it must adversely affect the courts ability to reach a just
conclusion to the prejudice of the defendant
Stuntsko at 262 (citing United
States v Campagnuolo
592 F 2d 852 861 62 (51h Cir 1979)
‘1 15 During the evidentiary hearing on his habeas corpus petition
Petitioner attempted to impress upon the Court that the bullet trajectory analysis
or report would show that he could not have discharged the bullet that injured
the victim but that the victim injured herself Additionally Petitioner introduced
into evidence a DNA swab analysis and Virgin Islands Police record of property
receipt to boost his claim that he did not discharge the weapon Petitioner sug
gested to the Court that the property that was taken from him was examined for
evidence that he discharged a weapon and was returned because no evidence
was found to show that he discharged the weapon In addition Petitioner argued
that the DNA swab analysis indicated that a female handled the weapon finally
Petitioner insinuated that the bullet trajectory analysis or report was suppressed
because it was favorable to him
‘K 16 In effect the Petitioner is asking this Court to decide in a habeas
corpus proceeding what the evidence would have shown in a criminal trial Not
only is the Petitioner asking the Court to act in the capacity of a jury to judge
the weight and credibility of evidence that determines conviction or acquittal
but Petitioner is also asking the Court to speculate on the materiality effect and
relevance of a bullet trajectory analysis or report that he has not shown or proven
to erast Petitioner 5 understanding of the purpose of the habeas corpus
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proceeding and the role of the Court is misguided “The purpose of the 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 prosecutors case but to
prevent manifest injustice Rodriguez v Bureau of Corrections 58 V I 367
376 {V I 2013) A habeas corpus proceeding is not a vehicle to litigate credibility
concerns that were not presented to a jury Ventura 0 People of the Virgin
Islands 64 V I 589 590 (V I 2016) See also Fontaine 1: People 56 V I 571
586 (V I 2012) (finding that all issues of weight and credibility of evidence in a
criminal proceeding are within the province of the jury) and Smith v Peeple 51
V I 396 401 (V I 2009} (finding that a court considering evidentiary challenges
subsequent to a criminal conviction is prohibited from weighing evidence and
determining the credibility of witnesses) Petitioner ignores the fact that a crimi
nal trial is the most appropriate proceeding in which to make a full examination
of the evidence Petitioner waived his right to a full examination of the evidence
when he decided to enter a plea of “No Contest Petitioner cannot now launch a
collateral attack on his conviction by intimating that the evidence would not have
secured his conviction A court in a habeas corpus proceeding cannot grant relief
by releasing a petitioner from custody based on what the petitioner claims that
the evidence would likely show at trial A court in a habeas corpus proceeding
could only grant relief if the admission of evidence at trial prejudiced the peti
tioner and undermined the fairness of the criminal proceeding
‘H 17 Similarly Petitioner can only succeed on his claim of a Brady
JahzeeIFenton v 0V] 2: a! 202l VI Superior now
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violation if he can show that the People 3 failure to disclose was prejudicial to
him and unfairly influenced his conviction Petitioner s conviction was obtained
through his plea The unavailability of a bullet trajectory analysis or report is not
material to Petitioners conviction therefore Petitioner can show no prejudice
from it s unavailability Where a defendant suffers no prejudice from the govern
ment s failure to disclose a report there is no Brady violation Starusko at 262
Unless the omission deprived the defendant of a fair trial there was no consti
tutional violation requiring that the verdict be set aside and absent a constitu
tlonal violation there was no breach of the prosecutors constitutional duty
to disclose United States v Agurs 427 U S 97 108 (1976) A reasonable
probability that had the evidence been disclosed to the defense the outcome of
the proceedings would have been different necessarily entails the conclusion
that the suppression must have had substantial injurious effect or influence in
determining the jury s verdict Brecht v Abrahamson 507 U S 619 623
(1993) Kyles v Whitley at 435 Petitioner s free knowing and voluntary choice
to enter a plea negates any claim of prejudice or unfairness to his conviction on
the basis that the alleged bullet trajectory analysis or report was not provided to
him
Conclusion
‘1 18 Fenton challenged his conviction based on allegations that the
People 5 failure to provide him with a bullet trajectory report or analysis denied
him the right to due process In sum Fenton seeks habeas corpus relief
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contending that the People violated the Brady rule To prove a Brady violation
a habeas corpus petitioner must show that the failure to disclose evidence prej
udiced the petitioner and led to an unfair and unjust outcome in the underlying
criminal proceedings Fentons conviction is based on his plea of no contest as
he chose not to challenge the charges against him Not only did Fenton fail to
show that the claimed evidence exists his plea of no contest negates his claim
that the unavailability of the evidence unfairly or unjustly influenced his convic
tlon Fenton 3 request for habeas relief is DENIED
DONE AND SO ORDERED this l5"I day of October 2021
IE:%ORABLE J0M0 MEADE
JUDGE OF THE SUPERIOR COURT
ATT E ST
TAMARA CHARLE§
Clerk 0? e Court
X! f , e ’
45%;! ’1 :2
curt Clerk. 31pm