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IN THE SUPREME COURT OF THE VIRGIN ISLANDS CABA ALPHONSO WOODRUP ) S Ct Civ No 2019 0006 Appellant/Pefifioner, ) Re Super Ct Civ N0 47/2016(STT) ) V ) ) GOVERNMENT OF THE VIRGIN ) ISLANDS ) Appellee/Respondent ) ) On Appeal from the Superior Court of the Virgin Islands Division of St Thomas & St John Superior Court Judge Hon Kathleen Mackay Considered October13 2020 Filed January 25 2022 Cite as 2022 VI 1 BEFORE RHYS S HODGE, Chief Justice, MARIA M CABRET, Associate Justice, and IVE ARLINGTON SWAN Associate Justice APPEARANCES Caba Alphonso Woodrup Big Stone Gap VA Pro Se, Ian S A Clement, Esq Assistant Attorney General St Thomas U S VI Attorneyfor Appellee OPINION OF THE COURT CABRET, Associate Justice 1| 1 Appellant Caba Alphonso Woodrup, pro se, appeals from a June 20, 2018, memorandum opinion and order denying his petition for writ of habeas corpus For the reasons that follow, we I FACTUAL AND PROCEDURAL BACKGROUND 1] 2 On the evening of April 25 2010 Leshelle Gumbs walked through the Paul M Pearson Gardens Housing Community on St Thomas and was accosted and grabbed by Woodrup Woodrup v People 63 VI 696 703 (VI 2015) ( Woodrup 1’ ) 1 An hour later Gumbs walked back through the same housing community with her boyfiiend, Patrick Smith Id Woodrup, who was still in the area, called out to Gumbs, and Gumbs and Smith responded Id A confrontation ensued, and Woodrup pulled out a gun and fired at least four shots, killing Smith Id Woodrup was later charged in the killing of Smith with first degree murder, among other offenses Id at 704 Gumbs and another eyewitness, Austin Callwood, gave statements regarding the events of the shooting, and identified Woodrup to police fiom photographs Id Before trial, Woodrup moved to suppress Callwood’s identification ofhim on the grounds that the procedures used to obtain the identification were unconstitutionally suggestive Id The Superior Court held a suppression hearing, found that the procedures were not suggestive, and denied the motion [d at 704 05 The court later held a three day jury trial, beginning on November 28, 2012 Id at 705 The jury convicted Woodrup on all counts Id at 706 The Superior Court sentenced Woodrup to life in prison without parole for first degree murder, a consecutive term of25 years’ imprisonment and a $25,000 fine for unauthorized possession of a firearm during a crime of violence, and five years imprisonment for first degree reckless endangerment Id at 706 07 We affirmed Woodrup’s convictions in Woodrup I 11 3 On July 22, 2016, Woodrup filed a petition for a writ of habeas corpus in the Superior Court, and the court dismissed his petition with prejudice However, the judge who dismissed the petition was also the trial judge in the case, and this Court vacated that dismissal order and remanded the petition for consideration before a different judge Woodrup v Gov t ofthe V I , S Ct Civ No 2016 0059 (V I 2017) (unpublished per curiam order)( Woodrup [I ) SeeAlexander v People 65 V I 385, 395 (V I 2016) ( Alexander 11’) (“[A] habeas petitioner is entitled to have his habeas corpus petition heard by ajudge who had not participated in his conviction ”) (internal quotation marks omitted) On remand, a difl‘erentjudge considered Woodrup’s petition and denied it without a hearing on June 20 2018 Woodrup v Gov t ofthe VI 2018 WL 3099143 (V 1 Super Ct 2018) (“Woodrup III ) The court found that Woodrup’s petition did not state a prima facie case for relief because his allegations were either conclusory, speculative, or were improper challenges to witness credibility Id at *3 *8 Woodrup filed his notice of appeal on January 18, 2019 2 II JURISDICTION AND STANDARD OF REVIEW ‘ 4 We have jurisdiction because “[a]n order denying a petition for a writ of habeas corpus is a final order from which an appeal may lie ” szera Moreno v Gov t ofthe VI , 61 V I 279, 292 (V I 2014) (quoting Suarez v Gov t 0fthe VI 56 V I 754 758 (V I 2012)) 4 V I C § 32(3) This Court exercises plenary review over the dismissal ofa habeas corpus petition Rivera Moreno, 61 V I at 292 (citing Mendez v Gov tofthe VI 56 V I 194 199 (V I 2012)) III DISCUSSION 1; 5 On appeal, Woodrup argues that the Superior Court erred in denying his habeas petition because (1) the prosecution knew or should have known that it was using perjured testimony from eyewitnesses Leshelle Gumbs and Austin Callwood to prove its case, and (2) Detective Jose Allen 2 Although Woodrup’s notice of appeal was untimely, the government did not file any response or answering brief in used unconstitutionally suggestive tactics in obtaining the identification of Woodrup by Gumbs and Callwood during police interviews We examine the legal standard governing Woodrup’s habeas petition and apply it to each of his arguments A Legal Standard 1! 6 “[U]nder Virgin Islands law a petition for writ ofhabeas corpus should be granted and the matter set for an evidential}! hearing on the merits if the petitioner has set forth a prima facie case for relief, and the petition is not procedurally barred Rodrzguez v Bureau ofCorrectlons, 70 V I 924 930 (V I 2019) (quoting Mosby v Mullgrav 65 V I 261 265 (V I 2016)) Rivera Moreno 61 V I at 311 To make out a prima facie case, a petitioner “must establish facts that if true— would entitle him to relief ’ Mullgrav 65 V I at 268 See also Island Tzle & Marble LLC v Bertrand, 57 V I 596, 625 (V I 2012) (“The term ‘prima facie evidence’ is a term of art, and means ‘evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced ) (quoting BLACK'S LAW DICTIONARY 638 39 (9th ed 2009) (emphasis omitted» “If the court determines that the petition does not state a prima facie case the court will deny the petition outright ” See szera Moreno, 61 VI at 311 A habeas petition filed pro se is to be liberally construed Hughley v Gov t ofthe VI 6] V I 323 330 (V I 2014) 1] 7 If the petition states facts that, if true, entitle the petitioner to relief, and if the petition is not procedurally barred the court shall grant the writ which then “requir[es] the Government to produce the petitioner in court for a hearing on the merits ofthe petition ” Alexander [1, 65 V I at 390 But a hearing is not always required ‘ [T]he right to an evidentiary hearing is not absolute” and is not necessary if the submissions before the Court reveal no factual disputes that are material to disposition of the issues raised in the petition, and the court makes a written finding to that effect Cascen v Govt ofthe VI 2021 V14 1| 10 3 1| 8 We note that Blyden v Gov tofthe VI 64 V I 367 (V I 2016) could be interpreted as requiring an evidentiary hearing once the petitioner makes an allegation in the petition, provided that the allegation, if later proven true, would entitle the petitioner to relief Blyden's allegation that the People knowingly introduced a firearm at trial that was not the firearm seized from Blyden during his arrest presents a prima facie case for reliefsince a government lawyer's fabricating evidence against a criminal defendant is a violation ofdue process This is all Blyden was required to do in order to obtain the writ under Virgin Islands law state facts in the petition that, if true, entitle the petitioner to relief [Ur 1s suffiaent that a petitioner Simply make allegations that Iflaterproven true would entitle him to habeas relief Id at 380 (internal quotations and citations omitted) (emphasis added) We clarify that merely making allegations, without more, does not state a prima facie case for habeas relief, and therefore does not entitle the petitioner to the issuance ofthe writ 1i 9 In Blyden, we recognized that a petitioner is “required to statefacts that, iftrue, would entitle him to relief” Id (emphasis added) Thus, a petitioner must support any allegations with the “required” facts to sufficiently state a prima facie case for habeas relief Id Indeed, throughout our habeas corpus jurisprudence we have consistently required a petitioner to support their allegations, as opposed to merely making them, by requiring they plead facts that, if proven true, would entitle them to relief See Rivera Moreno, 61 V I at 31 1, Roebuck v Gov? ofthe VI , 2021 VI 13 Tl 13 See also In re Gillette 64 V I 440 445 (V I 2016) Simon v Gov t ofthe VI 67 V I 702 707 (V I 2017)' V I H C R Rule 2(a)(4) So while we stated in Blyden that it is sufficient 3 See Simon v Gov I oflhe V1 929 F 3d 118 126 71 V I 1227 1239 (3d Cir 2019) ( In considering whether to hold a hearing, we have suggested that [trial] courts focus on whether a new evidentiary hearing would be meaningful in that a petitioner simply make allegations that, if later proven true, would entitle him to habeas relief,” ourjurisprudence mandates that these allegations be factually supported An allegation that the government has fabricated evidence is a matter of grave severity, going to the heart of a criminal defendant’s due process rights, and the fundamental fairness of our adversarial system But separate from the initial allegation itself, a petitioner must provide the court with a factual basis supporting the allegation, merely alleging impropriety by the government, or making any other allegation, without the proper factual predicate, cannot state a prima facie case for relief If it could, then a petitioner could make a multitude of “discreditable and “inaccurate” allegations which would then “impede the Superior Court’s ability to expeditiously resolve habeas corpus petitions” by requiring an evidentiary hearing even where the “Superior Court can easily examine the habeas petition, the People's return and accompanying exhibits, the petitioner's traverse (if any), and the record of the ease, and soundly discern whether the habeas claims lack merit ” Alexander II, 65 V I at 396 98 (Swan, J , concurring) Therefore, we clarify that a petitioner must make allegations that, if later proven true, would entitle him to habeas relief, and these allegations must also have specific factual support to sufficiently state a prima facie case wartanting granting of the writ of habeas corpus Consequently, a factually unsupported allegation is insufficient to state a prima facie case and entitle a petitioner to habeas relief See Umted States v FzsheI, 747 F 2d 271 273 (5th Cir 1984) ( Allegations must be supported by substantial factual assertions capable of resolution by an evidentiary hearing ”) 11 10 Additionally, any factual assertions made to support a petitioner’s allegations must be well founded Id In this case, for example, the Superior Court correctly found that Woodrup’s claims of perjured testimony and unconstitutional identification were founded on conclusory or petition and holding a hearing on the merits Woodrup III, 2018 WL 3099143, at *3 We note that other Superior Court decisions have also found that a petitioner may not rely on conclusory or speculative factual assertlons See Destm v Gov? ofthe V1 , 2017 WL 3475702, at *2 (V I Super Ct 2017) (unpublished) (“The petitioner must state specific factual allegations which requlre habeas relief rather than conclusory or speculative allegations ”), Donavan v Gov t ofthe V1 , 2013 WL 1961789 at *3 (V I Super Ct 2013) (unpublished) Ledesma v Gov tofthe VI 2016 WL 6078568 at *2 (V I Super Ct 2016) (unpublished) And the weight of authority supports the proposition that a petitioner may not rely on conclusory or speculative factual assertions to support his allegations See Blackledge v Allzson, 431 U S 63, 74 (1977) (“[P]resentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face ofthe record are wholly incredible ”), Dellenbach v Hanks, 76 F 3d 820, 822 (7th Cir 1996) (“A hearing is not necessary if the petitioner makes conclusory or speculative allegations rather than specific factual allegations ”) (quoting Damels v Untied States, 54 F 3d 290, 293 (7th Cir 1995)); Fzshel, 747 F 2d at 273 (Denying a petition without hearing based on “speculative” and “conclusory factual assertions” the Fifth Circuit found that “[a] hearing is not required on claims based on unsupported generalizations ”) (citing United States v Guerra, 588 F 2d 519, 521 (5th Cir 1979)) Koch v Puckett 907 F 2d 524 530 (5th Cir 1990) ( Although pro se habeas petitions must be construed liberally, mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue ”) (internal quotation marks omitted), In re Martmez, 209 P 3d 908, 915 (Cal 2009) (Because a petition for habeas corpus “seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief At the pleading stage, the petition must state a prima facie case for relief To that end, the People v Duvall 886 P 2d 1252 (Cal 1995) (en banc) (emphasis added) (internal quotation marks omitted», Duvall, 886 P 2d at 1258 (“Conclusory allegations made without any explanation ofthe basis for the allegations do not warrant relief let alone an evidentiary hearing ”) (quoting People v Karts 758 P 2d 1189 1216 (Cal 1988) (en bane» James v Borg 24 F 3d 20 26 (9th Cir 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief ’) Therefore we conclude that the Superior Court may correctly deny a habeas petition without a hearing when the facts supporting a petitioner’s allegations are conclusory or speculative B Allegation of Knowingly Perjured Testimony 1] 1 1 Turning to Woodrup’s first argument, he contends that the prosecutor knew that statements given by Gumbs and Callwood were “contrary,” “untrue,” and “inconsistent with the alleged facts” of the case, and nevertheless used their statements in violation of his due process rights We analyze this claim as a “ng110 violation ” See People v Ward, 55 V I 829, 842 (V I 2011) (A Gtglzo violation occurs when undisclosed evidence reveals that the prosecution knowingly made false statements or introduced or allowed trial testimony that it knew or should have known was false “To prevail on a nglzo claim, a defendant must establish that (1) the prosecutor knowingly used peijmed testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material”) (internal quotation marks omitted), see also nglto v United States , 405 U S 150 (1972) 1] 12 First Woodrup fails to point to any “undisclosed evidence” revealing false testimony that was introduced or allowed at trial Ward 55 V I at 842 He also fails to indicate what testimony was allegedly false Instead, Woodrup merely recites the trial testimony and statements of the to demonstrate any instances of perjury, instead relying on speculation and bald conclusions For instance, he states “It is Appellant’s position that Callwood most likely initially and impulsively ‘due[k]ed for cover’” out of fear from the loudness of the gunshots fired nearby, and therefore he could not have seen the shooting or the shooter Woodrup also rhetorically asks “How would Gumbs know where the shooter took his gun from when she already passed him?” He also notes that Callwood never mentioned Woodrup’s distinctive scar on the back of his head when identifying him These observations are not specific factual assertions that, iftrue, would make out a prima facie case for habeas relief, but rather, are arguments about witness credibility We do not review witness credibility determinations made by the jury during trial See Alexander v People, 60 V I 486 498 (V I 2014) ( Alexander 1’ ) (the jury determines the credibility of witnesses in a jury trial, not the court) Consequently, Woodrup failed to provide sufficient facts to make out a prima facie case that a witness perjured himself, let alone that there was a knowing use ofperjured testimony by the prosecution See Fishel, 747 F 2d at 273 (“Allegations ofpetjured testimony must be supported by substantial factual assertions capable of resolution by an evidentiary hearing ”) Therefore, the Superior Court did not err in denying Woodrup’s habeas petition without a hearing on this issue C Allegation of Unconstitutional Identification Procedure 1| l3 Woodrup also argues that Detective Allen used unconstitutionally suggestive tactics in obtaining Woodrup’s identification by both Gumbs and Callwood during several interviews after the shooting took place " Woodrup only devotes a half page of speculative, bald, and conclusory ‘ Woodrup already raised this issue previously in his direct appeal, where we found that he waived his argument by inadequately briefing it Woodrup I, 63 V I at 712 13 Woodrup was not procedurally barred from raising this issue again through his habeas petition, as a petitioner is procedurally barred when they properly raise an issue on direct sentences within his brief to this argument, thereby waiving the issue V I R APP P 22(m) (“Issues that are only adverted to in a perfunctory manner are deemed waived ”); Hodge v Bluebeards Castle Inc 62 V I 671 699 n 16 (V I 2015) 1] 14 Although we need not reach this argument, we nevertheless address it Within this short portion of his brief, Woodrup summarily states that Detective Allen used “improper suggestive techniques during the identification process” and that he “tampered with ev1dence by feeding Callwood and Gumbs details about the case ” These conclusory factual allegations fail to make out a prima facie case for habeas relief, as Woodrup offers no support from the record to sustain them Therefore, the Superior Court properly denied this allegation as insufficiently pled due to its conclusory nature D Ineffective Assistance of Counsel 1] 15 Woodrup also alleged ineffective assistance ofcounsel in his petition to the Superior Court, and the court ruled that his counsel's performance did not fall below an objective standard of reasonableness Woodrup III, 2018 WL 3099143, at *7 Woodrup does not complain that the Superior Court erred in this ruling, and he did not briefa claim of ineffective assistance of counsel on appeal Therefore, it is waived V I R APP P 22(m) (Issues that were raised before the Superior Court but not briefed are waived on appeal) 19 1H8 Rodnguezv Bureau ofCorr 70 VI 924 930 (VI 2019) Burkev Prosper 70 VI 866 873 (V l) cert denied, 140 S Ct 213 (2019) On direct appeal Woodrup did not properly raise nor did we decide on its merits the allegation that impennissibly suggestive identification procedures violated his constitutional rights due to his waiver of the allegation Therefore, although Woodrup “raised” the identification issue, he did not “properly raise” it due to the waiver of this issue on direct appeal See State v Johnson 416 P 3d 443 450 (Utah 2017) ( [Wle use [the term] ‘preservation’ to refer to a waiver of an issue in the trial court, and we use ‘waiver’ to refer to an issue that has not properly been raised and argued on appeal ”) (emphasis added) Further, because we concluded that Woodrup waived IV CONCLUSION ‘ 16 Woodrup did not present a prima facie case for habeas relief on his allegation of the knowing use of petjured testimony by the prosecution, because the factual assertions Woodrup made to support his claim of perjury were bald speculative, and conclusory Woodrup also insufficiently briefed, and therefore waived argument on the purported use of unconstitutionally suggestive tactics by Detective Allen in witness identification procedures Further, he did not brief a claim of ineffective assistance of counsel on appeal, and consequently waived argument on that claim Therefore, the petition was correctly denied without a hearing, and Woodrup is not entitled to a writ ofhabeas corpus Accordingly, we affirm the Superior Court’s order denymg Woodrup’s petition for habeas relief W Dated thixfiiay ofJanuary, 2022 BY THE COURT c. e , / IMMIzm; ”A CA”, Associate stice ATTEST VERONICA J HANDY ESQ Clerk of e Court By Deputy Clerk ' r DatedAM