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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN CABA ALPHONSO WOODRUP, ) Plaintiff, ) CASE NO. ST-16-MC-47 VS. ) ) GOVERNMENT OF THE ) VIRGIN ISLANDS, ) Petition For ) Habeas Corpus Defendant. ) ) MEMORANDUM OPINION Before the Court is Petitioner Caba Woodrup’s petition for Writ of Habeas Corpus. For the reasons below, Woodrup’s petition will be denied. BACKGROUND On August 6, 2012, the People of the Virgin Islands charged Woodrup with the shooting death of Patrick Smith in a nine count Information. The Information charged Woodrup with: Count I, First Degree Murder; Count II, Unauthorized Use of an Unlicensed Firearm During the Commission of a First Degree Murder; Count III, Second Degree Murder; Count IV, Unlicensed Firearm During the Commission of a Second Degree Murder; Count V, First Degree Assault; Count VI, Unauthorized Use of an Unlicensed Firearm During the Commission of a First Degree Assault; Count VII, Third Degree Assault; Count VIII, Unauthorized Use of an Unlicensed Firearm During the Commission of a Third Degree Assault; Count IX, Reckless Endangerment in the First Degree. Woodrup v. Gov’t of the V_I. Case No. ST-16-MC-47 Memorandum Opinion After a trial, ajury found Woodrup guilty on all counts. On January 29, 2013, Woodrup was sentenced to a term of life imprisonment on Count I; 25 years’ imprisonment on Count II, to run consecutive to the Count I sentence; and 5 years’ imprisonment on Count IX, to run concurrent with the Count II sentence. Counts III, V, and VII were deemed merged with the offense charged in Count I, and Counts IV, VI, and VIII were deemed merged with the offense charged in Count II. Woodrup filed an appeal with the Supreme Court of the Virgin Islands, and the Supreme Court affirmed Woodrup’s conviction on October 20, 2015. In responding to Woodrup’s arguments, the court found that the People had introduced sufficient evidence in the underlying trial for a jury to conclude beyond a reasonable doubt that Woodrup had committed the crimes for which he was convicted. The court found that, while the trial court had erred in relying on 14 V.I.C. § 19 (prior inconsistent statements) in admitting out-of-court statements of People’s witness Leshelle Gumbs as substantive evidence, the error was harmless since the statements would have been admissible as a prior identification nonetheless. The court also found that the trial court had given sufficient caution-and-care jury instructions regarding the jury’s use and interpretation of eyewitness testimony, as mandated by the Supreme Court in Ostalaza v. People of the V.I., 58 V.I. 531 (2013). Lastly, the court held that its own precedent foreclosed Woodrup’s challenges to being sentenced separately for Counts I, II, and IX, and that the trial court’s sentencing Woodrup on each of those separate counts did not violate double jeopardy. Woodrup v. Gov't of the V.I. Case No. ST-16-MC-47 Memorandum Opinion Woodrup filed a petition for writ of habeas corpus on July 22, 2016, which was dismissed with prejudice by the Superior Court on August 26, 2016. However, the judge who had presided over Woodrup’s underlying criminal trial also adjudicated that habeas petition; accordingly, on May 17, 2017, the Supreme Court vacated that order and remanded the matter to the Superior Court for consideration before a different judge. The petition was then assigned to this judicial officer. Woodrup has submitted two documents in support of his petition, a Memorandum of Law in Support of a Writ of Habeas Corpus (“Memorandum”), filed May 29, 2018, and a Motion to Amend Habeas Corpus (“Motion”), filed May 21, 2018, which includes its own separate argument section. After reviewing Woodrup’s petition, this Court will deny his petition. DISCUSSION The writ of habeas corpus is available to a prisoner who is “unlawfully imprisoned or restrained of his liberty.” 5 V.I.C. § 1301. When presented with a habeas petition, a court, “must first determine whether the petition states a prima facie case for relief,” and, “whether the stated claims are for any reason procedurally or substantively barred as a matter of law.” V.I. H.C.R. 2(b)(1). A petition states a prima facie case when it, “states facts that, if true, would entitle the petitioner to relief.” V.J. H.C.R. advisory committee’s note. A petitioner is procedurally barred from re-litigating through a habeas petition an issue that was raised on direct appeal to the Virgin Islands Supreme Court and rejected on the merits. Blyden v. Gov't of Woodrup v. Gov’t of the V_I. Case No. ST-16-MC-47 Memorandum Opinion the V.I., 64 V.1. 367, 377-78 (V.I. 2016). In other words, an issue that was raised and rejected on direct appeal to the V.I. Supreme Court cannot be renewed in a habeas petition. Id. (citing In re Harris, 5 Cal. 4th 813 (Cal. 1993)). While a court should liberally construe pro se pleadings, a pro se petitioner still must plead specific factual allegations, “rather than conclusory or speculative allegations, which would entitle the petitioner to relief. ...” Donovan v. Gov’t of the V.[, 2013 V.I. LEXIS 21, *7 (V.I. Super. Ct.); Ledesma v. Gov't of the V.[., 2016 V.I. LEXIS 167, *5-6 (V.I. Super. Ct.) (“The petitioner must state specific factual allegations . .. rather than conclusory or speculative allegations.”).! Bald assertions, or unsupported accusations, do not provide sufficient ground for a court to grant a habeas petition and order an evidentiary hearing.? 1 See also United States v. Roane, 378 F.3d 382, 401 (4th Cir. 2004) (no post-conviction relief or evidentiary hearing warranted when petitioner offered only “conclusory accusations”); Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (‘“Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing.”), overruled on other grounds by Gray v. Netherland, 518 U.S. 152 (1996); Lewis v. Hand, 362 P.2d 639, 641 (Kan. 1961) (‘unsupported or uncorroborated statements in a subsequent habeas corpus proceeding will not justify the issuance of a writ”). 2 See Palmer v. Hendricks, 592 F.3d 386, 395 (8rd Cir. 2010); Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (“Nor did the district court abuse its discretion in concluding that [petitioner]'s bald assertions of ineffective assistance did not entitle him to an evidentiary hearing.”); Katz v. King, 627 F.2d 568, 573 (1st Cir. 1980) (In a habeas petition, “{b]ald assertions of law or fact, absent prior explication to the state court of how federal rights were violated, will not suffice.”); Gibbs v. New York, 2002 U.S. Dist. LEXIS 25102 (S.D.N.Y.) (‘Where . . . a habeas petitioner offers only bald assertions that counsel should have conducted a more thorough pretrial investigation, he fails to overcome the presumption that counsel acted reasonably.”); Louvar v. Board of Pardons and Parole, 2010 Mont. LEXIS 270, *2 (Mont.) (‘[BJald assertions do not constitute a threshold showing that a writ of habeas corpus should be granted.”); Ex parte Lavine, 2016 Tex. App. LEXIS 6419, *8 ("Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition . . . to be of probative evidentiary value.) (citing Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)); In re Pers. Restraint of Caldellis, 2016 Wash. LEXIS 1369, *20 (Wash.) (“A petitioner must state with particularity facts that, if proved, would entitle the petitioner to relief. Bald assertions and conclusory allegations are not sufficient.”) (citation and internal quotations omitted); Chambers v. Ballard, 2014 W, Va. LEXIS 502, *5 (W. Va.) (“Bald assertions without detailed factual support do not justify the issuance of a writ, the appointment of counsel, and the holding of a hearing.”) (citation and internal quotations omitted). Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion Woodrup’s Petition Woodrup’s Memorandum, running 30 pages, alleges everything from ineffective assistance of counsel, to failure to state a claim (which is a challenge to a pleading in a civil case, not a challenge in a criminal proceeding). While the Memorandum and Motion together run some 50 pages and include exhibits, most of the legal argument is incoherent and gives the impression that Woodrup threw everything at the wall to see what might stick. The Court need not respond to every allegation that Woodrup packed into his filings, as many of those allegations are unsupported and conclusory at best, and thus insufficient to support the granting of a habeas petition. Additionally, a number of Woodrup’s allegations raise issues that were decided by the Supreme Court in Woodrup’s direct appeal, and this precludes those issues from being raised in a habeas petition. Finally, Woodrup raised in his petition a smail number of allegations that warrant a more detailed response, and the Court will address those separately. I. Many of Woodrup’s Allegations are Conclusory or Speculative and Not Sufficient to Support His Habeas Petition Woodrup alleges that the Government relied on perjured testimony, in that it, “should have known that the testimonies’ [sic] of witnesses ‘Leshelle Gumbs’ as well as ‘Austin Callwood’ [sic] was in fact; [sic] perjured testimony.” However, Woodrup has not alleged facts showing that the Government had knowledge or should have Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion known that any testimony was perjured. Woodrup’s belief that these witnesses’ testimony was perjured does not mean the testimony was in fact perjured, or that the Government knew or should have known it was. For example, Woodrup alleges that witness Gumbs stated in a May 2013 interview with a Detective Jose Allen that, “[Woodrup] had left the island.”3 From this Woodrup concludes, “which [would] highly suggest the source of this information was Detective Jose Allen.” That is highly speculative, as there are multiple ways that Gumbs could have obtained that information, and Woodrup offers no facts tending to show Detective Allen was the source. Later Woodrup alleges that it was, “only after Gumbs was contacted by Det. Allen on May 13, 2010 that she started accusing appellant as the shooter and he [sic] left the island.” Woodrup goes on, “But she was not ‘interviewed’ or ‘asked’ where she got this information. The source was Det. Allen[.]” Again, this is highly speculative; the fact that Gumbs didn’t “start accusing” Woodrup until when she spoke with Detective Allen, even if true, does not support a finding that Detective Allen fed her information. There is simply no concrete factual basis in Woodrup’s petition showing that Gumbs received any information about Woodrup’s whereabouts from Detective Allen. Similarly, Woodrup’s theory that witnesses’ testimony was “tainted by the suggestiveness of Detective Jose Allen...during the pretrial identification process[,]” is mere speculation and is unsupported by facts in the petition. 3 Mot. to Amend Habeas Corpus (“Mot.”) at 17. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion Woodrup suggests also that Detective Allen and other police officers unlawfully disclosed confidential details of the investigation, “hoping the witnesses’ [sic] Leshelle Gumbs and Austin Callwood, [sic] would retain that information... regarding the suggestive identity of Woodrup ....” Yet he offers no facts to support this allegation— not that officers disclosed confidential information, and not that witnesses used any information inappropriately given to them by police—and the allegation seems to be nothing more than Woodrup’s speculation. Woodrup alleges that Detective Allen “coerced statements” from witnesses Gumbs and Callwood, but offers no facts supporting this allegation either. Indeed, Woodrup describes at scattered parts in his own filings the circumstances around those witnesses’ identifications of the shooter, and those facts, even if taken as true, do not suggest coerced statements.4 Also, in its decision the Supreme Court wrote that Gumbs provided two statements, one to Officer Corine Daniel the same night of the shooting and one to Corporal Mario Stout the day after, before even offering a statement to Detective Allen. Woodrup, 63 V.I. at 703-04. In her statement to Officer Daniel, Gumbs described the shooter’s physical characteristics. The fact that she did not describe the shooter’s nickname until meeting with Detective Allen does not show that the statement was coerced—there are many ways she could have obtained the nickname. 4 See, e.g., Mem. of Law in Supp. of a Writ of Habeas Corpus (‘Mem.”) at 27-28. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion Woodrup also alleges that, “the People . .. has withheld the suppression of evidence [sic] favorable to an accused upon request [sic], that was never produced at trial violates due process [sic] . . ..”. Yet Woodrup does not even allege what evidence the Government withheld or suppressed that might have been favorable to him, or that he or his attorney requested any such evidence. In each of these instances, the allegations are speculative or conclusory or both, and are insufficient to support Woodrup’s petition. Il. A Number of Woodrup’s Allegations Are Procedurally Barred Because the Issues Were Decided by the Supreme Court Woodrup argues that his Fifth, Sixth, and Fourteenth Amendment rights were violated, “by the Territorial Court of Virgin Islands [sic], when it allowed Woodrup to be subjected to Multiple Prosecution and Penalties for the same Unlawful Act or Offense in Violation of Virgin Islands Law and the Constitutional Double Jeopardy provisions of the Fifth Amendment.”> In essence, Woodrup seems to be arguing that his sentences are duplicative and violative of the Double Jeopardy Clause of the Fifth Amendment. However, the Supreme Court considered this issue on appeal, and found that Woodrup’s sentence complied with Virgin Islands law and did not violate double jeopardy. Woodrup, 63 V.I. at 721-23. That issue has been decided by the Supreme Court on appeal and Woodrup cannot renew it in his habeas petition. 5 Mem. at 11. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion Woodrup also makes passing reference to the trial court’s “refusal to properly instruct the jury.” While the Court finds this mere reference alone to be insufficient to support the granting of Woodrup’ s habeas petition—since Woodrup does not say in his petition how the court failed to properly instruct the jury—the issue is already barred procedurally in any event. On appeal, the Supreme Court reviewed the trial court’s jury instructions. It found that, even though the trial court did not use the exact language used in Ostalaza, the trial court’s, “instruction in this case was extensive and detailed, and tracked the instruction [the Supreme Court] mandated in Ostalaza.” Woodrup v. People of the V.I., 63 V.1. 696, 721 (V.I. 2015). The Supreme Court found that the trial court did not commit error in instructing the jury. Because Woodrup alleges no specific failure in the trial court’s jury instructions, the Supreme Court’s decision on that issue bars Woodrup from raising it in his habeas petition. Finally, Woodrup makes one reference to a challenge of, “the sufficiency of the ”» evidence to support a verdict of the Trial Court [sic]. . ..”. Here too, however, the Supreme Court has already decided against Woodrup. The court reviewed and discussed at length Woodrup’s challenge to the sufficiency of evidence to support his convictions. See Woodrup, 63 V.I. at 707-11. The court found there was enough evidence to convict, and rejected Woodrup’s challenge. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion III. Woodrup’s Allegation of Ineffective Assistance of Counsel Does Not State a Prima Facie Case for Relief One of the more prevalent allegations found throughout Woodrup’s mélange of complaints is his allegation of ineffective assistance of counsel. In order to successfully prove he is entitled to habeas relief based on ineffective assistance of counsel, Woodrup would need to, “prove that his trial counsel's performance fell below an objective standard of reasonableness.” Suarez v. Gov't of the V.I, 56 V.I. 754, 759-60, 2012 V.I. Supreme LEXIS 49, *5 (citations and internal quotations omitted). In reviewing such a claim, a court must, “indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.” Jd. at 760 (citing Bell v. Cone, 535 U.S. 685, 702 (2002)) (internal quotations omitted). Also, a court’s, “scrutiny of counsel's performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Consequently, proving ineffective assistance of counsel “presents a high bar.” Suarez, 56 V.I. at 759. “The benchmark ... must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 671; see also United States v. Gray, 878 F.2d 702, 711 (8rd Cir. 1989) (“It is... only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance.”) (citing Strickland, 466 U.S. 689-90). “Tactical decisions about which a client or fellow counsel might disagree do not Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion qualify as objectively unreasonable.” Ibrahim v. Gov't of the V.I., 2008 V.I. Supreme LEXIS 20, *5 (citing Bell v. Cone, 535 U.S. 685, 702 (2002)). Woodrup alleges, “ineffective assistance of trial and appellate counsel for failing to pursue the rights given without this material evidence issues such a force to Plaintiff of status defense, ignorance, fear, fraud and inadvertence mistake [sic].. ... § He alleges that, “he was dissatisfied with trial Counsel, Leslie L. Payton .. . ‘unethical representation’ at the trial [sic], as well as, during pre-trial proceedings,” and alleges, “had Woodrup, knew [sic] before the trial had commence [sic] that his ‘Retained Trial Counselor has NO legal interest in the representation of Woodrup,” he would have sought to obtain new counsel. Yet Woodrup does not say which rights his counsel failed to pursue, he does not say what was “unethical” about his representation, and he does not offer up facts showing that his counsel had no interest in his case. Simply being “dissatisfied with” one’s counsel is not enough to prove ineffective assistance of counsel. Clients might not always agree with decisions made 5 Mem. 2. Woodrup mentions ineffective assistance of appellate counsel only one other time, in the Conclusion portion of his Memorandum, where he says, “Moreover, Plaintiff of status suffered such significant ineffectiveness [sic] assistance of counsel at the appeal of his conviction that the upholding of that conviction cannot be relied upon either. Plaintiff of status effectively had no legal representation at his criminal trial or on direct appeal from that conviction as the attorney assigned for his trial not only failed to object to exculpatory evidence against Plaintiff and Plaintiff [sic] attorney on that direct appeal from his conviction disregarded those non-frivolous issues and displayed a conflict of interest against Plaintiff . . ..” Woodrup offers no specific allegations as to how his appellate counsel, “disregarded” non-frivolous issues (his counsel pursued many non-frivolous issues on appeal) or how counsel displayed a conflict of interest with him (there is no evidence of this at all), and no allegations suggesting that he “effectively had no legal representation” at either stage in his case. The Court finds that these allegations regarding his appellate counsel are conclusory and unsupported, and do no warrant further discussion. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion by counsel, but—as said above—courts give deference to counselors and their performance in their duties. For, “[i]t is all too tempting for a defendant to second- guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689. Woodrup also objects that Windell Lincoln, Roy Hansen Jr., and Carolyn Hansen, three alibi witnesses in his trial, would have been “perfect ‘alibi witness[es]’,” ‘Sf properly presented to the trial court by Counselor, Leslie L. Payton in which who [sic] neglected this adequate defense by all means.””? Generally, whether or not to call a particular witness is, “a tactical decision and, thus, a matter of discretion for trial counsel.” Warren v. Brunell, 1997 U.S. Dist. LEXIS 1558, *12 (W.D.N.Y.) (quoting United States v Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986), cert. denied, 479 U.S. 836, 93 L. Ed. 2d 78, 107 S. Ct. 134 (1986)); Jenkins v. Ballard, 2016 W. Va. LEXIS 264, *85 (“(Clounsel'’s decision not to interview or call witnesses is a tactical decision.”) (citing Goodson v. United States, 564 F.2d 1071, 1072 (4th Cir. 1977). However here it seems that this is not even a case where counsel and defendant disagreed on whether to call a witness: later in his same memorandum, Woodrup goes on to describe his alibi witnesses’ testimony before the trial court. He describes how, “Defense witness [sic] Roy Hansen Jr. and Windell Lincoln both testified that the 7 Mem. at 4. Woodrup v. Gov’t of the V.1. Case No. ST-16-MC-47 Memorandum Opinion petitioner was located at Booth#1 [sic] of the Carnival Village when the trio heard of the victim’s shooting,”® and how Hansen testified that, “Woodrup wasn’t at the scene crime scene [sic] regarding the shooting of the victim.”® Woodrup alleges that, “defense witness Lincoln, further testified to that [sic] they all went straight to the Carnival Village directly to Booth#1 while at the village.”!° He says also that Hansen further testified that she drove Woodrup to the airport next morning so that he could catch a flight to Atlanta for his job interview.!! In his own memorandum then, Woodrup concedes that his counsel did present at trial Woodrup’s three alibi witnesses, and he submits that those witnesses testified to his not being at the scene of the crime when the crime occurred. Woodrup makes no specific allegation as to how his counsel could have presented these witnesses to alibi Woodrup any better. Woodrup also argues he had ineffective assistance of counsel because, “[t]here was no finger prints, gun, gun powder, DNA or any other evidence linking appellant to this crime but Callwood [sic] false testimony.”!2 The People’s inability to provide certain evidence does not support the argument that Woodrup had ineffective assistance of counsel. Woodrup faults his counsel for, “failing to do-conduct [sic] a pretrial investigation and pre-paration [sic] and collecting [sic] Exhibits 7-9 and pointing out 8 Id. at 5. 3 Id. 10 Id. at 4. 11 Woodrup points out this fact apparently because at trial it was important to his defense to explain why he took an early-morning flight to Atlanta the morning following the shooting of the victim. 12 Mot. at 14. Woodrup v. Gov’t of the V_I. Case No. ST-16-MC-47 Memorandum Opinion the fragrant [sic] discrepancies in the height and weight of [Woodrup] and. . . the inconsistent testimony of Callwood and impeach [sic] his credibility.”!3 In other words, Woodrup faults his counsel here for failing to collect three exhibits, which are three photos, and present them at trial. The three photos are apparently of Woodrup: one undated, frontal picture of him standing up against a wall in plain clothes; a second, Woodrup’s self-titled “Prison Photo”, also undated, showing him in prison, this time with his hair shaved, standing up against a wall; and the last a picture of sear tissue on the back of Woodrup’s head.!4 Written on the Prison Photo is, “Woodrup weight is still the same as 2010 which is 178 Ibs. and NOT 220, 240, or 250 Ibs.”15 The fact that Woodrup’s counsel did not present these pieces of evidence— even if they were available to counsel during the trial!6—would not show that counsel’s conduct fell outside the range of reasonable professional assistance. See Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998) (“In sum, the relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable.”) (citing Strickland, 466 U.S. at 690). It may have been that counsel chose not to present the photos as a tactical decision; indeed, their probative value is not apparent to the Court!7, and the Court 13 Mot. at 15. 14 See Mot., Ex. 7-9. 15 “178 Ibs.” appears to be written over correction fluid or something similar, indicating that the number was changed at some point. 16 It’s not clear they were, as two of the photos were apparently taken while Woodrup was in prison, although they could have been taken prior to trial. 1 For example, the photos are not dated, so by looking at the photo of Woodrup outside of prison, one is entirely unable to know when it was taken or how he it have gotten it into evidence if Woodrup did not take the stand. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion does not find they were material, admissible evidence that would have been favorable to the defense. Finally, Woodrup gives the impression that his counsel was disinterested in his defense and failed to challenge the testimony of the prosecutions witnesses. Yet Woodrup himself cites to his counsel’s cross-examination of witness Callwood. E.g., Mot. at 4 (“Then he settled on #4 under cross examination[.] Callwood was again 399 unsure and stated ‘It look like the guy.”). Also, in its decision the Supreme Court discussed how, “Woodrup moved to suppress Callwood's identification before trial . . . but the Superior Court denied this motion, finding that the identification procedures were not impermissibly suggestive.” Woodrup himself also cites to testimony from the suppression hearing. See Mot. 17. These facts—some of which Woodrup provides—directly contradict any allegation by Woodrup that his counsel failed to challenge Callwood’s testimony and pursue Woodrup’s defense. The Court does not find on the fact’s Woodrup has alleged, even if the Court takes those facts as true, that Woodrup has shown would be entitled to relief. Even on those facts, his counsel's performance did not, “[fall] below an objective standard of reasonableness.” This is especially so considering that Woodrup provided facts showing that his counsel called to testify his alibi witnesses, cross-examined at least one of the People’s witnesses, and brought a motion to suppress testimony of a prosecution witness. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion IV. Woodrup’s Challenges to Witness Credibility Do Not Provide an Adequate Basis for Habeas Relief The crux of Woodrup’s remaining, coherent argument is a challenge to the credibility of Austin Callwood’s testimony. He questions why Callwood said of the shooter’s appearance, “He had a cold calculating look,” instead of describing the shooter’s particular facial features.!8 He alleges multiple discrepancies between testimony of Callwood and testimony of other witnesses, and between different parts of Callwood’s own testimony.!9 He questions why in his testimony Callwood didn’t describe the shooter as having large scar tissue on the back of his head, as Woodrup does, since Callwood testified to having seen the shooter up close.20 And he wonders why Callwood testified about a photo presented to him that, “It look [sic] like the guy,” who shot the victim, instead of stating more affirmatively, “That [sic] the guy.”2! Woodrup concludes that, “Callwood never saw the shooter.”22 itT9 However, “[a] motion for writ of habeas corpus is not the proper forum for challenging the credibility of witnesses.” Destin v. Gov't of the V.I., 2017 V.I. LEXIS 127, *9 (V.I. Super. Ct.) (quoting Dowling v. Gov't of the V.L, 44 V.1. 256, 264-265 (V_I. Super. Ct. 2002); see Codrington v. Gov't of the V.I., 2016 V.I. LEXIS 190, *10 (VI. Super. Ct.) (“[A]n issue which is raised in the trial court, and upon which conflicting testimony develops, cannot serve as a basis or habeas corpus.”). “Any final 18 Mot. at 3. 19 Td. at 4-10. 20 Td. at 10-12. 21 Id. at 12. 22 Td. at 4. Woodrup v. Gov’t of the V.I. Case No. ST-16-MC-47 Memorandum Opinion determination regarding the believability of witnesses at trial and the weight to be accorded such testimony, is within the sole province of the jury.” Dowling, 2017 V.I. LEXIS 127, *15 (citing Barber v. CSX Distrib. Servs., 68 F.3d 694, 700 (8rd Cir. 1995) ("Evaluation of witness credibility is the exclusive function of the jury . . .")).28 Accordingly, Woodrup’s challenge to the credibility of a trial witness does not state an adequate basis for habeas relief. Codrington, 2016 V.I. LEXIS 190, *10. What’s more, the Supreme Court concluded that the trial court properly instructed the jury, “to examine any identification ‘with great care.” Woodrup, 63 V.I. at 721 (quoting the trial court). The court told the jury specifically to consider, “whether the witness ... had an adequate opportunity to observe the person who committed the crimes charged,’ whether ‘the witness’ identification testimony is positive and unqualified,’ ‘whether the witness failed to identify Caba Woodrup at any time, identified someone [else] as the person who committed the crime, or changed his or her mind about the identification at any time,’ and ‘whether the witness is positive in the identification and whether the witness' testimony remains positive and unqualified after cross examination.” Id. 23 See also, United States ex rel. Helwig v. Maroney, 271 F.2d 329, 332 (3rd Cir. 1959) (‘Whether the evidence . . . proved his guilt was properly a jury question. The jury decided it [did]. The District Court may not, on a petition for habeas corpus, usurp the function of the state jury by determining, de novo, the innocence or guilt of a prisoner convicted under state process.”) (citing Shaver v. Ellis, 255 F.2d 509 (5th Cir. 1958)); Scoti v. Fisher, 652 F. Supp. 2d 380, 430 (W.D.N.Y. 2009) ("Credibility is quintessentially a matter of fact, reserved in almost every circumstance for the trier. . . . [I]t would be wholly inappropriate for a federal court to repastinate soil already thoroughly plowed and delve into the veracity of the witnesses on habeas review.") (quoting Sanna v. DiPaolo, 265 F.3d 1, 10 (1st Cir. 2001)); Vassell v. McGinnis, 2004 U.S. Dist. LEXIS 26473, *19-20 (E.D.N.Y.) (“[H]abeas courts may not disturb a jury's findings regarding the credibility of witnesses, and must presume that any conflicting testimony was resolved in favor of the prosecution.”); United States ex rel. Smith v. Page, 1997 U.S. Dist. LEXIS 1214, *35 (N.D. Ill.) (‘[Petitioner] argues that O'Connor's testimony lacked credibility and was rife with inconsistencies. This argument .. . runs up against the well-established principle that evaluating credibility and resolving conflicting testimony are tasks for the trial court, not a habeas judge”); Jerry v. Wainwright, 1980 Fla. App. LEXIS 16763, *4 (“[T]he resolution of conflicting testimony is peculiarly within the province of the trial judge.”); State ex rel. Germain v. Ross, 39 N.D. 630, 634 (1918) (“[I]t is well settled that on habeas corpus the court will not weigh conflicting testimony or measure the credibility of witnesses . . ..”). Woodrup v. Gov’t of the V.I Case No. ST-16-MC-47 Memorandum Opinion After the jury was given that detailed instruction, it determined the believability of witnesses’ testimony and assigned weight to that testimony as a jury is charged to do. This Court may not second-guess the jury’s determination, made after careful instruction by the trial court CONCLUSION Woodrup’s petition for habeas corpus has not set forth a prima facie case for relief, and portions of it are procedurally barred. The writ will not be issued DATED: June 0 2018 Lee fyaeter, Kathleen fe OE — Judge of the Superior Court of the Virgin Islands ATTEST: ESTRELLA H. GEOR mf ourt Bua Con DONOW AN Conk ick NON AN Je a 2018