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MICHAEL WAYNE HASH v. Record No. 081837 OPINION BY JUSTICE LEROY F. MILLETTE, JR. November 5, 2009

DIRECTOR OF THE DEPARTMENT OF CORRECTIONS FROM THE CIRCUIT COURT OF CULPEPER COUNTY John R. Cullen, Judge In this appeal, we consider whether the Circuit Court of Culpeper County erred in denying a writ of habeas corpus to Michael Wayne Hash. I. Facts and Proceedings Below A. Procedural History

In February 2001, Hash was found guilty in a jury trial of the capital murder of Thelma B. Scroggins ("Scroggins" or "the victim"). He was sentenced to life imprisonment without At the time of Scroggins' murder Hash was

the possibility of parole.

in July 1996, she was seventy-four years old. fifteen years old.

Hash was not charged with the murder until

2000 when he was nineteen years old. Hash appealed his conviction to the Court of Appeals, which affirmed the trial court's judgment in an unpublished opinion. 2002). Hash v. Commonwealth, Record No. 1290-01-4 (Sept. 3,

We denied his petition for appeal and petition for

rehearing in this Court.

Hash filed a petition for habeas corpus in the Circuit Court of Culpeper County on April 19, 2004, in which he raised claims of ineffective assistance of counsel and prosecutorial misconduct. The circuit court 1 held that Hash's attorneys'

performance was deficient, but Hash failed to prove prejudice as required under Strickland v. Washington, 466 U.S. 668 (1984). The circuit court further held that there was Hash appeals

insufficient proof of prosecutorial misconduct. the judgment of the circuit court.

Gene M. Johnson, Director

of the Department of Corrections ("Director" or "Commonwealth") did not appeal the holding that Hash's attorneys' performance was deficient. B. Hash's Criminal Trial

Evidence presented at trial revealed that Scroggins was found dead in her home, having suffered four gunshot wounds to the head at close range. Three of the wounds were to the left

side of her head and one was to the back of her head. Investigator Scott H. Jenkins from the Culpeper County Sheriff's Office testified that the only DNA recovered from the scene was from the victim and that while five fingerprints were recovered from the storm door, no match was ever made. Furthermore, no firearm was recovered that matched the bullets References to the underlying criminal trial will utilize the phrase "trial court." References to the habeas corpus proceedings will utilize the phrase "circuit court." 2
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recovered from the victim's body. as .22 caliber.

The bullets were identified

The evidence against Hash at trial included testimony from "an eyewitness," Eric Weakley ("Weakley"), testimony from Hash's cousin, Alesia Shelton ("Shelton"), Hash's statements to the police and his own testimony in which he admitted that he, Weakley, and Jason Kloby ("Kloby") discussed robbing an "old lady" in the area, and testimony from Paul Carter ("Carter") that Hash confessed to him while they were in jail together. There was no physical evidence that connected Hash

to the murder. Shelton testified that on the night Scroggins was murdered she overheard Hash and Kloby at Hash's house talking about Scroggins and how "they were going to do it tonight" and that Hash said "they should make her suffer." Shelton also

testified that after she left Hash's house that night, she saw "the blue car from [Hash's] house" parked near the victim's house. Shelton also stated that on a later occasion she, Kloby, and Hash rode their bicycles to a church across from Scroggins' house, where Kloby told her how he and Hash had gained entry to Scroggins' house and shot her. Shelton

testified that she looked at Hash and he "nodded his head and said yes--yeah." Shelton testified that Hash "said to 3

[Kloby], he said you couldn't do nothing like that, could you, man, and [Kloby] was like no, man, not me, you know I couldn't do nothing like that, and then laughed" in a sarcastic manner. Weakley testified that he, Kloby, and Hash gained entry into Scroggins' house and attacked her. Weakley stated that

Hash shot the victim first, "[t]wice in the side of the head . . . [t]he left side." Weakley also stated that Kloby shot

her again "around the same place," then fired the last shot into the back of her head. Carter testified that while he and Hash were being held in the Charlottesville-Albemarle Regional Jail, they spoke with each other. Carter said that Hash revealed that he was Carter stated that he told Hash that his

charged with murder.

cousin was in jail on a "murder case, same thing, capital murder." Carter testified that Hash then asked him if he Carter testified that in

could "get convicted without a gun."

the course of this dialogue Hash confessed to the murder, saying he "shot the lady twice" and that he used a .22 caliber gun and that he "got away in a vehicle, her truck or whatever she had, the vehicle, that's all. He said vehicle." Carter

said that Hash confessed "it was him and two other dudes while he was doing it." Carter also testified that Hash told him

"he had a cousin that was trying to tell on him what happened about the whole case and everything." 4

Hash testified at his trial on his own behalf that in the beginning to middle part of 1995 he talked with Kloby and Weakley about robbing somebody in the area. Hash said that

Kloby and Weakley wanted to rob somebody who was not going to put up much of a fight, and Hash assumed they were talking about an old lady. Hash believed that the proposed robbery

was to get money for drugs because "[o]ver the course of time there was a time when Jason [Kloby], Eric [Weakley] and myself did do drugs." Hash assumed "they were planning this months According to Hash,

in advance to get some money for drugs."

Kloby mentioned the robbery a second time in a telephone conversation two to four weeks after the first conversation, and a final time "several months down the road to a year later in the mall." At his trial, Hash testified that he told Kloby

he did not "want to have anything to do with it," but admitted originally planning on participating. According to Hash,

"[i]t's not something [he] really wanted to be involved in, but [he] was saying [he] was going to be involved in." denied to the jury any participation in the murder. C. The Habeas Corpus Proceeding Hash

In his habeas corpus proceeding, Hash alleged that his attorneys were deficient in failing to discover letters that Carter wrote to a federal district court judge and others seeking assistance in obtaining a reduction of his sentence in 5

a federal case because of his testimony in Hash's trial.

Hash

further alleged that his attorneys' deficiencies prejudiced his case and, had these communications been revealed to the jury, it would have undermined Carter's credibility and created a reasonable doubt concerning Hash's guilt. A hearing on Hash's habeas corpus petition was held on October 16 and 17, 2007. According to Carter, Hash confessed Evidence

to him in "April, May, around that area" of 2000.

revealed that on May 24, 2000 Hash was transferred to the jail where Carter was held. Carter first contacted Investigators

Jenkins and Mack on June 26, 2000. Investigator Mack testified that Carter was a "substantial witness" and agreed that once Carter became a witness it "change[d] the way he looked at the case." Investigator Mack characterized the case as "iffy" with just Shelton and Weakley as witnesses. When asked to evaluate the

value of Carter's testimony, he replied, on a "[s]cale of one to ten, I would say eight." Richard Davis ("Davis"), one of Hash's attorneys for Hash's murder trial, testified that the Commonwealth's Attorney told him about Carter before trial, that Davis had written a note in Hash's case file that Carter was involved with a federal drug case, and that he was aware that Carter had "testified before the feds." 6 Davis stated that "[l]ooking

at [Carter's] file you could learn some things perhaps" and admitted that having Carter's letters would have been "very helpful." Michael T. Hemenway ("Hemenway"), Hash's other attorney at trial, testified that he had information about Carter before trial, including the fact that Carter "was a big drug dealer and that he had cooperated before and that he had reduced his sentence based on that cooperation." As between

the two attorneys, Hemenway was responsible for the investigation of Carter. Hemenway admitted he did not obtain

or review Carter's file in the federal district court before Hash's trial for capital murder. Hemenway acknowledged that

looking into Carter's federal file would have been a "good idea" and stated that Carter's letters were "potentially useful." However, Hemenway did not believe that in cross-

examining Carter he needed to use even the documents he did possess, which included Carter's federal indictment and conviction order, because Carter freely admitted his conviction. In addition, Hemenway testified that Carter

talked freely about his motion under

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