# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 7th 

### day of January, 2020

. Kevin Lamont Knight, a/k/a Suge Knight, Petitioner, against Record No. 1162-18-1 Commonwealth of Virginia, Respondent.

Upon a Petition for a Wr it of Actual Innocence Before Judges O’Brien, Russell, and Senior Judge Clements
Kevin Lamont Knight, also known as Suge Knight, petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. A jury convicted Knight of first-degree murder, robbery, and two counts of using a firearm in the commi ssion of a felony in the Circuit Court of the City of Norfolk. By final orde r of January 28, 2004, the trial court sentenced Knight to life imprisonment plus fifteen years, consistent with the jury’s verdict. Knight contends that he is innoc ent of the offenses and is enti tled to relief based upon the purported recantations of his accomplices and two informants. Knight als o argues that former Norfolk Police Detective Robert Glenn Ford used “unscrupul ous tactics” to secure his con victions. He notes that Ford was convicted in federal court of bribery. Kni ght contends that he is entitl ed to an evidentiary h earing on the proffered recantations following the Supreme Court of Virginia’s decisionin Dennis v. Commonwealth, 297 Va. 104 (2019). The Attorney General has moved to dismiss Knight’s pet ition.
B ACKGROUND At 11:12 p.m. on August 16, 2002, Norfolk P olice Officer Whites ide and his partner responded to a call of “shots fired” at 1539 Pal metto Street in Norfolk; the o fficers arrived at 11:18 p. m. Officer Whiteside saw the victim, later identif ied as Troy Jordan, lying on the driveway of 1533 Palmetto S treet with a window blind wrapped around his feet. Jordan had an obvious gunshot w ound to his head. Officer Whiteside securedPUBLISHED-2- the entire perimeter. He noti ced that the window of the rear d oor of the duplex near Jordan’s body was “completely broken out,” with curtains lying there and glass on the porch. The rescue squad arrived almos t immediately behind the officers . Jordan was lying in the driveway in the fetal position. There was a large pool of blood beneath Jo rdan’s head; however, he had respirations and a pulse. Paramedics transporte d Jordan to the hospital, but he d ied from his injuries. The medical examiner testified that Jordan died f rom a gunshot wound to the back of the head and that there “was no evidence of close range fire on the guns hot wound.” The direction of fire was “from back to fr ont.” Jordan also had sustained multiple blunt force injuries of his head, torso, and legs. The medical examiner recovered a lead bullet core fragment and a bullet jacket from Jordan’s head. Mark Hayes pleaded guilty to Jor dan’s murder and use of a firea rm in the commission of murder. 1 Hayes testified against Knight , both at Knight’s preliminary he aring and at trial. 2 According to Hayes, on August 16, 2002, he wanted to buy marijuana. Hayes saw Knight in Norfolk’s First View neighborhood. Hayes, who had dated Knight’s siste r, knew Knight as “Ses.” Kn ight got into Hayes’s car and directed him to drive to a house where Knight t alked with a woman named “Sheena .” Hayes overheard Knight and Sheena talking about a place where there was a lo t of marijuana. Knig ht then directed Hayes to drive to George “Geo” McAllister’s 3 house, where McAllister entered Hayes’s car. As Hayes drove, Knight and McAllister talked about robbing the place. Hayes saw that they had firear ms, which Hayes described as “a .9 and a .40.” At McAllister’s direction, Hayes drove to a location beside som e railroad tracks. Knight and Hayes exited

1 The trial court sentenced Hayes to forty years’ imprisonment w ith twenty-eight years suspended for Jordan’s murder and to five year s’ imprisonment for the use of a firearm in the commission of Jordan’s murder.

2 The record indicates that Hayes testified at the preliminary h earing “on advice of c ounsel”; Hayes’s counsel assured the general dis trict court that he had conferre d with Hayes and that “he’ ll tell the truth.”

3 The record indicates that McAll ister was the first to confess but contains no details concerning how he came to the attention of the police. Detective Ford testifi ed that McAllister gave t hem the names of two individuals, so the police c onducted a photo line-up and he pic ked out pictures. Based on McAllister’s statements, the police secured war rants against Hayes and Knigh t on November 26, 2002.-3- the car and walked along the rai lroad tracks to the side of som e apartments. 4 Knight gave Hayes “a .9 mm and he took the .40.” Knight t old Hayes to knock on the door o f 1539B Palmetto Street; Hayes did not know the occupants of the apartme nt. When Jordan opened the door, H ayes asked him where “the weed” was, and Jordan closed the door on him. Kn ight instructed Hayes to knoc k again. As soon as Jordan opened the door, Knight “bum rushed” Hayes into the residence and ordered Jordan to the floor. Knight “stomped” Jordan’s head and kicked his le g, demanding to know where the marijuana was. Jordan told Knight the mar ijuana was in a bag, which Haye s saw on the floor. As Hayes looked in the bag, which had marijuana, Jordan b roke free. Jordan ran to the back of the apartment and jumped through the window of the back door. Knight c hased Jordan and shot at him through the window. Hayes grabbed the bag and bolted out the front door, t urned left, and ran along the s ide of the building. Although Hayes saw some people as he fled, he “just ran ” back to his car. As he ran al ong the railroad tracks, Hayes heard more gunshots. Hayes saw Knight a few m inutes later at the car with a shoebox full of marijuana. Knight told Hayes that he had shot Jorda n in the back of the head. McAllister drove them away from the scene. Knight told Hayes n ot to worry because “his people would cover for him as an alibi. ” They drove to Pleasant Park, and Knight gave Hayes and McAllister some marijuana. McAllister remained in Pleasant Park, and Knight dr ove back to First View, where Hayes left him. Hayes went home but decide d that he needed a drink; he we nt to a club called “Night Moves.” When Hayes arrived at the club, Kni ght and Sheena were there. John Doxey’s cousins were vi siting with him on August 16, 2002, at his residence at 1543B Palmetto Street, which was directly acr oss from 1539B Palmetto Street. Palmetto Street, Doxey explained, is a dead-end and railroad tracks run behind the duplex apartment bu ildings. Doxey and his cousins had been watching a football game but whe n they heard what they thought was an argument outside, his cousins decided to leave. As they walke d to the car, Doxey heard three gunshots from the area of 1539 Palmetto

4 McAllister remained with the c ar because he knew the people in the house.-4- Street. When they turned around t o retreat to Doxey’s house, h e heard the loud “tisss h” of breaking glass. Doxey held his head down to prot ect it but looked back under hi s arm and saw a man about six feet tall “leaving out” of 1539B Palmetto. The man had a large-caliber c hrome weapon, possibly a .9mm, in his right hand and a bag under his left shoul der. The man jumped down th e steps, ran between the two buildings, and disappeared into the darkness; he did not fire any shots. Doxey and his cousins reentered hi s home and as they walked tow ard his bathroom for safety, Doxey heard more gunshots. Doxey calle d 911; he reported shots fired and gave the address. Doxey felt that they waited a long time for the police to arrive. When Doxey and hi s cousins went back o utside, Doxey saw a body in the street with a pool of blood around the head. Doxeyand his cousins returned to his house, and he called 911 again. Doxey’s cousins ultimately left before the p olice arrived. Doxey remained and spoke with Norfolk police officers that nigh t. At Knight’s trial, Doxey s aid that 1539B Palmetto ha d a reputation in the neighborhood for dope sales. The “ primary” person who lived at 1539B was a female. That same night, Augusta Coleman w as visiting his girlfriend an d their daughter at 1539A Palmetto Street. Coleman was familiar with Sheena and Cary “Little J” D arden, who lived at 1539B Palmetto. Coleman’s girlfriend had been out side but she came into the apa rtment and said that she thought the apartment next door, 1539B Palmett o, “was getting jacked.” Col eman heard a crash and several gunshots. The others in the apartment f led. Coleman remained, however, b ecause his daughter was asleep. He went to the back bedroom and picked up the c hild but stayed inside because he could still hear shots. As he stood trying to decide whether to stay or go, the door “came open” an d a man in the doorway pointed a gun at him. Coleman identified Knight as the person in the doorway with the gun. 5 Coleman announced, “I’m just here with the baby.” Knight stood the re for a second, then turned and walked away. Coleman e ventually fled with the child.

5 Coleman had not participated i n a line-up or reviewed photogra phs.-5- Forensic Investigators Pede rson and Henderson responded to the scene. Pederson r ecovered a bullet fragment from a drainpipe, whic h was located at the corner of 1 533 Palmetto Street, a location consistent with having been fired from the re ar of 1539B Palmetto. Pederson al so found two bags of marijuana in the kitchen on a high chair. A bullet was lodged in the wall of the living room in 1539A Palmetto. Henderson later responded to a second location and collected one bu llet and two bullet fragments from Coleman’s car, which had two bullet holes in the winds hield. Henderson also collect ed a gun-shot residue t est on Coleman, which was negative. Investigator M artin responded to 1539B Palmetto on August 17, 2002, and collected three .40 caliber cartridge casings. An e xpert from the Department of Fo rensic Science testified that the bullet fragments recovered from Coleman’s car and the bullet jacket re covered from Jordan’s head had been fired from the same gun barrel. 6 The expert testified that the three .40 caliber casings Marti n had found had been fired from the same gun. The poli ce never found the firearm us ed to kill Jordan. Clarence Coles, a convicted fel on, met Knight in the Hampton Ro ads Regional Jail in March 2003. Coles was also from Norfolk, a nd he and Knight knew people in c ommon. Knight told Coles that “he shot the dude” in the back of the hea d from a distance and gestured to show how he had shot the victim. Knight told Coles that his cousins were going to provide an alibi by s aying he was at a club on the night of the murder. Coles contacted the police because of “the manner in w hich” Knight recounted the killing. Knight also made incriminating statemen ts to another inmate from the H ampton Roads Regional Jail, Anthony Summerville, who was also a convicted felon. While Summerville was helping him find books in the jail library, Knight told Summerville that he was charged with murde r. Summerville testified that Knight stated he pulled a gun on the victim duri ng a “sting” and the victim “ bucked,” which Summerville understood to mean that during a robbery the victim attempted to run and Knig ht shot him. Knight stated something about a

6 The expert was unable to determin e whether the jacket fragment s found in the driveway matched the fragment from the autopsy; the y had similar characteristics, ho wever.-6- .40 caliber gun and gestured to th e back of his head to indicat e where the victim had been shot. After the murder, Knight and his “homeboy” went to “Night Moves.” As forecast by Coles, Knight pres ented an alibi at trial. Knig ht’s friend Selena Har ris testified that she picked up Knight from Golden Corral, where he worked, at around 9:00 p.m. on August 16, 2002, because a group of friends had planned to go to “Night Moves” club to cel ebrate Robert Jones’s birthday. 7 Harris took Knight to his apartment, where he changed and then he, Harris, and “some other peop le” went to “Night Moves,” arriving around 10:30 p.m. Jones rode to the club with Kni ght’s girlfriend, Lori Ann “Candy” Carter, Felicia Hall, and Knight’s sister, Julie Ann Gibbs. They arr ived at the club between 10:0 0 and 10:15 p.m. Gibbs, however, forgot her ID, so could not get into the c lub. Carter took Gibbs home, an d Gibbs saw Knight at the house getting ready to go to the club when she arrived. 8 Gibbs explained to Knight thatshe was unable to get into the club and offered to stay home with the c hildren. Knight and Harris arri ved at the club about ten to f ifteen minutes after Jones, Carter, and Hall. The party-goers remained at the club until it closed sometime between 2:00 and 3:00 a.m. According to Jones and C arter, Knight stayed at the club “the whole time.” Harris recalled that Knight’s ha nd was injured at the time and he had a sling; Harris was not sure which hand. Hall could not recall if Knight was wearing the sl ing on August 16, 2002, because “he could take if off to let his arm rest. ” Hall explained that Knight h ad injured his hand when he f ell off a bike and that he had to have stitches in his ha nd; she did not recall the dat es of the injuries. Carter stated that Knight had a sling on his arm for about two weeks because he fell off his bi ke; he sustained another injury to his right hand shortly after August 16, 2002. Carte r did not remember how Kni ght sustained the injury that required stitches.

7 Jones is Knight’s brother.

8 Carter did not testify about t aking Gibbs home and stated that Knight arrived at the club fifteen minutes after she did.-7- The employment records from Gol den Corral showed that although Knight was scheduled to work on August 16, 2002, he never clocked i n. Knight’s supervisor reca lled a time when Knight arrived for work but was sent home because he was wearing a sling. The supervisor c ould not recall the date that Knight was sent home; however, the general manag er testified th at if he had fol lowed procedure and arrived for work, he should have “swiped in.” Knight’s medical records showed that he sprained his right hand on August 2, 2002. He was given a sling and instr ucted to use it for four t o five days. Knight appear ed in the emergency room again on August 18, 2002, with alaceration to the back of his right hand along the knuckles. Knight received stitches and a splint for his hand. Knight also presented testimony f rom two inmates who claimed th ey had spoken with Hayes in the Norfolk jail. Hayes told William Scott that the police “had hi m and his stick man,” Knight—whom Hayes named—for murder. Scott testifie d that Hayes told him that he “ain’t had nothing to do with it, but the homicide detective—he said, I ain’t trying to go to prison. So the homicide detective told [Hayes] to work with them.” According to Scott, H ayes declared that neither he nor Knight had anything to do with the murder. Scott did not know tha t Hayes had pleaded guilty to fi rst-degree murder and use of a firearm in the commission of murder. Asani Gum bs testified that he knew Knigh t and Hayes; he said that he had discussed the crime on Palmetto Street wit h Hayes while in the Norfolk ja il. When Gumbs asked Hayes “how he got mixed up in whatever,” Hayes sai d “he didn’t know why it happen ed.” Hayes told Gumbs that, although he had acted alone in the murder, he would do “whatever it takes” because he could not “do all the time by himself.” Gumbs also did not know that Hayes had pleaded guilt y, or the circumstances of his surrender to the police and subsequent confession.
P ETITION FOR W RIT OF A CTUAL I NNOCENCE Knight’s claim of innocence rests on the purported recantations of Hayes and Coles; a “declaration” from McAllister; and his proffer that Summerville also has “rec anted” his trial testimony but declined to provide a statement. Knight als o relies on Detective Ford’s fe deral convictions in p ressing his claim of innocence. The fulcrum of Knight’s argument is that without th e testimony of Hayes, Coles, and-8- Summerville, and knowing of Ford’ s “unscrupulous tactics,” no r easonable juror would convict him considering the lack of physical evidence connecting him to the offense.
A

NALYSIS “Code § 19.2-327.10 confers original jurisdiction upon this Court to consider a petit ion for a writ of actual innocence based on non-biolog ical evidence.” Phillips v . Commonwealth, 69 Va. App. 555, 562 (2018) (quoting Bush v. Commonwealth, 68 Va. App. 797, 803 (201 8)). To be entitled to a non-biological writ of actual innocence, the pe titioner must present evidence that was previously unknown or unavailable to him, and that could not have bee n discovered in the exercise of diligence before his conviction became final under Rule1:1(a). Code § 19.2-327.11( A)(iv) and (vi); Bush, 68 Va. App. at 804; In re Neal, 44 Va. App. 89, 90 (2004). In addition, the evidenc e upon which the petitioner relies must be “material and, when considered with all of the other evidence in the current record, will prov e that no rational trie r of fact would have found proof of guilt or delinquency be yond a reasonable doubt.” Code § 19.2-327.11(A)(vii); Bush, 68 Va. App. at 805-06. Newly-discovered evidence that is “merely cumulative, corroborative or collateral” is insufficient. Code § 19.2-327.11(A)(viii); Bus h, 68 Va. App. at 809. A petitioner can only obtain a writ of actual innocence if we f ind by “clear and convincing evidence” that he has proven all of the all egations required under Code § 19.2-327.11(A)(iv) through (viii). Code § 19.2-327.13; In re Brown, 295 Va. 202, 221 (2018) (evaluating claim for a biological writ of actual innocence). “‘[C]lear and convinc ing evidence’ must be convinc ing enough to render th e assertion to be proved ‘ highly probable or reasonably certain. ’” Id. at 228 (quoting Black’s Law Dictionary 674 (10th ed. 2014)). The clear and convincing standard “cannot be met with evidence that leaves ‘ competing inferences “equally probable.”’” Id. at 227 (quoting Edmonds v. Edmonds, 290 Va. 10, 22 (2015)). In evaluating a claim of actual innocence, this Court considers all of the fact ual information in its totality and tests it under the clear-and-convincing standa rd. Phillips, 69 Va. App. at 56 3-64; In re Brown, 295 Va. at 229. Thus, this Court must “make a probabilistic determination about what reaso nable, properly instru cted jurors would do.” In re Watford, 295 Va. 114, 123 (2018) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Having-9- considered the entire record, w e hold that Knight has not met t his high burden, notwithst anding his reliance on Dennis. The Supreme Court held in Dennis that “[d]etermining whether ev idence is true requires factual findings,” an endeavor that lies w ithin the expertise of the tr ial courts, not the appe llate courts. 297 Va. at 124, 130. Thus, “[i]n heavily fact-depe ndent cases . . . that turn on the materiality of new evidence offered by
new witnesses whose credibility is not appare nt from the record, the Court o f Appeals should err on the side of ordering a circuit court ev identiary hearing.” Id. at 130 ( emphasis added). The Supreme Court instructed: Where a new witness has been found, who has not previously test ified and who could not with due diligence have be en discovered before the co nviction became final, reference to the c ircuit court for an evidentiaryhearing might be appropriate because of a trial j udge’s unique ability to see an d hear the witness first hand and to evaluate his cr edibility from his appearance and demeanor while testifying. Witnesses who testified at the original tria l, but later decide to recant their testimony, stand on a different footing. Id. at 129 (quoting Haas v. Commonwealth, 283 Va. 284, 291-92 ( 2012)). This case involves no new, prev iously unknown witnesses. The w itnesses Knight presents previously testified, albeit McA llister testified only a t Knight’s prelimi nary hearing. Accordingly, Knight’s witnesses “stand on a different footing” fro m the witnesses presented in Dennis; thus, Haas v. Commonwealth, 283 Va. 284 (2012), and Carpitcher v. C ommonwealth, 273 Va. 335 (2007), control our review. “[T]o be ‘material,’ withi n the meaning of Code § 19.2-327.11(A )(vii), evidence supporting a petition for a writ of actual innocence based on non-biological evidence must be true.” Dennis, 297 Va. at 124 (quoting Carpitcher, 273 Va. at 345) . “Manifestly, evidence th at is false cannot be ‘material’ under the terms of the statute.” Carpitche r, 273 Va. at 345. “The materiality inquiry is particularly important when a petition for a writ of actual innocence is based largely on a recantatio n because, ‘[u]nless proven true, recantation evidence merely amounts to an attack on a witness’ credibility by the witness [himself].’” Id. at 128 (quoting Carpitcher, 273 Va. at 346). Although assessing whether eviden ce is true requires fact finding, this Court is vested with the statutory author ity to “engag[e] in factual eva luation” if , in the exercise of our discretion, we-10- determine that further factual development is unnecessary. Id. at 127. We find that further factual development is unnecessary in this case. “Traditionally, courts view recanta tions with ‘great suspicion. ’” Haas, 283 Va. at 292 (quoting Dobbert v. Wainwright, 468 U .S. 1231, 1233-34 (1984)). The Fou rth Circuit similarly has admonished “that a recantation, particularly by an accomplice, should be receive d skeptically.” Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir. 1975); see als o United States v. Lighty , 616 F.3d 321, 375 (4th Cir. 2010) (quoting United States v. Johns on, 487 F.2d 1278, 1279 (4th Cir. 1973)); United States v. Wilson, 624 F.3d 640, 664 (4th Cir. 2010) (same). Our skepticism of recantations “increa ses with the passage of time.” Haas, 283 Va. at 292. “Recantation evidence appe aring long after the trial has ended places the opposing party at a disadvantage similar to that which justifies statutes of limita tions.” Id. “Memories ma y have faded, witnesses may have disappeared or become i ncapable of testifying, physica l evidence may be unrecoverable and the recanting witness may have had ample time to acquire an extraneous motive to fals ify his original testimony .” Id. (emphasis added) (footnote om itted). “Courts are justifia bly leery of post-trial st atements by codefendants purporting to exonerate a cohort.” United States v. Bynum, 3 F .3d 769, 773 (4th Cir. 1993). We assess the evidence and pro ffers individually under Code § 1 9.2-327.11(A), and then consider the totality of the evidence Knight has presented in support of his claim of innocence. Code § 19.2-327.13. George McAllister Knight proffers an unsworn “Declaration” from McAllister dated December 2, 2016, while McAllister was incarcerated at St. Bride’s C orrectional Center. The declaration recounts that Hayes came to McAllister’s house to pick up a gun. Hayes was accompanied by an unidentified indiv idual—who, like Knight, went by the nickname “Ses.” McAllister offered them a drink and then asked for a ride to his girlfriend’s house in Pleasant Pa rk. On the way, Hayes said he had to make a stop to check on something. They parked by some railroad tr acks, and Hayes and the unknown “Ses” exited the car and walked toward some bushes. McAllister did not see where they went but later heard gunshots, then Hayes and “Ses” came running back toward the car and told him to get in and drive. They drove a few blocks and then switched-11- drivers. Hayes drove McAllister to his girlfriend’s house, gav e him about an ounce of “weed” and told him “that the guy tried to run and they started shooting.” McAllis ter states that when he was arrested in November 2002 for “a bunch of charges ,” he told the investigato r who was questioning him that he had information about the inciden t on Palmetto Street, hoping to re ceive a benefit. The declaration states that McA llister initiall y met with Ford briefly but did not speak with Ford until later, while he was “locked up on other charges.” During the i nitial meeting, Ford had McAllister look through mug shots, but he did not i dentify anyone. McAllister later identified Knight as the “Ses” who was with Hayes because Ford had a phot ograph of Knight and told McA llister, “this is Ses, this is who Mark says is Ses.” According to McAllister’s declaration, Ford also told him what to write in his statement. 9 He states that Ford told him they could cha rge him with all the offenses related to Jordan’s murder and that he would make sure McAllister “got the max” on his other pending charges

. We find that McAllister’s declar ation is not evidence that was “previously unknown or unavailable” to Knight or “such as could not, by the exercise of diligence, hav e been discovered or obtained” before Knight’s conviction became final. Code § 19.2-327.11(A)(iv) and (vi) (e mphasis added). The record establishes that McAllister was known to Knight and his counsel even before Knig ht’s trial. The Commonwealth called McAllister to testify at Kn ight’s preliminary hearing. 10 McAllister stated that he knew Knight as “Ses” and identified him in court. McAllister also confirmed that he kne w Hayes. McAllister stated under oath, however, that he did not reca ll the night of August 16, 2002, h ad never been to the address where the murder occurred, and did not “even have any idea where Palmetto Street is.” Knight’s trial c ounsel did not subpoena McAllister for Knight’s trial, although she had subpoenas issue d to thirteen other witn esses, including two inmates at the Norfolk City Jail . We conclude that McAllister’ s declaration is not ne wly discovered because Knight could have called McAlliste r as a witness at trial. Cod e § 19.2-327.11(a)(iv); In re Walker, 44

9 The trial record does not include McAllister’s statement to th e police.

10 The record contains a transportation order for McAllister, whi ch indicates that he was housed in the Norfolk City Jail at the time of Knight’s preliminary hearing.-12- Va. App. 12, 13 (2004) (denying writ of actual innocence where counsel received psychological reports before conviction became final). Moreover, even if McAllister’s de claration were properly before the Court, we find it unpersuasive because it fails to account for other objective circumstances i n the record. The declar ation does not explain how Ford knew of Knight and Hayes before he spoke with McAllist er. That omission is significant because the record establishes that Mc Allister spoke with Ford before H ayes and Knight did. The warrants for Knight’s arrest were issued on November 26, 2002. Hayes turned himself in and gave his statement to the police on November 29, 2002, because he had heard that there wa s a warrant for his arrest. Thus, the claim that the police did not know Knight’s identity until Hayes turn ed himself in is inconsis tent with the timing of the charges. We also note that McAllister tes tified at the preliminary heari ng that he did not recall the night of August 16, 2002, had never been to the address where the murder occurred, and did not “even have any idea where Palmetto Street is.” McA llister, nevertheless, confirmed that he knew Knight as “Ses” and that he “used to hang out with them [Knightand Hayes] all the time.” McAllister advised def ense counsel that he had known Knight for a long time, “that’s my homeboy, you know what I’m saying.” Thus, the record does not support the new claim that McAllister did not know Knight a nd impeaches the veracity of the proffered declaration. Anthony Summerville Knight asserts that, “on informa tion and belief,” Summerville l ied at Knight’s jur y trial. Summerville purportedly told a private inves tigator that his testimony was false but did not want to sign an affidavit “because he was concerned about being charged with perjury.” Knight urges the Court to accept his allegation as a proffer of evide nce he would present at an evid entiary hearing. We reject Knight’s proffer that Summerville would testify under oath that he perjured himself at Knight’s trial. By Knight’s own account, Summerville declined to sign a statement because he was afraid that he could be charged with perj ury. Under that circumstance , we cannot cred it that Summe rville would-13- state under oath that he had perjured himself. 11 Moreover, for the reasons set forth below, the record does no t support Knight’s theory that Sum merville and Coles concocted th eir testimony. Mark Hayes Knight proffers two affidavits f rom Hayes, both of which were e xecuted in 2006. The proffered affidavits provide different versi ons of the crime and Hayes’s knowledge of it. Thus, the current record contains three different versi ons of Hayes’s account of the mur der. In his recorded s tatement to police and his preliminary hearing testimony, H ayes gave substantially the same account he gave at trial, as recited above. In an affidavit sworn and s ubscribed to on January 6, 2 006 (January affidavit), which Hayes purportedly filed in the trial court, 12 Hayes averred that he knew of Knight only “by word of mouth in the Street”; they were never acquaintances. Hayes further stated that he did not know McAllister; therefore, he was not in the company of either man “on the day of the alleged crime.” Instead, the January affidavit claims that Hayes learned of the murde r itself and Knight and McAllist er’s role in it from an unnamed “young lady” and her friends. The affidavit cl aims that Ford coerced Hayes into telling the story t hat he testified to at Knight’s trial and supplied him a ll the information about the c rime. By letter to the cle rk of the trial court of June 19, 2006, however, Hayes asked that the January affidavit be “withdrawn” because he had “discovered that it is legally insufficien t and not properly before the [c] ourt as required by law.” The letter stated that Hayes was giving notice that he i ntended to resubmit an affidav it. On August 12, 2006, Hayes subscribe d to a second affidavit, whi ch he sent to the Norfolk Public Defender’s Office (August affida vit). In the August affidavit, Hayes expressly recante d his prior statements

11 In Madison v. Commonwealth, R ecord No. 0942-18-1, we ordered a n evidentiary hearing and certified questions to the trial court to assess the validity o f a proffered confession procured by Madison’s attorneys. See Order of Apr il 23, 2019. At the evidentiary he aring, however, the witness invoked the Fifth Amendment. See Transcript of June 24, 2019 hearing in the Circ uit Court of the City of Virginia Beach at 51-54. Cf. Teleguz v. Zook, 806 F.3d 803, 807 (4th Cir. 2015) (affirming denial of habeas corpus relief and noting that a purportedly recanting witness appeared at an evid entiary hearing on Teleguz’s claim of actual innocence “but refused to testify”).

12 Knight alleges that the affidav it was filed in the trial court , but the January affi davit does not appear in the trial court record transmitted to this Court, either in the criminal file or the habeas corpus files.-14- to the police and his prior te stimony. The August affidavit st ates that Hayes’s statem ents to the police were made under threat of physical violence. Hayes further stated that the prosecutor and his trial counsel promised him leniency for his tr ial testimony; he testified to further his own penological interests and was not truthful. Hayes retracted and r ecanted “any statement and/or p rior testimony” he gave a gainst Knight that implicated Knight “in the event s that transpire d on the night o f August 17, 2002, and the subsequent murder of Troy Jordan.” Hayes stated that he had pers onal knowledge to support his new claim that he and McAllister went to 1539B Palmetto on the night of August 17, 2002, 13 to purchase drugs. When they a rrived, “Troy” let them into the house, but Troy and McA llister began arguing. The pai r “struggled,” McAlliste r “wrestled” Troy to the ground, and then began “stomping” Troy’s head against the f loor. Troy broke free, ran, and jumped through the window at the rear of the apartment. McAllister fi red “random shots” out the window. Hayes later learned that Troy had died. McAllister told Hayes not to worry about the murder because “he knew some people who would put the wor d out on the street that someo ne else tried to rob Jordan and ended up killing him.” Hayes stated that the first time he heard the na me Kevin Knight was when Ford interrogated him on November 29, 2002, and he “assumed that this was who McA llister had pinned the crime on.” Hayes went along with what Ford said because he was afraid that McAllister would ha rm him and his family. The proffered affidavits clear ly present two different—and irre concilable—versions of Jordan’s murder. Knight “acknowledges that there are inconsistencies be tween [Hayes’s] two affidavits,” but suggests that it “seems understa ndable” that Hayes “may want to minimize his responsibility in this murder.” We disagree. Hayes entered guilty pleas to first-degree murder an d use of a firearm in the commission of murder for his role in Jordan’s murd er in 2003. He was sentenced to f orty-five years’ imprisonment with twenty-eight years suspended. M inimizing his own involvement i n Jordan’s murder after he had already been convicted and sentenced will not benefit Hayes. We are un persuaded by Hayes’s “costless

13 The offense date was August 16, 2002.-15- self-incrimination” that conflic ts with his sworn trial testimo ny and his obligation under his plea agreement with the Commonwealth to “testif y truthfully” at Knight’s trial . Drew v. Scott, 28 F.3d 460, 463 (5th Cir. 1994). Knight stresses that in both affi davits Hayes claims Ford threa tened and coerced him to implicate Knight. Knight claims that thi s common point from the otherwis e irreconcilable versions of the story, and the claim in both that Knight was not the shooter, are “the most sa lient points.” The record, however, belies these points. In his signed, writte n plea agreement, Hayes 14 confirmed that “there have b een no other inducements, promises, threats or coerci on of any kind imposed upon the Defe ndant nor suggested to t he Defendant by the Attorney for the Commonwealth or any agent of the Commonwealth .” (emphasis added). Moreover, Knight’s assertion that in both Hayes’s recantations he was not the shooter is incorrect. The January affidavit actually implicates Knight in Jor dan’s murder because it recoun ts that others were saying that “Geo” and “Kevin” had murdered someone. F inally, the record does not sup port the assertion repeated in both affidavits that Hayes did not know Knight. K night himself told the invest igators that he knew Hayes; and Hayes had dated Gibbs. According to Gi bbs, Knight and Hayes “had words” when Hayes broke up with her. In fact, Knight was so intimately acquainted with Hayes that he knew the details of an unrelated murder to which Hayes subsequently pleaded guilty. 15 Thus, the record, including Knight ’s own statements, refutes the bedrock claim common to both affida vits—that Hayes did not know Knight—and so provides a reasonable basis to question their validity. Furthermore, Hayes’s conflicting affidavits hinder Knight’s abi lity to meet his burden to show which of Hayes’s three accounts is tru e and, so, satisfy the material ity standard. See Carpitcher, 273 Va. at 345;

14 As noted, Hayes was represente d during the proceedings against him and his attorney also signed the plea agreement.

15 Hayes was sentenced to forty-th ree years’ imprisonment with fi fteen years suspended for a murder that occurred in May 2002. Knight a pparently provided the inve stigators with the initia l lead in that murder because Hayes had recounted it to Gibbs.-16- Code § 19.2-327.11(A)(vii). In Carpitc her, “the circuit court was unable to determine whether [the victim’s] recantation was true, and concluded that she was ‘threatened, i ntimidated and coerced’ to change her trial testimony.” 273 Va. at 346. Considering the circuit court’s f actual findings, this Court held that Carpitcher had not met his burden of proving that the recantation testimony was true and the Supreme Court held that because “Carpitcher failed to meet his burden of establishing the first component of [th e] two-part statutory burden, he failed to satisfy hi s burden of proof under the statute.” Id. at 347. We find that the same reasoning applies to the present case without the need for an evidentiary hearing. Conspicuously absent fr om Knight’s submissions is any explanation for the circumstances under which Hayes’s affidavits were pr ocured. The record before this Court, however, establishes that Knight threatened Hayes repeatedly. Knight’s counsel cross-examined H ayes regarding his plea agreement with the Commonwealth and statements in w hich he purportedly claimed tha t Knight was not involved in Jordan’s murder. Hayes explained that he d id not want to testify agains t Knight because he had been threatened “a couple of times about” testifying a gainst Knight. At Hayes’s s entencing hearing, his counsel noted Hayes’s cooperation by turning himself in and testifying against “the t riggerman.” 16 Counsel expressly represented to the sentencing judge that Hayes testified “under threat” at the preliminary hearing. Considering the documented history of Knight’s thr eats against him, we find tha t Hayes’s irreconcilable accounts do “no more than establish that [he] spoke f alsely on one or more occasions .” Id. at 346. Clarence Coles Knight has submitted an unsworn “Declaration” from Coles dated October 24, 2016, while he was incarcerated at Wallens Ridge State Prison. 17 In the declaration Coles claim s that he and Summerville made

16 The Commonwealth acknowledged H ayes’s cooperation and advised the trial court that considering his cooperation, the Commonwealth had exercised its discretion not to charge Hayes with Jordan’s robbery and the related firearm offense . The Commonwealth also advised the trial court th at there was no plea agreement and no cap on the possibl e sentence, and that it was the “day of reckoning” for Hayes.

17 Knight was incarcerated at Wa llens Ridge State Prison in 2005 and 2007, when he filed his state habeas corpus petitions. The r ecord does not disclose whether Coles and Knight were at Wallens Ridge at the same time.-17- up their testimony against Knightand practiced it repeatedly w hile they were housed together at the Hampton Roads Regional Jail. According to the declaration, Knight did not admit to killing anyone or having anything to do with the crime. Coles claim s that after he and Summervil le decided to use Knight to curry favor with the Commonwealth, Summerville cont acted “his girl,” who then co ntacted prosecutors on their behalf. But Coles is “not exactly sure” whether he also contacted prosecuto rs himself. During his meetings with the police, they “filled in all the de tails about the crime” for Co les; he did not learn any det ails of the crime from Knight. Once he had the stor y down, the police called in the p rosecutor, the same prosecutor who was handling Coles’s probation viola tion. The declaration claims that Coles wrote to the p rosecutor while he was incarcerated for an offense from Virginia Beach and stated that he had lied at Knight’s trial, but the prosecutor never responded. Coles met with Jennifer Give ns, Knight’s counsel, and two law s tudents on October 24, 2016, and told them everything in the declarati on. Coles states that he was n ot forced or coerced i n any way to talk with Givens and the law students or to sign the declaration. 18 The proffered declaration is inconsistent with Summerville’s te stimony at Knight’s trial that he and Coles were not housed in the same block at Hampton Roads Region al Jail, although he knew Coles. Summerville expressly stated that he had not discussed his test imony with Coles. As with Hayes, the record discloses that Knight had threat ened Coles repeatedly about tes tifying. Knight’s trial counsel vigorously cross-examined Coles and challe nged him with the contents of a letter that state d Coles did not know anything about Knight’s case. C oles stated that Knight had thr eatened him regarding his testimony. Coles told Detective Mayer 19 on April 2, 2003 that Knight inte nded to claim that he had bee n at a nightclub at the time of the murder, several week s before Knight filed his notic e of alibi. Thus, Coles’s statement to police

18 The declaration does not state whether there were any induceme nts for Cole’s statement, or whether Coles was advised that he c ould be subject to prosecution if he perjured himself at Knight’s trial.

19 At trial Coles stated that he gave his statement to Ford; howe ver, the document indi cates that Coles made his statement to Mayer.-18- demonstrated that he had non-publ ic information before Knight a sserted his defense, making it unlikely that he and Summerville contrived their testimony. Detective Ford Knight claims that Ford is res ponsible for his wrongful convict ion. Without any elaboration or explanation, he alleges that Ford requested $10,000 from him an d when he refused, “Ford employed his oft-used tactics, lining up snitc hes and coercing witnesses” to convict Knight. But now, “through the recantation of critical Commonwealth witnesses, the case concoc ted by Ford and pursued by the Commonwealth has been f atally undermined.” This Court acknowledges Ford’s f ederal convictions for conspira cy to commit extortion, extortion, and making false statements. See United States v. Ford, 470 Fe d. Appx. 146, 146 (4th Cir. 2012). We also acknowledge the United States Di strict Court’s finding that “Fo rd has a proven history of eliciting false confessions; he had previously be en demoted for securing a seri es of false confessions.” Williams v. Brown, 208 F. Supp. 3d 713, 735 (E.D. Va. 2016). We in no way condone or excuse Ford’s deplorable conduct in those cases. Notwithstanding our disdain for Ford’s conduct inthose cases, it is not sufficient in these proceedings for Knight—or any othe r petitioner—to plead merely conclusory allegations that Ford’s “oft-used tactics” were employed in his case. 20 Cf. Fitzgerald v. Bass , 6 Va. App. 38, 44 (1988) (en banc) (holding that “mere conclusions o r opinions of the pleader will not suffice to make out a case” in habeas corpus proceedings) (quoting Penn v. Smyth, 188 Va. 367, 370-71 (1948)). Instead, Knight must present this Court “clear and convincing evidenc e” to sustain his claim. Co de § 19.2-327.13. “Evidence is ‘[s]omething (including testimony, documents and t angible objects) that tend s to prove or disprove the existence of an

20 See Juniper v. Warden of the Sussex I State Prison, 2010 WL 52 81621 (Va. Cir. Ct. 2010) (rejecting claim during capital habeas corpus proceedings that “[t]he general circumstances described in the [federal] indictment are similar to Investigator Ford’s actions in Mr. Juniper’s case and provide good cause for discovery”); Porter v. Ward en of the Sussex I State Prison, 2010 WL 5281620 (Va. Cir. Ct. 2010) (same).-19- alleged fact . . . .’” In r e Pierce, 44 Va. App. 611, 612 (200 4) (quoting In re Rhodes, 44 Va. App 14, 15 (2004)) (alteration in original). K night’s bare allegations co ncerning Ford are not evidence. Totality of the Evidence Review Code § 19.2-327.13 requires the Court to “examine the ‘probativ e force of the newly presented evidence in connection with the evidence of guilt adduced at tr ial.’” Bush, 68 Va. App. at 808 (quoting In re Watford, 295 Va. 114, 124 (2018)). “Thus , we are required to l ook beyond whether the evidence is sufficient to sustain the conviction; we mu st also examine the likelihood of a reasonable juror f inding the petitioner guilty beyond a reason able doubt once all of the evidence has b een fairly considered.” Id. (quoting Watford, 295 Va. at 124). That is, the newl y-supplemented evidentiary r ecord “is reviewed in its totality,” and we evaluate its probative force “ under the clear-a nd-convincing st andard.” Brown, 295 Va. at 229. The Court must determine whether a petitione r is entitled to a writ of ac tual innocence “from a hy pothetical new trial in which a rational factfinder hears all of the evidence in the ag gregate . . . .” Id. (quoting Watford, 295 Va. at 125). “It is not enough for apetitioner to merely establish the exis tence of some conflic ting evidence that introduces the possibility of reasonable doubt.” Watford, 295 Va. at 124. Instead, a petitioner’s evidence “must establish such a high proba bility of acquittal, that [the reviewing court] is rea sonably certain that no rational fact finder would have found him guilty.” Id. Upon r eview of the entire r ecord, considering the old evidence together with the new , we find that Knight has not met his burden to show by clear and convincing evidence that no rational trie r of fact would have found proof of guilt beyond a reasonable doubt. Code § 19.2-327.13. Taken together, a reasonable jury likely would give considerable wei ght to the unrecanted testimony of the two disintereste d eyewitnesses, Doxey and Cole man. We also find that a reasonable jury likely would be unpersuaded by stale recantations that are inco nsistent with other reco rd evidence, including Knight’s own evidence of his cl ose relationships with both Haye s and McAllister. Moreover, the record provides reason for caution in eva luating the proffered evidenc e considering the numerous threats Knight-20- made against Hayes and Coles be fore his trial. Furthermore, a reasonable jury likely would consider Knight’s failed alibi to conclude that he had attempted to cover up his role in Jordan’s murder. Finally, in considering the tot ality of the record before us, w e note that Knight ave rs in his petition that the evidence upon which he relies became known or availabl e to him in “2016-2018” through “investigation of my case by the Innocence Project at UVA Schoo l of Law” and that he “could not have secured the new evidence without the assistance o f counsel.” W e note, however, that the proffered statements from Hayes, were executed i n 2006 and indicate that both Knight and Knight’s trial counsel received copies. 21 In addition, Ford was indicted i n the United States District Co urt for the Eastern Distr ict of Virginia in May 2010; a jury convicted himon October 27, 2010; and, the distri ct court sentenced him to 150 months’ imprisonment on February 25, 2011. See Ford, 470 Fed. Appx. 14 6. Thus, Ford’s convictions and sentence had been a matter of public recor d for at least five years befo re “2016-2018.” We hold that a rational, properly instructed jury would c onsider the demonstrably false assertions that Knight did not learn of the evidence upon which he now relies until “2016-2018” in assessin g the credibility of K night’s claim of innocence and would weigh them ag ainst Knight. Cf. Brown, 295 Va. at 231 (denying biological writ of actual innocence and f inding it “highly unlik ely” that a jury w ould sympathize with his recanted confessions to the Parole Board and that a “t ypical jury” would find that c ircumstance diminishe[d] “his newly articulated claim of actual innocence”). Accordingly, we hold that Knight is not entitled to the writ an d dismiss his petition. This order shall be published. A Copy, Teste: original order signed by the Clerk of the Court of Appeals of Virginia at the direction of the Court Clerk

21 Knight appended the August affida vit to a state petition for a writ of habeas cor pus, which he filed in the trial court in 2007.