Post-Conviction Litigation in Northern Virginia

• On July 12, 2024, a petition for a writ of certiorari was filed in the United States Supreme Court to the United States Court of Appeals for the Fourth Circuit to review the Fourth Circuit’s decisions in United States v. Moises Zelaya-Veliz, et al, 94 F.4th 321 (2024). Joseph King is counsel of record for the petitioners. The questions presented are: “1) Does the Fourth Amendment prohibit the issuance of apparent “all-data” warrants for Facebook accounts without any temporal limitation whatsoever, where the warrants resulted in exposing potentially more than a decade of the subject’s personal information and communications to government scrutiny?” and “2) Does the Fourth Amendment prohibit the issuance of apparent “all-data” warrants for Facebook accounts for a period of 18 months or longer, where the warrants demanded all conceivable contents of the accounts during that time period, including the account owners’ GPS information for eight months prior to the alleged crimes, even though the alleged incidents occurred over a less than a two-month period?” 
• On June 25, 2024, Kim Stover argued the matter of Liam Bates v. Commonwealth, Record No. 1319-23-4 before the Virginia Court of Appeals. 
• On February 16, 2024, the United States Court of Appeals for the Fourth Circuit issued a published opinion against the appellants in United States v. Moises Zelaya-Veliz, et al, 94 F.4th 321 (2024)(holding warrants for Facebook accounts did not violate Fourth Amendment’s particularity requirement; warrant for Facebook account without any temporal limitation was a “problem,” but applying good faith exception to exclusionary rule utilizing temporal limitations not settled law because it was “novel question[] posed by digital technology.”).
• On January 25, 2024, Joseph King obtained a retroactive 10-month reduction of client’s federal sentence based on the new "zero-point offender” guideline (U.S.S.G. §4C1.1) in the United States District Court for the Eastern District of Virginia (Norfolk Division). The zero-point offender guideline calls for a two-point decrease in offense level for certain “zero-point offenders,” like the client’s, in light of recidivism data that demonstrates zero-point offenders that have no criminal history have a significantly lower rate of re-offending as compared to other offenders. The client’s sentenced was reduced pursuant to 18 U.S.C. § 3582(c)(2), which permits courts to reduce a defendant’s sentence when the defendant’s sentencing guideline range “has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” The Federal Sentencing Commission promulgated the new guideline on November 1, 2023, which went into effect for incarcerated individuals on February 1, 2024. 
• On December 8, 2023, Joseph King argued the matter of United States v. Moises Zelaya-Veliz, et al, 22-4656 in the United States Court of Appeals for the Fourth Circuit. In the case, the primary challenge of the Defendant-Appellants is whether the district court erred in denying defendants’ motions to suppress Facebook evidence where the defendants asserted that the search warrants authorizing law enforcement to seize and review the contents of their Facebook accounts for lengthy periods of time (and in one case without any temporal limitation whatsoever) were fatally overbroad, contravening the particularity requirement of the Fourth Amendment. The opening brief can be found here.
• In December 2023, Kim Stover and Joseph King filed an opening brief in the Virginia Court of Appeals in the matter of Liam Bates v. Commonwealth. The opening brief can be found here. The brief raises four substantive assignments of error:
  • I. The trial court erred in excluding D.A.’s testimony of W.M.’s same sex attraction because such evidence demonstrated that W.M. had a motive to fabricate the allegations against Appellant, which is admissible under the Rape Shield statute, Va. Code § 18.2-67.7(B), such evidence rebutted evidence of the complainant witness’s prior sexual conduct introduced by the prosecution, which is admissible under the Rape Shield statute, Va. Code § 18.2-67.7(A)(3) and precluding such evidence deprived the Appellant of his constitutional rights to cross-examine and confront the witnesses against him in violation of the Sixth Amendment and to put forth a complete defense in violation of the Due Process Clause of the Fourteenth Amendment. 
  • II. The trial court erred in finding that the Alex Gerber Text Message Exhibit did not open the door to evidence of W.M.’s same sex attraction, depriving the Appellant of his statutory right to admit evidence regarding W.M.’s motive to fabricate the allegations against Appellant, Va. Code § 18.2-67.7(B), and his constitutional rights to cross-examine and confront the witnesses against him in violation of the Sixth Amendment and to put forth a complete defense in violation of the Due Process Clause of the Fourteenth Amendment where: 1) the exhibit satisfied every element the trial court stated needed to be met in order for the door to be opened to evidence of “homosexuality”, 2) the Commonwealth entered the exhibit through its own witness, 3) the text message stated that W.M. was heterosexual, and 4) further stated that W.M.’s heterosexuality was a reason to doubt that he consented to sexual activity. 
  • III. The trial court erred in granting the Commonwealth’s requested Attempted Sodomy instruction where Attempted Sodomy is not a lesser-included offense of Sodomy because Attempted Sodomy requires a higher mens rea element than that which is required to prove the completed crime of Sodomy and violated the Appellant’s constitutional and statutory right under Va. Code § 19.2-217 to a Grand Jury. R. 321-27.
  • IV. The trial court erred in denying the motion to set aside the verdict as to the sufficiency of the evidence for the Attempted Sodomy count because no rational trier of fact could have found beyond a reasonable doubt from the evidence that Appellant harbored the specific intent to penetrate W.M.’s anus. 
     
• In October 2022, Sean Sherlock and Joseph King won a motion to set aside a jury verdict in a felony sexual assault matter in a Northern Virginia Circuit Court. The court set aside the verdict and ordered a new trial due to a fundamental irregularity that occurred during deliberations. During deliberations, a juror was disqualified and replaced with an alternate juror. The alternate juror had been released after the guilt phase. While this was not irregular in itself, the juror, prior to being released, had not received the court’s complete instructions, had not been admonished by the court to not discuss the case, the juror was not re-sworn prior to re-joining the jury, and jury deliberations were not restarted anew.
• In August 2022, Joseph King obtained the dismissal of a 1991 grand larceny charge in a Virginia district court. The more than 30 year old matter had been  closed and the underlying warrant purged as long as two decades ago, leaving the case without any final disposition and impacting the client’s criminal record.
•  In August 2022, Joseph King succeeded in vacating and dismissing a 2005 criminal conviction on behalf of client due to a Virginia district court’s lack of subject matter jurisdiction. The client, a juvenile at the of the allegations, had been incorrectly charged and convicted as an adult.
• In July 2022, KCPM successfully expunged three felony counts in a Northern Virginia Circuit Court on behalf of a client. Two of the matters had been amended to misdemeanors to which the client had pled guilty. The original felony charges were subject to expungement because the misdemeanors were not lesser included offenses.
• In August, 2021, Joseph King obtained an order in a Virginia district court larceny matter that resulted in reducing the client’s sentence to conform with the petty offense exception of the U.S. Immigration and Nationality Act found in 8 U.S. Code 1982 to mitigate immigration consequences resulting from the conviction.
• On January 4, 2021, Joseph King and Lauren LeBourgeois filed a petition for a writ of certiorari in the United States Supreme Court to the Virginia Supreme Court seeking review of a client’s murder conviction.  The issues presented were 1) Does the Confrontation Clause allow a non-victim child witness to testify against his father via two-way closed circuit television when the witness cannot see his father and does not know that his father is on trial for murder?; and 2) Given that Crawford v. Washington, 541 U.S. 36 (2004), removed the underpinnings of Maryland v. Craig, 497 U.S. 836 (1990), should Craig be overruled? The petition can be found here. The petition received notice from the popular SCOTUS blog as a petition to watch, however, the Court ultimately denied the petition.
• On June 24, 2020, a judge in the United States District Court for the Eastern District of Virginia granted a motion for compassionate release filed on behalf of an indigent client due to the COVID-19 pandemic.  The motion was granted over the government’s opposition.  The client, who is elderly with underlying health conditions, was serving a 30-month sentence for a non-violent drug offense after being sentenced in February 2020.   The endeavor to release the client was a team effort involving the firm’s office manager, a private investigator, a close friend of the client and family in California, U.S. Probation, and firm attorneys. Joseph King represented the client on the motion for compassionate pro bono. 
•  On January 7, 2020, the Fourth Circuit vacated and remanded the United States District Court for the Eastern District of Virginia’s decision dismissing a 28 U.S.C. § 2255 motion (habeas motion) in the matter of United States v. Dixon (4th Cir. No. 16-7752)(Jan. 7, 2020).  In his 2255 motion, Dixon had challenged his firearm conviction under 18 U.S.C. § 924(c) (for possessing a firearm in furtherance of a crime of violence where the underlying offense was conspiracy to commit Hobbs Act robbery) as void based on Johnson v. United States, 135 S. Ct. 2551 (2015).  That is, Dixon contended that his firearm conviction was void because Johnson v. United States, 135 S. Ct. 2551 (2015), retroactively invalidated § 924(c)(3)(B), that statute’s “residual clause,” as unconstitutionally vague. The Fourth Circuit held: “In light of United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that residual clause of § 924(c) is unconstitutionally vague); United States v. Simms, 914 F.3d 229, 232-34 (4th Cir. 2019) (holding that conspiracy to commit Hobbs Act robbery is not a crime of violence under the force clause of § 924(c)), we grant a certificate of appealability and vacate the district court’s order.”  Joseph King represented Mr. Dixon in both the Fourth Circuit and Eastern District of Virginia.
• On September 30, 2019, the matter of Adkins v. Commonwealth resolved as manslaughter in the Alexandria Circuit Court after the Virginia Supreme Court reversed his murder conviction and 43-year prison sentence.  Mr. Adkins will serve 8 years for manslaughter and an associated gun charge.  See Rachel Weiner, Alexandria Murder Conviction Changed to Manslaughter, Washington Post, October 1, 2019.  Joseph King and Lauren LeBourgeois represented Mr. Adkins in the Virginia Supreme Court. Firm lawyers also represented Mr. Adkins in his original jury trial.
• On August 13, 2019, the Virginia Court of Appeals affirmed a client’s first degree murder conviction in the matter of Dosky v. Commonwealth, which decision was appealed to the Virginia Supreme Court.  The petition for appeal to the Virginia Supreme Court, which was ultimately denied, can be found here.
• On March 28, 2019, the Virginia Supreme Court reversed Appellant’s murder and firearm convictions and a 43 year prison sentence in the matter of Adkins v. Commonwealth.  Joseph King and Lauren LeBourgeois represented the Appellant on appeal.
• On March 8, 2019, the Virginia Court of Appeals awarded an appeal in Anthony Terry v. Commonwealth, a drug conspiracy and distribution matter.  Emily Beckman represented the Appellant. The Virginia Court of Appeals ultimately affirmed Terry’s conviction.
•  On February 28, 2019, Joseph King argued the murder case of Adkins v. Commonwealth before the Virginia Supreme Court.  Joseph King and Lauren LeBourgeois represent the Appellant.
• On January 16, 2019, the Virginia Court of Appeals awarded an appeal on seven assignments of error in the first degree murder case of Dosky v. Commonwealth.  Joseph King represents the Appellant.
• On October 2, 2018, the Virginia Supreme Court awarded an appeal on two assignments of error in the murder case ofAdkins v. Commonwealth. Joseph King and Lauren LeBourgeois represent the Appellant.

Other notable appeals and post-conviction matters handled by or involving firm lawyers include:

• Brent David Taylor v. Commonwealth, No. 1031-14-4 (Va. Ct. App. Sept. 13, 2016)(reversing appellant’s convictions for rape and aggravated sexual battery and remanding for new trial where trial court erred in failing to suppress appellant’s statement as gained in violation of 5th Amendment rights under Miranda v. Arizona).
• United States v. William Andrew Clarke, 842 F.3d 288 (4th Cir. 2016)(upholding trial court’s denial of appellant’s motion to suppress, finding trial court erred in failing to provide defense counsel notice of instructions to be provided to jury but error did not prejudice appellant, finding trial court’s jury instruction on attempted enticement correct statement of the law, finding evidence sufficient)(upholding appellant’s conviction).
• Motion to Reconsider granted by Prince William County General District Court to amend defendant’s marijuana conviction to non-drug offense due to immigration consequences flowing from marijuana conviction. Prince William General District Court, 2013. Joseph King represented the client.
• Petition for writ of habeas corpus granted by Fairfax Circuit Court, vacating petitioner’s felony possession with intent to distribute marijuana conviction, where trial counsel failed to advise the petitioner of the immigration consequences of his guilty plea. Fairfax Circuit Court, 2013.        
• Motion to Set Aside the Verdict granted in rape case, winning defendant a new trial after the jury recommended a 28 year sentence, based in significant part on new evidence. The prosecution soon after dismissed the charges. Brad Haywood of Sheldon, Flood & Haywood and Joseph King represented the Defendant. Alexandria Circuit Court, September 2012.
• Little v. Commonwealth, 59 Va. App. 725 (2012)(affirming trial court’s ruling that evidence of value of stolen items exceeded statutorily required limit).
• Briscoe v. Virginia, 559 U.S. 32 (2010)(vacating Briscoe’s convictions for possession with intent to distribute cocaine and unlawful transportation of cocaine into the Commonwealth with the intent to distribute and remanding to the Virginia Supreme Court for further consideration in light of Melendez-Diaz v. Massachuessetts).
• Cypress/Briscoe v. Commonwealth, 280 Va. 305 (2010)(on remand from the United States Supreme Court, holding Virginia’s former statutory scheme governing the introduction of lab reports into evidence to violate Confrontation Clause of the Sixth Amendment in light of Melendez-Diaz v. Massachusetts; upholding appellant’s conviction on harmless error grounds).
• Mervin-Frazier v. Commonwealth, No. 2114-08-4 (Va. Ct. App. Apr. 6, 2010) (reversing appellant’s convictions on grounds that defendant’s statements were admitted into evidence in violation of Miranda v. Arizona).
• Aguilar v. Commonwealth, 280 Va. 322 (Va. 2010)(on remand from the United States Supreme Court, finding no confrontation clause error where prosecution’s failure to call two forensic scientists, who played preliminary roles in a DNA analysis, did not violate Confrontation Clause because they did not author the DNA certificates of analysis at issue or bear testimony against the appellant).
•  Mwangi v. Commonwealth, 277 Va. 393 (2009)(reversing appellant’s felony DUI conviction where trial court erred in allowing unsigned purported prior DUI conviction into evidence).

(CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE AND PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE)

DIRECT APPEALS AND APPELLATE ADVOCACY