Kenrick Maynard v. Government of the Virgin Islands, Governor Albert Bryan is his official capacity, Ariel M. Smith, Attorney General, Bureau of Corrections Director Wynnie Testamark

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

KENRICK MAYNARD,

Petitioner,
SX-2018-MC-00066

V.
PETITION FOR WRIT OF

HABEAS CORPUS
GOVERNMENT OF THE VIRGIN

ISLANDS, GOVERNOR ALBERT BRYAN

in his official capacity, ARIEL M. SMITH,

ATTORNEY GENERAL in her official
1
capacity, BUREAU OF CORRECTIONS
2023 VI Super 36
DIRECTOR WYNNIE TESTAMARK in her

official capacity, CITRUS COUNTY

DETENTION CENTER WARDEN MIKE

QUINN in his official capacity,

Res ondents.

MEMORANDUM OPINION

,r I THIS MA TIER is before the Court on the Writ of Habeas Corpus issued October 29, 2020,

and Respondents' Return, filed December 1 1 , 2020. By the Writ, the Court found that Petitioner

had stated a prima facie case for relief in his Petition for Writ of Habeas Corpus, filed August 7,

2018, and that his claims alleging Brady violations and ineffective assistance of trial counsel were

not barred as a matter oflaw. By Order entered February 1 1 , 2021, Petitioner's opportunity to file

a traverse was extended for 21 days. To date, Petitioner has not filed a traverse. On August 9, 2022,

a hearing was held and additional evidence in the form of sworn testimony and affidavits were

presented to the Court. At the hearing, Petitioner was given 2 1 days following completion of the

hearing transcript to file a supplemental brief, Respondents were given 21 days to respond, and

Petitioner was given 7 days to reply. The hearing transcript was completed on February 1 5 , 2023.

By Order entered February 15, 2023, both parties were given 21 days to file supplemental briefing.

1
Pursuant to V.I. R. Civ. P. 25(d), when a public officer named as a party acting in an official capacity

ceases to hold office while the action is pending, the officer's successor is automatically substituted as a

party. Such is the case here and the caption is amended accordingly.
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Both briefs were filed on June 2 1 , 2023. Because the Court finds that Petitioner was deprived of

his constitutionally protected right to effective assistance of counsel at trial, relief will be granted.

STANDARD OF REVIEW

,r 2 "Any person who believes he or she is unlawfully imprisoned or detained in custody,

confined under unlawful conditions, or otherwise unlawfully restrained of his or her liberty, may

file a petition for a writ of habeas corpus to seek review of the legality of that imprisonment or

detention." V.I. H.C.R. 2(a). Petitioners may use a writ of habeas corpus to seek redress of

constitutional violations. Rivera-Moreno v. Gov't o
f the V.l., 61 V.1. 279, 297 (V.1. 2014). The

presumption of innocence does not apply to habeas proceedings, and the burden is on the petitioner

to prove their case. Fahie v. Gov't o
f the V.I., 73 V.1. 443,452 (V.I. 2020). "The court must issue

a writ of habeas corpus if the petitioner has alleged, prima facie, grounds showing entitlement to

relief and the claims are not legally barred." V.I. H.C.R. 2(d)(l).

3 The Virgin Islands Supreme Court has held that direct appeals of trial court convictions

conducted by the Appellate Division of the District Court and the Third Circuit that consider and

decide the same claim or claims subsequently raised in a habeas petition "will typically not result

in a procedural bar [of that claim in the habeas proceeding] if the claim involves a question of

law." Rodriguez v. Bureau of Corr., 70 V.I. 924, 938 n.9 (V.I. 2019); see also Rivera-Moreno, 61

V .I. at 303 (holding that a habeas petition can raise issues that were, or could have been, raised on

direct appeal to the Appellate Division or the Third Circuit, provided that the issues involve a

question of law rather than fact). However, "when a prisoner files a writ of habeas corpus in the

Virgin Islands alleging claims already reviewed by another competent court, including a federal

court, the local court may, in its discretion, consider that ruling as a basis to deny improper

successive review." Rodriguez, 70 V.I. at 938-39.

4 Important to the claims for relief currently pending before this Court, Brady violations are

questions oflaw. Mosby v. Mullgrav, 65 V.I. 2 6 1 , 2 6 8 (V.I. 2016). Further, ineffective assistance

of counsel claims "will rarely be procedurally barred in a habeas proceeding, s i n c e . . . ' a claim of

ineffective assistance of counsel is not appropriately reviewed for the first time on direct appeal."'

f the V.I., 64 V.1. 367, 381 (V.I. 2016) (quoting Codrington v. People, 57 V.I.
Blyden v. Gov't o

176, 1 9 1 (VJ. 2012)). Accordingly, none of Petitioner's claims herein is procedurally barred.
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5 "A petitioner may be awarded a discharge - o r another form of redress, such as a new

sentencing hearing, that remedies the violation alleged - i f any of the seven conditions set forth in

2
5 V.I.C. § 1 3 1 4 are met, or if relief is warranted to remedy a constitutional or statutory violation,

even if the right to that remedy is not expressly set forth in a statute." V.I. H.C.R. 2(b)(2).

3
BACKGROUND

I. The Underlying Case

6 On July 4, 1999, Petitioner Kenrick Maynard and his brother, Ricky Kanasha, were

involved in a violent altercation with Leslie Hyman and his cousin, Kimba George, at festival

activities during Carnival on St. John. Three weeks later, on July 26, 1999, Leslie Hyman was shot

several times in the area of Savan on St. Thomas. On the night of the shooting, Leslie informed

4
police that he did not know who had shot him. However, at Maynard's trial two years later, Leslie

testified that Maynard was responsible for the shooting.

7 Two days later, on July 28, 1999, Leslie's brother, Adolph Hyman, Jr., was walking in

5
Savan with his father, Adolph Hyman, Sr., and Hyman, Sr.'s longtime girlfriend, Maria Weeks.

Hyman, Jr. and Weeks both testified at trial that Maynard approached them and began shooting at

2
5 V.I.C. § 1 3 1 4 provides:

If it appears on the return of the writ that the prisoner is in custody by virtue of process from any

court or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to

the restriction of section 1 3 1 3 of this title:

(I) When the jurisdiction of such court or officer has been exceeded.

(2) When the imprisonment was at first lawful, yet by some act, omission, or event which has taken

place afterwards, the party has become entitled to a discharge.

(3) When the process is defective in some matter of substance required by law rendering such

process void.

(4) When the process, though proper in form, has been issued in a case not allowed by law.

(5) When the person having custody of the prisoner is not the person allowed by law to detain him.

(6) Where the process is not authorized by any order, judgment, or decree of any court, nor by any

provision of law.

(7) Where a party has been committed on a criminal charge without reasonable or probable cause.
3
Unless cited otherwise, background information is distilled from the opinions of the Appellate Division

of the District Court of the Virgin Islands in Maynard v. Gov't o
f the Virgin Islands, 5 1 V.I. 744 (D.V.I.

App. 2009) and the United States Court of Appeals for the Third Circuit in Maynard v. Gov't o
f the Virgin

Islands, 392 Fed. Appx. l05 (3d Cir. 2010).

" Maynard was tried for the shooting of Leslie Hyman and the subsequent murder of Adolph Hyman, Sr. in

a single proceeding. (Terr. Ct. Crim. No. ST-F400/2000).

5
Weeks is also sometimes described as Hyman, Sr.'s common law wife.
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Hyman, Sr., and that Hyman, Jr. and Weeks ran away. Weeks testified that she attempted to hide

behind a wall, from where she saw Maynard shoot Hyman, Sr. several times while Hyman, Sr.

was face down on the ground. Hyman, Sr. died from his injuries. A warrant for Maynard's arrest

was issued August 5, 1999, but he was not immediately arrested.

18 Five months later, in the early morning hours of January 1 , 2000, the Virgin Islands Police

Department (VIPD") arrested six individuals in connection with gunshots fired near Hospital

Ground on St. Thomas. In searching the surrounding area, officers discovered spent cartridges and

two firearms - an MP-45 and an AK-47. The case against those individuals charged with

possession of the AK-4 7 was eventually dismissed for lack of evidence. The firearms found at

Hospital Ground, as well as the casings recovered from the scene of Hyman, Sr. 's shooting were

submitted to the Federal Bureau oflnvestigation for forensic testing. That testing disclosed that at

least some of the bullets that killed Hyman, Sr. five months earlier had been discharged from the

6
AK-47 discovered at Hospital Ground.

19 Pursuant to the August 5, 1999 warrant, on October 3, 2000, a VIPD forensic investigator

7
traveled to Atlanta, Georgia, where Maynard was incarcerated under the name Samuel E. Blyden,

and escorted Maynard back to the Virgin Islands. In May 2001, the Government of the Virgin

Islands charged Maynard with five offenses arising out of the above events in Criminal No. ST­

F400/2000. The first three counts charged offenses related to the July 26, 1999 shooting of Leslie

8
Hyman, and Counts Four and Five charged offenses related to the July 28, 1999 shooting death

of Adolph Hyman, Sr."

10 Trial began on September 24, 2001, lasting a day and a half. Maynard was acquitted by the

jury of Counts One, Two, and Three, and convicted of Counts Four and Five. Maynard's

6
See 392 Fed. Appx. at 108 n.5: "A firearms examiner for the Federal Bureau oflnvestigation testified that

one of the firearms was technically a Mac-90, which is a civilian version of the better-known AK-47.

However, the parties described the gun as an AK-47 at trial and in briefing....We adopt the parties'

convention of referring to the weapon as an AK-47, even though that description appears to be technically

incorrect." Similarly, throughout this Opinion, references are to an AK-47.
7
It is unclear from the record the circumstances under which VIPD learned that Maynard was incarcerated

in Georgia under an assumed name.

8
Count One of the Information charged first-degree assault, Count Two charged third-degree assault, and

Count Three charged unauthorized possession of a firearm.
9
Count Four charged first-degree murder and Count Five charged unauthorized possession of a firearm.
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subsequent motion for new trial was denied, and he was sentenced on November 13, 2001 to life

imprisonment on the first-degree murder charge, and three years on the unauthorized possession

of a firearm charge, to be served concurrently. Judgment and Commitment, Criminal No. ST­

F400/2000 (Nov. 2 1 , 2001).

JI. Prior Appellate and Habeas Review

,r 1 1 On November 21, 2001, Maynard appealed his Territorial Court conviction to the

Appellate Division of the District Court of the Virgin Islands," raising four issues for review.'

On April 17, 2009, the Appellate Division issued its opinion affirming Maynard's conviction on

both counts. Maynard appealed that decision to the Third Circuit Court of Appeals, contending

that the Government had violated Brady v. Maryland by failing to disclose ( I ) the identities of the

six individuals arrested on January I , 2000 for possession of the AK-47, and (2) Maria Weeks'

drug treatment history. On August 25, 2010, the Third Circuit affirmed Maynard's conviction on

both counts.

,r 12 In 2 0 1 5 , Petitioner Maynard filed a prose "Motion for Extraordinary Writ of Habeas

Corpus" in the Superior Court of the Virgin Islands, Division of St. Thomas and St. John, Case

No. ST-20!5-MC-00070. Maynard argued that he was not attempting to re-litigate the issues

presented to the Appellate Division and the Third Circuit, but rather sought "to acquire clarification

of distinct [sic] decision of said mentioned courts." The Superior Court treated Maynard's Motion

as a Petition for Writ of Habeas Corpus, which it denied, holding that Petitioner sought to

"relitigate issues already argued before the Appellate Division and Third Circuit, and...improperly

assert[ed] a Brady violation." Order, 5 (May 2, 2016).

10
In 2004, the Virgin Islands Legislature established the Supreme Court of the Virgin Islands as the highest

court in the Virgin Islands, which assumed its appellate jurisdiction on January 29, 2007, prior to which an

initial appeal of right from the Territorial Court could be brought in the Appellate Division of the District

Court, followed by a second appeal of right to the Third Circuit Court of Appeals. Effective January I,

2005, the name of the Territorial Court changed to the Superior Court of the Virgin Islands. See Act No.

6687, § l(b), amending 4 V.I.C. § 2(a) (Oct. 29, 2004).

"Whether the trial court erred by not dismissing the charges as a result of alleged Brady violations; (2)

whether the trial court erred by allowing the Government's expert witness to testify about matters that were

not disclosed to the defense before trial; (3) whether the trial court erred by not severing the several offenses

with which Maynard was charged; and (4) whether alleged prosecutorial misconduct during closing

arguments warrants a reversal of Maynard's conviction." Maynard, 5 1 V.I. at 754.
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III. The Instant Petition

,r 13 On August 7, 20 18, through his present attorney, Maynard filed the instant Petition for

Writ of Habeas Corpus, alleging violations of Brady v. Maryland and ineffective assistance of

counsel. Attached to the Petition was the Affidavit of Nyjah Adams ("Adams Affidavit"), one of

the six individuals arrested on January I, 2000 for possession of the AK-4 7 discovered at Hospital

Ground. The Adams Affidavit provided potentially exculpatory information concerning the

circumstances of Hyman, Sr.'s murder, indicating that Adams knew Hyman, Sr., and that on the

night of Hyman, Sr.'s murder, Adams witnessed Hyman, Jr. get into an altercation with someone

he knew only as "Hamster." Adams Affidavit, ,r,r 8-9 (Jul. 3 1 , 2018). Adams further stated that

"[a]fter the altercation involving Hamster and Mr. Hyman, Jr., Hamster was upset, carrying the

AK-47, he left in an angry manner and moments later I heard a discharging of shots. Mr. Maynard

was not present when Hamster left with the AK-47." Id. at 1 1 .

,r 14 On August 30, 2019, the Court entered an Order requiring an informal response from

Respondents within 1 5 days to address Maynard's ineffective assistance of counsel claims, as well

as "whether Petitioner may present in this proceeding his allegations of violations of Brady v.

Maryland, or whether those claims are precluded by having been addressed on direct appeal and

his prior Habeas Corpus petition." Order for Informal Response, 2 (Aug. 30, 2019); see V.I. H.C.R.

2(c). On March 17, 2020, Maynard filed a Motion to Deem Facts Admitted for purposes of issuing

the Writ and further proceedings, based on the Government's failure to respond to the Court's

August 30, 2 0 1 9 Order. On June 17, 2020, the Court entered its Second Order Requiring Informal

Response, ordering Respondents to respond to the allegations in the Petition within 1 5 days.

15 On July 14, 2020, Respondents submitted their Informal Response, arguing that Petitioner

failed to raise a plausible ineffective assistance of counsel claim "given that the totality of the

evidence supports his conviction," and that he could not relitigate the Brady v. Maryland

allegations previously raised on appeal. Informal Response, 9 (Jul. 14, 2020).

16 This Court found that Maynard had stated a prima facie case for relief, granted his Petition,

12
and issued the Writ of Habeas Corpus on October 29, 2020. On December 1 1 , 2020, Respondents

12
The Court's Order issuing the Writ also deferred ruling on Petitioner's March 1 7 , 2020 Motion to Deem

Facts Admitted. As that Motion sought "to have the factual basis deemed admitted for purposes of issuing
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filed their Return pursuant to V.l. H.C.R. 2(e). Despite the Court's Order entered January 29, 2021

extending the time within which Maynard might file a Traverse, he did not do so.

,r 1 7 On June 2, 2021, the Court scheduled an Evidentiary Hearing to be held July 22, 2021 to

address the factual issues in dispute, pursuant to V.I. H.C.R. 2(g). On July 9, 2021, Respondents

filed their Motion to Strike and Objection to the Affidavit of Nyjah Adams ("Motion to Strike").

Respondents argued that the Adams Affidavit constituted inadmissible hearsay, obtained nearly

eighteen years after Maynard's conviction without the benefit of cross-examination. Motion to

Strike, ,r,r 2, 4, 8 (Jul. 9, 2021 ). Maynard did not file a substantive response; instead, his counsel

moved on July 14, 2021 for a continuance of the evidentiary hearing, which was granted by Order

entered July 16, 2021. The hearing was rescheduled for December 8, 2021, but on the day before,

Petitioner's counsel filed an "Emergency Motion to Continue," opposed by Respondents. The

Court again granted the continuance, but imposed monetary sanctions on Petitioner's counsel for

failure to comply with procedural rules.

18 On January 28, 2022, without response from Maynard, the Court denied Respondents'

Motion to Strike, given the stage of the proceeding and the judicial principle that motions to strike

are strongly disfavored. The Court held that Respondents' concerns with the Adams Affidavit

would be more appropriately addressed at the evidentiary hearing.

19 The evidentiary hearing was held August 9, 2022. Petitioner called Nyjah Adams, who

appeared remotely from St. Kitts. The Government objected on the record to the Court allowing

Adams to testify, arguing that "[a]uthenticating this witness and finding him competent . . . requires

more than simply him coming on a screen and saying his name is Nyjah Adams and showing [his

passport] from a distance of hundreds of miles to represent that fact." Transcript of August 9, 2022

Hearing, 1 1 . After engaging in additional questioning and noting the Government's objection, the

Court permitted Adams to testify. When Petitioner's counsel moved to have the Adams Affidavit

offered into evidence the Government again objected, stating that the authenticating attorney

the writ of habeas corpus and for further proceedings," and as proceedings have concluded, the Writ has

been issued, and relief will be granted herein, that Motion is denied as moot.
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"provided an affidavit to the Respondent stating that she has no independent recollection or records

13
of [the Adams] Affidavit. " Id. at 36.

20 The Court accepted the Adams Affidavit as Exhibit I over Respondents' objection,' and

Adams proceeded to testify to the substance. Id at 37. He described the individual known as

Hamster as someone who was often seen with an AK-47, which was "his signature item that people

was [sic] fear him for." Id at 44-45. Adams went on to describe his recollection of July 28, 1999,

the night that Hyman, Sr. was killed, stating:

Hamster showed up again, yeah. I don't know that was like the second time I saw him on

that night. And he showed up, and this time he was actually like kind of ramping like he

upset about this person. That same name you call, I think, this Adolph person. That is where

I vaguely recall that name from, yes. And then he was like, yeah, this person owe him

money or some shit. And then he was about to like, yeah, go off. And then he scale off and

went. And then a little few minutes later, I don't know about four or five minutes to ten

minutes, yeah, we end up heard some gun shots. And then, yeah, that was real loud. I say

to myself, that can't be no pistol.

Id at 46-47.

$21 Although he couldn't say for certain whether the AK-47 he saw Hamster possess on that

night was the same weapon which led to his January I , 2000 arrest, Adams noted regarding the

AK-47 that "ain't much people had stuff like that . . .I doubt it had two of those on the streets at

those time." Id at 5 I. He further stated that "if it was a pistol, yeah, I think everyone would have

know [sic]. The kind of loudness of the gunshots I know it wasn't a pistol." Id at 59. In response

to Respondents' cross-examination as to whether he "ha[s] any expertise in firearms," Adams

responded that "I am an expert in hearing the sound that they sound different. The sound wake you

up every night and every morning the area where we live." Id at 108-09.

,r 22 Following the testimony of Adams, Petitioner's counsel called Maynard to the stand.

Maynard testified that prior to trial, he did not know the identity of the six individuals arrested for

13
On cross-examination, Respondents introduced the Affidavit of Angelina Gracy Sookoo-Bobb, an

attorney licensed in St. Kitts, indicating that she was working at the law office where Adams executed his

Affidavit, which bears her signature and notary seal. The Affidavit stated that she did not recall ever meeting

Adams or notarizing his Affidavit, and thus at the hearing could not authenticate it.

'' Despite the Court's admission of the Adams Affidavit and Adams' testimony, the Court herein rules

against Petitioner on his prayer for relief purportedly supported by the Adams Affidavit, and grants relief

on alternate grounds. As such, Respondents are not prejudiced by the admission of the Adams Affidavit.
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possession of the AK-47, and that he did not know their names until the middle of trial. Id. at 123.

He further testified that the first time he saw trial counsel was the day he hired him about six

months prior to trial, and that the second time was the day before trial, when "maybe were [sic]

half an hour we spend together." Id. at 125, 128, 13 I. Maynard also stated that he asked trial

counsel to locate witnesses for the trial, but that to his knowledge counsel had not done so. Id. at

127. Maynard testified that he was not with Hamster on the night of Hyman, Sr.'s murder, and that

he did not know him personally but that "St. Thomas is very small . . . we does [sic] frequent around

the same areas." Id. at 130.

23 After the hearing, the Court took the matter under advisement, permitting the parties the

opportunity to file briefs following receipt of the hearing transcript. Both post-hearing briefs were

filed June 2 1 , 2023. Petitioner's Supplemental Brief reiterated his arguments regarding both the

alleged violations of Brady v. Maryland and ineffective assistance of counsel, noting his prayer

for relief seeking a discharge from his sentence or a new trial. Respondents' Brief reiterated the

arguments made in the Informal Response and Respondents' Return, arguing that Maynard failed

to carry his burden of proof regarding both his Brady and ineffective assistance of counsel claims.

LEGAL STANDARD

I. Brady Violation

24 The Due Process Clause of the Fifth and Fourteenth Amendments to the United States

Constitution, applicable to the Virgin Islands through Section 3 of the Revised Organic Act of

1954,' require the prosecution to disclose certain evidence to the accused. In Brady v. Maryland,

the United States Supreme Court held that "the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material to guilt

or punishment, regardless of the good faith or bad faith of the prosecution." Ponce v. People, 72

V.I. 828, 9 1 9 (V.I. 2020) (Swan, J., dissenting in part) (quoting Brady v. Maryland, 373 U.S. 83,

87 (1963)). To prevail on a Brady claim, a defendant must show that the evidence was "(1)

15
Revised Organic Act of 1954, § 3; 48 U.S.C. § 1 5 6 1 ; see also Balboni v. Ranger Am. o
f the V.I., Inc., 70

V.I. 1048, 1056 (V.1. 2019) ("Although section 3 incorporates the federal equal protection and due process

clauses by reference in addition to its own free-standing equal protection and due process clauses that are

unique to the Virgin Islands Bill of Rights, courts have indicated that these provisions serve as separate

limitations on the power of the Virgin Islands Government.").
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suppressed, (2) favorable, and (3) material to the defense." People v. Ward, 55 V.I. 829, 842 (V.I.

2 0 1 1 ) (quoting Bowry v. People, 52 VJ. 264,274 (VJ. 2009)).

25 Both willful and inadvertent suppression of evidence by the prosecution may qualify as

suppression under the first Brady prong. Strickler v. Greene, 527 U.S. 263, 282 (1999). "The

government's Brady obligations attach to all exculpatory evidence in the government's actual or

constructive possession." Maynard, 392 Fed. Appx. at 113. Further, "the government must

disclose Brady material sufficiently in advance of trial to enable the defendant to use the evidence

in a meaningful fashion." Id. at 1 1 4 . However, "the government is not obliged under Brady to

furnish a defendant with information which he already has or, with any reasonable diligence, he

can obtain himself." Ward, 55 VJ. at 845 (quoting United States v. Starusko, 729 F.3d 256, 262

(3d Cir. 1984)).

$26 Regarding the second prong, "[e ]vidence that is favorable to the accused includes

exculpatory evidence and evidence that impeaches a prosecution witness, regardless of whether

the evidence has been requested." People v. Corraspe, 2 0 1 8 V J . LEXIS 10, *3 (VJ. Super. Jan.

3 1 , 2018) (citing United States v. Bagley, 473 U.S. 667,675 {1985)). "The prosecution must also

disclose evidence that could be used to impeach a government witness, especially when the

witness' testimony is an important part of the prosecution's case." Id. (citing Giglio v. United

States, 405 U.S. ISO {1972)).

27 Lastly, a piece of evidence is material to the defense when "there is a reasonable probability

that the outcome would have been different had the evidence been disclosed to the defense."

George v. People, 59 V.I. 368, 378 (VJ. 2013) (internal citations and quotation marks omitted).

"The purpose of Brady is not to require the prosecution to disclose all possibly favorable evidence

to the defense but to make certain that the defendant will not be denied access to evidence which

would insure him a fair trial." Id. (citing Stevens v. People, 55 V.I. 550, 556 (VJ. 2 0 1 1 ) ) . Thus,

"the ultimate inquiry 'is not whether the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence."' Stevens, 55 VJ. at 556 (quoting Kyles v.

Whitley, 5 1 4 U.S. 419, 434 {1995)).
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II. Ineffective Assistance o
f Counsel

128 The right to the effective assistance of competent counsel is guaranteed by the Sixth

Amendment to the United States Constitution. Strickland • Washington, 466 U.S. 668, 684-85

(I 984). The Sixth Amendment applies to the Virgin Islands through Section 3 of the Revised

16
Organic Act of 1954. To prevail on an ineffective assistance of counsel claim, a defendant must

demonstrate that (I) trial counsel's "performance fell below an objective standard of

reasonableness," and (2) that counsel's "deficient performance prejudiced [the defendant],

resulting in an unreliable or fundamentally unfair outcome to the proceeding." Burke v. Prosper,

70 V.I. 866,874 (V.1. 2019) (internal citations omitted).

129 To satisfy the first prong, a petitioner must overcome the presumption that trial counsel's

performance was part of sound trial strategy. Francis v. People, 57 V.I. 2 0 1 , 2 3 9 (V.I. 2012)

("Courts generally afford much deference to the tactical decisions of trial counsel even when such

decisions prove unsuccessful."). Further, the petitioner "must identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable professional judgment." Ibrahim

f the V. I., 2008 V .I. Supreme LEXIS 2 0 , 5 (V .I. Jan. 18, 2008) (quoting Strickland, 466
v. Gov't o

U.S. at 690).

,r 30 The second prong requires a petitioner to demonstrate "a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been different."

Corraspe v. People, 53 V.I. 470, 479-80 (V.I 2010) (internal citation omitted). A reasonable

probability of such prejudice is one "sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694. The question, then, is whether "absent the errors, the factfinder would

have had a reasonable doubt respecting guilt." Id. at 695. In answering this question, the court

must "consider the totality of evidence." Id.

DISCUSSION

I. Facts Giving Rise to Claims

,r 3 1 Maynard claims violations of Brady v. Maryland and ineffective assistance of counsel.

Both require review of facts from his trial regarding the identity of the six January I , 2000 arrestees

" Revised Organic Act of 1954, $ 3; 48 U.S.C. $ 1 5 6 1 .
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and prosecution witness Weeks' history of drug use. Those facts are reviewed here, followed by

legal analysis.

a. Identity of
the Six Arrestees

,r 32 On January 1 , 2000, six individuals were arrested and charged with possession of the same

AK-47 that Maynard was purported to have used to kill Adolph Hyman, Sr. five months earlier.

The case against the six arrestees was eventually dropped for lack of evidence. Forensic testing by

the FBI after the January 1 , 2000 arrests determined that at least ten of the sixteen shell casings

collected at the Hyman, Sr. murder scene were fired from the same AK-47. During pretrial

discovery, the prosecution handed over several documents that identified those arrestees using

arrest numbers rather than their names.

33 At the final pretrial conference on September 10, 2001, two weeks prior to the September

24, 2001 jury selection and trial, Maynard's attorney requested the names of the January 1

arrestees. In response, the prosecutor "represented that the arrestees' names were in a document

listing property seized during the arrest... [that] had already been provided to the defense. He said

that the government 'ha[d] no further information' and that defense counsel was 'asking for blood

out of a rock."' Maynard, 392 Fed. Appx. at 109. On appeal, the Government conceded that the

identities of the arrestees did not, in fact, appear in the document that had been provided to the

defense.

34 At the start of trial defense counsel renewed this disclosure request. The prosecutor

responded that he had provided counsel with all of the documents he had concerning the weapon,

but that none of those documents contained the identity of the arrestees. That statement was

"manifestly inconsistent with the prosecutor's statement before trial that the names had already

been provided to the defense in an inventory document." Id at 109 n.6.

35 During the Government's case in chief at trial, the prosecutor called to the stand Officer

Miguel Perez, who had investigated the January 1 , 2000 shooting incident. During his testimony,

the government sought to admit a document that was part of the chain of custody for the AK-4 7

that did contain the names of the six January 1 arrestees. When Maynard's counsel objected to

admission of the report due to the Government's lack of disclosure despite multiple pretrial

requests, the prosecutor responded that the chain of custody records in Maynard's file did not
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contain the names, and that the document which did contain the names came from a separate case

17
file. The prosecutor indicated that he had first learned of the existence of that document from an

unidentified individual in the prosecutor's office during the lunch recess.

36 Maynard's counsel moved to dismiss on the basis that the Government's late production

of this information violated his rights under Brady. The prosecution opposed, arguing that the

names were not relevant and that even if the arrestees possessed exculpatory information, Maynard

had suffered no prejudice because defense counsel still had time to investigate, as the prosecution's

case was still ongoing. Despite chastising the prosecution, the trial court denied the motion to

dismiss, indicating that it would reconsider the issue at the close of the Government's case. The

trial judge urged Maynard to investigate any information that the document might furnish before

the close of trial. However, the renewal of Maynard's motion at the close of the Government's

case was again denied because the trial court found that defense counsel "could have investigated

the individuals after the first day of trial and that he was able to encourage jurors to infer that one

of the arrestees was linked to the firearm." Maynard, 392 Fed. Appx. at 109. During closing

argument, Maynard's counsel urged the jury to make just such an inference, reciting to the jury

the names of the six persons arrested for possessing the AK-47, the same weapon used to kill

18
Hyman, Sr.

b. Weeks' History of Drug Use

37 At the final pretrial conference, Maynard's counsel also requested any records in the

Government's possession regarding Weeks' drug use or treatment, information of which the

prosecutor responded that he had no knowledge. Defense counsel requested that the Government

seek such records from the Virgin Islands Department of Health and, two days later, the prosecutor

responded that he had made contact but that without a court order, clinic personnel would not

discuss whether records existed for Weeks. Neither party requested any such court order, and the

prosecutor did not take any other steps to obtain the records.

17
"The record does not identify whether the document appeared in a file associated with the January I

arrests, or with another unidentified case. For our purposes, we note only that, whatever the purpose of the

file, it was clearly related to the seizure of the AK-47 and contained documents associated with the arrestees

being taken into custody." Maynard, 392 Fed. Appx. at 109 n.7.

See infra note 22.
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38 At trial, prior to opening statements, defense counsel renewed his disclosure request for

Department of Health records regarding Weeks' drug treatment, and the prosecutor reiterated that

a court order was needed. Defense counsel then served a subpoena on the Department of Health

demanding production of those records. After Maynard testified in his own defense, his counsel

requested and was granted a continuance to call the Department of Health official who had been

subpoenaed but failed to appear. The trial judge asked if counsel needed the court's assistance in

procuring the witness's attendance, but defense counsel declined the offer and later rested the

defense case without having called the Department of Health witness.

39 The Department complied with the subpoena the next day, but the records did not arrive at

the courthouse until the trial had concluded and the court had closed the evidentiary record and

submitted the case to the jury. Maynard requested that the court reopen the evidence to allow him

to submit the records to the jury, but the court refused. Following the conclusion of the trial but

prior to the hearing on Maynard's motion for new trial, defense counsel was able to obtain the

information he had repeatedly requested yet did not receive prior to resting his case during trial.

,r 40 The Department of Health records received post-trial included a discharge summary noting

that Weeks reported an eleven-year history of crack cocaine use and was characterized by

therapists as "a pathological liar who alters the truth to fit her needs and fantasies." Maynard, 5 1

V.I. at 763. However, the only evidence the jury heard regarding Weeks' drug use came from

Maynard's testimony and from defense counsel asking Weeks about her drug use on cross­

examination."

" Weeks' drug use was featured in the closing arguments of both defense counsel and the prosecutor.

Maynard's counsel argued: "What else do we know about Maria Weeks? She, we submit the evidence is

that she's a crack addict. She bought crack. Mr. Maynard said he saw her."

In its initial closing argument, the prosecutor argued: "How does [Maynard] get the nerve to call that

woman a crackhead? He has the nerve to call that woman, who he had just killed her husband, he is going

to now call her a crackhead. I spit at the idea of him taking that type of revenge out on this family even

further."

In its rebuttal argument, the prosecution doubled down: "And that's the person that we're referring to as

a crackhead. Crackhead. The only person that said Maria Weeks is a crackhead is Kenrick Maynard. That's

a heck of a thing to say about somebody. That's a heck of a thing to call a woman like that. Okay?"

Maynard, 5 1 V.I. at 762-63, n . 1 3 , 14.
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II. Analysis - Brady Violations

141 To prevail on a Brady claim, a petitioner must show that evidence was "(1) suppressed, (2)

favorable, and (3) material to the defense." Bowry, 52 VJ. at 274. Maynard raises two Brady

claims: (a) the prosecution's failure to tum over the identities of the six individuals arrested

January I , 2000; and (b) the prosecution's failure to tum over evidence related to Maria Weeks'

drug use. Petition at ,i,i 26-34, 44-48. Respondents contend that Maynard "was not prejudiced by

a purported Brady violation because the Government did not suppress evidence" or, in the

alternative, "even if the Court were to determine that the Government suppressed evidence,

Petitioner has failed to demonstrate that such evidence is favorable and material." Respondents'

Return, 1 1 (Dec. 1 1 , 2020).

a. Identity of the Six Arrestees

42 The record clearly supports the finding that the prosecution suppressed the identities of the

six persons arrested on January I , 2000, charged with possession of the same weapon that had

been used in the July 28, 1999 murder for which Maynard was convicted, satisfying the first prong

of Brady. Brady requires the prosecution to provide to the defendant "all exculpatory evidence in

the government's actual or constructive possession," and a prosecutor must "take the minimal

steps necessary to acquire...information' of which the prosecution should be aware, even ifit lacks

knowledge of the material at the time the defendant requests disclosure." Maynard, 392 Fed. Appx.

at 1 13 (internal citation omitted).

43 Here, the six arrestees were handled by the same police department that investigated the

murder of Hyman Sr., and both matters were referred for prosecution to the Office of the Attorney

General of the Virgin Islands. The Court concurs with the reasoning of the Appellate Division of

the District Court:

The purpose of Brady and its progeny would be seriously undermined if knowledge of

material, exculpatory evidence could not be imputed between two attorneys working for

the same sovereign in the very same office with a relatively small number of attorneys,

simply because one attorney works on criminal matters while the other works on domestic

relations matters.
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Maynard, 5 1 V.I. at 765-66 (internal citations omitted).3

44 The trial judge, the Appellate Division, and the Third Circuit all admonished the

Government's attorney for his conduct and callous disregard of the repeated requests of defense

counsel for the names of the January 1 arrestees, to which Maynard was clearly entitled. Indeed,

"the prosecutor failed to perform even the most rudimentary search for their names." Maynard,

392 Fed. Appx. at 1 13 . In this setting where a criminal defendant's liberty is at stake the

constitutional obligations of the prosecutor require "disclosure of exculpatory 'information in the

possession of the prosecutor's office, the police, and others acting on behalf of the prosecution."'

Id (quoting Wilson v. Beard, 589 F.3d 6 5 1 , 6 5 9 (3d Cir. 2009)).

45 Nevertheless, the record establishes that Maynard's counsel could have obtained this

information through the exercise of reasonable diligence, both prior to and during trial. Defense

counsel received the arrestees' names during trial, entered them into evidence, and urged the jury

to draw an inference that one of them was connected to the murder weapon.

46 The Third Circuit found that the prosecution had suppressed the arrestees' identities but

determined that Maynard had "not moved his Brady challenge beyond the realm of conjecture"

regarding the second and third prongs, favorability and materiality, because "insofar as the names

of the January 1 arrestees were themselves exculpatory, Maynard presented them to the jury and

urged jurors to conclude that one of the arrestees was linked to the weapon or to the murder." Id

at 1 1 7 - 1 8 . The Court concurs and finds no basis for relief under Brady regarding the identity of

the January 1 arrestees.

20 The quoted language of the Appellate Division relates to the Government's failure to turn over evidence

relating to Maria Weeks' drug use but applies equally here. In that case before the Family Division of the

Territorial Court, the Government sought to remove Weeks' children from her custody due to her drug use.

The Appellate Division found "little doubt that the Government prosecutor in this matter [was] charged

with knowledge of the custody proceedings involving Weeks." Maynard, 5 1 V.I. at 765. That rationale is

even more compelling regarding the names of the January I arrestees, against whom criminal charges were

brought by the same division of the Office of the Attorney General that later brought the case against

Maynard. See also United States v. Perdomo, 929 F.2d 967 (3d Cir. 1 9 9 1 ) (holding that a prosecutor had

constructive knowledge of information held by another arm of the government accessible to the prosecutor).
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b. Weeks' History of Drug Use

47 The Appellate Division and the Third Circuit also found no Brady violation concerning the

Government's failure to provide Department of Health records relating to Maria Weeks' drug use

because the information could have been discovered through the defense's exercise of reasonable

diligence. Maynard, 5 1 V.I. at 766 ("There are strong indications in the record that the Government

misled whether intentionally or unintentionally the defense by repeatedly insisting that it

had...[no] knowledge of Weeks' drug use .. . Balanced against the Government's knowledge of

Weeks' drug use .. . however, is Maynard's apparent knowledge of, and total lack of diligence in

obtaining information about, that drug use."); Maynard, 392 Fed. Appx. at 120 ("Because

Maynard's counsel could have obtained the records prior to trial through the exercise ofreasonable

diligence, those records cannot serve as the basis for relief under Brady."). The Court concurs and

finds no basis for relief under Brady arising from the Government's failure to provide Department

of Health records relating to Weeks' drug use, as those records were reasonably available to

Maynard.

III. Analysis - Ineffective Assistance o
f Counsel

,i 48 To prevail on an ineffective assistance of counsel claim, a petitioner must ( I ) overcome the

presumption that trial counsel's performance was part of sound trial strategy by identifying specific

"acts or omissions of counsel that are alleged not to have been the result of reasonable professional

judgment," and that (2) raise a reasonable probability of prejudice such that confidence in the

outcome of the trial is undermined. Ibrahim, 2008 V.I. Supreme LEXIS 20 at * 5; Strickland, 466

U.S. at 694. Maynard raises two ineffective assistance of counsel claims: (a) trial counsel's failure

to request a continuance at the final pretrial hearing; and (b) trial counsel's failure to investigate

(i) the six arrestees and (ii) key prosecution witness Maria Weeks' history of drug use. The Court

finds that Maynard has not established that acts or omissions of counsel entitle him to relief for

failing to request a trial continuance at the pretrial conference or for failing to investigate the

identities of the six January I , 2000 arrestees. Nonetheless, the Court does find that Maynard is

entitled to relief as a result of trial counsel's failure to investigate Maria Weeks' history of drug

use.
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a. Counsel's Decision Not to Request a Continuance

49 Maynard argues that he was denied a fair trial because defense counsel failed to request a

continuance of the trial at the final pretrial hearing two weeks prior. He posits that such a

continuance would have permitted further investigation into the individuals arrested for possessing

the alleged murder weapon and, regarding Weeks, to "procure evidence of the eyewitness's prior

crack use and diagnosis of being a pathological liar." Petition at fl 35-39. Instead of seeking to

continue the trial to permit further investigation, defense counsel renewed his document disclosure

requests at the final pretrial conference and again at the commencement of trial, to no avail.

50 The Court finds that counsel's failure to request a continuance of trial does not, standing

alone, overcome the presumption afforded to counsel that such action was part of sound trial

f the Virgin Islands, 71 V.I. 1227, 1242 (3d Cir. 2019) ("It is a high
strategy. See Simon v. Gov't o

bar to claim ineffectiveness from failing to seek a continuance or lack of time to prepare."). The

time required to investigate these matters may not have necessitated a continuance of the trial, if

counsel had successfully obtained the documentation sought. As such, defense counsel's failure to

request a continuance, in itself, does not amount to ineffective assistance of counsel.

b. Counsel's Failure to Investigate

i. Identity o
f the Six Arrestees

1 51 The Court finds that Maynard has satisfied the first prong of the ineffective assistance of

counsel analysis, overcoming the presumption that counsel's failure to make attempts to identify

and investigate the arrestees before or during trial was part of sound trial strategy and that such

omissions were not the result of reasonable professional judgment. Counsel could have made

attempts to learn the identities of the arrestees prior to trial by contacting the law enforcement

personnel who handled the arrests. Further, counsel never spoke with any of the arrestees after

learning their names, even though the court did not rule on Maynard's Brady challenge until a

month after trial. These omissions cannot in good faith be deemed to have been part of a sound

trial strategy.
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'I[ 52 Yet, as the trial judge noted, counsel had all the information necessary to argue to the jury

21 22
that someone else possessed the AK-47. Indeed, counsel made that argument to the jury.

Further, there is no showing that any of the six arrestees could have provided exculpatory evidence.

As such, Maynard has not raised a reasonable probability of prejudice such that confidence in the

outcome of the trial is undermined to the extent necessary to satisfy the second prong of his

ineffective assistance of counsel claim. See Maynard, 5 1 V.I. at 760; Ibrahim, 2008 V.I. Supreme

LEXIS 20 at *5. Accordingly, the Court finds that Maynard has not established his ineffective

assistance of counsel claim regarding counsel's failure to investigate the identities of the six

arrestees.

ii. Weeks' History of Drug Use

'1[ 53 It is undisputed that the defense knew about Weeks' drug use, knew how to obtain

information about that drug use, and was offered assistance of the court to do so. Defense counsel's

failure to take steps, with or without the trial court's offered assistance, to obtain this significant

information concerning Weeks easily overcomes the presumption of sound trial strategy. It is clear

that, with due diligence of counsel in advance of or during trial, the evidentiary landscape before

the jury would have been vastly different from that upon which Maynard was convicted.

54 Counsel repeatedly declined assistance of the trial court to procure this crucial information

concerning the prosecution's key eyewitness before and during trial. The relative ease with which

counsel obtained the information after trial, as he could have done before trial, leads to the

inescapable conclusion that Maynard's counsel's representation was objectively unreasonable,

indicative of a lack of zealousness in preparation and advocacy at trial. As such, regarding Weeks'

records, Maynard has satisfied the first prong of his claim for ineffective assistance of counsel, as

21
The trial judge further stated: "The Court finds that the defendant had all the information to discover

those names, and based on cross-examination probably knew of those named..." Maynard, 5 1 V.I. at 760.

12
During closing argument, Maynard's counsel urged the jury to infer that one of the arrestees was linked

to the firearm in an attempt to discredit the government's theory that Maynard was responsible for the

murder of Hyman, Sr.:

"But we know, do we not, that somebody else other than Kenrick Maynard possessed that gun,

because on January I , 2000, there was a shooting...

" .. . {The police) arrested Jose Hodge, Antonio Benjamin, Sherman Louis, Kareem George, Naja

Adams, and Kwasi Adams [) for possession of that same firearm, the gun that was used to kill Adolph

Hyman [Sr. J . .. "

Maynard, 392 Fed. Appx. at 1 1 0 .
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the Court finds that the representation included acts and omissions that were not consistent with

any sound trial strategy or the exercise of reasonable professional judgment. See Ibrahim, 2008

V.l. Supreme LEXIS 20 at 5.

55 As to the second prong, the Court finds that defense counsel's failure to investigate Weeks'

history of drug use and propensity for prevarication raises a reasonable probability of prejudice to

Maynard, undermining confidence in the outcome of the trial. The question here is whether, absent

the errors of counsel, "the factfinder would have had a reasonable doubt respecting guilt."

Strickland, 466 U.S. at 695. Weeks was the Government's key eyewitness. Maynard had personal

knowledge of her drug use and, because of counsel's "deficient performance," Maynard's defense

was prejudiced by the fact that his testimony as the accused was the only evidence the jury heard

to impeach Weeks' credibility. See Burke v. Prosper, 70 V.I. at 874. Had Maynard been able to

present concrete impeachment evidence about Weeks' eleven-year history of crack cocaine

addiction, as well as her therapists' characterization that she was "a pathological liar who alters

the truth to fit her needs and fantasies," Weeks' credibility as a witness would have undoubtedly

been seriously affected. On these facts, by the acts and omissions of his counsel, Maynard was

substantially prejudiced at trial to the extent that confidence in the outcome of the trial has been

undermined.

56 Considering the "totality of the evidence," the Court finds that Maynard's inability to

present at trial concrete evidence to support his own testimony of Weeks' drug use, evidence that

with diligence was available to his counsel, likely "had a pervasive effect on the inferences to be

drawn from the evidence, altering the entire evidentiary picture." Strickland, 466 U.S. at 695-96.

On these facts, the Court finds that "there is a reasonable probability that, absent the errors [of

counsel], the factfinder would have had a reasonable doubt respecting guilt." Id.at 695. As such,

Maynard has satisfied the second prong of his claim for ineffective assistance of counsel and is

entitled to relief.

CONCLUSION

,i 57 In sum, the Court finds that Petitioner Maynard was deprived of constitutionally mandated

effective assistance of counsel at trial. Defense counsel's failure to investigate Government witness

Maria Weeks' history of drug use fell below an objective standard of reasonableness. Counsel's
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deficient performance prejudiced Maynard "resulting in an unreliable or fundamentally unfair

outcome in the proceeding." Burke, 70 V.I. at 874. Maynard prays for an order discharging him

from his sentence or, in the alternative, a new trial. Chapter 91 of Title 5 of the Virgin Islands

Code governing habeas proceedings "contemplates remedies other than discharge . . . [and]

recognizes that an incarcerated individual may not be entitled to immediate discharge from

custody, yet may still be unlawfully imprisoned and entitled to relief." Rivera-Moreno, 61 V.1. at

295.

1 58 In light of the foregoing, Petitioner is granted relief by separate Order entered herewith,

vacating that portion of the November 2 1 , 2001 Judgment and Commitment entered in Criminal

No. ST-F400/2000 adjudicating Maynard guilty of the Virgin Islands crimes of first-degree murder

(14 V.1.C. § 922(a)(l)) and unauthorized possession of a firearm (14 V.1.C. § 2253(a)), and

granting a new trial on those charges.

DATED:

ATTEST:

TAMARA CHARLES

Clerk of the Court

By: Sharisse A. Bascombe _

Court Clerk Supervisor
 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

KENRICK MAYNARD,

Petitioner,

SX-2018-MC-00066
V.

GOVERNMENT OF THE VIRGIN PETITION FOR WRIT OF

ISLANDS, GOVERNOR ALBERT BRYAN HABEAS CORPUS

in his official capacity, ARIEL M. SMITH,

ATTORNEY GENERAL in her official

capacity, BUREAU OF CORRECTIONS

DIRECTOR WYNNIE TEST AMARK in her

official capacity, CITRUS COUNTY

DETENTION CENTER WARDEN MIKE

QUINN in his official capacity,

Res ondents.

ORDER

By Memorandum Opinion entered in this matter herewith, Petitioner is entitled to relief on his

Petition for Writ of Habeas Corpus. Accordingly, it is hereby

ORDERED that Petitioner's prayer for relief pursuant to Writ of Habeas Corpus is

GRANTED. It is further

ORDERED that the portion of the November 21, 2001 Judgment and Commitment in

Criminal No. ST-F400/2000 adjudicating Petitioner GUILTY of Count IV (First-Degree Murder: 14

V.I.C. § 922(a)(l)) and Count V (Unauthorized Possession and Carrying ofa Firearm: 14 V.I.C. §§

2253(d) and 2253(a)) is VACATED and set aside. It is further

ORDERED that Respondent, through the Office of the Attorney General, shall notify the

Court, in writing, within thirty (30) days of the date of entry of this Order whether the People of the

Virgin Islands intend to retry the referenced criminal charges against Petitioner. It is further

ORDERED that Petitioner shall remain in the custody of the Bureau of Corrections pending

further Order of the Court. It is further

ORDERED that a copy of this Order and the accompanying Memorandum Opinion shall be

served FORTHWITH on all parties and appearing counsel.

osm 7.4, 7, 202 3

ATTEST: TAMARA CHARLES

Clerk of the Court

Sharisse A. Bascombe
By:-------------
Court Clerk Supervisor
 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix

Kenrick Maynard, Case Number: SX-2018-MC-00066
Plaintiff Action: Writ of Habeas Corpus
v.

Kenneth Mapp, et al,
Defendant.

NOTICE of ENTRY
of
Order
To Yohana M. Manning, Esq. Michael Robert Francisco, Esq.
:

Please take notice that on July 10, 2023
a(n) Memorandum Opinion and Order
dated July 7, 2023 was/were entered
by the Clerk in the above-titled matter.

Dated July 10, 2023 Tamara Charles
:
Clerk of the Court
By:

Sharisse Bascombe
Court Clerk Supervisor