Opposition Brief — Coleman v. Thompson

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hae? fi No. 89-7662 JUN 20 1990

JOSEPH F. SPANIOL, JR.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1989 ae,

| RECEIVED

JUN 9:

ROGER KEITH COLEMAN, UN 22 1999 j

Petitioner,

V.

CHARLES E. THOMPSON, WARDEN,

Respondent.

On Petition For A Writ Of Certiorari fo The

United States Court Of Appeals For The Fourth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

MARY SUE TERRY

Attorney General of Virginia

*Donald R. Curry

Senior Assistant Attorney General!

Office of the Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624

©

*Counsel of Record

Il.

Il.

QUESTIONS PRESENTED

Is petitioner's claim pertaining to the penalty-stage

verdict barred by his multi-leveled procedural default?

Has petitioner demonstrated any reason warranting

review of his attenuated Harris v. Reed claim?

In view of the lower courts' alternate rejection of the

merits of his claims, has petitioner demonstrated any

reason warranting review of his Sykes "cause" claim?

TABLE OF CONTENTS

Page

CURTIS PRR ec cc cc cere wc nccvcecccccecceeenseeseseceses i

TABLE GE GIP RTM 6 cece ccc ce cece ese ccc ec eseceeeeesecesscee iii

Pt ee ee ee a ee sceeee 1

CONSTITUTIONAL AND STATUTORY

sco, 3 | .. | . er ee ee ee a a ee eee ee 2 1

SPATE e Ge Tete CARE cece ccc ccc e ses eeceeoconeerecesceceses 1

STATEMENT OF FACTS oc ccc ccc ccccccccecc cece esses eseseeseuss 4

REASONS FOR DENYING THE WRIT .........e66- WET TTTTT CTT TTie 5

I. COLEMAN'S DUE PROCESS CLAIM PERTAINING TO THE

UNANIMITY OF THE PENALTY-STAGE VERDICT IS BARRED

BY PROCEDURAL DEFAULT AND DOES NOT WARRANT

CERTIORARI REVIEW .......-ce0- OU TTETECILETILTLTT 5

A. an... 1 LL. \SeREREELELELUTELELELILELILeTle 5

B. Constitutional irrelevance ......cccceesescevessvees -6

C. Faulty premise ...ccccccccccccccccccccscceses coeel

Il. COLEMAN'S HARRIS V. REED CLAIM DOES NOT

WARRANT CERTIORARI REVIEW .......44-6. obeeeccences 9

A. Bound by prior concessions .......+.+++- errr TeTTtTT

B. No "special and important" reasons .......5eeeeeeeeees 10

Ill. PETITIONER HAS SHOWN NO REASON WHY THIS

COURT SHOULD REVIEW HIS CLAIM CONCERNING

"CAUSE" FOR HIS DEFAULT DURING STATE HABEAS

PROC ERIS cccccccccc esc cceeserccesceccececscene 12

A. Underlying claims without merit ......... eecececcces 12

B. Phantom “eplit” ..cccccccccecses Seoceeeoesseaseces 13

c. Carrier/Torna/Finley/Giarratano ........eeeeee0% »enete

CONCLUSION ........ TrTTTTLLT oneeecese WTeTTTTTCT TTT wTrTT

CERTIFICATE .cccoveveseses 2eeeee eeoeneccoeeves WEeTTTETLILi. 16

ii

TABLE OF CITATIONS

Cases

Page

Buelow v. Dickey,

847 F.2d 420 (7th Cir. 1988),

cert. denied, 109 S.Ct. 1168 (1989)... . ccc wcrc rrr cnc c rece ceccces 14, 15

Cabana v. Bullock,

Et Sf). FRPP ererrerrerrrerrririrrerrlrr se 8

Clark v. Commonwealth,

220 Va. 201, 257 S.E.2d 784 (1979),

cert. denied, 444 U.S. 1049 (1980) ... cece rc cn cen cncccccccsessesece 7

Clemons v. Mississippi,

US. _, 110 S.Ct. 1441 (1990) 2. cece ee ence cece reece eee een eenees 8

Coleman v. Bass,

168 S.CU. BSS CIGST) on ccccccccccccccccssesesesesesesesseseesses 3

Coleman v. Commonwealth,

226 Va. 31, 307 S.E.2d 864 (1983)... cece ecceccccccesesscseeseseess 2

Coleman v. Thompson,

SOS F.26 139 (4th Cir. 1998) ..ccccccccccscccccesecesesesessesesse 3

Evans v. Thompson,

OBl F.26 117 (4th Cir. 198B) ..cccccccccscccccccccesesseseseseces 11

Evitts v. Lucey,

rf’ Bik @ 2s | | POPrererreerrerreerereeerriry 15

Fay v. Noia,

gt f: Frrrrvrirrrrrrstf. 15

Frisby v. Schultz,

US. __, 108 S.Ct. 2495 (1988) 2... cece cece eee eee eee ee ee eee eeeee 6

Harper v. Nix,

867 F.2d 455 (8th Cir.),

cert. denied, 109 S.Ct. 3194 (1989)... . . cece ewe werner nen n nner encees 13

Harris v. Reed,

— ULS. __, 109 S.Ct. 1038 (1989) 26. cece ence eee cece eee e enn neee 5, 9, 11

Hicks v. Oklahoma,

. A * @' o) PRAAPPrrerrerrrirrerrreirelt eee 8

Hoke v. Commonwealth,

237 Va. 303, 377 S.C.2d 595,

cert. denied, 109 S.Ct. 3201 (1989)... . cece ere ccccresccccccsecses "‘eeeee 7

Hughes v. Idaho State Bd. of Corrections,

800 F.2d 905 (9th Cir. 1986) .......... MCCCCSS SCC ese reseeseeeees 15

Jones v. Barnes,

eee eee ee es oo ooo coe ess eens eet besessoree 15

Kentucky v. Stincer,

(jj eee eee SCRE CO CC h eee eee eee ee eeeeseoeceees 12

Laws v. Armontrout,

834 F.2d 1401 (8th Cir. 1987),

aff'd en banc, 863 F.2d 1377 (8th Cir. 1988),

Fee cece eb eeeeeees 13

Lowenfield v. Pheips,

OD TTT TLE CETTE CETTE CULUEETUTTTT Tee 6

Madyun v. Young,

Dee eee WU COU Gils BUMP cece cece ccenercceccesececocececeses 14

Mitchell v. Wyrick,

727 F.2d 773 (8th Cir.),

es eae ee eee eeeeeesee 14

Morrison v. Duckworth,

I EE ee 14

Murray v. Carrier,

SE OSES ST CCCTTET TEL CTU CCL CCCTT ETT 14

Murray v. Giarratano,

ee «eb accsecesacosateesecescoocecacees 14

Pennsylvania v. Finley,

eee eee a6 66 6066S CS ORS ROC OK R ECO EEE DOE SES 14

Ross v. Moffitt,

ee ns cee ees eeceeeeeesece 11

Saunders v. Reynolds,

rr rr CPD sec c eee eeccee ese esecereceecesenes 10

Shaddy v. Clarke,

eC cece ee Sees ecesceseceocencececcoaceees 13

Shook v. Clarke,

EE ee a 13

Tuggle v. Commonwealth,

230 Va. 99, 334 S.E.2d 838 (1985),

cert. denied, 478 U.S. 1010 (1986) 2... ccc ccc ccccccnccccccccccecs 8

iv

Virginia v. American Booksellers Ass'n.,

Pc 26k Ce CROC hss 6 ob ee KAN Ce S64 bdo kéwee cube 7

Wainwright v. Sykes,

i ns 65.66 606.00 86608660008 6643 ebewséuekseeeeee 5, 15

Wainwright v. Torna,

ee ee ED 6S 608.000060066.000500660600006 bed ene NOMS 14, 15

Williams v. Missouri,

640 F.2d 140 (8th Cir.),

rn a i Cee oc veeabaeeudes boncesedceacdid be snx 14

ees MIT CL os. ohn eae Oo GS EUSS eee un oubinresenunnes 8

ee ee EE cca cdcannwedeneen debeskéduacebencewes 6

ee es Pe SIN sock coves cdnensunescesencundédbeneod 5

Se IPO WOR soc cnc cecaeeneie 66 b0deddcewen sodweus 7

Pe Te ch bond ew EOE hdd © RSS eeeeetedeseweueuedecwes 12

,

No. 89-7662

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

ROGER KEITH COLEMAN,

Petitioner,

V.

CHARLES E. THOMPSON, WARDEN,

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Fourth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JURISDICTION

The petitioner asserts that the jurisdiction of this Court is grounded upon 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are set forth in the Petition

for Writ of Certiorari at 2, in the appendix to the Petition at al-a6, and in the appendix

to this brief at App. 1.

STATEMENT OF THE CASE

On March 18, 1982, a jury in the Circuit Court of Buchanan County, Virginia,

convicted the pe.itioner, Roger Keith Coleman, of the rape and capital murder of his

sister-in-law, Wanda McCoy. For the rape conviction, the jury fixed Coleman's

punishment at life imprisonme:'. The next day, after a separate hearing on the issue of

punishment for the capital murder conviction, the jury fixed a sentence of death. On

April 23, 1982, the Circuit Court imposed the death penalty in accordance with the jury's

verdict.

The capital murder conviction and death sentence were affirmed by the Supreme

Court of Virginia on September 9, 1983. Coleman v. Commonwealth, 226 Va. 31, 307

S.E.2d 864 (1983). This Court denied a petition for a writ of certiorari on March 19,

1984. 465 U.S. 1109 (1984).

Coleman filed a petition for a writ of habeas corpus in Buchanan County Circuit

Court on April 26, 1984. On November 12-13, 1985, an evidentiary hearing was

conducted in the Circuit Court. In a letter opinion dated June 23, 1986, the Circuit

Court rejected Coleman's claims, and in an order signed on September 4, 1986, final

judgment was entered. Coleman filed his notice of appeal in the Circuit Court on

October 7, 1986.

On October 25, 1986, petitioner filed a "Motion to Correct the Date of Entry of

Judgment." That motion requested the Circuit Court to "correct" the date of final

judgment from September 4, 1986 to September 9, 1986. In an order dated November 10,

1986, the Circuit Court denied the motion, stating that "final judgment in this case was

entered on September 4, 1986 and...the records of this Court correctly reflect that fact

at the present time."

On December 3, 1986, Coleman filed a petition for appeal in the Virginia Supreme

Court. On December 9, 1986, the respondent filed a motion to dismiss Coleman's appea!

because the notice of appeal was untimely. By an order dated May 19, 1987, the Virginia

Supreme Court granted the respondent's motion and dismissed Coleman's petition for

appeal. On June 2, 1987, Coleman filed a petition for rehearing which was denied on

June 12, 1987.

Coleman filed a petition for a writ of certiorari in this Court on September 10,

1987. The petition was denied on October 19, 1987. Coleman v. Bass, 108 S.Ct. 269

(1987). :

Coleman then filed a habeas petition in the United States District Court for the

Western District of Virginia on April 22, 1988. On September 19, 1988, after extensive

briefing, the district court heard oral argument on the Commonwealth's motion to

dismiss and Coleman's motion for an evidentiary hearing. In a sixteen-page opinion dated

December 6, 1988, the district court concluded that most of Coleman's claims were

procedurally barred by his default during the state habeas proceedings. Nevertheless, in

an abundance of caution, the district court reviewed those claims, as well as the others

which Coleman had raised in his petition, and concluded that Coleman was not entitled to

federal habeas relief. (a25-a40).

Coleman appealed to the United States Court of Appeals for the Fourth Circuit.

On January 31, 1990, the Fourth Circuit affirmed the denial of habeas relief. Coleman v.

Thompson, 895 F.2d 139 (4th Cir. 1990). (a7-a22). A petition for rehearing was denied on

February 27, 1990 (a23), and the Fourth Circuit's mandate issued on March 23, 1990.

STATEMENT OF FACTS!

Coleman was convicted and sentenced to death for the 1981 rape-murder of his

wife's sister. The cause of death was a "slash wound" to the throat which had severed the

victim's right carotid artery, jugular vein, and larynx. There were two stab wounds to

the victim's chest, one of which had penetrated the heart and lung but had been inflicted

after the victim's death. The other had penetrated the victim's liver and was inflicted

after death or close to the time of death.

The evidence against Coleman was largely circumstantial, including forensic

evidence that Coleman had a rare blood type possessed by only ten percent of the

population, that the sperm found in the victim's vagina emanated from someone with the

same blood type as Coleman's, and that two hairs found on the victim's pubic area

matched Coleman's pubic hair. The evidence also included testimony that Coleman

admitted to a fellow jail inmate that he and another person had participated in the rape-

murder.

At the penalty stage, the Commonwealth presented evidence that Coleman had

committed an attempted rape in 1977 and had been sentenced to three years in the

penitentiary for that offense. In recommending the death sentence, the jury found that

1 A more detailed statement of facts is found in the Supreme Court of Virginia's opinion

on direct appeal. Coleman, 226 Va. at 34-44, 307 S.E.2d at 865-871. In petitioner's

"Statement of the Case," he misrepresents several "facts" which, although not directly

related to any of his "Questions Presented," are nevertheless rebutted by the record and

the district court's opinion. For instance, he claims that two allegedly exculpatory

investigative reports were improperly withheld by the prosecution. (Ptn. 3-4). In

rejecting Coleman's discovery claims, however, the district court ruled that petitioner's

trial attorneys had been given "full access to the prosecution's entire file." (a36).

Likewise without support is Coleman's assertion that his trial attorneys never prepared

for the penalty stage until after the guilt stage. (Ptn. 5). In rejecting Coleman's

ineffective counsel claim, the district court expressly found that counsel had properly

prepared for the sentencing stage and that Coleman had expressly told his attorneys that

he did not want to present any mitigation evidence. (a34). Finally, petitioner claims that

the state habeas judge never resolved Coleman's allegation that a certain juror had made

statements prior to trial that he "wanted to be on the jury to help execute Coleman."

(Ptn. 6). This assertion, however, is directly contradicted by the district court's express

finding that the state habeas court resolved the juror credibility issue in favor of the

Commonwealth. (a29-a30). See also 28 U.S.C. § 2254(d).

Coleman was "future dangerous" and that his offense was “outrageously or wantonly

vile" in that it involved torture, depravity of mind, and aggravated battery to the

victim. See Va. Code § 19.2-264.2.

REASONS FOR DENYING THE WRIT

Ll.

COLEMAN'S DUE PROCESS CLAIM PERTAINING TO

THE UNANIMITY OF THE PENALTY-STAGE VERDICT

IS BARRED BY PROCEDURAL DEFAULT AND DOES

NOT WARRANT CERTIORARI REVIEW.

Petitioner contends that he was denied due process when the penalty-stage

instructions at his trial permitted the jury to return a verdict which, in Coleman's

opinion, violated Virginia law because it allegedly did not specify that the jury was

unanimous in finding at least one aggravating circumstance. This claim does not warrant

certiorari review because it is clearly barred by procedural default, because it is

constitutionally irrelevant, and because it is premised on a faulty concept of Virginia

law.

A. Procedural default

Coleman concedes that he failed, both at trial and on direct appeal, to raise a due

process challenge to the form of the jury's verdict. (Ptn. 18 n.7). Both the Fourth

Circuit (al8) and the district court (a38) correctly ruled that, quite apart from Coleman's

default during the state habeas proceedings, his earlier defaults at trial and on direct

appeal! barred federal review of this claim.” See Wainwright v. Sykes, 433 U.S. 72 (1977).

Petitioner's perfunctory effort to establish Sykes "cause" by asserting ineffective

assistance of counsel! (Ptn. 18 n.7) must fail. In rejecting the identical assertion below,

the district court stated:

Coleman...contends that improper instructions were

given at the penalty stage of the hearing. The court has

examined these instructions and finds that they are grounded in

Virginia law. Certainly counsel cannot be deemed ineffective

for failing to object when the instructions accurately state

Virginia law.

(a34). The Fourth Circuit expressly ratified the district court's finding of procedural

default. (a18).

Thus, both courts below found that Coleman's claim is procedurally barred and

that he failed to establish ineffective assistance of counsel as Sykes "cause" because the

penalty-stage instructions and verdict form accurately reflected Virginia law.?

Petitioner's unexcused default clearly constitutes an adequate and independent state

ground which bars review by this Court.

B. Constitutional irrelevance

Petitioner's attack on the jury's verdict with regard to aggravating circumstances

is constitutionally irrelevant. Under Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546

(1988), even if the only aggravating circumstance found at the penalty stage is later

2 While petitioner's second "Question Presented" (Ptn. 20) raises an issue under Harris v.

Reed, _U.S. __, 109 S.Ct. 1042 (1989), it pertains only to whether his default during

state collateral proceedings can be enforced. It has no bearing on claims, such as this

one, which Coleman defaulted at trial and on direct appeal. Indeed, in the Fourth

Circuit, Coleman conceded that, unless he could show Sykes "cause" and "prejudice," his

due process claim was barred. (See excerpt from Coleman's Fourth Circuit brief in the

attached appendix at 2-3). He makes the same implicit concession in this Court. (Ptn.

18 n.7).

3 Deference to the lower courts! view of Virginia law is appropriate because they “are

better schooled in and more able to interpret the laws of their...States." See Frisby v.

Sehultz, U.S. , 108 S.Ct. 2495, 2500 (1988).

invalidated, the death sentence will remain constitutionally valid where the required

narrowing of the class of those eligible for the death penalty has been accomplished at

the guilt stage. 108 S.Ct. at 555. In Virginia, the constitutionally required narrowing

function is sufficiently accomplished at the guilt stage because a jury cannot convict a

defendant of capital murder unless it finds beyond a reasonable doubt that the accused

committed one of a class of narrowly defined capital offenses. See Va. Code § 18.2-31.

(See appendix to this brief at 1).

In Coleman's case, the narrowing function was sufficiently accomplished when the

jury found beyond a reasonable doubt that he committed a willful, deliberate and

premeditated murder during the commission of rape. See Va. Code § 18.2-3l(e). If a

State can cunttnetionsite premise a death sentence upon a finding at the penalty stage

that the murder was committed during the commission of a rape, see, e.g., Gregg v.

Georgia, 428 U.S. 153, 164 n.9 (1976), then by accomplishing an identical narrowing of

the class of those eligible for the death penalty at the guilt stage, Virginia is not

constitutionally required to accomplish any further narrowing of that class at the penalty

stage. Thus, in the context of Virginia's scheme of capita! punishment, Coleman's claim

about whether the jury unanimously found either or both aggravating circumstances is

constitutionally meaningless.

C. Faulty premise

The !inchpin of Coleman's so-called "due process" ciaim is his assertion that the

jury's sentencing verdict was defective under Virginia law. While he concedes (Ptn. 11

n.3) that the verdict was unanimous on the issue of punishment and was returned in the

exact language of Virginia's statutory verdict form (Va. Code § 19.2-264.4D(i); a6), he

nevertheless contends that the Virginia Supreme Court erroneously determined that the

verdict satisfied the requirements of state law. (Ptn. 12). This argument must be

rejected.

It is elementary that the Supreme Court of Virginia, not this Court, is the final

arbiter of Virginia law. Virginia v. American Booksellers Ass'n., 484 U.S. 383, 395

(1988). Both before and after Coleman's case, the Virginia Supreme Court has

consist_..cly ruled that a penalty-stage verdict, returned in the exact wording of the

statutory verdict form, is sufficient to satisfy the unanimity requirements of Virginia

law. See Clark v. Commonwealth, 220 Va. 201, 213, 257 S.E.2d 784, 791-792 (1979), cert.

denied, 444 U.S. 1049 (1980); Hoke v. Commonwealth, 237 Va. 303, 314-315, 377 S.E.2d

595, 602, cert. denied, 109 S.Ct. 3201 (1989). Indeed, in Hoke the Court expressly

reaffirmed its prior decision in Coleman's case that a penalty-stage verdict satisfies

Virginia law if it merely repeats the language set forth in Virginia Code § 19.2-264.4D.

See Hoke, 237 Va. at 315, 377 S.E.2d at 602.

Petitioner's assertion (Ptn. 10) that this Court should grant certiorari to "clarify"

this Court's recent treatment of Hicks v. Oklahoma, 447 U.S. 343 (1980), is meritless. In

the wake of Cabana v. Bullock, 474 U.S. 376 (1986), and Clemons v. Mississippi, _ U.S.

__, 110 S.Ct. 1441 (1990), Hicks needs no further clarification. Both cases make clear

that, in order to establish a due process violation under Hicks, a petitioner must, at the

very least, be correct in his assertion that he was denied something he was entitled to

under state law. See Cabana, 474 U.S. at 387 n.4; Clemons, 110 S.Ct. at 1447-1448. In

Coleman's case, the Virginia Supreme Court, as the final arbiter of Virginia law, has

determined that the verdict in his case satisfied state law. See Coleman, 226 Va. at 53,

307 S.E.2d at 876. Here, as in Clemons, this Court has "no basis for disputing this

interpretation of state law...." See 110 S.Ci. at 1447.

Moreover, the Fourth Circuit correctly recognized (al8-a22) that the Virginia

Supreme Court, pursuant to Virginia Code § 17-110.1, reviewed Coleman's death sentence

and "independently determined that the sentence of death was properly imposed." See

Coleman, 226 Va. at 55, 307 S.E.2d at 877. The Supreme Court of Virginia has long

exercised its authority to independently sustain a death sentence despite alleged error in

the jury's sentencing decision. See, e.g., Tuggle v. Commonwealth, 230 Va. 99, 110, 334

S.E.2d 838, 845-846 (1985), cert. denied, 478 U.S. 1010 (1986). Under Cabana and

Clemons, Coleman had no constitutional right to have the sentencing determination made

only by a jury, and his Hicks due process claim could not possibly succeed, even if it were

not barred by procedural def ault.4

COLEMAN'S HARRIS V. REED CLAIM DOES NOT

WARRANT CERTIORARI REVIEW.

A. Bound by prior concessions

Coleman contends that the Fourth Circuit erred when it ruled that the Virginia

Supreme Court's order dismissing his state habeas appeal (a41) satisfied the requirements

of Harris v. Reed, U.S. _, 109 S.Ct. 1038 (1989). He admits that the Commonwealth's

motion to dismiss was predicated solely on default grounds, i.e., that his notice of appeal

was untimely (Ptn. 7), and he admits that the Virginia Supreme Court granted the motion

te dismiss. He asserts, however, that the Commonwealth's motion "might well have been

granted because the court tound the petition [for appeal] to be without substantive

merit." (Ptn. 22-23). This assertion must be rejected, however, because it ignores the

fact that Coleman has expressly conceded, in a prior proceeding in this Court, that his

state habeas appeal was dismissed on procedural grounds and that the Virginia Supreme

Court never reached the merits of this claims.

4 This Court has recently clarified the "new rule" principle which the Court had

announced earlier in Teague v. Lane, _—*U«S. __, 109 S.Ct. 1060 (1989). See Butler v.

McKellar, U.S. _, 110 S.Ct. 1212 (1990). Under Teague, a "new" decision is generally

inapplicable in cases on collateral review unless the decision was "dictated" by precedent

at the time the prisoner's case became final. See Teague, 109 S.Ct. at 1070. In Butler,

however, this Court stated for the first time: "The 'new rule’ principle...validates

reasonable, good faith interpretations of existing precedents made by state courts even

though they are shown to be contrary to later aecisions." 110 S.Ct. at 1217. Under

Teague and Butler, the rule petitioner seeks clearly would be a "new rule" and federal

relief would have been unavailable even if Coleman had not defaulted his claim.

On September 10, 1987, Coleman filed in this Court a petition for a writ of

certiorari to the Supreme Court of Virginia. See Coleman v. Thompson, No. 87-5448. At

page three of that petition, Coleman stated:

In refusing to consider the merits of Coleman's petition

for appeal, the Virgins Supreme Court] ignored established

Rowe and the explicit language of its own rule [requiring

notice of appeal within 30 days after entry of judgment]....On

this basis alone, the court summarily dismissed Coleman's

petition for appeal....

(See excerpt from prior certiorari petition in the appendix to this brief at 4-5; emphasis

added).

Of course, once this Court decided Harris v. Reed, Coleman immediately reversed

his position, and on his return visit to this Court he now argues that the Virginia Supreme

Court "might we’: have" dismissed his habeas appeal on the merits. This Court should not

countenance such cynical "flip-flopping" by a petitioner who will obviously take whatever

position he deems most expedient at any given time.

B. No “special and important" reasons

It is undisputed that, when Coleman filed his state habeas appeal, the

Commonwealth responded by filing a motion to dismiss based solely on the fact that, as a

matter of Virginia law, Coleman's notice of appeal was untimely. (a10). It is also

undisputed that the Virginia Supreme Court granted the motion to dismiss and dismissed

Coleman's petition.° (al0, a41). Under these circumstances, Coleman's Harris v. Reed

claim clearly does not warrant certiorari review.

Neither the district court (a27-a28) nor the Fourth Circuit (all-al2) had any

difficulty concluding that the Virginia Supreme Court dismissed Coleman's habeas appeal

solely because of his untimely notice of appeal. Indeed, no court could have reasonably

9 When the Supreme Court of Virginia denies relief on the merits, it "refuses" the

petition for appeal, rather than "dismisses" it. See Saunders v. Reynolds, 214 Va. 697,

700-701, 204 S.E.2d 421, 424 (1974).

10

reached any other conclusion. An order which expressly grants a motion to dismiss, the

sole basis of which was the untimely filing of a notice of appeal, clearly satisfies the

"plain statement" rule set forth in Harris v. Reed.

Coleman's strained effort to establish an alleged "split" among the Courts of

Appeals concerning the application of Harris v. Reed is inapposite. All of the cases

relied upon by Coleman (Ptn. 24-31) involve the issue of whether a federal court can

resolve an "ambiguous" order in favor of a finding of procedural default. In petitioner's

case, neither of the courts below found the Virginia Supreme Court's order to be

ambiguous. To the contrary, the Fourth Circuit stated:

Coleman's argument lacks a factual basis. The Supreme

Court complied with the "plain statement" rule that Harris

made applicable to habeas corpus proceedings. The Virginia a

Supreme Court's brief order shows precisely how the Court

dealt with the petition for appeal. The Court recites that it

considered all of the papers filed by the parties. The Court

then granted the motion to dismiss, which was based on

Coleman's failure to comply with Virginia Supreme Court Rule

5:9(a), and dismissed the appeal.

(all, emphasis added).

Thus, even it were assumed for the sake of argument that a "split" exists among

the circuits concerning how to deal with an ambiguous state-court order, such a "split"

would be irrelevant to a proper disposition of Coleman's case, where no such ambiguity

exists. When the Fourth Circuit has confronted a truly "ambiguous" state-court order, it

has not hesitated tc apply Harris v. Reed to reach the merits of a petitioner's federal

claim, even where convinced that "the Virginia courts did intend to hold petitioner's

claim procedurally barred....". See Evans v. Thompson, 881 F.2d 117, 123 n.2 (4th Cir.

1989).

Thus, petitioner's Harris v. Reed claim is nothing more than a mere assertion that

the Fourth Circuit erred in applying Harris to the facts of his case. This Court, however,

does not exercise its certiorari power merely to review perceived errors. See Ross v.

Moffitt, 417 U.S. 600, 616-617 (1974). Coleman has failed to show any "special and

11

important" reason for granting such review.© See U.S.S.Ct.R. 10.1.

Ill.

PETITIONER HAS SHOWN NO REASON WHY THIS

COURT SHOULD REVIEW HIS CLAIM CONCERNING

"CAUSE" FOR HIS DEFAULT DURING STATE HABEAS

PROCEEDINGS.

Coleman asserts that this Court should review the Fourth Circuit's conclusion

(al4-al5) that, because he had no constitutional right to counsel during the state habeas

proceedings, he could not assert "ineffective counsel" as "cause" for his procedural

default during those proceedings. This argument should be rejected for a variety of

reasons.

As previously mentioned, even though the district court enforced Coleman's

procedural default, it also reviewed the merits of his claims and found no basis for

federal habeas relief. (a29-a40). Likewise, the Fourth Circuit reviewed Coleman's

claims and concluded that enforcing the default would not "result in a fundamental

miscarriage of justice.” (al5). The Fourth Circuit also satisfied itself that, despite

Coleman's default, his constitutional challenge to iis death sentence was meritless.

(a18-a22).

Under these circumstances, this case would clearly be an inappropriate vehicle for

reviewing the claim which Coleman is pressing. Even if the courts below had totally

6 Certiorari should also be denied in Coleman's case because, unlike any of the cases on

which he relies, here the district court not only recognized and enforced the petitioner's

procedural default, it also alternatively reached the merits of Coleman's claims and

found them lacking. (a29-a40). And, as Coleman admits (Ptn. 9), despite his default, the

Fourth Circuit reviewed, and found no merit in, his "capital sentencing claim." (a18-

a22). Moreover, Coleman admits that his view of the proper application of Harris v.

Reed necessarily “will entail an evaluation of state law" and a determination of what was

"the last state court that must render a decision in order to exhaust state remedies."

(Ptn. 31 n.14). Aside from the fact that Coleman never advanced such an argument in

the Fourth Circuit, see Kentucky v. Stincer, 482 U.S. 730, 747 n.22 (1987), this Court

should not grant certiorari to review such an attenuated claim.

12

disregarded petitioner's state habeas default, there is no chance that he would have

succeeded on the merits of his claims.

B. Phantom "split"

Petitioner relies upon several cases from the Eighth Circuit, and one case from

the Seventh Circuit, to support his assertion that this Court should grant certiorari to

resolve an alleged "split" among the various Courts of Appeals. While he is correct in

conceding that other circuits have reached the same conclusion reached by the Fourth

Circuit (Ptn. 37, 42), a review of the Seventh and Eighth Circuit cases he cites reveals

that Coleman's allegation of a "split" is fallacious.

While both Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir. 1990), and Shaddy v.

Clarke, 890 F.2d 1016, 1018 n.4 (8th Cir. 1989), rely upon Harper v. Nix, 867 F.2d 455,

457 (8th Cir.), cert. denied, 109 S.Ct. 3194 (1989), for the proposition that a claim of

ineffective habeas counsel can constitute "cause" for a procedural default, a review of

Harper shows that the issue was neither raised nor decided in that case because it was

undisputed that "[c]ounsel made a tactical decision to abandon" the defaulted claims.

Harper, 867 F.2d at 457. Thus, neither Shook, Shaddy, nor Harper represents a definitive

ruling by the Eighth Circuit that "cause" for a procedural default can be satisfied by an

assertion of ineffective habeas counsel.

To the contrary, other panels of the Eighth Circuit have clearly indicated that,

because there is no constitutional right to counsel during state habeas, a claim of

ineffective habeas counsel cannot constitute "cause" for a procedural default. See Laws

v. Armontrout, 834 F.2d 1401, 1415 n.10 (8th Cir. 1987), aff'd en bane, 863 F.2d 1377 (8th

Cir. 1988), cert. denied, 109 S.Ct. 1944 (1989), citing Mitchell v. Wyrick, 727 F.2d 773,

774 (8th Cir.), cert. denied, 469 U.S. 823 (1984), and Williams v. Missouri, 640 F.2d 140,

143-144 (8th Cir.), cert. denied, 451 U.S. 990 (1981). Thus, the cases from the Eighth

Circuit certainly do not support Coleman's contention that there is a "split" between that

Circuit and the Fourth Circuit's decision in Coleman's case.

13

Likewise without foundation is Coleman's assertion that the Seventh Circuit's

decision in Madyun v. Young, 852 F.2d 1029, 1033 n.3 (7th Cir. 1988), represents a "split"

with the Fourth Circuit. As the Fourth Circuit recognized in Coleman's case (a15), the

referenced footnote in Madyun is clearly dicta. And more importantly, when the Seventh

Circuit was squarely presented with the issue, it held unequivocally that a claim of

ineffective habeas counsel cannot constitute Sykes "cause." See Morrison v. Duckworth,

898 F.2d 1298, 1301 (7th Cir. 1990); Buelow v. Dickey, 847 F.2d 420, 425-427 (7th Cir.

1988), cert. denied, 109 S.Ct. 1168 (1989).

Certiorari should not be granted to resolve a "conflict" which does not exist. This

Court should reject Coleman's attempt to manufacture a "split" where there is none.

C. Carrier/Torna/Finley/Giarratano

The Fourth Circuit correctly applied this Court's prior decisions and rejected

Coleman's assertion of “ineffective habeas counsel" as "cause" for his procedural

default. In Murray v. Carrier, 477 U.S. 478, 488 (1986), this Court held that "[s]o long as

a defendant is represented by counsel whose performance is not constitutionally

ineffective...we discern no inequity in requiring him to bear the risk of attorney error

that results in a procedural default." (Emphasis added). And this Court has made clear

that, unless one has a constitutional right to counsel, one cannot claim that his counsel

was constitutionally ineffective. Pennsylvania v. Finley, 481 U.S. 551, 558 (1987) (the

proposition that "the State may not cut off a right to appeal because of a lawyer's

ineffectiveness...depends on a constitutional right to appointed counsel that does not

exist in state habeas proceedings"); Wainwright v. Torna, 455 U.S. 586, 587-588 (1982).

See also Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985) ("Of course, the right to effective

assistance of counsel is dependent on the right to counse! itself.").

Clearly, Coleman did not have a constitutional right to counsel during his state

habeas proceedings. See Murray v. Giarratano, U.S. __, 109 S.Ct. 2765, 2770 (1989);

Pennsylvania v. Finley, 481 U.S. at 556. In no sense, was there any "external"

14

impediment to Coleman's timely perfecting of his state habeas appeal, particularly in

view of the fact that Coleman's state habeas attorneys were retained counsel of his own

choosing. See Torna, 455 U.S. at 588 n.4 (no due process violation where retained counsel

filed discretionary appeal one day late). Thus, Coleman cannot establish Sykes "cause"

by pointing to an alleged error by his habeas attorney. See Carrier, 477 U.S. at 488

("cause" must be based on "some objective factor external to the defense"). ”

CONCLUSION

Coleman has clearly failed to present any "special and important" reasons which

would warrant certiorari review. U.S.S.Ct.R. 10.1. His claims are either procedurally

barred, constitutionally irrelevant, contrary to a position he has previously taken in this

Court, or simply without merit. While the district court recognized Coleman's proce-

dural default during the state habeas proceedings, that court nevertheless meticulously

reviewed and rejected his claims. The Fourth Circuit also carefully reviewed the merits

a According to petitioner, Fay v. Noia, 372 U.S. 391 (1963), rather than the Sykes

“eause" and "prejudice" test, shiuld govern his case. (Ptn. 46). This claim does not

warrant certiorari review because it is so patently without merit. The Sykes standard is

equally applicable whether the default occurred at trial, during direct appeal, or during

state habeas proceedings. See Murray v. Carrier, 477 U.S. 478, 490 (1986). While the

Carrier Court left undecided "whether counsel's decision not to take an appeal at all

might require treatment under" Fay rather than Sykes, see Carrier, 477 U.S. at 492, the

Court's reservation of that question only indicates that, if Fay has any continued vitality,

it must be strictly confined to its facts. Fay, like most of the other cases Coleman relies

upon (Ptn. 48), involved a default on direct appeal from a criminal conviction. See 372

U.S. at 394. While there is authority for the proposition that the decision whether to file

the initial direct appeal is so fundamental that a defendant cannot be bound by his

attorney's decision not to appeal, see Jones v. Barnes, 463 U.S. 745, 751 (1983), such a

stringent default standard makes no sense where no fundamental right is involved. The

fact that Coleman had no constitutional right to counsel for his state habeas appeal,

see Finley, is a clear indication that no fundamental right was at stake in those civil

proceedings. Therefore, even if Fay remains valid under the facts of that case, it has no

application to Coleman's case where the default occurred, not on direct appeal, but

during a state collateral appeal. See Buelow v. Dickey, 847 F.2d at 428-429; Hughes v.

Idaho State Bd. of Corrections, 800 F.2d 905, 907-908 (9th Cir. 1986). Nor does it have

any application where, as here, counsel did not decide to forego an appeal, but rather,

decided to appeal but failed to do so in a timely manner. Coleman has advanced no

reason why this Court should retreat from the Sykes/Carrier line of cases, and return to

the entirely unworkable "deliberate bypass" standard of Fay v. Noia.

15

of Coleman's constitutional challenge to his death sentence and satisfied itself that

petitioner's case did not fall within the "fundamental miscarriage of justice" exception to

the Sykes default rule. Petitioner has failed to present any reason to believe that, even

if all of his multitudinous defaults were overlooked or excused, he would have any

reasonable probability of succeeding on the merits of his claims. Under all these

circumstances, this Court should deny Coleman's petition for certiorari review.

Respectfully submitted,

MARY SUE TERRY

Attorney General of Virginia

*Donald R. Curry

Senior Assistant Attorney General

*Counsel of Record

CERTIFICATE

I hereby certify that I, Donald R. Curry, Senior Assistant Attorney General of

Virginia and a member of the Bar of this Court, did on or before this 20th day of June,

1990, mail with first class postage prepaid two copies of this brief in opposition to John

H. Hall, Esquire, Debevoise & Plimpton, 875 Third Avenue, New York, New York 10022,

counsel of record for petitioner.

Donald R. Curry

Senior Assistant Attorney General

16

APPENDIX TO

RESPONDENT'S BRIEF IN OPPOSITION

f.

defined; punishment. — The following o

a a ee murder, punishable as a Class 1 oe

ss The willful, deliberate = —_ gpd ge Td Lg ~ i

commission of abduction, as defin § 18. ' —

i tent to extort money or a pecun

one willfal, deliberate and premeditated killing of any person by

antec wvillfal deliberate and premeditated killing of any ( a. ae

risenar confined in a state or local correctional ~ ed as defined i 1-1,

a4 while in the custody of an employee Ls ; sein ite

(d) The willful, deliberate and premeditated - ing of any pe

commission of robbery while armed with a deadly weapon;

(e) The willful, deliberate and premeditated killing of any person in Ge

commission of, or subsequent a samadteeeed killing of a law-enforcement

dg ee, 1 O10) @ when such killing is for the purpose of

— on with the performance of his official duties; chon ene pareen

ar The willful deliberate and premeditated - of more

; transaction; and _ ,

eh) The wrillfel deliberate and ape pe aitiog Od Ley oe

7 ission of abduction as defin § 18.

. —— am sup cnmminal ait the intent to extort mone 4 s pce

— with the intent to defile the victim of such abdu ~ —_

benefit, or e or more subsections, sentences or parts of this sec os iy ~*~

a | ' nconstitutional or invalid, such adjudication —y ap bes an ee tae

or invalidate a ar sateen Ao) pe A aaa or invalid. (Code

ns so , 648:

operation 10 tne Sp OL. 1960, c. 358; 1962, c. 42; 1966, c. 300; 1970, c. 648;

1950, §§ 181-21 03-20. ee gi6. c 503: 1977, c. 478; 1979, c. 582; 1980, c

: "14, 15; 1976, c. 503; 1977, ¢. 478; 1979 |

bl ela 4 1982. ¢ 636: 1983, c. 175; 1985, c. 428; 1988, c. 550.)

any restraint on the arbitrary and capricious infliction

of the death sentence.

The Virginia Supreme Court has itself recognized

the need for a limiting instruction for the depravity of

mind subpart. In Smith v. Commonwealth, 219 Va. 455, 248

S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 976 (1979),

the court construed “depravity of mind" to mean "a degree

of moral turpitude and physical debasement, surpassing that

inherent in the definition of ordinary legal malice and

premeditation," but neither the sentencing court nor the

Virginia Supreme Court applied this limiting construction

to Coleman’s case. As in Godfrey, the fact that the state

had used a limiting construction in prior cases does not

cure the constitutional infirmity in Coleman’s case. See

Godfrey, 446 U.S. at 432. In the absence of sufficient

limiting instructions on the "vileness" circumstance, the

sentence of death was unconstitutionally imposed on

Coleman because the jury’s discretion was not channelled

properly.

CG. Because Coleman’s Trial Counsel Was

Ineffective For Failing To Object

To The Capital Sentencing Instructions,

ou .

Failure to object to the constitutionally infirm

capital sentencing instructions constituted ineffective

assistance of counsel. (App. 1065-69.) This ineffective

assistance satisfies the cause and prejudice standard of

Wainwright v. Sykes. See Murray v. Carrier, 477 U.S. 478

(1986). By failing to object to the capital sentencing

instructions, Coleman’s counsel allowed the Virginia’

capital sentencing scheme to be applied to Coleman ‘fn an

unconstitutional way to his obvious prejudice. This

failure to ensure that the Virginia capital sentencing

scheme was applied properly to Coleman, meant that "a just

result under the standards governing decision" was not

reached. Strickland v. Washington, 466 U.S. 668, 687

(1984).2> See also Daugherty v. Dugger, 839 F.2d 1426,

1428 (llth Cir. 1988), cert. denied, 109 S. Ct. 187 (1989)

(counsel would be ineffective for failure to object tc a

jury instruction when “the instruction is improper... a

reasonably competent attorney would have objected to the

instruction, and the failure to object was prejudicial").

25. Counsel’s failure to object at trial meant that they

could not cure their error when representing Coleman

on direct appeal. See Coleman v. Commonwealth, 307

S.E.2d at 876.

64

Ape: >

no. §7-S448

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

ROGER KEITH COLEMAN

Petitioner,

Vv.

GARY L. BASS, WARDEN,

Mecklenburg Correctional Center,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

The Petitioner, Roger Keith Coleman, respectfully

petitions for a writ of certiorari to review the

judgment of dismissal entered by the Supreme Court of

Virginia on May 19, 1987.

OPINIONS BELOW

The judgment of the Supreme Court of Virginia

dismissing Petitioner's petition for appeal is

reproduced at Appendix 1. The order of the Supreme

Court of Virginia denying Petitioner's Petition for

Rehearing is reproduced at Appendix 2. The June 23,

1986 “opinion-letter" of Judge Glynn R. Phillips,

Circuit Court of Buchanan County, Virginia, is

reproduced at Appendix 3. The Final Order of that

court, dated September 4, 1987 and entered on the docket

September 9, 1987, is reproduced at Appendix 4.

App. 4

of his first state habeas corpus petition, apparently

because the Notice of Appeal was not filed within

30 days of the gigning of the final judgment below,

although it was filed within 30 days of the entry

(filing) of the final judgment below. In refusing to

consider the merits of Coleman's petition for appeal,

the court ignored established precedent and the explicit

language of its own rule. Under the Supreme Court of

Virginia's novel interpretation, Petitioner's Notice of

Appeal was one day late. On this basis alone, the court

‘summarily dismissed Coleman's petition for appeal --

even though he raised several substantial federal

constitutional arguments and the Commonwealth could not

possibly have suffered any prejudice. * On June 12,

1987, again, without opinion, the Supreme Court of

Virginia denied Mr. Coleman's Petition for Rehearing.

Roger Keith Coleman was convicted of capital

murder in the Circuit Court for Buchanan County and

sentenced to death. After exhausting his direct appeals

to the Supreme Courts of Virginia and of the United

States, > Coleman filed a petition for a writ of habeas

A

corpus in the Circuit Court for Buchanan County. A

:

“ The Supreme Court of Virginia dismissed Petitioner's

petition for appeal and denied his Petition for

Rehearing, both without opinion. Accordingly,

Petitioner can only assume that the court adopted the

Commonwealth's position as articulated in its briefs.

é Under the court's ruling, the Notice of Appeal was

due on Monday, October 6 (the first working day after

Octcber 4, the date that the Notice was due under the

Commonwealth's reasoning) rather than October 7.

Petitioner's Notice of Appeal was mailed to the court

clerk and to the Commonwealth on the 6th, and was

received by both on October 7. If Petitioner had hand-

delivered the Notice to the clerk, rather than mailed

it, and had still mailed a copy to the Commonwealth -- a

perfectly acceptable practice -- the Commonwealth would

have received notice on the same day, but the Notice

would have been timely filed. Certainly the

Commonwealth suffered no prejudice from the fact that

the Notice of Appeal happened to be sent by mail, rather

than hand-delivered, to the clerk.

3 Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864

(1983), cert. denied, 456 U.S. 1109 (1984).

App. 5