Appendix — Strickler v. Greene

EDITOR'S NOTE

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AT THE TIME OF FILMING, IF i ten

BETTER COPY CAN

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BE OBTAINED, A NEW FICHE

Is. A-|3G

y No. 97-

; IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ioe)

—eh Swe

Supreme Court, U TOMMY DAVID STRICKLER,

FILED

Petitioner-Appellant,

cP ys 1998

Vv.

OFFICE OF THE CLERK RONALD ANGELONE, Director,

Virginia Department of Corrections,

oe ieee anaes Respondent-Appellee.

RE

HAND Det £2.90" Petition for a Writ of Certiorari to the

“ERED fourt Of Appeals For The Fourth Circuit

SEP ~ 1 499,

OFFICE OF THE CLERK APPLICATION FOR A STAY OF EXECUTION

SUPREME COURT, Us

Imminent Execution Scheduled

September 16, 1998

t Mark E. Olive Barbara L. Hartung

; Virginia Capital Representation (Counsel of Record)

Resource Center 1001 East Main Street

1001 East Main Street Suite 504

Richmond, Virginia 23219 Richmond, Virginia 23219

(804) 643-6850 (804) 649-1088

Counsel for Petitioner

APPLICATION FOR A STAY OF EXECUTION

Pursuant to Supreme Court Rule 23 and 28 U.S.C. sec. 2251,

Petitioner Tommy David Strickler moves this Court for a stay of his

execution, scheduled for September 16, 1998, pending this Court’s

disposition of his Petition for a Writ of Certiorari. Mr.

Strickler is filing his Petition along with this Application.

Mr. Strickler requests a stay of execution from this Court

based on the reasonable probability that four Members of this Court

will consider the issues raised in Mr. Strickler’s petition

sufficiently meritorious for a grant of certiorari, the significant

possibility that this Court will reverse the decision below and

reinstate the district court decision granting the writ, and the

irreparable harm that will occur if his execution is not stayed.

See Barefoot yv. Estelle, 463 U.S. 880, 895 (1983). Mr. Strickler

has already sought a stay of execution from the Court of Appeals

for the Fourth Circuit. His application was denied on July 30,

1998.?

In his Petition, Mr. Strickler asks this Court to review one

issue addressing the state’s duty under the Due Process Clause and

Brady vy. Maryland 373 U.S. 83 (1963), and its progeny, to disclose

favorable evidence to the defense:

Whether the government’s duty under the Due Process

Clause and Brady v. Maryland, 373 U.S. 83 (1963), and its

progeny, to disclose favorable evidence is limited by a

due diligence exception imposed on defense counsel. If

so, is the due diligence exception applicable only to

evidence r-adily available to the defense in a public

forun.

1 A copy of the state court Order setting Mr. Strickler’s

execution date and a copy of the Fourth Circuit’s Order denying a

stay of execution are appended.

ii

This case raises an issue of critical importance: namely,

whether a due diligence exception to the prosecutor’s disclcsure

obligations under Brady is fundamentally inconsistent with this

Court’s Brady jurisprudence. If such an exception exists, is it

properly limited to that evidence known by or fully available to

the defense or is it limited to those cases where the defense

actually had all the information needed to produce the evidence

itself. Nine circuits have recognized such an exception in limited

circumstances. Two circuits have explicitly rejected any such

exception.

In contrast, the Fourth Circuit has adopted a broad exception

that swallows the constitutional rule. In Strickler v. Pruett,

No. 97-29 (4th Cir. June 17, 1998), the Fourth Circuit excused the

prosecutor’s failure to disclose impeachment material on a key

prosecution witness held in nonpublic, police files on the grounds

that defense counsel failed to make a post-conviction discovery

motion, even though defense counsel had no factual or legal basis

for such a motion. The Court reached this result while ignoring

the state’s representations first at trial and then in post-

conviction proceedings that all Brady material had been disclosed

in the trial prosecutor’s “open file." The decision in Strickler

was not an aberration but was the logical extension of the Court’s

progressive retreat from Brady set out in Epperly v. Booker, 997

F.2d 1 (4th Cir. 1993), Barnes v. Thompson, 58 F.3d 971 (4th Cir.

1995), and Hoke vy. Netherland, 92 F.3d 1350 (4th Cir. 1996).

Unlike those cases, however, the evidence in Strickler’s case was

iii

never available to defense counsel, and thus not discoverable, in

any public forum.

The Fourth Circuit’s decision is contrary to this Court’s

decisions in Brady, Kyles v. Whitley, 115 S. Ct. 1555 (1995), and

United States v. Bagley, 473 U.S. 667 (1985). The decision of the

Fourth Circuit conflicts sharply with the decisions of every other

circuit interpreting Brady in light of any due diligence exception.

It also conflicts with this Court’s long established decisions on

procedural default. Dobbs v. Zant, 113 S. Ct. 835 (1993); Coleman

yv. Thompson, 501 U.S. 722 (1991); Amadeo yv. Zant, 486 U.S. 214

(1988).

In sum, review by this Court is required to resolve the sharp

split among the lower courts regarding the duties and obligations

of the government under Brady and its progeny. The issue posed in

Mr. Strickler’s case 1s of great significance to the fair and

uniform administration of criminal prosecutions, both capital and

noncapital, throughout the United States. For these reasons and

those set forth in the pending petition for certiorari, there is a

significant possibility that this Court would reverse the decision

below.

The final factor for the Court to consider is whether

irreparable harm is likely to result if the decision is not stayed.

Mr. Strickler will die on September 16, 1998 -- just 64 days after

the Court of Appeals on July 14, 1998, denied rehearing on his

first habeas petition -- unless the Court grants a stay of

execution. Because the proceedings have been expedited by the

iv

Commonwealth, Mr. Strickler’s imminent execution date will prevent

this Court from considering Mr. Strickler’s petition with the level

of care that would have been possible but for the Commonwealth’s

rush to execute Mr. Strickler.

Mr. Strickler objected below that the proposed date unfairly

truncated his time to seek relief from the U.S. Supreme Court and

directed the courts’ attention to Breard v. Angelone, 118 S. Ct.

1352 (April 18, 1998), discussed below. Respondent maintained that

any relief in the form of a stay must come from this Court. The

state circuit court entered an Order setting the execution as

requested. The setting of a September date deprives Mr. Strickler

of nearly one-third of the time allowed by the United States

Supreme Court Rules to prepare and present a petition for a writ of

certiorari. In this abbreviated time, not only must Mr. Strickler

prepare and present a petition for writ of certiorari, but the

Justices of this Court must review, consider, and rule on the

issues therein. By setting this date, the State seeks to unfairly

disadvantage Mr. Strickler and this Court in their abilities to

adequately present and consider his claims from a first federal

habeas petition by denying him the time which this Court has

established as appropriate for those proceedings.

Most recently, in Breard v. Angelone, 118 S. Ct. 1352 (April

14, 1998), three Justices wrote individually to express their

displeasure with the Commonwealth’s practice:

The Court of Appeals’ decision denying petitioner’s

first application for a federal writ of habeas corpus

became final on February 18, 1998. Under this Court’s

Rules, a timely petition for a writ of certiorari to

Mw

review that decision could have been filed as late as May

19, 1998. See Rule 13.1 ("[{A} petition for a writ of

certiorari to review a judgment in any case, civil or

criminal, entered by .. . a United States court of

appeals .. . is timely when it is filed with the Clerk

of this Court within 90 days after entry of the

judgment"). Ordinary review of that petition pursuant to

our Rules would have given us additional time thereafter

to consider its merits in the light of the response filed

by the Commonwealth of Virginia. We have, however, been

deprived of the normal time for considered deliberation

by the Commonwealth’s decision to set the date of

petitioner’s execution for today. There is no compelling

reason for refusing to follow the procedures that we have

adopted for the orderly disposition of noncapital cases.

Id. at 1356-57 (Stevens, J., dissenting from denial of certiorari).

{A]s Justice Stevens points out, Virginia is now

pursuing an execution schedule that leaves less time for

argument and for Court consideration than the Court’s

rules provide for ordinary cases. Like Justice Stevens,

I can find no special reason here to truncate the period

of time that the Court’s rules would otherwise make

available.

Id. at 1357 (Breyer, J., dissenting from denial of certiorari).

I would grant the application for a stay of

execution in order to consider in the ordinary course the

instant petition, Breard’s first federal petition for

writ of habeas corpus.

Id. (Ginsburg, J., dissenting from denial of certiorari).

————— —

vi

In order to give this Court the appropriate time to provide

considered deliberation of the issues presented, the stay of

execution should be granted to provide the Justices of this Court

sufficient time to consider a petition for writ of certiorari on

Mr. Strickler’s first federal habeas corpus petition in this

capital case.

WHEREFORE, for the reasons stated above and in his Petition

for a Writ of Certiorari, Tommy David Strickler respectfully moves

for a stay of his execution currently set for September 16, 1998.

Respectfully submitted,

Hecheg

BARBARA L. HARTUNG ;

(Counsel of Record)

1001 East Main Street

Suite 504

Richmond, VA 23219

(804) 649-1088

MARK E. OLIVE

Virginia Capital Representation

Resource Center

1001 East Main Street

Suite 510

(804) 643-6850

Counsel for Petitioner

Tommy David Strickler

August 31, 1998

IN THE CIRCUIT COURT OF AUGUSTA COUNTY

VIRGINIA:

COMMONWEALTH OF VIRGINIA,

v.

TOMMY DAVID STRICKLER,

ORDER ; Judge

Pursuant to Section 53.1-232.1 of the Code of Virginia, having determined that the United

I ask for this:

States Court of Appeals for the Fourth Circuit has denied habeas corpus relief to the defendant, this

Court hereby ORDERS that the death sentence of Tommy David Strickler be carried out on the 16* Aca

day of September, 1998, at such a time of day as the Director of the Department of Corrections 's Attomey

one. Seen and objected to A True and Copy, Lr

It is further ORDERED that at least ten (10) days before September 16, 1998, the Director Teste:

shall cause a copy of this Order to be delivered to the defendant and, if the defendant is unable to Coe Z. WA of Augusta, Virginia

read it, cause it to be explained to him. The Director shall make return thereof to Ce Clerk of this \—— 733/

Court.

The Clerk is directed to promptly furnish certified copies of this Order to the following

persons:

Ronald J 1¢, Director

of Corrections

P.O. Box

6900 Atmore Drive

Richmond, Virginia 23261

The Honorable Lee Ervin

Commonwealth's Attorney

6 Bet 3rd Floor

Staunton, 24401-4303

Barbara

1001 East Main Street, Suite 504

FILED: July 30, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-29(L)

(CA-95-924-3)

TOMMY DAVID STRICKLER,

Petitioner - Appellee,

versus

FRED W. GREENE, Warden, Mecklenburg

Center

Petitioner has filed a motion for stay of the mandate and for a stay of execution

and respondent filed a response in opposition to the motion.

The Court denies petitioner's motion for stay of the mandate and for a stay of

Entered at the direction of Judge Hamilton with the concurrence of Judge

Niemeyer and Judge Luttig.

For the Court

i Fouicie 8. Sennct_—___.

os Eas ee

CERTIFICATION

I hereby certify that two copies of the enclosed Application

For A Stay Of Execution were served by hand on counsel for

Respondent, Pamela Rumpz, Assistant Attorney General, Office of the

Attorney General, 900 E. Main Street, Richmond, VA 23219 on

ald te

—

_ wae STATES COURT OF pa

FOR THE FOURTH CIRCUIT

FILED

July 14, 1998

No. 97-29

CA-95-924-3

TOMMY DAVID STRICKLER

Petitioner - Appellee

v.

FRED W. GREENE, Warden, Mecklenburg Correctional Center

Respondent - Appellant

No. 97-30

CA-95-924-3

TOMMY DAVID STRICKLER

Petitioner - Appellant

v.

FRED W. GREENE, Warden, Mecklenburg Correctional Center

Respondent - Appellee

The appellee/cross-appellant’s petition for rehearing and

Suggestion for rehearing in banc were submitted to this Court. As no

member of this Court or the panel requested a poll on the suggestion

for rehearing in banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and suggestion for

rehearing in banc are denied.

For the Court,

/s/ Patricia S. Connor

CLERK

FILED: July 30, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH C'RCUIT

No. 97-29(L)

(CA-95-924-3)

TOMMY DAVID STRICKLER,

Petitioner - Appellee,

versus

FRED W. GREENE, Warden, Mecklenburg

Correctional Center,

ORDER

Petitioner has filed a motion for stay of the mandate and for a stay of execution

and respondent filed a response in opposition to the motion.

The Court denies petitioner's motion for stay of the mandate and for a stay of

_ _.__. execution. ;

Entered at the direction of Judge Hamilton with the concurrence of Judge

Niemeyer and Judge Luttig.

For the Court

ls/ Patricia S. Connor __

Me EE as ee »

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Tommy David STRICKLER,

Petitioner-Appellee,

: - , No. 97-29

SamueL V. Pruett, Warden,

Mecklenburg Correctional Center,

Respondent-Appellant.

—— ee wr.

Tommy Davin STRICKLER,

Petitioner-Appellant,

sng , No. 97-30

Samuet V. Pruett, Warden,

Mecklenburg Correctional Center,

Respondent-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

( A-95-924-3)

Argued: March 6, 1998

Decided: June 17, 1998

} Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions by

ne a ae ea Judge Luttig wrote a_separate state-

2 STRICKLER v. PRUETT

COUNSEL

ARGUED: Pamela Anne Rumpz, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellant. Barbara Lynn Hartung, Richmond, Virginia, for Appellee.

ON BRIEF: Richard Cullen, Attorney General of Virginia, OFFICE

OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-

lant. Mark E. Olive, VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER, Richmond, Virginia, for Appellee.

i

Unpublished opinions are not binding precedent ir this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

The petitioner, Tommy David Strickler, applied for a writ of

habeas corpus in the United States District Court for the Eastern Dis-

trict of Virginia following his conviction and death sentence for capi-

tal murder in the Circuit Court of Augusta County, Virginia. See 28

U.S.C. § 2254.' The district court granted the writ, reasoning that

Strickler’s rights under Brady v. Maryland, 373 U.S. 83 (1963), were

violated when the prosecutor failed to disclose certain evidence at

Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the

pe an aegypti Bede derma See

Lindh v. Murphy, 117 S. Ct. 2059, 2068 ays dea svier ore gh

oo See eer Sere a Doe habeas petitions,

pF Boo Ab salen ger Per np oe petitions pending on the date of the

AEDPA's enactment). As to the ee ees See

applying to capital petitioners, we need not decide whether these amend-

ments apply in this case because Strickler’s claims are either procedur-

ally defaulted or meritless under the more lenient pre-existing standards.

Indeed, we are confident the AEDPA is of no help to Strickler.

¢

) fs

STRICKLER v. PRUETT 3

trial. The Commonwealth of Virginia (the Commonwealth), acting

through one of its wardens, appeals this ruling. In his cross-appeal,

Strickler appeals the district court’s dismissal of his claim that the

Virginia Supreme Court's proportionality review of his death sen-

tence was constitutionally deficient. Although the district court cor-

rectly dismissed Strickler’s proportionality review claim, the district

court erred when it granted Strickler relief under Brady. Accordingly,

we affirm in part, vacate in part, and remand with instructions to dis-

miss the petition.

In 1990, Strickler was convicted of, inter alia, the capital murder

of Leanne Whitlock. As recounted by the Virginia Suprerive Court on

direct appeal, the facts surrounding Whitlock’s murder are:

On January 5, 1990, Leanne Whitlock (Leanne), a sopho-

more at James Madison University, borrowed a 1986 Mer-

cury Lynx from her boyfriend, who worked at the Valley

Mall in Harrisonburg. The car was clean at the time. Leanne ~

left the Mall at 4:30 p.m. and, with her roommate, Sonja

Lamb, drove to a store, where Leanne had a part-time job,

to pick up a paycheck. Leanne dropped Sonja off about 6:45

p.m. and lefi, alone, to return the borrowed car to her boy-

friend.

Anne Stolzfus was in a store at Valley Mall with her daugh-

ter at 6:00 p.m. when Strickler, Ronald Henderson, and a

blond woman entered. Strickler was behaving in such a

loud, rude, and boisterous manner that she watched him

with some apprehension. He was dressed in casual, but

clean, clothing.

As Mrs. Stolzfus was leaving the mall soon thereafter, she

saw Leanne Whitlock driving the blue Mercury. Suddenly,

Strickler ran out of the mall and addressed the occupant of

a nearby van, angrily pounding on the van’s door. Strickler

also ran up to the Occupants of a pick-up truck. He then

turned to the Mercury that Leanne was driving, which was

stopped in traffic, and pounded on the passenger side win-

STRICKLER v. PRUETT

SrrickLer v. Pruett

dow. Leanne leaned over as if to lock the door, but Strick-

ler wrenched the door open and jumped into the car, facing

Leanne. She appeared to try to push him away, but he

opened the door and beckoned Henderson and the blond

woman to join him.

Leanne accelerated and began sounding blasts on the horn.

Strickler struck her repeatedly and she ceased to sound the

horn and stopped the car. Henderson and the blond woman

entered the back seat. Mrs. Stolzfus came up to the car and

asked, three times, “are you O.K.?" Leanne seemed “totally

frozen." She drove the Mercury away very slowly, and

mouthed the word, “help.” The Mercury headed east on

Route 33, toward Elkton. Mrs. Stolzfus’ daughter wrote

down its license number, West Virginia NKA 243.

About 7:30 p.m., Kurt D. Massie and a friend were driving

north on Route 340 near Stuarts Draft. They saw a dirty blue

car, southbound, turn off and drive into a field. Strickler was

the driver, a white woman was in the front seat with him,’

and another man was in the back seat. Massie thought he

saw a fourth occupant in the car.

Between 9:00 and 9:15 p.m., Strickler and Henderson

walked into Dice’s Inn in Staunton. Strickler was wearing

blue jeans which were dirty, bloody, and had a burn mark

on them. He gave a wristwatch, later identified as the prop-

erty of Leanne Whitlock, to a girl named Nancy Simmons.

At 12:30 or 1:00 a.m., Strickler left Dice’s Inn with Hender-

in a fight and had injured his knuckle, which appeared to be

lacerated. Strickler and Henderson discussed a “fight” they

Strickler said they had kicked “it” in the back of the head

and had used a “rock crusher.” He said "it" would give them

no more trouble. Strickler was calm during this conversa-

tion, but Henderson seemed nervous and kept looking over

his shoulder at them. The three drove to Harrisonburg to

purchase drugs. During the ride, Henderson nearly collided

head on with an approaching car, and Strickler drew a knife

and threatened to stab him.

After dropping Henderson off in Harrisonburg, Donna

Tudor went to Virginia Beach with Strickler in the blue

Mercury. The two stayed nearly a week, during which time

Donna saw Leanne Whitlock’s driver's license, identifica-

tion card, and bank card in the car. Strickler tried to use the

bank card in Virginia Beach, and gave Donna a pair of ear-

rings which Leanne had worn on the night of January 5.

Several days later, Donna and Strickler returned to Strick-

ler’s mother’s home in New Market. Strickler’s mother

washed his blood-stained blue jeans and his shirt.

Strickler told Donna to hide Leanne's three identification

cards in a bag with his T-shirt and other clothing. She

deposited these items in an abandoned car near Strickler’s

stepfather’s house, but later led police to them.

searched the field and found Leanne's frozen clothing in a

6 STRICKLER Vv. PRUETT

covered with leaves which had been deliberate!

around the logs. dnens

STRICKLER V. PRUETT 7

Strickler v. Commonwealth, 404 S.E.2d 227, 230-32 (Va. 1991).

On February 27, 1990, Strickler was charged with grand larceny,

robbery, and abduction in Rockingham County.’ That same day,

Strickler was indicted by an Augusta County grand jury for the rob-

bery and abduction of Whitlock.’ On April 23, 1990, Strickler was

indicted by an Augusta County grand jury for the capital murder of

Whitlock. Following a jury trial in Augusta County Circuit Court,

Strickler was convicted of all three charges. The jury fixed Strickler’s

punishment at life imprisonment for the robbery and abduction con-

skull 7 eietne Som ae beh font victions. In the bifurcated proceedi jury heard evidence i

brain. Brain tissue exuded ' ng, the jury in

pong pat caredhen gerne Aine hag wor hap ebm sated aggravation and mitigation of the capital murder conviction. Based

instantaneous. been fatal, but death was not upon findings of Strickler’s future dangerousness and the vileness of

the crime, the jury fixed Strickler’s sentence at death. The trial court

Near the body, the police found a large rock, weighing 69 sentenced Strickler in accordance with the jury's ts

tines ys with humen blood in Strickler appealed his convictions and sentences to the Virginia

ee Peers ne en en ep oe Supreme Court, and that court affirmed. See Strickler v.

Commonwealth, 404 $.E.2d 227 (Va. 1991). On November 4, 1991,

the Supreme Court of the United States denied Strickler’s petition for

Beside the rock, there were two indentations in the frozen ~orter ro

ground, one four inches deep, the other les. Each ind ‘ writ of certiorari. See Strickler v. Virginia, S02 U.S. 944 (1991).

human petemees patame's ees wen, es well os | Strickler then sought state collateral relief in the Circuit Court for

eee ah ogee pe: el ce ag ae | County. In September 1993, the circuit court dismissed

wun Chesesten ts tte, enloodae clothing. They Strickler’s state habeas petition. The Virginia Supreme Court granted

ssapects. Some of thom had ovidenth Swickler’s hair in all a limited appeal to address whether: (1) the state habeas court erred

head by the roots. been tam ous of Ms in refusing to vacate Strickler’s capital murder conviction because of

3 an exvenaves capleal enender Jury instrection; end (2) We Wi cored

sels’ failure to object to capital murder jury instruction rendered

ee eee — om the reel of the Mercury his trial counsels’ performance constitutionally ineffective. The Vir-

—— Wee wenmng when be wen anteted ginia Supreme Court found the former claim y defaulted

; + theme > Eighteen of his fingerprints, and nine of under state law, See Strickler v. Murray, 452 S.E.2d 648, 651 (Va.

ee ee ee a eee a 1995). As to the latter claim, the court found that Strickler was not

wearing Jan , failed to meet his burden of showing that, but for trial counsels’ error,

Seanlcs tanten tone tain how ety oe :

semen consistent with Whitlock abducted in Rockingham County murdered

aden fom Lowas's Baty sito ~ i Pen toy . - ws

's showed the presence of - : aK,

semen, but its type was not identified. | ee ) a ee

s Sraickier vy. Pruett

the result of the proceeding would have been different. See id. at 652-

53. On October 2, 1995, the Supreme Court of the United States

denied Strickler’s petition for writ of certiorari. See Strickler v.

Angelone, 516 U.S. 850 (1995).

On March 5, 1996, Strickler filed a petition for writ of habeas cor-

pus in the United States District Court for the Eastern District of Vir-

for summary On October 15, 1997, the district court

granted Swrickler’s motion for summary judgment and denied the

Commonwealth's cross-motion for judgment. The district

STRICKLER V. Pruetr )

Brady claim is procedurally defaulted and that Strickler has nct estab-

lished cause and prejudice to excuse the procedural default. Second,

pn Commonwealth contends that Strickler's Brady claim fails on the

ts.

Swickler's Brady claim was never presented to the Virginia state

courts. Strickler’s failure to raise the claim in state court brings into

play the doctrines of exhaustion and procedural default.

In the interest of giving the state courts the first opportunity to con-

sider alleged constitutional errors occurring in a state prisoner's tral

and sentencing, a state prisoner must exhaust all avail State reme-

dies before he can for federal habeas relief. See Matthews v.

Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, 118 8. Ct. 102

(1997); see also 28 U.S.C. § 2254(b). To exhaust state remedies, a

habeas petitioner must fairly present the substance of his claim to the

state’s highest court. See Matthews, 105 F.3d at 911. The exhaustion

is not satisfied if the petitioner presents new legal theo-

ries or factual claims for the first time in his federal habeas petition.

See id. The burden of proving that a claim is exhausted lies with the

habeas petitioner. See Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.

>

distinct but related limit on the scope of federal habeas review

= Se Een gees Smee | a State court clearly and

expressly bases its of a habeas petitioner's claim on a state

procedural rule, and that rule provides an independent and

ally defaulted his federal claim. See Coleman v. on,

501 U.S. 722, 731-32 (1991). A procedural default also occurs when

a habeas petitioner fails to exhaust available state remedies and ‘the

court to which the would be required to present his claims

in order to meet exhaustion requirement would now find the

claims procedurally barred." Jd. at 735 n.1. We may excuse a .

dural default if the petitioner “can demonstrate cause for the default

and actual prejudice as 4 result of the alleged violation of federal law,

or demonstrate that failure to consider the claim( } will result in a fun-

damental miscarriage of justice.” /d. at 750."

Defers Gis coun, Sulshior bes eet auemasted to eowhlich thes ov

refusal to address his Brady claim would result in a “mis. «age of jus-

tice.” Accordingly, we do not address the “miscarriage of » stice” excep-

10 Srricxier v. Pruett

Under Virginia law, “a petitioner is barred from raising any claim

in a successive petition if the facts as to that claim were either known

or available to petitioner at the time of his original petition." Hoke v.

Netherland, 92 F.3d 1350, 1354 n.1 (4th Cir.) (internal quotes omit-

ted), cert. denied, 117 S. Ct. 630 (1996); Va. Code Ann. § 8.01-

654(B)(2) ("No writ [of habeas corpus ad subjeciendum] shall be

granted on the basis of any allegation the facts of which petitioner had

knowledge at the time of filing any previous petition.”). Thus, resolu-

tion of the question of whether Suickler’s Brady claim is procedurally

defaulted turns on whether the factual basis of Strickler’s Brady claim

was available to him at the time he filed his state habeas petition.

We begin our discussion with a summary of the facts surrounding

Strickler’s Brady claim. Prior to wial, Detective Dan Claytor of the

Harrisonburg Police Department interviewed Stolzfus on approxi-

mately five oecasions. Detective Claytor took notes during, and typed

reports of, his interviews with Stolzfus and received letters and “sum-

maries” from Stolzfus. These documents, referred to by the parties as

the “Stolzfus materials,” were kept in Harrisonburg Police Depart-

ment files.

On the day before trial, an article appeared in the Roanoke Times

STRICKLER Vv. Pruett 11

features of the three and their clothing. After Stoizfus left the store,

she again encountered the trio inside the Valley Mall and spoke

briefly to the woman. Shortly thereafter, Stolzfus and her daughter got

into their car and stopped in the Valley Mall parking lot when a car

came by. The driver was a black woman. Stolzfus described her as a

“rich college kid,” “beautiful,” "well dressed,” “happy,” “singing,” and

“bright eyed.” Stolzfus testified she got a good look at her and identi-

fied the driver as Whitlock.

Whitlock pulled in front of Stolzfus and stopped for traffic. The

“revved up” man from the music store, whom Stolzfus later identified

as Strickler, came out of the Valley Mall and banged on vehicles in

front of Whitlock’s car. He then pounded on Whitlock’s passenger

side window, yanked the car door open, and sat facing her. She tried

to push him away. The second man and the blond woman, seen earlier

in the Valley Mall, tried to enter the car also. Whitlock accelerated

and “laid on the horn.” Strickler hit Whitlock repeatedly on her shoul-

der and head. When the car stopped, Strickler opened the passenger

door, and the other two got into the backseat. The second man, later

identified as Henderson, handed his coat to Strickler who put it on the

floor and “fiddled with it [for] what seemed like a long time.”

Stolzfus pulled parallel to Whitiock’s car, got out, and walked over

to look. Henderson “laid over on the seat to hide from" Stolzfus.

Stolzfus returned to her car, faced Whitlock, and then asked her three

times “are you O.K." Each time Whitlock looked at Stolzfus and then

down to her right. Whitlock mouthed a word that Stolzfus did not

understand. She then realized that Whitlock had said “help.” Stolzfus

pulled away and told her daughter to go inside the Valley Mall and

get security. The daughter refused. Whitlock drove past Stolzfus very

slowly, “ up over the curb . . . so the car really tilted,” and “laid

went

on the horn again.” Stolzfus told her daughter to write the license

number down on an index card. Stolzfus remembered the plate, West

Virginia NKA 243, with a trick, "No Kids Alone 243.""

not

"For reasons not entirely clear from the record, Stolzfus did not report

the incident to law enforcement. However, the record does reflect that

12 STRICKLeR v. PrueTt

On state habeas, Strickler did assert an ineffective assistance of

counsel claim based on counsels’ failure to file a Brady motion,

although it is unclear from the record what formed the factual basis

for this claim. The Commonwealth opposed the motion on the basis

open file policy. However, Strickler did not request to examine the

police files of the Harrisonburg Police Department, notwithstanding

Stolzfus’ trial testimony that she was interviewed by Detective Clay-

tor on several occasions and Virginia Supreme Court Rule 4;1(b)(5)

which allows, with prior leave of court, discovery on all relevant mat-

ters that are not privileged.

On federal habeas, Strickler served interrogatories and subpoenaed

documents from various police and prosecution files. Pursuant to a

subpoena, Strickler obtained the Stolzfus materials from the Harrison-

burg Police Department files. Pursuant to another subpoena, Strickler

obtained all materials concerning Stolzfus in the current custody of

the Augusta County Commonwealth's attorney's office. The prosecu-

tor’s file contained Exhibits two, seven, and eight, but did not contain

Exhibits one and three through six.®

Los ae utidavit that he had never seen any of the Stolzfus materials

to, or during, Strickler’s trial, not the file . Simi-

larly, Humes J. Franklin, Jr., atrecll mee 2 rok yey Bh aff.

davit that he had no recollection of seeing any of the Stolzfus materials

in Ervin's files. However, Thomas Roberts, Strickler’s other trial coun.

sel, stated in his affidavit that, although he could not recall if he had seen

—~—+~ —_—ee

STRICKLER v. Pruett 13

As noted above, the Stolzfus materials appear as Exhibits one

through eight to an affidavit submitted in the district court by Bobbitt.

Exhibit one is a one-page document containing Detective Claytor’s

hand-written notes of his initial January 19, 1990 interview with

Stolzfus. The notes reveal that Stolzfus could not identify Whitlock;

could identify the blond woman; and indicated that Henderson was

tall, had black hair, and wore a cream colored jacket. Exhibit two is

a six-page, typed report of Detective’s Claytor’s interviews with

Stolzfus on January 19 and 22, 1990. The report contains a detailed

summary of Stolzfus’ account of Whitlock's abduction. However,

Detective Claytor’s report notes that Stolzfus was not sure if she

could identify Strickler and Henderson, although Stolzfus indicated

she might if she saw Strickler and Henderson in person. Exhibit two

also notes that Stolzfus was taken to the police impound lot on Janu-

ary 24, 1990, and shown the car Whitlock had been driving. Accord-

ing to the report, the next day Stolzfus advised police that she now

recalled the license number, NKA 243, and “had made up a code to

help remember the license number after the incident, ‘No Kids After

243,""

Exhibit three entitled "Observations" was given to Detective Clay-

tor by Stolzfus on January 19, 1990, at 1:00 p.m. In this exhibit,

Stolzfus describes the abduction with a set of diagrams.

Exhibit four is a typed letter, dated January 22, 1990, to Detective

Claytor signed by Stolzfus. In this letter, Stolzfus explains that

although she did not initially remember being at the Valley Mall on

the evening Whitlock was abducted, her memory was “jogged” when

her daughter reminded her of a small purchase at a shop in the Vailey

Mall. In this exhibit, Stolzfus also explains that she was uncertain

about portions of the events she witnessed the evening of Whitlock's

abduction:

closed to Strickler, his rights under Brady were violated. We need not

decide this factual dispute because, as discussed infra, Strickler’s Brady

claim is procedurally defaulted; Strickler has not established cause and

prejudice to excuse the default; and the claim is, in any event, without

merit.

14 STRICKLER v. PRUETT

I have a very vague memory that I'm not sure of. It seems

as if the wild guy that I saw had come running through the

door and up to a bus as the bus was pulling off. I have

impressions of intense anger, of his going back to where the

dark haired guy and girl were standing. Then the guy I saw

came running up to the black girl's window? Were those 2

memories the same person? .. .

Exhibit five is an undated, typed document entitled “Notes for

Detective Claytor: My Impressions of the Car.” In this exhibit, Stolz-

fus gives a description of the car driven by Whitlock, but does not

mention the license plate or the license plate number.

Exhibit six is a hand-written note to Detective Claytor from Stolz-

fus dated January 25, 1990, 1:45 a.m. In this note, Stolzfus reports

that she spent several hours with Whitlock's boyfriend viewing pho-

tographs and was certain Whitlock was the black girl she saw on Jan-

vary 5, 1990.

Exhibit seven is a typed two-page letter dated January 26, 1990, to

Detective Claytor and signed by Stolzfus. This letter contains a

description of Stolzfus’ encounter with Strickler, Henderson, and the

blond woman at the music store in the Valley Mall.

Exhibit eight is a three-page, typed document, undated and signed

by Stolzfus. The document is entitled “Details of Encounter with

Mountain Man, Shy Guy and Blond Girl.” This exhibit contains a

detailed description of Stolzfus’ encounter with Strickler, Henderson,

and the blond woman in the V» ley Mall and of Whitlock's abduction.

The summary of Whitlock’s abduction in this exhibit essentially mir-

rors her trial testimony and the facts set forth in the Roanoke Times

article.

now ere wt we

STRICKLER Vv. Pruett 15

of course, knew that Stolzfus was interviewed by Detective Claytor

on several occasions and had identified Strickler in a photo line-up.

In light of these facts, reasonably competent counsel would have

sought discovery in state court in order to examine the Harrisonburg

Police Department files concerning Stolzfus’ statements to Detective

Claytor. Upon such a simple request, it is likely the state court would

have ordered the production of the files. In other words, in state court,

Strickler could have followed a procedure similar to the one he fol-

lowed in federal court: Strickler could have filed a discovery motion

seeking to review the Harrisonburg police files, see Va. S. Ct. Rule

4:1(b)(S) (extending discovery, with prior leave of court, to all mat-

ters that are relevant and not privileged). His failure to do so results

in a procedural default of his Brady claim.

Having concluded that Strichicr’s Brady claim would be procedur-

ally defaulted if he attempted to raise it in state court at this time, we

can only address Strickler's Brady claim if he can demonstrate cause

and actual prejudice. See Coleman, 501 U.S. at 750. Objective factors

that constitute cause include “‘interference by officials’ that makes

compliance with the State's procedural rule impracticable, and ‘a

showing that the factual or legal basis for a claim was not reasonably

available to counsel."" McClesky v. Zant, 499 U.S. 467, 493-94

(1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see

also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988). Addi-

tionally, the novelty of a claim has been held to constitute cause. See

Reed v. Ross, 468 U.S. 1, 12-16 (1984); see also Dugger v. Adams,

489 U.S. 401, 407 (1989) (stating that cause may be established upon

demonstration that a constitutional claim is “so novel that its legal

basis is not reasonably available to counsel"). Finally, a petitioner

may establish cause by showing he received constitutionally ineffec-

tive assistance of counsel. See Coleman, 501 U.S. at 753; Murray.

477 U.S. at 488."

“Generally, “a claim of ineffective assistance [must] be presented to

the state courts as an independent claim before it may be used to estab-

lish cause for a procedural default.” Murray, 477 U.S. at 489; see also

Pruett v. Thompson, 996 F.2d 1560, 1570 (4th Cir. 1993). This is so

because allowing a petitioner to raise a claim of ineffective assistance of

counsel for the first time on federal habeas review in order to show cause

for a procedural default would place the federal habeas court “in the

16 STRICKLER v. PRUETT

Strickler asserts that the factual basis for his Brady claim was

unsvailable to him at the time he filed his state habeas petition and,

therefore, he has established cause for the procedural default. But, as

noted above, Strickler’s Brady claim was available to him in state

court through the exercise of reasonable diligence. As such, he cannot

establish cause based upon the unavailability of the Brady claim. See

Stockton v. Murray, 41 F.3d 920, 925 (4th Cir. 1994) ("Even if [the

petitioner] had not actually raised or known of the claims previously,

he still cannot establish cause to excuse his default if he should have

known of such claims through the exercise of reasonable diligence.").

Strickler also argues that his trial counsel were constitutionally

ineffective for failing to make a Brady motion at trial. If attorney

error amounts to constitutionally ineffective assistance of counsel

under the standard established in Strickland v. Washington, 466 U.S.

668 (1984), the Sixth Amendment dictates that the attorney's error

must be imputed to the state. See Coleman, 501 U.S. at 754. Accord-

ingly, Strickler may establish cause to excuse his procedural default

by showing trial counsel error that satisfies the standard set forth in

Strickland. See id. at 752. Under Strickland, a defendant is deprived

of the assistance of counsel guaranteed by the Constitution when

counsel's performance falls “below an objective standard of reason-

ableness" and “there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 688, 694.

In this case, Strickler’s trial counsels’ action did not fall below an

objective standard of reasonableness. In light of the prosecutor's open

file policy, trial counsel were under no obligation to file a Brady

motion. Cf. Smith v. Maggio, 696 F.°¢ 365, 367 (Sth Cir. 1983)

("Counsel had no duty to file pre-trial motions, because the prosecutor

established an open file policy that made filing of discovery motions

or Brady requests pointless.").

anomalous position of adjudicating an unexhausted constitutional claim

for which state court review might still be available” in contravention of

"{t}he principle of comity that underlies the exhaustion doctrine.”

Murray, 477 U.S. at 489. Strickler has satisfied this requirement by pre-

senting an ineffective assistance of counsel claim based on trial counsels’

failure to file a Brady motion to the state court on state habeas.

all

-_*

STRICKLER Vv. Pruett 17

Even if we were to with Strickler that cause exists to excuse

his procedural default, Strickler cannot establish prejudice. To estab-

lish “actual prejudice,” Strickler “must shoulder the burden of show-

ing, not merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial disadvan-

tage, infecting his entire trial with error of constitutional dimensions."

United States v. Frady, 456 U.S. 152, 170 (1982); Satcher v. Pruett,

126 F.3d 561, 572 (4th Cir.), cert. denied, 118 S. Ct. 595 (1997).

Under Brady and its progeny, the prosecution's failure to disclose

“evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irre-

spective of the good faith or bad faith of the prosecution." United

States v. Ellis, 121 F.3d 908, 914 (4th Cir.) (quoting Brady, 373 U.S.

at 87), cert. denied, 118 S. Ct. 738 (1998); accord Kyles v. Whitley,

514 U.S. 419, 431 (1995). However, evidence is material “only where

there exists a ‘reasonable probability’ that had the evidence been dis-

closed the result of the trial would have been different.” Ellis, 121

F.3d at 914 (quoting Wood v. Bartholomew, 516 U.S. 1, 5 (1995)) A

“reasonable probability" of a different result is shown when the gov-

ernment’s failure to disclose evidence “undermines confidence in the

outcome of the trial." Kyles, 514 U.S. at 434.

In our view, the Stolzfus materials would have provided little or no

help to Strickler in either the guilt or sentencing phases of the trial.

During either phase, Strickler never contested that he abducted and

robbed Whitlock. In fact, counsel for Strickler argued to the jury dur-

ing the guilt phase that they should convict Strickler of first degree

murder rather than capital murder because Henderson, rather than

Strickler, actually killed Whitlock. Thus, Stolzfus’ testimony was not

critical to the Commonwealth's case, especially in view of the over-

whelming evidence in the record, independent of Stolzfus’ testimony,

demonstrating that Strickler abducted and robbed Whitlock. During

the sentencing phase, Stolzfus' testimony was of no import. For the

future dangerousness aggravating circumstance, the parties focused

their arguments on Strickler’s prior criminal record, which included

approximately eleven prior convictions. As to the vileness predicate,

although the prosecutor did state the uncontested fact that Whitlock

was abducted, the focal point of his argument was on the use of the

sixty-nine pound boulder to crush and fracture Whitlock’s skull. In

18 StTrickLer v. Pruett

short, the failure to disclose any or all o. the Stolzfus materials does

not undermine our “confidence in the outcome of the trial." /d.

In summary, Strickler’s Brady claim is procedurally defaulted and

he has failed to establish cause and prejudice to excuse the default.

Accordingly, the district court erred when it granted the writ on

Strickler’s Brady claim."

In his cross-appeal, Strickler contends that the Virginia Supreme

Court's proportionality review of his death sentence was constitution-

ally inadequate. In response, the Commonwealth contends that this

claim is procedurally defaulted and that Strickler has not established

cause to excuse the procedural default. Alternatively, the Common-

wealth argues that the claim is without merit.

Strickler presented this claim for the first time in his state habeas

petition and it was found to be procedurally defaulted under the

authority of Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). In

Slayton, the Virginia Supreme Court held that claims that could have

been raised at trial or on direct appeal but were not cannot be consid-

ered on collateral review. /d. at 682. The district court held that

Strickler's proportionality review claim was procedurally defaulted

under Slayton and that Strickler failed to establish cause and actual

prejudice to excuse the default.

Absent cause and actual prejudice or a miscarriage of justice," a

federal habeas court may not review constitutional claims when a

state court has declined to consider their merits on the basis of an ade-

quate and independent state procedural rule. See Harris v. Reed, 489

"Even if we could get beyond the threshold question of procedural

default, for the same reasons why Strickler cannot demonstrate prejudice

to excuse the procedural default of his Brady claim, Strickler's Brady

claim fails on the merits.

"Because Strickler has not attempted to establish that our refusal to

address his procedurally defaulted proportionality review claim would

result in a miscarriage of justice, we do not address the miscarriage of

justice exception.

STRICKLER v. Pruett 19

U.S. 255, 262 (1989). Such a rule is adequate if it is regularly or con-

sistently applied by the state court, see Johnson v. Mississippi, 486

U.S. 578, 587 (1988), and is independent if it does not “depend{ } on

a federal constitutional ruling,” Ake v. Oklahoma, 470 U.S. 68, 75

(1985).

Under federal habeas law, we are not at liberty to question a state

court's application of a state procedural rule because a state court's

finding of procedural default is not reviewable if the finding is based

upon an adequate and independent state ground. See Harris, 489 U.S.

at 262; Barnes v. Thompson, 58 F.3d 971, 974 n.2 (4th Cir. 1995).

Because Slaytwa is an independent and adequate state ground, we can

consider only whether cause and prejudice exists to excuse the proce-

dural defe ult, not whether the state court correctly ae its own

law. See Harris, 489 U.S. at 262.

Strickler contends that he has established cause because he was

unable to raise his proportionality review claim until after the Virginia

Supreme Court conducted such a review and subsequently affirmed

his sentence on direct review. We disagree.

As noted earlier, objective factors that constitute cause include

‘interference by officials’ that makes compliance with the State's

rule impracticable, and ‘a showing that the factual or legal

basis for a claim was not reasonably available to counsel.’" McClesky,

499 U.S. at 493-94 (quoting Murray, 477 U.S. at 488). Findings of

the state court supporting its decision to apply the state procedural

default rule are entitled to a presumption of correctness in determin-

ing whether cause exists to excuse a procedural default. See 28 U.S.C.

§ 2254(d); Sumner v. Mata, 449 U.S. 539, 547 (1981); Stockton, 41

F.3d at 924.

An issue before the Virginia Supreme Court on direct appeal was

whether Strickler’s death sentence was “excessive or disproportionate

to the penalty imposed in similar cases, considering both the crime

and the defendant.” See Va. Code Ann. § 17-110.1(C)(2). Obviously,

Strickler was free to assert, and the Virginia Supreme Court was free

to entertain, a facial challenge to all proportionality review in the

Commonwealth of Virginia on direct appeal, prior to the Virginia

Supreme Court's proportionality review. Furthermore, Strickler was

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22 Srrickier v. Pruett

Whitlock was a black female, and a sophomore at James Madison

University when she was murdered. Whitlock was forcibly abducted

from a shopping mail parking lot in the early evening hours by Strick-

ler, a white adult male, and two white adult companions.

The three forced Whitlock to drive to a distant cornfield, where she

was apparently raped, and then killed with a 69-pound boulder. /d. at

231. According to the Virginia Supreme Court, whose findings in this

particular regard are not before us for review:

Leanne's hands were extended over her head and crossed at

the wrists. She had been dragged by the feet over the ground

face down at or shortly after the time of her death, leaving

long linear scratches on her upper body. There were lacera-

tions and abrasions on the face, neck, and thighs, some con-

Prior to [Whitlock’s} murder, the victim had been abducted

by strangers, was terrified and called for help, was driven to

a deserted field, was dragged, struggling, out of her car, was

stripped naked, beaten, kicked, and sexually assaulted.

ee

Sreicxier v. Pauerr 23

them no more trouble. /d. Strickler, his codefendant, and the third per-

son then drove back to the town where the murder occurred “to pur-

chase drugs.” /d.

Strickler was indicted for rebbery of not only Whitlock's vehicle,

but also other of her personal property, including her wristwatch, ear-

rings, and bank card. /d. at 230-31. Although Sunickler was indicted

and apparently convicted for robbery of Whitlock’s vehicle. it is

unclear whether Whitlock’s vehicle was stolen principally for the

value of the car itself or instead as a get-away vehicle; the suggestion

is that the latter was the purpose. See Strickler v. Commonwealth, 404

S.E.2d 227, 230 (Va. 1991) (Suddenly, Strickler ran out of the mall

and addressed the occupant of a nearby van, angnly pounded on the

van's door. Strickler also ran up to the occupants of a pick-up truck.

He then turned to the Mercury Leanne was driving, which was

stopped in traffic, and pounded

Apart

on

from the dissimilarity of the circumstances between my

dads murder and Whitlock’s murder, to my knowledge the issues

presented by this appeal under Brady v. Maryland, 373 US. 83

(1963), bear no resemblance in any cespect to any of the issues raised

by any of those convicted of my dad's murder in any of their proceed-

ings to date. Indeed, insofar as | am aware, there has never been

raised an issue of changing eye-witness testimony or the improper

withholding of exculpatory evidence in any of the appeals from the

convictions for my dad's murder.

the passenger side window .").

the factual and legal dissimilarities

the appeals from the ensuing convic-

hand, and Leanne Whitlock's murder and the instant

reasonably surmised might bear upon the disposition of

, 1

Netherland, 92 F.3d 1350 (4th Cir.) (Luttig, J.), cert. denied, 117 S.

(1996); 97-8 (4th Cir, Apr. 10, 1997)

(Luttig, J., single Circuit Judge) (staying district court's ex parte grant

9

g

;

E

ES

24 SrrRickLer v. Pruetr

of pre-petition discovery to state prisoner); Jn re Pruett, 133 F.3d 275

(4th Cir. 1997) (Hall, J., joined by Luttig and Motz, JJ.).

Because of the time that has elapsed since my dad's murder; the

dissimilarity of the circumstances surrounding my dad's and Leanne

Whitlock’s murders; and the lack of any overlap in the legal issues

presented in the appeals of the two cases, | do not believe that it can

reasonably be maintained either that I cannot impartially sit in judg-

ment of this appeal or that my impartiality can fairly be questioned.

Nor, any more than recusal from discrimination cases should be

required by judges who themselves, or whose families, have been

subjected to invidious racial or sexual discrimination, do | believe that

my recusal is required from thi. and al! other murder cases for the

reason alone that my dad was ‘the victim of a murder.

The purpose of section 455 is not to require recusal from the courts

of all who have experienced the fullness of life — good and bad; and

certainly its purpose is not to enable forum shopping by parties to liti-

gation. Rather, its purpose is only to ensure that the matters before the

courts are decided by a judiciary that is impartial both in fact and in

appearance. | do not believe that this indisputably important purpose

is, in any way, compromised or disserved by my participation in this

case. As I have earlier stated in open court, capital defendants are

entitled to fair and impartial consideration of their claims by me when

I am randomly seiected to serve on the panel hearing their cases. Nei-

ther before nor after my dad's murder have they received less.

EXHIBIT

A

IN THE UNITED STATES DISTRICT COUR

FOR THE EASTERN DISTRICT OF VIRGIN

RICHMOND DIVISION us :

TOMMY DAVID STRICKLER, CERN MOND. VA Dy

4 .

Petitioner,

Civil Action

Vv. No. 3:95cv924

J.D. NETHERLAND, Warden,

Respondent.

ORDER

The Court is in receipt of the respondent's motion to dismiss

petitioner’s habeas corpus petition. For the reasons stated in the

Memorandum this day filed and deeming it just and proper so to do,

it is hereby ADJUDGED and ORDERED, that the Court grants

respondent's motion to dismiss with respect to claims

B(10),C,E,G,H,1I,K,L,M,0,P,Q,R,T, and V.

The Court grants an evidentiary hearing on the remainder of

petitioner’s claims.

Let the Clerk send copies of this Order to counsel of record.

DEC | 0 1996

Ke Mekee !

EXHIBIT

IN THE UNITED STATES DISTRICT eC Te GN ae

FOR THE EASTERN DISTRICT OF VIRGIN! ot

RICHMOND DIVISION wy

TOMMY DAVID STRICKLER, | Mee Fa sat Lyd

Petitioner,

Civil Action

No. 3:95CV924

ee eee eee ee ee

MEMORANDUM

On September 19, 1990 the Circuit Court of Augusta County

found Tommy David Strickler guilty of the capital murder of

Leanne Whitlock. Pursuant to 28 U.S.C. § 2254 Strickler filed a

Petition for a Writ of Habeas Corpus and an Amended Petition for

a Writ of Habeas Corpus against Respondent J.D. Netherland,

Warden of Mecklenberg Prison. This matter comes before the Court

on Respondent’s motion to dismiss Strickler’s petition for

failure to state a claim pursuant to Rule 12(b) (6) of the Federal

Rules of Civil Procedure. The motion has been fully briefed by

the parties and is ripe for decision.

BACKGROUND

1. Procedural History:

On February 27, 1990 the Circuit Court of Augusta County,

Virginia charged Strickler on one count of abduction and one

count of robbery. On April 23, 1990 the court indicted him for

capital murder. Strickler pleaded not guilty to all charges.

Strickler was tried by a jury before the Circuit Court of Augusta

County (J.Wood) and found guilty of capital murder, robbery ,and

abduction. The jury sentenced him to two life sentences and to

death on June 21, 1990, and the judge upheld the sentence in the

sentencing hearing on September 19, 1990.

On April 19, 1991 the Virginia Supreme Court upheld

Strickler’s conviction and sentence in Strickler v. Commonwealth,

404 S.E.2d 227 (1991). The United States Supreme Court denied

his petition for a writ of certiorari. Subsequently, Strickler

filed a petition for a writ of habeas corpus in the Circuit Court

of Augusta County. The court dismissed the petition in full

without an evidentiary hearing on September 10, 1993. The

Virginia Supreme Court granted certiorari with respect to limited

issues, but denied the petition on January 13, 1995. Strickler v.

Netherland, 452 S.E.2d 648 (1995). Strickler’s petition for a

writ of certiorari to the United States Supreme Court was denied

on October 2, 1995. On March 5, 1996 Strickler filed his federal

habeas corpus petition in this Court.

Factual Background

In affirming Strickler’s conviction and sentence on direct

appeal, the Virginia Supreme Court stated the facts of the case |

as follows:

On January 5, 1990, Leanne Whitlock (Leanne), a sophomore at

James Madison University, borrowed a 1986 Mercury Lynx from her

boyfriend, who worked at the Valley Mall in Harrisonburg. The

car was clean at the time. Leanne left the mall at 4:30 p.m.

and, with her roommate, Sonja Lamb, drove to a store, where

Leanne had a part-time job, to pick up a paycheck. Leanne *486

dropped Sonja off about 6:45 p.m. and left, alone, to return the

borrowed car to her boyfriend.

Anne Stolzfus was in a store at Valley Mall with her

daughter at 6:00 p.m. when Strickler, Ronald Henderson, and a

blond woman entered. Strickler was behaving in such a loud,

rude, and boisterous manner that she watched him with

some apprehension. He was dressed in casual, but clean,

clothing.

As Mrs. Stolzfus was leaving the mall soon thereafter, she

saw Leanne Whitlock driving the blue Mercury. Suddenly,

Strickler ran out of the mall and addressed the occupant of a

nearby van, angrily pounding on the van's door. Strickler also

ran up to the occupants of a pick-up truck. He then turned to

the Mercury Leanne was driving, which was stopped in traffic, and

pounded on the passenger side window. Leanne leaned over as if

to lock the door, but Strickler wrenched the door open and jumped

into the car, facing Leanne. She appeared to try to push him

away, but he opened the door and beckoned Henderson and the blond

woman to join hin.

Leanne accelerated and began sounding blasts on the horn.

Strickler struck her repeatedly and she ceased to sound the horn

and stopped the car. Henderson and the blond woman entered the

back seat. Mrs. Stolzfus came up to the car and asked, three

times, “are you 0.K.?" Leanne seemed “totally frozen." She

drove the Mercury away very slowly, and mouthed the word, “help.”

The Mercury headed east on Route 33, toward Elkton. Mrs.

Stolzfus' daughter wrote down its license number, West Virginia

NKA 243. . cae

About 7:30 p.m., Kurt D. Massie and a friend were driving

north on Route 340 near Stuarts Draft. They saw a dirty blue

car, southbound, turn off and drive into a field. Strickler was

the driver, a white woman was in the front seat with him,’ and

another man was in the back seat. Massie thought he

saw a fourth occupant in the car.

Between 9:00 and 9:15 p.m., Strickler and Henderson walked

into Dice's Inn in Staunton. Strickler was wearing blue jeans

"Leanne was black

which were dirty, bloody, and had a burn mark on them. He gave a

wristwatch, later identified as the property of Leanne Whitlock,

to a girl named Nancy Simmons.

At 12:30 or 1:00 a.m., Strickler left Dice's Inn with

Henderson and a girl named Donna Tudor. The three entered a

dirty blue Mercury. Henderson drove the car and Strickler sat in

the back seat with Donna. Strickler told her he had bought the

car from a man for $500. He also said that he had been in a

fight and had injured his knuckle, which appeared to be

lacerated. Strickler and Henderson discussed a "fight" they had

with “it,” describing "it" with a racial epithet. Strickler said

they had kicked "it" in the back of the head and had used a "rock

crusher." He said "it" would give them no more trouble.

Strickler was calm during this conversation, but Henderson seemed

nervous and kept looking over his shoulder at them. The three

drove to Harrisonburg to purchase drugs. During the ride,

Henderson nearly collided head-on with an approaching car, and

Strickler drew a knife and threatened to stab him.

After dropping Henderson off in Harrisonburg, Donna Tudor

went to Virginia Beach with Strickler in the blue Mercury. The

two stayed nearly a week, during which time Donna saw Leanne

Whitlock's driver's license, identification card, and bank card

in the car. Strickler tried to use the bank card in Virginia

Beach, and gave Donna a pair of earrings which Leanne had worn on

the night of January 5.

Several days later, Donna and Strickler returned to

Strickler's mother's home in New Market. Strickler's mother

washed his bloodstained blue jeans and his shirt. Strickler told

Donna to hide Leanne's three identification cards in a bag with

his T-shirt and other clothing. She deposited these items in an

abandoned car behind Strickler's stepfather's house, but later

led police to them.

On January 10 or 11, Donna and Strickler abandoned the blue

Mercury near a church. Angry after an argument with Donna,

Strickler cut up the interior of the car with his hunting knife

and also jumped on the car's roof, leaving his footprints.

On January 13, Henderson's frozen wallet was found in the

cornfield into which Kurt Massie had seen Strickler drive the

blue Mercury on January 5. Later that day, police searched the

field and found Leanne's frozen clothing in a pile near the place

Henderson's wallet had been found. Leanne's nude, frozen body

was found in a nearby wooded area, 300 feet from the highway,

buried under two logs and covered with leaves which had been

deliberately packed around the logs. Leanne's hands were extended

over her head and crossed at the wrists. She had been dragged by

the feet over the ground face down at or shortly after the time

of her death, leaving long linear scratches on her upper body.

There were lacerations and abrasions on the face, neck, and

thighs, some consistent with kicking. Death was caused by four

large, crushing, depressed skull fractures with lacerations of

the brain. Brain tissue had exuded from the left front of the

skull, and bone fragments were imbedded in the brain. Any one of

the fractures could have been fatal, but death was not

instantaneous.

Near the body, the police found a large rock, weighing 69

pounds, 4 ounces, which was stained with human blood in two

places. Despite the very cold weather, the rock was not frozen

to the ground. Beside the rock, there were two indentations in

the frozen ground, one four inches deep, the other less. Each

indentation contained blood of Leanne's blood type, as well as

human hair consistent with Leanne's in all respects. Human hairs

were also found on Leanne's frozen clothing. They were Caucasian

in origin and matched Strickler's hair in all respects. Some of

them had evidently been torn out of his head by the roots. Two of

the shoe impressions on the roof of the Mercury matched a shoe

Strickler was wearing when he was arrested on January 11.

Eighteen of his fingerprints, and nine of Donna Tudor's, were

identified in the car. A jacket with Henderson's identification

was found in the car. It bore at least four human bloodstains.

The shirt Strickler had been wearing on January 5 was recovered

from the brown bag Donna had hidden. It bore stains from semen

consistent with Strickler's, as well as human bloodstains.

Vaginal swabs taken from Leanne's body also showed the presence

of semen, but its type was not identified.

DISCUSSION

On April 24, 1996 while Strickler’s petition was pending,

the Antiterrorism and Effective Death Penalty Act of 1996, Pub.

L.No, 104-132, 110 Stat.1214 ("the Act”) became effective. Title

I of the Act, entitled “Habeas Corpus Reform,” substantially

alters the substantive law governing habeas corpus petitions.

Sections 101-106 of the Act modify pre-existing habeas corpus

procedures contained in Chapter 153 of the Judicial Code, 28

U.S.C. §$§ 2241-2255. Section 107(a) of the Act enacts a new

Chapter 154, 28 U.S.C. §$§ 2261-2266, which applies to petitions

in capital cases.

Respondent asserts that the Act, which amends and adds to

pre-existing law governing habeas corpus review, should be

applied retroactively in resolving the issues presented by

Strickler’s petition. Strickler argues that the law in effect at

the time he filed the petition should govern. Before addressing

the substance of Strickler’s claims, it is, therefore necessary

to determine whether, and to what extent, the Act applies to

Strickler’s petition.

Chapter 154, New Habeas Corpus Provisions:

Section 107(a) of the Act, codified at Chapter 154, 28

U.S.C. $§ 2261-2266, essentially offers a system of expedited

review and other “benefits” to states that qualify under either

of two “opt in” procedures: 1)the “post-conviction” procedure

provided by Section 2261; or 2) the “unitary review” procedure

provided by Section 2265. The substantive changes this chapter

makes to the law currently governing federal habeas review are

summarized by the district court in Hill v. Butterworth:

If a state opts in to the new habeas provisions, it

receives several procedural benefits. First, petitions

for habeas relief under Section 2254 must be filed in

federal court within 180 days ‘after final state court

affirmance of the conviction and sentence on direct

review or the expiration of the time for seeking such

review.’ 28 U.S.C. § 2264(a). Second, federal district

courts are limited to only considering ‘a claim or

claims that have been raised and decided on the merits

in the State courts.’ 28 U.S.C. § 2264. Third,

adjudication of a petition subject to Chapter 154 must

be given priority by the district court and court of

appeals ‘over all noncapital matters.’ 28 U.S.C. § 2266

(a). Fourth, reviewing courts are forced to expedite

their review of habeas petitions brought under the

Chapter 154. District courts must render a final

judgment on a habeas petition within 180 days after the

petition is filed, allowing the parties at least 120 of

those days to brief the case and have a hearing on the

merits. A court of appeals must hear and render a

final determination of an appeal within 120 days after

the reply brief is filed. 28 U.S.C. § 2266. Fifth, no

amendment to a habeas petition subject to Chapter 154

is permitted after the filing of the answer to the

petition, except on certain grounds set forth in §

2244(b). 28 U.S.C.§ 2266(b) (3) (B).

Hill v. Butterworth 1996 WL at *3 (N.D. Fla. Aug. 7, 1996).

The Fourth Circuit in Bennett v. Angelone, 92 F.3d 1336,

1342 (4th Cir. 1996) requires this Court to analyze Strickler’s

petition under § 107 of the Act because that section specifically

states that the Act “shall apply to cases pending on or after the

date of enactment of this Act.” See § 107(c). But, the Court of

Appeals explained that the new provisions only affect habeas

petitions if “the state has established procedures to ensure the

appointment of qualified counsel to represent indigent

petitioners in state post-conviction proceedings.” Id. at 1342.

Since, Virginia does not have a unitary review procedure, the

Court must analyze whether Virginia meets the post-conviction

review procedures and thus qualifies as an opt in state.

To qualify as an opt in state a state specifically must meet

a

Milter Bae

all four of the following criteria:

1. The State must establish by statute, rule of its court of last

resort, or other agency authorized by state law, a mechanism for

the appointment, compensation and payment of reasonable

litigation expenses of competent counsel in state post-conviction

proceedings brought by indigent capital defendants. See §

2261 (b)-

2. Such mechanism must provide standards of competency for the

appointment of such counsel. See § 2261 (b)

3. Such mechanism must affirmatively offer counsel to all state

prisoners under capital sentence. See § 2261li(c)

4. Such mechanism must provide for an entry of a court order

either appointing counsel to each capital defendant, or

explaining that such an appointment was not made on the basis

that a defendant was not indigent or rejected the offer of

counsel with an understanding of the legal consequences. See §

2261 (c)

Has Virginia Satisfied the Opt-in Requirements

Since July 1, 1995 the appointment of counsel for post-

conviction capital cases is required under the Va. Code § 19.2-

163.7. Between July 1, 1992 and June 30, 1995, however, the

appointment of counsel in the post-conviction process was made

upon request by the petitioner. Va. Code § 19.2-163.7 (prior to

1995 amendment). The Fourth Circuit has not decided whether

Virginia’s post-conviction appointment provisions qualify it as

an opt-in state. The Court of Appeals did not reach the issue in

Bennett v. Angelone because Virginia’s system of post-conviction

appointment provisions was set up “after petitioner’s Virginia

habeas petition had been finally denied by the Virginia Supreme

Court.” Id. at 1342. Here, however, Strickler’s state habeas

petition was filed and denied by the Supreme Court of Virginia

after Virginia’s 1992 post-conviction system was in place. Thus,

the Court must examine whether the procedures in effect when

Strickler filed his petition, September 1992, satisfy the opt-in

requirements. *

Judge Payne of the Eastern District of Virginia considered

the issue in Satcher v. Netherland, No. 3:95cv26l1 (E.D. Va.

October 8, 1996). Judge Payne concluded that Virginia was not an

opt-in state because it post-conviction counsel mechanisms in

place between 1992 and 1995 failed to meet three of the four

requirements laid out by § 107. The Court agrees with the Satcher

holding that while Virginia substantially complied with the Act’s

requirement for the time period in question it failed to adhere

to the strict formal requirements of the Act.

Only since July 1, 1995 has Virginia required by statute the

appointment of competent counsel to represent indigent

petitioners in its post-conviction proceedings. Before that

? There is some dispute as to which date courts should

consider when analyzing the opt-in provisions. The Fourth

Circuit in dicta suggests that courts should look at the system

in place when the Virginia Supreme Court denied the petition. 92

F.3d at 1342. The district court in W Vv , however,

looked at the provisions in place when pe oner’s state counsel

was appointed. No. 2:96cv830 (E.D. Va. Oct 15, 1996). Since the

provisions lay out the appointment of counsel the district

court’s approach seems the most logical. Under either method,

however, the result is the same. Since t picks the time

of filing the state petition, the Court will look at the

provisions in place at that time.

time, counsel was appointed at petitioner’s request. Section

107, however, requires a statutory appointment mechanism that

places an affirmative and automatic duty upon the State to offer

competent post-conviction counsel to all prisoners sentenced to

“death. The Commonwealth’s system in effect when Strickler filed

his petition did not place such an affirmative duty upon the

state. Thus while no indigent capital defendants have gone

unrepresented in Virginia state habeas proceedings, the Court

finds that the statute fails to meet the formal requirement of

the Act. See Wright v. Angelone, action no 2:96cv830.

Furthermore, the Va. code does not provide for the

compensation and reimbursement litigation expenses for such

counsel. While Virginia substantially complies with the law by

the General Assembly’s appropriations acts that provide for the

payment of such counsel it has not specifically established a

“mechanism” for payment as required by the Act. The Fourth

Circuit recently noted that “the Virginia statutes and

regulations do not specifically provide for the compensation or

payment of litigation expenses of appointed counsel, as § 107

requires.” “Bennet » 92 F.3d at 1342 n.2. This same conclusion

was reached by the court in Satcher.

As the court in Satcher noted,”if Congress had intended to

afford the States the very significant benefits conferred by

Chapter 154 on the basis of a finding of substantial compliance

e ¥ .

based on past performance, it could have done so.” Id. Congress

instead chose to confer the benefits only if states made a formal

commitment to provide a post-conviction review system that

protected capital litigants’ constitutional rights. Id. This

Court agrees with this analysis and finds that Virginia’s system

for compensation and payment of expenses fails to meet the

standards established by § 107.

Virginia does not qualify as an opt-in state because it

fails to adhere to the formal requirements of § 2261. While it

substantially complies with the Act’s provisions, its statutory

scheme does not establish the rigid standards for providing

counsel to indigent defendants or compensating the counsel.

Therefore, it can not enjoy the “benefits” provided by the § 2261

of the Act.

Chapter 153 Amendments

Respondent argues that the general habeas provisions

contained in Chapter 153 of the Act, $§ 101-106 apply to

Strickler’s petition. These procedures effect a number of

procedural changes to previous habeas corpus statutes codified in

Chapter 153. Unlike Chapter 154, they are not made explicitly |

applicable to petitions pending when the Act took effect.

Nonetheless, the Commonwealth urges the retroactive application

of the Chapter 153 amendments to Strickler’s petition. This

Court, however, agrees with the Satcher analysis and finds that

the Chapter 153 amendments do not apply retroactively.

The Supreme Court most recently addressed the question of

retroactivity in Landgraf v. USI Film Prods., _ U.S.

_« 114

S.Ct. 1483 (1994). In Landgraf, the petitioner sought the

application of a new statute (Title VII of the Civil Rights Act

of 1991) to cases pending on the date the new law was enacted.

The Supreme Court rejected that interpretation and reaffirmed the

presumption against retrospective application of statutes. Id.at

1503. The Court explained that retroactive application of

legislation is disfavored because

The Legislature’s unmatched powers allow it to sweep

away settled expectations suddenly and without

individualized consideration. Its responsivity to

political pressures poses a risk that it may be tempted

to use retroactive legislation as a means of

retribution against unpopular groups or individuals.

Id.at 1497.

In Landgraf the Court determined that when faced with the

retroactivity question, a court must first determine whether

Congress “has expressly prescribed the statute’s proper reach.”

Id.at 1505. In the absence of clear congressional intent, a

court must determine whether a statute would have retroactive

effect, “i.e. whether it would impair rights a party possessed

when he acted, increase a party’s liability fer past conduct, or

impose new duties with respect to transactions already

completed.” Id.at 1505. If the court finds such a retroactive

effect, the traditional presumption “teaches that it does not

12

govern absent clear congressional intent favoring such a

result.”Id.

After examining the language of the Chapter 153 amendments

the Court finds that the Supreme Court’s analysis in Landgraf

prohibits retroactive application of the Act. The language of

the Chapter 153 amendments contains no express provision of

retroactivity. Congress, however, clearly considered the issue

when drafting the Act. Section 107(c) of the Act states that

“Chapter 154...shall apply to cases pending on or after the date

of enactment of this Act.” The Act, however, contains no similar

provision for the Chapter 153 amendments. See Bennett v.

Angelone, 92 F.3d at 1342-43. Congress’ failure to include

Similar language for the Chapter 153 amendments reflects its

intent that these provisions are not to apply retroactively. See

Russello v. United States, 464 U.S. 16, 23 (1983) (“(W]here

Congress includes particular language in one section of a

Statute, but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.”) (quoting United States

v. Wong Kim Bo, 472 F.2d 720, 722 (Sth Cir. 1972)).

Both the Second and the Tenth Circuits have held that the

Chapter 153 Amendments are not applicable to pending petitions.

See Boria v. Keane, 90 F.3d 36, 38 (2nd Cir. 1996) (“While

Congress has spoken clearly in some portions of the new statute

13

with respect to the application of the statue to pending cases,

see, @e.g., $ 107(c), in the context of non-capital habeas cases

the statute’s silence is striking. This silence coupled with the

presumption against retroactivity, leads us to hold that the new

statute does not apply to this case.”); Edens v. Hannigan, 87

F.3d 1109 (10th Cir. 1996).

The Court finds that provisions of Chapter 153 would

definitely have a retroactive effect if applied to petitioner’s

case. Since Congress did not expressly state that they should be

applied retroactively, the Court concludes that it must follow

the traditional presumption against retroactive application.

Thus the Court finds that neither the new Chapter 153 amendments

nor the new Chapter 154 provisions apply to Strickler’s petition.

Therefore, the Court will analyze Strickler’s claims based on the

law governing federal habeas corpus review in effect at the time

he filed his petition.

Strickler’s Claims:

In his federal habeas petition Strickler raises the

following claims:

(A) Insufficiency of the evidence to support the verdict of

capital murder

(B) Ineffective assistance of counsel

(C) Strickler did not receive the mental health expert

assistance guaranteed by Ake v. Oklahoma

(D) Strickler’s death sentence was arbitrary and

capricious, and also disproportionate to the sentence

14

(E)

(F)

(G)

(H)

(I)

(J)

received by his more culpable co-indictee

Improper jury instructions violated Strickler’s Sixth,

Eighth, and Fourteenth Amendment rights.

The trial court’s failure to allow counsel to ask or

inform jurors about parole

The trial court erroneously limited voir dire about

jurors’ ability to show mercy and thus follow their

oaths as jurors in considering a life sentence

The trial judge’s refusal to qualify jurors Almarode

and Wills

The trial judge’s failure to excuse for cause jurors

Ramsey and Brooks

Strickler’s rights under the Sixth, Eight and

Fourteenth Amendments were violated when the

commonwealth withheld exculpatory evidence

(K)

(L)

(M)

(N)

(0)

(P)

The prosecutor knowingly presented false testimony at

Strickler’s capital murder trial

Strickler was deprived of his rights to a fair trial

and due process of law under the Sixth, Eight, and

Fourteenth Amendments when the Commonwealth presented

inconsistent testimony and argument on the evidence at

the two trials

Strickler is actually innocent of the crime and the

sentence

The Supreme Court of Virginia provides inadequate and

meaningless appellate review of the appropriateness of

the death penalty

Strickler’s rights under the Sixth, Eight, and

Fourteenth Amendments were deprived by prosecutor’s

improper comments in opening and closing arguments

The Commonwealth improperly relied upon an

unconstitutionally obtained conviction to show future

dangerousness at the sentencing phase in violation of

Strickler’s rights as guaranteed by the Sixth, Eight,

and Fourteenth Amendments to the Constitution

(Q) The death penalty is cruel and unusual and therefore is

unconstitutional

(R) Vileness and future dangerousness under the Virginia

death penalty statue are unconstitutionally vague

(S) The evidence was insufficient to establish either

future dangerousness or vileness

(T) Juror misconduct

(U) The cumulative effect of the errors at trial violated

Strickler’s right to a fair trial as guaranteed under

the Sixth, Eighth, and Fourteenth Amendments of the

Constitution

(V) Ineffective assistance of appellate counsel

The Commonwealth contends that most of Strickler’s claims

are procedurally barred and those that are not lack merit. As a

preliminary matter the Commonwealth does not dispute that

Strickler has exhausted his state remedies and his claims are

thus properly before this Court.

A. Insufficiency of the evidence to support the verdict of

capital murder 7

Strickler first claims that there was insufficient evidence

to convict him of capital murder. Respondent concedes that there

are no procedural difficulties with this claim. Under Virginia’s

triggerman statute, only the immediate perpetrator of a crime may

be convicted of capital murder. A conviction based on

circumstantial evidence regarding who did the actual killing must

“exclude every reasonable hypothesis of innocence.” Rogers v.

Commonwealth, 410 S.E.2d 610,627 (1991).

_

The Virginia Supreme Court found that there was sufficient

evidence to convict Strickler of capital murder. Under § 2254(d)

the state court’s findings are presumed to be correct unless they

fall under one of the listed eight factors. In this case the

Virginia Supreme Court relied on misstatements of the record and

thus lose their presumption of correctness under § 2254(d) (8).

The state court improperly stated Donna Tudor’s testimony about

the condition of Strickler’s clothing and ignored testimony of

other individuals at Dice’s Inn who did not describe Strickler as

wearing such stained clothing that night. The Supreme Court also

misstated the forensic evidence. It ignored critical testimony

about additional hairs near the victim which were not

Strickler’s; and the expert’s inability to match the semen found

in the victim’s body with any individual.

The jury undoubtedly had sufficient evidence to conclude

that Strickler was present at the crime. The question here,

however, concerns the sufficiency of the evidence to support its

determination that Strickler actually committed the killing and

was not an observer or accomplice. While the Court believes the

inquiry is not easy; it finds that Strickler is entitled to an

evidentiary hearing on the claim and that it should not be

dismissed.

B. Ineffective assistance of counsel

17

Petitioner claims that his trial counsel rendered him

ineffective assistance of counsel both during the guilt and to

sentencing phases. Petitioner enumerates many instances of

purported ineffectiveness, some of which respondent claims are

procedurally defaulted.

The standard for ineffective assistance of counsel is set up

in Strickland v. Washington, 466 U.S. 668 (1983/4). In

Strickland, the Court set up a two pronged inquiry to assess

counsel’s performance. In order to prove ineffective assistance,

a petitioner must show that counsel’s performance fell below

minimum standards while overcoming a strong presumption towards

reasonableness. Not only do petitioners have to prove deficient

performance, they must also show that counsel’s errors prejudiced

them. The Supreme Court defined prejudice as a reasonable

probability that counsel’s errors undermined confidence in the

outcome of the trial.

Strickler raises numerous instances of ineffective

assistance that he claims rise to the Strickland level. After

reviewing his various allegations, the Court finds that this

claim should not be dismissed and that Strickler should be

granted an evidentiary hearing on the issue to resolve genuine

issues of material facts. The failure of Strickler’s counsel to

pursue a voluntary intoxication defense is procedurally barred,

but the other components of his claims pass the procedural

hurdles. While some of counsel’s alleged ineffectiveness do not

by themselves rise to the Strickland level, when examined all

together, they present a genuine issue of material fact as to

whether counsel performed ineffectively.

C. Failure to provide effective assistance under Ake v. Oklahoma

In Ake v. Oklahoma, the Supreme Court held that a defendant

in a capital case must have the assistance of a competent,

effective and independent mental health expert. Ake v. Oklahoma,

470 U.S. 68 (1985). Respondent correctly notes that Petitioner

has procedurally defaulted on this claim because it was never

raised on direct appeal. Petitioner claims that this claim is

reviewable under Sawyer v. Whitley, 505 U.S. 333 (1992). Under

Sawyer, a federal habeas petitioner may “pass through the

gateway” and argue the merits cf an otherwise defaulted

constitutional claim arising out of an error at sentencing if the

petitioner can demonstrate by clear and convincing evidence that,

but for the constitutional error, no reasonable juror would have

found him eligible for the death penalty under the applicable

state law. Id. Petitioner argues that a competent and effective

mental health expert could have made “a persuasive case to defeat

the finding of future dangerousness.” The Court finds that

Petitioner does not meet the Sawyer test. Petitioner was

evaluated by a social worker, Dr. Warren who his counsel chose

not to call. Furthermore, the Commonwealth presented much

evidence on the question of future dangerousness, and it would be

impossible for Petitioner to demonstrate by clear and convincing

evidence that an independent mental health expert testimony would

have prevented any reasonabic juror from finding him eligible for

the death penalty.

D. The death sentence was arbitrary capricious and

disproportionate.

Petitioner argues that his sentence should be overturned

because it is “excessive and disproportionate.” Respondent

contends that this claim is procedurally barred under Slayton v.

Parrigan, 205 S.E.2d 680 (1974). The problem with Respondent’s

position, however, is that Petitioner could not argue that his

sentence was disproportionate based on the evidence brought out

in Henderson’s trial until that trial took place. Thus, he could

not argue this claim on direct-eappeal. The Court finds that this

claim is not procedurally defaulted. The evidence at Henderson’s

trial including mis admission that he committed the murder

provides a basis for a hearing that Strickler’s sentence was

disproportionate to the crime.

E. Impreper Jury instructions violated Strickler’s Sixth, Eighth

and Fourteenth Amendment rights.

Petitioner alleyes that various jury instructions by the

state court provide a basis for habeas relief. The Court finds

that the jury instructions do not alone provide a basis for

relief. The state court’s burden shifting instruction on malice

does not rise to the level of a constitutional violation. In

Peterson v. Murray, 904 F.2d 882 (4th Cir. 199%) che Fourth

Circuit found the exact same instruction permissible. The

failure to instruct on mitigating circumstances and the state

court’s instruction on an improper predicate are procedurally

barred. Strickler argues that trial counsel’s failure to object

constitutes cause and prejudice for the default. The Court does

not find that trial counsel’s failure to object to two

instructions undermines confidence in the verdict sufficient to

meet the cause and prejudice standard.

F. Trial court’s failure to allow counsel to ask or infora jurors

about parole

Strickler argues that this failure to inform jurors about

his parole ineligibility violates the Eight Amendment’s

requirement that a capital sentencing authority must be able to

consider “any relevant circumstance that could cause it to

decline to impose the [death] penalty.” McCleskey v. Kemp, 481

U.S. 279, 306 (1987). In Skipper v. South Carolina, 476 U.S. 1

(1986) the Supreme Court held that mitigating evidence should be

defined broadly; its definition would include evidence of parole

ineligibility. The Court does not dismiss the claim.

G. Trial court erroneously limited voir dire about juror’s

ability to show mercy and thus follow their oaths as jurors in

considering a life sentence.

The trial transcript reveals that Petitioner’s counsel

conducted extensive voir dire of the jurors. The trial court

prohibited counsel from asking one question about mercy. The

Court finds that the inability to present this one question to

the jurors does not constitute a constitutional violation.

Therefore, this claim is dismissed.

H. Trial judge’s refusal to qualify jurors Almarode and Wills.

Juror Wills stated that he could not impose the death

penalty under any circumstances; thus he was properly barred from

serving on the jury. Similarly, juror Almarode said that she

could not vote to convict if she knew there was a possibility

that Petitioner would receive the death sentence. The Court

finds that the trial judge properly refused to qualify these

jurors based on their opposition to the death penalty and

dismisses this clain.

I. Refusal to excuse for cause jurors Ramsey and Brooks

The Virginia Supreme Court found that these two jurors were

impartial. The Fourth Circuit in Fields v. Murray, 49 F.3d 1024

(4th Cir. 1995) found that such a determination is entitled to

federal court deference. The Supreme Court of Virginia found

ample evidence existed to support the trial judge’s determination

of impartiality and this Court defers to its ruling. This claim

must be dismissed.

J. Violation of Strickler’s Sixth, Eighth and Fourteenth

amendment rights when Commonwealth withheld exculpatory evidence.

Petitioner contends that the Commonwealth withheld

exculpatory impeachment evidence about Ann Stolzfus and Donna

Tudor. The Commonwealth failed to disclose interviews and

letters of Stoltzfus that contradicted and impeached her trial

testimony. In her initial police interviews and subsequent

letters to the police, Stolzfus could not identify Strickler as

the man she saw in the car at the mall, could not identify ~

Whitlock, and only described Whitlock’s car and license plate

number after viewing the seized vehicle at the police impound

lot.

Respondent argues that this claim is procedurally barred.

Petitioner states that the Court can hear his claim because his

trial counsel’s ineffectiveness for failing to file a Brady claim

constitutes cause and prejudice for his default. “An attorney’s

effectiveness may constitute cause for excusing a procedural

default when a petitioner has a constitutional right to effective

assistance of counsel and when that assistance is

constitutionally ineffective under the standard established in

Strickland v. Washington.” Smith v. Dixon, 14 F.3d 956, 973 (4th

Cir. 1994). The Court finds that the failure of Strickler’s

trial counsel to pursue a Brady motion constitutes cause for the

default. Since Stoltzfus was the main witness to place Strickler

at the mall and with Whitlock, his inability to use impeachment

material prejudiced him. Accordingly, the Court grants him an

evidentiary hearing on his claims.

Petitioner also claims that the Commonwealth withheld

impeachment testimony about Tudor. Tudor’s first comments to the

police fail to mention all the incriminating details about

Strickler that she testified to during trial. Petitioner alleges

that Tudor had a motive to fabricate her testimony in exchange

for immunity on a pending grand larceny charge. Respondent

claims that this claim is also procedurally barred; Petitioner

asserts the same cause and prejudice argument he made about

Stolzfus. The Court dees not believe that Tudor’s

inconsistencies truly prejudiced Strickler, thus it believes the

claim is procedurally defaulted.

K. Prosecutor knowingly presented false evidence at trial.

Petitioner argues that the prosecution knew that Stoltzfus

manufactured her testimony and thus by allowing her testify they

permitted false testimony to be presented in court. Petitioner

does not allege that the prosecution knowingly allowed Stoltzfus

to lie on the stand. Instead, he is suggesting that since her

testimony changed over time, prosecutors knew that her trial

testimony could not be true. While the Court believes there may

be some merit to the suppression of this impeachment testimony,

it does not believe it rises to prosecutorial misconduct as

alleged here. This claim must be dismissed and the Court need

not reach the procedural default issue.

L. Right to fair trial

This claim has no merit. The prOsecution must present the

best case it can. The cases Strickler cites in support of this

Claim describe much more egregious behavior than the behavior at

issue here. For the Henderson and Strickler trials, the

prosecution was just adopting different trial strategies based on

the different cases it had to prove. Such actions do not

constitute a constitutional violation.

M, Strickler actually innocent of the crime and sentence

Respondent states that this claim is procedurally barred.

Petitioner claims that actual innocence overcomes procedural

default under Schlup and Sawyer. While these two do support a

“loop hole” for actual innocence, they establish a very strict

—

I

standard that is rarely met. In Schlup, the Supreme Court held

that for a habeas petitioner to pass through the “gateway” and

have the federal habeas court reach the merits of his defaulted

Claims: “the petitioner must show that it is more likely than not

that no reasonable juror would have convicted him in the light of

the new evidence.” Id. at 867.

Petitioner presents new evidence which he claims shows his

innocence. He submits the sworn testimony of Jeffrey Woods at

Henderson’s trial that Henderson admitted he, not Strickler,

dropped the rock on Whitlock. He additionally states that

Henderson’s hair samples were like the hairs recovered from

various clothing found at the scene. Henderson’s PGM subtype was

consistent with that found in vaginal and rectal swabs taken from

the victim. Lastly, forensic evidence developed since

Strickler’s trial indicates that Whitlock probably died of

strangulation and not from head injuries.

Petitioner’s new evidence does not meet the Schlup standard.

etitioner’s evidence only goes to the question of who actually

committed the murder. Balanced against the new evidence that

points to Henderson’s guilt, is the evidence presented by the

Commonwealth at Strickler’s trial. An eyewitness saw Strickler

abduct the victim, his shirt contained traces of human blood and

semen, semen was found in the victim’s body; Strickler’s hair was

found near the victim’s body, he retained possession of the

victim’s credit cards, he took her car and made statements about

kicking the victim in the head and being a “rock crusher.” Thus

this new evidence does not make it more likely than not that a

reasonable juror would conclude that Strickler was not guilty.

The Court will dismiss this claim.

N) The Supreme Court of Virginia provides inadequate and

meaningless appellate review of the appropriateness of the death

penalty.

Respondent states that this claim is procedurally defaulted

under Slayton v. Parrigan. As Petitioner correctly points out,

however, he could not have pointed out errors in the appellate

process until the appellate process was over. He argues that the

Virginia Supreme Court failed to compare cases where the

defendants received life with those cases where the defendants

received death. He also argues that the court failed to compare

mitigation evidence in various cases; lastly, Strickler argues

that the court’s review relied on incorrect statements of

evidence at trial. Petitioner brought this claim up on state

habeas which was his first opportunity to challenge the Virginia

Supreme Court’s actions. This claim is properly before the

Court, and the Court will grant Petitioner an evidentiary hearing

on the claim.

0) Strickler’s rights under the Sixth, Eight, and Fourteenth

27

Amendments were deprived by the prosecutor’s improper comments in

opening and closing arguments.

The Court agrees with respondent that this claim is

procedurally barred under Slayton.

P) The Commonwealth improperly relied upon an unconstitutionally

obtained conviction to show future dangerousness at the

sentencing phase in violation of Strickler’s rights as guaranteed

by the Sixth, Eighth, and Fourteenth Amendments.

Respondent argues that this claim is procedurally defaulted.

Petitioner argues that the claim is reviewable under Sawyer v.

Whitley. Sawyer requires a petitioner to prove by clear and

convincing evidence that, but for the constitutional error, no

reasonable juror would have found him eligible for the death

penalty. The jury relied on numerous pieces of evidence to find

Strickler eligible for the death penalty. They looked at his

behavior before, during and after the killing of Whitlock as well

as his continuing criminal activity. Assuming arguendo that the

Commonwealth did improperly introduce Strickler’s conviction, the

jury still had sufficient other evidence to support its finding

of future dangerousness. The Court dismisses this claim.

Q) The death penalty is cruel and unusual and therefore

unconstitutional.

The Court dismisses this claim because it is without merit.

See Gregg v. Georgia, 428 U.S. 153 (1976) (when proportional to

the severity of the crime and not a wanton infliction of pain the

death penalty is consti’ utional)

R) Vileness and Future Dangerousness under the Virginia Death

Penalty statute are unconstitutionally vague.

In this claim, the Petitioner asserts that the “future

dangerousness” aggravating factor under Virginia law is

unconstitutionally unreliable and vague. Respondent correctly

notes that Petitioner has procedurally defaulted on this claim.

Petitioner purports to evade the procedural default by

arguing that the claim is reviewable under Schlup and Sawyer.

The Court concludes that this claim does not meet this standard

and is dismissed.

S)Evidence was insufficient to establish either future

dangerousness or vileness

This claim is similar to the insufficiency of the evidence

argument raised in claim A. The Court will grant an evidentiary

hearing on this clain.

T) Juror misconduct

Respondent correctly notes that this claim is procedurally

barred. Petitioner contends that he met the procedural hurdle by

raising the claim in his state habeas. Since he did not,

however, raise it on direct appeal, the Court finds this claim

barred under Slayton.

_ a A IC

U) The cumulative effect of the errors at trial violated

Strickler’s right to a fair trial as guaranteed under the Sixth,

Eighth, and Fourteenth Amendments of the Constitution.

This claim survives the motion to dismiss and the Court will

grant an evidentiary hearing on those matters it has not ruled

are procedurally barred.

V) Ineffective Assistance of Appellate Counsel

In Claim V the Petitioner asserts that he was rendered

ineffective assistance of appellate counsel because he did not

receive an accurate record of the proceedings. The Court finds

that this claim is not procedurally defaulted, but that it lacks

merit. Accordingly, the claim must be dismissed.

An appropriate order will follow

TED STATES DISTRICT

DEC | 0 1996

30

EXHIBIT

c

Ir Sais?

etekate 2 4 eer Stee t ae oe

Jan. 16 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA | CLERK US OST

RICHMOND DIVISION RIC int

TOMMY DAVID STRICKLER,

)

)

Petitioner, )

) Civil Action

Vv. ) No. 3:95CV924

)

J.D. NETHERLAND, WARDEN ) ee walk

) ~ «¢ mm y pnd

)

Respondent. ; aN £t 1997

ORDER ‘* Seton

The Court is in receipt of Respondent’s motion to alter or

amend its judgment of December 10, 1996. For the reasons stated

in the Memorandum this day filed and deeming it just and proper

so to do, it is ADJUDGED and ORDERED that the Court grants

respondent's motion with respect to claims A,D,F,N, and Ss.

The Court grants an evidentiary hearing on petitioner’s

Claims B,J, and U.

Let the Clerk send copies of this Order to counsel of

7 MYL.

TED STATES DISTRICT JUDGE

record.

DATE

Oct

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

“fOMMY DAVID STRICKLER,

)

)

Petitioner, )

3 ) Civil Action

Sv. ) No. 3:95CV924

a )

> J.D. NETHERLAND, WARDEN )

)

)

Respondent. )

)

MEMORANDUM

The Court is in receipt of respondent’s motion to alter or

amend its judgment of December 10, 1996. In its Order, this

Court granted petitioner an evidentiary hearing on claims

A,B,D,F,J,N,S, and U. Respondent contends that these claims

either have no merit as a matter of law, fail to raise a

cognizable federal issue or raise only pure legal issues for

which an evidentiary hearing is unnecessary.

Claims A and S: Sufficiency of the Evidence to Prove Capital

Murder, Vileness and Future Dangerousness

gee 7 fete

Upon reconsideration, the Court will dismiss these two

S=. claims as lacking merit. After further examination of the

E- record, there is enough evidence to support the jury’s

E determination that Strickler committed the capital murder. The

‘Commonwealth presented testimony and evidence that Strickler was

OGO0950

present at the murder scene; his shirt contained traces of human

blood and semen; his hair was found near the victim’s body; he

stole the victim’s car and credit cards; he made statements about

kicking the victim in the head and being a “rock crusher.” The

jury had enough evidence to support its finding that Strickler ,

alone committed the murders.

The evidence on the record also supports a jury’s

Getermination that Strickler jointly participated in the killings

and thus his conviction for capital murder is permissible under

Virginia’s “triggerman” rule. It was reasonable for the jury to

conclude that the victim was bludgeoned to death and not

Strangled; the evidence about the rock’s weight and that one man :

Was needed to hold Whitlock down supports a finding that two men

were needed to accomplish the act.

Similarly, the jury’s determination of vileness and future

dangerousness is also reasonable and supported by the record.

Accordingly, the Court will dismiss these two claims.

Claim B. Ineffective Assistance of Counsel

The Court reaffirms its grant of an evidentiary hearing to

the petitioner on this issue. Petitioner has not had a hearing

on this issue in state court, and thus he has never had the

opportunity to fully develop his claim. Petitioner has alleged

numerous new facts in support of his ineffectiveness claim, and

9G099

Pursuant to 28 U.S.C. § 2254(d) and Townsend v. Sain, 372 U.S.

93 (1963), this Court may grant him a hearing to develop his

-olaim.

Claim D. Arbitrary, Capricious, and Disproportionate Death

Sentence

—

The Court will dismiss this claim because it is essentially

While Pulley v. Harris, 465 U.S. 37

a proportionality clain.

(1984) does not ban all proportionality claims, in the case at

bar, Strickler has not presented 4 constitutional clain.

Claim F. The Meaning of Parole and a Life Sentence

Contrary to respondent's contention, this claim’ is not

procedurally barred. Petitioner raised it on direct appeal and

on state habeas. The Court, however, believes that the

information Petitioner sought to present to the jury does not

constitute a constitutional violation of the Supreme Court’s

requirement that sentencing authorities consider all mitigating

evidence. See McClesky v. Kemp, 481 U.S. 279 (1967). The Court

will deny an evidentiary hearing on this issue because this claim

seeks an impermissible retroactive application of a new rule.

‘The Court understands that Petitioner’s claim is not that

he “o onaaie ineligible,” but rather that he should have been

able to inform jurors that no one who has been convicted ~" .

Capital murder but sentenced to life imprisonment has ever a:

released on parole. Petitioner also argues that he was not

to ask jurors what a life sentence actually meant to them.

3

OGOS3=

~ -

Petitioner’s claims is analogous to Simmons v. South Carolina,

114 $.Ct. 2187 (1994) (Capital defendant allowed to rebut evidence

of future dangerousness with proof of parole ineligibility.).

The Fourth Circuit in 0’Dell v. Netherland, 95 F.3d 1214 (4th

Cir. 1996) held that the Simmons holding was a new rule that

could not be applied retroactively.’ Accordingly, the Court will

dismiss this clain.

Claim J. The Commonwealth Withheld Exculpatory Evidence

The Court affirms its grant of an evidentiary hearing on the

prosecution’s failure to disclose exculpatory and impeachment

evidence concerning witness, Ann Stoltzfus. Petitioner has

demonstrated cause for his failure to raise this claim earlier.

Defense counsel had no independent access to this material and

the Commonwealth repeatedly withheld it throughout Petitioner’s

State habeas proceedings.

Claim N. Inadequate and Meaningless Appellate Review

The Court will dismiss this claim. Petitioner challenges

the appellate review in his own case. His claim, however, is

procedurally defaulted because he did not raise it in his

petition for rehearing before the Virginia Supreme Court.

? The Court is aware, however, that the Supreme Court has

granted review in 0’ Dell on this issue of whether Simmons

constitutes a new rule. O’Dell v. Netherland, _S.Ct.__, 1996 WL

716301 (12/19/96.).

The Court has ordering a hearing on a several claims dealing

reclaim U. Denial of the Right to a Fair Trial

with trial errors. Given their nexus to this claim, the Court

will deny the motion to dismiss Claim U and allow a hearing to

proceed.

The Court will dismiss claims A,D,F,N, and S. An appropriate

Order will follow.

UNITED STATES DISTRICT JUDGE

CGOSS4

IBiIitT

D

IN THE UNITED STATES DISTRICT COURT

POR THE EASTERN DISTRICT OF VIRG

RICHMOND DIVISION

TOMMY DAVID STRICKLER,

.

, wre ~

_

_

)

)

Petitioner, ) al) HMON. L /

) Civil Action

Vv ) No. 3:95CV924

)

J.D. NETHERLAND, WARDEN, )

Respondent. )

)

)

PINAL ORDER

Por the reasons stated in the Memorandum this day filed, and

deeming it just and proper so to do, it is hereby ADJUDGED and

ORDERED that Petitioner’s Motion For Summary Judgment On Claim J

(Brady violation) And Claim U (denial of fair trial) is GRANTED,

thereby nullifying Petitioner’s convictions of September 19, 1990

and the sentences imposed thereon. Respondent's Motion for

Summary Judgment is DENIED.

Let the Clerk send copies of this Order and accompanying

Memorandum to all counsel of record.

OME ZA

UNITED STATES DISTRI

OCT + § 1997

DATE

SA ae a) Sa —

IN THE UNITED STATES DISTRICT COURT! pe l

FOR THE EASTERN DISTRICT OF VIRGINI —t bb

RICHMOND DIVISION

TOMMY DAVID STRICKLER,

)

)

Petitioner, )

) Civil Action

Vv. ) No. 3:95CV924

)

J.D. NETHERLAND, WARDEN, )

Respondent. )

)

)

MEMORANDUM OPINION

The crime giving rise to the instant proceedings occurred on

January 5, 1990. The evidence at trial, in a brief summary, was as

follows:

The victim, Leanne Whitlock, a young woman, while driving a

friend's automobile, had driven to a shopping mall in Harrisonburg,

Virginia at approximately 6:45 p.m. While the vehicle was stopped,

aman ran from the shopping section of the mall and forced his way

into the vehicle which the victim was operating. She drove off an

sounded blasts of the horn while che intruder struck her

repeatedly. She stopped the vehicle, and a second man, accompanied

by a blond-haired woman, allegedly entered the car. Ms. Whitlock

drove the car away, and her nude body was discovered five or six

days later.

The issue before the Court deals primarily with the predicate

eck

EAK, US. DISTRICT COURT

ee GHMOND VA |

acts leading to the death sentence rendered against the Petitioner.

By agreement of Counsel for the Petitioner and Counsel for the

Respondent, the issue of ineffective counsel, as contended in Claim

B of the Amended Petition, has been withdrawn, leaving for the

Court’s determination, on the agreed pleadings, the claims in

Claims J and U descriked in the following paragraphs.

On September 19, 1990, the Circuit Court of Augusta County

found Tommy David Strickler guilty of the capital murder of Leanne

Whitlock. Pursuant to 28 U.S.C. § 2254, Strickler filed a Petition

and an Amended Petition seeking a Writ of Habeas Corpus against

Respondent J.D. Netheriand, Warden of Mecklenberg Prison. The

matter comes before the Court on the cross-motions of Petitioner

and Responcent for summary judgment pursuant to Rule S56 of the

Federal Rules of Civil Procedure. The motions have been fully

briefed by the parties and are ripe for decision.

ao BACKGROUND

Charges against Strickler were first brought in Rockingham

County in Sitiaiel 1990, and the case was later transferred to

Augusta County when a capital indictment was returned in April,

1990. Strickler was tried by a jury before the Circuit Court of

Augusta County (J. Wood) and found guilty of capital murder,

robbery, and abduction. On June 21, 1990, the jury recommended

two life terms on the robbery and abduction charges and death for

the capital murder charge. On September 19, 1990, the judge

followed the recommendation of the jury sentence in the

sentencing hearing.

By Orders dated December 10, 1996 and January 16, 1997, for

reasons set out in Memoranda of the same dates, the Court granted

Strickler an evidentiary hearing on Claim B alleging ineffective

assistance of trial counsel, on Claim J alleging that the

Commonwealth withheld exculpatory and impeachment material

(“Brady” material) on a chief prosecution witness, Ann Stoltzfus,

and on Claim U alleging that the cumulative effect of

constitutional errors at trial violated Strickler’s right to a

fair trial.

STANDARD

iL. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure governs

motions for summary judgment. Summary judgment is appropriate

only when the Court is satisfied “that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. S56(c); Anderson v.

Liberty Lobby, Inc,., 477 U.S. 242, 247-48 (1986); Allstate Fin.

Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991). The

3

moving party has the initial burden of establishing the absence

of a genuine issue of fact.’

, 477 U.S.

317 (1986). In determining whether the moving party has satis-

fied its burden, the Court considers all inferences drawn from

the underlying facts in the light most favorable to the party

opposing the motion, and resolves all reasonable doubts against

the moving party. Anderson, 477 U.S. at 255; Ballinger vy. North

Carolina Agric, Extension Sery,, 815 F.2d 1001, 1004 (4th Cir.

1987).

Once the movant has met this burden, and a properly

supported motion is before the Court, the non-moving party must

set forth specific facts showing that there is a genuine issue

for trial in order to defeat the motion. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Allstate,

’ “As to materiality, the substantive law will identify

which facts are material. Only disputes over facts that might

affect the outcome of the suit under the governing law will

properly préclude the entry of summary judgment. Factual

disputes that are irrelevant or unnecessary will not be counted.”

Anderson, 477 U.S. at 248. “Genuineness means that the evidence

must create fair doubt; wholly speculative assertions will not

suffice.” Ross Communications v. Communications Satellite Corp.

759 F.2d 355, 364 (4th Cir. 1985). Where no genuine issue of

material fact exists, the Fourth Circuit has imposed an

obligation on the trial judge “to prevent ‘factually unsupported

claims and defenses’ from proceeding to trial.” Felty v. Graves-

Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).

4

eee —

934 F.2d at 58. Summary judgment is proper if, based on the

evidence, “a reasonable jury could [not] return a verdict for the

non-moving party." Anderson, 477 U.S. at 248; Allstate, 934 F.2d

at 58.

ANALYSIS

Pursuant to a subpoena obtained by Petitioner to develop his

federal habeas case, Strickler obtained copies of Detective

Claytor’s notes and interview reports as well as copies of

materials sent to the Detective by Anne Stoltzfus. Early in the

investigation, Claytor conducted several interviews with

Stoltzfus. Claytor took notes of those interviews, prepared

formal reports of the interviews, and received letters and notes

from Stoltzfus. See Claytor’s Response (4/22/97), Attachment 1

to Motion for Summary Judgment. These materials are referred to

herein as “the Stoltzfus materials.”* Stoltzfus subsequently

testified at Strickler’s .une 1990 trial that she had witnessed

the abduction of the victim, Whitlock, from a Harrisonburg

shopping mall. According to the prosecutor, Stoltzfus was the

only eyewitness to the alleged abduction.

? The documents at issue (“the Stoltzfus materials”) are

attached as Exhibits 1-8 to the affidavits of William Bobbitt and

Humes Franklin filed with Petitioner's Summary Judgment Motion.

The notes, letters, and interviews of Stoltzfus contradicted

or impeached her trial testimony in many crucial respects. In

her first police interview on January 19, 1990, Stoltzfus cquld

not identify the black woman that she said she saw in the car at

the time of the alleged abduction, and Stoltzfus provided no

description of the woman’s clothing. Ex. 1. Det. Claytor’s

handwritten report states that Stoltzfus could not identify the

black female, but this fact is omitted from his subsequent typed

report. On January 25, 1990, Stoltzfus wrote a note to Det.

Claytor stating that she had spent “several hours with John Dean

(the victim’s boyfriend] ‘ooking at current photos from which I

made the identification.” Ex. 6. After viewing Dean’s photos,

she was able to identify Whitlock, and by the time of trial that

identification had been expanded considerably. Stoltzfus

described Whitlock as appearing to be “a rich college kid,”

“singing” and “happy.” Transcript of June 18 - 21, 1990 Trial

(*Sec"2 eal. Stoltzfus described the clothing Whitlock was

wearing. These inconsistencies were extremely material for

cross-examination.

When interviewed by the police on January 19 and 22, 1990,

Stoltzfus “was not sure she could identify the white males but

——

felt sure she could identify the white female” who had been with

them at the mall. Ex. 2. According to Det. Claytor’s typed

report, when Stoltzfus was shown a photo array, she could not

positively identify Strickler but stated only that he “resembled”

one of the men she had seen. Stoltzfus stated that his hair

color was not right. Ex. 2. She suggested that she might be

able to make a positive identification if she saw Strickler in

person. This directly contradicted her trial testimony that she

was “one hundred percent sure” when she made her identification

of Strickler from the photographs. Tr. 501. Stoltzfus was also

unable to make a positive identification of Henderson (said to

have been with Strickler at the time of the alleged abduction)

from the photo spread. At trial, Stoltzfus testified that she

was certain of her identifications of both Strickler and

Henderson but was unable to identify the white woman with them.

However, her initial interviews appear to have been contradictory

to this testimony.

In gt ll 19 and 22 interviews with Det. Claytor,

Stoltzfus gave no description of Strickler’s clothing and stated

only that Henderson wore a cream colored jacket. In later

letters to Claytor and in her trial testimony, she provided

detailed descriptions of Strickler’s clothing. Ex. 7, 8. She

7

also gave a detailed description of the physical features and

clothing of the white woman allegedly accompanying them. Ex. 7.

Stoltzfus sent Det. Claytor a letter dated January 22, 1990,

just three days after her first interview. Ex. 4. In that

letter she indicates that she initially had no memory of being at

the mall on January 5S, 1990:

I want to clarify some of my confusion for you. First of

all, I tend to remember things in pictures rather than in

over-all logical constructs. When I didn’t remember any

Mall purchases, I didn’t remember being there. But my 14-

year-old daughter Katie remembers different things and her

sharing with me what she remembers helped me job my memory.

Not only does this letter provide impeachment material, it

provides a basis for which Stoltzfus’s testimony might have been

excluded altogether. She admits that she did not recall being at

the mall on January 5, but that her “memory” of these events was

based on what her daughter told her. Moreover, the letter

indicates that Stoltzfus gave Det. Claytor information that never

appeared in any of his notes, i.e., that she had not remembered

being at thé mall on the night Whitlock was allegedly abducted.

This information, a: a minimum, would likely have been extremely

valuable in attacking her credibility with the jury, if counsel

were not successful in actually barring her testimony altogether.

Claytor’s handwritten notes of January 19, 1990 contain no

mention of Stoltzfus’s described encounter with Strickler and

Henderson in a music store in the mall. Ex. 1. The typed report

states only that Stoltzfus may have seen the same blond haired

man and a white woman inside the mall. The woman, according to

the report, bumped into Stoltzfus, and the man had been yelling

at the woman and appeared agitated. Ex. 2. Again Stoltzfus’s

subsequent letters present a detailed description of her alleged

encounter in a music store with Strickler and Henderson.

Stoltzfus subsequently gave this testimony at trial. In the

January 22 letter, Stoltzfus stated she was uncertain that the

man she saw in the mall was even the same man that she later

testified she saw approach Whitlock’s car. ex. 4. Stoltzfus was

also very uncertain of what she “saw” in the parking lot, in

direct contrast to her trial testimony:

; It seems

as if the wild guy that I saw had come running through the

door and up to a bus as the bus was pulling off. I have

impressions of intense anger, of his going back to where the

dark haired guy and girl were standing. Then the guy I saw

came running up to the black girl’s window? Were those 2

memories the same person?

(emphasis added). The letter continues:

I’m sorry my initial times were so far off. First I

remembered it being dark and remembered driving on past

Leggetts and not going in. I placed the time around 9:00 pm

closing. Later I thought I hadn't gone into the Mall

4

Katie remembered the small

Centerpoint purchase and I knew that if that happened

January 5 I could trace our path from there.

(emphasis added). Once again Stoltzfus appeared to have admitted

that she had not remembered being in the mall that night. Her

“memory” appears to be based on what her daughter had told her.

A letter dated January 26, 1990, to Det. Claytor provides

further impeachment material. Ex. 7. Stoltzfus wrote:

Thank you for your patience with my sometimes muddled

memories. I know if I believed at the time that I was

witnessing a crime I would have much, much more vivid

memories. I really didn’t believe that’s what I saw until I

saw Leanne’s pictures. In fact, I’m not sure that if Kim

Davis hadn’t called the police and that other detective

hadn’t come to JMU and asked me to come in and talk to you,

i_never would have made any of the associations that you

helped me make.

(emphasis added). Stoltzfus’ memory of the events to which she

testified appears to be muddled at best. Strickler likely could

have utilized that in an effort to convince the jury that

Stoltzfus’ story was concocted with the assistance of the police,

after viewing the evidence and photographs, after hearing

discussions of the crime on campus, and perhaps influenced by the

pervasive news coverage of Whitlock’s murder. As the Supreme

Court has noted, the evolution of a witness’ description over a

period of time can be fatal to its reliability. See Kyles v.

Whitley, 514 U.S. 419, 444 (1995).

10

A plethora of additional impeachment material is contained

in the Stoltzfus materials which is not set forth here. The

Court has discussed herein several of the documents that appear

to be genuinely in dispute (Exhibits 2, 7, and 8) because it is

necessary to refer to them to point out contradictions with

Stoltzfus’ other statements in the documents about which there is

no genuine material dispute (Exhibits 1 and 3-6). However, even

if the three documents that are in dispute were provided to

Strickler’s trial counsel, the other five documents that are not

in dispute in the Court’s view are sufficient to constitute a

Brady violation and support the instant motion for summary

judgment. The five documents containing the Stoltzfus’ letters

and notes to Det. Claytor provided potentially devastating

impeachment material, casting doubt on her testimony.

Materiality of the Stoltzfus Materials

Respondent argues unsuccessfully that the suppressed

documents were not “material” under Brady and therefore, the

prosecutor had no obligation to disclose them to defense counsel.

The Commonwealth's Attorney’s argument on summation at

Strickler’s trial refutes this. The prosecutor argued that

Stoltzfus’ testimony established both the abduction predicate and

the armed robbery predicate for the capital murder count:

11

Pirst of all, Leanne Whitlock was abducted. There is

absolutely no question about that. Ms. Stolzfus [sic] says

that she was right behind Leanne’s car when this “Mountain

Man” who she identified as the defendant came out, forcibly

opened the car door, jumped in, fought with Leanne, slapping

her, hitting her a few times and then drove off with Ms.

Whitlock. She was brought here to Augusta County where she

was detailed, where she was taken by abduction. Absolutely

no issue about that.

Tr. at 794.

* * «*

And we are lucky enough to have an eyewitness who saw what

happened out there in that parking lot. A lot of cases you

don’t. A lot of cases you can just theorize what happened

in the actual abduction. But Ms. Stoltzfus was there, she

saw what happened.

Tr. at 799. The Commonwealth’s Attorney then repeated Stoltzfus’

testimony in detail. (Tr. 799-801). He argued to the jury based

on Stoltzfus’ testimony that Strickler had a knife and that he

held it against Whitlock as she drove out of the mall:

(Whitlock) looked at [Stoltzfus] and then looked down again.

Why was that? I suggest to you that this man had a knife.

He had the knife that he carries with him al the time. He

had a knife later on with him in the car. That was pressed

xight up against Leanne, ... Ms. Stolzfus [sic] positively

identified Mr. Strickler as the man who first got into the

car. The man who struck Leanne Whitlock both times, the man

that sat right beside her when she was forced to drive off.

It was him, the evidence shows it was him.

Tr. 800-01 (emphasis added).

Stoltzfus described Strickler alone as committing violent

acts against Whitlock-- he forced his way into her car and struck

her repeatedly. In this way, the Commonwealth’s Attorney used

12

Stoltzfus to prove that Strickler was the instigator and leader

in Whitlock’s abduction and, by inference, in her murder. No

other witness placed Strickle~ in the vicinity of Whitlock, her

car, or the parking lot during the time period in which Whitlock

was believed to have been at the mall. Despite widespread

publicity about Whitlock’s case, no other witness came forward to

report the very public events that Stoltzfus claims to have

witnessed. Stoltzfus was the critical witness on the abduction

count.

Likewise, no other witness saw Strickler with a knife or any

other weapon when at the mall. Stoltzfus herself never testified

that Strickler had a knife when he was in the mall or allegedly

in the car with Whitlock. That inference was provided by the

prosecutor based on Stoltzfus’ claim that Whitlock looked down

while Strickler sat beside her in the car. Again, Stoltzfus was

the critical witness for the armed robbery predicate based on

what she “observed” in the parking lot. Thus, as the

Commonwealth's Attorney recognized, Stoltzfus’s testimony played

a central role in Strickler’s conviction and portrayed Strickler,

rather than Henderson, as the leader and instigator in the

violent abduction and robbery. Without Stoltzfus’ testimony,

which appears likely to be less certain than she portrayed, the

13

jury may well have been reduced to speculation concerning these

events and concerning the role played by Strickler. The jury

could have found Henderson as the leader and instigator instead

of Strickler.

Respondent relies on evidence that Strickler had Whitlock’s

car and possessions sometime after Stoltzfus “witnessed” the

alleged abduction and armed robbery to establish that the

suppressed Brady materials could not undermine confidence in the

outcome of the trial. This argument ignores substantial evidence

that could have led a jury to believe that Henderson, rather than

Strickler, was the ring-leader in Whitlock’s abduction, robbery,

and death. Henderson’s clothes had blood on them that night.

Henderson had property belonging to Whitlock and gave her watch

to a woman, Simmons, while at a restaurant known as Dice’s Inn.

Tr. 541. Henderson left Dice’s Ifin driving Whitlock’s car.

Henderson’s wallet was found in the vicinity of Whitlock’s body

and was possibly lost during his struggle with her.

Significantly, Henderson confessed to a friend on the night of

the murder that he had just killed an unidentified black person

and that friend observed blood on Henderson’s jeans.’ Thus,

*At Henderson’s trial, the Commonwealth called this friend

as its own witness to establish Henderson's guilt.

14

Stoltzfus’ testimony was not irrelevant to Strickler’s conviction

as Respondent maintains.

Without Stoltzfus’ testimony, the jury could have concluded

that Henderson was responsible for the abduction, robbery, and

murder, and that Strickler was an accessory after the fact or a

principal in the second degree but not a principal in the first

degree to capital murder. The court had charged the jury on the

offense of first degree murder. Conviction of a lesser offense

was a reasonable probability if defense counsel had been given

the Stoltzfus materials. Given that Stoltzfus initially did not

even remember being at the mall on the night Whitlock was

abducted, was later unsure whether the man she saw in the mall

was the same one who approached Whitlock’s car, and the large

amount of impeachment material conteined in the Stoltzfus

materials, Strickler has satisfied the materiality requirement

under Brady and Kyles. The undisclosed evidence “put(s) the whole

case in such a different light as to undermine confidence in the

verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). As Kyles

emphasized, materiality does not require proof that the defendant

would be acquitted or that the evidence was insufficient absent

the Brady violation. A reasonable probability of conviction on a

lesser count satisfies the Brady standard.

15

Respondent’ s Duty to Disclose the Stoltzfus Materials

Exculpatory and impeachment material that is in the

possession and control of the state must be disclosed to the

defendant prior to trial. See generally, Kyles v. Whitley, 514

U.S. 419 (1995); Giglio v. United States, 405 U.S. 150 (1972);

Brady v. Maryland, 373 U.S. 83 (1963). Respondent fails to offer

a single piece of evidence to rebut Strickler’s contention that

his trial counsel was never provided with Exhibits 1, 3, 4, 5,

and 6. Instead, Respondent argues that under Brady, the

Commonwealth is required to disclose only evidence that is not

available to the defense from other sources, either directly or

through diligent investigation. See Barnes v. Thompson, 58 F.3d

971, 975-77 (4th Cir. 1995), cert. denied, 116 S. Ct. 4351

(1995). Respondent claims that there is no Brady violation if

the information lies in a source where a reasonable defendant

would have looked, Barnes, 58 F.3d at 975, and argues that the

extent of Strickler’s investigation at trial is an unresolved

factual issue. Respondent further states that the Stoltzfus

materials were available to Strickler because he had notice ~

shortly before the June 1990 trial that Stoltzfus would be a

witness.

The Court disagrees. Even though the identity of the

16

a

witness was known to the defendant before trial, the Stoltzfus

materials were not available to the defense because they were not

in a public file until subpoenaed during federal habeas

proceedings. See Kyles vy. Whitley, 514 U.S. 419 (1995) (holding

that prosecutor violated Brady and noting that investigatory

interviews are not available to defendant, even when names of

witnesses and their testimony are known to defense); United

States v. Kelly, 35 F.3d 929 (4th Cir. 1994) (reversing

conviction and ordering new trial where impeachment material was

not in public file and rejecting argument that evidence was

available to defense with reasonable diligence).

Respondent’ s Failure To Disclose the Stoltzfus Materials

Augusta Commonwealth’s Attorney Ervin prosecuted Strickler.

Ervin had an open file policy such that Strickler’s trial

counsel, William E. Bobbitt, Jr., had full access to the

prosecution’s files. Both Bobbitt and co-defendant Henderson’s

defense counsel, Humes Franklin, have submitted affidavits

Stating that none of the Stoltzfus materials were in the

prosecutor’s open files which both defense attorneys reviewed in

preparing their respective cases, and that they were not aware of

the existence of these materials until 1997. See Bobbitt

Affidavit (8/19/97), Attachment 2 to Petitioner’s Motion For

17

Summary Judgment; Franklin Affidavit (9/5/97), Attachment 3 to

Petitioner’s Reply To The Warden’s Response In Opposition To

Strickler’s Motion For Summary Judgment.

Of the eight Exhibits that comprise the Stoltzfus materials,

Commonwealth Attorney Ervin only recalls reviewing Exhibits 2, 7,

and 8 before Strickler’s trial. He states that those three

documents were in his open prosecution file and thus were

accessible to defense counsel. However, Ervin does not remember

reviewing Exhibits 1 or 3-6 prior to or during Strickler’s trial.

See Ervin Affidavit, Attachment 6 to Petitioner’s Supplemental

Memorandum In Further Support Of His Motion For Summary Judgment.

Detective Claytor states via affidavit that he recalls

distributing his typed report, Exhibit 2, to the Rockingham

prosecutor but does not recall distributing any of the other

materials prior to or during Strickler’s trial. He only recalls

producing those documents in response to the subpoena requested

by Strickler’s current federal habeas counsel. It appears that

Strickler’s trial counsel, his co-defendant Henderson’s trial

counsel, and the prosecutor all saw Exhibits 1 and 3-6 for the

first time when Det. Claytor produced them from his private files

to comply with the federal subpoena.

Respondent produced no evidence that Strickler was provided

18

with Exhibits 1 or 3-6 of the Stoltzfus materials until four

working days before the scheduled evidentiary hearing and several

weeks after briefing on the cross-motions for summary judgment

had been completed, at which time Respondent submitted a one

paragraph affidavit by Bobbitt’s co-counsel, Thomas E. Roberts,

and a newspaper article. Roberts states by affidavit that he

cannot recall seeing any of the Stoltzfus materials, but

remembers the information contained in them. He further states

that he remembers “discussing with Bobbitt the possibility that

Ms. Stoltzfus may not be a creditable witness because she had not

come forward immediately and her story had become much more

detailed over time.” Roberts Affidavit.

The Court is somewhat skeptical about the accuracy of

Roberts affidavit statements. The prosecutor, lead defense

counsel for Strickler, and lead defense counsel for co-defendant

Henderson all stated by affidavit that they did not see Exhibits

1 or 3-6 of the Stoltzfus materials before or during their

respective trials. Roberts has failed to account for how he,

unlike all the other participants in these trials, became aware

of the plethora of information and impeachment material contained

in the Stoltzfus documents. If Roberts was aware of the

information contained in the Stoltzfus documents, one wonders why

19

he and Bobbitt would have chosen not to use such powerful

impeachment material on cross-examination to cast doubt on the

credibility of Stoltzfus, a crucial witness for the Commonwealth.

Despite the Court’s skepticism regarding the accuracy of

Roberts’ affidavit statements, the Court nonetheless accepts

Roberts’ recollections as accurate and true for the purposes of

summary judgment. Even accepting Roberts’ statements as accurate

and truthful, they are much too vague and insufficient to create

a genuine dispute that Exhibits 1, 3, 4, 5, and 6 of the

Stoltzfus materials were disclosed to defense counsel in light of

all of the evidence to the contrary provided by Strickler and

cited herein. The only specific details Mr. Roberts recalls as

impeaching Stoltzfus’ testimony is that her story evolved over

time and that she had not come forward immediately. Those

details are but a portion of the contradictions and discrepancies

found within the Stoltzfus materials which have been recounted

only in part herein.

The Respondent also submitted a newspaper article from the

“Roanoke Times & World-News” dated Sunday, June 17, 1990, the day

before Strickler’s trial began, and contends that this article

contains all of the facts that Strickler claims were wrongfully

withheld from him in violation of Brady. The Court disagrees

with Respondent. This article does include some information that

was also included in the Stoltzfus materials. For example, the

article states that the individual interviewed, who appears to be

Stoltzfus, at some point looked at pictures of Whitlock with John

Dean, Whitlock’s boyfriend, although it is not clear from the

article whether this occurred before or after Stoltzfus

identified Strickler. The article has a few details that might

have been helpful to Strickler if he did not already know them.

Besides these few details, however, the article contains

virtually none of the information contained in the Stoltzfus

materials and certainly did not relieve the Commonwealth from the

burden of providing the Stoltzfus materials to Strickler.

Respondent has not offered evidence to show that the abundance of

information in the Stoltzfus materials were provided to Strickler

or would have been available to him through diligent

investigation. A newspaper article which may not have been seen

by defense counsel simply does not equate to a prosecutor’s

obligation under the law.

Thus, the evidence produced by Respondent, viewed in the

light most favorable to Respondent, is insufficient to create a

genuine factual dispute as to whether the Commonwealth ever

provided Exhibits 1, 3, 4, 5, or 6 -- the majority of the

21

Stoltzfus materials -- to Strickler. The uncontradicted fact is

that it had not. The Commonwealth had an affirmative duty to

disclose those materials to Strickler’s trial counsel because

they contain exculpatory and impeachment miedetis and are also

“material” under Brady and its progeny.

CONCLUSION

Based on the materials disclosed pursuant to Court ordered

discovery, the facts demonstrate that Exhibits 1 and 3-6

contained Brady material that was in the possession of the

Harrisonburg police department, that the Brady material was not

contained in the Augusta Commonwealth’s Attorney’s files, that

_Strickler’s trial counsel reviewed the prosecutor’s files

pursuant to the “open file” policy, and that the relevant

materials were not contained in the file. The pretrial motions

and the trial transcript demonstrate the Commonwealth's

Attorney’s knowledge that several separate police departments and

jurisdictions had been involved in the investigation of

Strickler’s aed The Commonwealth's Attorney called several of

these officers as witnesses. He was clearly on notice that the

d

files of these other agencies might contain material required to

be disclosed to the defense attorney. Whether from good faith or

bad, the effect is that these undisclosed materials were

suppressed by the prosecution and never disclosed to Strickler’s

trial attorney. For the foregoing reasons, the Court will DENY

Respondent’s motion, GRANT Petitioner’s Motion for Summary

Judgment on Claims J and U, thereby vacating Petitioner's

conviction. An appropriate Order will enter.

LALA Med |

OCT 1 5 1997, UNITED STATES DISTRICY JUDGE

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police. —A. It shall be the duty of the iff or chief of police of every locality

to insure, in addition to other records required oF gee pemve deg

adequate personnel, arrest, —t my tive incidents, noncrimi-

nal incidents records necessary for efficient operation of a law-enforcement

agency. Failure of a sheriff or a chief of police to maintain such records or

files for preparation of a defense in any suit or action arising from the

of their i i i chief of police. The enforcement

of this section shall be the duty of the attorney for the Commonwealth of the

county or city wherein the violation occurs. Except for information in the

custody of law-enforcement officals relative to the identity of any individual

other a juvenile who is arrested and charged, and the status of the charge

of arrest, the records required to be maintained by this section shall be exempt

from the provisions of 21 (§ 2.1-340 et seq.) of Title 2.1.

|

“Noncriminal incidents records” means compilations of noncrimina! occur-

rences of general interest to law-enforcement ncies, such as missing

persons, lost and found , suicides and accidental deaths.

“Personnel records” means records maintained on each and every

individual employed by a law-enforcement agency which reflect personal data

concerning the smomyess ea, length of service, amount of training, educa-

tion, compensation level, other pertinent personal information.

ble incidents records” means a compilation of complaints received

a law-enforcement and action taken the , rg! in response

. (1975, c. 290, § 15.1-135.1; 1979, c. 686; 1981, c. ; 1997, c. 587.)

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Rule 3A:11. Discovery and Inspection.

(a) yee wth of Rule. — This Rule applies only to prosecution for a felony

in a circuit court. ;

Discove the Accused. — (1) Upon written motion of an accused a

atta the Commonwealth's attorney to permit the accused to

confessi | made accused, or copies thereof, or the substance of any

pe pro or eee made by the accused to any law enforcement

officer, the existence of which is known to the attorney for the so sree nat te

and (ii) written reports of autopsies, ballistic tests, fingerprint analyses,

handwriting analyses, blood, urine and breath tests, other scientific —

and written reports of a physical or mental examination of the accused or

designated books, , documents, tangible objects, buildings or places, or

copies nee are A ate that are within the possession, custody, or control of

the Commonwealth, upon a showing that the items sought may be tn

ion of his defense and that the request is reason e.

ecmen tind not authorize the discovery or inspection of statements

made by Commonwealth witnesses or prospective Commonwealth witnesses to

agents of the Commonwealth or of reports, memoranda or other internal

Commonwealth documents made by agents in connection with the investiga-

tion or prosecution of the case, except as provided in clause (ii) of subparagraph

(bX1) of this Rule.

° 32 eae

Rule 4:1. General Provisions Governing Discovery.

(a) Discovery Methods. — Parties may obtain discovery by one or more of the

following methods: depositions upon oral examination or written questions;

written interrogatories; production of documents or things or permission to

enter upon land or other property, for inspection and other purposes; physical

and mental examinations; and requests for admission.

(b) Scope of Discovery. — Unless otherwise limited by order of the court in

accordance with these Rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in the pending

action, whether it relates to the claim or defense of the party seeking discovery

or to the claim or defense of any other party, including the existence,

description, nature, custody, condition and location of any books, documents, or

other tangible things and the identity and location of persons having know!l-

edge of any discoverable matter. It is not ground for objection that the

information sought will be inadmis:.ole at the trial if the information sought

appears reasonably calculated to lead to the discovery of admissible evidence. |

Subject to the provisions of Rule 4:8 (g), the frequency or extent of use of the ©

discovery methods set forth in subdivision (a) shall be limited by the court if it

determines that: (i) the discovery sought is unreasonably cumulative or

duplicative, or is obtainable from some other source that is more convenient,

less burdensome, ox less expensive; (ii) the party seeking discovery has had

ample opportunity by discovery in the action to obtain the information sought;

or (iii) the discovery is unduly burdensome or expensive, taking into account

the needs of the case, the amount in controversy, limitations on the parties’

resources, and the importance of the issues at stake in the litigation. The court

may act upon its own initiative after reasonable notice to counsel! of record or

pursuant to a motion under subdivision (c).

(5) Limitations on Discovery in Certain Proceedings. In any proceeding (1)

for separate maintenance, divorce, or annulment of marriage, (2) for the

exercise of the right of eminent domain, or (3) for a writ of habeas corpus or in

the nature of coram nobis; (a) the scope of discovery shall extend only to

matters which are relevant to the issues in the proceeding and which are not

privileged; and (b) no discovery shall be allowed in any proceeding for a writ of

habeas corpus or in the nature of coram nobis without prior leave of the court,

which may deny or limit discovery in any such proceeding. In any proceeding

.for divorce or annulment of marriage, a notice to take depositions must be

served in the Commonwealth by an officer authorized to serve the same, except

that, in cases where such suits have been commenced and an appearance has

-been made on behalf of the defendant by counsel, notices to take depositions

may be served in accordance with Rule 1:12.

CERTIFICATION

I hereby certify that two copies of the enclosed Petition For

A Writ Of Certiorari were served by hand on counsel for Respondent,

Pamela Rumpz, Assistant Attorney General, Office of the Attorney

Gengral, 900 E. Main Street, Richmond, VA 23219 on

, 1998.

B L. HARTUNG

eee fret |

VIRGINIA:

[IN THE CIRCUIT COURT OF AUGUSTA COUNTY

TOMMY DAVID STRICKLER,

Petitioner,

y. Case No. CL 92000305

EDWARD W. MURRAY, et.al.

Respondents.

MOTION TO DISMISS

Now cume the respondents, by counsel, and move this Court to deny and dismiss the

petition for writ of habeas corpus.

PROCEDURAL HISTORY

Petitioner is being detained pursuant to judgments of this Court dated September 19,

ee ee ee ee eee

1990, in which he was convicted of capital murder, abduction and robbery. Based on findings

Ro nem

uf horh “vileness” and “future dangerousness,” he was sentenced to death for capital murder.

He wus sentenced tw life imprisonment for each of the non-capital felonies.

The Virginia Supreme Court unanimously affirmed petitioner’ s capital murder conviction

and death sentence on April 19, 1991. The court also unanimously affirmed the remaining

felony convictions. §trickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227 (1991), |

Sirickler’s petition for a writ of certiorari to the United States Supreme Court was denied on

November 4. 1991. Strickler v. Virginia, 112 S. Ct. 386 (1991).

000518

one of those selected had formed any opinion at all. (Tr. 119 [Hickox]). See Patton v

Jur

467 U.S. 1025, 1029-1030 (1984) (defendant not denied fair trial even where 77% of veniremg

admitted they would carry an opinion into the jury box, and 8 out of 14 actually seated admitte

they had formed an opinion as to defendant's guilt.) The record shows that there was simpt

no need for either a change of venue or a change of venire.

Claim 2

The petitioner next claims that counsel were ineffective for failing to file a motion fc

exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.*

From the inception of this case, the prosecutor's files were open to the petitioner's

counsel, Each of the petitioner's attorneys made numerous visits to the prosecutor's offices and

reviewed all the evidence the Commonwealth intended to present. Both attorneys were taken

together to the crime scene, accompanied by the two prosecutors and the chief investigator, and

shown the location of the evidence found there. No evidence was introduced at trial of which

the petitioner's counsel had been previously unaware. (See Resp. Exh. |, 4 3). Given ha

counsel were voluntarily given full disclosure of everything known to the government, there was

im need for a fermal motion. The petitioner has failed to proffer any exculpatory or favorable

evidence of which trial counsel were unaware.

In addition, counsel could have made a tactical decision not to file such a motion,

because it would have made reciprocal discovery available to the Commonwealth under Rule

JA: 11(c) of the Rules of the Supreme Court of Virginia. Counsel thus would have been

*Counsel did file a Motion for a Bill of Particulars, parts of which were denied on the

grounds that the material requested was actually “discovery.” (Tr. 7-8, 14, 18-21).

25

0G0542

& @

| Fsuired to disclose any highly prejudicial information then known to them, e.g,, the report of

=. Warren. (See Resp." Exh. 6). Because the decision to forego a formal discovery motion

rcould have been the result of reasonable trial strategy, the petitioner cannot show ineffectiveness

under Strickland. 466 U.S. at 629: Darden, 477 U.S. at 186. Nor, when counsel in fact

Jobtained all the information to which they were entitled under Brady, can he show prejudice.

Se This claim must therefore be denied and dismissed.

Claims 5 and 4

In these two claims, the petitioner alleges that counsel were ineffective for failing to

me? question the venire about their racial attitudes in order to determine whether the veniremen

PX would be inclined to impose the death penalty:

(a) to atone for the racism of whites and the past oppression of blacks (Claim 3), and

a (b) to help equalize the imposition of death sentences for white and black defendants.

(Claim 4)

In preparing for trial. counsel discussed and considered whether to ask the veniremen

about possible racial bias. They chose not to make such inquiry for sound tactical reasons.

They did not want to emphasize the fact that the victim was black and the petitioner was white

because they did not want to either imply that the veniremen were biased, thereby alienating

-

>

, them, or to inadvertently suggest that the most severe punishment was appropriate because the

crime was interracial. They could not conclude with any certainty what effect such questions

26 0G0343

AP PEN DIX« F

«’

ti

& & Wats

VIRGINIA: ,

—-

(\ THE CIRCUIT COURT OF AUGUSTA COUNTY

TOMMY DAVID STRICKLER,

Petitioner,

¥. : Case No. CL 92000305

EDWARD W. MURRAY, et.al.

Respondents.

Now cume the respondents, by counsel, and move this Court to deny and dismiss the

petition for writ of habeas corpus

PROCEDURAL HISTORY

Petitioner is being detained pursuant to judgments of this Court dated September 19,

1990. in which he was convicted of capital murder, abduction and robbery. Based on findings

ut horh “vileness” and “future dangerousness,” he was sentenced to death for capital murder.

He wa sentenced & life imprisonment for each of the non-capital felonies.

The Virginia Supreme Court unanimously affirmed petitioner’ s capital murder conviction

and death sentence on April 19, 1991. The court also unanimously affirmed the remaining

felony convictions. Strickler v. Commonwealth. 241 Va. 482, 404 S.E.2d 227 (1991).

Sirickler’» petition for a writ of certiorari to the United States Supreme Court was denied on

November 4. 1991. Strickler v. Virginia, 112 S. Cr. 386 (1991).

000318

one of those selected had formed any opinion at all. (Tr. 119 [Hickox]). See Parton v

*,

467 U.S. 1025. 1029-1030 (1984) (defendant not denied fair trial even where 77% of venirer

admitted they would carry an opinion into the jury box, and 8 out of 14 actually seated admig

they had formed an opinion as to defendant's guilt.) The record shows that there was simp

ny need for either a change of venue or a change of venire.

Claim 2

The petitioner next claims that counsel were ineffective for failing to file a motion fe

exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.*

From the inception of this case, the prosecutor's files were open to the petitio

counsel. Each of the petitioner's attorneys made numerous visits to the prosecutor's offices

reviewed all the evidence the Commonwealth intended to present. Both attorneys were takeg

together to the crime scene, accompanied by the two prosecutors and the chief investigator,

shown the location of the evidence found there. No evidence was introduced at trial of which

the petitioner's counsel had been previously unaware. (See Resp. Exh. |, ¢ 3). Given th

counsel were voluntarily given full disclosure of everything known to the government, there was

m need for a formal motion. The petitioner has failed to proffer any exculpatory or favorable

evidence of which trial counsel were unaware.

In addition, counsel could have made a tactical decision not to file such a motion,

because « would Nave made reciprocal discovery available to the Commonwealth under

b

3A: 1 1(c) of the Rules of the Supreme Court of Virginia. Counsel thus would have bees

’

‘Counsel did file a Motion for a Bill of Particulars, parts of which were denied on the

grounds that the material requested was actually “discovery.” (Tr. 7-8, 14, 18-21).

25

0G0542

ak

> Bs

squired to disclose any highly prejudicial information then known to them, e¢.g,, the report of

Dr. Warren. (See Resp. Exh. 6). Because the decision to forego a formal discovery motion

mcould have been the result of reasonable trial strategy, the petitioner cannot show ineffectiveness

under Strickland. 466 U.S. at 689: Darden, 477 U.S. at 186. Nor, when counsel in fact

Mobtained all the information to which they were entitled under Brady, can he show prejudice.

This claim must therefore be denied and dismissed.

Claims 3 and 4

In these two claims, the petitioner alleges that counsel were ineffective for failing to

a

question the venire about their racial attitudes in order to determine whether the veniremen

would be inclined to impose the death penalty:

(a) to atone for the racism of whites and the past oppression of blacks (Claim 3), and

(b) to help equalize the imposition of death sentences for white and black defendants.

(Claim 4)

In preparing for triai. counsel discussed and considered whether to ask the veniremen

about possible racial bias. They chose not to make such inquiry for sound tactical reasons.

They did not want to emphasize the fact that the victim was black and the petitioner was white

because they did not want to either imply that the veniremen were biased, thereby alienating

, them, or to inadvertently suggest that the most severe punishment was appropriate because the

- cfime was interracial. They could not conclude with any certainty what effect such questions

26 0G0343

eS wea sS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

TOMMY DAVID STRICKLER

Petitioner,

Vv. Case No. 3:95-CV-924

J.D. NETHERLAND, Warden

ee ee ee ee ee ee ee eee ee

Respondent.

CITY OF STAUNTON

COUNTY OF AUGUSTA

AFFIDAVIT OF WILLIAM E. BOBBITT, JR.

William E. Bobbitt, Jr., being duly sworn, states as

follows:

1. I am the Public Defender for Augusta and Rockbri

Counties and the cities of Staunton, Waynesboro, and Buena Vis

In that capacity, I was assigned to represent Tommy David

Strickler in his capital murder trial in Augusta County.

2. The jury trial was conducted in June, 1990, in

Augusta County. I was assisted by Thomas E. Roberts, then a

part-time Assistant Public Defender.

3. Prior to trial, I reviewed the materials in the

files of the Commonwealth’s Attorney for Augusta County. The

prosecutor had an open file policy, and I had access to these

files on more than one occasion. I was permitted to make copi

of any materials.

4. I have reviewed the attached Exhibits 1-7

; consisting of Det. Claytor’s notes of interviews with Ann

€

Stoltzfus and letters and notes from Ann Stoltzfus to Det.

q Claytor.

ae have no recollection of seeing any of this

3 material in the Commonwealth’s files during my pretrial review of

_ the files or at any time during trial. I have reviewed my own

files from the case, and I do not have copies of any of the

material contained in Exhibits 1-7.

6. I have reviewed my cross-examination of Anne

Stoltzfus during Strickler’s trial. My cross-examination

questions do not rely on any of the materials in these exhibits.

I conclude that none of these materials were in the

Commonwealth’s files when I examined them.

7. “I first learned these materials existed when they

were shown to me sometime in 1997.

8. The material] in Exhibits 1-7 provides powerful

impeachment material and should have been disclosed to me

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v.

Whitley, 115 S. Ct. 1555 (1995). If I had known these materials

existed, I would have used them on cross-examination.

9. Anne Stoltzfus testified that she was an eyewitness

to the abduction of Whitlock by Strickler and Henderson. Her

testimony provided evidence against Strickler on both the

abduction and robbery predicates to the capital murder charge.

Thus, she was,a critical witness.

10. The notes, letters and interviews of Anne

7 =

Stoltzfus contradicted or impeached her trial testimony in a *

number of respects.

ll. In her first police interview on January 19, 199

Stoltzfus could not identify the black woman in the car at the

Stoltzfus provided no description of her clothing.

mall, and

1. Det. Claytor’s handwritten report states that Stoltzfus cou

not identify the black female, but this is omitted from his

subsequent typed report. On January 25, 1990, Stoltzfus wrote @

note to Det. Claytor stating that she had spent “several hours

with John Dean (Whitlock’s boyfriend) looking at current photos

After viewing

from which I made the identification.” Ex. 6.

Dean’s photos, she was able to identify Whitlock, and by the ti

of trial that identification had been expanded considerably.

Stoltzfus described Whitlock as "a rich college kid," “singing”

and happy. Stoltzfus described the clothing she was wearing.

These inconsistencies were material for cross~examination.

12. When interviewed by the police on January 19 and

22, 1990, Stoltzfus “was not sure she could identify the white

males but felt sure she could identify the white female" who had

been with them at the mall. Ex. 2. According to Det. Claytor’s

typed report, when Stoltzfus was shown a photo array, she could

not positively identify Stickler but stated only that he

"resembled" one of the men she had seen. Stoltzfus stated that

his hair color was not right. Ex. 2. She suggested that she

might be able to make a positive identification if she saw

Strickler in person. This directly contradicted her trial

that she was “one hundred percent sure" when she made

sstimony

= identification of Strickler from the photographs. Tr. 478-

5. Stoltzfus was also unable to make a positive identification

of Henderson from the photo spread. At trial, Stoltzfus

testified that she was certain of her identifications of both

strickler and Henderson but was unable to identify the white

woman with them. However, her initial interviews stated the

13. In the January 19 and 22 interviews with Det.

Claytor, Stoltzfus gave no description of Strickler’s clothing

and stated only that Henderson wore a cream colored jacket... In

later letters to Claytor and in her trial testimony, she provided

Ex. 7, 8. She

detailed descriptions of Strickler’s clothing.

lalso gave a detailed description of the physical features and

clothing ef the white woman accompanying then. Ex. 7.

‘ 14. Stoltzfus sent Det. Claytor a letter dated January

Ex. 4. In

22, 1990, just three days after her first interview.

that letter she indicates that she initially had no memory of

being at the mall on January 5, 1990: |

I want to clarify some of my confusion for you.

First of to all, I tend to remember things in pictures

rather than in over-all logical constructs. When I

didn’t remember any Mall purchases, ! didn’t remember

being there. But my 14-year-old daughter Katie

remembers different things and her sharing with

she remembers helped me jog my memory.

me what

f

Not only does this letter provide reams of impeachment material,

it provides a basis to exclude Stoltzfus’s testimony altogether.

She admits that she did not recall being at the mall on January

mGLOLS

Stoltzfus contradi

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