# Appendix — Strickler v. Greene

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0290%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 263

## Text

EDITOR'S NOTE

THE FOLLOWING PAGES WERE poo
AT THE TIME OF FILMING, IF i ten

BETTER COPY CAN
WILL BE ISSUED.

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

Jae i
HH pln PE i
a. : the 385 fetal HH Han
o itt) san Gb nehe
Aad HHT ; i 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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Ne er meeente, © Ne bas Se meet and chiet, of
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.

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“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 contradicted or impeached her trial testimony in a”
number of respects.

11. In her first police interview on January 19, 19
Stoltzfus could not identify the black woman in the car at the
mall, and Stoltzfus provided no description of her clothing.
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
from which I made the identification.” Ex. 6. After viewing
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 ha
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

“Simony that she was “one hundred percent sure" when she made

identification of Strickler from the photographs. Tr. 478-

Stoltzfus was also unable to make 4 positive identification
A Henderson from the photo spread. At trial, Stoltzfus

stified that she was certain of her identifications of both

Me ickler and Henderson but was unable to identify the white

man with them. However, her initial interviews stated the

<
posite.

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 4 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

also gave a detailed description of the physical features and

‘Clothing of the white woman accompanying then. Ex. 7.

i 14. 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 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, 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 jog my memory.
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

ral Oe Rae

y letter continues:

5, but that her “memory” of these events was based on what he

init; ff. First I
I’m sorry my initial times were 5° far off.
remembered it being dark and remembered driving on past
Leggetts and not going in. 1! placed the time around

9:00 pm Vv :
: r I thought I hadn’t gone into
. Katie remembered

the small Centerpoint purchase and I knew that if that
happened January 5 I could trace our path from there.

daughter told her. Moreover, the letter indicates that Stoltz

gave Det. Claytor information that never appeared in any of h

notes, i.e., she had not remembered being at the mall on the
night Whitlock was allegedly abducted. This information woul

have been very effective in destroying her credibility with | E chasis added.) Once again Stoltzfus admits that she had not

| remembered being in the mall that night.

jury. 3 Her “memory” is based

15. Claytor’s handwritten notes of January 19, 1990 Stoltzfus’‘s letters and notes

sn what her daughter has told her.

contain no mention o ° fus’s enc i , , ,
f Stoltz Ss encounter with Strickler and pet. Claytor provided devastating impeachment material,

Henderson in the music store. Ex. 1. Th
© Cypes Tepert states Zasting doubt on all of her testimony.

only that Stoltzfus may have seen the same blond haired man and 16. There are additional inconsistencies. In

white women inside the mall. The woman bumped into Stoltzfus, Whitlock’s car was described

sStoltzfus’s first police interviews,

:
|
‘
|
'

and the man had been yelling at the woman and appeared agitated In notes labled

A “dark blue" with West Virginia tags.

Ex. 2. Again Stoltzfus’s subsequent letters present a detail 1990, and illustrated with

®Observations" dated January 19,

description of her encounter in a music store with Strickler a ‘new’ sports car

jiagrams, the car is described as a “dark blue,

Henderson. Stoltzfus later gave this testimony at trial. In
West Va. tags." Ex. 3.

January 22 letter, Stoltzfus states she is uncertain that the 1990, a police report indicates
,

17. On January 24,

she saw int 7
he mall is even the same man that she later saw hat Stoltzfus was taken to the police impound lot to view the

approach Whitlock’s car. Ex. 4. Stoltzfus was also very she was able to recall the

r. Ex. 2. After viewing the car,

uncertain of what she "saw" in the parking lot, in direct a number, NKA-243, and other details about the car.

contrast to her trial testimony: to Det. Claytor

18. The letter dated January 26, 1990,
d 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 pulli
off. I have impressions of intense anger, of his goi
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?

provides further impeachment material. Ex. 7. Stoltzfus wrote:

: Nes
| 4 memories. t the time that I was

I know if I believed a

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 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

(Emphasis added.)

6

OG1G28

OG

and talk to you, v W v

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

(Emphasis added.) toltzfus did not remember the events that ¢
sad RICHMOND DIVISION
testified about. Her story was apparently developed with the

assistance of the police, after viewing the evid=nce and yMMY DAVID STRICKLER

photographs, and after hearing discussions of the crime on Petitioner,

campus. Vv. Case No. 3:95-CV-924

~~

19. Additional impeachment material is contained in _D. NETHERLAND, Warden

ee ee ee ee ee ee ee ee ee

Exhibits 1-7 which is not set forth here. Respondent.

20. In sum, the suppressed documents satisfy the ;

CITY OF WAYNESBORO, VIRGINIA
requirements of Brady and Kyles for there is a “reasonable

probability” that disclosure would lead to a different result as j AFFIDAVIT OF HUMES J. FRANKLIN. JR.

shown by whether suppression of the evidence “undermines i Wumes J. Franklin, Jr., being duly sworn, states as
confidence in the outcome of the trial." Kyles, at 1566, quoti follows:

Bagley, 473 U.S. at 678. Stoltzfus was a critical alleged 1. I am an attorney, admitted to the Bar of Virginia,

“eyewitness” on both the abduction and robbery predicates. The and my office is located at 129 N. Wayne Avenue, Waynesboro, Va.

materials should have been disclosed to Strickler’s trial 2. In 1990, I was assigned to represent Ronald Lee

counsel. Henderson in his capital murder trial. Henderson had been

Further, affiant sayeth not. charged along with Tommy Strickler in the abduction, robbery and

William E. Bobbitt, Jr.

surder of Leeann Whitlock. The indictment was brought in Augusta

County and subsequently transferred on defendant’s motion to the

Circuit Court for the City of Winchester.

3. The jury trial was conducted in March, 1991, before

— vo

Judge Bumgardner. Henderson was convicted of first degree murder

Sworn to before me this

[7 tne day of August, 1997:

and sentenced to life imprisonment. The prosecutor was A. Lee
Ervin, Commonwealth’s Attorney for Augusta County. Ervin had
prosecuted Strickler in 1990, and Strickler was convicted of

Capital murder and sentenced to death.

061086

a

—,

I have reviewed the attached Exhibits 1-8
th Ann

4.
On February 7, 1991, I filed a Motion For Discove

*? mree :

allegedly made by an
Y person wh
ich show or tend to show any and notes from Ann Stoltzfus to Det.

information within the knowledge of possession of the

Commonwealth which tends
to be e iti |
xculpatory, mitigating, or 9. I have no recollection of seeing any of this

Commonwealth’s files during my pretrial review of

s
otherwise favorable to the Gefendant," id. at q B.1 as well as terial in the
ale. -”

t any time during trial. I have reviewed my own

could find
files from the case, and I @ not Save

"Any and
y all other records and/or information which arguably the files or &

otherwise det ,
racting from the probative force of the paterial contained in Exhibits 1-8.

I have reviewed my cross-examination of Anne

Commonwealth’s evidence o i
r wh
ich arguably could lead to such 10.

stoltzfus during Henderson’s trial. Exhibit 9. My cross-

records or information,” i414, at q 10
ot rely on any of the materials in

examination questions do n
must presume

S. :
The Commonwealth filed an Objection To Defendant’s
I someimte that none of these materials were in

Motion
For Discovery And Inspection on March 5, 1991. In these exhibits

the Commonwealth’s files when I examined then.
To the best of my knowledge
11. /I first learned these materia

response
P to B.1, the Commonwealth agreed "to provide any
ls existed when they

exculpatory evidence that it may have knowledge of." As to 10
7
were shown to me sometime in 1997.

the
Commonwealth agreed to provide "any exculpatory evidence that

is within the knowled
ge 6f the Cummeuvenieh’s Ateernay.* 12. The material in Exhibits 1-8 provides powerful

impeachment material and should have been disclosed to me

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v.

If I had known these materials

6.
On March 20, 1991, the trial court entered an Order

direct
ing in relevant part that the Commonwealth’s Attorney
Whitley, 115 S. Ct. 1555 (1995).

"
provide all exculpatory evidence that he has knowledge of to
I would have used them on cross-examination.

(Henderson) .*
existed,
7. Pursuant to tha
consent, I ee ee rer 13. Anne Stoltzfus testified that she was an
nt, reviewed the mate
Fisls in the files ef the eyewitness to the abduction of Whitlock by Strickler and

Henderson. Her testimony provided evidence against Strickler and

Commonw
ealth’s Attorney for Augusta County prior to Henderson’s
Henderson on both the abduction and robbery predicates to the

trial.
l I had access to these files on more than one occasion

Thus, she wat a4 critical witness.

and I was permitted to mak
e
copies of any materials. capital murder charge.

| OG1088

—

34...

14. /The notes, letters and interviews of Anne

I believe

Stoltzfus contradicted or impeached her trial testimony in many

significant respects. The ~snt@isciosed materials also provided @
basis to bar her testimony altogether since Stoltzfus stated tha:
her “memories” were based on conversations with her daughter.
Had I known of these materials, I would have made a motion in
limine to prohibit Stoltzfus’ testimony.

15. The suppressed documents satisfy the requirements
of Brady and Kyles for there is a "reasonable probability” that
disclosure would lead to a different result as shown by whether
auseoaenken” of the evidence “undermines confidence in the outcome
of the trial." Kyles, at 1566, quoting Bagley, 473 U.S. at 678.¢
Stoltzfus was a critical alleged "eyewitness" on both the
abduction and robbery predicates. The materials shopld have been

disclosed to me as Henderson’s trial course’.

Further, affiant sayeth not.

A. j
a 9 7
Humes 7. Frankiin, Jr.

Sworn to before me this

5+) tne Gay of September, 1997:

ElioP Kumard

My commission expires on: 9/30/99

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0290%3A03. Public record. Not legal advice.