Appendix — Weeks v. Angelone

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- 9-57.46

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

LONNIE WEEKS, JR.,

Petitioner,

we oy

RONALD ANGELONE, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

Immineit Execution Scheduled

September 1, 1999

Sterling H. Weaver, Sr., Esq. Gien A. Huff, Esq.

P.O. Box 543 Timothy M. Richardson, Esq.

Portsmouth, VA 23705 Counsel of Record

(757) 393-0237 Huff, Poole & Mahoney, P.C.

4705 Columbus Street

Virginia Beach, VA 23462

(757) 499-1841

RECEIVED.

Counsel for Petitioner | HAND DELIVEREO Counsel for Petitioner

WEEKS v. ANGELONE — 249

Cite as 176 F.3d 249 (4th Cir. 1999)

As this Court held in response to 3

similar challenge in United States v. Port-

er, 909 F.2d 789, 794-95 (4th Cir.1990),

“(tJhis challenge does not state an appeal-

able question under 18 US.C. § 3742.”

Vv.

Accordingly, the sentence imposed by

the district court is ;

AFFIRMED.

o | comer

Lonnie WEEKS, Jr., Petitioner-

Appellant,

Ronald J. ANGELONE, Director of the

Virginia Department of Corrections,

Respondent-Appellee.

No. 98-21.

United States Court of Appeals,

Fourth Circuit.

Argued March 1, 1999.

Decided May 10, 1999.

After his conviction for capital murder

of state trooper was affirmed on appeal,

248 Va 460, 450 S.E.2d 379, petitioner

sought habeas corpus relief. The United

States District Court for the Eastern Dis-

trict of Virginia, Rebecca B. Smith, J., 4

F Supp.2d 497, dismissed petition. On peti-

tioner’s application for certificate of ap-

pealability, the Court of Appeals, Williams,

Circuit Judge, held that: (1) jury instruc-

tions at sentencing did not improperly pre-

“adequately satisfies the Guidelines’ goals re-

lating to deterrence, retribution, and incapac-

itation.” ists, $73 F.Supp. at $84. The

court did not indicate a belief that it was

foreclosed from considering Pitts’s post-con-

cation of new rule in violation of Teague;

(3) admission of petitioner's confession

that was made after petitioner initially cut

off questioning was not contrary to or un-

reasonable application of Supreme Court

1. Habeas Corpus €=452

For a claim that was adjudicated on

the merits in state court proceedings,

Court of Appeals will not issue a writ of

habeas corpus under the Antiterrorism

and Effective Death Penalty Act (AEDPA)

unless (1) the state court decision is in

square conflict with Supreme Court prece-

dent that is controlling as to law and fact

or (2) if no such controlling decision exists,

the state court’s resolution of a question of

pure law rests upon an objectively unrea-

sonable derivation of legal principles from

the relevant Supreme Court precedents, or

if its decision rests upon an objectively

unreasonable application of established

principles to new facts. 28 USCA

§ 2254(d).

2. Habeas Corpus 842

When a habeas petitioner has proper-

ly presented a claim to the state court but

the state court has not adjudicated the

claim on the merits, Court of Appeals re-

viewing denial of habeas relief reviews

viction In fact, the court did

: cooperation. ee er By -ather

found that they “can never justify or mitigate

his actions. Even to assert such excuses is a

further affront.” Jd. at 584-85.

APP 1

176 FEDERAL REPORTER, 3d SERIES

. ;

ot “BB* £

‘i | , i

SEEEEDS .

F if

EES

: i

adjudicated a claim on the merits but

given no indication of how it reached its

decision, a federal habeas court must stil]

5. Homicide 358(1) Wages

_ _ Jury instructions at sentencing in cap-

_ clude jury from considering relevant miti-

gating evidence, despite court's failure to

explicitly state that jury.was not required

to sentence defendant to death upon find-

ing of at least one aggravating factor, upon

jury's request for clarification of instrue-

tions.

6. Criminal Law 1213.8(8)

The Eighth Amendment requires that

a capital jury be able to consider and give

effect to all relevant mitigating evidence

offered by the defendant. U.S.C_A Const.

Amend. 8. . Pie

7: Criminal Law ©1208.1(5)

Homicide ©357(1)

_ Evidence about the defendant's back-

ground and character is necessary for the

Sentencer to make an individualized as-

but must be viewed in the context of the

overall charge.

n the ground that the petitioner

is in custody in violation of the Constitu-

tion or laws or treaties of the United

States; therefore, when a petitioner's claim

rests solely upon an interpretation of state

case law and statutes, it is not cognizable

on federal habeas review. : 28 US.CA

§ 2254(a). aot

11. Habeas Corpus €319.1, 380.1

WEEKS v. ANGELONE 251

Cite a2 176 F.3d 249 (4th Cir. 1999)

review claim de novo because it required

court to apply a legal standard to a given

set of facts. 28 U.S.C.A § 2254(d). 7

13. Habeas Corpus 380.1

'.The fact that the state court did not

address a petitioner's federal constitutional

claim does not render his claim unreview-

able on federal habeas if he demonstrates

that the state court had a fair opportunity

to address the claim.

14. Criminal Law €1077.1(1) -

Finding that state defendant was en-

titled to expert assistance at trial in fields

of pathology and ballistics would require

announcement of new rule, for purpose of

Teague’s antiretroactivity principles, be-

cause, at time defendant’s conviction be-

came final, Supreme Court precedent re-

quired only that indigent defendant be

appointed psychiatric experts when defen-

dant's sanity was at issue. s::

15. Courts © 100(1)

Habeas Corpus 461

Under Teague, new rules will not be

applied or announced in cases on collateral

review unless they fall into one of two

exceptions, which are new rules that place

certain kinds of primary, private individual

conduct beyond the power of the criminal

law-making authority to proscribe and wa-

tershed rules of criminal procedure that

significantly improve the accuracy of the

factfinding procedure and implicate the

fundamental fairness of the trial.

16. Habeas Corpus 461

In general, a case announces a new

rule, for purpose of Teague antiretroactivi-

ty principles, if the result was not dictated

by precedent existing at the time the de-

fendant’s conviction became final, and a

petitioner cannot receive federal habeas

relief unless reasonable jurists hearing pe-

titioner’s claim at the time his conviction

became final would have felt compelled by

existing precedent to rule in his favor.

17. Habeas Corpus 461

In determining whether petitioner

seeks a new rule on collateral review, for

purpose of Teague’s antiretroactivity prin-

ciples, court first should determine date on

which petitioner’s conviction. became final,

and then consider whether state court con-

sidering petitioner’s claim at that time

would have felt compelled by existing pre-

cedent to conclude that rule he sought was

required by the Constitution; if not, then

rule is new, and, if rule is determined to be

new, final step in Teague analysis requires

court to determine whether rule nonethe-

less falls within one of Teague’s narrow

18. Criminal Law © 1077.1(1) |

Government, upon request, must pro-

vide indigent defendants with the basic

tools of an adequate defense or appeal,

when those tools are available for a price

to other prisoners; although the govern-

ment need not purchase for the indigent

defendant all the assistance that a wealthi-

er defendant might buy, fundamental fair-

ness requires that indigent defendants

have an adequate opportunity to present

their claims fairly within the adversary

system.

19. Courts 100(1) .

Retroactive application of Virginia Su-

preme Court's Husske decision, holding

that indigent defendant may be entitled to

appointment of nonpsychiatric experts, to

determine that defendant was entitled to

expert assistance in fields of pathology and

ballistics would violate Teague’s antire-

troactivity principles, because rule did not

amount to watershed rule of criminal pro-

cedure that would significantly improve ac-

curacy of factfinding procedure and impli-

cate fundamental fairness oftrial . —

20. Habeas Corpus ©=490(3)

’ Finding that second interrogation of

defendant, after defendant had initially cut

off questioning during first interrogation,

scrupulously honored defendant’s right to

cut off questioning was neither contrary to

nor unreasonable application of Supreme

APP 3

decision, and thus did not

if bs

HEL

claim that a state court has found to be

116 FEDERAL REPORTER, 3¢ SERIES

clearly and expressly defaulted under an

independent and adequate state procedural

rule unless the prisoner can demonstrate

cause for the default and prejudice result-

ing therefrom or demonstrate that ‘a fail-

ure to consider the claims will result in a

fundamental miscarriage of justice.

violation has probably resulted in the con-

viction of someone who is actually inno-

cent, and, to show “actual innocence” of

the death penalty in a capital case, a peti-

tioner must show by clear and convincing

evidence that but for the constitutional

error, no reasonable juror would have

found the petitioner eligible for the death

penalty. '

larly and consistently applied by that

state's courts, even if it was not applied in

a few cases. VaSup.Ct Rules, Rule 5:25.

28. Habeas Corpus €°374.1, 403

Dismissal of federal habeas petition-

er’s claims by state supreme court on di-

rect appeal, based on his failure to brief or

argue alleged errors, provided adequate

and independent state ground to bar fed-

APP 4

WEEKS vy. ANGELONE 253

Cite as 176 F.3d 249 (4th Clr, 1999)

ite petitioner’s claim that hausted claim if the claim was presented to

hice ” oer ‘

Wied

it i

;

e Habeas Corpus 406 . ‘ i" @ far

Alleged ineffective assistance of coun-

sel for petitioner on his state habeas peti-

defendant's default of. claims 4@F guise of due process clause. US.C.A

not to brief before that ConstAmends. 6, 14.

court, due to court’s page limits. VaSup. Huff, Poole & Mahoney, P.C., Virginis

CtRules, Rule 5:26(a). , ¢

32. Habeas Corpus 363,378 === Office oof the Attorney General, Richmond,

To satisfy the exhaustion requirement, Virginia, for Appellee. ON BRIEF: Glen

a habeas petitioner must fairly present his A Huff, Poole & Mahoney, P.C.,

Huff, :

claim to the state's highest court, although Virginia: Beach, Virginia; Sterling H.

a claim that has not been presented to the Weaver, Sr., Portsmouth, Virginia,

highest state court nevertheless may be pellant Mark L. Earley, Attorney Gener-

treated as exhausted if it is clear that the al of Virginia, Office of the Attorney Gen-

claim would be procedurally defaulted un- eral, Richmond, Virginia, for Appellee.

der state law if the petitioner attempted to :

APP 5

of Virginia jury convicted Lonnie Weeks,

Jr., of the capital murder of Virginia State

Trooper Jose Cavazos. . Following the

jury's determination that Weeks’s conduct

satisfied the “vileness” aggravating factor,

the trial court sentenced Weeks to death.

After exhausting al] available state reme-

dies, Weeks petitioned the United States

District Court for the Eastern District of

Virginia for habeas corpus relief. See 28

US.CA § 2254 (West 1994 & Supp.1998).

The district court dismissed his petition.

claims of error. Weeks argues, inter alia,

fil

and stole the

Later that month, [Weeks]

drove the vehicle to Washington, D.C.,

intending to sell ii or trade it for drugs.

(Weeks) carried in the vehicle a Glock

Model 17, nine millimeter, semi-auto

matic pistol loaded with hollow-point

bullets. According to the testimony, the

bullets were designed for police use, not

target practice or hunting: this type of

bullet is referred to as a “man stopper.”

During the late evening of February

23, (Weeks) was riding as a passenger in

the vehicle being driven by his uncle,

21-year-old Lewis J. Dukes, Jr. a resi-

dent of the District of Columbia The

pair was traveling en route from Wash-

ed to chase the vehicle occupied by

(Weeks). After traveling a brief dis-

tance, and passing other vehicles by

driving on the right shoulder of the

highway, Dukes brought the car to a

stop on the Dale City exit ramp, in a

dark, remote area

The trooper pulled his patrol car to a

APP 6

:. WEEKS v. ANI ti 255

Che as 176 F.3d 249 (4th Cir. 1999) ;

ed and was standing toward the left rear and more suspicious” of[Weeks). Even

of the Volkswagen when the trooper . though (Weeks) “was free to leave” at

asked (Weeks] to step out of the vehicle, that point, Rowland advised [Weeks] of

(Weeks) complied with the officer's ! rights to Mi-

request and alighted on the right side of , Tanda v. Arizona, 384 U.S. 436, 86 S.Ct

the vehicle as the trooper-was near the § 1602, 16 L.Ed 2d 694 (1966), as a precau-

left side. As (Weeks) left the vehicle he _.. tion at 7:40 am. [Weeks] then exercised

was carrying the fully loaded pistol. He ~~ his right to remain silent and wrote, “Do

then fired at least six bullets at the . not want to discuss case any further,” on

officer, two of which entered his body the “Advice of Rights” form that he

bry

fil

;

him that he was not under arrest” and

asked [Weeks] “if he would like to talk

... about what he had seen up on Inter-

state 95.” [Rowland], who ... testified

rilfit

| rage

HEH

[Weeks] does not contest either of these

ing had made a positive identification of

APP 7

256 176 FEDERAL REPORTER, 3d SERIES

(Weeks) responded, “Yes, I was pack-

ing.” The officer knew that “packing”

“meant “carrying a firearm.” - vas

[Weeks] ther. confessed to the troop-

er’s murder. (Weeks) stated that when

the trooper asked him to get out of the

Volkswagen, he picked up the pistol

about throwing it away.”

saw

(Weeks)

shot the victim “several times rapidly.”

(Weeks) stated that he drove, with

Dukes as @ passenger, to the service

station, placing the pistol under the

front floor mat of the Volkswagen. This

interview lasted about one hour during

which [Weeks] readily answered ques-

tions and did not invoke his rir’at to

Weeks v. Commonwealth, 248 Va 460, 450

murder, see Va.Code.Ann § 19.2-264.4(C)

(Michie 1995), the jury recommended that

Weeks be sentenced to death. After con-

ducting a post-trial hearing pursuant to

Va.Code. Ann. § 19.2-264.5 (Michie 1995),

peal, the Supreme Court of Virginia

held Weeks’s conviction and death sen-

tence. See Weeks, 248 Va. 460, 450 S.E.2d

379. The Supreme Court of the United

States denied Weeks’s petition for a writ

of certiorari ' See Weeks v. Virginia, 516

US. 829, 116 S.Ct 100,-133 L.Bd2d. 65

(19965). e "Ae te a%

Weeks requested that the Circuit Court

of Prince William County appoint counsel

to assist him in preparing a state habeas

GERTEFEAPE

segetal

fell

tee

On January 11, 1996, the Commonwealth

filed a motion to dismiss Weeks’s petition

as jurisdictionally barred due to untimeli-

ness under Va Code § 8.01-654.1 and

Rule 5:7A(a) of the Rules of the Supreme

Court of Virginia. In its motion, the Com-

not timely filed because the Supreme

Court of Virginia does not accept pleadings

sent in the mail on the last day for filing

unless they are sent by certified or regis-

tered mail. On tha: same day, the Com-

monwealth also filed a motion to dismiss

the petition on substantive grounds. On

APP 8

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WEEKS v. ANGELONE

Cite a 176 F.3d 249 (4th Cir. 1999)

response to the jury's question about its

punishment of the defendant at death or

if you believe from all the evidence that

the death penalty is not justified, then

you shall fix the punishment of the de-

fendant at life imprisonment or impris-

onment for live [sic] and a fine of a

specific amount, but not ‘more than

$100,000.50.

(J.A. at 264 (emphases added).) The trial

court overruled Weeks’s objection and re-

quest that the jury be instructed that it

could impose a life sentence upon finding

one.or both factors based

upon its belief that the jurors “just have to

be drawn to that paragraph to find their

answer.” (J.A at 1344.) Following sever-

al more hours of deliberation, the jury

sentenced Weeks to death.

(3] The Supreme Court of Virginia re-

jected Weeks’s claim, contained in assign-

ment of error no. 44, that the trial court’s

actions prevented the jury from consider-

ing relevant mitigating evidence on the

ground that Weeks “effectively presents

no argument in support of” his claim

Weeks v. Commonwealth, 248 Va. 460, 450

S.E.2d 379, 383 (1994). The Common-

wealth argues that this dismissal is proce-

dural and that Weeks has procedurally

defaulted any objection to the trial court's

4. The district court also concluded that the

Supreme Court of Virginia dismissed this

evidence, jury instructions, and inquiries

by the jury during its deliberations. We

have considered all the arguments in sup-

port of these issues and conclude that none

has any merit” Id at 390 (emphasis

added). _Because Weeks’s jury made two

inquiries and Weeks’s: brief to the Su-

preme Court of Virginia made two -

ments of error (nos. 43 and 44) regarding

the court's response to jury instructions,

the Supreme Court of Virginia’s use of the

Supreme Court of Virginia therefore adju-

dicated assigned error no. 44 on the mer-

4 wr hg

must still apply the AEDPA standards of

review. See id A state court’s perfuncto-

ry decision is reasonable if it “‘is at least

minimally consistent with the facts and

circumstances of the case.’” Jd at 157

(quoting Hennon v. Cooper, 109 F.3d 330,

335 (7th Cir), cert denied, — U.S. —,

U8 S.Ct 72, 139 L.Ed2d 32 (1997).

claim on the merits. See Weeks v. Angelone, 4

F.Supp.2d 497, $36 (E_D.Va.1998).

APP 11

260 116 FEDERAL REPORTER, 3d SERIES

Therefore, the writ will not issue unless we

determine that the Supreme Court of Vir-

ginia’s disposition of this claim was either

contrary to federal law as determined by

the Supreme Court or an application or

interpretation of Supreme Court precedent

“that reasonable jurists would all agree,”

Green v. French, 143 F.3d 865, 870 (4th

Cir.1998), was not “ ‘minimally consistent

with the facts and circumstances of the

case,” Wright, 151 F.8d at 157 (quoting

Honan, 109 736 OG. F

- (5-8) Wis Sieh dinenteans seinen

that a capital jury be able to consider and

give effect to all relevant mitigating evi-

dence offered by the petitioner. See Ed-

dings v. Oklahoma, 455 U.S. 104, 112-14,

102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett

v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954,

57 L.Ed2d 973 (1978). Evidence about

the petitioner’s background and character

is necessary for the sentencer “to make an

" individualized assessment of the appropri-

ateness of the death penalty.” Penry wv.

Lynaugh, 492 US. 302, 319, 109 S.Ct

2934, 106 L.Ed2d 256 (1989). In deter-

mining the validity of a challenged instruc-

tion, the instruction “may not be judged in

artificial isolation, but must be viewed in

the context of the overall charge.” Cupp

v. Naughten, 414 U.S. 141, 147, 94 S.Ct

396, 38 L.Ed.2d 368 (1973). In Boyde, 494

U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316,

the Supreme Court fleshed out these prin-

ciples, holding that the proper inquiry in

cases where a capital sentencing instruc-

tion allegedly prevents the consideration of

mitigating evidence is “whether there is a

reasonable likelihood that the jury has ap-

plied the challenged instruction in a way

that prevents the consideration of constitu-

tionally relevant evidence.” Jd at 380.

Applying this rule to the petitioner’s case

in Boyde, the Supreme Court concluded

that there was not a reasonable likelihood

that the challenged instruction prevented

the consideration of mitigating evidence, in

light of the fact that the instruction told

gravity of thé crime” and that the jury was

presented with four days of evidence at the

penalty phase relating to Boyde’s back-

ground ‘and charatter.” “Id. at 381; ‘see"id:

RSIS, 8 PH aes ies ws HER

they “may fix” the penalty at death, but

directed that if they believed that all the

evidence justified a lesser sentence then

they “shall” impose a life sentence. The

jury was thus allowed to impose a life

eoeennt nee RE and Re aque

Id. at 762. The Supreme Court concluded

that “[e]ven Were we to entertain some

doubt as to the clarity of the instructions,”

the two days of testimony related to miti-

gating evidence and the extensive argu-

ments of the defense and the prosecution

on the effect such evidence should be given

in the sentencing determination demon-

APP 12

"Tt WEEKS y.. ANGELONE ; 261

Cite as 176 F.3d 249 (4th Cir. pet

rors would believe the court’s instructions

‘In fact, the verdict form the jury returned

specifically noted that in fixing Weeks’s

punishment at death, the jury “considered

the evidence in mitigation of the offense.”

(JA. at 258, 1345-46.) At the conclusion

of the penalty phase, following the .an-

nouncement of the verdict in open court,

pers hk Yaa ag

confirmed the verdict. ::

Under ‘Gunns’ indbbienicin: Wek tedlone

that no reasonable juror would have un-

derstood -the sentencing instruction to

preclude the consideration of mitigating

5. Even if we were to apply the pre-AEDPA

standard of de novo review, see Howard v

Moore, 131 F.3d 399, 406 (4th Cir.1997) (en

banc), cert. denied, —— U.S. ——~, 119 $.Ct

108. 142 L.Ed 2d 86 (1998), we would con-

clude, for the reasons discussed, that the trial

court's actions did not prevent the jury's con-

rai ,

evidence even upon a finding of an aggra-

ginia’s summary disposition of this claim,

therefore, was neither contrary to federal

law as interpreted by the Supreme Court

of the United States nor an application or

jurists would all agree,” Green, 143 F.3d

at 870, was not “minimally consistent with

~ Aery sy poe tater mad

Ca ee wip

Vv.

Next, Weeki” argues that the ‘trial

: court's ‘denial of his request for appointed i

ballistics and “pathology experts violated

his rights under the Fourteenth Amend-

ment’ As support for his argument,

Weeks cites the Supreme Court of Virgi-

nia’s opinion in Husske v. Commonwealth,

252 Va. 203, 476 S.E.2d 920 (Va.1996), cert

denied, 519 U.S. 1154, 117 S.Ct. 1092, 137

L.Ed.2d 225 (1997), decided one year after

Weeks’s “conviction” became final. In

Husske, the Supreme Court of Virginia

held that in certain instances, indigent de-

fendants must be provided with non-psy-

chiatric experts as part of the “basic tools

of an adequate defense.” Jd at 925.

{9} Prior to the trial, Weeks filed a

motion for expert assistance in the fields of

ly, asked that his motion be treated pursu-

ant to 18 U.S.C.A § 3006A(e) (West Supp.

APP 13

Bie

F ! ;

ui :

sit at

‘

;

‘

are)

ToH

PELEE

lee’s Br. at 16-17.) A federal court may ©

grant habeas relief “only on the ground

that [the petitioner] is in custody in viola-

tion of the Constitution or laws or treaties

of the United States.” :28 USCA

§ 2254(a) (West 1994).. Therefore, when a

petitioner’s claim rests solely upon an in-

terpretation of state case law and statutes,

it is not cognizable on federal habeas re-

view. See Estelle v. McGuire, 502 US. 62,

67-68, 112 S.Ct. 475, 116 L.Ed2d 385

(1991) (“{I}t is not the province of a federal

habeas court to reexamine state-court de-

terminations on state-law questions.”).

Moreover, a federal habeas court cannot

preme Court of Virginia did not discuss a

federal constitutional jague in addressing

Weeks's claim, it is the,petitioner’s argu-

ment to the court rather than the court's

decision that is dispositive.. Weeks’s brief

on direct appeal clearly alleged that the

denial of expert assistance constituted vio-

lations of the Fifth, Sixth, and Fourteenth

Amendments of the Constitution of the

United States. Because Weeks presented

the substance of a federal constitutional

claim for experts to the Supreme Court of

Virginia, we may review this claim in a

federal habeas proceeding. . » OA

B. ns

(12,13] Weeks argues that the Su-

error relating to the request for a scien-

APP 14

...WEEKS y.ANGELONE 263

” Cite as 176 F.3d 249 (4c Cr. 1999)

S.E2d 566, 571 (1993),: rev'd on other

grounds sub nom. Ramdass v. Virgi-

mia, 612 U.S. 1217,-114 S.Ct. 2701, 129

L.Ed2d 830 (1994). In addition, we

specifically have refused to apply the

Seen Seas (> Ge gS mene

prosecutions.

Weeks, 450 S.E-2d at 388, Weels’s claim

rests on the arguable point that when the

Supreme Court of Virginia stated that

“(t}here is no merit to this contention,” the

singular term “this contention” only re-

ferred to Weeks’s application for an ex

onstrates that the state court had a fair

opportunity to address the claim. C/

Adams v. Robertson, 620 U.S. 83, 117 S.Ct.

1028, 1029, 137 L.Ed.2d 203 (1997) (holding

that a federal claim in a state court judg-

ment on which the state court was silent

Court to announce a new rule in violation

of Teague v. Lane, 489 U.S. 288, 109 S.Ct.

1060, 103 L.Ed2d 334 (1989) (plurality

opinion). See Green v. French, 143 F.3d

865, 874 (4th Cir.1998) (holding that antire-

troactivity principles of Teague apply

where limitations of § 2254(d)(1) do not).

“Under Teague, new rules will not be ap-

plied or announced in cases on collateral

review unless they fall into one of two

exceptions.” Penry vu. Lymaugh, 492 U.S.

302, 313, 109 S.Ct. 2934, 106 L.Ed.2d 256

(1989). In general, “a case announces a

new rule if the result was not dictated by

precedent existing at the time the defen-

dant’s conviction became final.” Teague,

489 U.S. at 301. “The principle announced

that significantly improve the accuracy of the

factfinding procedure and implicate the fun-

damental fairness of the trial. See Teague v.

Lane, 489 U.S. 288, 311-12, 109 S.Ct. 1060,

103 LEd.2d 334 (1989) (plurality opinion).

APP 15

264 176 FEDERAL REPORTER, 3d SERIES

0) athe Pen wi.

er “a state court considering [the defen-

_ dant’s) claim at the time his conviction

became final would have felt compelled

by the existing precedent to conclude

that the rule [he] seeks was required by

the Constitution.” If not, then the nile

is new. If the rule is determined to be

new, the final step in the Teague analy-

sis requires the court to determine

whether the rule nonetheless falls within

Ee ee ere

Teague doctrine.

O'Dell v. Netherland, 521 US. 151, 117

S.Ct. 1969, 1973, 138 L.Ed. 2d 351 (1997)

(internal citations omitted). Weeks’s con-

viction became final on October 2, 1995,

the date the Supreme Court of the United

States denied certiorari We therefore

must determine whether as of October 2,

1995, a Virginia state court would have

been compelled by existing precedent to

conclude that a rule establishing a right to

appointment of experts in pathology and

8. Although most of the early Supreme Court

decisions in the area of the treatment of indi-

gents in the crim ial justice system rested on

an equal protection framework, “[dJue pro-

defense or appeal, when those tools are

41 L.Ed2d 341 (1974). in Ake v. Okla-

homa, 470 US. 68, 105 §.Ct - -1087, 84

L.Ed.2d 53 (1985), the Supreme Court held

that as part of the basic tools of an ade-

when he “demonstrates to the trial judge

that his sanity at the time of the offense is

to be a significant factor at trial.” Jd at

holding was limited to the facts at hand.

See id at 83. In fact, the Supreme Court

soon thereafter declined to extend Ake's

holding to the appointment of a criminal

investigator, fingerprint expert, and ballis¢

tics expert and declined to address the

question of “what if any showing would

[entitle] a defendant to (private’ non-psy-

chiatric) assistance” as a matter of fecieral

constitutional law. Caldwell v. Mississip-

cess and equal protection principles converge

in the Court's analysis in these cases.” Bear-

den v. Georgia, 461 U.S. 660, 665, 103 S.C

2064, 76 L.Ed.2d 221 (1983). -

APP 16

:j v.

pi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633,

86 L.Ed.2d 231 (1985) (emphasis, added).

We interpret Ake and Caldwell together

to stand for the proposition that due pro-

cess as of the time Weeks’s conviction

when his sanity is at issue in the trial.

Finding in favor of Weeks ‘on his claim

therefore would require us to announce 3

“new rule” of constitutional law in violation

of Teague. Weeks citcs: Husske, 252 Va

203, 476 S.E.2d 920, as support for his

contention that he is not séeking the an-

nouncement of a new rule, but rather the

application of an old rule. ‘In Husske, the

Supreme Court of Virginia noted the fol-

Our } " ] that most ¢ ts

whether an indigent defendant is enti-

tled to the appointment of 4 non-psychi-

Ake, and, those courts have held that the

Due Process and Equal Protection claus-

es require the appointment of non-psy-

chiatric experts to indigent defendants

depending upon whether the defendants

made a particularized showing of the

need for the assistance of such experts.

Id at 925 (citing aumerous cases from

state and federal courts). The Supreme

Court of Virginia continued, “We are of

the opinion that Ake and Caldwell, when

read together, require that the Common-

wealth of Virginia, upon request, provide

indigent defendants with ‘the basic tools of

an adequate defense,’ and, that in certain

instances, these basic tocls may include

the appointment: of non-psychiatric’ ex-

perts.” Jd (internal citation omitted).

The Supreme Court of Virginia then held

that an indigent defendant may establish

an entitlement to appointment of a non-

the services of an expert wou'd materially

assist him in the preparation of his defense

and that the denial of such services would

result in a fundamentally unfair trial.” Jd

APP

Cite as 176 F.3d 249 (4th Cie, 1999)

; 2

:.. Weeks argues that although the Husske

decision came out one year after his con-

that such experts may be required ir. cer-

tain instances. Weeks points to no con-

trolling precedent between Ake/Caldwell

tention that the Supreme Court of Virginia

would have felt compelled (by existing pre-

cedent at the time that Weeks’s conviction

became final) to conclude that the rule he

pee

HL Hee ¢

HEL 3 E

RERg ESE : :

i AG if :

7 LHUS :

“

non-psychiatric assistance as a matter of

federal : ‘id We

“would clearly be breaking new constitu-

tional ground.” Jd at 66; ‘see Glso Jack-

son uw Yist, "921 F.2d 882, 885-86 (9th

Cir.1990) (declining to address same ques-

tion). We see no reason why the holding

in Gray does not apply to a claim based on

a denial of experts in pathology and ballis-

tics. -Weeks therefore is requesting this

Teague, 489 US. at 311. Weeks contends

that in light of Ake and Caldwell it would

be fundamentally unfair to conclude that

psychiatrists are a basic tool of an ade-

quate defense while non-psychiatric ex-

perts are not. In support of his argument,

Weeks cites numerous cases in which this

Ry.

EEULE:

RES

“J

be:

to serve as an expert witness concerning

the cause of the victim's death. . See id at

1026. Because there is no doubt as to the

“es *

showing of need would require us to apply

a “new rule” in violation of Teague’... 1:

APP 18

__. WEEKS ¥. ANGELONE 267

Cite as 176 F.3d 249 (4th Cir. 1999)

Vv owt ‘Mmonwealth, 248 Va. 460, 450 S.E.2d 379,

[20] Weeks also argues that the trial 385 (1994). Weeks replied that he was

Rowland the second interrogation. dressed an issue left open by Miranda v.

. Specifically, Weeks alleges that Agent Arizona, 384 U.S. 436, 86 S.Ct 1602, 16

Rowland’s second interrogation failed to L.Ed2d 694 (1966)—the circumstances, if

“scrupulously honor” ‘Weeks’s right to cut any, under which resumption of question-

off questioning in violation of Michigan v. ing is permissible after a person in custody

Mosley, 423 US” 96, 96 S.Ct.'321,'46 has indicated that he wishes to remain

L.Ed2d 313 (1975). Furthermore, Weeks silent’ See Mosley, 423 US. at 100-02.

claims that the constitutional error of in- Rejecting an interpretation of Miranda

troducing his statements made at the sec- that would “create a per se proscription of

ond interrogation had a “substantial and indefinite duration upon any further ques-

injurious effect or influence in determining tioning by any police officer on any sub-

the jury's verdict". (Appellant’s Br. at 24— ject, once the person in custody has indi-

= cated a desire to remain silent,” id at 102-

APP 19

268 176 FEDERAL REPORTER, 3¢ SERIES

first interrogation. Insofar as Weeks sug-

gests ‘that the “failure to satisfy certain

factors is dispositive of whether a Mosley

violation has occurred, we disagree. Mos-

ley does not prescribe a bright-line test to

determine whether a suspect's right to cut

off questioning .was “scrupulously -hon-

ored.” Instead, the touchstone is whether

a “review of the leading up

ae aes gare aaie

“right to cut off questioning was fully re-

spected.”> Mosley, 423 US. at 104; -see

also United States v. Schwensow, 151 F.3d

650, 669 (7th Cir.1998); United States v.

Alverado-Saldiver, 62 F.3d 697, 699 (Sth

Cer. eB at Ue,

‘Applying the Mosley factors to Weeks’s

case, we cannot conclude that the

sient In this case, it is undisputed that

Weeks received full Miranda warnings

during his first interrogation by Agent

Rowland and that questioning ceased im-

mediately once Weeks invoked his right to

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APP 22

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APP 21

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4. WEEKS ¥., 4: \GELONE ; 273

Chee ae 176 FBd Bes (4th Cie, 1999)

6:7A(a), (Michie 1998). (J.A at 617-20).

wealth, 251 Va. 324, 468 S.E.2d 98, 105 n. 4

(1996). Weeks does not dispute that the

untimely filing of his state habeas petition

constitutes an independent and adequate

state bar to the consideration of his inef-

fective-assistance-of-trial-counsel claims on

federal habeas, but he now argues that

cause and prejudice exist to excuse his

defaults. Specifically, Weeks alleges that

the defaults resulted from the clear con-

flict of interest under which his court-

appointed state habeas attorney labored:

the attorney had previously represented at

trial another capital defendant, who was

16. Section 8.01-654.1 provides: “No petition

APP

right to assistance of counsel. See Cole-

man, 501 US. at 752. This Court has

recently held that a petitioner has no

stitutional right to assistance of counsel ir

state habeas proceedings, even though

eral review. See Mackall v. Angelone, 131

F.3d 442, 449 (4th Cir.1997) (en bane), cert

denied, — US. ——, 118 S.Ct. 907, 139

L.Ed.2d 922 (1998). «In an ‘attempt to

avoid the binding precedent of Mackall,

Weeks argues that he possesses a liberty

interest in conflict-free habeas representa-

tion that is protected under the due pro-

cess clause of the Fourteenth Amendment

based on his statutory right to counsel

under VaCode Ann. § 19.2-163.7 (Michie

1995)." Weeks further contends that the

ment of this Court on direct appeal.” Va.

Sup.Ct R. §:7A(a) (Michie 1998).

;

)

actions of his conflicted state habeas coun-

sel in failing to observe the jurisdictional

rules in filing his state habeas petition and

in. failing to withdraw after the Virginia

state courts in appointing conflicted coun-

sel, constituted violations of his due pro-

“outragedus,” at the district court level hé

relied on the same set of facts in making

his Sixth Amendmert claim of ineffective

assistance of habeas counsel as his Four-

We thus view his argument as an attempt

to shoehorn’a claim of ineffective’ assis-

tance of counsel into a due process claim.

We agree with the Ninth Circuit’s reason-

ing in Bonin v. Calderon, 77 F.3d 1155

(9th Cir.1996), which denied a due process

claim nearly identical to Weeks’s: .. ~-

(The petitioner] essentially argues that

the Fourteenth Amendment violation is

his ineffective assistance of counsel... .

(W]e now hold that ineffective assistance

of counsel in habeas corpus proceedings

does not present an independent viola-

tion of the Sixth Amendment enforce-

able against the states through the Due

Process Clause .of the Fourteenth

- Amendment. To recognize such a claim

would allow the Fourteenth Amendment

to “swallow the rule” that there is no

constitutional right to effective assis-

tance of counsel in habeas corpus pro-

ceedings. :

Id at 1160; see also Smith v. Angelone,

111 F.3d 1126, 1133 n. 4 (4th Cir.1997)

_(“We have never held that a prisoner may

claim a due process violation based upan

his lawyer’s performance on state habeas

...."), cert denied, 621 US. 1131, 118

S.Ct. 2, 138 L.Ed.2d 1036 (1997). . Under

the persuasive reasoning of Bonin, a peti-

tioner may claim a due process violation

occurring in his state habeas proceeding,

but he may not premise this claim solely

on the alleged ineffective assistance af

er in a state habeas proceeding. See Va.Code

state habeas counsel. -Because Weeks's

due process claim is the same as his claim

of ineffective assistance of habeas counsel

tutional right to counsel on state habeas,

- In re Abdulaziz Salem TAMIMI,

Saudi Arabian Airlines Corporation, '

Garnishee—Appellant,

“-+y, e

Sharon L. Tamimi, Creditor-Appellee.

No, 98-1423, 2

United States Court of Appeals, .°:

Fourth Circuit. fe

Argued Jan. 27, 1999.

Decided May 21, 1999.

«tf

Employee's ex-wife brought garnish-

ment action in state court against employ-

er, the Saudi Arabian Airlines Corporation,

seeking to recover child support arrearag-

es. Employer, as garnishee, removed ac-

Ann. § 19.2-163.7 (Michie 1995).

APP 26

WEEKS v. ANGELONE 497

Cite as 4 F-Supp.24 497 (ED.Va 1998)

2 a

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United States District Court,

Lonnie WEEKS, Jr., Petitioner, Bae he re

¥. April 1, 1998.

Order Denying Motion to Amend

Ronald J. ANGELONE, Director

of the Virginia Department of

Corrections, Respondent.

Action No. 2:96CV829.

Judgment, June 19, 1998.

Defendant petitioned for federa] habeas

relief after his conviction of capital murder of

APP 27

498 4 FEDERAL SUPPLEMENT, 2d SERIES

State trooper was affirmed on appeal, 248 Va

460, 450 S.E.2d 379. The District Court, Re-

becca Beach Smith, J., held that: (1) Virginia

did not meet the “opt-in” requirements for

its proceedings to be accorded special defer-

ence by federal habeas court under the Anti-

terrorism and Effective Death Penalty Act

(AEDPA); (2) section of the AEDPA, limiting

evidentiary hearings in federal habeas pro-

ceedings, did not eliminate “actual innocence

of the death penalty” doctrine as gateway for

petitioner to have his defaulted claims re-

viewed by habeas court; (3) petitioner failed

to establish “cause and prejudice” or “mis-

carriage of justice,” of kind that would per-

mit federal habeas review of his procedurally

defaulted claims; (4) petitioner was not enti-

tled to appointment of forensic and ballistic

experts who assist him in presenting habeas

corpus claim; (5) petitioner had no constitu-

tional right to bill of particulars; and (6) state

trial judge’s penalty phase instructions were

not contrary to, or an unreasonable applica-

tion of, federal law.

Petition denied and diemiseed. ©

Motion to alter or amend denied.

tion and payment of reasonable litigation ex-

penses of competent counsel in state post-

conviction proceedings prevented it from

qualifying as “opt-in” state, whose proceed-

ings would be entitled to greater deference

on federal habeas review under the Antiter-

rorism and Effective Death Penalty Act

(AEDPA). Antiterrorism and Effective

Death Penalty Act of 1996, § 107, 110 Stat.

1214.

State must strictly, rather than just sub-

stantially, comply with eligibility requirement

imposed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), that it provide

mechanism for appointment and compensa-

tion of competent counsel in state post-con-

viction proceedings, in order to qualify as

“opt-in” state whose proceedings will be enti-

4. Habeas Corpus €=377

Section of the Antiterrorism and Effec-

tive Death Penalty Act (AEDPA), limiting

6. Habeas Corpus 4=401

WEEKS v. ANGELONE 499

Cite as 4 F Suppld 497 (E.D.Va. 1998)

reasonable juror would have found petitioner

eligible for death penalty.

8 Habeas Corpus 422

Dismissal for untimeliness of state habe-

as petition was adequate and independent

state bar to federal habeas review of petition-

er’s claims, where newly enacted statute of

limitations pursuant to which state petition

was dismissed clearly and unambiguously re-

quired dismissal unless petition was filed

within 60 days after denial of petition for writ

of certiorari VaCode 1950, § 8.01-654.1.

9. Habeas Corpus €=403

State procedural rule pursuant to which

federal habeas petitioner’s claims were dis-

missed in state court is not sufficient to

preclude federal habeas review on merits,

eee Cute HED wes Le Rly Gee

and regularly applied.

10. Habeas Corpus 422

As general matter, procedural rules de-

rived from unambiguous state statutes and

Supreme Court rules are necessarily “firmly

established.” for purpose of deciding whether

dismissa) ursuant to state rule will consti-

tute an adequate and independent state bar

to federal habeas review.

See publication Words and Phrases

for other judicial constructions and def-

initons.

11. Criminal Law €641.13(7)

Habeas Corpus 406

Habeas petitioner did not have constitu-

tional right to effective assistance of counsel

at state post-conviction proceedings, not even

for purpose of presenting claims that, as

matter of law, could not have been raised on

direct appeal; accordingly, alleged ineffective

assistance of state post-conviction counsel did

not constitute “cause” for petitioner’s proce-

dural default in state court, and did not

permut review of petitioner’s procedurally de-

faulted claims under the “cause and preju-

dice” exception to procedural default rule.

U.S.C.A. Const.Amend. 6.

12. Habeas Corpus 406

Attorney error will constitute “cause”

for habeas petitioner's procedural default

only if, at time of error, petitioner had consti-

tutional right to assistance of counsel.

US.C.A ConstAmend. 6.

the “miscarriage of justice” exception to pro-

cedural default rule, on theory that, but for

counsel's error, no reasonable juror would

have found petitioner eligible for death pen-

alty, where petitioner never explained how

counsel's alleged ineffective assistance affect-

ed jury's finding as to presence of aggrava-

ting factor on which it relied in sentencing

him to death. U.S.C.A Const.Amend. 6.

14. Habeas Corpus 401

To have procedurally defaulted constitu-

tional claim reviewed by federal habeas court

under the “miscarriage of justice” exception

to procedural default rule, petitioners are

required to link their new evidence to the

defaulted claim, by showing that it is the

claimed error which prevented fact finder

from adequately considering evidence at tri-

al.

15. Habeas Corpus 401

“Actual innocence” exception to proce-

dural default rule is grounded on equitable

discretion of habeas courts to see that federal

constitutional errors do not result in incar-

ceration of innocent persons.

16. Habeas Corpus 442, 452

Habeas court does not sit to correct

errors of fact, but to ensure that individuals

are not imprisoned in violation of Constitu-

tion. ;

17. Habeas Corpus 422

Dismissal of federal habeas petitioner’s

claims by Virg’ria Supreme Court on direct

appeal, pursuant to Virginia’s contemporane-

ous objection rule, constituted an adequate

and independent state ground upon which

federal review could be precluded.

18. Habeas Corpus ¢=403

Dismissal of federal habeas petitioner's

claims by Virginia Supreme Court on direct

appeal based on his failure to brief or argue

alleged errors provided adequate and inde-

APP 29

De el

4 FEDERAL SUPPLEMENT, 2d SERIES

ith

itl

21. Habeas Corpus 405.1

never raised in state court were procedurally

barred, and could not be considered on feder-

al habeas review.

23. Federal Civil Procedure 2544

Party seeking summary judgment has

initial responsibility of informing court of

basis for his motion, and of identifying those

portions of record which he believes demon-

strate the absence of genuine issue of materi-

al fact; it is only when movant satisfies this

preliminary burden that opposing party must

come forward and make showing sufficient to

establish existence of element essential to

that party's case, and on which it will bear

burden of proof at trial. Fed.Rules Civ.Proc.

Rule 56, 28 U.S.CA

24. Criminal Law 11581)

§ 848(qX9).

vention and Control Act of 1970, § 408(q)9),

21 US.CA § 848(qX9). -

See publication Words and Phrases ~

for other judicial constructions and def-

initions re

26. Costs €=302.2(2), 302.4

Federal habeas petitioner was not enti-

tled to appointment of forensic pathologist

and ballistics expert to assist him in arguing

that state trial judge had improperly denied

him the services of forensic and ballistics

expert, where state trial judge’s decision was

not contrary to any clearly established feder-

al law and would not, in any event, have

provided basis for federal habeas relief.

Comprehensive Drug Abuse Prevention and

Control Act of 1970, § 408(qX9), 21 U.S.CA

§ 848(q)X(9).

27. Habeas Corpus 461 ;

To obtain federal habeas relief on theory

and injurious effect or influence in determin-

ing jury's verdict’ 28 US.CA § 2254(d).

28. Habeas Corpus S461 i

State trial judge’s denial of indigent cap-

APP 30

WEEKS +. ANGELONE 501

Cie as 4 F.Suppltd 497 (ED.Va 1998)

and did not provide basis for federal habexs

ballistics expert would amount to a “new

US.CA § 2254(d).

See publication Words and Phrases

for other judicial constructions and def-

initions.

30. Habeas Corpus 452

Federal statute precluding a grant of

habeas relief upon any claim adjudicated on

the merits in state court, unless state court’s

decision “was contrary to, or involved in un-

reasonable application of, clearly established

federal law,” abrogated the de novo standard

of review previously applicable in federal ha-

beas court to claims of legal error, by chang-

ing federal court’s focus from petitioner’s

freestanding legal claims themselves to the

23 US.CA § 2254(d).

31. Constitutional Law 55

Habeas Corpus 205

Federal statute precluding a grant of

habeas relief with respect tc any claim previ-

ously adjudicated on merits in state court,

federal judiciary to say what the law was;

while statute increased the respect due state

decisions, federal habeas courts stil] had to

independently determine whether state court

U.S.CA Const Art 3,§ 2,cl 1; BUS.CA

§ 2254(d).

32. Habeas Corpus 452

In determining, as required under re-

view provisions of the Antiterrorism and Ef-

fective Death Penalty Act (AEDPA), whether

state court's previous ruling on claim consti-

~ tutes an unreasonable application of federal

law, federal habeas courts may not rely on

their own jurisprudence, but must compare

state ‘rial judge’s decision to clearly estab-

lished federal law as determined by the Unit-

ed States Supreme Court; petitioner must be

able to point to authoritative decision of the

Supreme Court in order to secure writ 28

US.CA § 2254(d\1).

33. Habeas Corpus 452

Even if habeas petitioner shows that

state court incorrectly found a claim to be

meritless, in that state court's decision was

contrary to clearly established federal law,

petitioner must still demonstrate, as prereq-

uisite to federal habeas relief, that this prov-

en trial error was not harmless, in that it had

substantial and injurious effect or influence

in determining jury's verdict. 28 U.S.CA

§ 2254(d).

34. Habeas Corpus 461

Ex parte hearing to which federal defen-

dant is entitled on application for expert

assistance is mandated as a matter of federal

basis for federal habeas relief, as not con-

trary to, or an unreasonable application of,

federal constitutional law. 28 USCA

§ 2254(d).

35. Constitutional Law 265

Habeas Corpus 474

Indictment and Information 121.1(2)

APP 31

a ee

502 4 FEDERAL SUPPLEMENT, 24 SERIES

39. Jury © 131(6)

Capital defendant accused of interracia)

crime is entitled to have prospective jurors

informed of race of victim and questionec on

issue of racial bias. =

judge retains discretion as to form and num-

tions as trial judge allowed were to

identify those venirepersons who would auto-

matically vote for death penalty. 2

USCA § 254(@.

WEEKS +. ANGELONE 503

Cie as 4 F Supp.2d 497 (E.D.Va 1996)

dant to life in prison even if they found one

or both of the aggravators, and court's deci-

sion to instead give a pattern jury instruction

that permitted jury to “fix” defendant's pen-

alty at death if aggravating factor was found,

Ss -

att

to federal habeas relief 28 USCA

mght to bill of particulars upon request, state

trial judge’s violation of that right, in failing

to order bil] of particulars, was only a viola-

tion of state law, and did not rise to level of

266.2.

Glen A Huff, Timothy M. Richardson,

Huff, Poole & Mahoney, PC. Virginia

Beach, VA, Sterling H. Weaver, Sr., Ports-

mouth, VA, Michele Jill Brace, Robert Ed-

ward Lee, Jr., Mark E. Olive, Richmond, VA,

for Petitioner.

Robert H. Anderson, III, Assistant Attor-

ney General, Richmond, VA, for Respondent.

OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District

Judge.

This matter was initiated on February 7

1997, by petition for a writ of Mabeas corpus

under 28 U.S.C. § 2254 Petitioner was con-

vieted for the capital murder of Virginia

State Trooper Jose Cavazos, and was sen-

tenced to death on January 14, 1994.' The

petition alleges violations of federal rights

pertaining to petitioner's conviction and sen-

tencing in the Circuit Court of Prince Wil-

liam County, Virginia Specifically, Weeks

attacks the validity of his conviction and sen-

tence on thirty-four (34) separate grounds.

The matter was referred to a United

States Magistrate Judge pursuant to the pro-

visions of 28 U.S.C. § 636(b\(1\B) and (C),

Rule 72(>) of the Federal Rules of Civil

Procedure, and Rule 29 of the Rules of the

United States District Court for the Eastern

District of Virginia for report and recommen-

dation. The Magistrate Judge’s Report and

Recommendation (R & R) was filed on July

30, 1997, recommending that the petition be

1. The Magistrate Judge s Report and Recommen- facts, which this court adopts.

dauon (R & R) contains a detailed statement of

APP 34

itit

iui

Hit

Weeks relies most heavily on Claims I, V, X,

XVIII, 20 XXXVI, XXVIII, XXVIII, and

or in part, the recommendation of the magis-

trate, or recommit the matter to him with

instructions. 28 U.S.C. § 636(b)(1).

In addition, there is an outstanding objec-

tion to the Magistrate Judge's January 23,

1997, Opinion and Order denying Weeks’ re-

quest for expert assistance. This court will

also review that decision and the correspond-

ing objection. See infra part IILA

federal cou.ts to give even greater deference

sented in these petitions. See § 107(a).

Te oe ae

cruel

Sgast§ :

4. Such mechanism must provide for the

entry of a court order either appointing coun-

sel to each indigent capital defendant, or

explaining that such an appointment was not

made on the basis that a defendant was not

indigent or rejected the offer of counsel with

al:

AHH

ait Hi:

AH i

bila

ee Tit!

seeking

defaulted claims. Section 2254(e) provides: ton of easter 6 previously

: (1) (In a habeas corpus proceeding) 4 de ised . constitutional claim is clearly a sepa-

B. Actual Innocence Doctrine him eligible for the death penalty under [the termination of a factual issue made by ® 1.55 issue from whether he has previously

(3) The Magiwete Juige emaied Of US om cer in ae nn | State court shall be presumed to be cor introduced certain evidence

ae Pe Ba ae. 505 US. 383, 347, 112 S.Ct 2514, 120 rect. The applicant shall have the SN A kA

a Geen, determine procedur- 1 Ed2d 269 (1992). It is only after meeting of rebutting the presumption of correct: 5 456/019) direct Les or changes the

pn Mesiee Osseo nome this very difficult burden that a petitione: ness by clear and convincing evidence. applicable standard for deciding when a de-

cuvtege oC fatten? or “ated treme? ee ee Cte Gn of (2) If the applicant has failed to develop 04 claim may be reviewed. Instead, the

oom, 86828. iow ee the factual basis of « claim in State court state's argument seems to be,that, as a prac-

Judge ultimately held that Weeks could not _ /°rding to respondent, the “actual inno- EE he 8 ee = tical matter, § 2254(e)(2\(B) “necessarily dis-

meet the required burden of proof, and thus °*"¢® of the death penalty” doctrine no long- evidentiary hearing on unless penses with the concept of actual innocence

his procedurally defaulted claims were not ° Provides a gateway for petitioners to have applicant shows that— of the death penalty, since actual innocence

reviewable. Id Respondent argues that the their defaulted claims reviewed on habeas. (A) the claim relies on— of the underlying offense is the required

wlagistrate Judge erred in even applying the In support of this position, respondent first @ a new rule of constitutional law, showing for an evidentiary hearing.

“actual innocence” doctrine in petitioner’s Points to 28 U.S.C. § 2264(a). The statute made retroactive to cases on collateral —_— jt ig true that, if a petitioner can only show

case. According to respondent, both 28 provides, in pertinent part: review by the Supreme Court, that innocence of the death penalty, and not of

U.S.C. § 2264(a) and 28 U.S.C. § 2254(ex2) —-“) --. the district court shall only consid- was previously unavailable; or the actual crime, he may not be entitled to

dispense with any concept of “actual inno § ° 4 Claim or claims that have been raised (ii) a factual predicate that could not develop facts in an evidentiary hearing.’ Ac-

cence of the death penalty.” and decided on the merits in the State | have been previously discovered cordingly, a petitioner could, for all practical

Prior to passage of the AEDPA in 1996, courts, unless the failure to raise the claim . through the exercise of due diligence; purposes, be prevented from presenting 4

the law was clear on the reviewability of properly is and defaulted claim, even though he technically

(1) the result of State action in violation

this court may not review claims that have of the Constitution or laws of the United

been clearly and expressly defaulted under

ing is needed to develop the facts underlying

an independent and adequate state procedur- (2) the result of the Supreme Court's

tutional error, no reasonable factfinder the raised claim. A claim may or may not

al rule. Coleman v. Thompson, 501 U.S. 722, recognition of a new Federal right that would have found the applicant guilty of have an underlying factual basis that needs

750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A proadrpstongnye tem sony the underlying offense. _— further developing. If a petitioner does not

A state procedural default bars federal habe- based on a factual predicate that whether Congress's 9% The actual effect of 2254(eX2B) on capital

as corpus review of the claim, unless petition- could not have been discovered through © mwien ts evtang 32000) was to cumplenly cases is not entirely clear. See Cardwell v. Neth-

er can show both justifiable cause for, and the exercise of due diligence in time to eliminate the “actual innocence” exception in _—erland, 971 F.Supp. 997, 1009 (E.D Va.1997) (“It

actual prejudice y present the claim... capital cases, or merely to strictly limit what — is unresolved in this circuit whether the ‘inno

resulting from, his default. , could be considered “cause” under the cause cence’ requirement of § 2254(eX2B) requires a

ceatee > Santey, OF SS Sh Se BO. 8 USC. § 2264(a). and projetion eneapton, tn the past he Se — puthloner lasing te deuth penalty we demon

, 91 L.Ed2d 397 (1986); Wainwright v. Section 2264(a) does seem to strictly limit preme miscarriage of justice § => sirate innocence of the crime of which ho was

exception would still allow successive claims to convicred ‘innocence of the death pen-

Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 83 the circumstances under which a defaulted be heard even though the language. rom which rer armed oo on

7. Since Virginia fails w satisfy the require. 466-47 (holding Virginia exception developed, removed court will assume that the state is correct,

auébtem ee cnomenn toe io ae relovant comune, 38 USC. § 22008) 4 that only a showing of actual innocence of the

state satisfies the second requirement of estab- 1242-43 (holding that Virginia does meet the omg Roy 3A er crime will satisfy the requirements for obtaining

sufficient standards of competency for requirement for providing standards of compe- ee cote dae on egele barn, Ole an evidentiary heanng.

appointed counsel. See Wright, 944 F.Supp. at tency). , court offers no opinion on the provision s precise

APP 37 APP 38

WEEKS v. ANGELONE . 509

Cite as 4 F.Supp.2d 497 (E.D.Va 1998)

cffbey

ones.”); see also Sawyer v. Whitley, 505 U.S.

ing. It may be possible to show that, but for

the error, no reasonable juror would have

found the petitioner eligible for the death

penalty. In such cases, the limitations of

§ 2254(e)(2) would not apply because the pe-

titioner would not be attempting to introduce

any new evidence, or develop new facts that

he previously failed to develop.

(4) In addition, the limitations of

§ 2254(e)(2) would not apply where the appli-

cant did not “fail” to introduce the relevant

factual evidence in state proceedings. This

court agrees with other courts that have

examined this issue, and have held that

§ 2254(e)(2) does not apply when a petitioner

10. Of course, omissions by counsel are also at-

tributable to the client. Murray v. Carrier, 477

U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed2d 397

(1986) (holding that in absence of performance

that is constitutionally ineffective,

bears risk for all attorney errors that result in

procedural default).

11. This interpretation also accords with the Pres-

ident’s understanding of § 2254(e) when he

signed Pub.L. 104-132 into law. He stated: “If

attempted to, but was denied the opportunity

to develop the facts by the state courts. See

Cardwell v. Netherland, 971 F.Supp. 997,

1009-12 (E.D.Va.1997) (for a thorough dis-

cussion of this provision of the statute); see

also Love v. Morton, 112 F.3d 131, 136 Gd

Cir.1997); Burris v. Parke, 116 F.3d 256 (7th

Cir.1997); Washington u Mazurkiewicz,

1997 WL 83771, at *2Z n. 1 (E.D.Pa Feb.25,

1997). .

. (57) By prefacing the requirements with

“{i)f the applicant has failed to develop the

factual bases of a claim” the statute, on its

face, indicates that the above interpretation

is the correct one. § 2254(e\(2). The statute

seems to expressly apply only where the

flawed fact-finding is somehow attributable

to the petitioner.” In addition, as the Bur-

ris court held, “failure implies omission—a

decision not to introduce evidence when

there was an opportunity, or a decision not to

seek an opportunity.” Burris, 116 F.3d at

258. Furthermore, a strict liability interpre-

tation would allow states to insulate “its deci-

sions from collateral attack in federal court

by refusing to grant evidentiary hearings in

its own courts.” Burris, 116 F.3d at 259. If

Congress had intended to create a type of

strict liability statute, it could have easily

provided that the requirements of

fendant, § 2254(e)(2). will not apply." In

conclusion, the court holds that

§ 2254(e)(2)(B) does not necessarily dispense

with the concept of “actual innocence of the

death penalty” The standard for determin-

(§ 2254(e) (as amended) ) were read to deny liti- 1996.

gants a meaningful opportunity to prove the facts

APP 39 .

— —

510 4 FEDERAL SUPPLEMENT, 2d SERIES

general provisions of the AEDPA.™ Accord-

ingly, the reviewability of such claims are

still governed by the standards developed by

the Supreme Court, in cases such as Murray

v. Carrier and Sawyer v. Whitley. 477 US.

478, 106 S.Ct. 2639, 91 L.Ed2d 397 (1986);

505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed. 2d 269

(1992). Generally, a procedurally defaulted

claim will not be reviewable. The exception

is if a petitioner can show either (1) cause

and prejudice for his default; or (2) that

failure to hear the claims would constitute a

“miscarriage of justice” See Sawyer, 505

U.S. at 338-39, 112 S.Ct. 2514. To meet the

miscarriage of justice exception, the petition-

er must show that a constitutional violation

has probably resulted in the conviction of one

who is actually innocent. Schlup v. Delo, 513

U.S. 298, 115 S.Ct 851, 130 L.Ed2d 808

(1995). Those petitioners who are sentenced

to death may also meet the exception by

showing through clear and convincing evi-

dence that but for a constitutional error, no

reasonable juror would have found him eligi-

ble for the death penalty. Sawyer, 505 U.S.

at 336, 112 S.Ct. 2514.

For the above reasons, the court finds that

the Magistrate Judge did not err in evaluat-

A. Ineffective Assistance Claims

Weeks’ petition contained a number of in-

effective assistance of counse! claims. Only

Claims IX and XXXI are free-standing

claims. Many of Week's other thirty-two

1 Untimely State Habeas Petition

al review. Effective on July 1, 1995, prison-

ers under sentence of death were required to

in™ to the special provisions of Chapter 154. 28

U.S.C. § 2264(a)

... WEEKS ¥..ANGELONE _—. §11

comply with a statute of limitations for fing habeas corpus fled by a prisoner held under

corpus a

a habeas petition, and they were limited to » naes duns telteteeenea an

filing an original petition in the Virginia Su- less it is filed within sixty days after

preme Court. VaCode §§ 8.01-654.1, 8.01- denial by the United States Supreme Court

664(CX1); Supreme Court Rule 5:7A. Weeks’ of a petition for a writ of certiorari to the

counsel originally filed a petition for habeas judgment of the Supreme Court of Virginia

pent twedie Seng he filed in the on direct appeal...” VaCode § 8.01-654.1.

— of Prince William County in- This statute, which was relied on by the

of the Supreme Court of Virginia On Supreme Court in Weeks’ habeas

December 1, 1995, the date on which the petition, is clear and unambiguous. Accord-

petition was due under’ the new statute of ingly, the Magistrate Judge correctly found

Seanpeagr _Sounsel withdrew the petition that the Virginia Supreme Court’: dismissal

Le cea erat cnet dnd med 2 by sage of Weeks’ petition as untimsiy was a state

Supreme Court

Weeks argues that the rule applied to him in Procedural default of his claims. Petitioner

APP 41

‘

;

HBB

ait

sli

PL i

pretbaee

the first place in which a prisoner can raise a

particular claim. Coleman, 501 U.S. at 755,

111 S.Ct. 2546. The Supreme Court specifi-

was violated. Nor has he shown that such

4 FEDERAL SUPPLEMENT, 24 SERIES

violation, if proven, would be equivalent to a

violation of the Sixth Amendment Right to

Counsel, such that it could constitute cause

under Coleman, 501 U.S. at 752, 111 S.Ct

2546 (holding that an error by counsel could

constitute cause for defaulting a claim, but

only if at the time of the error, petitioner had

& constitutional right to the assistance of

1) ‘ 7 ET

Pursuant to Mackall, Weeks had no consti-

. tutional right to counsel on state collateral

review, even though he had no opportunity to

present his ineffective assistance of counsel

claims at an earlier point. Consequently,

Weeks cannot demonstrate cause to excuse

the procedural default of his ineffective assis-

tance of counsel claims.

8. Fundamental Miscarriage of Justice

[13] Petitioner objects to the Magistrate

Judge’s conclusion that Weeks did not meet

the standard to have his defaulted ineffective

assistance claims reviewed under the “mis-

carriage of justice” exception. For the fol-

lowing reasons, the Magistrate Judge did not

err in finding that Weeks’ defaulted ineffec-

tive assistance claims could not be reviewed.

Weeks does not claim that he is actually

innocent of the murder of Trooper Cavazos,

but only that he is “actually innocent” of the

death penalty. In order to have any of his

defaulted claims reviewed on the merits,

Weeks is required to show by clear and

convincing evidence that but for constitution-

al error, no reasonable juror would have

found petitioner eligible for the death penal-

ty. Sawyer v. Whitley, 505 US. 333, 112

S.Ct. 2514, 120 L.Ed.2d 269 (1992). In addi-

tion, a petitioner must focus “on those ele-

ments which render a defendant eligible for

the death penalty, and not on additional miti-

gating evidence which was prevented from

being introduced as a result of a claimed

constitutional error.” Jd at 347, 112 S.Ct

2514. Accordingly, Weeks must show that

he was actually ineligible for the death penal-

ty under Virginia law, so that barring the

constitutional error, no reasonable juror

would have sentenced him to death.

Under Virginia law, a juror must find one

of two aggravating factors for a defendant to

be eligible for the death penalty: (1) that

WEEKS ¥, .ANGELONE | 513

Cite as 4 F.Supp.td 497 (E.D.Va. 1998)

there is a reasonable possibility that the de-

fendant would commit criminal acts of vio-

lence which would constitute a continuing

serious threat to society (“future dangerous-

ness"); or (2) the defendant's conduct in

committing the offenses was outrageously or

wantonly vile, horrible or inhuman, in that it

involved torture, depravity of mind, or aggra-

vated battery to the victim (“vileness”). Va

Code § 19.2-264.4(c). In Weeks’ case, the

Commonwealth presented evidence on the

second factor, “vileness.” The state focused

on proving depravity of the mind and/or ag-

gravated battery. See R & Rat 29-30 (for

description of evidence presented to support

presence of both factors). The jury found

the presence of “vileness,” and subsequently

imposed the penalty of death.. The Virginia

Supreme Court specifically found that both

depravity of mind and aggravated battery

were sufficiently established. Weeks v. Com-

monwealth, 248 Va 460, 450 S.E.2d 379

(1994), cert denied sub nom Weeks v. Vir-

ginia, 516 US. 829, 116 S.Ct 100, 133

L.Ed.2d 55 (1995). :

In order to have his ineffective assistance

of counsel claims reviewed on the merits,

Weeks must show that but for the ineffective

assistance, no juror would have found the

presence of the “vileness” aggravating factor.

The Magistrate Judge was correct in noting

that Weeks’ “petition glosses over his claims

of ineffective assistance for the most part,

raising the claims in the alternative to sub-

stantive claims, addressing them in a cursory

fashion.” R & R at 30." He never explains

how the alleged ineffective assistance of

1S. Only Claims IX and XXX] were raised inde-

pendently, and nei

the finding that Weeks

evidence that but for ineffective assistance of

counsel, no jury would have found petitioner

eligible for death.

In his petition, where he does argue inef-

fective assistance of counsel, petitioner

merely argues that a “reasonable probability

exists that, absent counsel's deficient perfor-

mance occasioned by the trial court’s error,

the outcome at trial would have been differ-

ent with respect to guilt and/or sentence.”

This is a restatement of the prejudice prong

of the Strickland test. See Strickland v.

Washington, 466 U.S. 668, 694, 104 S.Ct

2052, 80 L.Ed2d 674 (1984). However, even

assistance.” Petitioner's Obj. to R & R at

by the court’s repeated refusal not only to

provide forensic and ballistic expert assis-

tance, but also to permit the trial defense

counsel to request such assistance in an ez

parte hearing, Mr. Weeks’ trial defense coun-

sel. was ineffective because he was barred

from obtaining and using essential members

of the trial team.” Petitioner’s Obj. to R &

Strickland prejudice and not “actual innocence.”

Earlier in the petition, Weeks argued that his

procedural default should be excused for cause

due to the ineffectiveness of state habeas counsel.

See Pet. at 36. Petitioner never

argued

in his petition that, in the alternative, the default

should be excused under the “actual innocence”

objections to the Magistrate Judge's conclusions.

Accordingly, this court will review that portion of

the R & R. as well as the corresponding

tions, as if it had been raised in the petition.

APP 43

514

R at 14-15. According to Weeks, this inef-

adequately considering the evidence at trial

Cir.1994)." This is because the actual inno-

17. Petitioner ignores the fact that most of the

evidence relied on to vileness and depravity

4 FEDERAL SUPPLEMENT, 2d SERIES

federal] constitutional errors do not result in

the incarceration of innocent persons.”

Herrera v. Collins, 506 U.S. 390, 113 S.Ct

853, 122 L.Ed2d 203 (1993). The habeas

court does not sit to correct errors of fact,

but to ensure that individuals are not impris-

oned in violation of the constitution. Jd at

400-01, 113 S.Ct. 853. ‘

The problem, in this case, is that the con-

stitutional error, which petitioner is claiming

should be reviewed, is not the alleged trial

court error denying the motion for expert

assistance. Instead, Weeks is arguing that

his ineffective assistance of counsel claims

should be reviewed. However, he never suf-

ficiently explains precisely how his trial coun-

sel was ineffective and how that ineffective-

ness contributed to the finding of “vileness.”

Petitioner essentially argues that, as result

of the court's denial of expert assistance, his

counsel's representation was rendered inef-

fective. See Petitioner's Obj. to R & R at 14;

Pet. for Writ at 42. However, he does not

513 US. 298, 115 S$.Cc 851, 130 LEd2d 808

(1992), which was rejected by Schiup for claims

of actual innocence of the crime itself, and that

preme Court of Virginia's decision. “On proba- makes no mention “ “eng

tion, riding in a stolen vehicle, and possessing a ae ro mabaarige te lym egy ante

weapon that the evidence showed had been used y .

ino previous Nerth Caroline murder, defendant turned Spencer. See O'Dell, 95 F.3d at 1246 n.

jones Gin Gane @ Gell Weees.... Tes olen Court's decision in Schiup would affect the

posed no threat to defendant in connection with Spencer holding, it would only affect it with re-

this routine traffic stop; the trooper died with his spect to claims of acwal innocence of the crime

service revolver still enclosed in its holster. itself. Sawyer, the case upon which Spencer re-

Then, the defendant lef and returned to the lied, still governs the standard of review for

scene. falsely claiming that the attempted to ren- claims involving actual innocence of the death

der assistance to the victim when his real pur- penalty. See Sawyer, $05 U.S. at 333, 112 S.Cv

pose was to retrieve incriminating evidence.” 2514 (petitioner must show “by clear and con-

Weeks v. Commorwealth, 248 Va. 460, 450 vincing evidence that but for a constitutional

S.E.2d 379, 390-391 (1994). eee ene ecntee mane woe oe

18. The Fourth Cireuit Court of Appeal has since Pooucui wise gan ne enn Penalty under

questioned the correctness of Spencer, in light of

the Supreme Court's decision in Schlup v. Delo,

APP 44 4

. WEEKS v. ANGELONE | 515

Cite as 4 F_Supp.2d 497 (E.D.Va 1998)

point of fact, Weeks’ counsel did move for the

appointment of expert assistance in a timely

manner. In addition, there is no evidence

that counsel could have done anything differ-

ently to persuade the court to change its

mind and appoint such assistance.”

The court finds that petitioner has made

no colorable showing of an underlying consti-

tutional error by counsel that is related to

the jury finding of eligibility for the death

penalty. Thus, petitioner has clearly not met

the standard required to show that a miscar-

riage of justice will result if his defaulted

ineffective assistance of claims are not re-

viewed.

B. Claims Barred Under Supreme Court

Rule 5:25

({17] Petitioner objects to the Magistrate

Judge's finding that Weeks’ Claims IV and

XXIV are procedurally barred, and thus

should be dismissed. The Supreme Court of

Virginia had dismissed the claims on direct

appeal under Supreme Court Rule 5:25.

Rule 5:25 prohibits the consideration of er-

rors which were not contemporaneously ob-

jected to at trial, and thus preserved for

appeal

The Magistrate Judge held that Rule 5:25

constitutes an adequate and independent

state bar, such that a federal court may not

demonstrate “cause” and “prejudice” for his

default. The Judge further found that peti-

uve.

20. Weeks disagrees with the Magisrate Judge's

characterization of the

US. 411, 423, 111 S.Ct. 850, 112 L.Ed.24 935

(1991); James v. Kentucky, 466 US. 341,

348-51, 104 S.Ct 1830, 80 LEd2d 346

(1984).

determination is a federal question, the con-

clusion that a state does not require a con-

temporaneous objection is a significant deter-

mination, and “should not be reached lightly

or without clear support in state law.”

Meadows'v. Holland, 831 F.2d 493, 497 (4th

Cir.1987) (en banc), vacated on other

grounds, 489 US. 1049, 109 S.Ct. 1306, 103

L.Ed.2d 575 (1989). According to the Fourth

Circuit Court of Appeals, the effect would be

to “substantially diminish the concept of fi-

nality in the operation of the state criminal

justice system.” Jd

This court’s own careful de novo review of

al review may be precluded. Accordingly,

the court does hereby adopt and approve the

findings and recommendation of the United

States Magistrate Judge related to Rule 5:25.

See R & R at 31-33 (for a detailed discussion

of Rule 5:25 as a procedural bar to federal

[18] The Magistrate Judge held that

external to the defense impeded counsel's

efforts to comply with the state's procedural

rule. Murray v. Carrier, 477 U.S. 478, 488,

106 S.Ct 2639, 91 L.Ed2d 397 (1986). In

this case, though, the actual cause of coun-

sel’s failure to properly brief particular

claims was not the fifty-page limit, but was

the strategic choice made by counsel to focus

on particular claims.

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WEEKS v. ANGELONE 519

Che as 4 F Supp.td 497 (E.D.Va 1996)

maintains that the denial of the ballistics

expert and forensic expert was clearly erro-

neous under the correct standard. This

court finds that the Magistrate Judge did

utilize an incorrect standard in determining

the request. However, this court upholds

was pursuant to 21 U.S.C. § 848(qX(9), which

states:

tain such services on behalf of the defen-

dant, and if so authorized, shall order the

payment of fees and expenses therefor un-

der paragraph (10).

21 US.C. § B48(qX9). Thus the question

essentially reduces to whether the appoint-

ment of ballistic and forensic experts were

reasonably necessary to Weeks in presenting

his petition for § 2254 relief. The statute

is not reasonably necessary where an eviden-

tuary hearing at which the testimony could be

will not be held. See Lawson wv.

Dizon, 3 F.3d 743, 753 (4th Cir.1993); see

also Fuller v Johnson, 114 F.3d 491, 502

(Sth Cir.) (experts not reasonably necessary

24. This is in contrast w the & novo review

accorded the Magistrate Judges recommenda-

where such testimony would be procedurally

barred), cert denied, —- US. —, 118S.Ct

399, 139 LEd2d 312 (1997); Cardwell »

Netherland, 971 F Supp. 997, 1007 (E.D.Va

1997) (experts not reasonably necessary if

evaluations cannot be introduced); Burris v.

Parke, 948 F Supp. 1310, 1327 (N.D.Ind.1996)

(experts not reasonably necessary where evi-

dence cannot be introduced because petition-

er is not entitled to an evidentiary hearing),

afd 116 F.3d 256 (7th Cir.1997). Accord-

ingly, if petitioner's claim, for which he re-

quests the expert assistance, cannot be re-

viewed on the merits, or if he would not be

able to win on the merits regardless of the

penalty statute. He then held that if Weeks’

experts had testified at trial as Weeks hoped

they would, “that additional evidence would

uons on dispositive matters, to which objections

have been made. See Fed R.Civ.P. 72(b).

APP 49 :

However, Jackson announced the standard

would be relevant if Weeks wanted the ex-

perts to help prove a claim that there was

insufficient evidence to support a conviction.

His claim, for which he seeks assistance,

though, is not that there was insufficient

evidence to convict him, or even that there

was insufficient evidence to sentence him to

the death penalty. His underlying claim is

that the trial judge violated his due process

rights when he denied him expert assistance

at trial

(27) Petitioner can prevail on such a ha-

beas claim if he can show that

the trial error was not harmless, ie., that he

was prejudiced, the Jackson standard is not

has directed federal courts on collateral re-

view to apply the standard set forth in Kot

teakos to trial errors. Brecht v. Abraham-

son, 507 US. 619, 637, 113 S.Ct. 1710, 123

L.Ed2d 353 (1993). Thus federal courts

;

“substantial and injurious effect or influence

in determining the jury's verdict” Jd (quot-

ing Kotteakos v. United States, 328 U.S. 750,

776, 66 S.Ct 1239, 90 L.Ed. 1557 (1946)).

The Fourth Circuit Court of Appeals has

held that the Brecht harmless-error standard

The Fourth Circuit has recognized that an

indigent defendant has a right to the assis-

tance of an expert, if “a substantial question

exists over an issue requiring expert testimo-

ny for its resolution and the defendant's posi-

618 F.2d 1021, 1026 (4th Cir.1980) (quoting

Jacobs v. United States, 350 F.2d 571, 573

(4th Cir.1965)). However, the United States

Supreme Court has not directly held that

there is a federal constitutional right to non-

psychiatric experts. In Ake the Supreme

Court case relied on by petitioner, the Court

held that the state must provide an indigent

trial judge that his sanity at the time of the

offense is to be a significant factor at trial.”

Ake v. Oklahoma, 470 US. 68, 105 S.Ct

1087, 84 L.Ed 2d 53 (1985). Although there

was some broad language in Ake, which could

potentially be applied to a variety of circum-

APP 50

stances,™ the precise holding was limited to

the facts of that case. That case only in-

volved a request for psychiatric expert assis-

tance. Jd

The Fourth Circuit recently refused to ex-

amine a habeas claim, which was similar to

Week's request for experts, under the “new

rule” doctrine.™ Gray v Thompson, 58 F.3d

59 (4th Cir.1995), vacated on other grounds,

5i8 U.S. 152, 116 S.Ct. 2074, 135 LEd2d 457

(1996). In that case, the petitioner main-

tained that the state court's refusal to ap-

point a private investigator for the defense

contravened due process. /d at 66. The

Fourth Circuit stated that the “Supreme

Court has flatly declined to address the ques-

tion whether, ‘as a matter of federal constitu-

tional law(,) what if any showing would [enti-

tle] s defendant to [private] assistance.’”

Grey, 58 F.3d at 66 (citing Caldwell u Mis-

sissippi, 472 US. 320, 323-324 n. 1, 105 S.Ct

2633, 86 L.Ed2d 231 (1985)). The court

went on to hold that by resolving that ques-

tion, the court would clearly be breaking new

constitutional ground. Jd at 66; see also

George v. Angelone, 901 F Supp. 1070, 1085

(E.D.Va.1995) (relying on Gray in refusing to

decide the merits of habeas petitioner's claim

that the trial court's failure to appoint an

investigator deprived him of due process),

aff'd on other grounds, 100 F.3d 353 (4th

Cir.1996).

There is no reason to believe that the

Fourth Circuit would treat a claim based on

denials of ballistic and forensic experts dif-

ferently than a claim based on the denial of

making

raw materials integral to the building of an effec-

tive defense.” Ake, 470 U.S. am 76, 105 $.Cc

1087.

due process,

impose a new obligation

violation of Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989)).

Under § 2254(d), a petition for habeas can

only be granted if the state’s decision was

favor would require the court to announce a

“new rule” of constitutional law in violation of

Teague Certainly, if such a decision is not

permissible under Teague, it would also not

be permissible under the AEDPA’s more re-

strictive standard of review.” If finding for

Id. at 486, 110 S.Ct. 1257. A “new rule” is “a

tote

Hun

APP 51 é

522 4 FEDERAL SUPPLEMENT, 24 SERIES

petitioner would require declaring a “new

rule,” such a rule could not have been clearly

established federal law, as determined by the

Supreme Court, at the time the state made

its decision in thiscase. .

Because this court could not find in Week's

favor on his claim that he was denied due

process when the trial court refused to pro-

vide expert assistance, expert assistance is

not “reasonably necessary” for this proceed-

ing.

B. Standard of Review Under the AED-

meritiess.* However, for the sake of clarity,

the court wil] briefly summarize the applica-

ble standard o. review.

The AEDPA is generally applicable to

Weeks’ case, because his petition was filed

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

28. Weeks had raised the same con-

tained in his objections to the R & R in “Petition-

nhs hy Sy

AUDPA as wellestaconsioomenslig.”

29. The specific provision of § 107 of the AEDPA,

however, is not applicable. Although § 107 con-

shall not be granted with respect to any

claim that was adjudicated on the merits in

State court proceedings unless the adjudi-

cation of the claim—

(1) resulted in a decision that was con-

trary to, or involved an unreasonable

application of, clearly established Feder-

al law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based

on an unreasonable determination of the

facts in light of the evidence presented

in the State court proceeding.

[29] A federal district court must first

determine whether there is a state decision

on the “merits” with respect to a particular

claim Section 2254(d) applies to any claim

adjudicated on the merits in state court.

Contrary to the argument advanced by peti-

tioner, a decision by a state court that sum-

marily dismisse’ a petitioner's claim as mer-

itless is an adjudication on the merits within

the meaning of § 2254(d). Hennon v. Coo-

per, 109 F.3d 330, 335 (7th Cir.) (holding that

“perfunctory” state court rulings are none-

theless evaluated pursuant to § 2254(d) for

reasonableness), cert. denied, ——- US. —,

118 S.Ct. 72, 139 L.Ed.2d 32 (1997); see also

Parker v. Angelone, 959 F Supp. 319, 320

(E.D.Va.1997) (decision by state court sum-

Hit

iil

tains several provisions pertaining

capital defendants, these provisions are

bie only if the state meets the “opt-in”

ments set forth in § 107. As explained

APP 52 :

WEEKS v. ANGELONE §23

Cite a0 4 FSupp.td 497 (ED.Va 1998)

1015 (E.D.Va.1997). In cases where there is

no indication of how the state court came to

its decision, it will obviously be more difficult

for the federal court to juige whether the

ultimate determination involved an unrea-.

sonable application of federal law. As ex-

plained by the Court of Appeals for the

Seventh Circuit: .

is just realism. It doesn’t follow that the

criterion of a reasonable determination is

whether it is well reasoned. It is not. It

is wether the determination is at least

minimally consistent with the facts and

circumstances of the case.

Hennon, 109 F.3d at 335.

(30) If there is such a qualifying state

decision on the merits, the writ shall not be

issued unless one of the statutory exceptions

is met. Section 2254(d)(1) governs the stan-

dard of review for legal claims. A federal

court may grant a petition if it finds that the

state decision was contrary to clearly estab-

tioner’s freestanding claims themselves.” R

& R at 46. By changing the focus of review,

the Act increases the respect due state deci-

sions.

sion to be upheld where the decision is “con-

trary to” or is “an unreasonable application

of” federal law. Thus, the Act does not elimi-

nate the Judicial power of the federal judicia-

ry to say what the law is, 2s required by

Article ITI of the United State. Constitution.

[32] The AEDPA altered habeas review

review applicable to claims based on pure

questions of fact. When a petition for habe-

as relief is based on a challenge to a factual

determination, before granting an application

for a writ, the federal court must find that

the state decision was based on an unreason-

(33] Petitioner also objects to footnote 20

of the Report and Recommendation. Weeks

interprets the R & R as finding that the

AEDPA supplants the harmless error stan-

dard outlined in Brecht v. Abrahamson, 507

US. 619, 113 S.Ct 1710, 123 L.Ed2d 353

(1993). This court does not read the Magis-

trate Judge’s R & R the same way. The

Magistrate Judge simply stated that “(under

pre-Act law, this petition would be decided

under the standard outlined in (Brecht ],”

nothing more than a potentially relevant auihon-

ty from the court of last resort of another juris-

diction. Brown, 344 U.S. at 458. 73 S.Cr 397.

APP 53

a tn te tl el

524 4 FEDERAL SUPPLEMENT, 2d SERIES

of Weeks’ claims could not meet the Brecht

harmless error standard. He never made

any reference to the status of Brecht post-

AEDPA. : :

However, to the extent that Weeks is cor-

is nothing in the new law which would over-

rule or contradict Brecht Under Brecht, a

or influence in determining the jury's ver-

dict.” Brecht, 507 U.S. at 638, 113 S.Ct

1710; see also Watson v. Boone, 131 F.3d

153, 1997 WL 741165 (10th Cir.1997) (unpub-

lished decision) (applying Brecht harmless

error standard to trial error in case that was

reviewed under AEDPA). Thus, even if

Weeks shows that the state court incorrectly

found a claim to be meritless, in that the

decision was contrary to clearly established

federal law, he must stil] show that the prov-

en trial error was not harmless under the

Brecht standard of review.

IV. Findings of Fact and Conclusions of

Lew

Respondent objects to the Report & Rec-

ommendation on the ground that the Magis-

preserve the issue as a federal constitutional

estab-

lished law that if a habeas petitioner wishes

F.3d 907, 911 (4th Cir.) (explaining that in

order to preserve the right to collateral re-

view in federal court, petitioner must have

fairly presented the substance of the federal

claim to the state court), cert denied sub

nom. Matthews v. Moore, — US. ——,

118 S.Ct. 102, 139 L.Ed.2d 57 (1997).

In the present case, there is no question

that the Supreme Court of Virginia was

alerted to the fact that petitioner was assert-

ing these claims under the United States

Constitution, in addition to the Virginia Con-

stitution. For each of the claims, petitioner

clearly argued that the trial court’s decision

constituted a violation of particular provi-

sions of the Constitution of the United

States. See Br. of Appellant to S.Ct of Va

al habeas corpus. See 28 U.S.C. § 2254(a)

(“district court shal] entertain an application

for a writ of habeas corpus ... only on the

ground that he is in custody in violation of

the Constitution or laws or treaties of the

United States”). For the following reasons,

each of these claims do raise federal constitu-

tional issues.

As to Claim XVIII, respondent cites Davis

v. Greer for the proposition that a hearsay

claim is solely a state law matter, and does

not raise a federal constitutional claim. 13

APP 54

WEEKS v. ANGELONE 525

Che as 4 F.Suppld 497 (E.D.Va 1998)

F.3d 1134, 1139 (7th Cir.1994). However, the

court in Davis held that any violation of the

hearsay rule at sentencing is a matter of

state law, as the Sixth Amendment Confron-

tation Clause does not apply at sentencing.

The Confrontation Clause certainly does ap-

ply during trials, and a violation of the hear-

say rule can implicate that clause. /d In

this case, to the extent that the claim is only

a hearsay claim, petitioner clearly argues

that the admission of hearsay during trial

violated his rights under the Constitution.

Accordingly, this objection by respondent has

no merit.

Similarly, respondent’s objections as to the

reviewability of Claims XIX and XXII are

distinction between a mere error of state law

and one that is so egregious as to render the

trial fundamentally unfair.” Respondent’s

Obj. to R & R +t 7, 911.

However, - . clear that the violation of a

state evidentiary rule can also constitute a

violation of the United States Constitution.

Respondent fails to realize that, once a con-

stitutional violation is adequately alleged, in

order to determine whether the error is

merely one of state law or is in fact a viola-

tion of the United States Constitution, the

court must review the claim on its merits.

In reviewing each of the claims, the Magis-

trate Judge did ultimately hold that none of

alleged errors were contrary to, or an unrea-

sonable application. of, federal law. As an

correctly held that Weeks adequately pre-

sented the factual and legal basis of his

federal constitutional claims, so that this

court could review the claims on their merits.

For the same reasons, respondent’s objec-

tion to the court's review of Claim XXV on

the merits must also be overturned In

court committed error by not submitting a

particular instruction to the jury. Respon-

dent argues that this claim is merely a state

procedural issue. However, errors relating

to jury instructions can clearly rise to the

leve) of a due process violation, depending on

the particular circumstances. The Magis-

trate Judge was correct in finding that

Weeks adequately alleged a violation of his

federal constitutional rights, so that it may

In Assigned Error 20, Weeks argued that

there was insufficient evidence to show that

Weeks was an accessory after the fact to the

North Carolina murder, and thus the evi-

dence implying as much should not have

been admitted. See Br. of Appellant to S.Ct

of Va. at 35 (Assigned Error 20). Although

present Claim XX relates to admissibility of

the same evidence, different arguments are

relied upon than were referred to on direct

appeal. In Claim XX, petitioner argues that

the evidence was irrelevant and that any

probative value was outweighed by its preju-

dicial effect, thus violating his due process

rights under the United States Constitution.

Petition for a Writ at 125-31. In addition,

APP 55

CEEAGT ERE g

Heat

att

REP 2B

slisualt

patcebehel

will not address the merits of Claim I or XX,

but will address the merits of Claims I, V,

VII, XVIII, XIX, XXII, and XXV.

A ClaimV

[34] Petitioner objects to the Magistrate

Judge's conclusion that Claim V is without

merit. In Claim V, Weeks argues that he

rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments when he was not

allowed to make an ez parte showing on his

claim for expert assistance.

The trial judge refused to allow petitioner

to make his application for a ballistics expert

and forensic pathologist ex parte. The Su-

preme Court of Virginia, heid that Weeks’

rights were not violated by the denial of an

ez parte hearing. Weeks v. Commonwealth,

248 Va. 460, 450 S.E2d 379, 388 (1994).

Under federal criminal procedure, there is

clearly a statutory right to an ex parte hear-

ing. 18 U.S.C. § 3006A(e)(1). However, the

United States Supreme Court has never held

B. Claim VII

[35] Petitioner objects to the Magistrate

Judge's conclusion that Weeks was not enti-

tled to a Bill of Particulars, and that the

Supreme Court of Virginia did not err in

upholding the trial court’s decision denying

Weeks’ request for one. The trial court de-

nied petitioner’s request for a Bill of Particu-

lars. The Supreme court of Virginia held

that a Bill of Particulars was not required

under Strickler v. Commonwealth, 241 Va

482, 404 S.E.2d 227, 232-33 (1991). See

porting his claim: (1) that the mandatory

(holding that whether the Commonwealth is

Nit

inet

reference to an ex parte hearing, but the

court did not hold that such a hearing is of the indictment Thus, the trial court

constitutionally required Ake v. Oklahoma, judge did not err under Virginia law in.deny-

470 U.S. 68, 105 S.Ct 1087, 8 L.Ed2d 53 ing a Bill of Particulars, and consequently

(1985). did not deny Weeks any state created liberty

APP 56 :

Che as 4 F Suppl 497 (E.D.Va. 1996)

WEEKS v. ANGELONE 527

interest, in violation of the due process

clause.

Furthermore, there is no constitutional

right to . Bill of Particulars. United States

v. Bales, 813 F2d 1289 (4th Cir.1987).

Weeks was essentially seeking detailed dis-

covery of all of the prosecution's evidence

against him.. However, he cannot point to

any United States Supreme Court case in

support of his theory that the denial of a Bill

of Particulars was in violation of his rights

under the federal Constitution _.

For these reasons, and the reasons stated

in the Report and Recommendation, petition-

er cannot show that the Supreme Court of

C. Claim X

Petitioner objects to the Magistrate

Judge's conclusion that Weeks cannot meet

the required burden with respect to Claim X

Weeks maintains that the trial court’s refusal

to strike Juror Pama for cause was unreason-

able, and deprived Weeks of due process,

effective assistance of counsel, and a fair

trial.

Juror Pama had a close relative that was

shot to death in the course of his duty as a

police officer. Weeks argues that Juror

Pama’s answers during voir dire were ambig-

uous, and the statements combined with the

court did not commit error in refusing

dismiss Pama for cause. Weeks, 450 SE2d

at 389.

have ruled

467 U.S. 1025, 1036-37, 104 S.Ct 2885, 81

L.Ed2d 847 (1984) (holding question of indi-

528 4 FEDERAL SUPPLEMENT, 2d SERIES

his oath.” Petitioner's Obj. to R & R at 46.

The Supreme Court of Virginia held that

“the trial court did not abuse its discretion in

argumentative, or nonspecific” Weeks v.

Commonwealth, 248 Va. 460, 450 S.E.2d 379,

388 (1994).

In this case, the Supreme Court of Virgi-

nia’s decision is not contrary to, or an unrea-

sonable application of, clearly established

federal law, as determined by the Supreme

Court The first question was supposedly

based on the principles outlined in Caldwell

v. Mississippi, 472 US. 320, 105 S.Ct. 2633,

86 L.Ed2d 231 (1985). In Caldwell the

Supreme Court held that “it is constitutional-

ly impermissible to rest a death sentence on

a determination made by a sentencer who

has been led to believe that the responsibility

for determining the appropriateness of the

defendant's death rests elsewhere.” /d at

328-29, 105 S.Ct. 2633. In that case, the

prosecutor had led the jury to believe that

In Weeks’ case, there were no impermissi-

ble arguments made to the jury. Caldwell

does not speak to the appropriateness of

questions on voir dire. In fact, the underly-

ing assumption in Caldwell seems to be that

sentencers normally treat their power to de-

termine the appropriateness of death as an

“gwesome responsibility.” Jd at 329," 105

S.Ct. 2633. The issue in Caldwell only arose

because the state actively altered what would

be the normal perception of jurors. In this

case, there was no reason to believe that the

jurors would not believe they had an “awe-

some responsibility.”

The second question was supposedly de-

signed to find out if jurors believed that a

defendant sentenced to life imprisonment

would be out within a few years. According

to Weeks, a juror who believed accordingly

would be more likely to impose death He

maintains that such a question is required

under Wainwright v. Witt 469 US. 412, 105

S.Ct. 844, 8&3 L.Ed2d 841 (1985), to ensure

that all jurors will be able to set aside their

views, and follow the judge’s instructions and

counsel's argument is that the proposed

question does not ask jurors if they believe

that a defendant sentenced to life imprison-

ment will be out in a few years. The ques-

tion instead asks jurors whether they believe

that a defendant with a life sentence would

defendant will spend the rest of his life in

An adequate voir dire is part of the Sixth

Amendment right to an impartial jury. Mor-

gan v. Illinois, 504 US. 719, 112 S.Ct. 2222,

32. Twenty-five years is. in fact, when Weeks been sentenced wo life umpnsonment

would have been eligible for parole if he had

APP 58

WEEKS v. ANGELONE . 529

Cite as 4 F Supp.td 497 (E.D.Va. 1998)

119 L.Ed.2d 492 (1992). However, the above

question is not required under Wainwright v.

Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed 2d

841 (1985), as claimed by petitioner, to en-

sure that all jurors will be able to set aside ~

their views, and follow the judge's instruc-

tions and their oaths. The trial judge did

ask members of the jury panel the following:

if “the jury were to convict the defendant of

capital murder, would you be able to consider

voting for a sentence less than death?” Trial

_ Tr. at 42 (Oct. 18, 1993). This question is

sentence could result in an early release from

prison, and follow the judge's instructions

and their oaths. For the reasons stated here

and in the R & R, the decision to refuse the

of, clearly established federal law, as deter-

mined by the Supreme Court Accordingly,

this claisn is without merit.

E. Claim XIil

[38] Petitioner objects to the Magistrate

Judge’s conclusion that Claim XIII is without

merit. According to Weeks, the trial judge

deprived him of due process . 1d a fair trial

voir dire questions regarding racial bias.

See R & R at 73-74 (for list of denied ques-

uons).

L.Ed.2¢ 27 (1986), for the argument that his

informed of the race of the victim and ques-

tioned on the issue of racial bias. /d at 36,

106 S.Ct. 1683. - At the same time, though,

indicated that even where inquiry is constitu-

tionally required because of inextricably in-

volved racial issues, confining the questioning

to a single brief general question may be

“sufficient to focus the attention of prospec-

tive jurors on any racial prejudice they might

entertain” Ham wv. South Carolina, 409

~ US. 524, 527, 93 S.Ct 848, 35 L.Ed2d 46

(1973) (question “{wJould you fairly try this

case on the basis of the evidence and disre-

garding the defendant's race” held to be

sufficient).

In this case, the trial court did allow two

questions on the issue of racial bias that were

much more specific than the question re-

ferred to in Ham: (1) Would you disapprove

of a member of your family marrying a per-

son of a different race for that reason only?;

(2) Do you believe that persons of African

descent are more likely to commit crimes

than other persons of other races? Trial Tr.

at 52 (Oct. 18, 1993}. The judge used his

fectual The Supreme Court of Virginia held

that “the trial court did not abuse its discre-

tion, in this case of a white victim and a black

530 4 FEDERAL SUPPLEMENT, 2d SERIES

lished federal law. Accordingly, this claim is

The trial court did allow a number of ques-

tions that were related to the imposition of

the death penalty and the possibility that a

potential juror may not be able to perform

his duties in accordance with the instructions

kall u Angelone, 131 F.3d 442, 451 (4th

Cir.1997) (en banc), cert denied — US.

Rhode Island v. Innis, 46 US. 291, 100

S.Ct. 1682, 64 L.Ed.2d 297 (1980)." Petition-

ing of Rhode Island vu. Innis, 446 US. 291,

100 S.Ct 1682, 64 L.Ed 2d 297 (1980). Ac-

cording to the United States Supreme Court,

the Miranda safeguards come into play

whenever a person in custody is subjected to

either express questioning or its functional

equivalent /d at 300-01, 100 S.Ct 1682.

The Court went on to define what is meant

by the phrase “functional equivalent” This

term was defined as any “words or actions on

the part of police officers that they should

have known were reasonably likely to elicit

an incriminating response” from the suspect.

Id at 301, 100 S.Ct 1682 This definition is

intended to focus the analysis upon the per-

ceptions of the suspect, and not the intent of

the police. Jd “ :

In this case, defendant was clearly in cus-

tody at the time of the second conversation

with Agent Rowland. Weeks was read his

interrogavon. Weeks v Commonwealth. 248 Va

460, 450 S E.2d 379, 386 (1994).

WEEKS v. ANGELONE 531

Che as 4 F Supp.ad 497 (E.D.Va 1996)

Because Weeks was clearly in custody at

the ame of the second conversation, the deci-

versaton are as follows: After asking Weeks

if he remembered the rights read to him

earuer, Rowland proceeded to summarize the

invesOgation through the course of the day's

events to that point in time. This summary

included telling Weeks that an eyewitness to

the shooting had made a positive identifica-

ton of him as the assailant In fact, the

truth was that a witness had identified defen-

Gant as a person she saw at the scene after

the homicide, but that she had not actually

witnessed the shooting At the conclusion of

this summary, Rowland told Weeks that,

“[t}his is your opportunity to provide your

explanation as to what happened at the

shooting scene.” Weeks responded by stat-

ing “Yes, I was packing.” He then proceed-

ed to confess to the trooper’s murder.

The interaction between Weeks and Agent

Rowland was clearly an interrogation under

Innis, 446 US. 291, 100 S.Ce 1682, 64

L.Ed2d 297. Apparently, the respondent

would have the court find that the final state-

ment by Rowland was not a question, or

words designed to elicit a response, simply

because there is no question mark at the end

the shooting scene’ or “Do you want to tell

me what happened at the shooting scene?”

The officer should have known that his state-

ment, indicating that he was providing

Weeks with the opportunity to explain his

side, and immediately following the recitation

of evidence against Weeks, was reasonably

likely to elicit an incriminating response.

More than likely, Officer Rowland’s very in-

tent, or at least hope, was to illicit a confes-

sion from Weeks.

The cases cited by the Commonwealth in

its supporting brief are inapposite to the

question .« « ‘ether the above interaction

constitut.< « interrogation First, respon-

dent cites Ray u Duckworth, 881 F.2d 512,

518 (7th Cir.1989), for the proposition that

there is nothing objectionable if an offi-er

merely informs a suspect about the nature of

the evidence against him. However, whether

it is objectionable to inform a suspect about

the nature of the evidence against him is not

the issue. The issue is whether the officer's

Statements constituted an “interrogation”

The issue in Ray was not whether there was

an interrogation, but whether the interroga-

tion that took place was coercive. /d In

addition, the officer did not merely inform

the suspect about the nature of the evidence

against him As explained above, he misrep-

resented some of the evidence. A deliberate-

ly false statement indicates that the officer's

intention was not simply to keep Weeks in-

formed about matters relating to the charges

against him, as respondent would have this

court believe was the case here. See Re-

spondent’s Brief at 69.

[43] Second, respondent cites Shedelbow-

er v. Estelle, 885 F 2d 570 (9th Cir.1989), for

the argument that an officer's false state-

ment is not necessarily equivalent to an in-

terrogation. While this may be true, a false

Statement is also certainly not evidence that

there was not an interrogation If anything.

false statements that are deliberately made

do indicate an intent to illicit an incrimina-

tng response. Although the Supreme Court

held in Jnnis that the focus of the inquiry is

not on the officer's intent, the officer's intent

is also not irrelevant. See /nnis, 446 US. at

302 n 7, 100 S.Ct 1682 (holding that an

officer's intent “may well have a bearing on

APP 61

NN A gp a I

532 4 FEDERAL SUPPLEMENT, 24 SERIES

whether the police should have known that

their words or actions were reasonably likely

to evoke an incriminating response”).

2 Fifth Amendment Right

[44] According to petitioner, his Fifth

Amendment right to remain silent was violat-

ed when Agent Rowland interrogated him at

6:00 p.m. in the Commonwealth Attorney's

lounge. The Supreme Court of Virginia held

that there was no violation of Miranda as a

result of the reinterrogation, and the trial

court, therefore, did not err in refusing to

suppress Weeks’ statements. Weeks 450

;

Mea

‘|

from the alleged improper Terry stop, and

not the legality of the Terry stop itself.

This distinction is frivolous. First, the

question of whether evidence should have

been suppressed obviously cannot be ad-

dressed without addressing the legality of

ae ett

search or seizure was introduced at his trial.”

Stone, 428 US. at 494, 96° S.Ct 3037.

Weeks’ claim is that the failure to suppress

all evidence derived from an improperly con-

ducted Terry stop deprived him of due pro-

cess and a fair trial Accordingly, Stone is

clearly applicable to Weeks’ claim.

The Magistrate Judge correctly found that

Stone applies to this claim. Because Weeks

has not shown that the state failed to provide

a full and fair opportunity for litigation, this

claim is barred from review on the merits.

WEEKS v. ANGELONE 533

Cie as 4 F Suppld 497 (ED.Va 1998)

made against me by, we can say, Mr. Weeks’

admirers.” Defense counsel] objected to this

testimony, and the objection was overruled

on the grounds that the defense “opened the

door” to this testimony. The Supreme Court

of Virginia held that defendant's assignment

of error on this issue was without merit

Weeks v. Commonwealth, 248 Va 460, 450

S.E.2d 379, 390 (1994).*

(46, 47] First, it must be noted that Dan-

jels’ statement was not hearsay. It was not

offered for the truth of the matter asserted,

but to explain why Danieis believed he need-

ed protection And to the extent that the

statement may have been prejudicial to

Weeks, the defense opened the door to the

violation of his right to a fair trial under the

ments to the United States Constitution.

merely stating what was in his mind at the

lowed to testify about the records of Weeks’

co-defendants in that case, over Weeks’ ob-

Pe.

Hit E

defendant's right to due process by denying

Hie

534 4 FEDERAL SUPPLEMENT, 24 SERIES

pus

For the reasons stated in the Report and

Recommendation, petitioner cannot show

that the state court decision was contrary two,

or an unreasonable application of, federal

law, as determined by the United States

two, are closely ~elated. Each of the claims

call into question whether the jury was ade-

quately informed on the effect it could grve to

mitigating evidence. More specifically, peti-

tioner maintains that the jury was mislead

into believing that, if they found the presence

of an aggravating factor, they did not have to

the possibility of parce, and if 00, under ee

what conditions must be met [sic] to receive

parole” The trial court responded by tell- If you find from the evidence that the

ing the jury, “You should impose such pun- Commonwealth has proved beyond a rea-

ishment as you feel is just under the evi- sonable doubt, either of the two alterna-

dence, and within the instructions of the “ves, and as to that alternative you are

Court. You are not to concern yourself with unanimous, then you may fix the punish-

what may happen afterwards.” Weeks ob- ment of the defendant at death; or, if you

jected to this response, proposing that the believe from all the evidence that the death

court instead instruct the jury to presume Penalty is not justified, then you shall fix

that their sentence would be carried out” the punishment of the defendant at life

The trial court overruled this objection On § ‘mprisonment....

direct appeal, the Supreme Court of Virginia If the Commonwealth has failed to prove

denied this issue as meritless. Weeks 450 beyond a reasonable doubt at least one of

S£2d at 390. the alternatives, then you shall fix the

37. The court noves that, in his petition Virginia. Accordingly. thi

er focuses on a different aspect of this claim: The pulaiy cities of tae teat ou aa ae

fact that he was denied the opportunity w pres- cannot be. addressed on the ments.

38. This is one of the miscellaneous evidence

pov venient te penance because <laims that was dismissed as meritiess without

it was never presented to the Supreme Court of _ * discussion by the Supreme Court of Virginia.

APP 64 “

fied” to mean that the defendant is not eligi-

ble for the death penalty. See Buchanan uv

Angelone, — US. ——, ——-——.,. 118

S.Ct. 757, 764-65, 139 L.Ed 2d 702 (1998)

(Breyer, J., dissenting).

{53] Weeks’ proposed jury instruction is

certainly a clearer statement of the law than

the instruction actually given to the jury.

tons on the jury's sentencing determination

must not preclude the jury from being able

to give effect to mitigating evidence. See

Buchanan, — U.S. at ——, 118 S.Ct. at 761.

S.Ct. 1190, 108 L.Ed.2d 316 (1990).

39. it should be noved that the precise question at

issue in this case was not raised before the Su-

- Out that the Supreme Court did not grant the

questions at issue before this court.

S.Ct at 762. The Court further held, in

pertinent part:

ow ere

536 4 FEDERAL SUPPLEMENT, 24 SERIES

Eighth Amendment requires the court to

instruct the jury on its obligation and author-

ity to consider mitigating evidence. /d 118

_ §.Ct at 761. ! .

Pursuant to the Supreme Court's

in Buchanan, this court has no choice but to

hold that the trial court did not err by giving

N. Claim XXVIII

To the extent that this claim consists of an

argument that the trial judge misapplied Va

Code § 19.2-264.5, that portion of the claim

is not reviewable here, as it is a question of

APP 66

- WEEKS v. ANGELONE 537

Che as 4 F Supp.td 497 (E.D.Ve. 1998)

tioner objects to this recommendation.

Weeks first points out that he has not yet

applied to the district court for a certificate

of appealability as to any issue. He further

maintains that, under 28 U.S.C. § 2253(c),

unsuccessful habeas petitioners are required

to request such certificates from the Court of

Appeals, and not the District Courts.

Petitioner's second argument points out

the dichotomy between the Fed.R.App.P.

22(b) and 28 US.C. § 2253(c) Rule 22(b)

states, in pertinent part:

In a habeas corpus proceeding in whu-h

the detention complained of arises out of

process issued by State court, appeal by

the applicant for the writ may not proceed

unless a district or a circuit judge issues a

certificate of appealability pursuant to sec-

tion 2253(c) of title 28, United States Code.

However, 28 U.S.C. § 2253(cX(1) states, in

pertinent part:

Unless a circuit justice or judge issues a

certificate of appealability, an appeal may

not be taken to the court of appeals from—

(A) the final order in a habeas corpus

Although both provisions were amended on

April 24, 1996, pursuant to the AEDPA, the

language of Rule 22(b) no longer tracks the

language of § 2253. Prior to the changes,

§ 2253 provided that “an appeal may not be

order in the habeas corpus proceeding, or a

amendment in 1996 took out the reference to

the district court judge who rendered the

order. However, the only change made to

Rule 22(b) was the replacement of the phrase

“certificate of probable cause” with the

phrase “certificate of appealability.”

Although the Fourth Circuit has not yet

addressed this issue, at least two Circuits

have, concluding that Congress did intend for

district court judges to have continued au-

thority to issue certificates of appealability,

under the Antiterrorism and Effective Death

Penalty Act (AEDPA). See, eg., Houchin v.

Zaveras, 107 F.3d 1465 (10th Cir.1997);

Hunter v. United States, 101 F.3d 1565,

1577-83 (11th Cir.1996). Both courts found

that the word “circuit” in § 2253 only modi-

fies “justice,” and not “judge,” which would

in turn include both district judges and cir-

cuit judges. Jd

This court, however, declines to decide this

issue, as it is not yet ripe. Until petitioner

applies to this court for a certificate of ap-

pealability, this court will not determine

whether it has the authority to issue such a

certificate.

Conclusion

The court, having examined the objections

to the Magistrate Judge’s Report, and having

reviewed the record and made de novo find-

ings with respect to the portions objected to,

does hereby ORDER that the petition be

DENIED AND DISMISSED in its entirety,

and that respondent’s Motion for Summary

Judgment be GRANTED.

APP 67 "

538 4 FEDERAL SUPPLEMENT, 2d SERIES

The Clerk shall mail a copy of this order to

counsel for petitioner and respondent.

It is so ORDERED.

tion of Virginia law to the facts of this case.

Under Rule 5&e) of the Federal Rules of

455 US. 45, 450, 102 S.Ct. 1162, 71 L.Ed2d

325 (1982). The Fourth Circuit Court of

Appeals has held that Rule 5%e) permits a

court to amend a judgment for three reasons:

(1) to accommodate an intervening change in

controlling law; (2) to account for new evi-

dence not available at trial; or (3) to correct

a clear error of law or prevent manifest

injustice. Equal Employment Opportunity

Comm'n v. Lockheed Martin Corp., Aero &

ng Systems, 116 F.3d 110, 112 (4th Cir.

The court finds that there has been no

error as to either the facts or the final deei-

sion to dismiss Weeks’ petition. Accordingly,

the court DENIES petitioner's motion to.

amend or alter the court's judgment. The

court will, however, clarify its reasons for

finding that Claim VII is without merit.

On June 7, 1993, petitioner filed his initial

motion for a bill of particulars. The trial .

court denied the request. On October 1,

1993, Weeks filed a renewed motion for a bill

of particulars, pursuant ‘to the provisions of

Virginia Code § 19.2-2662 This renewed

motion was filed simultaneously with two

pre-trial motions to suppress evidence. The

renewed motion specifically sought disclosure

cane Sone to Mb eepyeeation a>

(55] Section 192-2662 of the Virginia

Code provides a deadline for filing motions

or objections seeking the suppression of evi-

dence or the dismissal of a warrant, informa-

tion, or indictment. The statute also pro-

vides that “[tJo assist the defense in filing

such motions or objections in a timely man-

ner, the trial court shall, upon motion of the

defendant, direct the Commonwealth to file a

bill of particulars pursuant to § 19.2-230.”

Weeks made two distinct arguments support-

ing his claim that the trial court erred in

denying his motions for a bill of particulars.

Only one, however, is relevant to this motion

to amend or alter judgment: that the manda-

tory nature of VaCode § 19.2-266.2 creates

a liberty interest in receiving a bill of partic-

ulars, the denial of which violated his due

ne REP. ely Se Cnt Cate

In recommending that this claim is without

merit, the Magistrate Judge found that Va

Code § 19.2-2662 cannot be construed to

provide an absolute right to a detailed bill of

particulars in every case. This decision was

based on the fact that the statute does not

mandate that the bill of particulars contain

every detail, or any particular details of the

case, and if a defendant finds that a bill of

particulars is inadequate, he must show

“good cause” in order for the court to order

supplementation, The Magistrate Judge

concluded that the requirement of a bill of

particulars is thus, in essence, in the discre-

tion of the court.

APP 68

WEEKS v. ANGELONE 539

Che as 4 FSupp.td 497 (E.D.Va 1998)

debate that a bill of particulars under § 19.2-

230 is discretionary. Accordingly, it is rea-

ing a trial court to order a bill of particulars,

if, in its discretion, the trial court finds it

necessary to assist the defense in filing sup-

pression motions.

[56] However, even if a trial court must

order the government to file a bill of particu-

lars in all cases in which one is requested

pursuant to § 19.2-266.2, it is only a violation

of state law not to do so. It is not the

deprivation of a constitutional right, nor is it

a violation of any federal law. There is no

federal constitutional right to a bill of partic-

ulars. United States v. Bales, 813 F 2d 1289

(4th Cir.1987) (holding the granting of one is

1. See Quesinberry v. Commonwealth, 241 Va.

364, 402 S.E.2d .18 (1991) (holding that wheth-

er the Commonwealth is required to file a bill of

paruculars is a matter within the discretion of

the wial court); Smckler v. Commormwealth, 241

Va 482, 404 SE.2d 227 (1991) (holding that

when an indictment is sufficient w give the ac-

cused “notice of the nacure and character of the

offense charged so he can make his defense” a

bill of paruculars is not required).

2. Under prior case law. a prison inmate only had

to point to mandatory language and substanuve

predicates, in a state statute or regulation per-

taining to prisoners, to establish that the state

within the sound discretion of the trial

jog.

Petitioner does not deny that there is no

general constitutional right to a bill of partic-

ulars. He instead argues that the language

of § 19.2-266.2 creates a liberty interest that

tioner, he had a vested right to receive a bill

of particulars related to suppression “which

cannot be deprived absent due process.”

Pet's Br. at 7. This claim is wholly without

been overruled in large part by a recent

Supreme Court decision. See Sandin v.

Conner, 515 US. 472, 115 S.Ct. 2293, 132

est. See Hewitt v. Helms, 459 U.S. 460, 470-72,

103 S.Ct 864, 74 L_Ed.2d 675 (1983).

ayn

At ¢

ite

;

It is so ORDERED.

Thomas Lee ROYAL, Jr., Petitioner,

J.D. NETHERLAND, Warden’,

Respondent.

Civil Action No. 3:96CV956.

United States District Court,

E.D. Virginia,

Rick : Divisi

May 5, 1998.

After his conviction for capital murder

and sentence of death were affirmed on di-

rect appeal, 250 Va 110, 458 S.E.2d 575, and

his state petition for writ of habeas corpus

was dismissed, petitioner sought federal ha-

beas corpus relief. Respondent moved to

dismiss, and the District Court, Merhige, J.,

held that: (1) petition, which was filed after

effective date of Antiterrorism and Effective

L.Ed.2d 494 (1985). What petitioner seems to be

arguing is that the state statute has created a

liberty unterest provected by substantive due pro-

cess.

4. Moreover. even if the wial court was in error.

peuuoner cannot meet the Brech: harmless error

sandard. Brecht v. Abrahamson, 507 U.S. 619.

113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (holding

that a petitioner is not entided two habeas relief

based on a tral error unless he can establish that

i had a “substanual and injurious effect or influ-

Death Penalty Act (AEDPA) was governed

by substantive changes to standards of re,

view effected by ADEPA; (2) death sentence.

did not violate individualized sentencing pro

_ cedures required by Federal Constitution; (3)

counsel was not ineffective in failing to asser,

defenses based on intoxication, lack of intent, :

or claim that defendant was not “trigger.-

man”; (4) entry of guilty plea resulted in

HEL

fit

: |

aul

‘ati

APP 70

450 S.E.2d 379

(Cite as: 248 Va. 460, 450 S.E.2d 379)

Lonnie WEEKS, Jr.,

COMMONWEALTH of Virginia.

Record No. 940335.

Supreme Court of Virginia.

Nov. 4, 1994.

Defendant was convicted in the Circuit Court,

Prince William County, Herman A. Whisenant, Jr.,

J., of grand larceny and firearms charges, and

capital murder, and was sentenced to death. On

automatic death penalty review, the Supreme

Court, Compton, J., held that: (1) two-hour

detention while defendant was being questioned by

police officers occurred pursuant to defendant's

consent and defendant's questioning after prior

invocation of right to remain silent did not violate

his Fifth Amendment rights; (2) trial court did not

err in refusing to dismiss juror for cause; (3)

victim impact testimony is relevant to punishment

in capital murder prosecution; and (4) death

sentence was appropriate under the circumstances.

Affirmed.

[1] CRIMINAL LAW k1134(3)

110k1134(3)

On review of death sentence, court considers not

only trial errors enumerated by defendant but also

whether sentence of death was imposed under

influence of passion, prejudice, or any other

arbitrary factor, and whether sentence is excessive

or disproportionate to penalty imposed in similar

cases. Code 1950, § 17-110.1, subd. A.

[2] CRIMINAL LAW k1130(5)

110k1130(5)

Supreme Court would not consider assigned errors

which defendant had not briefed or argued.

[3] CRIMINAL LAW k412(4)

110k412(4)

Defendant's two-hour detention while being

questioned by police officers did not violate

Fourth Amendment; defendant consented to

detention and generally agreed to cooperate with

police, he consented to initial “pat down,”

acquiesced to questioning, accepted invitation to

enter police car, agreed not to go to service

station for food and drink, acquiesced to second

and third “pat down" of trouser pockets and

agreed to be interviewed alone in motel room by

officer. U.S.C.A. Const.Amend. 4.

[4] CRIMINAL LAW k412.1(1)

110k412.1(1)

Defendant's prior election to remain silent was

scrupulously honored and thus statements to

police officer were admissible; defendant was

carefully advised before initial interview of his

right to remain silent and there was immediate

cessation of interview when defendant exercised

right to silence, ten hours had passed between

first and second interviews during which time

defendant confessed and even though fresh set of

Miranda warnings was not given before second

interview, defendant responded affirmatively

when asked whether he remembered "rights" read

to him earlier, and he readily and freely discussed

matter with investigator and did not revoke valid

waiver. U.S.C.A. Const.Amend. 5.

[5] CRIMINAL LAW k412.1(4)

110k412.1(4)

In determining whether continued questioning is

appropriate after initial refusal to answer

questions, factors include whether defendant was

carefully advised before initial interrogation that

he was under no obligation to answer any

questions and could remain silent if he wished,

whether there was immediate cessation of initial

interrogation and no attempt to persuade

defendant to reconsider position, whether police

resumed questioning only after passage of

significant period of time, whether Miranda

warnings preceded second questioning, and

whether second interrogation was limited to

crime that had not been subject of earlier

interrogation. U.S.C.A. Const.Amend. 5.

APP 71

[6] CRIMINAL LAW k412.1(4)

110k412.1(4)

Mere fact that second interview, after defendant's

prior election to remain silent, involves some of

same subject matter discussed during initial

interview did not render confession

constitutionally invalid; defendant was advised of

ae eee ee ne

and there was no effort to persuade defendant

against his will after he initially invoked right to

silence by repeating questions about same subject

matter covered earlier. U.S.C.A. Const.Amend. 5.

[7] CRIMINAL LAW k627.6(6)

110k627.6(6)

Denial of defendant's motion seeking copies of any

criminal records pertaining to himself, codefendant

and probable witnesses who were nonresidents did

not prejudice defendant's right to fairly depend

himself; many of those named in motion did not

testify at trial, and trial court had already ordered

prosecutor to furnish defendant before trial with

criminal history information concerning any

witness to be called by prosecutor at any hearing in

or trial of case. Code 1950, § 19.2-389.

[8] CRIMINAL LAW k897(1)

110k897(1)

Defendant procedurally defaulted on issue trial

court's ruling on motion for scientific

investigation; trial court never denied motion but

instead stated it would entertain motion later upon

defense showing that defendant had unsuccessfully

sought results of testing that should probably

already had been conducted by division of forensic

sciences, and defense counsel did not object to

ruling but instead withdrew motion as not being

timely. Sup.Ct.Rules, Rule 5:25.

{9} COSTS k302.2(2)

102k302.2(2)

Defendant charged with capital murder is not

entitled to ex parte hearing on his motion for

expert assistance.

{10} INDICTMENT AND INFORMATION

k121.1(7)

210k121.1(7)

Where no challenge was made to sufficiency of

indictment, bill of particulars was not required.

{11} JURY k131(13)

230k131(13)

Defendant has no right to individual voir dire.

{12] JURY k131(15.1)

230k131(15.1)

Trial court did not abuse its discretion in

disallowing questions during voir dire because

questions were improper, vague, argumentative

or nonspecific.

{13} JURY k131(8)

230k 131(8)

In capital murder case involving white victim and

black accused, trial court did not abuse its

discretion in manner in which it questioned

prospective jurors on subject of potential racial

bias.

[14] CRIMINAL LAW k1158(3)

110k1158(3)

On appellate review, Supreme Court must give

deference to trial court's decision whether to

exclude or retain prospective juror because trial

court “sees and hears the juror"; trial court's

decision will be disturbed only upon showing of

manifest error.

[15] JURY k97(2)

230k97(2)

In case in which defendant was accused of fatally

shooting police officer, trial court did not commit

manifest error in refusing to dismiss for cause

juror who answered "I think so” in response to

question as to whether he could be fair and

impartial and set aside anything he might have

heard in the past and be fair to both

Commonwealth and accused, despite fact that

juror had relative who was police officer and

killed in the line of duty.

[16] CRIMINAL LAW k1043(2)

110k1043(2)

Defendant could not challenge on appeal

admissibility of victim impact evidence by

nonfamily members closely associated with

victim where objection at trial did not distinguish

between testimony by family members and

testimony from other sources. Sup.Ct.Rules,

Rule 5:25.

APP 72

[17] CRIMINAL LAW k1208.1(6)

110k1208.1(6)

Victim impact testimony is relevant to punishment

in capital murder prosecution in Virginia.

[18] CRIMINAL LAW k419(3)

110k419(3)

Hearsay rule does not operate to exclude evidence

of statement offered for mere purpose of

explaining conduct of person to whom it was

made, particularly when evidence was not offered

for purpose of establishing guilt or innocence of

accused but for purpose of showing reason for

police officer's action in arresting him.

[19] CRIMINAL LAW k419(3)

110k419(3)

Police officer's statement that codefendant had

stated to another investigator that defendant "did in

fact shoot the trooper," was not inadmissible

hearsay where statement was offered to explain

officer's action in arresting defendant 12 minutes

after defendant was considered not to be in

custody, rather than to prove that defendant had in

fact shot trooper.

[20] HOMICIDE k269

203k269

Whether defendant is guilty of premeditated killing

of victim is usually a jury question.

[21] HOMICIDE k14(2)

203k14(2)

Intention to kill need not exist for any specified

length of time prior to actual killing; design to kill

may be formed only a moment before fatal act is

committed provided the accused had time to think

and did intend to kill.

[22] HOMICIDE k156(1)

203k 156(1)

In deciding premeditation element of capital

murder, jury may consider among other things

brutality of attack and whether more than one shot

was fired.

[23] HOMICIDE k232

203k232

Evidence supported element of premeditation

required for offense of capital murder; defendant

was on probation, riding in stolen vehicle and

possessing weapon shown to have been used in

previous murder, defendant shot trooper at

virtually point-blank range at least six times in

order to avoid arrest, and location of bullet

wounds indicated that trooper may have been

fired upon while lying on pavement.

[24] HOMICIDE k357(11)

203k357(11) :

Defendant's conduct in committing offense

involved depravity of mind and or aggravated

battery as required for "vileness” predicate for

death sentence; record supported conclusion that

death sentence was appropriate for defendant

convicted of shooting of trooper six times from

close range with high-powered revolver, two

shots being independently fatal, officer posed no

threat to defendant in connection with routine

traffic stop, trooper died with service revolver

still in holster, and defendant left and returned to

scene, falsely claiming he attempted to render

assistance to victim when real purpose was to

retrieve incriminating evidence.

[25] HOMICIDE k357(8)

203k357(8)

Imposition of death sentence for defendant who

repeatedly shot trooper at close range in attempt

to avoid arrest was not excessive or

disproportionate to offense considering

punishment generally imposed for similar

conduct. Code 1950, § 17-110.1, subd. C, par. 2.

APP 73

**382 William J. Baker, Daniel J. Moricsette,

Manassas (DePolo & Morissette, on brief), for

appellant.

Robert H. Anderson, III, Asst. Atty. Gen.

(James S. Gilmore, Ill, Atty. Gen., on brief),

for appellee.

Present: All the Justices.

COMPTON, Justice.

On February 24, 1993, Virginia State Trooper

Jose M. Cavazos was shot and killed by

defendant Lonnie Weeks, sr, in Prince

William County. Subsequently, defendant was

indicted for the felonious, willful, deliberate,

and premeditated homicide of the law

enforcement officer, when such killing was for

the purpose of interfering with the performance

of the trooper's official duties.- Code § 18.2-

31(6). Defendant also was charged with grand

larceny of a motor vehicle, Code § 18.2-95,

and use of a firearm in the commission of

murder, Cede § 18.2-53.1.

Following several pretrial hearings, including

a hearing on defendant's motion to suppress his

confession, defendant was tried by a single

jury during five days in October 1993. As the

trial began, Jefendant pled guilty to the grand

larceny and firearm charges. The court

subsequently sentenced defendant to

imprisonment for ten-year and three-year terms

respectively on those charges.

The jury found the defendant guilty of the

capital murder charge and, during the second

phase of the bifurcated capital proceeding, the

jury fixed the defendant's punishment at death

for the capital offense based upon the vileness

predicate of the capital murder sentencing

statute. Code § 19.2-264.4.

Later, the trial court considered a probation

officer's report and heard testimony from the

officer relevant to punishment. The court

then sentenced the defendant to death for the

capital murder.

{1] The death sentence is before us for

automatic review under Code § 17- 110.1(A),

see Rule 5:22. As required by statute, we

enumerated by the defendant but also whether

the sentence of death was imposed under the

influence of passion, prejudice, or any other

arbitrary factor, and whether the sentence is

excessive or disproportionate to the penalty

imposed in similar cases. Code § 17-

110.1(C).

There is no conflict about any relevant fact in

the case. In early February 1993, defendant,

who was age 20, a North Carolina resident,

and on probation for a 1992 drug conviction,

participated in the burglary of a residence in

the Fayetteville, North Carolina area. During

the course of that crime, defendant obtained a

set of keys to a 1987 Volkswagen Jetta

automobile parked at the residence, and stole

the vehicle. Later that month, defendant

drove the vehicle to Washington, D.C.,

intending to sell it or trade it for drugs.

Defendant carried in the vehicle a Glock

Model 17, nine millimeter, semi- automatic

According to the testimony, the bullets were

designed for police use, not target practice or

hunting; this type of bullet is referred to as a

"“man-stopper.”

During the late evening of February 23,

defendant was riding as a passenger in the

vehicle being driven by his uncle, 21-year-old

Lewis J. Dukes, Jr., a resident of the District

of Columbia. The pair was travelling

APP 74

**383 en route from Washington to Richmond

southbound on Interstate Route 95.

Around midnight, Trooper Cavazos was operating

radar from his marked police vehicle parked in the

The Volkswagen driven by Dukes passed the

trooper's position at a high rate of speed. The

officer activated his vehicle’s emergency lights and

proceeded to chase the vehicle occupied by

defendant. After travelling a brief distance, and

passing other vehicles by driving on the right

shoulder of the highway, Dukes brought the car to

a stop on the Dale City exit ramp, in a dark, remote

area.

The trooper pulled his patrol car to a stop behind

the Volkswagen, which he approached on foot on

the driver's side. Upon the officer's request, Dukes

alighted and was standing toward the left rear of

the Volkswagen when the trooper asked defendant

to step out of the vehicle.

Defendant complied with the officer's request and

alighted on the right side of the vehicle as the

trooper was near the left side. As defendant left

the vehicle he was carrying the fully loaded pistol.

He then fired at least six bullets at the officer, two

of which entered his body beside the right and left

shoulder straps of the protective vest the trooper

was wearing. The officer was immediately

rendered unconscious and fell to the pavement,

dying within minutes at the scene with his police

weapon in its “snapped” holster.

Defendant, with Dukes as a passenger, then drove

the Volkswagen from the scene and parked it on

the lot of a nearby service station. Defendant

returned to the scene of the crime on foot and

retrieved Dukes’ District of Columbia driver's

license that had been dropped on the pavement.

Defendant rejoined Dukes, and they were found by

police shortly thereafter in the parking lot of a

nearby motel.

[2] On appeal, defendant assigns 47 alleged errors

committed by the trial court. The defendant has

not briefed or argued ten of those assigned errors

(Nos. 4, 5, 6, 7, 8, 17, 26, 31, 38, and 39); hence

we will not consider them. Jenkins vv.

Commonwealth, 244 Va. 445, 451, 423 S.E.2d

360, 364 (1992), cert. denied, 507 U.S. 1036, 113

$.Ct. 1862, 123 L.Ed.2d 483 (1993). In addition,

defendant effectively presents no argument in

support of five of those alleged errors (Nos. 16,

34, 44, 45, and 46). Typical of the argument in

support of those five is the following

conclusional statement on brief in support of No.

45: “This error of the court violated the

defendant's rights under the Fifth, Sixth, Eighth

and Fourteenth Amendments to the Constitution

of the United States and Article |, §§ 8, 9 and 11

of the Constitution of Virginia” We have

considered these so-called arguments and find no

merit in any of the five.

The remaining assignments of error emphasized

by defendant present questions dealing with

defendant's detention before his arrest, his

confession, requests for a scientific investigation

and expert assistance in the fields of ballistics

and pathology, the seating of one juror who was

challenged for cause, and use during the trial’s

penalty phase of victim impact evidence.

First, defendant contends that he was detained

for approximately two hours before he was

arrested and that this constituted an illegal arrest

without probable cause. Because the arrest was

illegal, defendant argues, the trial court erred by

admitting in evidence defendant's statements to

police that were the product of the illegal arrest.

The facts relevant to this issue were presented

both at a pretrial suppression hearing and during

the trial. The evidence showed that Prince

William County police officer James C. Virgil,

Jr., was dispatched to the scene of the crime

about 12:53 a.m. on February 24, and began

searching the immediate area for possible

suspects. Shortly, Virgil saw defendant and

Dukes walking in the rear parking lot of the motel

located about one-half mile from the scene. The

men, who were walking close together toward

Virgil's marked police car, “turned back around

and started to walk away” from the car. Then the

pair "started to split apart. One subject was going

to the left and one going to the right.". When the

officer was 15-20 feet from them with the

vehicle's headlights and spotlight operating, he

stopped the vehicle

APP 75

point, the men “immediately”

hands up in the air” and one said “Don't shoot.”

Virgil then said, “Police. Don't move. Can I talk

to you all?”

Virgil approached the men and said, “Is it okay if I

pat you down for my safety?” Defendant said "go

ahead.” Virgil felt the outside of their clothing and

weather. “The cfc began aching “jon beni

When the officer asked, "What are you all doing

here?” defendant said they had been “dropped off”

at the mote! parking lot by a relative several hours

earlier to await “two girls from Washington, D.C.”

While there, defendant said, "We heard the shots.”

he ran “to where the shots came from” and saw a

State Trooper on the ground who had been shot.

Defendant said that he “ran over to the trooper and

he rolled the trooper over to help him." Defendant

stated that as other police officers arrived at the

scene, he returned to the motel parking lot.

Virgil then asked defendant if the pair “would

mind” remaining at the motel to await an

investigator to interview them, inasmuch as they

were the only persons who had heard the shots and

defendant had been to the scene. Defendant

agreed, stating “that's fine.”

In a few minutes, Prince William County police

officer Lyle Denny arrived to assist Virgil. Denny

made "a pat down” of defendant and removed from

defendant's left trouser pocket “a group of

Volkswagen keys." After examining the keys,

Denny returned the keys to the pocket.

Because of the cold weather and the fact that

defendant was not wearing a jacket or sweater,

Virgil asked the pair whether they would like to sit

in his police car. Defendant replied, “I thought

you'd never ask. Sure.” The two men entered the

telephone calls. After making the calls,

defendant asked “if he could go get some food

and something to drink up at” the service station.

About the same time, Virgil learned from the

police radio that county officers had located “a

suspicious vehicle” at the service station, about

A few seconds later, Virgil learned from another

About 2:45 a.m., after defendant had been with

Officer Virgil for about two hours, state police

officers arrived to question defendant and Dukes.

Near 3:00 a.m., state police Special Agent J.K.

Rowland met defendant in the motel lobby.

to leave ot Ghat tine,” conducted on interview

APP 76

#385 with defendant in private in one of the

motel rooms.

[3] We do not agree with defendant's contention

by Officers Virgil and Denny violated his Fourth

Amendment rights under Terry v. Ohio, 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its

progeny. Terry is not implicated here because, as

the trial court found from the undisputed facts,

defendant consented to the detention and generally

agreed to cooperate with the police. Just as a

defendant may consent to a search, he may also

consent to what would otherwise amount to a

seizure of his person. Limonja v. Commonwealth,

8 Va.App. 532, 539-41, 383 S.E.2d 476, 480-82

(1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1925,

109 L.Ed.2d 288 (1990).

At every step in the questioning during the whole

two-hour period, the defendant readily agreed to

the detention. He consented to the initial “pat

down,” acquiesced to questioning, accepted the

invitation to enter the police car, agreed not to go

to the service station for food and drink,

acquiesc | to a second and third “pat down” of his

trouser pockets, and agreed to be interviewed alone

in the motel room by Rowland. “The Fourth

Amendment proscribes unreasonable searches and

seizures, it does not proscribe voluntary

ccoperatior." Florida v. Bostick, 501 U.S. 429,

43° «1. S.Ct. 2382, 2389, 115 L.Ed2d 389

(199) >.

[4] Next, defendant contends that the trial court

erred in denying his motion to suppress the

confession made to Special Agent Rowland

because the authorities failed to scrupulously

honor his request to remain silent.

The facts relevant to this issue show that as

Rowland questioned defendant in the motel room,

Rowland became “more and more suspicious” of

defendant. Even though defendant “was free to

leave” at that point, Rowland advised defendant of

his constitutional rights according to Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966), as a precaution at 7:40 a.m. Defendant

then exercised his right to remain silent and wrote,

“Do not want to discuss case any further,” on the

"Advice of Rights” form that he signed. Rowland

At 7:50 a.m., Rowland was advised by another

investigator that Dukes had just stated that

defendant shot the trooper. Rowland arrested

defendant at 7:52 a.m.

Subsequently, defendant was taken before a

magistrate and then to the Adult Detention Center

in Manassas. Later that morning, classification

officers in the jail routinely questioned defendant

about his physical and mental state, no attempt

was made to elicit information about the crime.

During the interview, defendant indicated he was

considering suicide because he had shot the

trooper. Defendant also voluntarily wrote a letter

to a jail official admitting the killing and

expressing remorse. Defendant does not contest

either of these admissions but attacks the

constitutional validity of the following interview.

Near 6:00 p.m. on February 24, defendant was

brought to the lounge of the local prosecutor's

office where Rowland again interviewed him;

additional information had been developed by the

police during the day between the termination of

the first interview and the beginning of this

second interview. Rowland asked defendant, "Do

you remember the rights I read to you earlier

today?” to which defendant responded

affirmatively. Rowland proceeded "to summarize

the investigation through the course of the day's

events to that point in time.”

Among other things, Rowland told defendant

that an eyewitness to the shooting had made a

positive identification of him as the assailant. A

witness actually had identified defendant as a

person she saw at the scene after the homicide,

but she had not witnessed the shooting. At the

conclusion of Rowland’s summary, he said to

defendant, “This is your opportunity to provide

your explanation as to what happened at the

shooting scene.” Defendant responded, “Yes, |

was packing.” The officer knew that “packing”

meant “carrying a firearm.”

The defendant then confessed to the trooper's

murder. Defendant stated that when the trooper

asked him to get out of the

APP 77

**386 Volkswagen, he picked up the pistol and

“thought about throwing it away.” Instead, he saw

the trooper put his hand down toward his service

revolver. Defendant said he then “panicked” and

shot the victim “several times rapidly." Defendant

stated that he drove, with Dukes as a passenger, to

the service station, placing the pistol under the

front floor mat of the Volkswagen. This interview

lasted about one hour during which defendant

right to remain silent or any other constitutional

right.

In support of his attack on the validity of the

confession, defendant notes that he made no

request to speak with the police after he exercised

his right to silence at 7:40 a.m. Instead, he points

out, he was held in jail and transported to the

prosecutor's office about ten hours later. He notes

that at the time of the interview he was restrained

in handcuffs and leg irons, being questioned by the

same officer to whom he previously indicated a

desire to remain silent. Defendant also points out

that he was not “read his rights” again, merely

“asked if he understood the rights read to him

previously." Thus, defendant contends, the

confession later introduced at trial violated his

constitutional rights. We do not agree.

In Miranda, the Supreme Court stated that, once

the required warnings have been given a person

before a custodial interrogation, the interrogation

must cease if the individual, “at any time prior to

or during questioning,” expresses a desire to

remain silent. 384 U.S. at 474, 86 S.Ct. at 1627.

At this point, the Court said, the individual has

shown an intention “to exercise his Fifth

Amendment privilege; any statement taken after

the person invokes his privilege cannot be other

than the product of compulsion, subtle or

otherwise.” Id.

Subsequently, in discussing the scope of the

foregoing Miranda passage, the Supreme Court

said: “Clearly, therefore, neither this passage nor

any other passage in the Miranda opinion can

sensibly be read to create a per se proscription of

indefinite duration upon any further questioning by

Lamb v. Commonwealth, 217 Va. 307, 312, 227

S.E.2d 737, 741 (1976).

We will assume Rowland's preliminary

[5S] Suggesting a case-by-case approach to

determine that continued questioning was

appropriate after an initial refusal to answer

questions, the Mosley court mentioned five

factors that related to the evidence in that case.

First, whether defendant “was carefully advised”

before the initial interrogation “that he was under

no obligation to answer any questions and could

remain silent if he wished.” Id. at 104, 96 S.Ct. at

significant period of time.” Id. at 106, 96 S.Ct. at

327. Fourth, whether Miranda warnings preceded

the second questioning. Id. at 104. 96 S.Ct. at

326-27. Fifth, whether the second interrogation

was limited to a crime that had not been the

subject of the earlier interrogation. Id.

Clearly, when those factors are applied to the

any police officer on any subject, once the person

in custody has indicated a desire to remain silent.”

Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct.

APP 78

Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct.

1755, 1757, 60 L.Ed.2d 286 (1979); Washington

v. Commonwealth, 228 Va. 535, 548, 323 S.E.2d

577, 586 (1984), cert. denied, 471 U.S. 1111, 105

S.Ct. 2347, 85 L.Ed.2d 863 (1985).

[6] Finally, the mere fact that the second interview

involved some of the same subject matter

discussed during the initial interview does not

render the confession constitutionally invalid.

United States v. House, 939 F.2d 659, 662 (8th

Cir.1991). Defendant was advised of the new facts

that had been developed by the investigators, and

there was no effort to persuade defendant against

his will after he initially invoked his right to

silence by repeating questions about the same

subject matter covered earlier. Hence, there was no

violation of Miranda under that prong of Mosley as

a result of the reinterrogation. See Jackson v.

Wyrick, 730 F.2d 1177, 1180 (8th Cir.), cert.

denied, 469 U.S. 849, 105 S.Ct. 167, 83 L.Ed.2d

102 (1984).

Next, the defendant complains about the denial of

two pretrial motions, which defendant wished to be

considered by the court ex parte out of the

prosecutor's presence.

[7] First, defendant filed a paper entitled "Ex Parte

Motion for Disclosure of Records Maintained by

the Central Criminal Records Exchange.” In the

motion, defendant sought copies of any criminal

records pertaining to a number of individuals,

including himself and Dukes, and certain North

Carolina residents likely to be called as witnesses

by the prosecutor. Over defendant's objection, the

trial court permitted the prosecutor to attend the

hearing on the motion and to argue against

granting it. Following the hearing, the court

denied the motion.

Code § 19.2-389 is codified among the statutes

dealing with the duties and authority of the

Exchange (CCRE), a separate division within the

Department of State Police and, with a few

agency of the Commonwealth.” Code § 19.2-

387(A). Section 19.2-389 provides, in part, that

upon “an ex parte motion of a defendant in a

felony case and upon the showing that the records

requested may be relevant to such case, the court

shall enter an order" requiring the CCRE to

furnish the defendant copies of any records of

persons designated in the order on whom a report

has been made to the CCRE. The statute is silent

about the nature of any hearing on such motion.

We will assume, but not decide, that the statute

is applicable to discovery in felony cases, that the

defendant is entitled to be heard ex parte, and that

the trial court erred in denying his motion under

the statute. Nevertheless, we hold that the court

did not commit reversible error because nothing

in the record suggests that the trial court's rulings

prejudiced defendant's right to fairly defend

himself. See George v. Commonwealth, 242 Va.

264, 281, 411 S.E.2d 12, 23 (1991), cert. denied,

$03 U.S. 973, 112 S.Ct. 1591, 118 L.Ed.2d 308

(1992).

Many of the persons named in the motion,

including Dukes, did not testify at trial. In

addition, the trial court had already ordered the

prosecutor to furnish defendant before trial

criminal history information concerning any

witness to be called by the prosecutor “at any

hearing in or trial of this case." Therefore, the

“ex parte motion” was redundant.

[8] Second, defendant filed a paper labelled

“Motion For Scientific Investigation, Ex Parte.”

Relying upon Code § 2.1-434.11, defendant

moved the court to order a scientific investigation

into certain factors surrounding the victim's

death, including whether death was instantaneous

as a result of the fatal wounds.

Code § 2.1-434.11 is codified among the statutes

establishing a Division of Forensic

APP 79

**388 Science within the State Department of

General Services. That statute authorizes an

attorney for an accused to request a scientific

investigation, if the attorney believes in good faith

that such investigation may be relevant to the

criminal charge. The statute provides that the

“motion shall be heard ex parte" and, if satisfied as

to the correctness of the attorney's representation,

the court shall order the investigation to be

performed by the Division.

We do not reach the merits of the defendant's

complaint because the issue has been procedurally

At the hearing on the motion, with the prosecutor

present, the trial court said that it would entertain

the motion later upon defendant's showing that he

had unsuccessfully sought the results of such

testing that probably already had been conducted

by the Division. Defense counsel did not object to

this ruling; instead, he withdrew the motion as

being not "timely." Because defendant acquiesced

in the trial court's ruling, he may not challenge it

on appeal. Rule 5:25.

Associated with defendant's claim of error relating

to the request for a scientific investigation is the

complaint that the trial court erred by denying his

request to be heard ex parte on his motion for

expert assistance in the fields of pathology and

ballistics, and for denial of the request for

appointment of such experts. Defendant asked that

his motion for funding for expert assistance “be

treated under the same procedure as required by

Title 18 USC 3006A(e) in Federal Court." There

is NO merit to this contention.

[9] We already have decided that a defendant

charged with capital murder is not entitled to an ex

parte hearing on his motion for expert assistance.

Ramdass v. Commonwealth, 246 Va. 413, 422, 437

$.E.2d 566, 571 (1993), rev'd on other grounds sub

nom. Ramdass v. Virginia, --- U.S. ----, 114 S.Ct.

270!. 129 L.Ed.2d 830 (1994). In addition, we

specifically have refused to apply the federal

Statute to state capital murder prosecutions. Id.

[10] Before moving to the last two issues

emphasized by defendant, we will comment on

other matters raised before trial that are the subject

of assignments of error. These issues warrant only

[1 1}{12)[13] Next, defendant raises several

issues dealing with juror voir dire. He contends

the trial court erred in denying individual voir

dire and in refusing to allow a number of

questions that he submitted to be asked of the

prospective jurors. A defendant has no right to

individual voir dire. Stewart v. Commonwealth,

245 Va. 222, 229, 427 S.E.2d 394, 399, cert.

denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d

105 (1993). Also, the trial court did not abuse its

discretion in disallowing the questions because

they were either improper, vague, argumentative,

or nonspecific. Buchanan v. Commonwealth,

238 Va. 389, 402, 384 S.E.2d 757, 765 (1989),

cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107

L.Ed.2d 963 (1990). And, contrary to defendant's

argument, the trial court did not abuse its

discretion, in this case of a white victim and a

black accused, in the manner which it questioned

the prospective jurors on the subject of potential

racial bias. See Turner v. Murray, 476 U.S. 28,

37, 106 S.Ct. 1683, 1688-89, 90 L.Ed.2d 27

(1986) (trial judge retains discretion as to form

and number of questions on issue of racial bias

when capital murder defendant accused of

interracial crime).

APP 80

**389 Also, defendant argues the trial court

erred in denying his challenge for cause of juror

Frederick Pama. Responding to the question

whether he knew personally anyone who was the

victim of a violent crime, Pama said, "About three

years ago ... my wife's first cousin, who was very

close to us, got killed. He was a police officer,

from a drug shootout, and that affects me.”

Pama initially had answered many questions by

the trial court and counsel which reflected his

ability to serve as an impartial juror. After he

answered the foregoing question, he responded to

questions by the prosecutor and said he could set

aside any opinion he had formed about the case

and could render a decision based solely on the

law, and evidence produced at trial. Finally, when

asked again by the prosecutor whether he "could

be fair and impartial and set aside anything” he

may have heard in the past and whether he could

“be fair in this matter, both to the Commonwealth

and to the accused,” Pama answered, “! think so.”

When denying defendant's motion to strike Pama,

the trial court stated that “the proposed juror did

not say that it would have an impact. He said, the

way I understood his answer, he was not certain if

it would have an impact, but at this time it would

not.”

[14] Upon appellate review, we must give

deference to the trial court's decision whether to

exclude or retain a prospective juror because the

trial court “sees and hears the juror;" accordingly,

the trial court's decision will be disturbed only

upon a showing of manifest error. Eaton v.

Commonwealth, 240 Va. 236, 246, 397 S.E.2d

385, 391 (1990), cert. denied, 502 U.S. 824, 112

S.Ct. 88, 116 L.Ed2d 60 (1991) (quoting

Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct.

844, 853, 83 L.Ed2d 841 (1985)). Accord

George, 242 Va. at 276, 411

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