# Appendix — Weeks v. Angelone

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 225

## Text

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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,

v.

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

ee

176 FEDERAL REPORTER, 3d SERIES

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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

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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 ‘

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e Habeas Corpus 406 . ‘ i" @ far
Alleged ineffective assistance of coun-
sel for petitioner on his state habeas peti-

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defendant's default of. claims 4@F guise of due process clause. US.C.A
not to brief before that ConstAmends. 6, 14.
on

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,

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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-

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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

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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

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[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

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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

of

APP 8

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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)

-
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:.. 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

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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

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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

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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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interrogation. ’In this case, Agent -Row-
his right to remain silat prior to the

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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)

aw

2 a
, |
int
ai: (EE
ai: &
a: UE g
LS ae s [Fz oa
te a
Bi: ceil RB
ne # eH
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4 “TB
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Te
if
g
8
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
i:
+
i

§
u
itl

i
f
f

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,

=o

Ss -

att
i
eH
i

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

i:
i
ra

it
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

Di

federal cou.ts to give even greater deference
sented in these petitions. See § 107(a).

Te oe ae

ve

ee

i
cruel
Sgast§ :

i

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

F
:
:
:

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)

8
Hi
cffbey
i}
HH

e
&
5
:
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#8

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

nn

(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).

i
ef

ayn
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=

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It is so ORDERED.

Thomas Lee ROYAL, Jr., Petitioner,
v.

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

7.
i
:
:
z

APP 70

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

450 S.E.2d 379

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

Lonnie WEEKS, Jr.,
v.
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 S.E.2d at 19 (juror
not automatically disqualified on account of fact
son had served as pallbearer at victim's funeral).

[15] We find no manifest error in the court's
refusal to dismiss Pama for cause. From a review
of Pama's entire voir dire, we conclude that the
trial court was justified in finding that Pama could
be impartial during the trial. Our duty to defer to
the trial judge on this subject is illustrated by
Pama’'s final answer, "I think so,” which the trial

judge, not this Court, heard. The juror’s emphasis
on “so” in that answer conveys an entirely
different meaning than if the emphasis had been
on “think.” On appeal, we must presume he
emphasized “so.”

Finally, defendant contends the trial court erred
in admitting “victim impact testimony” during the
penalty phase of the trial. The victim's widow, as
well as state troopers who worked with the
deceased, testified about the profound effect the
killing had on his surviving family and those with
whom he worked.

[16] On appeal, defendant mounts a two-prong
argument: so-called “victim impact evidence” is
not relevant in Virginia to the jury's sentencing
decision in a capital case, and, even if it is, the
evidence should be limited to the effect upon
family members only and not to the effect upon
nonfamily members closely associated with the
victim. We will not address the latter contention
because, in the trial court, the defendant did not
distinguish between testimony by family
members and testimony from other sources.
Therefore, the defendant may not challenge on
appeal the admissibility of the troopers’
testimony. Rule 5:25.

[17] Addressing the former contention, we hold
that victim impact testimony is relevant to
punishment in a capital murder prosecution in
Virginia, and that the triai court did not err in
admitting the testimony in this case. In Payne v.
Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991), the Supreme Court
authorized the use of such testimony. The Court
said: "A State may legitimately conclude that
evidence about the victim and about the impact of
the murder on the victim's family is relevant to
the jury's decision as to whether or not the death
penalty should be imposed.” Id. at 827, 111 S.Ct.
at 2609.

Defendant's reliance on Dingus v.
Commonwealth, 153 Va. 846, 149 S.E. 414
(1929), is misplaced. There, in a unitary criminal
trial, this Court held improper a prosecutor's
argument alluding to the impact of the murder on
the victim's widow, because it "in no way assists
in determining either the guilt or

APP 81

**390 the innocence of the accused." 153 Va. at

850, 149 S.E. at 415. In contrast, under Virginia's
modern, bifurcated capital procedure,. victim
impact evidence is probative, for example, of the
depravity of mind component of the vileness
predicate, which the jury in this case found as a
basis for imposing the death penalty. As the
Supreme Court said in Payne, "for the jury to
assess meaningfully the defendant's moral
culpability and blameworthiness, it should have
before it at the sentencing phase evidence of the
specific harm caused by the defendant.” 501 U.S.
at 825, 111 S.Ct. at 2608.

In conclusion, defendant raises a number of
miscellaneous issues dealing with evidence, jury
instructions, and inquiries by the jury during its
deliberations. We have considered all the
arguments in support of those issues and conclude
that none has any merit. Only two of those issues
warrant further discussion. First, defendant claims
the trial court erred in permitting Special Agent
Rowland to testify that Dukes had stated to another
investigator "that Lonnie Weeks did, in fact, shoot
the trooper.” At trial, defendant objected to the
Statement specifically cn the ground that it was
inadmissible hearsay and generally on
constitutional grounds.

[18}[19] The hearsay rule does not operate to
exclude evidence of a statement offered for the
mere purpose of explaining the conduct of the
person to whom it was made; this is especially
true when the evidence is not offered for the
purpose of establishing guilt or innocence of the
accused "but for the purpose of showing the reason
for the police officers’ action in arresting him.”
Upchurch v. Commonwealth, 220 Va. 408, 410,
258 S.E.2d 506, 508 (1979). See Manetta v.
Commonwealth, 231 Va. 123, 127-28, 340 S.E.2d
828, 830 (1986). As the prosecutor argued, and
the trial court implicitly found, this statement was
offered to explain Rowland's action in arresting
defendant at 7:52 a.m. after considering defendant
not in custody 12 minutes earlier, and not to prove
that defendant had in fact shot the trooper. Thus,
the trial court did not err in admitting the
Statement.

[20}(21}{22} Second, defendant contends the trial
court erred in denying his motion to strike the

Commonwealth's evidence on the offense of
capital murder made on the ground that the
evidence was insufficient to prove the element of
premeditation. The question whether a defendant
is guilty of a premeditated killing of the victim is
usually a jury question. The intention to kill need
not exist for any specified length of time prior to
the actual killing; the design to kill may be
formed only a moment before the fatal act is
committed provided the accused had time to think
and did intend to kill. Clozza v. Commonwealth,
228 Va. 124, 134, 321 S.E.2d 273, 279 (1984),
cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84
L.Ed.2d 370 (1985). In deciding the question, the
jury may consider, among other things, the
brutality of the attack and whether more than one
shot was fired. Id.

[23] In the present case, the jury's finding on this

element was fully supported by the evidence, and
the trial court did not err in denying the motion to
strike. On probation, riding in a stolen vehicle,
and possessing a weapon that the evidence
showed had been used in a previous North
Carolina murder, defendant shot the trooper at
virtually point-blank range at least six times to
avoid arrest. Several of the bullet wounds,
according to the evidence, probably were the
result of ricochet, indicating that the trooper may
have been fired upon while lying on the
pavement. These and other factors surrounding
the killing amply proved premeditation.

Lastly, defendant contends that the sentence of
death was imposed under the influence of
passion, prejudice, or other arbitrary factor, and
is excessive or disproportionate to the penalty
imposed in similar cases. We do not agree.

As we have said, the jury fixed defendant's
sentence at death on the capital murder
conviction upon the "“vileness" predicate.
Defendant points to no meaningful basis for
concluding that the determination was made
arbitrarily. He merely says the “verdict is
irreparably tainted by the error-filled process that
produced it” and he is "not a person who deserves
to die." On the contrary, the record amply
supports the conclusion that

APP 82

**391 the sentence was appropriate under the
circumstances.

[24] On the question of “vileness,” the jury found
that defendant's conduct in committing the offense
involved “depravity of mind and/or aggravated
battery.” Both of these components of the vileness
predicate were established. For example,
defendant, in an attempt to avoid arrest, shot the
trooper at least six times from close range with a
high-powered revolver, two of the shots being
independently fatal, under the evidence. The
officer posed no threat to defendant in connection
with this routine traffic stop; the trooper died with
his service revolver still enclosed in its holster.
Then, the defendant left and returned to the scene,
falsely claiming that he attempted to render
assistance to the victim when his real purpose was
to retrieve incriminating evidence.

[25] On the question of excessiveness and
disproportionality, we determine whether other
sentencing bodies in this jurisdiction generally
impose the supreme penalty for comparable or
similar crimes, considering both the crime and the
defendant. Code § 17-110.1(C\(2); Stamper v.
Commonwealth, 220 Va. 260, 257 S.E.2d 808
(1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666,
64 L.Ed2d 249 (1980). To assist in this
determination, we consider records of all capital
murder cases reviewed by this Court, including
cases where life imprisonment has been imposed.
Code § 17- 110.1(E).

In Smith v. Commonwealth, 239 Va. 243, 271,
389 S.E.2d 871, 886, cert. denied, 498 U.S. 881,
111 S.Ct. 221, 112 L.Ed.2d 177 (1990), referring
to Delong v. Commonwealth, 234 Va. 357, 372,
362 S.E.2d 669, 677 (1987), cert. denied, 485 U.S.
929, 108 S.Ct. 1100, 99 L.Ed.2d 263 (1988), we
compiled capital cases involving murders of police
officers. See Eaton, supra. And, today in
Cardwell v. Commonwealth, 248 Va. 501, 450
S.E.2d 146 (1994), we referred to those cases
where, as here, the death sentences were based
upon the vileness factor. From a consideration of
all these cases, we conclude that the death sentence
in this case is not excessive or disproportionate to
the punishment generally imposed by juries in the
Commonwealth for similar conduct.

Consequently, we hold the trial court committed
no reversible error, and we have independently
determined from a review of the entire record that
the sentence of death was properly asse sed.
Thus, the judgment of the trial court will he

Affirmed.
END OF DOCUMENT

APP 83

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

in: FILED

June 4, 1999

No. 98-21
CA-96-829-2
LONNIE WEEKS, JR.
Petitioner - Appellant

v.

RONALD J. ANGELONE, Director of the Virginia Department of
Corrections

Respondent - Appellee

Appellant’s petition cor rehearing and rehearing en banc
was submitted to this Court. As no member of this Court or the panel
requested a poll on the petition for rehearing en banc, and

As the panel considered the petition for rehearing and is of
the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and rehearing en

banc is denied.

For the Court,

/s/ Patricia S. Connor

CLERK

APP 84

gury instruction Cl

Even if you find that the Commonwealth has proved one or
both of the aggravating factors beyond a reasonable doubt, you
may give effect to the evidence in mitigation by sentencing the

Defendant to life in prison.

APP 85 ~*

ere

. “s* —_—_—_—.
ee ee ee ee

ind

1 ‘* + gwstRucTron wo. _ | _
| You are the judges of the facts, the credibility of the
‘witnesses and the weight of the evidence. You may consider the
ppearance and manner of the witnesses on the stand, their
letbtbtinetiil their opportunity for knowing the truth and for
having observed the things about which they testified, their
| ms in the outcome of the case, their bias, and, if any have
Heit shown, their prior inconsistent statements, or whether they
‘nave knowingly testified untruthfully as to any material fact in
‘ithe case.
i You may not arbitrarily disregard believable testimony of a
witness. However, after you have considered all the evidence in
“the case, then you may accept or discard all or part of the

lcestimony of a witness as you. think proper.

‘| You are entitled to use your common sense in judging any
“testimony. From these things and all the other circumstances of
‘the case, you may determine which witnesses are more believable
lang weigh their testimony accordingly.

APP 86 --

'

prow
INSTRUCTION NO. _C.
You have convicted the defendant of an offense which may be
nial by death. You must decide whether the defendant shall
be sentenced to death or to imprisonment for life or to

imprisonment for life and a fine of a specific amount, but not

more than $100,000.00. Before the penalty can be fixed at death, |

the Commonwealth must prove beyond a reasonable doubt at least
one of the following two alternatives:

1. That, after consideration of his history and background,
there is a probability that he would commit criminal
acts of violence that would constitute a continuing
serious threat to society; or

2. That his conduct in committing the offense was
outrageously or wantonly vile, horrible or inhuman, in
that it involved depravity of mind or aggravated battery
to the victim beyond the minimum necessary to accomplish
the act of murder.

If you find from the evidence that the Commonwealth has

proved beyond a reasonable doubt either of the two alternatives,
and as to that alternative you are unanimous, then you may fix

the 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 defendant at life
imprisonment or imprisonment for live and a fine of a specific
amount, but not more than $100,000.00.

If the Commonwealth has failed to prove beyond a reasonable
Goubt at least one of the alternatives, then you shall fix the
punishment of the defendant at life imprisonment or imprisonment
for live and a fine of a specific amount, but not more than

$100,000.00.

APP 87

-———— —

3 : :
INSTRUCTION
“aggravated battery” means a battery which, qualitatively

and quantitatively, is more culpable than the minimum necessary
to accomplish an act of murder.

APP 88

JURY INSTRUCTION B1

EVIDENCE IN MITIGATION oO oes Live strye nce OR
Mitigation evidence is not evidence offered as an r 4 mor - - aehn >)

excuse for the crime of which you have found defendant guilty.

Rather, it is any evidence which in fairness may serve as a basis +e Aa of V | a v5 rhe

for a sentence less than death. The law requires your | { “A Je oe 2 > Ta i

consideration of more than the bare facts of the crime. : | ge an a f
Mitigating circumstances may include, but not be limited to, 472 c V2 urd 2 a

any facts relating to defendant's age, character, education, j dc ie COrc ێ 4. ee wv. Yo

environment, life and background, or any aspect of the crime ita res ty ree | AL Pardo

itself which might be considered extenuating or tend to reduce ,
his moral culpability or make him less deserving of the extreme ) | : F
punishment of death. | 7 | Fst shh por HRT §

You must consider a mitigating circumstance if you find | .

there is evidence to support it. The weight which you accord a pry. & —
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APP 91

OPPOSITION
BRIEF |

NO. 99-5746

A. 99AI151

IN THE
SUPREME COURT OF THE
UNITED STATES

LONNIE WEEKS, JR.,

Petitioner,

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 And On Application For Stay Of Execution

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI AND TO
APPLICATION FOR STAY

MARK L. EARLEY
Attorney General of Virginia

*ROBERT H. ANDERSON, III
Assistani Attorney General
900 East Main Street.

Richmond, Virgini 2S Cc E VE D

(804) 786-4624

*Counsel of Reco AUG 2 7 1999

OFFICE OF THE CLERK
SUPREME COURT, U.S.

QUESTIONS PRESENTED

Where It Is Undisputed That The Petitioner Murdered
A Virginia State Trooper By Shooting Him
Six Times During A Routine Traffic Stop:

Is there any “compelling” reason to review the Fourth
Circuit's application of this Court's recent decision in
Buchanan y. Angelone, 118 S.Ct. 757 (1998), to the facts of
petitioner's case, which are substantially indistinguishable

from those in Buchanan?

Is petitioner's "experts" claim, for which he clearly has failed
to make any plausible showing of "necessity," barred by the
“new rule" doctrine?

TABLE OF CONTENTS

Page
re ae cnsbtinntustbnensepeniennncesee’ 1
STATEMENT OF FACTS. is i RSE OT ON 2
REASONS FOR DENYING THE WRIT AND A STAY eae aalll

I. Based On This Court's Decision In Buchanan vy. Angelone, 118 S.Ct.
757 (1998), The Fourth Circuit Correctly Upheld The Supreme Court
Of Virginia's Ruling On Direct Appeal That The Jury Properly
Considered The Mitigating Evidence Before Imposing A Death

Il. Weeks' Claim That He Was Constitutionally Entitled To The Services
Of Certain Forensic Experts, Which Is Unaccompanied By Any
Supporting Factual Argument, Is Barred By The New Rule Doctrine
And Does Not Present A Substantial Federal Constitutional Issue. ............

CONCLUSION

CERTIFICATE OF COUNSEL ........ccccseeeeeseeeeseeseesensenensesens

TABLE OF AUTHORITIES
Page
Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) ...............:..::cecesesseeceesenseeseeeeeeeees 12, 13, 14
Bollenbach v. United States, 302 U.S. GO7 (1946). .....0.........cccccccceccesceseeeesenenes ll
Brecht v. Abrahamson, 507 U.S. 619

CRI is caronsiecsiolnchincsbichdnssassonlahiacistiansigetiscosdsiailababiisciadishidedigts delet amano aera ne 9
Buchanan v. Angelone, 118 S.Ct. 757 (1998)....................scsscssseseecsseseeesees passim
Caldwell v. Mississippi, 472 U.S. 320 (1985) .........cccccscscsssesesseseenereeee 12, 13, 14
Graham v. Collins, 506 U.S. 461

CRIED sissieiciipecdiasiscie ohasllossicidllien-covrehigiecctecemsssbubtictes dikaakadsisticibiinsttecs tami tae 11
Gray v. Commonwealth, 233 Va. 313,

356 S.E.2d 157, cert. denied,

GE TE. BOE CI cherish ces rodeedicaplageilt ade teentaartit ieee ee 15
Husske v. Commonwealth, 252 Va. 203,

476 S.E.2d 920, cert. denied,

Se Ses ee CED ihc rectdikcatébsvsmadiotinatcciel chehsiincduamiaiettihdildycentaalteni cial 14
Leonardo v. People, 728 P.2d 1242

ED RI aco rike ots citischanccdinbisaiiasactinchaddadenukalestanalictaetiad eld: deme 10
Little v. Armontrout, 835 F.2d 1240

Coes ae; ROBT) Cats WO aisisecssieceslicipis Cinch bcsitisciiksaseniebbiadtises cessat sii meceatins 14
McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) (en banc),

meee YY To eT; emi eer a, 10, 11
McKinley v. Smith, 838 F.2d 1524

Ree Ee PICT I 2 ee RR Oy, LIPS OEE Su 14
Potter v. United States, 534 A.2d 943

CED, TI a Pecikecaivcsintnah visstibasentaihanaAncuiuieadenblamiccubdiimicntinmbaainita tities ina 10
Roen wv, Motte, 417 UT Fh, GOD CRG7A) .nsiccsicociecesss} sestssccven eattntdiesenietieniscsssaumlana 15

IIIT iit tcchts Ailchiatheiesiaaies tenet ennnndeTingetecneccashannnncetdthatenndtustanbbeeeateadeenesecseccccee 14
Teague vy. Lane, 489 U.S. 288 (1989) ..............ccccccesccscecseecscceeeseecceeseseesenees passim
United States v. Barragan-Devis, 133 F.3d 1287

al 2 os chasnsicnetencoocatntesooanesooncns 11

943 F.2d 1204

Eo sdekecnnsutonituaiiinnsdahanetedlimidettunies 9
Weeks v. Angelone, 176 F.3d 249

ES TS a a ne: passim
Weeks v. Angelone, 4 F.Supp.2d 197

ES NRRL SS OS Ss TO 2,17
Weeks v. Commonwealth, 248 Va. 460,

Oa Lk a sdipetnatcioniciminnntignteiiandinitninde 1
ee eC TD... snsceestneusermnaiounsbotconibsnnnaseniivhaseéneses 1
Other Authorities
NRE IS 8 CSS «BS GTI SS Aa 17
I, ei ae snsnibaeailleliamiiaasitoneesecenesaset 2

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

I Sa sssscseuiltisiecspsedetioncens iiheniiidinalicsatneaiadsieiateag 1
Section 8.01-654.1, Code of Virgimia ....................cccccccccsceeeeeeeeeneenseeeeeneneeeneee, cnees 1
ETE ES SOS RS TE EET RS ETDS Ae OR 5

iv

STATEMENT OF THE CASE

In a jury trial conducted in the Circuit Court of Prince William County, Virginia on
October 18-22, 1993, Lonnie Weeks, Jr. was convicted of the capital murder of Virginia
State Trooper Jose Cavazos. In the two-day penalty phase of the trial, after finding that the
Commonwealth had proved the statutory “vileness” aggravating factor, see Va. Code §
19.2-264.4, the jury imposed a death sentence on October 22, 1993. On January 14, 1994,
the trial court sentenced Weeks to death on the capital murder conviction. '

On direct appeal, the Supreme Court of Virginia affirmed Weeks’ capital murder
conviction and death sentence. Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379
(1994). Then, on January 13, 1995, the state court denied Weeks’ petition for rehearing.
This Court denied certiorari review on October 2, 1995. Weeks v. Virginia, 516 U.S. 829
(1995).

On December 4, 1995, Weeks filed his state habeas corpus petition in the Supreme
Court of Virginia. On January 11, 1996, the Director filed a motion to dismiss the petition
as jurisdictionally barred, based upon its untimeliness under Virginia Code § 8.01-654.1 and
Rule 5:7A(a) of the Rules of the Supreme Court of Virginia. On March 15, 1996, the
Virginia Supreme Court dismissed the petition as jurisdictionally barred. Then, on June 7,
1996, the Supreme Court denied Weeks’ petition for rehearing.

Next, Weeks filed a lengthy habeas corpus petition in the United States District
Court for the Eastern District of Virginia on February 7, 1997. After extensive briefing and

' In addition, Weeks pled guilty to use of a firearm in the commission of the capital

murder and a related grand larceny charge and was sentenced to respective prison terms
of three years and ten years.

oral argument, the district court dismissed the petition on April 1, 1998. Weeks v.
Angelone, 4 F. Supp.2d 497 (E.D. Va. 1998). On june 19, 1998, the district court denied
Weeks’ motion to alter or amend the judgment.

On appeal, the United States Court of Appeals for the Fourth Circuit unanimously
upheld the district court’s denial of habeas relief on May 10, 1999. Weeks v. Angelone, 176
F.3d 249 (4th Cir. 1999). On June 4, 1999, the Fourth Circuit, without dissent, denied
Weeks’ petition for a rehearing. On June 14, 1999, the Court of Appeals issued its mandate.
The Circuit Court of Prince William County then set Weeks’ execution for September 1,
1999. Finally, on August 3, 1999, the Fourth Circuit denied Weeks’ motion to recall its
mandate and stay his execution.

STATEMENT OF FACTS
Weeks concedes that he shot Virginia State Trooper Jose Cavazos six times during a
traffic stop in Prince William County, Virginia, on February 24, 1993. (Pet. at 3). In its
opinion the Fourth Circuit reprinted verbatim the facts in this case, as found by the Virginia
Supreme Court on direct appeal. Weeks vy. Angelone, 176 F.3d at 254-256. These facts are
binding on federal habeas corpus pursuant to 28 U.S.C. § 2254(e):

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 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, 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 Disirict of Columbia. The pair was travelling
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 highway medium monitoring southbound
traffic. 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0395%3A03. Public record. Not legal advice.