# Appendix — Ramdass v. Angelone

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0398%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 156

## Text

EDITOR'S NOTE

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No.

convic-
-151(B1)
s law”).

motion to

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414 ©@ ic: revera rerorren, 1 ss

Gardner v. Florida, 430 U.S. 349, 97 S.Ct.
1197, 51 L.Ed.2d 393 (1977), and Skipper
v. South Carolina, 476 U.S. 1, 106 S.Ct.
1669, 90 L.Ed.2d 1 (1986), that “elemental
due process require(s] that a defendant not
be sentenced to death ‘on the basis of
information which he had no opportunity
to deny or explain.’” Skipper, 476 U.S. at
5 n. 1, 106 S.Ct. 1669 (plurality opinion)
(quoting Gardner, 430 U.S. at 362, 97 S.Ct.
1197), quoted in part in Simmons, 512
U.S. at 164, 114 S.Ct. 2187 (plurality opin-
ion), and quoted in id. at 175, 114 S.Ct.
2187 (O’Connor, J., concurring in the judg-
ment). As both the plurality opinion and
the O’Connor concurrence‘ recognized, the
fact that the defendant will never be re-
leased from prison “will often be the only
way that a violent criminal can successfully
rebut the State’s case [of future danger-
ousness].” Simmons, 512 U.S. at 177, 114
S.Ct. 2187 (O’Connor, J., concurring in the
judgment); id at 163-64, 114 S.Ct. 2187
(plurality opinion) (“In assessing future
dangerousness, the actual duration of the
defendant’s prison sentence is indisputably
relevant.... Indeed, there may be no
greater assurance of a defendant’s future
nondangerousness to the public than the
fact that he never will be released on
parole.”).

This principle has full force in the case
at bar. At capital sentencing, the prosecu-
tion presented evidence of Ramdass’ fu-
ture dangerousness. Some of this evi-
dence included the fact that Ramdass had
committed the Pizza Hut robbery and the
Domino’s Pizza robbery. More important-
ly, the Commonwealth repeatedly referred
to the fact that Ramdass had committed
4. We have recognized Justice O'Connor's con-

currence as the controlling opinion in Sism-

mons. See Keel v. French, 162 F.3d 263, 270

(4th Cir.1998), cert. denied, — U.S. —, 119

S.Ct. 2353, 144 L.Ed.2d 249 (1999); Townes
v. Murray, 68 F.3d 840, 849 (4th Cir.1995).

many of his crimes while on parole. The
Commonwealth mentioned the phrase
“mandatory parole” several times, suggest-
ing to the jury that the Commonwealth
would have no choice but to parole Ram-
dass at some future date. In the face of
this evidence of future dangerousness,
Ramdass was rendered powerless to ex-
plain to the jury that, but for what was at
that point a meaningless ministerial act, he
was ineligible for parole under state law.*
Thus, under Gardner, Skipper, and Sim-
mons, Ramdass was denied his “elemental
due process” right to deny or explain the
Commonwealth’s evidence of future dan-
gerousness. See Simmons, 512 US. at
175 (O’Connor, J., concurring).

It is also important to remember the
audience of the Simmons right. Simmons
is concerned about the defendant’s ability
to present rebuttal evidence to a jury.
Thus, Simmons is grounded in the right to
present information which might affect a
jury's decision making. Juries are not
concerned about legal technicalities or re-
mote and theoretical possibilities. They
are concerned about practical realities.
The Supreme Court recognized this point
in Simmons... In Simmons, South Car-
olina argued that informing the jury that
the defendant would be parole ineligible
was inherently misleading because future
contingencies such as legislative reform,
commutation, and clemency might allow
the release of the prisoner. The plurality
rejected this argument, holding that the
defendant could not be denied the right to
rebut prosecution evidence of future dan-
gerousness merely because of “hypotheti-
cal future developments.” Simmons, 512

French, 162 F.3d 263, 270 (4th Cir.1998), and
Fitzgerald v. Greene, 150 F.3d 357, 367 (4th
Cir.1998), to defeat this straw man. In each
of those cases, however, the defendant re-
mained eligible for parole under state law
even when all ministerial acts were complet-
ed. Of course Simmons did not apply to each
of those defendants. Those cases are wholly
ment is based on his parole ineligibility under
state law.

:
“«
-

343

exhausting state appellate and habeas proce
dures, The Distriet Court, Jackson, J., held
that: (1) some but not all claims that jury

PINE = es eS 415
Cite as 187 F.3d 415 (4th Cir. 1999)

U.S. at 166, 114 S.Ct. 2187. The court tion requires us to treat the one as
! a

reasoned that a parole ineligibility instruc- certainty and the other as if it did not

tion was more accurate than no instruction exist.

at all, which would inevitably leave the Splitting when

jury to assume that the defendant would —

a man’s life is at would receive life sentence without possibility
eventually be released. Id. Nothing in post veme pane tO 8 Judiciary or 8 of parole if death sentence was nes Stas
Justice O’Connor’s concurrence indicates system. I do not believe that due were procedurally barred; (2) ee
that she disagreed with the plurality that process requires or allows such arbitrary sistance of counsel claim based on faite

results. I would hold that, regardless of object to appointment of mental health ex-

remote contingencies were irrelevant technical legalistic
the due process analysis. ; + he the
In the case at bar, the majority hides its Court,

reliance on hypothetical future develop- process

ments behind a state law shield. Because wholly

Ramdass did not become technically “pa- time the sentence were deliberating

role ineligible” under Virginia law until was oitiedly anal toy Go data

judgment was formally entered on the would i

Domino’s Pizza robbery, the majority parole.

holds that Simmons is inapplicable. But

at the time of the Kayani sentencing, only

some hypothetical future development as

remote as legislative reform, commutation,

or clemency, could have affected entry of

the Domino’s Pizza robbery conviction and

therefore prevented Ramdass from being

parole ineligible. The reason the Supreme

Court rejected reliance on such future PINE RIDGE COAL COMPANY, a

hypothetical developments is evident in the corporation, Plaintiff—Appellee,

arbitrary result of the case at bar. At the |

time of the Kayani sentencing, the court He

had already rejected Ramdass’ motions in LOCAL 8377, UNITED MINE WORK-

pert did not preserve for habeas review claim

state Supreme Court’s determination that ad-
was binding on federal court; (4) state Su-
preme Court’s summary disposition of habe-
as petition was adjudication on merits enti-
tled to deference in federal habeas corpus
review, (5) state Supreme Court made unrea-
sonable determination of facts and unreason-
ably applied a United States Supreme Court
precedent in determining that the Supreme
Court’s Simmons decision, requiring that
jury considering future dangerousness factor
in assessing whether to impose death penalty

would receive life imprisonment without pa- i
role if not put to death, was inapplicable i: i
because parole was possible in present case; if
(6) petitioner did not receive ineffective assis- |i:
tance of counsel; (7) rule requiring ex parte \|
hearings on defendant’s requests for appoint- 4)

the Domino’s Pizza robbery case to set —©RS OF AMERICA, an unincorporat- ment of experts would not be applied for first |
aside the jury's verdict before entry of ed labor association; Local 6426, Bobby Lee RAMDASS, Petitioner, time on collateral review; (8) exclusion of ;
judgment. See Virginia Sup.Ct. R. United Mine Workers of America, an v. polygraph evidence did not violate petition- {|
3A:15(a). Formal entry of the conviction Unincorporated labor association, De- Ronald J. ANGELONE, Director of er’s constitutional rights; (9) withholding of {
at that point was merely a ministerial act. fendants—Appellants. 3 Vi ‘nis Department of Cor- exculpatory materials did not constitute con-
Thus, for all realistic intents and purposes, No. 97-2666. rections, Respondent. stitutional violation affecting conviction; (10)
it was a guarantee that Ramdass would be ; No. CIV A. 2-96CV831 trial court’s determination of state law mat
parole ineligible when the Kayani convic- United States Court of Appeals, ; ters would not be reviewed; (11) court would
tion was formally entered. Fourth Circuit. a not rule that unadjudicated crimes evidence
Further, there was at the time teas was inadmissible in capital murder case, a6
vthone Ah aoe Say Se Norfolk Division. new rule would be created in collateral pro- |
bery guilty verdict and the Domino’s Pizza statute was not unconstitutionally vague.

robbery guilty verdict. Because the Rule Mine operator brought action against
8A:15(a) motions had been denied for the union under Labor Management Relations
Domino’s Pizza robbery verdict, both ver- Act (LMRA) seeking recovery of costs re-

dicts were subject to an identical degree of sulting from unauthorized work stoppage. peatedly core OS at Plaintiff's sales performance nee
uncertainty—either could be set aside only Following entry of summary judgment in covasle oy ee Seratnsilont Se to generate new business and failure to generate

under a Rule 3A:15(b) motion or on appeal. favor of operator on liability issues, the
Yet the majority asserts that the constitu- United States District Court for the South-

21

344
1. Habeas Corpus ¢319,1 .

A claim is cextiausid” for federl habe-
as corpus review purposes, if either’ the claim
was presénted to the state courts or, though
never presented to the state courts, the claim
if now presented to the state courts would be
found to - be procedurally Getenitel. - ‘=

USCA § 2254(b), i eee
for other judicial constructions and def-
initions.

quate state procedural rule. 2 USCA
§ 2254(b).

3. Criminal Law @1030(1)

Under Virginia law, to preserve an issue
for direct appeal, a timely objection generally
must be made at trial VaSup.Ct Rules,
Rule 5:25. a
‘ Habeas Corpus €287.1 °

With the exception of ineffective assis-
tance of counsel claims, failure to raise ‘a
claim on direct appeal bars consideration of
that claim in subsequent state habeas pro-

5. Habeas Corpus €898(1)

Under Virginia law, claims which are not
presented in an original state habeas petition
will not ordinarily be considered in a subse-

py mye Va.Code 1950, § 8.01-
654, subd. B, par. 2. .

6. Habeas Corpus €>898(1)

Under Virginia law, no writ of habeas
corpus is to be granted on basis of any
allegation facts of which petitioner had
knowledge at time of filing of any previous
habeas petition. Va.Code 1950, § 8.01-654,
subd. B, par. 2.

1, Habeas Corpus ©3862 _
Both operative facts and legal principles
must be presented to state court before claim

may be subject of federal habeus sorpus re
view. 28 US.C.A. § 2254. 5 «=

Come

{. taf 4°

8. Habeas Corpus 404 1+ es se ve get

When « jotitiiar can show both’ dit
for and prejudice resulting from default ‘of a
claim on state procedural grounds, a federal
court may extend habeas corpus review to a
defaulted claim. 2B USCA § 2254. | ie

9. "Habeas Corpus 406.1

To ‘establish | “émnine” -sulfickénit'to ‘allow
federal habeas corpus review of procedurally
defaulted state Claim, a petitioner must show
that some objective factor external to the
defense impeded counsel’s efforts to comply
with the state’s procedural rule. 2 US.CA
§ 2254...

See ‘publication Words and Phrases

for other judicial constructions and def-
initions.

10. Habeas Corpus €409 ;

To establish “prejudice” sufficient to al-
low federal habeas corpus review of proce-
durally defaulted state claim, a petitioner
must show that the error worked to his
actual and substantial disadvantage, not
merely that it created a possibility of-preju-
dice. BUSCA § 224. -

ben exiieaten Wests ond Team

for other judicial constructions and def-
11. Habeas Corpus €401* — a

If a habeas corpus petitioner cannot
show “cause” and “prejudice” sufficient to
excuse a state procedural default of his or
her claims, the claims may still be reviewed
when refusal to do so would result in a

fandamental miscarriage of justice. 28
US.C.A. § 2254. ~

12. Habeas Corpus ¢401
To establish “miscarriage of justice” suf-
ficient to allow federal habeas corpus review
of procedurally barred state claim, a petition-
er must show that a constitutional violation
has probably resulted in the conviction of one
who is actually innocent, or when death sen-
tence is being challenged, petitioner must
show by clear and convincing evidence that
but for a constitutional error no reasonable
juror would find petitioner eligible for the
sa 2USCA§ 224
See: publication Words and Phrases —
eee 8 6 eee: «

17 oe

13. Habeas Corpus 369 7h. “8

Habeas petitioner’s challenge to state
supreme court’s determination, that he was.
parole eligible rendering inapplicable United
States Supreme Court's ruling that noneligi-
bility for parole miust be disclosed to jury
when future dangerousness was issue in capi-
tal murder sentencing proceeding, was proce-
durally barred, due to failure of petitioner to
request reconsideration of state supreme
court’s decision. US.C.A. Const.Amends. 8,
14; BUSCA Se

object to appointment of medical expert who
allegedly would not work with defendant and
put on medical health testimony, did not

for habeas review claim that court-
appointed medical health expert was ineffec-
tive. U.S.C.A Const.Amends. 5, 8, 14; 28
US.C.A. § 2254.

15. Habeas Corpus 364
Failure of defendant, convicted of capital
murder, to raise in state habeas proceedings
claim that his counsel was ineffective for
attempting to prove inconsistent defenses,
federal habeas corpus review of
claim. U.S.C.A. Const.Amends. 5, 6, 8, 14;
28 U.S.C.A. § 2254.

beas corpus claim of lack of expert assistance
by asserting defense of procedural default;
state had failed to assert defense in earlier
state court appeals proceedings, choosing ‘o
address claims on merits. 28 USCA.
§ 2254.

17. United States Magistrates 25

Trial court would deem habeas corpus
point discussed by magistrate judge in report
and recommendation, without objection by
either side, to have not been procedurally
defaulted. 28 US.C-A § 2254. :

18 Habeas Corpus 770

State supreme cunts (haiudnation,
oS eee ae oe
review before approving death

72

RAMDASS vy. _ANGELONE . - | 345
Cite as 28 OSugp.as 343 (E.D.Va 1998)

bound federal court conducting -habeas re-
view. 28U.S.C.A. § 2254.

19. Habeas Corpus 7165.1

A state court decision that summarily
dismisses a habeas corpus petitioner’s claim
as meritless is an adjudication on the merits
entitled to deference on federal habeas cor-
pus review, under the Antiterrorism and Ef-
fective Death Penalty Act. 28 USCA
§ 2254(d).

20. Habeas Corpus 503.1

State supreme court made “unreason-
able determination of the facts,” allowing for
habeas corpus review of its conclusion that
petitioner convicted of capital murder would
not be subject to compulsory life sentence if
death sentence was not imposed; state su-
preme court applied inconsistent reasoning in
concluding that present offense could be
counted toward determining if defendant had
committed three violent felonies, as required
for lifetime commitment without parole un-
der state statute, even though sentencing in
present case was not yet complete, while
denying applicability of third violent felony
for which he was convicted on grounds that

sentencing had not occurred. 28 US.CA.
§ 2254(b); Va.Code 1950, § 53.1-151, subd.
Bl.

21. Habeas Corpus 498 y

State supreme court unreasonably ap-
plied United States Supreme Court prece-
dent, in upholding death penalty, by claiming
that Supreme Court’s Simmons decision, re-
quiring disclosure to jury asked to evaluate
future dangerousness of fact that defendant
would be sentenced to life imprisonment
without possibility of parole if not sentenced
to death, on grounds that mandatory life
sentence was not required in present case;
state supreme court read state statute pre-
cluding parole in illogical manner. 28
U.S.C.A. § 2254(b). |

22. Criminal Law €641.13(6)

It is not ineffective assistance of counsel
to advise one’s client not to testify. US.CA
Const.Amends. 5, 6, 8, 14. ef

28 FEDERAL SUPPLEMENT,
23. : he eS T +t ae ’
641.186) 2-9) sa
ae ne OSS" ted offense. US.C.A Const. Amends:'5; 6, 8;
- perrpeercdiw with capital murder 14. cto mo}, 8
his attorney failed to 4 =? © testimony 28. Courts €100(1) |
_ Tegarding ballistic matters given by . " Rule’ established
witness qualified only as firearms identifica- ex parte

24. Criminal Law €641.13(7) ,
Defendant charged with capital | \ 4

did not receive ineffective _—
assistance
sel who did not object when of coun-

sentenced to death. U.S
5, 6,8,14. ~ C.A. Const.Amends.

26. Criminal Law €641.13(7)

he was .
ating under mental defect when he commit a AS 28 U.S.C.A.

24

» :_ RAMDASS._y,.;ANGELONE ® 347

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)
set, and recommended that the motion to dismiss
Virginia capital murder sentencing stat- be“denied and that Petitioner's case be re-
ute was not unconstitutionally vague, despite manded for resentencing." °°)!
use ‘of term . “future dangerousness.” By copy of the-R & R, each party was
US.C.A. Const.Amend. . 14; Va.Code :1950, advised of his right to file written objections
§ 182-18. nt eee or! os «to the fineings and recommendations made

: at piteemep f a'.'4 2.2 Oh 3% by the Magistrate Judge. On March 30,
PO Ne Se tg 1998, this Court received “Petitioner's Objec-
Katherine P, Baldwin, Assistant Attorney tions to Magistrate Judge's Report and Ree-

General, Office of the Attorney Gener®l, CAF” —ommendation’. ane “Respondent's Objections
ital Habeas Litigation Section, Richmond, to the Magistrate Judge’s Report and Ree:
VA, for Ronald J. Angelone. ‘ - gmmendation.” On April 13, 1998, both par-
John M. Ryan and Nash F. Bilisoly, Van- ties filed respective replies to the objections.
deventer, Black, Meredith and Martin, LLP, - With some exceptions, Petitioner objects to
Norfolk, VA, Michele J. Brace, Robert Ed- the Magistrate Judge’s recommendations to
ward Lee, Jr.; Mark E. Olive, Virginia Capi- deny certain claims on the basis of procedur-
tal Representation Resource Center, Rich- al default. Of the claims the Magistrate
mond, VA, for Bobby Lee Ramdass. Judge addressed .on the merits, Petitioner
| 4 si does not contest the ultimate recommenda-
OPINION AND FINAL ORDER_ tion to order Petitioner’s resentencing, how-
' nee ‘ 4 ever, he does object to the recommendations
JACKSON, District Judge. to deny the remaining claims on the merits.
In January, 1998, Petitioner was convicted Further, Petitioner maintains that he is enti-
in the Circuit Court of Fairfax County, Virgi- fled to conduct discovery and present evi-
nia for the September, 1992 murder of Mo- dence on his claims which were denied on the
hammad Z. Kayani, a convenience store merits. Respondent disagrees with the stan-
clerk. Pursuant to the jury's recommenda- dard the Magistrate Judge utilized in con-
tion, on April 2, 1993, the court sentenced cluding that certain claims were not proce-
Petitioner to death. Subsequently, Petition- durally defaulted and the ‘recommendations
er exercised his state appeals to no avail. On that certain claims were not procedurally
March 11, 1997, Petitioner filed an amended defaulted. Additionally, Respondent objects
petition for a federal writ of habeas corpus, to the ultimate recomme
t to 28 U.S.C. § 2254,' alleging viola- Petitioner's case for resentencing. Both par-

tions of federal constitutional rights during ties object to the standard of review the
his conviction and sentencing. This matter Magistrate Judge applied when evaluating
comes before the Court on Respondent’s claims on the merits.

April 28, 1997 motion to dismiss the petition. Pursuant to Rule 72(b) of the Federal
On June 3, 1997, Petitioner filed a response Rules of Civil Procedure, the Court, having
to Respondent's motion to dismiss. On June reviewed the record in its entirety, shall
26, 1997, Respondent filed a reply t Peti- make a de novo determination of those por-
tioner’s response. | “9° tions “of the Magistrate Judge’s R & R to
Pursuant to the provisions of 28 U.S.C. which the parties specifically objected. The
§ 636(bX1B) and (C), Rule 72(b) of the Court may accept, reject, or modify, in whole
Federal Rules of Civil Procedure, and Rule or in part, the recommendation of the Magis-
99 of the Rules of the United States District trate Judge, or recommit the matter to him
Court for the Eastern District of Virginia, with instructions. 28 U.S.C. §. 636(b)(1).

the matter was referred to a United States

Magistrate Judge for Report’and Recom- — 1. FACTS AND PROCEDURAL
mendation (“R & R”). On February 27, HISTORY

1998, the Magistrate Judge filed his R & R, “The R & R contains a detailed statement
He found merit in one ground in the petition of the facts surrounding the crime, Petition-

1. On February 14, 1997, Petitioner filed his ini- _tial petition.

33. Homicide 351, 357(6)

25

348 * 28 FEDERAL SUPPLEMENT. @..
° . “ ; ‘ fA Si S>- "woe tS 4 2d |

ex's’ conviction end: contending, end exlies: : Singh stated
precise moment of the shooting,
eee The Sohutnen siete aicaen
ae oe cm ng go off, clicked it again and it went off.”. Ud.)
, — ‘ history are as follows. testified that he returned from a back room
a ee | a Ramirez saw Petitioner laugh-
P ) as he stood )
m . night ¢ Synte 1, 1992, Tr. at 145.4 over Kayani’s body. (1/27/93
Petitioner and Darrell ‘Wilson, ~oe O’Connor ‘aad an Singh, and
tah htt us ota open, moet. sa Sin a ae
with three other , Shane Singh; Simones ran — what a or
in yo ren Ane | 1 (Ud at 146.) H ioner was “click-
Mae oe ce: Ramirez, after ing the gun at the people on the floor” and
abandoning ha + maytag told Ramirez to “[sJhut up or I'll put one in
oe ae | Fairfax aoe: _ (Id.) One of the customers also heard
t rant ] LI t i lick of the * - P
including Petitioner, decided that they would (V/27/98 ‘Tr. at 125, 129-30.) le aes

<> Sanne & 9 S-Sierts Gave os Rah When they got in the car, Ramirez |
vh car, heard
Near one o'clock on the morning of ate bn Aer a
tember 2, 198, the five man entared the 7 After the men divided the eters proceed
*,% - -w ,
se A nae a > aaa ten Sees tt
drew” oo yani, a clerk who was “{dJon’t tell anybody about this [o}r I'll kill
lane ang register. Wilson, who also you and I'll kill your whole family.” (1/27/93
displayed his pistol, ordered all the eustom- Tr. at 146-47.)
hg ay waged heeded Singh, a co-owner of the gun with Petition-
The other three men, were unarmed, testified fame —
orn ee ee eat 2 ytd nal g-

~~

2 - (2 RAMDASS '¥.! ANGELONE & 349

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

revealed that powder
found ori Kayani’s head. (/d at 102.)

Based on the evidence, the jury convicted
Petitioner of capital murder and the use of a.
firearm in the commission of a felony. The
case proceeded to the capital sentencing
phase. The Commonwealth, in seeking the
death penalty, relied solely upon the “con-
tinuing serious threat to society” condition,
also known as “future dangerousness.” In
support of its position, the Commonwealth
introduced evidence of Petitioner’s use of a
firearm and participation in the robbery of a
Pizza Hut on August 25, 1992; robbery on
August 29, 1992, of a hotel night clerk, who
was physically beaten by Petitioner and
threatened with a gun during the robbery;
use of a firearm and robbery of a Domino's

tioner need not be sentenced to death on the

basis of future dangerousness because he

already required to serve at least
The

uit
alt
fe
fits
PyEeeis

i

-

5

E
&_°*
§

2
Es
2

that he won’t commit crimes of violence in
the future.” (1/29/93 Tr. 98.) = « a
* ‘Trial counsel informed the jury of Petition-
er’s extensive juvenile record. Beginning in
1985, Petitioner came before the Court for a
purse snatching, for which he received proba-
tion, (1/29/93 Tr. at 198-99); theft.of a moped
and a burglary, for which he was sentenced
to a juvenile facility, (1/29/93 Tr. at 200);
being a juvenile escapee, (1/29/93 Tr. at 201);
and robbery as a juvenile, for which he re-
ceived an adult sentence to Southampton
prison, (1/29/93 Tr. at 17-18, 202). . The jury
also learned that Petitioner acquired his first
gun at age thirteen or fourteen, while he was
selling drugs, (1/29/93 Tr. at 149-51); that he
was in possession of a loaded gun when he
was arrested, as a juvenile, and charged with
robbery, (1/29/93 Tr. at 24); and that he
violated his parole, which began on May 21,
1992, by acquiring a gun on July 4, 1992, less
than sixty days later, (1/29/93 Tr. at 85-86,
202). .

Furthermore, the defense presented evi-
dence of a bleak, abusive, unstructured child-
hood. Petitioner was physically and emo-
tionally abused and raised in conditions of
severe deprivation. There was no positive
guidance.

an early age. (Jd at 217.) She was working
as a topless -daricer when Petitioner was
born. (Id. at 219.) : She acknowledged being
convicted of writing a bad check

:

g

FE
Reg

350 e so vaneundh::daiteaieabinsieies
tee ss die tes: a! oie “8S i aggee). 4 if as 4.2
described etitioner was physically the: jury verdict offense of capital
abused by a boyfriend and how she taught ie “ dipa 5
petitioner to defend himself. She admitted Beet, aes as MA a
ne Out an het On September 2, 1 Petitioner wa
Jennifer Joffe, a Virginia probation/parole dank ieitaned tanta coteh eaten
officer, was called by the defense. She had at a 7-Eleven. convenience store on Buelah
Jara se a ation report following Peti- Street in Fairfax County, Virginia’ He was
~ conviction for robbery. (/d. at arrested on September 11, 1992, for an earli-
ey Joffe presen ted evidence of Petition- & Tobbery, together with other defendants,
i On ucasenne | o- ye
edged none of the counseling reports 1992, Petitioner was indicted by a Fairfax
neal on ne ane »County grand jury on capital murder, armed
of pgcanns 0 serious mental problems. robbery, aiid use of a ftrearm in the commis:
oe) See eee oe sion of arobbery. 5
sessment 0 etitioner as immature, impul- Counsel was appoi in ti 7
ion appointed in timely fashion,
ete thy tage (id. at 127.) In ree On November 2, 1992, the trial court denied
spo fe Spttion “Ye Oe tees Petitioner’s request to make an ex’ parte
a a she responded, showing of need for expert assistance.
wal -) ; (11/2/92 Tr. 20-32.) On December 8, 1992,
_Pettoner didnot cal the court-appointed the trial court denied Petitioner's motion for
health xpart to testify as to Petiicnar’s @ physical exam concluding that there was a
a L__ or mitigating circumstances. per gee cing oo ye made
iin m eae, the court-appointed ex- eee for an exam. (12/8/92 Tr. at 6.) Counsel
. ‘that there were no mitigating proffered that he needed the exam to
circumatences in Petitioner's case. determine whether Petitioner suffered from
Finally, though Petitioner did not testify iz a reflexive disorder. (Jd. at 7-8.) Next, the
- : testify in trial court denied Petitioner’s request
penta Petitioner did testify in the appointment of: an expert rata oo
tencing phase. (1/29/93 Tr. 132-216.) Tl ceatis 0 tach deseat ie te ae
_ i i ley ene sae team. (Jd at 22) Next, the trial court
_ during the penalty phase of the capital declined to order the Commonwealth to turn
auuter pesmi, Gay GbeRNE 0 ae over to’ Petitioner statements Petitioner
re nh coy ag wom “{I}f the Claimed were exculpatory. (/d at 44.)
endant is given life, is there a possibility The matter ci anuary
pboey- ttn au mao 26, 1998. teeta oe aatnaitees :
death, COS . . court re- dire and selection. At Pettioame, ter
aoe dee lara tes cae re persis ay Mnan jo ines ge mga
eon: in this case, you should im- bery charge which was accepted a
ee t as you feel is just following the normal colloquy. ~ Ae
ee and within the instruc- the request of the Commonwealth Attorney seer
bye You are not to concern and over the objection of defense counsel, a
pon (/29/88 Tr. at 281) The Court did rp Seti wheres ho
ore sameraptomenes | ysingn novel ys At the whe a0: 7 or ;
death for Petitioner. On Apri Ne ppt tear ate fs + veri
sattaaien tin to Seah tetiel death penalty statute on

SUSTAINED. Both arguments will be ad- G. ahs gre - — Jem

Sixth, Eighth and Fourteenth amend-

D. ney eal Spree open oraete mente | |
deprived o c expert ‘ .

sesame te coaiaiien of the Fifth, Sixth, The Magistrate Judge comand G8

In his motion to dismiss, Respondent did ed. (R & R 37.) Respondent chjeue ergy
not argue that this claim was procedurally ing that some of the arguments

(R & R 62,), implicitly concluding that the state courts. Turning to Respondent's mem-

Fifth, Sixth, : the

‘and Fourteenth the jury recommends death; @ tat ‘

amendments pan alan aggroers *vileness” aggravating factor is vague; St)

showing of need for expert ascistance. that death by legal injection is om
» dismiss, Respondent.did unusual; (iv) the sentencing statute

that
to . . = . .
7

: af

360 @ * HLL suPrLemene, 1s es

aside if a court finds “good cause;” and (v)
et Ge eeltentng ctateto iieny Gir. Sate.
say in the post-sentence report. -

On direct appeal, Petitioner argued (1) that
death by electrocution is cruel and unusual
and (2) that the Virginia death penalty stat-
ute is unconstitutional because “future dan-
gerousness” is not meaningfully defined and
no jury instruction is required in consider-
ation of mitigating evidence. In his state
habeas petition, Petitioner did not challenge
the ‘constitutionality of the death penalty
statute. Accordingly, Respondent's objection
is SUSTAINED.’ Those particular argu-
ments will riot be considered by this Cout,

bat any remndining afguments will be evaluat
ed on their merits.

H. Petitioner was denied his right to con-
frontation in violation of the Sixth
amendment. |

In his motion to dsmis, Reapondet di

consideration of unadjudicated misconduct.
In the state habeas proceeding, Petitioner
claimed that trial counse) was ineffective for

failing to object to the admission of evidence ©

of prior unadjudicated misconduct. Further,
habeas counsel alleged that the trial court
erred in permitting evidence of unadjudicat-
ed prior misconduct even without an objec-

tion to such evidence.’ Accordingly, Respon-
dent's objection is OVERRULED. yah

4. The Virginia Supreme Court failed to
_ perform an adequate review of Peti-
tioner’s death sentence for proportion-
ality and for passion, prejudice or oth-
er arbitrary factors.

{18} The Magistrate Judge determined
that the issue of the sufficiency of the Virgi-
nia Supreme Court’s proportionality review
was procedurally defaulted, but that the is-
sue of whether Petitioner’s sentence was
imposed under the influence of passion,
prejudice or any other arbitrary factor or
disproportionate was not procedurally de-
faulted. (R & R 33, 73.) Petitioner objects
to the former conclusion. Senpeotont ob
jects to the latter.

Va.Code § 17-110.1(C) mandates review of
death sentences for proportionality and for
passion, prejudice or arbitrariness, in addi-
tion to consideration of any errors alleged by
a defendant. On direct appeal, Petitioner did
not argue that either of these situations ap-
plied in his case. On direct review, the
Virginia Supreme Court determined that Pe-

7 . J. RAMDASS 5. ANGELOGD , 361
.Va.

is SUSTAINED. Neither argument will be
considered on its merits.

K. Virginia’s capital murder sentencing
statute is unconstitutional.

In his motion to dismiss, Respondent did

Judge evaluated this claim upon its merits,
(R & R 77.), thereby implicitly concluding
that the claim was not procedurally default-
ed. Neither party objected to the Magis-
trate Judge’s conclusion. Accordingly, the
Court finds that the claim is not procedurally
defaulted and will address the claim on its
merits.

IV. CLAIMS REVIEWED
ON THE MERITS
The Anti-terrorism and Effective Death
Penalty Act (“AEDPA”) is generally applica-
ble to Petitioner’s case, because his petition
was filed well after April 24, 1996, the enact-
ment date of the Act. See Lindh v. Murphy,
521 U.S. 320, 117 S.Ct. 2059, 2068, 138
L.Ed.2d 481 (1997) (holding that the new
provisions of chapter 153 generally apply to
cases filed after the [AEDPA] became effec-

8. Even if the Court did not find the claim proce-

tive).®:' The newly amended 28 U.S.C.
§ 2254(d) establishes the standard of review
to be applied by a federal court considering a
state prisoner’s petition for habeas ‘relief.
Section 2254(d) provides as follows: ‘> cavaeis 8
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to’ any
claim that was adjudicated on the merits in
Sate comms qreneetings eas Ge eee
cation of the claim— :
(1) Fesulted in a decision that was con
trary to, or involved an unreasonable
application of, clearly established Feder-
al law, as determined by the Supreme
Court of the United States; or '

(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented
in the State court proceeding.

Both parties object to the standard of re-
view as outlined by the Magistrate Judge.
Petitioner objects arguing that in evaluating
the Virginia Supreme Court’s cursory, “no
merit” state habeas ruling, the proper stan-
dard of review is de novo. Respondent ob-
jects to the Magistrate Judge’s determina-
tion that mixed questions of law and fact (e.g.
Petitioner’s ineffective assistance of counsel
claims) are to be reviewed de novo. Respon-
dent argues that, under the AEDPA, state
court findings both of fact and of law are
subject to deferential review.

{19} Section 2254(d) applies to any claim
adjudicated on the merits in state court.
Contrary to the argument advanced by Peti-
tioner, a state court decision that summarily
dismisses a petitioner’s claim as meritless is
an adjudication on the merits within the
meaning of § 2254(d). Wright v. Angelone,
151 F.3d 151, 156, No. 97-32, 1998 WL
394990, at *4 (4th Cir. July 16, 1998); Hen-

9. The specific provision of § 107 of the AEDPA,
however, is not applicable. Although § 107 con-
tains several provisions pertaining specifically to
capital defendants, these provisions are applica-
ble only if the state meets the “opt-in” require-
‘ments set forth in § 107. Virginia does not meet

-. the qualifications of § 107, (Mem. Op. and Or-
der, Dec. 6, 1996.), thus prechuding its applicabil-
ity to this case.

362 @> repens: surevemenr, 24 sof

ca Foe

non v. Cooper, 109 F.3d 830, 335 (7th Cir.

ened in cases where the state court offers no
explanation for its decision. See Cardwell v.
Netherland, 971 F Supp. 997, 1015 (E.D.Va
1997). In cases where there is no indication
of how the state court came to its decision, it
will obviously be more difficult for the feder-
al court to determine whether the state
court’s ultimate determination involved an
euitinad ty Os than of leat -
Seventh Circuit: ee
(O}f course the better the job the state

criterion of a reasonable determination is
whether it is well reasoned. It is not. It

. $75 oe Oe oe

to point to an authoritative decision of the
Supreme Court in order to secure a’ writ.
See Bocian v. Godinez, 101 F.3d 465, 471 (7th
Cir.1996). ;

In Green v. French, 143 F.3d°865 (4th
Cir.1998), the Fourth Circuit interpreted the
meaning of “contrary to” and “unreasonabl
application of.” tig

[A] decision is “contrary to” precedent only

when, either through a decision of pure law
or the application of law to facts indistin-

Id.

“ee wees, Sand (aa. Br athe a

ee
. .

Mapes... «

a“

TT

or when that decision recognizes the cor-
rect principle from the higher court’s. pre-
, cedent, but unreasonably applies that prin-
ciple to the facts before it (assuming the
facts are insufficiently different from those
that give rise to the precedent as to consti-
tute a new context for consideration of the
Id. : a ; eg
Section 2254(d)(2) dictates the standard of
review applicable to claims based on pure
questions of fact. When a petition for habe-
as relief is based on a challenge to a factual
determination, before granting an application
for a writ, the federal court must find that
the state decision was based on an unreason-
able determination of the facts in light of the
evidence presented in state court. 28 U.S.C.
§ 2254(d\(2).. In addition, factual determina-
tions made by a State court shall be pre-
sumed to be correct.and the petitioner has
the burden of rebutting that presumption by
clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).

A. . The trial court’s failure to allow con-
sideration of Petitioner’s parole ineli-
gibility violated his rights under the
Eighth and Fourteenth amendments
(The Simmons claim).

The Magistrate Judge recommended that

monwealth, 248 Va. 518, 450 S.E.2d 360,

limited the application of Simmons v. South
Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129

verdict. (R & R 113.) Respondent objects
porte demi Magistrate Judge clearly

. - 24> RAMDASS y.: ANGELO 363
Cite as 28 F.Supp.2d 343 (E.D.Va. 1

See 28 U.S.C. § 2254(d(1). Petitioner’ does
not object to the Magistrate Judge’s recom-
mendation, but expresses two (2) issues of
concern.'' First, Petitioner notes that, to the
extent that Virginia state law was interpret-
ed, the Magistrate Judge’s decision was ap-
propriate because. the Virginia Supreme
Court’s decision was “so arbitrary or capri-
cioys as to constitute an independent due
process or Eighth Amendment violation.”
See Richmond v. Lewis, 506. U.S. 40, 50, 113
S.Ct. 528, 121 L.Ed.2d 411 (1992). Second,
Petitioner clarifies that the right to inform
the jury of his parole ineligibility status
stemmed from both the Eighth Amendment
and the Fourteenth Amendment.

The Court finds that the judgment of the
Virginia Supreme Court resulted in a deci-
sion that is based on an “unreasonable deter-
mination of the facts in light of the evidence
presented in the State court proceeding” and
involved an “unreasonable application” ‘of
Simmons as determined by the Supreme
Court of the United States. Accordingly,
Respondent’s objection is OVERRULED.
For the following reasons, the application for
a writ of habeas corpus is GRANTED and
Petitioner's case remanded to the Circuit
Court for Fairfax County for resentencing.

1. Simmons v. South Carolina
Simmons represents the most recent in a
series of cases incrementally refining the
process of applying the death penalty by
expanding, first, the sentencer’s knowledge,
and second, an accused’s right to respond to
arguments advanced by the sovereign in sup-
port of the imposition of the death penalty.
The theme in all of the cases is dual. First,
due process requires that a defendant be
permitted to introduce, and the sentencer
consider, all relevant evidence that may be
viewed in a mitigating light by the sentencer.
See McCleskey v. Kemp, 481 U.S. 279, 107
S.Ct. 1756, 95 L.Ed.2d 262 (1987); Skipper v.
South Carolina, 476 U.S. 1, 106 S.Ct. 1669,
90 L.Ed.2d 1 (1986); Barclay.v. Florida, 463
U.S. 989, 108 S.Ct. 3418, 77 L.Ed2d 1134
(1983); Eddings v. Oklahoma, 455 U.S. 104,
__ ty because such an issue is a mixed question of

mined that argument to be procedurally default-
«ed, Seesupralll.G.. . .; °..! pile

364 @* FEDERAL SUPPLEMENT, o MD

102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett 2.
Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978). Second, a defendant must have
sentencer relies in imposing the death penal-
ty, see Simmons; Gardner v. Florida, 430
US. 349, 97 S.Ct. 1197, 51 L.Ed2d 393
(1977), and the opportunity to rebut ~'the
Lockett; Gardner. In addition” to~ these
the court, to the sentericer, is constitutionally
encouraged, California v. Ramos, 463 US.
992, 103 S.Ct. 3446, '77 L.Ed.2d 1171 (1993),

without regard to how the information may
be received and, in the context of the ability
of a defendant, necessarily, to be able to
respond. . ’ ‘ ° °

In Stmmons, the defendant was convicted
of the murder of an elderly woman. The
state relied solely on “future dangerousness”
as the basis upon which the. jury should
consider whether the defendant should be
sentenced to’ death or given life imprison-
ment as punishment for his crimes. Sim-
mons, 512 U.S. at 157, 114 S.Ct. 2187. The
petitioner, however, presented evidence that
his future dangerousness was limited to el-
derly women and, therefore, the jury would
have no reason to expect violent acts from
him in prison. Jd at 158, 114 S.Ct. 2187.
Further, the petitioner requested that the
court instruct the jury that, in his case, “life
imprisonment” did not permit parole. Jd
“To buttress his request, [the] :petitioner
proffered, outside the presence of the jury,
evidence conclusively establishing his parole
ineligibility,” id, and, additionally, Petitioner
presented evidence that (1) jurors believe ‘a

-

for the balance of his natural life.. Jd at
159-60, 114 S.Ct. 2187. rte we
During deliberations in the sentencing
‘of parole. Jd. at 160,114 S.Ct. 2187. “The
parole in reaching its verdict and further
said, “the terms life imprisonment and death
‘sentence are to be understood in their plain
and ordinary meaning.” .Jd. Twenty-five
minutes later, the jury returned with the
sentence of death. Jd .

The issue before the United States Su-
preme Court was whether the jury was enti-
tled to know that the petitioner was ineligible
for parole. In a seven to two opinion, the
Court concluded that the jury was so enti-
tled. Justice Blackmun, writing for the
rality, stated: . é

In assessing future dangerousness, the ac-

tual duration of the defendant’s prison sen-
tence is indisputably relevant. Holding all
other factors constant, it is entirely reason-
able for a sentencing jury to view a defen-
dant who is eligible for parole as a greater
threat to society than a defendant who is

_ assurance of a defendant’s future nondan-

gerousness to the public than the fact that
he never will be released on parole. The
trial court’s refusal to apprise the jury of
information so crucial to its sentencing de-
termination, particularly when the prose-

_cution alluded to the defendant’s future

dangerousness in its argument to the jury,

_ cannot be reconciled with our well-estab-

lished precedents interpreting the Due
Process Clause.

7 the jury's attention—by way of argue when the jury asked the question of

Id. at 177, 114 S.Ct. 2187.

Id. at 168-64, 114 S.Ct. 2187. The opinion
Sea? Gk ee further stated: “[TJhe jury was left to specu-
onment' eventually be released late about petitioner's parole eligibility when
prison and (2) jurors indicate that the evaluating petitioner’s future dangerousness,
amount of time a convicted murderer would -

ey and was denied a straight answer about peti-
actually spend in prison is an important fae- isan, parole eligibility even when it wes
rae 1d requested.” Id. at 165-66, 114 S.Ct. 2187.

. : ea _ Justice O’Connor, in an opinion concurring
The trial court, however, denied the peti- in the judgment and joined by Chief Justice
tioner’s request for an instruction regarding Rehnquist and Justice Kennedy, stated: x
nied a request for an instruction which indi- _. dant’s future dangerousness, however, the
cated that the petitioner would remain in jail fact that he will never be released from

42

by defense counsel or an instruction

| tion of the offenses specified in subdivi-

sions (I), (i), or (iii) when such offenses

the court—as a means of responding tothe there was ' PossiPal death,” Petitioner had

: ; i ’ . the jury
life impriso t without possibility of pa 53.1-151(B1) because even though th

role and the prosecution argues that the

defendant will pose a threat to society tm

that sentence was, in fact, not imposed

) two and one-half
18, 1993,
the future. until February

2. . “Unreasonable determination of
facts”

[20] In this case, on January 29, rae

the time of the j s question, Petitio

had been tried and convicted by another Jury

In its decision, the Virginia Supreme i.
relied upon section §3.1-151(B1) of the Virg
nia Code, the statutory language establishing

person of three separate
felvay offenses of (1) murder, (i) rape oF
(ii) robbery by the bart
February 18

weeks after conclusion of the death sentence
the trial. Ramdass, 450 S.E.2d at 361.

An obvious question arises from the court's

the court had
ineligibility for parole (because
not Sou a sentence), how oa
Petitioner’s immediate offenses for whi

jury was determining the sentence ¢

logical rea-
iction? The Court finds no ogical F
pene the exclusion of the Domino s Pizza

the Court finds that the
ture of the Dominos Pizza
eure is factually indistinguishable from

j law
minatio facts when applying the
to jeer Petitioner was parcle

366 28 FED ‘SUPPLEMENT, 2d SERIES

ing question into the court: “ifthe Defendant isn’t it, Mr. Piotrowski?” .(/d at 279.) In ‘
is given life, is there a possibility of parole at response, defense counsel acknowledged that —
some time before ‘his © natural: death?” such an instruction had been given in -the

(1/29/98 Tr. at 278.) “At the time of Petition- past, but further. responded:’.“I think a situa- ©

er’s trial, Virginia law precluded informing a tion like this, when you're ‘talking about a

jury, even in response'to a requést'forinfor- death case, when the issue’s this‘¢rucial, that
mation, about a defendant’s parole’ status and something more than that is necessary be-

whether defendant was parole - eligible. causé ‘their ‘concern is’ parole - which ‘they
Mueller v. Commonwealth, 244 Va. 386, 422 aren't allowed to’be tdld about.” ‘(1/29/98 Tr.
S.E.2d 380 (Va.1992).° ~” OR | : .
The Commonwealth's immediate response Weslth’s “objection” .and informed the Jury
to the jury’s question was to advise the court that they should impose what they felt was a
of the language of the Model Jury Instryc- air and just sentence and not concern them-
tion 2.7000 which stated: “you are-to decide elves ‘With the consequences. The jury re-
what a just punishment is and not to concern sponded by recommending that Petitioner be
yourself with -what happens thereafter.” ‘Sentenced to death (/d at 281.)
(1/29/98 Tr. at, 278.) In response thereto, (Qn direct appeal, Petitioner argued that
Petitioner’s counsel made the following state- the trial court committed error in refusing to
ments: te ' respond to the jury question in a way that
MR. PIOTROWSKI: Your “Honor, obvi- would make the jury aware that he would be
ously I don’t think that that answer is ineligiblé for parole upon his conviction of
sufficient for the circumstances. I’m try- capital murder, in derogation of the Eighth
ing to suggest the wording and I anticipat- and Fourteenth Amendments to the United
ed this question and*I hoped to have it States Constitution. The assignment of er-
written out for you, I don’t, I’m trying to ror was rejected on direct appeal. Ramdass,
formulate it in my mind right now. +450 S.E.2d at 361. eo
| believe that the Court [sic] should be iti ‘naeking Horan
told that they can not concern themselves sen ae ean tee eens ee
with what will occur after they impose issue was raised in the context of the court’s
thelr sentenes. refusal to inform the jury of Petitioner's
I feel, however, Your Honor, though that parole status. That petition for certiorari
the question itself implies that they have a was granted. On remand, the sole issue
perception that if they give a life sentence before the Virginia Supreme Court was
that he will be out in a very short period of “yhether the Due Process Clause of the
time. _-.. +. Fourteenth Amendment was violated by the
I’m looking for some kind of language _ refusal of the trial judge to instruct the jury
that would balance out that perception. A that the defendant was ineligible for parole
suggestion that I have here in front of me when the prosecution relied on future dan-
is—I wrote as we talked, is that “You must gerousness to justify imposition of the death
not concern yourself with matters that will penalty.” (App. Brief at ii, Appeal to Va.
ener a ee SOL agi 6 eek
you may impose your sentence Ce Regt ep ; owe.
the legal sentence imposed in the case.” a ee
I'm open to any other suggestions. ag . a * np sane sera
(29/93 Tr. at 278-79.) | decided that Simmons was not an issue be-
The court responded by quoting the Virgi- cause Petitioner was not parole ineligible on
nia Model Jury Instruction and stating to January 29, 1993. Ramdass v. Common-
defense counsel that “that’s what the law is; tvealth, ‘248 Va. 518, 450 S.E.2d 360 (1994).
13. At this point, trial counsel was not obligated was riot constitutionally defective for failing to
to offer or argue for a specific instruction con- anticipate ‘a new rule of law. United States v.
trary to controlling Virginia law, and counsel Pn McNamara, 74 F.3d 514 (4th Cir.1996).

a

at 280.) The court ‘sustained the Common- -

SPP eVUePrseseR, STEED

i+. RAMDASS —- , 367

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

Writing for the court, Justice Whiting stated,
in pertinent part: Sx.¢ “Sots.
At the time that the jury was consider-
ing Ramdass’s penalty on” January 30,
1993, Ramdass was not ineligible for parole
since he had only two “separate felony
offenses” within the meaning” of Code
§ 53.1-151(B1). They were: ~~

§ 53.1-151(B1). See Smith v. Common-
wealth, 134 Va. 589, 592-93, 113 S.E. 707,
709 (1922\jury’s verdict of conviction upon
which no judgment had been entered not
convietion within meaning of statute is
qualifying person from holding public -
fice). Since Ramdass was not ineligible for
parole when the jury was considering his
sentence, the Simmons decision does not
affect his death sentence.

Id. at 361.

Petitioner’s case is not unlike the Sim-
mons case. In both, the prosecution relied

that Petitioner was parole eligible and de-
spite the United States Supreme Court's ad-
monition that, juries should. not be left to

imprisonment. This, the Court finds to be
an unreasonable application of Simmons.

one was aware that, at the time of the capital
sentencing phase, Petitioner had either plead
guilty or been found guilty by a jury of at
least three qualifying felony offenses under
Virginia Code Section §3.1-151(B). Indeed,
these offenses were relied upon to establish
Petitioner's future dangerousness. The jury

"For the aforementioned reasons, the Court
finds that the judgment of the Virginia Su-

(SERGE creme newer: cei SER Rr RN

368 28 FEDERAL SUPPLEMENT, 24 SERIES

“14 RAMDASS — . 369

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998) :

preme Court resulted in a decision that is and the preserved claim of ineffectiveness
based on an “unreasonable determination of for failure to produce intent evidence. Only
the facts in light of the evidence presented in the latter will be addressed here. Petition-
the State court proceeding” and involved an er’s claim that his trial counsel was ineffec-
“ynreasonable application” of Simmons a8 tive for failing to produce intent evidence is
determined by the Supreme Court -of the comprised of four (4) underlying claims: (D
United States. Accordingly, Respondent's Petitioner was unreasonably advised not to

tance of counsel in violation of his examiner, (iii) trial counsel failed to cross

. | oe ; t Cir.1991), and that even if trial counsel
rights under the Fifth, Sixth, Eighth examine the prosecution's firearms identifi- a the sentencing phase does not vitiate the —_

vd Fourteenth amendments. | ~ cation expert; and (iv) trial counsel failed to : atperl nd ee os oi ~ ng eye pee Se

titioner asserts numerous claimis of inef- obtain an expert who would help them pres- phase trigger pulled binned fury wes |

et ed sums tpn enemy dean Come | , oes Sa ae at be ta et US Bi, We SO. 2273, 10
ineffective assistance of counsel, a litigant quarter- : : L.Ed.2d 80 (1988). Accordingly, Petitioner’
must prove both a aunaa miiaeneh backing,” the Magistrate Judge concluded aoe on is OVERRULED. ‘
and (2) prejudice.” Lockhart v. Fretwell, 506 thet ench of the dais was without meri. | @ ‘Trial counsel failed to object to co- With respect to Petitioner's claim that trial
US. 364, 369, 118 S.Ct. 888, 122 L.Ed2d 180 (22) With respect to the first and second defendant's testimony about his life counsel failed to adequately voir dire all the

(1998); Strickland v. Washington, 466 U.S. sub-issues, Petitioner objects arguing that
668, 687, 104 S.Ct. 2052, 80 L.Ed2d 674 the Magistrate Judge failed to consider the

, gating factors, the Magistrate Judge men-
11984). To prove deficient performance, a affidavits of trial counsel wherein it was stat- (24) Citing Coppola v. Commonwealth, aa .

. ff ti p assistance to permit co-defendant that of the “ . .
- testif ‘ ~ os some jurors indicated that they
Singh to regarding his life * would not consider age or education to be

must show that counsel’s performance fell Garrison, 724 F.2d 1425, 1436 (4th Cir.1983).
below an objective standard of reasonable- Therefore, the first prong is not satisfied
ness. Id. at 688, 104 S.Ct. 2052. To prove because the performance did not fall below
prejudice, the litigant must show that “there the objective standard of reasonableness.
is a reasonable probability that, but for coun- [23] With respect to the third sub-issue,
sel’s unprofessional errors, the result of the Petitioner objects arguing that the firearms
ing would have been different.” /d identification expert was never qualified as a
at 694, 104 S.Ct. 2052. Failure to meet “pallistics expert,” yet he testified about bal-
either prong defeats a litigant’s ineffective istics matters, and, further, that trial counsel
euhtanse & espana? Id. at 700, 104 sdmits in his affidavit that he failed to inter-
S.Ct. 2062. A court not address both view the expert and erroneously allowed him
components of the test if the litigant makes to testify outside his qualifications, thereby
an insufficient showing on one part of the substantially proving the prosecution’s case.
test. Id at 697, 104 S.Ct. 2052. Upon review, the Court finds that the Magis-
trate Judge’s reasoning on these issues is

eligible for the the trial court's instructions regarding miti-
penalty. VaCode § 182-18. Never- gating factors. (Tr. 1/26/98 111-13, 118-19,

1. Trial counsel's trial strategy was nO" proper. (R & R 45-63.) Neither the Court's Petitioner. , Petitioner's objec- Accordingly, Petitioner’s objection is OVER-
existent or internally inconsistent. nor trial counsel’s hindsight is a basis upon tion is OVERRULED. RULED.
This claim consists of two parts: the pro- which to find that an unsuccessful trial tactic : ; ,
cedurally defaulted claim of ineffectiveness constitutes deficient performance. Bell v. $. Trial counsel failed to conduct ade- 4. Trial counsel conceded the sole aggra-
for presentation of inconsistent defenses Bvatt, 72 F.3d 421, 429 (4th Cir-1995). quate voir dire anne nee.
wr ae 2) «es With to Ross, Powell and Amielia, (25) During sentencing, trial counsel
14. If the claim were not procedurally defaulted, on, 891 F.2d 490 (4th Cir-1989). | the Magiotrate Judge conchaded that trial ed in his opening that Petitioner was a bad

to Clozza v. Murray, 913 F.2d 1092)'1098
(4th Cir.1990), the statements did not ‘consti-

acceptable only in some cases and that this is
not such a case because trial counsel con-

pointed mental-health expert's background,
thereby learning of his allegedly pro-prosecu-
tion bias, and for not objecting to the trial
court’s selection. Even assuming that coun-
sel was deficient in not objecting to the
Petitioner was not prejudiced. Under Ake v.
Oklahoma, 470°U.S. 68, 105 S.Ct. 1087, 84
L.Ed2d 53 (1985), an indigent defendant is
entitled to the appointmentof a mental
health expert when his legal sanity is likely
to be a significant issue at trial Va.Code.
§ 19.2-264.3:1 provides in pertinent part:

quently, the adoption of such a rule at this
point in Petitioner’s case would be a new rule
which, generally, should not be created on
collateral review. Saffle v. Parks, 494 US.
484, 488, 110 S.Ct. 1257, 108 L.Ed2d 415
(1990). Accordingly, the objection is OVER-
RULED. foo | r

E. The trial court’s refusal to allow Peti-

The Magistrate Judge determined that the tioner exculpatory statements, the tri-
trial court was within its discretion in deny- al court’s refusal to review such state-
ing the requests for a medical doctor and ments in camera and the prosecutor's
expert investigator. (R & R 63.) Petitioner improper refusal to provide exculpato-

required to prove beyond a reasonable doubt. — pom — whom phen
tal murder and (ii) a finding by the court

mance. Trial counsel's theory was that ‘no that the defendant is financially unable to objects to the finding as to the medical ex- ry statements denied Petitioner his
one could know whether Petitioner might pay for expert assistance, the court shall pert. Petitioner argues that the trial court's Fifth, Sixth and Fourteenth amend-
commit crimes if he. was on the street, but appoint one or more qualified mental denial of a medical expert on the grounds ment rights.
that Petitioner did not represent a future ee ee that “no medical evidence had been present- Neither party objected to the Magistrate
danger to society because he would spend - to assist the defense in the prepara- ed was an exercise in pretzel logic.” The Judge's determination of this claim. Accord-
the rest of his natural’ life in jail for the tion and presentation of information con- Court finds that the trial judge’s decision was ingly, the Court adopts the, Magistrate
__ string of crimes for which he had been con- cerning the defendant's history, character, not unreasonable in light of the lack of evi- Judge's rationale, (R & R 70-73.), which is
victed. | or mental condition, including (i) whether dence Petitioner presented to justify his need reiterated herein in pertinent part. For the

The allegedly improper statements the defendant acted under extreme mental
: : or emotional disturbancé at the time of the
constitute deficient performance. According- offense; (i) whether the capacity of the
- defendant to appreciate the criminality of
ee ee ee ae
the requirements of the law was signifi-
Pe penalty phase. cantly impaired at the time of the offense;
J, 1 consisted of two arguments: tors in mitigation relating to the history or
CO Et ots cee character of the defendant or the defen- :
a mental health expert and other = dant’s mental condition at the time of the
miscellaneous claims. For the reasons stat- offense.

the C do atau =. The court-appointed expert neither found
) ~ogh ne i that Petitioner’s sanity was at issue nor de-
Trial ’ wid of Petiti termined that Petitioner’s history or charac-
er’s dysf ional cil iO zh testi - ter was a mitigating factor. Evidence re-
ny by Petitioner, Petitioner’s brother and garding Petitioner's history and character,
mother and a probation officer who had ve om aah pro re
such evidence in a different manner, trial ee OE ee
counsel's choice does not constitute deficient anmprtie remger gene om age A aoe
performance. of these evaluations presented through
[27] With respect to the mental health the probetion effleer. Fh
. Finally, at no time has
expert, Petitioner objects to the Magistrate a mental evaluation of Petitioner revealed
Judge’s conclusion, arguing that trial counsel evidence that Petitioner was (or is) operating
was ineffective for not researching the ap- under a mental disease or defect which would

for medical evaluation. Accordingly, Peti- folowing reasons, the Court finds this claim
tioner’s objection is OVERRULED. to be nonmeritorious. ;
D. P om ‘nd [29] Petitioner’s claim has three compo
. Petitioner arbitrarily unrea- nents. The first is the denial of polygraph
ee Oe penne results which trial counsel sought to use for
Sixth, Eighth ourteenth impeachment purposes. The second compo-
amendments to make an ex parte nent consists of statements made to the po-

a
é
E
i
B
8

that this claim was without merit because and inconsistent statements made by co-de-
there was no constitutional entitlement to ez fendants. The third is the trial court’s refus-
parte hearings on requests for the appoint- al to conduct an in camera review. With
ment of experts, and, if there is, such right respect to the first claim, polygraph material
would constitute a new rule that was not in is inadmissible under Virginia law, Robinson
place at the time of Petitioner's trial. (R& v. Commonwealth, 231 Va. 142, 341 S.E.2d
R 68.) Petitioner objects arguing that the 159, 167 (1986). Moreover, failure to disclose
requirement of an ex parte proceeding is polygraph results does not deprive a defen-
firmly established by both the Supreme dant of “material” evidence under the Brady

missible, even for impeach 2nt purposes, as
_ Under federal criminal procedure, when a in the C ith of Vi,~'a. Wood ».

defendant requests expert assistance, there >, o/omew, 516 U.S. 1, 116 S.Ct. 7, 188

forced to disclose its evidence and strategy to material sought must be “material.” Brady
the prosect In Ake, 470 US.’ 68, 105 ». Maryland, 373 U.S. 88, 87, 83 S.Ct. 119%,
S.Ct. 1087, 84 L.Ed2d 58, the United States 10 L.Ed2d 215 (1963). Evidence is “materi-

have been different. Wood, 516 US. at 5,
116 S.Ct. 7. A “reasonable probability” that

the United States Supreme Court noted in
Estelle v. McGuire, 502 U.S. 62, 112 S.C’
475, 116 L.Ed.2d 385 (1991), a federal court’s
habeas review is not / “nded to address
issues of state criminal nrocedure and evi-
dence. Accordingly, Petitioner's objection 's

sion v. Murray, 41 F.3d 920, 927 (4th Cir.1994);
United States v. Wilson, 901 F.2d 378, 7.08

Yes Fes %

Bs,
‘~* "
>
a

oF

a >

_.RAMDASS y.:ANGELONE - > 373

Cite as 28 F.Supp.2d 343 (E.D.Va. 1998)

criminal conduct in the sentencing phase. (R
& R 86.) Citing Nichols v. United States,
511 US. 788, 114 S.Ct. 1921, 128 L.Ed.2d 745
(1994), Petitioner objects arguing that the
federal constitution requires that the prose-
cution prove by a preponderance of the evi-
dence that the defendant committed the
unadjudicated conduct. 'n Nichols, the Su-
preme Court held that the federal due pro-
cess clause requires in a non-capital, federal
action that previous conduct being used to
enhance a sentence be proved by a prepon-
derance of the evidence. Jd 114 S.Ct. at
1928. on

[32] The Court finds that Petitioner’s ar-
gument, if accepted, would create a new rule
which was not in effect at the time his convic-
tion became final. Sajffle, 494 U.S. at 488,
110 S.Ct. 1257. The, United States Supreme
Court has repeatedly refused to determine
the issue of whether unadjudicated criminal
conduct can be introduced in the sentencing
phase of a capital trial’ At the time of
Petitioner’s trial, Virginia statutory law per-
mitted the introduction of such evidence
when certain notice requirements are met.
Watkins v. Commonwealth, 229 Va. 469, 331
S.E.2d 422, 435 (Va.1985); see also Gray v.
Thompson, 58 F.3d 59, 63 (4th Cir.1995).
Virginia law, however, did not require that
the prosecution prove the conduct by any
standard. See Beaver v. Commonwealth, 232
Va. 521, 352 S.E.2d 342 (Va.1987). Because
federal courts generally do not create new
rules or apply new constitutional rights on
collateral review, Saffle, 494 U.S. at 488, 110
S.Ct. 1257, Petitioner’s claim must fail. Ac-
cordingly, Petitioner’s objection is OVE
RULED. ty

1. Virginia’s capital murder sentencing
statute is unconstitutional.
[33] The Magistrate Judge determined
that this claim is nonmeritorious. (R & R 77-
85.) Petitioner generally objects without

that the states are divided .
1993, six (6) states permit the ‘use of such evi-
dence almost without limitation; ten states re-

Judge’s reasoning. The Court finds that the
claim is nonmeritorious as the statute is not
unconstitutionally vague. The Fourth Cir-
cuit has denied Plaintiffs preserved claims
that the “future dangerousness” prong of.the
Virginia capital sentencing statute is uncon-
stitutional on that ground. See Gray v.
Thompson, 58 F.3d 59, 63 (4th Cir.1995)
(finding that “future dangerousness” may be
determined using unadjudicated misconduct);
Tuggle v. Thompson, 57 F.3d 1356, 1362 (4th
Cir.1995) (stating that Virginia is a “non-
weighing” state, i.e. its statutory scheme nar-
rows the class of persons eligible for death
penalty and a weighing instruction is not
required by the federal Constitution); Spenc-
er v. Murray, 5 F.3d 758 (4th Cir.1993) (find-
ing that “future dangerousness” prong is not
vague). Accordingly, Petitioner’s objection is
OVERRULED.

V. REQUEST FOR EVIDENTIARY
HEARING
Whether an evidentiary hearing is re-
quired is determined in light of the petition,
the answer, the transcript and record of state
court proceedings, and any expanded record
evidence. See Rule 8, Rules Governing
§ 2254 Cases. If a hearing is not required,
“the judge shall make such disposition of the
petition as justice shall require.” The Court
finds that the facts presented in the record,
transcripts of the state court proceedings,
the affidavits of trial counsel and experts,
and the arguments presented in the plead-
ings lead to the conclusion that an evidentia-
ry hearing is not required to address the
claims raised by Petitioner. Accordingly, the
request for an evidentiary hearing is denied.
ry
VI. CONCLUSION

The Court, having examined the objections
to the Magistrate Judge’s R & R, and having
reviewed the record and conducted a de novo

review of those portions objected to, does
hereby order that the petition be GRANTED

374

and that Respondent's ‘motion toons be
DENIED. ''Petitioner’s case’:is REMAND-
ED to the ‘Circuit Court of Fairfax ‘County
for re-sentencing in light of the’ Court's rul-
ings herein. ae. , ha SBE
‘ItissoORDERED. =

ey

. Ciomee

David G. LAMB, Plaintiff, .
‘QUALEX, INC., Defendant.
No. Civ.A. 3:98CV413.
United States District Court,
_E.D. Virginia,
Richmond Division.

Dec. 16, 1993.

Former employee with depression
brought action against former employer al-
leging violations of the Americans with Dis-
abilities Act (ADA). Employer moved for

iad t The District Court
Richard L: Williams, Senior District Judge,
held that: (1) employee was judicially es-
topped from claiming to be a qualified indi-
vidual with a disability under ADA, and (2)
employer was not liable to employee under
ADA.

Motion granted.

1. Estoppel €=68(2) .
“Judicial estoppel” is an equitable doc-
trine that prevents a party who has success-

- fully taken a position in one proceeding from

ating Soggy gue 2 Ae
proceeding. ”
dee entities Waite alk Gade
ee ee ee,
Ryerss $i
Aggies oh pitti ciiigel iii
priate in ADA action when the prior proceed-

28 FEDERAL SUPPLEMENT, 2d SERIES

ing is a Social Security Administration (SSA)

application ‘for disability benefits. Ameri- ‘
cans with Disabilities Act of 1990, § 2 et seq. ;

42 US.C.A. § 12101 et seq.
3. Estoppel 68(2)

‘
‘

Former employee suffering from depres- |

sion was judicially > > ° > > = > > ° > > > c. 327;
1970, c. 648; 1975, c. 244; 1976, cc. 145, 209, 425; 1977, cc. 344, 546, 570; 1979, c. 411; 1981,

c. 392; 1982, cc. 270, 636; 1985, c. 555; 1987, c. 668; 1988, c. 872; 1990, cc. 220, 684:
423; 1993, cc. 485, 491, 907.) ’ > , cc. 220, 684; 1991, c.

Code 1950, s 53.1-151
VA ST s 53.1-151

er

u

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works
SC ST § 16-3-20
Code 1976 § 16-3-20

CODE OF LAWS OF SOUTH CAROLINA 1976 ANNOTATED
TITLE 16. CRIMES AND OFFENSES
CHAPTER 3. OFFENSES AGAINST THE PERSON
ARTICLE 1. HOMICIDE
COPYRIGHT © 1998 BY THE STATE OF SOUTH CAROLINA
Current through End of 1998 Reg. Sess.

§ 16-3-20. Punishment for murder: separate sentencing proceeding to determine whether
sentence should be death or life imprisonment.

(A) A person who is convicted of or pleads guilty to murder must be punished by death, by
imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years. If the
State seeks the death penalty and a statutory aggravating circumstance is found beyond a
reasonable doubt pursuant to subsections (B) and (C), and a recommendation of death is not
made, the trial judge must impose a sentence of life imprisonment. For purposes of this section,
"life imprisonment" means until death of the offender. No person sentenced to life imprisonment
pursuant to this section is eligible for parole, community supervision, or any early release
program, nor is the person eligible to receive any work credits, education credits, good conduct
credits, or any other credits that would reduce the mandatory life imprisonment required by this
section. No person sentenced to a mandatory minimum term of imprisonment for thirty years
pursuant to this section is eligible for parole or any early release program, nor is the person
eligible to receive any work credits, education credits, good conduct credits, or any other credits
that would reduce the mandatory minimum term of imprisonment for thirty years required by this
section. Under no circumstances may a female who is pregnant be executed so long as she is
pregnant or for a period of at least nine months after she is no longer pregnant. When the
Governor commutes a sentence of death to life imprisonment under the provisions of Section 14
of Article IV of the Constitution of South Carolina, 1895, the commutee is not eligible for parole,
community supervision, or any early release program, nor is the person eligible to receive any
work credits, good conduct credits, education credits, or any other credits that would reduce the
mandatory imprisonment required by this subsection.

(B) When the State seeks the death penalty, upon conviction or adjudication of guilt of a
defendant of murder, the court shall conduct a separate sentencing proceeding. In the proceeding,
if a statutory aggravating circumstance is found, the defendant must be sentenced to either death
or life imprisonment. If no statutory aggravating circumstance is found, the defendant must be
sentenced to either life imprisonment or a mandatory minimum term of imprisonment for thirty
years. The proceeding must be conducted by the trial judge before the trial jury as soon as
practicable after the lapse of twenty- four hours unless waived by the defendant. If trial by jury
has been waived by the defendant and the State, or if the defendant pleaded guilty, the sentencing
proceeding must be conducted before the judge. In the sentencing proceeding, the jury or judge
shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment. Only
such evidence in aggravation as the State has informed the defendant in writing before the trial is
admissible. This section must not be construed to authorize the introduction of any evidence

7i

secured in violation of the Constitution of the United States or the State of South Carolina or the
applicable laws of either. The State, the defendant, and his counsel are permitted to present )
arguments for or against the sentence to be imposed. The defendant and his counsel shall have

the closing argument regarding the sentence to be imposed.

(C) The judge shall consider, or he shall include in his instructions to the jury for it to consider,
mitigating circumstances otherwise authorized or allowed by law and the following statutory '
aggravating and mitigating circumstances which may be supported by the evidence: ;

(a) Statutory aggravating circumstances:
(1) The murder was committed while in the commission of the following crimes or acts:

(a) criminal sexual conduct in any degree;

(b) kidnapping;

(c) burglary in any degree;

(d) robbery while armed with a deadly weapon;

(e) larceny with use of a deadly weapon;

(f) killing by poison;

(g) a trafficking as defined in Section 44-53-370(e), 44-53- 375(B), 44-53-440, or 44-
53-445;

(h) physical torture; or

(i) dismemberment of a person.

(2) The murder was committed by a person with a prior conviction for murder.

(3) The offender by his act of murder knowingly created a great risk of death to more than one
person in a public place by means of a weapon or device which normally would be hazardous
to the lives of more than one person.

(4) The offender committed the murder for himself or another for the purpose of receiving
money or a thing of monetary value.

(5) The murder of a judicial officer, former judicial officer, solicitor, former solicitor, or other
officer of the court during or because of the exercise of his official duty.

(6) The offender caused or directed another to commit murder or committed murder as an
agent or employee of another person.

(7) The murder of a federal, state, or local law enforcement officer, peace officer or former -
peace officer, corrections employee or former corrections employee, or fireman or former
fireman during or because of the performance of his official duties.

(8) The murder of a family member of an official listed in subitems (5) and (7) above with the
intent to impede or retaliate against the official. "Family member" means a spouse, parent,
brother, sister, child, or person to whom the official stands in the place of a parent or a person
living in the official's household and related to him by blood or marriage.

72

(9) Two or more persons were murdered by the defendant by one act or pursuant to one
scheme or course of conduct.

(10) The murder of a child eleven years of age or under.

(11) The murder of a witness or potential witness committed at any time during the criminal
process for the purpose of impeding or deterring prosecution of any crime.

(b) Mitigating circumstances:

(1) The defendant has no significant history of prior criminal conviction involving the use of
violence against another person. |

(2) The murder was committed while the defendant was under the influence of mental or

(3) The victim was a participant in the defendant's conduct or consented to the act.

(4) The defendant was an accomplice in the murder committed by another person and his
participation was relatively minor.

(5) The defendant acted under duress or under the domination of another person.

(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was substantially impaired.

(7) The age or mentality of the defendant at the time of the crime.
(8) The defendant was provoked by the victim into committing the murder.
(9) The defendant was below the age of eighteen at the time of the crime.

(10) The defendant had mental retardation at the time of the crime. "Mental retardation”
means significantly subaverage general intellectual functioning existing concurrently with
deficits in adaptive behavior and manifested during the developmental period.

The statutory instructions as to statutory aggravating and mitigating circumstances must be
given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a
recommendation of death, shall designate in writing, and signed by all members of the jury,
the statutory aggravating circumstance or circumstances which it found beyond a reasonable
doubt. The jury, if it does not recommend death, after finding a statutory aggravating
circumstance or circumstances beyond a reasonable doubt, shall designate in writing, and
signed by all members of the jury, the statutory aggravating circumstance or circumstances it
found beyond a reasonable doubt. In nonjury cases the judge shall make the designation of the
statutory aggravating circumstance or circumstances. Unless at least one of the statutory
aggravating circumstances enumerated in this section is found, the death penalty must not be
imposed.

73

Where a statutory aggravating circumstance is found and a recommendation of death is
made, the trial judge shall sentence the defendant to death. The trial judge, before imposing
the death penalty, shall find as an affirmative fact that the death penalty was warranted under
the evidence of the case and was not a result of prejudice, passion, or any other arbitrary
factor. Where a statutory aggravating circumstance is found and a sentence of death is not
recommended by the jury, the trial judge shall sentence the defendant to life imprisonment as
provided in subsection (A). Before dismissing the jury, the trial judge shall question the jury
as to whether or not it found a statutory aggravating circumstance or circumstances beyond a
reasonable doubt. If the jury does not unanimously find any statutory aggravating
circumstances or circumstances beyond a reasonable doubt, it shall not make a sentencing
recommendation. Where a statutory aggravating circumstance is not found, the trial judge
shall sentence the defendant to either life imprisonment or a mandatory minimum term of
imprisonment for thirty years. No person sentenced to life imprisonment or a mandatory
minimum term of imprisonment for thirty years under this section is eligible for parole or to
receive any work credits, good conduct credits, education credits, or any other credits that
would reduce the sentence required by this section. If the jury has found a statutory
aggravating circumstance or circumstances beyond a reasonable doubt, the jury shall designate
this finding, in writing, signed by all the members of the jury. The jury shall not recommend
the death penalty if the vote for such penalty is not unanimous as provided. If members of the
jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the
death sentence should be imposed on a defendant found guilty of murder, the trial judge shall
dismiss such jury and shall sentence the defendant to life imprisonment as provided in
subsection (A).

(D) Notwithstanding the provisions of Section 14-7-1020, in cases involving capital punishment a
person called as a juror must be examined by the attorney for the defense.

(E) In a criminal action in which a defendant is charged with a crime which may be punishable by
death, a person may not be disqualified, excused, or excluded from service as a juror by reason of
his beliefs or attitudes against capital punishment unless such beliefs or attitudes would render
him unable to return a verdict according to law.

HISTORY: 1962 Code § 16-52; 1952 Code § 16-52; 1942 Code § 1102; 1932 Code § 1102;
Cr. C.'22 § 2; Cr. C.'12 § 136; Cr. C. 02 § 109; G. S. 2454; R. S. 109; 1868 (14) 175; 1894
(21) 785; 1974 (S8) 2361; 1977 Act No. 177 § 1; 1978 Act No. 555 § 1.

HISTORY: 1985 Act No. 104, § 1, eff May 21, 1985; 1986 Act No. 462, § 27, eff June 3, 1986;
1990 Act No. 604, § 15, eff June 25, 1990; 1992 Act No. 488, § 1, eff July 1, 1992; 1995 Act
No. 83, § 10, eff January 1, 1996; 1996 Act No. 317, § 1, eff May 20, 1996.

EDITOR'S NOTE-—

1990 Act No. 604, § 17, eff June 25, 1990, provides as follows:

"This act takes effect upon approval by the Governor. A person arrested, charged, or indicted
under those provisions of law amended by this act must be tried and sentenced and any
administrative penalty or suspension exacted as provided by the law in force at the time of the
commission of the crime.”

pace SOPRA

EFFECT OF AMENDMENT--

The 1985 amendment rewrote subsection (A) to provide that when a sentence of death is
commuted, the commutee is not eligible for parole. .

The 1986 amendment made grammatical changes; revised subsection (A) by adding the
provision relative to the sentence to be imposed when an aggravating circumstance is found
beyond a reasonable doubt but a recommendation of death is not made, and by substituting
"mandatory imprisonment" for “mandatory twenty years’ imprisonment" in the last sentence,
revised subsection (B) by substituting “trial by jury” for “the trial jury", and by substituting "the
sentence to be imposed” for "the sentence of death" and for "the sentence imposed"; revised
subsection (C) by rewriting subitem (a)(7), by adding subitems (a)(8) and (9), and by adding the
provisions relative to juries which do not recommend death despite finding an aggravating
circumstance beyond a reasonable doubt, questioning the jury, prior to its dismissal, as to whether
it found an aggravating circumstance beyond a reasonable doubt, and designation of such a
finding in a writing signed by all members of the jury; and revised subsection (E) by substituting
“verdict according to law" for "verdict of guilty according to law”.

The 1990 amendment revised subsection (C)(a).

The 1992 amendment, in subsection (C), item (b), added subitem (10).

The 1995 amendment substantially revised this section.

The 1996 amendment in subsection (C), item (a), added subitem (11).

Code 1976 § 16-3-20
SC ST § 16-3-20
END OF DOCUMENT

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0398%3A03. Public record. Not legal advice.