Petition for Writ of Certiorari — Turner v. Jabe

Supreme Court, u.§,

yf + B

941238 .1N 17 1995

No. 7 ;

ee

In THE

Supreme Cont of the Wuited States

OCTOBER TERM, 1994

WILLIE LLOYD TURNER,

Petitioner,

v.

JOHN JABE, Warden,

Greenville Correctional Center,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

HOWARD W. GOLDSTEIN

(Counsel of Record)

MICHAEL F. CoLos!I

FRIED, FRANK, HARRIS, SHRIVER

& JACOBSON

(A Partnership Including

Professional Corporations)

One New York Plaza

New York, New York 10004-1980

(212) 820-8000

Counsei for Petitioner

Willie Lloyd Turner

Co-Counsel:

WALTER J. WALVICK

JAMES VANR. SPRINGER

ADAM PROUJANSKY WM. BRADFORD REYNOLDS

DICKSTEIN, SHAPIRO & MORIN, COLLIER, SHANNON, RILL &

L.L.P. SCOTT

2101 L Street, N.W. 3050 K Street, N.W., Suite 400

Washington, D.C. 20037-1526 Washington, D.C. 20007

(202) 785-9700 (202) 342-8400

DANIEL A. REZNECK ARTHUR F. MATHEWS

KATHLEEN A. BEHAN THOMAS F. CONNELL

ARNOLD & PORTER WILMER, CUTLER & PICKERING

1200 New Hampshire Ave.,N.W. 2445 M Street, N.W.

Washington, D.C. 20036-6885 Washington, D.C. 20037-1420

(202) 872-6700 (202) 663-6500

(Additional Counsel Listed on Inside Cover)

WILSON - Eras PrinTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

ALEXANDER H. SLAUGHTER CARL S. NADLER

J. WILLIAM BOLAND DONALD B. VERRILLI, JR.

McGUIRE, WOODS, BATTLE & JENNER & BLOCK

BOOTHE 601 Thirteenth Street, N.W.

One James Center Twelfth Floor

901 East Cary Street Washington, D.C. 20005

Richmond, VA 23219-4030 (202) 689-6000

(804) 775-1000

QUESTIONS PRESENTED

I.

The Virginia capital murder statute, like that of many

States, permits a jury to impose a death sentence if it

finds “vileness” under any of three predicates—“torture,

depravity of mind or aggravated battery to the victim.”

This Court has indicated that the language of this ag-

gravating factor is unconstitutional on its face absent

curative jury instructions and appellate review. The ques-

tions presented are:

A. Whether this unconstitutional vagueness is cured

by Virginia’s jury instruction defining “depravity of mind”

as “a degree of moral turpitude and psychical debasement

surpassing that inherent in the definition of ordinary legal

malice and premeditation” or by Virginia’s standards of

appellate review, which have never resulted in a reversal

of a death sentence on Eighth Amendment grounds.

B. Whether Virginia’s jury instructions and standards

for appellate review for the “depravity of mind” predicate

assure differentiation among crimes eligible for the death

penalty, thus satisfying the constitutional requirement that

aggravating factors narrow the imposition of capital

punishment.

II.

Whether Petitioner received effective assistance of coun-

sel when his lawyer failed to produce any of the evidence

promised in his opening statement at the sentencing

hearing.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED 0000.2... eeeeeeeees

pe OE RN iy ty oi:

EE ee

ER IE CN

CONSTITUTIONAL AND STATUTORY PROVI-

5 | | FER ee

STATEMENT OF THE CASE ......................................

A. The Virginia Capital Sentencing Scheme _.....

B. Petitioner’s Capital Sentence ............... same

C. Subsequent Proceedings -...00....000000000. ooo eee

REASONS FOR GRANTING THE PETITION _....

I. THE COURTS OF APPEALS ARE IN CON-

FLICT ABOUT THE FURTHER LIMITA-

TIONS CONSTITUTIONALLY REQUIRED

TO PERMIT IMPOSITION OF THE DEATH

PENALTY UNDER THE VILENESS AGGRA-

VATING FACTOR COMMON TO VIRGINIA

AND MANY OTHER STATES .....00000 0...

A. The Courts Of Appeals Have Adopted Incon-

sistent Standards By Which Jury Instruc-

tions Or Appellate Review Could Cure The

Facially Unconstitutional Vagueness Of The

Vileness Aggravating Factor

B. The Court Of Appeals Has Ignored This

Court’s Precedents Requiring Every Aggra-

vating Factor To Narrow The Class Of

Death-Eligible Crimes .............00000.0000-00.o

II. THE COURT OF APPEALS’ REJECTION

OF PETITIONER’S INEFFECTIVE ASSIST-

ANCE OF COUNSEL CLAIM DEPARTS

FROM THE PRECEDENTS IN THIS COURT

AND OTHER COURTS OF APPEALS ...........

aiid ctninitncinennniapeeasneemnaces

om Ww

10

10

12

19

28

IRE eR Separately Bound

iv

TABLE OF AUTHORITIES

Cases Page

U.S. Supreme Court

Arave v. Creech, 113 S. Ct. 1534 (1998) ........00...... 11, 19

Caldwell v. Mississippi, 472 U.S. 320 (1985) .......... 6

Clemons v. Mississippi, 494 U.S. 738 (1990) ........... 16

Godfrey v. Georgia, 446 U.S. 420 (1980) ................. passim

Gregg v. Georgia, 428 U.S. 153 (1976) 2.00000... 11, 13, 20 :

Jurek v. Texas, 428 U.S. 262 (1976) -...000...000000... 11 :

Lewis v. Jeffries, 497 U.S. 764 (1989) ......... eee 11

Maynard v. Cartwright, 486 U.S. 356 (1988) .......... 12, 14 :

Murray v. Giarratano, 492 U.S. 1 (1989) ..00200000.... 27 '

Shell v. Mississippi, 498 U.S. 1 (1990) 20002 .. 15

Strickland v. Washington, 466 U.S. 668 (1984)...... 23, 26

Teague v. Lane, 489 U.S. 288 (1989) ......000020 10

Tuilaepa v. California, 114 S. Ct. 2630 (1994) ........ passim

Turner v. Murray, 476 U.S. 28 (1986) ....200000000000... 6

Walton v. Arizona, 497 U.S. 639 (1990) —......00000.... 18, 15

Zant v. Stephens, 462 U.S. 862 (1983) -....0000202.. 11,19

Other Federal Courts

Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988) _... 23

Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.

1989), vacated and remanded, 500 U.S. 901

(1991), on remand, 946 F.2d 1443 (9th Cir.

1991), vacated and remanded, 113 S. Ct. 367

(1992), on remand, 16 F.3d 981 (9th Cir. 1994).. 14, 15

Gaines v. Thieret, 665 F. Supp. 1342 (N.D. IIl.

1987), rev’d on other grounds, 846 F.2d 402 (7th

Sy ID wissccariseedided idle ach see ee cle ee acti be nesiie 25

Harris v. Reed, 894 F.2d 871 (7th Cir. 1990) .......... 24

Jones v. Murray, 947 F.2d 1106 (4th Cir. 1991),

cert. denied, 112 S. Ct. 1591 (1992) —..0000 19, 22

Jones v. Murray, 976 F.2d 169 (4th Cir.), cert.

ro a Ee ef. men 19, 22

Mathenia v. Delo, 975 F.2d 444 (8th Cir. 1992),

cert. denied, 113 S. Ct. 1609 (1993) 0.0000. cnn 16

McAleese v. Mazurkiewicz, 1 F.3d 159 (3d Cir.),

cert. denied, 114 S. Ct. 645 €1998) 0000. 24

Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.

1989), cert. denied, 497 U.S. 1038 (1990) ........... 16

————

Vv

TABLE OF AUTHORITIES—Continued

Page

Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987). 25

Turner v. Bass, 753 F.2d 342 (4th Cir. 1985) ....... 7,22

Turner v. Williams, 35 F.8d 872 (4th Cir. 1994) ....passim

Turner v. Williams, 812 F. Supp. 1400 (E.D. Va.

ON eT EL HN ET done alae INT EN EON 1,10

United States v. McGill, 11 F.8d 223 (1st Cir.

BED ois Kocacadsiadtciatniglastiee eendscesdammmadalinemaieiemunteeiatess 24

United States v. Washington, 840 F. Supp. 562

Tie IE eceiass cost henciahtenceadabidceaataaesniecounnss 24

Wiley v. Puckett, 969 F.2d 86 (5th Cir. 1992) ........ 17

Commonwealth of Virginia

Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d

196 (1987), cert. denied, 484 U.S. 1036 (1988) .... 21

Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d

407 (1985), cert. denied, 475 U.S. 1031 (1986)... 18

Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d

271, cert. denied, 464 U.S. 977 (1983) .................. 15, 21 _

Davidson v. Commonwealth, 244 Va. 129, 419

S.E.2d 656, cert. denied, 113 S. Ct. 423 (1992).. 17

Delong v. Commonwealth, 234 Va. 357, 362 S.E.2d

669 (1987), cert. denied, 485 U.S. 929 (1988)... 25

Edmonds v. Commonwealth, 229 Va. 308, 329

S.E.2d 807, cert. denied, 474 U.S. 975 (1985)...... 22

Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d

GE CE aichcidisebite lcci la tseeetit te eeitetinnceetens 5, 6

Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d

595, cert. denied, 491 U.S. 910 (1989) ................ 17

Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d

554 (1984), cert. denied, 472 U.S. 1012 (1985).. 18

Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d

380 (1992), cert. denied, 113 S. Ct. 1880 (1993)... 17, 18

Mw’ Min v. Commonwealth, 239 Va. 433, 389 S.E.2d

886 (1990), aff'd, 500 U.S. 415 (1991) -......222.... 22

Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d

135 (1978), cert. denied, 441 U.S. 967 (1979) ....4, 5, 15

Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d

394, cert. denied, 114 S. Ct. 143 (1993)............ 17

Stout v. Commonwealth, 237 Va. 126, 376 S.E.2d

288, cert. denied, 492 U.S. 925 (1989) ................. 22

a

vi

TABLE OF AUTHORITIES—Continued

Page

Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d

606, cert. denied, 113 S. Ct. 421 (1992) —............ 17

Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d

539 (1984), rev’d, 471 U.S. 1096 (1985) —......... 15

Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d

36 (1980), cert. denied, 451 U.S. 1011 (1981)... 3,7,

18, 21

Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d

483, cert. denied, 486 U.S. 1017 (1988) _.......... 9,17,18

Turner v. Williams, No. 901335 (Southampton

Comair Cir. Ge, BR Tit, BOD ccccctttcvecicecsevenscctecesee 9

Turner v. Williams, No. 901335 (Va. Apr. 30,

TERETE \ciicisnisscscuicheienisetpecscunpsblamseniibcachesaiitetdamaiaetadiaas 9

Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d

422 (1985), cert. denied, 475 U.S. 1099 (1986)... 21

Other State Courts

Butler v. State, 789 S.W.2d 898 (Tenn. 1990) ........ 24

Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976) ..

Jackson v. State, No. 79509, 1994 WL 137914 (Fla.

BOD, Wks TED witsctntinintintinaidbieutndc., 21

People v. Ortiz, 224 Ill. App.3d 1065, 586 N.E. 2d

1384, appeal denied, 145 Ill.2d 641, 596 N.E.2d

Oe CRIED © ‘snsicautiicsssdsecucerccinicteteetatedionaea ania 24

People v. Schlager, 247 Ill. App.3d 921, 617 N.E.2d

1275, appeal denied, 152 I1l.2d 575, 622 N.E.2d

PE RRS 2 I ae ean ore OR eS SO 24

Constitutional and Statutory Provisions

Sixth, Eighth and Fourteenth Amendments to the

United States Constitution —...........02222.222....----.-- passim

a se REED SEINE ctciitrictttiniiti 2

eB ae en eI 10

Del. Code Ann. tit. 11, § 4209 (e) (I) (1) (1993)... 12

Ga. Code Ann. § 17-10-30(b) (7) (Michie(1994) ... 12

Mo. Rev. Stat. § 565.032(2)(7) (Vernon 1994

hE een ee aes ee ne ee 12

Nev. Rev. Stat. § 200.083(8) (1992) -....................... 12

N.J. Rev. Stat. § 2C:11-3(c) (4) (c) (1994 Supp.).. 12

Te

vii

TABLE OF AUTHORITIES—Continued

Page

S.D. Codified Laws Ann. § 23A-27A-1(6) (1994

UNIT Gapsdenisiacuaescuaacatinidenteaan aed 12

Va. Code Ann. § 18.2-31 (Michie 1994 Supp.)........ 2, 3, 20

Va. Code Ann. § 19.2-264.4 (Michie 1994 Supp.).... 2, 4,

IN THE

Suprene Court of the United States

OCTOBER TERM, 1994

No.

WILLIE LLoyD TuRNER,

‘~ Petitioner,

JOHN JABE, Warden,

Greenville Correctional Center,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Willie Lloyd Turner respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit affirming denial

of his petition for a writ of habeas corpus in this death

penalty case.

OPINIONS BELOW

The opinion of the Court of Appeals (App. 1a-99a)

is Officially reported at 35 F.3d 872 (4th Cir. 1994).

The opinion of the District Court (App. 100a-164a) is

officially reported at 812 F. Supp. 1400 (E.D. Va. 1993).

JURISDICTION

The Court of Appeals entered judgment affirming the

denial of a writ of habeas corpus on September 15, 1994,

and the parties’ petitions for rehearing were denied on

|

2

October 17, 1994. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1) (1988).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This petition invokes the Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and in-

volves Sections 18.2-31 and 19.2-264.4 of the Virginia

Code. These provisions are reprinted in Appendix E at

175a-178a.

STATEMENT OF THE CASE

1. In Godfrey v. Georgia, 446 U.S. 420 (1980), this

Court held that a vileness aggravating factor identical to

the one at issue here was unconstitutionally vague and

overbroad on its face, but indicated that narrowing jury

instructions and careful appellate review could save the

provision. Tuilaepa v. California, 114 S. Ct. 2630

(1994), suggests that any curative jury instructions must

both provide a common-sense core of meaning for the

vague terms used and narrow the field of potential capital

cases. Petitioner’s case tests the minimum requirements

necessary for a commonly used vileness aggravating factor

and squarely presents the provision’s constitutional in-

firmities. Certiorari review is warranted because, for sev-

eral reasons, there may be no better case in which to

resolve the issues raised. First, the jury did not find any

other aggravating factor. Second, the jury did not indi-

cate which predicate of vileness supported its finding;

thus, if any predicate is unconstitutional, the death sen-

tence cannot stand. Third, the court below ruled that

Petitioner’s claims are neither Teague-barred nor pro-

cedurally defaulted. Finally, the fact-pattern presented

here—a shooting during a robbery—plainly does not lie

at the core of the vileness aggravating factor. The jury

was instructed, however, that “depravity of mind,” de-

fined as “moral turpitude and psychical debasement,”

could justify a finding of “vileness,” which was the basis

3

for the death sentence here. There is, therefore, a grave

risk that the sentence was based on an unconstitutional

understanding of vileness.

The decision below that the jury instructions given in

this casc were sufficient to uphold Petitioner’s death sen-

tence conflicts with a Ninth Circuit case rejecting more

specific instructions. The alternative holding that state

appellate review also provided an adequate cure conflicts

with a decision of the Eighth Circuit because the Virginia

Supreme Court does not require consistency among sen-

tences for death-eligible crimes and has never overturned

a capital sentence on Eighth Amendment grounds, either

on direct or collateral appeal, since the death penalty was

reinstated in 1977. In addition, the decisiqgn below ig-

nores this Court’s requirement that any aggravating factor

must limit death-eligibility meaningfully, and the Fourth

Circuit has demonstrated that it intends to do nothing

more unless directed by this Court to do so. Further-

more, the Virginia Supreme Court has gone so far as to

reject Godfrey altogether as resting on its unique facts.

Turner v. Commonwealth, 221 Va. 513, 525, 273

S.E.2d 36, 44 (1980), cert. denied, 451 U.S. 1011

(1981). This Court has never considered Virginia’s capi-

tal sentencing scheme, though Virginia trails only Texas

and Florida in the number of prisoners executed since

1977.

2. The rejection of Petitioner’s claim regarding denial

of effective assistance of counsel is inconsistent with the

criteria established by this Court. It also departs from

the precedents of other courts of appeals.

A. The Virginia Capital Sentencing Scheme

To convict a defendant of capital murder in Virginia,

a jury must find that the defendant committed a “willful,

deliberate, and premeditated killing” that meets one of

several enumerated descriptions. Va. Code Ann. § 18.2-

31 (Michie 1994 Supp.). After conviction, the jury must

find the presence of at least one of two aggravating factors

4 |

to recommend a death sentence: (1) that “there is a

probability based upon evidence of the prior history of

the defendant or of the circumstances surrounding the

commission of the offense of which he is accused that he

would commit criminal acts of violence that would con-

stitute a continuing serious threat to society” (the “future

dangerousness” aggravating factor), or (2) that the de- |

fendant’s “conduct in committing the offense was out-

rageously or wantonly vile, horrible or inhuman, in that

it involved torture, depravity of mind or an aggravated

battery to the victim” (the “vileness” aggravating factor).

Va. Code Ann. § 19.2-264.4(C) (Michie 1994 Supp.).

This statutory language is used to instruct juries during

sentencing. If the jury finds one or both aggravating

factors are present, it must then make a discretionary

determination whether to impose the death penalty in light

of any mitigating evidence presented to it. Smith v. Com-

monwealth, 219 Va. 455, 479-80, 248 S.E.2d 135, 150

(1978), cert. denied, 441 U.S. 967 (1979).’

In Petitioner’s case, the jury based its recommendation

of a death sentence solely on the vileness aggravating

factor. When instructing juries on that aggravating factor,

sentencing courts in Virginia, although not required to do

so by the Virginia Supreme Court, often offer additional

standard jury instructions which further define “depravity

of mind” as a “degree of moral turpitude and psychical

debasement surpassing that inherent in the definition of

ordinary legal malice and premeditation.” Smith, 219

Va. at 478, 248 S.E.2d at 149. The standard jury in-

structions also define “ordinary legal malice” as follows:

1If the jury convicts but does not unanimously find the presence :

of at least one aggravating factor, the sentencing court must impose |

a sentence of life imprisonment. Va. Code Ann. § 19.2-264.4(E)

(Michie 1994 Supp.). The Virginia statutory scheme requires the

jury to use a verdict form that indicates the sentence and, if the

sentence is death, which aggravating factor or factors were proven.

Va. Code Ann. 19.2-264.4(D) (Michie 1994 Supp.)

2 This petition focuses on the “depravity of mind” predicate for

vileness. This case presented no evidence of “torture” and the

Placa

5

Maliciously means intentionally doing a wrongful act

to another without legal excuse or justification.

Malice implies that the mind of the actor is under

the control of reason. It excludes heat of passion.

Malice and heat of passion cannot coexist. Malice

includes not only anger, hatred or revenge, but every

unlawful or unjustifiable motive. Malice can be in-

ferred fromm any willful, deliberate, and cruel act

against another.

The standard jury instructions also state that “[wlillful,

deliberate, and premeditated means the adoption of a

specific intent to kill. The intent to kill must come into

existence at some time before the killing. but need not

exist for any particular length of time.”

Armed only with these instructions, a Virginia jury is

charged to determine whether the crime in question in-

volved depravity of mind, thus permitting a death sen-

tence under the vileness aggravating factor. If the jury

recommends a death sentence, the sentencing court is

bound to follow the recommendation unless either facts

presented in the assigned probation officer’s report indi-

cate that the death sentence is inappropriate or unjust or

the defendant can show good cause to set the recom-

mendation aside. See Frye v. Commonwealth, 231 Va.

370, 397, 345 S.E.2d 267, 286 (1986).

instructions given here did not put that predicate before the jury.

As for “aggravated battery,” the instructions defined it as “a

battery which, qualitatively and quantitatively, is more culpable

than the minimum necessary to accomplish an act of murder.”

Smith, 219 Va. at 479-80, 248 S.E.2d at 150. By contrast, this

Court has indicated that, for capital sentencing under an identical

vileness aggravating factor in Georgia, the standard for aggravated

battery requires “evidence of serious physical abuse of the victim

before death.” Godfrey v. Georgia, 446 U.S. 420, 431 (1980). In

any event, the jury here did not specify which predicate supported

its finding of vileness. Therefore, if any predicate falls short of

the constitutional standards established by this Court, the sentence

cannot stand.

6

The Virginia Supreme Court has considered ninety-

seven capital cases since 1978.° It has never commuted

or reversed and remanded a death sentence on Eighth

Amendment grounds since the death penalty was rein-

stated in Virginia in 1977.*

B. Petitioner’s Capital Sentence

On July 12, 1978, Petitioner shot the owner of a

jewelry store during a robbery after the store owner

triggered a silent alarm. The store owner was shot three

times, one bullet grazing his scalp and two bullets hitting

his chest in rapid succession. The second and third shots

were each independently fatal. Petitioner was convicted

of capital murder in December 1979 and sentenced to

death in February 1980. Following federal post-conviction

appeals, this Court affirmed the conviction but vacated

the death sentence because the trial court had refused to

question prospective jurors about possible bias resulting

from the fact that Petitioner is African-American and his

victim was white. Turner v. Murray, 476 U.S. 28 (1986).

The proceedings culminating in Turner v. Murray are

referred to as “Turner I’. The subsequent resentencing

proceedings are referred to as “Turner IT”.

The case returned to the Circuit Court for the County

of Southampton, which appointed J. Lloyd Snook, III

and Thomas L. Woodward, Jr. as Petitioner’s counsel for

the resentencing hearing. Snook, who served as lead coun-

sel, had never represented a client in a capital trial, al-

3 A table of citations for cases reviewed by the Virginia Supreme

Court is included as Appendix D at 166a-174a to this petition. The

table also indicates the aggravating factor or factors found by

the jury.

4 The only possible exception is the reversal in Frye v. Common-

wealth, 231 Va. 370, 345 S.E.2d 267 (1986). That case cited

Caldwell v. Mississippi, 472 U.S. 320 (1985), where this Court held

that prosecutorial statements diminishing the jury’s sense of re-

sponsibility for imposition of a death sentence violated the Eighth

Amendment. Frye does not rely upon the Eighth Amendment

directly.

a ona Ne nn Noe

7

though he had considerable appellate experience in death

penalty cases. Woodward, by all accounts, played a minor

role in the resentencing.*

In Turner I, the jury had found both statutory aggravat-

ing factors (future dangerousness and vileness) after little

more than an hour of deliberation. Although the Vir-

ginia Supreme Court concluded that Petitioner’s crime

did “not rise to the level” of “atrociousness” exhibited in

other cases, Turner v. Commonwealth, 221 Va. 513, 530,

273 S.E.2d 36, 47 (1980), it nonetheless upheld the

jury’s finding and sustained the death sentence. In the

post-conviction challenges to the conviction and sentence,

each reviewing court upheld the findings of both vileness

and future dangerousness. See, e.g., Turner v. Bass, 753

F.2d 342, 350-53 (4th Cir. 1985).

Under the terms of this Court’s remand order, the

Commonwealth had six months to resentence Petitioner.

Thus, defense counsel knew in July 1986 that the trial

would take place in January 1987. The prosecutor

promised to present the same case as was offered in

Turner I. He also promised to introduce evidence of

Petitioner’s involvement in a breakout incident at Meck-

lenburg prison in 1984. Defense counsel, however, did

virtually nothing to develop a mitigation case during the

next several months. He conceded that he did not even

begin to focus seriously on the trial until nine days before

it was to commence.®

5 Both attorneys were involved in Turner I. Woodward served as

co-counsel at trial, while Snook represented Petitioner in post-

conviction proceedings.

® Defense counsel never conducted a comprehensive interview with

Petitioner. He did not meet any potential mitigation witnesses until

the morning they arrived to testify, and he failed to interview the

prosecution’s witnesses. Furthermore, he did not subpoena any

mitigation witnesses to testify on Petitioner’s behalf. His super-

vision of the court-appointed mental health expert, Dr. Fisher, was

so inadequate that Dr. Fisher, the primary witness for the defense,

did not examine Petitioner until after the prosecution had rested.

8

Counsel was aware of but failed to investigate the

1984 prison breakout, and thus did not develop evidence \

that Petitioner had prevented both murder and rape dur-

ing the incident. According to one sworn statement, Peti-

tioner told other inmates who had seized guards as hos-

tages and were threatening to kill them: “No, you’re not.

You’re going to have to go thru [sic] me first. If you’re

going to kill somebody, you will have to kill me first.”

Turner v. Williams, 35 F.3d 872, 902 (4th Cir. 1994).

One of the officers whose life had been threatened cor-

roborated this statement. In addition, two corrections

officers indicated that Petitioner played a key role in

securing the hostages’ safety and release. Another officer

gave a sworn statement that Petitioner had talked an in-

mate out of killing all the guards taken hostage and had

aided in their release. Still another reported that Peti-

tioner had convinced other inmates not to rape a nurse

who had been taken hostage. All of these witnesses could

have testified at the resentencing, but defense counsel

never contacted any of them.”

During voir dire, defense counsel voluntarily informed

prospective jurors that another Virginia jury had previ-

ously sentenced Petitioner to death for the murder at issue

in the resentencing.* Then, during the opening statement

for the defense at the resentencing, he promised to put on

mitigating evidence. He rested, however, without present-

ing any mitigating evidence at all—an omission that the

prosecution repeatedly emphasized during closing argu-

ment.

The resentencing jury was given the standard instruc-

tions set out above. Defense counsel objected to the vile-

7 Petitioner was not charged with any crime or institutional

infraction in connection with the breakout incident.

8 One juror indicated that he would probably be affected by his

knowledge of the earlier sentence, but he was nonetheless allowed

to sit on the jury based on the strength of the prosecution’s argu-

ment that the influence of the earlier death sentence would be no

greater on that juror than on the others.

|

9

ness instruction, arguing that because all first-degree mur-

ders are vile, horrible and inhuman, the vileness factor

did not provide sufficient guidance to minimize the likeli-

hood that the death penalty would be imposed arbitrarily.

Furthermore, defense counsel argued that shooting a sin-

gle victim three times during a bungled robbery did not

qualify for vileness. Nevertheless, the court instructed the

jury on the vileness aggravating factor using the standard

language quoted above.

After deliberating for a time, the jury returned with

three questions. The first was whether the original trial

transcript was available; the Court replied that it was not.

Then the jury asked about the possibility of parole if it

found for life imprisonment. Over the objection of de-

rense counsel, the Court replied that the jury “need not

concern [itself] with what may happen afterwards.” The

jury deliberated further, and then returned to ask whether

the verdict had to be unanimous for either the death

penalty or life imprisonment. The Court answered that

the verdict should be unanimous in either case. The jury

then returned a verdict fixing the sentence at death based

solely on the vileness factor.

C. Subsequent Proceedings

The Virginia Supreme Court upheld the sentence.

Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483

(Turner II), cert. denied, 486 U.S. 1017 (1988). Peti-

tioner then sought state habeas relief, alleging both the

unconstitutionality of the vileness aggravating factor and

the denial of effective assistance of counsel, among other

claims. The same judge who sentenced Petitioner-then

held a hearing on some of the ineffective assistance claims

and denied them, adopting verbatim the Commonwealth’s

proposed findings of fact; all other claims were dismissed

without a hearing. Turner v. Williams, No. 901335

(Southampton County Cir. Ct. May 23, 1990). The Vir-

ginia Supreme Court denied the petition for appeal.

Turner v. Williams, No. 901335 (Va. Apr. 30, 1991).

10

Pursuant to 28 U.S.C. § 2254 (1988), Petitioner

sought federal habeas relief. The district court denied

Petitioner’s motion for discovery and production of docu-

ments and his motion for an evidentiary hearing. Instead,

the court entered summary judgment in favor of respond-

ent and dismissed the petition. Turner v. Wiiliams, 812

F. Supp. 1400 (E.D. Va. 1993). After rejecting the

Commonwealth’s arguments that Petitioner’s claims were

barred by Teague v. Lane, 489 U.S. 288 (1989), and

procedurally defaulted, the U.S. Court of Appeals for the

Fourth Circuit affirmed the denial of the writ of habeas

corpus, addressing Petitioner’s claims on the unconsti-

tutionality of the Virginia sentencing scheme and _ his

claims of ineffective assistance of counsel on the merits.

Turner v. Williams, 35 F.3d 872 (4th Cir. 1994).

REASONS FOR GRANTING THE PETITION

I. THE COURTS OF APPEALS ARE IN CONFLICT

ABOUT THE FURTHER LIMITATIONS CONSTI-

TUTIONALLY REQUIRED TO PERMIT IMPOSI-

TION OF THE DEATH PENALTY UNDER THE

VILENESS AGGRAVATING FACTOR COMMON TO

VIRGINIA AND MANY OTHER STATES.

Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980),

held that a vileness aggravating factor identical to that

at issue here was unconstitutionally vague and overbroad

on its face absent clarifying and narrowing jury instruc-

tions and appellate review to restrict imposition of the

death penalty to crimes lying at the core of the vileness

factor. Since Godfrey, the lower courts have been divided

as to whether jury instructions like those-used in Virginia

give juries adequate guidance to minimize their ability }

to impose the death penalty arbitrarily. Furthermore, it

is unclear whether appellate review is adequate to save

a sentencing scheme where, as here, a State’s courts never

commute or reverse a capital sentence on Eighth Amend-

ment grounds and make no effort to reconcile death sen-

11

tences with lesser sentences given for similar crimes in

other cases. This petition affords this Court the oppor-

tunity to resolve conflict and confusion on the require-

ments necessary to bring the vileness aggravating factor

within constitutional bounds.

In general, statutory aggravating factors must meet two

constitutional standards to justify a death sentence. They

“must channel the sentencer’s discretion by ‘clear and

objective standards’ that provide ‘specific and detailed

guidance,’ and that ‘make rationally reviewable the process

for imposing a sentence of death.’” Godfrey v. Georgia,

446 U.S. at 428 (footnotes omitted).® Additionally, ag-

gravating factors must “genuinely narrow the class of

persons eligible for the death penalty and must reasonably

justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder.”

Zant v. Stephens, 462 U.S. 862, 877 (1983). Last term,

this Court incorporated these standards into a two-prong

test. Tuilaepa v. California, 114 S. Ct. 2630 (1994).

First, “the aggravating circumstance may not be uncon-

stitutionally vague”—that is, it must have a “ ‘common-

sense core of meaning .. . that criminal juries should be

capable of understanding.’” 114 S. Ct. at 2635-36 (cit-

ing Godfrey, 446 U.S. at 428, and Arave v. Creech,

113 S. Ct. 1534, 1541 (1993), and quoting Jurek v.

Texas, 428 U.S. 262, 279 (1976) (White, J., concur-

ring)). Second, “the circumstance may not apply to

every defendant convicted of a murder; it must apply only

to a subclass of defendants convicted of murder.” 114

S. Ct. at 2635 (citing Arave, 113 S. Ct. at 1542). Accord

Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion

of Stewart, Powell, and Stevens, JJ.) (“[WJhere discretion

is afforded a sentencing body on a matter so grave as the

determination of whether a human life should be taken or

®On several subsequent occasions, a majority of the Court has

adopted this standard. See, e.g., Lewis v. Jeffries, 497 U.S. 764,

777-78 (1989) ; Arave v. Creech, 113 S. Ct. 1534, 1540 (1993).

12

spared, that discretion must be suitably directed and

limited so as to minimize the risks of wholly arbitrary and

capricious action.”); Godfrey, 446 U.S. at 427 (“[A]

capital sentencing scheme must, in short, provide a mean-

ingful basis for distinguishing the few cases in which [the

death penalty] is imposed from the many in which it is

not.”) (internal quotes and citations omitted); Maynard

v. Cartwright, 486 U.S. 356, 362 (1988) (“[O]ur cases

have insisted that the channeling and limiting of the

sentencer’s discretion in imposing the death penalty is a

fundamental constitutional requirement for sufficiently

minimizing the risk of wholly arbitrary and capricious

action.”).

The Virginia statute allows for imposition of the death

penalty if the jury finds that the defendant’s “conduct in

committing the offense was outrageously or wantonly vile,

horrible or inhuman, in that it involved torture, depravity

of mind or an aggravated battery to the victim.” Va.

Code Ann. § 19.2-264.4(C) (Michie 1994 Supp.). It is

identical to provisions in six other States. Del. Code Ann.

tit. 11, § 4209(e)(1)(1) (1993); Ga. Code Ann. § 17-

10-30(b)(7) (Michie 1994); Mo. Ann. Stat. § 565.032

(2)(7) (Vernon 1994 Supp.); Nev. Rev. Stat. § 200.033

(8) (1992); N.J. Rev. Stat § 2C:11-3(c)(4)(c) (1994

Supp.); S.D. Codified Laws Ann. § 23A-27A-1(6) (1994

Supp.). The first issue presented in this petition is

whether the vileness provision as applied below—and gen-

erally in Virginia—survives this Court’s two-prong test.

A. The Courts Of Appeals Have Adopted Inconsistent

Standards By Which Jury Instructions Or Appel-

late Review Could Cure The Facially Unconstitu-

tional Vagueness Of The Vileness Aggravating

Factor.

This Court has addressed this vileness aggravating

factor twice, determining that the language is unconstitu-

tionally vague on its face, but leaving open the standards

ctubsl CeGaidlie dines Habisibded Pewbemebe0k? tes mutase

13

for jury instructions and appellate review necessary to

cure that deficiency. In Gregg v. Georgia, 428 U.S. 153,

201 & n.51 (1976), this Court indicated that this factor

is subject to challenge for both vagueness and overbreadth

and that reviewing courts should consider whether its

imprecise language introduces arbitrariness and caprice

into the imposition of capital punishment. The Court

went on, however, to state that these defects could be

cured by appropriate jury instructions and direct appellate

review. Id. Godfrey v. Georgia, 446 U.S. 420 (1980),

specifically held that a provision identical to that under

which Petitioner was sentenced was vague on its face.

The plurality opinion stated:

There is nothing in these few words, standing alone,

that implies any inherent restraint on the arbitrary

and capricious infliction of the death sentence... .

[The trial judge’s failure to provide clarifying jury

instructions] gave the jury no guidance concerning

the meaning of any of [the statute’s] terms. In fact,

the jury’s interpretation of [the provision] can only

be the subject of sheer speculation.

446 U.S. at 428-29. The Godfrey opinion went on to

consider whether there was sufficient independent appel-

late review of the record to cure the deficiency in that case

and held that there was not. Id., 446 U.S. at 429-433.%

In addition to’ the court below, two U.S. courts of

appeals have considered what is necessary to cure the

defects of such a vileness provision. The Ninth Circuit

has held that jury instructions more specific and narrow-

ing than those used here do not provide sufficient guid-

ance. The Eighth Circuit has held that appellate review

which does not impose a limiting construction is insuffi-

10 Because the Virginia vileness aggravating factor is identical to

the Georgia provision at issue in Gregg and Godfrey, “there is no

serious argument” that the factor is constitutional without appro-

priately narrowing jury instructions and limiting direct appellate

review. Walton v. Arizona, 497 U.S. 639, 654 (1990).

14

cient to save the statute. In contrast, the court below

upheld the Virginia capital sentencing scheme on the

basis of vague and unconstraining jury instructions and

a history of nominal appellate review in which no death

sentence has been overturned on Eighth Amendment

grounds.

The vileness aggravating factor is especially vague in

that it includes “depravity of mind” as a basis for im-

position of capital punishment.“ The Ninth Circuit has

held that detailed jury instructions did not cure the vague-

ness of identical language in Nevada’s capital sentencing

statute. The rejected charge in that case read:

[T]he condition of the mind described as depravity

of mind is characterized by an inherent deficiency of

moral sense and rectitude. It consists of evil, cor-

rupt and perverted intent which is devoid of regard

for human dignity and which is indifferent to human

life. It is a state of mind outrageously, wantonly vile,

horrible or inhuman.

Deutscher v. Whitley, 884 F.2d 1152, 1162 n.1 (9th

Cir. 1989) (“Deutscher I’), vacated and remanded, 500

U.S. 901 (1991), on remand, 946 F.2d 1443, 1446-47

(9th Cir. 1991) (“Deutscher II”), vacated and remanded,

113 S. Ct. 367 (1992), on remand, 16 F.3d 981 (9th

Cir. 1994). The Ninth Circuit held that this instruction

did not meet the requirements of Godfrey because it failed

to “restrain[] arbitrary imposition of the death penalty.”

The court elaborated: “The depravity instruction in this

case, although it contains more words, is no more capable

of channeling discretion than the ‘especially heinous, atro-

cious, or cruel’ instruction rejected in Maynard [v. Cart-

wright, 486 U.S. 356 (1988)] or the ‘outrageously or

wantonly vile, horrible or inhuman’ instruction in God-

frey.” Deutscher I, 884 F.2d at 1162.”

11 See note 2, supra.

12 After this Court remanded Deutscher after vacating on other

grounds, the court of appeals again rejected the depravity of mind

15

When given,” the standard Virginia jury instructions

define “depravity of mind” as a “degree of moral turpitude

and and [sic] psychical debasement surpassing that inherent

in the definition of ordinary legal malice and premedita-

tion.” Turner v. Williams, 35 F.3d 872, 891 (4th Cir.

1994). Even with further definitions of “malice” and

“premeditation,” these instructions do not meet this

Court’s requirement that aggravating factors have a

common-sense core of meaning that criminal juries should

be capable of understanding. Tuilaepa, 114 S. Ct. at

2635-36. “Moral turpitude” at best is only an alternative

formulation of “baseness,” “depravity,” or “vileness,”

words that this Court has rejected as a constitutional

basis for imposing the death penalty. See Godfrey, 446

U.S. at 428-29.%% “Psychical debasement” has no ap-

parent meaning at all and could refer to corruption from

supernatural, spiritual, mental, moral, emotional, intuitive

or any of several other influences. All in all, the jury

element and the Nevada jury instructions, reiterating the same rea-

soning from the first opinion in virtually the identical words. See

Deutscher Ii, 946 F.2d at 1447. In affirming the prior ruling, the

court added that the instruction also “failed to include objective

indicia analogous to the instructions approved in Walton v. Ari- |

zona.” Id.

13 In direct contradiction of this Court’s holding in Godfrey, the

Virginia Supreme Court has held that no clarifying jury instruc-

tions are required for vileness at all because the predicates are all

commonly understood to have the meanings ascribed to them in the

jury instructions given here. See Tuggle v. Commonwealth, 228

Va. 498, 323 S.E.2d 539 (1984), rev’d, 471 U.S. 1096 (1985) ; Bunch

v. Commonwealth, 225 Va. 428, 304 S.E.2d 271, cert. denied, 464

U.S. 977 (1983) ; Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d

135 (1978), cert. denied, 441 U.S. 967 (1979}.

14 See also Shell v. Mississippi, 498 U.S. 1, 2 (1990) (holding

unconstitutional an instruction providing “the word heinous means

extremely wicked or shockingly evil; atrocious means outrageously

wicked and vile; and cruel means designed to inflict a high degree

of pain with indifference to, or even enjoyment of[,] the suffering

of others”).

16

instructions used in Virginia fall considerably short of

the instructions found unconstitutional in Deutscher.*®

The alternative holding below—that Virginia’s system

of appellate review cures the deficiencies in the jury

instructions—conflicts with decisions of the Eighth Circuit

addressing Missouri’s system of appellate review of an

identical vileness provision. The Eighth Circuit found

that the Missouri Supreme Court failed to cure the defect

on direct review, even though it claimed to apply stand-

ards narrowing the factor to cases involving physical and

psychological torture over a substantial period of time,

brutality, mutilation of the body, absence of motive or

absence of remorse. Newlon v. Armontrout, 885 F.2d

1328, 1334 (8th Cir. 1989), cert. denied, 497 U.S. 1038

(1990). See also Mathenia v. Delo, 975 F.2d 444, 449

(8th Cir. 1992), cert. denied, 113 S. Ct. 1609 (1993).

Moreover, this Court has clearly stated that appellate

review must do more than simply apply a limiting con-

struction to the provision and determine whether the evi-

dence could support a vileness finding; the courts must

inquire into “whether beyond reasonable doubt the result

would have been the same had the [vileness] aggravating

circumstance been properly defined in the jury instruc-

tions.” Clemons v. Mississippi, 494 U.S. 738, 754

15 Furthermore, a standard which requires “moral turpitude” and

“psychical debasement” surpassing ordinary malice and premedita-

tion is meaningless because, as defined in the Virginia jury instruc-

tions used here, ordinary malice can be inferred from any willful,

deliberate and cruel act against another. Asking a jury whether a

murder defendant’s moral turpitude or psychical debasement sur-

passed this standard—any deliberate act—does not provide the

“specific guidance” necessary in a capital sentencing context. Simi-

larly, as defined in the Virginia jury instructions used here, pre-

meditation requires the formation of intent before action, but that

intent need not exist for any particular length of time. If the

formation of an intent to kill one second before acting meets the

standard of premeditation, formation of an intent to kill one hour,

or one minute or even two seconds before acting “surpasses” that

standard.

17

(1990) (emphasis added). This requirement imposes a

burden which is plainly “more exacting than the burden

of finding that the evidence supports the narrowed ag-

gravating factor.” Wiley v. Puckett, 969 F.2d 86, 93

(Sth Cir. 1992). Yet in this case all the Virginia Su-

preme Court purported to do was determine whether the

evidence could have supported a finding of vileness. 364

S.E.2d at 489.

Indeed, rather than using appellate review to define

the vileness factor more concretely and thus limit the

arbitrary nature of the imposition of the death penalty in

Virginia, the vagueness of the provision and its instruc-

tions has enabled the Virginia Supreme Court to reject

every Eighth Amendment challenge it has faced in a

capital case. In so doing, the Virginia Supreme Court

has held the following:

* That any predicate (including depravity of mind)

on its own can suffice for the imposition of a death sen-

tence, Mueller v. Commonwealth, 244 Va. 386, 422

S.E.2d 380 (1992), cert. denied, 113 S. Ct. 1880

(1993);

* That depravity of mind can exist even if the record

does not support any finding of torture or aggravated

battery, Stewart v. Commonwealth, 245 Va. 222, 427

S.E.2d 394, cert. denied, 114 S. Ct. 143 (1993);

* That failure to accept responsibility for the crime can

support a finding of vileness, Davidson v. Commonwealth,

244 Va. 129, 419 S.E.2d 656, cert. denied, 113 S. Ct.

423 (1992);

®* That lack of remorse can constitute depravity of

mind, Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d

606, cert. denied, 113 S. Ct. 421 (1992);

* That depravity of mind can be inferred from pre-

meditation, Hoke v. Commonwealth, 237 Va. 303, 377

S.E.2d 595, cert. denied, 491 U.S. 910 (1989);

18

* That vileness can be inferred from the “nature” of

the murder as well as the number of batteries, Boggs y.

Commonwealth, 229 Va. 501, 331 S.E.2d 407 (1985),

cert. denied, 475 U.S. 1031 (1986); and

* That the “vile” conduct can occur after the death

of the victim, even if death is instantaneous, Mueller v.

Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992),

cert. denied, 113 S. Ct. 1880 (1993); Jones v. Common-

wealth, 228 Va. 427, 323 S.E.2d 554 (1984), cert.

denied, 472 U.S. 1012 (1985).

Petitioner’s case is an extreme example of the loose

standards in the Virginia Supreme Court’s appellate re-

view. When that court first considered the facts in Turner

[, it found that the crime did not reach the level of

atrociousness found in many other capital cases, 273

S.E.2d at 47, but upheld the death sentence because

“le]ven if Turner’s crime did not meet the ‘vileness” stand-

ard, imposition of the death penalty would be permissible

under the ‘dangerousness’ standard.” 273 S.E.2d at 45.

After the Turner II jury rejected future dangerousness as

an aggravating factor, the Virginia Supreme Court, re-

visiting the same facts it addressed in Turner I, held that

“lwle think that the evidence of Turner’s conduct in kill-

ing his victim” meets the depravity of mind standard

“clearly and completely.” 364 S.E.2d at 489. The vague-

ness of the depravity of mind predicate, its malleability

to adjust to any set of circumstances, and the Virginia

Supreme Court’s inability to set limits on its adaptability

together can yield any result—even different results on

the same facts before the same court.

Because several states have agg-avating factors con-

taining a depravity of mind predicate, because the Fourth

Circuit is in conflict with both this Court and with other

circuits regarding the standards that jury instructions and

appellate review must meet to comply with constitutional

requirements, and because the Fourth Circuit has indi-

19

cated that it has no intention of reconsidering the issue,”

this Court should provide guidance as to the clarifying

jury instructions and depth of appellate review necessary

for constitutional application of the vileness aggravating

factor.

B. The Court Of Appeals Has Ignored This Court’s

Precedents Requiring Every Aggravating Factor

To Narrow The Class Of Death-Eligible Crimes.

Even if an aggravating factor is clear, specific and ob-

jective, it must still narrow the class of death-eligible

defendants. “If the sentencer fairly could conclude that

an aggravating circumstance applies to every defendant

eligible for the death penalty, the circumstance is consti-

tutionally infirm.” Arave, 113 S. Ct. at 1542, quoted

with approval in Tuilaepa, 114 S. Ct. at 2635. To meet

the demands of the Eighth Amendment, an aggravating

factor “must genuinely narrow the class of persons eligible

for the death penalty and must reasonably justify the im-

position of a more severe sentence.” Zant v. Stephens,

462 U.S. 862, 877 (1983). The Virginia jury instruc-

tions for vileness through the depravity of mind predi-

cate, however, authorize a death sentence for virtually

every murder defendant.

16 The Fourth Circuit has repeatedly upheld the Virginia sen-

tencing scheme. The opinion below simply declares with no analysis

that “we have on several occasions upheld [these] limiting defini-

tions .. . [and] we believe [they] are sufficiently clear and objec-

tive.” See Turner v. Williams, 35 F.3d 872, 892 (4th Cir. 1994).

No common-sense meaning of the instructions is offered. In Jones

v. Murray, 976 F.2d 169, 174-75 (4th Cir.), cert. denied, 113 S. Ct.

27 (1992), the prior opinion cited as precedent on this issue, the

court merely stated in a conclusory fashion that the instructions

provided adequate guidance to the jury. Its predecessor, Jones v.

Murray, 947 F.2d 1106, 1118-19 (4th Cir. 1991), cert. denied, 112

S. Ct. 1591 (1992), rejected the argument that these limiting

instructions are utterly unintelligible to the average juror, but

the opinion offered no elucidation of the common-sense meaning

of the instructions.

20

This Court’s first opinion on the vileness factor at issue

here noted that: “It is, of course, arguable that any

murder involves depravity of mind or an aggravated bat-

tery. But this language need not be construed this way,

and there is no reason to assume that the [State] Supreme

Court . . . will adopt such an open-ended construction.”

Gregg v. Georgia, 428 U.S. 153, 201 (1976). In God-

frey v. Georgia, this Court had to revisit this vileness ag-

gravating factor because the Georgia courts continued to

affirm death sentences based on nothing more than find-

ings that the offenses were “outrageously or wantonly vile,

horrible or inhuman.” 446 U.S. 420, 428 (1980). The

Court reiterated the concern that a “person of ordinary

sensibility could fairly characterize almost every murder

as ‘outrageously or wantonly vile, horrible and [sic] inhu-

man.” 446 U.S. at 428-29. In holding that the Georgia

vileness provision as applied was unconstitutional, this

Court made clear that the vileness factor cannot simply

be a catch-all and that state standards must restrict im-

position of capital punishment for vileness to those cases

that lie at the core of its meaning. See Godfrey, 446 US.

at 429-30.

The standard Virginia jury instructions given at Peti-

tioner’s resentencing require nothing more than “moral

turpitude and psychical debasement surpassing that in-

herent in the definition of ordinary legal malice and pre-

meditation,’ which in turn are defined, respectively, as

“every unlawful or unjustified motive” and the presence

of “a specific intent to kill” which “need not exist for any

particular length of time.” Every murder defendant elig-

ible for the death penalty in Virginia, however, has com-

mitted a crime that is, by definition, willful, deliberate

and premeditated. Va. Code Ann. §§'18.2-31, 19.2-264.4

(Michie 1994 Supp.). Every death-eligible murder is a

crime surpassing other willful, deliberate and cruel acts

against another. If possession of intent to kill for even

a moment suffices to meet the standard of premeditation,

every capital murder surpasses that standard; capital mur-

aoe

Bi er ut

ig a

21

der, by definition, excludes manslaughter and crimes of

passion. Every capital murder involves serious moral tur-

pitude and debasement in its lack of respect for human

life and thus is inherently depraved. Accordingly, Vir-

ginia’s instructions are not “limiting” or “narrowing” at

all; instead, they permit a jury to recommend a capital

sentence for any death-eligible defendant. In light of

Tuilaepa and the standards elucidated in Arave and Zant,

they are unconstitutional.”

Nor is there anything in Virginia’s standards of appel-

late review that restricts approval of death sentences to

“those cases that lie at the core” of the vileness provision.

Godfrey, 446 U.S. at 429. The Virginia Supreme Court

has repeatedly held that use of more than one bullet in

a shooting alone is enough to support a finding of vile-

ness. See, e.g., Watkins v. Commonwealth, 229 Va. 469,

489, 331 S.E.2d 422, 437 (1985), cert. denied, 475 US.

1099 (1986) (citing Turner I, 221 Va. at 518, 527, 273

S.E.2d at 39, 45). Furthermore, multiple shots are

enough to impose a death sentence under the aggravated

battery predicate of the vileness factor even if no single

wound would have killed the victim and the combined

shots were the minimum necessary to accomplish the act

of murder. Barnes v. Commonwealth, 234 Va. 130, 139,

360 S.E.2d 196, 202-03 (1987), cert. denied, 484 US.

1036 (1988). In fact, even a single gunshot wound alone

is enough for Virginia to uphold a finding of vileness for

depravity of mind where the crime is premeditated and

the defendant displays a lack of remorse. See Bunch vy.

Commonwealth, 225 Va. 423, 443-44, 304 S.E.2d 271,

282-83, cert. denied, 464 U.S. 977 (1983). The Virginia

Supreme Court has also repeatedly held that a single stab

wound is enough to support a finding of vileness under

the aggravated battery predicate of the vileness factor.

17In a recent opinion, the Florida Supreme Court rejected an

aggravating factor for crimes which are “cold, calculated and

premeditated” as unconstitutionally vague and overbroad. Jacksen

v. State, No. 79509, 1994 WL 137914 (Fla. Apr. 21, 1994).

22

See Mu’Min v. Commonwealth, 239 Va. 433, 450, 389

S.E.2d 886, 897 (1990), aff'd, 500 U.S. 415 (1991);

Stout v. Commonwealth, 237 Va. 126, 132, 376 S.E.2d

288, 291, cert. denied, 492 U.S. 925 (1989); Edmonds

v. Commonwealth, 229 Va. 303, 312, 329 S.E.2d 807,

814, cert. denied, 474 U.S. 975 (1985). Thus, Virginia’s

review of the aggravating factor is so lenient as to accom-

modate every death-eligible crime.

Although the Fourth Circuit has characterized Vir-

ginia’s depravity of mind jury instructions as “limiting,”

no panel has ever provided a reasoned opinion explaining

how the jury instructions narrow the class of death-eligible

defendants. See Turner v. Williams, 35 F.3d 872, 892

(4th Cir. 1994) (following Jones v. Murray, 976 F.2d

169, 174-75 (4th Cir.), cert. denied, 113 S. Ct. 27

(1992)); Jones, 976 F.2d at 174-75 (stating without

elaboration that the “instructions clearly direct the jury

away from that result by requiring that something extra

be present,” i.e., moral turpitude and psychical debase-

ment surpassing malice and premeditation); Jones v.

Murray, 947 F.2d 1106, 1119 (4th Cir. 1991), cert.

denied, 112 S. Ct. 1591 (1992) (citing Turner v. Bass,

753 F.2d 342, 351 (4th Cir. 1985) ); Turner, 753 F.2d

at 351 (“[T])he Virginia Court has also given a limiting

construction to two components of the vileness criterion.

Depravity of mind has been construed to mean ‘a degree

of moral turpitude and psychical debasement surpassing

that inherent in the definition of ordinary legal malice and

premeditation.’ ” (citation omitted) ).

Because the court below has repeatedly endorsed deci-

sions of the Virginia Supreme Court which conflict with

applicable decisions of this Court, the Court should grant

certiorari on the issue of failure to narrow as well as

vagueness.

SO Oe Ee Oana,

23

II. THE COURT OF APPEALS’ REJECTION OF PETI-

TIONER’S INEFFECTIVE ASSISTANCE OF COUN-

SEL CLAIM DEPARTS FROM THE PRECEDENTS

IN THIS COURT AND OTHER COURTS OF

APPEALS.

The Sixth Amendment’s guarantee of the right to assist-

ance of counsel mandates that such assistance be effective.

Strickland v. Washington, 466 U.S. 668, 686 (1984).

In Strickland, this Court elucidated a three-part test to

determine if counsel’s performance fails to meet this stand-

ard: (1) counsel’s representation must fall below an ob-

jective standard of reasonableness, 466 U.S. at 687; and

(2) the deficient performance must prejudice the defense,

466 U.S. at 687; but (3) counsel’s strategic choices are

entitled to deference if “made after thorough investigation

of law and facts relevant to plausible options,” 466 U.S.

at 690. Some conduct by counsel is so unreasonable, so

prejudicial and so unlikely to constitute trial strategy that

it constitutes ineffective assistance of counsel as a matter

of law.

Several lower court decisions have ruled that failure

to put on evidence promised in an opening statement by

itself constitutes ineffective assistance of counsel. Ander-

son v. Butler, 858 F.2d 16, 19 (1st Cir. 1988), held that

the failure to put on expert witnesses promised in defense

counsel’s opening statement was “prejudicial as a matter

of law.” When faced with a fact pattern nearly identical

to the one presented in this petition, the Seventh Circuit

held as follows:

[C]ounsel decided not to present these available wit-

nesses; he chose to gamble on his perceptions about

the weakness of the prosecution’s case. By resting

without presenting any of the evidence in favor of

the defense, counsel left the jury free to believe [the

prosecution’s] account of the incidents as the only

18 The guarantee of effective assistance of counsel extends to

capital sentencing proceedings. Strickland, 466 U.S, at 684-87,

26

made during the pretrial period and his notes during the

resentencing hearing itself indicate that he knew his

preparation was woefully inadequate. He failed to sub-

poena or even interview a single mitigation witness.”

Counsel must have known that his failure to prepare

would all but preclude presentation of the evidence he

was promising to the jury in his opening statement. Yet

he promised testimony, knowing the results in Turner I,

knowing that the jury was aware of the prior verdict,

knowing the prosecution’s case, knowing that he was not

prepared to make good on his promises, knowing his

evidence.” Turner v. Williams, 35 F.3d 872, 895 (4th Cir. 1994).

Indeed, to the extent the court of appeals attributed counsel’s

failure to put on evidence to “strategic choices” (35 F.3d at

903, 904), it is important to bear in mind that Strickland allows

for deference to counsel’s decisions only if they are based on a

“thorough investigation of law and facts relevant to plausible

options.” 466 U.S. at 690. The failure to make thorough investi-

gation is permissible only to the extent that ‘reasonable profes-

sional judgments support the limitations on investigation.” 466

U.S. at 691.

That counsel’s failures were a result of poor preparation and

were not attributable to fear of rebuttal is evident from his failure

to introduce the evidence of Petitioner’s role in saving hostages

from murder and rape even when there was a risk-free opportunity

to do so during cross-examimation. When Commonwealth witness

J.E. Mills, who read the statements favored by the prosecution,

finished testifying, the prosecutor asked him whether he had re-

viewed every statement relating to the incident. After he answered

in the affirmative, giving defense counsel a perfect opportunity to

cross-examine on Petitioner’s role, counsel did nothing.

23 With regard to Dr. Fisher, the expert witness appointed to

testify on Petitioner’s behalf, the court below deciared: “In the

instant case, Snook intended at outset to present the evidence

described in opening statement” (Turner v. Williams, 35 F.3d 872,

904 (4th Cir. 1994)) and that “[o]ne direct meeting [between Dr.

Fisher and] Mr. Turner was all that [was] necessary” (35 F.3d

at 898). Yet Dr. Fisher had not met Petitioner when counsel made

his promises during the opening statement. Even by this absurdly

low standard, counsel was not prepared to present the evidence when

he promised it to the jury.

NB EE TT oe Ni ais

27

client’s life was at stake. And then he rested without put-

ting on any case whatsoever.

When considering Virginia’s system of representation

in capital cases, Chief Justice Rehnquist observed that:

Virginia may quite sensibly decide to concentrate the

resources it devotes to providing attorneys for capital

defendants at the trial and appellate stages of a

capital proceeding. Capable lawyering there would

mean fewer colorable claims of ineffective assistance

of counsel to be litigated on collateral attack.

Murray v. Giarratano, 492 U.S. 1, 11 (1989). Unfor-

tunately, that admonition came too late for Petitioner.

He did not receive effective assistance of counsel during

his resentencing hearing, and the Constitution requires

that his death sentence be vacated and that the case be

returned for a fair resentencing.

28

CONCLUSION

For all of the foregoing reasons, this petition for a

writ of certiorari should be granted.

Dated: January 17, 1995

Co-Counsel:

WALTER J. WALVICK

JAMES VANR. SPRINGER

ADAM PROUJANSKY

DICKSTEIN, SHAPIRO & MORIN,

L.L.P.

2101 L Street, N.W.

Washington, D.C. 20037-1526

(202) 785-9700

DANIEL A. REZNECK

KATHLEEN A. BEHAN

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036-6885

(202) 872-6700

ALEXANDER H. SLAUGHTER

J. WILLIAM BOLAND

McGUIRE, WooDs, BATTLE &

BOOTHE

One James Center

901 East Cary Street

Richmond, VA 23219-4030

(804) 775-1000

Respectfully submitted,

HOWARD W. GOLDSTEIN

(Counsel of Record)

MICHAEL F, COoLosI

FRIED, FRANK, HARRIS, SHRIVER

& JACOBSON

(A Partnership Including

Professional Corporations)

One New York Plaza

New York, New York 10004-1980

(212) 820-8000

Counsel for Petitioner

Willie Lloyd Turner

WM. BRADFORD REYNOLDS

COLLIER, SHANNON, RILL &

Scott

3050 K Street, N.W., Suite 400

Washington, D.C. 20007

(202) 342-8400

ARTHUR F.. MATHEWS

THOMAS F.. CONNELL

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6500

CARL S. NADLER

DONALD B. VERRILLI, JR.

JENNER & BLOCK

601 Thirteenth Street, N.W.

Twelfth Floor

Washington, D.C. 20005

(202) 639-6000

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