Opposition Brief — Powell v. Kelly (No. 09-21)

BP (CZ) ee hal

No. 09-21 JUL 8 - 2009

In The

Supreme Court of the Anited States

*

PAUL WARNER POWELL,

Petitioner,

Vv.

LORETTA K. KELLY, WARDEN,

Sussex I State Prison,

Respondent.

®

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

e

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

¢

WILLIAM C. MIMS

Attorney General of Virginia

JERRY P. SLONAKER

Senior Assistant Attorney General

KATHERINE B. BURNETT

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-9642

(804) 786-0142 (fax)

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTIONS PRESENTED

Is there a compelling reason to review the federal

habeas court’s judgment upholding the state

court’s decision — which this Court already

rejected as grounds for review on direct appeal —

that denied a double jeopardy claim because the

intent of the state legislature is that separate

capital murder offenses are committed whenever

there are separate victims of the gradation

offenses?

Should this Court consider granting a stay of

execution, or certiorari review, on Powell’s

assertion that his double jeopardy and ineffective

assistance of counsel claims both involve the

issue in the grant of certiorari in Wood v. Allen

(involving a federal court’s analysis of state-court

fact-finding), despite the fact that Powell’s case

only involved state law determinations and no

facts were at issue?

ll

TABLE OF CONTENTS

Page

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STATEMENT OF THE CASE. .....................:eeeeeee 2

I. The First Trial and Appeal............. aeaanaees 2

Il. The Second Trial and xa iirenasnnce 10

Ill. The State Habeas Corpus Case................. 15

IV. The Federal Habeas Corpus Case............. 16

REASONS WHY THE PETITION FOR A WRIT

OF CERTIORARI AND APPLICATION FOR

STAY SHOULD BE DENIED............................ 17

I. Powell never has presented his first

argument to any court and, in any event,

it fails to merit further review ................. . at

Il. Powell’s bill of particulars argument

addresses no federal issue.......................-- 20

Ill. The certiorari questions at issue in Wood

v. Allen are not at issue here..................... 25

Nee cccccccccccccccecescsccccsccscs MS

111

TABLE OF AUTHORITIES

Page

CASES

Barefoot v. Estelle, 463 U.S. 880 (1983)..................... 32

Blockburger v. United States, 284 U.S. 299

CIE iis intend ujacescmveasere eee pabclideleencbua 22, 23

Brown v. Ohio, 482 U.S. 161 (1977)...................ccceceee 24

Bullington v. Missouri, 451 U.S. 480 (1981)....17, 19, 20

Clark v. Arizona, 548 U.S. 735 (2006) ...................00 18

Harward v. Commonwealth, 330 S.E.2d 89 (Va.

Be ciinscitsinirsanisacecanteemccecaae aan eas aan 9

Illinois v. Gates, 462 U.S. 213 (1983)......................08 18

Kentucky v. Stincer, 482 U.S. 730 (1987)................... 18

Livingston v. Commonwealth, 36 S.E.2d 561

CPs Fein tssvenscdcasecntusenccsrencsntseigaeae ease 13, 21

Payne v. Commonwealth, 509 S.E.2d 293 (Va.

BD ovssacisacicouuentedsinesvo nascent ae 9, 21

Powell v. Commonwealth, 552 S.E.2d 344 (Va.

DOI vnsixscisctccesetsg caenerminnaee 6, 8, 9, 14, 18

Powell v. Commonwealth, 590 S.E.2d 537 (Va.

PGS vxcdsccerinndiieniee eee 14, 15, 21, 24

Powell v. Kelly, 531 F. Supp.2d 695 (E.D. Va.

I ics sipieceseneesenc ee ee ee 16, 24

Powell v. Kelly, 551 U.S. 1118 (2007)...................00008 16

Powell v. Kelly, 562 F.3d 656

(40s GE: Be eka 16, 24, 27, 28, 29

Powell v. Virginia, 543 U.S. 892 (2004) ...........0.0..0.... 15

iv

TABLE OF AUTHORITIES — Continued

Page

Powell v. Warden, 634 S.E.2d 289

i, rence rcobahelyaccgarenilacadscuinniosie 16, 29, 30, 31

Ring v. Arizona, 536 U.S. 584 (2002)............... eee 19

Sanabria v. United States, 437 U.S. 54 (1978)....23, 24

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ...... 17

Schriro v. Landrigan, 550 U.S. 465 (2007)................ 27

Strickland v. Washington, 466 U.S. 688 (1984).....16, 29

United States v. Dixon, 509 U.S. 688 (1993).............. 23

Wiggins v. Smith, 539 U.S. 510 (2008)....................04. 26

Wood v. Allen, 129 S.Ct. 2389 (2009) ................... 25, 31

Williams v. Taylor, 529 U.S. 362 (2000)..................... 27

STATUTES AND RULES

Federal Statutes:

28 U.S.C.::

ee 16, 27

SE acai sos ss aces casanvonvduns ccceusavcuneatsaeectees 16, 27, 31

os cccc2 css wads lakseneadeccebaorereteaneete 25, 26, 28

RENE a ee aR Pn Seer eae rn BAST ects 27, 31

oasis fax oacoun ucestcovaneanniddsauitescuenieiel 26, 28, 31

Code of Virginia

i IIE 3. ca cccuntacaciniancieksesioumurtuceaneaniediaataeseeierae 6

Oe rec ctevecn ph caieconnvcaciessuewenecraiseseutons +1 Oy A

TABLE OF AUTHORITIES — Continued

Page

IN hoc cia cisenciaasaassivseceniensaeomusensiuonsenaanel 6

oO Der ip rilebi ss ocd aan: 7

© BO esccececscees deuavaeddapsek dates saansseieetocieenaascenanca 6

IIL sos ccc das dish nunca puanedahusdabeesepwudenienseaeiied A 13

I iia ca sas cas csc uaacseancsusbanedovwvavsessouusetoneuen 16, 17

NE ari hu eecetc cua eametans 18

1

INTRODUCTION

No court ever has granted relief to Paul Powell

on his currently-claimed allegations of double

jeopardy and ineffective assistance of counsel. Powell

now fully admits his guilt and says his crimes of

murder, attempted rape, rape, and attempted murder

were “atrocious.” However, he omits those “atrocious”

facts, including his own expert’s evaluation of him

which described a_ severe psychopathy. Those

“atrocious” facts were crucially integral to the lower

courts’ finding, on his claim of ineffective assistance,

that Powell was not prejudiced by his trial counsel’s

failure during the sentencing phase to object to one

inaccurate entry on a criminal records form.

Powell’s certiorari petition misrepresents the

legal holdings of the state supreme court and federal

habeas courts, all of which rejected his claims. On his

double jeopardy claim, he ignores the settled state

law which defined the very acts he personally boasted

he had committed as separate offenses perpetrated

against two different victims. On his ineffective

assistance claim, he repeatedly mistakenly implies

that the Commonwealth purposefully presented his

sentencing jury with false evidence when there never

has been one shred of evidence to support such an

implication. He misstates that the criminal record

form contained numerous errors when, in fact, there

only ever has been one error identified by Powell. And

he ignores the holdings of all the lower courts which

found that the one error was non-prejudicial because

the role the form played in the sentencing proceeding

2

was virtually non-existent, the error could not have

affected the jury’s separate finding of vileness to

support the death sentence, and the error would not

have changed one juror’s vote when the whole record,

which proved Powell’s future dangerousness by

overwhelming evidence, is considered.

Finally, Powell attempts to stop his execution by

misrepresenting that his case, and the judgment of

the Fourth Circuit, are similar to another case upon

which this Court has granted certiorari. This Court

shovld not be misled by Powell’s exaggeration and

mischaracterization of the facts end law involved in

his case.

STATEMENT OF THE CASE

I. The First Trial and Appeal

As found by the Virginia Supreme Court, the

facts of Powell’s brutal crimes are as follows:

Powell was acquainted with Stacie Lynn

Reed (Stacie) for two and a half years prior

to the commission of the crimes in question.

Kristie Erin Reed (Kristie), Stacie’s younger

sister, described her sister and Powell as

“(f |Jriends.” Powell, who was 20 years old at

the time of the murder, had wanted to date

Stacie, who was 16 years old, but recognized

that she was underage and he “could go to

jail for that.”

3

Powell, a self-avowed “racist and white

supremacist,” was aware that Stacie, who

was white, was dating Sean Wilkerson, who

is black. Wilkerson had recently moved to

another locality, but he and Stacie remained

in contact. Stacie was a member of her high

school’s Junior Reserve Officer’s Training

Corps and planned to attend a military ball

with Wilkerson.

Just before noon on January 29, 1999, Stacie

arrived home fxom school early, having

completed her examinations that were being

given that day. Powell was waiting for her at

her home when she arrived. When Powell

learned that Robert Culver, a friend of the

girls’ mother, would be home shortly for

lunch, Powell left and returned at about

12:45 p.m., after Culver had left. When

Powell returned, he was armed with a

“survival” knife, a “butterfly” knife, a box

cutter, and a 9-millimeter pistol.

Stacie was talking to Wilkerson on the

telephone. After Stacie ended the telephone

conversation, Powell confronted her about

her relationship with Wilkerson. He

demanded that Stacie end her relationship

with Wilkerson. According to Powell, he and

Stacie argued, and the argument grew into a

struggle. Powell drew the survival knife from

his belt and Stacie “got stuck.” Powell denied

stabbing Stacie deliberately. The struggie

continued briefly until Stacie collapsed on

the floor in her sister’s bedroom.

4

Although Powell did not know whether

Stacie was still alive, he made no effort to

determine her condition or call for medical

assistance. Powell “wandered around the

house, got some iced tea, had a cigarette.”

Kristie arrived home from school shortly

after 3 p.m. and was met at the door of the

home by Powell. Powell told her that Stacie

was in her room, but moments later Kristie

discovered her sister’s body in Kristie’s

bedroom. She dropped her schoolbooks and

began to cry.

Powell ordered Kristie to go to the basement.

Kristie, who knew that Powell was usually

armed, complied because she “didn’t want to

die.” In the basement, Powell ordered Kristie

to remove her clothes and to lie on the floor.

Powell then raped Kristie, and she “beggied]

him not to kill her.” Powell later admitted

that he knew that Kristie, who was 14 years

old at the time of the rape, had been a virgin.

While Powell and Kristie were in the

basement, Mark Lewis, a friend of Kristie,

came to the house and knocked on the door.

When Powell heard the knock, he tied

Kristie’s legs together and tied her hands

behind her back with shoelaces he cut from

her athletic shoes. Powell then dressed and

went upstairs.

While Powell was upstairs, Kristie managed

to loosen the bonds on her hands and

attempted to “scoot across the floor to hide”

under the basement steps. Hearing Powell

5

coming back to the basement, she returned

to the position on the floor where he had left

her. Powell then strangled Kristie with a

shoelace and she lost consciousness. While

she was unconscious, Powell stabbed Kristie

in the abdomen and slit her wrists and

throat.

Powell returned upstairs, searching for

“anything worth taking.” He fixed another

glass of iced tea, which he took with him

when he left the home a short time later.

Powell went to a friend’s house and then

drove with the friend to the District of

Columbia to buy crack cocaine.

Kristie regained consciousness sometime

after Powell had left her home. About 4:10

p.m., she heard Culver return home, and she

called out his name. Culver discovered

Kristie in the basement, called the 911

emergency response telephone number, and

began rendering first aid to her... .

An autopsy revealed that Stacie had died

from a knife wound to the heart. The medical

examiner testified that there was a single

entrance wound and two exit wounds

indicating that the knife had _ been

withdrawn, at least partially, and then

reinserted into the heart... .

Stacie’s body also exhibited a number of

bruises on the head, chest, abdomen, back,

arms, and legs, abrasions on the face, a stab

wound to the back, and a cut and scrapes on

the left forearm. The autopsy further

6

revealed that Stacie had been struck on the

head with sufficient force to cause bleeding

inside her scalp and in the membranes

surrounding her brain prior to death. ...

While in jail, Powell wrote letters to friends

in which he admitted having committed

the murder, rape, and attempted murder

because of Stacie’s relationship with a black

man. He further claimed that he had

planned to kill Stacie’s family and steal the

family’s truck. Powell also wrote to a female

friend and asked her to “get one of [her] guy

friends ... to go to a pay phone and call

Kristie and tell her [that] she better tell the

cops she lied to them and tell her [that] she

better not testify against me or she’s gonna

die.”

Powell v. Commonwealth, 552 S.E.2d 344, 347-48 (Va.

2001). A grand jury in Prince William County,

Virginia indicted Powell in 1999 for his capital

murder of Stacie in the commission of robbery or

attempted robbery (Va. Code § 18.2-31(4))', and for

his rape (Va. Code § 18.2-61) and attempted murder

(Va. Code § 18.2-26) of Kristie.

The trial court granted the Commonwealth's

request to amend the indictment to add the charge of

capital murder during the commission of rape or

' In Virginia, capital murder is defined as a premeditated

murder coupled with a_ specifically defined additional

circumstance, or gradation offense, such as robbery or rape. Va.

Code § 18.2-31(1-15).

7

attempted rape. Va. Code § 18.2-31(5).’ The court

denied Powell’s objection to the amendment, but

granted him a bill of particulars from the Common-

wealth to name the victim of the rape/attempted

rape. The prosecutor represented in the bill of

particulars that that victim was Kristie. (JA 22).°

At the close of the evidence, the court instructed

the jury that it could find capital murder if the

Commonwealth proved beyond a reasonable doubt a

premeditated murder in the commission of robbery or

attempted robbery, and/or an additional capital

murder if the Commonwealth proved beyond a

reasonable doubt a premeditated murder during the

commission of rape. (JA 59). There was no “attempted

rape” or “attempted rape of Stacie” option on the

capital murder instructions. The court also instructed

the jury that it was “immaterial that the victim of the

murder and the victim of the rape are two different

people.” (JA 63). On the instruction for the crime of

rape, the court instructed that the victim was Kristie.

(JA 64).

* The amendment also included other language from

§ 18.2-31(5) charging the “commission of sodomy or attempted

sodomy,” but no evidence of sodomy was presented and the jury

was not so instructed. There is no issue now regarding that

language.

* References to the joint appendix filed below in the Fourth

Circuit are denoted herein as “(JA __).” A copy of the joint

appendix has been lodged with this Court.

8

During their guilt-phase deliberation, the jury

asked the court whether the rape of Kristie satisfied

the capital murder/rape charge. (JA 62). The court

told the jury it did. (JA 62).

The capital murder sentencing verdict form

specified that the jury found Powell guilty of capital

murder in the commission of rape. (JA 78). The jury

did not return a verdict of guilty on the capital

murder/robbery charge. The court polled the jury on

its verdict. Each juror verbally stated that rape, not

attempted rape, was the predicate offense for the

capital murder conviction. (JA 70-72). The jury also

convicted Powell of the rape and attempted murder of

Kristie. In a separate sentencing proceeding, the jury

sentenced Powell to death for capital murder and to

life terms for-the other crimes.

In his 2001 direct appeal, Powell challenged the

amendment of the indictment, specifically arguing

that the amendment had charged Kristie as the

alleged victim of the rape: “In the case now before

this Court for review, the victim of the homicide and

the alleged robbery was one person, Stacie Reed,

while the victim of the alleged rape and sodomy was

another person, Kristie Reed.” (JA 923).

The Supreme Court of Virginia reversed the

capital conviction. Powell v. Commonwealth, 552

S.E.2d 344 (Va. 2001). Two errors occurred. First, the

tria! court should not have allowed the amendment

because the General Assembly intended that each

enumerated capital crime be a separate offense, see

9

Payne v. Commonwealth, 509 S.E.2d 2938, 301 (Va.

1999), and the Commonweaith could not add a new

offense which had not been found first by the grand

jury. Only minor defects or variances in indictments

are permitted to be corrected by amendment. Powell,

552 S.E.2d at 356-57.

Second, the Commonwealth mis-worded its

amended indictment to include the language “during”

the commission of rape, instead of “in” the

commission of rape. The former is restricted to crimes

of murder occurring during or after the rape; the

latter permits crimes of murder occurring before,

during, or after a rape. See Harward 0.

Commonwealth, 330 S.E.2d 89, 91 (Va. 1985).*

Because it was uncontested that Powell murdered

Stacie before he raped Kristie, the murder could not

have occurred “during” the commission of rape. The

court remanded for re-trial on first-degree murder

due to the amendment error, and because there was

no evidence even to support the amended indictment.

Powell, 552 S.E.2d at 356-57, 363.

“ After Harward, the General Assembly amended the

statute to permit the more expansive crime of murder “in” the

commission of rape, however, the Commonwealth in Powell

mistakenly used the older, more restrictive, language discussed

in Harward.

10

II. The Second Trial and Appeal

After remand, Powell wrote the prosecutor an

obscene letter boasting that, because he could not be

re-tried for capital murder, he would tell “the rest of

what happened.” (JA 141). He described in detail

how, when Stacie refused to have sex with him, he

attempted to rape her, and how, when she fought

him, he stabbed her in her abdomen, and then

stomped repeatedly on her throat until she was

dead. (JA 141-44). The prosecutor nolle prossed the

remanded first degree murder charge, and obtained a

new indictment for capital murder on December 3,

2001, of Powell’s capital murder of Stacie during the

commission of his attempted rape of Stacie. (JA 108).

Before trial, Powell filed motions seeking to

dismiss the capital murder indictment on double

jeopardy grounds. The trial court found that the new

indictment charged a different offense than had been

tried in the first trial: neither the original 1999

indictment, nor the amended indictment, charged the

capital murder of Stacie based on the rape or

attempted rape of Stacie and the bill of particulars

specified that Kristie was the only victim of the

predicate offense of rape in the first trial. (JA 123,

139-40). The jury convicted Powell as charged.

In the separate sentencing phase, the prosecutor

relied on the shocking evidence of the crimes

themselves, and also presented evidence of Powell’s

self-professed racial hatred and desire to continue to

kill through letters, drawings, and other admissions.

11

(JA 174-75). He killed Stacie because she was a

“nigger-lovin slut,” and he wanted to kill all black

people. (Tr. 1/15/03 at 52-63). The jury received an

offensive letter Powell had written to Stacie’s mother

after the murder that mocked her dead daughter with

a photograph of a partially nude woman. (JA 168-69).

They learned that Powell had tried to threaten

Kristie’s life if she testified against him. (Tr. 1/15/03

at 1217). They learned that Powell had tortured

animals by blowing them up with firecrackers. (JA

189). They heard the heart-wrenching “911” call made

when Robert Culver discovered the girls. (Tr. 1/14/03

at 39). They listened to the testimonies of Mr. Culver,

Mrs. Reed and Kristie, learned how Kristie

miraculously survived, but suffered horrific physical

and mental trauma for many months, and viewed the

terrible scars Kristie bears for the rest of her life

across her throat. (Tr. 1/14/03 at 641-712).

They learned that Powell admitted he also would

have shot and killed Mr. Culver if he had found

Poweil still there (Tr. 1/14/03 at 171), and Powell’s

view that the judge and jury “don’t mean shit to me.”

(Id. at 172-73). They heard how the murder and rape

tore the Reed family apart, resulting in their

abandoning the house where it happened (their

“dream home”), in Mrs. Reed being unable to leave

Kristie alone, and ultimately leading Mrs. Reed and

Mr. Culver, who had married shortly after the crimes,

into divorce. (Tr. 1/15/03 at 76).

The jury also heard from Powell’s own witnesses

that he had been in and out of juvenile detention and

12

psychiatric hospitals since about the age of 11.

(JA 277). Powell’s psychologist told the jury that

Powell was aggressive, defiant, impulsive, egocentric,

opportunistic, exploitative, exhibited violent outbursts

and had extreme “reactive anger.” (JA 271-87).

The prosecutor submitted to the jury, without

objection, the national criminal information form

provided by the FBI which contained Powell’s prior

criminal record (the NCIC form). (JA 183, 606). The

prosecutor stated orally, and accurately, to the jury

that Powell had been cunvicted of the abduction, rape

and attempted murder of Kristie as well as prior

convictions for larceny and contributing to the

delinquency of a minor. (JA 183). The NCIC form was

not mentioned at trial other than to admit it into

evidence.

The form accurately contained one entry for

capital murder which was the conviction that had

been reversed. on appeal. (JA 606). The jury knew

about that conviction and reversal, both from Powell’s

own letter to the prosecutor (JA 141-44), and from his

trial counsel who informed the jury about the prior

conviction and reversal. (JA 166-67). The form

contained a second accurate entry for capital murder

which was listed as a pending charge and which was

the case before the jury for decision. (JA 607). The

form also contained a third entry for capital murder

which was inaccurate. That entry mistakenly listed

13

“capital murder” for Powell’s “attempted capital

murder” of Kristie. (JA 606).°

The jury found that Powell would commit violent

acts that would constitute a continuing serious threat

to society, and that his crimes were vile in that they

constituted depravity of mind and aggravated battery.

See Va. Code § 19.2-264.4.

On direct appeal, Powell argued that (1) the

Virginia Supreme Court’s opinion in the first appeal

mandated that he not be tried for capital murder.

(2) the “law of the case” precluded another trial

for capital murder, and (3) double jeopardy barred

the second prosecution. The Virginia Supreme Court

unanimously rejected these arguments after

thoroughly discussing them. It specifically held as a

matter of state law:

As noted above, while “it is true the bill of

particulars is not for the purpose of charging

the offense ... the bill of particulars and

the indictment must be read _ together.”

Livingston, 184 Va. at 837, 36 S.E.2d at 565.

* There were no other entries on the NCIC form for Powell’s

attempted capital murder. Also, the inaccurate entry listed

“felonious assault” as the original charge, the same original

charge listed on the Virginia State Police disposition form

associated with Powell’s attempted capital murder of Kristie.

(JA 568). And, in addition to the same arrest and charging dates

associated with the attempted capital murder, it also listed the

same sentencing hearing date and code section for assault found

on the charging papers associated with the attempted capital

murder. (JA 563-69).

14

Thus, we hold that where, prior to the

attachment of jeopardy, the Commonwealth

limits the prosecution of a capital murder,

undifferentiated in the indictment by the

identity of the victim of the gradation

offense, by naming a specific victim of the

gradation offense in a bill of particulars,

jeopardy will attach only to the capital

murder charge as made specific by the bill of

particulars.

Powell v. Commonwealth, 590 S.E.2d 537, 554 (Va.

2004). It also held that the prosecutor’s comments in

the first trial about Powell wanting to have sex with

Stacie could not support a theory that the jury

actually acquitted him of the attempted rape of Stacie

because, as a matter of state law, the jury was not

making any determination of a charge of attempted

rape of Stacie. Jd. at 550-52.

It clarified that, in the first appeal, it never had

held that the evidence was insufficient to find that

Powell had attempted to rape Stacie. Rather, its

comments in its conclusion, Powell, 552 S.E.2d at 363

(“that there is simply no evidence upon which the

jury could have relied to find that Powell committed

or attempted to commit any sexual assault against

Stacey [sic] before or during her murder, or that the

rape of Kristie did not occur after the murder of her

sister”) were “made to clarnfy that the amended

indictment must have been intended to charge Powell

with the capital murder of Stacey [sic] premised upon

the gradation offense of the rape of Kristie, but was

15

insufficient to do so because of a drafting error.” 590

S.E.2d at 552.

Powell’s subsequent petition for a writ of

certiorari in this Court was based solely on his double

jeopardy claim. This Court denied his petition on

October 4, 2004. Powell v. Virginia, 543 U.S. 892

(2004).

III. The State Habeas Corpus Case

In his state habeas petition filed in the Virginia

Supreme Court, Powell argued that he had been tried

twice for the same offense, the Commonwealth was

collaterally estopped from prosecuting him again for

capital murder, and his trial counsel were ineffective

because they did not object to the NCIC form at

sentencing which he alleged contained numerous

errors, including two capital murder entries. The

Virginia Supreme Court unanimously rejected

Powell’s habeas claims in its unpublished November

8, 2005, decision. (JA 517).

The court subsequently granted Powell’s petition

for rehearing on his argument that his trial counsel

were ineffective for failing to object to a third capital

murder entry on the NCIC form, specifically the

inaccurate capital murder entry described above.

After full briefing and oral argument on the issue,

the Virginia Supreme Court dismissed the claim in

a published opinion finding no prejudice under

16

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

v. Warden, 634 S.E.2d 289 (Va. 2006).° The court

denied Powell’s subsequent, second petition for

rehearing on January 5, 2007. (JA 634).’ As required

by Virginia Code § 53.1-232.1, on January 17, 2007,

the Prince William County Circuit Court set Powell’s

execution date for February 15, 2007.

IV. The Federal Habeas Corpus Case

On January 25, 2007, the United States District

Court stayed the execution. On July 6, 2007, Powell

filed a habeas petition under 28 U.S.C. § 2254 in the

district court alleging his double jeopardy and

ineffective assistance claims. On January 11, 2008,

the district court dismissed the claims, finding that

the state court’s adjudication was not unreasonable

under § 2254(d). Powell v. Kelly, 531 F. Supp.2d 695

(E.D. Va. 2008).

On April 15, 2009, after full briefing and

argument, the United States Court of Appeals for the

Fourth Circuit affirmed the dismissal in a lengthy

opinion. Powell v. Kelly, 562 F.3d 656 (4th Cir. 2009).

The Fourth Circuit denied Powell’s petition for

* A majority of the court found that the dissenting opinion

failed to take into consideration the totality of the evidence to be

weighed in determining the issue of prejudice, as required by

this Court in Strickland. Powell, 634 S.E.2d at 297, n.*.

” On June 11, 2007, this Court denied Powell’s second

petition for a writ of certiorari. Powell v. Kelly, 551 U.S. 1118

(2007).

17

rehearing on May 12, 2009, with no judge requesting

a poll on Powell’s request for rehearing en banc.

On May 19, 2009, pursuant to Virginia Code

§ 53.1-232.1. the Circuit Court of Prince William

County scheduled Powell’s execution for July 14,

2009. On July 2, 2009, the Fourth Circuit denied

Powell’s motion for a stay of execution. This Court

docketed Powell’s petition for a writ of certiorari on

July 6, 2009.

¢

REASONS WHY THE PETITION FORA

WRIT OF CERTIORARI AND APPLICATION

FOR STAY SHOULD BE DENIED

I. Powell never has presented his first

argument to any court and, in any event,

it fails to merit further review.

Powell argues that he was put into jeopardy of

his death sentence in his first trial and that he was

acquitted of death in that proceeding. He relies upon

this Court’s line of cases starting with Bullington v.

Missouri, 451 U.S. 430 (1981), dealing with the issue

of “whether a first life sentence was an ‘acquittal’

based on findings sufficient to establish legal

entitlement to the life sentence — u.e., findings that

the government failed to prove one or more aggra-

ating circumstances beyond a reasonable doubt.”

Sattazahn v. Pennsylvania, 537 U.S. 101, 108 (2003).

However, Powell never presented this argument in

the court below as grounds for reversal and the

18

Fourth Circuit, whose judgment is before this Court

for review, never addressed it. Where a petitioner’s

claim was “neither pressed nor passed upon” in the

lower court, this Court consistently has held that it

will not consider it. See Clark v. Arizona, 548 U.S.

735, 765 (2006), citing Kentucky v. Stincer, 482 U.S.

730, 747, n.22 (1987), and Illinois v. Gates, 462 U.S.

213, 217-24 (1983). Powell thus fails to demonstrate

the necessary compelling reason for review. See U.S.

Sup. Ct. Rule 10.

In any event, the issue is simply not presented in

Powell’s case. Powell never was “acquitted of death.”

His claim deals instead with the issue of double

jeopardy in the traditional sense: was he tried twice

for the same crime? It involves no prior finding of

entitlement to a life sentence, or any other sentencing

issue. Indeed, the first jury sentenced him to death

and found the necessary sentencing-phase, statutory

aggravating circumstance to support the death sen-

tence. Powell, 552 S.E.2d at 354. The validity of

Powell’s death sentence, or the sufficiency of the

evidence supporting the jury’s finding of an aggra-

vating factor, never has been at issue in his case.

What Powell seems to try to argue, for the first

time, is that Virginia’s capital murder elements set

out in Virginia Code § 18.2-31(1-15) (premeditation

plus another statutorily-defined circumstance, or

gradation offense, like rape), are like sentencing-

phase aggravators in other States’ capital murder

statutes, and therefore actually are sentencing

factors. Therefore, his argument goes, if he has been

19

put in jeopardy for any of those elements once, he

may not be put in jeopardy of them again under

Bullington. The problems with this theory are many.

First, there is no authority cited by Powell, and

certainly none from this Court, to support his theory.

Second, Bullington only applies where there has been

a life sentence imposed for murder; Powell never has

been sentenced to life.

Third, the elements of a crime, and the

sentencing-phase aggravators necessary to a death

sentence, are distinct matters proving different

things. Whether the defendant committed a crime,

and whether he is deserving of a particular sentence,

are separate inquiries determined at separate phases

or “trials.” Virginia’s capital murder elements are not

sentencing phase elements or factors. They are

elements required by statute to prove guilt of the

crime, not the sentence.

Fourth, Powell’s citation to Ring v. Arizona, 536

U.S. 584 (2002), for the proposition that what you call

an aggravator is irrelevant, misunderstands what

was at issue in Ring. Ring did not address the Fifth

Amendment prohibition against double jeopardy at

trial or sentencing. Ring was a Sixth Amendment

case addressing only the right to a jury determination

of sentencing phase facts which are necessary to

consideration of a death sentence, and Virginia has

required jury-sentencing since Colonial times.

20

Fifth, Powell was acquitted in his first trial of

capital murder in the commission of robbery when

the jury failed to return that verdict. He never again

may be tried for that crime. He was acquitted in his

first appeal when the Virginia Supreme Court found,

as a matter of law, that capita) murder cannot be

committed during the commission of a _ rape

committed after the murder. He never again may be

tried for capital murder during the commission of his

rape of Kristie.

But Powell never was acquitted, at trial or on

appeal, of a death sentence. No jury or court ever has

found that the Commonwealth failed to prove the

sentencing-phase, aggravating factors necessary to

obtain a death sentence, or even that those factors

otherwise were found in error. Powell is simply wrong

in his assertion that the Virginia Supreme Court’s

discussion of the capital murder elements somehow

was a discussion of “death-qualifying elements.”

Powell’s attempt to put a square peg into a round

hole with his confusing Bullington argument is

simply inapposite to his case. It certainly does not

merit review by this Court.

Il. Powell’s bill of particulars argument

addresses no federal issue.

In his second argument, Powell takes issue, as

he did below, with the Virginia Supreme Court’s

application of its settled law that a bill of particulars,

and particularly one like Powell’s which expressly

21

was sought by the defendant for his benefit, must be

read together with the indictment to determine for

what offenses the defendant has been tried. See

Powell, 590 S.E.2d at 554, citing Livingston v.

Commonwealth, 36 S.E.2d 561, 565 (Va. 1946).

Powell’s argument is over how Virginia defines her

offenses, not over any federal law. It thus fails to

present this Court with any federal issue to decide.

Indeed, Powell’s whole argument is dependent

upon having this Court ignore the bill of particulars

which, the Virginia Supreme Court determined,

identified in this particular case, along with the

indictment, the offense for which Powell was first

tried and acquitted: (1) premeditated murder; (2)

committed during or after; (3) his rape of Kristie. He

does not quibble with the fact that the Virginia

legislature intended in its capital murder statute to

define separate offenses for (1) each gradation of

capital murder, and (2) for each separate victim of

each gradation offense. See Powell, 590 S.E.2d at

553-54, citing Payne, 509 S.E.2d at 301. He does not

quibble with the fact that, in his second trial, the

Commonwealth tried him for (1) premeditated murder

(2) committed during or after (3) his attempted rape

of Stacie. In fact, the indictment contained that very

language. His entire argument is that anything

outside the indictment should not have been

considered. But that is an argument with the Virginia

Supreme Court which he lost; it is not an argument

about federal constitutional law.

22

Powell never has cited a single case holding

that a State may not define its offenses by looking

at the indictment and bill of particulars together.

Certainly, with Powell expressly having asked the

Commonwealth in his first trial to limit herself to one

particular offense, no _ constitutional provisions

prohibited the Commonwealth from holding Powell to

his original request that he be tried only for that

offense. His decision to limit the Commonwealth in

his first trial to a crime he knew he had not

committed, and, at the same time, to keep only to

himself the knowledge that he had committed the

different offense of murder during the commission of

his attempt to rape Stacie, was no fault of the

Commonwealth. The Commonwealth was ready,

willing, and able to try him for any and ail crimes for

which there was evidence to prosecute.

Powell’s argument always has been dependent

upon re-writing Virginia law to do away with its

provision for identifying offenses by considering both

the bill of particulars and indictment together. Only

then could he construct his argument that the

elements of his crimes were the same under

Blockburger v. United States, 284 U.S. 299 (1932).

But Blockburger did not dictate how crimes are

defined; it involved this Court defining an offense

under a federal statute. Indeed, Blockburger argued

that his crimes were the same because they involved

sales to the same person, id. at 301, not unlike

Powell’s argument. It was the prerogative of this

Court to determine that Congress meant the offenses

23

to be different because they involved separate sales at

separate times. Jd. Likewise, it was the prerogative of

the Virginia Supreme Court to determine that the

Virginia General Assembly meant for there to be

different offenses when the murderer raped or

attempted to rape two different gradation victims. It

simply involves no federal issue.

Powell argues that the “facts” do not matter, and

only the “elements” matter under United States v.

Dixon, 509 U.S. 688 (1993). However, what Powell

fails to understand is that Dixon, another federal

statute case, was not addressing how a State defines

an offense, or even how the federal court makes that

determination. Dixon addressed the “same conduct”

test the Court had created just three terms prior and

now was overruling. Jd. at 704. It simply reaffirmed

the Blockburger test as the standard for assessing

double jeopardy claims involving an offense which

violates two or more statutes. See Dixon, 509 U.S. at

695 (criminal contempt based on a violation of a

criminal law incorporated into a court order bars a

subsequent prosecution for the criminal offense

because the elements of one are the elements of the

other and thus the defendant already has been tried

for the offense in the contempt proceeding). But

Powell’s offenses were different because they were

committed against two different persons: he

attempted to rape Stacie and he raped Kristie.

In Powell’s case, both the district court and

Fourth Circuit believed that Sanabria v. United

States, 437 U.S. 54 (1978), governed the issue and

24

that the state court, while not citing Sanabria,

followed that precedent reasonably by determining

legislative intent. Powell, 531 F. Supp.2d at 707-09;

Powell, 562 F.3d at 665-66. Certainly, the state court

in Powell’s case used the same analysis that Sanabria

used. In Sanabria, the Court held, with regard to a

federal statute, that “[flew, if any, limitations are

imposed by the Double Jeopardy Clause on the

legislative power to define offenses. Brown v. Ohio,

432 U.S. 161, 165 (1977).” 437 U.S. at 69. It further

heid that “[wJhether a particular course of conduct

involves one or more distinct ‘offenses’ under the

statute depends on this congressional choice.” Jd. at

70. Clearly, the Virginia Supreme Court determined

that its legislature intended that separate capital

offenses are committed when the murderer commits

the gradation offenses against separate victims.

Powell, 590 S.E.2d at 554. Because that holding was

not an unreasonable application of this Court’s

precedent, the Fourth Circuit cannot have erred in

affirming the district court’s same assessment. Its

straightforward analysis on a settled area of the law

presents nothing compelling to review.

Powell goes astray when he speaks of the

Virginia statutory framework as “multiple theories”

of capital murder. It is not. Instead, its capital

murder statute defines fifteen distinct offenses and,

under state supreme court interpretation, each

gradation offense committed against a separate

victim is a separate capital murder offense.

25

Powell’s argument that there is a conflict of

opinion on this in the state courts is a make-weigh .

argument. He cites a Maine and Louisiana case for

the proposition that any charged offense which was

within the scope of a previous charge is barred. But

no one argues with that general principle. Powell’s

charge of murder/attempted rape of Stacie simply

was not within the scope of the prior charge of his

murder/rape of Kristie. They were two different

offenses as determined unanimously by the Virginia

Supreme Court and citizens of the Commonwealth

through its elected General Assembly. There is no

legal issue in conflict and nothing compelling about

Powell’s double jeopardy claim.

Ili. The certiorari questions at issue in Wood

v. Allen are not at issue here.

Powell argues that this Court should grant

certiorari, or hold his case, until this Court decides

Wood v. Allen, 129 S.Ct. 2389 (2009) (granting

certiorari on questions 1 and 2). However, the

questions upon which this Court granted certiorari

simply are not at issue in Powell’s case. Question 1

asks whether a state court’s decision was based on

an unreasonable determination of facts under 28

U.S.C. § 2254(d)(2) when it concluded that the fail-

ure of a novice attorney, during the sentencing phase,

to investigate or present evidence of the defendant’s

severely impaired mental functioning was a strategic

decision even though the record shows otherwise.

26

(Pet. Cert. No. 08-9156). Obviously, Powell’s case

presents no such issue. Powell has presented this

Court with no issue under Wiggins v. Smith, 539 U.S.

510 (2003), about investigation of mitigating evi-

dence. There is no issue in Powell’s case about state-

court fact-finding, much less about fact-finding that is

contradicted by the record.

Wood’s Question 2 asks whether the federal court

erred in according the presumption of correctness

under 28 U.S.C. § 2254(e)(1) to facts which are

supported by the state court record, instead of looking

at the entire state court record to determine whether

those facts reasonably were found under § 2254(d)(2).

(Pet. Cert. No. 08-9156). Wood argues the federai

court must determine the reasonableness of the

fact-finding under § 2254(d)(2) based on the entire

state court record before reaching any presumptions

of correctness under § 2254(e)(1). (/d.). None of these

concerns are at play in Powell’s case.

Powell says that the Fourth Circuit applied

§ 2254(e)(1) in his case with respect to his inettective

assistance and double jeopardy claims. Powell

misstates the record. Neither of Powell’s claims

involved contested facts.

His double jeopardy claim involved no contested

facts or fact-finding: his indictments, bill of

particulars, the record of his two trials, and the

Virginia Supreme Court’s first opinion on direct

appeal, contained the facts which no one contested.

The Fourth Circuit’s opinion affirming the district

27

court’s dismissal of the claim was a straightforward

application of § 2254(d), not § 2254(e). The Fourth

Circuit first stated, in general terms, the steadard for

any federal habeas court reviewing a § 2254 petition.

Powell, 562 F.3d at 664. It simply quoted the

statutory language of § 2254(d), and then recited the

unchallenged holdings of this Court in Williams uv.

Taylor, 529 U.S. 362 (2090), and Schriro v. Landrigan,

550 U.S. 465 (2007), interpreting § 2254(d). 562 F.3d at

664.

At the conclusie> of this recitation, the court set

forth briefly the statutory language of § 2254(e)(1):

“Finally, § 2254(e)(1) provides that a state court’s

factual decisions ‘shall be presumed to be correct’ and

that the petitioner bears the burden of ‘rebutting the

presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1).” Id. The Fourth

Circuit did not, as alleged by Powell, make any

determination about how and when § 2254(e)\(1) would

apply in a case involving state-court fact-finding.

The Fourth Circuit then discussed Powell’s

claims. With respect to his double jeopardy claim, it

recited what Powell’s arguments were, and then set

forth what the law is governing the issue of double

jeopardy. 562 F.3d at 665. It then recited what the

Supreme Court of Virginia had held with respect to

Powell’s claim tuat his two offenses were the same,

reciting from the state court’s published opinion: that

the General Assembly intended that the capital

murder statute define separate offenses; and that

Powell’s second trial was for a separaté offense. /d.

28

The Fourth Circuit then stated its own holding. It

held that the state court decision was not contrary to

clearly established law from this Court or an

unreasonable application of that law. Id. at 665-66.

It did not discuss, or apply, the § 2254(e)(1)

presumption of correctness.

The Fourth Circuit then addressed Powell’s claim

that, even if the offenses were different, he had

been tried twice because the Commonwealth had

presented evidence in his first trial that he wanted to

have sex with Stacie. The Fourth Circuit again

recited what the state court had held: the bill of

particulars restricted liability in the first trial for any

charge of attempting to rape Stacie and thus he was

not tried twice for the same crime. 562 F.3d at 666.

The Fourth Circuit explained the role of a bill of

particulars in Virginia law, and also that, as a matter

of federal law, jeopardy did not attach in Powell’s first

trial until after both the indictment and bill of

particulars had been filed. Jd. at 666 n. 5. It held that

the state court’s decision was not an unreasonable

determination of the facts under § 2254(d)(2) because

(1) the state court held as a matter of state law that

Powell was not tried for attempted rape of Stacie in

his first trial, and (2) evidence that he wanted to have

sex with Stacie does ne! \emonstrate attempted rape.

Id. at 666. The Fouwrsin Circuit did not discuss, or

apply, the § 2254(e}(1) presumption of correctness.

With respect to Powell’s ineffective assistance

claim, the Fourth Circuit first recited the entries on

29

the NCIC form, including the uncontested error. 562

F.3d at 667-68. It then recited the governing standard

in Strickland v. Washington, 446 U.S. 668 (1984). Id.

at 668. It recited the holding of the Virginia Supreme

Court on the claim from its published opinion: Powell

failed to demonstrate the requisite prejudice. Jd. In

fact, the Virginia Supreme Court’s opinion on the

matter was not based on any fact-finding. It accepted

the uncontested fact that there was an inaccurate

entry on the form for capital murder. Powell, 634

S.E.2d at 296. It based its finding of a lack of

prejudice on the likewise uncontested and horrendous

facts of the crime and Powell’s conduct which were

before the jury and which demonstrated beyond

dispute that, if the NCIC form had not been

admitted,.it would have made no difference in the

jury’s verdict. Jd. at 296-99.

Powell’s complaint below and now that the

Virginia Supreme Court failed to address the

“erroneous” other two capital murder entries always

has been groundless. The Virginia Supreme Court

addressed Powell’s complaints about the NCIC form

in two opinions. The first was unpublished and

addressed approximately seven allegations of error

associated with the NCIC form. (JA 527-29). The

second opinion, published, addressed the additional

argument Powell made on rehearing regarding the

inaccurate entry for felonious assault/capital murder.

Powell never identified three erroneous capital

murder entries. As discussed above, one entry was for

his prior conviction which had been reversed on

30

appeal. It was not inaccurate. Another entry was for

the capital murder charge which was listed as

pending. That also was not inaccurate: it referred to

the second trial which was being tried at the time.

Only the third entry was inaccurate because it should

have read “attempted capital murder” instead of

“capital murder.”

In the course of the Virginia Supreme Court’s

published opinion regarding the rehearing, the court

noted that the inaccurate entry actually contained

an arrest date, an offense date, and the location of

the crime. From that information, all of which it is

uncontested had been presented to the jury in

evidence about the crimes, the court made the

reasonable observation “that the erroneous entry on

the NCIC form referred to Powell’s attempted capital

murder conviction concerning Kristie.” Powell, 634

S.E.2d at 297. From that observation, Powell

constructed in the federal courts an argument that

the state court unreasonably found facts in the case.

But the Virginia Supreme Court did not base its

determination of no prejudice on its observation that

the NCIC entry contained information known by the

jury to pertain to the ongoing capital trial; rather, it

based its finding on the uncontested fact that little to

no use was made of the form at trial, the uncontested

fact that the inaccurate entry never was pointed out

by anyone, the uncontested fact that the prosecutor

accurately listed Powell’s crimes orally to the jury,

the uncontested facts of Powell’s crimes proving his

dangerousness, the uncontested facts of Powell’s own

31

predictions that he would continue to kill, and the

legal conclusion that, under Virginia law and the jury

instructions, the NCIC form could not have affected

the jury’s finding of vileness to support the sentence.

Powell, 634 S.E.2d at 297-99.

Powell now says that, because the Fourth Circuit

in one short paragraph answered his argument — that

the Virginia Supreme Court’s observation about the

dates and other information on the inaccurate entry

was speculation — by noting that, under § 2254(e)(1),

the facts are presumed correct unless Powell rebutted

them with clear and convincing evidence, his case

must be stayed for a decision in Wood. He is incorrect.

Wood involves allegations that the federal court

conflated §§ 2254(d) and (e). The Fourth Circuit’s

decision is bereft of any such conflation. It applies

§ 2254(d) to find the state court’s decision reasonable,

and handled Powell’s complaint about the one state

court factual observation — which was not the basis

for the state court’s finding of no prejudice — with a

proper application of § 2254(e)(1) to that factual

observation. It simply cannot be said that the Fourth

Circuit’s decision suffers from any of the conflation, or

fact-finding issues, attendant to the Court’s grant of

certiorari in Wood.

Powell fails to demonstrate any compelling

reason to grant review of his claims which were

disposed of below by application of settled law, not

contested facts. He thus fails to demonstrate under

32

Barefoot v. Estelle, 463 U.S. 880 (1983), any grounds

to stay the scheduled execution of his sentence.

r

vv

CONCLUSION

The petition for a writ of certiorari and appli-

cation for a stay of execution should be denied.

Respectfully submitted,

WILLIAM C. MIms

Attorney General of Virginia

JERRY P. SLONAKER

Senior Assistant Attorney General

KATHERINE B. BURNETT

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-9642

(804) 786-0142 (fax)