George v. Angelone

• Decision Date: 14 November 1996
• Docket Number: RESPONDENT-APPELLEE,PETITIONER-APPELLE,N,No. 96-1,V,RESPONDENT-APPELLANT,PETITIONER-APPELLANT,96-1
• Citation: 100 F.3d 353
• Parties: Page 353 100 F.3d 353 MICHAEL CARL GEORGE,, v. RONALD J. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,MICHAEL CARL GEORGE,RONALD J. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, o. 96-3 United States Court of Appeals, Fourth District Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 353

100 F.3d 353

MICHAEL CARL GEORGE, PETITIONER-APPELLANT v RONALD J. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE. MICHAEL CARL GEORGE, PETITIONER-APPELLEE, V. RONALD J. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLANT.

No. 96-1, No. 96-3

United States Court of Appeals Fourth District

Argued: Sept. 25, 1996

Decided: November 14, 1996.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CA-95-1-3).

ARGUED: Stephen Atherton Northup, MAYS & VALENTINE, Richmond, Virginia, for Appellant. John H. McLees, Jr., Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Gerard J. Roerty, Jr., MAYS & VALENTINE, Richmond, Virginia; Mark Evan Olive, Donald R. Lee, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia, for Appellant. James S. Gilmore, III, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

Before WILKINSON, Chief Judge, and WILKINS and WILLIAMS, Circuit Judges. Judge

Opinion

WILKINS, Circuit Judge:

Michael Carl George appeals a decision of the district court dismissing his petition for a writ of habeas corpus. George v. Angelone, 901 F. Supp. 1070 (E.D. Va. 1995); see 28 U.S.C.A. §§ 2254 (West 1994).)¹ George's petition challenged his Virginia conviction for capital murder and his resulting death sentence. The Commonwealth² cross-appeals the decision of the district court dismissing without prejudice George's claim that he was deprived of his Sixth Amendment right to counsel by the Commonwealth's placing of an informant in his cellblock to obtain information about the murder. We affirm the decision of the district court insofar as the decision denies relief to George, but modify the dismissal of George's Sixth Amendment claim to one with prejudice.

I.

On Saturday, June 16, 1990, Alexander Eugene Sztanko, then 15 years of age, traveled with his parents from their new home in Manassas, Virginia, to their former residence in Woodbridge, Virginia in order to remove some items that the family had left there.³ Sztanko left the Woodbridge residence at approximately 2:00 p.m. for a ride on his motorcycle, proceeding down a power-line easement and into a nearby wooded area. As Sztanko rode through the woods, George drew Sztanko's attention. He stopped the boy and grabbed him from the motorcycle, dragging him farther into the woods. George handcuffed Sztanko to a tree, sodomized the boy, and tortured him by repeatedly applying a stun gun to his genitals. Finally, George fired a nine millimeter pistol into the boy's head, killing him. Sztanko's parents reported hearing the sound of gunfire coming from the woods within an hour of Sztanko's departure. At some point, either before or after the murder, George secreted Sztanko's motorcycle and helmet approximately 20 feet off of the path in the woods and marked a topographical map with an "X" signifying the location of Sztanko's body and an "O" corresponding to the site where the motorcycle was hidden.

The following day, a Prince William County law enforcement officer, who was aware that Sztanko was missing, noticed a blue and silver sport utility vehicle parked near the woods. Having observed the same vehicle at that location at approximately 3:30 p.m. on the previous day, the officer approached the vehicle and, through communications with the Department of Motor Vehicles, learned that it was registered to George. Soon afterward, an individual later identified as George approached the officer on foot. Before reaching the officer, however, George turned and ran along the side of the road and into the woods. After entering the woods, George knelt down for a few seconds and then proceeded farther into the woods, crouching as though he did not wish to be seen. Ultimately, George stood and walked toward the officer again.

The officer confronted George, who identified himself and explained that he was attempting to locate a place to hunt for turkeys. George was dressed completely in camouflage clothing, including a hat and black gloves, despite a temperature in the eighties; he was visibly shaking and sweating profusely. The officer questioned George concerning whether he had been in the area on the previous day. Although George first offered a categorical denial, when the officer challenged him, George admitted that, in fact, he had been there the day before. The officer placed George under arrest for trespassing and called for assistance. George was carrying a knife, the topographical map marking the locations of the motorcycle and Sztanko's body, and keys--including a handcuff key.

After proceeding into the woods to the location where he had observed George kneel down, the officer discovered a pair of tennis shoes that were later identified as Sztanko's. A bloodhound that was brought to the scene led law enforcement officers from the shoes to George's vehicle and then into the woods to Sztanko's body.

The Commonwealth tried George on charges of capital murder based on the murder in the commission of a robbery while armed with a deadly weapon, see Va. Code Ann. §§ 18.2-31(4) (Michie Supp. 1989), and of robbery, abduction with intent to defile, and use of a firearm in the commission of a capital murder. Trial testimony concerning the autopsy performed on Sztanko's body revealed that death had resulted from a single gunshot wound to the head. Expert testimony established that a nine millimeter pistol seized during a search of George's bedroom fired the fatal shot. In addition, abrasions discovered on Sztanko's genitals were consistent with electrical burning, and expert testimony revealed that these injuries were inflicted while the boy was alive and that they would have proven extremely painful. An expert also testified that a stun gun seized from George's vehicle was capable of producing burns consistent with those found on Sztanko's body.

Evidence from laboratory analysis disclosed the presence of seminal fluid on the boy's shirt and thigh, but the origin of this substance could not be identified. However, seminal fluid consistent with George's and inconsistent with Sztanko's was located on swabs from Sztanko's pubic area and on George's underwear. Blood stains on George's pants were consistent with Sztanko's blood, but inconsistent with George's, and fibers located on the boy's shirt were consistent with the material of George's camouflage jacket.

The jury convicted George of all charges and imposed a sentence of death on the capital murder conviction, finding as aggravating predicates both that George would prove a future danger to society and that George's murder of Sztanko was outrageously or wantonly vile. See Va. Code Ann. §§ 19.2-264.2 (Michie 1995).⁴ George's convictions and death sentence were upheld on direct appeal, George v. Commonwealth, 242 Va. 264, 411 S.E.2d 12 (Va. 1991), and the Supreme Court denied his petition for certiorari on April 6, 1992, George v. Virginia, 503 U.S. 973, 118 L. Ed. 2d 308, 112 S. Ct. 1591 (1992).

Thereafter, George filed a petition for a writ of habeas corpus in state court. The state habeas court denied and dismissed the petition, concluding that each of George's claims--with the exception of his claim of ineffective assistance of counsel--was barred either because it was raised on direct appeal (and therefore was not cognizable in state habeas proceedings) or was procedurally defaulted by the failure to properly raise the claim during the trial and on direct appeal. The state habeas court found that George's claim that he was denied effective assistance of counsel was without merit. The Supreme Court of Virginia denied George's petition for review, and again the Supreme Court denied George's petition for a writ of certiorari.

In June 1995, George filed the present petition for habeas corpus relief in the district court. The district court dismissed the petition, holding that some of the claims were procedurally defaulted and that the remainder lacked merit. See George, 901 F. Supp. at 1078-90. George moved pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend the judgment, asking the district court to alter its judgment to dismiss without prejudice his claim that the trial testimony of his fellow inmate was obtained in violation of his Sixth Amendment right to counsel. George maintained that this claim had not been exhausted, so a dismissal to permit the state court to consider it in the first instance was appropriate. The district court obliged George and altered its judgment to make the dismissal of his Sixth Amendment claim without prejudice.

George now appeals the decision of the district court dismissing his petition, and the Commonwealth appeals the decision of the district court dismissing the Sixth Amendment claim without prejudice.

II.

George first maintains that the evidence that he committed the murder in the commission of a robbery while armed with a deadly weapon was constitutionally insufficient.⁵ See Jackson v. Virginia, 443 U.S. 307, 317-18, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (conviction that is unsupported by sufficient evidence violates Due Process Clause of the Fourteenth Amendment). Although not disputing that he murdered Sztanko, George contends that the evidence was insufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt (1) that he robbed Sztanko of any property or (2) that the robbery was a motivating factor for the murder.⁶

To determine whether the evidence is sufficient to support George's conviction for capital murder in the commission of a robbery while armed with a deadly weapon, this court must determine, taking the evidence presented in the light most favorable to the Commonwealth, "whether the record evidence could reasonably support a finding of guilt...