Smith v. Angelone

• Decision Date: 24 April 1997
• Docket Number: No. 96-7,96-7
• Citation: 111 F.3d 1126
• Parties: Roy Bruce SMITH, Petitioner-Appellant, v. Ronald ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1126

111 F.3d 1126

Roy Bruce SMITH, Petitioner-Appellant, v. Ronald ANGELONE, Director, Virginia Department of

Corrections, Respondent-Appellee.

No. 96-7.

United States Court of Appeals,

Fourth Circuit.

Argued March 3, 1997.

Decided April 24, 1997.

ARGUED: Michele Jill Brace, Virginia Capital Representation Resource Center,

Richmond, VA, for Appellant. John H. McLees, Jr., Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellee. ON BRIEF: Barbara L. Hartung, Mark E. Olive, Virginia Capital Representation Resource Center, Richmond, VA, for Appellant. James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Richmond, VA, for Appellee

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER and Judge LUTTIG joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Roy Bruce Smith was convicted of murdering Manassas Police Sergeant John Conner and sentenced to death. After unsuccessfully appealing his conviction and sentence, and pursuing a collateral attack in state court, he petitioned the district court for a writ of habeas corpus. We affirm the district court's denial of habeas relief.

I.

A Virginia jury convicted Smith of the willful, deliberate, and premeditated killing of Sgt. Conner on July 24, 1988. Concluding that Smith's crime was vile and that Smith presented a future danger, the jury recommended a sentence of death. The trial court entered that sentence on May 26, 1989. The Virginia Supreme Court affirmed the conviction and sentence, Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871 (1990), and the United States Supreme Court denied Smith's petition for a writ of certiorari. Smith v. Virginia, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990). Smith filed a petition for habeas corpus with the state court, which dismissed it on August 19, 1991. After Smith unsuccessfully appealed to the Virginia Supreme Court, the Supreme Court again denied certiorari. Smith v. Virginia, 506 U.S. 848, 113 S.Ct. 142, 121 L.Ed.2d 95 (1992). On October 22, 1993, Smith petitioned for a writ of habeas in federal court pursuant to 28 U.S.C. § 2254. The district court denied the writ on June 10, 1996 and Smith now appeals to this court.

The underlying facts are simple and tragic. On July 24, 1988, after engaging in an ongoing dispute with his wife, Smith drank prodigious amounts of beer and then returned to his Manassas, Virginia home. He strapped on two loaded pistols (a .357 magnum and a .44 magnum) and took a loaded assault rifle with him out to his front stoop. Smith shot into the air with his rifle. When neighbors complained, Smith said "[W]ait 'til I start shooting people." Smith's neighbors recalled that he also said "I hope somebody calls the police because I will shoot the first one that arrives and I hope they shoot me in return."

Smith reentered his house. Not surprisingly, his neighbors telephoned the police and warned them that Smith was armed and potentially dangerous. When Smith noticed that a motion sensitive light had been triggered in his backyard, he went outside again to investigate.

The Supreme Court of Virginia well described the events that followed:

Just before 9:00 p.m., a number of police officers arrived on the scene and parked where their vehicles would not arouse Smith's suspicions. Officer Anderson, in one of the units, observed Smith "sitting on his front porch." Anderson directed the dispatcher to "[h]ave a unit cruise around ... to the rear of the townhouses." The dispatcher relayed the order to Sgt. John Conner, a uniformed officer, who indicated that "he was en route." At this point, Smith "was still on [his] front steps," but when "some person ... started across the street," Smith "immediately got up" and went inside. In a few moments, Sgt. Conner reported on his portable radio: "I've got him in sight he's coming out the back door." Other officers proceeded toward the rear of the house, and one of them, James K. Ryan, heard Sgt. Conner say: "Drop the rifle, drop the rifle now." Ryan then heard "gunfire going off," consisting of "eight to 12 ... real sharp ... cracks," followed by "a short pop and after that ... there was a succession of real sharp cracks again."

Ryan heard a man "groaning or ... moaning" and, when he ran around the end of a fence separating Smith's back yard from his neighbor's, he saw Sgt. Conner lying on the ground in a "bare spot in the alleyway." Ryan observed "a lot of blood around [Conner's] head and two wounds in his back." Ryan left Conner in the care of another officer and went to help subdue Smith, who was struggling with several officers some twenty to twenty-five feet from Conner's location.

Officer Steven Bamford "started up the alleyway" after he heard the shots fired. When he arrived at the rear of Smith's house, he saw Smith "crouching down [or sitting] next to the deck" with "a long barreled weapon laid across his lap." A light above the door to Smith's house "shown back out onto the alleyway and that yard, [and] illuminated that area."

As Bamford "took a step," Smith saw him and tried to "put a magazine in the bottom of the weapon." Bamford attempted to "get back out of the way," but slipped and fell. When he regained his feet, Smith started to get up, and Bamford pointed his shotgun at him and yelled, "[d]rop it" several times. Smith said, "I give up, I give up" and dropped his rifle, which was still equipped with a bayonet. Bamford told Smith to get down on his knees. Smith complied, but when Bamford ordered him to "put his hands on the ground and walk out, to lay flat," Smith refused. A struggle ensued involving several officers, who were unable to "get the rifle from under [Smith]." When one of the officers said, "he's got another gun," Bamford kicked Smith in the face, but he continued to struggle. The struggle ended only after Smith had been placed in leg restraints and handcuffed behind his back.

During the struggle, Smith told the officers to "[g]o ahead and kill [him]." After he was subdued, Smith said that Conner was the "first priority, take care of him, take care of him. He's one of us, he's one of ours." Mortally wounded, Sgt. Conner died several hours later. In the gun battle with Smith, Conner suffered wounds to his right leg, right forearm, back, and head. The wound to the head, which caused "a peach size section of skull [to be] missing," proved fatal. Gunpowder debris was found in the head wound, indicating the wound was caused by a gunshot fired within three feet if inflicted by a handgun or six feet if inflicted by a rifle.

Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871, 874-76 (1990).

II.

Preliminarily, we must decide whether the newly enacted in forma pauperis filing fee provisions of the Prison Litigation Reform Act ("PLRA") apply to habeas proceedings. See Pub.L. No. 104-134, 110 Stat. 1321 (1996) (amending 28 U.S.C. § 1915). ¹ To date, five circuits have considered whether the PLRA's fee provisions apply to habeas petitioners. Our sister circuits have unanimously held the PLRA filing fee provisions inapplicable in habeas proceedings. See Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.1997); United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.1996); Santana v. United States, 98 F.3d 752, 753-56 (3rd Cir.1996); Martin v. United States, 96 F.3d 853, 855-56 (7th Cir.1996); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.1996).

The rationale of these cases is compelling. First, the PLRA contains no provision expressly including habeas petitioners within its reach. The in forma pauperis fee provisions of the PLRA apply when "a prisoner seek[s] to bring a civil action or appeal a judgment in a civil action." 28 U.S.C.A § 1915(a)(2) (West, WESTLAW through Oct. 19, 1996). The PLRA does not define "civil action," and does not explicitly include or exclude habeas litigants from its reach. Although a habeas proceeding is considered a civil action for some purposes, Smith v. Bennett, 365 U.S. 708, 712, 81 S.Ct. 895, 897-98, 6 L.Ed.2d 39 (1961), it is "more accurately regarded as being sui generis." Martin, 96 F.3d at 855. (Posner, C.J.).

As the Third Circuit recently explained:

[H]abeas corpus cases are, in effect, hybrid actions whose nature is not adequately captured by the phrase "civil action"; they are independent civil dispositions of completed criminal proceedings. James S. Liebman, 1 FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 2.1, at 3 (1988). The "civil" label is attached to habeas proceedings in order to distinguish them from "criminal" proceedings, which are intended to punish and require various constitutional guarantees. Boudin v. Thomas, 732 F.2d 1107, 1112 (2d Cir.1984); see also Ex parte Tom Tong, 108 U.S. at 559, 2 S.Ct. at 872, [27 L.Ed. 826 (1883)] (Habeas corpus review is a civil proceeding because "[p]roceedings to enforce civil rights are civil proceedings and proceedings for the punishment of crimes are criminal proceedings."). In light of their hybrid nature, habeas proceedings are often determined to be outside the reach of the phrase "civil action." See, e.g., Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 998 n. 4, 28 L.Ed.2d 251 (1971) (nationwide service of process under 28 U.S.C. § 1391(e) applicable in civil proceedings against United States employees and officers is not available in habeas corpus proceedings); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) (civil discovery rules do not automatically apply to habeas proceedings); Ewing v. Rodgers, 826 F.2d 967 (10th Cir.1987) (a habeas corpus suit is not a "civil action" for purposes of an award of attorneys fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)); Boudin, 732 F.2d 1107 (similar); Dillard v. Blackburn, 780 F.2d 509 (5th Cir.1986) ("[H]abeas cases are not automatically subject to the rules governing civil actions."); see also Advisory...