133 F.3d 275 (4th Cir. 1997), 97-8, In re Pruett

Docket Nº:97-8.
Citation:133 F.3d 275
Party Name:In re: Samuel V. PRUETT, Warden, Mecklenburg Correctional Center; Attorney General of the Commonwealth of Virginia; Virginia State Police; The Commonwealth's Attorney for the City of Hampton, Petitioners.
Case Date:December 31, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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133 F.3d 275 (4th Cir. 1997)

In re: Samuel V. PRUETT, Warden, Mecklenburg Correctional

Center; Attorney General of the Commonwealth of Virginia;

Virginia State Police; The Commonwealth's Attorney for the

City of Hampton, Petitioners.

No. 97-8.

United States Court of Appeals, Fourth Circuit

December 31, 1997

Argued June 4, 1997.

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COUNSEL: Katherine P. Baldwin, Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Petitioners. Barbara Lynn Hartung, Richmond, VA, for Respondent. ON PLEADINGS: Catherine M. Foti, Robert J. Anello, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City, for Respondent.

Before: HALL, LUTTIG, and MOTZ, Circuit Judges.

Writ granted by published opinion. Judge HALL wrote the opinion, in which Judge LUTTIG and Judge MOTZ concurred.


K.K. HALL, Circuit Judge:

In this petition for a writ of mandamus and prohibition, the Commonwealth of Virginia seeks to have this court set aside or otherwise nullify the federal district court's discovery order in Thomas Lee Royal's collateral attack on a state court conviction. We agree that the district court exceeded its authority by issuing the order ex parte, and, accordingly, we vacate the discovery order and remand the case for further proceedings.


Royal was convicted of killing a policeman in Virginia and was sentenced to death in state court. On November 25, 1996, the day before his scheduled execution, he filed pro

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se motions in the federal district court for appointment of counsel and for a stay of execution. Both motions were granted.

Appointed counsel, without first filing a petition under 28 U.S.C. § 2254, filed an ex parte discovery motion under seal with the district court. This motion sought information concerning Virginia State Trooper Vernon Roy Richards and the confessions of Royal's codefendants. Subsequent to Royal's conviction, it came to light that Trooper Richards had engaged in a pattern of planting evidence, including the planting of a cartridge near the scene of the murder to which Royal had confessed (Richards is currently serving a federal sentence for planting bombs). The "discovery" of this cartridge was then used in the interrogation of Royal and the other participants in the crime, and it may have led Royal to change his story about which weapon he had possessed at the time of the murder.

On April 2, 1997, without requiring notice to the State, the district court, after reviewing "the accompanying memorandum of law and Affidavit of [counsel], and for good cause shown pursuant to Federal Habeas Corpus Rule 6(a)," granted the motion and ordered the State Police to immediately turn over to Royal's counsel the personnel files of an officer involved in the investigation of the crime for which Royal stands convicted. The court also ordered the State to turn over taped statements of Royal's co-defendants. Instead of complying, the State filed a "Petition for a Writ of Mandamus and Prohibition" in this court to nullify the discovery order. We stayed execution of the discovery orders pending resolution of the State's petition.


The State contends that the discovery orders suffer from two fatal defects: the discovery motion was filed prepetition, 1 and the orders were granted ex parte. Royal responds that the court had the authority to act as it did, and, even if it erred in some respect, that mandamus is not the proper remedy. While the petition was pending before us, Royal moved to dismiss it as moot. On May 29, 1997, we denied the motion to dismiss, and we now explain the basis for our denial.

After we stayed the discovery order and scheduled this matter for oral argument on June 4, 1997, Royal attempted to obtain another extension 2 from the district court in which to file his § 2254 petition so that he could consider any information obtained through the discovery order should that order be left undisturbed by us. The district court refused to extend the time for filing the petition beyond April 28, 1997, and Royal filed his § 2254 petition on that date without the benefit of discovery. He then moved for the dismissal of the State's mandamus petition as moot because he "no longer require[d] prepetition discovery." 3 This motion was resisted by the State on the ground that prepetition and ex parte discovery orders will continue to be entered in other habeas actions, yet will effectively elude appellate review.

The focus of the parties' mootness argument was on the effect of the filing of the § 2254 petition, but the filing of the petition clearly does not of itself render the ex parte issue moot. The April 2 discovery order is still in effect. However, even if mootness resulted from Royal's attempt to have the

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disputed order vacated, the issue still falls within an exception to the mootness doctrine.

We only decide "Cases" and "Controversies." U.S. Const. art. III, § 2. "[A]n appeal should be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant 'any effectual relief whatever' in favor of the appellant." Calderon v. Moore, 518 U.S. 149, ----, 116 S.Ct. 2066, 2067, 135 L.Ed.2d 453 (1996) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895)). However, there is an exception to the mootness doctrine that permits review of an issue "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The ex parte controversy presents such an issue.

Although Royal asserts that he "no longer has any present interest in maintaining the confidentiality of any motions, supporting papers, or orders of the District Court that were filed ex parte ...," 4 (emphasis added), this is hardly a guarantee that he will not seek ex parte discovery again as he develops his case, and nothing in the record suggests that the district court would not again enter such an order. Moreover, the State has assured us that ex parte orders have been entered in other cases by the same trial court, 5 and we have not been given any reason to question this assertion. There is, then, "a reasonable expectation that [the State] will be subjected to the same action again." Kennedy v. Block, 784 F.2d 1220, 1223 (4th Cir.1986).

This dispute is also "too short to be fully litigated prior to its cessation or expiration," id., in the sense that the ex parte issue is unlikely to persevere very long in a reviewable posture. Controversies over the allowance of discovery are by their very nature short-lived because reversal on appeal cannot undo the disclosures. The only practicable first step to meaningful review is to refuse compliance, as the State has done here. Royal's motion to dismiss the discovery order may have made the issue moot, but, as we noted above, Royal has not expressly disavowed future attempts to seek ex parte discovery. The issue will continue to arise, and, in light of its relatively ephemeral nature, we believe we should keep it in our grasp.

The type of issue presented is another reason to address it now. In the past, we have applied the "capable of repetition" exception to the mootness doctrine to matters involving what might be termed "judicial administration." See In re South Carolina Press Ass'n, 946 F.2d 1037, 1039 (4th Cir.1991) (holding that mandamus petition, to review trial court's exclusion of press and public from voir dire of potential jurors, was not rendered moot by completion of trial); see also In re Reporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C.Cir.1985) (intervenors' attempt to gain access to discovery documents that were sealed by the district court prior to trial was not mooted by unsealing of documents after trial); Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986) (intervenor's appeal of protective order denying access to discovery information did not become moot when protective order was vacated after selection of jury). We believe that the discovery order in this appeal falls into the same general category. 6


The ex parte aspect of the discovery orders appears to raise an issue of first impression. Rule 6(a) of the Rules Governing § 2254 Cases provides that "a party shall be entitled to invoke the processes of discovery available under the Federal Rules of

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Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Even if we assume that this rule applies in situations in which a petition has not yet been filed, 7 Royal is unable to cite any specific authority in the rules--civil, criminal, habeas, or local--or statutes for permitting ex parte discovery. 8 Instead, his argument is that the specific statutory authority for the court to proceed ex parte in certain enumerated areas should be extended to discovery.

In his January 27,...

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