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.

Page 276

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.

OPINION

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.

I

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.

II

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...

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