134 F.3d 615 (4th Cir. 1998), 96-25, Breard v. Pruett

Docket Nº:96-25.
Citation:134 F.3d 615
Party Name:Angel Francisco BREARD, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center, Respondent-Appellee. The Human Rights Committee of the American Branch of the International Law Association, Amicus Curiae.
Case Date:January 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 615

134 F.3d 615 (4th Cir. 1998)

Angel Francisco BREARD, Petitioner-Appellant,


Samuel V. PRUETT, Warden, Mecklenburg Correctional Center,


The Human Rights Committee of the American Branch of the

International Law Association, Amicus Curiae.

No. 96-25.

United States Court of Appeals, Fourth Circuit

January 20, 1998

Argued Oct. 1, 1997.

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[Copyrighted Material Omitted]

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ARGUED: William Gray Broaddus, McGuire, Woods, Battle & Boothe, L.L.P., Richmond, VA, for Appellant. Donald Richard Curry, Senior Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellee. ON BRIEF: Alexander H. Slaughter, Dorothy C. Young, McGuire, Woods, Battle & Boothe, L.L.P., Richmond, VA; Michele J. Brace, Virginia Capital Representation Resource Center, Richmond, VA, for Appellant. Jeffrey L. Bleich, San Francisco, CA, for Amicus Curiae.

Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge WILLIAMS joined. Senior Judge BUTZNER wrote a concurring opinion.


HAMILTON, Circuit Judge:

Following a jury trial in the Circuit Court for Arlington County, Virginia, Angel Francisco Breard, a citizen of both Argentina and Paraguay, was convicted and sentenced to death for the murder of Ruth Dickie. He now appeals the district court's denial of his petition for writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.


In February 1992, Ruth Dickie resided alone at 4410 North Fourth Road, Apartment 3, in Arlington County, Virginia. At about 10:30 or 10:45 p.m. on February 17, 1992, Ann Isch, who lived in an apartment directly below Dickie's, heard Dickie and a man arguing loudly in the hall. According to Isch, the arguing continued as she heard Dickie and the man enter Dickie's apartment. Almost immediately thereafter, Isch called Joseph King, the maintenance person for the apartment complex. Upon arriving at Dickie's apartment, King knocked on the door and heard a noise that sounded like someone was being dragged across the floor. After receiving no response to his knocking, King called the police.

When the police arrived, they entered Dickie's apartment with a master key that King provided. Upon entering the apartment, the police found Dickie lying on the floor. She was on her back, naked from the waist down, and her legs were spread. She was bleeding and did not appear to be breathing. The police observed body fluid on Dickie's pubic hair and on her inner thigh. Hairs were found clutched in her bloodstained hands and on her left leg. Dickie's underpants had been torn from her body. A telephone receiver located near her head was covered with blood.

An autopsy revealed that Dickie had sustained five stab wounds to the neck; two of which would have caused her death. Foreign hairs found on Dickie's body were determined to be identical in all microscopic characteristics to hair samples taken from Breard. Hairs found clutched in Dickie's hands were Caucasian hairs microscopically similar to Dickie's own head hair and bore evidence that they had been pulled from her head by the roots. Semen found on Dickie's pubic hair matched Breard's enzyme typing in all respects, and his DNA profile matched the DNA profile of the semen found on Dickie's body.

Breard was indicted on charges of attempted rape and capital murder. Following a jury trial, he was convicted of both charges. The jury fixed Breard's punishment for the attempted rape at ten years' imprisonment and a $100,000 fine. In the bifurcated proceeding, the jury heard evidence in aggravation and mitigation of the capital murder charge. Based upon findings of Breard's future dangerousness and the vileness of the crime, the jury fixed Breard's sentence at death. The trial court sentenced Breard in accordance with the jury's verdicts.

Breard appealed his convictions and sentences to the Supreme Court of Virginia, and that court affirmed. See Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994).

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On October 31, 1994, the United States Supreme Court denied Breard's petition for a writ of certiorari. See Breard v. Virginia, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994).

On May 1, 1995, Breard sought state collateral relief in the Circuit Court for Arlington County by filing a petition for writ of habeas corpus. On June 29, 1995, the circuit court dismissed the petition. On January 17, 1996, the Supreme Court of Virginia refused Breard's petition for appeal.

Breard then sought federal collateral relief in the United States District Court for the Eastern District of Virginia by filing a petition for writ of habeas corpus on August 30, 1996. On November 27, 1996, the district court denied relief. See Breard v. Netherland, 949 F.Supp. 1255 (E.D.Va.1996). On December 24, 1996, Breard filed a timely notice of appeal. On April 7, 1997, the district court granted Breard's application for a certificate of appealability as to all issues raised by Breard in his application. See 28 U.S.C. § 2253; Fed. R.App. P. 22.



The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), amended, among other things, 28 U.S.C. § 2244 and §§ 2253-2255, which are parts of the Chapter 153 provisions that govern all habeas proceedings in federal courts. The AEDPA, which became effective on April 24, 1996, also created a new Chapter 154, applicable to habeas proceedings against a state in capital cases. The new Chapter 154 applies, however, only if a state "opts in" by establishing certain mechanisms for the appointment and compensation of competent counsel. In Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that § 107(c)...

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