208 F.3d 172 (4th Cir. 2000), 99-7, Burket v. Angelone

Docket Nº:99-7 (CA-97-235-2).
Citation:208 F.3d 172
Party Name:RUSSEL WILLIAM BURKET, Petitioner-Appellant, v. RONALD ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.
Case Date:March 27, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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208 F.3d 172 (4th Cir. 2000)

RUSSEL WILLIAM BURKET, Petitioner-Appellant,

v.

RONALD ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.

No. 99-7 (CA-97-235-2).

United States Court of Appeals, Fourth Circuit

March 27, 2000

Argued: November 30, 1999.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

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COUNSEL ARGUED: Mark Evan Olive, THE LAW OFFICES OF MARK E. OLIVE, P.A., Tallahassee, Florida, for Appellant. Robert Quentin Harris, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Timothy P. Schardl, THE LAW OFFICES OF MARK E. OLIVE, P.A., Tallahassee, Florida; Andrew A. Protogyrou, KNIGHT, DUDLEY, CLARK & DOLPH, Norfolk, Virginia, for Appellant. Mark L. Earley, Attorney General of Virginia, Robert H. Anderson, III, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Luttig and Judge Motz joined.

OPINION

HAMILTON, Senior Circuit Judge:

On January 19, 1994, in the Circuit Court for Virginia Beach, Virginia, Russel William Burket (Burket) pled guilty to, inter alia, capital murder, see Va. Code Ann. § 18.2-31. For that crime, the state trial court sentenced him to death. After exhausting his state remedies, Burket filed a petition for writ of habeas corpus, see 28 U.S.C. § 2254,1 in the United States District Court for the Eastern District of Virginia, which the district court dismissed.2 Burket appeals. Because Burket has failed to make a substantial showing of the denial of a constitutional right, see id. § 2253(c)(2), we deny his application for a certificate of appeal-ability and dismiss the appeal.

I

A

As found by the Virginia Supreme Court on direct appeal, the facts of this case are as follows:

On January 14, 1993, about 2:00 p.m., Terry Cain placed a telephone call to

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Barbara Pullman, who is Katherine Tafelski's mother. Cain informed Pullman that Cain's three-year old daughter, Chelsea Brothers, had spent the night with Katherine Tafelski and her children. Mrs. Tafelski had agreed to take Chelsea to school on the morning of January 14, but had failed to do so. Pullman placed a telephone call to her daughter's home, but she received an answering machine recording, "which was not normal." Pullman decided to go to her daughter's residence to ascertain why she had not taken Chelsea to school.

When Pullman arrived at her daughter's home, she was unable to gain entry because the front door was locked. Joan Poillon, who lived in the neighborhood, began to help Pullman gain access to the residence. As they tried to enter the front door, they heard Chelsea crying. Chelsea was inside the home, but was unable to open the front door because of her age and diminutive stature.

Pullman and Poillon went to the rear of the house and discovered that the back door was open. When they entered the house, Chelsea ran to them crying. They observed that Chelsea had suffered a facial injury.

Pullman and Poillon began to search the house in an attempt to locate Katherine Tafelski; her daughter, Ashley Tafelski, age five; and her son, Andrew J. Tafelski, Jr., age three. Pullman and Poillon found Katherine Tafelski's partially nude body, covered in blood, lying on her bed. It was apparent that she had been struck numerous times in the head and sexually assaulted with some type of object. The white sweatshirt that she had been wearing was ripped in several places and soaked with blood.

Pullman ran to the kitchen area of the residence and placed a telephone call to the police. Poillon continued to search for the children. Poillon entered Ashley Tafelski's bedroom, and discovered Ashley's body lying in her bed with her hand hanging over the side of the bed and a large pool of blood beneath her. It appeared that Ashley had been struck several times in the head with a hard object. A small piece of bone fragment, "coupled with hair and blood," was near the foot of Ashley's bed.

Poillon found Andrew Tafelski, Jr., in his bedroom, lying in the top bunk bed. He was suffering from numerous head and facial injuries, but he was still conscious.

After the police arrived at the residence, Detective Shawn Hoffman and another officer conducted a search of the area surrounding the residence. A trained dog located a track that extended from the rear utility room of the house to a wooded area behind the home. An officer found an old double-barrel shotgun in the woods. The shotgun had been removed from the Tafelski's [sic] residence.

The intruder's apparent point of entry was a door located in the back of the Tafelskis' residence. The door contained numerous fresh tool marks. These tool marks were of a similar pattern and shape as marks found on the bodies of Katherine and Ashley Tafelski.

The bodies of Katherine and Ashley Tafelski were taken to the Norfolk Crime Lab for autopsies and forensic examination. Dr. Leah Linda Elizabeth Bush, assistant chief medical examiner, performed the autopsies.

The autopsy of Katherine Tafelski's body revealed the following. Her head had been struck six or seven times with an object of significant weight. The skull was completely crushed, and it appeared that massive force had been applied.

She had marks on her right upper inner thigh that, upon observation, appeared to resemble a belt buckle. She had suffered vaginal and anal penetration by an inanimate object. The vaginal penetration was made with an object ranging in diameter from one-half to two

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inches and penetrating to a length of twenty-one inches. The object, later identified as an automotive tool3 about thirty inches long and containing a "screwdriver tip," perforated the victim's posterior vaginal wall, the left iliac artery, the left iliopsoas muscle, the small bowel mesentery, the omentum, the stomach, the left posterior hemidiaphragm, and the left periaortic soft tissue with intimal and medial aortic transection. A gray substance with a greasy consistency was found at the entrance of the victim's anal cavity.

Dr. Bush found a small piece of "bark/wood" while examining the victim's internal organs. Four or five abrasions, two of which contained small lacerations, were present on the victim's right side. Dr. Bush noted that either the blunt force trauma to the victim's head or the injury to her vaginal area and its related perforations would have been sufficient to cause death.

The autopsy of Ashley Tafelski's body revealed the following. Ashley suffered massive head injuries that were inflicted by the same object that was used to kill her mother. She had four or five lacerations to her head. Two of the head wounds evidenced a "knurled" pattern on the skin. One of the wounds to Ashley's head did not break the skin, but crushed the skull underneath. Two of the wounds to Ashley's head evidenced markings consistent with the tool marks found at the point of entry at the residence. Dr. Bush determined that the cause of Ashley's death was blunt force trauma to her head.

Andrew Tafelski, Jr., suffered a double break in his jaw, at the joint and at the tip. He also had a wound above one of his eyes. Chelsea Brothers suffered bruises to her head, face, and body.

A blue washcloth was found in the room near Katherine Tafelski's body. Lynn S. Baird, a forensic scientist, examined the washcloth and determined that spermatozoa were present. Robert W. Scanlon, a forensic scientist, determined, by using DNA tests, that the spermatozoa found on the washcloth stain were consistent with Russel Burket's DNA profile. Approximately 7.8 percent of the Caucasian population possess the same HLA DQa type as found in the examined stain.

Chelsea Brothers told Officer M.C. Stewart that"the bad man had a gun and a dog." Chelsea stated, while being transported to the ambulance for treatment of her injuries, that she was afraid of "the dog, the big dog. There is a dog out there." Chelsea added that the dog was "out there on the house, on the roof." Burket and his parents, who live next door to the Tafelski residence, had several large dogs in their backyard that frequently peered over a privacy fence surrounding their property. Numerous police personnel observed these dogs sitting on the roofs of their pens.

As several officers began to search the Tafelski residence for physical evidence, they noticed that a man, later identified as Burket, looked at them for several minutes before entering his residence. This occurred several times. On one occasion, Burket began to walk toward two of the police officers, and he was advised to return to his home.

Later that day, Detective K.P. Rexroad spoke with Burket in his home. During this discussion, Burket said that he was frequently in Mrs. Tafelski's home to perform odd jobs for the family whenever her husband was out of town. Burket stated that he was outside of his residence around midnight on January 13, 1993, but that he had not seen anything unusual.

Burket v. Commonwealth, 450 S.E.2d 124, 126-28 (Va. 1994).

B

On July 6, 1993, a City of Virginia Beach grand jury returned two indictments

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against Burket. The first indictment charged Burket with statutory burglary, see Va. Code Ann. § 18.2-90; capital murder, that is, the willful, deliberate, and premeditated killing of Katherine and Ashley...

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