227 F.3d 203 (4th Cir. 2000), 00-4, Mickens v. Taylor

Docket Nº:00-4.
Citation:227 F.3d 203
Party Name:WALTER MICKENS, JR., PETITIONER-APPELLANT, v. JOHN B. TAYLOR, WARDEN, SUSSEX I STATE PRISON, RESPONDENT-APPELLEE.
Case Date:September 14, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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227 F.3d 203 (4th Cir. 2000)

WALTER MICKENS, JR., PETITIONER-APPELLANT,

v.

JOHN B. TAYLOR, WARDEN, SUSSEX I STATE PRISON, RESPONDENT-APPELLEE.

No. 00-4.

United States Court of Appeals, Fourth Circuit

September 14, 2000

Argued: June 6, 2000.

Rehearing en banc granted by order filed 10/23/00.

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

Robert E. Payne, District Judge. (CA-98-102-3)

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[Copyrighted Material Omitted]

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Counsel Argued: Robert James Wagner, Wagner & Wagner, Richmond, Virginia, for Appellant. Robert Quentin Harris, Assistant Attorney General, Office OF The Attorney General, Richmond, Virginia, for Appellee. ON Brief: Robert E. Lee, Jr., VIRGINIA Capital Representation Resource Center, Richmond, Virginia, for Appellant. Mark L. Earley, Attorney General of Virginia, Office OF The Attorney General, Richmond, Virginia, for Appellee.

Before Widener, Michael, and Motz, Circuit Judges.

Reversed by published opinion. Judge Michael wrote the majority opinion, in which Judge Motz joined. Judge Widener wrote a dissenting opinion.

OPINION

Michael, Circuit Judge.

In 1993 a jury in Virginia state court convicted Walter Mickens of capital murder, and he was sentenced to death. Mickens' federal habeas counsel discovered something by chance that Mickens did not know: Mickens' lead counsel in his murder case was representing the murder victim on criminal charges at the time of the victim's death. The state judge who appointed counsel for Mickens knew or should have known that the back-to-back representation presented an apparent conflict, but the judge failed to inquire. This looks bad, but there is more. Mickens' lead counsel had an actual conflict of interest as a result of his representation of the murder victim. These circumstances, taken

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together, require that Mickens be afforded a new trial under the authority of Wood v. Georgia, 450 U.S. 261 (1981). We therefore reverse the district court's judgment denying Mickens a writ of habeas corpus. The district court will award the writ on remand unless the Commonwealth of Virginia gives Mickens a new trial.

I.

We take the facts about the crime from the Supreme Court of Virginia, Mickens v. Commonwealth, 442 S.E.2d 678 (Va. 1994). See 28 U.S.C. § 2254(e)(1). On March 28, 1992, Timothy Hall, age seventeen, was living with his fourteen-year-old friend, Raheem Gordon, and Gordon's father in an apartment at 28th and Washington Streets in Newport News, Virginia. Between 7:00 and 8:00 p.m. that evening, Hall gave young Gordon a ride to the nearby Towers apartment building, where Gordon attended a party. Hall had intended to go to the same party later, but he never appeared. One item about Hall's dress that evening becomes important later: he was wearing a pair of Gordon's Nike brand "Cross Trainer" athletic shoes. At about 8:00 p.m. Vincent West and Bruce Mitchell, who were attending the Towers party, left and went to a nearby convenience store. After buying a few items and leaving the store, West and Mitchell went to a park next to the Towers building. While sitting in the park, West and Mitchell saw a man with a bicycle hiding in some bushes and looking at them. The man was later identified as the petitioner, Walter Mickens. Less than forty hours later, at about 12:30 p.m. on March 30, 1992, Chris Basford was walking along the James River in Newport News when he saw a body lying face down on a mattress beneath an abandoned construction company building. The body's legs were spread apart, and it was nude from the waist down, except for socks. The body was identified as that of Timothy Hall. Pubic hairs were recovered from the buttocks of Hall's body. There were bloody "transfer" stains on the outsides of his thighs, and there was a white liquid substance close to his anus. The autopsy by the medical examiner revealed that Hall had been subjected to 143 separate "sharp force injuries." The examiner concluded that Hall had bled to death and that twenty-five of the wounds were fatal. The examiner opined that the fatal wounds may not have caused instant death and that Hall could have lived as long as thirty to forty minutes after infliction of the last wound.

On the evening of April 4, 1992 (five days after Hall's body was found), the Newport News police, Officer D. A. Seals and Detective Dallas Mitchell, responded to a complaint that an African-American male, who was riding a bicycle, had assaulted a juvenile. Seals and Mitchell soon found Mickens riding a bicycle in the parking area at the abandoned construction company building. When Seals displayed his badge and approached Mickens, Mickens fled on his bicycle. He did not get far. Seals and Mitchell tracked Mickens down as he was being detained by other officers. Mickens was arrested at 7:00 p.m. on the charges involving the juvenile. After Mickens was given his Miranda warnings, he agreed to talk. Without telling Mickens how Hall had been murdered, Detective Mitchell told Mickens that he knew Mickens had killed Hall. Mickens denied any involvement in Hall's murder, but said, "You didn't find any knife on me, did you?" The following morning, the police obtained warrants charging Mickens with the murder and attempted sodomy of Hall. When Detective Seals handed Mickens the warrants, Mickens said,"I accept the warrants, I accept the charges." Seals asked Mickens what he meant by that, and Mickens responded, "Mother f___r, if I told you I accept the warrants that means I'm guilty, don't it?"

On April 7, 1992, the police found Michael Jacobs wearing the Nike brand

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"Cross Trainer" shoes that Hall had been wearing when Raheem Gordon had last seen Hall alive. Jacobs testified that he had bought the shoes from Mickens for $5.00 the previous week (the week Hall's body was found).

The Commonwealth offered the following evidence through expert witnesses. The pubic hairs removed from Hall's buttocks were from an African-American and were alike in "all identifiable microscopic characteristics" to the pubic hair sample taken from Mickens, who is African-American. Tissue was attached at the roots of the hairs, indicating that the hairs had been forcibly removed, possibly by the rubbing of genitals against Hall's buttocks. The stain on the mattress cover was of human sperm. DNA analysis (RFLP type) revealed that Hall could not have produced the sperm. Mickens' DNA pattern matched the DNA pattern in the sperm, however. The approximate percentages of the population that could have deposited the sperm were one in 27,000 Caucasians, one in 6,000 African-Americans, and one in 2,000 Hispanics.

On March 26, 1993, about a year after Hall's murder, Mickens was in a holding cell at the courthouse with a man named Tyrone Brister. Brister testified about his encounter with Mickens. Brister asked Mickens why he was there, and Mickens answered,"They said I stabbed somebody 140 something times in the head." Mickens then lowered his voice and said, "which I did." Mickens also told Brister that "they" said he also sodomized the victim and stole his sneakers. Again, Mickens lowered his voice and said, "which I did."

The jury found Mickens guilty of the capital murder of Hall, specifically, murder during the commission of, or following, an attempted forcible sodomy. Mickens was sentenced to death, and the Supreme Court of Virginia affirmed. See Mickens v. Commonwealth, 442 S.E.2d 678 (Va. 1994). The United States Supreme Court granted his first petition for certiorari and remanded the case "for further consideration in light of Simmons v. South Carolina , 512 U.S. 154 (1994)." Mickens v. Virginia, 513 U.S. 922 (1994). On remand the Supreme Court of Virginia concluded that Simmons mandated a resentencing because "the jury was entitled to be informed of Mickens' parole ineligibility." Mickens v. Commonwealth, 457 S.E.2d 9, 10 (Va. 1995). On February 5-8, 1996, the trial court held a new sentencing hearing. The jury again fixed Mickens' sentence at death. Mickens appealed, the Supreme Court of Virginia affirmed the sentence, see Mickens v. Commonwealth, 478 S.E.2d 302, 307 (Va. 1996), and the Supreme Court denied certiorari, see Mickens v. Virginia, 520 U.S. 1269 (1997). Mickens then pursued state post-conviction relief. The Supreme Court of Virginia summarily denied his petition for a writ of habeas corpus on December 15, 1997. Mickens then sought federal habeas corpus relief with the assistance of counsel appointed by the district court.

It was Mickens' federal habeas counsel who first discovered that Mickens' lead trial counsel, Bryan Saunders, labored under a conflict of interest. (The facts about the conflict issue are taken from the findings of the district court in Mickens' federal habeas proceeding.) While investigating Mickens' case, federal habeas counsel went to the Newport News Juvenile and Domestic Relations Court (JDR Court) to review Mickens' JDR file. While there, counsel also asked the clerk on duty for any files involving Timothy Hall. Although juvenile case files are confidential and are not to be disclosed publicly without a court order, see Va. Code Ann. § 16.1-305, the clerk slipped up and produced Hall's file. This file revealed that at the time of Hall's death, Saunders was representing him on assault and concealed weapon charges. The first of these charges originated on February 21, 1992, when Hall's mother swore out a warrant

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for assault and battery against him. She said that her son had grabbed her by the arms and shoved her to the ground. Hall was booked again around March 13, 1992, when the Newport News police charged him with possession of a concealed weapon (a serrated bread knife wrapped in paper). Hall appeared before the JDR Court on March 20, 1992, when Judge Paul Criver, Jr. appointed Saunders to represent Hall on the two charges. A hearing in the matter...

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