Mickens v. Taylor, 00-4

• Citation: 240 F.3d 348
• Decision Date: 05 December 2000
• Docket Number: No. 00-4,00-4
• Parties: (4th Cir. 2001) WALTER MICKENS, JR., Petitioner-Appellant, v. JOHN B. TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee. . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 348

240 F.3d 348 (4th Cir. 2001)

WALTER MICKENS, JR., Petitioner-Appellant, v. JOHN B. TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.

No. 00-4.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: December 5, 2000.

Decided: February 16, 2001.

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

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

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] 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 WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Widener wrote the majority opinion, in which Chief Judge Wilkinson and Judges Wilkins, Niemeyer, Luttig, Williams, and Traxler joined. Judge Michael wrote a dissenting opinion, in which Judge Motz and Judge King joined.

OPINION

WIDENER, Circuit Judge:

In 1993 a jury in the Circuit Court of the City of Newport News, Virginia convicted Walter Mickens (Mickens) of the capital murder of Timothy Hall (Hall). Mickens was sentenced to death. Mickens' federal habeas attorney later discovered during the preparation of Mickens' federal habeas corpus petition that Mickens' trial counsel had just previously represented Hall on a charge unrelated to Hall's death. Mickens argues that, because of this prior representation, his attorney labored under a conflict of interest that rendered his representation of Mickens inadequate to satisfy Mickens' Sixth Amendment guarantee of effective counsel. Principally, because Mickens has failed to show that such conflict of interest adversely affected the quality of his representation, we deny Mickens' petition for habeas corpus relief. We hold the incidental claims of Mickens are also without merit.

I.

We describe the facts of this crime as they have been summarized by the Supreme Court of Virginia, Mickens v. Commonwealth 442 S.E.2d 678, 681-83 (Va. 1994). See 28 U.S.C. S 2254(e)(1).

On March 28, 1992, Timothy Hall, age seventeen, lived with his fourteen-year-old friend, Raheem Gordon, and Gordon's father in Gordon's Newport News, Virginia apartment. Hall and Gordon often shared clothes, and Hall was wearing his roommate's Nike brand "Cross Trainer" tennis shoes on that night. Between 7:00 and 8:00 p.m. that evening, Hall drove young Gordon to a party in a nearby apartment building. Hall's stated intention was to return to the party later in the evening, but he never arrived.

Around 8:00 p.m., shortly after Gordon's arrival at the party, two other guests at the party, Vincent West and Bruce Mitchell, left the party and went to a nearby convenience store. After leaving the convenience store, West and Mitchell took their purchases to a public park adjacent to the apartment building in which the party was held. 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.

The following day, Gordon saw Hall's automobile parked near the site of the party in the same place it had been parked the previous night. On March 30, 1992, two days after the party, a man walking along the James River in Newport News saw a body beneath an abandoned construction company building. The body was lying face down on a mattress under a sheet of plywood. The body was nude from the waist down, except for socks, and its legs were spread apart. Pubic hairs were recovered from the buttocks of the body. There were bloody "transfer" stains on the outsides of the victim's thighs, and there was a white liquid substance close to his anus. The victim was identified as Timothy Hall.

An autopsy revealed that Hall had suffered 143 separate "sharp force injuries." The medical examiner concluded that Hall had bled to death and that 25 of the wounds were fatal, including stab wounds to the lungs, skull and brain, liver, neck and jugular vein. The examiner opined that the fatal wounds may not have caused instant death, that Hall could have lived as long as 30 to 40 minutes after infliction of the last wound and that, during this time, he may have been conscious.

On the evening of April 4, 1992, five days after Hall's body was found, Officer D.A. Seals and Detective Dallas Mitchell of the Newport News police responded to a complaint that a black male traveling on a bicycle had assaulted a juvenile. They soon found Mickens, who is black, riding a bicycle in the parking area of the abandoned construction company building where Hall's body had been found. When Officer Seals displayed his badge and approached Mickens, Mickens fled on his bicycle. Mitchell and Seals followed Mickens and took him into custody as he was being detained by other officers. They arrested Mickens on charges involving the assault on the juvenile.

Mickens agreed to talk with the police after being advised of his Miranda rights. 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 asserting,"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 Officer 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 "Cross Trainer" shoes that Hall borrowed from Gordon and had been wearing when Gordon last saw him alive. Jacobs testified that he bought the shoes from Mickens for $5.00 the previous week, the same week Hall's body was found.

At trial, expert witnesses presented by the Commonwealth testified that 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. Tissue attached to the roots of the hairs indicated that the hairs had been forcibly removed, possibly by the rubbing of the assailant's genitals against Hall's buttocks. A sample of human sperm was recovered from the cover of the mattress on which Hall's body was found. DNA analysis (RFLP type) of the sample revealed that Hall could not have produced the sperm. Mickens' DNA pattern was consistent with the DNA pattern in the sperm, however. According to expert testimony presented by the Commonwealth, approximately one in 27,000 Caucasians, one in 6,000 African-Americans, and one in 2,000 Hispanics could have produced sperm consistent with the sample taken from the mattress.

The Commonwealth also presented the testimony of Tyrone Brister, who had been confined in a holding cell at the courthouse with Mickens on March 26, 1993, about a year after Hall's murder. Brister testified that he had asked Mickens why he was in the holding cell 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."

Mickens was convicted of the capital murder of Timothy Hall under a statute making it a capital offense to commit a premeditated murder during or following the commission of attempted forcible sodomy. See Va. Code Ann. S 18.2-31(5). The jury found that the murder of Timothy Hall was outrageously and wantonly vile and sentenced Mickens to death. The Supreme Court of Virginia affirmed. See Mickens v. Commonwealth, 442 S.E.2d 678 (Va. 1994). The United States Supreme Court granted Mickens' 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 new sentencing hearing because "the jury was entitled to be informed of Mickens' parole ineligibility." Mickens v. Commonwealth, 457 S.E.2d 9, 10 (Va. 1995).¹ 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, Mickens v. Commonwealth, 478 S.E.2d 302, 307 (Va. 1996), and the United States Supreme Court denied certiorari, Mickens v. Virginia, 520 U.S. 1269 (1997). The Supreme Court of Virginia denied Mickens' petition for a writ of habeas corpus on December 15, 1997.

On June 25, 1998, Mickens filed a petition in federal district court for a writ of habeas corpus under 28 U.S.C. S 2254 (2000). While investigating Mickens' case, Mickens' court-appointed federal habeas counsel was the first to discover that Mickens' lead trial counsel, Bryan Saunders (Saunders), labored under a potential conflict of interest.² The Federal habeas attorney had gone to the Newport News Juvenile and Domestic Relations Court to review Mickens' juvenile case file. While there, counsel also asked the clerk on duty for any files involving Timothy Hall. Although juvenile case files are kept confidential under Virginia law, see Va. Code Ann.S 16.1-305, the clerk mistakenly produced Hall's file. Hall's juvenile file revealed that, at the time of Hall's death, Saunders was representing him on assault and concealed weapon charges. The assault charge...