Mallory v. Smith

• Decision Date: 30 June 1994
• Docket Number: No. 93-6545,93-6545
• Citation: 27 F.3d 991
• Parties: Thomas W. MALLORY, Jr., Petitioner-Appellant, v. David K. SMITH, Warden; James S. Gilmore, III, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 991

27 F.3d 991

Thomas W. MALLORY, Jr., Petitioner-Appellant, v. David K. SMITH, Warden; James S. Gilmore, III, Attorney

General, Respondents-Appellees.

No. 93-6545.

United States Court of Appeals, Fourth Circuit.

Argued April 14, 1994.

Decided June 30, 1994.

ARGUED: David Isaac Bruck, Columbia, SC, for appellant. Robert Quentin Harris, Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellee. ON BRIEF: James S. Gilmore, III, Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and WILKINSON and HAMILTON, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Justice POWELL and Judge HAMILTON joined.

OPINION

WILKINSON, Circuit Judge:

It has long been clear that federal constitutional claims must be fairly presented to state courts before a federal habeas court may consider them. Here, petitioner contends that references in his Virginia Supreme Court filings to his appellate counsel's activities were sufficient to place that court on notice of an ineffective assistance of appellate counsel claim. The test for exhaustion is not one of simple notice, however. The exhaustion provisions of 28 U.S.C. Sec. 2254(b) & (c) presuppose that claims must be presented to a state court in accordance with state procedure. Because the claim here was not so presented, we affirm the district court's dismissal of the habeas petition.

I.

Thomas Mallory, the habeas corpus petitioner in this case, is currently serving a seventy year sentence in the Commonwealth of Virginia's correctional system. This incarceration is the result of his 1986 trial in Richmond City Circuit Court for an evening break-in and the attempted rape of Janith Parks Libron that followed. Mallory was represented by retained counsel at trial. He unsuccessfully pursued an insanity defense and was found guilty of statutory burglary, sodomy, maiming, and attempted rape. See Va.Code Secs. 18.2-51, 18.2-67 & 18.2-90. No direct appeal ensued from these convictions.

In 1987, Mallory filed a petition for habeas corpus with the Virginia Supreme Court. This petition, which Mallory filled out himself, was executed on the standard, pre-printed Virginia form provided to state prisoners. See Va.Code Sec. 8.01-655. The five page form is divided into sections, each of which contains simple prompts directing the prisoner to provide the basic information necessary to review his conviction. The first section of the form solicits information from the prisoner regarding the course of his original criminal trial. Two pieces of information Mallory supplied in this section are relevant to his current appeal. In response to the question, "Did you appeal the conviction," Mallory replied: "(No) Trial counsel fail to perfect petitioners criminal appeal from his conviction." When directed to "List the name and address of each attorney, if any, who represented you on your appeal," Mallory wrote: "Notice of Appeal was Filed By New Atty. But, Never Finished or? Chris Collins 304 E. Main St. Richmond, VA 23231."

The final section of the Virginia form solicits information from the petitioner regarding the claims he wishes to raise on habeas. In response to the question, "State the grounds which make your detention unlawful, including the facts on which you intend to rely," Mallory identified two "grounds" for relief, each of which contained several subparts.

"Ground # One" alleged a set of "plain errors" on the part of the trial court. Specifically, Mallory argued that the court had (a) "unlawfully" rejected his not guilty by reason of insanity plea, (b) violated his constitutional rights by failing to appoint a psychiatrist "to conduct an appropriate psychological evaluation of petitioner's mental state at the time of the offenses charged to him," and (c) presided over a "miscarriage of justice" by forcing "petitioners family to pay all of the expense of psychiatrist/psychological evaluations" when they could not afford it.

"Ground # Two" contained Mallory's allegations against the Commonwealth's attorney. Mallory alleged that the prosecution had violated his due process rights by (a) withholding "from the court and petitioner at trial" evidence regarding "the psychiatric and psychological mental history of its chief witness," (b) using "perjured" testimony, and (c) allowing the Commonwealth's psychiatrist to "sit in the audience and take notes" of the statements made by the Commonwealth's attorney and witnesses.

Finally, in response to the question, "If any ground set forth ... has not been presented to a court, list each ground and the reason why it was not," Mallory advanced "Ground # Three." He characterized this ground as a "Sixth Amendment ineffective assistance of trial counsel" claim and identified several reasons why his counsel should be considered ineffective. Specifically, Mallory alleged that his counsel was ineffective because she (a) never told him that she practiced real estate, not criminal, law, (b) failed to have the state "bear the expense of his mental exams" or provide him with treatment in a mental facility, (c) knew that "the indictments were constitutionally defective," and (d) knew that "petitioners mental defect and disease were hereditary directly from his biological father who spent 24 years in mental facilities getting help!" None of the three grounds mentioned an ineffective assistance of appellate counsel claim.

Virginia's response addressed each of Mallory's three asserted grounds for relief. Mallory then filed another document which he indicated was a set of "objection[s]" to the state's filing. This document did not request leave to amend the original petition and again referred to the same three "grounds" of relief as asserted in the first petition. However, in the course of discussing grounds two and three, Mallory made several references to a defendant's right to appellate counsel. Under the heading of ground two, Mallory made statements regarding a defendant's rights on appeal and included case citations with those comments. In his discussion of ground three, petitioner stated that trial counsel "was filing a notice of appeal and no more: Violative of his Sixth Amendment right of Appellate Review."

On April 18, 1988, the Virginia Supreme Court issued an order dismissing Mallory's petition. The Court held that the first two claims for relief had been defaulted and found "no merit in the other complaint raised by petitioner." In 1992, Mallory filed a habeas corpus petition in federal district court in Virginia. Mallory asserted nine bases for relief, including the claim that "Petitioner was denied effective assistan[ce] of counsel because of his attorney's failure to note or perfect an appeal in his case."

The district court dismissed the petition. The court first determined that none of the nine claims Mallory raised in his federal petition had been included in his 1987 petition to the Virginia Supreme Court, and therefore that none of the claims were exhausted. Citing Virginia Code Sec. 8.01-654(B)(2), the district court then found that Mallory's unexhausted claims would be procedurally barred were he to now bring them before a Virginia court. ^* Seeing no grounds for a cause and prejudice finding in Mallory's case, the court also held that the federal habeas corpus petition was procedurally barred. Mallory appealed and this court heard argument limited to the question of whether Mallory had properly presented his ineffective assistance of appellate counsel claim to the state courts.

II.

A.

In order for a state prisoner to pursue a habeas corpus petition in federal court, the petitioner must first have exhausted his available state court remedies. 28 U.S.C. Sec. 2254(b) & (c). This rule of exhaustion arises out of the desire to promote comity within our federal system. As the Supreme Court stated:

Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation," federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter."

Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)); see also Whittlesey v. Circuit Court for Baltimore County, 897 F.2d 143, 145 (4th Cir.1990).

The exhaustion requirement can promote comity between the state and federal systems only if state courts actually have a meaningful opportunity to oversee their own operations. It is therefore required that a petitioner seeking federal habeas review make more than a perfunctory jaunt through the state court system, see Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 511-12, 30 L.Ed.2d 438 (1971), and habeas review in the federal courts will be available only after the state courts have been "provided a full and fair opportunity to review earlier state court proceedings," Whittlesey, 897 F.2d at 145; see also Picard, 404 U.S. at 275-76, 92 S.Ct. at 511-12. Where questions concerning exhaustion arise, the petitioner bears the burden of demonstrating that state remedies have, in fact, been exhausted. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.1992); Nadworny v. Fair, 872 F.2d 1093, 1098 (1st Cir.1989).

B.

Here, Mallory has attempted to meet that burden by relying on the several references regarding ineffective assistance of appellate counsel contained in his habeas filings before the Virginia Supreme Court. Mallory points out that his first filing stated that no direct appeal had ever been effectively undertaken by his c...