Stitt v. U.S.

• Decision Date: 01 April 2005
• Docket Number: No. CRIM.A. 2:98CR47.,CRIM.A. 2:98CR47.
• Citation: 369 F.Supp.2d 679
• Parties: Richard Thomas STITT, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

Page 679

369 F.Supp.2d 679

Richard Thomas STITT, Petitioner, v. UNITED STATES of America, Respondent.

No. CRIM.A. 2:98CR47.

United States District Court, E.D. Virginia, Norfolk Division.

April 1, 2005.

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Richard Thomas Stitt, Pro se.

MEMORANDUM OPINION & ORDER

JACKSON, District Judge.

Before the Court is the Motion of Richard Thomas Stitt ("Petitioner") to Vacate, Set Aside or Correct a Sentence Previously Imposed pursuant to 28 U.S.C. § 2255. Specifically, Petitioner contends that his sentence is invalid because (1) he received ineffective assistance of counsel, (2) he was denied learned counsel, (3) a thirteenth juror deliberated, (4) the Government withheld evidence, (5) the death penalty is unconstitutional, and (6) the Government's expert has recanted his testimony. For the reasons set forth below, Petitioner's motion to vacate, set aside, or correct his sentence of death is GRANTED.

I. FACTUAL & PROCEDURAL HISTORY

On April 14, 1998, a federal grand jury indicted Petitioner and twelve co-defendants in a thirty-one count indictment. Petitioner was charged with numerous violations of federal laws involving narcotics, firearms, and murders related to drug trafficking.¹ On September 8, 1998, jury trial proceedings began. On October 16, 1998, the trial jury entered a verdict of guilty on fourteen counts, including conspiracy to distribute and possession with intent to distribute cocaine base, pursuant to 21 U.S.C. § 846;² engaging in a continuing criminal enterprise ("CCE"), pursuant to 21 U.S.C. §§ 848(a) & (c); three counts of murder during a CCE, pursuant to 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2; two counts of using and carrying a firearm during and in relation to a crime of violence and two counts of using and carrying a firearm during and in relation to a drug trafficking crime, all pursuant to 18 U.S.C. § 924(c); murder with a firearm during a drug trafficking crime, pursuant to 18 U.S.C. § 924(i) and 18 U.S.C. § 2; possession of a firearm by a felon, pursuant to 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2; and three counts of possession with intent to distribute cocaine base, pursuant to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On October 26, 1998, the penalty phase proceedings began before a jury. The penalty phase jury returned a verdict of Death on counts Three, Five, and Seven on November 6, 1998.

The Court entered its Judgment of Conviction on February 17, 1999, sentencing Petitioner to 780 months of imprisonment and death on each of the three murder convictions. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") affirmed Petitioner's conviction on May 25, 2001. On May 13, 2002, the United States Supreme Court ("Supreme Court") denied certiorari.

Petitioner filed this current motion to Vacate, Set Aside or Correct a Sentence Previously Imposed pursuant to 28 U.S.C. § 2255 on May 13, 2003. On May 23, 2003, the Court ordered the Government to file a response within sixty days. The Court extended the Government's time to respond upon motion from the Government. The Government filed its response on October 8, 2003. On December 5, 2003, Petitioner replied to the Government's response. The Government's response and Petitioner's reply both exceeded the page lengths allowed by the local court rules.

On February 18, 2004, the Court ordered the parties to submit new memoranda in accordance with the page lengths required by the local court rules. Petitioner filed his Amended Reply to the Government's Response on March 18, 2004.³ On April 6, 2004, the Government filed its Amended Response. The Court held two evidentiary hearings regarding issues raised by the parties. During the first hearing on July 15, 2004, Dr. Thomas V. Ryan, Ph.D. ("Dr.Ryan") testified on behalf of Petitioner. At the second hearing on August 2, 2004, the Government presented testimony from Petitioner's trial counsel, Norman Malinski ("Malinski"). Petitioner then had three witnesses testify in rebuttal: Franklin Swartz ("Swartz"), Petitioner's local counsel; Douglas Fredericks ("Fredericks"), counsel for one of the co-defendants in the 1998 trial; and Linda McGrew ("McGrew"), a fact investigator and mitigation specialist for the Richmond Division's Federal Public Defender's Office. The Court sets forth the relevant facts below.

Petitioner was arrested on February 14, 1998. His initial appearance before the Court was on February 17, 1998. Petitioner retained Malinski, who had represented Petitioner on prior occasions, as his counsel. (Tr. 2255 Hr'g 8/2/04 at 57.) At that time, Malinksi was out of the country, but Malinski's partner met with Petitioner and with Swartz, who served as local counsel. (Tr. 2255 Hr'g 8/2/04 at 51, 97-98.) Swartz first appeared for Petitioner on February 26, 1998. On May 13, 1998, Malinski was granted admission pro hac vice to represent Petitioner before this Court.

On June 16, 1998, Malinski mailed a letter to Assistant United States Attorney Fernando Groene ("AUSA Groene") regarding a Department of Justice Conference scheduled on June 18, 1998, where the Government would request to seek imposition of the death penalty if Petitioner was found guilty of the capital offense charges. Malinski informed the Government that he would not be present at the conference because he had no meritorious argument to make on the facts or in mitigation. (Letter from Malinski to Groene of 6/16/98, at 1-2.) Malinski complained that the discovery he had received was late and incomplete. (Id. at 1.) He also asserted that he had no notice that the Government intended to pursue the death penalty until one week prior to his letter. (Id. at 2.) On June 23, 1998, the Government filed its notice of intent to seek the death penalty.

On September 8, 1998, the jury trial began. It is not clear from the record when exactly Malinski began preparation for the sentencing phase. Shortly before August 8, 1998, Malinski requested information regarding the mental health treatment of Petitioner's mother, Valerie Pleas ("Pleas"), from the Commonwealth of Virginia, Eastern State Hospital. (Tr. 2255 Hr'g 8/2/04 at 63 & Pet'r Ex. 26.) Malinski did not discuss any preparations he might or might not be making with any other members of the defense team or the counsel for the other co-defendants. (Decl. Protogyrou ¶ 5; Decl. Swartz ¶ 12.) At Malinski's request, on September 18, 1998, Dr. Thomas Pasquale ("Dr.Pasquale"), a clinical psychologist, began a review of Petitioner's background as Petitioner's expert witness. (Pl. Am. Reply Ex. 40.) Malinski had his first meeting with Pasquale on September 24, 1998. (Id.) At some point during this period, Malinski discussed the case with Mark D. Cunningham, Ph.D ("Dr.Cunningham"), and had planned to hire Dr. Cunningham as an expert, but could not obtain the funds to do so. (Tr. 2255 Hr'g 8/2/04 at 43-47, 78-79.)

When the penalty phase began on October 26, 1998, the Government did not choose to make Petitioner's mental health an issue during its presentation. Malinski introduced the issue as a mitigating factor. As a result, Malinski elicited testimony from Dr. Pasquale regarding Petitioner's future dangerousness and a psychological instrument called the Psychopathy Checklist-Revised ("PCL-R"). In rebuttal, Dr. Ryan testified as an expert witness for the Government on the issue of Petitioner's future dangerousness. (Decl. Ryan ¶ 1.) Dr. Ryan testified "about the defining characteristics of psychopathy and about the utility of the PCL-R as a predictor of future violence in prison." (Id. at ¶ 2.) Based upon Petitioner's score on the PCL-R, Dr. Ryan testified that Petitioner was a psychopath and would be a future danger for violence if he received a life sentence in prison. (Id. at ¶ 2.) Dr. Ryan predicted that Petitioner would not be treatable or subject to rehabilitation, and that Petitioner would continue to be violent after most violent offenders had "burned out." (Id. at ¶ 4.)

Petitioner claims that the penalty phase was rife with errors, falsehoods, and incompetence on the part of Malinski, the Court, and the Government. This matter is now ripe for determination by the Court.

II. STANDARD OF REVIEW AND BURDEN OF PROOF

Title 28 U.S.C. § 2255 provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546 (4th Cir.1958); Vanater v. Boles, 377 F.2d 898, 900 (4th Cir.1967). In deciding a § 2255 motion, the Court need not hold a hearing if "the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Furthermore, if the motion is brought before the judge that presided over the conviction, the judge may rely upon recollections of previous events. Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Carvell v. United States, 173 F.2d 348, 348-49 (1949) (stating it is highly desirable that § 2255 motions "be passed on by the judge who is familiar with the facts and circumstances surrounding the trial, and is consequently not likely to be misled by false allegations as to what occurred.").

If the issues raised by a petitioner have been fully considered by a court on appeal, the petitioner may not raise them again under the guise of a...