Stockton v. Murray

• Decision Date: 05 December 1994
• Docket Number: No. 94-4000,94-4000
• Parties: Dennis Waldon STOCKTON, Petitioner-Appellant, v. Edward MURRAY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 920

41 F.3d 920

Dennis Waldon STOCKTON, Petitioner-Appellant, v. Edward MURRAY, Respondent-Appellee.

No. 94-4000.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 28, 1994.

Decided Dec. 5, 1994.

ARGUED: Anthony Frazier King, Howrey & Simon, Washington, DC, for appellant. John H. McLees, Jr., Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, for appellee. ON BRIEF: Steven D. Rosenfield, Charlottesville, VA, for appellant. James S. Gilmore, III, Atty. Gen. of Virginia, Virginia B. Thiesen, Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, for appellee.

Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge ERVIN and WIDENER joined.

OPINION

WILKINSON, Circuit Judge:

Appellant Dennis Stockton seeks relief from his capital murder conviction, claiming that the prosecution withheld exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and knowingly elicited perjured testimony during his 1983 trial. Because we find that Stockton's claims are procedurally barred, and in any event are meritless, we affirm the district court's dismissal of Stockton's petition.

I.

A full description of the facts underlying Stockton's trial and conviction can be found in Stockton v. Commonwealth of Virginia, 852 F.2d 740 (4th Cir.1988), cert. denied sub nom. Virginia v. Stockton, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), and in Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371, 376-77, cert. denied sub nom. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). We recount here only those facts relevant to the instant appeal. Briefly, eighteen-year-old Kenneth Arnder was last seen alive on July 20, 1978, in Mount Airy, North Carolina, when appellant Dennis Stockton picked up Arnder to drive him to Patrick County, Virginia. Arnder's body was discovered five days later in a remote area of Surry County, North Carolina. Arnder had been shot in the head and both of his hands had been severed above the wrists.

On June 25, 1982, Stockton was arrested and charged with the murder for hire of Arnder under Va.Code Ann. Sec. 18.2-31(b). Stockton pleaded not guilty and was tried before a jury in the Circuit Court of Patrick County in March 1983. According to the prosecution's theory at trial, Tommy McBride hired Stockton to kill Arnder because Arnder owed McBride a sum of money from a drug transaction.

Only one witness testified at trial about the meeting at which McBride hired Stockton to kill Arnder. That witness, Randy Bowman, was imprisoned in North Carolina at the time of Stockton's trial. When asked at trial whether he had received any promises in return for his testimony, Bowman replied that he had not and insisted that he was testifying because it was "the right thing to do." Bowman did admit, however, that he "hoped" his cooperation would mitigate his sentence in some respect.

Another prosecution witness, Robert Gates, testified that Stockton had killed Ronnie Tate in 1979 because Tate had been "running [his] mouth about Kenny Arnder." The Supreme Court of Virginia upheld admission of Gates' testimony based on its conclusion that "the two offenses were interrelated, and Gates' testimony showed both Stockton's guilty knowledge of Arnder's murder and his desire to conceal his guilt." Stockton v. Commonwealth, 314 S.E.2d at 383. We likewise determined that admission of the testimony was not unfairly prejudicial, given the apparent link between the Tate and Arnder killings. Stockton v. Commonwealth, 852 F.2d at 748. The prosecution did not elicit testimony at trial about any motive for the Tate killing other than its relation to Kenny Arnder.

After a two-day trial, the jury found Stockton guilty of murder for hire. At the sentencing phase, the same jury recommended that Stockton be sentenced to death. The trial court imposed that sentence on June 7, 1983. The Supreme Court of Virginia affirmed the conviction and sentence. Stockton v. Commonwealth, 314 S.E.2d at 389. The United States Supreme Court denied certiorari. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Thereafter Stockton began a lengthy quest for post-conviction relief.

This quest took the form of four habeas corpus petitions in state court and two such petitions in federal court. In the eleven years since Stockton's conviction, he has presented his claims for post-conviction relief to state and federal courts on numerous occasions. Those courts have provided a thorough and careful review of Stockton's conviction and sentence. In fact, this court previously affirmed a district court judgment vacating Stockton's death sentence and remanding for resentencing, Stockton v. Commonwealth, 852 F.2d at 741, where a second jury fixed Stockton's penalty at death based on the aggravating factors of vileness and future dangerousness. Stockton v. Commonwealth, 241 Va. 192, 402 S.E.2d 196, 207-09 (discussing aggravating factors), cert. denied, 112 S.Ct. 280 (1991). Stockton's remaining petitions, however, have all been dismissed. The state court's dismissal of his fourth state habeas petition is of particular interest to us in this case.

Stockton's fourth state court petition was premised upon facts revealed by a 1990 letter from the trial prosecutor. In 1982, during the course of preparation for trial, Stockton had filed a pre-trial motion asking the Commonwealth, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for "any and all information exculpatory in nature," and particularly for information regarding "any other person implicated in the crime charged in this case" and copies of statements made by those persons. The Commonwealth denied awareness of any such information. In February 1990, however, Stockton's counsel received a letter from the trial prosecutor that he alleges contained references to potentially exculpatory material.

The letter indicated that the prosecutor told Randy Bowman before Stockton's trial that he would endeavor to help Bowman secure a transfer to another prison. ¹ A document enclosed with the letter also indicated that Gates had previously suggested an additional motive for Stockton's murder of Ronnie Tate than the one to which he testified at trial. In a statement given to North Carolina officials in 1980, Gates implied that two possible motives for the Tate murder existed: Tate's "running his mouth" about Arnder and Tate's discussion of alleged homosexual encounters with Stockton. Prior to the 1990 letter, Stockton maintains, he was unaware of this material and hence unaware of the factual bases for the instant claims.

On December 3, 1990, Stockton filed his fourth habeas petition in state court, alleging that he was entitled to a new trial on two grounds: first, that the Commonwealth failed to disclose evidence pursuant to Brady and Dozier v. Commonwealth, 219 Va. 1113, 253 S.E.2d 655 (1979), and second, that the Commonwealth knowingly elicited perjured testimony from an essential prosecution witness Bowman, during the guilt phase of Stockton's trial. The Patrick County Circuit Court dismissed this petition pursuant to Virginia's procedural default statute, Va.Code Ann. Sec. 8.01-654(B)(2), which provides that "[n]o writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition." The Virginia Supreme Court affirmed this dismissal in a written order dated June 25, 1992, agreeing with the lower court that Stockton's claims were procedurally barred. The United States Supreme Court denied certiorari. Stockton v. Virginia, --- U.S. ----, 113 S.Ct. 612, 121 L.Ed.2d 546 (1992).

Appellant thereafter filed the instant petition for a writ of habeas corpus in the federal district court, asserting the same claims raised in his fourth state court petition. On May 3, 1993, the Commonwealth filed a motion to dismiss the petition, arguing that the district court was barred from considering Stockton's claims because the state court had found those claims procedurally defaulted under Sec. 8.01-654(B)(2). The district court agreed with the Commonwealth and dismissed the petition on November 29, 1993. Stockton appeals from the district court's order dismissing his petition.

II.

The Supreme Court of Virginia expressly relied on a state procedural default statute, Va.Code Ann. Sec. 8.01-654(B)(2), to find that Stockton had defaulted his present claims in state court. The state court's finding of default bars federal habeas review of those claims, absent a showing of both cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

We thus turn to the question of whether there was cause to excuse the procedural default. According to McCleskey v. Zant, "[o]bjective factors that constitute cause include ... 'a showing that the factual or legal basis for a claim was not reasonably available to counsel.' " McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)); see also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988) ("Cause may be established for a procedural default where an objective impediment made compliance with a procedural rule impossible, as where the factual basis for a claim was not reasonably available to counsel.").

Stockton urges that the Commonwealth's failure to produce the materials provided in the 1990 letter at an earlier date constitutes "cause" for his procedural default. He insists that before he received the February 1990 letter from the trial prosecutor, he was unaware of the information it contained.

We cannot agree. Findings...