Turner v. Jake

• Citation: 58 F.3d 924
• Decision Date: 27 June 1995
• Docket Number: No. 95-4005,95-4005
• Parties: Willie Lloyd TURNER, Petitioner-Appellant, v. John JABE, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 924

58 F.3d 924

Willie Lloyd TURNER, Petitioner-Appellant, v. John JABE, Warden, Respondent-Appellee.

No. 95-4005.

United States Court of Appeals, Fourth Circuit.

Submitted May 23, 1995.

Decided May 24, 1995.

Ordered Published June 27, 1995.

Walter J. Walvick, James vanR. Springer, Adam Proujansky, Dickstein, Shapiro & Morin, L.L.P., Washington, DC; Howard F. Goldstein, Michael F. Colosi, Fried, Frank, Harris, Shriver & Jacobson, New York City, for appellant.

Robert H. Anderson, III, Office of the Atty. Gen. of Virginia, Richmond, VA, for appellee.

Before HALL, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge MICHAEL wrote the majority opinion, in which Judge K.K. HALL concurred. Judge LUTTIG wrote a separate opinion concurring in the judgment.

OPINION

MICHAEL, Circuit Judge:

Willie Lloyd Turner, who has been on death row in Virginia for fifteen years, is scheduled to be executed on May 25, 1995. Turner has filed a single-issue petition for a writ of habeas corpus (his fourth federal habeas petition overall) arguing that the Commonwealth of Virginia would violate the Eighth Amendment's prohibition against cruel and unusual punishment by executing him after the fifteen years he has spent on death row under allegedly torturous conditions. The district court dismissed his petition. We hold that Turner has inexcusably abused the writ, and therefore we affirm the judgment of the district court.

I

A. Procedural History

The facts of Turner's crime have been set forth on several occasions, see Turner v. Williams, 35 F.3d 872 (4th Cir.1994), cert. denied sub nom. Turner v. Jabe, --- U.S. ----, 115 S.Ct. 1359, 131 L.Ed.2d 216, (1995), as has the extensive procedural history of his case, see id. We need only summarize here the relevant procedural history.

On July 12, 1978, Turner murdered W. Jack Smith, Jr., during an armed robbery of Mr. Smith's jewelry store. In December 1979 a Virginia jury convicted him and fixed his sentence at death. The trial court imposed the death penalty on February 6, 1980. Turner appealed his conviction and death sentence, the Supreme Court of Virginia affirmed, and the Supreme Court of the United States denied his certiorari petition.

Turner then filed a habeas petition in Virginia circuit court. The circuit court dismissed the petition, the Supreme Court of Virginia refused his petition for appeal, and the Supreme Court of the United States denied his petition for certiorari. Turner next filed a federal habeas petition in the United States District Court for the Eastern District of Virginia. The district court denied the petition, our court affirmed, and Turner again petitioned the Supreme Court for certiorari review. (Before filing that petition he submitted two more habeas petitions--one federal, one state--which were dismissed.) This time the Supreme Court granted his certiorari petition, and in April 1986 the Court vacated his death sentence. ¹

In January 1987 Turner returned to Virginia circuit court for resentencing. Once again, a jury recommended the death penalty. In March 1987 the circuit court imposed the death penalty, and on direct appeal the Supreme Court of Virginia affirmed. In May 1988 the Supreme Court of the United States denied his petition for certiorari.

In September 1988 Turner filed a habeas petition in Virginia circuit court. The circuit court dismissed the petition, and in April 1991 the Supreme Court of Virginia denied his appeal.

In December 1991 Turner filed a federal habeas petition in the Eastern District of Virginia. The district court denied his petition in February 1992. We affirmed on September 28, 1994. On March 20, 1995, the Supreme Court denied his petition for certiorari.

In the final analysis, fifteen years elapsed between Turner's original death sentence (February 1980) and the Supreme Court's final denial of certiorari in Turner II (March 1995). Over four and one-half of those fifteen years were spent on collateral review in Turner I. The collateral proceedings in Turner II consumed another eight years, bringing the total to twelve and one-half years on collateral review.

B. Turner's Latest Challenge

On April 24, 1995, around one month after the Supreme Court last denied certiorari in Turner II, the Virginia circuit court scheduled Turner's execution for May 25, 1995. On April 27, three days after that scheduling order, Turner initiated yet another challenge to his execution by filing a single-issue habeas petition in the Supreme Court of Virginia, his fourth state habeas petition. He argued that to execute him now, after he has endured the psychological torture of fifteen years on death row, would violate the Eight Amendment's prohibition against cruel and unusual punishment. For a remedy, he asked that the court order the Commonwealth to commute his death sentence to a sentence of life imprisonment without the possibility of parole.

Turner's Eighth Amendment claim drew largely from Justice Stevens's March 27, 1995, memorandum respecting the denial of certiorari in Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995). In Lackey the Supreme Court unanimously declined to review a habeas petitioner's claim that the Eighth Amendment prohibited the execution of a prisoner who had already spent seventeen years on death row. Justice Stevens wrote to say that he thought the issue was important and undecided and one that would benefit from further study in the state and federal courts. (Justice Breyer agreed that the issue was important and undecided. Id. --- U.S. at ----, 115 S.Ct. at 1422. None of the other Justices expressed a view one way or the other.) According to Turner, he had not anticipated filing another habeas petition after the Supreme Court's March 20, 1995, denial of his last certiorari petition, but he was compelled to do so after he learned of Justice Stevens's memorandum in Lackey.

On May 15, 1995, the Supreme Court of Virginia dismissed Turner's habeas petition on the ground that it was procedurally defaulted under Sec. 8.01-654(B)(2) of the Code of Virginia, Virginia's "abuse of the writ" statute. ² The petition then moved to the Eastern District of Virginia, where it became Turner's fourth federal habeas petition. The district court dismissed the petition on the merits. Turner appeals.

II

The Commonwealth urges that the federal abuse-of-the-writ doctrine precludes us from reviewing the merits of Turner's Eighth Amendment claim. ³ The Commonwealth explains that Turner could have raised this claim in his third federal habeas petition, the petition he filed in December 1991 in Turner II. Because the Commonwealth has satisfied its burden of pleading abuse of the writ, see McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991), Turner has the "burden to disprove abuse," id.

The standard used to excuse an abuse of the writ is well established. Turner must show "cause" for failing to raise his claim in an earlier petition and "actual prejudice" resulting from the constitutional violation he alleges. Or, in the alternative, he must show that a "fundamental miscarriage of justice" would result from our failure to entertain his claim on the merits. Id. at 494-95, 111 S.Ct. at 1470. We conclude below that Turner has established neither cause nor a fundamental miscarriage of justice. Therefore, we will not excuse his abuse of the writ.

A. Cause

"[C]ause ... requires a showing of some external impediment preventing counsel from constructing or raising the claim." Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986). The existence of cause here hinges on whether Turner can show that "some objective factor external to the defense," id. at 488, 106 S.Ct. at 2645, impeded his efforts to raise in his December 1991 petition his new Eighth Amendment claim. Turner argues that he could not have raised this issue in 1991 because neither the legal nor factual bases for his claim were then available. See id.

1. The novelty of Turner's claim

Turner first argues that his claim raises a novel legal issue that had not yet entered the legal landscape when he filed his 1991 petition. To succeed in this argument, Turner must show that his claim is "so novel that its legal basis [was] not reasonably available," Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), to him in 1991. Put another way, Turner must show that in 1991 his lawyer did not have "a 'reasonable basis' upon which to develop [this] legal theory," id. at 17, 104 S.Ct. at 2911.

Turner's argument here basically is this: "it was not until November of 1993, when the Privy Council rendered its landmark decision in Pratt & Morgan, that the basis for the claim here became obvious," Habeas Petition at p 109. See also id. at p 113 ("the legal theory supporting this petition [did] not mature until the Pratt & Morgan decision in 1993"). Turner is referring to Pratt v. Attorney General for Jamaica, [1994] 2 A.C. 1, 4 All E.R. 769 (P.C.1993) (en banc), where the Privy Council held that a delay of fourteen years between petitioner's death sentence and his execution violated the Jamaican constitution. We cannot agree that this issue suddenly emerged in Pratt.

First, if Turner wishes to cite the Privy Council he must acknowledge that in 1983 the Privy Council rejected, over a dissent, a constitutional attack based on the delay between a death sentence and execution. See Riley v. Attorney General of Jamaica, [1983] 1 A.C. 719, 3 All E.R. 469 (P.C.1983). Although Pratt overruled Riley and adopted the views of the Riley dissenters, Riley clearly demonstrates that the issue was a live one by 1983. See Engle v. Isaac, 456 U.S. 107, 133 n. 41, 102 S.Ct. 1558, 1574 n. 41, 71 L.Ed.2d 783 (1982) ("Even those decisions rejecting the defendant's claim, of course, show that the issue had been perceived by other defendants and that it was a live one in the courts at the time.")...