Correll v. Thompson

• Decision Date: 24 August 1995
• Docket Number: 94-4012,Nos. 94-4007,s. 94-4007
• Citation: 63 F.3d 1279
• Parties: Walter Milton CORRELL, Jr., Petitioner-Appellee, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional Facility, Respondent-Appellant. Walter Milton CORRELL, Jr., Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1279

63 F.3d 1279

Walter Milton CORRELL, Jr., Petitioner-Appellee, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional

Facility, Respondent-Appellant.

Walter Milton CORRELL, Jr., Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional

Facility, Respondent-Appellee.

Nos. 94-4007, 94-4012.

United States Court of Appeals, Fourth Circuit.

Argued April 6, 1995.

Decided Aug. 24, 1995.

ARGUED: Katherine P. Baldwin, Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellant. Joseph D. Tydings, Anderson, Kill, Olick & Oshinsky, Washington, DC, for appellee. ON BRIEF: James S. Gilmore, III, Atty. Gen. of Virginia, Office of the Atty. Gen., Richmond, VA, for appellant. Lois Casaleggi Wolf, Anderson, Kill, Olick & Oshinsky, Washington, DC; Robert E. Pokusa, Kevin P. Sherburne, Paul, Hastings, Janofsky & Walker, Washington, DC; Donald R. Lee, Michele Brace, Virginia Capital Representation Resource Center, Richmond, VA, for appellee.

Before WILKINSON and WILKINS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Judge WILKINS

wrote the opinion, in which Judge WILKINSON and Senior Judge PHILLIPS joined.

OPINION

WILKINS, Circuit Judge:

Walter Milton Correll, Jr. brought this action ¹ pursuant to 28 U.S.C.A. Sec. 2254 (West 1994), challenging the constitutionality of his Virginia convictions for capital murder and robbery and his resulting sentences of death and life imprisonment. The district court vacated Correll's convictions and sentences and ordered that Correll be released unless retried by the Commonwealth within six months. Correll v. Thompson, 872 F.Supp. 282, 298 (W.D.Va.1994). It concluded that a confession admitted into evidence during the Commonwealth's case against Correll was obtained after he had invoked his right to counsel and in response to custodial interrogation by law enforcement officers in violation of the principle established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Id. at 289-92. Alternatively, the district court determined that the writ of habeas corpus should issue because this confession was tainted by two earlier ones that had been elicited in violation of Edwards. Id. at 292-94. The Commonwealth appeals the decision of the district court to grant the writ of habeas corpus, and Correll cross appeals the refusal of the district court to grant the writ on the basis of other claims raised in his petition. We conclude that the district court erred in granting the writ.

I.

Correll robbed and murdered Charles W. Bousman, Jr. on August 11, 1985. The evidence and testimony presented at Correll's trial demonstrated that on the evening of August 10th, Correll met John Dalton and Richard Reynolds at the home of Rhonda Small in Roanoke, Virginia. The three men left Small's residence either late that night or in the early morning hours of August 11th and walked to an overpass at Interstate 581. During the walk, Correll began to discuss "getting a car," and as they neared the overpass, Correll instructed Dalton and Reynolds to wait on a hill next to the overpass while he remained on the street below. A maroon Buick automobile driven by Bousman soon stopped beside Correll, who entered the front passenger seat of the vehicle and motioned for Dalton and Reynolds to approach. Bousman noticed Dalton behind the Buick and exited the vehicle to investigate. Correll followed Bousman, seized him in a stranglehold, and choked him until he lost consciousness. After stealing Bousman's wallet and placing him in the trunk of the automobile, Correll departed in the Buick with Dalton and Reynolds.

Correll drove to a wooded area of Franklin County, Virginia and robbed Bousman, who was still unconscious, of a ring and a pocket watch. Correll then removed Bousman from the trunk and kicked him in the face four to five times as he lay on the ground. Correll and Dalton dragged Bousman into the woods where Correll produced a hunting knife discovered in the Buick during the drive. Correll hurled the knife into Bousman's body, removed it and handed it to Reynolds, who made a minor cut on Bousman's neck with it. Correll retrieved the knife and again threw it into Bousman. Correll then pulled the knife from Bousman's body and instructed Dalton "to get rid of it." The three men left in the Buick, and during the return trip to Roanoke, at Correll's direction, Dalton pitched the knife beneath a bridge before returning to Small's home.

Bousman's badly decomposed body was discovered in Franklin County approximately one week later. An autopsy revealed two stab wounds to the chest, one that penetrated the right lung--severing the pulmonary artery and causing Bousman's death--and another that caused Bousman's left lung to collapse and which, untreated, would have resulted in his death.

After Dalton and Reynolds implicated Correll in the murder, he was taken into custody by Roanoke police on Friday, August 16th. Although Correll invoked his right to counsel during police questioning, the police did not honor his request for counsel by ceasing interrogation, and Correll gave two confessions that evening--one to a Roanoke police detective and another later that night to Investigator Overton of the Franklin County Sheriff's Department.

On Sunday, August 18th, Correll was transported from the jail in Roanoke, where he was being detained, to Appomattox, Virginia to undergo a polygraph examination. Following the polygraph examination, Correll was transported by Officer Ferguson of the Franklin County Sheriff's Department to the Franklin County jail to be processed on the arrest warrant for the murder and robbery of Bousman. While detained in a holding cell there, Correll asked to speak with Investigator Overton. Correll initiated this contact so that he could explain the results of the polygraph examination to Overton. After Investigator Overton gave Correll Miranda warnings, Correll waived these rights and began to answer Investigator Overton's questions. This questioning ultimately led to another confession.

Correll moved to suppress all three confessions. The state court ruled that the first two confessions had been obtained in violation of Edwards and were therefore inadmissible; they were not offered against Correll at trial. However, the state court refused to suppress the third confession, ruling that Correll had initiated the conversation with Investigator Overton; that Correll had made an intelligent waiver of his rights; and that the third confession was not tainted by the earlier two confessions of August 16th.

Correll subsequently waived his right to a jury trial and was tried and convicted of capital murder and robbery. He was sentenced to death for the murder after the judge found it was outrageously and wantonly vile, horrible, and cruel and was sentenced to life imprisonment for the robbery.

These convictions and sentences were upheld on direct appeal. Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d 352 (1987). The Supreme Court of Virginia specifically rejected Correll's claim that the third confession should have been suppressed on the basis that Investigator Overton actually had initiated the questioning or because the questioning at the Franklin County jail was merely a continuation of the polygraph examination. Id., 352 S.E.2d at 356-57. In addition, the Supreme Court of Virginia conducted a proportionality review in accordance with Va.Code Ann. Sec. 17-110.1(C)(2) (Michie 1988) and concluded that Correll's sentence was not disproportionate or excessive compared to the sentences imposed in comparable capital murder cases. Id., 352 S.E.2d at 360-61. The United States Supreme Court denied Correll's petition for certiorari, and his conviction became final on June 15, 1987. Correll v. Virginia, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987).

Correll then brought a state habeas proceeding raising a litany of issues. The state habeas court held that all of the issues advanced, except Correll's ineffective assistance of counsel claims, were procedurally barred and accordingly dismissed them. The state habeas court then conducted a plenary evidentiary hearing on Correll's claims of ineffective assistance of counsel. Among these claims was one that counsel had been ineffective in failing to investigate adequately the circumstances surrounding the third confession. Following this hearing, the court denied relief. ² Correll appealed this decision to the Supreme Court of Virginia, but review was denied. Thereafter, the United States Supreme Court again denied Correll's petition for certiorari.

In February 1991, Correll filed this Sec. 2254 petition, his first, in the district court. The Commonwealth immediately moved to dismiss. It argued that many of Correll's claims were procedurally barred. And, with respect to those issues that were not procedurally barred, the Commonwealth asserted that the factual findings of the state courts were entitled to a presumption of correctness under Sec. 2254(d) and that, based on these findings, Correll was not entitled to relief. For nearly three years thereafter the petition languished; at last, in December 1993, the district court conducted a hearing on the Government's motion to dismiss. In May of 1994, the district court finally ruled, granting the Commonwealth's motion, dismissing Correll's petition, and concluding that an evidentiary hearing on the petition was not necessary since Correll had had a full and fair hearing in the state proceedings. However, in July 1994, the court granted Correll's motion pursuant to Federal Rule of Civil Procedure 59(e) ³ and vacated its prior decision. The following month, three and one-half years after Correll filed the petition, the district court entered an order granting the writ on the basis of errors it perceived concerning the admission of the third confession. ⁴

The Commonwealth appeals,...