Watkins v. Rubenstein

• Citation: 802 F.3d 637
• Decision Date: 23 September 2015
• Docket Number: No. 14–6513.,14–6513.
• Parties: Steven A. WATKINS, Petitioner–Appellee, v. Jim RUBENSTEIN, Commissioner of the Division of Corrections; Benita F. Murphy, Chairperson of the West Virginia Parole Board; David Toler, Supervising Parole Officer, Respondents–Appellants, and Adrian Hoke, Warden at Huttonsville Correctional Center ; Marvin Plumley, Warden, Huttonsville Correctional Center, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

802 F.3d 637

Steven A. WATKINS, Petitioner–Appellee

v. Jim RUBENSTEIN, Commissioner of the Division of Corrections; Benita F. Murphy, Chairperson of the West Virginia Parole Board; David Toler, Supervising Parole Officer, Respondents–AppellantsandAdrian Hoke, Warden at Huttonsville Correctional Center ; Marvin Plumley, Warden, Huttonsville Correctional Center, Respondents.

No. 14–6513.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 29, 2015.

Decided: Sept. 23, 2015.

ARGUED:Elbert Lin, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Appellants. Michael Brian Hissam, Bailey & Glasser, LLP, Charleston, West Virginia, for Appellee. ON BRIEF:Patrick Morrisey, Attorney General, Christopher S. Dodrill, Assistant Attorney General, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Appellants.

Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges.

Opinion

Reversed by published opinion. Judge NIEMEYER wrote the majority opinion, in which Chief Judge TRAXLER joined. Chief Judge TRAXLER wrote a concurring opinion. Judge MOTZ wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

The district court granted Steven Watkins' petition for a writ of habeas corpus under 28 U.S.C. § 2254, finding that the West Virginia prosecuting attorney had, after trial, admitted to Watkins' defense counsel that the victim of Watkins' attempted robbery crime told the prosecuting attorney before trial that he, the victim, had not been put in fear by Watkins on the date of the crime, an element essential to conviction under West Virginia law, and that the prosecuting attorney had failed to so inform Watkins. Based on this finding, the district court concluded that the state habeas court had unreasonably applied the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

On appeal, the West Virginia officials named in Watkins' habeas petition (“the State”) claim that the district court impermissibly found new facts and erred in failing to give the appropriate deference to the state habeas court's factual findings and conclusions of law made with respect to its adjudication of Watkins' Brady claim. We agree and accordingly reverse.

I

A. Underlying Criminal Proceeding

On June 7, 2007, Steven Watkins entered Zimm's Pharmacy in Fayetteville, West Virginia, wearing a hard hat, sunglasses, and a red bandana that masked his face. When Watkins entered the store, only the owner, Mike Zimm, and two female employees were inside. Watkins began to ask Zimm a question, but Zimm could not understand it and asked Watkins to repeat the question. Watkins then “tried to move his mask, or his disguise ... so that [his speech] wouldn't be muffled as much” and repeated his question, asking Zimm whether he had “pushed the button” to activate the store's security system. Even though he had not done so, Zimm told Watkins that he had in fact activated the system, which prompted Watkins to flee the store and to enter a nearby apartment building.

Watkins was eventually arrested and charged with “attempted robbery in the second degree,” in violation of W. Va.Code § 61–2–12(b), which punishes “[a]ny person who ... attempts to commit robbery by placing the victim in fear of bodily injury.”

At Watkins' trial, Zimm testified on behalf of the State and explained how Watkins had placed him in fear of bodily injury:

Q: You indicated that you were fearful of [Watkins]; is that correct?

A: Yes, I was fearful. I didn't know what to expect for me or my employees.

Q: [W]as there anything going on ... in your business community at this time that triggered that fear ... ?

* * *

A: Yes, sir. There had been numerous robberies and, just recently before that, there had been a couple robberies in the Beckley area, Raleigh County.... Pharmacies, pharmacists.

* * *

Q: And what thought went through your head when you saw this man approaching you dressed ... in the manner that you saw that day?

A: I thought, “It's my turn. They've come to Fayette County.” That's what I thought.

Zimm's testimony at trial was consistent with a statement he gave to police officers on the day of the incident. It was also corroborated by the trial testimony of one of the employees in the store who observed Zimm:

Q: [C]an you tell me what came into your mind as to what was going on at [the time Watkins entered the store]?

A: Well, at first when he came in and he approached the counter, ... I at first thought it was a joke, because we have several customers that would do that. And then I realized—after he had asked [Zimm] about the alarm, [Zimm] had the look of, you know, something's bad, something's going on, and I knew it wasn't a [joke] anymore....

At the conclusion of the State's case, Watkins filed a motion for a judgment of acquittal, arguing that the evidence was insufficient to demonstrate that Zimm had been placed in reasonable fear of bodily injury, but the trial court denied the motion. And during closing argument, both Prosecuting Attorney Brian Parsons and defense counsel James Adkins presented argument with respect to the “fear” element.

The jury found Watkins guilty of the offense as charged, and the court sentenced him to a term of imprisonment of between 5 and 18 years. The Supreme Court of Appeals of West Virginia summarily denied Watkins' appeal, and Watkins did not seek review by the Supreme Court of the United States.

B. State Habeas Proceeding

Watkins filed a petition for a writ of habeas corpus in West Virginia state court, claiming, among other things, that he had been denied a fair trial because Prosecuting Attorney Parsons had failed to inform defense counsel Adkins that Zimm had told Parsons that he, Zimm, might not have been afraid of Watkins on the day of the attempted robbery. Watkins claimed that this nondisclosure was a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the prosecution, upon request, to provide the accused with evidence favorable to the accused. Specifically, Watkins' petition stated:

[Defense counsel Adkins] has provided a memorandum to habeas counsel indicating that he was present during a ... conversation with [Prosecuting Attorney Parsons] who allegedly uttered that the victim, Mike Zimm[,] told him that he was never afraid and [Parsons] responded [that] if that was the case then they should stop prosecuting at that time. If that is true ..., then the State of West Virginia failed to provide that exculpatory evidence to the defendant herein[, in violation of Brady ].

In the State's written response to Watkins' petition, Prosecuting Attorney Parsons admitted that he had had at least two discussions with Zimm before trial about the definition of the “fear” element and exactly what had to be proved at trial. But, as Parsons explained unequivocally:

Mr. Zimm did not state that he was “never afraid,” but rather he sought a better understanding of what fear meant in the context of this case.

Parsons attributed Zimm's questioning to a “certain amount of bravado” that existed in his relationship with Zimm and to the hesitation of one man to acknowledge fear to another.

The state court conducted an evidentiary hearing on Watkins' petition, and defense counsel Adkins testified at the hearing that, at an unrelated court proceeding after Watkins had been convicted, Prosecuting Attorney Parsons stated that Zimm “might not have been scared of Mr. Watkins” at the time of the incident. Specifically, Adkins said:

Q: Do you recall ... what was said at that time?

A. My contemporaneous note would probably be more accurate than my memory.... [W]e were at another hearing, and Mr. Parsons had stated something to the effect that Mr. Zimm might not have been scared of Mr. Watkins on ... the day of the alleged robbery.

(Emphasis added). Prosecuting Attorney Parsons did not dispute Adkins' testimony. Rather, in cross-examining Adkins, he obtained Adkins' agreement that Parsons' pretrial discussions with Zimm, during which they discussed the “fear” element, were appropriate:

Q: [Y]ou would agree with me that, although the term “fear” or being afraid, has some sort of common sense application or meaning, the term “fear” as it relates to a legal standard of being afraid is something that a person with an education such as Mr. Zimm might have a question about? Is that fair to say?

A: Yes.

Q: [I]sn't it also a fair statement that, if Mr. Zimm was not afraid of Mr. Watkins, there's really no sense in the case being prosecuted? Isn't that a fair way to look at it from the State's perspective?

A: [Yes].

Q: Do you have any problem with an attorney for the State saying to a victim that, “If you're not afraid or you don't feel that you were afraid, you need to tell me and we're not going to take this case forward.” Do you have a problem with that question? ... Do you feel in your professional opinion that that is coaching a witness?

A: No.

After receiving the evidence, the state habeas court denied Watkins' petition, issuing a written opinion that made findings of fact and conclusions of law. The court's relevant findings and conclusions were as follows:

The Court FINDS that, during trial, State witness/victim Mike Zimm testified that he was afraid of [Watkins] based upon what [Watkins] said in Mr. Zimm's store and upon [Watkins'] appearance. Mr. Zimm's trial testimony was consistent with the statement he gave to police at the time of the incident.

The Court FINDS that, at some time after the trial of this matter, [Adkins] was told that Mr. Zimm said he was not “afraid” at the time of the incident at issue. [Parsons] discussed with Mr. Zimm the definition of the word “fear” as it applied to the elements of the crime at issue, and that Mr. Parsons informed Mr. Zimm that if the element of fear did not exist, then the case could not be proven at trial. The discovery provided to the defense did not contain any reference to Mr. Zimm's alleged statement that he was not “afraid” or to the above

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