Savino v. Murray

Decision Date30 April 1996
Docket NumberNo. 95-4006,95-4006
PartiesJoseph John SAVINO, Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CA-93-869-R).

ARGUED: Gerald Thomas Zerkin, Gerald T. Zerkin & Associates, Richmond, Virginia, for Appellant. Eugene Paul Murphy, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Melanie A. Hopper, Gerald T. Zerkin & Associates, Richmond, Virginia; Donald R. Lee, Virginia Capital Representation Resource Center, Richmond, Virginia, for Appellant. James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge LUTTIG and Judge WILLIAMS joined.

OPINION

MURNAGHAN, Circuit Judge:

Virginia death row inmate Joseph John Savino, Jr., has appealed a federal district court's decision dismissing his petition for a writ of habeas corpus and denying his motion to alter or amend the judgment. Savino contends that the district court improperly found no merit in his constitutional claims concerning ineffective assistance of counsel, improper acceptance of his guilty plea, and impermissible use of expert testimony to be without merit. Because we agree with the district court's analysis and conclusions, we affirm the judgment below.

I.

On the night of November 29, 1988, Thomas McWaters was murdered at his farmhouse in Bedford County, Virginia. Two days later, Joseph Savino confessed to killing McWaters by repeatedly striking him on the head with a hammer and stabbing him in the neck and back.

At the time of the murder, Savino and McWaters lived together on McWaters's farm. They had met in 1980 when Savino worked for McWaters's construction firm while on parole from a New York prison sentence. In 1982, Savino was convicted of two counts of robbery and reincarcerated. During the next six years, McWaters frequently visited Savino in prison, communicated with him by telephone and gave him money. In return, Savino wrote affectionate letters to McWaters suggesting that they begin a homosexual relationship.

When Savino was paroled from prison in February 1988, he moved into McWaters's home. The two men became lovers. Later that year, Savino began using cocaine. Without permission, he wrote checks on McWaters's checking account in order to purchase drugs. When he overdrew the account, Savino faced twenty-six forging and uttering charges in Bedford County. Before Bedford authorities could find him, however, police in Roanoke, Virginia, arrested him on November 22, 1988, for possessing cocaine and drug paraphernalia. Released on a bail bond November 29, 1988, Savino returned to McWaters's farm.

That same evening, Savino spoke with a friend by telephone about killing McWaters, as he had done on previous occasions. 1 Later that night, Savino used cocaine, then joined McWaters in bed. When Savino refused to have sex, McWaters told him that he was "washing his hands of [him]." Savino went downstairs, thought a while and decided to "eliminate the problem." He picked up a hammer and returned to the upstairs bedroom where McWaters was sleeping. He struck McWaters on the head several times with considerable force. Believing McWaters still to be alive, Savino retrieved two knives from downstairs and stabbed him repeatedly in the neck and back. Leaving the knives in the victim's body, Savino took about $100 in cash and drove to Roanoke to purchase cocaine. Later that night, he revisited McWaters's house, loaded a car with his own property and some items belonging to McWaters, and then returned to Roanoke. The next day, November 30, 1988, police arrested Savino in Roanoke for failure to appear in court on the earlier drug charges.

Bedford authorities picked up Savino in Roanoke and took him back to their county jail to process him on the forging and uttering charges. They reported that, at first, Savino appeared lethargic and under the influence of drugs, but that by the time they arrived in Bedford County, he seemed substantially improved. Bedford police questioned Savino about the forgeries of McWaters's checks until he requested counsel. As officers processed the forgery warrants, a sergeant asked Savino why he had killed McWaters. Savino ended the interview, but after sleeping for several hours in a jail cell, he asked to speak with a particular investigator, Steve Rush. In two separate statements, Savino then confessed to killing McWaters.

A Bedford County grand jury indicted Savino on capital murder and robbery charges on December 2, 1988. 2 The court appointed counsel to represent Savino. On April 24, 1989, the day his jury trial was set to begin, Savino pled guilty to the charges. Pursuant to Virginia's bifurcated-trial procedure, the trial judge heard three days of testimony at the penalty phase. 3 On June 15, 1989, the judge found Savino to be a future danger and imposed a sentence of death. After reviewing the post-sentence report, he entered final judgment on July 20, 1989, sentencing Savino to death for the capital murder and to life imprisonment for the robbery.

On direct appeal, the same court-appointed counsel represented Savino. The Virginia Supreme Court affirmed Savino's convictions then independently reviewed Savino's sentence and found it neither excessive nor disproportionate. The United States Supreme Court denied certiorari on October 1, 1990. Savino then filed a habeas corpus petition in the Circuit Court of Bedford County, raising numerous challenges to his death sentence. After two evidentiary hearings, the circuit court entered an order dismissing the petition on June 5, 1992. The Virginia Supreme Court denied Savino's appeal on October 30, 1992, and the United States Supreme Court again denied certiorari on March 22, 1993.

Savino filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Virginia on November 17, 1993. He raised fourteen claims. The district court dismissed the petition on March 1, 1995, and denied a motion to amend or alter the judgment on June 7, 1995. Savino filed a timely appeal, challenging the district court's decision only with respect to his legal representation, guilty plea and future dangerousness.

II.

We review the district court's legal determinations de novo, keeping in mind, however, that any state court factual findings underlying those determinations are presumed to be correct and binding, as long as they were made after a hearing on the merits. 28 U.S.C. § 2254(d); see also Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770-71, 66 L.Ed.2d 722 (1981). The habeas petitioner bears the burden of establishing by convincing evidence that a state court's factual determinations were erroneous. Sumner, 449 U.S. at 550, 101 S.Ct. at 770-71.

A. Ineffective Assistance of Counsel

The record shows that Savino insisted upon pleading guilty against the defense counsel's advice. Before he entered his plea, Savino's appointed attorneys worked to prepare his case, consulting capital defense experts and investigating possible defenses. They discussed alternative strategies with Savino and advised him that by pleading guilty he would waive his rights to appeal his conviction. At the plea hearing, the state court judge reviewed a signed memorandum of understanding between Savino and his counsel. 4 Savino told the judge that his attorneys had reviewed the document with him and explained in detail the items it contained. 5 In open court, Savino told the judge that he understood everything in the memorandum, that he was satisfied with the service of his attorneys, and that he was pleading guilty voluntarily.

Savino now argues, and argued below, that his plea was not knowing and voluntary because his lawyers misadvised him. Savino contends that three viable defenses existed which counsel failed to disclose or pursue. He contends that he would not have pled guilty if he had known about these defenses, but rather, would have chosen to pursue them at trial because each was supported by substantial evidence. Savino maintains that his plea is particularly questionable because he received no benefit from it--no promise of a shorter sentence or a lesser charge in exchange. Whether counsel's performance was constitutionally adequate is a mixed question of law and fact which we review de novo. Ostrander v. Green, 46 F.3d 347, 354 (4th Cir.1995); Poyner v. Murray, 964 F.2d 1404, 1416 (4th Cir.), cert. denied, 506 U.S. 958, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992).

The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs Sixth Amendment ineffective assistance of counsel claims. In order to succeed, a criminal defendant must show, first, that he received deficient legal representation, and second, that the unprofessional errors prejudiced his case. Id. at 688, 694, 104 S.Ct. at 2064-65, 2068. Competency is measured against what an objectively reasonable attorney would have done under the circumstances existing at the time of the representation. Id. at 687-88, 104 S.Ct. at 2064-65. Because counsel's conduct carries a strong presumption of reasonableness, reversal is warranted only if the defendant can affirmatively prove prejudice. Id. at 689, 693, 104 S.Ct. at 2065, 2067-68. In the context of a guilty plea, the prejudice inquiry is "whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985). The defendant must show that "there is a...

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