Titcomb v. Com. of Va., 87-7588

Citation869 F.2d 780
Decision Date23 March 1989
Docket NumberNo. 87-7588,87-7588
PartiesKenneth L. TITCOMB, Petitioner-Appellant, v. COMMONWEALTH OF VIRGINIA; Judy Wyant, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Gary Raymond Hershner (Morrissey & Hershner, on brief), James Broome Thorsen (Thorsen & Page, on brief), Richmond, Va., for petitioner-appellant.

Eugene Paul Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), Richmond, Va., for respondents-appellees.

Before RUSSELL, MURNAGHAN and SPROUSE, Circuit Judges.

RUSSELL, Circuit Judge:

The appellant herein, a Virginia prisoner, appeals the denial of habeas relief from his rape and sodomy convictions. This appeal follows the disposition in two prior State petitions for habeas relief. The first of these State petitions raised basically a claim of ineffective representation by appellant's retained counsel. "[A]fter hearing the evidence at a plenary hearing in that proceeding," the Circuit Court denied the writ. That denial was affirmed on appeal by the Virginia Court of Appeals in a reported decision, Titcomb v. Wyant, 1 Va.App. 31, 333 S.E.2d 82 (1985). The appellant unsuccessfully petitioned for appeal from this decision to the Virginia Supreme Court. Some months after denial of the writ in this proceeding, the appellant filed his second State petition, which he characterized as a "Motion to Vacate Conviction" but which was construed and disposed of by the Virginia Supreme Court as a habeas application. In this second application, he raised substantially the same issues as he had in his first petition with this addition: he charged a Brady 1 violation in that the Commonwealth had failed to disclose to him before or at trial the record prepared by the Virginia State Police of an investigation by its officers of the facts involved in the charges herein, including specially the officers' account of their interviews of the prosecutrix. The appellant contended this failure represented "the suppression of evidence by the Prosecution, and the use of testimony known to be perjured by these same authorities." The State Circuit Court denied this second application for a habeas writ, reaching the same decision as it had earlier in its prior decision on all the claims other than that of "suppression of evidence." On the new claim in this second habeas petition, the State Circuit Court denied relief. The appellant then refiled his petition in the Virginia Supreme Court, which, after construing the appellant's motion to vacate as a second habeas action, dismissed anew the Brady claim for procedural default under state statutory law.

Some five or six months later, the appellant filed his federal habeas petition which is the subject of this appeal stating substantially the same grounds for relief as he had set forth in his second State petition. The District Court, in an opinion reviewed all the claims stated, and after an analysis of the record, dismissed all of them on the merits. On the Brady claim, the Court, after first referring to the decision of the Virginia Supreme Court dismissing this claim "on the grounds that 'no writ shall be granted on the basis of any allegation the facts of which the petitioner had knowledge at the time of filing any previous petition,' " declared, "[t]hus, it would appear that federal habeas review of this claim is barred absent a showing of cause and prejudice by the petitioner for such default." But it did not decide the case on that ground but chose to decide the claim on the merits. It did so "because the Commonwealth has failed to raise this issue and has elected instead to address the merits of petitioner's claim," and because of that "this court shall do likewise." After a full review of the claim on the merits, the Court found that the petitioner was not entitled to relief. It accordingly denied the claim. We affirm the dismissal of all the claims for relief by the defendant, though we dispose of the Brady claim as barred by the petitioner's procedural default and find no occasion to review in detail the claim on the merits. Since we affirm on the reasoning of the District Court all the other claims of the appellant on the merits, we will confine our discussion in this appeal to the Brady claim of the appellant.

I.

The Virginia Supreme Court dismissed the Brady claim first asserted by the appellant in his second habeas action because of the appellant's violation of Section 8.01-654.B.2, Virginia Code (1950, as amended). 2 The Virginia Supreme Court in its order of dismissal said:

On consideration whereof, the Court is of opinion that the writ of habeas corpus should not issue on grounds that no writ shall be granted on the basis of any allegation the facts of which the petitioner had knowledge at the time of filing any previous petition. Code Sec. 8.01-654.B.2. It is therefore ordered that the said petition be dismissed and that the Commonwealth recover of the petitioner all unpaid fees and costs in this case which are to be taxed by the clerk.

The appellant does not contest his procedural default under this statute. Nor could he well do so under the undisputed record. In his first habeas action, he had not charged a Brady violation. However, the facts on which he later in his second petition based his Brady claim were already available to him at the time he filed this action. Those facts were made known to him when the pre-sentence report was filed. That report had included the undisclosed State Police investigation, with its account of the prosecutrix's statement to the investigating officers. Manifestly, the appellant's admitted failure to assert his Brady claim in his first habeas action, even though the facts on which such claim could be raised were already available to him, barred him from asserting it later in a second petition if Section 8.01-654.B.2 is a valid exercise of state power.

The appellant does not challenge the constitutional validity of Section 8.01-654.B.2. Statutes similar to Section 8.01-654.B.2 have been accepted as free of constitutional infirmity since the decision of the United States Supreme Court in Murch v. Mottram, 409 U.S. 41, 46, 93 S.Ct. 71, 73, 34 L.Ed.2d 194 (1972). Moreover, Virginia federal courts in habeas actions have repeatedly upheld decisions of the Virginia State courts' dismissing such actions for procedural default resulting from a violation of this state statute. Smith v. Baker, 624 F.Supp. 1075, 1077-8 (E.D.Va.1985); Grooms v. Mitchell, 500 F.Supp. 137, 139-40 (E.D.Va.1980). And where a claim in a state petition has been denied relief at the state level for procedural default under a state statute or established state procedure such as the statute involved here, it is well settled that such denial forecloses any right to habeas relief in a subsequent federal action asserting such claim as a basis for relief, absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2644-46, 91 L.Ed.2d 397 (1986); Conquest v. Mitchell, 618 F.2d 1053, 1056 (4th Cir.1980); Lindsey v. Smith, 820 F.2d 1137, 1142-43 (11th Cir.1987); Allen v. Risley, 817 F.2d 68, 69 (9th Cir.1987); Cook v. Foltz, 814 F.2d 1109, 1111 (6th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 119, 98 L.Ed.2d 77 (1987); Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d 524 (1987); Smith v. Wainwright, 777 F.2d 609, 614 (11th Cir.1985), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986). We have precisely that situation here.

It is, however, the position of the appellant that the State, by failing to plead in its initial pleading in the District Court (irrespective of the fact that it may have in its second response) the procedural default bar effectively waived any right, even a right in a subsequent pleading, to claim procedural default as a defense to appellant's federal habeas claim and is thereby foreclosed from relying on that defense which, had it been pled initially, would have absolutely barred appellant's right to federal habeas relief, there being no "cause and prejudice" claim by the appellant. It relies on the recent decision in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) as authority for this position. We do not construe Granberry as providing any support to appellant's contention.

In Granberry, which was a non-exhaustion case and not, as here, a procedural default defense, the State had not raised the non-exhaustion in the District Court habeas proceedings and had only raised such plea for the first time in appellant's appeal to the Court of Appeals. In this case, on the other hand, while the procedural default defense had not been pled by the State in its initial motion to dismiss it would appear that it did raise it in its second response, and if it did not, the issue was clearly put in issue by the admission of the Virginia Supreme Court decision as a part of the record in the case. The basis for the defense was the order of the Virginia Supreme Court dismissing finally appellant's Brady claim for procedural default. That order was conclusive on the issue. As we have said, it was admitted as a part of the record in the District Court and it was before the District Court when it reached its decision. Under such circumstances when the evidence necessary to establish the procedural defense is in the record without objection, and when that defense is the overriding issue in the case, conclusive against appellant's claim, the issue so established is "to be treated in all respects as if [it] had been raised in the pleadings" and while the tidy way to handle the matter would be a motion to conform the pleadings to the...

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3 cases
  • U.S. v. Pollard, 90-3276
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 28, 1992
    ...408, 410 (10th Cir.1988); United States ex rel. Bonner v. DeRobertis, 798 F.2d 1062, 1066 (7th Cir.1986); but cf. Titcomb v. Virginia, 869 F.2d 780, 782-84 (4th Cir.1989) (no waiver where "it would appear" that the state raised the issue in its second response and where the evidence of the ......
  • Meadows v. Legursky, s. 86-6748
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 7, 1990
    ...court's decision which relied on such a default to bar consideration of the disputed constitutional claim. Titcomb v. Commonwealth of Va., 869 F.2d 780, 782-84 (4th Cir.1989). Here, the state court's decision in Acord's appeal was admitted into evidence before the federal magistrate, so the......
  • Yeatts v. Angelone
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 12, 1999
    ...v. Lee, 971 F.2d 1125, 1128 n.2 (4th Cir.1992), Meadows v. Legursky, 904 F.2d 903, 907 (4th Cir.1990) (en banc), and Titcomb v. Virginia, 869 F.2d 780, 783 (4th Cir.1989), hold that a state may press a habeas petitioner's procedural default despite its failure to raise that issue properly b......

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