869 F.2d 780 (4th Cir. 1989), 87-7588, Titcomb v. Com. of Va.

Docket Nº:87-7588.
Citation:869 F.2d 780
Party Name:Kenneth L. TITCOMB, Petitioner-Appellant, v. COMMONWEALTH OF VIRGINIA; Judy Wyant, Respondents-Appellees.
Case Date:February 10, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 780

869 F.2d 780 (4th Cir. 1989)

Kenneth L. TITCOMB, Petitioner-Appellant,

v.

COMMONWEALTH OF VIRGINIA; Judy Wyant, Respondents-Appellees.

No. 87-7588.

United States Court of Appeals, Fourth Circuit

February 10, 1989

        Argued Oct. 3, 1988.

        Rehearing and Rehearing In Banc Denied March 23, 1989.

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        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

Page 782

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...

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