92 F.3d 1350 (4th Cir. 1996), 95-4012, Hoke v. Netherland

Docket Nº:95-4012, 95-4013.
Citation:92 F.3d 1350
Party Name:Ronald Lee HOKE, Sr., Petitioner-Appellee, v. J.D. NETHERLAND, Warden, Respondent-Appellant. Ronald Lee HOKE, Sr., Petitioner-Appellant, v. J.D. NETHERLAND, Warden, Respondent-Appellee.
Case Date:August 22, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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92 F.3d 1350 (4th Cir. 1996)

Ronald Lee HOKE, Sr., Petitioner-Appellee,


J.D. NETHERLAND, Warden, Respondent-Appellant.

Ronald Lee HOKE, Sr., Petitioner-Appellant,


J.D. NETHERLAND, Warden, Respondent-Appellee.

Nos. 95-4012, 95-4013.

United States Court of Appeals, Fourth Circuit

August 22, 1996

Argued June 3, 1996.

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[Copyrighted Material Omitted]

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ARGUED: Pamela Anne Rumpz, Assistant Attorney General, Office of Attorney General, Richmond, Virginia, for Appellant. Gerald Thomas Zerkin, Gerald T. Zerkin & Associates, Richmond, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney General of Virginia, Office of Attorney General, Richmond, Virginia, for Appellant. Donald R. Lee, Virginia Capital Representation Resource Center, Richmond, Virginia; Brian F. Kenney, Miles & Stockbridge, P.C., Fairfax, Virginia, for Appellee.

Before RUSSELL, HALL, and LUTTIG, Circuit Judges.

Reversed by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge RUSSELL joined. Judge HALL wrote a dissenting opinion.


LUTTIG, Circuit Judge:

Petitioner, Ronald Lee Hoke, Sr., was convicted in 1986 of capital murder in the robbery, rape, and abduction of Virginia C. Stell. The United States District Court for the Eastern District of Virginia granted Hoke's writ of habeas corpus, vacated his death sentence, and remanded for a new trial. For the reasons that follow, we reverse and remand with instructions to reinstate Hoke's death sentence.


On October 15, 1985, at 3:25 a.m., Hoke flagged down a police officer in Hagerstown, Maryland, and confessed to murdering Virginia C. Stell some ten days earlier in her apartment in Petersburg, Virginia. Later that day, Hoke repeated his confession to members of the Petersburg, Virginia, police force. Two days later, while in the Petersburg jail, Hoke contacted the Petersburg police and, for the third time, confessed to murdering Stell.

On October 4 or 5, 1985, Hoke and Stell were both at the European Restaurant in Petersburg, Virginia. Stell arrived first, but Hoke later joined her at her table. At about 6:00 p.m., the two departed the restaurant together.

On October 7, 1985, police discovered Stell's body in the bedroom of her apartment. She was bound and gagged, and lying on her stomach, dead. Her wrists were bound with a blue electrical cord, which had been removed from an electric clothes iron. Her ankles were bound with a brown electrical extension cord. Her mouth was gagged with a pair of panties, which were tied around her head so tightly that they left an "impression" on her face. J.A. at 144. And her anal ring was dilated and smeared with both stool and a greasy, yellow substance, "like margarine or butter." J.A. at 149.

Stell had been stabbed twice, once in the upper right front quadrant of her body and a second time in the right side of her back. The frontal wound was six-and-one-half

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inches deep, and the back wound was two-and-five-eighths inches deep. J.A. at 153-54. Additionally, there were fresh, red bruises on her arms. J.A. 150-51. The medical examiner opined that Stell had survived "at least several minutes" after being stabbed. J.A. at 152.

In Stell's bedroom, the police found a knife, covered with blood, laying on an ironing board. J.A. at 181. The blood on the knife matched Stell's blood type. J.A. at 167-68. Also on the ironing board was an iron, the cord from which had been removed and used to bind Stell's wrists. J.A. at 182. Several dresser drawers were open and their contents were "dumped" on the bedroom floor. J.A. at 188, 190. Items from two purses--including empty pill containers--were also strewn upon the bedroom and adjacent dining room and kitchen floors. J.A. at 187-88, 190. The smoke detector had been ripped from the ceiling socket. J.A. at 181.

Swabs and smears were taken from Stell's anus and vagina and tested in a laboratory for the presence of semen. The laboratory identified semen "on the vaginal swabs and smear, on the anal smear," and on a "towel labelled 'peri-anal wipings.' " J.A. at 162-63. Semen found on the sheets and bedspread in the bedroom was consistent with Hoke's blood type. J.A. at 165.

In Hoke's first confession, on October 15, he told the Hagerstown police that he had met a woman named Virginia Stell at the European Restaurant, and that he and the woman had gone to her apartment. He said that he had then murdered her by stabbing her twice, "once in the back, once in the abdomen area in the front." J.A. at 195. After he had stabbed her, "she was screaming," so he had "placed a pillow ... over her face to muffle [the] screaming." J.A. at 196. Hoke said that he had known the woman was dead before he left the apartment "because she wasn't breathing, she wasn't moving, and her eyes were rolled back in her head." Id. Finally, Hoke said that he had "dumped [Stell's] purse and [taken] some pills and left" the apartment. Id.

In Hoke's second confession on that same day, he told the Petersburg police that, after arriving at Stell's apartment, the two of them had "had sex." J.A. at 207. Then, he had "put [a knife] to her throat and tied her up, gagging her mouth, tying her hands, tying her feet together." Id. He said that he had then stabbed her in the back with the knife, muffling her screams with a pillow, and rolled her over and stabbed her in the stomach. As Stell continued to scream, Hoke had "held the pillow over her face for between four and five minutes in an attempt to suffocate her," until she died. J.A. at 208. He had then ransacked her apartment and stole some medication that was in Stell's purse. Id.

On October 17, while in the Petersburg jail, Hoke contacted the police and confessed for a third time. On this occasion, he told police that he had decided to kill Stell while they were walking to her apartment, adding that he had thought about killing someone for a long time, and "this seemed like a perfect opportunity" to do it. J.A. at 209.

On August 5, 1986, Hoke was tried before a jury in the Circuit Court of the City of Petersburg. The jury found Hoke guilty of capital murder in the commission of robbery, rape, and abduction. Concluding that Hoke "constitute[d] a continuing serious threat to society" or that his crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind or aggravated battery to the victim," the jury "unanimously fix[ed] [Hoke's] punishment at death." J.A. at 395-396.

The Virginia Supreme Court thereafter affirmed Hoke's conviction and sentence on March 3, 1989, Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595, 597-600 (1989), and the United States Supreme Court denied certiorari, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989).

On March 13, 1990, Hoke filed his first state habeas petition in the City of Petersburg Circuit Court. Following an evidentiary hearing, the petition was denied. J.A. at 674. The Virginia Supreme Court subsequently denied Hoke's petition for appeal and his petition for rehearing, and the United States Supreme Court denied Hoke's second petition for a writ of certiorari. Hoke v.

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Thompson, 502 U.S. 880, 112 S.Ct. 228, 116 L.Ed.2d 185 (1991).

On April 29, 1991, Hoke filed his second state habeas petition in the City of Petersburg Circuit Court. It, too, was dismissed, J.A. at 705, and the Virginia Supreme Court again refused Hoke's petition for appeal.

In January 1992, Hoke filed the present federal habeas petition pursuant to 28 U.S.C. § 2254. Initially, the district court dismissed the petition, denying Hoke's request for an evidentiary hearing. Hoke v. Thompson, 852 F.Supp. 1310 (E.D.Va.1994). In August 1994, however, the district court vacated its earlier decision and ordered a hearing on an issue different from those presented on this appeal.

Prior to that hearing, which was held in November 1994, and in connection with the matter to be addressed at that hearing, the district court ordered the Commonwealth to produce the prosecution's file from the state court proceedings. In response, the Commonwealth offered, and the district court received, the Petersburg Police Department Files. These files included witness interviews with three men--James Henry Jones, Lowell Eastes, and Dale Griesert--who claimed they had previously had sex with Stell. J.A. at 796-99, 804-05. In these interviews, Jones and Eastes each claimed that he had previously had vaginal sex with Stell. Griesert, who stated that he had not seen Stell for almost a year, said that he and Stell had had vaginal sex together and that on one occasion they had also engaged in anal sex. Griesert stated that the anal sex had been at Stell's behest, and that she had provided Vaseline as a lubricant.

On the basis of these interviews, the district court permitted Hoke to amend his petition to add, for the first time, a claim that the prosecution had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court also allowed Hoke to add to his petition a separate claim that the prosecution had knowingly suborned perjured testimony in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), when it presented at trial the testimony of Hoke's fellow inmate, Emmett Sallis. The district court thereafter concluded that neither of the newly-added claims was procedurally barred, and that with respect to both, Hoke had established that his rights had been violated. Reasoning that the Brady violation rendered invalid Hoke's predicate rape conviction and that the Napue violation rendered invalid both Hoke's predicate robbery and abduction convictions, the court...

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