95 F.3d 1214 (4th Cir. 1996), 94-4013, O'Dell v. Netherland

Docket Nº:94-4013, 94-4014.
Citation:95 F.3d 1214
Party Name:Joseph Roger O'DELL, III, Petitioner-Appellee, v. J.D. NETHERLAND, Warden, Mecklenburg Correctional Center; Ronald J. Angelone, Director, Virginia Department of Corrections; James S. Gilmore, III, Attorney General of the Commonwealth of Virginia; Commonwealth of Virginia, Respondents-Appellants. Joseph Roger O'DELL, III, Petitioner-Appellant, v. J.
Case Date:September 10, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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95 F.3d 1214 (4th Cir. 1996)

Joseph Roger O'DELL, III, Petitioner-Appellee,

v.

J.D. NETHERLAND, Warden, Mecklenburg Correctional Center;

Ronald J. Angelone, Director, Virginia Department of

Corrections; James S. Gilmore, III, Attorney General of the

Commonwealth of Virginia; Commonwealth of Virginia,

Respondents-Appellants.

Joseph Roger O'DELL, III, Petitioner-Appellant,

v.

J.D. NETHERLAND, Warden, Mecklenburg Correctional Center;

Ronald J. Angelone, Director, Virginia Department of

Corrections; James S. Gilmore, III, Attorney General of the

Commonwealth of Virginia; Commonwealth Of Virginia,

Respondents-Appellees.

Nos. 94-4013, 94-4014.

United States Court of Appeals, Fourth Circuit

September 10, 1996

Argued Dec. 5, 1995.

As Amended Dec. 9, 1996.

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ARGUED: Eugene Paul Murphy, Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellants. Robert S. Smith, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney General of Virginia, Linwood T. Wells, Jr., Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellants. Jeffrey M. Eilender, Paul, Weiss, Rifkind, Wharton & Garrison, New York City; Patricia M. Schwarzschild, Hunton & Williams, Richmond, VA; Michele J. Brace, Donald Lee, Virginia Capital Representation

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Resource Center, Richmond, VA, for Appellee.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, WILKINS, NIEMEYER, and WILLIAMS joined. Judge ERVIN wrote an opinion concurring in part and dissenting in part, in which Judges HALL, MURNAGHAN, HAMILTON, MICHAEL, and MOTZ joined.

OPINION

LUTTIG, Circuit Judge:

The United States District Court for the Eastern District of Virginia vacated the death sentence of Joseph Roger O'Dell III on federal habeas, holding that Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), was not a "new rule" under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and that O'Dell "was deprived of due process and subjected to cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, because the trial court failed to allow petitioner to rebut the prosecutor's argument as to petitioner's future dangerousness with evidence that he would be ineligible for parole under state law," J.A. at 355. The district court also denied numerous other claims of O'Dell's, including his claim that new evidence demonstrates that he is actually innocent.

Heeding the instruction of three Members of the Supreme Court that this case "should ... receive careful consideration," O'Dell v. Thompson, 502 U.S. 995, 999, 112 S.Ct. 618, 620, 116 L.Ed.2d 639 (1991) (Blackmun, J., joined by Stevens and O'Connor, JJ.), both the federal district court and now the full en banc court have painstakingly canvassed the record, carefully considering every claim that has been advanced by petitioner. Having done so, we are convinced that O'Dell's claims are without merit and his claim of actual innocence not even colorable. We are likewise convinced that the federal district court erred in concluding that Simmons did not announce a new rule. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), every Member of the Supreme Court apparently approved, as constitutionally permissible, the very practice later held unconstitutional in Simmons. The only even arguably contrary authority was a plurality opinion and a single footnote which three Members of the Court believed represented an "abandonment" of the due process holding that O'Dell now contends compelled the result in Simmons. In our judgment, Simmons was the paradigmatic "new rule." Accordingly, we affirm the district court's denial of O'Dell's secondary claims and reverse the district court's judgment granting the writ of habeas corpus.

I.

Over ten years ago, on Tuesday, February 5, 1985, 44-year-old Helen Schartner left the County Line Lounge in Virginia Beach around 11:30 p.m. O'Dell left the same nightclub sometime between 11:30 p.m. and 11:45 p.m. The next day, Schartner's car was found in the parking lot of the County Line Lounge, and, around 3:00 p.m., her body was found in a muddy field across the highway from the club. Tire tracks consistent with the tires on O'Dell's car were found near the body. Schartner had been killed by manual strangulation, with a force sufficient to break bones in her neck and leave finger imprints. She also had eight separate wounds on her head consistent with blows from the barrel of a handgun. About 10 days earlier, a handgun with a barrel that could cause wounds like those found on Schartner's head had been seen in O'Dell's car. Seminal fluid was found in Schartner's vagina and anus. Enzyme tests on that fluid revealed that it was consistent with a mixture of O'Dell's and Schartner's bodily fluids. Spermatozoa also found in Schartner's genital swabs and genital scrapings were consistent with O'Dell's.

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Schartner's head wounds had bled extensively. Not more than two and a half hours after Schartner left the County Line Lounge, O'Dell entered a convenience store with blood on his face, hands, hair, and clothes. Around 7:00 a.m., O'Dell called his former girlfriend, Connie Craig, and told her he had vomited blood all over his clothes and that he wanted to talk to her before he left for Florida. He then slept all day at Craig's house.

The next day, Thursday, Craig read the local newspaper account of Schartner's murder, describing how she had last been seen at the County Line Lounge. Remembering that O'Dell customarily visited the County Line Lounge on Tuesday nights, Craig went to her garage and found the paper bag that O'Dell had told her he had left, containing several articles of bloody and muddy clothing. She brought the bloody clothes into the house and called the police.

O'Dell was arrested, and, despite the contrary story he had just told Craig, told the police that the blood on his clothes came from a nose bleed caused by being struck while attempting to stop a fight at another club on the night of February 5. Electrophoretic tests on the dried blood established that the blood on O'Dell's jacket and shirt had the same enzyme markers as Schartner's, a characteristic shared by only three out of a thousand people. O'Dell's blood did not have the same markers. Likewise, dried blood found in O'Dell's car proved consistent with Schartner's but not with O'Dell's. And, hairs found in O'Dell's car were also consistent with Schartner's, but not O'Dell's.

During his incarceration, O'Dell confessed to Steven Watson, a fellow inmate, that he had strangled Schartner after she refused to have sexual intercourse with him.

O'Dell was indicted for capital murder, abduction, rape, and sodomy. On his own motion, and after a court-appointed psychiatrist determined him competent, O'Dell quite ably defended himself pro se, with court-appointed attorney Paul Ray serving as standby counsel. O'Dell was tried, and, on September 10, 1986, the jury convicted him on all counts. The next day, the jury fixed his sentence for murder at death. The jury's recommendation of death was based on its finding that both of Virginia's statutory aggravating factors--future dangerousness and vileness--had been proven. J.A. at 2506. The trial judge adopted the jury's recommendation and sentenced O'Dell to death by electrocution for murder and to 40 years for rape and 40 years for sodomy. O'Dell appealed his sentence to the Supreme Court of Virginia, which affirmed the judgment of the Circuit Court. O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). The Virginia Supreme Court subsequently granted O'Dell's petition for rehearing in order to consider and reject a claim it had previously held to be procedurally barred, after which it again affirmed the conviction. O'Dell v. Commonwealth, Record No. 861219, slip op. (Va. April 1, 1988). The United States Supreme Court denied certiorari on October 3, 1988. O'Dell v. Virginia, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

O'Dell filed a petition for a writ of habeas corpus in the Circuit Court of Virginia Beach on June 1, 1989, and an amended petition on July 3, 1990, both of which were denied. J.A. at 278-79. O'Dell attempted to appeal the denial to the Virginia Supreme Court, but he erroneously filed an "Assignments of Error" with the Supreme Court instead of a "Petition for Appeal," as required by Virginia law. O'Dell attempted to correct the error, but by then the time to file had expired and so the Virginia Supreme Court dismissed his perfected Petition for Appeal as untimely. The United States Supreme Court again denied certiorari on December 2, 1991, with three Justices issuing a statement respecting the denial of certiorari. See O'Dell, 502 U.S. at 995, 112 S.Ct. at 618 (Blackmun, J., joined by Stevens and O'Connor, JJ.).

O'Dell then filed this federal habeas petition on July 23, 1992. The district court, Judge James R. Spencer, held a full evidentiary hearing on O'Dell's claim that new DNA evidence established that he was actually innocent. The court rejected that claim, along with numerous others, but vacated O'Dell's death sentence because he had not been allowed to rebut the prosecution's future dangerousness arguments with a showing that he would be ineligible for parole. In

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so doing, the court...

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