Barnes v. Thompson

• Citation: 58 F.3d 971
• Decision Date: 10 August 1995
• Docket Number: 94-4002,Nos. 94-4001,s. 94-4001
• Parties: Herman Charles BARNES, Petitioner-Appellee, v. Charles E. THOMPSON, Warden, Respondent-Appellant. Herman Charles BARNES, Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 971

58 F.3d 971

Herman Charles BARNES, Petitioner-Appellee, v. Charles E. THOMPSON, Warden, Respondent-Appellant.

Herman Charles BARNES, Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Respondent-Appellee.

Nos. 94-4001, 94-4002.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1994.

Decided June 29, 1995.

As Amended Aug. 10, 1995.

ARGUED: Eugene Paul Murphy, Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, for appellant. Benjamin Sorrells Boyd, Piper & Marbury, Washington, DC, for appellee. ON BRIEF: James S. Gilmore, III, Atty. Gen. of Virginia, Office of the Atty. Gen., Richmond, VA, for appellant. Donald R. Lee, Jr., Virginia Capital Representation Resource Center, Richmond, VA, for appellee.

Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.

Reversed in part and affirmed in part by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge WILLIAMS joined. Judge MURNAGHAN wrote an opinion concurring in the judgment.

OPINION

LUTTIG, Circuit Judge:

The United States District Court for the Eastern District of Virginia vacated the death sentence of habeas corpus petitioner Herman Barnes, holding that the Commonwealth withheld exculpatory evidence in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and that petitioner had shown cause for his failure to present timely his exculpatory-evidence claim in the courts of the Commonwealth of Virginia. Because the record clearly supports the Virginia Supreme Court's determination that the information upon which the exculpatory-evidence claim was predicated was either known or reasonably available to petitioner, we reverse the district court's judgment granting the writ of habeas corpus.

I.

Barnes planned to rob Bon's Supermarket with the help of an accomplice, James Corey, on June 27, 1985. At approximately 10 p.m., Barnes approached Ricky Adams, a supermarket employee who was sweeping the parking lot, and pushed a pistol in his side. Using Adams as a shield, Barnes entered the store. Clyde Jenkins, the store's seventy-three-year-old owner, engaged Barnes in a struggle at the front of the store and Barnes shot Jenkins twice. Another store employee, Mohammed Afifi, came from the back of the store and jumped on Barnes. Barnes shook Afifi off, shot and killed him. Barnes then turned and pointed the gun at Adams. At that moment, Jenkins stirred and attempted to rise from the floor. Barnes shot Jenkins a third time and fled. Although Jenkins survived two weeks in the hospital, he too ultimately died from the gunshot wounds.

A handgun belonging to Jenkins was found under or near him when the police arrived. It had not been fired. Barnes has never asserted, nor does he today, that he saw this gun.

Barnes was tried in a bench trial in July 1986 in the Circuit Court for the City of Hampton. At trial, the victim's gun was admitted into evidence. The exact location where the police found the gun was never drawn into question and there was no testimony as to the location of the gun. The court convicted Barnes on five counts, including capital murder. In September of 1986, upon finding beyond a reasonable doubt that Barnes' "conduct in committing the offense was outrageously and wantonly vile ... in that it did involve an aggravated battery to the victim," the court sentenced Barnes to death. See J.A. at 124; Va.Code Ann. Sec. 19.2-264.2. The Virginia Supreme Court affirmed his convictions and sentence on September 4, 1987, Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196 (1987), and the United States Supreme Court thereafter denied certiorari, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988).

In October 1988, Barnes filed a petition for writ of habeas corpus in the Circuit Court in Hampton, raising numerous challenges to his convictions and sentence. The Circuit Court dismissed the petition, J.A. at 146-47, and the Virginia Supreme Court refused the petition for appeal, J.A. at 178. The United States Supreme Court again denied certiorari. Barnes v. Thompson, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766 (1990).

On November 19, 1990, Barnes filed a habeas petition in federal court. He raised the same issues he had raised in the state petition and, in addition, claimed for the first time that the Commonwealth's failure to disclose the exact location of the victim's gun violated his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), rendering his conviction and death sentence invalid. In June 1991, petitioner moved for, and was granted, a voluntary dismissal of his petition.

Barnes then filed a second state habeas petition in the Virginia Supreme Court, raising the exculpatory-evidence claims. J.A. at 179-204. The state court dismissed the petition "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 of any previous petition. Code Sec. 8.01-654(B)(2)." J.A. at 213.

In February 1992, Barnes filed a second federal habeas petition. In a memorandum opinion dated July 14, 1992, the district court dismissed seven of the ten assignments of error, but directed that an evidentiary hearing be conducted on Barnes' claims that the Commonwealth's failure to disclose the precise location of the gun violated Barnes' due process rights, that the death penalty was improperly imposed if the victim was armed, and that Barnes was denied effective assistance of counsel. J.A. at 294-332.

On January 18, 1994, following a two-day hearing, the district court held that the Commonwealth had violated Barnes' due process rights by withholding the gun's precise location and that the suppression of this evidence, although not sufficient to undermine confidence in Barnes' capital-murder conviction, was sufficiently material that the death sentence had to be vacated. Specifically, the court concluded that if the petitioner had had the undisclosed information for use during the penalty phase of his capital trial, the sentencing court might not have found that Barnes committed an aggravated battery, and thus might not have found the "vileness" aggravating factor. ¹ The district court also found that Barnes was not denied effective assistance of counsel. J.A. at 673-96.

II.

The Commonwealth argues on appeal that the district court erred in finding that Barnes was not procedurally barred from raising the Bagley claim in his federal habeas petition, given that he defaulted this claim pursuant to Virginia Code section 8.01-654(B)(2).

Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and succeeding cases, if a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, he is barred from raising those claims on federal collateral review unless he can show cause for the default and prejudice resulting therefrom. Id. at 87-91, 97 S.Ct. at 2506-09; Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). ² The district court properly recognized that the Supreme Court of Virginia "explicitly relied upon [the] procedural bar" of Virginia Code section 8.01-654(B)(2) to dismiss the claim. J.A. at 692. The court held, however, that Barnes showed both cause and prejudice for his failure to raise the claim. In both of these determinations, we believe the district court erred.

A.

Under our precedents, inherent in the state court's determination that Barnes' Bagley claim was procedurally barred under section 8.01-654(B)(2) is a finding that no external factor existed to excuse Barnes' failure to present this claim in his first state habeas petition. See Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988). That is, the section 8.01-654(B)(2) default determination by the Commonwealth's highest court reflects a finding that "all of the facts on which the current petition was based were either known or available to the petitioner." Waye v. Murray, 884 F.2d 765, 766 (4th Cir.), cert. denied, 492 U.S. 936, 110 S.Ct. 29, 106 L.Ed.2d 634 (1989). This factual finding is entitled to a presumption of correctness on federal habeas review, Clanton, 845 F.2d at 1241; Waye, 884 F.2d at 766 (section 8.01-654(B)(2) decision is "entitled to presumptive validity under 28 U.S.C Sec. 2254(d)"), ³ and may be rebutted only if the finding is "not fairly supported by the record," 28 U.S.C. Sec. 2254(d)(8). See also Stockton v. Murray, 41 F.3d 920, 924-25 (4th Cir.1994). In reaching its determination that petitioner had shown cause to excuse his failure to raise timely the Bagley claim, the district court undertook its own cause inquiry de novo, rather than address whether the record supported the Virginia court's factual determination that no cause existed for the delay in presenting this claim. Indeed, the district court never mentioned the presumptive validity of the state court's finding that the facts underlying Barnes' claim were either known or available to Barnes before he filed his first state habeas petition. Had the district court undertaken the proper inquiry, according the state court findings the required deference, it would have been apparent that the record fully supports the Virginia Supreme Court's conclusion.

Assuming arguendo that the location of the gun was material, the governing question for the state court was whether Barnes could have obtained the information through "reasonable and diligent investigation." McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). "The question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first...