Bassette v. Thompson

• Decision Date: 16 November 1990
• Docket Number: No. 89-4010,89-4010
• Citation: 915 F.2d 932
• Parties: Herbert Russell BASSETTE, Petitioner-Appellant, v. Charles E. THOMPSON, Mary Sue Terry, Attorney General of Virginia, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 932

915 F.2d 932

Herbert Russell BASSETTE, Petitioner-Appellant, v. Charles E. THOMPSON, Mary Sue Terry, Attorney General of

Virginia, Respondents-Appellees.

No. 89-4010.

United States Court of Appeals, Fourth Circuit.

Argued May 9, 1990.

Decided Oct. 5, 1990.

Rehearing and Rehearing In Banc Denied Nov. 16, 1990.

William Howell Wright, Jr., argued, Hunton & Williams, Richmond, Va., for petitioner-appellant.

Linwood Theodore Wells, Jr., Assistant Attorney General, argued, Office of Atty. Gen., Richmond, Va. (Mary Sue Terry, Atty. Gen., Office of Atty. Gen., Richmond, Va., on brief), for respondents-appellees.

Before ERVIN, Chief Judge, and CHAPMAN and WILKINSON, Circuit Judges.

CHAPMAN, Circuit Judge:

Herbert Russell Bassette was convicted of capital murder by a jury on August 22, 1980, and was sentenced to death. He appealed his conviction without success to the Supreme Court of Virginia, see Bassette v. Commonwealth, 222 Va. 844, 284 S.E.2d 844 (1981). He was also unsuccessful with his petition for certiorari to the United States Supreme Court, Bassette v. Virginia, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982). He petitioned for habeas corpus in the Virginia state courts, and after four days of hearings and the taking of extensive testimony, the Circuit Court of Henrico County denied the petition in a lengthy opinion filed March 19, 1985. The Virginia Supreme Court denied his habeas corpus appeal on March 26, 1988.

On April 4, 1988, Bassette filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. In his petition he raised twelve grounds for relief. He successfully moved for the appointment of counsel and an amended petition was filed August 16, 1988, setting forth 28 grounds and incorporating the claims made in the pro se petition. Certain of the claims were restated and thereafter 36 claims were presented to the district court. By order entered November 29, 1988, the district court granted summary judgment for Warden Thompson on 32 of the claims and directed additional briefing and argument on the four remaining claims. By an order entered August 13, 1989, the district court dismissed the remaining claims. In its opinion, the district court found that almost all of the claims of appellant were being asserted for the first time in the federal petition, and that these claims had not been raised on direct appeal or in the Virginia habeas corpus proceeding. The district court concluded that the claims were not barred by state procedural default rules, and then addressed the merits of the claims and found against the appellant.

We find that under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), all of Bassette's claims are procedurally barred except his claims (1) that the district court should have conducted an evidentiary hearing, (2) that the district court did not independently examine the state record, and (3) that there was an abuse of discretion by the trial judge in refusing to allow Bassette to represent himself in the sentencing phase. We have considered these exceptions and find no merit in them. However, because the district court considered the merits of other claims, we have reviewed the merits of the other exceptions set forth in his brief, find no error, and conclude that the appellant received a constitutionally fair trial. Therefore, we affirm.

I

Bassette was convicted of murder during the commission of a robbery while armed with a deadly weapon. The victim was a 16-year-old night attendant at a Richmond, Virginia, gas station. His nude body was found November 24, 1979, in a ditch bordering a road in Henrico County. The body revealed six gunshot wounds. The prosecution presented the testimony of three individuals, who participated in the robbery, and identified Bassette as the person who fired the fatal shots as his young victim begged for mercy.

Bassette testified and denied committing the crime. He claimed that he was not with the three individuals on the night of the crime. His claim of alibi was supported by his girlfriend, who by the time of trial was his wife, and also by his girlfriend's mother. Bassette's niece, Joyce Ann Mason, also testified that Bassette, his girlfriend and her children had visited her grandmother's house on the night of the murder. Ms. Mason stated she remembered the date because she had noted the visit in a journal she was keeping for a class she was attending at J. Sergeant Reynolds Community College. She stated that the journal had been turned in to the teacher, but that she had retrieved it and verified the date before testifying. The first trial ended with a hung jury, and at the second trial, which resulted in a conviction, the prosecution presented the rebuttal testimony of Ms. Mason's college instructor, who testified that the assignment to keep a journal did not start until long after November 1979, and that she had not met Mason until April 1980.

At the second trial, the jury recommended a sentence of death. The trial judge considered the presentence report and on November 19, 1980, confirmed the jury's verdict and ordered Bassette to be executed.

II

The district court found that of the 36 claims presented by Bassette in his federal habeas corpus petition, 22 were being asserted for the first time and that they had not been raised by Bassette on either his direct appeal or his collateral habeas corpus proceeding in the Virginia state courts, and five of the claims were presented on direct appeal but not in the state habeas petition. Warden Thompson waived exhaustion of Bassette's state remedies and asserted that further proceedings in the state court would be fruitless and the federal proceedings would be expedited by his waiver of the exhaustion requirement. However, Thompson did not waive his position that the state procedural bar applied to the present federal habeas corpus petition. Bassette presents seven issues to us for review. Six of these claims involve the state trial, and only one has ever been presented to a Virginia court--the claim of abuse of discretion by the trial judge in refusing to allow appellant to represent himself before the sentencing jury. The seventh claim is that the district court did not conduct an evidentiary hearing and did not independently examine the state court record before denying appellant's petition.

The district court considered Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), and Teague v. Lane, supra, and concluded that there was not a clear and express statement of the state court that it had relied upon a procedural default by the petitioner, and that there was an issue in the present case as to whether the claims had been properly exhausted. The district court then proceeded to consider the merits of Bassette's petition and granted summary judgment against him.

We find that the district court read Harris v. Reed and Teague v. Lane too narrowly, and that five of the seven present claims are barred by the procedural default of Bassette in failing to present these claims on direct appeal to the Virginia Supreme Court or in his state collateral attack on his conviction.

Harris v. Reed involved a federal habeas corpus petition following a state conviction and held that the federal court may reach the federal questions on review unless the state court's opinion contains a plain statement that its decision rested upon adequate and independent state grounds, and that the state court must have actually relied on the procedural bar as an independent basis for its disposition of the case. The Court found that the state court's statement that most of the ineffective assistance of counsel allegations "could have been raised (on) direct appeal" was not sufficient to be a "plain statement" since it was not an explicit reliance on state court waiver as a ground for rejecting any aspect of the petitioner's claim. Harris v. Reed, 109 S.Ct. at 1044-45. It must not be ambiguous as to whether the state court has invoked a procedural default bar, and there must be a "plain statement" that its judgment rested on a procedural bar. Teague v. Lane was decided on the same day as Harris v. Reed. Both cases involved habeas petitions resulting from convictions in the state courts of Illinois. These appeals were obviously decided together because the court wanted to emphasize the slight difference in facts that resulted in a different holding. In Teague the petitioner had not raised his federal claim at trial or on direct appeal and this default prevented him from raising it in collateral proceedings under the Illinois Post-Conviction Act. The Supreme Court found that his federal claim was procedurally barred and then explained the difference between Harris and Teague:

Our application of the procedural default rule here is consistent with Harris v. Reed, 109 S.Ct. 1038[, 489] U.S. [255, 103 L.Ed.2d 308,] (1989), which holds that a "procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." (citations and internal quotations omitted). The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding. It is simply inapplicable in a case such as this one, where the claim was never presented to the state courts.

Teague, 109 S.Ct. at 1068-69.

Bassette did not raise five of his present claims on direct appeal or in his state habeas corpus proceeding. ^* Virginia law is clear that these five claims are barred because they are based upon "facts of which petitioner had knowledge at the time of the filing of any previous petition." The provisions of Sec. 8.01-654(B)(2), Code of Virginia, are clear: "No writ shall be granted on the...