Beaver v. Thompson

• Decision Date: 22 August 1996
• Docket Number: No. 95-4003,95-4003
• Parties: Gregory Warren BEAVER, Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1186

93 F.3d 1186

Gregory Warren BEAVER, Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Respondent-Appellee.

No. 95-4003.

United States Court of Appeals Fourth Circuit.

Argued Sept. 27, 1995.

Decided Aug. 22, 1996.

ARGUED: Christopher Martin McMurray, Kirkpatrick & Lockhart, Washington, D.C., for Appellant. Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Susan M. Casey, Kirkpatrick & Lockhart, Washington, D.C., for Appellant. James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before WIDENER, HALL, and LUTTIG, Circuit Judges.

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

OPINION

WIDENER, Circuit Judge:

Gregory Warren Beaver appeals the district court's denial of a writ of habeas corpus for his claims of conflict of interest of one of his attorneys and also otherwise ineffective assistance of counsel which includes a claim of an invalid guilty plea. He also asserts that the district court erred in denying him an evidentiary hearing and that Virginia's capital murder statute is unconstitutional. We affirm.

I.

On April 12, 1985, Beaver shot and killed Trooper Leo Whitt of the Virginia State Police during a traffic stop on Interstate 95 in Prince George County. A hitchhiker riding in the car with Beaver testified that Trooper Whitt requested Beaver's license and registration. Beaver instructed the hitchhiker to look in the glove compartment for the documents and Trooper Whitt moved to the front of the car and appeared to write down the number of a license plate displayed in the front windshield. As the officer returned to the driver's side window, the hitchhiker informed Beaver that he could not find the license or registration. Beaver raised a gun and shot Trooper Whitt once and then, as the trooper struggled for his own gun, a second time, causing the officer to fall to the ground. Beaver drove away and continued north on Interstate 95 until he exited onto a side road. Beaver stopped at a fast food restaurant near Richmond to change the license tags. He followed the hitchhiker into the restaurant and went into the restroom. Pretending to place an order, the hitchhiker told a restaurant employee to call the police because the man he was with had shot a state trooper.

Beaver was charged and convicted of capital murder for the willful, deliberate, and premeditated killing of a law enforcement officer for the purpose of interfering with his official duties, and the use of a firearm in commission of a felony in violation of Va.Code §§ 18.2-31(f) and 53.1. He was sentenced to death for capital murder. The court appointed John Maclin, IV to represent Beaver. Maclin asked the court to appoint T.O. Rainey, III to assist him, he and Rainey having worked together in the defense of a capital case previously. In addition to his private law practice, Rainey served as a part-time assistant prosecutor in neighboring Dinwiddie County. ¹ The case came to trial on July 8, 1985 and a jury was selected. On July 9, 1985 Beaver changed his plea to guilty on both charges according to a written plea agreement. Following a sentencing hearing starting on July 9 and continuing on September 16, 1985, the trial court found beyond a reasonable doubt that there was "a probability that Beaver would commit criminal acts of violence that would constitute a continuance [sp] and serious threat to society." See Va.Code § 19.2-264.2. Maclin and Rainey represented Beaver on direct appeal to the Supreme Court of Virginia which affirmed his conviction and sentence, and the Supreme Court of the United States denied certiorari. Beaver v. Commonwealth, 232 Va. 521, 352 S.E.2d 342, cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987).

With the aid of different court-appointed counsel, Beaver filed a petition for a writ of habeas corpus in the Circuit Court of Prince George County. That court found that the record of the trial proceedings conclusively established that the plea was voluntarily and intelligently made with a full understanding of the consequences of the plea and also that habeas relief should be denied under the rule of Anderson v. Warden, 222 Va. 511, 281 S.E.2d 885 (1981). ² The court also found that the claim that the Commonwealth breached the plea agreement was barred because Beaver had not raised this issue at trial or on direct appeal. In all, the state court denied or dismissed ten of Beaver's twelve claims and scheduled an evidentiary hearing to address the remaining claims of ineffective assistance of counsel and conflict of interest. Following a two day evidentiary hearing on May 23, 1991 and September 11, 1991, the court adopted the factual findings as presented by the Commonwealth and denied these claims as well. Beaver v. Thompson, No. 88-13-H.C., Cir. Ct. of Prince George Co., Sept. 10, 1992. Beaver appealed to the Supreme Court of Virginia which affirmed, and the Supreme Court of the United States denied certiorari. Beaver v. Thompson, Record No. 921832 (Mar. 9, 1993), cert. denied, 510 U.S. 879, 114 S.Ct. 219, 126 L.Ed.2d 175 (1993). Having exhausted state remedies, Beaver filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia on March 3, 1994. ³ The district court denied Beaver's request for an evidentiary hearing, dismissed the habeas claims, and denied his motion for reconsideration. Beaver v. Thompson, C.A. No. 3:94CV149 (E.D.Va. Nov. 25, 1994; Jan. 13, 1995). Beaver then filed this appeal.

II.

Beaver raises the following issues on appeal: (1) he was deprived of his constitutional right to an attorney free from disqualifying conflict of interest, (2) his guilty plea was not knowingly and voluntarily made and resulted from ineffective assistance of counsel, (3) his counsel were ineffective in failing to investigate and present vital evidence about his background and in their handling of psychiatric evidence, (4) the district court erred in failing to hold an evidentiary hearing, and (5) the Virginia capital murder statute is unconstitutional. Our review of matters of law in the district court's decision is de novo.

Our decision here will review applicable questions under the law and standards as they existed or may exist without reference to the Anti-terrorism and Effective Death Penalty Act of 1996, P.L. 104-132, April 24, 1996. Our reason for adopting such a standard of review is that all provisions of that Act either under Title I, Habeas Corpus Reform or Chapter 154, Special Habeas Corpus Procedures in Capital Cases, which could have any effect on the case at hand are at least as favorable to the Commonwealth and less favorable to the prisoner than the existing law under which we will decide this case. Because Beaver takes the position that the Anti-terrorism Act should not be applied, we will give him the benefit of the doubt and, without deciding the question, assume that it does not for the purpose of this decision.

III.

We address first Beaver's claim that the district court erred in denying his request for an evidentiary hearing. We have held that a new evidentiary hearing should be held on a habeas petition only when the petitioner (1) alleges additional facts that, if true, would entitle him to relief, and (2) establishes any one of the six factors set out by the Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)(overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)), or one of the factors provided in 28 U.S.C. § 2254(d). ⁴ Poyner v. Murray, 964 F.2d 1404 (4th Cir.), cert. denied, 506 U.S. 958, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992). Keeney overruled the Townsend requirement for a hearing in a case (absent deliberate bypass) where the material facts were not adequately developed in the state court, and held that a federal habeas petitioner must show cause and prejudice to excuse failure to develop material facts in state court proceedings.

Even now Beaver does not spell out any right to a hearing under the factors mentioned in Townsend, 372 U.S. at 313-18, 83 S.Ct. at 757-60, or the factors mentioned in § 2254(d). Rather, he claims generally that the state habeas proceedings were not full and fair because "Beaver's habeas counsel were not permitted to depose [in pre-trial depositions] Beaver's trial counsel, especially Rainey;" and the state court "limited the testimony of two of Beaver's expert witnesses and did not permit at all the testimony of the expert on conflict of interest." Brief p. 49.

The record discloses that Beaver was permitted to file interrogatories to his trial attorneys in the state habeas proceedings. While he describes such interrogatories as "limited," any limitations which were placed upon them he does not disclose. Also, although Beaver now complains in a reply brief that he was not permitted to discover by deposition of Rainey the percentage of the criminal cases in the county handled by Rainey, an examination of the record does not disclose that he asked these questions of Rainey when Rainey testified in the state habeas proceeding. In all events, the record shows that at the time of the trial, Rainey's participation in the criminal courts of Dinwiddie County was very minimal, some 2-5%, other than brief writing on appeals.

We also note that Beaver in his brief does not identify by name of witness or content the expert witnesses' testimony he now complains was limited or not permitted, but we have nevertheless examined the testimony of Dewey G. Cornell, a forensic psychologist and Craig S. Cooley and David Boone, attorneys, who are all of the expert witnesses who testified on behalf of Beaver in the state habeas hearing. We have also examined the transcript of the state...