Breard v. Pruett, 96-25

• Citation: 134 F.3d 615
• Decision Date: 20 January 1998
• Docket Number: No. 96-25,96-25
• Parties: Angel Francisco BREARD, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center, Respondent-Appellee. The Human Rights Committee of the American Branch of the International Law Association, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 615

134 F.3d 615

Angel Francisco BREARD, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center Respondent-Appellee The Human Rights Committee of the American Branch of the International Law Association, Amicus Curiae.

No. 96-25.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 1, 1997.

Decided Jan. 20, 1998.

ARGUED: William Gray Broaddus, McGuire, Woods, Battle & Boothe, L.L.P., Richmond, VA, for Appellant. Donald Richard Curry, Senior Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellee. ON BRIEF: Alexander H. Slaughter, Dorothy C. Young, McGuire, Woods, Battle & Boothe, L.L.P., Richmond, VA; Michele J. Brace, Virginia Capital Representation Resource Center, Richmond, VA, for Appellant. Jeffrey L. Bleich, San Francisco, CA, for Amicus Curiae.

Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge WILLIAMS joined. Senior Judge BUTZNER wrote a concurring opinion.

OPINION

HAMILTON, Circuit Judge:

Following a jury trial in the Circuit Court for Arlington County, Virginia, Angel Francisco Breard, a citizen of both Argentina and Paraguay, was convicted and sentenced to death for the murder of Ruth Dickie. He now appeals the district court's denial of his petition for writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.

I

In February 1992, Ruth Dickie resided alone at 4410 North Fourth Road, Apartment 3, in Arlington County, Virginia. At about 10:30 or 10:45 p.m. on February 17, 1992, Ann Isch, who lived in an apartment directly below Dickie's, heard Dickie and a man arguing loudly in the hall. According to Isch, the arguing continued as she heard Dickie and the man enter Dickie's apartment. Almost immediately thereafter, Isch called Joseph King, the maintenance person for the apartment complex. Upon arriving at Dickie's apartment, King knocked on the door and heard a noise that sounded like someone was being dragged across the floor. After receiving no response to his knocking, King called the police.

When the police arrived, they entered Dickie's apartment with a master key that King provided. Upon entering the apartment, the police found Dickie lying on the floor. She was on her back, naked from the waist down, and her legs were spread. She was bleeding and did not appear to be breathing. The police observed body fluid on Dickie's pubic hair and on her inner thigh. Hairs were found clutched in her bloodstained hands and on her left leg. Dickie's underpants had been torn from her body. A telephone receiver located near her head was covered with blood.

An autopsy revealed that Dickie had sustained five stab wounds to the neck; two of which would have caused her death. Foreign hairs found on Dickie's body were determined to be identical in all microscopic characteristics to hair samples taken from Breard. Hairs found clutched in Dickie's hands were Caucasian hairs microscopically similar to Dickie's own head hair and bore evidence that they had been pulled from her head by the roots. Semen found on Dickie's pubic hair matched Breard's enzyme typing in all respects, and his DNA profile matched the DNA profile of the semen found on Dickie's body.

Breard was indicted on charges of attempted rape and capital murder. Following a jury trial, he was convicted of both charges. The jury fixed Breard's punishment for the attempted rape at ten years' imprisonment and a $100,000 fine. In the bifurcated proceeding, the jury heard evidence in aggravation and mitigation of the capital murder charge. Based upon findings of Breard's future dangerousness and the vileness of the crime, the jury fixed Breard's sentence at death. The trial court sentenced Breard in accordance with the jury's verdicts.

Breard appealed his convictions and sentences to the Supreme Court of Virginia, and that court affirmed. See Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994). On October 31, 1994, the United States Supreme Court denied Breard's petition for a writ of certiorari. See Breard v. Virginia, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994).

On May 1, 1995, Breard sought state collateral relief in the Circuit Court for Arlington County by filing a petition for writ of habeas corpus. On June 29, 1995, the circuit court dismissed the petition. On January 17, 1996, the Supreme Court of Virginia refused Breard's petition for appeal.

Breard then sought federal collateral relief in the United States District Court for the Eastern District of Virginia by filing a petition for writ of habeas corpus on August 30, 1996. On November 27, 1996, the district court denied relief. See Breard v. Netherland, 949 F.Supp. 1255 (E.D.Va.1996). On December 24, 1996, Breard filed a timely notice of appeal. On April 7, 1997, the district court granted Breard's application for a certificate of appealability as to all issues raised by Breard in his application. See 28 U.S.C. § 2253; Fed. R.App. P. 22.

II

A

The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), amended, among other things, 28 U.S.C. § 2244 and §§ 2253-2255, which are parts of the Chapter 153 provisions that govern all habeas proceedings in federal courts. The AEDPA, which became effective on April 24, 1996, also created a new Chapter 154, applicable to habeas proceedings against a state in capital cases. The new Chapter 154 applies, however, only if a state "opts in" by establishing certain mechanisms for the appointment and compensation of competent counsel. In Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that § 107(c) of the AEDPA, which explicitly made new Chapter 154 applicable to cases pending on the effective date of the AEDPA, created a "negative implication ... that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective." Id. at ----, 117 S.Ct. at 2068. Thus, under Lindh, if a habeas petition was filed before April 24, 1996, the pre-AEDPA habeas standards apply. See Howard v. Moore, 131 F.3d 399, 403-04 (4th Cir.1997) (en banc ) ("Howard filed his habeas petition in the district court prior to April 26, 1996, the effective date of the AEDPA. We, therefore, review Howard's claims under pre-AEDPA law." (footnote omitted)). For habeas petitions filed after April 24, 1996, then, the Chapter 153 provisions apply, see Murphy v. Netherland, 116 F.3d 97, 99-100 & n. 1 (4th Cir.1997) (applying amended § 2253 in case where state prisoner filed federal habeas petition after the effective date of the AEDPA), and the Chapter 154 provisions apply if the state satisfies the "opt-in" provisions.

Breard filed his federal habeas petition on August 30, 1996. Accordingly, the Chapter 153 provisions apply. See Howard, 131 F.3d 399, 403-04. With respect to the Chapter 154 provisions, the district court held that they did not apply because the Commonwealth of Virginia did not satisfy the "opt-in" provisions of the AEDPA. See Breard v. Netherland, 949 F.Supp. at 1262. Because the Commonwealth of Virginia has not appealed this ruling and the record is not developed on this point, we decline to address whether the Commonwealth of Virginia's mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel satisfies the "opt-in" provisions of the AEDPA. Cf. Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.) (declining to decide whether the procedures established by the Commonwealth of Virginia for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel satisfy the "opt-in" requirements, which would render those provisions applicable to indigent Virginia prisoners seeking federal habeas relief from capital sentences if an initial state habeas petition was filed after July 1, 1992), cert. denied, --- U.S. ----, 117 S.Ct. 503, 136 L.Ed.2d 395 (1996). However, we are confident that the "opt-in" provisions are of no help to Breard.

B

Initially, Breard contends that his convictions and sentences should be vacated because, at the time of his arrest, the Arlington County authorities failed to notify him that, as a foreign national, he had the right to contact the Consulate of Argentina or the Consulate of Paraguay pursuant to the Vienna Convention on Consular Relations, see 21 U.S.T. 77. The Commonwealth of Virginia argues that Breard did not raise his Vienna Convention claim in state court and thus failed to exhaust available state remedies. Furthermore, because Virginia law would now bar this claim, the Commonwealth of Virginia argues that Breard has procedurally defaulted this claim for purposes of federal habeas review. The district court held that, because Breard had never raised this claim in state court, the claim was procedurally defaulted and that Breard failed to establish cause to excuse the default. See Breard v. Netherland, 949 F.Supp. at 1263. Breard's failure to raise this issue in state court brings into play the principles of exhaustion and procedural default.

In the interest of giving the state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing, a state prisoner must exhaust all available state remedies before he can apply for federal habeas relief. See Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997); see also 28 U.S.C. § 2254(b). To exhaust state remedies, a habeas petitioner must fairly present the substance of his claim to the state's highest court. See Matthews, 105 F.3d at 911. The exhaustion requirement is not satisfied if the petitioner presents new legal theories or factual claims for the first time in his federal habeas petition. See id. The burden of proving that a claim is exhausted lies with the habeas...