Briley v. Bass

Citation584 F. Supp. 807
Decision Date19 April 1984
Docket NumberCiv. A. No. 83-0289-R.
PartiesLinwood E. BRILEY v. Gary L. BASS, Warden.
CourtU.S. District Court — Eastern District of Virginia

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Deborah C. Wyatt, Charlottesville, Va., William H. Allen, William E. O'Brian, Jr., Timothy Hester, Washington, D.C., for plaintiff.

James E. Kulp, Jerry P. Slonaker, Richmond, Va., for defendant.

OPINION

WARRINER, District Judge.

Before the Court is a petition for a writ of habeas corpus of Linwood E. Briley. The petition was amended on 16 September 1983, and respondent filed a motion to dismiss on 26 September 1983. Petitioner filed a rebuttal on 11 October 1983 and on 18 October 1983, respondent filed a supplemental reply.

On 29 November 1983, this Court entered an order directing the Commonwealth to provide petitioner with a transcript of the proceeding of 31 August 1983. On 30 December 1983, the Court directed the parties to submit briefs on the issue of whether petitioner's claim (3) was exhausted and to stipulate the evidence which was before the trial court at the time it denied the motion for a change of venue and present such evidence for this Court's consideration. On 4 January 1984, the Court ordered the parties to submit supplemental briefs on the possible application of Carrier v. Hutto, 724 F.2d 396 (4th Cir.1983), to this case. The parties complied in a timely manner with the Court's orders of 30 December 1983 and 4 January 1984. On 23 January 1984, petitioner filed a supplemental memorandum in light of the transcript provided in the order of 29 November 1983. Respondent filed a reply on 3 February 1984. The motion to dismiss is now ripe for adjudication. The Court has jurisdiction under 28 U.S.C. § 2254.

Petitioner was convicted under Va.Code § 18.2-31(d) of capital murder for the willful, deliberate and premeditated killing of John Harvey Gallaher in the commission of robbery while armed with a deadly weapon. His punishment was fixed at death.

As the evidence adduced at trial showed, petitioner, his two brothers, and a friend, Duncan Meekins, decided to look for somebody to "mug" in the late evening of 14 September 1979. Carrying a sawed-off shotgun and a high-caliber rifle, the group parked near the Log Cabin, a southside Richmond restaurant and bar, and hid in the bushes behind the restaurant. They lay in wait for a chance at an easy victim, i.e., a drunk.

The victim, Richmond disc jockey John Harvey Gallaher, shortly left the Log Cabin by a rear door and walked over toward the bushes where the waiting gunmen were hiding. Petitioner, brandishing the rifle, accosted Gallaher, ordered him to lie down on the ground, and took his wallet and keys. Petitioner instructed Meekins to find Gallaher's car in the parking lot and return with it. This done, petitioner and Meekins forced the victim to lie face down in the rear of the car and the three drove away. Anthony and James Briley returned to the car in which the group had arrived at the Log Cabin. They rejoined petitioner and Meekins some time later.

Meekins and petitioner drove the victim to Mayo Island in the James River and parked on the grounds of a paper company there. They forced Gallaher from the car and, as Gallaher began to stand up, petitioner shot him with the rifle. About 15 to 20 minutes had elapsed since the assailants first accosted the deceased.

After killing Gallaher, the group took his car, left the murder scene, and drove around the city in Gallaher's car until the gas tank was nearly empty. They then stripped the car of readily removable parts and abandoned it.

I. Exhaustion

Absent a valid excuse, a prisoner must first exhaust his claims in State courts. 28 U.S.C. § 2254(b). The exhaustion requirement ensures that State courts have the first opportunity to review federal constitutional challenges to State convictions, thus preserving the role of State courts in protecting federally guaranteed rights. Preiser v. Rodriguez, 411 U.S. 475, 489-92, 93 S.Ct. 1827, 1836-37, 36 L.Ed.2d 439 (1973). Where exhausted and non-exhausted claims are presented in the same petition, the petition should be dismissed in its entirety to permit petitioner to exhaust the unexhausted claims and to present all claims together when they have been exhausted. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).

A claim has been exhausted when a habeas petitioner has "`fairly presented' to the State courts the `substance' of his federal habeas corpus claim." Anderson v. Harless, 459 U.S. 4, 16, 103 S.Ct. 276, 277, 74 L.Ed.2d 3, 7 (1982), quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 512, 513, 30 L.Ed.2d 438 (1971). A claim is not exhausted unless the specific federal constitutional argument was presented to the State courts. Id. 459 U.S. at 17-18, 103 S.Ct. at 277-78, 74 L.Ed.2d at 7-8.

In the typical case, the exhaustion requirement plays the important and effective role of reinforcing our federalist structure of government. Federal courts will not grant a writ of habeas corpus to one convicted by a State until the State, as an independent sovereign, has had the opportunity to consider the claim that the conviction is infected with fundamental error. State courts, as well as federal courts, have the responsibility of recognizing and enforcing the individual rights the Constitution confers upon criminal defendants.

The exhaustion doctrine works efficiently in the typical case where the punishment is incarceration. It is in the best interest of the prisoner, who believes his punishment to be invalidly inflicted, to first present all of his claims to the State courts. Unless he does, the ultimate disposition of his claim will be delayed, and the unjust punishment extended, when the federal court dismisses the action with instructions to return to the State courts to exhaust.

The capital murder case is different. When the punishment is death, delaying final disposition of collateral attacks upon the conviction delays enforcement of the sentence. Thus, it is in the best interest of the capital defendant to manipulate the legal processes available to him for as long as possible. In this context, the exhaustion doctrine is inefficient. It provides capital prisoners with yet another tool with which to delay and hinder the efficient resolution of collateral attacks upon their conviction. Indeed, for the past two to three decades we have witnessed an almost infinite number of collateral attacks in capital cases which have virtually judicially repealed the death sentence.

In this case, for instance, petitioner presented a claim of denial of material to which he was allegedly entitled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to the State courts. In this petition, he raises the Brady claim again, but adds to it new facts. Petitioner now argues that there exist transcripts of tape recordings and letters containing threats to the family of the star prosecution witness, Duncan Meekins, which should have been given to the defense under Brady. Petitioner alleges that he was previously unaware of this material.1

Under Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), and Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), that claim has not been exhausted. In Picard the Supreme Court noted that the "substance" of a claim must have been fairly presented to the State courts. Id. at 275-76, 92 S.Ct. at 512. In Anderson, all the facts relied on in the federal habeas had been presented to the State Court, but the legal argument made in federal court had not been made in the State habeas proceeding. The Supreme Court held that "since it appears that respondent is still free to present his ... claim to ... the State courts ... we conclude that he has not exhausted his available State-court remedies as required by 28 U.S.C. § 2254." Id. 459 U.S. at 18, 103 S.Ct. at 278, 74 L.Ed.2d at 8.

The instant petition presents the converse situation. He admits the Brady argument was made in State court, but he says the facts here presented were not there presented. By analogy to Anderson, petitioner might still present this new factual claim to the Virginia courts. This Court is faced with the possibility of having to dismiss this petition, thus playing into petitioner's hand by delaying the imposition of his punishment, or decide that the exhaustion requirement is unproductive in this context and refuse to apply it. Fortunately, the Court is spared this choice as the respondents have waived exhaustion of the claim. See Memorandum of Law filed 16 January 1984 at 7.

Respondent may waive exhaustion of a claim on behalf of the State. Sweezy v. Garrison, 694 F.2d 331 (4th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983). To be effective, waiver must be unconditional. Harding v. North Carolina, 683 F.2d 850, 852 (4th Cir.1982).

In Stamper v. Baskerville, 724 F.2d 1106 (4th Cir.1984), this Court was reversed for accepting the waiver while the case was before this Court on remand from the Fourth Circuit. On appeal a second time the Fourth Circuit found this Court powerless to accept the waiver because in so doing it failed to comply with the mandate to dismiss to permit exhaustion. Id. at 1107. The Court of Appeals also noted that it was "troubled by the nature of the waiver asserted by the State." Id. at 1108. The Court feared that the State waived exhaustion only after it "was confident that it would prevail on all claims asserted by the defendant—that is, after the district court's first ruling on the habeas petition." Id.

Neither of the problems the Fourth Circuit perceived in this Court's acceptance of waiver in Stamper exists in this case. This Court does not presently have before it a mandate from the appellate court. Nor had the Court made any...

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