Briley v. Booker
| Decision Date | 02 October 1984 |
| Docket Number | Civ. A. No. 84-0590-R. |
| Parties | Linwood E. BRILEY v. E.L. BOOKER, Warden. |
| Court | U.S. District Court — Eastern District of Virginia |
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William H. Allen, William E. O'Brian, Jr., Timothy C. Hester, Covington & Burling, Washington, D.C., Deborah C. Wyatt, Charlottesville, Va., for plaintiff.
James E. Kulp, Sr. Asst. Atty. Gen., Richmond, Va., for defendant.
On 21 September 1984 petitioner, by counsel, submitted his motion for a stay of execution and a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. It was filed on 24 September in forma pauperis. In view of the impending execution date the Court entered an order establishing an expedited briefing schedule on the date of submission.1 Respondents submitted their reply in opposition to petitioner's motion for a stay of execution on 25 September. On 26 September respondents submitted a motion to dismiss and a motion for summary judgment. Petitioner's reply memorandum in support of the motion for a stay of execution was filed on 27 September and petitioner's reply to respondents' motion to dismiss and motion for summary judgment was submitted on 28 September. These motions, all filed in accordance with the briefing schedule, are ripe for consideration. The Court has jurisdiction pursuant to 28 U.S.C. § 2254.
Petitioner attacks a judgment of the Circuit Court of the City of Richmond dated 21 February 1980 wherein he was convicted of capital murder by a jury and was sentenced to death. Petitioner's conviction and death sentence were affirmed by the Virginia Supreme Court on 26 November 1980. Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980). The United States Supreme Court denied certiorari on 26 May 1981. 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400. Petitioner filed a petition for writ of habeas corpus in the Circuit Court for the City of Richmond on 15 October 1981 which was denied on 18 December 1981. The Virginia Supreme Court denied the petition for appeal from the denial of the State habeas on 5 October 1982 and denied a petition for a rehearing on 3 December 1982. The United States Supreme Court denied certiorari on 18 April 1983. 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 367.
Petitioner filed a federal petition for writ of habeas corpus in this Court on 12 May 1983. After an evidentiary hearing on 31 August 1983 and the filing of an amended petition on 16 September 1983, the petition was denied on 19 April 1984. Briley v. Bass, 584 F.Supp. 807 (E.D.Va.1984). Petitioner noted his appeal from this Court's judgment on 27 April 1984 and this Court issued a certificate of probable cause on 29 April. On 7 August the United States Court of Appeals for the Fourth Circuit heard oral argument on petitioner's appeal and shortly thereafter issued a stay of petitioner's execution. The Court of Appeals affirmed the judgment of this Court denying the petition for a writ of habeas corpus on 23 August 1984. Briley v. Bass, 742 F.2d 155 (4th Cir.1984). A motion for rehearing, with suggestion of rehearing en banc, was filed with the Court of Appeals on 6 September. This motion was denied by order entered on 26 September. Petitioner has filed a petition for a writ of certiorari with the United States Supreme Court with respect to the affirmation by the Court of Appeals. The petition for a writ of certiorari is pending.
On 24 August petitioner filed a second habeas corpus petition in the Supreme Court of Virginia in which he raised as grounds for relief the claims which are now pending before this Court. The State habeas corpus petition was dismissed by the Virginia Supreme Court as being procedurally barred on 7 September 1984. On 10 September petitioner's date of execution was re-set by the Circuit Court for the City of Richmond for 12 October 1984.
On 21 September, as noted, this petition was submitted.
In their response of 26 September, respondents argue and ask for dismissal on the ground that petitioner has abused the writ of habeas corpus as contemplated by Rule 9(b) of Rules Governing 28 U.S.C. § 2254. The language of Rule 9(b) of the Rules Governing § 2254 is as follows:
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Petitioner had filed his original federal habeas corpus petition with this Court on 12 May 1983 and had submitted an amended petition on 16 September. This Court entered a judgment on the merits denying the petition as amended on 19 April 1984. In the present habeas corpus proceeding petitioner raises two issues based on case law and research which he claims were first "developed" in the fall of 1983, after he had filed his original federal habeas petition with this Court.
The respondents have properly raised a Rule 9(b) argument and pursuant to Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983), the petitioner bears the burden of showing by a preponderance of the evidence that he has not abused the writ. Petitioner argues that he should not be expected to have raised these new issues in his original federal habeas petition because these claims had not previously been raised in his State habeas proceeding or on direct appeal and, hence, were not exhausted at the time he filed his federal petition in May 1983. Citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), he argues that only exhausted claims could have been presented to this Court. Petitioner further argues that it was not until the fall of 1983 that both case law and social science research provided petitioner with a "reasonable basis" on which to advance these claims. See Petitioner's Memorandum of Law in Support of the Petition for Writ of Habeas Corpus at 5, fn. 2 hereinafter referred to as Petitioner's Memorandum.
Petitioner's first new substantive claim is based on his allegation that he was denied a fair trial because of Virginia's jury selection procedures. Petitioner relies on the Supreme Court's explicit reservation on this issue in Witherspoon v. Illinois, 391 U.S. 510, 520 n. 18, 88 S.Ct. 1770, 1776 n. 18, 20 L.Ed.2d 776 (1968); yet he asserts that the social science and case law which would give him a reasonable basis to advance his claims were not available to him until September 1983.
In Hutchins v. Woodard, 730 F.2d 953, 957 (4th Cir.1984), Judge Murnaghan observed that the sociological data upon which Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984), rev'd, 742 F.2d 129 (4th Cir.1984) and Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), were based was available to the legal profession no later than September 1983 as part of the public record in the Keeten consolidated cases. The Hutchins court noted that the Grigsby opinion had been issued on 5 August 1983 therefore "the existence of the contention and the fact that it had secured the support of one federal district judge were matters of which Hutchins, through his counsel, was clearly chargeable with knowledge." 730 F.2d at 957.
The petitioner in this case relies on the same issue presented in Hutchins and thus must be charged with the same knowledge. When petitioner filed his amended petition on 16 September 1983 he was on notice that Grigsby had been decided and, indeed, petitioner referred to the Grigsby opinion in that habeas corpus proceeding. See Petitioner's Second Response in Opposition to Motion to Dismiss, at p. 12, filed on 10 October 1983.
Concerning plaintiff's second substantive claim, the alleged discriminatory application of the Virginia death penalty, petitioner admits that he was aware in October of 1983 of the Gross and Mauro study on which he relies to support his claim. Petitioner's Memorandum at 61. The Gross and Mauro study, however, broke no new ground. A similar argument was presented in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), over a year before petitioner's trial in February 1980. Petitioner had all the relevant information necessary to present these claims by his own admission as early as October 1983. He argues, however, that they could not properly be presented in his federal habeas claim since they had not then been exhausted in a State habeas proceeding.
In Jones v. Estelle the Fifth Circuit observed that while petitioner may have an excuse in a given case for an omission, "that the omitted claim was not then exhausted is alone not enough." 722 F.2d at 169. In Rose v. Lundy, 455 U.S. 509, 539, 102 S.Ct. 1198, 1214, 71 L.Ed.2d 379 (1982) the Supreme Court clarified the proposition that an assertion of unexhausted claims in conjunction with exhausted claims in a single petition necessitates dismissal of the "mixed" petition. Dismissal and alternatives to dismissal were spelled out. Rose v. Lundy would have little meaning if petitioner could, with impunity, circumvent its holding by merely withholding his unexhausted claims.2
Petitioner's first federal petition for a writ of habeas corpus was not denied by this Court until April of 1984, over six months after he admits he possessed knowledge sufficient to present these claims. Petitioner's argument that they could not be presented to the federal forum because unexhausted is unconvincing in light of the fact that the State in that proceeding waived exhaustion as to petitioner's claim that he was denied necessary Brady material. See Briley v. Bass, 584 F.Supp. 807, 813-814 (E.D.Va.1984). Further, at no time prior to the Fourth Circuit's decision on 7 August 1984 affirming this Court did petitioner act to exhaust his State court remedies concerning the claims he now raises. Petitioner's...
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