Carrier v. Hutto

• Decision Date: 27 December 1983
• Docket Number: No. 83-6039,83-6039
• Citation: 724 F.2d 396
• Parties: Clifford W. CARRIER, Appellant, v. Terrell D. HUTTO, Director of the Virginia Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 396

724 F.2d 396

Clifford W. CARRIER, Appellant, v. Terrell D. HUTTO, Director of the Virginia Department of

Corrections, Appellee.

No. 83-6039.

United States Court of Appeals,

Fourth Circuit.

Argued May 12, 1983.

Decided Dec. 27, 1983.

Karen L. Morris, Third Year Law Student (William A. Reppy, Jr., Duke Law School, Durham, N.C., on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellee.

Before HALL and ERVIN, Circuit Judges, and WYZANSKI, ^* Senior District Judge.

ERVIN, Circuit Judge:

Clifford Carrier, a Virginia prisoner, appeals from the dismissal of his federal petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. His petition alleged that the state trial court violated due process by denying Carrier access to certain evidence in the district attorney's possession. The district court ruled that because Carrier failed to present this claim on direct appeal to the Virginia Supreme Court, he was barred from doing so in federal court absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Carrier asserted as Wainwright "cause" that the failure to take a state appeal was wholly the product of attorney error, to which the district court replied that because Carrier had not pressed a claim of ineffective assistance of counsel in state proceedings he had failed to meet the prerequisite for federal habeas relief of exhausting his state remedies. See 28 U.S.C. Sec. 2254(b) and (c). The court added that since Virginia recognized a "cause" exception to its rule barring state collateral relief where issues were not raised on direct appeal, Virginia should be given the first opportunity to decide whether Carrier had good cause for neglecting direct appeal.

We reverse and hold that under certain circumstances attorney error which is insufficient to make out a violation of the sixth amendment may nevertheless constitute "cause" under the Wainwright exception to procedural bar. We remand so that the district court may decide whether Carrier's articulation of attorney error satisfies the requirements set forth herein and whether Carrier has met the prejudice prong of the Wainwright exception.

I.

Clifford Carrier was tried and convicted of rape and abduction in Virginia. Prior to trial, Carrier's court-appointed counsel moved to discover all statements by the victim to police that specifically contained descriptions of her assailants, the assailants' vehicle, and the location of the alleged rape. The Commonwealth responded that such statements would be furnished to the trial judge for in camera inspection, and that the judge would decide which statements to give over to defense counsel. Upon examination the judge notified defense counsel that the statements bore "no evidence of an exculpatory nature." Immediately before trial, defense counsel moved the court to transmit copies of any statements made to police by the victim and by an identification witness. The court responded with another in camera inspection and then informed counsel that because the statements contained no exculpatory evidence, they would not be released. The judge then sealed the statements. Defense counsel formally excepted "for purposes of the record." After Carrier was convicted, counsel filed notice of appeal assigning seven errors, including the following:

5. Did the trial judge err by not permitting defendant's counsel to examine the written statements of the victim prior to trial, and during the course of the trial?

Counsel subsequently filed an appellate brief urging five grounds for reversal but inexplicably abandoning the claim that the court's denial of discovery violated due process. The Virginia Supreme Court refused to review Carrier's appeal, after which he filed, pro se, a state habeas corpus petition alleging that the withholding of the victim's statements to police describing her assailants was a denial of due process under the fourteenth amendment. The state moved to dismiss because of failure to pursue this contention on direct appeal. See Va.S.Ct. Rule 5:21; Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974), cert. denied, sub. nom., Parrigan v. Paderick, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). The motion was granted and the Virginia Supreme Court denied certiorari.

Carrier then filed pro se a petition for a writ of habeas corpus in the federal district court for the Eastern District of Virginia, asserting as grounds for relief the denial of due process. The state moved to dismiss, claiming that failure to raise the due process issue on direct appeal was a bar to collateral attack in federal court. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Anticipating that in amended pleadings Carrier might assert attorney error as the cause for omitting state appeal, the state also contended that Carrier had failed to exhaust state remedies with regard to ineffectiveness of counsel, arguing that in state court he could "allege ineffective assistance of counsel for failure ... to raise the issue ... on appeal."

In district court, the matter was referred to a magistrate, who recommended dismissal of the petition because of procedural default under Wainwright. The magistrate also suggested that Carrier had not exhausted state remedies and that the Virginia courts would still entertain a habeas petition to examine the due process question if petitioner would allege ineffectiveness of counsel as "cause" for the procedural default.

Carrier then filed a "Motion of Objection and Exception" to the magistrate's report. He argued that the failure to raise his due process claim on direct appeal "was not due to any fault of his" but was the result of "eneffective [sic] assistance of counsel."

The district court was unswayed by Carrier's motion and adopted the magistrate's recommendation, dismissing the petition. In a footnote to its opinion, the court said that the exhaustion requirement of 28 U.S.C. Sec. 2254 barred Carrier from asserting a claim of ineffective assistance of counsel, since Carrier had not raised that allegation in state proceedings. The court remarked that dismissal of the federal habeas claim due to failure to exhaust state remedies is "not necessarily a dismissal with prejudice," and that Carrier might well be able to establish "cause" for failing to appeal the error, but should do so in the first instance in a habeas proceeding in the Virginia courts.

II.

The crux of Carrier's federal habeas petition is that he was denied due process of law under the fourteenth amendment when the state trial court refused defense counsel's specific request for the victim's statements to police on the ground that those statements contained "no evidence of an exculpatory nature." Citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398-2399, 49 L.Ed.2d 342 (1976), Carrier urges that the standard which should have been employed by the court in delimiting discovery was whether the evidence specifically requested was "material ... to guilt," Brady, 373 U.S. at 87, 83 S.Ct. at 1197, not whether it was exculpatory. See also Chavis v. North Carolina, 637 F.2d 213, 223 (4th Cir.1980).

Although Carrier's lawyer lodged this Brady objection at trial, he did not appeal it. Under Virginia law, this meant that the issue was lost for purposes of direct and collateral review. ¹ What is more, in the face of a state contemporaneous objection rule, the failure to prosecute a constitutional claim to the state's highest court on direct appeal brings into play the case of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Wainwright, the Supreme Court held that in the presence of an adequate and independent state procedural ground for decision, federal review of constitutional claims would be barred on habeas, as on direct appeal, absent a showing of cause for noncompliance with the state procedural rule and also a showing of actual prejudice resulting from the alleged constitutional violation. ² The Court left open the question of what might be sufficient "cause" to excuse procedural default, and the precise issue to be resolved in this case is whether Carrier's assertion of "ineffective assistance of counsel" can make out Wainwright "cause." The district court held it could not, construing Carrier's contention as a claim under the sixth amendment for habeas relief which could not be entertained by the federal courts until state remedies had been exhausted. See 28 U.S.C. Sec. 2254. Since Carrier had advanced only his Brady claim before the state habeas court, the district court dismissed his habeas petition without prejudice pending the exhaustion of state remedies with regard to the claim of ineffective assistance of counsel. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The court opined that Carrier might "well be able to establish 'cause' for his default, but should do so in the first instance in the Virginia courts."

We view Carrier's arguments below differently from the district court. Specifically, we discern no claim by Carrier that he was deprived of his constitutional right to effective representation by counsel during the course of his trial. ³ At oral argument before this court, Carrier's newly-appointed appellate counsel expressly disavowed any contention that trial counsel failed the sixth amendment standard. Indeed, with the exception of the unexplained failure to appeal the Brady issue, Carrier's trial lawyer appears to have performed with diligence and skill.

We thus arrive at the nub of the case: Can a single act or omission by counsel, insufficient by itself to contravene the sixth amendment, satisfy the "cause" prong of the exception to preclusive procedural default discussed...