Cartera v. Mitchell, Civ. A. No. 82-0885-AM.

• Decision Date: 28 December 1982
• Docket Number: Civ. A. No. 82-0885-AM.
• Parties: Harold William CARTERA, Petitioner, v. James P. MITCHELL, et al., Respondents.
• Court: U.S. District Court — Eastern District of Virginia

553 F. Supp. 866

Harold William CARTERA, Petitioner, v. James P. MITCHELL, et al., Respondents.

Civ. A. No. 82-0885-AM.

United States District Court, E.D. Virginia, Alexandria Division.

December 28, 1982.

Harold William Cartera, petitioner, pro se.

Jerry P. Slonaker, Asst. Atty. Gen., Richmond, Va., for respondents.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter comes before the court on respondent's motion to dismiss petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254. For reasons given below, respondents' motion is granted.

I. FACTUAL BACKGROUND

The events relevant to the present action began November 8, 1973, when Fairfax County, Virginia, Police arrested petitioner for alleged rape and sodomy by force of two teenage girls. On June 14, 1974, a jury sitting in the Fairfax County Circuit Court, Judge James C. Cacheris presiding, convicted petitioner of two counts of rape and two counts of sodomy by force. On November 22, 1978, the Virginia Supreme Court reversed that conviction. See Cartera v. Virginia, 219 Va. 516, 248 S.E.2d 784, (Va.Sup. Ct.1978).

On February 16, 1979, a second jury convicted petitioner on retrial of two counts of rape and two counts of sodomy by force. The jury sentenced petitioner to life imprisonment on each of the rape convictions and 3 years imprisonment on each of the sodomy convictions. On May 15, 1979, the Fairfax County Circuit Court entered judgment sentencing petitioner to two consecutive life sentences, and ordered that the 3-year sentences run concurrently with the life sentences.

On May 22, 1979, petitioner, through court-appointed counsel, entered a Notice of Appeal to the Supreme Court of Virginia. Petitioner's court-appointed counsel presented five assignments of error:

(i) the trial judge improperly instructed the jury on the weight to be given circumstantial evidence;

(ii) the trial judge improperly instructed the jury on the length of a term of "life imprisonment";

(iii) the trial judge improperly admitted certain expert medical testimony;

(iv) the trial judge erred in refusing to appoint a urologist to testify on plaintiff's behalf; and

(v) the trial judge erred in refusing to suppress the victims' photographic and in-court identification.

Petitioner himself presented, pro se, twenty additional assignments of error. These additional assignments of error were included in his court-appointed counsel's petition for appeal, but were not briefed. The petition for appeal was filed with the Supreme Court of Virginia on August 15, 1979. The Supreme Court of Virginia denied petitioner's appeal and affirmed his convictions on March 12, 1980, finding no reversible error. On October 6, 1980, the United States Supreme Court denied petitioner's application for a writ of certiorari, 449 U.S. 880, 101 S.Ct. 230, 66 L.Ed.2d 104. Petitioner did not bring a state petition for habeas corpus.

On September 28, 1982, petitioner filed this petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. Petitioner attacks his state conviction on the following grounds:

(a) The trial judge erred in refusing to recuse himself on motion of the petitioner (b) Petitioner was denied his right to represent himself;

(c) The trial judge erred in refusing to appoint a urologist to supply vital evidence to the defense;

(d) The trial judge erred in denying petitioner's motion for production of reports of laboratory analysis and for independent comparison testing;

(e) The trial judge erred by omitting the chief medical examiner's report from the evidence presented at trial, because it was favorable to the petitioner, and defense counsel were ineffective for not asserting this issue;

(f) The prosecution violated discovery requirements, because the defense was not informed of the names of two rebuttal witnesses and a "business sheet of the Reston Gulf Service Station", all of which was used to rebut petitioner's alibi defense.

(g) The victims were shown a suggestive array of photographs of the petitioner without the petitioner or his counsel being notified or present at the photographic identification, and the photographic procedure was used when a lineup was an available alternative;

(h) Defense counsel were ineffective because the court-appointed attorneys refused to object to improper evidence introduced by the prosecutor, when such evidence had no probative value;

(i) The court erred in permitting Dr. William Enos, a pathologist called as an expert witness on behalf of the prosecution, to testify that it was within reasonable medical probability that a penis could enter the vagina without trauma and without ejaculation, because this either required no expert testimony or required expertise of a different nature than that of Dr. Enos;

(j) The prosecutor questioned petitioner's former wife in the presence of the jury as to whether petitioner had ever raped her;

(k) The prosecutor commented on the age of the victims and their family circumstances, and it was ineffective assistance of counsel for petitioner's attorneys to fail to object to such comments;

(l) Insufficiency of the evidence to establish rape of Ms. Janson, because she testified that she was a virgin prior to the rape yet the prosecution's evidence failed to show trauma to her hymen or vaginal area and there was no medical evidence of penetration;

(m) Insufficiency of the evidence to establish rape of Ms. MacDonald, because there was no medical evidence of injury to the vaginal area or trauma to her hymen, and Ms. MacDonald testified that she was a virgin prior to the rape;

(n) Insufficiency of the evidence of sodomy, because there was no medical evidence of those alleged crimes and the victims had told the pathologist that "no abnormal sex acts" had been perpetrated upon them;

(o) The prosecutor erred by calling the petitioner a liar in his closing argument; and

(p) On the basis of all the foregoing errors, the petitioner's conviction should have been set aside by the state trial court; and, additionally, some alibi witnesses were not available to testify at trial because petitioner could not locate them.

Of the claims presented in this petition, petitioner's court-appointed counsel fully briefed and presented to the Supreme Court of Virginia claims (c), (g) and (i). Claims (a), (b), (d), (e), (f), (j), (k), (l), (m), (n), (o), and (p) were essentially presented to the Supreme Court of Virginia in petitioner's pro se assignments of error, though not properly briefed. Claim (h), relating solely to the effectiveness of counsel, was not previously presented or briefed to the Supreme Court of Virginia.

II. LEGAL ANALYSIS

Respondents' motion to dismiss is based upon the contention that petitioner has not satisfied the exhaustion requirements of 28 U.S.C. § 2254(b), which provides that

An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that these is either an absence of available State Corrective Process or the existence of circumstances rendering such processes ineffective to protect the rights of the prisoner.

Specifically, respondents contend that petitioner presents a "mixed" petition containing both exhausted and unexhausted claims. The United States Supreme Court recently stated that "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).

The basis of respondents' claim that petitioner presents a "mixed" petition of exhausted and unexhausted claims is twofold: (i) respondents assert that the claims the petitioner now presents which were previously presented to the Supreme Court of Virginia in petitioner's pro se assignments of error, and not further briefed by counsel, were not considered by the Supreme Court of Virginia in reaching its March 12, 1980 decision and therefore remain unexhausted; and (ii) petitioner's claim (h), relating to inadequate representation of counsel, was not presented to the Supreme Court of Virginia, either in petitioner's pro se assignments of error or his counsel's fully briefed assignments of error, and that claim is therefore unexhausted.

The doctrine of exhaustion of state remedies is satisfied if the same claim raised in a federal habeas proceeding has been presented previously before the highest state court, either on direct appeal or in a post-conviction proceeding. See Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir.1960). If a petitioner may present in a state habeas corpus proceeding a colorable claim not previously addressed by the state's highest court on direct appeal that would not be futile, the petitioner has failed to exhaust state remedies. See Crowell v. Zahradnick, 571 F.2d 1257, 1259 n. 2 (4th Cir.1977), cert. denied 439 U.S. 956, 99 S.Ct. 357, 58 L.Ed.2d 348 (1978); Spencer v. Cundiff, 413 F.Supp. 1246 (W.D.Va.1976). Thus, in determining whether petitioner has satisfied exhaustion requirements, the critical question is whether petitioner has as yet unexhausted state habeas corpus remedies for the claims he presents in his petition here.

The Supreme Court of Virginia has held that "it is well-settled that the deprivation of a constitutional right of a prisoner may be raised by habeas corpus." Griffen v. Cunningham, 205 Va. 349, 355, 136 S.E.2d 840, 845 (1966). But subsequent decisions have rendered this Griffen principle "inapplicable" when a prisoner has been afforded a full and fair opportunity to raise his constitutional claim at trial and on appeal. See Slayton v. Parrigan, 215 Va. 27, 29, 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 (1974). Thus, if petitioner received a full and fair opportunity to present his constitutional...