Cherrix v. Braxton, Civ.A. 00CV1377.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Lee
• Citation: 131 F.Supp.2d 756
• Parties: Brian Lee CHERRIX, Petitioner, v. Daniel A. BRAXTON, Warden, Sussex I State Prison, Respondent.
• Docket Number: No. Civ.A. 00CV1377.,Civ.A. 00CV1377.
• Decision Date: 28 February 2000

131 F.Supp.2d 756 Brian Lee CHERRIX, Petitioner,
v.
Daniel A. BRAXTON, Warden, Sussex I State Prison, Respondent. No. Civ.A. 00CV1377. United States District Court, E.D. Virginia, Alexandria Division. February 28, 2000.

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Michele Jill Brace, Washington, DC, Robert Lee Jenkins, Bynum & Jenkins, Alexandria, VA, for Petitioner.

Pamela Rumpz, Office of the Attorney General, Richmond, VA, for Respondent.

POST CONVICTION PROCEEDING

LEE, District Judge.

SUPPLEMENTAL MEMORANDUM OPINION TABLE OF CONTENTS

I. Background ............................................................. 760
                

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 II. The Court's Narrow Application of § 848(q) ......................................... 762
                 III. Actual Innocence Under Herrera .................................................... 765
                 A. Viability of Free-Standing Innocence Claim ..................................... 766
                 B. Clemency Alternative ........................................................... 767
                 IV. Miscarriage of Justice under Schlup ....................................... 769
                 V. Authority of the Court to Order Petitioners to Retain and to Provide Access to
                 Evidence ........................................................................... 770
                 A. Narrowness of January 9, 2001 Order .............................................. 770
                 B. Source of the Court's Authority in 2254 Cases .................................... 774
                 1. The Court's Authority Under the Federal Rules of Civil Procedure .............. 775
                 2. The Court's Authority to Order State Officials to Act ......................... 778
                 3. The Court's Authority to Order the Retention of Evidence ...................... 781
                 C. Overlap of State and Federal Realms .............................................. 784
                 D. Inappropriateness of Mandamus Relief ............................................. 785
                 VI. Conclusion ......................................................................... 786
                

SUPPLEMENTAL MEMORANDUM OPINION

THIS MATTER is before the Court on the request by the Fourth Circuit Court of Appeals to respond to the Warden of Sussex I State Prison, the Attorney General for the Commonwealth of Virginia, and the Accomack County Circuit Clerk of Court's Petition for Writ of Mandamus and/or Prohibition and Appeal from Order Granting Injunction. Petitioners move for relief from this Court's January 9, 2001 Order granting the habeas petitioner's motion for DNA testing and motion for the retention and preservation of evidence. The Court submits this Supplemental Memorandum Opinion to clarify and reaffirm its January 9, 2001 Order.

The narrow issues before this Court are (1) whether it is within the district court's discretion to authorize funding under 21 U.S.C. § 848(q)(9) for the retesting of DNA evidence when the petitioner has made a preliminary showing of constitutional error and a new DNA rest is reasonably necessary no support his claims for relief by determining the origin of the seminal fluid found in the decedent's body; and (2) whether the Court is empowered to order the custodians of the evidence to make the evidence available to a private entity for testing. This Court holds that it is within its discretion to grant funding for DNA testing and to require the custodians of the evidence to make it available for testing. See 21 U.S.C. § 848(q); 28 U.S.C. §§ 2254(2)(A)(ii), (2)(B).

The two motions before the district court were the [Habeas] Petitioner's Motion for DNA Testing and the [Habeas] Petitioner's Motion for Retention and Preservation of Evidence. The habeas petitioner requested funding from the federal court for deoxyribonucleic acid ("DNA") retesting of physical evidence collected from the decedent victim's body which would support the habeas petitioner's claims of constitutional error. The Warden of the Sussex I State Prison ("Warden") refused to conduct a DNA retest of the seminal fluid retrieved from the decedent victim's body, even though the Commonwealth of Virginia's ("Commonwealth") first DNA test used technology that is below today's standards, which rendered an inconclusive result. The new DNA testing methods could possibly procure conclusive evidence demonstrating that a third person committed the murder and sodomy which may ultimately exonerate the habeas petitioner of capital murder.

The Court granted the habeas petitioner's request for funds, and ordered that the custodians of the evidence make it available for testing, for three reasons. First, § 848(q) authorizes a district court to provide funding for services which are

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reasonably necessary to support the habeas petitioner's petition for writ of habeas corpus. See 21 U.S.C. § 848(q). Second, the Court holds that discovery of the evidence is reasonably necessary for the dual purpose of supporting the habeas petitioner's claims of actual innocence and using innocence as a gateway to show that prejudice resulted from his counsel's ineffective assistance. See Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Schlup v. Delo, 513 U.S. 298, 326, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Third, Cherrix has shown good cause for DNA retesting. See RULES GOVERNING § 2254 CASES, Rule 6(a); 28 U.S.C. §§ 2254(2)(A)(ii), (2)(B). Therefore, based on the particular facts in this case, it is within the Court's discretion to order the retest of the seminal fluid under § 848(q).

I. BACKGROUND

In 1997, habeas petitioner Brian Lee Cherrix ("Cherrix") was convicted of the 1994 murder and sodomy of Tessa Van Hart in an Accomack County Circuit. Court in Virginia.¹ The gruesome facts of the case are set forth by the Virginia Supreme Court. See Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642, 645-646 (1999).

Ms. Van Hart was a pizza delivery woman who was dispatched to deliver an order for pizza. Ms. Van Hart was sodomized, shot twice in the head, and murdered by a lone assailant. At trial, the Commonwealth presented evidence showing that in 1996 Cherrix volunteered that he had information about the sodomy and murder of Ms. Van Hart, subsequently confessed to her sodomy and murder, and then led the police to recover a weapon that may have been involved in the murder. At trial, Cherrix denied that he confessed. Cherrix asserted that he told the police he knew who committed the murder, that he was innocent, and that he had an alibi for the time of the offense. The jury convicted Cherrix of all the charges. The trial court, pursuant to the jury's recommendation, sentenced Cherrix to death for capital murder.² See id. Cherrix appealed the decision and also pursued state habeas relief in the Virginia Supreme Court. The Virginia Supreme Court denied both attempts to overturn the conviction. The day before Cherrix's scheduled execution date, this Court stayed his execution.

Prior to his submission of his federal petition for writ of habeas corpus, and pursuant to 21 U.S.C. § 848(q), Cherrix filed a motion for DNA retesting of the seminal fluid collected from Ms. Van Hart's anus. The circumstances surrounding the request for DNA retesting are as follows. In connection with the investigation of the case in 1994, the Commonwealth conducted DNA testing on fluid collected from Ms. Van Hart's anus and found the presence of seminal fluid. In conjunction with the autopsy of Ms. Van Hart, the medical examiner divided the material taken from her body into spermatozoa and non-spermatozoa fractions, which were then subject to Polymerase Chain Reaction "PCR" DNA testing. (Habeas Pet., Ex: App. 89.) The non-spermatozoa fractions were consistent with the DNA collected from Ms. Van Hart. (See id.) The PCR test results on the spermatozoa fractions were inconclusive. The test could not amplify the spermatozoa fractions; therefore, it was unable to ascertain the identity of the assailant who sodomized Ms. Van Hart and left the seminal

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fluid in her body. The Commonwealth's theory of the case at trial was that a lone assailant murdered and sodomized the victim. Therefore, it is reasonable to infer that the person whose seminal fluid is found in Ms. Van Hart's anus was the perpetrator of this gruesome crime.

Six years later, DNA technology has advanced. Cherrix argues that by using current test models it is possible to make a conclusive determination of the origin of the seminal fluid found in Ms. Van Hart's body. Cherrix asserts that advances in DNA testing now make it possible to evaluate samples that were not amenable to DNA testing in 1994. The new methods, the Short Tandem Repeat ("STR") DNA test and the Mitochondrial Test, can render a conclusive opinion by evaluating substances other than spermatozoa that are contained within seminal fluid, such as epithelial cells and white blood cells. (Habeas Pet., Ex: App. 91-92.) Therefore, Cherrix moved for DNA testing, under 21 U.S.C. § 848(q), as reasonably necessary to support his petition for writ of habeas corpus, which contains claims of actual innocence and constitutional error.

While the DNA motion was pending, Cherrix filed a motion for the retention and preservation of evidence, asking the Court to order 10 separate state agencies to preserve the evidence pertaining to Ms. Van Hart's murder and Cherrix's prosecution, including any bodily fluids collected from. Ms. Van Hart. The Warden objected to the Court ordering any state agencies to act. On December 12, 2000, the Court conditionally granted Cherrix's motion for the retention and preservation of evidence and ordered the Virginia Attorney General and the Clerk of Court for Accomack County to preserve all evidence, including any bodily fluids collected from Ms. Van Hart that pertains to Ms. Van Hart's murder and Cherrix's prosecution. See Cherrix v. Taylor, Order (E.D.Va. Dec. 12, 2000) (conditionally granting motion for retention and preservation of...