Coleman v. Thompson, 89-4002

• Decision Date: 27 February 1990
• Docket Number: No. 89-4002,89-4002
• Citation: 895 F.2d 139
• Parties: Roger K. COLEMAN, Petitioner-Appellant, v. Charles THOMPSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 139

895 F.2d 139

Roger K. COLEMAN, Petitioner-Appellant, v. Charles THOMPSON, Warden, Respondent-Appellee.

No. 89-4002.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1989.

Decided Jan. 31, 1990.

Rehearing and Rehearing In Banc Denied Feb. 27, 1990.

Daniel Joel Goldstein (John H. Hall, Marianne Consentino, Debevoise & Plimpton, New York City, on brief), for petitioner-appellant.

Donald Richard Curry, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, Va., on brief), for respondent-appellee.

Before CHAPMAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

BUTZNER, Senior Circuit Judge:

Roger Keith Coleman, a Virginia prisoner sentenced to death, appeals the district court's denial of his petition for a writ of habeas corpus. The district court concluded that Coleman's claims were procedurally defaulted. We affirm.

Coleman was convicted on March 18, 1982, in the Circuit Court of Buchanan County, Virginia, of rape and capital murder. The opinion affirming his conviction recounts the facts about the crime and the evidence introduced for the imposition of a death sentence. See Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145 (1984). Coleman then applied for a writ of habeas corpus in the Circuit Court of Buchanan County. After an evidentiary hearing, the court denied the writ. The Supreme Court granted the state's motion to dismiss Coleman's appeal. Again, the Supreme Court denied certiorari. Coleman v. Bass, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 227 (1987). Coleman next petitioned for a writ of habeas corpus in the federal district court, setting forth 11 claims asserting the invalidity of his conviction and sentence. The district court denied relief without an evidentiary hearing, and this appeal followed.

I

In his brief, Coleman states the first issue on appeal as follows:

Did the District Court err in finding that federal review of Coleman's claims is barred: (a) when dismissal by the Virginia Supreme Court was based on the novel reading of an ambiguous procedural rule, (b) when Coleman's late filing of his notice of appeal did not represent a deliberate bypass of the courts, and (c) when application of procedural default rules to counsel's error in filing the appeal one day late would deny Coleman meaningful access to the courts?

The district court found that the Virginia Supreme Court had dismissed as untimely Coleman's notice of appeal from the adverse ruling of the state habeas court. Consequently, the district court dismissed as procedurally defaulted the following seven claims, which were raised only in the state habeas proceeding and not on direct appeal:

At least one member of the jury, George Marrs, failed to disclose his preconceived opinion of Coleman's guilt.

Coleman was not afforded reasonably effective assistance of counsel.

Jurors were improperly excluded because of their opposition to imposition of the death penalty.

The prosecution failed to disclose exculpatory evidence.

The prosecution's closing argument denied Coleman a fair trial.

The jury instructions at the penalty stage were constitutionally inadequate.

Virginia's capital murder statute and sentencing procedures are unconstitutional facially and as applied, under the Eighth and Fourteenth Amendments to the Constitution of the United States.

A

The district court premised its finding of procedural default on the Virginia Supreme Court order which dismissed as untimely Coleman's notice of appeal from the adverse ruling of the state habeas court. Rule 5:9(a) of the Virginia Supreme Court provides:

No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel for the appellant files with the clerk of the trial court a notice of appeal and at the same time mails or delivers a copy of such notice to all opposing counsel.

The state habeas court entered its order denying a writ of habeas corpus on September 4, 1986. Coleman filed his notice of appeal on October 7, 1986, one day late, counting from September 5 and omitting Saturday and Sunday, October 4 and 5. Va.Code Ann. Secs. 1-13.3 and 1-13.3:1 (1987). Two weeks later Coleman moved the state habeas court to correct the date of final judgment from September 4 to the date the clerk recorded the order in the common law order book, September 9. The court denied the motion, stating in its order "final judgment was entered on September 4, 1986."

On December 4, 1986, Coleman filed a petition for appeal in the Virginia Supreme Court. The state responded by moving to dismiss the petition on the sole ground that Coleman had filed his notice of appeal more than 30 days after the entry of final judgment. Both sides then briefed the motion and the merits of the petition. The Supreme Court ruled: "[T]he motion to dismiss is granted and the petition for appeal is dismissed."

A state habeas petitioner who fails to meet the requirements of state procedural law, and who has his petition dismissed on that basis by the last state court to review it, loses federal review of the federal claims raised in the state petition in the absence of cause and prejudice or a fundamental miscarriage of justice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Procedural default can be invoked by the state only when "the state court's opinion contains a 'plain statement that [its] decision rests upon adequate and independent state grounds.' " Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989) (quoting Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983)).

Coleman argues that the Virginia Supreme Court did not clearly and expressly rely on a state procedural rule in dismissing his petition for appeal. He points to the Court's recital that among other papers it considered the briefs that had been filed in opposition to the petition.

Coleman's argument lacks a factual basis. The Supreme Court complied with the "plain statement" rule that Harris made applicable to habeas corpus proceedings. The Virginia Supreme Court's brief order shows precisely how the Court dealt with the petition for appeal. The Court recites that it considered all of the papers filed by the parties. The Court then granted the motion to dismiss, which was based on Coleman's failure to comply with Virginia Supreme Court Rule 5:9(a), and dismissed the appeal. ¹

The district court properly concluded that the failure to comply with Rule 5:9(a) was an adequate ground to apply the bar of procedural default. The rule is mandatory. Vaughn v. Vaughn, 215 Va. 328, 210 S.E.2d 140 (1974). The mandatory nature of the rule does not make it unconstitutional. Dismissal of an application for discretionary review because it is untimely does not deprive the applicant of due process of law. Wainwright v. Torna, 455 U.S. 586, 588 n. 4, 102 S.Ct. 1300, 1301 n. 4, 71 L.Ed.2d 475 (1982). Even in a capital case, procedural default justifies a federal habeas court's refusal to address the merits of the defaulted claims. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

B

Coleman asserts that the district court erred because the dismissal by the Virginia Supreme Court was based on a novel reading of an ambiguous procedural rule, namely whether an order is "entered" on the date the judge issues it or the date the clerk records it. He relies on the proposition that a procedural ground is inadequate if it fails to provide fair notice to the litigant. See, e.g., James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984).

The major premise of Coleman's argument is flawed. The rule is not ambiguous. Its application by the Supreme Court was not novel. Notice to Coleman was adequate. The final order of the state habeas court contains the following notation immediately above the judge's signature: "Entered this 4th day of September 1986." Virginia case law giving effect to the judge's notation of entry is clear. In Peyton v. Ellyson, 207 Va. 423, 430-31, 150 S.E.2d 104, 110 (1966), the Court held that the final order denying a petition for writ of habeas corpus was entered on the date the judge signed the order and that the time for appeal started running from that date.

C

Coleman next argues that the rule of procedural default is inapplicable because his late filing did not represent a deliberate bypass of the courts. He relies on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and its progeny, Ferguson v. Boyd, 566 F.2d 873 (4th Cir.1977).

Murray v. Carrier forecloses Coleman's reliance on Fay and Ferguson by holding that whether procedural default in appellate proceedings bars federal consideration of the defaulted claims should be determined by the cause and prejudice standards of Wainwright v. Sykes, and not by the deliberate bypass standard of Fay. 477 U.S. at 485-92, 106 S.Ct. at 2643-47. See also Smith v. Murray, 477 U.S. at 533, 106 S.Ct. at 2665. In Murray v. Carrier, the Court noted that it expressed no opinion concerning application of the deliberate bypass standard to decision of counsel "not to take an appeal at all." 477 U.S. at 492, 106 S.Ct. at 2647. But this reservation need not detain us, because Coleman's counsel decided to take an appeal.

D

A prisoner can avoid the bar of procedural default if he can show "cause for the noncompliance" with state law and "actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, 433 U.S. at 84, 97 S.Ct. at 2505. Coleman assigns as cause his counsel's error in failing to file a timely notice of appeal from the final order of the state habeas court. The error, he asserts, is of sufficient magnitude to...