Correll v. Thompson, Civ. A. No. 91-131-R.

• Citation: 872 F. Supp. 282
• Decision Date: 24 August 1994
• Docket Number: Civ. A. No. 91-131-R.
• Parties: Walter Milton CORRELL, Jr., Petitioner, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of Virginia

872 F. Supp. 282

Walter Milton CORRELL, Jr., Petitioner, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional Facility, Respondent.

Civ. A. No. 91-131-R.

United States District Court, W.D. Virginia, Roanoke Division.

August 24, 1994.

COPYRIGHT MATERIAL OMITTED

Michaux Raine, III, Raine and Perdue, Rocky Mount, VA, Robert Eugene Pokusa, Paul, Hastings, Janofsky & Walker, Joseph D. Tydings, Anderson, Hill & Olick, Washington, DC, for petitioner.

Katherine Pharis Baldwin, Office of the Atty. Gen., Richmond, VA, for respondent.

MEMORANDUM OPINION

TURK, District Judge.

Petitioner, a Virginia inmate, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises multiple claims relating to his conviction of capital murder and subsequent death sentence. Respondent has filed a motion to dismiss supported by the state court records. Petitioner, through counsel, has responded with a brief in opposition. A hearing was held in this matter on December 21, 1993. On May 3, 1994, this court granted the respondent's motion to dismiss.¹ The petitioner filed a motion to amend or alter judgment pursuant to Federal Rule of Civil Procedure 59(e). A hearing was held on the Rule 59(e) motion on July 22, 1994. On July 29, 1994, the court granted the petitioner's Rule 59(e) motion and vacated the June 28, 1994 memorandum opinion and final order.

Upon careful consideration of the record, the applicable law, the briefs submitted by the parties, and the arguments presented by counsel at the hearing, the court finds that the petition for writ of habeas corpus must be granted.

I. PROCEDURAL BACKGROUND

On August 11, 1985, Charles W. Bousman was robbed and murdered in Franklin County, Virginia. Petitioner was arrested on August 16 after being implicated by the statements of the other two persons involved in the crime, John Dalton and Richard Reynolds. On August 16, Petitioner gave two statements: one to Detective A.H. Dudley of the Roanoke City Police Department and one to Investigator W.Q. Overton, Jr. of the Franklin County Sheriff's Department. On August 18, petitioner was taken to Appomattox, Virginia for a polygraph examination. Following the polygraph examination, petitioner was taken to the Franklin County Jail in Rocky Mount, Virginia. While at the Franklin County jail, the petitioner gave a third statement to Investigator Overton.² Petitioner was charged with robbery and murder in commission of a robbery while armed with a deadly weapon and pled not guilty in the Franklin County Circuit Court. Petitioner, with the consent of the Commonwealth, waived his right to a jury trial.

On March 5, 1986, petitioner was tried and convicted on both counts by Franklin County Circuit Court Judge B.A. Davis, III. After a separate sentencing hearing on May 5, 1986, the same judge sentenced petitioner to life imprisonment on the robbery charge and to death on the murder charge based upon the vileness of the crime.

Petitioner appealed his conviction to the Virginia Supreme Court, which affirmed the conviction and sentence on January 16, 1987. Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d 352 (1987). Petitioner then filed a petition for writ of certiorari with the United States Supreme Court. The petition was denied on June 15, 1987, with Justices Brennan and Marshall dissenting. Correll v. Virginia, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987).

On August 15, 1987, petitioner filed a petition for writ of habeas corpus in the Franklin County Circuit Court. On October 26, 1988, the circuit court judge held a hearing on the respondent's motion to dismiss. The court granted the respondent's motion as to all claims except those relating to ineffective assistance of counsel and ordered that a plenary hearing be held on the issue of ineffective assistance of counsel claims. On August 15, 1989, a hearing was held in the Circuit Court of Danville before Judge James F. Ingram. In an Order entered January 29, 1990, Judge Ingram adopted the respondent's proposed findings of fact and conclusions of law and dismissed the petition for writ of habeas corpus. The Virginia Supreme Court denied petitioner's appeal from this ruling on August 1, 1990. Petitioner filed a petition for a writ of certiorari with the United States Supreme Court; the Court denied this petition on January 7, 1991, with Justice Marshall dissenting. Petitioner now brings the instant petition for writ of habeas corpus in this court.

In his petition, the petitioner alleges the following claims:

A. His constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated by the introduction into evidence of a statement to the police taken after three days of serial interrogation, where his request for the presence of an attorney during the first interrogation was not honored and he was legitimately continuing to seek counsel:

1. he did not waive his right to counsel;

2. his statement which was admitted into evidence was the tainted product of prior involuntary statements;

3. he did not knowingly and voluntarily waive his right to counsel;

B. He was deprived of his constitutional rights by the ineffective assistance of counsel at both the guilt and penalty phases of the trial and on appeal in the following respects:

1. counsel failed to adequately investigate and elicit sources of available evidence, specifically in that:

a. counsel failed to investigate evidence regarding petitioner's defense;

b. counsel failed to investigate and elicit evidence of the circumstances surrounding petitioner's statements to law enforcement officers;

c. counsel failed to investigate and elicit evidence regarding the nature of the victim's death;

d. counsel failed to investigate the background of petitioner and the other defendants and the admissions of defendant Richard Reynolds concerning Mr. Bousman's death;

e. counsel failed to investigate and elicit evidence that defense counsel thought might alienate the community;

f. counsel failed to investigate and elicit evidence to contradict the codefendants' statements;

2. counsel knowingly and intentionally misrepresented to the court the basis for their request to waive a jury trial and failed to investigate and advise petitioner regarding the waiver of a jury trial;

3. counsel failed to present an adequate defense at trial;

4(a). counsel failed to challenge or question the professional competency of the pretrial evaluations of petitioner by court-appointed psychiatrists

4(b). counsel failed to seek a neurological examination or continuance of the trial based on petitioner's incapacity;

5. counsel failed to adequately advise petitioner of the consequences of waiving a jury trial;

6. counsel failed to present off-setting evidence related to the vileness of Mr. Bousman's murder;

7. counsel failed to introduce other significant mitigating evidence related to petitioner's psychological defects, incapacity, and mental retardation;

8. counsel rendered ineffective assistance on appeal and failed to adequately raise and preserve issues for appeal;

C. Petitioner's waiver of his right to a jury trial was not voluntary, knowing, or intelligent;

D. Petitioner was deprived of his constitutional rights when the psychiatrists appointed before trial failed to conduct adequate and reliable evaluations of him;

E. Virginia's standard of vileness for imposing the death penalty is unconstitutional on its face and as applied in petitioner's case;

F. Petitioner was deprived of his constitutional rights by the failure of the Commonwealth to provide exculpatory materials to his counsel prior to trial;

G. Imposition of petitioner's death sentence was unconstitutional because the Virginia Supreme Court failed to engage in an adequate and thorough review of death penalty decisions;

H. Imposition of petitioner's death sentence was excessive and disproportionate to the penalties imposed in similar cases;

I. The Virginia death penalty statute is unconstitutional because it has been applied in a discriminatory manner;

J. The introduction of evidence related to dismissed charges violated petitioner's constitutional rights;

K. The trial court failed to consider the mitigating circumstances of the crime in imposing a sentence of death;

L. The evidence of vileness was insufficient to support the imposition of a death sentence;

M. The trial court denied petitioner's due process rights in denying his motion for a post-sentence report as required by Va.Code Ann. § 19.2-264.5;

N. Imposition of petitioner's death sentence constitutes cruel and unusual punishment.

II. ANALYSIS

A. Non-exhausted Claims

The court finds that Claim B(2) has never been presented to any state court. Also, Claims B(4)(a), B(8) and G were presented in the state habeas petition, but were not raised on the state habeas appeal or on direct appeal. In order to give state courts the opportunity to pass on the constitutionality of their criminal convictions, a federal court should dismiss without prejudice a state prisoner's petition for habeas relief if it appears that the petitioner has not exhausted his available state remedies. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Where a petition includes both exhausted and non-exhausted claims, the court must dismiss the entire petition, so that petitioner may sever or delete his non-exhausted claims and refile the petition containing only the exhausted claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). An exception to this rule is where a petitioner has not presented his claims to the highest state court but it is clear that the state's law would bar review. However, although exhaustion is not required, federal review is precluded. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Bassette v. Thompson, 915 F.2d 932 (4th Cir.1990), cert. denied 499 U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991).

In this case, if pet...