DeLong v. Thompson

• Decision Date: 11 December 1991
• Docket Number: Civ. A. No. 3:91CV00158.
• Parties: Wayne Kenneth DeLONG, Petitioner, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional Center, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

790 F. Supp. 594

Wayne Kenneth DeLONG, Petitioner, v. Charles E. THOMPSON, Warden, Mecklenburg Correctional Center, Respondent.

Civ. A. No. 3:91CV00158.

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

September 4, 1991.

Memorandum and Order On Motion to Alter or Amend December 11, 1991.

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Latham & Watkins, Jana L. Gill, Coudert Bros., Mitchell Rogovin, Randal S. Milch, Donovan, Leisure, Rogovin, Huge & Schiller, Arthur F. Sampson, III, Washington, D.C., for petitioner.

Donald Richard Curry, Office of Atty. Gen., Richmond, Va., for respondent.

MEMORANDUM OPINION

SPENCER, District Judge.

This matter is before the Court on Respondent's motion to dismiss the petition for a writ of habeas corpus. Petitioner, a Virginia state prisoner, challenges a conviction in the Circuit Court for the City of Richmond of capital murder for killing a police officer. Jurisdiction is appropriate pursuant to 28 U.S.C. § 2254.

On March 27, 1991, this Court entered an order whereby petitioner's application for a stay of execution was provisionally denied. Thereafter, the Court received and reviewed both the respondent's motion to dismiss and petitioner's memorandum in opposition to respondent's motion. The Court found that the issues raised by petitioner were not frivolous and deserved fair and earnest consideration by the Court. Consequently, the Court granted petitioner's application for a stay of the execution that was scheduled for May 1, 1991. The state court order sentencing petitioner to death was therefore stayed pending this Court's resolution of the matter before it or until further order of the Court.

I

On June 15, 1986, petitioner drove to Richmond from Virginia Beach. At that time he apparently had, in his possession, a .45 caliber handgun. He spent most of the day drinking beer with friends at several Richmond bars. Sometime during the day, petitioner's car was stopped by a Richmond city detective. Petitioner allegedly informed his companions in the car that "a mother-fucking cop is pulling me over" and that he was "going to have to shoot this nigger." See Brief in Support of Respondent's Motion to Dismiss at 1. When Detective George Ronald Taylor approached the car, petitioner fired a shot into the officer's chest, perforating the officer's esophagus and his aorta. Id.

Petitioner fled the scene but was apprehended shortly thereafter when his automobile was stopped by Richmond police officers on the interstate highway east of Richmond. Id. at 2. Officer Taylor was pronounced dead several hours later.

After a three-day jury trial in the Circuit Court of the City of Richmond, the jury convicted petitioner of the capital murder of a law enforcement officer and of using a firearm in the commission of that offense. Petitioner received a four year prison sentence for the firearm offense and a sentence of death on the capital murder conviction. On December 18, 1986, the trial court imposed both sentences in accordance with the jury's verdicts.

Petitioner thereafter appealed to the Virginia Supreme Court which affirmed petitioner's sentences. See Delong v. Commonwealth, 234 Va. 357, 362 S.E.2d 669 (1987), cert. denied, Delong v. Virginia, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 263 (1988).

Subsequently, petitioner filed a petition for a writ of habeas corpus in the Circuit Court of the City of Richmond. On February 7, 1989, the Circuit Court dismissed the majority of petitioner's claims and directed that an evidentiary hearing be conducted with regard to certain of petitioner's claims of ineffective assistance of counsel at the penalty stage of the trial. The hearing was held on June 21 and 22, 1989.

At the conclusion of the hearing, the parties were directed to submit proposed findings of fact and conclusions of law. By order dated November 3, 1989, the Circuit Court expressly adopted the respondent's proposed findings of fact and conclusions of law, rejected petitioner's claims of ineffective assistance of counsel, and dismissed the amended habeas petition in its entirety.

Petitioner next appealed to the Virginia Supreme Court. On July 10, 1990, the Court refused petitioner's petition for appeal and expressly found that a number of his claims were "dismissed for reasons of procedural default." The Supreme Court of the United States denied certiorari review. See Delong v. Thompson, ___ U.S. ___, 111 S.Ct. 571, 112 L.Ed.2d 578 (1990). Consequently, petitioner, asserting several claims, filed a petition for a writ of habeas corpus in this Court. Each claim will be reviewed seriatim.

Petitioner's claims are as follows:

1) Community prejudice, arising immediately after the arrest, infected the trial thereby depriving petitioner of both an impartial jury and due process of law;

2) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment right to counsel because his trial counsel did not properly pursue a motion for a change of venue;

3) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to conduct an adequate voir dire;

4) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to make an adequate and independent investigation of his case;

5) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to investigate, develop and present mitigating family evidence;

6) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to investigate, develop and present mitigation evidence based on petitioner's medical background, including his mental health 7) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to investigate, develop and present mitigating evidence based on petitioner's prior conduct and also failed to address the Commonwealth's alleged aggravating factors;

8) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to investigate, develop and present mitigating evidence relating to petitioner's employment history;

9) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to make timely objections at trial;

10) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to prepare, proffer, and argue adequate jury instructions;

11) Petitioner was denied the effective assistance of counsel in violation of his Sixth Amendment rights because his trial counsel failed to develop a responsible legal strategy for the sentencing phase of the trial;

12) Petitioner was denied due process of law because the trial court admitted improper evidence of past crimes during the penalty phase of the trial;

13) Petitioner was denied due process of law because the trial court committed error in impaneling the jury;

14) Petitioner was denied due process of law because the trial court permitted misconduct by the Commonwealth in violation of Brady v. Maryland;

15) A trial witness' pre-trial identification of petitioner was prejudicial and violative of petitioner's Fourteenth Amendment rights;

16) Petitioner was denied due process of law because the Commonwealth failed to establish all of the elements of capital murder;

17) Petitioner was denied due process of law because the trial court allowed improper closing arguments by the Commonwealth;

18) Petitioner was denied due process of law because the trial court failed to properly instruct the jury;

19) The jury instructions were inherently confusing, illogical, and allowed for the imposition of the death penalty in an arbitrary and capricious manner in violation of petitioner's Eighth and Fourteenth Amendment rights;

20) Virginia's capital murder statute and sentencing procedures are unconstitutional on their face and as applied, under the Eighth and Fourteenth Amendments;

21) The present Virginia death penalty procedures have resulted in the arbitrary and discriminatory application of the death penalty based on the sex and financial status of the offender and petitioner's death sentence was imposed pursuant to this discriminatory pattern and practice in violation of the Eighth and Fourteenth Amendments;

22) Imposition of the death penalty in Virginia is unconstitutional because of the Virginia Supreme Court's failure to engage in adequate review of death penalty decisions;

23) Imposition of the death sentence in this case would be excessive or disproportionate to the penalty imposed in similar cases;

24) Trial counsel were constitutionally ineffective because they failed to provide effective assistance on appeal and to adequately raise and preserve issues for appeal;

25) The Virginia Supreme Court's failure to engage in meaningful proportionality review is unconstitutional as applied to petitioner.

II

Petitioner's claim that community prejudice infected the trial and thereby deprived petitioner of an impartial jury and due process of law

Petitioner contends that the sensation surrounding the murder of Detective Taylor and the controversy of another case deprived petitioner of a fair trial. According to petitioner, the media coverage of both tragedies made it impossible for petitioner to receive a fair trial in the City of Richmond.

Several months earlier, an individual had been found guilty of the murder of a Henrico County, Virginia police officer. Unlike petitioner, the person convicted of the crime received a sentence of life in prison. This sentence of life imprisonment for the murder of a police officer resulted in public outrage which was noted in the...