Green v. Johnson

• Decision Date: 11 February 2008
• Docket Number: No. 07-9.,07-9.
• Citation: 515 F.3d 290
• Parties: Kevin GREEN, Petitioner-Appellant, v. Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent-Appellee. The American Association on Intellectual and Developmental Disabilities; The Arc of the United States; The Arc of Virginia, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

515 F.3d 290

Kevin GREEN, Petitioner-Appellant, v. Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent-Appellee.

The American Association on Intellectual and Developmental Disabilities; The Arc of the United States; The Arc of Virginia, Amici Supporting Appellant.

No. 07-9.

United States Court of Appeals, Fourth Circuit.

Argued: November 1, 2007.

Decided: February 11, 2008.

ARGUED: Michele Jill Brace, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Timothy M. Richardson, Huff, Poole & Mahoney, P.C., Virginia Beach; Virginia, for Appellant. Robert F. McDonnell, Attorney General, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. James W. Ellis, Norman C. Bay, Steven K. Homer, April Land, Carol M. Suzuki, Albuquerque,

New Mexico, for Amici Supporting Appellant.

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON joined. Judge MOTZ wrote an opinion concurring in the judgment.

OPINION

SHEDD, Circuit Judge:

Kevin Green, a Virginia capital inmate, appeals the denial of his petition for a writ of habeas corpus. The district court granted Green a certificate of appealability ("COA") on two issues: (1) whether he is mentally retarded so that his sentence is unconstitutional under the Eighth Amendment as interpreted in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and (2) whether his trial counsel rendered ineffective assistance by failing to appeal his non-capital convictions after the first of his two trials. In denying relief, the district court concluded that Green failed to prove he is mentally retarded under Virginia law and that his ineffective assistance of counsel claim is untimely under 28 U.S.C. § 2244(d). For the following reasons, we affirm.

I

We begin with a summary of the facts pertaining to the underlying crimes, as articulated by the Supreme Court of Virginia:

"The victim, Patricia L. Vaughan, and her husband, Lawrence T. Vaughan, owned and operated a small grocery store in Brunswick County. As part of their grocery store operation, the Vaughans regularly cashed checks for employees of several nearby businesses, including a lumber company that paid its employees on Friday of each week. Consequently, Mr. Vaughan routinely went to a bank on Fridays to obtain sufficient currency to cash payroll checks for the lumber company employees. And, he did so on Friday, August 21, 1998. Upon returning from the bank on that Friday, he placed $10,000 in a bank bag that he kept in a cabinet underneath the cash register, another $10,000 elsewhere in the store, and the remaining cash in a safe.

"On the day in question, as Mr. Vaughan was starting to eat lunch and to file an invoice, two men entered the store. Mr. Vaughan saw them and recognized the taller of the two men as Kevin Green, the defendant. Green had worked for the lumber company for approximately eight to ten weeks during the preceding spring, and had frequented the Vaughans' grocery store at lunchtime, after work, and on Fridays to cash his payroll checks.

"When the two men entered the store, Mrs. Vaughan had her back to the door and was standing five or six feet from Mr. Vaughan. Thinking that the shorter man was going over to the `drink box,' Mr. Vaughan turned around to finish his filing. As he did so, he heard his wife scream, `Oh, God.' At trial, Mr. Vaughan described what he then heard:

It was four bangs. Bang, bang and I was hit. I didn't know where I was hit, but I was hurt. I turned a complete turn and fell on the floor, sit [sic] down on my right foot and broke my right ankle. And about [the] time I went down, I looked up and I realized it was a gun being fired. I could see him, he shot toward my wife with the fourth shot. I saw his hand with a pistol in it. He was holding [it] like he was target practicing.

"Mr. Vaughan testified that Green, after firing the four shots, walked back to the door and stood there `as a lookout' while the other man came around behind the counter and tried to open the cash register. When the drawer on the cash register jammed, Green directed the shorter man to look under the counter. Upon doing so, he found the bank bag containing approximately $9,000 in cash and Mr. Vaughan's pistol, which he then used to shoot through the key hole in the cash register drawer. Taking the bank bag and the pistol, the shorter man exited the store, but Green walked a few steps over to where Mrs. Vaughan was lying on the floor and pointed the gun at her again. According to Mr. Vaughan, the gun misfired, and Green ejected a live cartridge onto the floor. Green then fired two more shots in the direction of Mrs. Vaughan. Lowering his head, Mr. Vaughan heard the gun `snap' one more time, but he did not know whether Green was pointing the gun at him or his wife. Only then, when the gun was empty, did Green leave the store.

"After Green left, Mr, Vaughan dragged himself approximately five feet across the floor of the store to a telephone and dialed the'911' emergency number, but he was too weak to reach his wife who was still lying on the floor. One of the first police officers to arrive at the scene testified that he observed `puddles of blood just pouring out of [Mrs. Vaughan's] nose, her mouth, [and] her head.' A local volunteer medical examiner determined that Mrs. Vaughan had died at the scene of the shooting.

"A subsequent autopsy of Mrs. Vaughan's body revealed that she sustained four gunshot wounds. One bullet penetrated the left side of her head, passed through the temporal and frontal lobes of her brain, and lodged in the inner frontal sinus of her face. Another, bullet entered the right side of her chest and went into the upper lobe of her right lung. A third bullet penetrated the left side of her back. This was the only non-lethal wound. The fourth bullet entered the right side of Mrs. Vaughan's back and penetrated two lobes of her right lung. According to the forensic pathologist who performed the autopsy, Dr. Jose Abrenio, this wound caused hemorrhaging in her thoracic cavity, which led to difficulty in breathing and had the effect of suffocating her. Dr. Abrenio also opined that Mrs. Vaughan survived `seconds to minutes' after she was first shot.

"Four days after the murder, a warrant was issued to search Green, his residence, and automobile. During the search of his home, six bullets were retrieved from the trunk of a tree in his yard. The bullets were found behind a `makeshift target' hanging on the tree. Forensic testing on those six bullets and the four bullets recovered from Mrs. Vaughan's body during the autopsy revealed that all ten `caliber 25 Auto full metal jacketed bullets' had been fired from one weapon. About 35 to 50 feet from the tree, 16 25-caliber empty cartridge casings were also recovered.

"After Green was arrested, he executed a form waiving his Miranda rights and agreed to be questioned by law enforcement officers. During that interrogation, Green admitted that he and his cousin, David Green, robbed the Vaughans' grocery store and that he selected their store because he knew the. Vaughans kept a lot of money there. Green and his cousin had originally planned to wear masks to conceal their faces. However, they discarded the masks after they had to wait behind the store in their automobile for about an hour because other people were in the grocery store. Green also admitted that he shot both of the Vaughans, hitting Mrs. Vaughan four times." Green v. Commonwealth, 266 Va. 81, 580 S.E.2d 834, 837-39 (2003) ("Green v. Commonwealth II").

II

In June 2000, Green was convicted of the capital murder of Mrs. Vaughan during the commission of robbery; and of the non-capital crimes of robbery, malicious wounding of Mr. Vaughan, and three counts of illegal use of a firearm. The jury fixed Green's punishment at death for the capital murder conviction; life imprisonment for the robbery conviction; 20 years imprisonment for the malicious wounding conviction; and three years imprisonment for each of the firearms convictions. On October 6, 2000, the trial judge sentenced Green in accord with the jury's verdict. Green's trial counsel appealed his capital murder conviction and death sentence but not his non-capital convictions.

In June 2001, the Supreme Court of Virginia reversed Green's capital murder conviction and death sentence, holding that the trial judge abused his discretion by refusing to remove two potential jurors from the venire based on their lack of impartiality. See Green v. Commonwealth, 262 Va. 105, 546 S.E.2d 446 (2001) ("Green v. Commonwealth I"). The supreme court concluded that one juror had formed a fixed opinion about the punishment Green should receive if convicted of the capital murder, and the other juror had formed a fixed opinion about the case based on pretrial publicity. Although this decision necessitated a new trial on the capital murder charge, it did not affect Green's unappealed non-capital convictions. See id. at 447 ("Green did not appeal his non-capital convictions. Therefore, those convictions are not before this Court and are not affected by this opinion.").

Green's retrial occurred in the latter part of 2001, and a jury again convicted him of capital murder during the commission of robbery and fixed his punishment at death. Green's criminal record, including the non-capital convictions and sentences he received at the first trial, was presented to the jury during the sentencing phase of the retrial. In January 2002, the trial judge sentenced Green in accord with the jury's recommendation. In June 2003, the Supreme Court of Virginia affirmed Green's capital murder conviction and death...