Hoke v. Thompson
| Decision Date | 25 May 1994 |
| Docket Number | No. 3:92CV10.,3:92CV10. |
| Parties | Ronald Lee HOKE, Sr., No. 155686, Petitioner, v. Charles R. THOMPSON, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
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Brian F. Kenney, Miles and Stockbridge, Fairfax, VA, Gerald Thomas Zerkin, Gerald T. Zerkin and Associates, Richmond, VA, for petitioner.
Thomas C. Daniel, Office of the Atty. Gen., Richmond, VA, for respondent.
This matter is before the Court on the petition, under 28 U.S.C. § 2254, for a Writ of Habeas Corpus of Robert Lee Hoke, Sr., a person now in the custody of the Commonwealth of Virginia and under a sentence of death. Hoke attacks the validity of the judgment of the Circuit Court for the City of Petersburg of November 17, 1987, convicting him of capital murder in the commission of robbery, abduction, and rape of Virginia C. Stell. Pursuant to his conviction, Hoke was sentenced to death. Respondent moves the Court for dismissal of Hoke's petition, and Hoke requests an evidentiary hearing pursuant to Rule 8 of the Rules Governing § 2254 Claims.
After petitioner duly noted his appeal to the Virginia Supreme Court, on March 3, 1989, that court affirmed the judgment of the Circuit Court. Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595 (1989). Thereafter, Hoke's petition for certiorari to the United States Supreme Court was denied. 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989). On March 13, 1990, Hoke filed a petition for a Writ of Habeas Corpus in the Circuit Court of the City of Petersburg, and, after an evidentiary hearing on June 22, 1990, the court issued an order on July 12, 1990, denying the habeas petition. Hoke's Petition for Appeal to the Virginia Supreme Court was denied on March 4, 1991, and his March 6, 1991, Petition for Rehearing was denied on April 19, 1991. Hoke's Petition for Writ of Certiorari to the United States Supreme Court was denied on October 7, 1991. ___ U.S. ___, 112 S.Ct. 228, 116 L.Ed.2d 185 (1991).
Hoke filed another Petition for Writ of Habeas Corpus in the Circuit Court of the City of Petersburg on April 29, 1991. The Petition was denied and dismissed on October 30, 1991. Hoke's appeal of that denial, noted on October 30, 1991, was denied by the Virginia Supreme Court.
Petitioner then filed his Petition for Writ of Habeas Corpus in this Court on January 7, 1992. After Hoke filed an Amended Petition on August 18, 1992, respondent filed the motion to dismiss now before the Court. The motion having been fully briefed, Hoke moved the Court on October 1, 1993, for an evidentiary hearing.
For reasons that follow, the Court must dismiss Hoke's petition and deny his request for an evidentiary hearing.
Hoke advances numerous arguments about the unlawfulness of his death sentence and/or conviction.1 They are as follows:
This Court's review of Hoke's petition must be restricted to the inquiry of whether his confinement is in violation of the federal Constitution or laws. 28 U.S.C. § 2241(c)(3). Petitioner bears the burden of exhausting all state court remedies — a requirement that is strictly enforced in the interest of giving the state courts the first opportunity to consider any such alleged errors. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A petition that contains exhausted and unexhausted claims, such as that at issue here, may be considered if the petitioner has no available state remedy left, and because it is clear that the state would deny the review on the basis of a procedural bar. See Meadows v. Legursky, 904 F.2d 903 (4th Cir.) (en banc), cert. denied, 498 U.S. 986, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990).
In addition to the exhaustion requirement, the federal court must also dismiss claims that are either explicitly ruled procedurally barred by the highest state court to consider the claims or that would clearly be procedurally barred if, in fact, presented to the state court. See Pruett v. Thompson, 996 F.2d 1560 (4th Cir.1993). One such procedural bar is based on default at trial. Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for a petitioner to avoid the effect of a procedural default, that petitioner must show "cause and prejudice" for the default. See also Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
Hoke first claims in his Amended Petition that he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the Constitution. Hoke asserts that his trial counsel's performance fell below the range of competence expected of a criminal attorney trying a death penalty case, and that, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), such performance prejudiced his defense as to both guilt and sentencing.
Petitioner cites a host of examples of his trial attorney's alleged incompetence, including: (1) counsel's belief, apparently held up to the day before trial, that he could avoid having to defend the capital murder charge by having Hoke plead only to first degree murder, and defend against the rape robbery and abduction charges; (2) counsel's failure to make various objections alleged by Petitioner to be routinely recognizable objections; (3) counsel's failure to object to instructions to the jury which included alternative bases in the disjunctive for imposing death, and that did not include a unanimity requirement. Further, Hoke complains of counsel's failure to conduct meaningful voir dire, his failure adequately to advise petitioner of his Fifth Amendment right not to testify, counsel's failure to investigate alleged mitigating circumstances and evidence, and counsel's failure to challenge the Commonwealth's use of prior criminal convictions to demonstrate future dangerousness.
Respondent identifies two components of Hoke's ineffective assistance of counsel claim — failure to object to the introduction of criminal convictions that were allegedly irrelevant to a determination of future dangerousness and failure to notice that a juror was substituted for another person in the jury panel — as the only claims that have been properly exhausted. All other parts of Hoke's ineffective assistance of counsel argument, according to the Commonwealth, have never been presented to and acted on by the state's highest court, and, as such, their presentation at this point would be procedurally barred under Virginia Code § 8.01-654(B)(2). Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), respondent argues, federal consideration of these additional claims, is precluded.
With respect to trial counsel's failure to object to the use of prior convictions, such as loitering, to establish future dangerousness, the Commonwealth contends that such failure did not constitute an omission "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Respondent points to the other prior convictions, including assault, attempted arson, and burglary, in asserting that objecting to introduction of the loitering conviction would have been pointless. In addition, the Commonwealth maintains that, in contravention of the Strickland requirements, Hoke has not demonstrated a reasonable probability that, but for his counsel's alleged unprofessional conduct, the result of the proceeding would have been different. Further, the respondent states that the failure to object or notice juror substitution was defaulted at trial.
Hoke opposes respondent's motion as to ineffective assistance of counsel first by pointing out that the very fact that the juror substitution claim was defaulted at trial, in effect, proves the inadequacy of trial counsel. Hoke also contends that respondent is incorrect is his argument that the Teague bar applies to many of the ineffectiveness claims. According to petitioner, many of the ineffectiveness matters were presented to the state habeas court, or need not have been because exhaustion would have been futile. Hoke urges that, a finding of prejudice being essentially precluded, he was not required to exhaust the ineffectiveness claims because he could not prevail on them in the Virginia courts.
Ineffective assistance of counsel claims are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. As such, the Court must reach an independent conclusion...
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Hoke v. Netherland
...U.S.C. § 2254. Initially, the district court dismissed the petition, denying Hoke's request for an evidentiary hearing. Hoke v. Thompson, 852 F.Supp. 1310 (E.D.Va.1994). In August 1994, however, the district court vacated its earlier decision and ordered a hearing on an issue different from......