In Re: Daniel Braxton

• Decision Date: 05 June 2001
• Docket Number: N,No. 01-1,01-1
• Parties: (4th Cir. 2001) In Re: DANIEL BRAXTON, Warden, Sussex I State Prison; MARK L. EARLEY, Attorney General of Virginia; SAMUEL H. COOPER, Clerk, Accomack County Circuit Court, Petitioners. BRIAN LEE CHERRIX, Petitioner-Appellee, v. DANIEL BRAXTON, Warden, Sussex I State Prison, Respondent-Appellant. o. 01-2 Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 250

258 F.3d 250 (4th Cir. 2001)

In Re: DANIEL BRAXTON, Warden, Sussex I State Prison; MARK L. EARLEY, Attorney General of Virginia; SAMUEL H. COOPER, Clerk, Accomack County Circuit Court, Petitioners.

BRIAN LEE CHERRIX, Petitioner-Appellee, v. DANIEL BRAXTON, Warden, Sussex I State Prison, Respondent-Appellant.

No. 01-1, No. 01-2

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: June 5, 2001

Decided: July 9, 2001

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge.

(CA-00-1377-AM)

COUNSEL ARGUED: Pamela Anne Rumpz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Michele Jill Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert L. Jenkins, Jr., BYNUM & JENKINS, P.L.L.C., Alexandria, Virginia; Peter Neufeld, Barry Scheck, The Innocence Project, BENJAMIN CARDOZO SCHOOL OF LAW, New York, New York, for Appellee.

Before MOTZ, TRAXLER, and KING, Circuit Judges.

Appeal dismissed and petition for mandamus denied by published opinion. Judge King wrote the opinion, in which Judge Motz joined. Judge Traxler wrote a concurring opinion.

OPINION

KING, Circuit Judge:

Daniel Braxton, the Warden of Sussex I State Prison in Virginia (the "Warden"), appeals from the district court's order granting the motion of Brian Lee Cherrix, a death row inmate seeking federal habeas relief, for preservation and deoxyribonucleic acid ("DNA") retesting of the prosecution's evidence in his capital murder case. Alternatively, the Warden, along with Mark L. Earley, Attorney General for Virginia, and Samuel H. Cooper, Clerk of the Accomack County Circuit Court (collectively, the "Commonwealth"), seeks a writ of mandamus to compel the court to vacate its order. For reasons explained below, we dismiss the Warden's interlocutory appeal for lack of jurisdiction, and we deny the Commonwealth's petition for extraordinary relief as unjustified.

I.

A.

Cherrix was sentenced to death for the January 27, 1994 capital murder of Tessa Van Hart.¹ Van Hart, then twenty-three, was sodomized and shot twice in the head after being dispatched for a pizza delivery on Chincoteague Island. See Cherrix v. Commonwealth, 513 S.E.2d 642, 645-46 (Va. 1999) (setting forth a detailed factual history of the crime). Her murder went unsolved for more than two years. On June 3, 1996, while Cherrix was incarcerated in the Accomack County Jail on unrelated charges, he offered to share information with police about the Van Hart murder in exchange for leniency with respect to his pending sentencing. Cherrix initially told authorities that his cousin, Robert Birch, III, had divulged to Cherrix in February 1994 that Birch had killed Van Hart -first luring her to an unoccupied residence by ordering a pizza, then raping and shooting her, and finally ditching his gun in a nearby creek.

Birch, who had died in 1995, was ruled out as a suspect. However, when Cherrix led investigators to the spot in the creek where Birch had supposedly told him the murder weapon was discarded, divers searching that location recovered a .22 caliber Marlin rifle. (This gun's patterns were consistent with the bullets recovered from Van Hart's body, although the prosecution's firearms experts could not identify this rifle specifically as the murder weapon.) Cherrix occasionally lapsed into use of the first person in describing how and where the gun ended up in the creek. Moreover, later the day the gun was recovered, during a police interview, Cherrix gave several differing versions of Birch's alleged disclosures, and he used hand and arm gestures to demonstrate how Birch had purportedly claimed to have dumped the rifle. Then, on April 16, 1997, while being transported back to Accomack County Jail on still different charges, Cherrix told police yet another version of Birch's supposed description of the murder. Finally, according to authorities, on April 25, 1997, Cherrix orally confessed to Edward Lewis, Chincoteague's Assistant Police Chief, that he, Cherrix, had murdered and sodomized Van Hart. Accompanied to Chincoteague by Lewis and an Accomack County Sheriff's Deputy, Cherrix then pointed out various spots that he had described in his confession.

1.

Cherrix's confession was reduced to handwriting by Lewis, purportedly as dictated by Cherrix, who later refused to sign it. The Commonwealth emphasizes that Cherrix has variously, and inconsistently, suggested that his confession was false, inaccurately transcribed, coerced, and obtained in violation of his right to counsel. Cherrix counters that even if he did confess, it is not unprecedented for an accused to confess to a crime that he did not actually commit.

According to Cherrix, the only evidence connecting him to Van Hart's murder, other than his confession, was the .22 caliber Marlin rifle. Witnesses testified at trial that Cherrix had owned just such a gun, that he no longer possessed it several days after the crime, and that his gun had a broken, taped stock like the rifle recovered from the creek. There was also testimony, however, that Cherrix's gun had a squirrel carved on the stock. There is no indication in the record that the rifle recovered from the creek bore such a carving.²

Cherrix pleaded not guilty to the charges against him, presenting an alibi defense at trial. Cherrix maintained that, at the time Van Hart was killed, he was caring for his six-week-old daughter at his grandmother's home while speaking on the telephone with his wife, who had undergone an emergency appendectomy earlier that day. This defense was refuted at trial by Cherrix's then-estranged wife, who testified that Cherrix did not call her at the hospital until after 9 o'clock that night -outside the window of time in which Van Hart's murder occurred. The alibi was supported, however, by Cherrix's grandmother, who testified that the phone call occurred at about 8 o'clock or 8:15. In state habeas proceedings, Cherrix presented additional evidence that it had been the hospital's policy to terminate all patient telephone conversations at 9 o'clock.

2.

In 1994, some two years before Cherrix's confession, DNA testing was conducted on seminal fluid collected from Van Hart's anus. In conjunction with her autopsy, the medical examiner divided the material taken from her body into spermatozoa and non-spermatozoa fractions, which were then subjected to a type of DNA analysis termed polymerase chain reaction ("PCR") testing. The non-spermatozoa fractions were consistent with the DNA collected from Van Hart. Due to an inability to amplify the spermatozoa fractions, however, the PCR test results on those fractions were inconclusive.

In authorizing the DNA retesting now in dispute, the district court acknowledged that, because the prosecution's theory of the case at trial was that a lone assailant murdered and sodomized Van Hart, it is reasonable to infer that the person whose seminal fluid was recovered from Van Hart's anus is her killer. The court also recognized that DNA technology has advanced since the PCR tests were conducted in this case in 1994, and that, according to Cherrix, the newer short tandem repeat ("STR") and mitochondrial tests can conclusively identify the donor of the seminal fluid by evaluating substances other than spermatozoa, such as epithelial cells and white blood cells.³

B.

This is the first time in any proceeding that Cherrix has requested DNA retesting. Previously, the Supreme Court of Virginia upheld Cherrix's convictions and death sentence on direct appeal, concluding, inter alia, that his confession was admissible, see Cherrix, 513 S.E.2d 642, and the court subsequently denied Cherrix's request for rehearing. The Supreme Court of the United States then denied his petition for a writ of certiorari. See Cherrix v. Virginia, 528 U.S. 873 (1999). Cherrix filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on December 3, 1999, which the court dismissed on April 4, 2000.

Following the state supreme court's denial of rehearing on June 9, 2000, the trial court scheduled Cherrix's execution for August 16, 2000. The day before, however, the district court for the Eastern District of Virginia stayed Cherrix's execution and granted his motion for appointment of counsel.

1.

Prior to filing his federal petition for a writ of habeas corpus, Cherrix moved the district court for DNA retesting of the seminal fluid collected from Van Hart's body. While this motion was pending, Cherrix filed another motion for the retention and preservation of evidence, asking the court to order ten separate state agencies to preserve the evidence pertaining to Van Hart's murder and Cherrix's prosecution. The Warden objected to the court ordering any state agencies to act. On December 12, 2000, the district court conditionally granted Cherrix's motion for the retention and preservation of evidence, directing the Commonwealth to preserve all evidence, including any bodily fluids collected from Van Hart.

Cherrix then filed his petition in the district court for a writ of habeas corpus on December 28, 2000. The court subsequently authorized funding of DNA retesting and directed the Commonwealth to make the requisite evidence available for analysis. See Cherrix v. Taylor, No. 00-1377 (E.D. Va. Jan. 9, 2001) ("January 9, 2001 Order"). The following day, the court denied the Warden's oral motion to stay this order, ruling that the Warden had set forth no basis for his request. That same day, the Commonwealth filed in this Court: (1) an application for an emergency stay of the January 9, 2001 Order; (2) a Petition for a Writ of Mandamus and/or Prohibition; and (3) the Warden's appeal of the January 9, 2001 Order. On February 5, 2001, we granted the Commonwealth's application for an emergency stay pending appeal.

Pursuant to Rule 21(b)(4)...