Juniper v. Zook

• Citation: 117 F.Supp.3d 780
• Decision Date: 03 August 2015
• Docket Number: Civil Action No. 3:11–cv–00746.
• Parties: Anthony Bernard JUNIPER, Petitioner, v. David W. ZOOK, Warden, Sussex I State Prison, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

117 F.Supp.3d 780

Anthony Bernard JUNIPER, Petitioner,

v.David W. ZOOK, Warden, Sussex I State Prison, Respondent.

Civil Action No. 3:11–cv–00746.

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

Signed Aug. 3, 2015.

Robert Edward Lee, Jr., Charlottesville, VA, Jacqueline May Reiner, Bowen Champlin Foreman & Rockecharlie, Richmond, VA, for Petitioner.

OPINION

JOHN A. GIBNEY, JR., District Judge.

This matter comes back to the Court on remand from the United States Court of Appeals for the Fourth Circuit to consider what, if any, procedurally defaulted claims of ineffective assistance of trial counsel may be raised pursuant to Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Petitioner Anthony Bernard Juniper, an inmate on death row in Virginia, presents three potential claims in his Amended Petition for Writ of Habeas Corpus. (Dk. No. 144.) David W. Zook, the Warden of Sussex I State Prison ("the Warden"), moves to dismiss the Amended Petition. (Dk. No. 146.) Because the Court finds that Juniper's amended claims do not meet the requirements set forth by the Supreme Court in Martinez, each is barred due to procedural default. Accordingly, the Court grants the Warden's Motion to Dismiss and denies Juniper's Amended Petition for Writ of Habeas Corpus.

I. FACTS AND PROCEDURAL HISTORY

The Court previously set forth the grisly facts of the crimes at the heart of this petition in a Memorandum Opinion dated March 29, 2013, which the Court incorporates herein by reference. See Juniper v. Pearson, 2013 WL 1333513, at *1–6 (E.D.Va. Mar. 29, 2013) (Dk. No. 105) vacated in part sub nom. Juniper v. Davis, 737 F.3d 288 (4th Cir.2013). For the purposes of this Opinion, a brief summary suffices.¹

On January 16, 2004, in Norfolk, Virginia, police discovered the bodies of Keshia Stephens, her younger brother Rueben Harrison, III, and her two daughters, Nykia Stephens and Shearyia Stephens. Keshia had been stabbed in the abdomen, shot three times, and grazed by a fourth bullet. Rueben had been shot three times. Four-year old Nykia had been shot one time in the head. Two-year old Shearyia had been shot four times while in her mother's arms, including once through the top of her head. Witness statements and DNA evidence implicated Juniper, Keshia's off-and-on boyfriend. While in jail awaiting trial, Juniper admitted to a fellow inmate that he committed the murders.

Following a two-week trial in the Circuit Court for the City of Norfolk, a jury convicted Juniper on four counts of capital murder and other related felony charges. The jury subsequently sentenced Juniper to death for each of the capital murder convictions, finding the death sentence justified by the two aggravating factors of vileness and future dangerousness. Years of appeals and collateral proceedings left Juniper's conviction and death sentence intact, so he turned to the federal courts for relief under 28 U.S.C. § 2254. On March 29, 2013, this Court dismissed Juniper's original § 2254 petition.

In the Final Order denying the petition, the Court certified two questions to the United States Court of Appeals for the Fourth Circuit. (See Dk. No. 106.) As relevant here, the second question asked whether Juniper was entitled to the appointment of new or additional counsel to determine whether he could assert any claims under Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which the United States Supreme Court decided after Juniper filed his original § 2254 petition.²

The Fourth Circuit answered that question in the affirmative. Juniper v. Davis, 737 F.3d 288 (4th Cir.2013) (Dk. No. 119). Specifically, the Fourth Circuit held that when the same counsel represents a habeas petitioner at both the state and federal levels, "and the petitioner requests independent counsel in order to investigate and pursue claims under Martinez in a state where the petitioner may only raise ineffective assistance claims in an ‘initial-review collateral proceeding,’ qualified and independent counsel is ethically required. " Id. at 290. Because this Court denied Juniper's requests for appointment of new federal habeas counsel, the Fourth Circuit vacated this Court's decision "with respect only to the appointment of independent counsel, and remande[ed] for further proceedings." Id.

On February 28, 2014, this Court appointed independent counsel to investigate any possible Martinez claims and allowed Juniper to file an amended petition. (Dk. No. 122.) The Court appointed additional co-counsel for Juniper on March 31, 2014. (Dk. No. 124.)

Juniper filed his Amended Petition on September 8, 2014. (Dk. No. 144.) In it, he presents three new claims under Martinez:

(1) ineffective assistance of state trial counsel in failing to properly challenge the prosecutor's violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Claim VI);

(2) ineffective assistance of state trial counsel in failing to make a constitutional objection to the trial court's exclusion of expert testimony on Juniper's future dangerousness (Claim VII); and

(3) ineffective assistance of state trial counsel and appellate counsel in failing to make constitutional objections to the trial court's jury instructions under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Claim VIII).

The Warden asks the Court to dismiss the Amended Petition. (See Dk. Nos. 145, 146.)

II. LEGAL STANDARD

Pursuant to the Fourth Circuit's Order, this Court appointed independent federal habeas counsel to examine the record below and determine the availability of any ineffective-assistance-of-state-habeas-counsel claims that might excuse otherwise defaulted ineffective-assistance-of-state-trial-counsel claims, also called Martinez claims. Explanation of the nature and standards for Martinez claims requires some background in federal habeas procedure.

Federal habeas proceedings brought under 28 U.S.C. § 2254 usually follow years of litigation at many stages in the state court system. The typical procedural journey begins with conviction at the state trial court. If direct appeals through the state court system affirm the conviction, then the defendant may petition the United States Supreme Court for a writ of certiorari. If the Supreme Court denies the petition for certiorari, then the convicted defendant can pursue postconviction relief through the state habeas process. If that state habeas process ultimately yields no relief to the prisoner, he may then file a federal habeas petition under § 2254. Such is the journey Juniper has traveled.

A federal district court reviewing a petition filed under § 2254 must follow certain rules that give respect and finality to the prior state court proceedings. The concept of "procedural default" looms large among those rules. Procedural default dictates that "a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule." Martinez, 132 S.Ct. at 1316. The federal habeas court can excuse such a default and reach the merits of the defaulted claim only if the prisoner can show "cause" for his failure to comply with state rules and "prejudice" from a violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).³ Until 2012, the Supreme Court made clear that mistakes by counsel at state-level postconviction or habeas proceedings could not qualify as "cause" for overcoming procedural default. Id. at 754, 111 S.Ct. 2546. That changed with the "narrow exception" set out in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012).

A. Martinez v. Ryan

In Martinez, an Arizona jury convicted Luis Mariano Martinez of two counts of sexual conduct with a minor, and he received two consecutive life sentences. Id. at 1313. Martinez believed his trial counsel had been constitutionally ineffective, but Arizona law required him to wait to raise any ineffective-assistance-of-counsel claims until a postconviction collateral proceeding. Id. A different attorney filed a postconviction brief claiming he could find no meritorious claims for relief, which gave Martinez the right to file a pro se petition. Id. But Martinez never did, allegedly because the attorney failed to advise him that he needed to do so in order to preserve those claims. Id. By the time Martinez retained new counsel and filed a second state habeas petition, Arizona law barred him from pursuing the ineffectiveness claim because it could have been raised earlier.Id.

When Martinez filed his § 2254 petition in the federal district court, he argued he could overcome the procedural default because his own state-habeas counsel's failure to advise him of the need to file the pro se petition amounted to constitutionally ineffective assistance at the habeas level. Id. This habeas-counsel ineffectiveness, Martinez argued, provided the cause necessary to overcome procedural default. Id. at 1314–15. The district court, relying on the rule from Coleman, denied the claim, because "an attorney's errors in a postconviction proceeding do not qualify as cause for default." Id. at 1315 (citing Coleman, 501 U.S. at 754–55, 111 S.Ct. 2546 ). The Court of Appeals for the Ninth Circuit affirmed. When Martinez appealed to the United States Supreme Court, he asked the Court to find that prisoners have a constitutional right to effective assistance of counsel in a state collateral proceeding where that was their one chance to raise ineffective-assistance-of-trial-counsel claims, thus creating a way to overcome procedural default of those claims. Id.

The Supreme Court avoided that question, however, and instead opted to find a "narrow exception" to Colemanwithout constitutionalizing the issue: "[i]nadequate assistance of counsel at initial-review collateral...