Justus v. Murray

• Decision Date: 20 March 1990
• Docket Number: No. 89-4005,89-4005
• Citation: 897 F.2d 709
• Parties: Buddy Earl JUSTUS, Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 709

897 F.2d 709

Buddy Earl JUSTUS, Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections, Respondent-Appellee.

No. 89-4005.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1989.

Decided March 2, 1990.

Rehearing and Rehearing In Banc Denied March 20, 1990.

John Michael Copacino, Deputy Director (argued), Georgetown University Law Center, Washington, D.C., for petitioner-appellant.

Robert H. Anderson, III, Asst. Atty. Gen., Mary Sue Terry, Atty. Gen., on the brief, Richmond, Va., for respondent-appellee.

Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.

K.K. HALL, Circuit Judge:

Buddy Earl Justus appeals from the judgment entered in favor of the Virginia Department of Corrections on his petition for a writ of habeas corpus brought under 28 U.S.C. Sec. 2254. Although on different reasoning, we affirm.

I

On October 3, 1978, Ida Mae Moses was found murdered in her home in Montgomery County, Virginia. She had been shot twice in the face and once in the back of the head; any one of the wounds would have been fatal. Forensic tests showed that Moses, who was 8 1/2 months pregnant at the time of the murder, had also been raped. Further, it was determined that she had been killed by her own gun, a snub-nosed .22 caliber pistol, which was stolen during the incident. See Justus v. Commonwealth of Virginia, 220 Va. 971, 266 S.E.2d 87, 89 (1980); Justus v. Commonwealth of Virginia, 222 Va. 667, 283 S.E.2d 905, 907 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

On October 11, 1978, petitioner was arrested in Grundy, Virginia, pursuant to an arrest warrant for a Georgia murder. He waived his Miranda rights and confessed that he had burglarized the Moses' home and had murdered Moses. However, he denied raping her. In January 1979 petitioner was indicted for capital murder during the commission of a rape, in violation of Va.Code Secs. 18.2-31(5), 18.2-32.

At trial, Justus did not deny committing the murder. Instead, he used his confession of the burglary and murder to bolster the credibility of his denial of the rape. While this strategy conceded the commission of a first degree murder, if successful, it would have defeated the capital murder charge, and with it, the potential for the death penalty. ¹ The strategy proved unsuccessful and Justus was convicted of capital murder. On a recommendation from the jury, he was sentenced to death.

On appeal, the Supreme Court of Virginia reversed the conviction because of an error in jury selection. Justus, 266 S.E.2d at 90-92. On remand, Justus employed the same trial strategy and again was found guilty of capital murder and sentenced to death. This time, the conviction was upheld on appeal. Justus v. Commonwealth, 222 Va. 667, 283 S.E.2d 905 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

Justus sought habeas relief in state court. On February 13-14, 1985, a hearing was held on his petition. In August 1985, the petition was denied in full. The Virginia Supreme Court denied a petition for appeal, as well as a petition for rehearing. Likewise, the U.S. Supreme Court denied certiorari. Justus v. Barss, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 182 (1987).

Justus next turned to the federal courts, filing a federal habeas petition in April, 1987. By consent of the parties, the petition was dismissed without prejudice because it contained unexhausted claims. Justus then filed directly in the Virginia Supreme Court another habeas petition which raised the unexhausted claims. That petition was denied by order dated February 22, 1988, on the grounds that all of Justus' claims were procedurally defaulted.

Finally, on May 6, 1988, the instant habeas petition was filed in district court. The petition was referred to a magistrate who, in a lengthy and thorough report, recommended that the petition be dismissed. Both petitioner and the Commonwealth filed objections to the report. The district court denied the objections and by order dated April 12, 1989, the petition was dismissed. This appeal followed.

II

Before this Court, appellant raises seven assignments of error. For purposes of our discussion, these assignments can be considered in three categories, grouped according to the claims' respective procedural postures. We address these categories seriatim.

1. Two of appellant's claims--one involving the effectiveness of his counsel during the penalty phase of his trial and the other involving the denial of his request for a court-appointed psychiatrist to help him prepare for the penalty phase--were not procedurally defaulted in any manner. The district court rejected these claims on the merits, on the reasoning of the magistrate's report. We also find the magistrate's report persuasive and, accordingly, affirm the district court's disposition of these claims.

2. One of appellant's claims, concerning the sufficiency of the evidence supporting his death sentence, was not raised on direct appeal. In state habeas, this claim was rejected as procedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1978), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1979). Likewise, the magistrate below rejected the claim under the rule of Wainwright v. Sykes, 433 U.S. 72, 86-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977), because appellant offered no cause to excuse the default. In his objections to the magistrate's report, appellant for the first time alleged ineffective assistance of counsel as the cause of the default. The district court upheld the magistrate's finding of a procedural bar on the grounds that since the ineffective assistance claim was not alleged in the petition and had not first been presented to and exhausted in the state courts, it could not, under Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986), serve in a federal habeas proceeding as cause for a procedural default. Because appellant concedes that this claim was procedurally defaulted, and because it is clear that exhaustion in state court would be futile, this reasoning was entirely correct and we affirm the district court's disposition of this claim. See Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989).

3. The remainder of appellant's assignments of error stand in a rather peculiar procedural posture. ² First, none of these claims was raised on direct appeal. In state habeas, appellant raised these issues and offered ineffective assistance of counsel as cause for his failure to raise them on direct appeal. The ineffective assistance of counsel claims were rejected by the state habeas trial court and, consequently, the underlying substantive claims were found procedurally defaulted under Slayton.

In his petition for appeal from the state habeas decision, appellant failed to assign as error the ineffective assistance of counsel rulings. Consequently, when he finally presented these claims to the Virginia Supreme Court in this second state habeas petition, they were also found to be defaulted under Slayton. Therefore, appellant has procedurally defaulted on both the substance of his remaining claims as well as the ineffective assistance of counsel claims he offered in state court as cause to excuse the substantive defaults.

Before the district court, appellant raised his procedurally-defaulted substantive arguments and again offered the procedurally-defaulted ineffective assistance of counsel claims as cause. The Commonwealth argued that this double-default, so to speak, left the substantive claims "not reviewable in any manner." It contended that under Wainwright and Murray, the procedural default of the ineffective assistance of counsel claims must be respected and, consequently, that those claims could not serve as cause to excuse the defaults of the underlying substantive claims. The district court rejected this argument.

The lower court rested its analysis on the Supreme Court's decision in Murray. In Murray, the Court held that before a claim of ineffective assistance of counsel can be used in a federal habeas proceeding as cause to excuse a procedural default, the ineffective assistance of counsel claim must first be presented to and exhausted in the state courts. Id. at 488-89, 106 S.Ct. at 2645-46. The district court reasoned that even though the instant ineffective assistance claims were procedurally defaulted, they nonetheless were also exhausted and thus, if meritorious, could, under Murray, serve as cause to excuse appellant's substantive defaults. ³ The court then disregarded the procedural defaults on collateral appeal and went on to adopt the magistrate's report which found that none of the ineffective assistance of counsel claims had merit. Accordingly, the court held that appellant could not show cause to excuse his procedural defaults on direct appeal and that the underlying substantive arguments were procedurally defaulted. While we agree with the result reached by the lower court, we cannot adopt its reasoning. ⁴

A. It is beyond question that ineffective assistance of counsel claims offered as cause to excuse procedural defaults of other constitutional claims are separate and distinct from those other constitutional claims. Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986). As such, claims of ineffective assistance of counsel, like other constitutional claims, may be precluded from federal habeas review if they have been rejected in state court on the adequate and independent state ground of a violation of a state procedural rule. See Harris v. Reed, 109 S.Ct. at 1042; Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. The Supreme Court made clear in Wainwright that absent a showing of cause to excuse a procedural default...