Lovitt v. True

• Decision Date: 06 April 2005
• Docket Number: No. 04-28.,04-28.
• Citation: 403 F.3d 171
• Parties: Robin Mckennel LOVITT, Petitioner-Appellant, v. William Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

403 F.3d 171

Robin Mckennel LOVITT, Petitioner-Appellant, v. William Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.

No. 04-28.

United States Court of Appeals, Fourth Circuit.

Argued: February 1, 2005.

Decided: April 6, 2005.

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ARGUED: Kenneth Winston Starr, Kirkland & Ellis, L.L.P., Washington, D.C., for Appellant. Katherine P. Baldwin, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF: Robert E. Lee, Virginia Capital Representation Resource Center, Charlottesville, Virginia; Thomas D. Yannucci, Ashley C. Parrish, Steven A. Engel, Sookyoung Shin, Kirkland & Ellis, L.L.P., Washington, D.C., for Appellant. Jerry W. Kilgore, Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge TRAXLER joined.

OPINION

WILKINSON, Circuit Judge:

Robin Lovitt was convicted and sentenced to death for the murder of his former co-worker during the commission of a robbery. His challenges to his conviction and sentence — under Strickland, Brady, and Youngblood — have been heard by many courts. The Supreme Court of Virginia rendered two thorough and conscientious opinions in his case — one on direct appeal and one on habeas. The state habeas court in Arlington also treated Lovitt's claims with care, holding a two-day evidentiary hearing and authoring detailed findings of fact and conclusions of law. Finally, the federal district court again reviewed Lovitt's claims, and dismissed them in a meticulous and lengthy opinion.

This case is a good example of the care with which state courts should treat capital cases. We think the Virginia Supreme Court properly resolved Lovitt's claims. Even if that were not the case, however, we could not begin to say that it unreasonably applied clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1) (2000). In so concluding, we affirm the judgment of the district court dismissing the petition.

I.

A.

The Virginia Supreme Court has provided a full account of the facts of the murder on Lovitt's direct appeal, see Lovitt v. Commonwealth, 260 Va. 497, 537 S.E.2d 866 (Va.2000) ("Lovitt I"), so we need only summarize the salient evidence here.

On November 18, 1998, Clayton Dicks was brutally murdered at the pool hall where he worked in Arlington County. Dicks was stabbed six times in his back and chest. When his body was found, the police discovered that the pool hall's cash register had been broken and one of the drawers was missing.

Also missing that morning was a pair of orange-handled scissors kept next to the register. A police canine unit found scissors of a similar description lying in the woods about fifteen yards behind the pool hall. Those scissors had blood on them which matched the DNA of Clayton Dicks. Amy Hudon, a manager at the pool hall, testified that two months before Dicks was murdered, the cash register drawer was not opening properly. Robin Lovitt, an employee of hers at the time, assisted her by prying a pair of scissors into the drawer's latch and forcing it open.

Clayton Dicks was scheduled to work the late managerial shift at the pool hall on the night he was murdered. He arrived for work between 1:30 and 2:00 in the morning. The other employees left the pool hall by 3:00 a.m., making Dicks the only employee remaining on the premises. At 3:25 a.m., Jose Alverado and Carlos Clavell arrived at the pool hall and witnessed two men fighting behind the bar. Alvarado testified that he saw the shorter man stab the taller man six or seven times with a silver-colored weapon. Once the taller man fell to the floor, Alvarado said he saw the shorter man repeatedly kick him. At the preliminary hearing, Alvarado could not say he was 100% certain that Lovitt was the assailant, but he did testify at trial that he was 80% sure.

Warren Grant is Lovitt's cousin. He lives on the "other side of the woods" from the pool hall, about a quarter mile away. Grant testified that Lovitt arrived at his house between 1:30 and 3:00 on November 18th. Grant said Lovitt was carrying a large square metal box. The two cousins opened the box with a screwdriver and split the money that was inside.

The government's theory at trial was that Lovitt used the scissors to pry open the cash register but was caught in the act by Dicks. Thus surprised, Lovitt allegedly stabbed Dicks several times with the scissors before fleeing with the cash-register drawer to his cousin's house, discarding the scissors along the way.

In support of this theory, a forensic scientist testified that the cash register drawer that had been found at Grant's house did in fact come from the pool hall register, and that the pry marks on the drawer were made by the same scissors that were found in the woods. Another scientist testified that the chance of someone other than Dicks contributing to the DNA sample on the tip of the scissors found in the woods was 1 in more than 5.5 billion.

Another key witness for the prosecution was Casel Lucas. Lucas was an inmate at the Arlington County jail who befriended Lovitt during the two months they lived together in the same unit. Lucas testified that Lovitt confided in him about murdering Dicks. According to Lucas, Lovitt said he waited in the bathroom late at night on November 18 until he knew everyone but Dicks had left the pool hall. Apparently, Lovitt then attempted to jimmy open the cash register drawer. When confronted and recognized by Dicks, Lovitt told Lucas he stabbed Dicks several times and took the cash register drawer to his cousin's house before leaving to buy drugs.

After hearing all of this evidence, on September 20, 1999, a jury found Robin Lovitt guilty of the capital murder of Clayton Dicks during the commission of a robbery.

In a separate sentencing proceeding, the government sought the death penalty for Lovitt on a theory of future dangerousness. See Va.Code Ann. § 19.2-264.4. The prosecutors introduced evidence of Lovitt's rather extensive criminal history, starting with charges of assault when he was just eleven years old. The jury learned that while at a juvenile detention center during his teenage years, Lovitt was disciplined for fighting, assault, and possession of contraband. He was convicted of grand larceny in 1981 and served 12 months in jail. At various times in his life, Lovitt was convicted of petit larceny, grand larceny, breaking and entering, distribution and possession of narcotics, attempted robbery, parole violations, destruction of property, and assault and battery. Lovitt was on parole at the time of Dicks's murder.

To mitigate this evidence, Lovitt's attorneys presented testimony from the guards at the Arlington County jail. Those officers stated that Lovitt had not caused any disciplinary problems while in jail on the present charges, and in fact regularly attended Bible study and AA meetings. Lovitt also offered testimony from his half-sister, Lemanda Jones, who testified that Lovitt was the oldest of twelve children who took care of his younger siblings.

The jury weighed the aggravating and mitigating evidence and ordered death as the punishment for Lovitt's murder conviction.

B.

Lovitt appealed to the Supreme Court of Virginia, which affirmed his conviction and sentence on November 3, 2000. Lovitt I, 260 Va. 497, 537 S.E.2d 866 (Va.2000). In October of the following year, the United States Supreme Court denied Lovitt's petition for a writ of certiorari. 534 U.S. 815, 122 S.Ct. 41, 151 L.Ed.2d 14 (2001).

In May 2001, virtually all of the evidence from Lovitt's trial was thrown away as ordered by Robert McCarthy, a clerk in the Arlington County Circuit Court. McCarthy did not notify anyone at the Commonwealth Attorney's Office of his intentions to dispose of these items. He had the evidence discarded in order to make additional space in the evidence room, and because he had received a mandate from the Supreme Court of Virginia indicating that Lovitt's appeal was over.

In January of 2002, Lovitt's new court-appointed counsel filed a state petition for a writ of habeas corpus. The petition alleged, among others, (1) that Lovitt's due process rights were violated because the state destroyed evidence and thus prevented adequate habeas review, (2) that the prosecution willfully suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (3) that his trial counsel provided ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Supreme Court of Virginia reviewed Lovitt's petition, and decided that it raised issues of fact which required an evidentiary hearing to resolve. Thus, at the Supreme Court's direction, the Circuit Court of Arlington County held a two-day evidentiary hearing on June 18 and 19, 2002. Prior to the hearing, the circuit court granted much of Lovitt's extensive discovery requests. Accordingly, Lovitt was permitted to depose the two Assistant Commonwealth's Attorneys who prosecuted his case, and the head clerk of the court where the evidence was destroyed. He was also authorized to subpoena the social service records of many of his family members and he was given copies of certain records from the prosecutor's files.

Following this comprehensive evidentiary hearing in which live testimony was heard from over twenty witnesses, the circuit court issued a report with approximately fifty detailed findings of fact and over ten pages of proposed conclusions of law. It recommended that Lovitt's petition be denied.

The state supreme court then reviewed Lovitt's claim once more — ordering a full briefing from the parties and oral argument. The court reviewed the Arlington circuit court's factual findings to ensure they...