Mu'min v. Pruett

• Decision Date: 13 November 1997
• Docket Number: No. 96-24,96-24
• Citation: 125 F.3d 192
• Parties: Dawud Majid MU'MIN, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 192

125 F.3d 192

Dawud Majid MU'MIN, Petitioner-Appellant, v. Samuel V. PRUETT, Warden, Mecklenburg Correctional Center Respondent-Appellee.

No. 96-24.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1997.

Decided Aug. 18, 1997.

Certiorari Denied Nov. 13, 1997.

See 118 S.Ct. 438

ARGUED: Joseph William Wright, III, McGuire, Woods, Battle & Boothe, L.L.P., McLean, VA, for Appellant. John H. McLees, Jr., Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellee. ON BRIEF: M. Melissa Glassman, McGuire, Woods, Battle & Boothe, L.L.P., McLean, VA, for Appellant. James S. Gilmore, Attorney General of Virginia, Office of the Attorney General, Richmond, VA, for Appellee.

Before WILKINSON, Chief Judge, and WILKINS and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkins wrote the opinion, in which Chief Judge Wilkinson and Judge Motz joined.

WILKINS, Circuit Judge:

OPINION

Dawud Majid Mu'Min appeals an order of the district court dismissing his petition for a writ of habeas corpus, ¹ which challenged his Virginia conviction for capital murder and resulting death sentence. See 28 U.S.C.A. § 2254 (West 1994). ² We conclude that the district court correctly held that the refusal of the Supreme Court of Virginia, under the rule set forth in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974), to consider the merits of the three issues Mu'Min seeks to present to this court constitutes an adequate and independent state-law basis for their denial. Consequently, federal habeas review of these issues is unavailable to Mu'Min unless he is able to demonstrate cause and prejudice or a miscarriage of justice. We further determine that Mu'Min has failed to make the showing necessary to excuse his default with respect to his claims that the state trial court erred in denying his motion for a change of venue and in admitting into evidence an order memorializing Mu'Min's 1973 conviction for first degree murder. We also hold that regardless of whether Mu'Min can establish an excuse for the default of the claim that his constitutional rights were violated when the trial court refused to provide the jury with information regarding Mu'Min's parole eligibility, he is not entitled to the relief he seeks. Accordingly, we affirm.

I.

The underlying facts are fully set forth in the opinion of the Supreme Court of Virginia on direct appeal of Mu'Min's conviction and sentence. See Mu'Min v. Commonwealth, 239 Va. 433, 389 S.E.2d 886, 889-90 (1990). Accordingly, we summarize them only briefly.

In September 1988, Mu'Min was an inmate of Haymarket Correctional Unit 26 in Prince William County, Virginia, having been convicted of first-degree murder in 1973 and sentenced to 48 years imprisonment. On September 22, Mu'Min and other inmates were assigned to work detail with the Virginia Department of Transportation (VDOT). During the morning, Mu'Min fashioned a weapon by sharpening a short piece of metal on a bench grinder and attaching a wooden handle to it. Mu'Min then walked away from VDOT headquarters and proceeded to a carpet store approximately one mile away. He argued with the proprietor, Gladys Nopwasky, and a struggle ensued during which Nopwasky was partially disrobed. Mu'Min beat Nopwasky severely and stabbed her multiple times with the weapon he had made, severing her jugular vein and pulmonary artery. He then removed some coins from Nopwasky's desk and returned to VDOT headquarters, discarding his weapon and bloody shirt along the way. Although a customer discovered Nopwasky and summoned paramedics to the scene, efforts to revive her failed.

Mu'Min subsequently was charged with and convicted of one count of capital murder. Prior to the guilt phase of his trial, Mu'Min moved for a change of venue on the basis that pretrial publicity had rendered it impossible for him to receive a fair trial in Prince William County. The trial judge deferred action on the motion, with the agreement of defense counsel, pending an attempt to impanel an impartial jury. After succeeding in doing so, the trial court denied the motion. The court also denied Mu'Min's motion in limine to exclude or redact an order memorializing his 1973 conviction for first-degree murder, which the Commonwealth proposed to introduce to establish that Mu'Min had been incarcerated when he murdered Nopwasky.

During its sentencing-phase deliberations, the jury sent a note to the trial court asking, "[W]hat exactly is life imprisonment?" J.A. 634. The court responded, "I am sorry; I cannot answer that question. Neither should you be concerned about it." J.A. 635. Despite an invitation by the court for comments, Mu'Min's counsel did not object. The jury then imposed a sentence of death, finding that Mu'Min posed "a continuing serious threat to society" and that the murder of Nopwasky "was outrageously or wantonly vile, horrible, or inhuman." Va.Code Ann. § 19.2-264.2 (Michie 1995).

Mu'Min raised numerous arguments on direct appeal, including challenges to the admission of the 1973 order of conviction--on the basis that the prejudicial impact of this evidence outweighed its probative value--and to various aspects of the procedure employed in impaneling the jury. However, Mu'Min did not appeal the denial of his motion for a change of venue, the admission of the 1973 order of conviction on constitutional grounds, or the manner in which the trial court responded to the question by the jury regarding the meaning of "life imprisonment." The Supreme Court of Virginia upheld Mu'Min's conviction and sentence. See Mu'Min, 389 S.E.2d at 898. Thereafter, the United States Supreme Court granted certiorari to consider whether the trial court had erred in refusing to allow Mu'Min to question potential jurors regarding the content of pretrial publicity to which they had been exposed and concluded that it had not. See Mu'Min v. Virginia, 500 U.S. 415, 431-32, 111 S.Ct. 1899, 1908-09, 114 L.Ed.2d 493 (1991).

Thereafter, Mu'Min sought postconviction relief in state court. A state habeas court conducted a hearing after which it denied relief, ruling that Mu'Min's claims--with the exception of his claims of ineffective assistance of counsel--either had been presented on direct appeal (and thus were not cognizable in a state habeas proceeding) or were procedurally defaulted due to his failure to raise them on direct appeal. The court further found that Mu'Min's claims of ineffective assistance of counsel were without merit. The Supreme Court of Virginia denied review, and the United States Supreme Court denied Mu'Min's petition for a writ of certiorari. See Mu'Min v. Murray, 511 U.S. 1026, 114 S.Ct. 1416, 128 L.Ed.2d 87 (1994).

In October 1994, Mu'Min filed a petition for a writ of habeas corpus in the district court in which he argued, inter alia, that the Sixth and Fourteenth Amendment guarantees of a fair trial and due process were violated by the denial of his motion for a change of venue, the admission of the 1973 order of conviction, and the refusal of the trial court to inform the jury of his parole prospects. The magistrate judge to whom the petition was referred recommended dismissal on the basis that all of the claims raised by Mu'Min were either procedurally defaulted or lacked merit. Specifically, the magistrate judge determined that Mu'Min's challenges to the denial of the change of venue motion, the admission of the 1973 order of conviction, and the refusal to inform the jury of his parole prospects were procedurally defaulted because the Supreme Court of Virginia had refused to consider the issues on their merits citing the procedural default rule set forth in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974) (holding that issues not properly raised at trial or on direct appeal will not be considered in habeas). Further, the magistrate judge ruled that Mu'Min had failed to excuse his state procedural default, and thus federal habeas review of these claims was foreclosed. After conducting a de novo review, the district court agreed with these conclusions and accordingly dismissed the petition.

II.

Mu'Min presents two arguments as to why his claims are not procedurally defaulted. First, he asserts that the procedural default rule set forth in Slayton does not preclude federal consideration of his claims because it is not independent of federal law. Second, he maintains that even if the Slayton rule constitutes an adequate and independent state-law basis for decision, his claims are not defaulted because they were implicitly considered and rejected by the Supreme Court of Virginia during the course of its mandatory review of his death sentence. We find neither of these contentions persuasive.

Absent cause and prejudice or a miscarriage of justice, a federal court sitting in habeas may not review a constitutional claim when a state court has declined to consider its merits on the basis of an adequate and independent state procedural rule. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989). Such a rule is adequate if it is regularly or consistently applied by the state court, see Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988), and is independent if it does not "depend[ ] on a federal constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985).

Mu'Min argues that the Virginia procedural default rule set forth in Slayton is not independent of federal law because it bars the assertion in state collateral review proceedings only of nonjurisdictional defects that could have been raised at trial or on direct appeal. See Slayton, 205 S.E.2d at 682. Mu'Min contends that since compliance with the mandates of the United States Constitution is a jurisdictional prerequisite to a valid conviction, the application of the Slayton procedural default rule by the Supreme Court of Virginia necessarily...