Mueller v. Angelone, 98-31

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation181 F.3d 557
Docket NumberNo. 98-31,98-31
Parties(4th Cir. 1999) EVERETT LEE MUELLER, Petitioner-Appellant, v. RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee
Decision Date02 March 1999

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181 F.3d 557 (4th Cir. 1999)
EVERETT LEE MUELLER, Petitioner-Appellant,
RONALD J. ANGELONE, Director, Virginia Department of Corrections, Respondent-Appellee.
No. 98-31
March 2, 1999, Argued
June 14, 1999, Decided

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ARGUED: Jennifer Leigh Givens, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia, for Appellant. Robert H. Anderson, III, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

ON BRIEF: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia; Thomas B. Shuttleworth, Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF & GIORDANO, Virginia Beach, Virginia, for Appellant. Mark L Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges. Judge Luttig wrote the opinion, in which Judge Motz and Judge Traxler joined.

Dismissed by published opinion. Judge LUTTIG wrote the opinion, in whiche Judge MOTZ and Judge TRAXLER joined.


LUTTIG, Circuit Judge:

Everett Lee Mueller confessed on videotape to the rape and murder of ten-year old Charity Powers. He was subsequently convicted of, among other offenses, the rape and capital murder of Powers and sentenced by the jury to death. After exhausting state remedies, Mueller filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The district court dismissed his petition and Mueller appeals. Concluding that none of Mueller's claims provides a basis for habeas relief, we deny his application for a certificate of appealability and dismiss the appeal.


The following facts of the case, taken almost verbatim from the decision of the Virginia Supreme Court on direct appeal, are not in dispute.

On the evening of October 5, 1990, Taryn Potts dropped her 10-year old daughter, Charity Powers, off at a skating rink for the evening. Ms. Potts had arranged for a family friend to pick Charity up later that night. Tragically, the friend fell asleep and never made it to the rink. When Potts arrived home at 3:00 a.m. the next morning and discovered that Charity was not home, she immediately called the police.

Kevin Speeks, who knew Charity, later testified that he had seen her at a Hardee's restaurant near the skating rink at about 12:50 a.m. on October 6, 1990. Speeks also observed a white male, approximately thirty years old, medium height, with an unkempt appearance, driving a cream-colored station wagon with wood siding through the Hardee's parking lot several times. Speeks also testified to seeing the same man standing by the side of the restaurant, near where Charity Powers was sitting on a curb. Everett Lee Mueller fit Speeks' general description and was known to drive a similar car.

In conversations with police on October 8 and 9, Mueller admitted speaking with a young, white female on the night of October 5, 1990, at a fast food restaurant near the skating rink that might have been

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Hardee's. As a result of information learned from intimates of Mueller's, the police searched for Charity's body near his home. On February 8, 1991, approximately 900 feet behind Mueller's house, investigators found "a clump of hair and what looked like some white bone sticking out of the ground." The police then exhumed Charity's body. One of the investigators also found a knife sticking in the ground about 174 feet from the grave site.

On February 12, 1991, the police arrested Mueller. After he was advised of his Miranda rights, Mueller agreed to talk with Detective Wayne R. Garber of the Chesterfield County Police Department and Special Agent John M. Palfi of the FBI. Garber and Palfi questioned Mueller, on videotape, for approximately four and one-half hours. Just over two hours into the questioning, Mueller confessed to having intercourse with and murdering Charity. Mueller stated that he had agreed to give Charity a ride home from the restaurant but that he drove her to his house instead. He admitted that he was thinking about having sex with her and he stated that he thought the 4'8", ninety pound Charity was eighteen or nineteen years old. Mueller stated that she agreed to have sex with him, and told him that she wanted to go home afterwards. Mueller admitted taking Charity to the woods behind his house and having intercourse with her there. He stated that although he had a knife nearby, he did not use it.

Mueller told the investigators that he then strangled Charity to death because he was afraid that she would report the incident to the police. He also claimed that he had been drinking heavily on the night of the murder and that, the next morning, he did not know whether he had dreamed about the previous night's events or whether they had actually occurred. According to Mueller, when he went to check the woods, he saw Charity's body. He then purchased a shovel from a local store, buried the body, and burned Charity's clothes and jewelry nearby.

After making this confession, Mueller led the police to the site where he had buried the body. He also brought them to where he had burned the clothing and jewelry, as well as to the area where he had left the knife. This was the same area where the police had earlier found a knife. Additionally, Mueller indicated that he had had intercourse with Charity in an area that was approximately fifteen feet from where the knife was found.

The doctor who conducted the autopsy on Charity's body testified that her throat had been cut to the depth of one inch, and that the cause of death was an "acute neck injury." She also testified that there were "irregular holes in the area where each nipple would be," which she believed to be the result of an injury, but could not determine their cause or whether they occurred before or after death. Finally, the doctor testified to the existence of evidence consistent with sexual penetration.

On September 11, 1991, Mueller was convicted after a jury trial in the Chesterfield County Circuit Court of abduction with intent to defile and of rape, for which he was sentenced to two life terms. He was also convicted of capital murder in the commission of abduction with intent to defile and of capital murder in the commission of, or subsequent to, rape. After a capital sentencing hearing on September 12, the jury found Mueller to be a future danger and his crime to be vile, and sentenced him to death on the two capital murder counts.1

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Mueller appealed to the Supreme Court of Virginia, which affirmed in all respects, Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992) ("Mueller I"), and subsequently denied his petition for rehearing. Mueller next filed a petition for a writ of certiorari in the Supreme Court of the United States, which was denied on April 19, 1993. Mueller v. Virginia, 507 U.S. 1043, 123 L. Ed. 2d 498, 113 S. Ct. 1880 (1993). Having exhausted his options on direct appeal, Mueller then initiated state habeas proceedings by filing a petition in the Circuit Court of Chesterfield County. The Circuit Court dismissed the petition, and Mueller filed a petition of appeal in the Virginia Supreme Court. By order dated April 1, 1996, that court awarded an appeal, limited to a single assignment of error challenging the exclusion of evidence or argument dealing with Mueller's parole status. After briefing and oral argument, the Virginia Supreme Court affirmed the denial of habeas corpus relief, Mueller v. Murray, 252 Va. 356, 478 S.E.2d 542 (1996), and on June 10, 1997, the court denied his petition for rehearing.

Having exhausted all available state remedies, Mueller filed his first petition for federal habeas corpus relief under 28 U.S.C. 2254 on July 18, 1997. The district court referred the petition to a Magistrate Judge, who applied the revisions to chapter 153 of Title 28 of the United States Code (including revisions to section 2254) enacted on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and recommended dismissal. The district court entered an opinion and final order on August 7, 1998, dismissing his habeas petition. Mueller appeals.2


Before reaching the merits of his appeal, we first consider Mueller's arguments that the AEDPA should not apply to him because its application has an impermissible retroactive effect and that, in any event, the Act is unconstitutional because it requires federal courts to abdicate their obligation to exercise the judicial power to enforce the Supremacy Clause of the United States Constitution. U.S. Const., Art. VI, P 2. Both arguments are without merit, the second bordering on the frivolous. We consider them in turn.


We address first petitioner's contention that the district court erred in applying the AEDPA to his habeas petition because the new section 2254 had an impermissible retroactive effect in his case. Specifically, petitioner argues that the Supreme Court did not intend its holding in Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997), that "the new provisions of chapter 153 generally apply only to cases filed after the Act became effective," id. at 336, to extend to cases filed after the date of enactment, like his, in which the Act's application would have a genuinely retroactive effect on a petitioner's pre-enactment litigation conduct.3

Disposition of this claim requires us to consider the apparent tension between two sets of recent courts of appeals cases. In the first, we and other courts of appeals have explicitly read Lindh to hold that the AEDPA amendments to chapter 153 of

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