Muhammad v. Kelly

• Decision Date: 07 August 2009
• Docket Number: No. 08-13.,08-13.
• Citation: 575 F.3d 359
• Parties: John Allen MUHAMMAD, Petitioner-Appellant, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

575 F.3d 359

John Allen MUHAMMAD, Petitioner-Appellant, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.

No. 08-13.

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2009.

Decided: August 7, 2009.

ARGUED:

Jonathan P. Sheldon, Devine, Connell & Sheldon, PLC, Fairfax, Virginia, for Appellant. Katherine Baldwin Burnett, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

ON BRIEF:

James G. Connell, III, Devine, Connell & Sheldon, PLC, Fairfax, Virginia; Nathaniel H. Akerman, Joseph Perkovich, Dorsey & Whitney LLP, New York, New York, for Appellant. William C. Mims, Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before: MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

OPINION

GREGORY, Circuit Judge:

John Allen Muhammad petitions this Court for a writ of habeas corpus. He alleges nondisclosure of exculpatory information by the prosecution, ineffective assistance of his trial counsel, improper exclusion of expert testimony during his sentencing phase, and improper time and page restrictions on his habeas petition in the district court below. We are unable to find reversible error in the conclusions of the state and district courts, and we therefore affirm the district court's decision to deny habeas relief.

I.

Paul J. LaRuffa was a restaurateur in Clinton, Maryland. At the end of the day on September 5, 2002, LaRuffa closed his restaurant and proceeded to take his laptop computer and $3500 in cash and credit receipts to his car. After he sat behind the steering wheel, he saw a figure to his left and a flash of light, then heard gunshots. LaRuffa was shot six times, but survived. An employee who left the restaurant with LaRuffa witnessed the shooting and called 911. He testified that he saw a "kid" run up to LaRuffa's car, fire into it, and take the briefcase and laptop. Muhammad v. Virginia, 269 Va. 451, 619 S.E.2d 16, 25 (2005). The briefcase and empty deposit bags were found six weeks later in a wooded area approximately a mile from the shooting. The DNA from clothing found nearby was consistent with that of Lee Boyd Malvo.

On September 15, 2002, there was a second shooting in Clinton, Maryland: Muhammad Rashid was locking the front door of the Three Roads Liquor Store from the outside when he heard gunshots behind him. A young man then rushed him and shot him in the stomach. Rashid testified that the young man was Malvo.

Almost a week later, on September 21, 2002, Claudine Parker and Kelly Adams were shot after closing the Zelda Road ABC Liquor Store in Montgomery, Alabama. Parker died as a result of her gunshot wound through the back—the bullet transected her spinal cord and passed through her lung. Adams was shot through the neck, and the bullet exited through her chin, breaking her jaw in half, shattering her face and teeth, paralyzing her left vocal cord, and severing nerves in her left shoulder. Yet, she survived. Bullets recovered from the shooting were eventually identified as coming from a Bushmaster high-powered rifle. While the rifle was being fired, Malvo was seen approaching Parker and Adams. A police car passed by the scene immediately after the shooting, and the officers observed Malvo going through the women's purses. The officers gave chase, but Malvo escaped. In the process, however, he dropped a gun catalog. Malvo's fingerprints were found on the catalog, and a .22-caliber, stainless-steel revolver was found in the stairwell of an apartment building that Malvo traversed. The revolver was the same as the one used to shoot LaRuffa and Rashid.

Two days later, on September 23, 2002, the manager of a Baton Rouge, Louisiana, Beauty Depot store, Hong Im Ballenger, was walking to her car after closing the store for the evening when she was shot once in the head. The bullet entered the back of her head and exited through her jawbone. She died as a result of the wound. The bullet was determined to have come from the Bushmaster rifle found on Muhammad during his arrest. Witnesses saw Malvo flee from the scene with Ballenger's purse.

The sixth and seventh shootings occurred in Silver Spring, Maryland, on October 3, 2002. At approximately 8:15 a.m., Premkumar A. Walekar was shot while fueling his taxicab. The bullet went through his left arm and entered his chest, where it fatally damaged his heart. At approximately 8:30 a.m., Sarah Ramos was killed while sitting on a bench in front of the Crisp & Juicy Restaurant in the Leisure World Shopping Center. The bullet entered through the front of her head and exited through her spinal cord at the top of the neck. Both bullets were identified as having come from a Bushmaster rifle, and an eyewitness identified Muhammad's Chevrolet Caprice at the scene of the second shooting.

On October 3, 2002, at approximately 10:00 a.m., Lori Lewis-Rivera was shot in the back while vacuuming her car at a Shell gas station in Kensington, Maryland. The bullet was identified as coming from a Bushmaster rifle. An eyewitness said that he saw a Chevrolet Caprice in the area approximately twenty minutes before the shooting. At approximately 7:00 p.m., a police officer stopped Muhammad for running two stop signs. The officer gave Muhammad a verbal warning and released him. Later that night, at approximately 9:15 p.m., Pascal Chariot was shot in the chest as he crossed the inter section of Georgia Avenue and Kalmia Road in the District of Columbia. Chariot's shooting happened about thirty blocks from where Muhammad was stopped. The bullet fragments from both the Lewis-Rivera and the Chariot shootings were identified as coming from a Bushmaster rifle.

The next day, October 4, 2002, Caroline Seawell was putting bags in her minivan outside of a Michael's craft store in Fredericksburg, Virginia, when she was shot once in the back. The bullet damaged her liver and exited through her right breast, but she survived the attack. An eyewitness testified to seeing a Caprice in the parking lot at the time of the shooting, and ballistics tests determined the bullet fragments came from a Bushmaster rifle.

On October 6, 2002, Tanya Brown was taking Iran Brown to Tasker Middle School in Bowie, Maryland. As Iran was walking on the sidewalk to the school, he was shot once in the chest. Tanya drove Iran to a health care center where surgeons were able to save his life despite lung damage, a large hole in his diaphragm, damage to the left lobe of his liver, and lacerations to his stomach, pancreas, and spleen. Two eyewitnesses testified that they saw a Caprice in the vicinity of the school the day before and the morning of the shooting. One eyewitness positively identified both Muhammad and Malvo in the Caprice the morning of the shooting. The police searched the surrounding area and found a ballpoint pen and a shell casing in the woods near the school. The area had been pressed down like a blind used to conceal hunters. The tissue samples from the pen matched Muhammad's DNA, and the shell casing and bullet fragments were determined to have come from a Bushmaster rifle. The Brown shooting was also the first time that police discovered communications from the shooters. The tarot card for death was found, and on it was written, "Call me God." On the back, someone had written, "For you, Mr. Police. Code: Call me God. Do not release to the Press." Muhammad v. Virginia, 619 S.E.2d at 27.

Three days later, on October 9, 2002, Dean Meyers was fueling his car at a Sunoco station in Manassas, Virginia, when he was shot in the head by a single bullet. The bullet was later determined to have come from a Bushmaster rifle. An eyewitness testified that she saw Muhammad and Malvo in the area approximately one hour prior. The police actually interviewed Muhammad in a parking lot across the street immediately after the shooting, and they later found a map with Muhammad's fingerprints in the parking lot.

On October 11, 2002, Kenneth Bridges was fired upon at an Exxon gas station in Massaponax, Virginia. He was shot once in the chest by a bullet identified as having come from the Bushmaster rifle. Two eyewitnesses testified that they saw a Caprice at or near the Exxon that morning.

The fourteenth shooting occurred on October 14, 2002, in Falls Church, Virginia. Linda Franklin and her husband were loading their car outside of a Home Depot when she was shot in the head by a single bullet and killed. Ballistics experts determined that the bullet was from a Bushmaster rifle.

The next day, October 15, a Rockville, Maryland, dispatcher received the following telephone call: "Don't say any thing, just listen, we're the people who are causing the killings in your area. Look on the tarot card, it says, `call me God, do not release to press.' We've called you three times before trying to set up negotiations. We've gotten no response. People have died." Id. at 28. The caller hung up before the dispatcher could transfer the call to the Sniper Task Force.

Three days later, on October 18, Officer Derek Baliles of the Montgomery County, Maryland, Police received a telephone call. The caller told Baliles to "shut up" and said that he knew who was doing the shootings, but wanted the police to verify some information before he said anything further. Id. The caller asked questions about the Parker and Adams shootings in Alabama and hung up again. When the caller called again, Baliles verified the shootings. The caller stated that he needed to find more coins and a telephone without surveillance, then hung up. The same day, William Sullivan, a priest in Ashland, Virginia, received a telephone call from two people. The first male voice told him that someone else wanted to speak to him. The second male voice said that "the lady didn't have to...