Orbe v. True

Decision Date27 November 2002
Docket NumberNo. CIV.A.01-1845-A.,CIV.A.01-1845-A.
Citation233 F.Supp.2d 749
PartiesDennis Mitchell ORBE, Petitioner, v. William Page TRUE, Warden, Sussex I State Prison, Respondent.
CourtU.S. District Court — Eastern District of Virginia

Robert Lee Jenkins, Jr., Bynum & Jenkins, P.L.L.C., Alexandria, VA, Michelle Jill Brace, Virginia Capital Representation Res. Ctr., Charlottesville, VA, for petitioner.

Katherine Pharis Baldwin, Office of the Attorney General, Richmond, VA, for respondent.


ELLIS, District Judge.

Petitioner Dennis Mitchell Orbe was convicted of capital murder in the Circuit Court for York County on August 13, 1998, and thereafter sentenced to death in accordance with the jury verdict on October 27, 1998. After unsuccessfully challenging the imposition of the death penalty both on direct appeal and in state collateral proceedings, Orbe now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is before the Court on respondent's motion to dismiss the petition, which, for the reasons stated below, must be granted.

I. Facts1

Dennis Mitchell Orbe was convicted of capital murder for shooting a convenience store clerk at a gas station in York County, Virginia, in the early morning of January 24, 1998. The incident was recorded on videotape by the store's security camera system, and was eventually shown to the trial jury. At 3:38 a.m. on January 24, Orbe entered the store. He had been in the store twice on the previous day without buying anything. On this occasion, Orbe walked up to the check-out counter and pointed a revolver at the chest of the convenience store clerk, Richard Burnett. When Burnett opened the cash register drawer, Orbe shot him in the chest. As Burnett clutched his chest and struggled to remain standing, Orbe walked around the counter and removed some money from the cash register drawer. He then fled the store, taking with him the $90.65 he had taken from the cash register drawer.

Shortly thereafter, a customer discovered Burnett's body and called for emergency assistance. A police investigator arrived to find Burnett's lifeless body on the floor behind the cash register.2 The videotape from the security camera was recovered, and still images from the tape were disseminated to law enforcement and the media. The sheriff's office received several telephone calls identifying Orbe as the person in the pictures. Yet, Orbe was not apprehended until the conclusion of a high speed chase through the streets of Richmond on January 31, 1998. During this chase Orbe drove across a median, traveled down the wrong side of a street, and accelerated through a roadblock. He was eventually captured on foot after he jumped out of his vehicle and ran down an alley.

In the search pursuant to Orbe's arrest, a partially loaded .357 magnum revolver was found tucked in the waistband of his pants. After examining the revolver and the bullet that had been removed from Burnett's chest, a forensic scientist at the Virginia Department of Criminal Justice Services concluded that the bullet had been fired from the revolver found on Orbe. The serial number of the gun matched that of a gun belonging to Orbe's stepfather Willis Branch, which had been kept in the home Branch shared with Orbe. Branch had discovered that the gun was missing in the first or second week of January 1998.

The incident at the convenience store was part of a string of criminal acts Orbe committed over the course of ten days. The facts concerning these incidents were presented to the jury during the sentencing phase of the trial to prove Orbe's future dangerousness. This evidence reflected that Orbe began his crime spree on January 21, 1998, when Lois Jones and Mark Scougal returned home to find Orbe in their bedroom. Orbe pointed the revolver at Scougal and ordered Scougal to drive him away because he was hiding from the police. While Orbe was forcing Scougal out to the car, Jones retrieved a firearm from her gun cabinet. Testimony was conflicting as to whether Jones fired a warning shot. In any event, Orbe clearly fired his revolver twice, hitting Jones in the leg on the second shot. After Scougal refused to give him the car keys, Orbe fled from the scene.

On the same day, Orbe approached two elderly men, Charles Powell and William Bottoms, who were sitting in the front yard of Bottoms's house in Richmond. Orbe showed the men his gun and ordered them to walk to the rear of the house. Telling the men he had "nothing to lose," Orbe ordered both men to surrender their wallets and car keys. With these in hand, Orbe left in Powell's car. The shooting of Burnett occurred two and one half days later.

Thereafter, on January 30, 1998, Orbe was discovered inside a private residence in New Kent County when Karen Glenn, Patricia Tuck and another woman arrived to perform scheduled cleaning services. Orbe brandished his gun and yelled "Bitches, get down." He hit Tuck between the shoulder blades with his gun. He then ordered the three women to crawl on their stomachs to a bedroom and into a closet. He nailed a piece of plywood across the closet door, sealing the women in the closet until the homeowner returned four and one half hours later. Orbe told the women "I'm Dennis Orbe, I'm wanted for murder, and it doesn't matter what I do." He took money, checks and other valuables from the women, including the keys to Glenn's car, which he stole.

During the sentencing phase of the trial, the jury also heard evidence in mitigation of the offense. Orbe's mother and stepfather testified about his troubled childhood and his problems with alcohol abuse. A friend described a change in Orbe's behavior shortly before the January 1998 incidents. The administrator of the regional jail where Orbe had been incarcerated testified that he had received only one minor complaint about Orbe's behavior during confinement.

Orbe also presented testimony from Dr. Thomas Pasquale, a clinical psychologist who had evaluated Orbe for the purpose of assessing his future dangerousness. Dr. Pasquale testified (i) that Orbe had exhibited suicidal tendencies for at least a year prior to the January 1998 incidents, (ii) that he was depressed, in part over his perceived failure as a father and husband, (iii) that he drank heavily, and (iv) that he had an impulse control dysfunction. Dr. Pasquale also noted that Orbe's father had abandoned him at an early age, and that Orbe, who had recently located his father, may have been attempting to steal money for the purpose of visiting his father. In sum, Dr. Pasquale testified that Orbe was not a future danger in a prison setting, unless he had access to alcohol or was placed under duress while incarcerated, but that a "very dangerous, very risky" situation would result if he escaped.

II. Procedural History

Orbe was arrested on January 31, 1998, and indicted in York County for (i) the capital murder of Richard Burnett, (ii) robbery, and (iii) two firearms offenses. The Circuit Court for York County appointed Andrew Protogyrou as lead counsel and Damian Horne as co-counsel. Following a three day trial, August 10-13, 1998, the jury found Orbe guilty of all charges and on October 27, 1998, he was sentenced to death plus sixty years in accordance with the jury verdict. Still represented by Messrs. Protogyrou and Horne, Orbe appealed his convictions and death sentence on five grounds. The Supreme Court of Virginia affirmed the convictions and the sentence on September 17, 1999. See Orbe v. Commonwealth, 258 Va. 390, 519 S.E.2d 808 (1999). Thereafter, with new counsel, Orbe sought a writ of certiorari in the Supreme Court of the United States, which was denied on May 15, 2000. See Orbe v. Virginia, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000).

On July 14, 2000, Orbe filed an original petition for a writ of habeas corpus in the Supreme Court of Virginia. This petition was 113 pages long, exceeding by a substantial margin the 50 page limit on original habeas petitions in capital cases. See Rule 5:7A(g), Va. Sup.Ct. R. Orbe's petition included a motion for leave to exceed the limit. The Supreme Court of Virginia denied the motion, ordering Orbe to file a petition in compliance with the Rule's page limitations by August 28, 2000. See Orbe v. Warden, No. 001708 (Va. July 27, 2000). Orbe did so, along with a motion to amend the petition to include three new claims. Orbe then filed a second motion to amend on June 20, 2001, adding one more claim and again requesting permission to exceed the page limit. The Supreme Court of Virginia denied the motions to amend and dismissed the petition on September 10, 2001. See Orbe v. Warden, No. 001708 (Va. September 10, 2001). Orbe's petition for rehearing was denied on November 2, 2001. See Orbe v. Warden, No. 001708 (Va. November 2, 2001).

The Circuit Court of York County scheduled Orbe's execution for December 13, 2001. On December 6, 2001 the execution was stayed by an Order of this Court. See Orbe v. True, Civil Action No. 01-1845-A (E.D.Va. December 6, 2001) (Order). Also on December 6, Orbe filed a writ of certiorari to review the habeas decision of the Supreme Court of Virginia, which was denied on February 29, 2002. See Orbe v. Taylor, 534 U.S. 1139, 122 S.Ct. 1089, 151 L.Ed.2d 988 (2002).

Thereafter, pursuant to the prescribed schedule,3 Orbe filed a 286-page petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 10, 2002. The petition sets out the following grounds for relief:

I. Racial discrimination:

A. The prosecutor's decisionmaking was tainted by improper considerations of race.

B. Defense counsel failed to protect Orbe from the prosecutor's improper considerations of race.

II. Improper exclusion of venireman Conner:

A. The trial court improperly excluded Conner.

B. Defense counsel failed to challenge the exclusion at trial or on appeal.

III. Lesser included offense:


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