Powell v. Kelly
| Decision Date | 11 January 2008 |
| Docket Number | No. 1:07cv59.,1:07cv59. |
| Parties | Paul Warner POWELL, Petitioner, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Jonathan Shapiro, Greenspun Shapiro Davis & Leary PC, Fairfax, VA, Robert Lee Jenkins, Jr., Bynum & Jenkins PLLC, Alexandria, VA, Jonathan Paul Sheldon, Devine Connell & Sheldon PLC, Fairfax, VA, for Petitioners.
Katherine P. Baldwin, Office of the Attorney General, Richmond, VA, for Respondent.
Petitioner Paul Warner Powell's petition for habeas corpus relief encompasses two capital murder trials on two different indictments. Powell was first convicted of capital murder in the Circuit Court for Prince William County in 2000, and was thereafter sentenced to death. The Supreme Court of Virginia vacated the conviction and remanded, limiting retrial on the specific charged offense to non-capital murder. Apparently flush with his success, Powell rashly wrote a letter to the Prince William County Commonwealth's Attorney, mocking the prosecution and describing additional facts about the crimes that were unknown to the Commonwealth during the first trial. Based on these new facts, the Commonwealth's Attorney elected to nolle prosequi the remanded charges and to seek instead a new indictment against Powell. Accordingly, Powell was tried on this new indictment and was again convicted and sentenced to death. This time, his direct appeal to the Supreme Court of Virginia failed. After unsuccessfully challenging the second conviction and sentence in collateral state proceedings, Powell filed a petition in this district seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Commonwealth responded by filing a motion to dismiss, which is now at issue, as it has been fully briefed and argued. For the reasons set forth here, the Commonwealth's motion to dismiss must be granted.
In his first trial, Powell was tried on the following charges: (i) the capital murder of Stacey Lynn Reed ("Stacey") in the commission of robbery and/or attempted robbery, in violation of Va.Code § 18.2-31(4); (ii) the capital murder of Stacey in the commission of, or subsequent to, the rape and/or attempted rape of Stacey's sister, Kristie Erin Reed ("Kristie"), in violation of Va.Code. § 18.2-31(5)1; (iii) the abduction, rape, and attempted capital murder of Kristie, in violation of Va.Code §§ 18.2-48, -61, -31(5), -26; (iv) grand larceny, in violation of Va.Code § 18.2-95; (v) robbery and attempted robbery, in violation of Va.Code § 18.2-58; and (vi) three counts of the use of a firearm, in violation of Va.Code § 18.2-531 The jury convicted Powell of (i) the capital murder of Stacey subsequent to or in the commission of the rape of Kristie, (ii) the abduction, rape, and attempted capital murder of Kristie, and (iii) grand larceny, but acquitted him of the three remaining charges. Sec ROWell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344, 355 (2001); see also Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537, 543 (2004). On direct appeal, the Supreme Court of Virginia described the facts relating to Powell's convictions, in this first trial, as follows:
Powell was acquainted with Stacey Lynn Reed (Stacey) for two and a half years prior to the commission of the crimes in question. Kristie Erin Reed (Kristie), Stacey's younger sister, described her sister and Powell as "[f]riends." Powell, who was 20 years old at the time of the murder, had wanted to date Stacey, who was 16 years old, but recognized that she was underage and he "could go to jail for that."
Powell, a self-avowed "racist and white supremacist," was aware that Stacey, who was white, was dating Sean Wilkerson, who is black. Wilkerson had recently moved to another locality, but he and. Stacey remained in contact. Stacey was a member of her high school's Junior Reserve Officer's Training Corps and planned to attend a military ball with Wilkerson,
Just before noon on January 29, 1999, Stacey arrived home from school early, having completed her examinations that were being given that day. Powell was waiting for her at her home when she arrived. When Powell learned that Robert Culver, a friend of the girls' mother, would be home shortly for lunch, Powell left and returned at about 12:45 p.m., after Culver had left. When Powell returned, he was armed with a "survival" knife, a "butterfly" knife, a box cutter, and a 9-millimeter pistol.
Stacey was talking to Wilkerson on the telephone. After Stacey ended the telephone conversation, Powell confronted her' about her relationship with Wilkerson. He demanded that Stacey end her relationship with Wilkerson. According to Powell, he and Stacey argued, and the argument grew into a struggle. Powell drew the survival knife from his belt and Stacey "got stuck." Powell denied stabbing Stacey deliberately. The struggle continued briefly until Stacey collapsed on the floor in her sister's bedroom.
Although Powell did not know whether Stacey was still alive, he made no effort to determine her condition or call for medical assistance. Powell "wandered around the house, got some iced tea, had a cigarette." Kristie arrived home from school shortly after 3 p.m. and was met at the door of the home by Powell. Powell told her that Stacey was in her room, but moments later Kristie discovered her sister's body in Kristie's bedroom. She dropped her schoolbooks and began to cry.
Powell ordered Kristie to go to the basement. Kristie, who knew that Powell was usually armed, complied because she "didn't want to die." In the basement, Powell ordered Kristie to remove her clothes and to lie on the floor. Powell then raped Kristie, and she "begg[ed] him not to kill her." Powell later admitted that he knew that Kristie, who was 14 years old at the time of the rape, had been a virgin.
While Powell and Kristie were in the basement, Mark Lewis, a friend of Kristie, came to the house and knocked on the door. When Powell heard the knock, he tied Kristie's legs together and tied her hands behind her back with shoelaces he cut from her athletic shoes. Powell then dressed and went upstairs.
While Powell was upstairs, Kristie managed to loosen the bonds on her hands and attempted to "scoot across the floor to hide" under the basement steps. Hearing Powell coming back to the basement, she returned to the position on the floor where he had left her. Powell then strangled Kristie with a shoelace and she lost consciousness. While she was unconscious, Powell stabbed Kristie in the abdomen and slit her wrists and throat.
Powell returned upstairs, searching for "anything worth taking." He, fixed another glass of iced tea, which he took with him when he left the home a short time later. Powell went to a friend's house and then drove with the friend t2 the District of Columbia to buy crack cocaine.
Kristie regained consciousness sometime after Powell had left her home. About 4:10 p.m., she heard Culver return home, and she called out his name. Culver discovered Kristie in the basement, called the 911 emergency response telephone number, and began rendering first aid to her. He later discovered Stacey's body upstairs. Shortly thereafter, paramedics arrived. In response to a question from one of them, Kristie identified Powell as her attacker. Powell was arrested later that day at the home of his friend's girlfriend, where he and the friend had gone after buying drugs.
Kristie was transported by helicopter to Inova Fairfax Hospital where she received treatment for her injuries. It was ultimately determined that the' wounds to her throat and abdomen each came within one centimeter of severing a major artery which likely would have caused her death.
An autopsy revealed that Stacey had died from a knife wound to the heart. The medical examiner testified that there was a single entrance wound and two exit wounds indicating that the knife had been withdrawn, at least partially, and then reinserted into the, heart. One wound path pierced the left ventricle and the other went through both the left and right ventricles, exiting the heart at the back of the right ventricle.
Stacey's body also exhibited a number of bruises on the head, chest, abdomen, back, arms, and legs, abrasions on the face, a stab wound to the back, and a cut and scrapes on the left forearm. The autopsy further revealed that Stacey had been struck on the head with sufficient force to cause bleeding inside her scalp and in the membranes surrounding her brain prior to death. These injuries were not consistent with Stacey merely having fallen during a struggle.
The DNA profile obtained from the blood found on Powell's survival knife was consistent with the DNA profile of Stacey's blood. The DNA profile obtained from sperm fractions from swabs taken from Kristie's vagina and perianal area was the same profile as that obtained from Powell's drawn blood sample.
While in jail, Powell wrote letters to friends in which he admitted having committed the murder, rape, and attempted murder because of Stacey's relationship with a black man. He further claimed that he had planned to kill Stacey's family and steal the family's truck. Powell also wrote to a female friend and asked her to "get one of [her] guy friends ... to go to a pay phone and call Kristie and tell her [that] she better tell the cops she lied to them and tell her [that] she better not testify against me or she's gonna die."
Powell told another inmate that he had become angry with Stacey when she refused to have sex with him after talking to Wilkerson. Powell told the inmate that he stabbed Stacey twice and that when he attempted to cut Kristie's throat, his knife was too dull, "[s]o he started stepping on her throat trying to stomp her throat." To another inmate, Powell...
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