Pruett v. Thompson, Civ. A. No. 3:90CV00667.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation771 F. Supp. 1428
Docket NumberCiv. A. No. 3:90CV00667.
PartiesDavid Mark PRUETT, Petitioner, v. Charles THOMPSON, Warden, Respondent.
Decision Date19 August 1991




Curtis S. Hansen, Washington, D.C., for petitioner.

Robert H. Anderson, III, Office of Atty. Gen., Richmond, Va., for respondent.


SPENCER, District Judge.

This matter is before the Court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and respondent's motion to dismiss a petition or for summary judgment. The parties have not sought a hearing, and the matter is ripe for disposition. For the reasons stated below, the respondent's motion will be granted and the petition dismissed.


This memorandum will use the following abbreviations:

                  Brief of Appellant    =  Pruett's direct appeal brief
                  State Hab.Pet.        =  State Habeas Petition
                  Am.State Hab.Pet.     =  Amended State Habeas Petition
                  State Hab.Order       =  Habeas trial court order of
                  Pet. for Appeal       =  Petition for Appeal of trial
                                           court denial of habeas writ
                  Sup.Ct. Order         =  Virginia Supreme Court order
                                           of November 16, 1989
                                           refusing petition for appeal
                  Trial Tr. page      =  Trial Transcript page
                  Hab. Vol. page    =  Transcript volume and page
                                           number, for trial court
                                           hearing on habeas petition
                                           Vol. I refers to transcript
                                           of October 18, 1988 proceedings
                                           Vol. II to October
                                           19 proceedings

Pruett was indicted in July 1985 for the rape, robbery and capital murder of Wilma L. Harvey. A jury convicted Pruett of all three charges and fixed his punishment for rape at life imprisonment, and for robbery at 75 years in prison. Pursuant to Virginia Code § 19.2-264.3, the same jury then heard evidence in aggravation and mitigation of the murder charge, and returned a sentence of death. The trial court imposed the sentences fixed by the jury.

The most obvious evidence of Pruett's guilt and the existence of aggravating factors came from his own confession, which the Virginia Supreme Court ably condensed. See Pruett v. Commonwealth, 232 Va. 266, 351 S.E.2d 1, 13 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987); see also infra discussion of Claim J. Pruett's confession was consistent with physical evidence at the scene, and testimony placing him at the victim's home the night of the murder.

Wilma Harvey was found with her hands tied so firmly behind her back that ligature marks remained on her arms and wrists. Trial Tr. V at 1077-78. A long sock was knotted tightly across her mouth and also knotted behind her head. It alone would have caused her death, because it pressed her tongue back in her mouth, blocking her airway. Id. at 1076.

Harvey had seven stab wounds to her neck, 12 to her chest, and one to her abdomen. Several slash wounds were grouped on her neck and her left hand. There were also cuts ranging from superficial to perforating, i.e., they passed through her entire body or limb. The stab wounds grouped around the neck penetrated her windpipe, major veins and arteries, and the floor of her mouth. Id. at 1069-75. Many of the individual stab wounds would have been fatal by themselves. Id. at 1075.

Wilma Harvey's body was found this way on her blood-soaked bed. Blood was found spattered in other places in her bedroom and adjacent bathroom. Trial Tr. IV at 926-30. There was no evidence of a forced entry. Id. at 930. Pruett's fingerprint was found on the inside of Harvey's glasses, and his palmprint was found on the headboard of Harvey's bed. Id. at 1000-01.

Shortly after his confession, Pruett consented to a search of his home. He also led police to assorted storm drains in the area, where police recovered defendant's T-shirt, underwear and pants, as well as silver coins he said he had taken from Harvey's home. See id. at 971-76.

Defendant's pants were found to have a semen stain on them from a "Type AB secretor," or a person with Type AB blood who tends to "express" blood type in other body fluids, such as semen. See id. at 1029, 1035. Pruett is a Type AB secretor. Id. at 1035.

Several items of Pruett's clothing were stained with blood consistent with Wilma Harvey's. Id. at 1044-53. Approximately 2.5% of the general population has the same blood type as Wilma Harvey had. Id. at 1053.

The Supreme Court of Virginia affirmed petitioner's convictions in all respects; it also denied a petition for rehearing, and the United States Supreme Court denied certiorari. Pruett v. Commonwealth, 232 Va. 266, 351 S.E.2d 1 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987). The United States Supreme Court later denied a petition for rehearing.

Pruett next filed a habeas corpus petition in the Circuit Court of the City of Virginia Beach, where he had been convicted. By order of June 14, 1988, the circuit court dismissed all petitioner's substantive allegations and some claims of ineffective assistance of counsel, and set a plenary hearing on the remaining ineffective assistance claims. The circuit court entered findings of fact and conclusions of law on March 6, 1989, and dismissed the petition in full by final order of March 27, 1989.

Pruett filed a petition for appeal raising most of the same allegations as the initial petition. The Virginia Supreme Court refused the petition, and the United States Supreme Court denied certiorari. ___ U.S. ___, 110 S.Ct. 2194, 109 L.Ed.2d 522 (1990).

The facts will be discussed in more detail as the arguments warrant. First, however, the Court will summarize the claims in this petition, and the concepts of exhaustion and procedural default, which preclude this Court's review of all or part of many of the claims.

II The Claims

Pruett advances 12 arguments about the unlawfulness of his death sentence and/or conviction.1 They are as follows:

A. Pruett's death sentence was based on impermissible evidence of victim impact and victim's character; any procedural default was caused by ineffective assistance of trial and appellate counsel.
B. Petitioner was denied a "competent and appropriate" pretrial psychiatric evaluation; any procedural default was caused by ineffective assistance of trial and appellate counsel.
C. The death sentence was based on extraneous, unreliable and irrelevant information purportedly offered to support non-statutory aggravating circumstances; any procedural default was caused by ineffective assistance of trial and appellate counsel.
D. Trial court improperly denied requested jury instruction on the lesser-included offense of first-degree murder; any procedural default was caused by ineffective assistance of trial and appellate counsel.
E. Penalty phase instructions were insufficient to guide jurors in performing their sentencing duties, in that the court:
1) failed to instruct the jury it must unanimously find at least one aggravating circumstance to impose death;
2) failed to instruct on the definition of mitigation generally;
3) failed to instruct on specific mitigating circumstances listed in Virginia Code § 19.2-264.4(B) that were supported by evidence;
4) failed to instruct on the nonstatutory mitigating circumstances supported by evidence;
5) failed to instruct adequately on the definition of outrageously or wantonly vile, horrible, or inhuman as an aggravating circumstance;
6) failed to instruct that the jury must consider mitigating evidence;
7) failed to instruct that "the defendant need not prove mitigating evidence beyond a reasonable doubt;"
8) improperly submitted a verdict form which did not inform the jury that it had to unanimously find at least one aggravating circumstance beyond a reasonable doubt; and
9) improperly submitted a verdict form which did not provide for the consideration of mitigating circumstances supported by the evidence.
Any procedural default was caused by ineffective assistance of trial and appellate counsel.
F. Prosecutorial misconduct denying Pruett due process of law, and rendering the sentencing unreliable, in violation of the sixth, eighth and fourteenth amendments, in that the prosecutors:
1) asked during voir dire whether the prospective juror would hold the Commonwealth to a higher burden than reasonable doubt, based on the possibility of a death sentence, to the jury panel's confusion;
2) improperly discussed plans to introduce evidence of aggravating circumstances during the sentencing phase, even before the guilt phase of trial had commenced;
3) improperly discussed the victim's character in the same opening statement;
4) later offered the victim's husband's testimony as to the victim's character, during the guilt phase of trial;
5) referred to such evidence during closing arguments, and claimed Pruett butchered the victim solely to eliminate her as a witness, "despite the absence of any evidentiary support for this conclusion;"
6) argued to the jury that Pruett conceded guilt at voir dire;
7) argued at the rebuttal closing that the jury should show Pruett the same mercy he showed the victim, implying that "because the victim received no trial rights, Pruett was not entitled to those rights either," and calling on the jury to compare the relative worth of Pruett's life and the victim's;
8) called during sentencing the husband of a former alleged victim to testify to how his wife was killed;
9) argued at closing of sentencing that death by electrocution was appropriate simply because Pruett was convicted, and generally "intruded on the precise function for which the jury was empaneled;"
10) commented at sentencing on Pruett's lack of remorse for and the heinousness of both the murder at

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