Pruett v. Thompson

• Decision Date: 25 May 1993
• Docket Number: No. 92-4002,92-4002
• Citation: 996 F.2d 1560
• Parties: David M. PRUETT, Petitioner-Appellant, v. Charles THOMPSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1560

996 F.2d 1560

David M. PRUETT, Petitioner-Appellant, v. Charles THOMPSON, Respondent-Appellee.

No. 92-4002.

United States Court of Appeals Fourth Circuit.

Argued June 17, 1992.

Decided May 25, 1993.

Russell Frank Canan, Washington, DC, argued (Curt S. Hansen, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, argued (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

David Mark Pruett attacks a Virginia state court judgment sentencing him to death. The United States District Court for the Eastern District of Virginia denied his petition for a writ of habeas corpus. We affirm.

I.

On February 12, 1985, Pruett went to the home of his friends Richard and Wilma Harvey. ¹ Richard Harvey was out of town, and Pruett stopped in, ostensibly to check on Mrs. Harvey. Pruett chatted with Mrs. Harvey for several minutes. When the paperboy came to the door to collect, Mrs. Harvey paid him from a grey cashbox. Upon seeing Mrs. Harvey take money from the cashbox, Pruett formed the intent to rob Mrs. Harvey. Mrs. Harvey and Pruett continued to talk until she said that she needed to get ready to go to church. Pruett asked for permission to use the bathroom.

While in the bathroom, Pruett decided that he "wanted some sex" and "told himself 'well go do it.' " He went upstairs and told Mrs. Harvey that he "wanted some sex." At first Mrs. Harvey refused, but Pruett drew a knife that he had brought with him and forced her to submit. After he raped Mrs. Harvey, Pruett bound her hands and feet and used a sock to tie a gag over her mouth. Pruett then stabbed Mrs. Harvey several times and cut her throat open. The medical examiner counted twenty-nine stab wounds in all, several of which would have been fatal alone. The Supreme Court of Virginia did not articulate a reason for the initial stabbing, but found that Pruett cut Mrs. Harvey's throat when she tried to kick him while he was stabbing her. See 351 S.E.2d at 13.

After he killed Mrs. Harvey, Pruett ransacked the house looking for money. He took all the money that he could find, including the money in the grey cashbox. He then disposed of his blood-soaked clothes and the knife. Mrs. Harvey's body was discovered on her bed by relatives the next day.

On February 14 the police interviewed Pruett twice. During the first interview at 1:00 a.m., Pruett admitted visiting Mrs. Harvey, but denied any knowledge about the killing. In response to a question about whether he had any idea of who might want to kill Mrs. Harvey, Pruett stated, "I can't understand it. I, I can't feel that anybody could." He also said that he was more anxious to find the killer than the police were and that he would take a polygraph test. After the police discovered that Pruett's fingerprints had been found on the headboard of Mrs. Harvey's bed and on her eyeglasses, they again questioned Pruett. Pruett confessed to robbing, raping, and killing Mrs. Harvey, and he also confessed to robbing and killing Debra McInnis in 1975, a friend he knew through working at Kentucky Fried Chicken. ²

Pruett was charged by indictments with the capital murder of Mrs. Harvey during the commission of, or subsequent to, rape; rape of Mrs. Harvey; and robbery of Mrs. Harvey. A jury convicted Pruett on all three charges and fixed his punishment for rape at life imprisonment and for robbery at 75 years in prison. The same jury then heard evidence in aggravation and mitigation of the murder charge and returned a sentence of death. On March 26, 1986, the trial court imposed the sentences fixed by the jury. The Virginia Supreme Court affirmed the judgments and sentence of death. 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 court found that the death penalty was appropriate because the crime fit both the "vileness" prong and the "future dangerousness" prong of Virginia's capital murder statute. 351 S.E.2d at 12-14; see also Va.Code Ann. § 19.2-264.2 (1977).

Pruett sought post-conviction relief in the Circuit Court of the City of Virginia Beach, Virginia by filing a petition for a writ of habeas corpus. On June 14, 1988 the circuit court dismissed certain counts in the petition and ordered an evidentiary hearing on the remaining claims. The evidentiary hearing was held on October 18 and 19, 1988. The circuit court heard testimony from Dr. Tsao, the psychiatrist who had evaluated Pruett; Dr. Brown, a forensic psychologist; Mr. Stallings, the lawyer who represented Pruett at trial and on direct appeal; Dr. Fisher, another forensic psychologist; Pruett's mother and father; Mr. Phillips, the prosecutor at Pruett's trial; Mr. Dougherty, an associate at Mr. Stallings's firm who worked on Pruett's case and trial; Miss Weise, a nurse and medical administrator at the Virginia Beach Correctional Center; and Mr. Costigan, the psychiatric social worker at VBCC. 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. On November 16, 1989, the Supreme Court of Virginia refused a petition for appeal. On May 14, 1990, the United States Supreme Court denied certiorari. Pruett v. Thompson, 495 U.S. 940, 110 S.Ct. 2194, 109 L.Ed.2d 522 (1990).

Pruett filed his present action in the United States District Court for the Eastern District of Virginia on November 29, 1990. The petition contained a request for an evidentiary hearing. On August 19, 1991, the district court, without a hearing, entered its order granting the respondent's motion to dismiss the petition. Pruett v. Thompson, 771 F.Supp. 1428 (E.D.Va.1991) (mem.). Pruett appealed the final judgment and order of the district court on February 11, 1992.

In this appeal, Pruett raises five grounds: (1) The state trial court erred in not instructing the jury on the lesser-included offense of first degree murder during the guilt phase of the trial; (2) prosecutorial misconduct infected the trial and sentencing; (3) the jury instructions given at the penalty phase were inadequate; (4) Pruett received ineffective assistance of trial and appellate counsel; and (5) the district court abused its discretion under 28 U.S.C. § 2254 by failing to grant Pruett an evidentiary hearing on his habeas petition, and specifically, on the ineffective assistance of counsel claim. We will address each of Pruett's contentions in turn.

II.

Three of Pruett's assignments of error--the trial court's refusal to grant Pruett's request to instruct the jury on the lesser-included offense of first degree murder, prosecutorial misconduct at trial and at sentencing, and the adequacy of the penalty phase instructions--were procedurally defaulted. See Pruett v. Thompson, No. 890908 (Va. Nov. 16, 1989). In holding that each of these claims was precluded because the same was not raised either at trial or on direct review, the Virginia Supreme Court relied on Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975), which holds that non-jurisdictional challenges to a conviction may not be raised in a habeas corpus proceeding if they were not asserted at trial and upon direct appeal.

At trial Pruett offered an instruction on the lesser-included offense of first degree murder excluding the felony-murder theory of rape, necessarily proceeding on the theory that there had been consensual intercourse. The trial court refused the instruction. There simply was no evidence to support the giving of such an instruction and Pruett did not appeal the refusal to the Virginia Supreme Court. So that question is precluded from consideration here, having been precluded from further collateral consideration in Virginia, even if raised collaterally, by the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Pruett has not exhausted state remedies. This subject is mentioned in more detail in Part III of this opinion.

On direct appeal with respect to prosecutorial misconduct, Pruett raised only the question of the Commonwealth's Attorney's argument that Pruett's attorney had conceded guilt, which the Virginia Court held to be without merit. 351 S.E.2d at 10-11; Pruett v. Thompson, No. 890908, Petition for Appeal at 30-31 (Va. Nov. 16, 1989). Pruett does not pursue that issue in this court on the same theory, ³ however. He now, in his brief here, Brief of Appellant at 32-37, pursues an extensive list of claimed prosecutorial misconduct which was not presented to the Supreme Court of Virginia on direct appeal and so was procedurally barred from consideration by the Virginia courts on collateral review, even if there presented, by the rule of Parrigan. The claims on the present list have been procedurally defaulted for failure to exhaust state remedies, having been procedurally defaulted under state law. While the district court did consider the claim with respect to the Commonwealth's Attorney's argument that Pruett's attorney had admitted guilt and decided it was without merit for the reasons given by the Virginia Supreme Court, 771 F.Supp. at 1445, the question was not raised here and we do not consider it. The merits of the other claims of prosecutorial misconduct have been procedurally defaulted as we have set forth and we do not directly consider them also. ⁴

On direct appeal, the adequacy of the penalty phase instructions was raised only so far as the trial court had refused to instruct the jury that if the jury could not unanimously agree on the death penalty, the court must impose a life sentence under Va.Code Ann. § 19.2-264.4(E). The Virginia Supreme Court held that this should not have been the subject of an instruction because it was a procedural matter and it would have...