Quesinberry v. Taylor

• Decision Date: 07 December 1998
• Docket Number: No. 98-3,98-3
• Citation: 162 F.3d 273
• Parties: George Adrian QUESINBERRY, Jr., Petitioner-Appellant, v. John TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 273

162 F.3d 273

George Adrian QUESINBERRY, Jr., Petitioner-Appellant, v. John TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.

No. 98-3.

United States Court of Appeals Fourth Circuit.

Argued Sept. 21, 1998.

Decided Dec. 7, 1998.

ARGUED: Albert Peter Brodell, Williams, Mullen, Christian & Dobbins, Richmond, Virginia, for Appellant. Donald Richard Curry, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Patrick R. Hanes, Williams, Mullen, Christian & Dobbins, Richmond, Virginia; Donald R. Lee, Jr., MacAuley, Lee & Powell, Richmond, Virginia Before NIEMEYER and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Robert E. Lee, Jr., Virginia Capital Representation Resource Center, Richmond, Virginia, for Appellant. Mark L. Earley, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Affirmed by published opinion. Senior Judge BUTZNER wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

OPINION

BUTZNER, Senior Circuit Judge:

George Quesinberry appeals the district court's denial of his petition for a writ of habeas corpus. Quesinberry was convicted of capital murder, breaking and entering with the intent to commit larceny and robbery, and the use of a firearm in the commission of a burglary, robbery, and capital murder. He was sentenced to death. We affirm the district court's judgment.

I

The facts are briefly outlined in this opinion; a full recitation maybe found in the Virginia Supreme Court opinion on direct appeal. Quesinberry v. Commonwealth, 241 Va. 364, 368-70, 402 S.E.2d 218, 221-22 (1991). Absent exceptional circumstances, a state court's findings of fact are binding on this court. Sumner v. Mata, 449 U.S. 539, 546-47 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

On September 25, 1989, Quesinberry and Eric K. Hinkle broke into the warehouse of Tri City Electric Company. Although they did not expect to find anyone at the warehouse, Quesinberry had with him a gun which he had taken from his step-mother's home. They arrived at the warehouse at approximately 6:00 a.m. and pried open a rear door with a screwdriver. While in the building Quesinberry and Hinkle stole a pair of walkie-talkies, three rolls of stamps, and rolls of coins.

When Thomas L. Haynes, the owner of Tri City, found the intruders in a warehouse office, he asked them what they were doing. Quesinberry told Hinkle to shoot Haynes, but Hinkle did not fire. Quesinberry took the gun from Hinkle and shot Haynes twice in the back. As Hinkle and Quesinberry were leaving the warehouse, they passed by Haynes, who was lying on the floor and tried to push himself up. Quesinberry hit Haynes on the head at least twice with the pistol.

Quesinberry and Hinkle learned of Haynes' death from a television report. Hinkle turned himself in later that day and gave a report that implicated Quesinberry. Quesinberry was arrested, and after being advised of his rights gave a detailed statement to the police which described his role in the murder.

On January 22, 1990, a Chesterfield County, Virginia, grand jury indicted Quesinberry for capital murder, breaking and entering with the intent to commit larceny and robbery, and the use of a firearm in the commission of burglary, robbery, and murder. On May 2, 1990, Quesinberry was convicted of all charges. On May 4, 1990, during the penalty phase of the trial, the jury found that the statutory aggravating circumstances of "future dangerousness" and "vileness" applied to Quesinberry, and he was sentenced to death. The Supreme Court of Virginia affirmed the convictions and sentence of death. Quesinberry v. Commonwealth, 241 Va. 364, 402 S.E.2d 218 (1991). The United States Supreme Court denied certiorari. Quesinberry v. Virginia, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991).

Quesinberry filed his state habeas corpus petition with the help of two court-appointed attorneys on April 20, 1993. On March 3, 1994, the petition was denied. The Supreme Court of Virginia denied his appeal on December 8, 1994, and his petition for rehearing on January 13, 1995. The United States Supreme Court denied certiorari on June 19, 1995. Quesinberry v. Murray, 515 U.S. 1145, 115 S.Ct. 2585, 132 L.Ed.2d 834 (1995).

On April 19, 1996, Quesinberry, with the assistance of court-appointed counsel, filed his first federal petition for a writ of habeas corpus. On October 20, 1997, the district court dismissed the petition, explaining its reasons in a 53-page memorandum opinion. It subsequently granted a certificate of probable cause. This appeal followed.

Quesinberry raises four issues, which he describes as follows:

1. The district court erroneously held that Quesinberry could not establish cause to explain the procedural default resulting from the refusal of state habeas counsel to pursue meritorious claims.

2. The district court erred when it applied a procedural bar to Quesinberry's claim that the trial court violated Quesinberry's constitutional rights when it (i) inadequately instructed jurors regarding Quesinberry's Fifth Amendment rights, (ii) received the jurors' verdicts based on the inadequate instructions, (iii) released the jurors from the guilt phase proceedings, (iv) denied Quesinberry's request for a mistrial, and (v) inadequately recharged the jurors.

3. The district court erred in holding as a matter of law that trial counsel were not ineffective in failing to interview Eric Hinkle or otherwise discover the information he possessed regarding the trial issues.

4. The district court erred in finding that good cause had not been shown to grant Quesinberry's discovery-related motions.

We review the district court's conclusions of law de novo, and we will not set aside its findings of fact unless they are clearly erroneous. Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir.1997); Fed. R. Civ.P. 52. We agree with the district court that the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) is inapplicable because Quesinberry's federal petition for a writ of habeas corpus was pending prior to the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).

II

After he was convicted, Quesinberry appealed to the Virginia Supreme Court, but he did not allege ineffective assistance of his trial counsel. Quesinberry then filed a petition for habeas corpus in state court, complaining for the first time about numerous deficiencies in his counsel's representation during trial.

Quesinberry's first issue in his federal proceeding is premised on what he calls the abandonment of his state habeas counsel who declined to appeal to the state appellate court several claims including ineffective assistance of counsel during his trial. The federal district court, finding no cause, held that Quesinberry's claims were defaulted because he did not assign them as error in his petition to the Virginia Supreme Court pertaining to his appeal from the dismissal of his state habeas corpus. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)(requiring cause, among other reasons, for excusing a default). The difficulty with Quesinberry's first issue is the lack of a constitutional right to counsel in a collateral attack upon his conviction. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Inasmuch as Quesinberry had no constitutional right to counsel to represent him in state habeas proceedings, he cannot allege deficiencies of his state habeas counsel as a cause for excusing his default. Mackall v. Angelone, 131 F.3d 442, 446-49 (4th Cir.1997). In agreement with the district court, we are not persuaded by Quesinberry's arguments that we should depart from the clearly established precedent that brings about this result.

III

Quesinberry bases his second claim on the trial court's alleged infringement of his Fifth Amendment right not to testify. He asserts that the trial court did not properly instruct the jury on this issue.

At the beginning of the trial the state judge told the jury that Quesinberry might not testify and that if he did not testify "the Fifth Amendment of the Constitution prevented the jury from considering that." See Quesinberry, 241 Va. at 375, 402 S.E.2d at 225. During the course of the proceedings defense counsel presented an instruction that states "[t]he defendant does not have to testify. The exercise of that right cannot be considered by you." See Quesinberry, 241 Va. at 375 n.4, 402 S.E.2d at 225 n. 4. Quesinberry chose not to testify.

When the trial judge read the jury instructions, he inadvertently omitted the instruction that Quesinberry's failure to testify could not be held against him. Apparently neither the prosecution nor the defense called the omission to the judge's attention. After the jury returned its verdict of guilt in the first phase of the trial, the judge told the jury to go to lunch in the custody of the sheriff and reminded them:

[B]ecause the case is still going on and there are other matters of such severity that you must consider, do not talk among yourselves; do not let anybody talk to you; do not let anybody approach you; do not respond to any comments; try to avoid what would be inadvertent communication from anyone of any source.

See Quesinberry, 241 Va. at 374, 402 S.E.2d at 225. While at his own lunch, the trial judge realized that he had omitted to give the instruction pertaining to the defendant's right not to testify. The trial judge notified counsel of the omitted instruction. Quesinberry moved for a mistrial, and the judge denied the motion. The judge then told the jury: "You are instructed that the defendant does not have to testify. The exercise of that right cannot be considered by you." Quesinberry, 241 Va. at 376, 402 S.E.2d at 226. The judge also told the jury to consider this instruction along with the other...