Rambo v. Dir., Dep't of Corr.

• Decision Date: 04 May 2012
• Docket Number: Civil Action No. 7:12-cv-00034
• Court: U.S. District Court — Western District of Virginia
• Parties: ROBERT EARLE RAMBO, Petitioner, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, Respondent.

ROBERT EARLE RAMBO, Petitioner,

v.DIRECTOR, DEPARTMENT OF CORRECTIONS, Respondent.

Civil Action No. 7:12-cv-00034

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

Dated: May 4, 2012

MEMORANDUM OPINION

By: Hon. Jackson L. Kiser

Senior United States District Judge

Robert Earle Rambo, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner argues that ineffective assistance of counsel and error by the Court of Appeals of Virginia caused his unlawful conviction. Respondent filed a motion to dismiss, and petitioner responded, making the matter ripe for disposition. After reviewing the record, I grant respondent's motion to dismiss and dismiss the petition.

I.

A.

A jury in the Circuit Court of the City of Lynchburg ("Circuit Court") found petitioner guilty of second-degree murder, use of a firearm in the commission of a murder, and discharging a firearm in an occupied building.¹ The Circuit Court sentenced petitioner on April 14, 2006, to, inter alia, forty-three years' imprisonment. The Court of Appeals of Virginia affirmed the convictions, and the Supreme Court of Virginia refused petitioner's petition for appeal on September 24, 2008.

Petitioner filed a state habeas petition with the Circuit Court on September 23, 2009. Petitioner argued five grounds for relief:

(1) Counsel failed to reasonably and adequately cross-examine and impeach key Commonwealth witness Joseph Johnson, Jr., particularly by proper utilization of Johnson's material contradictions between his trial testimony and his prior testimony to a special grand jury;

(2) Counsel unjustifiably prejudiced petitioner by introducing into evidence the otherwise-inadmissible and highly prejudicial out-of-court statements of Melissa Burgess by failing to have apprised himself of the controlling law regarding redaction of statements and by failing to have thereupon moved the trial court to redact the prejudicial otherwise-inadmissible portions of the statements;

(3) Counsel failed to move to withdraw upon being exposed as having knowingly and intentionally misrepresented to the jury and the court the content of the highly prejudicial out-of-court statements of Melissa Burgess, having thereby put himself in jeopardy of being held in contempt of court and thereafter refrained from arguing the well-established law in Virginia that such statements may be appropriately redacted upon request and failed to inform and discuss with petitioner the conflicts of interest;

(4) On January 19, 2005, counsel failed to object to the Circuit Court's failure to fully, fairly, and accurately instruct the jury as to the law regarding malice and heat of passion, and counsel failed to request correct jury instructions on this matter; and

(5) After the jury's January 19, 2005, verdicts on guilt or innocence, counsel failed to move to set aside the jury's guilty verdicts on the ground that those verdicts were impermissibly inconsistent and that the combination of all five verdicts necessitated the unsustainable conclusion that the petitioner had malice but there had been no "intent to commit murder or involuntary manslaughter" and no "specific intent to kill."

On April 22, 2011, the Circuit Court determined petitioner did not receive ineffective assistance of counsel and dismissed the petition. Petitioner appealed to the Supreme Court of Virginia, which refused the appeal on October 27, 2011, and dismissed a petition to rehear on January 19, 2012, as untimely.

Petitioner filed the instant petition on January 19, 2012, and amended the petition on February 6, 2012, to include an affidavit and letters to support petitioner's second federal habeas claim. Petitioner's federal claims (1) through (4) are the same claims (1) through (4) presented to the Supreme Court of Virginia during habeas review. Petitioner's federal claim (5), whichpetitioner presented to the Supreme Court of Virginia during direct review, argues:

(5) The Court of Appeals erred in affirming the trial court's decision to decline to dismiss the indictment when a purpose of the special grand jury had been to compel testimony which could not be compelled because it exceeded the scope of the special grand jury's powers and impermissibly sought to compartmentalize the testimony without cross-examination.

B.

The Circuit Court reviewed the trial record and recited the following facts to support the dismissal of petitioner's state habeas petition. See 28 U.S.C. § 2254(d) (mandating deferential review of state court's determination of facts); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (holding that a federal court can rely on a reasoned state court judgment resting primarily on federal law when later unexplained state court orders uphold that judgment); Jones v. Murray, 947 F.2d 1106, 1110 (4th Cir. 1991) (stating written findings of historical fact by the state court are presumed to be correct and entitled to deference unless shown to be erroneous).

On the evening of July 1, 2005, Robert Rambo and his long-time girlfriend and mother of his three children, Melissa Burgess, had an argument over the fact that Rambo would have to work on July 3rd. Afterward Burgess left for her mother's house to calm down.

While Burgess was at her mother's house, her brother, Joseph Johnson, also known as "Buddy," came by with his friend Anthony Keith Nance. Burgess agreed to go out with Johnson and Nance to have a few drinks. Meanwhile, Rambo stayed at home with their children.

Burgess, Johnson and Nance left in Nance's work van, with Melissa in the front passenger seat, Nance driving and Johnson sitting on a cooler in the back. They first went to Rub's, where Johnson and Nance drank beer and Melissa had "Blue Motorcycles," a drink consisting of four different kinds of liquor. They stayed there about an hour, and, according to Johnson's trial testimony, Nance and his sister were talking and having a good time.

At the second bar, Marilyn's, they all drank beer because no liquor was served there. . . . At Marilyn's, Nance told Melissa she had pretty hair and began to stroke her hair; Melissa thanked him and did not appear upset.

They next went to O'Charley's restaurant where they drank more mixed drinks; Johnson testified that he and Nance drank tequila and his sister Melissa "was drinking Blue Motorcycles." They sat in a booth at O'Charley's until about 2:00 a.m.; Nance and Burgess sat together on one side of the booth and appeared to be getting along "real good" and were "hugging and talking." According to . . . Ratliff, the bartender at O'Charley's, Burgess and Nance were "very close together," and were laughing and talking and drinking Blue Motorcycles. Johnson said to Ratliff, in Burgess' and Nance's presence, that they were going to get a room, and Burgess had no negative reaction to that comment.

At 2:00 a.m. when the bar closed, Nance, Burgess, and Johnson went out to Nance's van. They joked about going to the beach before Johnson crawled into the back of the van and fell asleep.

Jeff Troy, the night manager at the Best Western Motel in Lynchburg, testified that Keith Nance checked into the motel about 3:00 a.m. on July 2, 2005, leaving a photocopy of his driver's license and his name and address with Troy. When Nance checked into the motel, he was away from his van for five minutes. When asked whether he wanted a smoking or non-smoking room, Nance thought for a minute and said "she may want to smoke, a smoking room." Troy then rented Nance Room 301, the room closest to the office.

Sometime later on, Johnson was awakened in the back of the van by Burgess and Nance, who played a trick on Johnson by telling him they were at the beach. However, Johnson quickly realized they were joking when he looked around and noticed the sign for a familiar Lynchburg restaurant, Myrt's. Johnson testified that his sister Melissa and . . . Nance both appeared to be in a good mood, and that she did not appear upset or nervous. They all went inside the room, where Johnson saw that "the covers were all messed up on the first bed to the right." They sat down, drank some beer and smoked some cigarettes. Nance's and Burgess's DNA were later identified on some of the beer cans and cigarette butts left in the room.

A short time later, Burgess' cell phone rang, and she became very frightened and said that Rambo knew where she was. She said she wanted to go . . . and she left the motel room. Johnson decided to go to sleep.

According to Jeff Troy, a few minutes later, Rambo pulled up and parked in the middle of the motel parking lot. Troy heard him yelling at Melissa Burgess, saying "which room is he in"; Troy stated it "seemed like she was trying to calm him down." Ultimately, Rambo and Burgess went to Room 301 where Nance and Johnson were. Rambo put his thumb over the peephole and began to bang on thedoor. When no one answered, he had Burgess come over to the door to call for her brother to open the door. . . .

Johnson testified that about fifteen minutes after Melissa left the room, someone was "banging on the door." Keith Nance started to go to the door, but Johnson told him "to let it go" because he knew it was probably Rambo. Johnson looked out the peephole, but Rambo had his thumb over the hole. When Burgess then called "Buddy, Buddy, Buddy" through the door, Johnson thought that his sister was in trouble from Rambo, and he opened the door for her. She came in with a "frightful look on her face" and Rambo came in behind her.

Rambo was armed with a .380 caliber semiautomatic pistol and went straight over to the bed and fired three shots at Nance as he lay on the bed. Johnson stated that Nance "didn't know what was going on. He leaned up out of his sleep when he— maybe after the first shot about six to twelve inches. And the last word to come out of his mouth . . . was wha [sic] and that's it." Johnson testified that Rambo "went right between . . . my sister and me, and went over to that

...