Ramdass v. Angelone, CIV. A. 2:96CV831.

• Decision Date: 14 August 1998
• Docket Number: No. CIV. A. 2:96CV831.,CIV. A. 2:96CV831.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Bobby Lee RAMDASS, Petitioner, v. Ronald J. ANGELONE, Director of Virginia Department of Corrections, Respondent.

28 F.Supp.2d 343

Bobby Lee RAMDASS, Petitioner, v. Ronald J. ANGELONE, Director of Virginia Department of Corrections, Respondent.

No. CIV. A. 2:96CV831.

United States District Court, E.D. Virginia, Norfolk Division.

August 14, 1998.

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Katherine P. Baldwin, Assistant Attorney General, Office of the Attorney General, Capital Habeas Litigation Section, Richmond, VA, for Ronald J. Angelone.

John M. Ryan and Nash F. Bilisoly, Vandeventer, Black, Meredith and Martin, LLP, Norfolk, VA, Michele J. Brace, Robert Edward Lee, Jr., Mark E. Olive, Virginia Capital Representation Resource Center, Richmond, VA, for Bobby Lee Ramdass.

OPINION AND FINAL ORDER

JACKSON, District Judge.

In January, 1993, Petitioner was convicted in the Circuit Court of Fairfax County, Virginia for the September, 1992 murder of Mohammad Z. Kayani, a convenience store clerk. Pursuant to the jury's recommendation, on April 2, 1993, the court sentenced Petitioner to death. Subsequently, Petitioner exercised his state appeals to no avail. On March 11, 1997, Petitioner filed an amended petition for a federal writ of habeas corpus, pursuant to 28 U.S.C. § 2254,¹ alleging violations of federal constitutional rights during his conviction and sentencing. This matter comes before the Court on Respondent's April 28, 1997 motion to dismiss the petition. On June 3, 1997, Petitioner filed a response to Respondent's motion to dismiss. On June 26, 1997, Respondent filed a reply to Petitioner's response.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 29 of the Rules of the United States District Court for the Eastern District of Virginia, the matter was referred to a United States Magistrate Judge for Report and Recommendation ("R & R"). On February 27, 1998, the Magistrate Judge filed his R & R. He found merit in one ground in the petition and recommended that the motion to dismiss be denied and that Petitioner's case be remanded for resentencing.

By copy of the R & R, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On March 30, 1998, this Court received "Petitioner's Objections to Magistrate Judge's Report and Recommendation" and "Respondent's Objections to the Magistrate Judge's Report and Recommendation." On April 13, 1998, both parties filed respective replies to the objections.

With some exceptions, Petitioner objects to the Magistrate Judge's recommendations to deny certain claims on the basis of procedural default. Of the claims the Magistrate Judge addressed on the merits, Petitioner does not contest the ultimate recommendation to order Petitioner's resentencing; however, he does object to the recommendations to deny the remaining claims on the merits. Further, Petitioner maintains that he is entitled to conduct discovery and present evidence on his claims which were denied on the merits. Respondent disagrees with the standard the Magistrate Judge utilized in concluding that certain claims were not procedurally defaulted. Additionally, Respondent objects to the ultimate recommendation to remand Petitioner's case for resentencing. Both parties object to the standard of review the Magistrate Judge applied when evaluating claims on the merits.

Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the Court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the Magistrate Judge's R & R to which the parties specifically objected. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

I. FACTS AND PROCEDURAL HISTORY

The R & R contains a detailed statement of the facts surrounding the crime, Petitioner's conviction and sentencing, and subsequent state appeals. (R & R 2-17.) The Court adopts the Magistrate Judge's explication of facts, with some modifications. The facts and procedural history are as follows.

A. Facts

During the night of September 1, 1992, and early morning of September 2, 1992, Petitioner and Darrell Wilson, both armed with pistols, were returning home in a car with three other men, Shane Singh,² Edward O'Connor, and Candelerio Ramirez, after abandoning a plan to rob persons at a Roy Rogers restaurant in Fairfax County. The restaurant was closed. Instead, the men, including Petitioner, decided that they would rob persons at a 7-Eleven store on Buelah Street in Fairfax County.

Near one o'clock on the morning of September 2, 1992, the five men entered the 7-Eleven store. Petitioner entered first and "drew" his pistol on Kayani, a clerk who was behind the cash register. Wilson, who also displayed his pistol, ordered all the customers to lie on the floor and to not look at him. The other three men, who were unarmed, took the customers' wallets, money from the cash register, and cigarettes, Kool Aid and lottery tickets from the store's stock.

After Petitioner ordered Kayani to open the safe, Kayani knelt down next to the safe and unsuccessfully tried to open it. Petitioner squatted next to Kayani and yelled at him to open the safe "or I'll blow your f____ head off.³" Ramdass v. Commonwealth, 246 Va. 413, 437 S.E.2d 566, 568 (Va.1993). At approximately the same time, Wilson fired his pistol at one of the customers lying on the floor. (1/27/93 Tr. at 206-07.) Immediately thereafter, Singh, standing behind Petitioner, saw Petitioner shoot Kayani in the head on his second attempt to get the weapon to fire. (1/27/93 Tr. at 211-12.) Testifying about the precise moment of the shooting, Singh stated that Petitioner "[c]licked it once and it didn't go off, clicked it again and it went off." (Id.)

Just after Petitioner shot Kayani, Ramirez testified that he returned from a back room in the store. Ramirez saw Petitioner laughing as he stood over Kayani's body. (1/27/93 Tr. at 145.)⁴ Shortly thereafter, Ramirez opened the front door and Wilson, Singh, and O'Connor ran out. As Ramirez held the door open, he urged Petitioner to "[c]ome on." (Id. at 146.) However, Petitioner was "clicking the gun at the people on the floor" and told Ramirez to "[s]hut up or I'll put one in you." (Id.) One of the customers also heard the clicking of the gun as Petitioner left. (1/27/93 Tr. at 125, 129-30.)

When they got in the car, Ramirez heard Petitioner ask Wilson, "[w]hy didn't you get rid of the people on the floor?" (Id. at 146.) After the men divided the robbery proceeds at Singh's home, Petitioner told Ramirez, "[d]on't tell anybody about this [o]r I'll kill you and I'll kill your whole family." (1/27/93 Tr. at 146-47.)

Singh, a co-owner of the gun with Petitioner, testified that the gun would not fire unless held at a certain angle because the bullets in the cylinder were not the right size for the gun. (Id. at 213.) Singh was corroborated by Julian Jay Mason, Jr., a forensic scientist specializing in firearms identification, who later examined and test-fired the gun. (Id. at 245, 248.) Mason testified that the 9 millimeter cartridges Petitioner used in the gun were smaller than the .38 caliber cartridges designed for the gun. Consequently, when the gun's muzzle was pointed down, the 9 millimeter cartridges slid too far forward in the cylinder to be struck by the firing pin. (Id. at 250-51.) Mason further testified that when the muzzle was pointed up, the cartridges slid back closer to the firing pin, and the gun could be fired. (Id. at 251.)

On direct, after stipulating as to her expertise, the medical examiner testified that the bullet which killed Mr. Kayani entered the left side of his head, just above the left ear, traveled forward, upward and rightward exiting out the right side of his head. (Id. at 99-100.) On cross examination, the medical examiner was questioned in more detail about the track of the bullet through the head and revealed that powder burns and debris were found on Kayani's head. (Id. at 102.)

Based on the evidence, the jury convicted Petitioner of capital murder and the use of a firearm in the commission of a felony. The case proceeded to the capital sentencing phase. The Commonwealth, in seeking the death penalty, relied solely upon the "continuing serious threat to society" condition, also known as "future dangerousness." In support of its position, the Commonwealth introduced evidence of Petitioner's use of a firearm and participation in the robbery of a Pizza Hut on August 25, 1992; robbery on August 29, 1992, of a hotel night clerk, who was physically beaten by Petitioner and threatened with a gun during the robbery; use of a firearm and robbery of a Domino's Pizza restaurant on August 30, 1992; and a second robbery and attempted murder, on August 30, 1992, of a taxi driver, who was shot in the head by Petitioner. At the time of trial, Petitioner had been convicted of the Pizza Hut and the Domino's Pizza crimes and formally sentenced for the Pizza Hut robbery. At the time judgment was imposed by the court for the 7-Eleven crimes, Petitioner had additionally been convicted and sentenced for the hotel robbery and formally sentenced for the Domino's robbery.

In opening statements, which had been reserved, defense counsel argued that Petitioner need not be sentenced to death on the basis of future dangerousness because he was already required to serve at least 99 years in jail. The length of the term precluded release and eliminated any future threat to society. Toward the end of the opening, trial counsel stated: "Bobbie Lee Ramdass was a bad boy. He's a bad man. He's committed crimes of violence in the past. He won't stand up here and tell you that he won't commit crimes of violence in the future." (1/29/93 Tr. 98.)

Trial counsel informed the jury of Petitioner's extensive juvenile record. Beginning in 1985...