Royal v. Netherland, Civil Action No. 3:96CV956.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation4 F.Supp.2d 540
Decision Date05 May 1998
Docket NumberCivil Action No. 3:96CV956.
PartiesThomas Lee ROYAL, Jr., Petitioner, v. J.D. NETHERLAND, Warden<SMALL><SUP>1</SUP></SMALL>, Respondent.

Robert J. Anello, Catherine M. Foti, Diana D. Parker, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York, NY, Barbara L. Hartung, Richmond, VA, for Petitioner.

Katherine Pharis Baldwin, Office of Atty. Gen., Richmond, VA, for respondents.


MERHIGE, District Judge.

This matter is before the Court on Respondent's Motion To Dismiss the petition for a writ of habeas corpus and Petitioner's Motion For Order Compelling Discovery. For the reasons set forth below, the Court will GRANT Respondent's Motion To Dismiss in its entirety and will DENY Petitioner's Motion For Order Compelling Discovery.


Mr. Royal was convicted of the capital murder of Kenneth Wallace, a Hampton City police officer. The Virginia Supreme Court, affirming Royal's conviction and sentence on direct appeal, stated the facts of the case as follows:

On Monday, February 21st, 1994, Thomas Royal, Yancy M. Mitchener, Eldred Acklin, and Willie Sanders met in the vicinity of Chesapeake Court Apartments near Wythe Shopping Center. Thomas Royal handed each of the other three a gun with the intention to kill Hampton police officer Curtis Cooper. These four persons started to cross Wythe Shopping Center and they did not see Officer Cooper but did see Officer Kenneth E. Wallace of the Hampton Police Department.

Thomas Royal pursued Officer Wallace, followed by Yancy M. Mitchener and Eldred Acklin. Willie Cardell Sanders hung back. Thomas Royal encountered Officer Wallace and fired two shots from a .380 caliber handgun at Officer Wallace while Officer Wallace was seated in his police cruiser on Pocahontas Place in Hampton, Virginia. Thomas Royal fled. Officer Wallace died as a result of a wound inflicted by Thomas Royal.

Yancy M. Mitchener and Eldred Acklin both fired at the marked police car hitting the car but not Officer Wallace. Both Mitchener and Acklin then fled following Thomas Royal. Royal, Mitchener, and Acklin rejoined Sanders back at the Chesapeake Court Apartments. All four eventually fled Hampton that night and spent it in a motel at Norfolk.

Royal v. Commonwealth, 250 Va. 110, 458 S.E.2d 575, 576 (1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996). The foregoing findings of fact are binding on this Court. See 28 U.S.C. § 2254(e)(1); Pope v. Netherland, 113 F.3d 1364, 1364 (4th Cir.) (citing Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), cert. denied, ___ U.S. ___, 118 S.Ct. 16, 138 L.Ed.2d 1048 (1997).


On September 19, 1994, Royal pleaded guilty in the Circuit Court of the City of Hampton to the capital murder of Officer Wallace and to one count of using a firearm in the commission of a felony. After a separate sentencing proceeding, the Court found Royal to be a future danger and imposed a sentence of death for capital murder and three years imprisonment on the firearm charge. Royal's convictions and sentence were affirmed unanimously by the Virginia Supreme Court on June 9, 1995. Royal, 250 Va. 110, 458 S.E.2d 575 (1995). Royal filed a petition for a writ of certiorari in the United States Supreme court that was denied on January 22, 1996. Royal v. Virginia, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996).

In July, 1995, pursuant to Va.Code Ann. § 19.2-163.7, the Hampton County Circuit Court appointed counsel to represent Royal in a state habeas corpus proceeding. Royal filed a petition for a writ of habeas corpus in the Virginia Supreme Court on March 22, 1996. On June 18, 1996, the Court dismissed the petition. Royal's petition for rehearing was denied on September 13, 1996.

Pursuant to Va.Code Ann. § 53.1-232.1(i), Royal was scheduled for an execution on November 26, 1996. On November 19, 1996, this Court stayed Royal's execution and appointed counsel to represent him in this action. Royal filed his petition in this court on April 28, 1997 and filed an Amended Petition ("Petition") on May 20, 1997.

A. Claims Presented In State Court
I. The guilty plea was not knowingly and voluntarily made:

A. He was not informed he was waiving a sentencing jury;

B. There was no factual basis for the plea, and he relied on "false" evidence;

II. The death sentence violated due process because it was based on evidence admitted in violation of a plea agreement;
III. The confession violated the Fifth and Sixth Amendments;
IV. The trial court unconstitutionally shifted the burden to Royal to disprove future dangerousness aggravator and future dangerousness aggravator is vague;
V. The trial court failed to give mitigating effect to evidence in Royal's favor;
VI. The trial court erred by allowing prosecution to present evidence of the capital murder during sentencing instead of limiting the prosecution's evidence on future dangerousness to the past criminal record of defendant;
VII. The evidence was insufficient to prove that Officer Wallace was killed for the purposes of interfering with his law enforcement duties;
VIII. The Commonwealth failed to timely produce exculpatory and impeachment material:

A. Officer Richards planted evidence to induce Royal to confess;

B. Statements possibly made to police by Royal's three accomplices;

IX. Virginia's former statutory capital punishment scheme violated due process and the Eighth Amendment because it did not provide for the option of life without parole:

A. Virginia system does not produce reliability in sentencing;

B. Virginia's capital punishment scheme violated the Eighth Amendment;

C. Virginia's capital punishment scheme, as applied to Royal, resulted in an arbitrary and capricious sentencing determination;

D. Virginia's capital punishment scheme, by creating anomalous situation in which non-recidivist murderers will be sentenced more severely than recidivist murderers violated the Equal Protection Clause;

E. Royal's death sentence is excessive and unconstitutional because a sentence of life imprisonment without possibility of parole with adequately incapacitate Royal;

X. The trial court erred in denying the motion for change of venue:

C.2 The court refused to use voir dire questions necessary to determine whether Royal could secure a fair trial;

XI. The trial court unconstitutionally sentenced Royal out of passion and prejudice;
XII. The trial court denied the motion to recuse;
XIII. The Virginia Supreme Court provides no meaningful appellate review;
XIV. The death penalty in Virginia is discriminatory and cruel and unusual
XV. Counsel were ineffective:

A. Pre-trial

1. Failed to investigate or pursue defenses:

a. Triggerman defense;

b. Lack of intent to interfere with Officer Wallace's performance of his official police duties;

c. Intoxication and mental disabilities;

d. Lack of intent for capital murder;

2. Failed to advise Royal of possible defenses and rights waived by pleading guilty;
3. Failed to introduce the signed request for counsel form;
B. The state failed to provide competent counsel:

1. Only one attorney at the preliminary hearing;

2. Richardson was not qualified;

3. Richardson was a part-time judge;

4. Pre-trial preparation was insufficient;

5. Failed to request funds for investigation;

6. Failed to request that Royal's first-degree murder charge be tried after the capital murder charge;

7. Failed to seek recusal of the judge until after the sentencing;

C. Ineffective at the plea:

1. Stipulated to inaccurate facts;

2. Failed to limit evidence to be introduced at sentencing;

D-1.3 Ineffective at sentencing:

1. Failed to argue that Court could not sentence Royal to death because stipulation did not establish requisite elements of capital murder;

2. Failed to present or raise evidence:

a. Psychiatric and social background;

b. Intoxication;

D-2. Ineffective on appeal; and

XVI. Ineffective assistance of mental health expert.

B. Claims Not Presented In State Court

XVII.4 Due Process was violated by the use of the planted evidence;

A. The government planted evidence;

B. Royal's requests for assistance of counsel were denied during his interrogation;

C. The government used the planted evidence to extract a confession;

D. The government's general use of planted evidence in its investigation and prosecution;

XVIII. Royal is factually innocent:

A. Not the triggerman;

B. Lack of premeditation; and

C. Actual innocence of the death penalty.


On April 24, 1996, over one year before Royal filed his federal habeas petition, the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (the "AEDPA"), became effective. Title I of the Act, entitled "Habeas Corpus Reform," substantially alters the substantive law governing habeas corpus petitions. Sections 101 to 106 of the Act modify preexisting habeas corpus procedures contained in Chapter 153 of the Judicial Code, 28 U.S.C. §§ 2241-2255. Section 107(a) of the Act enacts a new Chapter 154, 28 U.S.C. §§ 2261-2266, which applies to habeas petitions in capital cases.

A. Applicability of Chapter 154 Amendments

For the reasons set forth in Judge Payne's well-reasoned opinion in Satcher v. Netherland, 944 F.Supp. 1222, 1238-40 (E.D.Va. 1996), aff'd in part rev'd in part sub nom. Satcher v. Pruett, 126 F.3d 561 (4th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997), Chapter 154 of the AEDPA is inapplicable to Royal's petition.

B. Applicability of Chapter 153 Amendments

Chapter 153 of the Act, §§ 101-106, effects a number of procedural changes to previous habeas...

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