Spencer v. Murray

Decision Date28 February 1994
Docket NumberNo. 93-4002,93-4002
PartiesTimothy W. SPENCER, Petitioner-Appellant, v. Edward W. MURRAY, Director; Commonwealth of Virginia, Respondents-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit
*

ARGUED: William Theodore Linka, Boatwright & Linka, Richmond, Virginia, for Appellant.

Donald Richard Curry, Senior Asst. Atty. Gen., Office of the Attorney General, Richmond, Virginia, for Appellees.

ON BRIEF: Stephen D. Rosenthal, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellees.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Dr. Susan Hellams. The district court denied Spencer's petition for a writ of habeas corpus. We affirm.

I

Dr. Susan Hellams was a resident in neurosurgery at the Medical College of Virginia in Richmond. 1 She was murdered in her home on the night of October 2, 1987 or the early morning of October 3, 1987. The police were notified by her husband after he returned home and discovered her partially-clothed body on the floor of the couple's bedroom closet. Dr. Hellams's attacker apparently gained access to the house by cutting out a large portion of a second-story bedroom window screen.

The medical examiner testified at trial that the cause of Dr. Hellams's death was ligature strangulation, apparently caused by two belts found around her neck. The medical examiner also testified that Dr. Hellams sustained other injuries, including a fractured nose, a blunt force injury to the lower lip, various bruises and scrapes, and an injury consistent with one made by a shoe on the back of her right leg. In addition, the medical examiner had found fluid consistent with seminal fluid on her back and in the gluteal fold. The medical examiner also observed small mucosal tears of the anal ring, which were "consistent with the anus having been penetrated 'by a hard object, such as a penis.' " 238 Va. 563, 385 S.E.2d at 852.

The presence of spermatozoa was found on swabs taken from the vagina, rectum, and perianal area. Seminal fluid and spermatozoa also were found on Dr. Hellams's skirt and slip. The swab from the perianal area, as well as the stains on Dr. Hellams's skirt and slip, were examined by the Commonwealth's expert serologist and compared to Spencer's blood. Based on her analysis of identifiable secretions, the serologist testified at trial that the source of the secretions was a third party, because neither Dr. Hellams nor her husband could have produced the secretions. The serologist further stated that the secretions in the seminal fluid found on the skirt and slip were consistent with Spencer's secretion type and inconsistent with Dr. Hellams's husband's type. 2 The secretions in the seminal fluid found on the perianal swabs were consistent with a combination of Spencer's and Dr. Hellams's blood types and inconsistent with a combination of the blood types of Dr. Hellams and her husband.

A sample of Spencer's blood and a sample of the seminal fluid found on Dr. Hellams's slip were subjected to DNA analysis. The two samples matched. This evidence was admitted at trial.

Proceedings

The trial commenced in the Circuit Court of the City of Richmond, Manchester Courthouse, on January 17, 1989. The jury convicted Spencer of capital murder, rape, sodomy, and burglary. 238 Va. 563, 385 S.E.2d at 351. At the penalty phase of the trial, the jury fixed Spencer's punishment for the capital murder at death. Spencer appealed his convictions and death sentence to the Supreme Court of Virginia, which affirmed. Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989). The United States Supreme Court denied Spencer's petition for a writ of certiorari. Spencer v. Virginia, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990).

Spencer next filed a petition for a writ of habeas corpus with the state trial court on September 10, 1990. The petition was dismissed on November 15, 1990. Spencer v. Murray, No. ML2232 (Cir.Ct. for the City of Richmond, Manchester Courthouse, Nov. 15, 1990). The Supreme Court of Virginia affirmed. Spencer v. Murray, No. 910252 (Va. June 4, 1991). Spencer then turned to the United States District Court for the Eastern District of Virginia. The district court denied his habeas petition. Spencer v. Murray, No. 3:92CV160 (E.D.Va. Jan. 21, 1993). Spencer then asked the district court, on February 11, 1993, for a Certificate of Probable Cause to appeal to this court. That request was denied. Spencer v. Murray, No. 3:92CV160 (E.D.Va. March 30, 1993).

Spencer filed his Notice of Appeal in the district court on April 29, 1993. Spencer then applied to this court for a Certificate of Probable Cause on May 25, 1993. Appellee Murray responded with a motion to dismiss the appeal on May 11, 1993. By order filed June 21, 1993, we denied Murray's motion to dismiss and, as individual judges, granted Spencer's application for a Certificate of Probable Cause. Spencer v. Murray, No. 93-4002 (4th Cir. June 21, 1993).

The Execution Order and Stay

On the same day that we entered our order, the Commonwealth sought and received from the state trial court an execution date of August 26, 1993, in this case. Commonwealth v. Spencer, Nos. 88-181-F to 88-184-F (Cir.Ct. for the City of Richmond, Manchester Courthouse, June 21, 1993). On July 23, 1993, Spencer applied to this court for a stay of execution, which we granted on July 27, 1993, for the pendency of this appeal or until further order of this court. Spencer v. Murray, No. 93-4002 (4th Cir. July 27, 1993).

II

On appeal, Spencer raises seven issues: (1) his trial counsel were ineffective because they failed to secure a DNA expert for the defense; (2) he is "actually innocent" of the crime for which he was sentenced to death, and he would not have been convicted if he had been able to challenge the DNA evidence and if the "prejudicial injection of astronomical probability ratios" into the trial had not occurred; (3) his trial counsel were ineffective because they did not conduct voir dire on the issue of racial prejudice; (4) Virginia's proportionality review is unconstitutional, and her application of procedural default rules was unconstitutional because it did not make "rational exceptions"; (5) the jury instructions at trial on mitigating evidence were constitutionally inadequate; (6) his trial counsel were ineffective because they did not explore or present certain mitigating evidence; (7) the DNA analysis used on the evidence in this case was subject to error and produced unreliable results, the results should not have been admitted, and his trial counsel were ineffective in handling this evidence.

Issues Precluded from Review

We do not consider Spencer's Issues 4 (proportionality review and default rules), 5 (jury instructions on mitigating evidence), and 7 (DNA analysis claims), except to the extent that in Issue 7 he alleges his counsel were ineffective in their handling of the DNA evidence and to the extent he raised a challenge to the admissibility of the DNA evidence on direct review. The Supreme Court of Virginia held that these issues were procedurally defaulted under 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). Spencer v. Murray, No. 910252 (Va. June 4, 1991). When a habeas petitioner has defaulted in a federal claim in state court pursuant to an independent and adequate state procedural rule, federal review of the defaulted claim is barred, absent two exceptions not urged upon us by Spencer. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640, (U.S.1991). 3 We address each of Spencer's remaining issues, turning first to his allegations of ineffective assistance of counsel, and then to his actual innocence claim. 4

A. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are governed by the now-familiar standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, the petitioner must show that counsel's performance was deficient and that the petitioner suffered prejudice as a result. 466 U.S. at 687, 104 S.Ct. at 2064. The petitioner must show both deficient performance and prejudice; the two are separate and distinct elements of an ineffective assistance claim. See 466 U.S. at 687, 104 S.Ct. at 2064.

In examining a claim that counsel's performance was deficient, we examine whether counsel's performance was reasonable under prevailing professional norms. 466 U.S. at 688, 104 S.Ct. at 2064. We conduct this review not by asking whether we would have defended the petitioner in the same way, but instead with a deferential eye, and we presume that challenged acts are likely the result of a sound trial strategy. 466 U.S. at 689, 104 S.Ct. at 2065.

Just as the petitioner carries the burden of proving that counsel's performance was deficient, the petitioner also carries the burden of affirmatively proving that prejudice resulted from counsel's deficient performance. 466 U.S. at 693, 104 S.Ct. at 2067. The petitioner must affirmatively prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S.Ct. at 2068. Further, when it is a conviction the petitioner is challenging, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." 466 U.S. at 695, 104 S.Ct. at 2068-69. When it is a death sentence that the petitioner is challenging, "the...

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