Swisher v. True

• Decision Date: 28 March 2003
• Docket Number: No. 02-10.,02-10.
• Citation: 325 F.3d 225
• Parties: Bobby Wayne SWISHER, Petitioner-Appellant, v. Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

325 F.3d 225

Bobby Wayne SWISHER, Petitioner-Appellant, v. Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.

No. 02-10.

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2002.

Decided: March 28, 2003.

ARGUED:

Anthony Frazier King, Wallace, King, Marraro & Branson, Washington, D.C., for Appellant. Pamela Anne Rumpz, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee.

ON BRIEF:

Steven D. Rosenfield, Charlottesville, Virginia, for Appellant. Jerry W. Kilgore, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Application for certificate of appealability denied and appeal dismissed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Senior Judge HAMILTON joined.

OPINION

WILLIAMS, Circuit Judge:

Bobby Wayne Swisher applies to this court for a certificate of appealability (COA) to review the district court's dismissal of his petition under 28 U.S.C.A. § 2254 (West 1994 & Supp.2002).¹ Swisher asserted a variety of claims in his habeas petition in the district court. In his motion for a COA, Swisher asserts that he is entitled to relief as to several of those claims including, inter alia, the following: (1) that the Commonwealth, in prosecuting him, knowingly elicited perjurious testimony from a witness and failed to correct the erroneous impression conveyed by that witness's testimony, in violation of the Fourteenth Amendment; (2) that his counsel failed adequately to impeach a witness against him with the witness's prior inconsistent statement to police, thus providing ineffective assistance of counsel in violation of the Sixth Amendment; and (3) that the Commonwealth, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), failed to turn over evidence that a witness against him sought (and possibly received) a monetary reward in exchange for his testimony. Finding that Swisher has not made the requisite substantial showing of the denial of a constitutional right as to any of these claims, we deny Swisher's application for a COA and dismiss his appeal.

I.

The undisputed facts of Swisher's case are summarized in the opinion of the Supreme Court of Virginia resolving Swisher's appeal from his conviction. Swisher v. Commonwealth, 256 Va. 471, 506 S.E.2d 763 (1998). We restate those facts relevant to Swisher's petition briefly below.

On February 5, 1997, Dawn McNees Snyder disappeared from the florist shop where she worked in Augusta County, Virginia. Her body was discovered on February 21, 1997, on the bank of the South River, approximately two miles from the florist shop. Forensic examination revealed that she had been raped, sodomized, and that her death had been caused by some violence to her neck.²

On February 22, 1997, Swisher was at an apartment with two friends, Clarence Henry Ridgeway, Jr. and Shane Knous. Swisher told Ridgeway and Knous that he had abducted, raped, sodomized, and killed Snyder. He stated specifically that on February 5 he entered the florist shop where Snyder worked and told her he had a gun in his pocket. He also threatened Snyder with a butcher's knife. Swisher forced Snyder to accompany him from the florist shop to a field near the South River, where he forced her to perform oral sex on him and remove her clothes. Swisher then raped Snyder and again forced her to perform oral sex on him. Finally, after Snyder put her clothes back on, Swisher cut her face and throat with the butcher's knife and threw her, still alive, into the South River. As Snyder floated in the river, Swisher walked along the bank and shouted, "Are you dead yet?" A few moments later, when she began to crawl up the bank, Swisher "got scared and took off running" away from the river to his house. Swisher, 506 S.E.2d at 765.

Ridgeway notified the Augusta County Sheriff's Office of Swisher's statements on the morning of February 23. Later that day, Swisher accompanied four deputies to the Sheriff's Office for questioning. After being arrested and advised of his Miranda rights, Swisher admitted, in an audiotaped confession, that he had sodomized and raped Snyder, murdered her by cutting her throat, and thrown her into the South River.

Swisher was charged with murder, abduction, rape, and forcible sodomy in Snyder's death. Following a jury trial, the jury found Swisher guilty of all charges on October 29, 1997, including capital murder pursuant to Va.Code Ann. § 18.2-31 (Michie 1996). In the penalty phase of the trial, the Commonwealth presented the testimony of Ridgeway, who testified that Swisher had confessed to him and Knous that he murdered Snyder. Ridgeway testified that Swisher had told him Swisher felt like he could "do it again." (J.A. at 326.) In a previous statement to police, however, Ridgeway stated that he had not heard Swisher say he felt like he could "do it again," but that Knous remembered hearing Swisher make such a statement. (J.A. at 317.) Ridgeway further testified that he had not sought and was not interested in a reward offered for information about Snyder's murder.³ At the conclusion of the penalty phase, the jury fixed Swisher's sentence for Snyder's murder at death, and the trial judge sentenced him to death on February 18, 1998.

Swisher filed a direct appeal, which was consolidated with the automatic review of his death sentence in the Supreme Court of Virginia. See Swisher, 506 S.E.2d at 765; Va.Code Ann. § 17.1-313(A) (Michie 1999) (providing for automatic review of death sentences in the Supreme Court of Virginia); § 17.1-409 (authorizing the Supreme Court of Virginia to certify for its review a case filed with the Virginia Court of Appeals before that court has resolved the case). The Supreme Court of Virginia denied relief. Swisher then filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, see Va.Code Ann. § 8.01-654(C) (Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition.⁴ Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material.⁵

II.

We may only issue a COA if Swisher has made a "substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, "an appeal may not be taken" to this court from the district court's denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, ___ U.S. ___, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is "a jurisdictional prerequisite" to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, "a petitioner must `show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further.''"" Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))).

The Supreme Court has held that "[w]here a district court has rejected [a petitioner's] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484, 120 S.Ct. 1595; cf. Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (noting that "a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"). The Supreme Court has stated that "[t]his construction [of the standard applicable when the district court rejects a claim on procedural grounds] gives meaning to Congress' requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the `substantial showing' standard provided in Barefoot and adopted by Congress in AEDPA." Slack, 529 U.S. at 484, 120 S.Ct. 1595 (internal citation omitted).

The Supreme Court recently provided further guidance on the question of how an application for a COA is to be assessed in Miller-El. The Court's opinion in Miller-El makes clear that whether to grant a COA is intended to be a preliminary inquiry, undertaken before full consideration of the petitioner's claims. Miller-El, 123 S.Ct. at 1039 (noting that the "threshold [COA] inquiry does not require full consideration of the factual or legal bases adduced in support of the claims"); id. at 1040 (noting that "a claim can be debatable...