Terry v. Cross
| Citation | 112 F.Supp.2d 543 |
| Decision Date | 14 September 2000 |
| Docket Number | No. Civ.A. 99-661-A.,Civ.A. 99-661-A. |
| Parties | Tyrone TERRY, Petitioner, v. Carolyn CROSS, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Tyrone W. Terry, Lawrenceville, VA, petitioner pro se.
Jeffrey Scott Shapiro, Assistant Attorney General, Richmond, VA, for respondent.
In this pro se petition, brought pursuant to 28 U.S.C. § 2254, petitioner asserts several claims, including a plausible claim of actual innocence based on a significant question concerning the accuracy of the trial transcript. For the reasons that follow, certain claims are procedurally defaulted and must be dismissed, while others, including the claim of actual innocence, require an evidentiary hearing to determine certain essential facts.
Petitioner Tyrone Terry ("Terry") attacks the validity of his November 1, 1995 conviction for statutory rape in the Circuit Court of the City of Richmond. Terry's prosecution commenced on July 3, 1995, when a grand jury indicted him for the rape of a child under the age of thirteen, in violation of Virginia Code § 18.2-61.1 The evidence presented at the September 28, 1995 trial was summarized by the Court of Appeals of Virginia as follows:
The evidence proved that at the time of the offense the victim (N.F.) was twelve years old. One evening during April 1994, N.F.'s mother, a private duty nurse, had to stay overnight at a patient's home. The mother asked [Terry], a close friend, to house-sit for her. [Terry] and N.F. were alone in the house that evening. Around 3:00 a.m., [Terry] entered N.F.'s bedroom and raped her.
A few months after the rape, N.F. told her friend "Huck" that [Terry] had raped her. She did so after "Huck" told her about his niece having been raped. He encouraged N.F. to tell her mother, but she feared her mother would not believe her. N.F. testified that she also felt partially responsible for the rape because she had asked her mother if she could stay home that night. N.F. further testified that she did not tell her father because she feared he would become angry, injure [Terry], and end up in jail. Sometime after N.F. told "Huck" about the rape, she told her friend, Latisha. While discussing the rape with these two friends, "Huck" threatened to tell N.F.'s mother if she did not. N.F. telephoned her mother, met her at home, and told her about the rape. The mother immediately called the police.
Over defense counsel's objection, the mother testified that N.F. called her on February 10, 1995, and said she wanted to talk. N.F. then reported that [Terry] had raped her in April 1994. The trial judge ruled that the ten month delay in reporting the rape had been sufficiently explained and ruled the evidence admissible.
Terry v. Commonwealth, 24 Va.App. 627, 484 S.E.2d 614, 615-16 (1997). After hearing the evidence, the jury found Terry guilty as charged, and recommended a sentence of imprisonment of 17 years. The trial court ordered preparation of a pre-sentence report (requested by Terry's counsel) and a victim impact statement.2
At the sentencing hearing on November 1, 1995, the trial court reviewed the pre-sentence report and heard both Terry's allocution and testimony from the probation officer concerning the application of the advisory sentencing guidelines to Terry's conviction. At the conclusion of the sentencing hearing, the trial court imposed the jury's recommended sentence of 17 years. Because Terry indicated dissatisfaction with his trial counsel and stated that he wished to appeal his conviction on grounds including ineffective assistance of counsel, the trial court granted Terry's request for new counsel and authorized a public defender to assume Terry's defense on appeal.
When the trial transcript became available, shortly after the sentencing hearing, Terry's trial counsel reviewed it and found over thirty-five errors, which he noted and forwarded to Terry's newly appointed appellate counsel. On January 17, 1996, Terry's appellate counsel filed objections to the trial transcript, requesting corrections of the record based on the errors noted by trial counsel. Most of the identified transcript errors were of a minor nature, such as misspelled words or typographical errors. Similarly inconsequential was the omission of one question and answer relating to the victim's address and a bench conference that should have been part of the record. Although none of these errors was significant, the same cannot be said of a further so-called error forwarded to Terry's appellate counsel by his trial counsel. Specifically, Terry's trial counsel pointed out that the uncorrected transcript quoted the victim as testifying that her birthday was March 26, 1981, but that his notes from the preliminary hearing indicated that her birthday was June 26, 1981. Unlike the other transcript errors noted by Terry's trial counsel, this error can hardly be termed minor, as it relates directly to an element of the offense of statutory rape, namely the victim's age. If the transcript correctly recorded the victim's testimony that her birth date is March 26, 1981, then she was thirteen on the date of the rape and hence the charge of statutory rape must fail, for there was no other record evidence of the victim's age.
It is not uncommon in Virginia trial practice to hold a post trial hearing to address alleged transcript errors. See Va.Sup.Ct.R. 5:11(d) (2000); see also Lamb v. Commonwealth, 222 Va. 161, 279 S.E.2d 389 (1981) (). Accordingly, Terry's appellate counsel sent Terry a letter on January 16, 2000, indicating that he would request a hearing on the matter of the trial transcript corrections and keep Terry informed of any new developments. Terry received this letter on January 18, 2000, and immediately responded to his appellate counsel requesting to be present at the hearing. In this letter, Terry apparently indicated that he did not agree with all the corrections and wished to attend the proceeding. He also inquired whether it was possible for the transcript to be stricken from the record.3 Terry's request to be present was of no avail, however, as the hearing was held on January 26, 1996, several days before Terry's appellate counsel received Terry's letter requesting to be present at the hearing. At the hearing, the trial court inquired whether defendant waived his right to be present, and Terry's appellate counsel responded that he did.
At the hearing, Terry's trial counsel appeared as a witness to testify on the various transcript objections he had noted. On the issue of the victim's birth date testimony, trial counsel testified that he had no independent recollection of the actual testimony, but that his notes from previous hearings indicated that the victim's birth date was June 26, 1981, which, if true, would have made her twelve at the time of the rape. The prosecutor agreed that the correct date was June 26, 1981, but she did not indicate that she had an independent recollection of the victim's testimony on this point. Based on trial counsel's statement about his notes from the preliminary hearing and the fact that the prosecutor did not object, the trial court granted this requested change. The technical corrections were also allowed, and the trial court ordered that an errata sheet be prepared and included with the record.4
On January 31, 1996, Terry's appellate counsel responded to Terry's earlier letter requesting to be present for the hearing concerning transcript errors. In this response, he explained that there was insufficient time to arrange for Terry's transportation to the hearing because it was essential that the hearing take place promptly. He also noted that, in his opinion, striking the transcript was not a viable option and that all of his objections had been granted.
Terry's appellate counsel subsequently appealed the conviction to the Court of Appeals of Virginia, alleging two grounds for relief: (1) that the victim's mother's testimony about earlier statements made by her daughter was improperly admitted; and (2) that Terry was improperly compelled to speculate as to the victim's motives to lie. The Court of Appeals rejected these arguments and affirmed Terry's conviction and sentence. See Terry v. Commonwealth, 24 Va.App. 627, 484 S.E.2d 614 (1997). There was no challenge to the conviction based on the original transcript testimony concerning the victim's birth date. Thereafter, Terry's petition for appeal to the Supreme Court of Virginia was denied. See Terry v. Commonwealth, No. 971109 (Va. Sept. 15, 1997) (unpublished opinion). On December 22, 1997, Terry filed a pro se petition for a writ of habeas corpus with the Circuit Court of the City of Richmond, which was denied. See Terry v. Garraghty, No. LE-62 (order entered April 24, 1998). Likewise, his pro se petition for appeal to the Supreme Court of Virginia was denied without a hearing. See Terry v. Garraghty, No. 981324 (Va. Oct. 30, 1998) (unpublished opinion).5 Then, on April 28, 1999, Terry filed the instant petition pro se. Liberally construing his claims, he alleges that:
(1) Terry's trial and appellate counsel were ineffective in that:
(a) Trial counsel failed to object and request a bill of particulars when the evidence offered at trial varied from the information in the indictment;
(b) Appellate counsel unlawfully waived Terry's right to be present at the hearing to correct the trial transcript and failed to object to trial counsel's testimony as to his recollection of the victim's birth date; and
(c) Trial counsel failed to move to dismiss the indictment when the victim testified that her birth date was March 26, 1981, making her thirteen years old at the time of the alleged rape, and subsequently lied when he stated that his...
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