Thomas v. Taylor

• Decision Date: 16 March 1999
• Docket Number: No. 98-22,98-22
• Citation: 1999 WL 140596,170 F.3d 466
• Parties: Douglas Christopher THOMAS, Petitioner-Appellant, v. John TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 466

170 F.3d 466

Douglas Christopher THOMAS, Petitioner-Appellant, v. John TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.

No. 98-22.

United States Court of Appeals Fourth Circuit.

Argued Jan. 27, 1999.

Decided March 16, 1999.

ARGUED: Lawrence Hunter Woodward, Jr., Lisa Palmer O'Donnell, Shuttleworth, Ruloff & Giordano, P.C., Virginia Beach, Virginia, for Appellant. Pamela Anne Rumpz, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Mark Evan Olive, Virginia Capital Representation Resource Center, Richmond, Virginia, for Appellant. Mark L. Earley, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before ERVIN, LUTTIG, and KING, Circuit Judges.

Dismissed by published opinion. Judge LUTTIG wrote the opinion, in which Judge ERVIN and Judge KING joined.

OPINION

LUTTIG, Circuit Judge:

Douglas Christopher Thomas appeals the district court's dismissal of his petition for writ of habeas corpus, challenging his conviction in Virginia state court for capital murder. We deny Thomas' motion for a certificate of appealability and dismiss the appeal. ¹

I.

Early in the morning of November 10, 1990, appellant Douglas Christopher Thomas shot and murdered J.B. and Kathy Wiseman as they slept in their home in Middlesex County, Virginia. At the time of the murders, Thomas, who was then 17, was living nearby with his aunt and uncle, Brenda and Herbert Marshall, and his niece, Lanie Creech, then 12.

Thomas murdered the Wisemans at the behest of their daughter, Jessica, then 14, whom he was dating, because the Wisemans had been threatening to break up their relationship. On November 6, a few days before the murders, Creech overheard Thomas plotting with Jessica to "[g]et[ ] rid of her parents." Jessica asked Thomas "if he had enough bullets"; Thomas said that he did. Jessica Wiseman and Thomas then set a time to meet at the Wisemans' house in order to carry out the murders.

At some point during the week before the murders, the Marshalls, with whom Thomas was living, traveled to Roanoke, Virginia, on a hunting and fishing trip. In order to ensure that the Marshalls did not return unexpectedly and thereby disrupt the plan to murder the Wisemans, Thomas drove to Roanoke and cut the brake lines on the Marshalls' truck.

On November 9--the night of the murders--Thomas admitted to Creech that he was "going over to Jessica's ... [t]o kill two people." Thomas told Creech that his plan was to go over to the Wisemans' house, shoot the Wisemans, and return home and pretend to be sleeping; Jessica would then come to the Marshalls' house and bang on the door in feigned panic.

After talking to Creech, Thomas left his house with a shotgun loaded with buckshot and went over to the Wisemans' house, stopping along the way to smoke marijuana. Upon reaching the house, Thomas climbed in through the window of Jessica's bedroom, and briefly stopped to talk to Jessica and smoke more marijuana. Thomas then went to the Wisemans' bedroom. There, he shot J.B. Wiseman once in the head at close range, killing him instantly. He next proceeded to shoot Kathy Wiseman in the head, essentially destroying the left side of her face.

Thomas then returned to Jessica's bedroom. Despite her horrific injury, Kathy Wiseman was not immediately killed, but managed to walk down the hall to Jessica's bedroom in order to check and see whether her daughter was OK. Upon seeing her mother standing at the doorway to her bedroom, Jessica yelled, "Oh God, Chris, please shoot her again." According to his subsequent confession, Thomas obliged her request, shooting Kathy Wiseman again in the head and this time killing her instantly. Thomas then returned home; a short time later, Jessica carried out the final stage of the plan, going to the Marshalls' house and banging on the door in feigned panic. Later that same day, Thomas confessed to both murders.

Thomas pled guilty to the first-degree murder of J.B. Wiseman and related firearms charges, and not guilty to the capital murder of Kathy Wiseman and related firearms charges. He was tried for the murder of Kathy Wiseman as an adult. On Friday, August 23, 1991, a jury found Thomas guilty on all counts. On Monday, August 26, the same jury sentenced Thomas to death, finding as an aggravating factor that his conduct in committing the murder was vile, horrible, or inhuman, and finding no mitigating circumstances. See Va.Code § 19.2-264.2. On November 11, the trial judge imposed the death sentence and sentenced Thomas to a further sixty-seven years in prison for the murder of J.B. Wiseman. ²

On June 5, 1992, the Virginia Supreme Court affirmed Thomas' conviction and sentence, see Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d 606 (1992), and on November 2, 1992, the United States Supreme Court denied Thomas' petition for writ of certiorari, see Thomas v. Virginia, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 343 (1992). On July 26, 1993, Thomas filed a petition for writ of habeas corpus in Virginia state court; on June 17, 1996, the Virginia Supreme Court dismissed the petition. On March 25, 1997, Thomas filed this petition for writ of habeas corpus in the United States District Court for the Eastern District of Virginia. After granting Thomas extensive discovery, the district court dismissed the petition on June 11, 1998. From that order of dismissal, Thomas now appeals.

II.

Appellant initially contends that he was deprived of due process because he was sentenced by a jury, rather than by the trial judge. Specifically, he claims that, under a state law in effect at the time of his sentencing, he was entitled to be sentenced by the trial judge because he was a juvenile defendant charged as an adult. The statute read as follows:

In the hearing and disposition of felony cases properly before a circuit court having criminal jurisdiction of such offenses if committed by an adult, the court, after giving the juvenile the right to a trial by jury on the issue of guilt or innocence and upon a finding of guilty, may sentence or commit the juvenile offender in accordance with the criminal laws of this Commonwealth or may in its discretion deal with the juvenile in the manner prescribed in this law for the hearing and disposition of cases in the juvenile court.

Va.Code § 16.1-272 (1991). ³

As the district court properly concluded, see J.A. at 1322-23, appellant's federal constitutional claim fails because it is procedurally defaulted. Although appellant contended on direct appeal that his sentence by the jury violated state law, he never asserted that such a violation rose to the level of a federal constitutional violation. See id. at 457-58 (brief of appellant on direct appeal); see generally Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court."). ⁴

On direct appeal, the Virginia Supreme Court did not address any federal constitutional claim, but held only that, under the Virginia statute, Thomas was properly sentenced. See Thomas, 244 Va. at 21-23, 419 S.E.2d 606. Insofar as appellant continues to maintain that he was entitled to be sentenced by the trial judge as a matter of Virginia law, we are foreclosed from considering this argument because federal habeas relief simply does not lie for errors of state law. See 28 U.S.C. § 2254(d)(1) (allowing habeas review only for adjudication of claim by state court that "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). We therefore reject the remainder of appellant's claim.

III.

Appellant next raises two types of claims of ineffective assistance of counsel. Appellant first asserts that trial counsel was ineffective for failing to investigate and present evidence suggesting that Jessica Wiseman, and not appellant, fired the second of the two shots that killed Kathy Wiseman. Appellant next contends that trial counsel was ineffective in preparing and presenting expert psychological testimony as mitigating evidence at sentencing. Applying the two-prong standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we conclude that the state court's rejection of each of these claims was not unreasonable.

A.

Appellant first asserts that trial counsel was ineffective for failing to investigate and present evidence suggesting that Jessica Wiseman, and not appellant, fired the second of the two shots that killed Kathy Wiseman. Appellant claims that he told his court-appointed psychological expert, Dr. Earle H. Williams, that he did not fire the second shot. See, e.g., J.A. at 747 (report of Dr. Williams of March 13, 1991) (noting that "Chris intimated that he did not fire all the shots"); id. at 755-56 (report of Dr. Williams of August 6, 1991) (reporting that Thomas said, "I only shot once"). Appellant contends, however, that trial counsel failed adequately to pursue this lead.

We reject appellant's argument because trial counsel's "failure" to investigate evidence that appellant did not fire the second...