Turner v. Williams, Civ. A. No. 91-1846-AM.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation812 F. Supp. 1400
Docket NumberCiv. A. No. 91-1846-AM.
PartiesWillie Lloyd TURNER, Petitioner, v. David A. WILLIAMS, Warden Powhatan Correctional Center, Respondent.
Decision Date01 February 1993

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Walter J. Walvick, Washington, DC, David R. Addis, Vienna, VA, for petitioner.

Robert H. Anderson, III, Asst. Atty. Gen., Richmond, VA, for respondent.

MEMORANDUM OPINION

CACHERIS, Chief Judge.

This matter is before the Court on Respondent David A. Williams' motion to dismiss Petitioner Willie Lloyd Turner's 28 U.S.C. § 2254 (1988) petition for a writ of habeas corpus. Respondent's motion is brought pursuant to Federal Rules of Civil Procedure 12(b)(6), or in the alternative Rule 56(b). For reasons set forth below, Respondent's motion is GRANTED, judgment entered in favor of Respondent, and the petition for habeas corpus dismissed with prejudice.1

I. BACKGROUND.

Over fourteen years ago, at approximately 11:30 a.m. on July 12, 1978,2 Petitioner Willie Lloyd Turner entered Smith Jewelers store located in the City of Franklin, Virginia, which was owned and operated by W. Jack Smith, Jr. As Turner entered the store, he carried with him a sawed-off shotgun concealed under a green towel. Turner walked to the back of the store, and without saying a word motioned toward Smith with his gun, causing Smith to begin loading money and jewelry into a jewelry bag. While he was stuffing the jewelry bag, Smith was inconspicuously able to activate the store's silent alarm. In almost immediate response to the alarm, Police Officer Alan D. Bain, Jr., entered the store, and informed Smith that his alarm had been triggered. Before Officer Bain could observe the situation, Turner placed his shotgun next to Officer Bain's head and ordered Bain to remove his service revolver, which Turner then confiscated. Turner then ordered Smith to turn off the alarm and continue loading bags with jewelry. After fidgeting with the revolver for a few moments, Turner fired the gun into the back wall of the store, yelling that he did not want any more police contacted.

At this point, Smith started to step out from behind the counter. Turner looked at him for a moment, and then shot Smith in the head with the revolver, causing Smith to yell, slump down, and fall to the floor. The bullet passed through Smith's scalp, and although not fatal, it caused bleeding and bruising to the brain surface. The shot knocked Smith unconscious, where he remained crumpled behind the counter, bleeding from his head, and emitting a faint gurgling noise.

Turner backed up, and according to Judith R. Cosby, a customer in the store at the time, declared "I'm going to kill that nigger for snitching on me."3 Turner then reached over the counter, rapidly firing two successive close range pistol shots into the left side of the unconscious Smith's chest. The shots caused Smith's body to jump at the force of impact, with one of the bullets penetrating his heart, food and wind pipes, finally lodging in his spine. The other bullet passed through his chest and lung, exiting out his back, so that the flattened slug was later found loose in his shirt. There was no more noise or motion from Smith following these shots. The medical examiner testified that the shots to Smith's chest were the cause of death, and that either shot alone would have been sufficient to kill him. After Smith's body lay lifeless, Officer Bain was able to regain control of his weapon, and subsequently subdue Turner.

Turner was convicted of murdering Smith on December 4, 1979, and on December 6, 1979, a jury sentenced him to death, which the Supreme Court of Virginia approved on appeal. Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980) (Turner I), cert. denied sub nom. Turner v. Virginia, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). On April 30, 1986, the United States Supreme Court upheld Turner's conviction, but reversed his death sentence because of the trial court's failure to question prospective jurors about possible bias resulting from the fact that Turner was black and his victim was white. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).

The case was then returned to the Circuit Court for the County of Southampton, Virginia, the Honorable James C. Godwin presiding, for a new jury trial on the sentence, which took place on January 7-9, and 12, 1987. One of the decisions to be made at this point by court-appointed attorney J. Lloyd Snook and assisting counsel Thomas L. Woodward, Jr.,4 was whether to tell the jury that Turner previously had received a death sentence.5

Snook had been counseled by other death penalty experts against allowing the jury to know of the previous sentence. The difficulty with that advice was that part of the mitigating evidence he planned to introduce concerned Turner's actions during a 1984 escape attempt by himself and other death row inmates at Mecklenburg prison. Judge Godwin had indicated he would not sever any portion of the evidence regarding the fact that Turner was on death row, and that all such rebuttal evidence would be admitted. See Transcript I, supra note 2, at 21-24. Snook also felt the jury would be able to figure out on its own that Turner previously had received the death penalty, knowing that Turner had already been convicted, that the offense had occurred some ten years before, and that the only issue before them was whether to impose a life or death sentence. Transcript II, supra note 5, at 76. As Prosecutor Grizzard observed when discussing the issue with Snook and Judge Godwin, "any halfway intelligent jury knows that a man that's sentenced to life in the first instance is not appealing the life sentence so that he can get the possibility of a death penalty." Turner v. Commonwealth, No. 870554, Tr. at 24 (Southampton County Cir.Ct. Nov. 12, 1986). Judge Godwin agreed that "that should be obvious very quickly." Id.

Based on Judge Godwin's comments, as well as his feeling that the jury would realize on its own that there had been a previous death sentence, Snook determined that his best course of action was to have the court inform jurors of the prior death sentence during voir dire. This allowed Snook to gauge any potential resulting prejudice upon the part of individual jurors, as well as to avoid the appearance of having held back damaging evidence once the prior death sentence became apparent.

The next major trial decision for Snook came at the end of the Commonwealth's case in chief.6 After the prosecution rested, Snook felt the Commonwealth had held back about eighty percent of its evidence, saving the most devastating evidence for use in rebuttal to the defendant's case. Snook also was concerned that mitigating evidence on Turner's character ultimately showed more bad than good, and that all of this damaging character evidence would come in if he tried to introduce what relatively limited evidence there was of good character. Finally, Snook felt the jury had been bored by the government's case, so that based on all these factors, putting on mitigating evidence would not have placed the defendant in a better position than the one in which he stood currently. Thus, Snook decided to rest the defendant's case without putting on a defense. Woodward, who was personally acquainted with the prosecutor, concurred. Woodward had tried many cases against prosecutor Grizzard, and he knew Grizzard had a habit of holding back damaging evidence for use in rebuttal.

On January 12, 1987, this second jury returned a verdict again fixing the sentence at death, based solely upon the "vileness" predicate established by Va.Code Ann. § 19.2-264.2 (Michie 1990).7 This sentence was again upheld on appeal to the Virginia Supreme Court. Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483 (Va.) (Turner II), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988).8

The collateral review process began anew when Petitioner filed for a writ of habeas corpus with the Circuit Court for the County of Southampton, based upon alleged ineffective assistance of counsel. An evidentiary hearing on this issue was held before Judge Godwin on September 11-13, 1989. All other claims were dismissed without an evidentiary hearing. On May 23, 1990, Judge Godwin issued a five-page letter order finding nothing to substantiate Turner's claim, and adopting verbatim the Attorney General's proposed findings of fact.9 On July 5, 1990, the letter order was formalized in an order dismissing Turner's petition. On April 30, 1991, the Supreme Court of Virginia dismissed Turner's appeal of the lower court's decision. On December 10, 1991, Turner filed this petition, which is his first petition for habeas corpus in federal court with respect to the January 12, 1987 death sentence. The Commonwealth has moved for dismissal of the petition pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56.

II. APPLICABLE LEGAL STANDARD.

The respondent has styled this alternatively as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or for summary judgment under Rule 56. Because a considerable record has already been developed as a result of prior proceedings in this matter, it is more appropriate for the Court to treat this as a motion for summary judgment, as provided for in Rule 12(b).

Summary judgment is appropriate only if "`the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Baber v. Hospital Corp. of America, 977 F.2d 872, 874 (4th Cir.1992); ...

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