Turner v. Williams

• Citation: 35 F.3d 872
• Decision Date: 15 September 1994
• Docket Number: No. 93-4001,93-4001
• Parties: Willie Lloyd TURNER, Petitioner-Appellant, v. David A. WILLIAMS, Warden, Powhatan Correctional Center, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 872

35 F.3d 872

Willie Lloyd TURNER, Petitioner-Appellant, v. David A. WILLIAMS, Warden, Powhatan Correctional Center,

Respondent-Appellee.

No. 93-4001.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 8, 1993.

Decided Sept. 15, 1994.

ARGUED: William Bradford Reynolds, Sr., Dickstein, Shapiro & Morin, Washington, DC, for appellant. Robert H. Anderson, III, Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellee. ON BRIEF: Walter J. Walvick, Dickstein, Shapiro & Morin, Washington, DC, for appellant. Stephen D. Rosenthal, Atty. Gen. of VA, Office of the Atty. Gen., Richmond, VA, for appellee.

Before HALL, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge K.K. HALL joined. Judge LUTTIG wrote a separate opinion, concurring in the judgment.

OPINION

MICHAEL, Circuit Judge:

Petitioner Willie Lloyd Turner is a Virginia prisoner who was convicted of murder and first sentenced to death in 1979. In 1986, after state and federal collateral review, the United States Supreme Court vacated his sentence and remanded for resentencing. In 1987, a Virginia jury again sentenced him to death. In 1992, after unsuccessful direct and collateral review in the Virginia courts, Turner petitioned the United States District Court for the Eastern District of Virginia for relief pursuant to 28 U.S.C. Sec. 2254. The district court denied that relief. Turner v. Williams, 812 F.Supp. 1400 (E.D. Va.1993). Turner appeals, arguing that the district court erred in dismissing (1) his claims attacking the application of a statutory aggravating factor that permits imposition of death upon a finding that the defendant's conduct was "outrageously or wantonly vile, horrible or inhuman," and (2) his several ineffective assistance of counsel claims. For the reasons that follow, we affirm.

I

On the morning of July 12, 1978, Turner entered Smith Jewelers, owned and operated by W. Jack Smith, Jr. in City of Franklin, Virginia. Turner went in the store with a sawed-off shotgun wrapped in a towel. Without saying a word, Turner displayed his shotgun and motioned to Smith. Smith immediately began stuffing money into a jewelry bag. While he was filling the bag, Smith inconspicuously activated the store's silent alarm to the police department. Meanwhile, Turner directed the several customers and employees present to line up behind the store counter, kicking a customer in the process.

Shortly after Smith triggered the alarm, a police officer, Alan D. Bain, Jr. arrived at the store and told Smith that his alarm was activated. Turner pointed his shotgun at Officer Bain's head and ordered him to remove his revolver from its holster and put it on the floor. Turner then grabbed Officer Bain's revolver off the floor, jabbed his shotgun at the officer, and directed him to the back of the store with the others.

Turner, now brandishing his shotgun in one hand and Bain's revolver in the other, fired the revolver into the back wall of the store. He threatened to "start killing" if another police officer showed up. At this point, without any provocation, Turner pointed the revolver at Smith and fired. The bullet struck Smith in the head. Smith yelled, slumped over the counter and fell to the floor, unconscious, gurgling, and bleeding from the head. The shot caused bleeding and bruising on Smith's brain surface, but was not fatal.

At this point, Officer Bain began talking to Turner. He offered to take Turner out of the store if he would agree not to shoot anyone else. While Bain talked to Turner, two customers were able to escape from the store. Turner then said, "I'm going to kill this nigger squealer," JA 314, referring to Smith, who was not African American. Turner then immediately reached over the counter with the revolver and fired two close-range shots into the left side of Smith's chest. The shots caused Smith's body to jump. (One of the bullets penetrated his heart, food and wind pipes before ultimately lodging in his spine; the other bullet passed through his lung and out his back. Medical testimony established that either of the two shots to the chest would have been fatal.) Immediately after these shots, Officer Bain was able to shove Turner and grab his weapons. Bain then forced Turner to get down on the floor and called for help.

On December 4, 1979, Turner was convicted for murdering Smith, and on December 6, 1979, a jury in Northampton County recommended that he be sentenced to death. On direct appeal, the Supreme Court of Virginia affirmed the conviction and sentence, and the United States Supreme Court denied certiorari. Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert. denied sub nom. Turner v. Virginia, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). Turner then filed a petition for a writ of habeas corpus in the circuit court of Southampton County, Virginia. That petition was denied, and the Supreme Court of Virginia affirmed. The United States Supreme Court again denied his certiorari petition. Turner v. Virginia, 462 U.S. 1112 (1983).

Turner next sought relief in the federal courts. On July 27, 1983, he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The petition was denied, and our court affirmed. Turner v. Bass, 753 F.2d 342 (4th Cir.1985). Turner then filed another certiorari petition in the United States Supreme Court, which was granted. On April 30, 1986, the Supreme Court vacated Turner's death sentence (but not his conviction) because the trial court had refused to question prospective jurors about possible bias resulting from the fact that Turner was African American and his victim was white. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). The Supreme Court remanded the case, which ultimately went to the circuit court of Southampton County for a new sentencing hearing. ¹

Turner was represented at resentencing by court-appointed lawyers, J. Lloyd Snook, III and Thomas L. Woodward, Jr. The resentencing hearing (a jury proceeding) occurred on January 7-9 and 12, 1987. The Commonwealth finished its case on Friday, January 9, and the defense rested on Monday, January 12, without putting on any mitigating evidence. The jury was then instructed. Under Virginia's death penalty scheme, the jury may fix the sentence at death if it finds either one of two aggravating factors: (1) "that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" (the "future dangerousness" factor), or (2) "that his conduct in committing the offense ... was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim" (the "vileness" factor). Va.Code Ann. Sec. 19.2-264.2 (Michie 1990). ² Turner's jury was given limiting instructions that defined the "aggravated battery" and "depravity of mind" components of the vileness factor.

On January 12, 1987, Turner's resentencing jury returned a verdict fixing his sentence at death based solely on the vileness factor. ³ His sentence was upheld on direct appeal to the Supreme Court of Virginia, and the United States Supreme Court denied his certiorari petition. Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483, cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988).

Turner then filed a petition for a writ of habeas corpus in the circuit court of Southampton County, alleging ineffective assistance of counsel and other claims. On September 11-13, 1989, the state court held an evidentiary hearing on some of his ineffective assistance claims; all other claims were dismissed without an evidentiary hearing. On May 23, 1990, the court issued a letter order that adopted the Commonwealth's proposed findings of fact and rejected Turner's ineffective assistance claims. On July 5, 1990, the court issued a formal order incorporating the letter order and dismissing Turner's habeas petition. On April 30, 1991, the Supreme Court of Virginia dismissed Turner's habeas appeal. Turner v. Williams, No. 901335 (Va. Apr. 30, 1991). That court rejected his ineffective assistance claims on the merits and concluded that his other claims were procedurally defaulted.

Turner next sought collateral review in the federal courts. On December 10, 1991, he filed a 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The Commonwealth moved for dismissal under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On February 1, 1993, the district court granted the Commonwealth's motion for summary judgment and dismissed his petition. Turner v. Williams, 812 F.Supp. 1400 (E.D.Va.1993). The court found that most of Turner's claims were procedurally barred and rejected the others on the merits. Turner now appeals to this court.

Turner's claims on this appeal can be grouped in two general categories. First, he raises several challenges to the application of the vileness factor. Second, he says his lawyers rendered ineffective assistance in several respects. ⁴ The Commonwealth responds that all of Turner's claims are barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), because they would require us to announce new constitutional rules of criminal procedure on collateral review. The Commonwealth next asserts that Turner's challenges to the application of the vileness factor, as well as one of his ineffective assistance claims, are procedurally barred. We must first address these arguments to determine whether we can even reach the merits of Turner's claims.

II

In Teague v. Lane, a plurality of the Supreme Court adopted the second Justice Harlan's retroactivity approach and held that a "new rule" of...