Washington v. Murray

• Citation: 952 F.2d 1472
• Decision Date: 31 December 1991
• Docket Number: No. 89-4013,89-4013
• Parties: Earl WASHINGTON, Jr., Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of Corrections, Charles E. Thompson, Warden, Mecklenburg State Correctional Facility, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1472

952 F.2d 1472

Earl WASHINGTON, Jr., Petitioner-Appellant, v. Edward W. MURRAY, Director, Virginia Department of

Corrections, Charles E. Thompson, Warden,

Mecklenburg State Correctional Facility,

Respondents-Appellees.

No. 89-4013.

United States Court of Appeals, Fourth Circuit.

Argued June 4, 1990.

Decided Dec. 19, 1991.

As Amended Dec. 31, 1991.

Eric Freedman, Hofstra University School of Law, Hempstead, N.Y., argued (Robert T. Hall, Hall, Markle, Sickels & Fudala, P.C., Fairfax, Va., Peter Huber, Washington, D.C., on brief), for petitioner-appellant.

Linwood Theodore Wells, Jr., Asst. Atty. Gen., Richmond, Va., argued (Mary Sue Terry, Atty. Gen., on brief), for respondents-appellees.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PHILLIPS, Circuit Judge:

This is an appeal by Earl Washington, a Virginia death-row inmate, from the district court's summary dismissal of his petition for habeas corpus challenging on various constitutional grounds his conviction and death sentence for capital murder following the commission of rape. We find no error in the dismissal except as to one claim of ineffective assistance of counsel respecting the failure to explore and use certain forensic evidence which allegedly was available to counsel and, if used, would have been directly exculpatory. As to that claim, we conclude that the district court erred in not conducting an evidentiary hearing to determine certain facts dispositive of the claim, and we therefore vacate dismissal of that claim and remand for an evidentiary hearing.

I

In June of 1982, Rebecca Williams lived with her husband and three children in a ground-floor unit of an apartment complex in Culpeper, Virginia. Neighbors found Mrs. Williams collapsed in the doorway of her apartment at approximately noon on June 4, 1982, suffering from multiple stab wounds. She said that she had been raped by an unknown black man acting alone. Mrs. Williams succumbed from her wounds at approximately 2:00 p.m. that day. Mrs. Williams had been stabbed thirty-eight times and fourteen of these wounds could have caused death. Vaginal smears revealed the presence of sperm which had been deposited one to twelve hours before death. ¹

The investigation into Mrs. Williams' murder failed to result in an arrest for almost a year. Suspicion initially had focussed on one James Pendleton, but he was never arrested. About a year after the murder, Washington was in custody on other charges in another county when he, according to the testimony of police officers, confessed, first orally, then in writing, to murdering and raping Mrs. Williams. Washington was a black man, aged 22 at the time, with a general I.Q. in the range of 69, that of a child in the 10.3 year age group. At trial, Washington denied making the inculpatory statements as testified by the interrogating officers and relied on an alibi--that he was working at home at the time of the crime. The alibi was neither corroborated nor directly refuted by other witnesses.

After his trial and conviction, Washington appealed to the Virginia Supreme Court, which affirmed his conviction and death sentence. ² Washington v. Commonwealth, 228 Va. 535, 323 S.E.2d 577 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). Following denial of his petition for certiorari by the United States Supreme Court, Washington filed a petition for a writ of habeas corpus in the state circuit court. The Virginia circuit court denied the petition without an evidentiary hearing. Washington filed a petition for appeal in the Virginia Supreme Court which found "no reversible error in the judgment complained of" and refused the petition. Washington then filed his petition for a writ of habeas corpus in the federal district court which granted the Commonwealth's motion to dismiss without holding an evidentiary hearing.

This appeal followed.

II

We first address several claims of constitutionally ineffective assistance of trial counsel raised in Washington's § 2254 petition and summarily dismissed by the district court.

Because no state court evidentiary hearing had addressed any of these claims, Washington was entitled to an evidentiary hearing in the district court if the factual allegations he made as to any, if proved, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). See Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir.1990). A remand for such an evidentiary hearing is the relief that Washington seeks with respect to these claims.

The issue of ineffectiveness of counsel's assistance is a mixed question of law and fact subject to de novo review in this Court. Becton, 920 F.2d at 1192. To prove such a claim, Washington must establish both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the outcome of the proceeding would have been different but for the deficient performance, a "reasonable probability" being one "sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984).

A

We first consider Washington's claim that his trial counsel had failed to develop and present to the jury the results of certain allegedly exculpatory forensic evidence. Specifically, his petition alleged that his counsel had received but failed to appreciate the significance of, and hence to introduce at trial, the results of exculpatory laboratory tests on semen stains found on a blanket recovered from the bed where the rape of Mrs. Williams occurred.

This allegation was supported by two affidavits. One, by an affiant proffered as an expert in the field, opined that the laboratory reports of the blood type and PGM ³ type of the semen stains, as compared to Washington's, excluded Washington as the depositor of the semen. The other, by his trial counsel (proffered on a motion for reconsideration following dismissal of the petition), stated that counsel had received the laboratory reports but did not recognize their arguably exculpatory nature.

The district court rejected this claim of ineffective assistance without an evidentiary hearing, on alternative grounds: that counsel's conduct, as alleged, did not fall outside the range of acceptable professional conduct, and that in any event there was no reasonable probability that the outcome of the proceeding would have been different but for the challenged conduct. We look at these in turn.

If, as Washington alleged, his counsel failed to offer available evidence which in a significant way drew his factual guilt in issue, counsel's performance obviously fell below an objective standard of reasonable professional conduct, unless some cogent tactical or other consideration justified it. The allegation that the evidence was available to counsel was supported by counsel's affidavit (though belatedly filed), and was not disputed by the Commonwealth. The allegation that the laboratory reports indicated Washington's blood type as O with PGM type of 2-1 whereas four samples of the semen stains on the blanket from the crime scene showed blood type A with PGM type of 1, was undisputed. The allegation that this disparity of types indicated that Washington could not have been the depositor of the semen in the stains was supported by the opinion by affidavit of a facially qualified expert that was not disputed by opposing expert opinion or other evidence. ⁴

On this state of the record, the district court could not properly conclude as a matter of law, without an evidentiary hearing, that counsel's conduct as alleged in Washington's petition fell within the range of reasonable professional conduct. No tactical considerations justifying counsel's failure to proffer the forensic evidence or at least to explore its reliability and exculpatory significance is suggested on the record. Nothing intrinsic in the laboratory reports made them so manifestly unreliable or scientifically irrelevant to the identification issue central to Washington's defense that counsel's failure to use them could be deemed justified on that account without need for further explanation. For all that appeared from the petition's allegations, partially supported by unrebutted affidavits, counsel inexplicably had failed to recognize the significance of, hence to proffer in Washington's defense, facially exculpatory scientific evidence. Unless explained by circumstances not developed on the record, that could not be deemed performance within an objectively reasonable range of professional conduct under the circumstances.

An evidentiary hearing of course might have developed facts sufficiently explaining and justifying counsel's facially inexplicable failure, thereby bringing it within the range of reasonable professional conduct. But without such an explanation or justification, the district court erred in concluding as a matter of law that counsel's conduct as alleged in Washington's petition was within that range.

That error, however, would be of no consequence if the district court correctly concluded that even assuming the truth of the allegations of deficient performance, there was no reasonable probability, given the evidence of Washington's guilt, that the result of the proceeding would have been different had the challenged conduct not occurred, i.e., had the possible significance of the facially exculpatory evidence been recognized, then verified, and the evidence introduced by counsel at trial. This determination requires a judgmental assessment of the reasonable probability that introduction of this forensic evidence would, at the least, have raised a reasonable doubt of Washington's guilt in the jury's mind, or have caused the jury to recommend life imprisonment rather than death as the sentence if guilt were found. Here again, we believe the district court...