Weeks v. Angelone, Action No. 2:96CV829.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Rebecca Beach Smith
• Citation: 4 F.Supp.2d 497
• Decision Date: 01 April 1998
• Docket Number: Action No. 2:96CV829.
• Parties: Lonnie WEEKS, Jr., Petitioner, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent.

4 F.Supp.2d 497 Lonnie WEEKS, Jr., Petitioner,
v.
Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent. Action No. 2:96CV829. United States District Court, E.D. Virginia, Norfolk Division. April 1, 1998. Order Denying Motion to Amend Judgment, June 19, 1998.

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Glen A. Huff, Timothy M. Richardson, Huff, Poole & Mahoney, P.C., Virginia Beach, VA, Sterling H. Weaver, Sr., Portsmouth, VA, Michele Jill Brace, Robert Edward Lee, Jr., Mark E. Olive, Richmond, VA, for Petitioner.

Robert H. Anderson, III, Assistant Attorney General, Richmond, VA, for Respondent.

OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter was initiated on February 7, 1997, by petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted for the capital murder of Virginia State Trooper Jose Cavazos, and was sentenced to death on January 14, 1994.¹ The petition alleges violations of federal rights pertaining to petitioner's conviction and sentencing in the Circuit Court of Prince William County, Virginia. Specifically, Weeks attacks the validity of his conviction and sentence on thirty-four (34) separate grounds.

The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 29 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The Magistrate Judge's Report and Recommendation (R & R) was filed on July 30, 1997, recommending that the petition be denied and dismissed.

By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On August 18, 1997, this court received "Petitioner's Objections

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to United States Magistrate Judge's Report and Recommendation," and respondent's "Objections to Magistrate Judge's Report and Recommendation." The parties' respective responses to the objections were both filed on September 5, 1997.

Petitioner objects to each of the Magistrate Judge's recommendations to deny the individual claims presented in the Petition for a Writ of Habeas Corpus. However, of the claims on which the merits were reached, Weeks relies most heavily on Claims I, V, X, XVIII, XX, XXVI, XXVII, XXVIII, and XXIX. Petitioner maintains that these claims entitle him to conduct discovery, present evidence, and ultimately receive a Writ of Habeas Corpus. Respondent does not contest the ultimate recommendation of the Magistrate Judge, but does object to some specific rulings within the R & R. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the Magistrate Judge's R & R to which petitioner and respondent have specifically objected.² The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

In addition, there is an outstanding objection to the Magistrate Judge's January 23, 1997, Opinion and Order denying Weeks' request for expert assistance. This court will also review that decision and the corresponding objection. See infra part III.A.

Discussion

I. Preliminary Objections

Two of respondent's objections do not go to the Magistrate Judge's analysis of any particular claim, but to underlying findings that affect the standard of review used throughout the R & R. First, respondent objects to the Magistrate Judge's finding that Virginia does not satisfy the "opt-in" requirements in Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Respondent also objects to the Magistrate Judge's determination that petitioner's defaulted allegations are potentially reviewable under the "actual innocence" doctrine.

A. "Opt-In" Requirements

With respect to the first objection, this court, by order dated November 21, 1996, affirmed this very finding by the Magistrate Judge.³ Therefore, this court will treat respondent's objection as a motion to reconsider. For the following reasons, the court upholds its earlier decision and finds that Virginia does not meet the "opt-in" requirements of the AEDPA.

The AEDPA, which became effective on April 24, 1996, makes significant changes to the law of federal habeas corpus review, including creating a new Chapter 154 of Title 28 of the United States Code. Sections 101 through 106 apply generally to all federal habeas petitions. However, § 107 of the Act, which creates Chapter 154, applies specifically to petitions filed in capital cases. In addition to providing for expedited review, Chapter 154 affects habeas petitions in death penalty cases by narrowing the issues cognizable on federal habeas and by requiring federal courts to give even greater deference to state courts, prior resolution of issues presented in these petitions. See § 107(a).

Section 107 specifically states that it "shall apply to cases pending on or after the date of enactment of this Act." § 107(c). However, § 107 provisions, providing greater deference to state proceedings, are applicable only if the state meets the "opt-in" requirements set forth in § 107. To qualify for habeas benefits under the "post-conviction" prong of the "opt-in" provisions, a state must establish a mechanism that provides for the appointment, compensation, and reimbursement of competent counsel for all indigent capital defendants

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in its state post-conviction proceedings.⁴ In other words, § 107 creates a "quid pro quo arrangement under which States are accorded stronger finality rules on federal habeas corpus review in return for strengthening the right to counsel for indigent capital defendants." Satcher v. Netherland, 944 F.Supp. 1222, 1238 (E.D.Va.1996) (quoting H.R.Rep. No. 23, 104th Cong., 1st Sess. 10 (1995)), rev'd in part on other grounds sub nom. Satcher v. Pruett, 126 F.3d 561 (4th Cir.), and cert. denied, ___ U.S. ___, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997).

Specifically, in order to "opt-in" a state must meet all four of the following criteria:

1. The State must establish by statute, rule of its court of last resort, or other agency authorized by state law a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent capital defendants. See § 2261(b).

2. Such mechanism must provide standards of competency for the appointment of such counsel. See § 2261(b).

3. Such mechanism must affirmatively offer counsel to all state prisoners under capital sentence. See § 2261(c).

4. Such mechanism must provide for the entry of a court order either appointing counsel to each indigent capital defendant, or explaining that such an appointment was not made on the basis that a defendant was not indigent or rejected the offer of counsel with an understanding of the legal consequences. See § 2261(c).

Although not always for identical reasons, other judges in this district have recently held that the Commonwealth of Virginia does not meet the qualifications of Chapter 154 of the AEDPA. Wright v. Angelone, 944 F.Supp. 460 (E.D.Va.1996) see also Breard v. Netherland, 949 F.Supp. 1255, 1261-62 (E.D.Va.1996), aff'd sub nom. Breard v. Pruett, 134 F.3d 615 (4th Cir.1998); Satcher v. Netherland, 944 F.Supp. 1222, 1238 (E.D.Va.1996). Virginia does clearly meet the third and fourth requirements, as applied in this case. As of July 1, 1995, the appointment of counsel in the post-conviction process became automatic.⁵ Counsel was appointed for Weeks on October 10, 1995, and his state habeas proceedings became final on March 15, 1996. Accordingly, the state was in compliance with the third and fourth requirements of the "opt-in" provisions, using either date as the measuring point.⁶

However, Virginia has failed to meet the first "opt-in" requirement. Virginia fails to meet the requirement of a comprehensive mechanism for the appointment, compensation, and payment of reasonable litigation expenses for counsel. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.1996) ("the Virginia statutes and regulations do not specifically provide for compensation or payment of litigation expenses of appointed counsel, as § 107 requires"); see also Satcher, 944 F.Supp. at 1241-42 (for detailed discussions of why Virginia fails to meet the compensation requirement); Wright, 944 F.Supp. at

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464-65 (same). As Judge Payne held in Satcher, this requirement could only be satisfied by strict, rather than substantial compliance. Satcher, 944 F.Supp. at 1242. There has been no change in Virginia law, since the Satcher and Wright decisions, that would require a different outcome. Thus, the Commonwealth is not entitled to the special review that may be granted some states for their capital cases under Chapter 154.⁷

The other provisions in the AEDPA clearly do apply in this case, as the petition was filed well after April 24, 1996, the enactment date of the Act.

B. Actual Innocence Doctrine

The Magistrate Judge examined Weeks' petition to determine if his procedurally defaulted ineffective assistance claims were reviewable under the "fundamental miscarriage of justice," or "actual innocence," doctrine. R & R at 27-31. The Magistrate Judge ultimately held that Weeks could not meet the required burden of proof, and thus his procedurally defaulted claims were not reviewable. Id. Respondent argues that the Magistrate Judge erred in even applying the "actual innocence" doctrine in petitioner's case. According to respondent, both 28 U.S.C. §...