Wright v. Angelone

• Decision Date: 22 October 1996
• Docket Number: Action No. 2:96cv830.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Dwayne Allen WRIGHT, Petitioner, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent.

944 F.Supp. 460

Dwayne Allen WRIGHT, Petitioner, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent.

Action No. 2:96cv830.

United States District Court, E.D. Virginia, Norfolk Division.

October 22, 1996.

Charles Everett Malone, Clark & Stant, Virginia Beach, VA, Douglas Fredericks, Norfolk, VA, for Dwayne Allen Wright.

Robert Quentin Harris, Office of Attorney General, Richmond, VA, for Ronald J. Angelone.

OPINION

MILLER, United States Magistrate Judge.

On August 14, 1996, Petitioner Dwayne Allen Wright filed a Motion for the Appointment of Counsel and for Stay of Execution. Petitioner's execution, which was scheduled to occur on August 23, 1996, was stayed by Order of this Court entered on August 17, 1996. On that same date, this matter was referred by United States District Judge Henry C. Morgan, Jr. to United States Magistrate Judge Tommy E. Miller, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 28 of the Rules of the United States District Court for the Eastern District of Virginia. An Order was entered on September 10, 1996, appointing Douglas Fredericks as lead counsel and Charles Malone as co-counsel for the Petitioner.

On October 15, 1996, oral arguments were heard before this Court to determine the applicability of Section 107 of the Antiterrorism and Effective Death Penalty Act of 1996. This Court must decide whether Virginia has met the opt-in provisions outlined in Section 107, which would entitle Virginia to certain habeas benefits.

At this time, no habeas petition has been filed in this matter. This Court must decide the applicability of Section 107 at this preliminary stage, however, to determine the pertinent deadlines for filing the petition for writ of habeas corpus and the appropriate responses. If Section 107 does apply, this case would be subject to an expedited review process which would significantly affect the filing requirements in this matter.

Analysis

Section 107 of the Antiterrorism and Effective Death Penalty Act

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996) (hereinafter "AEDPA"). Title I of the AEDPA, entitled Habeas Corpus Reform, creates a new Chapter 154 of Title 28 of the United States Code. Within Chapter 154 are several specific provisions dealing with capital defendants. Id., § 107. Such provisions are applicable only if states meet the "opt-in" requirements set forth in Section 107.

Section 107 applies to all cases pending on or after the enactment date of April 24, 1996. AEDPA, tit. I, § 107(c). As no habeas petition has yet been filed in this case, Section 107 of the AEDPA would apply if Virginia meets the opt-in requirements set forth in the statute.

Chapter 154 provides for an expedited review procedure by which state courts are given more deference in the federal habeas review process. A state may qualify for the benefits of Chapter 154 if it qualifies under one of two "opt-in" provisions: [1] "unitary review" procedures under § 2265; or [2] "post-conviction" procedures under § 2261. A unitary review procedure allows a person under a sentence of death to raise on direct review of the judgment such claims that could be raised on collateral attack. 28 U.S.C. § 2265. Virginia does not have such a unitary review procedure, and therefore the analysis must focus on whether Virginia meets the second opt-in requirement.

To qualify for habeas benefits under the "post-conviction" prong of the opt-in provisions, a state must establish a mechanism which provides for the appointment, compensation, and reimbursement of competent counsel for all indigent capital defendants in its state post-conviction proceedings. 28 U.S.C. § 2261. More specifically, 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 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).

Satcher v. Netherland, Action No. 3:95cv261, ___ F.Supp. ___ (E.D.Va. Oct. 8, 1996). Virginia does provide for counsel in post-conviction proceedings, but this court must determine whether Virginia meets the specific requirements of Section 107 of the AEDPA to the extent that it would be entitled to the habeas benefits.

Time for Adjudging the Adequacy of Virginia's System

Since July 1, 1992, Virginia has had in effect a system which requires the appointment of counsel for indigent petitioners in post-conviction proceedings. Va.Code §§ 19.2-163.7, -163.8 (Michie Supp.1995); Virginia Public Defender Commission, Standards for the Qualifications of Appointed Counsel in Capital Cases (1992); see also Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.1996). Between July 1, 1992 and June 30, 1995, the appointment of counsel in the post-conviction process was made upon request by the petitioner. Va.Code § 19.2-163.7 (prior to 1995 amendment). As of July 1, 1995, such appointment is now automatic.¹

Respondent argues that this Court should analyze Virginia's system as it exists today, rather than as it was when Wright's state counsel was actually appointed, to determine whether it meets the requirements of Section 107. To engage in such an analysis would be unjust, as it would potentially allow a state to enjoy the benefits of an expedited habeas review because its current system is in compliance, even though the actual petitioner may not have enjoyed the protections of the post-conviction procedures. Section 107 was intended to afford states a certain amount of deference through the expedited review process on the federal side, but only if such states employ certain protections to indigent capital defendants. This statutory scheme envisions a quid pro quo arrangement "under which states are accorded stronger finality rules on federal habeas review in return for strengthening the right to counsel for indigent capital defendants." Hill v. Butterworth, 941 F.Supp. 1129, 1134 (N.D.Fla.1996). Surely Congress did not intend for a state to reap the benefits of the statute unless the petitioner whose case would be subject to the expedited review also enjoyed the "quid pro quo benefits" of the state's enhanced right to counsel provisions during the post-conviction review process. See Ashmus v. Calderon, 935 F.Supp. 1048, 1057 (N.D.Cal.1996).

Whether a state's system satisfies the requirements of Section 107 should be determined by examining the system as it existed at the time a petitioner first received appointment of counsel in the post-conviction process. It is at this time that a petitioner is first subject to the state's procedures, and would therefore be entitled to enjoy the protections of the state's system. To analyze a state's system at any later date would prejudice the petitioner whose case might be subject to the expedited review.

The record in this case does not indicate when Wright's state habeas petition was filed, but it does indicate when counsel was appointed to represent Wright in the state habeas corpus proceedings. Respondent's Exhibit A is a court order dated June 8, 1995, appointing Andrew F. Carroll, Esquire, as Wright's court appointed counsel in the state habeas corpus process. (Resp't.Ex. A). This Court will evaluate Virginia's post-conviction procedures as they existed on June 8, 1995, in determining whether Virginia meets the requirements of Section 107 of the AEDPA.²

The Adequacy of Virginia's System for the Appointment, Compensation, and Reimbursement of Competent Counsel

The adequacy of Virginia's post-conviction procedures was recently addressed in the Richmond Division of the Eastern District of Virginia in Satcher v. Netherland, Action No. 3:95cv261, ___ F.Supp. ___. In the Satcher opinion, Judge Payne found that Virginia did not meet three of the four opt-in requirements of the AEDPA, and therefore was not entitled to the habeas benefits outlined in that statute. The undersigned agrees that Virginia does not qualify under the post-conviction provisions of Section 107, but disagrees with a portion of Judge Payne's analysis.

1. Virginia does not have a mechanism for the appointment, compensation and reimbursement of counsel as contemplated by § 2261(b).

Section 2261(b) states that Chapter 154 applies only if a state meets certain qualifications:

This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another 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 prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.

28 U.S.C. § 2261. Since July 1, 1992, Virginia has had in place a statutory scheme which provides for the appointment of counsel to represent indigent capital petitioners in state post-conviction proceedings. Va. Code § 19.2-163.7, -163.8. Neither party contends that Virginia fails to appoint counsel...