Wright v. Angelone

• Decision Date: 16 July 1998
• Docket Number: No. 97-32,97-32
• Citation: 151 F.3d 151
• Parties: Dwayne Allen WRIGHT, Petitioner-Appellant, v. Ronald J. ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 151

151 F.3d 151

Dwayne Allen WRIGHT, Petitioner-Appellant, v. Ronald J. ANGELONE, Director of the Virginia Department of

Corrections, Respondent-Appellee.

No. 97-32.

United States Court of Appeals, Fourth Circuit.

Argued June 3, 1998.

Decided July 16, 1998.

ARGUED: Douglas Fredericks, Norfolk, Virginia, for Appellant. Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Richard Ernest John Slaney, Wolcott, Rivers, Wheary, Basnight & Kelly, P.C., Virginia Beach, Virginia, for Appellant. Mark L. Earley, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before WILLIAMS and MICHAEL, Circuit Judges. ^*

Dismissed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MICHAEL joined.

WILLIAMS, Circuit Judge:

Dwayne Allen Wright was found guilty by a Virginia jury of (1) the murder of Saba Tekle during the commission of a robbery, (2) robbery, (3) use of a firearm during a robbery, (4) murder subsequent to attempted rape, and (5) attempted rape. The jury subsequently recommended that Wright be sentenced to death based upon his future dangerousness. The trial court adopted the jury's recommendation and imposed the death sentence upon Wright. After exhausting his state appeals, Wright petitioned the United States District Court for the Eastern District of Virginia for habeas relief. The district court denied Wright's petition and his motion for a Certificate of Appealability (COA), see 28 U.S.C.A. § 2253(c)(1)(B)(2) (West Supp.1998); Fed. R.App. P. 22(b). After reviewing the record, briefs, and having had the benefit of oral argument, we, too, conclude that Wright has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(1)(B)(2). Accordingly, we also deny Wright's motion for a COA and dismiss his petition.

I.

The following facts are those recited by the Virginia Supreme Court in Wright v. Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993):

In October 1989, Tekle, age 33, resided with her mother and two sisters in an apartment located at Annandale, in Fairfax County. On October 13, Tekle had been visiting with Minia Gabriel at Gabriel's house in Arlington County. About 8:30 p.m., Tekle left Gabriel's house, driving Gabriel's burgundy Nissan Maxima automobile. Tekle had planned to return to Gabriel's house by 9:00 p.m.

About 9:00 p.m., Tekle's sister, Seble Kasa, was in the apartment and heard Tekle calling to her and her mother from outside the apartment. As Kasa walked to the exterior door of the apartment in response to Tekle's call, Kasa heard two gunshots, "one right after the other." When Kasa opened the door, she found Tekle lying on the floor at the bottom of a flight of stairs, and she heard someone running up the stairs.

An autopsy disclosed that Tekle had sustained a single gunshot wound to the right, upper back. The medical examiner, who performed the autopsy, testified that the bullet

went in a forward, upward and rightward direction and injured the transverse processes or little bones that protrude from the sides of the backbone of the upper two thoracic backbones. [The bullet] also hit the right first rib. Then it injured the upper lobe of the right lung and continued through the soft tissue or muscles of the neck, perforated or passed through the right internal jugular vein and then exited the right lower neck.

The medical examiner opined that Tekle's death was caused by a "[p]erforating gunshot wound in the neck." Tekle also had sustained abrasions to the left forehead and to the right knee. When Tekle's body was received by the medical examiner, it was clad only in a jacket, dress, brassiere, and some jewelry. Tekle's coat, underpants, shoes, and pocketbook were found on or near the sidewalk outside the apartment building. The police discovered two "impact areas," caused by bullets, in the stairwell outside the apartment. One impact area was in a "header" above the staircase. The other was in the wall, 43 inches above the floor on which Tekle's body was found. There was a large pool of blood on the floor around Tekle's body and a small amount of blood on the two steps nearest the floor. There was a bloody handprint on the apartment door.

Police were unable to locate the Nissan automobile at the crime scene. However they did find a Buick automobile with its engine running. The left portion of the Buick's steering column had been "ripped off," allowing the automobile to be started without a key. Latent fingerprints recovered from the Buick later were determined to match Wright's fingerprints. On October 14, a Washington, D.C. police officer, who had known Wright for a number of years, saw Wright operating a burgundy Nissan Maxima automobile. Wright looked at the officer and then "sped off at a high rate of speed, never stopping at [a] stop sign." The officer pursued Wright. Wright abandoned the automobile, and, after a brief chase on foot, the officer apprehended and arrested Wright. The keys to the Nissan were recovered from Wright's pocket.

After being advised of his Miranda rights and signing a waiver of those rights, Wright told a police officer that he had observed Tekle operating the Nissan automobile and decided that he wanted to steal the car. Wright followed Tekle to her apartment building and parked the Buick automobile where the police later found it. After Tekle exited her automobile, Wright approached her at gunpoint and demanded that she give him the keys to the Nissan. Tekle dropped the keys on the ground, and Wright picked them up. Wright then ordered Tekle to take off her clothes because he wanted to take her into a wooded area behind the apartment building and "have sex." Tekle removed her shoes and her underpants and then ran, screaming, toward the apartment building. Wright chased her into the building and fired two shots at her. He knew that one of the shots hit Tekle. Wright then left the area in the Nissan and disposed of the weapon.

Id. at 387-88 (alterations in original).

Because Wright was only seventeen years old at the time of his crimes, criminal proceedings were initiated by petitions filed in the juvenile court. The first petition alleged that he murdered Tekle and the second petition alleged that he used a firearm in the commission of that murder. (J.A. at 15-18.) The juvenile court amended the first petition to charge Wright with capital murder because the murder occurred while in the commission of or in the attempt to commit robbery. The Fairfax County authorities later obtained a third petition against Wright in juvenile court in which they charged him with robbery.

On November 15, 1990, the Commonwealth gave formal notice of its intention to seek transfer of these charges to Circuit Court and its intention to seek the death penalty. The juvenile court granted Wright's motion for a sanity and competency evaluation. Pursuant to Virginia law, the juvenile court also held a probable cause hearing at which time the court found probable cause as to each of the three charges. ¹ The juvenile court then granted the Commonwealth's motion to transfer and advised the Commonwealth that it could seek indictment.

On June 17, 1991, a grand jury returned a five count indictment against Wright. The counts included (1) murder in the course of a robbery, (2) robbery, (3) use of a firearm during a robbery, (4) murder subsequent to attempted rape, and (5) attempted rape. A Fairfax County jury later found Wright guilty on all counts and recommended the death penalty. On January 24, 1992, the trial court entered its sentencing order of death.

On direct appeal, the Supreme Court of Virginia affirmed Wright's convictions and sentence. See Wright v. Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993). The United States Supreme Court vacated Wright's sentence, however, based upon Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). See Wright v. Virginia, 512 U.S. 1217, 114 S.Ct. 2701, 129 L.Ed.2d 830 (1994). On remand, the Virginia Supreme Court reaffirmed the sentence, concluding that Wright "was not ineligible for parole," see Wright v. Commonwealth, 248 Va. 485, 450 S.E.2d 361, 363 (1994), and the Supreme Court denied certiorari, see Wright v. Virginia, 514 U.S. 1085, 115 S.Ct. 1800, 131 L.Ed.2d 726 (1995). Wright then began his state post-conviction relief proceedings. On March 14, 1996, the Virginia Supreme Court dismissed Wright's state habeas petition, and denied rehearing. On March 14, 1997, Wright filed his petition for federal habeas relief in the district court. On September 12, 1997, the district court adopted the magistrate judge's report and recommendation and ordered the petition dismissed.

II.

On appeal, Wright contends that he is entitled to relief because (1) the Virginia circuit court lacked jurisdiction over counts four and five of the indictment; (2) the Virginia Supreme Court denied him equal protection of the law when it affirmed his convictions on counts four and five in violation of Virginia state law; (3) he was denied a fair and impartial jury when the victim's family intimidated a juror during the trial; and (4) he was denied effective assistance of counsel. He further contends that the district court abused its discretion when it denied his motion for funds to hire a neurologist pursuant to 28 U.S.C.A. § 848(q)(9) (West Supp.1998).

A.

Before we address the merits of Wright's claims, we must determine the applicable standard of review. The Antiterrorism and Effective Death Penalty Act of 1996 provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an...