Wake Forest Law Review

By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.

 

Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.

 

US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.

 

US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

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By Kayleigh Butterfield

On March 8, 2016, the Fourth Circuit issued its published opinion in the civil case Moses v. Joyner. Moses, a prisoner facing the death penalty, filed a motion under Federal Rule of Civil Procedure 60(b) for relief from the district court’s dismissal of his federal habeas petition. The Fourth Circuit affirmed the district court’s denial of the motion.

Clean Crime and Messy Procedure

In 1997, a jury convicted Moses of two counts of first-degree murder. Both murders were shootings that were closely tied to illegal drug operations. At sentencing, the court imposed the death penalty. The state supreme court affirmed Moses’ conviction, and his petition to the United States Supreme Court was denied.

Over the next seven years, Moses filed a total of three Motions for Appropriate Relief and a federal habeas petition under 28 U.S.C. § 2254. All three motions and the habeas petition were denied. In 2011, Moses filed his first motion under Rule 60(b) for the relief from the district court’s dismissal of his federal habeas petition. Treating this as a successive habeas petition, the district court transferred the issue to the Fourth Circuit, which then denied authorization for the successive litigation.

In August of 2014, Moses filed a second motion under Rule 60(b), claiming that the intervening case law in Martinez v. Ryan and Trevino v. Thaler changed the procedural rules barring a federal habeas petition. Both cases essentially stand for the premise that a procedural default under state law will not always bar federal habeas cases from being heard.  The district court held that this new motion was untimely under Rule 60(c), and that the change of law in Martinez and Trevino was not enough to trigger relief under Rule 60(b).

Untimely and Insufficient

The Fourth Circuit first examined whether the district court had abused its discretion by holding Moses’ motion untimely under Rule 60(c). The Fourth Circuit did not find an abuse of discretion, primarily because Moses waited nearly two-and-a-half years after Martinez and fifteen months after Trevino before filing the present motion.

Next, the Fourth Circuit analyzed whether Moses actually met the standards required by Rule 60(b). The Fourth Circuit explained that while the last clause of 60(b) does act as a sort of broad catch-all for relief, the Supreme Court has narrowed that language so that it only applies if one can show “extraordinary circumstances.” Determining that Martinez and Trevino only constituted a procedural inconsistency with prior habeas law, the Fourth Circuit held that such distinctions did not create extraordinary circumstances broad enough to warrant sufficient grounds for Moses’ 60(b) motion.

Affirmed

For the aforementioned reasons, the Fourth Circuit affirmed the district court’s dismissal of Moses’ motion under Rule 60(b).

Prisoner and guard

By George Kennedy

On November 25, 2015, the Fourth Circuit issued its published opinion in the criminal case of Gray v. Zook. The Fourth Circuit affirmed the order of the district court, which denied Defendant’s petition for a writ of habeas corpus.

Defendant’s Crimes and Death Sentence

Defendant Ricky Jovan Gray confessed to murdering Bryan and Kathryn Harvey and their two young daughters in the course of a home burglary. For these crimes, Defendant was tried in Virginia state court. At trial, the state presented evidence that Defendant had also murdered his wife as well as several others close in time to the murders of the Harveys. As a defense, Defendant offered evidence of his traumatic childhood experiences, including repeated sexual abuse, as well as his consistent drug use. Defendant attempted to show that there was a connection between his childhood trauma and drug use and his violent behavior.

The jury issued verdicts of life imprisonment on three murder counts, and verdicts of death for the murders of the Harvey daughters. On direct appeal, the Supreme Court of Virginia affirmed the convictions and death sentences.

Petitions for Habeas Relief

Following his conviction, Defendant sought state habeas relief in the Supreme Court of Virginia. Defendant argued that he had received inadequate legal representation. Specifically, Defendant claimed that his attorneys had failed to investigate the circumstances surrounding his confession and that his attorneys had not sufficiently represented Defendant’s defense that his use of PCP during the murders had clouded his memory. The Supreme Court of Virginia dismissed Gray’s habeas petition with the exception of one claim, not relevant to Defendant’s federal claims.

Defendant then filed a federal habeas petition in federal district court, alleging that the Supreme Court of Virginia’s dismissal of his habeas petition was based on an unreasonable determination of the facts under the Anti Terrorism and Effective Death Penalty Act (“AEDPA”) § 2254(d)(2). The essence of this claim was that the Supreme Court of Virginia failed to adequately consider all of the evidence presented at trial. The district court also denied Defendant’s habeas petition in full. In addition, the district court certified two questions to the Fourth Circuit. The second question was whether the recent U.S. Supreme Court decision of Martinez v. Ryan mandated the appointment of independent counsel to investigate possible Martinez claims present in Defendant’s case. To this question, the Fourth Circuit answered in the affirmative. Accordingly, Defendant was appointed new counsel, and was allowed to present a new claim for habeas relief. Defendant’s claim was that his counsel failed to present evidence of his voluntary intoxication at the time of the crimes. Yet again, the district court rejected Defendant’s claim for relief. The first certified question was resolved by the Fourth Circuit in this appeal.

Issues on Appeal

The first issue on appeal at the Fourth Circuit was whether the Supreme Court of Virginia’s dismissal of Defendant’s habeas petition that he failed to receive effective legal counsel was “based on an unreasonable determination of the facts under AEDPA § 2254(d)(2).” The AEDPA allows a federal district court to review claims decided on the merits by state courts in death penalty cases when the state court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Defendant’s argument was that the Supreme Court of Virginia erred by failing to resolve disputed issues of fact without an evidentiary hearing, and that its determinations of factual disputes were unreasonable. The Fourth Circuit disagreed, and held that the Supreme Court of Virginia was not required to hold an evidentiary hearing and held that its determination of the facts was not objectively unreasonable.

As the Fourth Circuit explained, the AEDPA does not require a state court to conduct an evidentiary hearing for all factual disputes. Here, the Fourth Circuit held that an evidentiary hearing was not required. The factual dispute at issue was whether Defendant had received adequate representation. The Fourth Circuit found ample support in the record that the Supreme Court of Virginia had considered this dispute sufficiently, and that there was no reason why further inquiry in the form of an evidentiary hearing was required. Furthermore, the Fourth Circuit held that the Supreme Court of Virginia’s determination of the facts was not objectively unreasonable under the AEDPA. The Fourth Circuit disagreed with Defendant on all points. As the Fourth Circuit held, Defendant’s arguments did not call into question any of the Supreme Court of Virginia’s factual findings since they were based on Defendant’s own “conclusory allegations” contradicted by evidence on the record.

The second issue on appeal was whether Defendant may belatedly raise an ineffective assistance at trial claim under the rule recently announced in Martinez. On this issue, also, the Fourth Circuit disagreed with Defendant and affirmed the decision of the trial court. Martinez “permits a petitioner, under certain circumstances, to excuse a procedural defect and bring a claim in federal court that was not raised in state court.” Yet the Fourth Circuit held that Defendant’s ineffective assistance at trial claim was effectively raised in Virginia state court. Therefore, the Fourth Circuit held that Defendant was not entitled to bring his ineffective assistance at trial claim anew in federal court. Accordingly, the Fourth Circuit found no basis to reverse the district court nor revisit the decision of the Supreme Court of Virginia.

Affirmed

The Fourth Circuit affirmed the district court’s dismissal of Defendant’s habeas petition.

Dissent

Judge Davis wrote a separate opinion in which he concurred in part and dissented in part. Judge Davis agreed that Defendant’s Martinez claim relating to ineffective representation at trial was without merit. However, Judge Davis disagreed with the majority as to the AEDPA claim, arguing instead that the Supreme Court of Virginia made an unreasonable determination of the facts.

 

 

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By Daniel Stratton

On June 30, 2015, the Fourth Circuit issued a published opinion in the criminal case Prieto v. Zook. The appellant, Alfredo Rolando Prieto appealed the district court’s denial of his writ of habeas corpus under 28 U.S.C. § 2254. Prieto argued that his two death sentences were unconstitutional under the Eight Amendment’s prohibition on the execution of intellectually disabled individuals, in light of the U.S. Supreme Court’s opinions in Atkins v. Virginia , and Hall v. Florida. The Fourth Circuit, after reviewing the impact of Atkins and Hall, affirmed the district court’s denial, holding that Prieto failed to prove the “fundamental miscarriage of justice” exception necessary to overcome his procedural default.

Prieto’s Conviction and Sentencing

In 2007, Prieto was convicted of two counts of capital murder, two counts of use of a firearm in committing murder, grand larceny, and rape, stemming from a 1988 crime, which he was linked to in 2005 through DNA testing. Juror misconduct ultimately caused a mistrial, and Prieto was again convicted on the same counts in 2008. During his sentencing, Prieto argued that he was ineligible for the death penalty due to an intellectual disability. Despite substantial evidence to support his claim, the jury imposed the death penalty on Prieto.

The Virginia Supreme Court, upon hearing his appeal, affirmed Prieto’s conviction but vacated his death sentence due to problems with the jury verdict forms during the sentencing phase of the trial. The sentencing was remanded to a new jury, and in 2010, he was again sentenced to the death penalty. The trial court again imposed the death penalty and Prieto again appealed. The Virginia Supreme Court affirmed.

Prieto filed a habeas petition with the Virginia Supreme Court, arguing that his counsel was constitutionally ineffective and that his execution was barred by the precedent of Atkins. The Virginia Supreme Court denied the petition, holding that because Prieto had failed to raise his Atkins claim on his 2010 direct appeal, he was now procedurally barred from raising it in his state habeas petition.

Prieto then filed his habeas application in federal court, again asserting a claim under Atkins. The district court dismissed that claim, among others. The Fourth Circuit granted a certificate of appealability as to the Atkins claim.

Atkins, Hall, and the Evolving Standards of Decency

In Atkins, a 2002 case, the Supreme Court held that punishing individuals with an intellectual disability is prohibited under the Eighth Amendment in light of “evolving standards of decency.” In order to determine which offenders fell into the category of intellectually disabled, Virginia enacted a statute which its state Supreme Court interpreted as requiring an IQ score of 70 or below. Thus a defendant with an IQ of 71 could theoretically be sentenced to death, while the Eighth Amendment would protect a defendant with an IQ of 70.

In 2014, the Supreme Court clarified this prohibition, holding in Hall that a mechanical rule with rigid cutoffs for IQ scores to determine intellectual disability is unconstitutional, and that no single factor is dispositive in making a determination. The Supreme Court instead established that states should focus on (1) significantly below average intellectual functioning and (2) inability to engage in adaptive functioning (i.e. learning basic skills).

In light of this decision, Virginia’s interpretation of its statute, which imposed a rigid cutoff at an IQ score of 70 or below was clearly unconstitutional. However, because Prieto had procedurally defaulted on his claim, the constitutionality of the cutoff system was not enough to resolve his Atkins claim.

Virginia and Prieto’s Procedural Default

Under Virginia state law, a claim procedurally defaults when “a non-jurisdictional issue could have been raised during the direct appeal process” but was not. Afterwards, it cannot be used in a petition for a writ of habeas corpus. A habeas petitioner can, however, overcome the procedural default if she can establish either “cause and prejudice” for the default or that it would result in “a fundamental miscarriage of justice.” One way to establish cause is by demonstrating constitutionally ineffective assistance of counsel. To establish a fundamental miscarriage of justice, according to the Supreme Court, a defendant must show that a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” This can also be applied in a death penalty case, where a defendant can show “actual innocence,” meaning that she can prove through “clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found” the defendant eligible for the death penalty.

Prieto argued at the district court level that he had constitutionally ineffective assistance in his 2010 sentencing and appeal, which resulted in his intellectual disability not being raised. The district court found this claim to be meritless, and on this appeal, Prieto did not challenge that finding. For that reason, Pietro was only able to argue that his Atkins claim could survive procedural default because of a fundamental miscarriage of justice. To prove this, Prieto did not argue that he was actually innocent, instead opting to argue that he is “innocent of death.”

The Fourth Circuit, following the Supreme Court, declined to decide if Hall applied retroactively, instead choosing to assume without deciding that it did. The Fourth Circuit then reviewed the district court’s decision de novo. Prieto argued that the evidence he offered during the 2008 sentencing hearing proved his actual innocence claim. Despite the substantial volume of evidence produce by Prieto, which included multiple expert witnesses, numerous interviews with relatives, and “a comprehensive evaluation of his neuropsychological functioning,” the state offered strong evidence to counter his claim. The State’s evidence included testimony from three prison psychologists, evidence that Prieto had written his own list of prison grievances, and had filed a pro se legal challenge relating to his confinement. Because Prieto did not argue that if he were re-sentenced he would introduce additional evidence, the Fourth Circuit ultimately concluded that a jury at a new sentencing would view largely the same evidence as before.

Prieto finally attempted to draw comparisons in his case to the Supreme Court’s Hall case. The Fourth Circuit found this unpersuasive, in part because the Supreme Court did not rule on Hall’s intellectual disability; it simply remanded the case back so Hall could attempt to prove such disability.

The Fourth Circuit Affirms Prieto’s Sentence

Ultimately, the Fourth Circuit, when looking at the entirety of the record, held that it could not conclude that “no reasonable jury would find Prieto eligible for the death penalty.” Because of the high burden required of establishing a “fundamental miscarriage of justice” exception, the Fourth Circuit concluded that Prieto failed to prove his Atkins claim and the judgment was affirmed.