Douglas Christopher Thomas v. John Taylor, Warden, Sussex I State Prison
Docket: 98-22
Court: Court of Appeals for the Fourth Circuit; March 16, 1999; Federal Appellate Court
Douglas Christopher Thomas appealed the dismissal of his habeas corpus petition challenging his capital murder conviction in Virginia. The Fourth Circuit Court of Appeals, led by Judge Luttig, denied Thomas' motion for a certificate of appealability and dismissed the appeal. The case stems from the murders of J.B. and Kathy Wiseman on November 10, 1990, which Thomas committed at the urging of his 14-year-old girlfriend, Jessica Wiseman. The Wisemans had threatened to end their relationship.
Prior to the murders, Thomas, then 17, conspired with Jessica, discussing the need for bullets. To prevent his aunt and uncle from returning unexpectedly during the crime, he sabotaged their truck. On the night of the murders, Thomas confessed to his niece, Lanie Creech, about his intentions. He entered the Wisemans' home through Jessica's window, shot J.B. Wiseman in the head, then shot Kathy Wiseman after she attempted to check on her daughter, following Jessica's urging. Afterward, Thomas returned home, and Jessica feigned panic at the Marshalls' house. Thomas later admitted to both murders.
Thomas pleaded guilty to first-degree murder and related firearms charges involving J.B. Wiseman but not guilty to capital murder and related charges for Kathy Wiseman. He was tried as an adult for Kathy's murder, with a jury finding him guilty on August 23, 1991. On August 26, the jury sentenced him to death, citing the heinous nature of the crime and identifying no mitigating circumstances. The trial judge subsequently imposed the death sentence and an additional sixty-seven years for the murder of J.B. Wiseman. The Virginia Supreme Court affirmed the conviction and sentence on June 5, 1992, and the U.S. Supreme Court denied his petition for writ of certiorari later that year. Thomas filed a state habeas corpus petition on July 26, 1993, which was dismissed on June 17, 1996. He then filed a federal habeas corpus petition in the U.S. District Court for the Eastern District of Virginia, which the court dismissed on June 11, 1998. Thomas appealed this dismissal, arguing that he was denied due process by being sentenced by a jury instead of a judge, claiming entitlement to a judge's sentence under state law for juvenile defendants charged as adults. However, the district court found his federal constitutional claim procedurally defaulted, as he had not raised the constitutional dimension of his claim in state court, thereby failing to alert the state courts of his federal rights violation assertion.
The Virginia Supreme Court, on direct appeal, did not consider any federal constitutional claims and affirmed that Thomas was properly sentenced under Virginia law, as documented in Thomas, 244 Va. at 21-23, 419 S.E.2d 606. The court noted that federal habeas relief cannot address state law errors, as per 28 U.S.C. 2254(d)(1), which permits review only for decisions contrary to or involving unreasonable applications of established federal law. Consequently, the court rejected Thomas's argument regarding his sentencing.
Thomas raised two ineffective assistance of counsel claims. First, he argued that trial counsel failed to investigate evidence that another individual, Jessica Wiseman, fired the second shot that killed Kathy Wiseman, despite his assertion to a psychological expert that he did not fire that shot. However, the court found that trial counsel's actions were reasonable, noting overwhelming evidence that Thomas himself fired both shots, as he consistently communicated to his counsel.
Second, Thomas claimed ineffective assistance regarding trial counsel's preparation and presentation of expert psychological testimony during sentencing. Applying the Strickland v. Washington standard, the court concluded that the state court's rejection of these claims was not unreasonable, affirming the trial counsel's performance in both respects.
Trial counsel was not required to investigate further the appellant's claim of firing the second shot due to the appellant's own assertions. According to the Supreme Court's guidance in Strickland, a lawyer's decisions are influenced by the defendant's statements, and if a defendant provides information that suggests pursuing additional investigations would be unproductive, the counsel's inaction is not deemed unreasonable. In this case, trial counsel conducted interviews with numerous witnesses and examined forensic evidence, ultimately concluding that there was no basis to believe someone other than the appellant fired the second shot. This thorough investigation, despite the absence of obligation to pursue it, led the district court to find trial counsel's actions reasonable, rejecting the appellant's claim of ineffective assistance.
Additionally, the appellant claims ineffective assistance regarding the preparation of expert psychological testimony at sentencing. He raises two points: first, that trial counsel inadequately prepared Dr. Earle Williams, the court-appointed psychiatric expert, and second, that trial counsel improperly chose to use the prosecution’s expert, Dr. Henry Gwaltney, instead of Dr. Williams for mitigation testimony.
Both of the appellant's claims regarding trial counsel's effectiveness are rejected. Trial counsel's preparation of Dr. Williams was deemed reasonable; they initially had a positive view of him due to his credentials and prior favorable testimony. Although Dr. Williams lacked experience in capital cases and later expressed fear about testifying, there is no evidence that trial counsel failed to prepare him adequately. Any unpreparedness on Dr. Williams's part is attributed to him, not to trial counsel's effectiveness.
Regarding trial counsel's use of Dr. Gwaltney, the decision to utilize him as a witness was considered a reasonable strategic choice, particularly since he was willing to testify and could support the same mitigating factors as Dr. Williams. Trial counsel supplemented Dr. Gwaltney's testimony with additional witnesses who discussed the appellant's troubled background.
The appellant's claims concerning Dr. Gwaltney’s alleged unpreparedness are also dismissed. Contrary to the appellant's assertion that Dr. Gwaltney requested a continuance, trial counsel stated that Dr. Gwaltney was eager to testify. Dr. Gwaltney had conducted extensive evaluations, including psychological tests and interviews, indicating he was adequately prepared for the mitigation hearing.
Appellant contends that trial counsel was ineffective for not calling Dr. Williams as a witness to testify about his emotional and mental disturbance during the murders. However, trial counsel was aware that Dr. Gwaltney disagreed with Dr. Williams and claimed he would effectively discredit Dr. Williams' testimony. Consequently, trial counsel opted not to present conflicting expert testimony, which was deemed a reasonable strategic decision. Thus, the claim of ineffective assistance regarding expert psychological testimony is rejected.
Additionally, appellant asserts actual innocence regarding Kathy Wiseman's murder, arguing that he did not fire the second shot, which he believes should impact his eligibility for the death penalty. This claim is multifaceted: it includes a request to excuse procedural default based on actual innocence, a stand-alone claim of actual innocence, and an argument that the absence of the second shot negates the vileness aggravating circumstance. Both the Schlup and Herrera standards fail to support appellant's claims, as under Virginia law, he could still be guilty of capital murder even if he did not fire the second shot. The medical examiner confirmed that the first shot was lethal, and Virginia's capital murder statutes hold all participants in a fatal incident accountable as immediate perpetrators. Precedent from Virginia case law reinforces that a conviction can be upheld under similar circumstances. Therefore, appellant's claims of actual innocence are rejected.
Appellant's claim based on Sawyer is unconvincing, as he argues that not firing the second shot should exempt him from the death penalty due to the absence of the aggravating factor of vileness. To qualify for this factor, conduct must be "outrageously or wantonly vile," which includes elements such as torture or depravity of mind. Even if the second shot did not constitute aggravated battery due to the time lapse, the Virginia Supreme Court indicated that the appellant's actions still displayed depravity of mind due to premeditation and execution-style killings, regardless of remorse. Thus, the appellant remains eligible for the death penalty, rendering his claim unsuccessful.
Moreover, the appellant contends that the district court erred in denying his requests for a forensic expert, the deposition of Jessica Wiseman, and the deposition of Dr. Williams to support his actual innocence claim and ineffective assistance of counsel claim. For discovery in a habeas proceeding, the petitioner must demonstrate good cause. The court found no abuse of discretion in denying these requests, as the appellant did not meet the required showing. Even if the forensic expert or Wiseman could prove he didn't fire the second shot, the actual innocence claim would still fail legally. Additionally, Dr. Williams' testimony would not affect the reasonableness of trial counsel's strategic decisions. An evidentiary hearing is required only if a factual dispute could lead to relief, which was not the case here. Therefore, the district court acted appropriately in denying the appellant's requests.
Appellant argues that the district court incorrectly applied the deferential standard of review under 28 U.S.C. § 2254(d) by focusing solely on whether his claims were "decided" by a state court rather than whether they were "adjudicated on the merits." However, case law establishes that "adjudication on the merits" only excludes claims not raised in state court, not those decided summarily. Appellant also contends that the district court failed to assess whether the Virginia procedural default rule from Slayton v. Parrigan constituted an adequate state ground for decision. The court has consistently recognized the Slayton rule as such, and appellant has not demonstrated any inconsistency in its application by Virginia courts. Consequently, the district court's enforcement of the default on claims barred under Slayton is upheld, and appellant's challenge is rejected. Following the dismissal of his federal habeas corpus petition, Thomas sought a certificate of appealability, which was denied due to his failure to show a substantial constitutional right violation, leading to the dismissal of his appeal. Additionally, even if his federal constitutional claim were not procedurally defaulted, it would still be rejected as he failed to argue why a jury imposing a capital sentence on a juvenile constitutes a constitutional violation. Appellant's reference to Hicks v. Oklahoma is deemed inapposite, as he cannot demonstrate an arbitrary deprivation of due process similar to that case.
Appellant did not testify at trial and only recently submitted an affidavit denying he fired the second shot. He argues that trial counsel could not confront him with Dr. Williams' testimony, as the report was dated after the last meeting with counsel. However, this claim is undermined by an earlier letter from Dr. Williams, dated March 13, 1991, indicating the possibility that appellant did not fire the second shot. Trial counsel had also advised appellant that there was no need to protect Jessica Wiseman, who had already been sentenced. Appellant's mother later provided an affidavit stating he claimed he did not fire the second shot, but trial counsel had prior difficulties in obtaining her cooperation. The only forensic evidence presented by appellant, a report from a forensic expert, was not submitted to any lower court, and there is no evidence of any prohibition against its presentation. Even if trial counsel's investigation was deemed unreasonable, it would not have been prejudicial since appellant would still be guilty of capital murder for firing the first shot. Although Dr. Williams' time records indicate minimal direct meetings with trial counsel, they do not account for potential extensive phone conversations. Appellant also claims trial counsel ignored advice from Dr. Gwaltney to consult another expert, Dr. Gary Hawk, but there is no indication that trial counsel had concerns about Dr. Williams until just before sentencing. The district court did grant several of the defendant's other discovery requests.
