Derek Rocco Barnabei v. Ronald J. Angelone, Director, Virginia Department of Corrections

Citations: 214 F.3d 463; 2000 U.S. App. LEXIS 12183; 2000 WL 718344Docket: 99-16

Court: Court of Appeals for the Fourth Circuit; June 5, 2000; Federal Appellate Court

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Derek Rocco Barnabei was convicted by a Virginia jury on June 14, 1995, for the rape and murder of 17-year-old Sarah Wisnosky, a student at Old Dominion University, and sentenced to death. After exhausting state appeals, Barnabei sought federal habeas relief, which the district court dismissed. The case details reveal that Wisnosky's body was discovered in the Lafayette River on September 22, 1993. An autopsy indicated she had suffered at least ten severe blunt force injuries to her head, leading to skull fractures, and exhibited signs of mechanical asphyxia. Additionally, there were bruises on her abdomen, neck, and genital area, with an anal tear consistent with forcible stretching, suggesting sexual assault. The medical examiner concluded that while there was some fluid in her lungs, drowning was not the cause of death; rather, the head injuries were the primary cause, with mechanical asphyxia as a contributing factor. The last person to see Wisnosky alive was her roommate, Nicki Vanbelkum, on the afternoon of September 21, 1993. The court affirmed the dismissal of Barnabei's habeas petition without granting a certificate of appealability.

Barnabei, a Caucasian who moved to Norfolk Virginia Beach in August 1993, identified himself as 'Serafino' or 'Serf' Barnabei and claimed membership in the Tau Kappa Epsilon (TKE) fraternity from Rutgers University. He quickly integrated with TKE members at Old Dominion University (ODU), renting a room with four other male students. Barnabei developed a friendship with Wisnosky, and they attended several social events together, including a TKE toga party where Wisnosky became intoxicated and stayed overnight in Barnabei's room. Despite this, Barnabei distanced himself from her during the party, instructing a fellow TKE member to keep her away due to his interest in someone else.

The following day, Barnabei became upset during a fraternity meeting after Walton recounted Wisnosky's comment about their relationship, which led Barnabei to deny any sexual intercourse, claiming they had only engaged in oral sex. On September 22, 1993, after a TKE pledge meeting, Barnabei returned home with Wisnosky still in his room. Later, neighbors complained about loud music from Barnabei's room, and attempts to contact him went unanswered.

In a separate incident that night, Barnabei confronted another housemate about a blocked vehicle, took his keys, and drove erratically, nearly colliding with parked cars before leaving the scene. At around 2:30 a.m., another housemate, Dewall, knocked on Barnabei's door, observing him stark naked and in a disoriented state. When another housemate, Wirth, saw Barnabei later that morning, he found him asleep on the couch and noticed a shoe belonging to Wisnosky near Barnabei's car. Barnabei later called another TKE pledge, asking for a blanket, and his waterbed was found without sheets, differing from previous arrangements.

On September 22, Barnabei was observed by Dewall's girlfriend carrying a duffle bag and a surfboard. Later that afternoon, he offered TKE pledge Richard Patton a ride to a fraternity event and asked Patton to take the surfboard to his room, explaining he was tired of carrying it. Patton noticed a foul odor in Barnabei's car, attributed to a large duffle bag that Barnabei claimed contained laundry. Subsequently, Barnabei called Anderson, mentioning he was going away for a few days to work with his dad. He traveled to Towson, Maryland, and later Ohio, where he was arrested in December 1993.

On September 23, police searched Barnabei's rooming house, recovering a bloodstained shoe belonging to Wisnosky, bloodstained socks, and a towel with dark red stains. After interviewing residents, police obtained a search warrant for Barnabei's room, which appeared abandoned. They discovered bloodstains on a waterbed, a wall, and under a carpet, as well as on the surfboard taken to Patton's room. A handwritten note reading, "Women just don't get it," was also found.

Forensic analysis found sperm on Wisnosky's vaginal swabs, blood under her fingernails, and on various items, including the surfboard and towels. A DNA analysis confirmed that blood from the waterbed matched Wisnosky's, with a probability of one in 202,000 that it belonged to someone else. Another analysis indicated a one in 972 million chance that Barnabei did not contribute the sperm found on Wisnosky. Further tests showed the blood on the surfboard, shoe, and wall was consistent with Wisnosky's type. A hair analysis revealed pubic hairs on the socks similar to Wisnosky’s but dissimilar to Barnabei's.

Barnabei's conviction and sentence were upheld by the Supreme Court of Virginia, which denied his rehearing petition. After the U.S. Supreme Court denied his writ of certiorari, he sought state habeas relief, which was dismissed by the Virginia Supreme Court for procedural defaults and lack of merit in several claims.

Barnabei petitioned the district court for federal habeas relief, contesting his conviction and sentence on multiple grounds. The district court addressed most of his claims on their merits, despite some being previously deemed procedurally barred by the Supreme Court of Virginia under the Hawks v. Cox rule, which states that prior determinations on issues are conclusive in state habeas cases. Other claims were found procedurally defaulted under Slayton v. Parrigan, which prohibits raising arguments not presented at trial or on direct appeal during habeas review. Barnabei failed to demonstrate cause for these defaults, leading to the dismissal of his petition.

On appeal, Barnabei raised five challenges: (1) ineffective assistance of trial counsel for not adequately contesting forensic evidence of rape; (2) ineffective assistance for failing to object to the death penalty verdict form; (3) the vagueness of the "vileness" aggravating factor used for death sentences; (4) violation of due process from the admission of ex-wife testimony during the penalty phase; and (5) the trial court's failure to inform the jury about parole ineligibility associated with a life sentence. Additionally, he argued that the district court abused its discretion in denying forensic testing of evidence and applied an incorrect standard of review.

The legal standard for federal habeas relief under 28 U.S.C. § 2254(d) requires that a claim previously adjudicated in state court can only be granted if it meets specific criteria: the state court's decision must either be contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts. The Supreme Court clarified that "unreasonable" must exceed mere incorrectness, focusing on the objective reasonableness of the state court's application of federal law, rather than subjective interpretations.

Barnabei contends that the Supreme Court of Virginia's minimal reliance on federal law in rejecting his claims during direct appeal and state habeas proceedings necessitates a de novo review of his federal habeas claims by the district court. He cites prior cases indicating that the deferential standard of review under section 2254(d) is difficult to apply when state courts do not clarify their application of federal law. Despite this, it is established that even a cursory state court ruling qualifies as an 'adjudication on the merits' for federal habeas review, thus precluding de novo review.

The district court properly conducted an independent assessment of Barnabei's claims, ensuring compliance with established precedents. Although the district court mischaracterized the distinction between de novo and 'reasonableness' review as 'less significant' instead of 'insignificant,' it effectively acknowledged the implications of the prior state court ruling while evaluating the merits of Barnabei's claims in detail, adhering to the constraints of section 2254(d).

In his main argument, Barnabei asserts that he was denied his Sixth Amendment right to effective assistance of counsel due to his trial attorney’s failure to introduce medical evidence that could undermine the Commonwealth's allegations of rape. Specifically, he argues that his counsel should have presented evidence indicating that a vaginal bruise could result from consensual sex or other non-sexual activities, as well as contesting the forensic finding of such a bruise. This evidence is crucial since Barnabei's capital murder conviction and potential death penalty eligibility hinge on the jury’s determination that he murdered Sarah Wisnosky during a rape.

To establish ineffective assistance of counsel, Barnabei must satisfy the two-prong standard from Strickland v. Washington, demonstrating that his counsel’s performance was objectively unreasonable and that there is a reasonable probability that the outcome would have differed if not for these errors.

Barnabei references medical literature and expert affidavits indicating that vaginal contusions may arise from consensual sex or other activities, not exclusively from rape. A physician noted that the existence of a contusion should not be assumed without further forensic testing. Barnabei contends that trial counsel's failure to consult medical experts constituted unreasonable and prejudicial performance under the Strickland standard, asserting that such consultation would have led to a more effective cross-examination of the Commonwealth's key witness, Dr. Faruk Presswalla, and potentially allowed for independent rebuttal evidence and a defense expert's appointment.

The district court agreed that trial counsel's lack of investigation was unreasonable but concluded that Barnabei failed to demonstrate prejudice, as required by Strickland’s second prong. The court found that the cumulative evidence at trial—comprising a vaginal bruise, an anal tear occurring near the time of death, eyewitness testimony, forensic links between Barnabei and the victim, and Barnabei's admission of sexual contact—strongly indicated his guilt for both rape and murder. Although Barnabei argues that each piece of evidence could be interpreted as consistent with consensual sex, the court rejected this view, asserting that the convergence of such unlikely scenarios was implausible. Additionally, the trial counsel successfully elicited from Dr. Presswalla that a vaginal bruise could have alternative explanations, further undermining Barnabei's claim of prejudice due to inadequate cross-examination.

Barnabei was not prejudiced by his trial counsel's performance regarding the challenge to the Commonwealth's forensic and DNA evidence of rape. He claimed ineffective assistance due to counsel's failure to object to the jury's verdict form in the death penalty phase, which used the conjunction 'and/or' for the two aggravating factors required for a death sentence: future dangerousness and vileness. Barnabei argued that this wording allowed for a death sentence without jury unanimity on either factor, a position based solely on state law. The Supreme Court of Virginia found no merit in his claim during state habeas review, indicating that failing to object did not constitute ineffective assistance. The court emphasized deference to the state court's ruling, which had previously allowed such verdict forms without requiring jury unanimity on a specific aggravating factor. Additionally, Barnabei's challenge to the vagueness of the 'vileness' aggravator had been previously rejected by federal courts, confirming the constitutional validity of Virginia's aggravation criteria. Therefore, Barnabei's arguments regarding both the verdict form and the vagueness of the 'vileness' aggravator were dismissed.

Barnabei claims he was denied due process during his trial's penalty phase due to his ex-wife Paula Barto's testimony regarding an alleged attempt by Barnabei to force her into non-consensual sexual acts. He requested that the prosecution notify him of any evidence of unadjudicated criminal conduct, which the prosecution did three weeks prior to the trial by describing a pattern of threatening and assaultive behavior towards Barto. Barnabei's argument centers on the notions of unfair surprise and misrepresentation by the prosecution. 

Despite the Commonwealth's assertion that Barnabei procedurally defaulted this claim, the trial counsel objected strongly to Barto's testimony, indicating it was suspiciously timed and requested that it be stricken, along with a mistrial. The objection was rooted in concerns about fundamental fairness, not solely state law. Although Barnabei did not pinpoint a specific constitutional provision at the time, he later connected his argument to violations of his federal rights on direct appeal, which the Supreme Court of Virginia dismissed without addressing federal law.

The court examined Barnabei's claims on their merits and determined he could not succeed. Citing the precedent set in Gray v. Netherland, it noted that similar arguments about insufficient notice regarding evidence were previously rejected. In Gray, the Supreme Court established that a claim for habeas relief requires adherence to established constitutional rules at the time of conviction; thus, Barnabei's assertion regarding inadequate notice and the need for a continuance or exclusion of evidence lacked sufficient constitutional foundation to prevail.

The Court distinguished Barnabei's case from Gardner v. Florida, where a death sentence was vacated due to the petitioner’s lack of access to a presentence investigation report, preventing any opportunity to contest the evidence. In contrast, Barnabei had the chance to witness and cross-examine testimony in court. The Court rejected the dissent's broader constitutional rule requiring a capital defendant to have a meaningful opportunity to contest evidence at sentencing, as established in Gardner. Although Barnabei argued that the Commonwealth's prior notice of evidence was inadequate, the Court noted that the notice provided was better than that in Gray and that the evidence against Barnabei was less severe than the double murder case in Gray. Ultimately, the Court found no basis to vacate Barnabei's sentence based on the constitutional rule he sought to invoke, which had been explicitly denied by the Supreme Court in Gray. Additionally, regarding Barnabei's claim of prosecutorial misrepresentation, the Court stated that even if the prosecution's notice was vague, it did not rise to the level of constitutional violation. Unlike the deception in Mooney v. Holohan, the prosecution’s actions here did not constitute a deliberate infringement of Barnabei’s rights.

Barnabei asserts violations of his due process and Eighth Amendment rights based on the trial judge's refusal to instruct the jury that he would be ineligible for parole for twenty-five years if sentenced to life imprisonment. However, circuit precedent mandates such an instruction only when a defendant is parole ineligible, and since Barnabei would be eligible for parole after twenty-five years, the Simmons rule does not apply. 

Barnabei further claims the district court abused its discretion by denying requests for additional DNA and forensic testing and argues ineffective assistance of counsel under Strickland for failing to pursue this testing. He emphasizes the importance of testing evidence such as blood from fingernail clippings of victim Sarah Wisnosky and other untested items. The court notes that under Rule 6(a) of the Rules Governing § 2254 Cases, additional discovery requires a showing of "good cause," which Barnabei has not established. Unlike cases cited by Barnabei, where additional testing could provide credible alternative theories of innocence, his situation lacks similar compelling evidence.

Additionally, the court finds no ineffective assistance of counsel, as the trial presented substantial forensic evidence implicating Barnabei, rendering the failure to seek further testing insufficient to meet the Strickland standard. Consequently, Barnabei's constitutional claims do not warrant additional DNA testing. The request for a certificate of appealability is denied, and the district court's dismissal of the habeas corpus petition is affirmed. The court has also considered various supplemental memoranda submitted by the parties post-oral argument.