In Re: Daniel Braxton, Warden, Sussex I State Prison Mark L. Earley, Attorney General of Virginia Samuel H. Cooper, Clerk, Accomack County Circuit Court, Brian Lee Cherrix v. Daniel Braxton, Warden, Sussex I State Prison

Citations: 258 F.3d 250; 2001 U.S. App. LEXIS 15418Docket: 01-1

Court: Court of Appeals for the Fourth Circuit; July 9, 2001; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Daniel Braxton, Warden of Sussex I State Prison, appeals a district court order that granted Brian Lee Cherrix, a death row inmate, the right to preserve and retest DNA evidence from his capital murder case. The Commonwealth, including Virginia's Attorney General Mark L. Earley and Accomack County Circuit Court Clerk Samuel H. Cooper, also seeks a writ of mandamus to vacate this order. The Fourth Circuit Court of Appeals dismisses the Warden's appeal due to lack of jurisdiction and denies the Commonwealth's petition for extraordinary relief, finding it unjustified.

Cherrix was sentenced to death for the 1994 murder of Tessa Van Hart, who was assaulted and shot during a pizza delivery. The case went unsolved for over two years until Cherrix, while incarcerated on unrelated charges, offered information about the murder in exchange for leniency. Initially, he implicated his deceased cousin, Robert Birch, III, claiming Birch had confessed to the crime. Despite the recovery of a rifle consistent with the murder weapon, prosecutors could not definitively link it to the crime. Cherrix's accounts varied significantly over time, culminating in an oral confession to police that he had committed the murder.

Cherrix, accompanied by Lewis and an Accomack County Sheriff's Deputy, identified locations related to his confession, which Lewis transcribed but Cherrix refused to sign. Cherrix has made various claims that his confession was false, coerced, or obtained without counsel. He argues that it is not unusual for individuals to confess to crimes they did not commit. The primary evidence against him, aside from his confession, was a .22 caliber Marlin rifle, which witnesses testified he owned but no longer had shortly after the murder. The recovered rifle matched descriptions of Cherrix's gun, which was broken and taped but lacked a distinctive squirrel carving present on Cherrix's original firearm.

Cherrix pleaded not guilty, asserting an alibi that he was caring for his infant daughter at his grandmother's home during the murder, while claiming he spoke to his wife in the hospital. His estranged wife contradicted this, stating he did not call until after the murder timeframe. However, his grandmother supported his alibi, testifying about the timing of the call. In subsequent habeas proceedings, Cherrix introduced evidence regarding hospital policies on terminating calls.

In 1994, DNA testing on seminal fluid from the victim's body produced inconclusive results for the spermatozoa fractions but was consistent with the victim’s DNA in non-spermatozoa fractions. The district court noted advancements in DNA testing technology since 1994, which could potentially identify the donor of the seminal fluid more conclusively. This request for DNA retesting is Cherrix's first in any legal proceeding. His convictions and death sentence had been upheld by the Virginia Supreme Court, which also denied a rehearing. The U.S. Supreme Court subsequently denied his certiorari petition. After filing a habeas corpus petition, which was dismissed, Cherrix's execution was initially scheduled for August 16, 2000, but was stayed by a federal district court the day prior, granting him counsel.

Cherrix filed a motion for DNA retesting of evidence related to Van Hart's murder before submitting a federal habeas corpus petition. While this motion was pending, he requested the court to mandate ten state agencies to preserve relevant evidence. The Warden opposed this request, but on December 12, 2000, the district court conditionally granted Cherrix's motion, ordering the preservation of all evidence, including bodily fluids. Cherrix subsequently filed his habeas petition on December 28, 2000, and on January 9, 2001, the court approved funding for DNA retesting and directed the Commonwealth to provide the necessary evidence for analysis. The Warden's motion to stay this order was denied, leading the Commonwealth to seek an emergency stay and file a petition for a writ of mandamus.

On February 5, 2001, the court granted the Commonwealth's emergency stay pending appeal. Following this, the district court provided a detailed supplemental opinion on February 28, 2001, reaffirming its January 9 order, which had three justifications: 1) authorization under 21 U.S.C. § 848(q) for funding necessary to support a habeas petition; 2) the necessity of DNA retesting to support claims of actual innocence; and 3) good cause for retesting under Rule 6(a) of the Rules Governing § 2254 Cases.

The court acknowledged that Cherrix's habeas petition raised significant constitutional questions regarding his trial. The potential outcomes of the DNA test were outlined: inconclusive results would render the subsequent legal inquiries moot; positive results identifying Cherrix as the perpetrator would negate his claims of innocence.

Test results indicating a third party deposited seminal fluid into Ms. Van Hart's body may impact the Court's decision on Cherrix's federal habeas relief, contingent upon the discovery of this DNA evidence. The Warden seeks to overturn the district court's January 9, 2001 Order under 28 U.S.C. § 1292(a)(1) or alternatively requests a writ of mandamus to vacate the order. The document emphasizes the federal court system's reluctance to permit piecemeal appellate reviews, citing precedents that discourage interlocutory appeals unless exceptional circumstances arise. The Warden argues that the order effectively functions as an injunction requiring specific actions from the Warden and others, with non-compliance punishable by contempt. However, non-final orders typically are not appealable under § 1292(a)(1) if they do not address the merits of the case. The district court's order facilitates discovery relevant to Cherrix's habeas petition but does not guarantee relief, as even DNA results excluding Cherrix as the semen donor do not automatically lead to exoneration. The Court's role was to evaluate the necessity of DNA testing for Cherrix's case without making definitive claims regarding his innocence.

The January 9, 2001 Order is a procedural step in the litigation concerning a habeas action, not addressing the merits of the case. The district court has yet to consider the admissibility of DNA retesting results. An interlocutory order may be subject to appeal under § 1292(a)(1) if it poses serious, potentially irreparable consequences and can only be effectively challenged through immediate appeal. The Warden argues that permitting DNA testing could lead to destruction of evidence, loss of chain of custody, damage to federalism, and an influx of similar requests to federal courts.

However, the district court clarified that its order only mandated preservation and funding for testing, not final testing itself. A hearing is planned to establish conditions for DNA testing, ensuring all parties can address concerns regarding evidence integrity. The court referenced procedural issues from a 1999 report on post-conviction DNA testing, indicating a structured approach will be taken. 

Even if evidence were destroyed, it would primarily affect Cherrix, who is already convicted and does not require the biological evidence for his execution. The Warden's claim of irreparable harm lacks explanation on how it would affect the Commonwealth's ability to use the evidence in potential retrials or clemency proceedings. The district court intends to safeguard the evidence's integrity and facilitate fair testing procedures, maintaining the chain of custody during the process.

The district court's January 9, 2001 Order related to Cherrix's case is examined in light of the Warden's assertions regarding its potential impact on the finality of state court convictions and the integrity of evidence. The Warden cites McCleskey v. Zant to argue that reexamining state convictions poses risks, but the court finds this unconvincing, stating that McCleskey does not support an immediate appeal of the interlocutory order since it only potentially affects the finality of Cherrix's conviction. The court emphasizes its statutory duty under 28 U.S.C. § 2254 to ensure the Commonwealth's actions align with Cherrix's constitutional rights, highlighting that finality should not come at the expense of those rights.

The Warden's claim that the order could lead to a surge of similar requests is dismissed for lack of evidential support, and the court argues that the judicial system can handle such motions appropriately. The Warden also contends that without immediate appeal, the Commonwealth risks compromising evidence, but the court rejects this view, stating it would lead to excessive piecemeal appeals, which the system seeks to avoid. Consequently, the court concludes that the January 9, 2001 Order is subject to review upon final judgment and that the Warden has not demonstrated that immediate appeal is necessary, leading to the dismissal of the Warden's appeal for lack of jurisdiction under § 1292(a)(1).

The Commonwealth sought a writ of mandamus under the All Writs Act to compel the district court to vacate its January 9, 2001 Order, arguing that the court lacked authority to: 1) require the Commonwealth to make evidence available for DNA retesting as per 21 U.S.C. § 848(q); 2) authorize funding for investigating Cherrix's Herrera claim, given the absence of free-standing habeas claims of actual innocence in Virginia; 3) order DNA retesting without allowing the Warden to respond to Cherrix's habeas petition regarding procedural default; and 4) grant Cherrix's request for DNA analysis despite his failure to request it in state court. 

For a writ of mandamus to be granted, the petitioner must demonstrate: 1) a clear right to the relief sought; 2) a clear duty of the responding party to perform the act requested; 3) that the act is official; 4) no other adequate means to attain relief; and 5) that issuing the writ will effect justice. The court noted that the Commonwealth could appeal the district court's order after final judgment, indicating that other adequate means existed to achieve the desired relief. Consequently, the court denied the Commonwealth's mandamus petition, emphasizing the need to limit the writ's use to extraordinary circumstances to prevent it from circumventing appellate procedures. The Warden's interlocutory appeal was dismissed for lack of jurisdiction, and the mandamus petition was denied.

The Commonwealth argued that the absence of a squirrel carving on the suspected murder weapon could be attributed to erosion from being submerged in a saltwater creek for an extended period; however, the rifle was retrieved just two years post-murder. The impact of saltwater on the rifle's wooden stock remains uncertain. The Commonwealth has consistently refused to voluntarily retest the evidence, despite Cherrix's request for DNA retesting, which the Commonwealth denied. The district court permitted testing at a private laboratory instead. A new Virginia statute allows for DNA testing in certain cases, but it is unclear if Cherrix qualifies, and the district court indicated that the statute is too late for him, making federal court his final option.

The Commonwealth objected to considering a Supplemental Opinion, claiming it was a post facto justification for earlier actions not mentioned in previous court orders. The court rejected this objection, stating the Supplemental Opinion aids in reviewing both the Commonwealth's mandamus petition and the Warden's appeal. The Commonwealth's petition was labeled as seeking a writ of mandamus; however, the distinction between mandamus and prohibition is often blurred in modern jurisprudence. The court noted that under the All Writs Act, the substance of the request is more critical than its form.

Additionally, the Warden contested the provision of evidence to support Cherrix's claim of actual innocence, arguing it was frivolous. The Warden referenced a previous unpublished ruling regarding the limitation of discovery for claims already deemed without merit, but the court found this reference unhelpful since it lacked precedential value.

Assuming the appealability of a discovery order under § 1292(a)(1) is linked to the underlying claim's cognizability, the Warden challenges only one of Cherrix's several grounds for habeas relief, specifically claiming that actual innocence is not a viable basis in the Circuit. However, Cherrix presents additional, valid grounds for relief. The Court dismisses the appeal due to lack of jurisdiction and does not address whether the Warden had standing to appeal. The Warden's argument that the district court relied on § 848(q) to compel the Commonwealth to provide evidence is contradicted by the court's January 9, 2001 Order, which cites the Federal Rules of Civil Procedure and constitutional principles as authority for evidence retention. The court only referenced § 848(q) to grant funding for DNA testing. The Commonwealth holds other means to challenge the order through an appeal of Cherrix's final habeas judgment, so the additional aspects of the mandamus test are not considered, nor is Cherrix's standing argument. The stay on the January 9, 2001 Order is lifted, and several motions are resolved: the Warden's motion for expedited proceedings is denied, his motion for reconsideration of a sealing order is denied, and Cherrix's unopposed motion to amend his brief is granted. Judge Traxler concurs, noting that Cherrix's initial motion for DNA retesting was primarily based on § 848(q), which aims to provide legal services for indigent defendants. There are ambiguities in the legal basis for the retesting order, raising concerns for the Commonwealth about evidence handling and the risk of contamination or loss of chain of custody.

The January 9, 2001 Order lacked safeguards to mitigate risks associated with DNA testing, prompting the Commonwealth to appeal under 28 U.S.C.A. § 1292(a)(1) and seek a writ of mandamus to vacate the order. The Commonwealth contended that the order, which directed state officials to turn over bodily fluids for DNA testing, could compromise the chain of custody by allowing the defendant, Cherrix, direct access to the samples. The district court later provided a Supplemental Opinion, clarifying that its order was based on the "good cause" standard from Habeas Rule 6(a) and included protective measures for evidence handling.

Despite the Commonwealth's argument that the Supplemental Opinion amounted to an improper amendment of the original order, the appellate court found it appropriate to consider this opinion in relation to both the mandamus petition and the appeal. The Supplemental Opinion offered necessary safeguards and addressed the Commonwealth's concerns by ensuring proper evidence handling. The appellate court noted that the district court retained jurisdiction to act on matters aiding the appeal, supporting the inclusion of the Supplemental Opinion in their review process. This approach promotes judicial economy and clarifies the handling of evidence for both parties involved.

The district court's order is deemed unlikely to cause "serious, perhaps irreparable, consequence," and it cannot be effectively challenged through immediate appeal. Therefore, the Commonwealth is not entitled to immediate review or a writ of mandamus. Mandamus relief is inappropriate as the district court was exercising discretion, and such relief is considered extraordinary. The traditional purpose of a writ of mandamus is to ensure that inferior courts remain within their lawful jurisdiction, not to replace the appellate process. Concerns arise when mandamus is sought against a lower court during ongoing litigation, as it can create an adversarial dynamic between the petitioner and the district court. A petitioner must show a "clear abuse of discretion" to qualify for mandamus, which is harder to establish when the district court is acting within its discretionary authority. Additionally, mandamus relief is only available under extraordinary circumstances, requiring that no adequate alternative means exist and that the right to issuance is "clear and indisputable."

The writ of mandamus is not applicable when the issue is merely an alleged error by district courts regarding matters within their jurisdiction. In Schlagenhauf v. Holder, the court clarified that a decision to grant or deny discovery under Habeas Rule 6(a) is a discretionary act of the district court. Even if the court incorrectly determined that "good cause" existed, it would still be an error within its jurisdiction, thus not warranting mandamus relief. The Commonwealth's concerns about the district court exceeding its authority were somewhat justified prior to the court's Supplemental Opinion, as the initial January 9, 2001 Order did not explicitly cite Rule 6(a) or mention "good cause." Cherrix's motion for DNA retesting was based solely on 21 U.S.C. § 848(q), and the district court lacked authority under Rule 6 as Cherrix had not yet filed his § 2254 petition. Although § 848(q) could allow for federal funding related to Cherrix's petition, it does not authorize the issuance of discovery orders. Ultimately, if "good cause" is not established for DNA retesting, the Commonwealth can address its concerns on appeal after the district court's final decision, leading to the conclusion that a writ of mandamus cannot be issued in this situation.