Cherrix v. Braxton ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: DANIEL BRAXTON, Warden, 
Sussex I State Prison; MARK L.
EARLEY, Attorney General of
Virginia; SAMUEL H. COOPER, Clerk,  No. 01-1
Accomack County Circuit Court,
Petitioners.

BRIAN LEE CHERRIX, 
Petitioner-Appellee,
v.
 No. 01-2
DANIEL BRAXTON, Warden, Sussex I
State Prison,
Respondent-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-00-1377-AM)
Argued: June 5, 2001
Decided: July 9, 2001
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Appeal dismissed and petition for mandamus denied by published
opinion. Judge King wrote the opinion, in which Judge Motz joined.
Judge Traxler wrote a concurring opinion.
2 IN RE BRAXTON
COUNSEL
ARGUED: Pamela Anne Rumpz, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Michele Jill Brace, VIRGINIA CAPITAL REPRESEN-
TATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellee. ON BRIEF: Robert L. Jenkins, Jr., BYNUM & JENKINS,
P.L.L.C., Alexandria, Virginia; Peter Neufeld, Barry Scheck, The
Innocence Project, BENJAMIN CARDOZO SCHOOL OF LAW,
New York, New York, for Appellee.
OPINION
KING, Circuit Judge:
Daniel Braxton, the Warden of Sussex I State Prison in Virginia
(the "Warden"), appeals from the district court’s order granting the
motion of Brian Lee Cherrix, a death row inmate seeking federal
habeas relief, for preservation and deoxyribonucleic acid ("DNA")
retesting of the prosecution’s evidence in his capital murder case.
Alternatively, the Warden, along with Mark L. Earley, Attorney Gen-
eral for Virginia, and Samuel H. Cooper, Clerk of the Accomack
County Circuit Court (collectively, the "Commonwealth"), seeks a
writ of mandamus to compel the court to vacate its order. For reasons
explained below, we dismiss the Warden’s interlocutory appeal for
lack of jurisdiction, and we deny the Commonwealth’s petition for
extraordinary relief as unjustified.
I.
A.
Cherrix was sentenced to death for the January 27, 1994 capital
murder of Tessa Van Hart.1 Van Hart, then twenty-three, was sodo-
1
Cherrix was also convicted of forcible sodomy, using a firearm in the
commission of a felony (two counts), and possessing a firearm after
being convicted of a felony, all arising from the same incident.
IN RE BRAXTON 3
mized and shot twice in the head after being dispatched for a pizza
delivery on Chincoteague Island. See Cherrix v. Commonwealth, 513
S.E.2d 642, 645-46 (Va. 1999) (setting forth a detailed factual history
of the crime). Her murder went unsolved for more than two years. On
June 3, 1996, while Cherrix was incarcerated in the Accomack
County Jail on unrelated charges, he offered to share information with
police about the Van Hart murder in exchange for leniency with
respect to his pending sentencing. Cherrix initially told authorities
that his cousin, Robert Birch, III, had divulged to Cherrix in February
1994 that Birch had killed Van Hart — first luring her to an unoccu-
pied residence by ordering a pizza, then raping and shooting her, and
finally ditching his gun in a nearby creek.
Birch, who had died in 1995, was ruled out as a suspect. However,
when Cherrix led investigators to the spot in the creek where Birch
had supposedly told him the murder weapon was discarded, divers
searching that location recovered a .22 caliber Marlin rifle. (This
gun’s patterns were consistent with the bullets recovered from Van
Hart’s body, although the prosecution’s firearms experts could not
identify this rifle specifically as the murder weapon.) Cherrix occa-
sionally lapsed into use of the first person in describing how and
where the gun ended up in the creek. Moreover, later the day the gun
was recovered, during a police interview, Cherrix gave several differ-
ing versions of Birch’s alleged disclosures, and he used hand and arm
gestures to demonstrate how Birch had purportedly claimed to have
dumped the rifle. Then, on April 16, 1997, while being transported
back to Accomack County Jail on still different charges, Cherrix told
police yet another version of Birch’s supposed description of the mur-
der. Finally, according to authorities, on April 25, 1997, Cherrix
orally confessed to Edward Lewis, Chincoteague’s Assistant Police
Chief, that he, Cherrix, had murdered and sodomized Van Hart.
Accompanied to Chincoteague by Lewis and an Accomack County
Sheriff’s Deputy, Cherrix then pointed out various spots that he had
described in his confession.
1.
Cherrix’s confession was reduced to handwriting by Lewis, pur-
portedly as dictated by Cherrix, who later refused to sign it. The Com-
monwealth emphasizes that Cherrix has variously, and inconsistently,
4 IN RE BRAXTON
suggested that his confession was false, inaccurately transcribed,
coerced, and obtained in violation of his right to counsel. Cherrix
counters that even if he did confess, it is not unprecedented for an
accused to confess to a crime that he did not actually commit.
According to Cherrix, the only evidence connecting him to Van
Hart’s murder, other than his confession, was the .22 caliber Marlin
rifle. Witnesses testified at trial that Cherrix had owned just such a
gun, that he no longer possessed it several days after the crime, and
that his gun had a broken, taped stock like the rifle recovered from
the creek. There was also testimony, however, that Cherrix’s gun had
a squirrel carved on the stock. There is no indication in the record that
the rifle recovered from the creek bore such a carving.2
Cherrix pleaded not guilty to the charges against him, presenting
an alibi defense at trial. Cherrix maintained that, at the time Van Hart
was killed, he was caring for his six-week-old daughter at his grand-
mother’s home while speaking on the telephone with his wife, who
had undergone an emergency appendectomy earlier that day. This
defense was refuted at trial by Cherrix’s then-estranged wife, who tes-
tified that Cherrix did not call her at the hospital until after 9 o’clock
that night — outside the window of time in which Van Hart’s murder
occurred. The alibi was supported, however, by Cherrix’s grand-
mother, who testified that the phone call occurred at about 8 o’clock
or 8:15. In state habeas proceedings, Cherrix presented additional evi-
dence that it had been the hospital’s policy to terminate all patient
telephone conversations at 9 o’clock.
2
The Commonwealth maintains that the lack of reference in the record
to any squirrel carving on the rifle recovered from the creek supports the
inference that there was such a carving on that gun; Cherrix contends,
conversely, that the record’s silence suggests that no such carving was
evident. The Commonwealth responded at oral argument that if the sus-
pected murder weapon did not bear a squirrel carving, this marking must
have eroded from the rifle after "years and years and years" in the saltwa-
ter creek. Actually, the rifle was recovered from the creek only two years
after the murder. And it is unclear, in any event, what effect the saltwater
might have had on the gun’s wooden stock.
IN RE BRAXTON 5
2.
In 1994, some two years before Cherrix’s confession, DNA testing
was conducted on seminal fluid collected from Van Hart’s anus. In
conjunction with her autopsy, the medical examiner divided the mate-
rial taken from her body into spermatozoa and non-spermatozoa frac-
tions, which were then subjected to a type of DNA analysis termed
polymerase chain reaction ("PCR") testing. The non-spermatozoa
fractions were consistent with the DNA collected from Van Hart. Due
to an inability to amplify the spermatozoa fractions, however, the
PCR test results on those fractions were inconclusive.
In authorizing the DNA retesting now in dispute, the district court
acknowledged that, because the prosecution’s theory of the case at
trial was that a lone assailant murdered and sodomized Van Hart, it
is reasonable to infer that the person whose seminal fluid was recov-
ered from Van Hart’s anus is her killer. The court also recognized that
DNA technology has advanced since the PCR tests were conducted
in this case in 1994, and that, according to Cherrix, the newer short
tandem repeat ("STR") and mitochondrial tests can conclusively iden-
tify the donor of the seminal fluid by evaluating substances other than
spermatozoa, such as epithelial cells and white blood cells.3
B.
This is the first time in any proceeding that Cherrix has requested
DNA retesting. Previously, the Supreme Court of Virginia upheld
Cherrix’s convictions and death sentence on direct appeal, conclud-
3
The Commonwealth has continued to maintain, through oral argu-
ment, that it has no plans to voluntarily retest the evidence. In fact, Cher-
rix initially sought DNA retesting in the state laboratory, but the
Commonwealth refused this request. The district court then authorized
testing in a private laboratory.
Moreover, though a new Virginia statute provides for DNA testing in
certain cases, see S. 1366, 2001 Sess. (Va. 2001) (enacted), it is not clear
whether Cherrix qualifies for retesting under this measure. According to
the district court, "this legislation comes too late for this habeas peti-
tioner, and the federal court is his last resort." Cherrix v. Braxton, 131
F. Supp. 2d 756, 787 (E.D. Va. 2001).
6 IN RE BRAXTON
ing, inter alia, that his confession was admissible, see Cherrix, 513
S.E.2d 642, and the court subsequently denied Cherrix’s request for
rehearing. The Supreme Court of the United States then denied his
petition for a writ of certiorari. See Cherrix v. Virginia, 528 U.S. 873
(1999). Cherrix filed a petition for a writ of habeas corpus in the
Supreme Court of Virginia on December 3, 1999, which the court dis-
missed on April 4, 2000.
Following the state supreme court’s denial of rehearing on June 9,
2000, the trial court scheduled Cherrix’s execution for August 16,
2000. The day before, however, the district court for the Eastern Dis-
trict of Virginia stayed Cherrix’s execution and granted his motion for
appointment of counsel.
1.
Prior to filing his federal petition for a writ of habeas corpus, Cher-
rix moved the district court for DNA retesting of the seminal fluid
collected from Van Hart’s body. While this motion was pending,
Cherrix filed another motion for the retention and preservation of evi-
dence, asking the court to order ten separate state agencies to preserve
the evidence pertaining to Van Hart’s murder and Cherrix’s prosecu-
tion. The Warden objected to the court ordering any state agencies to
act. On December 12, 2000, the district court conditionally granted
Cherrix’s motion for the retention and preservation of evidence,
directing the Commonwealth to preserve all evidence, including any
bodily fluids collected from Van Hart.
Cherrix then filed his petition in the district court for a writ of
habeas corpus on December 28, 2000. The court subsequently autho-
rized funding of DNA retesting and directed the Commonwealth to
make the requisite evidence available for analysis. See Cherrix v. Tay-
lor, No. 00-1377 (E.D. Va. Jan. 9, 2001) ("January 9, 2001 Order").
The following day, the court denied the Warden’s oral motion to stay
this order, ruling that the Warden had set forth no basis for his
request. That same day, the Commonwealth filed in this Court: (1) an
application for an emergency stay of the January 9, 2001 Order; (2)
a Petition for a Writ of Mandamus and/or Prohibition; and (3) the
Warden’s appeal of the January 9, 2001 Order. On February 5, 2001,
IN RE BRAXTON 7
we granted the Commonwealth’s application for an emergency stay
pending appeal.
Pursuant to Rule 21(b)(4) of the Federal Rules of Appellate Proce-
dure, we invited the district court to submit a response to the petition
for a writ of mandamus. The district court responded, on February 28,
2000, with a seventy-five-page supplemental memorandum opinion.
See Cherrix v. Braxton, 131 F. Supp. 2d 756 (E.D. Va. 2000)
("Supplemental Opinion"). Therein, the court "clarif[ies] and reaffir-
m[s]" its nine-page January 9, 2001 Order. See id. at 759.4
2.
In its Supplemental Opinion, the district court expounded that its
January 9, 2001 Order "granted the habeas petitioner’s request for
funds, and ordered that the custodians of the evidence make it avail-
able for testing, for three reasons." Cherrix, 131 F. Supp. 2d at 759.
First, the court determined that it was authorized, pursuant to 21
U.S.C. § 848(q), to provide funding for services which are reasonably
necessary to support a petition for habeas corpus. Second, the court
concluded that DNA retesting is reasonably necessary to support
Cherrix’s claims of actual innocence, see Herrera v. Collins, 506 U.S.
390, 417 (1993) (assuming without deciding "that in a capital case a
truly persuasive demonstration of ‘actual innocence’ made after trial
4
The Commonwealth contends that we should not consider this Sup-
plemental Opinion because, in part, it "appears to be just a post facto
attempt to justify its January 9 action on entirely new grounds which
were . . . entirely omitted from the district court’s January 9 order."
Reply in Support of Petition for Writ of Mandamus, at 15. We reject the
assertion that the Supplemental Opinion should not be considered,
because this submission was filed at our request and aids us in our con-
sideration of not only the Commonwealth’s mandamus petition, but also
the Warden’s appeal. See Fed. R. App. P. 21(b)(4) ("The court of appeals
may invite or order the trial-court judge to address the petition [for a writ
of mandamus.]"); In re Grand Jury Proceedings Under Seal, 947 F.2d
1188, 1199 (4th Cir. 1999) ("[A] district court does not lose jurisdiction
to proceed as to matters in aid of the appeal."). Moreover, though the
Supplemental Opinion is certainly more detailed than the January 9,
2001 Order, these documents do not, as the Commonwealth contends,
conflict with each other.
8 IN RE BRAXTON
would render the execution of a defendant unconstitutional"), and
innocence as a "gateway" to proving other constitutional claims, see
Schlup v. Delo, 513 U.S. 298, 327 (1995) (permitting a habeas peti-
tioner to show that a constitutional violation probably resulted in his
conviction, despite his innocence, by establishing that "it is more
likely than not that no reasonable juror would have convicted him in
the light of the new evidence"), as well as a potential clemency peti-
tion. Third, the court ruled that Cherrix showed good cause for DNA
retesting, entitling him to discovery pursuant to Rule 6(a) of the Rules
Governing § 2254 Cases and 28 U.S.C. § 2254(2)(A)(ii), (2)(B).
Without passing on Cherrix’s claims of innocence, the district court
determined that, at the very least, "the habeas petition raises disturb-
ing questions regarding the constitutionality of Cherrix’s trial pro-
ceedings that are heretofore unanswered." Cherrix, 131 F. Supp. 2d
at 786. The court also recognized that
[o]rdering a new DNA test has the potential of producing
three different outcomes. First, the test can prove inconclu-
sive, in which case no newly-discovered evidence would be
before the Court, and the Herrera inquiry [and, relatedly,
the Schlup inquiry,] would be futile. Second, the test results
can show that Cherrix sodomized Ms. Van Hart and depos-
ited the seminal fluid into her body, in which case the evi-
dence would moot his claims of innocence. Third, the test
results can show a third party deposited the seminal fluid
into Ms. Van Hart’s body. If the test results implicate a third
party, then the issue would be placed before the Court of
whether such evidence, coupled with other allegations of
constitutional error, would be sufficient to grant Cherrix
federal habeas relief. However, the DNA evidence must first
be brought before the Court in discovery prior to consider-
ation of the habeas corpus petition on the merits.
Id. at 765-66 (internal citations omitted).
II.
The Warden asks us, first, to reverse the district court’s January 9,
2001 Order pursuant to an exercise of our jurisdiction under 28
IN RE BRAXTON 9
U.S.C. § 1292(a)(1) (providing "jurisdiction of appeals from
[i]nterlocutory orders of the district courts of the United States . . .
granting injunctions"). Alternatively, the Commonwealth seeks a writ
of mandamus, under the All Writs Act, 28 U.S.C. § 1651, compelling
the district court to vacate its order.5
We cannot overemphasize the extraordinary nature of the remedies
sought here, stemming from the federal court system’s longstanding
disapproval of piecemeal appellate review. See, e.g., Switzerland
Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 25 n.3
(1966) (recognizing that interlocutory review of pretrial orders is "an
intolerable burden for us, an improper and uncertain interference with
trial court discretion, and a confusing invitation to indiscriminate
appeals in the future") (quoting Peter Pan Fabrics, Inc. v. Dixon Tex-
tile Corp., 280 F.2d 800, 806 (2d Cir. 1960) (Clark, J., dissenting));
Will v. United States, 389 U.S. 90, 95 (1967) (acknowledging that
"only exceptional circumstances amounting to a judicial ‘usurpation
of power’ will justify the invocation of" the writ of mandamus, an
"extraordinary remedy").
A.
We first address whether, pursuant to 28 U.S.C. § 1292(a)(1), we
possess jurisdiction over the Warden’s appeal from the district court’s
January 9, 2001 Order. This order, the Warden insists, "has the practi-
cal effect of an injunction in that it commands specific conduct from
5
The Commonwealth captioned its pleading as a "Petition for a Writ
of Mandamus and/or Prohibition." Because the terms "mandamus" and
"prohibition" have come to be used interchangeably with regard to writs,
we will, for the sake of simplicity, refer to the Commonwealth’s petition
as one seeking a writ of mandamus. See, e.g., In re Sch. Asbestos Litig.,
921 F.2d 1310, 1313 (3d Cir. 1990) ("Although a writ of mandamus may
appear more appropriate when the request is for an order mandating
action, and a writ of prohibition may be more accurate when the request
is to prohibit action, modern courts have shown little concern for the
technical and historic differences between the two writs. Under the All
Writs Act, the form is less important than the substantive question of
whether an extraordinary remedy is available.") (internal citations, quota-
tion marks, and alteration omitted).
10 IN RE BRAXTON
the Warden, Attorney General and Clerk of the trial court." Appel-
lant’s Br., at 11. Moreover, the Warden emphasizes, failure to comply
with the order is punishable by contempt.
However, a non-final order generally is not subject to interlocutory
appeal under § 1292(a)(1) if it is not directed to the merits of the
underlying action. See, e.g., Gulfstream Aerospace Corp. v. Mayaca-
mas Corp., 485 U.S. 271, 279 (1988) ("An order by a federal court
that relates only to the conduct or progress of litigation before that
court ordinarily is not considered an injunction and therefore is not
appealable under § 1292(a)(1)."); Lewis v. Bloomsburg Mills, Inc.,
608 F.2d 971, 973 (4th Cir. 1979) (holding that where "[t]he district
court’s order . . . regulates the conduct of discovery" and, thus, "is
merely a step in the litigation process and is in no way directed to the
merits of the underlying action[,] . . . the order is not appealable under
§ 1292(a)(1)"). It is irrelevant to this analysis that a violator of the
order may be held in contempt. See United States ex rel. Rahman v.
Oncology Assocs., P.C., 198 F.3d 502, 507 (4th Cir. 1999) ("[A]n
order compelling discovery involves an interlocutory command that
may be subject to the contempt power of the court, yet such an order
is not thought to be cognizable under § 1292(a)(1).").
In this case, the district court’s January 9, 2001 Order allows Cher-
rix to engage in discovery potentially supportive of his habeas peti-
tion, while recognizing that, even if the results of the DNA retesting
exclude Cherrix as the semen donor, he still is not necessarily entitled
to relief. As the court explained in its Supplemental Opinion, "The
new DNA testing methods could possibly procure conclusive evi-
dence demonstrating that a third person committed the murder and
sodomy which may ultimately exonerate the habeas petitioner of capi-
tal murder." Cherrix, 131 F. Supp. 2d at 759 (emphasis added); see
also id. at 786 ("This Court was called upon to make a judgment
about the reasonable necessity of DNA testing services to a con-
demned habeas petitioner’s case. This Court made no proclamation or
judgment about Cherrix’s claims of innocence."). Clearly, the January
9, 2001 Order is just a step in the litigation process that is not directed
to the merits of the underlying habeas action. At this juncture, the dis-
trict court has not yet even been presented with the question of the
admissibility of the DNA retesting results.
IN RE BRAXTON 11
Nonetheless, an interlocutory order may be appealable pursuant to
§ 1292(a)(1) if the appellant "can show that [this order] of the district
court might have a ‘serious, perhaps irreparable, consequence,’ and
that the order can be ‘effectually challenged’ only by immediate
appeal[.]’" Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981); see
also Gulfstream Aerospace, 485 U.S. at 287-88 (recognizing that this
analysis applies to "orders that have the practical effect of granting or
denying injunctions"); Oncology Assocs., 198 F.3d at 507 (same).
1.
The Warden maintains that the "serious, perhaps irreparable, conse-
quences" of permitting the DNA testing to go forward include: (1)
"the potential destruction of the Commonwealth’s evidence"; (2) "a
guaranteed loss of the chain of custody"; (3) "the undeniable damage
to federalism and finality that has ‘special importance’ in the context
of federal review of state court convictions"; and (4) "an opening of
the floodgates to a host of similar ill-advised demands upon the fed-
eral district courts." Appellant’s Br., at 12-13. We address these pur-
ported consequences in turn.
First, the Warden’s concern about destruction of the evidence is, at
best, premature. As the district court made clear, its January 9, 2001
Order
did not provide for the final testing of the evidence, only for
its preservation and for testing funds. At the time of the
Court’s January 9 Order — and presently — the Court
intended to conduct a hearing to determine how the DNA
testing would proceed. The Court expected both the Com-
monwealth and the parties to participate in structuring con-
ditions for the testing of the requested evidence in order to
protect the integrity of the evidence and to ensure equal
access to all parties.
The procedure the Court adopts for the analysis of the
evidence will address the Petitioners’ concern that Cherrix
may consume the remaining forensic evidence and that the
integrity of the evidence be maintained.
12 IN RE BRAXTON
Cherrix, 131 F. Supp. 2d at 771-72 (internal citations omitted).
Indeed, the district court went on to discuss at length the procedural
issues related to post-conviction DNA testing identified in a 1999
report sponsored by the Attorney General of the United States,6
including the type of DNA analysis to be utilized, the choice of labo-
ratory to perform the testing, and the amount of sample to be avail-
able for testing and replicate testing. See id. at 772-73.
Furthermore, even if the Commonwealth’s supposition were real-
ized and the evidence were destroyed, it is doubtful that harm would
flow to anyone other than Cherrix. That is, as Cherrix aptly points
out, he
already stands convicted and condemned, and the Common-
wealth does not need the biological evidence in order to
carry out his death sentence. . . . [This] evidence has been
sitting in some storage box(es) for years, and that is where
it will remain, untested and unused, unless the [Common-
wealth] is compelled to make it available.
Appellee’s Br., at 15. The Warden counters that, if the evidence is
consumed during retesting, the Commonwealth might lose the ability
to use it "on retrial if necessary or during clemency proceedings."
Appellant’s Reply Br., at 7. The Warden does not explain, however,
how this would lead to irreparable harm to the Commonwealth, i.e.,
why it would need the evidence for even more retesting. Most signifi-
cantly, the district court has stated its intention to protect the evi-
dence’s integrity and to conduct the DNA testing in an objective
manner with the participation of all parties. If the evidence is depleted
during this testing, these results could be used — or challenged — by
the Commonwealth upon any retrial or clemency proceeding.
Second, and similarly, with regard to the custody of the evidence
to be retested, the district court declared that it "fully intends to
impose procedures to protect the chain of custody when the Court
actually orders that the evidence be moved to permit the DNA test-
ing." Cherrix, 131 F. Supp. 2d at 772 n.13 (citing for comparison In
6
See National Commission on the Future of DNA Evidence, Postcon-
viction DNA Testing: Recommendations for Handling Requests (1999).
IN RE BRAXTON 13
re Warden, Kentucky State Penitentiary v. Gall, 865 F.2d 786, 788
n.1 (6th Cir. 1989) (stating that mandamus petitioner’s fears regarding
integrity of evidence and chain of custody appeared to be "vastly
overblown" because petitioner was free to send representative to mon-
itor retesting, and petitioner could argue the vitiating effects of time
if retesting produced different results)).
In support of his third purported consequence, the "undeniable"
damage to, in particular, the finality of state court convictions, the
Warden relies on the Supreme Court’s decision in McCleskey v. Zant,
499 U.S. 467, 491 (1991). In McCleskey, during a discussion of the
doctrines of procedural default and abuse of the writ, the Court illumi-
nated the potential risks of reexamining state convictions on federal
habeas review. Though we recognize the ramifications of, inter alia,
granting a habeas petitioner a new trial, we fail to comprehend how
McCleskey supports the Warden’s challenge to an interlocutory order
that has only the potential to someday upset the finality of Virginia’s
conviction of Cherrix. Moreover, as the district court acknowledged,
"[T]his Court, by statute [28 U.S.C. § 2254], has the duty to examine
actions taken by the Commonwealth to make sure that the final result
obtained is one in keeping with Cherrix’s constitutional rights." Cher-
rix, 131 F. Supp. 2d at 784; see also id. (citing Jackson v. Virginia,
443 U.S. 307, 323 (1979) for the proposition that "[a]lthough the
notion of ‘finality’ is important, such finality is not desirable when the
result is the ‘finality’ of the deprivation of liberty at the expense of
a constitutional right").
Finally, though the Warden asserts that the district court’s January
9, 2001 Order will "open the floodgates" to similar requests, he offers
no support for this stark assertion. Moreover, he fails to explain how,
if there were an influx of motions for DNA testing and preservation
of evidence in the district courts, this would result in "serious, perhaps
irreparable consequences," where the courts presumably would dis-
pose of the motions on their merits in the regular course of business.
2.
In next addressing why the January 9, 2001 Order can be "effectu-
ally challenged" only by immediate appeal, the Warden asserts that
"[a]bsent an immediate appeal, the Commonwealth will have to turn
14 IN RE BRAXTON
over its evidence [ ] with all the dangers attendant to that action[.]"
Appellant’s Br., at 14. We are not at all persuaded by this contention,
which merely revisits the purported "serious, perhaps irreparable"
consequences of tendering the evidence. If a discovery order could be
challenged under § 1292(a)(1) any time there was the remotest possi-
bility, despite the best efforts of the issuing court, that evidence could
be destroyed or the chain of custody broken, we would be inundated
with the very piecemeal appeals that our system so disfavors. In
essence, the Warden asks us to rewrite the rules for appellate review
of interlocutory orders so that "almost every pretrial . . . order might
be called ‘effectually unreviewable’ [on appeal from final judgment]
in the sense that relief from error can never extend to rewriting his-
tory." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 872
(1994).7 This we are unwilling and unable to do.
Rather, we are constrained to agree with Cherrix that the propriety
of the district court’s January 9, 2001 Order can be adequately
reviewed on appeal from final judgment. If, for example, the district
court awards habeas relief to Cherrix based on the findings of the
7
The Warden also objects to providing evidence "in furtherance of
Cherrix’s frivolous and legally impossible free-standing claim of actual
innocence." Appellant’s Br., at 14. The Warden relies on our unpub-
lished order in Poyner v. Murray, No. 93-6052 (4th Cir. Jan. 19, 1993),
reversing the district court’s eleventh-hour decree permitting Poyner’s
expert to observe the autopsy of and collect brain tissue samples from an
executed inmate in support of Poyner’s habeas claim that execution by
electrocution was cruel and unusual punishment. In Poyner, because it
was already well-settled that electrocution was not an unconstitutional
means of execution, we reversed the discovery order on the ground that
"the basic premise in the underlying case in the district court is entirely
without merit." Poyner, No. 93-6052, at 5. This decision is not helpful
to the Warden, however, for several reasons. First, it is an unpublished
order of no precedential value. See Local Rule 36(c). Second, and more
importantly, even assuming that the appealability of a discovery order
under § 1292(a)(1) can depend on whether the underlying claim is cogni-
zable, the Warden attacks only one of Cherrix’s grounds for habeas
relief. That is, though the Warden is correct insofar as he asserts that
actual innocence alone is not a colorable ground for such relief in our
Circuit, he fails to acknowledge that Cherrix also asserts other, cogniza-
ble bases for relief. See infra, Part II.B.
IN RE BRAXTON 15
DNA analysis, the Warden may appeal that decision on the ground
that, inter alia, the retesting was unlawfully authorized by the court.
This same contention may also be proffered by the Warden if Cherrix
appeals the denial of habeas relief.
In summary, because the Warden has failed to establish that the
district court’s January 9, 2001 Order might have "serious, perhaps
irreparable, consequences," and because this order cannot be "effectu-
ally challenged" only by immediate appeal, we must dismiss the War-
den’s appeal for lack of § 1292(a)(1) jurisdiction.8
B.
We now consider whether the Commonwealth is entitled to a writ
of mandamus, pursuant to the All Writs Act, 28 U.S.C. § 1651, direct-
ing the district court to vacate its January 9, 2001 Order. The Com-
monwealth maintains that the district court lacked authority to: (1)
direct the Commonwealth, pursuant to 21 U.S.C. § 848(q), to make
its evidence available for DNA retesting;9 (2) authorize funding under
§ 848(q) for investigation of Cherrix’s Herrera claim, see supra Part
I.B.2, because we do not recognize free-standing habeas claims of
actual innocence where, as in Virginia, state clemency proceedings
are available, see Royal v. Taylor, 188 F.3d 239, 243 (4th Cir. 1999);
(3) order DNA retesting in support of any Schlup claims, see supra
8
Because we dismiss this appeal for lack of jurisdiction, we decline to
address Cherrix’s assertion that the Warden lacked standing to bring the
appeal.
9
The basic premise of this contention — that the district court actually
relied on § 848(q) for authority to direct the Commonwealth to proffer
the evidence for analysis — is belied by the court’s January 9, 2001
Order and its Supplemental Opinion. The order plainly cites the Federal
Rules of Civil Procedure, as applicable through the Rules Governing
§ 2254 Cases, and constitutional principles as authority for ordering the
retention and preservation of evidence. Moreover, the court referenced
§ 848(q) for only the specific conclusion that Cherrix was entitled to
funding for DNA testing. In its Supplemental Opinion, the court reiter-
ates that it relied on § 848(q) solely to authorize funding for this analysis.
In the alternative, the Commonwealth insists that no authority supports
the court’s discovery order.
16 IN RE BRAXTON
Part I.B.2, before the Warden had an opportunity to respond to Cher-
rix’s habeas petition and assert the defense of procedural default; and
(4) grant Cherrix’s request for DNA analysis in spite of his failure to
request such testing in state court.
The party seeking a writ of mandamus must satisfy the conditions
of a rigorous test, demonstrating each and every one of the following
requirements:
(1) he has a clear and indisputable right to the relief sought;
(2) the responding party has a clear duty to do the specific
act requested; (3) the act requested is an official act or duty;
(4) there are no other adequate means to attain the relief he
desires; and (5) the issuance of the writ will effect right and
justice in the circumstances.
Oncology Assocs., 198 F.3d at 511 (citing, inter alia, Kerr v. United
States Dist. Court, 426 U.S. 394, 403 (1976) (recognizing that, in
order to ensure "the writ will issue only in extraordinary circum-
stances, . . . the party seeking issuance of the writ [must] have no
other adequate means to attain the relief" sought)).
The Commonwealth faces the same problem in seeking a writ of
mandamus that the Warden faced in bringing an interlocutory appeal
— other adequate means exist to attain the relief it desires. That is,
the district court’s January 9, 2001 Order may be reviewed on appeal
from final judgment, with no conceivable risk of harm to the Com-
monwealth. We have consistently held, as we are constrained to do
today, that we will not issue a writ of mandamus under such circum-
stances. See, e.g., In re Catawba Indian Tribe of South Carolina, 973
F.2d 1133, 1137 (4th Cir. 1992) (denying a writ of mandamus to com-
pel the district court to grant a class certification where the issue was
reviewable on appeal from final judgment); In re Int’l Precious Met-
als Corp., 917 F.2d 792, 792, 794 (4th Cir. 1990) (declining to issue
a writ requiring the district court to transfer the case in order to
enforce a forum selection clause, because the petitioner could "appeal
the . . . court’s denial of transfer after final judgment"). Moreover, we
are cognizant of the potential danger in permitting a party to use a
petition for a writ of mandamus as an end-run around our appellate
rules. See Catawba Indian Tribe, 973 F.2d at 1135 ("The very power
IN RE BRAXTON 17
of the writ of mandamus demands that its availability be limited to
narrow circumstances lest it quickly become a shortcut by which dis-
appointed litigants might circumvent the requirements of appellate
procedure mandated by Congress."); see also id. at 1137 (acknowl-
edging that "[w]e must be reluctant indeed" to permit the petitioner
from accomplishing by mandamus that which is prohibited by inter-
locutory appeal). Therefore, we deny the Commonwealth’s manda-
mus petition.10
III.
For all of the foregoing reasons, we dismiss the Warden’s interloc-
utory appeal for lack of jurisdiction, and we deny the Common-
wealth’s petition for a writ of mandamus.11
APPEAL DISMISSED
AND PETITION FOR MANDAMUS DENIED
TRAXLER, Circuit Judge, concurring:
I concur in the results reached in the opinion of my friend Judge
King. I write separately because my reasoning is somewhat different.
I.
This appeal began with Cherrix’s motion for an order, solely under
the authority of 21 U.S.C. § 848(q), directing the Commonwealth to
10
Because the Commonwealth has other adequate means to challenge
the January 9, 2001 Order, i.e., appeal from final judgment on Cherrix’s
habeas petition, we need not address the other prongs of the test for issu-
ing a writ of mandamus. Likewise, we do not consider Cherrix’s conten-
tion that the Commonwealth lacked standing to seek the writ.
11
Accordingly, we lift our stay of the January 9, 2001 Order. We also
dispose of the following pending motions in this case: (1) we deny the
Warden’s motion for expedition of the adjudication of this case, as it had
already been placed on an expedited briefing and argument schedule; (2)
we deny his motion for reconsideration of the Clerk’s Order of June 11,
2001, filing under seal certain supplemental authority submitted by Cher-
rix; and (3) we grant Cherrix’s unopposed motion to amend his brief.
18 IN RE BRAXTON
make the seminal fluid available for DNA retesting. At the time of the
motion, Cherrix had yet to file a petition for relief under § 2254. After
a hearing on the merits of the motion filed by Cherrix, and after Cher-
rix filed his petition for relief under § 2254, the district court issued
its January 9, 2001 Order which granted the motion. In my estimation,
the legal basis for this order directing retesting of the evidence was
not particularly clear; by contrast, it was clear that the court was
granting funding pursuant to § 848(q). Indeed, although the January
9, 2001 Order contained a general citation to Rule 11 of the Rules
Governing Section 2254 Cases, the district court appeared to draw its
authority to direct the Commonwealth in this regard primarily from
§ 848(q), a statute aimed at providing adequate legal services for indi-
gent capital defendants. Given the language of the January 9, 2001
Order and the fact that § 848(q) was the sole basis for Cherrix’s
motion, the Commonwealth’s belief that the district court acted
beyond its power is understandable. And, apart from the substantial
legal questions regarding the propriety of retesting in the first place,
the order was of substantial concern to the Commonwealth because
in very general terms it ordered the assistant attorney general and the
state clerk of court to "make available to Petitioner any bodily fluids
or swabs seized from Tessa Van Hart, or the Petitioner for testing to
the laboratory as directed by the Court." The Commonwealth feared
a loss of the chain of custody and contamination or destruction of this
evidence. The January 9, 2001 Order did not incorporate any safe-
guards that would diminish these risks.
In light of these concerns, the Commonwealth immediately
appealed the district court’s order under 28 U.S.C.A. § 1292(a)(1),
while at the same time petitioning this court for a writ of mandamus
to "vacate the district court’s January 9th order entered pursuant to 21
U.S.C. § 848(q) directing state officials to locate, preserve and turn
over for DNA testing bodily fluids taken from the victim and Cher-
rix."
Under Rule 21(b)(4) of the Federal Rules of Appellate Procedure,
we invited the district court to submit a response to the Common-
wealth’s petition for a writ of mandamus. This rule provides as fol-
lows:
The court of appeals may invite or order the trial-court judge
to address the petition or may invite an amicus curiae to do
IN RE BRAXTON 19
so. The trial-court judge may request permission to address
the petition but may not do so unless invited or ordered to
do so by the court of appeals.
We thereafter received from the district court a very detailed state-
ment expanding upon the factual bases and the legal reasoning for its
decision ("the Supplemental Opinion"). In the Supplemental Opinion,
the district court explained that it was not issuing its order solely
under the authority of 21 U.S.C. § 848(q), stating that its order direct-
ing DNA re-testing was issued pursuant to the "good cause" standard
contained in Habeas Rule 6(a). Unlike the January 9, 2001 Order, the
Supplemental Opinion identified various protective measures the dis-
trict court intended to employ to maintain the physical integrity of the
evidence and safeguard the chain of custody.
Were it not for the information in the Supplemental Order, how-
ever, I would hold that the January 9, 2001 Order, standing alone, was
immediately appealable. Without clarification from the Supplemental
Opinion, the January 9, 2001 Order, literally interpreted, required the
Commonwealth to turn over the samples directly to the defendant for
testing. This would have broken the chain of custody and created a
situation, if only in testing, in which Cherrix could have contaminated
and even destroyed the evidence. In my judgment, the dangers atten-
dant to an apparently uncontrolled release of the evidence would have
fully warranted an interlocutory appeal and would have mandated our
intervention.
The Commonwealth urges us not to consider the Supplemental
Opinion on the grounds that the district court essentially amended its
opinion and substituted new legal grounds for its conclusions, even
after we had granted the Commonwealth a stay pending appeal. Con-
sidering the fact that this panel specifically invited the district court
to address the Commonwealth’s petition for a writ of mandamus, it
would be strange indeed if the district court overstepped its bounds
by doing just that. Furthermore, although Appellate Rule 21(b)(4)
pertains only to "Writs of Mandamus and Prohibition, and Other
Extraordinary Writs," I believe that it is appropriate for us to consider
the Supplemental Opinion with respect to the Commonwealth’s
appeal under 28 U.S.C. § 1292(a)(1) as well. As Judge King
explained, the district court retained jurisdiction to act on matters "in
20 IN RE BRAXTON
aid of the appeal." Fobian v. Storage Tech. Corp., 164 F.3d 887, 890
(4th Cir. 1999) (internal quotation marks omitted); In re Grand Jury
Proceedings Under Seal, 947 F.2d 1188, 1190 (4th Cir. 1991). This
principle is based on notions of judicial economy and efficiency. See
id. We considered the mandamus issue simultaneously with the
appeal question, and thereby had before us the Supplemental Opinion.
We now understand the district judge has considered a number of
safeguards that he intends to implement in order to protect the evi-
dence. It makes little sense to consider the Supplemental Order for
purposes of resolving the petition for a writ of mandamus but then
close our eyes to it concerning whether review is available under 28
U.S.C.A. § 1292(a)(1). I believe the information in the Supplemental
Order should be considered if for no other reason than because, as a
practical matter, it answers the questions of the Commonwealth and
assures that the handling of this evidence will be commensurate with
the needs of both parties.
In light of the Supplemental Opinion, I am satisfied the order of the
district court will not result in "serious, perhaps irreparable, conse-
quence" and I do not believe that the order can be "effectually chal-
lenged" only by an immediate appeal. Carson v. American Brands,
Inc., 450 U.S. 79, 84 (1981) (internal quotation marks omitted). Thus,
the Commonwealth is not entitled to immediate review.
II.
Likewise, I concur that the Commonwealth is not entitled to a writ
of mandamus. In addition to the reasons stated by Judge King, man-
damus relief is not appropriate because the district court was acting
on a matter entrusted to its discretion. As the majority opinion rightly
points outs, the relief provided by the issuance of a writ of mandamus
is extraordinary in nature, and I agree the Commonwealth is not enti-
tled to it. The traditional use of the writ of mandamus has been "to
confine an inferior court to a lawful exercise of its prescribed jurisdic-
tion." Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 426 U.S.
394, 402 (1976) (internal quotation marks omitted). Although writs of
mandamus or prohibition may of course be employed to compel or
prohibit action by those outside of the judiciary, such as executive
agencies or officials, see United States ex rel. Rahman v. Oncology
Assocs., 198 F.3d 502, 515 (4th Cir. 1999) (affirming in part the issu-
IN RE BRAXTON 21
ance of a writ of mandamus to the Health Care Financing Administra-
tion), additional concerns arise when mandamus relief is sought
against a lower court, particularly when it is sought in conjunction
with an ongoing case.
Perhaps the most obvious concern in this context is that parties will
use a writ of mandamus as a surrogate for the appellate process. See
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382-83 (1953).
Even if the district court issues an interlocutory order that is wrong
on the merits and that results in substantial inconvenience, something
more is required to justify mandamus relief. If not, "then every inter-
locutory order which is wrong might be reviewed under the All Writs
Act" and the function of the writ of mandamus "would be enlarged
to actually control the decision of the trial court rather than used in
its traditional function of confining a court to its prescribed jurisdic-
tion." Id. at 383. The other major reason that mandamus relief is dis-
couraged in the context of ongoing litigation is that such petitions
tend to pit the petitioner and the district court against each other. In
essence, the district court becomes a litigant, cast in an adversarial
role against the mandamus petitioner, who remains a litigant in the
pending lawsuit. See Kerr, 426 U.S. at 402.
Accordingly, a mandamus petitioner can show he is entitled to the
writ only by demonstrating the lower court committed a "clear abuse
of discretion or conduct amounting to usurpation of the judicial
power." Mallard v. United States Dist. Ct. for the S. Dist. of Iowa,
490 U.S. 296, 309 (1989) (internal citations, alterations and quotation
marks omitted). And, as Judge King makes clear, even if the peti-
tioner can demonstrate an abuse or usurpation of judicial power, there
are additional hurdles to make certain that mandamus relief is avail-
able only in extraordinary circumstances: there must be no "adequate
alternative means to obtain the relief" sought in the mandamus peti-
tion and the "right to issuance of the writ [must be] clear and indispu-
table." Id. (internal quotation marks omitted).
It is substantially more difficult to demonstrate the court usurped
power beyond its authority when the mandamus petition is directed
at a matter committed to the discretion of the district court. See In re
Catawba Indian Tribe of South Carolina, 973 F.2d 1133, 1136 (4th
Cir. 1992) (en banc). Almost by definition, a court that is deciding a
22 IN RE BRAXTON
matter within its discretion is acting within its prescribed authority,
even if the court technically makes the wrong decision. Thus, "[t]he
writ of mandamus is not to be used when the most that could be
claimed is that the district courts have erred in ruling on matters
within their jurisdiction." Schlagenhauf v. Holder, 379 U.S. 104, 112
(1964) (internal quotation marks omitted).
The Supplemental Opinion indicates that the court granted only
Cherrix’s request for funding pursuant to 21 U.S.C. § 848(q), but that
it ordered the Commonwealth to make the forensic evidence available
for testing for "good cause" under Habeas Rule 6(a). Rule 6(a) per-
mits a party "to invoke the processes of discovery available under the
Federal Rules of Civil Procedure if, and to the extent that, the judge
in the exercise of his discretion and for good cause shown grants
leave to do so." The district court’s decision to permit or deny the dis-
covery of evidence under Rule 6(a) is clearly an exercise of the
court’s discretion. Even if the court erroneously determined that
"good cause" exists, the court has merely "erred in ruling on [a] mat-
ter[ ] within [its] jurisdiction," Schlagenhauf, 379 U.S. at 112 (inter-
nal quotation marks omitted), and mandamus relief is not available.
Again, it bears noting that, in my view, the Commonwealth’s belief
that the district court acted beyond its power was not entirely mis-
placed, especially before the district court issued its Supplemental
Opinion. Indeed, the January 9, 2001 Order does not specifically cite
Rule 6(a) and it does not use the phrase "good cause," although it
does contain a general reference to the applicability of the Federal
Rules of Civil Procedure through Habeas Rule 11. And, Cherrix’s
motion for DNA retesting and for funding to accomplish the retesting
was made entirely under the auspices of § 848(q), not Habeas Rule
6(a). Indeed, at the time that Cherrix filed his motion, the district
court would have had no authority to grant it under Rule 6 because
Cherrix had not yet filed his § 2254 petition. Thus, prior to the issu-
ance of the district court’s Supplemental Opinion, the Common-
wealth’s belief that § 848(q) was the basis for the entire January 9,
2001 Order — not just the portions related to funding — was not
unreasonable. Of course, § 848(q) may provide authority for the court
to authorize the release of federal funds for services in conjunction
with Cherrix’s § 2254 petition, but it grants no authority whatsoever
for a district court to issue a discovery-type order.
IN RE BRAXTON 23
In the final analysis, however, if "good cause" does not support
DNA retesting, the Commonwealth can have its concerns effectively
addressed on appeal after the district court’s decision on the merits
has become final. I therefore concur that we cannot issue a writ of
mandamus under the circumstances.