Clifford W. Carrier v. Terrell D. Hutto, Director of the Virginia Department of Corrections ( 1983 )

K.K. HALL, Circuit Judge,

dissenting:

Flim-flam is too harsh a term, so I will instead say that defense counsel has persuaded the majority to consider on appeal a case entirely different from the one below. What was once an issue under Jencks v. United States,¹ defense counsel has now turned into an issue under Brady v. Maryland.² In addition, I do not agree with the majority that this case may fall under the “cause and prejudice” exception to the rule promulgated in Sykes v. Wainwright³ nor do I agree that exhaustion of state remedies is inappropriate in this case. I therefore dissent.

I.

By indicating that petitioner may find protection under Wainwright, the majority refuses to take into consideration both the factual background to petitioner’s underlying claim and the issue of exhaustion of state remedies. Petitioner’s central claim is that the state trial judge improperly stifled discovery by applying the “exculpatory” test outlined in United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398-2399, 49 L.Ed.2d 342 (1976), instead of the appropriate “materiality” test promulgated in Brady v. Maryland, 373 U.S. at 83, 83 S.Ct. at 1194,⁴ when he denied petitioner’s request for the original statements of government witnesses describing the assailants. Petitioner claims that he objected to this error at the time it occurred. Even the most cursory glance at the record, however, reveals a different story.

Nowhere in the record is there any reference to Agurs or Brady discovery tests. Instead, the record reveals that petitioner sought statements under Jencks v. United States, 353 U.S. at 657, 77 S.Ct. at 1007, for the purpose of cross-examination,⁵ and that when his request was denied he objected solely on the basis of Jeneks.⁶ Petitioner did not object to the judge’s use of an exculpatory test. Not only is the trial record devoid of a single Brady argument or objection, but even after the trial petitioner never mentioned Brady in his state habeas corpus petitions or his habeas petition to the federal district court.

Thus, even if there is a Brady issue in this case, it was never raised at the trial court level or on direct appeal.⁷ Petitioner’s request that this Court now review the issue flies directly in the face of the Wainwright doctrine. In Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-513, 30 L.Ed.2d 438 (1971), the Supreme Court emphasized that a petitioner may bring a federal habeas proceeding only if state courts have first had the opportunity to hear that claim. This holding was reaffirmed recently in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See also Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980) (where this Court refused to hear petitioner’s due process claim because he had neither objected at trial nor appealed the issue, thereby denying the state an opportunity to rule on it). In my view, these cases are controlling and this Court must dismiss the instant case for failure to exhaust state remedies.

II.

The majority suggests that petitioner may ultimately prevail under the “cause and prejudice” exception to Wainwright and that this case must therefore be remanded to the district court for an eviden-tiary hearing. I disagree. Assuming ar-guendo that petitioner could show cause under Wainwright, such a showing would merely underscore his failure to pursue Virginia state court remedies.

Under Wainwright, federal courts may not, absent a showing of cause and prejudice, take cognizance of constitutional issues in habeas corpus petitions by state prisoners which could have been, but which were not, raised before the state trial court when state procedural law requires that such matters be raised at trial to be considered on direct' appeal. 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.1978).

Although the Supreme Court did not define cause and prejudice, it suggested that actual prejudice in this context is tantamount to constitutional error which is not harmless beyond a reasonable doubt. 433 U.S. at 97-98, 97 S.Ct. at 2511-2512 (White, J., concurring) and at 117, 97 S.Ct. at 2522 (Brennan, J., dissenting). More recently, the Supreme Court held that to fall within the Wainwright exception relating to prejudice there must be actual, not possible, prejudice resulting in “actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In the instant case, petitioner fails to make any showing of an actual, much less substantial, disadvantage from his appellate counsel’s failure to argue the alleged Brady issue on direct appeal. Instead, petitioner boldly asserts that he lost a “sure thing” reversal. This conclusory statement in no way fulfills the requirement of showing actual prejudice, and since petitioner does not present any evidence to substantiate his assertion, I can see no reason to remand this issue for an evidentiary hearing.

Similarly, petitioner claims that his appellate counsel’s failure to argue the Brady issue on appeal also satisfies the “cause” prong of the exception to Wainwright. Appellant offers no evidence, however, to dispute the great likelihood that this was a tactical decision. Petitioner’s appellate counsel originally included petitioner’s present complaint in his notice of appeal, then subsequently decided not to brief it. In my view, this decision was both tactical and wise, as counsel undoubtedly recognized it as a weak issue. As the Supreme Court recently observed in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982): “Every trial presents a myriad of possible claims. Counsel might have overlooked or chosen to omit [a certain] argument while pursuing other avenues of defense .... [The Constitution] does not insure that defense counsel will recognize and raise every conceivable constitutional claim.” Id. at 133-34, 102 S.Ct. at 1574.

I believe that the majority misreads Wainwright in concluding that such speculative attorney error — error which at worst falls far short of ineffective assistance of counsel — constitutes Wainwright cause. Such an extension of the cause standard emasculates the contemporaneous objection rule entirely. Under the majority holding, every time a defense attorney fails to object to an issue (thus, presumptively barring habeas corpus under Wainwright), the defendant can assert that his attorney’s igno-ranee of the need for an objection was sufficient cause to avoid the Wainwright bar. This interpretation of the cause standard will ultimately allow the exception to swallow the rule.

III.

At the time of petitioner’s trial, Virginia had in effect a contemporaneous objection rule applicable both to trials and to appeal petitions. Rule 5:21, Rules of the Supreme Court of Virginia (1983).⁸ The Virginia Supreme Court had also specifically held that state habeas corpus could not be used to raise issues, including federal constitutional issues', which could have been but were not raised at trial and on direct appeal. Slayton v. Parrigan, 215 Va. 27, 29-30, 205 S.E.2d 680, 682 (1974), cert. denied, sub nom. Parrigan v. Paderick, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). See Crowell v. Zahradnick, 571 F.2d 1257, 1258 n. 1, 1259 n. 2 (4th Cir.1977).

Virginia procedure, however, accommodates excuses for failure to comply with the requirement that allegations of trial court error be specifically noted on appeal when there is justifiable cause for the procedural default. Even if errors were not made the subject of a timely direct appeal, the Virginia Supreme Court will, in some circumstances, permit a delayed appeal. See Miller v. Commonwealth, 217 Va. 929, 930, 234 S.E.2d 269 (1977). Furthermore, and of critical importance to this case, if there was good cause for a criminal defendant’s failure to raise trial error on direct appeal, it can be addressed in a state habeas corpus proceeding notwithstanding the usual rule that state habeas is available only to attack detention on grounds which could not have been raised at trial or on direct appeal. Slayton v. Parrigan, 215 Va. at 27, 205 S.E.2d at 680.

Here, the alleged error was counsel’s failure to argue Brady on direct appeal. Because this error occurred during the appellate process, and the state courts had no opportunity to rule on it, petitioner should have subsequently brought a habeas corpus petition, alleging ineffective assistance of counsel, in the state trial court.

In Washington v. Downes, 475 F.Supp. 573, 577 (E.D.Va.1979), the Federal District Court for the Eastern District of Virginia specifically stipulated that a petitioner could not bypass Virginia state remedies by making a challenge under the cause exception to Wainwright. See also Richardson v. Turner, 716 F.2d 1059 (4th Cir.1983) (indicating state courts should be allowed to apply their own “good cause” rules before federal courts can rule on a petition); Crowell v. Zahradnick, 571 F.2d at 1258 n. 1, 1259 n. 2; 28 U.S.C. Sec. 2254(b) and (c).⁹ The Supreme Court provided strong support for Downes and Richardson in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), by holding that a petitioner may bring a federal habeas proceeding only after state courts have had an opportunity to hear that claim. Consequently, even if petitioner could prove cause and prejudice under the Wainwright exception, the case still must be dismissed for failure to exhaust state remedies.

Petitioner’s contention that exhaustion would only be an exercise in futility, is clearly meritless in light of the more important considerations of comity, federalism, and the orderly administration of criminal justice.¹⁰

1 . 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957).

2 . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

3 . 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

4 . The Brady and Agurs tests are used to control discovery procedures. In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment....” 373 U.S. 87, 83 S.Ct. 1197; see also Chavis v. State of North Carolina, 637 F.2d 213, 222 (4th Cir.1980). Pursuant to this standard, when a defendant makes a request to discover specific documents, he must be given these documents if they are “favorable” and “material to guilt.” The Brady rule was refined and expanded in Agurs, where the Court held that the less rigorous “exculpatory” test was appropriate when a defendant makes an open-ended non-specific request for material. 427 U.S. at 106, 96 S.Ct. at 2398-2399. See also Chavis, 637 F.2d at 223. Pursuant to Agurs, the conclusion that due process was denied follows only if petitioner can show that the undisclosed evidence “might have affected the outcome of the trial.” 427 U.S. at 104, 96 S.Ct. at 2398. In evaluating the trend among other circuits attempting to follow Agurs, this Court has concluded that “a new trial is required if there was a ‘reasonable possibility’ that the undisclosed evidence would have materially affected the verdict.” Chavis, 637 F.2d at 223.

5 . Trial tr. at 4.

6 . “MR. BURNSIDE: [Tjhen for the purposes of the record, the defendant would except to that ruling again on the basis of Jeneks v. United States, stating that the defendant should have the opportunity to actually reviewing [sic] those statements.” Trial tr. at 151-52.

7 . It is highly unlikely that a valid Brady claim can be drawn from this case. Even if the Court were to ignore the references to Jeneks and to read Brady into the trial transcript, petitioner has not prevailed upon the threshold issue of whether his request was specific enough to fall within the Brady rule. Even more importantly, he has made no showing that the suppressed material might have affected the outcome of the trial. See Agurs, 427 U.S. at 105, 96 S.Ct. at 2398-2399; Dozier v. Commonwealth, 221 Va. 1113, 253 S.E.2d 655 (1979); supra note 4. The record in this case indicates that the state trial judge reviewed the statements and found them not to be exculpatory. Thus petitioner’s argument — that he was subjected to an actual and substantial disadvantage infecting his entire trial because his appellate counsel failed to raise the Brady issue — is purely speculative. If an appellant could overturn any judicial denial of information with the unsupported assertion that the information might have changed the outcome of the trial, rules protecting nondisclosure would become farcical.

8 . Rule 5:21 of the Rules of the Supreme Court of Virginia provides in part:

Error will not be sustained to any ruling below unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice. Only errors assigned in the petition for appeal will be noticed by this Court and no error not so assigned will be admitted as a ground for reversal of a decision below.

9 . Title 28 U.S.C. Sec. 2254(b) and (c) provide:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise by any available procedure, the question presented, (emphasis added).

10 . In Huffman v. Persue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) the Supreme Court stated: “[T]he considerations of comity and federalism which underlie Younger permit no truncation of the exhaustion requirement merely because the losing party in the state court of general jurisdiction believes that his chances of success on appeal are not auspicious.” Id. at 610, 95 S.Ct. at 1211. See also Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).