David Meadows v. Carl Legursky, Sam Blackburn Acord v. Jerry Hedrick

904 F.2d 903

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 27, 1990
• Docket: 86-6748, 87-7628
• Status: Published

Opinions

K.K. HALL, Circuit Judge:

These consolidated cases raise questions about the role of the federal courts in deciding issues of constitutional law on collateral review of state court convictions. Sam Blackburn Acord appeals from the district court order dismissing with prejudice his petition brought pursuant to 28 U.S.C. § 2254. David Meadows’ § 2254 petition was granted by the district court, but this Court, sitting en banc, reversed and remanded with instructions to dismiss the petition. The United States Supreme Court vacated this Court’s judgment and remanded for reconsideration. We affirm the district court’s judgment in Acord’s appeal, but on different reasoning. After reconsideration of our previous judgment in Meadows’ case, we now vacate the judgment of the district court and remand with instructions to dismiss the petition without prejudice for failure to exhaust.

I — ACORD

In June 1983, Acord was tried in West Virginia for first degree sexual assault and related firearms charges. During his trial, he was cross-examined as follows:

Q. Okay, now, Trooper Hylton, who’s seated over here, is the man who came down to Florida to get you in May with the warrant, wasn’t he?

A. Yes, sir.

Q. All right, and you learned, when he got there he told you what you were charged with, didn’t he?

A. Yes, sir.

Q. And then he went through the procedure of reading you your rights, didn’t he?

A. Yes, sir.

Q. And you told him you weren’t interested in talking with him about this, didn’t you?

A. I told him I didn’t know anything about it, which is the truth.

Q. Oh, you didn’t tell him you didn’t want to talk about it?

A. No, I just told him that I didn’t know nothing about it, and he kept asking me, and I just kept telling him I didn’t know nothing about it.

Q. All right, so you not only didn’t tell him that you didn’t want to talk about it, but when you got up to Atlanta and you all met your brother, you didn’t have a further conversation in which you all said you, jointly to him, that you didn’t want to talk to him about it, that’s your evidence?

A. I don’t recall.

Mr. File (defense counsel): Objection, your honor, I don’t believe there has been any mention of Atlanta from anyone.

A. We never was in Atlanta, by the way.

The Court: I think this is proper cross-examination. Proceed.

Trooper Hylton was presented as a rebuttal witness by the State and testified that Acord, after his rights were read to him, said he would not talk to Hylton about the charges. During the prosecutor’s closing argument, he characterized Acord’s post-Miranda reaction as “I don’t want to talk about it.” Acord was convicted of sexual assault and sentenced to a 10-20 year term of imprisonment.

On direct appeal to the West Virginia Supreme Court of Appeals, Acord argued that the prosecutor’s questions and argument violated his Fifth Amendment right to remain silent. The state appeals court, however, disposed of this issue on the following reasoning:

When the appellant was arrested, he told the arresting officer that he did not want to talk about the case. He was cross-examined about this statement at trial. While this line of cross-examination may well have been error under syllabus point 1 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), the defendant failed to object to this point at trial. Generally, this Court will not consider an error for the first time on appeal. See, e.g. State v. Parks, 161 W.Va. 511, 515, 243 S.E.2d 848, 851 (1978). We see no reason to deviate from this rule in this case.

State v. Acord, 336 S.Ed.2d 741, 745 (W.Va.1985).

After the West Virginia court’s denial of his petition for rehearing, Acord filed a § 2254 petition in the federal district court alleging, inter alia, a violation of his constitutional right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The case was referred to a magistrate who recommended that the Doyle claim be rejected on the merits because the questions on cross-examination “ ‘were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement’ ” (quoting Anderson v. Charles, 447 U.S. 404, 409, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980)). The district court adopted the report in full and denied relief on all claims. The district court granted a certificate of probable cause and Acord appeals.

II

Acord contends that federal review of his Doyle claim is not foreclosed by the state court’s reliance on a procedural bar for two distinct reasons. First, he argues that the West Virginia courts’ inconsistent application of the procedural bar precludes a finding that it is an “adequate state ground” upon which federal review may be foreclosed. Second, Acord claims that the State waived its right to raise the procedural default issue by failing to properly raise it before the district court.¹ We address these issues in turn.

A defendant’s failure to observe a state’s contemporaneous objection rule may be an “adequate and independent state ground” that bars federal habeas relief. Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977). This doctrine is a “well-established principle of federalism” which recognizes that a state’s conduct of its criminal proceedings should be accorded respect by the federal courts. Id. However, the “adequacy” component of the Wainwright v. Sykes doctrine is only satisfied if the procedural bar is “regularly or consistently applied” by the state court. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988). Our review of the decisions involving West Virginia’s contemporaneous objection rule convinces us that this procedural bar satisfies this requirement of consistent application and, consequently, constitutes an “adequate and independent state ground” upon which federal review may be precluded.

In State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445, 457 (1974), the West Virginia court stated that it was “firmly committed” to the general rule that unobjected-to error will not be reviewed on appeal. It further noted that the court had “only deviated from [the general rule] on few occasions, and then only in extraordinary situations.” Id. The extent of such deviation from the general rule is the basis of Acord’s contention that West Virginia applies its contemporaneous objection rule in an inconsistent manner.

Acord cites State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975), as the origin of the plain error rule by which the West Virginia courts will recognize errors of constitutional magnitude despite the lack of a contemporaneous objection at trial. This overstates the breadth of Starr. The court in Starr invoked a procedural rule of court² in order to reach an error which Starr had failed to assign in his opening brief. His counsel had in fact objected at trial. Id. 216 S.E.2d at 244. The plain error rule of Starr is nothing more than a vehicle by which the state appeals court may reach issues not properly raised in an appellant’s brief.

Acord also cites State v. Mullins, 301 S.E.2d 173 (W.Va.1982), as an example of the state court’s discussion of the merits of a possible Doyle violation despite the lack of an objection by defense counsel to the closing remarks of the prosecutor. The appeals court, however, found no Doyle violation, and it is not evident from the opinion whether the State even advanced the issue of procedural default. Moreover, in that very opinion, the court disposed of two other issues on procedural default grounds. Id. at 176-77.

Acord cites no other cases decided prior to his trial which would indicate inconsistent application of the state contemporaneous objection policy, and it is to this pre-trial period that we must look in ruling on this issue. Johnson v. Muncy, 830 F.2d 508, 514 (4th Cir.1987). We also recognize that consistent or regular application of a state’s procedural default rules does not mean undeviating adherence to such rule admitting of no exception. See Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989) (despite possible exceptions, the procedural bar at issue was applied by Florida’s highest court “[i]n the vast majority of cases”). In the absence of a clearer showing by Acord, we believe the state court’s declaration of its “general rule” in Thomas should be afforded respect. Thomas, 203 S.E.2d at 457.³ We hold, therefore, that the procedural default posited by the state court is an “adequate and independent state ground” upon which federal habeas review may be precluded.

Wainwright v. Sykes announced a “cause and prejudice” doctrine which permitted habeas petitioners to escape the effect of a procedural default. 433 U.S. at 87-91, 97 S.Ct. at 2506-09. Acord concedes that the “cause” component of the test could not be satisfied by a contention that his trial lawyer was unaware of the Doyle doctrine. See Murray v. Carrier, 477 U.S. 478, 486-87, 106 S.Ct. 2639, 2644-45, 91 L.Ed.2d 397 (1986) (trial counsel’s failure to recognize a basis for a claim does not constitute cause for a procedural default). Thus, absent a showing of cause to excuse the default, we cannot reach the merits of Acord’s claim unless the alleged Doyle violation was so severe that it “has probably resulted in the conviction of one who is actually innocent....” Id. at 496, 106 S.Ct. at 2649. Our review of the record shows that this is not such an “extraordinary case” which would mandate the granting of the writ despite the absence of cause for the procedural default. Id. Therefore, Acord is not entitled to habeas relief on this claim.

Ill

Acord also contends that the State is precluded from relying on the asserted bar before this Court because it chose not to raise the procedural bar rule in proceedings before the magistrate and district court, choosing instead to argue the Doyle claim on its merits. Acord further points to the State’s failure to object to the magistrate’s findings which were adopted in toto by the district court. We believe, however, that the procedural bar was satisfactorily raised below as to defeat Acord’s “waiver of waiver” argument.

Recently this Court held that the state’s failure to expressly assert procedural default during habeas proceedings at the district court level did not constitute a “waiver of waiver” when the procedural default was before the district court by virtue of the admission into the record of the state court’s decision which relied on such a default to bar consideration of the disputed constitutional claim. Titcomb v. Commonwealth of Va., 869 F.2d 780, 782-84 (4th Cir.1989). Here, the state court’s decision in Acord’s appeal was admitted into evidence before the federal magistrate, so the “waiver of waiver” argument is meritless. In sum, although on different reasoning, we affirm the judgment of the district court.

IV — MEADOWS

David Meadows was convicted in West Virginia of first degree murder and the conviction was upheld on direct appeal. State v. Meadows, 304 S.E.2d 831 (W.Va.1983). His § 2254 petition was granted by the district court on the ground that the alibi instruction at trial unconstitutionally shifted the burden of proof on an essential element of the crime. Sitting en banc, this Court determined that Meadows' failure to observe West Virginia’s contemporaneous objection rule was sufficient to deny habe-as relief, and the district court’s judgment was reversed. Meadows v. Holland, 831 F.2d 493 (4th Cir.1987) (Meadows I). The U.S. Supreme Court vacated the judgment and remanded the case for reconsideration in light of its decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).⁴ Meadows v. Holland, — U.S. —, 109 S.Ct. 1306, 103 L.Ed.2d 575 (1989). The facts preceding our prior consideration of the Meadows case are extensively recited in Meadows I and will not be repeated here. However, we must amplify certain matters pertaining to Meadows’ presentation of his alibi instruction issue to the state courts because the focus of our analyses has necessarily shifted after remand from the Supreme Court.

On direct appeal of his conviction to the West Virginia Supreme Court of Appeals, Meadows failed to raise the claim that the alibi instruction unconstitutionally shifted the burden of persuasion. This omission occurred after this Court’s decision in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), in which we held that a similar instruction unconstitutionally relieved the state of its burden of having to prove every element of a charge beyond a reasonable doubt. Id. at 282. Although the state supreme court majority did not discuss the issue, the lone dissenter noted that our decision in Adkins meant that the burden-shifting instruction “could not be harmless error.” 304 S.E.2d at 842 (Harshbarger, J. dissenting).

Meadows filed his pro se habeas petition in the state circuit court pursuant to W.Va. Code § 53-4A-1 (1981) and, for the first time, raised the Adkins issue. The circuit court construed the majority’s opinion in the direct appeal as having reached the merits of the Adkins issue and thus it denied relief on this and all other claims raised by Meadows. Still proceeding pro se, Meadows filed the identical habeas petition with the West Virginia Supreme Court of Appeals instead of appealing the circuit court’s dismissal. The appeals court interpreted the filing as an attempt to invoke the court’s original jurisdiction in habeas corpus matters and, as is its practice, denied the petition without prejudice. See McDaniel v. Holland, 631 F.Supp. 1544 (S.D.W.Va.1986). Meadows then abandoned all further attempts at recourse in the state courts and initiated his habeas petition with the federal district court. He again raised the Adkins issue and the district court agreed with the magistrate’s recommendation that habeas relief should be granted on the basis of the constitutionally infirm alibi instruction. The district court also adopted the magistrate’s finding that the alibi instruction was clearly submitted to both the state circuit and appeals courts “in a meaningful manner alleging the appropriate constitutional infirmities.” Meadows v. Holland, C/A 1:85-0798 (S.D.W.Va., Aug. 7, 1986). In Meadows I, we declined to reach the exhaustion issue. 831 F.2d at 496 n. 4.

V

On remand from the Supreme Court, there is no question that the state court did not rely on a procedural default with respect to Meadows’ Adkins claim. Renewing an argument raised during the initial federal habeas proceeding, the State contends that Meadows did not fully exhaust his state remedies because he failed to appeal the state circuit court’s denial of a writ. Meadows counters that his failure to appeal the circuit court’s order should be excused because he was proceeding pro se and is untrained in the law. Alternatively, he argues that his petition to the state appeals court satisfied exhaustion principles because the lower court’s order was attached to his petition.⁵ We are persuaded by the State’s argument.

Exhaustion of state remedies prior to the pursuit of federal habeas relief is mandated by 28 U.S.C. § 2254(b), (c).⁶ The statute requires a dismissal for failure to exhaust if an effective state remedy is available at the time of filing of the federal habeas petition. West Virginia’s adherence to equitable principles in its treatment of finality in habeas matters allows us to confidently predict that Meadows will be permitted to refile his habeas petition in the state circuit court. See Losh v. McKenzie, 166 W.Va. 762, 277 S.E.2d 606 (1981). Given that Meadows was proceeding pro se at the state habeas level, that the circuit court’s failure to decide the Adkins issue was apparently not due to any waiver by Meadows, and that his failure to appeal the circuit court’s order was apparently not an attempt to bypass state appellate review, we are convinced that it is likely that further state habeas review is still available to Meadows. See Harris v. Reed, 109 S.Ct. at 1046 (O’Connor, J., concurring) (“[I]n determining whether a remedy for a particular constitutional claim is ‘available,’ the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim”).

VI

Having decided that Meadows’ Adkins claim is unexhausted, we turn to the related question of whether exhaustion should be invoked in light of the State’s contention that it is clear that the West Virginia court would hold the Adkins claim procedurally barred. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989). The non-jurisdictional exhaustion doctrine is indeed flexible enough to allow exceptions in cases in which forcing a petitioner to go back to state court would be an obvious exercise in futility. See Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989). We do not find this to be the case here, however. If any reasonable possibility exists that the state court may apply an exception to its procedural default rule, the federal court should not apply a state procedural bar to find that exhaustion is futile. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir.1983).

In Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), we were presented with a habeas petitioner who, like Meadows, had failed to object to a similar burden-shifting alibi at trial and who had also failed to raise the burden-shifting issue before the West Virginia state courts. In response to the State’s argument that Adkins failed to exhaust his state remedies, this Court held that the exhaustion requirement of 28 (b) was satisfied because “to force Adkins now to pursue his claim before the West Virginia court would be but a futile directive.” Id. at 282. The futility of demanding exhaustion in Adkins, however, arose from this Court’s view that the state court had incorrectly denied a similar claim on the merits and, therefore, recourse to the state court would merely provide that court with an opportunity to reaffirm its previous error. In light of our holding in Adkins regarding the constitutional infirmity of the alibi instruction, we cannot say that it would now be an “empty formality” to demand exhaustion by Meadows. We believe a reasonable possibility exists that the state court may decide to reach the merits of Meadows’ Adkins claim despite the failure to object at trial. Therefore, we reverse the order of the district court and remand with instructions to dismiss Meadows’ petition, without prejudice, because of his failure to exhaust state remedies.

86-6748 — REVERSED AND REMANDED WITH INSTRUCTIONS.

87-7628 — AFFIRMED.

1 . Although not relied upon by the district court in dismissing Acord’s Doyle claim, Acord anticipated the State's position on appeal and extensively briefed the issue of procedural default.

2 . Rule IV, Section 2 of the Supreme Court Rules reads as follows:

... No alleged error or point, not set forth in the brief, shall be raised afterwards, either by reply brief, or in oral or printed argument, or on petition for rehearing, but the court, at its option may notice a plain error not assigned or specified.

3 . After the initial briefs were filed in this appeal, the parties were directed to supplementally brief the “inconsistent application” issue in light of decisions rendered by the West Virginia Supreme Court of Appeals subsequent to Acord’s trial in June 1983. We believe, however, that these decisions are irrelevant to the status of the state’s contemporaneous objection rule at the time of Acord’s trial, and the recognition of limited exceptions to the general rule does not convince us that the rule was not consistently applied at the time of Acord’s trial.

4 . In Harris, the Supreme Court held that a state "procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." 109 S.Ct. at 1043.

5 . Although Meadows argues that the state appeals court considered the claim when it quoted the objected-to instruction (304 S.E.2d at 839-40), it is clear that the instruction claim raised and disposed of dealt with the trial court's refusal to give another alibi instruction offered by Meadows on the grounds that it was repetitious. Nowhere is there any indication that the burden-shifting aspect of the instruction was considered by the majority.

6 . Title 28 U.S.C. § 2254(b) and (c) read as follows:

(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.