Number of victims: 1
Date of murder:
Date of birth: 1951
Victim profile: Virginia Goebel
(convenience store clerk)
Method of murder:
Shooting (.45 caliber
Location: Virginia Beach, Virginia, USA
by lethal injection in Virginia on January 23,
Richard Townes shot
Virginia Goebel, a Virginia
Beach convenience store clerk, in the head during an April 14, 1985
robbery. He got $186.13 from the cash register. He shot her at point
blank range with a .45 caliber weapon to prevent her from possibly
identifying him later.
Townes had 29 prior felony
convictions including a 1976 incident where he held a taxi driver at
gunpoint for six hours in a hostage situation before shooting him
four times in the back.
68 F.3d 840
Richard TOWNES, Jr.,
Edward W. MURRAY, Director, Respondent-Appellee.
United States Court of
Argued March 9, 1994.
Decided Oct. 26, 1995.
Before NIEMEYER and LUTTIG,
Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Affirmed by published opinion.
Senior Judge PHILLIPS wrote the opinion, in which Judge NIEMEYER
joined. Judge LUTTIG wrote an opinion concurring in part and
concurring in the judgment.
PHILLIPS, Senior Circuit Judge:
In this habeas proceeding,
Richard Townes, Jr. makes several constitutional attacks on his
conviction and death sentence for the murder of Virginia Goebel
in 1985. His primary claims are that the trial court erred by
not conducting an inquiry, pursuant to Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to determine
his competence to represent himself during the sentencing phase
of his trial, and, that in light of the Supreme Court's recent
decision in Simmons v. South Carolina, 512 U.S. ----, 114 S.Ct.
2187, 129 L.Ed.2d 133 (1994), his sentencing was
constitutionally infirm. He also challenges several procedural
rulings of the district court leading to that court's dismissal
of his habeas petition. We find no error in that dismissal and
* The facts surrounding
Virginia Goebel's murder, and Richard Townes's arrest and
prosecution for it, are recounted in detail in the published
decision of the Supreme Court of Virginia, Townes v.
Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied,
Townes v. Virginia, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447
(1988). To put Townes's claims in context, a brief synopsis of
the facts and procedural history is needed.
Sometime during the early
morning hours of April 14, 1985, Virginia Goebel, a night shift
cashier at a Virginia Beach convenience store, was murdered. The
last person other than her murderer to see Goebel alive was
Dorothy Moore, a regular customer who on that morning entered
the store around 2:00 a.m.
As she walked to the rear of
the store Moore noticed a man standing "in the back corner ...
just watching." After Goebel reassured her that everything was
okay, Moore made her purchase and exited. As she drove away, she
noticed that the man watched her departure.
Just before 5:00 a.m. Goebel's
body, felled by a .45 caliber bullet, was discovered face down
behind the counter in a pool of blood. The exact time of death
could not be determined.
Evidence implicating Townes
came primarily from three sources. First, a state firearms
expert determined that an empty shell casing found next to the
victim's body matched empty casings from a gun traceable to
Townes. Second, customer Moore, although delaying a month before
contacting police, did positively identify Townes via photos and
a line-up as the man she had seen in the convenience store on
the night of Goebel's murder. Finally, inculpating evidence came
from Townes's cellmate at the Virginia Beach jail. According to
the fellow prisoner, Townes admitted murdering Goebel.
Townes was indicted and tried
by the Commonwealth of Virginia for capital murder, as well as
robbery and use of a firearm while committing robbery. He was
initially represented by the Office of the Public Defender. When
the public defender withdrew from the case, the trial court
appointed two other attorneys to represent Townes. Subsequently,
Townes moved to dismiss the court-appointed counsel, and invoked
his right to self-representation guaranteed by the Sixth and
Fourteenth Amendments as interpreted by the Supreme Court in
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
The state trial court
conducted an extensive and thorough Faretta inquiry to determine
if Townes was competent to represent himself. Ultimately, and
reluctantly, the court agreed to grant Townes's request and
allowed him to proceed pro se. From April 22, 1986, through May
5, 1986, Townes represented himself at his trial to a jury in
the Circuit Court, City of Virginia Beach. On May 5, the jury
returned a verdict of guilty on all counts.
Later the same day, a separate
sentencing hearing on the murder charge was conducted. The
sentencing jury returned a verdict imposing the death penalty
based on its finding beyond a reasonable doubt of "a probability
that Townes would commit criminal acts of violence which would
constitute a continuing serious threat to society"--a "future
dangerousness" finding under the Virginia Code. Secs. 19.2-264.2
and -264.4(C). On July 15, 1986, the trial judge confirmed the
jury verdict and sentenced Townes to death.
Townes appealed to the
Virginia Supreme Court, raising numerous claims. That court
upheld his conviction and sentence and the Supreme Court of the
United States denied certiorari. Townes v. Commonwealth, 234 Va.
307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971, 108 S.Ct.
1249, 99 L.Ed.2d 447 (1988). Townes then sought post-conviction
relief by a state habeas proceeding. His petition was dismissed
by the trial court, Townes v. Sielaff, Circuit Court No.
CL88-2669/F-50028; his petition for appeal was refused by the
Supreme Court of Virginia, Townes v. Sielaff, Record No. 901526
(March 20, 1991), and the Supreme Court of the United States
again denied certiorari. Townes v. Murray, 502 U.S. 912, 112
S.Ct. 311, 116 L.Ed.2d 253 (1991).
Townes then brought this
action for federal habeas corpus relief under 28 U.S.C. Sec.
2254, challenging on constitutional grounds both his conviction
and his death sentence. His principal challenges were to
imposition of the death sentence and involved two different
aspects of the sentencing phase of his state court trial.
The first consisted of a set
of separate but confusedly interrelated claims respecting his
alleged incapacity effectively to represent himself and/or his
competency to stand trial, in that phase. Specifically, he
claimed that the state trial court (1) failed adequately in
conducting its pre-trial Faretta inquiry to advise him of the
special perils of self-representation at the capital sentencing
phase of his trial, if that were reached; (2) failed to conduct
a separate Faretta inquiry incident to his self-representation
at the sentencing phase, which renewed inquiry was required
either as a matter of general Sixth Amendment right in all
capital cases or because, in this particular case, Townes
suffered an evident loss of capacity for self-representation
following return of the jury's guilty verdict; and (3) failed to
conduct a competency hearing prior to the sentencing phase of
his trial despite his evident loss of legal competency following
the jury's guilty verdict.
Townes's second challenge to
imposition of the death sentence was a claim that the state
trial court violated his right to due process by refusing to
instruct the jury of his ineligibility for parole if sentenced
to life imprisonment.
Townes's challenges to his
conviction included claims of unduly suggestive identification
procedures; denial of counsel at a critical stage of the
prosecution, specifically a post-arrest "lineup"; Brady
violations by the withholding of exculpatory evidence; and a
plethora of unsupported claims of trial court error.
A magistrate judge considered
all the claims asserted in Townes's habeas petition, conducted
an evidentiary hearing on the incompetency to stand trial at
sentencing claim, and allowed discovery in connection with
Townes's Brady claim. He then recommended that all the claims be
dismissed on alternative procedural default, Teague "new rule,"
and merits grounds.
The district court, reviewing
the magistrate judge's Report on objections filed by Townes,
made de novo findings respecting certain portions objected to,
adopted the findings and recommendations in the Report, and
dismissed the petition.
Preliminarily, the court
rejected objections that the magistrate judge erroneously denied
discovery of relevant material respecting his Brady claim, and
that the magistrate judge should have recused himself for
manifest bias, then rejected various objections to the
magistrate judge's recommendations for denial of Townes's
various constitutional claims respecting the conduct of his
constitutional claims concern his sentencing. He first makes a
cluster of related claims concerning the alleged inadequacy of
the trial court's Faretta inquiry, and of the trial court's
efforts to ascertain his competence both to represent himself,
and even to assist in his representation, at sentencing.
And, he makes a separate claim
that the trial court violated his right to due process by
refusing to inform the jury that he would be sentenced to life
imprisonment without parole if spared a death sentence. We
address the issues raised by these separate claims in turn.
* As we have noted, Townes's
related Faretta and "competence" claims assert two distinct
violations of his Sixth Amendment right to counsel and a third
related violation of his due process right to a fair trial.
First, Townes claims
constitutional error in the trial court's failure, during its
pre-trial Faretta inquiry, specifically to apprise Townes of the
special perils of self-representation he would face during the
capital-sentencing phase if convicted. Second, he claims that
his Sixth Amendment rights were again violated when the trial
court failed to conduct a separate Faretta inquiry after his
conviction but before his sentencing.
Townes premises this proposed
right to a second, renewed Faretta inquiry on two alternative
bases--that the Sixth Amendment either generally requires trial
courts to conduct a separate presentencing Faretta inquiry in
all capital cases involving pro se defendants, or that it
requires such a renewed inquiry where, allegedly as here, the
return of a guilty verdict causes the defendant a sudden loss of
capacity for self-representation that was, or should have been,
apparent to the trial court. See, e.g., United States v. Fazzini,
871 F.2d 635, 643 (7th Cir.), cert. denied, 493 U.S. 982, 110
S.Ct. 517, 107 L.Ed.2d 518 (1989) (noting that "a substantial
change in circumstances will require the district court to
inquire whether the defendant wishes to revoke his earlier
Third, Townes claims that his
due process right to a fair trial was violated by the trial
court's failure to conduct a pre-sentencing competency hearing
in light of the same manifest change of capacity that, he claims,
also should have necessitated a renewed Faretta inquiry. See,
e.g., Medina v. California, 505 U.S. 437, 448, 112 S.Ct. 2572,
2579, 120 L.Ed.2d 353 (1992) ("If a defendant is incompetent,
due process considerations require suspension of the criminal
trial until such time, if any, that the defendant regains the
capacity to participate in his defense and understand the
proceedings against him."); Drope v. Missouri, 420 U.S. 162,
171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975).
* Townes's challenge to the
adequacy of the pre-trial Faretta inquiry was properly raised
before, and rejected by, the Virginia Supreme Court on Townes's
direct appeal. That court found that the trial court conducted a
fully adequate Faretta inquiry, and that it specifically "impressed
upon Townes the necessity and desirability of representation by
trained counsel, especially where 'a person ... is charged with
an offense for which the penalty could be death.' " 362 S.E.2d
at 656 (quoting trial court).
We agree with the district
court that the state trial court conducted a full and fair
colloquy, sufficiently emphasizing the danger that Townes could
be sentenced to death if convicted. Therefore, the district
court properly denied relief on this claim.
Townes's second and third
claims respecting the state trial court's alleged failures to
renew its Faretta inquiry and to conduct sua sponte a competency
hearing before the sentencing phase of his trial, were, by
contrast, never raised in the state courts. Clearly, they are
distinct from and not properly treated as subsumed within his
claim respecting the pre-trial Faretta inquiry.
Unlike the latter claim, which
contends that the pre-trial inquiry was inadequate, the second
claim (in each of its alternative versions) and the third
challenge as unconstitutional the trial court's failure to
conduct at all the allegedly required proceedings--a renewed
Faretta inquiry and a competency hearing, respectively.
Although now conceding that he
"had not previously articulated th[ese] issue[s] with the
present degree of specificity," Townes maintains that he "ha[d]
challenged the adequacy of the trial court's Faretta inquiry
with specific reference to the sentencing phase as well as his
inability to proceed at that time." Townes's Opening Br., at 28.
But that is not enough to satisfy the exhaustion requirement. To
do so "the habeas petitioner must have 'fairly presented' to the
state courts the 'substance' of his federal habeas corpus claim."
Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d
3 (1982) (per curiam) (quoting Picard v. Connor, 404 U.S. 270,
275, 277-78, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971)). " 'The
ground relied upon must be presented face-up and squarely.
Oblique references which hint that a theory may be lurking in
the woodwork will not turn the trick.' " Mallory v. Smith, 27
F.3d 991, 995 (4th Cir.) (quoting Martens v. Shannon, 836 F.2d
715, 717 (1st Cir.1988)), cert. denied, --- U.S. ----, 115 S.Ct.
644, 130 L.Ed.2d 549 (1994).
Because the snippets from the
briefs that Townes filed in the Virginia Supreme Court on direct
appeal, and to which he now draws our attention,
are wholly inadequate to have "fairly presented" his present
claims that he was due a second Faretta hearing and/or a
competency hearing, these two claims have not been exhausted.
Ordinarily, a federal court
lacks power to entertain a mixed habeas petition containing
exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509,
510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982) (plurality
opinion). However, under Virginia's statutory bar to successive
petitions, see Va.Code Sec. 8.01-654(B)(2) ("No writ shall be
granted on the basis of any allegation the facts of which
petitioner had knowledge at the time of filing any previous
petition."), it is clear that the Virginia courts would not
entertain either of these unexhausted claims were Townes now to
In this situation, we treat
Townes's claims as subject to procedural default unless Townes
can satisfy one of the two exceptions to the procedural default
doctrine that would excuse his failure to present these claims
to the state. Teague v. Lane, 489 U.S. 288, 298-99, 109 S.Ct.
1060, 1069, 103 L.Ed.2d 334; Bassette v. Thompson, 915 F.2d 932,
936-37 (4th Cir.1990), cert. denied, 499 U.S. 982, 111 S.Ct.
1639, 113 L.Ed.2d 734 (1991).
Townes has made no attempt to
satisfy the "cause and prejudice" exception to the procedural
default bar. Indeed, it is difficult to imagine what cause there
might have been for his failure to raise these arguments in the
state courts. Townes argues instead only that a review of his
claims regarding post-conviction Faretta and competency hearings
"is necessary to correct a 'fundamental miscarriage of justice.'
" Coleman v. Thompson, 501 U.S. at 748, 111 S.Ct. at 2564 (quoting
Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1576, 71 L.Ed.2d
783 (1982)). In the capital sentencing context, a "fundamental
miscarriage of justice" occurs only when the defendant is "actual[ly]
innocen[t] of the death penalty." Sawyer v. Whitley, 505 U.S.
333, 339, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992).
To demonstrate such "actual
innocence," the petitioner "must show by clear and convincing
evidence that but for a constitutional error, no reasonable
juror would have found the petitioner eligible for the death
penalty under the applicable state law." Id. at 335, 112 S.Ct.
Beyond conclusorily asserting
that "[a] more fundamental miscarriage of justice [than the
trial court's failure to conduct the post-conviction inquiries
he now identifies as constitutionally required] can scarcely be
imagined," Townes's Opening Br., at 30-31, Townes has made no
effort to carry his demanding burden.
Even assuming arguendo that
the trial court's failure to conduct post-conviction Faretta and/or
competency hearings was constitutional error, we are aware of no
chain of reasoning--let alone clear and convincing evidence--that
leads from the counterfactual hypothetical mandated by Sawyer to
the conclusion that no reasonable juror could have found Townes
eligible for death.
See Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211,
1217 n. 6, 103 L.Ed.2d 435 (1989) ("Demonstrating that an error
is by its nature the kind of error that might have affected the
accuracy of a death sentence is far from demonstrating that an
individual defendant probably is 'actually innocent' of the
sentence he or she received.").
Therefore, the district court
properly dismissed as procedurally defaulted Townes's claims
that the trial court's failure to conduct post-conviction
Faretta and competency hearings violated his rights to counsel
and due process, respectively.
Townes's other unrelated claim
of constitutional error in his sentencing concerns the state
trial court's failure to inform the jury that the alternative to
a death sentence would be life imprisonment without possibility
At sentencing, the
Commonwealth predicated its request that the jury sentence
Townes to death on the sole grounds of his alleged future
dangerousness. After jury deliberations were underway, the jury
emerged from the jury room, and the forewoman and the trial
judge had the following colloquy:
Forewoman: There seems to be
some question as to parole eligibility requirements in a life
Court: The question relating
to parole eligibility is not a matter appropriate for
consideration by the jury. You must base your verdict on the
matters that are before you and the ranges of sentence that are
set forth in the Court's instruction.
I regret that I can't give you
any more answer than that.
After excusing the jury, the
court asked both parties whether either had "any objection to
the response given by the Court to the jury's question?" Townes
Townes now contends in
supplemental briefing which we requested following the Supreme
Court's decision in Simmons v. South Carolina, --- U.S. ----,
114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), which came down after we
heard oral argument, that under that decision the trial court's
refusal to inform the jury of his parole ineligibility violated
his rights of due process.
In response, the Commonwealth
argues that the rule laid down in Simmons does not apply where,
as here, the defendant did not himself attempt to bring the fact
of his parole ineligibility before the jury, and that adoption
of the broader rule upon which Townes must rely is precluded by
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989), and its progeny. It argues in the alternative that, even
if the rule from Simmons is itself broad enough to cover
Townes's situation, that rule cannot be applied in this habeas
proceeding because that decision created a "new rule" that does
not fall within a recognized exception.
Lastly, the Commonwealth
contends that regardless whether Townes's claim is covered by
Simmons and regardless whether retroactive application of the
rule Townes seeks is Teague-barred, Townes procedurally
defaulted his claim by failing to lodge a contemporaneous
objection to the trial court's decision not to inform the jury
that Townes would be ineligible for parole if sentenced to life
We agree with the
Commonwealth's first contention and therefore do not reach the
questions whether retroactive application of the rule announced
in Simmons would be barred by the new rule doctrine of Teague v.
Lane or whether, in any event, Townes's Simmons-type claim is
* Recall that, before the
sentencing jury was charged and sent out to deliberate, Townes
did not attempt to put the fact of his parole ineligibility
before it. That is, he neither adduced evidence that he would be
ineligible for parole if sentenced to life imprisonment, nor
asked the court so to instruct the jury, nor sought himself to
present the point to the jury in his closing argument.
The question whether Townes
would be eligible for parole if spared a death sentence arose
only when the jury returned from its deliberations to inquire of
the district court. Accordingly, the district court's
nonresponsive answer violated Townes's constitutional rights
only if a capital defendant enjoys a constitutional right (at
least in cases where the prosecution seeks the death penalty on
the grounds of future dangerousness) to have the jury informed
about his ineligibility for parole when the jury alone asks for
that information (after the defendant could have attempted to
divulge it, but did not). Such a right might be freestanding or
it might be subsumed within a broader right--for example, a
capital defendant's right to have the sentencing court instruct
the jury about the defendant's parole ineligibility on its own
initiative, i.e., even absent a request from either the
defendant or the jury that such information be imparted.
In specifically contending
that Simmons held that the Constitution imposes an affirmative
obligation upon a trial court to inform the jury of a
defendant's ineligibility for parole (if that is the case)
whenever a state seeks imposition of the death penalty on the
basis of the defendant's future dangerousness, Townes claims
that Simmons did establish the latter, broader right.
If that is a correct reading
of Simmons, or if Simmons at least imposed upon district courts
the narrower duty to inform the jury of a defendant's
ineligibility for parole when the jury asks for that information,
then Townes would come within the rule of that case. In that
event, we would be required to address either or both of the
Commonwealth's other two arguments in support of its contention
that Townes is not entitled to collateral relief--that Simmons
sets forth a "new rule" within the meaning of Teague v. Lane, or
that Townes cannot avail himself of the Simmons rule for reasons
of procedural default. However, for reasons that we will explain,
we conclude that the holding of Simmons is, in critical respects,
narrower than Townes claims. More importantly, it appears to us
that, on close analysis, the rule Simmons announces is narrower
than the rule that Townes needs.
The defendant in Simmons was
convicted of capital murder by a South Carolina jury and
sentenced to death. Prior to jury selection, the prosecution had
requested, and over defense counsel's objection had received, an
order prohibiting the defense from mentioning the issue of
parole eligibility throughout the trial. Defense counsel was
specifically forbidden to question prospective jurors on voir
dire about parole or the meaning of a "life sentence."
During the penalty phase,
after Simmons had been convicted, the prosecution argued to the
jury that the defendant's future dangerousness was a factor
justifying imposition of the death sentence.
Presenting public opinion data
which indicated that a large percentage of South Carolinians
were uncertain whether a defendant like Simmons sentenced to
life imprisonment would ever be paroled, the defense requested
the trial court to instruct the jury that, if sentenced to life
imprisonment, Simmons would be ineligible for parole. The court
refused to issue such an instruction.
After some deliberation, the
jury specifically asked the court whether "a life sentence
carr[ies] with it the possibility of parole." The trial judge
refused to answer, instructing the jury that "parole eligibility
... is not a proper issue for your consideration." Shortly
afterwards, the jury returned with a sentence of death. --- U.S.
at ---- - ----, 114 S.Ct. at 2190-92. On certiorari from the
South Carolina Supreme Court's affirmance of the conviction and
sentencing, the United States Supreme Court held, 7-2, that the
action of the trial court denied Simmons due process, and
remanded for resentencing.
Justice Blackmun's plurality
opinion, in which Justices Stevens, Souter, and Ginsburg joined,
did arguably at one point state its holding as broadly as Townes
claims. See --- U.S. at ----, 114 S.Ct. at 2190 ("We hold that
where the defendant's future dangerousness is at issue, and
state law prohibits the defendant's release on parole, due
process requires that the sentencing jury be informed that the
defendant is parole ineligible.").
One might reasonably question
whether the plurality's reasoning which then followed supports
such a broad statement of its holding.
But such an inquiry is not necessary in order to ascertain the
precise scope of Simmons, for it is clear that a majority of the
Simmons Court did not subscribe to that broad a view of the
right found violated. Justice O'Connor, writing for herself, the
Chief Justice, and Justice Kennedy, concurred only in the
judgment. Justice O'Connor's opinion--which rested squarely on a
defendant's due process right "to meet the State's case against
him," id. at ----, 114 S.Ct. at 2200 (O'Connor, J., concurring
in the judgment), and neither explicitly nor implicitly
recognized that the trial court has a sua sponte duty to inform
the jury of a defendant's parole ineligibility--is properly
understood to define the holding of the Court. See Marks v.
United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d
260 (1977) ("When a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five
Justices, 'the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments
on the narrowest grounds ....' ") (quoting Gregg v. Georgia, 428
U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859
(1976) (opinion of Stewart, Powell, and Stevens, JJ.)).
So understood, Simmons does
not hold, as the plurality opinion at one point put it, that "due
process requires that the sentencing jury be informed that the
defendant is parole ineligible," id. at ----, 114 S.Ct. at 2190
(plurality opinion). It only holds more narrowly that "[w]here
the State puts the defendant's future dangerousness in issue,
and the only available alternative sentence to death is life
imprisonment without possibility of parole, due process entitles
the defendant to inform the capital sentencing jury--by either
argument or instruction--that he is parole ineligible." id. at
----, 114 S.Ct. at 2201 (O'Connor, J.).
Accordingly, the fact that a
jury was not informed of the defendant's parole ineligibility
would not violate the defendant's due process rights, as
recognized by Simmons, if that lack of information was due to
the defendant's own inaction. Put in terms familiar from
philosophical and jurisprudential debates over the proper
meaning of "equality" and "equal protection," the defendant's
right, under Simmons, is one of opportunity, not of result.
The foregoing analysis
suggests, not only that the rule of Simmons is not as broad as
Townes says that it is, but, more importantly, that it is not as
broad as Townes needs it to be. Because a defendant's due
process right to meet the case against him does not logically
encompass a due process right to have a jury's question about
parole eligibility answered straightforwardly when the defendant
is in fact parole ineligible, the trial court's nonresponsive
answer to the jury's question in the present case did not
violate any due process right recognized by Simmons. Indeed,
that conclusion is reinforced when we come at the same question
from a different angle.
All of the Justices writing
opinions specially concurring either in the plurality opinion or
in the judgment wrote on the assumption that a defendant would
have responded to a state's "future dangerousness" argument by
requesting either that the trial court instruct the jury that he
would be ineligible for parole if sentenced to life imprisonment
or that he be allowed to so inform the jury by argument. Justice
O'Connor's opinion emphasizes that the right she recognizes is
respected so long as, once the defendant so attempts to meet the
case against him, the court grants either one or the other
request. See id. at ---- - ----, 114 S.Ct. at 2200-01 (O'Connor,
J., concurring in the judgment); see also id. at ----, 114 S.Ct.
at 2199 (Ginsburg, J., concurring) (agreeing with Justice
O'Connor that "due process does not dictate that the judge
herself, rather than defense counsel, provide the instruction").
In other words, a majority of
the Simmons Court specifically did not recognize a right under
any circumstances, including the defendant's specific request,
to have the sentencing judge instruct the jury on the fact of
parole ineligibility. A fortiori, Simmons does not establish a
due process right to have the jury instructed by the court that
the defendant is parole ineligible when the jury requests such
In short, the trial court's
nonresponsive answer to the jury here did not violate any right
recognized by Simmons.
Consequently, we have no occasion to determine whether Simmons
established a "new rule" for purposes of federal habeas review
and, if so, whether the rule there announced falls within the
second Teague exception. See Teague v. Lane, 489 U.S. 288,
311-13, 109 S.Ct. 1060, 1075-77, 103 L.Ed.2d 334 (1989) (plurality
In light of our reading that
Simmons holds only that, when the state puts a capital
defendant's future dangerousness in issue, the trial court may
not both refuse a defendant's request that it instruct the jury
on his parole ineligibility and prevent the defendant from
arguing that same point to the jury, Townes can make out a
constitutional violation only were we to announce a rule (broader
than that expressly laid down in Simmons ) that the Constitution
requires state courts to inform juries of a defendant's
ineligibility for parole whenever the jury requests
clarification on that question after the defendant has foregone
the opportunity to introduce evidence of his parole
ineligibility or to argue that fact in closing argument.
The final questions, then, are
whether the broader rule would have been "new" within the
meaning of Teague and its progeny when, on March 21, 1988,
Townes's conviction became final by virtue of the Supreme
Court's first denial of certiorari, and if so, whether it falls
within a recognized exception.
We answer the first question
in the affirmative, for we conclude that the rule Townes seeks "was
not dictated by precedent existing" in 1988. Teague, 489 U.S. at
301, 109 S.Ct. at 1070.
In support of his contrary
contention that the relief he seeks would not require
application of a new rule, Townes relies chiefly upon the
several cases which a majority of the Simmons Court invoked in
support of its holding that the conduct there at issue violated
Simmons's rights to due process. See, e.g., Skipper v. South
Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)
(holding sentencing court's exclusion of mitigating evidence
proffered by defendant violative of due process); Ake v.
Oklahoma, 470 U.S. 68, 83-87, 105 S.Ct. 1087, 1096-98, 84 L.Ed.2d
53 (1985) (due process requires that indigent defendant be
afforded assistance of psychiatrist when state presents
psychiatric evidence of defendant's future dangerousness at
capital sentencing proceeding); Gardner v. Florida, 430 U.S.
349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (sentencing court's
imposition of death sentence in partial reliance on aggravating
circumstances revealed in presentence report not disclosed to
defendant violated due process).
This body of precedent cannot
aid Townes, though, because the rule that he needs is not easily
found within the due process right to be heard. Furthermore,
because a majority of the Simmons Court specified that that
right does not require the trial court itself to instruct the
jury on the defendant's parole ineligibility even when the
defendant so requests, Simmons arguably forecloses a contention
that a trial court has a duty, born of the defendant's right to
due process, to respond to a jury's request for information
about a defendant's parole eligibility (when the defendant is
ineligible). Cf. Caspari v. Bohlen, --- U.S. ----, ----, 114
S.Ct. 948, 956, 127 L.Ed.2d 236 (1994) (noting possible
relevance to Teague analysis of Supreme Court decisions decided
after petitioner's conviction became final); Graham v. Collins,
506 U.S. 461, ----, 113 S.Ct. 892, 900, 122 L.Ed.2d 260 (same).
Townes also argues, however,
that such a duty is a correlative of a capital defendant's
rights under the Eighth Amendment. Indeed, the possibility that
the rule Townes seeks might emerge from the Court's Eighth
Amendment jurisprudence is strongly suggested by Justice
Souter's concurring opinion in Simmons.
Joined by Justice Stevens,
Justice Souter concluded that the Eighth Amendment permits a
defendant to require the court to instruct the jury on the
meaning of life imprisonment even if the prosecution does not
argue future dangerousness, on the grounds that that "Amendment
imposes a heightened standard 'for reliability in the
determination that death is the appropriate punishment in a
specific case.' " Simmons, --- U.S. at ----, 114 S.Ct. at 2198 (Souter,
J., concurring) (quoting Woodson v. North Carolina, 428 U.S.
280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of
Stewart, Powell, and Stevens, JJ.)).
That same reasoning would seem
to invite the rule Townes would have us adopt, for surely the
trial court's refusal to respond to the jury's own articulation
of their evident confusion, no less than the court's refusal to
permit the defendant to anticipate and seek to avert such
misunderstanding, would "diminish[ ] the reliability of the
jury's decision that death, rather than [the life-without-parole]
alternative was the appropriate penalty." Id. at ----, 114 S.Ct.
Significantly, the Court had
declared in other pre-1988 decisions that " 'the risk that the
death penalty will be imposed in spite of factors which may call
for a less severe penalty .... is unacceptable and incompatible
with the commands of the Eighth and Fourteenth Amendments.' "
Beck v. Alabama, 447 U.S. 625, 638 n. 13, 100 S.Ct. 2382, 2390
n. 13, 65 L.Ed.2d 392 (1980) (quoting Lockett v. Ohio, 438 U.S.
586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality
opinion)). But the Court's 1983 decision in California v. Ramos,
463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), which
upheld against constitutional challenge a state statute
requiring courts to instruct sentencing juries that the governor
could commute a life sentence without possibility of parole to a
lesser sentence, could have been read to indicate that the "factors
which may call for a less severe penalty" that count for Eighth
Amendment purposes do not include possible post-conviction
contingencies. See id. at 1014, 103 S.Ct. at 3460 (holding that,
notwithstanding the Eighth Amendment, "the wisdom of the
decision to permit juror consideration of possible commutation
is best left to the States").
Because of the potential
tension between Ramos, on the one hand, and the caselaw
exemplified by such decisions as Woodson, Lockett, and Beck, on
the other, we cannot conclude that Eighth Amendment
jurisprudence existing at the time Townes's conviction became
final made clear that a jury's decision to impose the death
penalty despite their uncertainty regarding whether the
defendant would be eligible for parole if sentenced instead to
life imprisonment would have amounted to cruel and unusual
The foregoing analysis directs
the conclusion that the rule Townes would have us adopt was not
"compelled by existing precedent," Saffle v. Parks, 494 U.S.
484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990), in March
1988. Therefore, we are without authority to adopt it on habeas
review of Townes's conviction unless it falls within one of two
exceptions. E.g., Graham, supra, 506 U.S. at ----, 113 S.Ct. at
897; Teague, 489 U.S. at 316, 109 S.Ct. at 1078. Plainly, the
first Teague exception--for rules that "place certain kinds of
primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe," Teague, 489 U.S. at
307, 109 S.Ct. at 1073 (internal quotation omitted)--is
inapplicable. The final question, therefore, is whether the new
rule Townes seeks would "implicate the fundamental fairness," id.
at 312, 109 S.Ct. at 1076, of the sentencing proceeding.
While we recognize that
divining what constitutes a "watershed rule[ ] of criminal
procedure," id. at 311, 109 S.Ct. at 1076, will not always be an
analytically neat matter, we think it clear that the rule Townes
seeks does not qualify. To put the point simply, the preceding
inquiry into whether Townes's desired right would require a "new
rule" of constitutional law reveals more than that that rule was
not "compelled" by precedent existing in 1988.
It also indicates at least a
substantial possibility that a majority of the Supreme Court
would have denied in 1994 that the Constitution recognizes such
a rule at all. We are hard-pressed to believe that, as a lower
court, we may acknowledge that a very recent Supreme Court
decision casts significant doubt on the existence of a given
rule as a matter of constitutional law yet hold that the rule is
nonetheless "implicit in the concept of ordered liberty." Palko
v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed.
In summary, even if the rule
announced in Simmons were not new, the rule that Townes seeks is.
Therefore, it can be applied retroactively only if it implicates
a fundamental right. As to that question, again without
addressing whether the rule of Simmons affects fundamental
rights, it is clear that the broader rule does not.
Since we cannot hold that the
trial court's refusal to respond to the jury's question
regarding Townes's eligibility for parole if spared a death
sentence violated any rule of constitutional law recognized by
the time Townes's conviction became final, Townes is not
entitled to collateral relief on this claim.
Townes raises four other
claims of error; three concerning evidentiary issues raised in
his state court trial, one involving the impartiality of the
federal magistrate judge assigned to conduct a hearing into
claims made in Townes's habeas petition. We agree with the
district court that all are without merit.
* According to the Supreme
Court of Virginia's opinion in this case:
Dorothy Moore, who patronized
the Majik Market two or three times a week, arrived at the store
about 2:00 a.m. on her way home from work. Goebel was behind the
counter, and Moore chatted with her briefly. Moore thought
Goebel was "acting really strange, nervous."
Moore walked to the rear of
the store to get a soft drink and was startled by a man standing
"in the back corner ... just watching," with his arms crossed "[l]ike
[he had] something in his hand." He gave Moore "this smile," but
did not speak. She obtained a bottle or can of Coca Cola and
proceeded to the cashier's counter. After paying Goebel for her
soft drink, Moore asked Goebel whether she was "sure everything
[was] okay." Although "acting scared," Goebel replied she was
"fine" and told Moore to leave because she needed "to lock the
Dorothy Moore learned of the
murder mid-morning of April 14, but she did not contact the
police for four weeks. On May 29, a detective showed her
photographs of six men. She picked two of the men, including
Townes, as suspects and told the officer she "could better [make
an identification] in a lineup." On June 5, she attended a live
lineup which included Townes and four other men. She made a
positive identification of Townes as the man she had seen in the
Majik Market on the night of Goebel's murder.
362 S.E.2d at 653-54. Townes
asserts, and the State does not dispute, that none of the four
other men was the "other" person (besides Townes) she picked out
of the photo array. Townes argues that by permitting him to be
the only constant between the initial photo array and the live
lineup--when Moore identified another, equally possible, suspect
from the photo array--Virginia Beach authorities unreasonably
and impermissibly suggested to Moore that Townes was the person
she saw in the Majik Market. According to Townes, the type of
conduct in which the Commonwealth engaged in this case was
precisely that condemned by the Supreme Court in Foster v.
California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
The Commonwealth seeks to
distinguish Foster on its facts--in that case the police
arranged multiple encounters between accused and witness--and
argues that under the totality of the circumstances test of
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53
L.Ed.2d 140 (1977), Moore--who observed Townes under favorable
conditions of light and proximity--could make a reliable and
There is certainly no flat
prohibition against making the same individual be the one
constant in a photospread and at a line-up. See United States v.
Portillo, 633 F.2d 1313, 1324 (9th Cir.1980), cert. denied, 450
U.S. 1043, 101 S.Ct. 1763, 1764, 68 L.Ed.2d 241 (1981). And
unlike Kimbrough v. Cox, 444 F.2d 8 (4th Cir.1971), this is not
a case where the witness was presented with a picture of the
Rather, Moore saw photos of
six suspects from which she identified Townes as a "possible",
confirming this suspicion at the subsequent line-up. Given the
favorable conditions under which the witness observed Townes on
the night of the murder, and the lack of any unconstitutional
suggestiveness at the lineup itself, we cannot find that the
district court abused its discretion in denying this claim.
Townes was also identified by
Herman F. Christenbury as the man who, on April 10, 1985, a few
days before the Goebel murder, called at Christenbury's home in
response to an ad Christenbury had placed in a local paper for
the sale of a Star brand .45 caliber automatic handgun.
According to Christenbury, Townes bought the gun, paying for it
in cash. Although the actual murder weapon was never recovered,
there is apparently no dispute that this type of gun was the
kind that killed Goebel.
Christenbury later identified
Townes at a lineup where Townes did not have counsel present.
Due to the absence of counsel, the trial court suppressed the
evidence of that identification. However, the court allowed
Christenbury to identify Townes in-court because it was derived
from for a source sufficiently independent of the uncounseled
lineup (i.e. Townes's visit to Christenbury's home) to remove
any taint resulting therefrom.
The district court held
Christenbury's in-court identification of Townes
constitutionally admissible. The court noted that despite the
improperly conducted lineup, Christenbury's contact with the
defendant was so clear and precise that his testimony
identifying the petitioner as the man who came to his home and
to whom he sold a pistol of the type specifically used in the
slaying of Virginia Goebel, was allowed into evidence. It was
for the jury to determine his credibility. There was no question
with regard to admissibility.
We agree. In United States v.
Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149
(1967), the Court enumerated several factors for courts to
employ in "mak[ing] the determination whether the in-court
identifications had an independent origin" other than a "tainted"
lineup identification. Among the factors is "the prior
opportunity to observe the alleged criminal act". Id. at 241, 87
S.Ct. at 1940.
Christenbury's assertion that
he and Townes were alone in his kitchen, carrying on a
conversation, for at least ten minutes provides a sufficient
independent basis for the trial court to have permitted his in-court
As his last claim of trial
error, Townes alleges a violation of his due process and Sixth
Amendment rights to obtain material and exculpatory evidence in
the prosecution's possession in a timely and adequate fashion.
See Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963).
Although Townes asserts that
there were several "discovery/ due process violations," he
focuses particularly on the prosecution's alleged failure to
turn over credit card receipts from the convenience store (which
pertain to the persons in the store on the night of the murder).
The Supreme Court of Virginia
found "that Townes was given information concerning the credit
card purchases well in advance of the first day of trial." 362
S.E.2d at 660. As for further, post-conviction discovery, the
magistrate judge and district court found that petitioner could
not establish "good cause" as required by Rules Governing
Section 2254 Cases in the United States District Courts,
specifically Rule 6(a), before discovery requests are granted.
This was a discretionary ruling in which we find no abuse.
Townes argues that although
the magistrate judge "initially appeared to take Petitioner's
habeas petition seriously," that early solicitude was "quickly
replaced by a callous attitude towards both Petitioner and [his]
counsel, which could only have been based upon events outside of
the record." Townes's Opening Br., at 42-43.
In assessing this claim of
partiality, the district judge found that "[t]here is no
evidence that the Magistrate Judge's opinion was affected by
anything other than the merits of the case." We find no reason
to disturb this ruling.
Finding no error requiring
reversal of the district court's dismissal of Townes's habeas
petition, we affirm its judgment.
LUTTIG, Circuit Judge,
concurring in part and concurring in the judgment:
I join all of the majority
opinion except for Part II.B.1-2. I cannot join Part II.B.1-2
because in that section the court addresses the merits of Townes'
principal claim under Simmons v. South Carolina, --- U.S. ----,
114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), in disregard of the
Supreme Court's recent directive in Caspari v. Bohlen, --- U.S.
----, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994), and our circuit's
decision only two months ago in Gray v. Thompson, 58 F.3d 59, 64
(4th Cir.1995). In Caspari, the Court squarely held that "if the
State ... argue[s] that the defendant seeks the benefit of a new
rule of constitutional law, the court must apply Teague before
considering the merits of the claim." --- U.S. at ----, 114 S.Ct.
at 953 (emphasis in original); see also Gray, 58 F.3d at 64 ("[T]he
Supreme Court made clear [in Caspari ] that federal courts must
analyze whether a habeas petitioner seeks to extend the
boundaries of existing law before considering the merits of the
claim, if the state so argues.") (citation omitted).
The reasons for the Supreme
Court's prohibition, and in turn our own circuit's prohibition,
on considering the merits until after retroactivity has been
considered were well established even before Teague was decided:
We conclude ... that [it was]
... error [for] ... the Court of Appeals [to] ... reach[ ] out
to decide that Almeida-Sanchez [v. United States, 413 U.S. 266,
93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) ] applied to checkpoint
searches in a case that did not require decision of the issue.
This Court consistently has
declined to address unsettled question regarding the scope of
decisions establishing new constitutional doctrine in cases in
which it holds those decisions nonretroactive. This practice is
rooted in our reluctance to decide constitutional questions
unnecessarily. Because this reluctance in turn is grounded in
the constitutional role of the federal courts, the district
courts and courts of appeals should follow our practice, when
issues of both retroactivity and application of constitutional
doctrine are raised, of deciding the retroactivity issue first.
As the Court of Appeals correctly decided in this case that
Almeida-Sanchez did not apply to a 1971 search, it should have
refrained from considering whether our decision in that case
applied to searches at checkpoints.
Bowen v. United States, 422
U.S. 916, 920-21, 95 S.Ct. 2569, 2573, 45 L.Ed.2d 641 (1975) (citations
omitted and emphasis added); see also Goeke v. Branch, --- U.S.
----, ----, 115 S.Ct. 1275, 1278, 131 L.Ed.2d 152 (1995) (per
curiam ) ("We do not (and we may not, in the face of the State's
invocation of Teague ) reach the merits of that contention." (emphasis
Here, petitioner argues that
he is entitled to the benefit of the rule announced in Simmons,
a case that post-dates the finality of his conviction. The state
in turn contends that the Simmons rule is "new" and therefore,
under Teague, unavailable to Townes. Therefore, our first
inquiry must be whether, under Teague, Simmons announced a new
rule or whether that case instead was a mere application of an
existing rule of law.
The majority circumvents the
holdings of Caspari and Gray by introducing into the "new rule"
analysis, and then answering, what it characterizes as an
inquiry antecedent to the Teague inquiry, namely whether the
case whose benefit petitioner seeks would actually govern
disposition of petitioner's case. See op. at 848. Transparently,
this question is identical to that raised by petitioner's claim
on the merits; this is confirmed by the fact that had the
majority concluded that Townes "really did" seek the rule of
Simmons and that reliance upon Simmons was not barred by Teague,
then its analysis of the merits of Townes' claim would be
precisely that undertaken in Part II.B.1-2. Indeed, in apparent
recognition of this, in Sawyer v. Smith, 497 U.S. 227, 110 S.Ct.
2822, 111 L.Ed.2d 193 (1990), the Supreme Court considered and
rejected exactly the same framework that the majority adopts in
order to avoid the Teague inquiry:
At the outset we note that the
parties dispute whether Caldwell [v. Mississippi, 472 U.S. 320,
105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) ], even if its rule
applies, could support any claim for relief in petitioner's
case. The State emphasizes that [ Caldwell was narrower than
petitioner asserts].... We need not address the significant
questions concerning the merits of petitioner's Caldwell claim
on these facts, or the question whether application of Caldwell
to the facts presented here would itself involve a new rule of
law. Rather, we address only whether Caldwell is available to
petitioner [under Teague ] as a ground upon which he may seek
Sawyer, 497 U.S. at 233-34,
110 S.Ct. at 2827.
The implications of the
majority's approach for the disciplined decisionmaking that was
purposely imposed by the Coleman and Gray rule are significant.
Apart from further relegating the Supreme Court's decision in
Teague v. Lane in this circuit to a rule of little or no
practical consequence, see also Turner v. Williams, 35 F.3d 872
(1994), cert. denied, --- U.S. ----, 115 S.Ct. 1359, 131 L.Ed.2d
216 (1995), the methodology employed by the majority gives
panels of this court license to issue what in essence are
advisory opinions on significant constitutional questions which,
because they are Teague-barred, are not even cognizable on
federal habeas. Here, for example, our circuit is henceforth
bound by the majority's interpretation of Simmons--an
interpretation with which, this time, I happen to agree--when
the scope of that decision is not even properly before the court.
I would decide the question we
are required by Caspari and Gray to decide, namely whether
Simmons announced a new rule of constitutional law, and hold
that Simmons is a new rule and thus unavailable to petitioner
under Teague. Cf. Stewart v. Lane, 60 F.3d 296, 301 (7th
Cir.1995) (holding that Teague bars application of Simmons to a
conviction final in 1985).
It is implausible that a
reasonable jurist, considering the matter in 1988, would have
felt compelled to hold that petitioner had a constitutional
right to have the jury instructed on his parole ineligibility.
At that time, a jurist would have been confronted with
California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d
1171 (1983), which repeatedly emphasized that the decision about
whether to inform the jury about such matters is to be left to
the discretion of the states and, indeed, which cited "approv[ingly],"
see Simmons, --- U.S. at ----, 114 S.Ct. at 2200 (O'Connor, J.,
concurring in the judgment), a Georgia statute "prohibiting
argument as to possibility of pardon, parole, or clemency," and
the practice of "[m]any state courts" to likewise prohibit such
instructions, Ramos, 463 U.S. at 1013 n. 30, 103 S.Ct. at 3460
n. 30. That jurist would also have faced our circuit's decision
in Turner v. Bass, 753 F.2d 342, 354 (4th Cir.1985), rev'd on
other grounds, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986)
(expressly holding that "while it is constitutionally
permissible to instruct the jury on the subject of parole, such
an instruction is not constitutionally required" (citing Ramos
)) and the Fifth Circuit's decision in O'Bryan v. Estelle, 714
F.2d 365, 389 (5th Cir.1983) ("[W]e cannot say that an
instruction on parole is constitutionally mandated in a capital
case."). In the face of such strong contrary Supreme Court and
circuit precedent, it would be baseless to claim that no
reasonable jurist could have held--in 1988--that the
Constitution did not require a jury instruction on parole
TOWNES, Jr., Petitioner-Appellant,
Ronald J. ANGELONE, Director, Respondent-Appellee
United States Court of Appeals,
73 F.3d 545
Submitted Jan. 23, 1996.
Decided Jan. 23, 1996
Before NIEMEYER and LUTTIG,
Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Townes is sentenced
to death and is scheduled to be executed
tonight at 9:00 p.m. for his 1986 murder of
Virginia Goebel. Yesterday, January 22,
1996, Townes filed
this appeal from the order of the district
court dated January 17, 1996, denying his
petition for a writ of habeas corpus,
challenging a separate 1976 robbery
conviction which was presented to the jury
at his murder trial as evidence of his
future dangerousness. In essence,
to the 1976 robbery conviction amounts to a
challenge to evidence presented during his
murder trial, which we reviewed recently in
Townes v. Murray,
68 F.3d 840 (4th Cir.1995), cert. denied,
--- U.S. ----, 116 S.Ct. 831, --- L.Ed.2d
robbery conviction which
Townes challenges in this case was
entered pursuant to a guilty plea, and no
direct appeal was taken. That conviction,
however, has been the subject of numerous
collateral challenges, catalogued in the
magistrate judge's report and recommendation
to the district court in this case, dated
February 22, 1993. Even though
Townes' claims are
barred by multiple defaults in both state
and federal court, the district court
nevertheless reviewed their merits and
rejected all of them.
carefully reviewed all of the matters
presented and conclude that, for the reasons
given by the district court in its January
17, 1996 opinion, Townes
v. Angelone, Civil Action No. 96-42-2 (E.D.Va.
Jan. 17, 1996), the points raised on appeal
have no merit. Accordingly, the judgment of
the district court is affirmed.