Mueller v. Murray

Present: All the Justices

EVERETT LEE MUELLER

v. Record No. 951874 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 1, 1996
EDWARD W. MURRAY, DIRECTOR,
VIRGINIA DEPARTMENT OF
CORRECTIONS

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

Everett Lee Mueller was convicted by a jury of the capital

murder, rape, and abduction of Charity Powers and sentenced to

death. We affirmed the judgment of the circuit court in Mueller
v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992), cert.

denied, 507 U.S. 1043 (1993).

Mueller filed a petition for habeas corpus in the circuit

court alleging, among other things, that his federal and state

constitutional rights were violated because "the sentencing jury

was not allowed to know of his ineligibility for parole." The

circuit court dismissed the petition in part and denied it in

part, and we awarded Mueller an appeal limited to that issue.

In considering this question, we determine whether Simmons
v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), announced

a "new rule" within the meaning of Teague v. Lane, 489 U.S. 288

(1989). We conclude that Simmons established a "new" rule that

does not apply retroactively to Mueller's case. 1

1
In addressing the merits of Mueller's due process claim, we

reject the Commonwealth's argument that the claim is procedurally

barred. Mueller substantially raised the issue of his due

process right to inform the jury of his parole ineligibility,
 I.

On the evening of October 5, 1990, Taryn Potts took her ten

year old daughter, Charity Powers, to a skating rink. Potts had

arranged to have a friend drive Charity home from the rink later

that night, but the friend fell asleep and did not go to the

rink. When Potts arrived home at 3:00 a.m. on October 6, 1990,

and discovered that her friend had not brought Charity home, she

immediately contacted the police, who initiated a search for her

daughter.
Kevin H. Speeks, who knew Charity, testified that he saw her

at a fast food restaurant near the skating rink at about 12:50

a.m. on October 6, 1990. While at the restaurant, Speeks also

saw a man who appeared to be thirty years of age and of medium

height, driving a cream-colored station wagon with wood siding

through the parking lot several times. As Speeks left the

restaurant, he saw the man standing on the right side of the

building, and he also observed Charity sitting on a curb located

on the same side of the building. Sergeant Mike Spraker of the

Chesterfield County Police Department testified that Mueller

customarily drove a cream-colored station wagon which had wood

(..continued)

based on the Commonwealth's argument of future dangerousness, at

trial and on direct appeal. (See Appendix from Record Nos.

920287 and 920449, at 93, 319-22, 1260-62, and pp. 38-40 of

Mueller's brief on direct appeal to this Court.)

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siding.

When Mueller spoke with the police on October 8 and 9, 1990,

he admitted that he had talked to a young female on October 5,

1990, at a fast food restaurant that might have been near the

skating rink. Based on information gained over the course of

their investigation, the police searched the area near Mueller's

home. On February 8, 1991, they found "a clump of hair and what

looked like some white bone sticking out of the ground." As a

result of this discovery, the police exhumed Charity's body,

which had been buried about 900 feet behind Mueller's house. The

police found a knife stuck in the ground about 174 feet from the

grave.
The police arrested Mueller on February 12, 1991, and

advised him of his Miranda rights. During an interrogation,

Mueller confessed to the crime. He stated that he had agreed to

give Charity a ride home from the restaurant but that he drove

her to his house instead.

Mueller said that he thought Charity was 18 or 19 years old.

Charity was about 4'8" tall and weighed 90 pounds. Mueller told

the police that Charity agreed to have sex with him, and that he

took her to the woods behind his house where he had sexual

intercourse with her. He stated that, although he had a knife

nearby, he did not use it.

Mueller told the police that he strangled Charity to death

because he was afraid that she would report the incident. He

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later purchased a shovel from a local store, buried her body, and

burned her clothes and jewelry. After making this confession,

Mueller showed the police the area where he had buried the body,

as well as the locations where he had raped her and had left the

knife.

The medical examiner who conducted an autopsy on Charity's

body testified that Charity's throat had been cut to the depth of

one inch, resulting in a horizontal cut on the epiglottis. She

stated that such a cut would result in the severance of the

carotid artery and the jugular vein. According to the medical

examiner, a person suffering from such an injury would die after

several minutes, and there were indications that Charity had bled

before her death. Based on these facts, the medical examiner

concluded that the cause of death was "acute neck injury."
The medical examiner also stated that, on examining the skin

over the breast area, there were "irregular holes in the area

where each nipple would be." The medical examiner also observed

a "big gash" on the victim's upper left thigh. She also

determined that there were three tears to the hymenal ring of the

vagina which were consistent with sexual penetration.

At the conclusion of this phase of the bifurcated trial, the

jury found Mueller guilty of capital murder in violation of Code

§ 18.2-31(5) and former Code § 18.2-31(8) 2 (murder in the

2
Former Code § 18.2-31(8) was replaced by Code § 18.2-31(1),

which includes in the definition of capital murder "[t]he

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commission of a rape, and murder of a child under 12 in the

commission of an abduction). The jury also convicted Mueller of

rape and abduction with intent to defile, and it fixed his

punishment at life imprisonment on both these charges.

At the penalty phase of the trial, each of four women,

including Mueller's sister, testified that Mueller had raped her

at knife point. Two of these rapes resulted in criminal

convictions. Mueller's expert, Dr. Mariah Travis, a clinical

psychologist, acknowledged that Mueller did not have "a working

conscience," and that he had "graduated to . . . a new and even

more dangerous level."
Mueller testified during the penalty phase. When asked

whether he felt any remorse for having raped one particular

victim, Mueller replied, "Which one is that? Ha, ha." On

completing his testimony, Mueller stated, "Get this God damn shit

over with so that I can go smoke a cigarette."

At the conclusion of the penalty phase evidence, the jury

fixed Mueller's punishment for capital murder at death, based on

findings of both vileness and future dangerousness. After the

(..continued)

willful, deliberate, and premeditated killing of any person in

the commission of abduction, as defined in Code § 18.2-48, when

such abduction was committed with the intent to extort money or a

pecuniary benefit or with the intent to defile the victim of such

abduction."

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hearing required by Code § 19.2-264.5, the trial court imposed

the sentences fixed by the jury.

II.

In this appeal, Mueller argues that his death sentence

should be set aside because the trial court did not allow him to

inform the jury that he was ineligible for parole under Code

§ 53.1-151(B1). That section provides in part that "[a]ny person

convicted of three separate felony offenses of (i) murder, (ii)

rape or (iii) robbery by the presenting of firearms or other

deadly weapon . . . shall not be eligible for parole."
In support of his argument, Mueller relies on Simmons, in

which the Supreme Court held that, when the prosecution seeks the

death sentence based on the defendant's future dangerousness, and

the only alternative sentence is life imprisonment without the

possibility of parole, the defendant has a due process right to

inform the jury that he is parole ineligible. 512 U.S. at ___,

114 S.Ct. at 2196. Mueller contends that, under Simmons, the

trial court's ruling denied him due process because he was not

able to rebut the Commonwealth's argument of future dangerousness

with evidence of his parole ineligibility.

Mueller asserts that the rule articulated in Simmons is not
a "new" rule, because it was compelled by two United States

Supreme Court decisions in effect at the time of his trial and

direct appeal, Gardner v. Florida, 430 U.S. 349 (1977), and

Skipper v. South Carolina, 476 U.S. 1 (1986). Thus, Mueller

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argues that the rule in Simmons applies retroactively to his

case. We disagree.

III.

In Teague v. Lane, 489 U.S. 288, the Supreme Court stated

that, on habeas corpus review, constitutional error must be

evaluated together with the interests of comity and finality.

Id. at 308. Based on these multiple considerations, a Supreme

Court decision articulating a "new" constitutional rule of

criminal procedure generally will not be applied to a conviction

which has become final before the rule is announced. Id. at 310.

"[A] case announces a 'new' rule if the result was not

dictated by precedent existing at the time the defendant's

conviction became final." Id. at 301. Since Mueller seeks the

benefit of a rule articulated after his conviction became final

on direct appeal, this Court must first determine whether Simmons

announced a "new" rule under Teague before considering the merits

of Mueller's claim. See Caspari v. Bohlen, 510 U.S. 383, 390

(1994); O'Dell v. Netherland, ___ F.3d ___, ___ (4th Cir. 1996)
(Slip Op. at 7).

The Teague analysis requires three steps. First, the

reviewing court must determine the date on which the defendant's

conviction became final for retroactivity purposes. Caspari, 510

U.S. at 390. Second, the reviewing court must "survey the legal

landscape" as it existed on the date the defendant's conviction

became final to determine whether existing constitutional

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precedent compelled the conclusion which the defendant sought.

Id. Third, if the reviewing court determines that the defendant

seeks the benefit of a "new" rule, the court "must decide whether

that rule falls within one of the two narrow exceptions to the

nonretroactivity principle." Id.

IV.

"A state conviction and sentence become final for purposes

of retroactivity analysis when the availability of direct appeal

to the state courts has been exhausted and the time for filing a

petition for a writ of certiorari has elapsed or a timely filed

petition has been finally denied." Id. We determine the date on

which Mueller's convictions became final by the date the United

States Supreme Court denied a rehearing on his petition for

certiorari on direct review of his conviction and death sentence.

See Penry v. Lynaugh, 492 U.S. 302, 314 (1989). Thus, Mueller's

convictions became final for retroactivity purposes on June 7,

1993. See Mueller v. Virginia, 507 U.S. 1043 (1993).

We next consider whether existing precedent compelled the

conclusion advanced by Mueller. A rule is not compelled by

existing precedent if those decisions merely inform or control

the analysis of the petitioner's claim. Saffle v. Parks, 494

U.S. 484, 491 (1990). Rather, a rule is compelled by existing

precedent only if a contrary conclusion would have been

objectively unreasonable. O'Dell, ___ F.3d at ___ (Slip Op. at

12). Thus, as the Supreme Court explained in Butler v. McKellar,

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494 U.S. 407 (1990), "[t]he 'new rule' principle . . . validates

reasonable, good-faith interpretations of existing precedents

made by state courts even though they are shown to be contrary to

later decisions." Id. at 414.

For purposes of "new" rule analysis, the scope of the rule

under examination is defined as the narrowest principle of law

actually applied to resolve the issue presented. O'Dell, ___

F.3d at ___ (Slip Op. at 11). Thus, the "rule" of Simmons is

"that 'where the State puts the defendant's future dangerousness

in issue, and the only available alternative sentence to death is

life imprisonment without parole, due process entitles the

defendant to inform the capital sentencing jury -- by either

argument or instruction -- that he is parole ineligible.'"
Townes v. Murray, 68 F.3d 840, 850 (4th Cir. 1995), cert. denied,

___ U.S. ___, 116 S.Ct. 831 (1996) (quoting Simmons, 512 U.S. at

___, 114 S.Ct. at 2201).

In June 1993, when Mueller's conviction became final, the

"legal landscape" contemplated by Teague included the principal
cases on which Simmons relied, Gardner and Skipper. In Gardner,

the defendant was convicted of first degree murder, and the jury

recommended that he receive a life sentence. However, the trial

court sentenced the defendant to death, relying on a confidential

presentence report that the defendant did not have an opportunity

to see or rebut. 430 U.S. at 353.

The Supreme Court vacated the defendant's death sentence,

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holding that the defendant's constitutional rights were violated

by use of the secret report. The three-justice plurality

concluded that the sentencer's use of the report denied the

defendant due process, id. at 362, while the two justices

concurring in the judgment based their decision on Eighth

Amendment grounds. Id. at 363-64.

In Skipper, the trial court denied the defendant the right

to present the jury with evidence of his good behavior during the

seven months he spent in jail awaiting trial. 476 U.S. at 4.

The Supreme Court held that "evidence that the defendant would

not pose a danger if spared (but incarcerated) must be considered

potentially mitigating," and that under Eddings v. Oklahoma, 455
U.S. 104 (1982), exclusion of such relevant evidence from the

sentencer's consideration violates the Eighth Amendment.

Skipper, 476 U.S. at 5; see also Eddings, 455 U.S. at 112-13.

Skipper also addressed the defendant's right of due process

in a footnote, stating that
[w]here the prosecution specifically relies on a
prediction of future dangerousness in asking for the
death penalty, it is not only the rule of Lockett [v.
Ohio, 438 U.S. 586 (1978)] and Eddings that requires
that the defendant be afforded an opportunity to
introduce evidence on this point; it is also the
elemental due process requirement that a defendant not
be sentenced to death "on the basis of information
which he had no opportunity to deny or explain."
Gardner v. Florida, 430 U.S. 349, 362 (1977).

Id. at 5 n.1.

In addition to Gardner and Skipper, the "legal landscape" of
1993 included California v. Ramos, 463 U.S. 992 (1983), in which

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the trial court, as required by state law, instructed the jury

that a sentence of life imprisonment without parole may be

commuted by the Governor to a sentence providing the possibility

of parole. Id. at 995-96. The defendant argued that basic

fairness entitled him to inform the jury that the Governor also

could commute a death sentence, so the jury would not have the

mistaken impression that it could guarantee the defendant's

permanent removal from society by imposing the death sentence.
Id. at 1010-11.

The Supreme Court held that the Eighth and Fourteenth

Amendments did not entitle the defendant to inform the jury of

the Governor's power to commute a death sentence. In explaining

its holding, the Court specifically stated that the challenged

procedure did not violate the due process rule of Gardner. Id.

at 1001. The Court also emphasized the deference given a state's

determination regarding what sentencing information the jury will

receive. The Court stated,
[W]e defer to the State's identification of the
Governor's power to commute a life sentence as a
substantive factor to be presented for the sentencing
jury's consideration.

Our conclusion is not intended to override the
contrary judgment of state legislatures that capital
sentencing juries in their States should not be
permitted to consider the Governor's power to commute a
sentence . . . . We sit as judges, not as legislators,
and the wisdom of the decision to permit juror
consideration of possible commutation is best left to
the States.

Id. at 1013-14 (footnote omitted) (emphasis added). Moreover, in

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stating this principle of broad deference, the Court noted, with

apparent approval, that "[m]any state courts have held it

improper for the jury to consider or to be informed -- through

argument or instruction -- of the possibility of commutation,

pardon, or parole." Id. at 1013 n.30 (emphasis added).

V.

The precise issue before us, whether the rule in Simmons was

compelled by Gardner, Skipper, and Ramos, was considered in
O'Dell by the United States Court of Appeals for the Fourth

Circuit, sitting en banc. The defendant in O'Dell, like Mueller,

was convicted in Virginia of capital murder and sentenced to

death by a jury that was not informed of his parole

ineligibility. O'Dell argued, among other things, that Simmons

did not announce a "new" rule and, thus, that Simmons applied

retroactively to his case, mandating the reversal of his death

sentence.

The Court of Appeals disagreed, holding that Simmons

articulated a "new" rule. The Court stated that, prior to
Simmons, a reasonable jurist could have concluded under Ramos

that the Constitution left to the states the decision whether to

instruct the jury on the defendant's parole ineligibility.

O'Dell, ___ F.3d at ___ (Slip Op. at 30).

The Court further stated that a jurist reasonably could have

distinguished the rule of Gardner and Skipper regarding the

defendant's right to rebut prosecution claims with factual

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evidence, from the rule in Ramos regarding the defendant's right

to rebut prosecution claims with arguments from state law. Id.

at ___ (Slip Op. at 29). The Court explained that this

distinction was reasonable prior to Simmons, because "relevant

factual information, like secret sentencing reports or prior good

behavior, cannot change with time, but a state's legal standards

and post-conviction procedures, like eligibility for commutation

or parole can always change long after the sentencing jury

renders its verdict." Id. at ___ (Slip Op. at 31-32) (citation

omitted). We agree with the Court of Appeals' analysis.

In Mueller's direct appeal, this Court explicitly relied on

Ramos in rejecting Mueller's due process argument, stating that
Mueller argues that the trial court violated his due
process rights by refusing to instruct the jury that,
pursuant to Code § 53.1-151(B1), he would not be
eligible for parole . . . . We hold that the trial
court did not err in its rulings here. This Court has
held uniformly and repeatedly that information
regarding parole eligibility is not relevant for the
jury's consideration. Further, the United States
Supreme Court has expressly left the determination of
this question to the individual states, as a matter of
state law. California v. Ramos, 463 U.S. 992, 1013-14
(1983).

Mueller, 244 Va. at 408-09, 422 S.E.2d at 394 (emphasis added)

(citations omitted).

Prior to Simmons, reliance on Ramos was objectively

reasonable for the proposition that the Constitution permitted

the states to decide whether to inform a capital sentencing jury

of a defendant's parole ineligibility. The argument rejected by

the Court in Ramos was, in principle, the same argument

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successfully advanced in Simmons, that the defendant was entitled

to inform the sentencing jury whether the death sentence was the

only option that would insure the defendant would never return to

society.

Before Simmons, the Supreme Court had never held that a

defendant had a due process right to rebut prosecution arguments

of future dangerousness with evidence that was unrelated to the

defendant's character and crime. O'Dell, ___ F.3d at ___ (Slip

Op. at 32). Moreover, the decision in Skipper did not address
Ramos or its rationale of giving broad deference to the states in

determining the information that should be given a capital

sentencing jury. Thus, we conclude that Simmons announced a

"new" rule within the meaning of Teague.

VI.

Having concluded that reliance on Ramos was objectively

reasonable and, thus, that Simmons announced a "new" rule, we

turn to the third and final step in the Teague analysis,

assessing whether the "new" rule of Simmons falls within one of
the two narrow exceptions to the nonretroactivity principle. See

Caspari, 510 U.S. at 390. The first exception applies to a rule

that places "certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe." Teague, 489 U.S. at 307 (citation omitted). This

exception is inapplicable here, because Simmons does not place

any conduct outside the scope of the criminal law, nor does it

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shield a particular class of persons from the imposition of the

death penalty. See O'Dell, ___ F.3d at ___ (Slip Op. at 40).

The second exception under Teague applies only to

"watershed" rules of criminal procedure, which are so fundamental

that they are "implicit in the concept of ordered liberty."

Teague, 489 U.S. at 311 (citations omitted). An often-cited

example of such a rule is Gideon v. Wainwright, 372 U.S. 335

(1963). See Saffle, 494 U.S. at 495. We do not believe that the

rule in Simmons is such a groundbreaking rule "implicit in the
concept of ordered liberty." See Teague, 489 U.S. at 311. Thus,

since the rule in Simmons does not fall within either Teague

exception, the rule is not applicable retroactively to Mueller's

case. 3

VII.

Mueller advances two additional arguments, stating that the

trial court's refusal to allow him to inform the jury of his

parole ineligibility (1) violated his Eighth Amendment rights,

and (2) violated his right under Article I, Section 8 of the

Virginia Constitution "to call for evidence in his favor."

However, we hold that these arguments are procedurally barred,

3
Mueller also argues that his due process rights under

Article I, Section 11 of the Virginia Constitution were violated,

because the jury was not informed of his parole ineligibility.

We reject this claim under the analysis detailed above.

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because Mueller did not raise them on direct appeal. See Slayton

v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974), cert.

denied sub nom. Parrigan v. Paderick, 419 U.S. 1108 (1975). 4

For these reasons, we will affirm the trial court's

judgment.

Affirmed.

4
We also do not consider Mueller's arguments that he

received ineffective assistance of counsel and that his rights

under Code §§ 19.2-264.2 and -264.4 were violated, when he was

not allowed to inform the jury of his parole ineligibility.

These arguments are outside the scope of the appeal awarded in

this case.

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