Gregory Warren Beaver v. J.D. Netherland, Warden

LUTTIG, Circuit Judge,

concurring in part and dissenting in part:

I concur in the judgment that a stay of Beaver’s scheduled execution is, under applicable Supreme Court easelaw, unauthorized. Were we to grant the stay of execution here, I believe that we would, alternatively, court summary reversal or affirmatively mislead the Supreme Court into concluding that we believe that'the underlying issue in this case is certworthy when we do not so believe. I dissent from the court’s further extension of our stay of mandate, however, because I believe that that extension is unauthorized as well.

In Netherland v. Tuggle, — U.S. -, 116 S.Ct. 4, 132 L.Ed.2d 879 (1995) (“Tuggle I ”), the Supreme Court summarily reversed our court’s stays of execution and mandate which were entered pursuant to what had been our routine practice of granting such stays to unsuccessful capital petitioners, without regard to the requirements of Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), while those petitioners sought certiorari review from the Supreme Court.1 The Court admonished us for *981granting such stays “by summary order without opinion or discussion,” observing that “[n]othing indicates that the Court of Appeals even attempted to undertake [the] three-part inquiry required by our decision in Barefoot v. Estelle.” Tuggle I, — U.S. at -, 116 S.Ct. at 5. The Court reminded us, in language whose import is unmistakable, that it had, in Autry v. Estelle, 464 U.S. 1, 2-3, 104 S.Ct. 20, 21-22, 78 L.Ed.2d 1 (1983), and Maggio v. Williams, 464 U.S. 46, 48, 104 S.Ct. 311, 312-313, 78 L.Ed.2d 43 (1983), rejected the view that “a capital defendant as a matter of right [is] entitled to a stay of execution until he has filed a petition for certiorari in due course.” Tuggle I, — U.S. at -, 116 S.Ct. at 5.

With few, if any, exceptions, our court has continued routinely to grant stays in disregard of the Supreme Court’s instruction in Tuggle I. Initially, after our resort to the stay of execution was limited by that case, we did so through the vehicle of a stay of mandate. Thus, in Tuggle v. Netherland, 94-4005 (“Tuggle II ”), we summarily granted the defendant a stay of mandate, stating, in reasoning identical to that employed to justify our earlier stays of mandate and execution which were vacated, that our stay of mandate “serve[d] to stay Tuggle’s execution until the final disposition of any timely-filed petition for certiorari in the Supreme Court.” (Likewise, in O’Dell v. Netherland, 94-4013(L), “by summary order without opinion or discussion,” see Tuggle I, — U.S. at -, 116 S.Ct. at 5, we stayed our mandate in order to allow time for the filing of a petition for certiorari.) When the Supreme Court finally corrected our mistaken belief that a stay of mandate operated as the functional equivalent of a stay of execution, see Netherland v. Tuggle, — U.S. -, 116 S.Ct. 1821, 134 L.Ed.2d 925 (1996) (Rehnquist, C.J., Circuit Justice) (“Tuggle III”), we simply returned to our pre-Tuggle I practice of routinely granting stays of mandate and execution without analysis, having specially apprised counsel in numerous pending capital cases of them need to file motions for stay of execution separate from motions for stay of mandate.2 Indeed, the very next day after Tuggle III was decided, we granted Tuggle himself a stay of execution without a single word of discussion or analysis of the Barefoot standards — precisely what the Supreme Court held in Tuggle I that we could not do. See Tuggle v. Netherland, 94-4005 (“Tuggle IV”).

Our court’s confusion, and consequent failure to abide by Supreme Court precedent regarding the proper standards governing stays of execution, persists to this day. In his separate opinion, Judge Widener contends, notwithstanding the reaffirmation of Barefoot in Tuggle I, that Tuggle I itself modified Barefoot sub silentio so as to render Barefoot’s three-part test disjunctive. And, significantly, in a separate opinion entered today on the Supreme Court’s remand following summary vacatur of our stay of execution in Bennett v. Angelone, a panel adopts Judge Widener’s “revised” standard as binding precedent for our entire court. See Bennett v. Angelone, 102 F.3d 110, 111 n * (1996).

Tuggle I, of course, did not modify Barefoot, nor did it purport to do so. In Tuggle I, the Supreme Court made the simple point that our court had not “even attempted to undertake the three-part inquiry required by ... Barefoot v. Estelle.” — U.S. -, 116 S.Ct. at 5. It then went on, in the very next sentence, to observe that “[tjhere is no hint” that our court found either that four Members of the Supreme Court would grant cer-tiorari or that a significant possibility of reversal existed. The full passage reads as follows:

Nothing indicates that the Court of Appeals even attempted to undertake the three-part inquiry required by our decision in Barefoot v. Estelle. There is no hint that the court found that “four Members of this Court would consider the underlying issue sufficiently meritorious for the grant of certiorari” or that “a significant .possibility of reversal” existed.

*982— U.S. -, 116 S.Ct. at 5 (citations omitted). From the Court’s use of the term “or,” instead of “and,” Judge Widener in this case and the full panel in Bennett reason that Barefoot has been modified. Quite obviously, the Court was not, by its passing observation, summarily modifying its seminal opinion in Barefoot. It was, by way of explanation, merely emphasizing that we had analyzed neither of the two requirements of Barefoot there in issue. It could have been clearer, I suppose; however, there was no reason to be so. It would never have occurred to the Court that its passage would be misread as it has been today.

The confusion that will be generated by today’s panel opinion in Bennett v. Angelone is compounded by the fact that the panel itself does not even apply the standard it adopts. If, as the panel opinion holds, the Barefoot standard is indeed a disjunctive one, then the panel incorrectly confines its inquiry to whether there exists a significant possibility of reversal; as well, the panel should have considered whether, despite the unlikelihood of reversal, four Members of the Supreme Court would nonetheless vote to grant certio-rari. (The panel’s contention notwithstanding, we are in no better position to “know[ ] or intelligently ascertain[ ] the individual opinions of the Members of the Supreme Court,” ante at 979, as to whether they might reverse our opinion, than we are to know or ascertain whether four of the Court’s Members would vote to grant certiorari.) Indeed, if the panel were correct, and the test now truly is disjunctive, then a stay would enter in every single capital case because Barefoot ’s first requirement of “irreparable harm” would always be met.

Here, Beaver asks us to stay both our mandate and his execution, as we have routinely done in the past for others similarly situated. Despite what has been our general confusion, the court is entirely correct to deny the latter as unauthorized by Supreme Court precedent. Indeed, were we to grant the requested stay of execution, this case would be indistinguishable from the stay of execution entered by our court in Bennett v. Angelone, 95-4004, the case here relied upon by Beaver, which was summarily vacated by the Supreme Court only a few days ago on the authority of Tuggle I. See Angelone v. Bennett, — U.S. -, 117 S.Ct. 381, 136 L.Ed.2d 299. Like the order of stay in Bennett, Beaver’s requested stay of execution in the instant ease is, simply, insupportable under Tuggle I.

Now eleven years ago, Gregory Warren Beaver was convicted of capital murder and sentenced to death for the murder of Virginia State Trooper Leo Whitt. On August 22, 1996, we upheld Beaver’s capital murder conviction and death sentence. Beaver v. Thompson, 93 F.3d 1186, 1188 (4th Cir.1996). Not one member of the court requested a poll of the court on whether to rehear the case en banc, and, consequently, on September 19, 1996, Beaver’s petition for rehearing and his petition for rehearing en banc were denied. Beaver thereafter petitioned the court for a stay of mandate for 90 days “in order to prepare a meaningful Petition” for certiorari. Without any discussion or explanation, we granted Beaver’s requested stay of mandate for 30 days under F.R.A.P. 41(b), and the Commonwealth of Virginia subsequently scheduled Beaver’s execution for December 3, 1996 — over 100 days after we upheld Beaver’s conviction and sentence. Not until the late afternoon of October 30, the date that our mandate was to have issued under the extended deadline, did Beaver approach this court with this' successive motion for further delay of mandate and a new motion for stay of execution.

The Supreme Court’s eases “make clear that a Court of Appeals should grant a stay [of execution] (to permit application for a writ of certiorari) only in a special case — a case presenting a significant likelihood of [a] grant [of certiorari ].” Angelone v. Bennett, — U.S. -, 117 S.Ct. 381, 136 L.Ed.2d 299 (Breyer, J., dissenting) (citing Tuggle I, — U.S. -, 116 S.Ct. 4). Obviously, this is not such an extraordinary case.

The Court is all but certain to deny certio-rari on Beaver’s legal claim that our interpretation of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), is in error. The Supreme Court held in Cuyler that,

*983[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.

446 U.S. at 348, 100 S.Ct. at 1718 (emphasis added). In our opinion that Beaver proposes to challenge, we interpret this plain language to require that Beaver show an “actual conflict” and an “adverse- affect.” Beaver, 93 F.3d at 1192. Although the dissenting opinion is susceptible to different interpretations, even the dissent appears to agree that this is the proper standard; as it says, Beaver “need only ‘establish that an actual conflict of interest adversely affected his lawyer’s performance.’ ” 93 F.3d at 1198 (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719).

To the extent that Beaver argues (and the dissent intended to suggest) that no adverse effect on the lawyer’s performance need be shown, that argument is possible only through a selective quotation from the Court’s opinion in Cuyler on which the dissent purported to rely. The dissent and Beaver quote the Court in Cuyler as follows:

Glasser [v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467-468, 86 L.Ed. 680 (1942) ] established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser’s lawyer had an actual conflict of interest, it refused “to indulge in nice calculations as to the amount of prejudice” attributable to the conflict. The conflict itself demonstrated a denial of the “right to have the effective assistance of counsel.”

93 F.3d at 1198 (citation omitted). The very next sentence in the Supreme Court’s opinion, which both the dissent and Beaver omit, however, reads:

Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.

Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-19. From this omitted sentence, it is plain that the Court was not relieving a petitioner of his burden of showing that a conflict adversely affected his lawyer’s performance in some way, see, e.g., 446, U.S. at 349, 100 S.Ct. at 1718-19 (“Since Dukes did not identify an actual lapse in representation, we affirmed the denial of habeas corpus relief.”), but only of any burden of showing that prejudice resulted from that effected performance.

In short, Beaver’s argument, which quite obviously conflates the “adverse effect” and “prejudice” prongs of the inquiry under Cuyler, cannot be reconciled with either the express language of Cuyler or the Court’s other Sixth Amendment ineffective assistance of counsel authorities. Contrary to Judge Hall’s suggestion, no “clarification” of Cuyler is needed.

The subsidiary question of whether Beaver’s counsel’s performance was in fact affected by any conflict is, of course, a routine, highly fact-specific inquiry, and here, at any rate, there is no evidence at all that counsel’s performance was in any way adversely affected. Thus, this question is likewise unworthy (as a predictive matter) of Supreme Court review, its resolution ultimately having little or no impact beyond the facts of this particular case.

For these reasons, I concur in the court’s denial of Beaver’s motion for stay of execution.

Even though, as Judge Hall notes, it is “of little consequence,” I would also deny the motion for an extension of the stay of our mandate. Only several weeks ago, we denied Beaver’s motion for a stay of mandate beyond the 30 days contemplated by F.R.A.P. 41(b), which provides that a “stay [of mandate] cannot exceed 30 days unless the period is extended for cause shown.” Absolutely nothing has changed in the intervening weeks since we denied that motion. There was no “cause” for staying our mandate for the requested time period then, and there is none today.

It seems clear to me that, when all is said and done, Beaver’s counsel is engaged in the rather transparent and oft-repeated effort to delay Beaver’s execution as long as possible through seriatim motions — without regard to the processes of either this court or the Supreme Court.

. Three weeks earlier, without discussion or citation to authority, we had instructed the Attorney General of Virginia not to "seek the setting of an execution date until the Supreme Court has ruled on the petition for writ of certiorari in the initial habeas corpus proceeding.” Stockton v. Murray, No. 94-4000 (Aug. 21, 1995).

. See Letter of Oct. 14, 1996 from the Clerk to Counsel in Nos. 95-4003, Beaver v. Thompson; 95-4016, Payne v. Netherland; 95-4004, Bennett v. Angelone; 94-4013, O'Dell v. Netherland; 94-4005, Tuggle v. Netherland; 96-6, Stewart v. Angelone; 96-5, Matthews v. Evatt.