Breard v. Pruett

used, disproportionate probative that risk is to the found to have been accelerant was an two, away driving seen Harris was Morgan, value of the evidence. See fire mere minutes before the from the scene 945; Queen, Prejudice at 132 F.3d at 995-96. was discovered. under Federal Rule of Evidence 403 cer- is tainly not established from the mere fact that in this case Prior-acts evidence probative. Queen, highly the evidence is particularly relevant because could be Yet, appears 132 F.3d at 994-96. to be chances, recognized by both doctrine underlying the reason the district court’s rul- commentators. That doctrine courts and Indeed, ing. deputy fire marshal or found posits the more often an accidental that occurs, likely it infrequent prior-acts probative incident the more evidence so that he is not subsequent that its reoccurrence is justify believed the evidence was sufficient to Queen, or fortuitous. we noted accidental Harris, bringing against an arson indictment done, an act is assumed to be that “[o]nee objected being subpoenaed and he to testi- ... prior doing of other similar acts is ‘the fy prejudice in this case so as not to reducing possibility that the act useful as investigation criminal of Harris. within innocent intent. question was done prior-acts Because the evidence was cate- purely on the doc argument is based gorically being excluded in this case without chances, repetition it the mere trine of and is examination, subjected necessary to the logical ... that our of instances satisfies ” required. new trial is Queen, (quoting 132 F.3d at 996 demand.’ (Chad § Wigmore Evidence at 245 on Accordingly, judgment we vacate the (footnote omitted)). rev.1979) Simi bourne this case for a the district and remand larly, prior apparent acts of coinci where ordering new trial. Because we are a new similar, repeated reoccurrence dence are trial, we need not address Westfield Insur- increasing relevance an act takes on such assignments ance’s other of error. that is an supрort proposition there AND REMANDED. VACATED § Wigmore absence of accident. See (“Where of an erroneous addi the intent issue, bookkeeper’s accounts is an tion in the

... several other erroneous additions year in the same

bookkeeper’s own favor go to exclude

in the same book of accounts error, explanation and leave of casual BREARD, Angel Francisco expla probable intent as the more deliberate Petitioner-Appellant, nation”). “The doctrine of chances and the

experience us that accident of conduct tell casual; so are rare and and inadvertence PRUETT, Warden, Meck Samuel V. act that the reoccurrence of a similar tends lenburg Center, Correctional persuade explained us it not to be Respondent-Appellee. Wigmore as inadvertent or accidental.” § Rights The Human Committee recognize seemed to The district court Internation American Branch of the found, passing principles it these because Association, Amicus Curiae. al Law evidence, prior-acts propriety No. 96-25. proffered in this was thаt the evidence case “clearly” basis for exclud- relevant. Its sole Appeals, United States Court “prejudicial” it ing the evidence was that was Fourth Circuit. as that term is used in Federal Rule exclusion. Evidence 403 as a basis for Argued 1997. Oct. Rule 403 authorizes the exclu While Decided Jan. prejudice, ground of

sion of evidence on the only risk genuine it so ‍​​​​‌​‌​‌​‌‌​​​​‌‌‌​‌​‌‌​‌‌​‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‍when “there is a does jury ofThe will be excited

that the emotions only then when

to irrational behavior” and Broaddus, apartment, King Gray knocked the door and William ARGUED: heard a noise that sounded like someone was L.L.P., Boothe, McGuire, Woods, Battle & being dragged across the floor. After receiv- VA, Richmond, Donald Rich- Appellant. ing response knocking, King no to his called Attorney Curry, Assistant Gener- ard Senior police. General, Richmond, al, Attorney Office VA, BRIEF: Alexander Appellee. for ON arrived, police they When the entered McGuire, Dorothy Young, Slaughter, apartment key C. Dickie’s with a master H. King provided. Upon apart- L.L.P., Richmond, entering the Boothe, Woods, Battle & ment, police lying found Dickie on the Brace, VA; Virginia Capitаl Rep- Michele J. back, floor. She was on her naked from the VA, Center, Richmond, resentation Resource down, spread. legs waist and her were She Bleieh, Jeffrey Fran- Appellant. L. San for appear bleeding was and did not to be CA, cisco, Amicus for Curiae. breathing. police body The observed fluid pubic thigh. on Dickie’s hair and on her inner WILLIAMS, HAMILTON and Before in Hairs were found clutched her blood- BUTZNER, Judges, Senior Circuit and leg. stained hands and on her left Dickie’s Judge. Circuit underpants body. had been torn from her A telephone receiver located near her head was with blood. covered opinion. Judge by published Affirmed in opinion, wrote the which HAMILTON autopsy An revealed that Dickie sus- had joined. Judge Judge neck; WILLIAMS Senior tained five wounds to the two of stab concurring opinion. Foreign which would have caused her death. BUTZNER wrote a body

hairs found on Dickie’s were deter- microscopic in all char- mined to be identical OPINION samples acteristics to hair taken from Hairs in Breard. found clutched Dickie’s HAMILTON, Judge: Circuit microscоpically hairs hands were Caucasian similar to Dickie’s own head hair and bore jury in Following a trial the Circuit Court they pulled from evidence that had been her Arlington County, Virginia, Angel Fran- head the roots. Semen found on Dickie’s Breard, Argentina both and cisco a citizen of pubic enzyme typing hair matched Breard’s Paraguay, was convicted and sentenced respects, profile in his DNA matched and for the murder of Ruth Dickie. He death profile of the semen found on Dick- the DNA court’s of his appeals now thе district denial body. ie’s petition corpus. See 28 for writ habeas of at- charges was indicted on Breard § 2254. We affirm. U.S.C. tempted rape capital Following murder. trial, charges. jury was convicted of both he I punishment for the jury fixed Breard’s years’ imprisonment attempted rape at ten 1992, February Ruth Dickie resided $100,000 pro- fine. In the bifurcated and a Road, Apartment Fourth alone at North jury aggrava- in ceeding, the heard evidence 3, Arlington County, Virginia. At about capital mitigation of the murder tion and 17, 1992, p.m. February 10:30 or 10:45 upon findings of Breard’s charge. Based Isch, directly the vileness of the apartment dangerousness Ann in an future who lived crime, jury fixed Breard’s sentence Dickie’s, argu- heard Dickie and a man below Breard The trial sentenced death. Isch, loudly According hall. ing jury’s with the verdicts. accordance heard Dickie and arguing continued as she apartment. Almost the man enter Dickie’s appealed his convictions and sen- Breard thereafter, Joseph immediately Isch called Supreme Virginia, tences to the Court person apart- King, the maintenance for the Breard v. Common- that court affirmed. See wealth, 68, 248 Va. 445 S.E.2d complex. Upon arriving at Dickie’s ment Thus, Lindh, 31, 1994, under if a habe- the United States Su- S.Ct. On October 24, 1996, petition April as was filed before petition Breard’s for a preme Court denied pre-AEDPA apply. habeas standards Virginia, Breard v. writ of certiorari. See Moore, See Howard v. 130 L.Ed.2d Cir.1997) banc) (4th (en (“Howard filed his prior habeas in the district court sought state col- May On 26,1996, AED April the effective date of the Arling- Court for lateral relief the Circuit therefore, We, PA. review Howard’s claims filing petition for writ of County by ton (footnote omitted)). pre-AEDPA under law.” 29,1995, corpus. the circuit habeas On June petitions April For habeas filed after January petition. On court dismissed the 1996, then, Chapter provisions apply, Supreme Court of refused Netherland, Murphy see 99- appeal. petition for Breard’s (4th Cir.1997) (applying n. 1 100 & amended relief sought Breard then federal collateral § prisoner 2253 in case where state filed in the District Court for the United States petition federal habeas after the effective by filing peti Virginia Eastern District of AEDPA), Chapter date of the and the 154 30, corpus August on tion for writ of habeas provisions if apply the state satisfies the 27, 1996, 1996. On November the district “opt-in” provisions. court relief. See Breard v. Nether denied petition filed his federal habeas Breard on land, (E.D.Va.1996). F.Supp. 949 1255 On 30, August ‍​​​​‌​‌​‌​‌‌​​​​‌‌‌​‌​‌‌​‌‌​‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‍Accordingly, Chapter 1996. the 24, 1996, timely December Breard filed a Howard, provisions apply. 153 See appeal. April notice of On the dis respect Chaptеr 403-04. to With the 154 granted application trict court Breard’s for a provisions, they the district held that appealability certificate of as to all issues apply did not because the Commonwealth of application. raised his See 28 Virginia satisfy “opt-in” provi did not the 2253; R.App. § P. 22. U.S.C. Fed. sions of the AEDPA. Breard v. Nether land, F.Supp. 949 at 1262. Because the

II Virginia appealed Commonwealth of has not ruling developed this and the is not record on A point, we decline to address whether the The Antiterrorism and Effeсtive Death Virginia’s Commonwealth of mechanism for (“AEDPA”) Penalty Act of Pub.L. No. appointment, compensation, payment the 104-132, (1996), amended, 110 Stat. 1214 litigation expenses of compe reasonable of § among things, other 28 U.S.C. 2244 and “opt-in” provisions tent counsel satisfies the 2253-2255, §§ parts Chapter which are of the of AEDPA. Angelone, the Bennett v. 92 Cf. (4th Cir.) 1336, 1342 provisions govern pro- 153 that (declining habeas to decide AEDPA, ceedings procedures in federal courts. The whether the established the 24,1996, April Virginia which effective of aрpoint became also Commonwealth for the ment, Chapter applicable compensation, payment created a new to of reason against litigation expenses competent proceedings capital habeas a state in able counsel satisfy “opt-in” requirements, Chapter applies, eases. which The new howev- er, provisions applicable would render those to only “opts by establishing if a state in” indigent Virginia prisoners seeking federal appointment certain for the mechanisms capital habeas from if relief sentences an compensation competent counsel. — petition initial U.S.-, state habeas was filed after Murphy, Lindh v. — 1,1992), denied, U.S.-, July cert. (1997), Supreme 138 L.Ed.2d 481 503, 136 However, 107(c) S.Ct. L.Ed.2d 395 AEDPA, § Court held that “opt-in” provisions we are confident explicitly Chapter appli- which made new help are of no to Breard. pending cable to eases on the effective date AEDPA, “negative implica- created a B tion ... provisions chapter thаt the new generally apply only Initially, cases filed after Breard contends that his at-, the Act became effective.” Id. 117 convictions and sentences should be vacated arrest, Arling- ly his because, defaulted federal habeas claim. See at the time of notify Thompson, 731-32, him County failed to Coleman v. authorities ton national, 2546, 2554-55, that, right foreign he had 115 L.Ed.2d 640 as a Argentina or the A procedural the Consulate of default also occurs contact Paraguay pursuant to the Vien- petitioner when a habeas fails to Consulate exhaust Relations, see 21 on Consular na Convention available state remedies and “the court to Virginia 77. The Commonwealth petitioner required U.S.T. which the would be raise his Vienna argues that Breard did not present his claims order to meet the ex- in state court and thus claim requirement haustion would now find remedies. to exhaust available state failed proeedurally claims barred.” Id. at 735 n. Furthermore, Virginia law would because S.Ct. at 2557 n. claim, the Commonwealth now bar this law, Virginia petitiоner Under “a argues proeedurally that Breard has raising any from barred claim a successive purposes claim for of federal defaulted this if the facts as to that claim were that, court held habeas review. The district petitioner either known or available to at the never raised this claim because Preard had original petition.” time of his Hoke v. Neth court, proeedurally claim was in state erland, (4th Cir.) 1354 n. Breard failed to establish defaulted and that — (internal denied, omitted), quotes cert. Sеe Breard v. cause to excuse default. -, 630, U.S. 117 136 548 S.Ct. L.Ed.2d F.Supp. Breard’s 949 Netherlands 8.01-654(B)(2) (“No (1996); § Va.Code Ann. brings in court failure to raise this issue state corpus subjeciendum] writ [of habeas ad shall and play principles into the of exhaustion granted any allegation the be basis the procedural default. petitioner knowledge facts of which had at giving In the state the interest any previous petition.”). filing the time of al opportunity to consider courts first Breard contends that he had no reasonable occurring errors a leged constitutional raising basis for his Vienna Convention claim prisoner’s sentencing, trial a state state and April until 1996when the Fifth Circuit decid state prisoner must exhaust available (5th Johnson, ed Faulder v. 81 F.3d 515 — apply before he can for federal remedies denied, Cir.), U.S.-, 117 cert. S.Ct. Evatt, Matthews v. 105 habeas relief. See case, 487, In that 136 L.Ed.2d 380 — (4th Cir.), denied, 907, cert. F.3d rights the court held that an arrestee’s under -, 102, 57 118 S.Ct. 139 L.Ed.2d U.S. were violated when the Vienna Convention 2254(b). (1997); § 28 To see also U.S.C. to inform the arrestee of Texas officials failed remedies, рetitioner a habeas exhaust state right Consulate. his to contact the Canadian present claim fairly must the substance of his at 520. Breard further maintains that he Id. Matthews, highest to the state’s court. See Convention could not have raised Vienna require at 911. The exhaustion 105 F.3d petition because the claim his state habeas petitioner pres not if the ment is satisfied to advise Commonwealth of failed legal theories or factual claims for ents new rights him the Vienna Conven of his under petition. in his federal hаbeas the first time however, allegations, are inade tion. These proving The burden of that a claim See id. upon quate to that the facts demonstrate petitioner. is exhausted lies with the habeas which Breard bases his Vienna Convention (4th Smith, 991, Mallory 994 v. 27 F.3d See unavailable to him when he filed claim were Cir.1994). petition. his state habeas rejected Murphy, we a state habeas A but related limit on the distinct novelty that the of a petitioner’s contention scope of federal habeas review is doctrine state’s fail- clearly claim and the procedural If a state court Vienna Convention default. petitioner of his expressly its of a habeas ure to advise and bases dismissal rule, consti- Convention could petitioner’s procedural claim on a state under to raise the claim provides an inde tute cause for the failure procedural that rule and In reach- court. pendent adequate ground for the dis state conclusion, missal, noted that a reason- petitioner procеdural- ing this we the habeas has 620 Carrier,

ably diligent attorney ray would have discovered v. applicability (1986); of the Vienna Convention to 2645 see also Murphy, 116 F.3d foreign a national in pre- defendant and that (applying Murray ‍​​​​‌​‌​‌​‌‌​​​​‌‌‌​‌​‌‌​‌‌​‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‍at 100 finding that vious cases claims under the Vienna Conven- petitioner failed establish cause to excuse tion have been raised: claim). the default of his Vienna Convention Convention, above,

The Vienna which is codified For the same reasons discussed at 21 U.S.T. has been in effect since Breard asserts that the factual basis for his reasonably diligent and a search Vienna Convention claim was unavailable to counsel, Murphy's who was retained short him at the time he filed his state habeas ly Murphy’s repre after arrest who and, therefore, he has established Murphy throughout sented the state court But, Murphy, cause. under Breard’s show proceedings, would have revealed exis ing is insufficient allow this to con court (if applicability any) tence and of the Vien clude that factual basis for his Vienna na Convention. Treaties are one of the claim was unavailable. Conse that first sources would be consulted quently, no there is cause for the procedural reasonably diligent representing counsel Accordingly, default. we do not discuss cases, foreign national. Counsel other prejudice. Evatt, issue See Kornahrens v. Murphy’s pro both before and since state (4th Cir.1995) 1350, 1359 (noting F.3d ceedings, apparently had and have had no cause, once court finds the absence of difficulty whatsoever learning Con should prejudice not consider the issue of See, Johnson, e.g., vention. Faulder v. reaching avoid holdings), alternative cert. de (5th Cir.1996); Waldron v. - nied, -, U.S. I.N.S., (2d Cir.1993); L.Ed.2d 673 Zandt, Mami v. Van No. Civ. Finally, unnecessary we find it to address (S.D.N.Y. 9, 1989); May 1989 WL 52308 the issue of abrogated whether the AEDPA Rangel-Gonzales, United States “miscarriage justice” of exception to the (9th 529, 530 Cir.1980); United States procedural default Assuming doctrine. ar- Calderon-Medina, (9th v. 591 F.2d 529 guendo that the AEDPA has not eliminated Cir.1979); Vega-Mejia, United States v. miscarriage justice exception articulat (9th Cir.1979). 752 Murray, 495-96, ed in 477 U.S. at 106 S.Ct. Id. at (miscarriage justice exception Murphy any forecloses argument innocent), available to those actually who are Breard could not have raised his Vienna Con- 333, 350, 112 and Sawyer Whitley, v. vention claim at the time he filed his initial 2514, 2524-25, (1992) S.Ct. 120 L.Ed.2d 269 state May habeas 1995. Accord- (miscarriage justice exception available to ingly, Breard’s Vienna Convention claim actually those are who innocent the death procedurally would be if defaulted he at- i.e., penalty, petitioners those habeas whо tempted to raise it in state at this time. prove by clear convincing that, evidence conclusion, Having reached this only we can error, but for the constitutional no reason address Breard’s defaulted Conven- juror able would petitioner have found the tion claim if “can he demonstrate cause for eligible penalty), for the death no miscar prejudice default and actual as a result of justice riage of occurred here. In no set of alleged law, violation of federal оr dem- circumstances has Breard showing made a onstrate that failure to consider the claim actually that he is innocent of the offense he will result a fundamental miscarriage of committed, Murray, 495-96, see 477 U.S. at justice.” Coleman, 501 U.S. at 2649-50, 106 S.Ct. at or innocent of the death penalty in the juror sense that no reasonable In order to demonstrate “cause” for would eligible have found him for the death default, Breard must penalty, Sawyer, establish “that see 505 U.S. 112 objective some ‍​​​​‌​‌​‌​‌‌​​​​‌‌‌​‌​‌‌​‌‌​‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‍factor external the defense S.Ct. at 2524-25. Accordingly, Breard is impeded counsel’s efforts” to raise the claim entitled to no relief on his Vienna Convention appropriate state court at the time. Mur- claim. Spencer, we are bound Bennett and see

C (4th Angelone, v. Jones also contends that his death Breard Cir.1996) (one panel may of this court not Georgia, violates Furman sentence decision); therefore, panel’s overrule another 33 L.Ed.2d U.S. reject we must Breard’s attack on the consti- (1972), asserting progeny. and its tutionality aggrаvating circumstances (1) claim, given the argues that: given by the instructions trial court. alleged forego offer to the death prosecutor’s plead guilty, the penalty if Breard would Ill constitutional prosecutor violated his obtaining a death sentence by seeking and herein, judg- For the reasons stated upon pleading not Breard insisted once ment the district court is affirmed. (2) guilty; the Commonwealth AFFIRMED. penalty arbitrarily capi imposes the death (3) eases; sentence tal murder his death BUTZNER, Judge, Senior Circuit unconstitutiоnally disproportionate. The concurring: were never first two claims mentioned above I request- concur in the denial of the relief remaining claim raised in state court. by Angel sepa- I ed Francisco Breard. write appeal, only but as a raised on direct was rately emphasize importance claim, appeal from the state law and on Vienna Convention. Virginia Su of state habeas relief the denial procedurally preme found this claim Court Slayton rule of v. Parri

barred under thе I (1974) (hold 27, 205 gan, 215 Va. S.E.2d “friendly The Vienna Convention facilitates properly not raised on direct ing that issues nations, among irrespective relations of their on state collat appeal will not be considered differing systems.” constitutional and social review). Because Breard has not estab eral The Vienna Convention on Consular Rela procedural cause for the obvious de lished tions, opened signature Apr. miscarriage of fault of these claims or that a (ratified by the U.S.T. United States justicе would result our failure to consider 12, 1969). 36, provides: Nov. Article claims, cannot address any one of these we facilitating the exercise 1. With a view to the merits. relating nationals of consular functions sending of the State: D aggrava- Finally, argues that the (b) requests, competent if au- he so by given ting circumstances instructions shall, receiving thorities of the State unconstitutionally vague. This trial court are delay, post without inform the consular procedurally claim is not barred because the if, sending of the State within its сonsu- rejected Supreme of it on Court district, of that is lar a national State appeal. Breard v. Common- direct See prison committed to or to arrested or brief, wealth, In his 445 S.E.2d 675. in custody pending trial or is detained upheld that we have similar Breard concedes any Any manner. communication other Bennett, in of instructions the recent cases post by the to the consular addressed (rejecting vagueness challenge F.3d at 1345 arrested, custody person prison, in or Virginia’s vileness to the of Commonwеalth by the shall also be forwarded detention circumstance), Spencer aggravating and v. delay. The authorities without said said (4th Cir.1993) Murray, 5 F.3d person con- inform the authorities shall the future (rejecting vagueness attack on delay rights under without of cerned Furthermore, aggravator). dangerousness subparagraph; raising this claim on Breard states that he is (c) right shall have the future consular officers appeal only preserve “to this claim for sending a national of the State necessary.” Peti- to visit review shоuld such be See detention, court, custody or prison, who is in panel Br. at a of this tioner’s 37. As doctors, students, unteers, him and as correspond with and teachers and converse pleasure. for business legal representation. travelers and arrange for his seriously safety and are en- right to Their freedom They also have the visit shall if dangered state officials fail to honor the sending any of the State who is national Vienna Convention and other nations follow custody in their prison, or detention in example. their Public officials should bear pursuance judgment. of a district upon mind that “international law is founded Nevertheless, shall re- consular officers mutuality reciprocity....” Hilton v. taking action on behalf frain from 139, 168, Guyot, 159 U.S. custody prison, is in or national who L.Ed. expressly opposes if he such detention action. Department The has advised the State paragraph rights 2. The referred to states, including Virginia, obligation of their be exercised con- of this Article shall foreign rights to inform nationals of their regulations of formity with the laws and under the Convention. It has ad- State, subject proviso, to the receiving vised states to facilitate consular access to however, regulations that the said laws and foreign Prosecutors and defense detainees. given full effect to be to the must enable attorneys rights alike should be aware of the purposes accorded for which treaty responsibil- conferred and their this Article are intended. Id. at under importance ities under it. The of the Vienna cannot be It overstated. shоuld signed

be honored nations that have treaty and all states of this nation. II executing is a self The Vienna Convention

treaty provides rights to individuals rath- —it merely setting obligations out the er than Johnson,

signatories. Faulder v. (5th Cir.1996) (assuming

same). emphasizes right The text that the

consular notice and assistance is the citizen’s. language mandatory unequivocal, The PARAGUAY; Jorge The REPUBLIC OF evidencing signatories’ recognition Prieto, Republic J. Ambassador of the importance persons of consular access for Paraguay States; to the An United Jose by foreign government. detained Santos, tоnio Dos Consul General of the Republic Paraguay to the United provisions of the The Vienna Convention States, Plaintiffs-Appellants, dignity Congress act have the of an binding upon are the states. See Head Mon Cases, 580, 598-99, ey ALLEN, George F. Governor Com 253-54, 28 Supremacy L.Ed. 798 Virginia; Cullen, monwealth of Richard by Clause mandates that conferred Attorney General for the Common treaty be honored the states. United Virginia; Garraghty, wealth of David A. Const, VI, provisions States art. cl. 2. The Warden, Greensville Correctional Facili implemented the Convention should be ‍​​​​‌​‌​‌​‌‌​​​​‌‌‌​‌​‌‌​‌‌​‌​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‍be ty, Jarratt, Virginia; Pruett, Samuel V. they appropriately fore trial can when be Warden, Mecklenburg Correctional Fa addressed. Collateral review is too limited cility, Boydton, Virginia; Paul F. Sheri adequate remedy. to afford an dan, Judge for the Ar Circuit Court of lington County, Virginia; Benjamin

III Kendrick, Judge N.A. for Circuit County; protections Arlington afforded Court of William beyond Newman, Jr., Judge go far Breard’s case. Circuit Arlington County; United States citizens are scattered about Court of William L. missionaries, Winston, Honorable, Judge Corps Peace vol- for the Cir- world —as

Case Details

Case Name: Breard v. Pruett

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 22, 1998

Citation: 134 F.3d 615

Docket Number: 96-25

Court Abbreviation: 4th Cir.