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

903 Ninth, United States v. Automated in First in line with the rule in the state is Laboratories, Inc., Medical 399, 770 F.2d States v. Lebron-Gonza Circuit, United Cir.1985), v. (4th United States 403-04 lez, cert. de 823, (1st Cir.), 831 816 F.2d Valentine, 1413, (9th 135, 783 F.2d 1416 nied, 843, Cir. 98 484 U.S. 108 S.Ct. 1986). Automated significant It Circuit, (1987); in the Second L.Ed.2d 92 Medical, Gouveia, shortly Hoo, decided after did 667, (2d v. F.2d 671 United States 825 decision, not cite or discuss that denied, 1035, Cir.1987), 108 cert. 484 U.S. Medi Automated contrary ruling (1988); 742, L.Ed.2d 777 S.Ct. 98 cal. I not think that a do decision decided Ismaili, States v. Circuit, 828 United Third adversely to a Court decision denied, cert. (3d Cir.1987), 153, 166-68 F.2d given any weight by should us. I think be 935, 108 1110, 271 S.Ct. 99 L.Ed.2d 485 U.S. follow Gouveia majority and the we Circuit, United States (1988); in the Sixth Cir.1986), of the cases which do follow Gouveia. Atisha, 804 F.2d 920, (6th v. 928-29 event, that Gouv- any opinion I am of the denied, rt. 479 U.S. ce is, eia Gouveia guide. should be our If it 955, (1987); Eighth L.Ed.2d 1003 93 reversing gives a second reason for Bliss, States v. Circuit, 735 F.2d United decision below. 294, (8th Cir.1984); in the Tenth Cir 300 Jones, v. cuit, 816 F.2d 1483 United States mag- I would reverse the decision of the Sullivan, 793 Perez v. (10th Cir.1987), 2 n. court, istrate, adopted by the district denied, (10th Cir.), cert. 249, 479 F.2d 259 grounds. both 936, 413, 364 107 93 L.Ed.2d S.Ct. Jenkins, 701 v. and United States (10th Cir.1983), 850, and in the F.2d 854 Benson, v. Circuit, United States

Eleventh Cir.1988), 1338, (11th F.2d 1342-43 846 MEADOWS, Plaintiff-Appellee, David 1487, Caporale, v. F.2d United States dеnied, (11th Cir.1986), cert. 483 U.S. v. (1987). 1021, 3265, L.Ed.2d 763 LEGURSKY, Defendant-Appellant. Carl waffling in the there has been some While ACORD, Sam Blackburn on this of the Seventh Circuit decisions Petitioner-Appellant, Perry, v. issue, 815 F.2d see United States circuit, 1100, (7th Cir.1987), the court relied two later cases which HEDRICK, Respondent-Appellee. Jerry Gouveia, firmly in accord has come down 86-6748, Nos. 87-7628. majority rule. United States with the Appeals, United States (7th Cir.1988); 664,

Fuesting, F.2d Fourth Circuit. Antonino, F.2d United States (7th Cir.1987). seems The Fifth Circuit Argued Dec. issue, on the inconclusive to continue be 1, 1990. Decided June Louisiana, Dickerson v. 7, 1990. As Amended June denied, Cir.), cert. 484 U.S. n. Rehearing In Banc Rehearing and but (1987); L.Ed.2d 378 S.Ct. No. 87-7628 Denied in Carlock, see States United 27, 1990. June denied, cert. (5th Cir.1986), (1987). conclud are said to have Only two circuits is “not prosecutorial misconduct

ed qua non for a process due violation

sine delay.” prosecutorial indictment

from denial of dissent from White’s

Justice States, certiorari Hoo United grant of 1035, 108 are the Fourth These circuits Gen., Gillooly, Deputy Atty.

Thomas J. Charleston, W.Va., defendant-appellant for plaintiff-appellee in No. in No. 86-6748 and 87-7628. Charleston, McHenry, Lynn

Deborah W.Va., plaintiff-appellee in No. 86- for Adler, W.Va., Beckley, for 6748. Lee H. defendant-appellant in No. 87-7628. Gen., Roger Tompkins, Atty. Charles- W. brief, ton, W.Va., defendant-ap- on the for plaintiff-appel- pellant in No. 86-6748 and in No. 87-7628. lee McLaughlin, James A. Law,

University College Morgantown, W.Va., brief, plaintiff-appellee on the No. 86-6748. ERVIN, Judge, and

Before Chief WIDENER, HALL, RUSSELL, CHAPMAN, PHILLIPS, MURNAGHAN, WILKINS, Circuit WILKINSON and Judges, sitting en banc. me, HALL, Judge: just kept telling

K.K. Circuit and I him I didn’t nothing know about it. questions cases raise These consolidated Q. right, All you so didn’t ‍​‌​​​​‌‌‌​​‌​​‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌​​​​​​​​‌‌​​​‌‍tell about the role of federal courts you him that didn’t want to talk about deciding issues of constitutional law on col- it, you got up but when to Atlanta and of state lateral review court convictions. you your brother, all met you didn’t appeals Blackburn Acord from the Sam have a further conversation in which dismissing preju- district court order you him, all you, jointly said that petition brought pursuant dice his to 28 you it, didn’t want to talk to him about pe- U.S.C. David Meadows’ § § your that’s evidence? court, granted tition was the district but A. I don’t Court, sitting banc, recall. this en reversed and remanded with instructions to dismiss the (defense counsel): Mr. File Objection, petition. The United States honor, your I don’t believe there has judgment vacated this Court’s and remand- any been mention any- of Atlanta from ed for reconsideration. We affirm the dis- one. judgment appeal, trict court’s Atlanta, A. We never was in by the reasoning. but on different After reconsid- way. previous judgment in Mead- eration of our I proper The Court: think this is cross- case, judgment we now vacate the ows’ examination. Proceed. the district court and remand with instruc- Trooper Hylton presented as a re- preju- petition tions to dismiss the without buttal witness the State and testified dice for failure to exhaust. Acord, rights after his were read to him, Hylton said he would not talk to about

I—ACORD charges. During prosecutor’s clos- ing argument, he characterized Acord’s In June Acord was tried West post-Miranda “I reaction as don’t want to degree Virginia for first sexual assault and talk about it.” Acord was convicted of During charges. related firearms his sexual assault and sentenced to a 10-20 he was cross-examined as follows: year imprisonment. term of now, Q. Okay, Trooper Hylton, who’s here, seated over is the man who came On direct to the West get you May down to Florida to with Supreme Appeals, argued Acord warrant, wasn’t he? prosecutor’s questions argu- right ment violated his Fifth Amendment Yes, A. sir. court, appeals to remain silent. The state learned, Q. you All he right, when however, disposed fol- of this issue on the you you got there he told what were lowing reasoning: with, charged didn’t he? arrested, appellant When Yes, A. sir. arresting told the officer that he did not Q. through proce- And then he went want to talk about the case. He was reading you your rights, didn’t dure of cross-examined about this statement at he? trial. this line of While cross-examina- Yes, A. sir. tion have been error under well Q. you you And told him weren’t inter- syllabus point 1 of Boyd, State v. this, talking with him ested about (1977), the 233 S.E.2d 710 you? didn’t object point defendant failed to to this anything I A. I told him didn’t know Generally, trial. this not con- Court will it, about which is the truth. ap- the first time on sider error for Q. Oh, you you didn’t tell him didn’t See, Parks, peal. e.g. 161 W.Va. State to talk about it? want 511, 515, (1978). 243 S.E.2d We No, I him I didn’t know see no reason to deviate from this rule just A. told it, asking nothing kept and he this case. about However, “adequacy” Acord, courts. Id. 336 S.Ed.2d Wainwright Sykes (W.Va.1985). component if is satisfied doctrine Virginia court’s denial After the West consistently applied” “regularly bar rehearing, filed a Acord Mississip- court. Johnson v. by the state district court petition in the federal § pi, 486 U.S. alia, of his con- alleging, a violation inter deci- Our review of the right remain silent. stitutional involving Virginia’s contempo- sions Ohio, Doyle v. objection rule convinces us that raneous (1976). The was re- case require- this bar satisfies this recommended magistrate who ferred to and, application conse- ment of consistent rejected on the Doyle claim be “adequate an and inde- questions quently, on cross-ex- constitutes merits because “ upon designed pendent ground” not to draw state which federal amination ‘were silence, expla- meaning may рrecluded. but to elicit an from be ” statement’ prior for a inconsistent nation Thomas, 157 W.Va. Charles, 447 U.S. (quoting Anderson v. (1974), Virginia the West S.E.2d 2180, 2182, “firmly it was committed” court stated that (1980)). adopted the The district court general unobjected-to rule that error denied relief on all report in full and appeal. reviewed on It further will be granted certifi- The district court a claims. “only the court had deviated noted appeals. Acord probable of cause and cate occasions, general on few from [the rule] extraordinary situations.” and then II The extent of such deviation from the Id. of his contends that federal review Acord general rule is the basis of Acord’s conten- by the state claim is not foreclosed Doyle applies tion that its contem- procedural on a bar for two court’s reliance poraneous objection rule in an inconsistent First, argues reasons. distinct manner. applica- inconsistent Virginia courts’ Starr, 158 W.Va. Acord cites State v. procedurаl precludes a find- tion of the bar origin as the 216 S.E.2d ground” “adequate it state ing that is an by plain error rule which may foreclos- upon federal review be recognize errors of con- courts will Second, claims that the State ed. Acord magnitude despite the lack of a stitutional procedural right its to raise the waived contemporaneous objection at trial. This by failing properly raise it default issue The court overstates the breadth Starr. district court.1 We address before the procedural a rule of invoked Starr issues in turn. these to reach an error which court2 order A defendant’s failure to observe assign opening had failed to Starr objection rule state’s objected had in fact brief. His counsel independent “adequate and an be plain at 244. The trial. Id. re ground” that federal habeas bars nothing more than a error rule of Starr is 72, 81, Sykes, Wainwright lief. by appeals court vehicle which the state properly raised in an may reach issues not princi is а “well-established This doctrine appellant’s brief. recognizes that a ple federalism” which Mullins, Acord also cites State proceedings criminal state’s conduct of its (W.Va.1982), example as an federal S.E.2d 173 respect should be accorded alleged point, not set forth upon by ... No error Although the district court not relied claim, afterwards, brief, Doyle dismissing Acord antici- either in pated shall be raised position brief, exten- argument, printed the State's by reply oral or or in procedural default. sively court, briefed the issue of rehearing, but the or on plain option may not as- notice a error IV, Supreme Court Rules 2 of the 2. Rule Section specified. signed or reads follows: recognize a state court’s discussion of the merits of basis for claim does not con- despite procedural default). violation the lack possible Doyle stitute cause for a Thus, showing defense counsel to absent a of cause to excuse closing prosecutor. default, remarks we cannot reach the merits of court, however, appeals Doyle found no alleged Acord’s claim unless the Doyle vio- violation, from the evident lation was so severe that probably it “has opinion whether the State even advanced resulted in the conviction of one who is Moreover, the issue of default. actually innocent....” Id. at very disposed in that the court opinion, S.Ct. at 2649. Our review of the record procedural default two other issues on shows that this is not such an “extraordi- grounds. at 176-77. Id. nary grant- case” which would mandate the ing despite of the writ the absence of cause prior no other cases decided Acord cites Therefore, for the default. Id. to his trial which would indicate inconsist- Acord is not entitled to habeas relief on contemporane- application ent this claim. objection policy, pre-tri- and it is to this ous ruling must period al that we look Muncy,

this issue. Johnson Ill Cir.1987). (4th recognize We also Acord also contends that the State regular application of a that consistent precluded relying from asserted does not procedural state’s default rules bar before this Court because it chose not undeviating adherence to such rule mean procedural proceed to raise the bar rule in exception. admitting Dugger of no See ings magistrate before the and district Adams, court, choosing argue Doyle instead (1989) (despite possi- n. 103 L.Ed.2d 435 points claim on its merits. Acord further exceptions, procedural bar issue ble object magis to the State’s failure to to the highest court applied by Florida’s “[i]n findings adopted trate’s which were in toto cases”). In the majority the vast ab- believe, however, by the district court. We Acord, showing by we sence of a clearer procedural satisfactorily that the bar was court’s declaration of its believe raised as to defeat Acord’s “waiver below afford- “general rule” Thomas be argument. of waiver” Thomas, at 457.3 respeсt. ed 203 S.E.2d therefore, hold, procedural de- that the We Recently held that the state’s this Court posited by fault the state court is an “ade- expressly failure to assert de- ground” upon quate independent during proceedings at the dis- fault habeas pre- federal be habeas trict court level did not constitute “waiv- cluded. er of waiver” when the default by the district court virtue of Sykes announced a was before Wainwright the state prejudice” per- doctrine which the admission into the record of “cause and escape the ef- court’s decision which relied on such a de- petitioners mitted habeas disputed fault to consideration of the procedural default. 433 U.S. bar fect of a 87-91, concedes constitutional claim. Titcomb v. Common- 97 S.Ct. at 2506-09. Acord Va., 782-84 component of the test wealth the “cause” Here, Cir.1989). the state court’s decision not be satisfied a contention could into Doyle appeal in Acord’s was admitted evi- lawyer his trial was unaware Carrier, magistrate, dence before the federal so Murray v. U.S. doctrine. See 2639, 2644-45, argument 478, 486-87, 91 “waiver of waiver” is meritless. sum, (trial reasoning, (1986) although failure to on different counsel’s ever, ap- to the in this that these decisions are irrelevant the initial briefs were filed 3. After contemporaneous supplemental- of the state’s peal, parties directed to status were recogni- ly application” issue in rule at the time of Acord’s brief the “inconsistent exceptions general rule light tion of limited of decisions rendered subsequent was not Appeals does not convince us that the rule believe, consistently applied at the time of Acord’s trial. how- Acord’s trial in June 1983. We issue, the lone dissenter did not discuss the of the district judgment we affirm that our decision Adkins meant noted court. burden-shifting instruction “could at 842 harmless 304 S.E.2d not be error.” IV—MEADOWS dissenting). (Harshbarger, J. convicted West David Meadows was pro petition filed his se habeas Meadows degree murder and first Virginia of pursuant to state circuit appeal. direct upheld on conviction was and, (1981) for the first Code 53-4A-1 § (W.Va. Meadows, 304 S.E.2d time, The the Adkins issue. circuit raised granted by 1983). petition was His § opinion majority’s court construed ground court on the district having as reached the the direct unconstitutionally at trial instruction alibi issue and thus it merits of the Adkins proof on an essential shifted burden and all other claims denied relief this banc, Sitting this en of the crime. element proceeding pro by Meadows. Still raised failure to that Meadows' determined Court peti se, the identical habeas Meadows filed Virginia’s observe Virginia Supreme the West tion with deny habe- objection rule was sufficient appealing the circuit Appeals instead judgment relief, court’s and the district as court inter appeals court’s dismissal. Holland, 831 reversed. Meadows filing attempt to invoke preted the I). (4th Cir.1987) (Meadows jurisdiction in original the court’s judgment vacated and, practice, as is its de corpus matters case for reconsideration and remanded the prеjudice. nied the without Reed, in Harris v. light of its decision Holland, F.Supp. McDaniel v. (S.D.W.Va.1986). then aban — Holland, (1989).4 U.S. Meadows v. 308 attempts recourse in doned all further 1306, 575 —, 103 L.Ed.2d 109 S.Ct. initiated his habeas the state courts and prior con (1989). preceding our The facts petition the district court. He with federal case are exten the sideration of Meadows and the dis again raised the issue Adkins not I and will be sively recited in Meadows magistrate’s agreed trict court the However, amplify must repeated here. we relief recommendation habeas should that pertaining to Meadows’ matters certain granted on the of the constitution be basis issue to of his instruction presentation alibi ally infirm alibi district instruction. of our the focus state courts because finding adopted magistrate’s court also necessarily after re shifted analyses has clearly sub that the alibi was instruction Supreme Court. from the mand appeals the state circuit and mitted to both to the appeal of his conviction direct On alleging meaningful manner “in a courts Appeals, Supreme infirmities.” appropriate claim that the to Meadows failed raise (S.D. Holland, 1:85-0798 v. C/A Meadows unconstitutionally shifted instruction alibi 1986). I, W.Va., 7, In Aug. Meadows we This omission persuasion. burden of exhaustion issue. 831 to reach the declined decision Ad this Court’s after occurred F.2d at 496 n. (4th Bordenkircher, 279 kins denied, Cir.), U.S. cert. V in which we remand from the On unconstitu a similar that instruction held Court, that the state question there is no of its burden tionally relieved state rely procedural a default charge court did not every of a prove element having to claim. respect to Adkins 282. with Meadows’ Id. at beyond a reasonable doubt. during the Renewing argument raised an majority court Although supreme the state clearly expressly judgment states Harris, in the case that a state Court held procedural judgment consideration a state "procedural does not bar that its rests on default habeas either direct or claim on of a federal S.Ct. at 1043. bar." 109 rendering a cоurt unless the last state state court that a the likelihood assess to the State proceeding, habeas federal initial hearing petitioner habeas accord the will fully not ex- did Meadows that contends claim”). his merits failed he because remedies state his haust denial circuit court’s state appeal to failure his VI that counters Meadows a writ. should be order court’s the circuit to Ad that Meadows’ Having decided pro se proceeding he was because excused unexhausted, turn we to is claim kins Alternatively, law. is untrained exhaustion of whether question related state to the petition argues that the State’s light invoked be should princi- exhaustion satisfied court appeals the West that it is clear that contention order was court’s the lower because ples the Adkins claim hold would Virginia court per- We are petition.5 to his attached Reed, Harris See barred. procedurally argument. State’s suaded 9, 103 1038, 1043 n. U.S. non-jurisdictional (1989). The L.Ed.2d prior remedies of stаte Exhaustion flexible indeed doctrine exhaustion is mandat relief habeas federal pursuit in cases exceptions to enough allow (c).6 statute 2254(b), by U.S.C. ed § go back forcing petitioner to exhaust failure a dismissal requires exercise be an obvious would court state remedy is available state effective if an Peoples, Castille futility. See habeas federal filing of the time (1989); to eq adherence Virginia’s petition. Lane, Teague v. of finali in its treatment principles uitable do We tous confident allows matters inty here, case however. to be find this permitted bewill Meadows predict ly exists possibility any If reasonable in the state his habeas refile to its exception may apply court McKenzie, Losh court. circuit rule, federal default (1981). Given bar apply se at the pro proceeding Richardson is futile. exhaustion find that court’s level, circuit state habeas Cir. Turner, ap the Adkins issue to decide failure 1983). by Mead any waiver not due parently Bordenkircher, Adkins In the to failure ows, that and with Cir.1982), presented we were not an apparently was order court’s circuit Meadows, had who, like petitioner review, a habeas appellate state bypass attempt to burden-shifting a similar object to to failed that fur likely it is that are convinced we to also failed had who and alibi trial to still available is state ther the before burden-shifting issue the raise Reed, S.Ct. at Harris Meadows. to response In courts. state Virginia (“[I]n deter concurring) J., (O’Connor, to failed Adkins argument State’s the particular a remedy for mining whether held remedies, this exhaust his ‘available,’ feder the claim constitutional of 28 requirement exhaustion the required, authorized, indeed are courts al be shall court judgment of a State ap- argues that the Although Meadows applicant the appears that it quoted granted unless it claim when the peals court considered available (304 at 839- the remedies has exhausted objected-to instruction State, an raised is either claim there instruction or that 40), of the is clear courts it refus- process trial court's with the disposed dealt corrective State and al to of available absence by rendering instruction offered alibi give another of circumstances existence or the repetitious. it was grounds that rights protect to process ineffective such bur- any indication is there Nowhere den-shifting prisoner. con- aspect the instruction to be deemed (c) applicant shall An majority. by the sidered available the remedies exhausted have meaning State, of this within courts of section, (c) 2254(b) fol- read § 28 U.S.C. 6. Title law right under if has lows: procedure, raise, by any available State cor- of habeas for a writ (b) application An presented. question pursuant custody person in of a pus in behalf 2254(b) assault, U.S.C. was satisfied because “to ted being sexual convicted on the § pursue force Adkins now his claim be- private latter date. At the prosecu- fore the would be but tor, aiding official, who was public at- a futile futility directive.” Id. 282. The post-arrest tacked Acord’s silence. Acord Adkins, demanding exhaustion in how- had peace held his in two interrelated ever, arose from this Court’s view that the (1) ways: he said he did anything not know incorrectly state court had denied a similar (2) about the crime and he said he would and, therefore, claim on the merits re- not talk about it. Both statements indi- course to the state court merely would cated that he would remain silent. That provide that court an opportunity against silence was insulated comment at previous reaffirm its In light error. of our trial holding Ohio, in Doyle v. holding in regarding Adkins the constitu- 49 L.Ed.2d 91 infirmity instruction, tional of the alibi we Boyd, Accord 160 W.Va. say cannot that it would now “empty be an (1977) (Syllabus S.E.2d 710 Point formality” to demand exhaustion Mead- 1: under the Due Process Clause of the ows. possibility We believe a reasonable Constitution, as well as the exists that the state court decide to presumption of right innocence and the reach the merits of Meadows’Adkins claim against therein, self-incrimination embodied despite ‍​‌​​​​‌‌‌​​‌​​‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌​​​​​​​​‌‌​​​‌‍object the failure to at trial. There- prosecutor’s cross-examination of a de- fore, we reverse the order of the district post-arrest silence, fendant about his or a court and remand with instructions to dis- prosecutor’s comment on the same to the miss petition, Meadows’ prejudice, without jury, error). constitutes Despite reversible because of his failure to exhaust state rem- prohibition, prosecu- edies. tor’s message clear to the jury was that

86-6748—REVERSED AND REMAND- post-arrest silence indicated that ED WITH INSTRUCTIONS. story his alibi must be after-the-fact fabrication.1

87-7628—AFFIRMED. Not surprisingly, Acord’s sought counsel MURNAGHAN, Judge, Circuit object questioning to a line of along that dissenting: line, but, precise objection even before a phrased, could judge be the trial interjected both the consolidated cases of Acord that he felt the line inquiry “proper v. Hedrick and Legursky, Meadows v. I am cross-examination,” constrained I my peremptorily stating to dissent. turn attention permissible, first to be adding to Acord v. Hedrick. the decisive “[pjroceed.” command Pursuit of the inquiry unconstitutional line of I continued. The present comedy judge case would a The of er- trial must have seen a contra- except rors for the fact that it is no diction comedy between “I don’t anything know tragedy. tried, but rather a Acord was about the crime” and “I don’t care to from aggrava- June 9 to June for talk.”2 To me there is inconsistency.3 no private prosecutor 408, jury: 1. The said to the ent statements.” Id. at 100 S.Ct. at 2182. boy's testimony, preservation you And that Anderson v. Charles involved he wants not to think, it, nothing no I had to do with didn’t of silence in both non-statements but rather anything know about it and positive fatally so on. When he contradictory assertions with it, reaction, was asked about what was his one another. given rights his on it? I don’t want to talk Sandy gave six-page about it. [the a victim] 284, Wainwright Greenfield, 3.See day. statement the next She told all she knew n. 640 n. it, about but I don’t want to talk about it. (1986) ("we point out that silence does not muteness; Charles, mean it includes the statement In Anderson v. (1980), of a desire to Supreme remain silent as well as of a desire 65 L.Ed.2d 222 the Court "Doyle apply attorney held to remain that does not to silent until an has cross-exami- been consulted”). merely inquires prior nation that into inconsist- the West comply with failure to of the “I to down came non-statements Both rule, objection contemporaneous Virginia silent.”4 to remain choose the court Acord, But at 745. 336 S.E.2d conviction, on di to Acord’s Subsequent “may well have there say that to went on Virginia the West appeal to rect cross-examining Acord on error” been prosecu the issue of the Appeals, of Court to talk he not want did that his statement to right of Acord’- invasion wrongful tor’s Id. case. about the been have shown not was silent remain District Nevertheless, States lawyers the United by the level the trial at asserted — Acord, of District West Northern Acord.5 State representing attempt considering Aсord’s —, Virginia, 336 S.E.2d —, relief, accepted that However, corpus substan was there obtain habeas (W.Va.1985). It it on the merits. that stating authority was the matter before tial West slightest rule, which no more than objection with did so Virgi- issue of an of West by the State on argument token precludes faulty applied argue a the- nia, not be proceeded would which raised at not by the district of an issue federal that raising the merits ory foreclose error of adopt. a plain persuaded regrettably it involves was if defendant See dimension. constitutional infra. name of majority, banc en The of federal indisputably Doyle Sykes, case U.S. Wainwright The of plainness recogniz- The dimension. while L.Ed.2d prosecutor “plain Virginia’s “The in doubt. is not of West error existence ing proscription of the that ignorant today decides either exception, was error” Doyle forth Appeals set inquiry such against Virginia Supreme West 2240, 49 Ohio, discre- authority to “exercise has intentionally set (1976), or few words off a obscurе to toss tion” case, the In either Doyle. way merely to violate announce clarify, out but not do pleasure express her hereby capable of does not are State errors plain which of ukase Brief for affairs.” contemporane- a state at such despite lack being raised a Virginia, not. Such are objection and ous ap- foot” the Chancellor’s “length of Ap- The federal con- comport with does proach however, it, would noted peals procedures. stitutional because the merits matter consider friend, law enforcement when, a local the wife crystal clear point was made 4. That an alibi Acord nephew, who afforded proceeding, the officer's corpus federal the Virginia rape. peti- the time being "the her elsewhere acknowledged that with prosecutor was, she told although with her husband fairly consistent did so She statement tioner's family might think it to be.” purported jury, of what his witness afraid State’s what relаtionship with assessment Her involvement. stark difference of her The prose- long public essentially fact discontinued reflect the been had silence Acord justice see be to objective should occurred. cutor’s the crime before by the retained prosecutor while achieved and corroborated stand took the Acord duty as likely family saw or her victim testimony. fully supportive girlfriend’s former any State means. obtaining conviction place could who no presented witness (1977) Boyd, W.Va. she night on the victim Acord attorney prosecuting “The 3: (Syllabus Point who tes- two witnesses sexually assaulted. the trial position in occupies quasi-judicial masked of the three was one Acord tified that position, keeping this with a criminal case. by State for be rewarded were to attackers partisan, aof the role required to avoid ishe pending fel- cooperation with reduction their fairly convict, deal and must eager to avoiding in their charges, resulted ony whiсh in the participants other well as the as accused incarceration. duty a tone to set prosecutor’s isIt trial. may and and while impartiality, and fairness Chancellor’s] they [the make if should 6. “[A]s case, in so pursue the State’s vigorously measure; an un what ... standard foot the quasi-judicial doing not abandon he must Chancellor be! One this would measure certain law.”). under cloaked he is role with foot, foot, third short long another a ahas foot; thing Chan the same ’tis large indifferent to a appeal focused unsuccessful 5. Acord’s Selden, quoted in John conscience." girl- cellor's testimony former of Acord's on the extent In Wainwright v. Sykes, Supreme Thomas, 1. 640, State v. 157 W.Va. petitioner’s Court held that a failure to (1974): S.E.2d 445 The comply contemporaneous with the state’s Supreme held, despite the defen- objection requirement at trial foreclosed object dant’s failure at corpus by review a federal court of deprived defendant was of a fair trial petitioner’s statе court conviction. Id. incompetent because and unconstitu- 86-87, 2506-07. Because of tionally seized evidence was intro- concerns, procedural federalism the state’s duced. courts when confronted “[A]ll rule “adequate constituted an indepen- with a situation involving the funda- ground” dent state upholding for the state personal rights mental individual, of an conviction, court notwithstanding the fact unassigned errors, have considered if that the conviction allegedly by tainted prejudicial, meritorious and jurisdic- as 81, constitutional error. Id. at 97 S.Ct. at tional, or have noticed them ‘plain Supreme 2503-04. But the Court has also error.' ... rule is fashioned and [T]he procedural held that “a ground is not applied to meet the justice ends of or ‘adequate’ unless the rule is prevent the invasion of or denial of ” ‘strictly regularly followed.’ Hathorn rights.” fundamental 203 S.E.2d at Lovorn, 255, 262-63, 457 U.S. 102 S.Ct. (Hence, 457. the majority’s attempts 2421, 2426, (1982) (in 72 L.Ed.2d 824 con- put forth supportive Thomas as Supreme text of Court’s review of state position me.) its dumbfоunds decision); see also Johnson v. Missis- Starr, 905, State v. 158 W.Va. sippi, 578, 587, 1981, 486 U.S. 108 S.Ct. (1975): S.E.2d 242 “Although it is a 1987, (1988). 100 L.Ed.2d 575 “State policy well-settled courts deciding avoid federal is- Appeals normally will not rule by invoking procedural sues they rules that upon unassigned or imperfectly as- apply do evenhandedly to all similar signed errors, this Court will take Hathorn, 263, claims.” 457 U.S. at cognizance plain error involving a (emphasis added). S.Ct. at 2426 And the right an accused question adequacy of a state’s rule fundamental protected which is by the Constitu- as a bar to constitutional claims Syllabus 4, tion.” Point 216 S.E.2d at is itself a matter of law. Henry v. federal 244. The Mississippi, 564, 379 U.S. 85 S.Ct. conviction, Court reversed 567, Starr’s (1965). de- 13 L.Ed.2d 408 spite his failure properly preserve important need for the vindication of review, because an rights outweighs the federal incriminating post-arrest statement ism paying concerns of deference to indet made Starr was introduced without erminacy. majority’s approach also proper inquiry into its voluntariness. accords ill with the observаtion that “the Id. at 248. Doyle nature of a egregious error is so Warden, 3. Spaulding v. inherently prejudicial so reversal is [that] (1975): exception.” the norm rather than the S.E.2d 619 Al The West Garrison, Virginia Supreme ston v. 720 F.2d Court stated that al- Cir.1983) (quoting legations Williams v. Zahrad of error that do not have a nick, (4th Cir.1980)), cert. jurisdictional “constitutional or basis” denied, were “lost to the defendant his fail- ure to file notice of appeal.” intent to 212 S.E.2d at 621. arbitrary

As for the nature of West Vir- ginia’s application Warden, Jones v. ‍​‌​​​​‌‌‌​​‌​​‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌​​​​​​​​‌‌​​​‌‍161 W.Va. objection requirement, denied, one need exam- cert.

ine following cases: (1978): 58 L.Ed.2d 125

McClintock, Principles Equi- History English (1903-1938). Handbook the Law 467 of of (2d 1948), Holdsworth, ty 50 n. 8 ed. and W. IA

913 4 of v. Point State Syllabus mension ad- Supreme Court Virginia West The omitted). (citations The Id. burden-shifting Starr.” a merits of the dressed state su- two other notwithstanding defen- noted that the court instruction, a objec- Doyle considered proper courts had preme a to make failure dant’s (cit- Id. “[safeguarding “plain trial, error.” because to be violation at tion process factfinding State, 622 P.2d 448 of the integrity ing the Dorman v. con- 73 1981), Lyle, priority over and v. (Alaska must take State court 916. The (1977) (per S.E.2d at 241 629 cu- cerns.” 375 A.2d N.J. trap of a such to resort to “declined riam)). escape last avenue the — procedure, W.Va. —, Barker, 346 v. 8. State legal technician.... rate the third Virginia (1986): The West 344 S.E.2d deprive to utterly nonsensical It seems the defen reversed Supreme Court liberty because man of his innocent an conviction, the lack despite dant’s tri- his object] at lawyer failed [to a at because objection specific J., (Neely, at 917 S.E.2d 241 al. ...” one ele omitted jury instruction concurring). at 349. 346 the crime. S.E.2d ments Bordenkircher, 674 v. Adkins 5. a criminal defendant afford to “Failure denied, 459 Cir.), cert. 279 jury the right to have the fundamental 104 elements on all essential instructed opinion enlightened an (1982): In recog charged has been the offense we Bryan, V. Judge Albert the late plain as error.” Id. nized Virginia’s rejected West — —, Judy, W.Va. v. 9. State and reviewed argument foreclosure Virginia (1988): The West S.E.2d cor petitioner’s habeas of a merits jeop that double held Supreme Court object failure to claim, despite his pus plain error constituted ardy violation After a 282. F.2d at at trial. implications.” constitutional to its “due authorities, Virginia West review error, plain n. 2. As at S.E.2d would State that the concluded we the claim addressed Supreme objection contemporaneous allow defendant fact that despite the chal forestall to rule at trial. objection make an failed lenge. Id. Id. — W.Va. —, 301 Mullins, 6. State — W.Va. —, Moss, 10. State Virginia (1982): West The S.E.2d Virginia (1988): The West S.E.2d very Court, in last “need not that it held Supreme Court prior to subject on the Virginia case com whether [defendant] decide conviction, considered trial objec plied claim of of the defendant’s merits it requirement” “conclude[d] tion lack of despite Doyle violation were statements prosecutor’s trial. at defendant’s invoke the enough ... egregious at 177. S.E.2d at S.E.2d error doctrine.” plain — W.Va. —, Oxier, 7. State 574. (1985): S.E.2d — W.Va. —, Marrs, 11. State prosecu held (1989): Thе West comment cross-examination tor’s error plain invoked Supreme Court based error reversible constituted discrim allegedly an doctrine notwithstanding principle, Doyle per- prosecution’s inatory use prop object failure defendant’s failed the defendant emptories when at 363. 338 S.E.2d trial. erly at 379 S.E.2d trial. object at Virgi other distinguished — —, Hanson, error held that cases nia Virgi (1989): The West 382 S.E.2d ger “More is waived: trial raised the defen reviewed Supreme Court nia involving as case present mane court admit- trial claims dant’s di- of constitutional error does an 914

ted incriminating into evidence state- S.E.2d 445 to demonstrate a regu- ments elicited in violation of the fifth larity application of Virginia’s West despite amendment the fact contemporaneous objection requirement. defendant was deemed to have waived And the citation to that case is misleading. pursuing Virginia below. The West Court was dis- opined, 552. The turbed the admission of certain evidence “We believe this is an appropriate case in Thomas’ in spite trial of his lack of application for [plain objection. doc- 203 S.E.2d at 457. The Thomas error] trine, only because the Fifth court held that it had to waive the state’s protection Amendment against procedural self-in- requirement meet ends of crimination, a constitution- Id. The court justice. substantial thereupon ad- right, affected, al but also because dressed the merits objection. Thomas’ admission these statements had Rather support than the majority's posi- impact jury’s substantial tion, Thomas demonstrates that West Vir- truth-finding function.” S.E.2d at ginia waives contemporaneous objec- requirement tion when the denial of a con- — Stacy, State v. W.Va. —, right deprives stitutional the defendant of (1989): S.E.2d 347 Virginia West a fair trial. applied plain error majority concludes that no cases de- exception to an allegedly review im prior cided to Acord’s trial indicate an in-

proper jury instruction. 384 S.E.2d at consistent application of Virginia’s West 352. The court did so because the contemporaneous objection requirement. error magnitude constitutional Thomas, Starr, Jones, Spaulding, Adkins, and substantially impaired the trial and Mullins Oxier, belie conclusion. truth-finding court’s Id. function. Barker, Moss, Marrs, Judy, Hanson, and case, In Acord’s plain the error was and Stacy, although decided after Acord’s con- egregious fundamentally viction, interfered serve to amplify conclu- truth-finding with the function. That is so sion that one can reach: Virginia has law, as a matter of federal no matter how and does apply plain its exception error inconsistent Virginia Supreme egregious errors of constitutional Appeals defining is in those magnitude, and, terms. indeed, particular even alleged Doyle violations.

The first intimation Virginia that West might objec enforce lacks an adequate ground tion rule even the case of an error of refusing to consider merits magnitude constitutional was State v. Acord’s involving plain case Kopa, (W.Va.1983), S.E.2d 412 error amounting to a miscarriage jus- light first saw the day in a case decided tice. there Because was no regularly fol- more than six months Acord was lowed West rule requiring contem- after tried and convicted. Also poraneous decided after he objection by Acord June and hence not available to was tried convicted, when Acord was the lack counsel were State Hutchin of consistency altogether renders inappro- son, (W.Va.1986); S.E.2d 138 priate application of the rule as a Holland, Cir.1987) (en 831 F.2d 493 under Wainwright Sykes. bar — banc), remanded, vacated and U.S. “A procedural ground is not ‘ade- —, 109 S.Ct. 103 L.Ed.2d 575 quate’ unless the ‘strictly rule is Fisher, (1989); State v. ” 370 S.E.2d 480 or regularly followed.’ Johnson v. Mis- Grubbs, (W.Va.1988); 364 S.E.2d sissippi, 578, 587, U.S. Hatala, (W.Va.1987); State v. (1988) Barr v. (citing (W.Va.1986); S.E.2d 310 Eng ‍​‌​​​​‌‌‌​​‌​​‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌​​​​​​​​‌‌​​​‌‍ State v. City Columbia, 146, 149, land, (W.Va.1988). S.E.2d 548 (1964)); cf. Indeed, majority case, only cites one County Allen, Ulster County v. Thomas, State v. 151 & n.

915 opinion Meadows further to consider (1979); see 777 10, 60 L.Ed.2d n. 2221 & Cir.1987) (en (4th Holland, 493 F.2d F.2d 831 v. 843 Ellingsworth, v. Reynolds also Reed, 489 v. of Harris procedur Cir.) (in light for banc), order (3d 712, 719-21 petition of 308 1038, L.Ed.2d a review 103 to bar 255, requirement al U.S. — be “con must Holland, claim, invocation state’s U.S. v. (1989). Meadows er’s authority”), cert. state other 575 sistent 1306, 103 L.Ed.2d —, — 403, 102 —, S.Ct. 109 denied, U.S. to assume (1989). It is reasonable Lane, 826 v. (1988); Williams 391 L.Ed.2d not opinion was majority Fourth Circuit Cir.1987) (state procedur (7th 654, 659 F.2d satisfactory to respects all federal habeas not bar does requirement al Court. “spo is requirement when corpus review in Mead opinion Wainwright, v. majority The en banc Oliver applied”); radically Wainwright Cir.1986) (“[wjhere (11th on relied Holland had ows v. 1524 spo bar 53 its applies S.Ct. 97 U.S. Sykes, v. 433 entertain may ..., a federal radically to refusal justify to v. writ”) (citing Spencer for instruc jury plainly erroneous consider Cir.1986) (11th 1458, 1470 F.2d Kemp, instructs tion, commencing “The 921, 107 denied, 480 U.S. banc)), cert. (en an proving the burden while jury that (1987). 1380, 94 L.Ed.2d S.Ct. defendant_” in That on the is alibi ne- Doyle violation my judgment, casting burden improper, was struction law by the mandated trial a new cessitates properly whereas the defendant on any by not will That corpus. of habeas doubt, fall reasonable should, beyond a It will freedom. guarantee means Warden, Fulton prosecution.7 upon the conviction, to if there is only insure Cir.1984) (“There (4th 1026, 1031 F.2d constitu- by accomplished one, be will be instructions that both doubt little can be un- conviction proper That means. tional prov burden government’s [shifting as law is of the interpretation proper der are constitu to the defendant] ing presence objective an much denied, 473 U.S. infirm.”), cert. tionally him- defendant it is prosecutors (1985); 3532, 87 L.Ed.2d S.Ct. is done justice when wins self. Bordenkircher, F.2d Adkins argu- abhorrent I find courts. in its denied, Cir.), cert. (4th be Virginia judges ment that (1982); see 119, 74 L.Ed.2d S.Ct. to being able temptation to the exposed Wilbur, Mullaney also basis solely on “nay” or say “yea” 44 L.Ed.2d cog- any expressing they without feel how categories (1975). between difference nizable whether even plain error reasoned majority Circuit Fourth hair-split- such to amenable plain error to the object failed had that Meadows fill- backing and That categorization. ting trial, there- instruction the alibi form of has substantial application ing in the law’s default committing a defects. process due relief.8 corpus preclude operated have not been technically there II While faulty an many words in so we Legursky, Meadows Turning to substantial instruction, there by the directed have been fore does objection rule an relied principally At Meadows denied, challenge), cert. constitutional 853, importance stall defense, critical placing alibi the instructions. correctness years after Mead overruling six occurred That overrule so, majority had do To available tried; it was thus ows contrary a distin- holding to the earlier rely reasonably could who for Meadows counsel V. Judge Albert consisting of panel guished I, in Part outlined Virginia cases as on the Russell, Judge S. Judge Donald Bryan, unpreserved constitutional recognizing supra, Bordenkircher, Sprouse. Adkins M. James "plain error.” be errors (West Virginia’s Cir.) 279, 282 equivalent: request by an mantics in a murder case where conviction instruction that “if the state has failed to was purely obtained on circumstantial evi- prove beyond all reasonable doubt dence and the proof wrongly burden David Meadows was at the assigned scene of the suspect. A defendant may at crime the time of the slaying ... then show “a fundamental miscarriage jus- jury shall find David Meadows not tice” to excuse his comply failure to with a guilty.” Remarkably plainly and errone Reed, technical rule. Harris v. 109 S.Ct. at ously, the State’s to that instruc (citing Carrier, Murray v. grounds tion was sustained on repe 478, 495, 2639, 2649, 106 S.Ct. titiousness of the altogeth (1986)). instruction that Here there emanates an odor contradictorily er and improperly injustice saddled of because Meadows’ conviction the defendant with proof. the burden of flows from an proof incorrect burden of — Meadows, —, v. relieving instruction prosecution of the 831, (1983).9 839-40 proof-beyond-a-reasonable-doubt require- imposed ment by the Constitution—in a carry We must out the Court’s case where all the evidence was circum- mandate and examine holding of Har- stantial. v. as it opinion. ris Reed our earlier affects principally Harris v. Reed holds that a The majority, en rehearing after banc state must clearly express its reliance on following vacation Supreme Court, procedural default for that pre- default to suggests now present- Meadows never clude a federal granting court from habeas ed his constitutional claim to the West Vir- corpus relief. 109 perusal S.Ct. at 1043. A ginia Supreme all, thereby obligat- of the Virginia Supreme West opin- Court’s ing him pursue post-conviction reme- Meadows, ion State v. 304 S.E.2d 831 dies offered State. Although (W.Va.1983), pages especially 839 and majority notes that Meadows did collateral- 840, shows that the court did not ly state its attack court, conviction reliance and, on a bar at all majority faults filing de novo “clearly not fortiori, expressly.” Virginia West Supreme Court of “plain requirement statement” Appeals Harris v. rather appealing than from the was simply Reed not met. prius nisi West court’s denial оf jurisdiction. is no That more than an Avoidance of ambiguity and its difficul- excessively requirement technical that a ties has guiding objective been a of the criminal linger defendant must in prison “adequate independent” requirement finespun while grains of ground wheat are rule. Michigan default foregone to a conclusion. 1032, Long, v. 103 (1983); 77 L.Ed.2d 1201 Harris Because the Virginia Supreme Reed, 109 S.Ct. at 1041-42. Here we Appeals Court of had a “fair opportunity” have a ambiguity classic case of when a to rule on the merits Meadows’ constitu- jury requested by instruction claim, defen- tional obligated should not be dant—an obviously pursue correct one—is re- state collateral relief. The majority buffed, yet the is faulted for defendant focused on what the having argued against precise opposite. Supreme Court of Appeals “considered” in That comes holding down to a that one determining that required Meadows was failed reveal an say intent not to “No” exhaust his claim. Such constriction оf says Playing when one “Yes.” analysis se- is incorrect. The Court should Harshbarger Virgi- Bordenkircker, 9. Justice Sam R. of the West F.Supp. (S.D.W.Va.), dissent, Appeals, nia affirmed, had (4th Cir.1982), difficulty recognizing no denied, the constitutional [853], cert. [459] U.S. error: Also, Adkins held that However, Virginia’s were infirm burden-shifting instructions be- ap former particular cause that proach alibi instruction has to alibi defenses could not be harmless impermissibly Id., been found to shift the F.Supp. burden error. at 399-400. proof to a J., State ex rel. (Harshbarger, defendant. Adkins 304 S.E.2d at 842 dissenting). Diggs rel. ex States 86; United see also supreme court the state on what focus (E.D.Pa.1970) F.Supp. Russell, 320 had that court what “considered,” but remedies when exhausted (petitioner Picard to consider.” “opportunity court for by state dismissed Connor, (3d F.2d 933 Whittlesey aff'd, (1971); jurisdiction), lack Cir. Cir.1972). Court, Circuit words, 1990). other dismissed too, Here, the state court the state “likely” that if was ask juris- petition and denied Meadows’ habeas claim’s alerted be- Meadows’ claim diction entertain General, Attorney v. Daye See nature. con- view, claim had been cause, the in its Cir.1982), cert. de (2d 186, 192 F.2d the by sidered 723, 79 nied, U.S. review. See direct Appeals on Virginia Su (1984). The West L.Ed.2d the 53-4A-l(a) Yet W.Va.Code § alerted clearly was Appeals preme requires explication, majority, without constitutional Meadows’ merits de- court’s the state to exhaust Meadows Harshbar- given Justice claim, particularly exhaust further he cannot that termination majori The ground. on that ger’s dissent claim. merits the holding Circuit a Third holding ignores ty’s Rose with holding is inconsistent majority’s when required not was that exhaustion 102 S.Ct. Lundy, 455 v. the same dissent, much judge’s state the United (1982), in which dissent, demonstrat Harshbarger’s Justice questions that stated Supreme Court States to been alerted had court state ed by deter- resolved should be under § v. See Sullivan claim. merits the comity out- need for the mining whether Cir.1983) (3d 1077, 1083 F.2d Cuyler, relief of federal impairment weighs dissenting judge’s] (“It from is clear [the requiring exhaustion. by result that would due that Sullivan’s ... characterization Requir- 102 S.Ct. 455 U.S. presented, but only not claim was process state appeal a petitioner ing a habeas court.”). by the state considered in case jurisdiction, denial court’s not be re Furthermore, Meadows apparent, sub- to relief right where determi court’s state appeal the quired to in interest prisoner’s impairs the stantially without were courts the state that nation contribu- significantly without speedy relief his claim. merits to hear jurisdiction advanced comity concerns ting to if require exhaustion not does Section state aWhen doctrine. exhaustion relief is state collateral that apparent it is mer- to review jurisdiction denies See petitioner. available not claim, interfer- a constitutional its of Lane, 489 U.S. 2254(b); v. Teague U.S.C. § review federal subsequent caused ence 1068, 103L.Ed.2d 288, -, 109 S.Ct. unsupportable It is insignificant. seems rel. ex States United (1989) (citing state appeal must that Meadows hold F.2d Brantley, v. Williams juris- no had that it determination court’s the Sev Brantley, Cir.1974)). In (7th 1385-86 claim. of his merits entertain diction to petitioner require did not Circuit enth my essayed to demonstrate I have As of his dismissal court’s a state of Acord case consolidated dissent dismissal when post-conviction of a Hedrick, lack pre rule jurisdictional aon was based fact, was, in assuming that objection, of issues post-conviction cluded adequate and as an exist missing, not did direct review. raised been have could failure-to- ground. independent stat Circuit The Seventh F.2d at theory make-a-eontemporaneous-objection need further contribute ed, “We refuse not (1) it was adequate because proce ato requirements delaying and less (2) its consistency and any applied shuttling already often results dure fashion, haphazard in a even application, the state forth between and back prisoners Mead- years after two began any decision before courts federal Holland, trial. ows’ at 1385- Id. reached.” is ever merits J., Cir.1987) (Phillips, dissenting: simply defies rational be “[I]t BAILEY; Curtis; William W. Tom Wen contemporaneous objec lief that if a state Wood, Plaintiffs-Apрellants, dell W. respect tion rule with to constitutional er actually general ror operational had been effect at the time of Adkins’ and Meadows' Marshall; David D. Michael A. trials in respectively, 1977 and Cates, Plaintiffs, existence formally would have been any invoked or at least noted in dictum in published highest decisions’ of the PROPERTIES, INC., J.W.K. Albe t/a Kopa court until was decided in December Farms, Kluge, marle John W. 1983.”). any That rule of waiver must be Defendants-Appellees. “strictly regularly followed,” Hathorn Lovorn, 255, 262-63, No. 89-2318. 2421, 2426, 72 L.Ed.2d 824 Johnson United States Appeals, Mississippi, Fourth Circuit. 1981, 1987, 100 and that such lacking evenhandedness is in West Argued Nov. present to the telling even time is ly demonstrated the Acord v. Hedrick Decided June portion of this dissent.

Ill majority’s distaste allowing or

Acord Meadows the fair trial to which

each constitutionally is entitled has found

expression by setting impossible for them They

tasks. each must show even more

inconsistency than has existed when the regularly

law was consistently an- nounced in both their until after favors trials,

their followed developed and re-

peated inconsistency up present day. must, addition,

Meadows sacrifice a sub- period

stantial of his life to obtain a result ‍​‌​​​​‌‌‌​​‌​​‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌​​​​​​​​‌‌​​​‌‍already plainly favor which man-

dated. And all that ceremonial charade

will not free either. If victorious on habe- corpus, they will still each face a trial to guilt

determine All innocence.

Virginia in either case is entitled to is a fair presumably

trial. The State feels it can yet stage

win but we are not at the Queen

Lewis Carroll’s of Hearts advocated:

“Sentence first —verdict afterwards.”

Accordingly, respectfully I dissent Legursky and in

Meadows Acord v. Hed Judge

rick. Chief as to Ervin Phillips Judge as to both Meadows and join

Acord this dissent.

Case Details

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

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 27, 1990

Citation: 904 F.2d 903

Docket Number: 86-6748, 87-7628

Court Abbreviation: 4th Cir.