David Meadows v. Manfred G. Holland

scope as to potential so extensive Corp. MEADOWS, Plaintiff-Appellee, also HMK pattern); see David constitute Cir.1987) (4th (apply- F.2d 1071 Walsey, single pattern find no ing Zepkin to HOLLAND, Manfred G. long period and in- extending over scheme Defendant-Appellant. aimed cor- predicate acts volving many gain competi- political processes rupting No. 86-6748. advantage). tive Appeals,

United States Court Fourth Circuit. IV 1, Argued June antitrust claim is based Eastern’s copyright in 16, acts of the defendants’ Decided Oct. of confiden appropriation fringement The district information.

tial business type of con to be the held this not aimed, are the antitrust laws at which

duct Corp. Ramo agree. Bunker

and we See Inc., Forms, 713 F.2d Business

United Moreover, Cir.1983). (7th inapposite here because laws are

antitrust compet as a only damage is to Eastern

itor; alleged injury competi no there is id., at market. See in the relevant

1284-85; Corp. v. Pueblo Brunswick

Bowl-O-Mat, Inc., 429 U.S. East 50 L.Ed.2d finding complains

ern district court er

injury competition, no com that there were

roneously believed Eastern market other than

petitors noted that be Chesapeake. The court Chesapeake, there was

fore the creation of Eastern, that if entity, market

only one transpire predicts, there as Eastern

events Chesapeake. entity,

will be one market

Therefore, injury competi there was no the first time now avers for

tion. Eastern competitors who are there are other by Chesapeake’s activities. harmed

also into account these other decline to take

We their existence

alleged cоmpetitors because in the com injury were not averred any way suggested

plaint nor

district court.

AFFIRMED. WINTER,

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

K.K. Circuit Attorney General of the State of Virginia, acting West on behalf of Manfred Holland, Superintendent G. West (“the State”), Penitentiary State an appeals grant- order of the district court ing petition corpus a for a writ of habeas brought pursuant to 28 U.S.C. § Meadows, David a West inmate. granted hearing We an initial en banc matter in definitively, this order to review prior State’s contention that a decision interpreting of this Court West law and relied court in district granting wrongly habeas relief was decid- We ed. now reverse.

I. April 17, 1981, petitioner On Meadows guilty by jury was found in Mercer Coun- ty, Virginia, degree first mur- der girlfriend, former Gloria Darlene disappeared Hairston. Hairston had from evening her home on the of November Her body eventually 1979. discovered January on 1980. She had died as a of multiple gunshot result wounds. presented against The evidence Meadows admittedly at trial circumstantial. Ac- cording to testimony, witness en- Meadows gaged in physical altercation Hair- with place employment ston аt her on Novem- incident, During ber he struck both employee Hairston another whom having with he accused her of affair. He also threatened them with a and allegedly knife stated “I’m Taylor, Deputy B. Atty. Silas Gen. through yet.” you all (Charles Brown, Gen., Atty. Charleston, G. day, ‍​‌‌‌​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌​‌​‌‌‌‌​​‌​​​​‌​‌‌‌‍Later that same Meadows borrowed W.Va., brief) appellant. on blue Caprice Chevrolet from a McLaughlin, Charleston, friend, Audley James Finney. Finney Veronica subse- (Deborah McHenry, Virgi- W. Va. C. quently testified that returned Meadows University Law, College Morgan- nia p.m. her automobile at either 7:20 or 8:20 town, W.Va., brief) appellee. p.m. She further testified watching television between trial and the her home interval remained appeal, p.m. filing 10:30 of his decided the approximately until Bordenkircher, of Adkins v. case F.2d they had testified that witnesses Other (4th Cir.1982). In Adkins we affirmed along parked Hairston’s automobile seen Virgi- grant of habeas relief to a West evening November early in the road petitioner ground nia that an alibi observing a also Witnesses testified given at instruction his trial unconstitution- resembling by Mead- the one borrowed car ally proof shifted the burden of on an es- hеaring and to parked behind Hairston ows element of the the sential crime from state gunshots. scream as as two a woman well signifi- particular to the defendant.2 Of Buckshot, type, her blood Hairston’s appeal, to this held cance we also a from her blouse were glasses, and button was not procedurally habeas relief barred near the two discovered the site where all petitioner’s by object the failure to to the seen. cars were Virginia instruction at because West primari- defense relied Meadows’ at trial a apply contemporaneous objection did not In addition to ly upon an assertion of alibi. jurisdictional rule to a “constitutional or testimony had re- Finney’s that Meadows Adkins, challenge.” 674 F.2d at 282. p.m., the de- by her home 8:20 turned to testi- presented a witness who fense also appeal, On direct Meadows raised five nearby having at a to seen Hairston fied regard to issues with his conviction. Sur- p.m. between 8:40 and 8:55 train station however, prisingly, present any he did not upon also the State’s The defense relied jury objections to the instruction on alibi the inability any precision establish to with upon our decision in Mead- based Adkins. of Hairston’s death. time subsequently was affirmed ows’ conviction by the West State v. presented jury, to the As the case was Meadows, (W.Va.1983). 304 S.E.2d Al- following gave instruc- the trial court dissenting though opinion in Meadows on the issue alibi: jury questioned constitutionality of the jury instructs the that while The Court instruction, there is indication that the proving an alibi is on the burden majority considered the issue which had defendant, on of its affirmative account argued. neither briefed been nor nature, dispense does with the necessity proving the actual state December, 1984, sought Meadows place of the at the presence defendant post-conviction through relief a state habe- when, where, crime and at the time petition corpus filed with the Mercer committed, if from the evidence County petition, Court. In this he Circuit a as to the jury reasonable doubt time, first that the asserted for the a claim place at the presence of the defendant given was un- jury instruction at his trial where, when, at the the offense time Court, The under constitutional. Circuit committed, acquit him.1 they should assumption the claim had the mistaken and, thus, conviction, appeal filed Following his Meadows been addressed direct subject relitigation to under West with the was not an law, petition. In the dismissed the Appeals May, 1982. jury given instructs that where the trial was a The Court The instruction at Meadows’ approved prima of the alibi variant instruction has established facie case and a Virginia Supreme Appeals alibi, Court of upon relies the defendant the defense Alexander, (W.Va.1978). it, State 245 S.E.2d prove is to not be- the burden him response given The instruction was doubt, by preponder- yond a reasonable nor objected request. State defense’s The evidence, evidence, but such ance ground instruction on the that the evidence alibi degree certainty, as will to such a jury question on was insufficient to raise a valid considered, create the whole evidence is when that issue. jury reasonable in the mind and leave guilt the accused. doubt as to Adkins, which was The instruction issue in given at strikingly similar the instruction trial, stated that: dismissal, appealing stayed pending than district court has Rather reso- petition original filed aрpeal. lution of the Virginia Supreme Court of with the West practice Following normal

Appeals. II. regard initial habeas petitions, refusal, grant writ. court refused to appeal, appellant’s principal On conten- however, prejudice to Mead- essentially objec- tions are identical petition right refile the in Circuit ows’ magistrate’s report presented tions to the Court. argues to the district court. The State juncture, given At this Meadows abandoned the alibi instruction at Meadows’ trial pursuing any further effort at state reme- distinguishable from the instruction 5, 1985, petition July On he filed dies. thus, petition- Adkins did render pursuant for habeas relief to 28 U.S.C. fundamentally er’s trial unfair. State raising with the district court § also contends totally that Meadows has not alleged as instructional error one seven post- exhausted available avenues state grounds justifying post-conviction relief. Finally, conviction relief. con- State except All claims of Meadows’ that based petitioner’s tends that object failure to at jury instruction were dismissed. trial to the form of the alibi instruction remaining The claim was referred proсedural pre- amounts a default that report a magistrate for and recommenda- support cludes habeas relief. In tion. contention, argues latter the State that 11, 1986, report July aIn issued on Virginia more recent decisions the West magistrate recommended that relief habeas Appeals Court of demonstrate granted. considering timely After Virginia that our assessment the West State, objections presented by the the dis- contemporaneous objection rule articulated adopted magistrate’s trict court find- in appellant’s Adkins flawed. We find ings. that, The court concluded notwith- argument procedural on the issue of de- standing distinguish the State’s effort to persuasive dispositive.4 fault both at the instruction Meadows’ trial from that Adkins, in at issue both instructions suf- The whereby doctrine a criminal de from fered the same constitutional infirmi- fendant’s failure to a observe state contem ty. rejected The district court by an effort poraneous objection operates as procedural the state to a assert bar “adequate independent ground” default based Meadows’ failure to thаt bars habeas relief ais “well-estab trial, object reasoning Adkins principle lished of federalism.” Wain controlling authority question. on that Fi- Sykes, wright v. 433 U.S. 97 S.Ct. nally, the court found no merit 2497, 2503, (1977). 53 L.Ed.2d 594 More State’s somewhat belated assertion that over, thereby the deference con accorded a Meadows had failed to exhaust available temporaneous objection rule ha federal Accordingly, state remedies.3 the court or- proceedings merely beas than more a dered that the State West either Rather, comity. implicit matter of it is an custody release Meadows from within nine- recognition of procedure the fact ty days retry him. encourages timely which consideration of timely

A appeal to all prosecution this Court was filed issues relevant a criminal by the by State. relief independent ordered has substantial value.5 initially 3. State question conceded that had Our resolution of this renders consid- remaining eration of the State's un- procedure. exhausted his remedies under state contentions necessary. however, argued, subsequently It that West refusal, Virginia Supreme prеju- Court's Wainwright, supra, the Court observed that dice, original petition of his left reme- further when a defendant has been accused of a serious dies available. crime, important it is that: greatest possible To the extent all issues which charge bear on should be determined were, therefore, either have lost defendant if a state does not Obviously, procedures re- file notice of ap- which his failure to intent to not enforce or does alleged Code, 1931, er- peal 58-5-4, quire timely required as rors, of a ha- subsequent consideration as amended. Code 53-4A-1 as Allen, beas under such circumstances the societal claim.” tion. Neither does all issues attendant spect for the State petitioner’s claims 442 U.S. County Court interest 140, 154, federal habeas review to a criminal by entertaining the does not promptly resolving Ulster imply “disre- undermine prosecu- Cty. tutional or jurisdictional magnitude. did not require rigid compliance dural rules ing Reasoning from the obverse of the Spauld- W.Va. [362] amended. See dicta, we concluded that 196 S.E.2d 91. regard Ford to errors of consti- Coiner, with proce- ^[156] 60 L.Ed.2d 777 Although our conсlusion in Adkins was unreasonable, not inherently ex- further pro federal A in a decision amination of West law now con- not require does con ceeding that a state us ambiguous vinces one sentence is, however, sig temporaneous objection from cannot Spaulding bear the weight we The effect is to nificant determination. previously assigned to it. We note concept of finali substantially diminish initially Coiner, supra, that Ford v. cited of the state criminal ty operation controlling authority for the statement is, therefore, justice It a conclu system. in Spaulding, analyzed the issue proce- of lightly or not be reached sion that should dural default under the relevant West Vir- Upon in state support law.6 without clear ginia statute without distinguishing be- reconsideration, now our we conclude that tween constitutional and non-constitutional satisfy did not that analysis in Adkins errors. It is difficult to reconcile a bifur- standard. cated interpretation Spaulding of pro examined the of we issue When unified doctrine articulated in Coiner. Adkins, cedural in we acknowl default More suggested recent case has law even edged Virginia of the no decision West that more decisively application that the of con- Supreme Appeals ren Court of had-been temporaneous objection procedural dispositive” de- “precisely of dered that was in Virginia fault We, West is not dependent at 282. question. 674 F.2d there upon the fore, of the asserted Spaulding dicta from v. nature error. In relied 557, 212 Warden, Kopa, (W.Va.1983), 619 State 311 S.E.2d 412 158 W.Va. S.E.2d (1975), concluded, In the court guide conformity our deliberations. in with our Virginia Adkins, noted decision in Spaulding, treating the West that alibi as an by that trial errors while certain asserted affirmative defense anwas unconstitution- may petitioner have had mer habeas al shift of proof. Significant- the burden of it, they had ly, however, the court also held that the improper only instruction could be chal- jurisdictional or basis constitutional lenged in currently litigation “cases in render the conviction void or which would appeal attack; they where the error has subject prop-

or to collateral been able, contemporaneous-objection is proceeding; this the accused in thе court- and the rule box, surely room, falls within classification. jury judge is in the is on witnesses, 433 U.S. at 97 S.Ct. at 2508. bench, having and the sworn, subpoenaed duly await their turn Ulster, Supreme supra, Court exhaus- testify. Society’s resources have been con- statutory tively examined both the formulation place at that time in order to centrated decide, contemporaneous objection of the New York fallibility, the limits of human within application rule as of rule in well as the that guilt question of of or innocence of one concluding judicial before numerous decisions Any procedural proce- encour- petition by citizens. which barred that a was not 150-54, ages proceedings those be as U.S. 99 the result that dural default. 442 S.Ct. at thoroughly possible is 2221-23. free error as desir- of erly preserved at trial.” 311 S.E.2d consider on direct appeal any at 422 but the most added).7 (emphasis egregious constitutional error unless there govern- stringent rules existence timely has been a objection made at trial. in implied strongly default ing procedural is distinctly It suggest unreasonable to that by deci- buttressed further Kopa compliance with rules of contemporaneous Hutchinson, 342 S.E.2d in State sion objection required in Virginia West declined therein (W.Va.1986). The court appeal petition direct but excusable erro- allegedly appeal on direct consider unpersuaded habeas relief. We are also the ab- on alibi jury instruction neous appellee’s suggestion Kopa stating objection at timely sence of a Hutchinson are reflective that: present state of the law and that scope implicit It is in decisions of this Court procedural default his trial in 1981 Fourth Circuit takes us further permissive was controlled the more ra- go than we have percep- desired to in its tionale Spaulding. Nothing Kopa application our contempora- of the suggests Hutchinson that new law was potential neous rule to errors being Indeed, explicit articulated. magnitude. Recently we statement of the court Hutchinson that refused to address a claimed error in the “the Fourth Circuit takes us further than

cross-examination a criminal defend- ant post-arrest go” clearly related to his we have desired to implies silence. — Aсord, —, State v. any W.Va. alterations in law have S.E.2d ‍​‌‌‌​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌​‌​‌‌‌‌​​‌​​​​‌​‌‌‌‍Although the entirely flowed from our decisions. error have been of constitutional thorough After examination of the de- dimension, Boyd, State v. 160 W.Va. cisions of West — (1977); 233 S.E.2d 710 Oxier, State v. Appeals, are we now convinced that —, W.Va. (1985); 338 S.E.2d 360 Doyle always treated a failure Ohio, U.S. object to trial errors as a default of (1976), L.Ed.2d 91 we did not address the right to assert these errors on direct Acord, issue supra, State v. because inor habeas review. Our contrary deter- object. failure to mination Adkins v. Bordenkircher is 342 S.E.2d at 142-43. The court in Hutch- follows, expressly therefore, overruled.8 It inson further observed that: that the State was entitled to offer the although this may, under Rule 30 procedural conclusive defense of default in of the West Rules of Criminal response to petition Meadows’ habeas un- Procedure, plain notice error in giv- petitioner less could establish both “cause ing of an (in erroneous instruction prejudice” for his conceded failure absence of proper and timely objection trial), object at alibi instruction at trial. Court will ordinarily

recognize plain error under such circum- stаnces, even of magni- constitutional Normally a remand to the district tude, giving where the of the erroneous court for consideration of the issues of instruction did not substantially impair prejudice” “cause and under Wainwright, the truth-finding function of the trial. supra, appropriate junc would be at this Id. at 143. ture. We find that unnecessary, course Hutchinson,

After however. unequivocally there can be absolute- The record dis ly no doubt that will West closes effort that Meadows to estab- admittedly 7. The court’s statement Virgi- made in at least as instructive on the state of retroactivity Spaulding context of a discussion of as rath- nia law the dicta. analysis er contemporaneous than an is, however, objection rule. There ceptual similarity between the two a clear con- emphasize only We that is Adkins overruled proce- issues. Both the extent that it addressed the issue of doctrines deal with the extent of Virginia. a criminal dural default the State West right post-trial rejection burden-shifting defendant's to assert an jury error instructions ex- allegedly during previous pressed committed criminal is therein unaffected our decision proceedings. Certainly today. Kopa is statement in

499 72, 97 433 U.S. Sykes, procedural his “cause” sufficient lish a (1977),that, in the absence of Al unavailing futile. L.Ed.2d would be default by the de- prejudice as an affirm showing of alibi of cause and though the treatment part of accepted point still an consti- fendant, to raise defense a failure ative practice Virginia criminal thereof. a waiver tuted practice challenge to that place, adequate showing In the first ba had a “reasonable clearly have would where, here, of cause is made the Wain- 1, 104 S.Ct. Ross, 468 U.S. Reed v. sis.” Indeed, rule is shown to (1984). wright Sykes our be an L.Ed.2d in Adkins unduly demanding requirement. instruction Here at of the alibi rejection Court au upon Supreme squarely rested the time of the trial the instruction to the by 1979.9 fully established thority that customary prac- jury was consonant with to chal counsel competent failure of Virginia. tice in the trial courts of West in constitutionality of the alibi lenge the Alexander, 161 W.Va. See State v. as a construed in 1981can struction counsel for the de- S.E.2d So petitioner which the decision to tactical reasonably fеndant could have concluded 13, 104 S.Ct. Reed, at 468 U.S. now bound. object for an would not to possibly useless and would have run irritating judge. the risk of the trial Such III. required. a futile is not Perry exercise reasons, conclude we foregoing For (4th Cir.1971). Blackledge, 453 F.2d 856 requirements failure observe is an objection at trial Cessante contemporaneous ipsa ratione cessat lex. When ground” for independent “adequate the case reached the West Su- of West relief in the State habeas denying Court, preme question of the constitu- that there conclude Virginia. We further infirmity tional placing the burden of petition- “cause” shown no valid can be proving the alibi defense on the defendant in this instance. default procedural er’s must, despite the failure of defendant to the order of the reverse Accordingly, we it, nevertheless, raise have been considered granting district court, by the for a dissent specifically cited with instructions and remand petition particularly point relied prejudice. dismissed with petition be proof burden of improperly had been allo- REMANDED AND REVERSED cated to the defendant prosе- instead of the cution. MURNAGHAN, Judge, Circuit instructions were infirm because [T]he dissenting: particular alibi by instruction offered 1981, was 17, Meadows April David On impermissi- Meadows has been found to Virginia guilty by a West found tried and bly proof shift the burden of to a defend- charge murder. degree first jury of ant. was admit- one which given jury Meadows, 831, 842 v. 304 S.E.2d by State as believed majority, as well by the ted J., (W.Va.1983) dissenting). (Harshbarger, since constitutionally insufficient me, to be defend- Wainwright on the placed explaining the burden The rationale v. wrongly it alibi. of respect pre- to the defense question should be Sykes ant is that a the benefit of so that it will receive served However, not raise the did extremely un- It seems full consideration. court, in the trial point Harshbarger, Judge likely to me that brought to do so his failure ruled that has dissenter, expressed himself so would have Wainwright v. of the doctrine play into (1977); Mullaney 2319, Wil v. L.Ed.2d 281 princi- 53 drew in Adkins Our decision 1881, 684, 508 bur, 44 L.Ed.2d Montana, S.Ct. U.S. 95 421 442 v. ples in Sandstrom articulated 358, (1975); Winship, U.S. 90 (1979); 2450, and In re 510, 61 L.Ed.2d 39 99 S.Ct. U.S. (1970). 1068, 197, York, L.Ed.2d 368 97 S.Ct. U.S. v. New Patterson finding guilt upheld of be if jury will subject having ful- cogently on the implications.10 appears to have reasonable set of facts ly apprised himself of however, Here, Indeed, be that this еntire jury. it well been before misunderstanding aon proceeded question case has is not what correct instructions appeal court, of place at the time of but appellate what took be affirmed will (W.Va.1983). S.E.2d 831 reported in 304 an instruction rather would incorrect Meadows, having not done so appeal, On affirmed. jury the trial be nevertheless court, specifically point raised the the trial In the place, second regardless of wheth- refusing erred that “the court er Meadows can show cause and prejudice No. 21 to the give appellant’s Instruction for his object failure to to the alibi instruc- of necessity the state to jury, regarding the tion, Wainwright Sykes v. should apply at prove appellant’s presence the scene because West did require con- beyond crime a reasonable doubt.” temporaneous objections to constitutional If, indeed, Virginia court then the West errors at the time of his trial.11 ap- Sykes to be Wainwright considered say surprising it did not plicable, it is The case of Bordenkircher, Adkins v. so, proceeded to consider on the but instead (4th Cir.1982), 674 F.2d 279 denied, cert. the correctness fallaciousness merits 853, 119, 459 U.S. 103 S.Ct. 74 L.Ed.2d 104 pages At 839 and the alibi instruction. (1982), followed hard on the heels of the 840, on its the matter court considered trial court’s decision the instant case and merits: light day saw before decision appellant's Because we find Instruction in the instant case was handed down. Trial repetitious No. 21 be of his Instruction actually place took in the instant case in 16, prop- No. we hold the trial April less than year one before erly give refused to the instruction. decided, Adkins was making the Adkins Erroneously holding that instruction case pertinent. even more In Adkins v. satisfactory repetitious it because was Bordenkircher, although there had been very another erroneous instruction is below, challenge the court affirmed a from refusing different to consider the cor- grant corpus to a West rectness of the instruction all on petitioner ground on the alibi in grounds point that the waived. struction unconstitutionally shifted the bur point incorrectness the bur- alibi, proof den of the absence of which proof den of on alibi allocation was raised was an crime," essential element of the from considered in the appel- the state to the defendant. See Mullaney Hence, proceed late court. Wilbur, 421 U.S. grounds point and, that the was not raised L.Ed.2d 508 The rationale of the therefore, waived, seems to me a most that, Fourth Circuit decision was in West egregious majority. error Virginia, according to then extant authori opinion, Elsewhere Virgi- ty, a failure to raise a point at trial nia Appeals Court of indicated it significance would not be relying that, on the rule on appeal, a deemed a right waiver of the to raise the Warden, Spaulding Code, 1931, 53-4A-1, 158 W.Va. as amended. Cf. as amend- S.E.2d 624: ed. properly recognized appeal, State this on Despite spe- the case must be reversed for the fact counsel made this obvious Fortner, reason. request, cific both State v. 150 W.Va. 571, 669, Denno, Warden, 148 S.E.2d Spaulding and Jackson v. supra, 11. See v. 212 S.E.2d 368, 1774, U.S. 624: L.Ed.2d impose mandatory duty upon a the trial court While there be merit to some of these errors, to the alleged hear evidence and the determine volun- most of them have no constitu- presence jurisdictional tariness of a confession out of the tional or basis which would ren- jury prior its subject der the attack; to introduction into evi- conviction void to collateral were, therefore, they rule lost to the dence. This of constitutional law is so de- fendant his failure file notice well to of intent established that it calls for little discus- Code, 1931, 58-5-4, required by to as sion. having jurisdiction. lawyer represent Borden subsequently. Adkins v. point 232; kircher, Spaulding v. F.2d at see ing hardly Meadows can faulted for be not Warden, 212 at 621. S.E.2d raising point and should not held be committed waiver when the Fourth show, attempts to

Later, majority as the Appeals, admirably Circuit Court of in an itself ex- Supreme Court Virginia the West argued opinion with the convincingly only disenchantment pressed Bordenkircher, though it had v. later, Adkins year ruled that a failure to raise the appeal. sought do so in the Meadows point at trial have such would not disas that, in a Subsequent opinions indicate consequences. authority trous Such level, trial arising at case now Virginia was then existence in West was Sykes v. would Wainwright doctrine convincingly by Judge relied on Albert point if the a waiver apply to constitute Bryan opinion in his in Adkins v. Borden Hutchinson, raised. State v. were not See kircher, I, one, find I am unable to (W.Va.1986); 138, 142-43 State 342 S.E.2d that he erred.12 conclude State v. Mead (W.Va.1983). 311 S.E.2d Kopa, ows itself so indicates. However, question, there still remains period For the of time after the decision case, West present of whether vital in the there was in Adkins v. Bordenkircher before the indicating Virginia was in the law or that the law merely change court undertook the task of always that a Virginia had been law, of West changing certainly defendants had place have taken be found to waiver would expectation the reasonable that Adkins v. in the court. object failure to apply. Bordenkircher would How is it law, change in the If was a there possible lawyer representing to fault a only Kopa after change occurred State raising for not the Mullaney defendant 15, 1983, and was decided on December point respected at trial when au Wilbur lawyer would not have had to thority, namely, the United States Fourth in 1981. his the trial court raise Appeals, had ruled that it Circuit Court hand, if was the other On necessary that he do so? While was ‍​‌‌‌​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌​‌​‌‌‌‌​​‌​​​​‌​‌‌‌‍not Virginia law had stating that the West lawyers expected are full intelli devote found always that a waiver would be been gence and exhaustive effort to their con to raise place upon taken failure to have defense, they expected are not duct of a court, point in the trial then Adkins v. place Any lawyer achieve miracles. wrongly decided from was Bordenkircher counsel, certainly of Meadows’ after Ad opinion that the first saw very instant decided, until kins v. Bordenkircher conspic- had light day. The court law, changed the West say opportunity to so uously not taken the raising have to excused for not would decided on when v. Meadows was State Mullaney point at the trial. v. Wilbur June practice To rule otherwise would make the respect, I find it incorrect to With all due abound, of law as the method of self- state that Adkins v. Bordenkircher protection, in recital of frivolous non-valid wrong and should be overruled ret- always matters, say for how could counsel what prospectively. Law- rospectively as well as clearly today not the law would always taught yers, including judges, are the law tomorrow? See Ross v. rendered, become respect opinions to look at and (4th Cir.1983), rendered, Reed, by a court 704 F.2d 708-09 especially recently if murder, degree completely on trial for viable man first 12. The does not undertake Therefore, important. Adkins v. Borden- to eradicate the rationale of defense must be “most” Virginia will not kircher. It states that “West giving clearly erroneous instruction appeal any but the most consider on direct egregious. seem me to be “most” Ob- would egregious constitutional error unless there dealing viously it was constitutional error timely objection Is made at trial.” constitutionally rule that the well-established egregious "merely" er- error here ror, prosecution burden of must assume the the error, egregious “more” constitutional every proof essential element of the crime. egregious To a constitutional error? “most” quately preserved in L.Ed.2d the trial court. As aff'd, 468 U.S. to (1984): a case in category, such the third the result cause, majority reached on here would seem If were never counsel novelty correct, obliged аltogether to I raise should not appeal would be be every Time, however, argue conceivable moved to dissent. is a fetched, claim, far in or- matter how no spec- fourth dimension and where in time’s right post-convic- for preserve der to appears may trum case make differ- future, some unforeseen relief very ence. There is the narrow first and Appellate in law. development categories second of cases in the transition already courts are overburdened period Virginia Supreme where the West frivolous cases and conten- meritless and change yet in the law had not been tions, appellate lawyer effective number, announced. The cases are few does not dilute meritorious claims with paucity such but the does defendants Lawyers representing ones. frivolous just to excuse denial them of treat- encouraged appellants should limit be to is Especially ment. that true such a their on at contentions least present case as the one where the defend- legitimately regard- those which be on degree ant was triаl for first murder. debatable____ ed as presented.in To address the issues even a question Since the was novel and since way, narrower majority consider that the counsel had no reasonable basis as- ruled has that there should be remand serting ap- the constitutional claim on to consider prejudice. issues cause and peal, conclude there we was cause majority reasons that in under present for the failure to it on appeal as practice, criminal a constitu- prejudice well as from the instruction challenge tional at level court itself. implicated grounds here clearly would West Virginia After the court an had have had a lawyer reasonable basis.13 The change making nounced the law it representing Meadows was held to have necessary point that counsel raise the challenge bound Meadows his failure to trial, lawyer it is obvious that a could be constitutionality of the alibi instruction However, raising point. faulted for not placing the burden on Meadows. ham- period there is a narrow time involved here. stringing lawyer, and, In category following the first аre cases him, through himself, hardly Adkins v. before the rule Bordenkircher squares opinion with the in Honeycutt v. changed. in Adkins v. Bordenkircher Mahoney, (4th Cir.1983). 698 F.2d 213 I really do majority understand the lawyers mean to say that those would There Mullaney following Wilbur was held to failed perform have their duties through course courts. The district In adequately. category the second are court, by Judge a landmark decision cases even decided before Adkins v. Bor Gignoux, analogous had held that an self- lawyer denkircher. When a is astute placed defense instruction should have enough to foresee what a court of final proof prosecution. burden of In all authority going hold, he is should not be likelihood, lawyer one of states faulted, submit, I does when he so success keep Fourth Circuit should not have fully. is That what Meadows’ counsel of every abreast district decision in court achieved here. However, the United States. the First Cir- Appeals cuit Court of also had affirmed category the third cases are decided Virginia’s highest Judge Gignoux. Mullaney, after Wilbur changed Cir.1973). (1st making Wainwright the law v. F.2d 943 Then trial in Sykes applicable point ade- Honeycutt place, year unless the and a later the took apparently overlooking consistently upheld by 13. The case been stant had Alexander, Appeals Virginia. fact that State 161 W.Va. Court of of West (1978) Therefore, controlling any objection S.E.2d 633 alibi it is clear would given instructions similar to the one in- in the futile. WINTER, Judge, dissenting: Judge Gignoux Chief ruled Supreme Court correct. had both been the First Circuit Judge Murnaghan’s I concur in well-rea- in Ho Circuit majority of the Fourth The dissenting opinion. persuasive soned and I 217, held 698 F.2d Mahoney, neycutt v. conclusively think that he demonstrates the part obligation there was reasoning. I majority’s error in the am raise, under to anticipate and counsel constrained, however, to add some addition- should he a waiver determination risk of my own. al comments so, had not been point which to do fail States Su by the United finally decided I. point have a cer Here we preme Court.14 decided finally raised and tainly not appeal, the state advances several In its Court, with the in Virginia Supreme why judgment of the district reasons strongly pointing did exist all dications that One is that court should be overturned. mаde in Adkins the determination against available state Meadows has not exhausted Consequently, I find it v. Bordenkircher. post-conviction relief. While I avenues of lawyer who perplexing to hold most petitioner properly ex- believe that the decided, or to have represented law,15 Meadows his remedies under state I hausted decided, that he should have held that majority’s failure by am disturbed waiving point. objecting he was by not when it decides to dis- address this issue ruling on the pose of the case state’s compel- the merits was so point contemporaneous objection By doing rule. application of it straightforward ling and so, proper majority derogates from the fault clearly demonstrated would have courts. authority of the state imagine It is hard to of the instruction. making a “tactical deci- lawyer prisoner ordinarily may not A state ob- justified his failure would have sion” which corpus relief from a federal tain habeas point if he had to raise he has exhausted the remedies court unless —indeed it expectation every to him under state law. 28 U.S.C. available —reasonable raise He failed to held valid. would be 2254(b),(c). requirement The exhaustion § justifiably of its then point because presented in federal applies to each claim Therefore, at the hopelessness. perceived Connor, 404 U.S. Picard v. habeas. least, for consideration of very a remand 30 L.Ed.2d 438 92 S.Ct. prejudice” under “cause and the issues of requirement is purpose of the exhaustion called for. Sykes Wainwright the states in the role of to accommodate giving system by the state the federal summary, to the time at which due review and correct opportunity courts tried, he should be allowed Meadows alleged of federal constitutional violations the decision Adkins the benefit of Swenson, 404 U.S. rights. Wilwording v. grant Consequently, the Bordenkircher. 407, 409, L.Ed.2d 418 by the district court corpus of habeas Connor, (1971); supra. Picard v. Alternatively, the case affirmed. should be investigation permit remanded should be Mead- question of whether Ignoring the preju- cause and there existed remedies, of whether exhausted his state ows has dice. important to decide an majority proceeds an im- 1 view that as of state law.

issue must first aрproach. We Judge proper judicial Judge PHILLIPS and because if has been exhaustion decide there dissent. join in this SPROUSE charge, constitutionality Hutchinson, and it tion of the S.E.2d 14. In State Virginia Supreme (W.Va.1986), neglected lawyer to find a con- the West was considered trolling authority, opinion in Adkins v. Bor- of Mercer the Circuit Court Court. Indeed to constitute was held not peti- denkircher. That County Meadows’ state dismissed assistance of counsel. ineffective objec- that Meadows’ because it concluded already decided instruction had tion to the demonstrates, Judge Murnaghan’s dissent As appeal. on direct ques- appeal did raise the in his direct proper temporaneous objection determined in when we have a case rule. If orig- these petitions inal petition- remedies have not been exhaust- failed to the that state exhaust remedies, ed, require us to principles contends, avoid er’s state as the federal state clearly then “any implication improper as to the merits of so it is the majority for interpretation as an of subject” contemporane- a addrеss the merits of the delicate Smith, 53, 404 objection petitions v. U.S. ous issue. If Slayton state law. those were (1971). 174, L.Ed.2d 209 92 S.Ct. 30 exhaustive as decisions on the merits of the Supreme example, petitioner’s claim, the Slayton, for Court the state expressed we had a courts’ criticized us because decision to base dismissal of the petitions of a contemporaneous on the merits sensitive issue of view state’s state administration state courts fol- rule means bar that this is not finding lowing that state remedies against our had available as a defense federal habe- majority’s not been deci- as exhausted. relief. case, of of an issue state law this sion It is well established if a state court resolving plaintiff whether without the ignores procedural default and decides a post-conviction his state reme- exhausted merits, claim on the habeas relief is not dies, give likewise fails due deference to barred due to such default. Caldwell v. principles approach of Such federalism. an 320, 327, Mississippi, 472 U.S. 105 S.Ct. encourages federal other courts reach 2633, 2638, (1985); 86 L.Ed.2d 231 Ulster state out touch issues of law Allen, County 140, 154, Court 442 U.S. regаrd authority due of the 2213, 2223, (1979); 99 S.Ct. 60 L.Ed.2d 777 Indeed, majority opin- the state courts. 327, Muncy, (4 Baker v. 619 F.2d 329 Cir. purported finality ion’s adherence to the of 1980). contemporaneous Because state empty ring criminal convictions has an if objection prohibits federal habeas re- resolving we decide cases without only procedural view if that bar is an ade- whether state remedies have been exhaust- quate independent ground state for the ed. court, decision of state barring the rule derogation authority

This from the of procedural habeas relief due to default is aggravated by state courts is the fact that available where it is clear from the majority’s holding plain case language this cannot opinion the state court’s a finding procedural be reconciled with that the de- default awas reason for fendant his exhausted state remedies. The Michigan decision. Id.16 See Long, majority’s 1032, opinion, light 1040-41, viewed in the 463 3469, U.S. 103 S.Ct. 3476, (no the state’s contention (1983) about non-exhaus- 77 1201 indepen- L.Ed.2d tion, internally is The majori- ground inconsistent. dent state exists where “ade- ty quacy independence concludes that defеndant failed to any possible improper ground raise issue of alibi instruc- state is law not clear from the face appeal, on direct this and that was “a of the opinion”). Because [state court’s] tactical decision to which petitioner independence any procedural ground remaining now bound.” The of ex- avenue the state court’s is not appar- decision through haustion proce- state habeas ent opinions from the four corners of the petitioner pursue dures which did in the West courts which exhausted original petitions to petitioner’s case, the circuit court and state remedies this Appeals. application contemporaneous These re- of the state spective rejected peti- objection proper courts both habeas rule is therefore not here. tions without mention of the state’s con- Id.17 959, Cir.1980), 922, Engle, (6 (9 denied, See also Walker v. 703 1107 F.2d 966 cert. U.S. 101 449 323, 1983); (1980); Watkins, (5 S.Ct. L.Ed.2d Cir. 66 150 Brinlee v. Bell v. 692 999 F.2d Cir. (10 Cir.1979), denied, Crisp, 1982), 839 nom, 608 F.2d cert. Thigpen, cert. denied sub Bell v. 464 737, U.S. 62 L.Ed.2d 733 (1983); U.S. 104 S.Ct. L.Ed.2d (8 Cir.1980), Wyrick, Henson v. 634 F.2d 1080 denied, cert. 450 U.S. plain required 17. A few cases have not state- (1981); Crist, Quigg L.Ed.2d 383 616 F.2d procedural ment state courts of the apply struction. We should not hasten to

II. retroactively. state rule this new case, af- I would merits On the must not overlook that the We basis interpretation correct firm Adkins upholding primacy of federal law regarding the Virginia law in 1981 uncertain against interpretation of a objec- contemporaneous of a requirement procedural firmly bar is established. the rea- error for a constitutional tion to Nonetheless, the majority apply chooses to Due by Judge Murnaghan. advanced sons contemporaneous objection rule as the the Clark, v. error rule of Rose to the harmless urged. The its hold- state has court bases -, 3101, 3109, 92 106 U.S. S.Ct. 478 ing its view that: 460, (1986), on the 474 the effect L.Ed.2d proceeding A in a decision federal habeas justice Adkins of from administration require contempora- does that a state not great. Although this case is not would is, however, objection significant neous one,18 many are in which an there cases The determination. effect is to substan- beyond a reasonable is harmless error the tially concept finality diminish of Reaffirming holding in Adkins doubt. our operation justice the of the criminal state that in this supported the fact also is is, therefore, system. It a conclusion the Su the circuit court nor case neither lightly that should be reached Appeals in West preme Court support Upon clear without state law. rule contemporaneous objection applied its reconsideration, we conclude that now claim, petitioner’s to bar the state analysis satisfy our did not Adkins such rule raising an inference that no thus standard. that trial. Ul applied at the time Meadow’s 497) (Op. majority’s The “standard” —in at 152-54, Court, 442 at 99 County U.S. ster presumption effect a that the state will reaffirming Finally, 2222-23. Ad- at apply contemporaneous objection rule ab- the holding necessary is also because kin’s sent a clear statement the state courts Virginia Supreme later inter Court’s contrary directly the contradicts the — objection contemporaneous ‍​‌‌‌​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌​‌​‌‌‌‌​​‌​​​​‌​‌‌‌‍of the pretation Supreme County Court’s decision in Ulster interpre manifestly applied Allen, case, a stricter supra. v. In that the purpose of frus of that rule New determine tation Court reviewed York law to apply the alibi in- thе courts that state trating regarding federal law whether decision, pre- grounds for their but these cases The victim’s car was observed near her home Michigan Long requires following morning. v. such a date which 29, ruling plain reported on state statement order for a was On November the victim independent adequate day missing. law to constitute Meadows that that car; told a witness Hammock, E.g. grounds. 639 Gruttola he knew the whereabouts of the victim’s nonetheless, (2 Cir.1981). see Klein v. F.2d But participated he in a search Harris, Cir.1981). (2 667 F.2d following day car the victim’s cousin with mentioning Id. at 835. On this fact. against reported Meadows 18. In this case evidence that he had December Meadows circumstantial, presence keys his at the was car. a set of found the Meadows had key The original scene of the crime was the issue. set that the car that been the repetition: belonged evidence bears to the victim. Id. at 835-36. defense at that was at was he Hairston, murder victim with whom Ms. Finney watching tele- the home of Veronica involved, romantically killed was was Meadows Finney vision when the murder occurred. Ms. 28, 1979, evening but the of November to her that had returned testified Meadows dispute. some time of her death was a fact of stayed p.m. under home at 7:20 or 8:20 Meadows, 304 S.E.2d at 837. Witnesses State night Id. at 837. 10:30 on the the murder. Meadows had identified automobile which at the witness testified that Meadows was No being parked the scene of the borrowed as at crime, weapon was day, scene of the the murder evening. murder on that Id. Earlier judge appeal, from On one fight never found. direct victim. had a the murder Appeals Court of of West that several Id. at 834. evidence indicated murder, this circum- from the conclusion that returned dissented after the murderer hours prove that victim’s stantial evidence sufficient scene of the crime and used the at crime. Id. transport body Meadows was at scene of the her to a secluded location car to J., (Harshbarger, dissenting.) body at was later found. Id. 841-42 where objection contemporaneous rule in cases contemporaneous rule. Even level After if I majori- error. deter- assume the correctness of constitutional York con- mining ty’s interpretation Virginia’s that “New clear of West con- policy rule, temporaneous-objection applies temporaneous objection plain error of case,” unanimously con- magnitude the Court giving constitutional in the of a petitioner’s charge subject cluded jury giv- to review if the argument properly ing before Court. of an substantially impairs instruction 149-50, 168, S.Ct. at 2220- truth-finding U.S. at function the trial. Hutchinson, 2230. The here concludes that State 342 S.E.2d body a similar unclear state (W.Va.1986). mind, law existed myTo the error in this Adkins, at time of decision in find- our substantially impaired case the truth-find- ing inherently that Adkins was “not unrea- ing function of the trial as a matter law, sonable” and that case law on the sub- federal because tenuous basis But, ject 497) ambiguous. (Op. first-degree for Meadows’ conviction of law, despite the fact that like Chapman murder. California, Cf. Court, York in County New law Ulster 824, 826, U.S. 17 L.Ed.2d according had the majority’s (1967)(“Whether to view no 705 a conviction for crime contemporaneous-objection policy, clear the should stand when State has failed to majority nevertheless concludes that will it constitutionally accord guaranteed federal apply contemporaneous objection rule to rights is every bit as of much a federal petitioner’s bar the constitutional claim. question particular as what federal consti- provisions mean”). tutional themselves primacy in of federal law cases such Thus, accepting even majority’s hold- as this was also in considered Walker v. I ing, would still remand case to the There, Engle, F.2d 966-67. district court consider to whether the alibi Circuit, Sixth relying on the Court’s deci- instruction, case, on the facts of this was Court, sion in County rejected ap- Ulster plain error. plication of contemporaneous a state objec- application rule where of the rule “had I summary, majori- from dissent no foundation in the or record state law.” ty’s principal holding. I dissent from holding The court’s was limited to the nar- failure to decide whether Meadows ex- row situation before it: remedies, I hausted state and from dissent holding We do this sanction blan- the failure to remand the case to determine

ket federal court proce- review of state plain if there proceedings was error in the rulings, dural rather the rule is to ensure resulting in Meadows' conviction. that the state courts do not block federal vindication of federal constitutional Judge PHILLIPS, Judge rights by procedural rulings that no have MURNAGHAN, Judge and SPROUSE in

basis state law. say me they join authorize to in AId. similar set of facts exists in this expression my of views. case application because of the uneven PHILLIPS, dissenting: Judge, Circuit Virginia’s discretion in consid-

ering fully agree I dissenting opinions constitutional errors for with which objection Judge Judge Chief Winter and Murna- made.

ghan, express to separately write some III. process added concerns about the used majority reach decision here. aspect The other of the case which war- failure, rants majority’s opinions comment is the dissenting Judge of Chief assigning any therefor, Judge Murnaghan convincingly reason Winter remand this case consideration of demonstrate that its zeal to overrule our whether the Adkins, instruction in panel thereby giving this case decision in plain error majority’s conception Virginia’s under the retroactive effect to West belat- Virginia’s of West contempora- current formulation ed of an announcement earlier rule, simply it defies belief if a objеction majority had rational neous prin- critical disregard contemporaneous objection or violate several state rule with governing federal collateral review ciples respect actually to constitutional error had state court convictions. general been in operational effect at the Adkins’ time of and Meadows’trials in 1977 finessing by simply Specifically, 1981, respectively, its existence would argument, exhaustion state’s necessity dealing formally invoked or at least has avoided the had indeed published awkward fact that Meadows noted in dictum decisions his state remedies exhausted highest Kopa state court until doing so the state courts had the course of decided December 1983. merits, independent not on rejected that, in effect holds as matter of Ulster grounds, procedural his burden-shift- state law, ambiguities clarity federal or lack of if, argument. Even ing point statutory on and decision- holds, then had majority now the state al law to be resolved in federal are favor of rule, it contemporaneous either seeking petitioners avoid bar it, silentio, forgot waived it sub about procedural default. The narrow federal the asserted error as one consti- treated question dispositively decided in Adkins potentially egre- so dimensions tutional appeared was therefore that state law under an ex- gious that it was reviewable absolutely require at the time not con- majority apparently which the now ception temporaneous objection to constitutional reason, still exists. Whatever concedes holding, error. To overrule that narrow failures Meadows’ di- the state courts’ supported by presumption, Ulster’s should proceedings post-conviction rect require more than later state court deci- argument on an reject to which, citing any sions deci- earlier procedural ground pre- independent state cludes, demonstrating principle, clearly on our invocation sions that such a settled way existed, to procedural default as a avoid simply opine of it did. then his review of claim on merits. collateral Judge Bryan’s perfectly reading accurate unclear of state law сould then state basis, cannot, any principled on live We disregarding im- by be overruled invoking a of state such means court portant principle of Ulster. against peti- defaults habeas procedural tioners. recapitulated points I the critical principle that falls

Another settled victim dissenting opinions in of already made is, to majority’s rush undo Adkins as Judge Judge Murnaghan to Winter and out, Judge points that of Winter Ulster emphasize dangerous precedential path Allen, County 442 U.S. reaching in its deci- by taken (1979), L.Ed.2d which only directly af- sion. While the decision that federal habeas courts should directs majori- single petitioner, fects habeas against for the rather than exist- presume ty opinion’s procedural of de- treatment contemporaneous objection ence of state implications principles fault has far wider evidence of their existence rules where the corpus cir- jurisprudence this (or at the application) consistent crit- (unless, problem by felt cuit the immediate is time unclear state law. That ical having to, the dis- one state been attended writing Bryan, for the exаctly Judge what regard now in principle in this case is properly did. panel unanimous Adkins disregarded). turn to be yielding to the state’s majority, But the disturbing that in Particularly fact to find a arguments, purported has now importuning to re- yielding to the state’s perceived panel— clarity by the Adkins barrier to the lieve limited it Adkins’ retrospective solely pronounce- in later default, major- procedural invocation unsupported by by state court ments broadly ity reached much more has out As contemporary clear evidence. decide shown, necessary to persuasively than have been Judge Murnaghan has proce- appeal, seizing upon the unusual this hearing GOAD, initial en banc order Wiley

dure Plaintiff/Appellee, procedure banc as so. Use the en do specific of first-instance reexami- means Goad, Plaintiff, Nomia existing precedent circuit nation or intercircuit which no intracircuit conflict dangerous has developed impli- its own CORPORATION; Eagle-Pich CELOTEX cations, I this opportunity take Industries, Inc.; Owens-Corning er Fi record that all the dissenters in this case berglass Corporation; Corpora Kеene against convening an en banc

voted court tion; Inc.; Company, H.K. Porter Fi specifically overruling consider Adkins. Corporation, Defendant/Ap breboard pellant, that, Judge

Finally, emphasis it bears alluding has intimated Winter possibility, harmless error and as the dis- Corporation; Johns Manville Sales Arm determined, necessarily trict the sub- strong Company; Corpora Cork GAF by stantive claim here at issue is no means tion; Industries, Inc.; Unarco Pitts significant an insubstantial one. There is a burgh Corning Corporation; Owens-Il using possibility deliberately this case linois, Inc.; Insulations, Forty-Eight Adkins, overruling as the vehicle there- Inc.; Corporation; Mundet Cork allowing incidentally almost denial Inc.; Company, Crown Cork & Seal petition procedural default Raybestos-Manhattan, Inc., Defendant. grounds, process forgives a due violation No. 86-3540. prejudicially finding affected the fact Appeals, United States Court of petitioner’s function in this state trial. Fourth Circuit. so, principle If more than has fallen to Argued Jan. extraordinary effort the court to belatedly recognized

relieve Decided Oct. problem in the administration of its crimi- ‍​‌‌‌​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‌‌​‌​‌‌‌‌​​‌​​​​‌​‌‌‌‍justice system. nal procedure

I therefore dissent both to the which the enabled itself

overrule overruling. Adkins and to the WINTER, Judge Judge

Chief

MURNAGHAN, Judge SPROUSE say they join

authorize me to expression my views.

Case Details

Case Name: David Meadows v. Manfred G. Holland

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 16, 1987

Citation: 831 F.2d 493

Docket Number: 86-6748

Court Abbreviation: 4th Cir.