*2
dismissed
the proce-
anew
claim for
RUSSELL,
Before
MURNAGHAN
dural default under state
SPROUSE,
statutory
Judges.
Circuit
law.
later,
Some five or six
months
RUSSELL,
Judge:
Circuit
petition
lant filed his federal habeas
herein, Virginia
appellant
prisoner,
The
a
is the subject
appeal stating
of this
sub-
appeals the denial of
relief
habeas
from his
stantially
grounds
the same
for relief as he
rape
sodomy
appeal
convictions. This
had set forth in
petition.
his second State
disposition
prior
follows the
in
State
two
Court,
The District
in
opinion
an
reviewed
petitions for
relief. The first of
stated,
all the claims
analysis
and after an
petitions
these
basically
State
raised
record,
of the
dismissed all of them on the
representation
by ap
claim ineffective
merits. On the
pellant’s retained counsel.
hear
“[A]fter
referring
after first
to the decision of the
ing
plenary hearing
at a
in
evidence
Virginia Supreme
dismissing
proceeding,”
the Circuit Court denied
claim “on the
that ‘no writ shall be
ap
the writ. That denial was affirmed on
granted
any allegation
on the basis of
peal by
Virginia
Appeals
in a
facts of
had knowl-
decision,
reported
Wyant,
Titcomb v.
Va.
edge
filing any previous
at the time of
(1985).
App.
appel
infirmity since the decision
the United
Mot
Court Murch v.
Supreme
States
I.
tram,
71, 73,
Supreme Court dismissed
(1972). Moreover, Virginia
ap-
Brady first asserted
*3
re
habeas
courts
actions have
federal
in his second habeas
action because
pellant
of
peatedly upheld decisions
of Section 8.01-
appellant’s violation
of the
dismissing such
for
courts’
actions
(1950,
amended).2
654.B.2,
as
Virginia Code
resulting
procedural
from a viola
default
in its
Virginia Supreme Court
order
The
Baker,
tion of this state statute. Smith v.
dismissal said:
(E.D.Va.1985);
1075,
F.Supp.
624
1077-8
whereof, the Court is of
On consideration
Mitchell,
137,
Grooms v.
F.Supp.
500
139-
corpus
the writ of habeas
opinion that
(E.D.Va.1980).
in a
40
And where a claim
grounds that
issue on
no writ
should not
petition has
denied relief at the
state
any
granted
be
the basis
shall
under a
state level
petition-
allegation
facts of
which
procedure
state statute or
state
established
knowledge
filing
at
er had
the time
such
it is well
as
statute involved
petition.
any
previous
Code
any
that
such
forecloses
settled
denial
It
8.01-654.B.2.
is therefore ordered
§
to habeas relief in a
right
subsequent
fed
petition
that
dismissed and
said
be
asserting
eral action
such claim as a basis
recover of the
Commonwealth
relief,
showing
absent a
cause
unpaid
fees and costs in
all
Sykes, 433 U.S.
Wainwright v.
prejudice.
are
taxed
this case
to be
72, 90,
2497, 2508, 53
594
97 S.Ct.
L.Ed.2d
clerk.
Isaac,
129,
Engle v.
(1977);
107,
456 U.S.
appellant
his proce-
The
does not contest
(1982);
102
L.Ed.2d 783
S.Ct.
71
Nor
dural default under
statute.
Carrier,
Murray v.
477 U.S.
478,
106 S.Ct.
the undisputed
he
do
under
2644-46,
well
so
record.
2639,
(1986);
Con
91
397
L.Ed.2d
action, he
In his first habeas
Mitchell,
had not
quest
1053,
(4th
v.
F.2d
1056
618
charged a Brady violation.
Smith,
the Cir.1980);
v.
Lindsey
peti-
Cir.1987);
he later in his
Ris
1137, 1142-43 (11th
facts
second
Allen v.
ley,
v.
already
68,
(9th Cir.1987);
tion based his
claim were
Cook
F.2d
817
69
Foltz,
1109,
(6th Cir.1987),
him at the
available to
time
filed this
F.2d
1111
814
— U.S. -,
denied,
119,
cert.
action. Those facts were made known to
report
(1987);
Cuevas
pre-sentence
him when the
was filed.
98
77
L.Ed.2d
Henderson,
586,
(2d Cir.1986),
report
That
801
589
included
undisclosed
F.2d
denied,
cert.
investigation,
its
480
107
State Police
account
U.S.
S.Ct.
Wainwright,
prosecutrix’s
(1987);
Smith v.
of the
statement
to the inves-
stitutional Section 8.01-654.B.2. waived even provides disposition. applications 2. The habeas statute that a and their No writ petition corpus granted allegation for habeas any shall be on the basis allegations knowledge shall contain all the facts of which the facts of which at filing any previous are the time filing petition. known the time of previous petition and such shall enumerate all pleading, subsequent proce- in a to claim Agri. Ass’n, Services Inc. v. Ferry-Morse appellant’s dural default as a defense to Co., Seed thereby federal habeas claim and is fore- 1977); Feeders, Norris v. Inc., Bovina relying closed from on that defense (5th Cir.1974). F.2d pled initially, had it been would have abso- What, reality, requests lutely appellant’s right barred to federal this Court to do in this case is to disregard relief, being habeas there no “cause and the undisputed evidence in the record of a prejudice” appellant. claim the It relies holding by the State relying on a on the recent decision in Granberry v. statute, valid State that his plea Greer, forever barred from relief by reason of a (1987) authority for this plain admitted default on position. We do not construe Granberry and, his even providing record both any support in the District Court tention. and here established *4 holding this by Court, the State to declare In Granberry, which awas non-exhaus conclusively give that we will no effect to not, tion case and procedural a the State Court decision because the State defense, default not raised had not expressly pled in pleading its first in non-exhaustion the District Court procedural District Court default, proceedings only and had though even the evidence pro of the State plea such for the first in appellant’s time cedural default bar had Appeals. proved to the been and this case, hand, on was procedur the other while the before the District reaching Court in al pled default defense had not by been its decision though, 15(b) and even by Rule State in its initial motion to dismiss it that properly defense was before the Dis appear would that it did raise it in its Court, trict expressly pled whether or not. response, not, second and if it did the issue Moreover, in Granberry, Supreme clearly put in was issue the admission of quoted approval Court from Rose v. Virginia Supreme Court decision as a Lundy, 515-16, part of the in record the case. The basis 1198, 1201-02,71 (1982), for the defense was the order of Virgi in turn quoted Hawk, from Ex Parte Supreme dismissing nia finally appel 88 L.Ed. Brady procedural lant’s claim for “ default. (1944), comity that was principle ‘a That order was conclusive on the issue. As controlling corpus petitions all habeas to said, we have it was admitted as a courts, the federal that those courts will in record the District Court and it was interfere justice with the administration of before the District Court when it reached in the state courts in rare cases where its decision. Under such circumstances exceptional peculiar circumstances of ur when the evidence necessary to establish ” gency are shown to exist.’ if Even we procedural defense is in the record assume, contrary were to undisputed to the objection, without and when that defense is case, procedural facts overriding case, issue in the conclusive pled defense had neither proven, been nor against claim, the issue so es it would seem to be a violation of those respects tablished is “to be treated in all “comity rules of and federalism” were we if pleadings” been raised and [it] disregard to decision of the while the tidy way to handle the matter Supreme proceed dispose Court and to would a motion plead to conform the merits, knowing claim on the ings evidence, to the “failure so to do does well, full undisputed as we do on the record not affect the result of the trial of [this us, before that the assertion of such Brady 15(b), Fed.R.Civ.P.; Rule see also issue].” claim appellant’s proce was barred Corsica Livestock Sales v. Sumitomo Cal., dural default as found Su Bank 1983); preme Carlyle Court in a decision Dept. v. United States included (6th Cir.1982); the Army, 674 F.2d record before us. the District Court should have dismissed it is not relevant might We add— Sykes, is not a non-exhaus- appeal, default under to this default case—that cluding unnecessary tion a that it was both unmistakably that said Granberry ‘‘[t]he to that Court and for us review required to dismiss appellate court is accordingly merits. affirm the We notwithstanding the for non-exhaustion District Court’s dismissal of it, the Court of to raise State’s failure claim for default. obligated regard to Appeals is not AFFIRMED. waiver of as an absolute State’s omission obligation but the the claim” awith non-ex- MURNAGHAN, Judge,
late court when confronted Circuit claim not raised the District haustion concurring: inter- is to “determine Rome, I concur. Since all roads lead comity will be better ests and federalism the Brady is so because forthwith, addressing the merits served claim, merits, addressed on the fails when series additional state by requiring that, probability “a reasonable establish proceedings re- court district had the evidence been disclosed the de- viewing the merits fense, proceeding the result would 1675.3 As- claim.” S.Ct. different.” States v. United pure suming non-exhaustion that this was Bagley, 473 U.S. not, obedient to Granber- It would be claim on the merits ry, consider I affirm those dis- *5 addressing question “the
before Brady claim on the merits. missal comity and federalism would be better by considering “the merits procedural approach served” forth- As for to the requiring a series of additional with or Brady disposition of it on proceedings” state and district court grounds adopted majority has as which the reviewing the claim on the merits. As we merely punishing is rationale a device for observed, already have should test be procedurally party, defective for rea- context, can applied in this there be no comity among Tit- sons of others. Had question comity and federalism would merit, Brady point only comb’s weigh overwhelmingly favor of dismis- procedurally, Titcomb defaulted a de- sal. functioning sire for efficient and effective outweighed of the courts have would
The dismissal of point of sideration a meritorious in the petition herein affirmed for the reasons is Here, however, single parties case. both in its assigned by opin- District Court ion, procedurally disposition have been defective in not except for that Court’s raising they If appellant’s Brady claim which we hold issues have raised.1 Indeed, significant 3. difference be- motion to dismiss." the Com- [second] There another Granberry. Wainwright tween this case and Lack exhaus- monwealth did raise the defense in dismiss, Granberry tion did not until the case only surface its second motion to but case, Appeals; reached the in this Court jury respect cion, to the claims coer- proceedings in the state testimony perjured and after discovered appeared precludes federal habeas relief evidence. recognized precluding relief and was Reluctantly acknowledging that the Common- in the State Court District Court. The record may Wainwright failed to wealth assert was before the Court when it considered District defense before the District Court as to the claim, As and decided this case. the District Court majority attempts to amend the said, plainly be- the state record demonstrated pleadings of Commonwealth to correct the yond any doubt in this case oversight. majority heavily relies on the precluded maintaining was his ha- from federal Virginia Supreme fact that decision beas relief. declaring default bar as brief, petitioner’s Brady claim before the Dis- was 1. In its own the Commonwealth conceded Thus, proceeded Court as of the record. mer- trict [to] that "the court [district] "pleadings” Court should be amended its issue District of that because [the claim] bar its to conform the evidence under Fed.R.Civ.P. Commonwealth had raised that had been claim on the merits reached, FRIEDMAN; if should have been Sheldon E. Debby B. Fried one man; Hurwitz; Hurwitz; Myrna favor, Zell it to me C. in Titcomb’s decided Akman; Akman; Alvin Marion Leon shocking justice denial of when appear a Gilmor; Gilmor; ard Sandra Morton properly to being punished for failure was Perry; Dorothy Perry, M. G. Petition the state had been raise the issue when ers-Appellants, analogous completely at fault in a much par- one punishment, when way. The fault, may justified on be
ty has been INTERNAL COMMISSIONER OF economy disregard judicial REVENUE, Respondent-Appellee. plainly stated rules. when No. 87-1154. also, disregarded the rules state has Appeals, United States proceed allowed to party other should be Fourth Circuit. on the merits.2 with a contest Argued Oct. 1988. may right, not make a wrongs Two but Decided March they other- on occasion will minimize what gross injustice. appear to be a wise would solace, being may slight incarcer- right reason be more
ated for being than incarcerated for the
tolerable
wrong reason. *6 15(b). 15(b) disagree amend- decisions in other circuits have held that the State, I because Rule present inapplicable instance. having ment de failed to raise the 15(b) provides court, Rule issues pre "[w]hen defense in district is now itself fault pleadings by express are tried or appellate relying level. cluded from on it at they implied parties, should be consent of the DeRobertis, rel. Bonner v. See United States ex respects they as if had been raised treated in all 1062, (7th 1986) (state F.2d 1066 Cir. waived 798 added). pleadings." (Emphasis There Wainwright protection its inat doctrine (or hearing) no trial held the district was court, 1264, it); Young, F.2d tention to Barrera v. 794 requested although (7th 1986) (same); Boykins v. Wain Furthermore, nothing in the one. there is Cir.1984), (11th wright, cert. 737 F.2d suggests that the record before us that denied, U.S. 84 L.Ed.2d “evidence,” expressly consented to such either (state’s (1985) failure to raise is, hand, every implicitly. There on the other precludes state from in district court preju- would be indication appeals); raising court of waiver issue in unrequested Finally, diced an amendment. (9th Cupp, 863-64 Batchelor v. brief, specifically petitioner, reply in his did denied, Cir.1982), cert. delayed object assertion to the Commonwealth’s (1983) (same); Washing 77 L.Ed.2d defense, Wainwright which it raised Cir.1981), Watkins, ton realizing after its mis- the first time denied, rt. District Court. take ce (1982) (same). appears Circuit has had no that the Fourth However, recent occasion to address this issue.