Chilton v. True , 327 F. App'x 383 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7033
THOMAS A. CHILTON, JR.,
Petitioner - Appellant,
v.
WILLIAM PAGE TRUE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:05-cv-00490-JRS)
Submitted: June 16, 2008 Decided: May 1, 2009
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Neal L. Walters, James W. Burke, Per David Midboe, UNIVERSITY OF
VIRGINIA LAW SCHOOL OF LAW APPELLATE LITIGATION CLINIC,
Charlottesville, Virginia, for Appellant. Robert F. McDonnell,
Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant
Attorney General, Donald E. Jeffrey, III, Assistant Attorney
General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas A. Chilton, Jr., appeals from the denial of his 28
U.S.C. § 2254 (2000) petition. He seeks to challenge his Virginia
convictions for robbery and entering a bank while armed with a
deadly weapon. We previously granted a certificate of
appealability on the following four claims: (1) whether Chilton
showed cause and prejudice sufficient to overcome his procedural
default on his claim that the Commonwealth withheld evidence that
the one hundred dollar bill was left in the bank; (2) whether his
attorney provided ineffective assistance when he failed to timely
obtain Chilton’s jail medical records and/or move for a continuance
to obtain them; (3) whether Chilton’s attorney was ineffective for
failing to interview the bank teller prior to trial; and
(4) whether Chilton’s counsel was ineffective for failing to pursue
the Fas Mart employee witness. After briefing and further
consideration, we affirm in part and vacate and remand in part.
Federal courts may only grant writs of habeas corpus in
those instances where the state court’s adjudication on the merits
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law” or
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). In addition, a
state court’s findings of fact must be presumed correct unless the
- 2 -
petitioner rebuts that presumption with “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
With regard to Chilton’s ineffective assistance claims,
he must show that (1) counsel’s performance fell below an objective
standard of reasonableness; and (2) counsel’s deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the second prong, in order to establish that
counsel’s alleged incompetence prejudiced his case, a movant must
prove that there is a reasonable probability that his trial would
have had a different outcome absent such errors by counsel. Id. at
694.
I.
Betty Bolton, a teller at Union Bank and Trust, testified
at trial that, on October 16, 1998, Chilton entered the bank and
asked her to change a one hundred dollar bill. As she handed him
the change, he told her to give him all of her money. Along with
the rest of the money, she gave him some of the smaller bills that
were her “bait money.” As he asked for her to give him all of her
money, she noticed a long dark object that appeared to be a gun on
the counter. His hand was on the object, but she believed that she
saw the barrel. As she was pulling more money from the drawer, he
asked her to stop, which Bolton testified was “odd.” Then, Chilton
asked for the one hundred dollar bill back. Bolton testified that
- 3 -
the man appeared very calm and that the entire incident took less
than a minute. After Bolton gave Chilton less than $300, Chilton
left the bank.
Chilton contends that, while he was in prison in
September 2001 following the decision in his direct appeal, the one
hundred dollar bill was returned to him by the Hanover Police
Department.1 He states that this was the first time he had been
informed that the prosecution had evidence that he did not leave
the bank with the $100 bill. He raised a claim based on this
evidence--specifically, that the State withheld this evidence--in
his brief to the Supreme Court of Virginia on direct appeal, but
the claim was denied without discussion. In addition, he raised
the claim in his state post-conviction proceeding, and the court
found the claim defaulted. Chilton claims that he can show cause
and prejudice sufficient to forgive his default. See Mackall v.
Angelone, 131 F.3d 442, 445 (4th Cir. 1997) (en banc).
Chilton states that he can show cause because he was not
aware and had no reason to believe that the evidence was withheld
until it was returned to him after his time to raise the issue on
appeal from his conviction had passed. See Murray v. Carrier, 477
U.S. 478, 488 (1986) (holding that a showing that the factual basis
for a claim was not reasonably available will satisfy the “cause”
1
The return form does not disclose the circumstances under
which the bill was found.
- 4 -
requirement). The Commonwealth relies on trial counsel’s
affidavit, submitted during the state court post-conviction
proceeding, in which counsel stated that “[o]n the way out of the
bank Chilton dropped the $100 bill on the floor, and this was
recovered by bank employees; despite this, Chilton left with more
than $100. Whether Chilton left the bank with the $100 bill was
never an issue--everyone, including Chilton, knew that the $100
bill had been dropped in the bank, I never told him anything
otherwise.” Thus, the Commonwealth contends that, at the time of
his appeal, Chilton was aware that the one hundred dollar bill had
been left in the bank, and he could have properly raised the issue
on appeal.
However, as Chilton points out, it is not at all clear
that “everyone” knew that he had “dropped” the $100 bill in the
bank. Both the Commonwealth and Chilton’s attorney (in closing
argument) told the jury that Chilton left the bank with the bill.
Moreover, neither Bolton nor Chilton testified as to what happened
to the one hundred dollar bill. The record does not disclose why
Chilton’s attorney believed that the bill was dropped by Chilton,
where it was recovered, or by whom. Further, the record does not
disclose why, if Chilton’s attorney was aware of the “dropped”
bill, he argued at trial that Chilton took it with him when he left
the bank. Thus, we find that a material issue of fact exists
regarding when Chilton became aware that there was evidence
- 5 -
supporting the conclusion that he left the bank without the one
hundred dollar bill.
Not only must Chilton show cause for his failure to raise
this claim earlier, he must also show resulting prejudice. To show
prejudice, Chilton must demonstrate “a reasonable probability that
the result of the trial would have been different.” Harbison v.
Bell, 408 F.3d 823, 834 (6th Cir. 2005), cert. denied, 547 U.S.
1101 (2006). The evidence against Chilton was quite substantial.
There was no doubt as to the identity of the robber, and Chilton
confessed. However, Chilton’s defense rested on his mental state
and his assertions that he was attempting to get change. Thus, the
whereabouts of the one hundred dollar bill was material. The fact
that Chilton took a stack of small bills and left without his one
hundred dollar bill certainly bolsters his claim that he was trying
to get change. Instead, the jury was told that Chilton took the
bill with him, seriously undermining his defense. We find that
Chilton has satisfied the Harbison standard and made a showing that
there is a “reasonable probability” that the result of his trial
would have been different had the jury heard this evidence. See
Strickland v. Washington, 466 U.S. 668, 694 (1984) (“A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.”).
For the foregoing reasons, we vacate the district court’s
dismissal of this claim as defaulted and remand for a hearing on
- 6 -
when Chilton discovered that the Commonwealth recovered the one
hundred dollar bill from inside the bank. The facts developed at
the hearing will likely also aid the court in determining whether
this information would have affected the jury’s decision. Should
the court find on remand that Chilton showed cause and prejudice
sufficient to overcome his default, the court should then address
the merits of Chilton’s claim.
II.
Chilton claims that his attorney was ineffective for
failing to investigate Chilton’s alleged breakdown when he was
jailed after his arrest. Chilton asserts that he was treated with
anti-psychotic drugs and that, despite his request, his attorney
failed to timely obtain the jail records, consult with his treating
physician, and move for a continuance when the records could not be
located. The medical records showed that Chilton was medicated and
that he was complaining of depression, suicidal thoughts,
delusions, and hearing voices. Chilton claims that these records
would have aided both the expert witnesses who testified at the
motion in limine on his insanity defense and his defense at trial.
The trial court held a pre-trial hearing on the
Commonwealth’s motion to exclude expert evidence regarding
Chilton’s insanity defense. At the hearing, three doctors
testified that Chilton was sane at the time of the offense, and
- 7 -
therefore, the state court granted the motion. However, Drs.
Pasquale and Gibby also testified that an individual who was
suffering from post-traumatic stress disorder (Chilton was a
Vietnam veteran) and/or was a heavy drug user (as Chilton was)
could experience blackouts or extreme confusion. Dr. Israel
testified that Chilton suffered from depression and post-traumatic
stress disorder, which caused him to function at a diminished
mental capacity.
Chilton’s attorney tried unsuccessfully for months to
obtain the jail records. The records were eventually filed in
court, but when counsel asked for them before trial, he was told
that they had not been filed. At trial, no further objection was
made, and the records were not discovered until after Chilton’s
conviction.
In his affidavit submitted in state court, Chilton’s
attorney stated that, although he had subpoenaed the records, he
was told that they had not been delivered. He asserted that he
told Chilton they could get a continuance, but Chilton elected to
proceed to trial anyway. In addition, counsel stated that none of
the examining physicians believed it necessary to review the
records. Prior to Chilton’s trial, the court swore him in and
questioned him regarding whether he was ready for trial. Chilton
testified that he had sufficient time to discuss his defenses with
- 8 -
his attorney, that he was satisfied with his attorney, and that he
was ready for trial.
In Chilton’s state filings, which consisted of a verified
petition and accompanying memorandum of law, he noted that Drs.
Israel and Gibby had actually testified that information regarding
Chilton’s demeanor nearer to the time of the crime would have been
helpful.2 In addition, Chilton averred that he testified he was
prepared for trial, because his attorney told him that the judge
would not grant any more continuances. In fact, a week and half
before the scheduled trial date, the judge stated in open court,
“And the Court finds for the record that what is going on here is
Mr. Chilton is attempting to dictate how the case will be tried.
Twelve people are going to be in the box that day, and I’m not
going to delay it. I’m not going to delay the trial again.”
(Trial Tr. at 381).
The state court denied the claim when it was raised in
Chilton’s post-conviction proceeding, reasoning that (1) none of
the professionals who evaluated Chilton believed the jail records
would have been helpful, (2) counsel reasonably relied on the
clerk’s statement that the records had not been timely delivered to
the court, and (3) Chilton testified that he was ready to go to
2
Drs. Israel and Gibby testified specifically that the reports
of witnesses to the crime would have been helpful to their
analyses. The jail medical records begin less than two months
after the crime. The testifying doctors did not examine Chilton
until well over seven months after the crime.
- 9 -
trial and satisfied with his attorney. We conclude that the first
finding was unreasonable given the record before the state court,
as it is belied by the doctors’ testimony that information on
Chilton’s demeanor closer to the crime would be helpful. In
addition, the doctors were never specifically asked if the jail
records would be helpful, so it is unclear if they even knew of
their existence. The second finding is irrelevant to counsel’s
failure to move for a continuance so that the records could be
located, and the third finding, while true, is not determinative.
Chilton alleged that his attorney convinced him to
abandon the issue of the jail records, by telling him that the
judge would not grant any more continuances. He supported these
allegations with the court’s own statements, as well as his
verified petition. In addition, the record is replete with
Chilton’s requests for continuances, which undermines counsel’s
assertions that Chilton wanted to forego a continuance and go right
to trial.
Chilton’s attorney claims that he told Chilton they could
get a continuance, but Chilton decided to forego one. He supported
these assertions with his affidavit, as well as Chilton’s testimony
that he was ready to proceed with trial.3
3
This testimony did not address the records in any way.
Moreover, accepting Chilton’s allegations as true, he believed that
a continuance was not a possibility at the time of his testimony.
- 10 -
Thus, both parties submitted detailed and supported
statements on the issue of whether Chilton’s attorney informed him
that a continuance was not a possibility and that he should proceed
to trial without the records. The state court did not hold a
hearing and did not make findings on this issue, resting instead on
the unreasonable conclusion that the doctors did not want to
evaluate the jail records and the somewhat irrelevant conclusions
that Chilton’s attorney reasonably relied on the court’s statement
that the records had not been filed and that Chilton testified he
was ready for trial.
Even if Chilton proves that his attorney improperly
convinced him to forego a continuance, he must also show that he
was prejudiced by this action. While the state court unreasonably
concluded that the doctors did not feel that the records would have
been helpful, there remains a question as to whether the records
would have actually altered the doctors’ conclusions. While the
records certainly show that Chilton was suffering from some
psychological problems, it is unclear whether this information
would actually lead psychologists to determine that Chilton was
insane or whether the jury would be moved by this evidence.
However, neither the state court nor the district court fully
addressed the prejudice prong of this claim.
Accordingly, we conclude that the state court’s factual
findings are, in part, unreasonable and, in part, irrelevant.
- 11 -
Further, the state court failed to make a factual finding on the
central issue of what Chilton’s attorney told him regarding the
possibility of a continuance. Thus, we vacate the district court’s
order and remand for a hearing to determine whether Chilton’s
attorney acted unreasonably and whether Chilton was prejudiced
thereby.
III.
With regard to Chilton’s remaining claims, we have
carefully considered his filings, as well as the entire record, and
we conclude that the district court did not commit reversible error
in denying these claims. Accordingly, we affirm the denial of
these claims for the reasons stated by the district court.
Chilton v. True, No. 3:05-cv-00490-JRS (E.D. Va. May 18, 2006). We
deny Chilton’s motions for application of funds, expansion of the
certificate of appealability, suspension of the briefing order, and
inspection of the records. We grant Chilton’s motion to amend his
reply brief and deny his motion to file a pro se supplemental
brief. We deny his motion to appoint counsel as moot. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
- 12 -