Flippo v. McBride , 393 F. App'x 93 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7216
JAMES MICHAEL FLIPPO,
Petitioner – Appellant,
v.
THOMAS L. MCBRIDE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:05-cv-00765)
Argued: March 26, 2010 Decided: August 30, 2010
Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Ira Mickenberg, Saratoga Springs, New York, for
Appellant. Silas B. Taylor, OFFICE OF THE ATTORNEY GENERAL OF
WEST VIRGINIA, Charleston, West Virginia, for Appellee. ON
BRIEF: Darrell V. McGraw, Jr., Attorney General, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On October 23, 1997, a West Virginia jury convicted
petitioner James Michael Flippo of murdering his wife.
Following a sentencing hearing, the trial judge sentenced him to
life without parole. Flippo sought relief on direct appeal, but
the Supreme Court of Appeals of West Virginia ultimately
affirmed his conviction and sentence. Having exhausted his
direct appeals, Flippo timely filed for habeas relief, first in
state court and then in federal court. As grounds for relief,
he argued (1) that the introduction of certain expert testimony
violated his right to due process because it was “objectively
false” and (2) that he was denied effective assistance of
counsel when his trial lawyer opened the door to questions about
his sexuality. The federal magistrate judge assigned to the
case recommended that the writ be denied, and the district court
adopted this recommendation. Flippo appeals. We affirm.
I.
At sometime between the hours of two and three in the
morning on April 30, 1996, Flippo called 911 for emergency
assistance. He told the operator that he and his wife had been
staying in a cabin in Babcock State Park when they were attacked
by an unknown intruder. The operator notified the police, who
arrived on the scene at approximately 2:40 a.m. The police
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found Flippo distraught and suffering from minor injuries, later
identified as bruises on the front and back of his head, and
cuts and scratches on his legs. He took them back to the cabin,
where they found his wife, Cheryl Flippo, lying on the floor
with “very visible and obvious injuries to her head.” J.A. 724.
Indeed, the head injuries were so severe that brain matter was
exposed. Paramedics confirmed that she was dead. Dr. Zia
Sabet, assistant medical examiner in the West Virginia Medical
Examiner’s Office, later concluded that Cheryl Flippo had died
from blunt force injuries to the head, and that the death was a
homicide.
In Flippo’s statement to the police, he claimed that
he had awoken in the middle of the night to see a masked man
lying between his bed and the wall. He attempted to warn his
wife but was struck with a fire log, rendering him unconscious.
According to Flippo, when he regained consciousness, he found
the masked man cutting his thighs with a knife and threatening
to cut off his penis. Before Flippo could react, the masked man
again knocked him out with the log. When Flippo came to a
second time, the intruder was gone and his wife was unconscious.
Unable to wake his wife, Flippo ran to a pay phone outside the
park and called 911.
Shortly after Flippo gave his statement, the police
began to give “some consideration to Flippo as a possible crime
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suspect in the case because of developing, inconsistent and
conflicting evidence.” J.A. 728. Evidence from the crime scene
showed no signs of forced entry and no footprints attributable
to an intruder. While Flippo never mentioned the intruder using
any kind of restraint, inside the cabin the police found a roll
of duct tape with Flippo’s fingerprint on it and a small piece
of duct tape from that roll near his wife’s body. The police
also determined that the pattern of blood stains indicated that
“blood had been deliberately transferred to, or placed on, the
mattress and pillow,” and that a rocking chair had been
deliberately placed in an overturned position after the murder.
J.A. 731. Finally, Flippo’s insistence that he and his wife
had been stalked prior to the evening in question was
substantiated by “[n]o credible or reliable evidence.” J.A.
742.
In an effort to assess the veracity of Flippo’s
statements regarding his own injuries, the police had Flippo
examined by Dr. Irvin Sopher, a retired chief medical examiner.
Sopher concluded that Flippo’s injuries were inconsistent with
his story and eventually gave testimony concerning this
conclusion at Flippo’s trial. With regard to the cuts on
Flippo’s leg, Sopher opined at trial that the pattern “we’re
seeing on these thighs is exactly what one would see with self-
inflicted injuries” with a nail or screwdriver rather than a
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large knife. J.A. 570. With regard to Flippo’s bruises, Sopher
testified that “[i]n my opinion, there was no significant injury
to his head, and certainly no significant injury, even in
consideration of that 48-hour time frame, that would have
resulted in an unconscious state at the time that these events
occurred.” J.A. 574. Responding to a question about what he
would expect to find after a person had been hit with “a log or
a heavy or blunt object, sufficient enough to render them
unconscious,” J.A. 561, Sopher testified:
Well, you’d find a considerable bruise. I mean,
there’s no question about that. And you would find on
the skin surface some abrasion or scraping and you
would find, in all likelihood, from a blow from a
blunt object . . . a split of the skin. . . . And the
reason for that is that when one receives a severe
blow to the head from a blunt object, there is, unlike
in your extremities, such as your arm or your leg,
there is no buffer. There is no soft tissue of any
substantial thickness underlying your forehead or your
scalp to sustain the energy involved in the impact.
J.A. 562.
The police also uncovered numerous pieces of evidence
suggesting that Flippo’s marriage was strained and that he had
motive to kill his wife. Flippo was a pastor at the Landmark
Church of God in Nitro, Kanawha County, and the police
interviewed several of his congregants. Tamara Lynn Cremeans, a
congregant and friend of the Flippos, testified at trial that
James Flippo had asked her to pray for Cheryl Flippo only six
days before the murder because of Cheryl’s “dislike of his
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friendship with Joel Boggess.” J.A. 733. Boggess was another
member of Flippo’s congregation as well as a business partner in
the purchase of some real estate. One of Flippo’s fellow
pastors, the Reverend Timothy Allen Cremeans, testified at trial
that Flippo had expressed frustration over Cheryl’s opposition
to his business venture with Boggess. When the Reverend
Cremeans asked Flippo if Cheryl was ultimately going to go along
with it, Flippo answered “yes” because “I’m sick of her right
now. She knows if she doesn’t go along with it, I’ll leave
her.” J.A. 366, 733.
There was also evidence that Flippo would benefit
financially from his wife’s death. The couple had previously
been involved in a car accident and received a settlement of
$80,000. The Flippos had put the money in a retirement account,
however, requiring the permission of both parties for any
withdrawal. Also, shortly before the murder, an insurance
policy on Cheryl Flippo’s life had been issued in the amount of
$100,000. Accordingly, Cheryl’s death gave her husband access
to almost $180,000.
Finally, there was some, admittedly scant evidence
that Flippo and Boggess were involved in a homosexual
relationship. In a briefcase at the crime scene the police
discovered several photographs “depicting a man, later
identified as Joel Boggess, in what appeared to be wet clothes,
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and the man was either putting on or taking off his jeans.”
J.A. 732. These photos, together with Flippo’s friendship with
Boggess and his wife’s dislike of the friendship, prompted
Flippo’s trial counsel to raise the issue on cross-examination.
Boggess denied being a homosexual and testified that “to the
best of his knowledge, Flippo was not a homosexual.” J.A. 736.
The trial judge had, by pre-trial order, forbidden the
prosecution from raising the issue, and consequently it had not
been raised prior to the defense’s questions.
On this evidence, a West Virginia jury convicted
Flippo of first degree murder, and the trial judge sentenced him
to life without parole the following day. After several years
of appeals, Flippo’s conviction became final on November 27,
2002. Flippo subsequently filed a timely state habeas petition
that was denied without an evidentiary hearing. In a detailed,
well-reasoned opinion, the state habeas judge — who also tried
the case — rejected both Flippo’s argument that Dr. Sopher’s
testimony amounted to “junk science and lies” and his argument
that his counsel provided ineffective assistance when he raised
the homosexuality issue. J.A. 745-48. The judge dismissed the
argument concerning Dr. Sopher’s testimony as “wholly without
merit” in light of Sopher’s clear competence to determine both
the extent of the injuries and their possible causes. With
regard to Flippo’s ineffective assistance claim, the judge
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determined that Flippo’s counsel made a reasonable, tactical
decision when he raised the issue of homosexuality and that, in
any event, there was no likelihood that the result would have
been different if he had not raised the issue.
Flippo timely filed this application for a federal
writ on September 15, 2005. The district court accepted the
magistrate’s recommendation to deny the writ and overruled
Flippo’s objections. Although the factual basis of Flippo’s
federal petition was identical to that of his state petition,
there was some dispute over the legal theory supporting his
“junk science” argument. The magistrate judge had assumed that
Flippo was arguing that Dr. Sopher’s testimony violated due
process solely because the prosecution knew the testimony was
false. In his objections, however, Flippo argued that his due
process objection was alternatively based on “fundamental
fairness” under a different line of case law. J.A. 894-95. The
district court held that this legal theory had not been
presented to the state courts and therefore was unexhausted and
procedurally barred. It rejected Flippo’s other arguments for
largely the same reasons as the state courts. This appeal
followed.
II.
Flippo has consistently argued at every relevant stage
of the proceedings that the introduction of Dr. Sopher’s
8
testimony violated his constitutional right to due process and
that his trial lawyer’s raising of the homosexuality issue
violated his right to effective assistance of counsel. The
first argument has been made — not always as consistently — on
alternative grounds: (1) the objective falsity of Sopher’s
testimony itself violated due process; and (2) the fact that the
prosecution knew or should have known it was false violated due
process. The state argues that the district court correctly
held that the first ground for Flippo’s due process claim is
unexhausted and procedurally barred. On Flippo’s other claims,
the state argues simply that they are without merit.
A.
Where the state courts have adjudicated a claim on the
merits, federal courts may not grant a writ of habeas corpus
unless the state court decision (1) “was contrary to, or
involved an unreasonable application of, clearly established
Federal law” or (2) “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). This court “reviews de
novo the district court's application of the standards of 28
U.S.C. § 2254(d) to the findings and conclusions of the [state]
court.” McNeill v. Polk, 476 F.3d 206, 210 (4th Cir. 2007).
Although courts may reach the merits of a habeas
petition to deny it, 28 U.S.C. § 2254(b)(2), they cannot issue
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the writ for unexhausted or procedurally defaulted claims. An
exhausted claim has been “fairly presented” to the state courts.
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). A
procedurally defaulted claim is one that either has been, or
would be, rejected by the state courts, not on the merits, but
on the basis of an adequate and independent state procedural
rule. Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000).
Courts may excuse a procedural default and reach the merits of a
claim only if petitioner can show “cause for the default and
prejudice resulting therefrom or that a failure to consider the
claims will result in a fundamental miscarriage of justice.”
Polk, 476 F.3d at 211.
B.
We need not decide whether any aspect of Flippo’s due
process claim is unexhausted because the claim fails on the
merits. Flippo has consistently cited three cases to support
both legal theories: Miller v. Pate, 386 U.S. 1 (1967), Napue
v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States,
405 U.S. 150 (1972). Under either of Flippo’s theories, his
claim cannot succeed unless he demonstrates that Sopher’s
testimony was false. See Miller, 386 U.S. at 7 (“More than 30
years ago this Court held that the Fourteenth Amendment cannot
tolerate a state criminal conviction obtained by the knowing use
of false evidence. . . . There can be no retreat from that
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principle here.”); Napue, 360 U.S. at 269 (“[I]t is established
that a conviction obtained through use of false evidence, known
to be such by representatives of the State, must fall under the
Fourteenth Amendment.”); Giglio, 405 U.S. at 153-54 (holding
that due process was violated where a cooperating witness
testified falsely on cross-examination that he had never
received a promise of non-prosecution and the state did not
correct the falsehood). We reject Flippo’s claim because the
state court’s determination that Dr. Sopher’s testimony was not
false was not unreasonable.
After finding Dr. Sopher competent to offer the
opinion that he did, the state habeas judge turned to Flippo’s
claim that Sopher’s testimony was false:
The Petitioner’s characterization of Dr. Sopher’s
testimony as “false” and “fabricated” and that the
State aided in the presentation of such evidence which
the State knew to be false is wholly and utterly
without any merit. For Dr. Sopher’s trial testimony
to be deemed false or a lie it would have to be
conclusively shown that his trial testimony was
totally and wholly different from what he truthfully
and actually believed at the time he so testified.
Such was not the case here.
J.A. 746. Flippo argues that the district and state courts
erred because they misconstrued what it means for testimony to
be “false.” Appellant’s Br. at 27-28. Whether a witness
believes what he says is relevant to whether that witness is
lying, but not to whether what he says is the truth. A person
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could produce expert evidence that the earth is flat, believe
that the earth is flat, and still be wrong. With regard to
Sopher’s testimony, Flippo has proffered the statement of a
neuropsychologist, as well as several treatises and articles, to
support his claim that no expert could determine if an injury
caused unconsciousness through a mere surface examination.
Accordingly, Flippo argues, Sopher’s testimony that he could not
have been knocked unconscious must be false because it too was
based on a mere surface examination.
Flippo’s argument does not fail because it lacks
analytic coherency, but rather because it lacks support in the
case law. In Napue and Giglio the false testimony at issue was
whether the prosecution had made promises to a witness in return
for his testimony — a fact directly observable to a lay person
and requiring no expert testimony. Napue, 360 U.S. at 265;
Giglio, 405 U.S. at 150-51. While Miller did involve expert
testimony, the falsity of the expert testimony given at trial
was not challenged by the state. Miller, 386 U.S. at 5. In
Miller the prosecution’s case hinged on a pair of shorts,
allegedly owned by the defendant and stained with the victim’s
blood. Id. at 4. Believing that the shorts were in fact
stained with paint, the prosecution nevertheless put on an
expert witness to corroborate the theory that the stains were
the victim’s blood. Id. at 4, 6. When the defendant produced
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his own expert witness in habeas proceedings to testify that the
stains were paint, the state did not object. Id. at 5. Miller
did not therefore involve a battle of the experts, but rather
testimony recognized as false by both parties. Indeed, it is
far from clear that the result in Miller would have been the
same if the state had contested the petitioner’s expert
findings.
These cases do not provide support for finding a due
process violation whenever a petitioner comes forward, post-
trial, with additional expert evidence challenging a trial
expert’s testimony. Flippo should have presented his expert
evidence to a jury, not a habeas court. But even if Miller
could be stretched to cover this case, it was not unreasonable
for the state habeas court to find that Sopher’s testimony was
not “false” within the boundaries set by the Supreme Court for
that term. See Winston v. Kelly, 592 F.3d 535, 554 (4th Cir.
2010) (“For a state court's factual determination to be
unreasonable under § 2254(d)(2), it must be more than merely
incorrect or erroneous. It must be sufficiently against the
weight of the evidence that it is objectively unreasonable.”)
(internal citations omitted). Flippo’s own expert evidence
largely concerned the general question of determining whether a
person was unconscious for a period time, rather than whether
the cause of Flippo’s specific injuries could have induced an
13
unconscious state. Consequently, we conclude that Flippo has
failed to carry his burden to show that Sopher’s testimony was
false, let alone that the state court’s contrary finding was
sufficiently against the evidence to be objectively
unreasonable.
C.
The primary issue raised by Flippo’s ineffective
assistance claim is whether his trial counsel’s decision to
cross-examine Boggess on his alleged homosexuality was
strategic. Strategic decisions are insulated from challenge for
ineffective assistance. Powell v. Kelly, 562 F.3d 656, 670 (4th
Cir. 2009) (“Once counsel conducts a reasonable investigation of
law and facts in a particular case, his strategic decisions are
virtually unchallengeable.”) (internal quotation marks omitted).
Accordingly, if the state courts reasonably determined that
Flippo’s counsel’s decision was strategic, his claim must fail.
Flippo argues that the decision was not strategic, and that, in
the alternative, the issue presents a factual question that must
be resolved at a hearing. Appellant’s Br. at 33-34. The state
responds that there is no factual allegation which “if proven,
would demonstrate that Petitioner is entitled to relief under
the stringent standards of § 2254(d).”
Flippo’s argument fails because he has failed to carry
his burden. It is his burden to prove, by “clear and convincing
14
evidence,” any facts material to his claim that contradict
factual findings of the state courts. 28 U.S.C. § 2254(e)(1).
The state habeas court concluded that trial counsel’s decision
was strategic, and Flippo has not even alleged the existence of
contrary facts. No allegations have been made, for example,
concerning what Flippo’s trial counsel believed with regard to
his decision. With regard to whether the district court should
have granted Flippo’s request for a hearing, that decision rests
within the discretion of the district court, Schriro v.
Landrigan, 550 U.S. 465, 468 (2007), and there is no reason to
believe that the district court abused that discretion here.
III.
For the reasons stated above, the district court’s
denial of petitioner’s application for a writ of habeas corpus
is affirmed.
AFFIRMED
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