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Pope v. Netherland

May 21, 1997











Appeals from the United States District Court for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge. (CA-91-591-3)

Before WILKINSON, Chief Judge, HALL, Circuit Judge, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge

Argued: March 3, 1997

Reversed in part and affirmed in part by published opinion. Senior Judge Butzner wrote the opinion, in which Chief Judge Wilkinson and Judge Hall joined. Chief Judge Wilkinson wrote a concurring opinion.


The Commonwealth of Virginia, acting through one of its wardens, J. D. Netherland, appeals a judgment of the district court granting a writ of habeas corpus to Carlton Jerome Pope who had been sentenced to death. The district court reasoned that the Virginia Supreme Court violated the due process clause of the Fourteenth Amendment by applying an unforeseeable novel interpretation of robbery retroactively to the facts of Pope's case. Contrary to the district court, we conclude that the Supreme Court applied law that had long been settled before Pope's crime. On this issue we reverse the district court's grant of a writ of habeas corpus.

In his cross-appeal Pope raises several assignments of error. For various reasons the district court found these assignments of error defaulted or lacking in merit. On these issues we affirm the district court's judgment.


Pope was convicted of capital murder in the commission of robbery in violation of Va. Code Section(s) 18.2-31(4). The Virginia Supreme Court affirmed Pope's conviction. Pope v. Commonwealth, 234 Va. 114, 360 S.E.2d 352 (1987). It denied Pope's petition for rehearing, and the United States Supreme Court denied certiorari. Pope v. Virginia, 485 U.S. 1015 (1988).

Pope filed a petition for habeas corpus relief in the City of Portsmouth Circuit Court which was dismissed on August 22, 1989. The Virginia Supreme Court affirmed the dismissal and subsequently denied Pope's petition for rehearing. The U.S. Supreme Court again denied Pope's petition for a writ of certiorari. Pope v. Thompson, 498 U.S. 908 (1990). Pope then filed a second habeas petition with the Virginia Supreme Court pursuant to its original jurisdiction. The Virginia Supreme Court dismissed the petition on September 6, 1991.

Having exhausted his state law remedies, Pope filed a petition for habeas review in federal district court, which granted the writ but denied many of Pope's claims. Both parties have appealed.


The Virginia Supreme Court stated its findings of fact as follows:

On the evening of January 12, 1986, Marcie Ann Kirchheimer was a passenger in the front seat of a two-door "little Sunbird" owned and driven by her sister, Cynthia Gray. Cynthia drove to "Nick's Pool Hall" in downtown Portsmouth in search of a man named James Taylor. When they arrived, Marcie left the car and knocked on the door of the pool hall, but found the establishment closed. As Marcie returned to the car, Pope, who was across the street, called to them to ask if they were looking for Taylor. He walked to the car, identified himself as "Carl," and told them that Taylor had left the pool hall.

Pope asked Cynthia if she would give him a ride home. She agreed, and Pope got into the back seat of the car, where he sat on the right side, behind Marcie. Cynthia first drove to James Taylor's mother's house, where Marcie left the car to talk with Taylor's mother for a few minutes. Taylor was absent, and Marcie told his mother that they would return in ten or fifteen minutes. Marcie then rejoined Cynthia and Pope in the car. Pope directed Cynthia to Bagley Street. During the drive, Cynthia was drinking from a bottle of wine. She passed the bottle back to Pope, who also drank from it.

When the car arrived at Bagley Street, Pope told Cynthia to stop on the left side, "the wrong side of the road as [they] were travelling." Marcie opened the passenger door and pulled the seat forward to let Pope out. Immediately after emerging from the car, Pope turned toward the women, pointed a pistol at them, and said, "give me all your money." Startled, the women made no immediate response and Pope fired a shot into Cynthia's head. Marcie reached up and grappled with Pope for the gun. Pope "pulled free" and "started to run off, and took two or three steps off, and turned around." Pope then shot Marcie in the back of the head and "took off running."

Cynthia was bleeding from the head and was slumped over the steering wheel. Marcie, knowing that she, too, had been shot, "halfway sat on [Cynthia] in the middle of the car," turned on the car's emergency blinkers and drove as fast as she could to Portsmouth General Hospital. Marcie drove to the door she thought was the emergency entrance, jumped out of the car and ran to the door. Finding the door locked and that entrance no longer in use, she ran back past Cynthia's car and entered the front lobby of the hospital. There, she encountered two police officers, William Mutter and George Vick. The officers heard Marcie's screams and followed her as she ran back to the car. They found Cynthia dead from a gunshot wound to the right temple. The bullet had passed through the brain and exited in front of the left ear. Marcie was admitted to the hospital. She had a bullet wound behind the right ear. The same bullet had subsequently passed through her left shoulder and exited under her left arm. Later, in court, Marcie positively identified Pope as the assailant.

Upon arriving at the car, the police officers called for assistance and preserved the condition of the car until it could be examined. The wine bottle from which Cynthia and Pope had been drinking was found on the driver's seat and was turned over to a fingerprint examiner who found that it bore a print which positively matched a fingerprint taken from Carlton Pope.

Marcie had had no purse, and testified that Pope had taken nothing from her, but Cynthia's purse was missing after the shooting. Cynthia had been carrying a clutch-type purse with a zipper closure which she left open. It was lying "right in between the bucket seats" as the women drove to Nick's Pool Hall. During that drive, Cynthia took her checkbook out of the purse momentarily and then replaced it in the purse, which remained between the bucket seats. After the shooting, the purse was missing but the police found the checkbook on the floor of the car between the passenger seat and the door on the passenger side, through which Pope had left the car. Marcie testified that it was not Cynthia's practice to leave the checkbook on the floor or to leave"things like that strewn about the car." Marcie last saw the purse between the bucket seats, and did not see it after the shooting. While she did not see Pope remove it, she testified that it was in his view and that he had ample opportunity"to grab it without me seeing him." Pope v. Commonwealth, 234 Va. at 117-19, 360 S.E.2d at 354-55.

These findings of fact are binding on us. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981).

The parties have briefed the case under the law that was in effect before the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996. Because we deny the petition under preAEDPA standards, we need not address the application of the more deferential standards of review established by the 1996 Act. We also grant Pope's certificate of appealability. See Barefoot v. Estelle, 463 U.S. 880, 892-96 (1983).


On direct appeal Pope claimed that the evidence was insufficient on two grounds. The first ground was that someone else took Gray's purse while Marcie ran for help. The Virginia Supreme Court ruled that this was a factual issue which had been rejected by the jury when it found Pope guilty of robbery. Pope, 234 Va. at 125, 360 S.E.2d at 359. The second ground was that Pope removed the purse before the shooting and concealed it. In that event he says he would be guilty of larceny, not robbery, and hence would not be guilty of capital murder. The Supreme Court recognized that the second ground involves a matter of law. It said:

Pope's second hypothesis is fallacious as a matter of law. We decided in Linwood Earl Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980), . . . that where a killing and a taking of property are so closely related in time, place, and causal connection as to make them parts of the same criminal enterprise, the predicates for capital murder under Code Section(s) 18.2-31(d) are established. Further, these relationships need not necessarily be jury questions. They may, in a proper case, be determined as a matter of law. Pope v. Com., 234 Va. at 125, 360 S.E.2d at 359.

Pope counters that the Virginia Supreme Court violated the due process clause by retroactively applying a novel and unforeseeable interpretation of the law to uphold his conviction. It was on ...

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