George v. Angelone

901 F. Supp. 1070

Michael Carl GEORGE, Petitioner, v. Ronald J. ANGELONE, Director, Virginia Department of Corrections, Respondent.

Civ. A. No. 3:95CV001.

United States District Court, E.D. Virginia, Richmond Division.

October 10, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gerard Joseph Roerty, Jr., Stephen Atherton Northup, Mays and Valentine, Richmond, VA, for petitioner Michael Carl George.

Robert Beman Beasley, Jr., Office of the Attorney General, Richmond, VA, John Hill McLees, Jr., Office of the Attorney General, Richmond, VA, for respondent Don Angelone, Director, Virginia Department of Corrections.

MEMORANDUM

MERHIGE, District Judge.

On June 12, 1995, Michael Carl George ("George") filed a Petition for a Writ of Habeas Corpus against Respondent, Ronald Angelone, the Director of the Virginia Department of Corrections, pursuant to 28 U.S.C. § 2254. This matter comes before the Court on Respondent's motion to dismiss George's Petition for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion has been fully briefed and argued by the parties and is ripe for disposition.

Background

Procedural Posture

In 1990, George was charged with capital murder during the course of a robbery while armed with a deadly weapon in violation of Virginia Code section 18.2-31(d). The Commonwealth also charged him with robbery, abduction with intent to defile, and use of a firearm in the commission of capital murder. The case was tried by a jury in December of 1990, who returned guilty verdicts on all charges. In a separate sentencing proceeding on the capital murder conviction, the jury recommended a sentence of death. The trial court imposed that sentence on February 20, 1991.

The Supreme Court of Virginia upheld George's conviction and sentence. His petition for writ of certiorari to the United States Supreme Court was denied on April 6, 1992, 503 U.S. 973, 112 S.Ct. 1591, 118 L.Ed.2d 308. Subsequently, George filed a petition for a writ of habeas corpus in the Circuit Court of Prince William County. The circuit court dismissed all claims raised in the petition on April 2, 1993. The Virginia Supreme Court denied a petition for appeal from the dismissal of George's state habeas petition. George's petition for writ of certiorari to the United States Supreme Court on that aspect was denied.

Factual Background

In affirming George's conviction and sentence on direct appeal, the Virginia Supreme Court stated the facts of the case as follows:

The victim, fifteen-year-old Alexander Eugene Sztanko, lived with his parents in the City of Manassas. The family recently had moved from a home on Cardinal Drive in Woodbridge, and on Saturday, June 16, 1990, Alex and his parents went to the Woodbridge house to move "out all of the things they had left there."

After arriving at the Cardinal Drive address, Alex decided to ride his motorcycle along a power line easement that crossed his parents' property and extended into a nearby wooded area traversed by a number of trails. Mr. and Mrs. Sztanko last saw Alex alive about 2:00 p.m., when he rode into the woods. "Maybe half an hour or an hour" later, Alex's father heard "two shots coming from the wooded area."

About 10:45 a.m. the next day, Corporal Joseph Dillon of the Prince William County Police Department, who was aware that Alex Sztanko was missing, observed a silver and blue Ford Bronco parked off the side of Cardinal Drive near the woods into which Alex had ridden. Dillon had seen the vehicle parked in the same location about 3:30 p.m. the day before. Dillon pulled in behind the vehicle, "ran the tag" through the Department of Motor Vehicles, and learned that the Bronco was registered in the name of Michael George.

Dillon then observed a "camouflage-clad subject" walking toward him from the south side of Cardinal Drive. The person started toward Dillon, and turned and ran eastwardly along the shoulder of Cardinal Drive, and entered the woods. When about ten feet into the woods, the person "knelt down for ... a few seconds, then came up and walked quickly deeper into the woods ... and ... turned and started walking in Dillon's direction." The person was "crouched as he was moving through the woods," making it appear to Dillon that he did not want to be seen.

"Shaking very badly" and "sweating profusely," the person identified himself as Michael George, said he was looking for a place to go turkey hunting, and asked Dillon, "I'm not trespassing, am I?" Because the two "were standing right under a no trespassing sign" Dillon said, "well, according to this, obviously you are."

When Dillon asked George whether he had been in the area the day before, George replied forcefully in the negative. But when Dillon said he had seen George's vehicle there the day before and had observed the "tag on it," George said, "oh yeah, I was here yesterday."¹

Dillon called for assistance, and, when another unit responded, he placed George under arrest for trespassing. After another officer had transported George from the scene, Dillon walked to the spot in the woods where George had "knelt down." There, Dillon found a pair of black tennis shoes, later identified as belonging to Alex Sztanko.

Dillon left the tennis shoes undisturbed. A blood hound was brought to the scene and taken to the shoes. From that point, the dog led police back to George's Bronco and then "right up through the woods" to where Alex Sztanko's body was located. The body was shoeless but otherwise clothed.

An autopsy revealed that Alex had suffered a single gunshot wound to the head, causing immediate loss of consciousness and rapid death. The autopsy also revealed abrasions of the penis which, in the opinion of the medical examiner, were consistent with an "electrical burning." Other expert testimony showed that Alex was still alive when the injuries to his penis were inflicted and that the "injuries would have been terribly painful."

Laboratory examination of the substances taken from Alex's clothing and body showed the presence of seminal fluid on his T-shirt and thigh, although the origin of this fluid could not be determined. A similar examination of "pubic area swabs and ... stains from George's underpants" showed the presence of seminal fluid "consistent with ... Mr. George and different from Mr. Sztanko." George's camouflage pants were stained with blood inconsistent with his blood type but consistent with Alex's. Fibers found on Alex's T-shirt were consistent with the material from which George's camouflage jacket was made.

At the time of his arrest, George was carrying a sheath knife, various keys, including a handcuff key, and a topographical map bearing a hand-drawn "x" corresponding to the spot where Alex's body was discovered and a hand-drawn "o" corresponding to the location where his motorcycle was found. A search of George's Bronco revealed a machete, a tear gas canister, and an electrical stun gun capable of producing the "electrical burning" of Alex's penis.

A search of George's room in his parents' home produced a pair of handcuffs. The key taken from George at the time of his arrest fit the handcuffs. Also found in George's room was a fully loaded nine millimeter pistol. Expert testimony established that this pistol fired the shot which caused Alex Sztanko's death.

While incarcerated awaiting trial, George told Roger Settle, a cell mate, that he had "stopped Alex Sztanko and got his attention," then "grabbed him and dragged him off of his bike back into the woods ... to have sex with him." George also told Settle that he sodomized Alex, "stunned the boy in his private parts several times," and "shot him in his head."

George v. Commonwealth, 242 Va. 264, 411 S.E.2d 12, 15-16 (1991).

Discussion

In this, his first federal habeas petition, Petitioner has attacked his conviction and sentence on the following eleven grounds:

(A) The evidence of robbery was insufficient to support a conviction for capital murder.

(B) The prosecutor's reference to the victim and the impact of the victim's death in closing argument during the guilt phase of petitioner's trial rendered the trial fundamentally unfair in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

(C) The Supreme Court of Virginia should have found that Petitioner's conviction and sentence were the product of passion, prejudice and other arbitrary factors because of the consolidation for trial of the intent to defile charge with the capital murder and robbery charges, and its failure to so find was a violation of Petitioner's due process rights.

(D) Petitioner's Sixth Amendment right to counsel was violated when the Commonwealth presented testimony from petitioner's cell mate regarding statements made by the Petitioner.

(E) The trial court unduly restricted petitioner's ability to present a defense to the "vileness" predicate for a death sentence.

(F) The trial court violated Petitioner's right to due process when it permitted the Commonwealth to present evidence of George's cruelty to animals during the sentencing phase of the trial.

(G) The trial failed to conduct a proper voir dire in the manner mandated by Ross v. Oklahoma and Morgan v. Illinois.

(H) The trial court erred in failing to exclude for cause a potential juror whose son was a pallbearer at the victim's funeral.

(I) Virginia's "vileness" predicate is unconstitutionally vague as applied.

(J) The death penalty in Virginia is disproportionate and discriminatory as applied.

(K) The Supreme Court of Virginia fails to provide an adequate and meaningful appellate review of the death penalty.

Respondent argues that George's petition must be dismissed because all of George's claims are either procedurally defaulted, barred by the "new rule" doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), or without merit.

Review of a Motion to Dismiss a Section 2254 Petition

...