Page:United States Reports 502 OCT. TERM 1991.pdf/904

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ORDERS 995

997

Opinion of Blackmun, J.

Following the denial of state habeas relief by the Virginia Circuit Court, O’Dell filed a timely notice of appeal with the Virginia Supreme Court. Having interpreted the relevant subsection of the Virginia Code as providing for an appeal as of right, O’Dell’s counsel then filed timely assignments of error.4 On March 6, 1991, a week after the filing deadline, the Deputy Clerk of the Virginia Supreme Court and the attorney for the Commonwealth informed petitioner’s counsel that, in their opinion, O’Dell did not have an appeal as of right and thus O’Dell also needed to file a petition for appeal. At the same time, the Commonwealth’s attorney allegedly informed petitioner’s counsel that he would not oppose O’Dell’s supplementation of his filings with the additional document. Two days later, however, when O’Dell filed a motion to perfect his appeal, the Commonwealth opposed the motion. On March 15, O’Dell filed his petition for appeal. On April 1, the Virginia Supreme Court denied O’Dell’s motion and rejected his appeal. The Commonwealth now argues that the Virginia Supreme Court’s rejection of O’Dell’s appeal bars review of the merits of the federal questions raised by O’Dell in the Commonwealth’s courts. The Virginia Supreme Court’s dismissal of O’Dell’s habeas petition should not deprive a federal habeas court of jurisdiction. to the trial court that the argument was made in such a way as to convince the jury that it had only two options: either sentence petitioner to death or turn him loose on the streets to kill again. In fact, petitioner could receive only the death sentence or life without parole. The trial court refused petitioner’s request for a curative instruction or a chance to rebut the prosecutor’s misleading statements. In his state habeas proceedings, petitioner argued that the trial court had violated Gardner v. Florida, 430 U. S. 349 (1977), which held that a defendant is denied due process of law when his death sentence is imposed, at least in part, on the basis of information that he had no opportunity to deny or explain. The Virginia Circuit Court held that this challenge was barred by res judicata under Hawks v. Cox, 211 Va. 91, 175 S. E. 2d 271 (1970). 4 A Virginia statute provides that a habeas decision in a capital case is appealable directly to the Virginia Supreme Court. See Va. Code Ann. § 17– 116.05:1(B) (1988); Hill v. Commonwealth, 8 Va. App. 60, 69, 379 S. E. 2d 134, 139 (1989). The wording of this statute—“appeals lie directly to the Supreme Court”—suggests an appeal as of right, rather than a discretionary petition for appeal. The other categories of cases listed in this subsection require the filing of assignments of error, not a petition for appeal.