                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2001

George v. Sively
Precedential or Non-Precedential:

Docket 98-7609




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Recommended Citation
"George v. Sively" (2001). 2001 Decisions. Paper 128.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/128


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Filed June 12, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7609

MATTHEW GEORGE,

       Appellant

v.

J.L. SIVELY, Warden*

(*Amended Per Court's Order of 12/19/00)

ON APPEAL FROM THE DISTRICT COURT OF
THE VIRGIN ISLANDS

(Dist. Court No. 97-cv-00047)
District Court Judge: Raymond L. Finch

Argued: December 8, 2000

Before: MANSMANN and ALITO, Circuit Judges, and
FULLAM, Senior District Judge1

(Opinion Filed: June 12, 2001)

       BETHANEY J. VAZZANA (argued)
       1138 King Street
       The Pentheny Building, 2nd Floor
       Christiansted, V.I. 00820

Counsel for Appellant



_________________________________________________________________
1. The Honorable John P. Fullam, Senior District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       JAMES A. HURD, JR.
       JAMES R. FITZNER
       DAVID L. ATKINSON (argued)
       1108 King Street, Suite 201
       Christiansted, V.I. 00820

       Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Matthew George, who is serving a sentence for Virgin
Islands criminal offenses, appeals an or der of the District
Court of the Virgin Islands denying his motion to vacate his
sentence under 28 U.S.C. S 2255. George contends that he
was denied the effective assistance of counsel at trial
because his attorney did not request a jury instruction to
the effect that voluntary intoxication could negate the mens
rea needed for the crime of assault in thefirst degree. We
hold that counsel's performance was not deficient and that
George was not prejudiced by counsel's failure to request
the instruction in question, and we therefor e affirm.

I.

In 1992, George was charged by infor mation in the
District Court of the Virgin Islands with attempted murder
in the first degree, in violation of 14 V.I. CODE ANN. SS 331
& 922(a)(1); possession of a deadly weapon during a violent
crime, in violation of 14 V.I. CODE ANN. S 2251(a)(2)(B); and
kidnaping, in violation of 14 V.I. CODE ANN. S 1051.
Although the charges against George wer e all based on
territorial law, at the time in question, the District Court of
the Virgin Islands, rather than the T erritorial Court, had
jurisdiction. See Callwood v. Enos, 230 F .3d 627, 631 (3d
Cir. 2000).

The charges against George stemmed fr om an incident
involving George, two of his co-workers, Domingo Solis and
Rusty Hilliard, and the victim, Larry McCor mick. The
evidence at trial showed the following. McCor mick had been

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living in a trailer with George's brother and his girlfriend.
One evening, George, Solis, and Hilliar d went to the trailer
and told McCormick that George's br other wanted him to
move out. McCormick packed his things, put them in the
trunk of Solis's car, and the four men dr ove away.
McCormick asked to be taken to Christiansted, but Solis
took him to another spot on St. Croix called Salt River.
After McCormick took his belongings fr om the trunk,
McCormick scuffled with George and Hilliard, and
eventually George picked up Hilliard's knife and slit
McCormick's throat. McCormick said:"[M]y jugular vein's
been cut, please take me to the hospital." Geor ge reportedly
commented: "Good, I hope you die," and he dr ove away
with Solis and Hilliard. McCormick tied a t-shirt around his
neck. A passing motorist picked him up, and he was given
first aid and medical treatment that saved his life. In
George's defense, several witnesses testified that George
had been drinking very heavily prior to the incident and
was intoxicated.

The trial judge instructed the jury concerning the
elements of the offense of attempted mur der and the lesser
included offenses of assault in the first degree, 14 V.I. CODE
ANN. S 295(1),2 and assault in the third degree, 14 V.I. CODE
ANN. S 297.3 The judge also instructed the jury that
intoxication may make it impossible for a person to form
the specific intent needed for attempted mur der, but the
judge did not give a similar instruction relating to assault
in the first degree. George's attor ney argued at some length
that assault in the first degree is a specific intent crime,
_________________________________________________________________

2. This provision states:

       Whoever-

       (1) with intent to commit murder, assaults another . . . . shall be
       imprisoned not more than 15 years.

3. This provision states in relevant part:

       Whoever, under circumstances not amounting to an assault in the
       first or second degree-

       (1) assaults another person with intent to commit a felony . . . .
       shall be fined not less than $500 and not mor e than $3,000 or
       imprisoned not more than 5 years or both.

                               3
but the judge rejected her arguments, and she did not
make a formal request for an intoxication instruction
relating to this offense.

The jury acquitted George of attempted mur der and
kidnaping, but convicted him of assault in the first degree
and possession of a deadly weapon during a violent crime.
He was sentenced to consecutive terms of fifteen years for
assault and five years for possession of a deadly weapon.

In his direct appeal, George's only ar gument was that the
trial judge improperly admitted photographs of
McCormick's injuries. We upheld his conviction in an
unpublished decision. See Government of the Virgin Islands
v. George, 16 F.3d 403 (3d Cir . 1993). George next filed a
motion in the District Court pursuant to 28 U.S.C.S 2255.
The District Court denied this motion, and thr ee judges of
our Court granted his application for a certificate of
appealability on the question of whether his trial counsel
was ineffective in failing to request an intoxication
instruction concerning the offense of assault in the first
degree.

II.

Before addressing the merits of this appeal, we must
consider whether the District Court had jurisdiction to
entertain George's motion under 28 U.S.C.S 2255. Shortly
before the argument in this case, our court handed down
three opinions that clarified the structur e of collateral
review of Virgin Islands cases in light of the 1984
amendments of the Revised Organic Act and subsequent
territorial legislation. See Callwood v. Enos , 230 F.3d 627
(3d Cir. 2000); Parrott v. Gov't of the Virgin Islands, 230
F.3d 615 (3d Cir. 2000); W alker v. Gov't of the Virgin
Islands, 230 F.3d 82 (3d Cir. 2000). Both George and the
appellees take the position that George was entitled to
proceed under S 2255 and was not r equired instead to
exhaust his territorial remedies.4 We agree.5
_________________________________________________________________

4. The Government could of course waive exhaustion, but under 28
U.S.C. 2254(b)(3), "[a] State may not be deemed to have waived the
exhaustion requirement . . . unless the State, through counsel, expressly

                               4
Although George was prosecuted and convicted solely for
territorial -- not federal -- offenses, and although the
District Court of the Virgin Islands would not have
jurisdiction today to try a case such as Geor ge's, his S 2255
motion falls squarely within the terms ofS 2255, which
provides that "[a] prisoner in custody under sentence of a
court established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the
United States . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence."
George is in custody under sentence of the District Court of
the Virgin Islands, which was established by Act of
Congress, see 48 U.S.C. S 116(a); he claims the right to be
released on the ground that he was denied the effective
assistance of counsel guaranteed by the Sixth Amendment
and the Revised Organic Act, 48 U.S.C. S 1561; and he filed
his motion with the court that imposed the sentence, i.e.,
the District Court of the Virgin Islands. We see no reason
why S 2255 should not be applied to a case such as this in
accordance with its plain terms.

The three recent decisions noted above ar e entirely
consistent with this conclusion. We begin with Parrott
because, like the present case, it involved a collateral attack
by a prisoner who had been convicted in the District Court
for a territorial offense. The prisoner in that case filed a
petition for a writ of habeas corpus in the T erritorial Court,
and we held that the Territorial Court possessed
jurisdiction to entertain that petition. We r easoned that
Congress had authorized the Legislature of the Virgin
Islands to divest the District Court of jurisdiction over
purely local civil matters by vesting such jurisdiction in the
_________________________________________________________________

waives the requirement." Here, the United States Attorney has argued
that we should hear this appeal and should not r equire George to
exhaust his territorial remedies, but because counsel has not in so many
words waived exhaustion, we cannot deem the r equirement to be waived.

5. As we recently noted, "since 1949 the District Court of the Virgin
Islands has had jurisdiction under 28 U.S.C. S 2255 over petitions
brought by prisoners challenging the imposition of sentences by that
court." Callwood, 230 F.3d at 632 n.5.

                               5
Territorial Court; that the Legislatur e had done so; that a
petition for a writ of habeas corpus fell within this grant of
jurisdiction; and that a previously enacted territorial law
conferring upon the District Court the jurisdiction to
entertain habeas petitions, 5 V.I. CODE ANN. S 1303, had in
effect been modified.

We see nothing in Parrott that suggests that the District
Court lacked jurisdiction to entertain George's S 2255
motion. Under Parrott, George could have elected to attack
his conviction by filing a habeas petition in the Territorial
Court, but it does not follow that George was not also
entitled to proceed, if he wished, by filing a S 2255 motion
in the court of conviction, i.e., the District Court. Parrott
said nothing about S 2255, and we do not think that the
territorial law that effectively divested the District Court of
general civil jurisdiction over purely local matters impliedly
precludes that Court from exercising the authority quite
explicitly granted by S 2255.

Our reasoning in Callwood supports this analysis. In
Callwood, we held that a prisoner serving a sentence for
territorial offenses could challenge his par ole proceedings
by filing a petition for a writ of habeas corpus pursuant to
28 U.S.C. S 2241 in the District Court. After noting that the
District Court does not now have jurisdiction under the
Virgin Islands Code to entertain habeas petitions, we held
that the District Court's jurisdiction under S 2241 had not
been affected by the amendments to the Revised Organic
Act or the new territorial legislation. Moreover, we observed
that "[n]othing in the 1984 amendments [to the Revised
Organic Act] affects the authority of the District Court of
the Virgin Islands to issue relief under S 2255, where
applicable." Callwood, 230 F.3d at 632 n.5.

Finally, in Walker, we held that a prisoner convicted of
territorial offenses in the Territorial Court could file a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
S 2254 in the District Court and that in such a case the
procedural requirements applicable to such a petition,
including the need to obtain a certificate of appealability
and the need to exhaust territorial remedies, would apply.
We see nothing in Walker that suggests that George was not
entitled to proceed under S 2255.

                               6
In sum, we hold that the Parrott-Callwood-Walker trilogy
presents no obstacle to the filing of a motion under S 2255
in the District Court of the Virgin Islands by a prisoner
convicted in that court for a territorial of fense. Needless to
say, this holding has no application to prisoners convicted
of territorial offenses in the Territorial Court.

III.

We now turn to the merits. Geor ge argues that assault in
the first degree is a specific intent crime, i.e., that it
requires proof of the specific intent needed for murder in
the first degree, "willfulness, deliberation, and
premeditation." See Government of the Virgin Islands v.
Martinez, 780 F.2d 302, 305 (3d Cir . 1985). He notes that
voluntary intoxication may be a defense with r espect to an
offense requiring specific intent. See 14 V.I. CODE ANN. S 16;
Government of the Virgin Islands v. Commissiong, 706 F.
Supp. 1172, 1182 (D.V.I. 1989); see also Montana v.
Egelhoff, 518 U.S. 37, 47 (1996) (plurality); United States v.
Davis, 183 F.3d 231, 253 (3d Cir. 1999); United States v.
Williams, 892 F.2d 296, 37, 47 (3d Cir. 1989); 1 W. LaFave
& A. Scott, Substantive Criminal Law S 3.5(e), at 315 & n.
61 (2d ed. 1986). He therefore asserts that it was
fundamental error for his trial counsel to not request an
instruction relating to this offense. In response, the
Government argues that assault in thefirst degree under
Virgin Islands 14 V.I. CODE ANN. S 295(1) is a general intent
crime, i.e., that it requires only pr oof of malice, not
willfulness, deliberation, or premeditation, and that
voluntary intoxication is not a defense to a general intent
offense. See 14 V.I. CODE ANN. S 16; Commissiong, 706
F.Supp. at 1182 ("voluntary intoxication .. . cannot negate
malice"). Moreover, the Gover nment contends that even if
assault in the first degree is a crime of specific intent,
George's trial counsel did not render ineffective assistance.

A.

In assessing George's argument, our analysis must begin
with the "strong presumption" that counsel's performance
was reasonable. See Strickland v. W ashington, 466 U.S.

                               7
668, 689 (1984). "The defendant must over come the
presumption that, under the circumstances, the challenged
action `might be considered sound trial strategy.' " Id. at
689; United States v. Kauffman, 109 F .3d 186, 189-90 (3d
Cir. 1997). "It is [ ] only the rare claim of ineffective
assistance of counsel that should succeed under the
properly deferential standard to be applied in scrutinizing
counsel's performance." United States v. Gray, 878 F.2d
702, 711 (3d Cir. 1989).

A defendant claiming ineffective assistance of counsel
must satisfy the two-pronged test announced by the
Supreme Court in Strickland. To do so, the defendant must
show "(1) that counsel's representation fell below an
objective standard of reasonableness; and (2) that there is
a reasonable probability that, but for counsel's error, the
result would have been different." United States v. Nino,
878 F.2d 101, 103 (3d Cir. 1989) (citing Strickland, 466
U.S. at 687-96); see also Kauffman, 109 F.3d at 190. Both
Strickland prongs must be satisfied. See Nino, 878 F.2d at
104. George is unable to satisfy either .

B.

In assessing the first prong -- whether counsel's
representation fell below an objective standard of
reasonableness -- it is not necessary for us to decide
whether assault in the first degree is a specific - or general
- intent crime under Virgin Islands law. If the Government
is correct that it is a general intent crime, the intoxication
defense would not be applicable, and counsel could not be
found to have acted unreasonably for failing to request an
intoxication instruction. On the other hand, even if George
is correct that assault in the first degr ee is a specific-intent
crime, his counsel's representation still satisfied the
relevant standard of reasonableness. As the Supreme Court
has stated, "a court deciding an actual inef fectiveness claim
must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct." Strickland, 466 U.S. at 690.

The record in this case shows that the trial judge and
counsel for both sides engaged in a lengthy discussion

                               8
about the mens rea required for assault in the first degree.
See App. 215-32. During this exchange, Geor ge's counsel
argued repeatedly that assault in thefirst degree is a
specific-intent crime. See App. 217-23. However, the judge
disagreed and concluded that it is a general-intent crime.
See App. 228.

In light of this colloquy, we conclude that the
performance of George's trial counsel did not fall below the
level demanded by the Sixth Amendment. It is well
established that voluntary intoxication may be a defense to
a crime of specific intent but not to a crime of general
intent, and it is apparent that the trial judge was familiar
with this rule, because he gave an intoxication instruction
with respect to the specific-intent of fense of attempted
murder but not with respect to assault in the first degree,
which he believed to be a general-intent offense. Thus, by
arguing that assault in the first degr ee is a specific-intent
crime, George's trial attorney tried to persuade the trial
judge to accept a proposition that was the necessary
predicate for obtaining an intoxication instruction. When
the judge rejected defense counsel's mens r ea arguments,
the argument for obtaining an intoxication instruction was
logically doomed. George's trial counsel pr eserved the mens
rea argument for appeal, and we do not think that the
Sixth Amendment required her to go further and make a
futile, formal request for an intoxication instruction.
Accordingly, we hold that George cannot satisfy the first
prong of Strickland.

C.

Nor can George satisfy the second prong. Under this
prong, we must decide whether there is a r easonable
probability that the result of the trial would have been
different if George's counsel had r equested an intoxication
instruction relating to assault in the first degree. As
discussed above, the trial judge's view that assault in the
first degree is a general intent crime logically doomed any
request for an intoxication instruction r elated to that
offense. Therefore, even if counsel had done precisely what
George now alleges she erred in failing to do, the jury still

                               9
would not have been instructed about this defense, and the
outcome of the trial would have remained the same.

IV.

For these reasons, we affirm the decision of the District
Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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