Docket – November 27, 2018

4th U.S. Circuit Court of Appeals

Sierra Club v. U.S. Army Corps of Eng’rs (P), 4th Cir. (Wynn) from USACE.

In verifying that Mountain Valley Pipeline can proceed with construction under the terms and conditions of Clean Water Act Nationwide Permit 12, the U.S. Army Corps of Engineers lacked statutory authority to substitute its own special condition  “in lieu of” a different special condition imposed by West Virginia as part of its certification of NWP 12.

Absent completion of the notice-and-comment procedures required by the Clean Water Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. Because West Virginia didn’t follow its federally mandated notice-and-comment procedures in waiving another special condition the state imposed as part of its certification of NWP 12, that condition remains a required — but, in this case, unsatisfied — condition of the nationwide permit.

Agency’s verification and reinstated authorization vacated.

Lawlor v. Zook (P), CAV (Thacker) from EDVA at Norfolk (Davis).

A Virginia state court sentenced the petitioner to death after his capital murder conviction. The district court dismissed his petition for review of his death sentence under 28 U.S.C. § 2254. This was error.

The state court excluded specialized and relevant testimony of a qualified witness who would have explained that the petitioner “represents a very low risk for committing acts of violence while incarcerated,” where the jury’s only choices were life in prison without parole or death. Exclusion of this testimony was an unreasonable application of clearly established federal law. The state court’s error in this regard had a substantial and injurious effect.

The U.S. Supreme Court has long recognized that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Although the Virginia Supreme Court recognized this clearly established law, it attempted to circumvent it by relying on baseless interpretations of state law that themselves contravened longstanding Supreme Court law. A state cannot bar the consideration of evidence if the sentencer could reasonably find that it warrants a sentence less than death. Once this threshold is met, the Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant’s mitigating evidence.

Reversed and remanded.

Court of Appeals of Virginia

Yafi v. Stafford Dep’t of Soc. Servs. (P), CAV (Humphreys) from Stafford (Willis).

The Department of Social Services wasn’t required to try to reunite a toddler with his father before terminating parental rights after the father’s conviction for felony child abuse against the toddler’s 4-year-old brother.

The 4-year-old’s hospital physician testified to the nature and severity of his head trauma, comparing the injury to one that would be suffered by an unrestrained individual involved in a high-speed motor vehicle accident. She also testified that the crushing or splintering of the child’s vertebra was clearly a non-accidental injury. She further opined that the child’s injuries occurred on more than one occasion. As a result of his injuries, the child is permanently blind and has a permanent loss of brain tissue, which will affect his developmental milestones and cognitive function.

The father argues in part that his parental rights to his younger son shouldn’t have been terminated because the toddler was not the victim of any assault or abuse. But the facts of this case represent precisely the kind of situation Code § 16.1-283(E)(iii) is designed to address. That subsection expressly permits the termination of the parental rights of any or all of a parent’s children when he or she has been convicted of felony assault resulting in serious bodily injury if the victim of the offense was a child of the parent at the time of the offense.


Wakeman v. Commonwealth (P), CAV (Russell) from Shenandoah (Hupp).

In a rape trial, a nurse was qualified to testify as an expert in the area of sexual assault forensic examination despite not having a formal certification as a Sexual Assault Nurse Examiner.

Because the General Assembly has not enacted a special expert qualification statute for nurses called to testify regarding forensic exams in sexual assault cases, Rule 2:702(a) governs whether a nurse should be qualified as an expert on the subject. Notably absent from the rule is any requirement that an expert carry a particular certification in order to serve as an expert.

The nurse in this case earned a nursing degree in 2010 and had worked as a nurse since then. She had additional education and training regarding the performance of forensic examinations, including completing all of the training necessary to obtain SANE certification. She had also served in her hospital’s forensic nursing program for three years, performing forensic nursing examinations unsupervised for three years. Therefore, under Rule 2:702(a)(i), she possessed “scientific, technical, or other specialized knowledge” regarding sexual assault forensic examination and “a degree of knowledge of [the] subject matter beyond that of persons of common intelligence and ordinary experience.”


Categories: Daily Dockets

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