Muhammad v. Kelly

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN ALLEN MUHAMMAD, 

Petitioner-Appellant,

v.

 No. 08-13

LORETTA K. KELLY, Warden,

Sussex I State Prison,

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Liam O’Grady, District Judge.

(1:07-cv-01022-LO-TRJ)

Argued: May 12, 2009

Decided: August 7, 2009

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Judge Motz and Judge Duncan joined.

COUNSEL

ARGUED: Jonathan P. Sheldon, DEVINE, CONNELL &

SHELDON, PLC, Fairfax, Virginia, for Appellant. Katherine

Baldwin Burnett, OFFICE OF THE ATTORNEY GENERAL

OF VIRGINIA, Richmond, Virginia, for Appellee. ON

2 MUHAMMAD v. KELLY

BRIEF: James G. Connell, III, DEVINE, CONNELL &

SHELDON, PLC, Fairfax, Virginia; Nathaniel H. Akerman,

Joseph Perkovich, DORSEY & WHITNEY LLP, New York,

New York, for Appellant. William C. Mims, Attorney Gen-

eral of Virginia, Jerry P. Slonaker, Senior Assistant Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellee.

OPINION

GREGORY, Circuit Judge:

John Allen Muhammad petitions this Court for a writ of

habeas corpus. He alleges nondisclosure of exculpatory infor-

mation by the prosecution, ineffective assistance of his trial

counsel, improper exclusion of expert testimony during his

sentencing phase, and improper time and page restrictions on

his habeas petition in the district court below. We are unable

to find reversible error in the conclusions of the state and dis-

trict courts, and we therefore affirm the district court’s deci-

sion to deny habeas relief.

I.

Paul J. LaRuffa was a restaurateur in Clinton, Maryland. At

the end of the day on September 5, 2002, LaRuffa closed his

restaurant and proceeded to take his laptop computer and

$3500 in cash and credit receipts to his car. After he sat

behind the steering wheel, he saw a figure to his left and a

flash of light, then heard gunshots. LaRuffa was shot six

times, but survived. An employee who left the restaurant with

LaRuffa witnessed the shooting and called 911. He testified

that he saw a "kid" run up to LaRuffa’s car, fire into it, and

take the briefcase and laptop. Muhammad v. Virginia, 619

S.E.2d 16, 25 (Va. 2005). The briefcase and empty deposit

bags were found six weeks later in a wooded area approxi-

MUHAMMAD v. KELLY 3

mately a mile from the shooting. The DNA from clothing

found nearby was consistent with that of Lee Boyd Malvo.

On September 15, 2002, there was a second shooting in

Clinton, Maryland: Muhammad Rashid was locking the front

door of the Three Roads Liquor Store from the outside when

he heard gunshots behind him. A young man then rushed him

and shot him in the stomach. Rashid testified that the young

man was Malvo.

Almost a week later, on September 21, 2002, Claudine Par-

ker and Kelly Adams were shot after closing the Zelda Road

ABC Liquor Store in Montgomery, Alabama. Parker died as

a result of her gunshot wound through the back—the bullet

transected her spinal cord and passed through her lung.

Adams was shot through the neck, and the bullet exited

through her chin, breaking her jaw in half, shattering her face

and teeth, paralyzing her left vocal cord, and severing nerves

in her left shoulder. Yet, she survived. Bullets recovered from

the shooting were eventually identified as coming from a

Bushmaster high-powered rifle. While the rifle was being

fired, Malvo was seen approaching Parker and Adams. A

police car passed by the scene immediately after the shooting,

and the officers observed Malvo going through the women’s

purses. The officers gave chase, but Malvo escaped. In the

process, however, he dropped a gun catalog. Malvo’s finger-

prints were found on the catalog, and a .22-caliber, stainless-

steel revolver was found in the stairwell of an apartment

building that Malvo traversed. The revolver was the same as

the one used to shoot LaRuffa and Rashid.

Two days later, on September 23, 2002, the manager of a

Baton Rouge, Louisiana, Beauty Depot store, Hong Im Bal-

lenger, was walking to her car after closing the store for the

evening when she was shot once in the head. The bullet

entered the back of her head and exited through her jawbone.

She died as a result of the wound. The bullet was determined

to have come from the Bushmaster rifle found on Muhammad

4 MUHAMMAD v. KELLY

during his arrest. Witnesses saw Malvo flee from the scene

with Ballenger’s purse.

The sixth and seventh shootings occurred in Silver Spring,

Maryland, on October 3, 2002. At approximately 8:15 a.m.,

Premkumar A. Walekar was shot while fueling his taxicab.

The bullet went through his left arm and entered his chest,

where it fatally damaged his heart. At approximately 8:30

a.m., Sarah Ramos was killed while sitting on a bench in front

of the Crisp & Juicy Restaurant in the Leisure World Shop-

ping Center. The bullet entered through the front of her head

and exited through her spinal cord at the top of the neck. Both

bullets were identified as having come from a Bushmaster

rifle, and an eyewitness identified Muhammad’s Chevrolet

Caprice at the scene of the second shooting.

On October 3, 2002, at approximately 10:00 a.m., Lori

Lewis-Rivera was shot in the back while vacuuming her car

at a Shell gas station in Kensington, Maryland. The bullet was

identified as coming from a Bushmaster rifle. An eyewitness

said that he saw a Chevrolet Caprice in the area approxi-

mately twenty minutes before the shooting. At approximately

7:00 p.m., a police officer stopped Muhammad for running

two stop signs. The officer gave Muhammad a verbal warning

and released him. Later that night, at approximately 9:15 p.m.,

Pascal Charlot was shot in the chest as he crossed the inter-

section of Georgia Avenue and Kalmia Road in the District of

Columbia. Charlot’s shooting happened about thirty blocks

from where Muhammad was stopped. The bullet fragments

from both the Lewis-Rivera and the Charlot shootings were

identified as coming from a Bushmaster rifle.

The next day, October 4, 2002, Caroline Seawell was put-

ting bags in her minivan outside of a Michael’s craft store in

Fredericksburg, Virginia, when she was shot once in the back.

The bullet damaged her liver and exited through her right

breast, but she survived the attack. An eyewitness testified to

seeing a Caprice in the parking lot at the time of the shooting,

MUHAMMAD v. KELLY 5

and ballistics tests determined the bullet fragments came from

a Bushmaster rifle.

On October 6, 2002, Tanya Brown was taking Iran Brown

to Tasker Middle School in Bowie, Maryland. As Iran was

walking on the sidewalk to the school, he was shot once in the

chest. Tanya drove Iran to a health care center where surgeons

were able to save his life despite lung damage, a large hole

in his diaphragm, damage to the left lobe of his liver, and lac-

erations to his stomach, pancreas, and spleen. Two eyewit-

nesses testified that they saw a Caprice in the vicinity of the

school the day before and the morning of the shooting. One

eyewitness positively identified both Muhammad and Malvo

in the Caprice the morning of the shooting. The police

searched the surrounding area and found a ballpoint pen and

a shell casing in the woods near the school. The area had been

pressed down like a blind used to conceal hunters. The tissue

samples from the pen matched Muhammad’s DNA, and the

shell casing and bullet fragments were determined to have

come from a Bushmaster rifle. The Brown shooting was also

the first time that police discovered communications from the

shooters. The tarot card for death was found, and on it was

written, "Call me God." On the back, someone had written,

"For you, Mr. Police. Code: Call me God. Do not release to

the Press." Muhammad v. Virginia, 619 S.E.2d at 27.

Three days later, on October 9, 2002, Dean Meyers was

fueling his car at a Sunoco station in Manassas, Virginia,

when he was shot in the head by a single bullet. The bullet

was later determined to have come from a Bushmaster rifle.

An eyewitness testified that she saw Muhammad and Malvo

in the area approximately one hour prior. The police actually

interviewed Muhammad in a parking lot across the street

immediately after the shooting, and they later found a map

with Muhammad’s fingerprints in the parking lot.

On October 11, 2002, Kenneth Bridges was fired upon at

an Exxon gas station in Massaponax, Virginia. He was shot

6 MUHAMMAD v. KELLY

once in the chest by a bullet identified as having come from

the Bushmaster rifle. Two eyewitnesses testified that they saw

a Caprice at or near the Exxon that morning.

The fourteenth shooting occurred on October 14, 2002, in

Falls Church, Virginia. Linda Franklin and her husband were

loading their car outside of a Home Depot when she was shot

in the head by a single bullet and killed. Ballistics experts

determined that the bullet was from a Bushmaster rifle.

The next day, October 15, a Rockville, Maryland, dis-

patcher received the following telephone call: "Don’t say any-

thing, just listen, we’re the people who are causing the

killings in your area. Look on the tarot card, it says, ‘call me

God, do not release to press.’ We’ve called you three times

before trying to set up negotiations. We’ve gotten no

response. People have died." Id. at 28. The caller hung up

before the dispatcher could transfer the call to the Sniper Task

Force.

Three days later, on October 18, Officer Derek Baliles of

the Montgomery County, Maryland, Police received a tele-

phone call. The caller told Baliles to "shut up" and said that

he knew who was doing the shootings, but wanted the police

to verify some information before he said anything further. Id.

The caller asked questions about the Parker and Adams shoot-

ings in Alabama and hung up again. When the caller called

again, Baliles verified the shootings. The caller stated that he

needed to find more coins and a telephone without surveil-

lance, then hung up. The same day, William Sullivan, a priest

in Ashland, Virginia, received a telephone call from two peo-

ple. The first male voice told him that someone else wanted

to speak to him. The second male voice said that "the lady

didn’t have to die," and "it was at the Home Depot." Id. The

caller then told him about the shooting in Alabama and said,

"Mr. Policeman, I am God. Do not tell the press." Id. The

caller concluded by telling Sullivan to relay the information

to the police.

MUHAMMAD v. KELLY 7

The next day, October 19, 2002, Jeffery Hopper and his

wife were leaving a restaurant in Ashland, Virginia, when he

was shot in the abdomen. Hopper survived, but his injuries

required five surgeries to repair his pancreas, stomach, kid-

neys, liver, diaphragm, and intestines. In the woods near the

crime scene, police discovered another blind similar to the

one at the Brown shooting. They also found a shell casing, a

candy wrapper, and a plastic sandwich bag that was attached

with a thumbtack to a tree at eye level and was decorated with

Halloween characters and self-adhesive stars. The shell casing

and bullets were determined to have come from a Bushmaster

rifle. The candy wrapper contained Muhammad’s and

Malvo’s DNA. The sandwich bag contained a handwritten

message:

For you Mr. Police. "Call me God." Do not release

to the Press.

We have tried to contact you to start negotiation . . .

These people took our call for a Hoax or Joke, so

your failure to respond has cost you five lives.

If stopping the killing is more important than catch-

ing us now, then you will accept our demand which

are non-negotiable.

(i) You will place ten million dollar in Bank of amer-

ica account . . . We will have unlimited withdrawl at

any atm worldwide. You will activate the bank

account, credit card, and pin number. We will con-

tact you at Ponderosa Buffet, Ashland, Virginia, tel.

# . . . 6:00 am Sunday Morning. You have until 9:00

a.m. Monday morning to complete transaction. "Try

to catch us withdrawing at least you will have less

body bags."

(ii) If trying to catch us now more important then

prepare you body bags.

8 MUHAMMAD v. KELLY

If we give you our word that is what takes place.

"Word is Bond."

P.S. Your children are not safe anywhere at anytime.

Id. at 28-29 (alterations in original). However, the note was

not discovered until after the deadline had passed. Surveil-

lance videotapes from that day identified Muhammad at a Big

Lots store near the shooting.

The day after Hopper was shot, the FBI Sniper Tip Line

received a call from a male who stated, "Don’t talk. Just lis-

ten. Call me God. I left a message for you at the Ponderosa.

I am trying to reach you at the Ponderosa. Be there to take a

call in ten minutes." Id. at 29. On October 21, 2002, the FBI

negotiations team received a call that had been re-routed from

the Ponderosa telephone number. A recorded voice said:

Don’t say anything. Just listen. Dearest police, Call

me God. Do not release to the press. Five red stars.

You have our terms. They are non-negotiable. If you

choose Option 1, you will hold a press conference

stating to the media that you believe you have caught

the sniper like a duck in a noose. Repeat every word

exactly as you heard it. If you choose Option 2, be

sure to remember we will not deviate. P.S. – Your

children are not safe.

Id.

The next day at around 6:00 a.m., Conrad Johnson, a bus

driver for the Montgomery County Transit Authority, was

shot in the chest as he was entering his bus in Aspen Hill,

Maryland. Johnson was conscious when the rescue workers

arrived, but died at the hospital. The bullet fragments were

determined to have come from a Bushmaster rifle. At another

blind discovered nearby, a black duffle bag and a brown left-

MUHAMMAD v. KELLY 9

handed glove were found. DNA from hair found in the duffle

bag matched that of Muhammad. Another plastic bag that

contained self-adhesive stars and a note was left behind.

On October 24, 2002, the FBI captured Muhammad and

Malvo at a rest area in Frederick County, Maryland. They

were asleep in a Caprice, where police found a loaded .223-

caliber Bushmaster rifle behind the rear seat. The DNA on the

rifle matched that of both Muhammad and Malvo, although

the only fingerprints found on the rifle were those of Malvo.

The Caprice had been modified with heavy window tint, a

hinged rear seat that provided easy access to the trunk from

the passenger compartment, and a hole that had been cut into

the trunk lid just above the license plate. Covering the hole

was a right-handed brown glove that matched the left-handed

glove found near the Johnson shooting, and a rubber seal

crossed over the hole. Moreover, the trunk had been spray-

painted blue.

Police also found the following items in the Caprice: a

global positioning system receiver; a magazine about rifles;

an AT&T telephone charge card; ear plugs; maps; plastic

sandwich bags; a rifle scope; .223-caliber ammunition; two-

way radios; a digital voice recorder; a receipt from a Baton

Rouge, Louisiana, grocery store, dated September 27, 2002;

an electronic organizer; a plastic bag from Big Lots; a slip of

paper containing the Sniper Task Force telephone number;

and a list of schools in the Baltimore area. Moreover, police

found LaRuffa’s laptop computer, onto which Muhammad

had loaded "Microsoft Streets and Trips 2002" on September

2, 2002. In the software program, maps had been marked with

icons, including some with a skull and crossbones. Icons indi-

cated where Walekar, Lewis-Rivera, Seawell, Brown, Mey-

ers, and Franklin had been shot. There was also a document

entitled "Allah8.rtf" that contained portions of the text com-

municated to police in the extortion demands.

In total, Muhammad was accused of shooting sixteen peo-

ple and killing ten of them. Muhammad was convicted by a

10 MUHAMMAD v. KELLY

jury in the Circuit Court of Prince William County, Virginia,

on November 17, 2003, for the 2002 capital murder of Dean

Meyers as more than one murder in three years, in violation

of Va. Code Ann. § 18.2-31(8) (2003); for the capital murder

of Meyers in the commission of an act of terrorism, in viola-

tion of Va. Code Ann. § 18.2-31(13) (2003); for conspiracy to

commit capital murder; and for the illegal use of a firearm

during the commission of murder. On November 24, 2003,

the jury sentenced Muhammad to death for the capital murder

and to twenty-three years in prison for the other crimes. The

trial court entered final judgment in accordance with the ver-

dict on March 29, 2004. The Supreme Court of Virginia

upheld Muhammad’s convictions on April 22, 2005, Muham-

mad v. Virginia, 619 S.E.2d 16, and denied rehearing on Sep-

tember 23, 2005. The Supreme Court of the United States

denied Muhammad’s petition for a writ of certiorari on May

15, 2006. Muhammad v. Virginia, 547 U.S. 1136 (2006).

The Prince William County Circuit Court appointed coun-

sel to represent Muhammad on habeas corpus review.

Muhammad filed his petition on July 31, 2006, and the

Supreme Court of Virginia dismissed the petition on June 12,

2007, Muhammad v. Warden, 646 S.E.2d 182 (Va. 2007). It

denied rehearing on September 25, 2007. The Supreme Court

of the United States denied Muhammad’s petition for a writ

of certiorari on April 14, 2008. Muhammad v. Kelly, 128 S.

Ct. 1889 (2008). On October 4, 2007, the Prince William

County Circuit Court set Muhammad’s execution date for

November 5, 2007. On October 10, 2007, a group of attorneys

requested that the U.S. District Court for the Eastern District

of Virginia appoint them to represent Muhammad and stay his

execution pursuant to 28 U.S.C. § 2251 (2006) so that they

could file a petition under 28 U.S.C. § 2254 (2006). The dis-

trict court granted their request on October 26, 2007, and

directed them to file, within sixty days, a petition of not more

than fifty pages. They subsequently filed a motion requesting

that the district court rescind its briefing order and allow them

to wait a year to file Muhammad’s § 2254 petition. The dis-

MUHAMMAD v. KELLY 11

trict court denied the motion, but allowed the attorneys an

additional thirty days to file an eighty-page petition. On Janu-

ary 22, 2008, the district court allowed Muhammad to file a

placeholder petition on the ninetieth day from the stay and

gave advance permission to file an amended petition three

months afterward. On January 24, 2008, Muhammad filed his

placeholder petition, and on April 23, 2008, he filed his

amended petition.

On April 23, 2008, Muhammad also filed a motion request-

ing funding for a neuropsychologist, a neuropsychiatrist, and

brain imaging in the amount of $29,000. Additionally,

Muhammad filed a motion for leave to file a third habeas peti-

tion, arguing that his one-year time limit had not expired. On

August 6, 2008, the district court denied Muhammad’s motion

to file a third amended petition. On September 24, 2008, the

district court denied his motion for funding and granted the

Warden’s motion to dismiss the petition and to lift the stay of

execution. Muhammad requested a certificate of appealability

(COA) on October 20, 2008, and filed a notice of appeal. The

district court denied a COA. On January 30, 2009, Muham-

mad filed a motion with this Court seeking a COA, and we

granted his motion on February 10, 2009.

II.

The district court’s denial of a petition for a writ of habeas

corpus is reviewed de novo. Bell v. Ozmint, 332 F.3d 229, 233

(4th Cir. 2003). We may grant relief on a claim adjudicated

on the merits in a state court only if the state-court proceeding

"resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States." 28

U.S.C. § 2254(d)(1). With this in mind, we turn to the merits

of Muhammad’s claims.

12 MUHAMMAD v. KELLY

III.

A.

Muhammad’s first argument is that the government with-

held exculpatory information during his trial. "[A] Brady [v.

Maryland, 373 U.S. 83 (1963),] violation has three essential

elements: (1) the evidence must be favorable to the accused;

(2) it must have been suppressed by the government, either

willfully or inadvertently; and (3) the suppression must have

been material, i.e., it must have prejudiced the defense at

trial." Monroe v. Angelone, 323 F.3d 286, 299-300 (4th Cir.

2003) (citing Strickler v. Greene, 527 U.S. 263, 281-82

(1999)).

Muhammad notes that in June 2006, one month before the

due date for filing his state habeas petition, his Virginia attor-

neys received from his Maryland attorneys a DVD with

approximately 30,000 pages of discovery responses that were

not produced during his Virginia case over two years earlier

even though they were possessed by the same multijurisdic-

tional joint investigation team. Muhammad contends that sev-

eral of these undisclosed documents contained exculpatory

information that would have undermined portions of the pros-

ecution’s case in Virginia.

First, Muhammad takes issue with the government’s failure

to disclose an FBI criminal analysis that indicated that the

sniper committing the shootings was likely acting alone. He

believes that this analysis would have undermined the testi-

mony of sniper expert Mark Spicer, who opined that a sniper

team carried out the shootings because one person could not

have done so alone. Moreover, in the murder of Pascal Char-

lot, the government had no direct evidence of Muhammad’s

involvement, but used Spicer’s testimony to draw the connec-

tion. The district and state courts concluded that the analysis

was not exculpatory because the report did not definitively

conclude that the killings were the work of a single shooter.

MUHAMMAD v. KELLY 13

Muhammad v. Warden, 646 S.E.2d at 186-87. For example,

the report opined that "[i]f there is a second offender, he is not

likely to be an equal partner in these crimes, and would be

subservient to the primary offender." (J.A. 2019.) Further-

more, the FBI profile explicitly notes, "This analysis is not a

substitute for a thorough, well-planned investigation, and

should not be considered all inclusive. The information pro-

vided is based upon probabilities." (Id. at 2016.) Given the

inconclusive language in the report, it cannot be considered

exculpatory, and the state court’s conclusion that there was no

Brady violation was not in error.

Second, Muhammad takes issue with the ballistics evidence

used to convict him. Among the undisclosed information, he

points to reports that the evidence recovered from the Septem-

ber 5 and September 14 shootings were too damaged to pro-

vide a conclusive ballistics match. (J.A. 2536.) He also

highlights a report from the Prince George’s County Police

Department that there was insufficient evidence to determine

whether the handgun recovered at the Alabama shooting was

that used to fire the bullets that killed the victims. (J.A. 2537.)

Finally, he points to a December 3, 2002, report that prelimi-

nary ballistics findings were inconclusive. (J.A. 2539-40.)

The district court dismissed the claims after it determined that

Muhammad failed to present them to the state court. Muham-

mad concedes that he did not present the claims to the state

court initially (Pet’r’s Br. 9-10), but he responds that the War-

den raised the issue by arguing that the suppressed evidence

was not material and that he disputed the claim.

Upon review of the portions of the record that Muhammad

cites in support of his argument that these claims were prop-

erly presented to the state court, we must rule against him.

There is no indication in the record that the government

directly presented the issue of the materiality of the undis-

closed ballistics evidence to the court. And although Muham-

mad claims to have disputed the prosecution’s ballistics

testimony in his motion for rehearing, the motion does not

14 MUHAMMAD v. KELLY

mention the ballistics reports detailed above. Thus, it appears

that Muhammad did not present these claims to the state court

and they are therefore forfeited.1

Third, Muhammad disputes evidence of his involvement in

the Parker shooting in Alabama, which was used as one of the

predicate killings for his capital charges. He claims that sev-

eral witnesses reported conflicting information, and relevant

to the undisclosed information, two witnesses who identified

someone other than Malvo at the scene were not disclosed to

him, and witnesses who reported seeing a handgun were also

not disclosed. Muhammad interprets the previously undis-

closed interviews to indicate that Clyde Wilson—who, along

with James Gray, chased after Malvo—saw Malvo point and

fire a handgun. Yet, Wilson does not actually say that he saw

a handgun; in fact, he could not specifically identify the type

of gun that he saw, but demonstrated what he saw by extend-

ing his arms straight out. (J.A. 2512.) Additionally, Muham-

mad argues that Wilson’s account could have been used to

impeach other witnesses because Wilson stated that the sus-

pect was wearing a green or turquoise shirt—different from

other descriptions given—and he could not identify Malvo in

the lineup, casting doubt on Gray’s identification. The

Supreme Court of Virginia determined that his testimony

could not have been used to impeach Gray because Wilson

saw Malvo from a different vantage point and chased Malvo

down a different route from Gray, and Gray saw Malvo face-

to-face. Moreover, because Wilson did not testify, the report

would have been of minimal use. We cannot say that the

Supreme Court of Virginia’s conclusion was unreasonable.

Further, in an undisclosed report, forensics experts in Ala-

bama had previously determined that the bullets used in the

killing were .22 caliber and likely came from a handgun.

1

We note that even if Muhammad had presented these claims, there was

other, conclusive ballistics evidence to support his convictions. Therefore,

the challenged ballistics evidence would not have been exculpatory.

MUHAMMAD v. KELLY 15

Muhammad contends that it was only after his apprehension

that the experts determined, without examining the weapon,

that the bullets came from his .223-caliber Bushmaster rifle

and not the .22-caliber handgun found nearby. But Muham-

mad’s challenges to the ballistics information were not made

in state court. Moreover, ATF firearms examiner Dandridge

made an independent conclusive match of the bullets found in

Montgomery to the Bushmaster rifle. (J.A. 713-15.) Thus,

these claims must fail.2

Fourth, Muhammad challenges additional evidence related

to the Charlot shooting in the District of Columbia, another

predicate killing for his capital murder conviction. He alleges

that the government suppressed evidence that one witness,

Gail Howard, had previously provided only a vague descrip-

tion of the car seen at the scene; did not speak to the police

until weeks after the shooting, contrary to her testimony; and

had letters written by the D.C. police to the Immigration and

Naturalization Service on her behalf in order to assuage her

fears about her immigration status. Moreover, those witnesses

who talked to the police within hours after the shooting sup-

posedly indicated that a handgun, not a rifle, was used in the

shooting.

Howard’s police statement said that the car she saw was an

"American made, big police looking car, square shape. The

same type of car people buys [sic], after the police had them.

I think it was a four door and the windows were tinted. And

the car was dark colored." (J.A. 2054B.) This description is

not vague; it accurately describes a 1990s-model Chevrolet

Caprice, which is what Muhammad drove. As for the immi-

gration letters, as the Supreme Court of Virginia noted,

Muhammad makes no allegation that Howard testified falsely,

so it is unclear how this information would prove exculpatory.

2

Muhammad makes an additional argument that the statement of one

Officer D.L. Johnson, given within days of the shooting, was not disclosed

to him, but this argument also was not made in state court.

16 MUHAMMAD v. KELLY

Regarding the statements from the other seven witnesses, only

one of them, Ayman Gomma, states that a handgun was fired,

and this was not from personal observation, but was instead

a deduction he drew from his training in the Army and the

sound that he heard. Moreover, none of them testified at trial,

and Howard’s testimony, which the witnesses would have

supposedly impeached, was corroborated by the ballistics evi-

dence. Thus, the Supreme Court of Virginia’s conclusion that

the information was not exculpatory was not incorrect.

The fifth category of evidence that Muhammad raises as

exculpatory concerns the Ballenger killing in Baton Rouge,

Louisiana, which was used as one of the predicate offenses

for the Virginia capital charges. Ingrid Shaw testified that she

saw Malvo running from the murder scene and identified

Muhammad’s Caprice as the one that Malvo entered. How-

ever, when she was first interviewed, and in two subsequent

interviews, she did not mention seeing a car parked nearby

that later picked up Malvo. When she did mention a car, she

said it could be an "Olds Cutlass," and the Louisiana license

plate number she gave was registered to a 1979 Ford LTD.

(J.A. 2496.) Presumably, this information could have been

used to impeach her testimony, and the district court found as

much. However, the district court ultimately concluded that

the information was not prejudicial because of the ballistics

evidence, her positive identification of Malvo, and the fact

that the Ballenger murder was one of several predicate kill-

ings for the capital murder charge. We can find no error in

this conclusion.

Finally, Muhammad contends that the Commonwealth

failed to disclose a series of twelve letters written by Malvo

to another inmate named "Pac-Man." These letters allegedly

contradict the Commonwealth’s position that Muhammad

directed or controlled Malvo’s acts, as required by Virginia

law in order to subject Muhammad to the death penalty. See

Muhammad v. Virginia, 611 S.E.2d 537, 553-56 (Va. 2005).

While the letters do not discuss Muhammad directly, (J.A.

MUHAMMAD v. KELLY 17

1534-43) Muhammad argues that the letters could be used to

demonstrate that Malvo was not malleable and could think

independently of Muhammad. The district court and the

Supreme Court of Virginia determined that the letters were

largely cumulative because there was trial testimony that also

indicated that Malvo could think independently. Given this,

the conclusion of the state courts in this regard was not unrea-

sonable.

Let it be clear that we by no means condone the actions of

the Commonwealth in this case. As a matter of practice, the

prosecution should err on the side of disclosure, especially

when a defendant is facing the specter of execution. When

questioned at oral argument regarding why this information

was withheld or why the Commonwealth did not take the step

of instituting an open-file policy, the Commonwealth had no

explanation. Yet, at this stage of the criminal process, we deal

only with actions that were clear violations of the Constitu-

tion. While not admirable, the Commonwealth’s actions did

not violate the Constitution. Even if the withheld evidence

were exculpatory, Muhammad cannot show that he was preju-

diced by any nondisclosure. The jury determined that he mur-

dered several people, the evidence against him in most

instances was compelling, and any number of the killings

could serve as the one predicate killing necessary for his con-

viction. See Griffin v. United States, 502 U.S. 46, 49 (1991)

("[A] general jury verdict [is] valid so long as it was legally

supportable on one of the submitted grounds—even though

that gave no assurance that a valid ground, rather than an

invalid one, was actually the basis for the jury’s action.").

Thus, we find no constitutional violation.

B.

Muhammad’s next set of claims involves his belief that his

trial attorneys were ineffective because they did not object to

his representing himself despite evidence that indicated brain

abnormalities and difficulties processing and communicating

18 MUHAMMAD v. KELLY

information. In order to establish a claim of ineffective assis-

tance of counsel, Muhammad must first "show that counsel’s

performance was deficient. This requires showing that coun-

sel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amend-

ment." Strickland v. Washington, 466 U.S. 668, 687 (1984).

Second, Muhammad must demonstrate that "the deficient per-

formance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable." Id.

Muhammad alleges that his trial attorneys were informed of

three abnormalities in an MRI taken prior to his October 20,

2003, request to represent himself: a) a shrunken cortex, b) a

cavum septum pellucidum, and c) an abnormal shortening of

the corpus callosum. The shrunken cortex shows "the loss of

vital brain tissue that control’s [sic] an individual’s ability to

analyze information, organize, control and direct his behavior

and emotions, solve problems and learn from his own experi-

ences." (Pet’r’s Br. 24.) Muhammad claims that this is the

result of severe beatings he received as a child. The cavum

septum pellucidum is a space in the brain that should close

during childhood, but Muhammad’s did not. He notes a rela-

tionship between a cavum septum pellucidum and psychoses

and schizophrenia. There is a similar relationship between

schizophrenia and a shortened corpus callosum.

Additionally, Muhammad presents a topographic display

that shows the damage to his brain, as indicated by shades of

color. (Pet’r’s Br. 27.) The display was created for his habeas

petition, but Muhammad alleges that his trial attorneys knew

the information at the time of his pro se request. Moreover,

an IQ test, the WAIS-III, indicated that his performance was

below seventy-three percent of other men his age. Dr. Doro-

thy Lewis, a psychiatrist, determined that although Muham-

mad could display a "superficial brightness," (J.A. 2549)3 he

3

Although Dr. Lewis references the period from September through

October 2003—before Muhammad’s first trial—in her declaration, the

declaration is dated December 2007 and was prepared for Muhammad’s

federal habeas proceedings below.

MUHAMMAD v. KELLY 19

was not competent to represent himself (Id.; see also J.A.

2052-54).4 Finally, Muhammad alleges that his trial attorneys

knew that he had been diagnosed with schizophrenia and

bipolar disorder. Muhammad contends that all of this evi-

dence should have led his trial attorneys to object to his repre-

senting himself and prevented them from calling him "very

bright" when the judge questioned them about Muhammad’s

ability to represent himself. (J.A. 214-15.)

Even if we assume that his attorneys should have objected

to Muhammad’s self-representation, the state and district

courts found that Muhammad did not show that he was preju-

diced, since he represented himself for only two days during

the government’s presentation of its case, and his defense

attorneys were heavily involved as standby counsel, preserv-

ing objections to the government’s evidence and attempting to

"play as full a role as the court [would] allow." (J.A. 215.)

Muhammad points only to the fact that eighteen witnesses

were presented, including the government’s sniper expert, and

that he made ramblings in front of the jury that damaged its

view of him. However, Muhammad does not point to any evi-

dence that was improperly received and considered by the

jury, or any potentially prejudicial piece of evidence. Thus,

the decision of the state courts on Muhammad’s IAC claim

was not an unreasonable application of clearly established law.5

4

Dr. Lewis’s competency evaluation, dated March 27, 2006, was pre-

pared for Muhammad’s Maryland trial, not the Virginia trial at issue,

although it was utilized during his state habeas proceedings.

5

We note that Muhammad desires us to factor into our consideration the

standard for competence to stand trial set forth in Drope v. Missouri, 420

U.S. 162, 172 (1975) (quoting Dusky v. United States, 362 U.S. 402

(1960) (per curiam)): "whether a criminal defendant ‘has sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding—and whether he has a rational as well as factual under-

standing of the proceedings against him.’" Specifically, Muhammad asks

the Court to consider whether there is a "reasonable probability . . . that,

had his trial counsel raised the issue of his competency, he would have

been found incompetent." (Pet’r’s Br. 61.)

20 MUHAMMAD v. KELLY

C.

According to Muhammad, the district court further erred

when it excluded all defense expert testimony during the pen-

alty phase of his trial as a sanction for failing to submit to an

interview by the Commonwealth’s psychiatrist. Muhammad

had planned to present the opinion of Dr. Mark Cunningham,

a psychologist who had interviewed Muhammad’s friends and

family, in order to show how his upbringing influenced his

subsequent adult actions, including the shootings at issue.

Muhammad did not plan to use Dr. Cunningham in order to

Muhammad’s claim, however, is one of ineffective assistance of coun-

sel, not mental incompetence to stand trial. The two are separate inquiries,

and Muhammad does not pursue the latter. Instead, he argues that if his

attorneys had raised the competency issue, then the judge would have pos-

sibly ordered a competency hearing, and "if examined for competency,

there is at least a reasonable probability that Muhammad would not have

been found competent to represent himself." (Pet’r’s Br. 65-66.) But even

if all of the conditions in Muhammad’s far-fetched hypothetical had been

met, the result simply would have been an inability to represent himself.

It is by no means certain that the judge would have gone further to rule

him incompetent to stand trial.

At oral argument, counsel for Muhammad contended that it was struc-

tural error to allow the appellant to represent himself while incompetent.

But again, Muhammad’s competence is not at issue, and it is unclear how

structural error should factor into our analysis at all since it would require

us to presume Muhammad to be incompetent. Indeed, it is unclear whether

a structural error even exists in the form in which Muhammad wishes to

use it. See Neder v. United States, 527 U.S. 1, 8 (1999) (noting that the

Supreme Court has "found an error to be ‘structural,’ and thus subject to

automatic reversal, only in a very limited class of cases" and listing cases

that do not encompass the present situation (internal quotation omitted)).

We would only be speculating if we were to hold that, had his counsel

objected, Muhammad (possibly) would have been found incompetent and

that, moreover, he was indeed incompetent and therefore it was structural

error to allow him to represent himself during that limited portion of his

trial in which he did so. We reject this argument and find that the Strick-

land standard alone, not in conjunction with the Drope standard, applies

to this case.

MUHAMMAD v. KELLY 21

present a psychiatric defense to his crimes. Instead, he argues,

Dr. Cunningham would have been used only in mitigation so

that he would receive life imprisonment instead of death. The

defense attorneys concluded that they could not introduce the

lay testimony without Dr. Cunningham because "only Dr.

Cunningham could provide the jury a conceptual basis for

assessing Muhammad’s moral culpability and understanding

the truly mitigating character of this evidence." (Pet’r’s Br.

41.)

The lay testimony that the defense attorneys would have

presented included accounts from Muhammad’s sister, Auro-

lyn Williams, who would have testified that their mother died

of breast cancer while they were young. The children then

moved into their grandparents’ three-bedroom house, where

they lived with twenty other people and were beaten, forced

to eat black-eyed peas separately from everyone else every

night, prevented from entering the house during the day, and

never told their birthdays until they were older. Another of

Muhammad’s sisters, Bessie Williams, would have testified

similarly. His brother, Edward Williams, would have testified

about how their uncle, Felton Holiday—a reform school

guard convicted of battery with a dangerous weapon in 1962

for beating a minor to death—constantly attacked them.

Muhammad was allegedly forced to place his hand on a spark

plug while his grandfather, Guy Holiday, pulled the cord.

According to the Supreme Court of Virginia:

Consideration of Muhammad’s arguments on these

matters requires a clear understanding of what the

trial court ruled concerning these issues. The trial

court ruled that Muhammad could not present expert

testimony on mitigation factors at sentencing

because of his refusal to abide by the trial court’s

order to submit to an evaluation by the Common-

wealth. The trial court did not bar the presentation

of non-expert testimony on this issue. Thereafter,

22 MUHAMMAD v. KELLY

Muhammad sought the ability to present limited

expert testimony purporting not to be based upon

expert interviews. The Commonwealth objected. The

trial court overruled the Commonwealth’s objection

and gave Muhammad the opportunity to present evi-

dence out of the presence of the jury that would

allow the trial court to rule on its admissibility.

Muhammad did not take advantage of this invitation.

Only after all the evidence was presented at the sen-

tencing phase and both parties rested their case did

Muhammad offer an affidavit as a proffer of Dr.

Cunningham’s testimony. He may not be heard to

complain about the exclusion of Dr. Cunningham’s

limited testimony when he did not give the trial court

the contemporaneous opportunity to evaluate its

admissibility.

Muhammad v. Virginia, 619 S.E.2d at 47 (emphasis added).

Pursuant to its Rule 5:25,6 the Supreme Court of Virginia

found that Muhammad had waived his argument about the

trial court’s failure to allow Dr. Cunningham to testify only

as to his risk for future dangerousness. Additionally, we

emphasize once more that the trial court did allow Muham-

mad to present the testimony outside of the presence of the

jury so that the court could determine its admissibility, but

Muhammad chose not to take advantage of the opportunity.

The district court found this claim therefore to be procedur-

ally defaulted, and our precedent supports this decision. E.g.,

Weeks v. Angelone, 176 F.3d 249, 270 (4th Cir. 1999).

The district and state courts also found that Muhammad

knowingly waived his right to present expert mitigation testi-

6

The Rule states: "Error will not be sustained to any ruling of the trial

court or the commission before which the case was initially tried unless

the objection was stated with reasonable certainty at the time of the ruling,

except for good cause shown or to enable this Court to attain the ends of

justice."

MUHAMMAD v. KELLY 23

mony: "Muhammad is correct that limiting the evidence that

a criminal defendant may present in his defense implicates

numerous constitutional rights. What Muhammad fails to

appreciate is that he may, by his knowing and informed deci-

sions, waive such rights." Muhammad v. Virginia, 619 S.E.2d

at 48. The trial court informed Muhammad, pursuant to Va.

Code Ann. § 19.2-264.3:1 (2003), that if he did not submit to

a psychiatric evaluation by the government’s experts, he

would not be able to present expert testimony of his own.

Muhammad indicated that he understood. (J.A. 79-80.) After

Muhammad refused to be examined by the government’s psy-

chiatrist, the trial court once again questioned him about the

consequences of his doing so, and he once again indicated

that he understood. (J.A. 170.) Thus, the state court’s determi-

nation that Muhammad waived the presentation of expert mit-

igation evidence was neither inconsistent with the facts in the

record nor contrary to clearly established law.

Muhammad believes that the outcome of this claim is gov-

erned by Eddings v. Oklahoma, 455 U.S. 104 (1982), Lockett

v. Ohio, 438 U.S. 586 (1978) (plurality), and Taylor v. Illi-

nois, 484 U.S. 400 (1988), and not by Buchanan v. Kentucky,

483 U.S. 402 (1987), which the district and state court relied

upon. In Buchanan, the Supreme Court held that "if a defen-

dant requests [a psychiatric] evaluation or presents psychiatric

evidence, then, at the very least, the prosecution may rebut

this presentation with evidence from the reports of the exami-

nation that the defendant requested." Id. at 422-23; see also

Savino v. Murray, 82 F.3d 593, 604 (4th Cir. 1996) ("When

a defendant asserts a mental status defense and introduces

psychiatric testimony in support of that defense, he may face

rebuttal evidence from the prosecution taken from his own

examination or he may be required to submit to an evaluation

conducted by the prosecution’s own expert.") The district and

state courts read Buchanan to uphold Virginia’s rule requiring

Muhammad to submit to reciprocal examination if he wanted

to present his own expert testimony. Muhammad argues, how-

ever, that he did not purport to present psychiatric evidence,

24 MUHAMMAD v. KELLY

just evidence of his "reduced moral culpability" due to his

family background. (Pet’r’s Br. 84.) However, Dr. Cunning-

ham would have performed a psychiatric evaluation on

Muhammad that could have informed his view of Muham-

mad’s background. Hence, the state also was entitled to per-

form an evaluation, and the state courts’ so holding is

reasonable in light of the Supreme Court’s decision and our

precedent.

D.

Muhammad believes that the district court erred when it did

not allow him the full 365-day statutory filing period in order

to file his habeas petition and when it limited the petition to

fifty pages. Upon subsequent motions by Muhammad, the dis-

trict court extended its original sixty-day deadline by thirty

days, raised the page limit to eighty pages, and granted

Muhammad leave to amend the petition within ninety days

from that deadline. Muhammad did as the court instructed.

Three months after the court’s deadline, but before the expira-

tion of the statute of limitations, Muhammad filed another

motion to amend along with his second amended petition,

which Muhammad contends developed his Brady claims more

extensively. The district court denied leave to amend. We

review these claims for abuse of discretion. Hill v. Ozmint,

339 F.3d 187, 193 (4th Cir. 2003).

According to 28 U.S.C. § 2244(d)(1) (2006): "A 1-year

period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judg-

ment of a State court." Muhammad cites no case law that has

found that a district court must grant a petitioner an entire

year in order to file his habeas petition. Moreover, even if we

assume that the district court erred in denying Muhammad an

entire year in which to file his petition, "the trial court’s error

must have a ‘substantial and injurious effect or influence in

determining the jury’s verdict.’" Tuggle v. Netherland, 79

MUHAMMAD v. KELLY 25

F.3d 1386, 1393 (4th Cir. 1996) (quoting Brecht v. Abraham-

son, 507 U.S. 619, 637 (1993)).

Muhammad claims that if he had been allowed the full lim-

itations period, he would have been able to produce more

inconsistent testimony, more exculpatory witness statements,

more evidence that Muhammad and Malvo were not at the

Parker shooting, evidence that a shooter in a white box truck

was responsible for the Ramos shooting (including evidence

that one Danaus Ford drove a white box truck that contained

gunshot residue and owned a .223-caliber firearm, claimed to

be God, and had unsuccessfully attempted to get into sniper

school), and he would have developed the claims in his first

amended petition at greater length. However, Muhammad’s

problem is that, given the abundance of evidence against him,

none of these things likely would have resulted in a different

outcome, and thus he can show no prejudice. Therefore, any

error in denying Muhammad the full statutory period in which

to file his petition was harmless.

E.

Finally, Muhammad argues that the district court erred in

not providing him with expert assistance or with an evidenti-

ary hearing to develop his claims of ineffective assistance of

counsel and incompetence. According to the district court,

"the record, viewed in light of the forecasted evidence, would

not entitle the petitioner to an evidentiary hearing on his

claims, nor would the petitioner be able to win on the merits

regardless of the experts’ findings." (J.A. 2987.) The district

court is given discretionary authority to provide for expert

assistance by 18 U.S.C. § 3599(f) (2006):

Upon a finding that investigative, expert, or other

services are reasonably necessary for the representa-

tion of the defendant, whether in connection with

issues relating to guilt or the sentence, the court may

authorize the defendant’s attorneys to obtain such

26 MUHAMMAD v. KELLY

services on behalf of the defendant and, if so autho-

rized, shall order the payment of fees and expenses

therefor . . . .

Moreover, 28 U.S.C. § 2254(e)(2) provides:

If the applicant has failed to develop the factual basis

of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless

the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made

retroactive to cases on collateral review

by the Supreme Court, that was previ-

ously unavailable; or

(ii) a factual predicate that could not

have been previously discovered through

the exercise of due diligence; and(B) the

facts underlying the claim would be suf-

ficient to establish by clear and convinc-

ing evidence that but for constitutional

error, no reasonable factfinder would

have found the applicant guilty of the

underlying offense.

Given the foregoing discussion of Muhammad’s IAC and

incompetence claims, and the deficiencies therein, the district

court’s decisions to deny further expert assistance and to deny

Muhammad an evidentiary hearing were not abuses of discre-

tion. See Wright v. Angelone, 151 F.3d 151, 163 (4th Cir.

1998).

IV.

After a full review of the record and Muhammad’s claims,

we conclude that we must affirm the decision of the district

MUHAMMAD v. KELLY 27

court. Muhammad’s petition for a writ of habeas corpus is

hereby denied.

AFFIRMED