Appendix — Williams v. Taylor

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In The

Supreme Court Of The Unites States

OCTOBER TERM, 1999

MICHAEL WAYNE WILLIAMS,

Petitioner,

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

JOHN B. TAYLOR, WARDEN,

AT THE TIME OF FILMING. IF AND WHEN A SUSSEX I STATE PRISON,

BETTER COPY CAN BE OBTAINED, A NEW FICHE Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

WILL BE ISSUED.

COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Barbara L. Hartung James E. Moore

ATTORNEY AT LAW CHRISTIAN & BARTON, L.L.P.

1001 East Main Street 909 East Main Street

Suite 504 Suite 1200

Richmond, Virginia 23219 Richmond, Virginia 23219

(804) 649-1088 (804) 697-4100

Counsel for Petitioner Counsel for Petitioner RECEIVED

Oct 18 1999

5 THE CLERK

Lawyers Printing & Research, Inc. 70] E. Franhin Street, Richmond, VA 23219 of ot Sagoo y.S.

158 Pe

TABLE OF CONTEN

Appendix Page

Williams y. Taylor, No. 99-1, Order Denying Petition for

Rehearing and Rehearing En Banc (4th Cir. August 27, 1999)....... 1

Williams v. Taylor, _F.. 3d , No. 99-1, Opinion On Appeal

C4B Cie. Asmaet 3, GSP) ccccccsincncsscvitinnecctteinibnissnanttinaiudhaidoninpiuntetiiiiianes 2

District Court Order and Memorandum Vacating Hearing Order

and Dismissing Petition (Jume 3, 1998) ............c00ccscccsessersessesserseees 9

In Re: Fred W. Greene, Warden, No. 98-17, Order Granting

Emergency Stay of Proceedings (4th Cir. May 27, 1998).............. 20

District Court Order and Memorandum Granting a Hearing and

Dismissing Remaining Claims (April 13, 1998)..............s0esessesseees 23

District Court Order on Motion for Expert Assistance (October 31,

SIGE) cnicccossnavescventunensiitcisaniianiissnphapesteandnantisnaisisitisiaiensatepntiaiinicbeascsstiiit 119

District Court Order Granting Adversarial Hearing on Motion for

Expert Assistance (October 7, 1996).........:.ssssssssssssessessesessseceees 120

District Court Order Staying Order Granting Expert Assistance

(September 18, 1996) ........cccccccsssccecesovscnescscssossscsccsbossocssocsocovevenscees 121

District Court Order Granting Ex Parte Motion for Expert

Assistance (September 5, 1996)............cssssscccssssssscssssesceeeessscceeeees 122

Williams v. Warden, Supreme Court of Virginia Order Denying

State Habeas Petition (March 18, 1996) ............cccssssssssessssseseeeeess 123

Williams v. Commonwealth, Supreme Court of Virginia, Order

Denying Petition for Rehearing (January 13, 1995).............s0000. 125

Williams v. Commonwealth, 450 S.E.2d 365 (Va. 1994).........cc0csseesees 126

Commonwealth y. Williams: Trial Transcript Excerpts...........--0++ 141

Selected Voir Dire of Juror Stinmett ...............ccccsssceseeessrersssenneeees 142

Opening Cross Examination of Michael Williams ...............+-.+++++ 147

Excerpts from Summation by Prosecutor ..........csesseeerseereeeeeees 151

Statutes:

21 U.S.C. 848 (q) (9) (amended 1996) ..........:ccceeseesreeeerressereesenees 154

28 U.S.C. sec. 2254 (€) ..cecrcccscsrsccssscssccsrsrescrecccssssccsssescssnsssssssssssnness 155

riw.scs “wits

\CAITED STATES COURT OF APPEAL™ ~

OURTH CIRCUIT

FOR THE F ae

August 27, 1999

No. 99-1

CA-96-529-3

MICHAEL WAYNE WILLIAMS

Petitioner - Appellant

Vv.

JOHN B. TAYLOR. Warden, Sussex I State Prison

Respondent - Appellee

On Petition for Rehearing and Rehearing En Banc

The appellant’s petition for rehearing and rehearing en banc

was submitted to this Court. As no member of this Court or the panel

requested a poll on the petition for rehearing en banc, and

AS the panel considered the petition for rehearing and is of

the opinion that it should be denied,

{T IS ORDERED that the petition for rehearing and rehearing en

bane is denied.

eo Che Ceest.

/s/ Patricia S. Connor

CLERK

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Page 4

1999 U.S. App. LEXIS 18038, *3

the way out of the house Williams informed Mrs. Keller

that he planned to burn the house. Upon Mrs. Keller's

request, Williams accompanied her back inside to get

the Kellers’ marriage license.

With Williams carrying the .38 and Cruse the .357,

the two men walked the Kellers down a dirt road and

into a thicket. Williams then took up a position directly

behind Mr. Keller and Cruse stood behind Mrs. Keller.

Williams said, “We'll shoot at the count of three.” At

the count of three, Williams shot Mr. Keller, who fell

to the ground. Cruse did not fire. Williams turned to

Cruse and told him to shoot. After Cruse shot and Mrs.

Keller fell, Mr. Keller stood up again. Williams then

shot him a second time. As Cruse began to walk away,

[*4] Williams said, “Wait. . . . What if they ain't

dead?” Williams then approached the Kellers and shot

each a few more times.

Williams and Cruse next returned to the house, where

they loaded the Kellers' Jeep Cherokee with their tele-

vision set, microwave oven, stereo and speakers. and

shotgun. After loading the Cherokee, the two men set

fire to the house.

The next day Williams and Cruse sold some of the

property they had taken from the Kellers. They then

threw the remaining property and the .357 into the

Rappahannock River and set fire to the Cherokee.

When James heard about the fire at the Kellers’ house,

she contacted the police and informed them that she had

deposited Williams and Cruse near the house on the night

of the fire. The police interviewed Cruse, who was un-

responsive until the police located the bodies of Mr. and

Mrs. Keller.

Afier consulting counsel, Cruse agreed to a plea bar-

gain pursuant to which he would cisclose his know!-

edge of the crimes in exchange for a promise from the

Commonwealth not to seek the death penalty. Cruse then

gave a statement in which he explained the events of the

fateful night in detail, with the exception of Cruse's own

participation in the [*S) rape of Mrs. Keller. Upon

learning of Cruse's falsehood, the Commonwealth re-

voked its plea agreement with Cruse and later indicted

him for capital murder.

Williams was indicted for the capital murder, robbery,

rape. and abduction of Mrs. Keller; for the capital mur-

der. robbery, and abduction of Mr. Keller; for capital

murder based on two related homicides; statutory bur-

giary; and arson. At trial in January 1994, Williams

took the stand in his own defense. He confirmed signif-

icant parts of the Commonwealth's case. In particular.

he indicated that he was the one who suggested robbing

the Bear Creek Market, that it was his suggestion to set

fire to the Kellers’ house, and that he shot Mr. Keller

in the head. He contradicted portions of the evidence

presented against him, most of which was in the form of

testimony by Cruse. Specifically, he denied that he also

raped Mrs. Keller, that he fired any shots other than the

first one, and that he was the instigator at various other

points during the commission of the crimes.

The jury convicted Williams of capital murder. It

then recommended the death sentence on the basis of

Williams’ future dangerousness and the vileness of his

crimes. The (*6) trial court agreed with the jury's

recommendation and sentenced Williams to death. The

Supreme Court of Virginia affirmed the conviction and

sentence, Williams v. Commonwealth, 248 Va. 528, 450

S.E.2d 365 (Va. 1994), and the United States Supreme

Court denied certiorari, Williams v. Virginia, 515 U.S.

1161, 132 L. Ed. 2d 858, 115 S. Ct. 2616 (1995).

Williams then filed a petition for state habeas and

moved for discovery, an evidentiary hearing, and ex-

pert assistance. The Supreme Cour of Virginia denied

tion that Williams’ claims were meritless. The United

v. Netherland, 519 U.S. 877, 136 L. Ed. 2d 136, 117

S. Ct. 200 (1996).

Next, Williams filed a petition for habeas corpus in

the United States District Court for the Eastern District

of Virginia. The district court granted Williams an ev-

identiary hearing on three of his claims and dismissed

the rest. Because Williams filed his petition after the

effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214, this [*7] cour entered a stay and in-

structed the district court to reconsider its grant of an

evidentiary hearing in light of 28 U.S.C. § 2254(e) as

amended by that Act. After applying the AEDPA, the

district court denied Williams’ request for an eviden-

iary hearing and dismissed his petition in its entirety.

Williams now appeals.

Il.

Williams maintains he was entitled to an evidentiary

hearing in the district court to establish several claims.

Two of those claims arise under the Sixth Amendment.

First, Williams claims that one of the jurors failed

to answer honestly questions put to her on voir dire.

See United Siates v. Bynum, 634 F.2d 768 (4th Cir.

1980). Specifically, Williams contends that juror Bonnie

Stinnett failed to disclose that she had once been mar-

ned to Deputy Sheriff Claude Meinhard -who would tes-

tify for the Commonwealth -- when Stinnett was asked

whether she was related to any witness in the case.

Page 5

1999 U.S. App. LEXIS 18038, *7

Williams also maintains that Stinnett withheld the fact

that prosecutor Robert Woodson had represented her in

the prosecutor improperly failed to correct the dishon-

est juror. Williams [*8) argues that Woodson failed to

disclose both of these pieces of information and thereby

violated his right to a fair trial. See United States v.

Kojayan, 8 F.3d 1315 (9th Cir. 1993).

With respect to his other claim, Williams maintains

that the Commonwealth failed to provide him with excul-

Patory evidence as required under Brady v. Maryland.

373 U.S. 83, 1OL. Ed. 2d 215, 83 S. Ct. 1194 (1963).

In particular, Williams claims that the Commonwealth

failed to disclose a psychiatric evaluation that indicated

Cruse had little specific recollection of the events sur-

rounding the Keller murders.

The district court denied Williams an evidentiary hear-

ing 07 these claims. Section 2254(e)(2) provides:

(2) If the applicant has failed to develop the factual ba-

sis 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 previously unavailable: or

(ti) a factual predicate that could not have been previ-

ously discovered through [*9] the exercise of due dili-

gence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable fact finder would have

found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). The district cour held

that whatever else Williams could show, he could not

demonstrate actual innocence as required by section

2254(e)(2)(B).

Williams argues that the district court erred in apply-

ing section 2254(e)(2) to his request at all. He maintains

that section 2254(e)(2) applies only when the petitioner

“has failed to develop the factual basis of a claim in

State court.” Id. (emphasis added); see also Cardwell v.

Greene, 152 F.3d 331, 337 (4th Cir.), cert. denied, /42

L. Ed. 2d 491, 119 S. Ct. 587 (1998). According to

Williams, he did not “fail” to develop the factual foun-

dation for any of these claims in state court. Williams

argues that he had no way of knowing the specific facts

underlying his claims. This is especially true, Williams

maintains, because the Supreme Cour of Virginia de-

nied his requests for discovery, [*10] a hearing, and

expert and investigative assistance. Williams contends.

therefore, that section 2254(e)(2) should not apply to his

request for a hearing in district court.

We disagree. To escape the requirements of section

2254(e)(2), a petitioner must “diligently . . . develop

the factual basis of” his claim in state cour. Cardwell,

152 F.3d at 337; see also Wright v. Angelone, 15] F.3d

151, 164 (4th Cir. 1998) (in order to obtain evidentiary

hearing petitioner must show “why the factual predicate

for this claim could not have been discovered earlier”).

Ignorance in and of itself is not sufficient to show dili-

gence; that ignorance must be reasonable. See Coleman

v. Thompson, 50] U.S. 722, 753, 115 L. Ed. 2d 640,

111.5. Ct. 2546 (1991) (to be excused, legal basis of

a claim must not be reasonably available). Nor may a

petitioner's requests for investigative assistance, hear-

ings, and discovery on state habeas be vague and con-

clusory. Rather, a petitioner must tie his requests to his

specific claims and state with some particularity the need

for assistance. To hold otherwise would permit crimi-

nal defendants to avoid the strictures [11] of section

2254(e)(2) simply by churning out unsupported. boil-

erplate requests for state court discovery, hearings, and

investigative and expert assistance.

Williams clearly has not “diligently sought to develop

the factual basis of” his claims for federal habeas relief.

Cardwell, 152 F.3d at 337. The documents supporting

Williams’ Sixth Amendment claims have been a matter

of public record since Stinnett's divorce became final in

1979. Indeed, because Williams’ federal habeas counse!

located those documents, there is little reason to think

that his state habeas counsel could not have done so as

well. Williams’ request for investigative assistance was

also deficient. He alluded vaguely to “irregularities, im-

proprieties and omussions” with regard to jury selection

and asked for an investigator to examine “all circum-

stances relating to the empane!ment of the jury and the

jury's consideration of the case.” This request in no way

alerted the state habeas court to any specific claim. See

Picard v. Connor, 404 U.S. 270, 275, 30L. Ed. 2d 438,

92 S. Ct. 509 (1971) (“lt would be unseemly in our dual

system of government for a federal district court to upset

{*12) a state court conviction without an opportunity to

the state Courts to correct a constitutional violation.” (in-

ternal quotation marks omutted)). The failure to develop

the Sixth Amendment claims was thus attributable to pe-

tutioner, not to the Supreme Court of Virginia's rejection

of a fishing expedition request.

Page 6

1999 U.S. App. LEXIS 18038, *12

The same is true of Cruse's psychiatric evaluation. In

support of his claim that the Commonwealth suppressed

the evaluation, Williams provides nothing more than an

affidavit from his state habeas counsel attesting to “no

recollection of seeing this report in Mr. Cruse’s court

file.” In light of the fact that Williams’ federal habeas

counsel located the evaluation in this very file, state

habeas counsel's failure to see the report is insufficient

to demonstrate diligence. Indeed, that failure tends to

show that counsel! did not act diligently.

Thus, it is clear that section 2254(e)(2) applies to

Williams’ request for a hearing. It is equally clear that

Williams is ineligible for a hearing in federal court under

this section. To be eligible, Williams must be able to

demonstrate both due diligence and that “but for (the

alleged] constitutional error, no reasonable factfinder

[*13] would have found [him] guilty of the underly-

ing offense.” 28 U.S.C. § 2254(e)(2)(A)(ii)-(B).

The discussion above makes plain that Williams was

not duly diligent. Nor can Williams show that no rea-

sonable factfinder would have found him guilty of cap-

ital murder. At trial Williams himself testified that he

robbed the Kellers at gunpoint, was at least an accom-

plice to the rape of Mrs. Keller, and was the first person

to shoot Mr. Keller in the head. The Commonwealth's

Assistant Chief Medical Examiner, who performed the

autopsy on Mr. Keller, testified that each gunshot

wound suffered by Mr. Keller contributed to his death.

Moreover, although Williams denied that he raped Mrs.

Keller, tests on seminal fluid retrieved from her body

revealed that some of the fluid could be attributed only

to Williams.

Under Virginia law, this evidence was more than suf-

ficient to convict him of capital murder. See Strickler

v. Commonwealth, 24] Va. 482, 404 S.E.2d 227. 235

(Va. 1991) (“We adhere to the view that where two or

more persons take a direct part in inflicting fatal injuries,

each joint participant is an ‘immediate perpetrator’ for

the purposes of the [14] capital murder statutes.*):

Briley v. Commonwealth, 22] Va. 563, 273 S.E.2d

57, 63 (Va. 1980) (holding that it is only necessary to

prove that defendant was immediate perpetrator in the

murder and accomplice in the rape to convict of capi-

tal murder). In sum, it is not surprising that the district

court found that based “on this evidence alone, Williams

cannot demonstrate by ‘clear and convincing evidence’

that no reasonable juror would have found him guilty of

the capital murder of Mr. Keller,” that “Williams can-

not make the requisite showing of ‘innocence’ under 28

U.S.C. § 2254(e)(2),” and that “he is not entitled to an

evidentiary hearing on his remaining claims.”

Even were section 2254 not to apply, Williams would

be unable to show his eligibility for a hearing under pre-

AEDPA law. See Cardwell, 152 F.3d at 337 ("If. on

the other hand, the applicant has not ‘failed to develop’

the facts in state court, the district court may proceed to

consider whether a hearing is appropriate, or required

under [pre-AEDPA law ]."). Williams can show neither

cause for nor prejudice from his failure to raise the afore-

mentioned Sixth [*15] Amendment and Brady claims in

state court. See Keeney v. Tamayo-Reyes, 504 U.S. 1,

118 L. Ed. 2d 318, 112 S. Ct. 1715 (1992).

To demonstrate cause, Williams must establish that

*'some objective factor external to the defense impeded

counsel's efforts."" McCleskey v. Zant, 499 U.S. 467.

493, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991) (quot-

ing Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d

397, 106 S. Ct. 2639 (1986)). As noted, Williams’ fail-

ure to develop the facts in state court was due to his own

lack of diligence. Williams neither brought forth rea-

sonably available facts, nor made reasonable efforts to

convince the Supreme Court of Virginia that additional

discovery was warranted.

Williams is also unable to demonstrate prejudice. In

order to do so, he must show that, absent the alleged

constitutional violation, the outcome of the case likely

would have been different. See Carrier, 477 U.S. at

494. As we have indicated, Williams’ trial testimony

alone was enough to convict him. See Fitzgerald v.

Greene, 150 F.3d 357, 366 (4th Cir.) (finding no ac-

tual prejudice based on overwhelming evidence [*16]

of guilt, future dangerousness, and vileness of crime),

cert. denied, /42 L. Ed. 2d 321, 119 S. Ct. 389

(1998). Moreover, Williams’ claims with respect to

juror Stinnett were marginal. It is hardly clear that

Stinnett was related to Deputy Sheriff Meinhard given

that the two divorced some fifteen years before Williams’

trial. Furthermore, Meinhard's testimony was brief and

did not speak to the critical facts of the trial. In fact,

Williams’ tral attorneys saw no need to cross-examine

him. And the prosecutor explained his failure to notify

the court of the relationship in an affidavit in which he

stated that he simply did not remember being involved in

Stunnett's divorce -- a plausible claim given that the di-

vorce occurred fifteen years prior to Williams’ trial and

was uncontested. Finally, it is anything but clear that

a divorce from one of the Commonwealth's witnesses

would predispose a juror toward the Commonwealth's

case.

For all of these reasons, the district court properly

denied Williams’ request for an evidentiary hearing.

Il.

Page 7

1999 U.S. App. LEXIS 18038, *16

Williams next challenges the district court's dismissal

of two claims on which the Supreme Court of Virginia

found against Williams [*17] on the merits. We review

decisions by state courts on the merits of a claim under

section 2254(d). Section 2254(d) provides that:

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State cour proceedings

unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or in-

volved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Coun

of the United States; or

(2) resulted in a decision that was based on an unreason-

able determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d). Under normal circumstances, sec-

tion 2254(d)(1) prohibits the issuance of the writ unless

the state court decision conflicts squarely with Supreme

Court precedent which is controlling as to law and fact,

or if no such precedent exists, if “the state court's reso-

lution of a question of pure law rests upon an objectively

unreasonable derivation of legal principles from the rel-

evant supreme [*18] court precedents, or if its decision

rests upon an objectively unreasonable application of es-

tablished principles to new facts.” Green v. French, 143

F.3d 865, 870 (4th Cir. 1998), cer. denied, 142 L. Ed.

2d 698, 119 S. Ct. 844 (1999). Where, as here, “the

state court decision fails to articulate any rationale for

its adverse determination . . . [we] must independently

ascertain whether the record reveals a violation of [pe-

tutioner’s constitutional rights.]” Cardwell, 152 F.3d at

339. Nonetheless an overal! obligation of deference to

the state court system stil] obtains, and a state court's

perfunctory decision both constitutes an adjudication on

the merits, see Wright v. Angelone, 15] F.3d 151, 156-

57 (4th Cir. 1998), and must be upheld if it “is at least

minimally consistent with the facts and circumstances of

the case.” Weeks v. Angelone, 176 F.3d 249, 259 (4th

Cir. 1999) (internal quotation marks omitted). Here that

standard of minimal consistency was more than met.

Williams first claims that the prosecution sup-

pressed an alleged informal plea agreement that the

Commonwealth had with [*19] Cruse in violation of

Brady . The Supreme Cour of Virginia was cor-

rect, however, to reject Williams’ claim. In state court

the Commonwealth supplied two affidavits -- one from

Woodson and one from Cruse's trial counsel, Donald

Blessing -- stating unequivocally that Cruse had no

agreement. Specifically, Woodson swore, “At the time

Cruse testified against Williams in January of 1994,

he had no plea agreement. Cruse testified truthfully

that there was no plea agreement and that he remained

charged with capital murder and subject to the death

penalty.” Similarly, Blessing stated, “Cruse testified

truthfully at . trial that he had no piea agree-

ment, that he remained charged with capital murder for

the Cumberland offenses, and that he was subject to a

possible death sentence.”

Moreover, before the district coun, the

Commonwealth introduced another affidavit from

Blessing, in which he swore, “At the time Cruse

testified against Williams in Cumberland County, he

had no agreement or understanding, formal or informal,

with the Commonwealth.” The district court thus

properly credited the state court's judgment, and there

is no reason for federal courts to revisit the state court's

(*20] determination in a federal hearing in view of the

unrefuted evidence. See Eaton v. Angelone, 139 F.3d

990, 995 (4th Cir.) (refusing to transform “a federal

habeas proceeding into a second trial.”), cert. denied,

14] L. Ed. 2d 709, 118 S. Ct. 2338 (1998); Spencer v.

Murray, 18 F.3d 229 (4th Cir. 1994) (upholding denial

of habeas corpus on basis of trial counsel's affidavit);

Sawyers v. Collins, 986 F.2d 1493, 1504 (Sth Cir.

1993) (en banc) (upholding denial of habeas corpus

without evidentiary hearing even when state court made

factual determination solely on basis of affidavits).

Finally, even if Williams could demonstrate that Cruse

had an informal plea agreement. he could not show ma-

teriality. See Kvies v. Whitley, 514 U.S. 419, 131] L.

Ed. 2d 490, 115 S. Ct. 1555 (1995) (demonstration of

a Brady claim requires a showing of materiality). Given

Williams’ own testimony that he was at least an accom-

plice in the rape of Mrs. Keller and that he shot Mr.

Keller in the head, we are confident there is no “reason-

able probability that, had the evidence been disclosed to

the defense, the result of the proceeding [21] would

have been different.” Jd. at 433-34 (quoting United

States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 48],

105 S. Ct. 3375 (1985) (opinion of Blackmun, J.)). As

a result, we agree that Williams failed to demonstrate a

Brady violation.

Williams next argues that the prosecutor violated his

Sixth Amendment right to be present at trial and to con-

front adverse witnesses. See /ilinois v. Allen, 397 U.S.

337, 25 L. Ed. 2d 353, 90S. Ct. 1057 (1970) (Sixth

Amendment right to be present at trial); Pointer. Texas,

Page 8

1999 U.S. App. LEXIS 18038, *21

380 U.S. 400, 13 L. Ed. 2d 923, 85S. Ct. 1065 (1965)

(Sixth Amendment right to confront prosecution's wit-

nesses). Specifically, Williams charges that prosecutor

Woodson impermissibly burdened those rights when, on

cross-examination, he asked Williams, “You're the only

witness who has sat in here through this trial and heard

the testimony of every witness before you got to tes-

tify; isn't that correct?" nl We need not decide whether

allowing the prosecutor to proceed with this line of ques-

tioning was constitutional error because even if it were,

the error was harmless. See Sherman v. Smith, 89 F.3d

1134, 1137 (4th Cir. 1996) [*22] (en banc) (noting

that harmless error analysis applies to similar trial er-

rors such as improper comment on defendant's silence at

trial). Woodson's line of questioning was Clearly aimed

at impeaching Williams’ testimony in the eyes of the

jury.

n1 Indeed, the Supreme Court has recently granted

certiorari on this very question. Portuondo v. Agard,

143 L. Ed. 2d 346, 119 S. Ct. 1248 (1999).

Such impeachment, however, would only have un-

dermined Williams’ exculpatory testimony, leaving un-

affected his inculpatory testimony. And, as noted,

Williams’ inculpatory testimony was devastating. In

such circumstances, it is clear that the error, if that it

was, did not have a “substantial and injurious effect or

influence in determining the jury's verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637, 123 L. Ed. 2d 353,

113 S. Ct. 1710 (1993) (internal quotation marks omit-

ted).

Williams’ claim is similarly unavailing under pre-

AEDPA law. Whether or not we would determine in-

dependently that [*23] Woodson's question violated

Williams’ Sixth Amendment rights. it is clear that such

a holding would create a new rule. See Teague v. Lane,

489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060

(1989). Williams points to Griffin v. California, 380

U.S. 609, 14L. Ed. 2d 106, 85S. Ct. 1229 (1965), and

Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed. 2d 358,

92 S. Ct. 189] (1972), to suppor his claim. In Griffin,

the Supreme Coun established that drawing a negative

inference from the fact that a defendant has exercised

his right to remain silent violates his Fifth Amendment

rights. 380 U.S. at 613. In Brooks, the Cour held that

requiring a defendant to testify first or not to testify at

all also impermissibly burdened his Fifth Amendment

right to remain silent. 406 U.S. at 6/3. Neither de-

cision held that it is constitutionally impermissible to

impeach the defendant's testimony if he decides not to

remain silent by commenting on his singular ability to

hear the entirety of the preceding witnesses’ testimony.

Indeed, the Court in Brooks was careful to recognize

the “risk of a defendant's coloring his testimony [*24)

to conform to what has gone before” and to stress that

“our adversary system reposes judgment of the credibil-

ity of al] witnesses in the jury.” Jd. at 6//. In shor,

we cannot hold that either Griffin or Brooks “dictates” a

finding of constitutional error in circumstances such as

these. Stringer v. Black, 503 U.S. 222, 228, 117L. Ed.

2d 367, 112 S. Ct. 1130 (1992).

The district court correctly denied Williams’ requests

for relief on these two claims.

IV.

Williams next argues that the district court misinter-

preted 2/ U.S.C. § 848(q)(9). Section 848(q)(9) governs

the granting of expert assistance to indigent prisoners in

connection with their federal habeas proceedings, pro-

viding that

Upon a finding that investigative, expert, or other ser-

vices are reasonably necessary for the representation of

the defendant, whether in connection with issues relat-

ing to guilt or the sentence, the court may authorize the

defendant's attorneys to obtain such services on behalf

of the defendant and, if so authorized, shall order the

payment of fees and expenses therefor under paragraph

(10). No ex parte proceeding, communication, [*25] or

request may be considered pursuant to this section un-

less a proper showing is made concerning the need for

confidentiality . Any such proceeding, communication,

or request shall be transcribed and made a part of the

record available for appellate review.

Id. (emphasis added).

Williams contends that the district court erred in inter-

preting this section to require Williams to show a need

for confidentiality in an adversary hearing. When the

district court made that determination, Williams refused

to participate in an adversary hearing. and the district

court denied his request for exper assistance.

We agree with the district cour. In limiting ex parte

requests for expert assistance, Congress was clearly ad-

dressing the routine approval of such requests even in

those instances where experi or investigative services

were unnecessary. Section 848(q)(9) explicitly provides

that there shall be no “ex parte. . . communication. . .

pursuant to this section” without a showing of a need for

confidentiality. Id. Allowing an ex parte hearing to de-

termine the need for an ex parte hearing not only seems

convoluted, but it also runs afoul of the plain language

Page 9

1999 U.S. App. LEXIS 18038, *25

[*26) of the statute. See United States v. Gonzales, 150

F.3d 1246, 1264 (10th Cir. 1998) (process is one that

“is not to be held ex parte unless a proper showing is

made concerning the need for confidentiality.” (emphasis

added) (internal quctation marks omitted)), cert. denied

sub nom. Albuquerque Journal v. Gonzales, 142 L. Ed.

2d 915, 119 S. Ct. 918 (1999); Patrick v. Johnson,

37 F. Supp. 2d 815, 816 (N.D. Tex. 1999) ("Section

848(q)(9) clearly requires ‘a proper showing . . . con-

cerning the need for confidentiality’ before the Court

may consider any ex parte communication or request.”

(emphasis added) (quoting 2/ U.S.C. § 848(q)(9))).

The district court also rightly denied Williams’ re-

quest for expert assistance. When Williams refused to

proceed after the district court required him to demon-

strate his need for confidentiality in an adversary hear-

ing, he necessarily failed to show that expert services

were “reasonably necessary.” 2] U.S.C. § 848(q)(9). n2

n2 We are unpersuaded by Williams’ argument

that our interpretation of section 848(q)(9) renders

it unconstitutional. Williams’ sole contention is that

any reading of section 848(q)(9) that requires a peti-

tioner to divulge confidential information impermis-

sibly impinges on his right of access to the courts.

See Gardner v. California, 393 U.S. 367, 21 L.

Ed. 2d 601, 89 S. Ct. 580 (1969) (requiring that

hearing transcripts that are made available to all be

provided to indigen: habeas petitioners to guarantee

access to the courts). We do no more here than up-

hold the district court's determination that petitioner

must demonstrate his need for confidentiality at a

hearing. What information is disclosed at that hear-

ing would of course remain within the discretion of

the district court.

[*27]

Finally, Williams argues that the district court erred

by requiring him to file his federal habeas petition within

180 days of April 24, 1996 -- the AEDPA's enactment

date -- pursuant to 2/ U.S.C. § 2263. Williams contends

that section 2263 applies only to “opt-in” states -- those

States that have met certain requirements pertaining to,

inter alia, the appointment and compensation of counse!

for postconviction relief proceedings. Because this cir-

cuit has not yet recognized Virginia as an “opt-in” state,

Williams contends that applying section 2263 was error.

Instead, Williams maintains, the district court should

have granted him one year from the effective date of the

AEDPA to develop his petition further. See Brown vy.

Angelone, 150 F.3d 370, 375 (4th Cir. 1998) (graming

petitioners whose convictions became final in a non-opt-

in state before the effective date of the AEDPA one year

from the effective date to file their petitions).

Any error here was harmless. Williams’ case re-

mained in district court for a year and a half after he filed

his petition. Yet Williams made not one motion to amend

on the basis of claims developed during [*28] the pe-

tition's pendency. Furthermore, although Williams re-

quests a remand for an additional five months in which

to amend his petition now, he provides no additional

claims he might like to add. In all events, Williams can-

not demonstrate that the district court's error prejudiced

him.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

aoe a

il.

—

- ne eo ee

IN THE UNITED STATES DISTRICT COURT i euine 38S . | Let the Clerk send a copy of this Order and the accompanying

OE ae x:

POR THE green wags one es CLERK US. D: my | F Memorandum to all counsel of record.

MICHAEL WAYNE WILLIAMS,

Petitioner, : F

) Civil Action ALLL Nike,

v No. 3:96CVS529 UNITED STATES DISTRICT/QUDSE

J.D. NETHERLAND, WARDEN . DATE: June 3, 1998

Respondent. )

)

QRDER

Upon due consideration, for the reasons stated in the

Memorandum this day filed, and deeming it just and proper so to

do, it is hereby ADJUDGED and ORDERED that:

(1) The Court’s Order, dated April 13, 1998, granting an

evidertiary hearing on Claims I(A), IV(A) (1), and

IV(A) (5) is VACATED;

(2) Petitioner’s federal habeas petition is DISMISSED

in its entirety;

(3) Respondent’s Motion For Summary Judgment is DENIED

AS MOOT;

(4) At the expiration of thirty (30) days, unless an appeal

has been filed, let the Clerk return to the appropriate

repository such records as the Court has received in

reference to this cause;

‘S) This action is dismissed with prejudice; and

(6) All remaining motions not previously ruled on by the

Court are DENIED AS MOOT.

1670 1671

A9 | A1i0

IN THE UNITED STATES DISYRICT COURT ot

POR THE EASTERN DISTRICT OF VIRGINIA JUN = 3 [998

RICHMOND DIVISION

MICHAEL WAYNE WILLIAMS,

)

Petitioner, )

) Civil Action

“A ) No. 3:96CV529

)

J.D. NETHERLAND, WARDEN, )

)

Respondent. )

)

MEMORANDUM

This matter is before the Court on remand from the United

States Court of Appeals for the Fourth Circuit. For the reasons

which follow, the Court concludes that Petitioner Michael Wayne

Williams (“Williams”) is not entitled to an evidentiary hearing

on Claims I(A), IV(A) (1), amd IV(A) (5). Accordingly, the Court

will VACATE its Order granting Williams an evidentiary hearing on

these claims, and DISMISS Williams’ federal habeas petition in

its entirety.

On April 13, 1998, this Court dismissed the majority of

Williams’ federal habeas claims, but granted an evidentiary

hearing on Claims I(A), IV(A) (1), and IV(A) (5). Respondent J.D.

Netherland, Warden of Mecklenberg Prison (“Respondent”),

subsequently moved for summary judgment, arguing that this Court

1672

Ail

CERKUS Gain Eiiol

PICH' 34) Va WA,

a aes

;

misapplied applicable federal law. The Court heard argument on

the motion and took the matter under advisement. Respondent then

moved the Court for a stay of its Order requiring the evidentiary

hearing, pending resolution by the Fourth Circuit of an

Application For Emergency Stay and a Petition For A Writ Of

Mandamus And Prohibition which Respondent filed the next day. On

May 27, 1998, the Fourth Circuit granted Respondent’s Application

For An Emergency Stay and remanded the matter for further

proceedings.’

II.

A. Applicability of 42 U.S.C. § 2254 (e) (2)

In remanding the matter, the Fourth Circuit directed this

Court to apply the requirements of 28 U.S.C. § 2254(e) (2) in

evaluating whether Williams is entitled to an evidentiary hearing

on his claims. See CA4 Stay Order (May 27, 1998) at 2. A

section 2254 petition is ordinarily limited to the factual record

developed in state court proceedings, as the amended section

2254(e) (2) limits a petitioner’s ability to present evidence ina

federal habeas proceeding that was not considered by the state

2 The Fourth Circuit withheld ruling on Respondent's

Petition For A Writ Of Mandamus And Prohibition until this Court

d Williams’ entitlement to an evidentiary hearing under

reevaluate

Death Penalty Act ("AEDPA”).

the Antiterrorism and Effective

1673

Ai2

court.

Specifically, section 2254(e) (2), as amended, provides that

a petitioner may not present evidence in a federal habeas

proceeding that _ not considered by the state court if the

petitioner “failed to develop the factual basis of a claim in

State court proceedings.” 28 U.S.C. § 2254(e) (2). In addition,

a petitioner is only entitled to an evidentiary hearing if:

(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 previously

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 sufficient

to establish by clear and convincing evidence that

but for constitutional error, no reasonable fact

finder would have found the applicant guilty of

the underlying offense.

28 U.S.C. § 2254 (e) (2).

While the Fourth Circuit has not yet addressed the

applicability or meaning of section 2254(e) (2), Judge Ellis has

carefully considered the proper interpretation of this section

and concluded the following:

[A]n applicant “fails” when he does not take or

seek the opportunity to develop evidence in a

State court proceeding. This is where (e) (2)

1674

A13

RE EIEN ELLIE TIE PI TY,

applies. And this is where (e) (2) (A) may forgive

the failure if new facts or a retroactive change

in constitutional law form the basis of a claim.

In contrast, an applicant does not “fail” where

he seeks, but is denied, the opportunity to develop

facts in state court. In this event, the rigorous

standard of § 2254(e) (2) will not apply.

Cardwell v. Netherland, 971 F. Supp. 997, 1011 (E.D. Va. 1997).

Thus, a petitioner’s “failure” to develop the factual basis of a

claim in state court proceedings must be attributable to some

sort of fault on the part of the petitioner--i.e. something the

petitioner did or omitted to do.

Other district and circuit courts have reached similar

conclusions. See. e.g., Jones v. Woods, 114 F.3d 1002, 1013 (9th

Cir. 1997) ("Where, as here, the state courts simply fail to

conduct an evidentiary hearing, the AEDPA does not preclude a

federal evidentiary hearing on otherwise exhausted habeas

claims.”); Burris. v. Parke, 116 F.3d 256, 258-59 (7th Cir. 1997)

("To be attributable to a ‘failure’ under federal law the

deficiency in the record must reflect something the petitioner

did or omitted.”); said 2, Seats. 1996 WL 612484, *6 (N.D.

Cal. 1996) (holding that where the state court denies

petitioner’s requests for discovery, investigatory funds, and a

hearing, “the Court cannot find that Petitioner failed adequately

to develop the facts of his claims in state court.”).

Moreover, the United States Supreme Court’s recent decision

in Breard v. Greene, 118 S. Ct. __, 1998 U.S. LEXIS 2465 (April

14, 1988), does not compel a different conclusion. In Breard,

the Supreme Court simply reiterated what the plain language of

section 2254(e) (2) and the previously cited cases reveal--that

the limitation on evidentiary hearings in federal habeas

proceedings applies only when the petitioner fails to develop the

factual basis of a claim in state court proceedings. See id. at

*3. Contrary to Respondent’s tortured interpretation of the

relevant language, the Supreme Court did not hold that the word

“fail” in section 2254(e) (2) be given a strict liability reading.

As the Seventh Circuit has noted, if such was the case, “then a

state could insulate its decisions from collateral attack in

federal court by refusing to grant evidentiary hearings in its

own courts. Nothing in sec. 2254(e) or the rest of the AEDPA

implies that states may manipulate things in this manner.”

Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir. 1997).

Thus, the plain meaning of section 2254(e) (2) prohibits a

federal evidentiary hearing only in those cases where a

petitioner has been afforded an opportunity to develop evidence

in state habeas court, but has failed to do so. See 28 U.S.C. §

2254(e) (2); Cardwell vy. Netherland, 971 F. Supp. 997, 1011 (E.D.

‘

;

et TS

Va. 1997). Only under such circumstances is this Court precluded

from considering new facts presented for the first time in

&nw~

~~—~-

federal habeas proceedings or granting an evidentiary hearing

the consideration of same.

In Petitioner’s case, it is clear that he did not “fail[) to

develop” the factual basis of his claims. The record is replete

with examples of state habeas counsel’s numerous attempts to

obtain the evidence required to discover, present, and prove

Williams’ claims--including informal attempts to resolve

discovery matters between counsel which were repeatedly rebuffed.

The state courts further denied Williams the opportunity to

develop the necessary facts by denying all of Williams’ requests

for discovery, expert assistance, and investigative funds, and by

refusing to hold any hearing to take evidence outside of the

trial record. Under such circumstances, the Court is hard-

pressed to find that Williams “failed to develop the factual

basis of a claim in State Court proceedings,” thereby triggering

application of section 2254 (e) (2).

Despite its concerns over the applicability of section

2254 (e) (2) to cases such as the present one, however, this Court

has been directed by its Court of Appeals to apply section

2254 (e) (2) to Williams’ case. Under that stringent standard,

which is now the law of this case, the Court concludes that

Williams is not entitled to an evidentiary hearing on Claims

I(A), IV(A) (1), and IV(A) (5).

B. Analysis

As discussed above, unless Williams can satisfy both

subsection (A) and subsection (B) of 28 U.S.C. § 2254(e) (2), this

Cour. must deny him an evidentiary hearing on Claims I(A),

IV(A) (1), and IV(A) (5S). Based on the present record, the Court

agrees with Respondent’s argument that “regardless of whether

petitioner can satisfy § 2254(e) (2) (A), he cannot possibly

satisfy the stringent requirements of § 2254(e) (2) (B).” Resp’t

Resp. to CA4 Stay Order at 4.

Subsection (B) of 28 U.S.C. § 2254(e) (2) requires a showing

by “clear and convincing evidence that but for [the alleged)

constitutional error, no reasonable factfinder would have found

the applicant cuilty of the underlying offense.” 28 U.S.C. §

2254(e) (2) (B). In the instant case, Williams was convicted of

capital murder on evidence, including his own testimony, which

demonstrated that he was a participant in the armed robbery of

Mr. and Mrs. Keller, that he was at minimum an accomplice in the

rape of Mrs. Keller, and that he fired the first shot into Mr.

Keller’s head. According to the medical evidence presented at

trial, any of the three gunshot wounds to Mr. Keller’s head could

have been potentially lethal and all three definitely contributed

to his death. See Tr. 1-4-94 at 252-56, 262-64. Based on this

evidence alone, Williams cannot demonstrate by “clear and

convincing evidence” that no reasonable juror would have found

him guilty of the capital murder of Mr. Keller.

Moreover, there is no “but for” nexus between Claims I(A),

IV(A) (1), or IV(A) (5) and the “innocence” requirement of

subsection (B). As noted by Respondent, Claims I(A) and IV (A) (5)

which involve a juror’s allegedly untruthful answers during voir

Gire do not have any bearing on the evidence presented at trial

of Williams’ guilt in the shooting death of Mr. Keller.

Furthermore, even assuming arguenda that some sort of informal

understanding did exist between Williams’ co-defendant, Cruse,

and the Commonwealth prior to Cruse’s testimony at Williams’

trial [Claim IV(A)(1)], Williams’ own testimony established that

he shot Mr. Keller during the commission of a robbery and

subsequent to the rape of Mrs. Keller and that therefore, he is

guilty of capital murder. Thus, even if the jury chose to

believe Williams’ version of the shootings over Cruse’s

testimony, Williams himself admitted ynder oath to firing the

first shot into Mr. Keller’s head-~-a ghot which the medical

examiner testified as being potentially lethal.

In light of the foregoing, the Court finds that Williams

cannot make the requisite showing of “innocence” under 28 U.S.C.

§ 2254(e) (2) and thus, he is not entitled to an evidentiary

hearing on his remaining claims. Accordingly, the Court will

VACATE its Order granting an evidentiary hearing on Claims IA),

IV(A) (1), amd IV(A) (5), and DISMISS Williams’ federal habeas

petition in its entirety.

An appropriate Order shall issue.

Lei hcl,

A DISTRICT JUDGE

DATE: June 3, 1998

FILED: May 27, i9

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-17

(CA-96-529-3)

In Re: FRED W. GREENE, Warden,

Mecklenburg Correctional Center,

ORDER

On November 20, 1996, Michael Wayne Williams filed a petition

for a writ of habeas corpus in federal court in the Eastern

District of Virginia. On April 13, 1998, the district court

Gismissed most cf Williams’ claims but granted him an evidentiary

hearing on three claims. That evidentiary hearing is scheduled to

occur on June 2, 1998. The Commonwealth now seeks to prevent the

district court from holding the evidentiary hearing by filins an

application for an emergency stay and a petition for a writ of

mandamus and prohibition with this court.

Both parties agree that Chapter 153 of the Antiterrorism and

Effective Death Penalty Act (AEDPA) governs Williams’ petition.

1642

A20

AEDPA establishes certain limits on a court’s ability to conduct an

evidentiary hearing where an applicant has failed to develop the

factual basis of a claim in state court. In such cases, the court

may hold an evidentiary hearing only if the claim satisfies <wo

requirements. First, the claim must rely on either certain

retroactive new rules of constitutional law or “a factual predicate

that could not have been previously discovered through the exercise

of due diligence.” 28 U.S.C. § 2254(e) (2) (A). Second, the

underlying facts must “be sufficient to establish by clear and

convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.” id. § 2254(e) (2) (B).

In granting the evidentiary hearing, the district court did

not apply these requirements. Instead, it simply cited several

pre-AEDPA cases to support its conclusion that defendant has

demonstrated cause and prejudice. This, we believe, was error.

Accordingly, the warden’s application for an emergency stay is

granted and the matter is remanded for further proceedings. On

remand, the district court must determine whether, under AEDPA,

Williams is entitled to an evidentiary hearing on these claims.

Until the district court has evaluated Williams’ entitlement to an

evidentiary hearing under the strict requirements of AEDPA, we

believe it would be premature to act on any petition for a writ of

1643

A21L

mandamus and prohibition.

The warden’s application for an emergency stay is cranted and

the matter remanded for further proceedings as set forth herein.

Entered at the direction of Chief Judge Wilkinson, with the

concurrence of Judge Williams. Judge Hamilton voted to deny the

application and petition.

For the Court

isi Patricia S$. Connor

Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINI

RICHMOND DIVISION

MICHAEL WAYNE WILLIAMS,

)

Petitioner, )

) Civil Action

v. ) No. 3:96CV529

)

J.D. NETHERLAND, WARDEN, )

Respondent. )

ORDER

For the reasons stated in the Memorandum of the Court this day

filed and deeming it proper so to do, it is ADJUDGED AND ORDERED

that all claims asserted in the Petition, except Claims I(A),

IV(A) (1), and IV(A) (5) be and the same are hereby DISMISSED.

An evidentiary hearing on Claims I(A), IV(A) (1) and IV(A) (5)

will be conducted commencing at 8:30 a.m. Monday, May 18, 1998.

Counsel for each of the parties herein shall, by 1:00 p.nm.,

May 13, 1998, file with the Clerk of this Court proposed findings

of fact and conclusions of law.

Let the Clerk send copies of the Memorandum and this Order to

all counsel of record.

UNITED STATES DISTRICT JUDGE

APR | 3 t092

Date

1367

A23

;

)

[x i Sane

P| te:

IN THE UNITED STATES DISTRICT couRT |; | APR | 3 J007

FOR THE EASTERN DISTRICT OF VIRGINIA ~ . ao

RICHMOND DIVISION oe, I

MICHAEL WAYNE WILLIAMS,

)

Petitioner, )

) Civil Action

Vv. ) No. 3:96CVS29

)

J.D. NETHERLAND, WARDEN, )

)

Respondent. )

)

MEMORANDUM OPINION

This matter is before the Court on the motion of Respondent

J.D. Netherland, Warden of Mecklenberg Prison, to dismiss

Petitioner Michael Wayne Williams’ petition for a writ of habeas

corpus for failure to state a claim pursuant to Rule 12(b) (6) of

the Federal Rules of Civil Procedure. The matter has been fully

briefed by the parties and is ripe for decision. For the reasons

which follow, the Court will GRANT IN PART AND DENY IN PART the

motion.

z. FACTUAL BACKGROUND

In affirming Williams’ conviction and sentence on direct

appeal, the Virginia Supreme Court stated the facts of the case

as follows:

Between 9:30 and 10:30 p.m., on Saturday, February 27,

1993, Verena Lozano James drove Williams and Cruse to a rural

area in Cumberland County and left them approximately one-half

mile from Bear Creek Market. Williams and Cruse planned to

1272

A24

rob persons in the market with a .357 caliber Ruger Black Hawk

revolver that Williams had given to Cruse.

The two men walked to the store, but found it closed.

Williams suggested that “he knew a house where we can go;

they'd have a couple thousand dollars." Cruse agreed, and

they walked some distance to the Kellers' house. Upon arrival

at the Kellers' house, Cruse returned the Black Hawk revolver

to Williams and Cruse knocked on the door. When Mr. Keller

opened the door, Williams pointed the gun at him and both men

entered the house.

Williams ordered the Kellers to remove all their clothes,

and he remained in the kitchen with them while Cruse began

searching the house for money and other valuables. After

Cruse found a fully loaded .38 caliber handgun, Williams

decided “to tie [the Kellers) up," and Cruse did so. The

Kellers were then placed, first in one closet and later in

separate closets, and both men resumed their search.

After the two men had assembled some of the Kellers'

property in the living room, at Williams's suggestion, first

Williams, then Cruse, raped Mrs. Keller. Afterward, Williams

ordered both Kellers to take showers and put on clean clothes,

which they did. Williams then directed the Kellers to "take

a walk" with them. Upon hearing that the two men planned to

burn the house, Mrs. Keller took the Kellers' marriage

certificate with her. As the Kellers, Williams, and Cruse

left the house and walked "[d)own on a dirt road and into a

thicket," Williams was carrying the .38 caliber handgun and

Cruse was carrying the Black Hawk revolver.

When they were in the thicket with Williams standing

behind Mr. Keller and Cruse standing behind Mrs. Keller,

Williams said, “We'll shoot at the count of three." Upon

Williams's count of three, he shot Mr. Keller with the .38

caliber handgun and Mr. Keller fell to the ground. However,

Cruse did not shoot Mrs. Keller. Williams told Cruse to shoot

Mrs. Keller because "he didn't want to leave no witnesses."

Cruse then shot Mrs. Keller once with the Black Hawk revolver.

After Mrs. Keller fell, Mr. Keller stood up and Williams shot

him again with the .38 caliber handgun. As Cruse started to

walk away, Williams said, "Wait ... [w)hat if they ain't

dead?", and he shot each of the Kellers "a couple more times

apiece” with the .38 caliber handgun.

The two men returned to the house, where they loaded a

television set, microwave oven, shotgun, stereo set, and

Viper

speakers into Mr. Keller's jeep, and, at Williams's

suggestion, set fire to the house. Williams and Cruse then

took the jeep to Fredericksburg, where they sold some of the

stolen property the next day. They then threw the remaining

stolen property and the Black Hawk revolver into the

Rappahannock River and set fire to the jeep.

Upon hearing of the Keller fire on Monday morning, Verena

James advised the police that she had taken Williams and Cruse

to an area not far from the Keller house on the night of the

fire. Consequently, the police sought to question the two men

regarding the fire. Williams and Cruse had returned to

Cumberland County the Monday following the murders and the

police were able to question Cruse. Williams, however, fled

to Florida.

At first, Cruse furnished no information of value to the

police. However, after the police discovered the bodies of

the Kellers on Tuesday, Cruse consulted counsel. His counsel

obtained a conditional agreement from the Commonwealth that it

would not seek the death penalty provided Cruse gave a

truthful statement of his knowledge of the crimes. Cruse then

furnished information that implicated both men in all of the

crimes charged, except for Cruse's role in Mrs. Keller's rape.

Because Cruse breached his agreement in failing to tell the

police that he had raped Mrs. Keller, the Commonwealth also

indicted him for the Kellers' capital murders.

Testifying in his own defense, Williams agreed with

Cruse: (1) that Williams was the one who suggested robbing

persons at the store; (2) that Williams was the first one to

shoot Mr. Keller and that Cruse was the first one to shoot

Mrs. Keller; and (3) that it was Williams's idea to burn the

Keller house. However, Williams (1) denied that he raped Mrs.

Keller, (2) claimed that Cruse fired all the subsequent shots

into the Kellers' bodies, and (3) contradicted other details

of Cruse's testimony about who had suggested some of their

activities during and after the murders.

Lisa C. Schiermeier, a serologist, tested the seminal

fluid recovered from Mrs. Keller's vagina as a part of the

Physical Evidence Recovery Kit prepared by Dr. Deborah Kay, an

assistant chief medical examiner who performed the autopsy on

Mrs. Keller. Schiermeier compared that sample with the blood

types of Cruse, Williams, and Mr. Keller. Schiermeier

testified that her comparison indicated only Williams could

have contributed a certain type of seminal fluid found in the

sample. Dr. George C. Li, a DNA expert who performed a DNA

test on the spermatozoa from the sample, testified that his

test results were consistent with a conclusion that Cruse and

Williams jointly contributed the seminal fluid.

Williams v. Commonwealth, 248 Va. 528, 533-35 (Va. 1994).

II. PROCEDURAL HISTORY

On June 29, 1993, in the Circuit Court of Cumberland County,

Virginia, Michael Wayne Williams (“Williams”) was charged in

twelve separate indictments for the capital murder, robbery,

rape, and abduction of Mary Keller; for the capital murder,

robbery, and abduction of Morris Keller; for capital murder based

on two related homicides; for statutory burglary; and for arson.

Jeffrey Allan Cruse (“Cruse”) was also indicted for the same

offenses. Several months earlier, Williams was arrested and

incicted on four homicides which had occurred in Prince Edward

County on December 24, 1992. Williams pled not guilty to each of

the charges.

Williams was subsequently tried by a jury which found him

guilty on all counts. On the non-capital charges, the jury fixed

Williams’ punishment at life imprisonment for the rape, 50 years

and a $100,000 fine for the arson, 40 years for each of the

robberies, 20 years for the burglary, and 10 years for each of

the abductions. On January 7, 1994, the jury recommended that

ik > oat .

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| Williams be sentenced to death for the capital murders of both

Mr. and Mrs. Keller, finding that both statutory aggravators of

“future dangerousness” and “vileness” existed. The trial judge

subsequently adopted the jury's recommendation and sentenced

Williams to death on February 22, 1994.

On November 4, 1994, the Virginia Supreme Court upheld

Williams’ capital murder convictions and death sentences in

Williams v. Commonwealth, 248 Va. 528 (1994). Williams’ request

for a rehearing was denied on January 13, 1995. On June 26,

1995, the U.S. Supreme Court denied his petition for a writ of

certiorari. See Williams v. Virginia, 113 S. Ct. 1880 (1995).

Williams subsequently filed a petition for a writ of habeas

corpus in state post-conviction proceedings.

On August 30, 1995, Williams filed his initial state habeas

petition. From December 1995 to January 1996, counsel for

Williams also filed motions for expert assistance and discovery.

On January 29, 1996, after receiving leave to amend, Williams

filed an amended state habeas petition. The Virginia Supreme

Court dismissed Williams’ petition without hearing or oral

argument and denied all motions for expert services and discovery

on March 18, 1996. The U.S. Supreme Court again denied

certiorari on October 7, 1996. See Williams v. Netherland, 117

S. Ct. 200 (1996).

On July 2, 1996, this Court granted Williams’ motion for

appointment of counsel and stay of execution, then scheduled for

July 11, 1996. By Order entered on August 13, 1996, this Court

directed Williams to file his federal habeas petition within 180

days of April 24, 1996. The Court subsequently granted Williams’

request for a 30-day extension. Williams filed his federal

habeas petition on November 20, 1996.

III. CLAIMS PRESENTED

In his federal habeas petition Williams attacks his

conviction and sentence on the following grounds:

Ee Juror Misconduct Violated Williams’ Rights to an

Impartial Jury and to Due Process of Law

A. Juror Stinnett

B. Juror Blanton

6. The Jurors Improperly Considered Parole

Eligibility During the Sentencing Deliberations

II. The Evidence Was Insufficient as a Matter of Law to

Sustain Any Convictions for Capital Murder

A. The Evidence Did Not Establish that Williams Was

the Triggerman ,

B. The Predicate Felonies Were Not Part of the

Murders

PEP EO et ere

OES LE NE PRCT Ns res 8 cee

. The Trial Court Denied Williams a Fair Trial and

Sentencing

Guilt Phase

The Trial Court Gave an Erroneous Instruction

on Capital Murder and Relieved the

Commonwealth of Its Burden to Prove the

Elements of Capital Murder

The Trial Court Did Not Properly Perform or

Permit a “Life-Qualification” of the Jury

a. Jurors Trent and Holman

b. Juror Bernard

Cc. Juror Davis

d. Jury Predisposed to Impose Death

The Trial Court Erred When It Refused to

Permit In-Depth, Individual Questioning

Regarding Pre-Trial Publicity

The Trial Court Denied Williams a Fair Trial

By Refusing His Request For Appointment of an

Investigator

A Mistrial Should Have Been Declared After

Verena James Referred to the “Rice Fires”

During the Guilt Phase of Trial

The Trial Court Erred in Allowing the

Commonwealth’s Attorney to Improperly Bolster

the Testimony of Cruse

The Trial Court Erred in Admitting Into

Evidence Numerous Photographs of the Victims

Williams’ Constitutional Right to be Present

at Trial and to Confront His Witnesses Should

Not Have Been the Subject of Impeachmen

Vee

Sentencing Phase

10.

The Trial Court Erred in Not Declaring a

Mistrial or Not Giving Cautionary

Instructions After Improper and Inflammatory

Closing Argument by the Commonwealth at the

Sentencing Phase

Williams Was Not Provided With Appropriate

Discovery to Rebut the Commonwealth’s Case on

Vileness and Future Dangerousness

The Court Erred in Denying a Jury Instruction

Concerning the Meaning Life Sentence and

Williams’ Mandatory 30 Year Parole

Ineligibility

The Trial Court Erred in Permitting the

Mother of the Victim to Testify at the

Sentencing Phase

The Trial Court Erred When Admitting Evidence

of Unadjudicated Criminal Acts in the

Sentencing Phase of the Trial

The Trial Court Erred in Admitting Evidence

of Unadjudicated Criminal Conduct Without

Setting a Standard of Proof

The Trial Court Erred in Admitting

Photographs of the Prince Edward Homicides

The Trial Court Erred in Permitting Cross-

Examination of Williams’ Mother That Exceeded

the Scope of Direct Examination

The Trial Court Erred in Restricting the

Testimony of Williams’ Mitigation Expert and

Barring Testimony Explicitly Permitted Under

the Statute

The Trial Court Erred With Instructing the

Jury at the Sentencing Phase and in Failing

owe

il.

to Instruct on Mitigation and Mitigating

Evidence

The Trial Court’s Sentencing Instructions

Were Constitutionally Deficient

IV. Prosecutorial Misconduct Deprived Williams of a Fair

Trial and Due Process

Guilt Phase

The Commonwealth Failed to Disclose Its

Agreement With the Chief Prosecution Witness,

Cruse, and Actively Misled the Jury Regarding

An Agreement With Cruse

The Commonwealth Failed to Disclose a

Psychiatric Evaluation of Cruse Containing

Brady Information

The Commonwealth Allowed Cruse, Williams’ Co-

Defendant, to Misrepresent his Cooperation

and Contacts With the Commonwealth Prior to

Williams’ Trial

The Commonwealth Presented Improper Opening

and Closing Arguments

The Commonwealth Failed to Reveal at Voir

Dire That Stinnett’s Former Husband Would be

a Trial Witness and That She Had Failed To

Reveal Their Relationship to the Court and

Counsel

Sentencing Phase

The Prosecutor Acting Improperly When

Objecting to Dr. Cornell’s Testimony About

Mitigation Factors Properly Before the Jury

The Prosecutor Engaged in Improper and

Prejudicial Argument During the Sentencing

Phase

1280

SSS Re eo ae eee ee

Vv. Williams Did Not Receive Effective Assistance of

Counsel

A. Guilt Phase

2. Counsel was Ineffective in Failing to Object

to Improper Instructions Regarding the

Triggerman Rule and the Degrees of Murder

2. Counsel Did Not Effectively Investigate ocr

Confront the Petitioner’s Co-Defendant,

Jeffrey Alan Cruse, or the Issue of Cruse’s

Plea Agreement With the Commonwealth

3. Trial Counsel Failed to Investigate, Develop

and Present Evidence of Voluntary

Intoxication as a Defense and to Impeach the

Prosecution’s Key Witness

a. Intoxication as a Defense

b. Intoxication to Impeach the

Prosecution’s Key Witness

4. Counsel was Ineffective in Failing to Object

to the Court’s Deficient Preliminary

Instruction and Jury Charge on the Burden of

Proof

s. Petitioner’s Counsel Were Ineffective on Voir

Dire and Compounded The Trial Court’s Error

a. Counsel Failed to Adequately Protect

Williams’ Right to Life Qualification

Questions

i. Juror Trent

ii. Juror Holman

iii. Juror Bernard

1281

A 33

Ee NA TE PY ES RAN

fren

b. Counsel Failed to Challenge Prospective

Juror Stinnett for Cause

e. Counsel Failed to Conduct Extensive Voir

Dire on the Issue of Pretrial Publicity

Trial Counsel Were Ineffective in Seeking

Court Appointment of an Investigator

Counsel was Ineffective in Failing to

Promptly Stipulate to the Testimony of Family

Members Regarding Identification and

Ownership of Property Stolen From the

Victims

Counsel Failed to Protect Williams’ Rights

When Counsel Failed to Offer When a Single

Objection to Improper Prosecutorial Comments

Counsel was Ineffective in Failing to Object

to Numerous Improper and Misleading

Statements by the Commonwealth in Opening and

Closing Arguments During the Guilt/Innocence

Phase of the Trial

Sentencing Phase

Counsel Failed to Object to Testimony From

the Victim’s Mother

Counsel Failed to Make a Timely Objection to

Photographs of the Prince Edwarc Victims and

to Properly Argue the Objection

Counsel Failed to Develop Defense Evidence

and Mitigation Evidence Through the Medical

Examiner

Counsel Failed to Develop Defense Evidence

and Mitigation Through Williams’ Brother

Counsel Failed to Object to Cross Examination

on Williams’ Arrest at the Penalty Phase

1282

A34

vi.

6. Counsel Failed to Present Evidence of

Intoxication and Drug Use

7. Counsel Failed to Protect the Testimony of

Their Expert Witness During Objections and

Interruptions by the Prosecutor and Court

8. Counsel Failed to Request 4n Evaluation by 4

Neuropsychologist

S$. Counsel Failed to Present Williams’ Testimony

at the Sentencing Phase

10. Counsel Failed to Object to a Deficient

Instruction on Mitigation and Failed to

Request a Corrective Mitigation Instruction

11. Counsel Failed to Object to Improper,

Inflammatory and Prejudicial Argument and

Failed to Request a Curative Instruction

12. Counsel Present Ineffective Argument at the

Penalty Phase

Ineffective Assistance on Appeal

i. Failure to Appeal Denied Jury Instructions

2. Counsel Failed to Properly Appeal the Trial

Court’s Erroneous Restriction of Voir Dire

and Violations of Witherspoon-Witt

3. Counsel Failed to Appeal the Trial Court’s

Failure to Remove Gary Davis in the Same

Manner as the Removal Was Objected to at the

Trial Court Level

Williams Was Not Provided With the Effective Assistance

of a Mental Health Expert Guaranteed Under Ake v.

Oklahoma, 470 U.S. 68 (1985)

1283

A3S

bes VII. Additional Constitutional Errors

Virginia’s Death Penalty Statutes Are

Unconstitutional as They Fail to Provide Guidance

on the Meaning and Use of Mitigating Evidence

Virginia’s Death Penalty Statutes Are

Unconstitutionally Vague as They Fail to Provide

the Sentencer With Sufficient Guidance to Assure

that the Death Penalty is Not Imposed in an

Arbitrary and Capricious Manner

Virginia's “Vileness” Factor, as Applied,

Unconstitutionally Denies Defendant Notice and

Meaningful Opportunity to be Heard

The “Future Dangerousness” Aggravating Factor is

Unconstitutionally Vague and Inherently Misleading

as it Asks Jurors to Find a Probability Beyond a

Reasonable Doubt

Section 19.2-264.4(c), Which Allows The Sentencer

to Find “Future Dangerousness” Based on

Unadjudicated Criminal Conduct, Violates The

Sixth, Eighth and Fourteenth Amendments

The “Future Dangerousness” Aggravating Factor is

Inherently Unreliable and is Insufficient to Guide

Jury Discretion

Imposition of the Death Penalty in Virginia is

Arbitrary Because of the Failure of the Supreme

Court of Virginia to Engage in Meaningful or Fair

Appellate Review

Virginia's Contemporaneous Objection Rule is

Unconstitutional as Applied

Imposition of the Death Penalty Violates the

Eighth and Fourteenth Amendments Since it

Constitutes Cruel and Unusual Punishment

1284

A 36

IV. THE APPLICABILITY OF THE 1996 ANTITERRORISM AND EFFECTIVE

DEATH PENALTY ACT

On April 24, 1996, before Williams filed his federal habeas

petition, the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (the “Act”), became

effective. Title I of the Act, entitled “Habeas Corpus Reform,”

substantially alters the substantive law governing habeas corpus

oar

petitions. Sections 101 to 106 of the Act modify pre-existing

habeas corpus procedures contained in Chapter 153 of the Judicial |

Code, 28 U.S.C. §§ 2241-2255. Section 107(a) of the Act enacts a

new Chapter 154, 28 U.S.C. §§ 2261-2266, which applies to habeas

petitions in capital cases.

COO TO COA ee

This Court has previously held that the new Act did not

apply because Virginia had not satisfied the “opt-in”

requirements of § 107(a) and applying Chapter 153 violated

retroactivity principles. See Strickler v. Netherland No.

3:95cev924 (E.D. Va. 1996); Saunders vy. Angelone, No.3:95cvé20

(E.D. Va. 1996). Respondent urges the Court to reconsider its

prior ruling, arguing that the procedural posture of Williams’

case differs significantly from that of Strickler and Saunders:

In both those cases, petitioners filed their federal habeas

petitions before the Act was enacted, and had entered state

1285

A37

habeas proceedings before the Virginia General Assembly passec

their July 1995 amendments. Williams, however, filed his state

habeas petition after July 1995 and then filed his federal habeas

petition in November 1996--seven months after the Act's

enactment. The legal landscape governing Williams’ petition has

clearly changed since Strickler and Saunders.

A. Chapter 154: New Habeas Corpus Provisions

Section 107(a) of the Act, codified at Chapter 154, 28

U.S.C. §§ 2261-2266, essentially offers a system of expedited

review and other “benefits” to states that qualify under either

of two “opt-in” procedures: (1) the “post-conviction” procedure

provided by 28 U.S.C. § 2261; or (2) the “unitary review”

procedure provided by 28 U.S.C. § 2265. As this Court found in

Strickler, the Fourth Circuit requires courts to analyze federal

habeas petitions under § 107 of the Act because that section

specifically states that the Act “shall apply to cases pending on

or after the date of enactment of this Act.” § 107(c); see

Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996), cert.

denied, 117 S. Ct. 503 (1996). Section 107 applies, however,

only if Virginia satisfies the “opt-in” requirements. Since

Virginia does not have a unitary review procedure, the Court must

therefore analyze whether Virginia meets the post-conviction

1286

A38

review procedures and thus, qualifies @S an opt-in state.

2. The “Opr-tn* pec: -emens

To qualify as an Opt-in state, a state must meet all four of

the following criteria:

(1) The State must establish by statute, rule of its court

(2) Such mechanism must Provide standards of competency for

the appointment of such counsel. See § 2261 (b).

(3) Such mechanism must affirmatively offer counsel to all

State prisoners under capital Sentence. See § 2261 (c).

(4) Such mechanism must Provide for an entry of a court

Order either @ppointing counse) to each capita)

defendant, or explaining that Such an appointment was

not made on the basis that a defendant was not indigent

Or rejected the offer of counsel with an understanding

of the legal consequences. S2e § 2261 (c).

Since July :, 1992, Virginia has required the appointment of

appointment mechanism Satisfies the requirements of Chapter 154,

this Court finds that the automatic appointment of counsel for

indigent defendants does meet the first Opt-in criterion.

Virginia, however, still fails to reap the benefits of

PONE LE LSE PIII Nore ox

by the Act.

ation and payment of such counsel as required by

compens

; via the

While Virginia substantially complies with the law

rovi for the

iations acts of the General Assembly that provide

appropriat

i Fourth

“mechanism” for payment as required by the Act. The

irgini s and

Circuit recently noted that “the Virginia statute

i ation or

regulations do not specifically provide for the compens

i 107

yment of litigation expenses of appointed counsel, as §

, 92 F.3d 1336, 1342 n.2 (4th Cir.

requires.” Bennett v. Angelone

996), cert. denied, 117 S. Ct. 503 (1996). This same

1 ‘ bd ’

944

in Satcher v. Netherland,

conclusion was reached by the Court in

F. Supp. 1222 (E.D. Va. 1996), :

126 F.3d S61 (4th Cir. 1997).

other grounds, |

he Court in Satcher noted, ”[i])£ Congress had intended

As the

if; ed b

fford the States the very significant benefits conferr y

toa

bd 1242 .

— ee:

review system which would protect capital litigan

1288

A40

“az

“and finds that Virginia's system for compensation and payment of

expenses still fails to meet the standards established by § 107.’

}

Pt 4

Thus, Virginia does not qualify as an opt-in state because it

fails to adhere to the formal requirements of § 2261.

Accordingly, Chapter 154 does not apply to Williams’ federal

PESO 2 ge Ua eS Ft

habeas petition.

B. Chapter 153 Amendments

Chapter 153 of the Act, §§ 101-106, effects a number of

procedural changes to previous habeas corpus statutes codified in

Chapter 153. Of particular relevance to Williams’ petition is §

104 which substantively changes the standards of review under 28

Furthermore, unlike Chapter 154, the Chapter

U.S.C. § 2254.?

153 amendments are not made explicitly applicable to petitions

pending when the Act took effect. The U.S. Supreme Court in

Lindh v. Murphy, 117 S. Ct. 2059 (1997), recently held that the

' The Court is aware that the amended Va. Code § 19.2-163,

effective July 1998, does provide for such a compensation and

payment mechanism. This amendment, however, was not in effect at

the time Williams filed his federal habeas petition.

? Specifically, § 104 limits the grounds on which petitions

may be granted (28 U.S.C. § 2254(d)), requires greater deference

to state court findings of fact (28 U.S.C. § 2254(e)(1)), limits |

the availability of evidentiary hearings in a habeas court (28

U.S.C. § 2254(e)(2)), and eliminates ineffectiveness or

incompetence of post-conviction counsel as a ground for relief

under 28 U.S.C. § 2254 (28 U.S.C. § 2254(i)).

1289

A4i

wr.

amendments do not apply to habeas corpus cases that were pending

when the Act took effect, thereby resolving a split among the

circuits. Applying the amendments to these pending cases, the

U.S. Supreme Court held, violates principles against retroactive

application of laws. See Landsraf v. USI Film Prods., 114 S. Ct.

1483 (1954). The U.S. Supreme Court expressly found that “the

amendments to chapter 153 [apply] only to such cases as were

filed after the statute’s enactment.” Lindh, 117 S. Ct. at 2062.

Williams attempts to place his federal habeas petition in

this “pending” box by arguing that he filed a state habeas

petition before the Act’s enactment and therefore, applying the

amendments to his federal habeas petition would trigger

Landcraft’s retroactive effect. Indeed, if his federal habeas

petition were pending when the Act took effect, this Court could

not apply the Chapter 153 amendments pursuant to Lindh.

Williams, however, filed his federal habeas petition in November

1996. His strained argument--that the amendments would have an

impermissible retroactive effect on his federal habeas petition

merely because he went through state post-conviction proceedings

with the assumption that he would enter federal review under the

old 28 U.S.C. § 2254--is contrary to the U.S. Supreme Court’s

directive in Lindh. Therefore, the Chapter 153 amendments

enacted seven months before Williams filed his federal habeas

petition will govern his claim.

Vv. EXHAUSTION AND PROCEDURAL DEFAULT

This Court’s review of Williams’ federal habeas petition is

restricted to an inquiry of whether his confinement and sentence

are in violation of federal constitutional or statutory law. See

28 U.S.C. § 2241(c) (3). Before this Court can reach the merits

of any claim, however, Williams must demonstrate that he has

exhausted all state court remedies. See Rose vy. Lundy, 455 U.S.

509 (1982). This requirement is strictly enforced in the

interest of giving the state courts the first opportunity to

consider any alleged errors. See id.

A state court has not been given a full opportunity to rule

on a claim unless it has been presented before the state’s

highest court. See Brown vy. Allen, 344 U.S. 443 (1953). In

presenting a claim to the state court, the petitioner must

“fairly present” claims cognizable under federal law. See Picard

wConner, 404 U.S. 270 (1971). That is, in order to exhaust a

federal claim for purposes of federal habeas corpus review, a

petitioner cannot simply raise the claim in state court, citing

state law, even if the state claim is analytically similar to a

federal claim. See Anderson v. Harless, 459 U.S. 4 (1982);

1291

A 43

2 TD EMP RETR CRETE

Duncan v. Henry, 513 U.S. 364 (1995) (presentation of a

“miscarriage of justice” claim under California law was not the

same as an allegation of a violation of federal due process).

Furthermore, Williams is not entitled to federal review of

Claims which are procedurally defaulted. These include claims

defaulted under an independent and adequate state procedural

rule, Coleman v. Thompson, 501 U.S. 722, 750 (1992), and claims

never presented to a state court, Gray vy. Netherland, 116 S. Ct.

2074, 2080-81 (1996). In Virginia, no writ of habeas will be

granted on the basis of any legal or factual claim which the

petitioner previously could have made, but did not. See Gray,

116 S. Ct. at 2080; Slayton v. Parrigan, 215 Va. 27 (1974), cert.

denied, 419 U.S. 1108 (1975). In order to overcome this

procedural bar, the petitioner must demonstrate good couse for

his failure to preserve the issue and prejudice resulting from

the constitutional violation, Gray, 116 S. Ct. at 2080, or that

there has been a fundamental miscarriage of justice, Coleman, 501

U.S. at 750.

In this case, Williams raised several of the present claims

in his petition for a writ of habeas corpus before the Virginia

Supreme Court. His remaining claims are exhausted because they

were never raised in state court and could not be raised in state

1292

A44

court now. See Va. Code Ann. §§ 801.654(B) (2) and 801.654-1.

A. Defaulted Claims’

1. Cause and Prejudice Analysis

The U.S. Supreme Court has recognized at least three

categories of “cause” which are sufficient to overcome a state

procedural default: (1) counsel’s inability to know of a legal

or factual issue; (2) interference by the prosecution with the

habeas petition; and (3) ineffective assistance of counsel. Ses

Murray v. Carrier, 477 U.S. 478 (1986). In addition, a federal

court may grant habeas relief in the “extraordinary instances

when a constitutional violation probably has caused the

conviction of one innocent of the crime.“ McCleskey v. Zant. 499

U.S. 467, 494 (1991).

2. Claims Barred under Slayton vy. Parrigan

The Virginia Supreme Court ruled that several of Williams’

state habeas claims were defaulted under Slayton vy. Parrigan, 215

Va. 27 (1974), cert. denied, 419 U.S. 1108 (1975). Under the

rule in Slayton, state habeas review is barred by the failure to

raise an issue at trial and on direct appeal. Jd. Slayton is a

> Williams has numbered the claims in his federal habeas

petition differently than in his state habeas petition. To avoid

confusion, the Court will refer to the numbers designated in

Williams’ federal habeas petition.

POR ere er Oe rege OF HL ws,"

inv

well-recognized bar to federal review. See Spencer vy.Murray., is

F.3d 229, 232 (4th Cir. 1994).

As a preliminary matter, Williams asserts that the Virginia

Supreme Court mistakenly applied Slayton to Claims III(A) (5),

III(A) (6), III(A) (7), and III(B) (11) because he raised those

Claims at trial and on direct appeal. A review of the recore

confirms that contention. Respondent correctly notes, however,

that Williams did not raise these claims on federal

constitutional grounds; rather, Williams solely argued matters

of state law. Having failed to “fairly present” these claims as

federal constitutional claims before the state’s highest court,

Williams cannot now “federalize” Claims III(A) (S), III(A) (6), and

III(A) (7) for purposes of federal habeas review. See Picard vy.

Conner, 404 U.S. 270 (1971). As for Claim III(B) (11), the

Virginia Supreme Court expressly ruled that it was procedurally

defaulted under its Rule 5:25. Accordingly, because Williams has

failed to show “cause” for the default of these claims, this

Court is precluded from further reviewing Claims III(A) (5),

III(A) (6), ITI(A) (7), and ITI(B) (22).

Williams can revive the remaining claims barred under

Slayton if he can demonstrate cause and prejudice, or that there

has been a fundamental miscarriage of justice. Williams asserts

1294 | ae

ineffective assistance of counsel as “cause” for these defaulted

claims.‘ Because it is also the freestanding theory advanced in

Claim V, it is discussed as part of the general discussion in

Claim V. As noted below, this Court has determined that the

ineffective assistance of counsel claims set forth by Williams in

Claim V are meritless. Accordingly, Williams cannot establish

“cause” for the Slayton procedural default. See infra at 56-94.

This Court is therefore precluded from reviewing Claims

TII(A) (1), IIIA) (2) (a)-(e), IITI(A) (4), IITI(A) (5), IIIA) (6),

ITII(A) (7), ITI(B) (1), ITI(B) (4), III(B) (7), III(B) (8), IIIB) (9),

TII(B) (10), IZTI(B) (11), IV(A) (3), IV(A) (4), IV(B) (1), IV(B) (2),

VI, VII(G),*® VII(H),*® VII(I)’.

* In order to establish “cause” for a procedural default, a

claim of ineffective assistance of counsel must have been

presented to the state courts as an independent claim. See

Murray v. Carrier, 477 U.S. 478, 489 (1986) (quoting Rose vy.

Lundy, 455 U.S. 509, 518 (1982)). In other words, an assertion

of ineffective assistance of counsel cannot constitute “cause”

excusing a procedural default where the underlying allegation of

ineffectiveness is itself procedurally barred. See Justus vy.

Murray, 897 F.2d 709 (4th Cir. 1990).

* To the extent Williams relies on the prosecutor’s closing

arguments.

* Williams concedes that this claim is procedurally

Gefaulted. See Pet’r Opp’n at 79.

a’ To the extent Williams relies on the length of time he

will spend on death row.

Coe a gee.

ee i ee

3. Claims Never Presented in Stare Court

Williams failed to present the following claims at the state

court level: I(A), I(C), IZI(A) (2) (b),* IIIA) (2) (d),’

III(A) (3), IV(A) (2), IV(A) (5), VIA) (3) (b),*® VIA) (5) (b),*

V(c) (1),22 Vic) (2),* VII(A),* and VII(H)**. Despite ths

procedural bar, these defaulted claims will be revived for

purposes of federal habeas review if Williams can show (1) cause

for, and prejudice from, the default; or (2) the existence of a

fundamental miscarriage of justice.

* This claim is barred under Slayton. See infra at 23-24.

§ Williams argues that Respondent has misconceptualized his

argument that the trial court seated a jury predisposed to impose

a death sentence in violation of Witherspoon vy. Illinois, 391

U.S. 510, 521 (1968). See Pet’r Opp’n at 22. Williams asserts

that he has never argued this claim independent of his claims

regarding Jurors Trent, Holman, and Davis. Thus, it is a

mischaracterization to state that it was never raised in state

court proceedings and it should therefore not be dismissed

separately.

" See infra at 67-68.

2 Respondent concedes that this claim was raised in

Williams’ state habeas petition. See Resp’t Reply at 26.

) Respondent concedes that this claim was raised in

Williams’ state habeas petition. See Resp’t Reply at 26.

“ See infra at 43.

' See supra note 6.

1296

A4s

Claims 1(A) and IV(A) (5)

Williams claims that his constitutional rights to be tried

by an impartial jury and to be tried based only on the evidence

presented at trial were violated by the presence of Juror

Stinnett on the jury. Juror Stinnett’s former husband was Deputy

Sheriff Claude B. Meinhard, the detective who interviewed Cruse

about the murders and who testified for the Commonwealth.

Furthermore, the prosecutor, Robert G. Woodson, Jr., had

represented Deputy Meinhard during his divorce. Although asked

on voir dire whether she was related to any of the witnesses or

if she or any family member had ever been represented by any of

the attorneys involved in the case, Juror Stinnettt never

revealed her former marriage to Deputy Meinhard or that they had

four children together. Prosecutor Woodson never mentioned his

representation of Deputy Meinhard either. As a result, Williams

argues that defense counsel could not conduct meaningful voir

dire and could not intelligently exercise their peremptory

challenges or challenges for cause. Thus, Williams contends that

he was deprived of a fair trial under United States vy. Bynum 634

F.2d 768, 771 (4th Cir. 1980).

In response, Respondent argues that Williams has

procedurally defaulted these claims because he failed to raise

1297

A439

SaaS hn ne sn

them on state habeas. Moreover, even if Williams could surmount

the “cause” hurdle, he has failed to demonstrate “prejudice.”

Juror Stinnett divorced Deputy Meinhard fifteen years prior to

the trial, and Deputy Meinhard was an insignificant witness for

the Commonwealth. Indeed, Respondent points out that the defense

did not cross-examine Deputy Meinhard, and his credibility was

never at issue.

Irrespective 6f Deputy Meinhard’s importance as a witness,

however, if Williams can demonstrate “cause” for the procedural

default, he will have automatically demonstrated “prejudice”

under Bynum. In Bynum, the Fourth Circuit reversed a conviction

because a juror, when asked whether he had a relative or close

friend who had been either a defendant or victim of a crime,

failed to reveal his brother’s existence as a convicted felon.

In so holding, the Fourth Circuit stated:

Certainly when possible non-objectivity is

secreted and compounded by the deliberate

untruthfulness of a potential juror’s answers

on voir dire, the result is deprivation of the

defendant’s rights to a fair trial. [The juror)

by his concealment impaired the right of (the

defendant) to exercise intelligently a

peremptory challenge to remove a juror who

was suspected of being partial.

Bynum. 634 F.2d at 771 (footnotes omitted); see also United

States v. Brown, 799 F.2d 134 (4th Cir. 1986) (voir dire that has

1298

ASO.

the effect of impairing the defendant‘’s ability to meaningfully

and intelligently exercise his challenges is grounds for

reversal).

Like the juror in Bynum, Juror Stinnett deliberately failed

to tell the truth on voir dire.

COURT : Have you or any member of your immediate

family ever been represented by [Mr.

Woodson) ?

JURORS : (Two [Stinnettt and Carter) have no

affirmative response.)

Tr. 1-3-94 at 116.

COURT : Are any of you involved in law enforcement?

JURORS : (No affirmative response. )

COURT : Are any of you related to the following

people who may be called as witnesses .

Deputy Sheriff Claude Meinhard ... ?

JURORS : (No affirmative response.)

id. at 123-24. Like the juror in Bynum, Juror Stinnett’s

intentional nondisclosure on voir dire gives rise to a

presumption of actual bias. Assuming that Prosecutor Woodson

knew of Juror Stinnett’s relationship to Deputy Meinhard based on

his representation of Deputy Meinhard in the divorce, his

subsequent failure to advise the court or defense counsel of

Juror Stinnett’s dishonesty had a substantial and injurious

1299

AS1

effect on Williams’ ability to select impartial jurors.

Although Respondent argues that Williams has failed to

demonstrate “cause,” the Court disagrees. There is no evidence

that Williams’ defense or state habeas counsel knew or could have

known of Juror Stinnett’s relationship to Deputy Meinhard absent

disclosure by the prosecutor. Because Prosecutor Woodson never

notified the court or defense counsel of his prior representation

of Deputy Meinhard or of his knowledge of Deputy Meinhard’s

relationship to Juror Stinnett, the Court finds that this

information was not reasonably available to defense counsel and

that they were unable to know of this issue. Accordingly, the

Court will grant an evidentiary hearing on these allegations of

juror and prosecutorial misconduct. The motion to dismiss this

claim will be denied.

Claim 1(¢)

Williams argues that three jurors improperly considered his

parole eligibility during the sentencing phase of his trial--

specifically, the jurors reported that they believed Williams

would be released after 33 years if given a life sentence.

Williams now argues that the jurors’ consideration of this

extrajudicial evidence violated his right to be convicted solely

on evidence introduced in open court. See Smith v. Phillips, 455

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U.S. 209, 217 (1982).

The Court will dismiss this claim because it is procedurally

Gefaulted. Even if Williams could demonstrate “cause,” he has

failed to show that the jurors’ internal discussion prejudiced

him. Such evidence is inadmissible under Rule 606(b) of the

Federal Rules of Evidence, and Williams has failed to prove that

the jury’s internal discussion of parole constitutes

impermissible “extrajudicial” evidence to circumvent Rule

606(b)’s bar.

Claim III (A) (3)

Williams argues that the trial court erred when it refused

to permit in-depth individual questioning on voir dire regarding

pretrial publicity. Respondent asserts that this claim is

procedurally defaulted because Williams failed to raise it in

state court. Because Williams offers no “cause” for the default,

the Court will dismiss this claim.

Claim IV/(A) (2)

In September 1993, while incarcerated for the Keller

murders, Cruse was evaluated by a psychiatrist who reported that

“(Cruse) has little recollection of [the Keller murders), other

than vague memories, as he was intoxicated with alcohol and

Marijuana at the time.” Pet’r Ex. D. Despite being ordered to

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disclose all Brady material, the Commonwealth failed to provide

this report to Williams’ defense counsel. Williams now argues

that this violation substantially impaired his ability to cross-

examine and impeach Cruse.

The prejudice resulting from the Commonwealth's failure to

comply with its Brady obligations is clear. As noted in the

discussion of Claim IV(A) (1), Cruse played a critical role in the

Commonwealth's case against Williams. Because both defendants

offered drastically different versions of the shootings, Cruse’s

testimony on the triggerman issue and his credibility as a

witness determined who would be convicted of capital murder.

Information that Cruse had little to no recollection of the

murders would have undoubtedly undermined his credibility and

cast doubt on his ability to remember the shootings with such

detail.

Irrespective of this showing of “prejudice,” Respondent

arg’ s that this claim is procedurally defaulted because Williams

has failed to demonstrate why this claim could not have been

discovered with due diligence in time to be raised in state

court. The Fourth Circuit has held that “where the exculpatory

information is not only available to the defendant but also lies

in a source where a reasonable defendant would have looked, a

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defendant is not entitled to the benefit of the Brady doctrine.”

Hoke v. Netherland, 92 F.3d 1350, 1355 (4th Cir.) (citation

omitted), cert. denied, 117 S. Ct. 630 (1996).

Although defense counsel were entitled to rely on the belief

that the prosecution would comply with the Constitution and thus

produce all Brady material upon request,** Williams fails to

explain to the Court how the report came to the attention of

federal habeas counsel and why it could not have been previously

Giscovered through the exercise of due diligence on the part of

state habeas counsel. Williams has apparently been afforded the

same type of assistance at both state and federal habeas--namely,

court-appointed attorneys. The Court cannot discern any reason

and has been offered no explanation why state habeas counsel

failed to discover the report and present it in state habeas

proceedings. Accordingly, the Court will dismiss this claim.

VI. CLAIMS ADDRESSED ON THE MERITS

A. Applicable Law

1. Standard of Review

Under the recently revised Title 28 United States Code

Section 2254, a federal court may not grant a writ of habeas

Tee ROS GE EE ET ys

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corpus based on any claim that was adjudicated on the merits in

state court unless the claim

(1) 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; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

26 U.S.C. § 2254(d). Although this new standard requires more

deference to state court findings, it is not a complete

abdication of the federal court’s duty to provide meaningful

review.

2. Harmless Error

Federal habeas courts routinely conduct harmless error

analysis of errors occurring in capital cases. See, €.¢., Cabana

v. Bullock, 474 U.S. 376, 391 n.6 (1986); Smith v. Dixon, 14 F.3d

956, 978 (4th Cir.) (en banc), cert. denied, 513 U.S. 841 (1994).

In federal habeas corpus proceedings, an error is deemed harmful

only if it “had substantial and injurious effect or influence in

determining the jury’s verdict.” Chapman v. California, 366 U.S.

18, 24 (1967) (citing Brecht v. Abrahamson, 507 U.S. 619, 623

(1993) (quotation omitted)).

3. New Rule Docerine

Where a federal habeas petitioner seeks relief by

application of a constitutional rule, the Court must examine the

rule to determine whether it had been announced at the time the

petitioner’s conviction became final or whether the petitioner is

seeking an extension of longstanding precedent. As a general

matter, federal courts may not grant state prisoners relief in

collateral proceedings if to do so would create a “new rule” of

constitutional law, subject to two narrow exceptions.*” See

Teague v. Lane, 489 U.S. 288 (1989). Since Teague, the U.S.

Supreme Court has articulated the test to determine whether a

rule is a “new rule” such that it should not be applied

retroactively:

Though we have offered various formulations of

what constitutes a new rule, put “meaningfully

for the majority of cases, a decision announces

a new rule ‘if the result was not dictated by

precedent existing at the time the defendant’s

conviction became final.’”

Gilmore v. Taylor, 508 U.S. 333, 340 (1993) (citation omitted).

" Under Teague, a “new rule” should be applied

retroactively if (1) it “placles) certain kinds of primary,

private individual conduct beyond the power of the criminal law-

making authority to proscribe,” or (2) it is a “watershed rule[)

of criminal procedure,” implicating the fundamental fairness and

accuracy of the criminal proceeding. Teaque v. Lane, 489 U.S.

288, 311 (1989).

1305 AS?

tgs ey

Where the petitioner requests the Court not to apply a rule

announced after his conviction became final, but to adopt a rule

not previously announced, the Court must first determine whether

such a rule would be retroactively applied if adopted. If the

court determines that the rule, if adopted, would not be

retroactively applied, then the Court should dismiss the claim

without reaching the merits. See Penry v.Lymaugh, 492 U.S. 302

(1989). Under Teague, a court faced with this situation should

proceed in three steps. First, the Court must ascertain the date

on which the conviction and sentence became final. Second, the

Court must determine whether a state court considering the

defendant’s claim on that date would have felt compelled by

existing precedent to conclude that the rule sought by the

petitioner was required by the Constitution. Third, even if the

Court determines that the petitioner seeks the benefit of a new

rule, the Court must decide whether the rule falls into one of

the two Teague exceptions. See Caspari vy. Bohlen, 510 U.S. 383,

389 (1994).

Even if the Court determines that the petitioner does not

seek to apply or adopt a “new rule”, the Court must still

“inquire whether granting the relief sought would create a new

rule because the prior decision is applied in a novel setting,

1306 ASS

be, ‘

thereby extending the precedent.” Stringer v. Black, 503 U.S.

222, 228 (1992). The Court should be mindful, however, that the

“new rule” doctrine is not necesssrily implicated every time the

Court applies an escablished standard to a new set of facts. See

aa.

B. Claims Barred Under Hawks vy. Cox

The Virginia Supreme Court ruled that Claims II(A),

TII(A) (8), III(B) (3), III(B)(S), ITI(B) (6), VIT(A), VII(B),

VII(C), VII(D), VII(E), VII(F), VII(G), and VII(I) were barred

under the rule in Hawks vy. Cox, 211 Va. 91 (1970). “Hawks,

however, is not a true procedural default rule. ... Hawks

cannot prevent federal habeas review of federal constitutional

claims properly raised on direct appeal.” Turner vy. Williams, 35

F.3d 672, 890 (4th Cir. 1994) (citation omitted), overruled on

other crounds, O'Dell _y. Netherland, 95 F.3d 1214 (4th Cir.

1996). Therefore, the Court must determine whether Williams

raised the aforementioned claims on direct appeal.

A review of the record indicates that Williams did present

the claims, albeit more general versions, on direct appeal of his

conviction. The record further discloses that the Virginia

Supreme Court adjudicated those claims on the merits. Although

this Court has reviewed the aforementioned claims, it may only

1307 . «yg

grant relief in limited circumstances. See 28 U.S.C. § 2254(c).

As demonstrated below, none of the statutory exceptions apply anc

the Court will not grant relief as to these claims.

Claim I7(A)

Williams argues that the evidence adduced at trial was

insufficient to establish beyond a reasonable doubt that he was

the “triggerman.” Under Virginia law, only the immediate

perpetrator of a murder may be convicted of capital murder and

only after being found beyond a reasonable doubt to be the

triggerman who fired the fatal shot. Ses Va. Code § 18.2-18;

Johnson v. Commonwealth, 220 Va. 146, 150 (1979), cert. denied.

454 U.S. 920 (1981). Williams argues that given the facts in his

case, it is impossible to determine whether he or Cruse fired the

fatal shots. Williams accordingly argues that even if the Court

is unwilling to reverse at the guilt stage, he should be granted

a new sentencing hearing in order to determine on which capital

convictions the jury recommended the death penalty.

In evaluating a claim based on insufficiency of the

evidence, the reviewing court must view the evidence in the light

most favorable to the prosecution. Ses Jackson v. Virginia, 443

U.S. 307, 319 (1979). The critical inquiry is “whether the

record evidence could reasonably support a finding of guilt

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beyond a reasonable doubt.” Jd. at 318. “But this inquiry does

mot require a court to ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable

Goubt. Instead, the relevant question is whether, after

reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id.

at 316-19.

The evidence at trial painting Williams as the triggerman

primarily consisted of the testimony of Cruse. Cruse testified

that Williams fired all of the shots that killed Mr. Keller and

fired two of the three shots that killed Mrs. Keller. Williams

himself admitted to firing the first shot into Mr. Keller’s head.

While the physical evidence does not directly prove that Williams

was the triggerman, Cruse’s testimony and Williams’ own

testimony, when viewed in the light most favorable to the

Commonwealth, convincingly demonstrate that Williams played a

“direct part in inflicting injuries” and is thus liable for

Capital murder. See Strickler v. Commonwealth, 241 Va. 462,

cert. denied, 502 U.S. 944 (1991). Williams’ argument that Cruse

fired the first and fatal shot at Mrs. Keller was presented to

the jury and the Virginia Supreme Court which found that it did

1309 AGL

mot have merit in the face of the other testimony linking

Williams to the shootings. Simply, the jurors chose to believe

Cruse over Williams, and credibility determinations are properly

within their province. Thus, after reviewing the evidence in the

light most favorable to the prosecution, the Court finds that a

rational trier of fact could have found beyond a reasonable doubt

that Williams, and not Cruse, was the triggerman.

Claim III (A) (8)

Williams argues that the trial court erred when, over

defense counsel’s objection, it allowed the prosecutor to impeach

Williams’ testimony by referring to the fact that Williams was

the only witness permitted to stay in the courtroom and thus,

hear the testimony of all the other witnesses. Williams contends

that this error impermissibly burdened his constitutional right

to confront his accusers, to be present at all times during his

trial, to present evidence in his favor, and to compel process.

Respondent argues, however, that existing case law does not

prohibit a prosecutor from commenting in such a manner and that

to grant federal collateral relief on this claim would violate

the “new rule” doctrine.

A survey of existing case law confirms Respondent's

contention. Although Williams argues that Griffin v. California,

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380 U.S. 609 (1965) (Fifth Amendment violation to comment on the

defendant’s failure to take the witness stand), and Brooks v.

Tennessee, 406 U.S. 605 (1972) (Fifth Amendment violation to

require the defendant to testify first for the defense or not at

all), implicitly support his position, the Court finds that the

result urged by Williams is not dictated by existing precedent.

To hold otherwise would create a “new rule” which this Court is

severely restricted from doing under Teagus and its progeny.

Although the Court has concerns about the propriety of the

prosecutor’s comments in this particular case, prosecutorial

impeachment of the defendant’s testimony through this type of

cross-examination has not yet been held violative of the

defendant’s constitutional rights--notwithstanding Williams’

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persuasive Brooks argument to the contrary. Although the Court

must thus deny Williams relief on this claim, a final point needs

to be made. In rejecting this claim on direct appeal, the

Virginia Supreme Court stated “[w]e fail to see how [(Williams’

constitutional) rights are violated by a question that reflected

what the jury already knew.” Williams, 248 Va. at 544. In

Griffin, the U.S. Supreme Court rejected this exact rationale in

the context of prosecutorial comment on the defendant’s failure

to testify:

1311 ag

What a jury may infer, given no help from the

court, is one thing. What it may infer when the

court solemnizes the silence of the accused into

evidence against him is quite another.

380 U.S. at 614-15. This Court similarly finds this aspect of

the Virginia Supreme Court’s justification for dismissing the

claim erroneous and unpersuasive.

Claim 171 (8) (3)

Williams argues that the trial court erred in denying his

motion for jury instructions on the meaning of a life sentence

and his mandatory 30 year ineligibility for parole. In support

of this argument, Williams cites Simmons v. South Carolina, 114

S. Ct. 2187 (1994), wherein the U.S. Supreme Court held that a

sentencing jury must be instructed that a capital defendant is

ineligible for parole when the prosecution argues “future

dangerousness.” Recently, however, the U.S. Supreme Court held

that Simmons constitutes a “new rule” for purposes of habeas

review and thus, cannot be used to overturn a habeas petitioner's

death sentence. See O'Dell v. Netherland, 117 S. Ct. 1969

(1997). Accordingly, Williams’ claim which seeks “a logical and

modest extension” of Simmons is likewise barred under the Teague

doctrine.

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Claim i721 (8) (5)

Williams argues that the trial court erred in allowing the

prosecutor to present evidence of the unadjudicated Prince Edward

County homicides at the penalty stage as proof of “future

dangerousness.” Courts have uniformly rejected the argument that

evidence of prior unadjudicated criminal conduct cannot be

considered in assessing “future Gangerousness.” See, e.¢., Eaton

MAngelone, 1998 WL 128570, *9 (4th Cir. 1998) (citing cases) ;

seealso Jurek v. Texas, 428 U.S. 262, 276 (1976) (stating that

the jury must “have before it all possible relevant information

about the individual defendant whose fate it must determine”).

Thus, the Virginia Supreme Court’s rejection of Williams’ claim

was not contrary to, or an unreasonable application of, clearly

established federal law.

Claim I11(B) (6)

Williams asques that not only did the trial court err in

allowing evidence of unadjudicated crimes, but that it failed to

instruct the jury that such crimes must be proved beyond a

reasonable doubt in order to be used in the sentencing

Getermination. This Court has repeatedly rejected claims that

Virginia’s “future dangerousness” factor is unreliable because it

may be proved with evidence of unadjudicated crimes. See. e.¢.,

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Breard v. Netherland, 949 F. Supp. 1255, 1267 (£.D. Va. 1996)

(Williams, J.), aff'd, 134 F.3d 615 (4th Cir. 1998); Prusts vy.

Thompson, 771 F. Supp. 1428, 1442-43 (E.D. Va. 1991) (Spencer,

3.), afftd, 996 F.2d 1560 (4th Cir.), cern. denied, 510 U.S. 984

(1993); see also Richardson v. Johnson, 864 F.2d 1536, 1541 (11th

Cir.) (citing cases), cert. denied, 490 U.S. 1114 (1989).

Accordingly, the trial court did not err in refusing to instruct

the jury that the unadjudicated Prince Edward County homicides

must be proved beyond a reasonable doubt.

Claim Vil (A)

Williams argues that the Virginia death penalty statutes are

unconstitutional as they fail to provide the jury with any

Guidance on the meaning and use of mitigation evidence. The

Fourth Circuit, however, has routinely rejected the claim that

the standard Virginia sentencing instruction does not adequately

inform the jury on the issue of mitigation. See. e.¢., Buchanan

v. Angelone, 103 F.3d 344, 347-48 (4th Cir. 1996) (holding that

“Virginia’s death penalty scheme survives constitutional

scrutiny, despite its ‘failure to instruct the jury on statutory

mitigating factors’”) (citation omitted); Jones vy. Murray, 947

F.2d 1106, 1119-20 (4th Cir. 1991), cert. denied, 503 U.S. 973

(1992); Clozza v. Murray, 913 F.2d 1092, 1005 (4th Cir. 1990),

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cert. denied, 499 U.S. 913 (1991). In light of this precedent,

Williams’ claim must fail.

Claims Vil(8) and vitic)

Williams argues that the “vileness” aggravating factor is

unconstitutionally vague in that it does not define what

constitutes “outrageously or wantonly vile, horrible or inhuman

(conduct].” Va. Code § 19.2-264.4(C). The Virginia Supreme

Court rejected this challenge outright as already addressed and

answered by the decision in Mickens v. Commonwealth, 247 Va. 395,

402-403 (1994). The Fourth Circuit has likewise rejected this

challenge on numerous occasions. See. e.c., Turmer v. Williams,

35 F.3d 872, 891-94 (4th Cir. 1994); Jones v. Murray, 976 F.24

169, 174 (4th Cir.), cert. denied, 505 U.S. 1245 (1992). The

Court rejects Williams’ claims for the same reasons.

Claims VII(D). VII(E). and VII/F)

In attacking the “future dangerousness” aggravating factor,

Williams argues that it is unconstitutionally vague, misleading,

and unreliable and that the use of unadjudicated criminal acts is

improper. Fourth Circuit case law holds otherwise. See Spencer

wwiMursay, 5 F.3d 758, 764-65 (4th Cir. 1993), cert. denied, 510

U.S. 1171 (1994); Giarratano v. Procunier, 891 F.2d 483, 489-90

(4th Cir. 1989), cert. denied, 498 U.S. 881 (1990). Furthermore,

PR GTO es Pe oe —

eet y

hese

for the reasons stated above with respect to Claims III(B) (S) and

III(B) (6), the Court rejects these claims.

Craim ViliG)

Williams claims that the Virginia Supreme Court failed to

engage in meaningful or fair appellate review of his case under

Va. Code § 17-110.1, which requires the court to ensure that the

death penalty was not “imposed under the influence cf passion,

prejudice or any other arbitrary factor.” A review of existing

case law reveals, however, that the existence of such a claim has

never been recognized or alluded to by the U.S. Supreme Court.

See George v. Angelone, 901 F. Supp. 1070, 1090 (E.D. Va. 1995),

aff'd, 100 F.3d 353 (4th Cir. 1996), cert. denied, 117 S. Ct. 854

(1997). Accordingly, the Court must dismiss Williams’ challenge

to the state appellate process as barred by the “new rule”

doctrine.

Claim VirT(t)

Williams argues that imposition of the death penalty

constitutes cruel and unusual punishment in violation of the

Eighth Amendment. The Virginia Supreme Court, however, rejected

this claim as already answered in Beaver vy. Commonwealth, 232 Va.

521, 527, cert. denied, 483 U.S. 1033 (1987). The Fourth Circuit

similarly has rejected this argument outright. See Briley vy

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Booker, 746 F.2d 225, 227 (4th Cir. 1984). Accordingly, this

Court must also reject this claim of constitutional error.

Williams asserts that a juror may have introduced

extrajudicial evidence to the jury. Specifically, Williams

claims that Juror Blanton may have received information from her

husband, a Virginia State Trooper, who had previously arrested

Williams on unrelated charges. Although the jury was sequestered

Guring the trial, the jurors were allowed to return home after

being selected. It is during this brief period of time that

Williams believes Juror Blanton learned of his previous arrests

from her husband--extrajudicial information which she may have

then shared with her fellow jurors.

It is well-settled that “any private communication, contact,

or tampering, directly or indirectly, with a juror during a trial

about the matter pending before the jury is, for obvious reasons,

deemed presumptively prejudicial ... .” Bemmer vy. United

States, 347 U.S. 227, 229 (1954). In the Fourth Circuit, this

presumption of prejudice is established if “there is a reasonable

possibility that the jury’s verdict was influenced by the

‘

material that improperly came before it.” Unired Stazes vw.

Barnes, 747 F.2d 246, 250 (4th Cir. 1984) (citations and

quotations omitted).

In the instant case, however, Williams has failed to provide

any evidence that Juror Blanton's husband told her about the

previous arrests or that if factual, Juror Blanton shared this

information with the other jurors. This omission is particularly

glaring in light of the unrebutted affidavit submitted by Juror

Blanton in the state habeas proceedings. See Resp’t State Ex. E.

In that affidavit, Juror Blanton unequivocally denies Williams’

allegations. She states that she answered the trial court’s voir

Gire questions truthfully; she never discussed the case with her

husband until the trial concluded; no extrinsic information was

communicated to her; and she had no knowledge of Williams’ prior

record until evidence of it was introduced at trial. See id.

Although Wiliiams is correct that the burden is on the government

to prove that the jury’s exposure to extrajudicial information

was harmless, the Court need not reach that issue here because

Williams has failed to establish the threshold issue--that

extrajudicial information was, in fact, introduced to the jury.

In the absence of any rebuttal evidence, the Court does not

find that the Virginia Supreme Court’s dismissal of this claim

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was contrary to clearly established precedent or the result of an

umreasonable determination of the facts. See 28 U.S.C. §§

2254(d), (e). Accordingly, this claim will be dismissed.

2. dJnosutiiciency of the Evidence

In evaluating a claim based on insufficiency of the

evidence, the reviewing court must view the evidence in the light

most favorable to the prosecution. See Jackson v. Virginia, 443

U.S. 307, 319 (1979). The critical inquiry is “whether the

record evidence could reasonably support a finding of quilt

beyond a reasonable doubt.” Id. at 318. “But this inquiry does

not require a court to ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable

doubt. Instead, the relevant question is whether, after

reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id.

at 318-19.

Claim I1(8)

Williams argues that the evidence adduced at trial was

insufficient to establish beyond a reasonable doubt that the

robbery and rape were committed sufficiently close in time and

place to the shooting of the Kellers to elevate their subsequent

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murders to capital murder. Williams asserts that “(t]he rape anc

“

robbery had been completed long before the murders occurre

Pet. at 39. The Court finds that this assertion is clearly

unsupported by the evidence.

It is undisputed that Williams and Cruse went to the

Kellers’ house intending to commit robbery. While there,

Williams and Cruse ordered the Kellers to remove all their

clothes, locked them in closets, searched the house, raped Mrs.

Keller, and forced the Kellers to “take a walk” after they had

showered and changed into clean clothes. Shortly thereafter,

Williams and Cruse killed the Kellers so as to not leave any

witnesses. Based on the foregoing, the Court finds that the

record amply supports the conclusion that the rape and robbery

were sufficiently close in time and place to the murders to be

predicate felonies for the capital conviction. Accordingly, this

claim must be dismissed.

ror

Williams claims that the trial court erred when it granted

his request for a Bill of Particulars only as to prior

unadjudicated acts of criminal conduct on the issue of “future

dangerousness.” Williams contends that had the trial court

1320 AW

required the Commonwealth to specify before trial the components

of the “vileness” agcravator, the Commonwealth would not have

mistakenly introduced the photographs of the Prince Edward County

victims to prove “vileness” and/or defense counsel would have had

the opportunity to file a motion in limine in order to prevent

the submission of the photographs. Williams argues that this

error violated his Sixth Amendment right to be informed of the

mature of the charges against which he must defend. See. ¢.¢..,

toze Buffalo, 390 U.S. 544 (1968); Cole vy. Arkansas, 333 U.S.

196 (1948); Rosen vy. United States, 161 U.S. 29 (1896).

On direct appeal, the Virginia Supreme Court rejected this

Gue process claim:

In our opinion, due process does not require

that the Commonwealth limit itself to a pre-

trial construction of the character of

Williams’s conduct. Furthermore, Williams

has no constitutional right to a bill of

particulars if the indictments are sufficient

to give him notice of the nature and character

of the offenses charged, which these indict-

ments do, so that he can make his defense.

Strickler v. Commonwealth, 241 Va. 482, 490-

91, 404 S.E.2d 227, 233, cert. denied, 502

U.S. 944 (1991); Spencer v. Commonwealth,

238, (sic) Va. at 303-304, 3864 S.E.2d at 791.

Williams, 248 Va. at 538. Respondent argues that this Court must

Gefer to the Virginia Supreme Court’s reasonable rejection of

Williams’ claim and that to grant federal collateral relief would

es ene a ee a ee oe

violate the “new rule” doctrine.

rsuant to a recent U.S. Supreme Court decision, Gray v.

Netherland. 116 S. Ct. 2074 (1996), the Court finds that

Respondent is correct. In Gray, the U.S. Supreme Court held that

granting relief on a petitioner’s claim that he had a due process

right to be given adequate notice of the evidence to be used

against him during the penalty stage of his capital murder trial

would require the adoption of a “new rule.” See ig. at 2084.

Although Williams argues that he was not requesting “penalty-

stage discovery,” the Court finds otherwise. Because federal

habeas relief is not available on a “notice-of-evidence” claim,

the Court must dismiss this claim.

4. Prosecutorial Misconduct

Claim Iv(A) OO)

Williams alleges that the Commonwealth violated Brady vy.

Maryland, 373 U.S. 83 (1963), by failing to disclose to the

defense that Cruse did in fact have an agreement with the

Commonwealth for a life sentence in exchange for his testimony

against Williams. Respondent points out, however, that both the

Commonwealth’s Attorney and Cruse’s attorney have confirmed under

oath that Cruse had no formal plea agreement with the

Commonwealth at the time of Williams’ trial. See Resp’t State

1322 age

Ex. C, D (affidavits).

Vig

It is undisputed that prior to trial, the Commonwealth

informed defense counsel that a plea agreement had previously

been reached with Cruse, that the agreement had been breached by

Cruse, and that the Commonwealth had revoked the agreement.

However, the Commonwealth never produced a copy of the revoked

written plea agreement to defense counsel. In fact, until the

agreement was introduced by the Commonwealth at trial, defense

counsel had thought that the agreement had been oral. See Aff.

of R. Donald Ford, Jr. q 8.

In any event, Williams contends that Cruse and the

Commonwealt! did have an understanding that Cruse would not

receive the death penalty in return for his cooperation and

testimony against Williams. In support of this allegation,

Williams proffers the following:

(1) statements made by Cruse and the prosecutor during

Cruse’s direct and redirect examination which

indicated that a plea agreement was expected as

a result of Cruse’s testimony against Williams;

Q: You’ve indicated to the jury you’re charged with

capital murder right now; is that correct?

A: Correct.

Q: Is it your understanding that the Judge is going

to decide whether you live or die?

A: Correct.

Tr. 1-4-94 at 212 (emphasis added).

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(2) statements made by the prosecutor during closing

arguments which raised a clear inference that there

was a direct relationship between the content of

Cruse’s testimony and his sentence on charges of

capital murder;

[Cruse] sits here today facing the death penalty;

he sits here facing capital murder, two counts of

capital murder. And like he told you right now

his back is against the wall; if he lies. he cies.

and that is his situation.

Tr. 1-6-94 at 52 (emphasis added).

(3) Cruse’‘s plea of guilty to the capital murder of Mrs.

Keller two months after Williams’ conviction;

(4) the reduction of the charge of first degree murder of

Mr. Keller to participation as a principal in the

second degree;

(5) the fact that Cruse pled guilty before a trial date was

ever set in his case; and

(6) the Commonwealth's sentencing recommendation that

Cruse‘s life be spared.

Williams argues that when viewed together, this sequence of

events strongly suggests that some sort of understanding or

informal agreement existed between Cruse and the Commonwealth at

the time of Williams’ trial.

In dismissing this claim, the Virginia Supreme Court

provided no insight as to the manner or reason by which it made

its factual or legal determinations. The deferential standard

mandated by 28 U.S.C. § 2254(d) therefore has less meaning in

1324 Av6G

this situation. See Cardwell] _yv. Netherland, 971 F. Supp. 9987

(E.D. Va. 1997). Tr Court is mindful, however, that its review

is restzicted to those facts as presentec in state court

proceedings.

Pursuant to Brady, the Commonwealth is required to disclose

evidence cnet is favorable to the defendant and “material either

to guilt or punishment.” Brady, 373 U.S. at 87. This includes

impeachment evidence because “such evidence is ‘evidence

favorable to an accused,’ [) so that, if disclosed and used

effectively, it may make the difference between conviction and

acquittal.” United States vy. Bagley, 473 U.S. 667, 676 (1985)

(internal citation omitted). Disclosure of such evidence is

especially important where, as here, “the reliability of a given

witness may well be determinative of guilt or innocence[.})” Id.

at 677.

In the instant case, Cruse played a critical role in the

Commonwealth’s case against Williams. It is undisputed that the

physical evidence could not conclusively establish who fired the

fatal shots. Not only could it not be determined in what

sequence the shots were fired, but the bullet fragments from Mr.

Keller’s wounds could not be identified. Given that both Cruse

and Williams offered drastically different versions of the

Wed

shootings,** Williams’ conviction clearly hinged on the

credibility of each defendant. As evidenced by the jury’s

verdict, the jury chose to believe Cruse over Williams. Had the

jury known that Cruse had some sort of agreement, understanding,

or expectation with the Commonwealth regarding his sentence for

the Keller murders, there is little doubt that their assessment

of Cruse’s credibility would have been affected. As the U.S.

Supreme Court has stated, “([t)he fact that the stake [in the

petitioner’s conviction) was not guaranteed through a promise or

binding contract, but was expressly contingent on the

Government’s satisfaction with the end result, served only to

strengthen any incentive to testify falsely in order to secure a

conviction.” Bagley, 473 U.S. at 683.

Accordingly, Williams was entitled to know whether any

informal understanding had been reached between Cruse and the

Commonwealth prior to or at the time of Cruse’s testimony at

trial. There being no evidence that defense counsel had any

knowledge of or access to such information other than the revoked

“ Cruse testified that he fired only once--at Mrs. Keller--

and that Williams fired all other shots. Williams, however,

testified that he fired only once--the non-fatal wound to Mr.

Keller’s head--and that Cruse fired all other shots, including

the three shots to Mrs. Keller's head.

1326 A78

written plea agreement,*® the Court will grant Williams an

evidentiary hearing on this claim. The motion to dismiss will be

denied.

5. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668 (1984), the U.S.

Supreme Court set forth the standard for determining whether a

criminal defense lawyer has acted so egregiously as to deprive

the defendant of his Sixth Amendment right to counsel.

Petitioner must establish two elements: first, that counsel's

performance was deficient; and second, that the deficient

performance prejudiced the defendant. See id. at 687. This is

an exacting standard: “The benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial

cannot be relief on as having produced a just result.” Jd. at

666.

Under the first prong, the petitioner must demonstrate that

“counsel’s representation fell below an objective standard of

reasonableness.” Id. at 687-88. In order to avoid the

Hoke v. Netherland, 92 F.3d 1350, 1355 (4th Cir.), cert.

378, 381 (4th Cir. 1990).

1327 A79

ot flO SLE

ES Me ae

distorting effects of hindsight, however, the Court must evaluate

“the reasonableness of counsel’s challenged conduct on the facts

of the particular case, viewed as of the time of counsel’‘s

conduct.” Id. at 690. The Court “must [also) appreciate the

practical limitations and tactical decisions that trial counsel

faced.” Bunch vy. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991),

cext. denied, 505 U.S. 1230 (1992). Rather than second-quessing

decisions which are the result of trial tactics or strategy, the

reviewing court must “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689; see also Williams vy.

Dixon, 961 F.2d 448, 451 (4th Cir.), cert. denied, 506 U.S. 991

(1992); McDougall v. Dixen, 922 F.2d 518, 539 (4th Cir. 1990),

cert. denied, 501 U.S. 1223 (1991).

The second prong of the Strickland test, the “prejudice”

inquiry, requires a showing that “counsel’s errors were s0

serious as to deprive the defendant of a fair trial, a trial

whose result is unreliable.” 466 U.S. at 687. Accordingly, the

petitioner must demonstrate “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. A reasonable

probability is a “probability sufficient to undermine confidence

in the outcome.” Jd. Counsel‘s errors, even if unreasonable,

must be shown to have “actually had an adverse effect on the

defense.” Id. at 693.

When analyzing ineffective assistance of counsel claims

involving appellate counsel, the Fourth Circuit has held that

appellate counsel are “entitled to a presumption that [they]

decided which issues were most likely to afford relief on

appeal.” Evans v. Thompson, 881 F.2d 117, 125 (4th Cir. 1989),

cert. denied, 497 U.S. 1010 (1990). Furthermore, counsel are not

obligated to assert all non-frivolous issues. Rather,

“(w)innowing out weaker arguments on appeal and focusing on those

more likely to prevail, ter from incompetence, is the hallmark of

effective appellate advocacy.” Smith v. South Car-!ina, 882 F.2d

895, 699 (4th Cir. 1989), cert. denied, 493 U.: -..46 (1990)

(quotations and citations omitted).

The Virginie Supreme Court has considered and rejected the

ineffective assistance of counsel claims discussed below. Under

the new standard set forth in § 2254(d), this Court’s review is

limited to a determination of whether or not the Virginia Supreme

Court’s resolution of these claims was a reasonable

interpretation of the Strickland standard and other relevant U.S.

Supreme Court precedent. However, this Court notes that the

: . 58

1929 pe

Virginia Supreme Court issued a one page summary order in

Williams’ state habeas petition.*° Where the Virginia Supreme

Court provides no insight as to the manner or reason by which it

applied federal law to the facts of the case, a federal court

must necessarily perform its own review of the record. The

deferential standard mandated by § 2254(d)(1) has less meaning in

this situation. See Cardwell) _v. Netheriand, 971 F. Supp. 997

(E.D. Va. 1997).

Claim ViA) (1)

In his federal habeas petition, Williams argues that defense

counsel’s performance was constitutionally deficient because (1)

counsel failed to object tc the trial court’s erroneous charge on

the triggerman rule and the degrees of murder, and (2) counsel

failed to preserve the claims regarding the trial court’s refusal

to give Williams’ proposed Instructions #19 and #20.

On direct appeal, the Virginia Supreme Court, citing

Strickler vy. Commonwealth, 241 Va. 482, cert. denied, 502 U.S.

944 (1991), ruled that the trial court’s Instruction #18

2% Specifically, the Virginia Supreme Court held that it

found “no merit in petitioner's remaining allegations” and

ordered that Williams’ state habeas petition be dismissed. Order

Upon a Petition for a Writ of Habeas Corpus, issued by the

Virginia Supreme Court, March 18, 1996.

correctly stated the triggerman rule. See Williams, 248 Va. az

545. Under Virginia law, only the immediate perpetrator cf a

murder may be convicted of capital murder. See Va. Code § 18.2-

18; Johnson v. Commonwealth, 220 Va. 146, 150 (1979), cert.

Genied, 454 U.S. 920 (1981). “[W)here two or more persons take a

Girect part in inflicting fatal injuries, [however,] each joint

participant is an ‘immediate perpetrator’ for the purposes of the

Capital murder statutes.” Strickler, 241 Va. at 495. Although

there is conflicting evidence as to which shot actually killed

the Kellers, Cruse’s testimony and Williams’ own testimony

convincingly demonstrate that Williams played a “direct part in

inflicting fatal injuries” and thus, is liable as an “immediate

perpetrator” of the Kellers’ murders. See ig. That being the

case, the Court finds that the trial court did not give an

erroneous charge and that defense counsel did not perform

ineffectively by failing to object.

As for defense counsel’s failure to preserve the claims

regarding the trial court’s rejection of Williams’ proposed

instructions, the Virginia Supreme Court ruled that pursuant to

Jenkins v. Commonwealth, 244 Va. 445, 460-61 (1992), cert.

Genies, 507 U.S. 1036 (1993), Williams had waived those claims

because counsel merely “incorporate([d] by reference” the argument

TE LEO LO A EH OI IEE EINE NN ONS IEE ES SS Tim

yam

made in the trial court for consideration on appeal. Ss&

Williams, 248 Va. at 545. Assuming arguendo that counsel's

performance was deficient in this regard, Williams must still

demonstrate prejudice. He fails to do so in this case. The

proposed instructions were not only a misstatement of Virginia

law, but they directly contradicted the charge which was

ultimately given to the jury--a charge which the Virginia Supreme

Court found to be a correct statement of Virginia law.

Accordingly, the Court finds that Williams has failed to satisfy

either prong of the Strickland test.

Claim ViA) (2)

Williams essentially argues that defense counsel failed to

effectively impeach Cruse’s testimony. Specifically, Williams

takes issue with the following acts or omissions of defense

counsel: (1) failure to object to leading questions; (2) failure

to cross-examine Cruse on the rape of Mrs. Keller, his alleged

breach of the plea agreement, his motives for testifying, his

failure to take a polygraph examination as required by the plea

agreement, the written plea agreement, his consumption of alcohol

on the night of the murders, and his ability to recall the

details of that night; (3) failure to interview Cruse or his

lawyers regarding the nature, extent, or existence of a plea

1332 34

agreement; and (4) failure to interview law enforcement officers

regarding the nature, extent, or details of any statements mace

by Cruse to law enforcement officers.

To refut Williams’ allegations, Respondent has submitted the

unrebutted affidavit of Williams’ defense counsel which was filed

in the state habeas proceedings. Among other things, the

affidavit details defense counsel's investigation into and

preparation for Cruse’s testimony. Specifically, defense counsel

reviewed the Commonwealth’s investigative file, Cruse’s criminal

record, ietietd statements to the police, and Cruse’s testimony

at the preliminary hearings; interviewed the primary State Police

investigator and the attorneys who represented Cruse at the

preliminary hearings; and created a strategy to paint Cruse as “a

person who repeatedly had lied to the police, and who, although

he said he no longer had a plea agreement, was testifying the way

he thought the prosecution wanted him to testify about Williams’

role in the offenses in order to save his own life.” Resp’t

Federal Ex. D at 3. In light of defense counsel’s

representations, it appears that Williams’ complaints amount to

little more than second-guessing a trial strategy that did not

work. Accordingly, the Court finds that Williams has failed to

bear his eeciten a proving deficient performance and prejudice

1333

ASS

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(24>

under Strickland.

Claim Vial (3)

Williams claims that defense counsel were ineffective

because they failed to investigate, develop, and present evidence

of voluntary intoxication as a defense and to impeach his co-

defendant, Cruse, with evidence of his intoxication. Although

Respondent addresses Williams’ claim regarding intoxication as a

defense, he argues that the claim regarding counsel’s failure to

impeach Cruse is defaulted because it was never raised in state

court. The Court will address each contention in turn.

a. dJnotoxication as a Defense

The affidavit submitted by Williams’ defense counsel belies

his claim that they were ineffective in failing to mount a

voluntary intoxication defense. In fact, the affidavit

Gemonstrates that after a reasonable investigation, counsel

determined that voluntary intoxication would not be a viable

defense in Williams’ case. Counsel based this conclusion on

their multiple interviews with Williams in which he repeatedly

gave “a consistent, coherent account” of the Kellers murders and

Prince Edward County homicides; thorough research of Virginia law

on the issue of voluntary intoxication as a defense to

premeditated murder; and Williams’ own testimony at the guilt

1334

A S86

stage of trial. In counsel’s opinion, Williams had the capacity

for premeditation and the ability to act upon his plans,

irrespective of the amount of alcohol or types of drugs he had

consumed. Under Strickland, counsel’s strategic decision to

forego a voluntary intoxication defense after a peniinabte

investigation of that defense cannot be said to be so outside

“the wide range of reasonable professional assistance[)” so as to

constitute ineffective assistance of counsel. Strickland, 466

U.S. at 6869.

b. Intoxication to Impeach Cruse

In his state habeas petition, Williams claimed ineffective

assistance of counsel with respect to defense counsel’s failure

to argue intoxication to the jury as a basis for impeaching

Cruse’s testimony. In his federal habeas petition, Williams’

claim is that defense counsel failed to cross-examine Cruse on

the issue of intcxication. Respondent contends that the claims

are distinct and having failed to present the latter in state

court, Williams is barred from raising it on federal habeas

review. The Court agrees.

Claim V{(A) (4)

Williams premises this ineffective assistance of counsel

claim on defense counsel’s failure to object when the trial court

1335

A 87

allegedly omitted a jury charge on the Commonwealth’s burden of

proving beyond a reasonable doubt that Williams committed the

crimes. Respondent contends that the record clearly refutes this

claim.

During both the jury selection process and at the guilt

stage, the trial court repeatedly informed the jurors that

Williams was presumed innocent “and not guilty unless and until

the Commonwealth proves each and every element beyond a

reasonable doubt.” See. 2.¢.., Tr. 1-3-94 at 20-21, 119-120, 155-

156, 210-211, 264-265; 1-6-94 at 9. Furthermore, in the

instructions listing the elements of each charged offense, the

trial court stated that “the Commonwealth must prove beyond a

reasonable doubt each of the following elements.” Tr. 1-6-94 at

11-22. The trial court also instructed the jury that “(t)here is

no burden on the defendant to produce any evidence.” See. ¢.¢.,

Tr. 1-6-94 at 10.

Based on the foregoing, the Court is hard-pressed to find

how defense counsel’s performance could be deficient in this case

when the record clearly shows that the trial court did instruct

the jury on the burden of proof. Accordingly, the Court finds

that Williams has failed to satisfy the Strickland test.

1336

Claim Via) (5)

Williams claims that defense counsel were ineffective on

voir dire. Specifically, Williams argues that defense counsel

failed to object to the trial court’s alleged errors on voir

dire, failed to rehabilitate three specific jurors, failed to

object to confusing and misleading prosecutorial questions,

failed to preserve the issue for appellate review, and failed to

conduct extensive voir dire on the issue of pretrial publicity

The transcript of the jury selection proceedings reveals

that Jurors Trent and Holman initially indicated that they could

fairly consider giving the death penalty. Upon further

questioning, however, Jurors Trent and Holman expressed serious

reservations about imposing a death sentence regardless of the

evidence presented and the instructions given by the court.

Although the paper record is somewhat confusing as to the

equivocal answers given by Jurors Trent and Holman, this Court is

required to give deference to the state trial judge’s findings of

fact. See § 2254(e) (1). This Court must also refrain from

second-guessing defense counsel’s tactical decisions to not

1337

A 89

object to the prosecutor’s questions, attempt further

rehabilitation, or object to the exclusion for cause of Jurors

Trent and Holman. Even assuming arguendo that defense counsel

were deficient, Williams has failed to come forth with clear and

convincing evidence to rebut the trial court’s finding that

Jurors Trent and Holman could not impartially consider imposing a

death sentence. Accordingly, the Court finds that Williams has

failed to satisfy the Strickland test.

3. durer Bernard

Both the prosecution and the defense agreed to strike Juror

Bernard for cause. Defense counsel’s affidavit clearly

Gemonstrates that counsel made a strategic decision to not object

to the prosecutor’s challenge for cause because “we were of the

opinion that, on balance, the juror’s answers indicated she would

be a pro-prosecution juror.” Resp’t Federal Ex. D at 2. Absent

evidence to the contrary, the Court will not second-guess defense

counsel’s tactical decision. Furthermore, Williams has failed to

demonstrate that except for counsel’s failure to object to the

removal of Juror Bernard for cause, there is a reasonable

probability that the outcome of the proceeding would have been

aifferent.

1338

veep

b. ; 1 -3s - Cerin --

for Cause

Respondent contends that this claim is barred from federal

habeas review because it was never raised in state court.

Williams argues, however, that this is Williams’ first

opportunity to present this claim because both the Commonwealth

and Juror Stinnett withheld vital information on voir dire.

Specifically, Juror Stinnett failed to reveal her former marriage

to a prosecution witness, Deputy Sheriff Claude B. Meinhard who

investigated the Keller murders; and the prosecutor failed to

disclose that he had represented Deputy Sheriff Meinhard during

his divorce proceedings.

Although the Court is troubled by these allegations,

Williams has failed to demonstrate how dexense counsel was

deficient in failing to challenge Juror Stinnett for cause.

Williams himself states that “Lilf counsel were aware to (sic)

Stinnett’s relationship to trial witness Meinhard, failed to

reveal the relationship to Williams or to the court, and failed

to move to strike Stinnett for cause, then counsel were

ineffective under Strickland and Williams was prejudiced.” Pet’r

Opp’n at 52 (emphasis added). Williams, however, has presented

no evidence to establish that defense counsel actually knew of

1339

A91L

a ——

Juror Stinnett’s former marriage to Deputy Sheriff Meinharc.

Accordingly, the Court finds no basis for holding that defense

counsel were ineffective in not questioning Juror Stinnettt about

matters of which counsel were completely unaware.

c. Failure to Conduct Extensive Voir Dire on obs

lssusc of Pretrial Publicity

The Constitution guarantees criminal defendants a jury

consisting of “impartial, indifferent” persons. Muxphy v.

Florida, 421 U.S. 794, 799 (1975) (citation omitted). In this

case, several local newspaper stories were published about

Williams and his involvement in the Keller murders as well as the

Prince Edward County murders in the months leading up to his

trial. In light of this, Williams argues that defense counsel

were constitutionally ineffective at voir dire by failing to

determine whether individual jurors had been influenced by

pretrial publicity to Williams’ prejudice.

As a preliminary matter, the Court notes that defense

counsel did move for a change of venue which the trial court

denied. As to the voir dire process, the trial transcript

reflects that the trial judge questioned all the prospective

jurors as to their exposure to pretrial publicity. See. €.¢.,

Tr. 1-3-94 at 56-57, 75-76. In those instances where a

134n

A92

prospective juror had been exposed to pretrial publicity, the

trial judge pursued the issue of prejudice.

“y of you formed any opinion as to the

ax imnocence by virtue of what you have

hea... or read?

Considering what you have read about this case,

do you believe that you can enter the jury box

with an open mind and wait until the entire case

is presented before you reach any fixed opinion

or conclusion concerning the guilt or innocence

of the accused?

Tr. 1-3-94 at 57. The trial judge then followed up his questions

concerning exposure to pretrial publicity with questions

concerning preconceptions about Williams’ guilt. The judge also

inquired about pre, udice against both Williams and the

Commonwealth. Finally, the judge gave defense counsel an

Opportunity to examine the prospective jurors. Contrary to

Williams’ assertion, defense counsel did pursue those prospective

jurors who had admitted to being exposed to pretrial publicity.

See. e.9., Tr. 1-3-94 at 67-68, 85-86.

Given that the trial court had already reached “the heart of

the issue with respect to pre-trial exposure to publicity--that

is, whether the [prospective jurors) had developed a fixed pre-

1341

A93

ast

conception,”** the Court finds that defense counsel’s tactical

decision to not conduct a more detailed voir dire did not

prejudice Williams’ rights in this regard. Accordingly, Williams

has failed to satisfy both prongs of the Strickland test.

Claim Via) (6)

Prior to trial, Williams moved for the appointment of a

private investigator to assist in investigating issues of

mitigation evidence and a possible change of venue; the trial

court denied the motion. On appeal, Williams argued that

investigative assistance was required to investigate (1) Cruse‘s

credibility and (2) the evidence of the Prince Edward County

murders. Because these arguments were not presented to the trial

court, the Virginia Supreme Court refused to consider the claim.

See Williams, 248 Va. at 539. Williams now claims ineffective

assistance of counsel on those grounds.

The Virginia Supreme Court has repeatedly held that an

indigent capital defendant is not constitutionally entitled to

the appointment of a private investigator. See. e.c., Gray vy.

Commonwealth, 233 Va. 313, 330 (1987); Watkins v. Commonwealth.

86). An

229 Va. 469, 478 (1985), cert. denied, 475 U.S. 1099 (19 )

2 Clanton v. Blair, 619 F. Supp. 1491, 1501 (E.D. Va. 1985)

(Merhige, J.).

134°

A94

indigent capital defendant is, however, entitled to be provided

with “the basic tools of an adequate defense.” Ake v. Oklahoma,

470 U.S. 68, 77 (1985). This could include non-psychiatric

experts if the defendant is able to make “a particularized

showing of need for the assistance of such experts.” HEusske v.

Commonwealth, 252 Va. 203, 211 (1996), cert. denied, 117 S. Ct.

1092 (1997).

In the instant case, Williams asserts that the discovery of

a September 1993 psychological report on Cruse*? is a prime

example of information that would have been beneficial to

Williams’ defense, but that could not be discovered without an

investigator. In the report, the consulting psychiatrist notes

that Cruse has “little recollection of the event, other than

vague memories([)”--information which would have been beneficial

in challenging Cruse’s trial testimony. Pet’r Ex. D. Respondent

argues, however, that Williams is precluded by 28 U.S.C. §

2254 (e) (2) from introducing this report in support of his federal

habeas petition because it was never presented to the state

2 Williams claims that the Commonwealth failed to disclose

this report, which contained valuable Brady information, to

Gefense counsel. See infra Claim IV(A) (2).

a A 9S

courts in support of his state habeas petition.”

Although section 2254(e) (2) does not apply when a petitioner

is denied the opportunity to develop a reco:u in the state

proceeding, Williams fails to explain to the Court how the report

came to the attention of federal habeas counsel and why it could

not have been previously discovered through the exercise of due

diligence on the part of state habeas counsel. Williams has

apparently been afforded the same type of assistance at both

state and federal habeas--namely, court-appointed attorneys. The

Court can therefore discern no reason and has been offered no

explanation why state habeas counsel failed to discover the

report and present it in state habeas proceedings. In light of

this, Williams has failed to bear his burden of demonstrating

that defense counsel were ineffective in failing to secure the

appointment of an investigator, much less that there is a

® The applicable section of the statute provides that “[i]f

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" and

then provides limited exceptions. 28 U.S.C. § 2254(e) (2).

Williams argues, however, that he did not “fail” to develop a

factual basis in state proceedings; he was denied the tools

necessary to do so by the Virginia Supreme Court. Section

2254 (e) (2) does not apply when a petitioner attempts to develop a

record in the state proceeding, but is denied that opportunity by

the state court. See Cardwell _v. Netherland, 971 F. Supp. 997

(E.D. Va. 1997).

1344

A936

tens

reasonable probability that the outcome of his trial would have

been different.

Claim V(A) (7)

During the guilt phase, the Commonwealth presented the

testimony of Mrs. Keller’s mother and Mr. Keller’s brother as a

means of identifying the personal property taken from the

Kellers’ home. Prior to their testimony, defense counsel were

apparently prepared to stipulate to the evidence. Williams

argues that by failing to promptly do so, defense counsel allowed

“unnecessarily emotional and inflammatory testimony” to be

presented to the jury, thereby prejudicing his case. The Court

finds, however, that Williams has failed to show that the

stipulation, if accepted, would probably have changed the outcome

of the trial. Accordingly, pursuant to Strickland, this claim

must be dismissed.

Claims V(A! (8) & V(A) (9)

During the prosecution’s arguments, defense counsel did not

offer a single objection despite numerous instances in which the

prosecutor allegedly misstated the evidence, interjected opinion,

mischaracterized testimony, argued facts not in evidence, and

made other improper arguments. Williams claims that he was, in

effect, without counsel during opening and closing arguments;

1345 A97

thus, so he contends, defense counsel’s performance was

unconstitutionally deficient and he was prejudiced as a result.

Defense counsel state in their affidavit, however, that

[a])s a matter of general strategy, we believe

it is better not to object to a prosecutor's

remarks or arguments to the jury unless absolutely

necessary. Such objections run the risk of

emphasizing adverse matters before the jury or

giving the jury the impression the defense is

trying to cover something up. In Michael Williams’

case, we refrained from making such objections

because, in our opinion, any such objections

would have been overruled by the trial judge and

the objections could have adversely affected our

client in the jury‘s eyes.

Resp’t Federal Ex. D at 4. Such a strategy appears reasonable

and accordingly, did not render Williams’ defense counsel

constitutionally ineffective. Moreover, Williams has failed to

show a reasonable probability that the outcome of either phase of

the proceedings would have been different if defense counsel had

made any or all of Williams’ suggested objections.

Claim V(B) (1)

At the outset of the penalty phase, the Commonwealth called

the mother of Mrs. Keller as a witness. Williams argues that her

appearance was totally irrelevant and indeed, was “designed to

elicit the juror’s sympathy and arouse their anger against

Williams.” Pet’r Opp’n at S56. As a consequence, Williams claims

1346

A98

ee ‘

that defense counsel should have objected to her testimony and

their failure to do so constitutes ineffective assistance of

counsel.

On direct appeal, the Virginia Supreme Court assessed the

testimony of Mrs. Keller’s mother as follows: “(she) testified

only as to her daughter’s age and marriage to Mr. Keller and

identified a photograph of the Kellers [as they appeared before

their deaths]. The record does not disclose that [she] displayed

any particular emotion during the short period of her testimony.”

Williams, 248 Va. at 548. Our review of the record concurs with

this assessment.

The Court also agrees, however, with Williams’ argument that

the prosecutor could have argued the statutory aggravators based

on previously admitted crime scene photographs which sufficiently

depicted the vileness of the crime. Williams has not proferred

any evidence, however, to establish that defense counsel’s

decision not to object on relevancy grounds was not a tactical

Gecision. Moreover, Williams has failed to suggest any concrete

evidence of prejudice as a result of his counsel’‘s alleged

deficient conduct. Accordingly, this claim must be dismissed.

Claim V(b) (2)

Williams argues that his defense counsel were ineffective in

1347

Ag99

(ts

failing to timely object to photographs of the Prince Edward

County victims and to properly argue the objection. The issue of

the photographs arose during the Commonwealth's examination of

the medical examiner, Dr. William Massello. Dr. Massello hac

been called to identify the four victims of the Prince Edward

County shootings and to establish their cause of death. In

addition to the autopsy reports, the Commonwealth sought to

introduce photographs of each victim's head** in order to

establish “vileness.” Defense counsel immediately objected and

engaged in heated argument in the presence of the jury. The

trial court finally admitted the photographs, but only after the

Commonwealth changed the grounds for which they were cffered

--to establish “future dangerousness” and to corroborate the

testimony of Williams’ brother about the shootings. On direct

appeal, the Virginia Supreme Court ruled that the photographs

were properly admitted and rejected Williams’ argument that the

photographs need not be admitted because the same facts were

contained in the autopsy reports.

Williams now argues that defense counsel were ineffective in

* The photographs graphically demonstrated that each victim

had been shot in the head and that parts of each head had been

subsequently burned. Williams, 248 Va. at 547.

1348

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hue

failing to “foresee the inflammatory and prejudicial effect the

Prince Edward photographs would have on the jurors and fail [ing]

to object to their admission in advance of the medical examiner's

testimony.” Pet’r Opp’n at 57. The unrebutted affidavit

submitted by defense counsel refuts this contention. See Resp’t

Federal Ex. D at 6. Moreover, as Respondent correctly notes,

defense counsel did raise their objection to the photographs in a

manner that was timely and specific enough to have the issue

decided on appeal.

Even assuming that defense counsel's performance was

deficient in failing to preempt the issue before it reached the

jury, Williams has not shown that there is a reasonable

probability that the outcome of the penalty phase would have been

different if counsel had succeeded in keeping the photographs

out--the autopsy reports which explicitly described the wounds of

the Prince Edware County victims were already before the jury.

Nor has Williams demonstrated that raising the objection outside

the presence of the jury would probably have changed the ultimate

sentence. For these reasons, this claim must be dismissed under

+i 5)

Claim V(8) (3)

In addition to failing to prevent the admission of the

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Prince Edward County photographs, Williams claims his defense

counsel were ineffective on the grounds that they dic not attempt

to develop defense evidence and mitigating information through

the medical examiner’s testimony. Williams’ brother, John, hac

testified that he, Williams, and the Prince Edward County victims

had been drinking heavily on the night of the shootings.

Williams now argues that defense counsel should have attempted to

posit an explanation for the shootings by cross-examining Dr.

Massello--specifically, that a drunken Williams had acted out of

provocation or self-defense when threatened by an equally

intoxicated man with a gun. Respondent argues, however, that

defense counsel made “a deliberate, tactical decision not to

cross-examine Dr. Massello” which should not be second-guessed on

habeas review. Resp’t Mot. to Dismiss at 50-51.

The affidavit submitted by defense counsel in the state

habeas proceeding confirms Respondent’s contention:

We were thoroughly prepared for Dr. Massello’s

testimony at the penalty stage regarding the

autopsies of the four Prince Edward County

victims. We had reviewed all of the autopsy

reports and Dr. Massello’s testimony was

consistent with those reports. We decided,

as a matter of trial strategy, not to

cross-examine Dr. Massello. Our strategy

was to get Dr. Massello off the witness

stand as quickly as possible. We did not

want to ask him any questions which might

result either in his using the photographs

of the victims to illustrate his response

or in the prosecution’s using the photographs

again on redirect. The photographs were very

damaging to the defense and we simply did not

want to run the risk of making a bad situation

worse.

Resp’t Federal Ex. D at 5-6.

Furthermore, there is no evidence that Williams was

prejudiced by defense counsel’s failure to cross-examine Dr.

Massello and elicit information on levels of intoxication and

time of death. In fact, a review of the trial transcript shows

that Williams’ proposed justification for shooting the Prince

Edward County victims would not have been borne out by the

evidence. Dr. Massello testified that Villalobos, the victim who

allegedly provoked Williams, was shot “to the back of the right

side of the head. And as opposed to being a round hole,

that you would expect a bullet to make, this is a very ragged,

sort of star-shaped appearing wound, and this is from the effects

of rhe muzzle of the oun being held in contact with the head at

the time of discharge ....” Tr. 1-6-94 at 109, 112-13

(emphasis added). The other victims were also shot at fairly

close range. See, e.g., Tr. 1-6-94 at 128. In the face of

evidence which clearly contradicts Williams’ self-defense

argument, the Court finds that Williams was not prejudiced by

————

defense counsel’s decision to not call further attention to Dr.

Massello’s damaging testimony.

Claim v(B) (4)

Williams also claims ineffective assistance of counsel with

respect to defense counsel’s failure to cross-examine his

brother, John. Although John testified that he had passed out

prior to the shootings and thus did not know anything about the

shootings other than what his brother had confessed to him,

Williams argues that defense counsel could have elicited

favorable evidence relating to the issue of self-defense.

Furthermore, Williams claims that defense counsel could and

should have humanized him by questioning John as to Williams’

concern for John on the night of the shooting, Williams’ remorse

over the shooting of one of the victims, and John’s own

willingness to help his brother.

Again, the affidavit demonstrates that defense counsel made

a deliberate, tactical decision not to cross-examine John.

{H]) is testimony regarding what the defendant

had told him about the Prince Edward

homicides was a more favorable version of

the event than what the defendant had

told us. Johnny was a reluctant prosecution

witness and it was our impression that the

prosecution had not succeeded on direct

examination in eliciting from him all the

information it had hoped to elicit.

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(W)e did not want to risk inadvertently

eliciting such adverse information on cross-

examination or giving the prosecution another

chance to do so on redirect.

Resp’t Federal Ex. D at 6. Absent evidence to the contrary, the

Court does not find that defense counsel acted unreasonably.

Under Strickland, this claim must be dismissed.

Claim V(b) (5)

Williams claims that defense counsel were ineffective for

failing to object when the prosecutor cross-examined Williams’

mother and maternal grandfather about the events leading to

Williams’ arrest. On direct examination, defense counsel had

questioned Williams’ mother about family history and Williams’

learning disabilities, drug abuse, and other problems; Williams’

grandfather was called to testify about Williams’ strong work

ethic and positive relationships with family members. On cross~-

examination, however, the prosecutor focused exclusively on

Williams’ arrest and the role of Williams’ mother in persuading

her son to surrender--topics clearly beyond the scope of direct

examination. Defense counsel then failed to conduct any redirect

examination to rehabilitate these mitigation witnesses.

In their affidavit, defense counsel state that it would have

been futile to object: “such an objection certainly would have

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been overruled on the grounds that the Commonwealth was entitilec

to cross-examine the witnesses on the issue of bi

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