# Appendix — Williams v. Taylor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0397%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2000 - **Citation:** 529 U.S. 420 ## Text In The Supreme Court Of The Unites States OCTOBER TERM, 1999 li MICHAEL WAYNE WILLIAMS, Petitioner, EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY v. 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 Al Publisher’s Note: Page(s) AZ missing in original document vo? wv ce @ oo oo ¢ i i i i i i rr Se Ss eC er er er ee UF 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. A3 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. A. 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. A4 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.” B. 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. A. 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, A6 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. A. 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 A@ 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] B. 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. V. For the foregoing reasons, the judgment of the district court is AFFIRMED. A8 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 l 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. I. 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 « 2 ty Ps Ow 3 : f ; J 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 2 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) 3 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. t 3 b s % : ‘ e z ; é & 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 wo @ 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 oat . ve pe U iy OEP arte eee ee ESET IR Oe ee a> eo RTE ee peas | 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 6 PEP EO et ere OES LE NE PRCT Ns res 8 cee 1. . 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 2. 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 © ODL FRE ITE Ie 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 A. Guilt Phase i. 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 i. 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 10 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 1. 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 1 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) 12 1283 A3S bes VII. Additional Constitutional Errors A. 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 13 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 14 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 15 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 16 ad 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 § pa , 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 S 17 1288 A40 “az “and finds that Virginia's system for compensation and payment of expenses still fails to meet the standards established by § 107.’ 5 } Pt 4 ¢ id > La 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)). 18 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 19 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); 20 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 21 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 23 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. 24 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. © Ses infra at 64. " 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. 25 1296 A4s ed 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 26 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 27 1298 ASO. us 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 28 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 29 1300 A Se 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 30 1301 A S3 sais aS iaaales Mek at arena OTL Ry EE ig a Seat ok gS 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 3] 1302 A 34 1 oe 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 © See Dobbs vy. Zant, 113 S. Ct. 835, 836 (1993). 32 Tee ROS GE EE ET ys ee 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 63 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 64 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. 65 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 66 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. 67 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 68 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 69 134n A92 Woomer v. Aiken, 856 F.2d 677, 684 (4th Cir. 1988), cert. And contrary to Williams’ assertion, defense counsel did argue denied, 469 U.S. 1091 (1989). 85 1355 1356 A 107 | A 108 deficient performance. On the contrary, the trial transcript clearly shows that defense counsel did respond, often times vigorously, to the prosecutor’s attempts to limit Dr. Cornell's testimony. Defense counsel also challenged the trial court when it sought to advance the mitigation presentation. In light of this, the Court finds that Williams has failed to overcome the strong presumption that defense counsel's performance in presenting Dr. Cornell’s testimony fell within the wide range of professionally competent performance. Moreover, Williams offers nothing more than mere speculaticn as to the prejudic-.a. effect of defense counsel’s conduct on his case. Under Strickland, more is required; this claim therefore fails. Claim vV(8) (8) Williams claims ineffective assistance of counsel based on defense counsel’s failure to request an evaluation of Williams by a neuropsychologist to determine whether he suffered from brain Gysfunction. In the state habeas proceeding, Williams submitted the affidavit of a neuropsychologist, Dr. Robert Hart, who, after reviewing the testimony and evidence presented at trial, con¢luded that there was an indication of possible brain Gysfunction which clearly required a thorough neuropsychological examination. Williams now contends that defense counsel’s 2 Ter Re me failure to pursue such an examination constitutes deficient performance and prejudiced his case. Defense counsel responds, however, that they thoroughly consulted with Dr. Cornell, their mitigation expert who was familiar with the field of neuropsychology, and specifically discussed the possibility of organic brain dysfunction. Specifically, defense counsel state in their affidavit that: Dr. Cornell never indicated to us that further testing or evaluation was necessary OF advisable. We specifically discussed with Dr. Cornell whether Michael Williams had organic brain damage because we were aware, and Dr. Cornell was aware, that at the time of Michael’s birth there had been complications which reportedly had resulted in Michael not breathing for a period of time. Dr. Cornell, however, informed us that he had performed his own tests, including several standard neuropsychological tests, and satisfied himself that no further testing was indicated. If Dr. Cornell had informed us that further evaluation was necessary or advisable, we would have requested the trial judge to authorize such an evaluation. Resp’t Federal Ex. D at 7-8. Regardless of whether Williams believes that Dr. Cornell's neuropsychological assessment was inadequate, Williams has failec to prove that defense counsel’s conduct was so objectively unreasonable as to constitute deficient performance. See, ¢€.¢., 87 hart Gere! Pruett v. Thompson, 996 F.2d 1560, 1573-74 (4th Cir.), cere. denied, 510 U.S. 984 (1993). Defense counsel asked other members of the criminal defense bar to recommend a mitigation expert who would begin an evaluation on Williams’ side; provided Dr. Cornell with all of the relevant information concerning the crimes and Williams’ life history; and consulted with Dr. Cornell on numerous occasions prior to trial. Based on the foregoing, the Court finds that Williams received effective assistance of counsel within the meaning of Strickland. Claim V(S) (9) During the penalty phase, defense counsel elected not to put Williams on the stand. Williams now claims that had he testified, defense counsel could have elicited beneficial mitigation and rebuttal evidence which would have provided the jury with a reason for imposing a life sentence. Williams asserts that this failure to present his testimony demonstrates the absence of any defense strategy because “there was simply no advantage to a decision to withhold his testimony at the sentencing phase given the magnitude of the crimes involved.” Pet’r Opp’n at 65. Defense counsel's affidavit belies this contention. The record reveals that defense counsel discussed the issue of 1359 Aii1 (+e 4 testifying with Williams several times before trial, mid-trial, and the night before he testified at the guilt stage. Counse. repeatedly advised Williams of all the benefits and risks involved in testifying, and informed Williams that the ultimate decision was his to make. Only after viewing Williams’ performance on the witness stand at the guilt stage--in particular, his “very cold” demeanor--did defense counsel decide not to call him during the penalty phase and risk subjecting him to damaging cross-examination about the Prince Edward County shootings. See Resp’t Federal Ex. Dat 9. Under these circumstances, the Court is hard-pressed to find how defense counsel's performance could be deemed ineffective. Claim v(B) (10) At the conclusion of the penalty phase, the trial court failed to instruct the jury as to the nature and use of the mitigation evidence presented by Williams. Williams now claims that defense counsel’s failure to object to the allegedly deficient jury instructions and to request a corrective mitigation instruction deprived him of effective assistance of counsel. As discussed previously with respect to Claim VII(A), however, the Fourth Circuit has routinely held that penalty stage instructions beyond the standard Virginia sentencing instruction 89 1360x112 are not constitutionally required, particularly on the issue of mitigation. S$e2. €.¢.., Buchanan v. Ancelone, 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 v. Murray, 947 F.2d 1106, 1119-20 (4th Cir. 1991), cert. denied, $03 U.S. 973 (1992); Clozza v. Murray, 913 F.2d 1092, 1005 (4th Cir. 1990), cert. denied, 499 U.S. 913 (1991). Thus, defense counsel’s conduct cannot be said to be deficient in this regard. Claim v(B) (11) For the reasons stated above with respect to Claims V(A) (8) and V(A) (9), this claim is likewise dismissed under Stricklans. Claim v(B) (32) ' Williams claims that defense counsel presented ineffective argument at the penalty phase and failed to provide the jury with persuasive reasons to impose a sentence of life rather than death. Contrary to Respondent’s assertion, Williams does specify those mitigating factors that defense counsel did not argue or argued ineffectively as well as those arguments that harmed Williams’ case. See Pet. at 145-46. After reviewing the trial transcript, however, the Court does not find that defense OT IE Sey mk counsel’‘s argument was so lacking as to fall below the wide range of professionally competent performance. In closing argument, counsel aid discuss Williams’ history of drug and alcohol abuse; traumatic events in his life, including sexual abuse and an unstable home; ADHD and its effect on Williams; his loving and close relationship with his family; and his intoxication on the night of the Keller murders and Prince Edward County shootings. Counsel also stressed that the jury had the option of imposing a life sentence regardless if they found either of the statutory aggravating factors and that there was enough hope for Williams that the jury should impose a life sentence. See Tr. 1-7-94 at 208-212, 215-24. Absent post hoc rationalization, the Court cannot say that defense counsel's conduct was objectively unreasonable under Strickland. Claim V(b) (15) As a final matter, Williams claims that defense counsel’s errors at the sentencing phase individually and collectively prejudiced his case. Aggregating alleged errors that themselves do not constitute ineffective assistance is not sufficient to meet the stringent standard under Stricklané. See Thomas -Bey v. Smith, 869 F. Supp. 1214, 1230-312 (1994), aff'd, 67 F.3d 296 (4th Cir. 1995). Accordingly, this claim must be dismissed. 91 1362 A 114 Claim vic) (2) Williams claims that defense counsel, who were also appellate counsel, rendered ineffective assistance by failing to properly appeal the denial of proposed Instructions #19 and #20 to the Virginia Supreme Court. See infra Claim V(A) (1). Specifically, because appellate counsel merely “‘incorporate [d) by reference’ the argument’ he made in the trial court,” the Virginia Supreme Court refused to consider the Claim on appeal. Williams, 248 Va. at 545. Williams argues that this omission of “an obviously winning issue” constitutes ineffective assistance of counsel on appeal. Pet. at 148. As discussed previously with respect to Claim V(A) (1), however, assuming arguendo that counsel’s performance was Geficient in this regard, Williams must still demonstrate prejudice. Although the Court agrees that Williams is not required to demonstrate that the omitted claim would have resulted in a reversal on appeal, Williams must demonstrate that there is a reasonable probability that the outcome of the appeal would have been different. Given the Virginia Supreme Court’s * Respondent concedes that Claim V(C) (1) was raised in Williams’ state habeas petition and dismissed by the Virginia Supreme Court on the grounds that it was without merit. See Resp’t Reply at 26. 92 1363 A 115 ges determination that the trial court’s Instruction #18 was a correct statement of Virginia law, counsel’s failure to properly appeal the issue would not have changed the outcome. Thus, the Court finds that Williams was not denied effective assistance of appellate counsel. Claim vic) (2)?” Williams next argues that counsel failed to properly preserve objections or properly frame its appeal of the trial court’s erroneous restrictions of voir dire. Rather than specifically appeal the trial court’s restrictions on questions concerning juror attitudes about the death penalty, counsel appealed the trial court’s general denial of expanded voir dire. Williams argues that the failure to properly frame the issue under applicable U.S. Supreme Court precedent constituted ineffective assistance of counsel. Assuming arcuendo that counsel was deficient in this regard, Williams has not demonstrated that there is a reasonable probability that the direct appeal decision would have come out any differently had counsel appealed the issue with more specificity. Accordingly, 7” Respondent concedes that Claim V(C) (2) was raised in Williams’ state habeas petition and dismissed by the Virginia Supreme Court on the grounds that it was without merit. See Resp’‘t Reply at 26. this claim must be dismissed. Claim Vic) (3) Williams’ final claim is that appellate counsel failed to properly appeal the trial court’s refusal to strike Juror Davis. At trial, defense counsel objected to Juror Davis on the ground that he strongly favored the death penalty. On direct appeal, however, appellate counsel. proposed a different argument--namely, that the trial court applied the wrong disqualification Standards. Necieg that the latter objection was not made in the trial court, the Virginia Supreme Court dismissed the claim pursuant to its Rule 5:25. See Williams, 248 Va. at 5460. Whether appellate counsel should have narrowly tailored the appeal regarding juror exclusion to the treatment of each : incividual juror, the Court is not persuaded that counsel’s failure to do so does falls outside the wide range of objectively reasonable performance. Given that Williams has alleged that the trial court treated Jurors Trent, Holman, Bernard, and Davis Gifferently, it is not unreasonable for appellate counsel to have framed the appeal in such terms as would encompass the trial court’s allegedly erroneous treatment of all these jurors. The Court also notes that the state trial judge found Juror Davis to be impartial; this Court is required to give deference to that finding of fact. See § 2254(e) (1). In the absence of clear and convincing evidence to rebut the trial court’s finding that Juror Davis could impartially consider imposing a life or death sentence, the Court finds that Williams has failed to establish prejudice resulting from appellate counsel’s failure to litigate this specific claim on appeal. Under Szsrickland, this claim must be dismissed. VII. CONCLUSION Respondent’s Motion to Dismiss the petition will be GRANTED IN PART AND DENIED IN PART. An Evidentiary Hearing will be GRANTED with respect to Claims I(A), IV(A) (1), and IV(A) (5). HOH Wt. “UNITED STATES DISTRICT AURGE DATE: April 13, 1998 95 1366 A 118 POR THE EASTERN DISTRICT OF VI IN THE UNITED STATES cer OF Viffana RICHMOND DIVISION MICHAEL WAYNE WILLIAMS, Petitioner, U.S. Di RICHMOND VA Civil Action No. 3:96CV529 Vv. J. D. NETHERLAND, Warden, Mecklenburg Correctional Center, Respondent. ORDER Petitioner, through counsel, appeared before the Court alter notice to the Respondent for purposes of demonstrating a need Sor confidentiality by reason of having requested services pursuant to 21 U.S.C. § 848(q) (9), and the Court directed an adversarial hearing wherein the Court expressed the view that it would be necessary for Petitioner to list his alleged claims to the end that the Court be advised by Respondent of any which allegedly have been Gefaultec =o which action Petitioner obiected, but did, however, at the Court’s request, file a list of his intended claims, which the Court has refrained from looking at and sealed until such time as the Unitec States Court of Appeals for the Fourth Circuit renders a decision as to whether said listed claims may be shown to Respondent: as this Court deems necessary. Let the Clerk send copies of this Order to all counsel of record. 4 CZT ea - — | ¢ 1995 FOR THE EASTERN DISTRICT oF a . MICHAEL WAYNE WILLIAMS, ) aad ) Petitioner, ) ) Civil Action v. ) No. 3:96cv529 ) J.D. NETHERLAND, Warden, ) ' ) Respondent. ) ) ) ORDER the Court is in receipt of the respondent’s letter requesting an adversarial hearing on petitioner’s ex parte requests U.S.C. § 848(q)(9). under 21 Deeming it just and proper so to do, it is hereby ADJUDGED and ORDERED, that the Court’s earlier Orders granting petitioner permission to proceed ex parte and under seal are hereby STAYED until the further Order of this Court. Let the Clerk send copies of this Order to counsel of record. Sept. 18, 1996 DATE 049 A1ie1 a we.) . IN THE UNITED STATES DISTRICT COURT cD = 5 jog | FOR THE EASTERN DISTRICT OF VIRGINIA | hid ee Richmond Division CER Te PSI COURT } l MICHAEL WAYNE WILLIAMS, Petitioner, Vv. \ Civil Action No. 3:96CV529 UNDER SEAL J. D. NETHERLAND, WARDEN MECKLENBURG CORRECTION CENTER, Respondent. ORDER This matter is before the Court on Petitioner’s Motion for Leave to Proceed Ex Parte and Under Seal. Good cause and the need for confidentiality having been shown, it is hereby ORDERED thet Petitioner may proceed ex parte for purposes of requesting the assistance of experts under 21 U.S.C. §§ 848(q)(9): and it is further ORDERED that all MOtIONS, Supporting memoranda, and court orders relating to Petitioner's request for the assistance of experts shall be placed under Lt lie 2 NITED STATES DISTRICT JUDGE It is so ORDERED. September 2, 1996 945A122 VIRGINIA: lly of Tchmand on Monday He 18th . ba os is therefore ordered that the said petition be Gismissed and the rule be discharged. Chief Justice Carrico took no part in the consideration of this case. A Copy, Teste: David B. Beach, Clerk PY Ce, A. Mees Deputy Clerk VIRGINIA: lily of Rukmond an Friday 4er3th “ay 4 january, 1995. Michael Wayne Williams, Appellant, against Record No. 940445 Circuit Court No. F-143 Commonwealth of Virginia, Appellee. Upon a Petition for Rehearing On consideration of the petition of the appellant to set aside the judgment rendered herein on the 4th day of November, 1994 and grant a rehearing thereof, the prayer of the said petition is denied. Chief Justice Carrico took no part in the consideration or Gecision in this case. A Copy, Teste: 373 A125 vas “familiar” with them. When e prosecutor, “Al! right, sir, in 1, had you wanted to sell those ts for their fair market value on y were stolen, what would be—" nsel interrupted and objected. n was overruled, and the prose. ed with, “What would you have ose television sets, each, on the ret?” The witness answered, “] hundred and fifty dollars.” tated that he had never sold a t nor had he “looked at the clas- or the sale of televisions.” He it he did not “personally” buy ment” for the company but that ders for equipment and was fa- equipment value “to a degree” amination of catalogs. arther stated that in his “normal a citizen,” he had purchased tele- nd that he owned a set that was a 13-inch model. The witness it when he “was looking to buy a t,” he “priced” them and that he «perience as a manager for the nd his “personal experience” into n when relating the stolen items ally, when Neiman was asked U iy about value “was a guess,” he ‘That's the value I would place on wney General argues that the ypeals correctly ruled there was idence to support the jury's find- » stolen property had a value of more. We disagree. onerally, the opinion testimony 0 ff personal property is competent ble on the question of the value of vty, regardless of the owners of property values. Haynes * Va. 746, 750, 91 S.E.2d 433. 436 1956). But Neiman was not the owner of the televisions, only an emplovee of the cor- porauon that owned them. Ownership of property by a corporation does not automat- ally qualify a company employee to testify about the value of company property. Jones y. State, 408 So.2d 690, 691 (Fia.Dist.Ct.App. 1982) (employee of hotel who was night clerk on duty when television set stolen lacked requisite knowledge regarding the property and its value). [4] However, the general rule is that inion testimony of a nonexpert, who is not the owner of the personal property in ques- tion, is admissible upon the subject of prop- erty value, provided the witness possesses sufficient knowledge of the value of the prop- erty or has had ample opportunity for form- ing @ correct opinion as to value. Haynes, 197 Va. at 750, 91 S.E.2d at 436; Aerr v Clinchfield Coal Corp.. 169 Va. 149, 155-56, 192 S.E. 741, 743 (1937). Ser Venew v. Com- monwealth, 212 Va. 805, 806-07, 185 S.E.2d 80, 81-82 (1972); Hicks rv. Commonwealth, 157 Va. 939, 944, 161 S.E. 919, 920-21 (1932); Wadley v. Commonwealth. 98 Va. 803, 806~ 08, 35 S.E. 452, 453-54 (1900); Norfolk & Western Ry. Co. v. Reeves, 97 Va. 254, 288- 90, 33 S.E. 606, 607 (1899). See generally 3 Wigmore on Evidence § 716(2) (Chadbourn Rev. 1970). {5} Applying the genera! rule, we hold the evidence of value presented in this case was inadequate as a matter of law wo estab- lish that element of the cmnme bevond a rea- sonable doubt. Neiman demonstrated insuf- ficient knowledge of the value of the stolen items. Moreover, he lacked ample opportu- nity for forming an accurate opinion on value. In sum, his testimony upon fair market value of the television sets was wholly without foundation, thus resulting in a failure of the Commonwealth's proof. Employed by the cable television company as production manager for “just over a month,” Neiman described the items. stated their age, and said they were in “good work- ing order.” But he did not testify about the original cost or “the effect of age and wear and tear” on the value of the stolen equip- ment. Dunn v. Commonwealth. 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981) (original pur- A 126 WILLLAMS v. COM. Va. 365 Cite as 450 S.E.2d 365 94) chi .e of stolen item admissible in grand larceny prosecution, but due allowance for elements of depreciation necessary to estab- lish current value). Neiman, who did not personally buy equipment for his emplover. merely based his estimate of fair market value on “personal experience” as a consum- er and “experience as a manager for the company,” neither of which afforded him a basis for giving a competent opimon of value Accordingly, the order of the Court of Appeals will be reversed and the judgment of conviction will be vacated. The case will be remanded to the Court of Appeals with di- rection that it be remanded to the circuit court for a new trial upon a charge of petit larceny. Reversed and remanded Michael Wayne WILLIAMS ¥. COMMONWEALTH of Virginia. Record No. 940445. Supreme Court of Virginia Nov. 4, 1994. Defendant was convicted by the Circuit Court of Cumberland County. John FR. Snod- dy, Jr.. J., of two capital murders. rape. burglary, and arson, and he appealed his capital murder convictions. The Supreme Court, Whiting, J., held that: (1) defendant had no constitutional mght to bill of particu- lars on vileness predicate for death penalty based on indictments that were sufficient to give him notice of nature and character of offenses charged: (2) trial court did not abuse its discretion in denving defendant's motion for change of venue: (3) tra! court did not commit manifest error in excusing prospective juror who testified that she ——438(6, 7) Trial court did not abuse its discretion in admitting photographs of four victims in unadjudicated crime to establish defendant's future dangerousness and to corroborate tes- tumony of defendant's brother on defendant's confession that he shot and killed the four men; fact that autopsy reports reflected same facts as photographs did not make pho- tographs inadmussibie. 450 SOUTH EASTERN A129 RY ‘RTER, 2¢d SERIES burn the Keller house. s (1) denied that he raped laimed that Cruse fired all ots into the Kellers’ bodies, ed other details of Cruse’s vho had suggested some of ring and after the murders. meier, a serologist, tested recovered from Mrs. Kel- part of the Physical Evi- Kit prepared by Dr. Debo- he autopsy on Mrs. Keller. pared that sample with the “use, Williams, and Mr. Kel- - testified that her compar- ly Williams could have con- > type of seminal fluid found Dr. George C. Li, @ DNA formed a DNA test on the m the sample. testified that vere consistent with a conclu- and Williams jointly contnib- al fluid. PREVIOUSLY DECIDED ss a number of issues that We decided adversely to his com ums offers no persuasive re* our previous conclusions. ne. Hence, we will adhere “ sjections of those conventions seuss them beyond citing TP” ses expressly rejecting these “he first group of contenuon® ms's claims of the unconsuw WILLIAMS v. COM. Va. 37) Cite as 450 S.E.2d 365 (Va *~”*) ity of the capital murder and death penalty statutes for the following reasons: A The statutes do not give meaningful guidance to a jury because they do not re- quire the jury to find that aggravating cir- cumstances outweigh miugaung ones before fixing the death penalty. Rejected in Breard » Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75 (1994), and Mickens v. Common- wealth, 247 Va. 395, 403, 442 S.E.2d 675, 654 (1994). B. As written and administered, the stat- utes fail to adequately inform the jury that a death sentence may be imposed only upon a finding beyond a reasonable doubt that ag- gravauing circumstances outweigh miugatng ones. Rejected in Watkins t. Common- wealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied 475 U.S. 1099, 106 S.Ct. 1508, 89 L.Ed.2d 903 (1986) C. The statutes fail to provide the sen- tencer with sufficient guidance as to aggrava- ting factors to assure that the death penalty is not imposed in an arbitrary and capricious manner. Rejected in Mickens, 247 Va. at 402-403, 442 S.E.2d at 683-84. D. The “future dangerousness” aggrava- ting factor in the statutes is inherently mis- leading since it asks jurors to find a probabil- ity beyond a reasonable doubt. Rejected in Mickens, 247 Va. at 402-403, 442 S.E2d at 684; M. Smith vr Commonwealth, 219 Va. 455, 477-78, 248 S.E2d 135, 14849 (1978), cert. denied. 441 U.S. 967, 99 S.Ct. 2419, 69 L.Ed2d 1074 (1979). E. That part of the statute, Code § 19.2- 264.4(C), which allows the sentencer to find the “future dangerousness” predicate based 01. unadjudicated cmmunal conduct, violates the Eighth and Fourteenth Amendments Additionally, if evidence of such conduct is admissible, the jury should have been in- structed that it could only be considered if established beyond a reasonable doubt. Both contentions are rejected in Breard, 248 Va. at 74-75, 445 S.E.2d at 675, and in Sateh- er v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), cert denied — US —, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993) F. The “future dangerousness” aggrava- ting factor in the statutes is inherently unre- A132 lable insufficient to guide jury discre- tion. ...yected in Satcher. 24: Va at 2%. 2) S.E.26 at 826, and M. Smith 219 Va. at 477-78, 248 S.E.2d at 148-49 G. The statutes as administered are un- constitutional because the infrequenc) of the imposition of the death penalty indicates that it is imposed arbitrarily and disproporuon- ately upon black defendants. and the death penalty is repugnant to evolving standards of decency. Rejected in Satcher, 2441 Va at 228, 421 S.E.2d at 826. H. As applied, the statutes are unconsti- tutional because they deny “meaningful ap- pellate review and there is arbitrary admunis- tration of the state created mght to propor- tionality and passion/prejudice review.” Re- jected in Mickens, 24” Va. at 405, 442 S.E.2d at 685. 1. Additionally, Wiliams argues in con- clusional fashion that the statutes violate the Eighth Amendment prohibition against cruel and unusual punishment, the Sixth Amend- ment right to a fair trial, and the Fourteenth Amendment prohibition against depnvation of a defendant's life without due process. We have rejected each of these claims in the following cases: Beaver v. Commonwealth, 232 Va. 521, 527, 352 S.E.2d 342, 345-46, cert denied. 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987) (claim of crue! and unusu- al punishment); Boggs v. Commonwealth, 229 Va. 501, 514, 331 S.E.2d 407, 417 (1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed2d 347 (1986) (claim of denial of Sixth Amendment right to fair tral). and Stamper v Commonwealth, 220 Va. 260. 267, 257 S.E.2d 808, 814 (1979), cert. denied. 445 US 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980) (claim of lack of due process) Williams's second group of contentions that have been previously rejected by this Court involves the following A. The court erred in denying his mo- tions for individual and sequestered vorr dire examination of prospective jurors and for additional peremptory juror challenges. Re- jected in Breard, 248 Va. at 75, 445 S.E.2d at 675, and Swann v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200 (1994) vie se ee Oe eee eee eee Ore 8 ORR et ee ee eee -“~R, The court erred in failing to provide wan’ vile, horrible or inhuman. i» thet 1 wer Rule 3A:11. Rejected in Spencer v. Commonwealth, 238 Va. 295, 303-304, 384 S.E2d 785, 791-92 (1989), cert. denied 493 U.S. 1098, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). Ill. ISSUES PROCEDURALLY * DEFAULTED {1,2) We will not consider hay yt present objections to the exclusion of pro- spective jurors Thomas J. Langhorne, Bob- bie Holman, and Mary D. Trent because Williams did not object to their exclusion at trial Rule 5:25. Nor will we consider Williams's present objections to the court's grant and refusal of certain penalty phase indicate that Williams objected to these ac- tions by the court. /d IV. WAIVER OF CERTAIN CONTENTIONS Williams did not brief, and has therefore waived, assignments of error 10 and 24. Rule 5:27(e). Also, in his brief, Williams attempts to “incorporate by reference” a number of argu- ments he made in the tria! court for consider- ation on appeal. We will not consider these arguments since they must be made in the appellate briefs. See Mickens, 247 Va. at 401 n. 4, 442 S.E.2d at 683 n. 4, and Jenkins v. Commonwealth, 244 Va. 445, 460-61, 423 S.E.2d 360, 370 (1992), cert. denied. — US. ——, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993) (arguments made in trial court cannot be considered on appeal merely by reference thereto in appellate brief). V. PRETRIAL MOTIONS Motion for Bill of Particulars Williams filed a motion for a bil’ of particu- lars seeking, among other things, to require the Commonwealth to “identify every nar- rowing construction of (the “vileness”) factor on which it intends to offer evidence.” The death penalty may be imposed if the defen- dant’s “conduct in committing the offense {punishable by death) was outrageously or A 133 mVO, grture, depravity of mind or aggro. vated battery to the victim” Code § 19.2- 264.4(C) (emphasis added). The necessary narrowing construcuons are contained in the emphasized language of Code § 19.2- 264.4(C). See M. Smith, 219 Va. at 475. 248 S.E.2d at 149 (“depravity of mind” and “ag- gravated battery” construed). [3] However, Williams contends that due process requires his pretria) notification of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0397%3A03. Public record. Not legal advice.