Appendix — Turner v. Jabe

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

WILLIE LLOYD TURNER,

- Petitioner,

JOHN JABE, Warden,

Greenville Correctional Center,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

HOWARD W. GOLDSTEIN

(Counsel of Record)

MIC!(AEL F.. COLOSI

FRIED, FRANK, HARRIS, SHRIVER

& JACOBSON

(A Partnership Including

Professional Corporations)

One New York Plaza

New York, New York 10004-1980

Co-Counsel: (212) 820-8000

WALTER J. WALVICK Counsel for Petitioner

JAMES VANR. SPRINGER Willie Lloyd Turner

ADAM PROUJANSKY Ww. BRADFORD REYNOLDS

DICKSTEIN, SHAPIRO & MORIN, COLLIER, SHANNON, RILL &

L.L.P. ScoTtT

2101 L Street, N.W. 3050 K Street, N.W., Suite 400

Washington, D.C. 20037-1526 Washington, D.C. 20007

(202) 785-9700 (202) 342-8400

DANIEL A. REZNECK ARTHUR F. MATHEWS

KATHLEEN A. BEHAN THOMAS F. CONNELL

ARNOLD & PORTER WILMER, CUTLER & PICKERING

1200 New Hampshire Ave.,N.W. 2445 M Street, N.W.

Washington, D.C. 20036-6885 Washington, D.C. 20037-1420

(202) 872-6700 (202) 663-6500

(Additional Counsel Listed on Inside Cover)

WILSON - Epes Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

ALEXANDER H. SLAUGHTER

J. WILLIAM BOLAND

MCGUIRE, WooDs, BATTLE &

BOOTHE

One James Center

901 East Cary Street

Richmond, VA 23219-4030

(804) 775-1000

CARL S. NADLER

DONALD B. VERRILLI, JR.

JENNER & BLOCK

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Twelfth Floor

Washington, D.C. 20005

(202) 639-6000

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

TABLE OF CONTENTS

Opinion of United States Court of

Appeals for the Fourth Circuit (Sept.

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Memorandum Opinion of United

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

No. 93-4001

WILLIE LLOYD TURNER,

Petitioner-A ppellant,

v. “

Davip A. WILLIAMS, Warden,

Powhatan Correctional Center,

Respondent-A ppellee.

Argued Dec. 8, 1993

Decided Sept. 15, 1994

Before HALL, LUTTIG, and MICHAEL, Circuit

Judges.

Affirmed by published opinion. Judge MICHAEL

wrote the opinion, in which Judge K.K. HALL joined.

Judge LUTTIG wrote a separate opinion, concurring in

the judgment.

OPINION

MICHAEL, Circuit Judge:

Petitioner Willie Lloyd Turner is a Virginia prisoner

who was convicted of murder and first sentenced to death

in 1979. In 1986, after state and federal collateral re-

view, the United States Supreme Court vacated his sen-

tence and remanded for resentencing. In 1987, a Virginia

jury again sentenced him to death. In 1992, after un-

successful direct and collateral review in the Virginia

courts, Turner petitioned the United States District Court

for the Eastern District of Virginia for relief pursuant to

28 U.S.C. § 2254. The district court denied that relief.

Turner v. Williams, 812 F.Supp. 1400 (E.D. Va.1993).

Turner appeals, arguing that the district court erred in

dismissing (1) his claims attacking the application of a

Statutory aggravating factor that permits imposition of

death upon a finding that the defendant’s conduct was

“outrageously or wantonly vile, horrible or inhuman,” and

(2) his several ineffective assistance of counsel claims.

For the reasons that follow, we affirm.

On the morning of July 12, 1978, Turner entered

Smith Jewelers, owned and operated by W. Jack Smith,

Jr. in City of Franklin, Virginia. Turner went in the

store with a sawed-off shotgun wrapped in a towel. With-

out saying a word, Turner displayed his shotgun and mo-

tioned to Smith. Smith immediately began stuffing money

into a jewelry bag. While he was filling the bag, Smith

inconspicuously activated the store’s silent alarm to the

police department. Meanwhile, Turner directed the sev-

eral customers and employees present to line up behind

the store counter, kicking a customer in the process.

Shortly after Smith triggered the alarm, a police officer,

Alan D. Bain, Jr. arrived at the store and told Smith that

his alarm was activated. Turner pointed his shotgun at

Officer Bain’s head and ordered him to remove his re-

volver from its holster and put it on the floor. Turner

then grabbed Officer Bain’s revolver off the floor, jabbed

his shotgun at the officer, and directed him to the back of

the store with the others.

Turner, now brandishing his shotgun in one hand and

Bain’s revolver in the other, fired the revolver into the

back wall of the store. He threatened to “start killing”

if another police officer showed up. At this point, without

any provocation, Turner pointed the revolver at Smith

and fired. The bullet struck Smith in the head. Smith

yelled, slumped over the counter and fell to the floor,

unconscious, gurgling, and bleeding trom the head. The

shot caused bleeding and bruising on Smith’s brain sur-

face, but was not fatal.

At this point, Officer Bain began talking to Turner.

He offered to take Turner out of the store if he would

agree not to shoot anyone else. While Bain talked to

Turner, two customers were able to escape from the store.

Turner then said, “I’m going to kill this nigger squealer,”

JA 314, referring to Smith, who was not African Amer-

ican. Turner then immediately reached over the counter

with the revolver and fired two close-range shots into the

left side of Smith’s chest. The shots caused Smith’s body

to jump. (One of the bullets penetrated his heart, food

and wind pipes before ultimately lodging in his spine; the

other bullet passed through his lung and out his back.

Medical testimony established that either of the two shots

to the chest would have been fatal.) Immediately after

these shots, Officer Bain was able to shove Turner and

grab his weapons. Bain then forced Turner to get down

on the floor and called for help.

On December 4, 1979, Turner was convicted for mur-

dering Smith, and on December 6, 1979, a jury in North-

ampton County recommended that he be sentenced to

death. On direct appeal, the Supreme Court of Virginia

affirmed the conviction and sentence, and the United

States Supreme Court denied certiorari. Turner v. Com-

monwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert.

denied sub nom. Turner v. Virginia, 451 U.S. 1011, 101

S.Ct. 2347, 68 L.Ed.2d 863 (1981). Turner then filed

a petition for a writ of habeas corpus in the circuit court

of Southampton County, Virginia. That petition was de-

nied, and the Supreme Court of Virginia affirmed. The

United States Supreme Court again denied his certiorari

petition. Turner v. Virginia, 462 U.S. 1112 (1983).

Turner next sought relief in the federal courts. On

July 27, 1983, he filed a petition for a writ of habeas

corpus in the United States District Court for the Eastern

District of Virginia. The petition was denied, and our

court affirmed. Turner v. Bass, 753 F.2d 342 (4th Cir.

1985). Turner then filed another certiorari petition in

the United States Supreme Court, which was granted.

On April 30, 1986, the Supreme Court vacated Turner’s

death sentence (but not his conviction) because the trial

court had refused to question prospective jurors about

possible bias resulting from the fact that Turner was

African American and his victim was white. Turner v.

Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27

(1986). The Supreme Court remanded the case, which

ultimately went to the circuit court of Southampton

County for a new sentencing hearing.’

Turner was represented at resentencing by court-

appointed lawyers, J. Lloyd Snook, III and Thomas L.

Woodward, Jr. The resentencing hearing (a jury pro-

ceeding) occurred on January 7-9 and 12, 1987. The

Commonwealth finished its case on Friday, January 9,

and the defense rested on Monday, January 12, without

putting on any mitigating evidence. The jury was then

instructed. Under Virginia’s death penalty scheme, the

jury may fix the sentence at death if it finds either one

of two aggravating factors: (1) “that there is a prob-

ability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to

society” (the “future dangerousness” factor), or (2) “that

his conduct in committing the offense . . . was outra-

geously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind or aggravated battery

1 We will refer to the original (1979) sentencing proceeding and

related collateral proceedings as “Turner I” and to the resentencing

proceeding and related collateral proceedings as “Turner II.”

to the victim” (the “vileness” factor). Va.Code Ann.

§ 19.2-264.2 (Michie 1990).* Turner’s jury was given

limiting instructions that defined the “aggravated battery”

and “depravity of mind” components of the vileness

factor.

On January 12, 1987, Turner’s resentencing jury re-

turned a verdict fixing his sentence at death based solely

on the vileness factor.* His sentence was upheld on direct

appeal to the Supreme Court of Virginia, and the United

States Supreme Court denied his certiorari petition.

Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483,

cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d

218 (1988).

Turner then filed a petition for a writ of habeas corpus

in the circuit court of Southampton County, alleging in-

effective assistance of counsel and other claims. On

September 11-13, 1989, the state court held an eviden-

tiary hearing on some of his ineffective assistance claims;

all other claims were dismissed without an evidentiary

hearing. On May 23, 1990, the court issued a letter order

that adopted the Commonwealth’s proposed findings of

2In full, Virginia’s death penalty statute provides:

In assessing the penalty of any person convicted of an

offense for which the death penalty may be imposed, a sentence

of death shall not be imposed unless the court or jury shall

(1) after consideration of the past criminal record of convic-

tions of the defendant, find that there is a probability that the

defendant would commit criminal acts of violence that would

constitute a continuing serious threat to society or that his

conduct in committing the offense for which he stands charged

was outrageously or wantonly vile, horrible or inhuman in

that it involved torture, depravity of mind or an aggravated

battery to the victim; and (2) recommend that the penalty

of death be imposed.

$ Although the trial court instructed the jury on the “future

dangerousness” factor, the jury did not find that factor established.

In Turner I, however, the jury found both the vileness factor and

the future dangerousness factor.

fact and rejected Turner’s ineffective assistance claims.

On July 5, 1990, the court issued a formal order incor- -

porating the letter order and dismissing Turner’s habeas

petition. On April 30, 1991, the Supreme Court of Vir-

ginia dismissed Turner’s habeas appeal. Turner v. Wil-

liams, No. 901335 (Va. Apr. 30, 1991). That court

1ejected his ineffective assistance claims on the merits and

concluded that his other claims were procedurally de-

faulted.

Turner next sought collateral review in the federal

courts. On December 10, 1991, he filed a 28 U.S.C.

§ 2254 petition for a writ of habeas corpus in the United

States District Court for the Eastern District of Virginia.

The Commonwealth moved for dismissal under Rule

12(b)(6) or, in the alternative, for summary judgment

under Rule 56 of the Federal Rules of Civil Procedure.

On February 1, 1993, the district court granted the Com-

monwealth’s motion for summary judgment and dis-

missed his petition. Turner v. Williams, 812 F.Supp.

1400 (E.D.Va.1993). The court found that most of

Turner’s claims were procedurally barred and rejected

the others on the merits. Turner now appeals to this

court.

Turner’s claims on this appeal can be grouped in two

general categories. First, he raises several challenges to

the application of the vileness factor. Second, he says his

lawyers rendered ineffective assistance in several respects.*

The Commonwealth responds that all of Turner’s claims

are barred under Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion),

because they would require us to announce new constitu-

tional rules of criminal procedure on collateral review.

The Commonwealth next asserts that Turner’s challenges

to the application of the vileness factor, as well as one

of his ineffective assistance claims, are procedurally

4Turner does not appeal the numerous other claims dismissed

by the district court below.

barred. We must first address these arguments to deter-

mine whether we can even reach the merits of Turner’s

claims.

In Teague v. Lane, a plurality of the Supreme Court

adopted the second Justice Harlan’s retroactivity approach

and held that a “new rule” of federal constitutional law

will not be applied or announced on collateral review un-

less the rule falls within one of two narrow exceptions.®

See generally Teague, 489 U.S. at 299-316, 109 S.Ct. at

1068-78 (plurality opinion). Shortly thereafter, Teague’s

retroactivity approach was adopted by a majority of the

Court and held to apply to capital cases. See Penry v.

Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d

256 (1989). The new rule principle is predicated on in-

terests in comity and in the finality of criminal convic-

tions. Gilmore v. Taylor, USS. ’ , 113

S.Ct. 2112, 2116, 124 L.Ed.2d 306 (1993).

The principle announced in Teague serves to ensure

that gradual developments in the law over which rea-

sonable jurists may disagree are not later used to

upset the finality of state convictions valid when

entered. This is but a recognition that the purpose of

federal habeas corpus is to ensure that state convic-

tions comply with the federal law in existence at the

time the conviction became final, and not to provide a

mechanism for the continuing reexamination of final

judgments based upon later emerging legal doctrine.

5 The first exception is for new rules that place “certain kinds

of primary, private individual conduct beyond the power of the

criminal lawmaking authority to proscribe.” Teague, 489 U.S. at

311, 109 S.Ct. at 1075 (plurality opinion) (internal quotation

marks omitted). The second exception is for “ ‘watershed rules of

criminal procedure’ implicating the fundamental fairness and

accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484,

495, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415 (1990). Because we

ultimately conclude that Turner’s claims are not barred by Teague,

we need not discuss whether his claims can fit within either narrow

exception.

Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822,

2827, 111 L.Ed.2d 193 (1990).

Generally, there are two types of Teague cases. In

the first type, the petitioner seeks to rely on a decision

announced after his conviction became final. In the sec-

ond type, the petitioner relies on a decision announced

before his conviction became final. In the latter, “it is

necessary to inquire whether granting the relief sought

would create a new rule because the prior decision is

applied in a novel setting, thereby extending the prece-

dent.” Stringer v. Black, USS. ’ ae ie:

S.Ct.1130, 1135, 117 L.Ed.2d 367 (1992); see also

Nickerson v. Lee, 971 F.2d 1125, 1132 n. 12 (4th Cir.

1992), cert. denied, —— US. ——, 113 S.Ct. 1289,

122 L.Ed.2d 681 (1993).

The policy behind the new rule principle is desirable;

but applying that principle leaves something to be de-

sired, for “[i]t is admittedly often difficult to determine

when a case announces a new rule... .” Teague, 489

U.S. at 301, 109 S.Ct. at 1070 (plurality opinion). In

Teague, the plurality said:

In general, . . . a case announces a new rule when

it breaks new ground or imposes a new obligation

on the States or the Federal Government. To put it

differently, a case announces a new rule if the result

was not dictated by precedent existing at the time

the defendant’s conviction became final. Jd. (cita-

tions omitted); see also Penry, 489 U.S. at 314, 109

S.Ct. at 1077; Saffle v. Parks, 494 U.S. 484, 488,

110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990);

Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct.

1212, 1216, 108 L.Ed.2d 347 (1990); Sawyer, 497

U.S. at 234, 110 S.Ct. at 2827; Stringer, US.

at , 112 S.Ct. at 1135; Graham v. Collins, ——

US. , , 113 S.Ct. 892, 897, 122 L.Ed.2d

260 (1993); Gilmore, U.S. at , 53S BAX.

at 2116; Caspari v. Bohlen, U.S. ’ :

Bohlen,

114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Sub-

sequent cases have added more words (if not guid-

ance) to the new rule inquiry. See, e.g., Butler, 494

U.S. at 415, 110 S.Ct. at 1217 (a case announces a

new rule when the rule “was susceptible to debate

among reasonable minds”); Parks, 494 U.S. at 488,

110 S.Ct. at 1260 (a case does not announce a new

rule if “a state court considering [petitioner’s] claim

at the time his conviction became final would have

felt compelled by existing precedent to conclude that

the rule [petitioner] seeks was required by the Con-

stitution”); Sawyer, 497 U.S. at 234, 110 S.Ct. at

2827 (a “gradual development[ ] in the law over

which reasonable jurists may disagree” is a new

rule); Graham, USS. at , 113 S.Ct. at 898

(a case announces a new rule “unless reasonable ju-

rists hearing petitioner’s claim at the time his con-

viction became final ‘would have felt compelled by

existing precedent’ to rule in his favor”). In its most

recent new rule case, the Court set forth the follow-

ing three-pronged approach:

In determining whether a state prisoner is entitled to

habeas relief, a federal court should apply Teague by

proceeding in three steps. First, the court must as-

certain the date on which the defendant’s conviction

and sentence became final for Teague purposes. Sec-

ond, the court must [s]urve[y] the legal landscape as

it then existed, and determine whether a state court

considering [the defendant’s] claim at the time his

conviction became final would have felt compelled

by existing precedent to conclude that the rule [he]

seeks was required by the Constitution. Finally, even

if the court determines that the defendant seeks the

benefit of a new rule, the court must decide whether

that rule falls within one of the two narrow excep-

tions to the nonretroactivity principle.

US. at , 114 S.Ct. at 953 (internal

quotation marks and citations omitted). Guided by

10a

Teague and the cases it has spawned, we will proceed

through the Bohlen formula.

Turner’s conviction and sentence became final in 1988,

when the United States Supreme Court denied his peti-

tion for certiorari in Turner I]. We must therefore de-

termine whether a state court considering Turner’s claims

in 1988 would have felt compelled to conclude that the

rules he seeks were required by the Constitution. To do

this, we address the Commonwealth’s Teague challenges

in turn, and we ultimately conclude that Turner does not

seek new rules.

A. The Applicability of Teague y. Lane to Turner’s

Claim that the Commonwealth Applied the Vileness

Factor in an Unconstitutional Manner

Turner contends that Virginia’s facially vague vileness

factor was not constitutionally applied in his case. Spec-

ifically, he says that the limiting definitions of “depravity

of mind” and “aggravated battery” given to his jury were

inadequate because they did not sufficiently cure the

vague language of the vileness factor.* Further, he says

the Supreme Court of Virginia, which applied the same

limiting construction, did not cure that infirmity with an

adequate review of his sentence. He thus seeks the bene-

fit of a rule that a vague aggravating factor must be

supplemented with constitutionally sufficient limiting in-

structions or appellate review.

Turner bases his claim on Justice Stewart’s plurality

opinion in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct.

1759, 64 L.Ed.2d 398 (1980), decided eight years before

6 The resentencing court instructed the jury that “an aggra-

vated battery is a battery which qualitatively and quantitatively is

more culpable than the minimum necessary to accomplish an act of

murder.” JA 517-P. The court further instructed that “depravity

of mind is a degree of moral turpitude and and [sic] psychical

debasement surpassing that inherent in the definition of ordinary

legal malice and premeditation.” JA 517-Q.

hall co ni aes Loe Hs eae ool

lla

his conviction became final. In Godfrey, the Supreme

Court vacated a death sentence that was based on an ag-

gravating factor virtually identical to Virginia’s vileness

factor.’ Godfrey’s jury was instructed only with the bare

language of the aggravating factor, the jury did not re-

ceive any limiting instructions. Id. at 426, 100 S.Ct. at

1763-64 (plurality opinion). Moreover, on direct review

the Georgia Suprerae Court, in conclusory fashion, held

that the evidence supported a finding of vileness; the

court did not provide any limiting construction to narrow

the statutory language. /d. at 427, 432, 100 S.Ct. at

1764, 1766-67 (plurality opinion ).

Justice Stewart’s plurality opinion began by noting that

the language of the vileness factor was vague: There

was nothing in the words “ ‘outrageously or wantonly vile,

horrible, and inhuman’... standing alone, that implie[d]

any inherent restraint” on the jury’s discretion to impose

the death penalty. /d. at 428, 100 S.Ct. at 1764-65

(plurality opinion). The plurality observed that the

Georgia courts did not cure that vagueness through ade-

quate jury instructions or meaningful appellate review.

Id. at 429, 432, 100 S.Ct. at 1765, 1766-67 (plurality

opinion). In vacating Godfrey’s sentence, the plurality

emphasized a central tenet of the Court's Eighth Amend-

ment jurisprudence: The state “must channel the sen-

tencer’s discretion by clear and objective standards that

provide specific and detailed guidance, and that make ra-

tionally reviewable the process for imposing a sentence

of death.” Id. at 428, 100 S.Ct. at 1764-65 (plurality

opinion) (footnotes and internal quotation marks

omitted ).

7 The Georgia factor permitted the imposition of death if it was

found beyond a reasonable doubt that the offense “was outrageously

or wantonly vile, horrible or inhuman in that it involved torture,

depravity of mind, or an aggravated battery to the victim.” Id.

446 U.S. at 422, 100 S.Ct. at 1762 (plurality opinion ) (quoting

Ga.Code § 27-2534.1(b) (7) (1978)). Compare supra note 2 (Vir-

ginia statute).

12a

We read Godfrey to say that the Eighth Amendment

proscribes the imposition of a death sentence based on a

vague aggravating factor unless the vague factor has been

narrowed by a constitutionally sufficient limiting con-

struction, either at sentencing (in the form of a limiting

instruction when a jury is involved) or on appellate re-

view. Not just any limiting construction will do; a con-

stitutionally sufficient one is required. See id. at 433,

100 S.Ct. at 1767 (plurality opinion) (“Thus, the validity

of the petitioner’s death sentences turns on whether...

the Georgia Supreme Court can be said to have applied

a constitutional construction of the [vileness factor].”)

(emphasis added); Jones v. Murray, 976 F.2d 169, 174

(4th Cir.) (“[W]hen limiting instructions are used to

cure a defect in a facially vague statute, the instructions

must meet the specificity requirements of Godfrey.”),

cert. denied, US. , 113 S.Ct. 27, 120 L.Ed.2d

951 (1992); Turner, 753 F.2d at 353 (noting that the

“constitutional flaw of Godfrey” was “the Georgia Court’s

failure to give a constitutional construction to the vile-

ness criterion”) (emphasis added). A limiting construc-

tion that is itself too vague leaves a defendant in no bet-

ter position than the petitioner in Godfrey—sentenced

on the basis of “ ‘standards so vague that they would fail

adequately to channel the sentencing decision... .””

Godfrey, 446 U.S. at 428, 100 S.Ct. at 1765 (plurality

opinion) (quoting Gregg v. Georgia, 428 U.S. 153, 195

n. 46, 96 S.Ct. 2909, 2935 n. 46, 49 L.Ed.2d 859

(1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

“Vague terms do not suddenly become clear when they

are defined by reference to other vague terms.” Cart-

wright v. Maynard, 822 F.2d 1477, 1489 (10th Cir.

1987) (en banc), affd, 486 U.S. 356, 108 S.Ct. 1853,

100 L.Ed.2d 372 (1988).°

8 See Shell v. Mississippi, 494 U.S. 1, 3, 111 S.Ct. 313, 314, 112

L.Ed.2d 1 (1990) (Marshall, J., concurring) (“Obviously, a limit-

ing instruction can be used to give content to a statutory factor

that ‘is itself too vague to provide any guidance to the sentencer’

ie. sn dg eigen he * de patna. " ‘

l3a

Godfrey thus dictates Turner’s challenge to the consti-

tutional sufficiency of the limiting instructions given to

his jury as well as the appellate review of his sentence.

Indeed, the Supreme Court, in Stringer v. Black, supra,

has recently held that the application of Godfrey did not

amount to a new rule for purposes of Teague. Stringer

addressed, inter alia, whether Maynard v. Cartwright, 486

U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988),

announced a new rule under Teague. Cartwright involved

an Oklahoma death sentence predicated on two aggra-

vating factors, one of which permitted the imposition of

a death sentence if the defendant’s murder was “especially

heinous, atrocious, or cruel” (the “heinousness” factor).

Cartwright, 822 F.2d at 1478. Cartwright’s sentencing

jury was given a limiting instruction beyond the bare

terms of the heinousness factor. Jd. at 1488. On direct

review, the Oklahoma Court of Criminal Appeals _af-

firmed after applying a limiting construction to the facts

of Cartwright’s case, focusing on the “manner” in which

the murder was committed. See Cartwright v. Oklahoma,

695 P.2d 548, 554 (Okla.Crim.App.1985). That court

previously had approved jury instructions similar to those

given to Cartwright’s jury. Cartwright, 822 F.2d at

1487-88.

In his habeas petition, Cartwright alleged that the Okla-

homa courts applied the heinousness factor in an uncon-

stitutionally vague and overbroad manner in his case.

only if the limiting instruction’s own ‘definitions ‘are constitution-

ally sufficient,’ that is, only if the limiting instruction itself ‘pro-

vide[s] some guidance to the sentencer.’” (quoting Walton v.

Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511

(1990) )) ; Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir.1989)

(“The depravity of mind instruction . . . fails to meet Godfrey

requirements. . . . The depravity instruction in this case, although

it contains more words, is no more capable of channeling discretion

than the . . . instruction rejected in [Maynard v. Cartwright, 486

U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)] or the...

instruction in Godfrey.”), vacated on other grounds, 500 U.S. 901,

111 S.Ct. 1678, 114 L.Ed.2d 73 (1991).

l4a

Id. at 1478. Specifically, Cartwright claimed: (1) the

language of the heinousness factor was vague, and (2)

the Oklahoma courts failed to apply a constitutionally

sufficient limiting construction (through jury instructions

or on direct review of his sentence) to cure the vagueness.

Id. The Tenth Circuit, sitting en banc, agreed. See id.

at 1479 (“the Oklahoma courts failed to apply a con-

Stitutionally adequate narrowing construction in this

case”), 1491, 1492. The Tenth Circuit’s decision was

predicated on Godfrey. See id. at 1489, 1491. The Su-

preme Court affirmed the Tenth Circuit. The Court noted

the Tenth Circuit’s conclusion that the Oklahoma courts

had not “adopted a limiting construction that cured the

infirmity” of the vague heinousness factor. Cartwright,

486 U.S. at 360, 108 S.Ct. at 1857. Significantly, the

Court thought the Tenth Circuit “was quite right in hold-

ing that Godfrey controls this case.” Jd. at 363, 108

S.Ct. at 1858-59.

Then, four years after it decided Cartwright, the Court

decided Stringer v. Black. In Stringer, the habeas peti-

tioner attempted to rely on Cartwright to challenge the

constitutionality of his death sentence. Stringer,

U.S. at , 112 S.Ct. at 1133. The State of Mississippi

invoked Teague, arguing that the petitioner could not rely

on Cartwright because that decision was announced after

his conviction became final. Jd. The Court thus had to

decide whether Cartwright announced a new rule, i.e.,

whether Cartwright’s challenge was dictated by Godfrey.

Id. The Court held: “In applying Godfrey to the lJan-

guage before us in [Cartwright], we did not ‘brea[k] new

ground.’ [Cartwright] was, therefore, for purposes of

Teague, controlled by Godfrey, and it did not announce

a new rule.” /d. at - , 112 S.Ct. at 1135-36

(quoting Butler, 494 U.S. at 412, 110 S.Ct. at 1216).

Stringer thus teaches that Teague does not bar a habeas

petitioner’s invocation of Godfrey to challenge the con-

stitutional sufficiency of limiting insiructions or appellate

AF ae RAI BIL

15a

review if a state uses a vague aggravating factor.

See Wiley v. Puckett, 969 F.2d 86, 97 (5th Cir.1992);

cf. Newlon v. Armontrout, 885 F.2d 1328, 1331-35 (8th

Cir.1989), cert. denied sub nom. Delo v. Newlon, 497

U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990);

Smith v. Dixon, 766 F.Supp. 1370, 1383-86 (E.D.N.C.

1991), aff'd, 996 F.2d 667 (4th Cir. 1993), rev'd on

other grounds, 14 F.3d 956 (4th Cir.1994) (en banc),

petition for cert. filed, (U.S. May 27, 1994) (No. 93-

9353): Jones v. Murray, 976 F.2d 169, 173 (4th Cir.)

(both parties agreed that the application of Godfrey was

not barred by Teague and therefore we did not have to

reach the Teague issue; nevertheless, we indicated that

challenges to Virginia’s limiting instructions and appellate

review were not barred by Teague), cert. denied,

USS. . 113 S.Ct. 27, 120 L.Ed.2d 951 (1992).

The similarities between Cartwright and the instant case

are striking. Like Cartwright, Turner was sentenced on

the basis of a vague statutory aggravating factor. Like

Cartwright, Turner’s jury was given a limiting instruction

and a limiting construction was applied on appellate re-

view. Like Cartwright, Turner argues that the Common-

wealth’s limiting construction was constitutionally insuffi-

cient: i.e., it did not cure the infirmity of the aggravating

factor and thereby failed to guide adequately the jury’s

discretion. And, like Cartwright, Turner’s challenge is

predicated on Godfrey. Because Stringer expressly held

that Godfrey dictated Cartwright’s claim and thus Cart-

wright did not seek the benefit of a new rule for purposes

of Teague, we are compelled to reach the same conclusion

here.

In sum, we are satisfied that a state court in 1988

would have felt compelled to conclude that Godfrey and

Cartwright dictate the rule or result Turner seeks. (AI-

though Cartwright came down shortly after Turner’s con-

viction became final, Turner may use that decision be-

l6a

cause Cartwright did not announce a new rule. See gen-

erally Stringer, supra.)°

® Several Supreme Court decisions announced after Turner’s

conviction became final seemingly take for granted that challenges

to a state’s limiting construction are predicated on Godfrey and

Cartwright. For example, in Shell, swpra, a nonhabeas case, the

Court, in a per curiam opinion, reversed the petitioner’s sentence,

saying: “Although the trial court in this case used a limiting

instruction to define the [heinousness] factor, that instruction is

not constitutionally sufficient.” 498 U.S. at 1, 111 S.Ct. at 313

(citing Godfrey and Cartwright). Similarly, Walton v. Arizona,

supra, a nonhabeas case, involved a Godfrey/Cartwright challenge

to Arizona’s limiting construction of its heinousness factor. The

Supreme Court said:

When a federal court is asked to review a state court’s

application of an individual statutory aggravating... circum-

stance in a particular case, it must first determine whether the

statutory language defining the circumstance is itself too vague

to provide any guidance to the sentencer. Jf so, then the

federal court must attempt to determine whether the state

courts have further defined the vague terms and, if they have

done so, whether those definitions are constitutionally sufficient,

i.e., whether they provide some guidance to the sentencer.

Walton, 497 U.S. at 654, 110 S.Ct. at 3057-58 (first emphasis

added). In Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092,

3098-99, 111 L.Ed.2d 606 (1990), the habeas petitioner likewise

argued that Arizona’s construction of its heinousness factor con-

travened Godfrey and Cartwright. The Court said:

We have reiterated the general principle that aggravating

circumstances must be construed to permit the sentencer to

make a principled distinction between those who deserve the

death penalty and those who do not.

Indeed, in [Cartwright] we applied the teachings of Godfrey

to hold that the Oklahoma courts had not construed Oklahoma’s

[heinousness factor] in a manner sufficient “to cure the

unfettered discretion of the jury and to satisfy the commands

of the Eighth Amendment.”

Id. at 776, 110 S.Ct. at 3100 (quoting Cartwright, 486 U.S. at 364,

108 S.Ct. at 1859) (emphasis added) (citations omitted); see

also Arave v. Creech, US. ' - , 118 S.Ct. 1534,

1540-41, 123 L.Ed.2d 188 (1993).

17a

The Commonwealth nevertheless emphasizes that be-

fore Turner’s conviction became final in 1988, our court,

in Turner v. Bass, supra, upheld a limiting construction

of the vileness factor that was virtually identical to the

limiting instruction given to Turner’s jury and applied on

direct review of his sentence. Thus, the argument follows,

a Virginia court in 1988 would not have felt compelled

to declare unconstitutional the specific limiting construc-

tion used in his case. Cf. Graham, U.S. at ;

113 S.Ct. at 903. And, relatedly, the argument goes, a

decision in Turner’s favor would require the creation of a

new rule insofar as it would repudiate Turner v. Bass.

See id. at , 113 S.Ct. at 897.

Before we address this argument, we note that Turner

challenges the limiting definitions of two components of

the vileness factor, “aggravated battery” and “depravity

of mind” limiting definition. See Turner, 753 F.2d at

(virtually identical) limiting definition of “aggravated bat-

tery”; we did not address the sufficiency of the “depravity

of mind” limiting definition. See Turner, 753 F.2d at

353. Thus, were we to accept the Commonwealth's

Teague theory here, at most we would be barred from

reviewing the sufficiency of the aggravated battery defini-

tion.

Turning then to the limiting definition of aggravated

battery applied in Turner II, the Commonwealth, on the

face of it, appears to have a good argument that Turner

seeks a new rule vis-a-vis Turner v. Bass. However, the

answer is not so simple. The Commonwealth’s theory

focuses on the most specific conclusion or holding Turner

hopes we reach: that the limiting definition used in his

case was constitutionally insufficient. But we cannot ig-

nore the fact that the principle of law (the “constitutional

rule[ ] of criminal procedure,” Teague, 489 U.S. at 316,

109 S.Ct. at 1078 (plurality opinion)) from which

Turner seeks to benefit is the extant rule propounded in

Godfrey and reaffirmed in Cartwright. Cf. Bohlen,

18a

USS. at , 114 S.Ct. at 955 (in its new rule analysis,

the Court focused on the more general rule sought—that

the Double Jeopardy Clause applies to a noncapital sen-

tencing proceeding—as opposed to the specific holding

sought by the petitioner, that his sentence violated the

Double Jeopardy Clause). Here, we are asked simply to

apply, rather than extend, the Godfrey/Cartwright prin-

ciple. Cf. Stringer, USS. at » Fie BAA. ot 1399.

Although “it can be a difficult question whether a particu-

lar holding presents simply a new setting for an old rule,

Or announces a new one,” Graham, ——— US. at .

113 S.Ct. at 918 (Souter, J., dissenting), we think the

former best characterizes Turner’s claim.

Penry v. Lynaugh makes the point. In Penry, the peti-

tioner (Penry) claimed he “was sentenced to death in

violation of the Eighth Amendment because the jury was

not instructed that it could consider and give effect to his

mitigating evidence in imposing its sentence.” Penry, 492

U.S. at 307, 109 S.Ct. at 2941. On collateral review, the

Fifth Circuit had rejected Penry’s claim because his jury

was allowed to hear all mitigating evidence (mental limi-

tations and abused childhood). See Penry v. Lynaugh,

832 F.2d 915, 920 (Sth Cir.1987), aff'd, 492 U.S. 302,

109 S.Ct. 2934, 106 L.E.2d 256 (1989). The court

nevertheless was concerned that, under the Texas scheme,

Penry’s jury was not able to consider and give effect to

his mitigating evidence. See generally id. at 920-26. The

Fifth Circuit concluded that it could not rule in Penry’s

favor “because prior Fifth Circuit decisions have rejected

claims similar to Penry’s. These prior panel holdings bar

a different holding by us.” Id. at 926 (emphasis added)

(citations omitted). Thus, granting Penry the relief he

sought would have required the Fifth Circuit to overrule

its precedents. The Supreme Court granted certiorari.

The Supreme Court first addressed whether Penry’s

claim was barred under Teague. See generally Penry, 492

U.S. at 313-19, 109 S.Ct. at 2943-47. One would think

ht haat sie REGAL tot AA tailed iil ACT ON IO Pla A REAR OLN FE cba Rit tebe NBT wa GE Se

ee ae IS beled

19a

this was an easy case; granting Penry the relief he sought

seemingly would have required the creation of a new rule

insofar as it would have repudiated prior Fifth Circuit

decisions. And, with those Fifth Circuit cases in the legal

landscape, presumably a state court at the time his con-

viction became final would not have felt compelled to

grant Penry the relief he sought. But the Supreme Court

held that Penry’s claim was not Teague-barred: He did

not seek a new rule because he simply sought the applica-

tion (not the extension) of a preexisting rule of law in a

new factual setting. See id. at 314-15, 318-19, 109 S.Ct.

at 2944-45, 2946-47.

[T]he facial validity of the Texas death penalty

statute had been upheld in [Jurek v. Texas, 428

U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) ]

on the basis of assurances that the special issues

would be interpreted broadly enough to enable sen-

tencing juries to consider all of the relevant mitigat-

ing evidence a defendant might present. Penry ar-

gues that those assurances were not fulfilled in his

particular case because, without appropriate instruc-

tions, the jury could not fully consider and give

effect to the mitigating evidence of his mental retar-

dation and abused childhood in rendering its sentenc-

ing decision. . . . [I]n light of the assurances upon

which Jurek was based, we conclude that the relief

Penry seeks does not “impos[e] a new obligation” cn

the States of Texas.

Id. 492 U.S. at 318-19, 109 S.Ct. at 2946-47 (emphasis

in original) (quoting Teague, 489 U.S. at 301, 109 S.Ct.

at 1070 (plurality opinion)). The Jurek rule created

a standard which the Court simply applied to the facts of

Penry’s case, i.e., to his mitigating evidence. See Parks,

494 US. at 492, 110 S.Ct. at 1262. Despite the fact that

the specific holding announced in Penry was novel and

repudiated prior Fifth Circuit decisions, Penry’s claim

was not Teague-barred because it did not impose a new

obligation on the state; the state already was obligated to

20a

apply the Jurek standard. Accord Stringer, U.S. at

- , 112 S.Ct. at 1135-40 (Court applying the

principle announced in Godfrey).

Penry thus demonstrates (and Stringer confirms) the

critical distinction between the extension of an existing

rule on collateral review and the mere application of an

existing normative rule (such as Godfrey/Cartwright) to

a new set of facts.*° Cf. Stringer, U.S. at , 112

S.Ct. at 1135. Our court too has recognized this distinc-

tion. In West v. Wright, 931 F.2d 262 (4th Cir.1991),

rev'd on other grounds, ia , 112 S.Ct. 2482,

120 L.Ed.2d 225 (1992), the petitioner raised a suffi-

ciency of the evidence challenge under Jackson v. Vir-

ginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). The Commonwealth argued that granting the

petitioner the relief he sought would have created a new

rule in violation of Teague. West, 931 F.2d at 265.

Specifically, the Commonwealth noted that, although Jack-

son v. Virginia came down before petitioner’s conviction

became final, a decision in his favor would have ~equired

our court to disregard Virginia’s common law permissive

inference that one in unexplained possession of stolen

goods is the thief. 7d. We rejected the Teague challenge:

“Obviously, a federal habeas court cannot be said to apply

a ‘new constitutional rule’ whenever it applies the Jackson

10 See Chambers v. United States, 22 F.3d 939, 942 (9th Cir.1994)

(“We do not create a new rule when we simply apply ‘a rule of this

general application,’ Wright v. West, U.S. —, , 112

S.Ct. 2482, 2499 (Kennedy, J., concurring), to a new set of facts.”

(citing Stringer, supra)); Beam v. Paskett, 3 F.3d 1301, 1310 (9th

Cir.1993) (“As the Supreme Court has recently noted [in Stringer],

a rule is not ‘new’ simply because it is applied to a set of different

facts. Because we simply applied the general Herndon rule [holding

that any limitation upon individual liberty must have an appropri-

ate relation to the safety of the state] to the specific facts of this

case, we conclude that our holding does not create a ‘new’ rule.”

(citation omitted)), cert. denied sub nom. Arave v. Beam, ——

US. , 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994).

CERN eee eR ee

oath fas Sia ue

2la

v. Virginia test to a ‘new’ set of facts in evidence.” Id.

at 266.”

A divided Supreme Court reversed our West decision

on the merits after concluding there was sufficient evi-

dence to support the petitioner’s conviction under the

Jackson standard; but the Court did not directly address

the Teague issue. See generally Wright v. West,

US. , 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992).”

However, in her concurring opinion, Justice O’Connor,

the author of the plurality opinion in Teague, emphasized:

“If a proffered factual distinction between the case under

consideration and pre-existing precedent does not change

the force with which the precedent’s underlying principle

applies, the distinction is not meaningful, and any devia-

tion from precedent is not reasonable.” /d. at . oie

S.Ct. at 2497 (O’Connor, J., concurring in the judg-

ment). Justice Kennedy elaborated:

If the rule in question is one which of necessity re-

quires a case-by-case examination of the evidence,

then we can tolerate a number of specific applica-

tions without saying that those applications them-

selves create a new rule. The rule of [Jackson v.

Virginia] is an example. By its very terms it pro-

vides a general standard which calls for some ex-

11 Accord Paradis v. Arave, 20 F.3d 950, 953-54 (9th Cir.1994)

(holding Jackson v. Virginia challenge is not barred by Teague;

also holding that Teague did not bar application of either Gardner

v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (due

process requirement that a defendant be advised of all materials

to be used against him in sentencing), or Enmund v. Florida, 458

U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (Eighth Amend-

ment rule requiring proportionate culpability for imposing death

sentence) ).

12 Justice Thomas wrote an opinion joined by two other Justices.

Justice O’Connor wrote an opinion joined by two other Justices.

Justices White, Kennedy and Souter each wrote concurring opin-

ions, none of which were joined by cther Justices.

22a

amination of the facts. . .. Where the beginning

point is a rule of this general application, a rule

designed for the specific purpose of evaluating a

myriad of factual contexts, it will be the infrequent

case that yields a result so novel that it forges a

new rule, one not dictated by precedent.

Id. at , 112 S.Ct. at 2499 (Kennedy, J., concurring

in the judgment); see also Graham, US. at .

113 S.Ct. at 918 (Souter, J., dissenting) (noting that

“fo]ne general rule that has emerged under Teague is

that application of existing precedent in a new factual

setting will not amount to announcing a new rule”).”

In sum, when we apply an extant normative rule to a

new set of facts (leaving intact the extant rule) generally

we do not announce a new constitutional rule of criminal

procedure for purposes of Teague. To be sure, Teague

is implicated “by the application of an old rule in a man-

13 This point was not lost on the second Justice Harlan, the

father of our new rule jurisprudence. He emphasized that “it is

necessary to determine whether a particular decision has really

announced a ‘new’ rule at a!l or whether it has simply applied

a well-established constitutional principle to govern a case which

is closely anologous to those which have been previously considered

in the prior case law.” Desist v. United States, 394 U.S. 244,

263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) (Harlan, J.,

dissenting) (emphasis added); see also Mackey v. United States,

401 U.S. 667, 695, 91 S.Ct. 1160, 1181, 28 L.Ed.2d 404 (1971)

(Harlan, J., concurring in judgments in part and dissenting in

part). Other pre-Teague retroactivity cases similarly have high-

lighted this point. See, e.g., Yates v. Aiken, 484 U.S. 211, 216,

108 S.Ct. 534, 537, 98 L.Ed.2d 546 (1988) (“many ‘new’ holdings

are merely applications of principles that were well settled at the

time of conviction’) ; United States v. Johnson, 457 U.S. 537, 549,

102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982) (“[WJhen a decision

of this Court merely has applied settled precedents to new and

different factual situations, no real question has arisen as to

whether the later decision should apply retrospectively. In such

cases, it has been a foregone conclusion that the rule of the later

case applies in earlier cases, because the later decision has not

in fact altered that rule in any material way.’’).

23a

ner that was not dictated by precedent.” Stringer,

USS. at , 112 S.Ct. at 1135; cf. Butler, 494 US. at

414-15, 110 S.Ct. at 1217-18. But when a rule provides

a standard that of necessity requires a case-by-case exami-

nation, generally the results yielded by that application

are not “new rules” because those results do not “break[ |

new ground or impose[ ] a new obligation on the States

or the Federal Government.” Teague, 489 USS. at 301,

109 S.Ct. at 1070 (plurality opinion); cf. Penry, 492

US. at 315, 319, 109 S.Ct. at 2945, 2947 (emphasizing

that the application of the pre-existing rule at issue did

not impose a new obligation on the state). Rather, the

state courts presumably are aware of the pre-existing rule

and it is foreseeable to them that the rule is to be applied.

Consequently, although comity interests would have us

defer to a state court’s determination that a petitioner

seeks the expansion or extension of a pre-existing rule,

i.e., a new rule, reflexive deference is inappropriate when

we are asked to review a state court’s application of that

rule to the specific facts of a new case. Otherwise, we

would have to say that Teague altered the standard of

review on habeas, which the Supreme Court declined to

hold in Wright v. West. See West, U.S. at _

112 S.Ct. at 2497 (O’Connor, J., concurring in the judg-

ment) (“In Teague, we refused to give state prisoners the

retroactive benefit of new rules of law, but we did not

create any deferential standard of review with regard to

old rules.”); cf. Sawyer, 497 U.S. at 239, 110 S.Ct. at

2830 (“Federal habeas corpus serves to ensure that state

convictions comport with the federal law that was estab-

lished at the time the petitioner’s conviction became

final.”).”

14 We think Judge Luttig, in his opinion concurring in the judg-

ment, overlooks the significance of Wright v. West. To reiterate,

there the Court declined to hold that Teague established a deferen-

tial standard of review of state court decisions of federal] law.

See West, U.S. at , 112 S.Ct. at 2498 (Kennedy, J., con-

curring in the judgment) (“Teague did not establish a deferential

<1 ae Sl

24a

We now return to the instant case. Godfrey held that

state courts must supplement facially vague aggravating

factors with “constitutionally sufficient,” Walton, 497 U.S.

at 655, 110 S.Ct. at 3058, limiting instructions or appel-

late review. Godfrey and Cartwright, like Jackson v. Vir-

ginia, set forth “a general standard which calls for some

examination of the facts,” West, US. at » ia

S.Ct. at 2499 (Kennedy, J., concurring in the judgment)

—namely, examination of the language of the particular

limiting instruction or the appellate review at issue. Al-

though the state courts below may have relied on Turner

v. Bass, supra, in concluding that the limiting construction

standard of review of state court decisions of federal law.”).

Rather, the familiar standards still control: On federal habeas a

state court’s factual findings are “presumed to be correct,” 28

U.S.C. § 2254(d), whereas its findings on questions of law and

mixed questions of fact and law receive independent federal con-

sideration, Miller v. Fenton, 474 U.S. 104, 115, 106 S.Ct. 445, 452,

88 L.Ed.2d 405 (1985). We believe that it is not a question of

historical fact whether a state court has given a constitutionally

sufficient limiting instruction for a vague aggravating factor or

whether a state court has provided constitutionally sufficient appel-

late review of a sentence based a vague factor. Therefore, the

sufficiency of the limiting instruction or appellate review is re-

viewed de novo.

Judge Luttig, however, suggests that so long as a reasonable

state court jurist finds the instruction/appellate review at issue to

be constitutionally sufficient (more accurately, if the jurist would

not have felt compelled to find the instruction or review constitu-

tionally insufficient), we defer to the state court’s judgment. To

us, this is contrary to Miller and West. See West, U.S. at .

112 S.Ct. at 2497 (O’Connor, J., concurring in the judgment)

(“[Wle have [not] held in the past that federal courts must

presume the correctness of a state court’s legal conclusions on

habeas, or that a state court’s incorrect legal determination has

ever been allowed to stand because it was reasonable. We have

always held that federal courts, even on habeas, have an independ-

ent obligation to say what the law is.”); id. at ——, 112 S.Ct. at

2499 (Kennedy, J., concurring in the judgment) (“The comity

interest [underlying Teague] is not, however, in saying that since

the question is close the state court decision ought to be deemed

correct because we are in no better position to judge.”).

25a

of “aggravated battery” given to Turner’s jury and applied

on review was constitutionally sufficient, that conclusion is

not subject to a deferential standard of review under

Teague. To borrow the language from Penry, Godfrey

upheld the statutory vileness factor on the basis of “assur-

ances” that the sentencer’s discretion would be channelled

by constitutionally sufficient standards. Turner “argues

that those assurances were not fulfilled in his particular

case because, without appropriate instructions [or appel-

late review, his sentencer’s discretion could not be chan-

nelled by clear and objective standards]... . [I]n light

of the assurances upon which [Godfrey] was based, we

conclude that the relief [Turner] seeks does not ‘impos[e]

a new obligation’ on the State of [Virginia].” See Penry,

492 US. at 318-19, 109 S.Ct. at 2946-47 (quoting

Teague, 489 U.S. at 301, 109 S.Ct. at 1077 (plurality

opinion) ).”

In the final analysis, we hold that, in challenging the

Commonwealth’s application of its vileness factor in his

case, Turner does not “seek[] the benefit of a new rule,”

15 Judge Luttig takes the position that a holding in Turner’s

favor “would, quite obviously, impose a ‘new obligation’ on the

Commonwealth of Virginia,” post, at 919-20 (citation omitted),

but he says that the holding in Penry “vacating Penry’s death

sentence, and requiring an additional instruction that the jury

could consider his mitigating evidence as such, did not ‘impose a

new obligation’ on the State of Texas,” id. at

(citation omitted). According to Judge Luttiz, Penry did not

impose a new obligation because “such an obligation”’—that the

state could not foreclose altogether the sentencer’s consideration

of a defendant’s mitigating evidence—“had already been imposed

by prior law.” Id. But in the instant case, as in Penry, there is

an extant obligation imposed on ‘he states: When a state uses a

vague aggravating factor, the state’s limiting instruction or appel-

late review must be constitutionally sufficient. See supra note 9.

The question presented in Penry and the instant case is the same:

has the state fulfilled its obligation. As Judge Luttig’s discussion

of Penry indicates, a federal court's finding that a state failed to

fulfill an extant obligation does not necessarily impose a new

obligation.

toe i, 4

26a

Bohlen, U.S. at , 114 S.Ct. at 953, for pur-

poses of Teague. Accordingly, Teague does not bar us

from reaching the merits.

B. The Applicability of Teague v. Lane to Turner's

Ineffective Assistance of Counsel Claims

Turner claims that his lawyers at the resentencing pro-

ceeding rendered ineffective assistance under Strickland v.

Washington, 466 U.S. 668, 104 S Ct. 2052, 80 L.Ed.2d

674 (1984). Although Stirckland was decided four years

before Turner’s conviction became final, the Common-

wealth contends that Turner’s Strickland claims are

Teague-barred. The Commonwealth’s Teague challenge

is predicated on its view that, “under the facts of this

case ‘reasonable jurists reading the case law that existed’

in 1988 could have concluded that defense counsel were

not ineffective... .” Appellee’s Br. at 9. As noted above,

Teague does not mandate deference to a state court’s

application of law to fact. See generally Wright v. West,

supra. Rather, mixed questions of law and fact are sub-

ject to de novo review on habeas. Miller v. Fenton, 474

U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405

(1985). And, whether counsel rendered ineffective assist-

ance is a mixed question of law and fact. Strickland,

466 US. at 698, 104 S.Ct. at 2070. Teague thus does

not mandate deference to the Virginia courts’ application

of Strickland to the facts of Turner’s case. We therefore

reject the Commonwealth’s argument that Teague bars us

from reaching the merits of Turner’s various ineffective

assistance of counsel claims.”

16 “Because Teague and its Supreme Court progeny ... have

sent somewhat inconsistent signals, the circuit courts have had

difficulty in coherently following those cases.” 8C James W. Moore

et al., Moore’s Federal Practice § 14.06[4], App. 14-102.5 (2d ed.

1994). Yet Judge Luttig tells us that the Supreme Court’s new

rule cases have been consistent and clear. Despite that alleged

consistency, his opinion is devoted in large measure to a discussion

of but one case, Graham v. Collins, supra, a case which he says

27a

Ill

The Commonwealth next contends that Turner proce-

durally defaulted on most of his claims. First, it says he

we have ignored. We have not ignored Graham. Rather, because

we think the Court has not spoken in one clear voice, we have

attempted to reconcile the Court’s new rule cases. To that end, our

attention was drawn to Stringer and Penry, the two new rule

cases where the Court found no Teague problem. We think the

instant case is more like Stringer and Penry than Graham and the

Court’s other new rule cases.

Before addressing the distinction between Penry and Graham, we

pause to comment on J udge Luttig’s assessment of Stringer as “an

unexceptional application of the Court’s consistently-applied stand-

ard,” post, at 912-13. This would come as a surprise to the three

Stringer dissenters. For one thing, Stringer held that Clemons v.

Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990),

did not announce a new rule despite the fact that an earlier case,

Zant v. Stephens, 462 U.S. 862, 890, 103 S.Ct. 2733, 2749-50, 77

L.Ed.2d 235 (1983), had expressly left undecided the constitutional

issue decided in Clemons—whether in a “weighing” state the state

court must reweigh aggravating factors against mitigating evi-

dence if one of the aggravating factors used by the sentencer is

held to be invalid. The Stringer dissenters were thus baffled about

how a reasonable jurist at the time Clemons’s conviction became

final could have felt compelled to conclude that the result in

Clemons was dictated by precedent when precedent (Stephens)

expressly left the issue undecided. See Stringer, U.S. at ‘

112 S.Ct. at 1144 (Souter, J., dissenting).

More significant is the Stringer majority’s response to the dis-

sent’s insistence that the result in Clemons was not dictated by

extant case law.

When the weighing process itself has been skewed, only

constitutional harmless-error analysis or reweighing at the

trial or appellate level suffices to guarantee that the defendant

received an individualized sentence. This clear principle

emerges not from any single case, as the dissent would require,

_.. but from our long line of authority setting forth the dual

constitutional criteria of precise and individualized sentencing.

U.S. at , 112 S.Ct. at 1137 (emphasis added). In

Id.

other words, although the result in Clemons was not dictated by a

particular case, Clemons did not announce a new rule because the

result “emerged” from the principle that sentencing must be

“precise and individualized.” We think this is a less restrictive

28a

procedurally defaulted on his challenges to the applica-

tion of the statutory vileness factor because the Supreme

Court of Virginia found these claims procedurally de-

standard than that employed in Graham (and endorsed by Judge

Luttig) and consequently we disagree with Judge Luttig’s position

that Stringer was a run-of-the-mill Teague case.

Moving on to the relationship between Penry and Graham, we are

not persuaded by how Judge Luttig has reconciied the two cases.

The cases are distinguishable: Penry involved the application of a

pre-existing rule to a new set of facts, whereas Graham involved a

petitioner seeking the benefit of a brand new rule of law, i.e., an

extension of a pre-existing rule. Specifically, in Penry the Court

applied to Penry’s facts the preexisting rule set forth in the Jurek/

Lockett/Eddings line of cases—relevant mitigating evidence must

not be placed beyond the effective reach of the sentencer. However,

as Judge Luttig observes, Graham’s evidence was not placed beyond

the sentencer’s reach. See post, at 910-11 (“Penry’s jury was not,

but Graham’s was, permitted to consider mitigating evidence as

such. .. .”). Graham argued that under the Texas scheme a

defendant is entitled to special instructions whenever he can offer

mitigating evidence that has some arguable relevance beyond

Texas’s “special issues.” See id. at 911 n. 4 (“Vacating Graham’s

death sentence, by contrast, would have required a holding that

Texas could not channel the effect of a defendant’s mitigating

evidence at all.”). Graham thus sought more than the application

of a pre-existing rule; he sought an extension of the Jurek/Lockett/

Eddings line of cases (and thus sought the benefit of a whole

new rule).

Of course, as Judge Luttig observes, see id. at 909, Graham

thought he sought merely the application of a pre-existing rule.

But at best, what Graham actually sought was the application of

pre-existing principles (those underlying the Jurek/Lockett/

Eddings line of cases). In short, Graham’s problem was that he

invoked a pre-existing rule at too high a level of generality. As

Justice Souter has observed:

The crux of the analysis when Teague is invoked . .-. is

identification of the rule on which the claim for habeas relief

depends. To survive Teague, it must be . . . specific enough

to dictate the rule on which the conviction may be held to be

unlawful. . . . [PJassing on its requisite specificity calls for

analytical care.

West, U.S. at ——, 112 S.Ct. at 2501 (Souter, J., concurring

in the judgment). Because it is our legal traditicn that develop-

29a

faulted. See Coleman v. Thompson, 501 U.S. 722, 111

S.Ct. 2546, 115 L.Ed.2d 640 (1991) (generally, when

a habeas petitioner has defaulted on a federal claim in

ments in the law be guided by extant principles, virtually every

habeas petitioner will contend that a general principle, e.g., that

the death penalty not be “arbitrarily and capriciously” inflicted,

dictates the rule he seeks. Teague would be meaningless if habeas

petitioners could benefit from the application of pre-existing rules

at too high a level of generality. Sawyer, 497 U.S. at 236, 110

S.Ct. at 2828.

Judge Luttig in essence charges us with applying Godfrey at too

high a level of generality. Under his reading of Godfrey, a jury

instruction on an aggravating factor can be reviewed on habeas in

only two situations: (1) where, as in Godfrey, a jury is given the

bare terms of-a “vague” aggravating factor, and (2) where, as in

Cartwright, a jury is given a limiting construction which gives

“ ‘no more guidance than did the statute in Godfrey,” post, at 915

(quoting Stringer, U.S. at ——, 112 S.Ct. at 1135), i.e., where

the “instruction provide[s] no limitation whatsoever on the jury’s

discretion,” id. But how do we know whether a limiting instruction

provides “no more guidance” or “no limitation whatsoever”? To

find out, we must review the factor or limiting construction to

assess its constitutional sufficiency. See supra note 9 (discussing

Walton v. Arizona (non-habeas case) and Lewis v. Jeffers (habeas

case)). Yet Judge Luttig takes us to task for conducting this

“fyll merits review,” post, at 904. Put another way, Judge Luttig

seems to say that review of the constitutional sufficiency of a

limiting construction (i.e., a review on the merits) is not Teague-

barred if the limiting construction is constitutionally insufficient,

which we would not know unless we undertook a review on the

merits, which Judge Luttig says we are barred from doing.

We are no less intrigued by Judge Luttig’s conclusion that

Turner’s ineffective assistance claims are not Teague-barred. Judge

Luttig vehemently stresses that “Teague bars consideration of a

claim where the defendant could not even prevail on the merits,”

id. at 911, and that “avoidance of a new rule is possible only

where the prior precedent resolves the case in the petitioner’s

favor,” id. at 911. Yet he concludes that Teague does not bar

consideration of Turner’s ineffective assistance claims, see id. at

84 n. 14, despite the fact that Turner does not prevail on the

30a

state court pursuant to an independent and adequate

state procedural rule, federai review of the defaulted

claim is barred); Harris v. Reed, 489 U.S. 255, 109 S.Ct.

merits of these claims. Put another way, Turner’s constitutional

challenges to his lawyers’ performance are not Teague-barred even

though reasonable jurists would not have felt compelled to con-

clude that Turner’s lawyers were constitutionally deficient. (For

example, reasonable jurists would not have felt compelled to con-

clude that it was necessarily ineffective assistance to inform a

venire that a petitioner was previously sentenced to death by a

different jury for the same crime.)

In the final analysis, and contrary to Judge Luttig’s suggestions,

we have not “alterfed] for this circuit the Supreme Court’s ‘new

rule’ jurisprudence,” id. at 904, nor have we “disregard[ed] .. .

Supreme Court authority,” id. at 905. At bottom, we disagree

with Judge Luttig that there is an “unambiguous directive,” id. at

910, in the Supreme Court’s new rule cases. Most of the Court’s

new rule cases were five-to-four decisions with shifting majorities.

Indeed, in Wright v. West, Justice O’Connor, the author of the

Teague plurality opinion, issued an opinion (joined by two Jus-

tices) in which she atter pted to define what constitutes a new

rule, see West, U.S. at , 112 S.Ct. at 2497 (O’Conner, J.,

concurring in the judgment); Justice Thomas’s opinion (also

joined by two Justices) “disagree[d], however, with Justice O’Con-

nor’s definition of what constitutes a ‘new rule’ for Teague pur-

poses.” Id. —— U.S. at ——— n. 8, 112 S.Ct. at 2490 n. 8 (plurality

opinion).

We have not created a new standard today. We hold simply that

the application of a preexisting normative rule, a rule which by

its nature contemplates prospective application, generally is not

Teague-barred. Hence our dictum that Godfrey “dictates Turner’s

challenge,” supra p. 881; cf. supra p. 882, for the challenge is

simply the application of the preexisting rule. And notwithstand-

ing Judge Luttig’s parade of horribles, our decision will not

“render reviewable on habeas essentially every claim,” post, at

908. Teague controls when a petitioner does not seek the applica-

tion of an old rule or when a petitioner seeks to apply an old rule

in a manner not dictated by precedent, “thereby extending the

precedent.” Stringer, U.S. at , 112 S.Ct. at 1135. We,

to be sure, do “recognize[{ ] the inevitable difficulties that will

arise in attempting to determine whether a particular decision has

3la

1038, 103 L.Ed.2d 308 (1989). Second, it says he pro-

cedurally defaulted on one of his ineffective assistance

claims (challenging counsel’s failure to put on mitigating

evidence described in the opening statement) because it

was never raised in the state courts. See Bassette v.

Thompson, 915 F.2d 932, 936-37 (4th Cir.1990) (in-

effective assistance claims not raised on state habeas are

procedurally defaulted) (citing Teague, 489 U.S. 297-99,

109 S.Ct. at 1068-69), cert. denied, 499 U.S. 982, 111

S.Ct. 1639, 113 L.Ed.2d 734 (1991). We will address

the Commonwealth’s procedural default arguments in

turn and ultimately conclude that Turner has not proce-

durally defaulted on these claims.

A. Challenges to the Application of the Vileness Factor

Turner challenges the application of the vileness factor

in several respects. In overlapping arguments, he says

(1) the limiting definitions (instructions) for “aggravated

battery” and “depravity of mind” were constitutionally

insufficient, (2) the Supreme Court of Virginia’s direct

review of his sentence was inadequate, (3) the facts of

the Smith murder do not support the vileness factor, and

(4) the Supreme Court of Virginia generally does not

provide capital defendants with meaningful appellate re-

view. These various allegations were scattered through-

really announced a new rule at all or whether it has simply applied

a well-established constitutional principle to govern a case which

is closely analogous to those which have been previously considered

in the prior case law.” Penry, 492 U.S. at 314, 109 S.Ct. at 2944

(internal quotation marks omitted) (quoting Mackey v. United

States, 401 U.S. 667, 695, 91 S.Ct. 1160, 1181, 28 L.Ed.2d 404

(1971) (Harlan, J., concurring in judgments in part and dissenting

in part), in turn quoting Desist v. United States, 394 U.S. 244,

263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) (Harlan, J., dis-

senting) ); see also Graham, U.S. at , 113 S.Ct. at 918

(Souter, J., dissenting) (“it can be a difficult question whether a

particular holding presents simply a new setting for an old rule,

or announces a new one”). This difficulty, however, must be

attributed to Teague and its progeny, not to us.

32a

out claims VII and XIV of Turner’s state habeas

petition.” The Supreme Court of Virginia, on collateral

review, held that these claims were procedurally defaulted,

Stating:

Applying the rule in Slayton v. Parrigan, 215 Va.

27, 205 S.E.2d 680 (1974) ... to the extent allega-

tions numbered VII, VIII, XIV, XV, and XVI in

his petition for writ of habeas corpus advance mat-

ters not asserted on direct appeal; and, applying the

rule in Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271

(1970), to allegations [VII, VIII, XIV, XV, and

XVI}... to the extent that they advance matters

asserted on direct appeal, the petition for appeal is

denied for reasons of procedural default.

Turner v. Williams, No. 901335 (Va. Apr. 30, 1991).

Slayton generally says that claims that could have been

raised on direct appeal, but were not, cannot be raised

on state collateral review. Slayton, 205 S.E.2d at 682.

Hawks has been read to say that claims raised and de-

cided against petitioner on direct review cannot be raised

on state habeas. See Hawks, 175 S.E.2d at 274. Thus,

the Supreme Court of Virginia dismissed these claims

either because they were raised and decided on direct

appeal (Hawks) or because they were not raised on di-

rect appeal (Slayton).

Slayton is a valid procedural default rule. Smith v.

Murray, 477 U.S. 527, 533-39, 106 S.Ct. 2661, 2665-

69, 91 L.Ed.2d 434 (1986). Hawks, however, is not a

true procedural default rule; rather, it is more in the na-

ture of a collateral estoppel rule. Hawks cannot prevent

federal habeas review of federal constitutional claims

17In claim VII he argued that there was an insufficient factual

basis to find depravity of mind or an aggravated battery. In claim

XIV he argued that the vileness factor was vague on its face, that

the limiting definitions of “aggravated battery” and “depravity of

mind” also were vague, and that the Virginia Supreme Court’s

appellate review was deficient both generally and in his case.

33a

properly raised on direct appeal. See Yist v. Nunne-

maker, 501 U.S. 797, 803-07, 111 S.Ct. 2590, 2595-96,

115 L.Ed.2d 706 (1991). Thus, we must ascertain

whether Turner raised on direct appeal the aforemen-

tioned challenges to the application of the vileness factor.

If he did, he is not procedurally barred from raising them

here.

In his brief to the Supreme Court of Virginia on direct

appeal, Turner argued that the murder of Smith was not

vile, i.e., that the murder involved neither depravity of

mind nor an aggravated battery. He also argued that

imposition of the death sentence for the murder of Smith

would be disproportionate to the crime when viewed in

comparison to other cases where the death sentence was

predicated solely on the vileness factor. Moreover, he

_ attacked the vileness factor (and the Virginia death pen-

alty statute) on its face as being unconstitutionally vague

and overbroad.

As for the sufficiency of the limiting definitions given

to his jury, Turner’s brief on direct appeal contained a

subsection entitled: “This Court must adopt stricter

standards for defining and applying the vileness aggra-

vating circumstance.” JA 553. In this subsection, Turner

argued: |

This Court should make clear that an aggravated

battery must be one which, qualitatively and quan-

titatively, is much more vile than the minimum nec-

essary to accomplish the act of murder, and that

“depravity of mind” is a degree of moral turpitude

and psychical debasement that far surpasses that in-

herent in the definition of legal malice and premedi-

tation.

JA 553-54 (emphases in original). The highlighted por-

tions above represented his suggested modifications to the

limiting definitions given to his jury; without those modi-

fications, he argued, the instructions were constitutionally

deficient. See Turner, 364 S.E.2d at 488 n. 2 (“Turner

34a

argues that we must apply stricter standards for deter-

mining ‘vileness’ or else face the risk of having the pres-

ent standards declared unconstitutional. We reject this

argument.”).

Finally, as for Turner’s attack on Virginia’s system of

appellate review generally, Turner listed as one of ten

questions presented on direct appeal: “3. Does this

Court provide adequate appellate review of death sen-

tences?” JA 544. Listed as an assignment of error was

an allegation “[t]hat the failure of the Virginia courts

to afford adequate appellate review of death sentences

means that death sentences are being imposed in Virginia

in an arbitrary and capricious manner, in violation of the

Eighth and Fourteenth Amendments to the United States

Constitution.” JA 545."*

In sum, Turner’s various challenges to the application

of the vileness factor were raised on direct appeal and

therefore the Supreme Court of Virginia (on collateral

review) must have dismissed these claims under Hawks,

not Slayton. Accordingly, because Hawks does not bar

us from reviewing the merits of federal constitutional

claims properly raised on direct appeal, we reject the

Commonwealth’s argument that Turner is procedurally

barred from raising these claims on federal habeas.

B. Ineffective Assistance Challenge

We also reject the Commonwealth’s argument that

Turner procedurally defaulted on his ineffective assist-

ance claim arising from counsel’s failure to put on the

18 Of course, Turner’s challenge to the appellate review of his

own sentence could not have been raised on direct appeal, because

appellate review had yet to take place (though he did argue in his

brief on direct appeal: “If this Court fails to reverse the jury’s

verdict, the Court will have failed to provide adequate appellate

review of the propriety of the death sentence.” JA 547). This

claim was raised in his state habeas petition and in his habeas

Petition for Appeal to the Supreme Court of Virginia and there-

fore was properly exhausted.

35a

mitigating evidence described in the opening statement.

Turner’s state habeas petition alleged that “[cJounsel

failed to present mitigating evidence . . . despite defense

counsel’s opening statement to the jury that several wii-

nesses would testify on Mr. Turner’s behalf.” JA 591.

The state habeas court held an evidentiary hearing in

part to address counsel’s failure to put on mitigating

evidence. After the hearing, Turner submitted to the

court proposed findings of fact and conclusions of law,

wherein he argued that the “broken promises made by

Mr. Snook to the jury in his opening statement” were

“independently prejudicial.” JA 1315. He continued:

“We cannot but conclude that to promise even a

condensed recital of such powerful evidence, and

then not produce it, could not be disregarded as

harmless. We find it prejudicial as [a] matter of

law.” Anderson v. Butler, 858 F.2d 16, 19 (1st

Cir.1988) (emphasis added). In that case, the Court

of Appeals reversed the district court’s denial of

habeas corpus based on facts nearly identical to

those here.

Id.; see also JA 1397. The Commonwealth responded to

this argument in its proposed findings of fact and con-

clusions of law. JA 1432 (4 26). Then, in his (habeas)

Petition For Appeal to the Supreme Court of Virginia,

Turner argued:

Even if counsel knew that he could keep his prom-

ises (as Mr. Snook could not have known), it still

would be “prejudicial as [a] matter of law” to

“promise even a condensed recital of such powerful

evidence, and then not produce it.” Anderson v.

Butler, 858 F.2d 16, 19 (1st Cir.1988).

JA 1595-96 (footnotes omitted). In an accompanying

footnote, Turner noted that “[o]ther courts have feund

counsel ineffective based in part on the failure to deliver

evidence promised in opening statements.” JA 1596.

36a

We conclude that Turner has fairly presented this in-

effective assistance claim in the state collateral proceed-

ings and therefore hold that he is not barred from raising

it on federal habeas. Having concluded that Turner’s

claims are not procedurally barred, we now turn to the

merits.

As noted above, Turner raises numerous challenges to

the application of the vileness factor, several of which

are interrelated.

He first says the jury instructions inadequately defined

the vileness factor. More particularly, he says that the

limiting definitions for “aggravated battery” and “deprav-

ity of mind” were constitutionally insufficient. The jury

was instructed that “an aggravated battery is a battery

which qualitatively and quantitatively is more culpable

than the minimum necessary to accomplish an act of

murder.” JA 517-P. The jury also was instructed that

“depravity of mind is a degree of moral turpitude and

and [sic] psychical debasement surpassing that inherent

in the definition of ordinary legal malice and premedita-

tion.” JA 517-Q. The court further defined malice and

premeditation. Turner says that these definitions are in-

comprehensible and that they fail to narrow the class of

persons eligible for the death penalty. See Arave v.

Creech, US. ; , 113 S.Ct. 1534, 1542,

123 L.Ed.2d 188 (1993) (the language of a limiting

construction must be determinate and “must ‘genuinely

narrow the class of persons eligible for the death penalty’ ”

(quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct.

2733, 2742, 77 L.Ed.2d 235 (1983))).

We have on several occasions upheld limiting defini-

tions that were identical or virtually identical to those

challenged here. See, e.g., Jones, 976 F.2d at 174-75

(holding that identical limiting definitions of depravity

of mind and aggravated battery “were specific and pro-

vided adequate guidance to the jury” as required by

37a

Godfrey). Recognizing that “the proper degree of defini-

tion of an aggravating factor of this nature is not sus-

ceptible of mathematical precision,” Walton, 497 USS.

at 655, 110 S.Ct. at 3058, we believe the limiting defini-

tions here are sufficiently clear and objective. And, as

we have previously observed, the limiting definitions ade-

quately narrow the class of persons eligible to receive

the death penalty because a juror of ordinary sensibility

would not find that all murders involve depravity of mind

Or an aggravated battery. “The instructions clearly di-

rect the jury away from that result by requiring that some-

thing extra be present, i.e., either force greater ‘than the

minimum necessary to accomplish an act of murder’ or

‘a degree of psychical debasement surpassing that inher-

ent in the definition of ordinary legal malice and pre-

meditation.’” Jones, 976 F.2d at 174-75. We therefore

reaffirm our prior holdings, which we think are amply

supported by the Supreme Court’s recent decision in

Creech.

In Creech, the death sentence was based in part on

Idaho’s utter disregard factor: “[b]y the murder, or cir-

cumstances surrounding its commission, the defendant

exhibited utter disregard for human life.” US. at

, 113 S.Ct. at 1538 (quoting Idaho Code § 19-2515

(g)(6) (1987)). Idaho had adopted a limiting construc-

tion, whereby the utter disregard factor was “meant to

be reflective of acts or circumstances surrounding the

crime which exhibit the highest, the utmost, callous dis-

regard for human life, i.e., the cold-blooded, pitiless

Slayer.” Id. at , 113 S.Ct. at 1539. The Supreme

Court held that this construction satisfied constitutional

requirements. Jd. at , 113 S.Ct. at 1541. Surely

the limiting construction applied in Turner’s case is as

clear and objective as, and satisfies the narrowing require-

ment as well as, the construction upheld in Creech. See

also Walton, 497 U.S. at 654, 110 S.Ct. at 3057-58 (up-

holding Arizona court’s limiting construction which said

a murder was “especially cruel” if “the perpetrator in-

38a

flicts mental anguish or physical abuse before the vic-

tim’s death,” with mental anguish including “a victim’s

uncertainty as to his ultimate fate”) (internal quotation

marks omitted); compare Shell v. Mississippi, 554 So.2d

887, 905-06 (Miss.1989), rev'd per curiam, 498 U.S. 1,

111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (holding uncon-

Stitutional a limiting construction of Mississippi’s heinous-

ness factor); Cartwright, 822 F.2d at 1488, aff'd, 486

U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)

(holding unconstitutional a limiting construction of Okla-

homa’s heinousness factor ).’”

Turner also claims that the Supreme Court of Virginia’s

appellate review of his sentence was inadequate because

that court “allowed the death sentence to stand even

though . . . the crime was less culpable than the conduct

in other death penalty cases or in many cases in which

the defendant was sentenced to life imprisonment.” Ap-

pellant’s Br. at 50. He further “argues that the Virginia

system does not provide capital defendants meaningful

appellate review, even in cases in which the results appear

arbitrary.” Jd. at 57. However, because we have held

that the Virginia courts applied a constitutionally suffi-

cient limiting construction for the vileness factor in

Turner’s case, it is clear from the Supreme Court’s cases

that these additional claims carry no constitutional weight.

For instance, in Walton, supra, the Supreme Court up-

held the state court’s limiting construction and then dis-

posed of arguments similar to those raised by Turner

here:

Walton nevertheless contends that the heinous,

cruel, or depraved factor has been applied in an ar-

bitrary manner and, as applied, does not distinguish

19 According to Turner, Godfrey says that an eggravated battery

requires “evidence of serious physical abuse of the victim before

death.” Appellant’s Br. at 48 (quoting Godfrey, 446 U.S. at 431,

100 S.Ct. 1759 (plurality opinion) ). We disagree. We agree instead

with the district court below that Turner misreads Justice Stewart's

plurality opinion. See Turner, 812 F.Supp. at 1423 n. 31.

39a

his case from cases in which the death sentence has

not been imposed. In effect Walton challenges the

proportionality review of the Arizona Supreme Court

as erroneous and asks us to overturn it. This we

decline to do, for we have just concluded that the

challenged factor has been construed by the Arizona

courts in a manner that furnishes sufficient guidance

to the sentencer. This being so, proportionality re-

view is not constitutionally required, and we “law-

fully may presume that [Walton’s] death sentence

was not ‘wantonly and freakishly’ imposed—and thus

that the sentence is not disproportionate within any

recognized meaning of the Eighth Amendment.”

497 U.S. at 655-56, 110 S.Ct. at 3058-59 (quoting

McCleskey v. Kemp, 481 U.S. 279, 306, 308, 107 S.Ct.

1756, 1774-75, 1775, 95 L.Ed.2d 262 (1987)); see also

Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111

L.Ed.2d 606 (1990) (“Our decision in Walton thus

makes clear that if a State has adopted a constitutionally

narrow construction of a facially vague aggravating cir-

cumstance, and if the State has applied that construction

to the facts of the particular case, then the ‘fundamental

constitutional requirement’ of ‘channeling and limiting

. . . the sentencer’s discretion in imposing the death pen-

alty,, has been satisfied.” (citation omitted) (quoting

Cartwright, 486 U.S. at 362, 108 S.Ct. at 1858));

Creech, U.S. at , 113 S.Ct. at 1544 (“our

decisions do not authorize review of state court cases to

determine whether a limiting construction has been ap-

plied consistently” ).

In any event, the Supreme Court of Virginia’s review

of Turner’s sentence was adequate. The court found that

the evidence was sufficient to trigger the vileness factor.

See Turner, 364 S.E.2d at 488-89. Moreover, pursuant

to Virginia law, the court determined that tne sentence

(1) was not “imposed under the influence of passion,

prejudice or any other arbitrary factor,” and (2) was not

“excessive or disproportionate to the penalty imposed in

40a

similar cases, considering both the crime and the defend-

ant.” Id. at 490 (quoting Va.Code Ann. § 17-110.1(C)

(Michie 1992)). The court conducted a proportionality

review based on the records of all Virginia capital felony

cases and found that Turner’s murder was “just as brutal”

as the murders in other cases where the death sentence

was imposed. /d. The court concluded “that juries in

this jurisdiction generally approve of the death penalty

for offenses comparable to the murder committed by

Turner.” /d. at 491 (citing Barnes v. Commonwealth,

234 Va. 130, 360 S.E.2d 196, 203 (1987) (“vileness”

found in murder of store employee shot three times during

struggle with robber; Barnes held “that a killing inflicted

by multiple gunshot wounds may constitute an ‘aggravated

battery’ . . . where there is an appreciable lapse of time

between the first shot and the last, and where death does

not result instantaneously from the first”), cert. denied,

484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988) ).

In short, the Supreme Court of Virginia “plainly under-

took its proportionality review in good faith,” and “[t]he

Constitution does not require us to look behind [its] con-

clusion.” Walton, 497 U.S. at 656, 110 S.Ct. at 3058.

Turner’s general attack on the Virginia system of ap-

pellate review is equally unpersuasive; the Virginia system

does provide for meaningful review and its results are

fairly consistent.”

Turner's final claim is that, even if the vileness factor

has been constitutionally defined, the facts of his case do

not fit within that factor, i.e., the vileness factor does not

apply to him. A challenge to a state court’s application

2°0In support of his argument that the Virginia Supreme Court

arbitrarily applied the vileness factor in his case, Turner provides

a litany of cites to Virginia death penalty cases which, according

to him, involved murders with “significantly greater brutality” than

his. Appellant’s Br. at 54. But these cases go to demonstrate that

Virginia consistently reserves the vileness factor for the most

gruesome facts, thereby deflating his argument that Virginia

imposes the death penalty in an arbitrary and capricious manner.

4la

of an aggravating factor, however, raises primarily a ques-

tion of state law: “[{F]ederal habeas review of a state

court’s application of a constitutionally narrowed aggra-

vating circumstance is limited, at most, to determining

whether the state court’s finding was so arbitrary or capri-

cious as to constitute an independent due process or

Eighth Amendment violation.” Jeffers, 497 U.S. at 780,

110 S.Ct. at 3102. “A state court’s finding of an ag-

gravating circumstance in a particular case . . . is arbi-

trary or capricious if and only if no reasonable sentencer

could have so concluded.” Jd. at 783, 110 S.Ct. at 3103.

The “standard of review is the ‘rational factfinder’ stand-

ard established in Jackson v. Virginia.” Id. at 781, 110

S.Ct. at 3101-02; see also Creech, US. at

113 S.Ct. at 1544; Richmond v. Lewis, U.S. ——,

——, 113 S.Ct. 528, 536, 121 L.Ed.2d 411 (1992).

We conclude that a rational sentencer could have found

that the murder of Smith involved either depravity of

mind or an aggravated battery. Turner emphasizes that

his murder cannot possibly be considered an aggravated

battery because he rapidly fired two successive shots into

Smith’s chest, either one of which may have been fatal.

However, Turner shot Smith in the head before he fired

the two shots into Smith’s chest. And, between the shot

to the head and the shots to the chest, enough time elapsed

for Officer Bain to talk to Turner and for two customers

to escape from the store. As the Supreme Court of Vir-

ginia emphasized on direct review in Turner I]: “After

being wounded [in the head] by Turner, Smith slumped

helplessly behind the counter. Unlike Godfrey’s victims,

Smith did not die instantaneously from a single discharge

of a firearm.” Turner, 273 S.E.2d at 45. Thus, a rational

factfinder could have found an aggravated battery here

and therefore we reaffirm our conclusion in Turner I,

where “[w]e reject{ed] Turner’s contention that his crime

was not so vile as to justify the imposition of death.”

Turner, 753 F.2d at 353.

42a

In sum, we hold that the vileness factor was constitu-

tionally applied in Turner’s case.

Turner contends that his appointed lawyers, J. Lloyd

Snook, III and Thomas L. Woodward, Jr., rendered in-

effective assistance.*’ He challenges Snook’s assistance in

six respects: (1) his investigation of mitigating evidence,

(2) his supervision and preparation of the mental health

expert, (3) his failure to interview prosecution witnesses,

(4) his informing the venire that a prior jury sentenced

Turner to death for the same crime, (5) his failure to

present any mitigating evidence, and (6) his failure to put

on the evidence described in the opening statement.

We evaluate ineffective assistance claims under the

standard set forth in Strickland v. Washington, supra.

Under Strickland, an ineffective assistance claim has two

components. First, defendant must show that counsel’s

performance was deficient, i.e., “that counsel’s representa-

tion fell below an objective standard of reasonableness.”

Id. at 687-88, 104 S.Ct. at 2064-65. Second, defendant

must show that he was prejudiced by the deficient per-

formance. Id. at 687, 104 S.Ct. at 2064. When a de-

fendant challenges a death sentence, prejudice is estab-

lished when “there is a reasonable probability that, absent

[counsel’s] errors, the sentencer—including an appellate

court, to the extent it independently reweighs the evidence

—would have concluded that the balance of aggravating

and mitigating circumstances did not warrant death.” /d.

at 695, 104 S.Ct. at 2069. “A reasonable probability is

a probability sufficient to undermine confidence in the

outcome.” Jd. at 694, 104 S.Ct. at 2068. As explained

21 Woodward served in a !imited capacity as Snook’s co-counsel.

Turner’s challenges are directed in large measure against Snook.

In discussing Turner’s claims, we will refer to Snook unless other-

wise appropriate.

43a

below, we conclude that Turner has not carried his burden

under Strickland.”

A. Pretrial Preparation

1. Investigation of Mitigating Evidence

Turner argues that Snook inadequately investigated, or

failed to investigate, certain mitigating evidence, namely

evidence relating to (a) his background and (b) his role

in a 1984 death row escape from Mecklenburg Correc-

tional Center. His allegations focus on Snook’s perform-

ance during the five-month period between Snook’s July

31, 1986, appointment and the January 1987 resentencing

proceeding. Viewing this period in isolation, we agree

Snook spent relatively little time investigating and devel-

oping mitigating evidence. However, we cannot ignore

the fact that he was not a blank slate when he was ap-

pointed in July 1986. Quite the contrary. Snook had

been working on Turner’s case since 1980, when he was

appointed to represent Turner on direct appeal in Turner

I. Snook represented him in the Turner I state and federal

habeas proceedings, including Turner’s victory in the

United States Supreme Court in Turner v. Murray, supra.

By the time of the resentencing hearing, Snook had de-

voted approximately 1,000 hours to Turner’s case, includ-

ing approximately 250 hours after the July 1986 appoint-

ment. (Woodward, moreover, began working on Turner’s

22 The state habeas court held an evidentiary hearing (the “state

habeas hearing”) on Turner’s ineffective assistance claims. Al-

though a state court’s findings of historical fact are presumed

correct under 28 U.S.C. § 2254(d), see supra note 14, Turner

argues that we should not defer to the state habeas court’s findings

here because the court adopted verbatim the Commonwealth’s pro-

posed findings of fact. Providing examples, he further maintains

that the record does not support many of these findings. We think

these examples either are insignificant or involve conclusions drawn

from historical facts. In any event, we have conducted an inde-

pendent review of the record, and we are satisfied that counsel

rendered effective assistance.

44a

case in 1979, when he was appointed to serve as co-

counsel in the Turner I murder trial and capital sentencing

proceeding. )

Snook thus was knowledgable about Turner’s case when

he was reappointed in 1986. More importantly, Snook

was aware of the mitigating evidence that had been de-

loped for the Turner I capital sentencing proceeding and

related collateral proceedings. At the original sentencing

proceeding, for instance, several mitigation witnesses testi-

fied, including a psychiatrist and Turner’s mother, aunt

and first cousin. More significant was the evidence devel-

oped during the federal habeas phase of Turner I. There,

ironically, Snook attempted to show that Turner’s trial

counsel rendered ineffective assistance for inadequately

investigating mitigating evidence. In order to advance

that claim, Snook necessarily had to develop additional

mitigating evidence. He delegated that task to Marie

Deans, the Executive Director of the Virginia Coalition

on Jails and Prisons (an organization that, inter alia, as-

sisted attorneys handling capital trials and appeals).

Deans had assisted with many capital cases.

Deans interviewed by telephone (on multiple occa-

sions) Turner’s sister and uncle, neither of whom testified

at the original sentencing trial. She also interviewed nu-

merous other potential character witnesses. Deans then

prepared reports for Snook that highlighted the results of

her investigation. These reports provided part of the sub-

stance for a motion to alter or amend judgment filed in

federal court in 1984.

Another development in 1984 was Turner’s involve-

ment in the escape of death row inmates from Mecklen-

burg Correctional Center; although Turner did not escape,

he was involved in the planning and execution of the

breakout. Snook had five clients on death row at Meck-

lenburg at the time. Within a week after the escape, he

went to Mecklenburg to conduct an investigation. He

may have spoken with as many as ten guards and inmates

45a

(including Turner) with firsthand knowledge of the es-

cape, and Deans “had talked with a bunch more.” JA

1291. Snook also spoke with officials at the Attorney

General’s Office and the Governor’s Office, the head of

the Corrections Board, and the Director of the National

Prison Project of the American Civil Liberties Union, all

of whom were involved in the investigation of the incident.

Furthermore, he was present when Turner was interviewed

by the police shortly after the incident. As a result of

these efforts, Snook had in his possession prior to resen-

tencing a comprehensive file relating to the 1984 Mecklen-

burg escape, and he was aware of potential mitigating and

aggravating testimony.

In sum, by the time of his appointment in July 1986,

Snook generally was familiar with Turner’s potential

mitigating evidence. With this background in mind, we

address Turner’s challenge to the adequacy of Snook’s

pretrial investigation.

—

a. Background evidence

Turner first challenges Snook’s investigation of evi-

dence relating to his early and formative years, alleging

that Snook (i) failed to conduct face-to-face interviews or

meet personally with potential defense witnesses prior to

the resentencing proceeding (they met after the proceed-

ing was underway), (ii) failed to contact other persons

who might have had knowledge about Turner’s early and

formative years, and (iii) failed to conduct an adequate

interview of Turner.

As for Snook’s failure to conduct face-to-face (as op-

posed to telephone) interviews or meet personally with

defense witnesses prior to the resentencing proceeding,

Snook did not deem such meetings necessary because he

generally was familiar with the substance of what these

witnesses would say. For instance, he had reviewed a

number of times the potentially mitigating evidence that

Deans had collected. In addition, he had telephoned

46a

potential defense witnesses the month before the resentenc-

ing proceeding. Although face-to-face meetings with wit-

nesses may be the more desirable approach, we cannot

say that Snook’s performance was unreasonable. See

Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114,

3126, 97 L.Ed.2d 638 (1987) (“[Counsel] could well

have made a more thorough investigation than he did.

Nevertheless, in considering claims of ineffective assist-

ance of counsel, ‘[w]e address not what is prudent or

appropriate, but only what is constitutionally compelled.’ ”

(quoting United States v. Cronic, 466 U.S. 648, 665

n. 38, 104 S.Ct. 2039, 2050 n. 38, 80 L.Ed.2d 657

(1984))). Moreover, Turner fails to explain what addi-

tional evidence would have been obtained from face-

to-face interviews or meetings. See Bassette, 915 F.2d

at 940-41 (when challenging the adequacy of counsel’s

investigation, defendant must show what an “adequate”

investigation would have uncovered).

As for Snook’s failure to contact more people familiar

with Turner’s background, counsel’s duty to investigate is

limited to a reasonable investigation. Strickland, 466

U.S. at 691, 104 S.Ct. at 2066. “Particularly when

evaluating decisions not to investigate further, we must

regard counsel’s choices with an eye for ‘reasonableness

in all circumstances, applying a heavy measure of defer-

ence to counsel’s judgments.’” Bunch v. Thompson, 949

F.2d 1354, 1363 (4th Cir. 1991) (quoting Strickland,

466 US. at 691, 104 S.Ct. at 2066), cert. denied,

US. , 112 S.Ct. 3056, 120 L.Ed.2d 922 (1992).

As noted above, the list of individuals previously ap-

proached at one time or another for background informa-

tion included Turner’s mother (his father was deceased),

his sister, his aunt, his uncle and his first cousin. It was

not unreasonable for Snook to think he (and Deans) had

identified and contacted those individuals most likely to

possess potentially mitigating information.

Moreover, Turner has not demonstrated that he was

prejudiced by Snook’s failure to contact other individuals.

47a

He presents affidavits of several unapproached persons

who knew about Turner’s parents or the conditions of

Turner’s childhood, but the substance of these affidavits

is cumulative of that which Snook already knew; for

example, Turner’s family was poor and his parents abused

him. See Jones v. Murray, 947 F.2d 1106, 1113 (4th

Cir.1991), cert. denied, U.S. ——, 112 S.Ct. 1591,

118 L.Ed.2d 308 (1992); Bunch, 949 F.2d at 1365.

And, to the extent Turner generally claims that additional

sources should have been investigated (e.g., neighbors,

teachers, friends), “he does not advise us of what an

adequate investigation would have revealed or what these

witnesses might have said, if they had been called to

testify.” Bassette, 915 F.2d at 940-41.

Finally, as for Snook’s alleged failure to have a “com-

prehensive” conversation with Turner about his back-

ground, we note that, although Snook testified that he

did not recall having a conversation with Turner “starting

off with childhood and going all the way through the

present,” he and Turner “talked a fair amount,” discussing

“bits and pieces” of Turner’s life history “from time to

time.” JA 755. Indeed, between the time of his original

appointment in 1980 and the resentencing proceeding,

Snook visited Turner a number of times and spoke with

him by phone an average of once per month. They

specifically discussed Turner’s history while preparing his

affidavit for filing in federal court in 1984. Moreover,

Woodward had previously interviewed Turner at length.

And, Deans (to whom Snook had assigned the task of

gathering mitigating evidence) spoke with Turner in per-

son (at Mecklenburg) about three times per year and by

telephone about once or twice per month over a period of

years. In view of the frequency of direct and indirect

client contact, we decline to hold that Snook inadequately .

interviewed Turner. Nor has Turner shown how he was

prejudiced, for he fails to advise us what additional in-

formation would have been uncovered by a “comprehen-

sive” interview.

sah we

48a

In sum, although Snook “could have perhaps investi-

gated the facts of the case more thoroughly and with

more diligence,” Williams v. Dixon, 961 F.2d 448, 451

(4th Cir.), cert. denied, US. » 813 Se. 310,

121 L.Ed.2d 445 (1992), and perhaps could have pre-

pared more thoroughly for the resentencing proceeding,

Turner has not shown that Snook’s performance fell below

an objective standard of reasonableness. In fact, Snook’s

opening statement to the jury, which described Turner’s

background, belies that contention. Even Turner’s expert

witness (Dr. Link) at the state habeas hearing conceded

that Snook’s opening statement demonstrated familiarity

with Turner’s background.

b. The 1984 Mecklenburg breakout

More readily disposable is Turner’s claim that “[n]o

investigation was undertaken of the 1984 breakout inci-

dent at Mecklenburg or of the constructive role [he]

played in protecting the lives of hostages and other in-

mates when the situation was most tense.” Appellant’s

Br. at 9. As noted above, Snook was well aware of the

facts surrounding, and Turner’s role in, the Mecklenburg

incident. In fact, in 1985 Snook wrote a letter to then-

Governor Robb requesting clemency, wherein he de-

scribed the gratuitous actions taken by Turner during the

escape. Because Snook previously had conducted an in-

vestigation of the incident, it was not unreasonable for

him to find it unnecessary “to go back and track these

people down again. ...” JA 1246.

2. Supervision and Preparation of Mental Health

Expert

In his next attack on Snook’s pretrial performance,

Turner contends that Snook inadequately supervised and

prepared Dr. Fisher, a court-appointed mental health ex-

pert. He emphasizes that, because of Snook’s alleged in-

attentiveness, Dr. Fisher failed to examine him (Turner)

prior to the resentencing proceeding. (Dr. Fisher ex-

49a

amined Turner after the resentencing proceeding was

underway.) Consequently, he says, Dr. Fisher was forced

to base his diagnosis on trial transcripts and prison and

medical records.

To evaluate the reasonableness of Snook’s handling of

Dr. Fisher, we must back up and recognize why Dr.

Fisher was retained. The jury in Turner I had recom-

mended the death penalty after finding that both aggravat-

ing factors, future dangerousness and vileness, were es-

tablished. Snook and Woodward, however, did not think

that the murder of Smith fit within the vileness factor.

They thought that, although the resentencing jury might

add vileness as a second factor if it first found future

dangerousness, it likely would not find vileness in the

absence of future dangerousness. Thus, their strategy was

to convince the jury that Turner no longer represented

a future danger to society. It was for this reason that

Snook sought the appointment of Dr. Fisher.

Dr. Fisher, a clinical forensic psychologist, was an

expert in the field of prison conditions, the classification

of prisoners, and the adaptability of inmates to prison

life. Snook sought a rather narrow opinion from Dr.

Fisher—that Turner’s violent days were behind him and

that he no longer posed a future danger to others. Dr.

Fisher referred to this as the “burnout syndrome,” where-

by one diagnosed as having had an antisocial personality

disorder in his early years begins to manifest less anti-

social behavior by his mid-thirties (Turner was in his

forties).

Significantly, because Snook concluded that Turner’s

mental health was not a viable issue, Snook never in-

tended to have Dr. Fisher provide a conventional psycho-

logical diagnosis or question the validity of any prior

psychological diagnoses. Snook wanted him because he

was a corrections expert; it was irrelevant to Snook that

Dr. Fisher was a psychologist. It thus was not remarkable

that “Dr. Fisher did not know any of the details of

50a

(Turner’s] crime, much less anything about his psychi-

atric condition.” Appellant’s Br. at 25. As for the neces-

sity of a personal examination, Dr. Fisher explained in

his affidavit for the state habeas hearing that, because

future dangerousness was the focus of the resentencing

proceeding, “the existing prisoner and medical files for

Mr. Turner, which were ample, became that much more

important in my evaluation. Once I carefully reviewed

these various materials, one direct meeting with Mr.

Turner was all that became necessary.” JA 1913.

We conclude that Snook’s handling of Dr. Fisher did

not fall below an objective standard of reasonableness.

In addition, we fail to see how Turner could have been

prejudiced by Dr. Fisher’s failure to examine him prior

to trial. When he examined Turner after the resentenc-

ing proceeding was underway, Dr. Fisher discovered noth-

ing new and only confirmed his previously developed con-

clusions.

3. Failure to Interview Prosecution Witnesses

Turner complains that Snook did not interview the

Commonwealth’s witnesses. “‘A claim of failure to in-

terview a witness may sound impressive in the abstract,

but it cannot establish ineffective assistance when the

person’s account is otherwise fairly known to defense

counsel.’” Eggleston v. United States, 798 F.2d 374,

376 (9th Cir. 1986) (quoting United States v. Decoster,

624 F.2d 196, 209 (D.C.Cir.1976) (en banc)); see

Mulligan v. Kemp, 771 F.2d 1436, 1442 (11thCir.1985),

cert. denied, 480 U.S. 911, 107 S.Ct. 1358, 94 L.Ed.2d

529 (1987). Here, from their conversations with the

prosecutor, Snook and Woodward were aware of the sub-

stance of the witnesses’ anticipated testimony. Turner

has not identified additional information that would have

been revealed had counsel interviewed the Commonwealth’s

witnesses. See Eggleston, 798 F.2d at 376; Aldrich v.

Wainwright, 777 F.2d 630, 636-37 (11th Cir.1985),

cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d

297 (1986).

B. Trial Performance

In addition to the above attacks on Snook’s pretrial

preparation, Turner next challenges Snook’s trial perform-

ance in three respects: (1) he informed prospective ju-

rors that a jury previously had sentenced Turner to

death for the murder of Smith, (2) he failed to present

any mitigating evidence, and (3) he failed to put on the

mitigating evidence described in the opening statement

to the jury. |

1. Informing Prospective Jurors of the Prior Sen-

tence

Because the resentencing jury would be told that its

sole function was to determine the penalty for a murder

committed nine years earlier and that it could only choose

between life imprisonment and death, Snook and Wood-

ward were concerned that jurors would deduce that

Turner previously had been sentenced to death for the

murder of Smith; i.e., the jurors would figure out that one

sentenced to life would not appeal and risk a death

sentence.

More importantly, the Commonwealth planned to intro-

duce evidence of Turner’s involvement in the highly pub-

licized 1984 escape, and in a 1985 attempted escape,

from death row at Mecklenburg. Snook reasoned that,

from references to Mecklenburg, death row or the names

of the prisoners who escaped, jurors surely would realize

that Turner was sentenced to death for the murder of

Smith.

Snook and Woodward thus faced a dilemma. They

thought their best alternative was to ask the court to pre-

clude the Commonwealth from mentioning Mecklenburg,

death row or the prisoners who escaped; for example,

“a fictionalized prison in some fictionalized location with

fictionalized co-conspirators.” JA 828. Indeed, this was

the advice of the death penalty experts with whom Snook

consulted. Accordingly, in a pretrial hearing, counsel

52a

urged the court to preclude the Commonwealth from mak-

ing direct or indirect references to Turner’s having been

on death row:

MR. WOODWARD: Let me ask a question now.

. If the defendant elects not to have [the prior

sentence] brought to the attention of the jury, then

would the Commonwealth be- precluded, not that he

attempted to escape from Mecklenburg, but would

he be precluded from indicating that he attempted

to escape from death row?

THE COURT: No, sir. No.

* * * * *

THE COURT: You can’t cover it up, Tom.

*K 2K ce * Bg

MR. WOODWARD: .. . but I’m simply asking

. Is not there a way to present it so that death

row doesn’t come out?

* * * * *

MR. WOODWARD: ... I’m simply asking more as

a matter of inquiry is not there a way . . . without

indicating that people are on death row. Can’t you

go through institutional escape without going through

what people are there for?

THE COURT: No, because I don’t think you can

do it. The Commonwealth is going to try to show

the future dangerousness of the individual. You're

going to try to show that even though this man has

been convicted of capital murder and is being held

in Mecklenburg and this, that, and the other. I

don’t know, it seems to me it makes your case

stronger to tell them it was than if you try to hold

it away from them.

MR. WOODWARD: Again, I’m simply asking.

THE COURT: There’s no way I can see to keep

it from them. If he’s on death row these guards are

53a

going to come in and testify and these other people

are going to come in and testify... .

JA 152-54. The court’s position was clear. Snook de-

cided to inform prospective jurors about the prior death

sentence.

Turner says this decision amounted to ineffective as-

sistance under Strickland. He cites two cases to support

his claim, Arthur v. Bordenkircher, 715 F.2d 118 (4th

Cir. 1983), and Barker v. Commonwealth, 230 Va. 370,

337 S.E.2d 729 (1985). In Arthur, a pre-Strickland case,

we found ineffective assistance where counsel drafted and

consented to the reading of a jury instruction stating

that defendant had been convicted by another jury for

the same murder, but was being retried because his earlier

conviction had been reversed on procedural grounds. Ar-

thur, 715 F.2d at 118-19. In Barker, which was not an

ineffective assistance case, a prospective juror in a re-

trial stated during voir dire that she was aware defendant

had been convicted previously of the crime charged and

that she was aware of his prior sentence. Barker, 337

S.E.2d at 732. The issue before the Supreme Court of

Virginia was whether the trial court erred in refusing

to exclude her for cause. Jd. The court held “that when

a venireman knows of an accused’s previous conviction

of the same offense for which he is being retried, the

venireman cannot qualify as a juror in the new trial.” /d.

at 733.

Barker and Arthur stand for the general proposition

that a defendant’s case is damaged by a juror’s knowledge

that defendant had previously been convicted for the

crime charged. We cannot disagree with that proposition

in the abstract, and the reasoning of those cases should

apply when a juror in a capital sentencing proceeding

learns that a prior jury had imposed the death penalty

for the crime charged. Cf. Burger, 483 U.S. at 788,

107 S.Ct. at 3122-23 (comparing capital sentencing pro-

ceeding to a trial). However, we do not read these cases

54a

to mandate a finding of ineffective assistance as a matter

of law. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at

2065 (noting that no “set of detailed rules for counsel's

conduct can satisfactorily take account of the varicty of

circumstances faced by defense counsel”). These decisions

simply do not address whether it is unreasonable in all

circumstances for counsel to inform a prospective juror

about a prior verdict. In neither case, for instance, was

there any indication that it would be difficult to impanel

a jury with no knowledge of the prior verdict. In this

case, however, Snook (well aware of the Barker de-

cision) reasonably thought it more likely than not that

jurors would learn of the prior death sentence.

The question, then, is whether Snook acted unreason-

ably in the face of his dilemma. He requested that the

court declare inadmissible any references by the Common-

wealth to death row or the prisoners who escaped from

Mecklenburg. The court denied this request. He also

considered using voir dire to strike for cause those pros-

pective jurors with knowledge of the 1984 Mecklenburg

escape, but decided that this would not be practical. This

conclusion was justifiable because, although he might

have been able to impanel a jury that was unaware of

the 1984 escape, the Commonwealth nevertheless could

have mentioned death row. Having exhausted these alter-

natives, Snook decided to inform the venire of the prior

death sentence so he could appear forthcoming and,

more importantly, so he could guage the reaction of each

prospective juror during voir dire. He then could strike

for cause any prospective jurors who indicated that they

would be more inclined to impose the death penalty be-

cause of their knowledge of the prior sentence. Contra

Arthur, 715 F.2d at 119 (jurors, as opposed to prospective

jurors, were informed of the prior conviction).

To that end, Turner says that one prospective juror, Samuel

Lambert, indicated during voir dire that his knowledge of the

prior death sentence would affect his judgment. Perhaps Lambert

equivocated at first, but after Snook moved to strike him for cause,

iin ne cin

hei a i MORLEY

55a

In the final analysis, Strickland teaches that “the per-

formance inquiry must be whether counsel’s assistance was

reasonable considering all the circumstances.” Strickland,

466 U.S. at 688, 104 S.Ct. at 2064-65. Considering all

the circumstances in this case—namely, the anticipated

direct or indirect references to death row iti conjunction

with the risk that jurors might independently deduce the

prior death sentence—we hold that counsel did not fall

below an objective standard of reasonableness. Rather,

this was the type of strategic decision to which we must

defer under Strickland.”

the resentencing court pursued the matter further. The court

asked whether Lambert could base his decision solely on what he

heard at the resentencing proceeding and not on the prior death

sentence. Lambert answered in the affirmative. The court, having

observed Lambert, was satisfied with his response. We agree with

the district court below that there is nothing in the record that

could have us doubt the resentencing court’s finding of impartial-

ity. See Turner, 812 F.Supp. at 1435; see also Turner, 364 S.E.2d

at 486 (Supreme Court of Virginia, on direct review in Turner I],

finding no abuse of discretion.

24 Turner says that counsel were unreasonable for ignoring the

advice of experts from the NAACP Legal Defense Fund and the

Southern Prisoners Defense Committee. Those experts were of

the opinion that a jury never should be informed that a defendant

had previously been sentenced to death for the same crime. Though

perhaps a prudent rule in theory, such a categorical rule was of

no help here in light of the difficulties counsel would face in attempt-

ing to keep this evidence from the jury. In fact, counsel followed

the only practical suggestion offered by these experts when they

moved for redaction of damaging references from the Common-

wealth’s evidence, but the trial court was not amenable to this

approach.

Because Turner accords weight to the views of death penalty

“experts,” it is perhaps worth noting here that Snook, who lec-

tured and wrote about death penalty defense, was no novice him-

self. The state habeas court found that Snook was “one of the

experts in the field of capital cases,” had “handled more death

penalty Htigation than any other private attorney in Virginia,”

and was “one of the most experienced criminal lawyers in Vir-

ginia.” JA 1486. Furthermore, the court found that Woodward

56a

Facet

2. Failure to Present Mitigating Evidence

The Commonwealth finished its case in chief on Friday,

January 9, 1987. On Monday, January 12, defense coun-

sel rested without putting on any mitigating evidence.

Turner claims this decision was both unreasonable and

prejudicial under Strickland. As set out below, we con-

clude that counsel made a sound tactical decision not to

present any mitigating evidence, a decision which we

should avoid second guessing.

‘a

The Commonwealth had in its possession a substantial

amount of aggravating evidence. Yet, the prosecutor,

Grizzard, put on a rather mild case in chief. He first pre-

sented the facts of the Smith murder. But instead of

putting on live eyewitness testimony, transcripts from the

Turner I sentencing proceeding were read verbatim to

the jury. Snook thought the jury appeared bored by this

approach.

Next, Grizzard presented Turner’s criminal history. But,

instead of fleshing out the aggravating details of his nu-

Merous prior crimes, an official from the Virginia De-

partment of Corrections simply stated each offense, and |

the date, location and sentence for each offense. :

Finally, Grizzard presented evidence relating to the i

1984 breakout and the 1985 attempted escape from

Mecklenburg. With regard to the 1984 escape, instead of

calling eyewitnesses to testify about Turner’s role and

actions, the Commonwealth called a police officer (Officer

Mills) to read Turner’s account of the incident. (Mills

had interviewed Turner in the presence of Snook shortly

after the incident. )

In short, despite the fact that the Commonwealth had

a substantial amount of damaging evidence relating to

“was undoubtedly one of the most effective criminal lawyers in

Eastern Virginia.” Jd. He had been practicing criminal law for .

nearly two decades, “predominantly representing criminal defend- :

ants from the same or similar backgrounds as Turner.” Id.

tans ie Wee e ae US Se Ree | |Oe Ce UT a e. :

57a

future dangerousness, by its own account it withheld from

its case in chief eighty percent of that evidence, includ-

ing some of the most damaging information. For ex-

ample, Grizzard was prepared to call Lorenzo Artis, the

victim of Turner’s 1970 malicious wounding offense, and

police officers involved with that incident. Artis would

have described how Turner shot him five times as he

(Artis) left a restaurant; a police officer (Chief Britt)

would have presented Turner’s reaction when arrested:

“CY ]Jou-all after me because I shot that nigger? .. . I

hope he dies.” JA 695.

Snook and Woodward were well aware of the Common-

wealth’s evidence, and they knew that Grizzard’s strat-

egy was to dump damaging evidence during cross-

examination and rebuttal. (In fact, Grizzard effectively

used the same strategy in Turner I, where the jury found

future dangerousness in addition to vileness.) Neverthe-

less, Snook and Woodward were surprised at how much

Grizzard withheld from his case in chief; they thought

he made a tactical error, and they thought Turner could

not be in a much better position at that point. Because

Snook believed “there was more evidence suggestive of

[Turner’s] bad character than there was suggestive of his

good character,” JA 797, and that it might do more harm

than good to open the door for more aggravating evi-

dence, they immediately considered not putting on any

mitigating evidence.

Snook first decided not to call Mr. Fisher. Dr. Fisher’s

function, after all, was to rebut the Commonwealth’s

future dangerousness evidence, much of which had not

been presented in its case in chief. And, the Common-

wealth’s principal strategy was to wait for Dr. Fisher’s

testimony to open the door for significant aggravating evi-

dence during cross-examination and rebuttal. For instance,

Grizzard would have called Dr. Lee, a clinical psycholo-

gist, to testify “that there was a substantial probability

that Mr. Turner would commit future criminal offenses of

a violent nature. And of the degree that this would prob-

58a

ably put society in danger.” JA 1133. A psychiatrist (Dr.

Dimitris) would have confirmed this. Thus, calling Dr.

Fisher could have done more harm than good, and Snook’s

decision not to call Dr. Fisher clearly was the type of

tactical decision to which he must defer under Strick-

land. See Fitzgerald v. Thompson, 943 F.2d 463, 470

(4th Cir.1991), cert. denied, U.S. ——, 112 S.Ct.

1219, 117 L.Ed.2d 456 (1992); Bunch, 949 F.2d at

1364 (had counsel called their psychiatrist, harmful evi-

dence would have emerged on cross-examination). In

deed, Turner’s expert (Dr. Link) at the state habeas

hearing conceded it “was a good decision not to use [Dr.

Fisher].” JA 1096.

Likewise, although a closer call, it was a tactical de-

cision not to present evidence relating to Turner’s gra-

tuitous actions during the 1984 Mecklenburg escape. Here,

there was more concern with cross-examination than re-

buttal. For example, although witnesses could have

testified that Turner helped some of the hostages, they

also would have reaffirmed the aggravating circumstances

surrounding Turner’s role in the incident. Indeed, one of

Turner’s potential witnesses (Officer Fitts) could have

revealed on cross-examination that Turner stuck a knife

in his back and told him to “get down or die.” JA 2337,

2335.

The best mitigating evidence here was a statement

allegedly made by Turner to other inmates who were

threatening to kill some hostages: “You're going to have

to go thru [sic] me first. If you’re going to kill somebody,

you will have to kill me first.” JA 2364. Yet, by with-

holding this statement, Snook precluded the Common-

wealth from recycling (on cross-examination) aggravat-

ing evidence about Turner’s role in the escape: Turner

helped plan and execute the escape of dangerous death

row inmates, he provided inmates with weapons, he took

hostages, etc. Although the jury had already heard this

aggravating evidence, it had heard it only once—and

only from Turner’s perspective (from Officer Mills’ in-

terview after the incident). We cannot fault counsel for

ST ee > Be a ee a wo? tae “RA? ee Sea eee Uf ee

59a

wanting to leave it at that. Moreover, Snook thought

the Commonwealth’s reliance on Turner’s statement made

him appear trustworthy. (We note that Turner’s ac-

count of .the incident, which was read to the jury, did

include some mitigating facts: He wanted to back out of

the plan, he urged the inmates not to harm a correctional

officer, he tried to give a knife to Lt. Hawkins, and he

checked on Nurse Barksdale, who had been disrobed and

placed in his cell.)

Having decided not to call Dr. Fisher or Mecklenburg

witnesses, Snook was left with background and character

evidence, which he thought to be rather marginal. As for

the background evidence in particular, Snook thought that

juries were not very receptive to evidence of a deprived

upbringing without a “solid mental health issue.” JA

836-37. And, Snook and Woodward thought it might

offend some members of the rural Virginia jury if they

emphasized Turner’s deprived upbringing or suggested

that one might commit murder as a result of it. See Card

v. Dugger, 911 F.2d 1494, 1511 (11th Cir.1990) (“em-

phasizing a client’s deprived childhood does not have a

very beneficial impact on a northwest Florida jury, given

the fact that many jurors have had difficult lives, but

have not turned to criminal conduct”). Indeed, during

his opening statement Snook had noticed that some ju-

rors appeared unreceptive when he referred to Turner’s

deprived upbringing.

Of more concern was the permissible scope of rebuttal

were Snook to put on background or character evidence.

Snook did not believe this evidence was so overwhelm-

ing that it was worth opening the door for extensive ag-

gravating evidence. Accordingly, Snook and Woodward

returned to court on Monday, January 12, 1987, and

asked for a ruling on the permissible scope of rebuttal evi-

dence. The court declined to rule on the motion until

it heard the specific evidence at trial but clearly indicated

that there would be few, if any, restrictions on the scope

60a

of rebuttal. See, e.g., JA 424-25 (the court warned, “I

think the Commonwealth has a right to come back and

show the bad, if you show the good”); JA 426 (the court

advised, “[b]Jecause this whole hearing is based on... .

what kind of man is Willie Lloyd Turner . . . you’ve got

to take the bitter with the sweet and vice versa”); id.

(court saying the Commonwealth can “come in and show

well, [Turner] was a pretty bad guy”). Snook and Wood-

ward immediately told the court that, based on the court’s

statements, they would rest their case without putting on

any evidence.

In sum, Snook and Woodward thought Turner had a

chance for a life sentence if the Commonwealth failed to

meet its burden of establishing that Turner was a future

danger to society. Snook thought (and argued to the

jury during closing argument) that the Commonwealth

did not carry that burden in its case in chief. Moreover,

he was concerned that the presentation of mitigating evi-

dence would provoke damaging cross-examination and re-

buttal. As we have observed:

Trial counsel is too frequently placed in a no-win

situation with respect to possible mitigating evidence

at the sentencing phase of a capital case. The fail-

ure to put on such evidence, or the presentation of

evidence which then backfires, may equally expose

counsel to collateral charges of ineffectiveness. The

best course for a federal habeas court is to credit

plausible strategic judgments in the trial of a state

case.

Bunch, 949 F.2d at 1364 (failure to put on evidence of

traumatic childhood and psychiatric testimony). In view

of all the circumstances surrounding Snook’s decision to

forego a mitigation case, Turner has not overcome the

presumption that the decision constituted “sound trial strat-

egy,” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

See Burger, 483 U.S. at 795, 107 S.Ct. at 3126; Strick-

land, 466 U.S. at 700, 104 S.Ct. at 2071; Bunch, 949

ee ieee ok ee

PATOL PA Peds 08 het te

" ee Ten or

6la

F.2d at 1364; Whitley v. Bair, 802 F.2d 1487, 1496 (4th

Cir.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1618,

94 L.Ed.2d 802 (1987); McAleese v. Mazurkiewicz, 1

F.3d 159, 167 (3d Cir.), cert. denied, US. .

114 S.Ct. 645, 126 L.Ed.2d 603 (1993); Prejean v.

Smith, 889 F.2d 1391, 1398 (Sth Cir.1989), cert. denied,

494 US. 1090, 110 S.Ct. 1836, 108 L.Ed.2d 964

(1990); Mitchell v. Kemp, 762 F.2d 886, 890 (11th Cir.

1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97

L.Ed.2d 774 (1987). Having held that counsel did not

fall below an objective standard of reasonableness, we

need not explore whether Turner was prejudiced by the

failure to introduce mitigating evidence.”

25 The district court below apparently concluded that Turner was

not prejudiced by Snook’s failure to present the Mecklenburg

evidence, because this evidence was relevant only to the issue of

future dangerousness (which the jury did not find), not vileness.

See Turner, 812 F.Supp. at 1429-30. The suggestion here is that

a petitioner cannot be prejudiced when counsel withholds mitigat-

ing evidence that lacks a direct substantive relationship to the

aggravating factor(s) found by the sentencer. The Supreme Court,

however, has made clear that a sentencer may not be precluded

from considering, and therefore basing a life sentence on, any

mitigating evidence—even when there is no direct relationship

between that evidence and the established aggravating factor(s).

See Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821,

1824-25, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476

U.S. 1, 4-5, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986); Eddings

v. Oklahoma, 455 U.S. 104, 114-16, 102 S.Ct. 869, 877-78, 71 L.Ed.2d

1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954,

2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion). It follows

that a petitioner may be prejudiced when counsel fails to present

“unrelated” mitigating evidence, so long as there is a reasonable

probability that, had the sentencer considered the mitigating evi-

dence, it “would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland, 466

U.S. at 695, 104 S.Ct. at 2069.

62a

3. Failure to Put On Mitigating Evidence Described

in the Opening Statement

At the outset of the sentencing proceeding, Snook

planned to introduce mitigating evidence. Accordingly,

in his opening statement he told the jury that he would

produce certain mitigating evidence (testimony and other

evidence). As discussed above, he rested without put-

ting on that evidence. Turner says Snook’s failure to pre-

sent the evidence described in the opening statement,

in and of itself, was ineffective assistance. We disagree.

Turner relies principally on a First Circuit decision,

Anderson v. Butler, 858 F.2d 16 (1st Cir.1988). In An-

derson, defense counsel, in his opening at the close of the

state’s case, told the jury that he would call a psychiatrist

and a psychologist. /d. at 17. The next day counsel

rested without calling the doctors. Jd. The court, over

then-Judge Breyer’s dissent, emphasized that “little is

more damaging than to fail to produce important evidence

that had been promised in an opening” because “the

jurors would believe, in the absence of some other expla-

nation, . . . that the [witnesses] were unwilling, viz., un-

able, to live up to their billing.” Jd. The court’s

opinion suggests that counsel renders ineffective assistance

as a matter of law when evidence promised in an opening

statement is not delivered at trial, unless perhaps counsel

completely abandons a defense. See id. at 18-19. Turner

asks that we adopt such a rule.”

However, in a recent case not cited by Turner, United

States v. McGill, 11 F.3d 223 (1st Cir.1983), the First

26 Turner also refers us to a Seventh Circuit decision, Harris

v. Reed, 894 F.2d 871 (7th Cir. 1990), which cited Anderson. But

Harris did not involve a distinct challenge to counsel’s failure to

put on evidence promised in an opening statement. Rather, de-

fendant attacked generally counsel’s failure to put on mitigating

evidence, evidence the court thought “would have greatly aided

his case.” See id. at 879. The fact that this evidence was described

in the opening statement, though a factor, was not determinative.

See id.

63a

Circuit appeared to read narrowly its Anderson decision.

The court said: “Although a failure to produce a prom-

ised witness may under some circumstances be deemed

ineffective assistance, see, e.g., Anderson v. Butler, 858

F.2d 16, 19 (1st Cir.1988), the determination of in-

efficacy is necessarily fact based. ‘[N]o particular set of

rules can be established to define effective assistance.

. 2” Id. at 227 (emphasis added) (quoting United

States v. Natanel, 938 F.2d 302, 310 (1st Cir.1991), |

cert. denied, U.S. ——, 112 S.Ct. 986, 117 L.Ed.2d |

148 (1992)).

We agree with the reasoning of the more recent First

Circuit decision and with Judge Breyer’s dissenting opin-

ion in Anderson, both of which adhere to Strickland’s

express warning that:

No particular set of detailed rules for counsel’s con-

duct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range

of legitimate decisions regarding how best to repre-

sent a criminal defendant. Any such set of rules

would interfere with the constitutionally protected in-

dependence of counsel and restrict the wide latitude

counsel must have have in making tactical decisions.

Strickland, 466 U.S. at 688-89, gd S.Ct. at 2065. See

also McAleese, 1 F.3d at 167-68 (in dicta, the Third

Circuit noted that even if the open tatement contained

implicit promise to produce cortege Bhibecee counsel’s

decision not to do so is not necessarily ineffec-

ohnson v. Johnson, 531 F.2d 169, 177 n. 19

ert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48

1976). In our view, assuming counsel

does not know aWNhe time of the opening statement that

he will not produce promised evidence, an informed

change of strategy in thtnqidst of trial is “virtually un-

challengeable,” Strickland, U.S. at 690, 104 S.Ct.

at 2066. Were we to adopt Turn position, we would

effectively be instructing defense counsel to continue to

64a

pursue a trial strategy even after they conclude that the

original strategy was mistaken or that the client may be

better served by a different strategy. See Anderson, 858

F.2d at 20 (Breyer, J., dissenting) (“Consider the pres-

sure that such a view places upon a criminal defense

attorney (once having mentioned a witness) to call that

witness, even if doing so will hurt his client.”). In ad-

dition, we would discourage counsel from making effective

use of opening statements, thereby precipitating ineffective

assistance challenges to the quality of opening statements.

In the instant case, Snook intended at the outset to

present the evidence described in the opening statement.

He changed his trial strategy because he thought the

Commonwealth rested prematurely and because the court

indicated that the scope of rebuttal would be quite broad.

We conclude that his strategic decision to withhold evi-

dence promised in the opening statement was not unrea-

sonable. Nor was it unreasonable for him to mention

mitigating evidence in his opening statement. This, again,

was a strategic decision; had Snook not described miti-

gating evidence in the opening statement, we suspect that

Turner would have challenged that omission. Finally,

Turner’s allegation that the opening statement was made

without the benefit of adequate pretrial preparation must

be rejected, for we have concluded above that Snook’s

pretrial preparation was adequate.

In conclusion, we hold that the Virginia courts applied

the statutory vileness factor in a constitutionally adequate

manner and that counsel did not render ineffective as-

sistance. We therefore affirm the district court’s denial

of Turner’s § 2254 petition for habeas corpus.

AFFIRMED.

65a

LUTTIG, Circuit Judge, concurring in the judgment:

Treating the express language of United States Su-

preme Court opinions as mere exhortation, rather than

as binding interpretation of law, the majority fundamen-

tally alters for this circuit the Supreme Court’s “new

rule” jurisprudence governing federal habeas review. In

its stead, the majority substitutes a doctrine that requires

federal courts to review on the merits every claim “pred-

icated on” a prior precedent, whether or not the relief

sought by the petitioner is dictated by that precedent.

As its own opinion reveals, the majority thereby requires

full merits review even of claims that are wholly without

merit under precedent existing at the time a petitioner’s

conviction became final. The majority thus eviscerates

the Supreme Court’s decisions in Teague v. Lane, 489

U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and

succeeding cases, and requires the kind of endless, intru-

sive review of state court judgments by federal habeas

courts that it was the express purpose of Teague to arrest.

In adopting its new standard, the majority all but ig-

nores the Supreme Court’s recent decision in Graham v.

Collins, US. , 113 S.Ct. 892, 122 L.Ed.2d

260 (1993), which stands as directly contrary authority

to the majority’s new pronouncement, consigning Graham

to a line of Supreme Court cases that, it informs us, has

only “added more words,” but no guidance, to the “new

rule” inquiry. Ante at 879. If this were not enough,

the majority mischaracterizes at least four other Supreme

Court cases, Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct.

2934, 106 L.Ed.2d 256 (1989), Stringer v. Black, ——

US. , 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992),

Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853,

100 L.Ed.2d 372 (1988), and Shell v. Mississippi, 498

U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), and over-

looks a fifth, Clemons v. Mississippi, 494 U.S. 738, 110

S.Ct. 1441, 108 L.Ed.2d 725 (1990), that stand between

it and the new standard it announces. Because of the

ee ee EE ee a ee - S - a -

66a

majority’s startling disregard for Supreme Court authority,

and because of the enormous consequences for habeas

review wrought by this disregard, I do not join the court’s

opinion.

The Supreme Court has stated repeatedly that the rule

sought by a habeas petitioner is “new,” and thus consider-

ation of the underlying claim barred, unless reasonable

jurists considering the petitioner’s claim at the time his

conviction became final “ ‘would have felt compelled by

existing precedent’ to rule in his favor.” Graham,

U.S. at , 113 S.Ct. at 898 (emphasis added) (quot-

ing Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257,

1260, 108 L.Ed.2d 415 (1990)). With similar frequency

and clarity, the Court has declared, as a corollary, that

it is insufficient that prior decisions “inform, or even

control or govern, the analysis of” a petitioner’s claim.

Parks, 494 U.S. at 491, 110 S.Ct. at 1262. See also

Sawyer v. Smith, 497 U.S. 227, 236, 110 S.Ct. 2822,

2828, 111 L.Ed.2d 193 (1990) (quoting Parks with

approval); Butler v. McKellar, 494 U.S. 407, 415, 110

S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990) (decision

within the “logical compass” of an earlier decision may

nonetheless announce new rule).

Without even a discussion of this established standard,

and through the artifice of substituting terms of different

meaning for the terms of the Supreme Court standard,

the majority adopts for this circuit a standard that com-

pels federal habeas review if a petitioner’s claim is “pred-

icated on” prior decisions, or if prior decisions “dictate”

the petitioner’s “challenge.” Ante at 883 (rejecting Com-

monwealth’s Teague argument because it “focuses on

the most specific conclusion or holding Turner hopes we

reach: that the limiting definition used in his case was

constitutionally insufficient”). Thus, holding that Turner

67a

does not seek a new rule within the meaning of Teague

because “Turner’s challenge is predicated on Godfrey [v.

Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398

(1980)],” ante at 882, and “Godfrey .. . dictates Tur-

ner’s challenge,” id. at 881,’ the majority undertakes full

merits review of a claim as to which it concedes Turner

is unquestionably not entitled to relief.

Rejecting the majority’s standard, the Supreme Court

has stated time and again that prior precedent must dic-

tate the relief sought by the habeas petitioner in order to

avoid Teague’s bar to federal review. See, e.g., Penry,

492 U.S. at 313, 109 S.Ct. at 2944 (“[W]e must deter-

mine, as a threshold matter, whether granting [Penry]

the relief he seeks would create a ‘new rule.’” (emphasis

added) (quoting Teague, 489 U.S. at 301, 109 S.Ct. at

1070) ); Graham, USS. at , 113 S.Ct. at 900

(“We cannot say that reasonable jurists considering pe-

titioner’s claim in 1984 would have felt that these cases

‘dictated’ vacatur of petitioner's death sentence.” (empha-

sis added) (quoting Teague, 489 U.S. at 301, 109 S.Ct.

at 1010)); Graham, U.S. at , 113 S.Ct. at 902

(“This distinction leads us to conclude that neither Penry

nor any of its predecessors ‘dictates’ the relief Graham

seeks within the meaning required by Teague.” (empha-

sis added) ); id. US. at , 113 S.Ct. at 903

(“We cannot say that all reasonable jurists would have

deemed themselves compelled to accept Graham’s claim

in 1984.” (emphasis added)); Stringer, U.S. at

, 112 S.Ct. at 1135 (Teague inquiry asks “whether

granting the relief sought (by the petitioner] would create

1 See also ante at 882 (“Because Stringer expressly held that

Godfrey dictated Cartwright’s claim and thus Cartwright did not

seek a new rule for purposes of Teague, we are compelled to reach

the same conclusion here.”); id. at 881-82 (“The Tenth Circuit’s

decision [in Cartwright] was predicated on Godfrey.”); id. at

882-83 n. 9 (“Several [later] Supreme Court decisions . . . seem-

ingly take for granted that challenges to a state’s limiting con-

struction are predicated on Godfrey and Cartwright.”).

68a

a new rule because the prior decision is applied in a

novel setting, thereby extending the precedent.” (emphasis

added) ); id. (“[A] case decided after a petitioner’s con- |

viction and sentence became final may not be the predicate :

for federal habeas corpus relief unless the decision was

dictated by precedent... .” (emphasis added) ); Johnson

v. Texas, US. y , 113 S.Ct. 2658, 2668,

125 L.Ed.2d 290 (1993) (“In rejecting the contention

that Penry dictated a ruling in the defendant's favor

[in Graham], we stated that... .” (emphasis added) );

id. (“We also did not accept the view that the Lockett

[v. State of Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57

L.Ed.2d 973 (1978)] and Eddings[ v. Oklahoma, 455

U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)] line of

cases, upon which Penry rested, compelled a holding for

the defendant in Graham .. . .” (emphasis added) ); id.

(“We concluded that, even with the benefit of the subse-

quent Penry decision, reasonable jurists at the time of

Graham’s sentencing ‘would [not] have deemed themselves

compelled to accept Graham’s claim.’” (emphasis added)

(quoting Graham, U.S. at ——, 113 S.Ct. at

903) ); Johnson, U.S. at , 113 S.Ct. at 2668

(“Thus, we held that a ruling in favor of Graham would

have required the impermissible application of a new rule

under Teague.” (emphasis added)); id. at » aan

S.Ct. at 2671 (“To rule in petitioner’s favor ... .”);

Caspari v. Bohlen, USS. ‘ , 114 S.Ct.

948, 953, 127 L.Ed.2d 236 (1994) (“The nonretroac-

tivity principle prevents a federal court from granting

habeas corpus relief to a state prisoner based on a rule

announced after his conviction and sentence became fi-

nal.” (emphasis added) ).?

2 The holding in Bohlen, which is the Court’s most recent Teague

decision, is fully consistent with the other cases in the Teague

line of authority. The majority states that in Bohlen, “the Court

focused on the more general rule sought—that the Double Jeopardy

Clause applies to a noncapital sentencing proceeding—as opposed

to the specific holding sought by the petitioner, that his sentence

69a

Indeed, even the dissenting Justices in the continuing

debate over the contours of the “new rule” doctrine fully

accept that the extant precedent must dictate a ruling in

the petitioner’s favor. Justice Souter, for example, who

authored the dissent in Graham, could not have been

clearer as to this requirement of the “new rule” doctrine

when he wrote in Wright v. West, USS. , 112

S.Ct. 2482, 120 L.Ed.2d 225 (1992), that “[t]o survive

Teague, {a rule] must be ‘old’ enough to have predated

the finality of the prisoner’s conviction, and specific

enough to dictate the rule on which the conviction may

be held to be unlawful.” Id. at , 112 S.Ct. at 2501

(Souter, J., concurring) (emphasis added); see also id.

at , 112 S.Ct. at 2502 (Souter, J., concurring) (“[I]n

light of authority extant when his conviction became final,

its unlawfulness must be apparent.” (emphasis added) ).

Justice Brennan also acknowledged that this is the stand-

ard governing federal habeas review. As he stated in

Butler, the Court in Teague “declared that a federal court

entertaining a state prisioner’s habeas petition generally

may not reach the merits of the legal claim unless the

court determines, as a threshold matter, that a favorable

ruling on the claim would flow from the application of

[pre-existing] legal standards.” Butler, 494 U.S. at 417,

110 S.Ct. at 1218-19 (Brennan, J., dissenting) (emphasis

added); see also id. at 417-18, 110 S.Ct. at 1219 (Bren-

nan, J., dissenting) (“Put another way, a state prisoner

can secure habeas relief only by showing that the state

court’s rejection of the constitutional challenge was so

violated the Double Jeopardy Clause.” Ante at 883. This distinction

is a false one. Granting Bohlen’s proposed relief—declaring his

sentence unconstitutional—would have required a holding that the

Double Jeopardy Clause applied with the same force in noncapital,

as in capital, sentencing. The Court held that reasonable jurists

at the time Bohlen’s conviction became final would not have believed

such a holding was dictated by precedent. Hence, they would not

have been compelled to rule in Bohlen’s favor and declare his

sentence unconstitutional. See Bohlen, U.S. at - .

114 S.Ct. at 955-56.

10a

clearly invalid under then-prevailing legal standards that

the decision could not be defended by any reasonable

jurist.” (emphasis added)); West, U.S. at .

112 S.Ct. at 2490 (“[A] federal habeas court ‘must de-

fer to the state court’s decision rejecting the claim unless

that decision is patently unreasonable.’” (emphasis

added) (quoting Butler, 494 U.S. at 422, 110 S.Ct. at

1221 (Brennan, J., dissenting) ) }.

The majority appears to believe that those Justices who

have either dissented from or concurred separately in the

Supreme Court’s Teague cases disagree with the Court’s

majority that prior precedent must dictate the relief sought

by the petitioner. This misunderstanding seems to stem

from the majority’s failure to appreciate the nuance of the

position taken by the dissent in Graham. See discussion

infra at 880-82. In Graham, the dissent does state that

“application of an existing precedent in a new factual

setting will not amount to announcing a new rule.”

Graham, US. at , 113 S.Ct. at 918 (Souter,

J., dissenting). However, the dissent’s view that Graham

sought only the application of Jurek v. Texas, 428 US.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), was not

based on the conclusion that resolution of the case,

whether for or against Graham, would be by resort to

the rule in Jurek, but rather on the twin conclusions that

Graham’s evidence was not materially different from

Penry’s, see Graham, U.S. at , 113 S.Ct. at

920 (Souter, J., dissenting), and that both types of evi-

dence received essentially the same degree of considera-

tion in mitigation, see id. (“Graham’s claim that his evi-

dence could receive only partial consideration is just as

much a claim for application of the pre-existing rule de-

manding the opportunity for full effect as was Penry’s

claim that his retardation could be given no effect under

the second Texas special issue.”). It was for these rea-

sons that the dissenters concluded Graham was indistin-

guishable from Penry. And “from [their] conclusion that

the rule from which the petitioner sought to benefit in

Tila

Penry was not ‘new,’” because Jurek, Lockett, and Ed-

dings dictated the relief Penry sought, “it necessarily

follow[ed] that the rule petitioner Graham [sought] [was]

not new either.” Jd. See also West, US. at —,

112 S.Ct. at 2497 (O’Connor, J., concurring) (“If a

proffered factual distinction between the case under con-

sideration and pre-existing precedent does not change the

force with which the precedent’s underlying principle ap-

plies, the distinction is not meaningful, and any deviation

from precedent is not reasonable.”). The dissenters, in

other words, disagreed with the majority only over the

question of the generality with which a pre-existing rule

should be described.

In no Teague opinion—majority, concurring, or dis-

senting—has any Justice intimated, much less stated, that

he or she might adopt the standard employed by the

majority today.

The standard adopted and consistently applied by the

Court does not, contrary to the majority’s belief, conflate

the Teague inquiry and the decision on the merits. See

ante at 887-88 n. 16. It is only if one does not accept

the Court’s standard that prior precedent must dictate the

relief sought (as the majority does not) that the Teague

inquiry appears circular and thus to merge into a dis-

position on the merits. If one follows the standard an-

nounced by the Court, it could not be clearer that, while

the Teague inquiry, like a disposition on the merits, re-

quires a canvassing of the applicable legal authority and

a consideration of the facts in light of that authority, it

is an inquiry quite different from a disposition on the

merits. Under Teague, the ultimate question is solely

whether the state court judgment was reasonable under

authority existing at the time the defendant’s conviction

became final (viz, whether precedent dictated the relief

sought), not whether the judgment was in fact correct

as a matter of law. Thus, for example, one would not

have to decide on the merits whether a limiting construc-

72a

tion was constitutionally sufficient in order to know

whether the claim that the instruction was unconstitutional

was Teague-barred. Compare ante 887-88 n. 16. One

would only have to decide whether precedent dictated such

a holding. In short, the majority fails to appreciate that

to determine what reasonable jurists would have believed

precedent dictated is simply not to determine the merits

of the claim.

The requirement that prior precedent dictate a holding

for the defendant was fashioned so as to “validate[] rea-

sonable, good-faith interpretations of existing precedents

made by state courts,” Butler, 494 U.S. at 414, 110 S.Ct.

at 1217, the Court having determined that the mere threat

of reversal of convictions obtained in clear contradiction

of established Jaw would adequately protect federal rights.

The requirement serves this purpose by ensuring that fed-

eral courts on habeas do not second-guess reasonable state

court judgments, whether by reversal or, as here, by af-

firmance wherein state court reasoning is critically ex-

amined and finely calibrated. Not only will the standard

adopted by the majority here not serve this and the other

purposes underlying the “new rule” doctrine, it will af-

firmatively disserve these purposes in ways that would be

hard to overstate.

Applying the majority’s first locution of whether prior

precedent “dictates the challenge,” even against the peti-

tioner, alone will result in an inestimable number of cases

in which federal courts will undertake full merits review

of reasonable, and in many instances unassailable, state

court judgments. For in many cases that are not cur-

rently reviewable on federal habeas, the state court’s judg-

ment, as the one we review in this case, will have been

dictated by existing precedent. Any cases not subject to

review under the “dictates the challenge” locution will

undoubtedly be subject to review under the majority’s al-

ternative formulation that the “new rule” doctrine does

73a

not bar consideration of any claim “predicated on” prior

caselaw. This formulation will render reviewable on

habeas essentially every claim, for almost every habeas

petitioner necessarily “predicates” his claim on prior case-

law. Cf. Penry, 492 U.S. at 353, 109 S.Ct. at 2965

(Scalia, J., dissenting) (“In a system based on precedent

and stare decisis, it is the tradition to find each decision

‘inherent’ in earlier cases... .”).

These consequences of the majority’s decision under-

score the magnitude of its error. The very purpose of

Teague was to halt federal habeas review even of state

court interpretations of federal law that ultimately prove

incorrect, provided they are reasonable. Yet under the

majority’s reasoning, federal courts will be reviewing and

deciding on the merits countless state court judgments

that are not only reasonable but, as here, indisputably

correct.

The standard adopted by the majority thus will com-

pletely frustrate the principles of finality, comity toward

state judicial tribunals, see Teague, 489 U.S. at 310,

109 S.Ct. at 1075 (“[s]tate courts are understandably

frustrated” when federal habeas courts reverse their rea-

sonable rulings on federal law) (quoting Engle v. Isaac,

456 U.S. 107, 128 n. 33, 102 S.Ct. 1558, 1572 n. 33,

71 L.Ed.2d 783 (1982)), and respect for state prosecu-

torial authorities, see Teague, 489 U.S. at 310, 109 S.Ct.

at 1075 (federal review should not require states “to

marshal resources in order to keep in prison defendants

whose trials and appeals conformed to then-existing con-

stitutional standards”), that prompted adoption of Teague’s

“new rule” doctrine in the first place.

Il.

If any of the Supreme Court’s Teague cases had even

hinted at the standard applied by the majority, its action

would not be so disconcerting. However, in order to forge

its new Teague standard, the majority must ignore the

74a

Supreme Court precedent that proves its error and mis-

read or overlook at least five other Supreme Court prece-

dents that foreclose or otherwise cast doubt on the stand-

ard it adopts.

Most disturbingly, the majority simply refuses to di-

rectly confront Graham, a case that confirms that the

majority has misstated and misapplied the Court’s “new

rule” doctrine, and reveals that it has seriously misread

Penry, upon which it extensively relies.

In Graham, the petitioner sought vacatur of his death

sentence on the grounds that Texas’ “special issues” pro-

cedure for imposing the death penalty precluded his jury

from giving mitigating effect to his evidence of youth,

deprived upbringing, and redeeming character traits, in

contravention of the Supreme Court’s decisions in Jurek,

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d

973 (1978), and Eddings v. Oklahoma, 455 U.S. 104,

102 S.Ct. 869, 71 L.E.2d 1 (1982). Specifically,

Graham contended that Texas’ capital sentencing scheme,

which required juries to impose the death penalty if they

answered three “special issues” questions in the affirma-

tive, did not permit the jury to give mitigating effect to

his evidence.* Graham’s unsuccessful Teague argument

before the Supreme Court sounded much like Turner’s

argument before us, in that Graham claimed that he was

simply seeking an “application” of prior law:

He asks only what was granted in Penry; that the

promise of Jurek be redeemed, and that the Court

reaffirm the authority—from Woodson{ v. North

Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d

- 944 (1976)] to Lockett and Eddings—on which

Penry rests.

3The second of these questions allowed for consideration of

mitigating evidence. That question asked “whether there is a

probability that the defendant would commit criminal acts of vio-

lence that would constitute a continuing threat to society.” Tex.

Code Crim.Proc.Ann. art. 37.071(b) (Vernon 1981).

paver’ S

75a

Reply Brief of Petitioner at II.A., Graham v. Collins,

US. , 113 S.Ct. 892, 122 L.Ed.2d 260 (1993).

Cf. ante at 886 (“Godfrey upheld the statutory vileness

factor on the basis of ‘assurances’ that the sentencer’s

discretion would be channelled by constitutionally suffi-

cient standards. Turner ‘argues that those assurances

were not fulfilled....’”).

Consistent with its prior cases, the Graham Court

stated the governing inquiry as whether reasonable jurists

would have believed themselves compelled by the prior

precedent to rule in petitioner’s favor:

Thus, unless reasonable jurists hearing petitioner’s

claim at the time his conviction became final “would

have felt compelled by existing precedent” to rule in

his favor, we are barred from doing so now.

Graham, U.S. at , 113 S.Ct. at 898 (emphasis

added) (quoting Parks, 494 U.S. at 488, 110 S.Ct. at

1260). Then, after reciting the “pre-existing normative

rule” of Jurek, Lockett, and Eddings, that it was uncon-

stitutional for a state to foreclose completely a jury’s

consideration of mitigating evidence, the Court concluded

that reasonable jurists considering Graham’s claim at the

time his conviction became final would not have felt that

these cases “ ‘dictated’ vacatur of petitioner’s death sen-

tence.” Graham, U.S. at , 113 S.Ct. at 900

(quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070).

“To the contrary,” the Court reasoned,

to most readers at least, these cases reasonably

would have been read as upholding the constitutional

validity of Texas’ capital sentencing scheme with re-

spect to mitigating evidence and otherwise . . . [be-

cause] it permitted petitioner to place before the

jury whatever mitigating evidence he could show, in-

cluding his age.

Graham, U.S. at , 113 S.Ct. at 900. Thus,

because the caselaw existing when Graham’s conviction

76a

became final would reasonably have been understood as

dictating not the relief Graham sought, but rather an

affirmance of his conviction and sentence, the Court held

that Graham sought a new rule and therefore that his

claim was Teague-barred. Compare ante at 886 (“In

sum, when we apply an extant normative rule to a new

set of facts .. . generally we do mot announce a new con-

stitutional rule of criminal procedure for purposes of

Teague.” (emphasis added) ).

Graham thus confirms that the Supreme Court has

given full effect both to its unambiguous directive that a

claim is barred unless a holding in the defendant’s favor

would be dictated by precedent existing at the time the

defendant’s conviction became final, and to the corollary

that a claim merely “predicated on” or governed by prior

precedent is not saved from the sweep of the “new rule”

doctrine.

If there were any question that this is the standard ap-

plied by the Supreme Court, it is laid to rest by the

Graham Court’s discussion, and ultimate distinction, of

Penry. See Johnson, U.S. at - » 22 BAe.

at 2668-69 (noting differences between Graham and

Penry). Penry, like Graham, challenged the application

of Texas’ then-existing death penalty statute. Penry, as

did Graham, sought vacatur of his death sentence on the

grounds that Texas’ “special issues” death penalty proce-

dure precluded his jury from giving full effect to his

mitigating evidence, in violation of Jurek, Lockett, and

Eddings. At a general level, Penry’s and Graham’s argu-

ments were virtually identical; they differed only with

respect to the specific type of mitigating evidence, the

consideration of which each claimed had been foreclosed

from juror consideration. In Penry’s case, the evidence

was of his organic brain damage and history of childhood

abuse; in Graham’s, the evidence was of his youth,

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