# Appendix — Turner v. Jabe

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1160%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1017

## Text

ouprene Vout, U.de

r FILED
wo, 941288 JAN 17 195
a ::45\:: Sn iii Ai aces a

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

601 Thirteenth Street, N.W.
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.
| ER eran een en eee

Memorandum Opinion of United
States District Court for the Eastern
District of Virginia (Feb. 1, 1993)....

Order of United States Court of Ap-
peals for the Fourth Circuit (Oct. 17,
MUTE anbnieneiipsddiniaeitidiadeMaeniiatetcits snecmn ea

Commonwealth of Virginia Death
BR RD oiecid ouch cececcoscsnsecusniceannes

Relevant Constitutional and Statutory
IIE ntacetiantetdiiideaainebmeet ieee se

Page

la

100a

la

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-

2a

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.

I

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

3a

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

4a

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.”

|

5a

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.

6a

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.

Ta

barred. We must first address these arguments to deter-
mine whether we can even reach the merits of Turner’s
claims.

II

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.

8a

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,

9a

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.

:
3
r
:
s

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.

IV

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.

Vv

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.

a

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1160%3A2. Public record. Not legal advice.