Williams v. Taylor (12/18/1998, No. 98-14)

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-14

TERRY WILLIAMS,

Petitioner-Appellee,

JOHN TAYLOR, Warden, Sussex I

State Prison,

Respondent-Appellant.

TERRY WILLIAMS,

Petitioner-Appellant,

No. 98-16

JOHN TAYLOR, Warden, Sussex I

State Prison,

Respondent-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-97-1527-A)

Argued: September 24, 1998

Decided: December 18, 1998

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge

Williams wrote the opinion, in which Judge Widener and Judge

Michael joined.

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COUNSEL

ARGUED: Robert Quentin Harris, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellant. Ellen O. Boardman, O'DONOGHUE & O'DONOGHUE,

Washington, D.C., for Appellee. ON BRIEF: Mark L. Earley, Attor-

ney General of Virginia, OFFICE OF THE ATTORNEY GENERAL,

Richmond, Virginia, for Appellant. Brian A. Powers, Dinah S. Leven-

thal, O'DONOGHUE & O'DONOGHUE, Washington, D.C., for

Appellee.

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OPINION

WILLIAMS, Circuit Judge:

On September 30, 1986, a Virginia jury convicted Terry Williams

of the capital murder of Harris Thomas Stone. Following the jury's

determination that Williams presented a future danger to society, the

trial court sentenced Williams to death. After exhausting all available

state remedies, Williams petitioned the United States District Court

for the Eastern District of Virginia for habeas corpus relief. See 28

U.S.C.A. § 2254 (West Supp. 1998). The district court ordered that

the writ be granted on the ground that Williams's trial counsel were

ineffective because they failed to present certain evidence in mitiga-

tion of punishment during the sentencing phase of Williams's trial.

The remaining allegations in Williams's habeas petition were dis-

missed.

On appeal, the Commonwealth contends that the writ was errone-

ously granted.1 We agree. The Virginia Supreme Court's conclusion

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1 Williams named Sam Pruett, Warden of the Mecklenburg Correc-

tional Center, as Respondent in his petition. When Fred W. Greene

replaced Pruett as Warden, Greene was substituted for Pruett as Respon-

dent. Thereafter, Williams was transferred to the Sussex I State Prison.

As a result, John Taylor, Warden of the Sussex I State Prison, was substi-

tuted for Greene as Respondent. Because of the numerous changes, we

refer to Respondent as "the Commonwealth" throughout this opinion.

that Williams's trial counsel were not ineffective during the sentenc-

ing phase of Williams's trial was not contrary to, or an unreasonable

application of, clearly established Supreme Court precedent. As a

result, Williams is not entitled to habeas relief under the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). 2 See 28 U.S.C.A.

§ 2254(d) (West Supp. 1998). Moreover, we conclude that none of the

claims raised in Williams's cross-appeal provide a basis for federal

habeas relief. Accordingly, we affirm in part and reverse in part.

As recited by the Virginia Supreme Court, the undisputed facts are

as follows:

Stone, an elderly man who resided on Henry Street in

Danville, was found dead in his bed shortly before 2:00 a.m.

Sunday, November 3, 1985. There was no sign of a struggle,

no blood was observed on Stone's body, and he was fully

clothed. Despite a diligent search, Stone's wallet, which he

customarily kept fastened in the back pocket of his pants,

was never found.

The local medical examiner, who examined the body [at]

about 9:30 that Sunday morning, noted an abrasion on the

chest, but no bruising. Stone's history of heart disease and

the police failure to report anything suspicious about the cir-

cumstances of Stone's death led the local medical examiner

to conclude that Stone's death was due to heart failure.

However, when Stone's blood alcohol content was later ana-

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2 Williams filed his petition for a writ of habeas corpus on December

12, 1997, more than one year after the enactment of the AEDPA. See

Pub. L. No. 104-132, 110 Stat. 1214 (enacted on April 24, 1996). As a

result, § 104 of the AEDPA, which amended 28 U.S.C.A. § 2254(d)

(West Supp. 1998), applies to this appeal. See Lindh v. Murphy, 117

S. Ct. 2059, 2067-68 (1997) (holding that the new habeas standards of

review do not apply to habeas petitions pending in federal court prior to

the enactment of the AEDPA); Green v. French , 143 F.3d 865, 868 (4th

Cir. 1998) (applying AEDPA to capital habeas petition filed after the

enactment of the AEDPA).

lyzed and was reported to be 0.41%, the regional medical

examiner's office in Roanoke amended the finding of the

cause of death to alcohol poisoning. Stone's daughter testi-

fied Stone looked "a little high" when she last saw him

entering his house shortly after 6:00 p.m. on Saturday,

November 2, 1985.

When the funeral director, Jack Miller, observed Stone's

body on Monday morning, he called a bruise or abrasion

over the left ribs to the attention of the police. The police

told Miller that the local medical examiner believed the

bruise was an old one. Though Miller disagreed with the

local medical examiner, on instructions from the police he

embalmed the body.

Almost six months later, the chief of police in Danville

received an anonymous letter from an inmate of the local

jail in which the author admitted killing "that man Who Die

on Henry St." The police interviewed Williams, an inmate

of the Danville jail at the time, who eventually admitted that

he had written the letter and later gave multiple confessions

to the murder and robbery of Stone. Williams said he had

first struck Stone in the chest, and later on his back, with a

mattock and had removed three dollars from Stone's wallet.

Stone's body was exhumed. On July 2, 1986 Dr. David

Oxley, a forensic pathologist and Deputy Chief Medical

Examiner for Western Virginia, performed an autopsy.

When Dr. Oxley opened the body, he found Stone's fourth

and fifth ribs on the left side had been fractured and dis-

placed inward, puncturing the left lung and depositing a

quantity of blood in the left chest cavity.

Williams v. Commonwealth, 360 S.E.2d 361, 363-64 (Va. 1987).

After a jury trial in the Circuit Court of the City of Danville, Vir-

ginia, Williams was convicted of the capital murder of Mr. Stone.

Based on its finding of future dangerousness, see Va. Code Ann.

§ 19.2-264.4(c) (Michie Supp. 1998), the jury recommended that Wil-

liams be sentenced to death. Following the jury's recommendation,

the trial court sentenced Williams to death. On direct appeal, the Vir-

ginia Supreme Court affirmed Williams's conviction and death sen-

tence. See Williams, 360 S.E.2d at 363-64. The United States

Supreme Court denied Williams's petition for a writ of certiorari. See

Williams v. Virginia, 484 U.S. 1020 (1988).

Williams filed a habeas corpus petition in the Danville Circuit

Court on August 26, 1988. After a hearing, the Danville Circuit Court

dismissed the majority of Williams's claims. Almost seven years

later, Williams amended his habeas petition to include several claims

that his trial counsel were ineffective. In June 1995, the Danville Cir-

cuit Court held an evidentiary hearing on the issue of ineffective

assistance of trial counsel.

Prior to any action on the hearing, however, jurisdiction over the

habeas petition was transferred to the Virginia Supreme Court. See

Va. Code Ann. § 8.01-654(C)(1) (Michie Supp. 1998) (providing that

the Virginia Supreme Court has "exclusive jurisdiction" to consider

writs of habeas corpus with respect to prisoners under a death sen-

tence). By order dated May 6, 1996, the Virginia Supreme Court

directed the Danville Circuit Court to report its findings of fact and

conclusions of law relating to the ineffective assistance of counsel

claims addressed at the June 1995 evidentiary hearing. See id. (pro-

viding that the circuit court that entered the sentence of death may

conduct an evidentiary hearing "only if directed to do so by order of

the Supreme Court").

On August 15, 1996, the Danville Circuit Court forwarded its Find-

ings of Fact and Recommended Conclusions of Law (the Report) to

the Virginia Supreme Court. The Danville Circuit Court found that

trial counsel's "performance at the guilt phase of the trial was both

professional and competent." (J.A. at 1055.) Of particular importance

here, the Danville Circuit Court concluded that trial counsel properly

handled the court-appointed mental health experts, and that lead trial

counsel, E.L. Motley, was not suffering from a mental impairment

during the course of his representation of Williams.

The Danville Circuit Court did conclude, however, that trial coun-

sel's failure to present certain mitigating evidence during the sentenc-

ing phase of the trial warranted relief. Specifically, the Danville

Circuit Court found that trial counsel failed to investigate and present

(1) Williams's juvenile commitment records from the Beaumont Cor-

rectional Center, (2) records, including statements from Williams's

siblings, that provided a summary of Williams's early home life, (3)

the testimony of Williams's estranged wife and eleven-year-old

daughter, and (4) the testimony of Williams's friend Bruce Elliot.

According to the Report, had this evidence been developed and pre-

sented at the sentencing phase of Williams's trial, the jury would have

learned that Williams "had a deprived and abused upbringing; that he

may have been a neglected and mistreated child; that he came from

an alcoholic family; and that he was borderline mentally retarded."

(J.A. at 1059-60.) Continuing, the Report stated that the evidence in

question would have shown that Williams's "conduct had been good

in certain structured settings in his life (such as when he was incarcer-

ated) and . . . that he had redeeming qualities." (J.A. at 1060.) In sum-

mary, the Danville Circuit Court found that the mitigating evidence

probably would have been given weight by at least one member of the

jury. Because one juror would have been the difference between life

and death, the Report ultimately concluded that Williams was preju-

diced by trial counsel's failure to make use of the mitigating evidence.

Both the Commonwealth and Williams filed objections to the

Report. The Commonwealth argued that trial counsel were not inef-

fective during the sentencing phase of Williams's trial for making a

tactical decision not to introduce evidence that was just as likely to

operate to Williams's disadvantage. Williams, in contrast, argued that

the Danville Circuit Court erred in finding that his trial counsel were

effective during the guilt phase of his trial. On January 13, 1997, the

Virginia Supreme Court ordered briefing and argument on the one

issue that the Danville Circuit Court found warranted relief, and

adopted the Danville Circuit Court's recommendation that the other

claims be dismissed.

On June 6, 1997, the Virginia Supreme Court unanimously rejected

the Danville Circuit Court's finding that trial counsel's failure to pre-

sent certain mitigating evidence during the sentencing phase war-

ranted relief. See Williams v. Warden, 487 S.E.2d 194 (Va. 1997). In

so holding, the Virginia Supreme Court reviewed Williams's ineffec-

tive assistance of counsel claim under Strickland v. Washington, 466

U.S. 668 (1984), and, to a lesser extent, Lockhart v. Fretwell, 506

U.S. 364 (1993). After assuming that Williams's trial counsel's per-

formance was deficient, the Virginia Supreme Court concluded that

Williams failed to demonstrate prejudice.

On December 12, 1997, Williams filed a habeas corpus petition

pursuant to 28 U.S.C.A. § 2254 in the United States District Court for

the Eastern District of Virginia. In his petition Williams argued,

among other things, that his counsel were ineffective in several

respects. On April 7, 1998, the district court ordered that the writ be

granted on the ground that Williams's trial counsel were ineffective

for failing to present evidence in mitigation of punishment during the

sentencing phase of Williams's trial. In so ruling, the district court

specifically concluded that the Virginia Supreme Court's application

of Strickland and Lockhart was unreasonable. The remaining allega-

tions in Williams's habeas petition were dismissed.

On appeal, the Commonwealth contends that the district court erred

in granting Williams federal habeas relief. In particular, the Common-

wealth argues that the Virginia Supreme Court's conclusion that Wil-

liams's trial counsel were not ineffective was neither contrary to, nor

an unreasonable application of, clearly established Supreme Court

precedent. In his cross-appeal, Williams contends: (1) that his lead

trial counsel's mental illness rendered his assistance constitutionally

ineffective, and (2) that his trial counsel's failure to handle properly

several matters related to his court-appointed mental health experts

rendered their assistance constitutionally ineffective. We address the

Commonwealth's and Williams's arguments in turn.

II.

Before we address the merits of either the Commonwealth's appeal

or Williams's cross-appeal, we must first determine the applicable

standard of review. The Antiterrorism and Effective Death Penalty

Act of 1996 provides that:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was adju-

dicated on the merits in State court proceedings unless the

adjudication of the claim --

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

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

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

determination of the facts in light of the evidence presented

in the State court proceeding.

28 U.S.C.A. § 2254(d) (West Supp. 1998). We recently interpreted

subsection (1) to prohibit the issuance of the writ unless (a) the state

court decision is in "square conflict" with Supreme Court precedent

that is controlling as to law and fact or (b) if no such controlling deci-

sion exists, "the state court's resolution of a question of pure law rests

upon an objectively unreasonable derivation of legal principles from

the relevant [S]upreme [C]ourt precedents, or if its decision rests

upon an objectively unreasonable application of established principles

to new facts." Green v. French, 143 F.3d 865, 870 (4th Cir. 1998).

"In other words, habeas relief is authorized only when the state courts

have decided the question by interpreting or applying the relevant pre-

cedent in a manner that reasonable jurists would all agree is unreason-

able." Id.

Williams contends, however, that we erroneously construed § 2254

in Green v. French.3 Thus, Williams argues that the standard of

review adopted in that case should not be followed here. This argu-

ment need not detain us long. "It is well established that a decision

of this Court is binding on other panels unless it is overruled by a sub-

sequent en banc opinion of the Court or an intervening decision of the

United States Supreme Court." Smith v. Moore , 137 F.3d 808, 821

(4th Cir.) (citing Industrial Turnaround Corp. v. NLRB, 115 F.3d 248,

254 (4th Cir. 1997)), cert. denied, 119 S. Ct. 199 (1998). Neither the

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3 Williams also contends, albeit in a cursory fashion, that the Green v.

French standard of review violates both the Suspension Clause and Arti-

cle III of the Constitution. To the extent these claims are properly before

us, see Canady v. Crestar Mortgage Corp., 109 F.3d 969, 973 (4th Cir.

1997) (holding that issues not fully briefed are deemed waived on

appeal), the identical claims were raised and rejected in Green v. French,

143 F.3d 865, 874-76 (4th Cir. 1998).

en banc Court nor the United States Supreme Court has overruled (or

even called into question) the standard of review adopted by this

Court in Green v. French. Indeed, since Green v. French was decided,

we have applied the new standard in Fitzgerald v. Greene, 150 F.3d

357, 362 (4th Cir. 1998), Wright v. Angelone, 151 F.3d 151, 156 (4th

Cir. 1998), and Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.

1998). As a consequence, the standard of review enunciated in Green

v. French continues to be the binding law of this Circuit.

III.

Although the Virginia Supreme Court unanimously found that Wil-

liams's trial counsel were not ineffective, see Williams v. Warden,

487 S.E.2d 194, 200 (Va. 1997), the district court concluded that the

Virginia Supreme Court unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984), and Lockhart v. Fretwell, 506 U.S.

364 (1993), in finding no prejudice. In addition, the district court

found that the Virginia Supreme Court "made an error of fact in dis-

cussing its finding of no prejudice." (J.A. at 1102.) Finding that Wil-

liams's trial counsel were constitutionally ineffective for failing to

investigate, prepare, and present certain evidence in mitigation of

punishment during the sentencing phase of Williams's trial, the dis-

trict court ordered that the writ be granted.4 In contrast to the district

court, we conclude that the Virginia Supreme Court's finding of no

prejudice was neither based on an unreasonable application of the

tests set forth by the United States Supreme Court in Strickland and

Lockhart for determining prejudice, nor based on an unreasonable

determination of the facts in light of the evidence presented at the evi-

dentiary hearing held by the Danville Circuit Court.

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4 The district court identified the same allegedly mitigating evidence

cited by the Danville Circuit Court: (1) Williams's juvenile commitment

records from the Beaumont Correctional Center, (2) records, including

statements from Williams's siblings, that provided a summary of Wil-

liams's early home life, (3) the testimony of Williams's estranged wife

and eleven-year-old daughter, and (4) the testimony of Williams's friend

Bruce Elliot. In addition, the district court identified Williams's prison

commendations for returning a guard's wallet and for identifying mem-

bers of a prison drug gang. The Danville Circuit Court attached no sig-

nificance to Williams's prison commendations.

In Strickland, the Supreme Court established a two-part test for

reviewing claims of ineffective assistance of counsel. See Strickland,

466 U.S. at 690. First, Williams must demonstrate that his trial coun-

sel's performance fell below an objective standard of reasonableness.

See id. at 687-91. This, however, is no simple task. A court's review

of counsel's performance is "highly deferential." Id. at 689. Indeed,

courts must afford a strong presumption that counsel's performance

was within the wide range of professionally competent assistance. See

id. If Williams is able to demonstrate that his trial counsel's perfor-

mances were objectively unreasonable, he must then"show that there

is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at

694. As a result, Williams's trial counsel may be deemed ineffective

only if their "conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having pro-

duced a just result." Id. at 686.

In Lockhart, the Supreme Court clarified the meaning of prejudice

under Strickland. See Lockhart, 506 U.S. at 369-70. Although the

Supreme Court in Strickland focused primarily on whether "the result

of the proceeding would have been different," Strickland, 466 U.S. at

694, the Supreme Court in Lockhart clarified that "an analysis focus-

ing solely on mere outcome determination . . . is defective," Lockhart,

506 U.S. at 369. Instead, a proper prejudice analysis must consider

"whether the result of the proceeding was fundamentally unfair or

unreliable." Id. As a result, a court may not "set aside a conviction or

sentence solely because the outcome would have been different but

for counsel's error." Id. at 369-70.

The Virginia Supreme Court assumed, without deciding, that Wil-

liams's trial counsel's performance fell below an objective standard

of reasonableness. See Williams v. Warden, 487 S.E.2d 194, 198 (Va.

1997) (concluding that it was "easier to dispose of [Williams's] inef-

fectiveness claim on the ground of lack of sufficient prejudice"). The

district court, however, concluded that Williams's trial counsel were,

in fact, deficient. Like the Virginia Supreme Court, we will assume,

without deciding, that Williams's trial counsel were objectively

unreasonable in failing to investigate, prepare, and present certain evi-

dence in mitigation of punishment during the sentencing phase of

Williams's trial. Despite assuming that Williams's trial counsel were

objectively unreasonable in failing to introduce the evidence in ques-

tion, we cannot say that the Virginia Supreme Court's decision that

Williams was not prejudiced thereby was an unreasonable application

of the tests developed in either Strickland or Lockhart for determining

prejudice. The Virginia Supreme Court's analysis on this point is as

follows:

[Williams's argument] flies in the face of the Supreme

Court's admonition in Lockhart, [506 U.S. at 364], that "an

analysis focusing solely on mere outcome determination,

without attention to whether the result of the proceeding was

fundamentally unfair or unreliable, is defective."

We shall demonstrate that the criminal proceeding sen-

tencing defendant to death was not fundamentally unfair or

unreliable, and that the prisoner's assertions about the

potential effects of the omitted proof do not establish a "rea-

sonable probability" that the result of the proceeding would

have been different, nor any probability sufficient to under-

mine confidence in the outcome. Therefore, any ineffective

assistance of counsel did not result in actual prejudice to the

accused. The jury was presented with the murder of an

intoxicated, elderly person in his own bedroom committed

by a 31-year-old man. The murder weapon was a tool cus-

tomarily used to dig stumps. At the time, defendant had

been out of the penitentiary for only seven months, released

on parole for convictions of burglary and grand larceny.

The accused was in the midst of a crime spree, preying

upon defenseless individuals. Following commission of

these crimes of murder and robbery in November 1985, the

defendant savagely beat an elderly woman about her head

in March 1986, leaving her lying in the street unconscious

with multiple injuries. At the time of trial, she was in a nurs-

ing home "vegetating" from a brain injury with no hope of

recovery.

Upon being questioned in April and May 1986 about the

November 1985 crimes, the defendant admitted to the recent

theft of two motor vehicles. He also admitted setting fire to

clothes on the porch of a residence late one night in Decem-

ber 1985, luring the occupant outside, and stabbing him with

a knife in order to rob him. The accused later was convicted

of the vehicle thefts and, at the time of trial for the present

crimes, had been convicted of an arson that took place in the

city jail.

While held in jail on the present offenses, he related to a

police officer "that he wanted to just choke some of the guys

in the jail cell, and one day some had gone to the library and

one guy was laying on the bed, and he got the urge to just

go over and choke him. Another time he was playing cards

and he thought he could just hit someone and break that per-

son's jaw without him ever knowing what hit him."

The jury also heard that defendant had served time in the

penitentiary for an armed robbery committed when he was

about 20 years old. The jury did not know of 14 criminal

offenses committed by defendant from 1966 to 1975.

Drawing on Strickland, we hold that, even assuming the

challenged conduct of counsel was unreasonable, the pris-

oner "suffered insufficient prejudice to warrant setting aside

his death sentence," 466 U.S. at 698-99, the predicate of

which was that there is a probability that he would commit

criminal acts of violence which would constitute a continu-

ing serious threat to society. The mitigation evidence that

the prisoner says, in retrospect, his trial counsel should have

discovered and offered barely would have altered the profile

of this defendant that was presented to the jury. At most,

this evidence would have shown that numerous people,

mostly relatives, thought that defendant was nonviolent and

could cope very well in a structured environment. Of course,

those assumptions are belied by the four-month crime spree

beginning with the present crimes and by the defendant's

current attitude while in jail toward other inmates.

What the Supreme Court said in Strickland applies with

full force here: "Given the overwhelming aggravating fac-

tors, there is no reasonable probability that the omitted evi-

dence would have changed the conclusion that the

aggravating circumstances outweighed the mitigating cir-

cumstances and, hence, the sentence imposed." 466 U.S. at

700. Indeed, disclosure of the defendant's juvenile history

might even have been harmful to his case.

Williams v. Warden, 487 S.E.2d 194, 199-200 (Va. 1997).

According to the district court, the Virginia Supreme Court's appli-

cation of the Strickland prejudice standard was unreasonable because

there was a reasonable probability that at least one juror would have

concluded that the death penalty was not warranted had the evidence

in question been presented. (J.A. at 1099 (noting that Va. Code Ann.

§ 19.2-264.4(E) provides that a death sentence must be unanimous).)

For the reasons that follow, we disagree.

To the extent the district court suggests that a capital defendant

faces a less rigorous standard for determining prejudice than a non-

capital defendant, it is simply mistaken. A court may not assume that

one juror may be more likely swayed by mitigating evidence than his

fellow jurors. See Strickland, 466 U.S. at 695 (noting that a finding

of prejudice does not "depend on the idiosyncrasies of the particular

decision maker, such as unusual propensities toward harshness or

leniency"). Rather, the Strickland prejudice standard assumes twelve

reasonable, conscientious, and impartial jurors. Thus, that one hypo-

thetical juror might be swayed by a particular piece of evidence is

insufficient to establish prejudice.

Like the Virginia Supreme Court, we readily conclude that Wil-

liams was not prejudiced in any way by counsel's actions. Evidence

that Williams presented a future danger to society was simply over-

whelming. The murder of Mr. Stone was just one act in a crime spree

that lasted most of Williams's life. Indeed, the jury heard evidence

that, in the months following the murder of Mr. Stone, Williams sav-

agely beat an elderly woman, stole two cars, set fire to a home,

stabbed a man during a robbery, set fire to the city jail, and confessed

to having strong urges to choke other inmates and to break a fellow

prisoner's jaw. Because a significant portion of the allegedly mitigat-

ing evidence also painted Williams as a recidivist who was likely to

commit future offenses, the Virginia Supreme Court's conclusion that

there was not "a reasonable probability that, but for counsel's unpro-

fessional errors, the result of the proceeding would have been differ-

ent," id. at 694, was not unreasonable.

The district court also concluded that the Virginia Supreme Court's

application of Lockhart was unreasonable. Specifically, the district

court held that the prejudice standard developed in Lockhart applies

only in "`the unusual circumstance where the defendant attempts to

demonstrate prejudice based on considerations that, as a matter of

law, ought not to inform the inquiry.'" (J.A. at 1101 (quoting

Lockhart, 506 U.S. at 373 (O'Connor, J., concurring)).) Because Wil-

liams sought to demonstrate prejudice based on trial counsel's failure

to present mitigating evidence, which, by current law, Williams was

entitled to put before the sentencing jury, the district court determined

that the standard developed in Lockhart was inapplicable.

The district court, we believe, construed Lockhart far too narrowly.

Although Justice O'Connor would limit the prejudice analysis con-

tained in Lockhart to the "unusual" case, Chief Justice Rehnquist,

writing for the majority, made no such disclaimer. Indeed, as the

Lockhart majority made clear, the requirement that a criminal defen-

dant alleging prejudice show that the result of the proceeding was

unfair or unreliable was the rule, not the exception. See Lockhart, 506

U.S. at 369. In fact, the Supreme Court in Strickland concluded its

analysis by noting that the defendant "made no showing that . . . his

sentence was rendered unreliable," or that his"sentencing proceeding

was . . . fundamentally unfair." Strickland , 466 U.S. at 700. Thus,

Lockhart's emphasis on reliability and a fair trial simply clarified the

meaning of prejudice under Strickland. Accord United States v.

Prince, 110 F.3d 921, 925 (2d Cir.) (noting that"`analysis focusing

solely on mere outcome determination . . . is defective'" (quoting

Lockhart, 506 U.S. at 368)), cert. denied , 118 S. Ct. 188 (1997);

McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996) (stating that

the Supreme Court in Lockhart clarified the meaning of prejudice),

cert. denied, 117 S. Ct. 2422 (1997); Hayes v. Alabama, 85 F.3d

1492, 1496 (11th Cir. 1996) (stating that prejudice requires a showing

that counsel's errors deprived the defendant of a fair trial), cert.

denied, 117 S. Ct. 1262 (1997); United States v. Kissick, 69 F.3d

1048, 1055 (10th Cir. 1995) (noting that a criminal defendant must

demonstrate that counsel's performance rendered the proceeding

"fundamentally unfair or unreliable" to show prejudice); Flamer v.

Delaware, 68 F.3d 710, 728 (3d Cir. 1995) (noting that Lockhart's

fundamentally unfair or unreliable standard "clarified the meaning of

prejudice under Strickland").

In sum, the district court erred in construing Lockhart based solely

on Justice O'Connor's concurring opinion. The holding in Lockhart

-- that a criminal defendant must show that counsel's performance

rendered the proceeding fundamentally unfair or unreliable to estab-

lish prejudice -- is not limited to the "unusual" case. Indeed, the stan-

dard for prejudice set forth in Lockhart is not an exception to the

Strickland standard, but rather a clarification. We note that the Vir-

ginia Supreme Court's application of Lockhart was consistent with

how our sister circuits have applied the decision, and we cannot say

that the Virginia Supreme Court's reliance on Lockhart, in addition

to Strickland, rendered its ineffective assistance of counsel analysis

unreasonable under § 2254(d).

Finally, Williams contends that the Virginia Supreme Court errone-

ously applied a "weighing" analysis from Strickland in finding no

prejudice. Williams's argument is based on the following passage

from the Virginia Supreme Court's opinion:

What the Supreme Court said in Strickland applies with

full force here: "Given the overwhelming aggravating fac-

tors, there is no reasonable probability that the omitted evi-

dence would have changed the conclusion that the

aggravating circumstances outweighed the mitigating cir-

cumstances and, hence, the sentence imposed."

Williams, 487 S.E.2d at 200 (quoting Strickland, 466 U.S. at 700). For

the reasons that follow, we conclude that the Virginia Supreme Court

reasonably applied "clearly established federal law, as determined by

the Supreme Court of the United States," 28 U.S.C.A. § 2254(d)(1),

in rejecting Williams's ineffective assistance of counsel claims.

When a death sentence is supported by an invalid aggravating fac-

tor, whether the sentence of death may stand turns on whether the jury

was required to "weigh" the aggravating circumstances against the

mitigating circumstances. See Stringer v. Black , 503 U.S. 222, 232

(1992) (noting that in a nonweighing state the jury's reliance on an

invalid aggravating factor may not "infect the formal process of

deciding whether death is an appropriate penalty so long as the sen-

tencing body finds at least one valid aggravating factor"). As a result,

the term "weighing state" has become a term of art in capital cases.

See Clemons v. Mississippi, 494 U.S. 738, 752 (1990). Florida, for

example, is a weighing state, see Parker v. Dugger, 498 U.S. 308, 318

(1991), while Virginia is not, see Tuggle v. Netherland, 79 F.3d 1386,

1389 (4th Cir.), cert. denied, 117 S. Ct. 237 (1996). Because

Strickland involved a Florida defendant, Williams argues that only in

a "weighing state" may prejudice be determined by considering

whether the aggravating evidence outweighed the mitigating evi-

dence. We find this argument to be without merit.

First, there is no evidence that any portion of the Supreme Court's

prejudice analysis in Strickland was meant to apply only to "weighing

states," like Florida. Rather, we believe that the Supreme Court used

the term "outweighed" in its ordinary sense. Indeed, the term "weigh-

ing" did not become a term of art until six years after Strickland was

decided. See Clemons, 494 U.S. at 738 (applying "weighing" as term

of art in 1990). Second, this Court used the identical quotation from

Strickland in rejecting a South Carolina defendant's claim of preju-

dice in a capital case, see Plath v. Moore, 130 F.3d 595, 602 (4th Cir.

1997), cert. denied, 118 S. Ct. 1854 (1998), and South Carolina, like

Virginia, is not a weighing state, see Smith v. Moore, 137 F.3d 808,

815 (4th Cir.), cert. denied, 119 S. Ct. 199 (1998). In fact, this Court

recently used the identical quotation from Strickland in rejecting a

Virginia defendant's claim of prejudice in a capital case. See

Fitzgerald v. Greene, 150 F.3d 357, 368 (4th Cir. 1998) (noting that

"[i]n the context of challenging a death sentence, `the question is

whether there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of aggravating

and mitigating circumstances did not warrant death'" (quoting

Strickland, 466 U.S. at 695)). Based upon the foregoing, we cannot

say that the Supreme Court of Virginia's rejection of Williams's

claim was an unreasonable application of Strickland.

The district court also concluded that the Virginia Supreme Court

"made an error of fact in discussing its finding of no prejudice." (J.A.

at 1102.) Specifically, the district court took exception with the Vir-

ginia Supreme Court's characterization of the allegedly mitigating

evidence as "mostly relatives, [who] thought the defendant was non-

violent and could cope well in a structured environment." Williams,

487 S.E.2d at 200. The district court criticized the Virginia Supreme

Court for failing to mention the possible testimony of Williams's

friend Bruce Elliot and several state correctional officers, and for

overlooking evidence dealing with Williams's difficult childhood and

limited mental capacity.

Despite the contentions of the district court to the contrary, the Vir-

ginia Supreme Court accurately described the omitted mitigation evi-

dence that was credited by the Danville Circuit Court after the two-

day evidentiary hearing. The Danville Circuit Court only identified

Williams's estranged wife, daughter, siblings, mother, and friend

Bruce Elliot as possible witnesses whose testimony"was worthy of

a jury's consideration." (J.A. at 1060.) Thus, the Virginia Supreme

Court's description of the witnesses as "mostly family members" was

reasonable.5 Moreover, the Virginia Supreme Court's description of

the nature of their testimony was also reasonable. The affidavits of

Williams's family members attempt to portray him as nonviolent.

Similarly, Williams's friend Bruce Elliot described Williams as non-

violent, proud of his accomplishments, and able to thrive in a struc-

tured environment. Because the Virginia Supreme Court's decision

was not based on an unreasonable determination of the facts in light

of the evidence presented at the evidentiary hearing held by the Dan-

ville Circuit Court, the district court erred in granting the writ. See 28

U.S.C.A. § 2254(d)(2) (West Supp. 1998).

_________________________________________________________________

5 In an effort to prove that the witnesses who could have testified at

Williams's sentencing hearing were not "mostly relatives," counsel for

Williams provided this Court, pursuant to Local Rule 28(f) and Fed. R.

App. P. 28(j), with the names of fifteen potential witnesses, only seven

of whom were relatives of Williams. Despite counsel's efforts, we note

that the Danville Circuit Court identified (at most) six omitted witnesses,

only one of whom was not a relative. The overwhelming majority of

nonrelative witnesses listed by counsel were never identified, much less

credited, by the Danville Circuit Court. Accordingly, it comes as no sur-

prise that the Virginia Supreme Court failed to consider those witnesses.

IV.

In his cross-appeal, Williams contends that his trial counsel were

ineffective in several respects. First, Williams argues that his lead trial

counsel was mentally ill. Second, Williams argues that his trial coun-

sel mishandled several matters related to his court-appointed mental

health experts. We address these arguments in turn.

Almost one year after Williams's trial, his lead trial counsel, E.L.

Motley, Jr., was diagnosed with depression. Soon thereafter, Motley's

depression rendered him incapable of practicing law. In fact, after a

series of complaints to the Virginia Bar, Motley was forced to surren-

der his license. In his habeas petition, Williams contends that his

Sixth Amendment right to effective assistance of counsel was violated

because Motley was mentally impaired during his trial.

It is well established that the Sixth Amendment right to counsel

"cannot be satisfied by mere formal appointment." Avery v. Alabama,

308 U.S. 444, 446 (1940). Rather, the Sixth Amendment guarantees

criminal defendants the assistance of "a reasonably competent attor-

ney." McMann v. Richardson, 397 U.S. 759, 770-71 n.14 (1970). As

a consequence, an attorney's mental incapacity may violate his cli-

ent's Sixth Amendment right to counsel. Here, however, the Danville

Circuit Court specifically found, after a two-day evidentiary hearing,

that Motley was not acting under a mental or emotional disability dur-

ing Williams's trial:

Petitioner alleges that he was denied his Sixth Amend-

ment right to counsel because E.L. Motley, Jr.[,] was men-

tally impaired and unable to effectively represent him in the

preparation, trial and appeal of his complex, capital murder

case. This court has heard evidence relating to this claim,

but finds that Motley was not acting under a mental or emo-

tional disability during the course of his representation of

Williams. Specifically Motley did not begin to have prob-

lems related to his depression until the late spring or early

summer of 1987. Williams' case was tried in 1986. His brief

on direct appeal was filed in March, 1987. The opinion of

the Supreme Court of Virginia was issued in September,

1987.

It is clear that what problems Motley did have thereafter

did not manifest themselves during the trial of this case.

Motley prioritized his work by placing the criminal matters

ahead of civil matters, and capital murder cases receiving

the highest priority. Both Motley and Smitherman prepared

the appellate brief, after being counsel in the trial of these

cases.

During the two years that he knew Motley, Smitherman

never noticed anything about Motley during the course of

Williams' trial. Smitherman did not begin to notice a differ-

ence in Motley's behavior until 1988. Smitherman noticed

no sign of any dysfunction in Motley during the time of

their joint representation of Williams.

Based on the testimony at the evidentiary hearing, and on

the personal observations of this Court during the course of

the criminal trial, this Court finds that E.L. Motley was act-

ing under no disability during the course of his representa-

tion of the petitioner. Furthermore, to the extent that any

claim presented by the petitioner herein is based on the men-

tal problems suffered by Mr. Motley, such claims lack merit.

In fact, at no time during the trial did Motley exhibit any

conduct which would lead one to believe he was suffering

from any disability.

(J.A. at 1022-24.) The Virginia Supreme Court adopted the Danville

Circuit Court's finding and dismissed Williams's Sixth Amendment

claim.

The finding that Motley's legal work was not adversely affected by

his depression until after the conclusion of Williams's trial and appeal

is entitled to a presumption of correctness in this federal habeas cor-

pus proceeding. See 28 U.S.C.A. § 2254(e)(1) (West Supp. 1998). We

cannot say that the Danville Circuit Court's findings, which were

adopted by the Virginia Supreme Court, are "an unreasonable deter-

mination of the facts in light of the evidence presented." 28 U.S.C.A.

§ 2254(d)(2) (West Supp. 1998). As a result, Williams's claim is

without merit and was properly dismissed by the district court.

On July 10, 1986, Dr. Centor was appointed by the trial court to

examine Williams after Williams's counsel intimated that he "may

lack substantial capacity to understand the proceedings against him or

to assist his attorney in his own defense." (J.A. at 1038.) Dr. Ryans,

although not specifically appointed by the trial court, assisted Dr.

Centor in evaluating Williams at the Central State Hospital. On

August 13, 1986, Dr. Centor filed a report with the trial court that

dealt solely with Williams's competency to plead. During the sentenc-

ing phase, Dr. Ryans and Dr. Centor were called by the Common-

wealth as witnesses. Both doctors testified, based solely on

Williams's criminal history, that Williams represented a future danger

to society.

In his habeas petition Williams contends that his trial counsel mis-

handled several matters related to Dr. Ryans and Dr. Centor, the

court-appointed mental health experts. Specifically, Williams asserts

that trial counsel: (1) failed to object to the dual appointment of men-

tal health experts, (2) failed to use the court-appointed experts in vio-

lation of Ake v. Oklahoma, 470 U.S. 68 (1985), (3) failed to bar the

Commonwealth's use of the court-appointed experts, and (4) failed to

rebut the court-appointed experts' damaging testimony.

First, Williams claims that trial counsel were ineffective because

they failed to object to the dual appointment of mental health experts.

In response, the Commonwealth argues that the claim is procedurally

defaulted because it was never presented to the Virginia state courts,

and, in the alternative, is without merit. We agree with the Common-

wealth that this claim was procedurally defaulted. As a result, we

decline to address the merits.

"In the interest of giving state courts the first opportunity to con-

sider alleged constitutional errors occurring in a defendant's state trial

and sentencing," a state prisoner must "exhaust" all available state

remedies before he can apply for federal habeas relief. Matthews v.

Evatt, 105 F.3d 907, 910 (4th Cir.), cert. denied, 118 S. Ct. 102

(1997); see also 28 U.S.C.A. § 2254(b) (West Supp. 1998) (barring

the granting of habeas corpus relief "unless it appears that the appli-

cant has exhausted the remedies available in the courts of the State");

Rose v. Lundy, 455 U.S. 509, 518 (1982) ("The exhaustion doctrine

is principally designed to protect the state courts' role in the enforce-

ment of federal law and prevent disruption of state court proceed-

ings."). To exhaust state remedies, a habeas petitioner must present

the substance of his claim to the state's highest court. See Anderson

v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404

U.S. 270, 275-78 (1971); Matthews, 105 F.3d at 911. A procedural

default occurs when a habeas petitioner fails to exhaust available state

remedies and "the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement would

now find the claims procedurally barred." Coleman v. Thompson, 501

U.S. 722, 731-32 (1991).

It is undisputed that Williams failed to present the substance of this

claim to the Virginia Supreme Court.6 As a result, Williams failed to

satisfy the exhaustion requirement. Moreover, if this claim was pre-

sented to the Virginia Supreme Court for the first time at this junc-

ture, it would be procedurally barred pursuant to Va. Code Ann.

§ 8.01-654(B)(2) (Michie Supp. 1998). Under§ 8.01-654(B)(2), "a

petitioner is barred from raising any claim in a successive petition if

the facts as to that claim were either known or available to petitioner

at the time of his original petition." Hoke v. Netherland, 92 F.3d 1350,

1354 n.1 (4th Cir.) (internal quotation marks omitted), cert. denied,

117 S. Ct. 630 (1996); see also Va. Code Ann. § 8.01-654(B)(2) ("No

writ [of habeas corpus] shall be granted on the basis of any allegation

the facts of which petitioner had knowledge at the time of filing any

previous petition."). Accordingly, we conclude that this claim is pro-

_________________________________________________________________

6 Williams does not contend that the facts underlying this claim were

either unknown or unavailable to him at the time he filed his amended

habeas corpus petition in the Danville Circuit Court.

cedurally defaulted. See Gray v. Netherland, 116 S. Ct. 2074, 2080-81

(1996).

We may excuse Williams's procedural default, however, if he can

demonstrate either cause for and resulting prejudice from the default,

or that he has suffered a fundamental miscarriage of justice. See

Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977) (holding that if the

petitioner can show cause for the state procedural default, and preju-

dice resulting therefrom, the federal courts can address the issue's

merits); Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (stating that

where a petitioner has suffered a fundamental miscarriage of justice

a decision on the merits is appropriate without regard to a procedural

default). Because Williams has not established either, his claim is not

cognizable in a federal habeas petition. See Coleman, 501 U.S. at 750.

Next, Williams claims that trial counsel were ineffective for failing

to use the court-appointed experts in violation of Ake. Like Wil-

liams's first claim, this claim was never raised in state court and,

therefore, is procedurally defaulted. Because Williams cannot demon-

strate cause for and resulting prejudice from the default, or that he has

suffered a fundamental miscarriage of justice, this claim is not prop-

erly before us on federal habeas review. See Gray, 116 S. Ct. at 2080-

81.

Next, Williams asserts that trial counsel were ineffective for failing

to prevent the Commonwealth from calling his court-appointed

experts as witnesses.7 In particular, Williams contends that his trial

_________________________________________________________________

7 Williams does not contend that his Sixth Amendment right to counsel

was violated when the Commonwealth called as witnesses his court-

appointed experts. In Smith v. Moore, 137 F.3d 808 (4th Cir.), cert.

denied, 119 S. Ct. 199 (1998), we were recently asked to determine

whether "the Sixth Amendment is violated when the State calls a

defense-retained psychiatrist as a rebuttal witness." Id. at 819. Because

answering that question in the affirmative would have created a new rule

of constitutional law, we had no occasion to consider it in a habeas peti-

tion. See id. at 820-21.

counsel should have objected when Dr. Ryans and Dr. Centor testified

that he was a future danger to society. As the district court noted,

however, Virginia law does not necessarily bar testimony from court-

appointed experts. Indeed, the testimony is admissible so long as the

expert does not use "statements or disclosure" made to him by the

defendant as part of the basis for forming his opinion on future dan-

gerousness. See Va. Code Ann. § 19.2-264.3. Because the experts'

testimony was not based on any statements Williams made but rested

solely on Williams's criminal record, any objection would have been

futile. As such, trial counsel's performance was simply not deficient.

Accordingly, the Virginia Supreme Court's rejection of the claim can-

not be deemed an unreasonable application of Strickland.8

Finally, Williams argues that trial counsel were ineffective for fail-

ing to rebut the damaging testimony of his court-appointed experts.

In essence, Williams is upset that trial counsel were unable to find an

expert who supported his theory of the case. This Court has made

clear, however, that a criminal defendant does not have a right to

favorable expert testimony. See Waye v. Murray , 884 F.2d 765, 766-

67 (4th Cir. 1989). Thus, that trial counsel were unable to rebut the

damaging testimony of his court-appointed experts does not render

their assistance ineffective.

Because Williams has failed to provide any grounds upon which

habeas relief may be granted, the decision of the district court is

affirmed in part and reversed in part.

AFFIRMED IN PART AND REVERSED IN PART

_________________________________________________________________

8 The Danville Circuit Court also found that Williams's prior criminal

activity alone was more than sufficient to support a finding of future dan-

gerousness. We agree. As a result, the testimony of Dr. Ryans and Dr.

Centor to the same effect was not prejudicial. Thus, even if trial coun-

sels' performance was deficient, it would not warrant relief under

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

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