King v. Greene ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DANNY LEE KING,
Petitioner-Appellant,
v.
No. 97-28
FRED W. GREENE, Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-93-641-R)
Argued: March 4, 1998
Decided: April 20, 1998
Before WIDENER and MOTZ, Circuit Judges, and CLARKE,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Richmond, Virginia, for
Appellant. Robert Quentin Harris, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: Mark Evan Olive, Tallahassee, Florida, for
Appellant. Richard Cullen, Attorney General of Virginia, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury found Danny Lee King had beaten, kicked, choked and
stabbed a woman to death; the state court, on recommendation of the
jury, sentenced King to death. After pursuing direct appeals and seek-
ing post-conviction relief from the state courts, King petitioned for
federal habeas relief. The district court denied his petition, and we
affirm.
I.
A.
On June 14, 1991, a jury convicted King of murder, robbery, and
two counts of forgery and uttering. All charges stemmed from the
brutal murder of Carolyn Horton Rogers on October 11, 1990. The
jury recommended a term of life imprisonment plus 40 years for the
noncapital offenses. After a separate sentencing hearing, the jury
found both future dangerousness and vileness, statutory aggravating
factors under Va. Code § 19.2-264.4(c) and recommended a death
sentence for the murder conviction. The state trial court considered
King's presentence report and then imposed the sentences recom-
mended by the jury.
On April 17, 1992, the Virginia Supreme Court affirmed the con-
victions and the death sentence. King v. Commonwealth, 416 S.E.2d
669 (Va.), cert. denied sub nom., King v. Virginia, 506 U.S. 957(1992).
2
On June 11, 1993, King filed an amended petition for state post-
conviction relief with the Circuit Court for Roanoke County. The
petition was transferred to the Virginia Supreme Court, in accordance
with Va. Code § 8.01-654(c)(1). On March 14, 1996, that court dis-
missed the amended petition.
The Commonwealth of Virginia scheduled King's execution for
July 8, 1996. Five days before the scheduled execution date, the Dis-
trict Court for the Eastern District of Virginia stayed the execution
pending King's application for federal habeas relief. On July 11,
1996, King's case was transferred to the Western District of Virginia;
six weeks later, that court appointed counsel for King. On January 24,
1997, King filed his application for a writ of habeas corpus. On
August 4, 1997, without holding an evidentiary hearing, the district
court issued a well reasoned, 75-page, memorandum opinion denying
the writ. After the court denied King's motion for reconsideration, he
appealed to this court.
B.
The Virginia Supreme Court recounted the facts of the case and
some of the evidence presented at trial:
The record shows that on October 1, 1990, King was
released on parole from imprisonment for a prior offense.
On October 8, he and Becky Hodges King, with whom he
had entered into a bigamous marriage in January of 1989,
stole a van from a used car lot in Chesterfield County. They
then traveled to the home of King's mother in Christians-
burg, where Becky had been staying during King's impris-
onment.
On October 11, King and Becky rode in the van to Roanoke
and went to a residential area known as Kings Chase. As
they drove around, Becky wrote on a yellow pad the names
and telephone numbers of three real estate agents whose
signs were displayed on vacant houses. Carolyn Horton
Rogers was one of the agents whose name and telephone
number Becky wrote down.
3
From a nearby shopping center and at King's direction,
Becky used the name "Mrs. Keaton" and telephoned Ms.
Rogers' office. She told the person who answered that "[she
and her husband] wanted to see a house in Kings Chase."
When informed Ms. Rogers was not in, Becky placed a call
to the Rogers home. Ms. Rogers agreed to show the house
in Kings Chase, and she left home about 10:00 a.m. to keep
the appointment.
When Ms. Rogers did not return home or appear at her
office, her son and two of her co-workers began looking for
her. After 5:00 p.m., one of the co-workers entered the
vacant house Ms. Rogers had agreed to show and found her
body in the basement furnace room, lying face down in a
pool of blood. She had been beaten, choked, stomped upon,
and stabbed. A ring and an earring had been forcibly
removed from her body and were missing, along with other
jewelry. Ms. Rogers' automobile was found at a nearby
shopping mall.
On the afternoon of the same day, three checks, forged by
King and drawn on Ms. Rogers' account, were presented
and cashed by Becky at Roanoke area banks. On the same
afternoon, Becky pawned Ms. Rogers' ring at a local pawn-
shop.
Four days later, King and Becky were arrested in the stolen
van in New Philadelphia, Ohio. At the time of his arrest,
King spontaneously told Ohio police officers: "[Becky]
doesn't know anything about this. I'm the one you want."
****
In addition to the evidence previously recited, the record
shows that King and Becky met Ms. Rogers at the vacant
house in Kings Chase and introduced themselves as"Danny
and Becky Keaton." Ms. Rogers showed them through the
house, and the three of them eventually reached the base-
ment. There, Becky asked King for a cigarette. He said he
4
did not have any, and he suggested she get one from their
van. Becky left and was gone "a few minutes."
What happened after Becky left was disclosed by the testi-
mony of Vincent Austin Lilley, one of the attorneys
appointed to represent Becky on her capital murder charge.
On November 2, 1990, Lilley accepted a collect telephone
call from King, who was calling from the Powhatan Correc-
tional Center. King told Lilley that "[t]his thing with Becky
is, insane . . . because [she] did not do what she's charged
with." When Lilley pointed out that Becky had cashed Ms.
Rogers' checks and that the police had Becky "on file doing
that," King said "she cashed checks because if she wouldn't
have, [he] would have broken her damn neck, or she
believed that." King asked Lilley to visit him, saying that
what he wanted to talk with Lilley about "is the fact that [he,
King, was] the one that should be charged with it." Lilley
agreed to visit King, and he went to the correctional center
on November 6 for that purpose.
On that date, King told Lilley that he was a member of "a
Hell's Angels . . . motorcycle gang" and that Ms. Rogers'
killing was a contract killing, murder for hire, that was set
up before he got out of the penitentiary. He said"a guy
named Smoky" contacted him after his release from prison
and asked for his help with "a hit." Smoky knew Ms. Rogers
was a real estate agent and he wanted to have her show a
vacant house because she was "the focus of this murder for
hire." Smoky "had [already] been paid." However, Ms. Rog-
ers was supposed to have at least $1,000 in her checking
account and King "could get whatever he wanted off of Mrs.
Rogers."
The plan was to have Becky call Ms. Rogers to arrange the
meeting at the vacant house. King boasted to Lilley that he
owned Becky, that she was his "property," and that "[if he]
told her to do something, that was it." Lilley asked King
how he knew Becky "didn't kill Ms. Rogers." At that point,
King "took a little piece of paper . . . and he wrote . . . in
capital letters I D-I-D . . . and . . . he said, I did."
5
According to the plan, Smoky was supposed to "come
creeping down the stairs and get in the basement," then King
was to get Ms. Rogers to the basement and "knock her out
to the point of unconsciousness," after which Smoky would
"take her to another place and complete the contract killing."
King told Lilley he did strike and choke Ms. Rogers until
she was unconscious, but he did not stab her. Smoky
appeared from the garage area and told King: "[T]hat's good
enough. You've done your part." The last thing King saw
was Smoky pulling Ms. Rogers' sweater "up over her head."
On December 6, Lilley, accompanied by John Gregory, Jr.,
Becky's co-counsel, and George Harris, III, Lilley's investi-
gator, again visited King, this time at the Buckingham Cor-
rectional Center. After going over some forms with King,
Lilley was about to introduce Gregory and Harris when
King "just burst out, let's cut the b___ s ___, I stabbed Caro-
lyn Rogers to death. Becky had nothing to do with it. Now,
what do you want to know?"
King reiterated that Ms. Rogers' death was a result of a con-
tract killing, and he described how a contract killing is
arranged. He went on to say that after Becky left to get a
cigarette from the van, he asked Ms. Rogers "some question
. . . and at that point he took his fist and hit her[on] the left
side of her face." He continued striking her and then choked
her and threw her against the basement wall. When she
started falling to the floor, he grabbed her by the throat,
"squeezed very, very hard," and threw her to the floor. Ms.
Rogers was "semiconscious [and] moaning" and he grabbed
her at the waist. When he pulled on her limp body,"a
sweater type . . . of thing . . . came up, and . . . he could see
her brassiere." She must have thought he was going to rape
her because "all of a sudden she reached . . . upward into his
groin area . . . and squeezed hard." He then removed a knife
from his boot and thrust it "in an upward fashion. . . into
her chest and that was how he killed her." King directed
Becky to drive Ms. Rogers' car to a nearby shopping mall
and said he would be right behind her. When King reached
the mall, he "wiped down" Ms. Rogers' car to remove any
6
fingerprints. He and Becky then left the mall in the van and
thereafter cashed the checks forged on Ms. Rogers' account
and pawned the ring stolen from her.
King, 416 S.E.2d at 670-671,674-675.
II.
King initially challenges the constitutionality, as applied, of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Congress enacted that statute effective April 24, 1996; it amends the
federal habeas corpus statute. 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998). Chapter 153 of the Act provides for certain changes in
the standards of federal court habeas review of all state court convic-
tions. § 2254(d). Chapter 154 creates new procedures for federal
habeas review of petitions filed by inmates sentenced to death in
states that merit statutory "opt-in" requirements. § 2254(b). The dis-
trict court held that the Commonwealth of Virginia did not meet the
"opt-in" requirements and so refused to apply Chapter 154 of the Act
in King's case. The Commonwealth does not appeal that determina-
tion.
The district court did apply the Chapter 153 amendments, holding
that they applied to all petitions filed after April 24, 1996. See Lindh
v. Murphy, ___ U.S. ___, 117 S. Ct. 2059, 2068 (1997). King
launches a series of arguments asserting that the district court erred
in doing so, that the AEDPA is unconstitutional as applied, and that
the district court misinterpreted it. We need not reach these arguments
because King has not raised a single ground that provides a basis for
habeas relief, even under the pre-AEDPA standards of review. See
Satcher v. Pruett, 126 F.3d 561, 567 n.2 (4th Cir. 1997). Accordingly,
we turn to examination of King's contentions under pre-AEDPA law.
III.
King maintains that, on several occasions, the Commonwealth
obtained statements from him in violation of his rights to remain
silent and to counsel.
7
A.
King made his first statement to Detective James Lavinder on
October 16, 1990. Lavinder had traveled to Ohio with a warrant
charging Becky King with capital murder when he spoke with King,
who was detained at the Carroll County jail. King was being held for
violation of parole, and Lavinder advised King of his Miranda v.
Arizona, 384 U.S. 436 (1966), rights before the two spoke for approx-
imately half an hour. Lavinder made a short telephone call and then
began another conversation with King. Before this second conversa-
tion began, Lavinder again advised King of his Miranda rights. They
talked for 40 to 50 minutes this time, and King reiterated his denial
of any involvement in Carolyn Rogers's death. Their conversation
ended when King told Lavinder, "I think I better not say anything else
until I talk to an attorney."
King asserts that this constituted a request for counsel and that
because the Commonwealth failed to honor this request, every subse-
quent statement that he made to law enforcement officers is inadmis-
sible. The Virginia Supreme Court held that King had waived this
contention because "in argument following the close of evidence at
the suppression hearing, defense counsel did not once mention the
October 16 incident." King, 416 S.E.2d at 671. Instead, he maintained
that it was "`clear that . . . the request for counsel took place on
November 1st.'" Id. King asserts that"[t]his description is factually
wrong," Brief of Appellant at 35, and that the district court's defer-
ence "to the Supreme Court of Virginia's finding of procedural
default . . .`was not reasonable'" because that court never "`adjudi-
cated [this claim] on the merits.'" Id. at 21.
King's argument is meritless -- the Virginia Supreme Court fully
adjudicated the issue on the merits. As the district court noted,
"[b]ecause the Virginia Supreme Court found the claim barred under
state law, the claim is procedurally barred" from federal habeas
review. See Coleman v. Thompson, 501 U.S. 722, 728 (1991). More-
over, our independent review of the record convinces us that the Vir-
ginia court's conclusion was correct. At the suppression hearing,
defense counsel did, as King maintains, elude to his statement to Offi-
cer Lavinder -- and the only statement King made to Lavinder took
place on October 16. So, contrary to the Virginia Supreme Court's
8
statement, the "October 16 incident" was "mentioned" at the suppres-
sion hearing, if only implicitly. But review of the record unquestion-
ably reveals the truth of the Supreme Court's larger point -- that King
never argued at the suppression hearing that he had requested counsel
on October 16 but instead asserted he had requested counsel on
November 1. King's suppression hearing attorney stated that King
"requested an attorney on November 1," and then again that "the
request for counsel took place on November 1." Therefore, the state
court did not err in ruling that King waived any argument that he
invoked his right to counsel on October 16.
B.
On October 18, two days after Lavinder and King's discussion,
Detective Ken Kern talked with King in the basement of the Carroll
County jail. Kern advised King of his Miranda rights and then
showed King the items of clothing that had been seized from the van.
Specifically, Kern singled out a particular shirt with a button missing;
King stated that he "had never seen it before and it wasn't his." This
episode lasted five minutes.
Although it is not absolutely clear, King apparently argues that the
statements made during this short conversation should have been sup-
pressed. The Virginia Supreme Court held that King had waived this
argument because he "failed to list this statement in his motion to sup-
press and did not include it in his argument at the suppression hear-
ing." King, 416 S.E.2d at 671 n.1. (relying on Va. Rule 5:25).
Accordingly, the claim is procedurally barred from habeas review.
Coleman, 501 U.S. at 728. Moreover, our de novo review again con-
vinces us that the record fully supports this holding.
C.
Two weeks later, on November 1, 1990, Detectives Kern and
Patrone went to the Powhatan Correctional Center where King was
being held on parole violations (he had not yet been charged in con-
nection with Rogers' murder) to execute a court order to take King's
hair and blood samples and fingerprints. The Assistant Warden
escorted the detectives to King's room and told King the detectives
could answer any questions he might have. Before the officers could
9
show King the court order or ask him any questions, King asked them
what was taking them so long to "drop warrants" on him and stated
that Becky was not involved in the Rogers death, adding that she
would "follow a puppy dog." Detective Kern advised King of his
Miranda rights and explained that the officers were executing a court
order to obtain the samples. King indicated that he understood his
rights and refused to sign a waiver. He said that the officers would
not find anything because he was "too good." King then volunteered
to make a statement if he was provided with an attorney, at a meeting
with the police, a prosecutor, his attorney, Becky, and Becky's attor-
ney. The officers responded by telling King that he was not charged
with any crimes related to Rogers' murder so they"could not" provide
him an attorney; however, they also told him that he could retain an
attorney on his own.
King made several more statements while the officers collected the
samples. He told the detectives that they should be fingerprinting
other people. The detectives responded that they knew that only three
people -- King, Becky, and Rogers -- were in the house at the time
of the murder. To this, King replied that the people he mentioned,
who the officers should be fingerprinting, "had nothing to do with this
offense."
Eight days later, on November 9, the officers transported King to
Roanoke County jail in order to take foot impressions and to conduct
a handwriting analysis. Before transporting King, Officer Patrone
again provided King with his Miranda rights. While the police took
the samples, King told Kern, "[i]f you got questions, just ask me."
Kern then proceeded to ask King about the murder. King denied kill-
ing Rogers. However, he made several incriminating statements. For
example, he acknowledged being with Rogers and Becky in the house
where the murder occurred; he claimed that a man named "Dude" had
Rogers on the floor when he left the house. King also admitted that
he took Rogers' checks and jewelry.
After providing this account, King reiterated his desire to make a
statement before a prosecutor, Becky, Becky's lawyer, and counsel
appointed for him. The officers then contacted an Assistant Common-
wealth Attorney, who went to King and told King that he was willing
10
to listen. King repeated his earlier account and acknowledged that he
might be "pulling the trigger" on himself in telling this story.
King maintains that under Edwards v. Arizona, 451 U.S. 477(1981), the statements that he made on November 1 and 9 should not
have been admitted at trial because he requested counsel on both
occasions. The Virginia Supreme Court rejected this argument -- and
with good reason. See King, 416 S.E.2d at 360-62.
In Edwards, the Supreme Court held that when an accused has
invoked his Fifth Amendment, Miranda right to have counsel present
during custodial interrogation, all interrogation must cease until coun-
sel is made available "unless the accused himself initiates further
communications, exchanges, or conversations with the police."
Edwards, 451 U.S. at 484-85. Subsequently, the Court clarified that
an Edwards right can only be invoked by an"unambiguous[ ] request
for counsel." Davis v. United States, 512 U.S. 452, 461 (1994).
As the Virginia Supreme Court ruled, King, 416 S.E.2d 672-73,
King's statements during the November conversations concerning his
desire to meet with several people including "an attorney for himself"
simply do not constitute an "unambiguous request for counsel."
Davis, 512 U.S. at 455; see also McNeil v. Wisconsin, 501 U.S. 171,
177-79 (1991) (statement must reasonably be construed to "express[ ]
a desire for the assistance of an attorney in dealing with custodial
interrogation by the police").
In addition, despite the fact that King was in custody, the Novem-
ber conversations between King and the detectives were not interro-
gations for the purposes of Miranda or Edwards. See Rhode Island v.
Innis, 446 U.S. 291, 300 (1979) ("Interrogation . . . must reflect a
measure of compulsion above and beyond that inherent in custody
itself"). The detectives were executing court orders when they met
with King on November 1 and 9; in neither of these encounters did
the detectives meet with King in order "to elicit an incriminating
response." Id. at 301.
Moreover, King initiated the November 9 conversation-- telling
the police "[i]f you got questions, just ask me." In doing so, King
waived his Fifth Amendment rights. See Solem v. Stumes, 465 U.S.
11638, 640-41 (1984). (Arguably, in asking the police what was taking
them so long "to drop warrants" on him on November 1, King may
have initiated that conversation as well.)
King also argues that the officers misinformed him of his right to
counsel on November 1 when they told him that they could not pro-
vide him with counsel before he was charged. King does not contest
the fact that the officers had the "option" either to provide counsel or
to cease interrogation, however, he argues that they only told him that
they "could not" provide counsel. See Reply Brief at 23-24. King
never raised this claim at trial, on direct appeal, or in his state habeas
petition. It is, therefore, defaulted. See Gray v. Netherland, 116 S. Ct.
2074, 2080 (1996). In any case, the information the officers provided
King was accurate, albeit not complete. Had King indicated that he
did not want to discuss anything with the officers unless he was pro-
vided with an attorney, he would have been invoking his Fifth
Amendment right to counsel, and the officers would either have to
provide him with an attorney or cease questioning him. See Edwards,
451 U.S. at 481 (requiring the police "to inform the suspect of his
right to counsel and to cease questioning immediately if the suspect
wants legal aid"). But King did not do this. Rather, as noted above,
he waived that right. Furthermore, as the police accurately related to
King, he had no Sixth Amendment right to counsel until he was for-
mally charged with the crimes. See Kirby v. Illinois, 406 U.S. 682,
687-88 (1972). The district court properly concluded, "[n]othing in
the record suggests that the police deliberately delayed the initiation
of formal criminal proceedings in order to deprive King of access to
an attorney or intentionally misrepresented King's constitutional
rights."
King also maintains that he did not make a knowing, intelligent and
voluntary waiver of his right to counsel during the November conver-
sations with the officers. However, nothing in the record indicates that
King's decision to continue his discussions with the officers was
coerced or manipulated. Rather, the Virginia Supreme Court accu-
rately pointed out that after each occasion in which King mentioned
the possibility of being appointed counsel, King initiated subsequent
conversation with the officers. King, 416 S.E.2d at 673; cf. Edwards,
451 U.S. at 483 (noting that a individual can waive his right to either
12
be appointed an attorney or terminate the questioning if he initiates
further conversation).
D.
Even if admission of King's October and November statements to
the police constituted error, under binding circuit precedent that error
would be harmless. In Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir.
1996) (en banc), we held that admission of a defendant's lengthy,
detailed, and tape-recorded confession was harmless, even though that
confession was recognized as determinative of the verdict by the trial
judge and provided most of the basis of the prosecutor's closing argu-
ment. We concluded that, in view of two short and poorly recollected
prior confessions and certain circumstantial evidence, admission of
the tape recorded statement did not have "a substantial and injurious
effect or influence in determining the jury's verdict." Id. at 370 (quot-
ing Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
King maintains that his case is different than Cooper's; he's correct
-- it is different, and substantially weaker than Cooper's case. The
two "differences" King offers are: (1) his asserted Edwards violations
occurred before he made any incriminating statements, while Coo-
per's occurred after an incriminating statement and (2) his statements
were used to impeach his trial testimony, while Cooper's were not.
King does not cite a single case holding that these differences are con-
stitutionally significant. They are not. Rather, the fundamental inquiry
in determining whether a state trial error is harmless on federal habeas
review is whether it had a "substantial and injurious effect or influ-
ence on the jury's verdict." Brecht, 507 U.S. at 658. Only if a judge
"is in grave doubt about the likely effect of an error on the jury's ver-
dict" does a habeas petitioner prevail. O'Neal v. McAnninch, ___ U.S.
___, 115 S. Ct. 992, 995 (1995). We have no such grave doubt here.
In his October and November 1 statements, King simply denied all
involvement in the murder. Admission of those statements clearly did
not substantially and injuriously affect the jury's verdict, particularly
when considered with the mountain of other evidence incriminating
King.
In his November 9 statements to the police, King did link himself
to the murder, but his statements to Becky's attorneys, Lilley and
13
Gregory, were far more damaging. In none of the statements made to
the police -- not even the November 9 statement-- did King confess
to the murders; in both of his statements to Becky's counsel, he did.
In fact, during King's second visit with Becky's attorneys on Decem-
ber 6, 1990 he stated: "Let's cut the bullshit. I stabbed Carolyn Rog-
ers to death." This followed his prior admission in a November 6
conversation with them, when he wrote "I did" in response to their
questions as to how he knew that Becky had not killed Rogers. Fur-
ther, King's first confession to Becky's lawyers was made prior to the
statement made to the officers on November 9. (Thus, one of the
asserted "differences" between King's and Cooper's case disappears).
King followed this admission with a later, even fuller, confession to
Becky's lawyers on December 6. Considering these graphic, detailed,
and dramatic confessions and the physical evidence linking King to
the murder with the assertedly, illegally admitted statements made to
the police officers, utterly convinces us that the statements to the
police had no substantial or injurious effect on the jury's verdict.
IV.
King also contends that he was denied the right to conflict-free
counsel and to proceed pro se in violation of the Sixth, Eighth, and
Fourteenth Amendments. Because King failed to raise either claim on
direct appeal or in his state habeas petition, he has failed to exhaust
them. See Gray, 116 S. Ct. at 2080-81. However, we need not dismiss
the claims without prejudice to permit King to exhaust his state reme-
dies, because, for the reasons set forth by the district court, these non-
exhausted claims are barred from review in state court. See id. More-
over, as outlined below, both claims are also meritless.
A.
"[A] defendant who desires to invoke his right to self-
representation, thereby waiving his right to counsel, must do so
`clearly and unequivocally.'" See Fields v. Murray, 49 F.3d 1024,
1029 (4th Cir. 1994) (en banc) (quoting United States v. Reddeck, 22
F.3d 1504, 1510 (10th Cir. 1994)). King never did this. Rather, after
he had been convicted of these brutal crimes, King asked the court for
permission to represent himself until "other counsel [could] be
appointed to represent" him. Indeed, when he argued this motion,
14
King requested the appointment of new counsel. Nor, contrary to his
contentions before us, did King unequivocally state his desire to pro-
ceed pro se and waive his right to counsel in his pro se brief to the
Supreme Court of Virginia. In that brief, King asked the court to con-
sider the arguments "in his pro se brief in addition to any appeal filed
in his behalf by counsel." Thus, King never made clear that he truly
wanted to proceed pro se. Moreover, even King's equivocal request
to proceed pro se until counsel could be appointed did not occur until
after the guilt phase of his trial. For this reason, the decision of
whether to permit him to discharge counsel and to proceed pro se was
well within the trial court's discretion. See Bassette v. Thompson, 915
F.2d 932, 939-42 (4th Cir. 1990) (finding criminal defendant has no
constitutional right to represent himself on appeal); United States v.
Gillis, 773 F.2d 539, 560 (4th Cir. 1985) (same). Accordingly, even
if King had clearly expressed his wish to proceed pro se on appeal,
his argument that the court's refusal to permit this violated his consti-
tutional rights would be meritless.
B.
King's claim with respect to his right to conflict-free counsel is
equally unpersuasive. In his pro se brief to the Virginia Supreme
Court, King never raised a constitutional challenge that he was denied
conflict-free counsel. Nor did he raise this issue in his state habeas
petition. Accordingly, federal habeas relief is barred. See Gray, 116
S. Ct. at 2080-81.
Moreover, even if King had preserved the claim of a conflict with
his counsel, it is meritless. The crux of this claim is that defense coun-
sel "had not presented the case in the manner that King wished, to the
point of directing King to perjure himself on the stand." Brief of
Appellant at 39. The alleged perjury concerned King's testimony
about "stomping" the victim. After two experts had opined that
King's boots had left very distinctive marks on the victim's head,
King's counsel advised him that denying the stomping in view of this
strong evidence would risk conviction and the death penalty. King
reluctantly followed this advice and testified that he did not remember
the stomping, when actually, he asserts, he remembered that he did
not stomp the victim.
15
King's claim is not really one that counsel had a conflict with his
interest. Cf. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). In fact, it
is clear that counsel were acting in what they perceived to be King's
interest in giving this advice. Rather, King's claim constitutes a dis-
agreement with his counsel's trial tactics. Indeed, when he responded
to his counsel's motion to withdraw, King contended simply that he
disagreed with the trial tactics of his counsel:"counsel was not pre-
senting the defense he wished presented to the Court." Moreover, as
noted above, King did not assert that he was denied conflict-free
counsel in this response, nor did he raise this issue in his state post-
conviction pleadings. Thus, King's real contention seems to have
been that he disagreed with his counsel's trial strategy. Such a claim
is not one for conflict-free counsel but for deprivation of effective
assistance of counsel. See United States v. Leggett, 81 F.3d 220, 227
(D.C. Cir. 1976). As such, it must fail because King cannot demon-
strate this aspect of counsel's representation was either deficient or
prejudicial.
V.
King argues that he was denied his constitutional right to effective
assistance of counsel. The Supreme Court has articulated a two-part
test to examine an ineffective assistance claim. Strickland v.
Washington, 466 U.S. 668 (1984). First, a defendant must demon-
strate that the performance of his trial counsel failed to meet an objec-
tive standard of reasonableness. Id. at 688-89. Second, a defendant
must show that this failure resulted in prejudice, i.e., that there is a
reasonable probability that the outcome of the trial would have been
different without his counsel's errors. Id. Determinations regarding
the effectiveness of counsel involve mixed questions of fact and law
that we review de novo. Smith v. Angelone, 111 F.3d 1126, 1131 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 118 S. Ct. 2 (1997).
A.
King maintains that his trial counsel should have argued in his
motion to suppress that King requested counsel on October 16, rather
than exclusively asserting King requested counsel on November 1.
First, as the district court observed, counsel's decision to focus on
the November 1 request made sense strategically. The October state-
16
ments made by King did not damage his case, rather, in them, he
denied his involvement in the crimes. Thus, counsel did not have the
same incentive to suppress the October statements as he did those
made in November. Accordingly, counsel's failure to focus on the
October 16, rather than November 1, well may not be deficient at all.
Moreover, even if counsel did err in not focussing on the asserted
invocation of counsel on October 16, King cannot demonstrate any
prejudice resulting from this action. In none of the statements King
made to the officers did he admit that he committed the murder.
Rather, his multiple confessions were made to Becky's lawyers. Fur-
thermore, in King's October and November 1 statements, he denied
any involvement in the murder. Moreover, his November 9 statement
(in which he did make damaging admissions concerning his involve-
ment in the crimes) would have been admissible even if King's attor-
ney had successfully argued that he had requested counsel on October
16 and the state trial court had excluded the October and November
1 statements because King initiated the November 9 conversation
with the officers.
King also argues that his counsel's failure to make the argument
that King had not intelligently, knowingly and voluntarily waived his
right to counsel or to end the conversations with the officers consti-
tuted ineffective assistance of counsel. As we discussed previously,
the substance of King's claim concerning waiver is meritless. The
record does not provide evidence that King's decision to continue to
initiate discussions with the officers was involuntary or somehow
coerced. Since King's arguments concerning waiver lack merit, his
counsel was not deficient in failing to make this argument.
B.
King next contends that his counsel erred in failing to maintain that
King enjoyed an attorney-client relationship with Becky's counsel,
Lilley, such that his communications to Lilley were privileged.
The record reflects that Lilley informed King on several occasions
that he represented Becky, not King. In fact, in their first conversa-
tion, Lilley stated "I'm not your lawyer." In addition, on November
6, 1990, King executed a waiver, which Lilley had prepared, that
17
memorialized that King knew Lilley was acting solely for Becky: "I
understand that Vincent A. Lilley represents Becky Hodges King and
that he will protect her interests, and not mine." After Lilley went
over the waiver word for word with King, King signed it. The two
men then talked for approximately two and one-half hours, and during
that discussion King confessed to the murder.
The day after that conversation, King called Lilley once again.
Becky's other counsel, Jack Gregory, also took part in this telephone
conversation. Gregory reiterated that he and Lilley represented
Becky's interests only, and King acknowledged this. During the
course of that conversation King asked Gregory and Lilley how he
should deal with the media, and Lilley replied,"I don't represent you.
I represent Becky . . . And you've got to get your own lawyer to give
you advice because I'm not on the same side of this thing with you."
Gregory supported this statement by remarking to King, "[W]e're on
opposite side of the fence," and encouraged King to get his own coun-
sel. Later in the conversation, King told Becky's attorneys:
I'm very well aware of y'alls major purpose in this thing. I
am very well aware of the fact in more ways than one we
are on opposite sides of the fence because of the fact that uh,
y'alls main concern, if anything, would be to hang me if that
would protect Becky.
King telephoned Lilley and Gregory once again on December 3,
1990. He initially told them that he understood that they were acting
solely as Becky's counsel, and then they arranged a meeting for
December 6. An investigator accompanied Lilley and Gregory when
they met with King at Buckingham Correctional Center for that meet-
ing. At its outset, King signed another waiver acknowledging that Lil-
ley and Gregory did not represent his interests.
The record indicates that King had an interest in contacting Lilley
precisely because he was Becky's attorney, and King wanted to help
Becky. But regardless of King's motivation for contacting Becky's
counsel, the record is clear that King understood that Lilley and Greg-
ory did not represent his interests.
The district court noted that perhaps King's strongest argument
concerning attorney-client privilege would have been under the "com-
18
mon interest" rule, which recognizes the need of defendants charged
with the same crime to discuss with each other the pursuit of a joint
defense. See, e.g., Hicks v. Commonwealth, 439 S.E.2d 414, 415 (Va.
1994). However, as the district court pointed out, even if King had
made this argument, it would have been rejected because King's dis-
cussions with Becky's counsel were not made to pursue a joint-
defense or "with any reasonable understanding that the communica-
tions would remain confidential."
For all of these reasons, counsel for King did not perform unrea-
sonably in not pursuing the attorney-client privilege claim.
C.
King also asserts that his counsel's representation was ineffective
during the penalty phase of the trial because counsel failed to develop
mitigating evidence concerning King's childhood. King argues that
his attorney should have investigated and documented the abuse he
suffered as a child, particularly the physical and emotional abuse
King received from his father. According to King, this included "se-
vere beatings, including the use of electrical cords, belts and sticks,
which caused deep welts and cuts, bleeding, and excruciating pain."
Brief of Appellant at 49.
We note at the outset that King's counsel did in fact present evi-
dence of King's abusive childhood. King's mother, Anna Mae King,
testified that King's father drank alcohol and abused King both physi-
cally and verbally. According to Mrs. King, the abuse began when
King was a baby and continued throughout his childhood. She testi-
fied that after one of the beatings King received from his father, his
back was bloody and covered with welts. Thus, although further fam-
ily testimony undoubtedly would have added more details, it might
well have simply been cumulative.
Furthermore, whether or not counsel should have presented more
extensive evidence of the abuse King suffered as a child, not present-
ing such further evidence did not prejudice King. In fact, more such
evidence might have harmed King's defense. As the Commonwealth
points out, the jury might have interpreted such a history of abuse as
evidence that King would be dangerous in the future. Cf. Penry v.
19
Lynaugh, 492 U.S. 302, 324 (1989) (noting that such evidence of
abuse may "indicate[ ] that there is a probability that he will be dan-
gerous in the future"); Barnes v. Thompson , 58 F.3d 971, 980 (4th
Cir. 1994) (history of abuse may indicate future dangerousness). In
this regard, counsel provided a defense psychologist who stated that
while incarcerated King did not pose a danger to others. Including
more extensive testimony of King's background of being abused
could have undermined defense counsel's argument at sentencing that
King would not pose a danger in prison. This is particularly true in
view of the fact that none of the three experts who submitted affida-
vits for King in state court, support his contention that the effects of
his abuse were "readily treatable."
In addition, King's argument that his counsel should have pres-
ented testimony concerning King's good behavior in prison is merit-
less. King maintains that his counsel should have obtained the
testimony of his prison work supervisors, who he argues would have
testified that during his previous incarcerations they permitted King
to retain dangerous tools in his cell and to perform repair work out-
side the perimeter wall of the prison. King also notes that his counsel
did not put on the testimony of a prison guard whose life King helped
save. He argues that this testimony and the testimony of a witness
"with special experience and knowledge in reviewing and analyzing
a prisoner's corrections records" would have helped "explain" his
prison record. Reply Brief at 29.
King's counsel, however, did provide evidence of King's record in
prison and introduced the contents of the prison guard's letter con-
cerning the incident in which King helped save his life. This evidence
provided an understandable description of King's behavior during his
previous incarcerations. The addition of further testimony would have
been cumulative. Moreover, there is no reasonable probability that the
outcome at sentencing would have been different had such evidence
been introduced. See Strickland, 466 U.S. at 691.
D.
King also maintains that counsel should be held ineffective for not
objecting to the verdict form presented to the jury and the sentencing
instructions. He argues that the jury could have been misled into
20
believing that it had to impose the death penalty if it found one of the
two aggravating factors present.
When viewed in their entirety, however, the court's instructions
and the verdict form provided adequate guidance to the jury. King's
argument ignores the portion of the instructions in which the court
stated:
If you find from the evidence that the Commonwealth has
proved beyond a reasonable doubt either of the two alterna-
tives, and as to that alternative you are unanimous, then you
may fix the punishment of the defendant at death or if you
believe from all the evidence that the death penalty is not
justified, then you shall fix the punishment of the defendant
at life imprisonment.
(emphasis added).
This instruction clearly provided the jury with discretion not to
impose the death penalty even if it found aggravating factors present.
Moreover, in maintaining that his counsel was deficient, King fails to
recognize that his counsel offered alternative sentencing instructions
with respect to the jury's ability to recommend a life sentence, but the
court refused to provide these instructions because the matter was
adequately covered.
King's contention that the jury may have interpreted the instruc-
tions so as to require unanimity if it recommended a life sentence is
foreclosed by Evans v. Thompson, 881 F.2d 117, 123-24 (4th Cir.
1989), cert. denied, 497 U.S. 1010 (1990). There, we held that an
instruction such as the one provided in this case accurately reflects
Virginia law. Id. The failure of defense counsel to object to such
instructions does not constitute ineffective assistance of counsel.
King also maintains that the aggravating factors considered in this
case -- vileness and future dangerousness -- are unconstitutionally
vague. He asserts that his counsel's failure to challenge the constitu-
tionality of these aggravating factors constituted ineffective assistance
of counsel. We disagree. We have previously upheld the constitution-
21
ality of both vileness and future dangerousness as aggravating factors.
See Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1990);
Giarratano v. Procunier, 891 F.2d 483, 489 (2d Cir. 1989). Based on
this precedent, counsel clearly was not deficient in failing to raise
such a challenge.
VI.
King contends that the trial court violated his rights under the
Eighth and Fourteenth Amendments when it denied him the opportu-
nity to rebut the state's evidence as to his future dangerousness by
presenting evidence that if he received a life sentence he would not
be eligible for parole for thirty years.
In Simmons v. South Carolina, 512 U.S. 1564 (1994), the Supreme
Court held that if the government seeks the death penalty based on a
defendant's future dangerousness a capital defendant has a due pro-
cess right under the Fourteenth Amendment to provide evidence indi-
cating his ineligibility for parole. Id. There are two reasons why
Simmons does not support King's claim. First, Simmons was a case
in which the defendant was ineligible for parole as a matter of law;
subsequent cases have limited Simmons to that realm. See Ingram v.
Zant, 26 F.3d 1047, 1054 n.5 (11th Cir.), cert. denied, 513 U.S. 1167(1995). King does not maintain that he was ineligible for parole as a
matter of law. Therefore, Simmons provides no assistance to him.
Second, Simmons' ruling in 1994 announced a"new rule" of proce-
dural constitutional law. See O'Dell v. Netherland, 117 S. Ct. 1969(1997) (holding that Simmons rule was a new rule that could not be
used to disturb habeas petitioner's death sentence). As the Court
explained in Teague v. Lane, 489 U.S. 288, 300-01 (1989), a "new
rule" is not to be applied retroactively on habeas appeal. With regard
to King's assertion of an Eighth Amendment (rather than Fourteenth
Amendment) right, the district court correctly pointed out that we
recently held that to extend the Simmons rule to the Eighth Amend-
ment would be to create a "new rule." O'Dell v. Netherland, 95 F.3d
1214, 1238 n.13 (4th Cir.), aff'd, 117 S. Ct. 1969 (1997).
22
VII.
King makes several arguments that he was denied his due process
rights and effective assistance of counsel because evidence exonerat-
ing him was not introduced at trial.
A.
King claims that his counsel should have developed evidence to
demonstrate that Becky, not he, killed Rogers. He contends that there
is exculpatory evidence that would have supported his theory that this
was a "contract murder." Specifically, King claims that his counsel
failed to obtain a "package of materials" that exonerated him by indi-
cating that Becky killed Mrs. Rogers in an effort to settle a drug debt.
The record provides no support for this argument. The Common-
wealth presented evidence that several real estate agencies received
telephone calls from Becky seeking to have an agent show her a
house. In addition, the Commonwealth introduced a legal pad, found
in King's van, which listed the names of contact information of three
real estate agents in the area. This evidence contradicts King's asser-
tions that Becky specifically wanted to kill Mrs. Rogers.
In addition, this argument was presented in King's federal habeas
petition for the first time and thus has not been exhausted. Moreover,
as the district court pointed out, Virginia law prevents a defendant
from raising a claim in an additional habeas petition unless the facts
giving rise to this claim were not known by or available to the defen-
dant at the time he filed his initial habeas petition. Va. Code Ann.
§ 8.01-654(B). As the district court concluded, King has failed to
allege "any particularized facts demonstrating that the facts giving
rise to his claims were unknown or unavailable to him at the time he
filed his first habeas petition." Accordingly, this claim is both unex-
hausted and procedurally defaulted. See Gray, 116 S. Ct. at 2080-81.
B.
King also maintains that his counsel "failed to develop and present
serological and forensic evidence showing that King was not in the
23
presence of the victim when she was killed." Brief of Appellant at 63.
Specifically, King focuses on the boots that left footprints in blood at
the scene of the crime and marks on Mrs. Roger's head.
Detective Kern testified that King had acknowledged that the boots
were his. The Commonwealth's expert opined that even though no
blood was found on the boots, fresh blood can readily wash away in
water. Moreover, the Commonwealth provided evidence that it rained
on the day of the murder. Another state expert testified that King's
boots, or a pair identical to them, had left multiple marks on Mrs.
Roger's head.
King's counsel had obtained funds to retain an expert to evaluate
the evidence regarding the bootprints on Mrs. Roger's head. How-
ever, as the district court noted, this expert, while not as convinced
as the Commonwealth's expert that the marks on Mrs. Roger's head
came from the boots, informed King's counsel that he believed the
boots "appeared to match the marks on the victim's head." King now
argues that his counsel only had this expert review the Common-
wealth's photographs of the evidence, and these photographs had
been altered and did not possess a scale. See Brief of Appellant at 30.
Thus, King maintains that his counsel did not have the expert examine
the actual evidence.
However, this argument ignores the fact that the Commonwealth's
expert had enlarged the photographs in an effort to better analyze
them and used these photographs in determining that King's boots
caused the prints on Mrs. Roger's head. In addition, there is no evi-
dence that King's expert stated that he needed to view the actual evi-
dence in order to make such a determination. Thus, counsel's decision
not to pursue further inquiries with respect to this forensic and sero-
logical evidence or to challenge such evidence at trial was a reason-
able tactical decision, clearly not one that was deficient.
VIII.
For all of these reasons, the judgment of the district court is, in all
respects
AFFIRMED.
24