Graham v. Angelone ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDRE L. GRAHAM,
Petitioner-Appellant,
v.
No. 99-4
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-97-270-2)
Argued: June 10, 1999
Decided: September 13, 1999
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished opinion. Judge
Traxler wrote the opinion, in which Judge Widener and Judge Nie-
meyer joined.
_________________________________________________________________
COUNSEL
ARGUED: Larry W. Shelton, SHELTON & MALONE, P.C., Nor-
folk, Virginia; Jeffrey Lance Stredler, HOFHEIMER NUSBAUM,
P.C., Norfolk, Virginia, for Appellant. Donald Richard Curry, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee. ON BRIEF: Linda S.
Laibstain, HOFHEIMER NUSBAUM, P.C., Norfolk, Virginia; Rob-
ert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Richmond, Virginia, for Appellant. Mark L.
Earley, 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Unpublished opinions are not binding precedent in this circuit.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
TRAXLER, Circuit Judge:
Andre L. Graham appeals an order of the district court denying his
application for a writ of habeas corpus in which he sought to set aside
his conviction and death sentence for the execution-style murder of
Sheryl Stack. Graham also shot Stack's companion Edward Martin in
the head, but Martin survived and testified against Graham at trial.
The district court granted Graham a certificate of appealability on
five of his claims and denied the certificate with respect to the
remaining claims.1 See 28 U.S.C.A. § 2253(c) (West Supp. 1999). We
affirm the district court's disposition of the claims for which the cer-
tificate was granted; we deny Graham's motion for the certificate on
the remaining claims and dismiss the appeal as to them.
_________________________________________________________________
1 The district court granted the certificate with respect to the following
claims: (1) that his defaulted claims should be reviewed based on a
showing of actual innocence under Schlup v. Delo , 513 U.S. 298 (1995);
(2) that the verdict forms supplied to the jury unconstitutionally mandate
the imposition of the death penalty; (3) that Virginia's "future dangerous-
ness" aggravating factor is unconstitutionally vague; (4) that trial counsel
rendered ineffective assistance in the failure to interview and adequately
cross-examine a key witness; and (5) that trial counsel was ineffective in
failing to move for a mistrial or a continuance upon discovering poten-
tially exculpatory evidence at trial.
2
I.
The Virginia Supreme Court thoroughly summarized the evidence
as follows:
After finishing their work at the Steak and Ale Restaurant
... in south Richmond on the night of October 7, 1993, Stack
drove her Volvo sedan and Martin drove his red sports car
to another restaurant in Richmond where they had some-
thing to eat. James Jones, the night auditor of a motel adja-
cent to the Steak and Ale Restaurant parking lot, was
standing outside the motel talking to another employee
when he saw Stack and Martin return to the parking lot after
2:00 a.m. on October 8. Jones noticed Stack and Martin
standing beside one of the two cars talking and kissing until
Jones returned to work inside the motel. Twenty to twenty-
five minutes later, Jones heard two loud noises,"two or
three seconds [apart], maybe up to ten seconds" and saw a
third car being driven from the area.
When Jones looked toward the parking lot, he noticed that
the Volvo's engine was running and its lights were on, but
that the red sports car was gone. As he walked toward the
Volvo, Jones noticed a body lying on the ground and imme-
diately called the police.
Harold Giles, a Richmond Police officer ... got Jones's call
... and ... found Stack and Martin, both shot in the head,
lying face down in a pool of blood, with their hands touch-
ing. Giles testified that "they were trying to communicate to
each other, but I couldn't make out what they were saying."
In addition to observing that the Volvo's engine was run-
ning and its lights were on, Giles also noticed that the front
passenger door was open....
When Detective Thomas R. Searles arrived at the scene at
"approximately" 6:00 a.m., Stack and Martin had been taken
to the hospital.... One photograph of the front seat of Stack's
car shows that it had been ransacked, with Stack's personal
property and purse in disarray in the front seat. Searles
3
found a .45 caliber cartridge case and two .45 caliber bullets
that were approximately one foot apart.
Stack was comatose when she arrived at the hospital and
died some time later without regaining consciousness.
Although Martin had been shot in the head and suffered
extensive brain injuries, he survived and was able to testify.
Dr. William Broaddus, a neurosurgeon who treated Martin,
testified that the bullet ... damaged the left side of his brain,
resulting in Martin's loss of his left eye, a partial paralysis
on the right side of his body, and an impairment in his abil-
ity to generate language. However, Dr. Broaddus said that
Martin's comprehension, memory, and intelligence were
perfectly normal....
Martin testified that he and Stack were seated in her car in
the parking lot when a man Martin later identified from a
photographic spread as Graham approached the car. Graham
had a gun and told them to get out of the car. After Stack
and Martin got out of the car, Graham told Martin to hand
over his wallet and car keys to another man who was with
him, but unarmed. As Graham held "the gun on[Stack and
Martin]," the other man first got in Stack's car and started
it, then got in Martin's car, where ... the other man "saw"
Martin's compact disc recordings (CDs). While the other
man was in Martin's car, Graham told Stack and Martin that
if they would lie down on the parking lot and close their
eyes, he would not hurt them. Even though both did as they
were directed, they were each shot in the head as they lay
on the ground with their eyes closed.2
_________________________________________________________________
2 Authorities suspected Mark Sheppard, a friend of Graham's, to be
Graham's accomplice. Graham, too, asserts that Sheppard was his
accomplice. And, the Commonwealth suggested during summation at the
close of the guilt phase of trial that Sheppard was the other assailant.
Indeed, the two had a history of violent crime together. Sheppard was
convicted of capital murder and sentenced to death for the murders of
Richard and Rebecca Rosenbluth. See Sheppard v. Commonwealth, 464
S.E.2d 131 (Va. 1995). Graham also was convicted of capital murder in
the Rosenbluth murders, but he received a life sentence. See Graham v.
Commonwealth, 464 S.E.2d 128 (Va. 1995). Sheppard, however, was not
charged in connection with the murder of Sheryl Stack.
4
Although Martin does not remember how long it was after
he closed his eyes that he was shot, Graham was the last
person Martin saw with a gun before he closed his eyes.
After he was shot, Martin realized that his "car was being
started and the car was coming at [him] so[he] quickly
rolled over to get out of the way of the car." After they were
shot, Stack and Martin were holding hands and he was try-
ing to talk to her.
Priscilla Booker, who had been living with Graham ... since
early July 1993, testified that on the morning of Stack's
murder, she saw Graham in the same red car as that shown
in a police photograph of Martin's car. Later that morning,
as Booker was watching the news on a local television sta-
tion, she mentioned to Graham the reports of the shooting
in the Steak and Ale parking lot. Graham's response was,
"why do [you] worry about other people."
Graham then asked Booker to stop looking at the news and,
when she continued to do so, he became upset. When
Booker asked Graham why she should not watch the news,
he replied that "he knew who did it[,] but he didn't."
Two or three days after the Stack murder, Booker found
Martin's box of over 200 CDs in the trunk of her car. Gra-
ham told her that he had bought these CDs for $10, and
Booker put them in storage. The police recovered Martin's
car a few days after the crimes, but were unable to obtain
any useful fingerprint evidence from it.
On the morning of December 3, 1993, Graham, who was
incarcerated in the Chesterfield County jail on another
charge, made a telephone call to Booker in the presence of
Gary McGregor, a Chesterfield County deputy sheriff. Gra-
ham told Booker several times during the conversation to
"go into the closet, get the bag with the contents and get rid
of it." McGregor immediately reported this conversation to
his superiors. Shortly thereafter, Detective W.F. Showalter
of the Chesterfield County Police Department went to
5
Booker's apartment. There he found a .45 caliber pistol in
a plastic bag in a linen closet.
The gun was heavily oiled, and the police were unable to
recover any fingerprints from it. However, Booker testified
that she had seen the transaction in which Graham had
obtained the gun in September 1993, and that since that
time, Graham had kept it in his constant possession. Booker
testified that Graham even slept with it. After examining the
gun, the bullets, and the cartridge case found at the scene,
Ann Davis Jones, a firearms identification expert, testified
that Graham's gun was the weapon from which the bullets
and the cartridge case found at the scene had been fired and
ejected.
The police found Martin's CDs in a storage locker rented by
Booker's mother. The CDs were examined by Leland W.
Kennedy, a fingerprint expert, who testified that 31 of the
48 identifiable fingerprints found on the CDs were those of
Graham.
Graham v. Commonwealth, 459 S.E.2d 97, 98-100 (Va. 1995) (alter-
ations in original) (footnote added).
Graham was indicted on eight felony counts arising out of the
shootings: one for capital murder of Stack with a deadly weapon dur-
ing the commission of Martin's robbery; one for attempted robbery
of Stack; two for Martin's robbery and malicious wounding; and four
for the use and display of a firearm in a threatening manner during
the commission of these four felonies. See id. at 97.
Following the guilt phase of trial, the jury convicted Graham of all
eight counts, including capital murder. The court then conducted a
two-part sentencing phase of trial. The first part, during which the
Commonwealth introduced evidence of Graham's prior convictions,
was directed to Graham's non-capital convictions. The jury fixed Gra-
ham's sentence at life imprisonment for the aggravated malicious
wounding, 25 years for the robbery, 10 years for the attempted rob-
bery, and a total of 15 years for three of the firearms convictions.
6
The second part of the sentencing phase of trial was to determine
Graham's sentence for the capital murder conviction. The Common-
wealth introduced evidence that Graham used the same.45 caliber
handgun in committing the capital murder of Rebecca Rosenbluth,
who was shot in the head. See Graham, 464 S.E.2d at 128-29. The
jury then fixed Graham's punishment at death, finding (1) that Gra-
ham was a continuing serious threat to society (the"future dangerous-
ness" predicate), and (2) that Graham's murder of Stack was "vile" in
that it involved "depravity of mind" (the"vileness" predicate). See
Va. Code Ann. § 19.2-264.4C (Michie Supp. 1999). The jury also
imposed another five-year sentence for using or displaying in a threat-
ening manner a firearm while committing the capital murder of Sheryl
Stack. After considering a post-sentencing probation report, the trial
court imposed the death sentence in accordance with the jury's ver-
dicts.
The Supreme Court of Virginia affirmed Graham's convictions and
sentences on direct appeal. See Graham v. Commonwealth, 459
S.E.2d 97 (Va. 1995). Graham then petitioned unsuccessfully for a
writ of certiorari in the United States Supreme Court. See Graham v.
Virginia, 516 U.S. 997 (1995).
Next, Graham pursued collateral relief in state court. The attorney
initially appointed by the Commonwealth to guide Graham through
state habeas proceedings withdrew from his representation of Graham
on October 19, 1995. A second attorney was appointed to serve as
Graham's state habeas counsel; however, he did not learn of his
appointment until January 22, 1996, four days before Graham's state
habeas petition was due. Subsequently, Graham's counsel was permit-
ted to amend his initial habeas petition, which was filed on July 2,
1996. The amended petition raised three grounds for relief: that Gra-
ham's trial counsel rendered ineffective assistance; that the Common-
wealth had failed to provide Graham's trial counsel with exculpatory
material pursuant to Brady v. Maryland, 373 U.S. 83 (1963); and that
Graham was denied a meaningful and rational review of his death
sentence on direct appeal.
The Virginia Supreme Court granted the Commonwealth's motion
to dismiss in a one-paragraph order, applying the rule in Slayton v.
Parrigan, 205 S.E.2d 680 (Va. 1974), to Graham's Brady claim and
7
his rational review claim, and finding "no merit" with respect to Gra-
ham's ineffective assistance of counsel claims. Thus, the court
ordered that Graham's petition be dismissed. Graham's motion for a
rehearing was denied.
In August 1997, having found no relief in state court and having
exhausted his remedies there, Graham filed an application for federal
habeas relief. See 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999).3
The district court referred the application to a United States Magis-
trate Judge, who recommended that Graham's § 2254 application be
dismissed. The district court agreed that Graham was not entitled to
relief under § 2254, denied his request for an evidentiary hearing, and
denied the § 2254 application. Graham then filed this appeal.
II.
Graham first presses a number of arguments directed at the district
court's interpretation and application of § 2254, as amended by the
AEDPA. Because these arguments apply generally to all of his
claims, we consider them together at the outset.
A.
First, Graham contends that the district court erred in interpreting,
and then applying, § 2254(d), which precludes federal habeas relief
on any claim "adjudicated on the merits in State court proceedings,"
unless the state court rendered a decision that was: (1) "contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States"
or (2) "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." We have
explained, as the district court rightly observed, that federal habeas
_________________________________________________________________
3 Graham's state habeas petition was filed after July 1, 1992, the date
that Virginia purports to have satisfied the opt-in provisions triggering
the default provisions under § 107 of the Antiterrorism and Effective
Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat.
1214. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996). Nev-
ertheless, Virginia does not argue that these provisions should apply
here.
8
relief under § 2254(d) is allowed "only when the state courts have
decided the question by interpreting or applying the relevant prece-
dent in a manner that reasonable jurists would all agree is unreason-
able." Green v. French, 143 F.3d 865, 870 (4th Cir. 1998), cert.
denied, 119 S. Ct. 844 (1999).
Graham contends that § 2254(d), as interpreted in Green and
applied here, contravenes Article III, the Supremacy Clause, and the
Suspension Clause of the United States Constitution. None of these
claims are novel; we have rejected them all before. See Williams v.
Taylor, 163 F.3d 860, 865 n.3 (4th Cir. 1998), petition for cert.
granted, 119 S. Ct. 1355 (1999); Green , 143 F.3d at 874-76 (rejecting
Article III and Suspension Clause arguments); Mueller v. Angelone,
No. 98-31, 1999 WL 387369, at *10-11 (4th Cir. June 14, 1999)
(rejecting Supremacy Clause argument). Essentially, Graham asserts
that we must abandon the Green standard. Of course, even if we
believed Green to be wrongly decided -- which we do not -- we can-
not disregard its standard of review because we are bound by prior
panel decisions. See Brubaker v. City of Richmond, 943 F.2d 1363,
1381-82 (4th Cir. 1991).
Graham also complains that, in any event, the district court failed
to properly apply § 2254(d) as prescribed by Green. We need not
worry, however, about the district court's precise analysis so long as
our own application of § 2254(d) "confirms that the state courts did
not decide any question "`by interpreting or applying the relevant pre-
cedent in a manner that reasonable jurists would all agree is unreason-
able.'" Mueller, 1999 WL 387369, at *11 n.10 (quoting Green, 143
F.3d at 870).
Finally, Graham argues that the state court decision did not satisfy
the statutory prerequisites triggering application of § 2254(d). Section
2254(d) applies to claims that were "adjudicated on the merits in State
court proceedings." Graham contends that the Virginia Supreme
Court's summary dismissal of his state habeas petition was not an
adjudication on the merits and, therefore, that the district court was
not authorized to apply § 2254(d). We have squarely considered this
contention, too, and rejected it. See Thomas v. Taylor, 170 F.3d 466,
475 (4th Cir.) ("[T]he phrase `adjudication on the merits' in section
2254(d) excludes only claims that were not raised in state court, and
9
not claims that were decided in state court, albeit in a summary fash-
ion."), cert. denied, 119 S. Ct. 2361 (1999); Wright v. Angelone, 151
F.3d 151, 156-57 (4th Cir. 1998). Accordingly, we reject Graham's
assertion that § 2254(d) does not apply here.
B.
Graham also asserts that the district court erred in applying the
AEDPA to his claims because the AEDPA has an impermissible
retroactive effect as applied to him. As we recently explained, Lindh
v. Murphy, 521 U.S. 320 (1997), does not stand for the proposition
that the amendments to § 2254 apply necessarily to any federal
habeas application filed after April 24, 1996, the effective date of the
AEDPA, as Graham's was. See Mueller, 1999 WL 387369, at *6.
Thus, even § 2254 petitions filed after the effective date of the
AEDPA could conceivably avoid application of the amended sections
of § 2254 if such application would have an improper retrospective
effect under Landgraf v. USI Film Prod., 511 U.S. 244 (1994), i.e.,
if "to do so would attach new legal consequences such that the party
affected might have acted differently had he known that his conduct
would be subject to the new law." Mueller, 1999 WL 387369, at *8.
Graham's is not such a petition. He argues that had the deferential
standards of § 2254(d), as amended by the AEDPA, been in effect
during the time he was pursuing relief on direct appeal, his litigation
conduct would have been different. The only thing he points to is that
under pre-AEDPA law, he had no incentive to raise all of his claims
in his petition for a writ of certiorari to the United States Supreme
Court because certiorari was routinely denied since de novo federal
habeas review was available. This precise argument was presented
and rejected in Mueller, and we reject it here. As Mueller observed:
[W]e find even the suggestion that petitioner might have
withheld legitimate claims from his petition for certiorari so
that they would be considered by a federal court for the first
time on habeas review illogical and thus unpersuasive. Peti-
tioner had no particular incentive pre-AEDPA to reserve his
claims -- especially those with any merit -- for habeas
review. In fact, just the opposite was true. Even at the time
[petitioner] filed his petition for certiorari, the Supreme
10
Court on direct review had greater authority to correct con-
stitutional errors than a lower federal court sitting in habeas
review. Thus, the incentive ... has not changed--then, as
now, the incentive was to petition the Supreme Court for
certiorari on all colorable claims.
Id. at *9 (internal citation omitted).
Graham points to no other particular examples that he believes
demonstrate a retroactive effect. Consequently, we reject his argu-
ment and conclude that the district court properly applied the AEDPA
amendments to Graham's § 2254 application.
III.
To be convicted of capital murder under Virginia law, save cases
involving murder-for-hire, the defendant must be the actual or imme-
diate perpetrator of the crime. See Strickler v. Commonwealth, 404
S.E.2d 227, 235 (Va. 1991); Cheng v. Commonwealth, 393 S.E.2d
599, 607-608 (Va. 1990). Graham argues that the Commonwealth
introduced insufficient evidence to demonstrate beyond a reasonable
doubt that he, not his accomplice, was the triggerman in the murder
of Sheryl Stack. The district court, applying a de novo standard of
review, rejected this claim and concluded that the evidence was
clearly sufficient to support the jury's determination that Graham was
the triggerman. We agree with the district court's ultimate conclusion
that Graham is not entitled to habeas relief on his sufficiency of the
evidence claim, and conclude the state court's adjudication of the
claim was not an unreasonable application of clearly established fed-
eral law. See 28 U.S.C.A. § 2254(d).
The Supreme Court of Virginia thoroughly addressed this issue on
direct appeal:
Graham contends that the evidence is insufficient to prove
that he was the "triggerman." Since Martin cannot remember
how long it was after he closed his eyes before he and Stack
were shot, Graham argues that the Commonwealth had the
burden of excluding the hypothesis that Graham might have
11
given the gun to the other man, who then shot Stack and
Martin.
Nothing in the evidence suggests that Graham may have
given the gun to the other man in the interval between the
time Martin closed his eyes and he and Stack were shot.
Instead, Graham's ownership of the gun, his retention of the
gun even when sleeping, Martin's testimony, and Graham's
direction to Booker to "get rid of the bag" containing the
gun, taken together, amply justify the conclusion that Gra-
ham was the person who shot the victims.
Graham, 459 S.E.2d at 100.
In reviewing a sufficiency of the evidence claim,"the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In view of this stan-
dard and the considerable evidence in the record, we cannot conclude
that the decision of the Supreme Court of Virginia that the evidence
was sufficient to prove that Graham was the triggerman was unrea-
sonable. See 28 U.S.C.A. § 2254(d).
IV.
The district court determined that Graham defaulted a number of
his claims. See infra, Part V. Graham raises a "gateway" claim of
actual innocence, arguing that two letters he purportedly received
from his accomplice following his conviction demonstrate his inno-
cence and allow him to develop various defaulted claims. See Schlup
v. Delo, 513 U.S. 298 (1995). Under Schlup , a "claim of innocence
is ... not itself a constitutional claim, but instead a gateway through
which a habeas petitioner must pass to have his otherwise barred con-
stitutional claim considered on the merits." Id. at 315 (internal quota-
tion marks omitted). In order to avail himself of Schlup, Graham
"must show that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence." Id. at 327.
12
In rejecting this claim, the magistrate judge applied Schlup but con-
cluded that Graham's new evidence failed to satisfy this standard. The
district court, however, applied a "clear and convincing" standard,
distilled from Sawyer v. Whitley, 505 U.S. 333, 348 (1992), based on
its conclusion that Graham's claim is not that he is actually innocent
of murder, but that he is not eligible for the death penalty because he
was not the triggerman, see id. Graham contends that the district court
erroneously applied Sawyer's more stringent evidentiary standard,
and that Schlup's "more likely than not" standard is more appropriate
for his claim because he contends he is actually innocent of capital
murder.
The difference between the two standards hinges on the nature of
the habeas applicant's claim: "[T]o the extent a capital petitioner
claims he did not kill the victim, the Schlup `more likely than not'
standard applies," whereas "[t]o the extent a capital petitioner contests
the special circumstances rendering him eligible for the death penalty,
the Sawyer `clear and convincing' standard applies, irrespective of
whether the special circumstances are elements of the offense of capi-
tal murder or, as here, mere sentencing enhancers." Calderon v.
Thompson, 118 S. Ct. 1489, 1503 (1998).
We need not dwell, however, on whether Graham is correct
because, given the overwhelming evidence of guilt and the lack of
anything probative in Graham's "new" evidence, his claim fails
regardless of which standard applies. See Calderon, 118 S. Ct. at
1503. Gateway claims of actual innocence, like freestanding ones, are
narrow in scope and are reserved for the extraordinary case. See id.
at 1502-03; Wilson v. Greene, 155 F.3d 396, 404 (4th Cir.), cert.
denied, 119 S. Ct. 536 (1998). Such claims must be founded upon "re-
liable evidence" that the federal habeas court will evaluate "alongside
any other admissible evidence of the defendant's guilt." Wilson, 155
F.3d at 404-05; see O'Dell v. Netherland, 95 F.3d 1214, 1249-50 (4th
Cir. 1996), aff'd, 521 U.S. 151 (1997). Viewed alongside the other
evidence, the "new" evidence is insufficient to lead us to the conclu-
sion that "it is more likely than not that no reasonable juror would
have convicted [Graham] in light of the new evidence." Schlup, 513
U.S. at 327.
It is undisputed that Martin unequivocally identified Graham on
several occasions. Martin first identified him as the perpetrator of the
13
crime from a photo lineup. Martin later identified Graham as his
assailant during Graham's trial. And, during proceedings relating to
Sheppard's capital murder convictions for the Rosenbluth murders,
Martin again gave unambiguous testimony that Graham was his
assailant and that his focus was on him because Graham had the gun.
Martin testified that Graham was the only one with a weapon on
the night of the murder and that Graham's accomplice did not have
one. Martin recalled that Graham held the gun on them as they gave
his accomplice their wallets and keys and that Graham continued to
do so as his accomplice rifled through their cars. Graham was still
holding the gun when Martin followed Graham's order to close his
eyes.
Graham's girlfriend Priscilla Booker also provided damaging testi-
mony. On the morning of the murder, she saw Graham driving a red
car identical to that depicted in a police photograph of Martin's car.
According to Booker's testimony, Graham chastised her for watching
a news account of Sheryl Stack's murder, and admitted to her that he
knew who had committed the murder, although he denied his own
participation. Then, shortly after the murder, Booker found Martin's
collection of compact discs in the trunk of her car. A fingerprint
expert examined the compact discs and testified that 31 of 48 latent
fingerprints found on the compact discs belonged to Graham.
Approximately two months after the murder, while Graham was
incarcerated on a separate charge, he telephoned Booker and told her
to get rid of his handgun. Graham placed this telephone call in the
presence of Deputy Gary McGregor who was working at the Chester-
field County jail where Graham was being held. Deputy McGregor
testified that Graham indicated he was calling his girlfriend and that,
during the conversation, Graham repeatedly instructed her to go to the
closet and dispose of the bag and its contents.
Although Booker intended to dispose of Graham's handgun, she
failed to do so. Detective Showalter later retrieved it from a closet in
Booker's apartment. Booker testified that Graham acquired the
weapon in September, prior to the murder of Sheryl Stack, and main-
tained exclusive possession of it at the time of the murder and after-
wards. Booker testified that Graham constantly kept the handgun on
14
his person, tucked inside his pants, and that he even slept with it. In
fact, Booker indicated that Graham did not "let it out of his sight" dur-
ing this time. Graham's handgun, a Llama .45 caliber automatic, was
examined by a forensic scientist specializing in firearms identifica-
tion, who testified that the bullets and casing recovered from the mur-
der scene had been fired from Graham's gun. And, there was no
evidence that night that anyone other than Graham obtained posses-
sion of the murder weapon or that Graham relinquished control of it
even for a short period of time. Additionally, during the penalty phase
of Graham's trial, the Commonwealth offered evidence that, less than
two months after he murdered Stack, Graham used the same .45 cali-
ber handgun to shoot Rebecca Rosenbluth, for which Graham was
convicted of capital murder.
Against this formidable array of evidence, Graham offers the two
notes purportedly drafted by Sheppard. Assuming, without deciding,
that these handwritten papers would pass as "new evidence" under
Schlup, see Royal v. Taylor, No. 99-3, 1999 WL 617885, at *___ (4th
Cir. August 16, 1999) (explaining that Schlup defined "new" evidence
broadly, requiring that the habeas petitioner offer"`new reliable evi-
dence ... that was not presented at trial'"), they hardly amount to the
kind of evidence that casts doubt on Graham's guilt sufficient to sup-
port the conclusion that a fundamental miscarriage of justice would
occur were we not to review his defaulted claims, see Schlup, 513
U.S. at 316; id. at 324 (instructing that"petitioner [must] support his
allegations of constitutional error with new reliable evidence").
Graham's "new" evidence consists of two anonymous handwritten
notes. Even accepting Sheppard as the author of the notes, which
were unsigned and unsworn and could have been drafted by anyone,
we do not believe the notes go very far in establishing Graham's
actual innocence claim.4 First, the content of the notes is, from any
_________________________________________________________________
4 Graham is the only one who suggests these letters were sent by Shep-
pard. Even a cursory tour of the record demonstrates that Graham's ver-
sion of his participation in the crimes against Stack and Martin has varied
substantially throughout his trial and post-trial proceedings. For example,
he maintained to his trial counsel that he was totally innocent and not
even at the scene of Stack's murder, and provided a number of alibis
which counsel could not confirm. After the jury returned its guilty ver-
15
perspective, vague and ambiguous. Although the notes contain pas-
sages that appear to be exculpatory, they likewise contain portions
that could readily be viewed as inculpatory.5 One of the notes casti-
gated Graham for failing to dispose of the murder weapon and for
making the phone call to Booker where he advised her to get rid of
it. The other berated Graham for implicating the author -- purport-
edly Sheppard -- in the crime, and goes on to imply that Sheppard
did the honorable thing by not providing incriminating evidence
against Graham, although he could have. Moreover, Sheppard
explained at length in one of the notes that to the extent he provided
any incriminating statements against Graham, he did so only because
Graham had been tried and convicted in the Rosenbluth murders prior
to Sheppard's trial, and that he would have wanted Graham to do like-
wise had Sheppard been tried first. Thus, the thrust of this note evi-
dences Sheppard's belief that he had manipulated the court system
with lies, and would have expected Graham to do the same.
More fundamentally, nothing contained in the notes refutes any of
the critical evidence against Graham. Nothing in either note takes the
murder weapon out of Graham's hands; if anything, it reinforces that
Graham maintained possession and control of it at all times. Gra-
ham's "new evidence" likewise fails to contradict Martin's unequivo-
cal testimony that Sheppard did not have a weapon at the murder
scene. And, we cannot conceive of how these notes establish a con-
fession by Sheppard, as Graham suggests.6
_________________________________________________________________
dict, Graham admitted to his attorney that he had been there, but took the
position that he had not shot anyone. J.A. 703. Graham's lack of veracity
is but one of many factors that diminish the utility of this evidence. See
Schlup, 513 U.S. at 330 (habeas courts may take credibility into account
when determining what reasonable jurors are likely to do).
5 We note that even the statements that seem to be exculpatory are not
susceptible to any definite meaning. For example, the statement that
"you're here for some s**t you didn't do" could conceivably refer to
either the Stack murder or the Rosenbluth murders. See Graham v.
Commonwealth, 464 S.E.2d 128 (Va. 1995). As we have noted, Gra-
ham's .45 caliber handgun was involved in both murders and the notes,
assuming Sheppard was the author, obviously refer to both cases.
6 The record also contains an affidavit from Graham's federal habeas
counsel recounting an interview he conducted of an individual named
16
Weighing the wealth of incriminating evidence against two ambig-
uous notes allegedly drafted by a convicted murderer, we are not at
all persuaded that it was more likely than not that no reasonable juror
would have convicted Graham in view of the new evidence. Accord-
ingly, we reject Graham's actual innocence claim and, therefore, may
not review his defaulted claims.
V.
The district court concluded that nine of the claims asserted in Gra-
ham's § 2254 application were procedurally defaulted. Graham's pro-
cedural defaults, however, may be excused, allowing us to address the
merits, only if he can establish cause for and prejudice resulting from
the default, see Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977), or
that he has suffered a fundamental miscarriage of justice, see Murray
v. Carrier, 477 U.S. 478, 495-96 (1986). Graham, however, does not
even attempt to argue that the district court erred in determining that
the claims were defaulted. Rather, he contends that he has established
sufficient cause and prejudice to excuse the default.7 Reduced to its
_________________________________________________________________
Avery Woodson, who purportedly indicated that he knew Graham was
not the triggerman. Graham does not rely to any great extent on this evi-
dence, nor should he, since there is no evidence linking this person to the
crimes and we do not know the basis of his alleged information.
7 The district court concluded that the following claims were defaulted:
(1) that the Commonwealth failed to turn over exculpatory evidence
under Brady v. Maryland, 373 U.S. 83 (1963); (2) that there was insuffi-
cient evidence to support sentencing phase findings of depravity of mind
on the vileness predicate; (3) that the trial court erred in refusing to
charge Graham's proffered instruction under Simmons v. South Carolina,
512 U.S. 154 (1994); (4) that the Virginia death penalty statutes "on their
face and as applied are unconstitutional and violate the Sixth, Eighth, and
Fourteenth Amendment[s] because jurors are not informed of presump-
tive life sentences"; (5) that jurors may find"future dangerousness" on
the basis of unadjudicated conduct and that there is no standard of proof
for such conduct; (6) that the trial court's denial of Graham's motion to
prohibit the death penalty denied him effective assistance of counsel; (7)
that trial counsel was ineffective in failing to cross-examine Martin's
treating physician as to Martin's cognitive abilities or retain an expert to
rebut his testimony; (8) that trial counsel rendered ineffective assistance
in failing to request an instruction that Graham was not required to tes-
tify; and (9) that trial counsel was ineffective in failing to offer proper
jury instructions or object to the verdict forms submitted to the jury.
17
essence, Graham's argument is that the Virginia Supreme Court failed
to provide his habeas counsel with sufficient notice to investigate and
prepare his state habeas petition, resulting, we presume, in the omis-
sion of the defaulted claims from his state habeas petition.8
Specifically, Graham contends that the manner in which the Vir-
ginia Supreme Court appointed his state habeas counsel did not allow
counsel sufficient time to prepare a collateral challenge in state court.
The attorney initially appointed to represent Graham in his state
habeas proceedings withdrew as counsel in October 1995. The Vir-
ginia Supreme Court then appointed a second attorney to assist Gra-
ham in filing a state habeas petition; however, Graham's new habeas
counsel did not learn of his appointment until January 22, 1996, four
days before Graham's petition was due.
Graham's attorney immediately moved for an extension of time,
informing the Virginia Supreme Court that he had not previously han-
dled a capital habeas case. In addition to the motion, counsel submit-
ted a letter on January 25, again requesting an extension. Out of an
abundance of caution, he asked that the letter, which set forth three
conclusory claims for relief, serve as Graham's habeas petition if the
motion for extra time was denied. The motion for an extension of
time to file the petition was denied.
In February 1996, the Commonwealth moved to dismiss. The
Supreme Court ordered Graham to respond to the motion to dismiss
by April 1, 1996. On April 1, Graham asked for an extension of time
in order to file an amended habeas petition. The Virginia Supreme
Court granted the motion on May 1, 1996, giving him 60 days to file
_________________________________________________________________
8 We note that the "cause" advanced by Graham could not possibly pro-
vide a basis for reviewing Graham's Brady claim. Graham's sole ground
supporting his "cause" argument is essentially that the Virginia Supreme
Court imposed unreasonable time requirements upon Graham's state
habeas counsel, making it impossible for him to adequately investigate
and prepare Graham's state habeas challenge. This argument obviously
does not pertain to Graham's Brady claim since that claim was raised in
his state habeas petition but rejected on procedural grounds by the Vir-
ginia Supreme Court pursuant to the rule in Slayton v. Parrigan, 205
S.E.2d 680 (Va. 1974).
18
an amended petition on Graham's behalf, and Graham's amended
habeas petition was filed with the Virginia Supreme Court on July 2,
1996.
These events, Graham argues, impeded his state habeas counsel's
efforts to investigate and prepare his claims for collateral relief and
constitute cause for his defaults. See Murray , 477 U.S. at 488("[C]ause for a procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the defense
impeded counsel's efforts."). We must reject Graham's claim. Gra-
ham was in no way impeded from raising and developing his claims
in state habeas proceedings. His habeas counsel learned of his
appointment on January 22, 1996, and filed Graham's final state
habeas petition on July 2, 1996, more than five months later. Even if
it were reasonable for counsel to have done nothing to further develop
Graham's claims until May 1, 1996, when the Virginia Supreme
Court granted his motion to file an amended habeas petition, he still
had two months to prepare Graham's petition. Graham has not
attempted to explain why the defaulted claims could not have been
investigated and developed in two months' time.
The real nature of Graham's claim, of course, is that his state
habeas counsel failed to adequately investigate and prepare his peti-
tion for habeas relief. But, a claim that habeas counsel was ineffective
is not a cognizable basis for relief. See Quesinberry v. Taylor, 162
F.3d 273, 276 (4th Cir. 1998), cert. denied, 119 S. Ct. 1160 (1999).
Accordingly, we conclude that Graham has failed to establish cause
to excuse his defaults, and we decline to review these claims.
VI.
Graham presses four ineffective assistance of counsel claims which
the district court rejected on the merits. To prevail on a claim for inef-
fective assistance of counsel, Graham must establish the two familiar
requirements of Strickland v. Washington, 466 U.S. 668 (1984). First,
Graham must show that his counsel's performance"fell below an
objective standard of reasonableness." Id. at 688. Next, counsel's
deficient performance must result in prejudice. See id. at 691-94. In
that regard, Graham "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceed-
19
ing would have been different," id. at 694, i.e., the result of the trial
was "fundamentally unfair or unreliable" because of the errors, see
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). With these funda-
mental concepts in mind, we consider each ineffectiveness claim in
turn.
A.
First, Graham argues that his trial counsel rendered ineffective
assistance by failing to interview Martin, a critical prosecution wit-
ness, prior to trial and then, either because of or in addition to trial
counsel's failure to conduct a pre-trial interview, failing to effectively
cross-examine Martin at trial. Had his counsel questioned Martin
prior to trial, Graham asserts, he would have discovered that Martin
had been unable to pick Sheppard out of a photo spread as one of his
assailants. Using this evidence, argues Graham, counsel could have
effectively impeached Martin's credibility as a witness. Moreover,
Graham suggests that had Martin's misidentification of Sheppard
come to light before trial, it would have revealed that Martin was bat-
tling the effects of his severe head wound and provided a "legitimate
basis" for requesting the appointment of an expert to evaluate Mar-
tin's cognitive abilities and, possibly, refute the testimony of Dr. Wil-
liam Broaddus, who opined that Martin's ability to think and reason
was perfectly normal.
To the extent that this claim rests on counsel's failure to interview
Martin before trial, the magistrate judge concluded that Graham failed
to present the claim during his state habeas proceedings and, there-
fore, that the claim is defaulted. See Coleman v. Thompson, 501 U.S.
722, 731-32 (1991). The district court, however, concluded that the
substance of the claim had indeed been presented to the Virginia
Supreme Court in Graham's state habeas petition. The district court
then rejected the claim after apparently reviewing it de novo.
We conclude that Graham defaulted this ineffectiveness claim to
the extent it is based on counsel's failure to interview Martin prior to
trial. Graham's state habeas petition indeed asserts that trial counsel
"failed to inquire ... [of] Martin whether he had ever seen a photo-
graph of Sheppard," but this assertion was unquestionably offered in
support of Graham's claim that counsel failed to effectively cross-
20
examine Martin. See J.A. at 883. The next sentence in Graham's peti-
tion made this clear, explaining that "[c]ounsel's failure to even place
the possibility that Martin had been mistaken before the jury, was
clearly ineffective." J.A. 883 (emphasis added). Moreover, these
assertions appeared under a heading which referenced ineffective
cross-examination, not ineffective investigation. Thus, Graham has
failed to exhaust a claim based on counsel's failure to interview Mar-
tin prior to trial. See Williams, 163 F.3d at 872-73. And, since Gra-
ham would be procedurally barred from raising this claim if he
returned to the Virginia Supreme Court, the claim is defaulted. See
Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Williams, 163 F.3d
at 872-73.
With respect to Graham's claim that his attorney conducted a defi-
cient cross-examination of Martin, the district court rejected it after
de novo consideration. Although we agree that Graham cannot prevail
on this claim, the district court did not apply§ 2254(d), as it must do.
In applying § 2254(d), we necessarily look to the decision of the state
habeas court. Here, the Supreme Court of Virginia, in its one-
paragraph order of dismissal, indicated only that it found "no merit"
to the ineffective assistance claims. We conclude, after independently
reviewing the applicable precedents, see Wright , 151 F.3d at 157, that
the decision of the Virginia Supreme Court was not contrary to and
did not involve an unreasonable application of the controlling legal
principles, see 28 U.S.C.A. § 2254(d).
Trial counsel is afforded a "strong presumption that [his] conduct
falls within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689. Counsel's cross examination of Martin
was well within the acceptable spectrum of effective assistance. Mar-
tin was clearly a very sympathetic witness in light of his severe gun-
shot wounds, and cross examination of him was fraught with danger.
Viewed as a whole, we conclude that the cross-examination of Martin
was objectively reasonable. Moreover, even if the cross-examination
had been objectively unreasonable under Strickland, Graham has not
demonstrated "a reasonable probability that, but for counsel's unpro-
fessional errors, the result of the proceeding would have been differ-
ent." Id. at 694. The state habeas court's decision that Graham is not
entitled to relief on this claim was reasonable. See 28 U.S.C.A.
§ 2254(d).
21
B.
Next, Graham contends that trial counsel should have moved for a
mistrial or requested a continuance when he learned for the first time,
during his cross-examination of lead detective Steve Dalton, that Mar-
tin had misidentified Graham's suspected accomplice Sheppard in a
pre-trial photo spread. Graham believes Martin's failure to properly
identify Sheppard amounts to exculpatory evidence that was not dis-
closed prior to trial. On this basis, Graham asserts, he was either enti-
tled to a mistrial or a continuance to prepare an attack on Martin's
reliability as a witness.
This is really Graham's second try at a Brady claim, albeit indi-
rectly this time. As we explained above, Graham's straight Brady
claim was defaulted. See supra Part V. Here, he has simply shifted
focus to what he asserts was counsel's deficient response at trial to
a potential Brady violation by the Commonwealth. The Common-
wealth contends that to the extent Graham asserts that trial counsel
rendered ineffective assistance in failing to request a continuance, the
claim was not presented to the Virginia Supreme Court because Gra-
ham's state habeas petition specifically mentions only counsel's fail-
ure to seek a mistrial. The district court rejected this argument,
concluding that the claim asserted in Graham's state habeas petition
was sufficient to preserve the claim for federal habeas review.
Federal habeas courts may consider a claim only if its substance
has been fairly presented to the state courts. See Matthews v. Evatt,
105 F.3d 907, 911 (4th Cir.), cert. denied, 118 S. Ct. 102 (1997). For
this to occur, "both the operative facts and the controlling legal princi-
ples must be presented to the state court." Id. (internal quotation
marks omitted). We conclude that the substance of this claim was
presented to the state court. At bottom, Graham's claim is that he
received ineffective assistance because counsel failed to act when he
discovered a potential Brady violation during trial. In other words,
Graham asserts that his attorney did not competently respond when
he learned that Martin had failed to identify Graham's accomplice.
Therefore, Graham exhausted this claim, permitting us to consider the
reasonableness of the Virginia Supreme Court's decision after an
independent review of the relevant precedents. See Wright, 151 F.3d
at 157.
22
In view of the record, trial counsel's decision not to seek a mistrial
or a continuance and, instead, to use the late disclosure of Martin's
misidentification to Graham's advantage was certainly a legitimate
tactical decision falling "within the wide range of reasonable profes-
sional assistance." Strickland, 466 U.S. at 689. Indeed, the Virginia
Supreme Court, in its disposition of Graham's direct appeal, observed
that trial counsel "used the fact of Martin's misidentification to his
own advantage in his argument to the jury." Graham, 459 S.E.2d at
101. The record bears this out. Trial counsel suggested to the jury that
the misidentification of Sheppard cast doubt on Martin's ability to
identify Graham as the triggerman. Moreover, Graham's attorney
emphasized that this information surfaced only during cross-
examination, and that the Commonwealth did not reveal to the jury
that Martin was shown a second photo lineup from which he was
unable to pick out Graham's accomplice. This line of argument obvi-
ously suggested to the jurors that they view the misidentification as
particularly damaging to the prosecution on the critical identification
issue.
Moreover, even if we were to conclude that counsel's actions were
objectively unreasonable under Strickland, we perceive no prejudice
(assuming, of course, Martin's misidentification of Sheppard qualifies
as exculpatory material under Brady). Graham suggests that, had
counsel moved for and obtained a mistrial or a continuance, they
could have sought expert assistance to evaluate Martin's cognitive
abilities. Graham, however, does not explain why Martin's failure to
select Sheppard from a photo lineup provided a better basis for seek-
ing to have Martin evaluated than existed before the misidentification
came to light. After all, it was no secret that Martin had suffered a
gunshot wound to the head. Moreover, Graham is merely speculating
that another expert might have refuted Dr. Broaddus' conclusion that
Martin's ability to think and reason was perfectly normal. Because it
is based on nothing concrete, this assertion clearly does not demon-
strate that there is a reasonable probability that the outcome of the
trial would have been different. Alternatively, Graham suggests that
had he been granted a continuance or a mistrial, he could have sought
to suppress Martin's in-court identification of him based on his misi-
dentification of Sheppard. The unequivocal nature of Martin's identi-
fication of Graham, however, has never been in question, and Graham
does not question it now. The fact that Martin was unable to identify
23
his accomplice goes to Martin's credibility as a witness and would not
have provided a successful basis for suppressing his identification of
Graham. Indeed, the trial judge made this clear during the sentencing
phase of trial:
The Court is of the opinion there was no Brady material to
give. I watched the young man testify like the jury did. He
was very positive in his identification. My recollection of
the testimony he said he really didn't see the other man ....
His attention was to the man with the gun who happened to
be, by the evidence, Mr. Graham. The Court has no problem
at all with the case on that point .... In the first place I don't
think even on a motion to suppress, it is whether or not his
recollection at the time of the offense or whether it is some
way the pictures assisted him. ... I watched this young man
testify very closely. He was exact. He had difficulty a little
bit in speaking but he was convinced beyond all doubt that
Mr. Graham shot him.
J.A. 667-68.
We are satisfied that the Virginia Supreme Court, in concluding
that this claim was without merit, did not interpret or apply the rele-
vant Supreme Court decisions "in a manner that reasonable jurists
would all agree is unreasonable." Green, 143 F.3d at 870. Thus,
habeas relief is barred under § 2254(d).
C.
Graham's next ineffectiveness claim is that his trial counsel did not
adequately voir dire the potential jurors. Specifically, he contends that
counsel failed to ask questions that would enable him to discern
whether members of the venire would be able to follow the instruc-
tions from the court. Graham also contends that counsel should have
explained the elements of capital murder and the meaning and effect
of mitigating evidence. Because this information was not included as
part of counsel's voir dire, as we understand the argument, counsel
had no reasonable way of knowing whether the jurors would automat-
ically impose death if they found him guilty or whether they could
24
give effect to mitigating evidence. The district court concluded that
Graham is not entitled to relief on this basis. We agree.
We have previously considered, and rejected, the argument that
counsel's conduct of voir dire is not constitutionally sufficient unless
he first informs the venire that they may not impose the death penalty
unless they find an aggravating factor, and then asks if they could
consider a sentence other than death once they returned a guilty ver-
dict and found an aggravating factor. See Yeatts v. Angelone, 166 F.3d
255, 265-66 (4th Cir.), cert. denied, 119 S. Ct. 1517 (1999). Graham's
argument is virtually identical and must fail.
Although the questions varied slightly for each member of the
venire, we are satisfied that all were asked questions designed to
determine if they were predisposed to impose the death penalty if they
found Graham guilty of capital murder. The court and Graham's trial
counsel posed questions directed to "the relevant circumstance of
whether a prospective juror entertains opinions on capital punishment
that would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath and
[which were] adequate to identify those who would automatically
vote for the death penalty." Mackall v. Angelone, 131 F.3d 442, 451
(4th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 907 (1998). More-
over, Graham has failed to establish prejudice, having made no
attempt to demonstrate how, "but for counsel's unprofessional errors,
the result of the proceeding would have been different." Strickland,
466 U.S. at 694.
In light of the foregoing, the decision of the Virginia Supreme
Court is reasonable and, as a result, Graham is not entitled to relief
on his claim. See 28 U.S.C.A. § 2254(d).
D.
Next, Graham, who is black, contends that counsel rendered inef-
fective assistance when he withdrew his motion under Batson v.
Kentucky, 476 U.S. 79 (1986). Under Batson , a defendant may estab-
lish a prima facie case of discrimination by the prosecutor by showing
that: (1) the defendant is a member of a distinct racial group; (2) the
prosecutor has used peremptory challenges to remove from the venire
25
members of the defendant's race; and (3) other facts and circum-
stances surrounding the proceeding raise an inference that the prose-
cutor discriminated in his or her selection of the jury pool. Id. at 96-
97. The Supreme Court has modified Batson to allow defendants of
races different from the excused jurors to have standing to raise Bat-
son challenges. See Powers v. Ohio, 499 U.S. 400, 415 (1991). Once
the defendant establishes a prima facie case, the burden shifts to the
prosecution to advance a non-discriminatory reason for the exercise
of the peremptory challenges. See Batson, 476 U.S. at 97. The trial
court then determines whether the defendant has proven purposeful
discrimination. See id. at 98; Hernandez v. New York, 500 U.S. 352,
358-59 (1991).
The Commonwealth used its five peremptory strikes during jury
selection to remove four black jurors and one white juror. Ultimately,
the jury (twelve jurors and one alternate) was composed of six black
jurors and seven white jurors. Based on the Commonwealth's removal
of four black jurors, trial counsel challenged the jury selection under
Batson. The Commonwealth indicated that it had removed the black
jurors because of their age, not their race. The prosecutor believed
these jurors were approximately the same age as Graham, a fact
which he felt could engender sympathy for Graham. See Howard v.
Moore, 131 F.3d 399, 408 (4th Cir. 1997) (en banc) (explaining that
"age is an acceptable race-neutral factor"), cert. denied, 119 S. Ct.
108 (1998). Additionally, he noted that none appeared to be particu-
larly committed to the death penalty. Counsel for Graham argued that
these reasons were pretextual, since the Commonwealth removed a
black juror who was the same age as one remaining white juror and
older than another. The trial judge then required, sua sponte, Gra-
ham's attorneys to provide race-neutral reasons for using four of their
five strikes to eliminate white jurors. Before the court ruled, however,
trial counsel for Graham conferred with the Commonwealth's attor-
ney and then indicated to the court that the issue had been resolved.
The court nevertheless entered its finding that the Commonwealth had
not based any of its strikes on race. The record shows that counsel
then requested a moment to confer with Graham, after which he
explained to the trial court that he was withdrawing the Batson
motion in exchange for an unspecified concession from the Common-
26
wealth. There is nothing in the trial transcript suggesting that Graham
objected to the withdrawal of the Batson motion in any way.9
The district court concluded that the claim was meritless after
reviewing it de novo. We agree with the district court's ultimate deter-
mination that Graham is not entitled to relief on this claim, conclud-
ing that the Virginia Supreme Court's decision was not contrary to
and did not involve an unreasonable application of the controlling
precedents. See 28 U.S.C.A. § 2254(d); Wright, 151 F.3d at 157.
Graham concentrates his argument on the validity of his Batson
motion. The mere fact, however, that trial counsel withdrew an argu-
able Batson motion does not necessarily overcome the presumption
that counsel performed competently. Counsel's withdrawal of a valid
Batson motion is not objectively unreasonable per se. See Keel v.
French, 162 F.3d 263, 272 (4th Cir. 1998), cert. denied, 119 S. Ct.
2353 (1999). Undoubtedly, there are numerous sound tactical reasons
not to pursue a Batson motion. Here, even after the Commonwealth
exercised its strikes, Graham was left with a jury consisting of six
black jurors and seven white jurors. Counsel could have reasonably
determined that the composition of the jury was satisfactory and, were
they to begin anew following a successful motion under Batson, the
resulting jury makeup could have been less to his liking.
Moreover, it is far from certain that Graham had a winning Batson
claim in the first place. The Commonwealth articulated a legitimate
race-neutral reason for its peremptory strikes. See Howard, 131 F.3d
at 408. Counsel's argument that this was merely pretext because the
Commonwealth had failed to strike two young, i.e., similarly situated
white jurors is a position that we have rejected. See Matthews, 105
F.3d at 918.
_________________________________________________________________
9 Graham contends that this motion was withdrawn without his consent;
however, there is nothing in the record to support this assertion. Graham
submitted to the district court his own affidavit declaring that his attor-
neys failed to consult him or obtain his consent. Because the affidavit
was never presented to the state court, we will not consider it. See Wilson
v. Moore, 178 F.3d 266, 272-73 (4th Cir. 1999).
27
Because we cannot conclude that the Virginia Supreme Court "ap-
pli[ed] the relevant precedent in a manner that reasonable jurists
would all agree is unreasonable," Green, 143 F.3d at 870, Graham is
not entitled to habeas relief on this claim, see 28 U.S.C.A. § 2254(d).
VII.
Graham next contests, under the Eighth and Fourteenth Amend-
ments, the constitutionality of the verdict forms used by the jury dur-
ing the sentencing phase of trial. These forms provided four
alternative jury verdicts:
(1) We, the jury, on the issue joined, having found the
defendant guilty of capital murder and having unanimously
found after consideration of his history and background that
there is a probability that he would commit criminal acts of
violence that would constitute a continuing serious threat to
society, and having unanimously found that his conduct in
committing the offense is outrageously or wantonly vile,
horrible or inhuman in that it involved [torture] [depravity
of mind]; and having considered the evidence in mitigation
of the offense, unanimously fix his punishment at death.
(2) We, the jury, on the issue joined, having found the
defendant guilty of capital murder and having unanimously
found after consideration of his history and background that
there is a probability that he would commit criminal acts of
violence that would constitute a continuing serious threat to
society, and having considered the evidence in mitigation of
the offense, unanimously fix his punishment at death.
(3) We, the jury, on the issue joined, having found the
defendant guilty of capital murder and having unanimously
found that his conduct in committing the offense is outra-
geously or wantonly vile, horrible or inhuman in that it
involved [torture] [depravity of mind]; and having consid-
ered the evidence in mitigation of the offense, unanimously
fix his punishment at death.
28
(4) We, the jury, on the issue joined, having found the
defendant guilty of capital murder and having considered all
of the evidence of aggravation and mitigation of such
offense, fix his punishment at imprisonment for life.
J.A. 1230. The foreman was required to sign the verdict selected by
the jury and the jury was instructed "to cross out any paragraph, word
or phrase which you do not find beyond a reasonable doubt." J.A.
586.
According to Graham, the alternative verdict forms misled the jury
into thinking that a death sentence was mandatory if they found one
of the aggravating factors because the jury was not explicitly given
the option of imposing a life sentence even if one or both of the
aggravating factors was present. Graham advances this position
despite the fact that the verdict forms provided to the jury incorpo-
rated statutorily-required language virtually verbatim, see Va. Code
Ann. § 19.2-264.4D (Michie Supp. 1999), and despite the fact that the
trial judge specifically instructed the jury that"you are not compelled
to impose the death penalty even if you find one or both of these
[aggravating factors] proven beyond a reasonable doubt," J.A. 585.
The Commonwealth contends that Graham defaulted this claim,
having failed to present it to any Virginia Court. On direct appeal,
Graham contended that the "jury verdict forms inhibit[ ] the jury from
giving independent weight to aspects of the defendant's character and
record and to circumstances of the offense that are proffered in miti-
gation," a claim which the Virginia Supreme Court rejected. Graham,
459 S.E.2d at 100. The magistrate judge concluded that Graham's
federal habeas claim -- that the verdict forms mandate a sentence of
death once an aggravating factor is found -- is substantially different
than the issue presented on direct appeal. The district court, however,
concluded that Graham raised the essence of his federal claim on
direct appeal.
We think that the substance of the claim was fairly presented to the
Virginia Supreme Court. See Matthews, 105 F.3d at 911. Graham's
argument here is that the alternative verdicts fostered the misconcep-
tion that a death sentence is automatic when an aggravating factor is
present, i.e., because of the forms, the jury did not understand it
retained the option to impose a life sentence, even after finding one
or more aggravating circumstances. In our view, this is essentially the
29
same as arguing that the verdict forms "inhibited" the jury from
according proper weight to evidence offered in mitigation.
Nevertheless, Graham is not entitled to relief. We have previously
visited, and rejected, the suggestion that sentencing instructions --
which incorporated the same statutory language and virtually identical
verdict forms -- "failed to inform the jury adequately of its option to
recommend life imprisonment." Briley v. Bass , 750 F.2d 1238, 1242-
43 (4th Cir. 1984). And, to the extent that Graham suggests the ver-
dict forms used in his sentencing proceeding failed to adequately
address the concept of mitigation, his claim is patently without merit.
See Buchanan v. Angelone, 118 S. Ct. 757, 758-59 (1998); Eaton v.
Angelone, 139 F.3d 990, 993 (4th Cir.), cert. denied, 118 S. Ct. 2338(1998). Because the Virginia Supreme Court's rejection of this claim
was reasonable, Graham is not entitled to relief under § 2254(d).
VIII.
Next, Graham contends that Virginia's future dangerousness aggra-
vating factor is unconstitutionally vague on its face because the defi-
nition of "future dangerousness" is too broad to sufficiently guide
jurors in exercising their discretion. And, he argues, because the trial
judge did nothing more than paraphrase the statute in his instructions
to the jury, the statute was unconstitutionally applied to Graham.
Graham raised this constitutional challenge to the future danger-
ousness factor on direct appeal to the Virginia Supreme Court, which
rejected it. See Graham, 459 S.E.2d at 100. The district court deter-
mined that the claim was meritless based on circuit precedent. See,
e.g., Spencer v. Murray, 5 F.3d 758, 764-65 (4th Cir. 1993).
Initially, we note that Graham would not be entitled to relief on this
claim even if the Virginia Supreme Court had unreasonably deter-
mined that the "future dangerousness" factor was not unconstitution-
ally vague. Graham's sentence was also predicated on the vileness
factor, which Graham does not -- and cannot -- suggest is unconsti-
tutional. See Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996)
(rejecting vagueness challenge to the vileness predicate). Thus, Gra-
ham's sentence rested on a constitutional predicate-- vileness --
even if the future dangerousness factor was constitutionally infirm.
See George v. Angelone, 100 F.3d 353, 362-63 (4th Cir. 1996). More-
30
over, the Virginia Supreme Court reviewed Graham's sentence and
determined that the jury's findings of future dangerousness and vile-
ness were fully supported by the evidence, and that the sentence was
not arbitrary, excessive, or disproportionate. See Graham, 459 S.E.2d
at 101-102. Therefore, even if Graham were to succeed on this claim,
he would still not be entitled to habeas relief because the sentence still
rests on the vileness predicate, which is sound. See id. at 363.
In any event, under § 2254(d) we cannot disturb the Virginia
Supreme Court's decision. It is a well-rooted principle that Virginia's
statutory future dangerousness factor is constitutional. See Eaton, 139
F.3d at 998; Spencer, 5 F.3d at 764-65. Accordingly, the jury instruc-
tions here, which paraphrase the statutory text, pass inspection under
the Constitution. Graham is entitled to no relief on this claim.
IX.
Graham also contends that the district court erred in concluding
that he was not entitled to an evidentiary hearing. Specifically, Gra-
ham seeks to have his habeas application remanded to the district
court for him to develop further the factual basis for his ineffective
assistance and actual innocence claims. We cannot agree that he is
entitled to an evidentiary hearing. Even if Graham could demonstrate
that he is not precluded by the AEDPA from obtaining an evidentiary
hearing on these claims, see 28 U.S.C.A.§ 2254(e) (West Supp. 1998),10
we are confident that he is nevertheless not entitled to an evidentiary
hearing, see Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir.)
(explaining that petitioner is not necessarily entitled to a hearing even
if § 2254(e)(2) does not bar one), cert. denied, 119 S. Ct. 587 (1998).
With respect to his ineffective assistance claims, Graham has failed
to "allege[ ] additional facts that, if true, would entitle him to relief."
Cardwell, 152 F.3d at 338 (internal quotation marks omitted). Gra-
ham has not pointed to any facts in addition to those contained in the
_________________________________________________________________
10 Under the AEDPA, a habeas applicant who "has failed to develop the
factual basis of a claim in State court proceedings" is precluded from an
evidentiary hearing unless the applicant demonstrates that the claim's
"factual predicate ... could not have been previously discovered through
the exercise of due diligence." 28 U.S.C.A. § 2254(e)(2).
31
record that he expects would come to light in an evidentiary hearing;
in fact, he has not even explained in the most general terms how an
evidentiary hearing in the district court would aid his ineffective
assistance claims. See id. As we have observed on several occasions,
"`[e]videntiary hearings have never been required on federal collateral
review of state petitioners' ineffectiveness claims.'" Fitzgerald v.
Greene, 150 F.3d 357, 369 (4th Cir.) (quoting Eaton, 139 F.3d at 994)
(alteration in original), cert. denied, 119 S. Ct. 389 (1998). Graham
has given us no reason to conclude that one was required here.
Indeed, Graham did not even request that the district court order dis-
covery. Moreover, the district court permitted Graham to expand the
record to include all of the evidence he offered in support of his fed-
eral habeas application, his opposition to the Commonwealth's
motion to dismiss, and his objections to the recommendation of the
magistrate judge. We conclude that no evidentiary hearing was
required for his ineffective assistance claims.
Likewise, with respect to his actual innocence claim, Graham has
failed to forecast what additional evidence, if any, would be added to
the two letters purportedly drafted by Sheppard. These two letters
form the basis of his actual innocence claim. Graham has not even
attempted to explain how an evidentiary hearing in the district court
would further develop the basis for the claim, particularly in light of
the expanded record. We perceive no error here.
X.
For the foregoing reasons, we affirm the denial of Graham's appli-
cation for a writ of habeas corpus under 28 U.S.C.A.§ 2254 with
respect to the claims for which a certificate of appealability was
granted. With respect to the remaining claims, we conclude that Gra-
ham has failed to make "a substantial showing of the denial of a con-
stitutional right." 28 U.S.C.A. § 2253(c)(2). We therefore deny
Graham's motion for the certificate on the remaining claims and dis-
miss the appeal as to them.
AFFIRMED IN PART AND DISMISSED IN PART
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