Ricky Gray v. David Zook, 806 F.3d 783

Background

In 2006 Ricky Jovan Gray confessed to murdering five members of the Harvey family; he was convicted of capital murder and sentenced to death for two counts (two children), with other counts resulting in life sentences.
On direct appeal Virginia’s highest court affirmed convictions and death sentences; Gray then filed a state habeas petition alleging, inter alia, ineffective assistance of trial counsel for failing to investigate and challenge his confession (Claim III) and ineffective assistance at sentencing for failing to present intoxication evidence (Claim IX).
The Commonwealth moved to dismiss the state petition and attached a joint affidavit from Gray’s trial counsel; the Supreme Court of Virginia dismissed Claim III without an evidentiary hearing, crediting counsel’s affidavit and finding no Strickland deficiency or prejudice.
Gray filed federal habeas petitions. The district court denied relief but appointed new counsel after Martinez v. Ryan issued; Gray then raised Martinez-based claims, including Claim XI (failure to present voluntary-intoxication evidence at penalty phase). The district court held the penalty-phase intoxication claim had been raised in state habeas and so was not subject to Martinez.
On appeal Gray challenged (1) whether the Virginia court made an unreasonable determination of facts under AEDPA §2254(d)(2) by resolving disputed facts without an evidentiary hearing, and (2) whether Martinez allowed him de novo review of the penalty-phase intoxication claim. The Fourth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Virginia Supreme Court made an "unreasonable determination of the facts" under 28 U.S.C. §2254(d)(2) by denying an evidentiary hearing and resolving factual disputes (Claim III)	Gray: the state court ignored his evidence (Knight investigator affidavit and his verified petition) and improperly resolved credibility without a hearing, making its fact-findings objectively unreasonable	Warden/Virginia: the state court considered the record (including counsel’s affidavit), the Knight affidavit had limited probative value and the record gave detailed contrary evidence; no hearing was required	The Fourth Circuit: affirmed — the state court’s factual determinations were not objectively unreasonable; it reasonably discounted Gray’s uncorroborated, conclusory allegations and the Knight affidavit in light of contrary record evidence and counsel’s affidavit
Whether Martinez v. Ryan permits de novo federal review of Gray’s penalty-phase ineffective-assistance claim based on voluntary intoxication (i.e., whether the claim was procedurally defaulted)	Gray: the specific trial-counsel intoxication claim is effectively a new, unexhausted claim that Martinez allows him to present de novo in federal court	Warden: the substance of the intoxication claim was presented to and adjudicated by the Virginia Supreme Court (Claims IX/penalty phase), so it is exhausted and not subject to Martinez	The Fourth Circuit: affirmed — Gray’s penalty-phase intoxication claim was fairly presented in state habeas (Claim IX) and therefore exhausted; Martinez does not apply and de novo review is not allowed
Whether the district court erred by denying appointment of independent counsel for Martinez issues	Gray: state habeas counsel later represented him in federal court, creating a conflict and warranting independent counsel to develop Martinez claims	Warden: no need for independent counsel because claims were presented/decided in state court	Fourth Circuit previously granted appointment of independent counsel for Martinez evaluation; on the merits the court found the specific penalty-phase claim had been exhausted so independent counsel’s Martinez-based de novo review was unnecessary
Whether newly proffered federal habeas evidence (expert affidavits) "fundamentally altered" the claim so it was unexhausted	Gray: new expert affidavits materially change the claim such that it is unexhausted	Warden: the new evidence strengthens but does not fundamentally alter the state-court claim; operative facts and legal principle were presented in state habeas	Fourth Circuit: new evidence did not fundamentally alter the claim; exhaustion was satisfied and the claim remains subject to AEDPA review

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (legal standard for ineffective assistance of counsel)
Miller-El v. Cockrell, 537 U.S. 322 (review where state court "had before it, and apparently ignored" evidence)
Harrington v. Richter, 562 U.S. 86 (deference under AEDPA; "fair-minded jurists" language)
Martinez v. Ryan, 132 S. Ct. 1309 (narrow exception to Coleman for ineffective-assistance-of-trial-counsel claims raised in initial-review collateral proceedings)
Moore v. Hardee, 723 F.3d 488 (4th Cir. 2013) (state court need not mention every piece of evidence; review entire opinion)
Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) (exhaustion and §2254(d)(2) framework; when facts support claim)
Strong v. Johnson, 495 F.3d 134 (4th Cir. 2007) (state court may resolve credibility on competing affidavits without hearing)
Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) (ignored highly probative affidavit may render state fact-finding unreasonable)
Panetti v. Quarterman, 551 U.S. 930 (due process may require evidentiary hearing in some federal-constitutional contexts)
Brumfield v. Cain, 135 S. Ct. 2269 (Supreme Court considered evidentiary standard needed to obtain hearing on intellectual disability claim)