Herman Charles BARNES, Petitioner-Appellee, v. Charles E. THOMPSON, Warden, Respondent-Appellant. Herman Charles BARNES, Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Respondent-Appellee.
Nos. 94-4001, 94-4002
United States Court of Appeals, Fourth Circuit
Argued Dec. 6, 1994. Decided June 29, 1995. As Amended Aug. 10, 1995.
58 F.3d 971
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
Reversed in part and affirmed in part by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge WILLIAMS joined. Judge MURNAGHAN wrote an opinion concurring in the judgment.
OPINION
LUTTIG, Circuit Judge:
The United States District Court for the Eastern District of Virginia vacated the death sentence of habeas corpus petitioner Herman Barnes, holding that the Commonwealth withheld exculpatory evidence in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and that petitioner had shown cause for his failure to present timely his exculpatory-evidence claim in the courts of the Commonwealth of Virginia. Because the record clearly supports the Virginia Supreme Court‘s determination that the information upon which the exculpatory-evidence claim was predicated was either known or reasonably available to petitioner, we reverse the district court‘s judgment granting the writ of habeas corpus.
Barnes planned to rob Bon‘s Supermarket with the help of an accomplice, James Corey, on June 27, 1985. At approximately 10 p.m., Barnes approached Ricky Adams, a supermarket employee who was sweeping the parking lot, and pushed a pistol in his side. Using Adams as a shield, Barnes entered the store. Clyde Jenkins, the store‘s seventy-three-year-old owner, engaged Barnes in a struggle at the front of the store and Barnes shot Jenkins twice. Another store employee, Mohammed Afifi, came from the back of the store and jumped on Barnes. Barnes shook Afifi off, shot and killed him. Barnes then turned and pointed the gun at Adams. At that moment, Jenkins stirred and attempted to rise from the floor. Barnes shot Jenkins a third time and fled. Although Jenkins survived two weeks in the hospital, he too ultimately died from the gunshot wounds.
A handgun belonging to Jenkins was found under or near him when the police arrived. It had not been fired. Barnes has never asserted, nor does he today, that he saw this gun.
Barnes was tried in a bench trial in July 1986 in the Circuit Court for the City of Hampton. At trial, the victim‘s gun was admitted into evidence. The exact location where the police found the gun was never drawn into question and there was no testimony as to the location of the gun. The court convicted Barnes on five counts, including capital murder. In September of 1986, upon finding beyond a reasonable doubt that Barnes’ “conduct in committing the offense was outrageously and wantonly vile in that it did involve an aggravated battery to the victim,” the court sentenced Barnes to death. See J.A. at 124;
In October 1988, Barnes filed a petition for writ of habeas corpus in the Circuit Court in Hampton, raising numerous challenges to his convictions and sentence. The Circuit Court dismissed the petition, J.A. at 146-47, and the Virginia Supreme Court refused the petition for appeal, J.A. at 178. The United States Supreme Court again denied certiorari. Barnes v. Thompson, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766 (1990).
On November 19, 1990, Barnes filed a habeas petition in federal court. He raised the same issues he had raised in the state petition and, in addition, claimed for the first time that the Commonwealth‘s failure to disclose the exact location of the victim‘s gun violated his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), rendering his conviction and death sentence invalid. In June 1991, petitioner moved for, and was granted, a voluntary dismissal of his petition.
Barnes then filed a second state habeas petition in the Virginia Supreme Court, raising the exculpatory-evidence claims. J.A. at 179-204. The state court dismissed the petition “on grounds that no writ shall be granted on the basis of any allegation the facts of which the petitioner had knowledge at the time of filing of any previous petition.
In February 1992, Barnes filed a second federal habeas petition. In a memorandum opinion dated July 14, 1992, the district court dismissed seven of the ten assignments of error, but directed that an evidentiary hearing be conducted on Barnes’ claims that the Commonwealth‘s failure to disclose the precise location of the gun violated Barnes’ due process rights, that the death penalty was improperly imposed if the victim was armed, and that Barnes was denied effective assistance of counsel. J.A. at 294-332.
On January 18, 1994, following a two-day hearing, the district court held that the Commonwealth had violated Barnes’ due process rights by withholding the gun‘s precise location and that the suppression of this evidence, although not sufficient to undermine confidence in Barnes’ capital-murder conviction, was sufficiently material that the death sentence had to be vacated. Specifically, the court concluded that if the petitioner had had
II.
The Commonwealth argues on appeal that the district court erred in finding that Barnes was not procedurally barred from raising the Bagley claim in his federal habeas petition, given that he defaulted this claim pursuant to
Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and succeeding cases, if a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, he is barred from raising those claims on federal collateral review unless he can show cause for the default and prejudice resulting therefrom. Id. at 87-91, 97 S.Ct. at 2506-09; Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).2 The district court properly recognized that the Supreme Court of Virginia “explicitly relied upon [the] procedural bar” of
A.
Under our precedents, inherent in the state court‘s determination that Barnes’ Bagley claim was procedurally barred under
Assuming arguendo that the location of the gun was material, the governing question for the state court was whether Barnes could have obtained the information through “reasonable and diligent investigation.” McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). “The question is whethеr petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition....” Id. See also Stockton, 41 F.3d at 925 (“Even if [the petitioner] had not actually raised or known of the[] claims previously, he still cannot establish cause to excuse his default if he should have known of such claims through the exercise of reasonable diligence.“); United States v. Wilson, 901 F.2d 378, 380, 381 (4th Cir.1990) (Murnaghan, J.) (“[T]he Brady rule does not apply if the evidence in question is available to the defendant from other sources.’ ... [W]here the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine.” (citation omitted)).4 The question was not, as the district court erroneously presumed, simply whether “the factual basis for petitioner‘s claim was reasonably unknown to petitioner‘s lawyers, in part because of ‘some interference by officials.‘” J.A. at 693 (quoting Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 1776, 100 L.Ed.2d 249 (1988) and Murray v. Carrier, 477 U.S. 478, 488, 106
Barnes, of course, knew from the inception of this case that the police recovered Jenkins’ gun from the store on the night of the murders. At the preliminary hearing, Mr. El-Amin, Barnes’ counsel, questioned a detective regarding the victim‘s revolver, and was told that the gun “was recovered at the scene, shortly after the incident occurred.”5 J.A. at 299-300. Mr. El-Amin even asked the detective whether the gun had been fired. J.A. at 300. Mr. El-Amin and the Commonwealth‘s attorney thereafter entered into a trial stipulation which stated:
A .38 caliber Smith & Wesson revolver serial number 204J49, Commonwealth‘s Exhibit Nine was located inside the Bon‘s Super Market by police the night of the shooting. Jeff Jenkins, grandson of Clyde Jenkins, and also an employee of the store, has identified this weapon as belonging to his grandfather. The weapon had not been fired.
J.A. at 57. And the revolver itself was presented into evidence as Commonwealth‘s Exhibit Nine, without objection from Mr. El-Amin and without him asking any question concerning the location where the gun was found. J.A. at 57, 299. Therefore, the only question is whether, knowing that the gun was recovered at the scene of the crime, Barnes either actually knew, or reasonably could have obtained, the information as to precisely where the gun was found.
The record evidеnce plainly supports the state court‘s conclusion6 that Barnes either knew or easily could have discovered the location of the victim‘s gun through “a reasonable and diligent investigation.” Barnes’ co-defendant, James Corey, was tried less than two weeks before Barnes was tried. At Corey‘s trial, Officer Banks, who retrieved the gun from the supermarket, testified that the gun was found underneath the victim‘s body. J.A. at 577. Not insignificantly, this
The facts underlying Barnes’ exculpatory-evidence claim having been reasonably available to him before he filed his first habeas petition, the Supreme Court of Virginia‘s finding that Barnes failed to show cause for his failure timely to raise his claim based upon this evidence was supported by the evidence of record.
B.
Even if Barnes could have shown cause, he could not have shown the requisite prejudice. To establish prejudice from an inability to present an exculpatory-evidence claim, a petitioner must demonstrate that the prosecution‘s withholding of the exculpatory evidence “worked to his actual and substantial disadvantage, infecting his [sentencing] with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982).
The district court concluded that the “withheld” information prejudiced Barnes’ sentencing because “the presence of a weapon on a murder victim, even if its presence is not known to the killer, is far from irrelevant.” J.A. at 690. In a somewhat remarkable argument, the court hypothesized that,
“Had the location of the gun been known to him, Mr. El-Amin, at the sentencing phase in this case, could have presented the Court with a scenario in which Mr. Barnes was confronted with an armed man rather than a helpless one. Under such a scenario, a fact finder could infer that in firing his own gun, Mr. Barnes was motivated by an understandable fear for his safety. Even when Mr. Jenkins was on the floor after Mr. Barnes’ first two shots, he was not completely incapacitated, as shown by his attempt to rise. Mr. Jenkins, although wounded, may have been within reach of a gun, and therefore may still have posed a significant danger to Mr. Barnes. In such a situation, the fact finder might well find that the nature of Mr. Barnes’ actions did not constitute an aggravated battery, and/or did not merit a sentence of death.
J.A. at 692. Thus, according to the district court, prejudice of constitutional magnitude exists in denying trial counsel the opportunity to argue at sentencing that Barnes was “motivated by an understandable fear for his safety,” from the “significant danger” of a seventy-three-year-old man who lay on the floor, shot twice,7 even though Barnes has never asserted—neither when he testified at his sentencing nor even today—that he saw a gun. Putting to one side the question of whether counsel would be permitted to argue that Barnes feared for his own life, given the complete absence of evidence or even suggestion that Barnes saw Jenkins’ gun, Virginia law renders a victim‘s mere possession of a firearm irrelevant to whether an aggravated battery was committed. The state‘s highest court has dеfined an aggravated battery as “a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” M. Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). In Barnes’ direct appeal, the Virginia Supreme Court further clarified that “a killing inflicted by multiple gunshot wounds may constitute an ‘aggravated battery’ ... where there is an appreciable lapse of time between
The Virginia Supreme Court‘s decision in R. Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871, cert. denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990), confirms that the victim‘s defenselessness vel non is immaterial to the aggravated-battery inquiry. In that case, the defendant fatally shot a police officer, after the armed officer approached him and, in the court‘s words, a “gun battle” ensued. Id., 389 S.E.2d at 874-75. The Virginia court held that the jury‘s finding of aggravated battery was “supported by the evidence of multiple wounds,” id. at 886, without even mentioning that the victim was not only armed, and the defendant undoubtedly knew he was armed, but, the victim actually shot the defendant at some point during the confrontation, id. at 875, 883, 885. Indeed, if the defendant‘s account is believed, the victim shot first and he (the defendant) merely returned fire. Id. at 875, 881-82.9 The concurrence contends that “[a] review of the cases does not disclose a single instance where Virginia courts have upheld an aggravated battery finding when, on the facts as known to the court, the defendant inflicted the wound in response to the armed resistance of the victim.” Post at 982. Apparently, the concurrence has misread R. Smith.
In the same vein, the concurrence seriously misreads Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219 (1995), as clearly supporting the proposition that “[a]ggravated battery in Virginia for purposes of a finding of ‘vileness’ is premised on the existence of a victim who is not armed and not resisting.” Post at 982. The concurrence believes that this proрosition is clearly established by the observation in that case that “[s]entencing bodies in this Commonwealth have often imposed the death penalty where the victim was a store clerk, was unarmed, provided little or no resistance, and was killed at literally point blank range.” Chandler, 455 S.E.2d at 227. On its face, this language does not permit the inference drawn by the concurrence. When the passage is understood in context, it is even clearer that the passage in no way can be read as supporting the view of Virginia law taken by the concurrence. The court made this observation in the course of a proportionality review, during which it compares Chandler‘s crime and sentence to comparable crimes and sentences of other defendants. The court of course noted that in similar contexts—where the victim was unarmed and non-resistant—that the death sentence had been imposed; those were facts of Chandler‘s crime. Those circumstances, however, are no more necessary for imposing the death penalty than that the victim be a “store clerk,” a fact that was also
III.
In his related appeal, Barnes claims that he was denied effective assistance of counsel because his trial counsel failed to discover and present all available mitigating evidence. Specifically, Barnes contends that a proper investigation would have revealed that he was reared in a violence-ridden and abusive home, and that he was mentally impaired. At the federal evidentiary hearing on this claim, Barnes presented examples of the evidence he contends El-Amin should have elicited, including testimony from his mother, grandmother, and half-brother, and from three experts, a psychiatrist, a neuropsychologist, and a psychiatric social worker.10 The district court correctly concluded that Barnes had failed to satisfy the first requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that “in light of all the circumstances, the identified acts or omissions [of counsel be] outside the wide range of professionally competent assistance,” id. at 690, 104 S.Ct. at 2066. J.A. at 676-84.11
The Supreme Court has provided guidance for determining whether an attorney‘s investigation into matters that might aid his client constitutes deficient reрresentation:
[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.
The reasonableness of counsel‘s actions may be determined or substantially influenced by the defendant‘s own statements or actions. Counsel‘s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically upon such information.... [W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel‘s failure to pursue those investigations may not later be challenged as unreasonable.
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. In particular as it relates to Barnes’ claim, trial counsel is not obligated to seek a psychological examination and may rely on the truthfulness of his client and those whom
Applying this standard, it is evident, as the district court concluded, that El-Amin‘s decision to limit his investigation and to not present certain mitigating evidence was reasonable, based on his assessment of the law and his interviews with Barnes and his family. El-Amin testified that he reviewed the relevant Virginia law and concluded that his primary task at the sentencing hearing was to prevent a finding of “future dangerousness,” since he believed that it was less likely that the court would find that the circumstances of these murders were vile or constituted an aggravated battery. J.A. at 547-49. This tactical approach required that El-Amin portray Barnes as a sane or nonviolent individual. In preparing for this presentation, El-Amin interviewed Barnes on several occasions and questioned his mother and grandmother repeatedly, all of whom spoke positively about Barnes’ family background, never suggesting in any way that his mental health was in doubt. J.A. at 549-50, 555. At the district court hearing, El-Amin recounted that,
Herman spoke well of his background. I learned from him and his mother and his grandmother that he had what I understood at the time to be a supportivе family; that he was very, very dependent, almost to a fault. He had extreme love and a protective relationship with his mother and grandmother.... So there was never any indication of any ill will that was directed toward his background in terms of growing up other than just being influenced by the streets.
J.A. at 555. Barnes’ probation officer from Philadelphia confirmed El-Amin‘s belief that the family situation was strong, and nothing in the presentence report, arrest records, or probation records refuted this impression. J.A. at 560-61, 566-67. Simply, El-Amin did not seek evidence of childhood abuse or mental impairment because there was “no indication” that such evidence existed and because such evidence would not have been “germane to [his] defense.” J.A. at 556. Indeed, he believed that evidence of pathology would have been counterproductive to his strategy. As the district court recognized, El-Amin “made a tactical decision not to [pursue a psychiatric or similar evaluation],” J.A. at 683-84, because it would have been “cross-purpose evidence” that might have led the sentencing authority to conclude that Barnes posed a continuing threat to society, J.A. at 554. Barnes, thus, is the paradigm of “a defendant [who] has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. See Burger v. Kemp, 483 U.S. 776, 793-95, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638 (1987).
El-Amin decided not to present the good character evidence that he learned from Barnes’ mother and grandmother because he believed that if vileness were found, traditional character evidence, under the circumstances and given its source, would not lead the judge to impose life imprisonment. J.A. at 559. This was likewise a reasonable tactical choice, see Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir.1991), cert. denied, 502 U.S. 1112, 112 S.Ct. 1219, 117 L.Ed.2d 456 (1992); Turner v. Williams, 35 F.3d at 900-03, cert. denied, ___ U.S. ___, 115 S.Ct. 1359, 131 L.Ed.2d 216 (1995). Barnes has not overcome the presumption that his counsel‘s decision constituted sound trial strategy. See Strickland, 466 U.S. at 699-700, 104 S.Ct. at 2070-71; Burger, 483 U.S. at 788-96, 107 S.Ct. at 3122-27; Bunch v. Thompson, 949 F.2d 1354, 1363-65 (4th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 3056, 120 L.Ed.2d 922 (1992).
Of course, even if Barnes were able to show that El-Amin should have presented the evidence of abuse and dysfunction, it is unlikely that he could have satisfied Strickland‘s second requirement of a “reasonable probability” that the outcome would have been different but for El-Amin‘s failure to develop this case in mitigation. As the Supreme Court observed in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), evidence of a defendant‘s mental impairment “may diminish his blameworthiness for his crime even as it indicates that there is
CONCLUSION
The judgment of the district court granting the petitioner‘s writ of habeas corpus is reversed and the case is remanded with instructions to reinstate the death sentence. That portion of the district court‘s order finding that the petitioner received effective assistance of counsel is affirmed.
REVERSED IN PART AND AFFIRMED IN PART.
MURNAGHAN, Circuit Judge, concurring in the judgment:
The majority today announces a new rule of Virginia state law—that the “vileness” predicate may be met in sentencing a capital defendant to death irrespective of whether the defendant observed that the victim was armed and resisting at the time the defendant fired the final shot, so long as the defendant inflicts a number of wounds and there is a lapse of time between the first wound and the wound that ultimately causes the death. Because I do not believe that the
federal judiciary should announce a new rule of state criminal law when the state‘s highest court has indicated that it would not announce the same rule, I cannot join Part II of the majority opinion. However, because Barnes’ habeas counsel has failed to present affirmative evidence that Barnes may have seen the victim drawing a gun, Barnes has not borne his burden of showing a reasonable probability that the outcome of his sentencing proceeding would have been different had the prosecution disclosed the location of the victim‘s gun. Therefore, although I do not agree with the majority‘s statement as to what constitutes proof of vileness, I concur in the result reached by the majority in Part II.
A. Barnes’ Bagley Claim:1 The Majority Opinion.
The majority states that “Virginia law renders a victim‘s mere possession of a firearm irrelevant to whether an aggravated battery was committed.” Op. at 977. While strictly speaking, that is true where mere possession alone of a firearm is concerned, see R. Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871, cert. denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990), the inference drawn by the majority—that a victim‘s brandishing of a weapon to resist a defendant is also irrelevant—is not a correct statement of Virginia law.2 Rather, Virginia courts have held only that the victim‘s mere possession of a firearm is irrelevant where a defendant is not threatened by the victim‘s firearm. See R. Smith, 389 S.E.2d at 874, 883 (upholding aggravated battery instruction where defendant shot an armed police officer after stating that he would shoot the first police officer he saw and that he hoped he would be shot in return).
“vileness” is premised on the existence of a victim who is not armed and not resisting.
As a federal court, we are not free to make state law which diverges from the path that the highest court of the state has indicated it would take if faced with the question. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967) (“[When] the underlying substantive rule involved is based on state law ... the State‘s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, [the federal court] may be said to be, in effect, sitting as a state court.“). Certainly within the greater power to reject the death penalty in its entirety is the lesser power of the states to limit the scope of aggravating factors which may result in the penalty. The role of the federal judiciary is merely to insure that the state system for imposing the death penalty comports with constitutional limitations. See, e.g., Gregg v. Georgia, 428 U.S. 153, 174-75, 96 S.Ct. 2909, 2925-26, 49 L.Ed.2d 859 (1976). In the context of reviewing a statutory aggravating factor such as the “aggravated battery” component of the vileness predicate аt issue here, the task is to check that the factor “furnish[es] principled guidance for the choice between death and a lesser penalty.” Richmond v. Lewis, 506 U.S. 40, 46, 113 S.Ct. 528, 534, 121 L.Ed.2d 411 (1992). It is not within our authority to broaden the scope of a state‘s chosen definition of an aggravating factor in its sentencing scheme. Cf. Maynard v. Cartwright, 486 U.S. 356, 364-65, 108 S.Ct. 1853, 1859-60, 100 L.Ed.2d 372 (1988) (refraining from directing state as to which factors may be aggravating factors for imposition of death penalty purposes, but merely imposing the constitutional requirement that the factors chosen by the state may not be vague).
B. Barnes’ Bagley Claim: Materiality.
However, I too conclude that Barnes’ Bagley claim must fail, but on other grounds. A petitioner in state confinement may assert a claim on federal habeas review only if he or she either has not defaulted the claim in state court, or has shown cause and prejudice for the default. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). A petitioner may then prove the merits of his or her claim. To assert a Bagley claim successfully, a petitioner must show that the prosecution violated its duty to disclose exculpatory evidence, and that the evidence was material. See United States v. Bagley, 473 U.S. 667, 669, 105 S.Ct. 3375, 3376, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Materiality under Bagley is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also Adams v. Aiken, 965 F.2d 1306, 1314 (4th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1993). The majority finds that Barnes has prоcedurally defaulted his Bagley claim in state court, and that he has shown neither cause nor prejudice for the default. Although the majority is mistaken as to those default issues, I concur in the result reached by the majority because I find that Barnes has failed to prove the materiality prong of his Bagley claim.
I would find that Barnes has failed to demonstrate materiality in the instant case, not because the victim‘s firearm is irrelevant as a matter of course, but because Barnes has failed affirmatively to produce any evidence that he saw the firearm at the time of the shooting. Under R. Smith, the defendant cannot avoid an aggravated battery finding by the mere fact that the victim possessed a gun—the sentencing judge must
also find some reasonable belief that the defendant may have shot the victim in response to resistance by the victim. See
In light of my finding that Barnes has not met the materiality prong of his Bagley claim, I need not decide whether he has shown a violation of the duty to disclose the location of the gun. However, in order to respond to the claims made by the majority in its alternate holdings, I discuss the issue briefly.
C. Barnes’ Bagley Claim: Duty to Disclose.
If it were necessary to decide the question, I would find that Barnes has shown the first prong of his Bagley claim—that the prosecution violated its duty to disclose exculpatory evidence under United States v. Bagley and Brady v. Maryland. The government‘s
Evidence of the location of the victim‘s gun here was supplied to the prosecution by a police officer in a police report. Barnes’ trial counsel made a Brady request for “[a]ny material or information which would tend to reduce the punishment of the defendant, including but not limited to ... any mitigating circumstances favorable to the defendant.” The prosecution answered inaccurately that it had no such information. The prosecution also furnished defense counsel with the misleading stipulation quoted by the majority. Op. at 976. The majority‘s statement that “[t]he record evidence plainly supports the state court‘s conclusion that Barnes could have discovered the location of the victim‘s gun through ‘a reasonable and diligent investigation,‘” op. at 976-77, is doubly inaccurate. Not only did the state court never make such a finding,5 but no evidence was submitted to substantiate the Commonwealth‘s
D. Barnes’ Bagley Claim: State Procedural Default.
As noted above, I find that Barnes has not defaulted his Bagley claim in state court.
Under Virginia state law, a habeas claim is procedurally defaulted if a petitioner had knowledge of the facts upon which the claim is based at the time of filing any previous habeas petition.
In the instant case, Barnes had filed a first state habeas petition raising, inter alia, ineffective assistance of counsel, but not raising nondisclosure of the gun‘s location. Barnes did not discover the location of the gun, and the nondisclosure, until after his first habeas petition had been denied. He then filed his second state habeas petition, raising for the first time in state court the nondisclosure
In light of the finding that Barnes has not defaulted his Bagley claim in state court, I need not decide whether, if he had defaulted the claim, he has shown cause and prejudice for the default. However, in order to respond to the claims made by the majority in its alternate holdings, I discuss the issue briefly.
E. Barnes’ Bagley Claim: Cause and Prejudice.
Even if Barnes had procedurally defaulted his claim in state court, I would find that Barnes has amply demonstrated cause for the default. The majority‘s conclusion that Barnes’ trial counsel made a “tactical” decision not to discover the location of the victim‘s handgun, op. at 977, is unsupported by the record. Neither the Commonwealth nor the majority has come forward with a single tactical reason why a defense attorney would not want to discover the location of a weapon possessed by a victim. Rather, trial counsel‘s uncontradicted testimony in the district court establishes that he concluded, based on statements made by the prosecution, that the victim‘s firearm was not at the immediate scene of the crime.
The statements by the prosecution included the stipulation offered by the prosecution which is quoted by the majority, and the prosecution‘s response to trial counsel‘s aforementioned request for any material or information which would tend to reduce the punishment of the defendant. It was reasonable for trial counsel to believe the prosecution‘s answer that there was no such material or information in its possession, rather than interviewing the police who had been at the scene. It was reasonable for trial counsel to busy himself preparing for Barnes’ trial rather than attending the trial of Barnes’ code-
In fact, had trial counsel‘s decision not to investigate further and to rely upon the assumed honesty of the prosecution‘s answer been unreasonable, then Barnes would have made a viable showing of the unreasonable performance prong of an ineffective assistance of trial counsel claim for failure to investigate the location of the firearm. The majority wants to have it both ways, finding both reasonable performance as to Barnes’ claim of ineffective assistance of counsel for failure to investigate the location of the gun, op. at 977, and lack of reasonable investigation as to Barnes’ Bagley claim, op. at 977; I cannot concur in such inconsistent findings where, as here, there has been no showing of a tactical decision by trial counsel not to investigate the location of the gun, and the prosecution‘s failure to disclose the location of the gun was an objective factor external to Barnes’ defense which impeded his counsel‘s efforts to raise the issue at trial. Cf. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645 (holding that ineffective assistance constitutes cause, but mere attorney tactical error is not necessarily cause, unless “some objective factor external to the defense” such as “some interference by officials,’ made compliance impracticable” (internal citations omitted)).
However, for the same reasons that I do not find materiality shown as to Barnes’ Bagley claim, see supra, if Barnes had defaulted the claim in state court, I would find that he was not prejudiced by the default.
F. Barnes’ Ineffective Assistance Claim as to his Trial Counsel‘s Failure to Present Evidence of Mitigating Factors at Sentencing.
As to Part III, I concur in the majority‘s finding that Barnes has not shown that his attorney‘s performance fell below an objective standard of reasonableness. I therefore find it unnecessary to reach the question of whether Barnes was prejudiced by his attorney‘s performance, and I do not join the majority‘s opinion to the extent that it discusses whether the outcome of Barnes’ sentencing would have been different had his attorney‘s performance been different. However, again to respond to the conclusions made by the majority, I will discuss the prejudice prong of Barnes’ ineffective assistance of counsel claim briefly.
The standard for showing prejudice is less than a preponderance standard; the petitioner must show merely that trial counsel‘s ineffectiveness “undermine[s] confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Moreover, review of the district court‘s findings of prejudice on an ineffective assistance of counsel claim is de novo. See Fields v. Attorney General of the State of Maryland, 956 F.2d 1290, 1297 n. 18 (4th Cir.1992) (listing standards of review applicable to habeas proceedings).
If it were necessary to decide the question, I would find that the failure to raise evidence of past abuse was not prejudicial, because past abuse has often been found by Virginia courts to have little mitigating weight. See, e.g., Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360, 371 (1992) (upholding death sentence in face of evidence of tragic upbringing of defendant), cert. denied, ___ U.S. ___, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993); Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d 352, 360 (1987) (upholding death sentence in face of evidence of an unfortunate home situation and troubled childhood), cert. denied, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987). However, I would find prejudicial the failure to raise evidence of Barnes’ mental defects and his past responsiveness to a juvenile rehabilitation program. The majority states that evidence of mental defects could have led to a finding of dangerousness, and therefore the failure to present the evidence of mental defects was not prejudicial to petitioner. However, the evidence regarding Barnes’ mental defects is that he has brain damage and lowered intellectual functioning, not some type of mental illness which
Conclusion.
In sum, because Barnes has not shown materiality of the location of the victim‘s gun, and because he has not shown unreasonable performance by his trial counsel, I concur in the result reached by the majority, reversing the writ of habeas corpus and remanding with instructions to reinstate the death sentence. However, I also respectfully disagree with several assertions of law made by the majority, as I have noted throughout. I have been presented with many statements of dicta and alternative holdings which have led to the necessity of an attempt to rebut the erroneous statements which need not have been made in the first place.
FRANCIS D. MURNAGHAN, JR.
UNITED STATES CIRCUIT JUDGE
Notes
The concurrence also maintains that it would “find[] that Barnes ha[d] not defaulted his Bagley claim in state court.” Post at 985; id. at 985-86. This course is likewise foreclosed under law. A basic tenet of federal habeas review is that a federal court does not have license to question a state court‘s finding of procedural default, if based upon an adequate and independent state ground. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989); Ashe v. Styles, 39 F.3d 80, 85-86 (4th Cir.1994) (Murnaghan, J., joining). The federal court may only inquire into whether cause and prejudice exist to excuse that default, not into whether the state court properly applied its own law. Id. The concurrence quite obviously has confused an inquiry for cause with an inquiry into the default determination.
Of course, if one does not appreciate that the cause and prejudice inquiry is mandated and that the state procedural default finding is binding on a federal court, then one will indeed believe, as the concurrence does, that within the opinion for the court there are “many statements of dicta and alternative holdings.” Post at 988.
The majority hedges on its holding that the victim‘s use of a weapon is irrelevant by responding to Barnes’ argument concerning the threat posed to Barnes by the victim here. The majority states that it “find[s] hollow El-Amin‘s contention on Barnes’ behalf that after the two shots, Jenkins ‘was still combative ...‘” Op. at 977 n. 6. However, the majority fails to note that it was the prosecution‘s witness, Ricky Adams, who testified that Jenkins was attempting to rise, and no medical authority testified to the contrary. Not being a medical doctor myself, I do not speculate as to whether a man who has been shot and attempts to rise can shoot a handgun, but instead accept the testimony presented at trial.[Section 2254(d) does not] specify any procedural requirements that must be satisfied for there to be a “hearing on the merits of a factual issue,” other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by “a written finding, written opinion, or other reliable and adequate written indicia.”
Id. at 546-47, 101 S.Ct. at 769. The majority‘s contrary reading of R. Smith inexplicably relies on defendant Smith‘s version of events, a version which was not supported by the physical evidence, see R. Smith, 389 S.E.2d at 881-82 (“[O]nly Smith fired a rifle and ... the first shots fired were ‘real sharp ... cracks’ indicative of rifle fire....“), and which was rejected by the jury, see id. at 882 (“[T]he jury was entitled to disbelieve Smith‘s testimony and find it was [Smith] who fired the first shot.“). “Apparently,” the majority “has either misread or failed to read R. Smith,” Op. at 978.Q (by Mr. El-Amin): Detective Browning, I have some questions directed to some evidence that was obtained. Two thirty-eight caliber revolvers were recovered and submitted to the lab is that correct?
A (by Detective Browning): Yes.
Q: Where did you get them?
A: One [Jenkins’ gun] was recovered at the scene, shortly after the incident occurred. The other [the murder weapon] was recovered on Saturday after the incident.
Q: Where was the one recovered Saturday?
*
Q: All right, and the thirty-eight caliber that was found at or near the scene, had that been fired?
A: No.
J.A. at 299-300. The majority‘s belief that a state court‘s default determination under a state law providing that “[n]o writ shall be granted on the basis of any allegation the facts of which the petitioner had knowledge at the time of filing any previous petition,”Even if the concurrence was correct in its assertion that a state court finding under
We simply have no idea what the concurrence means when it says that our reference in Stockton to the petitioner‘s actual or constructive knowledge “does not relate to a Virginia state court finding under
An example using simple facts may help to explain why default and cause are distinct questions. Suppose, for example, that rather than dismissing Barnes’ state habeas petition for failure to make his Bagley claim at the time he filed his first state habeas petition, the Virginia Supreme Court instead had dismissed the petition because it was filed on a Tuesday. Suppose also that, for purposes of administrative convenience, Virginia had a procedural rule requiring that habeas petitions may only be filed on Mondays. Suppose further that Barnes’ petition had in fact been filed on a Monday, but that due to the fact that the Virginia Supreme Court had examined the calendar for a different year, the Virginia Court mistakenly believed that Barnes had filed on a Tuesday. In such a case, federal habeas review would not be barred for precisely the same reason it is not barred here: Barnes has not procedurally defaulted in state court. Because Barnes never filed on Tuesday, he never defaulted; it would be inaccurate for the federal court to “confuse” the inquiry by saying that Barnes has shown cause for a [nonexistent] default. The same is true here; under the law of the state of Virginia, Barnes never defaulted his Bagley claim.