JERRY TERRELL JACKSON, Petitioner-Appellee, v. LORETTA K. KELLY, Warden, Sussex I State Prison, Respondent-Appellant. JERRY TERRELL JACKSON, Petitioner-Appellant, v. LORETTA K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.
No. 10-1, No. 10-3
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 25, 2011
PUBLISHED. Argued: January 26, 2011. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:06-cv-01097-LMB-TCB). Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
COUNSEL
ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Loretta K. Kelly, Warden, Sussex I State Prison. Michele Jill Brace, Washington, D.C., for Jerry Terrell Jackson. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General of Virginia, Richmond, Virginia, for Loretta K. Kelly, Warden, Sussex I State Prison. Philip E. Holladay, Jr., Taryn Koball, KING & SPALDING LLP, Atlanta, Georgia, for Jerry Terrell Jackson.
OPINION
DUNCAN, Circuit Judge:
In the fall of 2002, a jury found petitioner Jerry Jackson guilty of breaking into 88-year-old Ruth Phillips‘s home, raping her, and smothering her to death with a pillow from her bed. Jackson was sentenced to death. Jackson‘s direct and collateral appeals were denied by the Supreme Court of Virginia. Jackson sought federal habeas relief, which the district court granted as to his penalty-phase claims following an evidentiary hearing.
The government appealed, urging that the district court abused its discretion by holding the evidentiary hearing and that relief was erroneously granted on Jackson‘s claims that counsel‘s development and presentation of mitigation evidence, as well as his failure to object to alleged instructional error, were constitutionally deficient. Jackson has cross-
We assess the merits of Jackson‘s petition under the deferential standards spelled out in Strickland v. Washington, 466 U.S. 668 (1984), and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA“),
I.
A.
On Sunday, August 26, 2001, 88-year-old Ruth Phillips did not show up to church. Jackson v. Commonwealth, 590 S.E.2d 520, 524 (Va. 2004) (”Jackson I“). Concerned by her absence, Mrs. Phillips‘s son tried reaching her by telephone. Id. When there was no answer, he went to her Williamsburg, Virginia, apartment to check on her. Id. After letting himself in, he found his mother‘s body “lying ‘twisted and exposed’ on a bed in her bedroom.” Id. As he later described it, her “leg was twisted around, and her pubic region was exposed[; h]er breast was exposed[; and h]er nightgown was up around her neck.” Id. (alterations in original).
Mrs. Phillips‘s autopsy showed that she had died of asphyxia, which “occurs when the brain is without a supply of oxygen for four to six minutes.” Id. The autopsy also found a bruise on her nose and lacerations on the exterior and interior of her vagina. Id. A crime scene investigator recovered a hair from Mrs. Phillips‘s chest and another from the bed underneath her stomach; more hairs were found in the vicinity of her left thigh. Id. Forensic analysis revealed that several of
In December 2001, investigators conducted a videotaped interview with Jackson. Jackson I, 590 S.E.2d at 524. After waiving his Miranda rights, he “admitted entering Mrs. Phillips’ apartment, searching through and taking money out of her purse.” Id. Jackson claimed he did not know Mrs. Phillips was home when he flipped on the light and began to sift through her purse. Id. As a result, he was “scared” when Mrs. Phillips, who had been lying in bed, exclaimed: “What do you want? I‘ll give you whatever, just get out.” Id.
Jackson acknowledged that when he realized Mrs. Phillips had seen him, “he held a pillow over her face for two or three minutes and tried to make her ‘pass out’ so she could not identify him” and further “admitted that he inserted his penis into her vagina while he was holding the pillow over her face.” Id. at 524-25. Jackson added that after exiting through a back window, he drove away in Mrs. Phillips‘s car, which he ultimately abandoned. Id. at 524-25. He also reported that he used the sixty dollars he stole from Mrs. Phillips‘s purse to buy marijuana. Id. at 525. Jackson repeatedly insisted that he had not intended to kill Mrs. Phillips. Id.
A Virginia grand jury indicted Jackson in March 2002 and charged him, inter alia, with two counts of capital murder for the premeditated killing of Phillips in the commission of rape or attempted rape and in the commission of robbery or attempted robbery. Id. at 523.
Jackson‘s trial was bifurcated into a guilt and a penalty phase. During the guilt phase, Jackson retreated from his earlier statement to law enforcement, testifying that he had con-
The jury found Jackson guilty of both capital counts and of various other state crimes. Id. at 523. Following penalty-phase proceedings—which we discuss in greater detail below—the jury found a “probability that [Jackson] would commit criminal acts of violence that would constitute a continuing threat to society” and recommended a death sentence on both capital counts. J.A. 983-85. In April 2003 the state circuit court accepted the jury‘s recommendation and imposed a death sentence.
Jackson appealed his convictions. The Supreme Court of Virginia affirmed in January 2004. See Jackson I, 590 S.E.2d at 520. The United States Supreme Court declined review. Jackson v. Virginia, 543 U.S. 891 (2004).
B.
On December 3, 2004, Jackson “filed an oversized habeas petition with the [Supreme Court of Virginia] along with a motion for leave to exceed the court‘s 50-page limit.” J.A. 2384. The Supreme Court of Virginia denied the motion for extra pages and directed Jackson to file a “corrected petition.” Id. at 1140. Jackson filed an amended petition on January 4, 2005, alleging fourteen distinct claims of constitutional error.
The Supreme Court of Virginia rejected each of Jackson‘s habeas arguments and denied his petition on its merits on March 24, 2006. See Jackson II, 627 S.E.2d at 780. We briefly review the state court‘s analysis of Jackson‘s claims at issue in this appeal: (1) that defense counsel1 provided consti-
The Supreme Court of Virginia rejected Jackson‘s argument that counsel‘s failure to interview his brother and sister, Damien and Chandal Jackson, constituted ineffective assistance of counsel. The court reasoned that Jackson‘s claim did not satisfy the “prejudice” prong of the Supreme Court‘s two-part Strickland test for constitutionally deficient representation. Jackson II, 627 S.E.2d at 786 (citing Strickland, 466 U.S. at 687). It did not address whether his claim satisfied the first prong of the test, i.e., whether “counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688; see also McHone v. Polk, 392 F.3d 691, 704 (4th Cir. 2004) (noting that when a defendant “fails to demonstrate sufficient prejudice from certain acts or omissions” a court “need not decide whether counsel‘s performance in those respects was, in fact, deficient under Strickland“).
The court anchored its determination in two related findings. First, it concluded that counsel had presented ample mit-
(E.D. Va. 2010) (”Jackson III“). All references to defense counsel with respect to the penalty phase of Jackson‘s trial are to Protogyrou, who was responsible for that portion of the trial.
Jackson‘s habeas petition included an eight-page affidavit from Damien Jackson and a five-page affidavit from Chandal Jackson, which detailed the testimony they would have offered at trial.
The state court also rejected Jackson‘s claim that counsel “had failed to adequately investigate and present available mitigation evidence concerning [Jackson‘s] good character,” holding that it satisfied neither prong of the Strickland analysis. Id. With regard to counsel‘s performance, the court found that the record of the penalty-phase proceedings “demonstrate[d] that the jury heard evidence of petitioner‘s good qualities, including evidence that petitioner was well-mannered and cooperative, followed directions, was motivated and ambitious, and had positive relationships outside of his immediate family environment.” Id. As for the second prong, the court noted that Jackson had not shown that “additional evidence of his good character, such as his love for his grandmother and his desire that his parents reunite, would have affected the jury‘s determination,” and, as a result, could not demonstrate prejudice. Id.
The Supreme Court of Virginia further held that Jackson‘s claims arising out of alleged instructional error lacked merit. It first rejected Jackson‘s argument that two jurors were not qualified for service because they “indicated that they would not consider age and background as mitigation evidence
The Supreme Court of Virginia denied on its merits Jackson‘s non-defaulted argument that his counsel‘s failure to request an age-and-background instruction constituted ineffective assistance of counsel. Id. at 787. In doing so, the court explicitly rejected Jackson‘s underlying assertion that both jurors’ qualification had been “conditioned” upon the delivery of a particular instruction. Id. at 787. To the contrary, the court explained, “[b]oth jurors were qualified upon the trial court‘s determination that they would be fair and impartial.” Id. As a result, the court reasoned, the failure to request an instruction could not have been prejudicial. Id.
The state court cited additional reasons why Jackson‘s claim satisfied neither prong of the Strickland analysis. It observed that a request by defense counsel for a particularized instruction “would have been properly refused” under Virginia law. Id. at 788 (citing George v. Commonwealth, 411 S.E.2d 12, 23 (Va. 1991); LeVasseur v. Commonwealth, 304 S.E.2d 644, 661 (Va. 1983)). Consequently, the court reasoned, counsel‘s omission was not unreasonable. Id. The court further noted that “the jury was instructed to consider petitioner‘s history, background, and mitigating factors,” in the context of its assessment of “whether petitioner posed a future danger to society.” Id. (emphasis added).
We provide additional detail on the jurors’ statements below in the context of our discussion of Jackson‘s claims of alleged instructional error.
C.
The federal district court for the Eastern District of Virginia granted Jackson a stay of execution in September 2006, and appointed habeas counsel in early December of that year. On December 11, 2006, Jackson moved for an extension of the deadline for his federal habeas petition, to a date “not later than April 17, 2007.” J.A. 1310. Jackson asserted that April 17 was when the statutory one-year limitation period—which had been tolled by his filing of his state habeas petition on December 3, 2004—would expire. See
The court granted an extension to March 16, 2007, explaining that it did not count the tolling period from December 3, 2004, but instead from January 4, 2005—the date that Jackson filed his amended petition. The court noted that the Supreme Court of Virginia‘s habeas decision had identified January 4 as the date Jackson‘s petition was filed. On December 18, 2006, Jackson filed a “Notice,” asserting once again that the tolling period should be counted from December 3, 2004. Jackson provided his “Notice” to the government, but the government did not respond.
Three days later, on December 21, 2006, the government filed a motion for reconsideration of the extension to March 16, urging that no extension was warranted. The government made no mention of Jackson‘s “Notice” nor did it otherwise address the tolling period. The court denied the government‘s motion for reconsideration on January 19, 2007, reaffirming that Jackson had until March 16 to file his petition.
Jackson‘s petition included a request for an evidentiary hearing, which the court granted on February 28, 2008. The court‘s initial order did not specify why the request had been granted but stated generally that Jackson‘s mitigation claim “ha[d] not been adequately developed in the record.” Id. at 1516. In response to a government motion to reconsider the evidentiary hearing, the court clarified that the proceeding was warranted because Jackson‘s filings “alleged sufficient facts that, if fully established, would entitle him to relief on two of the 17 claims raised in his federal habeas petition.” Id. at 1527-28.
The court held the evidentiary hearing on April 30 and May 1, 2008. Nine witnesses testified, including Jackson‘s siblings and the two attorneys who had represented Jackson at trial. On August 14, 2008, the court denied Jackson relief as to the guilt phase of his trial.
Some eighteen months later, on March 29, 2010, the court granted Jackson relief as to the penalty phase, finding that counsel rendered ineffective assistance by failing to investigate and argue key mitigation evidence and by failing to challenge the lack of a jury instruction on age and background. See Jackson v. Kelly, 699 F. Supp. 2d 838 (E.D. Va. 2010) (”Jackson III“). The court recognized “the extremely deferential standards for collateral review of a state court judgment” but concluded that the Supreme Court of Virginia had erred by denying relief. Id. at 843. We review the court‘s lengthy analysis, which is the subject of both the government‘s appeal and Jackson‘s cross-appeal. In light of Cullen‘s admonition
1.
The district court first assessed Jackson‘s claims that his counsel had provided ineffective assistance at the penalty phase by failing to (1) interview Jackson‘s siblings, (2) present scientific evidence linking childhood abuse to adult behavior, or (3) present evidence of Jackson‘s positive traits.
The court began with counsel‘s failure to interview Jackson‘s brother and sister. As the Supreme Court of Virginia had not addressed whether counsel‘s omission satisfied the ineffectiveness prong of the Strickland analysis, the district court assessed that portion of his claim de novo. Id. at 844 (citing Porter v. McCollum, 130 S. Ct. 447, 452 (2009)).
The court discussed counsel‘s efforts to develop mitigation evidence related to Jackson‘s abusive upbringing. The court noted that counsel had pursued that goal by “assembl[ing] a collection of Jackson‘s medical, social, and educational records, which contained references to numerous instances of abuse.” Id. It further observed that counsel had interviewed Jackson, as well as his mother, father, stepfather, godmother, uncle, cousin, and pastor. Id. at 847-48 & n.13.
While recognizing the steps that counsel had taken, the court held that additional research had been warranted. The court rested its conclusion on the contents of the records counsel had assembled, which it discussed in some detail.6 Id. (Text continued on page 14)
[A] report generated after a particularly severe beating by Tim Knight [Jackson‘s stepfather], when Jackson was twelve years old, notes, “There is a previous history of abuse by [redacted] and this incident appears to be much more severe. In addition, neither of the victims reported the abuse; Jerry‘s injuries were discovered by accident and he was reluctant to cooperate with the investigation.” Id. at 539. The “planned, calculated” nature of that incident also leads to the conclusion that more abuse was occurring: “Both boys indicated that [redacted] made them strip naked and exercise so that they would be too tired to run from him during their punishment; [redacted] then beat both of them with his belt while they were naked.” Id. at 625, 538. Another report of the same incident states: “This is the 3rd incident of known physical abuse of Jerry by Mr. Knight and the 1st resulted in maiming charges,” Id. at 625 (emphasis in original), and estimating “the likelihood of reoccurance [sic] [is] high. The children did not report the abuse, & Jerry was afraid to cooperate w/ DSS. They appeared to accept their parents’ decision that they deserved the beatings.” Id. Another report contains a passing reference to a beating with a two-by-four. Id. at 617. A report made when Jackson was nine years old states, “Worker asked if similar incidents had occurred & he stated that about two weeks earlier he had gotten his [redacted].” Id. at 670. A social worker later wrote of Jackson, then age thirteen, “I get the impression that Jerry has been physically beaten by all the adults in his life, starting with his natural father.” Id. at 533. Another record notes that Jackson‘s mother and stepfather “seem[ed] to be confused about how to handle Jerry, since the Court has mandated that Tim cannot use physical punishment.” Id. at 2727.
The records also contain indications of serious neglect at an early age, which should have been explored further. See, e.g., id. at 652 (A police report from 1988, when Jackson was seven years old, states “neighbors called the police when they found 2 children huddled in the stairwell—not the first time [redacted] locked them out of the apt.“); id. at 2729 (referring to Jackson‘s “weak parental subsystem“); id. at 2677-79 (referring to “lack of parental attention“); id. at 2769 (referring to Jackson feeling “loss and abandonment“).
The records in counsel‘s possession also contained leads to other types of mitigation evidence. One report, for instance, contains a reference to Jackson “drinking alcohol” at age twelve, id. at 619,
The court emphasized, moreover, that the records’ troubling contents reflected only “incomplete, limited snapshots of Jackson‘s childhood, documenting only four or five instances of abuse and providing mental health assessments from a few isolated time periods.” Id. at 846. Faced with these glimpses into Jackson‘s background, the court reasoned, “a reasonable attorney would have realized that a thorough investigation into Jackson‘s home life was essential.” Id. at 847. In this regard, the court noted, Jackson‘s parents were unreliable sources of information, as Jackson‘s father and stepfather had been implicated in incidents of abuse, and his mother had at least tacitly “endorse[d]” it. Id. at 848.
Against this backdrop, the court held that counsel‘s decision not to speak to Jackson‘s siblings “was a critical and glaring omission.” Id. at 849. The court observed that both siblings were older than Jackson and had lived in the same household as Jackson for significant stretches of his child-
another to an allegation of sexual abuse by a relative, id., and another to an unexplored allegation that Jackson, at age seven, had been “outright raped” by a visitor at his grandmother‘s house. Id. at 2799-2800. These pieces of information, together with Jackson‘s report to his attorney (reflected in counsel‘s notes) that someone forced Jackson and his brother to masturbate in front of them, Tr. at 237 (“Made him + brother masturbate in front of him.“), that he was “molested for years“, id. at 236, and that his brother was raped by an uncle while Jackson hid in the closet fearing he would be raped next, id. at 357, indicate the likely existence of a wealth of mitigating evidence completely unexplored by trial counsel. Those records also document that Damien would have direct knowledge of the abuse because he was referenced in the reports as well.
Jackson III, 699 F. Supp. 2d at 846-47 (alterations in original and footnote omitted). The court also cited “passing references to diagnosable depression.” Id. at 847.
The court rejected the notion that counsel‘s investigation reflected a “strategic choice” to avoid “the jury drawing unfavorable comparisons between Jackson and his siblings” for two reasons. Id. First, it found that “counsel did not rely on this ‘strategy’ at trial,” citing instances on direct examination in which counsel “opened the door” to cross-examination about Damien, as well as counsel‘s own comparison of Jackson to his brother in closing argument. Id. at 849-50. Second, the court concluded that counsel could not have made a reasonable strategic choice without first speaking to Jackson‘s siblings to assess what testimony they could offer. Id. at 850.
The court next reviewed counsel‘s failure to present expert testimony to link Jackson‘s abusive childhood to his adult behavior. Id. at 851. The court observed that determining whether this omission constituted ineffective assistance was “difficult,” as counsel‘s failure to “discover and present the crucial evidence of Jackson‘s abusive childhood” precluded his establishing “the basis for introducing scientific evidence linking the effects of such a childhood abuse to adult behavior.” Id. Despite this obstacle, the court found, without further explanation, that “counsel‘s . . . failure to connect the dots between childhood abuse and adult behavior must be viewed as yet another instance of deficient performance under Strickland.” Id. at 851-52.
The court then turned to Jackson‘s claim that counsel had failed to investigate and adduce evidence of his positive traits. The court rejected the Supreme Court of Virginia‘s factual conclusion that such evidence had been presented. Id. at 852.
The district court deemed the Supreme Court of Virginia‘s factual finding “an unreasonable determination of the facts in light of the evidence,” id. (quoting
Having concluded that counsel‘s performance was constitutionally deficient in the three respects described above, the court turned to the prejudice prong of the Strickland analysis. Id. at 854. To assess the impact of counsel‘s behavior on Jackson‘s sentence, the court reviewed the evidence presented at the penalty phase of his trial. See id. at 855.
The court first described the government‘s presentation, which it found consisted of testimony from Mrs. Phillips‘s son, two prison officers, and “a victim of a burglary Jackson committed the evening before Phillips was murdered.” Id. The court observed that the government had introduced evidence
The court then briefly reviewed the testimony of the seventeen witnesses defense counsel had called during the penalty phase. Id. at 855-57. These witnesses included: (1) an emergency room doctor who had examined Jackson when he was eleven; (2) a clinical psychologist whose associate had evaluated Jackson when he was eleven; (3) a records custodian from the Newport News Health Department; (4) a child psychologist who had evaluated Jackson when he was fourteen; (5) a pediatrician who had examined Jackson when he was fourteen; (6) a records custodian from the New Horizon Family Counseling Center; (7) a clinical psychologist who had interviewed Jackson when he was fifteen; (8) a police officer who investigated an assault and battery on Jackson by his stepfather when Jackson was eleven; and (9) a social services official who had investigated multiple allegations of child abuse against Jackson. Id. at 855-57.
The district court also noted mitigating testimony from three individuals who had interacted with Jackson and his family when he was a child: (10) the family‘s pastor; (11) Jackson‘s neighbor and godmother; and (12) Jackson‘s cousin and godsister. Id. at 857. The court cited additional testimony from four members of Jackson‘s family: (13) Jackson‘s uncle; (14) Jackson‘s biological father; (15) Jackson‘s stepfather; and (16) Jackson‘s mother. Id. at 857-58. Jackson himself was the seventeenth and final mitigation witness. Id. at 858.
The court also rejected the Supreme Court of Virginia‘s determination “that the new evidence of abuse proffered by Jackson was cumulative.” Id. The court emphasized that an assessment of prejudice arising out of counsel‘s performance during a capital case‘s penalty phase “is not a rote cataloging exercise” to “ensure[] that counsel presented some testimony on each potential area of mitigation.” Id. at 863. Given its determination that the Supreme Court of Virginia‘s inquiry had amounted to such an exercise, the court found that the state court had unreasonably applied federal law by failing to consider “the ‘entire evidentiary picture’ presented to the jury.” Id. (quoting Strickland, 466 U.S. at 696).
In the district court‘s view, counsel‘s presentation amounted to “a parade of ineffective record witnesses,” “contradictory testimony from character witnesses who reported
The court reasoned in particular that the state court had mistakenly viewed as dispositive its determination that speaking with Jackson‘s siblings would not have altered counsel‘s strategy. Id. (citing Jackson II, 627 S.E.2d at 786-87). The court observed that, under the Supreme Court‘s standard articulated in Wiggins v. Smith, 539 U.S. 510 (2003), the pertinent “question is not whether, subjectively, Jackson‘s own counsel would have introduced the evidence,” but instead “whether, objectively, ‘a competent attorney, aware of this evidence, would have introduced it.‘” Id. (emphasis added) (quoting Wiggins, 539 U.S. at 535). As a result, it deemed the state court‘s analysis “contrary to, and an unreasonable application of, Wiggins.” Id.
2.
The court then addressed Jackson‘s assertion that counsel‘s failure to challenge the lack of a particularized mitigation instruction amounted to constitutionally deficient representation.9 Id. at 864. The court recounted the colloquies of two jurors at voir dire, which it concluded showed that “[t]rial counsel and the trial court knew . . . that [these] jurors felt that neither age nor troubled background were mitigating factors.” Id. at 865. The court found that, under these circumstances, the failure to specifically instruct the jury to consider age and background in mitigation “tr[od] on the guarantees of the Eighth Amendment.” Id. In support of its conclusion, it cited the Supreme Court‘s admonition that although “[t]he sentencer . . . may determine the weight to be given relevant mitigating evidence,” it “may not give it no weight by excluding
The court recognized that “failure to instruct a jury as to specific mitigating factors is generally not constitutional error.” Id. at 866 (citing Buchanan v. Angelone, 522 U.S. 269, 278 (1998)). Nevertheless, it found that the “entire context in which the instructions were given,” id. (quoting Buchanan, 522 U.S. at 278), suggested “a defect of constitutional proportion,” id. The court cited three factors as creating a “context” in which a particularized instruction was mandated: the two jurors’ responses during voir dire, the fact that Jackson was twenty years old when he raped and murdered Mrs. Phillips, and the evidence of Jackson‘s abusive background presented during mitigation. Id.
The court rejected the Supreme Court of Virginia‘s conclusion that Jackson‘s claim of instructional error did not satisfy the first prong of the Strickland analysis. The court noted that the state court‘s finding that counsel‘s performance was reasonable relied on its conclusion that the trial court would have “properly refused” any request for a particularized instruction. Id. at 867 n.31 (quoting Jackson II, 627 S.E.2d at 787). The court found this assessment so unsupported by the record as to not merit AEDPA deference. Id. at 867 (citing Uttecht v. Brown, 551 U.S. 1, 20 (2007)). The court cited the trial court‘s statement that jurors would consider age “when they‘re told it‘s a factor” as indisputable evidence that the trial court appreciated “the need for a clarifying instruction,” and would have provided one if asked to do so. Id. The court similarly rejected the Supreme Court of Virginia‘s determination that the future dangerousness instruction‘s charge to jurors to consider Jackson‘s history and background precluded a finding of prejudice on Strickland‘s second prong, finding the court‘s reasoning “contrary to” Supreme Court caselaw. Id. at 867-68. (citing Penry v. Lynaugh, 492 U.S. 302, 323-24 (1989)).
In light of its determination that penalty-phase relief was appropriate on several of Jackson‘s claims, the district court vacated his death sentence. Id. at 870. In April of 2010 the government filed notice of appeal. Jackson filed notice of cross-appeal on May 3, 2010. On August 6, 2010, the district court denied Jackson a certificate of appealability, holding that he had not shown that Virginia courts’ resolution of those claims “was debatable or wrong.” J.A. 2510. We granted Jackson a certificate of appealability for his cross-appeal claims on November 4, 2010.
II.
Before turning to the substantive claims on appeal and cross-appeal, we address two procedural arguments made by the government: (1) that Jackson‘s federal habeas petition was barred by the statute of limitations and (2) that the district court abused its discretion by holding an evidentiary hearing.10
A.
The government argues that Jackson‘s federal habeas petition was time-barred, urging that the district court‘s grant of an extension to April 17, 2007 erroneously extended Jackson‘s filing deadline beyond the one-year statutory deadline. See
Jackson‘s submission of an oversized habeas brief and a motion to permit the extra pages to the Supreme Court of Virginia constituted “delivery and acceptance . . . in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). Jackson‘s initial petition was neither rejected nor dismissed by the Supreme Court of Virginia. Jackson was instead directed to file a “corrected petition” in a timely manner. J.A. 1140. The Supreme Court of Virginia‘s emphasis on “correction” indicates to us that the requested alteration constituted an amendment to Jackson‘s initial filing.
In any event, it is apparent from the record that Jackson relied on the federal district court‘s grant of an extension to April 17, 2007 when timing the submission of his federal
B.
The government also urges that the district court erred by holding an evidentiary hearing. We consider that argument in light of the Supreme Court‘s recent delineation of such hearings’ limited role in federal habeas proceedings.
In Cullen v. Pinholster, the Supreme Court clarified that AEDPA limits federal habeas review “to the record that was before the state court that adjudicated the claim on the merits.” 2011 WL 1225705, at *8. In other words, when a habeas petitioner‘s claim has been adjudicated on the merits in state court, a federal court is precluded from supplementing the record with facts adduced for the first time at a federal evidentiary hearing. See id. at *9 (“It would be strange to ask federal courts to analyze whether a state court‘s adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.“).
The district court did not have the benefit of Cullen‘s guidance when it determined that a hearing was warranted because Jackson had “alleged sufficient facts that, if fully established, would entitle him to relief on two of the 17 claims raised in his federal habeas petition.” J.A. 1527-28. It is now clear, however, that the court‘s reliance on material developed at the
III.
We turn to the standards by which we evaluate the merits of the issues before us on appeal and cross-appeal. Our review is bounded by the familiar contours of AEDPA deference, which, as recently reinforced by the Supreme Court‘s unanimous decision in Harrington v. Richter, 131 S. Ct. 770 (2011), helps to ensure “confidence in the writ and the law it vindicates.” Id. at 780. We may grant habeas relief on claims adjudicated on their merits in state court only if that
adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Appleby v. Warden, 595 F.3d 532, 535 (4th Cir. 2010) (internal quotations omitted) (citing
A state court‘s holding is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from
To demonstrate ineffective assistance of counsel, Jackson must show “that counsel‘s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687). This two-part analysis presents a “high bar” to petitioners, and we must assess their efforts to surmount it with “scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington, 131 S. Ct. at 788 (internal quotations omitted).
Even if Jackson could satisfy the “difficult standard” of Strickland‘s first prong, James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004), he would still be required to show prejudice. In a capital case, “the prejudice inquiry centers on ‘whether
IV.
Against the backdrop of these highly deferential standards we proceed to the issues before us. We begin with the government‘s challenge to the grant of federal habeas relief on Jackson‘s mitigation-related claims. We then turn to the government‘s appeal of the district court‘s grant of relief on Jackson‘s claims of instructional error and to Jackson‘s related claims on cross-appeal. For the reasons described below, we conclude the writ was improvidently granted.
A.
Like the Supreme Court of Virginia, we bypass whether defense counsel‘s performance was deficient and proceed directly to the prejudice prong of the Strickland analysis. See Strickland, 466 U.S. at 688; see also McHone, 392 F.3d at 704. We conclude that the state court‘s finding that Jackson had not shown prejudice arising from any alleged mitigation-related deficiencies was not “clearly unreasonable” and that the district court erred by holding otherwise.
We first address Jackson‘s claim that counsel‘s failure to interview his siblings had a substantial likelihood of affecting the outcome of penalty-phase proceedings. Given the array of evidence of childhood abuse presented to the jury, nothing in the state-court record shows that the Supreme Court of Vir-
As described above, counsel called seventeen mitigation witnesses, including nine professionals, many of whom had treated or worked with Jackson when he was a child, five family members, Jackson‘s godmother, the family‘s pastor, and Jackson himself. These mitigation witnesses’ testimony shed considerable light on Jackson‘s traumatic childhood. For instance, in response to probing inquiries from counsel, the social worker who had researched multiple instances of Jackson‘s childhood abuse read an account of her investigation suggesting that Jackson and his brother had been “outright raped.” J.A. 899. The jury also heard record evidence that Jackson‘s stepfather harangued him in the midst of counseling sessions, stating that “he hate[d] him and that [Jackson wa]s evil.” Id. at 825. These are just two of many, striking examples of physical and emotional abuse presented to the jury at the penalty phase.11
Even the district court‘s selective summary12 of the pro-
Against the backdrop of this mitigation evidence, the Supreme Court of Virginia supportably found that the testimony described in Jackson‘s siblings’ affidavits would have been “largely cumulative” of material already before the jury, as they amounted to “anecdotal evidence of specific instances of the abuse from the perspective of [Jackson‘s] siblings.” Jackson II, 627 S.E.2d at 787. As a result, the state court reasoned, the failure to develop and present Jackson‘s siblings as witnesses was not substantially likely to have affected the outcome of penalty-phase proceedings. Given the breadth and depth of evidence of childhood abuse provided to the jury, we cannot say that determination was clearly unreasonable. See Harrington, 131 S. Ct. at 791.
We also see no basis on which to conclude that counsel‘s alleged failure to present positive character evidence prejudiced Jackson. The district court‘s contrary finding reflected a lack of deference to the Supreme Court of Virginia‘s threshold factual conclusion “that the jury heard evidence of [Jack-
More fundamentally, the district court‘s “reweigh[ing of] the evidence in aggravation against the totality of available mitigating evidence,” was conspicuously one-sided. Wiggins, 539 U.S. at 534; see also Emmett v. Kelly, 474 F.3d 154, 170 (4th Cir. 2007). Specifically, the district court failed to mention considerable evidence regarding the horrific circumstances of Jackson‘s rape and murder of Mrs. Phillips. This omission was particularly striking in light of the government‘s careful emphasis on the disturbing details of Jackson‘s crimes at closing.
The troubling circumstances highlighted by the government included the fact that Jackson intruded upon the “sanctity of [Mrs. Phillips‘s] home,” despite the fact that her car was parked outside; that he had entered through a window that she had left “open just a little bit so she did not have to use [her] air conditioner, so she could save some money,” J.A. 960; that he ignored her plea to take what he wanted and leave; that after raping and murdering her, he absconded with her car; that he left his victim with her dress pulled up and her body grotesquely twisted; and that he used the money he took from her purse to buy drugs.
Finally, we turn to Jackson‘s assertion that counsel failed to present expert testimony linking childhood abuse to adult behavior. The Supreme Court of Virginia did not address this claim, see supra n. 2, and the district court declined to make an independent finding of prejudice arising from the absence of psychological testimony, see Jackson III, 699 F. Supp. 2d at 864. In light of the balance of aggravating and mitigating evidence discussed above, we are unconvinced that such expert testimony would have yielded “a ‘substantial’ . . . likelihood of a different result.” Cullen, 2011 WL 1225705, at *12 (quoting Harrington, 131 S. Ct. at 791).
In sum, we find that even if counsel‘s development and presentation of mitigation evidence was deficient, any deficiencies did not amount to prejudice under Strickland‘s second prong.
B.
The remaining claims on which the district court granted relief, as well as Jackson‘s claims on cross-appeal, all involve alleged instructional error, arising out of the trial court‘s failure to specifically instruct the jury on particular mitigating factors. We begin with the claim on which habeas relief was
We briefly recount the disputed jurors’ colloquies at voir dire. Juror Dana Metheny initially responded “No” when asked by defense counsel whether she would “be able to consider the age of Mr. Jackson in making a decision on whether to impose life without the possibility of parole, or death.” J.A. 639. She repeated her answer after counsel clarified that the question was whether she would consider “age or any other evidence that we may put before you if we so elect . . . in mitigation that you may consider; family, doctors, past, the way he grew up.” Id. at 639-40. However, she repeatedly responded “Yes” when asked if she would consider such issues if instructed to do so by the court. E.g., id. (“If the Court tells you to consider issues in mitigation, such as age, such as background, such as family, such as psychological or psychiatric issues, would you consider those issues in mitigation before you voted for death?” “Yes.“).
Juror Wendy Berube expressed similar reluctance to consider age as mitigating evidence. When asked whether she would consider factors in mitigation, she responded “Yes. I mean, I would consider everything,” adding “I don‘t think that age matters, if that is what you‘re asking.” Id. at 665-66 (emphasis added). When queried “If the Court instructs you age matters, would you then consider it?” she responded “Yes.” Id. at 666. She gave the same response when asked if she would “follow the Court‘s instructions?” Id. In deeming both jurors qualified to serve, the trial court stated: “They don‘t know whether [age is] a factor for them to consider or not. . . . [B]ut when they‘re told that it‘s a factor they must
The district court‘s grant of habeas relief was anchored in its reading of the jurors’ colloquies and the trial court‘s statement as a clear indication that neither juror was qualified to serve unless they were “specifically instructed” to consider various types of mitigation evidence. Jackson III, 699 F. Supp. 2d at 866. However, the Supreme Court of Virginia supportably found that the “contention that qualification of these jurors was ‘conditioned’ upon the giving of a specific instruction is not supported in fact or in law.” Jackson II, 627 S.E.2d at 788. Neither the district court‘s analysis nor Jackson‘s argument on appeal shows that the state court‘s conclusion was clearly unreasonable. As a result, AEDPA mandates that we defer to the state court‘s assessment.13
Both jurors plainly expressed their willingness to consider any and all mitigation evidence if instructed to do so by the judge. The trial court provided just such an instruction, admonishing the jury that “in determining the appropriate punishment you shall consider any mitigation evidence presented of circumstances which do not justify or excuse the
More fundamentally, there is simply no factual or legal basis for the district court‘s apparent assumption that either juror was “conditionally” qualified and that a specific mitigation instruction was therefore constitutionally mandated. Tellingly, in his brief and at oral argument, Jackson could not cite a single case in which such conditional qualification had been recognized. Nor were we able to find one. As the Supreme Court of Virginia found, “[b]oth jurors were qualified upon the trial court‘s determination that they would be fair and impartial.” Jackson II, 627 S.E.2d at 788; see also Bell v. Cone, 543 U.S. 447, 456 (2005) (noting “the presumption that state courts know and follow the law” (internal quotation omitted)). Nothing more was required.
By the same token, the district court‘s reliance on cases in which factfinders declined to give any consideration to mitigating evidence was misplaced. As explained above, there is no evidence here that either of the jurors refused to consider such evidence following the trial court‘s instruction. Cf. Morgan v. Illinois, 504 U.S. 719, 736 (1992) (discussing jurors who “obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty“); Eddings v. Oklahoma, 455 U.S. 104, 113 (1982) (noting trial judge‘s erroneous conclusion that “as a matter of law he was unable even to consider the [mitigating] evidence” of defendant‘s family
For the same reasons, Jackson‘s claims on cross-appeal lack merit. Jackson argues that (1) Juror Berube should not have been seated in the first place because she would not consider age as a mitigating factor, (2) both disputed jurors were rendered unfit for service when no specific instruction was given and the trial court erred by not removing them on its own motion, and (3) defense counsel‘s failure to move to strike the jurors when a specific mitigating instruction was not provided was unreasonable. However, as the Supreme Court of Virginia supportably found, the jurors’ service was not “conditional.” Any concerns the jurors expressed were adequately addressed by the general mitigation instruction.
V.
For the foregoing reasons we reverse the district court‘s grant of habeas relief in this case.
REVERSED