DOUGLAS CHRISTOPHER THOMAS, Petitioner-Appellant, v. JOHN TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.
No. 98-22
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: January 27, 1999. Decided: March 16, 1999
PUBLISHED
Before ERVIN, LUTTIG, and KING, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CA-96-1502-A)
Dismissed by published opinion. Judge Luttig wrote the opinion, in which Judge Ervin and Judge King joined.
COUNSEL
LUTTIG, Circuit Judge:
Douglas Christopher Thomas appeals the district court‘s dismissal of his petition for writ of habeas corpus, challenging his conviction in Virginia state court for capital murder. We deny Thomas’ motion for a certificate of appealability and dismiss the appeal.1
I.
Early in the morning of November 10, 1990, appellant Douglas Christopher Thomas shot and murdered J.B. and Kathy Wiseman
Thomas murdered the Wisemans at the behest of their daughter, Jessica, then 14, whom he was dating, because the Wisemans had been threatening to break up their relationship. On November 6, a few days before the murders, Creech overheard Thomas plotting with Jessica to “[g]et[ ] rid of her parents.” Jessica asked Thomas “if he had enough bullets“; Thomas said that he did. Jessica Wiseman and Thomas then set a time to meet at the Wisemans’ house in order to carry out the murders.
At some point during the week before the murders, the Marshalls, with whom Thomas was living, traveled to Roanoke, Virginia, on a hunting and fishing trip. In order to ensure that the Marshalls did not return unexpectedly and thereby disrupt the plan to murder the Wisemans, Thomas drove to Roanoke and cut the brake lines on the Marshalls’ truck.
On November 9 -- the night of the murders -- Thomas admitted to Creech that he was “going over to Jessica‘s . . . [t]o kill two people.” Thomas told Creech that his plan was to go over to the Wisemans’ house, shoot the Wisemans, and return home and pretend to be sleeping; Jessica would then come to the Marshalls’ house and bang on the door in feigned panic.
After talking to Creech, Thomas left his house with a shotgun loaded with buckshot and went over to the Wisemans’ house, stopping along the way to smoke marijuana. Upon reaching the house, Thomas climbed in through the window of Jessica‘s bedroom, and briefly stopped to talk to Jessica and smoke more marijuana. Thomas then went to the Wisemans’ bedroom. There, he shot J.B. Wiseman once in the head at close range, killing him instantly. He next proceeded to shoot Kathy Wiseman in the head, essentially destroying the left side of her face.
Thomas then returned to Jessica‘s bedroom. Despite her horrific injury, Kathy Wiseman was not immediately killed, but managed to walk down the hall to Jessica‘s bedroom in order to check and see whether her daughter was OK. Upon seeing her mother standing at the doorway to her bedroom, Jessica yelled, “Oh God, Chris, please shoot her again.” According to his subsequent confession, Thomas obliged her request, shooting Kathy Wiseman again in the head and this time killing her instantly. Thomas then returned home; a short time later, Jessica carried out the final stage of the plan, going to the Marshalls’ house and banging on the door in feigned panic. Later that same day, Thomas confessed to both murders.
Thomas pled guilty to the first-degree murder of J.B. Wiseman and related firearms charges, and not guilty to the capital murder of Kathy Wiseman and related firearms charges. He was tried for the murder of Kathy Wiseman as an adult. On Friday, August 23, 1991, a jury found Thomas guilty on all counts. On Monday, August 26, the same jury sentenced Thomas to death, finding as an aggravating factor that his conduct in committing the murder was vile, horrible, or inhuman, and finding no mitigating circumstances. See
On June 5, 1992, the Virginia Supreme Court affirmed Thomas’ conviction and sentence, see Thomas v. Commonwealth, 244 Va. 1 (1992), and on November 2, 1992, the United States Supreme Court denied Thomas’ petition for writ of certiorari , see Thomas v. Virginia, 506 U.S. 958 (1992). On July 26, 1993, Thomas filed a petition for writ of habeas corpus in Virginia state court; on June 17, 1996, the Virginia Supreme Court dismissed the petition. On March 25, 1997,
II.
Appellant initially contends that he was deprived of due process because he was sentenced by a jury, rather than by the trial judge. Specifically, he claims that, under a state law in effect at the time of his sentencing, he was entitled to be sentenced by the trial judge because he was a juvenile defendant charged as an adult. The statute read as follows:
In the hearing and disposition of felony cases properly before a circuit court having criminal jurisdiction of such offenses if committed by an adult, the court, after giving the juvenile the right to a trial by jury on the issue of guilt or innocence and upon a finding of guilty, may sentence or commit the juvenile offender in accordance with the criminal laws of this Commonwealth or may in its discretion deal with the juvenile in the manner prescribed in this law for the hearing and disposition of cases in the juvenile court.
As the district court properly concluded, see J.A. at 1322-23, appellant‘s federal constitutional claim fails because it is procedurally defaulted. Although appellant contended on direct appeal that his sentence by the jury violated state law, he never asserted that such a violation rose to the level of a federal constitutional violation. See id. at 457-58 (brief of appellant on direct appeal); see generally Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.“).4
On direct appeal, the Virginia Supreme Court did not address any federal constitutional claim, but held only that, under the Virginia statute, Thomas was properly sentenced. See Thomas, 244 Va. at 21-23. Insofar as appellant continues to maintain that he was entitled to be sentenced by the trial judge as a matter of Virginia law, we are foreclosed from considering this argument because federal habeas relief simply does not lie for errors of state law. See
III.
Appellant next raises two types of claims of ineffective assistance of counsel. Appellant
A.
Appellant first asserts that trial counsel was ineffective for failing to investigate and present evidence suggesting that Jessica Wiseman, and not appellant, fired the second of the two shots that killed Kathy Wiseman. Appellant claims that he told his court-appointed psychological expert, Dr. Earle H. Williams, that he did not fire the second shot. See, e.g., J.A. at 747 (report of Dr. Williams of March 13, 1991) (noting that “Chris intimated that he did not fire all the shots“); id. at 755-56 (report of Dr. Williams of August 6, 1991) (reporting that Thomas said, “I only shot once“). Appellant contends, however, that trial counsel failed adequately to pursue this lead.
We reject appellant‘s argument because trial counsel‘s “failure” to investigate evidence that appellant did not fire the second shot was not unreasonable. First, overwhelming evidence indicated that appel- lant did indeed fire the second shot. Appellant repeatedly told trial counsel that he fired both of the shots that killed Kathy Wiseman. See, e.g., id. at 765, 935, 937, 1112.5 Trial counsel was evidently aware of the fact that Williams had reported that appellant had indicated that he might not have fired the second shot,6 and confronted appellant with this information: however, even after trial counsel “begged” appellant to “come clean” about the second shot, appellant reiterated that he had fired both shots. Id. at 765, 937, 1018, 1114-15, 1117-18.7
In view of appellant‘s repeated assertions that he fired both shots, trial counsel was under no obligation to investigate further the possibility that appellant did not fire the second shot. As the Supreme Court noted in Strickland:
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 on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when 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. In short, inquiry into counsel‘s conversations with the defendant may be critical to a proper assessment of counsel‘s investigation decisions, just as it may be critical to a proper assessment of counsel‘s other litigation decisions.
Strickland, 466 U.S. at 691; see also Barnes v. Thompson, 58 F.3d 971, 979-80 (4th Cir. 1995) (“[T]rial counsel. . . may rely on the truthfulness of his client and those whom he interviews in deciding how to pursue his investigation.“).
B.
Appellant next asserts that trial counsel was ineffective in preparing and presenting expert psychological testimony as mitigating evidence at sentencing. Appellant essentially makes two alternative claims. First, he argues that trial counsel failed adequately to prepare Dr. Earle Williams, his court-appointed psychiatric expert, to testify at sentencing. Second, he contends that trial counsel erred by using the prosecution‘s own psychological expert, Dr. Henry Gwaltney, rather than Dr. Williams, to testify as to mitigation.
We reject both of appellant‘s claims, concluding that trial counsel‘s actions in dealing with the psychological experts were reasonable. As regards appellant‘s claim concerning trial counsel‘s preparation of Dr. Williams, trial counsel testified that they initially had a very favorable impression of Dr. Williams, citing his “impressive” credentials, “evident” enthusiasm for the case, and “favorabl[e]” testimony for appellant at an initial suppression hearing. See J.A. at 766. Although Dr. Williams appears to have had no prior experience testifying in capital cases, see id. at 875-76, trial counsel spoke to him “on numerous occasions to see how his work was progressing,” id. at 766.11 As the sentencing hearing approached, however, trial counsel became aware that Dr. Williams was scared about testifying. See id. at 766-67, 973, 983, 1097. We see nothing in the record to indicate that trial counsel failed adequately to prepare Dr. Williams to testify at sentencing. To the extent that Dr. Williams was unprepared to testify, it was not because trial counsel was ineffective, but rather because Dr. Williams was. We therefore reject, as we have in the past, the effort by an appellant to recast a claim concerning the effectiveness of a court-appointed psychological expert as a claim of ineffective assistance of counsel. See, e.g., Wilson v. Greene, 155 F.3d 396, 400-03 (4th Cir.), cert. denied sub nom. Wilson v. Taylor, 119 S. Ct. 536 (1998).12
As
Appellant makes two further claims regarding trial counsel‘s use of Dr. Gwaltney, neither of them availing. First, appellant contends that Dr. Gwaltney was unprepared to testify because he had not completed a full mitigation review. See J.A. at 887-88. Appellant even asserts, without citation to the record, that Dr. Gwaltney asked trial counsel to seek a continuance in order to give him enough time to conduct such a review. According to trial counsel, however, far from indicating that he was unprepared to testify, Dr. Gwaltney was “chomping at the bit” to testify on appellant‘s behalf. Id. at 1026. Further, Dr. Gwaltney spent several days examining appellant, conducted a variety of psychological and physical tests, spoke to a number of people with knowledge of appellant‘s behavior, and reviewed all of the relevant records, and therefore cannot be said to have been unprepared to testify at the mitigation hearing. See J.A. at 890-91.
Second, appellant argues that trial counsel should nevertheless have also called Dr. Williams because he would have testified as to an additional mitigating circumstance -- namely, that appellant was emotionally and mentally disturbed at the time of the murders. See id. at 756. Trial counsel, however, was aware of the fact that Dr. Gwaltney disagreed with Dr. Williams’ assessment, see id. at 893, and indeed had said that he would “destroy” Dr. Williams’ testimony on this point, see id. at 767, 1097. Instead of undermining the prosecution‘s own expert‘s testimony as to the controlling influence of Jessica Wiseman by presenting controverted testimony as to appellant‘s emotional and mental state, trial counsel decided not to call Dr. Williams to testify on the latter point at all. See id. at 1020-21. We conclude that this decision, too, was reasonable as a matter of trial strategy. In sum, because we find no fault with trial counsel‘s preparation and presentation of expert psychological testimony at sentencing, we reject appellant‘s second ineffective assistance claim.
IV.
Appellant next claims that he was actually innocent of Kathy Wiseman‘s murder because he did not fire the second shot. Appellant appears to be making three distinct claims, if unwittingly. First, appellant contends that the district court should have excused his procedural default on various constitutional claims because of his “gateway” claim of actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995). Second, appellant makes a free-standing claim of actual innocence. See Herrera v. Collins, 506 U.S. 390 (1993). Third, appellant argues that, because he did not fire the second shot, he should not have been eligible for the death penalty because the aggravating circumstance of vileness would no longer exist. See Sawyer v. Whitley, 505 U.S. 333 (1992).
We begin by considering appellant‘s claims under Schlup and Herrera. Regardless of whether we apply the more lenient standard of Schlup or the stricter standard of Herrera, appellant‘s claims fail because appellant would still have been guilty of capital murder under Virginia law even if he had not fired the second shot. The medical
Appellant‘s claim under Sawyer is no more availing. Appellant contends that, provided that he did not fire the second shot, he should not have been eligible for the death penalty because he would no longer have qualified for the aggravating factor of vileness. For the aggravating factor of vileness to apply, the conduct of the defendant in committing the murder must be “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.”
V.
In connection with his substantive claims, appellant contends that the district court abused its discretion by refusing to grant his requests for the appointment of a forensic expert to develop his claim of actual innocence, for the deposition of Jessica Wiseman for the same purpose, and for the deposition of Dr. Williams to develop his claim of ineffective assistance of counsel.13
To be entitled to discovery in a habeas proceeding, the petitioner must make a showing of good cause. See R. Governing Section 2254 Cases 6(a). We conclude that the district court did not abuse its discretion by denying appellant‘s requests because appellant failed to make the requisite showing with regard to any of his requests. Neither a forensic expert nor Jessica Wiseman could resuscitate appellant‘s claim of actual innocence because, even if either were able to establish that appellant did not fire the second shot at Kathy Wiseman, appellant‘s claim would still fail as a matter of law. See supra Part IV. Further, the deposition of Dr. Williams would be similarly unavailing, because Dr. Williams’ testimony would have no bearing on the reasonableness, based on trial counsel‘s perceptions at the time, of trial counsel‘s strategic decision to call the prosecution‘s psychiatric expert rather than Dr. Williams. See supra Part III.B. “The opportunity for an evidentiary hearing in a federal habeas corpus proceeding is mandatory only where there is a factual dispute which, if
VI.
Finally, appellant contends that the district court improperly applied the more deferential standard of review in
Appellant also contends that the district court failed to evaluate whether the Virginia procedural default rule, as established in Slayton v. Perrigan, 215 Va. 27 (1974) and applied against some of appellant‘s claims, constituted an adequate and independent state ground for decision. This court has repeatedly recognized, however, that the Slayton rule does constitute an adequate and independent state ground. See, e.g., Wright, 151 F.3d at 159-60. Further, appellant does not even allege, much less demonstrate, that the Virginia state courts have applied the rule in Slayton inconsistently. We therefore conclude that the district court properly enforced the default of claims barred under Slayton, and reject appellant‘s challenge.
CONCLUSION
Following the dismissal of his federal habeas corpus petition, Thomas filed a motion in this court for a certificate of appealability. See
DISMISSED