Willie Lloyd Turner v. David A. Williams, Warden, Powhatan Correctional Center

PART, IN AFFIRMED IN REVERSED parts you return must be “[t]he letter PART, AND REMANDED. they can be returned to stock salable so that repair repackaging and resold to without implica- JA 307. The clear

another dealer.” pay of this statement is Ford would

tion

only parts, the value of which for salable until Ford

could not have been determined inspected

received and them. Second, agree with the district Lloyd TURNER, Willie Petitioner- nothing court that FMCC had to do with the Appellant, parts agreement, return terms of the rejection parts, or the valuation of the WILLIAMS, Warden, Quite parts agree A. parts. simply, the return David Powhatan Center, Respondent- Correctional ment was a matter between Ford and the Appellee. Dealership, sepa and Ford are FMCC entities; wholly-owned rate the former is a No. 93-4001. subsidiary per of the latter. We are not Appeals, United States Court of argument suaded the Dobbinses’ Fourth Circuit. party parts somehow became FMCC it, agreement return when secured cred Argued Dec. 1993. security parts, itor with a interest Sept. Decided arrangement. approved that sum,' we hold that the were Dobbinses $41,- to an additional not entitled credit parts

317.45 from FMCC under the return

agreement.

VI. Conclusion (1) concluding court erred in

The district 507(b) §

that FMCC was entitled to a su- (2)

perpriority expense administrative postpetition was entitled to in FMCC

terest. district court did not err

concluding parts agreement return any

did not entitle the Dobbinses to addition analysis,

al credit from FMCC. In the final bankruptcy

absent modifications remand, appears

court on to have a FMCC

general against unsecured claim the Dob- $113,724.38.11 in the amount of

binses We

remand to the district court with instructions bankruptcy pro

to remand to the court for

ceedings opinion. consistent with this issue, bankruptcy bankruptcy erroneously court concluded On that court

11. The that the Dob- $72,406.83, binses owed FMCC a total of concluded that the Dobbinses were entitled to an $72,406.93, $41,317.45. actually supra Stripping away should be see note additional credit of $41,317.45 general yields and that FMCC had a claim that erroneous of credit a total unsecured $113,724.38 ($72,- opinion departs outstanding unpaid amount. debt of Our from the $41,317.45). bankruptcy plus parts on the return issue. 406.93

876-

I July 12, 1978, morning On the Turner Jewelers, operated entered Smith owned and Smith, Franklin, City W. Jack Jr. Virginia. Turner went in the store with a shotgun wrapped sawed-off in a towel. word, saying displayed Without shotgun and motioned to Smith. Smith im- Reynolds, William Bradford ARGUED: mediately began stuffing money jewel- into a Sr., Morin, Dickstein, Shapiro Washington, & ry bag. filling bag, While he was Smith DC, III, Anderson, appellant. for Robert H. inconspicuously activated the store’s silent Gen., Gen., Atty. Atty. Asst. Office of the police department. Meanwhile, alarm to the Richmond, VA, appellee. for ON BRIEF: Turner directed the several customers and Walvick, Dickstein, Shapiro Walter J. & Mo- employees present up to line behind the rin, DC, Washington, appellant. Stephen for counter, kicking pro- store a customer in the VA, Rosenthal, Atty. D. Gen. Office of the cess. Richmond, VA, Gen., Atty. appellee.

Shortly alarm, triggered after Smith officer, Bain, HALL, LUTTIG, MICHAEL, police Alan D. Jr. Before arrived store and Judges. told Smith that his alarm was Circuit pointed shotgun

activated. Turner his Officer head Bain’s and ordered him to re- by published opinion. Judge Affirmed put move his revolver from its holster and opinion, MICHAEL wrote the in which grabbed on the floor. Turner then Officer Judge joined. Judge HALL K.K. LUTTIG floor, jabbed Bain’s revolver off the his shot- separate opinion, a concurring wrote officer, gun at the and directed him to the judgment. back of the store with the others. Turner, brandishing shotgun now his OPINION other, one hand and Bain’s revolver in the MICHAEL, Judge: Circuit fired the revolver into the back wall of the killing” store. He threatened to “start if Lloyd Virgi Petitioner Willie Turner is a police another up. officer showed At this prisoner nia was who convicted of murder point, any provocation, without point- Turner and first sentenced to death in 1979. In ed the revolver Smith and fired. The 1986, after state and federal collateral re bullet Smith in the struck head. Smith view, Supreme the United States Court va yelled, slumped over the counter and fell to cated his sentence and remanded for resen- floor, unconscious, gurgling, bleeding and 1987, tencing. Virginia jury again In sen from the head. The shot bleeding caused 1992, tenced him to death. after unsuc bruising surface, and on Smith’s brain but cessful direct and collateral review in the was not fatal. courts, Virginia petitioned Turner the United States District Court for the point, Eastern District At began talking this Officer Bain Virginia pursuant for relief to 28 U.S.C. Turner. He offered to take Turner out of § 2254. The district court denied that agree relief. the store if he would not to shoot Williams, (E.D. Turner v. 812 F.Supp. anyone Turner, else. While Bain talked to Va.1993). appeals, arguing escape two customers were able to from the (1) said, district court in dismissing erred his going store. Turner then “I’m to kill attacking application claims 314, of a nigger squealer,” referring statuto JA ry aggravating permits Smith, factor that imposition who was not African American. Tur- upon finding of death immediately that the defendant’s ner then reached over the coun- “outrageously wantonly vile, conduct was or ter with the revolver and fired two close- (2) inhuman,” horrible or range his several shots into the left side of Smith’s ineffective assistance of counsel body claims. For chest. The shots caused Smith’s follow, (One the reasons jump. we affirm. penetrated of the bullets his resulting the fact that Turner ultimately bias heart, pipes before and wind food passed American and his victim was white. bullet African spine; the other lodging in his 28, Murray, Turner v. out his-back. Medical lung and through his (1986). 1683, two Supreme L.Ed.2d 27 The that either testimony established fatal.) case, ultimately have been would Court remanded to the chest shots shots, Bain Southampton Officer circuit court of Immediately after these went weap- grab hearing.1 County sentencing Turner and to shove for new was able get down Turner to then forced ons. Bain resentencing represented at Turner was help. floor and called on the Snook, Lloyd by court-appointed lawyers, J. convict Turner was On December Woodward, III and L. Jr. The resen- Thomas Smith, December murdering and on ed for (a jury tencing hearing proceeding) occurred Northampton County recom jury in January 1987. The Common- on 7-9 to death. On sentenced be mended Friday, January finished its case on wealth Virginia Supreme Court appeal, direct Monday, January and the defense rested on sentence, and the the conviction affirmed any mitigating putting without evi- denied certio-rari. Supreme Court States United jury The was then instructed. Un- dence. Commonwealth, 221 Va. Tur ner scheme, Virginia’s penalty der (1980), sub nom. cert. denied 273 S.E.2d if it may fix the sentence at death finds 1011, 101 S.Ct. Virginia, 451 U.S. Turner v. (1) aggravating factors: of two either one (1981). Turner then probability that the defen- “that there is a corpus of habeas petition for a writ filed a commit criminal acts of violence dant would County, Southampton Vir court of the circuit continuing threat constitute a denied, petition was ginia. That (the factor), society” dangerousness” “future Virginia affirmed. (2) committing “that his conduct or again- denied Supreme Court United States outrageously wantonly ... was offense Virginia, petition. Turner his certiorari vile, inhuman in that it involved horrible or (1983). 462 U.S. torture, aggravated or bat- depravity of mind sought relief in the next federal (the factor). tery victim” “vileness” to the 27, 1983, petition a July he filed On courts. (Michie 1990).2 § Ann. 19.2-264.2 Va.Code corpus the United a of habeas for writ jury given instructions Turner’s was Eastern District for the District Court States battery” “aggravated defined denied, and Virginia. petition was components of the “depravity of mind” .vile- Bass, Turner v. our court .affirmed. ness factor. (4th Cir.1985). Turner then filed F.2d 342 n 12, 1987, January Turner’s resentenc- On petition in the United certiorari another fixing his sen- , ing jury returned a verdict Court, granted. which was Supreme States solely on the vileness death based Supreme vacat- tence at Court April On (but upheld was on direct His sentence his con- factor.3 not Turner’s death sentence ed Virginia, and viction) appeal Supreme to the Court trial court had refused because the his Supreme denied Court jurors possible the United States about question prospective (1979) acts of violence that sentencing commit original would criminal to the 1. We will refer continuing serious threat to constitute a proceedings as would proceeding and related collateral committing the society or that his conduct resentencing proceeding to the "Turner I" and charged was outra- stands offense for which he proceedings II." as collateral “Turner and related vile, wantonly geously horrible or inhuman or torture, depravity of mind in that it involved full, pro- Virginia’s penalty statute In victim; (2) battery aggravated vides: penalty of death be im- recommend posed. assessing penalty person con- In penal- the death an offense for which victed of jury 3.Although instructed the may imposed, of death shall the trial court ty be a sentence factor, juiy jury dangerousness” did shall imposed the court or the “future be unless not I, In Turner (1) established. past find that factor of the criminal after consideration defendant, however, factor both the vileness found find record of convictions dangerousness factor. and the future probability that the defendant is a that there petition. challenges application Turner v. Common certiorari raises several wealth, Second, 234 Va. 364 S.E.2d cert. says the vileness factor. he his law denied, 486 U.S. 100 yers rendered ineffective assistance in sever (1988). respects.4 responds al The Commonwealth that all of Turner’s claims are barred under petition Turner then filed a for writ of Lane, 288, 109 Teague v. corpus habeas in the circuit court of South- (1989) (plurality opinion), 103 L.Ed.2d 334 ampton County, alleging ineffective assis- they require because tous announce Sep- tance of counsel other claims. On proce new constitutional of criminal rules 11-13, 1989, tember the state court held an dure on collateral review. The Common evidentiary hearing on some of ineffective claims; challenges wealth next asserts that assistance all other claims were dis- Turner’s evidentiary hearing. application factor, missed without an On to the of the vileness 23, 1990, May the court issued a letter order well as one of his ineffective assistance adopted proposed the Commonwealth’s claims, procedurally are barred. We must findings rejected of fact and ineffec- arguments first address these to determine 5, 1990, July tive assistance claims. On the whether we can even reach the merits of incorporating court issued a formal order the Turner’s claims. dismissing

letter order and Turner’s habeas 30, 1991,

petition. April On II Virginia Court of dismissed Turner’s habeas Williams, (Va. appeal. Turner v. No. 901335 Lane, Teague plurality of the Su 1991). Apr. rejected That court his inef- preme adopted Court the second Justice fective assistance claims on the merits and retroactivity approach Harlan’s and held that proce- concluded that his other claims were a “new rule” of federal constitutional law will durally defaulted. not be or announced on collateral sought Turner next review in the collateral review unless the rule falls within one of two 10, 1991, federal courts. On December exceptions.5 generally narrow Teague, § petition filed 28 U.S.C. for a writ of 299-316, 109 S.Ct. at 1068-78 corpus in the United States District (plurality thereafter, opinion). Shortly Teag- Virginia. the Eastern District of retroactivity approach ue ’s adopted by The Commonwealth moved for dismissal un- majority apply of the Court and held to 12(b)(6) or, alternative, der Rule for capital Penry Lynaugh, cases. See v. 492 summary judgment under Rule 56 of the 2934, U.S. 109 S.Ct. 106 L.Ed.2d 256 Federal Rules of Civil Procedure. On Feb- (1989). principle predicated The new rule is ruary 1, 1993, granted the district court the comity on finality interests and in the summary Commonwealth’s judg- motion for — Taylor, criminal convictions. Gilmore v. petition. ment and dismissed his Turner v. —, —, 2112, 2116, U.S. 113 S.Ct. 124 Williams, (E.D.Va.1993). F.Supp. 812 1400 (1993). L.Ed.2d 306 The court found that most Turner’s claims procedurally rejected were barred and the principle Teague The announced in serves appeals others on the merits. Turner now to gradual to ensure that developments in the this court. jurists may law over which reasonable dis- agree appeal upset Turner’s claims on are not later used to can be the finali- First, grouped general categories. in two ty of state convictions valid when entered. " appeal ception Turner does not the pro- numerous other is for ‘watershed rules of criminal by claims dismissed the district court below. implicating cedure’ the fundamental fairness and accuracy proceeding.” of the criminal v. Saffle exception place 5. The first is new rules that for Parks, 484, 495, 1257, 1264, 494 U.S. 110 S.Ct. primary, private "certain kinds of individual con- (1990). ultimately 108 L.Ed.2d 415 Because we beyond power duct the of the criminal lawmak- conclude that Turner's claims are not barred ing authority proscribe.” Teague, to 489 U.S. at Teague, we need not discuss whether his claims (inter- (plurality opinion) 109 S.Ct. at 1075 exception. can fit within either narrow omitted). quotation nal marks The second ex- — Bohlen, 2116; Caspari U.S. purpose S.Ct. recognition that the This is but —,—, 953, 127 L.Ed.2d to ensure that corpus is of federal (1994). Subsequent cases have added federal comply with the convictions state (if guidance) the conviction words to the new at the time more in existence law Butler, See, final, e.g., a mecha- provide inquiry. not to 494 U.S. rule became (a continuing reexamination at 1217 case announces a nism for S.Ct. emerging upon later judgments susceptible final based the rule “was new rule when Parks, minds”); legal doctrine. among reasonable debate (a 488, 110 at 1260 case 494 U.S. at Smith, 227, 234, 110 S.Ct. Sawyer v. rule if “a state does not announce new (1990). 2822, 2827, 111 L.Ed.2d considering [petitioner’s] claim at the court Teague types of Generally, there are two became final would time his conviction type, petitioner seeks In the first eases. by existing precedent compelled felt announced after rely a decision [petitioner] that the rule seeks to conclude type, In second final. conviction became Constitution”); required Saw announced relies on a decision petitioner (a at 2827 yer, 497 U.S. at In final. conviction became before his development in the law over “gradual ] latter, necessary inquire whether “it is jurists may disagree” is a which reasonable sought a new relief would create granting the — rule); Graham, new in a decision is rule because (a rule case announces new extending prece thereby setting, novel jurists hearing petition “unless reasonable —, Black, Stringer v. dent.” the time his conviction er’s claim at be S.Ct.1130, —, 117 L.Ed.2d 367 compelled by final have felt came “would Lee, (1992); 971 F.2d also Nickerson see favor”).. in his existing precedent’ to rule (4th Cir.1992), cert. de n. 12 case, recent new rule the Court In its most —, nied, ap following three-pronged set forth the (1993). proach: principle is policy behind the new rule determining prisoner a state In whether desirable; principle leaves applying that but relief, a federal court entitled to habeas desired, is admitted- something “[i]t be by proceeding in apply Teague should when a case ly difficult to determine often First, court must ascer- steps. three Teague, 489 rule....” announces a new the defendant’s tain the date on which opin- (plurality U.S. at became final for and sentence conviction ion). plurality said: Teague, In Second, the court must Teague purposes. ... announces a new general, a case it then [s]urve[y] legal landscape as imposes ground it new or rule when breaks a state existed, whether and determine Fed obligation on the States a new claim at considering defendant’s] [the differently, a put T<5 eral Government. final time his conviction became rule if the result was announces a new case by existing precedent compelled have felt existing at the precedent not dictated rule seeks [he] to conclude that the fi conviction became time the defendant’s Finally, required by the Constitution. (citations omitted); Pen see also nal. Id. that the de- if the court determines even 314, 1077; at ny, 489 U.S. at S.Ct. rule, the benefit of a new seeks the fendant 484, 488, 110 Parks, S.Ct. v. 494 U.S. Saffle that rule falls whether court must decide (1990); 1260, 1257, Butler 108 L.Ed.2d 415 exceptions to narrow of the two within one 412, McKellar, 407, 494 U.S. S.Ct. v. nonretroactivity principle. (1990); 1212, 1216, Saw 108 L.Ed.2d — Bohlen, 114 S.Ct. U.S. 2827; 234, 110 at yer, 497 U.S. at — (internal omit- and citations quotation marks —, at Stringer, ted). cases it has by Teague and the Collins, —, Guided 1135; Graham through the Bohlen proceed we will 892, 897, spawned, —, 122 L.Ed.2d 260 —, (1993); Gilmore, 113 formula. 426, (plurality opin- conviction and sentence became at 1763-64 Turner’s ion). Moreover, when final in the United States Su- Georgia on direct review the preme petition Court, fashion, denied his for certiorari Supreme conclusory held II. must Turner We therefore determine supported finding that the evidence a of vile- considering whether a state court ness; provide any limiting the court did not compelled claims 1988 would have felt statutory construction to narrow the lan- (cid:127) conclude that the rules he seeks were re- guage. Id. at this, quired by the Constitution. To do (plurality opinion). 1766-67 Teague address the Commonwealth’s chal- plurality opinion began Justice Stewart’s turn, ultimately lenges in and we conclude by noting language that the of the vileness that Turner does not seek new rules. vague: nothing factor was There was “ vile, ‘outrageously wantonly words or horri- Teague Applicability A. The v. Lane to ble, alone, standing and inhuman’ ... Turner’s Claim that the Commonwealth any implie[d] inherent restraint” on the Applied the Vileness Factor in an Un- jury’s impose penalty. discretion to the death constitutional Manner (plurality Id. at 1764-65 opinion). plurality observed that Virginia’s facially Turner contends that Georgia vagueness courts did not cure that vague constitutionally vileness factor was not through adequate jury instructions or mean- applied Specifically, says in his case. he ingful 429, 432, appellate review. Id. at limiting “depravity definitions of of mind” 1765,1766-67 (plurality opinion). S.Ct. at “aggravated battery” given jury to his sentence, vacating Godfrey’s plurality inadequate they were because not suffi- did emphasized a central tenet of the Court’s ciently vague language cure the of the vile- Eighth jurisprudence: Amendment The state Further, says factor.6 Supreme riess “must channel the sentencer’s discretion Virginia, Court of the same objective clear and provide standards that construction, limiting did not cure that infir- specific guidance, and detailed and that make mity adequate with an review of his sentence. rationally process impos- reviewable the He thus seeks the benefit of a rule that a ing a sentence death.” Id. at vague aggravating supple- factor must be (footnotes (plurality opinion) S.Ct. at 1764-65 constitutionally mented with limit- sufficient omitted). quotation and internal marks appellate instructions review. Godfrey say read Eighth We Turner bases his claim on Justice Stew- proscribes imposition Amendment of a plurality opinion Godfrey art’s Georgia, death, avague sentence based on aggravating 64 L.Ed.2d 398 vague factor unless the factor has been nar- (1980), eight years decided before his convic- by constitutionally limiting rowed sufficient In Godfrey, tion became final. (in construction, sentencing either at Court vacated a death sentencé that was limiting form of jury instruction when aggravating virtually based on factor n involved) appellate just or on review. Not Virginia’s identical to vileness factor.7 God- do; any limiting frey’s jury construction will was instructed with the bare constitu- factor; language aggravating jury tionally required. one is id. at sufficient did not receive (plurality opinion) instructions. Id. 100 S.Ct. at 1767 resentencing Georgia permitted 6. The imposition court instructed the 7. The factor aggravated battery battery quali- "an is a beyond if it found was a reasonable doubt tatively quantitatively culpable is more than outrageously wantonly that the offense “was necessary accomplish the minimum to an act of vile, horrible or inhuman in that it involved tor- JA murder.” that turpitude 517-P. The court further instructed ture, mind, depravity aggravated battery or an "depravity degree of mind is a of moral 422, to tire victim.” Id. 446 U.S. at psychical and and [sic] debasement (plurality opinion) (quoting § 1762 Ga.Code 27- surpassing that inherent in the of ordi- definition 2534.1(b)(7) (1978)). (Vir- Compare supra note 2 nary legal premeditation." malice and JA 517- statute). ginia Q.

881 (1988), announced a new rule L.Ed.2d 372 petitioner’s death (“Thus, validity of the Cartwright an Okla- Georgia Teague. under ... involved on whether turns sentences ag- predicated on two death sentence applied a homa be said to can Supreme Court factors, permitted gravating one of which [vileness of the construction constitutional if imposition of a death sentence the defen- added); factor].”) v. Jones (emphasis heinous, “especially atro- murder was dant’s Cir.) (“[W]hen (4th 169, 174 F.2d Murray,976 factor). (the cious, or cruel” “heinousness” to cure a defect are used limiting instructions ' Cartwright’s Cartwright, 822 F.2d at 1478. statute, instructions facially vague in a limiting sentencing jury given a instruc- was requirements of specificity meet must beyond terms of the heinous- tion the bare denied, —, 113 Godfrey.”), cert. review, direct ness factor. Id. at 1488. On Turner, (1992); 27, L.Ed.2d 951 120 Appeals the Oklahoma Court Criminal af- “constitu (noting that the F.2d at 353 753 ” -applying limiting construction after firmed Georgia “the Godfrey was flaw of tional case, focusing Cartwright’s on to the facts of con give to a constitutional failure Court’s was com- the “manner” which murder criterion”) (empha struction to vileness Oklahoma, Cartwright v. 695 mitted. See added). that is limiting construction A sis 548, (Okla.Crim.App.1985). That P.2d itself,too in no vague leaves a defendant jury previously approved instruc- had petitioner God- position than better Cartwright’s given “ those tions similar to ‘standards on the basis of frey —sentenced jury. Cartwright, 822 F.2d at 1487-88. they adequately vague that would fail so ” sentencing decision-’ God channel Cartwright alleged petition, In his habeas (plu 428, at 1765 100 S.Ct. frey, 446 applied the hei- the Oklahoma courts Gregg Georgia, v. rality opinion) (quoting unconstitutionally factor in an nousness 2909, 46, 153, 46, 2935 n. n. 96 S.Ct. in his case. Id. vague and overbroad manner Stewart, (1976) (opinion of L.Ed.2d 859 claimed; Specifically, Cartwright at 1478. JJ.)).1 Stevens, Powell, “Vague terms do (1) language of the heinousness factor they are suddenly clear when become (2) courts vague, and the Oklahoma vague terms.” to other reference defined constitutionally apply sufficient failed F,2d 1477, 1489 Maynard, 822 Cartwright v. (through jury limiting instruc- construction 356, (10th Cir.1987) (en banc), aff'd, 486 U.S. sentence) to review of his tions or on direct (1988).8 100 L.Ed.2d 108 S.Ct. Circuit, vagueness. Id. The Tenth cure the (“the banc, agreed. sitting .See id. en Turner’s chal Godfrey thus dictates apply a courts failed to constitu- Oklahoma sufficiency of the lenge narrowing constitutional tionally adequate construction case”), 1491, as well limiting given to The Tenth Circuit’s instructions Godfrey. In appellate predicated review of his sentence. See id. as the decision was Court, deed, Stringer v. affirmed Supreme 1491. The Black, ap . noted the recently The Court supra, has held the Tenth Circuit. the Oklahoma to a new conclusion that Godfrey did not amount Tenth Circuit’s plication of limiting “adopted a construc- Teague. Stringer ad had not purposes of courts rule for infirmity” vague dressed, alia, Maynard cured the v. tion that inter whether Cartwright, 486 U.S. at factor. 100 heinousness Cartwright, 486 U.S. (9th 1, 3, Whitley, v. 884 F.2d Mississippi, Deutscher 498 U.S. 8. See Shell v. J., ("The Cir.1989) 313, 314, (1990) (Marshall, depravity ... of mind instruction 112 L.Ed.2d Godfrey requirements.... The de- limiting fails to meet concurring) ("Obviously, instruction case, although it con- pravity statutory instruction in this give factor content to a can be used to words, capable of channel- is no more vague provide any guidance tains more 'is itself too rejected in ing ... limiting than the instruction only discretion if the instruction's to the sentencer' sufficient,' Cartwright, [Maynard 486 U.S. constitutionally are own 'definitions (1988)] ... is, or the in- 'pro- instruction itself if the " grounds, Godfrey.”),vacated on other (quot- guidance struction to the sentencer.' vide[s] some 639, 654, Arizona, 114 L.Ed.2d 73 500 U.S. (1991). Walton (1990))); 3047, 3057, 111 L.Ed.2d 511 882 — (4th Cir.1994) (en

360, bane), Significantly, denied, at 1857. cert. —, 129, thought quite the Tenth Circuit “was L.Ed.2d— (1994); Murray, Jones v. 976 F.2d right holding Godfrey controls this (4th Cir.) (both parties agreed appli that the at 108 S.Ct. at case.” Id. 1858-59. Godfrey cation of by Teague was not barred Then, years four after it decided Cart- and therefore we did not have to reach the wright, Stringer the Court decided v. Black. issue; nevertheless, Teague we indicated that Stringer, petitioner In attempted the habeas challenges Virginia’s limiting to instructions rely Cartwright challenge to on to the consti- appellate and review were not barred tutionality String- of his death sentence. denied, Teague), —, cert. —er, ——, IIS. at S.Ct. 1133. The (1992). 120 L.Ed.2d 951 Mississippi Teague, of invoked arguing State Cartwright The similarities between petitioner rely could not on Cart- striking. the instant case are Like Cart- wright because that decision was announced wright, Turner was sentenced on the basis after his conviction became final. Id. The vague statutory aggravating factor. Like Court thus had to Cartwright decide whether Cartwright, given was a limit- rule, i.e., announced new whether Cart- ing limiting instruction and a construction wright’s challenge by Godfrey. was dictated appellate on review. Like Cart- applying Godfrey Id. The Court held: “In wright, argues Turner the Common- ], language 'in [Cartwright before us limiting wealth’s construction was constitu- ground.’ did not new [Cartwright ‘brea[k] ] i.e., tionally insufficient; it did not cure the was, therefore, purposes Teague, con- infirmity of aggravating factor and there- by Godfrey, trolled and it did not announce a by guide adequately jury’s failed dis- new rule.” Id. And, cretion. Cartwright, like Turner’s chal- Butler, (quoting 412,110 1135-36 lenge predicated Godfrey. on Because 1216). Stringer expressly Godfrey held that dictated Cartwright’s claim Cartwright and thus did Stringer Teague thus teaches that does not not seek the pur- benefit of a new rule for petitioner’s bar a habeas invocation of God- poses Teague, compelled we are to reach frey challenge the constitutional sufficien the same conclusion here. cy limiting appellate instructions or review vague if a state uses a aggravating factor. sum, we are satisfied that a state court Puckett, (5th Wiley v. 969 F.2d compelled 1988would have felt to conclude Cir.1992); Armontrout, Newlon v. cf. Godfrey Cartwright dictate the rule (8th Cir.1989), F.2d 1331-35 cert. de or result Turner seeks. (Although Cart- Newlon, nied sub nom. Delo v. 497 U.S. wright shortly came down after Turner’s con- (1990); final, viction became may use that Dixon, F.Supp. Smith v. 1383-86 decision Cartwright because did not an- (E.D.N.C.1991), (4th aff'd, 996 F.2d 667 Cir. nounce a new generally rule. See Stringer, 1993), grounds, rev’d on other 14 F.3d supra.)9 Supreme

9. Several Court decisions announced tion its heinousness factor. The after Turner’s seemingly conviction became final Court said: granted challenges take for to a state’s limit When a federal court is asked to review a predicated Godfrey construction are application state court’s of an individual statu- Shell, Cartwright. example, supra, For a non- tory aggravating particu- ... circumstance in a case, Court, per opinion, in a curiam case, lar it must" first determine whether the sentence, petitioner’s saying: reversed the "Al statutory language defining the circumstance is though limiting the trial court in this case used a vague provide any guidance itself too factor, instruction to define the [heinousness] so, sentencer. then the court must If federal constitutionally is not instruction sufficient.” attempt to determine whether the state courts (citing Godfrey 111 S.Ct. at 313 and, vague they terms further defined if Arizona, Cartwright). Similarly; so, Walton v. have done whether those are con- definitions case, supra, Godfrey/Cart i.e., a nonhabeas involved a stitutionally sufficient, they pro- whether wright challenge guidance to Arizona’s construc vide some to the sentencer.

883 constitutionally insufficient. But case was empha- nevertheless The Commonwealth principle ignore the fact that the we cannot became Turner’s conviction that before sizes Bass, (the court, of criminal 1988, rule[ ] in Turner v. of law “constitutional our final 316, Teague, 489 U.S. at 109 limiting procedure,” construction upheld a supra, to virtually identical (plurality opinion)) from which that was at 1078 factor vileness to Turner’s given limiting instruction is the extant rule Turner seeks to the benefit of his review applied on direct jury Godfrey and reaffirmed in propounded in — follows, Thus, a Vir- argument -, Bohlen, the at Cartwright. U.S. sentence. Cf. felt com- not have (in in 1988 would ginia court analysis, the at new rule 114 S.Ct. 955 its specific the unconstitutional pelled to declare general rule on the more Court focused in his case. used limiting construction Jeopardy sought the Double Clause Cf. —that — at-, 903. Graham, U.S. sentencing proceed- applies noncapital ato goes, a decision And, relatedly, argument the holding specific opposed to the —as require the creation favor would Turner’s petitioner, that his sentence sought by the repudiate as it would rule insofar a new Clause). Here, Jeopardy the Double violated at-, at 113 S.Ct. id. Bass. See Turner v. simply apply, rather than are asked we 897. extend, principle. Godfrey/Cartwright 112 Stringer, S.Ct. at U.S. Cf. argument, we note address this Before we question Although “it be a difficult can limiting defini- challenges "the Turner holding presents simply particular whether a fac- of the vileness components of two tions rule, setting or announces a for an old a new “depravity of tor, “aggravated battery” Graham, ——, one,” new however, Bass, up-we In Turner v. mind.” (Souter, J., dissenting), we think identical) limiting defi- (virtually held claim. former best characterizes battery”; we did “aggravated nition “depravity of sufficiency of the address point. Lynaugh makes the Penry v. Turner, 753 limiting definition. See mind” (Penry) claimed he Penry, petitioner Thus, accept the we to were F.2d at 353. violation “was sentenced death here, theory Teague Commonwealth’s was not Eighth Amendment because reviewing the be barred we would most give it could consider instructed battery defini- aggravated sufficiency of the imposing mitigating evidence to his effect tion. 307, Penry, 492 U.S. at its sentence.” review, the' Fifth collateral at 2941. On limiting definition of Turning then to Penry’s rejected claim because had Circuit II, the battery applied in Turner aggravated to hear all jury was allowed it, appears to Commonwealth, on the face (mental and abused limitations evidence that Turner seeks good argument childhood). Lynaugh, 832 F.2d Penry v. However, v. Bass. rule vis-a-vis new 302, (5th Cir.1987), aff'd, 492 simple. The Common- is not so answer (1989). 106 L.Ed.2d 109 S.Ct. specific most theory focuses on the wealth’s that, under concerned court nevertheless was hopes we holding Turner conclusion scheme, Penry’s jury was not able Texas in his used definition reach: Indeed, [Cartwright applied the teach- ] Walton, 110 S.Ct. at 3057-58 U.S. at added). Jeffers, (first Godfrey v. 3098-99, the Oklahoma emphasis In Lewis hold that ings of [heinous- Oklahoma’s courts had not construed (1990), petitioner like- the habeas "to cure the in.a manner ness factor] sufficient of its argued construction that Arizona’s factor wise satisfy jury and to discretion of unfettered the commands Godfrey and heinousness contravened Eighth Amendment." Cartwright. The Court said: Cartwright, (quoting S.Ct. at 3100 Id. at general principle that reiterated We have 1859) (emphasis construed aggravating must be circumstances omitted); added) (citations also Arave see principled permit to make the sentencer Creech,-U.S.-,-, who deserve distinction between those (1993). 1540-41, 123 L.Ed.2d not. penalty who do and those give to mitigating consider and effect to his in rendering hood its sentencing deci- generally evidence. See id. at 920-26. The light sion. ... upon [I]n of the assurances Fifth concluded that it Circuit could not rule based, which Jurek was we conclude that favor, Penry’s 'prior “because in Circuit Penry the relief “impos[e] seeks does not Fifth rejected decisions have claims similar to obligation” new on the State of Texas. Penry’s. prior panel holdings These bar a 318-19, Id. 492 U.S. at 109 S.Ct. at 2946-47 holding (empha- us.” Id. at 926 different (emphasis original) in (quoting Teague, 489 added) (citations omitted). Thus, grant- sis 301, U.S. at 109 (plurality opin- S.Ct. 1070 ing Penry sought the he relief would have ion)). The Jurek rule created a standard required the Fifth Circuit to overrule its simply applied which the Court to the facts precedents. Supreme granted The Court case, i.e., Penry’s to mitigating his evi- certiorari. Parks, 492, dence. See 494 U.S. Supreme The Court first addressed wheth- Despite at 1262. the fact that specific the Penry’s er claim Teague. was barred under holding Penry in announced was novel and generally Penry, 313-19, See 492 U.S. at 109 repudiated prior decisions, Fifth Circuit Pen- S.Ct. at 2943-47. think One would this was ry’s claim Teague-barred was not because it case; easy granting Penry an the relief he impose state; did not obligation a new on the sought seemingly required would have the already obligated the state apply the creation a new rule insofar as it would — Jurek Stringer, standard. Accord U.S. repudiated prior Fifth Circuit decisions. (Court 112 ’S.Ct. 1135-40 And, with Fifth those Circuit in cases the applying principle announced God- legal landscape, presumably a state court at ). frey the time his conviction became final would (and Penry thus demonstrates compelled Stringer not have felt grant Penry confirms) the critical sought. relief he distinction Supreme But the between the extension of Penry’s existing held that an rule claim on collateral Teague- was not review application and the barred: He did not seek a mere new rule an exist because (such (not simply sought application normative rule Godfrey/Cart- extension) wright) preexisting of a to a rule of new set of facts.10 Stringer, law a Cf. setting. 314-15, -, new factual id. at U.S. at 112 318- S.Ct. at 1135. Our 19, 2944-45, recognized 2946-47. court too has this distinction. (4th Wright, West v. Cir.1991), 931 F.2d 262 validity [T]he facial of the Texas death grounds, —, rev’d oh other penalty 112 upheld statute had been in [Jurek Texas, (1992), 120 v. L.Ed.2d 225 peti 428 49 (1976) sufficiency tioner raised a L.Ed.2d on the the evidence ] basis of assur- challenge special ances that under Jackson Virginia, v. issues would in- be terpreted broadly enough L.Ed.2d 560 enable sen- (1979). tencing juries to argued consider all of Commonwealth the rele- mitigating granting petitioner vant evidence a sought defendant the relief he might present. Penry argues have created a new those rule violation of West, Teague. assurances were partic- not fulfilled in Specifically, 931 F.2d at 265. because, ular case appropriate that, without in- Commonwealth although noted structions, fully could not Virginia consider Jackson v. peti came down before give effect to the final, evidence tioner’s conviction became decision of his mental retardation and abused child- his required favor would have our court to , 10. See Chambers v. United States 22 F.3d to a set of different facts. Because we (9th Cir.1994) ("We do not create simply applied general rule new [holding Herndon rule simply apply when we general 'a rule of this upon liberty limitation individual must West, application, -U.S.-,-, Wright v. appropriate have an safety relation to the of the J., (Kennedy, case, concurring), specific state] to the facts of this we con (citing Stringer, supra)): to a new set of facts.” holding clude that our does not create a 'new' cert, Paskett, (9th Cir.1993) (citation omitted)), Beam v. 3 F.3d rule.” denied sub nom. ("As Beam,-U.S.-, recently Court has noted [in Aravev. ], Stringer simply (1994). a rule is not 'new' because it is applications themselves saying that those permissive common law disregard Virginia’s [Jackson The rule of create a new rule. possession unexplained that one inference very example. By its rejected Virginia ] is the thief. Id. We goods is stolen general standard which provides terms it “Obviously, a federal challenge: Teague facts.... calls some examination apply a ‘new cannot be said beginning point is a rule of applies the Where rule’ whenever constitutional designed a rule for the general application, set of to a ‘new5 Virginia test Jackson myriad a specific purpose evaluating 266.11 Id. at in facts evidence.” contexts, infrequent it will be the factual reversed A divided Court that it yields a result so novel case con the merits after on decision our West rule, by one dictated forges a not new sup sufficient evidence cluding there was precedent. the under conviction petitioner’s port J., at-, (Kennedy, at 2499 112 S.Ct. Id. standard; did not the Court but Jackson judgment); also Gra- concurring in see gen Teague issue. directly address — -, ham, at 918 at 113 S.Ct. U.S. —, West, 112 erally Wright v. U.S. (Souter, J., dissenting) (noting “[o]ne (1992).12 How 2482, 225 L.Ed.2d 120 S.Ct. Teague emerged under general that has rule Justice ever, concurring opinion, in her in a existing precedent application of is that opinion O’Connor, plurality author of an- setting not amount to will new factual factu proffered “If a emphasized: Teague, in rule”).13 nouncing a new under consid the case al distinction between not precedent does pre-existing sum, eration norma- apply an when we extant precedent’s with which the change the force (leaving intact set of facts tive rule to a new is applies, distinction rule) underlying principle an- do not generally we the extant pre any meaningful, and deviation not criminal rule of a new constitutional nounce at-, 112 reasonable.” Id. is not Teague. cedent To be purposes of procedure for J., (O’Connor, concurring in the “by application at 2497 sure, implicated S.Ct. Teague is Kennedy elaborated: judgment). Justice not in a manner that was of an old rule Stringer, U.S. by precedent.” dictated which of question in is one If the rule Butler, 1135; 494 at 112 S.Ct. case-by-case examina- necessity requires a cf. But 414-15, at 110 S.Ct. 1217-18. at evidence, a U.S. then can tolerate tion of the that of a standard provides rule when a without applications specific number of 950, constitutional Arave, simply applied a well-established 953-54 v. 20 F.3d Accord Paradis closely analo- govern case which is principle to 1994) Virginia (9th (holding chal v. Jackson Cir. previously consid- gous have been to those which holding that by Teague; lenge also is not barred v. United case law.” Desist ered application either Gardner Teague bar did not 1030, 1041, 263, 244, States, 22 89 S.Ct. U.S. 394 1197, 349, Florida, 51 97 S.Ct. U.S. v. 430 (em- J., (Harlan, (1969) dissenting) 248 L.Ed.2d (due (1977) requirement process L.Ed.2d 393 States, added); Mackey United phases see also v. to be materials be advised of all that a defendant 1160, 1181, 667, 695, 28 91 sentencing), v. or Enmund against him used (Harlan, J., concurring (1971) L.Ed.2d 404 Florida, 73 U.S. dissenting part). Other part judgments in (1982) (Eighth rule Amendment L.Ed.2d 1140 similarly retroactivity cases pre-Teague imposing proportionate culpability for requiring Aiken, See, e.g., v. point. Yates highlighted this sentence)). 534, 537, U.S. holdings (1988) ("many are ‘new’ by joined opinion wrote 12. Justice Thomas well principles that were merely applications of wrote an Justice O'Connor two other Justices. conviction”); States United settled at the time by Justices opinion joined two other Justices. 537, 549, Johnson, White, concur- Kennedy wrote and Souter each (1982) ("[W]hen 73 L.Ed.2d a.decision joined were ring opinions, of which none prece- merely applied settled has of this situations, other Justices. no different factual new dents to later question as to whether arisen real has retrospectively. In such apply second Justice decision should point not lost on the 13. This cases, foregone Harlan, conclusion jurisprudence. it has been of our new rule the father cases, applies earlier case necessary rule of the later to determine emphasized "it is He in fact altered has decision really an- because the later particular has decision whether way.”). material that rule it has all whether rule at nounced a 'new' (“Federal necessity requires case-by-case examina- S.Ct. at 2830 corpus serves tion, generally yielded results to ensure that state comport convictions with application are not “new rules” because those law that was at established federal results do not ground “break[ ] new or im- petitioner’s time the conviction became fi- pose[ obligation a new nal.”).14 ] the States or the Federal Teague, Government.” U.S. at We return now to the instant ease. God- (plurality opinion); cf. frey that state supplement held courts must 315, 319, Penry, 492 facially vague aggravating factors with “con 2945, 2947 (emphasizing that the application sufficient,” Walton, stitutionally pre-existing rule issue not im- did instructions or state). pose a obligation Rather, new on the appellate Godfrey review. and Cartwright, presumably state courts are aware Virginia, like Jackson set forth general “a pre-existing and it rule foreseeable them standard calls for some examination of applied. the rule is to be — facts,” West, at-, U.S. J., (Kennedy, at 2499 concurring in judg Consequently, although comity inter ment) namely, examination of language ests would us defer have to a state court’s particular of the limiting instruction or the petitioner determination that a seeks the ex appellate Although review at issue. the state pansion rule, or extension of pre-existing a may courts below have on i.e., relied Turner v. rule, a new reflexive inap deference is Bass, supra, in concluding limiting propriate when we are asked to review a of “aggravated battery” construction given to state court’s application of that to rule Turner’s specific on review Otherwise, facts of a new case. we constitutionally sufficient, say Teague would have to that conclusion is altered the subject not to habeas, standard of a deferential on standard of review re which the Su preme Teague. view Court declined to hold in under To Wright language v. borrow -—- West, at-, Penry, West. Godfrey See from upheld U.S. statutory J., (O’Connor, 2497 concurring in judg- vfieness factor on the basis of “assurances” ment) (“In Teague, give we refused to state the sentencer’s discretion would be prisoners the retroactive benefit of new rules channelled constitutionally sufficient stan law, of but we did not create dards. “argues deferential those assur standard of regard review with to old ances were not particular fulfilled in his case rules.”); Sawyer, 497 because, U.S. at 110 appropriate without instructions [or cf. Judge Luttig, 14. We opinion think however, in his Judge Luttig, concur- suggests long that so ring judgment, in the significance overlooks the a jurist reasonable state court finds the instruc- reiterate, Wright of v. ToWest. there the Court tion/appellate review at issue be to constitution- Teague declined to hold that a defer- established (more ally accurately, sufficient jurist if the ential standard review of of state court decisions compelled would not have felt find the to instruc- West, at-, of federal S.Ct. at See law. -U.S. 112 insufficient), tion review constitutionally J., (Kennedy, concurring 2498 in the us, judgment. defer to the state court’s To this is judgment) ("Teague did not establish a deferen- West,-U.S. contrary to Miller and West.See at tial standard of review of state decisions court of -, (O'Connor, J., S.Ct. at concurring 2497 law.”). Rather, federal still the familiar standards ("[W]e judgment) in the have [not] held control: federal in the On habeas a state court's correct,” findings "presumed past factual are to presume be that federal courts must the cor- 2254(d), § U.S.C. findings ques- whereas its on legal rectness of a state court’s conclusions on questions tions of law and mixed fact law habeas, or that legal a state court's incorrect consideration, independent receive federal Miller determination has ever been allowed to stand Fenton, 104, 115, 445, 452, 474 U.S. because it always was reasonable. haveWe held (1985). 88 We believe that it is not courts, habeas, that federal even on have question of historical fact whether a state independent obligation is.”); say what the law given has constitutionally limiting sufficient at-, J., id. (Kennedy, S.Ct. at 2499 con- vague instruction aggravating for a factor or curring ("The judgment) comity interest provided whether a state court has constitution- not, however, [underlying Teague saying ] is ally appellate sufficient review of a sentence question Therefore, vague since is based a close state court sufficiency factor. ought appellate decision instruction or be deemed review is correct because we reviewed de position novo. judge.”). are in better no review, years four before con discretion was decided Turner’s sentencer’s appellate his final, objec became the Commonwealth con channelled clear viction could not be standards]_ light the assur are [I]n tends Turner’s Strickland claims tive based, [Godfrey we Teague-barred. Teag- ] was upon ances Commonwealth’s that, seeks does [Turner] that the relief challenge predicated conclude ue on its view obligation’ the State ‘imposte] new ju not “under the facts of case ‘reasonable 318-19, at Penry, 492 U.S. [Virginia].” See reading rists the case law that existed’ in Teague, (quoting at 2946-47 S.Ct. could concluded that defense coun ineffective_” 301, 109 opini (plurality Appellee’s not sel were Br. on)).15 above, Teague at 9. As noted does not man application á state date deference to court’s that, in chal- analysis, we hold In the final West, generally Wright fact. of law to application of lenging the Commonwealth’s Rather, supra. questions mixed of law and case, Turner does factor in its vileness subject fact to de novo review on rule,” are habeas. of a new Boh- not the benefit “seek[ ] Fenton, 104, 112, 106 Miller v. len> (1985). And, 450-51,. L.Ed.2d Teague Teague. Accordingly, purposes of whether counsel rendered ineffective assis reaching us the merits. does not bar question' of law and tance is mixed fact. Téague v. Lane to Applicability B. The Strickland, 698, 104 Coun- Assistance Teague Ineffective thus does mandate deference sel Claims application Virginia courts’ of Strickland of to the facts Turner’s case. We therefore lawyers at that his claims reject argument that the Commonwealth’s resentencing inef proceeding rendered reaching Teague bars us from the merits of v. Wash assistance under Strickland fective various ineffective assistance of 80 Turner’s ington, (1984). claims.16 Although Strickland counsel L.Ed.2d Despite alleged position holding and clear. that con Judge Luttig a consistent takes the that 15. "would, obviously, quite impose opinion large sistency, is in favor his devoted in Turner's measure case, obligation' of Vir- a ‘new on Commonwealth to a discussion of but one v. Col Graham omitted), (citation ginia,” post, but he lins, at 919-20 says ig supra, we a case which he have Penry “vacating Penry's says holding in Rather, not-4gnored We have Graham. nored. sentence, requiring in- and an additional spoken we the Court has not in because think mitigat- jury could consider his struction that voice, attempted we have to reconcile one clear such, 'impose a ing as did new evidence not end, that the Court's new rule cases. To our Texas,” obligation’ (citation of id. at 911 n. 4 State Stringer Penry, and was drawn to attention omitted). Judge According Luttig, Court no rule cases where the found two new obligation Penry impose not a new because n did Teague problem. is We think the instant case obligation”—that the state could not “such an Stringer Penry and than Graham and more like altogether the sentencer's consideration foreclose new rule cases. the Court’s other mitigating al- of a evidence—’"had defendant's ready imposed by prior Id. But in been law.” addressing the distinction between Pen- Before case, Penry, an in there is extant the instant as Graham, Judge ry pause we to comment on and obligation imposed When a on the states: state unexcep Stringer "an Luttig's assessment of factor, aggravating vague the state's limit- uses a consistently-ap application of the Court’s tional be appellate or review must con- instruction standard,” plied post, at This would 912-13. stitutionally supra note 9. The sufficient. Stringer surprise a to the three dissen come as Penry question instant presented and the case in Stringer thing, that one held ters. For Clemons obligation. is the has the state fulfilled its same: Mississippi, 494 U.S. indicates, Luttig's Penry a Judge As discussion (1990), a rule did not announce new L.Ed.2d finding a failed to court's that state fulfill federal case, despite an Zant v. the fact earlier that obligation necessarily impose not does extant 862, 890, Stephens, 462 U.S. obligation. a new 2749-50, (1983), expressly had L.Ed.2d decided in constitutional issue undecided the left Teague Supreme prog its 16. "Because and "weighing” in a state Clemons—whether signals, eny sent ... have somewhat inconsistent reweigh aggravating factors state court must difficulty had in coherent the circuit courts have aggrava against evidence if one ly following 8C W. Moore et those cases.” James 14.06[4], by is to be al., ting the sentencer held factors used App. § 14- Moore's Federal Practice ed.1994).. Stringer were baf (2d The dissenters thus Judge Luttig invalid. tells that 102.5 Yet us jurist at the time how a reasonable fled about new rule cases been Court’s existing high rule too a generality. level of As conviction Clemons's became final could have Justice Souter has observed: compelled felt to conclude that the result analysis crux of the Teague when is by precedent Clemons was prece- dictated when invoked ... is identification of the rule on (Stephens) expressly dent left the issue undecid- which depends. the claim for habeas relief To at-, Stringer, ed. See -U.S. Teague, survive specific be enough must ... (Souter, J., dissenting). to dictate the rule on may which the conviction significant Stringer majority's More is the re- be held to be [Pjassing unlawful.... on its sponse to the dissent's insistence requisite that result specificity, analytical calls for care. West,-U.S. by Clemons was at-, not dictated extant case law. (Souter, 112 S.Ct. at 2501 weighing process J., When the itself concurring has been judgment). Because it is skewed, only constitutional legal harmless-error our developments tradition that law analysis reweighing appellate at the trial or guided by be principles, extant virtually every guarantee level suffices to petitioner the defendant habeas general will contend that a received an principle, sentence. This e.g., individualized penalty the death not be "ar- principle emerges clear any single not bitrarily inflicted, capriciously” and from dictates the case, require, as the dissent would ... but Teague rule he seeks. meaningless would be if long authority setting our line petitioners the dual appli- could benefit from the forth precise constitutional criteria and individual- pre-existing cation high rules at too a level of sentencing. ized generality.' Sawyer, 497 U.S. at 110 S.Ct. at at-, Id.-U.S. (emphasis 112 S.Ct. at 1137 added). words, although In other Judge Luttig result in charges apply- essence us with case, by particular Clemons was not dictated a ing Godfrey high at too a generality. level of Clemons did not a announce new rule because reading Under Godfrey, jury instruction "emerged” the sentencing principle result from the aggravating on an factor can be reviewed on “precise must be (1) where, individualized.” habeas in two situations: as in We think this is a less restrictive Godfrey, standard than jury given is the bare terms of a employed (and Graham "vague” factor, endorsed aggravating (2) where, as in Judge Luttig) consequently disagree we Cartwright, with given limiting construction " Judge Luttig’s position Stringer was a gives run-of- guidance ‘no more did than ” Teague the-mill case. Godfrey,’ post, statute in (quoting String- Moving er, relationship on to the Penry between 1135), i.e., -U.S. where Graham, persuaded are- how providefs] the "instruction ever on the no whatso- limitation Judge Luttig has reconciled the discretion,” two cases. The jury's id. But how do distinguishable: cases Penry are ap- involved the we know whether a provides instruction plication pre-existing of a rule to a new set of guidance” "no more or "no limitation whatsoev- facts, whereas petitioner out, Graham involved a er”? To find we must review the factor or seeking i.e., law, the benefit aof brand new rule of limiting construction to its assess constitutional pre-existing an extension of Specifi- a sufficiency. rule. supra See note (discussing Walton cally, Penry the Peniy's (non-habeas to case) facts v. Arizona and Lewis v. Jeffers preexisting the (habeas rule case)). set forth in the Judge Luttig Jurek/Lock- Yet takes us to task ett/Eddings line of mitigating cases—relevant conducting review,” evi- for this "full post, merits at dence placed beyond must not be the effective way, Judge 904. Put Luttig another say to seems However, reach of the tig Judge sentencer. as Lut- that of the sufficiency review constitutional of a observes, placed evidence (i.e., Graham's was not limiting merits) construction a review on the beyond the post, sentencer's reach. See at 910- is not Teague-barred limiting if the construction not, ("Pemy’s juiy was, was but insufficient, Graham's is constitutionally which we would permitted to mitigating consider evidence as not know unless we undertook a review on the such....”). argued merits, Graham that under the Judge Luttig says we are barred Texas scheme a special defendant is entitled to doing. instructions he can mitigating whenever offer We intrigued by are no Judge less Luttig's arguable that evidence has some relevance be- conclusion that Turner's ineffective assistance yond "special Texas's issues.” See at id. 911 n. 4 Teague-barred. claims are not Judge Luttig ve- ("Vacating sentence, by Graham’s death hemently con- "Teague stresses that bars consider- trast, required holding would have a that Texas ation of a claim where the defendant could not could not channel the effect of prevail merits,” a 911, defendant’s even on the id. at and that mitigating all."). evidence at Graham thus possible "avoidance of a new rule is where sought application' more pre-exist- than the a prior precedent of peti- resolves the case in the rule; sought he favor,” an extension of the Ju- tioner's id. at 911. Yet he concludes that (and rek/Lockett/Eddings sought line of cases thus Teague does not bar consideration of Turner’s rule). of a benefit whole new claims, ineffective assistance see id. at n. course, observes, Judge Luttig Of see despite id. at prevail the fact that Turner does not on thought sought Graham merely he appli- the merits of these way, Put claims. another pre-existing best, cation of a rule. But at what challenges lawyers’ constitutional to his actually sought Graham application was the performance are Teague-barred not though even pre-existing (those principles underlying jurists the Jú- reasonable compelled have felt not ett/Eddings cases). short, rele/Lock line of In to lawyers conclude Turner's were constitu- problem Graham's pre- tionally (For he a invoked example, deficient. ju- reasonable 297-99, faulted) Teague, 489 U.S. (citing III denied, 1068-69), cert. at next contends Commonwealth (1991). We 113 L.Ed.2d 111 S.Ct. most of on defaulted procedurally Turner procedural Commonwealth’s address the will procedurally de- First, says he it claims. ultimately in turn arguments default application to challenges on his faulted procedurally not that Turner has conclude the Su- factor because idleness statutory on claims. these defaulted claims these Virginia found preme Court v. Coleman See defaulted. procedurally Application Challenges A. Thompson, 501 Factor Vileness a (1991) habeas (generally, when L.Ed.2d application challenges the claim on a federal defaulted petitioner has In respects. over- in several factor idleness independent and pursuant state (1) says arguments, he lapping rule, re- federal procedural adequate state (instructions) “aggravated bat- for barred); definitions Har- claim of the defaulted view were constitu- of mind” 1038,103 tery” “depravity Reed, ris (2) insufficient, Supreme Court of tionally Second, says pro- (1989). it L.Ed.2d sentence was of his review Virginia’s-direct ineffective one of his on cedurally defaulted (3) murder of the Smith inadequate, the facts fail- (challenging counsel’s claims assistance (4) factor, and support the vileness do not evidence described put ure generally does Virginia statement) Supreme Court it was because opening meaning- with capital defendants provide not Bas- courts. in the state raised never allega- various (4th review. These ful appellate 936-37 F.2d Thompson, 915 sette claims VII throughout were scattered not tions (ineffective claims Cir.1990) assistance petition.17 habeas state XIV of Turner’s de- procedurally are on state raised claim,” Teag- every post, 908. essentially beas petitioner does not seek the compelled to conclude ue controls when would not felt lists that it was petitioner assistance or when necessarily application ineffective of an old rule previously petitioner was in a manner apply an old rule a venire inform sentenced to seeks- for by a different extending “thereby by precedent, dictated crime.) same Stringer,-U.S. precedent.” Judge contrary to analysis, and final sure, We, "recognize[ ] the do to be 1135. "alter[ed] have not Luttig's suggestions, we attempting will arise in difficulties inevitable juris- 'new rule' Supreme Court’s circuit the particular decision has whether to determine we “disre- nor have prudence,” id. all or whether really a new rule announced authority,” id. at Supreme Court gardfed] ... constitu- simply applied a well-established has Luttig bottom, Judge disagree with At closely is govern a case which principle to tional directive,” "unambiguous id. an that there is previously have been analogous to those which 910, new rule cases. Supreme Court’s the in Penry, 492 prior case law.” the in considered were five-to- rule cases Court's new Most of the (internal quotation 314, 2944 S.Ct. at atU.S. 109 Indeed, shifting majorities. with four decisions States, omitted) Mackey (quoting v. United marks O’Connor, West, of the author Justice Wright v. in 1181, 1160, 667, 695, 28 91 U.S. 401 opinion an opinion, plurality issued Teague J., concurring (1971) (Harlan, 404 Justices) attempted L.Ed.2d she in which (joined two . West, rule, dissenting part), in turn part and judgments in see a new constitutes to define what 244, J., States, (O'Connor, --, quoting v. United 2497 Desist -U.S. (1969) 1030, 1041, Thomas’s 248 judgment); concurring Justice 22 L.Ed.2d Justices) - Graham, "dis- (also joined two J., opinion (Harlan, dissenting)); also see however, defi- J., O'Connor’s Justice agreefd], (Souter, with dissent- 918 Teague for a 'new rule' of what constitutes nition question whether ("it ing) be a difficult can S.Ct. at 112 at-n. purposes.” Id.-U.S. setting simply presents a new holding particular (plurality opinion). 2490 n. one”). rule, This a new or announces an old for today. a new standard have not created We however, Teague to be attributed difficulty, must pre- application of a simply We hold progeny, to us. its rule, by its na- existing a rule normative gener- application, contemplates prospective ture there was argued that heVII In claim dictum Hence our Teague-barred. ally is not depravity of find basis to factual insufficient p. supra challenge,” Godfrey Turner's "dictates XIV he battery. claim aggravated anor mind simply challenge 881; supra p. for cf. vague its on was factor argued vileness not- rule. And preexisting application of the withstanding Judge “aggravated face, limiting definitions horribles, Luttig's parade of were also “depravity of mind” battery” and on ha- reviewable "render will not decision our Supreme The of Virginia, on collateral argued imposition sentence review, held that these procedur- claims were for the murder of Smith would dispropor- be ally defaulted, stating: tionate to the crime when viewed in compari- Applying Slayton son rule in to other Parrigan, v. cases where the death sentence (1974) predicated 215 Va. solely S.E.2d 680 ... to on the vileness factor. Moreover, allegations VII, the extent VIII, numbered he attacked the vileness factor XIV, XV, (and petition and XVI his statute) for the Virginia writ death penalty on corpus of habeas advance being matters not its face as- unconstitutionally vague and and, appeal; serted on direct applying the overbroad. Cox, rule in Hawks 211 Va. As sufficiency for the defini- (1970), allegations [VII, S.E.2d 271 VIII, given tions jury, to his Turner’s brief on XIV, XV, and ... XVI] to the extent that appeal direct contained a subsection entitled: they advance matters asserted on direct “This adopt Court must stricter standards appeal, petition appeal for is denied for defining and applying aggra- the vileness procedural reasons of default. vating circumstance.” JA 553. In this sub- Williams, (Va. Turner No. 901335 Apr. section, argued: Turner 1991). Slayton generally says that claims This Court should make clear that an that could have been raised appeal, on direct aggravated battery which, must be one not, but were cannot be raised on state col- qualitatively quantitatively, is much Slayton, lateral review. 205 S.E.2d at 682. more vile than the necessary minimum Hawks has say read been that claims áccomplish murder, the act of and that raised and against petitioner decided on di- “depravity of mind” degree is a- of moral rect review cannot be raised on state habeas. turpitude psychical debasement Hawks, See S.E.2d Thus, at 274. surpasses that inherent the defini- far Virginia Court of dismissed these legal tion of premeditation. malice and they claims either because were raised and CHawks) decided on appeal direct or because JA (emphases 553-54 original). high- they were not raised on appeal (Slay- direct lighted portions represented above sug- his ton). gested modifications to the limiting defini- Slayton given tions procedural jury; is a valid without default those modifi- cations, rule. Murray, Smith v. he argued, 533- instructions were con- 2661, 2665-69, stitutionally Turner, deficient. L.Ed.2d 434 (1986). Hawks, (“Turner however, S.E.2d at is not a 488 n. 2 proce argues true that we rule; rather, dural default apply must is more in the stricter standards for determin- nature of a estoppel collateral rule. ‘vileness’ Hawks or else face risk having prevent cannot federal present review of fed standards declared unconstitu- eral constitutional properly reject claims tional. raised We argument.”). on appeal. direct Nunnemaker, See Ylst v. Finally, as for Turner’s Virginia’s attack on 797, 803-07, 2595-96, 115 system appellate generally, review (1991). Thus, we must ascertain listed as questions one of presented ten whether Turner raised on appeal direct the appeal: direct “3. Does this provide Court aforementioned challenges to application the adequate appellate review of death sen- of did, the vileness factor. If he he is not tences?” JA 544. Listed as an assignment procedurally raising barred from them here. of error was allegation the “[t]hat failure In his to Supreme brief the Virginia Court of of the courts to afford adequate Virginia , on appeal, direct argued appellate Turner that review of death sentences means the vile, i.e., murder of was not Smith that that death being sentences are imposed in the murder involved neither depravity Virginia of in an arbitrary capricious and man- mind nor an aggravated battery. ner, He also Eighth violation of the and Four-

vague, Virginia and Supreme Court's in his case. appellate generally review deficient both and Id.; The the United States see also JA 1397. Commonwealth to teenth Amendments proposed responded argument to this in its 545.18 JA Constitution.” findings of and of law. fact conclusions JA sum, challenges to various the In (¶26). (habeas) Then, in his Petition of factor were raised application the vileness Appeal Supreme Virgi- For the of to Court appeal on and therefore direct nia, argued: Turner review) (on must Virginia of collateral keep if that could Even counsel knew he Hawks, these claims under have dismissed (as promises not Mr. Snook could have Slayton. Accordingly, because Hawks not known), “prejudicial it still would be as [a] reviewing from the merits of not bar us does “promise matter of law” to even con- properly raised federal constitutional claims evidence, powerful of such densed recital reject we Common- appeal, on direct produce then it.” not Anderson v. argument proeedural- that Turner is wealth’s (1st Butler, Cir.1988). F.2d raising claims on ly these feder- barred (footnotes omitted). JA 1595-96 an ac- al habeas. footnote, companying Turner noted that “[ojther courts found counsel ineffective Challenge B. Assistance Ineffective part on deliver evi- based the failure to reject the Commonwealth’s We also opening promised dence statements.” JA argument proeedurally defaulted that arising claim on his ineffective assistance fairly pre- conclude Turner has We put mitigat failure on the from counsel’s to claim in sented this ineffective assistance ing opening state evidence described proceedings and state collateral therefore petition alleged Turner’s state habeas ment. raising is not barred from it on hold he “[cjounsel present mitigating failed to Having concluded that Tur- federal habeas. despite open ... defense counsel’s evidence barred, proeedurally claims not ner’s are jury that several wit statement now turn to the merits. testify on behalf.” Mr. Turner’s nesses held an The state habeas court JA 591. rv evidentiary hearing part to coun address above, As noted Turner raises numerous put on evidence. sel’s failure to challenges application of the vileness hearing, Turner submitted After factor, are several which interrelated. proposed findings of fact and conclu law, argued that wherein he sions says jury He instructions first promises by Mr. “broken made Snook factor. inadequately defined vileness jury were “inde opening in his statement” says particularly, More prejudicial.” He contin pendently JA 1315. “aggravated battery” and “de definitions for ued: constitutionally pravity of insuffi mind” were ag jury was instructed that “an promise cannot but conclude that to cient. “We battery battery qualita powerful gravated is a even a condensed recital such evidence, it, culpable is more produce tively quantitatively then not could necessary accomplish minimum We than the disregarded be as harmless. find 517-P. The also an act of murder.” JA prejudicial matter law.” [a] (1st Butler, “depravity of is a mind was instructed Anderson v. 858 F.2d added). Cir.1988) turpitude psy case, [sic] and and degree In that of moral (emphasis surpassing that inherent Appeals chical debasement Court of reversed the district ordinary legal definition of malice corpus court’s denial based 517-Q. fur- premeditation.” The court JA nearly identical to those here. facts course, provide adequate appellate the challenge appellate review of failed to 18. Turner's Of 547). propriety JA This of the death sentence.” could not have been review of his own sentence petition and appeal, appellate was in his state habeas review claim raised on direct because raised Appeal Supreme the (though argue yet place in his in his habeas Petition to take did had properly Virginia was appeal: of and therefore “If this Court fails to Court brief on direct verdict, jury's will exhausted. the the Court have reverse 892 premeditation. at (quoting §

ther defined malice and Tur 113 S.Ct. Idaho 19- Code (1987)). says incompre these 2515(g)(6) adopted ner that definitions are Idaho had lim they fail that to narrow construction, hensible and the iting whereby the utter disre persons eligible penal for the class of death gard factor was “meant to be of reflective Creech, U.S.—,—, ty. See Arave v. surrounding acts or circumstances the crime 1534, (1993) 1542, 123 L.Ed.2d 188 utmost, highest, which exhibit the the callous (the limiting language of a construction must life, i.e., disregard for human the cold-blood ‘genuinely determinate and “must be narrow ed, at-, pitiless slayer.” Id. at eligible persons class of for the death the Supreme 1539. The held that ” (quoting Stephens, penalty’ Zant U.S. require construction constitutional satisfied 862, 877, 103 2742, L.Ed.2d 235 at-, ments. Id. 113 S.Ct. at 1541. Sure (1983))). ly limiting applied construction in Tur as, objective ner’s and case as clear and upheld have on several occasions limit- We narrowing requirement virtually that identical satisfies as definitions were or well See, as, challenged e.g., upheld identical to those in here. construction Creech. See Jones, Walton, at (holding 976 F.2d 174—75 iden- also U.S. S.Ct. at limiting depravity of (upholding tical definitions limiting mind 3057-58 Arizona court’s aggravated battery specific “were “espe construction which said a murder provided adequate guidance jury” cially as if perpetrator cruel” “the inflicts men required by Godfrey). Recognizing that anguish physical tal or abuse vic before the proper degree aggra- death,” “the an definition of tim’s anguish including with mental vating susceptible factor of this nature is not uncertainty “a victim’s as to his ultimate Walton, precision,” of mathematical fate”) (internal omitted); quotation marks we believe the compare Mississippi, Shell v. 554 So.2d limiting sufficiently definitions here are clear (Miss.1989), curiam, per 905-06 rev’d And, objective. previously we (1990) 112 L.Ed.2d 1 observed, limiting adequately definitions (holding limiting unconstitutional a construc persons eligible narrow the class of to receive factor); Mississippi’s tion of heinousness juror penalty ordinary death because 1488, aff'd, Cartwright, 822 F.2d sensibility not find that all murders (1988) 1853, 100 depravity aggravated involve of mind or an (holding limiting .unconstitutional construc battery. clearly “The instructions direct the factor).19 tion of Oklahoma’s heinousness jury away requiring result i.e., something present, extra be either force Supreme Turner also claims that the greater necessary ‘than minimum to ac- Virginia’s appellate Court of review of his complish degree an act of murder’ ‘a was inadequate sentence because that court psychical surpassing debasement that inher- “allowed death sentence to stand even ordinary legal ent the definition of malice though culpable ... the crime was less than ” Jones, premeditation.’ 976 F.2d at penalty the conduct other cases or 174-75. reaffirm We therefore our many cases in which the defendant was holdings, amply which we think are sup- imprisonment.” Appellant’s sentenced life ported by Court’s recent deci- Br. “argues Virgi at 50. He further sion Creech. system provide capital nia does not defen Creech, review, meaningful appellate dants the death sentence even was based in part disregard appear utter cases in which the “[b]y arbitrary.” Idaho’s factor: results murder, However, Id. surrounding or circumstances at 57. its because have held commission, Virginia the defendant exhibited utter courts a constitu disregard tionally for human life.” sufficient construction for Turner, According Godfrey says disagree. agree We instead with district aggravated battery requires "evidence of serious court below that Turner misreads Justice Stew- physical Ap- abuse before Turner, victim death.” plurality opinion. F.Supp. art's pellant’s (Godfrey, (quoting Br. 48at 446 U.S. at n. 31. (plurality opinion)). 100 S.Ct. 1759 We

893 ease, has limiting applied it is construction been consis- Turner’s clear factor in the vileness tently”). that these Supreme cases from the Court’s carry no constitutional claims additional event, any Supreme In the Court of Walton, instance, supra, in the weight. For Virginia’s of review Turner’s sentence upheld the state court’s limit- Supreme Court adequate. The court found that the evidence disposed argu- of and then construction trigger vileness was sufficient to the factor. by similar Turner to those raised ments Turner, 364 S.E.2d at 488-89. More here: over, law, pursuant Virginia the court that the contends Walton nevertheless (1) determined that was not sentence cruel, heinous, has depraved or factor been “imposed passion, under the influence of and, arbitrary applied in an manner factor,” prejudice arbitrary other and distinguish case from applied, not his does (2) or disproportionate was not “excessive has death sentence not cases in which the cases, imposed penalty in consid similar challenges In Walton imposed. effect been ering the crime and the defendant.” Id. both review the Arizona proportionality of 17-110.1(0 § (quoting Ann. Va.Code and asks us Supreme Court as erroneous (Michie 1992)). pro conducted a do, we decline to for to overturn it. This portionality review based on the records of just challenged that the concluded capital felony all Virginia cases and found construed the Arizona factor has been “just that Turner’s murder was as brutal” as in that furnishes sufficient courts a manner murders other cases where the death so, being This guidance to the senteneer. imposed. sentence was Id. The court con is not constitutional- proportionality review juries jurisdiction gener in this cluded “that “lawfully may presume ly required, and we ally penalty approve of death offenses sentence was not death [Walton’s] comparable to the murder committed Tur freakishly’ imposed—and “wantonly and (citing v. ner.” Id. at 491 Barnes Common disproportion- thus sentence is wealth, 234 Va. S.E.2d meaning any recognized ate within (“vileness” (1987) found in murder of store Eighth Amendment.” during employee struggle shot three times 655-56, 110 S.Ct. at 3058-59 robber; killing held a in with Barnes “that McCleskey Kemp, (quoting by multiple gunshot may wounds con flicted 1756, 1774-75, 306, 308, ‘aggravated battery’ ... an where stitute (1987)); see also Lewis L.Ed.2d 262 Jef appreciable lapse time an between there is 764, 110

fers, 497 U.S. last, shot and the and where death first (1990) (“Our in Walton decision instantaneously does not result adopted if a State has thus makes clear that first”), denied, cert. constitutionally narrow construction of (1988)). short, In 98 L.Ed.2d circumstance, facially vague aggravating and Supreme Virginia “plainly under Court of if the has construction to State faith,” good proportionality took its review case, particular then the the facts of require Constitution does not us to “[t]he requirement’ constitutional ‘fundamental Walton, 497 look conclusion.” [its] behind ... ‘channeling the senteneer’s U.S. at 3058. penalty,’ imposing the death discretion has (citation omitted) general Virginia (quoting attack on been satisfied.” equally unper- system appellate review is 108 S.Ct. at Cartwright, 486 U.S. 1858)); Creech, suasive; system provide for Virginia does (“our fairly results are meaningful review its decisions do not authorize review determine consistent.20 of state court cases to whether go to demonstrate support argument Virginia Br. at 54. But these cases his consistently Virginia the vileness arbitrarily applied reserves the vileness facts, case, thereby gruesome provides def- litany for the most factor his factor which, imposes argument Virginia Virginia penalty lating ac- cites to death cases him, arbitrary capricious "signifi- penalty cording involved murders with cantly Appellant’s greater brutality” than his. manner. that, Turner’s final claim is even if rejected] where “[w]e Turner’s contention the vileness factor has been constitutionally- that his crime was not so justify vile as to defined, the facts of his case do not fit within imposition Turner, of death.” 753 F.2d at ie., factor, the vileness factor does not 353. apply challenge to him. A to a state court’s sum, application factor, hold that aggravating of an the vileness factor howev er, primarily raises question was constitutionally applied of state law: in Turner’s ease. “[F]ederal habeas review aof state court’s application a constitutionally ag narrowed V

gravating limited, most, circumstance is at determining whether the court’s finding state Turner contends that appointed his law- arbitrary was so capricious or as to consti yers, Snook, Lloyd J. III and Thomas L. independent tute an process Eighth due or Woodward, Jr., rendered ineffective assis- Amendment violation.” Jeffers, at challenges tance.21 He Snook’s assistance in 780, 110 at 3102. “A state- court’s (1) respects: six investigation his mitigat- finding aggravating of an circumstance in a (2) evidence, ing supervision his prepara- particular arbitrary ... is capricious case (3) tion of the expert, mental health his fail- if and noif reasonable senteneer could ure prosecution (4) to interview witnesses, have so concluded.” Id. at informing his 3103. venire The “standard of that a review the ‘ration al factfinder’ sentenced standard Turner established in death for the Jackson same Virginia.” (5) crime, Id. at his present at 3101— failure to any mitigat- 02; Creech, see at—, (6) also evidence, put failure on the 1544; Lewis, S.Ct. at Richmond v. evidence described the opening statement. —,—, 528, 536, 121 L.Ed.2d (1992). We evaluate ineffective assis We conclude that a rational senteneer tance claims under the standard set forth in could have found that the murder of Smith Strickland v. Washington, supra. Under involved depravity either of mind ag- or an Strickland, an ineffective claim assistance gravated battery. emphasizes has two components. First, defendant must his murder possibly cannot be considered an show performance that counsel’s was defi aggravated battery rapidly because he fired cient, i.e., representation “that counsel’s fell two chest, successive shots into Smith’s ei- objective below an standard of reasonable ther may one of which been have fatal. 687-88, ness.” Id. at 2064-65. However, Turner shot Smith the head Second, defendant must show he was before he fired the two shots into Smith’s prejudiced by performance. the deficient Id. And, chest. between the shot to the head 2064. aWhen defendant chest, the shots to the enough time challenges sentence, a death prejudice is es elapsed for Officer Bain to talk to Turner tablished when “there is a proba reasonable and for two escape customers to from the that, bility errors, absent [counsel’s] the sen store. As the of Virginia including court, an appellate tencer — emphasized on direct review Turner I: extent independently reweighs the evi being “After wounded [in the head] Tur- dence—would have concluded that the bal ner, slumped Smith helplessly behind the ance aggravating and mitigating circum counter. victims, Godfrey’s Unlike Smith did stances did not warrant Id. at instantaneously die death.” single from a dis- charge S.Ct. at Turner, of a “A firearm.” 2069. probability reasonable S.E.2d at Thus, 45. rational is a probability factfinder could sufficient to undermine confi found an aggravated battery here and dence in there- the outcome.” Id. at fore we reaffirm our I, conclusion Turner below, 2068. explained As we conclude served capacity Woodward in a claims, limited cussing we will refer to Snook Snook's challenges co-counsel. Turner’s are di- appropriate. unless otherwise large rected in against measure Snook. In dis- during federal developed the evidence under burden not carried his has Turner There, ironically, I. phase of Turner habeas Strickland.22 trial to show that Turner’s attempted Snook Preparation Pretrial A. for assistance ineffective counsel rendered mitigating evi- investigating inadequately Evidence Mitigating Investigation of claim, In to advance dence. order inadequately in- Snook argues that Turner develop additional necessarily had to Snook certain investigate, or failed vestigated, delegated task He mitigating evidence. relating evidence, namely evidence Deans, of Director the Executive to Marie (b) in a (a) his role and background his and Prisons on Jails Virginia the Coalition Mecklenburg escape from row alia, (an that, at- assisted organization inter allegations focus His Center. Correctional and handling capital appeals). trials torneys during the five- performance on Snook’s capital cases. many with had assisted Deans July Snook’s period between month January 1987 resen- and appointment the (on multi- by telephone interviewed Deans in Viewing period tencing proceeding. uncle, occasions) nei- and sister ple Turner’s relatively isolation, agree spent Snook we original sen- at the of testified ther whom developing miti- investigating and little time numerous tencing also interviewed trial. She However, ignore cannot gating evidence. Deans witnesses. potential character other slate when not a blank fact that he was high- reports for Snook that prepared then Quite the July 1986. in appointed he was investigation. of her lighted the results working on Tur- been contrary. had Snook part of the reports provided substance These appointed was when he since ner’s case judgment filed to alter amend for motion in Tur- appeal on direct represent Turner in 1984. I Turner federal him in the represented I. ner Snook includ- proceedings, federal habeas and state was Turner’s development Another States victory in the United ing Turner’s row in- escape of death in the involvement Murray, supra. Supreme Court Turner Mecklenburg Cen- Correctional mates hearing, resentencing of the By the time escape, he was ter; although did not Turner 1,000 approximately had devoted Snook execution planning and involved case, including approxi- Turner’s hours to clients on death had Snook five breakout. appoint- July mately hours after Mecklenburg at time. Within row at moreover, working began (Woodward, ment. escape, he went to Mecklen- after week ap- he was when case in may investigation. He an burg to conduct Turner co-counsel to serve as pointed guards and many ten as spoken with sentencing capital pro- trial and I murder Turner) (including with firsthand inmates ceeding.) “had escape, and Deans knowledge of the knowledgable about Tur- was thus Snook Snook more.” JA1291. awith bunch talked in 1986. reappointed when he ner’s ease Attorney Gen- at the spoke with officials also aware of the importantly, Snook was More Office, the the Governor’s and eral’s Office developed that had been mitigating evidence Board, Di- and the of the Corrections head sentencing proceed- capital I Turner Project of the Prison of the National rector At proceedings. related collateral Union, all of whom Liberties Civil American in- proceeding, for sentencing original inci- of investigation involved in testified, were stance, mitigation witnesses several when Furthermore, present he was mother, dent. and Turner’s psychiatrist including shortly police was interviewed was Turner significant More first aunt cousin. examples, Providing findings of fact. evidentiary proposed court held state habeas 22. The that the record does further maintains (the hearing”) on Turner’s “state habeas hearing findings. these We think many these support Although a state claims. assistance ineffective con- insignificant or involve are examples presumed either are findings historical fact court’s In facts. 2254(d), from historical drawn supra § see clusions event, 28 U.S.C. under correct independent review we have conducted an we should not defer argues that note record, counsel we are satisfied findings here because court's state assistance. effective rendered adopted the Commonwealth's verbatim the court after the incident. As a result of these ef- obtained from face-to-face interviews or forts, possession had in Snook Bassette, his to meetings. See 915 F.2d at 940-41 resentencing comprehensive (when file relating to challenging adequacy of counsel’s Mecklenburg escape, the 1984 and he was investigation, defendant must show what an potential mitigating aggrava- aware “adequate” investigation would have uncov- ting testimony. ered). sum, by appointment the time July generally Snook was familiar with As for Snook’s failure to contact potential mitigating Turner’s evidence. With people more familiar with Turner’s back mind, background we address Tur- ground, duty investigate counsel’s to is limit challenge adequacy ner’s to the of Snook’s to a investigation. Strickland, ed reasonable pretrial investigation. at'691, 466 U.S. 2066. “Particu larly evaluating when decisions not to investi Background a. evidence gate further, we regard must counsel’s challenges Turner first investiga- Snook’s eye choices with an for ‘reasonableness in all relating evidence early tion to his circumstances, applying heavy measure ” years, (i) formative alleging that Snook failed deference to judgments.’ counsel’s Bunch to conduct face-to-face interviews or meet Thompson, (4th v. 949 F.2d Cir. personally potential with defense witnesses 1991) Strickland, (quoting 466 U.S. at prior resentencing to the proceeding (they 2066), denied, cert. (ii) after met the proceeding underway), was —, (1992). 120 L.Ed.2d 922 failed to persons contact other might who above, As noted list of previ individuals knowledge have had about early Turner’s ously approached at one time or another for (iii) years, and formative failed to con- background information included Turner’s duct an adequate interview Turner. (his deceased), mother sister, father was his aunt, his his uncle and As his first failure to cousin. It Snook’s conduct (as was not opposed telephone) face-to-face to for Snook unreasonable to think inter (and Deans) personally or views meet with had defense identified and wit contacted resentencing nesses those proceeding, likely individuals possess most po Snook did not deem meetings necessary tentially such mitigating information. generally because he was familiar with the Moreover, Turner has not demonstrated of what substance these say. witnesses would prejudiced that he by was Snook’s failure instance, For he had reviewed number of contact other presents individuals. He affi potentially times the mitigating evidence that davits of several unapproached persons who had addition, Deans collected. In he had parents knew about Turner’s or the condi telephoned potential defense witnesses the childhood, tions of Turner’s but the sub month before the resentencing proceeding. stance of these affidavits is cumulative of Although meetings face-to-face with witness knew; which Snook already for example, may es be the approach, more desirable family poor parents was and his say cannot performance Snook’s was abused him. Murray, Jones 947 F.2d Burger unreasonable. See Kemp, 483 U.S. (4th Cir.1991), denied, cert. 776, 794, 107 3114, 3126, 97 L.Ed.2d 638 —, (1987) (“[Counsel] 118 L.Ed.2d 308 well could have made a (1992); Bunch, And, 949 F.2d at thorough 1365. more investigation than he did. the extent Nevertheless, generally Turner claims considering claims of addi inef tional counsel, fective sources investigated assistance of should have been ‘[w]e address (e.g., neighbors, teachers, prudent friends), not what is appropriate, but “he does ” what is constitutionally not advise us compelled.’ adequate an (quoting what investiga Cronic, United States v. tion would have 665 n. revealed or what these wit 38, 104 might said, n. nesses they have if had been (1984))). Moreover, Bassette, Turner fails explain testify.” called to 915 F.2d at 940- what additional evidence would been have 41. Mecklenburg incident at breakout alleged fail

Finally, as for Snook’s played in role [he] or of the constructive “comprehensive” conversation ure to hostages and other the lives of protecting note background, we his about with Turner was most tense.” inmates when situation he did not that, although testified Snook above, Br. at 9. As noted Snook Appellant’s Turner with having conversation recall surrounding, and of the facts was well aware going all the with childhood and “starting off in, Mecklenburg incident. Turner’s role Turner he and through present,” way fact, wrote a letter to then- in 1985 Snook amount,” discussing “bits a fair “talked clemency, requesting where- Robb to Governor history “from time life of Turner’s pieces” gratuitous actions taken he described Indeed, time of between time.” JA escape. Because during the and the in 1980 appointment original investiga- an previously had conducted Tur Snook visited resentencing proceeding, Snook incident, it not unreasonable tion of the him spoke with times and a number of ner unnecessary go “to back for him to find it They per month. average of once phone people again....” JA track down history and these while Turner’s discussed specifically 1246. filing in federal affidavit for his preparing Moreover, had Woodward in 1984. Men- Preparation and Supervision of length. Turner interviewed

previously Expert tal Health (to assigned had And, whom Snook Deans evidence) pretrial per- In next attack Snook’s gathering of the task (at formance, that Snook inade- person Mecklen- Turner contends Turner spoke with Fisher, by year prepared and Dr. per quately supervised and three times burg) about per expert. month He or twice mental health court-appointed about once a telephone that, alleged of the fre years. In view because of Snook’s period emphasizes over a contact, inattentiveness, failed to examine indirect client Dr. Fisher and quency of direct (Turner) resentencing pro- inadequately prior to hold Snook him we decline (Dr. shown Turner after ceeding. Nor has Turner Fisher examined Turner. interviewed underway.) resentencing proceeding advise was for he fails to prejudiced, how he was forced says, would have Dr. Fisher Consequently, information additional us what transcripts and “comprehensive” inter diagnosis a on trial uncovered to base his been medical records. prison and view. per sum, have although “could In Snook reasonableness evaluate the To the case more investigated Fisher, the facts of

haps we must handling of Dr. Snook’s diligence,” thoroughly with more and-recognize why Dr. Fisher was up back (4th Dixon, F.2d v. I had recom Williams in Turner retained. denied, —, Cir.), finding penalty cert. after mended the (1992), perhaps factors, dangerous 121 L.Ed.2d 445 future aggravating both for the thoroughly prepared vileness, more could have established. Snook were ness and has not however, resentencing proceeding, Woodward, think that did not below performance fell that Snook’s the vileness shown fit within murder of Smith In that, objective although of reasonableness. the re- thought standard They factor. jury, fact, opening statement vileness as sec sentencing jury might Snook’s add background, belies dangerous future which described found if it first ond factor expert wit Even Turner’s ness, contention. find vileness likely would Link) (Dr. hearing Thus, at the state dangerousness. ness future absence of opening statement jury that conceded that Snook’s strategy was to convince their familiarity Turner’s back with future dan longer represented demonstrated Turner no ground. this reason society. It was for ger to Fisher. of Dr. appointment sought the Snook Mecklenburg breakout The 1984 b. Fisher, psychologist, forensic a clinical Dr. prison condi- in the field expert was an disposable is Turner’s readily More and the tions, prisoners, the classification investigation was undertaken “[n]o claim that prison adaptability of inmates to life. known to Eggleston Snook defense counsel.’” States, sought. opinion (9th rather narrow from Dr. United 798 F.2d Cir. 1986) days Decoster, Fisher —that Turner’s violent were be- (quoting United States v. longer posed (D.C.Cir.1976) (en him that he hind no banc)); F.2d see danger future to others. Dr. (11th Fisher referred Mulligan 1436, 1442 Kemp, 771 F.2d syndrome,” to this as “burnout whereby Cir.1985), denied, cert. 480 U.S. diagnosed having one had an antisocial (1987). Here, 94 L.Ed.2d 529 personality early years disorder in his begins prosecutor, their conversations with the manifest less antisocial behavior his Snook and Woodward were aware of the (Turner forties). mid-thirties was in his anticipated substance of the witnesses’ testi mony. Turner has not identified additional Significantly, because Snook concluded information that been revealed that Turner’s mental health was not a viable had counsel interviewed the Commonwealth’s issue, Snook never intended to have Dr. Eggleston, 376; witnesses. See 798 F.2d at provide psychological Fisher a conventional Wainwright, Aldrich v. 777 F.2d 636-37 diagnosis question validity any (11th Cir.1985), denied, cert. psychological diagnoses. Snook him wanted (1986). 93 L.Ed.2d 297 because expert; he was a corrections it was irrelevant to Snook that Dr. Fisher was a B. Trial Performance psychologist. It thus was not remarkable that “Dr. Fisher did not know addition to the above attacks on Snook’s crime, pretrial details preparation, any- challenges [Turner’s] much less Turner next thing psychiatric performance about his Snook’s trial Ap- condition.” respects: three (1) pellant’s necessity prospective jurors Br. at 25. As for the he informed jury of a that a personal examination, previously explained Dr. had sentenced Fisher Turner to death for (2) Smith, in his affidavit hearing for the state murder of present he failed to that, (3) evidence, dangerousness mitigating because future was the he failed to resentencing put focus of the proceeding, on the “the evidence described existing prisoner opening jury. and medical statement to the files for Mr. Turner, ample, which were became that Informing Prospective Jurors important much more my evaluation. Prior Sentence carefully Once I reviewed these various ma- terials, meeting one direct with Mr. Turner resentencing jury Because the would was, all that necessary.” became JA 1913. be told that its sole function was to deter penalty mine the for a murder committed We conclude that handling Snook’s of Dr. years nine earlier and that it only could Fisher objective did not fall below an stan- imprisonment death, choose between life addition, dard of reasonableness. In we fail Snook and Woodward were concerned that to see preju- how Turner could have been jurors would deduce that previously Turner diced Dr. Fisher’s failure to him examine had been sentenced to death for prior to trial. murder When he examined Turner Smith; i.e., jurors figure would out after the resentencing proceeding was under- that one sentenced to appeal life would not way, Dr. Fisher nothing discovered new and and.risk a death sentence. previously developed confirmed his con- clusions. importantly, More the Commonwealth planned to introduce evidence of Turner’s

3. Failure to Interview Prosecution Wit- highly publicized involvement nesses escape, attempted and in a escape, from complains Turner that Snook did not death Mecklenburg. row at Snook reasoned that, interview the Commonwealth’s witnesses. from Mecklenburg, references to ‘“A claim of failure to interview a witness row or prisoners the names of the who es- may impressive abstract, sound caped, jurors but it surely would realize that Tur- cannot establish ineffective assistance when ner was sentenced to death for the murder of person’s fairly account is otherwise Smith. way I There’s no can see THE COURT: a dilem- faced thus and Woodward Snook If keep it from them. he’s death row to was best alternative .on They thought their ma. going come in and guards are to these the Common- preclude the court to ask going to testify people these other are Mecklenburg, death mentioning from wealth testify.... come in and for exam- escaped; who prisoners row or fictional- prison in some ple, “a fictionalized position The court’s was clear. 152-54. JA co-conspira- with fictionalized location ized prospective jurors to inform decided Snook Indeed, the advice this was JA 828. tors.” prior death sentence. about the whom experts with penalty of the death inef says decision amounted to pretrial Accordingly, in a consulted. Snook He under fective assistance Strickland. preclude court to urged the hearing, counsel claim, support his Arthur cites two cases making direct from the Commonwealth (4th Bordenkircher, F.2d 118 Cir. having been indirect references Commonwealth, 1983), 230 Va. and Barker v. row: on death (1985). Arthur, pre- In 337 S.E.2d ques- ask a case, Let me found assis MR. WOODWARD: ineffective Strickland elects not If the defendant consented tion now.... counsel drafted and tance where brought to the prior jury sentence] reading stating [the to have of a instruction jury, Com- then attention of convicted anoth defendant had been at- not that he precluded, murder, being be monwealth for the same but er Mecklenburg, but escape from tempted to conviction had his earlier retried because indicating that precluded grounds. Ar procedural would he be reversed on been Barker, row? escape from death attempted thur, F.2d at 118-19.. case, pro assistance was not ineffective No, No. sir. THE COURT: during voir juror in a retrial stated spective had was aware been

dire that she defendant charged previously of the crime convicted up, Tom. can’t cover You THE COURT: sentence. she was aware and that Barker, at 732. The issue before 337 S.E.2d simply ... I’m but Virginia MR. WOODWARD: was whether of way it present a to asking refusing ... not there is to exclude trial court erred come out? row doesn’t “that when so that death The court held for cause. Id. her previous of an accused’s knows

a venireman for which he is the same offense conviction asking simply I’m ... MR. WOODWARD: retried, qualify cannot being the venireman a inquiry is not there a matter of more as at 733. trial.” Id. juror in the new as a people are indicating that way ... without general for the Arthur stand Barker and you go through insti- on death row. Can’t dam- case is that a defendant’s proposition through going what escape without tutional knowledge that defendant by juror’s aged a for? people are there for the crime been convicted previously had No, I think don’t THE because COURT: disagree with that cannot charged. We go- The Commonwealth you can do it. abstract, reasoning and the proposition dangerous- future try to show the ing to juror in a apply a when those cases should try going to You’re individual. ness of the that, a learns sentencing proceeding capital has though this man" that even to show penalty for imposed death jury prior had and is capital murder convicted of been Burger, 483 U.S. charged. crime Cf. this, that, Mecklenburg being held in capital (comparing at 3122-23 know, to it seems I don’t and the other. trial). However, to a sentencing proceeding stronger tell your case me it makes mandate a cases read these we do not away it you try if to hold it than them was as a matter assistance finding ineffective from them. 688-89, Strickland, of law. See no “set of (noting that simply I’m Again, MR. WOODWARD: satis- conduct can for counsel’s rules detailed asking. factorily variety tantly, gauge take account of the of cir- so he could the reaction of each counsel”). juror prospective during cumstances faced defense voir dire. He then simply any prospective jurors These decisions do not address could strike for cause they is unreasonable in all circum- whether who indicated that would in- be more prospective impose penalty stances for counsel inform clined to the death because of juror case, prior In knowledge prior about a verdict. neither their of the sentence. Con- instance, Arthur, any (jurors, was there indication that it tra op- 715 F.2d at 119 impanel posed prospective jurors, would be difficult to with no were informed of conviction).23 case, knowledge prior of the prior verdict. this (well however, Snook aware of the Barker analysis, In the final Strickland teaches decision) reasonably thought likely it more performance inquiry “the must be jurors prior than not that learn of the whether counsel’s assistance was reasonable death sentence. considering all the circumstances.” Strick- then, land, question, is whether Snook acted 466 U.S. at 104 S.Ct. at 2064-65. unreasonably in Considering the face of his dilemma. all He the circumstances in this namely, requested anticipated that the court declare inadmissible direct or indi- case— any conjunction rect references to references the Commonwealth to death row prisoners jurors might with the risk that escaped independently death row or the who prior deduce Mecklenburg. The death court denied this re- sentence —we hold objective quest. counsel did not fall below an using He also considered voir dire to Rather, jurors standard of reasonableness. prospective strike for cause those with type strategic was the knowledge of the decision to Mecklenburg escape, Strickland,24 we must defer but decided that this under practical. would not be justifiable because, This conclusion was al- Mitigating Failure to Present Evi- though might impanel have been able to dence jury that escape, was unaware of the 1984 the Commonwealth nevertheless could have The Commonwealth finished its case Having mentioned death row. Friday, exhausted January chief on 1987. On Mon- alternatives, day, these Snook decided January to inform defense counsel rested with- prior putting venire sentence so he out evidence. Tur- appear and, forthcoming impor- could more ner claims this decision was both unreason- end, says prospective 23. To that that one sentenced Though to death for the same crime. Lambert, juror, during perhaps prudent theory, Samuel indicated categor- voir rule in such a knowledge help dire that his of the ical light death sen- rule was of no here in judgment. Perhaps attempting tence would affect his difficulties Lam- counsel would face in to first, fact, keep equivocated jury. this bert evidence from the but after Snook In coun- moved cause, only practical suggestion sel followed the resentencing to strike him for offered by experts they these pursued when moved for redaction the matter further. The court asked damaging of references from the Common- solely whether Lambert could base his decision evidence, wealth’s but the trial court was not resentencing proceeding on what he heard at the approach. amenable to this prior and not on the death sentence. Lambert court, having answered in the affirmative. The weight Because Turner accords of views Lambert, observed was satisfied with his re- penalty "experts,” perhaps it is worth not- sponse. agree We with the district court below Snook, ing here that who lectured and wrote nothing that there is that could record defense, penally about death was no novice him- resentencing finding have us doubt the court's of self. The state habeas court found that Snook Turner, 1435; impartiality. F.Supp. experts was capital "one of the in the field of Turner, (Supreme see also 364 S.E.2d at 486 cases,” penally litiga- had "handled more death II, Virginia, Court of on direct in Turner review any private attorney Virginia,” tion than other in discretion). finding no abuse of experienced and was "one of the most criminal Furthermore, lawyers Virginia.” in JA 1486. says 24. Turner that counsel were unreasonable the court found that Woodward "was undoubted- ignoring experts for the advice of from the ly lawyers one of the most effective criminal in Legal NAACP Defense Fund and the Virginia.” Southern Eastern practicing Id. He had been experts decades, Prisoners Defense Committee. nearly Those "predomi- criminal law for two opinion jury were nantly of the that a representing never should be criminal defendants from the previously informed that a backgrounds defendant had been same or similar as Turner.” Id. strategy they that Grizzard’s to As set knew was prejudicial under Strickland. able and during dump damaging evidence cross-exam- amade below, that counsel we conclude out (In fact, Grizzard ination and rebuttal. effec- present to tactical decision sound I, tively strategy same in Turner used the evidence, a decision which dangerousness found future where the guessing. second should avoid vileness.) Nevertheless, in addition to Snook possession in its had The Commonwealth surprised were at how much and Woodward aggravating evidence. of amount substantial chief; in from his case Grizzard withheld Grizzard, put on a rather Yet, prosecutor, error, they thought made a tactical presented the in chief. He first ease mild they thought Turner could not be a much of instead murder. But facts the Smith point. position at that Because Snook better testimony, tran- eyewitness live putting on sugges- was more evidence believed “there sentencing pro- I the Turner scripts from than bad character [Turner’s] tive of there jury. verbatim to ceeding were read character,” good suggestive of his JA was jury appeared bored thought the Snook harm than might it do more and that approach. this aggravating good open to the door for more Next, crimi- presented Turner’s Grizzard evidence, immediately they considered not But, fleshing out the history. nal instead putting any mitigating evidence. of his numerous aggravating details not to call Dr. Fisher. decided Snook first crimes, Virginia Depart- from the an official all, function, after was to rebut Dr. Fisher’s simply each of- of Corrections stated ment dangerousness the Commonwealth’s future date, fense, for location sentence and the evidence, pre had of which not been much each offense. And, in its case chief. sented Com relat- presented Finally, evidence Grizzard strategy was to wait principal monwealth’s at- and the. 1985 the 1984 breakout to testimony open to the door for Dr. Fisher’s Mecklenburg. With tempted escape from aggravating during significant evidence calling escape, to the 1984 instead regard in rebuttal. For cross-examination role testify about Turner’s eyewitnesses to Lee, stance, called Dr. would have Grizzard po- actions, called the Commonwealth testify “that clinical there psychologist, Mills) (Officer read lice officer probability that Mr. Turner was substantial (Mills had inter- incident. account offenses of a future would criminal commit of Snook presence viewed degree And of the violent nature. incident.) shortly after society danger.” JA probably put would short, the Com- despite the fact that Dimitris) (Dr. psychiatrist A of dam- amount had a substantial Thus, monwealth calling Dr. this. Fish have confirmed dangerous- relating future aging evidence than good, more harm could have done er ness, from its own account withheld its to call Dr. Fisher decision not and Snook’s evidence, eighty percent of that ease chief type tactical clearly was the decision damaging infor- including some of the most defer under Strickland. See which we must pre- example, Grizzard For mation. Thompson, 943 F.2d Fitzgerald v. Artis, the victim to call Lorenzo pared —, (4th denied, Cir.1991), cert. offense, wounding 1970 malicious (1992); Turner’s 117 L.Ed.2d inci- police officers involved with (had Bunch, counsel called 949 F.2d Tur- have described how Artis would dent. harmful evidence would psychiatrist, their (Artis) a cross-examination). he left him five times as ner shot In emerged on Britt) (Chief restaurant; police Link) a officer (Dr. deed, at the state expert reaction presented Turner’s would have good a deci hearing it “was conceded I after me because “[Y]ou-all when arrested: JA 1096. Fisher].” [Dr. not to use sion hope dies.” JA nigger? ... I he shot that call, it a Likewise, although closer a 695. re- present evidence not to tactical decision during gratuitous actions lating to Turner’s were well Woodward Snook and Here, escape. Mecklenburg there evidence, the 1984 aware of Commonwealth’s (11th Cir.1990) Dugger, was more concern with cross-examination 911 F.2d (“emphasizing example, although deprived a client’s than rebuttal. For wit- childhood very does not have a impact beneficial on a nesses could have testified that Turner jury, given northwest Florida the fact that hostages, they helped also would some jurors lives, many have had difficult but have aggravating have reaffirmed circum- conduct”). Indeed, not turned to criminal surrounding stances Turner’s role in the inci- during opening statement Snook had no- Indeed, potential one of Turner’s wit- dent. jurors appeared unreceptive ticed that some Fitts) (Officer could nesses have revealed on deprived up- when he referred to Turner’s that Turner cross-examination stuck knife bringing. “get him his back and told to down or die.” JA 2335. scope Of more concern permissible, was the put background of rebuttal were Snook to on mitigating The best evidence here awas or character evidence. did not Snook believe allegedly statement made Turner to other overwhelming this evidence was so it threatening inmates who were kill to some opening was worth the door for extensive hostages: going go ‘You’re to have to thru aggravating Accordingly, evidence. Snook you’re going If kill [sic] me first. to some- Monday, and Woodward returned to court on body, you will have kill me first.” JA 12, 1987, January ruling and asked for on Yet, by statement, withholding permissible scope of rebuttal evidence. precluded Snook Commonwealth The court declined to rule on the motion until (on cross-examination) recycling aggravating specific it heard the evidence at trial but escape: evidence about Turner’s role in the clearly few, indicated that there would be if helped plan escape and execute the any, scope restrictions on the of rebuttal. inmates, dangerous death row provided he See, (the warned, e.g., JA 424-25 court “I weapons, hostages, inmates with he took etc. think the right Commonwealth has a to come Although already had heard this bad, you back and show if show the evidence, aggravating only it had heard (the advised, good”); JA 426 “[b]ecause perspective once—and from Turner’s hearing this whole is based on ... what kind (from Officer Mills’ interview after the inci- Lloyd of man you’ve got is Willie Turner ... dent). wanting We cannot fault counsel for to take the bitter with the sweet and vice Moreover, thought to leave it at that. Snook (court versa”); saying id. the Commonwealth the Commonwealth’s reliance on Turner’s well, can “come and show [Turner] was a appear trustworthy. statement made him pretty guy”). bad im- Snook Woodward (We note that Turner’s account of the inci- that, mediately told the court on based dent, jury, which was read to the did include statements, they court’s would their rest case mitigating some facts: He wanted to back putting without evidence. plan, urged out of the the inmates not to sum, thought Snook and Woodward officer, give harm a correctional he tried to Turner had a chance for a life sentence if the Hawkins, Lt. knife to and he checked on Commonwealth failed to meet its burden of Barksdale, Nurse who had been disrobed and establishing danger that Turner was a future cell.) placed in his (and society. thought argued Snook Having decided not to call Dr. Fisher jury during closing argument) that the Com- witnesses, Mecklenburg Snook was left with carry monwealth did not that burden its background evidence, and character which he Moreover, case in chief. he was concerned thought to be rather As for the marginal. presentation evidence background particular, evidence in Snook provoke damaging cross-examination thought juries very receptive were not and rebuttal. As we have observed: deprived of a upbringing evidence without Trial frequently placed counsel is too in a “solid mental health issue.” JA 836-37. respect possible no-win situation with And, thought might Snook Woodward it mitigating sentencing evidence at Virginia offend some members of the rural phase capital of a put case. The failure to jury they emphasized if deprived evidence, presentation on such or the upbringing suggested might backfires, that one com- may equally evidence which then mit murder as a result of it. expose charges See Card v. counsel to in- collateral

903 Accordingly, opening dence. in his state- course for a feder- The best effectiveness. plausible ment, is to credit strate- jury produce court al habeas he told the that he would case. in the trial of a state gic judgments mitigating (testimony certain evidence evidence). (failure above, Bunch, put on discussed 1364 other As 949 F.2d at psychiat childhood and of traumatic putting evidence without on that evidence. rested the circum testimony). In view of all ric says present failure to Turner Snook’s surrounding to fore- Snook’s decision stances statement, opening evidence described case, has not over mitigation Turner go a itself, in and of was ineffective assistance. that the decision con presumption come disagree. We Strickland, strategy,” trial “sound stituted principally 689, Turner relies on First Circuit 104 S.Ct. at 2065. See 466 U.S. at (1st 795, 3126; decision, Butler, Anderson v. 858 F.2d 16 Burger, 483 U.S. Strickland, 700, 104 2071; Cir.1988). Anderson, 466 S.Ct. counsel, U.S. defense Bair, Bunch, 1364; Whitley v. 949 F.2d at case, opening at the close of the state’s (4th 1487, Cir.1986), cert. de F.2d 1496 802 jury psychiatrist told the that he would call a nied, 951, 1618, 94 107 S.Ct. 480 U.S. day psychologist. and a at 17. The next Id. (1987); v. Mazur McAleese L.Ed.2d 802 calling counsel rested without the doctors. (3d Cir.), kiewicz, 159, 1 167 cert. de F.3d court, then-judge Breyer’s Id. The over dis- —, 645, nied, 114 126 sent, emphasized damag- is that “little more Smith, (1993); Prejean v. 889 L.Ed.2d 603 important produce than to fail to evi- (5th denied, 1391, Cir.1989), cert. 1398 F.2d promised opening” had been in an dence that 1090, 1836, 108 L.Ed.2d 110 S.Ct. 494 U.S. believe, jurors because “the (1990); Kemp, 762 F.2d Mitchell v. 964 explanation, ... absence of some other (11th denied, Cir.1985), 483 U.S. cert. 890 viz., unable, unwilling, were [witnesses] (1987). 774 107 97 L.Ed.2d up billing.” to their Id. The court’s live did not fall below Having held that counsel suggests opinion that counsel renders inef- reasonableness, objective standard of fective assistance as a matter of law when preju explore whether Turner was need not opening promised evidence in an statement mitigating the failure to introduce diced trial, perhaps not delivered at unless counsel evidence.25 completely a defense. See id. at abandons Mitigating Evi- Failure to Put On 3. adopt that we such a 18-19. Turner asks Opening Described in the State- dence rule.26 ment However, case not cited a recent sentencing proceeding,

At the outset of the McGill, Turner, v. 11 F.3d 223 mitigating States planned to introduce evi- United Snook Ohio, (1982); apparently Lockett v. 438 U.S. concluded L.Ed.2d 25. The district court below 2964-65, prejudiced by not Snook's fail- 57 L.Ed.2d 973 that Turner was 98 S.Ct. evidence, Mecklenburg (1978) present peti- be- (plurality opinion). ure to that a It follows evidence was relevant to the issue cause this prejudiced may when counsel fails to tioner be (which dangerousness not did evidence, of future long mitigating present so “unrelated” Turner, find), F.Supp. at vileness. See not that, probability had the is a reasonable there suggestion petition- here is that a 1429-30. The evidence, mitigating sentencer considered the prejudiced when counsel withholds er cannot be ag- concluded that the balance of "would have mitigating a direct substan- evidence that lacks gravating mitigating did not circumstances factor(s) aggravating relationship tive Strickland, U.S. at death.” warrant Court, by the sentencer. The found however, may made clear that a sentencer has precluded considering, and therefore not be a Seventh Circuit also refers us to 26. on, any mitigating basing evi- a life sentence Reed, (7th decision, F.2d 871 Cir. v. Harris relationship there is no direct dence—even when 1990), But Harris did which cited Anderson. aggra- between that evidence and established challenge to counsel's failure a distinct involve factor(s). Dugger, vating See Hitchcock opening promised state put in an on evidence 398-99, 1821, 1824-25, Rather, generally attacked Carolina, defendant (1987); ment. Skipper v. South L.Ed.2d 347 evidence, 1670-71, put 1, 4-5, counsel's failure Oklahoma, thought greatly (1986); "would Eddings evidence the 869, 877-78, 104, 114-16, at 879. The fact case.” See id. aided his (1st Cir.1993), appeared strategy. the First Circuit to be better served different Anderson, J., narrowly (Breyer, 858 F.2d at 20 its Anderson decision. The dis- read (“Consider “Although produce senting) pressure a failure that such a court said: promised may places attorney under sonu> circum upon witness view a criminal defense see, (once witness) assistance, having stances be deemed ineffective mentioned to call Butler, (1st witness, e.g., Anderson v. 858 F.2d doing even so will hurt his if Cir.1988), client”). inefficacy addition, discourage the determination In we would necessarily particular set making opening ‘[N]o based. counsel from effective use of fact statements, can to define effective thereby precipitating of rules be established ineffective assistance_Id. (emphases add challenges quality open- assistance ed) Natanel, (quoting States v. 938 ing United statements. (1st denied, Cir.1991),

F.2d cert. case, In the instant Snook intended -, 117 L.Ed.2d 148 present at the outset the evidence de (1992)). opening scribed statement. He changed strategy his trial reasoning because he agree We with the thought prema the Commonwealth rested more recent First Circuit decision and with turely Breyer’s and because the court indicated that Judge dissenting opinion in Anderson, scope quite rebuttal would be broad. both of which adhere to Strick strategic We conclude that his express warning that: decision to land’s promised opening withhold evidence particular No set of detailed rules statement was not Nor unreasonable. was it satisfactorily can counsel’s conduct take him mitigating unreasonable for to mention variety account of the of circumstances This, opening evidence statement. range faced defense counsel decision; again, strategic was a had Snook legitimate regarding decisions how best to not described evidence in the represent Any a criminal defendant. such statement, opening suspect we that Turner set of with rules interfere the consti- challenged would have that omission. Final tutionally protected independence of coun- ly, allegation opening Turner’s state sel and restrict the wide latitude counsel ment was made without the of ade benefit making must tactical decisions. quate pretrial rejected, preparation must be Strickland, 688-89, 466 U.S. at for we have above that concluded Snook’s McAleese, 2065. See also 1 F.3d at 167-68 pretrial preparation adequate. (in dicta, the Third if Circuit noted that even opening implicit statement contained an VI evidence, promise produce certain coun “later sel’s decision not do so is not neces conclusion, Virginia In hold that ineffective”); Johnson, sarily Johnson v. statutory courts vileness factor in (3d 169, 177 Cir.), denied, F.2d n. 19 cert. constitutionally adequate manner and that 48 L.Ed.2d 823 counsel did not render ineffective assistance. (1976). view, assuming our counsel does therefore affirm We the district court’s deni- opening not know at the time of the state petition § al of Turner’s for habeas produce ment that promised he will not corpus. evidence, change strategy an informed AFFIRMED. “virtually the midst of trial is unchallengea ble,” Strickland, 690,104 S.Ct. at LUTTIG, Judge, concurring Circuit adopt position, 2066. Were we to judgment: effectively instructing we would be defense pursue strategy Treating express language counsel to continue to a trial of United they even after original opinions conclude that States mere exhortation, strategy was may binding interpre- mistaken or that the client rather than as opening this evidence was described in the state- See id. ment, factor, though a was not determinative.

905 law, majority fundamentally al- I. the tation Supreme Court’s circuit the ters for this A. jurisprudence governing federal rule” “new stead, majority In the review. its habeas Supreme repeatedly Court has stated requires federal a that doctrine substitutes sought by that petitioner the rule a habeas is every claim review on the merits courts to “new,” underly and thus consideration of the prior precedent, whether “predicated on” barred, jurists ing claim unless reasonable sought by petitioner is the relief the or not considering petitionér’s the claim at the time opin- precedent. As its own “ dictated his conviction became final “wouldhave felt reveals, thereby requires majority ion existing compelled by precedent’ to rule in even of claims are full merits review 1— Graham, U.S. 113 favor.” precedent exist- wholly merit under without added) (emphasis (quoting S.Ct. Saffle petitioner’s conviction be- ing at the time Parks, 484, 488, 1257, v. 494 110 U.S. S.Ct. majority thus final. The eviscerates came (1990)). 1260, 108 L.Ed.2d 415 With similar Teague v. Supreme Court’s decisions in. clarity, frequency and the Court has de 1060, Lane, 288, 109 103 489 U.S. S.Ct. clared, corollary, as a that it is in sufficient cases, (1989), succeeding 334 and L.Ed.2d “inform, prior decisions or even control endless, kind of intrusive requires govern, analysis petitioner’s or of’ a judgments by federal review of state Parks, 491, claim. 494 U.S. at express pur- it courts that was habeas Smith, Sawyer 1262. See also v. 497 U.S. Teague to arrest. pose of 227, 236, 2822, 2828, 111 110 S.Ct. L.Ed.2d (1990) (quoting approval); Parks with standard, majority adopting its new McKellar, 407, 415, v. Butler 494 U.S. Supreme recent ignores all but Court’s (1990) (de 1212, 1217, 108 L.Ed.2d 347 Collins, U.S.—, v. decision Graham “logical compass” cision within the of an ear (1993), 892, 122 L.Ed.2d 260 113 S.Ct. may lier decision nonetheless announce new authority directly contrary to the' stands as rule). consigning majority’s pronouncement, new a discussion of this Supreme a line of Court cases Without even estab- Graham standard, that, us, through only “added more lished the artifice of it informs has meaning words,” substituting terms of different for guidance, no to the “new rule” but standard, Supreme If not the terms of the Court inquiry. Ante at 879. this were majority adopts this circuit a stan- majority for enough, mischaracterizes eases, if a Penry compels dard that federal habeas review Supreme four other Court least prior 302, 109 2934, 106 petitioner’s “predicated claim is on” Lynaugh, Black, decisions, (1989), if decisions “dictate” the Stringer v. or (reject- —, 1130, “challenge.” Ante at 883 petitioner’s 117 L.Ed.2d 367 112 S.Ct. Teague argument (1992), be- Maynard Cartwright, Commonwealth’s (1988), specific conclu- cause it “focuses on the most 100 L.Ed.2d 372 hopes holding we reach: Mississippi 498 U.S. sion Shell v. (1990), in his case was definition used 112 L.Ed.2d and overlooks insufficient”). Thus, holding fifth, constitutionally Mississippi 494 Clemons v. (1990), rule within that Turner does not seek new L.Ed.2d meaning Teague “Turner’s because it and the new standard stand between Godfrey challenge predicated [v. Geor- majority’s star announces. Because of the authority, 64 L.Ed.2d disregard Supreme gia; 446 U.S. tling for (1980) ],” “Godfrey ... ante at consequences of the enormous and because 881,1 challenge,” id. at wrought by disregard, dictates Turner’s review habeas majority review of a join opinion. undertakes full merits the court’s I do here.”); ("The ("Because Stringer express- conclusion id. at the same 1. See also ante at 882 Cartwright] pred- Godfrey Cartwright's [in Tenth Circuit’s decision ly dictated claim held that ("Several Godfrey."); id. at 882-83 n. 9 Cartwright icated on and thus did not seek a new rule for seemingly ... compelled Court decisions purposes Teague, [later] to reach we are may un- final not be it concedes Turner is and sentence became claim as to which predicate corpus not entitled to relief. questionably for federal relief by precedent unless the decision was dictated ” standard, majority’s Rejecting the the Su added)); Texas, (emphasis .... v. Johnson —U.S.—,—, 2658, 2668, 113 S.Ct. 125 again that preme has stated time and (1993) (“In rejecting the conten L.Ed.2d 290 precedent must dictate the relief prior Penry ruling tion that dictated a in the petitioner in order to sought by the habeas Graham], we stated [in defendant’s favor See, Teague’s bar to federal review. avoid ” (‘We (emphasis added)); that .... id. also at 2944 e.g., Penry, at 109 S.Ct. 492 U.S. accept did not the view that the Lockett[ (“[W]e determine, as a threshold mat must Ohio, State 438 U.S. 98 S.Ct. 57 ter, granting [Penry] the whether relief (1978)] Eddings[ L.Ed.2d 973 Okla ” (emphasis a rule.’ seeks would create ‘new homa, 869, 71 455 U.S. 102 S.Ct. added) (quoting Teague, 489 U.S. at (1982)] cases, upon L.Ed.2d 1 line of — at—, 1070)); Graham, rested, holding Penry compelled U.S. a the S.Ct. at for Graham_” (emphasis in add (“We say cannot that reason 113 S.Ct. at 900 defendant ed)); (“We that, id. concluded even with the jurists considering petitioner’s claim in able decision, subsequent Penry benefit the would have felt that these cases ‘dictat jurists at reasonable the time of Graham’s petitioner’s ed’ vacatur death sentence.” sentencing [not] Vould have deemed them added) (quoting Teague, (emphasis ” compelled accept selves Graham’s claim.’ — 1070)); Graham, 301, 109 at U.S. at S.Ct. — added) Graham, (emphasis (quoting U.S. (“This at—, distinction 113 S.Ct. — Johnson, at—, 903)); U.S. Penry nor us to conclude that neither leads at—, (“Thus, at 2668 S.Ct. we held ‘dictates’ the predecessors of its ruling that a in Graham would have relief favor of required impermissible application of a meaning required seeks Graham within added)); — Teague.” (emphasis new rule under added)); by Teague.” (emphasis id. -, (“To id. at in rule (“We at—, say 113 S.Ct. at 903 cannot favor....”); Bohlen, petitioner’s Caspari v. jurists that all reasonable would have —U.S.—,—, 948, 953, compelled accept deemed themselves Gra (1994) (“The nonretroactivity added)); (emphasis in 1984.” ham’s claim principle prevents a federal from at—, Stringer, 1135 granting corpus pris to a state relief (Teague inquiry granting the asks “whether oner a based on rule announced after his [by sought petitioner] would create (em relief conviction and sentence became final.” added)).2 a new rule because the decision is phasis thereby applied setting, extending in a novel Indeed, dissenting even the in Justices (“[A] added)); precedent.” (emphasis id. continuing debate over the contours of the petitioner’s after a fully accept ease decided conviction “new rule” doctrine that granted challenges take to state's limit- Clause." Ante at 883. This distinction is a false predicated Godfrey Granting proposed construction are one. Bohlen's relief—declar- Cartwright."). ing his sentence unconstitutional —would have required holding Jeopardy the Double noncapital, Clause with the same force in Bohlen, holding 2. The which is Court’s capital, sentencing. as in The Court held that decision, Teague fully most recent consistent jurists at the time reasonable Bohlen's conviction Teague with the other cases in the of authori- line became final would not have believed Bohlen, such ty. majority states that "the Hence, holding by precedent. they dictated general sought— on the Court focused more rule compelled would not have been to rule in Jeopardy applies Boh- the Double Clause noncapital sentencing proceeding opposed len's favor and declare his sentence unconstitu- —as Bohlen, specific holding sought by petitioner, tional. See -U.S. Jeopardy his sentence violated the Double 955-56. petitioner. ruling sought relief This misun must dictate a precedent extant derstanding majori seems to stem Souter, for exam favor. Justice petitioner’s ty’s appreciate failure to nuance Graham, the dissent ple, who authored position taken the dissent Graham. as to this re not have been clearer could Graham, discussion at 909-11. In infra “new rule” doctrine when quirement of the “application the dissent does state that of an —West, U.S.—, Wright v. he wrote existing precedent setting in a new factual (1992), 120 L.Ed.2d 225 announcing will not amount to a new rule.” Teague, must be ‘old’ [a rule] survive “[t]o Graham, at—, finality of the enough predated to have the (Souter, J., However, dissenting). the dis conviction, specific enough to prisoner’s and sought only that sent’s view Graham the may the conviction dictate the rule on which Texas, application of Jurek v. 428 U.S. -, be Id. be held to unlawful.” (1976), not L.Ed.2d (Souter, J., concurring) (empha S.Ct. at 2501 based on the conclusion that resolution of the added); id. 112 S.Ct. at sis see also Graham, case, against whether or for (“[I]n J„ (Souter, light concurring) Jurek, by be resort to the rule in but rather became on the twin conclusions that Graham’s evi authority extant when his conviction materially dence was not different from Pen- final, apparent.” must be its unlawfulness Graham, at—, ry’s, see added)). ac (emphasis Justice Brennan also J., (Souter, dissenting), at 920 and that both govern knowledged that this is the standard types essentially received the evidence in As he stated ing federal habeas review. degree mitigation, same of consideration in Butler, a Teague “declared that the Court (“Graham’s claim that his see id. evidence entertaining prisoner’s a state federal court only partial could receive consideration is generally may not reach the petition habeas just application claim as much a of the legal the court of the claim unless merits demanding opportunity pre-existing rule the matter, determines, that a as threshold Penry’s that for full effect as was claim ruling on the would flow claim favorable given no under retardation could be effect [pre-existing] legal application from the issue.”). special the second Texas It was for Butler, (cid:127)standards.” that dissenters concluded these reasons the (Brennan, J., dissenting) at 1218-19 Penry. indistinguishable from Graham was 417-18, added); id. at (emphasis see also And “from conclusion that the rule [their] (“Put (Brennan, J., dissenting) at 1219 sought petitioner the to benefit from which ” Jurek, way, prisoner ‘new,’ can secure Penry another a state because Lock- was not ett, Eddings Penry dictated the relief only by showing relief that the state sought, necessarily “it the followed] rejection chal of the constitutional court’s [sought] petitioner [was] rule Graham clearly then- lenge was so invalid under —West, also new either.” Id. See legal that the decision prevailing standards J., —, (O’Connor, concur 112 S.Ct. at by any could not be defended reasonable (“If ring) proffered factual distinction be — n West, added)); jurist.” (emphasis pre tween the case under consideration (“[A] -, federal habeas change existing precedent does not the force court ‘must defer to the state court’s decision underlying princi precedent’s with which rejecting claim that decision is unless meaningful, is not ple applies, the distinction added) (emphasis patently unreasonable.’” any precedent is not rea deviation from Butler, (quoting 494 U.S. at sonable.”). words, dissenters, in other The (Brennan, J., dissenting))). only majority over the disagreed with the pre question generality with which majority appears to that those believe described. existing rule should be who have either dissented from Justices separately Court’s concurred concur- Teague opinion majority, In no Teague disagree with the Court’s ma- dissenting cases intimat- ring, or Justice —has ed, stated, might that he or she precedent much less jority must dictate or, by by majority judgments, whether reversal employed adopt the standard here, by wherein state court rea- today. affirmance finely soning critically examined and cal- consistently ap- adopted and The standard only adopted Not will the standard ibrated. not, contrary does plied the Court majority and the by the here not serve this belief, Teague inquiry majority’s conflate the purposes underlying the “new rule” other ante at decision on merits. See doctrine, affirmatively it will disserve these accept if n. 16. It is one does not 887-88 purposes ways hard to would be prior precedent standard the Court’s overstate. (as sought majori- the relief must dictate Applying majority’s locution of first not) ty Teague inquiry appears does prior precedent the chal whether “dictates merge disposition and thus to into circular lenge,” against petitioner, alone will even If the standard on the merits. one follows in an inestimable number of cases result Court, it could not announced be full which federal courts will undertake mer that, Teague inquiry, like a clearer while reasonable, many and in in its review of merits, requires disposition on the a canvass- -unassailable, judgments. stances state court authority applicable legal and a of many currently in that are not For cases light of the facts in of that consideration habeas, reviewable on federal the state inquiry quite authority, it is an different from judgment, as the one we review in court’s disposition Teague, on the merits. Under case, by existing will have been dictated question solely whether the the ultimate Any subject precedent. cases not to review judgment state court was reasonable under challenge” under the “dictates the locution authority existing at the time the defendant’s undoubtedly subject be to review under will {viz, prece- final whether conviction became majority’s alternative formulation that sought), the relief not whether dent dictated the “new rule” doctrine does not bar consid judgment in fact was correct as matter any “predicated prior of claim on” eration Thus, example, for one would not law. easelaw. This formulation will render re to decide on the merits whether a limit- claim, essentially every viewable on habeas constitutionally ing construction was suffi- every petitioner for almost necessari cient in order to know whether the claim that ly “predicates” prior his claims on easelaw. the instruction was unconstitutional was Penny, at 492 U.S. S.Ct. at 2965 Cf. (Scalia, Compare at n. ante 887-89 Tecw/Me-barred. (“In J., dissenting) system based only have to decide whether One decisis, precedent and stare it is the tradition short, holding. such a precedent dictated to find each decision ‘inherent’ in earlier majority appreciate fails to that to deter- cases_”). jurists mine what reasonable would have be- consequences majority’s These of the deci- precedent simply dictated is not to lieved magnitude underscore the of its error. sion determine the merits of the claim. very purpose Teague to halt The federal habeas review even of state court , B. interpretations ultimately of federal law that incorrect, prove provided they are reason- requirement prior precedent dic- The majority’s reasoning, able. Yet under the holding fash- tate a defendant was reviewing deciding federal courts will be reasonable, good- to “validate[ ] ioned so as judg- on the merits countless state court interpretations existing precedents faith but, only that are not reasonable ments courts,” Butler, made state U.S. here, indisputably correct. having the Court majority adopted by the thus determined that the mere threat of reversal The standard principles completely frustrate the of convictions obtained clear contradiction will finality, comity judicial tribu- adequately protect law would toward state established nals, 310,109 rights. requirement Teague, 489 S.Ct. at federal serves this see (“[sjtate understandably courts are purpose by ensuring that federal courts on 1075 federal habeas courts re- second-guess not state frustrated” when habeas do reasonable law) give rulings on federal effect to his their reasonable evidence.3 Gra- verse Isaac, n. Engle Teague argument ham’s unsuccessful (quoting before 1558, 1572 33, 33, 102 Supreme n. 71 L.Ed.2d 783 the Court sounded much like Tur- (1982)), us, respect prosecutorial argument for state ner’s before in that Graham authorities, Teague, 489 U.S. at simply seeking “appli- see claimed that he was (federal review should not re S.Ct. at 1075 cation” of law: quire “to marshal resources order states granted He asks Penry; what was prison trials and keep defendants whose redeemed, promise of Jurek be then-existing appeals conformed to constitu and that the Court reaffirm the authori- standards”), adoption of prompted tional Carolina, ty Woodson[ North —from Teague’s “new rule” doctrine the first 49 L.Ed.2d 944 place. (1976)] Eddings to Lockett and —on Penry rests. II. II.A., Reply Brief of Petitioner at Graham v. Teague Supreme If Court’s Collins, —, ap- cases had even hinted at the standard (1993). (“God- ante at 886 Cf plied by majority, its action would not be frey upheld statutory vileness factor on However, disconcerting. forge so in order to the basis of ‘assurances’ that the sentencer’s standard, majority Teague its must new discretion would be channelled constitu ignore Supreme precedent Court tionally ‘argues sufficient standards. Turner proves its error and misread or overlook those assurances were ful precedents least five other filled....’”). that foreclose or otherwise cast doubt on the cases, Consistent with its the Gra- adopts. standard it governing inquiry ham Court stated the as jurists whether reasonable would have be- A. compelled by prior pre- lieved themselves disturbingly, majority simply Most re- petitioner’s cedent to rule in favor: Graham, directly a fuses to confront case Thus, jurists hearing pe- unless reasonable majority that confirms that the has misstated titioner’s claim at the time his conviction misapplied and the Court’s “new rule” doc- compelled by became final “would have trine, seriously and that it has mis- reveals felt favor, existing precedent’’ to rule in his Penry, extensively upon read which it relies. doing from are barred so now. Graham, petitioner sought In vacatur — Graham, at—, grounds of his death sentence on the that at 898 U.S. added) Parks, “special procedure impos- (emphasis (quoting at Texas’ issues” for 494 U.S. 1260). Then, ing jury reciting penalty precluded the death his from after Jurek, giving mitigating “pre-existing effect to his evidence of normative rule” of Lockett, youth, deprived upbringing, redeeming Eddings, and and that it was unconstitu traits, completely character in contravention tional for a to foreclose Su- state Jurek, evidence, jury’s preme mitigating Court’s decisions in Lockett v. consideration of Ohio, jurists 57 L.Ed.2d Court concluded reasonable (1978), Oklahoma, Eddings considering claim at the time his Graham’s (1982). U.S. 71 L.Ed.2d 1 conviction became final would not have felt “ ’ Specifically, peti vacatur of Graham contended that Texas’ that these cases ‘dictated — Graham, scheme, sentencing required capital tioner’s death sentence.” U.S. at—, juries they impose penalty (quoting Teague, if 1070). “special questions answered three at “To the issues” U.S. affirmative, reasoned, permit jury contrary,” did not Court continuing questions 3. The second of these allowed for con- lence that would constitute threat mitigating question sideration of evidence. That society.” Crim.Proc.Ann. art. 37.- Tex.Code probability asked “whether there is a defendant would commit criminal acts of vio- 071(b) (Vernon 1981). least, they respect specific with these cases rea- differed readers to most evidence, upholding sonably type mitigating have been read as would consideration validity capital of Texas’ the constitutional claimed had been foreclosed of which each respect mitigat- sentencing with scheme case, juror Penry’s In consideration. ... [because] and otherwise evidence organic damage the evidence was of his brain place petitioner to before the permitted abuse; Graham’s, history of childhood mitigating evidence he could whatever youth, deprived up- was of his the evidence show, including age. redeeming bringing, and character traits. — ——, Graham, 113 S.Ct. at 900. (as determining Penry well as Ju- Thus, existing the caselaw when because rek, Lockett, Eddings) did not “dictate” became final would rea- Graham’s conviction relief, granting requested Graham’s sonably dictating have been understood (as Penry distinguished well as Lockett Court sought, but rather an not the relief Graham Eddings) as cases which “the consti- sentence, of his conviction and affirmance lay in tutional defect the fact relevant sought a new rule Court held Graham placed beyond the evidence was Teague- claim and therefore that his Graham, reach of the sentencer.” effective (“In sum, Compare barred. ante (emphasis 113 S.Ct. at 902 apply an extant normative rule to a when we added); Johnson, see also at- generally of facts ... we do not new set -, (expressly noting at 2668-69 rule of crimi- announce new constitutional Penry distinction of on the Graham’s (em- purposes Teague.” procedure nal ground Penry’s mitigating evidence had added)). phasis given sentencing, not been effect at his thus confirms that the Graham had; distinguishing whereas John- Graham’s given full effect both to its unam- Court has Penry’s ground). case from on same son’s biguous un- directive that claim is barred (and Jurek’s) evidence, the Unlike Graham’s holding less a defendant’s favor Penry’s explained, evidence—that he by precedent existing at the be dictated time organic damage suffered from brain and that final, the defendant’s conviction became and physically as a he had been abused child— corollary merely “predi- that a claim given only “aggravating” could be effect in governed by prior precedent cated on” or is Graham, the context of the Texas scheme. sweep not saved from the of the “new rule” — at-, 113 S.Ct. at 901. U.S. doctrine. distinction, i.e., the basis of this that On any question If that this there were is the not, was, Penry’s jury was but Graham’s Court, by Supreme the it is standard permitted mitigating to consider evidence as laid to rest the Graham Court’s discus- such, although concluded that the Court sion, distinction, Penry. and ultimate See Penry’s granting relief did not announce a — Johnson, at-, S.Ct. Jurek, granting rule from that in new Gra- (noting differences between Gra- 2668-69 requested ham’s relief would. See id. at Graham, Penry). Penry, like chal- ham and (“This -, at 902 distinction leads lenged application then-existing the of Texas’ Penry nor us to conclude neither penalty Penry, death statute. as did Gra- predecessors its ‘dictates’ the Graham relief ham, sought vacatur of his death sentence on meaning required by Teag- seeks within the grounds “special the that Texas’ issues” added)); Johnson, (emphasis see also ue.” jury penalty procedure precluded — at-, at 2668-69. giving mitigating from full effect to his evi- And, passage in a that reconfirms that the Jurek, Lockett, dence, in violation of level, Teague inquiry is on relief focus of the Eddings. general Penry’s and At a observed, identical; virtually petitioner, arguments sought the Court Graham’s were

9H reasonably may to rule on Penry could be read conviction be held to if even mitigating added)). evidence suggest that Graham’s (emphasis be un lawful” adequately considered under the was not Graham, short, proves Teague in that for procedures, that is not the former Texas purposes majority has different under- Rather, Teague. inquiry under relevant standing concept “applying” prior question whether rea- is the determinative precedent Supreme than does the Court. jurists reading the case law that sonable majority The holds that new rule is not concluded in 1984 could have existed prior precedent created if determinative sentencing was not constitution- Graham’s peti- the result in the case—whether in the say that all reason- ally infirm. We cannot against Supreme tioner’s favor or The him. jurists would have deemed themselves able Court could not have been clearer that avoid- compelled accept Graham’s claim possible only ance of a new rule is where the seeks, ruling Graham 1984.... prior precedent peti- resolves the case in the therefore, a “new rule” under would be If tioner’s favor. Court had Teague. concept majority understood the as does Graham, here, holding would have Graham added).4 (emphasis at 902-03 been different. majority and dissent Although the Graham disagreed over whether differences by Penry mitigating

type of evidence offered B. Graham, opportunity and the that each major- Graham also demonstrates how-the petitioner’s had to consider that evi- ity Penry why majority misreads dence, implicate a rule were sufficient to new mistakenly Penry supports believes its un- Graham, holding the dissent never derstanding of the rule” doctrine. Be- “new premise challenged the fundamental of Gra- majority grips cause the never comes to with Teague ham and the Court’s cases Graham, recognize it does not of a claim where the de- bars consideration holding Penry, petitioner Court’s prevailed could not even have on the fendant rule, did on not seek a new rested the conclu- existing time his under the law at the merits sion that Jurek dictated the resolution of final. discussion su- conviction became Penry’s favor, claim West, in his and not on the 907-08; pra see also U.S. at J., general fact -, (Souter, that Jurek some more sense concur- (rule governed That ring) “dictate[s] is new unless it resolution ease.5 Graham, Penry, approved sentencing procedure, its distinction of follow had Texas’ naturally Teague's instruction that new ob- which restricted a defendant's use of ligations imposed special the states via to the context of the issue of are not to be evidence dangerousness, holding Peniy’s When conviction future such would un- federal habeas review. final, questionably a rule. the law was clear that "the State have announced new became give mitigating jury allow the effect to must making sentencing evidence in the decision.” majority significance to the fact 5. The ascribes Parks, (citing 494 U.S. at 110 S.Ct. at 1262 holding Penry "repudiated in that Court's noted, Eddings). Penry and As ma- Lockett decisions,” prior Fifth Circuit ante at 884: jority jury give concluded that the could not case; easy grant- One would think this was an mitigating effect to his evidence within the stric- ing Penry sought seemingly relief he would Hence, “special vacating tures of the issues.” required sentence, the creation of a new rule inso- Penry’s requiring death and an addi- prior repudiated far as it would have Fifth tional instruction that the could consider his And, such, decisions. with those Fifth Cir- Circuit mitigating "impose evidence as did not a landscape, legal presumably cuit cases in the a obligation,” Teague, new 489 U.S. at [Penry's] court at the time conviction state of Such an S.Ct. at on the State Texas. compelled final would not have felt obligation i.e., although became Texas could chan- — sought. grant Penry mitigating the relief he effect of a evi- nel the dence, defendant’s of that Id. it could not foreclose consideration any way dispositive altogether already imposed by This fact of course is not in effect been —had sentence, Vacating Teague inquiry. court deci- prior of the Prior circuit law. Graham’s contrast, "objectively required holding infrequently sions not sonable,” are unrea- would have a Supreme as the Court found with Texas could not channel the effect of a defen- String- respect decisions in at all. Because Jurek to two Fifth Circuit dant’s evidence III. reasoning Penry in is evi- was the Court’s else, dent, nothing from the fact that if from compounds majority the error caused question specifically framed the the Court unexplained its refusal to consider Gra- granting [Penry] the “whether before it as ham, resulting misreading Penry, and its of rule,’” would create a ‘new relief he seeks by misconstruing Stringer Cartwright, Penry, at cases that have addressed God- Court’s (citation omitted), question and resolved this Teague’s, in frey challenges the context of terms, at in id. at the same “new rule” doctrine. (“[I]n upon light the assurances of based, that the was we conclude which Jurek A. ‘imposte] a Penry seeks does not new

relief (emphasis of Texas.” obligation’'on the State betrays of In a statement the extent added) (citation omitted)). departure Supreme prece- its Court Therefore, majority’s contrary to be- that, dent, says majority “Stringer ... decision, lief, Penry not a see was- “novel” Teague does not bar a teaches that 884; it .. .(cid:127) ] nor does ante Godfrey “demonstrate! to chal- petitioner’s invocation of the critical distinction between the extension lenge sufficiency of the constitutional existing review and rule collateral of appellate instructions or if a state review existing application of an norma- the mere vague aggravating uses a factor.” Ante at facts,” rule ... to a new set of id. at 884 tive (the added); (emphasis see also id. at 881 omitted). (footnote Rather, the Court as Stringer held in “that Court itself, 314-19, Penry in see 492 U.S. at said Godfrey application of does not amount to a 2944-47, it in and as reaffirmed ”). purposes Teague String- new rule for Johnson, Penry was a narrow decision entail- er, course, sort; nothing teaches Jurek; ing straightforward application rather, Stringer applica- holds Lockett, Eddings provide Penry so as Godfrey particu- in tion of the context of the entitled under with the relief which was Cartwright lar facts of Clemons did those cases: require String- announcement of new rules. er, short, unexceptional application in was an Penry explicit was [in ] The Court most consistently-applied standard Court’s rejecting Penry dissent’s concern granting petitioner request- a habeas rule, seeking a new in contravention of Godfrey ed relief will not “extend” so toas Indeed, Teague v. Lane. charac- ie., relief, when that announce new rule holding Penry straight- its terized holding defendant, is “dictat- application rulings of our forward earlier favor of relief, by Godfrey. brought ed” This is into Jurek, Lockett, making Eddings, Penry, by inas the Court’s own statement of together clear that these cases can stand it, namely, grant- the issue before “whether Penry. with [by petitioner] ing sought the relief Penry We confirmed this limited view create a new rule because the decision scope in Graham v. and its Collins. setting, thereby a novel extend- Johnson, precedent.” Stringer, (citations omitted). ma- at 2667-68 Had the -, Graham, jority ignored here not it would Supreme Penry, have understood as does the 1. Court, as a case where a new rule was not sought question Stringer in implicated because the relief was dic- The before the Court by precedent, Cartwright or prior specifically tated Jurek. was whether either Clemons er, at-, Supreme A with the Court’s see-U.S. 1140. sions conflicted jurist” simply ignore holdings regarding on the consid- "reasonable would such restrictions evidence, Penry Ly- objectively v. unreasonable decisions. In this re- eration of (5th Cir.1987), spect, jurist sitting naugh, a reasonable freer than 832 F.2d it is that, judges, Penry proves. Although panel, the nonetheless concluded as a it was as itself panel prior that deci- bound those decisions. Fifth Circuit believed its Teag- phrase purposes Supreme rule for tion the one that the a new Court announced previously approved constitutionally held that neither did. had The Court as ue.6 limiting analogous, vague aggravating fac- Cartwright in facts and circumstances i.e., tor, pitiless “the conscienceless or crime virtually indistinguishable those in were unnecessarily which is torturous to the vic- Cartwright, the found Godfrey. Court Cartwright Maynard, tim.” 822 F.2d language aggrava- of the Oklahoma that “the (10th Cir.1987) (citing ‘especially Proffitt ting hei- circumstance issue— Florida, 242, 255-56, nous, atrocious, gave no more or cruel’ — (1976)). 2968, 49 L.Ed.2d 913 wantonly ‘outrageously or guidance than the vile, language horrible or inhuman’ that the Although majority the seems to think oth jury Godfrey,” in in returned its verdict erwise, the fact that the Oklahoma Court of “the conclusion of the Oklahoma court that Appeals previously Criminal approved had ‘adequately sup- that the events recited unconstitutionally vague limiting instructions ported jury’s finding’ indistinguish- the only demonstrates that the Oklahoma court’s Georgia in from the action of the able prior objectively actions were “unreasonable” Godfrey, to cure unfettered which failed Teague just purposes, Stringer as in satisfy jury and to the com- discretion objectively Fifth Circuit had been “unreason Eighth mands of the Amendment.” Cart- holding Godfrey apply able” in did not 363-64,108 at 1859. wright, 486 U.S. at Mississippi’s capital punishment scheme. Stringer summarily Cartwright held — at—, Stringer, S.Ct. at Godfrey did not announce a rule “new” from (“The short answer ... is that the Fifth ag- precisely the instructions on the because in Circuit made serious mistake Evans v. Cartwright gravating circumstance (5th 1987)] Thigpen F.2d 239 [809 Cir. Godfrey were as close to identical as was (5th Thigpen Johnson v. F.2d 1243 Cir. [806 given differing sentencing possible con- 1986)] concluding].”). supra [in so See also Georgia. texts Oklahoma and Given these note 5. similarities, jurists reading the reasonable existing Cartwright’s time caselaw at the sentencing, Godfrey, which included majority’s Contrary impression, compelled Cartwright’s

have felt rule significant holding Stringer was not is, Godfrey favor. That dictated the relief Cartwright did not announce a new rule. Graham, sought by Cartwright. Compare Mississippi point, had conceded this see at-, at 902. Stringer, S.Ct. at way, Teague Put another if had been de- majority’s which renders curious the asser- Cartwright, and if cided before Oklahoma tion that Mississippi “[t]he State of invoked Teague argument had invoked its before Teague, arguing petitioner could not Court, Supreme the Court would have rely Cartwright that decision was because jurists held that reasonable could not have final.” announced after his conviction became Cartwright’s concluded that instructions Supreme Ante at 881. And the Court complied Godfrey, with and thus would have deemed the state’s concession “wise”: “compelled been to rule in his favor.” As the Mississippi in Cartwright, Tenth Circuit noted the Okla- In the case now before us does Appeals argue [Cartwright] homa Court of had itself Criminal even appears dropped from its so-called construc- announced a new rule. To us this Graham, Stringer sought sought 6. As did the benefit of the relief would create a new rule postdated finality decisions that of his convic- decision in a new because is Stringer tion. The stated in setting, thereby extending precedent.” Id. question petitioner the threshold relies on a when a habeas instead, here, petitioner Where seeks subsequent decision is “whether the predated finality benefit of a decision that decision relied on announced a new rule.” conviction, question simply whether the at-, Stringer,-U.S. S.Ct. at If it 1135. by precedent. dictated that In relief he seeks is substance, subsequent is determined that the not announce a new decision did questions the in the two contexts are rule, inquiry a second must identical. inquiry grant- be is undertaken. That “whether an individualized sen- Godfrey defendant received [Cart- and a wise concession. somewhat dif- indeed involve tence. wright] did a mis- But it would be language. ferent end, at-, In 112 S.Ct. at 1137. the Id. vagueness ruling conclude take to then, that different the concluded the Court precise lan- limited the Godfrey was aggravating played the factor roles applying In in that case. guage before us Oklahoma, Mississippi schemes Georgia, us in language [Cart- before Godfrey to the Godfrey applicability “underscore[ ] ], ground.” “brea[k] not new wright we did system.” [Cartwright Mississippi ] — at-, 112 S.Ct. at 1135 Stringer, U.S. Id. Butler, at (quoting Clemons, therefore, in relevant facts The 1216). Rather, holding significant Godfrey. in In no different from those were majority holding never even Stringer, a cases, penalty im the death had been both mentions, not an- did was that Clemons aggravating an invalid posed on the basis of Godfrey either. new nounce a rule Clemons, 742-43, 110 at factor. See Mississippi contended that Stringer, In (“[T]he trial court instructed at 1445 S.Ct. Clemons, ease decided after review a direct jury in the bare terms [Clemons’] final, an- Stringer’s became had conviction statute.”). in Mississippi [aggravating] And rule, unavailable and thus was nounced a new appeal: case was that factor cured on neither authority support in Stringer as to. Godfrey, essentially no In there was review argued that sought. The state rea-

relief he all, in there no evi at while Clemons jurists not have believed that sonable Mississippi Supreme Court dence that holding by prior was dictated the Clemons reweighing con had undertaken the that was ag- Mississippi required precedent because necessary stitutionally under a scheme such weighed against miti- gravating factors to be 751-52, Mississippi’s. Id. at S.Ct. determining in whether gating circumstances reasons, For these the Court held 1449-50. penalty, unlike impose the death Okla- Godfrey sought by dictated the relief Georgia, required homa and Clemons, and therefore that Clemons had support a single aggravating a- factor Stringer, not announced a new rule. See -, Stringer, penalty. 1136-40; at—, see 1136. at-, (Souter, J., also id. rejected the state’s Court (criticizing .majority dissenting) for conclud contention, noting anything, Godfrey if Cartwright ing “that the outcome clearly “weighing” state such as by existing prece Clemons was dictated” Mississippi: dent). law, moreover, As a matter of federal Mississippi Supreme view of the apply capital Godfrey’s dictates to its sum, Stringer, support does Indeed, sentencing procedure is correct. majority. Stringer decision reached it so evident that the issue was not even assumes, hold, majority as the did not mentioned Clemons. Cartwright neither Clemons or announced weighing Id. 112 S.Ct. at 1139. “predi- rule their claims were new because state, reasoned, of an the Court the effect Godfrey, Godfrey “dic- cated on” or because aggravating factor cannot be cured invalid “challenges.” held tated” their The Court appellate reweighing, trial or without either in either that no new rule had been created if, be known absent because it cannot underlying peti- the facts each case because factor, weighed would have invalid indistinguish- materially tioner’s claim were cir- aggravating factors Godfrey’s underlying claim from those able initially way did: cumstances Godfrey dictated the relief and therefore weighing process itself has been When the sought by each. skewed, only constitutional harmless-error underlying facts and circumstances analysis reweighing ap- at the trial or If the indistinguishable were as pellate guarantee that the Turner’s claim level suffices to

915 underlying Godfrey’s claim language gave from those as guidance “th[is] no more Clemons’, Cartwright’s Godfrey and were than Godfrey.” did the statute in Stringer, likewise dictate the relief Turner at—, Or, at S.Ct. 1135. however, Obviously, they are seeks. not. observed, Justice Marshall Cartwright’s later Compare at 916-19. See discussion provided infra instruction no limitation whatsoever (“The at similarities ante between Cart- “[Ljike jury’s on the discretion: ‘heinous’and wright striking.”). and the instant case are themselves, phrases ‘atrocious’ ‘extreme

ly shockingly ‘outrageous wicked or evil’ and ly wicked and vile’ could be used ‘“[a] B. person ordinary sensibility fairly [to] char Next, Cartwright order reconcile with ’ ” Shell, every acterize almost murder.” rationale, Stringer its misstatement of the (Marshall, J., U.S. at 111 S.Ct. at 314 majority must omit the relevant facts of .concurring) (quoting Cartwright, 486 at Cartwright. majority recites that “Cart- 363, 108 at (quoting S.Ct. in turn God wright’s sentencing jury given limiting was 1765)) frey, 428-29, 446 U.S. at beyond instruction the bare terms of the ).7 (emphasis Cartwright’s added in Shell in factor,” at-(citing heinousness id. Cart- structions therefore were unconstitutional wright Maynard, 822 F.2d Godfrey they under because could not rea (10th Cir.1987)), “the Oklahoma sonably said provided “princi be to have Appeals ap- Court of Criminal after affirmed pled way case, distinguish [a] in which the plying construction to the facts of penalty imposed, was many from the ease, Cartwright’s focusing on the ‘manner’ cases in which it Godfrey, not.” was 446 U.S. committed,” in which the murder was id. Oklahoma, (citing Cartwright v. 695 P.2d (Okla.Crim.App.1985)). Both state- Cartwright’s appellate similarly review was while, ments, correct, literally incomplete are inadequate. opinion In its affirming the only respects in the that are relevant. Circuit,’the Supreme Tenth Court character- discloses, in Cartwright As the record ized that review as “[T]he follows: Oklahoma held, Stringer Court simply had all of reviewed the circum- Cartwright jury appellate instructions and stances the murder and decided whether indistinguishable review were in substance aggravating the facts made out' the circum- from the instructions and review held to be stance,” which unconstitutionally itself was inadequate Godfrey. The so-called “limit- vague. Cartwright, 486 U.S. at ing” aggravating instruction of the Oklahoma (citing Cartwright, S.Ct. at 1857 822 F.2d at “especially factor for murders that were hei- 1491). The Court continued: conclu- “[T]he nous, cruel,” majority atrocious or which the sion of the Oklahoma court that the events omits, as follows: reads ‘adequately jury’s supported recited extremely The term ‘heinous’ means finding’ indistinguishable ac- from the evil; shockingly or wicked ‘atrocious’ Georgia Godfrey, tion of the court in vile; outrageously means wicked and ‘cru- failed to cure the unfettered discretion pitiless, designed el’ means or to inflict a satisfy and to the commands of the to, high degree pain, utter indifference Eighth Cartwright, Amendment.” of, enjoyment sufferings of others. added). (emphasis Thus, majority what describes as the Cartwright, 822 F.2d at 1488. As the Su- appellate “limiting Oklahoma court’s con- preme explained Stringer, “applying] analysis [applied] struction to the facts of Cart- reasoning same ],” Godfrey case, Cartwright wright’s focusing the Court in [of held on the ‘manner’ respect penalty unques- 7. The instruction with to the definition of the death based on one of the Thus, apparently limiting. tionably vague “cruelty” the term "cruel” was more terms. in- However, aggrava- distinguish Cartwright's Oklahoma’s “heinousness” cannot serve to struction Shell, ting phrased disjunctive, Godfrey's. factor was instructions from 3-4, 498 U.S. at J., (Marshall, Cartwright’s jury imposed concurring). therefore could have 111 S.Ct. at 314 above, Godfrey cases discussed committed,” the Court’s ante at murder was the Godfrey dictated resolu- held that all. the Court at Godfrey, no limitation 881, was, under this the claim. From petitioner’s the tion of from different is no Cartwright therefore disposition of a that the God- majority infers Penry). And (or, from principle, in Clemons a new can never announce frey challenge simply as understood properly all three are course, error, is its failure rule. Its not announced rules were in which new cases in all of these holdings the understand that present- circumstances and the facts because the conclusion that rested on Court’s cases close to in so each were by petitioner the ed petitioner’s claim— underlying each facts the prior precedent present those underlying claim— Turner’s unlike those the decisions, applied, dictated when prior in the facts God- indistinguishable from were course, the sought. Of petitioner relief each Godfrey dictated the that frey, and therefore Cartwright, Godfrey, between similarities by petitioner. sought each relief hand, Clemons, Turner’s and the one and other, anything “strik- are but on the case Compare ante at 882.

ing.” IV.

C. A. it must to mistakenly believes Finally, as it precedents are Supreme Court’s the When consistent, majority misreads the remain applied, is obvious that and it properly read way it misreads in much the same that Shell said to dictate the Godfrey possibly be cannot reason, Cartwright, and for Stringer and seeks, the facts under because relief Turner support of its in attempt to summon Shell its oppo precisely are the lying Turner’s claim “predicated on” claim that conclusion ipso distinguish of, and therefore site facto ill-fated. Teague-barred is Godfrey not is Godfrey’s from, underlying claim. able those at—, West, at 2497 aggrava- See Shell held that The Court in (“[F]ederal (O’Connor, J., concurring) courts by petitioner was challenged ting factor independent evaluation of the must make an Cartwright invalidated as that same the state con existing at the time was, precedent construction that and to determine final order noted, viction became “nearly identical” Marshall Justice consideration is case under whether in that given by the trial court the instruction This is so distinguishable.”). meaningfully Shell, at 314 at 498 U.S. case. majority’s sum, though, the words of even (Marshall, J., concurring). “there standard, may to be claim be said ... be- legally tenable distinction no [was] “challenge” Godfrey his “predicated on” Cartwright.” Maynard v. [Shell ] tween Parks, that case. “dictated” that there at 314. Given Id. (holding that it is between the differences were no material “inform, or enough decision appellate reviews instructions analysis peti govern” or even control requi- Cartwright, there not the Shell and claim). majority’s tioner’s con- predicate for the factual site newly an- supports clusion Shell Godfrey and the between The distinctions precedent the prior nounced standard perforce even the judice, which case sub ease, not the result in the must dictate upon recognize, are evident majority must analytically no sought. Shell is relief only instruc- cursory review. The the most Clemons, Cartwright, fromor different from Godfrey’s jury were that received tions Thus, any Teague. context of from freed penalty if it the death found impose it could majority’s standard the' attempt to divine outrageously or wan- that his offense “was futile. reasoning in Shell is vile, tonly or inhuman horrible mind, torture, depravity of involved D. Godfrey, battery aggravated victim.” (quoting ultimately to have majority appears (1978)). 27-2534.1(b)(7) God- § that in all of Ga.Code the coincidence been misled killing the evidence of Turner’s conduct in judge no effort to define frey’s trial made battery” “aggravated aggra- [the or victim meets Smith definition of terms further battery] clearly Godfrey, completely.... 446 U.S. vated of mind.” See “depravity Godfrey’s We think that the evidence of Turner’s at 1764. When con- sentence, killing in specified duct his victim also meets jury imposed [the the death depravity clearly was outra- definition of mind] “the offense of murder Smith that vile, completely.”). wantonly and inhu- and geously or horrible Godfrey’s affirming sen- Id. And man.” shows, majority’s opinion As the own rea- tence, Georgia Supreme stated Court jurists considering sonable Turner’s claims at jury’s phraseology was “not merely that the the time his conviction became final would State, 302, Godfrey 243 objectionable,” v. Ga. sentencing proce- have concluded that his (1979), 710, and that 718 253 S.E.2d easily Godfrey's, dures satisfied commands. jury’s finding of the supported the evidence By requiring See ante at 891-94. circumstance, id. 253 statutory aggravating jurors beyond find factors above and those at 717-18. S.E.2d present killings, in all intentional Turner’s contrast, jury reasonably jury was instructed instructions could be said to By Turner’s battery” plurality’s and “de have satisfied the commands “aggravated both the on Virginia’s Godfrey aggravating “vile factors be limited pravity prongs of mind” they applicable every mur- factor. The trial court so that are aggravating ness” der, juries provided “prin- aggravated “an bat and that be with a informed the case, way distinguish battery qualitatively cipled [a] and which tery is a ‘ penalty imposed, mini the death was from the quantitatively culpable is more than the many Godfrey, mur in which it was not.” necessary accomplish an act of cases mum 433, 1767; 517-P, der,” “depravity of 446 at see also and that J.A. Florida, 242, 255, degree turpitude and v. 428 U.S. mind is a of moral Proffitt (1976) 2960, 2968, (plurality surpassing that inher 49 L.Ed.2d 913 psychical debasement ordinary legal opinion) (stating Supreme the Florida malice ent the definition 517-Q. imposed a constitutional construc- premeditation,” id. at It further Court had aggravating “[mjaliciously means inten tion on Florida’s “heinousness” instructed that “ by limiting it tionally wrongful to another with factor to the ‘conscienceless doing a act unnecessarily justification.” pitiless at 517- crime which is tortu- legal excuse or Id. out ” Dixon, (quoting “aggravated battery” rous to the victim’ State v. I. These instructions on (Fla.1973))). fact, 1, Virginia 283 So.2d 9 “depravity of mind” tracked the Godfrey’s, instructions met com- Supreme limiting constructions set Turner’s Court’s Commonwealth, import 1985 mands is the of this circuit’s forth in 219 Va. Smith Bass, (1978), 342, 455, 477, 135, F.2d 353 149 cert. decision Turner v. 753 248 S.E.2d (4th Cir.1985), denied, 967, 2419, grounds sub rev’d on other (1979), Murray, nom. Turner v. 476 U.S. which have been consis L.Ed.2d .(1986), which re- tently applied without reversal. S.Ct. jected Godfrey challenge to Turner’s similar review, too, appellate quite aggravat- limiting construction of the Smith Godfrey’s. In contrast from stark different battery. ed substantively meaningless appellate too, sentence, by applying Virginia the Smith Godfrey’s So review of case, Court, facts of Turner’s appeal of constructions to the Supreme on Turner’s direct sentence, Supreme performed ex- Virginia Court currently challenged actly appellate review that one reason- to Tur limiting constructions from Smith required. facts, ably Com- Godfrey would think ner’s to hold that his crime both consti 363,108 Cartwright, battery” pare 486 U.S. “aggravated tuted an and demon (“The affirmance of the death sentencé “depravity of mind.” Turner Com strated Godfrey monwealth, ] Georgia [in Court 234 Va. S.E.2d jury’s denied, to be insufficient to cure the was held cert. 486 U.S. (1988) (“We because that think that unchanneled discretion 100 L.Ed.2d 218 pleaded, previously recognized limit- Turner fired two shots into apply failed to its Smith’s Turner, aggravating circum- ing construction of chest.” 753 F.2d at 353. stance.”)- that Turner shot Smith Given contention, Contrary to Turner’s constitu- lay helpless from the first twice while Smith tionally appellate inadequate review is not head, assertedly to his killed Smith shot demonstrated the mere statistic that him, compare God- merely “snitching” Virginia Supreme has not overturned a (vic- frey, single death sentence based on the “vileness” head), instantly killed tims shots more, factor. Without the statistic could as jurist” there is no doubt that a “reasonable easily Virginia juries impose, reflect that would have concluded the state court’s affirm, capital punishment its courts based product was the of conscientious assessment on the ‘Vileness” factor in the most meaningful appellate panel and review. As a gruesome par- circumstances. The endless Bass, Turner v. of this court said “the summarizing entheticals in Turner’s brief murder here was cold-blooded and calculat- patterns appear hideous fact of those crimes ed, involving no trauma element emotional just only regrettable Godfrey. to bear out this.8 It is initially present as was capital punishment for no reason at all. the state of law is shot Smith While Smith lay helpless legitimately argue against but and while Bain alive Officer such one can her, Appellant (citing George 8. See Brief of at 53 n. 19 victim's hands behind stuffed sock down her Commonwealth, 264, throat, neck, taped v. 242 Va. 411 S.E.2d 12 mouth and forced her in - denied, (1991), -, blank;, closet, point cert. U.S. 112 S.Ct. shot her doused with her 1591, (1992) (defendant fire, 118 L.Ed.2d 308 sodom accelerant and set her on and left her still inhalation; gun breathing ized child victim used stun on and alive to die of smoke and victim's Commonwealth, 482, victim); penis); attempted Strickler v. 241 Va. to incinerate second v. Clozza 227, denied, Commonwealth, ---, 124, 404 S.E.2d cert. -U.S. 112 228 Va. 321 S.E.2d 273 386, denied, (1991) (defendant (1984), 1230, S.Ct. 116 L.Ed.2d 337 cert. 469 U.S. 105 S.Ct. victim, her, her, 1233, (1985) (defendant stripped abducted beat and sex 84 L.Ed.2d 370 beat 13- hours, ually by killing crushing year-old raped assaulted her before her victim for over two her rock); places large penetrated vagina twigs large her head in four with Stock and her with and Commonwealth, 192, cylindrical object bleeding ton v. 241 Va. 402 S.E.2d before internal suffo 196, denied, —, 280, her); Commonwealth, Fitzgerald cert. U.S. S.Ct. cated 112 v. 223 Va. 615, (1991) (defendant (1982), denied, 116 L.Ed.2d 231 shot S.E.2d victim 292 798 cert. 459 U.S. 1228, 1235, (1983) and off his hands at the wrists while victim 103 cut 75 L.Ed.2d 469 alive); Commonwealth, (defendant still 448, Bennett v. 236 Va. inflicted 184 stab wounds with ma denied, (1988), knife, 374 S.E.2d 303 cert. 490 U.S. chete and death); all sustained before victim's 1765, 1028, (1989) Commonwealth, 109 S.Ct. 104 L.Ed.2d 200 v. LeVasseur 225 Va. (over 564, denied, (1983), period, extended bound victim suffered re 304 S.E.2d 644 cert. 464 U.S. face, 1063, 744, (vic peated (1984) blows to and head was stabbed four 104 S.Ct. 79 L.Ed.2d 202 Commonwealth, lacerations; strangled); times and Correll v. tim sustained at least 43 wounds and 454, 352, denied, 352 S.E.2d cert. 482 back Va. of head crushed blows with blunt instru 931, 3219, ment; (1987) pick two-pronged carving 107 S.Ct. L.Ed.2d ice and fork (defendant victim, him, back; protruding choked robbed kicked found from victim’s victim’s together; liquid poured him in face several times and used unconscious ankles bound bleach body target knife-throwing); body; attempt body); Wise v. Com over and to incinerate monwealth, 322, (1985), Commonwealth, 66, Whitley 230 Va. 337 S.E.2d 715 223 Va. denied, 1112, 1524, 162, denied, 882, cert. 475 U.S. 106 S.Ct. S.E.2d cert. 459 U.S. 103 S.Ct. (1986) 181, (defendant (1982) (defendant struck victim's 74 L.Ed.2d 148 confessed hands, repeatedly, fingers, choking 63-year-old head broke three of victim's widow with bare forehead, throat; strangling rope, cutting tore flesh from nose and shot victim in her with and her eyeball, threw victim in outdoor toilet and fired victim was found with one umbrella inserted into chest); rectum); shotgun Poyner vagina Briley in victim's v. Common her and another in her wealth, 401, 815, denied, Commonwealth, 563, 229 Va. 329 S.E.2d cert. 221 Va. 273 S.E.2d 57 106, 865, 189, (defendant (1980) raped 474 U.S. 88 L.Ed.2d 158 woman in front of hus (defendant (1985) child, tortured one victim before band and after which woman was shot in watched, shooting family her in back of head after he ordered her head four times while husband child, away stripped finally to walk from him and was defendant then shot in front of child her, victim, Commonwealth, shot); raped second shot her in head and Mason v. Va. denied, lot); flung body parking her nude into Jones v. 254 S.E.2d cert. 444 U.S. Commonwealth, (1979) (defendant 228 Va. 323 S.E.2d 554 62 L.Ed.2d denied, woman, (1984), raped 71-year-old cert. struck her several (1985) (defendant ax, body 86 L.Ed.2d 728 tied one times in head with an shoved ax Turner, adequate consideration under on the Texas as does penalty, the death scheme, extending Penry penalty rape, “did not involve that his crime ground cover Graham’s evidence would body mutila- torture, or other abuse of have necessitated “a wholesale abandonment intentional, tion,” merely coldblooded but Graham, of Jurek.” See being. Brief of human of another murder also, declaring at 902. So Turner’s Godfrey.9 Appellant at Cf sentence un constitutional would require limiting constructions the Smith Because “application” Godfrey, merely nor even Turner’s given to “extension,” really repudiation.11 its but its Supreme Court —unlike the Okla- Virginia require holding It would the class of Cartwright, the Mis- procedures in homa death-eligible in Virginia defendants must be fully satis- procedures sissippi Clemons — Godfrey narrowed even further than reason- jurists would in 1988 reasonable fied what indicated, ably Virginia Supreme or that the commands, Godfrey’s va- thought were review of death sentences should be Court’s the basis cating death sentence on Godfrey discriminating even more than rea- Godfrey clearly would new “break would, sonably suggested. holding Such a Godfrey “dictated” ground.” Whereas obviously, quite impose obligation,” a “new Cartwright holding defendants for the Teague, Clemons, clearly a hold- just as “dictates” it Butler, See Virginia. the Commonwealth of here.10 ing for the Commonwealth (“A 412, 110 at 1216 494 S.Ct. new U.S. Jurek/Penry/Graham line reached the explicitly The decision that overrules an earlier conversely. Be- analytic holding obviously ground’ conclusion ‘im- same ‘breaks new or ”). certain, poses obligation.’ Equally was more «like Ju- cause Graham’s evidence a new Penry’s, and Jurek had held it would announce a new rule constitution- than like rek’s constitutionally al law.12 given that such evidence was Jones, rectum, Teague Ante at 882. In our discussion of drove a nail into her handle into her alive)).

wrist, following: to the her on while still was limited and set fire argues party the new on Neither cases petitioner purposefully Godfrey, shot 9. In had [Stringer relies and Sochor v. Flor- which Jones in the with both his wife and mother-in-law head ida, -U.S.-, 2114, 112 S.Ct. 119 L.Ed.2d killing instantly presence shotgun, each (1992) create a new rule that cannot be ] 326 later, daughter. 11-year Moments of his old retroactively collateral in a review police "done a to the he had confessed Lane, Teague Jones's death sentence. v. Cf. crime, thinking been about [had] hideous ... but 288, 1060, 103 L.Ed.2d 334 489 U.S. again." eight years” and would "do it it for (1989) (prohibiting application retroactive on 425-26, Godfrey, 100 S.Ct. at 1763. 446 U'.S. at new collateral review of cases that announce petitioner’s plurality death sentence vacated rules). agree sides that these cases are Both alia, penalty ground, that the death on the inter firmly grounded Godfrey Georgia, 420, v. capriciously imposed because the vic- had been 1759, (1980) 64 L.Ed.2d 398 thus, "instantaneously,” and tims had been killed - Black, Stringer (plurality opinion). impose according plurality, the decision to -, S.Ct. 117 L.Ed.2d 367 U.S. 112 penalty reason. death had not been based on (1992) Godfrey (holding application rule). weighing to statute was not new Dixon, rules Therefore, F.Supp. Compare 766 10. Smith procedural bar under there is no (4th (E.D.N.C.1991), aff'd, F.2d 667 1383-86 Teague application of the new cases on to Cir.1993), grounds, on 14 F.3d 956 rev'd other denied, which Jones relies. Cir.1994) banc), (4th (en cert. U.S. passage - - “indicates” is Id. at What this (1994) 173. —, L.Ed.2d panel accepted parties’ simply that the Jones sought by petitioner (Godfrey when dictates relief peti- agreement that the two cases on which ”[h]einous was instructed that means Sochor, relied, Stringer and did not them- tioner evil,” extremely shockingly and when wicked or law. It create new rules of constitutional selves was unclear from the record whether every a statement that cannot be taken as applied an Carolina Court had North limiting challenge Virginia's in- petitioner’s construction). limiting adequate review, appellate no matter how structions strained, majority’s is difficult to understand the It happens Teague-barred because it is not Murray, statement that in Jones v. 976 F.2d "predicated” Godfrey. to be denied, -, (4th Cir.), cert. -U.S. (1992), that his sentence was unconsti- 12.Turner’s claim "we indicated culpable limiting “the crime was less. challenges Virginia's tutional because instructions penalty by Teague.” death cases appellate than the conduct in other review were not barred forms than constructions of unconsti B. See, tutionally vague aggravating factors. seeking the deciding that Turner is not Collins, (5th e.g., Clark v. 19 F.3d rule, majority endorses benefit of a new Cir.1994) (sexual Collins, abuse); Crank v. circuit, sugges- see ante for (trustworthi (5th Cir.1994) 19 F.3d Kennedy in that there tion of Justice West ness, types nature, of constitutional rules— well-disciplined caring are certain and lov “designed specific purpose of character, rules for the values); family Motley v. Col myriad evaluating a of factual contexts”— (5th Cir.1994) lins, 1223, 1229 (physi 18 F.3d general standards “which of that establish cal, sexual, psychological par abuse necessity require[ case-by-case ] a examina- ents, including “squashing” father’s defen evidence,” application and the tion of the him); pet gerbils dant’s in front of yields infrequently “a which therefore Collins, (5th Madden v. 18 F.3d 307-08 rule, forges that it a new one result so novel Cir.1994) (dyslexia “personality avoid —West, by precedent.” not dictated disorder”). which, sig ance Since Graham — at-, J., (Kennedy, con- nificantly, Kennedy joined Justice —estab added). rules, it curring) (emphasis Such Jurek/Penry lishes rule is not one of seems, may allowing excep- be viewed general rules described Justice Ken analysis general Teague outlined tions West, nedy in it follows that the narrower agree Even were I to with Justice above. Godfrey rule of cannot be such a rule.13 See observations, Kennedy’s I would have to dis- Graham, also majority’s agree with the assertion that the (Souter, J., dissenting) (opining that ma Godfrey, sufficiency rule of like the jority’s Penry distinction of on basis of differ Virginia, of Jackson v. evidence rule type mitigating ences in evidence “flies 307, 99 61 L.Ed.2d 560 Kennedy’s the face” of Justice concur West (1979), Kennedy in which Justice discussed rence). Kennedy’s opinion in Justice own West, general applica- is one of these rules of much, by suggest West confirms as nowhere tion. See ante at 885-87. Godfrey, Stringer, or indeed Certainly Godfrey the rule of is no more line, Godfrey qualifies case in the as a rule expansive Penry, of than the rule Jurek and general application, notwithstanding of namely channeling that in a defendant’s use general full application his discussion of rules evidence, mitigating may of the state West, analysis String which included an mitigating altogether. In- foreclose its effect er, ample opportunity him offered to do so. deed, Godfrey probably rule is less ex- —West, rule, See 112 S.Ct. at 2499 pansive Jurek/Penry than the because J., certainly (Kennedy, concurring).14 evidence comes in more many cases in which the defendant was sen- I also conclude that Turner's "vileness” 13. imprisonment,” Appellant's tenced to life Brief at Teague's claims do not fall within either of two clearly ap- is even more barred because it exceptions. Granting pro- his relief would not pears proportionality to demand some form of category punishment hibit “a certain for a application review addition to the Smith class because their status or of defendants of- However, limiting constructions. Penry, 492 U.S. at 109 S.Ct. at 2953 fense." Supreme proportionality Court held that review added). (emphasis Nor would it lead this court " constitutionally required. Pulley was not rule[ ] to announce a ‘watershed of criminal Harris, 79 L.Ed.2d 29 procedure' implicating the fundamental fairness (1984). allegation As for Turner's that his federal accuracy proceeding.” of the criminal rights constitutional were violated because his Parks, (quoting 494 U.S. at 110 S.Ct. at 1264 Virginia’s crime does not "fit" within vileness 1075). Teague, 489 U.S. at factor, granting require his relief would a rule of constitutional law far less to state deferential question majority's I do not conclusion courts than the "rational factfinder" standard the Teague- that Turner's Strickland claims are not to such claims in Lewisv. barred, although reasoning I do not concur in its Jeffers, 497 U.S. Essentially on this score. assumes, course, for the reasons ex- (1990). This plained by majority, agree majority I with the application that die of the "rational factfinder” by prece- that Turner’s ineffective assistance of counsel standard in itself was dictated Jeffers dent. claims are without merit.

V. jurists that reasonable I conclude

Because claims

hearing Turner’s “vileness”

would, compelled anything, have felt if him on against rule

existing precedent claims, granting and therefore

those holding his death sen- relief and

proposed a new would announce unconstitutional

tence law, that we I believe

rule of constitutional considering claims those

are barred therefore, cannot, join the Teague. I

under holds to the con-

majority’s opinion, which

trary. CANE, Jr., Plaintiff-Appellee,

Honiss W. MARYLAND; COUNTY,

WORCESTER Bloxom; Hurley;

George E. M. John Floyd Bassett; Hancock;

Reginald F. T. Members, Lynch, Worcester

Jeanne Commissioners,

County Defen Board of

dants-Appellants, Dryden; Finney;

George Hinson H. Frostrom, Defendants.

Mark Legal Foundation;

Washington Center Democracy; Voting and United America, Amici Curiae.

States 94-1579.

No. Appeals, Court of

United States

Fourth Circuit.

Argued July 1994. Sept.

Decided

Case Details

Case Name: Willie Lloyd Turner v. David A. Williams, Warden, Powhatan Correctional Center

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 15, 1994

Citation: 35 F.3d 872

Docket Number: 93-4001

Court Abbreviation: 4th Cir.