Burch v. Corcoran ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HEATH WILLIAM BURCH, 
Petitioner-Appellant,
v.
 No. 01-4
THOMAS R. CORCORAN, Warden; J.
JOSEPH CURRAN, JR.,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-98-4054-MJG)
Argued: September 26, 2001
Decided: November 28, 2001
Before WILKINSON, Chief Judge, and NIEMEYER and
KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Wilkinson and Judge Niemeyer joined.
COUNSEL
ARGUED: Henry Mark Stichel, GOHN, HANKEY & STICHEL,
L.L.P., Baltimore, Maryland, for Appellant. Annabelle Louise Lisic,
Assistant Attorney General, Criminal Appeals Division, OFFICE OF
THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.
ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland,
2 BURCH v. CORCORAN
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellees.
OPINION
KING, Circuit Judge:
In 1996, a jury in Prince George’s County, Maryland, convicted
appellant Heath William Burch of the double murder of Robert and
Cleo Davis, and it sentenced Burch to death. Burch has unsuccess-
fully sought habeas corpus relief in the District of Maryland, and he
requests that we reverse the district court and grant habeas corpus
relief. In support of that endeavor, Burch makes the following conten-
tions: (1) that the sentencing provisions of Maryland’s death-penalty
statute are unconstitutional; (2) that the submission of a single Verdict
Form to Burch’s sentencing jury violated his due process rights; (3)
that he received ineffective assistance of counsel at trial; and (4) that
a juror’s reading from a Bible during the jury’s sentencing delibera-
tions violated his constitutional rights. As explained below, these
claims are without merit, and we affirm.
I.
In the early morning hours of March 19, 1995, Burch burglarized
the home of Robert and Cleo Davis in Capitol Heights, Maryland,
intending to steal property that could be sold to support his cocaine
habit. When confronted by the Davises, an elderly couple in their
70’s, Burch savagely attacked them. Following the assaults, Burch
stole their guns, their money, and Mr. Davis’s truck. A family friend
discovered the Davises the next day, and by that time Mr. Davis had
died. Mrs. Davis, who was alive when found on a couch with blood
splattered over her, was hospitalized and died eight days after being
attacked by Burch. The medical examiner determined that Mrs. Davis
died of blunt force injuries and resulting complications. An autopsy
performed on Mr. Davis revealed that he had died from thirty-three
wounds, of which eleven were stab wounds from the blade of a pair
of scissors.
BURCH v. CORCORAN 3
There was overwhelming evidence in Burch’s state court trial link-
ing him to the murders of Mr. and Mrs. Davis. Indeed, Burch con-
fessed to the Maryland authorities that he had entered the Davis home
and killed its occupants. A boot found in Burch’s home matched a
bloody footprint in the Davises’ home, and traces of the victims’
blood were found on clothing in Burch’s home. Additionally, Burch’s
brother testified that on March 19, 1995, the day of the attacks, Burch
came to the brother’s home with blood on his neck and hands and
acknowledged that he had killed two people.
Burch was indicted on April 21, 1995, in the Circuit Court for
Prince George’s County, for the first-degree murders of both Mr.
Davis and Mrs. Davis.1 The State also sought convictions under
Maryland law for the crimes of second-degree murder, voluntary
manslaughter, robbery with a deadly weapon, attempted robbery with
a deadly weapon, robbery, attempted robbery, and first degree bur-
glary. On July 13, 1995, the prosecution notified Burch of its inten-
tion to seek the death penalty on the murder charges.
On March 22, 1996, following a ten-day jury trial, Burch was
found guilty on all counts except voluntary manslaughter, which had
become inapplicable after the jury found Burch guilty of the various
murder charges. After four days of sentencing proceedings, the same
jury was instructed on the sentencing issues. In connection therewith,
the jury was provided with a form captioned "Verdict Sheet: Findings
and Sentencing Determination" ("Verdict Form") to utilize in return-
ing its sentencing verdict. The Verdict Form generally referred to
issues in the singular tense: inter alia, "the murder," "the victim," and
"the sentence." By way of example, it instructed the jurors to "[e]nter
the determination of sentence either ‘Life Imprisonment’ or ‘Death’
according to the following instructions." J.A. 526 (emphasis added).
In doing so, the jurors were required under Maryland law to consider
1
Burch was actually charged in the indictment with eight counts of
first-degree murder, four counts as to each victim. Specifically, he was
charged with the first-degree premeditated murders of Mr. Davis and
Mrs. Davis and with six additional counts of first-degree felony murder
based on the underlying felonies of robbery with a deadly weapon,
attempted robbery with a deadly weapon, robbery, attempted robbery,
and first-degree burglary.
4 BURCH v. CORCORAN
both aggravating and mitigating circumstances. For example, one
listed mitigating circumstance was whether "[t]he murder was com-
mitted while the capacity of the defendant to appreciate the criminal-
ity of his or her conduct or conform his or her conduct to the
requirements of law was substantially impaired as a result of mental
incapacity, mental disorder, or emotional disturbance." Id. at 524
(emphasis added). Another possible mitigating factor listed on the
Verdict Form was whether "[t]he act of the defendant was not the sole
proximate cause of the victim’s death." Id. at 525 (emphasis added).
Burch’s trial attorney did not object to the jury’s use of the Verdict
Form, and on March 29, 1995, the jury returned a verdict of "Death"
against Burch. The completed Verdict Form, however, failed to spec-
ify whether the jury was returning one or two death sentences. As a
result, Burch’s lawyer contended, in post-trial proceedings, that only
one death sentence could be imposed. The trial court rejected this
contention, however, and on April 10, 1996, it imposed two death
sentences on Burch — one for the murder of Mr. Davis and a second
for the murder of Mrs. Davis. Burch also received consecutive
twenty-year prison sentences on three other convictions, i.e., robbery
with a deadly weapon, attempted robbery with a deadly weapon, and
first-degree burglary. Burch’s remaining convictions merged for sen-
tencing purposes, and his aggregate sentence then consisted of two
death sentences plus sixty years of imprisonment.
On direct review, the Court of Appeals of Maryland affirmed each
of Burch’s convictions. Burch v. State, 696 A.2d 443 (Md. 1997).2
However, because the Verdict Form referred in the singular only to
"the sentence," the court determined that only one death sentence
could properly be imposed on Burch. Finding no difference between
the two brutal murders, the court concluded that "it makes no differ-
ence which sentence we vacate." Id. at 463. It then affirmed Burch’s
death sentence for the murder of Mr. Davis, vacated his death sen-
tence for the murder of Mrs. Davis, and remanded his case to the cir-
2
When a defendant is sentenced to the death penalty in Maryland, his
case proceeds immediately to an automatic review by Maryland’s highest
court, the Court of Appeals of Maryland. This procedure bypasses Mary-
land’s intermediate appellate court, the Court of Special Appeals. See
Md. Code Ann., Crimes & Punishments § 414.
BURCH v. CORCORAN 5
cuit court for imposition of a life sentence for the murder of Mrs.
Davis. On December 1, 1997, the Supreme Court denied Burch’s peti-
tion for certiorari in connection with his direct appeal process. Burch
v. Maryland, 522 U.S. 1001 (1997). As a result of these proceedings,
and with the relief accorded him by the Court of Appeals of Mary-
land, Burch’s remaining aggregate sentence was the death sentence
for the murder of Mr. Davis, plus sixty years in prison.
Thereafter, Burch unsuccessfully sought post-conviction relief in
both the Circuit Court for Prince George’s County, State v. Burch,
Memorandum and Order of Court, No. CT950787X (Circuit Court for
Prince George’s County July 3, 1998) ("Burch, 1998 Memorandum
and Order"), and in the Court of Appeals of Maryland, Burch v. State,
720 A.2d 322 (Md. 1998).3 Subsequently, on April 19, 1999, the
Supreme Court denied Burch’s petition for a writ of certiorari on his
state post-conviction review proceedings. Burch v. Maryland, 526
U.S. 1073 (1999). Burch then turned to the federal district court,
unsuccessfully seeking habeas corpus relief in the District of Mary-
land. Burch v. Kavanagh, Memorandum of Decision, C.A. No. MJG
98-4054 (D. Md. Aug. 18, 2000) ("Burch, 2000 Memorandum of
Decision"). Although the district court denied Burch’s effort to secure
federal habeas corpus relief, it awarded him a certificate of appeala-
bility.4 This appeal followed.
3
Maryland’s Uniform Postconviction Procedure Act provides the statu-
tory procedure for collateral attacks on criminal convictions and sen-
tences. Md. Code Ann., Crimes & Punishments § 645A (current version
at Md. Code Ann., Criminal Procedure § 7-107 (2001)). The common-
law remedy of habeas corpus remains available, however, in situations
for which the Uniform Postconviction Procedure Act does not provide a
remedy. See Gluckstern v. Sutton, 574 A.2d 898, 912 (Md. 1990).
4
In granting Burch a certificate of appealability, the court did not spec-
ify the issue or issues on which it deemed such a certificate to be appro-
priate. It instead stated that it "believe[d] that appeal should be permitted
in any capital case in which petitioner raises arguments that rise above
a level of frivolity." Burch v. Kavanagh, Order, C.A. No. MJG 98-4054
(D. Md. Mar. 2, 2001). In this regard, the court failed to comply with the
mandate of 28 U.S.C. § 2253(c), which provides, in pertinent part, that
"[a] certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right,"
§ 2253(c)(2), and that the certificate of appealability must "indicate
which specific issue or issues satisfy th[at] showing." § 2253(c)(3). The
Warden has not, however, challenged Burch’s certificate of appeala-
bility.
6 BURCH v. CORCORAN
II.
As a general proposition, the standard of review to be applied by
us is quite deferential to the rulings of the state courts. Pursuant to the
standards promulgated in 28 U.S.C. § 2254, a federal court may not
grant a writ of habeas corpus with respect to a claim adjudicated on
the merits in state court proceedings unless the state court’s adjudica-
tion: (1) "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States," 28 U.S.C.
§ 2254(d)(1); or (2) "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." § 2254(d)(2).
The Supreme Court has recently addressed this standard of review,
and it has determined that a state court adjudication is "contrary to"
clearly established federal law only if "the state court arrives at a con-
clusion opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts."
Williams v. Taylor, 529 U.S. 362, 413 (2000). According to the
Supreme Court, a state court decision unreasonably applies clearly
established federal law if, despite correctly identifying the governing
legal principle, it "unreasonably applies that principle to the facts of
the prisoner’s case." Id. at 413. With these standards in mind, we turn
to the issues raised by Burch in this proceeding.
III.
In this appeal, Burch makes four separate challenges to the district
court’s denial of relief on his death sentence for the murder of Mr.
Davis. He contends, as we have previously related, that (1) the sen-
tencing provisions of Maryland’s death-penalty statute are unconstitu-
tional under Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) the
Verdict Form utilized by his sentencing jury violated the principles
enunciated by the Supreme Court in Mills v. Maryland, 486 U.S. 367
(1988); (3) he received ineffective assistance of counsel at his state
court trial; and (4) a juror’s reading from a Bible during jury delibera-
tions on sentencing violated his constitutional rights.
BURCH v. CORCORAN 7
A.
Burch first challenges the constitutionality of part of Maryland’s
death-penalty statute, contending that its sentencing provisions con-
travene the Due Process Clause of the Fourteenth Amendment and the
notice and jury trial guarantees of the Sixth Amendment. These sen-
tencing provisions, found in section 413 of article 27 (Crimes and
Punishments) of the Maryland Code,5 instruct a sentencing jury to
impose the death sentence if it determines, by a preponderance of the
evidence, that the aggravating circumstances outweigh the mitigating
circumstances. Burch maintains that the sentencing scheme found in
section 413 violates the Supreme Court’s recent holding in Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), that "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt."
Significantly, Burch raised his Apprendi claim for the first time in
his effort to obtain federal habeas corpus relief. His claim is therefore
5
Section 413 of the Crimes and Punishments article of the Maryland
Code provides the sentencing procedure to be utilized after a Maryland
jury has found a defendant guilty of first-degree murder. In determining
the appropriate sentence, the jury must consider whether any of the
aggravating circumstances, specified in section 413(d), have been
proven. If the jury finds aggravating circumstances it must then deter-
mine, pursuant to section 413(g), whether any mitigating circumstances
exist. Section 413(h) then provides instructions on how to weigh the
aggravating and mitigating circumstances, as follows:
(1) If the court or jury finds that one or more of these mitigat-
ing circumstances exist, it shall determine whether, by a prepon-
derance of the evidence, the aggravating circumstances outweigh
the mitigating circumstances.
(2) If it finds that the aggravating circumstances outweigh the
mitigating circumstances, the sentence shall be death.
(3) If it finds that the aggravating circumstances do not out-
weigh the mitigating circumstances, a sentence of death may not
be imposed.
Md. Code Ann., Crimes & Punishments § 413(h).
8 BURCH v. CORCORAN
precluded by our recent decision in United States v. Sanders, 247 F.3d
139 (4th Cir. 2001). In Sanders, we explained that "Apprendi is cer-
tainly a new rule of criminal procedure." Id. at 147. Writing for the
court, Chief Judge Wilkinson noted that under Teague v. Lane, 489
U.S. 288 (1989), "[n]ew rules of constitutional criminal procedure are
generally not applied retroactively on collateral review." Id. at 147-
48. There are, however, two limited exceptions in which a new rule
may apply retroactively on collateral review: (1) if the new rule for-
bids criminal punishment of certain primary conduct, or (2) if the new
rule improves the accuracy of convictions and alters our understand-
ing of the bedrock elements necessary for a fair proceeding, thus mak-
ing it a "watershed," Teague, 489 U.S. at 311, rule of criminal
procedure. Sanders, 247 F.3d at 148. In Sanders, we held that the
Apprendi rule does not fall under either of the two Teague exceptions,
and that it therefore does not apply retroactively to cases on collateral
review.
Burch’s judgment of conviction became final on December 1,
1997, when the Supreme Court denied his petition for a writ of certio-
rari. See United States v. Segers, ___ F.3d ___, No. 00 7427, 2001
U.S. App. LEXIS 23876 (4th Cir. Nov. 5, 2001) (judgment of convic-
tion of prisoner who petitioned for writ of certiorari becomes final on
date Supreme Court denies petition). Because his judgment of convic-
tion was final well before the Court’s decision in Apprendi, and
because Apprendi does not apply retroactively to cases pending on
collateral review, Burch cannot obtain any federal habeas corpus
relief under Apprendi. As such, we are unable to reach the merits of
his Apprendi contention.6
6
Even if we could address the merits of Burch’s claim that Apprendi
renders Maryland’s capital punishment sentencing provisions unconstitu-
tional, his contention would fail. In explaining the basis and reach of
Apprendi, Justice Stevens rejected the notion that Apprendi rendered
state death-penalty statutes unconstitutional. See Apprendi, 530 U.S. at
496 ("[T]his court has previously considered and rejected the argument
that the principles guiding our decision today render invalid state capital
sentencing schemes requiring judges, after a jury verdict holding a defen-
dant guilty of a capital crime, to find specific aggravating factors before
imposing a sentence of death.").
Burch was convicted of two counts of first-degree murder at the guilt
phase of his state court trial in Maryland. Each element of those capital
BURCH v. CORCORAN 9
B.
In his appeal, Burch also maintains that his death sentence violates
the principles concerning ambiguous verdict forms enunciated by the
Court in Mills v. Maryland, 486 U.S. 367 (1988). He claims that use
of the flawed Verdict Form in the double murder of Mr. and Mrs.
Davis prevented the jury from applying potentially different mitigat-
ing circumstances as to each victim, thereby contravening his rights
under the Eighth and Fourteenth Amendments of the Constitution.
Specifically, he maintains that because self-defense was a possible
defense only to the murder of Mr. Davis, and the absence of proxi-
mate cause was at issue only as to Mrs. Davis’s death, the use of the
Verdict Form deprived the jury of the ability to apply these mitigating
factors individually.
In its Mills decision, the Supreme Court dealt with a verdict form
that was ambiguous on the question of whether unanimity was
required in order for the jury to find any particular mitigating circum-
stance. When Mills’s sentencing verdict was returned it was unclear
whether the jury had unanimously rejected the existence of each miti-
gating circumstance, or whether the jury was unable to unanimously
agree on the existence of any single mitigating circumstance. As a
result, the Court vacated Mills’s death sentence and accorded him a
new sentencing proceeding. There was, in its view, "a substantial
probability that reasonable jurors, upon receiving the judge’s instruc-
tions in this case, and in attempting to complete the verdict form as
instructed, well may have thought they were precluded from consider-
ing any mitigating evidence unless all 12 jurors agreed on the exis-
tence of a particular such circumstance." Id. at 384.
crimes was proven to the jury beyond a reasonable doubt. When the sen-
tencing jury, pursuant to the provisions of section 413(h) of the Maryland
Code, determined by a preponderance of the evidence that the aggravat-
ing circumstances outweighed the mitigating circumstances and that
therefore a death sentence was warranted, it was simply selecting the
appropriate sentence from a range of penalties that already included the
death penalty. As such, Burch’s sentence of death did not violate
Apprendi because every fact necessary to the capital murder charges
already had been "submitted to a jury, and proved beyond a reasonable
doubt." Apprendi, 530 U.S. at 490.
10 BURCH v. CORCORAN
Burch contends that, just as in Mills, his Verdict Form was so con-
fusing as to preclude the jury from considering mitigating evidence.
Burch maintains that the Verdict Form: (1) prevented the jury from
considering mitigating evidence that his acts were not the sole proxi-
mate cause of Mrs. Davis’s death, and (2) precluded the jury from
considering mitigating evidence of self-defense as to the murder of
Mr. Davis. As we explain below, we are unable to find merit in either
of these contentions.7
Burch’s claim as to mitigating evidence, i.e., that his acts were not
the sole proximate cause of the death of Mrs. Davis, must fail because
he is not under a death sentence for that crime. Due to the deficient
Verdict Form, the Court of Appeals of Maryland vacated his death
sentence for the murder of Mrs. Davis and directed that a life sentence
be imposed. Even if the jury was precluded from considering mitigat-
ing evidence as to the murder of Mrs. Davis — though we hold no
such view — there is no error for us to correct, in that Burch is not
under a death sentence as to Mrs. Davis.8
7
In both his brief on appeal and at oral argument, the Warden has
maintained that Burch failed to exhaust his Mills claim in the state courts
and that therefore the issue was not properly before this Court. In
Burch’s brief to the Court of Appeals of Maryland, he extensively argued
that the Verdict Form violated Maryland state law. Burch merely refer-
enced the Constitution of the United States and the Mills decision in
passing, and did not explain that Mills involved use of an ambiguous and
confusing verdict form. Speaking through Justice Brennan, the Supreme
Court emphasized in Picard v. Connor, 404 U.S. 270, 276 (1971), that
before a habeas corpus claim can be addressed in federal court it must
have been fairly presented to the state courts, i.e., the state courts must
first have "had the first opportunity to hear the claim sought to be vindi-
cated." As this Court has stated, "fair presentation contemplates that both
the operative facts and the controlling legal principles must be presented
to the state court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997)
(internal citations and quotations omitted). We have further observed that
"[o]blique references that hint that a theory may be lurking in the wood-
work will not suffice." Id. Because the question of whether Burch prop-
erly exhausted his Mills claim could be considered a close question, we
proceed to address the merits of his contention.
8
In the sentencing phase, Burch’s lawyer presented a medical expert
who opined that Mrs. Davis died of pneumonia rather than from the inju-
ries resulting from the savage beating inflicted by Burch. Burch asks us
BURCH v. CORCORAN 11
Burch’s second challenge to the Verdict Form is that it precluded
the jury from considering the mitigating circumstance of self-defense
on the murder of Mr. Davis. In this regard, Burch contends that he
acted in self-defense and attacked Mr. Davis with a pair of scissors
only after Mr. Davis approached him with a revolver. As we explain
more fully below, this challenge must also fail.
The use of the Verdict Form in Burch’s trial was governed by the
provisions of Rule 4-343(g) of Chapter 300 (Trial and Sentencing),
Title 4 (Criminal Causes) of the Maryland Rules, entitled "Sentencing
— Procedure in capital cases." Rule 4-343(g) mandates that, in death-
penalty cases, "the findings and determinations shall be made in writ-
ing in the following form," headed "FINDINGS AND SENTENCING
DETERMINATION." Pursuant to the provisions of Section IV of Rule
4-343(g), jurors are instructed, based upon the evidence, to make
determinations on seven possible mitigating circumstances.9 The Ver-
dict Form is required to list the seven possible mitigating circum-
stances contained in Rule 4-343(g), and the jury is provided with
boxes to mark one of the following choices:
(a) We unanimously find by a preponderance of the evi-
dence that the above circumstance exists.
(b) We unanimously find by a preponderance of the evi-
dence that the above circumstance does not exist.
(c) After a reasonable period of deliberation, one or more
to conclude that if the jury had been provided with an individualized
Verdict Form it would have relied on this evidence to find that Burch
was not the sole proximate cause of Mrs. Davis’s death. This contention
is nearly frivolous. In fact, at his post-conviction hearing, Burch’s lawyer
admitted that the use of medical testimony to suggest that Burch was not
the cause of Mrs. Davis’s death caused jury "hostility" toward Burch and
did more harm than good. J.A. 676.
9
After its listing of the seven statutorily enumerated mitigating circum-
stances, the Verdict Form also provides space for the jurors to list any
"additional mitigating circumstances" found to exist by a preponderance
of the evidence. Md. Rule 4-343(g).
12 BURCH v. CORCORAN
of us, but fewer than all 12, find by a preponderance
of the evidence that the above circumstance exists.
The Verdict Form utilized by Burch’s sentencing jury followed the
form set forth in and mandated by Rule 4-343(g). The third of the
seven listed mitigating circumstances, found in both Section IV of
Rule 4-343(g) and the Verdict Form used by Burch’s sentencing jury,
was that "[t]he defendant acted under substantial duress, domination,
or provocation of another person, even though not so substantial as
to constitute a complete defense to the prosecution." Id. This mitigat-
ing circumstance is equivalent to a claim of what is known as "imper-
fect self-defense."10
The Burch jury considered and rejected the mitigating circum-
stance of imperfect self-defense, marking the second box "[w]e unani-
mously find by a preponderance of the evidence that the above
circumstance does not exist." J.A. 524. Notably, the Burch jury had
been instructed about self-defense at the guilt phase of his trial. In that
regard, it could have concluded that Burch acted in complete self-
defense and exonerated him of the murder of Mr. Davis, or it could
have utilized the defense of imperfect self-defense to justify convict-
ing him of the lesser offense of voluntary manslaughter. The jury,
however, rejected all possible self-defense claims and found Burch
guilty of the first-degree murder of Mr. Davis. Unlike the Verdict
Form used in the sentencing phase, there was no ambiguity in the
Verdict Sheet used in the guilt phase of Burch’s trial.11 The Verdict
Sheet clearly differentiated between the murders of Mr. and Mrs.
10
Under Maryland law, the doctrine of imperfect self-defense is recog-
nized. State v. Faulkner, 483 A.2d 759 (Md. 1984). As the Court of
Appeals of Maryland has stated, imperfect self-defense "is not a com-
plete defense. Its chief characteristic is that it operates to negate malice,
an element the State must prove to establish murder. As a result, the suc-
cessful invocation of this doctrine does not completely exonerate the
defendant, but mitigates murder to voluntary manslaughter." Id. at 761.
11
The jury, in the trial’s guilt phase, was provided with a "Verdict
Sheet" to record whether it found Burch guilty or not guilty of the
charged crimes. Thereafter, in the trial’s sentencing phase, it was pro-
vided with the Verdict Form on which to record its sentencing findings
and determinations for those crimes.
BURCH v. CORCORAN 13
Davis. Because the Burch jury rejected the self-defense claim as to
Mr. Davis at the guilt phase, there is no reason to believe that it was
confused when it rejected the mitigating factor of self-defense in the
trial’s sentencing phase. Thus, there is no basis for Burch to contend
that the jury was deprived of the opportunity to consider mitigating
evidence of self-defense as to the murder of Mr. Davis.
As the Court of Appeals of Maryland has already recognized, the
Verdict Form used by the jury in Burch’s sentencing was flawed.
Burch v. State, 696 A.2d 443, 462 (Md. 1997). In comparing Burch’s
case to Mills, however, we do not see a set of "materially indistin-
guishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). In
Mills, there was a substantial possibility that a confusing verdict form
prevented the jury from considering any mitigating evidence. The
flawed Verdict Form utilized in connection with Burch’s sentencing
did not result in confusion precluding the jury from considering miti-
gating evidence. As such, the decision of the Maryland court on this
issue, Burch, 696 A.2d at 459-63, was neither "contrary to," nor an
"unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1).
C.
In his third appellate contention, Burch maintains that the actions
of his trial lawyer deprived him of his Sixth Amendment right to
effective assistance of counsel. This contention has two prongs. First,
Burch contends that his lawyer was constitutionally ineffective in fail-
ing to seek two verdict forms in the sentencing phase of his trial. Sec-
ond, he asserts that his lawyer was ineffective because he failed to
present certain mitigating evidence in the trial’s sentencing phase.
Because Burch’s ineffective assistance claims have been adjudicated
on their merits in the state court, we must review them under the def-
erential standard set forth in 28 U.S.C. § 2254(d)(1), as recently
explained in Williams v. Taylor, 529 U.S. at 403 (stating that prisoner
whose claim has been adjudicated on its merits in state court may
obtain federal habeas corpus relief only by meeting standard enunci-
ated in § 2254(d)(1)).
14 BURCH v. CORCORAN
1.
We first address Burch’s claim that his lawyer’s failure to request
that two separate verdict forms be submitted to the jury in his sentenc-
ing proceedings resulted in the deprivation of his right to effective
assistance of counsel. Our analysis of this contention is guided by the
principles of Strickland v. Washington, 466 U.S. 668, 687 (1984), in
which the Supreme Court explained that a meritorious ineffective
assistance claim must demonstrate two things: first, that counsel’s
performance was deficient and, second, that counsel’s deficient per-
formance prejudiced the defense. Under the second prong of Strick-
land’s test, there is a "strong presumption" that counsel’s strategy and
tactics fall "within the wide range of reasonable professional assis-
tance." Id. at 689. For counsel’s trial performance to be deficient, he
must have "made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,"
id. at 687, and that "counsel’s representation fell below an objective
standard of reasonableness." Id. at 688. To establish prejudice, a
defendant must show that "there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different." Id. at 694. Under Strickland, a reasonable proba-
bility is a "probability sufficient to undermine confidence in the out-
come." Id. Furthermore, and of importance here, in conducting the
ineffectiveness inquiry, "a court need not determine whether coun-
sel’s performance was deficient before examining the prejudice suf-
fered by the defendant." Id. at 697.
Even assuming that the failure of Burch’s lawyer to seek and
secure two verdict forms for the jury’s use in the sentencing phase of
his trial amounted to deficient performance, thus satisfying Strick-
land’s first prong, this ineffective assistance claim must fail because
Burch is unable to satisfy Strickland’s second prong, i.e., he cannot
demonstrate prejudice. As we have already indicated, even if Burch’s
lawyer had insisted on two verdict forms instead of one, Burch would
nonetheless have received the death penalty for his criminal activity.
We agree with the conclusion of the Court of Appeals of Maryland
that:
there can be no question but that all 12 jurors, after weigh-
ing the aggravating and mitigating factors that they found to
BURCH v. CORCORAN 15
exist, concluded that appellant should be put to death for at
least one, if not both, of the murders. The notions asserted
[by Burch]. . . that the jury may have returned two life sen-
tences had it used separate forms to record its decisions have
utterly no basis in fact and are no more than unsupported
conjecture and speculation.
Burch, 696 A.2d at 462. Under Strickland, the burden is on Burch to
"show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different." 466 U.S. at 694. Burch has failed to make any such show-
ing. In these circumstances, we are unable to conclude that the district
court’s rejection of this aspect of Burch’s claims was an unreasonable
application of the clearly established federal law enunciated by the
Supreme Court in Strickland v. Washington.
2.
Burch also maintains that he was denied the effective assistance of
counsel when his lawyer failed to present certain mitigating evidence
in his trial’s sentencing phase. Burch asserts that his lawyer: (1) failed
to present evidence that Burch would not be dangerous in the future
because he had already been incarcerated for 600 days without a
disciplinary infraction; (2) failed to call witnesses prepared to testify
about Burch’s remorse; (3) failed to stress that Burch could never be
paroled if he were spared the death penalty; and (4) failed to present
witnesses who could have testified about Burch’s positive qualities.
Appellant’s Br. at 41-47.
On state post-conviction review, the circuit court determined that
most of the evidence Burch claims was not presented to the sentenc-
ing jury had in fact been presented. The court found, inter alia, that
Burch’s lawyer offered "information regarding [Burch’s] personality
as a child and teenager, the environment in which he was raised, his
relationship with his father, and [his] drug addiction." Burch, 1998
Memorandum and Order at 12. Moreover, Burch’s defense lawyer
testified in the state post-conviction proceeding that he had consid-
ered and investigated all possible claims of mitigation, and that he had
decided, as a matter of litigation strategy, to focus on Burch’s drug
abuse and family background. As a result of this testimony, the state
16 BURCH v. CORCORAN
court found that the performance of Burch’s trial counsel during the
sentencing proceedings demonstrated the exercise of reasonable pro-
fessional judgment, and that Burch had failed to rebut the presump-
tion that his lawyer’s strategy was sound. On federal habeas corpus
review, the district court concluded on this issue that "[t]he state
court’s findings are fully supported by the record; are neither contrary
to nor an unreasonable application of the Strickland standard; and are
objectively reasonable." Burch, 2000 Memorandum of Decision at 23.
After careful consideration of the record, we likewise are unable to
conclude that the state court’s rejection of Burch’s ineffective assis-
tance challenge was an unreasonable application of Strickland.
We are not permitted to second-guess the tactical decision of
Burch’s lawyer not to present every conceivable piece of mitigating
evidence. In Strickland, the Court recognized that "strategic choices
[by counsel] made after thorough investigation of law and facts rele-
vant to plausible options are virtually unchallengeable." Strickland,
466 U.S. at 690; see also Burger v. Kemp, 483 U.S. 776, 794-95
(1987) (refusing to second-guess lawyer’s strategic decision not to
present any mitigating evidence because defendant would not be
served by such evidence); Darden v. Wainwright, 477 U.S. 168, 186-
87 (1986) (rejecting ineffectiveness challenge to defense counsel’s
strategy to present only defendant’s plea for mercy at sentencing hear-
ing). Burch’s defense lawyer made strategic and tactical choices —
as he was obliged to do — to focus on Burch’s drug use and family
background. In so doing, he elicited testimony from Burch’s mother,
his two sisters, several acquaintances, and a licensed social worker
who had twice interviewed Burch. These witnesses painted a consis-
tent picture of Burch growing up with an abusive and alcoholic father,
as well as a thorough portrait of Burch’s drug use. In this regard,
Burch’s lawyer presented a substantial amount of mitigating evi-
dence, and Burch is simply unable to overcome the "strong presump-
tion that counsel’s conduct falls within the wide range of reasonable
professional assistance." Strickland, 466 U.S. at 689. The state court’s
determination that Burch was not denied the effective assistance of
counsel was therefore neither "contrary to," nor an "unreasonable
application of" Strickland, under the provisions of § 2254(d)(1) and
the mandate of the Court in Williams v. Taylor, 529 U.S. 362 (2000).
Burch’s contention on this point therefore fails.
BURCH v. CORCORAN 17
D.
Burch’s final claim on appeal is that his First, Sixth, and Eighth
Amendment rights were violated because a juror read from a Bible
during sentencing deliberations.12 Burch first raised this issue in his
petition for post-conviction relief in the circuit court for Prince
George’s County. The state court, however, declined to permit
Burch’s post-conviction lawyer to subpoena jurors to testify about the
Bible-reading allegations, although it did consider three affidavits
procured from jurors in the case. Based on these affidavits — primar-
ily the affidavit of the juror who had read from a Bible — the state
court decided that "the verdict had already been reached before the
Bible reading occurred." Burch, 1998 Memorandum and Order at 15.
According to the state court, the sentencing verdict was "based upon
the facts of the case rather than any religious law," and "no miscon-
duct occurred during the jury’s sentencing deliberations." Id. Burch
appealed the denial of his petition for post-conviction relief to the
Court of Appeals of Maryland. That court, however, denied the appli-
cation for leave to appeal and did not address the merits of Burch’s
Bible-reading allegation or other claims. Burch v. State, 720 A.2d 322
(Md. 1998).
Burch again raised the Bible-reading issue in his federal habeas
corpus petition in the district court. After its review and consideration
of the three affidavits, the court concluded that they "consistently
state that a juror brought a bible into the jury room, but are inconsis-
tent regarding certain matters . . . and do not address various matters
of potential significance." Burch v. Kavanagh, Memorandum and
Order, C.A. No. MJG 98-4054 (D. Md. Apr. 27, 1999) at 17. The dis-
trict court then decided that Burch had not received a full and fair
state court hearing on the Bible-reading issue, and it provided Burch
an evidentiary hearing on the issue in federal court. At that hearing,
conducted on June 21, 1999, each of Burch’s trial jurors was ques-
12
Burch contends that a juror’s reading of a Bible during sentencing
deliberations violates the First Amendment’s prohibition against estab-
lishment of religion, the Sixth Amendment’s guarantee of an impartial
jury, and the channeled decisionmaking process required in capital cases
by the Eighth Amendment.
18 BURCH v. CORCORAN
tioned individually by a Special Master appointed by the district
court.
Based on the evidence provided by the jurors, the district court then
found, inter alia, that Juror # 1 was "a Christian with strong religious
convictions," and that "[u]nknown to the judge or counsel, [he] car-
ried a Bible (the King James Version, including the New Testament)
with him throughout the jury deliberations." Burch v. Kavanagh,
Memorandum of Decision Re: Ground Six (Bible Issue), C.A. No.
MJG-98-4054 (D. Md. Nov. 1, 1999) at 2 ("Burch, 1999 Memoran-
dum of Decision Re: Bible Issue"). During the sentencing delibera-
tions the juror "quoted (from memory and, on occasion by reading)
from the Bible." Id. The district court nevertheless found that the juror
"did not rely upon the Bible as a source of law as distinct from the
Maryland law as instructed by the judge. Nor did he, in any of his
quoting from the Bible, suggest that other jurors should deviate from
the law as instructed by the trial Judge." Id. As such, "the Bible
quotes, whether stated from memory or read from the book," were
characterized by the district court as "statements of ‘folk wisdom’ or
of cultural precepts." Id. at 2-3.
Interpreting and applying our precedent, the district court observed
that "[t]he Fourth Circuit has held that if there has been an unautho-
rized jury communication, the party seeking to uphold a verdict bears
a heavy burden." Id. at 3. Without deciding the issue, the court
assumed that a juror’s act of reading from the Bible during delibera-
tions "could be viewed as an improper communication." Id. at 4.
Nonetheless, it explained that, because the reading of the Bible in this
case "did not constitute an effort to have any juror decide the case on
a basis other than the law of Maryland there would still be no
improper communication." Id. at 4-5. Further, the court found that,
even if the evidence in Burch’s case is viewed as establishing an
improper jury communication, "there is no reasonable possibility that
any such communication affected the jury verdict." Id. at 5.
We review the findings of fact of a district court in such a proceed-
ing for clear error. Quesinberry v. Taylor, 162 F.3d 273, 276 (4th Cir.
1998). On the other hand, legal conclusions made by the district court
are reviewed de novo. United States v. Boone, 245 F.3d 352, 358 (4th
Cir. 2001).
BURCH v. CORCORAN 19
It is clear that the "right to an impartial jury belongs to the defen-
dant," and that "a rebuttable presumption of prejudice attaches to [an]
impermissible communication." Stockton v. Virginia, 852 F.2d 740,
744 (4th Cir. 1988); see also Haley v. Blue Ridge Transfer Co., Inc.,
802 F.2d 1532, 1537 (4th Cir. 1986) ("[A] new trial must be granted
if there remains a reasonable possibility that the jury’s verdict was
influenced by an improper communication."); United States v.
Barnes, 747 F.2d 246, 250-51 (4th Cir. 1984) ("[T]here is a presump-
tion of prejudice where such improper evidence has been made avail-
able to the jury, and the burden is on the government to prove that it
is harmless."). In our Stockton decision, Judge Wilkinson explained
that "while a presumption of prejudice attaches to an impermissible
communication, the presumption is not one to be casually invoked."
852 F.2d at 745.
We must heed the admonition of Stockton, and we will not casually
find constitutional error in this factual setting. We agree with the dis-
trict court that, under the circumstances, what occurred here did not
constitute an improper jury communication. Moreover, even assum-
ing that the Bible-reading incident involving Burch’s jury constituted
an improper jury communication, the court’s clear finding of fact is
that there was "no reasonable possibility that the jury verdict was
influenced by an improper communication in the form of a quotation
from the Bible." Burch, 1999 Memorandum of Decision Re: Bible
Issue at 8. As such, any presumption of prejudice to Burch is wholly
rebutted. Because we are unable to conclude that the district court’s
finding of fact on this point was clearly erroneous, Burch’s Bible-
reading claim must fail.
IV.
For the foregoing reasons, we affirm the district court’s decision to
deny Burch’s petition for a writ of habeas corpus.
AFFIRMED