Wilson v. Greene ( 1998 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    KENNETH L. WILSON,
    Petitioner-Appellant,
    v.
    No. 98-2
    FRED W. GREENE, Warden,
    Mecklenburg Correctional Center,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    James C. Cacheris, Senior District Judge.
    (CA-96-1133-AM)
    Argued: June 2, 1998
    Decided: August 27, 1998
    Before WILKINSON, Chief Judge, and NIEMEYER and
    MICHAEL, Circuit Judges.
    _________________________________________________________________
    Affirmed by published opinion. Chief Judge Wilkinson wrote the
    opinion, in which Judge Niemeyer joined. Judge Michael wrote an
    opinion concurring in part and concurring in the judgment.
    _________________________________________________________________
    COUNSEL
    ARGUED: Charles William Gittins, LAW OFFICES OF CHARLES
    W. GITTINS, Alexandria, Virginia, for Appellant. Robert Quentin
    Harris, Assistant Attorney General, OFFICE OF THE ATTORNEY
    GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Michele
    J. Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE
    CENTER, Richmond, Virginia; Mark E. Olive, Tallahassee, Florida,
    for Appellant. Mark L. Earley, Attorney General of Virginia, OFFICE
    OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
    lee.
    _________________________________________________________________
    OPINION
    WILKINSON, Chief Judge:
    Kenneth L. Wilson raises various claims regarding his mental
    capacity at the time of Jacqueline Stephens' murder. Wilson was sen-
    tenced to death for that offense. He appeals the district court's dis-
    missal of his amended petition for a writ of habeas corpus. We affirm
    the district court's judgment.
    I.
    On March 27, 1993, Jacqueline Stephens was found naked, bound
    in a spread-eagle fashion to her bed, with multiple stab wounds in her
    chest, neck, cheek, eyebrow, and arm. The events that led to this trag-
    edy began at approximately 3:00 a.m. that morning when Wilson
    entered Stephens' home in Newport News, Virginia. At knifepoint, he
    forced Stephens, her twelve year-old daughter Altomika, and fourteen
    year-old Takeshia Banks upstairs. Wilson ordered Altomika and
    Takeshia into a bedroom and took Jacqueline into her own bedroom.
    While Wilson and Jacqueline were in her bedroom, Altomika heard
    her mother say "Kenny, why you doing this to me? I go with Pinkey
    [Altomika's father], why you doing this to me?" Approximately
    twenty-five minutes later, Wilson and Jacqueline returned to the bed-
    room where the girls were. At Wilson's request, Jacqueline told the
    girls not to say anything; she then took a shower. While Jacqueline
    was showering, Wilson ordered Takeshia to disrobe, tied both girls to
    a bed, and blindfolded them. Wilson, while naked, proceeded to stab
    both girls, cutting them in the neck.
    After Takeshia screamed, Jacqueline confronted Wilson in the hall-
    way. A struggle between Wilson and Jacqueline then ensued, and
    2
    Altomika thought she heard her mother fall down the stairs. Altomika
    and Takeshia escaped their bindings and barricaded the bedroom
    door, but Wilson soon returned and threatened to kill Jacqueline if the
    girls did not open it. The girls complied, and Wilson secured their
    bindings and blindfolded them again. He then left the room briefly but
    soon returned and taunted the blindfolded girls with the knife. Wilson
    left again, yelling at Jacqueline to find her car keys. Altomika heard
    her mother begin to scream then suddenly stop screaming. Wilson
    returned once more, threatened to kill the girls, then withdrew. A
    neighbor saw Wilson depart in Jacqueline's vehicle at approximately
    6:30 a.m. Shortly thereafter, the police found Jacqueline's naked body
    covered with blood and tied to her bed. Pubic hairs and a dried white
    substance which appeared to be semen were observed on her body.
    A few hours later, police found Wilson in a trash dumpster, acting
    "peculiar." Blood tests taken at a hospital the next day revealed
    cocaine and opiates in his system. He also was experiencing rhabdo-
    myolysis, a condition involving the breakdown of muscle tissue pro-
    duced by severe intoxication with certain drugs, including cocaine.
    Wilson was charged with murder during the commission of
    attempted rape, attempted rape, grand larceny, and several counts of
    abduction and malicious wounding. Wilson's original trial counsel
    requested a psychological evaluation to determine both Wilson's
    competency to stand trial and his sanity at the time of the offense. On
    May 10, 1993, Dr. Don Killian, a court-appointed clinical psycholo-
    gist, reported that Wilson was competent to stand trial. In a separate
    report, with the heading "for defense attorney only," Dr. Killian also
    reported that Wilson was sane at the time of the offense. In late Octo-
    ber, Wilson's new trial counsel filed a "Motion for Neurological, Psy-
    chological, Psychiatric and Physical Evaluation of the Defendant."
    The trial court granted the motion on October 27 and appointed Dr.
    Killian to conduct the evaluation. Dr. Killian again met with Wilson
    on November 5, but this time Wilson declined to discuss "his
    thoughts, feelings, or actions" around the time when the crime
    occurred and stated that his attorneys had advised him not to "discuss
    the details of these activities with anyone." At a November 15 hear-
    ing, Wilson confirmed that he did not want to speak to Dr. Killian.
    After the trial, at which Wilson testified, a jury convicted him on
    all counts. Following the sentencing phase, the jury recommended a
    3
    death sentence based on findings of future dangerousness and vile-
    ness, and the trial court later sentenced him to death. On appeal, the
    Virginia Supreme Court upheld the conviction and sentence. Wilson
    v. Commonwealth, 
    452 S.E.2d 669
    (Va. 1995). The conviction
    became final on October 2, 1995, when the United States Supreme
    Court denied certiorari. Wilson v. Virginia, 
    516 U.S. 841
    (1995). The
    Virginia Supreme Court later denied Wilson's petition for a writ of
    habeas corpus. After the district court subsequently denied his federal
    petition, Wilson brought this appeal. Since Wilson filed his federal
    petition in 1997, it is governed by the noncapital provisions of the
    Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh
    v. Murphy, 
    117 S. Ct. 2059
    (1997); Green v. French, No. 97-25, 
    1998 WL 237506
    , at *2 (4th Cir. May 13, 1998).
    II.
    Wilson alleges several trial errors relating to his mental health. He
    attributes these errors to two parties: his court-appointed mental
    health expert and his trial counsel. Wilson claims that Dr. Killian per-
    formed an inadequate evaluation of his sanity at the time of the
    offense. He also blames trial counsel for not developing evidence of
    his insanity and for not requesting a confidential mental health evalu-
    ation before trial. In support of these claims, Wilson relies primarily
    on the report of Dr. Brad Fisher, a clinical forensic psychologist
    appointed by the district court to assist with the preparation of Wil-
    son's federal habeas petition. Dr. Fisher met with Wilson, examined
    Wilson's medical and family history, and reviewed portions of the
    transcript from Wilson's trial. Dr. Fisher found"the evidence is sug-
    gestive but not conclusive about the existence of a temporary condi-
    tion that might have led to a plea of insanity." However, he concluded
    there was "little evidence of a permanent major thought disorder, psy-
    chosis, or major organic impairment."1
    _________________________________________________________________
    1 The parties engage in a protracted fight over whether these claims are
    procedurally defaulted. The Commonwealth charges that Wilson failed
    to raise any of these complaints until his federal habeas petition. Wilson
    retorts that he has several grounds establishing cause and prejudice to
    excuse any default such as a lengthy delay in notifying state habeas
    counsel of his appointment. Because we believe Wilson's claims to be
    meritless in all events, we need not resolve this dispute.
    4
    A.
    We first consider Wilson's arguments relating to the evaluation
    performed by Dr. Killian. In Ake v. Oklahoma, the Supreme Court
    held that under some circumstances a state must assure an indigent
    defendant "access to a competent psychiatrist who will conduct an
    appropriate examination and assist in evaluation, preparation, and pre-
    sentation of the defense." 
    470 U.S. 68
    , 83 (1985). Wilson aims his
    attack solely on whether Dr. Killian conducted an"appropriate"
    examination. He contends that, had Dr. Killian conducted one, he
    would have uncovered the information discussed in Dr. Fisher's
    report.
    We disagree. The Constitution does not entitle a criminal defendant
    to the effective assistance of an expert witness. To entertain such
    claims would immerse federal judges in an endless battle of the
    experts to determine whether a particular psychiatric examination was
    appropriate. See Harris v. Vasquez, 
    949 F.2d 1497
    , 1518 (9th Cir.
    1990); Silagy v. Peters, 
    905 F.2d 986
    , 1013 (7th Cir. 1990). Further-
    more, it would undermine the finality of state criminal convictions,
    which would constantly be subject to psychiatric reappraisal years
    after the trial had ended. 
    Harris, 949 F.2d at 1517-18
    ; 
    Silagy, 905 F.2d at 1013
    .
    This circuit consistently has "rejected the notion that there is either
    a procedural or constitutional rule of ineffective assistance of an
    expert witness, rather than ineffective assistance of counsel." Pruett
    v. Thompson, 
    996 F.2d 1560
    , 1573 n.12 (4th Cir. 1993); see also
    Poyner v. Murray, 
    964 F.2d 1404
    , 1418 (4th Cir. 1992); Waye v.
    Murray, 
    884 F.2d 765
    , 766-67 (4th Cir. 1989) (per curiam). For
    example, the defendant in Waye claimed that his psychiatrist had not
    performed adequately because he had failed to emphasize Waye's
    diminished capacity in his trial testimony. We rejected this claim and
    observed:
    [i]t will nearly always be possible in cases involving the
    basic human emotions to find one expert witness who dis-
    agrees with another and to procure an affidavit to that effect
    from the second prospective witness. To inaugurate a consti-
    tutional or procedural rule of an ineffective expert witness
    5
    in lieu of the constitutional standard of an ineffective attor-
    ney, we think, is going further than the federal procedural
    demands of a fair trial and the constitution 
    require. 884 F.2d at 767
    .
    Waye thus squarely forecloses Wilson's argument to the extent that
    he grounds it in a right to effective assistance from Dr. Killian. Wil-
    son's attempt to locate such a right in the Ake decision also fails.
    Although Ake refers to an "appropriate" evaluation, we doubt that the
    Due Process Clause prescribes a malpractice standard for a court-
    appointed psychiatrist's performance. Rather, the decision in Ake
    reflects primarily a concern with ensuring a defendant access to a
    psychiatrist or psychologist, not with guaranteeing a particular sub-
    stantive result. See Parker v. Norris, 
    64 F.3d 1178
    , 1185 (8th Cir.
    1995); 
    Harris, 949 F.2d at 1516-17
    ; Henderson v. Dugger, 
    925 F.2d 1309
    , 1316 & n.23 (11th Cir. 1991); Granviel v. Lynaugh, 
    881 F.2d 185
    , 192 (5th Cir. 1989). The defendant in Ake , unlike Wilson, did
    not receive any evaluation of his sanity at the time of the 
    offense. 470 U.S. at 72
    . The Court distinguished Ake's situation from two earlier
    decisions where the defendants, like Wilson, had received such evalu-
    ations and, thus, were not deprived of due process. 
    Id. at 85
    (distin-
    guishing United States ex rel. Smith v. Baldi , 
    344 U.S. 561
    (1953),
    and McGarty v. O'Brien, 
    188 F.2d 151
    (1st Cir. 1951)). In this con-
    text, the precise holding in Ake was simply that the failure to provide
    any evaluation did not comport with the Due Process Clause. See,
    e.g., 
    id. at 74
    (describing holding as requiring a state to "provide
    access to a psychiatrist's assistance") (emphasis added); 
    id. at 83
    (describing the Court's concern "that the indigent defendant have
    access to a competent psychiatrist for the purpose we have dis-
    cussed") (emphasis added); cf. Tuggle v. Netherland, 
    516 U.S. 10
    , 12
    (1995) (per curiam) (describing holding in Ake as requiring the "assis-
    tance" of a psychiatrist).
    The above comments serve to illuminate our differences with the
    partial concurring opinion. That opinion would hold that the Due Pro-
    cess Clause guarantees Wilson the right to a thorough psychiatric
    examination that meets "the minimum standard of care set by the clin-
    ical psychology profession." Post at 20 (Michael, J., concurring in
    part and concurring in the judgment). Drawing from psychiatric texts,
    6
    the partial concurrence insists that due process requires an exam that
    includes "a careful analysis of Wilson's medical records, compilation
    of an accurate social history (including any history of mental illness
    or substance abuse), and a complete mental and physical examination
    (employing whatever diagnostic tests were appropriate under the cir-
    cumstances)." Post at 20, n.3.
    We cannot accept this position. As an initial matter, it reads more
    into the phrase "appropriate [psychiatric] examination" in Ake, 
    470 U.S. 68
    , 83 (1985), than that decision will bear. Significantly, there
    is no mention in Ake of the critical language advanced by the partial
    concurrence, namely the entitlement to some federally supervised
    standard of psychiatric care.
    Moreover, although the partial concurrence purports to distinguish
    between "an appropriate examination from the psychiatrist" and a
    "general right to effective assistance of a psychiatrist," post at 30, they
    turn out to be one and the same. Indeed, the partial concurrence
    acknowledges that the basic inquiry is a malpractice determination.
    See post at 29 ("[T]he right to counsel deals with lawyer malpractice
    while the right to a psychiatrist deals with psychiatrist malpractice.")
    (emphasis omitted). It is easy to see where this position would lead.
    "The ultimate result would be a never-ending battle of psychiatrists
    appointed as experts for the sole purpose of discrediting a prior psy-
    chiatrist's diagnosis." 
    Harris, 949 F.2d at 1517
    (emphasis omitted)
    (quoting 
    Silagy, 905 F.2d at 1013
    ). Indeed, the partial concurrence's
    use of Dr. Fisher's report to pick at Dr. Killian's earlier conclusions
    demonstrates the psychiatric quagmire in which the recognition of
    this new constitutional claim would immerse us.
    Finally, we are reluctant to permit the purely hypothetical horror
    story advanced by the partial concurrence to establish a broad, free-
    standing constitutional claim to the effective assistance of a psychia-
    trist. The Due Process Clause does not require this further transfer of
    function from its traditional state court locus to federal collateral
    review. "A conclusion to the contrary would require . . . federal courts
    to engage in a form of ``psychiatric medical malpractice' review . . .
    of state court judgments." 
    Harris, 949 F.2d at 1517
    (emphasis omit-
    ted) (quoting 
    Silagy, 905 F.2d at 1013
    ). It is clear that Wilson com-
    mitted the acts which resulted in his capital conviction. The path lit
    7
    by the partial concurring opinion refocuses the federal habeas inquiry
    from actual to legal innocence to a much greater extent than we are
    willing to do. See Calderon v. Thompson, 
    118 S. Ct. 1489
    , 1502-03
    (1998) (distinguishing between claims of actual and legal innocence).
    Even if Ake's use of the term "appropriate" suggests that an exami-
    nation must satisfy some minimal level of professional competence,
    Dr. Killian has clearly satisfied it here. In May 1993, he interviewed
    Wilson for approximately ninety minutes to determine his compe-
    tency to stand trial and his sanity at the time of the offense. At this
    meeting, he explored Wilson's educational background, medical his-
    tory, and criminal record. Dr. Killian also evaluated Wilson's cogni-
    tive processes and understanding of the legal proceedings against him.
    Based on Wilson's criminal records and this interview, Dr. Killian
    concluded that Wilson was competent to stand trial and was not suf-
    fering from a significant mental disease or defect at the time of the
    offense. In November 1993, Dr. Killian again met with Wilson and
    discussed his general psychiatric condition, background, and current
    status. Though Dr. Fisher reviewed more records than Dr. Killian and
    explored Wilson's mental state in greater detail, his deeper explora-
    tion into Wilson's past does not demonstrate that Dr. Killian's exami-
    nation was inappropriate.
    Finally, Wilson himself appears to have been partly responsible for
    the difficulties that Dr. Killian encountered in conducting a more
    complete examination. During the November 1993 meeting, accord-
    ing to Dr. Killian, Wilson refused to discuss "any of his thoughts,
    feelings, or actions during the time frame which contained the events
    which ultimately led to charges against him." At a hearing shortly
    before trial, Wilson again made clear to the court that he did not
    desire an evaluation. During the hearing, the following colloquy took
    place between Wilson and the judge:
    THE COURT: Do you desire the psychiatric or psychologi-
    cal evaluation which you originally indicated to your law-
    yers that you did desire? Are you giving that up now?
    THE DEFENDANT: Yes, sir.
    Following this exchange, in an abundance of caution the trial court
    declared a brief recess so that Wilson could consult with his attorneys
    8
    about this choice. After that conference, Wilson reaffirmed his desire
    not to speak with Dr. Killian:
    THE COURT: All right, Mr. Wilson. What is your pleasure
    with respect to the psychiatric or psychological evaluation?
    THE DEFENDANT: I do not want to speak to him.
    THE COURT: You do not want to speak to Doctor Killian,
    correct?
    THE DEFENDANT: Correct.
    Dr. Killian can hardly be faulted for not conducting a more thorough
    evaluation when Wilson repeatedly, and after consultation with his
    lawyers, declined to discuss matters further with him. Thus even if
    Ake provided some standard for an appropriate evaluation, Dr. Kil-
    lian's evaluation of Wilson satisfied it.
    B.
    Wilson also attributes the failure to develop a more complete men-
    tal health defense to his trial counsel. Wilson alleges two basic errors
    constituting ineffective assistance. First, he claims that trial counsel
    inadequately investigated possible defenses that Wilson was insane or
    lacked the requisite mens rea to commit the crimes. Second, he argues
    that trial counsel's October 1993 request for a mental health evalua-
    tion was delinquent and deprived him of the benefit of a confidential
    report. Like the district court, we find both of these claims to be
    meritless.
    To prevail on his claims of ineffective assistance, Wilson must sat-
    isfy two well-established requirements. First, he"must show that
    counsel's representation fell below an objective standard of reason-
    ableness." Strickland v. Washington, 
    466 U.S. 668
    , 688 (1984); see
    also Satcher v. Pruett, 
    126 F.3d 561
    , 572 (4th Cir.), cert. denied, 
    118 S. Ct. 595
    (1997). Our review of counsel's performance in this regard
    is highly deferential. 
    Strickland, 466 U.S. at 689
    ; Truesdale v. Moore,
    
    142 F.3d 749
    (4th Cir. 1998). Second, Wilson also must demonstrate
    9
    "a reasonable probability that, but for counsel's unprofessional errors,
    the result of the proceeding would have been different." 
    Strickland, 466 U.S. at 694
    ; see also 
    Satcher, 126 F.3d at 572
    . Unless Wilson sat-
    isfies both requirements, his ineffective assistance claims must fail.
    Wilson's trial counsel was not ineffective in declining to investi-
    gate his mental health defenses or to develop them at trial. The deci-
    sion not to pursue this line of defense more fully was a reasonable
    one. In May, counsel had received Dr. Killian's report concluding that
    Wilson was not mentally ill at the time of the offense. To be reason-
    ably effective, counsel was not required to second-guess the contents
    of this report. See 
    Pruett, 996 F.2d at 1574
    ; 
    Poyner, 964 F.2d at 1419
    ;
    Washington v. Murray, 
    952 F.2d 1472
    , 1482 (4th Cir. 1991). Having
    received Dr. Killian's report, counsel understandably decided "not to
    spend valuable time pursuing what appeared to be an unfruitful line
    of investigation." Bunch v. Thompson, 
    949 F.2d 1354
    , 1364 (4th Cir.
    1991). Indeed, Wilson told counsel that someone from a neighbor-
    hood crack house had committed the murder, and counsel made every
    effort to locate and interview any witness that might have assisted
    with such a defense. Counsel thus made a diligent effort to pursue
    promising lines of investigation, and Wilson's present attempt to chal-
    lenge his counsel's decision not to investigate mental health issues
    more fully is "a product of hindsight and fails to address the facts rea-
    sonably relied upon by counsel at the time." Roach v. Martin, 
    757 F.2d 1463
    , 1478 (4th Cir. 1985) (citation omitted). 2
    Counsel also reasonably chose not to develop a mental health
    defense at trial. Decisions about what types of evidence to introduce
    "are ones of trial strategy, and attorneys have great latitude on where
    _________________________________________________________________
    2 For similar reasons, we reject Wilson's argument that counsel was
    ineffective for not requesting a psychiatric evaluation until the end of
    October 1993. Since Dr. Killian already had concluded that Wilson was
    sane at the time of the offense, counsel's decision not to seek another
    evaluation sooner was hardly unreasonable. Furthermore, upon giving
    notice of an intent to present psychological evidence in mitigation, coun-
    sel would have been required to disclose the results of such an evaluation
    -- regardless of when it was requested; thus, the timing of the request
    could not affect the trial's outcome. See Va. Code Ann. § 19.2-
    264.3:1.D-E.
    10
    they can focus the jury's attention and what sort of mitigating evi-
    dence they can choose not to introduce." 
    Pruett, 996 F.2d at 1571
    n.9
    (citation omitted); see also 
    Bunch, 949 F.2d at 1364
    . Here, at Wil-
    son's insistence, counsel presented a story at trial that Wilson had not
    committed the crime, and Wilson testified to this effect. To present
    simultaneously a defense that Wilson was insane or lacked the mens
    rea to commit the crime would have undermined Wilson's requested
    strategy and undercut his own credibility.
    Furthermore, even if counsel's investigation or presentation had
    been deficient in some regard, it was not prejudicial. Dr. Fisher's
    report offers only limited support for Wilson's present theory that he
    was insane at the time of the offense or lacked the requisite mens rea
    to commit an intentional crime. Dr. Fisher concluded that "there is lit-
    tle evidence of a permanent major thought disorder, psychosis, or
    major organic impairment." In this respect, his opinion tracks the May
    1993 opinion of Dr. Killian, who found that Wilson"was not suffer-
    ing from a significant mental disease or defect, psychosis, major
    organic impairment" or other similar malady at the time of the
    offense. Even where Dr. Fisher's opinions vary from Dr. Killian's, his
    endorsement of Wilson's present theory is qualified at best. Though
    Dr. Fisher believed that Wilson's abusive upbringing and his use of
    intoxicants around the time of the offense may have contributed to a
    temporary psychosis, he found such evidence to be merely "sugges-
    tive but not conclusive." In light of Dr. Fisher's partial agreement
    with Dr. Killian and his inconclusive judgment about whether Wilson
    was temporarily insane, counsel's failure to introduce this evidence is
    hardly "sufficient to undermine confidence in the outcome" of Wil-
    son's trial. 
    Strickland, 466 U.S. at 694
    ; see Barnes v. Thompson, 
    58 F.3d 971
    , 980-81 (4th Cir. 1995); 
    Poyner, 964 F.2d at 1420-21
    ;
    
    Washington, 952 F.2d at 1482
    .3
    _________________________________________________________________
    3 Wilson briefly argues that the district court erroneously denied him an
    evidentiary hearing on his claims of ineffective assistance. Recently, this
    circuit explained that "[e]videntiary hearings have never been required
    on federal collateral review of state petitioners' ineffectiveness claims."
    Eaton v. Angelone, 
    139 F.3d 990
    , 995 (4th Cir.) (citations omitted), cert.
    denied, 
    118 S. Ct. 2338
    (1998). Wilson has failed to show how an evi-
    dentiary hearing would have aided the factfinding process. Here the dis-
    trict court carefully considered several claims of ineffective assistance
    11
    III.
    Wilson next presses two claims that he is actually innocent of the
    crimes for which the jury convicted him. He maintains that Dr. Fish-
    er's report demonstrates that his voluntary intoxication at the time of
    the offense produced a temporary insanity. He also contends that the
    report shows his level of intoxication was so severe that he lacked the
    mens rea to commit an intentional crime. The district court found both
    of these claims to be defaulted because Wilson failed to raise them
    in state court. Wilson now asserts that he raises these claims simply
    as "``gateway[s]' through which he may pass to argue the merits of his
    defaulted claims." 
    Satcher, 126 F.3d at 570
    .
    Claims of actual innocence, whether presented as freestanding
    ones, see Herrera v. Collins, 
    506 U.S. 390
    , 417 (1993), or merely as
    gateways to excuse a procedural default, see Schlup v. Delo, 
    513 U.S. 298
    , 317 (1995), should not be granted casually. The Supreme Court
    recently emphasized "the narrow scope" of this type of claim.
    
    Calderon, 118 S. Ct. at 1503
    (quoting Sawyer v. Whitley, 
    505 U.S. 333
    , 340 (1992)) (other citation omitted); see also Turner v. Jabe, 
    58 F.3d 924
    , 931-32 (4th Cir. 1995). The claim "must be based on reli-
    able evidence not presented at trial." 
    Calderon, 118 S. Ct. at 1503
    (citing 
    Schlup, 513 U.S. at 324
    ). A reviewing court must evaluate the
    new evidence alongside any other admissible evidence of the defen-
    dant's guilt, see Bousley v. United States, 
    118 S. Ct. 1604
    , 1611-12
    (1998), and may grant relief only where "a constitutional violation has
    probably resulted in the conviction of one who is actually innocent."
    Murray v. Carrier, 
    477 U.S. 478
    , 496 (1986). Evaluated under this
    "demanding" standard, see 
    Calderon, 118 S. Ct. at 1503
    , Wilson's
    claims of actual innocence must fail.
    We cannot accept Wilson's claim that he is actually innocent
    because his voluntary intoxication caused him to become temporarily
    _________________________________________________________________
    and found them meritless; its failure to hold an evidentiary hearing "in
    no way indicates that the court slighted these claims." 
    Id. In light
    of our
    conclusion that an evidentiary hearing was unnecessary, we need not
    decide whether AEDPA independently might bar a hearing on these
    claims. See 28 U.S.C. § 2254(e).
    12
    insane. Voluntary intoxication generally does not provide a defense
    unless it induces a permanent insanity. See Little v. Commonwealth,
    
    175 S.E. 767
    , 769 (Va. 1934); Downing v. Commonwealth, 
    496 S.E.2d 164
    , 166 (Va. Ct. App. 1998). Here Dr. Fisher found "little"
    evidence that Wilson suffered from a "permanent" disorder and
    merely found it possible that Wilson might have been suffering from
    a "temporary condition" at the time he committed the offense. Even
    had a juror been apprised of Dr. Fisher's report, he would have had
    almost no reason to conclude that voluntary intoxication had pro-
    duced a permanent insanity in Wilson.
    Wilson's claim that he lacked the mens rea to commit an inten-
    tional crime is equally unavailing. Virginia does recognize that "when
    a person voluntarily becomes so intoxicated that he is incapable of
    deliberation or premeditation, he cannot commit a class of murder
    that requires proof of a deliberate and premeditated killing." Wright
    v. Commonwealth, 
    363 S.E.2d 711
    , 712 (Va. 1988) (citations omit-
    ted). Nonetheless, a reasonable juror aware of Dr. Fisher's assess-
    ments still could have found Wilson guilty beyond a reasonable
    doubt. The jury heard Altomika and Takeshia testify how Wilson
    demanded that they go upstairs, how he separated them from Jacque-
    line, how he threatened to kill Jacqueline if the girls did not open the
    door after escaping their bindings, and how he ordered Jacqueline to
    find her car keys. The jury also heard testimony that Wilson drove
    away in Jacqueline's car. A reasonable juror surely could find this
    course of conduct to be the product of a mind capable of deliberation
    and premeditation. See Mathenia v. Delo, 
    99 F.3d 1476
    , 1481-82 (8th
    Cir. 1996) (rejecting actual innocence claim that defendant was inca-
    pable of deliberation), cert. denied sub nom. Mathenia v. Bowersox,
    
    117 S. Ct. 2518
    (1997); Nave v. Delo, 
    62 F.3d 1024
    , 1033 (8th Cir.
    1995) (same). Furthermore, the jury already was aware of Wilson's
    intoxication. It heard a police officer, who found Wilson shortly after
    the crime, testify that Wilson was acting peculiar and suggest that
    Wilson might have been "high." It also heard Wilson testify that he
    had been at a bar with his brother before the offense and had gone to
    Jacqueline's home to smoke some Kooleys -- cigarettes laced with
    cocaine. In light of the fact that the jury found Wilson guilty despite
    its awareness of his intoxication, Wilson has failed to show that, even
    with Dr. Fisher's report, it is more likely than not that no reasonable
    13
    juror would have convicted him. See 
    Nave, 62 F.3d at 1033
    . Thus,
    Wilson's claims of actual innocence must fail.
    IV.
    Wilson next claims that there was insufficient evidence to convict
    him of attempted rape. Since Wilson's indictment listed attempted
    rape as the predicate offense to capital murder, Wilson uses this claim
    indirectly to attack his death sentence as well. Finding ample evi-
    dence to support the conviction for attempted rape, both the Virginia
    Supreme Court on direct appeal and the federal district court on col-
    lateral review rejected this claim.
    Though claims of insufficient evidence are cognizable on collateral
    review, a federal court's review of such claims is"sharply limited."
    Wright v. West, 
    505 U.S. 277
    , 296 (1992) (plurality opinion); see also
    Evans-Smith v. Taylor, 
    19 F.3d 899
    , 905 (4th Cir. 1994) ("The stan-
    dard is obviously rigorous."). Federal review of the sufficiency of the
    evidence to support a state conviction is not meant to consider anew
    the jury's guilt determination or to replace the state's system of direct
    appellate review. 
    Wright, 505 U.S. at 292
    . Thus, a defendant is enti-
    tled to relief only if "no rational trier of fact could have found proof
    of guilt beyond a reasonable doubt." Jackson v. Virginia, 
    443 U.S. 307
    , 324 (1979) (footnote omitted); see also George v. Angelone, 
    100 F.3d 353
    , 357 (4th Cir. 1996), cert. denied, 
    117 S. Ct. 854
    (1997).
    The Jackson standard "must be applied with explicit reference to
    the substantive elements of the criminal offense as defined by state
    law." 
    Jackson, 443 U.S. at 324
    n.16. In Virginia, the elements of
    attempted rape include a direct but ineffectual act toward its consum-
    mation and an intent to engage in sexual intercourse. E.g., Fortune v.
    Commonwealth, 
    416 S.E.2d 25
    , 27 (Va. Ct. App. 1992); Chittum v.
    Commonwealth, 
    174 S.E.2d 779
    , 781 (Va. 1970). In this case, Wilson
    has failed to show that no rational trier of fact could find him guilty
    of attempted rape.
    Sufficient evidence supported the jury's conclusion that Wilson
    took an overt act toward consummation of the rape. On direct appeal,
    the Virginia Supreme Court found that Wilson's nudity, his isolating
    Jacqueline Stephens from the young girls, his forcibly binding Jac-
    14
    queline naked to her bed, and the presence of what appeared to be
    pubic hairs and semen on Jacqueline's body satisfied the overt act
    
    requirement. 452 S.E.2d at 674
    . Wilson challenges this finding on the
    ground that the Commonwealth failed to introduce evidence establish-
    ing that the white substance observed on Jacqueline's body was in
    fact semen and failed to prove that the pubic hairs recovered at the
    scene belonged to him. We are unpersuaded. Wilson's argument
    ignores the fact that a federal court reviewing the sufficiency of the
    evidence on collateral attack must consider the evidence in the light
    most favorable to the prosecution and must presume that the jury
    resolved any conflicts over the historical facts in the Common-
    wealth's favor. 
    Wright, 505 U.S. at 296
    ; 
    Jackson, 443 U.S. at 319
    . In
    finding Wilson guilty of attempted rape, the jury clearly could infer
    that the white substance actually was semen and that the pubic hairs
    belonged to him.
    Moreover, such physical evidence is not even necessary to show
    that Wilson took a direct act toward raping Jacqueline. See 
    Fortune, 416 S.E.2d at 28
    ; Granberry v. Commonwealth, 
    36 S.E.2d 547
    , 548
    (Va. 1946). In Fortune, for example, the court found sufficient evi-
    dence of an overt act when the defendant removed his pants, exposed
    himself, forced the victim into a bedroom, and touched her breast dur-
    ing a 
    struggle. 416 S.E.2d at 28
    . On this record, a jury could find that
    Wilson, like the defendant in Fortune, removed his clothes, exposed
    himself, forced Jacqueline into the bedroom and touched her at some
    point during the encounter, thereby committing a direct but ineffec-
    tual act in furtherance of raping her.
    Sufficient evidence likewise supported the jury's finding that Wil-
    son had formed the requisite intent to rape. The Virginia Supreme
    Court concluded that Wilson's actions along with Jacqueline's state-
    ment "Kenny, why you doing this to me? I go with Pinkey, why you
    doing this to me?" supported a finding of intent to 
    rape. 452 S.E.2d at 674
    . Wilson essentially argues that this circumstantial evidence
    does not support a finding of intent to rape but, instead, shows only
    an intent to commit murder. We disagree. "In cases involving an
    attempt to commit a crime, the fact finder is often allowed broad lati-
    tude in determining the specific intent of the actor." 
    Fortune, 416 S.E.2d at 27
    (citing Ridley v. Commonwealth, 
    252 S.E.2d 313
    , 314
    (Va. 1979)). A defendant's intent to commit rape may be shown
    15
    through circumstantial evidence, including the defendant's conduct
    and statements. 
    Fortune, 416 S.E.2d at 27
    ; Green v. Commonwealth,
    
    292 S.E.2d 605
    , 608-09 (Va. 1982); see also Epperly v. Booker, 
    997 F.2d 1
    , 6 (4th Cir. 1993); Inge v. Procunier, 
    758 F.2d 1010
    , 1013 (4th
    Cir. 1985). In this case, in addition to the physical evidence, the jury
    heard testimony that Wilson was naked, took Jacqueline into a bed-
    room, and ordered Takeshia Banks to disrobe. Such conduct and
    statements are entirely "consistent with preparation for sexual inter-
    course" and "permitted the trier of fact to infer that [Wilson] was
    attempting to rape [Jacqueline]." 
    Fortune, 416 S.E.2d at 27
    -28; see
    also 
    Green, 292 S.E.2d at 608-09
    ; Chittum , 174 S.E.2d at 781;
    Ingram v. Commonwealth, 
    66 S.E.2d 846
    , 851 (Va. 1951); cf.
    Tharrington v. Commonwealth, 
    346 S.E.2d 337
    , 339 (Va. Ct. App.
    1986).
    Wilson argues that, under Virginia law, when the state's proof of
    intent is entirely circumstantial, it must exclude every reasonable
    hypothesis of innocence. See Rogers v. Commonwealth, 
    410 S.E.2d 621
    , 627 (Va. 1991). But we have expressly declined to "adopt Vir-
    ginia's stricter standard of review for sufficiency of the evidence" on
    collateral attack and held that the state was not required to exclude
    every reasonable hypothesis of innocence. Inge , 758 F.2d at 1014; see
    also 
    Jackson, 443 U.S. at 326
    (noting that prosecution not "under an
    affirmative duty to rule out every hypothesis except that of guilt
    beyond a reasonable doubt"). Thus, Wilson has failed to show that no
    rational trier of fact could have found proof that he was guilty of
    attempted rape beyond a reasonable doubt, and the district court prop-
    erly rejected this claim. See Hawkins v. Lynaugh , 
    844 F.2d 1132
    ,
    1136 (5th Cir. 1988) (sufficient evidence of attempted rape); cf.
    Holdren v. Legursky, 
    16 F.3d 57
    , 62-63 (4th Cir. 1994) (sufficient
    evidence of sexual assault).
    V.
    Lastly, Wilson argues that the trial court should have instructed the
    jury about the actual effects of his life sentence. Specifically, he
    maintains the jury should have known that he would not be eligible
    for parole for twenty-five years. He claims that both the Eighth
    Amendment's guarantee against cruel and unusual punishment and
    16
    the Fourteenth Amendment's guarantee of due process entitled him to
    such an instruction. We disagree.
    We previously rejected this precise argument in Peterson v.
    Murray. 
    904 F.2d 882
    (4th Cir. 1990). Peterson held that a defendant
    was not constitutionally entitled to inform the jury that he would have
    been ineligible for parole for twenty years. 
    Id. at 886-87.
    The plaintiff
    in Peterson, like Wilson, pressed this argument under both the Cruel
    and Unusual Punishment and Due Process Clauses. Peterson
    extended our earlier holding in Turner v. Bass , 
    753 F.2d 342
    , 353-54
    (4th Cir. 1985), rev'd on other grounds sub nom. Turner v. Murray,
    
    476 U.S. 28
    (1986), which had rejected a similar argument based
    solely on the Due Process Clause.
    Wilson attempts to evade the ruling in Peterson by arguing that the
    legal landscape fundamentally changed after the Supreme Court's
    decision in Simmons v. South Carolina, 
    512 U.S. 154
    (1994). In
    Simmons, the Supreme Court held that a capital defendant, as a matter
    of due process, should be permitted to inform the jury that he is parole
    ineligible if the state argues that he presents a future danger. See 
    id. at 171
    (plurality opinion); 
    id. at 178
    (O'Connor, J., joined by Rehn-
    quist, C.J., and Kennedy, J., concurring in the judgment); see also
    O'Dell v. Netherland, 
    117 S. Ct. 1969
    , 1971 (1997). The plurality
    opinion in Simmons repeatedly stressed the central importance of a
    defendant's parole ineligibility to its holding. See, 
    e.g., 512 U.S. at 163-64
    . And Justice O'Connor's concurring opinion, which was
    joined by two other justices and "provid[ed] the dispositive votes nec-
    essary to sustain [the judgment]," 
    O'Dell, 117 S. Ct. at 1974
    ,
    observed that the Constitution did not require an instruction for
    parole-eligible defendants. See 
    Simmons, 512 U.S. at 176
    ("In a State
    in which parole is available, the Constitution does not require (or pre-
    clude) jury consideration of that fact.").
    Simmons, thus, has not altered our decisions in Peterson and
    Turner to the extent they held that the Constitution does not entitle
    defendants to an instruction about when they would become eligible
    for parole. Simmons did not address whether the Eighth Amendment
    required an instruction on parole ineligibility, 
    see 512 U.S. at 162
    n.4,
    so it can hardly be read to require such an instruction for parole-
    eligible defendants. With respect to the Due Process Clause, this cir-
    17
    cuit has observed that Justice O'Connor's opinion, which expressly
    confined the case to situations of parole ineligibility, should be read
    as expressing its essential holding. See Arnold v. Evatt, 
    113 F.3d 1352
    , 1363 n.65 (4th Cir. 1997), cert. denied sub nom. Arnold v.
    Moore, 
    118 S. Ct. 715
    (1998); Townes v. Murray, 
    68 F.3d 840
    , 849
    (4th Cir. 1995). In Arnold, consistent with this reading of Simmons,
    we held that a defendant was not entitled to inform the jury about the
    actual effects of a life sentence or death sentence since, like Wilson,
    he was not parole 
    ineligible. 113 F.3d at 1363
    . Other courts share our
    reading of Simmons and hold that it does not entitle a defendant to an
    instruction about when he would become eligible for parole. See, e.g.,
    Montoya v. Scott, 
    65 F.3d 405
    , 416-17 (5th Cir. 1995); Allridge v.
    Scott, 
    41 F.3d 213
    , 222 (5th Cir. 1994); Ingram v. Zant, 
    26 F.3d 1047
    ,
    1054 n.5 (11th Cir. 1994) (per curiam). In sum, neither the Eighth
    Amendment nor the Due Process Clause requires the instruction on
    parole eligibility sought by Wilson.
    VI.
    For the foregoing reasons, we affirm the judgment of the district
    court.
    AFFIRMED
    MICHAEL, Circuit Judge, concurring in part and concurring in the
    judgment:
    I concur in the result the majority opinion reaches, and I join in its
    reasoning, except for parts II and V. I disagree with the majority's
    suggestion in part II.A. that the Due Process Clause does not provide
    an indigent criminal defendant with the right to a court-appointed psy-
    chiatrist (or clinical psychologist) who does not commit malpractice
    when examining the defendant. I also have an uneasy feeling that part
    II.B., which holds that counsel was not ineffective for failing to
    second-guess the conclusions of the defense psychologist, might be
    misinterpreted to mean that counsel is not required to seek a second
    opinion when a court-appointed psychologist conducts a wholly inad-
    equate mental examination. Further, although I agree with the majori-
    ty's conclusion in part V that the petitioner in this case had no due
    process right to inform the sentencing jury when he would become
    18
    eligible for parole, I cannot agree with the majority's characterization
    of the precedents governing this issue. I therefore write separately to
    express my views on the right to a psychiatrist, to emphasize that a
    defense lawyer retains at least some responsibility for ensuring that
    the psychiatrist does his job, to offer my interpretation of the cases
    dealing with the parole eligibility issue, and to explain why I would
    affirm the district court's denial of the petitioner's habeas claims.
    I.
    I have no quarrel with the majority's observation that "[t]he Consti-
    tution does not entitle a criminal defendant to the effective assistance
    of a [court-appointed] expert [psychiatric] witness," ante at 5. That is
    a correct statement of the law in this circuit. See Waye v. Murray, 
    884 F.2d 765
    , 766-67 (4th Cir. 1989); see also Pruett v. Thompson, 
    996 F.2d 1560
    , 1573 n.12 (4th Cir. 1993); Poyner v. Murray, 
    964 F.2d 1404
    , 1418-19 (4th Cir. 1992). However, the petitioner, Kenneth Wil-
    son, does not say that he was entitled to "effective assistance" from
    his court-appointed clinical psychologist, Dr. Don Killian. Wilson's
    argument is more circumscribed. He does not claim that he can chal-
    lenge every aspect of Dr. Killian's performance as"ineffective."
    Rather, Wilson maintains only that Dr. Killian was required to pro-
    vide him an "appropriate" examination. This rule, Wilson argues, is
    compelled by Ake v. Oklahoma, 
    470 U.S. 68
    (1985), which held that
    an indigent defendant has a due process right to psychiatric assis-
    tance. See 
    id. at 83
    ("[T]he State must, at a minimum, assure the
    defendant access to a competent psychiatrist who will conduct an
    appropriate examination . . . ."). According to Wilson, Ake required
    Dr. Killian to provide him with a sanity examination that met the
    minimum standard of care for clinical psychologists. 1 Wilson also
    _________________________________________________________________
    1 None of our cases have dealt with a claim that a court-appointed psy-
    chiatrist (or clinical psychologist) committed malpractice in his examina-
    tion of the defendant. Rather, we have addressed a claim that a
    psychiatrist should have performed better on the witness stand, see 
    Waye, 884 F.2d at 766
    , 767, a claim that defense counsel could have chosen a
    better-qualified psychiatrist to examine the defendant, see 
    Pruett, 996 F.2d at 1573
    n.12, 1574 n.13, a claim that counsel should have shopped
    for a psychiatrist who would give a different diagnosis, see Washington
    v. Murray, 
    952 F.2d 1472
    , 1481 (4th Cir. 1991), and a claim that counsel
    19
    claims that his evidence shows that Dr. Killian's examination failed
    to meet that standard. I agree with both arguments. 2 However, I would
    deny Wilson's claim for other reasons.
    The majority expresses some doubt about (but does not squarely
    reject) Wilson's claim that he was entitled to an appropriate examina-
    tion, see ante at 5-6. The majority's doubt is based on the point that
    Ake does not "guarantee[ ] a particular substantive result," ante at 6.
    Of course, Ake does not require that a state provide an indigent defen-
    dant with a psychiatrist who will come to a favorable conclusion, cf.
    
    Poyner, 964 F.2d at 1419
    , or look for evidence of specific psychiatric
    afflictions, see 
    Pruett, 996 F.2d at 1573
    , or make the "correct" diag-
    nosis, see, e.g., 
    Washington, 952 F.2d at 1482
    . But Wilson does not
    claim that Dr. Killian should have provided more favorable results, or
    looked for specific mental disorders, or rendered the "correct" conclu-
    sion regarding his (Wilson's) sanity. Wilson argues only that Ake
    guaranteed him an examination that was not so flawed that it consti-
    tuted malpractice. I agree with Wilson's reading of Ake. Due process
    required Dr. Killian to give Wilson a thorough examination that met
    the minimum standard of care set by the clinical psychology profession.3
    _________________________________________________________________
    should have employed a psychiatrist who was more adept at developing
    imaginative theories of mitigation, see Poyner , 964 F.2d at 1418, 1419.
    Thus, none of our cases control the narrow issue raised by Wilson,
    whether an indigent defendant has a right to an appropriate examination
    that meets the standard of care set by the psychiatric profession.
    2 Further, even if Ake does not give an indigent defendant a right to an
    "appropriate examination" that is independent of the right to effective
    assistance of counsel, I would hold that the Constitution places a height-
    ened responsibility on counsel to ensure that the defendant receives an
    appropriate examination. See part II.A., below.
    3 This would have included a careful analysis of Wilson's medical
    records, compilation of an accurate social history (including any history
    of mental illness or substance abuse), and a complete mental and physi-
    cal examination (employing whatever diagnostic tests were appropriate
    under the circumstances). See generally Comprehensive Textbook of
    Psychiatry/IV 543-48, 836-37 (Harold I. Kaplan & Benjamin J. Sadock
    eds., 4th ed. 1985).
    20
    The majority appears to disagree. Ake's focus, the majority reminds
    us, was on "ensuring a defendant access to a psychiatrist or psycholo-
    gist." Ante at 6. This statement, while true, gets us nowhere. Of
    course, Ake did not explicitly decide whether an indigent defendant
    is entitled to a court-appointed psychiatrist whose psychiatric exami-
    nation does not constitute malpractice. The case did not present that
    question because the defendant there received no sanity examination
    whatsoever. See 
    Ake, 470 U.S. at 72-74
    . However, Ake's reasoning
    suggests a broader rule, that a court-appointed psychiatrist cannot
    commit malpractice when examining a defendant. As Ake explains,
    the right to a court-appointed psychiatrist is a logical extension of the
    right-to-counsel cases, which recognize that "meaningful access" to
    justice under the Due Process Clause means providing all of the
    "tools" necessary for an adequate defense. See 
    id. at 76-77
    (citing
    Gideon v. Wainwright, 
    372 U.S. 335
    (1963); Douglas v. California,
    
    372 U.S. 353
    (1963); Strickland v. Washington , 
    466 U.S. 668
    (1984);
    Evitts v. Lucey, 
    469 U.S. 387
    (1985)). Ake 's reference to these cases,
    which recognize that the right to counsel is really the right to effective
    assistance of counsel, was no accident: the Ake Court meant for the
    right to a psychiatrist to operate somewhat like the right to counsel.4
    By explaining that a psychiatrist was a defense"tool," the Ake court
    meant for that tool to be fully functional. Cf. Harris v. Vasquez, 
    949 F.2d 1497
    , 1530 (9th Cir. 1990) (as amended Aug. 21, 1991) (Noo-
    nan, J., dissenting) ("The emphasis on tools is an emphasis on func-
    tion. A non-functioning tool is useless; so is a non-functioning
    psychiatrist.") Thus, although Ake's"precise holding" gives an indi-
    gent defendant access to a psychiatrist, see ante at 6, Ake's reasoning
    is not so confined. And none of the majority's citations to Ake suggest
    otherwise.5
    _________________________________________________________________
    4 However, I believe that the Ake right cannot and should not function
    exactly like the right to effective assistance of counsel. As I explain in
    part II.A., below, I would recognize the existence of a narrow right to an
    appropriate examination and require that all other challenges to the psy-
    chiatrist's performance as a member of the defense team be brought as
    challenges to the adequacy of counsel's representation. Due process pro-
    vides defendants with a right to an appropriate examination, see 
    Ake, 470 U.S. at 83
    , but it provides no right to effective assistance of a psychiatrist
    generally, see 
    Waye, 884 F.2d at 767
    .
    5 If the Ake Court had viewed the right to a psychiatrist as providing
    mere access to a psychiatrist, I expect that more Justices would have
    21
    We do not have to scrutinize Ake's reasoning closely to understand
    why the due process right to a court-appointed psychiatrist necessarily
    encompasses the right to an appropriate examination by that psychia-
    trist. Simple logic dictates that without the latter right the former is
    meaningless. An example is helpful here. In the majority's view, a
    state apparently would fulfill its duty under Ake by appointing a com-
    petent psychiatrist (with all the right credentials) to examine a defen-
    dant, even if the psychiatrist performs a wholly inadequate
    examination. Let us say, for example, that a psychiatrist saw the
    defendant for only five minutes, in which time the doctor's only "di-
    agnostic tests" were to ask the defendant his name and ask him to
    count to 100.6 This "examination," where the psychiatrist plainly did
    not do his job, cannot be all that Ake guarantees. Such an examination
    is essentially the same as no examination at all. It is a denial of access
    to a psychiatrist, just as in Ake. See 
    Harris, 949 F.2d at 1531
    (Noo-
    nan, J., dissenting) ("Ineffective psychiatric aid is no aid at all.").
    Unless Ake's guarantee of the assistance of psychiatrist is an empty
    one, due process must require that a court-appointed psychiatrist pro-
    vide an indigent defendant with an adequate mental examination. Cf.
    
    Strickland, 466 U.S. at 685-86
    (explaining why the right to counsel
    is the right to effective assistance of counsel); 
    Evitts, 469 U.S. at 394
    -
    96 (same). Therefore, I would hold that a defendant has the right to
    an "appropriate" mental examination, just as Ake said. See Starr v.
    Lockhart, 
    23 F.3d 1280
    , 1289-90 (8th Cir. 1994) ("As Ake explains,
    due process requires access to an expert who will conduct, not just
    any, but an appropriate examination."); see, e.g., Ford v. Gaither, 
    953 F.2d 1296
    , 1298-99 (11th Cir. 1992) (holding that the state-appointed
    psychiatrist's examination was inadequate under Ake when the psy-
    _________________________________________________________________
    joined the Chief Justice's concurring opinion in that case. See 
    Ake, 470 U.S. at 87
    (Burger, C.J., concurring in the judgment) (reading the major-
    ity opinion to address only the narrow question of whether a capital
    defendant may be denied "any opportunity whatsoever" to consult with
    a psychiatrist). However, no other Justice joined the Chief Justice's opin-
    ion.
    6 This hypothetical may be extreme, but I can imagine many other situ-
    ations in which a psychiatrist might perform a grossly inadequate exami-
    nation. The doctor could botch the exam (since no one is perfect) or he
    could be tired, be having a bad day, or simply be in a hurry to make some
    appointment outside the office.
    22
    chiatrist simply interviewed the defendant about the events on the day
    of the crime); cf., e.g., Cowley v. Stricklin, 
    929 F.2d 640
    , 644-45
    (11th Cir. 1991) (holding that the aid provided by the defense psychi-
    atrist failed to satisfy Ake's mandate when the psychiatrist did not
    examine the defendant).7
    The majority does not squarely decide this issue, though. Instead,
    it says that "[e]ven if Ake's use of the term ``appropriate' suggests that
    an examination must satisfy some minimal level of professional com-
    petence, Dr. Killian has clearly satisfied it here." Ante at 8; see also
    ante at 6 (explaining why the examination supposedly met the stan-
    dard of care). Therefore, the Ake question appears to be left for
    another day.
    I cannot agree with the majority that Dr. Killian performed an "ap-
    propriate" examination. This is fact-finding, and the record does not
    support it. Dr. Killian's ninety-minute interview of Wilson (in which
    Dr. Killian did not perform a single diagnostic test or consult any of
    Wilson's medical records) and Dr. Killian's half-page "report" (which
    _________________________________________________________________
    7 The criminal justice system would not be put under strain if we were
    to recognize a defendant's right to a psychiatrist who does his job. That
    psychiatrists sometimes disagree with each other about diagnoses is no
    reason to worry that the finality of convictions will be undermined, see
    ante at 5. Implementing a malpractice standard would not allow a defen-
    dant to challenge his conviction just because some other psychiatrist dis-
    agrees with the court-appointed psychiatrist's diagnosis. Rather, the
    petitioner would have to prove (with the assistance of a new psychiatrist)
    that the court-appointed expert's examination totally failed to meet the
    relevant standard of care. Of course, such claims would rarely succeed.
    Just as with the claim of ineffective assistance of counsel, a defendant
    will rarely be able to prove that his psychiatrist conducted an examina-
    tion that was constitutionally deficient.
    I also am not concerned that allowing a defendant to challenge his psy-
    chiatrist's performance will lead to "an endless battle of ... experts," ante
    at 5. Since there is no right to the effective assistance of counsel on
    habeas review, see Pennsylvania v. Finley, 
    481 U.S. 551
    , 555 (1987),
    there surely would be no right under Ake to an appropriate examination
    on habeas review. Also, the limitations on successive habeas petitions
    will ensure that defendants do not try to raise this claim repeatedly with
    a succession of experts.
    23
    summarily concluded that Wilson was sane at the time of his offense)
    did not "clearly" meet the standard of care. In fact, my reading of a
    report by Dr. Brad Fisher, a clinical psychologist who examined Wil-
    son in 1997, suggests that Dr. Killian's May 1993 examination of
    Wilson fell short of the standard. Dr. Fisher's examination of Wilson
    is a model of professional care, in sharp contrast to Dr. Killian's
    examination. Dr. Fisher interviewed Wilson, performed a full battery
    of tests on him, studied (among other things) Wilson's medical
    records, and obtained a full social and medical history (for which he
    consulted sources independent of Wilson). Further, Dr. Fisher
    reviewed Dr. Killian's notes and report from the May 1993 examina-
    tion. According to Dr. Fisher, "Dr. Killian drew his conclusions with-
    out conducting a complete or comprehensive investigation" of
    Wilson's mental health history. Further, Dr. Fisher wrote, Dr. Killian
    should have studied the "considerable available data" concerning Wil-
    son's mental condition, including Wilson's medical records and his-
    tory of substance abuse, "rather than basing opinions strictly on his
    interview." "At a minimum," Dr. Fisher said, Dr. Killian should have
    considered information regarding "the level of drugs in Mr. Wilson's
    system" at the time of the offense. Although the Constitution did not
    give Wilson the right to an ideal examination like the one provided
    by Dr. Fisher, it required an examination and diagnosis that reflected
    an accepted minimum of skill and care. Dr. Fisher's report suggests
    that Dr. Killian's abbreviated interview of Wilson did not meet the
    relevant standard of care because Dr. Killian failed follow the bare
    minimum of procedures necessary for an adequate sanity examina-
    tion. This was enough to create an issue of fact about whether Dr. Kil-
    lian's May 1993 examination of Wilson constituted malpractice.8
    _________________________________________________________________
    8 If the majority is suggesting, ante at 8, that Dr. Killian conducted a
    second mental examination of Wilson, I disagree. Dr. Killian did not per-
    form a second examination of Wilson during their brief second meeting
    in November 1993. In any event, whether Wilson had a second examina-
    tion is irrelevant to his claim that Dr. Killian committed malpractice in
    his first examination in May 1993. After the first examination Dr. Killian
    concluded that Wilson was sane at the time of the offense. This examina-
    tion was entirely unrelated to the second meeting between Dr. Killian
    and Wilson, which was scheduled by Wilson's counsel in an attempt to
    develop mitigation evidence for the sentencing phase of Wilson's trial.
    24
    Despite my disagreement with the majority on the Ake issue, I
    agree that Wilson's petition should be denied. I would hold that Wil-
    son's Ake claim was procedurally defaulted. Wilson argues on appeal
    that he is not barred from raising the Ake claim because his default
    was excused. Even if this excuse was valid (it is not; see part II.B.),
    I would not allow Wilson to raise it to negate the procedural default
    of his Ake claim. Wilson waived this excuse by failing to mention it
    in district court. There, Wilson did not respond to the Common-
    wealth's argument that he procedurally defaulted his Ake claim by
    asserting that any default was excused. Rather, Wilson argued that he
    had presented his Ake argument in state court.
    Of course, we have the discretion to address issues not raised
    below to prevent a miscarriage of justice. However, I am convinced
    that no injustice would result from the refusal to address Wilson's Ake
    claim. First, as the majority ably explains, Wilson failed to make out
    a claim of actual innocence. See ante at 12-13. Thus, the failure to
    address the claim would not result in the execution of an innocent
    man. Second, as the majority correctly concludes, the violation of
    Wilson's Ake right was harmless beyond a reasonable doubt. Even if
    Dr. Killian had provided Wilson with an appropriate mental examina-
    tion, there is no reason to believe that the doctor would have made
    a different assessment of Wilson's sanity. See ante at 10-11. Third,
    Wilson has not convinced me that he would have avoided a death sen-
    tence if Dr. Killian's first examination had been appropriate. Dr. Kil-
    lian was charged with assessing Wilson's sanity in that examination,
    not with finding mitigating evidence. An appropriate examination
    might have unearthed some mitigating evidence, but Wilson has not
    said what that might be or how it might have affected his sentence.
    Therefore, I see no injustice in applying the normal waiver rule to bar
    Wilson from claiming, for the first time on appeal, that his procedural
    default was excused.
    II.
    As an alternative to his Ake claim, Wilson argues that his counsel
    was constitutionally ineffective under Strickland v. Washington, 
    466 U.S. 668
    (1984), for failing to (1) explore adequately an insanity
    defense and (2) file a timely request for a second mental examination
    (to develop mitigation evidence in anticipation of sentencing). The
    25
    majority rejects Wilson's first claim, reasoning that "[t]o be reason-
    ably effective, counsel was not required to second-guess" Dr. Kil-
    lian's conclusion from the May 1993 examination that Wilson was
    not insane at the time of the offense. Ante at 10. The majority rejects
    Wilson's second claim on the ground that counsel's decision not to
    seek a second examination sooner was not unreasonable because "Dr.
    Killian already had concluded that Wilson was sane at the time of the
    offense." Ante at 10 n.2. I disagree with both of the majority's conclu-
    sions. For the first claim, our main focus ought to be on the psycholo-
    gist's examination, not on counsel's appraisal of it. Further, defense
    counsel was ineffective in preparing Dr. Killian for the first examina-
    tion and, possibly, for failing to obtain a second opinion. For Wilson's
    second claim, defense counsel was ineffective for not filing a timely
    request for a second examination. Still, both claims were procedurally
    defaulted.
    A.
    While I would recognize a right to an appropriate mental examina-
    tion under Ake, the majority has studiously avoided doing that here.
    The majority seems to say that any Ake right can only be enforced
    through a claim of ineffective assistance of counsel. The majority
    goes on to hold that the failure of Wilson's trial counsel to second-
    guess Dr. Killian's sanity evaluation was not constitutionally ineffec-
    tive. Ante at 9-10. I read the majority's holding to be based solely on
    the facts of this case: since Dr. Killian's examination was appropriate,
    see ante at 8, there was no reason for defense counsel to second-guess
    the doctor's methods or his conclusion that Wilson was sane at the
    time of the offense.9 Therefore, I do not read the majority opinion as
    creating a general rule that defense counsel is never required to
    second-guess the court-appointed psychiatrist's mental evaluation of
    the defendant. Such a holding would, if there was no independent Ake
    right to an appropriate examination, effectively insulate a psychia-
    trist's poor performance from review and leave an indigent defendant
    with no recourse when he received an inappropriate mental examina-
    tion. And that is not the law. Even if I am incorrect to assert (in part
    I) that Ake grants indigent defendants an independent right to an
    _________________________________________________________________
    9 Of course, I disagree with the majority's finding that Dr. Killian's
    examination was appropriate. See part I, above.
    26
    appropriate mental examination, a defendant must be able to vindicate
    his Ake right to an appropriate examination through a claim of inef-
    fective assistance of counsel.
    It is well established that substandard performance by a court-
    funded psychiatrist (or clinical psychologist) can be the basis of a
    claim of ineffective assistance of counsel if, by failing to ensure that
    the psychiatrist performed adequately, counsel's performance fell out-
    side of the broad range of conduct that constitutes reasonably effec-
    tive assistance. See, e.g., United States v. Kauffman, 
    109 F.3d 186
    ,
    190-91 (3rd Cir. 1997); Kenley v. Armontrout, 
    937 F.2d 1298
    , 1303-
    08 (8th Cir. 1991); Elledge v. Dugger, 
    823 F.2d 1439
    , 1445-47 (11th
    Cir.), modified in part, 
    833 F.2d 250
    (11th Cir. 1987) (withdrawing
    unrelated portion of the opinion); see also Poyner v. Murray, 
    964 F.2d 1404
    , 1419 (4th Cir. 1992); Washington v. 
    Murray, 952 F.2d at 1472
    , 1481 (4th Cir. 1991). A lawyer is expected to perform compe-
    tently in all aspects of his representation of a criminal defendant,
    including (if the case requires) the assertion of an insanity defense at
    trial or the presentation of mitigation evidence at sentencing. An Ake-
    mandated psychiatrist is an important tool for effective advocacy in
    both situations, so defense counsel is expected to use this tool with
    appropriate skill. To do this defense counsel must, to some extent,
    ensure that a court-funded psychiatrist does his job. This requires that
    a defense lawyer learn something about how a psychiatrist can assist
    him in defending a criminal defendant. Thus, the burden of ensuring
    that a psychiatrist performs adequately for the defense team (as an
    advisor, consultant, witness, etc.) falls on counsel, just as the burden
    of ensuring that any other witness or member of the defense team per-
    forms adequately falls on counsel. Counsel is the expert on conduct-
    ing a criminal defense, after all.
    Lawyer oversight is unlikely to result in full effectuation of Ake's
    mandate, however. Ake held that due process requires an indigent
    defendant be provided with "access to a competent psychiatrist who
    will [1] conduct an appropriate examination and [2] assist in evalua-
    tion, preparation and presentation of the defense." Ake v. Oklahoma,
    
    470 U.S. 68
    , 83 (1985). But a lawyer usually can be expected to guar-
    antee only the second half of this mandate. As a trained advocate a
    criminal defense lawyer is expected to know how to defend an
    accused in a competent manner, by (for example) planning an insanity
    27
    defense, investigating the defendant's background for mitigating evi-
    dence, and adducing psychiatric testimony. So, a lawyer can be
    expected to know when an expert's conclusions would be favorable
    to the defense, to understand what strategies of mitigation might
    impress a jury, and to ensure that the psychiatrist's testimony is pres-
    ented in a compelling fashion. Still, even the most diligent and
    informed defense lawyer will often be hard pressed to second-guess
    the psychiatrist's methods and diagnosis in an examination of the
    defendant's sanity. This is because the mental examination is a part
    of the psychiatrist's job that is totally outside the lawyer's profes-
    sional competence. A psychiatrist is uniquely qualified to perform a
    psychiatric examination and render a diagnosis of the defendant's
    mental condition. As a result, while defense counsel can be expected
    to have the know-how to ensure that the court-appointed psychiatrist
    "assist[s] in evaluation, preparation, and presentation of the defense,"
    counsel rarely will be qualified to determine whether the psychiatrist
    has "conduct[ed] an appropriate examination." Unless the psychia-
    trist's report or conclusions are obviously incoherent, inaccurate,
    incomplete, or the like, a lawyer cannot and should not be expected
    to second-guess the psychiatrist's methods and diagnosis. Cf., e.g.,
    
    Washington, 952 F.2d at 1481-82
    (explaining that, on the facts of that
    case, defense counsel could not have been reasonably expected to
    second-guess the psychiatrist's diagnosis).
    The majority does not distinguish between the lawyer's role and
    the psychiatrist's role, however. Rather, the majority would place the
    full burden of spotting psychiatrist malpractice on defense counsel by
    putting counsel in charge of ensuring that the Ake right is protected.
    This is a questionable arrangement. The Ake right, derived from the
    Due Process Clause, is separate from and independent of the Sixth
    Amendment right to effective assistance of counsel. The former right
    was first recognized in Ake; the latter right has been with us much
    longer, since Gideon v. Wainwright, 
    372 U.S. 335
    , 345 (1963), and
    has for years governed a lawyer's use of a psychiatrist as part of the
    defense team, see, e.g., United States v. Edwards, 
    488 F.2d 1154
    ,
    1163-64 (5th Cir. 1974). Further, these two rights may apply in differ-
    ent circumstances. While I would recognize an independent Ake right
    where (as here) the defendant's mental examination is performed by
    a court-appointed psychiatrist, I am less certain (and I need not say)
    whether there is an Ake right to an appropriate examination separate
    28
    from the right to effective assistance of counsel when counsel uses a
    hand-picked expert, paid for by the defense. Moreover, as I have
    explained, these two rights create two different standards of conduct:
    the right to counsel deals with lawyer malpractice while the right to
    a psychiatrist deals with psychiatrist malpractice. Lawyers are not
    trained as psychiatrists, and they cannot be expected to have the same
    working knowledge of psychiatry as an expert in the field. A lawyer
    cannot be expected to recognize a psychiatrist's malpractice in all
    cases where another psychiatrist would. Thus, the standard for lawyer
    malpractice in evaluating a court-appointed psychiatrist's examination
    is necessarily lower than the standard for psychiatrist (or clinical psy-
    chologist) malpractice in conducting the examination. Therefore, it
    would be a dilution of the Ake right to say that an indigent defendant
    must receive a mental examination that does not constitute
    psychiatrist malpractice -- but only if the examination was so inade-
    quate that the failure to recognize the psychiatrist's malpractice con-
    stituted lawyer malpractice.
    The majority apparently recognizes that, due to lack of medical and
    technical expertise, defense counsel often will have difficulty finding
    fault in a court-appointed psychiatrist's examination or in challenging
    its conclusions. Cf. ante at 11 (citing 
    Washington, 952 F.2d at 1482
    ).
    However, the majority seems content to leave the entire burden of
    protecting the Ake right on counsel. If protection of the Ake right does
    fall entirely on defense counsel, then counsel will be expected to do
    better than I have just described in evaluating the court-appointed
    psychiatrist's mental examination. In order to be effective, counsel
    will have to do some homework and know much more than any lay-
    man about the symptoms and effect of various mental disorders.
    Counsel also will have to study the psychiatrist's report carefully (and
    ask follow-up questions if necessary) to make sure he understands its
    conclusions and the doctor's reasons therefor (just as counsel would
    if he were using the report to put on an insanity defense). Further,
    counsel will have to request a second opinion when he has any reason
    to believe that the psychiatrist bungled the job. Only such heightened
    vigilance will allow counsel to ensure that the psychiatrist has con-
    ducted an appropriate mental examination of the defendant. In my
    view such heightened vigilance is necessary for counsel to discharge
    his duty to effectively represent his client.
    29
    I would prefer a different route, however. I would not give defense
    counsel the whole burden of ensuring that the psychiatrist's examina-
    tion is appropriate. I would give this task, which only a psychiatrist
    is properly qualified to do, to the psychiatrist. This would create a
    division of labor that best effectuates both parts of Ake's mandate.
    The psychiatrist, the expert on mental examinations, would be respon-
    sible for providing the "appropriate examination," 
    Ake, 470 U.S. at 83
    , while the lawyer, the expert at defending the accused, would be
    responsible for ensuring that the psychiatrist "assist[s] in the evalua-
    tion, preparation, and presentation of the defense," 
    id. This rule
    also
    squares with the rule I endorse in part I, that there is a constitutional
    right to an appropriate examination from the psychiatrist but no gen-
    eral right to effective assistance of a psychiatrist. Further, this rule
    best reconciles our cases, which say that counsel is responsible for
    ensuring that the psychiatrist assists in the defense, see 
    Poyner, 964 F.2d at 1418
    , but also imply that counsel cannot normally be expected
    to second-guess a psychiatrist's diagnosis, cf. e.g., 
    Washington, 952 F.2d at 1481-82
    . (Of course, in those infrequent cases where the psy-
    chiatrist's examination is so flawed that any competent defense law-
    yer should notice, both the lawyer and the psychiatrist would be
    responsible.)
    Since I would place the brunt of the burden of ensuring that a
    court-appointed psychiatrist's examination was appropriate on the
    psychiatrist (or clinical psychologist), not on counsel, I do not agree
    that the central question before us here is whether counsel was rea-
    sonable to rely on Dr. Killian's report, see ante at 9-10. The key ques-
    tion we should ask is whether Dr. Killian's first examination was
    appropriate. It was not, assuming that the facts alleged in Wilson's
    petition are true. See part I, above.
    Our inquiry does not end there, however. As I have said, in some
    cases defense counsel's failure to recognize a court-appointed psychi-
    atrist's obvious malpractice and request a second opinion can consti-
    tute ineffective assistance of counsel.10 Further, counsel can be
    ineffective for causing the psychiatrist to perform an appropriate
    examination, by (for example) failing to provide the psychiatrist with
    _________________________________________________________________
    10 This would, I believe, give rise to two independent constitutional vio-
    lations: a violation of Ake and a violation of Gideon.
    30
    access to all the materials necessary for an adequate examination.
    Here, Wilson's petition suggests that trial counsel was ineffective for
    both reasons. First, despite a court order to provide Dr. Killian with
    all "available psychiatric, psychological, medical or social records,"
    counsel did not provide Dr. Killian with access to any relevant
    records. Counsel did not provide Dr. Killian with hospital records
    which showed that, at the time of Wilson's arrest, he was suffering
    from rhabdomyolysis, a condition produced by severe drug intoxica-
    tion. Nor did counsel provide Dr. Killian with any documentation of
    Wilson's history of substance abuse. These records were obviously
    essential to a proper determination of Wilson's mental condition at
    the time of the offense, and counsel was ineffective for failing to
    obtain them for Dr. Killian. Second, I am not sure that it was reason-
    able for defense counsel to decide against an insanity defense (or at
    least, to decide against consulting a second clinical psychologist)
    based on Dr. Killian's report. Here, even a layman might have ques-
    tioned the conclusions reached by Dr. Killian's short examination and
    conclusory report.11
    However, even if trial counsel was ineffective with regard to Wil-
    son's May 1993 examination, Wilson's claim does not succeed. First,
    Wilson did not argue in state court that trial counsel should have
    obtained a second mental examination, and this procedural default
    was not excused. See part II.B. Second, even if trial counsel was inef-
    fective for failing to provide Dr. Killian with Wilson's medical
    records, Wilson suffered no prejudice from that mistake. Wilson has
    not proved that Dr. Killian would have testified that he was insane if
    the doctor had performed an appropriate first examination. See ante
    at 10-11.
    _________________________________________________________________
    11 I also cannot agree that counsel "reasonably chose not to develop a
    mental health defense at trial" because that defense was inconsistent with
    Wilson's testimony that he did not commit the crime, see ante at 10. We
    should not speculate that if Dr. Killian had conducted an appropriate
    examination, defense counsel would have decided not to put on an insan-
    ity defense.
    31
    B.
    The majority also rejects Wilson's claim that defense counsel's
    failure to obtain a second mental examination constituted ineffective
    assistance, reasoning that no second examination was needed because
    Dr. Killian concluded that Wilson was sane. See ante at 10 n.2. I dis-
    agree. Even if counsel thought that Wilson was sane, counsel ought
    to have requested mitigation evidence from a psychologist. Dr. Kil-
    lian's May 1993 examination of Wilson dealt with just one potential
    mitigating factor, Wilson's mental state. However, a second psychiat-
    ric evaluation could have unearthed other kinds of mitigating infor-
    mation about Wilson (such as his childhood exposure to physical
    abuse) that had little to do with his sanity. (Here, defense counsel
    admitted that a second examination by Dr. Killian might uncover mit-
    igating factors that would be helpful at Wilson's sentencing.) Thus,
    even if it was reasonable for counsel to decide, in reliance on Dr. Kil-
    lian's report, not to obtain a further evaluation of Wilson's mental
    state, see, e.g., Gilbert v. Moore, 
    134 F.3d 642
    , 654-55 (4th Cir.
    1998), petition for cert. filed, No. 97-9198 (U.S. May 19, 1998), that
    was no reason for counsel to forego a second psychiatric evaluation.
    I would hold that counsel erred by waiting to move for a second
    examination until two days after notifying the trial court that the
    defense planned to use mental health evidence at trial. Counsel's
    delay was error because under Virginia law the report from any sec-
    ond examination was discoverable by the prosecution as soon as the
    defense notified the court of its intent to use mental health evidence.
    See Va. Code Ann. § 19.2-264.3:1(D) (Michie 1995). The result of
    counsel's failure to request and obtain a second examination before
    notifying the court that the defense planned to use mental health evi-
    dence was that the defense team lost the opportunity to keep the
    results of Wilson's proposed second examination confidential. Once
    counsel realized this mistake and told Wilson that they would have to
    choose between a non-confidential examination and no examination
    at all, Wilson chose the latter option. Therefore, counsel's failure to
    obtain a confidential examination forced Wilson to forego a second
    examination and miss an opportunity to obtain psychiatric mitigation
    evidence at sentencing. This was ineffective lawyering.
    The majority concludes that counsel's failure to obtain a confiden-
    tial second examination was harmless, however, because "counsel
    32
    would have been required to disclose the results of such an examina-
    tion" at trial anyway. Ante at 10 n.2. Again, I disagree. Wilson does
    not claim that he was harmed directly by the prospect of the report's
    disclosure. The harm from counsel's mistake, Wilson argues, was that
    it placed him between a rock and a hard place. Not knowing whether
    the examination would unearth helpful or harmful information for the
    defense, Wilson had to decide whether to forego the examination or
    take the chance that detrimental information would come out in the
    examination and fall into the Commonwealth's hands. And, although
    Wilson's decision to forego the second examination was voluntary,
    Wilson never would have had to make this tough decision if counsel
    had not put him in the unenviable situation of choosing a confidential
    examination or no examination at all. As a result of counsel's mis-
    take, Wilson never had the opportunity to obtain a confidential psy-
    chological examination and decide whether to use that evidence on its
    own merit (based on an informed assessment of whether the benefit
    of the report outweighed any harm of its disclosure). This hindered
    Wilson's ability to develop mitigating evidence for sentencing.
    Despite the merit of Wilson's ineffective assistance of counsel
    claim, I would hold that it is procedurally barred. In his state habeas
    petition, Wilson raised a substantive claim that he was denied a sec-
    ond examination, but he made no allegation that his problem arose
    due to bad lawyering. And, Wilson fails to convince me that this
    default is excused because the "state corrective processes" were either
    absent or inadequate to vindicate his right, see 28 U.S.C.
    § 2254(b)(1)(B) (1994). First, Wilson is simply wrong to say that he
    could not raise his claim in state habeas proceedings. In Virginia it is
    possible to raise an effective assistance of counsel claim in a habeas
    petition, even though the claim was not raised at trial or on appeal.
    Cf. Walker v. Mitchell, 
    299 S.E.2d 698
    , 699-700 (Va. 1983). Second,
    Wilson was not prejudiced when the state court did not notify habeas
    counsel of his appointment until two months prior to the deadline for
    filing the state petition. This mistake (which cut counsel's time to file
    in half) is troubling, but it did not prejudice Wilson's ability to file
    a state habeas petition. Indeed, Wilson's habeas counsel eventually
    filed a substantial petition. And, even if counsel was ineffective for
    filing to include all the points in the petition that Wilson wanted to
    raise, this does not excuse Wilson's procedural default. See Mackall
    33
    v. Angelone, 
    131 F.3d 441
    , 449 (4th Cir. 1997) (en banc), cert.
    denied, 
    118 S. Ct. 907
    (1998).
    III.
    Finally, I would also reject Wilson's claim that he should have
    been allowed to inform the sentencing jury he was ineligible for
    parole for 25 years. As the majority explains, Simmons v. South
    Carolina, 
    512 U.S. 154
    (1994), held that when the only alternative
    sentence to death is life in prison without the possibility of parole
    (and the state puts future dangerousness at issue), due process
    requires that the defendant be allowed to inform the sentencing jury
    that he is parole ineligible. See ante at 17 (citing 
    Simmons, 512 U.S. at 178
    (O'Connor, J., concurring in the judgment)). I agree with the
    majority's conclusion that Simmons does not control in Wilson's case
    because the alternative sentence to death for Wilson was life in prison
    with the possibility of parole after 25 years.12 As a result, the exten-
    sion of Simmons to Wilson's case would be a new rule. Cf. O'Dell v.
    Netherland, 
    117 S. Ct. 1969
    , 1971 (1997).
    _________________________________________________________________
    12 But cf. Brown v. Texas, 
    118 S. Ct. 355
    , 355 (1997) (Stevens, J.,
    respecting the denial of certiorari, joined by Souter, Ginsburg and
    Breyer, J.J.) (explaining that when the alternate sentence to death is life
    without the possibility of parole for 35 years, a rule prohibiting a defen-
    dant from informing the sentence jury of his parole ineligibility is in "ob-
    vious tension" with Simmons); 
    id. at 356
    n.2 (suggesting that "the life-
    without-parole option considered in Simmons is different in degree, but
    not in kind, from the sentencing options at issue here"); 
    Simmons, 512 U.S. at 163
    (Blackman, J., joined by Stevens, Souter and Ginsburg, J.J.)
    ("In assessing future dangerousness, the actual duration of the defen-
    dant's prison sentence is indisputably relevant."); 
    id. at 184-85
    (Scalia,
    J., dissenting, joined by Thomas, J.) ("I see no more reason why the
    United States Constitution should compel the admission of evidence
    showing that . . . the defendant would be nonparolable, than that it should
    compel the admission of evidence showing that . . ., though under current
    law the defendant will be parolable in 20 years, the recidivism rate for
    elderly prisoners released after long incarceration is negligible. All of
    this evidence may be thought relevant to whether the death penalty
    should be imposed . . . .").
    34
    However, I hesitate to join the majority's discussion of Simmons.
    The majority is wrong to say that our decisions, either pre- or post-
    Simmons, govern the substantive question presented by Wilson.13
    Were we squarely presented with the question whether to extend the
    Simmons rule as Wilson argues, we would not be constrained from
    doing so by our own precedents. Further, I disagree with the majori-
    ty's dicta discussing of the scope of Simmons . See ante at 17 ("[T]he
    Constitution does not entitle defendants to an instruction about when
    they would become eligible for parole."). We do not address the full
    scope of Simmons today, just the question before us. Thus, we do not
    decide whether in some other case Simmons might compel a sentenc-
    ing court to allow a capital defendant to inform the jury of the true
    effect of an alternative sentence, even if that sentence has the possibil-
    ity of parole. For example, if Wilson had established that his term of
    25 years of parole ineligibility extended beyond his reasonable life
    expectancy, so that the actual effect of the sentence would be that the
    only alternative to death was life without any possibility of parole,
    _________________________________________________________________
    13 Peterson v. Murray, 
    904 F.2d 882
    (4th Cir. 1990), held that the
    Eighth Amendment was not violated when a court refused to allow the
    defendant to inform the sentencing jury he was ineligible for parole for
    20 years. See 
    id. at 886-87.
    Peterson did not decide the due process claim
    that Wilson makes. Turner v. Bass, 
    753 F.2d 342
    (4th Cir. 1985), rev'd
    on other grounds sub nom., Turner v. Murray , 
    476 U.S. 8
    (1986), and
    Townes v. Murray, 
    68 F.3d 840
    , 849 (4th Cir. 1995), cert. denied, 
    516 U.S. 1100
    (1996), also did not address the question Wilson raises.
    Rather, they dealt with the issue of whether (pre- and post-Simmons,
    respectively) due process requires a sentencing court to instruct the jury,
    sua sponte, that a defendant is ineligible for parole. See 
    Turner, 753 F.2d at 353-54
    ; 
    Townes, 68 F.3d at 849-50
    . Further, although the petitioner in
    Arnold v. Evatt, 
    113 F.3d 1352
    (4th Cir. 1997), cert. denied, 
    118 S. Ct. 715
    (1998), made a claim similar to the one Wilson makes (that the jury
    must be informed, at the defendant's request, of"the actual effect of a
    life sentence or a death sentence," 
    id. at 1363),
    that case did not explic-
    itly decide the issue Wilson asks us to decide. The Arnold court said that,
    on the record before it, the defendant had not showed that he was ineligi-
    ble for parole. 
    Id. Although the
    Arnold court did not say what the alterna-
    tive sentence to death had been, we can assume that the petitioner there
    failed to show that he was parole ineligible at any time after his convic-
    tion. Thus, Arnold is distinguishable from this case because Wilson was
    parole ineligible for 25 years.
    35
    that might have brought Wilson's case within the rule of Simmons.
    Wilson has not made this argument, so I have no difficulty in reject-
    ing his Simmons claim.
    36