Royal v. Taylor ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS LEE ROYAL, JR.,
Petitioner-Appellant,
v.
No. 99-3
JOHN B. TAYLOR, Warden, Sussex I
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge; Robert R. Merhige, Jr.,
Senior District Judge.
(CA-96-956-3)
Argued: June 11, 1999
Decided: August 16, 1999
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Luttig and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Barbara Lynn Hartung, Richmond, Virginia, for Appel-
lant. Katherine P. Baldwin, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
ON BRIEF: Gerald T. Zerkin, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. Mark J. Earley, Attor-
ney General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Thomas Lee Royal Jr. pled guilty to murdering Officer Kenneth
Wallace, a Virginia policeman. The state court sentenced him to
death. After exhausting his state remedies, Royal filed a petition for
federal habeas relief, which the district court dismissed. We affirm.
I.
On February 21, 1994, after drinking and smoking marijuana,
Royal, Yancy Mitchener, Willie Cardell Sanders, and Eldred Acklin
gathered in the parking lot of a shopping center in Hampton, Virginia.
According to his recorded confession, Royal distributed .25-caliber
guns to Mitchener and Acklin, a .32-caliber gun to Sanders, and kept
for himself a .380-caliber gun. The armed men then set out to find and
kill Hampton Police Officer Curtis Cooper, against whom they had
some grudge. Instead, the men encountered Officer Wallace in his
police cruiser. Royal acknowledged that he realized Officer Wallace
was not Cooper, but that he proceeded to shoot the officer anyway.
Royal confessed that "[Officer Wallace] pulled up and, you know,
I leaned on the car, getting off the street, and he said, Are you drunk?
And I turned around and said, No sir, I fired two shots." After shoot-
ing Officer Wallace, Royal "just turned around and walked away."
Mitchener then approached Officer Wallace's car and, according to
Royal, began shooting into the cruiser while screaming and laughing.
Acklin also fired shots at the police vehicle.
A local resident, who had heard the shots, found Officer Wallace
shortly thereafter. When the neighbor arrived, the door to the cruiser
was wide open and the driver's window was shattered, leaving glass
on the ground under the open door. Officer Wallace was seated in his
cruiser, with several visible gunshot wounds to the head. He died four
2
days later from the bullet wounds. An autopsy revealed that Officer
Wallace had been hit twice in the head and that one of these shots was
fatal. A forensic expert later found the fatal bullet to be consistent
with a .380-caliber weapon. The Commonwealth, however, never
recovered the murder weapon, or any fingerprints from the spent car-
tridges found at the scene.
In a videotaped conversation with investigating officers, Royal
confessed to the murder of Officer Wallace. Although initially he told
investigators that one of the other gunmen, Willie Sanders, used a
.380-caliber weapon on the night of the murder, Royal immediately
corrected his account and insisted that he alone carried a .380 that
night. At the time, experts had not yet identified the caliber of the
fatal bullet.
Royal pled guilty to capital murder and use of an illegal firearm.
At sentencing, the court found that Royal posed a serious threat of
future dangerousness and sentenced him to death. The Virginia
Supreme Court affirmed Royal's sentence, see Royal v.
Commonwealth, 458 S.E.2d 575 (Va. 1995), and the United States
Supreme Court denied his petition for certiorari, see Royal v.
Virginia, 516 U.S. 1097 (1996). Royal then filed a state habeas peti-
tion, which the Virginia Supreme Court dismissed.
After a federal court stayed his execution, Royal filed a federal
habeas petition in April, 1997, which he amended in May, 1997.
Royal sought discovery to assist the pursuit of his claims. The district
court permitted Royal to obtain certain medical x-rays, but otherwise
denied his request for discovery. Ultimately the district court dis-
missed Royal's petition, finding all claims either procedurally
defaulted or without merit. See Royal v. Netherland, 4 F. Supp. 2d 540
(E.D. Va. 1998). Later, in an unpublished opinion, the court denied
Royal's motion to alter or amend the judgment.
Royal raises five issues on appeal. First, he contends that he is
actually innocent of capital murder. Second, Royal maintains that the
Commonwealth did not reveal certain exculpatory evidence in a
timely manner, in violation of Brady v. Maryland , 373 U.S. 83
(1963). Third, Royal asserts ineffective assistance of state trial coun-
sel based on their failure (a) to pursue a triggerman defense or obtain
3
independent experts, which Royal contends misled him into pleading
guilty, and (b) to investigate and present certain mitigating evidence
at the sentencing hearing. Fourth, Royal argues that the district court
erred in denying him discovery. Finally, Royal contends that the dis-
trict court erred in failing to allow him a full year within which to file
his federal habeas petition.
We address each claim in turn. Because Royal filed his federal
habeas petition after the effective date of the Antiterrorism and Effec-
tive Death Penalty Act of 1996, we review his claims under that Act.
See 28 U.S.C.A. § 2254 (West 1994 and Supp. 1999); Lindh v.
Murphy, 521 U.S. 320, 326 (1997); see also Mueller v. Angelone, ___
F.3d ___, 1999 WL 387369, at *3-7 (4th Cir. June 14, 1999).
II.
Royal contends that he is factually innocent of capital murder
because, under Virginia law, only the triggerman can be sentenced to
death, see Frye v. Commonwealth, 345 S.E.2d 267, 280 (Va. 1986),
and new evidence assertedly reveals that Royal did not fire the fatal
shot in this case.
Initially, Royal maintains that his actual innocence in and of itself
renders his conviction and execution violative of the Eighth and Four-
teenth Amendments. Precedent prevents us from granting Royal's
habeas writ on this basis alone. Because federal habeas relief exists
to correct constitutional defects, not factual errors, "[c]laims of actual
innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent con-
stitutional violation occurring in the underlying state criminal pro-
ceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993).
Although the Herrera Court assumed arguendo that the execution
of a defendant who had made a persuasive claim of actual innocence
would violate the Constitution and therefore warrant federal habeas
relief if no state relief proceedings were available, it stopped short of
holding that such a claim exists in every case. Id. at 417. Rather, the
Court explained that, when available, state clemency proceedings pro-
vide the proper forum to pursue claims of actual innocence based on
new facts. Id. at 411-12, 417. Virginia has such an executive clem-
4
ency process available to Royal. See Va. Code Ann. §§ 53.1-229 to
-231 (Michie 1998); Va. Const. art. V, § 12. Thus we cannot grant
Royal the requested habeas relief based simply on his assertion of
actual innocence due to newly discovered evidence. See Herrera, 506
U.S. at 416-17; see also Lucas v. Johnson, 132 F.3d 1069, 1074-76
(5th Cir. 1998).
This, however, does not end our inquiry. In addition to claiming
actual innocence as an independent basis for habeas relief, Royal also
argues that it renders his execution a "fundamental miscarriage of jus-
tice," thus permitting us to review certain defaulted claims on their
merits. See Schlup v. Delo, 513 U.S. 298 (1995). Such "a claim of
``actual innocence' is not itself a constitutional claim, but instead a
gateway through which a habeas petitioner [can] pass to have his oth-
erwise barred constitutional claim considered on the merits." Herrera,
506 U.S. at 404.
In order to use an actual innocence claim as a procedural gateway
to assert an otherwise defaulted claim, "the petitioner must show that
it is more likely than not that no reasonable juror would have con-
victed him in the light of the new evidence." Schlup, 513 U.S. at 327.
The Schlup Court adopted a broad definition of "new" evidence to be
considered in such cases: a petitioner must offer"new reliable evi-
dence . . . that was not presented at trial." Id. at 324; see also id. at
327-28. The Court further explained that a district court undertaking
such an inquiry is not bound by the rules of admissibility and should
make its assessment in light of all available evidence, including that
considered unavailable or excluded at trial and any evidence that
became available only after trial. Id. at 327-28. With these principles
in mind, we review Royal's claim of actual innocence to determine
whether it entitles him to consideration of his defaulted constitutional
claims on their merits.
Royal contends that the following constitutes new evidence tending
to show that he is actually innocent of the capital murder of Officer
Wallace. Primarily Royal relies on the affidavits of two forensic
experts who opine that Officer Wallace was shot through the window
of his cruiser, while seated, by someone who was standing. These
opinions are based on the downward trajectory of the fatal shot, the
presence of small cuts or "dicing" marks on Officer Wallace's face,
5
the absence of gun powder burns around the wounds, and the fact that
the cruiser's window was found shattered. Royal also points to four
.25-caliber shell casings recovered near the front of Officer Wallace's
cruiser and two .380-caliber shell casings recovered near the rear of
the car. Finally, Royal cites evidence that one of the .380-caliber shell
casings found around the scene did not come from the same gun as
the other .380 shells, raising the possibility that more than one person
fired a .380 weapon that night.
Royal contends that this new evidence reveals that he could not
have been the triggerman in this murder. Specifically, Royal argues
that he shot Officer Wallace not while the officer sat in the cruiser,
but rather after Officer Wallace opened the car door and stood up.
Also, the location of the shell casings is purportedly inconsistent with
Royal's confession, in which he claims to have shot at Officer Wal-
lace near the driver's seat rather than toward the rear of the vehicle.
Finally, the possibility of more than one .380 gun assertedly indicates
that Royal's .380 was not the murder weapon.
This new evidence, however, is also entirely consistent with
Royal's guilty plea and confession. In the course of admitting his
guilt, Royal repeatedly maintained that he alone carried a .380-caliber
weapon. Moreover, as noted by the Virginia Supreme Court, the par-
ties stipulated before the state trial court that"Royal encountered
Officer Wallace and fired two shots from a .380 caliber handgun at
Officer Wallace while Officer Wallace was seated in his police
cruiser." Royal v. Commonwealth, 458 S.E.2d 575, 576 (Va. 1995)
(emphasis added). Royal's state habeas petition likewise states:
"Royal spontaneously fired two shots from the .380 caliber handgun
at Wallace while Wallace was seated in his patrol cruiser." (Emphasis
added).
The only evidence in the record before us that supports Royal's
new assertion that he shot Officer Wallace after the officer rose from
the seat and stood outside the cruiser is an affidavit by his trial attor-
neys. In the affidavit, defense counsel do recall that Royal told them
that Officer Wallace got out of the car before Royal shot him; but this
affidavit does not recant the stipulations or Royal's state habeas asser-
tion that Officer Wallace actually "was seated" in the car, nor does it
6
even attempt to explain why those previous assertions should be
ignored.
Furthermore, while the location where the shell casings were ulti-
mately found may be inconsistent with a conclusion that Royal was
the triggerman, investigators did not remove the casings immediately
after the shooting. The record provides uncontroverted evidence that,
at a minimum, two of the other gunmen, a neighbor, and the police
responding to the incident all moved about at the scene before the
recovery of any evidence. Any one of them could have intentionally
or inadvertently moved the casings, thus minimizing the importance
of exactly where the police ultimately found the shells.
Finally, according to forensic experts, the two .380 bullets found
in Officer Wallace's head contained certain unique characteristics,
indicating that the same gun likely fired both shots. Although the
experts were unable to determine positively whether they came from
the same gun, these similarities, coupled with Royal's insistence con-
cerning the caliber of firearm used by each of the gunmen, indicate
that Royal alone fired the fatal shot in this case.
In sum, given the undisputed evidence that only Royal carried a
.380-caliber weapon and that a .380-caliber bullet inflicted the fatal
wound in Officer Wallace's skull, we cannot conclude that "it is more
likely than not that no reasonable juror would have convicted [Royal]
in the light of the new evidence." Schlup, 513 U.S. at 327. Royal has
therefore failed to demonstrate that this is one of the "extremely rare"
cases in which a defendant can show that he is actually innocent such
that his execution would constitute a fundamental miscarriage of jus-
tice entitling him to consideration of his defaulted claims on their
merits. See id. at 324, 327.
III.
Turning to the constitutional claims, we first address Royal's con-
tention that the Commonwealth failed to reveal certain exculpatory
evidence in a timely manner as required by Brady v. Maryland, 373
U.S. 83 (1963). The Virginia Supreme Court found this claim proce-
durally barred under Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974),
because Royal could have, but did not, raise the issue on direct
7
appeal. Slayton is a valid state procedural rule, independent of the
federal question and adequate to support the judgment. See Smith v.
Murray, 477 U.S. 527, 533-39 (1986). We therefore cannot review
this claim on its merits unless Royal "can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of fed-
eral law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice." Coleman v. Thompson, 501
U.S. 722, 750 (1991).
Royal argues that government interference constitutes cause in this
instance. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Shortly after Royal submitted his guilty plea, the Commonwealth
informed Royal's counsel that a state trooper had planted a .380-
caliber gun at the crime scene in order to corroborate a statement
made by one of the other gunmen. At the time, the Commonwealth
maintained that this was the only "tainted" evidence in the case. Royal
did not move to withdraw his plea in response to this revelation, nor
did he raise a Brady claim on direct appeal. Then, after Royal filed
his direct appeal with the Virginia Supreme Court, but before the
court acted, the Commonwealth sent defense counsel another letter
indicating that the trooper also planted a .25-caliber cartridge previ-
ously characterized as a "legitimate find." The Government also
declined Royal's request to reveal certain statements made by the
other gunmen involved in the shooting.
Royal contends that the Commonwealth's unexplained delays in
revealing that some evidence had been planted and its refusal to turn
over statements made by the other gunmen constitute sufficient cause
to excuse the default of his Brady claim. Royal's theory is that it was
not until he knew that the police officer planted evidence against both
him (the .380 gun) and another of the gunmen (the .25 cartridge), that
he realized the extent of the weaknesses in the Commonwealth's case,
and that it was too late for him to act at that point.
Even if Royal were able to show cause, through government inter-
ference or otherwise, he is unable to demonstrate actual prejudice
resulting from the Brady violation. Brady holds that "the suppression
by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or
to punishment." 373 U.S. at 87 (emphasis added). The suppressed evi-
8
dence, however, even if favorable to Royal, was not"material."
"[E]vidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the pro-
ceeding would have been different. A ``reasonable probability' is a
probability sufficient to undermine confidence in the outcome."
United States v. Bagley, 473 U.S. 667, 682 (1985).
The prosecution in this case had ample evidence to convict Royal
absent any reliance on the planted evidence or information gleaned
from statements of the other gunmen. Again, Royal's repeated insis-
tence that he alone used a .380-caliber weapon to shoot Officer Wal-
lace, coupled with the forensic reports indicating that both .380
bullets found in Officer Wallace's head likely came from the same
gun, and that one of them killed the officer, convince us that any other
evidence the trooper may have planted or any statements that Royal
suggests the police may have obtained from the other gunmen were
simply not material to Royal's conviction or sentence. Considering
the totality of the circumstances, we are confident in the result of the
case; we do not find a "reasonable likelihood" that admission of the
allegedly exculpatory evidence would have altered the result here. Id.
at 682-83. Thus, withholding the evidence could not have caused "ac-
tual prejudice" to Royal.
Royal also asserts that investigators somehow used the planted evi-
dence to coerce his confession. The district court correctly found this
argument defaulted under Gray v. Netherland, 518 U.S. 152 (1996),
because Royal never raised it prior to the federal habeas proceedings.
Finally, for the reasons discussed above, Royal failed to demonstrate
a fundamental miscarriage of justice based on actual innocence.
Accordingly, we cannot review Royal's Brady claim on its merits.
IV.
Royal also makes several ineffective assistance of counsel claims.
He contends that he would not have pled guilty if his trial counsel had
properly investigated and pursued a triggerman defense or obtained
adequate experts. Royal further argues that his counsel's failure to
investigate and present certain mitigating evidence at the sentencing
hearing denied him effective assistance of counsel. Before the district
court, the Commonwealth maintained that the Virginia Supreme
9
Court had denied these claims on their merits, and urged the district
court to uphold that denial. Two district judges-- one considering the
habeas petition and one considering a motion to alter or amend the
judgment -- agreed and denied the claims on their merits.
On appeal, the Commonwealth devotes most of its attention to reit-
erating its merits arguments; however, it also briefly asserts that these
claims are procedurally barred. The Commonwealth contends that a
federal habeas court cannot review these claims because the Virginia
Supreme Court dismissed them based on Anderson v. Warden, 281
S.E.2d 885 (Va. 1981). Anderson holds that when asserting an inef-
fective assistance of counsel claim to invalidate a plea, a state habeas
petitioner is prohibited (absent an adequate reason) from presenting
facts that directly controvert his prior statements concerning voluntar-
iness of the plea or adequacy of trial counsel. Id. at 888. This rule is
at its core an evidentiary rule, prohibiting a petitioner from offering
evidence impeaching the admissions he made when he pled guilty.
See id. at 887-88; see also, e.g. , Garrett v. Murray, 1991 WL 834854,
at *1-2 (Va. Cir. Ct. Mar. 14, 1991) (petitioner not allowed to admit
new facts that challenge prior statements made in course of plea, cit-
ing Anderson; state habeas court therefore finds challenge to voluntar-
iness of plea "without merit"). The Commonwealth asserts that
Anderson is also a valid procedural bar, constituting an adequate and
independent state ground for the judgment.
However, "[t]he rule that a federal habeas court will not consider
a claim that was rejected by a state court on an adequate and indepen-
dent state-law basis . . . is not a jurisdictional one." Yeatts v.
Angelone, 166 F.3d 255, 260-61 (4th Cir. 1999) (citing Trest v. Cain,
522 U.S. 87, 118 S. Ct. 478, 480 (1997)). Procedural default must be
pled as an affirmative defense and the Commonwealth is "obligated
to raise procedural default as a defense, or [it will] lose the right to
assert the defense thereafter." Gray, 518 U.S. at 165-66; see also
Trest, 118 S. Ct. at 480; Fisher v. Texas , 169 F.3d 295, 300-02 (5th
Cir. 1999). Because in the district court the Commonwealth failed to
raise the issue of Royal's asserted Anderson default with respect to
these claims (indeed it affirmatively asserted that the claims had been
decided on the merits), it has waived its right to pursue the matter on
appeal.
10
Nonetheless, even if a state has waived its right to raise the issue,
we have held that a federal court, in its discretion, may hold a claim
procedurally defaulted. See Yeatts, 166 F.3d at 261; see also Trest,
118 S. Ct. at 480 (leaving open question of whether federal court can
consider a procedural default sua sponte). In determining whether to
exercise this discretion, Yeatts instructs us to consider whether a
state's waiver was intentional or inadvertent, "whether justice requires
that the habeas petitioner be afforded with notice and a reasonable
opportunity to present briefing and argument opposing dismissal,"
and whether "interests of comity and judicial efficiency" support this
exercise of discretion. Yeatts, 166 F.3d at 262; see also Fisher, 169
F.3d at 300-02.
With these considerations in mind, we decline to exercise our dis-
cretion to find these claims procedurally defaulted. See Fisher, 169
F.3d at 300-02. First, unlike Yeatts, it appears that in the district court
the Commonwealth intentionally waived this claim. Cf. 166 F.3d at
261-62 (in Yeatts Commonwealth asserted on appeal that it believed
that it had made the argument to the district court). Moreover, again
unlike Yeatts, id., the parties here have not "thoroughly briefed and
argued" this issue (each side devotes only a single conclusory para-
graph to it, see Brief of Appellee at 20; Reply Brief at 17), and we
believe that in these circumstances justice is better served by not
deciding these claims on the basis of procedural default. Most impor-
tantly, no comity or judicial efficiency concerns counsel us to decide
these claims on procedural default grounds rather than on the basis of
their evident lack of merit because here, unlike in Yeatts, the proce-
dural default is not "obvious," 166 F.3d at 262; indeed, the scope of
the Anderson rule is far from clear.
Anderson may simply prohibit collateral challenges to a guilty plea,
including claims of ineffective assistance of counsel that attack the
validity of the plea; such a rule would appear to constitute an ade-
quate and independent state procedural rule like Slayton, and would
therefore generally bar us from considering such claims on their mer-
its. See Coleman, 501 U.S. at 750. Less than a year ago, the Common-
wealth suggested that this was the scope of the Anderson rule. In that
case the Virginia Supreme Court applied Anderson in precisely this
manner, finding a petitioner's claims pertaining to counsel's conduct
up to and including the court's acceptance of his guilty plea procedur-
11
ally barred by Anderson, but reaching the merits of challenges to
counsel's conduct at sentencing and on appeal. See Dubois v. Greene,
149 F.3d 1168, 1998 WL 276282, at *3-5 (4th Cir. 1998) (unpub-
lished). On this understanding of Anderson, we held in an unreported
opinion that the Anderson rule constituted a valid procedural bar to
our consideration of the petitioner's challenges on their merits. Id.
In the case at hand, however, the Commonwealth conclusorily
maintains that Anderson incorporates a broader procedural bar, pre-
venting a petitioner who has pled guilty from asserting any collateral
challenge based on ineffective assistance of trial counsel, even a
claim pertaining to sentencing. The Virginia Supreme Court here
applied Anderson in this more expansive manner, finding that it
barred collateral consideration not just of Royal's ineffective assis-
tance claims in connection with the plea but also of the claim relating
to his sentence. If the Anderson rule encompasses ineffective assis-
tance of counsel claims that do not challenge the plea but rather only
pertain to sentencing, it may well not constitute an adequate and inde-
pendent state procedural default rule because in Virginia such claims
-- unlike challenges to the plea itself -- cannot be raised until the
state habeas proceeding. Compare Walker v. Mitchell, 299 S.E.2d
698, 699-700 (Va. 1983) (ineffective assistance of counsel claims
cannot be raised prior to state habeas action), with Hall v.
Commonwealth, 515 S.E.2d 343, 346-47 (Va. Ct. App. 1999) (defen-
dant can challenge the voluntariness of a plea prior to state habeas --
e.g., in a motion to withdraw the plea -- even if the basis of the chal-
lenge is inadequate advice of counsel concerning whether or not to
plead). In any event, we are uncertain of the true scope of the
Anderson rule and, consequently, whether it can properly be consid-
ered an adequate and independent state procedural rule. See Johnson
v. Mississippi, 486 U.S. 578, 587 (1988) (rule must be applied regu-
larly and consistently by the state court in order to qualify as an "ade-
quate" state ground); see also Plath v. Moore , 130 F.3d 595, 602 (4th
Cir. 1997).
In sum, none of the factors that led us to dismiss the habeas claim
in Yeatts on the basis of procedural default supports such a course
here. Rather, all of those factors weigh in favor of resolving these
patently meritless claims on the substantive grounds to which we now
turn.
12
In order to prevail on a claim of ineffective assistance of counsel
in connection with a guilty plea, a petitioner must prove that his coun-
sel's performance fell below the well-established standard outlined in
Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart,
474 U.S. 52, 57-59 (1985). Strickland requires proof of both ineffec-
tive representation and actual prejudice -- that is, proof that counsel's
performance fell below an objective standard of reasonableness and
that "there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687-91, 694. In order to satisfy the prejudice
requirement in the context of a challenge to a guilty plea, the defen-
dant must show "that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59.
Royal is unable to meet either prong of the Strickland standard. In
making strategic decisions concerning what to investigate or how to
proceed at trial, a lawyer may properly rely on the general truthful-
ness of his client as well as the defendant's particular statements. See
Barnes v. Thompson, 58 F.3d 971, 979 (4th Cir. 1995). Given Royal's
repeated assertion that he killed Officer Wallace and that only he car-
ried a .380-caliber weapon on the night of the murder, together with
the forensic evidence showing the fatal bullet to be consistent with a
.380 slug, Royal's first two ineffectiveness claims must fail. We sim-
ply cannot conclude, in the face of such strong evidence, that the con-
duct of Royal's counsel fell outside the wide range of reasonableness
afforded attorneys under the Strickland standard when they chose not
to pursue a triggerman defense or to obtain independent experts.
Similarly, we have recognized that reliance on evidence of psycho-
logical impairments or personal history as mitigating factors in sen-
tencing can be a "double-edged sword." Wright v. Angelone, 151 F.3d
151, 162 (4th Cir. 1998); see also Barnes, 58 F.3d at 980. Thus we
must also reject Royal's final ineffectiveness claim; Royal's counsel
did not fall below an objective standard of reasonableness in failing
to further develop or argue mitigating factors at sentencing.
Furthermore, Royal has not demonstrated prejudice with respect to
any of these claims. He has not shown that but for the assertedly inef-
fective assistance, a reasonable defendant would have insisted on pro-
13
ceeding to trial. See Hill, 474 U.S. at 59. Given the Commonwealth's
powerful evidence against Royal -- including his recorded confession
and corroborating forensic and ballistic reports-- and the circum-
stances of the crime, we believe that, even absent counsel's asserted
errors, it is likely that a jury would have convicted Royal and the
judge would have given him the maximum sentence. We cannot con-
clude that a reasonable defendant in these circumstances would not
have pled guilty. Nor has Royal demonstrated a "reasonable probabil-
ity" that his sentence would have been more lenient had counsel
advanced additional mitigating evidence on his behalf. Strickland,
466 U.S. at 694. Thus, we find all of Royal's ineffective assistance
claims without merit.
V.
Royal also argues that the district court erred in denying him dis-
covery under Habeas Rule 6 concerning his Brady claims. In Bracy
v. Gramley, 520 U.S. 899 (1997), upon which Royal relies, the
Supreme Court explained that a petitioner demonstrates "good cause"
for habeas discovery "where specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is entitled to relief." Id. at
908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). Royal
asserts that he has submitted such specific allegations here. Because,
as we explained above, Royal procedurally defaulted his Brady claims
and has not shown cause and prejudice or fundamental miscarriage of
justice permitting its consideration on federal habeas, we cannot
agree. The district court therefore did not abuse its discretion in deny-
ing the discovery request. See Quesinberry v. Taylor, 162 F.3d 273,
279 (4th Cir. 1998).
VI.
Finally, Royal contends that the district court erred in failing to
allow him a full year within which to file his federal habeas petition.
See 28 U.S.C.A. § 2244(d)(1); Brown v. Angelone, 150 F.3d 370 (4th
Cir. 1998). Any error was harmless. See Brecht v. Abrahamson, 507
U.S. 619 (1993); Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th
Cir. 1996) (Brecht's harmless error standard applies in federal habeas
cases).
14
Assisted by counsel, Royal filed a federal habeas petition within
the time period set by the district court. Moreover, after an initial
amendment, which the district court allowed, Royal made no further
attempt to supplement his petition despite the passage of nearly
another year before the district court denied the petition; nor does
Royal now assert any new claim that he would like to add to the peti-
tion. He has shown no "actual prejudice" stemming from the abbrevi-
ated deadline. Brecht, 507 U.S. at 637; see also Williams v. Taylor,
___ F.3d ___, No. 99-1, Slip op. at 22-23 (4th Cir. Aug. 2, 1999).
Thus, Royal has not demonstrated that the district court's error
exerted a "substantial and injurious effect or influence" on the pro-
ceedings. Brecht, 507 U.S. at 637.
VII.
For the foregoing reasons, the district court's denial of habeas
relief is
AFFIRMED.
15