Walker v. True ( 2003 )


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  • Remanded by S. Ct. order filed 12/19/03.
    UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    4444444444444444444444444444444444444444444444447
    DARICK DEMORRIS WALKER,
    Petitioner-Appellant,
    v.                                                      No. 02-22
    PAGE TRUE, Warden, Sussex I State
    Prison,
    Respondent-Appellee.
    4444444444444444444444444444444444444444444444448
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Claude M. Hilton, Chief District Judge.
    (CA-01-1196-A)
    Argued: January 21, 2003
    Decided: May 6, 2003
    Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
    ____________________________________________________________
    Dismissed in part and affirmed in part by unpublished per curiam
    opinion.
    ____________________________________________________________
    COUNSEL
    ARGUED: Michele Jill Brace, Washington, D.C., for Appellant.
    Robert Quentin Harris, Assistant Attorney General, OFFICE OF THE
    ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
    BRIEF: Barbara L. Hartung, Richmond, Virginia; Lara A. Englund,
    Peter B. Rutledge, Samuel Broderick-Sokol, Anne Harkavy, Eric J.
    Hougen, Mason Kalfus, WILMER, CUTLER & PICKERING, Wash-
    ington, D.C.; David P. Donovan, WILMER, CUTLER & PICKER-
    ING, Tysons Corner, Virginia, for Appellant. Jerry W. Kilgore,
    Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
    ERAL, Richmond, Virginia, for Appellee.
    ____________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    ____________________________________________________________
    OPINION
    PER CURIAM:
    Petitioner Darick Demorris Walker was convicted by a Virginia
    state court jury of capital murder for the killings of Stanley Beale and
    Clarence Threat, use of firearm in the commission of a felony, and
    two counts of burglary. He was sentenced to death on the capital mur-
    der count and to prison terms on the other counts. The Supreme Court
    of Virginia affirmed Walker's conviction and death sentence on direct
    appeal and denied Walker's petition for state habeas relief. The dis-
    trict court dismissed Walker's federal habeas petition and declined to
    grant a Certificate of Appealability (COA).
    Walker now seeks a COA to bring an appeal of the district court's
    dismissal. Specifically, he asserts that he has made the required sub-
    stantial showing that his Sixth Amendment right to counsel was vio-
    lated at the guilt phase of his trial when his counsel failed to challenge
    his single trial for two murders, that his due process rights were vio-
    lated when the Commonwealth failed to timely disclose Brady materi-
    als, and that his Sixth Amendment rights were violated at the
    sentencing phase of his trial when his counsel failed to investigate and
    present compelling mitigating evidence. Because reasonable jurists
    could debate the district court's assessment of the first two of these
    claims (the right to counsel at the guilt phase of trial claim and the
    Brady claim) we grant a COA as to these claims; however, upon
    review of their merits, we affirm the district court's dismissal.
    Because reasonable jurists could not debate the district court's assess-
    2
    ment of the right to counsel at the sentencing phase of his trial claim,
    we deny a COA as to this claim and dismiss.
    I.
    Stanley Beale lived with Catherine Taylor and their children,
    Monique, Bianca, and Sidney, in the University Terrace Apartments.1
    On November 22, 1996, Taylor was in the bedroom with Sidney, an
    infant, when she heard "a boom like noise" coming from the living
    room. As she entered the living room to investigate, she saw a man,
    whom she identified as Walker, kick in the locked front door. Walker
    was holding a gun and began yelling, "Where is he?" Walker then
    asked Beale, who was standing in the doorway of the kitchen, "What
    you keep coming up to my door, what you look for me for?" Beale
    responded that he did not know Walker and did not know where he
    lived. Bianca, who was 13 years old at the time, began to shout at
    Walker, telling him that her father did not know him. When Walker
    began shooting at Beale, Taylor took Bianca and Monique into the
    bathroom to hide. Beale was shot three times and died. Bianca testi-
    fied that she knew Walker as "Todd" and that she identified Walker
    in a photospread as the person who killed her father.
    On the night of Beale's murder, Tameria Patterson, a fourteen-
    year-old girl, was visiting a friend who lived in the University Terrace
    Apartments. Patterson testified that she saw a man she knew as
    "Todd" enter her friend's apartment that night and say, "I shot him."
    Patterson identified Walker in a photospread as the person who had
    entered the apartment and made the statement.
    Approximately seven months later, on the night of June 18, 1997,
    Clarence Threat and Andrea Noble were sleeping in their bedroom.
    They were awakened by a "pop" coming from the screen door, which
    was followed by a knock at the door. Noble went to the door and
    looked outside through a small window in the door, but did not see
    anyone. Twice more she heard someone knocking but did not see any-
    ____________________________________________________________
    1
    These facts are derived from the statement of facts in the Supreme
    Court of Virginia's published opinion affirming Walker's conviction on
    direct appeal. See Walker v. Commonwealth, 
    515 S.E.2d 565
    , 568-69
    (Va. 1999).
    3
    one when she looked out the window. Sometime after the third knock,
    the door was "kicked open." Noble went to the living room to find a
    person she knew as "Paul" standing there with a gun. "Paul" pointed
    the gun at Noble, who backed into the bedroom. When they reached
    the bedroom, "Paul" hit Noble with the back of the gun and then shot
    Threat in the leg. "Paul" and Threat "exchanged words" and then
    "Paul" shot Threat six more times. Threat died from a gunshot wound
    to the chest. "Paul" warned Noble that if she told anyone "he would
    come back and kill [her] and [her] kids." At trial, Noble identified
    Walker as the person she knew as "Paul."
    Walker was indicted on one count of capital murder for the killings
    of Beale and Threat within a three-year period in violation of 
    Va. Code Ann. § 18.2-31.1
    (8) (Michie 1996), on four counts of the use of
    a firearm in the commission of a felony in violation of 
    Va. Code Ann. § 18.2-53.1
     (Michie 1996), and on two counts of burglary in violation
    of 
    Va. Code Ann. § 18.2-90
     (Michie 1996). On August 31 and Sep-
    tember 1, 1998, Walker was tried before a jury in the Circuit Court
    for the City of Richmond and found guilty of all charges. He was sen-
    tenced to death for the capital murder conviction, life imprisonment
    for each of the burglaries, and a total of 18 years imprisonment for
    the firearms offenses.
    On June 11, 1999, the Supreme Court of Virginia affirmed Walk-
    er's conviction and death sentence. Walker v. Commonwealth, 
    515 S.E.2d 565
     (Va. 1999). The Supreme Court of the United States
    denied Walker's petition for a writ of certiorari on January 18, 2000.
    Walker v. Virginia, 
    528 U.S. 1125
     (2000). On March 23, 2001, the
    Supreme Court of Virginia dismissed Walker's state petition for a
    writ of habeas corpus. The Supreme Court of the United States denied
    Walker's petition for a writ of certiorari on October 29, 2001. Walker
    v. True, 
    534 U.S. 1003
     (2001).
    On February 1, 2002, Walker filed a petition for a writ of habeas
    corpus in the United States District Court for the Eastern District of
    Virginia. The district court dismissed Walker's petition on July 26,
    2002. On September 4, 2002, the district court denied Walker's
    Motion to Alter or Amend Judgment and declined to grant a Certifi-
    cate of Appealability (COA). Walker now seeks to appeal.
    4
    II.
    To appeal the denial of habeas relief in the district court, a prisoner
    must first obtain a COA. See 
    28 U.S.C.A. § 2253
    (c)(1) (West Supp.
    2002). The first opportunity to obtain a COA is in the district court.
    When "an applicant files a notice of appeal, the district judge who
    rendered the judgment must either issue a certificate of appealability
    or state why a certificate should not issue." Fed. R. App. Pro.
    22(b)(1). In the present case, the district court denied Walker a COA.
    Because the requirement for a COA is jurisdictional, we may not con-
    sider the merits of Walker's claims unless Walker has made the
    threshold showing required to obtain a COA. Miller-El v. Cockrell,
    537 U.S. __, 
    123 S. Ct. 1029
    , 1039 (2003) ("This threshold inquiry
    does not require full consideration of the factual or legal bases
    adduced in support of the claims. In fact, the statute forbids it."). Thus
    our COA determination requires an overview of Walker's claims and
    a general assessment of their merits.2
    To obtain a COA, a petitioner must make a "substantial showing
    of the denial of a constitutional right." 
    28 U.S.C.A. § 2253
    (c)(2).
    "Under the controlling standard, a petitioner must ``sho[w] that rea-
    sonable jurists could debate whether (or, for that matter, agree that)
    the petition should have been resolved in a different manner or that
    the issues presented were "adequate to deserve encouragement to pro-
    ceed further."'" Miller-El, 
    123 S. Ct. at 1039
     (quoting Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000), which in turn was quoting Bare-
    foot v. Estelle, 
    463 U.S. 880
    , 893 n.4 (1983)). "A prisoner seeking a
    ____________________________________________________________
    2
    We note that our consideration of Walker's COA application after the
    issues of this case have already been fully briefed and argued is proce-
    durally misaligned with the appropriate standard for COA applications.
    See Miller-El v. Cockrell, 
    123 S. Ct. 1029
    , 1040 (2003); Swisher v. True,
    __ F.3d __, No. 02-10, slip op. at 8 (4th Cir. March 28, 2003). Nonethe-
    less, because we address Walker's request under the standards set forth
    in Slack and Miller-El, our COA determination is not based on a full con-
    sideration of Walker's claims. Rather, we must grant a COA if, after a
    threshold inquiry, reasonable jurists would find the district court's
    assessment of Walker's claims debatable or wrong, "even though every
    jurist of reason might agree, after the COA has been granted and the case
    has received full consideration, that petitioner will not prevail." Miller-
    El, 
    123 S. Ct. at 1040
    .
    5
    COA must prove something more than the absence of frivolity or the
    existence of mere good faith on his or her part. We do not require
    petitioner to prove, before the issuance of a COA, that some jurists
    would grant the petition for habeas corpus." 
    Id. at 1040
     (internal quo-
    tation marks and citation omitted). "We look to the District Court's
    application of AEDPA to petitioner's constitutional claims and ask
    whether that resolution was debatable amongst jurists of reason." 
    Id. at 1039
    . "Where a district court has rejected [a petitioner's] constitu-
    tional claims on the merits, . . . [t]he petitioner must demonstrate that
    reasonable jurists would find the district court's assessment of the
    constitutional claims debatable or wrong" to obtain a COA. Slack,
    
    529 U.S. at 484
    . Further, "[w]hen the district court denies a habeas
    petition on procedural grounds without reaching the prisoner's under-
    lying constitutional claim, a COA should issue when the prisoner
    shows, at least, that jurists of reason would find it debatable whether
    the petition states a valid claim of the denial of a constitutional right
    and that jurists of reason would find it debatable whether the district
    court was correct in its procedural ruling." 
    Id.
    In his application for a COA, Walker raises three issues that were
    addressed by the district court. First, Walker argues that the state
    court's conclusion that his trial counsel did not render ineffective
    assistance by failing to challenge his single trial for two murders was
    an objectively unreasonable application of federal law. He argues that
    the district court used an erroneous legal standard when it denied this
    claim. A COA is issued on this claim because Judge Gregory finds
    that reasonable jurists could debate whether the district court should
    have resolved this claim differently.3 We address the merits of the
    claim below.
    Second, Walker asserts that the Commonwealth failed to disclose
    exculpatory materials in violation of Brady v. Maryland, 
    373 U.S. 83
    (1963). Walker challenges the state court's decision that a portion of
    his Brady claim is procedurally defaulted and that the remainder is
    without merit. He argues that the district court erred by concluding
    that he had not shown cause for the default and by concluding that the
    ____________________________________________________________
    3
    Under 4th Cir. R. 22(a), "if any judge of [a] panel is of the opinion
    that the applicant has made a substantial showing of the denial of a con-
    stitutional right, the certificate will issue."
    6
    state court's resolution of the remainder of his Brady claim was not
    an unreasonable application of federal law. A COA is also issued on
    this claim because Judge Gregory finds that reasonable jurists could
    debate whether the district court should have resolved this claim dif-
    ferently. We address the merits of the claim below.
    Third, Walker argues that the state court's conclusion that his trial
    counsel did not render ineffective assistance during sentencing by
    failing to investigate and present compelling mitigating evidence was
    an objectively unreasonable application of federal law. Specifically,
    Walker claims that his trial counsel was ineffective because he failed
    to timely discover and effectively present school records and mental
    health history, failed to investigate and provide records to Dr. J.
    Randy Thomas of the Medical College of Virginia's Forensic Evalua-
    tion Program, Walker's court-appointed mental health expert, and
    failed to discover Walker's brain dysfunction. The state court, apply-
    ing the two-part test for evaluating claims of ineffective assistance of
    counsel, see Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984)
    ("[T]he defendant must show that counsel's performance was defi-
    cient . . . [and] that the deficient performance prejudiced the
    defense."), concluded that Walker's claim failed to satisfy the perfor-
    mance prong. The state court determined that counsel's delay in
    acquiring Walker's school records resulted from Walker's and his
    mother's recalcitrance, and Walker presented no evidence to the dis-
    trict court to rebut this conclusion. The state court also rejected Walk-
    er's claim that his counsel was ineffective by failing to further
    investigate Walker's organic brain damage and concluded that coun-
    sel's decision to use Walker's school records to demonstrate that
    Walker would respond well in a structured environment, rather than
    arguing that Walker suffered from an organic mental deficiency, was
    a reasonable trial strategy. The district court determined that the state
    court's decision was not an unreasonable application of Strickland
    because, as there is only one reference to possible organic brain dam-
    age in Walker's school records, Walker's counsel was justified in pur-
    suing and preparing an alternative theory better supported by the
    evidence. Moreover, both the state court and district court determined
    that counsel's choice not to forward Walker's school records to the
    court-appointed mental health expert was reasonable because after he
    had diagnosed Walker as a sociopath, the mental health expert was
    removed from the defense witness list. Our threshold review of Walk-
    7
    er's claim of ineffective assistance of counsel at the sentencing phase
    of his trial reveals that reasonable jurists could not debate the district
    court's resolution of this claim. We therefore deny a COA on this
    claim. We address below the two claims on which we have granted
    a COA.
    III.
    Walker was convicted of "[t]he willful, deliberate, and premedi-
    tated killing of more than one person within a three-year period." 
    Va. Code Ann. § 18.2-31.1
    (8). He was tried in a single trial before a sin-
    gle jury. Walker asserts that his conviction is invalid because his trial
    counsel rendered ineffective assistance by failing to challenge the
    constitutionality of § 18.2-31.1(8), move for separate trials on the two
    murders, or request a jury instruction that evidence of one murder
    could not be considered in determining Walker's guilt in the other.
    As stated above, to show ineffective assistance of counsel "the
    defendant must show that counsel's performance was deficient . . .
    [and] that the deficient performance prejudiced the defense." Strick-
    land, 
    466 U.S. at 687
    . The state court held that Walker's claim of
    ineffective assistance of counsel in the guilt phase satisfied neither the
    performance prong nor the prejudice prong of the Strickland test.
    Because the state court adjudicated this claim on the merits, we may
    not grant habeas relief unless the state court's adjudication "resulted
    in a decision that was contrary to, or involved an unreasonable appli-
    cation of, clearly established Federal law, as determined by the
    Supreme Court of the United States." 
    28 U.S.C.A. § 2254
    (d)(1) (West
    Supp. 2002). Walker asserts that he is entitled to federal habeas relief
    because the state court's decision was an unreasonable application of
    Strickland. (Appellant's Br. at 14.) "``[U]nder the "unreasonable appli-
    cation" clause, a federal habeas court may grant the writ if the state
    court identifies the correct governing legal principle from this Court's
    decision but unreasonably applies that principle to the facts of the
    prisoner's case.'" Lockyer v. Andrade, 
    123 S. Ct. 1166
    , 1174 (2003)
    (citing Williams v. Taylor, 
    529 U.S. 362
    , 413 (2000)); see also Bell
    v. Cone, 
    535 U.S. 685
    , 
    122 S.Ct. 1843
    , 1850 (2002). "The ``unreason-
    able application' clause requires the state court decision to be more
    than incorrect or erroneous." Lockyer, 
    123 S. Ct. at 1174
    ; see also
    Williams, 
    529 U.S. at 411
     ("[A] federal habeas court may not issue
    8
    the writ [under the unreasonable application clause] simply because
    that court concludes in its independent judgment that the relevant
    state-court decision applied clearly established federal law errone-
    ously or incorrectly."). Instead, "[t]he state court's application of
    clearly established federal law must be objectively unreasonable."
    Lockyer, 123 S. Ct. at 1174 (citation omitted). Walker, therefore,
    "must do more than show that he would have satisfied Strickland's
    test if his claim were being analyzed in the first instance." Bell, 
    122 S.Ct. at 1852
    . Rather, he must demonstrate that the state court applied
    Strickland in "an objectively unreasonable manner." 
    Id.
     This he can-
    not do. Because, as discussed below, the state court's conclusion that
    Walker could not satisfy the prejudice prong was not unreasonable,
    we need not address the state court's determination under the perfor-
    mance prong of Strickland.
    To establish prejudice, a defendant "must show that there is a rea-
    sonable probability that, but for counsel's unprofessional errors, the
    result of the proceeding would have been different." Strickland, 
    466 U.S. at 694
    . "A reasonable probability is a probability sufficient to
    undermine confidence in the outcome." 
    Id.
     It was not objectively
    unreasonable for the state court to conclude that there was no reason-
    able probability that a challenge to the constitutionality of § 18.2-
    31.1(8) would have produced a different result.
    In Commonwealth v. Smith, 
    557 S.E.2d 223
    , 226 (Va. 2002), the
    Supreme Court of Virginia rejected a claim that a single trial under
    § 18.2-31.1(8) constitutes a misjoinder of different offenses. The
    court explained that murders charged under § 18.2-31.1(8) are con-
    nected by the "fact that the capital murder and the predicate murder
    or murders occur within a three-year period." Id. at 226. This "con-
    nection [is] similar to the link the General Assembly has established
    between capital murders and predicate offenses in other subsections
    of Code § 18.2-31." Id. For example, 
    Va. Code Ann. § 18.2-31
    (5)
    (Michie 1996) provides that "[t]he willful, deliberate, and premedi-
    tated killing of any person in the commission of, or subsequent to,
    rape or attempted rape" constitutes a capital murder offense. The
    Supreme Court of Virginia thus concluded in Smith that "the Com-
    monwealth may join two or more counts or charges of murder in a
    prosecution under Code § 18.2-31.1(8) despite the prejudice that may
    result thereafter . . . [if] the murders shall have occurred within a three
    9
    year period." Id. at 227. Because the Supreme Court has never
    addressed whether it is a misjoinder to have a single trial for a capital
    offense involving the commission of two murders within a set period
    of time, the Smith decision does not contradict clearly established fed-
    eral law.4 Walker, therefore, has failed to show that there is a reason-
    able probability that his challenge to § 18.2-31.1(8) would have been
    successful.
    It was also not objectively unreasonable for the state court to con-
    clude that there was no reasonable probability that moving for sepa-
    rate trials or requesting an additional jury instruction would have
    produced a different result. Even assuming that the trial court would
    have granted either motion, Walker has failed to establish prejudice.
    The risk created by joinder is that a jury may confuse the evidence
    and return a conviction against a defendant on a charge on which it
    would have acquitted if the evidence had been properly segregated.
    See Zafiro v. United States, 
    506 U.S. 534
    , 539 (1993) (explaining that
    the risk of joining defendants is that the jury will consider evidence
    against a defendant that would not be admissible if a defendant were
    tried alone). To show prejudice, Walker must demonstrate that there
    is a reasonable probability that the jury confused evidence of the
    predicate murder and evidence of the capital murder. It is not enough
    to show that he might have had a better chance for acquittal if the
    guilt phase of his trial had been bifurcated. See 
    id. at 540
     ("[I]t is well
    settled that defendants are not entitled to severance merely because
    they may have a better chance of acquittal in separate trials."). Of
    course, some of the risk posed by joinder can be cured with proper
    instructions to the jury. 
    Id.
     In this case, the risk of the jury confusing
    the evidence was minimal. As the district court noted, "the joint trial
    was not unduly lengthy or complex and the evidence with respect to
    each murder was distinct and easily compartmentalized." (J.A. at
    ____________________________________________________________
    4
    Under the precedent of the Supreme Court, a misjoinder "rise[s] to the
    level of a constitutional violation only if it results in prejudice so great
    as to deny a defendant his Fifth Amendment right to a fair trial." United
    States v. Lane, 
    474 U.S. 438
    , 446 n.8 (1986) ("Improper joinder does not,
    in itself, violate the Constitution."). As described in the text, Walker has
    failed to show that the single trial caused him any prejudice, and thus
    even if his single trial under § 18.2-31.1(8) constituted a misjoinder, he
    could not show that it was a violation of the Constitution.
    10
    965.) The transcript shows that in presenting its case against Walker,
    the Commonwealth kept its evidence regarding each murder separate.
    First it presented its case regarding the Beale murder and then put on
    its evidence about the Threat murder. Paul Tuttle, the only witness to
    testify about both murders, testified first about the Beale murder, was
    excused, and then recalled during the Threat portion of the trial.
    Moreover, the jury instructions made it clear that each murder was
    a separate element that had to be proved beyond a reasonable doubt.
    If you find from the evidence that the Commonwealth has
    proved beyond a reasonable doubt each of the above ele-
    ments of the offense as charged, then you shall find the
    defendant guilty of capital murder . . . . If you find from the
    evidence that the Commonwealth has proved beyond a rea-
    sonable doubt that the defendant killed Clarence Threat, and
    that the killing was willful, deliberate and premeditated, but
    fail to find that the defendant killed Stanley Roger Beale,
    then you shall find the defendant guilty of first degree mur-
    der . . . . If you find from the evidence that the Common-
    wealth has proved beyond a reasonable doubt that the
    defendant killed Stanley Roger Beale, and that the killing
    was willful, deliberate and premeditated, but fail to find that
    the defendant killed Clarence Threat, then you shall find the
    defendant guilty of first degree murder . . . . Ladies and gen-
    tleman of the jury, it's simple. If you believe he killed both
    in a three year period that would meet the elements of capi-
    tal murder. But, you might believe he killed one and not the
    other and that would be first degree murder. That would be
    a finding of not guilty as to one he is not guilty of.
    (J.A. at 157-58.) Because the evidence for each murder was easily
    distinguishable and the jury was instructed to consider each murder
    separately, it was reasonable for the state court to conclude that under
    Strickland, Walker suffered no prejudice from his counsel's failure to
    move for separate trials or request an additional jury instruction.
    Accordingly, the state court's denial of relief on Walker's claim of
    ineffective assistance of counsel at the guilt phase was not an unrea-
    sonable application of federal law.
    11
    IV.
    Walker argues that the Commonwealth failed to disclose exculpa-
    tory evidence that would have impeached the trial testimony of three
    of its key witnesses: Bianca Taylor, Tameria Patterson, and Chris
    Miller. The state court concluded that Walker's Brady claim regard-
    ing Bianca was procedurally barred and found Walker's Brady claims
    regarding Patterson and Miller without merit. (J.A. at 348-49.) We
    will discuss the state court's application of the procedural bar and
    determination on the merits in turn.
    A.
    Bianca testified at trial that she saw the shooter enter the house,
    yell at her father, and then shoot her father. Walker contends that the
    Commonwealth suppressed the following evidence that indicates that
    Bianca did not see the shooter: the Supplementary Offense Report of
    Officer Ernst (J.A. at 537), Supplementary Offense Report of Detec-
    tive Mullins (J.A. at 489), handwritten notes of Detective Mullins
    (J.A. at 485), and statements made by Bianca and Catherine Taylor
    to Detective James Hickman (J.A. at 543A). The state court, applying
    the rule in Slayton v. Parrigan, 
    205 S.E.2d 680
     (Va. 1974), concluded
    that because this issue "could have been raised and adjudicated at
    [Walker's] trial and upon his appeal," Walker "ha[s] no standing to
    attack his final judgment of conviction by habeas corpus." 205 S.E.2d
    at 682. The district court refused to address the merits of this claim,
    concluding that this state procedural rule was independent and ade-
    quate and that Walker had failed to show cause and prejudice.
    A federal court conducting habeas review is "precluded from
    reviewing the merits of a claim that was procedurally defaulted under
    an ``independent and adequate' state procedural rule, ``unless the
    [applicant] can demonstrate cause for the default and actual prejudice
    as a result of the alleged violation of federal law, or demonstrate that
    failure to consider the claims will result in a fundamental miscarriage
    of justice.'" Fisher v. Lee, 
    215 F.3d 438
    , 455 (4th Cir. 2000) (alter-
    ation in original) (quoting Coleman v. Thompson, 
    501 U.S. 722
    , 750
    (1991)). A state rule is "adequate" if it is regularly or consistently
    applied by the state court, see Johnson v. Mississippi, 
    486 U.S. 578
    ,
    587 (1988), and "independent" if it does not "depend[ ] on a federal
    12
    constitutional ruling," Ake v. Oklahoma, 
    470 U.S. 68
    , 75 (1985)
    (alteration in original). "We have repeatedly recognized that the pro-
    cedural default rule set forth in Slayton constitutes an adequate and
    independent state law ground for decision." Fisher v. Angelone, 
    163 F.3d 835
    , 844 (4th Cir. 1998) (internal quotation marks omitted) (cit-
    ing cases). Walker does not dispute that the state court applied an ade-
    quate and independent procedural rule but rather asserts that he can
    demonstrate cause and prejudice to excuse the default.5
    "Cause excuses the failure to raise a claim during a state proceed-
    ing if ``the factual or legal basis for [the] claim was not reasonably
    available.'" Fisher, 
    163 F.3d 835
    , 845 (alteration in original) (quoting
    McCleskey v. Zant, 
    499 U.S. 467
    , 494 (1991)). Walker contends that
    the Commonwealth's interference, specifically its suppression of the
    documents listed above until eight months after direct appeal, pre-
    vented his counsel from raising the Brady claim regarding Bianca
    prior to state habeas. He correctly points out that "a defendant cannot
    conduct a ``reasonable and diligent investigation' [as] mandated by
    McCleskey to preclude a finding of procedural default when the evi-
    dence is in the hands of the State." Strickler v. Greene, 
    527 U.S. 263
    ,
    287-88 (1999). If Walker, however, was aware or should have been
    aware that documents had been suppressed when he appealed his con-
    viction, suppression of the documents would not constitute cause for
    failure to bring a Brady claim. 
    Id. at 287
     (holding that suppression of
    documents can constitute cause and distinguishing cases in which "the
    petitioner was previously aware of the factual basis for his claim but
    failed to raise it earlier").
    In applying the Slayton procedural bar, the state court found that
    at the time Walker filed for direct review, Walker's counsel was
    aware of the factual basis of Walker's Brady claim, specifically, the
    Commonwealth's suppression of the evidence that allegedly could
    have impeached Bianca's testimony. This factual finding is presumed
    to be correct and petitioner has the burden of rebutting the presump-
    tion of correctness by clear and convincing evidence. See 
    28 U.S.C. § 2254
    (e)(1). Walker fails to satisfy this burden. Indeed, as Walker
    admitted in the first habeas petition he presented to the district court,
    ____________________________________________________________
    5
    Walker also does not argue that a fundamental miscarriage of justice
    will occur if we do not consider his claim.
    13
    shortly before trial the defense received a Presentence Report refer-
    encing two undisclosed police reports containing the same informa-
    tion as the documents listed above. This Presentence Report, by
    referencing these undisclosed documents, evidenced the Common-
    wealth's suppression of the alleged Brady material.6 The factual basis
    for the assertion of Walker's Brady claim, therefore, was available not
    only before direct appeal, but before sentencing. Because Walker has
    failed to rebut the state court's finding that he could have brought his
    claim on direct review, he cannot demonstrate that the alleged with-
    holding by the Commonwealth constitutes cause to excuse his failure
    to raise the claim.7
    B.
    We now turn to the remainder of Walker's Brady claim regarding
    the Commonwealth's alleged withholding of evidence that would
    have impeached Patterson and Miller. Patterson testified at trial that
    someone she knew as "Todd" entered the residence of Karen and
    Charles Randolph and Jennifer Stewart, an apartment at 1309 W. Gra-
    ham Road, on the night of Beale's murder and exclaimed, "I shot
    him." (J.A. at 50-52.) Miller testified that he observed an unidentified
    person leave Beale's apartment after the shooting and enter the Ran-
    ____________________________________________________________
    6
    In Strickler v. Greene, 
    527 U.S. 263
     (1999), the Court explained that
    mere suspicion is not enough "to impose a duty on counsel to advance
    a claim for which they have no evidentiary support." 
    Id. at 286
    . Because
    the Presentence Report provided direct evidence that the Commonwealth
    had failed to disclose the alleged Brady material, Walker's reliance on
    Strickler for the premise that his appellate counsel had no basis to raise
    a Brady claim is therefore misplaced. Walker's counsel received evi-
    dence before trial that should have at least raised suspicion that the Com-
    monwealth had the evidence Walker now claims was suppressed in
    violation of Brady. Specifically, the Report of Autopsy, stated that "[t]his
    36 year old male [Stanley Beale] was shot multiple times by an unknown
    assailant. . . . [Witnesses] heard the shots but did not witness the shoot-
    ing." (J.A. at 541 (emphasis added).) However, we need not decide
    whether the Report of Autopsy was sufficient to support the Brady claim
    Walker now asserts because the Presentence Report, containing direct
    evidence of the alleged Brady violation, undoubtedly was.
    7
    Because Walker has not shown cause for the default, we need not
    consider his claim that he has established actual prejudice.
    14
    dolph apartment. Walker contends that the Commonwealth sup-
    pressed the following records that would have impeached the
    testimony of Miller and Patterson: (1) a handwritten note by Detective
    Mullins recording Karen Randolph's statement that "Ty didn't come
    into her apt. [1309 W. Graham Road] after the shooting"8 (J.A. at
    486); (2) a statement to Detective Mullins by 1309 W. Graham Road
    resident Jennifer Stewart that she "didn't see him [Todd] Friday eve-
    ning" (J.A. at 486); (3) the Commonwealth's witness synopsis sheet
    stating that Miller said he saw a black male "walk from scene putting
    something in his pocket. Didn't see face can't 
    ID.
     . . Walked to front
    of 1309 W. Graham Rd. didn't go in. Got into a red Ford Escort and
    drove to Brook Rd." (J.A. at 483); (4) the Supplementary Offense
    Report of Detective Mullins summarizing Miller's account of what he
    witnessed, with no mention of the perpetrator entering 1309 W. Gra-
    ham Road (J.A. at 488-89); and (5) the Supplementary Offense
    Report of Officer Ernst summarizing Miller's account of what he wit-
    nessed, with no mention of the perpetrator entering 1309 W. Graham
    Road (J.A. at 537).
    The state court concluded that this portion of Walker's Brady claim
    was without merit. Specifically, the state court concluded that "no
    material, exculpatory evidence was withheld." (J.A. at 348.) The state
    court reasoned that
    [n]either Stewart nor Randolph testified at trial; a review of
    the investigating officer's complete notes indicates that
    Christopher Miller would not have been impeached since he
    told the officer that he saw a person walk from the Taylor
    apartment and enter the Randolph apartment. Randolph
    would have placed Walker at the murder scene regardless of
    whether she would have testified that he did or did not enter
    her apartment, thereby destroying the exculpatory quality of
    the evidence alleged by petitioner to have been withheld.
    (J.A. at 349.)
    ____________________________________________________________
    8
    Randolph stated in an affidavit that she knew Walker as "Ty." As
    stated above, Patterson knew Walker as "Todd" and Noble knew him as
    "Paul."
    15
    Under the Brady rule, the prosecution is required "to disclose evi-
    dence favorable to the accused that, if suppressed, would deprive the
    defendant of a fair trial." United States v. Bagley, 
    473 U.S. 667
    , 675
    (1985). "[F]avorable evidence is material, and constitutional error
    results from its suppression by the government,``if there is a reason-
    able probability that, had the evidence been disclosed to the defense,
    the result of the proceeding would have been different.'" Kyles v.
    Whitley, 
    514 U.S. 419
    , 433-34 (1995) (quoting Bagley, 
    473 U.S. at 682
    ). While a court initially considers the materiality of undisclosed
    evidence item by item, it must ultimately consider the cumulative
    effect of all suppressed evidence. 
    Id.
     at 435 & 436 n.10.
    First, Randolph's statements to Detective Mullins that "Ty didn't
    come into her [1309 W. Graham Road apartment] after the shooting"
    (J.A. at 486) cannot be characterized as impeachment evidence
    because Randolph did not testify. Moreover, even if it were poten-
    tially exculpatory evidence, it would not fall under the Brady rule
    because Walker's defense counsel was aware before trial of the fact
    that Randolph did not see Ty enter her apartment after the shooting.
    Information known by the defense falls outside of the Brady rule. See,
    e.g., United States v. Agurs, 
    427 U.S. 97
    , 103 (1976) (explaining that
    Brady applies in situations in which information is known to the pros-
    ecution but unknown to the defense).
    Second, Stewart's statement to Detective Mullins that she "didn't
    see [Todd] Friday evening" at 1309 W. Graham Road (J.A. at 486)
    also cannot be characterized as impeachment evidence because Stew-
    art did not testify. Moreover, Stewart's statement is not favorable to
    Walker because it does not contradict Patterson's claim that she saw
    Walker enter the apartment. Patterson testified that she had been
    upstairs with Stewart and that she saw Walker as she was coming
    down the stairs. Patterson did not say whether Stewart was coming
    down the stairs with her and thus gave no indication that Stewart was
    also in a position to see Walker.
    Finally, Walker claims that the following three documents contra-
    dict Miller's testimony that the person Miller saw leave Beale's apart-
    ment entered the Randolph apartment before driving away: the
    Commonwealth's witness synopsis sheet (J.A. at 483), the Supple-
    mentary Offense Report of Detective Mullins (J.A. at 488-89), and
    16
    Supplementary Offense Report of Officer Ernst (J.A. at 537). The
    witness synopsis sheet was created by the prosecution to summarize
    statements by the witnesses. The statement recorded on the witness
    synopsis sheet, that the person Miller observed the night of the shoot-
    ing "didn't go in" 1309 W. Graham Road (J.A. at 483), contradicts
    Miller's testimony that the person he saw leave Beale's apartment
    entered the Randolph apartment before driving away. Even if Brady
    requires a prosecutor to disclose work product,9 there is no indication
    that Miller adopted or approved this statement. Cf. Goldberg v.
    United States, 
    425 U.S. 94
    , 98 & n.3 (1976) (explaining that a prose-
    cutor's work product must be produced under the Jencks Act if it con-
    tains a statement relating to the testimony of a government witness
    that has been "signed or otherwise adopted or approved" by the gov-
    ernment witness). Indeed, it is not even clear whether the prosecution
    recorded these statements during an interview of Miller or was merely
    attempting to summarize another report, such as Detective Mullins's
    Supplementary Offense Report. Detective Mullins's report, created on
    December 16, 1996, contains no statement by Miller regarding
    whether the person he saw entered Randolph's apartment before driv-
    ing away. Detective Ernst's description of his meeting with Miller on
    the day of the murder also does not indicate whether the person Miller
    saw entered the Randolph's apartment. Miller's statements reflected
    in the Supplementary Offense Reports, therefore, do not contradict his
    testimony at trial. Moreover, even if we assume that the Supplemen-
    tary Offense Reports and the witness synopsis sheet fall under the
    Brady rule and would have had some impeachment effect, the prose-
    cution would have been able to rehabilitate Miller with Officer Mul-
    lins's contemporaneous notes of his interview of Miller on the day of
    the murder, which reflect that Miller made the following statements:
    "Car parked on grass 1309 W. Graham Rd. he went inside 1309
    before he left." (J.A. at 860.) It was therefore not an unreasonable
    application of federal law for the state court to conclude that the mate-
    rial allegedly withheld in violation of Brady was either not impeach-
    ment evidence or the cumulative effect of any material that was
    ____________________________________________________________
    9
    The Supreme Court has not decided whether Brady requires a prose-
    cutor to turn over his work product. See Goldberg v. United States, 
    425 U.S. 94
    , 98 n.3 (1976) (leaving open the question of whether Brady com-
    pels the prosecutor to produce notes not covered under the Jencks Act).
    17
    impeachment evidence did not make a different result reasonably
    probable.
    V.
    Walker also seeks to assert that his execution would violate the
    Eighth Amendment under Atkins v. Virginia, 
    536 U.S. 304
    , 
    122 S. Ct. 2242
    , 2252 (2002) (holding that executing a mentally retarded indi-
    vidual violates the Eight Amendment's ban on cruel and unusual pun-
    ishments), a claim he did not make in the district court and has not
    presented in state court. Because Walker's Atkins claim is "a brand-
    new, free-standing allegation of constitutional error in the underlying
    criminal judgment," United States v. Winestock, __ F.3d __, No. 02-
    6304 (4th Cir. Apr. 25, 2003) (explaining how to identify a successive
    application), we construe Walker's assertion of this claim as a motion
    for authorization to file a successive habeas corpus application under
    
    28 U.S.C.A. § 2244
    (b) (West Supp. 2002). See Fischer v. United
    States, 
    285 F.3d 596
    , 600 (7th Cir. 2002) ("If the original [habeas]
    petition did not contain [a new rule of constitutional law as a] ground
    for relief, then that ground has been waived on appeal, . . . and a pris-
    oner's habeas options are thereafter limited by the special rules that
    apply to second or successive collateral attacks."). But see Hill v.
    Anderson, 
    300 F.3d 679
    , 682 (6th Cir. 2002) (combining petitioner's
    Atkins claim, raised for the first time on appeal, with habeas petition
    at issue in appeal). A successive habeas petition is allowed under
    § 2244(b)(2)(A) if "the claim relies on a new rule of constitutional
    law, made retroactive to cases on collateral review by the Supreme
    Court, that was previously unavailable." Walker's claim satisfies
    these requirements because the Court in Atkins announced a new rule
    of constitutional law that applies retroactively to cases on collateral
    review. See Penry v. Lynaugh, 
    489 U.S. 288
    , 330 (1989) (concluding
    that a holding that "the Eighth Amendment prohibits the execution of
    mentally retarded persons . . . would fall under the first exception to
    [Teague's] general rule of non-retroactivity and would be applicable
    to defendants on collateral review"); accord Hill, 
    300 F.3d at 681
    .
    We, therefore, grant Walker's motion and authorize the district court
    to consider Walker's successive habeas petition.10 The district court,
    ____________________________________________________________
    10
    Because we need not consider the factual predicate of Walker's claim
    to address his motion for authorization to file a successive petition, we
    deny Walker's Motion for Leave to File Declaration of Dr. Scott W.
    Sautter as Supplemental Material.
    18
    of course, on considering Walker's petition, is free to dismiss it with-
    out prejudice to afford the Commonwealth of Virginia the first oppor-
    tunity to assess Walker's Atkins claim. See, e.g., Bell v. Cockrell, 
    310 F.3d 330
    , 332-33 (5th Cir. 2002) ("[I]nferior federal courts have no
    useful role to play until and unless following Atkins, a death sentence
    is reaffirmed or again imposed on [the petitioner] by the state courts.
    . . . [T]he state must be given the first opportunity to apply the
    Supreme Court's holding in order to insure consistency among state
    institutions and procedures and to adjust its prosecutorial strategy to
    the hitherto unforeseen new rule."); Hill, 
    300 F.3d at 682
     ("The
    Supreme Court's decision to return Atkins's case to state courts sug-
    gests that we should return [petitioner's] Eighth Amendment retarda-
    tion claim to the state for further proceedings. . . . [The state] should
    have the opportunity to develop its own procedures for determining
    whether a particular claimant is retarded and ineligible for death.").
    Following state review of Walker's Atkins claim, Walker would be
    free to refile his second petition should the need arise.
    VI.
    In summary, we grant a COA as to Walker's claim that his Sixth
    Amendment right to counsel was violated at the guilt phase of his trial
    and his claim that his due process rights were violated when the Com-
    monwealth failed to timely disclose Brady materials. Because we con-
    clude that the resolution of these issues by the Supreme Court of
    Virginia does not constitute an unreasonable application of clearly
    established federal law, we affirm the district court's dismissal of
    these claims. We deny a COA and dismiss Walker's appeal with
    regard to his claim that his Sixth Amendment rights were violated at
    the sentencing phase of his trial because reasonable jurists could not
    debate the district court's resolution of that issue.
    DISMISSED IN PART AND AFFIRMED IN PART
    19