Orbe v. True , 82 F. App'x 802 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DENNIS MITCHELL ORBE, 
Petitioner-Appellant,
v.
 No. 03-4
WILLIAM PAGE TRUE, Warden,
Sussex I State Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-01-1845-A)
Argued: September 23, 2003
Decided: December 11, 2003
Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Michele Jill Brace, VIRGINIA CAPITAL REPRESEN-
TATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellant. Katherine P. Baldwin, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: Robert L. Jenkins, Jr., BYNUM & JENKINS,
P.L.L.C., Alexandria, Virginia, for Appellant. Jerry W. Kilgore,
2 ORBE v. TRUE
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Unpublished opinions are not binding precedent in this circuit.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:
Dennis Mitchell Orbe was convicted by a Virginia jury of capital
murder, robbery, and two related firearm offenses. He was sentenced
to death for the murder, plus sixty years imprisonment for his other
convictions. After unsuccessfully challenging his convictions in state
court on direct review and in state habeas proceedings, Orbe filed a
petition for writ of habeas corpus in federal district court. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 2003). We previously granted
a certificate of appealability as to five claims. We now affirm.
I.
During the early morning hours of January 24, 1998, Orbe shot and
killed Richard Burnett, a convenience store clerk at a gas station in
York County, Virginia, while committing a robbery of the store. The
entire incident was captured on videotape by the store’s security cam-
era. The following facts are taken from the opinion of the Virginia
Supreme Court on Orbe’s direct appeal of his convictions and sen-
tence:
Near 3:38 a.m. on January 24, 1998, the defendant entered
the convenience store, walked up to the check-out counter
where Richard Sterling Burnett was working as a clerk, and
pointed a revolver at Burnett’s chest. After Burnett opened
the cash register drawer, the defendant shot him in the chest.
As Burnett was clutching his chest and struggling to remain
in a standing position, the defendant walked around the
ORBE v. TRUE 3
counter, reached into the cash register drawer, and removed
some money from it. He then fled from the store.
A short while later, a customer at the convenience store dis-
covered Burnett’s body and called for emergency assistance.
F.T. Lyons, an investigator with the York County Sheriff’s
Office, arrived on the scene about 4:25 a.m. Investigator
Lyons found Burnett’s body "on the floor . . . behind the
register." He collected several items from the store for evi-
dentiary purposes, including the video tape recording. He
took the video tape to the sheriff’s office where he used
computer equipment to view it "frame by frame." Lyons
captured images from the video tape, digitized and saved
them, and then printed several of the images. He distributed
those printed images to area law enforcement agencies and
the media.
Orbe v. Commonwealth, 519 S.E.2d 808, 810 (Va. 1999) (footnote
omitted). Although Orbe was quickly identified as the gunman from
the still images obtained from the videotape, he was not apprehended
until January 31, 1998, after police officers chased him by car and on
foot through the streets of Richmond. When apprehended, Orbe had
a partially loaded revolver in the waistband of his pants, which foren-
sics matched to the bullet removed from Burnett’s chest.
Orbe was ultimately tried and convicted in York County of the cap-
ital murder of Burnett, see Va. Code Ann. § 18.2-31.4 (Michie 1996);
robbery, see Va. Code Ann. § 18.2-58 (Michie 1996); and two counts
of using or displaying a firearm while committing murder and rob-
bery, respectively, see Va. Code Ann. § 18.2-53.1 (Michie 1996).
A capital sentencing proceeding was then held, during which the
Commonwealth sought imposition of a sentence of death based upon
the aggravating circumstance of future dangerousness. See Va. Code
Ann. § 19.2-264.4 (Michie 2000). The evidence in support consisted
of Orbe’s criminal actions during the week before and after the mur-
der.
The first incident occurred three days before the murder when
Mark Scougal and Lois Jones came home and found Orbe in their
4 ORBE v. TRUE
bedroom. Orbe "pointed a gun at Scougal and ordered Scougal to
drive him ‘somewhere else’ because he was hiding from the police."
Orbe, 519 S.E.2d at 811. During the confrontation, Jones retrieved a
gun and threatened Orbe. Orbe fired two shots at Jones, one of which
struck her in the leg. Orbe then demanded Scougal’s car keys, but fled
the scene when Scougal refused. The second incident occurred later
that day. Orbe approached Charles Powell and William Bottoms, who
were sitting just outside Bottoms’s home in Richmond. Orbe "ordered
[the men] to walk to the rear of the house" at gunpoint and told them
"that he [had] nothing to lose." Id. (internal quotation marks omitted).
He then took Powell’s car, but left without harming the men.
The third incident occurred six days after the murder. Orbe, who
had again entered a private residence, approached three women who
had arrived to perform cleaning services and threatened them at gun-
point. After ordering the women to get down and hitting one between
the shoulder blades in the process, he made the women crawl on their
stomachs into a bedroom closet. He then nailed a piece of plywood
across the closet door. Orbe took money and other valuables from the
victims and fled in one of their vehicles. The women were released
several hours later when the owners returned home.
The jury also heard evidence in mitigation. Orbe’s stepfather, Wil-
lis Branch, and mother, Brigitte Branch, offered testimony about
Orbe’s difficult and abusive childhood. They also offered testimony
about Orbe’s long struggle with substance abuse, his marital and
financial problems, and his depression and withdrawal. In particular,
the Branches and Linda Fincher, a close friend of Orbe’s during the
year leading up to the murder, highlighted a notable change in Orbe’s
behavior in the months prior to the crime spree and murder. Accord-
ing to each witness, Orbe became alarmingly depressed and with-
drawn after the collapse of his marriage and, in particular, during the
two months prior to the murder.
Dr. Thomas Pasquale, a clinical psychologist, was appointed to
evaluate Orbe for purposes of mitigation and risk assessment regard-
ing Orbe’s future dangerousness. In addition to reviewing various
written materials provided to him concerning Orbe and the charged
crimes, Dr. Pasquale personally interviewed and tested Orbe on sev-
eral occasions prior to the trial and interviewed Orbe’s mother to cor-
ORBE v. TRUE 5
roborate the history provided. At trial, he offered extensive testimony
regarding Orbe’s abusive and troubled childhood, and his increasing
problems with depression in the year leading up to the murder, in part
related to the collapse of his marriage and his perceived failure as a
husband and father. Among other things, Dr. Pasquale testified that
Orbe struggled with feelings of depression, distortion, loneliness, fear,
hopelessness, powerlessness, and worthlessness, and that Orbe con-
templated suicide on a number of occasions in the months just prior
to the murder. Dr. Pasquale also testified regarding Orbe’s history of
substance abuse, and his problems with impulse control dysfunction.
Dr. Pasquale testified that Orbe acknowledged his crime and was
remorseful. Finally, the defense presented favorable testimony from
the jail administrator where Orbe was incarcerated concerning Orbe’s
good behavior during his incarceration.
At the conclusion of the sentencing phase, the jury returned a rec-
ommendation that Orbe be sentenced to death for the murder convic-
tion. The death sentence was imposed by the trial court for the capital
murder, along with a 50 year sentence for the robbery, and five-year
sentences for both of the firearm offenses. See id. at 809. The Virginia
Supreme Court upheld Orbe’s conviction and death sentence on
appeal, see id. at 810, and the United States Supreme Court denied
Orbe’s petition for writ of certiorari, see Orbe v. Virginia, 529 U.S.
1113 (2000). Orbe filed an original petition for a writ of habeas cor-
pus before the Supreme Court of Virginia, which was dismissed, and
the United States Supreme Court again denied certiorari review. See
Orbe v. Taylor, 534 U.S. 1139 (2002).
Orbe filed the instant § 2254 petition for habeas relief in the United
States District Court in May 2002. Upon motion of the state, the dis-
trict court dismissed Orbe’s petition, denied Orbe’s subsequent
motion to alter or amend the judgment, and denied Orbe’s application
for a certificate of appealability. Orbe then filed an application for a
certificate of appealability with this court. Because at least one judge
of the panel concluded that Orbe had "made a substantial showing of
the denial of a constitutional right," 28 U.S.C.A. § 2253(c)(2) (West
Supp. 2003), with respect to five of his claims, we granted a certifi-
cate of appealability to consider (1) whether the prosecutor’s deci-
sionmaking was tainted by improper considerations of race (Claim
I(A)), (2) whether the trial court improperly excused a venireman
6 ORBE v. TRUE
from jury service (Claim II(A)), (3) whether defense counsel was
ineffective by unreasonably failing to protect Orbe from the prosecu-
tor’s improper considerations of race (Claim I(B)), (4) whether
defense counsel was ineffective by unreasonably failing to challenge
the exclusion of the venireman (Claim II(B)), and (5) whether defense
counsel rendered ineffective assistance during the sentencing phase of
Orbe’s trial by unreasonably failing to investigate, obtain and present
additional mitigating evidence (Claim III).
We denied a certificate of appealability for the remaining claims.
For the reasons that follow, we now affirm the district court’s dis-
missal of Orbe’s petition for a writ of habeas corpus.
II.
Orbe’s first two claims — that the prosecutor’s decision was
tainted by improper considerations of race (Claim I(A)), and that the
trial court improperly excluded Velma Conner from jury service
(Claim II(A)) — were not raised by Orbe until state habeas review.
Because Orbe did not raise either claim at trial or on appeal, the Vir-
ginia Supreme Court ruled that they were procedurally barred pursu-
ant to Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding
that claims not properly raised on direct appeal will not be considered
as a basis for collateral relief).
Orbe also raised for the first time on state habeas review, as related
Sixth Amendment claims, his next two claims — that his defense
counsel was constitutionally ineffective by failing to protect Orbe
from the prosecutor’s consideration of race and by failing to challenge
the exclusion of Venireman Conner at trial or on direct appeal
(Claims I(B) and II(B)). The Virginia Supreme Court rejected these
claims as well, ruling that Claim I(B) was without merit because Orbe
had produced insufficient proof of racial discrimination in the prose-
cution of the case, and that Claim II(B) failed because Orbe did not
demonstrate that his counsel’s failure to object to the dismissal of the
juror under the circumstances amounted to deficient performance or
that he was prejudiced by his counsel’s failure to raise the issue on
direct appeal.
ORBE v. TRUE 7
A.
Like the district court, we must first determine whether Orbe has
procedurally defaulted federal habeas review of his race discrimina-
tion and juror exclusion claims (Claims I(A) and II(A)) because he
failed to raise them on direct appeal to the Virginia Supreme Court.
The district court concluded that the claims were procedurally
defaulted. We agree.
It is well settled that a federal habeas court may not review consti-
tutional claims when a state court has declined to review them on the
merits "pursuant to an independent and adequate state procedural rule,
. . . unless the prisoner 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 funda-
mental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,
750 (1991); see also Harris v. Reed, 489 U.S. 255, 262 (1989). The
question of whether a particular state procedure is independent and
adequate is one of federal, not state, law. See Johnson v. Mississippi,
486 U.S. 578, 587 (1988). "A state rule is adequate if it is firmly
established and regularly or consistently applied by the state court,
and independent if it does not depend on a federal constitutional rul-
ing." Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003) (citations, inter-
nal quotation marks, and alteration omitted).
In this case, there is no dispute that the Virginia court did not con-
sider Orbe’s constitutional Claims I(A) and II(A) on state habeas
review because they were procedurally barred by a regularly and con-
sistently applied state court rule. See Royal v. Taylor, 188 F.3d 239,
245 (4th Cir. 1999) (noting that "Slayton is a valid state procedural
rule, independent of the federal question and adequate to support the
judgment"). Thus, we may not review the claims on the merits unless
Orbe demonstrates "cause for the default and actual prejudice" or
"that failure to consider the claims will result in a fundamental mis-
carriage of justice." Coleman, 501 U.S. at 750; see also Brown, 319
F.3d at 169.
Orbe contends that he is entitled to federal review of the merits of
his race discrimination and juror exclusion claims because he has
demonstrated cause and prejudice based upon his defense counsel’s
8 ORBE v. TRUE
failure to pursue the matters at the trial stage. See Burket v. Angelone,
208 F.3d 172, 189 (4th Cir. 2000) (constitutionally ineffective assis-
tance of counsel may establish cause for a procedural default). Thus,
Orbe has presented, as cause for his procedural default of the underly-
ing constitutional claims (Claims I(A) and II(A)), ineffective assis-
tance of counsel claims that are identical to the Sixth Amendment
ineffective assistance claims he has set forth separately in Claims I(B)
and II(B) of his petition.
B.
The Sixth Amendment requires that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence," U.S. Const. amend. VI, and that such assistance be
effective, see Strickland v. Washington, 466 U.S. 668, 686 (1984). In
order to establish an ineffective assistance of counsel claim before the
state court, Orbe was required to establish that his "counsel’s repre-
sentation fell below an objective standard of reasonableness," mea-
sured by the "prevailing professional norms," id. at 688, and "that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different," id. at
694. "Unless a defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable." Id. at 687.
Because there is no dispute that the state habeas court adjudicated
the merits of Orbe’s ineffective assistance of counsel claims (Claims
I(B) and II(B)), the district court properly evaluated these claims
under the standard of review set forth in § 2254(d). Under this stan-
dard, a federal habeas court is precluded from granting habeas relief
unless it concludes that Virginia’s adjudication of the claim "was con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States" or "resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C.A. § 2254(d)(1); see Williams v.
Taylor, 529 U.S. 362 (2000). It is less clear, however, that the district
court appropriately applied this same deferential standard of review
to Orbe’s assertion that he has demonstrated cause to excuse his pro-
cedural default of the race discrimination and juror exclusion claims
ORBE v. TRUE 9
(Claims I(A) and II(A)) because his counsel was constitutionally inef-
fective in failing to protect him from the prosecutor’s consideration
of race and the trial court’s exclusion of the venireman at trial and on
direct appeal.
At least one circuit court has addressed a similar "preliminary puz-
zle." See Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003). As correctly
noted by the Lee court, it is "established that the assertion of ineffec-
tive assistance as a cause to excuse a procedural default in a § 2254
petition is, itself, a constitutional claim that must have been raised
before the state court or be procedurally defaulted." Id.; see Edwards
v. Carpenter, 529 U.S. 446, 453 (2000) (holding that a defendant’s
claim of ineffective assistance of counsel as cause for procedural
default in a § 2254 petition is a constitutional claim that is also sub-
ject to being procedurally defaulted if it was not timely raised before
the state court). However, as also correctly observed by the Lee court,
Edwards does not tell us whether "the same claim of ineffective assis-
tance of counsel get[s] reviewed differently when presented merely as
cause for a procedural default as opposed to being presented in a peti-
tion as the basis in the first instance for habeas relief[.]" Lee, 328 F.3d
at 901.
By engrafting the deferential standard of § 2254(d) onto the
"cause" prong of the federal doctrine of procedural default, the district
court effectively held that § 2254(d) compels the conclusion that fed-
eral habeas courts are precluded from reviewing a procedurally
defaulted federal constitutional claim which has not been reviewed on
the merits by any court, even if we would independently find that
counsel was constitutionally ineffective for failing to raise the claim
on direct appeal — unless, of course, we could also say that the state
court’s contrary finding was an unreasonable application of Supreme
Court precedent. Cf. Mitchell v. Esparza, 124 S. Ct. 7, 11 (2003) (per
curiam) (noting that under § 2254(d)’s standard of review, "[a] federal
court may not overrule a state court for simply holding a view differ-
ent from its own, when the precedent from this Court is, at best,
ambiguous"). However, at least one other district court has reached a
contrary conclusion, holding that procedural default remains an inde-
pendent federal doctrine and, accordingly, that we determine de novo
whether a state court defendant has demonstrated cause to excuse his
or her failure to raise a constitutional claim before the state courts.
10 ORBE v. TRUE
See Holloway v. Horn, 161 F.Supp.2d 452, 478 n.12 (E.D. Pa. 2001);
Holland v. Horn, 150 F.Supp.2d 706, 747 (E.D. Pa. 2001). However,
in this case, we find it unnecessary to resolve the issue. Even if we
assume that de novo review is the appropriate one to apply to the
"cause" determination, Orbe has failed to demonstrate that his counsel
was ineffective, as we explain below. Accordingly, Orbe has not
established cause for his procedural default of Claims I(A) and II(A),
and we affirm the district court’s dismissal of these claims.
III.
We begin with Orbe’s claim that defense counsel failed to protect
Orbe from the prosecutor’s improper consideration of race in the deci-
sionmaking process. Specifically, Orbe claims that the prosecutor
considered race in making her decision to charge Orbe with capital
murder and in refusing defense counsel’s offer to have Orbe plead
guilty to murder in exchange for a sentence of life imprisonment, and
that his defense counsel unreasonably failed to recognize the discrimi-
nation and pursue it to the benefit of his client.
The alleged "evidence" of race discrimination relied upon by Orbe
arose during a conversation between the prosecutor and defense coun-
sel prior to trial. Defense counsel approached the prosecuting attorney
to discuss the possibility of Orbe pleading guilty to a murder charge
in exchange for a life sentence. According to Orbe’s lead defense
counsel, the prosecutor "told [him] that she could not agree to give
a white man (Mr. Orbe) a life sentence when she had just asked for
and obtained a death sentence for a black man (Daryl Atkins) in an
unrelated capital murder." J.A. 615. The alleged statement highlighted
by Orbe, however, was only a part of the conversation. Defense coun-
sel also related that the prosecutor told him "that the murder of Rich-
ard Burnett was unusual in York County and considered to be a very
serious crime," that "the crime was as deserving of the death penalty
as Daryl Atkins’ case, that she intended to treat them the same and
that she would not offer an agreement because she believed a jury
should decide the appropriate punishment." J.A. 618. Although the
prosecutor also "comment[ed] that people would say a plea agreement
was offered to Orbe solely because he was white," J.A. 618, defense
counsel made it clear that he "did not think [the prosecutor’s] com-
ORBE v. TRUE 11
ments were racially motivated," and that "[i]f so, [he] would have
raised it with the Court." J.A. 619.
The prosecutor offered a similar account of the conversation
between them. She stated that she told defense counsel that the Atkins
case was the only other serious crime in York County of which she
was aware, that she would not consider any plea agreement, that "just
as in Atkins’ case, [she] believed a jury should decide what the appro-
priate punishment would be," that she "considered Orbe’s case to be
just as serious as Atkins’ case and would not treat it any differently,"
and that "only as an afterthought, [she] remarked that [she] could
imagine that if there was such a plea agreement in Orbe’s case, some-
one might allege that he received special treatment only because he
was white." J.A. 620.
On state habeas, the Virginia Supreme Court rejected Orbe’s claim
that his defense counsel was ineffective for failing to pursue a claim
that he had been subjected to selective prosecution on account of his
race. Noting that both defense counsel and the prosecutor averred that
the statement was not intended or considered to be racially motivated,
the Virginia court concluded that the ineffective assistance of trial
counsel claim "fail[ed] for lack of proof that there was racial discrimi-
nation in the prosecution of the case." J.A. 598.
Orbe contends that he demonstrated ineffective assistance of
defense counsel, but not just because defense counsel failed to raise
a claim of selective prosecution based upon race discrimination.
Rather, Orbe contends that defense counsel was ineffective because
he failed to take advantage of the prosecutor’s comment and coerce
her into making the deal. Specifically, Orbe contends that defense
counsel should have "confront[ed] the prosecutor privately,
explain[ed] that her statement created the appearance of racial dis-
crimination, and encourage[d] her to accept a plea agreement in order
to avoid public exposure and political repercussions for her unfortu-
nate prior statement." Appellant’s Brief at 18. Barring this, Orbe con-
tends that defense counsel should have moved to recuse the
prosecutor.
We disagree. Decisions to prosecute "may not be based on an
unjustifiable standard such as race, religion, or other arbitrary classifi-
12 ORBE v. TRUE
cation." United States v. Armstrong, 517 U.S. 456, 464 (1996) (inter-
nal quotation marks omitted); Bordenkircher v. Hayes, 434 U.S. 357,
364-65 (1978) (noting that "an unjustifiable standard such as race,
religion, or other arbitrary classification . . . may play no part in [the
prosecutor’s] charging decision"). However, prosecutors have "broad
discretion" in such matters and a "presumption of regularity supports
their prosecutorial decisions." Armstrong, 517 U.S. at 464 (internal
quotation marks omitted); see also Rowsey v. Lee, 327 F.3d 335, 343
(4th Cir. 2003) ("To succeed on a selective-prosecution claim, a
defendant must demonstrate that the prosecutor’s decision was based
on an unconstitutional motive." (internal quotation marks omitted)).
"In order to dispel the presumption that a prosecutor has not violated
equal protection, a criminal defendant must present clear evidence to
the contrary." Armstrong, 517 U.S. at 465 (internal quotation marks
omitted).
Having carefully reviewed the account of the plea conversation
between defense counsel and the prosecutor, as well as the informa-
tion regarding the Atkins case, we cannot conclude that the prosecu-
tor’s mere mention of race amounted to clear evidence that she
decided to indict Orbe for capital murder and rejected his plea offer
because of his race. As noted by the district court, Orbe "does not
contend that he was treated differently from Atkins on account of their
different races." Orbe v. True, 233 F.Supp.2d 749, 767 (E.D. Va.
2002) (emphasis added). Rather, Orbe complains because "he was
treated the same as Atkins, when he should not have been, because
their races differed." Id. (emphasis added). However, Orbe has failed
to present clear evidence that the prosecutor violated his rights to
equal protection. On the contrary, the prosecutor’s statements are
more fairly read as evidencing her intent to be evenhanded in her
approach to the similar murder cases regardless of the race of the
defendant. And, we certainly cannot say that defense counsel, who
likewise did not perceive the comment to be racially-motivated, was
constitutionally ineffective for failing to raise a selective prosecution
claim on appeal or for failing to exploit the prosecutor’s mere men-
tion of Orbe’s race during the conversation. Based on the above dis-
cussion, we also hold that the state court’s resolution of Claim I(B)
was not contrary to or an unreasonable application of clearly estab-
lished federal law.
ORBE v. TRUE 13
IV.
Orbe’s next claim is that his defense counsel was ineffective for
failing to object to the trial court’s dismissal of Venireman Conner for
cause based upon Conner’s responses to questions about whether she
could impose the death penalty.
During qualification of a capital jury, the trial court may exclude
a potential juror based upon his or her personal views on capital pun-
ishment if "the juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instruc-
tions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(internal quotation marks omitted). "[T]he question of juror bias is to
be resolved by the trial judge’s assessment of demeanor and credibil-
ity, and . . . such assessments are to be accorded a presumption of cor-
rectness under 28 U.S.C. § 2254(d)." Maynard v. Dixon, 943 F.2d
407, 415 (4th Cir. 1991). Juror bias need not be proved with "unmis-
takable clarity." Wainwright, 469 U.S. at 424 (internal quotation
marks omitted). Rather, when juror responses are less than clear, "the
determination made by the trial court, based on its eyeing the juror,
is presumed to be consistent with the applicable standard." Maynard,
943 F.2d at 415.
During the qualification phase of the case, Conner consistently
expressed uncertainty in her ability to act as an unbiased juror capable
of imposing the death penalty if Orbe were convicted of capital mur-
der. She first expressed uncertainty as to whether information she had
obtained from the news media about the murder would affect her
impartiality:
THE COURT: So all of you have heard something about
[the case] from the news media or other sources. That’s fine.
Would this information that you’ve received from the
news media affect your impartiality in this case?
. . . I need to find out whether you can stand impartial
even though you’ve seen something about it on TV or heard
something about it by radio or read about it in the newspa-
per.
14 ORBE v. TRUE
VENIREMAN CONNER: Yeah, I think so.
THE COURT: You think what, it affects your impartiality
or doesn’t affect it?
VENIREMAN CONNER: It doesn’t. I don’t know.
J.A. 31-32. Later, when Venireman Conner was asked whether she
had an opinion that would prevent her from convicting someone of an
offense punishable by death, she again expressed uncertainty and hes-
itancy about her ability to do so:
THE COURT: Mrs. Conner, do you have an opinion that
would prevent you from convicting someone of an offense
that is punishable by death?
VENIREMAN CONNER: I didn’t think so at one time,
that death would not be a problem. But when I got — once
I got the subpoena, it is a problem for me.
THE COURT: Okay. I understand that.
VENIREMAN CONNER: I have to be honest with you.
THE COURT: I want you to be honest with me.
And you feel that you just could not impose the death
penalty if you found the Defendant guilty?
VENIREMAN CONNER: The evidence would have to
be very strong for me to do that.
J.A. at 34. After questioning the other jurors about their ability to
impose the death sentence, the court excused Venireman Conner from
further service, without objection from either side:
THE COURT: Ms. Conner, would you feel better if you
were relieved of the duty of having to sit in judgment of
somebody that you might have to impose the death penalty?
ORBE v. TRUE 15
VENIREMAN CONNER: I think so as far as the death
penalty, yes.
THE COURT: All right. We’re going to . . . honor your
thoughts and your conscience, and we’re going to find that
you could not stand without bias or partiality because of
your beliefs. And that’s no . . . discredit to you.
J.A. 35.
The state habeas court ruled that Orbe failed to establish that
defense counsel’s performance was constitutionally ineffective. Based
upon the entire voir dire of Venireman Conner, it could not "say that
counsel’s decision not to object ‘fell below an objective standard of
reasonableness.’" J.A. 599 (quoting Strickland, 466 U.S. at 688).
We agree. Were we adjudicating the merits of a claim that the trial
court improperly dismissed Venireman Conner over defense coun-
sel’s unsuccessful objection, our task would be a more difficult one.
On the cold record, it is not unquestionably apparent that Venireman
Conner’s responses demonstrated that her "views would prevent or
substantially impair the performance of h[er] duties as a juror in
accordance with h[er] instructions and h[er] oath." Wainwright, 469
U.S. at 424 (internal quotation marks omitted). But, we would also be
required to remain mindful of the substantial deference owed to a trial
judge’s ability to assess the demeanor of the witness under question-
ing. See Maynard, 943 F.2d at 415. In any event, this is not the ques-
tion before us. We are called upon to determine whether Orbe has
demonstrated that his defense counsel was constitutionally ineffective
for failing to object when the trial judge decided to "honor [Ms. Con-
ner’s] thoughts and [her] conscience" and excuse her from further ser-
vice in Orbe’s case. J.A. 35. Although Orbe obtained affidavits from
trial counsel in support of his state habeas petition, Orbe has pre-
sented no evidence from defense counsel regarding this issue. There
is no indication, for example, that defense counsel did not object
because he failed to appreciate the possible error. On the contrary, all
indications from the transcript are that Orbe’s defense counsel under-
stood his role during the process of jury selection. We can envision
any number of reasons why defense counsel may have strategically
concluded that Venireman Conner would best be excused, and it may
16 ORBE v. TRUE
even be that counsel was pleased not to have to use a peremptory
challenge to accomplish the same result, although no such reasons
have been provided to us.
When reviewing claims that a defendant’s trial counsel was inef-
fective, we are not at liberty to upset a state court verdict based upon
a presumption that counsel was incompetent merely because he did
not make an issue out of what appears, on a cold record, to have been
a potential issue.
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse sen-
tence, and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. A
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hind-
sight, to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circum-
stances, the challenged action might be considered sound
trial strategy.
Strickland, 466 U.S. at 689 (citations and internal quotation marks
omitted). On the contrary, we must remain mindful of the deference
owed to defense counsel, the presumption that the assistance given
was effective, and that the burden is placed upon the defendant to
prove ineffectiveness:
A convicted defendant making a claim of ineffective assis-
tance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable profes-
sional judgment. The court must then determine whether, in
light of all the circumstances, the identified acts or omis-
sions were outside the wide range of professionally compe-
ORBE v. TRUE 17
tent assistance. In making that determination, the court
should keep in mind that counsel’s function, as elaborated
in prevailing professional norms, is to make the adversarial
testing process work in the particular case. At the same time,
the court should recognize that counsel is strongly presumed
to have rendered adequate assistance and made all signifi-
cant decisions in the exercise of reasonable professional
judgment.
Id. at 690.
Orbe has presented no evidence that would support a finding that
defense counsel’s failure to object reflected anything more than his
reasonable decision, based upon his observation of Venireman Con-
ner’s demeanor, that she was too indecisive or uncomfortable with the
task at hand to be a favorable or effective juror. The only "evidence"
that counsel was ineffective is, in actuality, Orbe’s argument that, had
counsel objected, it would have been error for the judge to dismiss the
juror over that objection. Given the broad range of discretion Strick-
land demands that we give defense counsel in such matters, the for-
mer does not necessarily flow from the latter or overcome the
presumption of competence he is entitled to under the applicable pre-
cedents. Accordingly, Orbe has failed to present sufficient proof that
counsel was constitutionally ineffective for failing to object to the
trial court’s decision to dismiss Venireman Conner. Based on the
above discussion, we also hold that the state court’s resolution of
Claim II(B) was not contrary to or an unreasonable application of
clearly established federal law.
V.
Orbe’s final claim is that his defense counsel was constitutionally
ineffective for failing to adequately investigate Orbe’s background
and personal circumstances and to present related mitigating evidence
to the jury. Specifically, Orbe asserts that defense counsel: (1) failed
to adequately investigate and present to the jury Orbe’s history of sex-
ual, physical and emotional abuse; (2) failed to obtain and present
additional mitigating evidence from family and friends regarding this
abuse, his troubled childhood, and his struggles with mental illness
and depression; (3) failed to present evidence that Orbe probably suf-
18 ORBE v. TRUE
fered from Bipolar Disorder, instead of or in addition to evidence of
his depression and suicidal thoughts; and (4) failed to obtain mental
health records that would have demonstrated that Orbe was suicidal
and had sought in-patient treatment eight months prior to the murder.
A.
Because the Virginia Supreme Court adjudicated the merits of
Orbe’s Sixth Amendment claims related to mitigation evidence, we
may not grant a writ of habeas corpus unless the state court’s adjudi-
cation "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States" or "resulted in a
decision that was based on an unreasonable determination of the facts
in light of the evidence presented at the State court proceeding." 28
U.S.C.A. § 2254(d).
A state court decision is "contrary to . . . clearly established Federal
law, as determined by the Supreme Court," 28 U.S.C.A. § 2254(d)(1),
"if the state court arrives at a conclusion opposite to that reached by
th[e] Court on a question of law or if the state court decides a case
differently than th[e] Court has on a set of materially indistinguish-
able facts," Williams, 529 U.S. at 413. A state court decision "in-
volve[s] an unreasonable application of[ ] clearly established Federal
law, as determined by the Supreme Court," 28 U.S.C.A. § 2254(d)(1),
if the state court decision "identifies the correct governing legal prin-
ciple from th[e] Court’s decisions but unreasonably applies that prin-
ciple to the facts of the prisoner’s case," Williams, 529 U.S. at 413.
An objectively "unreasonable application of federal law is different
from an incorrect or erroneous application of federal law." Id. at 412.
Thus, "a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law errone-
ously or incorrectly. Rather, that application must also be unreason-
able." Id. at 411.
The "clearly established" Supreme Court precedent which guides
our review of this claim under § 2254(d) is the familiar two-part test
set forth in Strickland. Orbe must show that his "counsel’s representa-
tion fell below an objective standard of reasonableness," measured by
ORBE v. TRUE 19
the "prevailing professional norms," Strickland, 466 U.S. at 688, and
"that there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different,"
id. at 694. See also Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003)
(noting that the "petitioner must show that counsel’s performance was
deficient, and that the deficiency prejudiced the defense").
In death penalty cases, defense counsel is required to undertake
reasonable investigations into possible mitigating evidence that could
be presented during the penalty phase. See id. at 2535-36; Strickland,
466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investiga-
tions or to make a reasonable decision that makes particular investiga-
tions unnecessary."). However, courts employ a highly deferential
review of defense counsel’s decisions as to what evidence should be
presented in mitigation. See Byram v. Ozmint, 339 F.3d 203, 209 (4th
Cir. 2003). "[T]here is a presumption that ‘counsel’s conduct falls
within the wide range of reasonable professional assistance.’" Id.(quoting Strickland, 466 U.S. at 689). "Strickland does not require
counsel to investigate every conceivable line of mitigating evidence
no matter how unlikely the effort would be to assist the defendant at
sentencing. Nor does Strickland require defense counsel to present
mitigating evidence at sentencing in every case." Wiggins 123 S. Ct.
at 2541.
In preparation for the mitigation case, Orbe’s defense counsel inter-
viewed Orbe, Orbe’s mother (Brigette Branch), Orbe’s current stepfa-
ther (Willis Branch), a close friend of Orbe’s at the time of the murder
(Linda Fincher), and the administrator of the jail where Orbe was
incarcerated. Information obtained from these interviews was pro-
vided to Dr. Pasquale, who was appointed to assist the defense. Dr.
Pasquale, in turn, also interviewed Orbe and Orbe’s mother, as well
as jail personnel and Orbe’s former mother-in-law.
During the sentencing phase, defense counsel presented the testi-
mony of the Branches, Linda Fincher, and Dr. Pasquale. Orbe refused
to testify during the mitigation phase against the advice of his coun-
sel. However, the testimony that was presented painted a picture of
Orbe’s troubled childhood and the physical and emotional abuse he
suffered at the hands of Clyde Sizemore, his mother’s ex-husband.
The evidence also highlighted his ongoing battles with substance
20 ORBE v. TRUE
abuse from an early age, his financial and marital problems, the col-
lapse of his marriage and loss of contact with his children, and his
increasing depression and thoughts of suicide in the months leading
up to the murder.
In the course of his evaluation of Orbe, Dr. Pasquale learned that
Orbe, his mother, and two brothers were abandoned by his alcoholic
natural father when Orbe was less than two years old. His mother
remarried Sizemore, an alcoholic who was in the military. Orbe was
raised in Germany for most of his childhood in this military family
setting. According to Dr. Pasquale, Orbe told him that he often
observed Sizemore beating his mother, and that he suffered emotional
abuse. Orbe denied that he had been physically abused, but Dr. Pas-
quale testified that Orbe’s mother did relate that Orbe was both physi-
cally and emotionally abused by Sizemore. Dr. Pasquale also testified
that Orbe, who registered within a range of low end average IQ and
had a history of learning disabilities, did not do well in school aca-
demically and eventually dropped out. Orbe’s older brother Glen was
eventually sent back to the United States to live with a relative, but
ran away and lost contact with his family for a number of years. Dr.
Pasquale also related that Orbe had been badly beaten by a group of
teenagers when he was seventeen years old.
Orbe’s mother also testified during the sentencing phase of Orbe’s
trial, offering more details of Sizemore’s physical and emotional
abuse of Orbe. She testified that, after Sizemore returned from Viet-
nam, he was very abusive to all of her sons. According to Orbe’s
mother, Sizemore hit Orbe, called him names, told him he was "dumb
and stupid," and taunted him with the fact that he "d[id not] even have
a father" and "should have just . . . not even been born." J.A. 163.
Orbe’s mother also confirmed Orbe’s long history of substance abuse,
which was corroborated by Orbe’s current stepfather and Linda Fin-
cher. Orbe’s mother and current stepfather testified that Orbe’s natu-
ral father was an alcoholic, explained Orbe’s marital and financial
problems and their effect upon his demeanor, and related Orbe’s
increasing problems with depression and withdrawal in the months
leading up to the murder.
B.
Orbe’s first contention is that counsel was constitutionally ineffec-
tive because he failed to adequately investigate and present evidence
ORBE v. TRUE 21
that Orbe had been sexually abused by his grandfather when he was
a very young child and failed to adequately convey the degree to
which Orbe was subjected to physical and emotional abuse by Size-
more.
The basis for Orbe’s current allegations of sexual abuse at the
hands of his grandfather arises solely from an affidavit provided to
Orbe’s state habeas counsel by his older brother, Glen Orbe. In the
affidavit, Glen claims that Orbe was subjected to sexual abuse by
their grandfather in Germany when Orbe was between the ages of two
and five years old. During his pre-trial interview with Dr. Pasquale,
however, Orbe denied that he was subjected to anything other than
emotional abuse as a child and, in his post-trial affidavit in support
of state habeas, Orbe claimed to have no memories of his childhood
prior to the age of seven or eight. Orbe’s mother either was not aware
of any such sexual abuse, or did not relate it to defense counsel, to
Dr. Pasquale, or to the jury. Glen was sent back to the United States
in 1979, when Orbe was in his early teens, and ran away shortly after
his return. According to Orbe’s mother, the family members lost
touch with Glen until 1999, when her son Tony located him by
searching on the Internet. Thus, Glen had absolutely no contact with
Orbe or any other family members from the time he left Germany,
when Orbe was 16 years old, until a year after the murder of Bennett.
Orbe also advances a related claim that the state court unreasonably
concluded that defense counsel was not ineffective in the presentation
of mitigation evidence because he failed to present additional testi-
mony from Orbe’s mother, Orbe’s brothers, and Orbe’s natural father
concerning Orbe’s family history of depression and substance abuse
and the abuse inflicted upon him by Sizemore, and failed to present
additional testimony provided by affidavit from Orbe’s friend, Fin-
cher, which elaborated upon her trial testimony regarding Orbe’s
depression, suicidal intentions, and substance abuse in the months
leading up to the murders.
During the trial, however, Orbe’s mother provided testimony of the
physical and emotional abuse Orbe suffered at the hands of his first
stepfather, Sizemore. She testified that Orbe’s natural father was an
alcoholic, that he had abandoned the family when Orbe was an infant,
22 ORBE v. TRUE
and that Orbe did not have any contact with his natural father until
just prior to the murder.
The state habeas court rejected Orbe’s claim of ineffective assis-
tance of counsel because Orbe had denied any prior physical abuse
and because the jury heard the relevant evidence regarding the mental
and physical abuse that Orbe had suffered. The state habeas court also
considered the proffered additional evidence and ruled that, with the
exception of the sexual abuse allegations advanced by Glen (which
were denied by Orbe), the abuse evidence was adequately presented
to the jury by those that were called to testify.
The district court likewise ruled that defense counsel was not inef-
fective in relying upon the information provided by the defendant and
in failing to seek out Glen Orbe based upon the information obtained
from Orbe and Orbe’s mother and stepfather. See Strickland, 466 U.S.
at 691 ("The reasonableness of counsel’s actions may be determined
or substantially influenced by the defendant’s own statements or
actions. Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information
supplied by the defendant. In particular, what investigation decisions
are reasonable depends critically on such information."); Barnes v.
Thompson, 58 F.3d 971, 979-80 (4th Cir. 1995) (holding that defense
counsel "may rely on the truthfulness of his client and those whom
he interviews in deciding how to pursue his investigation"). With
regard to the "additional" evidence of emotional and physical abuse,
this evidence was presented in the form of affidavits from those wit-
nesses who testified during the sentencing phase, elaborating upon the
testimony that they gave. Thus, the district court noted that most of
the information had already been presented at trial.
For the reasons set forth in the district court’s opinion, we also can-
not say that defense counsel’s failure to discover Glen Orbe’s allega-
tions of sexual abuse or to present more elaborate testimony of the
emotional and physical abuse suffered by Orbe and his other prob-
lems now offered by his friend and family fell below an objective
standard of reasonableness, or that the state court’s adjudication of
this claim was contrary to or involved an unreasonable interpretation
of applicable Supreme Court precedent.
ORBE v. TRUE 23
C.
Orbe’s next claim is that his defense counsel was ineffective
because he failed to present evidence that Orbe likely suffered from
Bipolar Disorder. As noted by the state court and district court, Dr.
Pasquale, who was appointed to assist the defense in preparation of
mitigation evidence, interviewed and performed psychological tests of
Orbe on several occasions and was well aware of the mental health
symptoms that Orbe contends support a diagnosis of Bipolar Disor-
der. Dr. Pasquale diagnosed Orbe as suffering from major depression,
recurrent, with additional symptoms of suicidal intent, loss of interest
in everything in life, and severe agitation, and testified that Orbe
underwent "paranoic decompensation" during his crime spree. In
addition, Dr. Pasquale testified that Orbe suffered from alcohol
dependence and impulse control dysfunction, characterized by aggres-
sive, violent and impulsive acting out. But, he did not diagnose Orbe
with Bipolar Disorder.
The state habeas court ruled that "[h]aving received a diagnosis
from Dr. Pasquale, counsel was not obliged to seek another, poten-
tially more favorable diagnosis." J.A. 608; see Poyner v. Murray, 964
F.2d 1404, 1419 (4th Cir. 1992) (holding that "[t]he mere fact that his
counsel did not shop around for a psychiatrist willing to testify to the
presence of more elaborate or grave psychological disorders simply
does not constitute ineffective assistance"). The district court likewise
denied federal habeas relief, ruling that "even assuming arguendo that
Dr. Pasquale’s diagnosis was flawed, Orbe has not shown that counsel
was unreasonable in relying upon it or in failing to conduct a more
detailed investigation of his own." Orbe, 233 F.Supp.2d at 783. Like
the district court, we cannot say that the Supreme Court of Virginia
was unreasonable in its dismissal of this claim under the performance
prong of Strickland.
D.
Finally, we reject Orbe’s claim that defense counsel was ineffective
for failing to obtain medical records from Chesterfield Mental Health
Services, which would have supported Dr. Pasquale’s diagnosis that
Orbe was deeply depressed, had suicidal tendencies, and that he had
sought and been denied in-patient treatment for his problems months
24 ORBE v. TRUE
before the murder. The state habeas court ruled that Orbe had failed
to demonstrate that counsel was ineffective because "[t]he records at
issue report that [Orbe] expressed only suicidal ideation, but with no
plan for, or actions taken toward, carrying out those thoughts. Not
only would these records have discredited any claim that [Orbe] was
depressed and seriously considering killing himself, they would have
supported the Commonwealth’s position that [Orbe] was not serious
about taking his own life." J.A. 608. The district court, on the other
hand, assumed that counsel was deficient for failing to obtain the
records and dismissed the claim under Strickland’s "prejudice" prong:
First, the Chesterfield records do not objectively corroborate
Orbe’s suicidal intent. They indicate only that Orbe reported
he was suicidal, not that he was found suicidal by a treating
physician or given treatment for suicidal tendencies. Indeed,
the records show that he was refused treatment on that basis.
Second, although the jury was not shown the Chesterfield
records, they were informed that Orbe sought mental health
treatment before the January crime spree. Finally, as brought
out at trial, other statements and actions by Orbe indicate a
strong ambivalence with regard to suicide, with or without
the addition of the Chesterfield records. For these reasons,
even assuming that the question of whether or not Orbe was
suicidal at the time of the crime spree was relevant to the
jury’s verdict, it is unlikely that the presentation of the
Chesterfield records would have significantly altered the
jury’s conclusion on that question. It follows that Orbe has
not shown that there was a "reasonable probability" that pre-
senting the Chesterfield records would have affected the
outcome of the trial.
Orbe, 233 F.Supp.2d at 784 (footnote omitted). Having reviewed the
record, we agree with the district court’s disposition of this claim and
Orbe’s similar complaint that defense counsel unreasonably failed to
present school records demonstrating that Orbe changed schools fre-
quently, was a poor student, and was placed in special education
classes also fails. The jury was presented with undisputed testimony
that Orbe was part of a military family, that he struggled in school,
was of low average intelligence, and that he suffered from learning
disabilities. Thus, the substance of the evidence was presented to the
ORBE v. TRUE 25
jury and there is no reasonable probability that the school records
would have resulted in a different outcome.
Finally, like the district court, we have considered the totality of
the evidence Orbe advances in support of all of his claims of ineffec-
tive assistance of counsel during the mitigation phase of his case and
agree that, "when the mitigating and aggravating evidence is consid-
ered as a whole, there is no reasonable probability that the quantum
of additional evidence that Orbe argues should have been presented
at the sentencing phase of the trial would have affected the outcome."
Orbe, 233 F.Supp.2d at 785. Thus, we affirm, largely on the basis of
the reasoning set forth by the district court in its decision, the dis-
missal of Orbe’s claim for habeas relief on the basis of ineffective
assistance of counsel in the presentation of mitigating evidence.
VI.
For the foregoing reasons, we affirm the district court’s denial of
Orbe’s petition for writ of habeas corpus.
AFFIRMED