Ward v. Trent

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PHILLIP A. WARD,
Petitioner-Appellant,
v. No. 98-7267
GEORGE TRENT, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CA-97-1107)
Submitted: April 27, 1999
Decided: August 23, 1999
Before ERVIN, WILKINS, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Phillip A. Ward, Appellant Pro Se. Rory Lee Perry, II, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Phillip Ward appeals the district court's order denying his petition
filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999). We deny
a certificate of appealability and dismiss.
On May 3, 1987, Carol Carter, a night manager at a Wendy's res-
taurant in Huntington, West Virginia, was brutally murdered during
a robbery of the store. According to the evidence presented at Ward's
trial, Carter was working at the Wendy's restaurant during the late
evening and early morning hours. Ward was also working at the store
that evening. Although his shift ended at 11:30 p.m., Ward and
another employee, Craig Sigler, returned to the store at midnight and
knocked on the store window until Carter, recognizing them,
unlocked the door and let them in. Sometime later, at approximately
12:30 a.m., Sigler and Ward left the restaurant, and Carter locked the
door behind them. As Sigler pulled from the parking lot he noticed
that Ward had not entered his car, but was still standing in the lot,
leaning up against his car.
The next morning, a store manager arrived at the Wendy's at 5:45
a.m. and noticed that Carter's car was still in the parking lot. Inspec-
tion of the immediate area revealed a key ring with a key to the store
lying on the ground near the front door. Finding the door unlocked,
Wendy's representatives contacted the police and waited for their
arrival prior to entering the store.
Inside the restaurant, police found a wad of blood-soaked clothing
atop a food preparation table; papers scattered about the office; an
empty safe; and a large amount of blood on the floor, around the safe,
on the safe, in the safe, on the walls, and on the light switches. A trail
of blood also ran from the kitchen area to the front of the store. An
attempt had been made to wipe up part of the blood, and a female
manager's tie was found entangled within a janitorial mop.
Approximately $1350 in cash, including approximately $60 in
coins, was taken from the safe. Carter's body was found about forty
2
yards from the Wendy's store, near a riverbank behind an adjacent
building. She had been bludgeoned to death. She was clad only in a
pair of tennis shoes, the tongues of which were partially curled up in
the shoes, and a windbreaker, the snaps of which were improperly
fastened. The medical examiner estimated the time of death to be
between midnight and 2:00 a.m., and testified that Carter could have
traversed the distance from the store to the riverbank on her own prior
to a final blow that resulted in an extensive fracture of her skull.
At 6:40 a.m. that same day, Karen Spoor, an employee of the Hun-
tington Work Release Center (HWRC) saw Ward, a participant in a
prison work release/furlough program through the HWRC, at an area
gas station. When she asked Ward why he was not at home as
required by the program, Ward responded that he had been called
back into work because his employer wished to speak with him.
Spoor told Ward that she had seen police vehicles at the Wendy's and
instructed him to call her as soon as he left the store per HWRC regu-
lations.
Ward did not comply with this instruction. Instead, he and his girl-
friend visited a music electronics shop where, despite evidence of
prior financial difficulties, Ward purchased a $219.29 car stereo sys-
tem with cash, in small bills. He also paid the $52.50 installation fee
in cash, drawing the amount from a large stack of bills. Ward's girl-
friend thereafter visited the power company and paid off an overdue
bill of $200.67 in cash. A power company employee testified that,
upon inspection, several of the bills appeared to be blood-stained.
As 5:00 p.m. approached, Ward contacted the HWRC from his
mother's house and was instructed to remain at the house until an
HWRC administrator arrived. Following the administrator's arrival
and initial questioning of Ward, Ward excused himself momentarily,
and went upstairs. The investigator became suspicious when Ward did
not return within a few minutes, and upon investigation of the upstairs
area, discovered that Ward had fled.
Ward was apprehended shortly after this discovery, and as he was
being handcuffed by correctional officers he was overheard mention-
ing something about his keys. In response to this statement, Ward's
mother took his car keys, opened his car, and retrieved a stack of
3
unfolded bills approximately one half of an inch thick from a console
in the front seat. When Ward was later turned over to the sheriff's
office, his wallet was found to contain a five dollar bill that was
blood-stained.
A backpack containing items belonging to Ward was later discov-
ered in a garbage can next to a neighbor's house. Inside the backpack,
police found approximately thirty-five one dollar bills, $60 in change,
wrapped in Wells Fargo wrappers,1 and a figurine bearing the name
of Ward's girlfriend and containing an additional $740 in cash. Testi-
mony from police serologist Fred Zain revealed that some of the
money recovered from Ward and the power company was stained
with blood matching that of Carter and Ward. Based on the foregoing
evidence, Ward was convicted of Carter's murder and sentenced to
life imprisonment without the possibility of parole.
Following an unsuccessful motion for a new trial based upon an
alleged Brady2 violation, and Ward's subsequent direct appeal, it was
discovered that police serologist Zain falsified his credentials and "en-
gaged in a pattern and practice of misconduct [that] completely under-
mined the validity and reliability of any forensic work he performed
or reported." Matter of Investigation of W. Va. State Police Crime
Lab., Serology Div., 438 S.E.2d 501, 504 (W. Va. 1993) [Crime
Lab.]. As a result, the state supreme court held that all of Zain's work
was presumptively invalid and that all persons convicted as a result
of his testimony or work were permitted to challenge their convictions
on the basis of newly discovered evidence.
Ward launched such a challenge. In review of his petition, the state
court found that despite Zain's testimony that he performed the test-
ing in Ward's case, the work was actually performed by two troopers
whose work was not called into question--Smith and Myers. Accord-
ingly, the court found that the serology evidence in Ward's case was
not affected by Zain's misconduct or by his testimony at trial. In addi-
tion, the court found that even if the serology evidence was excluded,
there was sufficient evidence to convict Ward of the murder. Ward
thereafter filed another state habeas petition raising additional claims.
_________________________________________________________________
1 Wendy's change is wrapped in Wells Fargo wrappers.
2 Brady v. Maryland, 373 U.S. 83 (1963).
4
Following the denial of this petition, Ward filed a§ 2254 petition
in federal district court. As part of this petition, Ward presented newly
discovered evidence that seriously called into question the veracity
and credibility of police serologist Smith. The district court noted that
this claim was unexhausted, but determined that exhaustion was
unnecessary because the state court had made the alternative finding
that even absent the blood evidence, the evidence against Ward was
sufficient. Applying the deferential standard of review set forth in 28
U.S.C.A. § 2254 (West 1994 & Supp. 1999), the district court stated
that although it would have granted Ward's petition under the prior
standard, it was "force[d]" to deny Ward's petition under the current
standard. Specifically, the court stated:
[D]eference has emerged as the most fundamental under-
lying concept of federal habeas review. The inevitable
impact of such a heightened deferential standard is that the
federal court's capacity to review a habeas petition is
reduced to the level of a rubber stamp that must dismiss a
habeas petition unless the state court's findings stretch
beyond the reason of any reasonable jurist. The heightened
deference standard effectively precludes the granting of a
federal habeas petition even in cases where a writ would be
warranted under the pre-AEDPA's non-deferential review
standard. Such is the result in this case.
The district court discussed the serology claims in light of this stan-
dard and, although it found them troublesome, ultimately concluded
that a reasonable jurist could agree with the state court's determina-
tion. Applying this standard to the rest of the claims, the court dis-
missed them without discussion, and granted the State's motion for
summary judgment. Ward appeals this judgment, raising several
assignments of error.
This Court reviews a grant of summary judgment de novo. See
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). Summary judgment is properly granted when there are no
genuine issues of material fact and when the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reason-
5
able inferences are to be drawn in favor of the non-moving party. See
Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).
I. Standard of review
Ward first argues that the district court erred in holding that federal
courts must accord a state court's fact finding process a greater degree
of deference than its interpretation of federal law, and asserts that
such a holding undermines this Court's decision in Green v. French,
143 F.3d 865 (4th Cir. 1998), cert. denied, ___ U.S. ___, 67 U.S.L.W.
3436 (Jan. 11, 1999) (No. 98-7096). He is mistaken.
Section 2254 provides the following regarding a state court's fac-
tual findings:
In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judg-
ment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.
§ 2254(e)(1). The district court quoted this precise language in its
memorandum and applied it, as written, to Ward's case. Moreover,
this language, and the district court's use of it, does not conflict with
this Court's holding in Green. We therefore find this claim to be with-
out merit.
Ward next asserts that the statutorily mandated deference to state
court factual findings prevents federal courts from considering the
underlying procedure in which those factual findings were made. This
argument again ignores the plain language of the statute, which pro-
vides that a petitioner may rebut the presumption of correctness.
Arguably, one way in which this may be accomplished is by demon-
strating that the state proceedings were procedurally flawed. Ward
attempts to demonstrate such a flaw by arguing that the West Virginia
Supreme Court of Appeals erred in setting the standard of review for
the Zain/serology issues.
6
Specifically, Ward argues that the serology claim involves consti-
tutional error, and that the state supreme court, in setting forth the
standard of review for all cases raising challenges as a result of Zain's
testimony, improperly employed a standard for nonconstitutional
error. Review of the record and the state court's opinion in Crime
Lab. reveals that the court properly recognized the constitutional sig-
nificance of the issue, noting that it is a violation of due process for
the state to convict a defendant based on false evidence. See Crime
Lab., 438 S.E.2d at 504 (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)). Drawing from Supreme Court precedent in Napue, Giglio,3
and Brady, the West Virginia Supreme Court of Appeals determined
that "it matters not whether a prosecutor using Trooper Zain as his
expert ever knew that Trooper Zain was falsifying the State's evi-
dence. The State must bear the responsibility for the false evidence.
The law forbids the State from obtaining a conviction based on false
evidence." Crime Lab., 438 S.E.2d at 505. The court then properly
recognized that a conviction obtained on the basis of false evidence
will be set aside only if it is shown that the false evidence had a mate-
rial effect on the jury verdict. After examining several materiality
tests, the court finally settled on the following, three-part test for
reviewing courts to employ in analyzing Zain challenges:
(1) the inadmissible evidence must be removed from the
State's case and a determination made as to whether
the remaining evidence is sufficient to convince impar-
tial minds of the defendant's guilt beyond a reasonable
doubt;
(2) if the remaining evidence is found to be insufficient,
the error is not harmless;
(3) if the remaining evidence is sufficient to support the
conviction, an analysis must then be made to deter-
mine whether the error had any prejudicial effect on
the jury.
Id. at 506.
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3 Giglio v. United States, 405 U.S. 150 (1972).
7
We conclude that the West Virginia Supreme Court of Appeals set
forth the proper standards to be applied in reviewing Zain/serology
claims. Regrettably, Ward's state habeas court does not appear to
have applied this standard, but instead stopped at step one of the pro-
cess, and determined that the remaining evidence was sufficient with-
out ever conducting an inquiry into whether the error had any
prejudicial effect on the jury. Given this error, the district court's def-
erence to the state court's decision was arguably improper. Notwith-
standing this potential error, we conclude that the district court's
ultimate decision was correct.
In reaching this determination, we start from the premise that a
conviction must be reversed if "there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury."
United States v. Agurs, 427 U.S. 97, 103 (1976) (providing standard).4
The Supreme Court refined this standard in Kyles v. Whitley, 514 U.S.
419 (1995), explaining that "[t]he question is not whether the defen-
dant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, under-
stood as a trial resulting in a verdict worthy of confidence." Id. at 434.
The Court further emphasized that it was not a sufficiency issue, but
rather an issue of whether all of the "favorable evidence could reason-
ably be taken to put the whole case in such a different light as to
undermine confidence in the verdict." Id. at 435. Review of the record
reveals that Ward cannot meet this standard.
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4 Although this Court has not explicitly stated that the "any reasonable
likelihood" standard is more "defense-friendly" than the "reasonable
probability" standard of Brady, most circuits have so held or suggested
as much in dicta. See United States v. Steinberg , 99 F.3d 1486, 1490 (9th
Cir. 1996); United States v. Gonzales, 90 F.3d 1363, 1368 n.2 (8th Cir.
1996); United States v. Alzate, 47 F.3d 1103, 1109-10 (11th Cir. 1995);
Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993); United States
v. O'Dell, 805 F.2d 637, 641 (6th Cir. 1986); United States v. Kluger,
794 F.2d 1579, 1582 n.4 (10th Cir. 1986); United States v. Jackson, 780
F.2d 1305, 1309 (7th Cir. 1986); but see United States v. Boyd, 55 F.3d
239, 245 (7th Cir. 1995). This Court has also suggested that the two stan-
dards might differ, see United States v. Sutton , 542 F.2d 1239, 1242 &
n.3 (4th Cir. 1976), but explicitly reserved the question in United States
v. Kelly, see 35 F.3d 929, 936 n.10 (4th Cir. 1994).
8
Recapping the permissible evidence, Ward, Carter, and Sigler were
alone at the Wendy's store until approximately 12:30 a.m. on the
morning of the murder. Sigler testified that he and Ward left the store
together and that Carter locked the door behind them. As Sigler left
the parking lot, he noticed that Ward was still standing in the lot,
leaning against his car.
During the robbery, approximately $1350, including a substantial
amount of change in Wells Fargo wrappers, was taken from the store.
Later on that day, Ward, previously in financial distress, bought a car
stereo system in cash, and his girlfriend paid off a large, overdue
power bill. Following Ward's flight from HWRC authorities, a large
amount of cash was also recovered from his car. A backpack, belong-
ing to Ward, was later discovered to contain a large amount of cash
concealed within a figurine belonging to Ward's girlfriend. Notably,
the backpack also contained the approximate amount of change
believed to have been stolen from the Wendy's store, and this change
was packaged in Wells Fargo wrappers. In addition, some of the
money recovered from Ward and the power company was stained
with what appeared to be blood. According to the testimony of the
Wendy's store manager, blood was found both on and inside the store
safe. Finally, Ward's paycheck, along with those of all other store
employees, was found at the Wendy's store following the murder, and
thus the aforementioned cash was not received as part of his salary.
While the serology evidence was no doubt compelling, we find that
the above-detailed evidence presents a clear picture of guilt beyond
a reasonable doubt, and that there is no reasonable likelihood that the
jury would have acquitted had it received only this foregoing account
of events. See Agurs, 427 U.S. at 103. The addition of the serology
evidence serves only to remove all doubt from the issue, a burden that
the state need not carry in order to convict. Accordingly, we conclude
that the district court's dismissal of this claim was appropriate regard-
less of the potential error in the state court's decision.
II. Brady violations
Ward also asserts that the district court erred in finding that he
failed to present a colorable Brady violation. Ward's argument in this
regard centers on the later-discovered fact that two of the bills tested
9
for blood evidence were found to contain a third blood type belonging
to neither Ward nor the victim.
Review of the record reveals that Ward did not present this claim
to the state courts. Although he claims that it is newly discovered evi-
dence that he did not learn of until after filing his § 2254 petition, the
state records reveal that this information was known to Ward during
his state habeas petition. Accordingly, it is unexhausted, and were
Ward to attempt to bring this claim now he would be barred by West
Virginia law. The claim is therefore not properly preserved for federal
review. Further, even were this Court to grant Ward the extraordinary
relief he seeks and review this claim despite its non-exhausted status,
there is no Brady violation.
A defendant must prove three elements to establish a due process
violation under Brady: (1) the prosecution withheld or suppressed evi-
dence; (2) the evidence is favorable; and (3) the evidence is material
to the defense. See Moore v. Illinois, 408 U.S. 786, 794-95 (1972).
Evidence is material when there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceed-
ing would have been different. A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome. See United
States v. Bagley, 473 U.S. 667, 682 (1985).
Even assuming that the evidence at issue satisfies the first two ele-
ments of the Brady test, Ward is unable to satisfy the third. At the
very most, evidence of an additional blood type reveals only that
another person was present during the murder--it does not detract
from the fact that Ward's and Carter's blood types were found on the
money. Further, Ward was convicted under a felony murder theory.
Thus, even if there was an accomplice who actually committed the
murder, Ward would still be criminally responsible for the killing. We
therefore find that the withheld evidence does not create the "reason-
able possibility" of a different result. See Kyles, 514 U.S. at 434.
III. Single habeas proceeding
Ward asserts that the district court erred because it "fail[ed] to con-
sider the collateral effect of all undisclosed evidence in one joint
habeas corpus," and contends that all of his alleged Brady violations
10
should have been resolved in one proceeding because, under Kyles,
the materiality element of Brady requires that suppressed evidence be
considered collectively, rather than item by item. See Kyles, 514 U.S.
at 436. He particularly argues that in denying his claim that an excul-
patory witness was withheld in violation of Brady, the state appellate
court relied heavily on the blood evidence later found to be unreliable.
We find that review of all the alleged errors in a single proceeding
would not have yielded a different result as Ward contends. More-
over, as discussed in the previous section, Ward never raised the issue
of the third blood type to the state courts, and thus it is his own error
that resulted in part of the piecemeal review of which he now com-
plains. As to the Brady claim raised on direct appeal, we disagree
with Ward's assertions that the state court relied heavily on the blood
evidence in disposing of this claim and that a different result would
have inured had the Zain issues been discovered prior to that appeal.
The facts regarding this Brady claim involve the State's failure to
inform Ward of a witness who saw a man inside the Wendy's store
shortly before the murder was believed to have taken place. The man
the witness described did not match Ward's appearance. According to
this witness, she rode past the Wendy's store at some time after 12:20
a.m.5 As the driver of the car stopped at a traffic light, the witness
looked out the passenger window and saw a white male in his late
twenties with dark hair sitting at a table in the dining room. Although
the witness could not recall if the lights in the store were on, she testi-
fied that the man had a mustache, was wearing long pants, and was
slightly overweight.6 The witness reported at least part of her observa-
tions to the police the following day, and was told that someone
would be in touch with her. She was not contacted again until after
the completion of the trial.
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5 It was later determined that this witness did not "clock out" from her
place of employment until 12:39 a.m.
6 Oddly, the driver of the car in which the witness was a passenger tes-
tified during the state hearings that the witness told her that she saw a
black male in the restaurant, and that when Ward's picture was displayed
in the media a few days after the murder, the witness stated that Ward,
who is black, looked like the man she had seen in the restaurant.
11
At a hearing on Ward's motion for a new trial, the State explained
that although this information was in their possession, they were
unaware of it. A police officer testified that investigators believed that
the individual seen by the witness, described only as a male with short
brown hair, was Craig Sigler, the Wendy's employee who admitted
and testified to being in the store with both Ward and Carter at 12:30
a.m., and stated that as he left, Ward was still in the parking lot.
Accordingly, they did not follow up on the witness' call. Although
there appeared to be some discrepancy between the time the witness
would have seen the white male in the restaurant and the time Sigler
testified that he left, the overall difference was only in the area of fif-
teen minutes.
Following the new trial hearing, the state court concluded that there
was no Brady violation because Ward could not demonstrate that the
new evidence would have caused the jury to reach a different result.
It therefore denied his motion for a new trial. While this language
suggests a higher standard than the "reasonable probability" standard
articulated in Bagley, this issue was relitigated on direct appeal, where
the West Virginia Supreme Court of Appeals employed the appropri-
ate standard and determined that there was no "reasonable probabil-
ity" of a different result had this evidence been presented to the jury.
Although this conclusion may have relied upon the later-questioned
blood evidence, there is no indication, as Ward contends, of "heavy"
reliance on that evidence. Moreover, even were the blood evidence
claims and this potential Brady violation raised in the same proceed-
ing, we conclude that the same result would obtain. As summarized
above, the jury would then have learned that Ward, Carter, and Sigler
were alone at the Wendy's store until approximately 12:30 a.m. on
the morning of the murder, and that when Sigler left the lot, Ward
was still standing in the parking lot leaning against his car. During the
robbery, approximately $1350, including a substantial amount of
change in Wells Fargo wrappers, was taken from the store, and later
that day, Ward, previously in financial distress, bought a car stereo
system in cash, and his girlfriend paid off a large and overdue power
bill with blood-stained currency.
Further, following his flight from HWRC authorities, a large
amount of cash was also recovered from Ward's car, and a five dollar
12
bill, also stained with blood, was found in his wallet. In addition, a
backpack belonging to Ward was found to contain a large amount of
cash concealed within a figurine belonging to Ward's girlfriend. This
backpack also contained the approximate amount in change believed
to have been stolen from the Wendy's store, packaged in the same
wrappers in which Wendy's change is packaged. Relevant to the
appearance of blood on some of the aforementioned currency, the
Wendy's store manager testified that blood was discovered both on
and inside the store safe. Finally, Ward's paycheck, along with those
of all other store employees, was found at the Wendy's store follow-
ing the murder, and thus the aforementioned cash was not received as
part of his salary.
Given this evidence, we conclude that there is no reasonable proba-
bility that had the jury learned the additional fact that Sigler might
have been in the restaurant for up to fifteen minutes longer than he
indicated, a different verdict would have resulted even if the jury had
not heard the serology testimony. Accordingly, Ward's claim regard-
ing a single habeas proceeding was properly denied.
IV. Ineffective assistance of counsel
Ward next argues that the district court erred in accepting the state
court's determination that his counsel was not ineffective when he:
a. failed to make specific objections to the State's pro-
posed jury instructions;
b. failed to challenge the composition of the grand jury, its
procedure, or obtain its minutes;
c. permitted past criminal behavior to be introduced into
evidence;
d. failed to call Ward as a witness;
e. failed to strike from the jury individuals who knew the
judge, a testifying police officer, and the victim;
f. failed to include Ward's uncle on the witness list;
13
g. failed to investigate and prepare a proper defense, intro-
duce evidence, or call Ward as a witness; and
h. allowed his uncle to remain in the courtroom despite a
sequestration order, resulting in the court's decision that
he could not testify.
As the district court noted, without discussion, all of these claims
were considered and rejected by the state courts, and the state courts'
decisions in this regard were neither contrary to, nor an unreasonable
application of, clearly established federal law.
To succeed on a claim of ineffective assistance of counsel, a defen-
dant must show: (1) that his counsel's performance fell below an
objective standard of reasonableness; and (2) that counsel's deficient
performance was prejudicial. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984). Under the first prong of Strickland, a defendant
must demonstrate that counsel's performance fell below an objective
standard of reasonableness under "prevailing professional norms." Id.
at 688. In evaluating counsel's performance, courts must "indulge a
strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance." Id. at 689. Further, courts must
not engage in hindsight; rather, they must evaluate the reasonableness
of counsel's performance within the context of the circumstances at
the time of the alleged errors. See id. at 690.
To satisfy the second prong of Strickland, a defendant must dem-
onstrate 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. "A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome." Id. However, a court
cannot grant relief solely because the outcome would have been dif-
ferent absent counsel's deficient performance. See Lockhart v.
Fretwell, 506 U.S. 364, 369-70 (1993). Instead, a court can only grant
relief under the second prong of Strickland if the "result of the pro-
ceeding was fundamentally unfair or unreliable." Id. at 369.
Addressing claim (a), Ward asserts that his attorney's decision to
lodge only a general objection to the jury instructions, rather than spe-
cific objections, resulted in several instructions not being preserved
14
for appeal other than for plain error review. Ward fails, however, to
assert which instructions contained error, and therefore has not satis-
fied his burden under Strickland.
Turning to claim (b), Ward has not demonstrated any suggestion of
error in the grand jury composition or proceedings. Rather, he states
only that he did not know that there was a grand jury until after he
was indicted, that he wanted to know who testified, and that he did
not know "[what was] wrong with it or not." This demonstrates noth-
ing more than simple curiosity regarding the proceedings and accord-
ingly we find that the attorney's failure to conduct a "fishing
expedition" on Ward's behalf neither constituted deficient perfor-
mance nor prejudiced Ward in any identifiable way.
In claim (c), Ward asserts that his attorney was ineffective for
allowing the fact that he was on work-release status to come before
the jury. Reviewing the record, we conclude that the state circuit court
correctly determined that testimony of Ward's work-release status
was mandated by the facts of the crime. The evidence of Ward's
flight, and the recovery of the currency from his car, were highly pro-
bative of his guilt, and this evidence could not be introduced while
keeping Ward's work-release status from the jury.
Turning to claim (d), that his attorney failed to call him as a wit-
ness, Ward has not stated what he would have testified to or how his
testimony would have aided his defense, and therefore he has again
failed to meet the standard imposed by Strickland. See, e.g., Brown
v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) (applying Strickland test to
allegation of attorney overriding defendant's desire to testify), cert.
denied, ___ U.S. ___, 66 U.S.L.W. 3556 (U.S. Feb. 23, 1998) (No.
97-7198).
Addressing claim (e), Ward states that his attorney was ineffective
for allowing certain individuals to remain on the jury. Specifically:
(1) juror Law, who worked in the courthouse and was therefore a nod-
ding acquaintance of the judge and various deputies; (2) juror Dun-
can, who knew Fred Zain, the police serologist whose work was later
discounted; and (3) juror Billups, who knew a testifying officer in the
case and went to high school with the victim. When questioned by the
court, each of these jurors stated that these relationships would not
15
impede their ability to be fair and impartial, and that they would
review the testimony of those with whom they were acquainted just
as they would that of any other witness. These statements are pre-
sumed to be true, and the jurors are therefore presumed to be impar-
tial. See Irvin v. Dowd, 366 U.S. 717, 723 (1961); Poynter by Poynter
v. Radcliff, 874 F.2d 219, 222 (4th Cir. 1989).
Juror Billups--who may have known both a testifying officer and
the victim--is the individual whose presence on the jury raises the
most concern, and hence we address his presence separately. Billups
stated only that the testifying officer lived in the same town as he did.
While this fact alone does not suggest so close a relationship with the
officer as to call Billups' impartiality into question, we note that Bil-
lups referred to the officer by an apparent nickname, suggesting more
than a passing familiarity. As to the victim, Billups stated that he went
to high school with her. No further inquiry was made as to how well,
or even if, he actually knew her. We note, however, that at the time
of her murder, Carter was twenty-four years old, and thus, presum-
ably, had been out of high school for several years.
The state habeas court did not address this particular ineffective
assistance of counsel claim, stating instead that it had already been
addressed on direct appeal. Review of the state court's decision on
appeal reveals that the court reviewed the underlying claim for an
abuse of discretion and found none. See State v. Ward, 424 S.E.2d
725, 737 (W. Va. 1991). The court also noted, however, that Ward's
attorney neither sought additional voir dire of these witnesses, nor
challenged them for cause. See id.While the state habeas court should have considered Ward's claim
of ineffective assistance of counsel in greater detail given the appel-
late court's statement regarding the absence of an objection, we find
that given Ward's failure to rebut the presumption of impartiality
afforded under Supreme Court precedent, the state appellate court's
decision was not contrary to clearly established federal law. Accord-
ingly, under the standard set forth in § 2254(d), we find that the dis-
trict court's dismissal of this claim was appropriate.
In claims (f) and (h), Ward asserts that his attorney was ineffective
for failing to include his uncle on the witness list given to the State,
16
and for allowing him to remain in the courtroom in violation of a
sequestration order, with the combined result that his uncle was not
allowed to testify. Ward argues that these failures were prejudicial
because his uncle would have testified that he loaned or gave him
$2000 a short time before the murder, explaining why Ward suddenly
had such a large amount of cash. While this argument appears con-
vincing at first, further investigation suggests that Ward is altering the
content of his uncle's proposed testimony to bolster his case.
At an in camera hearing, it was revealed that Ward's uncle would
testify to loaning him $300 in small bills of varying denominations.
At his state habeas hearing, however, Ward testified that his uncle had
given him $2000 and would have testified to this effect. The state
habeas court found this change of dollar amount to be suspect and
supportive of the trial court's determination that the uncle, having had
the benefit of hearing the evidence regarding the amount stolen, might
have tailored his testimony to conform to the defense position advo-
cated by Ward.
Moreover, even had Ward's uncle been allowed to testify, there is
not a reasonable probability that the result of his trial would have
been different. Had the uncle testified that he loaned Ward $300, the
testimony would not have explained the additional currency found in
Ward's car and his backpack. Had he testified that he loaned Ward
$2000, the testimony would not have explained why a large amount
of change, matching the amount likely taken from the Wendy's res-
taurant, and rolled in the same Wells Fargo wrappers used by the res-
taurant, was found in Ward's backpack. Accordingly, we conclude
that Ward cannot demonstrate prejudice under Strickland, and that the
state court's dismissal of this claim was therefore not contrary to
clearly established federal law.
Finally, addressing claim (g), Ward contends that his attorney did
not conduct a proper defense, introduce evidence, or call Ward as a
witness. The failure to call Ward as a witness has already been dis-
cussed. Turning to Ward's remaining claims, they center largely on
the attorney's failure to call a witness who Ward alleges saw him at
a gas station around the time the murder was believed to have taken
place. Because the time of the murder was given as sometime
between midnight and 2:00 a.m., Ward's presence at a gas station,
17
where he allegedly stayed only long enough to purchase two dollars'
worth of gasoline, is not sufficiently probative of innocence such that
the attorney's alleged failure to contact this witness was prejudicial
to Ward.
Ward also contends that his attorney should have proven, through
either receipts or store records, that a week or so prior to the murder
Ward purchased additional car stereo equipment from the same music
electronics employee who testified at trial as to Ward's purchase on
the date of the murder. According to Ward, such evidence would have
been beneficial because it would have served to impeach the witness,
who stated that he had not seen Ward prior to the day of the murder,
and because it would have demonstrated that he had sufficient funds
to purchase such equipment. Again, this information is highly specu-
lative, and Ward presents no evidence, other than his own assertion,
that he actually purchased any equipment other than that on the day
of the murder. We therefore find that he has shown neither prejudice
nor substandard performance in regard to this claim.
V. Conclusion
Having found the district court's disposal of all of Ward's claims
to be appropriate, we affirm the district court's order as to Ward's
claims regarding the serology evidence,7 and deny a certificate of
appealability and dismiss as to the remainder of Ward's claims. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
_________________________________________________________________
7 The district court granted a certificate of appealability as to these
claims.
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