Gray v. Netherland

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COLEMAN WAYNE GRAY,
Petitioner-Appellee,
v.
No. 94-4009
J. D. NETHERLAND, Warden,
Mecklenburg Correctional Center,
Respondent-Appellant.
COLEMAN WAYNE GRAY,
Petitioner-Appellant,
v.
No. 94-4011
J. D. NETHERLAND, Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.
On Remand from the United States Supreme Court.
(S. Ct. No. 95-6510)
Decided on Remand: October 31, 1996
Before WILKINSON, Chief Judge, and HALL and WILKINS,
Circuit Judges.
_________________________________________________________________
Remanded with directions by published opinion. Chief Judge Wilkin-
son wrote the opinion, in which Judge Hall and Judge Wilkins joined.
_________________________________________________________________
COUNSEL
James S. Gilmore, III, Attorney General of Virginia, John H. McLees,
Jr., Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellant. Donald R. Lee, Jr.,
FRAMME, MACAULAY & LEE, L.C., Richmond, Virginia;
Mark Evan Olive, VIRGINIA CAPITAL REPRESENTATION RE-
SOURCE CENTER, Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
This case comes before us on remand from the Supreme Court. We
must determine whether petitioner Coleman Wayne Gray raised a
claim of "prosecutorial misrepresentation" as to the nature of evidence
to be used during the sentencing phase of a capital murder trial. We
hold that this claim was not raised before either the state courts or the
federal courts prior to being raised before the United States Supreme
Court on certiorari. Accordingly, we remand this case to the district
court with instructions to dismiss the habeas petition.
I.
The facts of this case are discussed at length in earlier opinions.
See Gray v. Netherland, 116 S.Ct. 2074 (1996); Gray v. Thompson,
58 F.3d 59 (4th Cir. 1995); Gray v. Virginia, 356 S.E.2d 157 (Va.
1987). We therefore review them only briefly here.
On May 2, 1985, Gray and an accomplice, Melvin Tucker,
abducted Richard McClelland, the manager of Murphy's Mart in
Portsmouth, Virginia, as McClelland was driving away from work.
Gray and Tucker took McClelland's car and drove back to Murphy's
Mart, where they forced him at gunpoint to unlock the store. After
stealing between $12,000 and $13,000 in cash, the two drove McClel-
land to a remote side road. Gray then took McClelland behind the car
and ordered him to lie down. As McClelland pleaded for his life, Gray
fired six shots into the back of his head with a .32 caliber handgun.
After the killing, Gray and Tucker drove McClelland's car back to the
intersection where they had abducted him. Telling Tucker that he
wanted to destroy the car as evidence, Gray doused it with gasoline
and set it on fire.
2
On the first day of Gray's trial, Monday, December 2, 1985,
defense counsel asked the trial court to order the prosecution to reveal
evidence it planned to introduce during the penalty phase of the trial.
The Commonwealth Attorney responded that he intended to introduce
witnesses who would testify that Gray told them he had killed a
mother and daughter named Lisa and Shanta Sorrell. When defense
counsel pressed the Commonwealth Attorney on this issue, the prose-
cutor told defense counsel that he would not introduce other evidence
related to the Sorrell murders.
On Thursday, December 5, the jury convicted Gray on all counts.
That evening, the Commonwealth Attorney contacted defense counsel
and informed them that he would introduce additional evidence with
respect to the Sorrell murders. The additional evidence included testi-
mony by Detective Michael Slezak, who had investigated the Sorrell
murders, testimony by the state medical examiner who performed the
victims' autopsies, and photographs and forensic evidence from the
crime scene. The additional evidence would be put on to demonstrate
the striking similarity of the Sorrell murders to the murder of Richard
McClelland. Lisa Sorrell had, like McClelland, been killed by being
shot six times in the back of the head with a .32 caliber gun. Lisa Sor-
rel's body was found in her car, which, like McClelland's, had been
set on fire. Shanta Sorrell, her daughter, was found in the trunk of the
car and had died of smoke inhalation.
The following morning, Friday, December 6, the penalty phase of
the trial began. The defense moved for exclusion of the evidence of
the Sorrell murders on the grounds that it exceeded the scope of
unadjudicated-crime evidence admissible for sentencing under Vir-
ginia law. Counsel also argued that the additional evidence had taken
them by surprise and that they were not prepared to address it.
Defense counsel, however, never requested a continuance, and the
trial judge denied the motion to exclude.
The prosecution proceeded to put on the Sorrell murder evidence
and evidence of other crimes committed by Gray in order to demon-
strate Gray's "future dangerousness," an aggravating factor under the
Virginia death penalty statute. The jury fixed Gray's sentence at
death, finding the aggravating factors of both future dangerousness
and vileness to be present in his case. After a presentence hearing
3
held before the trial judge on January 27, 1986, the court entered
judgment on the verdicts for all the charges against Gray and sen-
tenced him to death. The Virginia Supreme Court affirmed Gray's
conviction and sentence, Gray v. Virginia, 356 S.E.2d 157, and the
U.S. Supreme Court denied certiorari. 484 U.S. 873 (1987). Gray then
instituted state habeas proceedings. The state habeas court dismissed
the petition, the Virginia Supreme Court summarily affirmed the dis-
missal, and the U.S. Supreme Court again denied certiorari, Gray v.
Thompson, 500 U.S. 949 (1991).
Thereafter, Gray filed the instant petition for a writ of habeas cor-
pus alleging numerous constitutional violations in both the guilt and
sentencing phases of his trial. Initially, the district court dismissed the
habeas petition finding Gray's claims to be either without merit or
procedurally barred. On Gray's motion, however, the district court
amended its judgment to consider whether "evidence during the pen-
alty phase pertaining to the Sorrell murders violated Gray's due pro-
cess rights." After an evidentiary hearing on this claim, the district
court granted Gray's habeas petition on the grounds that Gray "was
denied due process of law under the Fourteenth Amendment of the
United States Constitution because the Commonwealth failed to pro-
vide fair notice that evidence concerning the Sorrell murders would
be introduced at his penalty phase."
The Commonwealth then appealed to this court, arguing that the
district court's grant of the writ was based upon a new rule of consti-
tutional law in violation of Teague v. Lane, 489 U.S. 288 (1989). We
agreed, holding that Gray's notice-of-evidence claim"was not com-
pelled by existing precedent at the time his conviction became final."
Gray v. Thompson, 58 F.3d at 64. We reversed the judgment granting
the writ, rejected petitioner's cross-appeals from the dismissal of sev-
eral other claims, and remanded with directions that the petition be
dismissed. Id. at 67.
On January 5, 1996, the U.S. Supreme Court granted certiorari lim-
ited to the questions of whether Gray's notice-of-evidence claim
stated a new rule and whether the Commonwealth violated petition-
er's due process rights under Brady v. Maryland , 373 U.S. 83 (1963),
by withholding evidence exculpating him from responsibility for the
Sorrell murders. The Court found Gray's Brady claim to be procedur-
4
ally barred because it had not been raised in state habeas proceedings,
Gray v. Netherland, 116 S.Ct. at 2080-81, and agreed with this court's
holding that Gray's notice-of-evidence claim would require the adop-
tion of a new constitutional rule. Id. at 2084.
However, the Supreme Court also perceived Gray to be raising a
"``misrepresentation' claim, which alleges that the Commonwealth
violated due process by misleading petitioner about the evidence it
intended to use at sentencing." Id. at 2081. The Commonwealth
argued that the claim had never been "argued before in any court." Id.
at 2082. The Supreme Court remanded the case with instructions to
determine whether the misrepresentation claim had been previously
raised and to "consider the claim and preserved defenses as appropri-
ate." Id. at 2082-83. In order to assist our consideration of these mat-
ters, we directed the parties on remand to file supplementary briefs of
up to 35 pages and reply briefs of up to 10 pages in length.
II.
We begin by reviewing the nature of Gray's misrepresentation
claim. Gray's clearest statement of the claim appears in his brief
before the United States Supreme Court:
The narrow, central question presented in this case is
whether due process permits a prosecutor to misrepresent
the nature of the state's intended case in aggravation, with
the purpose and effect of denying the defendant the opportu-
nity to prepare and contest the critical issues at a capital sen-
tencing hearing.
Brief for Petitioner in Supreme Court at 30. Gray's claim does not
rest on the fact that the Commonwealth Attorney provided late notice
but rather alleges that Gray was damaged by the notice he did receive.
In particular, Gray alleges that the prosecution told him that he would
introduce only the testimony of jailhouse "snitches" pertaining to the
Sorrell murders when he intended all along to introduce crime scene
photographs, autopsy reports, Detective Slezak's testimony and the
like. Gray thus complains that the Commonwealth Attorney lulled
him into a false sense of security about the evidence that would be
presented at the penalty phase of the trial, thereby preventing an
5
investigation he might have otherwise undertaken into the Sorrell
murders:
Had Gray's request that the prosecution disclose what it
intended to present regarding the Sorrell murders been
denied, or had the prosecutor not stated that he intended to
present only jailhouse "snitch" testimony, then Gray's trial
counsel would have known that essentially anything was fair
game, and they would have adjusted investigation, prepara-
tion, and trial strategy accordingly.
Reply Brief for Petitioner in Supreme Court at 7.
With the nature of this claim in mind, we now turn to the question
of whether Gray properly preserved it. The general principles govern-
ing the preservation of constitutional challenges to state convictions
are well settled. "[A] claim for relief in habeas corpus must include
reference to a specific federal constitutional guarantee, as well as a
statement of the facts which entitle the petitioner to relief." Gray v.
Netherland, 116 S.Ct. at 2081. A statement of facts sufficient to sup-
port a constitutional claim without reference to the legal basis for that
claim is not sufficient. See Picard v. Connor , 404 U.S. 270, 277
(1971). When the appeal is to a constitutional guarantee as broad as
"due process," it is incumbent upon a habeas petitioner to refer to the
"particular analysis developed in cases" and not just to due process in
general in order to present his claim. See Gray v. Netherland, 116
S.Ct. at 2081 (citation omitted); see also Anderson v. Harless, 459
U.S. 4, 7 (1982). With these principles in mind, we shall examine the
record in accordance with the Supreme Court's instructions.
A.
We first review the state court proceedings. An examination of
Gray's claims in the state courts reveals that he failed to press this
misrepresentation theory as a distinct legal claim at any level -- from
his initial sentencing hearing on December 6, 1985 to his final appeal
to the Virginia Supreme Court from the dismissal of his state habeas
corpus petition.
6
Gray's first opportunity to raise his affirmative misrepresentation
claim was at the penalty phase of his trial on December 6, 1985 when
he presented his motion to exclude the Sorrell murder evidence
beyond the statements of Melvin Tucker. If Gray believed he had
been misled, he never indicated as much to the trial judge. Instead, he
focused on distinguishing his case from the rule in Virginia that "evi-
dence of prior unadjudicated criminal conduct . . . may be used in the
penalty phase to prove the defendant's propensity to commit criminal
acts of violence in the future." Watkins v. Commonwealth, 331 S.E.2d
422, 436 (Va. 1985). Gray also claimed that the evidence should be
excluded because he was surprised by the short notice provided by the
Commonwealth Attorney. Rather than claiming that he had been
tricked or affirmatively misled by the prosecution, Gray alleged that
the state had not complied with Peterson v. Commonwealth, 302
S.E.2d 520 (Va. 1983), which held that the "preferred practice" in
Virginia was for the Commonwealth to advise the defense of evidence
to be used in the penalty phase. Id. at 526.
Gray was given another opportunity to present his misrepresenta-
tion claim at his presentence hearing nearly two months later on Janu-
ary 27, 1986, and again he never even hinted at the misrepresentation
claim he now advances. At the presentence hearing, Gray continued
his attempt to distinguish Watkins and did not even raise lack of
notice as a basis for overturning his sentence. Gray's silence on the
misrepresentation claim continued during the twenty-one days
between the date his sentence was entered and the date it became
final. See Va. S. Ct. Rule 1:1.
Gray likewise failed to raise the misrepresentation claim on his
direct appeal to the Virginia Supreme Court. In his arguments on the
Sorrell murder evidence before that court, Gray again primarily con-
centrated on his attempt to distinguish his case from the rule in
Watkins. He also resumed his argument based on Peterson:
Pursuant to Peterson, Gray's counsel moved the Trial Court,
prior to the commencement of the guilt trial on December
2, 1985, to require the Commonwealth to reveal the Com-
monwealth's intended evidence should the penalty phase be
held. The Commonwealth withheld this information from
7
Defense Counsel until the late afternoon of December 5th,
1985, upon the conclusion of the guilt trial.
Brief on Direct Appeal to the Virginia Supreme Court at 3. Gray
argues that this paragraph squarely placed the issue of misrepresenta-
tion before the Virginia courts. We disagree. In this argument, Gray
does not allege that the Commonwealth Attorney's misrepresentation
that he would not use evidence beyond Gray's own statements caused
him injury. Rather, he states a claim that the Commonwealth did not
comply with the "preferred practice" of providing the defendant
notice of penalty phase evidence. In short, Gray's argument was one
that he had a constitutional right to notice of penalty phase evidence
which the state planned to use -- the very argument that the Supreme
Court held "would require the adoption of a new constitutional rule."
Gray v. Netherland, 116 S.Ct. at 2084.
We next examine Gray's arguments in his state habeas corpus pro-
ceedings. In Virginia, "[n]o writ [of habeas corpus] shall be granted
on the basis of any allegation the facts of which petitioner had knowl-
edge at the time of filing any previous petition." Va. Code Ann.
§ 8.01-654(B)(2). In Barnes v. Thompson , 58 F.3d 971 (4th Cir.
1995), we applied section 8.01-654(B)(2) as a bar to petitioner's
claim that the Commonwealth had failed to disclose exculpatory evi-
dence under Brady v. Maryland, upholding the Virginia Supreme
Court's finding that "all of the facts on which the current petition was
based were either known or available to the petitioner." Id. at 974(citation omitted). We applied the statute to similar effect in Stockton
v. Murray, 41 F.3d 920 (4th Cir. 1994), holding that a prisoner's
Brady claim was barred under section 8.01-654(B)(2) because the
prisoner "knew of, or could reasonably have discovered, the factual
bases" for his claims. Id. at 924. Indeed, the Supreme Court explicitly
relied on section 8.01-654(B)(2) in finding that Gray's Brady claim
was barred because he "knew the grounds of [that] claim when he
filed his first [state habeas] petition." Gray v. Netherland, 116 S.Ct.
at 2080-81.
Gray has presented no argument that he was unaware of the facts
that make up his misrepresentation claim at the time of the filing of
his state habeas petition. Indeed, he clearly would have had knowl-
edge of the facts supporting his misrepresentation claim as early as
8
the evening of December 5, 1985, when the Commonwealth Attorney
informed him that he would be introducing evidence at the penalty
phase of Gray's trial beyond Gray's own statements to Melvin Tucker
that he had committed the Sorrell murders. It is therefore clear that
if Gray failed to raise the misrepresentation claim at the time of his
first habeas petition, the procedural bar of section 8.01-654(B)(2)
would establish an adequate and independent ground for Gray's con-
viction and sentence, and thus would preclude our review of the mis-
representation claim on its merits. Teague, 489 U.S. at 298; see also
Barnes, 58 F.3d at 974.
The record yields no evidence that Gray raised his misrepresenta-
tion claim on his petition for habeas corpus in the Virginia courts.
Instead, Gray emphasized lack of notice as a basis for relief. In his
state habeas corpus petition, Gray states that "[t]he Commonwealth
did not disclose its intention to use the Sorrell murders as evidence
until such a late date that it was impossible for Gray's defense counsel
to reasonably prepare for its use." Petition for Writ of Habeas Corpus
in Virginia Circuit Court at 39. He does not, however, indicate that
he was somehow lulled or tricked by the Commonwealth Attorney's
initial indication that he would present only witnesses who would tes-
tify that Gray told them he had committed the Sorrell murders. The
closest he comes to making this claim is his assertion that the use of
the Sorrell evidence was "simply outrageously unfair and made a
mockery of Gray's rights to due process of law under the Fourteenth
Amendment . . . ." Id. at 40. This general reference to due process,
however, is much too vague to meet the specificity requirement of
Anderson v. Harless, 459 U.S. 4 (1982), and was inadequate to "pro-
vide the [Virginia] courts with a ``fair opportunity' to apply control-
ling legal principles to the facts bearing on his constitutional claim."
Anderson, 459 U.S. at 6, citing Picard, 404 U.S. at 276-77.
In his appeal to the Virginia Supreme Court from the dismissal of
his state habeas petition, Gray merely restated his lack-of notice claim
and asked the court to "reexamine [its] ruling in the [direct appeal] as
it relates to . . . the Sorrell murders." Petition Appealing Denial of
State Habeas Corpus Petition at 28. Nowhere in his arguments is there
anything resembling the misrepresentation claim Gray later pressed
before the U. S. Supreme Court.
9
A procedural default may only be excused on a showing of "cause
and prejudice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In
his briefs, Gray does not argue that he had any cause for not raising
his misrepresentation claim before the Virginia courts, and we find
none now. Even if Gray could show cause for his default, however,
he has failed to demonstrate that he was prejudiced by the Common-
wealth Attorney's allegedly misleading notice. In order to demon-
strate prejudice Gray would have to demonstrate that the allegedly
misleading notice "worked to his actual and substantial disadvantage,
infecting his [sentencing] with error of constitutional dimensions."
Barnes, 58 F.3d at 977, quoting United States v. Frady, 456 U.S. 152,
170 (1982).
At the heart of Gray's misrepresentation claim is the assertion that
he would have been able to discover various exculpatory evidence as
to Gray's involvement in the Sorrel murders if only he had been
informed of the full scope of the Commonwealth Attorney's evidence
on the Sorrell murders on December 2, 1985. Specifically, Gray
asserts that he would have more carefully researched evidence point-
ing towards Timothy Sorrell, Lisa Sorrell's husband, as the culprit in
those murders. The facts of this case, however, undermine Gray's
claim that he would have undertaken such an investigation. On the
evening of December 5, 1985, Gray became aware of the full scope
of the evidence that would be used against him in the penalty phase.
Almost two months passed between the penalty phase of his trial and
his presentence hearing on January 27, 1986. Another 21 days passed
between the time the judge entered his sentence and when the sen-
tence became final. Yet, during this period, despite the fact that Timo-
thy Sorrell's status as a suspect in the Sorrell murders was widely
reported in the local media even before the McClelland murder was
committed, Gray did not conduct the extensive investigation he
claimed he would have undertaken between December 2, 1985 and
December 6, 1985 if the Commonwealth Attorney had not "misled"
him. His failure to conduct an investigation into the Sorrell murders
when he had the opportunity indicates that the Commonwealth Attor-
ney's supposed misrepresentation concerning the scope of the Sorrell
murder evidence did not prejudice him.
In sum, Gray's misrepresentation claim was not raised at any point
in the state court proceedings. Further, Gray has failed to demonstrate
10
the combination of cause and prejudice that would excuse this proce-
dural default.
B.
We next turn to the federal record. Gray alleges that he raised his
misrepresentation claim in his federal habeas petition before the dis-
trict court and before this court in the earlier appeal. Furthermore,
Gray contends that the Commonwealth did not raise the procedural
bar of section 8.01-654(B)(2) in either forum. If Gray's contentions
are correct, the Commonwealth would have waived its right to raise
section 8.01-654(B)(2) as an affirmative defense to Gray's misrepre-
sentation claim. Jenkins v. Anderson, 447 U.S. 231, 234 n.1 (1980).
On the other hand, if Gray failed to raise the misrepresentation claim
in the earlier federal habeas proceedings, the Commonwealth may
assert the procedural bar and foreclose further consideration of Gray's
misrepresentation claim.
Review of the prior federal proceedings reveals no misrepresenta-
tion claim raised with the clarity required by Picard and Anderson.
In his federal habeas petition, Gray describes the legal grounds for his
claim with respect to the Sorrell murders in terms of inadequate
notice:
The Commonwealth did not disclose its intentions to use the
Sorrell murders as evidence against Gray until such a late
date that it was impossible for Gray's defense counsel rea-
sonably to prepare or defend against such evidence at trial.
Because of the late notice . . . Gray could not adequately
prepare to defend his innocence regarding the Sorrell mur-
ders.
Petition for Writ of Habeas Corpus at 21 (emphasis added). Further-
more, during a May 17, 1993 hearing on whether the district court's
initial judgment dismissing the petition should be altered or amended,
Gray's counsel described the Sorrell claim as being based on the fact
that "Mr. Gray's attorneys had essentially zero notice . . . of the fact
that this matter was going to be raised." (emphasis added).
11
The Commonwealth reasonably understood Gray to be raising a
claim of inadequate notice and characterized it as such when para-
phrasing Gray's claims in its Brief in Support of Motion to Dismiss
in the District Court. "Petitioner was given inadequate notice of the
evidence which the Commonwealth intended to introduce . . . ." Brief
at 18 (emphasis added). Gray would have us place emphasis on the
Commonwealth's use of the phrase "intended to introduce" and
argues that this phrase indicates the Commonwealth's understanding
that the claim was actually one of prosecutorial misrepresentation.
This tortuous interpretation of the Commonwealth's phrase ignores
the obvious emphasis on "inadequate notice" and does not begin to
approach the specificity required by Picard. The Commonwealth
understood the claim as we understand it -- that Gray had inadequate
notice of the evidence that the Commonwealth planned to introduce,
not that the Commonwealth deliberately misled him.
The district court, on Gray's motion, amended its initial judgment
dismissing Gray's petition and reconsidered the petition for habeas
corpus in order to determine whether "the admission of evidence dur-
ing the penalty phase pertaining to the Sorrell murders violated
Gray's due process rights." When the Commonwealth asked the dis-
trict court for a more refined definition of the issues at stake, the court
failed to provide one. Consequently, the Commonwealth reasonably
understood that the Sorrell evidence was being disputed on the
grounds raised by Gray in his petition -- lack of notice. Indeed, this
appears to have been the understanding of Gray's attorneys as well.
During an evidentiary hearing on the habeas petition, Gray's counsel
had an opportunity to question C. Phillips Ferguson, the prosecuting
attorney at Gray's trial. Gray's counsel did not question whether Fer-
guson had intentionally misled him as to the scope of the Sorrell mur-
der evidence but instead focused on issues such as the prosecutor's
understanding of his duty to disclose exculpatory evidence under
Brady v. Maryland.
The district court shared the understanding that Gray's legal claim
was based on lack of notice. In its opinion, the court clearly indicated
that it was granting the writ on the basis that Gray was "deprived of
fair notice." The court relied on cases such as Gardner v. Florida, 430
U.S. 349 (1977), and Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979),
which were cited by Gray in this court and in the Supreme Court to
12
support his lack-of-notice claim. Some of the district court's findings
could suggest that Gray had presented facts supporting a misrepresen-
tation claim. For example, the district court states, "Despite the Com-
monwealth Attorney's previous unequivocal pledge that the only
evidence to be introduced was certain statements made by Gray, Fer-
guson had arranged to present . . . additional evidence at the penalty
phase." Facts alone, however, without any articulation of the legal
grounds for a claim, are not sufficient to raise an issue before a court.
"[T]he petitioner must explain how those alleged events establish a
violation of his constitutional rights." Mallory v. Smith, 27 F.3d 991,
994 (4th Cir. 1994) (citation omitted). Gray failed to argue misrepre-
sentation as a legal basis for relief, see Picard, 404 U.S. at 276-77,
and it is unsurprising that the district court did not rule on that ground
when it granted the writ.
A review of Gray's arguments before this court on the Common-
wealth's appeal from the grant of the writ also fails to produce any
indication that Gray asserted a distinct misrepresentation claim.
Although Gray did raise facts which conceivably supported such a
claim, he did not argue misrepresentation on legal grounds. He thus
failed to alert the Commonwealth to the necessity of asserting any
affirmative defense of procedural default. Instead, Gray cited Gardner
and Smith v. Estelle to support his claim that the lack of notice by the
Commonwealth Attorney prevented him from having"a fair opportu-
nity to challenge the accuracy or materiality of the evidence presented
by the prosecution." Opening Brief for Petitioner-Appellee at 25.
Indeed, the cases cited by Gray in the Supreme Court to support his
recent misrepresentation claim, In re Ruffalo , 390 U.S. 544 (1968);
Raley v. Ohio, 360 U.S. 423 (1959); and Mooney v. Holohan, 294
U.S. 103 (1935), were never referenced by Gray before this court or
the district court prior to his appearance before the Supreme Court.
In our initial opinion in this matter, we made no reference to any
distinct claim of misrepresentation. See Gray v. Thompson, 58 F.3d
59 (4th Cir. 1995). Gray claims that he raised this argument, but the
court mistakenly overlooked it. If this is the case, it is difficult to
understand why Gray failed to raise this as a grounds for granting his
Petition for Rehearing. Instead, in his petition, Gray, as he did in his
initial briefs before this court, relied on inadequate notice as the legal
basis for his claim: "The crux of Gray's claim is that the Common-
13
wealth unfairly ambushed him by giving insufficient notice." Petition
for Rehearing at 1 (emphasis added). Gray's continued reliance on
lack of notice and his failure to raise misrepresentation as a distinct
legal claim before this court undercuts his contention that he vigor-
ously pressed misrepresentation in the first instance.
Throughout the proceedings prior to his appearance before the
United States Supreme Court, Gray never raised any legal claim of
misrepresentation. At best, he can point to oblique references to such
a theory and to scattered words such as "intentionally" and "ambush."
What Gray has failed to show is that the misrepresentation claim was
presented "face-up and squarely" to any court-- state or federal --
prior to the Supreme Court. Mallory, 27 F.3d at 995 (citations omit-
ted). The Supreme Court, however, is not the appropriate forum in
which to raise an issue for the first time. Yee v. Escondido, 503 U.S.
519, 533 (1992). Because we find that Gray failed to articulate his
misrepresentation theory prior to appearing before the Supreme
Court, we hold that the Commonwealth is free to maintain its defense
of procedural default under section 8.01-654(B)(2) and that Gray is
not entitled to relief.
III.
We remand this case to the district court with directions to dismiss
the habeas petition. In view of the Supreme Court's opinion remand-
ing the case to us, we think the respectful course is to stay both our
mandate and the execution until such time as the Supreme Court rules
on any petition for certiorari.
REMANDED WITH DIRECTIONS
14