Walker v. True

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARICK DEMORRIS WALKER, 
Petitioner-Appellant,
v.
 No. 04-22
PAGE TRUE, Warden, Sussex I State
Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-01-1196-A)
Argued: February 2, 2005
Decided: March 25, 2005
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Judge Williams joined. Judge Gregory wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Edward Nathan Siskel, WILMER, CUTLER, PICKER-
ING, HALE & DORR, L.L.P., Washington, D.C., for Appellant. Rob-
ert Quentin Harris, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee. ON BRIEF: David P. Donovan, WILMER, CUTLER,
2 WALKER v. TRUE
PICKERING, HALE & DORR, L.L.P., McLean, Virginia; David W.
Ogden, Lara Ann Englund, Eric J. Hougen, Kurt W. Meyers, WIL-
MER, CUTLER, PICKERING, HALE & DORR, L.L.P., Washing-
ton, D.C., for Appellant. Jerry W. Kilgore, Attorney General of
Virginia, Richmond, Virginia, for Appellee.
OPINION
LUTTIG, Circuit Judge:
Appellant Darick Demorris Walker was convicted by a jury of cap-
ital murder and sentenced to death in a Virginia state court. In his fed-
eral habeas petition, he challenges his death sentence on the grounds
that his trial counsel was ineffective for failing to investigate evidence
of the mitigating factor of mental incapacity due to organic brain dys-
function or mental retardation. We granted a certificate of appeala-
bility to review the district court’s dismissal of Walker’s habeas
petition. Because we conclude, as did the district court, that the state
court’s application of Strickland v. Washington, 466 U.S. 668 (1984),
was not unreasonable, we affirm.
I.
Based on the jury’s verdict, the Virginia Supreme Court found the
following facts surrounding Walker’s crimes. On November 22, 1996,
Walker kicked in Stanley Beale’s locked front door, and entered
Beale’s apartment yelling, "[W]hat you keep coming up to my door,
what you come looking for me for?" Walker v. Virginia, 515 S.E.2d
565, 568 (Va. 1999). When Beale told Walker that he did not know
who Walker was or where he lived, Walker began shooting at Beale
as the other residents of the apartment hid in another room. Id. Walker
shot Beale three times, killing him. Id.
On June 18, 1997, Walker kicked open the door to the residence
of Andrea Noble and Clarence Threat. Id. at 569. Walker hit Noble
with the gun and shot Threat in the leg. Id. After Walker and Threat
exchanged words, Walker began to shoot Threat again. Id. Walker
shot Threat a total of seven times. Threat died as a result. Id.
WALKER v. TRUE 3
Walker was indicted in Virginia state court for capital murder, for
four counts of the use of a firearm in the commission of a felony, and
for two counts of burglary. J.A. 301. After a jury trial, Walker was
convicted on all counts. J.A. 301.
Through the presentation of mitigating evidence at Walker’s sen-
tencing hearing, his trial counsel, Rebecca Norris, sought to establish
that Walker was not a future danger because he responded well when
placed in structured environments. J.A. 19-21, 296. She also
attempted to demonstrate that his family cared whether he lived or
died. J.A. 295. In support of her mitigation theory, Norris entered
Walker’s school records into evidence. Psychological reports included
in the school records described Walker as a "slow learner" or "very
slow learner," and suggested that he had a learning disability or atten-
tion deficit disorder. J.A. 151-53, 160, 203-05. Norris argued that the
records revealed that, despite Walker’s problems, his grades improved
when he was placed in special education classes. J.A. 296. Norris also
presented as witnesses Walker’s jailers, who testified that he was a
well-behaved inmate. J.A. 296. Finally, Norris presented Walker’s
family members, who testified about their affection for Walker. J.A.
296.
After a sentencing hearing, the jury recommended that Walker
receive the death penalty for capital murder, life imprisonment for
each burglary, and eighteen years of imprisonment for the firearms
offenses. J.A. 301. The trial court sentenced Walker in accordance
with the jury’s recommendation, id., and Walker’s sentence was
upheld on direct appeal. Walker v. Virginia, 515 S.E.2d 565 (Va.
1999), cert. denied, 528 U.S. 1125 (2000).
In his subsequent state post-conviction proceedings, Walker
claimed that his Sixth Amendment right to counsel was violated by
Norris’ unreasonable failure to investigate adequately possible indica-
tions of organic brain deficiency or mental retardation referenced in
a 1984 psychological examination. J.A. 238-40, 303. Walker argued
that Norris’ failure to investigate resulted in her failure to discover
and present evidence of Walker’s "severe mental impairment." J.A.
45. In support of his claim, Walker offered an affidavit from Dr. Scott
Sautter which described Walker’s brain dysfunction as "chronic" and
4 WALKER v. TRUE
concluded that his non-verbal judgment and reasoning were in the
first percentile. J.A. 233.
Walker’s claim thus relied principally on the 1984 psychological
evaluation, which was included in his school records. This report
described Walker as making an error that "is most commonly found
in protocols of individuals who are mentally retarded or who have
some type of organic deficiency," and as drawing a picture that "indi-
cate[d] either psychological regression with grossly impaired reality
contact or organic involvement." J.A. 167-69. The evaluation recom-
mended that Walker "receive a complete psychological evaluation in
one year to evaluate his intellectual development and to rule out
organic or psychotic disturbances that might be interfering with his
adjustment." J.A. 169.
Although she possessed this limited evidence of the mitigating fac-
tor of mental incapacity due either to mental retardation or to organic
brain dysfunction, Norris did not argue this mitigating factor to the
jury. She concluded that the evidence in favor of organic brain defi-
ciency was not likely to be persuasive, because there was only a sin-
gle suggestion of such a problem in all of Walker’s records, and
neither her court-appointed expert, nor the facts of the crime, nor the
testimony of witnesses supported that Walker suffered from such a
problem. J.A. 294. In addition, Norris believed that arguing organic
dysfunction would undermine the remainder of her mitigation strategy
by supporting the government’s argument that Walker would be a
future danger in prison. J.A. 294. Likewise, Norris did not present
evidence that Walker could possibly be mentally retarded because
Walker’s court-appointed psychologist, Dr. Randy J. Thomas,
informed Norris that, based on his tests, Walker had an I.Q. of 86 and
was thus not mentally retarded. J.A. 293.
Norris did not present as mitigating evidence the testimony of Dr.
Thomas. Norris later alleged, and the Virginia Supreme Court found,
that Dr. Thomas told Norris that he believed that Walker was a socio-
path. J.A. 239. Dr. Thomas did not consider the 1984 psychological
evaluation in reaching this conclusion, because Norris did not obtain
the school records that included that report until three days before
trial. J.A. 222. By the time Norris received these records, she had
already determined that Dr. Thomas’ belief that Walker was a socio-
WALKER v. TRUE 5
path would render him ineffective as a witness in mitigation, and had
thus removed him as an expert witness. J.A. 294. On post-conviction
review, the state court concluded that the delay in Norris’ receipt of
the records stemmed from the "recalcitrance of Walker and his
mother." J.A. 239.
The Supreme Court of Virginia rejected Walker’s ineffective assis-
tance claim on the merits, concluding that it "fail[ed] to satisfy the
‘performance’ prong of the two-part test set out in Strickland." J.A.
239-40. The Supreme Court of Virginia dismissed Walker’s petition
and the Supreme Court of the United States denied Walker’s petition
for writ of certiorari. Id.; Walker v. True, 534 U.S. 1003 (2001).
Walker then filed a petition for writ of habeas corpus in federal dis-
trict court, alleging numerous grounds for relief, all of which the dis-
trict court dismissed. J.A. 303-55. We denied a certificate of
appealability as to the claim relevant here, i.e., that trial counsel
unreasonably failed to investigate mitigating evidence regarding his
organic brain disorder or mental retardation. Walker v. True, 67 Fed.
Appx. 758, 763 (4th Cir. 2003). The Supreme Court thereafter
vacated our opinion and directed that Walker’s case be reconsidered
in light of Wiggins v. Smith, 539 U.S. 510 (2003). Upon remand to
the district court, the district court again dismissed Walker’s habeas
petition on the grounds that counsel’s failure to investigate was not
unreasonable. Walker appealed the district court’s dismissal of his
petition, and we granted a certificate of appealability to review Walk-
er’s Wiggins claim.
II.
The Virginia state court concluded that Walker was not entitled to
relief on his ineffective assistance claim because Norris had exten-
sively investigated possible mitigating evidence and presented a miti-
gation case to the jury based on tactical decisions that were the
product of that extensive investigation. J.A. 238-40; see also J.A.
527-28, 541. Because Walker’s claim was adjudicated by the state
court on the merits, he is entitled to a writ of habeas corpus only if
he satisfies the conditions set forth in 28 U.S.C. § 2254(d).1 As rele-
1
Walker argues that our review is not subject to the limitations of sec-
tion 2254(d) because the district court concluded that the merits of his
6 WALKER v. TRUE
vant here, section 2254(d)(1) permits the writ to be granted only if the
state court adjudication resulted in "a decision that was contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States."2
A decision is an "unreasonable application" of Supreme Court pre-
cedent under section 2254(d)(1) if "the state court identifies the cor-
rect governing legal principle from [the Supreme Court]’s decisions
but unreasonably applies that principle to the facts" of the case before
it. Wiggins, 539 U.S. at 520. Because the state court correctly identi-
fied Strickland as the governing law, we must determine whether its
application of Strickland was "incorrect or erroneous," and if so,
whether it was also "objectively unreasonable." Williams v. Taylor,
529 U.S. 362, 409-11 (2000). We review the district court’s conclu-
sion that the state court’s application of Strickland was reasonable de
novo. Hill v. Ozmint, 339 F.3d 187, 193 (4th Cir. 2003).
In order to establish a claim under Strickland, Walker must show
claim that defense counsel conducted insufficient investigation "do not
appear to have been addressed" by the state court. J.A. 337 n.17. While
the state court did not address this claim at length, it did describe the
claim and then note that the claim "fails to satisfy the ‘performance’
prong of the two-part test set out in Strickland." J.A. 239. The state
court’s disposition of a claim need not include extended analysis to qual-
ify as an "adjudicat[ion] on the merits" under section 2254(d). See 28
U.S.C. § 2254(d); Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en
banc).
2
Walker also contends that the Virginia Supreme Court incorrectly
determined that Walker’s recalcitrance caused the delay in Norris’
receipt of the school records and thus that Walker is entitled to relief pur-
suant to 28 U.S.C. § 2254(d)(2) (permitting habeas relief where the state
court’s adjudication of the claim "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."). As the district court recog-
nized, however, Walker did not present evidence to challenge the conclu-
sion that he and his mother delayed Norris’ ability to request the records.
J.A. 537. Thus, he cannot show that the state court’s determination that
his recalcitrance was the reason for the late receipt of the records was an
"unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2).
WALKER v. TRUE 7
both that his counsel was deficient and that the deficiency was prejudi-
cial.3 Norris’ performance was deficient only if her performance fell
below an objective standard of reasonableness as determined by com-
parison to "prevailing professional norms." Strickland, 466 U.S. at
688. In evaluating this prong, "judicial scrutiny of counsel’s perfor-
mance must be highly deferential." Id. at 689. Such deference applies
equally to Strickland claims that allege failure to investigate, such as
Walker’s:
[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchal-
lengeable; and strategic choices made after less than com-
plete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the cir-
cumstances, applying a heavy measure of deference to coun-
sel’s judgments.
Id. at 690-91.
In Wiggins, the Supreme Court, applying this passage from Strick-
land, rejected the contention that, if counsel has made a tactical deci-
sion not to present a particular type of evidence in mitigation, a
limited investigation into that mitigating evidence is per se reason-
able. Instead, the Court reasoned, it must be determined "whether the
investigation supporting counsel’s decision not to introduce [that miti-
gating evidence] . . . was itself reasonable."4 Wiggins, 539 U.S. at
3
Because we hold that counsel’s performance was not objectively
unreasonable, we do not reach the issue of prejudice.
4
Contrary to Walker’s contention, the Wiggins Court did not hold that
counsel’s decision not to present a particular type of mitigation evidence
is irrelevant to whether counsel must further investigate, but only that
counsel must have made an investigation sufficient to make a reasonable
decision regarding what evidence to present. See Wiggins, 539 U.S. at
521-22, 527.
8 WALKER v. TRUE
521-23 (emphasis in original). Additionally, of course, Strickland
requires that the "particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances." 466
U.S. at 690-91; see also Wiggins, 539 U.S. at 524-25.
Walker alleges that Norris’ performance was unreasonable because
she failed to further investigate the possibility of organic brain defi-
ciency, after the 1984 psychological report suggested at least the pos-
sibility of such.5 We disagree.
Norris performed a thorough investigation, including into mental
incapacity, prior to deciding not to conduct further investigation into
the possibility of organic deficiency. Norris thus possessed consider-
able information against which to evaluate the indications of possible
organic deficiency referenced in the 1984 psychological report.
Norris had investigated the particular mitigating factor of mental
incapacity in some detail. She had reviewed Walker’s school records,
which included several psychological reports, investigated the cir-
cumstances of the crimes, interviewed Walker’s family and Walker
himself, and consulted a court-appointed mental health expert, who
evaluated Walker’s mental capacity. Norris had asked Walker and his
mother to fill out a 26-page questionnaire (which was returned largely
incomplete). She had requested from Walker a list of mitigation wit-
nesses (which he did not provide). Though they did not exist, Norris
had looked for social services records. She had interviewed Walker’s
girlfriends, wife, mother, brother, cousins, uncle, church group leader,
5
Walker makes a half-hearted assertion that Norris’ investigation was
insufficient because of numerous steps that she did not take — such as
not interviewing relatives other than the list of relatives Norris provides,
and not acquiring records such as medical records and public housing
records. However, he does not explain what evidence most of these
records would have yielded, or why a reasonable attorney would have
acquired them in this case. Instead, he simply cites the affidavit of the
expert he acquired on habeas review, who alleges that such steps should
have been taken and would have revealed mitigating evidence. J.A. 108.
We therefore focus on the claim that Walker does outline in detail, i.e.,
his claim that Norris’ investigation into mental incapacity was insuffi-
cient in light of the 1984 psychological report.
WALKER v. TRUE 9
and former lawyers and jailers. Norris had considered interviewing
Walker’s in-laws and friends, but Walker’s wife had told Norris that
her parents would not help and that Walker’s friends were all "thugs"
and would not come near a courthouse. Norris also had obtained
church records and visited the houses in which Walker had grown up.
Finally, she had consulted a court-appointed mental health expert,
who had interviewed Walker and performed psychological testing.
J.A. 291-96.
At oral argument, Walker’s own counsel even conceded that Norris
had investigated many "potential pieces" of an investigation into men-
tal incapacity.
Paralleling her extensive investigation into possible mental inca-
pacity, Norris had undertaken a much broader mitigation investigation
as well. This investigation had led Norris to conclude that the fact that
Walker performed well in structured environments represented the
most effective mitigation possible. That Walker performed well in
such environments, Norris had determined, was apparent from Walk-
er’s school records. It was a fact that Norris had confirmed through
interviews with Walker’s jailers. J.A. 296.
In light of the information known to Norris through this extensive
investigation into mitigation, Norris’ decision not to pursue further
the possibility of organic brain deficiency was eminently reasonable.
In the first place, the 1984 report did not even conclude that
Walker had an organic brain deficiency. Instead, it only raised the
possibility of such and suggested that the possibility be "rule[d] out."
J.A. 168-69. In the face of this tentative observation of possibility,
Norris had amassed enormous amounts of information confirming, if
not that Walker was not mentally impaired, certainly that he was not
impaired to a degree that would be reasonably considered mitigating.
The particular manner in which Walker committed his crimes did
not support a persuasive argument of mental impairment at the time
of commission. J.A. 294. Of all the witnesses that Norris consulted,
none suggested that Walker had at any time before the murders
seemed to be uncontrollable. J.A. 294. Dr. Thomas’ independent eval-
uation of Walker, which concluded that Walker had an I.Q. of 86,
10 WALKER v. TRUE
contradicted the suggestion that he was mentally retarded. J.A. 293,
532. The remainder of the school records, including three psychologi-
cal reports, notably failed to suggest any possibility of mental retarda-
tion or organic brain dysfunction, instead labeling Walker only a
"slow learner." J.A. 151-53, 160, 203-05. Norris’ own interactions
with Walker did not suggest to her that he was mentally retarded. J.A.
293. Finally, the testimony of Walker’s family, Norris had concluded,
would not have supported an argument that Walker was somehow
brain damaged. J.A. 294-95.
Walker appears to contend that his organic brain deficiency would
have been mitigating precisely because it impairs his social skills and
judgment, causes abnormal thinking and reasoning, results in an
inability to experience emotions like a normal adult, and limits his
capacity to perform everyday tasks. See Br. of Appellant at 45-50.
Norris, however, had conducted a thorough investigation, through
which she learned of Walker’s ability to adapt to different environ-
ments, his interactions with others, his conduct surrounding the mur-
ders, and his mental capacities as evaluated by Dr. Thomas, and
discovered no evidence of any such impairments, or at least none to
an extent that would have reasonably be seen as mitigating.6 In other
words, even if Walker did have an organic brain deficiency, Norris
was already in possession of substantial evidence that tended to con-
firm that that deficiency did not manifest itself in such a way as to
permit a persuasive case in mitigation, if a case at all. Against the
backdrop of this information learned by Norris through her extensive
efforts to develop a case in mitigation, her decision not to reopen her
investigation based on the tentative observation in the school report
that organic deficiency should be ruled out, was both reasonable and
fully consistent with Wiggins.
It is not even clear that exceptionally zealous counsel would have
pursued the suggestion of an organic deficiency in Walker’s psycho-
logical report, in light of the information known to Norris through her
investigation. But, in any event, the Supreme Court has repeatedly
6
These investigative steps could reasonably have been expected to
reveal some of the problems that Dr. Sautter’s affidavit ascribes to
Walker, such as "impaired social reasoning and judgement" and "dys-
functional interpersonal relationships." J.A. 233-34.
WALKER v. TRUE 11
emphasized that "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." Wiggins,
539 U.S. at 533. A petitioner can always highlight some possible fur-
ther investigative action counsel could have taken; but "the reason-
ableness of an investigation, or a decision by counsel that forecloses
the need for an investigation, must be considered in light of the scar-
city of counsel’s time and resources in preparing for a sentencing
hearing and the reality that counsel must concentrate his efforts on the
strongest arguments in favor of mitigation." Byram v. Ozmint, 339
F.3d 203, 210 (4th Cir. 2003). Norris had examined a great deal of
evidence in mitigation, and believed that an argument that Walker
was unable to control his behavior would tend to support the govern-
ment’s argument that he constituted a future danger, rather than sup-
port the arguments in mitigation that she had decided upon. J.A. 294.
Norris decided to allocate her resources to building this mitigation
case, focused upon Walker’s family and Walker’s responsiveness to
structure, in light of her judgment that it was highly unlikely that a
persuasive case for mental incapacity existed. This decision was made
after extensive investigation into mitigation generally and the mitigat-
ing factor of mental incapacity specifically, and grounded in the real-
ization that the only evidence that any mental incapacity might even
exist was weak when weighed against the substantial evidence that
such incapacity either did not exist at all or did not exist to such an
extent that an effective case in mitigation could be built thereupon. It
was a decision well within the bounds of reasonableness.
Our conclusion that Norris’ performance was reasonable is con-
firmed by the considerable differences between her performance and
that of Wiggins’ counsel. Wiggins’ counsel had consulted only three
sources to prepare a mitigation case, none of which revealed detailed
information about Wiggins’ life history. Wiggins, 539 U.S. at 523.
First, counsel had arranged for a psychologist to conduct tests on
Wiggins, but the psychologist reported no evidence about Wiggins’
life history. Id. Second, counsel reviewed a presentence investigation
(PSI) report, which included a one-page summary of Wiggins’ "per-
sonal history," noting that he had spent much of his life in foster care
and that he described his background as "disgusting." Id. Finally,
counsel reviewed the records of the Baltimore City Department of
12 WALKER v. TRUE
Social Services documenting Wiggins’ time in foster homes, includ-
ing his physical and sexual abuse. Id.
The Court concluded that this investigation was insufficient to sup-
port counsel’s decision not to introduce evidence of Wiggins’ life his-
tory, as it gave counsel "only rudimentary knowledge of [Wiggins’]
history from a narrow set of sources." Id. at 524. Norris, in contrast,
consulted multiple sources to acquire a wide-ranging knowledge of
Walker and the crimes he committed.
The Supreme Court also held that Wiggins was entitled to relief
because counsel’s limited investigation uncovered evidence that Wig-
gins suffered a troubled childhood, and "any reasonably competent
attorney would have realized that pursuing these leads was necessary
to making an informed choice among possible defenses." Id. at 525.
Norris had no such evidence before her of possible mitigating factors
that she had not considered; instead, the evidence she failed to further
investigate concerned a mitigating factor, mental incapacity, that she
had already extensively investigated and found to be either not pres-
ent or not useful in mitigation.
We have recognized previously that Wiggins does not require that
the court grant the writ in cases in which, in contrast to Wiggins,
counsel has undertaken extensive investigation. See, e.g., Wilson v.
Ozmint, 352 F.3d 847, 864-65 (4th Cir. 2003) (distinguishing Wiggins
on the grounds that Wilson’s counsel performed a thorough investiga-
tion, even if counsel did not hire a social service worker to conduct
an extended family history investigation); Tucker v. Ozmint, 350 F.3d
433, 441 (4th Cir. 2003). As our review of Norris’ investigation
makes clear, this is such a case.
Finally, it is notable that, in contrast to Wiggins, there is no indica-
tion that Norris’ failure to investigate brain dysfunction any further
was anything other than a reasoned strategic decision. Cf. Wiggins,
539 U.S. at 526-27. Unlike the failure of Wiggins’ counsel to pursue
a coherent strategy that explained their investigation into mitigating
evidence, Norris’ approach at the sentencing hearing, where she intro-
duced the school records and presented testimony to support the fact
that Walker’s performance improved when he was placed in classes
WALKER v. TRUE 13
for learning disabled students, was fully consistent with her avowed
strategy of focusing on Walker’s responsiveness to structure.
Norris thus performed an investigation into mental incapacity that
was reasonable under all the circumstances, and substantially distin-
guishable from that in Wiggins. This is not to say that Norris’ investi-
gation definitively disproved the existence of an organic brain
deficiency; certainly it did not. It is only to say that no more than this
investigation was required in order for Norris’ performance to be reason-
able.7 Under these circumstances, the state court’s decision that she
was not ineffective was not an unreasonable application of Strickland.
III.
Walker argues that if we do not grant the writ of habeas corpus, we
must at least grant him an evidentiary hearing. The district court
denied Walker’s motion for an evidentiary hearing, and we review
this denial for abuse of discretion. J.A. 352-54, 542; Hill v. Ozmint,
339 F.3d 187, 193 (4th Cir. 2003).
A petitioner will not, absent the fulfilment of certain statutory
requirements, receive an evidentiary hearing in federal district court
7
Walker also alleges that Norris’ failure to commission a social history
report is contrary to ABA standards, rendering her performance per se
unreasonable and entitling him to relief. But the Supreme Court has
expressly held that the Strickland inquiry does not entail the application
of per se rules. See Strickland, 466 U.S. at 688 ("[T]he performance
inquiry must be whether counsel’s assistance was reasonable considering
all the circumstances. Prevailing norms of practice as reflected in Ameri-
can Bar Association standards and the like . . . are guides to determining
what is reasonable, but they are only guides."). Compare Kandies v.
Polk, 385 F.3d 457, 470 (4th Cir. 2004) (opinion of Gregory, J.) (refus-
ing to adopt a per se rule that counsel must hire a mitigation expert
because the Supreme Court has rejected any "rigid checklist" of require-
ments for defense counsel and because a mitigation expert is "by no
means the only manner through which defense counsel can thoroughly
investigate a defendant’s background"). Because Norris gathered exten-
sive information about Walker’s history from numerous sources, includ-
ing his family members and school records, her failure also to obtain a
social history report is not unreasonable.
14 WALKER v. TRUE
"if the petitioner ‘failed to develop the factual basis of a claim’ in
state court." Fullwood v. Lee, 290 F.3d 663, 681 (4th Cir. 2002)
(quoting 28 U.S.C. § 2254(e)(2)). Neither party suggests that the bar
of section 2254(e)(2) is implicated by this case. Although section
2254(e)(2) thus does not bar an evidentiary hearing, Walker is still not
entitled to such a hearing unless he "alleges additional facts that, if
true, would entitle him to relief." Id. (quoting McCarver v. Lee, 221
F.3d 583, 598 (4th Cir. 2000)). Walker must also satisfy one of the
six factors the Court identified in Townsend v. Sain, 372 U.S. 293,
312 (1963).8 See Fullwood, 290 F.3d at 681.
Here, Walker is not entitled to an evidentiary hearing because he
has not alleged any facts which, if true, would entitle him to relief.
Although he generally alleges that Norris’ investigation was not rea-
sonable and that her attempts to gather information were "limited and
inept," Walker does not dispute, and certainly offers no evidence to
contradict, Norris’ representations as to the specific steps she took to
investigate possible mitigating defenses.9 Instead, his most relevant
factual contentions allege only that Norris failed to take numerous
further investigatory steps that she does not allege she took; that she,
8
Those factors are as follows:
(1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported
by the record as a whole; (3) the fact-finding procedure
employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discov-
ered evidence; (5) the material facts were not adequately devel-
oped at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a
full and fair fact hearing.
Fullwood, 290 F.3d at 681 n.7 (quoting Townsend, 372 U.S. at 313).
9
The one fact alleged by Walker that is arguably inconsistent with Nor-
ris’ account of her investigation is that Norris did not diligently pursue
the receipt of the school records, and had the necessary information to
acquire the records earlier than she did. Because Norris did review the
records prior to trial, however, and reasonably concluded after reviewing
the records not to further pursue mental incapacity as a mitigating factor,
the timing of the receipt of the records is not relevant to the reasonable-
ness of Norris’ investigation.
WALKER v. TRUE 15
not he, was to blame for the delay in the receipt of the school records;
and that Dr. Thomas would have come to a different conclusion
regarding Walker’s mental capacity had he been presented with the
school records. Because we have concluded that the investigation into
mental incapacity recounted by Norris and not disputed by Walker
was reasonable, these facts, even if true, would not change our appli-
cation of Strickland. The district court thus did not abuse its discretion
in denying Walker an evidentiary hearing.
CONCLUSION
For the reasons stated, the judgment of the district court is
affirmed.
AFFIRMED
GREGORY, Circuit Judge, dissenting:
With new information can come new duties to investigate. The
issue here is not whether Walker’s counsel conducted an appropriate
initial investigation. Rather, it is whether, once this investigation
uncovered some evidence of organic brain dysfunction, Walker’s
attorney pursued this lead as would a reasonably competent and dili-
gent attorney. She did not, so I respectfully dissent.
One passage of the majority opinion succinctly captures the five
fundamental flaws in the purported reasoning of Ms. Norris, Walker’s
lead counsel. It states that she
(1) concluded that the evidence in favor of organic brain
deficiency was not likely to be persuasive, because there
was only a single suggestion of such a problem in all of
Walker’s records, and (2) neither her court-appointed
expert, (3) nor the facts of the crime, (4) nor the testimony
of witnesses supported that Walker suffered from such a
problem. In addition, (5) Norris believed that arguing
organic dysfunction would undermine the remainder of her
mitigation strategy by supporting the government’s argu-
ment that Walker would be a future danger in prison.
16 WALKER v. TRUE
Ante at 4 (citations omitted, numbers added). Close analysis of these
five claims (which are simply unquestioned restatements of Norris’s
version of things) reveals why Walker’s counsel’s conduct was both
deficient and prejudicial under Strickland and Wiggins.
First, Walker’s counsel could not have reasonably concluded that
an organic brain dysfunction argument was not likely to be persuasive
unless she had first fully investigated and diligently developed that
evidence. See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (rejecting
counsel’s "attempt to justify their limited investigation as reflecting
a tactical judgment not to present mitigating evidence at sentencing
and to pursue an alternative strategy instead"). Norris was put on
notice of Walker’s mental deficiencies by his school records, which
contained a psychiatric evaluation stating that he committed errors
that revealed "significant delays in perceptual motor development,"
J.A. 167, and that his visual-motor errors were "most commonly
found in protocols of individuals who are mentally retarded or who
have some type of organic deficiency." J.A. 168. This report also
revealed that Walker showed signs of "either psychological regression
with grossly impaired reality contact or organic involvement," and
recommended that Walker be tested again for organic or psychotic
disturbances. J.A. 169. Yet these were not the only references to
organic mental deficiencies. When Walker was in third grade, an edu-
cational diagnostician presaged the psychiatrist’s findings by noting
Walker’s inability to exercise fine motor-integration skills and copy
simple shapes and words. J.A. 150. A psychological examination
administered in 1982 revealed that Walker
• had a "severe deficit" in visual perception,
• exhibited "considerable difficulty differentiating essen-
tial from nonessential details in pictures (visual discrimi-
nation) as well as copying simple marks with speed and
accuracy,"
• "had a great deal of difficulty reproducing abstract block
designs," and, in fact, failed to complete a single design,
• "made numerous integration and rotation errors," and
WALKER v. TRUE 17
• rendered "extremely poor" drawings.
J.A. 152.
Once Norris received the school records, a new duty to investigate
arose. Purported time pressure — whoever caused it — can be no
excuse; a reasonable attorney would have at least asked for a continu-
ance. Instead, she scuttled an investigation that, according to Dr. Scott
W. Sautter, the neuropsychologist retained by Walker’s habeas coun-
sel to examine Walker, revealed that Walker suffers from
chronic and severely impaired right hemisphere mediated
skills, observed in childhood and manifested as impaired
complex attention required to shift problem solving strate-
gies as task demands changed, constructional and drawing
skills, non-verbal reasoning and social judgement leading to
emotional maladjustment and dysfunctional interpersonal
relationship.
J.A. 233. Specifically, Walker’s severe impairment resulted in:
"grossly intact" visual and auditory acuity, "severely deficient" visuo-
motor tracking, visual-spatial and constructional function, design
reproduction, writing skills, factual knowledge, and non-verbal
abstract reasoning and non-verbal visual learning. J.A. 231-32. Saut-
ter also diagnosed Walker with "chronic attention and learning dis-
abilities" and "impaired social reasoning and judgement." J.A. 234.
He stated that Walker’s "impaired non-verbal reasoning and judge-
ment certainly contributed to the sequence of events that led up to his
actions." J.A. 233; see generally J.A. 227-35. The capability and will
to follow new leads as they arise, even at a late date, are part of the
irreducible minimum for a constitutionally acceptable defense lawyer.
Norris failed to meet this minimum.
Second, Walker’s counsel cannot know whether her court-
appointed expert would have supported the existence of organic brain
dysfunction because he never tested for it and she never gave him the
evidence that would raise this probability.1 Dr. Thomas stated that he
1
Dr. Thomas interviewed Walker and administered an IQ test. Dr.
Sautter, however, noted that:
18 WALKER v. TRUE
"really need[ed] the school records," J.A. 136, and noted that his con-
clusions were subject to change "if further relevant information
becomes available to me." J.A. 221. Thomas also took care to include
in his report that, "[i]t should be noted that the defendant’s school
records have been requested, but not received at the present time."
J.A. 222. He never received them. In the face of this, the majority
states that by the time Norris received these records, she had already
determined that Dr. Thomas would not be a good witness. This is, of
course, just the kind of premature foreclosure of investigation that
Wiggins found inappropriate. Especially given Dr. Thomas’s request
for Walker’s school records and clear statement that his opinion was
subject to change, it was objectively unreasonable for Norris to
believe that Dr. Thomas could not have changed his opinion.
Third, the suggestion that "the facts of the crime" did not support
the idea that Walker suffered from organic brain damage can only be
called a red herring that distracts from the issue before us. Walker’s
crimes, while undeniably horrible, were certainly not intricate frauds,
sophisticated bank heists, or anything else that necessitated consis-
tently unclouded high-level thinking. They were simply brutal, inex-
plicable murders. I have no idea how kicking in two apartment doors
It is well known in the neuropsychological literature that IQ test-
ing alone is insufficient to evaluate brain dysfunction, because
one could have a normal IQ and yet be severely brain damaged.
Without a complete history of Mr. Walker’s school records, that
clearly document attention and learning disabilities that suggest
neurologic compromise in normal development, Dr. Thomas
may not have been able to fully appreciate the extent of probable
brain dysfunction and its contribution as mitigating factors.
J.A. 227.
Indeed, the absence of school records undermines Thomas’s purport-
edly unalterable diagnosis that Walker was a "sociopath." Dr. Sautter
found "no evidence of antisocial personality disorder, or attempts to
manipulate the examiner," and notes that "[w]ithout documentation of a
conduct disorder as a child a diagnosis of antisocial personality disorder
cannot be made. Further, when brain dysfunction is present this becomes
the prominent diagnosis from which other problems are attributed." J.A.
233.
WALKER v. TRUE 19
and shooting people — "the particular manner in which Walker com-
mitted his crimes," ante at 9 — could possibly constitute any evi-
dence for the proposition that Walker was not brain damaged. If this
indeed formed a basis for Norris’s decision not to investigate, it was
unreasonable.
Fourth, Norris and the majority would have us believe that it is rel-
evant that the witnesses Norris interviewed evidently did not diagnose
Walker with organic brain damage. But these people were not experts
and neither was Norris. Even severe mental diseases can be both crip-
pling (and thus mitigating) and hidden from, or misdiagnosed by, lay
observers; that is why we have experts to test for these things.2 Here,
one such expert explained that Walker exhibited signs of organic
brain damage that required further testing while another told Norris
that he "really need[ed]" the very records that contained the first
expert’s opinion. It was patently unreasonable for Norris to ignore
their opinions, particularly when a third expert — Dr. Sautter, who
did have the information Thomas requested — tested for and found
extensive brain damage.
Finally, the majority tells us that "Norris believed that arguing
organic dysfunction would undermine the remainder of her mitigation
strategy by supporting the government’s argument that Walker would
be a future danger in prison." Ante at 4. As the majority recognizes,
ante at 9, and Norris admits, J.A. 296, the defense had and presented
evidence indicating that Walker responded well to structured environ-
ments and had a good prison record. Of course a man can both suffer
from organic brain dysfunction and respond well to structure; Dr.
2
Dr. Sautter’s report reveals that Walker himself "demonstrate[d] an
over-rating of his abilities and an unawareness of the extent of his cogni-
tive deficits." J.A. 233. He went on to note that
Because Mr. Walker’s verbal abilities are better developed he
superficially appears to others as being far more capable socially
than he is able to demonstrate. His glib, self-assuredness is a
means to compensate for severely impaired skills in interper-
sonal relationships, constructional skills, non-verbal reasoning,
and non-verbal memory.
J.A. 233.
20 WALKER v. TRUE
Sautter, in fact, found just this. He recommended that "Mr. Walker
would benefit from a highly structured and routine environment, so
that he is not permitted complete independent decision-making in
daily living," and noted that Walker had worked well and would
likely continue to do so in the structured environment of the prison
laundry. J.A. 234.
I am perfectly aware that Strickland precludes us from second-
guessing all of an attorney’s strategic decisions with hindsight’s aid.
Rather, we defer to the tactical choices of the people we presume are
in the best position to make such decisions. But Wiggins rightly rec-
ognized that we can only put such significant faith in a lawyer’s stra-
tegic choices if these decisions are undergirded with reasonably
thorough investigations.
These choices were not. Here, an attorney received a good lead
from her client’s records — which her expert demanded but did not
receive — that her client may suffer from organic brain dysfunction.
She flatly admitted that "[t]he defense was aware, of course, that if
Walker had some sort of organic brain problem this potentially could
be ‘mitigating.’" J.A. 294. Yet rather than properly pursue this infor-
mation, she offered the precise kind of post-hoc "tactical choices"
excuse the Supreme Court rejected in Wiggins. The majority com-
mends all this as good enough for a capital case. I respectfully dis-
agree. Accordingly, I would grant the writ to have Walker
resentenced with the effective assistance of counsel guaranteed by the
Constitution.