William Morva v. David Zook

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1
WILLIAM CHARLES MORVA,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:13−cv−00283−MFU−RSB)
Argued: March 22, 2016 Decided: May 5, 2016
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn and Senior Judge Davis joined.
ARGUED: Jonathan P. Sheldon, SHELDON, FLOOD & HAYWOOD, PLC,
Fairfax, Virginia, for Appellant. Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee. ON BRIEF: Teresa L. Norris, BLUME NORRIS &
FRANKLIN-BEST, LLC, Columbia, South Carolina, for Appellant.
Mark R. Herring, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
DIAZ, Circuit Judge:
William Charles Morva appeals the district court’s
dismissal of his petition for a writ of habeas corpus, and
challenges several aspects of his capital convictions and death
sentence. First, Morva argues that the Virginia circuit court’s
refusal to appoint a prison-risk-assessment expert compels
relief under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254(d). But because Morva has
identified no clearly established federal law requiring the
appointment of a nonpsychiatric expert, we reject this claim.
Next, Morva asserts three related ineffective-assistance-
of-counsel claims regarding his counsel’s investigation and
presentation of mitigating evidence in his capital sentencing
hearing. Reviewing these claims through the deferential lens of
§ 2254(d), we find neither deficient performance nor resulting
prejudice under Strickland v. Washington, 466 U.S. 668 (1984).
Last, we determine whether Morva has shown cause to excuse his
procedurally defaulted claim that counsel was ineffective for
stipulating at the guilt phase of trial that Morva was a
prisoner in lawful custody at the time of the alleged capital
murder. Finding the underlying claim insubstantial under
Martinez v. Ryan, 132 S. Ct. 1309 (2012), we hold that he has
not.
Accordingly, we affirm the district court’s judgment.
2
I.
A.
In the summer of 2006, Morva was in jail awaiting trial in
Montgomery County, Virginia, on burglary-, robbery-, and
firearm-related charges. He had been in jail for approximately
one year when he escaped and committed the crimes we address in
this appeal. We set out the relevant facts of Morva’s crimes,
as recited by the Supreme Court of Virginia:
Morva was scheduled to go to trial on August 23,
2006. In the evening on August 19, 2006, he informed
the jail personnel that he required medical attention
due to an injury to his leg and forearm. During the
early morning hours of August 20, 2006, Sheriff’s
Deputy Russell Quesenberry, who was in uniform and
armed with a Glock .40 caliber semi-automatic pistol,
transported Morva to the Montgomery Regional Hospital
located in Montgomery County. Morva was wearing waist
chains, but Deputy Quesenberry did not secure Morva’s
allegedly injured arm.
Upon arrival at the hospital, Morva “kept trying” to
walk on Deputy Quesenberry’s right side even though he
was ordered to walk on Deputy Quesenberry’s left side.
Quesenberry was required to have Morva walk on his
left because Quesenberry wore his gun on his right
side. Quesenberry observed that Morva’s limping was
sporadic and “sort of went away.” Also, Nurse Melissa
Epperly observed Morva walking as if he were not
injured.
After the hospital treated Morva, Morva requested to
use the bathroom. Deputy Quesenberry inspected the
bathroom and allowed Morva access. While in the
bathroom, Morva removed a metal toilet paper holder
that was screwed to the wall. As Deputy Quesenberry
entered the bathroom, Morva attacked him with the
metal toilet paper holder, breaking Quesenberry’s
nose, fracturing his face, and knocking him
unconscious. Morva then took Quesenberry’s gun.
3
Prior to leaving the bathroom, Morva confirmed that
Quesenberry’s gun was ready to fire, ejecting a live
round from the chamber.
After escaping from the bathroom, Morva encountered
Derrick McFarland, an unarmed hospital security guard.
Morva pointed Quesenberry’s gun at McFarland’s face.
McFarland stood with his hands out by his side and
palms facing Morva. Despite McFarland’s apparent
surrender, Morva shot McFarland in the face from a
distance of two feet and ran out of the hospital,
firing five gunshots into the electronic emergency
room doors when they would not open. McFarland died
from the gunshot to his face.
In the morning of August 21, 2006, Morva was seen in
Montgomery County near “Huckleberry Trail,” a paved
path for walking and bicycling. Corporal Eric
Sutphin, who was in uniform and armed, responded to
that information by proceeding to “Huckleberry Trail.”
Andrew J. Duncan observed Morva and then later
observed Corporal Sutphin on “Huckleberry Trail.”
Four minutes later, Duncan heard two gunshots, less
than a second apart. David Carter, who lived nearby,
heard shouting, followed by two gunshots, and saw
Corporal Sutphin fall to the ground.
Shortly thereafter, Officer Brian Roe discovered
Corporal Sutphin, who was dead from a gunshot to the
back of his head. Corporal Sutphin’s gun was still in
its holster with the safety strap engaged. Officer
Roe confiscated Corporal Sutphin’s gun to secure it
and continued to search for Morva.
Later that day, Officer Ryan Hite found Morva lying
in a ditch in thick grass. Even though Morva claimed
to be unarmed, officers discovered Quesenberry’s gun
on the ground where Morva had been lying. Morva’s DNA
was found on the trigger and handle of Quesenberry’s
gun.
Morva v. Commonwealth (Morva I), 683 S.E.2d 553, 557 (Va. 2009).
After a six-day trial, the jury found Morva guilty of assault
and battery of a law-enforcement officer, escape of a prisoner
4
by force or violence, three counts of capital murder, 1 and two
counts of using a firearm in the commission of a murder.
B.
1.
We begin with a brief discussion of Virginia’s capital
sentencing scheme.
Under Virginia law, a capital sentencing hearing proceeds
in two stages. See Tuggle v. Netherland, 516 U.S. 10, 12 n.1
(1995) (per curiam). First, the jury decides whether the
Commonwealth has proved at least one of two statutory
aggravating factors beyond a reasonable doubt: the defendant’s
future dangerousness and the vileness of his capital offense
conduct. Va. Code Ann. §§ 19.2-264.2, 19.2-264.4(C). In
evaluating the aggravating factor of future dangerousness, the
jury is limited to considering the defendant’s criminal record,
his prior history, and the circumstances surrounding the
commission of the capital offense. §§ 19.2-264.2, 19.2-
264.4(C). If the jury fails to find an aggravating factor, it
must impose a sentence of life imprisonment; if, however, the
jury finds one or both of the statutory aggravating factors, it
has full discretion to impose either the death sentence or life
1Morva was charged with the capital murder of Derrick
McFarland, the capital murder of Eric Sutphin, and the capital
offense of premeditated murder of more than one person within a
three-year period.
5
imprisonment. See §§ 19.2-264.2, 19.2-264.4(C)–(D); Tuggle, 516
U.S. at 12 n.1.
Although Virginia juries are not instructed to give special
weight to aggravating factors or to balance aggravating and
mitigating evidence, Swann v. Commonwealth, 441 S.E.2d 195, 205
(Va. 1994), juries are constitutionally required to consider
relevant mitigating evidence in determining a sentence in a
capital case, Eddings v. Oklahoma, 455 U.S. 104, 113–14 (1982).
2.
Prior to trial, Morva moved for the appointment of Dr. Mark
D. Cunningham, a prison-risk-assessment expert, to “rebut the
Commonwealth’s claim that Morva was a future danger to society
and to provide the jury with an assessment of the likelihood
that Morva would commit violence if he were sentenced to life in
prison.” Morva I, 683 S.E.2d at 557. The circuit court denied
the motion, stating that Virginia law barred as irrelevant Dr.
Cunningham’s testimony regarding the environment and structure
of a maximum-security facility as well as testimony regarding
rates of violence among individuals similarly situated to the
defendant. Morva later moved for reconsideration, supported by
a letter from Dr. Cunningham, but the motion was denied.
Morva also sought the appointment of a mental-health expert
and a mitigation specialist, which the circuit court granted.
The court appointed Dr. Bruce Cohen, a forensic psychiatrist;
6
Dr. Scott Bender, a neuropsychologist; and Dr. Leigh Hagan, a
psychologist. All three experts prepared capital-sentencing
evaluations. Dr. Cohen and Dr. Bender diagnosed Morva with
schizotypal personality disorder. 2 Dr. Cohen and Dr. Hagan,
however, noted that there was no evidence indicating that Morva
was experiencing “an extreme mental or emotional disturbance” at
the time of the capital offenses, or that he was “unable to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law.” J.A. 2013; see also
J.A. 2025–26 (showing in Dr. Bender’s evaluation that he did not
find to the contrary; rather, he did not consider the issue).
At the sentencing phase, the Commonwealth tendered evidence
of both statutory aggravating factors. Morva called thirteen
witnesses, including Dr. Bender and Dr. Cohen. While Dr. Cohen
testified to Morva’s absence of extreme mental or emotional
disturbance and his ability to appreciate the criminality of his
conduct, the doctor also testified that Morva’s schizotypal
personality disorder mitigated against imposing the death
sentence. The jury ultimately found both aggravating factors
beyond a reasonable doubt and imposed the death sentence on each
of the three capital murder convictions.
2 The disorder “shares some of the biologic, emotional, and
cognitive features of schizophrenia, but the symptoms are of
lesser severity.” J.A. 2015.
7
On direct appeal (and as relevant here), Morva challenged
the circuit court’s denial of his motion to appoint Dr.
Cunningham as a prison-risk-assessment expert. The Supreme
Court of Virginia found no abuse of discretion, affirmed Morva’s
convictions and sentences, and subsequently denied rehearing.
Two justices dissented from the majority’s decision on the
prison-risk-assessment issue, finding that the circuit court’s
denial of Morva’s motion “result[ed] in a fundamentally unfair
trial in the sentencing phase” because absent Dr. Cunningham’s
testimony and assessment, Morva “was not permitted the means to
effectively respond to the Commonwealth’s assertions” of future
dangerousness. Morva I, 683 S.E.2d at 568–69 (Koontz, J.,
dissenting).
The U.S. Supreme Court denied further review.
C.
Morva then sought post-conviction relief in the Supreme
Court of Virginia. His petition raised, in relevant part, three
of the ineffective-assistance-of-counsel claims before us now.
The Warden filed a motion to dismiss, supported with exhibits
and affidavits, including Dr. Bender’s, Dr. Cohen’s, and Dr.
Hagan’s capital-sentencing evaluations. Morva moved repeatedly
to supplement the record and for discovery, the appointment of
mental-health experts, and an evidentiary hearing. The court
8
denied Morva’s motions and dismissed the habeas petition,
finding no ineffective assistance.
Morva subsequently filed a federal habeas petition under 28
U.S.C. § 2254, raising the claims on appeal here. The district
court held two hearings, permitted supplemental briefing, and
later issued a memorandum opinion dismissing the petition. The
court found that Morva was not entitled to relief under AEDPA’s
deferential standard. It also held that Morva failed to show
cause for his defaulted ineffective-assistance claim.
This appeal followed.
II.
Morva presents five claims. First, he contends that the
Virginia circuit court’s denial of his motion to appoint a
prison-risk-assessment expert violated his Eighth and Fourteenth
Amendment rights. Next, Morva raises three related ineffective-
assistance-of-counsel claims regarding counsel’s investigation
into his childhood, family background, and mental-illness
history; counsel’s presentation of mitigating evidence; and
counsel’s assistance to the state-funded mental-health experts.
Finally, Morva appeals the denial of relief on a separate
ineffective-assistance-of-counsel claim, raised for the first
time in the district court, regarding his counsel’s decision
during the guilt phase of trial to stipulate to Morva’s status
9
as a “prisoner in a state or local correctional facility,” who
was “imprisoned, but not yet had gone to trial,” and who was “in
lawful custody” at the time of the charged offenses. J.A. 282–
83.
We consider each argument in turn, “reviewing de novo the
district court’s denial of [Morva’s] petition for a writ of
habeas corpus.” Gray v. Zook, 806 F.3d 783, 790 (4th Cir.
2015).
A.
We turn first to Morva’s prison-risk-assessment claim.
Because the Supreme Court of Virginia adjudicated this claim on
the merits, we may not grant Morva habeas relief unless the
court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Gordon v. Braxton,
780 F.3d 196, 202 (4th Cir. 2015) (quoting § 2254(d)).
Our evaluation of a state’s application of clearly
established federal Supreme Court precedent depends on the
specificity of the clearly established law. “[W]here the
‘precise contours’ of [a] right remain ‘unclear,’ state courts
enjoy ‘broad discretion’ in their adjudication of a prisoner’s
claims.” Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per
10
curiam) (second alteration in original) (quoting White v.
Woodall, 134 S. Ct. 1697, 1705 (2014)). Similarly, when the
Supreme Court has not yet “confront[ed] ‘the specific question
presented by [a particular] case,’ the state court’s decision
[cannot] be ‘contrary to’ any holding” of the Supreme Court.
Id. (quoting Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per
curiam)).
“A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Thus, “[t]he question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473
(2007).
The Supreme Court of Virginia did not unreasonably reject
Morva’s claim that he was constitutionally entitled to a state-
funded prison-risk-assessment expert. Morva improperly frames
the court’s alleged error as an unconstitutional prohibition on
his right to present mitigating evidence. But this presents the
issue “at too high a level of generality.” Woods, 135 S. Ct. at
1377. Rather, Morva challenges the Supreme Court of Virginia’s
11
decision that due process did not require the appointment of a
state-funded nonpsychiatric expert—particularly where other
state-funded experts had been provided—because he did not make
the required showing under Virginia law.
We conclude that the Supreme Court of Virginia reasonably
applied clearly established federal law in rejecting Morva’s
challenge. Notably, the U.S. Supreme Court has never addressed
a capital defendant’s right to a state-funded nonpsychiatric
expert. The Court has only ruled on an indigent defendant’s due
process right to a state-funded psychiatrist when he makes “a
preliminary showing that his sanity at the time of the offense
is likely to be a significant factor at trial.” Ake v.
Oklahoma, 470 U.S. 68, 74, 79 (1985). Since Ake, “the Supreme
Court ha[s] flatly declined to resolve the question of what, if
any, showing would entitle an indigent defendant to [state-
funded] non-psychiatric assistance as a matter of federal
constitutional law.” Weeks v. Angelone, 176 F.3d 249, 265–66
(4th Cir. 1999).
Absent federal precedent on the issue, the Supreme Court of
Virginia has crafted a rule to determine when due process
requires a state-funded nonpsychiatric expert. In Husske v.
Commonwealth, the court announced the “particularized need”
standard: “an indigent defendant who seeks the appointment of an
expert witness, at the Commonwealth’s expense, must demonstrate
12
that the subject which necessitates the assistance of the expert
is ‘likely to be a significant factor in his defense,’ and that
he will be prejudiced by the lack of expert assistance.” 476
S.E.2d 920, 925 (Va. 1996) (citation omitted) (quoting Ake, 470
U.S. at 82–83). To satisfy this burden, the defendant must
demonstrate that the “expert would materially assist him in the
preparation of his defense” and that the expert’s absence “would
result in a fundamentally unfair trial.” Id.We have said that the Husske standard is “congruent with
the requirements of the federal Constitution.” Bramblett v.
True, 59 F. App’x 1, 9 (4th Cir. 2003); see also Page v. Lee,
337 F.3d 411, 415–16 (4th Cir. 2003) (finding that North
Carolina’s particularized-need test, which mirrors Virginia’s,
“is surely a reasonable interpretation of Ake”). Thus, the
Supreme Court of Virginia did not unreasonably apply clearly
established federal law in requiring Morva to show a
particularized need for his requested expert.
Turning to the Supreme Court of Virginia’s application of
the Husske test to Morva’s case, we find no constitutional
violation warranting habeas relief under § 2254(d). The court
first addressed the three cases on which Morva relied in support
of his claim—Gardner v. Florida, 430 U.S. 349 (1977), Skipper v.
South Carolina, 476 U.S. 1 (1986), and Simmons v. South
Carolina, 512 U.S. 154 (1994)—and found they did not dictate the
13
result he urged. Morva I, 683 S.E.2d at 564–66. The court then
discussed Virginia precedent on the relevance of prison-
environment evidence to a future-dangerousness assessment and,
finding irrelevant and therefore inadmissible an “essential”
part of Dr. Cunningham’s proffered testimony (i.e., his
testimony regarding prison life, prison security, and statistics
on similarly situated defendants’ instances of violence in
prison), concluded that “the circuit court did not err or abuse
its discretion in denying [Morva’s] motion” because Morva did
not satisfy the particularized-need test. Id. at 565–66.
The Supreme Court of Virginia’s conclusion that Gardner,
Skipper, and Simmons do not support the constitutional rule
Morva asserts is neither contrary to, nor involves an
unreasonable application of, clearly established federal law.
Gardner concerned a court’s imposition of the death penalty on
the basis of a confidential presentence report that was never
disclosed to the defense. 430 U.S. at 353 (plurality opinion).
Vacating and remanding the case for resentencing, the U.S.
Supreme Court announced that the imposition of a death sentence
“on the basis of information which [the defendant] had no
opportunity to deny or explain” is unconstitutional. Id. at 362(plurality opinion) (emphasis added) (finding a due process
violation); id. at 364 (White, J., concurring in the judgment)
(finding an Eighth Amendment violation); id. (Brennan, J.,
14
concurring in part and dissenting in part) (joining the
plurality’s due process reasoning).
The Court relied on this general principle years later in
Skipper, when it considered a capital defendant’s right to
present mitigating evidence regarding future dangerousness when
the prosecution asserts that aggravating factor, lest the
defendant be sentenced to death on information he was never
allowed to challenge. 476 U.S. at 5 n.1. The Court’s holding,
however, was narrow:
[T]he only question before us is whether the exclusion
from the sentencing hearing of the testimony
petitioner proffered regarding his good behavior
during the over seven months he spent in jail awaiting
trial deprived [him] of his right to place before the
sentencer relevant evidence in mitigation of
punishment. It can hardly be disputed that it did.
Id. at 4 (emphasis added).
Finally, Simmons announced yet another narrow expansion of
a capital defendant’s right to introduce mitigating evidence.
The Court there held that when “the defendant’s future
dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the
sentencing jury be informed that the defendant is parole
ineligible.” Simmons, 512 U.S. at 156 (plurality opinion); id.at 177–78 (O’Connor, J., concurring in the judgment) (“Where the
State puts the defendant’s future dangerousness in issue, and
the only available alternative sentence to death is life
15
imprisonment without possibility of parole, due process entitles
the defendant to inform the capital sentencing jury—by either
argument or instruction—that he is parole ineligible.”). 3
These cases do not clearly establish a capital defendant’s
right to a state-funded nonpsychiatric expert. See White, 134
S. Ct. at 1702 (“‘[C]learly established Federal law’ for
purposes of § 2254(d)(1) includes only ‘the holdings, as opposed
to the dicta, of this Court’s decisions.’” (alteration in
original) (quoting Howes v. Fields, 132 S. Ct. 1181, 1187
(2012))). Confined as we are under AEDPA, we conclude that the
Supreme Court of Virginia’s decision regarding a right whose
“‘precise contours’ . . . remain ‘unclear,’” is neither contrary
to nor an unreasonable application of federal law. Woods, 135
S. Ct. at 1377 (quoting White, 134 S. Ct. at 1705).
The Supreme Court of Virginia’s separate determination that
Morva failed to show a particularized need for the expert also
does not run afoul of clearly established law. The court’s
classification of prison-environment evidence as irrelevant and
therefore inadmissible is not unreasonable under U.S. Supreme
Court precedent. Nor is the court’s similar determination
3 Together, the three-justice plurality and Justice
O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy,
“provid[ed] the dispositive votes necessary to sustain [the
judgment].” O’Dell v. Netherland, 521 U.S. 151, 158 (1997).
16
regarding statistical evidence of similarly situated inmates and
instances of prison violence.
A defendant’s constitutional right to present mitigating
evidence related to his character, criminal history, and the
circumstances of his offense does not upset a state court’s
broad discretion in determining the admissibility of other,
nonindividualized evidence. See Lockett v. Ohio, 438 U.S. 586,
604 & n.12 (1978) (plurality opinion) (“Nothing in this opinion
limits the traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant’s character,
prior record, or the circumstances of his offense.”); see also
Johnson v. Texas, 509 U.S. 350, 362 (1993) (“[Lockett and its
progeny] do not bar a State from guiding the sentencer’s
consideration of mitigating evidence. Indeed, we have held that
‘there is no . . . constitutional requirement of unfettered
sentencing discretion in the jury, and States are free to
structure and shape consideration of mitigating
evidence . . . .’” (second alteration in original)). Thus, the
Supreme Court of Virginia did not unreasonably apply U.S.
Supreme Court precedent by deeming irrelevant evidence that did
not relate specifically to Morva’s character, background,
criminal record, or the circumstances of his offense—i.e.,
evidence regarding general prison life and security offered to
show that Morva’s “opportunities to commit criminal acts of
17
violence in the future would be severely limited in a maximum
security prison.” Burns v. Commonwealth, 541 S.E.2d 872, 893
(Va. 2001).
Finally, the Supreme Court of Virginia did not unreasonably
decide the facts. Morva contends otherwise, but he does not
identify the alleged factual error. We assume he takes issue
with the court’s finding that the inadmissible evidence of
general prison life and security was “essential” to Dr.
Cunningham’s proffered testimony. Morva I, 683 S.E.2d at 566.
But Dr. Cunningham’s own statements to the circuit court compel
this finding. In his letter, he wrote that an individualized
prison-risk assessment “is only meaningful if it takes into
account the person’s future setting, if known, and the frequency
of serious violence by people with similar characteristics in
similar settings.” J.A. 176. His declaration also noted that
the proffered group-statistical data and prison-environment
evidence are “necessary” and “critically important” to a
“reliable violence risk assessment.” J.A. 145–46. Accordingly,
we hold that Morva’s prison-risk-assessment claim does not
warrant federal habeas relief.
B.
Next we consider Morva’s nondefaulted ineffective-
assistance-of-counsel claims. First we determine the
appropriate standard of review. Then we turn to the merits.
18
1.
The district court applied § 2254(d) to Morva’s
nondefaulted claims, and we review that decision de novo.
Gordon, 780 F.3d at 202. For AEDPA’s deferential standard to
apply to the state post-conviction-relief court’s dismissal of
these claims, the court’s decision must qualify as an
“adjudicat[ion] on the merits” under § 2254(d); otherwise, de
novo review is proper. Id. (alteration in original) (quoting
§ 2254(d)). “Whether a claim has been adjudicated on the merits
is a case-specific inquiry,” Winston v. Pearson (Winston II),
683 F.3d 489, 496 (4th Cir. 2012), but “[a] claim is not
‘adjudicated on the merits’ when the state court makes its
decision ‘on a materially incomplete record,’” Gordon, 780 F.3d
at 202 (quoting Winston v. Kelly (Winston I), 592 F.3d 535, 555
(4th Cir. 2010)). “A record may be materially incomplete ‘when
a state court unreasonably refuses to permit “further
development of the facts” of a claim.’” Id. (quoting Winston
II, 683 F.3d at 496). Morva argues that the state court’s
denial of the appointment of experts and an evidentiary hearing
resulted in a decision on a materially incomplete record. We
disagree.
Although the Supreme Court of Virginia precluded some
factual development as to counsel’s investigative
decisionmaking, the court did not act unreasonably. The record
19
was substantial and contained sufficient evidence to answer the
Strickland inquiry. Moreover, the record provided reasons for
counsel’s decisions not to interview or call certain witnesses
at the sentencing phase, and included cumulative information
about Morva’s background that counsel received through witness
interviews. And trial transcripts show the extent of mitigating
evidence presented to the jury.
Moreover, there is no doubt that the Supreme Court of
Virginia considered this substantial record in ruling on Morva’s
ineffective-assistance claims. See Morva v. Warden of Sussex I
State Prison (Morva II), 741 S.E.2d 781, 789–90 (Va. 2013)
(discussing the “double-edged” nature of submitted affidavits
regarding Morva’s background and character, and evaluating the
quality and implications of Morva’s mental-health evidence).
We therefore review Morva’s remaining nondefaulted claims
under AEDPA’s highly deferential standard. Under AEDPA, we
defer to the state court’s judgment, and under clearly
established Supreme Court precedent, the state court defers to
counsel’s presumptive “sound trial strategy.” Strickland, 466
U.S. at 689 (“Judicial scrutiny of counsel’s performance must be
highly deferential.”). It was Morva’s burden before the state
court to show both that counsel’s performance was deficient—that
“counsel’s representation fell below an objective standard of
reasonableness”—and that he suffered prejudice as a result—by
20
showing “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 688, 694. “The likelihood of a
different result must be substantial, not just conceivable.”
Richter, 562 U.S. at 112.
“Surmounting Strickland’s high bar is never an easy task,”
id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371
(2010)), and “[e]stablishing that a state court’s application of
Strickland was unreasonable [or contrary to clearly established
federal law] under § 2254(d) is all the more difficult,” id.
This double-deference standard effectively cabins our review to
a determination of “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id.
2.
Morva asserts that counsel was ineffective in failing to
(1) adequately investigate his background, history, character,
and mental illness; (2) provide all available information to the
mental-health experts to ensure accurate evaluations; and
(3) adequately present the available mitigating evidence to the
jury. Although Morva identifies these as three distinct claims,
his briefs address them together, and we will resolve them as
such. The post-conviction-relief court found that Morva failed
to satisfy both Strickland prongs. We first review the court’s
21
decision on deficient performance, before considering whether
Morva met his burden as to prejudice.
a.
Regarding deficient performance, the Supreme Court of
Virginia held that counsel’s investigation and presentation of
mitigating evidence did not fall below an objective standard of
reasonableness. See Morva II, 741 S.E.2d at 789 (calling
counsel’s investigation “exhaustive,” finding that counsel spoke
with the affiants on whom Morva’s claim relies, and
characterizing the affiants’ would-be testimony as “double-
edged” (quoting Lewis v. Warden of Fluvanna Corr. Ctr., 645
S.E.2d 492, 505 (Va. 2007))). Similarly, the court found that
counsel adequately assisted the mental-health experts. Id. at
790 (finding that Morva failed to show an indication of “true
mental illness” to alert counsel).
The Supreme Court of Virginia’s decision on deficient
performance does not warrant federal habeas relief. As to the
investigation, Morva challenges trial counsel’s alleged failure
to investigate Morva’s multigenerational family history by
conducting “little or no investigation of [Morva’s] immediate
family” and only “cursory interviews with [Morva’s mothers’]
family members.” Appellant’s Br. at 50, 57. The record shows,
however, that counsel hired a mitigation expert and interviewed
many of the family-member affiants who did not testify at trial
22
and on whom Morva relies to show ineffective assistance,
including Morva’s mother, sister, paternal half-sister, one of
his brothers, and two of his aunts. Notably, Morva’s mother’s
affidavit provides a thorough account of Morva’s father’s
Hungarian background and American immigration and of her own
family history, J.A. 1071–1082, and it also states that she
“shared a good deal of information contained in th[e] affidavit
with [Morva’s capital defense team]” through “several
conversations with [them] over a period of more than a year,”
id. at 1115.
While Morva complains that counsel could have interviewed
other family members and spent more time gathering information
from those family members that were interviewed, he points to no
U.S. Supreme Court case establishing that counsel’s effort
constitutes deficient performance or that counsel’s decision not
to pursue this line of mitigating evidence was constitutionally
unreasonable. See Strickland, 466 U.S. at 689 (“[A] court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that . . . the
challenged action ‘might be considered sound trial strategy.’”
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).
Indeed, clearly established federal law supports the
Supreme Court of Virginia’s deference to counsel’s performance
23
in this instance. See Wiggins v. Smith, 539 U.S. 510, 533
(2003) (“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.”); Strickland, 466 U.S. at 691 (finding that when
counsel has “reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be
challenged as unreasonable”). Given the doubly deferential
standard of AEDPA, we cannot conclude that the Supreme Court of
Virginia unreasonably applied Strickland when it held that
counsel’s investigation into Morva’s family history was not
“outside the wide range of professionally competent assistance.”
466 U.S. at 690.
Regarding the presentation of mitigating evidence, Morva
has not shown that counsel performed deficiently. The jury
heard from thirteen witnesses, including the mental-health
experts who evaluated Morva. Witnesses testified to Morva’s
absent parents and his tumultuous relationship with them,
including that his mother was at times homeless and unable to
care for him; Morva’s own nomadic lifestyle and homelessness as
a young adult; his ongoing health problems; his nonviolent and
compassionate nature; and his odd, somewhat fantastical beliefs
and behavior.
24
These sympathetic and humanizing facts compose the bulk of
the affidavits Morva presented to the Supreme Court of Virginia
to show inadequate investigation and presentation of mitigating
evidence. That the mitigating evidence Morva insists should
have been presented at trial is merely cumulative to the
evidence actually heard by the jury further undercuts Morva’s
claim for deficient performance. See Wong v. Belmontes, 558
U.S. 15, 22–23 (2009) (per curiam) (rejecting the view that
counsel should have presented additional “humanizing evidence”
about the defendant’s “difficult childhood” and “positive
attributes,” and stating that “[a]dditional evidence on these
points would have offered an insignificant benefit, if any at
all”).
The same can be said about the additional evidence that
Morva says counsel should have provided to the mental-health
experts. Dr. Bender and Dr. Cohen found that Morva suffered
from schizotypal personality disorder. In reaching this
diagnosis, they conducted interviews with Morva, his mother, and
his sister; performed diagnostic tests and evaluations of Morva;
and considered a plethora of documents from counsel, including
reports of interviews with Morva’s acquaintances. Morva
presents no evidence that counsel should have believed these
sources were insufficient for the experts to conduct a reliable
and accurate mental-health evaluation, or that providing the
25
cumulative evidence that Morva identifies would have materially
altered their assessments of his mental condition.
Morva contends that it was objectively unreasonable for
counsel to fail to provide the experts certain family medical
records and the names of three acquaintances who he claims had
“invaluable insight into [his] mental state.” Appellant’s Br.
at 66. But Dr. Bender and Dr. Cohen learned, through their
evaluations and interviews, of Morva’s maternal family history
of schizophrenia. And Morva did not show the Supreme Court of
Virginia how his three acquaintances’ relationships with him
gave them “invaluable insight” into his mental health at the
time of the capital offenses, or that counsel should have known
of their value to the defense. Thus, the court did not
unreasonably apply Strickland or its progeny when it held that
Morva failed to substantiate his claim that counsel performed
deficiently.
b.
As to prejudice, the Supreme Court of Virginia found that
“Morva has not demonstrated what impact, if any,” the new
family-background evidence “had on his actions,” and concluded
that the information “does not mitigate Morva’s actions.” Morva
II, 741 S.E.2d at 789. The court also found that Morva failed
to show that “the mental health experts who examined Morva in
preparation for trial and sentencing would have changed the[ir]
26
expert[] conclusions” if they had received the additional
information from counsel. Id. at 790. These decisions are not
unreasonable.
On appeal, Morva presents a cumulative prejudice argument.
He contends that the “inadequate investigation of [his] multi-
generational history deprived [the] jurors of a complex,
multifaceted description of [him] as a human being.”
Appellant’s Br. at 69. Additionally, he claims that had counsel
given the mental-health experts all known Morva-family history
and the contact information of Morva’s close acquaintances,
“there is a reasonable probability [that] the court-appointed
mental health experts would have diagnosed Morva with” a more
serious mental illness. Id. at 76. In turn, counsel “could
have had an explanation for the jury that Morva’s mental illness
was a but-for cause of the violence, reducing his moral
culpability and providing a strong argument for life in prison
rather than a death sentence.” Id. at 79.
This claim fails. First, Morva’s arguments relate to the
jury’s finding that his conduct was vile, but it does nothing to
combat the future dangerousness aggravating factor. And the
jury imposed the death penalty not only on the basis of what
Morva had done, but also on the probability that he might commit
violent crimes in the future.
27
Second, Morva fails to show a reasonable likelihood that
the evidence of his family history and the anecdotal evidence of
his mental state—had it been presented—would have resulted in a
life sentence. His argument regarding the probability of a
different diagnosis is too speculative given the record and the
lack of any support from the mental-health experts. See Pooler
v. Sec’y, Fla. Dep’t of Corr., 702 F.3d 1252, 1268, 1279 (11th
Cir. 2012) (finding no § 2254(d) error with the state post-
conviction-relief court’s determination that the defendant did
not show prejudice because he “failed to demonstrate that [the
mental-health experts] would have changed their opinions had
they conducted more in-depth psychological evaluations or been
provided with his records” (quoting Pooler v. State, 980 So. 2d
460, 469 (Fla. 2008) (per curiam))); Roberts v. Dretke, 381 F.3d
491, 500 (5th Cir. 2004) (finding that the prisoner failed to
establish Strickland prejudice in part because “there is no
evidence in the record suggesting that [the mental-health
expert] would change the psychiatric diagnosis in his report
based on a review of Roberts’s [undisclosed] medical records”). 4
4
Morva unsuccessfully sought to supplement the record with
an affidavit and unsworn preliminary report from two clinical
psychologists who, years after the capital offenses and Morva’s
schizotypal-personality-disorder diagnosis, reviewed the
documents produced throughout the litigation. The affidavit and
report, which the Supreme Court of Virginia declined to
consider, push for additional mental-health evaluations to
(Continued)
28
Further, the record lacks the alleged “red flags” that
would have “‘point[ed]’ [the experts] to a more serious mental
illness.” Appellant’s Br. at 58 (quoting Rompilla v. Beard, 545
U.S. 374, 392 (2005)). Dr. Cohen thoroughly explained the eight
(out of nine) symptoms indicative of schizotypal personality
disorder that Morva displayed. Dr. Cohen discussed each symptom
individually and also distinguished the personality disorder
from an acute disease state with examples of how symptoms
manifest in both conditions. Morva’s three acquaintances’
accounts of his mental state are consistent with Dr. Cohen’s
account of the schizotypal symptoms Morva manifested after the
capital offenses. It is therefore unlikely the experts would
have changed their minds on the basis of the acquaintances’
anecdotes. And there is no reasonable probability that at least
one juror would have changed his sentencing vote on the basis of
additional lay-witness testimony regarding Morva’s “complex,
multifaceted” humanity.
determine whether Morva had a more serious mental illness at the
time of the capital offenses. Morva also attached to his
federal habeas petition a declaration from a psychiatrist, who
did not evaluate him directly but reviewed some litigation
documents and the trial mental-health experts’ evaluations, and
opined that Morva suffers from schizophrenic symptoms. However,
these submissions do nothing to show that Dr. Cohen, Dr. Bender,
and Dr. Hagan would have come to a different medical conclusion
at the time of Morva’s sentencing—the prejudice question before
us now.
29
Last, when we “reweigh the evidence in aggravation against
the totality of available mitigating evidence,” it is clear that
Morva fails to show prejudice. Wiggins, 539 U.S. at 534. Even
the most sympathetic evidence in the record about Morva’s
troubled childhood and mental health 5 does not outweigh the
aggravating evidence presented at trial. “While we have no
doubt that the conditions in the home and the treatment of
[Morva and his] siblings made for an unpleasant living
environment, they do not tip the aggravation-mitigation scale in
favor of mitigation.” Phillips v. Bradshaw, 607 F.3d 199, 219
(6th Cir. 2010). Because the Supreme Court of Virginia’s no-
prejudice determination was neither contrary to nor involved an
unreasonable application of clearly established law, we reject
Morva’s ineffective-assistance claims.
C.
Finally, we turn to Morva’s claim of ineffective assistance
arising from counsel’s stipulation at the guilt phase of trial.
To convict Morva of prisoner escape, the jury was required to
5The affidavit of Constance “Connie” Beth Dye, one of
Morva’s aunts, relates the most revealing and troubling
information about Morva’s childhood. Ms. Dye characterizes
Morva’s father as a moody and controlling “monster” and his
mother as absent and mentally troubled. See J.A. 1030–43. She
also details the squalor of Morva’s early childhood: the house,
including the children’s room, smelled bad and was littered with
trash and food remnants, and the children were malnourished and
dirty. See J.A. at 1032–38.
30
find that Morva was, prior to escaping, lawfully imprisoned and
not yet tried or sentenced, or lawfully in the custody of law
enforcement. See Va. Code Ann. § 18.2-478. Recall that, when
he escaped and committed the capital offenses, Morva was in jail
awaiting trial on pending charges for, inter alia, armed
robbery. After the trial court ruled, in Morva’s favor, to
prohibit the introduction into evidence of the substance of
Morva’s pending charges, defense counsel and the Commonwealth
stipulated to the following:
[O]n the dates in question for the crimes charged,
that is August 20th and August 21st of 2006, . . . the
Defendant was a prisoner in a state or local
correctional facility. . . . [T]he Defendant was
imprisoned, but not yet had gone to trial on the
criminal offenses, and . . . the Defendant was in
lawful custody. That is the extent of the
stipulation.
J.A. 282–83.
Morva contends that this stipulation improperly admitted an
essential element of the capital-murder charge involving the
shooting of Derrick McFarland, the hospital security guard. To
satisfy its burden as to capital murder, the Commonwealth was
required to prove that Morva shot and killed McFarland when he
was “confined in” jail or otherwise “in the custody of” a jail
employee. See Va. Code Ann. § 18.2-31(3). Morva argues that
when he killed McFarland, he had escaped from Deputy
Quesenberry’s custody and was not physically confined in jail,
31
so the stipulation precluded either a successful motion to
strike or an acquittal on that charge.
Morva concedes that the claim, raised for the first time to
the district court, is procedurally defaulted. He argues,
however, that his state post-conviction counsel’s failure to
raise the claim in the Supreme Court of Virginia, serves as
cause to excuse his procedural default. We do not agree.
A habeas petitioner is generally barred from obtaining
federal habeas review of a claim if he failed to exhaust the
claim in state court. See Coleman v. Thompson, 501 U.S. 722,
750 (1991). In Martinez, the Supreme Court carved out a “narrow
exception” to the Coleman rule. 132 S. Ct. at 1315.
Specifically, Martinez held:
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a
collateral proceeding, a prisoner may establish cause
for a default of an ineffective-assistance
claim . . . . where appointed counsel in the initial-
review collateral proceeding, where the claim should
have been raised, was ineffective under the standards
of Strickland v. Washington. To overcome the default,
a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.
Id. at 1318 (citation omitted). Because state prisoners in
Virginia cannot raise ineffective-assistance claims on direct
appeal, and because state post-conviction counsel failed to
challenge counsel’s stipulation, the claim is squarely in
32
Martinez territory. See Fowler v. Joyner, 753 F.3d 446, 462
(4th Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015).
The district court, however, properly found that this was
“no[t] [a] substantial claim of ineffective assistance of
counsel” and dismissed it for procedural default. Morva v.
Davis (Morva III), No. 7:13-cv-00283, 2015 WL 1710603, at *28
(W.D. Va. Apr. 15, 2015).
Even if the stipulation, which mirrors the elements of the
prisoner escape offense, conceded an element of the capital-
murder charge under section 18.2-31(3), it does not constitute
ineffective assistance. It is not objectively unreasonable for
counsel to stipulate to a fact that the government can prove.
See United States v. Toms, 396 F.3d 427, 433–34 (D.C. Cir. 2005)
(finding no deficient performance when counsel stipulated to a
fact the government was prepared to show through witness
testimony).
The Commonwealth could easily have shown that Morva was a
“prisoner confined” despite the fact that he was physically
outside of the jail and had escaped law enforcement’s custody.
In Mu’Min v. Commonwealth, the defendant was charged and
convicted of capital murder under section 18.2-31(3) 6 for killing
someone after escaping from an off-site prison work detail. See
6 At the time, section 18.2-31(3) was codified as 18.2-
31(c). See Mu’Min, 389 S.E.2d at 889.
33
389 S.E.2d 886, 889–90 (Va. 1990) (describing the facts
underlying the conviction), aff’d on other grounds sub nom.
Mu’Min v. Virginia, 500 U.S. 415 (1991). On appeal to the
Supreme Court of Virginia, the defendant challenged as overly
prejudicial the admission into evidence of a copy of his
previous conviction, which was offered to prove the “prisoner
confined in a state or local correctional facility” element of
the capital murder charge. Id. at 894. The court found no
reversible error and noted that a jury instruction, which was
expressly charged to define the “prisoner confined” element on
the basis of the defendant’s legal status as an inmate and not
on his physical location or whether he escaped, was “a correct
statement of the law.” Id. at 894 & n.7.
Mu’Min makes clear that the Commonwealth could have shown,
through evidence of Morva’s pending charges, that he was a
“prisoner confined” when he killed McFarland. Cf. Simmons v.
Commonwealth, 431 S.E.2d 335, 335–36 (Va. Ct. App. 1993)
(explaining that, in the context of escape under Virginia law,
the defendant remained a “prisoner in a state, local or
community correctional facility” even while released on furlough
because the term refers to the prisoner’s legal status, which
“is not dependent upon actual physical presence in such facility
or otherwise restricted by a prisoner’s location”). Thus,
counsel’s strategic choice was not deficient performance.
34
Moreover, the stipulation did not prejudice Morva for
substantially the same reason. Jury Instruction No. 9, which
was charged without objection, provides that “[a] prisoner of a
state or local correctional facility remains a prisoner at all
times until he is released from that status by the proper state
authority. A prisoner who escapes from custody retains the
status of prisoner during the entire course of such an
unauthorized absence.” J.A. 492. This instruction is almost
identical to the one charged in Mu’Min. See 389 S.E.2d at 894
n.7. So even without the stipulation, the Commonwealth could
have proven that Morva’s killing of McFarland satisfied the
elements of capital murder under section 18.2-31(3). As a
result, Morva’s claim that his counsel was ineffective is not
substantial and was properly dismissed for procedural default.
III.
For the foregoing reasons, we affirm the district court’s
judgment.
AFFIRMED
35