Schmitt v. Kelly

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-22
JOHN YANCEY SCHMITT,
Petitioner - Appellant,
versus
LORETTA K. KELLY, Warden, Sussex I State
Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CA-02-953-3-REP)
Argued: May 25, 2006 Decided: July 13, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Dana Johannes Finberg, LECLAIR RYAN, P.C., Richmond,
Virginia, for Appellant. John H. McLees, Jr., Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee. ON BRIEF: Barbara L. Hartung,
Richmond, Virginia; David J. Sensenig, LECLAIR RYAN, P.C.,
Richmond, Virginia, for Appellant. Robert F. McDonnell, Attorney
General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Petitioner-appellant John Yancey Schmitt appeals the district
court’s denial of his habeas petition filed under 28 U.S.C.A. §
2254 (West Supp. 2005). The district court granted a certificate
of appealability to Schmitt on the following six claims: (1)
whether the Virginia Supreme Court’s holding that the exclusion of
evidence relating to general prison security and prison life at
state prisons was reasonable under Supreme Court precedent; (2)
whether impeachment evidence suppressed by the prosecution violated
Brady1; (3) whether Schmitt’s trial counsel were ineffective for
failing to preserve his prosecutorial misconduct claim by moving
for a mistrial at the appropriate time; (4) whether prosecutorial
misconduct rendered Schmitt’s trial unfair; (5) whether Schmitt’s
Massiah claim2 was procedurally defaulted; and (6) whether
Schmitt’s trial counsel were ineffective for failing to file a
pretrial motion to suppress a tape that thereby waived Schmitt’s
1
A defendant’s due process rights are violated pursuant to
Brady v. Maryland, 373 U.S. 83 (1963), when the prosecution
suppresses evidence favorable to the defendant that is material to
either the defendant’s guilt or punishment.
2
A Massiah v. United States, 377 U.S. 201 (1964), violation
occurs when the “government deliberately elicit[s] incriminating
evidence from an accused after he has been indicted and in the
absence of his counsel.” United States v. Kennedy, 372 U.S. 686,
692 (4th Cir. 2004) (internal quotation marks and alterations
omitted).
3
Massiah claim. Finding no error in the district court’s
adjudication of Schmitt’s claims, we affirm.
I. Procedural History
A. Proceedings in the Trial Court
On January 19, 1999, Schmitt robbed a Nationsbank in
Chesterfield County, Virginia, taking more than $65,000. At the
time of the robbery, Schmitt was on probation for a prior
conviction for unlawful possession of a firearm by a convicted
felon. With part of the money from the robbery, Schmitt purchased
a car. Cliff Sauer, Schmitt’s former employer and friend, helped
broker the car deal. After the closing of the car deal, Sauer,
aware that Schmitt had not been gainfully employed in quite
sometime, asked Schmitt about where he had obtained the funds for
the new car. Eventually, Schmitt told Sauer that he had robbed a
bank. Sauer did not contact the police with this information.
On January 30, 1999, Schmitt and his girlfriend were staying
at a local hotel in Henrico County, Virginia and the hotel received
noise complaints regarding Schmitt’s room. When the police came to
investigate, Schmitt became belligerent and refused to comply with
the police officer’s instructions. Schmitt was arrested for
obstruction of justice. During the booking process, Schmitt told
the police he was James Cromer.3 Pretending to be James Cromer,
3
Cromer was a mutual friend of Schmitt and Sauer.
4
Schmitt called Sauer from the Henrico County jail and asked Sauer
to bail him out of jail. Sauer, believing he was assisting Cromer,
complied with the request and bailed Schmitt out of jail.
On February 17, 1999, Schmitt entered the same Nationsbank in
Chesterfield County, Virginia and robbed it again. This time,
however, Schmitt shot and killed the bank’s security guard. The
robbery was captured on the bank’s security cameras, but the
shooting occurred outside the view of the cameras. Schmitt fled
the bank and checked into a hotel under a false name. The
Chesterfield County Police Department tracked Schmitt to the hotel,
and Lieutenant Clarcq negotiated his surrender. During the
negotiations, Schmitt told Lt. Clarcq that he had not intended to
shoot the security guard, and he expressed concern for his family
and the family of the victim.
After the second robbery and the murder, but before Schmitt
was apprehended, the Chesterfield County police contacted Sauer.
Sauer cooperated with the police and disclosed his knowledge of the
first bank robbery and the car deal. Sauer provided the police
with the information that led to Schmitt’s arrest. After Schmitt’s
arrest, the police again sought assistance from Sauer, asking him
to tape record any telephone conversations he would have with
Schmitt. Complying with this request, Sauer recorded a
conversation that would become a key piece of the prosecution’s
penalty phase evidence. During this recorded conversation, Schmitt
5
made several incriminating and exculpatory statements regarding the
robbery and murder. Schmitt expressed concern over his friends
that had been implicated in the robbery, including the young lady
who drove him to the hotel. Schmitt also expressed confidence in
beating the murder charge because he claimed he did not intend to
shoot or kill the security guard. Schmitt explained that there was
a fight and that the security guard grabbed his gun. Schmitt
described in detail how he grabbed the security guard’s hand and
how he had scratches on himself to prove the struggle. Schmitt
believed that he committed manslaughter because he lacked the
intent to kill. Schmitt also laughingly described to Sauer how the
security guard’s “eyes got real big” when he pointed the gun at
him. Changing topics, Schmitt then described the amenities of the
prison. He said the prison was “nice” and noted that it had cable
television, ping-pong, microwaves, single cells, and reasonable
prices at the canteen.
The Commonwealth of Virginia indicted Schmitt for capital
murder, armed entry of a bank with intent to commit larceny, two
counts of robbery, and three counts of use of a firearm in
violation of Virginia Code § 18.2-53.1 (2004). Faced with a
defendant who wished to proceed to trial in spite of the mountain
of evidence against him, Schmitt’s trial co-counsel, Mr. Cooley and
Mr. Collins, turned their attention to trial strategy. Schmitt’s
attorneys weighed the possibility of moving to suppress the
6
telephone call between Sauer and Schmitt. They ultimately
concluded, however, that if the prosecution entered the tape into
evidence during the guilt phase of the trial, which they believed
was a strong possibility, they could use the tape to Schmitt’s
advantage by arguing that the shooting was unintentional. This was
a critical decision because Virginia law requires that all defense
motions seeking to suppress evidence on the basis of violations of
the U.S. Constitution, whether the evidence is for use at trial or
sentencing, be filed no later than seven days before trial. See
Va. Code Ann. § 19.2-266.2 (Supp. 2005)(stating “Defense motions or
objections seeking . . . suppression of evidence on the grounds
such evidence was obtained in violation of the provisions of the
Fourth, Fifth, or Sixth Amendments to the Constitution of the
United States or Article I, Section 8, 10, or 11 of the
Constitution of Virginia proscribing illegal searches and seizures
and protecting rights against self-incrimination . . . shall be
raised by motion or objection, in writing, before trial. The
motions or objections shall be filed and notice given to opposing
counsel not later than seven days before trial . . . . The court
may, however, for good cause shown and in the interest of justice,
permit the motions or objections to be raised at a later time.”).
At trial, the prosecution presented the surveillance video and
eye witnesses who identified Schmitt as the bank robber. The
prosecution also presented forensic evidence indicating that the
7
security guard had been shot from a distance of 12 to 36 inches and
that the security guard’s gun never left its holster during the
robbery. A search of the hotel room in which Schmitt was arrested
revealed a handgun, shotgun shells, newly purchased clothing and
$27,091 in cash bearing “bank bands” identifying the money as from
Nationsbank. The prosecution chose not to introduce the
Sauer/Schmitt tape in the guilt phase and the state trial court
ruled against Schmitt’s attempt to proffer the tape, finding that
the tape could not be admitted as a “declaration against interest”
because Schmitt was an available witness. The jury convicted
Schmitt on all counts.
At the sentencing phase, the prosecution produced evidence of
Schmitt’s prior convictions, his drug-dealer lifestyle, the bank
robberies, the Sauer/Schmitt tape, the hotel arrest, and testimony
from the victim’s family. The prosecution sought the death penalty
based on Schmitt’s future dangerousness and the vileness of the
murder. The prosecution used Sauer to introduce the Sauer/Schmitt
tape. Schmitt objected to the introduction of Sauer’s testimony
and the Sauer/Schmitt tape, arguing that it violated his Fifth and
Sixth Amendment rights according to Massiah because Sauer was
acting as an agent of the Commonwealth at the time of the
conversation and when Sauer elicited incriminating statements from
Schmitt. The prosecution argued that Schmitt had waived any
argument relating to such constitutional rights by failing to file
8
a pre-trial motion to suppress the tape and other evidence. The
state trial court reviewed the tape and then overruled Schmitt’s
objection. Sauer also testified that Schmitt asked him to drive
for him during the second robbery and offered to buy Sauer’s gun,
but Sauer rejected both offers. The prosecution also argued to the
jury that Schmitt had tricked the prison system and the probation
system by giving a false name and failing to comply with the terms
of his probation.
Schmitt presented evidence from Lt. Clarcq, the police
negotiator, describing the remorse Schmitt expressed from the
shooting and a medical specialist who testified about the effects
of drug addiction. Schmitt also attempted to have the Chief of
Operations of the Virginia Department of Corrections, Gary Bass,
testify to the protections at maximum security prisons and the
general prison conditions in Virginia. The trial court, however,
allowed Mr. Bass to testify only that a life sentence means life
without parole. Friends and family also testified on Schmitt’s
behalf. Finding the future dangerousness aggravator present, the
jury recommended the death sentence for Schmitt and 118 years’
imprisonment on the remaining charges.
B. The Virginia Supreme Court’s Decision on Direct Appeal
Schmitt timely filed a direct appeal of his conviction and
sentence in the Virginia Supreme Court. Schmitt alleged numerous
errors in the jury selection, guilt, and sentencing phases.
9
Relevant to our inquiry, Schmitt alleged that the trial court erred
by admitting into evidence the recorded telephone conversation
between Sauer and Schmitt because it violated Schmitt’s Sixth
Amendment right to counsel established under Massiah v. United
States, 377 U.S. 201 (1964). The Commonwealth responded that this
claim was procedurally defaulted pursuant to Virginia Code § 19.2-
266.2 because Schmitt raised it after the trial began. The
Virginia Supreme Court agreed that the claim was procedurally
defaulted. Next, Schmitt argued that the trial court erred in
“refusing to admit evidence concerning prison life and the security
features of a ‘maximum security’ prison in the Commonwealth to
rebut the Commonwealth’s contention of Schmitt’s future
dangerousness.” (J.A. at 390.) The Virginia Supreme Court
rejected this argument on the merits, reasoning that “Schmitt’s
proffered evidence was not admissible to rebut any particular
evidence concerning prison security or prison conditions offered by
the Commonwealth.” (J.A. at 390.) The Virginia Supreme Court
further noted that evidence of maximum security prison features did
not constitute mitigation evidence because “the relevant inquiry”
in assessing a defendant’s future dangerousness rests on whether
the defendant “would” commit future acts while in prison, as
opposed to whether the defendant “could” commit such acts. (J.A.
at 390.) Finally, Schmitt alleged that he was entitled to a
mistrial based on improper and inflammatory arguments made by the
10
prosecution during its closing argument. The Virginia Supreme
Court noted that the trial court provided appropriate curative
instructions each time that Schmitt’s counsel objected to the
prosecution’s statements during closing argument. It further
concluded that Schmitt’s counsel did not preserve the mistrial
motion with respect to some of the prosecution’s comments because
that motion was made after the jury left the courtroom. Thus, the
request for a mistrial based on those portions of the prosecution’s
closing argument was procedurally defaulted. Ultimately, the
Virginia Supreme Court affirmed Schmitt’s conviction and sentence.
C. The Virginia Supreme Court’s Decision on Habeas Review
On state habeas review, Schmitt reasserted his previous claims
and added ineffective assistance of counsel claims. The Virginia
Supreme Court held that because Schmitt raised these claims on
direct appeal they were barred from habeas review. The Virginia
Supreme Court then turned its attention to the ineffective
assistance of counsel claims. Schmitt alleged that his counsel
were ineffective for failing to move to suppress the Sauer/Schmitt
tape on Massiah grounds. The Virginia Supreme Court found that the
claim satisfied neither the prejudice nor performance prong of the
Strickland v. Washington, 466 U.S. 668 (1984) test, because Sauer
was not acting as an agent of the state and therefore no basis
existed for the suppression motion. Schmitt also alleged
ineffective assistance of counsel based on his counsel’s failure to
11
move for a mistrial after the prosecution’s closing arguments.
Again, the Virginia Supreme Court found the claims to be
unpersuasive because Schmitt failed to demonstrate how he could
have prevailed on the mistrial motion in light of counsel’s
objections and the trial court’s curative instructions.
D. The District Court’s Decision on Federal Habeas Review
Having exhausted his state-court remedies, Schmitt filed a 28
U.S.C.A. § 2254 petition in the Eastern District of Virginia
alleging twenty-four grounds for relief, including the six before
us. The district court denied relief on Schmitt’s claim that the
exclusion of general prison security evidence violated his due
process rights, reasoning that the Supreme Court has never held
that a defendant is entitled to present “all evidence that may
touch on [the defendant’s] future sentence,” such as the security
features of prisons in which Schmitt may or may not be stationed.
The district court conducted extensive evidentiary hearings as
to the remaining five claims before us. First, the district court
found Schmitt’s Massiah claim relating to the taping of the
Sauer/Schmitt telephone call to be unreviewable because the
Virginia Supreme Court deemed it was procedurally defaulted.
Second, the district court concluded that ineffective assistance of
counsel did not excuse the procedural default because the decision
not to move to suppress the tape was the product of a well-reasoned
12
defense strategy.4 Third, the district court addressed Schmitt’s
Brady claim, in which Schmitt alleged that the Commonwealth
suppressed impeachment evidence relating to Sauer because the
Commonwealth failed to disclose that Sauer received use immunity
for his grand jury testimony, that Sauer was working for the police
prior to Schmitt’s capture, that Sauer was mentally unstable, and
that the Commonwealth had provided Sauer with a free mental health
evaluation. The district court concluded that the suppressed facts
constituted impeachment evidence, but that the suppressed evidence
was not material. Fourth, the district court denied relief on
Schmitt’s claims that the prosecution’s improper closing arguments
entitled Schmitt to a mistrial because the claim was procedurally
defaulted. And finally, the district court concluded that no
ineffective assistance of counsel excused the procedural default of
the mistrial motion.
The district court granted a certificate of appealability on
these six claims, and we have jurisdiction to review the district
court’s denial of the writ of habeas corpus pursuant to 28 U.S.C.A.
§ 2253 (West Supp. 2005) (providing appellate courts with
4
In doing so, the district court concluded that the Virginia
Supreme Court erred when it held that Sauer was not acting as an
agent for the state when he recorded the telephone call. The
Commonwealth has not appealed this holding and, for purposes of
this opinion, we will assume that Sauer was acting as an agent of
the Commonwealth.
13
jurisdiction to review final orders from habeas proceedings if a
certificate of appealability has issued).
II. Analysis
“In reviewing the district court’s denial of [Schmitt’s]
habeas petition, we review the district court’s conclusions of law
de novo and its findings of fact for clear error. Billings v.
Polk, 441 F.3d 238, 243 (4th Cir. 2006). “We review de novo the
district court’s decision to deny a § 2254 petition based on the
record before the [state habeas court], applying the same standards
as the district court.” Robinson v. Polk, 438 F.3d 350, 354-55
(4th Cir. 2006). “[W]here a state court has not considered a
properly preserved claim on its merits, a federal court must assess
the claim de novo.” Monroe v. Angelone, 323 F.3d 286, 297 (4th
Cir. 2003). Conversely, relief may not be granted on a claim that
has been adjudicated by the state court unless the “state court
decision was either contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court”
or the decision was based on an unreasonable determination of the
facts. Robinson, 438 F.3d at 354. “A decision of a state court is
contrary to clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts.” Id. at 355 (internal quotation marks and
14
alterations omitted). “The phrase ‘clearly established law’ refers
to the holdings, as opposed to the dicta, of the Supreme Court’s
decisions as of the time of the relevant state-court decision.”
Id. (internal quotation marks and alterations omitted). “A state
court adjudication is an unreasonable application of federal law
when the state court ‘correctly identifies that governing legal
rule from the Supreme Court’s cases but applies it unreasonably to
the facts of a particular case or applies a precedent in a context
different from the one in which the precedent was decided and one
to which extension of the legal principle of the precedent is not
reasonable or fails to apply the principle of a precedent in a
context where such failure is unreasonable.” Id. (internal
quotation marks and alterations omitted).
We also may not review claims that the state court has held
were procedurally defaulted on independent and adequate state
grounds absent a showing of cause and prejudice. Strickler v.
Greene, 527 U.S. 263, 282 (1999). Utilizing these standards, we
examine each of Schmitt’s claims.
A. Prison Security and Prison Life Claim
Schmitt’s first argument is that the exclusion of evidence
relating to general prison security and prison life during the
sentencing phase of his trial violated his right to present
rebuttal evidence as established by Gardner v. Florida, 430 U.S.
349 (1977), Skipper v. South Carolina, 476 U.S. 1 (1986), and
15
Simmons v. South Carolina, 512 U.S. 154 (1994)(plurality opinion).5
Schmitt proffered the testimony of Gary Bass, a senior member of
the Virginia Department of Corrections, to describe the security
features at Virginia’s maximum security prisons in rebuttal to the
Commonwealth’s future dangerousness argument. Bass would not have
testified to Schmitt’s individual capacity to conform to prison
life, but only to general evidence of how state maximum security
prisons manage prisoners.
Schmitt contends that he needed to present evidence relating
to general prison security and the nature of life at a maximum
security prison to rebut the Commonwealth’s argument that “the
system” could not be trusted to prevent him from committing future
acts of violence, and that he would enjoy pleasant amenities while
incarcerated. The Virginia Supreme Court rejected Schmitt’s
5
To the extent Schmitt contends that general evidence of
prison life and prison security features constitute relevant
mitigating evidence under the Eighth Amendment and Fourteenth
Amendment, his claim is without merit. The Supreme Court has never
held that a defendant may present general evidence relating to
prison life and security as mitigating evidence. To the contrary,
the Supreme Court has repeatedly noted that mitigating evidence
should relate to the individual defendant and why that defendant
should or should not be sentenced to death. See Skipper, 476 U.S.
at 4; Lockett v. Ohio, 438 U.S. 586, 605 (1978)(plurality opinion);
Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982); see also United
States v. Johnson, 223 F.3d 665, 674-75 (7th Cir. 2000) (noting
that a defendant should not have been entitled to “present to the
jury . . . evidence of the existence of maximum-security federal
prisons decked out with control units, in order to establish a
mitigating factor. A mitigating factor is a factor arguing against
sentencing this defendant to death; it is not an argument against
the death penalty in general.” (emphasis in original)).
16
argument, holding that because the Commonwealth “did not present
evidence concerning prison security or the nature of prison
confinement” Schmitt was not entitled to present such evidence in
rebuttal. (J.A. at 390.) The Virginia Supreme Court also rejected
Schmitt’s general claim that evidence relating to prison security
should always be admissible to rebut a future dangerousness
argument.
As established above, we cannot grant relief unless the
Virginia Supreme Court’s decision was contrary to clearly
established federal law, was based on an unreasonable application
of clearly established law, or was based on an unreasonable
determination of the facts. We begin by assessing whether the
inclusion of a future dangerousness aggravator necessarily gives
rise to the right to present general prison security evidence and
then evaluating whether Schmitt needed to present Bass’s testimony
to rebut the Commonwealth’s evidence relating to prison security
and prison life.
Here, Schmitt presents us with the same arguments that he
presented to the district court. Schmitt relies on Skipper’s
language that “it is . . . [an] elemental due process requirement
that a defendant not be sentenced to death on the basis of
information which he had no opportunity to deny or explain.”
Skipper, 476 at 5 n.1. Schmitt also points to language in Simmons
stating that juries may and should consider a “defendant’s likely
17
conduct in prison” when evaluating the future dangerousness
factor.6 Simmons, 512 U.S. at 171. Gardner established that due
process is violated when a defendant is forbidden from rebutting
the prosecution’s evidence in support of the death penalty.
The district court correctly concluded that “the Supreme Court
has not addressed directly the right of a capital defendant to
present evidence of his prison security conditions when future
dangerousness is placed in issue, [therefore] the refusal of the
Virginia courts to permit evidence on that point does not run
contrary to a decision of the Supreme Court.” (J.A. at 733.) We
also agree with the district court’s reasoning that the Virginia
Supreme Court did not unreasonably apply the holdings of Simmons,
Gardner, and Skipper. Although these cases clearly establish that
a defendant has a due process right to present rebuttal evidence,
they do not define rebuttal evidence to include evidence that
merely describes the general conditions of incarceration, as
opposed to evidence about how the conditions of confinement would
affect a particular defendant. The district court aptly noted that
6
The actual holding of Simmons is that when the prosecution
seeks the death penalty based on future dangerousness, a defendant
is entitled to a jury instruction that life imprisonment means no
possibility of parole. 512 U.S. at 161. Here, Schmitt is not
arguing that the trial court did not conform to this holding as
Bass testified that a life sentence means no possibility of parole,
and we are limited to examining whether the Virginia Supreme
Court’s decision is contrary to the holdings, not the dicta of
Supreme Court precedent. See Robinson, 438 F.3d at 355.
18
in Young v. Catoe, 205 F.3d 750, 763 (4th Cir. 2000), we rejected
the defendant’s argument to expand Simmons, finding that Simmons
does not require that a jury be informed that the defendant would
be ineligible for parole for thirty years, even though Simmons
provides that juries should be instructed that a life sentence
means life imprisonment. Thus, the district court was correct in
concluding that it is not an unreasonable application of clearly
established federal law to bar admission of evidence relating to
general prison security and prison life when the prosecution,
although arguing for the death penalty based on future
dangerousness, never argues that general prison security and prison
life factors support a death sentence.
Having concluded that Supreme Court precedent does not require
that defendants be allowed to present evidence of general prison
security features to rebut a future dangerousness argument, we
address whether Schmitt had a right to use Bass’s testimony to
rebut specific evidence of prison security and conditions presented
by the prosecution. During its closing argument, the Commonwealth
argued that “the system,” namely the Department of Probation and
Parole, had failed to keep Schmitt from preventing future crimes,
as he was on probation at the time of the murder. (J.A. at 363.)
The Commonwealth also noted Schmitt’s prior manipulation of “the
system” as he provided a false name to the police after his arrest
on January 30. In his summation, the prosecutor stated
19
I would urge you not to trust the system that can be so
easily manipulated by the defendant, but Mr. Cooley says
don’t worry about that. He’s going to be locked up for
the rest of his life, and you look at me and say isn’t
that right, Mr. Commonwealth. I’m going to tell you
something. There’s not one person on this planet that
can predict the future. If you want to give him life,
you roll the dice because you know from what you’ve heard
that John Yancey Schmitt is a fist full of matches.
(J.A. at 365-66.)
After reviewing the record, we agree with the Virginia Supreme
Court that the Commonwealth did not argue that general prison
security features were inadequate to protect against Schmitt’s
future dangerousness. The Commonwealth’s “don’t trust the system”
argument focused not on the prison security features, but on
Schmitt’s failure to comply with the Department of Corrections’
protocol, by committing crimes while on probation, and by Schmitt’s
deceitfulness in providing the police with a false name. In
essence, the Commonwealth argued to the jury that “the system”
could not be trusted based on Schmitt’s prior actions. Schmitt has
failed to direct us to any statements by the Commonwealth
specifically discussing security aspects of the prison, such as the
frequency of prison escapes, prisoner-on-prisoner assaults, or
murders in prison. In fact, Schmitt even admits that his
“probation violations and his successful deception of the Henrico
[County] authorities became the highlight of lead prosecutor Von
Schuch’s argument for his death sentence.” (Appellant’s Reply Br.
20
at 4.) Because the Commonwealth’s sentencing arguments focused on
Schmitt’s character, his propensity for violent acts and his
manipulation of the state prison and probation systems, the
statements were decidedly not general statements about prison
security features that could give rise to the right to present
rebuttal evidence in the form of general prison security features.7
In summary, we deny Schmitt’s claim because the Virginia
Supreme Court did not err in holding that evidence relating to
general prison security is inadmissible to rebut a future
dangerousness argument when the prosecution has not placed general
prison security evidence before the jury. We also conclude that
7
Schmitt also argues that the Commonwealth actually presented
evidence of prison life through the introduction of the
Sauer/Schmitt tape. During the sentencing phase, the Commonwealth
introduced the Sauer/Schmitt tape in which Schmitt himself
discussed the amenities of the local jail, including cable
television, microwave ovens, ping pong, and reasonable prices at
the canteen (the amenities). Despite our conclusion that the
prosecution introduced prison life evidence, we cannot grant relief
on this claim because the local jail’s amenities had no relevance
to the jury’s determination of whether the murder was particularly
vile or whether Schmitt has a propensity to commit future acts of
violence. See e.g., Skipper, 476 U.S. at 7 n.2 (noting that how
often the defendant showers in prison “is irrelevant to the
sentencing determination”). Thus, to the extent that evidence of
prison life was entered into evidence, such evidence did not have
a substantial and injurious effect on the jury’s determination of
whether the aggravating factors of vileness or future dangerousness
were present. See Richmond v. Polk, 375 F.3d 309, 335 (4th Cir.
2004) (“[P]rinciples of comity and respect for state court
judgments preclude federal courts from granting habeas relief to
state prisoners for constitutional errors committed in state court
absent a showing that the error ‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’”(quoting
Brecht v. Abrahamson, 507 U.S. 619 (1993)).
21
the Virginia Supreme Court reasonably determined that the
Commonwealth did not present general evidence of prison security.
B. Brady Claim
We next address Schmitt’s claim that the prosecution
suppressed material impeachment evidence. Schmitt alleges that the
Commonwealth violated the dictates of Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose that Sauer received use immunity
for his grand jury testimony, that Sauer was working for the police
prior to Schmitt’s capture, that Sauer was mentally unstable, and
that the Commonwealth provided Sauer with a free mental health
evaluation. Schmitt did not exhaust this claim in state court
because the factual underpinnings of the claim came to light only
on federal habeas review. Ordinarily, an unexhausted claim is
procedurally defaulted and we may only review the claim if the
defendant demonstrates cause and prejudice for the default.
Strickler, 527 U.S. at 282. The Supreme Court, however, has held
that in reviewing Brady claims, the Strickler cause and prejudice
prongs overlap with two of the three elements of a Brady claim.
A successful Brady claim, requires that the defendant demonstrate
that (1) the suppressed evidence was favorable, either as
exculpatory evidence or impeachment material, (2) the government
suppressed the impeachment or exculpatory evidence either willfully
or inadvertently, and (3) the suppressed evidence was material.
See Monroe, 323 F.3d at 298. “Corresponding to the second Brady
22
component (evidence suppressed by the State), a petitioner shows
‘cause’ when the reason for his failure to develop facts in state-
court proceedings was the State’s suppression of the relevant
evidence; coincident with the third Brady component (prejudice),
prejudice within the compass of the ‘cause and prejudice’
requirement exists when the suppressed evidence is ‘material’ for
Brady purposes.” Banks v. Dretke, 540 U.S. 668, 691 (2004).
Because no state court adjudicated Schmitt’s Brady claim, we will
review the claim de novo. See Monroe, 323 F.3d at 297 (“AEDPA’s
deference requirement does not apply when a claim made on federal
habeas review is premised on Brady material that has surfaced for
the first time during federal proceedings.”).
Because the Commonwealth does not challenge that it suppressed
the evidence relating to Sauer or that the evidence had impeachment
value, we turn to the materiality prong.
Kyles v. Whitley, 514 U.S. 419 (1995) instructs that the
materiality standard is met when “the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Id. at 435. “In short,
[Schmitt] must show a reasonable probability of a different
result.” Banks, 540 U.S. at 699. Because Schmitt’s Brady claim
relates entirely to the ability to impeach Sauer, who testified
only at the sentencing phase of the trial, we need only determine
whether Schmitt has demonstrated a reasonable probability that the
23
jury, armed with the suppressed evidence, would have given him a
life sentence.8
We begin by summarizing the evidence presented to the jury at
the sentencing phase. The prosecution introduced evidence of
Schmitt’s prior convictions, which included two convictions for
possession of marijuana with intent to distribute, one conviction
for receipt of stolen property, one conviction for felon in
possession of a firearm, and one conviction for possession of
marijuana. The prosecution also presented testimony from Schmitt’s
former probation officers; JoAnna Murphy, Schmitt’s friend; Kenny
Lockner, the owner of the gun used in the first robbery; the
officer involved in the hotel arrest; and victim impact testimony
from the security guard’s family. The probation officers testified
that Schmitt violated his probation by failing drug tests, missing
his outpatient drug treatment meetings, never demonstrating that he
was gainfully employed, missing his mandatory probation meetings,
8
To the extent that Schmitt argues that the suppressed
impeachment evidence may have encouraged his trial counsel to move
to suppress the Sauer/Schmitt tape pre-trial because the suppressed
impeachment evidence included evidence that Sauer was working as a
government agent, this claim is without merit. As developed more
fully in the text infra in Part II-F, Schmitt’s attorneys were well
aware that they had a valid basis under Massiah for moving to
suppress the Sauer/Schmitt tape. After much deliberation, his
counsel determined that the tape could be more helpful than harmful
and they chose not to move to suppress it. The additional
information would not have altered this strategic decision because
it bore no relationship to Schmitt’s counsel’s tardy filing of the
suppression motion.
24
and missing his court appearances. Joanna Murphy testified that
she saw Schmitt with a sawed off shotgun just prior to the first
robbery and that after she learned of the first robbery, Schmitt
took her to the mall to buy approximately three hundred dollars
worth of new clothes. Kenny Lockner, a former friend of Schmitt,
testified that Schmitt used his (Lockner’s) shotgun in the first
bank robbery without his knowledge. The prosecution also presented
testimony from the officer involved in the hotel incident who
described the belligerent acts leading to Schmitt’s arrest on that
night and the false name provided by Schmitt. The prosecution then
presented victim impact testimony from the security guard’s family.
The mother of the security guard testified to her son’s popularity,
his twenty years of service in the United States Army, and the
community foundation that was established in memory of her son.
Finally, at the conclusion of the sentencing phase, the
prosecution called Sauer. First and foremost, the prosecution used
Sauer to introduce the Sauer/Schmitt tape. It was during this
taped conversation that Schmitt stated his confidence in beating
the murder charge, used profanity, laughingly described the
security guard’s reaction to the sight of his gun, stated his
commitment to carrying out the robbery even though it required
shooting the security guard, and described the amenities of the
county jail. Sauer also testified that Schmitt tried to purchase
a gun from him and that Schmitt threatened to kill Joanna Murphy
25
after the first bank robbery out of fear that Murphy would turn him
into the police. Sauer then described the incident where Schmitt
called him pretending to be James Cromer and requested that he be
bailed out of jail.
In his defense, Schmitt presented mitigation testimony from
Lt. Clarcq, the officer who negotiated his surrender; Dr. Bright,
an adolescent addiction specialist; Gary Bass, a Department of
Corrections employee; and various family members and friends. Lt.
Clarcq testified that while negotiating Schmitt’s surrender,
Schmitt stated that he robbed the bank to obtain drug money and
that he never intended to kill anyone. Dr. Bright testified that
the withdrawal symptoms felt by a cocaine addict include cravings,
depression, anxiety, paranoia, boredom, memory problems, and
suicidal ideation. Dr. Bright, however, informed the jury that he
had not evaluated Schmitt. Mr. Cooley used Dr. Bright’s testimony
to support his opinion that Schmitt’s drug addiction drove him to
rob the banks and shoot the security guard and that when not on
drugs, Schmitt was a good person. Gary Bass testified that a life
sentence means life without the possibility of parole. And
Schmitt’s family and friends testified that he had redeeming
qualities, such as always being courteous, kind and respectful, and
was a pleasant individual when not on drugs.
Because the suppressed evidence could only have been used to
impeach Sauer’s credibility, our confidence in the jury’s verdict
26
has not been undermined. Schmitt cannot demonstrate that the jury
would have imposed a life sentence had they have known that Sauer
was working with the government and that he had received mental
health services. One of the most damaging portions of the
prosecution’s case was the Sauer/Schmitt tape and, more
specifically, the very statements made by Schmitt during the
conversation. Schmitt could not have used the suppressed
impeachment evidence to bar the introduction of the tape after the
trial began, nor could the evidence have been used to impeach
Schmitt’s damaging remarks.9 At most, the impeachment evidence
could have been used to discredit Sauer’s statement that Schmitt
offered to buy his gun to use presumably in the bank robberies and
that Schmitt threatened to kill Joanna Murphy. This would have
been of little help to Schmitt because Schmitt had already
stipulated to the fact that he was a convicted felon and thus he
illegally possessed the gun used in the murder. Moreover, the jury
had already heard that Schmitt had taken Lockner’s gun for use in
the first robbery. Also, Joanna Murphy’s own testimony cast doubt
on the alleged threat to kill her because she testified that
Schmitt took her shopping when he learned that she knew about the
first robbery -- as opposed to killing her because of her
knowledge. The ability further to impeach Sauer on the alleged
9
Schmitt did not contest the authenticity of the tape and his
mental instability would not have affected the authentication.
27
threat against Joanna Murphy is, alone, insufficient to warrant a
finding that the jury would not have imposed the death penalty.
Lastly, the impeachment evidence would have done little to curtail
the harm from Sauer’s testimony about Schmitt pretending to be
James Cromer because the arresting officer had already provided
corroborating evidence of the arrest and the false name.
Even if the jury used the suppressed evidence to discredit all
of Sauer’s testimony, the underlying facts would not have changed.
At the end of the day, the jury reviewed Schmitt’s lengthy criminal
record and listened to his damaging statements on the Sauer/Schmitt
tape, his probation officers testify to Schmitt’s failure to become
a law-abiding citizen after being convicted multiple times, his
drug abuse, his evasion of the police, and how he took the life of
a respected and loved member of the community. It also bears
noting that the same jury had just found Schmitt guilty of capital
murder and robbing the same bank twice within six weeks, which
undoubtedly is powerful evidence of future dangerousness.10
10
Schmitt urges this court to find that his case is no
different than Banks v. Dretke, 540 U.S. 668 (2004), in which the
Supreme Court found all three elements of a Brady claim satisfied
where the prosecution suppressed the paid informant status of one
of the prosecution’s key witnesses. The facts of Banks are
materially distinguishable from our case. In Banks, the Supreme
Court found that the informant’s testimony was key to the
prosecution’s case during the guilt and sentencing phases. Id. at
698. Here, by contrast the Sauer/Schmitt tape was key to the
Commonwealth’s penalty case, but Sauer’s live testimony was not.
The Court also noted in Banks that the defendant was denied the
opportunity to “probe” the informant’s credibility through cross-
28
In summary, we conclude that Schmitt has not demonstrated
prejudice from the suppression or that the suppressed evidence was
material because the suppressed evidence does not “put the whole
case in such a different light as to undermine confidence in the
verdict.” Strickler, 527 U.S. at 291 (internal quotation marks
omitted).
C. Ineffective Assistance Claim
Schmitt alleges that his trial counsel were ineffective for
failing to move for a mistrial prior to the jury leaving the
courtroom, which would have preserved Schmitt’s prosecutorial
misconduct argument. The Virginia Supreme Court on state habeas
review found that the failure to move for a mistrial at the proper
time did not satisfy the performance or the prejudice prongs of the
Strickland test. Because the Virginia Supreme Court reached the
merits of this ineffective assistance of counsel claim, we must
examine their conclusions under the strictures of 28 U.S.C.A. §
2254.
examination. Id. at 701. Here, any cross-examination on Sauer’s
grant of immunity, his mental status, and the free mental health
screening provided by the government could not have cast doubt on
the damaging statements made by Schmitt during the taped
conversation. Furthermore, in Banks the paid informant testified
to the defendant’s “propensity to commit violent acts,” which was
crucial because the defendant did not have a criminal record. Id.
at 700. Here, Schmitt had a lengthy criminal record and the jury
listened to an officer describe Schmitt’s belligerent nature at the
hotel.
29
“To prove a Sixth Amendment violation under Strickland a
defendant must demonstrate that counsel’s performance was
deficient, and that this deficient performance prejudiced the
defense.” Vinson v. True, 436 F.3d 412, 418 (4th Cir. 2006)
(internal quotation marks omitted). “Judicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466
at 689. “A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. “To establish deficient performance, a petitioner
must demonstrate that counsel’s representation fell below an
objective standard of reasonableness,” Wiggins v. Smith, 539 U.S.
510, 521 (2003)(internal quotation marks omitted), and the
prejudice prong “requires a claimant to show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
Strickland, 466 U.S. at 694 (internal quotation marks omitted).
Schmitt contends that his trial counsel should have moved for
a mistrial after the prosecution made the following inappropriate
arguments to the jury during its closing argument: (1) that
Schmitt possessed a stolen gun; (2) that Schmitt assaulted his
girlfriend; (3) that “the system” could not be trusted to contain
Schmitt; and (4) that Schmitt would enjoy amenities while in
30
prison. Before we can determine whether any of the above
statements warranted a mistrial motion, we must determine whether
any of the statements were actually improper.
The first statement referencing the stolen gun was improper
because the prosecution and defense had stipulated prior to trial
that Schmitt possessed the gun illegally because he was a convicted
felon, not because it was stolen. The second statement, that
Schmitt assaulted his girlfriend, was also inappropriate because
the alleged assault was not put into evidence. The third
statement, that “the system” could not be trusted to contain
Schmitt, however, was an appropriate comment. During the defense’s
closing argument, Mr. Cooley argued that “there is no probability
or even possibility that [Schmitt] can be a continuing serious
threat to our society” because he will be “imprisoned for the rest
of his natural life.” (J.A. at 344-45.) Therefore, the
prosecution’s argument that “the system” could not be trusted to
contain Schmitt because of Schmitt’s prior deviant acts within the
prison and probation systems was an acceptable rebuttal argument.
Finally, the fourth statement, that the prosecution described the
amenities of prison, contained both appropriate and inappropriate
comments. During its rebuttal argument, the prosecution began to
argue that if given life Schmitt will enjoy a life of ping pong.
Defense counsel quickly objected and the trial court instructed the
jury that what the prosecution said was not evidence. The
31
prosecution then proceeded with its argument, altering its focus
just slightly by asking the jury to recall Schmitt’s description of
what he had enjoyed at the local prison, including the ping pong,
microwaves, cable television, and canteen privileges. The second
portion of the prosecution’s argument was clearly acceptable
because it merely reiterated irrelevant evidence previously
submitted to the jury and as noted in Part II-A.
In summary, the only objectionable portions of the
prosecution’s argument were the mention of the stolen gun,
Schmitt’s assault on his girlfriend, and the reference to Schmitt
playing ping pong. Defense counsel objected contemporaneously to
each of the above statements, and each time the trial court issued
a curative instruction. In fact, the trial court four times issued
instructions in which it reminded the jury that what the lawyers
said in closing argument was not to be considered evidence. We
agree with the district court’s conclusion that Schmitt’s counsel
were not ineffective for failing to move for a mistrial after each
of these statements because counsel had objected and received
appropriate curative instructions from the trial court. See
Bennett, 92 F.3d at 1346 (finding no harm from improper prosecution
argument where trial court told the jury “what the lawyers say is
not evidence” and evidence of guilt was “powerful”); cf. Martin v.
Grosshans, 424 F.3d 588, 591-92 (7th Cir. 2005)(finding defense
counsel’s performance deficient where counsel failed to move for a
32
mistrial when the prosecution’s closing argument referenced Jeffrey
Dahmer).
Even if we assumed, for argument’s sake, that moving for a
mistrial at the wrong time satisfies the deficient performance
prong of Strickland, Schmitt cannot satisfy Strickland’s prejudice
prong. The trial court repeatedly instructed the jury that
statements made in closing arguments are not evidence and, in fact,
in denying Schmitt’s untimely mistrial motion, the trial court
noted that it presumed the jury followed its instructions.
Furthermore, even if Schmitt’s counsel had preserved the mistrial
motion and the Virginia courts could have reviewed the
prosecution’s closing argument on appeal, there is no reasonable
probability that Schmitt’s sentence would have been reversed. The
prosecutor’s isolated comments regarding the stolen gun, the
assault on the girlfriend, and the reference to Schmitt playing
ping pong did not undermine the jury’s verdict. In fact, only the
reference to the assault could have been used to support the future
dangerousness argument, whereas the ping pong comment does not
reflect future dangerousness and the stolen gun hardly reflects
future dangerousness any more than the illegal possession
instruction actually given by the trial court. And more
importantly, the prosecutor’s comments were minuscule compared to
Schmitt’s prior criminal record, his two bank robberies, his drug
abuse, his lack of remorse, and his deception of the local police.
33
See Bennett, 92 F.3d at 1347. Thus, there is no reasonable
probability that the trial judge would have granted a timely
mistrial motion based on the prosecution’s comments, or that the
Virginia courts would have vacated his sentence based on the same
arguments. Because Schmitt has not met the Strickland
prerequisites, we cannot conclude that the Virginia Supreme Court
unreasonably applied the Strickland test to the facts presented.
D. Prosecutorial Misconduct
Schmitt next contends that the improper remarks by the
prosecution during closing argument were so prejudicial that they
rendered the trial unfair. This claim is procedurally defaulted,
and we may not review it unless Schmitt can demonstrate that
ineffective assistance of counsel excuses the default. Because
Schmitt cannot prevail on his ineffective assistance of counsel
claim under Strickland, he also has not established cause and
prejudice for excusing the default of his prosecutorial misconduct
argument. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“So
long as a defendant is represented by counsel whose performance is
not constitutionally ineffective under the standard established in
Strickland v. Washington, 466 U.S. 668, (1984), we discern no
inequity in requiring him to bear the risk of attorney error that
results in a procedural default.” (internal quotation marks and
alterations omitted)).
34
E. Massiah Claim
Schmitt’s fifth claim for relief is that the district court
erred in concluding that his Massiah claim was procedurally
defaulted. Schmitt claims that his Sixth Amendment right to
counsel was violated when he telephoned Sauer from prison and
Sauer, acting as a government agent, recorded the conversation and
elicited incriminating statements from him. The Virginia Supreme
Court found that claim procedurally defaulted because Schmitt
failed to move to suppress the Sauer/Schmitt tape prior to trial as
required by Virginia Code § 19.2-266.2. The district court,
relying on Skipper v. French, 130 F.3d 603 (4th Cir. 1997),
concluded that it was precluded from reviewing the merits of the
claim because the Virginia Supreme Court found the claim
procedurally defaulted on independent and adequate state grounds.
Schmitt now argues that we should review the claim because (1) the
trial court denied the Massiah motion on the merits and not on the
basis of § 19.2-266.2; (2) the Virginia procedural default law is
not regularly enforced and cannot constitute an independent and
adequate state ground barring federal habeas review; and (3) that
cause and prejudice excuses the failure to move to suppress the
tape pretrial. We review the district court’s “purely legal ruling
de novo.” Skipper, 130 F.3d at 609.
Schmitt presents two arguments to support his supposition that
the Virginia courts decided the merits of his Massiah claim.
35
First, Schmitt cites to Ramdass v. Angelone, 187 F.3d 396, 409 (4th
Cir. 1999) for the proposition that a defendant may preserve the
substance of a constitutional claim when couching the claim under
an ineffective assistance of counsel claim. Schmitt contends that
because the Virginia Supreme Court reviewed the merits of his
ineffective assistance of counsel claim relating to the Massiah
motion, the Virginia Supreme Court necessarily decided the merits
of the Massiah motion to suppress. Ramdass, however, is inapposite
to the present case. Here, the issue is not whether Schmitt
presented the Massiah argument to the state court (he did), but
whether the Virginia Supreme Court unequivocally held that Schmitt
had procedurally defaulted the claim at the trial level pursuant to
an independent state ground. And contrary to Schmitt’s contention,
the Virginia Supreme Court, on both direct appeal and state habeas
review, explicitly rejected the claim on procedural grounds because
Schmitt failed to comply with the requirements of § 19.2-266.2 at
trial.
Second, Schmitt contends that the denial of his Massiah motion
was not procedurally defaulted, but must have been decided on the
merits because the trial court accepted the motion and reviewed a
transcript of the telephone call. Whether the trial court denied
Schmitt’s motion on the merits is, however, irrelevant to our
inquiry. When we assess whether a state court has dismissed a
claim on independent and adequate state grounds, “[t]he relevant
36
state court decision for purposes of the inquiry is that of the
last state court to be presented with the particular federal claim
at issue.” Skipper, 130 F.3d at 609 (internal quotation marks
omitted). Here, the Virginia Supreme Court on state habeas review
declined to review the appropriateness of the trial court’s denial
of Schmitt’s Massiah motion because it found the claim procedurally
defaulted; this decision precludes our review.
Schmitt also argues that we can review his Massiah claim
because § 19.2-266.2 is not an independent and adequate state
ground due to its irregular enforcement. When a state court has
found a claim to be procedurally defaulted on independent state
grounds, “that ground must be a constitutionally ‘adequate’ one.”
Skipper, 130 F.3d at 609 (quoting James v. Kentucky, 466 U.S. 341,
348-49 (1984)). “This means that it must be a ‘firmly established
and regularly followed state practice.’” Id. “As a general
matter, whenever a procedural rule is derived from state statutes
and supreme court rules, as this one is, the rule is necessarily
‘firmly established.’” O’Dell v. Netherland, 95 F.3d 1214, 1241
(4th Cir. 1996). Thus, the only disputed point is whether § 19.2-
266.2 is “regularly followed.”
Schmitt cites to a few unpublished Virginia opinions to
support his argument. In the first case, Wheaton v. Commonwealth,
No. 1409-95-2, 1997 WL 191299 (Va. Cir. Ct. Apr. 22, 1997), the
Commonwealth objected to the defendant’s tardy suppression motion,
37
but the trial court allowed the motion for good cause, as provided
in § 19.2-266.2, and thus the Virginia Court of Appeals reviewed
the merits of the suppression motion. Similarly, in Evans v.
Commonwealth, No. 1963-47-2, 1998 WL 387497 (Va. Cir. App. Jul. 14,
1998), the Virginia Court of Appeals explicitly stated that the
defendant failed to comply with § 19.2-266.2, but that the trial
court “presumably” allowed the tardy motion because the defendant
exhibited good cause. The last two cases are similarly unhelpful
to Schmitt because in Sykes v. Commonwealth, 556 S.E.2d 794 (Va.
Ct. App. 2001), the Commonwealth did not object to the defendants’
tardy motion on § 19.2-266.2 grounds and in Neal v. Commonwealth,
498 S.E.2d 422 (Va. Ct. App. 1998), the issue of § 19.2-266.2 was
not presented. In summary, Schmitt cannot produce a single
published Virginia opinion in which the Virginia Supreme Court or
the Virginia Court of Appeals has ignored the dictates of § 19.2-
266.2 when properly presented.11
In contrast to the unpublished cases cited by Schmitt,
Virginia courts have recognized that the word “shall” in § 19.2-
266.2 makes the pretrial filing of suppression motions “mandatory.”
11
Moreover, even if Schmitt could direct us to a Virginia case
excusing compliance with § 19.2-266.2 “one decision does not likely
establish ‘inconsistent application’ of a procedural rule. ‘An
occasional act of grace by a state court in excusing or
disregarding a state procedural rule does not render the rule
inadequate.’” Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.
2001)(quoting Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995)).
38
See Upchurch v. Commonwealth, 521 S.E.2d 290, 291 (Va. Ct. App.
1999). The Upchurch court concluded that enforcement of § 19.2-
266.2 is necessary because it preserves the Commonwealth’s right to
appeal an adverse suppression ruling. The pretrial filing of a
suppression motion is key because the state “may not appeal an
erroneous suppression ruling after the jury is impaneled and sworn
in a jury trial.” Id. at 292. Thus, “[t]he justification for the
requirement of a pretrial suppression motion is readily apparent in
light of the Commonwealth’s limited right to appeal an adverse
suppression ruling.” Id.
In summary, the Virginia Supreme Court rejected Schmitt’s
Massiah claim on an independent and adequate state ground that is
firmly established and regularly followed in Virginia. Thus, we
cannot review the merits of the Massiah claim unless Schmitt’s
final argument that cause and prejudice in the form of ineffective
assistance of counsel excused the procedural default. See Vinson,
436 F.3d at 417 (“federal habeas courts may not review procedurally
barred claims unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law” (internal quotation marks omitted)).
F. Ineffective Assistance Relating to Massiah Claim
Schmitt’s third and final attempt to have us review the merits
of his Massiah claim is that ineffective assistance of counsel
excused the procedural default. Because Schmitt raised this claim
39
in his state habeas proceedings and the Virginia Supreme Court
decided the merits of this ineffective assistance of counsel claim,
we review its decision pursuant to the strictures of 28 U.S.C.A. §
2254. And as set forth in Part II-C, the Strickland standard
governs our review of the ineffective assistance of counsel claim.
On state habeas review, the Virginia Supreme Court found no
Massiah violation occurred because Sauer was not a government agent
and Schmitt’s ineffective assistance of counsel claim necessarily
failed because Schmitt could not have successfully suppressed the
tape. As noted earlier, the district court, after conducting an
evidentiary hearing, disagreed with the Virginia Supreme Court and
found that Sauer functioned as a government agent when he taped the
phone call. Therefore, the conversation violated Schmitt’s Sixth
Amendment right to counsel, as established in Massiah.12
Nevertheless, the district court concluded that Schmitt’s counsel’s
failure to move to suppress the tape pre-trial did not constitute
ineffective assistance of counsel because it was a reasonable
tactical decision made by defense counsel.
Schmitt puts forward three arguments for why defense counsel’s
performance was objectively unreasonable: (1) defense counsel
should have recognized that they could not place the tape into
12
As previously mentioned, the Commonwealth has not appealed
the district court’s finding that Schmitt was acting as a
government agent.
40
evidence during the guilt phase pursuant to Virginia law; (2)
defense counsel should have filed a pretrial motion in limine to
determine whether the tape would be admitted as an exception to the
hearsay rule by the prosecution; and (3) defense counsel “failed to
fully appreciate the value of the Schmitt/Sauer tape to the
prosecution at the penalty phase.” (Appellant’s Br. at 72.)
At the outset, we briefly review the facts facing Schmitt’s
counsel prior to trial. It was without question that Schmitt
committed the robbery and the murder; the only point truly at issue
was whether Schmitt committed capital murder. Prior to trial, the
prosecution provided Schmitt’s counsel with a transcript of the
Sauer/Schmitt telephone call. From the transcript, Schmitt’s
counsel quickly ascertained that the prosecution could use the tape
during the guilt and sentencing phases because the tape contained
inculpatory statements by Schmitt and showed a lack of remorse.
Schmitt told Sauer that he robbed the bank and that he did not
abandon the robbery when the security guard approached him because
he was “committed” to the robbery. (J.A. at 211.) Schmitt also
stated that the security guard’s “eyes got real big” when he saw
Schmitt’s gun.
Moreover, Schmitt’s counsel knew that the bank surveillance
tape did not depict the shooting and that none of the bank
employees could testify to how the shooting occurred. In fact,
Schmitt was the only person who could testify to how the shooting
41
occurred and his phone call to Sauer, whom he believed at the time
was his friend, provided a believable version of the facts. To the
defense’s benefit, Schmitt described in detail the struggle between
himself and the security guard and how he did not intend to kill
the guard. The tape also revealed Schmitt’s humane side because he
repeatedly expressed concern over his friends that had been
implicated in the robbery. Schmitt’s defense counsel also knew
that if the jury convicted Schmitt on the capital murder charge,
they could still successfully have Lt. Clarcq testify to the
remorse Schmitt felt after the murder and how Schmitt did not
intend to kill the security guard. In essence, Schmitt’s counsel
recognized that the worst-case scenario was that the prosecution
would not introduce the Sauer/Schmitt tape during the guilt phase,
but choose to introduce it during the sentencing phase. Even with
that possibility (which bore true), Schmitt’s counsel determined
that the most sound decision was to not make any move toward the
suppression of the one piece of evidence that could have exculpated
Schmitt from the capital murder charge.
Schmitt’s argument that his counsel were ineffective for
failing to recognize that they could not place the tape into
evidence during the guilt phase is without merit because Schmitt’s
trial counsel were experienced lawyers with a full grasp of the
relevant law and facts. Mr. Collins expressly stated that “the
status of law in Virginia is that if a defendant makes inculpatory
42
statements, that’s admissible against his penal interest. However,
if he makes exculpatory statements, that is not admissible.” (J.A.
at 1095.) Schmitt’s trial counsel, recognizing that Schmitt made
inculpatory statements on the tape, reasonably believed that the
Commonwealth would move the tape into evidence during the guilt
phase and, accordingly, believed that they need not worry about the
fact that they could not enter it into evidence. Because this
court must assess the reasonableness of Mr. Collins’s conduct at
the time he chose not to move to suppress the tape and because Mr.
Collins’s decision was based on a full grasp of the facts and the
relevant law, we cannot say that his decision was objectively
unreasonable. See Strickland, 466 U.S. at 690 (“strategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable”).
Schmitt’s argument that his attorneys should have filed a
pretrial motion in limine also carries little force. The essence
of this argument is that Schmitt’s counsel could have proceeded in
an elaborate scheme by filing a motion in limine on the
admissibility in the guilt phase of the transcript of the call
between the crisis negotiator, Lt. Clarcq, and Schmitt on the night
of his arrest. According to Schmitt, this motion would have served
as a “stalking horse” to determine the outcome if a similar motion
was filed on the more crucial Sauer/Schmitt tape. Schmitt argues
that if the motion in limine on the Clarcq transcript failed,
43
defense counsel could have moved to suppress the Sauer/Schmitt
tape.
Schmitt is correct that the filing of a motion in limine may
have shed some light on the risk that his attorneys were taking by
failing pretrial to move to suppress the Sauer/Schmitt tape.
Nevertheless, this argument misses the mark. Mr. Collins and Mr.
Cooley were well-aware that they stood on solid footing for
suppressing the Sauer/Schmitt tape and that they probably could not
move the Sauer/Schmitt tape into evidence during the guilt phase on
their own. Defense counsel, however, chose not to move to suppress
the Sauer/Schmitt tape because the tape was the most convincing
guilt phase evidence that Schmitt accidentally shot the security
guard. In fact, Schmitt’s attorneys testified that any pretrial
motion relating to the Sauer/Schmitt tape or the crisis negotiator
transcript would have tipped off the prosecution that the defense
wanted to use the tapes during the guilt phase and thus encouraged
the prosecution not to submit the Sauer/Schmitt tape during the
guilt phase. Admittedly, Mr. Cooley testified that, in hindsight,
he would have filed a pretrial motion to suppress the Sauer/Schmitt
tape at the penalty phase while simultaneously seeking admission of
the tape at the guilt phase. Even with the acceptance of Mr.
Cooley’s statement that he should have filed a bifurcated motion as
a reasonable defense strategy, that acceptance does not render the
trial strategy actually instituted by Mr. Cooley objectively
44
unreasonable. In hindsight, almost every lawyer, whether he has
won or lost, recognizes that he could have improved upon some part
of his performance at trial, but that honest recognition does not
necessarily mean that his performance was constitutionally
ineffective. We agree with the district court that
Counsel’s best hope for admitting the most direct and
clear evidence of Schmitt’s only defense to the capital
murder charge rested in the prosecution’s introduction of
the Sauer tape in the guilt phase of the trial. Measured
from that perspective and considering the reasonably
perceived costs and the significant potential benefits,
the decision made by counsel was not “outside the wide
range of professionally competent performance” to forego
a pretrial motion to suppress the tape at issue.
(J.A. at 1564 (quoting Strickland, 466 U.S. at 490).) As such,
Schmitt’s counsel were not ineffective for failing to file a motion
in limine before trial.
Finally, Schmitt contends that his trial counsel were
ineffective because they failed to fully appreciate how damaging
the Sauer/Schmitt tape would be at the sentencing phase. As we
have repeatedly noted, Schmitt’s counsel well understood the
double-edged nature of the Sauer/Schmitt tape. (J.A. 1103 (Mr.
Collins noting that the Sauer/Schmitt tape was “more harmful than
beneficial” at the sentencing phase).) However, they reasonably
believed that the best defense to a death sentence would be a
strong defense during the guilt phase using the Sauer/Schmitt tape
and they had good reason to believe that the prosecution might move
the tape into evidence. Furthermore, when confronted with the fact
45
that the tape was admitted only at the sentencing phase, Schmitt’s
trial counsel made the best of a bad situation by using the
Sauer/Schmitt tape to defeat the vileness aggravating factor
proposed by the prosecution. Thus, it is possible that the
suppression of the Sauer/Schmitt tape could have resulted in the
jury finding present both the vileness and future dangerousness
factors. Schmitt’s trial counsel effectively weighed the “trade-
off” between suppressing the tape and allowing the prosecution to
use the tape in the sentencing phase; although in hindsight their
decision did not bear fruit, the decision to forego moving to
suppress the tape was an objectively reasonable choice.
Accordingly, the Virginia Supreme Court’s rejection of this
ineffective assistance of counsel claim was not unreasonable, and
we may not review the merits of Schmitt’s Massiah claim.
III.
Although we conclude that the prosecution’s missteps in this
case did not affect the outcome of the trial, we emphasize that the
intentional suppression of impeachment material and other
prosecutorial misconduct should not be taken lightly. The Supreme
Court has long emphasized the special role that prosecutors play in
our judicial system. See Banks, 540 U.S. at 696 (compiling cases).
And we could not agree more with the district court’s conclusion
that this prosecution team displayed a disconcerting lack of
respect for its sole responsibility to ensure “that justice shall
46
be done,” as opposed to merely winning the case. Kyles, 514 U.S.
at 439 (internal quotation marks omitted). We strongly encourage
the state prosecution team to revisit and review its obligations
under Virginia state law and constitutional law, especially in
light of the fact that the misconduct was not confined to a single
incident.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
47