Ricky Gray v. David Zook

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5
RICKY JOVAN GRAY,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
No. 14-3
RICKY JOVAN GRAY,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:11−cv−00630−AJT−TCB)
Argued: September 15, 2015 Decided: November 25, 2015
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined. Senior Judge Davis wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Elizabeth Hambourger, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina; Robert Edward Lee, Jr.,
VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee. ON BRIEF: Jonathan P. Sheldon, SHELDON & FLOOD,
PLC, Fairfax, Virginia; David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Mark R.
Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
2
DIAZ, Circuit Judge:
Ricky Jovan Gray appeals the district court’s denial of his
petition for a writ of habeas corpus. His appeal presents two
questions. First, whether the Supreme Court of Virginia, in
resolving factual disputes regarding an ineffective-assistance-
of-counsel claim without an evidentiary hearing, made an
“unreasonable determination of the facts” under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254(d)(2). Because we find that the state court
did not ignore Gray’s evidence or otherwise reversibly err in
resolving factual disputes on the record, we reject this first
challenge. The second question is whether Gray may belatedly
raise in the district court a claim of ineffective assistance of
trial counsel under the Supreme Court’s decision in Martinez v.
Ryan, 132 S. Ct. 1309 (2012). We find that the claim Gray seeks
to raise was presented to, and decided by, the state court.
Therefore, it is not subject to de novo review in the district
court under Martinez.
Accordingly, we affirm the judgment of the district court.
I.
A.
On the morning of January 1, 2006, in the course of a home
burglary, Gray murdered Bryan and Kathryn Harvey and their two
3
young daughters, Ruby and Stella, by tying them up in their
basement and then cutting their throats, stabbing them, striking
them with a claw hammer, and setting fire to their home.
Although Gray was with two accomplices, Ray Dandridge and Ashley
Baskerville, Gray confessed to having committed all of the
killings. The police officer who took Gray’s confession,
Detective Howard Peterman, testified at trial to the
circumstances in which Gray confessed. He also read the
confession to the jury.
The trial was conducted in two phases. In the guilt phase,
the jury convicted Gray of five counts of capital murder. In
the penalty phase, the Commonwealth introduced evidence of
several other killings Gray had committed near the time of the
Harvey murders, including bludgeoning his wife with a lead pipe
two months earlier and suffocating Baskerville and her mother
and stepfather a week after the Harvey murders. Gray offered
evidence of his parents’ abuse and neglect during his childhood,
his repeated sexual abuse at the hands of his brother from a
very early age, and Gray’s consistent drug use, beginning when
he was young. He also offered expert testimony to connect this
evidence to his later violent behavior. Dr. David Lisak, a
psychologist who did not examine Gray, opined on the potential
connection between Gray’s childhood abuse and his violent
behavior as an adult. Dr. Mark Cunningham, a clinical and
4
forensic psychologist who did examine Gray, testified that Gray
was unlikely to be seriously violent in prison.
The jury issued verdicts of life imprisonment on three of
the counts and verdicts of death for the murders of Ruby and
Stella, finding the aggravating factor of “vileness.” On direct
appeal, the Supreme Court of Virginia affirmed Gray’s
convictions and death sentences.
B.
Gray then sought state habeas relief in the Supreme Court
of Virginia. 1 Relevant here, Claim III of that petition alleges
that Gray’s trial counsel failed to make a reasonable
investigation of his confession. According to Gray, he
repeatedly asked police officers for an attorney and a phone
call, but was denied both. Gray also asserts that he told the
police that his drug use on the day of the crime, especially his
use of PCP, left him unable to remember the day’s events. To
fill the gaps in his memory, Gray says, police officers showed
him statements made by his accomplice Dandridge, and he adopted
Dandridge’s account as his own. Had Gray’s trial attorneys
sufficiently investigated these allegations, Gray contends, they
could have had the confession suppressed or, at least, sowed
1
Virginia requires habeas petitioners subject to the death
penalty to apply directly to the state supreme court. Va. Code
Ann. § 8.01-654(C)(1).
5
doubt in the jury’s mind as to the extent of Gray’s
participation in the murders. The warden moved to dismiss,
attaching a joint affidavit from Gray’s trial attorneys.
The Supreme Court of Virginia dismissed Gray’s habeas
claims, save one not relevant here. In dismissing Claim III,
the court held that Gray had shown neither that his trial
counsel performed unreasonably, nor that he suffered prejudice
from deficient performance, the two requirements under
Strickland v. Washington, 466 U.S. 668, 687 (1984). The court
supported its holding with the following findings of fact,
relying heavily on the affidavit of Gray’s trial attorneys:
The record, including the affidavit of counsel,
demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the
murders and that “PCP could not be to blame.”
Furthermore, counsel spoke to every officer involved
in petitioner’s arrest, including Detective Peterman,
and determined that petitioner was not provided any
details from Dandridge’s statement before or during
his statement to the police. The affidavit of counsel
also demonstrates that petitioner never informed
counsel that Detective Peterman had “fed” him the
details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find
any evidence that would have supported a motion to
suppress petitioner’s statements to police.
Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275, 284
(Va. 2011).
6
C.
Gray next filed a federal habeas petition, arguing with
respect to Claim III 2 that the Supreme Court of Virginia’s
dismissal of the claim was based on an unreasonable
determination of the facts under AEDPA’s § 2254(d)(2). The
district court determined that, although the state court made
credibility determinations and weighed the parties’ affidavits
without an evidentiary hearing, “Section 2254(d) affords wide
latitude to state courts in fashioning state habeas procedures
and . . . the procedures adopted by the state court were not,
within the context of this case, inherently unreasonable or
unreliable.” Gray v. Pearson, No. 1:11-cv-630, 2012 WL 1481506,
at *12 (E.D. Va. Apr. 27, 2012). Considering “the totality of
the state court record,” the district court concluded that “the
2 Gray’s original habeas petition includes ten claims. The
first alleges that prosecutors (a) failed to disclose
exculpatory evidence regarding Dandridge’s culpability and (b)
made false statements about Gray’s confession. The remaining
claims allege ineffective assistance for failure to: present
evidence of relative culpability between Gray and Dandridge
(Claim II); make a reasonable investigation of Gray’s statements
to police (Claim III); protect Gray’s double jeopardy right
(Claim IV); protect Gray’s right to plead guilty and have
sentencing factors determined in a constitutional manner (Claim
V); object to the prosecutor’s comment on Gray’s failure to
testify (Claim VI); ensure jurors were properly instructed
(Claim VII); move for a mistrial based on juror misconduct and
object to Gray’s exclusion from a hearing on the issue (Claim
VIII); and present sufficient mitigating evidence at sentencing
(Claim IX). Claim X alleges ineffective assistance based on the
cumulative effect of Claims II-IX.
7
state court’s determinations of fact were not unreasonable.”
Id.
D.
After Gray filed his federal habeas petition, but before
the district court had ruled on it, the Supreme Court decided
Martinez v. Ryan. Martinez provides a narrow exception to the
general rule, stated in Coleman v. Thompson, 501 U.S. 722, 752–
53 (1991), that errors committed by state habeas counsel do not
provide cause to excuse a procedural default. The Supreme Court
summarized its holding as follows:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez, 132 S. Ct. at 1320.
Three aspects of the decision are notable here. First,
Martinez permits a petitioner to excuse certain procedurally
defaulted ineffective-assistance-of-trial-counsel claims. But
if claims are not procedurally defaulted—that is, they were
properly presented to the state court—then Martinez does not
apply. See Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir.
2014) (holding that “Martinez does not apply to claims that were
fully adjudicated on the merits by the state habeas court
8
because those claims are, by definition, not procedurally
defaulted”). Second, because a petitioner raising a Martinez
claim never presented the claim in state court, a federal court
considers it de novo, rather than under AEDPA’s deferential
standard of review. See § 2254(d) (providing review standards
for “any claim that was adjudicated on the merits in State court
proceedings”). Finally, a Martinez claim requires a showing
that state habeas counsel was ineffective.
Because Gray’s state habeas attorneys also represented him
in the federal proceedings, a conflict of interest arose
regarding counsel’s ability to identify and argue potential
Martinez claims. Gray therefore moved for appointment of new
counsel. The district court denied the motion.
The district court also denied Gray’s habeas petition in
full. Gray, 2012 WL 1481506, at *20. The district court then
certified two questions to this court: first, whether the state
habeas court’s dismissal of Claim III was based on an
unreasonable determination of the facts; and second, whether
Martinez entitled Gray to the appointment of independent
counsel. We reserved the first question and answered the second
in the affirmative, directing the district court to appoint
independent counsel to explore the existence of Martinez claims.
Gray v. Pearson, 526 F. App’x 331, 335 (4th Cir. 2013).
9
After the district court appointed new counsel and granted
Gray’s motions to appoint new experts and an investigator, Gray
filed an amended petition. He presented four claims, all based
on Martinez, only one of which, Claim XI, is relevant here. 3 In
this claim, Gray asserts that his trial attorneys were
ineffective in failing to present evidence of Gray’s voluntary
intoxication at the time of the crimes and that his state habeas
attorneys were ineffective for not raising the claim in the
Supreme Court of Virginia.
The district court treated Claim XI as two distinct
ineffective-assistance claims, one regarding the guilt phase,
and one regarding the penalty phase. Gray v. Davis, No. 1:11-
cv-630 (AJT/TCB), 2014 WL 2002132, at *4 (E.D. Va. May 13,
2014). As to the guilt-phase claim, the district court
dismissed it for failing to meet certain requirements stated in
Martinez. 4 As to the penalty-phase claim, the district court
3
The amended petition incorporates the original petition by
reference, accepting that the original ten claims had already
been dismissed by the district court. Accordingly, the claim
numbering in the amended petition begins at XI. The other three
Martinez claims, which are not before us, allege that Gray’s
constitutional rights were violated by a juror’s consideration
of extrinsic evidence (Claim XII), that trial counsel failed to
conduct an adequate mitigation investigation (Claim XIII), and
that the cumulative errors of trial counsel constituted
ineffective assistance (Claim XIV).
4
The district court found two faults with the claim under
Martinez. First, Gray could not make a substantial showing that
(Continued)
10
found that Gray’s state habeas counsel had raised it in the
state court. Id. at *11. As a result, the claim was not
procedurally defaulted, and Martinez did not apply. See id.
And even if the penalty-phase claim had been procedurally
defaulted, the district court held, it likewise failed to meet
the other Martinez requirements. Id.
The district court denied the amended petition, but issued
a certificate of appealability with respect to the penalty-phase
claim only. 5 This appeal followed.
II.
Two issues are before us on appeal. The first is the
reserved claim from Gray’s prior appeal to this court: whether
the Supreme Court of Virginia’s dismissal of Claim III—
ineffective assistance of trial counsel in failing to
investigate Gray’s confession—was “based on an unreasonable
trial counsel performed deficiently, or, assuming they had, that
Gray was prejudiced as a result. Gray, 2014 WL 2002132, at *5-
13. Second, Gray failed to make a substantial showing that his
state habeas counsel were ineffective by not raising the trial-
counsel claim. Id. at *13-14. Assuming without deciding that
state habeas counsel’s performance was deficient, the district
court held that Gray could not show prejudice. Id.
5 Although Gray moved to expand the certificate of
appealability to include a juror misconduct claim and a separate
ineffective-assistance claim, he did not move to include the
guilt-phase claim. We denied the motion.
11
determination of the facts” under AEDPA’s § 2254(d)(2) because
the court resolved disputed issues of fact without an
evidentiary hearing. The second issue is whether, under
Martinez, Gray may belatedly raise in the district court an
ineffective-assistance-of-trial-counsel claim—namely, that trial
counsel failed during the penalty phase to present evidence of
Gray’s voluntary intoxication at the time of the crimes. We
consider each issue in turn, reviewing de novo the district
court’s denial of a petition for a writ of habeas corpus.
Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009).
A.
We first consider Gray’s argument under § 2254(d)(2) that
the Supreme Court of Virginia’s decision to deny Gray’s
ineffective-assistance-of-trial-counsel claim warrants no
deference from the federal courts. According to Gray, the state
court made an “unreasonable determination of the facts” by
ignoring his evidence and by resolving factual disputes without
an evidentiary hearing. We find neither contention persuasive.
AEDPA permits a federal habeas court to review claims
decided on the merits by state courts when the state court
adjudication “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). An unreasonable determination of the facts is not
12
merely an incorrect determination, but one “sufficiently against
the weight of the evidence that it is objectively unreasonable.”
Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010).
1.
Gray first argues that the Supreme Court of Virginia’s fact
determination was unreasonable because the court ignored his
evidence. He is concerned primarily with the affidavit of
defense investigator Melvin Knight, who interviewed Gray and who
also interviewed some of the police officers involved in Gray’s
arrest and interrogation. In the affidavit, Knight relates
statements that Gray made about the circumstances surrounding
his confession, including (1) that Gray had asked police for an
attorney, (2) that Gray had told police he was fuzzy on the
details of the crimes because of drug use at the time of the
crimes, and (3) that the police had “fed” him details of the
crimes from his accomplice Dandridge. The record, however, does
not support Gray’s assertion that the Supreme Court of Virginia
ignored his evidence.
When a state court apparently ignores a petitioner’s
properly presented evidence, its fact-finding process may lead
to unreasonable determinations of fact under § 2254(d)(2).
Moore v. Hardee, 723 F.3d 488, 499 (4th Cir. 2013) (citing
Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)); see also
Miller-El v. Cockrell, 537 U.S. 322, 346 (2003) (expressing
13
concern that a state court “had before it, and apparently
ignored” petitioner’s probative evidence of a constitutional
violation). In Taylor, for example, the Ninth Circuit found
factual determinations unreasonable when the state court ignored
a “highly probative” affidavit corroborating the petitioner’s
claim that his confession had been coerced and he had been
denied an attorney. 366 F.3d at 1006 (noting that “[a] rational
fact-finder might discount [the affidavit] or, conceivably, find
it incredible, but no rational fact-finder would simply ignore
it”).
But as we said in Moore, a state court need not refer
specifically to each piece of a petitioner’s evidence to avoid
the accusation that it unreasonably ignored the evidence. See
723 F.3d at 499; cf. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.
2000) (en banc) (holding that “we may not ‘presume that [the]
summary order is indicative of a cursory or haphazard review of
[the] petitioner’s claims’” (alteration in original) (quoting
Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998))).
Rather, to determine whether the state court considered or
ignored particular evidence, the federal court must review “the
entirety of the [state] court’s order.” Moore, 723 F.3d at 499.
In Moore, the petitioner argued before the state court that
his trial counsel was ineffective in failing to call an expert
on the inaccuracy of eyewitness memory. Id. at 492. In support
14
of the claim, the petitioner filed an affidavit from such an
expert explaining what evidence trial counsel could have
presented. Id. at 492–93. The state court denied the claim,
finding that trial counsel had “fully presented” evidence
relating to petitioner’s eyewitness identification. Id. at 493.
The state court listed each piece of the petitioner’s evidence
except the expert’s affidavit and then said that the petitioner
did “not suggest that there is any more evidence regarding the
identification.” Id. The district court, taking this assertion
to mean that the state court had ignored the affidavit, found
the determination of fact unreasonable. Id. at 499.
We reversed, noting that the state court, immediately after
concluding that the petitioner had not offered “any more
evidence,” went on to say that “there was no showing to justify
or require an expert on identification.” Id. This statement,
we said, demonstrated that the state court considered the
petitioner’s submission and reached a conclusion as to which
“‘[fair-minded] jurists could disagree.’” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 101 (2011)).
As in Moore, the record here demonstrates that the Supreme
Court of Virginia did not ignore Gray’s evidence. Rather, the
court simply determined that Gray’s evidence was not credible.
We base our conclusion in part on the court’s denial of a motion
to strike the Knight affidavit. The warden moved to strike the
15
affidavit as inadmissible hearsay. The parties ultimately
traded five briefs on the issue, and, in its decision denying
Gray’s petition, the Supreme Court of Virginia denied the motion
to strike. Gray, 707 S.E.2d at 290. The denial of the motion
after substantial briefing indicates that the state court
considered the affidavit.
Our conclusion is strengthened by the minimal probative
value of the Knight affidavit. Whereas in Taylor the state
court’s failure to discuss petitioner’s “highly probative”
evidence was inexplicable, here the explanation is simple: the
Supreme Court of Virginia could reasonably have determined that
the Knight affidavit did not warrant discussion. See Taylor,
366 F.3d at 1001 (“To fatally undermine the state fact-finding
process, and render the resulting finding unreasonable, the
overlooked or ignored evidence must be highly probative and
central to petitioner’s claim.”). Because fair-minded jurists
could disagree on the correctness of this conclusion, Gray is
not entitled to relief on this aspect of his claim. See Moore,
723 F.3d at 499.
2.
Next, Gray argues that the Supreme Court of Virginia’s
determinations of fact were necessarily unreasonable because the
court failed to hold an evidentiary hearing. Gray stops short
of arguing that evidentiary hearings are always required,
16
claiming instead that one was necessary here because of the
strength of his pleadings and supporting evidence. The district
court held that the lack of a hearing did not itself render the
determination of facts unreasonable, and its own review of the
record likewise confirmed that the determination was not
unreasonable. Gray, 2012 WL 1481506, at *12.
A state habeas court need not hold an evidentiary hearing
in every case to make reasonable fact determinations. Strong v.
Johnson, 495 F.3d 134, 139 (4th Cir. 2007). In Strong, the
petitioner alleged ineffective assistance of counsel, claiming
he had asked his attorney to file an appeal, but the attorney
failed to do so despite assurances he would. Id. at 140. The
state filed a motion to dismiss, attaching the attorney’s sworn
letter attesting he had met with the petitioner twice to discuss
the appeal and the petitioner had ultimately agreed no appeal
would be filed. Id. Without holding an evidentiary hearing,
the state court granted the motion to dismiss, essentially
adopting the attorney’s version of events and rejecting the
petitioner’s:
The record, including the affidavit of counsel,
demonstrates that petitioner initially instructed
counsel to appeal his convictions and counsel advised
petitioner that he had no grounds upon which to
appeal. Petitioner told counsel he understood and
agreed that an appeal would serve no purpose. . . .
Petitioner has failed to establish that he objectively
demonstrated his intent to appeal his conviction.
17
Id. at 137–38.
We held that the state court’s determination of disputed
facts without a hearing was not unreasonable. Strong, 495 F.3d
at 140. “[T]here is no prohibition,” we explained, “against a
court making credibility determinations based on competing
affidavits in certain circumstances,” including “when one
affidavit is cryptic or conclusory with respect to a contested
issue of fact and the other affidavit sets out a detailed
account of events.” Id. at 139.
As we explain below, because Gray’s allegations are
similarly conclusory and the record presents “a detailed account
of events” contradicting the allegations, the Supreme Court of
Virginia permissibly resolved disputed facts without an
evidentiary hearing.
a.
In support of his ineffective-assistance claim in the
Supreme Court of Virginia, Gray presented evidence in the form
of (1) the Knight affidavit, (2) an account of Gray’s confession
given by Detective Peterman during a hearing held more than a
year after the trial, and (3) his own allegations in the
18
petition. 6 The warden supported its motion to dismiss with an
affidavit from Gray’s trial attorneys.
As to his allegation that he requested an attorney and a
phone call, Gray’s sole evidence is Knight’s retelling of Gray’s
own account: “Mr. Gray told me that during his January 7, 2006,
interrogation by police in Philadelphia, he repeatedly asked for
an attorney and a phone call.” J.A. 382; see id. at 118. This
bare, self-serving allegation, however, is strongly contradicted
by the record.
Although Detective Peterman was not specifically asked at
trial whether Gray requested an attorney or a phone call, his
detailed and coherent account of the confession rebuts Gray’s
allegation. Peterman described an interaction marked by
cooperation rather than resistance. See id. at 19-21 (Peterman
testifying that he told Gray he knew “the truth according to Ray
Dandridge,” and Gray responded, “Can I tell you my side of the
story?”). Moreover, he described Gray as initiating the
discussion.
We also know from Gray’s signed waiver of counsel that, at
least in the moments before taking Gray’s confession, Peterman
6 While Gray also attempted to rely on the affidavit of
defense mitigation investigator Judith McClendon, the Supreme
Court of Virginia struck that affidavit on the warden’s motion,
Gray, 707 S.E.2d at 290, and Gray offers no challenge to that
decision, see Appellant’s Br. 28-29.
19
informed Gray of his right to counsel. See J.A. 38–39 (Gray
answering “no” to the question, “Do you want to talk to a lawyer
at any time or have a lawyer with you while we ask you
questions?”). If Peterman’s story were false, one would expect
Gray to provide a competing account or, at the very least,
explain his apparently valid waiver of counsel. But Gray has
failed to do either.
In addition to the evidence at trial, Gray’s attorneys say
that they investigated the confession. According to their joint
affidavit, they “travelled to Philadelphia, Pennsylvania, and
spoke directly to all the officers that had dealt with Gray,
including everyone in the ‘chain of custody’ of his arrest.”
Id. at 700. Although the attorneys “were actively looking for
suppression issues,” they “could not find grounds for even a
colorable claim to suppress any of the statements Gray made to
law enforcement.” Id. at 701. Gray’s attorneys do not state
specifically whether they investigated Gray’s allegation that he
requested an attorney, or even whether they knew of it. But
they do indicate that their interviews with the officers
involved in Gray’s confession did not uncover evidence that Gray
was denied counsel he had requested.
Based on our review of the record, we cannot say that the
Supreme Court of Virginia was objectively unreasonable in
discounting Gray’s allegation that he was denied counsel and a
20
phone call. The assertion is bare and belated, and the record
evidence contradicting it is detailed.
We reach the same conclusion as to Gray’s allegation that
he could not remember the details of the crimes and was fed his
confession by police. In his state petition, Gray asserts “that
he told police that he didn’t remember many details because he
was high on a combination of marijuana, ecstasy and PCP when the
crimes were committed.” Id. at 118. He then describes how the
police fed him his confession:
[D]etectives went back and forth between his room and
the room in which they were interrogating Dandridge
and showed him Dandridge’s signed statement with full
disclosure and complete details about each of the
murder scenes, read him the statement, and, although
Gray was not clear on the details, used Dandridge’s
statement to fashion a statement purportedly from
Gray.
Id. Knight independently confirmed with Peterman that Gray had
told the detective “that his memory of the details of the crimes
was fuzzy.” Id. at 384. 7
Gray’s allegation of being fed details is hardly detailed,
and unanswered questions make it difficult to credit. Which
details of Gray’s confession came from Dandridge? Why did Gray
accept them when he could not remember what had happened? And
7Gray also relies on statements made by Detective Peterman
in a hearing on an unrelated matter, as discussed in detail
below.
21
why, if he was simply accepting the confession as the police
provided it, did he bother to amend his statement, apparently to
remove evidence of premeditation? See Suppl. J.A. 44 (“Q. What
happened after you talked [the Harvey family] downstairs [i.e.,
into the basement]? A. We was playing like everything was
gonna be all right. Everything was all right.”).
As further support for his allegation, Gray points to
Detective Peterman’s testimony given more than a year after
Gray’s trial in a hearing on a separate criminal matter. There,
Peterman states that before he recorded the confession as a
formal question-and-answer dialogue, he first asked what Gray
knew about the crime. Gray argues that this statement proves
that Peterman had the opportunity during preliminary discussions
with Gray to learn of the gaps in Gray’s memory and fill them in
with details from Dandridge’s account. Peterman, however, did
not give the slightest hint of having coached Gray on his
answers. See J.A. 396 (“[Gray’s attorney to Peterman]: And is
it fair to say that the way you would approach it is you would
talk to him about a specific incident before committing anything
to writing? [Peterman]: Would I give him information about it?
I would tell Rick what I wanted to know about the incident that
I was questioning him about, and if he had any information about
it that he wanted to share with me.”).
22
Gray also contends that this new testimony proves that
Peterman lied at trial about the confession. At trial, Peterman
described in general terms sitting down with Gray and obtaining
Gray’s waivers of his Fifth and Sixth Amendment rights. The
prosecutor then asked Peterman a series of questions about
Gray’s demeanor during the confession and established that the
confession had been recorded only in writing. Next, the
prosecutor asked, “Detective Peterman, is there any aspect of
your interview with Mr. Gray that we haven’t gone over that
leads up to the actual substance of the interview?” Id. at 23.
“No,” Peterman responded. Id. at 24. The prosecutor continued:
“Now, am I correct that you asked him a series of questions and
he provided a series of answers to you?” Id. Peterman replied,
“That’s correct.” Id. The prosecutor then had Peterman read
the recorded questions and answers to the jury.
Gray posits that this exchange shows Peterman attempted to
conceal off-the-record discussions with Gray. We find this
interpretation unconvincing. Peterman never denied having an
informal preliminary discussion, nor did his responses at trial
foreclose the possibility.
Critically, when Peterman was asked at trial whether he “at
any point assist[ed] Mr. Gray in his recollection of what
happened,” including “tell[ing] [him] anything that Mr.
Dandridge had told” Peterman, the detective replied, “No.” Id.
23
at 30. In Peterman’s account, Gray prompted the conversation
about the crimes after learning that Peterman had already spoken
with Dandridge. Having acknowledged his constitutional rights,
including his right to counsel, Gray answered Peterman’s
questions about the crimes. Gray reviewed the statement as
Peterman had recorded it and certified that it was correct and
accurate. And according to the Knight affidavit, Peterman gave
a similar account of the confession prior to trial. See id. at
384 (noting that Peterman “denied that a ‘dry run’ interview
preceded the written verbatim statement”).
Trial counsel’s joint affidavit corroborates Peterman’s
account of the confession:
There was no evidence that the police fed Gray any
facts from Dandridge’s statements when they
interviewed Gray. The information we obtained about
the interview procedures all was consistent with the
trial testimony: Gray asked, during a bathroom break,
if the police had spoken to Dandridge; the detective
said yes; Gray asked what Dandridge said; the answer
was “everything” or some similar general comment; and
Gray then proceeded to give his statement.
Id. at 701.
Trial counsel also stated that “Gray did not tell us that
he had been fed details of the crimes.” Id. According to the
Knight affidavit, however, Gray told Knight precisely that. The
Supreme Court of Virginia, without referring to the Knight
affidavit, found that “[t]he affidavit of counsel . . .
demonstrates that petitioner never informed counsel that
24
Detective Peterman had ‘fed’ him the details of the crimes or of
Dandridge’s statements to police.” Gray, 707 S.E.2d at 284.
While we find this troubling to the extent it suggests the state
court preferred the attorneys’ affidavit to Knight’s, we
nevertheless cannot say that the state court’s decision was
based on “an unreasonable determination of the facts.”
§ 2254(d)(2). Even if the attorneys knew about Gray’s
allegations, the evidence we have described supported the
Supreme Court of Virginia’s determination that Gray’s
allegations were not credible.
Finally, Gray’s trial attorneys contradict his claim that
drug use clouded his memory of the crime: “Gray insisted
repeatedly that PCP could not be to blame. He insisted that he
knew what he was doing.” J.A. 706; see also id. 720 (doctor
conducting competency evaluation noting that Gray “insisted he
was never so intoxicated that he felt it destroyed his ability
to understand what was happening”); id. 726 (doctor conducting
evaluation of Gray’s mental condition at the time of the crime,
noting that Gray “denied that as a result of his drug use . . .
he was unaware of his actions at the time of the present
offenses”).
In the face of all this, we cannot say that the state
court’s decision to reject Gray’s ineffective-assistance claim
25
without holding a hearing resulted in unreasonable
determinations of fact. See § 2254(d)(2).
b.
To persuade us otherwise, Gray cites a number of cases in
which the United States Supreme Court has required a state court
to hold an evidentiary hearing. But while these cases support
the general proposition that due process sometimes requires a
hearing, they do not establish that one was required here.
Gray’s reliance on Panetti v. Quarterman, 551 U.S. 930
(2007), is particularly misplaced. Whereas Panetti addresses
the unreasonable application of federal law under § 2254(d)(1),
Gray is fundamentally attacking the way the state court
determined facts, not the way it applied a particular Supreme
Court precedent. 8 In Panetti, the district court failed to hold
an incompetency hearing as required under Supreme Court
precedent. Id. at 948. Unlike the petitioner in Panetti, Gray
has not identified a Supreme Court case that entitles him to a
hearing. Strickland, the basis for Gray’s claim, certainly
provides no such entitlement. See 466 U.S. at 700 (“The state
8Although Gray occasionally couches his arguments in terms
of an “unreasonable application” of federal law under
§ 2254(d)(1), we find that his arguments are better addressed
under § 2254(d)(2). See Winston, 592 F.3d at 553 (noting that
Ҥ 2254(d)(2) describes the standard to be applied to claims
challenging how the state courts determined the facts”).
26
courts properly concluded that the ineffectiveness claim was
meritless without holding an evidentiary hearing.”).
Nor was Gray’s claim given the kind of short-shrift
treatment that the Supreme Court rejected in Pennsylvania ex
rel. Herman v. Claudy, 350 U.S. 116 (1956), and Palmer v. Ashe,
342 U.S. 134 (1951). In Claudy, the petitioner alleged that his
confession and guilty plea had been coerced by threats to
himself and his family, and that he was denied the benefit of
counsel. 350 U.S. at 117. The state denied the allegations
and, without holding a hearing, the state court summarily
dismissed. Id. at 117–18. According to the Supreme Court,
summary dismissal of the petitioner’s claims “merely because the
allegations of his petition were contradicted by the prosecuting
officers” was unreasonable. Id. at 123. Here, by contrast, the
Supreme Court of Virginia had not only the officers’ word
against Gray’s, but also contradictory statements from Gray and
the affidavit of Gray’s trial attorneys.
Similarly, in Palmer, the Court required a state court to
provide a hearing to determine whether the petitioner should
have been afforded counsel where he alleged he was
intellectually disabled and police had tricked him into pleading
guilty to armed robbery when he thought he was pleading to the
less serious crime of breaking and entering. 342 U.S. at 136–
38. A hearing was necessary because the “record does not even
27
inferentially deny petitioner’s charge that the officers
deceived him, nor does the record show an understanding plea of
guilty from this petitioner, unless by a resort to speculation
and surmise.” Id. at 137. Here, again, Gray’s case is quite
different—the record provides strong evidence that Gray’s claims
are not credible. 9
Finally, Gray directs our attention to Brumfield v. Cain,
135 S. Ct. 2269 (2015). There, the state court denied
petitioner an evidentiary hearing in which to prove that he was
intellectually disabled under Atkins v. Virginia, 536 U.S. 304
(2002). Brumfield, 135 S. Ct. at 2274–75. In finding some of
the state court’s fact determinations unreasonable, the Supreme
Court took into account what evidentiary standard would entitle
the petitioner to a hearing: “Brumfield needed only to raise a
‘reasonable doubt’ as to his intellectual disability.” Id. at
2281. Because this standard imposed a low burden of proof on
Brumfield, the Court concluded that he met the “reasonable
doubt” standard even though “other evidence in the record before
9Nor is McNeal v. Culver, 365 U.S. 109 (1961), helpful to
Gray. As in Claudy and Palmer, the petitioner’s allegations of
a constitutional violation in McNeal were not significantly
called into question by the record. Id. at 117 (“On the present
record it is not possible to determine [the allegations’]
truth.”).
28
the state court may have cut against Brumfield’s claim of
intellectual disability.” Id. at 2280.
Gray contends that, as in Brumfield, the Supreme Court of
Virginia’s findings of fact are unreasonable under the
applicable evidentiary standard: “[T]he state court in Gray’s
case failed to recognize that Gray’s evidence, viewed in the
light most favorable to him, should defeat the Warden’s motion
to dismiss.” Appellant’s Letter Br. 2. To the extent Gray
implies that the state court was not permitted to discount his
evidence where it was contradicted by the record, his argument
is in tension with Strong. 495 F.3d at 139 (noting “there is no
prohibition against a court making credibility determinations
based on competing affidavits in certain circumstances”). And
nothing in Brumfield casts doubt on our precedent.
In sum, because Gray’s claim of ineffective assistance of
counsel is based on his own “conclusory” allegations, and
because the record provides sufficient evidence to contradict
them, we hold that, as in Strong, the state court’s
determination of the facts was not objectively unreasonable even
without an evidentiary hearing.
B.
We next consider Gray’s contention that he is entitled to
raise in the district court a claim of ineffective assistance of
trial counsel under Martinez v. Ryan. As we have explained,
29
Martinez permits a petitioner, under certain circumstances, to
excuse a procedural default and bring a claim in federal court
that was not raised in state court. Such a claim, never having
been heard by a state court, is reviewed de novo. As a result,
the usual roles of the habeas petitioner and the government are
reversed here. Gray, seeking de novo review, argues that his
ineffective-assistance-of-trial-counsel claim was procedurally
defaulted—an outcome that would normally bar the claim. The
warden, seeking to deny Gray the benefit of Martinez, argues
that Gray properly presented the claim to the Supreme Court of
Virginia.
The district court sided with the warden, holding that the
trial-counsel claim was not procedurally defaulted and therefore
Martinez did not apply. See Gray, 2014 WL 2002132, at *11. The
district court compared the “new” claim with claims already
presented to the Supreme Court of Virginia, concluding that
“Gray’s [new] Claim XI differs from his previously asserted
Claim IX only in that it is framed exclusively within the
context of a voluntary intoxication defense and the effect such
a presentation would have likely had on a jury who found a death
sentence.” Id.
As we explain below, we agree with the district court that
the claim was properly presented to the Supreme Court of
Virginia and thus not procedurally defaulted. The claim
30
therefore cannot be reviewed de novo under Martinez. As a
result, we do not consider the district court’s alternate
holdings that, under Martinez, the claim is not “substantial”
and Gray’s state habeas counsel was not ineffective in failing
to raise it. See id. at *5–14.
1.
Before seeking federal habeas review of a claim, a
petitioner ordinarily must raise that claim in the state court,
complying with state procedural rules and exhausting available
state remedies. See Coleman, 501 U.S. at 750. When a
petitioner fails to comply with state procedural rules and a
state court dismisses a claim on those grounds, the claim is
procedurally defaulted and federal review is generally
foreclosed. Id. at 729. To overcome a procedural default, a
petitioner must demonstrate either (1) cause and resulting
prejudice, or (2) that the failure to review the claim “will
result in a fundamental miscarriage of justice.” Id. at 750.
Likewise, when a habeas petitioner fails to exhaust state
remedies for a claim, federal review is not available until the
petitioner either returns to state court with the claim or
demonstrates that such an attempt would be futile, in which case
the claim is treated as procedurally defaulted. See Breard v.
Pruett, 134 F.3d 615, 619 (4th Cir. 1998). The purpose of these
requirements, in keeping with the principles of comity and
31
federalism, is to give the state courts an opportunity to
consider a defendant’s claims and to correct constitutional
violations. See Rose v. Lundy, 455 U.S. 509, 518–19 (1982). To
exhaust a claim, the petitioner must present the state court
with “both the operative facts and the controlling legal
principles.” Winston, 592 F.3d at 549.
But if a claim is exhausted in state court and not
procedurally defaulted, then it was adjudicated on the merits
and is subject to review under the deferential standards set
forth in AEDPA’s § 2254(d). See Richter, 562 U.S. at 99.
2.
Gray cannot raise his Martinez claim unless it was
procedurally defaulted, and that question in turn depends on
whether Gray exhausted the claim in the Supreme Court of
Virginia. Unlike in Martinez, where the state court barred the
petitioner’s claim on procedural grounds, here Gray argues that
he is presenting “a new, unexhausted claim” that would be futile
to take back to the Virginia courts. Appellant’s Suppl. Br. 43.
We hold that Gray properly exhausted his ineffective-
assistance-of-trial-counsel claim in his state habeas
proceedings. Most notably, in Claim IX of his state petition,
titled “Gray’s Trial Counsel Was Ineffective At Sentencing,”
Gray argued that Dr. Cunningham, a clinical and forensic
psychologist, “could have provided expert testimony on Gray’s
32
use of PCP and other drugs at the time of the offense to show
how studies link such use in individuals such as Gray to violent
behavior and moral responsibility.” J.A. 153 (emphasis added)
(citation omitted). This statement made explicit what was
implicit elsewhere in the state habeas petition: Gray believed
that his trial counsel, during the sentencing proceeding, failed
to put before the jury adequate evidence of his voluntary
intoxication at the time of the crimes. See id. at 146
(faulting trial counsel for failing to provide “expert testimony
to explain what precipitated the drug use and the impact of the
drug use on the defendant’s moral culpability and behavior”);
id. at 146–47 (“The presentation of drug use without expert
testimony was ineffective assistance.”); id. at 147–48 (arguing
that Dr. Lisak could have explained to the jury that “drugs
became the central focus of [Gray’s] life and the primary
motivator of much of his behavior, including criminal
behavior”).
We conclude that Gray exhausted the claim because a
“reasonable fact-finder . . . could have found the facts
necessary to support the petitioner’s claim from the evidence
presented to the state courts.” Winston, 592 F.3d at 551. The
claim was therefore not procedurally defaulted.
33
3.
Gray insists that the claim is not exhausted because his
newly proffered evidence in the district court “fundamentally
alters the nature of any claim that may have been before the
state court.” Suppl. Reply Br. at 2. But a properly exhausted
state claim is not necessarily altered by the submission of new
evidence on federal habeas review. Winston, 592 F.3d at 549.
Gray relies on Wise v. Warden, in which we held that the
petitioner’s introduction of previously undisclosed “critical
evidence” in his federal habeas petition rendered the claim
unexhausted. 839 F.2d 1030, 1034 (4th Cir. 1988). However, as
we later explained in Winston, Wise stands for the proposition
that a petitioner may not support a claim in state court with
“mere conjecture” and subsequently provide the necessary
evidentiary support for the claim on federal habeas review.
Winston, 592 F.3d at 551 (explaining that Wise “distinguish[ed]
a claim without evidentiary support from one with evidentiary
support”).
Here, Gray’s new evidence, including affidavits from a
clinical psychologist and a neuropharmacologist, has perhaps
strengthened the claim, but it has not “fundamentally altered”
it. The heart of the claim remains the same: his trial
attorneys should have done more to show how Gray’s intoxication
at the time of the crimes lessened his culpability. Moreover,
34
while Gray’s new expert affidavits provide a great deal of
information about the cumulative effects of PCP, their
conclusions necessarily remain speculative without specific
evidence of how intoxicated Gray was at the time of the crimes.
See, e.g., Suppl. J.A. 244 (“Had I been able to test Mr. Gray
close to the time of the crime, the results would likely have
shown very clear impairment.”); id. at 251 (“Mr. Gray’s memory
was inadequate for me to determine with precision his state of
mind and symptoms during the commission of these crimes. The
amnesia itself is consistent with his report of PCP use.”); id.
at 252 (“It is abundantly clear that around the time of the
crimes . . . he was using [PCP] . . . along with other drugs,
including marijuana and alcohol.”). So while the addition of
the expert affidavits certainly places greater emphasis on the
issue of Gray’s intoxication, the new evidence has not
“fundamentally altered” the claim.
In sum, because Gray exhausted his claim in the state
court, it was not procedurally defaulted. As a result, the
district court properly dismissed Gray’s Martinez claim. 10
10Because we find the Martinez claim may not be reviewed de
novo in the district court, we do not address Gray’s argument
that the district court was required to hold an evidentiary
hearing on it.
35
III.
For the reasons given, we affirm the district court’s
dismissal of Gray’s petition.
AFFIRMED
36
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
I agree with my friends in the majority that Ricky Jovan
Gray exhausted his claim that trial counsel were
constitutionally ineffective in failing to present evidence
during the penalty phase of his trial that he was voluntarily
intoxicated during the commission of the crimes. Furthermore,
because a “reasonable fact-finder . . . could have found the
facts necessary to support [Gray’s] claim from the evidence
presented to the state court[],” Winston v. Kelly, 592 F.3d 535,
551 (4th Cir. 2010), I agree with the majority that the district
court properly dismissed Gray’s Martinez claim. But I disagree,
respectfully, with the majority’s determination that the Supreme
Court of Virginia’s resolution of disputed issues of fact, based
on conflicting and partially unaddressed sworn affidavits,
without an evidentiary hearing, did not amount to an
unreasonable determination of the facts under 28 U.S.C. §
2254(d)(2). I therefore concur in part and dissent in part.
In his habeas petition to the Supreme Court of Virginia,
Gray presented several claims of ineffective assistance of
counsel. He grounded one such claim in his trial counsel’s
alleged failure to undertake a reasonable investigation into the
circumstances surrounding his confession. Gray alleged that,
during the course of his January 7, 2006 police interrogation,
37
he had repeatedly requested an attorney and a phone call, but
the police denied both requests, continued the interrogation,
and ultimately obtained his written confession. Gray also
asserted that he had told the police that he could not remember
many details of the crimes because of his drug use during the
day in question. Gray claimed that the police had responded by
showing him the statement of one of his accomplices, Ray
Dandridge, and by helping Gray fashion his own confession in
reliance on many of the details included in Dandridge’s
statement.
Importantly, Gray alleged in his habeas petition that he
had expressly informed his trial counsel of the details
surrounding his interrogation and confession during a February
10, 2006 meeting. Even though Gray had relayed this
information, his trial counsel allegedly failed to conduct a
reasonable investigation into these matters. Had his trial
counsel adequately investigated the circumstances surrounding
Gray’s interrogation and confession, Gray asserted, his trial
counsel could have moved to suppress his confession or used the
results of the investigation to impeach the testimony of
Detective Howard Peterman during trial. *
*Detective Peterman, of the Philadelphia Police Department,
testified at length at trial about the circumstances that led to
his questioning of Gray and the substance of Gray’s written
(Continued)
38
Gray supported his ineffective assistance of counsel claim
and his recollection of the January 7, 2006 police interrogation
and confession with the affidavit of Melvin B. Knight. Knight
was an investigator with the Office of the Capital Defender of
the Central Region of Virginia and was tasked with assisting
Gray’s trial counsel in preparing Gray’s defense. Prior to his
employment with the Office of the Capital Defender, Knight was a
law enforcement officer with the City of Richmond Police
Department for more than twenty-five years.
In his affidavit, Knight recounted his February 10, 2006
interview with Gray and explained that Gray had expressly stated
that he had asked for an attorney and a phone call during his
questioning by police. Knight also remembered Gray mentioning
that he could not remember many details of the crimes because he
had been high on a combination of marijuana, ecstasy, and PCP at
the time the crimes were committed. Gray also indicated,
according to Knight, that he had shared this information with
the police. Gray then told Knight that, because he had been
unable to remember many details of the crimes during his
interrogation, the police had assisted Gray in crafting a
confession. Detective Peterman acknowledged that he informed
Gray that Dandridge was also in custody at police headquarters,
but Detective Peterman asserted that, after being made aware of
his rights, Gray volunteered to tell his side of the story and
did so without learning the details of Dandridge’s confession.
39
written statement based upon the statement prepared by
Dandridge. In short, a plausibly credible witness offered sworn
facts more than trivially corroborative of Gray’s allegations
supporting a claim of ineffective assistance.
As the majority opinion recounts, the Warden filed a motion
to dismiss Gray’s habeas petition, specifically arguing that an
evidentiary hearing was neither necessary nor permitted. In
support of his motion to dismiss, the Warden submitted the
affidavit of Gray’s trial counsel, Jeffrey L. Everhart and
Theodore D. Bruns. The attorneys asserted that Gray had never
told them that he had been fed details of the crime. Further,
the attorneys explained that they had interviewed each police
officer who questioned Gray on January 7, 2006, including
Detective Peterman, and each officer confirmed that Gray had
confessed voluntarily and without acquiring information from
Dandridge’s confession. The attorneys also spoke of Gray’s
insistence that PCP was not to blame for his criminal actions
and that he had known what he was doing. The attorneys,
however, did not directly address Gray’s assertion that his
heavy drug use during the day in question left him unable to
remember many of the crimes’ details during his interrogation.
On March 4, 2011, the Supreme Court of Virginia granted the
Warden’s motion to dismiss the relevant ineffective assistance
of counsel claim without affording Gray an evidentiary hearing.
40
Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275 (Va.
2011). In ticking through Gray’s several habeas claims, the
Virginia Supreme Court explained that:
The record, including the affidavit of counsel,
demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the
murders and that “PCP could not be to blame.”
Furthermore, counsel spoke to every officer involved
in petitioner’s arrest, including Detective Peterman,
and determined that petitioner was not provided any
details from Dandridge’s statement before or during
his statement to the police. The affidavit of counsel
also demonstrates that petitioner never informed
counsel that Detective Peterman had “fed” him the
details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find
any evidence that would have supported a motion to
suppress petitioner’s statements to police.
. . .
The record, including the trial transcript,
petitioner’s statement to the police, and the
affidavit of counsel, demonstrates that petitioner
understood his constitutional rights and voluntarily
agreed to speak to the police about the murders and
that counsel looked for but could not find any
evidence that would have supported a motion to
suppress petitioner’s statement to the police.
Id. at 283-84.
After the Supreme Court of Virginia dismissed his habeas
petition, Gray sought federal habeas relief. He based his
federal challenge in part on the Supreme Court of Virginia’s
decision to dismiss his ineffective assistance of counsel claim
without affording him an evidentiary hearing and the opportunity
to develop a factual record. Gray asserted that, because the
41
Supreme Court of Virginia presumably ignored the Knight
affidavit and resolved related factual disputes regarding his
ineffective assistance of counsel claim without the benefit of
an evidentiary hearing, the dismissal amounted to an
unreasonable determination of the facts under 28 U.S.C. §
2254(d)(2) of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”).
While it is a close question, I am constrained to agree
with Gray. As the district court aptly observed, trial
counsel’s affidavit and Detective Peterman’s trial testimony,
“differed sharply” from Knight’s affidavit and the details
provided in Gray’s verified petition. Gray v. Pearson, No.
1:11-cv-630, 2012 WL 1481506, at *11 (E.D. Va. Apr. 27, 2012).
Despite this sharply conflicting evidence, the Supreme Court of
Virginia effectively adopted the affidavit of Gray’s trial
counsel as fact absent any apparent analysis and without first
providing Gray “any opportunity . . . to develop a factual
record through discovery with compulsory process or to test
disputed issues of fact through the type of adversarial process
historically thought essential to the truth-finding function of
a court.” Id.
The district court and the majority correctly recognize
that AEDPA’s § 2254(d) restriction creates a “highly deferential
standard for evaluating state-court rulings.” Cullen v.
42
Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398 (2011).
However, the Supreme Court has implied that a state court’s
fact-finding may be unreasonable when the court “had before it,
and apparently ignored,” evidence supporting a petitioner’s
claim. See Miller-El v. Cockrell, 537 U.S. 322, 346 (2003).
While the majority is content to assume that the Supreme Court
of Virginia appropriately evaluated the Knight affidavit, which
directly conflicted with the trial testimony of Detective
Peterman and the affidavit of Gray’s trial counsel, there is
nothing in the opinion to suggest that the Supreme Court of
Virginia considered Knight’s affidavit, much less engaged in the
difficult process of weighing the credibility of the affiants on
a conflicting record.
The majority notes that it is troubled by the Supreme Court
of Virginia’s observable preference for trial counsel’s
affidavit as compared to the Court’s treatment of Knight’s and
suggests that, despite not mentioning the Knight affidavit, the
Supreme Court of Virginia assuredly took the affidavit into
consideration because it ruled on the Warden’s motion to strike
the affidavit. The Court’s ruling on the Warden’s motion to
strike the affidavit, however, comes in a singular and
unsupported sentence at the conclusion of its opinion dismissing
Gray’s ineffective assistance of counsel claim, and the motion
to strike the Knight affidavit was incorporated into a broader
43
motion to strike that concerned several of the affidavits
proffered by Gray. While such context may be sufficient in
certain circumstances to support the resolution of disputed
issues of fact by a state court, based on conflicting sworn
affidavits, without an evidentiary hearing, the facts presented
in the Knight affidavit stood in direct conflict with those
offered by trial counsel and the affidavit was at the heart of
Gray’s ineffective assistance of counsel claim. Accordingly,
while I believe that “[a] rational fact-finder might discount
[the affidavit] or, conceivably, find it incredible, . . . no
rational fact-finder would simply ignore” the affidavit or fail
to address it entirely. See Taylor v. Maddox, 366 F.3d 992,
1006 (9th Cir. 2004).
Because the Supreme Court of Virginia—in resolving disputed
issues of fact, based on conflicting and partially unaddressed
sworn affidavits, without an evidentiary hearing—made an
unreasonable determination of the facts under 28 U.S.C. §
2254(d)(2), I would vacate the judgment of the district court as
to Gray’s ineffective assistance of counsel claim and remand for
an evidentiary hearing and the development of a full factual
record.
Of course, my difference with the majority does not
remotely reflect any view of trial counsel. With a few
exceptions spread in reported cases, defense counsel in capital
44
cases perform conscientiously and in a manner entirely faithful
to the noble ideals of the legal profession. Despite this
truism, however, such counsel are not at all surprised or
bothered by the fact that, given the stakes, their judgments and
their trial performances will likely come under attack by fellow
counsel in subsequent post-conviction proceedings. This may
entail, as it should have in this case, subjecting such
conscientious counsel to the unpleasantness of cross-
examination. But our adversary system in cases involving the
highest of stakes—life or death—should admit of nothing less.
45