Opinion
Case No. 02-254, POST CONVICTION PROCEEDING
April 15, 2003
Robert Edward Lee, Jr., Esquire Virginia Capital Representation Charlottesville, Virginia, Counsel for Plaintiff's.
Katherine Pharis Baldwin, Esquire Office of the Attorney General Richmond, Virginia, Counsel for Defendant's.
MEMORANDUM ORDER
This matter is before the Court upon Petitioner Mark Wesley Bailey's ("Bailey") Petition for Writ of Habeas Corpus attacking the validity of his conviction pursuant to 28 U.S.C. § 2254 and the Respondent's Rule 5 Answer and Motion to Dismiss the petition. Bailey was convicted of capital murder in connection with the murder of his wife and his two-year-old son. The jury concluded that Bailey should be sentenced to death because of the vileness of his crime. The issue before the Court is whether Bailey's counsel rendered ineffective assistance of counsel, in violation of the Sixth Amendment, in connection with asserting mental health issues in mitigation of punishment, failing to object to certain jury instructions, not conducting voir dire, not properly challenging Bailey's confession, and not asserting certain issues on appeal. While Bailey's petition presents several issues, the Court concludes that the issue of ineffective assistance of counsel in connection with presentation of mental health evidence as a mitigating factor in the penalty phase. of his trial underlies his claim. The essence of Bailey's claim is that his mental health expert misdiagnosed Bailey as suffering from personality disorder when his habeas counsel contend that Bailey suffers from bipolar disorder. Bailey asserts that his trial counsel rendered ineffective assistance because they did not ensure that Bailey's mental health diagnosis was correct. Because Bailey's counsel properly secured the assistance of a court-appointed competent mental health expert who assisted the defense by testifying during the penalty phase about mitigating circumstances concerning Bailey's mental state, Bailey's trial counsel's performance was not outside the range of professionally competent assistance. Bailey cannot demonstrate any prejudice from his trial counsel's performance, and therefore his claim must be dismissed. The Sixth Amendment is not implicated in a claim that the petitioner's mental health expert misdiagnosed the petitioner's mental condition. Bailey's ten remaining claims are considered in this opinion and denied because the claims are without merit. Accordingly, Respondent's Motion to Dismiss is granted and Bailey's petition is dismissed.
Petitioner also filed a Motion for Funds for a Psychiatrist, which the Court will briefly address at the end of its Memorandum Opinion.
I. BACKGROUND
Petitioner was convicted on July 23, 1999, in the Circuit Court for the City of Hampton, of capital murder and first-degree murder, arising from the shooting deaths of his wife and two-year-old son. A brief recitation of the facts is necessary. Bailey married his cousin, Katherine, on December 23, 1993. Bailey and Katherine had known each other most of their lives and had been romantically involved for over a year when they married. In March 1996, Katherine gave birth to their son, Nathan. After the birth of their son, the couple became emotionally estranged, yet they continued to live together in the same house. In the middle of 1998, Bailey began telling his co-workers fabricated stories about his wife receiving threatening phone calls and notes. In August 1998, Bailey borrowed a .22-caliber pistol from a friend, and Bailey purchased ammunition for the gun.
On September 10, 1998, Bailey awoke about 4:30 a.m., went to the bedroom where his wife was sleeping, and shot her three times in the head with the borrowed pistol. Bailey then heard Nathan awaking in the next bedroom. He went to his son's bedroom and shot the child twice in the head as the child was climbing out of bed. Bailey washed blood off his face and dressed for work. He cut the bathroom window screen with a razor knife and cut the outside telephone line in order to give the appearance that a break-in had occurred. Bailey then left for work, taking the pistol and razor knife with him.Bailey v. Commonwealth, 529 S.E.2d 570, 573 (Va. 2000). Bailey was sentenced to death on July 24, 1999. He appealed his conviction and the Virginia Supreme Court affirmed the judgment on April 21, 2000. Id. Petitioner requested a rehearing, which was denied on June 9, 2000. On September 6, 2000, Bailey filed a petition for writ of certiorari with the United States Supreme Court, which was denied on November 13, 2000. Thereafter, on January 16, 2001, Bailey filed an original petition for a writ of habeas corpus in the Supreme Court of Virginia, pursuant to Virginia Code § 8.01-654(C)(1). On April 25, 2001, the Respondent moved to dismiss each of Bailey's claims and opposed Bailey's request for an evidentiary hearing. The Virginia Supreme Court dismissed Bailey's petition on September 27, 2001. See Order Dismissing Petition, Bailey v. Warden, No. 010121 ("Order Dismissing State Habeas Petition").
Bailey filed a timely petition for rehearing on October 29, 2001, which was denied by the Virginia Supreme Court on January 11, 2002. Thereafter, Bailey's execution was set for February 28, 2002, by the Circuit Court for the City of Hampton. This Court, however, issued an order staying Bailey's execution on February 22, 2002.
On August 30, 2002, Bailey filed an original petition for a writ of habeas corpus in this Court. However, on September 9, 2002, this Court ordered Bailey to file a substituted Initial Petition, which included the following sections: Statement of Issucs, Table of Contents, Index, and a Table of Authority. Bailey filed the substituted petition on September 30, 2002. Respondent moved to dismiss each of Bailey's claims on September 30, 2002. On October 21, 2002, Bailey replied to Respondent's Motion to Dismiss. The Court dismisses Bailey's petition for the reasons that follow.
II. PETITIONER'S CLAIMS
In the instant federal habeas corpus petition, Bailey asserts the following claims:
I. Trial Counsel Failed to Ensure that Jurors Were Accurately Informed about Mitigating Factors When Determining the Appropriate Sentence
II. Bailey Was Not Afforded Appropriate Expert Assistance
III. Trial Counsel Failed to Provide Effective Assistance of Counsel by Presenting Bailey in an Unexplained Medicated Emotionless Stupor During Trial
IV. Trial Counsel Failed to Ensure that Jurors Were Adequately Instructed at the Guilt Phase of the Trial
V. Trial Counsel Failed to Ensure that Jurors Were Instructed Properly at the Sentencing Phase of the Trial
VI. Trial Counsel Unreasonably Failed to Exercise Bailey's Right to Voir Dire in Order to Guarantee Bailey a Fair and Impartial Jury
VII. Trial Counsel Unreasonably Failed to Properly Challenge the Admissibility of Bailey's Incriminating Statements
VIII. Counsel Rendered Ineffective Assistance on Appeal
IX. The Death Penalty is Cruel and Unusual in Virginia
X. Virginia's Capital Sentencing Scheme Fails to Channel the Sentencer's Discretion with Clear and Objective Standards
XI. The Failure to Provide Defense Counsel Access to Any Investigative Resources Deprived Bailey of His Right to Assistance of Counsel and to a Fundamentally Fair Trial
XII. Bailey Was Deprived of His Sixth and Fourteenth Amendment Rights to a Proper Jury Determination of His Sentence
III. EXHAUSTION OF STATE REMEDIES
In reviewing a petition under 28 U.S.C. § 2254, a federal court must determine whether the petitioner has exhausted his claims before the appropriate state courts and whether those claims are barred by a procedural default. Prior to filing a petition for federal habeas review, a petitioner must exhaust his state remedies by fairly presenting the substance of the claim to the state's highest court. Duncan v. Henry, 513 U.S. 364, 365 (1995).A. Failure to Exhaust
As a general rule, a petitioner must first exhaust his claims in state court because exhaustion is a matter of comity to the state courts; failure to exhaust requires dismissal from federal court so that the petitioner may present his claims to the state courts. See Cranberry v. Greer, 481 U.S. 129, 134 (1987); Rose v. Lundy, 455 U.S. 509, 515-19 (1982); 28 U.S.C. § 2254 (b).
It is generally true that when a federal habeas petition contains unexhausted claims, the federal court will dismiss the petition without prejudice to allow for further state court review. See Rose, 455 U.S. at 522. However, if the state laws would bar further state court review, then federal habeas review of the unexhausted claim is procedurally barred. See Bassette v. Thompson, 915 F.2d 932, 935-37 (4th Cir. 1990). Virginia considers a claim to be procedurally barred or defaulted if the petitioner could have raised the claim on direct appeal, but he failed to do so. See Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974). In addition, pursuant to Virginia Code § 8.01-654(B)(2), subsequent state habeas review is not available to a petitioner who alleges facts that were known to him at the time of filing any previous petition. See George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Barnes v. Thompson, 58 F.3d 971, 974-75 (4th Cir. 1995).
Furthermore, according to 28 U.S.C. § 2254, if a claim is presented to the state's highest court but is not addressed, the claim is still exhausted. See Smith v. Digmon, 434 U.S. 332, 333 (1978). Thereafter, federal review of an exhausted yet unaddressed claim is de novo. See Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir. 1999), aff'd, 528 U.S. 225 (2000).
B. Procedural Default
A state court's finding of procedural default is entitled to a presumption of correctness by the reviewing federal court. See 28 U.S.C. § 2254 (d); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988). However, two foundational requirements must first be met. First, the state court must explicitly rely on the procedural ground to deny petitioner relief. See Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991); Harris v. Reed, 489 U.S. 255, 259 (1989). Second, the state procedural rule furnished to default petitioner's claim must be an independent and adequate state ground for denying relief. See Harris, 489 U.S. at 260; Ford v. Georgia, 498 U.S. 411, 423-24 (1991). When these two requirements have been met, federal courts may not review the barred claims, absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris, 489 U.S. at 260.
C. Petitioner's Procedurally Defaulted Claims
The Virginia Supreme Court ruled that Bailey's following claims were all procedurally defaulted: II, IV, IX, and XII. Therefore, these claims cannot be addressed in Bailey's federal petition for a writ of habeas corpus. In Claim II, Bailey alleges that he was not afforded appropriate expert assistance. In Claim IV, Bailey asserts that his trial counsel failed to ensure that the jurors were adequately instructed at the guilt phase, and in Claim IX, Bailey argues that the death penalty constitutes cruel and unusual punishment in Virginia. Lastly, in Claim XII, Bailey argues that he was deprived of notice of the aggravating elements in his case; specifically, that certain terms in the jury instructions, particularly elements of aggravating factors upon which the State sought the death penalty, were not defined, i.e., "outrageously or wantonly vile, horrible of inhuman [sic] and depravity of mind." Bailey argues that "[w]ithout definition [of those terms], jurors could not meaningfully determine whether the evidence supported these findings necessary to make Bailey eligible for a death sentence." (Pet. at 118-20)
1. Claim II
Claim II was raised for the first time in Bailey's state habeas petition. Accordingly, the Virginia Supreme Court held that the claim was procedurally defaulted under the rule propounded by Slayton, 205 S.E.2d 680. Specifically, the Court held that "[t]his claim [II] could have been raised at trial and on direct appeal [but was not] and thus is not cognizable in this habeas proceeding." Order Dismissing State Habeas Petition at 2.
2. Claim IV
Similarly, the Court held that Claim IV was "procedurally barred because it is a matter that could have been raised at trial and on appeal and thus is not cognizable in this habeas petition." Id. at. 4.
3. Claim IX
Likewise, in Bailey's state habeas case, the Supreme Court of Virginia dismissed the portion of Bailey's claim, wherein he argued that Virginia's Death Penalty is unconstitutional, stating that the claim was expressly defaulted under the rule in Slayton. Id. at 8.
4. Claim XII
Lastly, after having reviewed the record, this Court determines that, to the extent that Bailey is not re-alleging arguments asserted in Claim X, Claim XII has never been presented to a Virginia state court. Title 28 U.S.C. § 2254 (b) expressly prohibits granting habeas corpus relief to a petitioner "unless it appears that the applicant has exhausted the remedies available in the courts of the State." Sections 2254(b)-(c) provide that exhaustion may be accomplished by presenting the claim on direct appeal or in post-conviction proceedings, neither of which Bailey did with the instant claim.
According to the Supreme Court, the exhaustion requirement only applies to "remedies still available at the time of the federal petition." Gray v. Netherland, 518 U.S. 152, 161 (1996) (quoting Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982)). Therefore, the exhaustion requirement is satisfied "if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law." Gray, 528 U.S. at 161 (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)). Under Virginia law, "[n]o writ [of habeas corpus ad subjiciendum] shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition." Gray, 518 U.S. at 162 (quoting Va. Code § 8.01-654(B)(2)). Because petitioner knew of the grounds of the instant claim when he filed his first habeas petition, § 8.01-654(B) (2) of the Virginia Code precludes review of petitioner's claim in any future state habeas proceedings. "However, the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default." Gray, 518 U.S. at 162. Petitioner makes no attempt to demonstrate cause or prejudice for his default in state habeas proceedings. Therefore, Petitioner's final claim is not cognizable in this federal suit for the writ of habeas corpus. Accordingly, Claim XII is also procedurally defaulted.
As previously mentioned, a state court's determination that claims are procedurally defaulted is entitled to a presumption of correctness, see 28 U.S.C. § 2254 (d); Clanton, 845 F.2d at 1241, provided that two foundational requirements are met. Both requirements are met in this case. Additionally, the claims will also be barred from federal habeas review, absent a showing of cause and prejudice or a fundamental miscarriage of justice.
The first foundational requirement is met because the Virginia Supreme Court relied explicitly on a procedural ground to deny Bailey's relief for each defaulted claim; particularly, the rule in Slayton, 205 S.E.2d 680. According to Slayton, a petitioner may not raise a claim for the first time in his habeas petition, if the claim could have been raised either at trial or on direct appeal. 205 S.E.2d at 682 (holding that a "prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction").
The second foundational requirement is likewise met, because the procedural rule set out in Slayton is an independent and adequate state ground for denying relief, as required by Harris, 489 U.S. at 259. The Supreme Court held that a rule is adequate if it is regularly or consistently applied by the state court. Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Additionally, a rule is independent if it does not "depend on a federal constitutional ruling." Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The Fourth Circuit has "repeatedly recognized that `the procedural default rule set forth in Slayton constitutes an adequate and independent state law ground for decision." Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998). Therefore, "absent cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default, a federal habeas court may not review a claim when a state court has declined to consider the claim's merits on the basis of an adequate and independent state procedural rule." Id.
Cause is usually demonstrated by showing a denial of effective assistance of counsel, a factor external to the defense that hindered compliance with a state procedural rule, or a novel claim. See Murray v. Carrier, 477 U.S. 478 (1986); Coleman v. Thompson, 501 U.S. 722 (1991); Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990), cert. denied, 499 U.S. 913 (1991). Bailey fails to demonstrate cause.
Prejudice exists only where the petitioner demonstrates that the alleged attorney-error worked to his actual and substantial disadvantage, infecting the entire trial with an error of a constitutional magnitude. Carrier, 477 U.S. 492. Neither Claim II, IV, IX, nor XII demonstrates prejudice to Bailey. Therefore, none of these claims may be considered as grounds for federal habeas relief. However, all of Bailey's remaining claims are exhausted within the meaning of § 2254(b), either because the claims were presented to the Virginia Supreme Court on direct appeal or in state habeas petitions. Therefore, this Court considers each of Bailey's remaining claims on its merits.
IV. STANDARD OF REVIEW
When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudications are contrary to, or are an unreasonable application of, clearly established federal law, or are based on an unreasonable determination of the facts. 28 U.S.C. § 2254 (d). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of" federal law is based on an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
A state court determination meets the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Moreover, this standard of reasonableness is an objective one. Id. at 410.
V. MERITS
A. Ineffective Assistance of Counsel — Claims I, III, V, VI, VII and VIII
In considering an ineffective assistance of counsel claim, a court must determine (1) "whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance," Strickland v. Washington, 466 U.S. 668, 690 (1984) (defining ineffective assistance of counsel as falling below an objective standard of reasonableness; specifying a strong presumption of competence and deference to attorney judgment), and (2) whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "The petitioner must show both deficient performance and prejudice; the two are separate and distinct elements of an ineffective assistance claim." Spencer v. Murray, 18 F.3d 229, 232-33 (4th Cir. 1994). Moreover, "[i]f there is no prejudice, a court need not review the reasonableness of counsel's performance." Quesinberry v. Taylor, 162 F.3d 273, 278 (4th Cir. 1998). Finally, "[j]udicial scrutiny of counsel's performance must be highly deferential," Strickland, 466 U.S. at 689, and the Court must "presume that challenged acts are likely the result of sound trial strategy." Spencer, 18 F.3d at 233.
3. Claim I Trial Counsel Failed to Ensure that Jurors Were Accurately Informed about Mitigating Factors When Determining the Appropriate Sontence
The Virginia Supreme Court rejected Claim I on the merits, stating that "Bailey's conclusory statements that trial counsel should have presented Dr. Nelson [Petitioner's expert] with `adequate information,' without more, do not present a prima facie case that his trial counsel's acts failed to meet the `performance' prong of the test set out in Strickland v. Washington, 466 U.S. 668, 690 (1984)." Order Dismissing State Habeas Petition at 1-2. Because the Virginia Supreme Court has previously considered and denied this claim on the merits, this Court is limited to determining whether the Virginia Supreme Court reasonably rejected Bailey's claim. See Bell v. Cone, 535 U.S. 685 (2002).
Under Strickland, a petitioner must demonstrate that his attorney's performance "fell below an objective standard of reasonableness." 466 U.S. at 688. As a reviewing court, this Court is required to defer to counsel's tactical decisions and to refrain from second-guessing counsel's strategy simply because the strategy failed. Id. at 689. Additionally, reviewing courts work under a "strong presumption" that the trial counsel's performance "falls within the wide range of reasonable professional assistance." Id. Moreover, even if Bailey could demonstrate that his counsel's performance was objectively unreasonable, he would have to show that ho was prejudiced by his counsel's errors and that there is "a reasonable probability that, but for counsel's . . . errors, the result of the proceeding would have been different." Id. at 694.
Bailey fails to demonstrate a claim of ineffective assistance of counsel on Claim I, according to the two-part "performance" and "prejudice" Strickland test. Bailey asserts that his trial counsel did not provide his expert, Dr. Evan Nelson, with sufficient information to allow a diagnosis of bipolar disease to be presented to the jury as a mitigating factor during the sentencing phase.
Bailey contends that Dr. Nelson failed to gather pertinent family medical history of mental illness from family members. The record reflects that Dr. Nelson interviewed several of Bailey's family members, including his twin brother Michael and family members Bonnie and Myron Bailey. (JA 907-908, 923.) Dr. Nelson's report found at Petitioner's Appendix at 1-17. Bailey contends that Dr. Nelson's interviews were not "thorough interviews" concerning pertinent medical history that several family members suffered mental illness. The record seems to belie the contention because Dr. Nelson referred to Bailey's twin brother's history of bipolar disorder in his testimony explaining why he ruled out a bipolar disorder of Bailey. See (JA 924, 927, 931-932.)
Bailey' petition notes the difficulty inherent in medical diagnosis, in that antisocial personality disorder is known to have very similar symptoms to bipolar disorder. (Pet. at 43.) Dr. Nelson considered both bipolar disorder and antisocial personality disorder and concluded that Bailey suffered from antisocial personality disorder. This statement is important for two reasons. First, it demonstrates that Dr. Nelson was operating within the applicable standard of care in conducting his evaluation of Bailey. Bailey's petition acknowledges that "all too often the diagnosis of bipolar disorder is missed when borderline features are also present." (Pet. at 43.) The record demonstrates that Dr. Nelson conducted a professionally appropriate evaluation of Bailey. Dr. Nelson spent approximately 7 or 8 hours interviewing and testing Bailey, and approximately 30 more hours reviewing Bailey's school, Navy, and other records and interviewing Bailey's friends and relatives. (JA 907-908, 923.) On this record, it is arguable that Dr. Nelson's conduct did not fall below the applicable standard of care for a psychologist. Nonetheless, without making a judgment about medical malpractice, Bailey's claim, in essence, is "ineffective assistance of a mental health care expert," and this type of claim does not implicate the Sixth Amendment right to effective assistance of counsel, nor does it state a claim for federal habeas relief. See Waye v. Murray, 884 F.2d 765 (4th Cir.), cert. denied, 192 U.S. 936 (2989); Wilson v. Greene, 155 F.3d 396, 401-02 (4th Cir. 1998).
Second, the fact that trial counsel sought out a mental health evaluation, provided Bailey's pertinent military and medical records, and presented mental health evidence pertinent to statutory mitigating factors in the penalty phase proves that Bailey's trial counsel rendered appropriate assistance in Bailey's defense, well within the range of competent counsel meeting Sixth Amendment standards. Accordingly, Bailey fails to demonstrate that his counsel's actions were objectively unreasonable. Bailey's claim is premised upon the very evidence and records provided to Dr. Nelson prior to trial, and Bailey's habeas counsel have taken the record and asserted a different diagnosis than that offered by Dr. Nelson, without offering any new evidence that was not known to his trial counsel or to Dr. Nelson. Bailey further argues that his counsel should have sought the appointment of a psychiatrist to perform a battery of evaluation tests. However, this claim is flawed because the Fourth Circuit does not require defense counsel to "shop around" for more favorable defense diagnoses. See Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.), cert. denied, 506 U.S. 958 (1992); Pruett v. Thompson, 996 F.2d 1560, 1573 (4th Cir.), cert. denied, 510 U.S. 984 (1993). Furthermore, defense counsel has no affirmative duty to seek a second psychiatric opinion. See Roach v. Martin, 757 F.2d 1463 (4th Cir.), cert. denied, 474 U.S. 865 (1985).
Finally, Bailey contends that the Supreme Court of Virginia unreasonably interpreted the United States Supreme Court opinion in Ake in rejecting Bailey's claim that only a psychiatrist could properly conduct Bailey's mental health evaluation and offer pertinent testimony. Bailey's argument fails because Ake does not require the appointment of a psychiatrist exclusively and Ake arguably does not apply to a case where the Commonwealth did not present expert testimony on the issue of future dangerousness in the penalty phase. See Ake, 470 U.S. at 82-83; Ramdass v. Angelone, 187 F.3d 396, 409 (4th Cir. 1999), aff'd, 530 U.S. 156 (2000).
In sum, the Court finds in this case that trial counsel's actions, at a minimum, demonstrate that trial counsel were cognizant of the importance of mental health issues in determining culpability and mitigation in capital cases. Trial counsel's efforts in successfully filing a motion for the appointment of a mental health expert, securing pertinent military and medical records, and securing a competent mental health professional fall within the objective standard of reasonableness and performance under Strickland.
As a result, this Court must deny habeas relief to Bailey on Claim I, because the Virginia Supreme Court's rejection of it was not unreasonable or contrary to clearly established federal law. Because Bailey's claim does not satisfy the performance prong of Strickland, the Court need not address whether counsel's actions caused prejudice to Bailey. Accordingly, Claim I shall be dismissed.
2. Claim III — Trial Counsel Failed to Provide Effective Assistance of Counsel by Presenting Bailey in an Unexplained Medicated Emotionless Stupor During Trial
The Virginia Supreme Court addressed this claim on the merits in Bailey's state habeas petition, and held that Bailey's "trial counsel's tactical decision that Bailey refrain from any display of emotion or continue on a course of medication consistent with that decision did not constitute ineffective assistance of counsel under the `performance' prong of Strickland." Order Dismissing State Habeas Petition at 4. Accordingly, this Court may not grant relief on this claim unless the state court's adjudication was contrary to, or an unreasonable application of, clearly established federal law. See Williams, 529 U.S. at 412-13.
As the Supreme Court stated in Strickland, a reviewing Court will not undermine trial counsel's tactics simply because the tactics failed to produce the desired results. 466 U.S. at 689. This Court finds that the decision by trial counsel instructing Bailey to refrain from showing any emotion and to continue taking his medication during the trial does not constitute ineffective assistance of counsel as contemplated by Strickland. As a result, this Court must deny habeas relief to Bailey on Claim III, because the Virginia Supreme Court's rejection of it was not unreasonable, or contrary to clearly established federal law.
3. Claim V — Trial Counsel Failed to Ensure that Jurors Were Properly Instructed at the Sentencing Phase of Trial
Bailey contends that his counsel rendered ineffective assistance of counsel by failing to object to Jury Instructions 1 and 8, arguing that the instructions allowed the jury to impose the death penalty without considering mitigating evidence. Because this argument has been rejected by the Supreme Court of the United States in Buchanan v. Angelone, 522 U.S. 269 (1998), the decision of the Supreme Court of Virginia to deny this claim was not contrary to or an unreasonable application of federal law.
The Virginia Supreme Court, in its Order dismissing Bailey's state habeas petition, dismissed his claim that trial counsel's performance was deficient by not objecting to Jury Instructions 1 and 8. As this claim was dismissed on the merits, this Court's review is limited to a determination of whether the Supreme Court of Virginia reasonably rejected the claim. See Bell, 535 U.S. at 694-95.
The Supreme Court of Virginia held as follows:
These claims fail to satisfy the "performance" prong of Strickland. Jury Instruction 1, if the jurors unanimously find the aggravating factor of vileness, they may impose the death penalty, has previously been held constitutional, Buchanan v. Angelone, 522 U.S. 269, 276-77 (1998), and therefore, trial counsel's failure to object to the instruction on this basis was not outside the acceptable range of professional competence.
Jury instruction 8 addressed the aggravating and mitigating factors for consideration in determining the sentence to be imposed. The jury was adequately informed of the elements of the predicate aggravating factor in Jury Instruction 1. Therefore, the instruction complained of did not "impermissibly broaden" the vileness factor which was a prerequisite for imposition of the death penalty and trial counsel's failure to object to the instruction was not deficient.
Order Dismissing State Habeas Petition at 5-6.
The Supreme Court of Virginia's decision to deny Claim V was not unreasonable or contrary to federal law in light of Buchanan because the United States Supreme Court recognized that Jury Instruction 1 required the jury to consider mitigating evidence before imposing sentence. 522 U.S. at 273 n. 1, 277. See also JA 1024G. Trial counsel's failure to object to the jury instructions was not outside the range of professionally competent assistance because the proposed objection is without merit.
Bailey further contends that trial counsel's failure to object to the verdict form was deficient performance and prejudicial. Bailey's claims about the jury verdict form have been previously rejected because the proffered jury verdict form is not completed by the jury until they consider Jury Instruction 8, which requires the jury to determine whether the Commonwealth has shown the predicate aggravating factor of vileness by proof beyond a reasonable doubt. Moreover, as correctly stated by the Supereme Court of Virginia, the United States Supreme Court has previously rejected Bailey's attack on the verdict, form on grounds that the verdict form did not properly instruct the jury it had the option of recommending a life sentence even if it found an aggravating factor. See Weeks v. Angelone, 528 U.S. 225, 235 n. 4 (2000).
Bailey's final Claim V contention is that the jury verdict form did not contain a line for the imposition of a fine when fixing a sentence of life in prison without parole. However, as this rule of law was rendered by the Supreme Court of Virginia after Bailey's trial, Bailey's counsel cannot be faulted for failing to assert this argument at his trial. The Supreme Court of Virginia's decision to deny Claim V on this ground was not unreasonable or contrary to federal law in light of the United States Supreme Court decision in Weeks and Buchanan.
4. Claim VI — Trial Counsel Unreasonably Failed to Exercise Bailey's Right to Voir Dire in Order to Guarantee Bailey a Fair and Impartial Jury
The Virginia Supreme Court, in its Order dismissing Bailey's state habeas petition, stated that this claim was "without merit," and that "[n]othing in the record supports a conclusion that the failure of counsel to personally conduct voir dire or exercise for-cause or preemptory [sic] strikes constituted ineffective representation of petitioner. Therefore the `performance' prong of Strickland is not satisfied." Order Dismissing State Habeas Petition at 6. Because this claim has been addressed by the state court, this Court is limited to determining whether the state Court reasonably rejected Bailey's claim. See 28 U.S.C. § 2254 (d); Williams, 529 U.S. at 412-13.
Bailey's trial counsel and the prosecution both agreed to allow the judge to conduct the jury questioning. The judge engaged in an in-depth series of questioning of three prospective jurors at a time. Moreover, the judge asked questions broader than those required by law. See Va. Code § 8.01-358; Rule 3A:14 of the Rules of the Supreme Court of Virginia; JA 291-306. Upon review of the trial judge's questioning, the Court concludes that the judge-conducted voir dire was sufficient to allow Bailey's counsel an opportunity to decide whether or not to move to strike the venire persons for cause or to exercise a peremptory strike. The counsel's tactical decision to allow the trial judge to question the jury is one that will not be second-guessed by this Court; nor does counsel's decision fall below the professionally reasonable standard for effective assistance of counsel, as espoused in Strickland. After reviewing portions of the transcript from the trial judge's questioning of the venire, the Court concludes that Bailey's counsel rendered effective assistance of counsel in voir dire, and, therefore, Bailey's claim fails to meet the performance or prejudice prongs of the Strickland test. Accordingly, this Court holds that the Virginia Supreme Court in decision to deny relief based on this claim was not contrary to, or an unreasonable application of, clearly established federal law, and therefore Claim VI shall be dismissed.
5. Claim VII — Trial Counsel Failed to Properly Challenge the Admissibility of Bailey's Incriminating Statements
In Bailey's federal habeas petition, he maintains, as he did in his state habeas proceeding, that his trial counsel failed to challenge the admissibility of his statements by: (1) failing to present all the facts in support of his arguments; and (2) failing to adequately support those arguments with relevant court decisions. (Pet. at 82.)
The Virginia Supreme Court dismissed this claim in Bailey's state habeas petition, holding the following:
[P]etitioner now asserts that he was not allowed to retrieve his jacket or keys, that he was never told he could leave and was told to remain in the interview room, and that police escorted him to the restroom. These assertions are not sufficient to demonstrate a reasonable probability that the finding that petitioner was not in custody when he confessed to the crimes would have been different, as required by the `prejudice' prong of Strickland. Similarly, — none of the cases which petitioner alleges his trial counsel should have relied upon to support his position that his confession was coerced is determinative and many can be distinguished. In the absence of clearly controlling authority, trial counsel's choice of case support is a matter of trial strategy and the failure to include any specific case or cases can not be considered as ineffective assistance of counsel under the `performance' prong of Strickland.
Order Dismissing State Habeas Petition at 7.
Moreover, on direct appeal, the Virginia Supreme Court found that "Bailey clearly was not in custody as is contemplated by Miranda at the time he made his initial confession." Bailey, 529 S.E.2d at 583. According to 28 U.S.C. § 2254 (e)(1), the state court's factual finding "shall be presumed to be correct" by this Court. Therefore, this Court is limited to determining whether the state Court reasonably rejected this claim. See 28 U.S.C. § 2254 (d); Williams, 529 U.S. at 412-13.
Upon a review of the facts surrounding Bailey's confession, the Court holds that the Virginia Supreme Court's decision to deny relief based upon this claim was not unreasonable because Bailey was not "in custody" at the time he made his statement to the police. The record makes clear that Bailey voluntarily rode from his home to the police station in the front seat of the police car, and after his arrival, he walked freely about the building, even stepping outside for a cigarette. Moreover, during the questioning, Bailey never asked for the questioning to cease. In light of those facts, it is quite reasonable for the Virginia Supreme Court to deny Bailey's claims for relief on this argument. The failure by Bailey's counsel to supply more facts surrounding the confession to the trial court does not satisfy either the "performance" or "prejudice" requirement that Strickland requires.
Additionally, Bailey's claim that his counsel did not cite the appropriate case law was also dismissed by the Virginia Supreme Court, when it dismissed Bailey's state habeas petition. The Court held that "[i]n the absence of clearly controlling authority, trial counsel's choice of case support is a matter of trial strategy and the failure to include any specific case or cases can not be considered as ineffective assistance of counsel under the `performance' prong of Strickland." Order Dismissing State Habeas Petition at 7. This Court may only determine the reasonableness of the state court's decision.
The Court holds that, in light of the facts surrounding Bailey's confession, the Virginia Supreme Court's decision was reasonable, because none of the cases that Bailey argues should have been presented by his trial counsel are on point with the facts at issue here. Moreover, as the Supreme Court stated in Strickland, a reviewing Court will not undermine trial counsel's tactics simply because the tactics failed to produce the desired results. 466 U.S. at 689. Accordingly, this Court holds that the Virginia Supreme Court's decision to deny relief based on this claim was not contrary to, or an unreasonable application of, clearly established federal law. Therefore Claim VII shall be dismissed.
6. Claim VIII — Counsel Rendered Ineffective Assistance on Appeal
The substance of Bailey's argument is that his appellate counsel failed to argue the issue of Bailey's custody for purposes of interrogation under Miranda v. Arizona, 384 U.S. 436 (1966). The Virginia Supreme Court addressed this claim on the merits in Bailey's state habeas petition and held that "[t]hese allegations fail to satisfy either the `performance' or `prejudice' prong of Strickland." Order Dismissing State Habeas Petition at 7. Accordingly, this Court is limited to a determination of whether the state court's adjudication was reasonable. See Williams, 529 U.S. at 412-13.
This Court holds that Bailey was not prejudiced by the fact that his appellate counsel failed to argue the issue of Bailey's alleged custody while he was at the police station, because the custody issue had been raised by Bailey's counsel on direct appeal. As noted by the Virginia Supreme Court, "[c]ounsel has, as a matter of professional judgment, the right to choose the issues to be pursued on appeal and there is no obligation to raise every possible issue." Order Dismissing State Habeas Petition at 7 (quoting Jones v. Barnes, 463 U.S. 745, 754 (1983)). Because case law supports the appellate team's decision, this Court holds that the Virginia Supreme Court's determination to deny relief on this claim was not an unreasonable application of clearly established federal law. Therefore, Claim VIII shall be dismissed.
B. Petitioner's Claims Based upon Virginia Death Penalty Scheme
1. Claim X — Virginia's Capital Sentencing Scheme Fails to Channel the Sentencer's Discretion with Clear and Objective Standards
Bailey raised this argument on direct appeal, and the Virginia Supreme Court held that it had "thoroughly addressed and rejected in numerous prior capital murder cases" arguments that the Virginia death penalty statute is unconstitutional, and the Court concluded that it "find[s] no reason to modify our previously expressed views on these issues." Bailey, 529 S.E.2d at 579. Because this claim was raised on direct appeal and addressed on the merits, this Court may only determine if the Virginia Supreme Court's decision was reasonable, according to Williams. 529 U.S. at 412-13.
There is a long line of precedent that holds that the Virginia capital punishment statutes are constitutional. See Breard v. Commonwealth, 445 S.E.2d 670, 674-75 (Va.), cert. denied, 513 U.S. 971 (1994) (rejecting argument that Virginia capital punishment statutes fail to give substantial guidance to jury, despite not requiring a finding that aggravating factors outweigh mitigating factors); Turner v. Commonwealth, 364 S.E.2d 483, 488 (Va.), cert. denied, 486 U.S. 1017 (1988) (holding that vileness aggravating factor is not unconstitutionally vague); Walker v. Commonwealth, 515 S.E.2d 565, 569 (Va. 1999), cert. denied, 528 U.S. 1125 (2000). Accordingly, this Court holds that the Virginia Supreme Court's decision to deny relief based on this claim was not contrary to, or an unreasonable application of, clearly established federal law. Therefore, Claim X shall be dismissed.
2. Claim XI — Failure to Provide Defense Counsel Access to Any Investigative Resources Deprived Petitioner of His Right to Assistance of Counsel and to a Fundamentally Fair Trial
In this claim, Bailey argues that he was entitled, under the due process clause of the federal Constitution, to the appointment of an investigator at trial. Bailey's claim is based upon Ake v. Oklahoma, 470 U.S. 68 (1985). On direct appeal, the Virginia Supreme Court addressed this claim on the merits, holding:
We have consistently rejected the contention that defendants, even in capital murder cases, have an indiscriminate entitlement to the assistance of an investigator. . . . Rather . . . the defendant must demonstrate that he has a particularized need, meaning one which is material to the preparation of his defense, for the services of an expert, and that the denial of such services would result in a fundamentally unfair trial. . . . The determination whether a defendant has adequately demonstrated a particularized need for the assistance of an expert rests within the discretion of the trial court. . . . At the hearing on his motion, Bailey merely reiterated his `need [for] some additional assistance by way of the investigation' being conducted by his counsel. These assertions fall far short of demonstrating a particularized need for the services of an expert. `Mere hope or suspicion that favorable evidence is available is not enough to require that such help be provided.' Accordingly, we cannot say that the trial court abused its discretion in denying Bailey's motion for the services of an expert investigator.Bailey, 529 S.E.2d at 578 (internal citations omitted). This Court is limited to determining whether the Virginia Supreme Court's decision to reject this claim was reasonable. See Williams, 529 U.S. at 412-13.
In light of the binding precedent, which clearly holds that a defendant has no due process right to the appointment of an investigator, this Court holds that the Virginia Supreme Court's decision to deny relief based on this claim was not contrary to or an unreasonable application of clearly established federal law. See Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985); Weeks, 176 F.3d at 265-66. Accordingly, Claim XI shall be dismissed.
VI. Bailey's Motion for Funds for a Psychiatrist
Bailey moved this Court for funds for a psychiatrist after filing his federal habeas petition. The issue before the Court on the instant motion is whether Bailey has demonstrated that the funds are "reasonably necessary," as required by 21 U.S.C. § 848 (q)(4)(B), (q)(9). See also Cherrix v. Braxton, 131 F. Supp.2d 756, 762 (E.D. Va. 2000). Bailey contends that the funds are reasonably necessary to identify and develop evidence in support of his habeas claims. Alternatively, Respondent argues that because Bailey's habeas claims must be dismissed, the funds for a psychiatrist are not reasonably necessary. The Court holds that because Bailey is not entitled to a hearing at which the psychiatrist could testify, and because he was previously examined by a psychologist, who testified at the trial regarding Bailey's mental condition, Bailey fails to establish that the funds are reasonably necessary. Therefore, Bailey's Motion for Funds for a Psychiatrist is denied.
Bailey's trial counsel moved the trial court for the assistance of a mental health expert, and the trial court appointed Dr. Nelson, a psychologist. (Pet'r Mot. at 1.) At trial, Dr. Nelson testified as to Bailey's mental health, as previously discussed, supra. Thereafter, in state post-conviction proceedings, Bailey raised numerous claims relating to Dr. Nelson and to the ineffective assistance of Bailey's trial counsel. ( Id.) Petitioner now requests funds for a mental health expert in order to "aid in the identification and development of evidence supporting these claims." ( Id. at 3.)
The Fourth Circuit has interpreted "reasonably necessary" to mean that the habeas petition raises claims entitling the petitioner to a hearing at which the psychiatrist, or other expert, could testify. See Lawson v. Dixon, 3 F.3d 743, 753 (4th Cir. 1993). In this case, none of Bailey's federal habeas claims entitle Bailey to a hearing at which a psychiatrist would be needed to testify. Therefore, Bailey fails to establish that the requested funds are reasonably necessary.
Additionally, the Fourth Circuit has previously made clear that when a petitioner has been evaluated by a mental health expert at trial, a subsequent granting of funds for another mental health expert is not reasonably necessary. See Wright v. Angelone, 151 F.3d 151, 163 (4th Cir. 1998) (holding that funds for a neurologist were not "reasonably necessary" when defendant's mental deficiencies were investigated and presented at trial). See also Orbe v. True, 233 F. Supp.2d 749 (E.D. Va. 2002). In Orbe, the petitioner also claimed that his trial counsel "unreasonably failed to request the appointment of a medical doctor. . . ." Id. at 779. The Court held that, despite trial counsel's failure to request the appointment of a medical doctor, trial counsel had presented a wealth of mental history information concerning the defendant to the jury, and therefore, "the Supreme Court of Virginia's conclusion that this claim fails under Strickland was a reasonable application of the proper governing legal principles." Id. As the Court noted in Orbe, in order for Bailey to succeed on this claim, Strickland requires him to demonstrate that "there is a `reasonable probability' that the outcome of his sentencing would have been different absent counsel's failure to request the appointment of a medical doctor." Id. See Strickland, 466 U.S. at 494. "In some instances it is not possible to perform the prejudice analysis without appointing an expert to determine what the testimony would have been." Orbe, 233 F. Supp.2d at 779 (quoting Cardwell v. Netherland, 971 F. Supp. 997, 1008 (E.D. Va. 1997)). However, in Bailey's case, there are two reasons that make it possible to conduct the prejudice analysis.
First, there is a wealth of information regarding [Bailey's] mental health in the record. Second, it is also possible here to assume for the purpose of analysis what additional information the requested expert would provide and to evaluate possible prejudice on that basis. . . . In contrast to Cardwell, where no psychological expert testified, the record in this case shows that the jury was fully informed concerning [Bailey's] mental health conditions.Id. at 780. Accordingly, Bailey's argument fails to establish a reasonable probability that the additional requested testimony would have altered the jury's verdict. Therefore, Bailey's Motion for Funds for a Psychiatrist is Denied.
VII. CONCLUSION
For the reasons stated above, this petition must be dismissed.
Should petitioner wish to appeal, petitioner must file a notice of appeal within thirty (30) days of the date of this Memorandum Order. Petitioner must also request a certificate of appealability from a circuit justice or judge. See 28 U.S.C. § 2253 and Fed.R.App.P. 22(b). For reasons stated in this Memorandum Order, this Court expressly declines to issue such a certificate.
The Clerk is DIRECTED to enter judgment in favor of respondent pursuant to Fed.R.Civ.P. 58 and to send a copy of this Memorandum Order to petitioner, pro se, and counsel of record for respondent.