No. 97-6999
A-408
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1997
THOMAS H. BEAVERS, JR.,
Petitioner-Appellant,
versus
SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITIONER’S MOTION
TO SUPPLEMENT THE RECORD
Mark Evan Olive
Attorney at Law
; 2014 Lee Avenue
Tallahassee, FL 32312
(904) 531-0119
Counsel of Record for Petitioner
'
December 8, 1997
PETITIONER’S MOTION TO SUPPLEMENT THE RECORD
Comes the Petitioner, by and through undersigned appointed
counsel, and respectfully requests that the Court enter an Order
allowing supplementation of the record, and for cause shows as
follows:
1. One of the claims made by Petitioner is that he has
brain damage and that trial counsel and his pre-trial "expert"
unreatonably failed to note and present strong evidence of this
damage at guilt/innocence and sentencing, in violation of the
Sixth, Eighth, and Fourteenth Amendments.
26 In the district court, counsel for Petitioner filed a
report that was generated pre-trial and which explained that an
MRI film of Petitioner’s brain showed brain damage. J.A. 38.
Petitioner also submitted two reports--generated during post-
conviction proceedings--which discussed the same MRI and the fact
that it showed brain damage. J.A. 336-354. Petitioner claimed,
inter alia, that the failure of trial counsel and their expert to
recognize and present this brain damage, clearly evidenced on
film, violated the Constitution.
3. While reports about the film were submitted with the
petition below, the actual film was not submitted. Counsel
anticipated that a hearing of some sort would be allowed, if only
on Respondent’s motion to dismiss, and that the actual film could
be proffered then. However, no hearing of any sort was allowed,
and no opportunity for submitting the actual film arose. Relief
was summarily denied.
4. Before the circuit court, counsel for Petitioner filed
a notice of intent to rely upon the film, and to exhibit it
during oral argument before the panel, but counsel ultimately did
not press to use the film as an exhibit during oral argument.
5. After the decision of the panel issued, Petitioner
sought to supplement the record with the actual film, but
permission was denied by the Circuit Court. See Attachment B,
Petition for Writ of Certiorari, p. 3.
6. Petitioner believes that it would aid the Court in
considering the petition for writ of certiorari if the actual
film of Petitioner’s brain, and a normal brain, is in the record.
7. The expert who submitted reports about the film in the
district court has actually marked on the film where the brain
damage is, and has submitted a letter/report to undersigned
counsel verifying that the picture of the brain upon which he has
marked is the same picture upon which his reports below were
based.
8. Filed as an attachment hereto is a sealed envelope
containing the film with typing on it showing where the brain
damage is, and the report about these markings submitted by the
expert. The envelope is sealed so that the Court can strike it,
if the Court is so inclined, without looking at what is not in
the record as of yet.
9. However, Petitioner urges the Court to allow this
supplementation of the record. Petitioner is not seeking to
change any claim heretofore submitted. Petitioner seeks only to
have before the Court the actual brain scan from which three
reports, already in the record below, were derived. In other
words, three "word pictures" of the report are in the record;
the actual picture is not.
10. The picture is material, and the interests of justice
warrant this requested supplementation. Under these
circumstances, supplementation is allowable. See Jones v. White,
992 F.2d 1548 (11th Cir. 1993); Lesko v. Lehman, 925 F.2d 1527,
1538 n. 8 (3d Cir.), cert. denied, 112 S. Ct. 273 (1991); Fed.
R. App. P. 10(e).
WHEREFORE, Petitioner respectfully requests that the Court
enter an order allowing supplementation of the record.
Respectfully Submitted,
Mark E. Olive
Attorney At Law
2014 Lee Avenue
Tallahassee, Florida 32312
(904) 531-0119
Counsel for Petitioner
December 8} 1997
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1997 ,
Case No. 97-6999
THOMAS H. BEAVERS, JR.,
Petitioner,
v.
SAMUEL V. PRUETT, Warden
Mecklenburg Correctional Center
Boydton, Virginia,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA
CERTIFICATE OF SERVICE
I, Robert Lee, a member of the Bar of this Court, do hereby
certify that the foregoing motion to supplement the record was
sent, first-class postage prepaid, to Katherine P. Baldwin,
Assistant Attorney General for the Commonwealth of Virginia, 900
East Main St., Richmond, VA 23219, and via facsimile at (804)
786-0142 this day of December, 1997.
“lee
More YL
A covce [ebb was Atached ty Vee
Cat Pehha + AMorm 70 Sulflemen
T Ne heawd and Strrt Yo Wk
bofeanor in re aid to A "Clemeney a
The later stated Ve clams “pat wero
being raised 17 Vie. Cort. pele petoon
MARK EVAN OLIVE
ATTORNEY AT LAW
2014 LEE AVENUE
TALLAHASSEE, FLORIDA 32312
(904) 531-0119 OFFICE
(904) 531-0319 FACSIMILE
Mark C. Christie, Esq.
Office of the Governor
State Capitol, 3rd Floor
Richmond, Virginia 23219
Via Hand Delivery Re: Clemency Petition of Thomas H. Beavers, Jr.;
execution scheduled for December 11, 1997
Dear Mr. Christie:
l intend to meet with you on Wednesday, December 10, 1997, to discuss why the
Governor should grant clemency to Mr. Beavers. The primary reasons are that Mr. Beavers’
brain does not and never has worked correctly, and that no court, judge, or juror, has been
presented with or considered this fact.
Enclosed is a copy of a petition for writ of certiorari filed in Mr. Beavers’ case.
Also enclosed are the reports of Dr. James Merikangas identifying and explaining the effects of
Mr. Beavers’ brain damage. These materials set forth the bases for my request for clemency
for Mr. Beavers.
I look forward to meeting with you on Wednesday.
Sincerely,
Mark Evan Olive
Counsel for Thomas H. Beavers, Jr.
No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1997
THOMAS H. BEAVERS, JR.,
Petitioner-Appellant,
versus
SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
Respondent—Appellee.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Mark Evan Olive
Attorney at Law
2014 Lee Avenue
Tallahassee, FL 32312
(904) 531-0119
$ Counsel of Record for Petitioner
December 4, 1997
This is a capital case.
Ss IN: E D
Petitioner’s claim a.) that expert trial assistance with
respect to his mental state was ‘integral to the building of an
effective defense," Ake v. Oklahoma, 470 U.S. 68, 83 (1985), but
that b.) his appointed defense expert failed "to conduct a
professional examination on issues relevant to the defense," id.
(emphasis added), 470 U.S. at 82, in violation of the Sixth,
Eighth, and Fourteenth Amendments, was not addressed in state
habeas corpus proceedings because the Virginia courts ruled that
the claim should have been raised on direct appeal. The United
States Court of Appeals for the Fourth Circuit held that
Petitioner’s claim was procedurally barred from review under 28
U.S.C. Section 2254 and dismissed Petitioner’s attempt to appeal
the district court’s judgment denying habeas corpus relief.
This case presents the following questions:
Whether a state court post-conviction ruling that
a claim must have been raised on direct appeal, when
the claim dehors the record on appeal, provides an
adequate basis for the state court not to address the
federal constitutional merits of the claim, and whether
that ruling can foreclose federal court review of the
claim under 28 U.S.C. Section 2254?
If the claim that an appointed defense mental
health expert failed to perform an appropriate
evaluation must be raised on direct appeal, does the
Sixth Amendment require that defense counsel create the
record at trial and on appeal that will allow the Ake
issue'to be raised?
Does this Court have jurisdiction to consider this
petition for a writ of certiorari when the lower court
denied a certificate of appealability? (See Hohn v.
United States, No. 96-8986.)
Did the lower court apply the certificate of
appealability/ certificate of probable cause to appeal
standard of Barefoot v. Estelle, 463 U.S. 880 (1983),
properly?
di
QUESTIONS PRESENTED... 2+ eee
TABLES OF CONTENTS . . 2... +. 2+ ee ee
TABLE OF AUTHORITIES .......-+-s.-.-.
OPINIONS BELOW .. 2... ee ee eee eee
JURISDICTION 2... ee ee ee we ee ee
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE ee
I. Introduction... 2 see 2 we eee
II. Facts Relevant to Arguments Presented .
a. What was known by counsel on direct appeal:
there was a serious question regarding
Petitioner’s state of mind, but an unhelpful
"diagnosis" by the defense expert
b. What was learned in post-conviction
proceedings: .. +... +2. ++ eee
1. The defense expert, Gwaltney, was
unable to perform, and was
incompetent .......4..
a. Gwaltney wrote in his
files that he could not
diagnose the defendant
because he had no
information about him. .
b. a pre-trial radiologist’s
report stated that a scan
of the defendant’s brain
revealed brain damage;
Gwaltney saw the report
but inaccurately told
defense counsel that the
brain scan revealed
mothing.....4..2.4e-.
iii
11
Petitioner Needed Competent Expert Assistance;
Petitioner has had significant
brain damage from birth, and a
properly conducted neurological and
psychiatric examination shows that
“because of neurological and
psychiatric forces, Beavers was
impaired at the time of his offense
and this impairment would provide
either a defense or powerful
evidence in mitigation of
punishment." J.A. 366 . ee ee
a. Brain Defect--Handicapped from Birth
b. An Appropriate Evaluation : €
1. Social and Clinical History--
Insane, Abusive Home
Environment .......
2. Physical, Neurological, and
Diagnostic Evaluation--
Brain damage ow ee ew
3. Incompetent Prior Evaluation
4. Forensic conclusions--Petitioner
had legitimate defenses
A Mental Health Defense Was Critical .
The Default in the Lower Court ....
Procedural History .......e+...
REASONS FOR GRANTING THE WRIT .
12
12
13
13
15
16
18
19
23
26
29
THE VIRGINIA STATE COURT’S REFUSAL TO ADDRESS
PETITIONER’S AKE CLAIM BECAUSE IT SHOULD HAVE
BEEN RAISED ON DIRECT APPEAL IS AN INADEQUATE
BASIS FOR FORECLOSING MERITS REVIEW--THE
CLAIM COULD NOT HAVE BEEN RAISED ON APPEAL;
THE LOWER COURT’S SUMMARY ADOPTION OF THE
STATE COURT BAR IS INCONSISTENT WITH THIS
COURT’S DECISIONS AND WILL RESULT IN AKE NOT
BEING ENFORCED IN VIRGINIA . - 2... ee ee
A. This Court’s Precedent Required
that Petitioner Be Provided a
Mental Health Expert Who Performed
an Appropriate Evaluation eee
iv
B. This Court’s Precedent Requires
that an Evidentiary Hearing Be
Conducted on Petitioner’s Claim
that He Was Denied the Assistance
Required Under Ake... . 2.2... eee
C. The Lower Court’s Ruling That This
Ake Claim Was Subject to A
Procedural Default is Inconsistent
With This Court’s Precedent and
Removes a Class of Federal
Constitutional Violations from Any
Review Whatsoever .. .. 2. 2... wee
D. Given the Lower Court’s Ruling that
Defense Counsel Cannot Be Expected
to Understand or Monitor What a
Defense Expert Does, the Ake Right
Cannot be Enforced under the Rubric
of Effective Assistance of Counsel...
It.
FROM THIS COURT’S GRANT OF CERTIORARI IN HOHN
V. UNITED STATES, NO. 96-8986, THERE ARISES
THE FOLLOWING ISSUE IN PETITIONER’S CASE:
IN LIGHT OF THE FACT THAT THE COURT
OF APPEALS DENIED THE PETITIONER’S
REQUEST FOR A CERTIFICATE OF
APPEALABILITY, DOES THIS COURT HAVE
JURISDICTION TO ENTERTAIN THIS
PETITION FOR WRIT OF CERTIORARI? . .. .
IIt.
THE LOWER COURT’S REFUSAL TO GRANT PETITIONER
PERMISSION TO APPEAL FROM THE DENIAL OF
HABEAS CORPUS RELIEF IS INCONSISTENT WITH
THIS COURT’S DECISION IN BAREFOOT V._ESTELLE,
CONCLUSION
463 U.S. 880 (1983) ..-...-.40-
i
40
44
FAI ORITI.
CASES
Ake v. Oklahoma, 470 U.S. 68 (1985) ........... passim
Barefoot v. Estelle, 463 U.S. 880 (1983) ........ 40, 41
Beaulieu v. United States, 930 F.2d 805 (10th Cir. 1991) « - 34
Beavers v. Commonwealth, 427 S.E.2d 411 (Va.), cert. denied,
510 U.S. 859 (1993) «© 2 6 © 6 ee ww ew we ee ew ew ew ew 2G
Beavers v. Netherland, 116 S. Ct. 268 (1995) ........ 27
Beavers v. Pruett, No. 97-4 (July 23, 1997 4th Cir.) .....5
Blackledge v. Allison, 431 U.S. 63 (1977) .......... 34
Bouchillon v. Collins, 907 F.2d 589 (Sth Cir. 1990) ..... 34
Card v. Dugger, 911 F.2d 1494 (lith Cir. 1990) ....... 33
Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995)... . 26, 27
ie) Vv. son, 501 U.S. 722 (1991) . .... +... - 37
Cowley v icklin, 929 F.2d 640 (llth Cir. 1991) ..... 30
Davis v. Jacobs, 454 U.S. 911 (1981) 2... 2 ee ee ew we 40
Ford v. Gaither, 953 F.2d 1296 (11th Cir. 1992) ....... 30
Ford v. Georgia, 498 U.S. 411 (1991) . .. 2... 2.2. 2. - - 35
Hill _v. Lockhart, 894 F.2d 1009 (8th Cir.), cert. denied,
497 U.S. 1011 (1990) 2. 2. 2 ee ee ee we ee ee ew ee 84
Hohn v. United States, 66 U.S.L.W. 3314 (U.S. Oct. 3h 187).
(No. 96-8986) .. - Seas 2 © EG é z
James _v. Kentucky, 466 U.S. 341 (1984) ......+ +. 35, 36
es v 5 son, 1997 WL 668254 (5th Cir. 1997) ...... 26
O'Dell v. Netherland, 95 F.3d 1216 (4th Cir. 1996)(en banc) . 38
Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994) ....... 30
Strickland v. Washington, 104 S. Ct. 2052 (1994) ....-..- 24
vi
Townsend v. Sain, 372 U.S. 293 (1963) ..........2.. 33
United States v. Espinoza, 866 F.2d 1067 (9th Cir. 1988)
United States v.Rodrigquer-Rodriguez, 929 F.2d 747
(lst Cir. 1991) ... . ee er er ee)
STATUTES
21U.8.C. § 848... 2. 2 ee ee ee ee
28 U.S.C..§ 2254 2... ee ee ee
28 WeSC. § 1Q54(L) wee ew we eH He eH He
28U.S.C, $1654 2 ee ee ee ee
Va. Cope ANN. § 19.2-264.3:1...-..-0-5.-5020-0008.
va. Cope ANN. § 19.2-169.5 2... 2 eee ee et ee
Va. CODE ANN. § 8.01-654 . 2. 2 6 2 ee se ewe ew ew wee
American Psychiatric Assocation:
Diagnostic and_
Statistical Manual of Mental Disorders, Fourth Edition,
Washington, D.C., 1994 ..- +. +2. e ese see ewe
Henry J. Friendly, mnocenc: evant? Co al
Attack on Criminal Judgments, 38 U. Chi. L. Rev.
142) 452. (1970) ws se wo we be we ew we ew we ee
vii
. 34
oe 34
3, 12, 24
see 38
sae #2
wee?
-. 8,9
eee «8
we 26
sae 16
. 29
No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1998
THOMAS H. BEAVERS, JR.,
Petitioner-Appellant,
versus
SAMUEL V. PRUETT, Warden,
Mechlenburg Correctional Center,
Respondent-Appellee.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Petitioner, Thomas H. Beavers, Jr., a Virginia death-
sentenced inmate, respectfully prays that a writ of certiorari be
issued to review the judgment of the United States Court of
Appeals for the Fourth Circuit denying a certificate of
appealability and dismissing by unpublished opinion Petitioner’s
attempt to appeal the decision of the United States District
Court for the Eastern District of Virginia denying habeas corpus
relief. '
OPINIONS OW
The unpublished opinion of the circuit court entered
September 23, 1997, is attached as Appendix A to this petition.
1
The Order entered November 4, 1997, denying rehearing and
suggestion of rehearing en banc is attached as Appendix B. The
opinion of the district court is attached as Appendix Cc.
JURISDICTION
This Court’s jurisdiction is invoked under Title 28 U.S.C.
Section 1254(1) and Title 28 U.S.C. Section 1651.
NS! ONAL S' ‘OR’ OVIS S_ INV
The Eighth Amendment to the Constitution of the United
States provides in relevant part:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel or unusual punishments
inflicted.
The Fourteenth Amendment to the Constitution of the United
States provides in relevant part:
No State shall ... deprive any person of life, liberty,
or property, without due process of law.
The Sixth Amendment to the Constitution of the United States
provides in relevant part:
In all criminal prosecutions, the accused shall enjoy
the right ... to have the assistance of counsel for his
defence.
s' ME: OF THE CAS
Zs Introduction ,
Mr. Beavers was convicted and sentenced to death for a
murder that occurred because Mr. Beavers’ brain did not, does
not, and never has worked right. It does not work correctly
because
Mr. Beavers has a congenital malformation of the
brain and a tumor of the pineal gland in the brain.
Both of these neuroanatomic abnormalities are of
2
significance to his mental state at the time of the
offenses ..,. The cerebellum of the brain which, in the
case of Mr. Beavers is malformed, has complex
relationships with the rest of the brain primarily of
an inhibitory nature. The cerebellum is important to
cognition and there is a great deal of literature
regarding the importance of the cerebellum to such
psychiatric illnesses as autism, violent behavior and
mental retardation.
The pineal gland is involved in sexual development
and may be producing hormones which have adverse
effects on Mr. Beavers’ sexual behavior.
J.A. 339-40.
The jurors who judged Mr. Beavers were not told about Mr.
Beavers’ handicap despite the fact that it was documented on film
at the time of trial. The jurors’ ignorance was not brought
about as a matter of strategy on defense counsel’s part, nor was
it because brain damage was a "theory" that was rejected by some
pre-trial expert. The defective brain simply was not shown to
the jurors because it went unnoticed by counsel and by the
defense "expert."' Consequently, the jurors did not know that
"because of neurological and psychiatric forces, Beavers was
impaired at the time of his offense and this impairment would
provide either a defense or powerful evidence in mitigation of
punishment." J.A. 366 (district court opinion).
In post-conviction proceedings, counsel for Petitioner
discovered that the expert who had been appointed to assist the
defense at trial, Dr. Gwaltney (a psychologist), did not perform
A
‘pursuant to 21 U.S.C Section 848, the district court judge
appointed an expert psychiatrist, Dr. James Merikangas, who
conducted an appropriate evaluation of Petitioner. J.A. 336-344,
345-354, The above-quoted information is taken from Dr.
Merikangas’ report.
a competent or appropriate evaluation of Petitioner. Dr.
Gwaltney’s files documented, in his own words, that he did not
have sufficient information to, and so could not, diagnose
Petitioner. Information essential for a proper evaluation
included that Mr. Beavers’ mother was extremely mentally ill.
Readily available psychiatric hospital records document that she
attempted to kill him by drowning when he was a few months old.
Life with this schizophrenic mother, who was in and out of mental
hospitals all of her life, was so dysfunctional, threatening, and
chaotic for Mr. Beavers that he planned suicide from the time he
was five years old, and tried to kill himself asa child and as
an adolescent. The jurors did not know this, did not know that
social service agencies and medical professionals had documented
Petitioner’s childhood abuse at the hands of his mother and
father, and did not know the psychiatric forensic consequences of
this history--all because the expert appointed to assist Mr.
Beavers at trial did not have the information.’
As set forth in section II, c, of the statement of the case,
infra, the only defense to the crime for which Mr. Beavers was
convicted, and to the state’s evidence introduced to show future
dangerousness at capital sentencing, was Mr. Beavers’ mental
4x. Beavers’ mother has been treated all of her life for
paranoid s¢hizophrenia and bipolar disorder. Her illness
_ yendered her chronically psychotic, and she was involuntarily
committed many times.
‘Mr. Beavers was involuntarily hospitalized ina psychiatric
hospital six months before the offense. He was taking prescribed
anti-psychotic medication during his trial.
4
illnesses and defects. Even a non-independent psychiatrist
opined pre-trial that the issue of insanity was a serious one.
Thus, the need for a defense mental health expert .
In state habeas corpus proceedings, the Petitioner raised
the claim that his expert had not performed. The Virginia
Supreme Court ruled that the claim should have been raised on
direct appeal. The United States Court of Appeals for the Fourth
Circuit held that this state ruling barred federal review of
Petitioner’s challenge. Beavers v. Pruett, No. 97-4 (4th Cir.
September 23, 1997) (unpublished) (Wilkins, J., joined by Luttig,
g., and Williams, J.).
In this Petition, Petitioner Shows that under the
circumstances presented by the state court’s and the federal
court’s orders, Ake does not provide an enforceable federal due
process right in Virginia.
Il. act: elevant to en: Prese:
a. What was known by counsel on direct appeal:
& wi erious tion re
Petiti ‘s stat £ mind it u
"di is" ant 2: @ expe:
By pre-trial court order, Petitioner was evaluated by Don H.
Killian, Ph.D., for competency and sanity. Dr. Killian found
petitioner competent, but had serious questions about Mr.
Beavers’ mental state at the time of the crime. On June 18,
1991, he wrote to the Commonwealth’s Attorney about these
concerns’ and indicated that "further studies" were needed,
stating: "I do not think that these further studies can be
conducted on an outpatient basis here (the Riverside Center for
Psychological Services)." Dr. Killian recommended that the
studies occur at Central State Hospital. J.A. 009. Defense
counsel was provided a "cc" of this letter.
Killian also wrote to defense counsel on June 18, 1991, and
elaborated on his letter to the Commonwealth’s Attorney. Killian
discussed his concerns about Petitioner’s mental state at the
time of the offense, and stated that "these concerns would be
better addressed at Central State Hospital."®
‘In his letter to the Commonwealth’s Attorney, Killian said:
The Mental Status at the Time of the Offense
evaluation is considerably more complex.
Without getting into any kind of detail, and
based upon my examination, I do think that
there are some major issues and questions
here which need further study and
clarification. These questions and issues are
I believe particularly important and
pertinent because of the gravity of the
charges against him and because of the role
of possible psychiatric or psychological
factors in the case of such a grave charge.
J.A. 009 (emphasis added).
5In the letter to defense counsel, Killian stated:
I think that there are two issues which Central State
Hospital is in a better position to explore than I am.
The first is a straightforward one, and surrounds Mr.
Beavers’ contention that he was extremely intoxicated
on both cocaine and alcohol at the time of the alleged
offense. As I understand it, self-induced intoxication
can be an issue in capital murder. The second is a
more difficult point. Mr. Beavers gives a fairly good
description of at least a partial dissociative
(continued...)
Defense counsel was thus aware that outpatient evaluation
was not sufficient, and that inpatient evaluation at Central
State Hospital might adequately assess Mr. Beavers’ mental state
at the time of the offense. Defense counsel also was aware that
inpatient help was not going to occur. On July 18, 1991, one
defense counsel wrote to his co-counsel:
The. people at the jail seem to think that
Central State would call for Beavers to be
sent up, but that they might not be keeping
him overnight. I’ve never known this to be
the case. Everyone that I had that Dr.
Killian thought needed further study were
looked at as inpatients.
J.A. 010.
On August 8, 1991, Petitioner was seen, on an out-patient
basis, at Central State Hospital, by two state psychiatrists.
These two state psychiatrists (Scott and Kasper). reported to the
trial court, to the Commonwealth, and to defense counsel that
Petitioner was competent to stand trial, but also that the
Petitioner was "taking a psychotropic medication," and that,
"given the defendant’s history of impulsive behavior with poor
5(...continued)
experience during some of the events which led to his
arrest. He, for example, describes himself as ‘like
outside of myself, looking at my hand, real weird, like
someone else controlling me, like I was in shock.’ He
goes on to say ‘like I was looking, like someone had
me, like looking at me and at her both.’ I cannot
determine exactly how much credibility to assign to
this yeport, and I can additionally not determine how
significant in degree his alteration of consciousness
-may-have been. I do think that the staff at Central
State Hospital would be able to evaluate him more
thoroughly on this ... ,
J.A. 008.
judgment ... we would recommend that Mr. Beavers continue to
receive close psychiatric observation and treatment while
incarcerated." J.A. 014
These two psychiatrists also reported that Petitioner was
not insane at the time of the offense. Their diagnosis was that
Petitioner suffered from polysubstance abuse, had an antisocial
personality disorder, and had no major mental illnesses. J.A. 024
Thereafter, on November 26, 1991, counsel for Petitioner
sought, and the trial court ordered, a defense mental health
evaluation "as required pursuant to 19.2-169.5." See Motion for
Psychiatric Assistance, filed November 8, 1991; see also J.A. 26-
27 (court order that evaluation "shall be performed pursuant to
Virginia Code Section 19.2-169.5 ..."). Virginia Code Section
19.2-169.5 applies when "there is probable cause to believe that
the defendant’s sanity will be a significant factor in his
defense and that the defendant is financially unable to pay for
expert assistance." By the same motion and order, a defense
expert was sought and granted "for the purpose of evaluating the
defendant and to assist in his defense in the preparation and
presentation of information concerning the Defendant’s history,
character, or mental condition." Id.
Henry 0. Gwaltney, Jr., Ed.D., worked at Central State
Hospital. ,He was appointed as a defense psychologist under
Virginia Code § 19.2-264.3:1. Instead of independently evaluating
Petitioner, Gwaltney evaluated him with Dr. Scott, who had
earlier evaluated Petitioner for the Court by Court order, with
respect to competency and sanity, not mitigation. In other
words, Gwaltney evaluated Petitioner with one of the persons
whose evaluation he was supposed to be critiquing for defense
counsel. ,
Gwaltney reported to defense counsel that the scan of
Petitioner’s brain "revealed nothing relevant," that he agreed
with the non-independent experts’ diagnosis of "anti-social
personality disorder,"® and that there was nothing that could be
presented in mitigation of punishment--it would be "fruitless."
J.A. 045.
b. What was learned in post-conviction
proceedings:
Trial counsel handled Petitioner’s appeal to the Virginia
Supreme Court. They did not attempt, either at trial or on
appeal, to learn the bases for their defense expert’s report, or
to provide the expert with sufficient information to make a
diagnosis.
1. The defense expert, Gwaltney, was
unable to perform, and was
incompetent
a. Gwaltney wrote in his
files that he could not
diagnose the defendant
because he had no
information about him
Post-conviction counsel obtained Gwaltney’s files. In his
notes, Gwaltney documented that he had insufficient information
‘Gwaltney could not form his own diagnosis because he had
inadequate information, as he acknowledged in notes to his file.
Thus, he simply agreed with the diagnosis of a non-independent
expert.
to evaluate and diagnose Petitioner. Gwaltney’s file contains a
typed document entitled "Statistical Release Note," which recites
that
{Beavers] was admitted into the Forensic Unit
on an overnight, out-patient basis. A
ete =u) lone i ch cas
pursuant to Hospital Instruction #5150.5A.
J.A. 041. Despite the fact that Mr. Beavers was sent to Central
State Hospital specifically because outpatient evaluation was
insufficient, an outpatient "evaluation" was what he received,
not a "complete work-up."
, Psychiatric and psychological diagnoses are made on five
waxes," See American Psychiatric Association: Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition,
Washington, D.C., American Psychiatric Association, 1994, pp. 25-
31. With respect to Axis I and Axis II, Gwaltney "deferred
diagnosis."" With respect to Axis III, Gwaltney stated "None."
With respect to Axis IV and V, Gwaltney wrote "Unspecified," id.,
because of "{ijnadequate Information." Id. J.A. 040.
, Thus, bec i ocol_and_ bec. he_ha
ina te rmati Gwalt, de iaqnosis
ardi etit er.
10
b. a pre-trial radiologist’s
report stated that a scan
of the defendant’s brain
revealed brain damage;
Gwaltney saw the report
but inaccurately told
defense counsel that the
brain scan revealed
nothing
In addition to having "inadequate information," Gwaltney
ignored the evidence that he did have. He wrote that film of
Petitioner’s brain’ "revealed nothing relevant to the purpose of
our examination." J.A. 044. In fact, the radiologist who
reviewed the film wrote the following about Petitioner’s brain:
({p]rominent cisterna magna, arachnoid cyst (which]
would be a consideration in the differential diagnosis.
There is intense enhancement of the pituitary, normal
finding. There is intense enhancement of the pineal,
although there is no mass effect, pinealoma needs to be
considered in the differential diagnosis.
J.A. 038. ,
Thus, a brain defect was identified, it "would be a
consideration in thet multi-axial, differential, DSM-IV
diagnosis, and Gwaltney, who is not a medical doctor, stated that
the brain scan showed "nothing relevant."
Having insufficient information to diagnose Petitioner, and
having failed to read or understand the radiologist’s report,
Gwaltney wrote that he agreed with the diagnoses made earlier by
Tan EEG, skull X-ray, and MRI were performed on Petitioner.
Only the skull x-ray report was present in Dr. Gwaltney’s file
when undersigned counsel reviewed it.
LL
the non-independent psychiatrists, Scott and Casper.é
2. Petitioner has had significant
brain damage from birth, and a
properly conducted neurological and
psychiatric examination shows that
because of neurological and
psychiatric forces, Beavers was
impaired at the time of his offense
and this impairment would provide
either a defense or powerful
evidence in mitigation of
punishment." J.A. 366
An expert, Dr. James Merikangas, funded pursuant to 21
U.S.C. Section 848, conducted an evaluation of Petitioner and
provided the district court with diagnoses. One diagnosis was
derived from film available to the defense psychologist pre-
trial.
a. Brain Defect
According to Dr. Merikangas:
A review of his MRI scans indicated that he has a
malformation of the Dandy-Walker complex type with
atrophy of the cerebellum and enlargement of the
subarachnoid space by a cyst. The pineal gland is also
enlarged and had increased its size between the scan of
January, 1992 and October, 1995.
Clearly Mr. Beavers has a congenital malformation
of the brain and a tumor of the pineal gland in the
brain. Both of these neuroanatomic abnormalities are
of significance to his mental state at the time of the
‘Gwaltney stated that "I believe that Mr. Beavers’ history,
mental condition and behavior as related to the offenses is well
presented in the report of August 8, 1991 by Dr. Scott and Dr.
John A. Kasper, Jr. I agree with their diagnosis presented in
that report, i.e. Polysubstance Dependence and Anti-social
Personality Disorder." J.A. 045.
Drs. Scott and Kasper did not know about the brain damage--
the film of Petitioner’s brain was not obtained until January 27,
1997, over five months after their reports, upon which Gwaltney
relied.
12
offenses and it is evident that their significance was
unknown to his previous examiners. The cerebellum of
the brain which, in the case of Mr. Beavers is
malformed, has complex relationships with the rest of
the brain primarily of an inhibitory nature. The
cerebellum is important to cognition and there is a
great deal of literature regarding the importance of
the cerebellum to such psychiatric illnesses as autism,
violent behavior and mental retardation.
The pineal gland is involved in sexual development
and may be producing hormones which have adverse
effects on Mr. Beavers’ sexual behavior. This has not
been fully evaluated.
J.A. 338-39.
_ b. An Appropriate Evaluation
Dr. Merikangas also conducted "a proper mental health
evaluation [which] includes the taking of a social and clinical
history, documentation of the history through records and
witnesses, a thorough physical and neurological examination,
diagnostic testing, and a mental status exam." J.A. 337. Dr.
Merikangas concluded that Dr. Gwaltney did not perform an
appropriate evaluation, and that an appropriate evaluation
provided significant forensic results: "[a] proper evaluation
and diagnosis reveals the existence of brain damage, major mental
illnesses and other extenuating and mitigating factors." J.A.
343. ;
1 cial a Clinical H. cated
Insane, Abusive Home
Dr. Merikangas provided the following snapshot of the
i
Petitioner’s social and clinical history, a history not compiled
by Gwaltney, pre-trial.
Mr. Beavers’ family and clinical history provides
13
a compelling genetic and environmental cause for the
mental illnesses and mental defect from which he
suffers.
Mr. Beavers grew up in a chaotic, dysfunctional,
and very harmful and threatening environment. He was
subjected to continuous mental abuse by his mother who
has a long-standing diagnosis of chronic psychosis. By
all accounts she attempted to murder him when he was
several months old by drowning him. There is clearly a
familial diathesis to drug and alcohol abuse and mental
illness in the background of Mr. Beavers. Being raised
by an emotionally unstable and, frankly, psychotic
mother and having a father who was unable to provide
proper parenting resulted in a lifetime of mental
illness of Mr. Beavers.
Mr. Beavers first experienced drugs at a very
early age when he sniffed or "huffed" some kind of
inhalant at age five or six. At about the same age Mr.
Beavers first experienced suicide ideation, which is an
alarmingly young age for such thoughts. Beginning in
elementary school Mr. Beavers developed a serious drug
and alcohol problem, due mainly to his home environment
and self medication for chronic headaches. He has
suffered from headaches and blackouts, starting at a
very early age. He is himself a victim of abuse, both
sexual abuse by homosexuals at age 9 or 10, and at age
14
16 or 17, and verbal and physical abuse.
Mr. Beavers was 18 at the time of his offenses and
he is presently very remorseful and regrets what
happened. He has compassion for his victims and makes
no excuse for his behavior. I believe that he was
under extreme emotional disturbance at the time of the
offenses, as he was going through the separation and
loss of his wife and child. I believe he very clearly
would not have committed these crimes had he not been
under the influence of drugs and alcohol.
Six months prior to the death of Mrs. Lowery, Mr.
Beavers was involuntarily committed to Peninsula
Psychiatric Hospital because of suicidal ideation. He
had tried to hang himself. He was receiving
antipsychotic medication at the time of his trial.
J.A. 337-338.
2. Physical, Neurological, and
Diagnostic Evaluation~-Brain Damage
Dr. Merikangas’ conclusion that Petitioner is brain-damaged,
and has been from birth, is based upon his review of the brain
photograph that was available to the pre-trial expert. Dr.
Merikangas’ physical and neurological examination of Petitioner
also revealed brain damage.
{Mr. Beavers] is a well-developed, well-nourished
young man who is left handed. His blood pressure is
120/80. He indicated that he suffers from migraine
headaches which are primarily right sided. These are
1s
accompanied by blurred vision and nausea. He is
getting no treatment for these and never has had any
treatment.
In brief, his neurological examination was
abnormal. His deep tendon reflexes were symmetrically
overactive at 4+, Plantar response was down going but
he had positive palmomental reflexes bilaterally. The
examination of the cranial nerves revealed that cranial
nerve I was intact to cloves and vanilla. II, pupils
were round regular equal reactive to light and
accommodation. Optic discs and fundi appeared normal.
Cranial nerves III, IV and VI, extraocular movements
were full without nystagmus. Cranial nerves V and VII
were symmetrical. Cranial nerve VIII, weber
lateralized to the left. Air conduction was greater
than bone conduction bilaterally. Cranial nerves IX,
X, XI and XII were normal but it was noted that he had
a mid-line defect in his palate which was high and
arched.
J.A. 338-339.
3. Incompetent Prior Evaluations
Dr. Merikangas concluded that Gwaltney "incompetently
performed in conflict with proper standards" in that he "did not
obtain a complete clinical history, did not perform proper
physical and neurological examinations, and ignored important
diagnostic testing results." J.A. 340-341.
16
Dr Merikangas noted that Dr. Killian’s admonition--that
"(t]he mental status at the time of the offense evaluation is
considerably more complex. Without getting into any kind of
detail, and based upon my examination, i 2 2 som
2: ons here which nee 1 a
el ication"--did not have its desired effect. The mental
status issue was not in fact properly studied later or clarified.
Examiners Scott and Jasper saw Petitioner before the brain scan
eccurred. Gwaltney--the defense psychologist--saw Petitioner
after the brain scan, but failed to understand the scan.
Petitioner’s "background is of a childhood at home with a
psychotic and abusive mother and with his own ongoing severe
depression and marital discord," which was not taken into
account. According to Merikangas:
Gwaltney indicated "Mr. Beavers was admitted into the
Forensic Unit on an overnight, outpatient basis. A
complete work-up is not done in such cases pursuant to
hospital instruction number 5150-5A." Despite having
not done a complete workup, Dr. Gwaltney, a doctor of
education, came to the conclusion that he would defer
the diagnosis on Axis I and Axis II and that Mr.
Beavers had no diagnosis on Axis III of the DSM system.
He then discharged Mr. Beavers to the jurisdiction of
the court despite having an MRI scan that showed a
malformation of the posterior fossa of the brain
including a tumor of the pineal gland. He stated: "in
addition to record reviews and interviews he received a
skull x ray and electroencephalogram and magnetic
imagery of the head (MRI). The results of the latter
three consultations revealed nothing relevant to the
" purpose of our examination."
i
This is, of course, on the face of it, incorrect.
J.A. 341-42.
17
4. Forensic conclusions
Dr. Merikangas concluded:
Mr. Beavers has a congenital malformation of the
brain and an acquired tumor of the pineal gland of the
brain, a diagnosis of major affective disorder
depressed, history of drug and alcohol abuse during the
developmental period of his adolescence, and a family
history, both genetic and environmental, of major
mental illness. The preponderance of evidence both
neurological and psychiatric forces the conclusion that
Mr. Beavers was impaired at the time of the offenses
for which he stands convicted, and that this impairment
would provide either a defense to the crimes charged
(insanity, absence of intent, or otherwise) and
powerful evidence in mitigation of punishment. Mr.
Beavers was actively intoxicated at the time of the
events in question. A long history of drug and alcohol
abuse clearly had an influence upon Mr. Beavers’
behavior which cannot be considered fully voluntary as
Mr. Beavers was suffering from serious depression
including psychiatric hospitalization for a suicide
attempt prior to the crimes for which he Has Beda
convicted. He obviously was not fully responsible for
his own mental state.
The psychologists and the doctor of education who
expressed opinions in his case are simply not qualified
18
to evaluate a complex neuropsychiatric situation and
several of them did, in their reports, admit that fact.
It is medically false to state that Mr. Beavers was not
impaired at the time of the offense. It is apparent
even to a layman that the actions of a brain damaged,
psychiatrically ill, intoxicated young man suffering
from an extreme emotional disturbance at age 18, are
not free and voluntary.
_ The evaluations provided for Mr. Beavers before
his trial in this case were professionally inadequate.
A proper evaluation and diagnosis reveals the existence
of brain damage, major mental illnesses and other
extenuating and mitigating factors.
J.A. 343-44.
c. Petitioner Needed Expert Assistance;
A Mental Health Defense Was Critical
The offenses for which Petitioner was convicted and
sentenced to death were bizarre and unexplainable, absent a
mental disease or defect.®
Police went to the home of Maguerite Lowery when they found
her car abandoned and ablaze. When no one answered the doorbell
at Mrs. Lowery’s house, an officer entered through a side door
which was slightly ajar.
Inside the house, the officer was confronted with weird and
*See Cowley v. Stricklin, 929 F.2d 640, 644 (11th Cir.
1991) (Ake rights of critical importance when, "given the
overwhelming evidence of his guilt, [the petitioner’s] only
viable defense was that of insanity.").
19
baffling scenes as he moved from room to room. He first entered
the kitchen, where one of the stove burners was on, pills were
scattered across the stove and counter, and a charred photograph
of Mrs. Lowery and a male friend was on the stove or floor. The
officer followed a trail of white powder leading down the hallway
to the bedroom. :
In the bedroom, he found the nude, lifeless body of Mrs.
Lowery, an elderly woman. The room was in great disarray. There
were pills scattered all over. An opened Bible lay on Mrs.
Lowery’s abdomen. An oily liquid had been applied to her body
and cleaning powder had been sprinkled over her. Pills were
meticulously lined up on her body and a red waxy material --
apparently Close-Up toothpaste -- was smeared around her breasts,
thighs, and vagina.
A year passed without any arrest being made in the Lowery
case. Police did not suspect Beavers of the crimes against Mrs.
Lowery until receiving a report of another crime in which he was
involved. The facts of that crime are no less bizarre.
Beavers knew the victim, who was his next-door neighbor.
According to the victim, Shirley Hodges, one night while he was
at her house Beavers grabbed her from behind and put his hand
over her mouth. When she became frightened and began to breathe
rapidly as a result, Beavers got a piece of paper and tried to
fan her to help her catch her breath. Once she had settled down,
he told her to take off her clothes. She did not do what he told
her, but asked him what was wrong. Beavers explained to her that
20
he did not want to do this to her. They sat together on the
couch and she comforted him, patting him on the shoulder and
listening to his despair over his wife’s plan to leave him and
take their son away. She offered to take him to meet with her
lawyer about the matter the next day. Mrs. Hodges’ daughter
telephoned and Mrs. Hodges told her that she did not feel well
but would call her back.
Ultimately Beavers did have had sex with Hodges.
Afterwards, Mrs. Hodges got up and washed herself in the
bathroom. When she returned to the bedroom, she found Beavers
sitting on the bed, looking as though he was in a trance. Again
she comforted him, patting him on the shoulder. She told Beavers
that if he agreed to fix her broken window, she would not tell
anyone what had happened. She also agreed to meet him at her
lawyer’s office the next day as she had proposed earlier. When
her daughter called back, Hodges told her that she was feeling
better. Beavers measured the window that needed to be fixed, and
promised to return to repair it. Mrs. Hodges later told police
that Beavers smelled of alcohol, that his eyes looked like
"somebody high," and that he had never threatened her with
physical violence.
The prosecution also presented a third, unadjudicated
incident of rape by Thomas Beavers of a woman named Mary
Stallings that was equally strange. In this incident Beavers
insisted that his victim identify him; when she could not do so,
he identified himself. Although he grabbed her in a totally dark
21
room, he immediately asked her if she knew who he was. When she
said, "No," he said, "I live behind you; now do you know who I
am?" When she again said, "No," he told her, "I’m Tommy,
Junior." Then he turned on the lights and asked, "Do you know me
now?" Finally, she said, "Yes." Beavers asked her whether she
was afraid of him, and she told him no. She got him some Kool-
Aid to drink, and they talked about his job, his wife and son,
and Mrs. Stallings’ son. Finally, she said, "Whatever you are
going to do, go on and do it now." She said that Beavers’ "voice
got real heavy-like; this is an order. He was changing."
Afterward she told him she would not turn him in, but she asked
him to get help. She told him he had not hurt her. He began to
cry. He asked her to drive him to the store to buy cigarettes
and she agreed: to do so. Mrs. Stallings did not go to the
police.
When police arrested and interrogated Beavers about Mrs.
Lowery’s death, he stated that he had been high on cocaine and
drunk on beer, and tried to break into Mrs. Lowery’s house to
steal something to get back the money he had spent on cocaine.
When Mrs. Lowery woke up, he ran up to her and grabbed her,
putting his hand over her mouth to keep her quiet.
Petitioner stated that he felt like someone else took over
and was telling him what to do and making him feel evil and
angry. His voice got extremely deep, "like the devil was talking
for me," and he did not know what he was doing. She kept
screaming, so he put a pillow over her face until she stopped.
22
When he removed the pillow, she began to scream again. Beavers
pulled off her clothes and tried to have sex with her. She
continued screaming. He put the pillow over her face again and
removed it again when she stopped screaming. After he removed it
she began to gasp violently for air. He stopped having sex with
her. She continued to gasp for air then stopped moving.” He
said he "lost it" at that point. He went into the bathroom but
the reflection in the mirror "wasn’t me." He had a memory of the
Bible being placed on Mrs. Lowery, and Ajax cleaning powder and
perfume sprinkled around the room. He thought that he may have
done other things but could not remember. He drove Mrs. Lowery’s
car to a nearby shopping center but panicked when a woman parked
near him because he believed she somehow knew what he had done.
He set the car on fire and walked home.
This is all a very bizarre story. When Petitioner was first
evaluated, these circumstances led a non-independent psychiatrist
to conclude that insanity was a real issue in the case. See
ecti II, a, Statement of the Case, supra.
a. The Default in the Lower Court
In its opinion denying permission to appeal from the denial
of habeas corpus relief, the Court of Appeals treated as a
procedural default the Virginia Supreme Court’s habeas corpus
ruling that the Ake claim should have been raised on direct
x -subsequent autopsy of Mrs. Lowery revealed that Mrs.
Lowery had a very restricted blood flow due to a heavy plaque
build-up on the inside walls of her arteries. This made her
unusually susceptible to a heart attack in the event of an oxygen
disruption.
23
appeal. With respect to Petitioner’s claim that counsel was
ineffective under Strickland v. Washington, 104 S.Ct. 2052, 2064
(1984), for failing to enforce Petitioner’s Ake rights, the Court
of Appeals denied relief, commenting that
{a]ttorneys need not be mental health experts or
medical doctors, and they are not held to a standard of
competence requiring them to be. Pursuant to defense
counsel’s request .... Dr. Henry 0. Gwaltney, Jr., a
forensic clinical psychologist was appointed. ...
Beavers’ attorneys did not perform unprofessionally in
relying on his court-appointed mental health expert.
Beavers v. Pruett, Slip opinion, p. 8.
On rehearing and suggestion of rehearing en banc, Petitioner
alleged, as he had in his petition and in his briefs, that the
Ake claim could not have been raised on direct appeal. The panel
ruling that a lawyer ought not be faulted for "relying on his
court-appointed mental health expert" demonstrates why the claim
was not in the direct appeal record--the panel ruled that trial
counsel cannot be expected to know what the expert knows, to
question what the expert is doing, or to look in the expert’s
files to determine what the expert relied upon. If a lawyer is
to rely on the expert to the degree held by the panel, then what
the expert actually did and did not do will not appear in the
direct appeal record.
On rehearing, the panel contradicted its opinion, and added
some absurdity. The panel wrote:
Beavers admittedly knew or should have known of the
type of mental examination to which he was subjected
and of his court appointed expert’s qualifications.
Obviously, this information was available to Beavers
prior to trial.
24
Order on Petition for Rehearing With Suggestion for Rehearing En
Banc, p. 2. If by this the lower court meant that a brain
damaged defendant is responsible for knowing how he or she has
been examined, the qualifications of the examiner, and what a
picture of his brain revealed, then the court’s comment is
absurd.
If the comment means that defense counsel should have known
these things, then the panel opinion regarding defense counsel’s
right uncritically to "rely upon" the expert should have been
withdrawn on rehearing, but it was not.
The panel went on to say:
Indeed, Beavers recognized as much in his alternative
argument that his trial attorney was constitutionally
ineffective for not having a more complete evaluation
performed and in failing to ensure that an expert with
a medical degree examined him. Consequently, Beavers
cannot be heard to complain that he could not have
raised his Ake claim before the state trial court or on
direct appeal.
Thus, the lower court
1. "defaulted" the ake claim because it supposedly
could have been raised on direct appeal;
2. then wrote that trial and appellate counsel have
no ability or obligation to learn the facts that would support an
Ake claim on direct appeal, because trial counsel should rely
upon their‘mental health experts; and
; 3. then wrote, on rehearing, that because Petitioner
alleged in the alternative that trial counsel was ineffective
vis-a-vis the expert, Petitioner had conceded that the claim
25
should have been in the direct appeal record and hence it was
properly defaulted.
IiL. Procedural History
The Petitioner was indicted in the City of Hampton,
Virginia, for murder and other charges. On June 10, 1992, in the
Circuit Court of the City of Hampton, Virginia, Part III, a jury
found him guilty of one count of rape in violation of Va. Code §
18.2-61, one count of capital murder in violation of Va. Code §
18.2-31, ome count of grand larceny in violation of Va. Code §
18.2-95, and one count of arson in violation of Va. Code § 18.2-
81. The jury sentenced Petitioner to eight years imprisonment
for the arson, ten years imprisonment for the grand larceny, and
life imprisonment for the rape conviction. On June 11, 1992, the
jury sentenced Petitioner to death for capital murder. Ata
sentencing hearing on July 7, 1992, the Honorable John D. Gray
imposed the death sentence, and entered the jury’s sentences of
imprisonment for Petitioner’s other convictions. Petitioner
appealed his convictions and the death sentence to the Virginia
Supreme Court. On February 26, 1993, the Virginia Supreme Court
affirmed the judgment. Beavers v. Commonwealth, 427 S.E.2d 411
(Va.), cert. denied, 510 U.S. 859 (1993).
On March 25, 1994, the Circuit Court for the City of
Hampton, Virginia, ordered Petitioner to file his petition for
1
_writ of habeas corpus pursuant to Va. Code § 8.01-654 by April
18, 1994, but allowed him until May 6, 1994 to amend his
petition. Petitioner filed an original habeas corpus petition on
26
April 18, 1994, followed by an amended petition on May 6, 1994.
Thereafter the trial court summarily granted the Attorney
General’s motion to dismiss the habeas petition. The court later
adopted verbatim the findings of fact and conclusions of law
proposed by the Virginia Attorney General.
On April 24, 1995, the Virginia Supreme Court denied
Petitioner’s petition for appeal. On July 11, 1995, the Chief
Justice of the United States Supreme Court granted an extension
of time until August 22, 1995, for Petitioner to file a petition
for a writ of certiorari to the Supreme Court of the Commonwealth
of Virginia.
On August 18, 1995, counsel for Respondent mailed a letter
to Judge John D. Gray, requesting that an execution date be set.
On August 22, 1995, Petitioner filed a petition for writ of
certiorari in this Court. On August 25, 1995, Judge Gray entered
an Order setting the Petitioner’s execution for October 17, 1995.
The Commonwealth filed a response to the petition for writ of
certiorari on August 30, 1995. On October 2, 1995, this Court
denied the petition. Beavers v. Netherland, 116 S. Ct. 268
(1995).
On October 11, 1995, Petitioner filed a motion for
appointment of counsel and stay of execution in the district
court. The Court stayed Petitioner’s execution and appointed
counsel. No further hearings were ordered or conducted in this
case in the district court. ;
A petition for writ of habeas corpus was filed, and the
27
Respondent filed a motion to dismiss. Without allowing oral
argument on the motion, the district court granted the motion
by order entered November 19, 1997.
Because he was instructed to by the Clerk of the Circuit
Court, counsel filed a request for a certificate of appealability
in the circuit court. Thereafter, Petitioner filed a request for
a certificate of probable cause to appeal. The Circuit Court
denied the certificates.
After rehearing was denied on November 4, 1997, an execution
date of December 11, 1997, was set. On December 3, 1997, the
Circuit Court denied Petitioner’s request for a stay of
execution.
28
REASONS FOR GRANTING THE WRIT
I.
THE VIRGINIA STATE COURT’S REFUSAL TO ADDRESS
PETITIONER’S AKE CLAIM BECAUSE IT SHOULD HAVE
BEEN RAISED ON DIRECT APPEAL IS AN INADEQUATE
BASIS FOR FORECLOSING MERITS REVIEW--THE
CLAIM COULD NOT HAVE BEEN RAISED ON APPEAL;
THE LOWER COURT’S SUMMARY ADOPTION OF THE
STATE COURT BAR IS INCONSISTENT WITH THIS
COURT’S DECISIONS AND WILL RESULT IN AKE NOT
BEING ENFORCED IN VIRGINIA
A. This Court’s Precedent Requires that
Petitioner Be Provided a Mental Health Expert
Who Performs an Appropriate Evaluation
"(Wjhen a defendant demonstrates to the trial judge that his
sanity at the time of the offense is to be a significant factor
at trial, the state must, at a minimum, assure the defendant
access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, preparation,
and presentation of the defense." Ake v. Oklahoma, 470 U.S. 68,
83 (1985). Additionally, if at capital sentencing the state
relies upon future dangerousness as an aggravating circumstance
and places psychiatric testimony before the jury on that issue,
"due process requires access to a psychiatric examination on
relevant issues, to the testimony of the psychiatrist, and to
assistance in preparation at the sentencing phase." Id., 470
U.S. at 34.0
“Lower courts have held that the testimony of a prosecution
psychiatrist on future dangerousness is not a necessary predicate
before the due process right to a competent and independent
defense expert arises. See Castro v. Okla! , 71 F.3d 1502,
1513 (10th Cir. 1995)("An expert must be appointed if the State
presents evidence, psychiatric or otherwise, of the defendant’s
(continued...)
29
Petitioner was entitled to a competent expert who would
perform competently. See Ake v. Oklahoma, 470 U.S. 68, a2
(1985) (defense entitled to a psychiatrist "to conduct a
professional examination on issues relevant to the
defense.") (emphasis added); see also Nobles v. Johnson, 1997 WL
668254 *10 (Sth Cir. 1997)("In assessing a due process claim
based on ineffective psychiatric assistance, a court must inquire
whether the defendant was provided access to a ‘competent
psychiatrist’ and whether that psychiatrist competently examined
the defendant and ‘assist{ed] in evaluation, preparation and
presentation of the defense.’ Ake, 470 U.S. at 83") (emphasis
added); Starr v. Lockh , 23 F.3d 1280, 1289 (8th Cir.
1994)("As Ake explains, due process requires access to an expert
who will conduct, not just any, but an appropriate
examination."); Ford v. Gaither, 953 F.2d 1296, 1299 (11th Cir.
1992)("Ake ... requires an appropriate psychiatric evaluation and
assistance in the evaluation, preparation, and presentation of
the defense.) (emphasis added); Cowley v. Stricklin, 929 F.2d
640, 643, 645 (11th cir. 1991)(Under Ake, "(w]e must ...
determine ... whether Cowley received competent psychiatric
4(,..continued)
future dangerousness or continuing threat to society during the
sentencing phase, and the indigent defendant establishes the
likelihood ‘his mental condition is a significant mitigating
factor."); Clisby v. Jones, 960 F.2d 925 (1ith Cir. 1992)("As
applied at the penalty phases of a capital case, Ake requires a
state to provide the capital defendant with such access to a
competent psychiatrist upon a preliminary showing to the trial
court that the defendant’s mental status is to be a significant
factor at sentencing.").
30
assistance for his defense. ... [T]he limited aid rendered by Dr.
McMillan was not a sufficient substitute for the provision of an
adequate defense psychiatrist."); Castro v. Oklahoma, 71 F.3d
1502, 1515 (10th Cir. 1995)("We believe a serious question
whether Dr. Hamilton was competent to provide expert assistance
exists. Dr. Hamilton’s specialties in child and geriatric
psychiatry probably rendered him unqualified to offer expert
opinion on many of the issues raised in a capital murder
trial.") (dicta) ,
B. This Court’s Precedent Requires that an
Evidentiary Hearing Be Conducted on
Petitioner’s Claim that He Was Denied the
Assistance Required Under Ake
Petitioner’s allegation, accepted as true because no fact-
finding has occurred with respect to them, is that his right to a
competent expert who performed competently was denied. His
expert did not perform in a competent manner. Specifically: a.)
the defense expert admitted in memoranda to his file (discovered
in post-conviction proceedings) that he did not have the
information necessary for a competent evaluation, and so he could
not diagnose the Petitioner; and b.) the defense expert
reviewed a radiologist’s report which recited that the
Petitioner’s brain was damaged and that the damage was relevant
to any diagnosis, but the defense expert incorrectly wrote that
the report ‘did not show anything relevant with respect to
Petitioner’s brain.
Petitioner also alleged, with supporting affidavits, that
the Petitioner’s brain indeed is damaged in significant and
31
forensically relevant ways, and that a competently performed
evaluation reveals that, according to the district court,
"because of neurological and psychiatric forces, Beavers was
impaired at the time of his offense and this impairment would
provide either a defense or powerful evidence in mitigation of
punishment." J.A. 366.
Put as simply as possible, a competent defense expert
performing competently would have noticed that Petitioner’s brain
was damaged from birth and that he suffered from several mental
illnesses and defects, all of which had substantial forensic
consequences. Petitioner contended in his petition that he was
ill-served by his expert and by his defense counsel, all of whom
failed to ensure that a competent and appropriate defense
evaluation occurred. These allegations, if true, require that
Petitioner be granted relief.% Because no evidentiary hearing
has ever been conducted upon these allegations, an evidentiary
PIn Starr v. Lockhart, 23 F.3d 1280, 1289 (8th Cir. 1994),
the Court acknowledged that similar allegations provided a
cognizable claim for relief:
The inadequacy of the examination is illustrated by the
testimony of the examining psychologist. The
psychologist testified that Starr was mildly retarded,
but was unable to explain to the jury the level of
Starr’s social and intellectual functioning because his
tests had not dealt with that. Nor was he able to
interpret or explain the results of previous mental
health tests, which assigned Starr the mental age of a
six or seven year old, because he was not familiar with
the. methodology of those tests. ... Thus, we find that
Starr was denied the appropriate examination to which
due process entitled him.
id. at 1290.
32
hearing is now required. See Townsend v. Sain, 372 U.S. 293,
313 (1963) (hearings are mandatory and no presumption of
correctness arises when "the merits of the factual dispute were
not resolved in the state [court] hearing.")
Cc. The Lower Court’s Ruling That This Ake Claim
Was Subject to A Procedural Default is
Inconsistent With This Court’s Precedent and
Removes a Class of Federal Constitutional
Violations from Any Review Whatsoever
Under Ake, Petitioner had a federal constitutional right to
an appropriate and competent defense mental health evaluation. .
The state court "default" ruling that an Ake claim like
Petitioner’s should have been raised on direct appeal, when
combined with the Fourth Circuit’s ruling that trial defense
counsel has no obligation (or even ability) to place in the trial
and direct appeal record any evidence that the Ake right was
violated, leaves Ake as a meaningless, unenforceable,
constitutional protection.
Ake is not an unenforceable mandate. Petitioner has claimed
"denial of constitutional rights ... on the basis of facts which
‘are dehors the record’ ([hence] ... not open to consideration
and review on [direct] appeal)." Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Cur. L.
REV. 142, 152 (1970) (quoting Waley v. Johnston, 316 U.S. 101,
104-05 (1942)). Habeas corpus hearings are intendéd, inter alia,
specifically to address claims which do not appear in the direct
appeal record. See Card v. Dugger, 911 F.2d 1494, 1519-20 (1lith
Cir. 1990) (trial court’s determination that petitioner was
33
competent to stand trial does not obviate need for hearing on
petitioner’s extra-record allegations that psychiatric
evaluations on which trial court relied were inadequate due to
experts’ "fail(ure] to conduct professionally adequate testing");
see also Blackledge v. Allison, 431 U.S. 63, 72-73 (1977)
(guilty plea induced by clandestine prosecutorial promises) ;
Beaulieu v. United States, 930 F.2d 805, 808 (10th Cir. 1991)
(hearing required to assess federal prisoner’s ineffective
assistance of counsel claim, which alleged that counsel failed to
prepare properly, and which accordingly relied on facts
necessarily outside trial record and record of post-trial
proceeding in trial court); United States v. Rodriquez-
Rodriguez, 929 F.2d 747, 750 (1st Cir. 1991) (hearing on
counsel’s conflict of interest required because issue depends on
matters outside record); Bouchillon v. Collins, 907 F.2d 589 (5th
Cir. 1990) (because state trial court did not hold hearing on
competence to stand trial, relying instead on statements of trial
counsel and trial judge’s own observations, evidentiary hearing
on issue is required); Hill v. Lockhart, 894 F.2d 1009, 1010 (8th
Cir.) (en banc), cert. denied, 497 U.S. 1011 (1990) (petitioner’s
allegation that he pled guilty based on erroneous parole
eligibility advice requires federal hearing); United States v.
Espinoza, 866 F.2d 1067, 1069-70 (9th Cir. 1988) (petitioner’s
allegation that he pled guilty based on attorney’s
representations about sentencing arrangement not thereafter
carried out requires federal hearing (citing cases)).
34
An enforceable procedural default occurs only when a state
court has invoked an adequate and independent state law basis for
not entertaining a federal constitutional challenge to a
judgment. While a state court may establish orderly procedures
for assessing federal constitutional claims, see Ford v. Georgia,
498 U.S. 411, 423 (1991), if the procedures amount to a total, de
facto refusal to entertain certain claims, then the state
procedure is not "adequate" to foreclose later, federal court,
review. See James v. Kentucky, 466 U.S. 341, 349 (1984)("As
Justice Holmes wrote [over] 60 years ago: ‘Whatever springs the
State may set for those who are endeavoring to assert rights that
the State confers, the assertion of federal rights, when plainly
and reasonably made, is not to be defeated under the name of
local practice.’") (quoting Davis v. Wechsler, 263 U.S. 22, 24
(1923)).2
The panel wrote the state court post-conviction holding that
Bsee also Ford v. Georgia, 498 U.S. 411, 423 (1991)(state’s
power to establish "local rules governing the timeliness of a
constitutional claim" and to render judgments based upon the
violation of those rules does not automatically trump federal
jurisdiction but instead is "subject to our standards for
assessing the adequacy of-independent state procedural grounds to
bar all consideration of claims under the national
Constitution"); Qsborne v. Ohio, 495 U.S. 103, 123-25
(1990) (acceptance of state’s waiver claim "would ‘force resort to
an arid ritual of meaningless form,’ ... and would further no
perceivable state interest." (citing and quoting James v.
Kentucky and Davis v. Wechsler, supra); Michel v. Louisiana, 350
U.S. 91, 93 (1955)(state rule "raised an insuperable barrier to"
vindication of federal rights); Williams v. Lockhart, 873 F.2d
1129, 1131-32 (8th Cir.), cert. denied, 493 U.S. 942 (1989) ("new
(state] rule designed to thwart the assertion of federal rights"
is not adequate, and its violation will not be allowed to defeat
federal jurisdiction).
35
Petitioner’s Ake claim had to be raised on direct appeal served
as a default that barred federal review of the claim. on
rehearing, petitioner again explained that the evidence of the
claim was not in the direct appeal record and so the claim could
not be raised on direct appeal.
In its order denying rehearing, the Fourth Circuit cited
James v. Kentucky, supra, but wrote that "Beavers admittedly knew
or should have known of the type of mental examination to which
he was subjected and of his court appointed expert’s
qualifications. obviously, this information wag available to
Beavers prior to trial." Order on rehearing, Attachment B,
hereto, p. 2. If this is taken literally, it is absurd--the
panel could not expect a brain-damaged defendant to know this
information, to put it in a record, and to formulate a claim
based upon it.
Indeed, the panel wrote that not even a non-brain-damaged,
educated, trained, experienced, lucid, competent defense attorney
had the ability or responsibility to know what their expert had
done. Slip opinion, at 7-8.
Petitioner’s claim is that his appointed expert could not
and did not perform competently. The evidence of this claim was
not in the direct appeal record,“ and Petitioner himself had no
i
“The direct appeal record did not contain a.) the
evidence from the expert’s (Gwaltney’s) file showing that he had
no information upon which to diagnose petitioner, see J.A. 39-42,
or b.) a report revealing that Petitioner had brain damage. Id.-
at 38.
36
way of knowing of the existence of this evidence.¥
Petitioner raised the claim at his first opportunity. If a
state court does not allow a claim to be raised at the first
opportunity that a petitioner has to raise it, then any purported
default is excused. The constitutional claim would, as a
practicable matter, be "unavailable" to the petitioner. Thus,
there would be an "’external impediment’" — something external
to the petitioner — impeding him from raising the claim, and the
claim could be raised in federal court notwithstanding the
: supposed state court bar. ole v. Thom , 501 U.S. 722, 753
(1991).
D. Given the Lower Court’s Ruling that Defense
Counsel Cannot Be Expected to Understand or
Monitor What a Defense Expert Does, the Ake
Right Cannot be Enforced under the Rubric of
Effective Assistance of Counsel
If the Ake claim can be defaulted, cause for the default can
be established by showing that counsel’s actions violated the
Sixth Amendment. Coleman v. Thompson, 501 U.S. 722 (1991).
Unreasonable omissions by counsel which prejudice the defendant
violate the Sixth Amendment and, if the ineffectiveness involves
the attorney’s failure to protect a defendant’s Ake rights, then
UMurray v. Carrier, 477 U.S. at 488 (cause is present if
"factual ... basis for a claim was not reasonably available to
counsel"); Reed v. Ross, 468 U.S. at 14 ("reasonably unknown"
facts); Price v. Johnston, 334 U.S. 266, 291 (1948) (petitioner
was "unaware of the significance of relevant facts"); United
States-ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1314 (7th Cir.
1986), cert. denied, 481 U.S. 1041 (1987) (petitioner’s default
under state law of conflict of interest claim was invalid as
matter of federal law because "he could not waive that of which
he had no knowledge").
37
cause for the state court default is established and a federal
court must address the merits of an Ake clain.
If Petitioner’s right to the protections afforded by Ake
depends upon whether the defendant raises the Ake issue on direct
appeal, then reasonably competent counsel must produce the record
which will allow the claim to be raised and preserved. The lower
court’s opinion, however, relieves trial and appellate counsel of
this duty. Slip opinion, p. 8.¥%
The Ake right must be protected somehow. A defendant must
either be allowed to raise it when counsel has failed to, or must
be allowed to challenge counsel’s ineffectiveness for not raising
it. The lower court opinion prohibits both challenges. The
result is that there is no Ake right in Virginia--there is no
remedy for its violation.
‘The lower court held:
{a]ttorneys need not be mental health experts or
medical doctors, and they are not held to a standard of
competence requiring them to be. Pursuant to defense
counsel’s request .... Dr. Henry O. Gwaltney, Jr., a
forensic clinical psychologist was appointed. ..
Beavers’ attorneys did not perform unprofessionally in
relying on his court-appointed mental health expert.
Slip opinion, p. 8.
38
Ir.
FROM THIS COURT’S GRANT OF CERTIORARI IN HOHN
TE TES, NO. 96-8986, THERE ARISES
THE FOLLOWING ISSUE IN PETITIONER’S CASE:
IN LIGHT OF THE FACT THAT THE COURT
OF APPEALS DENIED THE PETITIONER’S
REQUEST FOR A CERTIFICATE OF
APPEALABILITY, DOES THIS COURT HAVE
JURISDICTION TO ENTERTAIN THIS
PETITION FOR WRIT OF CERTIORARI?
In Hohn v. United States, No. 96-8986, this Court granted
certiorari to determine the following:
In light of the fact that the Court of
Appeals denied the petitioner’s request for a
Certificate of Appealability, does this Court
have jurisdiction to grant certiorari,
vacate, and remand this case per the
suggestion of the Acting Solicitor General?
The petitioner in Hohn is a federal inmate proceeding under 28
U.S.C. Section 2255; petitioner is proceeding pursuant to 28
U.S.C. Section 2254.
Mr. Hohn’s Section 2255 action was filed before the
effective date of the Anti-terrorism And Effective Death Penalty
Act of 1996 (AEDPA); Mr. Beavers’ Section 2254 action was also
filed before the effective date of the AEDPA.
Mr. Hohn was denied a certificate of appealability; Mr.
Beavers’ was denied a certificate of appealability.”
"Respondent has contended throughout these proceedings that
the AEDPA, ‘with its certificate of appealability requirements,
applies to this case. The district court applied the AEDPA. The
Fourth Circuit denied Petitioner the right to appeal because of
its view that Petitioner had not satisfied the substantive
standard for a certificate of appealability under the AEDPA,
which was the same standard as for a certificate of probable
cause to appeal under pre-Act law. See Argument III, infra.
39
It would appear that the Court’s decision in Mr. Hohn’s case
will have a substantial impact on whether Mr. Beavers is entitled
to review. See Davis v. Jacobs, 454 U.S. 911 (1981).
Accordingly, Petitioner requests that his petition for writ of
certiorari be granted.
Tir.
THE LOWER COURT’S REFUSAL TO GRANT PETITIONER
PERMISSION TO APPEAL FROM THE DENIAL OF
HABEAS CORPUS RELIEF IS INCONSISTENT WITH
THIS COURT’S DECISION IN BAREFOOT V. ESTELLE,
463 U.S. 880 (1983)
Before a petitioner can receive circuit court review via a
full appeal from the denial of relief under either section 2254
or section 2255, the Petitioner must make a substantial showing
of the denial of a federal right. In Barefoot, this Court
"caution({ed] that the issuance of a certificate of probable cause
generally should indicate that an appeal is not legally
frivolous, and that a court of appeals should be confident that
petitioner’s claim is squarely foreclosed by statute, rule, or
authoritative court decision, or is lacking any factual basis in
the record of the case, before dismissing it as frivolous."
Barefoot, 463 U.S. at 894.
Under this standard, the decision by the lower court was
error. It cannot be said that Petitioner’s claims for relief
presented in this petition are frivolous or are not debatable
among reqecuskile jurists.
The panel denied permission to appeal and dismissed the
appeal because in the view of the panel Petitioner was not
40
entitled to relief:
We conclude that the district court correctly
‘held that Beavers was not entitled to habeas
relief. Accordingly, we deny Beavers’
application for a certificate of probable
cause to appeal and dismiss the petition.
Slip opinion, at 2-3. This is not the appropriate standard. A
certificate of probable cause must be granted whenever a
petitioner has made "a substantial showing of the denial of [a]
federal right." Barefoot v. Estelle, 463 U.S. 880, 883 (1983).
"/(O]bviously the Petitioner need not show that he should prevail
on the merits. He already has failed in that endeavor.’" Id. at
893 n 4. Rather, a Petitioner need only show that any one of his
or her claims is "debatable among jurists of reason," or is
"(not] lacking any factual basis in the record." Id. (emphasis
added).
On rehearing, Petitioner suggested that the lower court had
applied an incorrect standard for the issuance of a certificate
of probable cause to appeal. The court responded by writing that
“"Beavers’ assertion is utterly frivolous. The final paragraph of
the decision of this court, where we addressed Beavers’ motion
for certificate of probable cause to appeal, states that Beavers
‘failed to make the substantial showing of the denial of a
constitutional right necessary for the grant’ of a certificate of
probable cause to appeal.’" Order on Rehearing, p. 3.
Tf£ the lower court in fact did apply the correct Barefoot
test, the court applied it incorrectly. Petitioner contends that
the facts of this case satisfy Barefoot, and that the lower
41
court’s application of Barefoot presents dangerous and troubling
issues.
Death sentenced inmates in Virginia never receive relief
from the Virginia Supreme Court during habeas corpus proceedings.
The United States Court of Appeals for the Fourth Circuit is
almost as tight-fisted when it comes to addressing state court
violations of the federal constitution.*
even when the federal district courts in Virginia award
relief, the Fourth Circuit takes the relief away. The following
is a list of death penalty cases in which the district courts of
Virginia granted relief but the Fourth Circuit reversed the grant
of relief and re-instituted the judgment and death sentence:
A. Barnes v. Thompson, Civil Action No. 3:92CV90
(E.D..Va. 1994)(Spencer, J.)(unreported order),
rev'd, 58 F.3d 971 (4th Cir. 1995) (Luttig and
Williams, majority; Murnaghan, concurring)
B. Boggs v. Bair, 695 F. Supp - 864 & D. Va.
1988) (Williams, J.), rev’d, 892 F.2d 1193 (4th
Cir. 1989)(Widener, Sprouse, and Dupree
(E.D.N.C.))
c. Correll v. Thompson, 872 F. Supp. 282 (W.D. Va.
1994)(Turk, J.), rev’d, 63 F.3d 1279 (4th Cir.
1995) (Wilkins, Wilkinson, and Phillips)
D. Edmonds v. Thompson, No. CA-89-727-12 (W.D.
Va.) (Turk, J.) (unreported order), rev’d, 17 F.3d
1433 (4th Cir. 1994) (unpublished)
E. Gray_v. Netherland, Civil Action No. 3:91CV693
(E.D. Va. 1994)(Spencer, J.)(unreported order),
rev'd sub nom, Gray v. Tho on, 58 F.3d 59 (4th
Cir. 1995)(Wilkinson and Wilkins, majority; Hall
concurring), remanded, Stay Z,Netherland, 116 Ss.
Ct. 2074 (1996), relief denied on remand, 99 F.3d
158 (4th Cir. 1996).
F. Hoke v. Thompson, 852 F. Supp. 1310 (E.D. Va.
1995) (Merhige, J.)(initially denying the petition
but then granting relief after motion to alter or
amend judgement), rev’d sub nom Hoke v.
(continued...)
42
The treatment of Petitioner’s case is consistent with, but
even worse than, this pattern. Here, we have a case in which the
circuit court did not grant a certificate of probable cause to
appeal and did not even publish the result. Petitioner contends
that he has presented substantial federal constitutional issues.
No state or federal court has seriously addressed them, and now
Petitioner faces the specter of not receiving Supreme Court
review. See Argument II, supra.
Under such circumstances it was critically important that
8(.. continued)
Netherland, 92 F.3d 1350 (4th Cir. 1996) (Luttig
and Russell; Hall, dissenting)
Gc. Q’Dell_ v. Thompson, No. CL89-1475 (E. a Va. Sept.
6, 1994)(Spencer, J.), rev'd sub nom O’Dell v.
Netherland, 95 F.3d 1216 (4th Cir. 1996)(en banc
by 7-6 vote) .
H. Satcher v. Netherland, 944 F. Supp. 1222 (E.D. Va.
1996)(Payne, J.), rev'd sub nom Satcher v. Pruett,
126 F.3d 561, Nos. 96-22, 23 (4th Cir. Sept. 18,
1997) (Michael, Widener, and Williams) .
I. Stout v. Thompson, CA-91-719-R (W.D. Va.) (Turk,
J.), rev'd, 95 F.3d 42 (4th Cir. Sept. 3,
1996) (unpublished) (Wilkinson, Hamilton, and
Williams)
gd. Tuggle v. Thompson, 854 F. Supp. 1229 (W.D. Va.
1994) (Turk, J.), rev'd, 57 F.3d 1356 (4th Cir.
1995)(Chapman, Widener, and Hamilton)
K. Pope _v. Netherland, CA-91-591-3 (E.D. Va.
1996) (Merhige, J.)(unpublished order), rev’d 113
F.3d 1364 (4th Cir. 1997) (Butzner, Wilkinson, and
Hall)
L. Clanton v. Bair, 638 F. Supp. 1090 (E.D. Va.
1986) (Merhige, J.), rev'd 826 F.2d 1354 (4th Cir.
1987) (Haynsworth, Hall, and Wilkinson).
43
the Circuit Court have applied Barefoot correctly. Because the
Circuit Court failed to do soa, certiorari ought to be granted.
CONCLUSION
For the foregoing reasons, Petitioner requests that this
Court grant this petition for writ of certiorari.
Respectfully submitted:
Mark Evan Olive
Attorney at Law
2014 Lee Avenue
Tallahassee, FL 32312
(904) 531-0119
Counsel of Record for Petitioner
December 4, 1997
44
ATTACHMENT A
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Tuomas H. Beavers, Jr., :
Peritioner-Appellant,
he r No. 97-4
Samcex V. Prvett,. Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.
Appeal from the United States: District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-837-3)
Argued: July 10, 1997
Decided: September 23, 1997
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Luttig and Judge. Williams joined.
COUNSEL
ARGUED: Mark Evan Olive, Tallahassee, Florida, for Appellant.
Katherine P. Baldwin, Assistant Attomey General, OFFICE OF THE
ATTORNEY GENERAL. Richmond, Virginia, for Appellee. ON
BRIEF: Michele J. Brace, VIRGINIA CAPITAL REPRESENTA-
TION RESOURCE CENTER, INC., Richmond, Virginia, for Appel-
lant. James S. Gilmore, MI, Attomey General of Virginia, OFFICE
2 7 Beavers v. PRcetr
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c). :
OPINION
WILKINS, Circuit Judge:
Thomas H. Beavers, Jr. appeals an order of the district court dis-
missing his petition for a writ of habeas corpus,’ which challenged his
Virginia conviction for capital murder and resulting death sentence.
See 28 U.S.C.A. § 2254 (West 1994).? We conclude that the district
"Beavers named J. D. Netherland, former Warden of the Mecklenburg
. Correctional Center where Beavers is incarcerated. as Respondent in his
petition. Subsequently, Samuel V. Pruett succeeded Netherland as War-«
den at that institution. For ease of reference, we refer to Respondent as
“the Commonwealth" throughout this opinion.
"Because Beavers’ petition for a writ of habeas corpus was filed on
October 11, 1995, prior to the April 24, 1996 enactment of the Antiterro-
rism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No.
104-132, 110 Stat. 1214, amendments to chapter 153 of Title 28 effected
by the AEDPA do not govern our resolution of this appeal. See Lindh v.
Murphy, 117 S. Ct. 2059, 2067 (1997). We have not yet decided whether
the provisions contained in § 107 of the AEDPA apply to Beavers, who
filed his state-habeas petition on April 18, 1994. See Bennett v. Angelone,
92 F.3d 1336, 1342 (4th Cir.) (declining to decide whether the proce-
dures established by the Commonwealth for the appointment, compensa-
tion, and payment of reasonable litigation expenses of competent counsel
satisfy the statutory opt-in requirements of § 107. which would render
those provisions applicable to indigent Virginia prisoners seeking federal
habeas relief from capital sentences if an initial state habeas petition was
filed after July 1, 1992), cert. denied, 117 S. Ct. 503 (1996). However,
we need not address this issue because we conclude that habeas relief is
inappropriate under the more lenient standards in effect prior to the
recent amendments. See O'Dell v. Netherland, 95 F.3d 1214, 1255 2.36
(4th Cir. 1996) (en banc), afd. 117 S. Ct. 1969 (1997).
Beavers v. Prverr 3
court correctly held that Beavers was not entitled to habeas relief.
Accordingly, we deny Beavers’ application for a certificate of proba-
bie cause to appeal and dismiss this appeal.
L
On the night of May 1, 1990, Beavers broke into the home of Mar-
guerite Lowery, a 60-year-old widow, and murdered her by suffocat-
ing her with a pillow while raping her. Beavers subsequently was
convicted of capital murder and sentenced to death on the basis that
he posed "a continuing serious threat to society."* Va. Code Ann.
§ 19.2-264.2 (Michie 1995). The Supreme Court of Virginia affirmed
on direct appeal, and the United States Supreme Court denied certio- .
rari. See Beavers y. Commonwealth, 427 S.E.2d 411 (Va), cert.
denied, 510 U.S. 859 (1993). Thereafter, a state habeas court denied _
Beavers postconviction relief without conducting an evidentiary hear-
ing, reasoning that Beavers’ allegations of constitutionally ineffective
assistance of counsel lacked merit and that his remaining claims were
barred by Hawks v. Cox, 175 S.E.2d 271, 274 (Va. 1970) (precluding,
absent changed circumstances, consideration in state habeas proceed-
ings of claims considered on their merits during direct review), or
were defaulted under Slayton v. Parrigan, 205 SE 2d 680, 682 (Va.
1974) (holding that issues not properly raised on direct appeal will not
be considered on state collateral postconviction review). The Supreme
Court of Virginia denied review.
Beavers then filed this action raising a plethora of issues. Without
conducting an evidentiary hearing, the district court denied habeas
relief and dismissed his petition. With respect to those issues that
Beavers presses on appeal, the~-district court held federal habeas - .
review to be foreclosed as to four of them because they were proce-
durally defaulted. Beavers’ defaulted claims are as follows: re) his
appointed mental health expert was constitutionally ineffective in vio-
lation of the Eighth and Fourteenth Amendments; (2) the refusal of
the state trial court to permit one of his trial attorneys to withdraw
from representation violated the Sixth, Eighth, and Fourteenth
*Beavers was also convicted of rape, grand larceny. and arson, and was
sentenced separately on these counts to life. ten years, and eight years
respectively.
4 : Beavers v. PRcerr
Amendments; (3) the refusal of the state trial court to remove for
cause a prospective juror who stated during voir dire that she would
impose the death penalty if the jury returned a capital conviction vio-
lated the Eighth and Fourteenth Amendments; and (4) the failure of
the state trial court to guide adequately the discretion of the jurors in
considering the mitigating evidence violated the Sixth, Eighth, and
Fourteenth Amendments. The district court mled that the three
remaining claims that Beavers presents—that (1) trial counsel was
constitutionally ineffective under the Sixth Amendment with respect
to the handling of issues relating to Beavers’ mental health and in the
investigation and presentation of mitigating evidence; (2) the trial
court violated the Eighth and Fourteenth Amendments by refusing to
grant a mistrial; and (3) the trial court denied Beavers protections
guaranteed by the Eighth and Fourteenth Amendments by refusing
during voir dire to question prospective jurors conceming whether .
they would automatically impose the death penalty—lacked merit.
IL
Absent cause and Prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). The Supreme Court of Virginia expressly relied on the
procedural default rule set forth in Slayton in refusing to consider
Beavers’ claims that his court-appointed mental health expert was
constitutionally ineffective; that the trial court erred in refusing to per-
mit one of his attorneys to withdraw; that the trial court erred in quali-
fying a juror who stated that she would impose the death penalty if
the jury retuned a capital murder conviction; and that the instructions
failed to guide adequately the discretion of the jury in considering the
mitigating evidence. Thus, we may not consider these claims on their
merits,* see Smith y. Murray, 477 U.S. 527, 533 (1986); Bennett v.
“Beavers maintains that his claim relating to the adequacy of the
instructions to guide the discretion of the jury in considering the mitigat-
ing evidence is not procedurally defaulted. He asserts that he raised that
claim in his petition for appeal to the Supreme Court of Virginia from
the denial of state postconviction relict The referenced portion of the
petition states:
Beavers v. PRUETT 5
Angelone, 92 F.3d 1336, 1343 (4th Cir.), cert. denied, 117 S. Ct. 503
(1996), unless Beavers can demonstrate that cause and prejudice exist
to excuse the default or that the failure of the court to consider the
claim would amount to a fundamental miscarriage of justice, see
Coleman y. Thompson, 501 U.S. 722, 750 (1991).
Trial counsel failed to request any mitigating instructions at the
sentencing phase of Beavers’ capital murder trial... Trial coun-
sels failure to request. and the trial court’s failure to give. these
instructions prejudiced Beavers because the jury may have
imposed the death penalty on an improper. inadequate. or arbi-
trary basis.
Appellant’s Pet. for Appeal at 52, Beavers v. Netherland, No. 950146
(Va, Apr. 24, 1995). And. he contends. the Supreme Court of Virginia
denied relief on this claim on thé basis “thar the ineffective assistance -—
claims raised were without merit.
The claim Beavers presented to the Supreme Court of Virginia. how-
ever. was one of ineffective assistance of counsel The petition omitted.
reference to any other constitutional right to additional instruction con-
cerning the mitigating evidence and failed to provide any argument con-
ceming why the referenced instructions were constitutionally required.
Thus. Beavers failed to properly exhaust this claim. See Duncan v.
Henry. 513 U.S. 364, 366 (1995) (per curiam): Matthews v. Evatt. 105
F.3d 907. 911 (4th Cir. 1997) (explaining that in order for federal claim
to be exhausted. the substance of the federal right must be presented to
the highest state court). petition for cert. filed. ___ U.S.L.W. ___. (U.S.
May 27. 1997) (No. 96-9163): Mallory v. Smith, 27 F.3d 991. 994 (4th
Cir. 1994) (noting that exhaustion requires that petitioner do more than
apprise state court of the facts; he must "explain how those alleged facts
establish a violation of his constitutional rights"); id. at 995 (explaining-—
that exhaustion requires "more than scatter{ing] some makeshift needles
in the haystack of the state court record" (internal quotation marks omit-
ted)). Because presentation to the state court at this juncture would be
fruitless. the claim is properly considered to be procedurally barred. See
George v. Angelone. 100 F.3d 353. 363 (4th Cir. 1996) ("A claim that
has not been presented to the highest state court nevertheless may be
treated as exhausted if it is clear that the claim would be procedurally
defaulted. under state law if the petitioner attempted to raise it at this
juncture."), cert. denied. 117 S. Ct. 854 (1997). Therefore. we hold this
claim to be procedurally defaulted.
6 . Beavers Vv. PRUETT
Beavers does not assert that cause and prejudice exist to excuse the
default. See Teague v. Lane, 489 U.S. 288, 298 (1989) (possible cause
and prejudice not considered when petitioner fails to argue that any
exist); Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995)
(same), cert. denied, 116 S. Ct. 688 (1996). But, he maintains that the
failure to consider his claims would amount to a miscarriage of justice
because the evidence he proffered to the district court concerning his
organic brain disorder and brain tumor demonstrate his actual inno-
cence.
It is undisputed, however, that Beavers actually murdered Lowery,
and the additional evidence to which Beavers points does not demon-
strate that he was not criminally responsible for his.conduct. Thus,
Beavers has not demonstrated that a constitutional error probably
Tesulted in the conviction of one who is actually factually innocent. .
See Schlup y. Delo, 513 U.S. 298, 323-27 (1995). Further, Beavers
has not presented "*clear and convincing evidence that but for a con-
stitutional error, no reasonable juror would have found the petitioner
eligible for the death penalty,’" and thus he has not demonstrated that
he is "‘actually innocent of the death penalty.’ d. at 323 (emphasis
omitted) (quoting Sawyer v Whitley, 505 U.S. 333, 336 (1992). Con-
sequently, Beavers has not established a fundamental miscarriage of
justice to excuse his default of these claims.
i.
The first of Beavers’ undefaulted claims is his argument that his
trial counsel was constitutionally ineffective. In order to be entitled
to relief on this claim, Beavers bears the burden of demonstrating that
his attorneys’ "representation fell below an objective standard of rea-
sonableness" and "that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would
have been different." Strickland vy. Washington, 466°U.S. 668, 688,
694 (1984). In assessing counsels’ performance, we bear in mind that
our review is “highly deferential." Id. at 689. Indeed, we afford a
Strong presumption that counsel’s performance was within the
extremely wide range of professionally competent assistance. See id.
And, to eliminate the deceptive effects of hindsight on our consider-
ation, we look to "the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s
Beavers v. PRUETT T
conduct." /d. at 690. Moreover, even those instances in which coun-
sel’s conduct fell below an objective standard of reasonableness gen-
erally will not justify setting aside a conviction unless the error
affected the outcome of the proceeding. See id, at 691-92. Therefore,
deficiencies in Beavers’ attorneys’ conduct would warrant reversal
only if he convinces us that in the absence of unprofessional errors
by his attomeys there is a reasonable probability—ie., one adequate
to undermine our confidence in the result—that "the result of the pro-
ceeding would have been different." See id. at 694. We review de
novo Beavers’ claim that counsel was ineffective. See id. at 698.
Beavers maintains that the performance of his trial counsel fell
below an objective standard of reasonableness in two areas—the han-
dling of issues relating to Beavers’ mental health and the investigation
and presentation of mitigating evidence._More specifically, Beavers
asserts that counsel failed: (1) to communicate effectively with his
mental health expert; (2) to ensure that he obtained a psychiatric eval-
uation on an in-patient basis; (3) to obtain a full social and clinical
history for use by his court-appointed mental health expert; and (4)
to present the testimony of mitigation witmmesses during the sentencing
phase of trial, including family and friends who could have testified
about Beavers’ upbringing by a schizophrenic mother.
With respect to counsel’s handling of the mental health issues,
Beavers maintains that the district court erred in denying this claim
based on our repeated admonitions that counsel is not obligated to
"shop around" to find an expert that will provide a different or better
expert opinion. Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.
1992); Roach v. Martin, 757 F.2d 1. 1463, 1477 (4th Cir. 1985). Beavers
contends that this is not the basis for his claim and that his argument,
instead, "is that he was entitled to. one, competently arrived at, opin-
,ion, which he did not receive." Initial Brief of Appellant at 48. This
‘argument, however, only serves to highlight the deficiency in Bea-
vers’ position.
Attorneys need not be mental health experts or medical doctors,
and they are not held to a standard of competence requiring them to
be. See Pruett vy. Thompson, 996 F.2d 1560, 1574 (4th Cir. 1993).
Pursuant to defense counsel’s request that Beavers be examined by a
mental health expert, Dr. Henry O. Gwalmey, Jr., a forensic clinical
8 Beavers v. PRueTT
psychologist, was appointed. Dr. Gwaltney’s subsequent opinion pro-
vided Beavers’ attorneys with little support for an insanity defense or
evidence in mitigation. Beavers does not assert that counsel was
informed by Dr. Gwaltney or others that more information concerning
Beavers’ social.and medical history, further testing, or additional
expert assistance was required in order for Dr. Gwaltney to properly
evaluate Beavers. And, Dr. Gwaltney’s opinion was consistent with
that of two psychiatrists who had evaluated Beavers to.determine his
mental state at the time of the murder. In short, Beavers’ attorneys did
not perform unprofessionally in relying on his court-appointed mental
health expert. See Jones y. Murray, 947 F.2d 1106, 1112-13 (4th Cir.
1991) (rejecting argument that counsel was ineffective for relying on
_ the psychological assessment of Dr. Gwaltney).
With regard to Beavers’ claim that counsel should have engaged in
further investigation to discover additional mitigating evidence from
his past, we again conclude that counsel’s performance was not pro-
fessionally deficient. Beavers does not dispute that trial counsel con-
tacted a number of Beavers’ family members, including his wife, his
mother and father, and his uncle in an effort to obtain mitigating
background evidence. Nor does he dispute that it was the professional
judgment of his attorneys that the testimony of these witnesses poten-
tially would have been more damaging than beneficial because of
aggravating information they possessed that counsel did not wish to
tisk disclosing. Beavers does not attack this strategic decision on the
part of counsel, but rather proffers affidavits from family members,
neighbors, and former coworkers who indicate that Beavers’ mother
was schizophrenic and that her bizarre conduct had an extremely —
adverse effect on her child-rearing skills and that, as a result, Beavers“ ~
was subjected to a very difficult and abusive childhood.
_ Although "counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary," Strickland, 466 U.S. at 691, counsel is not constitution-
ally required to interview every family member, neighbor, and
coworker in the search for constitutionally mitigating evidence.
Because Beavers’ trial counsel conducted a reasonable investigation
for mitigating evidence with Beavers’ closest family members and
found nothing that, in the professional judgment of the attorneys,
Beavers v. Pruerr ; ot 9
could be employed in Beavers’ defense, we conclude that counsel did
not perform unprofessionally in failing to investigate further.
Moreover, even if Beavers had overcome the presumption that |
counsel’s performance was within the broad range of professionally
acceptable conduct, we are not convinced that he would have satisfied
the prejudice prong of Strickland. The mental health evidence that
Beavers argues would have been obtained if counsel had performed
competently does not undermine our confidence in the verdict at the
guilt phase of his trial. And, although "evidence of a defendant’s men-
tal impairment may diminish his blameworthiness for his crime," it
also may "indicate{ ] that there is a probability that he will be danger-
ous in the future." Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir.
1995) (internal quotation marks omitted), Thus, this evidence is a__
two-edged sword, and "the sentencing authority could weil have
- found in the mitigating evidence of mental illness or history of abuse,
sufficient evidence to support a finding of future dangerousness." Id.
at 981. In sum, Beavers was not deprived of constitutionally adequate
assistance of counsel.*
Iv.
Beavers next contends that the state trial court violated the Eighth
and Fourteenth Amendments by refusing to grant a mistrial after it
struck a witess’ testimony. During Beavers’ trial, a state law
enforcement officer, Deputy Lam, testified. At the beginning of his
testimony, the Commonwealth presented him with a document to
refresh his memory. Beavers objected to Deputy Lam reading from
the document in answering two questions-and sought a mistrial. Dep-
uty Lam then testified that Beavers had told him that ‘he had no
"Beavers also argues that he was entitled to an evidentiary hearing in
district court to develop the facts underlying his ineffective assistance of
counsel] claim and his ineffective assistance of court-appointed mental -
health expert claim. We review a decision of a district court denying an
evidentiary hearing for an abuse of discretion. See Pruett, 996 F.2d at
1577. We conclude that the district court did not abuse its discretion
because Beavers did not demonstrate that the additional facts he alleges,
if true, would entitle him to relief. See, e.2, Beaver v. Thompson, 93 F.3d
1186, 1190 (4th Cir.), cert. denied, 117 S. Ct. 553 (1996).
10 Beavers v. Pruetr
other choice but to do what he had done because [Mrs. Lowery] could
identify him." Beavers, 427 S.E.2d at 419 (alteration in original).
Deputy Lam subsequently equivocated regarding the accuracy of his
memory of portions of the statement, and when Beavers once again
objected, the trial court sustained the objection and ordered the jury
to disregard the officer’s testimony in its entirety. On direct appeal,
the Supreme Court of Virginia held that the trial court had not erred
in refusing to grant a mistrial rather than give a cautionary instruction.
See id. Beavers now asserts that the instruction given by the trial court
was insufficient to cure the prejudice caused by Deputy Lam’s state-
ment and that the failure of the trial court to grant a mistrial created
an impermissible risk that Beavers’ conviction and sentence were the
product of passion, prejudice, and arbitrary factors.
We disagree. Even if we were to conclude that Beavers is correct
that the failure to grant a mistrial under these circumstances was an
error of constitutional dimension, relief would not be appropriate.
Beavers points to no clearly established rule of constitutional law in
existence in October 1993, when his conviction became final, that
would have compelled a state court to reverse his conviction; hence
this argument is barred by the new rule doctrine set forth in Teague
v. Lane, 489 U.S. 288 (1989). See O'Dell v. Netherland, 117 S. Ct.
1969, 1973 (1997). Accordingly, this argument does not provide a
basis for relief.
Vv.
Finally, Beavers contends that the state trial court deprived him of
the guarantees of the Eighth and Fourteenth Amendments by refusing
to ask prospective jurors during voir dire, "Do you believé that if one
is convicted of taking another’s life, the proper penalty is loss of your
‘ own life?" Initial Brief of Appellant at 59. Again, we disagree.
"ET ]he requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment," Prohibits "[a] juror who will
automatically vote for the death penalty in every case" from sitting on
a capital jury. Morgan v. Illinois, 504 U.S. 719, 729 (1992). A corol-
lary of the right to an impartial jury is the requirement of a voir dire
sufficient to permit identification of unqualified jurors because with-
out an adequate voir dire, a trial judge will not be able to remove
Beavers v. Pruett ms!
unqualified jurors and the defendant will not be able to exercise chal-
lenges for cause. See id. at 729-30. Thus, a capital defendant must be
allowed on voir dire to ascertain whether prospective jurors are unal-
terably in favor of the death penalty in every case, regardless of the
circumstances, rendering them unabie to perform their duties in accor-
dance with the law. See id. at 735-36. Questions directed simply to
ene a pe Be fair, or follow the law, are insufficient. See id.
at 734-36. :
Although it declined to ask Beavers’ proposed question, the state
trial judge asked prospective jurors,."*[I]f the jury should convict the
defendant of capital murder, would you be able to consider voting for
a sentence less than death?’" Beavers, 427 S.E.2d at 418. This ques-
tion is adequate to identify those who would automatically vote for
the death penalty. Thus, Beavers’ argument lacks merit.
VL
In sum, we conclude that Beavers procedurally defaulted his claims
that (1) his appointed mental health expert was constitutionally inef-
fective in violation of the Eighth and Fourteenth Amendments; (2) the
refusal of the state trial court to permit one of his trial attorneys to
withdraw from representation violated the Sixth, Eighth, and Four-
teenth Amendments; (3) the refusal of the state trial court to remove
for cause a prospective juror who stated during voir dire that she
would impose the death penalty if the jury retumed a capital convic-
tion violated the Eighth and Fourteenth Amendments; and (4) the
State trial court failed to guide adequately the discretion of the jurors
in considering the mitigating evidence in violation of the Sixth,
Eighth, and Fourteenth Amendments. And, Beavers’ remaining -
claims lack merit. .
Prior to the decision of the Supreme Court in-Lindh v. Murphy, 117
S. Ct. 2059 (1997), Beavers sought a certificate of appealability in
this court pursuant to 28 U.S.C.A. § 2253(c)(1) (West Supp. 1997)
(providing in pertinent part that "[uJnless a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the
court of appeals from ... the final order in a habeas corpus proceeding
in which the detention complained of arises out of process issued by
a State court"). Following the Lindh decision, see Lindh, 117 S. Ct
12 Beavers v. PruEtr
at 2067 (conciuding that generally the amendments to chapter 153 of
Title 28 do not apply to petitions, like Beavers’, filed prior to the
effective date of the AEDPA), Beavers sought a certificate of proba-
bie cause to appeal from the district court. The district court denied
the certificate, reasoning that Beavers had not made a substantial
showing of denial of a constitutional right. Beavers subsequently peti-
tioned this court for a certificate of probable cause to appeal.
We need not decide whether, strictly speaking, Beavers was correct
in seeking a certificate of appealability under amended § 2253 or a
certificate of probable cause to appeal because he has failed to make
the substantial showing of the denial of a constitutional right neces-
sary for the grant of either. See Lozada v. Deeds, 498 U.S. 430, 431-
_ 32 (1991) (per curiam) (explaining that to warrant the grant of a cer-
tificate of probable cause to appeal, a habéas petitioner must "Make
a substantial showing of the denial of [a] federal right" and that to sat-
isfy this showing, the petitioner "must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate to
deserve encouragement to proceed further" (intemal quotation marks
& emphasis omitted; alterations in original)); Murphy v. Netheriand,
116 F.3d 97, 101 (4th Cir. 1997) (denying certificate of appealability
under § 2253 in habeas corpus action seeking relief from death sen-
tence where petitioner failed to make a substantial showing of the
denial of a constitutional right). Accordingly, we dismiss Beavers’
appeal. .
DISMISSED
ATTACHMENT B
FILED: November 4, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-4
THOMAS H. BEAVERS, JR.,
Petitioner - Appellant,
versus
SAMUEL V. PRUETT, Warden, Mecklenburg
Correctional Center,
Respondent - Appellee.
ORDER
Beavers filed a petition for rehearing with suggestion
for rehearing en banc and a motion to supplement the record on
appeal.
i
_.In_support of his petition for rehearing and suggestion
for en banc consideration, Beavers argues that we erred in holding
that federal review of his claim under Ake v. Oklahoma, 470 U.S. 68
(1985)--that his court*appeinted expert was incompetent -~was
procedurally defaulted. He contends that he could not have raised
his Ake claim before the state trial court or on direct appeal
because he could not have known that his court-appointed expert
lacked the information from a more complete mental health
evaluation and the medical degree necessary to have performed
competently. And, he continues, since he could not have raised his
‘Ake claim before his state post-conviction proceedings, the
procedural bar relied upon by the Supreme Court of Virginia is not
adequate to foreclose federal habeas review. See James v.
Kentucky, 466 U.S. 341, 348-49 (1984). We disagree.
Beavers admittedly knew or should have known of the type
of mental examination to which he was subjected and of his court-
appointed expert's qualifications. Obviously, this information was
available to Beavers prior to trial. Indeed, Beavers recognized as
much in his alternative argument that his trial attorney was
constitutionally ineffective for not having a more complete
evaluation performed and in failing to ensure that an expert with
a medical degree examined him. Consequently, Beavers cannot be
heard to complain that he could not have raised his Ake claim
before the state trial court or on direct appeal.
Beavers also claims that this court applied an incorrect
standard in denying him a certificate of probable cause to appeal,
relying on language taken from the introductory paragraph of the
opinion. Beavers asserts that "[a] certificate of probable cause
must be granted whenever a petitioner has made a “substantial
showing of the denial of [a] federal right[,]' Barefoot v. Estelle,
463 U.S. 880, 883 (1983) " and accordingly that we should have
applied this standard in ruling on the appropriateness of a
certificate of probable cause to appeal. Beavers' Pet. for Reh'g,
Sugg. for Reh'g En Banc at 13. Beavers' assertion that this court
applied an incorrect standard is utterly frivolous. The final
paragraph of the decision of this court, where we addressed
Beavers' motion for certificate of probable cause to appeal, states
that Beavers "failed to make the substantial showing of the denial
of a constitutional right necessary for the grant of" a certificate
of probable cause to appeal. Beavers v. Pruett, No. 97-4, slip op.
at 12 (4th Cir. Sept. 23, 1997).
Therefore, Beavers' petition for rehearing is denied.
No member of the Court requeated a poll on the suggestion
for rehearing en banc.
The Court denies Beavers' motion for leave to supplement
the record on appeal.
Entered at the direction of Judge Wilkins with
concurrences of Judge Luttig and Judge Williams.
FOR THE COURT,
/s/ Patricia S. Connor
Clerk
the
ATTACHMENT C
N
IN THE UNITED STATES DISTRICT CO
FOR THE EASTERN DISTRICT OF
RICHMOND DIVISION
LE
; 144
Nov | 9S¢6
THOMAS H. BEAVERS, IR. Ce TS a
Petitioner,
“S Civil Action Number 3:95CV837
J.D. NETHERLAND, WARDEN
Respondent.
FINAL ORDER
THIS MATTER is before the Court on petitioner Beavers’ request for habeas corpus relief
pursuant to 28 U.S.C. § 2254 and on respondent’s motion to dismiss Beavers’ petition. For the
reasons outlined in the accompanying Memorandum Opinion, the Court will DENY Beavers’
petition for a writ of habeas corpus and GRANT respondent’s motion to dismiss the petition.
The Clerk is DIRECTED to send a copy of this Order to all counsel of record.
It is SO ORDERED.
Qe ff fitmen
USATED STATES DISTRICT JUDGE
NOV 19 1996
DATE
a
minutes, Beavers covered her face with a pillow. Mrs. Lowery began
kicking, and Beavers again ordered her to be quiet. When she quieted
down, Beavers removed the pillow. Mrs. Lowery again began to
scream and struggled with Beavers. During the struggle, her clothes
were ripped. Beavers tore off her clothes, ripping her nightgown
completely down the side seams and across the right shoulder in
front, and ripping the entire front of her underpants. Beavers was
nineteen years old, six feet tall, and weighed 205 pounds at the time
of the attack. Mrs. Lowery was five feet, five and one-half inches
tall, and weighed 175 pounds.
Beavers then raped Mrs. Lowery and when, once more, she started to
scream, Beavers held a pillow over her face until she stopped
screaming. When he removed the pillow, Mrs. Lowery made a few
gasping noises, then stopped moving. According to the testimony of
Dr. Faruk Presswalla, the deputy chief medical examiner for the
region, Mrs. Lowery died as a result of cardiac arrhythmia caused by
lack of oxygen.
After killing Mrs. Lowery, Beavers placed an open Bible on her
chest, took a powdered kitchen cleanser from the bathroom and
scattered it over the room and her body, and spread toothpaste on
Mrs. Lowery’s vagina and breasts. Beavers removed four rings from
Mrs. Lowery’s dresser, scattered pills around the kitchen, partially
burmed a photograph of Mrs. Lowery on the stove, and left the house
in complete disarray, with one of the gas stove’s burners still burning.
When Beavers left Mrs. Lowery’s house, he stole her car. After
parking the car in a public place, Beavers set it afire by lighting
newspapers on the interior floor.
A Hampton police officer found the burning car and traced it to Mrs.
Lowery. Officer Banwell of the Hampton police department went to
Mrs. Lowery’s house in the early morning hours of May 2, 1990.
Receiving no answer to his knock, he left. He returned to the home
later that morning and, still receiving no answer, entered the home
through a side door that was slightly ajar. Entering through the
kitchen, the officer found the stove bumer on, the burnt photograph,
and the house in general disarray. He found Mrs. Lowery’s nude
body lying on the floor near her bed.
Approximately one year later, on May 14, 1991, and with the Lowery
murder still unsolved, Beavers broke into the house of his next door
neighbor, 50-year-old Shirley Hodges. He was still in the house
2
The Circuit Court for the City of Hampton, Virginia dismissed defendant’s habeas petition.
The Virginia Supreme Court subsequently denied Beavers’ appeal. The United States Supreme
Court again denied certiorari on October 2, 1995. Beavers v, Netherland, 116 S.Ct. 268 (1995).
On August 25, 1995, the Circuit Court of Hampton set Beavers’ execution for October 17,
1995. On October 12, 1995, this Court stayed the execution pending the appointment of counsel and
the filing of a federal habeas petition. On October 26, 1995, the Court appointed counsel for the
petitioner and ordered that che petition be filed by March 15, 1996. On March 7, 1996, the Court
amended its October 26 order, making the petition due by March 25, 1996. On March 22, 1996, the
Court granted petitioner an extension of time until March 29, 1996.
Petitioner attacks the validity of his conviction based on the following allegations:
L
The Commonwealth did not prove the elements of capital murder beyond a
reasonable doubt;
Petitioner was denied the assistance of competent, independent, and confidential
mental health experts;
The trial court failed to grant trial defense counsel’s motion to withdraw;
Beavers was denied effective assistance of counsel:
PASE OM oA Bp
Counsel were ineffective in communicating with the psychiatric expert;
Counsel failed to call additional witnesses at sentencing;
Counsel conceded the issue of guilt/innocence in their opening statement;
Counsel were ineffective at the post-sentencing hearing;
Counsel were ineffective during closing argument at sentencing;
Counsel failed to request a meaningful lesser-included offense instruction;
Counsel failed to object to prosecutorial misconduct in closing argument at
the guilt phase;
Counsel were ineffective in closing argument at the guilt phase;
Counsel ineffectively cross-examined witnesses at the sentencing phase;
Counsel ineffectively examined defense witnesses at the sentencing phase;
Counsel failed to request any jury instructions to guide the jury in sentencing;
Counsel’s pretrial preparation was insufficient;
4
an
XIX. Beavers’ death sentence was applied discriminatorily on the basis of gender and
financial status;
XX. Imposition of the death penalty constitutes cruel and unusual punishment; and
XXI. Beavers is innocent because the killing was an accident.
Beavers argues that the Court should evaluate his claim under § 2254 as it stood before the
new Anti-Terrorism and Effective Death Penalty Act (“the Act”) was signed into law. Respondent
contends that the new Act applies to this case because Beavers’ petition was pending when the bill
was signed into law. At any rate, respondent advances that the petition should be dismissed
regardless of the analysis used by the Court.
The Court finds that the new Act applies in Beavers’ case because his petition was pending
when the bill was-signed into law. In any event, the Court agrees that the outcome would be the
same under both pre-Act and post-Act law, and relief should not be granted to Beavers.
ANALYSIS
L APPLICABLE LAW
A. — § 2254 UNDER THE OLD LAW
Section 2254 of Title 28 of the United States Code provides a means for persons in custody
pursuant to a state court judgment to apply for a writ of habeas corpus in the federal system. A
petitioner must have exhausted his remedies available in state court before being granted a writ of
habeas corpus. 28 U.S.C. §2254(b). Any claim which has either not been presented to the Virginia
. Supreme Court or has been held by the state courts to be procedurally barred is also procedurally
barred from consideration in a federal habeas action. Whitley v. Bair, 802 F.2d 1487, 1504 (4th Cir.
1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987).
6
the conviction of one who is actually innocent.” Schiup v, Delo, 115 S.Ct. 851, 867 (1995) (quoting
Murray v.Carier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 LEd.2d 397 (1986); See O’Dell v.
Netherland, No. 94-4013, slip op. at 59 (4th Cir. Sept. 10, 1996).
B. THENEWLAW: THE 1996 ANTI-TERRORISM AND EFFECTIVE DEATH
PENALTY ACT
The Antiterrorism and Effective Death Penalty Act of 1996, signed into law on April 24,
1996, adds special habeas corpus procedures for capital cases. séetient 107(c) of the Act provides
that the capital case habeas corpus provisions apply to “cases pending on or after the date of
enactment of [the] Act.” ,
New 28 U.S.C. § 2264(a) provides that the court shall only consider claims that have been
raised and decided on the merits unless the default is based on—
(1) _ the result of State action in violation of the Constitution or
laws of the United States; :
(2) the result of the Supreme Court’s recognition of a new
Federal right that is made retroactively applicable; or
(3) a factual predicate that could not have been discovered
through the exercise of due diligence in time to present the
claim for State or Federal post-conviction review.
Furthermore, § 2264(b) expressly incorporates the amendments to § 2254 into the new death
penalty provisions. New § 2254(d) provides that the court may not grant relief with respect to any
claim that was adjudicated on the merits in state court UNLESS (1) the state court determination was
“contrary to,.or involved an unreasonable application of, clearly established Federal law, as
ra
§ 2264(a) and Bassette_v. Thompson, 915 F.2d 932, 936-937 (4th Cir. 1990), cert, denied, 499 U.S.
982, 111 S.Ct. 1639, 113 LEd2d 734 (1991). See Whitley v, Bair, 802 F.2d 1487, 1496, 1.17 (4th
Cir. 1986) (claims which were presented to state habeas corpus court but not appeaied to the
Virginia Supreme Court were barred), cert, denied, 480 U.S. 951 (1987).
Because defaulted claims are barred ftom federal habeas review under both the old law and
the new law, Beavers cannot receive relief on these claims. Moreover, he cannot satisfy any of the
exceptions which allow review of defaulted claims under the new law.
B. Claims Presented to the Virginia Supreme Court
Respondent declares that some of petitioner’s claims are foreclosed from federal review
because they were expressly held defaulted by the Virginia Supreme Court pursuant to the mule in
Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1008, 95 S.Ct. 780,
42 LEd2d 804 (1975) (holding that petitioner lacked standing to raise on state habeas the question
of whether an in-court identification was tainted because he neither advanced that defense at trial nor
on appeal). See 28 U.S.C. § 2264(a); Whitlev v. Bair. The defaulted claims are I, II, V, VII, XI,
XM, XH, and XX1.
The old law explicitly provides that federal habeas review cannot proceed on claims which
have been held by the state court to be procedurally barred. The new law provides exceptions for
. ~ Prisons. Claim IV.L.
(5) Onappeal, defense counsel failed to adequately demonstrate
that certain assignments of error were not procedurally barred
from appellate review. Claim IV.Q.
(6) _ Virginia’s death penalty was applied in a disproportionate and
discriminatory manner. Claim XIX.
10
Hence, Beavers’ appointed psychologist was constitutionally sufficient and Beavers cannot make
a valid claim for habeas relief.
Beavers further asserts that the ineffective assistance of counsel was “cause” which excuses
any defaulted claims, and he is therefore entitled to an evidentiary hearing regarding whether counsel
was ineffective for failing to raise the following issues: Claims I, V, VII, XI, XII, and XII. The
standard of review for ineffective assistance of counsel is discussed in detail below, but none of these
claims meet the Strickland test because Beavers cannot show that the outcome of his case would
have been different if counsel had raised any of the above claims. Additionally, Beavers is not
entitled to an evidentiary hearing under the standards of both the old law and the new law.
Therefore, the above defaulted claims must be dismissed.
I. The Remaining Claims
Claim I— Sufficiency of the Evidence
The standard of review for sufficiency of the evidence is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational tier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct
2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).
Beavers claims that the Commonwealth did not prove every element of the crime beyond a
reasonable doubt, as is required under the Fourteenth Amendment. He further advances that in
Virginia, to be convicted in a circumstantial evidence case, “all necessary circumstances proved must
be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis
of innocence.” Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984) (quoting
Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976).
12
outcome of his case. This showing is absolutely necessary to succeed on an ineffective assistance
claim. Thus, this Court will aot grant relief on any of Beavers’ ineffective assistance claims because
he fails to satisfy the requirements of both the Strickland test and § 2254(d).
A. — Counsel’s Communication with Dr. Gwaltney
Beavers alleges that his appointed psychologist, Dr. Gwaltney, was unaware of the nature
and scope of forensic psychiatric evidence and of what constitutes mitigating and aggravating
evidence. Respondent contends that Beavers’ claim is similar to a claim made by another Virginia
death-row inmate over six years ago. In Jones v. Murray, 947 F.2d 1106, 1111-1112 (4th Cir.), cert.
denied, 503 U.S. 973, 112 S.Ct 1591, 118 L.Ed.2d 308 (1992), the inmate faulted his trial attormey
for improperly supervising the same appointed psychologist, Dr. Gwaltney. The Fourth Circuit
rejected the claim and noted that Dr. Gwaltney is familiar with Virginia’s statutory requirements
regarding mitigating evidence. Id. Respondent further argues that counsel had no duty to “shop
“around” for another opinion. See Poyner v. Muay, 964 F.2d 1404, 1418-19 (4th Cir), cert, denied,
506 U.S. 958, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992); Pruett v. Thompson, 996 F.2d 1560, 1574
(4th Cir.), cert, denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 437 (1993).
Thus, because Beavers has not shown any unprofessional errors on counsel’s part, he has
failed to satisfy any part of the Strickland test with respect to this claim.
B. The Omission of Sentencing-Stage Witnesses :
Beavers faults his defense counsel for failure to call certain wimesses at the sentencing phase
of the trial. He asserts that certain testimony would have made a difference in the jury’s decision
j
to give him the death penalty: (1) Beavers’ parents could have testified that Beavers had a learning
dieories, experienced abrupt mood swings, made several suicide attempts, and was treated for
14
appointed to determine whether Beavers suffered ftom any mitigating mental state. See Pruett, 996
F.2d at 1574. In response to the failure to put on additional psychiatric evidence, respondent argues
that defense counsel was justified since the court-appointed psychologist had given counsel a highly
unfavorable report of drug dependency and Antisocial Personality Disorder. See Bares v.
Thompson, 58 F.3d at 980-81; Pruett, 966 F.2d at 1574; Povner, 964 F.2d at 1419; Whitley, 802
F.2d at 1494-96. Finally, respondent declares that Detective Browing could have testified that
Beavers was only honest after he had been caught for the third rape and only after eluding the police
for a year. The mitigating aspects of any evidence Detective Browning would have provided is
clearly outweighed by the negative information that would have accompanied it. See Whitley v.
Bair, 802 F.2d at 1495.
The Virginia Supreme Court’s determination of these ineffective assistance claims was
neither contrary to, nor an unreasonable application of, any United States Supreme Court case, and
this Court must defer to the State court’s ruling pursuant to § 2254(d), under both the old and new
laws, and § 2254 (e)(1) of the new law.
C. — Counsel’s Alleged Concession of Guilt
Beavers complains that defense counsel conceded the issue of guilt in his opening statement
when he remarked, “[W]hat you do here is very important. It quite frankly is a matter of life and
death. Those are the choices you are probably going to be called upon to make sometime in the next
day or two.”
Counsel :also told the jury that it would have to decide whether or not the killing was
premeditated or a lesser crime. Respondent maintains that counsel’s comments are all statements
of fact and do not amount to ineffective assistance of counsel. See Clozza v. Murray, 913 F 2d 1092,
16
Respondent professes that this tactic was deliberate on counsel’s part. Respondent explains
that Beavers was the final witness at trial and his testimony, including a display of tears, was
emotionally riveting and counsel decided to give a brief closing argument so as not to dispel the
effect of Beavers’ testimony. Because counsel must be given wide latitude to choose his trial tactics,
the Court will deny relief on this ineffective assistance claim.
F. The Guilt-Stage Instructions
Beavers faults his trial counsel in two areas with respect to the jury instructions. First,
counsel should have objected to the jury instructions on premeditation and malice because they were
confusing. Second, counsel should have asked for instructions on second degree murder and
voluntary or involuntary manslaughter.
Respondent replies that the jury instructions for capital murder and first degree murder were
verbatim from the Virginia Model Jury Instructions, and therefore were not outside the range of
competence required under Strickland. On the second assignment of error, respondent states that”
Beavers would not have been entitled to a second-degree murder instruction because the murder,
even if not premeditated, occurred during a rape and was therefore first-degree murder under
Virginia’s felony-murder statute. See Va. Code § 18.2-33. Furthermore, respondent declares,
Beavers can never show a reasonable probability of a different result in his case because the jury was
given the choice between capital murder and first-degree murder and expressly rejected the lesser
offense. See LeVasseur v. Commonwealth, 225 Va. 564, 592, 304 S.E.2d 644, 659 (1983) (harmless
error in omitting second-degree instruction where jury rejected first-degree verdict in favor of capital
murder), cert, denied, 464 U.S. 1063, 104 S.Ct, 744, 79 L.Ed.2d 202 (1984).
18
EH. Counsel’s Guilt-Stage Closing Argument
Beavers claims that counsel did not make a persuasive argument to the effect that Mrs.
Lowery’s death was an accident and not willful, intentional or deliberate, He further declares that
counsel’s argument amounts to ineffective assistance because they did not mention the jury
instructions. Respondent counters that counsel were entitled to make the argument they believed
best and in the way they deemed best under the circumstances as they existed at the time of trial.
Beavers’ preference now for a different argument does not demonstrate ineffectiveness of counsel
under the Strickland test.
I. _Cross-Examination of Sentencing-Stage Witnesses
Beavers contends that counsel were ineffective when they either failed to cross-examine or
did not ask certain questions on cross-examination of two witnesses who had also been raped by
Beavers. Respondent argues that the handling of witnesses and method of ceeeeenineiad are
matters individual to each attommey and generally cannot support habeas relief. See Sallie v. North
Carolina, 587 F.2d 636, 640 (4th Cir. 1978), cert, denied, 441 U.S. 911, 99 S.Ct 2009, 60 L.Ed.2d
383 (1979). Because much of what Beavers insists should have been brought out in cross-
examination had been brought out in the witnesses’ direct testimony, Beavers cannot show that
counsel’s acts or omissions changed the outcome of his case.
J. Defense Witnesses at the Sentencing Phase
Beavers claims that trial counsel ineffectively examined certain defense witnesses at the
sentencing phase. As noted in the preceding section, an attomey’s method of examining witnesses
is a matter of tactics. Counsel’s examination of these witnesses was not outside of the scope of
20
as a result of these failings. Therefore, this Court does not find that the omissions amount to
ineffective assistance of counsel.
M. Change of Venue
Beavers contends that trial counsel were ineffective for failing to request that the trial be
moved to another location based on the amount of pre-trial publicity about the case and the
likelihood that jurors would be prejudiced against Beavers.
Respondent rebuts this claim with two points. First, Beavers’ case was not so “rare” that
publicity was so pervasive that prejudice was presumed. See Dobbert v. Florida, 432 U.S. 282, 302,
975 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Second, counsel did not make the motion because there was
virtually no publicity since the murder occurred a year before Beavers was apprehended and because
there was no difficulty in selecting an impartial jury. Counsel’s actions were reasonable under the
circumstances. See Tuggle v. Thompson, 57 F.3d at 1365-67 (no change of venue unless prejudice
so widespread as to prevent fair and impartial trial and state court finding of no such prejudice
entitled to presumption of correctness). Hence, the Court must reject this claim of ineffective
assistance.
N. — Jury Selection
Beavers makes the following complaints about his attomeys’ handling of the jury selection:
(1) Counsel did not object to the size of the jury pool; (2) — failed to ask the first panel any
questions; (3) Counsel allowed the jurors to remain non-responsive to the court’s questions; (4)
Counsel failed té object to the court’s question about moral objections to the death penalty; (5)
Counsel made little or no attempt to rehabilitate jurors; (6) Counsel failed to object to the court’s
question about following the law if the death penalty was appropriate; (7) Counsel failed to object
22
unobjectionable and therefore, counse! were not ineffective in failing to object to the prosecutor’s
statements.
Finally, in complaint #11, Beavers complains that counsel did not object to a juror, Henry,
who stated at one point that her family's knowledge of the deceased would cause her some trouble.
Respondent argues that this does not state a federal claim because Henry did not sit on Beavers’ jury
and, moreover, Henry was questioned extensively and swore repeatedly that she could sit
impartially.
In sum, none of Beavers’ claims regarding counsel’s handling of the jury selection process
amount to ineffective assistance under the Strickland standard.
oO. Counsel’s Omission of a Motion for Sequestration
Beavers contends that counsel were ineffective because they abandoned their efforts to have
the jury sequestered due to the newspaper and television coverage of the trial. There is no showing
of actual prejudice and there is no evidence to overcome the presumption that the jurors followed
the court’s instructions not to read or view anything about the case or talk to anyone about it.
Therefore, the Court does not find that counsel rendered ineffective assistance.
P. The Prosecutor’s Guilt-Stage Opening Statement
Beavers alleges that counsel were ineffective when they failed to object in a timely manner
to certain remarks during the prosecutors opening statement. Counsel objected and made a motion
for mistrial out of the presence of the jury at the conclusion of the prosecutor’s opening statement.
According to an affidavit by counsel, they did not object in the middle of the statement because they
did not think they were required to do so. This belief is well within the range of competence
reasonably expected of defense counsel
24
ineffective assistance claims on appeal is easily explained because (1) claims of ineffective
assistance may not be brought on direct appeal, Walker v. Mitchell, 224 Va. 568, 571, 299 S.E.2d
698, 699 (1983), and (2) the decision about which claims to raise on direct appeal is left to the sound
discretion of appellate counsel, even to the extent of refusing to raise non-ftivolous claims suggested
by the client. Ses Jones v, Bares, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 LEd2d 1312 (1983).
Under these standards, Beavers fails to state any ground for relief.
R. Cumulative Prejudice
Beavers claims that the errors of counsel, individually and cumulatively, prejudiced the
outcome of his case. The finding of actual prejudice, however, is dependent upon a finding of
unreasonable error of counsel; it is not a free-floating concept. Furthermore, this Court has rejected
this argument as being “without a shred of legal validity.” See Brilev v. Bass, 584 F. Supp. 807,
845-46 (E.D. Va), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S.Ct. 270, 83
L.Ed.2d 206 (1984). ;
In'summary, because Beavers’ claims fail to satisfy the Strickland test, the Court will deny
relief as to his ineffective assistance claims.
Claim VI— Deputy Lam’s Testimony
At trial, deputy Lam seemed to be reading from a document instead of testifying from his
own recollection. He was admonished not to read from the document, but continued to. The trial
judge sustained defense counsel’s objection and instructed the jury to disregard the testimony.’
Beavers claims that Lam’s statement was the only evidence that the crime was willful, deliberate,
3 Respondent notes that the content of Lam’s testimony was expressly held admissible in a
pretrial hearing. Deputy Lam’s inability to testify without his notes was solely due to nervouszess.
26
Court’s rejection of the claim was not contrary to or an unreasonable application of United States
Supreme Court precedent. See Mu’Min v, Virginia, 500 US. 415, 425, 111 S.Ct 1899, 114 LEd2d
493 (1991) (rejecting challenge to judge’s decision refusing to question jurors individually on the
content of their exposure to pretrial publicity). Therefore, this claim must be dismissed pursuant to
the old law and the new § 2254(d).
Claim X - Seizure of Jewelry
Beavers declares that the trial court erred in denying his motion to suppress the jewelry that
was seized by the police during a search of his home. He contends, as he did on direct appeal, that
the police exceeded the scope of the search warrant when they opened a small pouch discovered in
a dresser drawer and found Mrs. Lowery’s jewelry.
Respondent argues that this claim may not be considered in the proceeding before this Court
because Beavers had a full and fair opportunity to litigate his Fourth Amendment claim in the state
courts. See Stone v, Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 LEd2d 1067 (1976). Furthermore,
pursuant to the new §§ 2254(d) and (e)(1), this Court must defer to the Virginia Supreme Court’s
reasonable determination of the federal issue on direct appeal. Respondent also contends that the
same outcome would obtain even. if the claim were not precluded under Stone v. Powell because a
search extends to the entire area in which an object may be found. See United States v. Ross, 456
U.S. 798, 820-822, 102 S.Ct. 2157, 72 L-Ed.2d 572 (1982). For all of these reasons, this claim must
be dismissed.
Claim xIv - Commonwealth’s Opening Statement
Beavers makes several complaints about the Commonwealth Attomey’s opening statement
made during the guilt phase of trial. He claims that the prosecution improperly (1) referred to the
28
(y@ 12:26 PROM-US DISTRICT CRT RICHMOND tn:@84 771 2067 Pacs
already been given a fll and fic hearing on the issue under the role in Stone-v, Powell ‘Therefore,
as to both of Beaver’s claims related to his confession, respondent correctly states that this Court
sca duit te sta woes vesicle Gatsicabasticns lt tas,
Claim XVI - Proportionality
Beavers asserts that the Virginia Supreme Court erred in its determination on direct appeal
that his sentence was proportional under Virginia Code § 17-110.1. Respondent posits that Beaver’s
claim fails to state a federal issue under long-standing Fourth Circuit precedent. See Tumerv,
: Williams, 35 F.3d 872, 893 (4th Cir. 1994), cort. dented, 115 S.Ct, 1359 (1995) (citing Walton v.
Atizona, 497 U.S. 639, 110 S.Ct 3047, 111 L-Ed2d 511 (1990); Peterson v. Murray, 904 F 2d 882,
887 (4th Cir.), cert, denied, 498 U-S. 992, 111 S.Ct. 537, 112 LEd 2d 547 (1990); Coleman v,
Thompson, 895 F.2d 139, 146-47 (4th Cir. 1990), aff'd 501 U.S. 722, 111 S.Ct. 2546, 115 LEd2d
640 (1991). Because Beavers asks for review of a pure state-law issue, this Court must dismiss the
claim.
Claim XX - Cruel and Unusual Punishment
Beavers asserts that the death penalty is cruel and unusual punishment under the Eighth
Amendment. As support, he cites to Justice Brennan’s concurring opinion in Furman v, Georgia,
408 U.S. 238, 291, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Beaver’s claim is without merit under
established precedent from the United States Supreme Court and the Fourth Circuit, Thus, this
claim must be dismissed because the Virginia Supreme Court’s rejection of this claim was not
unreasonable or contrary to clearly established federal law.
30
a/%
Kon
2 Beavers v. PRUETT
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. Sce
Local Rule 36(c).
OPINION
WILKINS, Circuit Judge:
Thomas H. Beavers, Jr. appeals an order of the district court dis-
missing his petition for a writ of habeas corpus.' which challenged his
Virginia conviction for capital murder and resulting death sentence.
See 28 U.S.C.A. § 2254 (West 1994).? We conclude that the district
‘Beavers named J. D. Netherland, former Warden of the Mecklenburg
Correctional Center where Beavers is incarcerated. as Respondent in his
petition. Subsequently, Samuel V. Pructt succecded Netherland as War-
den at that institution. For ease of reference. we refer to Respondent as
“the Commonwealth" throughout this opinion.
*Because Beavers’ petition for a writ of habeas corpus was filed on
October 11. 1995, prior to the April 24, 1996 enactment of the Antiterro-
rism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No.
104-132, [10 Stat, 1214, amendments to chapter 153 of Title 28 effected
by the AEDPA do not govern our resolution of this appeal. See Lindh v.
Murphy, (17S. Ct. 2059, 2067 (1997). We have not yet decided whether
the provisions contained in § 107 of the AEDPA apply to Beavers, who
filed his state habeas petition on April 18, 1994. See Bennett v. Angelone,
92 F.3d 1336, 1342 (4th Cir.) (declining to decide whether the proce-
dures established by the Commonwealth for the appointment, compensa-
tion, and payment of reasonable litigation expenses of competent counsel
satisfy the statutory opt-in requirements of § 107. which would render
those provisions applicable to indigent Virginia prisoners seeking federal
habeas relief from capital sentences if an initial state habeas petition was
filed after July 1, 1992), cert. denied, 117.S. Ct. 503 (1996), However,
we need not address this issue because we conclude that habeas relief is
inappropriate under the more lenient standards in effect prior to the
recent amendments. See O'Dell v. Netherland, 95 F.3d 1214, 1255 n.36
(4th Cir, 1996) (en banc), aff'd, 117 S, Ct. 1969 (1997).
Beavers v. Prvetr 3
court correctly held that Beavers was not entitled to habeas relief.
Accordingly, we deny Beavers’ application for a certificate of proba-
bie cause to appeal and dismiss this appeal.
On the night of May 1. 1990, Beavers broke into the home of Mar-
guerite Lowery, a 60-year-old widow, and murdered her by suffocat-
ing her with a pillow while raping her. Beavers subsequently was
convicted of capital murder and sentenced to death on the basis that
he posed "a continuing scrious threat to socicty."? Va. Code Ann.
§ 19.2-264.2 (Michic 1995). The Supreme Court of Virginia affirmed
on direct appeal, and the United States Supreme Court denied certio-
rari. See Beavers v. Commonwealth, 427 S.E.2d 411 (Va.), cert.
denied, 510 U.S. 859 (1993). Thereafter, a state habeas court denied
Beavers postconviction relief without conducting an evidentiary hear-
ing, reasoning that Beavers’ allegations of constitutionally ineffective
assistance of counsel lacked merit and that his remaining claims were
barred by Hawks v. Cox, 175 S.E.2d 271, 274 (Va. 1970) (precluding,
absent changed circumstances, consideration in state habeas proceed-
ings of claims considered on their merits during direct review), or
were defaulted under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.
1974) (holding that issues not properly raised on direct appeal will not
be considered on state collateral postconviction review). The Supreme
Court of Virginia denied review.
Beavers then filed this action raising a plethora of issues. Without
conducting an evidentiary hearing, the district court denied habeas
relief and dismissed his petition. With respect to those issues that
Beavers presses on appeal. the district court held federal habeas
review to be forccloscd as to four of them because they were proce-
durally defaulted. Beavers’ defaulted claims are as follows: (1) his
appointed mental health expert was constitutionally ineffective in vio-
lation of the Eighth and Fourteenth Amendments; (2) the refusal of
the state trial court to permit one of his trial attorneys to withdraw
from representation violated the Sixth, “Eighth, and Fourteenth
*Beavers was also convicted of rape. grand larceny, and arson, and was
sentenced separately on these counts to life, ten years. and eight years
respectively.
4 Beavers v. PRUETT
Amendments; (3) the refusal of the state trial court to remove for
cause a prospective juror who stated during voir dire that she would
impose the death penalty if the jury retumed a capital conviction vio-
lated the Eighth and Fourteenth Amendments; and (4) the failure of
the state trial court to guide adequately the discretion of the jurors in
considering the mitigating evidence violated the Sixth, Eighth. and
Fourteenth Amendments. The district court ruled that the three
remaining claims that Beavers presents—that (1) trial counsel was
constitutionally ineffective under the Sixth Amendment with respect
‘to the handling of issues relating to Beavers’ mental health and in, the
investigation and presentation of mitigating evidence; (2) the’ trial
court violated the Eighth and Fourteenth Amendments by refusing to
grant a mistrial; and (3) the trial court denicd Beavers protections
guaranteed by the Eighth and Fourteenth Amendments by refusing
during voir dire to question prospective jurors conceming whether
they would automatically impose the death penalty—lacked merit.
Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). The Supreme Court of Virginia expressly relied on the
procedural default rule set forth in Slayton in refusing to consider
Beavers’ claims that his court-appointed mental health expert was
constitutionally ineffective; that the trial court erred in refusing to per-
mit one of his attorneys to withdraw; that the trial court erred in quali-
fying a juror who stated that she would impose the death penalty if
the jury retumed a capital murder conviction: and that the instructions
failed to guide adequately the discretion of the jury in considering the
mitigating evidence. Thus, we may not consider these claims on their
merits,’ see Smith v. Murray, 477 U.S. 527, 533 (1986); Bennett v.
“Beavers maintains that his claim relating to the adequacy of the
instructions to guide the discretion of the jury in considering the mitigat-
ing evidence is not procedurally defaulted. He asserts that he raised that
claim in his petition for appeal to the Supreme Court of Virginia from
the denial of state postconviction relief. The referenced portion: of the
petition states:
Beavers Vv. PRUETT 5
Angelone, 92 F.3d 1336, 1343 (4th Cir.). cert. denied, V7 S. Ct. 50%
(1996), unless Beavers can demonstrate that cause and prejudice cust
to excuse the default or that the failure of the court to consider the
claim would amount to a fundamental miscarriage of justice, see
Coleman v. Thompson. 501 U.S. 722, 750 (1991).
Trial counsel failed to request any mitigating instructions at the
sentencing phase of Beavers’ capital murder trial... Trial coun-
sel's failure to request. and the trial court's failure to give, these
instructions prejudiced Beavers because the jury may have
imposed the death penalty on an improper. inadequate or arbi-
trary ‘basis.
Appellant's Pet. for Appeal at 52. Beavers v, Netherland, No. 950146
(Va. Apr. 24, 1995). And. he contends, the Supreme Court of Virginia
denied relief on this claim on the basis that the ineffective assistance
claims raised were without merit.
The claim Beavers presented to the Supreme Court of Virginia, how-
ever. was one of ineffective assistance of counsel. The petition omitted
reference to any other constitutional right to additional instruction con-
ceming the mitigating evidence and failed to provide any argument con-
ceming why the referenced instructions were constitutionally required.
Thus, Beavers failed to properly exhaust this claim. See Duncan v.
Henry. 513 U.S. 364, 366 (1995) (per curiam): Mathews v. Evatt, 105
F.3d 907, 911 (4th Cir. 1997) (explaining that in order for federal claim
to be exhausted. the substance of the federal right must be presented to
the highest state court). petition for cert. filed. ___ U.S.L.W. __ (U.S.
May 27. 1997) (No. 96-9163): Mallory v. Smith, 27 F.3d 991. 994 (4th
Cir. 1994) (noting that exhaustion requires that petitioner do more than
apprise state court of the facts: he must "explain how those alleged facts
establish a violation of his constitutional rights"): id. at 995 (explaining
that exhaustion requires "more than scatter[ing] some makeshift needles
in the haystack of the state court record" (internal quotation marks-omit-
ted)). Because presentation to the state court at this juncture would be
fruitless. the claim is properly considered to be procedurally barred. See
George v. Angelane, 100 F.3d 353, 363 (4th Cir. 1996) ("A claim that
has not becn presented to the highest state court nevertheless may be
treated as exhausted if it is clear that the claim would be procedurally
defaulted under state law if the petitioner attempted to raise it at this
juncture."). cert, denied. 117 S. Ct. 854 (1997). Therefore, we hold this
claim to be procedurally defaulted.
6 Beavers v. PRUETT
Beavers does not assert that cause and prejudice cxist to excuse the
default. See Teague v. Lane, 489 U.S. 288, 298 (1989) (possible cause
and prejudice not considered when petitioner fails to argue that any
exist); Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995)
(same), cert. denied, 116 S. Ct. 688 (1996). But, he maintains that the
failure to consider his claims would amount to a miscarriage of justice
because the evidence he proffered to the district court concerning his
organic brain disorder and brain tumor demonstrate his actual inno-
cence,
It is undisputed, however, that Beavers actually mutdered Lowery,
and the additional evidence to which Beavers points docs not demon-
strate that he was not criminally responsible for his conduct. Thus,
Beavers has not demonstrated that a constitutional crror probably
resulted in the conviction of one who is actually factually innocent.
See Schlup v. Delo, 513 U.S. 298, 323-27 (1995). Further, Beavers
has not presented "clear and convincing evidence that but for a con-
stitutional error, no reasonable juror would have found the petitioner
eligible for the death penalty,’" and thus he has not demonstrated that
he is "actually innocent of the death penalty."" /d. at 323 (emphasis
omitted) (quoting Sawyer v Whitley, 505 U.S. 333, 336 (1992)). Con-
sequently, Beavers has not established a fundamental miscarriage of
justice to excuse his default of these claims.
The first of Beavers’ undefaulted claims is his argument that his
trial counsel was constitutionally ineffective. In order to be entitled
to relief on this claim, Beavers bears the burden of demonstrating that
his attorneys’ "representation fell below an objective standard of rea-
sonableness" and “that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the procecdings would
have been different." Strickland v, Washington, 466 U.S. 668. 688,
694 (1984), In assessing counsels’ performance, we bear in mind that
our review is “highly deferential." fd. at 689. Indecd, we afford a
strong presumption that counsel’s performance was within the
extremely wide range of professionally competent assistance. See id.
And, to eliminate the deceptive effects of hindsight on our consider-
ation, we look to "the reasonableness of counscl’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel's
Beavers Vv. PRUETT 7
conduct." Id, at 690. Morcover, even thosc instances in which coun-
sel's conduct fell below an objective standard of reasonablencss gen-
erally will not justify setting aside a conviction unless the error
affected the outcome of the proceeding. See id. at 691-92. Therefore,
deficiencies in Beavers’ attommeys’ conduct would warrant reversal
only if he convinces us that in the absence of unprofessional errors
by his attorncys there is a reasonable probability—i.e., one adequate
to undermine our confidence in the result—that "the result of the pro-
ceeding would have been different." See id, at 694. We review de
novo Beavers’ claim that counsel was ineffective, See id, at 698.
Beavers maintains that the performance of his trial counsel fell
below an objective standard of reasonableness in two areas—the han-
dling of issues relating to Beavers’ mental health and the investigation
and presentation of mitigating evidence. More specifically, Beavers
asscrts that counsel failed: (1) to communicate effectively with his
mental health expert; (2) to ensure that he obtained a psychiatric eval-
uation on an in-paticnt basis; (3) to obtain a full social and clinical
history for use by his court-appointed mental health expert; and (4)
to present the testimony of mitigation witnesses during the sentencing
phase of trial, including family and friends who could have testified
about Beavers’ upbringing by a schizophrenic mother.
With respect to counsel’s. handling of the mental health issues,
Beavers maintains that the district court erred in denying this claim
based on our repeated admonitions that counsel is not obligated to
"shop around" to find an expert that will provide a different or better
expert opinion. Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.
1992); Roach v. Martin, 757 F.2d 1463, 1477 (4th Cir. 1985). Beavers
contends that this is not the basis for his claim and that his argument,
instead, "is that he was entitled to one, competently arrived at, opin-
ion, which he did not receive." Initial Brief of Appellant at 48, This
argument, however, only serves to highlight the deficiency in Bea-
vers’ position. .
Attorneys need not be mental health experts or medical doctors,
and they are not held to a standard of competence requiring them to
be. See Pruett v. Thompson, 996 F.2d 1560, 1574 (4th Cir, 1993).
Pursuant to defense counsel’s request that Beavers be examined by a
mental health expert, Dr. Henry O. Gwaltney, Jr., a forensic clinical
8 Beavers v. Pruett
psychologist, was appointed. Dr. Gwaltney’s subscquent opinion pro-
vided Beavers’ attorneys with little support for an insanity defense or
evidence in mitigation. Beavers does not assert that counscl was
informed by Dr. Gwaltney or others that more information concerning
Beavers’ social and medical history, further testing, or additional
expert assistance was required in order for Dr. Gwaltney to properly
evaluate Beavers. And, Dr. Gwaltney’s opinion was consistent with
that of two psychiatrists who had evaluated Beavers to determine his
mental state at the time of the murder. In short, Beavers’ attomeys did
not perform unprofessionally in relying on his court-appointed mental
health expert. See Jones v. Murray, 947 F.2d 1106, 1112-13 (4th Cir.
1991) (rejecting argument that counsel was ineffective for relying on
the psychological assessment of Dr. Gwaltney).
With regard to Beavers’ claim that counsel should have engaged in
further investigation to discover additional mitigating evidence from
his past, we again conclude that counsel’s performance was not pro-
fessionally deficient. Beavers does not dispute that trial counsel con-
tacted a number of Beavers’ family members, including his wife, his
mother and father, and his uncle in an effort to obtain mitigating
background evidence. Nor does he dispute that it was the professional
judgment of his attorneys that the testimony of these witnesses poten-
tially would have been more damaging than beneficial because of
aggravating information they possessed that counsel did not wish to
risk disclosing. Beavers does not attack this strategic decision on the
part of counsel, but rather proffers affidavits from family members.
neighbors, and former coworkers who indicate that Beavers’ mother
was schizophrenic and that her bizarre conduct had an extremely
adverse effect on her child-rearing skills and that, as a result, Beavers
was subjected to a very difficult and abusive childhood.
Although "counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary,” Strickland, 466 U.S. at 691, counsel is not constitution-
ally required to interview. every family member, neighbor, and
coworker in the search for constitutionally mitigating evidence.
Because Beavers’ trial counsel conducted a rcasonabie investigation
for mitigating evidence with Beavers’ closest family members and
found nothing that, in the professional judgment of the attomcys,
Beavers v. PRueTT 9
could be employed in Beavers’ defense, we conclude that counsel did
not perform unprofessionally in failing to investigate further,
Moreover, even if Beavers had overcome: the presumption that
counsel's performance was within the broad range of professionally
acceptable conduct, we are not convinced that he would have satisfied
the prejudice prong of Strickland. The mental health evidence that
Beavers argucs would have becn obtaincd if counsel had performed
competently docs not undermine our confidence in the verdict at the
guilt phase of his trial. And, although "evidence of a defendant’s men-
tal impairment may diminish his blameworthiness for his crime," it
also may "indicate{ | that there is a probability that he will be danger-
ous in the future." Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir,
1995) (internal quotation marks omitted). Thus, this evidence is a
two-cdged sword, and "the sentencing authority could well have
found in the mitigating evidence of mental illness or history of abuse,
sufficient evidence to support a finding of future dangerousness." /d,
at 981. In sum, Beavers was not deprived of constitutionally adequate
assistance of counscl.*
IV.
Beavers next contends that the state trial court violated the Eighth
and Fourteenth Amendments by refusing to grant a mistrial after it
struck a witness’ testimony. During Beavers’ trial, a state law
enforcement officer, Deputy Lam, testificd. At the beginning of his
testimony, the Commonwealth presented him with a document to
refresh his memory. Beavers objected to Deputy Lam reading from
the document in answering two questions and sought a mistrial. Dep-
uty Lam then testified that Beavers had told him that ‘he had no
“Beavers also argues that he was entitled to an evidentiary hearing in
district court to develop the facts underlying his ineffective assistance of
counsel claim and his ineffective assistance of court-appointed mental
health expert claim. We review a decision’Of a district court denying an
evidentiary hearing for an abuse of discretion. See Pruett, 996 F.2d at
1577, We conclude that the district court did not abuse its discretion
because Beavers did not demonstrate that the additional facts he alleges,
if true, would entitle him to relief. See, e.g, Beaver v. Thompson, 93 F.3d
1186, 1190 (4th Cir.), cert. denied, 117 S. Ct. 553 (1996).
10 Beavers v, PRUETT
other choice but to do what he had done because {Mrs. Lowery] could
identify him.'" Beavers, 427 S.E.2d at 419 (altcration in original).
Deputy Lam subsequently equivocated regarding the accuracy of his
memory of portions of the statement, and when Beavers once again
objected, the trial court sustained the objection and ordered the jury
to disregard the officer's testimony in its entirety. On direct appeal,
the Supreme Court of Virginia held that the trial court had not erred
in refusing to grant a mistrial rather than give a cautionary instruction.
See id. Beavers now asserts that the instruction given by the trial court
was insufficient to cure the prejudice caused by Deputy Lam’s state-
ment and that the failure of the trial court to grant a mistrial created
an impermissible risk that Beavers’ conviction and sentence were the
product of passion, prejudice, and arbitrary factors.
We disagree. Even if we were to conclude that Beavers is correct
that the failure to grant a mistrial under these circumstances was an
error of constitutional dimension, relief would not be appropriate.
Beavers points to no clearly established rule of constitutional law in
existence in October 1993, when his conviction became final, that
would have compelled a state court to reverse his conviction; hence
this argument is barred by the new rule doctrine sct forth in Teague
vy. Lane, 489 U.S. 288 (1989). See O'Dell v. Netherland, 117 S.Ct.
1969, 1973 (1997). Accordingly, this argument docs not provide a
basis for relief.
Vv.
Finally, Beavers contends that the state trial court deprived him of
the guarantees of the Eighth and Fourteenth Amendments by refusing
to ask prospective jurors during voir dire, "Do you belicve that if one
is convicted of taking another’s life, the proper penalty is loss of your
own life?" Initial Brief of Appellant at 59. Again, we disagrec.
"[TJhe requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment," prohibits "[a] juror who will
automatically vote for the death penalty in every case" from sitting on
a capital jury. Morgan v. Illinois, 504 U.S. 719, 729 (1992). A corol-
lary of the right to an impartial jury is the requirement of a voir dire
sufficient to permit identification of unqualified jurors because with-
out an adequate voir dire, a trial judge will not be able to remove
Beavers v. PRUETT i
unqualified jurors and the defendant will not be able to exercise chal-
lenges for cause. See id. at 729-30. Thus, a capital defendant must be
allowed on voir dire to ascertain whether prospective jurors are unal-
terably in favor of the death penalty in every case, regardless of the
circumstances, rendering them unable to perform their duties in accor-
dance with the law. See id. at 735-36. Questions directed simply to
eee juror can be fair, or follow the law, are insufficient. See id.
at
Although it declined to ask Beavers’ proposed question, the state
trial judge asked prospective jurors, [I] the jury should convict the
defendant of capital murder, would you be able to consider voting for
a sentence less than death?" Beavers, 427 S.E.2d at 418. This ques-
tion is adequate to identify those who would automatically vote for
the death penalty, Thus, Beavers’ argument lacks merit.
VI.
In sum, we conclude that Beavers procedurally defaulted his claims
that (1) his appointed mental health expert was constitutionally inef-
fective in violation of the Eighth and Fourteenth Amendments; (2) the
refusal of the state trial court to permit one of his trial attorneys to
withdraw from representation violated the Sixth, Eighth, and Four-
teenth Amendments; (3) the refusal of the state trial court to remove
for cause a prospective juror who stated during voir dire that she
would impose the death penalty if the jury returned a capital convic-
tion violated the Eighth and Fourteenth’ Amendments; and (4) the
state trial court failed to guide adequately the discretion of the jurors
in considering the mitigating evidence in. violation of the Sixth,
Eighth, and Fourtcenth Amendments. And, Beavers’ remaining
claims lack merit.
Prior to the decision of the Supreme Court in Lindh v. Murphy, 117
S. Ct. 2059 (1997), Beavers sought a certificate of appealability in
this court pursuant to 28 U.S.C.A. § 2253(c)(1) (West Supp. 1997)
(providing in pertinent part that "[ujnless”a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the
court of appeals from ... the final order in a habeas corpus proceeding
in which the detention complained of arises out of process issued by
a State court"). Following the Lindh decision, see Lindh, 117 S. Ct.
32 Beavers v. PRUETT
at 2067 (concluding that generally the amendments to chapter 153 of
Title 28 do not apply to petitions, like Beavers’, filed prior to the
effective date of the AEDPA), Beavers sought a certificate of proba-
ble cause to appeal from the district court. The district court denied
the certificate, reasoning that Beavers had not made a substantial
showing of denial of a constitutional right. Beavers subsequently peti-
tioned this court for a certificate of probable cause to appeal.
We need not decide whether, strictly speaking, Beavers was correct
in seeking a certificate of appealability under amended § 2253 or a
certificate of probable cause to appeal because he has failed to make
the substantial showing of the denial of a constitutional right neces-
sary for the grant of either. See Lozada v. Deeds, 498 U.S. 430, 431-
32 (1991) (per curiam) (explaining that to warrant the grant of a cer-
tificate of probable cause to appeal, a habeas petitioner must "make
a substantial showing of the denial of [a] federal right" and that to sat-
isfy this showing, the petitioner "must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate to
deserve encouragement to proceed further" (internal quotation marks
& emphasis omitted; alterations in original)); Murphy v. Netherland,
116 F.3d 97, 101 (4th Cir. 1997) (denying certificate of appealability
under § 2253 in habeas corpus action secking relicf from death sen-
tence where petitioner failed to make a substantial showing of the
denial of a constitutional right). Accordingly, we dismiss Beavers’
appeal.
* DISMISSED
