Bramblett v. True

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

EARL CONRAD BRAMBLETT, 
Petitioner-Appellant,
v.
 No. 02-3
PAGE TRUE, Warden, Sussex I State
Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-00-875-7)

Argued: October 29, 2002

Decided: January 8, 2003

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished opinion. Judge
Wilkins wrote the majority opinion, in which Judge Traxler joined.
Judge Michael wrote a dissenting opinion.

COUNSEL

ARGUED: Jennifer Leigh Givens, VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellant. Robert Quentin Harris, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: William H. Lindsey, LAW OFFICES OF
2 BRAMBLETT v. TRUE
WILLIAM H. LINDSEY, P.C., Salem, Virginia, for Appellant. Jerry
W. Kilgore, Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

WILKINS, Circuit Judge:

Earl Conrad Bramblett appeals an order of the district court deny-
ing his petition for a writ of habeas corpus,1 see 28 U.S.C.A. § 2254
(West 1994 & Supp. 2002). Bramblett was convicted of various
charges, including one count of capital murder, in connection with the
deaths of Blaine and Theresa Hodges and their daughters, eleven-
year-old Winter and three-year-old Anah. Bramblett was sentenced to
death on the capital murder conviction and to terms of imprisonment
on the remaining convictions. Because at least one judge of the panel
has concluded that Bramblett "has made a substantial showing of the
denial of a constitutional right," 28 U.S.C.A. § 2253(c)(2) (West
Supp. 2002), with respect to Bramblett’s claim under Napue v. Illi-
nois, 360 U.S. 264 (1959), we grant a certificate of appealability as
to that claim, see 28 U.S.C.A. § 2253(c)(3) (West Supp. 2002); 4th
Cir. R. 22(a). However, we affirm the ruling of the district court that
Bramblett failed to establish cause and prejudice to excuse the default
of the Napue claim. We deny a certificate of appealability as to the
other issues raised by Bramblett.

I.

At approximately 4:50 a.m. on Monday, August 29, 1994, a pas-
1
Bramblett named Page True, Warden of Sussex I State Prison, as
Respondent in his petition. We refer to True as "the State" throughout
this opinion.
 BRAMBLETT v. TRUE 3
serby noticed smoke rising from the Hodgeses’ home in Vinton, Vir-
ginia and contacted authorities. Upon entering the home, firefighters
found Theresa’s badly burned body in the living room; it was later
determined that she had been strangled before a flammable liquid was
poured on her and ignited. The bodies of Blaine, Winter, and Anah,
all of whom were killed with gunshots to the head, were found
upstairs. Examination of the bodies indicated that Blaine died
between 2:30 a.m. and 2:30 p.m. on August 28, while Theresa and the
children were killed no more than two hours before the fire was dis-
covered on August 29. Investigators also determined that the fire was
the product of arson. Bramblett, a close friend of the Hodges family,
was arrested and charged with the murders and related offenses in
1996.

A. Evidence Against Bramblett

Although the case against Bramblett was almost entirely circum-
stantial, it was no less powerful for being so. Because the weight of
this evidence is relevant to several of Bramblett’s claims, we will
examine the evidence in some detail.

Testimony from various witnesses established that Bramblett was
at the Hodgeses’ home during the weekend of August 27-28. And,
Bramblett was seen with Theresa, Winter, and Anah as late as 4:00
p.m. on Sunday.

At approximately 4:30 a.m. on August 29—shortly before the fire
was discovered—Dorothy McGee drove past the Hodgeses’ home. As
she proceeded down the road, she was passed by a "pinkish red"
pickup truck with a "dark" tailgate. J.A. 358-59. The truck was driven
by a lone, white male. Subsequently, law enforcement officers
showed McGee a white truck and a red truck under lighting condi-
tions similar to those present at the time of the murders; under those
conditions, McGee thought the white truck looked pink. Other evi-
dence established that Bramblett, who is white, drove a white pickup
with a dark tailgate at the time of the murders.

Later on the morning of August 29, a neighbor of the Hodges fam-
ily saw Bramblett drive by the Hodgeses’ home, which at that time
4 BRAMBLETT v. TRUE
was still surrounded by firefighters and law enforcement officials.
Bramblett looked over but did not stop.

Fred Smith, a coworker of Bramblett’s at Brewco Sign Company,
testified that Bramblett sometimes slept in his truck and that he usu-
ally parked the truck in front of Brewco on such occasions. Smith fur-
ther testified that when he arrived at Brewco at 4:30 a.m. on August
29, he did not see Bramblett’s truck. At approximately 5:00 a.m.,
however, Bramblett asked Smith to let him into the building, and he
told Smith that he had spent the night in his truck. Smith noticed that
Bramblett was wearing clean clothes and was freshly shaven.2

Later during the week of the murders, Smith and another coworker
observed Bramblett sitting near a dumpster behind Brewco. A subse-
quent search of the dumpster revealed bills addressed to Bramblett,
a t-shirt identical to one given to Winter a few days before the mur-
ders, a multi-page document written by Bramblett detailing his belief
that Winter was sexually attracted to him, and several audiotapes and
a tape recorder. The recordings on the tapes were by Bramblett, and
in them he spoke about his obsession with Winter.3 Also found in the
dumpster was a crude sketch depicting the murders. The sketch was
of four stick figures: a male, a female, and two children. Lines were
drawn to the heads of the male stick figure and the children, and a cir-
cle had been drawn around the female and the children, excluding the
male. The paper on which the sketch appeared bore notes in Bram-
blett’s handwriting. Other evidence indicated that these notes were
written several days before the murders.

Physical evidence from the crime scene was also linked to Bram-
blett. A pubic hair discovered in the bed where the children’s bodies
were found was matched to Bramblett through visual, microscopic,
and DNA analysis. Several days after the murders, coworkers of
Bramblett’s found a pair of jeans in a bucket filled with water and a
2
In addition, law enforcement officers who interviewed Bramblett later
that day noticed that Bramblett’s sneakers appeared to have been freshly
laundered.
3
Similar recordings were found in a box Bramblett sent to one of his
sisters for safekeeping. Also in the box was one member of a pair of dis-
tinctive socks that belonged to Winter.
 BRAMBLETT v. TRUE 5
solvent used in silk screening in an area of the Brewco shop where
Bramblett did silk screening work. Chemical analysis revealed traces
of fuel oil on the jeans; fuel oil was one of the accelerants used in the
arson of the Hodgeses’ home. Additionally, five-gallon fuel cans
found at the Hodgeses’ home were matched to fuel cans owned by
Candler Oil, where Bramblett had worked.

Several individuals who stopped by the Hodgeses’ home during the
afternoon and evening of Sunday, August 28, and some of the fire-
fighters initially on the scene the following morning, observed notes
on the front and back door of the home. These notes indicated that
there had been a family emergency, although other family members
testified that they knew of no such emergency and that Theresa would
surely have called them if anything were wrong. Additionally,
although family members recognized Theresa’s handwriting, the pros-
ecution’s document expert, Gordon Menzies, was unable to make a
positive match. The prosecution argued, based on other testimony by
Menzies, that Menzies was unable to positively identify Theresa’s
handwriting because she had been under some kind of duress or stress
when she wrote the notes. In addition, Menzies found an indented writ-
ing4 on one of the notes and testified that the writing, which was
addressed to Bramblett’s sons, was very likely written by Bramblett.

The prosecution also linked Bramblett to the crime through ballis-
tics evidence. A .22 magnum revolver that was missing its barrel was
recovered from the bedroom where Blaine’s body was found; police
also seized bullets and shell casings from the crime scene. Searches
of Bramblett’s truck and a storage warehouse he rented yielded addi-
tional .22 magnum bullets, shell casings, and unfired cartridges.
Expert analysis indicated that all of the shell casings bore markings
from a revolver like the one found at the crime scene. Additionally,
the prosecution’s expert determined with certainty that a shell casing
found in Bramblett’s truck had been fired from the revolver found
near Blaine’s body.

The prosecution also presented evidence of suspicious statements
by Bramblett. Having been informed of Bramblett’s close relationship
4
An indented writing is the impression left on a piece of paper that is
beneath another piece of paper being written on.
6 BRAMBLETT v. TRUE
with the family, law enforcement officials sought to speak with him
at the outset of their investigation. Sergeant Mark Vaught with the
Vinton Police Department spoke with Bramblett at approximately
5:00 p.m. on August 29. Vaught informed Bramblett that the Hodges
family had been killed in a fire; he did not mention that the Hodgeses
had been murdered. Vaught subsequently introduced Bramblett to
Agent Barry Keesee with the state police. Keesee again informed
Bramblett that the Hodgeses had been killed in a fire, and asked
Bramblett when he had last seen Blaine. Although several witnesses
testified to seeing Bramblett at the Hodgeses’ home over the week-
end, Bramblett stated that he could not remember when he had last
seen Blaine.5 Bramblett then appeared to become angry and said,
"The sorry [expletive] had a beautiful family. He did them and did him-
self."6 Trial Tr., Vol. 11, at 104 (internal quotation marks omitted).
Bramblett then asked, "They were murdered, weren’t they?" Id. at 106
(internal quotation marks omitted). This was not the only time that
Bramblett revealed knowledge of the crimes beyond information
available to the public. Shortly after his arrest in 1996, Bramblett met
with a reporter. During the interview, Bramblett made statements con-
cerning the facts of the crime—specifically, that only Theresa had
been doused with gasoline—that had not been released by the police.

Shortly after the murders, Bramblett left Virginia for Spartanburg,
South Carolina, where he lived until he was arrested in 1996. During
that time, Bramblett told his roommate, James Lee Owens, that he had
done "something bad" in Virginia but that he couldn’t talk about it.
Trial Tr., Vol. 7, at 15 (internal quotation marks omitted).
5
Later that day, Bramblett told another officer that he could not
remember whether he had been at the Hodgeses’ home on Sunday,
August 28. Several days after the murders, Blaine’s brother spoke with
Bramblett about the murders, and Bramblett was evasive regarding his
activities on August 28.
6
Based on the locations of the bodies and the fact that a firearm was
found near Blaine’s body, police initially believed that the deaths were
the result of a murder/suicide in which Blaine had killed his family, set
fire to the home, then killed himself. Immediately prior to speaking with
Bramblett, however, Agent Keesee had learned that Blaine died many
hours before the rest of the family, rendering the murder/suicide theory
untenable.
 BRAMBLETT v. TRUE 7
The prosecution’s last witness was Tracy Turner, who was incar-
cerated with Bramblett prior to Bramblett’s trial. Turner testified that
Bramblett said he was "addicted to young girls" and that he had
choked Theresa after she had "caught" him with Winter. J.A. 460.
According to Turner, Bramblett further stated that after strangling
Theresa he went upstairs and "took care of his business" with the
remaining members of the Hodges family.7 Id. at 461. Bramblett also
told Turner that he had set fire to the Hodgeses’ home in order to
destroy the evidence.

B. Procedural History

On direct review, the Supreme Court of Virginia affirmed Bram-
blett’s convictions and sentences. The court rejected, inter alia, Bram-
blett’s assertion that the trial court erred in finding him competent to
stand trial. See Bramblett v. Commonwealth, 513 S.E.2d 400, 406-07
(Va.), cert. denied, 528 U.S. 952 (1999). Bramblett then sought state
habeas relief, alleging, as is relevant here, that trial counsel were con-
stitutionally defective in numerous respects; that the State withheld
materially exculpatory information; that the State knowingly pre-
sented perjured testimony; and that the State violated his Sixth
Amendment right to counsel. The Supreme Court of Virginia rejected
the ineffective assistance claims on the merits and determined that the
remaining claims were procedurally defaulted by virtue of Bram-
blett’s failure to raise them on direct appeal, see Slayton v. Parrigan,
205 S.E.2d 680, 682 (Va. 1974).

Bramblett filed this federal habeas action in April 2001. The dis-
trict court granted the State’s motion to dismiss, determining first that
the state court decisions regarding the competency claim and the inef-
fective assistance of counsel claims raised in the state habeas proceed-
ings did not meet the standards set forth in 28 U.S.C.A. § 2254(d) for
the granting of federal habeas relief. The court also determined that
Bramblett had failed to establish cause and prejudice or a miscarriage
of justice to excuse the default of his remaining claims. Finally, the
7
Turner’s testimony regarding Bramblett’s statements is thus inconsis-
tent with the medical evidence indicating that Blaine Hodges died many
hours before the rest of the Hodges family.
8 BRAMBLETT v. TRUE
district court denied an evidentiary hearing. Bramblett appeals all of
these rulings.

II.

Bramblett first contends that the district court erred in rejecting his
claim that he was incompetent to stand trial. It is well settled that a
state violates the Due Process Clause of the Fourteenth Amendment
when it tries an incompetent defendant. See, e.g., Medina v. Califor-
nia, 505 U.S. 437, 439 (1992). In determining competency, the ques-
tion for the trial court is whether the defendant "has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual
understanding of the proceedings against him." Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam) (internal quotation
marks omitted); see Burket v. Angelone, 208 F.3d 172, 191 (4th Cir.
2000) (applying Dusky standard in federal habeas proceeding).

Not every manifestation of mental illness demonstrates
incompetence to stand trial; rather, the evidence must indi-
cate a present inability to assist counsel or understand the
charges. Likewise, neither low intelligence, mental defi-
ciency, nor bizarre, volatile, and irrational behavior can be
equated with mental incompetence to stand trial.

Burket, 208 F.3d at 192 (internal quotation marks & citation omitted).

Three psychologists testified at Bramblett’s competency hearing.
Dr. Evan Nelson diagnosed Bramblett as suffering from a delusional
disorder (a form of psychosis) of a persecutory type. Bramblett’s
delusion, which existed long before the murders, was his irrational
belief that he was the object of a conspiracy to frame him for a crime.8
Dr. Nelson testified that Bramblett had incorporated his defense attor-
neys into the delusion, believing them to be part of the plot to kill
8
Parts of this delusion specifically related to the Hodges family. In
audio tapes and letters created well before the murders, Bramblett
expressed his belief that Blaine Hodges was part of the conspiracy and
that Blaine was using Winter as part of a plan to entrap Bramblett for a
sexual crime.
 BRAMBLETT v. TRUE 9
him. Dr. Nelson concluded that Bramblett was not competent
because, while he had a rational understanding of the criminal process
and role of the defense attorney in general, he did not have a rational
understanding of the role of defense counsel in his case.

The two other psychologists, Dr. Joseph Leizer and Dr. Lee Hagan,
testified that Bramblett was competent to stand trial despite his psy-
chosis. Dr. Leizer, like Dr. Nelson, diagnosed Bramblett as suffering
from a delusional disorder of the persecutory type, but he concluded
that Bramblett had not included his defense attorneys in his delusion.
Rather, Dr. Leizer believed that Bramblett had considered and
rejected the idea that his attorneys might be colluding against him. Dr.
Hagan agreed with Drs. Nelson and Leizer that Bramblett was delu-
sional but nevertheless found him to be "highly" competent. J.A. 246.

After hearing the testimony and reviewing various documents and
audio tapes created by Bramblett, the trial court found that Bramblett
was competent to stand trial. In particular, the court found that Bram-
blett was intelligent, understood the proceedings against him, and was
able to assist his counsel in the preparation of his defense. On appeal,
the Supreme Court of Virginia affirmed, concluding that the finding
of competency by the trial court was "fully supported by the record."
Bramblett, 513 S.E.2d at 407.

The question of competency to stand trial is a factual one. See
Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam). Section
2254 contains two provisions relevant to the evaluation, on federal
habeas, of state-court factual determinations. First, § 2254(d)(2) pro-
vides that a district court may not grant habeas relief unless the adju-
dication of a claim by the state court "resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." Second,
§ 2254(e)(1) provides that factual findings by the state court are pre-
sumed to be correct and that the petitioner bears the burden of "rebut-
ting the presumption of correctness by clear and convincing
evidence." We need not here determine the contours of the relation-
ship between § 2254(d)(2) and § 2254(e)(1), because Bramblett can-
not show either that the state court finding of competency was
unreasonable in light of the evidence presented or that it was incor-
rect.
10 BRAMBLETT v. TRUE
First, Bramblett cannot demonstrate that the determination of com-
petency by the state trial court was unreasonable in light of the evi-
dence presented at the competency hearing. Bramblett primarily
argues that any finding of competency was unreasonable in light of
Dr. Nelson’s testimony that Bramblett believed his defense attorneys
to be part of the conspiracy against him. However, the other two psy-
chologists testified regarding their reasons for disagreeing with Dr.
Nelson’s views. Dr. Leizer, in particular, discussed at length his rea-
sons for concluding that Bramblett’s delusions did not render him
incapable of rationally understanding the role of his defense attorneys.

Bramblett also contends that it was unreasonable for the trial court
to accept Dr. Leizer’s testimony that Bramblett could "set aside" his
delusion that defense counsel were conspiring against him because
delusions, by definition, are fixed beliefs that cannot be set aside
despite all rational evidence to the contrary. This argument rests on
an inaccurate account of Dr. Leizer’s testimony. Dr. Leizer testified
not that Bramblett had a delusional belief that he could somehow "set
aside," but rather that while Bramblett had entertained the possibility
that counsel were against him, he had rejected the notion, and it had
not become part of his delusion.

Bramblett has also failed to rebut the presumption of correctness
by clear and convincing evidence. Bramblett presented to the district
court a letter from Dr. Nelson (submitted to defense counsel after the
competency hearing) and an affidavit from David Williams, defense
counsel’s investigator. In the letter, Dr. Nelson reiterated his view that
Bramblett was incompetent to stand trial, noting that this belief was
bolstered by Bramblett’s "litany of complaints" about the conduct of
defense counsel and his suggestion that counsel were withholding evi-
dence from him. J.A. 11. The Williams affidavit stated, in relevant
part, that

the preparation of Bramblett’s defense . . . was significantly
impaired by Bramblett’s mental illness. . . . Although Bram-
blett was able to communicate with myself and Counsel, all
communication was in the context of his encapsulated delu-
sional thought process. I was unable to communicate with
Bramblett on any level without that communication coming
through the prism of his mental illness and this placed both
 BRAMBLETT v. TRUE 11
myself and trial Counsel in the position of attempting to
gauge reality from delusion in dealing with Bramblett.

Id. at 28.

Bramblett argues that the Nelson letter and the Williams affidavit
constitute clear and convincing evidence that the competency deter-
mination of the state court was incorrect. We disagree. The Nelson
letter is primarily a repetition of the view expressed by Dr. Nelson at
the competency hearing. Bramblett’s post-hearing statement to Dr.
Nelson that defense counsel were withholding information does pro-
vide additional support for Dr. Nelson’s belief that Bramblett was not
competent, but it is not "clear and convincing" evidence that the com-
petency determination was incorrect. And, while the Williams affida-
vit indicates that Bramblett’s delusional disorder made it more
difficult to represent him, the affidavit does not establish that Bram-
blett lacked a rational understanding of the proceedings or that he was
unable to assist defense counsel.

III.

Bramblett next maintains that trial counsel were constitutionally
deficient in several respects. In order to establish that his constitu-
tional right to the effective assistance of counsel was violated, Bram-
blett must demonstrate that his attorneys’ "representation fell below
an objective standard of reasonableness" and "that there is a reason-
able probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). Because the Supreme
Court of Virginia rejected Bramblett’s claims of ineffective assistance
of counsel on the merits, habeas relief is warranted only if Bramblett
can demonstrate that the adjudication of his claims by the state court
"resulted in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1).

A. Competency Hearing

Bramblett first contends that trial counsel were ineffective for fail-
ing to offer testimony at the competency hearing from David Wil-
12 BRAMBLETT v. TRUE
liams regarding the difficulty Williams faced in investigating the case.
Even if it was objectively unreasonable for counsel to fail to offer this
testimony, the testimony is not so significant that there is a reasonable
probability that its presentation would have altered the outcome of the
competency proceeding. In this regard, it should be noted that Wil-
liams is not a psychologist. His perceptions of Bramblett’s mental
functioning were thus entitled to less weight than the informed opin-
ions of the psychologists who examined Bramblett.

B. Ballistics Evidence

As noted above, the prosecution used expert testimony to connect
a .22 magnum revolver found at the crime scene to bullets and shell
casings found in Bramblett’s possession. Bramblett maintains that
counsel were ineffective for failing to seek the appointment of
defense experts to confirm or contradict the conclusions of the prose-
cution’s experts.

Because trial counsel could not have demonstrated an entitlement
to the appointment of an expert, Bramblett cannot establish that coun-
sel were constitutionally deficient for failing to make a request. Under
Virginia law, which is congruent with the requirements of the federal
Constitution, an indigent defendant is entitled to "‘the basic tools of
an adequate defense,’" which may sometimes include appointed
experts. Husske v. Commonwealth, 476 S.E.2d 920, 925 (Va. 1996)
(quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). Virginia does not
appoint experts whenever requested, however. Rather, an indigent
defendant bears the burden of demonstrating that the appointment of
an expert "would materially assist him in the preparation of his
defense and that the denial of such services would result in a funda-
mentally unfair trial." Id. Importantly, "[m]ere hope or suspicion that
favorable evidence is available" is not sufficient. Id. (internal quota-
tion marks omitted). Because Bramblett offers only bare allegations
and speculation to support his claim, he has failed to make the show-
ing necessary to establish entitlement to the appointment of an expert.9
9
Bramblett maintains that his inability to demonstrate his need for
expert assistance is the result of the refusal of the district court to appoint
an expert to assist him in developing such evidence. However, to accept
this argument would be to relieve Bramblett of the burden of making any
showing that expert assistance was necessary to assist in the preparation
of his defense.
 BRAMBLETT v. TRUE 13
C. Video Reenactment

During the course of Dorothy McGee’s testimony, the prosecution
entered into evidence a video reenactment of McGee’s experience
with the "pinkish red" truck. In the reenactment, McGee drove her
vehicle down the same stretch of road under lighting conditions simi-
lar to those on August 29, and was passed by a police officer driving
a white truck. McGee testified that the truck in the reenactment
looked "[s]ort of pink . . . the way it looked that night." J.A. 364.
McGee further testified that, in view of the re-enactment, she was
"certain that the truck that passed [her] was white with a dark tail-
gate." Id. at 365-66.

Bramblett claims that trial counsel were ineffective for failing to
object to the admission of the video reenactment on the basis that the
prosecution failed to lay a proper foundation by eliciting testimony
from McGee regarding the similarity of conditions during the reenact-
ment to the conditions on the morning of August 29.10 We conclude
that any objection would have been futile. See Oken v. Corcoran, 220
F.3d 259, 269-70 (4th Cir. 2000) (holding that trial counsel were not
ineffective for failing to make futile objection). While the videotape
was played for the jury, McGee testified regarding the similarity of
the events in the video to her experience on the morning of August
29. In light of McGee’s testimony, it is highly doubtful that the State
would have been unable to lay the necessary foundation for admission
of the video, and Bramblett has failed to demonstrate that a proper
foundation could not have been laid.11 Cf. Brown v. Corbin, 423
S.E.2d 176, 178 (Va. 1992) (stating that a photographic reconstruc-
tion of an event is admissible if the party offering the evidence estab-
lishes that the reconstruction "is substantially similar, although not
10
Bramblett challenged the admissibility of the video on direct appeal,
but the Supreme Court of Virginia found that the challenge was barred
under the State’s contemporaneous objection rule. See Bramblett, 513
S.E.2d at 405 n.*.
11
Bramblett contends that it was the State’s burden to establish the
admissibility of the video reenactment. On habeas review, however, the
burden rests with the petitioner to demonstrate that counsel’s perfor-
mance was prejudicially ineffective. See Savino v. Murray, 82 F.3d 593,
598-99 (4th Cir. 1996).
14 BRAMBLETT v. TRUE
necessarily identical, to the actual event in all of its essential particu-
lars").

Even assuming that counsel were ineffective for failing to object
to the admission of the videotape, Bramblett cannot establish that he
was prejudiced. Contrary to Bramblett’s assertion, the video reenact-
ment was not so critical to the prosecution’s case that there is a rea-
sonable probability that the jury would not have found Bramblett
guilty had it been excluded. As noted above, substantial evidence tied
Bramblett to the murders. In light of this evidence, it was not unrea-
sonable for the Supreme Court of Virginia to reject this claim.

D. Penalty Phase

Bramblett’s last claim of ineffective assistance of counsel concerns
the mitigation case presented during the penalty phase. Bramblett
contends that counsel should have had Dr. Nelson testify regarding
Bramblett’s psychosis. We conclude that it was not objectively unrea-
sonable for counsel not to offer such testimony.

During the sentencing phase, Bramblett’s attorneys presented testi-
mony from various people—including Bramblett’s eldest sister, his
oldest brother, his ex-wife, and his son—that touched on Bramblett’s
paranoia. All of these witnesses testified, in brief, that Bramblett
believed that the police were plotting against him. One witness who
was familiar with Bramblett’s history of alcoholism testified that
Bramblett’s paranoia was worse when he consumed alcohol. During
closing arguments, counsel asserted that Bramblett suffered from
mental illness, that the murders were the result of Bramblett’s mental
illness, and that Bramblett should be spared the death penalty because
he was mentally ill. In response, the State argued that, instead of
being a mitigating factor, any mental illness suffered by Bramblett
made him a continuing danger to others: "I submit to you, ladies and
gentlemen, do you think he is cured now? Do you think he has got
it out of his system because he has killed four people? Do you think
that issue is gone?" Trial Tr., Vol. 16, at 81.

Even if counsel were ineffective for failing to present further evi-
dence regarding Bramblett’s mental illness, there is no reasonable
probability that Bramblett suffered prejudice. Here, "further evidence"
 BRAMBLETT v. TRUE 15
would have consisted of testimony from Dr. Nelson regarding Bram-
blett’s delusions of persecution. Such testimony, we know from Nel-
son’s testimony at the competency hearing, would have included
statements that delusions are very firmly held even in the face of
rational evidence to the contrary, see J.A. 139 ("You can argue until
you are blue in the face and these [delusional] people will not change
their mind[s]."); that "[d]elusional disorder is a hard disorder to treat,"
id. at 155; and that new people could be incorporated into the delu-
sion, see id. at 170. The danger in allowing such evidence to be pre-
sented to a capital sentencing jury considering the issue of the defen-
dant’s future dangerousness is obvious. As the Seventh Circuit has
explained, "jurors may not be impressed with the idea that to know
the cause of viciousness is to excuse it; they may conclude instead
that, when violent behavior appears to be outside the defendant’s
power of control, capital punishment is appropriate to incapacitate."
Burris v. Parke, 116 F.3d 256, 260 (7th Cir. 1997); see Penry v.
Lynaugh, 492 U.S. 302, 324 (1989) (characterizing evidence of men-
tal retardation as "a two-edged sword" that "may diminish [the defen-
dant’s] blameworthiness for his crime even as it indicates that there
is a probability that he will be dangerous in the future").

IV.

We now turn to Bramblett’s defaulted claims. Absent cause and
prejudice, 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.12 See Harris v.
12
A procedural default also may be excused if the petitioner demon-
strates that "failure to consider the claim[ ] will result in a fundamental
miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750 (1991),
i.e., that "a constitutional violation has probably resulted in the convic-
tion of one who is actually innocent," Murray v. Carrier, 477 U.S. 478,
496 (1986). In order to make this showing, a federal habeas petitioner
must present new "evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is also satis-
fied that the trial was free of nonharmless constitutional error." Schlup
v. Delo, 513 U.S. 298, 316 (1995). Bramblett rests his claim of actual
innocence solely on Turner’s claim to have perjured himself at trial. For
the reasons discussed below, Turner’s testimony did not carry such
16 BRAMBLETT v. TRUE
Reed, 489 U.S. 255, 262 (1989). In order to demonstrate cause, the
petitioner must "show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s proce-
dural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Addition-
ally, the petitioner must demonstrate actual prejudice.13 See Mickens
v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001) (en banc), aff’d, 122
S. Ct. 1237 (2002).

A. Claims under Brady v. Maryland

Suppression by the government of evidence favorable to the
defense that is material to the outcome of a trial or sentencing pro-
ceeding violates due process, irrespective of the motive of the prose-
cutor. See Brady v. Maryland, 373 U.S. 83, 87 (1963). In addition to
the disclosure of materially exculpatory evidence, due process
requires the government to disclose material evidence affecting the
credibility of prosecution witnesses. See Giglio v. United States, 405
U.S. 150, 154-55 (1972). Undisclosed evidence is material when its
cumulative effect is such that "there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the pro-
ceeding would have been different." Kyles v. Whitley, 514 U.S. 419,
433-34 (1995) (internal quotation marks omitted); see id. at 436-37
(explaining that "suppressed evidence [must be] considered collec-
tively, not item by item"). A "reasonable probability" is one sufficient
to undermine confidence in the outcome. Id. at 434 (internal quotation
marks omitted). Evidence that does not meet the prejudice threshold

weight that it is more likely than not that no reasonable juror with knowl-
edge of Turner’s perjury would have convicted Bramblett. See id. at 327.
Additionally, we note that with respect to virtually every defaulted
claim, Bramblett argues that the district court applied the wrong standard
in determining prejudice. Because this court reviews the ruling of the dis-
trict court de novo, effectively standing in its shoes to consider the issues
anew, such errors, even if they occurred, do not warrant reversal.
13
There is some dispute between the parties regarding the nature of the
showing required to demonstrate actual prejudice. For purposes of this
appeal, we will assume that Bramblett is correct that the standard for "ac-
tual prejudice" is the prejudice standard from the underlying constitu-
tional claim.
 BRAMBLETT v. TRUE 17
for a Brady claim necessarily fails to satisfy the prejudice prong of
procedural default analysis. See Strickler v. Greene, 527 U.S. 263,
282 (1999).

1. Tracy Turner

Turner testified that Bramblett made several incriminating state-
ments about the Hodges murders. These statements came to light dur-
ing a series of meetings between Turner and Agent Barry Keesee of
the Virginia State Police. During state habeas proceedings, the State
for the first time disclosed notes that Agent Keesee had taken of his
first conversation with Turner. Bramblett claims that these notes were
materially exculpatory and should have been disclosed prior to trial.
Bramblett also contends, based on a post-trial affidavit by Turner, that
an agreement existed between Turner and the State regarding the ben-
efits Turner would obtain by testifying against Bramblett.14

Even if Bramblett can establish cause to excuse his default of this
claim, there is no "reasonable probability that the result of the trial
would have been different if the suppressed documents had been dis-
closed to the defense." Id. at 289 (internal quotation marks omitted).
The Keesee notes pertain to incriminating statements made to Turner
by Bramblett, and are thus not exculpatory—much less materially so
—in and of themselves. And, while Bramblett maintains that the notes
are valuable for impeachment purposes because there are inconsisten-
cies between the Keesee notes, Turner’s testimony, and Turner’s
notes, he fails to explain what these inconsistencies are and how they
are material to the issue of guilt or innocence. Further, the alleged
agreement between Turner and the State—assuming for purposes of
decision that it actually existed—is not material in light of the weak-
ness of Turner’s testimony. Even without evidence of the agreement,
the jury knew that Turner had been convicted of numerous offenses
involving dishonesty and that Turner’s testimony was inconsistent
14
Additionally, Bramblett complains that the State did not timely dis-
close Turner’s criminal history, transcripts of taped conversations
between Turner and Agent Keesee, and Turner’s notes of his conversa-
tions with Bramblett. However, the record establishes—and Bramblett
does not dispute—that counsel received these materials in time to use
them at trial. That is all that Brady requires.
18 BRAMBLETT v. TRUE
with the medical evidence regarding the order in which the Hodgeses
were killed. And, on cross-examination defense counsel raised the
possibility that Turner was testifying against Bramblett in hopes of
regaining his status as a prison trustee. Although this attack would
certainly have carried more weight if counsel had known about the
existence of an agreement between Turner and the State, there is no
reasonable probability that such additional weight would have per-
suaded the jury to reach a different result.

2. Michael Fulcher

Michael Fulcher is Theresa Hodges’ half-brother. Fulcher, a drug
dealer, worked as an informant for the Drug Enforcement Administra-
tion (DEA) during the 1980s and continued to offer information to the
DEA after his incarceration in 1991. At trial, Bramblett argued that
the Hodgeses were killed in retaliation for Fulcher’s activities.

In his state habeas petition, Bramblett claimed that the State had
withheld materially exculpatory information regarding Fulcher. In
support of this claim, Bramblett submitted an affidavit from defense
investigator David Williams, who claimed that subsequent to trial he
had learned that: (1) the Virginia State Police were investigating Ful-
cher for drug dealing and money laundering (crimes of which he was
later convicted) contemporaneously with the investigation of the
Hodges murders; and (2) Fulcher, who was incarcerated, was placed
in protective segregation "during this time frame." J.A. 28.

Bramblett cannot demonstrate prejudice for his default of this
claim because the failure to disclose this information did not violate
Brady. Even assuming that the facts that Fulcher committed other
crimes and that he was segregated for his own protection support
Bramblett’s theory that the Hodgeses were killed in retaliation for
Fulcher’s activities as an informant, this evidence is clearly not mate-
rial to Bramblett’s guilt or innocence. Simply put, Bramblett offers
nothing more than the barest speculation to connect Fulcher’s activi-
ties to the murders.

3. Benjamin Carr

For the first time in his federal habeas petition, Bramblett claimed
that the State withheld information regarding the possible involve-
 BRAMBLETT v. TRUE 19
ment of Benjamin Carr in the murders. In support of this claim, Bram-
blett submitted affidavits from Robert and Judith Stinnett, longtime
friends of Carr’s. According to Judith’s affidavit, Carr contacted her
"in 1995 or 1996" and "offered to ‘ice [Robert’s former employer]
like the family on Virginia Avenue.’" J.A. 36, 37. Judith took this
statement to mean that Carr claimed responsibility for the Hodges
murders; she made this connection because Carr had told her that he
had had an argument with Blaine Hodges during a period when both
worked for the post office. Judith mentioned her conversation with
Carr to a friend who was a Vinton Police officer.

On the assumption that Carr’s statement to Judith was exculpatory,
the State’s failure to disclose it constitutes cause for Bramblett’s
default of this claim.15 There was no prejudice, however. Carr’s state-
ment is, at best, equivocal, and is thus inculpatory of himself (and
exculpatory of Bramblett) only by inference. In light of the strong evi-
dence against Bramblett, it is highly unlikely that any reasonable jury
would draw such an inference, much less use it as a basis to acquit
Bramblett. Cf. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per
curiam) (stating that, in light of "overwhelming" case against defen-
dant, Brady violation could not be established by mere supposition).16

4. Cumulative Materiality

Finally, Bramblett argues that even if he has failed to establish that
any of the individual pieces of withheld evidence is material, materi-
ality is present when the individual pieces are viewed cumulatively.
See Kyles, 514 U.S. at 436-37 (explaining that assessment of material-
15
Neither Judith’s interpretation of the statement, nor her further specu-
lation that Carr was capable of murdering children, is admissible; hence,
it is not subject to disclosure under Brady. See Wood v. Bartholomew,
516 U.S. 1, 6 (1995) (per curiam) (holding that inadmissible materials
that are not likely to lead to the discovery of admissible exculpatory evi-
dence are not subject to disclosure under Brady).
16
Bramblett also maintains that timely disclosure of the information
from Judith Stinnett could have led to further exculpatory information.
This claim rests on little more than speculation, however, and there is no
basis on which we can conclude that further investigation would have led
to materially exculpatory information.
20 BRAMBLETT v. TRUE
ity under Brady requires that evidence be "considered collectively,
not item by item"). To the contrary, even when viewed collectively,
the suppressed items—none of which is related to the others—do not
place the evidence actually presented at trial in such a different light
as to undermine confidence in the verdict.

B. Claim under Napue v. Illinois

A conviction acquired through the knowing use of perjured testi-
mony by the prosecution violates due process. See Napue v. Illinois,
360 U.S. 264, 269 (1959). The knowing use of perjured testimony
constitutes a due process violation when "there is any reasonable like-
lihood that the false testimony could have affected the judgment of
the jury." Kyles, 514 U.S. at 433 n.7 (internal quotation marks omit-
ted).

Bramblett maintains that the State knowingly presented false testi-
mony from Tracy Turner. In support of this claim, Bramblett points
to a lengthy affidavit by Turner in which Turner claimed to have fab-
ricated his testimony against Bramblett with the aid of Agent Keesee
during a series of meetings between the two. According to the affida-
vit, Bramblett never said anything incriminating during his conversa-
tions with Turner. Rather, Agent Keesee provided Turner with
information gleaned from the investigation, which Turner would then
incorporate into his recounting of innocent conversations with Bram-
blett.

Even assuming that Turner’s testimony was entirely fabricated and
that the State knew this at trial, Bramblett suffered no prejudice. The
most damaging portions of Turner’s brief testimony were his claims
that Bramblett stated that he was "addicted to young girls" and that
he had "choked the life out of" Theresa Hodges, then "went . . . to the
man’s room and then . . . went to the girls’ room and . . . finished the
business, took care of . . . business." J.A. 460-61. The first of these
statements was cumulative of substantial other evidence regarding
Bramblett’s fixation with Winter Hodges—some of it from Bramblett
himself, in the form of audio tapes he recorded. The second was of
questionable veracity in light of the fact that the order of the murders
was inconsistent with the medical evidence, as highlighted by defense
counsel on cross examination. Turner’s credibility was further called
 BRAMBLETT v. TRUE 21
into question by his numerous convictions for crimes involving dis-
honesty, his desire to regain his status as a jail trustee, and his possi-
ble involvement in a scheme to present false testimony in another
criminal proceeding.

It is true, as Bramblett points out, that the prosecutor asserted dur-
ing closing arguments that if Turner were believed, his testimony
alone was sufficient to convict Bramblett. However, it is also true that
the vast majority of the prosecutor’s lengthy closing argument was
devoted to a careful detailing of the circumstantial evidence against
Bramblett and that the prosecutor concluded his argument by assert-
ing that even if the jurors disregarded Turner’s testimony, the circum-
stantial evidence was more than sufficient to convict.

In view of the extremely strong circumstantial case against Bram-
blett and the weakness of Turner’s testimony, we simply cannot say
that there is a reasonable likelihood that the jury would have acquitted
Bramblett had it known that Turner’s testimony was wholly false. We
therefore conclude that Bramblett has failed to demonstrate prejudice
to excuse his default of this claim.

C. Claim under Massiah v. United States

The state violates the Sixth Amendment when, after the right to
counsel has attached and in the absence of counsel, it "deliberately
elicit[s]" incriminating statements from the defendant and introduces
those statements against him at trial. Massiah v. United States, 377
U.S. 201, 206 (1964). Bramblett asserts a Massiah claim on the basis
of an allegation in Turner’s affidavit that Agent Keesee instructed
Turner to "keep talking to Bramblett" and report any incriminating
statements Bramblett made. J.A. 14; see United States v. Henry, 447
U.S. 264, 266, 270-71 (1980) (holding that Massiah was violated
when law enforcement agent instructed jailhouse informant "to be
alert" for any incriminating statements made by defendant "but not to
initiate any conversation with or question" defendant because officer
"must have known" that informant would take steps to obtain incrimi-
nating information).

Bramblett acknowledges that his reliance on Turner’s affidavit and
his claim that all of the statements therein—i.e., that Turner fabricated
22 BRAMBLETT v. TRUE
the incriminating statements allegedly made by Bramblett—are true
precludes him from making a claim directly under Massiah. Never-
theless, he maintains that his Sixth Amendment rights were violated
because "Turner’s communications with Bramblett provided an
otherwise-unknown platform upon which Agent Keesee could build
fabrications." Br. of Petitioner-Appellant at 47. This argument suffers
from two defects. First, it is simply a rehashing of Bramblett’s Napue
claim, discussed above. Second, this argument is not an application
of Massiah, but rather is an extension of it, and Bramblett points to
no authority clearly establishing such a rule when his conviction
became final in October 1999. Hence, the argument is barred by the
new rule doctrine set forth in Teague v. Lane, 489 U.S. 288 (1989).

V.

Finally, Bramblett argues that the district court erred in refusing his
request for an evidentiary hearing. 28 U.S.C.A. § 2254(e)(2) provides
that a habeas petitioner who has "failed to develop the factual basis
of a claim in State court" is entitled to an evidentiary hearing only if,
as is relevant here: (1) "the claim relies on . . . a factual predicate that
could not have been previously discovered through the exercise of
due diligence"; and (2) "the facts underlying the claim would be suffi-
cient to establish by clear and convincing evidence that but for consti-
tutional error, no reasonable factfinder would have found the
[petitioner] guilty of the underlying offense." The district court cor-
rectly concluded that Bramblett could not satisfy the second prong of
this test.

VI.

For the reasons set forth above, we conclude that Bramblett has
failed to make a substantial showing of the denial of a constitutional
right with respect to the majority of his claims. Accordingly, as to
those claims we deny a certificate of appealability and dismiss. With
respect to Bramblett’s Napue claim, we grant a certificate of appeala-
bility but affirm the ruling of the district court.

AFFIRMED IN PART; DISMISSED IN PART
 BRAMBLETT v. TRUE 23
MICHAEL, Circuit Judge, dissenting:

Tracy Turner, who was in jail with Earl Bramblett, testified at
Bramblett’s capital murder trial that Bramblett had confessed to mur-
dering the entire Hodges family. Turner’s testimony was the only
direct evidence against Bramblett, who was convicted and sentenced
to death. Turner now swears by affidavit that his testimony about
Bramblett’s confession was a total lie. According to Turner, he fabri-
cated the confession with the help of a Special Agent of the Virginia
State Police, who fed him the known details of the Hodges murders.
The majority assumes that Turner’s testimony was fabricated, but
concludes that Bramblett was not prejudiced because the circumstan-
tial evidence was more than sufficient to convict. The majority also
affirms the district court’s denial of Bramblett’s request for an eviden-
tiary hearing. I respectfully dissent. Turner’s testimony about Bram-
blett’s confession could have affected the jury’s decision to convict.
If the testimony was false as Turner now claims, that would be
enough to grant the writ of habeas corpus. I would therefore vacate
the order denying the writ and remand the case for an evidentiary
hearing to determine whether Turner gave perjured testimony at
Bramblett’s trial.

I.

Bramblett’s claim that the prosecution violated Napue v. Illinois,
360 U.S. 264 (1959), by allowing a state witness to perjure himself,
is a form of a Brady claim. See Strickler v. Greene, 527 U.S. 263,
280-81 (1999); Kyles v. Whitley, 514 U.S. 419, 432-33 (1995); United
States v. Agurs, 427 U.S. 97, 103 (1976).1 Bramblett’s inability to
raise the Napue issue prior to his state habeas proceeding leaves it
procedurally defaulted, and he must show cause and prejudice to pre-
vail at this stage. See Strickler, 527 U.S. at 282. I believe he has done
1
Although Bramblett alleges that a police officer, rather than the prose-
cutors, had actual knowledge of his perjury, the officer’s knowledge is
imputed to the prosecution. Boyd v. French, 147 F.3d 319, 329-30 (4th
Cir. 1998); see also Napue, 360 U.S. at 269 ("First, it is established that
a conviction obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth Amend-
ment.") (emphasis added; internal citations omitted).
24 BRAMBLETT v. TRUE
both. He has, of course, shown cause. Bramblett was only able to
raise this issue once Turner, the confessed perjurer, decided to come
clean to Bramblett’s state habeas lawyers. Bramblett’s default (failing
to raise the issue on direct appeal) was due to the prosecution’s con-
cealment of its use of the perjured testimony. That excuses the
default. Amadeo v. Zant, 486 U.S. 214, 222 (1988).

Bramblett has demonstrated prejudice if there is "any reasonable
likelihood that the false testimony could have affected the judgment
of the jury." Kyles, 514 U.S. at 433 n.7 (internal quotation marks
omitted). Courts view blatant prosecutorial misconduct as serious
business, and the prosecution’s knowing use of perjured testimony is
more apt to be considered prejudicial. See id.; see also Agurs, 427
U.S. at 103-04; Mooney v. Holohan, 294 U.S. 103, 112 (1935) (noting
that the use of perjury "by a State to procure the conviction and
imprisonment of a defendant is as inconsistent with the rudimentary
demands of justice as is the obtaining of a like result by intimida-
tion"). A petitioner asserting a run-of-the-mill Brady claim — that the
prosecution failed to turn over information that would have been help-
ful to the defense — must show "a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceed-
ing would have been different." Kyles, 514 U.S. at 433-34 (internal
quotation marks omitted). On the other hand, a petitioner asserting
that the prosecution knowingly used perjured testimony need only
show "any reasonable likelihood that the false testimony could have
affected the judgment of the jury." Kyles, 514 U.S. at 433 n.7 (internal
quotation marks omitted).

The majority concludes that because "the circumstantial evidence
was more than sufficient to convict," there is no reasonable likelihood
that Turner’s perjured testimony could have affected the judgment of
the jury. Ante at 21. If Turner’s affidavit is true, however, it suggests
that the police officer went well beyond encouraging misleading or
exaggerated testimony and instead fed Turner enough details of the
murder investigation to allow him to fabricate a believable confession
that he attributed to Bramblett. This allegedly manufactured confes-
sion at minimum reinforced the jury’s determination of guilt. At
worst, it removed justifiable doubts the jury could have had about the
strength of the circumstantial evidence. Turner’s perjured testimony
could therefore have affected the judgment of the jury.
 BRAMBLETT v. TRUE 25
The circumstantial case against Bramblett was fairly strong, but it
was far from airtight. If only the circumstantial evidence had been
presented, reasonable jurors could have had real doubts about convict-
ing Bramblett. This is because many of the individual pieces of cir-
cumstantial evidence could be explained away or at least minimized.
First. Bramblett drove a white pickup with a dark tailgate, and Doro-
thy McGee testified that she saw a pink or red pickup with a dark tail-
gate pass her in the vicinity of the Hodges home in the early morning
hours after the murders. Ante at 3; J.A. 358-59. The prosecution
sought to demonstrate through reenactments that a white truck would
have looked pink or red under early morning lighting conditions. J.A.
359-66. Jurors, however, could have reasonably doubted the authen-
ticity of the reenactments or simply could have concluded that the
white truck used in the reenactments did not look pink or red. Second.
The murder weapon was never conclusively identified, and expert tes-
timony that unfired bullets found at the murder scene and among
Bramblett’s belongings came from the same melt (or lot) appears less
important than the prosecution claimed. Jurors could have believed
that more than one person in the same town might have gone to the
local store and bought ammunition that came from the same lot.
Third. The only physical evidence linking Bramblett to the crime
scene was the single pubic hair, matched to him through DNA, that
was discovered in Anah and Winter’s bed, where their bodies were
found. Ante at 4-5; Trial Tr., Vol. 78, at 74-75. Bramblett was a fre-
quent visitor to the Hodges household. Thus, the hair could have been
blown into the bed by the large fans used by firefighters or by air
coming through an open window. Trial Tr., Vol. 70, at 130, 156-57,
168. This was possible because it does not appear that the bodies were
covered immediately to protect the crime scene, Trial Tr., Vol. 70, at
132, 157; and, in any event, at some point in the hours after the fire,
the cover was removed for a considerable period of time, Trial Tr.
Vol. 73, at 22. Fourth. Bramblett’s statements to the police that he
thought he would be arrested for the murder, made before the police
told him the Hodgeses had been murdered, Trial Tr., Vol. 73, at 13-
14, are consistent with his delusions that the police were using the
Hodges family to entrap him. Trial Tr., Vol. 78, at 98. Fifth. Despite
the prosecution’s argument that Bramblett’s obsessions about Winter
were the motive for the crime, Trial Tr., Vol. 78, at 97, the prosecu-
tion presented no evidence that Winter or her sister was sexually
assaulted by Bramblett the night of the murders or on any other occa-
26 BRAMBLETT v. TRUE
sion. Sixth. The prosecution never fully explained how Bramblett
could have killed Mr. Hodges several hours before he killed the rest
of the family when Bramblett was with Mrs. Hodges and the two girls
for several hours between the time Mr. Hodges was murdered and the
time the other three were murdered. A witness who saw the group
together believed nothing was amiss; Mrs. Hodges even spoke to the
witness privately and expressed no concern about her or her family’s
safety. Trial Tr., Vol. 71, at 185.2 In sum, without Turner’s testimony
that Bramblett told him the details of the Hodges murders and ulti-
mately confessed to committing them, the Commonwealth would
have been left with only the circumstantial case, a case that was not
without some holes.

Moreover, if Turner’s current story is true, the degree of deceit
practiced by the prosecution raises the question of whether it believed
that its circumstantial case was sufficient to prove Bramblett’s guilt
beyond reasonable doubt. The Commonwealth argues to us that its
case against Bramblett was so strong that a fabricated confession
would not have affected the jury’s assessment. Yet Turner’s affidavit,
if true, suggests that the Commonwealth believed that it needed to
manufacture evidence of incriminating statements by Bramblett to
ensure a conviction. An examination of Turner’s affidavit and his
detailed claims about the prosecution’s efforts to engineer his false
testimony lends strength to Bramblett’s claim that Turner’s testimony
was quite prejudicial.

According to Turner, he was made a trustee (or trusty) shortly after
he was incarcerated at the Roanoke County Jail in 1996. J.A. 13, ¶ 3.
If he could retain trustee status, he would "get a lot of time off [his]
original sentence." J.A. 14, ¶ 7. He lost this status, however, when he
was found with contraband, a pack of cigarettes. J.A. 13, ¶ 3. Turner’s
contraband violation led to his reassignment to a different floor,
2
A prosecution expert testified that a shell casing found in Bramblett’s
pickup had been fired from the revolver found near Mr. Hodges’s body.
Bramblett argued at trial that the real murderer, who was an enemy of
Mr. Hodges, tried to set up Bramblett by planting the shell casing in his
truck. The jury could have rejected Bramblett’s argument on this point,
but that still does not minimize the importance of the allegedly fabricated
confession.
 BRAMBLETT v. TRUE 27
where he met Bramblett. Bramblett told Turner he was worried
because the police had found some shells that the prosecution was
seeking to connect to the Hodges murders. J.A. 13, ¶¶ 3-5. Turner
passed this information on to his arresting officer, who was in Vinton,
Virginia, where the Hodgeses had been murdered. J.A. 13, ¶ 6. The
State Police sent Agent Barry Keesee to see Turner the next day, and
that meeting was the first of eight or nine meetings the two would
have. J.A. 14, ¶ 6. At the first meeting Turner told Keesee that he was
seeking a return to trustee status; Keesee replied that he would proba-
bly be able to arrange that. J.A. 14, ¶ 9. Immediately afterwards, Kee-
see began to feed Turner details of the investigation into the Hodges
murders. J.A. 14, ¶ 9. During Keesee’s visits Turner would begin by
telling Keesee what Bramblett had said about the case. (These state-
ments, Turner now says, were never inculpatory.) J.A. 15, ¶ 12. Kee-
see would then provide Turner details of the investigation that were
new to Turner; and, once Keesee had turned on his tape recorder, Tur-
ner would weave these new facts into fabricated accounts of state-
ments attributed to Bramblett. J.A. 14, ¶¶ 10, 12-13. Turner also
explained in his affidavit that he did not take notes during his conver-
sations with Bramblett, nor did Keesee ever ask him to do so, J.A. 15,
¶ 11. Turner claims that the two prosecutors, who met with him to
prepare his testimony, asked him to write down what he said he had
heard from Bramblett so that he could testify that he had made notes
of his conversations with Bramblett as they occurred. J.A. 17-18,
¶ 25.

Although restoration of his trustee status was Turner’s primary
goal, he was also seeking admission to a drug treatment program. J.A.
15-16, ¶ 16. Keesee told Turner that they had to resolve the Hodges
case before they could discuss a treatment program. J.A. 16, ¶ 16.
Feeling pressured to provide more incriminating evidence, Turner
says he told Keesee that Bramblett confessed that when Mrs. Hodges
caught him with one of the girls, he "choked the life" out of Mrs.
Hodges and then "took care of business" with the girls and Mr.
Hodges. J.A. 15, ¶¶ 15, 16. Turner testified at Bramblett’s trial that
Bramblett made that confession to him. Turner now swears that
"Bramblett never said anything to [him] to indicate, expressly or
implicitly, that he had anything to do with any of the Hodges’
deaths." J.A. 15, ¶ 15.
28 BRAMBLETT v. TRUE
Turner’s affidavit also alleges that he did in fact receive favorable
treatment in exchange for his testimony against Bramblett. His trustee
status was restored. J.A. 17, ¶ 23. Moreover, he says that he was per-
mitted to attend a county auction without a guard and to return to the
jail late with no penalty. Such treatment, he explained, is unheard of
for someone serving a twenty-seven year sentence. J.A. 17 ¶ 22.
Finally, a reconsideration hearing on his sentence was scheduled prior
to the Bramblett trial, but the hearing was purposely delayed until
Turner had testified against Bramblett. J.A. 16, ¶ 18. When Turner’s
hearing was finally held, one of the prosecutor’s in Bramblett’s case
represented the Commonwealth. The prosecutor advised the court of
Turner’s assistance in the Bramblett case, and "240 days of misde-
meanor time" were suspended from Turner’s sentence. J.A. 18, ¶ 29.

If Turner is now telling the truth that he made up Bramblett’s con-
fession with the assistance of Agent Keesee, there is a reasonable
likelihood that Bramblett suffered prejudice. Given the questions
raised by the circumstantial case, Turner, the only witness who gave
direct evidence (the confession) linking Bramblett to the murders,
could have had a powerful effect on how the jury saw the entire case,
especially the circumstantial evidence. See Kyles, 514 U.S. at 435
(noting that a petitioner may demonstrate a Brady violation "by show-
ing that the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the
verdict"). At trial the prosecution acknowledged the importance of
Turner’s testimony. In his closing a prosecutor noted that this was one
of the few pieces of direct evidence linking Bramblett to the murders,
J.A. 526, and it is by far the most damaging. Turner’s importance to
the prosecution was further underscored by the Commonwealth’s
choice to conclude the presentation of its case with Turner’s testi-
mony and to recap Turner’s testimony at the end of its closing argu-
ment. Finally, as discussed above, if Turner is telling the truth now,
the lengths to which the prosecution went to manufacture a confession
indicate that Turner’s testimony was critical to the prosecution’s case.

Turner’s testimony therefore provided a framework that allowed
the jury to construe ambiguous circumstantial evidence in favor of
guilt — a reasonable construction in light of Bramblett’s confession.
With the confession there was less pressure on the jury to take a criti-
cal look at the circumstantial evidence; in other words, the inference
 BRAMBLETT v. TRUE 29
of guilt was much easier to draw. Without the confession the jury
would have been forced to confront the weaknesses in the prosecu-
tion’s case. Turner’s allegedly false testimony — that Bramblett con-
fessed to the murders — turned a hard job into an easy job for the
jury. There is thus a reasonable likelihood that Turner’s false testi-
mony could have affected the judgment of the jury. Cf. Wilson v.
Murray, 806 F.2d 1232, 1238 (4th Cir. 1986) (finding prejudice from
the admission of an improperly obtained confession where the evi-
dence "was not overwhelming and the confession undoubtedly had a
substantial effect on [the] conviction"). If Turner committed perjury,
Bramblett was prejudiced as a result.

II.

The next question is whether Bramblett is entitled to an evidentiary
hearing to determine whether Turner manufactured the confession. To
receive a hearing, Bramblett must (1) allege facts that, if true, would
entitle him to relief, (2) overcome 28 U.S.C. § 2254(e)(2)’s limita-
tions on the availability of an evidentiary hearing, and (3) establish
one of the six factors mentioned in Townsend v. Sain, 372 U.S. 293,
312 (1963). Fullwood v. Lee, 290 F.3d 663, 680-81 (2002).3 To begin
with, Bramblett’s factual allegations, if true, establish a meritorious
Napue claim, thus entitling him to relief. As noted above, a claim that
the prosecution violated Napue by presenting perjured testimony is a
form of a Brady claim. See e.g., Strickler, 527 U.S. at 280-81. A
Brady claim has three components: (1) the disputed evidence must be
favorable to the accused, (2) that evidence must have been suppressed
by the prosecution, and (3) prejudice must have ensued. Strickler, 527
3
The six Townsend factors are:
(1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported
by the record as a whole; (3) the fact-finding procedure
employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discov-
ered evidence; (5) the material facts were not adequately devel-
oped at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a
full and fair fact hearing.
Townsend, 372 U.S. at 313.
30 BRAMBLETT v. TRUE
U.S. at 281-82. Assuming Turner’s affidavit is true, Bramblett has
met this test. First, the fact that Bramblett did not make the alleged
incriminating statements is favorable to him. The fact that the prose-
cution appeared to have sufficient doubts about its case that it sought
to manufacture testimony is also favorable to Bramblett. Second, if
Turner’s affidavit is true, the Commonwealth manufactured evidence
against Bramblett and suppressed this fact. Third, as I discuss in part
I, Turner’s trial testimony, if perjured, was prejudicial to Bramblett.

Next, 28 U.S.C. § 2254(e)(2) does not bar Bramblett from receiv-
ing an evidentiary hearing. This section, of course, places a heavy
burden on petitioners seeking evidentiary hearings when they have
"failed to develop the factual basis of a claim in State court proceed-
ings."4 28 U.S.C. § 2254(e)(2). Bramblett, however, cannot be said to
have "failed to develop the factual basis of [his] claim" in state court.
He had no chance to develop it. Bramblett raised his Napue claim in
his state habeas petition, his first opportunity to raise it after he
learned of Turner’s statement that he had perjured himself. Bramblett
was denied an evidentiary hearing in state court, and he received no
consideration of the claim there because it was procedurally defaulted
under Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974) (refusing to
review on habeas a claim that could have been, but was not, raised
at trial or on direct appeal). Bramblett’s inability to develop the facts,
and allow the credibility of Turner’s story and recantation to be
tested, did not stem from negligence or gamesmanship. Rather, it
stemmed from the Commonwealth’s alleged suppression of its own
wrongdoing in fabricating testimony. The prosecution’s success in
keeping its malfeasance secret for a time made it impossible for
Bramblett to raise his Napue claim soon enough to receive an eviden-
tiary hearing in state court. Section 2254(e)(2) is not aimed at this sort
4
When the petitioner has failed to develop the facts in state court, he
is not entitled to an evidentiary hearing unless (1) his claim is based on
a new rule of constitutional law that is retroactively applicable or (2) his
claim is based on facts that could not have been discovered earlier
through due diligence. § 2254(e)(2)(A). To get a hearing, the petitioner
must also show that "the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty of
the underlying offense." § 2254(e)(2)(B).
 BRAMBLETT v. TRUE 31
of inability or failure, which is beyond the petitioner’s control, to
develop the factual basis of a claim in state court. A petitioner has
only failed to develop the facts within the meaning of § 2254(e)(2)
when "there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel." Williams v. Taylor, 529 U.S.
420, 432 (2000). As Williams v. Taylor makes clear, when the prose-
cution’s wrongdoing, rather than the petitioner’s negligence or over-
sight, is responsible for the failure to have an evidentiary hearing in
state court, the defendant has not "fail[ed] to develop" the factual
basis of the claim within the meaning of the statute. See id. at 434-35
(noting § 2254(e)(2) does not bar a hearing for a petitioner who failed
to develop the basis for his claim in state court because "the prosecu-
tion concealed the facts"). Because Bramblett alleges that the Com-
monwealth manufactured false testimony and successfully hid this
fact from him, the Commonwealth’s actions, rather than Bramblett’s,
were the essential cause of the procedural default, and Bramblett did
not fail through his own fault to develop the factual basis for his
Napue claim in state court. Section 2254(e)(2), therefore, does not bar
an evidentiary hearing for Bramblett.

Finally, Bramblett has satisfied Townsend if the merits of the fac-
tual dispute, that is, whether Turner committed perjury, were not
resolved in state court. See Townsend, 372 U.S. at 313. Again,
because the state court found his Napue claim to be procedurally
defaulted, it did not make any factual findings relevant to this claim.
Therefore, Bramblett has established one of the Townsend factors.
Because Bramblett’s allegations of Turner’s perjury, if true, would
establish a meritorious Napue claim — and entitle Bramblett to
habeas relief — he should receive an evidentiary hearing. Cf. Beaver
v. Thompson, 93 F.3d 1186, 1190 (4th Cir. 1996) (allowing an eviden-
tiary hearing "when the petitioner alleges additional facts that, if true,
would entitle him to relief"). I would therefore vacate the denial of
the writ and remand the case for an evidentiary hearing in the district
court to determine whether the allegations in Turner’s affidavit are
true. Turner’s claim that he lied when he told the jury that Bramblett
had confessed to the Hodges murders must be tested in an evidentiary
hearing before Bramblett can be put to death. Again, I respectfully
dissent.