PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT STACY YARBROUGH,
Petitioner-Appellant,
v.
No. 07-10
GENE M. JOHNSON, Director,
Virginia Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(2:05-cv-00368-JBF)
Argued: December 6, 2007
Decided: March 17, 2008
Before NIEMEYER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Traxler and Senior Judge Hamilton joined.
COUNSEL
ARGUED: F. Nash Bilisoly, IV, VANDEVENTER & BLACK,
L.L.P., Norfolk, Virginia, for Appellant. Matthew P. Dullaghan,
Senior Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Trey R.
Kelleter, VANDEVENTER & BLACK, L.L.P., Norfolk, Virginia;
2 YARBROUGH v. JOHNSON
Jennifer L. Givens, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Rob-
ert F. McDonnell, Attorney General, Jerry P. Slonaker, Senior Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
A jury in Mecklenburg County, Virginia, convicted Robert Yar-
brough of the 1997 capital murder and robbery of Cyril Hamby, and
sentenced him to death. The Supreme Court of Virginia vacated his
sentence because of an erroneous jury instruction. On remand, a sec-
ond jury sentenced Yarbrough to death again, and the Supreme Court
of Virginia affirmed.
After exhausting state procedures for post-conviction relief, Yar-
brough filed the present petition for a writ of habeas corpus under 28
U.S.C. § 2254, asserting six grounds for relief. The district court
denied Yarbrough’s petition, but granted him a certificate of appeala-
bility with respect to his claim that his trial counsel was constitution-
ally ineffective because he failed to request that the trial court appoint
a DNA expert at public expense. We expanded the certificate of
appealability to include Yarbrough’s claim that the trial counsel was
constitutionally ineffective for inadequately investigating and present-
ing evidence in mitigation at sentencing.
For the reasons that follow, we affirm the district court’s dismissal
of Yarbrough’s two claims for which a certificate of appealability has
been issued, concluding that in denying these claims on the merits,
the Supreme Court of Virginia neither unreasonably applied clearly
established federal law nor made an unreasonable determination of
the facts. See 28 U.S.C. § 2254(d).
I
The facts, as stated by the Supreme Court of Virginia in Yarbrough
v. Commonwealth (Yarbrough I), 519 S.E.2d 602, 603-07 (Va. 1999),
YARBROUGH v. JOHNSON 3
begin with Yarbrough inviting his high-school friend, Dominic Rai-
ney, to join him in his plan to rob Cyril Hamby, the 77-year-old
owner of Hamby’s Store, located a short walk from Yarbrough and
Rainey’s homes on U.S. Route 1 in Mecklenburg County, Virginia.
An eyewitness’ testimony placed the two men walking along the
highway toward the store between 9:30 and 10:30 p.m. on May 8,
1997. The two then waited outside the store until there were no cus-
tomers inside, entered the store, and locked the door behind them.
Yarbrough, armed with a shotgun, ordered Hamby to lie on the
floor in an aisle, and, with Rainey’s help, bound Hamby’s hands
behind his back. Yarbrough shut off the store’s outside lights and
demanded that Hamby reveal where guns were hidden in the store.
When Hamby denied having any guns, Yarbrough kicked Hamby in
the head and upper arms. Yarbrough then forced open the cash regis-
ter and took the money inside. After returning to Hamby, he again
demanded to know the location of the guns. Hamby continued to deny
having any guns, at which point Yarbrough put down the shotgun,
took out a pocketknife, and proceeded to cut deeply into the front and
the back of Hamby’s neck with a sawing motion. According to Rai-
ney, Hamby pleaded with Yarbrough to stop cutting him, but Yar-
brough did not stop and inflicted at least 10 deep wounds before
rifling through Hamby’s clothing and taking his wallet. Yarbrough
and Rainey then stole beer, wine, and cigarettes, as well as the money
Yarbrough had taken from the cash register, and exited the store from
the rear. Yarbrough gave Rainey $100 and kept the remainder of the
money for himself.
The two proceeded to Rainey’s residence, where they changed
clothes, and then went to the nearby home of Conrad Dortch, where
they drank the wine from Hamby’s store and waited for Dortch to
arrive so they could buy marijuana from him. Dortch came home at
approximately 12:45 a.m. and sold Yarbrough a marijuana joint for
$10. According to Rainey, Yarbrough was "flashing" his money. Yar-
brough and Rainey then returned to Rainey’s home, where they spent
the rest of the night. The next morning, Yarbrough threw his blood-
stained tennis shoes in a trash barrel behind Rainey’s house and left.
After Hamby’s body was discovered on May 9, 1997, and an
autopsy was conducted, it was determined that Hamby had bled to
4 YARBROUGH v. JOHNSON
death from multiple deep wounds around his neck. The Common-
wealth’s medical examiner described the wounds as "entirely consis-
tent" with "an attempted beheading," but because no major arteries
were cut, it likely took several minutes for Hamby to bleed to death.
The examiner also noted the blunt force injuries on Hamby’s head
and upper arm, which were consistent with having been kicked.
A day later, Dortch informed the police of his encounter with Yar-
brough and Rainey on the night of Hamby’s murder, prompting the
police to obtain and execute a search warrant at Yarbrough’s home
where they recovered clothing and a pocketknife, both stained with
blood. Police also recovered the tennis shoes from Rainey’s home.
Subsequent forensic analysis of the items recovered, the crime
scene, and samples taken from Hamby, Yarbrough, and Rainey,
strongly supported the conclusion that both Yarbrough and Rainey
were present at the scene of the murder and that Yarbrough was most
likely the person who inflicted the fatal wounds on Hamby. DNA
tests of the shoes and clothing established a match with Hamby’s
blood, and the DNA test of the knife established a mix of Hamby and
Yarbrough’s DNA on the blade. The blood stains on Yarbrough’s
clothes were consistent with a spray of blood resulting from trauma
and were made "in close proximity to the trauma that released the
blood." Prints from Yarbrough’s tennis shoes were found near the cir-
cuit box in the store, behind the counter, and in the blood stains near
Hamby’s head. Prints from Rainey’s boots were found near Hamby’s
feet and in the living quarters of the store.
Following a four-day trial, at which the Commonwealth presented
the testimony of Rainey, other witnesses, police investigators, and
forensic experts, as well as extensive physical evidence, the jury con-
victed Yarbrough of capital murder and robbery. In exchange for his
testimony, Rainey was charged with first degree murder rather than
capital murder, and he later pleaded guilty, receiving a sentence of 50
years’ imprisonment, 25 of which were suspended.
At the sentencing phase, which followed immediately upon the
completion of the guilt phase, the Commonwealth argued that the
death penalty was appropriate for Yarbrough because his crime was
"outrageously or wantonly vile, horrible or inhuman in that it
YARBROUGH v. JOHNSON 5
involved torture, depravity of mind or an aggravated battery to the
victim." See Va. Code Ann. § 19.2-264.2. Yarbrough presented miti-
gation evidence in the form of testimony from his mother. The jury
sentenced Yarbrough to death for the capital murder conviction and
to life imprisonment for the robbery conviction.
On direct appeal, Yarbrough assigned several errors, and the Vir-
ginia Supreme Court rejected all but one. Because the trial court
failed to inform the jury during the sentencing phase that if it sen-
tenced Yarbrough to life imprisonment, he would be ineligible for
parole, the court vacated the death sentence and remanded the case for
a new sentencing trial. See Yarbrough I, 519 S.E.2d at 611-17.
The second sentencing trial took place before a newly empaneled
jury. The evidence presented at that trial is summarized by the Vir-
ginia Supreme Court in Yarbrough v. Commonwealth (Yarbrough II),
551 S.E.2d 306, 308 (Va. 2001). The Commonwealth presented evi-
dence that Yarbrough stabbed Hamby at least 10 times in the neck
and that the wounds "penetrated to the junction between the neck and
the skull at several locations on the rear of Hamby’s neck." Other evi-
dence described several blows to the head, and indicated that Hamby
was still alive during the infliction of these wounds, remaining alive
for up to 15 minutes as he bled to death. The Commonwealth also
produced Rainey, who testified that Hamby begged for mercy while
Yarbrough continued his "sawing motion" on Hamby’s neck. In addi-
tion, several family members and neighbors testified to Hamby’s
warmth, generosity, kindness, and thoughtfulness, as well as to the
devastating impact his murder had on his family.
In mitigation, Yarbrough again presented testimony from his
mother, who indicated that Yarbrough had lived with her his entire
life except for two years when he lived with his grandmother. Yar-
brough also called a prison counselor to testify that he had not
received any adverse disciplinary reports while incarcerated. In open-
ing and closing arguments, Yarbrough’s counsel, Buddy Ward,
attempted to cast doubt on Rainey’s veracity and urged the jury to
"stop the killing" by sparing Yarbrough’s life.
After less than an hour of deliberation, the jury sentenced Yar-
brough to death, finding explicitly that the murder was "vile" and that
6 YARBROUGH v. JOHNSON
the mitigating evidence did not outweigh this aggravating factor. On
his second direct appeal, the Virginia Supreme Court affirmed, Yar-
brough II, 551 S.E.2d at 399-400, and the United States Supreme
Court denied Yarbrough’s petition for a writ of certiorari, Yarbrough
v. Virginia, 535 U.S. 1060 (2002).
Seeking state post-conviction relief, Yarbrough filed a petition for
a writ of habeas corpus with the Supreme Court of Virginia on July
12, 2002. The petition raised several claims, including, as relevant
here, claims that Yarbrough’s trial counsel (1) was ineffective by fail-
ing adequately to challenge the Commonwealth’s forensic evidence,
specifically by failing to request appointment of a DNA expert at pub-
lic expense, and (2) was ineffective by failing adequately to investi-
gate and present relevant evidence in mitigation at the second
sentencing trial. The Virginia Supreme Court rejected Yarbrough’s
claims and dismissed his petition in an unpublished opinion. Yar-
brough v. Warden (Yarbrough III), No. 021660 (Va. May 29, 2003).
Relying in part on the decision of the United States Supreme Court
in Wiggins v. Smith, 539 U.S. 510 (2003), which was handed down
on June 26, 2003, Yarbrough petitioned the Virginia Supreme Court
for rehearing, claiming that his trial counsel was deficient in failing
to investigate and present mitigation evidence. The Virginia Supreme
Court granted Yarbrough’s petition for a rehearing limited to the miti-
gation evidence claim, and it ordered the Circuit Court of Mecklen-
burg County to conduct an evidentiary hearing. See Va. Code Ann.
§ 8.01-654(C).
At the hearing, Yarbrough presented testimony from his trial coun-
sel, his mother, his father, his mother’s ex-boyfriend, his grand-
mother, his cousin, and his half-sister. The Commonwealth recalled
Yarbrough’s trial counsel and presented testimony from his trial
counsel’s investigator. Following the hearing, the Circuit Court sub-
mitted proposed findings of fact and conclusions of law to the Vir-
ginia Supreme Court, recommending a finding that Yarbrough’s trial
counsel’s performance was constitutionally deficient but that it did
not result in prejudice to the outcome of the case and therefore that
Yarbrough was not entitled to relief. Yarbrough v. Warden (Yar-
brough IV), No. 021660 (Va. Cir. Ct. May 6, 2004).
YARBROUGH v. JOHNSON 7
The Supreme Court of Virginia adopted most of the Circuit Court’s
recommendations for findings of fact, as well as its recommendation
that there was no prejudice, and it dismissed Yarbrough’s petition.
Yarbrough v. Warden (Yarbrough V), 609 S.E.2d 30, 40 (Va. 2005).
Because the Virginia Supreme Court found no prejudice, it did not
review or adopt the Circuit Court’s recommended conclusion that
Yarbrough’s trial counsel was deficient. Id. at 38 n.2.
Yarbrough commenced the present action by filing a petition for a
writ of habeas corpus under 28 U.S.C. § 2254, raising six issues,
including the ineffective assistance claims for failure to seek public
funds for a DNA expert and for failure to investigate and present miti-
gating evidence. The district court referred the petition to a magistrate
judge, who submitted a report and recommendation that all six claims
be denied and that Yarbrough’s petition be dismissed. Yarbrough v.
Johnson (Yarbrough VI), No. CIV A 205CV368, 2006 WL 2583418
(E.D. Va. Sept. 5, 2006). The district court adopted most of the mag-
istrate judge’s recommendations, modified others, and arrived at the
same conclusion that all six of Yarbrough’s claims should be denied.
Yarbrough v. Johnson (Yarbrough VII), 490 F. Supp. 2d 694 (E.D.
Va. 2007). Concluding that Yarbrough’s DNA evidence claim was his
"strongest argument," the district court granted Yarbrough’s motion
for a certificate of appealability on that issue. Id. at 740-41. By order
dated October 2, 2007, we expanded the certificate of appealability to
include Yarbrough’s mitigation evidence claim.
II
Yarbrough contends first that he was denied effective assistance of
counsel during the guilt phase of his state trial because "DNA evi-
dence was critical to the prosecution and the defense in this case not
involving a confession" and his counsel "fail[ed] to request funds to
engage an expert in DNA collection, testing and analysis." The failure
to seek funds to hire an expert, he argues, fell below "prevailing pro-
fessional norms" as they are defined by the American Bar Associa-
tion’s Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases ("ABA Guidelines"), which he
asserts require that "expert assistance should always be requested and
provided" for the "proper preparation of capital cases" (emphasis
8 YARBROUGH v. JOHNSON
added), and which are not to be taken as "aspirational" but as a mini-
mum standard under the Sixth Amendment.
The Commonwealth of Virginia contends that the district court
properly dismissed Yarbrough’s habeas claim because Yarbrough
failed "to establish that his trial counsel successfully could have
moved for the appointment of such an expert." Adopting the district
court’s conclusion that public funds for a DNA expert would be avail-
able only if Yarbrough established a "particularized need" for the
expert under Husske v. Commonwealth, 476 S.E.2d 920 (Va. 1996),
Virginia argues that because Yarbrough could not establish such a
need, his counsel’s "failure to move for the appointment [could] not
have been deficient."
Yarbrough first presented his ineffective assistance of counsel
claim to the Virginia Supreme Court in a petition for a writ of habeas
corpus filed on July 12, 2002, relying on Strickland v. Washington,
466 U.S. 668 (1984).1 In dismissing the claim the Supreme Court
ruled:
The Court holds claim (III)(C)(1) satisfies neither the "per-
formance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has failed to allege any
facts that would suggest that counsel’s performance was
inadequate. Petitioner has failed to show a particularized
need for the assistance of an independent expert or that he
was prejudiced by the lack of expert assistance. Husske v.
Commonwealth, 252 Va. 203, 213, 476 S.E.2d 920, 926
(1996). Furthermore, petitioner has failed to identify the
items that were not tested by the Commonwealth or how
testing of those items would disprove petitioner’s guilt.
Thus, petitioner has failed to demonstrate how counsel was
ineffective for failing to obtain an independent expert and
failing to request that the unspecified items undergo testing.
1
Strickland held that to establish a claim under the Sixth Amendment
for ineffective assistance of counsel, the petitioner must demonstrate
"that counsel’s performance was deficient" and that "the deficient perfor-
mance prejudiced the defense." Strickland, 466 U.S. at 687; see also
Emmett v. Kelly, 474 F.3d 154, 160 (4th Cir. 2007).
YARBROUGH v. JOHNSON 9
Furthermore, he has failed to demonstrate that there is a rea-
sonable probability that, but for counsel’s alleged error, the
result of the proceeding would have been different.
Yarbrough III, No. 021660, op. at 8-9.
In considering this claim again on a petition under 28 U.S.C.
§ 2254, a federal court owes considerable deference to the judgment
entered in the state court proceeding. See 28 U.S.C. § 2254(d), (e).
Section 2254(d) provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adju-
dicated on the merits in State court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) 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.
And § 2254(e)(1) instructs that "a determination of a factual issue
made by a State court shall be presumed to be correct" and that the
petitioner "shall have the burden of rebutting the presumption of cor-
rectness by clear and convincing evidence."
A state decision is "contrary to" clearly established Supreme Court
precedent if "the state court applies a rule that contradicts the govern-
ing law set forth in [the Supreme Court’s] cases" or "confronts a set
of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [its]
precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Meyer
v. Branker, 506 F.3d 358, 364-65 (4th Cir. 2007). "An ‘unreasonable
application’ occurs when a state court identifies the correct governing
10 YARBROUGH v. JOHNSON
legal principle from [the Supreme] Court’s decisions but unreason-
ably applies that principle to the facts of [a] petitioner’s case." Rom-
pilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation marks
omitted); Lenz v. Washington, 444 F.3d 295, 300 (4th Cir. 2006). In
applying these standards when reviewing a state decision under
§ 2254(d), the question, therefore, is not "whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable — a substantially higher threshold."
Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007) (citing Williams,
529 U.S. at 410); Strong v. Johnson, 495 F.3d 134, 140 (4th Cir.
2007).
We review the district court’s dismissal of a habeas petition de
novo. Meyer, 506 F.3d at 364.2
In presenting his ineffective assistance of counsel claim to the dis-
trict court, Yarbrough argued that the performance of his trial counsel,
Buddy Ward, was deficient because, inasmuch as the prosecution’s
case depended on DNA evidence, it was "incumbent on competent
counsel to make some attempt to, at the least, investigate the DNA
analysis and discredit the scientific evidence through an independent
expert and education on DNA analysis." Yarbrough maintained, "Had
the forensic evidence been tested and found to be flawed or even
false, only the testimony of an admitted felon with a deal would have
placed [him] inside Mr. Hamby’s store that night."
Identifying areas in which an expert could have assisted counsel,
Yarbrough pointed to multiple alleged errors or deficiencies in the
Commonwealth’s forensic analysis. For example, certain samples
were tested at only 10 genetic loci, instead of 23, because the State
only had the capability to test at the 10. Certain samples failed to
yield interpretable results. With respect to certain results, no statistical
2
The district court reviewed the Virginia Supreme Court judgment de
novo because it concluded that the Supreme Court had incorrectly
observed that Yarbrough had failed to identify specific items that were
not tested but should have been. Yarbrough VII, 490 F. Supp. 2d at 714-
15. Because our review of the district court is de novo, we also examine
the state court’s judgment directly, as the district court did, giving it the
deference that is due in the circumstances.
YARBROUGH v. JOHNSON 11
probabilities were given. Finally, certain items were not tested at all.
But Yarbrough never explained how the test results that were
obtained and that pointed only at him as the murderer could be
reversed or ignored, nor how an expert’s review might otherwise have
helped him in the context of these alleged deficiencies. He simply
hoped that the expert might find something to help his case.
Yarbrough also never explained how he overcame "the presump-
tion that, under the circumstances, the challenged action [of his attor-
ney] might be considered sound trial strategy," namely, a decision to
focus on advancing arguments that counsel could actually make or
reasonably found more persuasive. Strickland, 466 U.S. at 689 (inter-
nal quotation marks omitted). This presumption was especially strong
here in view of the fact that in Virginia state funds were not available
for an expert witness unless a defendant was able to show a "particu-
larized need" for the expert testimony. See Husske, 476 S.E.2d at 925.
And under state law, such a "particularized need" could not have been
demonstrated by conclusory assertions, but rather had to be demon-
strated by a specific showing of how expert testimony would assist in
the defense. Id. at 925-26; see also Commonwealth v. Sanchez, 597
S.E.2d 197, 200 (Va. 2004). In Sanchez, the Virginia Supreme Court
denied a request for state funds for an expert specifically because the
defendant’s demonstration of need was not particularized and rested
on nothing more than the petitioner’s "hope or suspicion." In accor-
dance with Strickland, we presume that Ward knew of these barriers
and developed a "sound trial strategy" in light of his inability to sur-
mount them. And Yarbrough has given us no basis to rebut that pre-
sumption.
Yarbrough faced overwhelming forensic evidence that tied him to
the scene, that corroborated Rainey’s testimony, and that placed him
(Yarbrough) in the role of primary perpetrator. Without any indication
or theory about how the DNA evidence might be wrong, any expecta-
tion of what benefit might be obtained from retaining a DNA expert
could only be characterized as a dim hope. Ward was fighting an
uphill battle for Yarbrough, and he performed as ably as one could
expect in the circumstances. This is meaningful when recognizing that
Ward was a seasoned criminal lawyer who had tried more capital
cases than he could remember.
12 YARBROUGH v. JOHNSON
Not only did the Virginia Supreme Court have all of this informa-
tion before it, the district court separately and exhaustively examined
Ward’s cross-examination of the Commonwealth’s forensic experts,
noting that he effectively subjected the Commonwealth’s evidence to
adversarial testing such that the proper functioning of the adversarial
process was not undermined and could be relied on to produce a just
result. Yarbrough VII, 490 F. Supp. 2d at 724-27; see also Strickland,
466 U.S. at 685-86. While the district court did acknowledge that
Ward made some errors, which revealed limits of his knowledge, it
did not conclude that these errors in any way lessened Ward’s ability
to test the Commonwealth’s case and to ensure that the trial was reli-
able.
In view of these facts, we cannot say that the Virginia Supreme
Court’s conclusion that Ward’s performance was not deficient was an
unreasonable application of federal law, particularly Strickland. See
28 U.S.C. § 2254(d)(1). In determining whether Ward’s performance
was constitutionally deficient, "a court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide range of reason-
able professional assistance," in order to avoid "the distorting effects
of hindsight." Strickland, 466 U.S. at 689. As the Supreme Court in
Strickland stated:
A convicted defendant making a claim of ineffective assis-
tance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable profes-
sional judgement. The court must then determine whether,
in light of all the circumstances, the identified acts or omis-
sions were outside the wide range of professionally compe-
tent assistance.
***
In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of defer-
ence to counsel’s judgments.
Id. at 690-91.
YARBROUGH v. JOHNSON 13
To argue that Ward’s performance was "outside the wide range of
professionally competent assistance," Yarbrough relies heavily, and
almost exclusively, on the ABA Guidelines, which were originally
drafted in 1989 and revised in 2003. He argues that the ABA Guide-
lines establish "prevailing professional norms" that, when applied to
measure Ward’s performance, render it constitutionally deficient. He
asserts that the ABA Guidelines require that "expert assistance should
always be requested and provided" for the proper preparation of capi-
tal cases (emphasis added), and that the rules are "not aspirational,"
but minimum constitutional standards. The district court rejected this
argument, holding that the failure to comply with the ABA Guidelines
regarding the requesting of funds for expert assistance does not estab-
lish counsel’s performance as constitutionally deficient per se. See
Yarbrough VII, 490 F. Supp. 2d at 723-24.
We agree. Indeed, the ABA Guidelines themselves deliver a mixed
message about whether they are aspirational or mandatory in every
circumstance. On the one hand they would impose on defense counsel
a mandatory, non-aspirational, minimum requirement to request pub-
lic funds and obtain expert assistance in the preparation of virtually
every capital case, because everywhere that the Guidelines direct
what counsel "should" do, they advise that the term "should" is to be
construed as a mandatory term. See ABA Guidelines intro. (1989)
("‘Should’ is used throughout as a mandatory term and refers to activ-
ities which are minimum requirements"). In this manner, the ABA
Guidelines appear to mandate that "[u]tilization of experts has
become the rule, rather than the exception, in proper preparation of
capital cases," id. 1.1 cmt., and "counsel should demand on behalf of
the client all necessary experts for preparation of both phases of trial,"
id. 11.4.1 cmt. On the other hand, the Guidelines also seem to
acknowledge that a defendant cannot routinely have experts, because
to have them requires calling upon local jurisdictions "to authorize
sufficient funds to enable counsel in capital cases to conduct a thor-
ough investigation . . . and to procure the necessary expert witnesses
and documentary evidence," id. 8.1 cmt., which suggests an aspira-
tional nature to the Guidelines. The Guidelines observe that "funds
available to appointed defense counsel are substantially below those
available to the prosecution" and that "[t]his inequity is unconsciona-
ble." Id. In short, the ABA Guidelines say that defense counsel should
— now meaning only "should" — try to use experts more routinely,
14 YARBROUGH v. JOHNSON
but that this goal depends on government funding which, for now,
does not allow this goal to be achieved routinely. This therefore can
hardly be the mandated minimum standard, as Yarbrough claims.
Moreover, were we to treat the ABA Guidelines as establishing the
minimum constitutional floor of "prevailing professional norms" for
determining ineffective assistance of counsel, we would be forced to
hold that a defense attorney who failed to obtain the expert assistance
he "should" have secured was constitutionally deficient, even if the
jurisdiction in question would not have provided funds for such an
expert had the attorney asked for them. As the district court noted, the
practice of providing defense attorneys "‘few, if any, resources’ to
hire experts . . . has plainly been held to be constitutional and has con-
tinued for decades." Yarbrough VII, 490 F. Supp. 2d at 723. It simply
is not the case that a lawyer who fails to request funds that are not
available, or to which his client is not entitled under governing local
law, has rendered ineffective assistance of counsel.
More fundamentally, to hold defense counsel responsible for per-
forming every task that the ABA Guidelines say he "should" do is to
impose precisely the "set of detailed rules for counsel’s conduct" that
the Supreme Court has long since rejected as being unable to "satis-
factorily take account of the variety of circumstances faced by
defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant." Strickland, 466 U.S. at 688-
89. Such a categorical holding would lead to needless and expensive
layers of process with the unintended effect of compromising process.
Would it lead to the requirement, for example, that anytime the gov-
ernment uses a sample of DNA in prosecuting a case, the defense
lawyer would have to retain a DNA expert, regardless of the expert’s
likely contribution to the defense? Would such a rule similarly require
a defense lawyer to retain experts every time the government intro-
duces expert evidence that a substance is, for example, cocaine? Rec-
ognition of the ABA Guidelines as the minimum prevailing
community standard would transform defense lawyers’ judgments
into mindless defensive reactions to a potential habeas claim,
divorced from the individualized needs of professional representation.
Those needs call for more nuanced responses than can be provided by
following preestablished mechanical rules of representation. See Roe
v. Flores-Ortega, 528 U.S. 470, 479 (2000); Strickland, 466 U.S. at
YARBROUGH v. JOHNSON 15
688-89 (cautioning against the fallacy of treating guidelines as a
"checklist for judicial evaluation of attorney performance"); Meyer,
506 F.3d at 372 (same); id. at 371 ("[T]he touchstone of effective rep-
resentation must be sound, evidence-based judgment, rather than a set
of mandates counsel must programmatically follow without devia-
tion"); Walker v. True, 401 F.3d 574, 583 n.7 (4th Cir. 2005) (noting
that the Strickland inquiry "does not entail the application of per se
rules" derived from ABA standards), vacated on other grounds, 546
U.S. 1086 (2006).
While the ABA Guidelines provide noble standards for legal repre-
sentation in capital cases and are intended to improve that representa-
tion, they nevertheless can only be considered as a part of the overall
calculus of whether counsel’s representation falls below an objective
standard of reasonableness; they still serve only as "guides," Strick-
land, 466 U.S. at 688, not minimum constitutional standards.
Inasmuch as we conclude that the Virginia Supreme Court’s appli-
cation of Strickland to this case was not unreasonable, we affirm the
district court’s decision dismissing Yarbrough’s claim that his coun-
sel’s performance was deficient.
Because Yarbrough has not satisfied the deficient-performance
prong of Strickland, we only briefly discuss the prejudice prong.
Although an expert might have helped Buddy Ward poke a few more
holes in the Commonwealth’s case than he accomplished on his own,
there is no basis to assume that any such minor victories would have
created a reasonable probability that Yarbrough would have been
acquitted. Short of expert testimony revealing gross incompetence or
a criminal conspiracy to falsely implicate Yarbrough — and there is
certainly no reasonable probability of either — it is most unlikely
that, even with an expert, Yarbrough could have overcome the totality
of evidence against him, which included not just forensic evidence,
but also Rainey’s testimony, eyewitness testimony placing him in the
vicinity of the store, and Dortch’s testimony regarding his actions
after the murder.
At bottom, we hold that Yarbrough has established neither the per-
formance prong nor the prejudice prong of Strickland, and his first
claim for habeas relief was properly denied.
16 YARBROUGH v. JOHNSON
III
Yarbrough also contends that his trial counsel performed below an
objective standard of reasonableness because he failed adequately to
investigate and present relevant evidence in mitigation at the second
sentencing trial and that, but for this failure, there was a reasonable
probability that the jury would not have sentenced him to death. See
Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Strickland, 466 U.S.
at 690, 694.
When this claim was first presented to the Supreme Court of Vir-
ginia, the Court denied it on the merits, holding that Yarbrough had
satisfied neither the performance prong nor the prejudice prong of
Strickland because he had failed "to allege that such mitigation evi-
dence was available to counsel or that petitioner desired such evi-
dence to be presented at sentencing." The Court also gave as a reason
the fact that such mitigation evidence could have been "cross-purpose
evidence capable of aggravation as well as mitigation." Yarbrough III,
No. 021660, op. at 13-14 (citing Barnes v. Thompson, 58 F.3d 971,
980-81 (4th Cir. 1995)).
After the United States Supreme Court decided Wiggins, the Vir-
ginia Supreme Court granted Yarbrough’s petition for rehearing and
directed the Circuit Court of Mecklenburg County to conduct an evi-
dentiary hearing on the claim. The facts developed at this hearing are
related by the Virginia Supreme Court in Yarbrough V, 609 S.E.2d at
33-36.
The Court described how Yarbrough’s mother, Lorraine Mitchell,
testified that when Yarbrough was seven or eight years old, she
became addicted to crack cocaine, first as a "functional" addict who
managed to provide for herself and her children and later as a "dys-
functional" addict who permitted bills to go unpaid and the cleanli-
ness of her home, herself, and her children to deteriorate. She and her
children — Yarbrough and his half-sister Dorian Jenkins, who was
six years Yarbrough’s junior — were eventually evicted from their
home in Camden, New Jersey, and forced to move to a drug-infested
low-income housing project. Also, Dorian Jenkins’ father, Willis Jen-
kins, eventually moved out of the home, leaving only Mitchell and the
two children in the house.
YARBROUGH v. JOHNSON 17
Mitchell testified that after she hit "rock bottom" in the summer of
1989 or 1990, when Yarbrough was eleven or twelve years old, Yar-
brough’s father, Robert Yarbrough, arranged for Yarbrough to live
with relatives and attend school in Illinois for a year. That same year,
Willis Jenkins permanently removed Dorian from Mitchell’s care.
When Yarbrough returned from Illinois the following summer, Mitch-
ell had substantially recovered from her addiction, and she and Yar-
brough thereafter lived in New Jersey, the Eastern Shore of Virginia,
and finally Mecklenburg County, Virginia. During this period Yar-
brough sometimes lived with his grandmother in Mecklenburg
County.
Willis Jenkins, Robert Yarbrough, and Yarbrough’s grandmother,
Annie Mae Riley, also testified and substantially supported Mitchell’s
testimony. All four witnesses agreed that Mitchell had been addicted
to crack cocaine and that she had neglected her parental responsibili-
ties as a result. But they also testified that Yarbrough had always been
a relatively well-behaved and responsible person and that there was
never any indication, hint, or suggestion that Yarbrough had been
physically or sexually abused. Evidence showed that when Yar-
brough’s mother was unable to care for herself or her children, Yar-
brough would often do so, seeing to it that his half-sister got
something to eat or was safely near her mother before he left for
school.
Yarbrough’s final two witnesses, his cousin Anthony Riley and his
half-sister Dorian Jenkins, gave testimony about events that occurred
when they were young children, no more than 14 and 5 years old,
respectively. Their testimony roughly tracked that of the adults,
although it painted an even harsher picture about conditions when
Yarbrough and his half-sister lived with Mitchell in New Jersey.
Buddy Ward, Yarbrough’s trial counsel, testified that both he and
his investigator interviewed Yarbrough, Mitchell, and Mitchell’s
mother extensively, and that they conducted a "deep background
check" that involved school and medical records from New Jersey
and Virginia. According to Ward, none of the people interviewed
were willing to say anything negative to him about Yarbrough’s
childhood or Mitchell’s parenting. The picture Ward got from his
investigation was simply that Mitchell had tried to be a good mother
18 YARBROUGH v. JOHNSON
but encountered problems and hard times, so she sent Yarbrough to
live with her mother temporarily while she worked through her diffi-
culties. In addition, Ward testified that a court-appointed psycholo-
gist, Dr. Evan Nelson, examined Ward and obtained some "clues" as
to Mitchell’s drug problems and a possible mitigation case based on
maternal neglect. But Nelson also warned Ward not to call him as an
expert witness to connect Yarbrough’s upbringing to his crime,
because in his opinion Yarbrough was "dangerous."
In response to the testimony given at the hearing by the Yarbrough
family members, Ward testified that he had been aware of most of the
circumstances they described, except the extent of Mitchell’s drug
use. While he acknowledged that he would have liked to have pre-
sented some of the lay testimony, particularly that of Yarbrough’s
half-sister Dorian Jenkins, he remained concerned that the testimony
would have been a double-edged sword because it would have given
the Commonwealth an opportunity to argue that Yarbrough deserved
the death penalty not only due to the "vileness" of his crime, but also
because he posed a "future danger." See Va. Code Ann. § 19.2-264.2.
After receiving the testimony, the Circuit Court of Mecklenburg
County submitted proposed findings of fact to the Virginia Supreme
Court and recommended finding that Ward had been deficient in fail-
ing to uncover, during his investigation, the full extent of Yarbrough’s
childhood difficulties but that Yarbrough had failed to establish preju-
dice because, after weighing the totality of mitigation evidence
against the aggravating evidence, there was no reasonable probability
that the jury would not have sentenced him to death. Yarbrough IV,
No. 021660, op. at 16-20. The Supreme Court of Virginia accepted
most of the Circuit Court’s proposed factual findings and adopted its
recommendation to deny Yarbrough’s claim because he did not dem-
onstrate prejudice. Yarbrough V, 609 S.E.2d at 37-40. The Supreme
Court did not adopt the Circuit Court’s conclusion that Yarbrough had
established deficient performance and expressed no opinion as to that
dimension of the claim. Id. at 38 n.2.
Again, federal review of the Virginia Supreme Court’s judgment is
limited to whether the judgment was "contrary to, or involved an
unreasonable application of, clearly established" Supreme Court pre-
cedent, or was "based on an unreasonable determination of the facts
YARBROUGH v. JOHNSON 19
in light of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d).
Yarbrough argues that the Virginia Supreme Court "unreasonably
applied" federal law because it "failed to weigh the mitigating evi-
dence in this case independently and appropriately; instead, it merely
compared it to that present in Wiggins and determined that it did not
stack up." Yarbrough VI, 2006 WL 2583418, at *13. The district court
"summarily" rejected this claim, observing that the state court did not
compare the facts of Wiggins, Williams, Rompilla, and Strickland
with the facts of Yarbrough’s case "in a checklist fashion," but rather
"merely for illustrative purposes," and that it weighed the totality of
mitigating evidence against the evidence in aggravation and found no
reasonable probability of a different result. Yarbrough VII, 490 F.
Supp. 2d at 702. The district court concluded that it was "readily
apparent that Yarbrough ha[d] failed to set forth an unreasonable
application of United States Supreme Court precedent." Id.
We agree with the district court. The Virginia Supreme Court did
not apply federal law unreasonably when it compared Yarbrough’s
evidence to that in Wiggins or Williams in order to evaluate its rela-
tive strength and ability to offset the aggravating evidence Yarbrough
faced and to show a reasonable probability of a different result.
Indeed, it was appropriate for the Virginia Supreme Court to have
observed that unlike in Wiggins and Williams, Yarbrough presented
no evidence at all of a diminished mental capacity, nor did he present
any evidence to support a finding that he had been physically or sexu-
ally abused. Yarbrough V, 609 S.E.2d at 40. Mental capacity and
extreme abuse were significant factors in the United States Supreme
Court’s determination that Wiggins and Williams had established
prejudice, as such evidence was "powerful" in offsetting the State’s
evidence in aggravation in each case. See Wiggins, 539 U.S. at 534-
38; Williams, 529 U.S. at 396-98; see also Rompilla, 545 U.S. at 390-
93. When mitigation evidence presents significantly less hardship
than that found in Wiggins, Williams and Rompilla, however, it fol-
lows that the evidence is significantly less "powerful." The question
a reviewing court must answer in determining whether a petitioner
was prejudiced by a failure to present such evidence, then, is not
whether the evidence was as "powerful" as the mitigation evidence in
other cases, but rather whether the evidence was "powerful" enough
20 YARBROUGH v. JOHNSON
to offset the aggravating evidence and demonstrate a reasonable prob-
ability of a different result in the petitioner’s case.
The Supreme Court of Virginia concluded that Yarbrough’s mitiga-
tion evidence was not "powerful" enough, when weighed against the
State’s evidence in aggravation, to demonstrate a reasonable probabil-
ity of a different result. As the Court explained:
The evidence in aggravation at Yarbrough’s second penalty
phase proceeding included the brutal nature of the attack on
Hamby, a 77-year old man, which appeared to be an
attempted decapitation. Also in aggravation was the fact that
Hamby was alive when all ten of the knife wounds were
inflicted on him, and that he may have lived for 15 minutes
as he bled to death. The evidence also showed that Yar-
brough continued to cut Hamby’s neck in a sawing motion
even after Hamby pleaded with Yarbrough to stop cutting
him.
Yarbrough V, 609 S.E.2d at 39-40; see also id. at 32-33 (describing
additional testimony from Hamby’s family, friends, neighbors and
customers). Weighing this evidence against the totality of Yar-
brough’s evidence in mitigation, the Virginia Supreme Court held that
the record failed to demonstrate a reasonable probability of a different
result. Id. at 40.
What is especially lacking from Yarbrough’s claim is any evidence
that attributes his crime to his suboptimal childhood. See Wiggins,
539 U.S. at 535 ("[E]vidence about the defendant’s background and
character is relevant because of the belief, long held by this society,
that defendants who commit criminal acts that are attributable to a
disadvantaged background . . . may be less culpable than defendants
who have no such excuse") (emphasis added) (internal quotation
marks omitted). Yarbrough’s evidence establishes that he came from
a disadvantaged background, but offers no support for the inference
that his murder of Hamby was somehow attributable to that back-
ground. To the contrary, all those who testified about his disadvan-
taged background also maintained generally that he was a
fundamentally decent, well-behaved child and young man.
YARBROUGH v. JOHNSON 21
In the absence of any extreme abuse, deprivation, or mental defi-
ciency that would readily permit a jury to attribute Yarbrough’s acts
to his background, or in the absence of any expert testimony to con-
nect Yarbrough’s upbringing to the crime — a connection that Ward
deliberately chose not to draw because of its double-edged nature —
we cannot conclude that there was a reasonable probability that a jury
would decide Yarbrough’s fate differently if it heard this evidence.
Indeed, it seems reasonably probable that the jury would wonder why,
after so many years of being mature and responsible beyond his years
to care for his mother and his sister when necessary, Yarbrough sud-
denly lashed out and committed such a vile act of violence against an
elderly man. A jury hearing this evidence might therefore be led to
find Yarbrough more culpable for his criminal acts, rather than less.
See Bowie v. Branker, 512 F.3d 112, 121 (4th Cir. 2008); Moody v.
Polk, 408 F.3d 141, 152 (4th Cir. 2005).
Considering the Virginia Supreme Court’s weighing of the evi-
dence and the deficiencies in the mitigation evidence available, we
conclude that its decision was not an unreasonable application of fed-
eral law.
Yarbrough also takes issue with several factual findings made by
the Virginia Supreme Court. But he has offered no new evidence in
rebuttal. He simply contests determinations made by the Court, point-
ing to other portions of the evidentiary hearing transcript that, in his
view, support the characterization of the facts he prefers.
The Supreme Court of Virginia’s factual findings regarding the
evidence in mitigation are, of course, presumptively correct. See 28
U.S.C. § 2254(e)(1). Moreover, they appear to us to be substantially
correct, or if not correct, at least a reasonable summation of the testi-
mony presented at the evidentiary hearing. See id. § 2254(d)(2).
Accordingly, we affirm the district court’s judgment that the
Supreme Court of Virginia did not unreasonably apply clearly estab-
lished federal law in rejecting Yarbrough’s claim of prejudice due to
Ward’s failure to present additional mitigating evidence at sentencing
and that the Virginia Supreme Court’s decision was not based on an
unreasonable determination of the facts.
22 YARBROUGH v. JOHNSON
Therefore, on the two claims included within the certificate of
appealability, we affirm.
AFFIRMED