Smith v. Angelone

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROY BRUCE SMITH,
Petitioner-Appellant,

v.
No. 96-7
RONALD ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-93-710-3)

Argued: March 3, 1997
Decided: April 24, 1997

Before NIEMEYER, LUTTIG, and MOTZ,
Circuit Judges.

_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Michele Jill Brace, VIRGINIA CAPITAL REPRESEN-
TATION RESOURCE CENTER, Richmond, Virginia, for Appellant.
John H. McLees, Jr., Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Barbara L. Hartung, Mark E. Olive, VIRGINIA CAPITAL
REPRESENTATION RESOURCE CENTER, Richmond, Virginia,
for Appellant. James S. Gilmore, III, Attorney General of Virginia,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Roy Bruce Smith was convicted of murdering Manassas Police
Sergeant John Conner and sentenced to death. After unsuccessfully
appealing his conviction and sentence, and pursuing a collateral
attack
in state court, he petitioned the district court for a writ of
habeas cor-
pus. We affirm the district court's denial of habeas relief.

I.

A Virginia jury convicted Smith of the willful, deliberate, and
pre-
meditated killing of Sgt. Conner on July 24, 1988. Concluding that
Smith's crime was vile and that Smith presented a future danger,
the
jury recommended a sentence of death. The trial court entered that
sentence on May 26, 1989. The Virginia Supreme Court affirmed the
conviction and sentence, Smith v. Commonwealth , 389 S.E.2d 871
(1990), and the United States Supreme Court denied Smith's petition
for a writ of certiorari. Smith v. Virginia, 498 U.S. 881 (1990).
Smith
filed a petition for habeas corpus with the state court, which
dismissed
it on August 19, 1991. After Smith unsuccessfully appealed to the
Virginia Supreme Court, the Supreme Court again denied certiorari.
Smith v. Virginia, 506 U.S. 848 (1992). On October 22, 1993, Smith
petitioned for a writ of habeas in federal court pursuant to 28
U.S.C.
§ 2254. The district court denied the writ on June 10, 1996 and
Smith
now appeals to this court.

The underlying facts are simple and tragic. On July 24, 1988, after
engaging in an ongoing dispute with his wife, Smith drank
prodigious
amounts of beer and then returned to his Manassas, Virginia home.
He strapped on two loaded pistols (a .357 magnum and a .44 mag-
num) and took a loaded assault rifle with him out to his front
stoop.

2
Smith shot into the air with his rifle. When neighbors complained,
Smith said "[W]ait 'til I start shooting people." Smith's neighbors
recalled that he also said "I hope somebody calls the police
because
I will shoot the first one that arrives and I hope they shoot me in
return."

Smith reentered his house. Not surprisingly, his neighbors tele-
phoned the police and warned them that Smith was armed and poten-
tially dangerous. When Smith noticed that a motion sensitive light
had been triggered in his backyard, he went outside again to
investi-
gate.

The Supreme Court of Virginia well described the events that fol-
lowed:

Just before 9:00 p.m., a number of police officers arrived on
the scene and parked where their vehicles would not arouse
Smith's suspicions. Officer Anderson, in one of the units,
observed Smith "sitting on his front porch." Anderson
directed the dispatcher to "[h]ave a unit cruise around . . .
to the rear of the townhouses." The dispatcher relayed the
order to Sgt. John Conner, a uniformed officer, who indi-
cated that "he was en route." At this point, Smith "was still
on [his] front steps," but when "some person . . . started
across the street," Smith "immediately got up" and went
inside. In a few moments, Sgt. Conner reported on his porta-
ble radio: "I've got him in sight he's coming out the back
door." Other officers proceeded toward the rear of the
house, and one of them, James K. Ryan, heard Sgt. Conner
say: "Drop the rifle, drop the rifle now." Ryan then heard
"gunfire going off," consisting of "eight to 12 . . . real
sharp
. . . cracks," followed by "a short pop and after that . . .
there
was a succession of real sharp cracks again."
Ryan heard a man "groaning or . . . moaning" and, when he
ran around the end of a fence separating Smith's back yard
from his neighbor's, he saw Sgt. Conner lying on the ground
in a "bare spot in the alleyway." Ryan observed "a lot of
blood around [Conner's] head and two wounds in his back."
Ryan left Conner in the care of another officer and went to

3
 help subdue Smith, who was struggling with several officers
some twenty to twenty-five feet from Conner's location.

Officer Steven Bamford "started up the alleyway" after he
heard the shots fired. When he arrived at the rear of Smith's
house, he saw Smith "crouching down [or sitting] next to the
deck" with "a long barreled weapon laid across his lap." A
light above the door to Smith's house "shown back out onto
the alleyway and that yard, [and] illuminated that area."
As Bamford "took a step," Smith saw him and tried to "put
a magazine in the bottom of the weapon." Bamford
attempted to "get back out of the way," but slipped and fell.
When he regained his feet, Smith started to get up, and
Bamford pointed his shotgun at him and yelled, "[d]rop it"
several times. Smith said, "I give up, I give up" and dropped
his rifle, which was still equipped with a bayonet. Bamford
told Smith to get down on his knees. Smith complied, but
when Bamford ordered him to "put his hands on the ground
and walk out, to lay flat," Smith refused. A struggle ensued
involving several officers, who were unable to "get the rifle
from under [Smith]." When one of the officers said, "he's
got another gun," Bamford kicked Smith in the face, but he
continued to struggle. The struggle ended only after Smith
had been placed in leg restraints and handcuffed behind his
back.
During the struggle, Smith told the officers to"[g]o ahead
and kill [him]." After he was subdued, Smith said that Con-
ner was the "first priority, take care of him, take care of
him.
He's one of us, he's one of ours." Mortally wounded, Sgt.
Conner died several hours later. In the gun battle with
Smith, Conner suffered wounds to his right leg, right fore-
arm, back, and head. The wound to the head, which caused
"a peach size section of skull [to be] missing," proved fatal.
Gunpowder debris was found in the head wound, indicating
the wound was caused by a gunshot fired within three feet
if inflicted by a handgun or six feet if inflicted by a rifle.

Smith v. Commonwealth, 389 S.E.2d 871, 874-76 (Va. 1990).
4
II.

Preliminarily, we must decide whether the newly enacted in forma
pauperis filing fee provisions of the Prison Litigation Reform Act
("PLRA") apply to habeas proceedings. See Pub. L. No. 104-134, 110
Stat. 1321 (1996) (amending 28 U.S.C. § 1915). 1 To date, five
circuits
have considered whether the PLRA's fee provisions apply to habeas
petitioners. Our sister circuits have unanimously held the PLRA
filing
fee provisions inapplicable in habeas proceedings. See Naddi v.
Hill,
106 F.3d 275, 277 (9th Cir. 1997); United States v. Cole, 101 F.3d
1076, 1077 (5th Cir. 1996); Santana v. United States, 98 F.3d 752,
753-56 (3rd Cir. 1996); Martin v. United States , 96 F.3d 853,
855-56
(7th Cir. 1996); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996).

The rationale of these cases is compelling. First, the PLRA con-
tains no provision expressly including habeas petitioners within
its
reach. The in forma pauperis fee provisions of the PLRA apply when
"a prisoner seek[s] to bring a civil action or appeal a judgment in
a
civil action." 28 U.S.C.A. § 1915(a)(2) (West, WESTLAW through
Oct. 19, 1996). The PLRA does not define "civil action," and does
not
explicitly include or exclude habeas litigants from its reach.
Although
a habeas proceeding is considered a civil action for some purposes,
Smith v. Bennett, 365 U.S. 708, 712 (1961), it is "more accurately
regarded as being sui generis." Martin, 96 F.3d at 855. (Posner,
C.J.).

As the Third Circuit recently explained:
[H]abeas corpus cases are, in effect, hybrid actions whose
_________________________________________________________________
1 We note that the State failed to address this issue at oral
argument,
and has not updated its short memorandum on this issue to respond
to the
five circuit courts (cited above) that have held that the PLRA fee
provi-
sions do not apply to habeas proceedings. Accordingly, it is
unclear
whether the State still opposes Smith's motion asserting that the
PLRA
in forma pauperis provisions do not apply to habeas proceedings.
See
Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (State of
California
acknowledges that "PLRA's revised forma pauperis provisions
relating
to prisoners do not apply to habeas proceedings."). However, since
the
State has not withdrawn its opposition, we assume for purposes here
that
it does still oppose the motion.

5
 nature is not adequately captured by the phrase"civil
action"; they are independent civil dispositions of completed
criminal proceedings. James S. Liebman, 1 FEDERAL
HABEAS CORPUS PRACTICE & PROCEDURE § 2.1, at
3 (1988). The "civil" label is attached to habeas proceedings
in order to distinguish them from "criminal" proceedings,
which are intended to punish and require various constitu-
tional guarantees. Boudin v. Thomas, 732 F.2d 1107, 1112
(2d Cir. 1984); see also Ex parte Tom Tong , 108 U.S. at
559, 2 S.Ct. at 872 (Habeas corpus review is a civil proceed-
ing because "[p]roceedings to enforce civil rights are civil
proceedings and proceedings for the punishment of crimes
are criminal proceedings."). In light of their hybrid nature,
habeas proceedings are often determined to be outside the
reach of the phrase "civil action." See , e.g., Schlanger v.
Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 998 n. 4, 28
L.Ed.2d 251 (1971) (nationwide service of process under 28
U.S.C. § 1391(e) applicable in civil proceedings against
United States employees and officers is not available in
habeas corpus proceedings); Harris v. Nelson, 394 U.S. 286,
89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) (civil discovery rules
do not automatically apply to habeas proceedings); Ewing v.
Rodgers, 826 F.2d 967 (10th Cir. 1987) (a habeas corpus
suit is not a "civil action" for purposes of an award of
attor-
neys fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d)(1)(A)); Boudin, 732 F.2d 1107 (similar); Dillard
v. Blackburn, 780 F.2d 509 (5th Cir.1986) ("[H]abeas cases
are not automatically subject to the rules governing civil
actions."); see also Advisory Committee Note to Rule 11 of
the Rules Governing § 2254 Cases (Federal Rules of Civil
Procedure apply to habeas corpus proceedings only to the
extent they are not inconsistent with the habeas rules).
Santana, 98 F.3d at 754-55.

Second, the text and context of the PLRA reflect a Congressional
focus on prisoner civil rights litigation, as opposed to habeas
proceed-
ings. The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), enacted just
two days before passage of the PLRA, extensively reformed habeas

6
proceedings. This chronology strongly suggests that Congress
intended to make its changes to habeas proceedings via the AEDPA,
and to alter procedure in prisoner civil rights litigation in the
PLRA.
See Naddi, 106 F.3d at 277 ("A review of the language and intent of
the PLRA reveals that Congress was focused on prisoner civil rights
and conditions cases . . . especially in light of the major
revisions to
habeas corpus laws contained in the AEDPA . . . ."); Cole, 101 F.3d
at 1077 ("Congress gave specific attention to perceived abuses in
the
filing of habeas corpus petitions by enacting Title I of the AEDPA.
That title imposes several new restrictions on habeas corpus
petitions,
but makes no change in filing fees or in a prisoner's obligation
for
payment of existing fees."); Santana, 98 F.3d at 755 (Citing state-
ments from the text and concluding that "[i]f Congress had wanted
to
reform the in forma pauperis status of habeas petitioners, it might
have done so in the AEDPA."); Martin, 96 F.3d at 856 (same); Reyes,
90 F.3d at 678 (same).

Third, it seems unlikely that Congress meant the PLRA's complex
payment structure to apply to the nominal filing fee for habeas
peti-
tions. In Title I of the AEDPA "Congress gave specific attention to
perceived abuse in the filing of habeas petitions" but made "no
change
in filing fees." Reyes, 90 F.3d at 678. The habeas filing fee
remained
$5, compared to the $120 filing fee applicable to civil complaints.
See
28 U.S.C. § 1914(a) (1994). Although "the PLRA establishes an elab-
orate installment payment plan by which litigants may fulfill their
fil-
ing fee obligations," it "does not increase the $5 filing fee for
a habeas
petition . . . . Congress surely did not intend for the installment
plan
of the PLRA to apply to habeas corpus actions merely to assure
deferred monthly payments of a $5.00 fee." Santana, 98 F.3d at 756.

Finally, applying the PLRA to habeas actions would have an in-
equitable result certainly unintended by Congress: a prisoner who
had
filed three groundless civil suits might be barred any access to
habeas
relief. The PLRA prevents prisoners from filing civil actions or
appeals when three prior actions have been dismissed as frivolous,
unless the prisoner proves that he is in imminent danger of serious
bodily harm. See 28 U.S.C.A. § 1915(g) (West, WESTLAW through
Oct. 19, 1996). Thus, as Judge Posner has pointed out, applying the
PLRA to habeas actions would "block [habeas] access to any prisoner
who had filed three groundless civil suits and was unable to pay
the

7
full appellate filing fee . . . . This result would be contrary to
the long
tradition of ready access of prisoners to federal habeas corpus, as
dis-
tinct from their access to tort remedies (a distinction emphasized
in
Heck v. Humphrey, 512 U.S. 477 (1994))." Martin, 96 F.3d at 855-56.
For these and the other reasons discussed by our sister circuits,
we
join them and hold that the in forma pauperis filing fee provisions
of
the PLRA do not apply in habeas corpus actions.

III.

Turning to the merits of Smith's habeas petition, Smith claims
inef-
fective assistance of counsel because his trial counsel did not
seek the
appointment of various non-psychiatric experts for testimonial and
trial preparation purposes.2"Whether counsel's performance was con-
stitutionally adequate is a mixed question of law and fact which we
review de novo." Savino v. Murray, 82 F.3d 593, 598 (4th Cir.),
cert.
denied, 117 S.Ct. 1 (1996).

At trial, the prosecution presented expert testimony to establish
that
Smith had shot Sgt. Conner in the head with a .357 magnum pistol
at close range. Dr. Frances Field testified that there was powder
resi-
due in Sgt. Conner's head wound consistent with"a close gunshot
wound," meaning within three feet for a pistol, and within six feet
for
a rifle. Dr. Field stated that blood found on the barrel of Smith's
.357
magnum was consistent with "blow back" from a gun shot four to six
inches away from Sgt. Conner. Julien Mason, a firearms
identification
expert, explained that there were bullet abrasions on Smith's fence
that were consistent with the bullets of a .357 magnum. Donald
McClanrock, a forensic scientist, testified that Smith had more
barium
gas on his left hand than on his right hand, and that this finding
was
consistent with Smith having shot a revolver with his left hand.
_________________________________________________________________
2 The State argues on appeal that the new evidentiary standard for
habeas corpus actions included in Title I of the AEDPA should be
applied in this case. Smith responds that application of the AEDPA
to his
case would have an impermissible retroactive effect. We need not
decide
whether the AEDPA's new evidentiary standard applies because, even
under the more expansive prior scope of review, Smith is not
entitled to
relief. See Cooper v. Taylor, 103 F.3d 366, 369 n. 1 (4th Cir.
1996) (en
banc).

8
Smith's trial counsel attacked the prosecution's theory through
cross-examination. Dr. Field admitted on cross-examination that the
blood on the muzzle of the .357 was not necessarily the result of
a
"blow back," and that the bullet that caused Sgt. Conner's back
wound might have ricocheted. Firearms expert Julien Mason recog-
nized that the bullet that caused the back wound likely ricocheted
off
of Sgt. Conner's belt, and that the same bullet may have caused the
head wound. Mason acknowledged that he found no gunpowder resi-
due in his examination of tissue from Sgt. Conner's head wound.
Mason also admitted that he could not determine when the spent .357
casings had been fired. On cross-examination McClanrock conceded
that the gases on Smith's hand could have come from the rifle.
There
was also trial testimony that the amount of time between Smith's
apprehension and the sound of shots was too short for Smith to
trav-
erse the distance of his driveway, shoot Sgt. Conner, and return to
the
side door of his house.

On federal habeas, Smith presented new expert testimony aimed at
establishing that he did not shoot Sgt. Conner in the head with the
.357 magnum pistol. Gary Laughlin, a forensic microscopist and met-
allurgist, testified that the metal fragments in Sgt. Conner's head
wound could not have come from a .357, but could have come from
Smith's rifle, and that there was no powder residue in the head
wound. Stewart James, a blood stain expert, opined that the blood
on
the .357 magnum could not have been "blow back" and that if it was
blow back, there should have been blood on Smith's clothes.
Forensic
pathologist Dr. Vincent DiMaio stated that Sgt. Conner's head wound
was caused by the rifle, and from at least two or more feet away.
Lucien Haag, a firearms expert, concluded that there was evidence
that Smith had not fired the .357 the night of July 24, 1988. 3
_________________________________________________________________
3 At the habeas hearing, Smith also presented expert testimony
intended
to prove that he did not fire first at Sgt. Conner. At trial Leslie
Freed,
Smith's emergency room nurse, testified that the trajectory of the
entrance and exit of Smith's foot wound was consistent with Smith
fac-
ing towards Sgt. Conner (and therefore possibly firing first).
Lucien
Haag testified before the habeas court that the bullet came from
the other
side, which was more consistent with Smith facing a different
direction
(and possibly not firing first). This evidence is of little
consequence,
however, because the direction Smith was facing was not pivotal to
the
prosecution's case. It was raised on cross examination by Smith's
law-
yers, and was not an issue raised or focused on by the State.
Furthermore,
in light of the other evidence presented at trial that Smith shot
first, it is
unlikely this evidence would have made a difference.

9
We have recognized that an indigent defendant has a right to assis-
tance of an expert if "a substantial question exists over an issue
requiring expert testimony for its resolution and the defendant's
posi-
tion cannot be fully developed without professional assistance."
Williams v. Martin, 618 F.2d 1021, 1026 (4th Cir. 1980) (citing
Jacobs v. United States, 350 F.2d 571, 573 (4th Cir. 1965)). But
see
Caldwell v. Mississippi, 472 U.S. 320, 323-24 n.1 (1985)
(specifically
declining to rule on this issue).

Our inquiry into whether trial counsel's failure to request expert
assistance was constitutionally deficient is controlled by
Strickland v.
Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was
so defective as to require reversal of a conviction or death
sentence has two components. First, the defendant must
show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sen-
tence resulted from a breakdown in the adversary process
that renders the result unreliable.

Strickland, 466 U.S. at 687. The district court held that Smith had
failed under "Strickland's performance prong," because Smith's
trial
counsel reasonably chose to rely upon cross-examination of the
State's own witnesses to establish his case.

We agree. The parties spend a significant amount of time arguing
about whether Smith would have met the standard for court appoint-
ment of expert assistance if he had sought appointment of such
experts at trial. Regardless of whether the trial court would have
appointed such experts, it was reasonable for Smith's trial
attorneys
to rely, as they said, on "the Commonwealth's own, quote, experts
verifying Mr. Smith's version of what happened." Even in hindsight,

10
and with the help of a battery of experts, Smith was not able to
prove
much more at the habeas hearing than his lawyers did at trial.
Smith's
trial counsel was able to use effectively the testimony of the
State's
own experts, especially Julien Mason, to build his theory of the
case.
Smith's trial lawyers made a tactical decision to rely on Mason and
other prosecution experts to dispute the prosecution's theory, and
we
cannot say in hindsight that this was an unreasonable tactic.

In short, Smith has not demonstrated that his trial counsel's
perfor-
mance was constitutionally deficient.

IV.

Smith next argues that the district court erred in finding a number
of his claims procedurally barred. Smith maintains that there was
"cause" for the procedural default: his state habeas attorney's
refusal
to present his federal claims, despite Smith's orders. It does
appear
that Smith's state habeas counsel ignored Smith's requests to file
fed-
eral constitutional claims along with his state constitutional
claims.

The Supreme Court has held that "[t]here is no constitutional right
to an attorney in state post-conviction proceedings. Consequently,
a
petitioner cannot claim constitutionally ineffective assistance of
coun-
sel in such proceedings." Coleman v. Thompson , 501 U.S. 722, 752
(1991) (citations omitted). An attorney's errors on state habeas
can
"only constitute `cause' if [the defendant] was denied his right to
effective assistance of counsel. As explained [in Coleman, the
defen-
dant] had no such right in his state habeas appeal." Wise v.
Williams,
982 F.2d 142, 145 (4th Cir. 1992). Therefore, under Wise and
Coleman, Smith had no right to counsel (effective or otherwise) on
state habeas, and cannot claim ineffective assistance of state
habeas
counsel, or claim that counsel's errors were cause for procedural
default.4
_________________________________________________________________
4 Smith also attempts to recast his ineffective assistance claim as
a due
process claim. See Hicks v. Oklahoma, 447 U.S. 343, 346, (1980).
See
also Buchanan v. Angelone, 103 F.3d 344, 348 (4th Cir. 1996) ("It
is
true, at least in the context of discretionary sentencing by a
jury, that
denial of a state procedural right may rise to the level of a
federal due

11
V.

Finally, Smith challenges the district court's denial of his July,
1995 motion to amend his habeas petition. Smith's proposed amend-
ment raised new claims of prosecutorial misconduct based upon taped
interviews of Officer Goodman and Officer Ryan, who were at the
scene of the crime. Smith asserts that the tapes were exculpatory
and
that the prosecution failed to disclose the tapes at trial.5 The
district
court denied Smith leave to amend because it found Smith's delay in
uncovering the evidence unreasonable, and that the delay to the
State
was "inordinately prejudicial."
_________________________________________________________________
process violation.") We have never held that a prisoner may claim
a due
process violation based upon his lawyer's performance on state
habeas
and we decline to do so today because the failure of Smith's state
habeas
counsel to pursue Smith's federal constitutional claims did not
violate
any due process right. Smith has not been denied review of those
claims;
rather, those claims have been fully reviewed on direct appeal.
Indeed,
even if those claims had been pursued on state habeas, they would
almost
certainly have been barred because they had already been raised and
rejected on direct appeal, and Virginia bars repetitive review of
identical
issues on habeas. See Slayton v. Parrigan, 205 S.E.2d 680 (Va.
1974);
Hawks v. Cox, 175 S.E.2d 271 (Va. 1970).
5 Failure to disclose the tapes hardly constituted prosecutorial
miscon-
duct. Smith asserts that the taped interviews of Officers Goodman
and
Ryan prove: (1)Smith could not have recognized Sgt. Conner as a
police officer because the visibility was poor the night of the
shooting
and (2)Smith did not walk down the alley and shoot Sgt. Conner at
close range. On the tapes the officers do state that visibility was
poor, but
Smith had already presented similar evidence at trial and the State
had
countered it with a good deal of testimony that visibility was
entirely
adequate. In any event and most significantly, the tapes make it
clear that
neither Officer Goodman nor Officer Ryan was positioned to report
what
Smith could see or whether Smith had shot Sgt. Conner at close
range.
Thus, the tapes offer no rebuttal to the mountain of physical
evidence
presented to the jury, Smith's statement that he would shoot the
first
police officer who arrived, and the fact that Sgt. Conner, the
first officer
on the scene, twice asked Smith to "drop the rifle" immediately
prior to
being shot by Smith. For these reasons, the tapes were minimally
helpful
to Smith and would almost surely fail the "materiality" test of
Brady v.
Maryland, 373 U.S. 83 (1963).

12
We review a denial of a motion to amend for abuse of discretion.
See Chisolm v. Transouth Fin. Corp. , 95 F.3d 331, 338 (4th Cir.
1996). A party may amend his pleading only by leave of the court,
but "leave shall be freely given when justice so requires." Fed. R.
Civ.
P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Although
"[d]elay alone" should not suffice as reason for denial of a motion
to
amend, Davis v. Piper Aircraft Corp. , 615 F.2d 606, 613 (4th Cir.
1980), "this court has reasoned that a motion to amend may be
denied
when it has been unduly delayed and when allowing the motion
would prejudice the nonmovant." Lone Star Steakhouse & Saloon,
Inc. v. Alpha of Va., Inc. , 43 F.3d 922, 941 (4th Cir. 1995).

We cannot conclude that the district court erred in finding that
Smith's motion to amend was unduly delayed and prejudicial. Smith
had months to discover the tapes at issue. In the fall of 1994 the
State
provided Smith with a list of items available for inspection,
including
an "interview tape," with interviews of officers "Bamford, Goodman,
Bagshaw." On October 17, 1994, Smith's counsel met with the State's
attorneys at the Manassas police department to inspect their
evidence.
At this meeting, Smith's attorneys refused the State's offer of
listen-
ing equipment to review the interview tapes. Later the tapes were
stored with the court, allowing Smith free access. In short,
Smith's
attorneys had notice of the existence of, and access to, the tapes
from
at least October 1994, and yet they did not review the tapes until
June
1995 and did not move to amend the habeas petition until early July
1995.

Moreover, before the July motion to amend, Smith's case had
already been delayed on multiple occasions. Following these delays,
the court made clear that the case had dragged on for two years,
and
the court expected things to move apace: "The court is anxious to
dis-
pose of this case in as speedy a manner as justice will allow.
Accord-
ingly, counsel are ADVISED that the court will look upon further
delays with extreme displeasure."

"Amendments near the time of trial may be particularly disruptive,
and may therefore be subject to special scrutiny." Deasy v. Hill,
833
F.2d 38, 41 (4th Cir. 1987). In this case Smith moved to amend
liter-
ally on the eve of trial: a two-day evidentiary hearing on Smith's
inef-
fective assistance of counsel claims was set for July 12, 1995 and

13
Smith filed his motion to amend the habeas petition on July 5,
1995.
As in Deasy, in this case "the delay was significant, and the
motion
to amend came right before trial and after discovery was complete."
Id.

The timing of the amendment also illuminates the prejudice suf-
fered by the State. On the one hand, "it would have been manifestly
unfair to make [the State] go to trial" with a week's notice and
"with-
out having had a fair opportunity to prepare [its] case." Nat'l
Bank of
Washington v. Pearson, 863 F.2d 322, 328 (4th Cir. 1988). On the
other hand, it would have been unfair to make the State "conduct
dis-
covery a second time in order to meet [the] newly asserted
[claim]."
Id. We have held that "[b]elated claims which change the character
of litigation are not favored." Deasy, 833 F.2d at 42; see also
Lone
Star, 43 F.3d at 940 (finding prejudice because a motion to amend
filed "on the last day of discovery would have raised new issues,
which were not involved in the case during the discovery and were
not the subject of Plaintiff's discovery and trial preparation.");
4
Charles A. Wright et al., Federal Practice and Procedure § 1487, at
623-26 (2d ed. 1990) (If an amendment "is proposed late enough" and
requires the opponent "to engage in significant new preparation" or
results in the "added expense and the burden of a more complicated
and lengthy trial," prejudice may be found.).
Granting Smith's motion to amend would have required the State
to argue a whole new set of claims, based on completely new
theories.
The district court certainly would have had to schedule another
hear-
ing, and perhaps order more discovery. As the district court noted,
the
amendment would have required the State's "lawyers [to] spend addi-
tional time, money, and energy laboring in this Court's trenches."
In
sum, Smith's motion to amend would have required the State to begin
anew on a new set of claims a week before trial and would have
delayed the resolution of Smith's case indefinitely. This showing
suf-
fices to demonstrate prejudice. See Lone Star , 43 F.3d at 940;
Pearson, 863 F.2d at 328; Deasy, 833 F.2d at 41-42.

Given the multiple past delays, the late hour of Smith's motion to
amend, and the great additional burdens granting the motion would
have placed on the State, the district court did not abuse its
discretion
in denying the motion.

14
VI.

For the foregoing reasons the judgment of the district court is
hereby

AFFIRMED.
15