PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LOUIS JOE TRUESDALE,
Petitioner-Appellant,
v.
MICHAEL B. MOORE, Commissioner,
No. 97-24
South Carolina Department of
Corrections; CHARLES M. CONDON,
Attorney General, State of South
Carolina,
Respondents-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Dennis W. Shedd, District Judge.
(CA-96-2792-4-19BE)
Argued: March 2, 1998
Decided: April 29, 1998
Before WILKINSON, Chief Judge, and WILLIAMS and
MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Mark Oliver Denehy, ADLER, POLLOCK & SHEE-
HAN, INCORPORATED, Providence, Rhode Island; John Henry
Blume, III, Columbia, South Carolina, for Appellant. Donald John
Zelenka, Assistant Deputy Attorney General, Columbia, South Caro-
lina, for Appellees. ON BRIEF: Joseph Avanzato, ADLER, POL-
LOCK & SHEEHAN, INCORPORATED, Providence, Rhode Island;
Keir M. Weyble, Columbia, South Carolina, for Appellant. Charles
M. Condon, Attorney General, John W. McIntosh, Deputy Attorney
General, Columbia, South Carolina, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Louis Joe Truesdale was sentenced to death for the murder of
Rebecca Eudy. After exhausting state challenges to the third death
sentence imposed by the state courts, he petitioned the United States
District Court for the District of South Carolina for a writ of habeas
corpus under 28 U.S.C. § 2254. The district court denied the petition,
and we now affirm the judgment.
I.
On Saturday, April 5, 1980, Rebecca Eudy's car was found, aban-
doned, with a pool of blood on the passenger's seat and floor. Sandra
Marshall, the friend with whom Eudy had spent the evening of Fri-
day, April 4, told police that she had seen a man in an army field
jacket lurking around the parking lot where she and Eudy parted for
the evening. She also told the police that Eudy drove erratically out
of the parking lot -- Eudy did not turn on her lights, and she went
to the wrong exit. Marshall pulled over to wait for her friend. As
Eudy passed, Eudy remained expressionless and did not wave or
smile as she ordinarily did. The police learned from another witness,
Roy Curry, that a man in an army jacket had been lurking around
another parking lot earlier that evening before driving off in a car reg-
istered to Truesdale. The police picked Truesdale up on the afternoon
of April 5, informed him of his rights, and took him to the police sta-
tion for questioning.
Truesdale was again advised of his rights at the station. He said he
understood them and proceeded to answer questions. He claimed that
2
he had been fishing Friday afternoon and playing pool with friends
until 1:00 Saturday morning. The police began investigating his story.
Although not satisfied with his alibi, they told Truesdale he was free
to leave around midnight on April 5. Truesdale chose to stay with the
police and accompanied them to track down the people with whom
he said he had played pool. Truesdale fell asleep in the car, and when
he awoke he told the police he "hadn't killed any girl." According to
the police, at this time they were not yet certain Eudy had been mur-
dered, and no one had suggested to Truesdale that anyone had been
killed. Their suspicions were further aroused when one of the people
with whom Truesdale claimed to have played pool could not satisfac-
torily corroborate Truesdale's story.
Around 2:30 a.m. on Sunday, April 6, the police and Truesdale
returned to the Sheriff's Department. Truesdale said he wanted to go
home. The police told him he was free to leave. Nevertheless, Trues-
dale continued to speak with the police, eventually telling them to go
to his mother's house, where they would find a bloody pair of jeans
and an army field jacket. After the police retrieved the bloody clothes
and Truesdale again waived his Miranda rights, Truesdale confessed
that he had kidnapped Eudy and had sexual intercourse with her. He
insisted that he had himself been kidnapped and forced to commit
these acts at gunpoint by an unidentified third person, who shot and
killed Eudy. He then took the police to the field where Eudy's body
was located. At this point Truesdale was arrested for kidnapping,
criminal sexual conduct in the first degree, and murder. On April 8,
1980, Truesdale signed a statement prepared for him by the police
reiterating his confession to kidnapping and forcible sexual inter-
course with Eudy and implicating the unidentified third person in
Eudy's murder.
Truesdale was tried for kidnapping, criminal sexual conduct, and
murder in December 1980. Truesdale initially pled not guilty, but
after the jury was selected he changed his plea to guilty. The jury rec-
ommended a sentence of death on the murder charge. The sentence
was vacated on direct appeal and a new trial ordered. State v.
Truesdale, 296 S.E.2d 528 (S.C. 1982). At this second trial, which
took place in 1983, Truesdale again pled not guilty to all charges. The
State supplemented its evidence from the 1980 trial with ballistics
evidence linking the bullets that killed Eudy to a gun found outside
3
Truesdale's mother's house. Truesdale's counsel presented no evi-
dence in his defense. The jury found Truesdale guilty of murder,
criminal sexual conduct in the first degree, and kidnapping. At the
sentencing phase, the State introduced two photos of Eudy's lifeless
body as evidence of aggravation. Truesdale unsuccessfully sought to
introduce evidence that showed his ability to adapt to prison life.
After deliberating for fifteen minutes, the jury recommended that
Truesdale be sentenced to death.1
The South Carolina Supreme Court affirmed the convictions and
sentence. State v. Truesdale, 328 S.E.2d 53 (S.C. 1984). And Trues-
dale's petition for a writ of certiorari to the United States Supreme
Court was unsuccessful. Truesdale v. South Carolina, 471 U.S. 1009
(1985). After the South Carolina courts denied his application for
postconviction relief (PCR), Truesdale v. Aiken , 347 S.E.2d 101 (S.C.
1986), however, the United States Supreme Court granted Truesdale's
petition for a writ of certiorari and vacated his death sentence on
grounds that Skipper v. South Carolina, 476 U.S. 1 (1986), entitled
him to introduce evidence of his adaptability to prison life. Truesdale
v. Aiken, 480 U.S. 527 (1987).
Truesdale's resentencing took place in 1987. The State again pre-
sented evidence adduced during the guilt phase of the 1983 trial, sup-
plemented with forensic evidence to establish that Eudy had been
raped and that Truesdale could have been the rapist. The State again
introduced a photograph of Eudy's body as evidence of aggravation.
Truesdale countered with testimony from family and friends, teachers,
employers, coworkers, and prison officials. After twelve hours of
deliberation, the jury again recommended a death sentence. The South
Carolina Supreme Court affirmed the death sentence. State v.
Truesdale, 393 S.E.2d 168 (S.C. 1990). And Truesdale's certiorari
petition to the United States Supreme Court was denied. Truesdale v.
South Carolina, 498 U.S. 1074 (1991).
_________________________________________________________________
1 Truesdale was also sentenced to thirty years imprisonment for crimi-
nal sexual conduct. Pursuant to South Carolina law, no sentence was
imposed for kidnapping. Throughout the course of this litigation, Trues-
dale's appeals have focused only on his death sentence, and we do so as
well.
4
On state postconviction review in 1993, Truesdale introduced sev-
eral pieces of new evidence about the circumstances of the crimes of
which he stood convicted. In addition, Truesdale raised numerous
legal claims, many of which were dismissed as successive because
not raised at the 1985 PCR proceeding or barred because not raised
on direct appeal. The remaining claims, including the contention that
his 1987 resentencing counsel was ineffective, were denied on the
merits. His petition for a writ of certiorari to the South Carolina
Supreme Court was denied. And the United States Supreme Court
denied Truesdale's petition for a writ of certiorari. Truesdale v.
Moore, 117 S. Ct. 527 (1996).
Truesdale's federal habeas petition was filed on September 13,
1996. The district court referred the matter to a magistrate judge.
After denying Truesdale's request for an evidentiary hearing, the
magistrate judge granted the State's motion for summary judgment.
The district court accepted the magistrate judge's report and recom-
mendation in full and dismissed Truesdale's petition. Truesdale now
appeals.
II.
Truesdale claims he received constitutionally ineffective assistance
of counsel at his 1987 resentencing proceeding. He charges counsel
with a variety of errors, which can be grouped into two general cate-
gories: (1) the failure to present evidence either in mitigation or that
would rebut the State's case on the aggravating factors of kidnapping
and sexual assault; and (2) the failure to raise the claim that African
Americans were underrepresented in the jury pool in violation of the
Sixth and Fourteenth Amendments. Neither of these claims provides
a basis for habeas relief.2
_________________________________________________________________
2 Truesdale also challenges the district court's ruling that amendments
to the federal habeas corpus scheme enacted by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA), apply to his case. We need not take up this question,
because the bulk of Truesdale's claims are procedurally defaulted, and,
as elaborated below, those that remain do not warrant habeas relief under
any standard of review. We reject Truesdale's novel suggestion that
AEDPA somehow abolished procedural default in all cases not governed
by Chapter 154. See Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir.
1997) (rejecting similar claim).
5
A.
At his 1993 state PCR proceeding Truesdale identified the rebuttal
and mitigating evidence he claims counsel should have raised in
1987. He presented the testimony of numerous witnesses, including
family, friends, acquaintances, attorneys, and experts. These wit-
nesses testified to, among other things, his claimed prior romantic
relationship with Eudy, the alleged inconclusiveness of the forensic
evidence that he raped Eudy or that he and she had any sexual rela-
tions at all, the fact that bloody fingerprints on Eudy's car did not
match Truesdale's, and the claim that Truesdale suffered from organic
brain dysfunction. Truesdale contends it was unreasonable for his
resentencing counsel not to uncover and present this evidence to the
jury to counter the State's case in aggravation. For example, Trues-
dale states that evidence of romantic involvement between Eudy and
himself suggests that Eudy went with him willingly (instead of being
kidnapped) and that any sexual relations between him and Eudy were
consensual (instead of rape). And he claims that evidence of the mys-
terious bloody fingerprints would have corroborated his story that an
armed third person forced him to attack Eudy.
At this late stage, our review of counsel's performance is quite def-
erential. The Supreme Court has instructed us to"indulge a strong
presumption that counsel's conduct falls within the wide range of rea-
sonable professional assistance." Strickland v. Washington, 466 U.S.
668, 689 (1984). Thus we ask not whether, with the benefit of hind-
sight, we would have conducted the defense differently. In the wake
of a conviction and death sentence such a conclusion"is all too tempt-
ing." Id. Rather we must place ourselves in the shoes of Truesdale's
attorneys and ask only whether their choices were objectively unrea-
sonable. We cannot say that counsel's efforts in this case failed to sat-
isfy Strickland's standard.
As did the district court, we conclude that Truesdale's resentencing
counsel pursued a reasonable strategy of attempting to downplay the
brutal crimes committed against Eudy and to portray Truesdale as a
normal person with a single aberrant episode of violence. As counsel
explained:
[W]e felt that he had already been convicted [of kidnap-
ping and rape] and we wanted to try and stay away from all
6
that evidence. We wanted to stay away from any rehashing
of the same kinds of things that would hurt our case. We
wanted to then try to mitigate, I think, as much as we could.
We were looking more towards the mitigation, of calling the
witnesses from C.C.I., which were a development that prior
two trial lawyers didn't have available to them.
And I remember distinctly calling the young son, which,
again, by this time had grown in age and was a strategy to
try to engender as much sympathy as we can for Louis, also
showing that he could be rehabilitated, that he would be
incarcerated but rehabilitated and perhaps save his life.
....
In this case we had a fresh jury that had not heard the
guilt phase. I was in hopes, I think at this point in time,
seven years had passed from the first trial. I was in hopes
that the solicitor perhaps would not be as sharp on his pre-
sentation, that he wouldn't get the kinds of things in that
perhaps cross examination might remind him of.
I think that was our strategy, was try to minimize the guilt
aspect of it and try to maximize the mitigation.
This reasonable strategy dictated both what counsel did -- present
abundant character evidence in hopes of giving the jury a favorable
impression of Truesdale as a normal, happy person-- and what coun-
sel did not do -- relitigate the gruesome details of Truesdale's crimes
or suggest that Truesdale suffered from mental illness at the time.
This strategy of painting a sympathetic character portrait rather
than rehashing the details of defendant's past convictions meets
Strickland's standards. Counsel reasonably chose not to introduce any
rebuttal evidence about the kidnapping and rape. Truesdale had
already confessed to kidnapping and sexually assaulting Eudy, and his
responsibility for her murder had been conclusively established by his
conviction. Thus counsel reasonably concluded that disputing pre-
cisely how Eudy was abducted, assaulted, and killed could serve no
7
constructive purpose and might in fact do more harm than good. For
example, dwelling on whether Eudy was dead or alive when she was
sexually assaulted, as Truesdale now claims counsel should have
done, would not have been likely to build sympathy for Truesdale. In
fact, such an approach might well squander the advantage of having
a fresh jury deciding Truesdale's sentence, see Evans v. Thompson,
881 F.2d 117, 121 (4th Cir. 1989), by prolonging the jury's exposure
to the grisly facts of Eudy's rape and murder. While Truesdale com-
plains that counsel was unaware of some of this rebuttal evidence, it
was not unreasonable for counsel to limit his investigation. In
Strickland the Court recognized that counsel might "make a reason-
able decision that makes particular investigations unnecessary." 466
U.S. at 691. In focusing almost exclusively on mitigation rather than
rebuttal, Truesdale's counsel made just such a reasonable tactical
decision.
Nor was there anything unreasonable about counsel's selection of
what mitigating evidence to present. Truesdale says counsel should
have informed the jury that his history of substance abuse had
resulted in organic brain dysfunction. This condition caused Trues-
dale to have "difficulty with cognitive tasks, judgment, things of that
sort that would require quick rational thinking" and made him less
able to adapt his behavior to societal norms. We have recognized that
"[t]rial counsel is too frequently placed in a no-win situation with
respect to possible mitigating evidence at the sentencing phase of a
capital case." Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir.
1991). Failure to present particular mitigating evidence often leads to
claims that counsel should have introduced such evidence or investi-
gated further. On the other hand, the introduction of evidence that the
jury does not credit or that the state turns to its advantage leads to
ineffectiveness claims also. Thus "[t]he best course for a federal
habeas court is to credit plausible strategic judgments." Id. Trues-
dale's counsel deliberately steered away from developing any mental
health evidence, calculating that it would not help portray Truesdale
as normal and capable of rehabilitation. Mental health evidence like
that of Truesdale's organic brain dysfunction is a double-edged sword
that might as easily have condemned Truesdale to death as excused
his actions. The decision not to pursue this line of inquiry exemplifies
the type of reasonable "strategic judgment" that we respect. Id.
8
B.
Truesdale also asserts that it was constitutionally ineffective assis-
tance for his resentencing counsel not to object that South Carolina's
procedure for selecting jury venires, drawing them at random from
voter registration lists, violated the Sixth and Fourteenth Amend-
ments. He alleges that this error tainted the jury that sentenced him
to death in 1980, the jury that convicted him and again sentenced him
to death in 1983, and the jury that finally sentenced him to death in
1987. Truesdale cannot now raise the claims relating to the 1980 and
1983 trials, as he did not raise them at the 1985 state PCR hearing.3
S.C. Code Ann. § 17-27-90; Arnold v. State , 420 S.E.2d 834 (S.C.
1992); Aice v. State, 409 S.E.2d 392 (S.C. 1991). Truesdale's claims
regarding the 1987 venire are properly presented, but without merit.
It was not constitutionally ineffective assistance for Truesdale's
resentencing counsel not to pursue futile claims.
To make out a prima facie case for a violation of the Sixth Amend-
ment right to a jury venire that is a "fair cross-section" of the commu-
nity, Truesdale must establish that (1) a "distinctive" segment of the
community (2) is "substantially underrepresented" in the jury pool (3)
as a result of "systematic exclusion" of the group. Duren v. Missouri,
439 U.S. 357, 364 (1979). Truesdale has not advanced any direct evi-
dence of "systematic exclusion" of African Americans from the
venire. Instead he seeks to rely on the bare assertion of substantial
underrepresentation to prove that there was a structural or systemic
impediment to voter registration by African Americans. We have con-
sistently required more to make out a violation of the "fair cross-
section" guarantee. The use of voter registration lists "has been con-
sistently upheld against both statutory and constitutional challenges,
unless the voter list in question had been compiled in a discriminatory
manner." United States v. Cecil, 836 F.2d 1431, 1445 (4th Cir. 1988)
(en banc) (emphasis added); see also United States v. Lewis, 10 F.3d
_________________________________________________________________
3 The state PCR court ruled that these claims were defaulted. Truesdale
has not demonstrated cause and prejudice or a miscarriage of justice to
excuse the default. See, e.g., Mackall v. Angelone, 131 F.3d 442, 445-46
(4th Cir. 1997), cert. denied, 118 S. Ct. 907 (1998); Matthews v. Evatt,
105 F.3d 907, 916 (4th Cir.), cert. denied sub nom. Matthews v. Moore,
118 S. Ct. 102 (1997).
9
1086 (4th Cir. 1993) (approving use of non-discriminatory voter reg-
istration lists in jury selection). "The Supreme Court has never gone
so far as to hold that the constitution requires venires to be, statisti-
cally, a substantially true mirror of the community." Cecil, 836 F.2d
at 1445-46 (quoting Barber v. Ponte, 772 F.2d 982, 997 (1st Cir.
1985) (en banc)). To allow Truesdale to substitute evidence of sub-
stantial underrepresentation for evidence of systematic exclusion
would go a long way towards requiring perfect statistical correspon-
dence between racial percentages in the venire and those in the com-
munity. Such a rule would exalt racial proportionality over neutral
jury selection procedure.
Truesdale also argues that the composition of the jury pool violated
the equal protection guarantees of the Fourteenth Amendment as
applied in Castaneda v. Partida, 430 U.S. 482 (1977). He acknowl-
edges that to prevail on this claim he must show some evidence that
the selection procedure "is susceptible of abuse or is not racially neu-
tral." Id. at 494. Truesdale advances no claim that South Carolina's
system of selecting veniremen was manipulable or was otherwise
racially biased. On the contrary, the only evidence in the record about
how South Carolina's jury system worked suggests that it was safe
from racially-motivated abuse -- veniremen were drawn at random
from a locked jury box containing identical numbered capsules; num-
bers were assigned alphabetically to names on the unaltered voter reg-
istration list; and the Jury Commissioners responsible for jury
selection exercised no discretion in selecting from the jury box and
did not consider the race or qualifications of potential jurors. Thus
Truesdale has not carried his burden of proving discriminatory pur-
pose. See Duren, 439 U.S. at 368 n.26 (describing "discriminatory
purpose" as an "essential element of the constitutional violation" rec-
ognized in Castaneda); Folston v. Allsbrook, 691 F.2d 184, 186 (4th
Cir. 1982) (fact that jury system was impartial dispelled any inference
of discrimination arising from statistical disparity). Truesdale asks us
to infer discriminatory intent from the appearance of discriminatory
impact, but, as with his Sixth Amendment claim, this would go well
beyond where this court or the Supreme Court has gone before. We
thus reaffirm that allegations of statistical disparity will not suffice to
show a violation of the Fourteenth Amendment where no discrimina-
tory purpose was afoot.
10
Finding no merit in Truesdale's challenges to the 1987 jury pool,
we cannot say that it was constitutionally ineffective assistance for his
counsel not to raise these claims at resentencing. It is certainly reason-
able for counsel not to raise unmeritorious claims. And because these
claims would have been dismissed had they been raised, Truesdale
cannot show a reasonable probability of any different outcome at
resentencing. Cf. Lockhart v. Fretwell, 506 U.S. 364, 371 (1993)
(finding no prejudice from failure to raise a claim based on a prece-
dent that was later overruled).
III.
In his petition for a writ of habeas corpus Truesdale also specified
thirteen grounds for challenging the fairness of his 1983 trial and the
effectiveness of his 1983 counsel. We agree with the district court that
most of Truesdale's fair trial claims are procedurally defaulted
because they were not raised on direct appeal of his conviction and
sentence. Kornahrens v. Evatt, 66 F.3d 1350, 1361-64 (4th Cir. 1995),
cert. denied sub nom., Kornahrens v. Moore , 116 S. Ct. 1575 (1996).
And because he did not raise his ineffective assistance claim at the
1985 PCR proceeding, it too is barred. Mackall v. Angelone, 131 F.3d
442 (4th Cir. 1998) (en banc), cert. denied, 118 S. Ct. 907 (1998). We
address the three remaining fair trial claims in turn.4
First, Truesdale contends that admission of evidence about his
assertion of the right to remain silent denied him a fair trial. At trial,
a police officer related to the jury that while Truesdale was in cus-
tody, and before Eudy's death was generally known, Truesdale
declared to the police that he "hadn't killed any girl." The offending
statement came thereafter, when the officer told the jury that Trues-
dale did not respond when he was asked what girl he was talking
about. We shall assume arguendo that this remark constitutes a viola-
_________________________________________________________________
4 Truesdale also challenges the district court's denial of an evidentiary
hearing on these claims. Truesdale was not entitled to a hearing on pro-
cedurally defaulted claims. And, as will become apparent from the dis-
cussion below, the remaining claims focus on matters that are
sufficiently presented in the record of voir dire and trial. Thus we are
hard pressed to imagine what additional evidence Truesdale would have
offered on these issues had a hearing been held.
11
tion of Doyle v. Ohio, 426 U.S. 610, 619 (1976), which recognized
that introduction of evidence that the defendant invoked his right to
remain silent largely vitiates that right. Nevertheless, any alleged
Doyle error was harmless. See Brecht v. Abrahamson, 507 U.S. 619
(1993). At no other point in the trial was Truesdale's silence made
known to the jury -- neither the police nor the prosecutor referred to
it again. See Greer v. Miller, 483 U.S. 756, 764 (1987) ("It is signifi-
cant that in each of the cases in which this Court has applied Doyle,
the trial court has permitted specific inquiry or argument respecting
the defendant's post-Miranda silence."). And the jury heard ample
additional evidence of guilt, including Truesdale's partial confession.
Thus, any error in the officer's testimony cannot be said to have "had
substantial and injurious effect or influence in determining the jury's
verdict." Brecht, 507 U.S. at 623.
Next, Truesdale challenges the trial court's instruction on reason-
able doubt.5 We have disfavored any attempt on the part of federal
trial courts to define reasonable doubt, although we have been reluc-
tant to reverse where the instruction as a whole in no way diluted the
government's burden of proof. See United States v. Reives, 15 F.3d
42, 45 (4th Cir. 1994). This same inquiry about whether the govern-
ment benefitted from a diluted burden of proof must inform our col-
lateral review of this sentence. Truesdale charges that by equating
reasonable doubt with "a real doubt" and "a substantial doubt" the
instruction led the jury to believe that it could convict him based upon
a lower standard of proof. While in the proper case, substituting "sub-
stantial doubt" for "reasonable doubt" might violate due process, the
mere use of the words "substantial doubt" does not do so. See, e.g.,
_________________________________________________________________
5 The instruction read as follows:
The state, however, is not required to prove the guilt of a
defendant beyond all doubt or beyond every doubt, but beyond
a reasonable doubt. The term reasonable doubt as used in these
instructions is defined as a substantial doubt or a well-founded
doubt arising out of the evidence or the lack of evidence. A rea-
sonable doubt is not a weak doubt or a slight doubt, nor is a rea-
sonable doubt a whimsical, fanciful or imaginary doubt, for a
person may of course have these kinds of doubts about any prop-
osition. A reasonable doubt then is a real doubt for which a per-
son honestly seeking the truth can give a reason.
12
Victor v. Nebraska, 511 U.S. 1, 19-20 (1994). In fact, we rejected a
due process challenge to very similar instructions before, finding that
"the full instruction tempered any risk of confusion from the substan-
tial doubt language." Kornahrens, 66 F.3d at 1363; see also Adams
v. Aiken, 41 F.3d 175, 179-80 (4th Cir. 1994). As in Victor and
Adams, the instruction used at Truesdale's trial contrasted "substantial
doubt" with "weak doubt," "slight doubt," and "whimsical, fanciful or
imaginary doubt." This contrast clarifies that the term "substantial
doubt" was used in the sense that Victor allowed, to mean doubt that
is "not seeming or imaginary," rather than in the sense Victor con-
demned, which is doubt "specified to a large degree." See Victor, 511
U.S. at 19-20; Adams, 41 F.3d at 181. Because the jury was clearly
instructed that they need not feel doubt "to a large degree" in order
to acquit and that any doubt that was not fanciful or imaginary would
suffice for acquittal, the instruction did not lessen the government's
burden.
Third, Truesdale challenges the exclusion of two potential jurors,
Johnnie McCluney and Willie Powell, on the basis of their alleged
unwillingness to impose the death penalty. We hold the trial court's
exclusion of these veniremen to be wholly consistent with the stan-
dard set forth in Witherspoon v. Illinois, 391 U.S. 510 (1968), and
Lockhart v. McCree, 476 U.S. 162 (1986). We generally review the
determinations of the trial judge, who had the benefit of first-hand
exposure to the voir dire, with deference. This deference means that
where a venireman's responses reveal some ambiguity about his will-
ingness or ability to impose the death penalty, we presume the cor-
rectness of the trial court's decision. Maynard v. Dixon, 943 F.2d 407,
415 (4th Cir. 1991). Taken as a whole, the statements of McCluney
and Powell at the very least evidence ambiguity, and several state-
ments by each manifest a flat unwillingness to sentence another to
death. For example, McCluney indicated that she did not believe she
could impose the death penalty, that she would feel as guilty as the
murderer she was sentencing, that God would not be pleased were she
to vote for death, and that death was a judgment only God could
make. Similarly, Powell stated numerous times that he opposed the
death penalty and confirmed that his opposition to it would prevent
him voting for a death sentence "under any and all circumstances."
We respect the fact that citizens may conscientiously hold this view.
At the same time, the trial court was correct to note that these two
13
jurors could not render a verdict according to law and thus properly
excluded them from the jury.
IV.
Finally, Truesdale challenges Judicial Council Order No. 113,
which governs death penalty representation in the Fourth Circuit.
Order No. 113, adopted by this circuit's Judicial Council on October
3, 1996, has two primary purposes. First, it establishes guidelines to
ensure qualified representation of all capital defendants in federal
courts in this circuit. The order outlines a plan for district courts and
the circuit court to identify qualified attorneys who are available to
render assistance to capital defendants at federal trials and appeals as
well as in federal postconviction proceedings. The order charges the
courts to ascertain which attorneys have enough experience and
expertise to serve as lead counsel and which are qualified to serve
only as second-chair counsel and to compile lists of these attorneys.
The courts are to monitor attorneys' developing expertise and update
these lists as necessary. The order further recommends that Federal
Public Defenders be eligible to represent federal criminal defendants
at capital trials, on direct appeal, and in proceedings pursuant to 28
U.S.C. § 2255, but that they not represent state criminal defendants in
proceedings pursuant to 28 U.S.C. § 2254. Second, Order No. 113
imposes on district courts and the circuit court a timetable for decid-
ing petitions brought under 28 U.S.C. §§ 2254 and 2255 by defen-
dants who are under sentence of death. District courts are instructed
to render a decision and enter final judgment within 180 days of the
date on which the petition is filed, subject to an extension of up to
thirty days if the court determines that justice so requires. The court
of appeals is directed to render a decision within 120 days of the date
on which petitioner's reply brief is filed. The court of appeals is also
to rule on any petition for rehearing or suggestion for rehearing en
banc within thirty days of the date the petition or suggestion is filed
or the date a response thereto is filed, whichever is later. And if
rehearing is granted, any hearing must be conducted and a final deci-
sion rendered within 120 days of the entry of the order granting
rehearing. If a case is not timely decided the Circuit Executive may
seek an explanation of the reasons why the court has not complied
with the time limitations. One reasonable explanation, for example,
14
would be that a court needed to hold a case for a critical decision of
the Supreme Court or the Fourth Circuit.
Truesdale challenges only the second aspect of the order. He
claims that the timetable established in Order No. 113 for the disposi-
tion of habeas petitions brought by death-sentenced defendants is
invalid as inconsistent with AEDPA and because it was promulgated
without the public notice and opportunity for comment outlined in 28
U.S.C. § 332(d)(1).
A.
Quite independently of AEDPA, Congress has vested Judicial
Councils with general governmental authority over the circuits. The
Judicial Council of each circuit is instructed to"make all necessary
and appropriate orders for the effective and expeditious administra-
tion of justice within its circuit." 28 U.S.C.§ 332(d)(1). This charge
to the Councils employs broad and emphatic language, and it speaks
directly to the expeditious resolution of judicial business. While this
section has not been extensively litigated, it has been interpreted to
vest Judicial Councils with broad "management power" -- that is, the
authority "to enforce reasonable standards as to when and where court
shall be held, how long a case may be delayed in decision, whether
a given case is to be tried, and many other routine matters." Chandler,
United States District Judge v. Judicial Council of the Tenth Circuit,
398 U.S. 74, 84, 85 (1970). Further, "the power entrusted to the
Councils by § 332 . . . necessarily involves a large amount of discre-
tion; accordingly, review of the Councils' actions will usually be nar-
row in scope." Id. at 108 (Harlan, J., concurring). Chandler
specifically mentions the authority of Councils to decide "how long
a case may be delayed in decision," id. at 84, and it seems certain
"that abatement of delays in disposition of cases was a principal pur-
pose for creation of the Councils." Id. at 123 (Harlan, J., concurring).
Indeed, Congress' intent in enacting section 332,"as manifested by
both the language and history of the act, was to give the Councils
broad powers to deal with the evil of judicial delay." Hilbert v.
Dooling, 476 F.2d 355, 360 (2d Cir. 1973) (en banc).
Truesdale makes much of AEDPA's so-called quid pro quo, charg-
ing that Order No. 113 disrupts the statute's incentive structure. He
15
claims that the order gives states in the Fourth Circuit the benefits of
opting into Chapter 154 of AEDPA -- shortened deadlines for capital
habeas petitions -- without requiring these states to meet Chapter
154's requirements for opting in -- guaranteed resources and repre-
sentation for state habeas petitioners. But this objection to Order No.
113 misses the mark for several reasons.
First, Truesdale overlooks one important difference between
AEDPA and the Judicial Council's order: their different enforcement
provisions. AEDPA gives states power to"enforce a time limitation"
imposed on a district court "by petitioning for a writ of mandamus to
the court of appeals," 28 U.S.C. § 2266(b)(4)(B), and to enforce the
time limits against courts of appeals "by applying for a writ of manda-
mus to the Supreme Court," 28 U.S.C. § 2266(c)(4)(B). By contrast,
Order No. 113 provides simply that the Circuit Executive can monitor
compliance with the timetable by inquiring into the reasons for delay.
Contrary to Truesdale's assertion, the order does not decide whether
any state within the Fourth Circuit satisfies the requirements of Chap-
ter 154, and it does not remove the incentive for states to acquire the
right to bring a mandamus action by meeting Chapter 154 require-
ments.
Nor can we identify any inconsistency between the aims of
AEDPA and Order No. 113. Like Order No. 113, AEDPA itself was
designed to streamline federal collateral review of capital sentences.
The statute expedites this process both by imposing time constraints
in some capital cases, see 28 U.S.C. § 2266, and by making federal
review of final state court decisions less searching, see 28 U.S.C.
§ 2254. In enacting AEDPA, Congress also sought to ensure the fair-
ness of collateral review of death sentences. Likewise, the Council's
order does not overlook considerations of fairness but instead outlines
steps to guarantee competent representation in capital cases in the fed-
eral courts.
Ultimately, Truesdale's claim that the Judicial Council's exercise
of its governance authority somehow conflicts with AEDPA is
unavailing. Congress was fully aware of the authority that Judicial
Councils exercise over the expeditious conduct of litigation in their
respective circuits. Yet AEDPA did not speak at all to the powers or
role of Judicial Councils, much less abridge or curtail them, raising
16
the strong presumption that the statute left unchanged the Councils'
responsibility under section 332. In this way, AEDPA left the Coun-
cils with the authority, and indeed the obligation, to make particular-
ized findings and responsive orders as necessary to address conditions
of delay within their respective jurisdictions.
In adopting Order No. 113, this circuit's Judicial Council simply
exercised its recognized power to address this problem. Before Order
No. 113, the Fourth Circuit faced a problem of delay in collateral
review of capital convictions and sentences. In the report accompany-
ing Order No. 113 the Judicial Council itself referred to the case of
Correll v. Thompson, 63 F.3d 1279 (4th Cir. 1995), where a § 2254
petition languished in the district court for three years. This case was
no aberration, and in fact delays of three to ten years were not
unusual. See, e.g., Roberts v. Moore, 1998 WL 77841 (4th Cir. Feb.
4, 1998) (unpublished) (§ 2254 petition pending in district court since
1987 prior to appeal); Gilbert v. Moore, 134 F.3d 642 (4th Cir. 1998)
(en banc) (§ 2254 petition pending in district court since 1984 prior
to appeal); Howard v. Moore, 131 F.3d 399 (4th Cir. 1997) (en banc)
(§ 2254 petition pending in district court since 1993 prior to appeal).
Unquestionably, such pervasive "delay in criminal cases is an impedi-
ment to the `expeditious administration of justice' within this circuit,"
Government of the Virgin Islands v. Bryan, 818 F.2d 1069, 1074 (3d
Cir. 1987) (quoting 28 U.S.C. § 332(d)). More than that, however,
such inordinate delays threaten respect for the rule of law.
The Council thus acted pursuant to its statutory authority in
responding to a recurrent problem of delay in collateral review of cap-
ital cases. Its response, Order No. 113, falls within the core of the
Judicial Council's § 332 power and took the precise form Congress
envisioned when it vested Judicial Councils with administrative
responsibility for the conduct of judicial business within the circuits.
It cannot be said that a Judicial Council has misused its authority
when it fulfills the very purpose for which Congress has established
it.
B.
Next Truesdale claims the Judicial Council violated the command
of 28 U.S.C. § 332(d)(1) that "[a]ny general order relating to practice
17
and procedure shall be made or amended only after giving appropriate
public notice and an opportunity for comment." Order No. 113, how-
ever, does not "relat[e] to practice and procedure," as that phrase is
commonly understood.
The relevant statute, 28 U.S.C. § 332, gives considerable discretion
to courts and circuit Judicial Councils to choose how to regulate court
business, whether by formal rules, standing orders, or other means.
And the only guidance the statute provides on what form these rules
should take, or the manner in which they should be promulgated, is
that "[a]ny general order relating to practice and procedure" requires
notice and comment. 28 U.S.C. § 332(d)(1). In drafting and consider-
ing Order No. 113, the Judicial Council addressed a simple, internal
problem: the delay within the Fourth Circuit in cases involving collat-
eral review of capital sentences. The Council selected an internal
solution to that problem and determined that no public notice and
comment period were necessary. Order No. 113 imposes requirements
on judges and courts within the Fourth Circuit. The order is not
addressed to litigants or litigators, the usual focus of procedural rules.
Nothing in the order alters any briefing or other deadlines placed on
counsel. Nothing creates a right in any party to enforce the court's
internal deadlines. Thus Order No. 113 is not a rule of practice or pro-
cedure for which notice and comment are required. Moreover, after
Order No. 113 was adopted, the Circuit Executive, in an abundance
of caution, sought an opinion from the General Counsel of the
Administrative Office of the United States Courts. Counsel's opinion
simply confirmed the Council's determination: because "[t]he order
and its accompanying report are internal in their focus," the require-
ment of notice and comment "is not implicated by this order." Letter
from William R. Burchill, Jr., Associate Director and General Coun-
sel, Administrative Office of the United States Courts, to Samuel W.
Phillips, Circuit Executive, United States Court of Appeals for the
Fourth Circuit 2 (Dec. 27, 1996).
C.
Finally, Truesdale has failed to identify how Order No. 113 has
caused him prejudice. A petitioner claiming that he is illegally
detained should desire his claims to be decided expeditiously. More-
over, this case has suffered from no shortage of due process. The
18
issues that lie at the heart of Truesdale's petition have been exten-
sively canvassed in eighteen years of litigation in state and federal
court. Rebecca Eudy was murdered in 1980, and this litigation has
been ongoing since then, including two trials, three sentencing hear-
ings, numerous state appeals, four petitions for certiorari to the United
States Supreme Court (one of which resulted in resentencing), multi-
ple state PCR proceedings, and now a petition for federal habeas
relief. Regardless of Order No. 113, this opinion would issue in a
timely fashion simply because of the obligation every court should
feel to render judgment promptly and conscientiously. We are satis-
fied that the jury's verdict and sentence have substantial evidentiary
support and that they were imposed in accordance with constitutional
requirements. Having heard oral argument from able counsel and hav-
ing reviewed Truesdale's claims with care, we affirm the judgment of
the district court dismissing the petition.
AFFIRMED
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