Thomas v. Taylor

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOUGLAS CHRISTOPHER THOMAS,
Petitioner-Appellant,

v.
No. 98-22
JOHN TAYLOR, Warden, Sussex I
State Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-1502-A)

Argued: January 27, 1999

Decided: March 16, 1999

Before ERVIN, LUTTIG, and KING, Circuit Judges.

_________________________________________________________________

Dismissed by published opinion. Judge Luttig wrote the opinion, in
which Judge Ervin and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Hunter Woodward, Jr., Lisa Palmer O'Donnell,
SHUTTLEWORTH, RULOFF & GIORDANO, P.C., Virginia Beach,
Virginia, for Appellant. Pamela Anne Rumpz, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee. ON BRIEF: Mark Evan Olive, VIRGINIA
CAPITAL REPRESENTATION RESOURCE CENTER, Richmond,
Virginia, for Appellant. Mark L. Earley, Attorney General of Vir-
ginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Douglas Christopher Thomas appeals the district court's dismissal
of his petition for writ of habeas corpus, challenging his conviction
in Virginia state court for capital murder. We deny Thomas' motion
for a certificate of appealability and dismiss the appeal.1

I.

Early in the morning of November 10, 1990, appellant Douglas
Christopher Thomas shot and murdered J.B. and Kathy Wiseman as
they slept in their home in Middlesex County, Virginia. At the time
of the murders, Thomas, who was then 17, was living nearby with his
aunt and uncle, Brenda and Herbert Marshall, and his niece, Lanie
Creech, then 12.

Thomas murdered the Wisemans at the behest of their daughter,
Jessica, then 14, whom he was dating, because the Wisemans had
been threatening to break up their relationship. On November 6, a few
days before the murders, Creech overheard Thomas plotting with Jes-
sica to "[g]et[ ] rid of her parents." Jessica asked Thomas "if he had
enough bullets"; Thomas said that he did. Jessica Wiseman and
Thomas then set a time to meet at the Wisemans' house in order to
carry out the murders.
_________________________________________________________________
1 Because appellant filed his petition for writ of habeas corpus on
March 25, 1997, after the enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) on April 24, 1996, our review of
the petition is governed by the deferential standards of 28 U.S.C.
§ 2254(d), as amended by the AEDPA. See Green v. French, 143 F.3d
865, 868 (4th Cir. 1998), cert. denied , 119 S. Ct. 844 (1999).

2
At some point during the week before the murders, the Marshalls,
with whom Thomas was living, traveled to Roanoke, Virginia, on a
hunting and fishing trip. In order to ensure that the Marshalls did not
return unexpectedly and thereby disrupt the plan to murder the Wise-
mans, Thomas drove to Roanoke and cut the brake lines on the Mar-
shalls' truck.

On November 9 -- the night of the murders -- Thomas admitted
to Creech that he was "going over to Jessica's . . . [t]o kill two peo-
ple." Thomas told Creech that his plan was to go over to the Wise-
mans' house, shoot the Wisemans, and return home and pretend to be
sleeping; Jessica would then come to the Marshalls' house and bang
on the door in feigned panic.

After talking to Creech, Thomas left his house with a shotgun
loaded with buckshot and went over to the Wisemans' house, stop-
ping along the way to smoke marijuana. Upon reaching the house,
Thomas climbed in through the window of Jessica's bedroom, and
briefly stopped to talk to Jessica and smoke more marijuana. Thomas
then went to the Wisemans' bedroom. There, he shot J.B. Wiseman
once in the head at close range, killing him instantly. He next pro-
ceeded to shoot Kathy Wiseman in the head, essentially destroying
the left side of her face.

Thomas then returned to Jessica's bedroom. Despite her horrific
injury, Kathy Wiseman was not immediately killed, but managed to
walk down the hall to Jessica's bedroom in order to check and see
whether her daughter was OK. Upon seeing her mother standing at
the doorway to her bedroom, Jessica yelled, "Oh God, Chris, please
shoot her again." According to his subsequent confession, Thomas
obliged her request, shooting Kathy Wiseman again in the head and
this time killing her instantly. Thomas then returned home; a short
time later, Jessica carried out the final stage of the plan, going to the
Marshalls' house and banging on the door in feigned panic. Later that
same day, Thomas confessed to both murders.

Thomas pled guilty to the first-degree murder of J.B. Wiseman and
related firearms charges, and not guilty to the capital murder of Kathy
Wiseman and related firearms charges. He was tried for the murder
of Kathy Wiseman as an adult. On Friday, August 23, 1991, a jury

3
found Thomas guilty on all counts. On Monday, August 26, the same
jury sentenced Thomas to death, finding as an aggravating factor that
his conduct in committing the murder was vile, horrible, or inhuman,
and finding no mitigating circumstances. See Va. Code § 19.2-264.2.
On November 11, the trial judge imposed the death sentence and sen-
tenced Thomas to a further sixty-seven years in prison for the murder
of J.B. Wiseman.2

On June 5, 1992, the Virginia Supreme Court affirmed Thomas'
conviction and sentence, see Thomas v. Commonwealth, 244 Va. 1
(1992), and on November 2, 1992, the United States Supreme Court
denied Thomas' petition for writ of certiorari , see Thomas v.
Virginia, 506 U.S. 958 (1992). On July 26, 1993, Thomas filed a peti-
tion for writ of habeas corpus in Virginia state court; on June 17,
1996, the Virginia Supreme Court dismissed the petition. On March
25, 1997, Thomas filed this petition for writ of habeas corpus in the
United States District Court for the Eastern District of Virginia. After
granting Thomas extensive discovery, the district court dismissed the
petition on June 11, 1998. From that order of dismissal, Thomas now
appeals.

II.

Appellant initially contends that he was deprived of due process
because he was sentenced by a jury, rather than by the trial judge.
Specifically, he claims that, under a state law in effect at the time of
his sentencing, he was entitled to be sentenced by the trial judge
because he was a juvenile defendant charged as an adult. The statute
read as follows:

In the hearing and disposition of felony cases properly
before a circuit court having criminal jurisdiction of such
offenses if committed by an adult, the court, after giving the
juvenile the right to a trial by jury on the issue of guilt or
innocence and upon a finding of guilty, may sentence or
commit the juvenile offender in accordance with the crimi-
nal laws of this Commonwealth or may in its discretion deal
_________________________________________________________________
2 Jessica Wiseman was tried as a juvenile and briefly placed in juvenile
detention. She is now free.

4
 with the juvenile in the manner prescribed in this law for the
hearing and disposition of cases in the juvenile court.

Va. Code § 16.1-272 (1991).3

As the district court properly concluded, see J.A. at 1322-23, appel-
lant's federal constitutional claim fails because it is procedurally
defaulted. Although appellant contended on direct appeal that his sen-
tence by the jury violated state law, he never asserted that such a vio-
lation rose to the level of a federal constitutional violation. See id. at
457-58 (brief of appellant on direct appeal); see generally Duncan v.
Henry, 513 U.S. 364, 365-66 (1995) ("If state courts are to be given
the opportunity to correct alleged violations of prisoners' federal
rights, they must surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution. If a habeas peti-
tioner wishes to claim that an evidentiary ruling at a state court trial
denied him the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal court, but in state
court.").4

On direct appeal, the Virginia Supreme Court did not address any
federal constitutional claim, but held only that, under the Virginia
statute, Thomas was properly sentenced. See Thomas, 244 Va. at 21-
23. Insofar as appellant continues to maintain that he was entitled to
be sentenced by the trial judge as a matter of Virginia law, we are
foreclosed from considering this argument because federal habeas
relief simply does not lie for errors of state law. See 28 U.S.C.
_________________________________________________________________
3 The statute has since been amended to clarify that a juvenile defen-
dant charged as an adult with capital murder may be sentenced by the
jury. See Va. Code § 16.1-272 (1998).
4 Even if appellant's federal constitutional claim were not procedurally
defaulted, we would reject it. Appellant advances no argument as to why
it would rise to the level of a federal constitutional violation for a jury,
instead of a trial judge, to impose a capital sentence on a juvenile defen-
dant. Appellant's reliance on Hicks v. Oklahoma, 447 U.S. 343 (1980),
is therefore inapposite. In Hicks, the defendant was sentenced to 40 years
in prison under a state statute subsequently found to be unconstitutional.
See id. at 345. Appellant can point to no similar "arbitrary deprivation"
of a due process interest in this case. Id. at 346.

5
§ 2254(d)(1) (allowing habeas review only for adjudication of claim
by state court that "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");
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the prov-
ince of a federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a federal court
is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States."). We therefore reject the
remainder of appellant's claim.

III.

Appellant next raises two types of claims of ineffective assistance
of counsel. Appellant first asserts that trial counsel was ineffective for
failing to investigate and present evidence suggesting that Jessica
Wiseman, and not appellant, fired the second of the two shots that
killed Kathy Wiseman. Appellant next contends that trial counsel was
ineffective in preparing and presenting expert psychological testi-
mony as mitigating evidence at sentencing. Applying the two-prong
standard of Strickland v. Washington, 466 U.S. 668 (1984), we con-
clude that the state court's rejection of each of these claims was not
unreasonable.

A.

Appellant first asserts that trial counsel was ineffective for failing
to investigate and present evidence suggesting that Jessica Wiseman,
and not appellant, fired the second of the two shots that killed Kathy
Wiseman. Appellant claims that he told his court-appointed psycho-
logical expert, Dr. Earle H. Williams, that he did not fire the second
shot. See, e.g., J.A. at 747 (report of Dr. Williams of March 13, 1991)
(noting that "Chris intimated that he did not fire all the shots"); id. at
755-56 (report of Dr. Williams of August 6, 1991) (reporting that
Thomas said, "I only shot once"). Appellant contends, however, that
trial counsel failed adequately to pursue this lead.

We reject appellant's argument because trial counsel's "failure" to
investigate evidence that appellant did not fire the second shot was
not unreasonable. First, overwhelming evidence indicated that appel-

6
lant did indeed fire the second shot. Appellant repeatedly told trial
counsel that he fired both of the shots that killed Kathy Wiseman. See,
e.g., id. at 765, 935, 937, 1112.5 Trial counsel was evidently aware of
the fact that Williams had reported that appellant had indicated that
he might not have fired the second shot,6 and confronted appellant
with this information: however, even after trial counsel "begged"
appellant to "come clean" about the second shot, appellant reiterated
that he had fired both shots. Id. at 765, 937, 1018, 1114-15, 1117-18.7

In view of appellant's repeated assertions that he fired both shots,
trial counsel was under no obligation to investigate further the possi-
bility that appellant did not fire the second shot. As the Supreme
Court noted in Strickland:

The reasonableness of counsel's actions may be determined
or substantially influenced by the defendant's own state-
ments or actions. Counsel's actions are usually based, quite
properly, on informed strategic choices made by the defen-
dant and on information supplied by the defendant. In par-
ticular, what investigation decisions are reasonable depends
critically on such information. For example, when the facts
that support a certain potential line of defense are generally
known to counsel because of what the defendant has said,
the need for further investigation may be considerably
diminished or eliminated altogether. And when a defendant
has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's
_________________________________________________________________
5 Appellant did not testify at trial, and only recently swore out an affi-
davit that he did not fire the second shot. See J.A. at 1332-34.
6 Appellant contends that trial counsel could not possibly have con-
fronted appellant with Dr. Williams' testimony because Dr. Williams'
final report was dated on August 6 and trial counsel did not meet with
appellant between August 6 and the trial. This argument, however, is dis-
ingenuous: Dr. Williams reported the possibility that appellant did not
fire the second shot as early as March 13, 1991, in a letter to appellant's
counsel. See id. at 747.
7 Trial counsel even told appellant that there was no reason to lie in
order to protect Jessica Wiseman because she had already been sen-
tenced. See id. at 1141.

7
 failure to pursue those investigations may not later be chal-
lenged as unreasonable. In short, inquiry into counsel's con-
versations with the defendant may be critical to a proper
assessment of counsel's investigation decisions, just as it
may be critical to a proper assessment of counsel's other liti-
gation decisions.

Strickland, 466 U.S. at 691; see also Barnes v. Thompson, 58 F.3d
971, 979-80 (4th Cir. 1995) ("[T]rial counsel. . . may rely on the
truthfulness of his client and those whom he interviews in deciding
how to pursue his investigation.").

Despite the fact that trial counsel was under no obligation to inves-
tigate further the possibility that appellant did not fire the second shot,
trial counsel nevertheless did so. First, trial counsel interviewed "doz-
ens of people," none of whom "even remotely suggested" that Jessica
Wiseman fired the second shot. J.A. at 1017.8 Further, trial counsel
thoroughly investigated the forensic evidence and concluded that
there was no reason to believe that appellant did not fire the second
shot. See id. at 935-36, 938, 1113.9 In view of the fact that trial coun-
sel was under no obligation to investigate further the theory that
appellant did not fire the second shot, but nevertheless thoroughly did
so, we agree with the district court that trial counsel's actions were
reasonable, see J.A. at 1299, and therefore reject appellant's first inef-
fective assistance claim.10
_________________________________________________________________
8 Appellant notes that his mother recently testified in an affidavit that
appellant specifically said that he did not fire the second shot. See id. at
771-72. Trial counsel spoke to appellant's mother before the trial, how-
ever, and found her uncooperative. See id. at 764-65.
9 We note that the only contrary forensic evidence presented by appel-
lant is the report of a forensic expert that was never presented to any
court below. See id. at 1331. Appellant has failed to present any evidence
that he was somehow prohibited from presenting the report below, and
therefore we do not consider it. See Keeney v. Tamayo-Reyes, 504 U.S.
1, 8-12 (1992).
10 Even if trial counsel's failure further to investigate appellant's claims
were somehow unreasonable, it would not be prejudicial because appel-
lant would still have been guilty of capital murder even if he had only
fired the first shot. See infra Part IV.

8
B.

Appellant next asserts that trial counsel was ineffective in prepar-
ing and presenting expert psychological testimony as mitigating evi-
dence at sentencing. Appellant essentially makes two alternative
claims. First, he argues that trial counsel failed adequately to prepare
Dr. Earle Williams, his court-appointed psychiatric expert, to testify
at sentencing. Second, he contends that trial counsel erred by using
the prosecution's own psychological expert, Dr. Henry Gwaltney,
rather than Dr. Williams, to testify as to mitigation.

We reject both of appellant's claims, concluding that trial counsel's
actions in dealing with the psychological experts were reasonable. As
regards appellant's claim concerning trial counsel's preparation of Dr.
Williams, trial counsel testified that they initially had a very favorable
impression of Dr. Williams, citing his "impressive" credentials, "evi-
dent" enthusiasm for the case, and "favorabl[e]" testimony for appel-
lant at an initial suppression hearing. See J.A. at 766. Although Dr.
Williams appears to have had no prior experience testifying in capital
cases, see id. at 875-76, trial counsel spoke to him "on numerous
occasions to see how his work was progressing," id. at 766.11 As the
sentencing hearing approached, however, trial counsel became aware
that Dr. Williams was scared about testifying. See id. at 766-67, 973,
983, 1097. We see nothing in the record to indicate that trial counsel
failed adequately to prepare Dr. Williams to testify at sentencing. To
the extent that Dr. Williams was unprepared to testify, it was not
because trial counsel was ineffective, but rather because Dr. Williams
was. We therefore reject, as we have in the past, the effort by an
appellant to recast a claim concerning the effectiveness of a court-
appointed psychological expert as a claim of ineffective assistance of
counsel. See, e.g., Wilson v. Greene, 155 F.3d 396, 400-03 (4th Cir.),
cert. denied sub nom. Wilson v.Taylor, 119 S. Ct. 536 (1998).12
_________________________________________________________________
11 Although, as appellant points out, Dr. Williams' time records indi-
cate that he actually met with trial counsel for only two hours, the time
records do not indicate how often, or for how long, he talked with trial
counsel on the telephone, though they do list some long-distance charges
for such conversations. See J.A. at 880.
12 Appellant contends that Dr. Gwaltney advised trial counsel to call
Dr. Gary Hawk, another psychological expert, to assist in preparing the

9
As regards appellant's claim concerning trial counsel's use of Dr.
Gwaltney, trial counsel's decision to do so was reasonable as a matter
of trial strategy. On the eve of the sentencing hearing, trial counsel
approached Dr. Gwaltney, who had previously expressed his willing-
ness to testify on appellant's behalf. See J.A. at 987-88, 1025-26.
Trial counsel concluded, not unreasonably, that it would be more con-
vincing to use the prosecution's own expert to testify in mitigation.
See id. at 972-73. Trial counsel's decision was especially reasonable
because Dr. Gwaltney agreed to testify to exactly the same mitigating
circumstance to which Dr. Williams would have testified: namely,
that Jessica Wiseman was the motivating factor behind appellant's
actions in murdering the Wisemans. See id. at 273. Trial counsel but-
tressed Dr. Gwaltney's testimony with the testimony of appellant's
mother and schoolteachers, who testified about appellant's troubled
youth and susceptibility to the influence of others. See id. at 1316.

Appellant makes two further claims regarding trial counsel's use of
Dr. Gwaltney, neither of them availing. First, appellant contends that
Dr. Gwaltney was unprepared to testify because he had not completed
a full mitigation review. See J.A. at 887-88. Appellant even asserts,
without citation to the record, that Dr. Gwaltney asked trial counsel
to seek a continuance in order to give him enough time to conduct
such a review. According to trial counsel, however, far from indicat-
ing that he was unprepared to testify, Dr. Gwaltney was "chomping
at the bit" to testify on appellant's behalf. Id. at 1026. Further, Dr.
Gwaltney spent several days examining appellant, conducted a variety
of psychological and physical tests, spoke to a number of people with
knowledge of appellant's behavior, and reviewed all of the relevant
records, and therefore cannot be said to have been unprepared to tes-
tify at the mitigation hearing. See J.A. at 890-91.

Second, appellant argues that trial counsel should nevertheless
have also called Dr. Williams because he would have testified as to
an additional mitigating circumstance -- namely, that appellant was
_________________________________________________________________
defense, and even spoke to Dr. Hawk himself, but that trial counsel failed
to pursue the matter. See J.A. at 884-85. There is no evidence, however,
that trial counsel had any concerns regarding Dr. Williams at the time of
Dr. Gwaltney's suggestion, or indeed at any time until just prior to the
sentencing hearing.

10
emotionally and mentally disturbed at the time of the murders. See id.
at 756. Trial counsel, however, was aware of the fact that Dr. Gwalt-
ney disagreed with Dr. Williams' assessment, see id. at 893, and
indeed had said that he would "destroy" Dr. Williams' testimony on
this point, see id. at 767, 1097. Instead of undermining the prosecu-
tion's own expert's testimony as to the controlling influence of Jes-
sica Wiseman by presenting controverted testimony as to appellant's
emotional and mental state, trial counsel decided not to call Dr. Wil-
liams to testify on the latter point at all. See id. at 1020-21. We con-
clude that this decision, too, was reasonable as a matter of trial
strategy. In sum, because we find no fault with trial counsel's prepa-
ration and presentation of expert psychological testimony at sentenc-
ing, we reject appellant's second ineffective assistance claim.

IV.

Appellant next claims that he was actually innocent of Kathy Wise-
man's murder because he did not fire the second shot. Appellant
appears to be making three distinct claims, if unwittingly. First, appel-
lant contends that the district court should have excused his proce-
dural default on various constitutional claims because of his
"gateway" claim of actual innocence. See Schlup v. Delo, 513 U.S.
298 (1995). Second, appellant makes a free-standing claim of actual
innocence. See Herrera v. Collins, 506 U.S. 390 (1993). Third, appel-
lant argues that, because he did not fire the second shot, he should not
have been eligible for the death penalty because the aggravating cir-
cumstance of vileness would no longer exist. See Sawyer v. Whitley,
505 U.S. 333 (1992).

We begin by considering appellant's claims under Schlup and
Herrera. Regardless of whether we apply the more lenient standard
of Schlup or the stricter standard of Herrera, appellant's claims fail
because appellant would still have been guilty of capital murder under
Virginia law even if he had not fired the second shot. The medical
examiner testified that the first shot, like the second, "would be
lethal." J.A. at 122. Under Virginia law, an individual who fires such
a shot can be found guilty of capital murder. "[W]here two or more
persons take `direct part' in inflicting fatal injuries, each joint partici-
pant is an `immediate perpetrator' for the purposes of the capital mur-
der statutes." Strickler v. Commonwealth, 241 Va. 482, 495 (1991)

11
(citation omitted). Indeed, relying on its reasoning in Strickler, the
Virginia Supreme Court subsequently upheld a conviction for capital
murder on almost identical facts, in a case in which the defendant and
another individual each fired shots that "could have been lethal" into
the victim's head. Williams v. Commonwealth, 248 Va. 528, 545
(1994). Therefore, even if appellant did not fire the second shot --
which, as a factual matter, is dubious in any event in view of the over-
whelming evidence to the contrary -- he could not have been actually
innocent as a legal matter. Consequently, we reject appellant's claims
under Schlup and Herrera.

Appellant's claim under Sawyer is no more availing. Appellant
contends that, provided that he did not fire the second shot, he should
not have been eligible for the death penalty because he would no lon-
ger have qualified for the aggravating factor of vileness. For the
aggravating factor of vileness to apply, the conduct of the defendant
in committing the murder must be "outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity of mind or
an aggravated battery to the victim." Va. Code§ 19.2-264.2 (1998).
Appellant contends that, had he not fired the second shot, he would
not qualify for the aggravating factor of vileness because the element
of aggravated battery, caused by the lapse of time between the two
shots he fired, would no longer exist. However, as the Virginia
Supreme Court noted on direct appeal, appellant's argument fails
because, even assuming that his actions would no longer constitute
aggravated battery, they would still evince depravity of mind, in view
of the extraordinary premeditation involved and the execution-style
nature of the killings, and the lack of any evident remorse. See
Thomas, 244 Va. at 24-25. Because appellant would therefore still
have qualified for the death penalty even if he had not fired the sec-
ond shot, appellant's claim under Sawyer, like his claims under
Schlup and Herrera, must fail. Because appellant's actual innocence
claims would fail even on the merits, they certainly fail under the
more deferential AEDPA standard of review, and we therefore reject
them.

V.

In connection with his substantive claims, appellant contends that
the district court abused its discretion by refusing to grant his requests

12
for the appointment of a forensic expert to develop his claim of actual
innocence, for the deposition of Jessica Wiseman for the same pur-
pose, and for the deposition of Dr. Williams to develop his claim of
ineffective assistance of counsel.13

To be entitled to discovery in a habeas proceeding, the petitioner
must make a showing of good cause. See R. Governing Section 2254
Cases 6(a). We conclude that the district court did not abuse its dis-
cretion by denying appellant's requests because appellant failed to
make the requisite showing with regard to any of his requests. Neither
a forensic expert nor Jessica Wiseman could resuscitate appellant's
claim of actual innocence because, even if either were able to estab-
lish that appellant did not fire the second shot at Kathy Wiseman,
appellant's claim would still fail as a matter of law. See supra Part
IV. Further, the deposition of Dr. Williams would be similarly
unavailing, because Dr. Williams' testimony would have no bearing
on the reasonableness, based on trial counsel's perceptions at the
time, of trial counsel's strategic decision to call the prosecution's psy-
chiatric expert rather than Dr. Williams. See supra Part III.B. "The
opportunity for an evidentiary hearing in a federal habeas corpus pro-
ceeding is mandatory only where there is a factual dispute which, if
resolved in the petitioner's favor, would entitle the petitioner to relief
and the petitioner has not received a full and fair evidentiary hearing
in state court." East v. Scott, 55 F.3d 996, 1000 (5th Cir. 1995).
Because the requested discovery would have had no bearing on any
of appellant's substantive claims, we conclude that the district court
properly exercised its discretion in denying appellant's requests.

VI.

Finally, appellant contends that the district court improperly
applied the more deferential standard of review in 28 U.S.C.
§ 2254(d) because the court looked only to whether his claims had
been "decided" by a state court, not to whether they had been "adjudi-
cated on the merits," as is required for section 2254(d) to apply. As
this Court and several of our sister circuits have noted, however, the
phrase "adjudication on the merits" in section 2254(d) excludes only
_________________________________________________________________
13 We note that the district court did grant numerous of defendant's
other discovery requests. See J.A. at 622-24.

13
claims that were not raised in state court, and not claims that were
decided in state court, albeit in a summary fashion. See Wright v.
Angelone, 151 F.3d 151, 156-57 (4th Cir.), cert. denied, 119 S. Ct.
313 (1998); accord Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.
1997); Hennon v. Cooper, 109 F.3d 330, 334-35 (7th Cir.), cert.
denied, 118 S. Ct. 72 (1997).

Appellant also contends that the district court failed to evaluate
whether the Virginia procedural default rule, as established in Slayton
v. Perrigan, 215 Va. 27 (1974) and applied against some of appel-
lant's claims, constituted an adequate and independent state ground
for decision. This court has repeatedly recognized, however, that the
Slayton rule does constitute an adequate and independent state
ground. See, e.g., Wright, 151 F.3d at 159-60. Further, appellant does
not even allege, much less demonstrate, that the Virginia state courts
have applied the rule in Slayton inconsistently. We therefore conclude
that the district court properly enforced the default of claims barred
under Slayton, and reject appellant's challenge.

CONCLUSION

Following the dismissal of his federal habeas corpus petition,
Thomas filed a motion in this court for a certificate of appealability.
See 28 U.S.C. § 2253(c)(2). Because we conclude that Thomas has
failed to make the requisite "substantial showing of the denial of a
constitutional right," id., we deny Thomas' motion and dismiss his
appeal.

DISMISSED

14