Filed: June 29, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-31
(CA-97-258-2)
Everett Lee Mueller,
Petitioner - Appellant,
versus
Ronald J. Angelone, etc.,
Respondent - Appellee.
O R D E R
The court amends its opinion filed June 14, 1999, as follows:
On page 16, first full paragraph, line 24 -- “See supra n.7"
is corrected to read “See supra n.8.”
On page 23, first full paragraph, line 9 -- the apostrophe on
the word “officers” is deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EVERETT LEE MUELLER,
Petitioner-Appellant,
v.
No. 98-31
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-97-258-2)
Argued: March 2, 1999
Decided: June 14, 1999
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Dismissed by published opinion. Judge Luttig wrote the opinion, in
which Judge Motz and Judge Traxler joined.
_________________________________________________________________
COUNSEL
ARGUED: Jennifer Leigh Givens, VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Richmond, Virginia, for
Appellant. Robert H. Anderson, III, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: Robert Edward Lee, Jr., VIRGINIA CAPI-
TAL REPRESENTATION RESOURCE CENTER, Richmond, Vir-
ginia; Thomas B. Shuttleworth, Lawrence H. Woodward, Jr.,
SHUTTLEWORTH, RULOFF & GIORDANO, Virginia Beach, Vir-
ginia, for Appellant. Mark L. Earley, Attorney General of Virginia,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Everett Lee Mueller confessed on videotape to the rape and murder
of ten-year old Charity Powers. He was subsequently convicted of,
among other offenses, the rape and capital murder of Powers and sen-
tenced by the jury to death. After exhausting state remedies, Mueller
filed a petition for a writ of habeas corpus in the United States District
Court for the Eastern District of Virginia. The district court dismissed
his petition and Mueller appeals. Concluding that none of Mueller's
claims provides a basis for habeas relief, we deny his application for
a certificate of appealability and dismiss the appeal.
I.
The following facts of the case, taken almost verbatim from the
decision of the Virginia Supreme Court on direct appeal, are not in
dispute.
On the evening of October 5, 1990, Taryn Potts dropped her 10-
year old daughter, Charity Powers, off at a skating rink for the eve-
ning. Ms. Potts had arranged for a family friend to pick Charity up
later that night. Tragically, the friend fell asleep and never made it to
the rink. When Potts arrived home at 3:00 a.m. the next morning and
discovered that Charity was not home, she immediately called the
police.
Kevin Speeks, who knew Charity, later testified that he had seen
her at a Hardee's restaurant near the skating rink at about 12:50 a.m.
on October 6, 1990. Speeks also observed a white male, approxi-
mately thirty years old, medium height, with an unkempt appearance,
2
driving a cream-colored station wagon with wood siding through the
Hardee's parking lot several times. Speeks also testified to seeing the
same man standing by the side of the restaurant, near where Charity
Powers was sitting on a curb. Everett Lee Mueller fit Speeks' general
description and was known to drive a similar car.
In conversations with police on October 8 and 9, Mueller admitted
speaking with a young, white female on the night of October 5, 1990,
at a fast food restaurant near the skating rink that might have been
Hardee's. As a result of information learned from intimates of Muel-
ler's, the police searched for Charity's body near his home. On Febru-
ary 8, 1991, approximately 900 feet behind Mueller's house,
investigators found "a clump of hair and what looked like some white
bone sticking out of the ground." The police then exhumed Charity's
body. One of the investigators also found a knife sticking in the
ground about 174 feet from the grave site.
On February 12, 1991, the police arrested Mueller. After he was
advised of his Miranda rights, Mueller agreed to talk with Detective
Wayne R. Garber of the Chesterfield County Police Department and
Special Agent John M. Palfi of the FBI. Garber and Palfi questioned
Mueller, on videotape, for approximately four and one-half hours.
Just over two hours into the questioning, Mueller confessed to having
intercourse with and murdering Charity. Mueller stated that he had
agreed to give Charity a ride home from the restaurant but that he
drove her to his house instead. He admitted that he was thinking about
having sex with her and he stated that he thought the 4'8", ninety-
pound Charity was eighteen or nineteen years old. Mueller stated that
she agreed to have sex with him, and told him that she wanted to go
home afterwards. Mueller admitted taking Charity to the woods
behind his house and having intercourse with her there. He stated that
although he had a knife nearby, he did not use it.
Mueller told the investigators that he then strangled Charity to
death because he was afraid that she would report the incident to the
police. He also claimed that he had been drinking heavily on the night
of the murder and that, the next morning, he did not know whether
he had dreamed about the previous night's events or whether they had
actually occurred. According to Mueller, when he went to check the
woods, he saw Charity's body. He then purchased a shovel from a
3
local store, buried the body, and burned Charity's clothes and jewelry
nearby.
After making this confession, Mueller led the police to the site
where he had buried the body. He also brought them to where he had
burned the clothing and jewelry, as well as to the area where he had
left the knife. This was the same area where the police had earlier
found a knife. Additionally, Mueller indicated that he had had inter-
course with Charity in an area that was approximately fifteen feet
from where the knife was found.
The doctor who conducted the autopsy on Charity's body testified
that her throat had been cut to the depth of one inch, and that the
cause of death was an "acute neck injury." She also testified that there
were "irregular holes in the area where each nipple would be," which
she believed to be the result of an injury, but could not determine their
cause or whether they occurred before or after death. Finally, the doc-
tor testified to the existence of evidence consistent with sexual pene-
tration.
On September 11, 1991, Mueller was convicted after a jury trial in
the Chesterfield County Circuit Court of abduction with intent to
defile and of rape, for which he was sentenced to two life terms. He
was also convicted of capital murder in the commission of abduction
with intent to defile and of capital murder in the commission of, or
subsequent to, rape. After a capital sentencing hearing on September
12, the jury found Mueller to be a future danger and his crime to be
vile, and sentenced him to death on the two capital murder counts.1
_________________________________________________________________
1 At Mueller's sentencing hearing, the Commonwealth introduced evi-
dence detailing petitioner's long history of sexual assaults. Four women,
Kimahli Peregoy, Laura Kesterson, Carol Newsome, and the defendant's
own sister Carol Mueller, testified that he had raped them at knife point.
Mueller's testimony on his own behalf was perhaps even more damaging
to his cause. He asserted that the videotape of his confession had been
altered and that he was innocent, admitting only to burning Charity's
clothes and, a week later, burying her body. When asked if he felt any
remorse for the rape of Kimahli Peregoy, Mueller responded: "Which
one is that? Ha, ha." As he was leaving the witness stand, Mueller said,
"Get this God damn shit over with so that I can go smoke a cigarette."
4
Mueller appealed to the Supreme Court of Virginia, which affirmed
in all respects, Mueller v. Commonwealth, 422 S.E.2d 380 (1992)
("Mueller I"), and subsequently denied his petition for rehearing.
Mueller next filed a petition for a writ of certiorari in the Supreme
Court of the United States, which was denied on April 19, 1993.
Mueller v. Virginia, 507 U.S. 1043 (1993). Having exhausted his
options on direct appeal, Mueller then initiated state habeas proceed-
ings by filing a petition in the Circuit Court of Chesterfield County.
The Circuit Court dismissed the petition, and Mueller filed a petition
of appeal in the Virginia Supreme Court. By order dated April 1,
1996, that court awarded an appeal, limited to a single assignment of
error challenging the exclusion of evidence or argument dealing with
Mueller's parole status. After briefing and oral argument, the Virginia
Supreme Court affirmed the denial of habeas corpus relief, Mueller
v. Murray, 478 S.E.2d 542 (1996), and on June 10, 1997, the court
denied his petition for rehearing.
Having exhausted all available state remedies, Mueller filed his
first petition for federal habeas corpus relief under 28 U.S.C. § 2254
on July 18, 1997. The district court referred the petition to a Magis-
trate Judge, who applied the revisions to chapter 153 of Title 28 of
the United States Code (including revisions to section 2254) enacted
on April 24, 1996, as part of the Antiterrorism and Effective Death
Penalty Act ("AEDPA") and recommended dismissal. The district
court entered an opinion and final order on August 7, 1998, dismiss-
ing his habeas petition. Mueller appeals.2
II.
Before reaching the merits of his appeal, we first consider Muel-
ler's arguments that the AEDPA should not apply to him because its
application has an impermissible retroactive effect and that, in any
event, the Act is unconstitutional because it requires federal courts to
abdicate their obligation to exercise the judicial power to enforce the
Supremacy Clause of the United States Constitution. U.S. Const., Art.
_________________________________________________________________
2 Mueller named Ronald Angelone, Director of the Virginia Depart-
ment of Corrections, as Respondent in his petition. For ease of reference,
we refer to the respondent as "the Commonwealth" throughout this opin-
ion.
5
VI, ¶ 2. Both arguments are without merit, the second bordering on
the frivolous. We consider them in turn.
A.
We address first petitioner's contention that the district court erred
in applying the AEDPA to his habeas petition because the new sec-
tion 2254 had an impermissible retroactive effect in his case. Specifi-
cally, petitioner argues that the Supreme Court did not intend its
holding in Lindh v. Murphy, 521 U.S. 320 (1997), that "the new pro-
visions of chapter 153 generally apply only to cases filed after the Act
became effective," id. at 336, to extend to cases filed after the date
of enactment, like his, in which the Act's application would have a
genuinely retroactive effect on a petitioner's pre-enactment litigation
conduct.3
Disposition of this claim requires us to consider the apparent ten-
sion between two sets of recent courts of appeals cases. In the first,
we and other courts of appeals have explicitly read Lindh to hold that
the AEDPA amendments to chapter 153 of Title 28 of the United
States Code apply to every petition filed after the date of the Act's
enactment. In the second, we and other courts have read Lindh, more
narrowly, as permitting application of several of the new provisions
of the chapter only where the effect of doing so is not impermissibly
retroactive. Petitioner argues that the latter understanding of Lindh is
the correct one, and that application of the new section 2254 to his
case has exactly that impermissible retroactive effect. Although we
agree with petitioner's interpretation of Lindh, we disagree with his
claim because we conclude that the amended section 2254 does not
have an impermissible retroactive effect under the analytical frame-
work of Landgraf v. USI Film Products, 511 U.S. 244 (1994). We
therefore reaffirm our earlier holdings applying that section as
amended to cases filed after the enactment date of the Act.
_________________________________________________________________
3 Sections 101-06 of Title I of the AEDPA amended sections 2244 and
2253-55 of chapter 153 of Title 28 of the United States Code, which gov-
ern all habeas corpus proceedings in the federal courts. 110 Stat. 1217-
1221. Section 107 of the Act created a new chapter 154, which estab-
lishes special rules applicable in federal capital habeas corpus proceed-
ings if a State meets certain conditions.
6
(1)
In Lindh, the Supreme Court reversed a decision of the Seventh
Circuit that the new provisions of chapter 153 applied to non-capital
federal habeas cases pending on April 24, 1996, the date of the
AEDPA's enactment. Lindh v. Murphy, 96 F.3d 856 (1996). The
Court did not, however, dispute -- or even, in fact, directly address
-- the Seventh Circuit's conclusion that application of the new sec-
tion 2254 to cases pending at the date of the Act's enactment would
not have an impermissible retroactive effect under Landgraf. Rather,
employing "normal rules of construction," the Court concluded, from
the language of the Act, that Congress had intended "to apply the
amendments to chapter 153 only to such cases as were filed after the
statute's enactment," Lindh, 521 U.S. at 326, and thus not to cases
pending at enactment. For this latter class of cases, the Court held, it
was clear that Congress had "remove[d] even the possibility of retro-
activity." Id. (emphasis added). The Court divined Congress' intent
regarding chapter 153 by drawing the negative implication from sec-
tion 107(c) of the Act, which explicitly extends the newly-created
chapter 154 to cases pending on the date of enactment.4 The Court
thus dispensed with the necessity of undertaking a Landgraf retroac-
tivity analysis, concluding that Congress' inferred intent not to apply
the new provisions of chapter 153 to pending non-capital habeas cases
was dispositive of the reach of those provisions.
The Court in Lindh framed its holding by stating "that the negative
implication of sec. 107(c) is that the new provisions of chapter 153
generally apply only to cases filed after the Act became effective."
Lindh, 521 U.S. at 336 (emphasis added). Many courts, including this
one, have cited this statement in support of the proposition that the
provisions of the AEDPA amending section 2254 necessarily do
apply to habeas petitions filed after April 24, 1996, the date on which
the Act was signed into law and became effective. See, e.g., Green v.
French, 143 F.3d 865, 868 (4th Cir. 1998), cert. denied, 119 S. Ct.
844 (1999); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir.), cert.
denied sub nom. Breard v. Greene, 523 U.S. 371 (1998); Rivera v.
_________________________________________________________________
4 Section 107(c) of the Act provides that "Chapter 154 . . . shall apply
to cases pending on or after the date of enactment of the Act." 110 Stat.
1226.
7
Sheriff of Cook County, 162 F.3d 486, 489 (7th Cir. 1998); Fields v.
Johnson, 159 F.3d 914, 915 (5th Cir. 1998); Neelley v. Nagle, 138
F.3d 917, 921 (11th Cir. 1998), cert. denied, 119 S. Ct. 811 (1999).
Several courts, including this one, however, have recently con-
cluded, in considering whether other of the new provisions of chapter
153 apply to cases filed after the date of enactment, that "[t]he Court's
holding [in Lindh] that Chapter 153 generally applies only to cases
filed after enactment does not imply that it applies where a retroactive
effect would thereby result." In re Hanserd, 123 F.3d 922, 933 n.22
(6th Cir. 1997) (holding that the AEDPA did not apply to bar filing
of second or successive petition under section 2255 where first peti-
tion was filed before date of enactment). See In re Minarik, 166 F.3d
591 (3rd Cir. 1999) (concluding, after thorough analysis, that Lindh
did not mandate application of amended section 2244's limitation on
the filing of second or successive federal habeas petitions to a case
in which its application would have a genuine retroactive effect).
Most significantly, this latter understanding of the limits of the
Court's holding in Lindh has also been confirmed on one occasion by
this court. In Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998), we
modified the application of the new one-year statute of limitations on
habeas petitions to cases in which a conviction became final more
than one year prior to the date of the AEDPA's enactment. Noting
that under Lindh, new section 2244(d)(1) "generally appl[ied]" to the
case, the panel nonetheless employed Landgraf's analytical frame-
work to determine whether we would apply its statute of limitations
to petitions filed after enactment by prisoners whose statutory right to
seek federal habeas relief had accrued prior to the AEDPA's enact-
ment. Id. at 372. Because the effect of applying section 2244(d) (as
well as section 2255, the analogous statutory provision governing
habeas petitions filed by federal prisoners) to bar such petitions would
have been impermissibly retroactive, we joined six of our sister cir-
cuits in extending the limitations period in such cases for one year
after the date of enactment, regardless of the date of accrual. See
United States v. Flores, 135 F.3d 1000, 1002-04 (5th Cir. 1998), cert.
denied, 119 S. Ct. 846 (1999); Burns v. Morton, 134 F.3d 109, 111
(3rd Cir. 1998); Calderon v. United States Dist. Ct. for the Cent. Dist.
of Cal., 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), overruled on other
grounds, 163 F.3d 530 (9th Cir. 1998); United States v. Simmonds,
111 F.3d 737, 744-46 (10th Cir. 1997); Peterson v. Demskie, 107
8
F.3d 92, 93 (2d Cir. 1997); Lindh, 96 F.3d at 865-66. Mueller argues
that the Landgraf analysis applies as well to the application of section
2254 to his case, and that even after Lindh, amended section 2254 is
not applicable to a petition filed post-enactment if such application
would not pass muster under Landgraf.
We agree with petitioner and those courts that, having had cause
to consider the question in full, have concluded that the Supreme
Court did not hold in Lindh that courts are necessarily to apply the
new provisions of chapter 153 to all habeas petitions filed after April
24, 1996. More particularly, we hold that Lindh did not foreclose --
and indeed contemplated -- continuing resort to the Landgraf analy-
sis in order to ensure that application of chapter 153's new provisions
is not impermissibly retroactive in such cases.
One could be forgiven for taking a contrary meaning from the
Court's delphic statement of its holding in Lindh. As recounted above,
the Court held in Lindh that the "negative implication of § 107(c) is
that the new provisions of chapter 153 generally apply only to cases
filed after the Act became effective." Lindh, 521 U.S. at 336 (empha-
sis added). The most natural reading of this concluding language --
and the one courts have appeared uniformly to adopt in the absence
of a direct challenge to a new provision's retroactivity in a case filed
post-enactment -- is that the new provisions of chapter 153 will apply
to cases filed after enactment and will only apply to those cases,
except in those limited circumstances, discussed at some length ear-
lier in the opinion, in which because of section 107(c) and the incor-
poration by chapter 154 of certain provisions of chapter 153, these
provisions apply as well to pending capital habeas cases. See Lindh,
521 U.S. at 326 ("The statute reveals Congress's intent to apply the
amendments to chapter 153 only to such cases as were filed after the
statute's enactment (except where chapter 154 otherwise makes select
provisions of chapter 153 applicable to pending cases.")). Thus, at
first blush, the Court's holding could appear simply to be that the new
provisions of chapter 153, including section 2254, apply to all cases
filed after enactment of the AEDPA, but that some of the new sec-
tions will apply, where explicitly provided for, in a broader class of
cases as well.
9
While this interpretation of the Court's language is correct on one
level, it is, in a fundamental sense, incomplete. Although the Court in
Lindh did "remove the possibility" of the new provisions applying to
pending cases, it did not mean to suggest that in cases filed after
enactment the new provisions would necessarily apply. Rather, the
Court left open the possibility, consistent with Landgraf, that it would
not apply the new provisions of chapter 153 even to a post-enactment
petition if doing so would result in an impermissible retroactive
effect. See Lindh, 521 U.S. at 326 ("In sum, if the application of a
statutory term would be retroactive as to [petitioner], the term will not
be applied, even if in the absence of retroactive effect, we might find
the term applicable."). On this reading of Lindh, the Court's holding
that the AEDPA generally applies only to that class of cases filed
post-enactment5 was not intended to supersede, even with respect to
the new chapter 153 provisions, the Landgraf rule that a new statute
will not be applied in any case in which its application would have
a genuinely retroactive effect unless Congress has clearly manifested
its intent to override the judicial presumption against such retroactiv-
ity. See Lindh, 521 U.S. at 328 (noting the"clear statement required
_________________________________________________________________
5 As the Seventh Circuit recognized, the category of cases defined as
those "filed after the date of enactment" is actually comprised of several
different classes of cases for the purpose of identifying retroactive effect.
For instance, the category encompasses those cases in which the relevant
primary conduct -- the crime itself -- was committed after April 24,
1996, as well as cases in which the primary conduct was completed
before April 24, 1996 but all secondary conduct-- state court proceed-
ings -- took place after the enactment date and, finally, cases like the
one before us today, in which both the crime and all state court proceed-
ings were completed before April 24, 1996, but the federal habeas peti-
tion was not filed until after that date. See Lindh, 96 F.3d at 861.
Although none of these types of cases presents classic retroactivity con-
cerns, see Pratt v. United States, 129 F.3d 54, 58 (1st Cir. 1997) (begin-
ning its retroactivity analysis "by remarking the obvious: applying a
statute to a pleading that was filed after the statute's effective date is not
really a `retroactive' application in the classic sense"), all are nonetheless
subject under Landgraf to a retroactivity analysis. See Landgraf, 511
U.S. at 268 (noting that deciding "when a statute operates `retroactively'
is not always a simple or mechanical task," and that "[t]hough the formu-
las have varied, similar functional conceptions of legislative `retroactiv-
ity' have found voice in this Court's decisions and elsewhere").
10
for a mandate to apply a statute in the disfavored retroactive way");
id. at 325 (reiterating Landgraf requirement of an "express command"
or "unambiguous directive" before a retroactive application will be
authorized).
To put the point differently, the word "apply" in the Court's state-
ment of its holding is, at first glance, ambiguous, for there are two dif-
ferent senses in which an arguably retroactive statute might be said
to "apply" to a case. First, a court must determine, through its normal
rules of statutory construction, whether (in the first sense) the statute
"applies" to the category of cases to which the case before it belongs.
If the court concludes that the statute does not, as was the case in
Lindh, the analysis ends. If, however, the court determines under nor-
mal rules of statutory construction that the statute does indeed "apply"
to that class of cases -- that is to say, the possibility of its application
has not been removed by Congress -- the court must then proceed to
the Landgraf analysis before it may actually "apply" the law (in the
second sense) to the case before it. Lindh did not purport to eliminate
the necessity of the Landgraf step; the Court in Lindh simply had no
need to reach that step. Thus, when the Court held that the AEDPA
"applies" to cases filed after the Act's effective date, it did so only in
the first sense of "apply" -- what normal rules of interpretation tell
us about an Act's reach -- and not in the second sense -- whether,
after one conducts a Landgraf analysis, the Act will, ultimately,
"apply" either because of the absence of impermissible retroactive
effect or because of a clearly stated congressional intent to override
one.
Further, we do not read Lindh to suggest that the Court, by resort-
ing to negative implication in order to remove an entire class of poten-
tially troublesome cases from a statute's reach, had also found the
express command that Landgraf requires for a statute to apply to a
different class of cases with respect to which its application might yet
have retroactive effect. See In re Minarik, 166 F.3d at 598 ("Landgraf
and Lindh make clear . . . that while such an inference is sufficient
to eliminate the possibility of a retroactivity problem, it is not the kind
of unambiguous statement that will justify overriding the judicial pre-
sumption against retroactivity in a case where a retroactivity problem
exists."). But see Graham v. Johnson , 168 F.3d 762, 781 (5th Cir.
1999) (reading Lindh to recognize implicit congressional intent as sat-
11
isfying Landgraf clear statement requirement). Quite to the contrary,
the Lindh majority was not even prepared to state that the explicit
extension (in section 107(c)) of chapter 154 to pending cases would
prove sufficiently unambiguous to override the judicial presumption
against retroactivity. Lindh, 521 U.S. at 328-29 (noting that "the terms
of § 107(c) may not amount to the clear statement required for a man-
date to apply a statute in the disfavored retroactive way" and that even
with respect to chapter 154 there "may well be difficult issues . . . that
application of Landgraf's default rule will be necessary to settle").
Accordingly, like our sister circuits in Minarik and Hanserd, we
conclude that the Court in Lindh did not foreclose the possibility that
in certain cases filed after enactment, certain of the new provisions,
because of an impermissible retroactive effect, still could not, consis-
tent with the Court's retroactivity precedents, be applied. Petitioner
claims that his is such a case and section 2254 is such a provision. We
disagree.
(2)
In applying the Landgraf analysis to petitioner's claim, we are
mindful that
[a] statute does not operate "retrospectively" merely because
it is applied in a case arising from conduct antedating the
statute's enactment, or upsets expectations based in prior
law. Rather, the court must ask whether the new provision
attaches new legal consequences to events completed before
its enactment.
Landgraf, 511 U.S. at 269-70. In conducting this inquiry into whether
the amendments to section 2254 attach any "new legal consequences,"
we apply "familiar considerations of fair notice, reasonable reliance,
and settled expectations." Id. Thus, the teaching of Landgraf is that
courts should not apply a new law, absent an express command from
Congress, where to do so would attach new legal consequences such
that the party affected might have acted differently had he known that
his conduct would be subject to the new law.6 Mueller has failed to
establish that the new section 2254 has any such disfavored effect.
_________________________________________________________________
6 There has been some disagreement among the courts of appeals over
the character of reliance Landgraf contemplates. While several courts of
12
Petitioner does not argue that his conduct on the night of the mur-
der was in any way affected by his understanding of or reliance on
the scope of the federal habeas remedy as it existed at that time.
Instead, petitioner bases his claim of impermissible retroactivity on
two arguments that he relied to his detriment on the rules governing
pre-AEDPA federal habeas review in formulating his litigation strat-
egy in the state courts, and one that the state courts similarly relied
to his detriment on the prospect of de novo federal habeas review of
their federal constitutional judgments. These three arguments are
equally without merit.
First, petitioner contends that section 2254(d) has an impermissible
retroactive effect because, under the pre-AEDPA regime, he had the
obligation only to exhaust his state court remedies in order to be guar-
anteed independent and de novo review of his federal constitutional
claims by the federal habeas court. Consequently, Mueller argues, he
lacked any incentive to pursue in state court the merits adjudication
of his legal claims which he argues is a prerequisite to review under
the new section 2254(d).7 The gravamen of Mueller's argument, as
_________________________________________________________________
appeals have interpreted Landgraf to require a showing of actual detri-
mental reliance to establish retroactivity, see, e.g., Graham v. Johnson,
168 F.3d 762, 783-86; Alexander v. United States, 121 F.3d 312, 313
(7th Cir. 1997), at least one has held that the party claiming an impermis-
sible retroactive effect must go further and demonstrate that his detri-
mental reliance was objectively reasonable, Pratt v. United States, 129
F.3d 54, 59 (1st Cir. 1997), while another would require a litigant only
to show that he might have so relied. Hanserd, 123 F.3d at 931. Although
Mueller himself alleges, albeit obliquely, actual detrimental reliance, we
need not reach the question of the proper standard today because we do
not believe Mueller can establish retroactivity under any of these under-
standings.
7 28 U.S.C. § 2254(d) reads as follows:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim --
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
13
best we can discern from its rather elliptical presentation, is that he
would have tried harder to secure an adjudication of all his non-
defaulted claims had he known that the AEDPA would govern his
federal petition.
This argument is meritless, and obviously so. In the first place, we
find the notion absurd that, prior to the AEDPA, state court defen-
dants and state habeas petitioners had "no incentive" to pursue adjudi-
cation on the merits of their federal constitutional claims. Especially
since the state court legal determinations were subject, as petitioner
argues, in many cases to de novo federal habeas review, there simply
was no downside for defendants like Mueller to receiving an adjudi-
cation on the merits in state court.8 Petitioner would have us accept
the curious premise that prisoners pre-AEDPA willingly forewent
their first free bite at the apple, and for no apparent gain -- except,
we suppose, in order better to savor their final bite in federal court.9
_________________________________________________________________
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreason-
able determination of the facts in light of the evidence pre-
sented in the State court proceeding.
8 Petitioner argues that in fact he could have expected de novo federal
review of all claims fairly presented in state court. What this contention
fails to acknowledge, however, is that the scope of the federal habeas
remedy of federal constitutional violations was significantly limited even
before passage of the AEDPA. See, e.g., Teague v. Lane, 489 U.S. 288
(1989) (establishing the "new rule" doctrine); Stone v. Powell, 428 U.S.
465 (1976) (declining to review Fourth Amendment claims on federal
habeas review).
9 To the extent that a defendant might ever be inclined to "sandbag" his
own claim in state court in the way petitioner seems to envision -- that
is, present the claim so as to preserve it but at the same time maneuver
(precisely how it is unclear) to avoid the possibility of an adjudication
on the merits -- he would seem to have more incentive to do so under
the AEDPA than before. Under the AEDPA, the fact of a state court
adjudication on the merits of a federal constitutional claim will subject
the federal habeas petitioner to the new section 2254(d)'s restrictions on
the right to habeas relief as explicated in Green v. French, 143 F.3d at
869-74. Conversely, a claim that was not adjudicated on the merits, even
14
In any event, petitioner's claim of retroactivity fails because, what-
ever he perceives to have been the change in "incentives," there is no
conceivable way that his litigation strategy in the state court could
actually have been affected by his alleged reliance on these incen-
tives. As petitioner recognizes, prior to the adoption of the AEDPA,
as now, the federal courts were barred from reviewing claims before
state remedies were exhausted, or if the claims were procedurally
defaulted at the state level (absent cause and prejudice or a fundamen-
tal miscarriage of justice that would excuse the default). Harris v.
Reed, 489 U.S. 255, 262 (1989). Therefore, in order to preserve a
claim for federal review, petitioner had to present it in state court.
And once a claim is presented for consideration, it is in the hands of
the court, not the prisoner, whether that claim is ultimately adjudi-
cated on the merits. Thus, whatever the incentives before or after pas-
sage of the AEDPA, petitioner simply cannot show how he would
have proceeded differently with respect to his state court litigation
efforts, and as a result has failed in this regard to demonstrate any
retroactive effect. See Drinkard v. Johnson, 97 F.3d 751, 766 (5th
Cir. 1996) ("[Petitioner] cannot argue credibly that he would have
_________________________________________________________________
in a summary fashion, and which is not procedurally defaulted, would
seem to fall outside the new section 2254(d) and its limitations on the
scope of the habeas remedy. See Weeks v. Angelone, 1999 WL 288504,
at *5 (4th Cir. May 10, 1999) ("When a petitioner has properly presented
a claim to the state court but the state court has not adjudicated the claim
on the merits, however, our review of questions of law and mixed ques-
tions of law and fact is de novo."); Jones v. Jones, 163 F.3d 285, 299-300
(5th Cir. 1998) (applying pre-AEDPA de novo standard of review to
claims of ineffective assistance of counsel that were properly raised, but
not adjudicated on the merits in state court). As a result, if the goal is,
as petitioner suggests, for a state habeas petitioner simply to maximize
the number of federal constitutional claims subject to de novo federal
habeas review, his incentive post-AEDPA would actually be to avoid,
rather than assure, state court adjudication on the merits of his federal
constitutional claims. Thus if, as petitioner also suggests (although
importantly he does not present a single concrete example), he did not
actively pursue an adjudication on the merits of his legal claims in state
court, the changes to section 2254(d) might actually have redounded to
his benefit, and his claim of impermissible retroactivity would even more
surely fail.
15
proceeded any differently during his state post-conviction proceed-
ings had he known at the time of those proceedings that the federal
courts would not review claims adjudicated on the merits in the state
court proceedings de novo.").
Second, petitioner argues -- states, really -- that prior to the
AEDPA, he was not required to have exhausted all of his claims on
certiorari to the Supreme Court on direct appeal, with the implication
being that he omitted some claims from his petition for a writ of cer-
tiorari that he would have included had he foreseen the tougher
habeas standard by which those claims would ultimately be measured.
But petitioner cannot show any harm from this change in the scope
of his federal habeas remedy because he has not specified even a sin-
gle claim that he omitted, in reliance on a de novo habeas review,
from his petition for a writ of certiorari, which was denied in full by
the Supreme Court. In fact, petitioner does not even explicitly assert
that he did so with respect to any claim. We will require more in the
way of legal or factual support for a claim of actual detrimental reli-
ance than mere suggestion or innuendo. See, e.g., Pratt, 129 F.3d at
58. And, indeed, we find even the suggestion that petitioner might
have withheld legitimate claims from his petition for certiorari so that
they would be considered by a federal court for the first time on
habeas review illogical and thus unpersuasive. Petitioner had no par-
ticular incentive pre-AEDPA to reserve his claims-- especially those
with any merit -- for habeas review. In fact, just the opposite was
true. Even at the time Mueller filed his petition for certiorari, the
Supreme Court on direct review had greater authority to correct con-
stitutional errors than a lower federal court sitting in habeas review.
See supra n.8. Thus, the incentive for defendants like Mueller has not
changed -- then, as now, the incentive was to petition the Supreme
Court for certiorari on all colorable claims.
Finally, petitioner argues that the state courts that considered his
claims prior to passage of the AEDPA lacked incentive to review dili-
gently his federal claims because the courts were not aware at the
time of decision of the increased deference to their legal conclusions
the new 2254(d) would ultimately mandate. Like the Seventh Circuit
in Lindh, we are unwilling, particularly in the absence of any factual
support for the proposition, to assume that state courts, comforted by
the prospect of independent and de novo federal review, were less
16
than attentive pre-AEDPA to any defendant's federal constitutional
claims. Lindh, 96 F.3d at 864. See also Stone, 428 U.S. at 494 n.35
("We are unwilling to assume that there now exists a genuine lack of
appropriate sensitivity to constitutional rights in the trial and appellate
courts of the several States."). In fact, it seems at least as likely that
state courts, discomfited by the certain prospect of plenary federal
review, and no doubt possessed of the familiar judicial aversion to
"reversal" -- especially by a court with respect to which they are in
no way inferior -- would have been, if possible, more rather than less
attentive to petitioner's federal constitutional claims. We thus con-
clude that petitioner has not identified any new legal consequences
that, had he known of them in advance, might have in any way
affected his conduct before filing his federal habeas petition, and that
he has identified no retroactive effect, impermissible or otherwise,
under Landgraf.
Accordingly, we conclude that the district court did not err in
reviewing Mueller's habeas petition under the 1996 Act.
B.
Next, petitioner asserts that § 2254(d) is unconstitutional because
by prohibiting federal courts from "taking any action whatsoever to
correct or remedy" a "clear violation of the Constitution," Br. of
Appellant at 7, it prevents them from exercising the "judicial power"
to enforce the Supremacy Clause of the Constitution. U.S. Const. art.
VI, ¶ 2. Because this claim is nothing more than an awkwardly recon-
figured version of constitutional objections already rejected by both
us and the Supreme Court, we may summarily dispose of it.
As the Magistrate Judge correctly explained, the Supremacy
Clause, which establishes the Constitution as "the supreme Law of the
Land" and commands state court obeisance to it, is simply inapposite
to petitioner's essential objection that § 2254(d) impermissibly limits
the scope of federal habeas review. The Supremacy Clause, as the
Magistrate noted, "is concerned about a conflict between state and
federal law, not between state and federal judges." J.A. at 225.
Indeed, to say, as the Clause does, that federal law shall be "Supreme
. . . any Thing in the Constitution or Laws of any State to the Contrary
17
notwithstanding," is to say nothing at all about the respective roles of
the state and federal courts.
Petitioner's real argument, of course, sounds not in the Supremacy
Clause, but in the Suspension Clause, U.S. Const., Art. II, § 9 ("The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require
it."), and Article III itself. At its essence, petitioner's contention is
that the AEDPA unconstitutionally strips the federal courts of some
component of the "judicial power" vested in them by Article III. Peti-
tioner dresses this claim up in the ill-fitting garb of the Supremacy
Clause only because his actual Article III and Suspension Clause
arguments have been squarely foreclosed by our decision in Green v.
French that section 2254(d) did not unconstitutionally restrict the
scope of federal habeas review, but rather "only place[d] an additional
restriction upon the scope of the habeas remedy in certain circum-
stances," Green, 143 F.3d at 874, and by the Supreme Court's deci-
sion in Felker v. Turpin, 116 S. Ct. 2333 (1996), that the AEDPA's
elimination of a federal petitioner's right to appeal or seek certiorari
review of a court of appeals denial of authorization to file second or
successive habeas petition did not constitute a violation of the Sus-
pension Clause. Thus, because petitioner's Supremacy Clause gloss
adds nothing to the claims of unconstitutionality already rejected by
this court and the Supreme Court, we reiterate our holding in Green
that § 2254(d) did not work an unconstitutional limitation upon the
jurisdiction of federal habeas courts, but rather "represent[ed] a mod-
est congressional alteration of the standards pursuant to which the
writ issues." Green, 143 F.3d at 875. 10
_________________________________________________________________
10 Petitioner raises several other general objections to the district
court's application of the AEDPA to his numerous claims. We find them
all to be without merit, and mention two briefly here. First, Mueller
argues that the district court did not apply section 2254(d) in the manner
prescribed by this court in Green. We need not consider whether the dis-
trict court erred in its specific application of the new section 2254(d)
because our own independent review of petitioner's claims confirms that
the state courts did not decide any question "by interpreting or applying
the relevant precedent in a manner that reasonable jurists would all agree
is unreasonable," Green, 143 F.3d at 870.
Second, we reject petitioner's contention that the district court was not
authorized to apply the new section 2254(d)'s deferential standard of
18
III.
Turning now to the merits of petitioner's claims for habeas relief,
we consider first his contention that his February 12, 1991, confession
was obtained in violation of his rights against self-incrimination and
to counsel. Although petitioner does not dispute that he was advised
of and explicitly waived his Miranda rights at the outset of his inter-
rogation, he contends that subsequent exchanges with police required
them to cease their interrogation and, when they did not, rendered his
initial waiver ineffective. He is wrong on both counts.
Petitioner's principal Miranda claim centers around the following
exchange, midway through his more than four-hour interrogation,
with Detective Garber. Just over 2 hours into the February 12 interro-
gation, a visibly exacerbated FBI Special Agent Palfi, in his role as
"bad cop," left Mueller alone in the room with "good cop" Garber.
Shortly thereafter, Mueller looked at Garber and asked "Do you think
_________________________________________________________________
review to claims that had simply been "decided" in summary fashion by
the Virginia Supreme Court on habeas review, rather than "adjudicated
on the merits." As we recently held in Thomas v. Taylor, 1999 WL
140596 (4th Cir., Mar. 16, 1999), "the phrase`adjudication on the mer-
its' in section 2254(d) excludes only claims that were not raised in state
court, and not claims that were decided in state court, albeit in a sum-
mary fashion." Id. at *8 (citing Wright v. Angelone, 151 F.3d 151, 156-
57 (4th Cir.), cert. denied, 119 S. Ct. 313 (1998); 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). See also Weeks v.
Angelone, 1999 WL 288504, *6 (4th Cir. May 10, 1999) ("[T]he writ
will not issue unless we determine that the Supreme Court of Virginia's
[summary] disposition of [a] claim was either contrary to federal law as
determined by the Supreme Court or an application or interpretation of
Supreme Court precedent "that reasonable jurists would all agree," Green
v. French, 143 F.3d 865, 870 (4th Cir. 1998), was not "`minimally con-
sistent with the facts and circumstances of the case,'" Wright, 151 F.3d
at 157 (quoting Hennon, 109 F.3d at 335)). In addition, the merits of
petitioner's claims regarding the inadmissibility of his confession, see
infra Part III, and the prosecution's failure to disclose exculpatory mate-
rial, see infra Part IV, were discussed at some length before being
rejected by the Virginia Supreme Court on direct appeal. See Mueller I,
422 S.E.2d at 386-87, 394.
19
I need an attorney here?" Both sides agree that the videotape of the
interview shows that Garber responded by shaking his head slightly
from side to side, moving his arms and hands in a "shrug-like man-
ner," and stating "You're just talking to us." Six minutes later, Muel-
ler began confessing to Charity's murder.
Petitioner argues first that under clearly established Supreme Court
precedent, Garber was required to cease all questioning after Mueller
asked him whether he thought that he (Mueller) needed an attorney.
We disagree. The Virginia Supreme Court properly held on direct
appeal that Mueller's question to Detective Garber did not constitute
an "unambiguous request for counsel," and thus did not implicate the
rule of Edwards v. Arizona, 451 U.S. at 477 (1981), that "custodial
interrogation must cease, when the accused, having received Miranda
warnings and having begun to respond to the questions of the authori-
ties, `has clearly asserted his right to counsel.'" Mueller I, 422 S.E.2d
at 387 (quoting Eaton v. Commonwealth, 397 S.E.2d 385, 395-96
(1990) (quoting Edwards, 451 U.S. at 485)). The Virginia Supreme
Court correctly concluded that Mueller could not prevail on a claim
that his lone query whether his interrogator thought that counsel
might be helpful constituted a clear assertion of his right to counsel.
In fact, just two years after the Virginia Supreme Court so concluded,
the United States Supreme Court in the case of United States v. Davis,
512 U.S. 452, 459 (1994), explained, in virtually the same terms, that
a suspect must "unambiguously request counsel" before officers are
required to stop questioning him.11 The Court's discussion in Davis
conclusively demonstrates that the Virginia high court not only rea-
sonably but correctly applied existing Supreme Court precedent. The
Supreme Court stated in Davis that it was "declin[ing] petitioner's
_________________________________________________________________
11 In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court
held that, consistent with the rationale of Teague, a federal habeas court
may consider intervening decisions of the Supreme Court that support
the state court's unfavorable adjudication of a prisoner's claim. The
Supreme Court's intervening decision in Davis, if applicable, squarely
forecloses petitioner's claim. Because we conclude above that the Vir-
ginia Supreme Court did not apply the relevant existing precedent in a
manner that reasonable jurists would find unreasonable, we need not
consider whether the Lockhart rule survives enactment of the AEDPA,
rendering Davis controlling authority.
20
invitation to extend Edwards and require law enforcement officers to
cease questioning immediately upon the making of an ambiguous or
equivocal reference to an attorney." Davis, 512 U.S. at 459 (emphasis
added). In declining to extend Edwards to cover such statements, the
Court thus unambiguously confirmed that it had not in Edwards
"clearly established" such a rule.
Petitioner next claims that even if his query did not require the
police to halt their interrogation, Garber's response to that query
nonetheless invalidated his initial waiver. Again, we disagree.
In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court
explained that a suspect's waiver of his Miranda rights is only valid
if it is made "voluntarily, knowingly, and intelligently." The Court
further explained that this inquiry had two distinct dimensions:
First, the relinquishment of the right must have been volun-
tary in the sense that it was the product of a free and deliber-
ate choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full aware-
ness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the "to-
tality of the circumstances surrounding the interrogation"
reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the
Miranda rights have been waived.
Id. at 421 (internal quotation and citation omitted). Mueller does not
assert that his initial waiver was invalid. Rather, petitioner's claim is
that his waiver, voluntary, knowing, and intelligent when given, was
subsequently rendered ineffective by Garber's response. Thus, Muel-
ler can only prevail by showing that under the totality of the circum-
stances, Garber's response made Mueller's continuing waiver the
product of other than a free and deliberate choice, or that after Gar-
ber's response Mueller no longer understood the nature of the right
to an attorney or the consequences of abandoning it.
We conclude that Garber's shrug, shake of the head, and non-
committal statement that "you're just talking to us," did not serve to
render Mueller's waiver involuntary, unknowing, or unintelligent. As
21
the Virginia Supreme Court noted in conducting its own "totality of
the circumstances" review: at the time of his arrest Mueller was 42
years old and had a GED; Garber advised Mueller of his rights prior
to the interrogation and Mueller stated that he understood those rights;
earlier in the investigation (on October 9), Mueller signed a Miranda
waiver form, and on two occasions thereafter exercised his right to
terminate police questioning; and several years earlier Mueller had
waived his Miranda rights on three occasions in writing before giving
a statement to the police. Mueller I, 422 S.E.2d at 386-87. On the
basis of these facts, which we presume to be correct subject to rebut-
tal by clear and convincing evidence, 28 U.S.C.§ 2254(e)(1), we can-
not conclude that reasonable jurists would have found unreasonable
the Virginia Supreme Court's determination that Garber's response
did not invalidate the earlier warning.
Petitioner's argument on appeal hinges on his assertion that the
videotape demonstrates that the Virginia Supreme Court unreasonably
concluded that Garber's response did not constitute an "unambigu-
ously negative reply" to Mueller's query. However, even if we agreed
that Garber unambiguously answered in the negative Mueller's ques-
tion "Do you think I need an attorney?", our confidence in the conclu-
sion that the waiver remained voluntary, knowing, and intelligent,
would not be shaken. It is clear from the record that Mueller, with his
extensive experience in such matters, understood both his rights and
the consequences of their abandonment. Garber's expression of his
opinion on the advisability of Mueller's consulting with counsel could
not change that understanding. Mueller confirmed as much himself
when he stated, shortly after confessing, that "I got death coming to
me. I knew it as soon as I opened my mouth." 422 S.E.2d at 386. We
note as well that whatever Garber's thoughts on the matter, he was
under no obligation to share them with Mueller in order to help him
decide how best to exercise his rights. See Burbine, 475 U.S. at 422
("No doubt the additional information would have been useful to
respondent; perhaps even it might have affected his decision to con-
fess. But we have never read the Constitution to require that the
police supply a suspect with a flow of information to help him cali-
brate his self-interest in deciding whether to speak or stand by his
rights."). Accordingly, we conclude that Mueller's waiver remained
knowing, intelligent, and voluntary even after Garber's response, and
22
that the Virginia Supreme Court's refusal to suppress the confession
was reasonable.
Finally, Mueller also claims that he repeatedly invoked his right to
remain silent during the course of his February 12, 1991, interrogation
by demanding that he be taken to jail. Br. of Appellant at 21. Mueller
did not object to the Magistrate's Judge's failure to address the merits
of this claim, and as a result has waived his right to raise the claim
on appeal. Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.3d 841, 846 (4th Cir. 1985). Petitioner's interest in pursuing
this particular element of his Miranda claim has been sporadic at best.
Although petitioner addresses his claim that the officers violated his
rights under Miranda by disregarding these statements in only the
most cursory fashion in his written submissions to this court, thereby
guaranteeing a proportionately limited response by appellee, his able
counsel made the claim the centerpiece of oral argument.
Even were we to consider this final Miranda claim on the merits,
we would find no basis for disturbing the state court's judgment. The
Virginia Supreme Court considered this claim on direct appeal and
concluded that Mueller's repeated demands were "simply impatient
gestures and that they did not constitute an invocation of his right to
terminate the interrogation." 422 S.E.2d at 387. Petitioner does not
dispute the Virginia Supreme Court's recitation of these facts sur-
rounding his statements evidencing a desire to be taken to jail: Muel-
ler continued to talk to the investigators after each such statement;
when asked whether he would rather talk to other officers Mueller
replied "I've been talking to you guys for four months. I've estab-
lished a pretty good relationship with you guys;" he had demonstrated
on two previous occasions with these same officers that he clearly
knew how to stop an interrogation when he so desired. Mueller, 422
S.E.2d at 386. Thus, even had petitioner not waived the right to
appeal the dismissal of this element of his Miranda claim, we would
conclude that the state court's determination that Mueller had not
attempted to terminate the interrogation or invoke his right to remain
silent was not, on these facts, unreasonable. 28 U.S.C. § 2254(d)(2).12
_________________________________________________________________
12 Mueller also argues that his appeal should be "suspended without
prejudice" while we remand to the district court with orders for that court
23
IV.
Petitioner next contends that the Virginia Supreme Court's denial
of his claim that his rights under Brady v. Maryland, 373 U.S. 83
(1963), were violated when the prosecution failed to disclose certain
exculpatory evidence involved an unreasonable application of the law
of that decision to the facts of his case.13 Under Brady and its prog-
eny, the prosecution's failure to disclose exculpatory evidence -- that
is, evidence that is "favorable to an accused" -- violates a defendant's
right to due process "only where there exists a`reasonable probabil-
ity' that had the evidence been disclosed the result of the trial would
have been different," which is to say only where the suppression "un-
dermine[s] confidence in the outcome of the trial." United States v.
Bagley, 473 U.S. 667, 681 (1985). Because we disagree with peti-
tioner that the Virginia Supreme Court's disposition of his Brady
claim involves an application of clearly established Supreme Court
precedent that reasonable jurists would agree is unreasonable, we con-
clude that he is not entitled to habeas relief under section 2254(d).
Mueller argues that the Commonwealth violated his right to due
process under the Brady line of cases by failing to inform him before
_________________________________________________________________
to secure and, presumably, view the videotape of his confession. Peti-
tioner claims that he was denied the review to which he was entitled
when the Commonwealth neglected to have the videotape transferred
from the state court despite its representation to the district court that it
would do so. However, because the district court's resolution of petition-
er's claims did not require, as ours does not, review of the tape, and
because the district court did not purport in any way to have relied on it,
we deny this request.
13 Mueller also argues on appeal that because the prosecution's actions
amounted to "the functional equivalent of the presentation of false testi-
mony," they were reviewable under the less stringent standard applicable
to claims that the prosecution knowingly introduced perjured testimony.
See Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360
U.S. 264 (1959). Because Mueller did not advance this Giglio claim in
state court, it is procedurally defaulted, see, e.g., Gray v. Netherland, 99
F.3d 158 (4th Cir. 1996), and because Mueller has demonstrated neither
cause and prejudice nor a fundamental miscarriage of justice that would
excuse the default, we will confine our review to his Brady claim.
24
trial that Kevin Speeks, the prosecution witness who testified to see-
ing a man driving a wood-sided station wagon through the parking lot
near Charity Powers on the night of her disappearance, and several of
his friends, had been shown a photographic lineup by police in the
days following the murder. After Speeks testified at trial that he had
seen a man standing near Charity in the Hardee's parking lot on the
night of her disappearance, he stated on cross-examination that the
police had shown him photographs of seven individuals, and he had
picked out the one most resembling the man he had seen in the
Hardee's parking lot. According to his testimony, the police did not
say anything to Speeks about the lineup before or after. The defense
moved for a mistrial because they had never been told by the prosecu-
tors that this photographic lineup had even taken place, let alone its
results. The prosecutors asserted that this was the first that they had
heard about the matter as well, and the court directed them to look
into it further. At a subsequent hearing on the mistrial motion, the
prosecutors informed the trial court that they had been unable to con-
firm which officers had shown Speeks the photographs, or whose pic-
tures were included in the lineup. The trial court denied Mueller's
motion for a mistrial. When the Commonwealth recalled Speeks, he
simply testified that he and several other individuals had been shown
pictures, and that he had told the police that one photograph resem-
bled the person he had seen but that he "couldn't be positive it was
the guy." J.A. at 848.
The Virginia Supreme Court rejected Mueller's Brady claim on the
merits on direct appeal. Mueller I, 422 S.E.2d at 394. Noting that
Speeks had only selected the photograph of the man most resembling
the individual he saw in the parking lot, and that the court had no evi-
dence before it that Speeks was even shown a photograph of Mueller
or of "any specifically identified individual," the Virginia Supreme
Court concluded that the information was not exculpatory and thus
that no Brady violation had occurred. Id .
Although we would likely agree with petitioner that the undis-
closed evidence is marginally exculpatory, we cannot say that the Vir-
ginia Supreme Court's conclusion to the contrary is one that
reasonable jurists would find unreasonable.14 Even more significant,
_________________________________________________________________
14 Although Speeks was not presented as an identification witness, and
none of the other three friends testified at all, he did testify that he had
25
however, is petitioner's inability to demonstrate a reasonable proba-
bility of a different result at trial had the prosecution disclosed the
assertedly exculpatory information.
First, and most obviously, the Commonwealth's failure to disclose
this information was not material in this way because the evidence
was revealed during the trial. See United States v. Agurs, 427 U.S. 97,
102 (1976) ("Brady . . . involves the discovery, after trial of informa-
tion which had been known to the prosecution but unknown to the
defense.") (emphasis added). Thus, the defense had ample opportunity
to use Speeks' possible failure to identify Mueller to his advantage --
and it did so in its summation. See J.A. at 961. Second, the prosecu-
tion relied on Speeks' testimony only for the limited purpose of cor-
roborating Mueller's own recollection of his whereabouts and actions
on the night of the murder. Even as late as the time of his state habeas
petition, Mueller admitted that he was at Hardee's the night of the
murder, and that he saw Charity Powers there. J.A. at 1146, 1156
(affidavit of Everett Lee Mueller). Thus, whether Speeks and his
friends could identify Mueller as the man they saw at Hardee's was,
for all practical purposes, irrelevant.
Finally, Everett Lee Mueller confessed, on videotape, to having sex
with and murdering Charity Powers. Mueller then led the police,
again on videotape, to the wooded area where he had burned Chari-
ty's clothing and personal effects. The police testified that without his
_________________________________________________________________
seen a man fitting Mueller' general description, and driving a car like his,
in Charity's vicinity on the night she disappeared. Evidence that Speeks
had participated in a lineup and selected someone as most resembling the
man he saw in the parking lot, combined with the fact that the govern-
ment failed to produce or introduce the results of that lineup is, it seems
to us, at the very least favorable to Mueller. This evidence could tend to
suggest either that Speeks had not identified Mueller from a lineup in
which Mueller's photograph appeared, or that Speeks failed to identify
the individual most resembling Mueller from a lineup in which Mueller's
photograph did not appear or identified an individual not resembling
Mueller at all. However, the favorable nature of such speculative and
indeterminate evidence is not obvious, and we would not go so far as to
conclude that the Virginia Supreme Court's unwillingness to characterize
it as such was unreasonable.
26
help, they "would never have found" these items because the area was
a "dumping ground." J.A. at 834. Mueller pointed out where he had
lost his knife -- the same area in which police had found one. And
he pointed out the spot where he had intercourse with the ten-year old
Charity -- it was fifteen feet from where the knife had been found.
J.A. at 836. The introduction by the defense of evidence that Speeks
and others had picked someone out of a photographic lineup as most
resembling the man they had seen at Hardee's could not, in fact did
not, in any way undermine the overwhelming effect on the jury of
Mueller's detailed confession to the heinous crime and the corrobora-
tion provided by his leading of the police to the location and further
evidence of its commission. Indeed, we are confident that there was
no probability, let alone the reasonable one that Brady requires, of a
different outcome had the prosecutor turned over this information in
advance of trial. Accordingly, we dismiss petitioner's contention that
the district court erred in not granting his application for habeas relief
under section 2254(d) on his Brady claim.
V.
Petitioner's final substantive claim is that he was denied effective
assistance of counsel at trial. He argues that his trial counsel were
constitutionally ineffective by not investigating or presenting evi-
dence about his susceptibility to giving a false confession, not investi-
gating or presenting evidence of the possibility that someone other
than him committed the crime, and by conceding his guilt on the ele-
ments of the capital offense while failing to offer the jury a first-
degree murder alternative that it could legitimately choose consistent
with those concessions. Petitioner's first two claims were denied on
the merits by the Virginia Supreme Court on habeas appeal, and we
agree with the district court that their rejection did not rest on an
application of the two-prong standard for ineffective assistance estab-
lished in Strickland v. Washington, 466 U.S. 668 (1984), that reason-
able jurists would find unreasonable. The last two claims were
procedurally defaulted on state habeas appeal, and because petitioner
can demonstrate neither cause and prejudice nor a fundamental mis-
carriage of justice, are barred from our consideration on federal
habeas review.
In order to establish a claim of constitutionally ineffective assis-
tance of counsel, petitioner must demonstrate both that his counsel's
27
performance fell below an objective standard of reasonableness and
that counsel's deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). In evaluating trial coun-
sel's performance, we "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assis-
tance." Id. at 689. With respect to the prejudice prong, it is satisfied
only if petitioner can demonstrate a "reasonable probability that, but
for counsel's unprofessional errors, the result of the proceedings
would have been different." Id. at 694. Even then, however, we may
only grant habeas relief under Strickland if the "result of the proceed-
ing was fundamentally unfair or unreliable." Lockhart v. Fretwell,
506 U.S. 364, 369 (1993); Sexton v. French, 163 F.3d 874, 882
(1998).
A.
Petitioner's first ineffective assistance claim, that his trial counsel
were deficient in failing to investigate and present evidence of his
susceptibility to giving a false confession, falls well short of satisfy-
ing Strickland's performance prong. Mueller argues that his attorneys
were deficient in not pursuing and presenting "evidence" of the com-
bustible combination of his particular psychological vulnerability --
due primarily to his history of drug and alcohol abuse -- and the
coercive nature of the police harassment and interrogation to which
he was subjected. As the Supreme Court recognized in announcing
the Strickland standard, however, the objective reasonableness of an
attorney's actions in representing his client
may be determined or substantially influenced by the defen-
dant's own statements or actions. In particular, what investi-
gation decisions are reasonable depends critically on such
information.
Id. at 691. One of Mueller's two trial counsel submitted an affidavit
-- which was included in the Commonwealth's motion to dismiss
upon which the state habeas court relied in rejecting Mueller's
Strickland claim -- averring that Mueller had, until shortly before
trial, consistently admitted his guilt to his attorneys and maintained
to them that his confession was truthful. J.A. at 1499-1500.15 We can-
_________________________________________________________________
15 Petitioner relies on a recent unpublished per curiam opinion of this
court for the proposition that "a district court may not credit an attorney's
28
not say, then, that it was objectively unreasonable for counsel to opt
not to expend investigative energies and resources on their client's
susceptibility to false confession where the client had assured them
that his confession was true. See Strickland, 466 U.S. at 691 ("[W]hen
a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's failure to
pursue those investigations may not later be challenged as unreason-
able."); 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 investiga-
tion."). Just as obviously, counsel could not reasonably base his trial
strategy on evidence of defendant's susceptibility to false confessions
when the defendant himself had admitted the truthfulness of his con-
fession and his sole responsibility for the crime.
Even if we were persuaded that Mueller's trial counsel might have
profitably pursued such "leads," petitioner has not satisfied his burden
of demonstrating that their failure to do so fell outside the wide range
of reasonable professional assistance. In fact, petitioner has not cited
a single case in which trial counsel, charged with representing a
defendant who had confessed to the crime not only on videotape but
_________________________________________________________________
affidavit over a petitioner's verified papers without conducting an evi-
dentiary hearing." United States v. Crawford, 161 F.3d 4, 1998 WL
610870 (4th Cir., Sept. 3, 1998). Of course, unpublished opinions are not
binding in this circuit. See Local Rule 36(c); Hogan v. Carter, 85 F.3d
1113, 1118 (4th Cir. 1996). More importantly, Crawford is readily distin-
guishable from this case. Crawford involved a petitioner who claimed
ineffective assistance for failure to comply with his request to file an
appeal. Such a claim pits only the word of the attorney against that of the
client. In this case, the state habeas court also had before it substantial
evidence pointing to the truth of the confession: Mueller led police to the
place where he had burned Charity's clothing and jewelry, to where he
had lost the knife, and to where he had sex with the victim. Thus, unlike
in Crawford, there was a substantial independent basis for crediting the
attorney's affidavit over his client's self-serving statement on habeas that
he had steadfastly -- since his confession, that is -- maintained his inno-
cence. See Drew v. Collins, 964 F.2d 411, 422 n.12 (5th Cir. 1992)
(holding that state habeas court could evaluate ineffective assistance of
counsel claim based on affidavits of petitioner and attorney).
29
to counsel themselves, nonetheless pursued a "false confession" line
of defense. Trial counsel in this case did what reasonable attorneys
are wont to do when their client has confessed on videotape to the
grisly details of a heinous crime -- they moved to suppress. We
decline to hold that trial counsel were under any constitutional obliga-
tion, when that motion was unsuccessful, to attack as false a confes-
sion their own client had acknowledged was true.
In any event, even were we to find that counsel's performance fell
below an objective standard of reasonableness, we can identify no
prejudice under Strickland from their failure to investigate and pursue
this "lead." In our view, evidence of Mueller's alleged susceptibility
to false confession would have been very unlikely to lessen the
impact of the defendant's own confession and his ability, after thus
unburdening himself, to lead the police to the very area where Chari-
ty's body was found.
B.
Petitioner's contention that trial counsel were constitutionally inef-
fective by failing to pursue "substantial evidence" that someone else
may have abducted and murdered Charity Powers similarly fails to
satisfy Strickland's first prong. The evidence Mueller now character-
izes as substantial was in truth anything but. Mueller argues that trial
counsel unreasonably failed to investigate and develop the following
three leads. First, he argues that trial counsel should have attempted
to identify the source of a single unidentified hair sample recovered
by forensic personnel from Charity Powers' anal area, perhaps by
compelling comparison of that sample with the hairs of unnamed sus-
pects initially considered but subsequently eliminated by the police.
Second, petitioner argues that counsel should have subpoenaed, or at
least spoken to, the individuals who in addition to Kevin Speeks had
been shown a photographic lineup in the days following the murder.
Finally, petitioner argues that counsel should have conducted further
investigation after learning from Ms. Deborah Pruitt, a neighbor of
Mueller's, of two vehicles similar to his in the area on the night of
the murder.
In determining whether counsel's performance in failing further to
investigate these "leads" was constitutionally deficient, we recall
30
Strickland's admonition that "when a defendant has given counsel
reason to believe that pursuing certain investigations would be fruit-
less or even harmful," counsel's decision not to pursue "those investi-
gations may not later be challenged as unreasonable." 466 U.S. at
691. Given Mueller's statements to counsel confirming the substance
of his confession, we cannot say that counsel were unreasonable in
deciding not to pursue further the defense that someone else commit-
ted the crime to which he had confessed. And, even were we not to
credit trial counsel's affidavit that Mueller had admitted his guilt,
Mueller has not forecast what evidence, specifically, his counsel
could reasonably have hoped to find as a result of the investigation.
First, with respect to the stray hair sample, we note that to this day,
even after having had the assistance of an investigator at the state
habeas level, petitioner has not suggested the identity of any other
suspect to whom the hair might have belonged. Thus, counsel had no
potential match for the lone stray hair, and we cannot say that it was
unreasonable for him not to search high and low for its source. Rather
than expend investigative energies and resources trying to match the
hair to someone in Chesterfield, counsel opted instead simply to pre-
sent at trial the evidence of an unidentified hair on the victim's body.
J.A. at 961.
As for counsel's performance in pursuing the evidence of the pho-
tographic lineup and following up on the interview with Ms. Pruitt,
there simply was no reason for them to expend resources doing either.
Even crediting petitioner's affidavit, trial counsel knew that their cli-
ent had been at the Hardee's, and had seen Charity Powers in the
parking lot, on the night of the murder. J.A. at 1146, 1156. Trial coun-
sel also knew that there simply was no evidence, even today, that
Speeks' friends could have identified any other suspect in this case.
Thus, the best counsel could have reasonably hoped for was that they,
like Speeks, could testify that they had picked someone out of a
lineup, so that counsel might ask the jury to draw the inference from
the prosecution's failure to introduce this evidence that they had not
identified Mueller. This information -- which in any event counsel
had imparted to the jury through his cross of Speeks and through his
summation -- was of no use at all, as Mueller, by his own admission,
was at Hardee's on the night of the murder. Counsel's first response
to the disclosure of this information had been to move and then ably
31
argue for a mistrial under Brady. It is clear, then, that once trial coun-
sel learned of the photographic lineup they reasonably used it to their
client's advantage in a manner consistent with the knowledge that he
had, by his own admission, been at Hardee's on the night of the mur-
der.
Similarly, with regard to Ms. Pruitt, we note as an initial matter
that trial counsel did interview her. But in light of the information
available to counsel that Mueller was at Hardee's, presumably in his
vehicle, on the night of the murder, we cannot say that it was objec-
tively unreasonable for counsel not to track down two individuals sus-
pected of nothing more than owning a tan, wood-paneled station
wagon.
In sum, we decline to find that it was unreasonable for counsel to
fail to investigate whether someone else was responsible for Charity's
rape and murder when their own client had confessed responsibility,
not only to the police but to the attorneys themselves. And, even if
it were, given the evidence of petitioner's guilt in this case, recited in
detail in the previous section, our confidence in the outcome of the
trial is not at all disturbed by counsel's asserted investigative failings.
Accordingly, because the Virginia Supreme Court's resolution of
petitioner's first two ineffective assistance claims was not only rea-
sonable under Strickland but undoubtedly correct, we agree with the
district court that he is not entitled on the basis of these claims to
habeas relief under section 2254(d).
C.
We turn finally to Mueller's claims that trial counsel were constitu-
tionally ineffective in conceding during closing argument that Mueller
killed Powers subsequent to raping her (which elements together with
the third element of "premeditation" constitute the offense of capital
murder) and, relatedly, in failing to request a viable first-degree mur-
der instruction in light of those concessions. Petitioner included these
claims, along with fifty-three others, in two footnotes appearing on
the final two pages of his petition for appeal to the Virginia Supreme
Court. Noting simply that he could not "present appropriate argu-
ment" on these claims "because of the page limit imposed in this peti-
tion," petitioner purported in these two footnotes to "incorporat[e] by
32
reference" arguments made in his 217-page petition for Writ of
Habeas Corpus in the trial court. The Virginia Supreme Court on
habeas appeal dismissed all fifty-five footnoted claims, and only those
claims, as defaulted under its Supreme Court Rule 5:17(c), which pro-
vides, in pertinent part, as follows:
[T]he petition shall list the specific errors in the rulings
below upon which the appellant intends to rely. . . . An
assignment of error which merely states that the judgment
or award is contrary to the law and the evidence is not suffi-
cient. . . .
The petition shall also contain:
...
(4) The principles of law, the argument, and the authorities
relating to each assignment of error. With respect to each
assignment of error, the principles, the argument, and the
authorities shall be stated in one place and not scattered
throughout the petition . . . .
Finding that Rule 5:17(c) constituted an "independent and adequate
state grounds" for dismissal, and finding neither cause and prejudice
nor a fundamental injustice that would excuse the default, the district
court in turn held that it was barred from reviewing any of the claims
procedurally defaulted under Rule 5:17(c). Although we do question
state habeas counsel's judgment in briefing some twenty-two other
claims in full, while relegating these two, along with fifty-three oth-
ers, to a pair of footnotes at the very end of an already overlength
petition, we agree with the district court's judgment that we are, as
a result of that strategic decision, barred from reviewing these claims.
As the district court noted, the Virginia Supreme Court's conclu-
sion that these claims were defaulted bars them from our consider-
ation, absent cause and prejudice or a miscarriage of justice, so long
as Rule 5:17(c) is an independent and adequate state grounds for deci-
sion. See, e.g., Harris v.Reed, 489 U.S. 255, 262 (1989); Yeatts v.
Angelone, 166 F.3d 255, 260 (1998). In Yeatts, we recently reiterated
33
the familiar standard that a state procedural rule is "adequate" if it is
firmly established and regularly or consistently applied by the state
court and independent if it does not depend on a federal constitutional
ruling. Id. at 263-64. Mueller argues on a number of grounds that the
state court's dismissal of these claims is inadequate to bar federal
review. These arguments are all without merit, and we consider them
in turn.
First, petitioner contends that we are not barred from reviewing
these Strickland claims because the state court failed to make a suffi-
ciently explicit statement of the state law ground for dismissing them.
Petitioner's argument relies on a misapprehension of the Supreme
Court's holding in Harris v. Reed, 489 U.S. 255 (1989). In that case,
the Court held that federal review would not be barred absent a "clear
statement" that the state court in rendering its judgment relied on a
state law procedural ground, as opposed to an application of federal
law, for its dismissal of a federal claim. Id . at 263. Here, unlike in
Harris, there simply is no question that the state court rested its judg-
ment on state procedural grounds rather than on the merits of the
claims. In limiting its award of an appeal to a single assignment of
error, the Virginia Supreme Court stated, in reference to the fifty-five
footnoted claims, that it was of the opinion that "Mueller has
defaulted on all these claims under Rule 5:17(c)." In contrast, with
respect to the claims that were not dismissed on some or other state
law procedural grounds, the Virginia Supreme Court clearly stated
that they were "without merit." This type of unequivocal distinction
between those claims that are dismissed on state procedural grounds
and those that are denied for lack of merit is all that Harris requires.
Next, we reject Mueller's contention that Rule 5:17(c) cannot bar
review because the thirty-five-page limit it imposed on his petition
actually prevented him from presenting his claims in compliance with
the rule.16 Mueller cites Reese v. Peters, 926 F.2d 668 (7th Cir. 1991),
in support of this claim. In Reese, the Seventh Circuit stated that
"[w]hen state law does not allow the prisoner to present a particular
_________________________________________________________________
16 Of course, petitioner's argument that the page limits prevented him
from complying with the rule serves as confirmation, if any were needed,
of his acknowledgment that he did not in fact comply with the rule in
presenting these claims.
34
claim, the omission -- submitting to limitations established by law --
is not an independent and adequate state ground precluding federal
review." Id. at 670. In Weeks v. Angelone, 1999 WL 288504 (4th Cir.
May 10, 1999), we recently considered and rejected application of
Reese to the very different circumstance of page limitations. We con-
cluded that a page limitation "merely limited the manner in which
[petitioner] could present his arguments; it did not wholly prevent him
from presenting them," as was the case in Reese. Id. at *20.
Finally, petitioner argues that Rule 5:17(c) is neither "firmly estab-
lished" nor "regularly followed" because certain of its provisions, and
specifically its page limitations, are entirely discretionary.17 However,
it is clear that the Virginia Supreme Court did not dismiss Mueller's
Strickland claims as procedurally defaulted because his petition for
appeal was too long. In fact, although the petition was twelve pages
overlength, the Virginia Supreme Court did not dismiss as procedur-
ally defaulted under Rule 5:17(c) any of the other claims raised or dis-
cussed in those excess pages. Rather, the court dismissed only the
scores of claims strung together, without support or explanation, in
the two footnotes on the final two pages. We can only reasonably
conclude, then, that the assignments of error asserted therein were
defaulted not because the petition was too long, but because they
lacked either the specificity or the support the rule explicitly and
unambiguously demands, or both. And petitioner has not even sug-
gested, let alone demonstrated, that these requirements are not firmly
established or regularly enforced.
Nonetheless, because we find the underlying claims at least trou-
bling, we have considered ourselves whether these procedural
grounds are indeed "firmly established" and "regularly enforced" so
as to bar federal review, notwithstanding petitioner's own tacit con-
cessions -- manifested in the absence of any suggestion to the con-
trary in the briefs and in able appellate counsel's failure even to
mention the claims at oral argument -- that they are.
_________________________________________________________________
17 Rule 5:17(c) establishes that
[e]xcept by leave of a justice of this Court, a petition for
appeal shall not exceed 35 typed or 25 printed pages.
35
The rules governing the "Form and Content" of petitions for appeal
to the Virginia Supreme Court have long been explicitly tied to the
rules governing the same with respect to opening briefs on appeal.
Indeed, through 1992, Rule 5:17(c), the "Form and Content" subsec-
tion of the general rule governing petitions for appeal, directly incor-
porated the requirements of Rule 5:27, which supplied the standards
for opening briefs. Va. Sup. Ct. R. 5:17(c) (1992) ("The form and
contents of the petition for appeal shall conform in all respects to the
requirements of the opening brief of appellant (Rule 5:27)."). At the
end of that year, the two rules were amended, with the primary effect
of reversing the direction of the incorporation. That is, Rule 5:17(c)
was amended to include expressly, with only superficial modifica-
tions, the very requirements theretofore enumerated in Rule 5:27. In
turn, Rule 5:27 was amended simply to incorporate the "Form and
Content" requirements now explicitly laid out in the new Rule
5:17(c). Whatever the explanation for the 1992 change, its import for
purposes of our analysis lies in what was not amended: the Virginia
Supreme Court's long-standing requirement that petitions for appeal
and opening briefs conform to the same standards of presentation.
This substantial identity between the Form and Content require-
ments of petitions for appeal and opening appellate briefs is signifi-
cant because while awards and denials of appeal are only infrequently
reported, published decisions interpreting and enforcing Rule 5:27 on
appeal are abundant. And review of those decisions leaves no room
for doubt, as petitioner obviously recognizes, that the Virginia
Supreme Court will, in applying the terms shared by the two rules,
consider as waived an assignment of error presented without support-
ing argument or authority. See Weeks v. Commonwealth, 248 Va. 460,
465 (1994) (refusing to consider on direct appeal ten assigned errors
appellant failed to brief or argue); Quesinberry v. Commonwealth,
241 Va. 364, 369 (1991) (deeming as waived issues to which appel-
lant assigned error but failed to argue on brief); Savino v.
Commonwealth, 239 Va. 534, 547 n.4 (1990) (declining to consider
claims where "[t]he principles of law, the argument, and the authori-
ties relating to" them were not included in appellant's brief); Stockton
v. Commonwealth, 241 Va. 192, 217 (1991) (refusing to consider "is-
sues raised in assignments of error [appellant] has not briefed," and
rejecting appellant's attempt to "place the blame on this Court for
refusing to grant him leave to file a brief in excess of the 50-page lim-
36
itation"). In addition, the court has explicitly stated on more than one
occasion that it will not consider the requirement satisfied by "incor-
poration by reference" of arguments made below in order to circum-
vent page limitations. Williams v. Commonwealth, 248 Va. 528, 537
(1994) (declining to consider arguments "incorporate[d] by reference"
to arguments made in proceedings before trial court (citing Mickens
v. Commonwealth, 247 Va. 395, 401 n.4 (1990), vacated on other
grounds sub nom., Mickens v. Virginia, 513 U.S. 922; Jenkins v.
Commonwealth, 244 Va. 445, 461 (1992))). Thus, even a brief review
of Virginia caselaw makes clear why petitioner chose not even to con-
tend that the Virginia Supreme Court has not consistently and regu-
larly dismissed, as defaulted, claims raised in such cursory fashion as
the fifty-five Mueller "incorporated by reference," without argument
or authority, in the final two footnotes of his petition for appeal.
Similarly, even were we to believe (which we do not) that the Vir-
ginia Supreme Court in dismissing the claims under Rule 5:17(c)
meant to rely exclusively on the rule's requirement that "the petition
shall list the specific errors in the rulings below upon which the appel-
lant intends to rely," and not upon that portion of the rule requiring
explanation and authorities, we would still have no difficulty in con-
cluding that that rule is likewise an adequate one. In Yeatts, we
rejected the argument that Rule 5:17(c), which had been "applied . . .
numerous times prior to the date [petitioner] filed his petition for
appeal to refuse to address issues that were not preserved properly
with specific assignments of error," is not "firmly established." And
in that case, where we held that "consistent or regular application of
a state rule of procedural default does not require that the state court
show an undeviating adherence to such rule admitting of no excep-
tion," so long as the rule has "as a general rule, . . . been applied in
the vast majority of cases," id. (internal quotations and citation omit-
ted), the petitioner had at least presented the court with one instance
where the state court had not applied the rule on facts similar to those
of his case. Mueller, because he does not contest the adequacy of the
rule's application on these grounds either, has not even shown that
much. For these reasons, we find, as the district court did, that Muel-
ler's procedural default under Rule 5:17(c) is an independent and ade-
quate state bar to his last two Strickland claims.18
_________________________________________________________________
18 In a single sentence in his reply brief that seems no more than an
afterthought, petitioner lists five other grounds upon which, assertedly,
37
Of course, we may nonetheless excuse petitioner's procedural
default for cause and prejudice, or if a fundamental miscarriage of
justice would result from failure to do so. Harris v. Reed, 489 U.S.
255, 262 (1989). The existence of cause for procedural default "ordi-
narily turn[s] on whether petitioner can show that some objective fac-
tor external to the defense impeded counsel's efforts to comply with
the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488
(1986). The only asserted "cause" for petitioner's procedural default
(although petitioner does not frame it as such) is the page limitation
considered above. The actual cause of default in this case is not the
page limit, however, but rather petitioner's strategic choice of which
of his manifold claims to focus on. See Weeks v. Angelone, 1999 WL
288504, at *20. (It bears repeating that petitioner sought to raise some
seventy-seven claims, fifty-five of them only by reference in the two
concluding footnotes.) The existence of a page limitation that affords
a petitioner ample opportunity to present numerous claims, forcing
only some small measure of strategic choice, is not at all problematic.
As the Supreme Court has recognized,
[t]here can hardly be any question about the importance of
having the appellate advocate examine the record with a
view to selecting the most promising issues for review. This
has assumed a greater importance in an era when oral argu-
ment is strictly limited in most courts -- often to as little as
15 minutes -- and when page limits on briefs are widely
imposed. . . . A brief that raises every colorable issue runs
the risk of burying good arguments -- those that, in the
words of the great advocate John W. Davis, "go for the jug-
ular," -- in a verbal mound made up of strong and weak
contentions.
Jones v. Barnes, 463 U.S. 745, 752-53 (1983) (citation omitted). Peti-
_________________________________________________________________
"[a]pplication of state Va. S. Ct. R. 5:17 also fails." Reply Br. of
Petitioner-Appellant at 24. None of these has any merit. Even more tell-
ing, however, is the fact that not even among these completely meritless
claims does petitioner so much as suggest that Rule 5:17(c)'s specificity
and support requirements are not firmly established or regularly
enforced.
38
tioner has not demonstrated -- or even argued-- that Rule 5:17(c)'s
thirty-five-page limit on petitions for appeal is unreasonable. Nor has
he suggested or presented evidence, as the defendant did in Weeks,
that he filed a motion to file an oversize brief that was denied.19
Absent a showing that the page limitation is unfairly or arbitrarily
enforced, we again decline, as we recently did in Weeks, to hold that
the mere existence of another reasonable procedural rule and the
requirement that an appellant abide by it constitute cause for a proce-
dural default.20 Cf. Hill v. Norris, 96 F.3d 1085, 1087-88 (8th Cir.
1996) (declining to find cause to excuse procedural default where
state habeas petitioner failed to file motion to file an overlength peti-
tion).
Finally, given the overwhelming evidence of petitioner's guilt in
this case -- including his own videotaped confession to the murder
and the independent corroboration he provided by leading police to
evidence and the scene of the crime -- we can discern no miscarriage
of justice in not excusing the default. Whatever else the petitioner
may have shown on this appeal, one thing we can say with absolute
certainty that he has not demonstrated is that the alleged constitutional
violation probably resulted in the conviction of one who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 326 (1995). Accordingly,
finding neither cause and prejudice nor a miscarriage of justice, we
agree with the district court -- as we infer petitioner himself really
does as well -- that the Virginia Supreme Court's reliance on its own
independent and adequate procedural rule bars our review of petition-
er's final two ineffective assistance of counsel claims.
Even were we convinced otherwise, we would almost certainly
reject petitioner's necessary claim that he was prejudiced by any
objectively unreasonable performance by counsel.21 In the face of
_________________________________________________________________
19 On the contrary, as we have indicated, Mueller's petition was itself,
at forty-seven pages, by all appearances considerably overlength. There
is no indication in the record whether he had obtained leave to file an
oversized petition.
20 We note that the United States Supreme Court limits petitions for
certiorari to 30 pages and opening briefs to 50 pages. See S. Ct. R.
33.1(g).
21 It may be that we would ultimately conclude that counsel's perfor-
mance in closing argument was unreasonable. However, we would be
39
defendant's videotaped confession and the powerful evidence derived
therefrom, it is virtually impossible for us to imagine that he could
carry the burden of establishing prejudice from his counsel's perfor-
_________________________________________________________________
most hesitant to so conclude. Counsel was confronted with an essentially
impossible situation. In confessing to having had sex with the ten-year-
old Charity and having killed her to prevent her from telling anyone what
he had done, Mueller himself had confessed to all of the elements of cap-
ital murder: a premeditated killing subsequent to a rape. Counsel could
have argued that Mueller had not actually confessed to all of these ele-
ments or he could simply have chosen not to remind the jury of the con-
fession in any way. But in an apparent effort to gain credibility with the
jury, instead he decided to acknowledge forthrightly what the jury
already knew -- that his client had, as he had confessed, raped and killed
Charity Powers. Having gained whatever credibility with the jury that he
could from this candid acknowledgment, he then proceeded, rather effec-
tively, to introduce doubt about whether Mueller intended to defile Pow-
ers -- arguably the only basis for a capital murder conviction as to which
he could credibly and legitimately raise doubt consistent with the confes-
sion itself -- and, ultimately, to ask the jury to show mercy and consider
convicting his client only of the rape and first degree murder offenses
with which he was also charged. We recognize that given the conces-
sions and the instructions, it may not have been technically or logically
possible for the jury to find the elements of first degree murder -- a pre-
meditated killing -- without at the same time finding Mueller guilty of
capital murder -- a premeditated killing subsequent to the commission
of a rape. For, once the jury found the premeditation necessary to the
first degree murder conviction, it theoretically would, based upon coun-
sel's acknowledgment, also have found Mueller guilty of capital murder.
Even so, it is not clear to us that this was not at least as reasonable a
course to take as offering an alternative first degree murder instruction
that omitted the element of premeditation and then arguing, in the face
of his client's videotaped confession, that Mueller had not premeditated
Powers' murder. In other words, this may well have been the very case
where an appeal to logic and reason in the end would, given the evidence
of premeditation, have disserved the defendant's interests. See United
States v. Cronic, 466 U.S. 648, 657 n.19 (1984) ("Of course, the Sixth
Amendment does not require that counsel do what is impossible or
unethical. If there is no bona fide defense to the charge, counsel cannot
create one and may disserve the interests of his client by attempting a
useless charade."). Once petitioner's motion to suppress was denied,
there simply were not many, if indeed any, options available to counsel
during trial that would not permit post hoc charges of ineffective assis-
tance.
40
mance. The jurors heard on videotape, from the defendant's own
mouth, that he raped the ten-year old Charity and then killed her to
keep her from talking; they watched the videotape showing him lead
the police to the scene and evidence of the crime and to Charity's
makeshift grave; and they listened to the coroner describe the manner
in which the young girl's throat had been slit and her nipples possibly
cut off. Mindful of these facts, we could hardly conclude that it was
reasonably probable that, but for counsel's asserted errors, a different
result would have obtained.22
VI.
Finally, petitioner argues that the district court erred in denying his
request for an evidentiary hearing on his Brady and related ineffective
assistance claims. In support of his request for an evidentiary hearing
under § 2254(e)(2), petitioner submitted affidavits from Kevin Speeks
and Stephen Cooper, one of the individuals who was with Speeks in
the Hardee's parking lot on the night of Charity's disappearance,
about their respective participation in photographic lineups. J.A. at
196-98. The district court adopted the Magistrate Judge's conclusion
that these affidavits did not add to the information that was before the
Virginia Supreme Court in 1992, and did not raise factual contentions
that, if true, would require the court to grant Mueller habeas relief.
We agree.
In his affidavit, Speeks states that he was asked "to look at 7 or 8
Polaroid photos of men to see if we could pick out the man we saw
at the Hardee's," and that "[a]fter viewing the photos, [he] made a
selection." Speeks further asserted that he and his three friends "com-
pared notes" about the photo lineups they had participated in, and that
"each . . . had selected one of the photos as the person [he] saw at the
Hardee's from among those spread out." J.A. at 197. Stephen Coo-
per's affidavit is even less illuminating, as he confirms only that he
was shown such a lineup. These facts, even if true, add nothing of
_________________________________________________________________
22 Petitioner also urges us to consider the cumulative effect of his inef-
fective assistance of counsel claims rather than whether each claim, con-
sidered alone, establishes a constitutional violation. This argument is
squarely foreclosed by our recent decision in Fisher v. Angelone, 163
F.3d 835, 852-53 (4th Cir. 1998).
41
consequence to either Mueller's Brady or ineffective assistance
claims, discussed at length above, and we therefore hold that the dis-
trict court did not err in refusing to grant Mueller an evidentiary hear-
ing. See, e.g., Cardwell v. Greene, 153 F.3d 331, 338 (4th Cir. 1998);
Beaver v. Thompson, 93 F.3d 1186, 1190 (4th Cir. 1996).
CONCLUSION
For the reasons stated herein, we deny the motion for a certificate
of appealability and dismiss the appeal.
DISMISSED
42