Evans v. Smith

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VERNON LEE EVANS, JR.,
Petitioner-Appellant,

v.

WILLIE SMITH, Warden, United
No. 99-22
States Penitentiary, Atlanta; J.
JOSEPH CURRAN, JR., Attorney
General of the State of Maryland,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-97-3711-L)

Argued: May 3, 2000

Decided: July 17, 2000

Before WILKINSON, Chief Judge, and WILKINS
and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed and dismissed by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Wilkins and Judge Williams
joined.

_________________________________________________________________

COUNSEL

ARGUED: Gerald Ira Fisher, FISHER & HANSEN, P.C., Washing-
ton, D.C., for Appellant. Annabelle Louise Lisic, Assistant Attorney
General, Criminal Appeals Division, OFFICE OF THE ATTORNEY
GENERAL, Baltimore, Maryland, for Appellees. ON BRIEF: A.
Stephen Hut, Jr., Susan A. MacIntyre, Mark S. Morelli, WILMER,
CUTLER & PICKERING, Washington, D.C., for Appellant. J.
Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals
Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore,
Maryland, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Appellant Vernon Lee Evans was convicted and sentenced to death
by Maryland juries for the contract murders of David Scott Pie-
chowicz and Susan Kennedy. Evans now raises a number of claims
in asking the federal courts to vacate his conviction and/or sentence.
Finding no merit in these claims, we affirm the district court's denial
of Evans' initial petition for habeas corpus. We also hold that Evans'
claim under Brady v. Maryland, 373 U.S. 83 (1963), is a second or
successive petition. As Evans has failed to meet the requirements for
a second or successive petition under 28 U.S.C.§ 2244(b)(2)(B), his
Brady petition must also be dismissed.

I.

Vernon Lee Evans, Jr., was hired by Anthony Grandison to kill
Cheryl and David Scott Piechowicz. The Piechowiczes were sched-
uled to testify as witnesses against Grandison in a federal narcotics
case. Grandison agreed to pay Evans $9,000 for carrying out the mur-
ders.

The Piechowiczes worked at the Warren House Motel in Baltimore
County, Maryland. On April 28, 1983, Susan Kennedy, the sister of
Cheryl Piechowicz, was working in Cheryl's place along with Scott
Piechowicz in the motel lobby. On that day, Evans, not knowing the
Piechowiczes, entered the motel with the purpose of eliminating the
couple on Grandison's behalf. After a short wait, Evans shot Scott
Piechowicz and Susan Kennedy in the motel lobby. Evans fired nine-

2
teen bullets at the victims with a MAC-11 machine pistol equipped
with a silencer or noise suppressor. The victims died from multiple
gunshot wounds.

Evans was arrested and charged with federal and state crimes. In
November 1983, he was convicted in federal district court, along with
Grandison, Janet Moore, and Rodney Kelly, of witness tampering and
interfering with the Piechowiczes' civil rights to be witnesses in a
judicial proceeding. Evans was sentenced to life and ten years in
prison, with the sentences to be served consecutively.

In 1984, Evans was tried on state charges in the Circuit Court for
Worcester County, Maryland. Specifically, Evans was tried for two
counts of first degree murder, conspiracy to commit murder, and the
use of a handgun in the commission of a felony or crime of violence.

During the state trial, the prosecution offered overwhelming
incriminating evidence against Evans through a number of witnesses.
The most damaging testimony came from Charlene Sparrow, who
was Evans' girlfriend at the time of the murders. Sparrow testified
that she accompanied Evans and Janet Moore to the Baltimore City
Jail two days before the shooting. At the jail, Evans and Moore met
with Grandison, who was awaiting his federal drug trial. Sparrow then
inspected the reception desk area of the Warren House Motel. She
reported to Evans concerning the people working there and the pres-
ence or absence of security features. Sparrow also obtained a room at
the motel with Evans' funds at his request. On the day of the murders,
Evans told Sparrow to wait for him in the car behind the motel. Just
before Evans walked to the motel, Sparrow looked inside the brown
canvas bag he was carrying and saw a machine gun. Some ten to fif-
teen minutes later, Evans returned to the car, gave the smoking MAC-
11 machine pistol to Sparrow, and asked her to wipe it down. Evans
had also told her that he would receive $9,000 "if he knocked both
of them off." Evans and Sparrow went to the mall that night to spend
part of the proceeds from the murders.

Other witnesses also supplied incriminating testimony as to Evans'
central role in the murders. For example, Moore testified as to her and
Evans' visit to Grandison at the jail two days before the killings. Cal-
vin Harper testified concerning the day of the murder and the two

3
days leading up to it. Harper's testimony included a description of
Evans' acquisition of the machine pistol used in the crime from Rod-
ney Kelly and Evans' statement that he liked the gun. Several other
witnesses were able to place Evans in the motel lobby during the time
immediately preceding the murders. For example, Etta Horne, who
worked at the motel, identified Evans as the man she saw sitting in
the motel lobby shortly before the murders. Helen Kondilidis, who
had entered the motel shortly before the murders, also identified
Evans as the man she saw sitting in the lobby.

The jury found Evans guilty of each of the crimes with which he
was charged. The jury then sentenced Evans to death on each murder
count. Evans was sentenced to life in prison for the conspiracy con-
viction and twenty years in prison for the handgun offense. These
non-capital sentences were to run consecutively to each other, as well
as consecutively to Evans' federal sentences of life and ten years.

The Maryland Court of Appeals affirmed Evans' state convictions
and sentences on direct appeal. See Evans v. State, 499 A.2d 1261
(Md. 1985). In June 1986, the Supreme Court denied Evans' petition
for certiorari. See Evans v. Maryland, 478 U.S. 1010 (1986).

Evans filed his first petition for state post-conviction relief in 1990
in the Circuit Court for Worcester County. The court denied relief on
all claims except Evans' challenge to the constitutionality of the sen-
tencing form used for the imposition of his death sentences. The court
thus ordered that Evans be resentenced.

In November 1992, Evans was resentenced on his murder convic-
tions. Evans' counsel focused primarily on mitigation evidence at the
resentencing hearing. After the hearing, the jury returned two death
sentences. These sentences were then affirmed by the Maryland Court
of Appeals. See Evans v. State, 637 A.2d 117 (Md.), cert. denied, 513
U.S. 833 (1994).

In 1995, Evans filed a second petition for state post-conviction
relief in the Circuit Court for Baltimore County. Evans raised a vari-
ety of claims relating both to his resentencing and to prior proceed-
ings. The court denied relief on all claims. The Maryland Court of
Appeals then denied Evans' application for review of this decision.

4
See Evans v. State, 693 A.2d 780 (Md.), cert. denied, 522 U.S. 966
(1997).

In November 1997, Evans filed a petition for habeas corpus in the
United States District Court for the District of Maryland. Evans
asserted numerous claims in his petition, including a claim that the
prosecutor at Evans' guilt phase trial had exercised peremptory chal-
lenges in a racially discriminatory manner and claims of ineffective
assistance on the part of resentencing counsel. The district court heard
argument on the petition over two days in April 1998.

In April 1999, Evans filed a motion asking the district court to stay
consideration of his petition so that he could exhaust a claim arising
under Brady v. Maryland, 373 U.S. 83 (1963), in state court. Evans'
Brady claim is based on his allegation that the state withheld an FBI
report recounting an agent's witness interview with Janet Bannister.
Evans contends that Bannister would testify that she saw an African
American who was much taller than Evans with a duffel bag in the
motel lobby and that she never saw Kondilidis in the lobby. Evans
asserts that this testimony could have altered the outcome of his
resentencing proceeding. The state counters, inter alia, that it did not
withhold the report from Evans and that, in any event, nothing pre-
vented Evans from raising this Brady claim long ago. Evans hoped to
amend his habeas petition to assert this claim in federal court if the
state courts denied relief.

In June 1999, the district court denied habeas relief. See Evans v.
Smith, 54 F. Supp. 2d 503 (D. Md. 1999). The district court also
denied the motion for a stay after receiving a proffer of Bannister's
testimony. Evans then filed a motion under Fed. R. Civ. P. 59(e) to
alter or amend the judgment, which the district court denied. The dis-
trict court subsequently granted in part Evans' application for a certif-
icate of appealability.

Later that year, Evans exhausted his Brady claim in the state
courts. The Baltimore County Circuit Court denied without a hearing
Evans' motion to reopen his post-conviction proceedings. See Evans
v. State, No. 83-CR-2339 (Circuit Ct. for Baltimore County, Oct. 20,
1999). The court found that (1) Evans' allegations and affidavit were
insufficient to raise the issue that the state had failed to provide excul-

5
patory material; (2) even if the state had failed to furnish the material,
Evans had failed to show that he was prevented from acquiring the
material and raising a Brady claim in his first attempt to seek state
post-conviction relief; and (3) Bannister's statement was insufficient
to support a reasonable probability that the disclosure of the statement
would have altered the outcome of the resentencing proceeding. The
Maryland Court of Appeals then denied Evans' application for leave
to appeal. See Evans v. State, Misc. No. 18 (Md. Dec. 16, 1999).

On February 1, 2000, Evans filed a new habeas petition in the dis-
trict court. This petition contained only Evans' Brady claim. He con-
temporaneously moved this court pursuant to 28 U.S.C. § 2244(b) for
authorization to file a second or successive habeas petition consisting
of the Brady claim. This court denied that motion on February 16,
2000. See In re Evans, No. 00-1 (4th Cir. Feb. 16, 2000) (order deny-
ing motion for authorization to file second or successive application
for habeas relief). Evans has also asked the district court to treat his
new habeas petition as a motion under Fed. R. Civ. P. 60(b) to reopen
his original habeas petition in order to add the Brady claim.

II.

We evaluate Evans' habeas petition according to the standards pre-
scribed by Congress at 28 U.S.C. § 2254 (1994 & Supp. III 1997), as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. We will thus
grant habeas relief with respect to a claim adjudicated on the merits
in state court proceedings only where such adjudication "resulted in
a decision that was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in
a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,"
id. § 2254(d)(2). A state court decision is contrary to clearly estab-
lished federal law if the state court "arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law" or "de-
cides a case differently than [the Supreme] Court has on a set of mate-
rially indistinguishable facts." Williams v. Taylor, 120 S. Ct. 1495,
1523 (2000). A state court decision unreasonably applies clearly
established federal law if the state court "identifies the correct govern-

6
ing legal principle from [the Supreme] Court's decisions but unrea-
sonably applies that principle to the facts of the prisoner's case." Id.
We also accord state court factual findings a presumption of correct-
ness that can be rebutted only by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).

III.

A.

The first claim raised by Evans on appeal is that the state exercised
its peremptory challenges during jury selection for Evans' state trial
in a racially discriminatory fashion in violation of Batson v. Kentucky,
476 U.S. 79 (1986). Batson provides that"the Equal Protection
Clause forbids the prosecutor to challenge potential jurors solely on
account of their race or on the assumption that black jurors as a group
will be unable impartially to consider the State's case against a black
defendant." Id. at 89. A prosecutor is otherwise entitled to exercise his
allotted peremptory challenges "for any reason at all, as long as that
reason is related to his view concerning the outcome of the case." Id.
(internal quotation marks omitted).

Batson sets forth a three-step evidentiary framework for evaluating
claims of racial discrimination in jury selection. See id. at 93-98. This
familiar framework is derived from the Supreme Court's equal pro-
tection and Title VII jurisprudence. See id. First, the defendant must
make out a prima facie case that the prosecutor has exercised peremp-
tory challenges in a racially discriminatory manner. See id. at 96-97.
Second, if the defendant has made a prima facie showing, "the burden
shifts to the State to come forward with a neutral explanation for chal-
lenging black jurors." Id. at 97. The prosecutor, of course, may not
rebut the defendant's prima facie case "merely by denying that he had
a discriminatory motive or affirming his good faith in making individ-
ual selections." Id. at 98 (internal quotation marks omitted). Rather,
"the prosecutor must give a clear and reasonably specific explanation
of his legitimate reasons for exercising the challenges." Id. at 98 n.20
(internal quotation marks omitted). Yet the explanation "need not rise
to the level justifying exercise of a challenge for cause." Id. at 97. In
fact, "[t]he second step of this process does not demand an explana-
tion that is persuasive, or even plausible." Purkett v. Elem, 514 U.S.

7
765, 767-68 (1995) (per curiam) (internal quotation marks omitted).
"Unless a discriminatory intent is inherent in the prosecutor's expla-
nation, the reason offered will be deemed race neutral," for in this
context "a legitimate reason is not a reason that makes sense, but a
reason that does not deny equal protection." Id. at 768, 769 (internal
quotation marks omitted). Third, if the prosecutor has articulated "a
neutral explanation related to the particular case to be tried," the trial
court then has "the duty to determine if the defendant has established
purposeful discrimination." Batson, 476 U.S. at 98. The defendant at
all times bears the ultimate burden of persuasion as to the existence
of purposeful discrimination. See, e.g., id. at 93; Purkett, 514 U.S. at
768.

In reviewing a trial court's decision concerning the presence of
intentional discrimination, it is essential that we accord that decision
the deference required by law. See, e.g., Hernandez v. New York, 500
U.S. 352, 364 (1991) (plurality opinion) ("[T]he trial court's decision
on the ultimate question of discriminatory intent represents a finding
of fact of the sort accorded great deference on appeal."); Batson, 476
U.S. at 98 n.21 ("[A] finding of intentional discrimination is a finding
of fact entitled to appropriate deference by a reviewing court." (inter-
nal quotation marks omitted)). As in other areas of the law that
address invidious discrimination, "[w]hether the prosecutor intended
to discriminate on the basis of race in challenging potential jurors is,
as Batson recognized, a question of historical fact." Hernandez, 500
U.S. at 367. Indeed, deference to trial court findings on discriminatory
intent is particularly important in this context because the Supreme
Court has instructed that such findings turn principally on credibility
determinations. See id. at 365; Batson , 476 U.S. at 98 n.21. As the
plurality explained in Hernandez:

In the typical peremptory challenge inquiry, the decisive
question will be whether counsel's race-neutral explanation
for a peremptory challenge should be believed. There will
seldom be much evidence bearing on that issue, and the best
evidence often will be the demeanor of the attorney who
exercises the challenge. As with the state of mind of a juror,
evaluation of the prosecutor's state of mind based on
demeanor and credibility lies peculiarly within a trial
judge's province.

8
500 U.S. at 365 (internal quotation marks omitted).

The precise formula used to review a finding of fact concerning
prosecutorial motive in exercising peremptory challenges depends on
the particular context. See id. Thus, on federal habeas, the same stan-
dard of review applied to other questions of fact governs our inquiry
concerning intentional discrimination. See id. at 366. Accordingly, a
state court's determination on this issue "shall be presumed to be cor-
rect" and the habeas petitioner bears "the burden of rebutting the pre-
sumption of correctness by clear and convincing evidence." 28 U.S.C.
§ 2254(e)(1).

B.

Evans argues initially that no state court has actually applied Bat-
son at any stage of this long course of litigation. As a result, Evans
claims, the state court decisions are entitled to no deference under the
habeas statute. Evans contends that these decisions are instead "con-
trary to . . . clearly established Federal law", 28 U.S.C. § 2254(d)(1),
and that he is therefore entitled to a new trial. Evans further argues
that the prosecutor's exercise of his peremptory challenges did not in
any event comport with Batson's requirements.

Our review of the record, however, has uncovered no reason to
overturn Evans' conviction on Batson grounds. To begin with, the
trial court demonstrated that it was very sensitive to the possible use
of race-based peremptory strikes during the jury selection process.
Although jury selection in Evans' state trial took place two years
before Batson was decided, the trial court warned the prosecutor that
"[t]here has been some extremely strong language in dicta about using
peremptory challenges for racial purposes." The court then instructed
the prosecutor to take this case law into account in exercising the
state's peremptory challenges. The court also kept a record of the
racial identities of the potential jurors that were struck and the jurors
that were seated.

After the jury had been selected, Evans' counsel informed the court
that the panel was unacceptable to the defendant because the defense
believed that the state had "exercised its peremptory challenges to
purposely limit blacks from representation on the panel." The state

9
had utilized eight of its ten peremptory challenges to strike African
Americans from the venire. Two of the twelve jurors chosen were
African Americans, and one of the two alternates later chosen was
also African-American.

The court invited the prosecutor to respond to Evans' objections.
The prosecutor explained, "We struck on background, age, occupa-
tion, what was learned during the voir dire at the bench and in open
court. We did not strike on racial grounds." After some further discus-
sion, the court overruled Evans' objections and stated that the objec-
tions were noted for the record. Evans did not ask the court to seek
any further explanation of the peremptory strikes from the prosecutor.

It is thus clear that the trial court applied Batson in essence. The
trial court warned the prosecutor that it would scrutinize the state's
exercise of its peremptory challenges for any racial bias. When the
defense objected, the court gave the prosecutor an opportunity to
explain his actions. The prosecutor provided a race-neutral explana-
tion that the trial court could assess in light of its own observation of
jury selection. Evans provided no further support for his allegation of
intentional discrimination and did not seek further explanation from
the prosecutor. Although the trial court did not record explicit find-
ings, its overruling of Evans' objection in the context of the proceed-
ings makes it clear that the trial court accepted the prosecutor's
explanation and found that there was no discriminatory intent.

Evans nonetheless contends that the trial court erred in failing to
require the prosecutor to render individualized explanations for each
particular peremptory strike of an African American. Batson, how-
ever, does not require individualized explanations for peremptory
strikes. Rather, it requires only that the explanation be race-neutral,
see Batson, 476 U.S. at 97, "clear and reasonably specific," id. at 98
n.20, and "related to the particular case to be tried," id. at 98. While
the prosecutor in many cases will offer more individualized explana-
tions, a court may nonetheless find that the prosecutor has complied
with Batson based on an overall explanation that is found satisfactory
as to each of the challenged strikes, see, e.g. , United States v. Allison,
908 F.2d 1531, 1537, 1538 n.9 (11th Cir. 1990); United States v.
Davis, 871 F.2d 71, 72 (8th Cir. 1989). Here it is apparent that the
trial court found that the prosecutor's explanation was satisfactory as

10
to each individual juror. And like the Supreme Court, we refuse to
impose stringent, detailed requirements as to how trial courts are to
implement Batson. See Batson, 476 U.S. at 99 & 99-100 n.24. We
therefore cannot say that the trial court acted contrary to the law of
Batson.

Not only did the state trial court apply Batson in essence, but no
state court to which Evans' Batson claim was subsequently presented
indicated that it found any merit in the claim. In 1985, the Maryland
Court of Appeals applied a remarkably Batson-like framework itself
in affirming the trial court's judgment on direct appeal. The appellate
court noted that, whereas the Supreme Court's decision in Swain v.
Alabama, 380 U.S. 202 (1965), required defendants to prove system-
atic exclusion of racial minorities from juries over time, there was a
growing body of state and federal case law that enabled a defendant
to show a constitutional violation based on the exercise of peremptory
challenges at the defendant's trial alone. See Evans, 499 A.2d at 1281;
see also Ford v. Georgia, 498 U.S. 411, 420 (1991) ("Batson did not
change the nature of the violation recognized in Swain, but merely the
quantum of proof necessary to substantiate a particular claim").
Indeed, several of the cases relied upon by the Maryland Court of
Appeals for its evidentiary framework were also cited by the Supreme
Court in Batson both in describing the growing departures from
Swain's burden and in articulating the Batson framework itself. Com-
pare Batson, 476 U.S. at 82 n.1, 92 n.17, 97, 98 n.20, with Evans, 499
A.2d at 1281.1 The Maryland court also pointed to a number of other
state cases employing a Batson-like framework and noted that in com-
menting on the denial of certiorari in McCray v. New York, 461 U.S.
961 (1983), five Justices indicated that the time might be approaching
for a reexamination of Swain. See Evans , 499 A.2d at 1281.
_________________________________________________________________

1 The Supreme Court also noted with approval in Batson that some
states had been "applying a version of the evidentiary standard we recog-
nize today." Batson, 476 U.S. at 99. Further, the Court "decline[d] . . .
to formulate particular procedures to be followed upon a defendant's
timely objection to a prosecutor's challenges." Id.; see also id. at 99-100
n.24 ("In light of the variety of jury selection practices followed in our
state and federal trial courts, we make no attempt to instruct these courts
how best to implement our holding today.").

11
The appellate court then described the strikingly Batson-like
approach proposed by recent cases:

Each [case] starts with the presumption established by
Swain, that the prosecution is using the State's challenges
properly. Each then requires the defendant to establish a
prima facie case of discrimination sufficient to overcome the
presumption, followed by an opportunity for explanation on
the part of the prosecution if a prima facie case is made out,
with the ultimate resolution of any dispute to be made by the
trial judge.

Evans, 499 A.2d at 1281. The court then applied this framework to
Evans' claim. It began by assuming arguendo that Evans had made
a prima facie showing of discrimination and proceeded to assess the
prosecutor's explanation.2 See id. at 1282. The court concluded,
however, that "the explanation offered by the prosecutor, and appar-
ently accepted by the court, was sufficient under the circumstances to
support the decision of the trial judge in overruling the defendant's
objection." Id. The court emphasized that"the explanation of the
prosecutor stood uncontroverted and unimpeached." Id.

Further, the first state post-conviction court found in 1991 -- five
years after Batson had been decided -- that the earlier state court con-
clusions were consistent with the subsequent Supreme Court decision.
Although the first state post-conviction court found that Evans' Bat-
son claim had been "finally litigated," it nonetheless examined Evans'
claim in light of Batson to find that no constitutional violation had
occurred. And the second state post-conviction court declined to
address the substance of Evans' Batson claim because it found that
the matter had already been "finally litigated." Thus, the state courts
_________________________________________________________________

2 Indeed, this assumption was appropriate, for "[o]nce a prosecutor has
offered a race-neutral explanation for the peremptory challenges and the
trial court has ruled on the ultimate question of intentional discrimina-
tion, the preliminary issue of whether the defendant had made a prima
facie showing becomes moot." Hernandez, 500 U.S. at 359 (plurality
opinion); see also United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983).

12
that had the opportunity to reevaluate Evans' claim in light of the Bat-
son decision found no reason to disturb the earlier adjudications.

Evans nonetheless argues that a Batson violation did in fact occur.
For example, he attacks the prosecutor's explanation at this late stage
by asserting that some similarly situated jurors were not stricken from
the venire. Evans claims that the prosecutor's proffered reasons thus
cannot explain the prosecutor's exercise of his peremptory challenges.

But as the Supreme Court has stated, our review of a trial court's
adjudication of a Batson claim must be marked by great deference to
the trial court's finding on the question of discrimination. See, e.g.,
Batson, 476 U.S. at 98 n.21; Hernandez, 500 U.S. at 364 (plurality
opinion); see also Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir.
1997) (trial court's Batson findings "turn largely on credibility deter-
minations" and are thus entitled to deference); United States v.
Bynum, 3 F.3d 769, 772 (4th Cir. 1993) (trial court is in best position
to enforce Batson's requirements because trial court can evaluate the
prosecutor's candor in offering reasons for challenges). Indeed, it
would be an impermissible exercise in hindsight for us now to upset
the trial court's credibility determination in evaluating the prosecu-
tor's explanation. And as the district court correctly observed, the "re-
trospective parsing of the `curricula vitae' of the jurors" is no
substitute for the observations of the trial judge, who witnessed first-
hand the process. We simply cannot overlook the fact that the trial
court had conducted an extensive voir dire of the jury pool, which
was documented in several hundred pages of trial transcripts, and was
able to observe the demeanor and hear the responses of the prospec-
tive jurors in court. This insight enabled the trial court to compare the
prosecutor's explanation with what occurred at the bench and in open
court. Most significantly, the trial court was able to observe the prose-
cutor's demeanor and conduct and evaluate the credibility of his
explanation. And all of this was after the court had warned the prose-
cutor that his peremptory challenges would be under scrutiny for any
taint of racial bias. Evans has failed to persuade us that the trial
court's finding that there was no intentional discrimination was incor-
rect.

In sum, the state courts have carefully examined on several occa-
sions Evans' challenge to the prosecution's exercise of its peremptory

13
strikes. They have examined the prosecution's conduct for any hint
of racial animus, and none of these courts has found that a constitu-
tional violation occurred. And Evans has failed to overcome the pre-
sumption of correctness accorded to the state courts' conclusion that
there was no racial discrimination in the selection of his jury. We hold
that the state court adjudications were neither"contrary to" nor "an
unreasonable application of" clearly established federal law. 28
U.S.C. § 2254(d)(1). The district court therefore properly denied
Evans' request for habeas relief on his Batson claim.

IV.

Evans next claims that he was denied his Sixth Amendment right
to the effective assistance of counsel at his resentencing. Such claims
are governed by the standards prescribed by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), and its progeny, see,
e.g., Nix v. Whiteside, 475 U.S. 157 (1986); Kimmelman v. Morrison,
477 U.S. 365 (1986); Lockhart v. Fretwell, 506 U.S. 364 (1993); Wil-
liams v. Taylor, 120 S. Ct. 1495 (2000). In order to make out an inef-
fective assistance claim, a convicted defendant must show both that
counsel's performance was deficient and that this deficient perfor-
mance prejudiced the defendant. See Strickland , 466 U.S. at 687. The
performance prong requires the court to determine whether counsel's
conduct, viewed from counsel's perspective at the time and in light
of all the circumstances, fell "outside the wide range of professionally
competent assistance." Id. at 688-89, 690. In other words, "the defen-
dant must show that counsel's representation fell below an objective
standard of reasonableness." Id. at 688. Judicial scrutiny of counsel's
performance, of course, "must be highly deferential" and must scrupu-
lously seek to "eliminate the distorting effects of hindsight." Id. at
689. The prejudice prong requires the court to ask whether "there is
a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694. "A
reasonable probability is a probability sufficient to undermine confi-
dence in the outcome." Id.

A.

Evans first claims that resentencing counsel were deficient in fail-
ing to interview several witnesses whose testimony would purportedly

14
have helped to show that Evans was not a "principal in the first
degree" and thus not death-eligible under Maryland law. See Md.
Code Ann. art. 27, § 413(e)(1) (Supp. 1999); Gary v. State, 671 A.2d
495, 498 (Md. 1996). Specifically, Evans claims that counsel acted
incompetently in failing to interview Roberta Weinstein, who saw
part of the shootings, and Darece Pinkney, whose testimony allegedly
corroborated some of Weinstein's observations, even though counsel
had access to the names, roles, and whereabouts of these individuals.
Evans contends that the testimony of these witnesses would have pro-
vided evidence that he was not the shooter and therefore not a princi-
pal in the first degree. Evans claims that there is a reasonable
probability that, but for counsel's error, the result of the resentencing
proceeding would have been different.

We disagree. The performance of Evans' counsel with respect to
the principalship issue was not constitutionally deficient but rather
was the product of reasonable tactical decisions. And even if coun-
sel's performance were deficient, any error failed to prejudice Evans
within the meaning of Strickland.

Both Weinstein and Pinkney testified at Evans' second state post-
conviction proceeding in 1996. Weinstein testified that, while work-
ing in her jewelry store in the Warren House, she heard a sound "like
glass crashing" and ran to the store window. She then saw the back
and side of the gunman through the window from a distance of
approximately thirty feet. She stated that she "really could not see"
the gunman's face and could not discern his race. Weinstein estimated
the gunman's height as 5'7" or 5'8", whereas Evans is 5'2". Wein-
stein could not identify Evans as the shooter at a line-up shortly after
the incident, and upon viewing Evans in the courtroom, she stated that
the shooter was "a lot taller." She further stated that there may have
been another person in the lobby at the time, but she was not sure and
could not give any details about this possible individual.

Pinkney testified that shortly after the shooting, while standing on
her front porch about two doors down from the Warren House Motel,
she "saw a man just streak past [her] door" from the direction of the
motel. Pinkney stated that the individual was black and estimated the
person's height to be about 5'8" or 5'9". Upon viewing Evans in the
courtroom as he stood at counsel's table, she claimed that the individ-

15
ual she saw fleeing was "much taller." Weinstein and Pinkney each
testified as well that the individual they saw was wearing a light-
colored top and dark pants, whereas Sparrow stated that Evans had
worn a suit to the motel that day. Both Weinstein and Pinkney gave
statements prior to Evans' guilt/innocence trial, and both seemed to
be willing to testify at Evans' resentencing had they been called.

Evans' resentencing counsel, Sally Chester and William Kan-
wisher, each testified at the second state post-conviction proceeding
as to their preparation for and conduct at resentencing. Evans cites
their testimony in an effort to show that their failure to call Weinstein
and Pinkney was a product of mere neglect rather than tactics. Chester
testified that she and Kanwisher had decided that they "could not win
on the principality issue." Counsel instead concluded that "if we were
going to get [Evans] a life sentence, [it] was going to happen in miti-
gation." As Kanwisher testified, "we felt that the emphasis ought to
be on what we thought was pretty good positive mitigation in the
case." Chester further stated that "Mr. Kanwisher and I came to the
conclusion that mitigation was really the only way that we had to go
of any substance" and that "it doesn't take a Rhodes Scholar to figure
out that we were not in a very good position as to first degree princi-
pal in this case."

As a result, at resentencing, Chester did not emphasize principal-
ship in her opening statement. Rather, she emphasized mitigation and
then presented a number of mitigation witnesses, including relatives
of Evans and individuals who could attest to his behavior in prison.
Evans himself professed to be a remorseful and changed man during
his allocution to the jury. Chester testified that she was "prepared to
argue first degree principal" if the government's case "had fallen
through," but she stuck to her plan of "presenting a lot of evidence in
mitigation" because "[w]e felt that was the strongest part of our case
and that is what we had to go with." After the government had put on
an overwhelming demonstration that Evans was the triggerman --
thus presenting a case that Chester acknowledged had not "fallen
through" -- she conceded principalship in her closing argument and
pressed for mitigation.

When questioned about Weinstein and Pinkney, Chester testified
that, at the time of resentencing, she did not have any evidence that

16
she believed would work to show that Evans was not the shooter.
Chester recalled that Weinstein, who had testified at Evans' federal
trial, "was unable to identify [the shooter] one way or the other."
Chester also stated, however, that had she known that Weinstein was
willing to say that the shooter was substantially taller than Evans, she
would have presented that evidence. When asked if she had any tacti-
cal reason for not presenting such evidence, Chester responded that
she did not. Chester acknowledged, however, that trying to contest
principalship while at the same time arguing mitigation would have
been "difficult" and "not desirable," albeit "not impossible and not
inconsistent." Kanwisher likewise stated that, had he possessed evi-
dence that an individual claimed that the shooter was much taller than
Evans, he would have presented that evidence at resentencing. Kan-
wisher claimed that he "lost track" of Weinstein and that Pinkney "fell
through the cracks."

The second state post-conviction court rejected Evans' ineffective
assistance claim. The court found that counsel's conduct flowed from
a reasonable decision to pursue primarily a mitigation strategy at
resentencing rather than contesting principalship. The court found that
counsel "chose a trial strategy not to challenge the State's evidence
on [the principalship] issue," "chose to present a position of remorse
and rehabilitation," and "pursued the strategy competently and consis-
tently." The court concluded that "the decision to pursue mitigation
was a sound tactical one reached after considering the issue and con-
sulting with [Evans] and [Evans] voicing no objection."

We cannot say that the state court's adjudication was contrary to
or unreasonably applied federal law. The Supreme Court has stated
that "strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judg-
ments support the limitations on investigation." Strickland, 466 U.S.
at 690-91. "In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." Id. at 691. Accordingly, "a particular
decision not to investigate must be directly assessed for reasonable-
ness in all the circumstances, applying a heavy measure of deference
to counsel's judgments." Id.

As the district court noted, Evans' counsel ceased their efforts to
locate Weinstein and Pinkney only after concluding that principalship

17
was likely a lost cause and that the best strategy was to focus on miti-
gation. The decision to emphasize what counsel believed was strong
mitigation evidence was certainly reasonable and made further inves-
tigations into principalship unnecessary. Moreover, the decision not
to contest principalship was eminently reasonable in light of the
state's strong evidence that Evans was the shooter. The state had pre-
sented this evidence at Evans' guilt/innocence trial, and trial counsel's
efforts to challenge these witnesses and argue that Evans was not the
triggerman were utterly unsuccessful. Not only did the jury return a
verdict of guilty, but the jury also necessarily found that Evans was
a principal in the first degree in imposing two death sentences.
Indeed, as the district court noted, any attempt to reprise the failed
principalship strategy might itself have been of questionable judg-
ment. A focus on principalship may actually have undermined the
defense by calling even greater attention to the details of the crime in
which Evans was undisputably involved.

Further, resentencing counsel acknowledged that they had no plau-
sible alternative theory to offer as to who was the shooter. While they
had considered the possibility of trying to plant the thought that Rod-
ney Kelly may have been the shooter, they abandoned this tack
because they simply "couldn't find a way to do it." Indeed, according
to a police detective, Kelly stood at 6'3" and was thus a poor match
for the allegedly 5'7" to 5'9" individual glimpsed by Weinstein and
Pinkney. Finally, though principalship and mitigation are not incon-
sistent in theory, counsel was correct to observe the practical difficul-
ties of highlighting contrition while denying a species of wrongdoing.
In light of all of this, the failure to interview Weinstein and Pinkney
was not incompetent. Evans has thus failed to "overcome the pre-
sumption that, under the circumstances, [counsel's] action might be
considered sound trial strategy." Id. at 689 (internal quotation marks
omitted).

Even if counsel's performance were constitutionally deficient,
Evans was not prejudiced by any error. As noted, the state's evidence
against Evans on the question of principalship was simply over-
whelming. The state presented testimony that Grandison had hired
Evans to kill the Piechowiczes and that Evans stated he would receive
$9,000 "if he knocked both of them off." A number of witnesses
placed Evans in the lobby near the time of the shootings. Sparrow tes-

18
tified that Evans carried a canvas bag with a gun in it to the motel
shortly before the murders and was carrying the smoking machine
pistol shortly after the murders. Chester herself acknowledged that
Sparrow's testimony "pretty much put the nails in our coffin because
I couldn't seem to impeach her." In addition, Harper testified as to
Evans' acquisition of the gun from Kelly and Evans' statement that
he liked the gun.

Against this mountain of evidence, there is little possibility that the
testimony of Weinstein and Pinkney would have made a difference.
Weinstein estimated the gunman's height from a distance of thirty to
thirty-five feet and was unable to see his face or discern his race. Fur-
ther, the district court noted that Weinstein had overestimated the
height of Scott Piechowicz by three to four inches, and her estimate
of the gunman's height as 5'7" or 5'8" was based partly on her belief
that Scott was "a head taller" than the gunman. As for Pinkney, she
did not see the shooting but merely described an individual who had
suddenly "streaked" past her front porch. Finally, even if counsel had
presented this rather weak evidence, it likely would still have been in
the context of what was primarily a mitigation strategy. Indeed, as we
have already noted, pursuit of the principalship strategy may even
have been detrimental to Evans' efforts to avoid a capital sentence.

B.

Evans also claims that resentencing counsel were deficient in fail-
ing to conduct further investigation and offer expert testimony con-
cerning Evans' likely federal parole date. Evans claims that there is
a reasonable probability that, but for these errors, the result of the
resentencing proceeding would have been different.

We disagree. Evans has failed to show either that counsel's perfor-
mance with respect to the parole issue was deficient or that he was
prejudiced by any possible error. Under Maryland law, a capital
defendant may present information to the sentencing jury concerning
his eligibility for parole in the event a life sentence is imposed. See
Doering v. State, 545 A.2d 1281, 1295 (Md. 1988). Accordingly,
Evans' resentencing counsel telephoned the federal penitentiary in
Marion, Illinois, where Evans was serving his federal sentences of life
plus ten years, and inquired as to Evans' parole eligibility. Chester

19
and Kanwisher testified at the second state post-conviction proceed-
ing that the information they received from the penitentiary was that
Evans could or would be paroled in 1993 or 1996. At that point,
Evans would begin serving his state sentences. Because of the prox-
imity of what Evans' counsel believed to be his parole date, they
avoided the issue of federal parole at resentencing"like the plague."

Counsel instead concentrated on convincing the jury that the impo-
sition of life sentences would ensure that Evans would likely die in
prison or at least not receive parole until he was very old (Evans was
forty-three years old at the time). Most significantly, counsel called
Paul Davis, the Chairman of the Maryland Parole Commission, to tes-
tify on Evans' behalf. The essence of Davis' testimony was that
Evans would not be eligible for state parole until at least several dec-
ades into his state sentences and that someone in Evans' position was
unlikely to be paroled even after becoming eligible.

Further, counsel argued forcefully at both opening and closing that
Evans was not going anywhere. In her opening statement, Chester
stated that "two life sentences in this case will undoubtedly mean that
this man will never walk outside the walls of a prison again." Chester
also explained to the jury that Evans was already serving the first of
four consecutive sentences: "Vernon Evans is serving a sentence right
now that nobody is going to touch, that isn't going to go away of life
plus ten years, another sentence of twenty years added on to that. So,
we're up to life plus thirty, and another life sentence on that. In this
case he can receive or will receive two more life sentences or the
death penalty." At closing, counsel recapitulated Davis' testimony,
did the math for the jury, and concluded that Evans would not be eli-
gible for parole until he was at least eighty, "which is highly unlikely
under the circumstances of the prison world . . . and even then, as you
heard Mr. Davis say, lifers don't get paroled that easily. They simply
don't." The prosecutor noted in response that an inmate is eligible for
parole after serving fifteen years of a life sentence and that there was
no proof that Evans would die in jail. Yet the prosecutor spent most
of his closing argument focusing on the "murder for hire" nature of
the killings and Evans' unrepentant, unrehabilitated condition.

Evans contends that if counsel had conducted further research, they
would have learned that Evans was highly unlikely to be paroled in

20
1993 or 1996 and would likely serve at least thirty years in federal
custody. Evans claims that counsel acted incompetently for doing no
more than contacting a representative of the Marion penitentiary and
should instead have consulted experts on federal parole who could
provide information that Evans was unlikely to receive federal parole
for another thirty years. According to Evans, there is a reasonable
probability that the jury would not have sentenced him to death if it
had received such information.

The second state post-conviction court rejected Evans' claim on the
merits, finding that "[t]he jury had before it sufficient testimony and
argument that Petitioner was unlikely to ever be released from
prison." We find no reason to disturb this conclusion. Evans' counsel
acted reasonably in contacting the federal penitentiary where Evans
was incarcerated at the time in an effort to determine when he was eli-
gible and likely to be released from federal custody. It was not unrea-
sonable for counsel to rely on that information without consulting an
outside expert in federal parole. Indeed, counsel acknowledged that
"we felt that that information that we received was good information."
It was also reasonable for counsel then to avoid the issue of federal
parole and concentrate instead on the evidence that Evans' numerous,
lengthy, and consecutive sentences would likely keep him behind bars
for the rest of his life. Indeed, Evans' counsel even called the state
parole commission chairman to the stand to hammer this point home.
We thus cannot say that counsel's performance with respect to this
matter was incompetent.

Nor did Evans suffer any prejudice from counsel's course of action
even if such course were deficient. Evans makes much of the fact that
shortly before returning the death sentences, the resentencing jury
sent the court a note with questions concerning how many years
Evans might serve in prison, and the court simply referred the jury to
the evidence that it already possessed. But as Evans' counsel argued
at closing and the state post-conviction court observed, the evidence
before the jury was more than sufficient to show that Evans would
likely spend the rest of his life in prison. Even were we to indulge
Evans' speculation concerning the significance of the jury's question,
there is no reason to believe that the piece of information or expert
testimony that Evans wishes had been presented would have altered
the outcome of the proceeding.

21
We thus cannot say with respect to either ineffective assistance
claim that "counsel's conduct so undermined the proper functioning
of the adversarial process that the [proceeding] cannot be relied on as
having produced a just result." Strickland , 466 U.S. at 686. Accord-
ingly, the state court adjudications of these claims were neither con-
trary to clearly established federal law nor an unreasonable
application of that law.

V.

The final set of issues relates to Evans' attempt to raise his Brady
claim with regard to Janet Bannister's testimony in the district court
after having filed his initial federal habeas petition.3 We evaluate his
arguments under the federal habeas statute as amended by AEDPA
and in light of the significant interests in finality, prompt adjudication,
and federalism that underlie the federal habeas scheme.

A.

Evans argues that the district court should have stayed the federal
proceedings so that he could exhaust his Brady claim in state court
and then add this claim to his pending habeas petition if the state
courts denied relief. We review the district court's decision whether
to stay the proceedings pending exhaustion for abuse of discretion.
See, e.g., Brewer v. Johnson, 139 F.3d 491, 492 (5th Cir. 1998); Cal-
deron v. United States Dist. Ct. for the Northern Dist. of California,
134 F.3d 981, 987-88 (9th Cir. 1998); see also Hill v. Mitchell, 30 F.
Supp. 2d 997, 1000-01 (S.D. Ohio 1998).

We find that the district court acted within its discretion in denying
Evans' request for a stay. The district court properly concluded that
none of Evans' reasons for requesting a stay justified a delay in the
proceedings.
_________________________________________________________________
3 On February 16, 2000 this Court issued an order denying Evans'
motion for authorization to file a second or successive application for
habeas relief. Evans, however, continues to press his Brady claim. We
construe his position as a Motion to Reconsider our earlier order and take
this opportunity to explain it more fully.

22
First, there was no threat of imminent execution. Indeed, the state
had agreed not to seek an execution warrant during the litigation of
either the federal habeas petition or the Brady claim in state court.
The district court further noted that a stay of execution could be
issued in the event that the state sought to execute Evans before he
had fully litigated his Brady claim.

Second, a stay was not required to preserve an opportunity for fed-
eral review. The district court correctly noted that if the state courts
ruled against Evans on his Brady claim, Evans would be able to ask
the Fourth Circuit for permission to file a second or successive peti-
tion. In fact, as discussed below, Evans later filed a motion in this
court pursuant to 28 U.S.C. § 2244 for authorization to file a second
or successive application for relief, which this court denied. See In re
Evans, No. 00-1 (4th Cir. Feb. 16, 2000) (order denying motion for
authorization to file second or successive application for habeas
relief). As the district court observed, the grant of a stay and subse-
quent leave to amend would have circumvented the habeas statute.
Such action would have allowed Evans to file what would essentially
be a second or successive petition while evading the prerequisites that
Congress has established for the filing of such petitions.

Third, the district court found that the powerful interests in finality
and prompt adjudication that govern habeas proceedings outweighed
any possible harm from the piecemeal litigation that might result from
the denial of a stay. The district court was justifiably sensitive to the
interests of the parties, as well as of the state and federal judicial sys-
tems, in settling the merits of the claims in Evans' properly filed
habeas petition as soon as possible.

We thus find that the district court did not abuse its discretion in
declining to grant a stay.4
_________________________________________________________________

4 The district court also properly declined to grant a stay pending the
Supreme Court's decision in Williams v. Taylor , 120 S. Ct. 1495 (2000).
We have considered the district court's denial of Evans' habeas petition
in light of Williams and the other applicable law, and we find no error.

23
B.

Evans also now contends that the Supreme Court's recent decisions
in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), and Slack v.
McDaniel, 120 S. Ct. 1595 (2000), permit him to raise his Brady
claim in a new habeas petition without being subject to the standards
governing the filing of second or successive petitions prescribed in 28
U.S.C. § 2244(b).5 In Evans' view, he is not required to meet the pre-
requisites for a second or successive petition in order to bring his
Brady claim because he allegedly could not discover the Brady claim
until after the instant habeas petition had already been filed.
_________________________________________________________________
5 Section 2244(b) provides:

(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless --

(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavail-
able; or

(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due dili-
gence; and

(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for con-
stitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

On February 2, 2000, Evans moved this court pursuant to this subsec-
tion for authorization to file a successive petition. Evans specifically
invoked § 2244(b)(2)(B) as the basis for permitting him to bring his
Brady claim, which had not previously been presented in a habeas peti-
tion, in a new petition. After carefully reviewing the parties' submis-
sions, this court denied authorization to file a successive application for
relief because Evans had failed to make a prima facie showing that his
application met the cause and prejudice standards of§ 2244(b)(2)(B).
See Order of February 16, 2000; 28 U.S.C. § 2244(b)(3)(C).

24
We disagree. To begin with, the standards that Congress has estab-
lished for the filing of second or successive petitions account for pre-
cisely the type of situation Evans alleges. Congress has empowered
the courts of appeals to authorize the filing of a second or successive
habeas petition where "the application makes a prima facie showing
that the application satisfies the requirements of[§ 2244(b)]." 28
U.S.C. § 2244(b)(3)(C). Accordingly, a petitioner may be able to
present a claim for the first time in a successive habeas petition where
the claim relies on a new rule of constitutional law, see 28 U.S.C.
§ 2244(b)(2)(A), or, if the claim is based on newly discovered evi-
dence, where the petitioner can make a prima facie showing of both
cause and prejudice within the meaning of § 2244(b)(2)(B)(i) and
§ 2244(b)(2)(B)(ii). These requirements serve the important interests
in finality and respect for state court judgments that underlie the statu-
tory habeas scheme. Cf. Williams v. Taylor, 120 S. Ct. 1479, 1490
(2000); McClesky v. Zant, 499 U.S. 467, 493 (1991). At the same
time, the statute affords an opportunity to bring new claims where the
petitioner can show that he was not at fault for failing to raise those
claims previously and where the claim, if meritorious, would suffi-
ciently undermine confidence in the judgment at issue.

Evans failed to make a showing of cause and prejudice in his Feb-
ruary 2, 2000 request to file a second or successive petition under
§ 2244(b). In light of the ample evidence in the record supporting the
judgments of both the guilt phase jury and the resentencing jury,
Evans simply cannot "establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would have
found [him] guilty of the underlying offense." 28 U.S.C.
§ 2244(b)(2)(B)(ii). Even if a Brady violation had occurred, Evans'
proffer of Bannister's testimony shows that such evidence would
hardly undermine confidence in the juries' conclusions. Bannister
would essentially testify that shortly before the murders she saw a
neatly dressed African-American man in the lobby who at one point
stood next to her and whom she would estimate to be around 5'7" or
5'8". Bannister would also claim that there was a tan duffel bag near
where the man had been seated and that she and Helen Kondilidis
were not in the lobby at the same time. These inconclusive observa-
tions amount to little in light of the copious testimony that proves,
inter alia, that Evans contracted with Grandison to murder the Pie-
chowiczes; that Evans carried a gun of the same type used in the mur-

25
ders into the motel shortly before the shootings; that Evans was in the
motel lobby shortly before the killings occurred; and that Evans was
seen literally carrying a smoking gun very shortly after Kennedy and
Piechowicz were gunned down.

And all this is to say nothing of the state's arguments and the state
post-conviction court's conclusion that Evans lacked cause for failing
to discover and bring his Brady claim previously. Indeed, we have
taken some pains in this opinion to explain why we believe that the
case against Evans is an overwhelming one as to both guilt and princi-
palship. Accordingly, we have denied authorization to file a succes-
sive petition because Evans has failed to meet the statutory standard.
See In re Evans, No. 00-1 (4th Cir. Feb. 16, 2000) (order denying
motion for authorization to file second or successive application for
habeas relief). Evans cannot now have yet another bite at the apple.
His attempt to undermine the state courts' conclusions with the most
marginal of testimony packaged in Strickland and Brady claims is
simply grasping at straws.

To exempt Evans' Brady claim from the requirements of § 2244(b)
would thwart the statutory scheme and render Congress' limitations
on second or successive petitions a nullity in a wide range of cases.
Indeed, it would open the federal courts to all sorts of allegedly newly
discovered claims without requiring petitioners to show both cause
and prejudice for failing to bring these claims in their previously adju-
dicated petitions. AEDPA's purpose of achieving timely, final resolu-
tions of claims in the interests of justice and out of respect for state
judicial processes would surely be eroded under such a regime.

Further, we are not persuaded that the Supreme Court's recent
decisions in Slack and Martinez-Villareal entitle Evans to escape the
statutory restrictions on "second or successive" petitions in seeking
federal habeas review of his Brady claim. Those cases address the
question of what constitutes a "second or successive" petition for pur-
poses of the habeas statute. Both cases, however, are concerned with
situations entirely different from that in the instant case.

In Martinez-Villareal, the prisoner filed a habeas petition raising a
number of claims, including an Eighth Amendment claim under Ford
v. Wainwright, 477 U.S. 399, 410 (1986), that he was incompetent to

26
be executed. The district court dismissed Martinez-Villareal's Ford
claim as premature but adjudicated other claims on the merits. When
Martinez-Villareal's Ford claim later ripened because the state had
obtained an execution warrant, he moved the district court to reopen
the Ford claim. The district court stated, however, that it did not have
jurisdiction over the claim because Martinez-Villareal was bringing
the claim in a "second" petition.

The Supreme Court disagreed and held that the Ford claim was not
a "second or successive" petition under § 2244(b). See Martinez-
Villareal, 523 U.S. at 645. The Court stated that "[t]here was only one
application for habeas relief, and the District Court ruled (or should
have ruled) on each claim at the time it became ripe." Id. at 643. The
Court also analogized the procedural history of the Ford claim to a
situation where an initial petition is dismissed for failure to exhaust
state remedies and the petitioner returns to a federal habeas court after
exhaustion. See id. at 644-45. The Court emphasized that "in both sit-
uations, the habeas petitioner does not receive an adjudication of his
claim." Id. at 645. The Court further stated that "[t]o hold otherwise
would mean that a dismissal of a first habeas petition for technical
procedural reasons would bar the prisoner from ever obtaining federal
habeas review." Id. Review of the Ford claim would have been pre-
cluded because, as the Court noted, the claim stood no chance of
meeting § 2244's threshold for bringing a"second or successive" peti-
tion. This was because the claim had been previously presented and,
even if newly presented, could have fit into neither of § 2244(b)(2)'s
exceptions to the bar on such petitions. The Court was thus concerned
with preventing Martinez-Villareal from being executed before any
federal habeas review of his timely brought claim that he was incom-
petent to be executed.

In Slack, the prisoner filed a federal habeas petition raising both
exhausted and unexhausted claims. The district court dismissed the
entire petition without prejudice under the exhaustion of remedies
rule of Rose v. Lundy, 455 U.S. 509 (1982). After his state post-
conviction proceedings, Slack filed a new federal habeas petition. The
district court found that the new petition was "second or successive"
despite the fact that Slack's previous petition had been dismissed
without prejudice for procedural reasons.

27
The Supreme Court rejected this conclusion, holding that "[a]
habeas petition filed in the district court after an initial habeas petition
was unadjudicated on its merits and dismissed for failure to exhaust
state remedies is not a second or successive petition." Slack, 120 S.
Ct. at 1604-05. In doing so, the Court relied on its analysis in
Martinez-Villareal: "`[None] of our cases . . . have ever suggested
that a prisoner whose habeas petition was dismissed for failure to
exhaust state remedies, and who then did exhaust those remedies and
returned to federal court, was by such action filing a successive peti-
tion.'" Slack, 120 S. Ct. at 1605 (quoting Martinez-Villareal, 523 U.S.
at 644) (alteration in original). The Court emphasized that no claim
made in the petition that had been dismissed under Rose v. Lundy had
been adjudicated by the district court.

We believe that neither Martinez-Villareal nor Slack controls the
instant case. Both Martinez-Villareal and Slack are predicated on the
idea that the claim asserted was genuinely part of the prisoner's initial
petition and was therefore entitled to an adjudication.6 In Martinez-
Villareal, the Ford claim was not adjudicated along with the other
claims in the initial petition because it was premature. In Slack, none
of the claims initially presented was accepted for filing because they
were part of a mixed petition subject to dismissal without prejudice
under Rose v. Lundy. Here, however, no part of Evans' initial petition
was dismissed for "technical procedural reasons." The petition was
instead accepted for filing and adjudicated on the merits. Unlike the
Ford claim in Martinez-Villareal, Evans' Brady claim was not part of
this first petition. And unlike the prisoner in Slack, Evans received an
adjudication on the merits of his initial petition. There is accordingly
_________________________________________________________________

6 Other circuits have similarly recognized the limited scope of
Martinez-Villareal's holding. See, e.g., In re Moore, 196 F.3d 252, 254
(D.C. Cir. 1999) ("The Supreme Court has clearly held that when a
motion is dismissed for `technical procedural reasons' and `the habeas
petitioner does not receive an adjudication of his claim,' a subsequent
petition is not `a second or successive motion' under the AEDPA."
(quoting Martinez-Villareal, 523 U.S. at 645)); In re Page, 179 F.3d
1024, 1025 (7th Cir. 1999) (Martinez-Villareal stands for the proposition
that where a petition is dismissed for technical procedural reasons, the
"dismissal does not affect the petitioner's right to file a subsequent peti-
tion").

28
no reason not to count Evans' now-adjudicated first petition as his
one and only "initial" petition when considering his present attempt
to file a Brady claim. Evans' effort to obtain federal habeas review
of his Brady claim at this stage of the litigation can thus only be
deemed a "second or successive" application for relief. As we have
already rejected Evans' application for authorization to file such a
petition, the district court lacks jurisdiction over the Brady claim.

VI.

Finding no merit in Evans' claims, we affirm the district court's
denial of Evans' initial habeas petition. We also affirm the district
court's denial of a stay and hold that Evans' Brady claim is a second
or successive petition within the meaning of § 2244. For the reasons
stated herein, both of Evans' petitions must be dismissed.

AFFIRMED AND DISMISSED

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