Wiggins v. Corcoran

Reversed and remanded by Supreme
Court opinion filed 6/26/03.
Petition for cert granted by Supreme
Court order filed 11/18/02.
 Filed: June 4, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 01-23
(CA-99-2420-JFM)

Kevin Wiggins,

Petitioner - Appellee,

versus

Thomas R. Corcoran, etc., et al.,

Respondents - Appellants.

O R D E R

The court amends its opinion filed May 2, 2002, as follows:

On page 20, first paragraph, lines 2 and 4 -- the dates of

“April 16" and “April 15" are corrected to read “September 16" and

“September 15.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
KEVIN WIGGINS,
Petitioner-Appellee,

v.

THOMAS R. CORCORAN, Warden,
Maryland Correctional Adjustment No. 01-23
Center; WILLIAM W. SONDERVAN,
Commissioner of Corrections of the
State of Maryland; J. JOSEPH
CURRAN, JR.,
Respondents-Appellants.
4444444444444444444444444444444444444444444444448

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-99-2420-JFM)

Argued: January 24, 2002

Decided: May 2, 2002

Before WILKINSON, Chief Judge, and WIDENER and
NIEMEYER, Circuit Judges.

____________________________________________________________

Reversed by published opinion. Judge Widener wrote the opinion.
Chief Judge Wilkinson wrote a concurring opinion. Judge Niemeyer
wrote a concurring opinion.

____________________________________________________________

COUNSEL

ARGUED: Ann Norman Bosse, Assistant Attorney General, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Donald Beaton Verrilli, Jr.,
JENNER & BLOCK, L.L.C., Washington, D.C., for Appellee. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Lara M. Flint, Brian P. Hauck,
JENNER & BLOCK, L.L.C., Washington, D.C., for Appellee.

____________________________________________________________

OPINION

WIDENER, Circuit Judge:

Introduction

The State of Maryland appeals from the district court's grant of
Kevin Wiggins' 28 U.S.C. § 2254 petition for a writ of habeas corpus.
The district court invalidated Kevin Wiggins' capital murder convic-
tion under Jackson v. Virginia, 443 U.S. 307 (1979), and death sen-
tence under Strickland v. Washington, 466 U.S. 668 (1984). The
district court found that the Maryland Court of Appeals, although stat-
ing properly the governing principle of Jackson v. Virginia, applied
it unreasonably in upholding Wiggins' capital murder conviction.
Furthermore, the district court found that Wiggins' sentencing coun-
sel was ineffective for failure to investigate and present a case in miti-
gation during sentencing in accord with Williams v. Taylor, 529 U.S.
362 (2000). This court has jurisdiction pursuant to 28 U.S.C. § 2253
and we reverse.

I. Facts

Kevin Wiggins was indicted in the Circuit Court for Baltimore
County, Maryland on October 20, 1988 for the capital murder and
robbery of Florence Lacs. Wiggins was also indicted on charges of
burglary and theft. The State filed notice of intention to seek the death
penalty. Wiggins elected a trial by judge, and after four days of trial,
Judge Hinkel found Wiggins guilty of the first degree murder of Flor-
ence Lacs, robbery, and two counts of theft.

The evidence adduced at trial established that, on September 17,
1988 at approximately 3:50 p.m., Florence Lacs was found dead in

2
her bathtub partially covered by cloudy water. She was wearing a blue
skirt, white blouse, and white beads. This clothing was similar to or
the same as the outfit Mrs. Lacs had worn on Thursday, September
15, 1988 when she accompanied her friend Mary Elgert to a lun-
cheon. Mrs. Elgert testified that at the time Mrs. Lacs was wearing a
blue skirt and white blouse. Mrs. Elgert also testified that Mrs. Lacs
drove her home from the luncheon at about 4:00 p.m.

Elizabeth Lane, another acquaintance of Mrs. Lacs, passed by her
apartment at approximately 4:00 p.m. on September 16 and noticed
that her orange-red Chevrolet Chevette was not in the parking lot. A
third friend, Edith Vassar, testified that she "received a phone call on
Friday," September 16 and that she was "quite sure" it was Mrs. Lacs
on the phone.1 When Mrs. Lacs did not arrive at Mrs. Lane's home
for a scheduled card game on September 17, Mrs. Lane became
alarmed and called the police at around 2:00 p.m. She told the police
that she had last seen Mrs. Lacs on September 15 and at the time Mrs.
Lacs was wearing a red dress.

Upon arrival at Mrs. Lacs' apartment, the police found no evidence
of forced entry, either at the doors or the windows, but that the apart-
ment had been partially ransacked. Detective Ches testified that he
found a baseball cap bearing a Ryder logo on the living room floor.
Detective Ches found a wet cloth on the dining room table and a
damp towel on Mrs. Lacs' bed. He further testified that he lifted sev-
eral fingerprints from the inside of the entrance door, the kitchen wall,
and on the bathroom doorjamb. In the bathtub, floating in the water,
Detective Ches found a dark colored thread. Some kitchen cleaners
and a can of Black Flag were observed on the bathroom floor. Detec-
tive Crabbs testified to the presence of two T.V. Guides on the coffee
table in front of the sofa. One, dated September 10-16, had been
marked in pen through September 15 and had a bookmark inserted in
the pages for that date. The other copy, dated September 17-23, was
unmarked.
____________________________________________________________
1
Edith Vassar testified that after she reported this conversation to the
police, she received a phone call from an unknown person who tried to
convince her that her recollection of the date of the conversation with
Lacs was in error.

3
 Detective Butt analyzed the fingerprints taken from the crime
scene. He identified two of them as coming from two of the officers
at the scene, but the other prints did not match Wiggins or Mrs. Lacs.
Furthermore, tests of the fibers and hairs from the hat and bathtub
were not associated with Wiggins.

Dr. Margarita Korell, Assistant State Medical Examiner, performed
an autopsy on Mrs. Lacs on the morning of September 18. Dr. Korell
observed that Mrs. Lacs' lungs were bogey, that is to say contained
fluid and were hyperinflated, a sign of drowning. Additionally, Dr.
Korell testified that she observed trauma on the left hand (bruise) and
an area of bleeding in the muscle that covers the thyroid cartilage. She
testified that these latter injuries were caused by "some external
force" consistent with a struggle prior to the victim's death. From this,
Dr. Korell concluded that Mrs. Lacs was murdered. However, Dr.
Korell could not determine the maximum period Mrs. Lacs had been
dead to any degree of medical certainty.

Chianti Thomas, a 12-year old resident of Mrs. Lacs' building, tes-
tified that on September 15, at some time between 4:30 and 5:00 p.m.,
she was visiting with Chantell Greenwood and Shanita Patterson at an
apartment near Mrs. Lacs' apartment. When they left the apartment,
Miss Patterson had trouble locking the door, and she sought Mrs.
Lacs' assistance. A man approached and offered to help. Miss
Thomas testified that, at between 5:00 and 5:30 p.m., she heard this
man thank Mrs. Lacs for watching some sheetrock for him. Miss
Thomas identified this man as Wiggins from a pre-trial photographic
lineup. However, she was unable to identify Wiggins in court. Finally,
Miss Thomas testified that after the conversation with Mrs. Lacs,
Wiggins left.

Robert Weinberg, Wiggins' employer and construction contractor,
was working at Mrs. Lacs' building at the time of her death. Wein-
berg testified that on September 14, Mrs. Lacs called out to Wiggins
from her window expressing concern that a work truck might block
her car. Weinberg assured her that the truck would not block her car.
Weinberg testified that on September 15 he released Wiggins from
work between 4:00 and 4:30 p.m., but that about 30 minutes later,
Wiggins came back and told him that he had moved some sheetrock,
a service Weinberg had not requested. Weinberg stated that this

4
action would have taken only about 1-1/2 to 2 minutes, and that,
although Wiggins reported for work on September 16, he left early
because he said he was being evicted on that day.

Geraldine Armstrong, Wiggins' girlfriend, testified that Wiggins
came to pick her up on September 15 in Mrs. Lacs' Chevette at
around 7:45 p.m. After having an altercation resulting in Miss Arm-
strong's brother brandishing a handgun at Wiggins, Wiggins and Miss
Armstrong went shopping using the victim's credit cards. They went
shopping again the next day in Mrs. Lacs' Chevette, purchasing a dia-
mond ring at J.C. Penny's on Mrs. Lacs' credit card. On September
17th, they pawned a ring belonging to Mrs. Lacs. Miss Armstrong tes-
tified that Wiggins told her that he had found the car and that the
credit cards belonged to his aunt.

On September 21, the police spotted Wiggins and Geraldine Arm-
strong driving Mrs. Lacs' Chevette. The Maryland Court of Appeals
found that Wiggins made a statement to the police that Miss Arm-
strong "didn't have anything to do with this," and that he found Mrs.
Lacs' car with the keys in it in a restaurant parking lot on September
16. According to that statement, the credit cards were in a bag on the
floor, and Mrs. Lacs' ring was on the floor of the car. Wiggins was
arrested and the police found a rubber glove in his pocket. A piece
of this glove was tested for residual traces of the cleaners found in
Mrs. Lacs' apartment. None were found. Wiggins admitted to using
the credit cards and pawning the ring.

The State endeavored to prove that Wiggins admitted murdering
Mrs. Lacs by offering the testimony of two inmates who were incar-
cerated along with Wiggins. The first inmate, John McElroy, testified
that Wiggins told him that he hit Mrs. Lacs in the head with a bat, put
her in the bathtub, and made off with $15,000 from her home. On
cross examination, Wiggins' counsel elicited testimony that McElroy
had a long history of PCP use and was currently prescribed to take
Elavil, a mood altering drug.

The second inmate, Christopher Turner, testified that Wiggins told
him that he had stolen Mrs. Lacs' car, beaten and kicked her, then
drowned her in the bathtub with lye or some other chemical in the
water. Turner testified that Wiggins admitted to him that he had stolen

5
the car, taken Mrs. Lacs' credit cards, money, and a ring from her fin-
ger, that he had used the credit cards to buy clothes and jewelry, and
that he let his girlfriend use the credit cards. On cross examination,
Wiggins' counsel elicited testimony that Mr. Turner had a long his-
tory of exchanging information to law enforcement for leniency, was
suffering from active psychosis, and had entered into an agreement to
limit sentencing on pending matters in exchange for his testimony.

The defense called an expert in forensic pathology, Dr. Gregory
Kauffman, to challenge the State's theory of the cause of death
(drowning) and also to establish that at the time of discovery and pho-
tography of the body on September 17, Mrs. Lacs had been dead no
more than 18 hours. Dr. Kauffman asserted that drowning was
unlikely because there were no signs of a struggle, but agreed that the
death was a homicide. Finally, he testified that, within a reasonable
degree of medical certainty, Mrs. Lacs' time of death was no earlier
than 3 a.m. on Saturday, September 17.

At the close of the case, Judge Hinkel found Wiggins guilty of the
murder of Mrs. Lacs, robbery, and theft. In his ruling, Judge Hinkel
indicated that he did not believe either McElroy or Turner. He found
that Wiggins was at Mrs. Lacs' apartment building "at a relevant
time", that Mrs. Lacs died sometime on Thursday, September 15, and
not any later. The judge also believed to be due to mistaken memory
the evidence that Edith Vassar gave regarding the telephone call on
the 16th and Elizabeth Lane's missing person's report, indicating that
Mrs. Lacs was wearing a red dress on the 15th. In closing, the judge
remarked, "[t]he defense argues that any presumption that he is the
robber is rebutted by the testimony of Miss Vassar, but my decision
is not based on any presumption arising from the recent possession of
stolen property, but my belief and fact finding and decision is based
upon all the evidence that I have weighed in this case and not by any
presumption."

Wiggins chose a jury for sentencing. Instead of developing a case
in mitigation based on Wiggins' social history, defense counsel chose
to question the essential fact that Wiggins was not the actual killer.2
____________________________________________________________
2
Under the Maryland statutory scheme, the proof concerning guilt
required at a capital sentencing hearing is different from the proof

6
Defense counsel conceded that Wiggins had indeed been convicted of
murder, but implored the jury that it might be "at least reasonably
possible, if not highly probable, that Florence Lacs died at the hands
of someone other than Kevin Wiggins," and therefore, Wiggins was
not a principal in the first degree, eliminating his eligibility for the
death penalty. The defense introduced no mitigating evidence other
than the stipulated statutory mitigating factor that Wiggins had no
prior violent convictions. The jury sentenced Wiggins to death. The
Maryland Court of Appeals affirmed the conviction and sentence, the
sentence by a divided court. Wiggins v. State, 597 A.2d 1359, 1367
(Md. 1991).

Wiggins applied for state post-conviction relief, alleging that the
failure to make out a case in mitigation based on his social history
constituted ineffective assistance of counsel. In the state proceeding,
Wiggins' counsel presented a social history report detailing Wiggins'
history of physical, sexual, and mental abuse at the hands of his par-
ents and guardians, and that his IQ indicated borderline mental retar-
dation. From the bench, the court stated that Wiggins' trial counsel
may have been ineffective in that they failed to have a social history
prepared for mitigation, but expressed no opinion as to whether he
had suffered prejudice or whether the decision was justified. How-
ever, in its formal opinion, the court found that counsel had made a
"tactical decision and it was reasonable." A divided Maryland Court
of Appeals affirmed. Wiggins v. State, 724 A.2d 1, 17 (Md. 1999).

Wiggins filed a timely 28 U.S.C. § 2254 petition in the district
court. The district court found that the Maryland Court of Appeals
had unreasonably applied the standard articulated in Jackson v. Vir-
____________________________________________________________
required at the guilt or innocence stage of the trial. At the guilt or inno-
cence stage, the State must prove beyond a reasonable doubt that the
defendant is guilty of first degree murder. However, at the sentencing
stage, the State must show beyond a reasonable doubt that the defendant
was the actual perpetrator of the murder. In other words, under Maryland
law, he must be a principal in the first degree. See Md. Code Art. 27,
§ 413(e)(1); Md. Rule 4-343(3). "T]he jury [at sentencing] still is
required to make its own determination, unanimously and beyond a rea-
sonable doubt, that appellant was the actual killer." Wiggins v. State, 724
A.2d 1, 15 (Md. 1999).

7
ginia, 443 U.S. 307 (1979), pertaining to sufficiency of the evidence
challenges when it affirmed his convictions. See Wiggins v. Corco-
ran, 164 F. Supp. 2d 538, 554 (D. Md. 2001). Additionally, the dis-
trict court found that Wiggins' counsel did not render effective
assistance at sentencing. The district court based its decision in large
part on the Supreme Court's recent decision in Williams v. Taylor,
529 U.S. 362 (2000), finding counsel ineffective for failure to investi-
gate and present at sentencing his client's social history. The district
court reasoned that "Wiggins's evidence was much stronger, and the
State's evidence favoring imposition of the death penalty was far
weaker, than the comparable evidence in Williams ," and concluded
that Wiggins was entitled to relief. Wiggins v. Corcoran, 164 F. Supp.
2d at 557-60. The district court explicitly found that Wiggins' case
could not be distinguished on the ground that trial counsel had made
a legitimate tactical decision because it found that a tactical decision
to be reasonable must be based on a reasonable investigation which
was not performed. Wiggins, 164 F. Supp. 2d at 558-59. The district
court granted the petition, vacated the conviction and sentence, and
ordered Wiggins released from the murder charge. 164 F. Supp. 2d
at 576. However, the district court stayed its judgment pending our
resolution of the State's appeal.

II. Standard of Review

As a result of the Antiterrorism and Effective Death Penalty Act's
amendments to § 2254, our review of state criminal convictions is cir-
cumscribed. A federal court may only grant relief under § 2254 if it
is shown that a decision of a state court "resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as established by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1). A decision is "contrary to"
clearly established federal law "if the state court arrives at a conclu-
sion opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently from [the
Supreme] Court on a set of materially indistinguishable facts." Wil-
liams v. Taylor, 529 U.S. 362, 412-13 (2000). The "unreasonable
application" grounds for granting the writ applies "if the state court
identifies the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that principle to the facts
of the prisoner's case." Williams, 529 U.S. at 412-13. See also Bell

8
v. Jarvis, 236 F.3d 149, 157 (4th Cir. 2000) (en banc). However, a
writ of habeas corpus may not issue if the federal court, in its own
judgment, decides that the state court decision applied clearly estab-
lished federal law merely "erroneously or incorrectly." Vick v. Wil-
liams, 233 F.3d 213, 216 (4th Cir. 2000) (citation omitted). Instead,
we must decide if the state court's application of federal law was
objectively unreasonable. 233 F.3d at 216. We have said that the cri-
terion of reasonableness for purposes of § 2254(d)(1) is "whether the
[state court's] determination is at least minimally consistent with the
facts and circumstances of the case." Bell v. Jarvis, 236 F.3d at 159
(quoting Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (cita-
tion omitted)).

Both of Wiggins' contentions here implicate the "unreasonable
application" ground for relief under § 2254(d)(1) because the Mary-
land Court of Appeals identified the correct principles governing
Wiggins' claims from Supreme Court precedent. We review de novo
the district court's decision on a § 2254 petition based on a state court
record. Spicer v. Roxbury Correctional Institute, 194 F.3d 547, 555
(4th Cir. 1999). Therefore, we must decide for ourselves whether the
Maryland Court of Appeals unreasonably applied clearly established
federal law as determined by the Supreme Court.

III. Wiggins' Jackson v. Virginia Claim3
____________________________________________________________
3
Although Jackson announced the appropriate standard for sufficiency
of the evidence review in habeas corpus cases, the Maryland court of
appeals found it applicable to direct appeals in Tichnell v. State, 415
A.2d 830, 842 (Md. 1980), and subsequently applied it on direct appeal
of Wiggins' conviction. This is the same method of analysis utilized by
the Supreme Court in United States v. Powell, 469 U.S. 57, 67 (1984),
a case on direct appeal. There the Court equated the "substantial evi-
dence" standard of Glasser v. United States, 315 U.S. 60 (1942), also a
direct appeal case, with Jackson's rationality test. See United States v.
Powell, 469 U.S. 57, 67 (1984) ("Sufficiency-of-the evidence review
involves assessment by the courts of whether the evidence adduced at
trial could support any rational determination of guilty beyond a reason-
able doubt.") (citing Glasser v. United States, 315 U.S. 60 (1942), and
Jackson v. Virginia, 443 U.S. 307 (1979)).

9
 In Jackson v. Virginia, the Supreme Court stated that the "critical
inquiry on review of the sufficiency of the evidence to support a crim-
inal conviction . . . [is] whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt." Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979). The question to be answered in
applying the standard is "whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt." Jackson, 443 U.S. at 319 (italics in original). Conflicting
inferences presented by the facts in the historical record are presumed
to have been resolved in favor of the prosecution "even if it does not
affirmatively appear in the record", and we must defer to that resolu-
tion." Jackson, 443 U.S. at 326; Wright v. West, 505 U.S. 277, 297
(1992). The Maryland Court of Appeals identified these controlling
principles of law correctly. Wiggins v. State, 597 A.2d at 1366-67. As
stated above, it is our task to decide whether the state court's applica-
tion of these precepts is unreasonable in this case: to do this we must
decide whether the Court of Appeals' decision is minimally consistent
with the historical record of facts. Bell v. Jarvis, 236 F.3d at 159. We
conclude that it is; indeed, in our opinion, it is not only minimally
consistent with, but fully supported by the record.

In deciding Wiggins' sufficiency claim on direct appeal, the Mary-
land Court of Appeals reviewed the trial court's findings of fact for
clear error pursuant to state law and concluded that no such error was
present. The Court stated that the trial judge "considered but rejected
Wiggins's argument that the circumstances taken together, demon-
strated a reasonable hypothesis of innocence." Wiggins v. State, 597
A.2d at 1367.4 Furthermore, the Court of Appeals concluded that the
trial judge explicitly "did not credit any of Wiggins's evidence that
the robbery and murder were committed at a time subsequent to his
theft of the victim's car and other personal property." 597 A.2d at
1367. Lastly, the Court stated that the conflicting testimony regarding
time of death did not render the trial court's ultimate conclusion of
guilt clearly erroneous. As such, the Maryland Court of Appeals
found that there was sufficient evidence for a rational trier of fact to
____________________________________________________________
4
The Maryland rule which the trial judge considered in this case is
more favorable to defendants than the federal rule. Compare Wilson v.
State, 573 A.2d 831, 834 (Md. 1990), with Jackson, 443 U.S. at 320.

10
conclude, as Judge Hinkel did, that Wiggins robbed and murdered
Mrs. Lacs on September 15. 597 A.2d at 1367.

A recitation of the facts found by the trial judge and the inferences
that could reasonably be drawn therefrom will demonstrate that the
Maryland Court of Appeals applied Jackson reasonably.5 Kevin Wig-
____________________________________________________________
5
The district court began its Jackson analysis by stating that only one
piece of evidence supported an inference that Wiggins murdered Lacs,
namely his possession of Mrs. Lacs' property. 164 F. Supp. 2d at 554.
However, the court stated that Wiggins' conviction could not be sus-
tained on that basis, because the trial judge had refused to draw that very
inference. Stating that the Maryland Court of Appeals appeared to rely
on that inference to affirm, the district court reasoned that it would be a
violation of due process "for an appellate court, in affirming a convic-
tion, to rely upon an inference that is only permissible and that was
expressly rejected by the finder of fact." Accordingly, the district court
proceeded to examine the record facts for other evidence of guilt, finding
none. The district court, however, misapprehended the finding of the
Maryland trial court and also the decision of the Maryland Court of
Appeals. To repeat, what Judge Hinkel decided with respect to the
recently stolen property follows:

The defendant of course is in possession of recently stolen prop-
erty. The defense argues that any presumption that he is the rob-
ber is rebutted upon testimony of M. S. Vassar, but my decision
is not based on any presumption arising from the recent posses-
sion of stolen property, but my belief and fact finding and deci-
sion is based upon all the evidence that I have weighed in this
case and not by any presumption. [J.A.550]

So the district court found that the Maryland trial court did exactly
what the Maryland trial court did not do. It laid off the finding of the
Maryland trial court solely to possession of Mrs. Lacs' property which
had been recently stolen, the very thing that Judge Hinkel did not do,
rather basing his decision on "all the evidence that I have weighed in this
case and not by any presumption." Although we cannot know all the
mental processes of Judge Hinkel, it may well be that he was aware of
such cases as West v. State, 539 A.2d 231 (Md. 1988), in which the
recent possession of a stolen money order after a purse snatching suf-
ficed to support the crime of receiver but not stealing the money order.
However that may be, and whatever the presumption may be in Mary-
land, Judge Hinkel did not rely on it, rather, as noted, he relied on "all

11
gins was working in Lacs' building on September 15, 1988. Wiggins
was dismissed from work at or about 4:30 p.m. on that day. Wiggins
had no legitimate reason to stay at work after the time his supervisor
dismissed him, however, he returned to the building sometime after
4:30 p.m. While in the building, Wiggins was seen near Mrs. Lacs'
apartment by Chianti Thomas, who also testified that Wiggins and
Mrs. Lacs briefly conversed. When Wiggins returned from the build-
ing some 30 minutes later, he told his supervisor that he moved some
sheetrock in the apartment building. This job, according to Wiggins'
supervisor, would only have taken "a couple of minutes." Later that
same night, Wiggins was found in possession of Mrs. Lacs' credit
cards, her ring, and her car. There was evidence that Wiggins' girl-
friend, who came with him that evening of September 15th, forged
Mrs. Lacs' name to the credit card slips, while accompanied by Wig-
gins. The trial court could reasonably have drawn several inferences
from these facts, that Wiggins was in the vicinity of Ms. Lacs' apart-
ment sometime around 5:00 p.m. on the evening of September 15th,
that he had ample time to steal Mrs. Lacs' property, approximately 30
minutes, and that his return to explain his presence on the job site was
pre-textual.

The time of death was not established to a reasonable medical cer-
tainty by medical testimony at trial. In fact, the conclusions of the
____________________________________________________________
the evidence that I have weighed in this case and not by any presump-
tion." Judge Hinkel's trial decision as to consideration of the evidence
was consistent with the direction in Jackson as to the review of evidence,
that:

the factfinder's role as weigher of the evidence is preserved
through a conclusion that upon judicial review all of the evidence
is to be considered in the light most favorable to the prosecution.
443 U.S. at 319 (italics in original).

And this quotation from Jackson was more recently repeated in Wright
v. West, 505 U.S. 277, 296 (1992). The fact that the Maryland trial court
did not rely on any presumption, in our opinion, did not prevent that
court from its reliance on all of the evidence in the case, which included,
among many other items, the fact that Mrs. Lacs' automobile, credit
cards, and ring had been stolen at a time contemporaneous with her mur-
der and that Wiggins was present at her house at that time.

12
medical experts were discounted by the trial judge. However, that the
time of death was not established to any scientific certainty is of little
moment because ample evidence supported the conclusion that Mrs.
Lacs was killed on the evening of September 15, thus implicating
Wiggins in more than mere theft or robbery. First, there was the testi-
mony of Mrs. Lacs' friends regarding her attire the last time she was
seen alive. The testimony established that Mrs. Lacs was wearing a
blue skirt, white blouse, and white beads when she was seen at her
regular card game on the 15th. This was the same outfit that she was
wearing when she was found dead on the 17th.6 Furthermore, there
was evidence that Mrs. Lacs had marked certain television programs
of apparent interest in her TV Guide, and the last markings in the TV
Guide were for September 15. As stated above, other testimony estab-
lished that Mrs. Lacs was last perceived alive7 on September 15,
sometime between 4:00 and 5:00 p.m. when Chianti Thomas heard
Wiggins thank Mrs. Lacs for watching some sheetrock for him. It was
only a few hours later that Wiggins picked up Miss Armstrong in
Mrs. Lacs' car and the two began using Mrs. Lacs' credit cards.
Adding all the circumstances together, the trial judge concluded that
Florence Lacs' robbery and murder occurred on the evening of Sep-
tember 15th and that Wiggins, being there at "a relevant time," was
the robber and murderer. On this basis, the Maryland Court of
Appeals found Jackson v. Virginia satisfied. We are of opinion and
decide that the Maryland Court of Appeals' decision was not only at
least minimally consistent with the record of facts found by the trial
judge and thus was not unreasonable within the meaning of § 2254(d),
____________________________________________________________
6
This testimony was not without contradiction. Mary Elgert filed a
missing persons report indicating that Mrs. Lacs was wearing a white
blouse and red skirt when she was last seen on Thursday. The trial judge
explicitly resolved the conflicting testimony in favor of the prosecution
stating that Mrs. Elgert's recollection was simply wrong. It is the exclu-
sive province of the trier of fact, save only for clear error, to resolve con-
flicting facts and credibility determinations at trial. The Maryland Court
of Appeals reviewed the record evidence for clear error and found none.
Nor is there any evidence that we can see that would indicate a result to
the contrary.
7
Edith Vassar testified that she received a call from Florence Lacs on
the morning of September 16. The trial judge explicitly found that Mrs.
Vassar did not correctly remember.

13
it was fully supported by the record. Accordingly, we reverse the dis-
trict court's grant of Wiggins' petition on this issue.

IV. Wiggins' Strickland Claim

We review Wiggins' claim de novo applying the same standard
prescribed by § 2254(d) and find that the Maryland court's decision
was a reasonable application of Strickland. Strickland v. Washington,
466 U.S. 668 (1984), establishes a two component, conjunctive test
for ineffectiveness of counsel claims; namely that counsel's perfor-
mance was deficient and that such performance prejudiced the
defense. To establish deficient performance the defendant must show
that counsel's performance fell below an objective standard of reason-
ableness. 466 U.S. at 687. The reasonableness inquiry proceeds based
on all of the facts and circumstances of the case "viewed as of the
time of counsel's conduct." 466 U.S. 690. This performance prong is
highly deferential to counsel's choices, and informed strategic deci-
sions are virtually unchallengeable. 466 U.S. at 690. A defendant
"must overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.'" 466
U.S. at 489 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, the defendant must show that but for counsel's
deficient performance "there is a reasonable probability that . . . the
result of the proceeding would have been different." 466 U.S. at 688.
A reasonable probability is one "sufficient to undermine confidence
in the outcome of the proceeding." 466 U.S. at 694. The Maryland
Court of Appeals analyzed Wiggins' ineffectiveness claim under this
standard. Wiggins v. State, 724 A.2d 1, 12 (Md. 1999).

The district court found that Wiggins did not receive effective
assistance of counsel at sentencing because his counsel failed to
develop a social history exposing Wiggins' harsh childhood and sub-
average mental capacity.8 The district court decided that the Court of
Appeals was unreasonable in its analysis of Wiggins' claim because
it was purportedly "almost directly contrary to the Supreme Court's
recent decision in Williams v. Taylor." Wiggins v. Corcoran, 164 F.
Supp. 2d at 557 (citation omitted). Upon its independent review of the
____________________________________________________________
8
The district court did not find counsel ineffective with respect to the
conviction, only as to the sentencing.

14
claim, the district court found for Wiggins on the claim and thus
granted his § 2254 petition on this aspect of the petition, as well as
that the evidence did not support the judgment of conviction.

In Williams v. Taylor, counsel began preparing for sentencing one
week before the proceeding and failed utterly to prepare any social
history because of a misapprehension of state law regarding access to
juvenile records. Williams, 529 U.S. at 395. That social history would
have disclosed a wealth of potentially mitigating evidence grounded
in Williams' "nightmarish" childhood, as well as his being "borderline
mentally retarded." In other words, counsel's complete failure to
investigate could not have led to a reasonable strategic choice for the
simple reason that he had no information upon which to make a stra-
tegic choice. It was this wholesale failure that led the Court to con-
clude that Williams did not receive constitutionally sufficient
representation. Williams, 529 U.S. at 396 (citing 1 ABA Standards for
Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)).

We think that despite any superficial similarities to the instant case,
the district court's reliance on Williams v. Taylor to find the Maryland
Court of Appeals' decision unreasonable was misplaced. First, Wil-
liams does not establish a per se rule that counsel must develop and
present an exhaustive social history in order to effectively represent
a client in a capital murder case. It merely reaffirms the long settled
rule, in the context of a particularly glaring failure of counsel's duty
to investigate, that defendants have a constitutional right to provide
a factfinder with relevant mitigating evidence. Williams, 529 U.S. at
393; see also, e.g., Penry v. Lynaugh, 492 U.S. 302, 327-28 (1989).
Williams does require that counsel have some knowledge about
potential avenues of mitigation on behalf of a client in order to make
a decision that can be fairly characterized as a reasonable strategic
choice. This, however, has always been the rule under Strickland, and
the particular quantum of knowledge required depends on the facts
and circumstances of each particular case. See Strickland, 466 U.S.
at 691. Secondly, even if Williams did establish such a per se rule, it
would not have been "clearly established" within the meaning of
§ 2254, as the Williams case was decided more than a year after the
Maryland Court of Appeals' decision here. See Booth-El v. Nuth, No.
01-8, slip 7-8, ___ F.3d ___ (4th Cir. 2002). Finally, despite the dis-
trict court's contention to the contrary, we are of opinion that Wig-

15
gins' counsel made a reasonable strategic decision and neither
Williams, as it may apply here, nor any of Strickland's other progeny,
require a different conclusion.

Wiggins' sentencing counsel, Mr. Schlaich, did know about Wig-
gins' difficult childhood, as the district court acknowledged. Wiggins
v. Corcoran, 164 F. Supp. 2d at 559. During the evidentiary hearing
in the Maryland courts, Mr. Schlaich stated that he knew of some of
the details of Wiggins' childhood as they existed in the presentence
investigation report and social services records which he had seen. He
knew, for example, that Wiggins had been removed from his natural
mother as a result of a finding of neglect and abuse; that there were
reports of sexual abuse at one of his foster homes; that he had had his
hands burned as a child as a result of his mother's abuse; that there
had been homosexual overtures made toward him by a job corps
supervisor; and that he was borderline mentally retarded. So any
inference that his knowledge and investigation was merely casual or
offhand is simply not so. Although further investigation would have
developed more extensive details of Wiggins' childhood, the extant
records did inform Schlaich of a possible avenue of mitigation. The
district court concluded, however, that the knowledge Schlaich gained
through these reports put him on notice and required him to inquire
further. This was error. When considering claims of ineffectiveness,
"[w]e address not what is prudent or appropriate, but only what is
constitutionally compelled." Burger v. Kemp, 483 U.S. 776, 794
(1987) (quoting United States v. Chronic, 466 U.S. 648, 665, n. 38
(1984)). In this connection, the Supreme Court has indicated that
"strategic choices made after less than complete investigation are rea-
sonable precisely to the extent that reasonable professional judgments
support limitations on investigation." Burger v. Kemp, 483 U.S. at
794. The Maryland Court of Appeals determined that Schlaich's
knowledge of potential mitigation avenues was sufficient to make an
informed strategic choice. We think that the Maryland Court of
Appeals' decision in this regard was reasonable.

The attorneys viewed the case against Wiggins at the guilt phase
to be quite flimsy. Furthermore, because of the conflicting medical
testimony as to time of death, the lack of direct physical evidence
affirmatively placing Wiggins in Florence Lacs' apartment, and exis-
tence of other evidence, such as the Ryder hat found in Mrs. Lacs'

16
apartment, Schlaich "believed that [Wiggins'] best hope of escaping
the death penalty was for one or more of the jurors to entertain a rea-
sonable doubt as to," 724 A.2d at 15, whether Wiggins was the actual
killer. Add to that the stipulated fact of Wiggins' clear record. On the
other hand was Wiggins' social history. As stated above, Schlaich had
knowledge of some of Wiggins' social history from the presentence
investigation report and social services records and likely knew that
additional development would have resulted in more sordid details
surfacing. Nonetheless, Schlaich decided that social history evidence
was problematic in that it tended to conflict with any attack on princi-
palship: Counsel would present a picture to the jury of an innocent
man, notwithstanding his murder conviction, and then, to the same
factfinder, argue that if he was the principal, then the jury should be
lenient because of his difficult childhood. Schlaich was aided by the
fact that the guilt trial had not been before the jury, which was an
advantage, as the Maryland Court recognized. 724 A.2d at 16-17.
Alternative arguments are common in the law, but there is no author-
ity that requires that an attorney use them. Indeed, the choice between
arguments, limited, perhaps by the client's express wishes, seems to
be the very essence of counsel's function in any context. Cf. Jones v.
Barnes, 463 U.S. 745 (1983) (holding that defense counsel assigned
to prosecute appeal from criminal conviction does not have constitu-
tional duty to raise every nonfrivolous issue requested by defendant).

Finally, we note that there is nothing in Strickland or its progeny
to suggest that even if Schlaich had investigated further that he would
have been required to present the evidence thus developed in addition
to, or instead of his chosen strategy. On the contrary, the Supreme
Court has found it reasonable to rely on other strategies during capital
sentencing proceedings notwithstanding counsel's possession of other
mitigating evidence, especially where that evidence is equivocal. See
Burger v. Kemp, 483 U.S. at 792-3 (1987) (failure to put on unhappy
childhood evidence reasonable where helpfulness was in doubt); Dar-
den v. Wainwright, 477 U.S. 168, 186 (1986) (counsel's failure to put
on psychiatric mitigating evidence reasonable where such evidence
may have opened door to prosecution to rebut with evidence of capa-
bility to commit the crime charged). The Supreme Court has held that
counsel is not ineffective for failing to introduce evidence that would
have hurt as much as it helped. Darden, 477 U.S. at 186-7; see also
Howard v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc).

17
Indeed, whether a particular bit of evidence is mitigating is often "in
the eye of the beholder." Burger v. Kemp, 483 U.S. at 794 (citation
and internal quotation marks omitted). Likewise, in this case, not all
of the available social history evidence is unequivocally mitigating.
Here, the jury could just as easily have viewed Wiggins' childhood
and limited mental capacity as an indicator of future lawlessness. See,
e.g., Barnes v. Thompson, 58 F.3d 971, 980-1 (4th Cir. 1995) (failure
to introduce evidence of childhood abuse or mental impairment not
ineffective where counsel concluded evidence could have been used
by jury to make finding of future dangerousness).

As we have stated, "[t]rial counsel is too frequently placed in a no-
win situation with respect to possible mitigating evidence at the sen-
tencing phase of a capital case. The failure to put on such evidence,
or the presentation of evidence which then backfires, may equally
expose counsel to collateral charges of ineffectiveness. The best
course for a federal habeas court is to credit plausible strategic judg-
ments in the trial of a state case." Bunch v. Thompson, 949 F.2d 1354,
1364 (4th Cir. 1991). The district court failed to heed this admonition.
Schlaich stated that he chose to focus on one theory of Wiggins' case
at sentencing because the "shotgun approach" often confuses the
issues and works to the detriment of the defendant. In Schlaich's pro-
fessional judgment, then, avoidance of conflicting arguments sup-
ported limited investigation into social history. The Maryland Court
of Appeals found his judgment sound on the basis of the factual
record before it, and even if we were of opinion that the Maryland
Court's decision was in error, we cannot say that it was unreasonable.

We are of opinion that the Maryland Court of Appeals' decision
regarding Wiggins' ineffectiveness claim was reasonable.9 Therefore,
we reverse the district court's grant of Wiggins' petition on this
ground also.
____________________________________________________________
9
Because we find that the Maryland Court of Appeals' decision regard-
ing ineffectiveness was reasonable, we need not address the second
prong in the Strickland analysis.

18
 V.

The judgment of the district court is accordingly

REVERSED.

WILKINSON, Chief Judge, concurring:

I concur in the opinion of the court. Under the AEDPA standard
of review, and given the parameters of the Jackson and Strickland
claims themselves, our role is a circumscribed one. Judge Widener
has set forth the record evidence with admirable care, and I am satis-
fied that there is no basis in law or fact to overturn the judgment of
the Maryland state system.

My own view is that petitioner very probably committed the hei-
nous offense for which he stands convicted. But I cannot say with cer-
tainty that he did so.* However, it is for the Governor to determine
the extent to which the lack of total certitude should inform the exer-
cise of discretion under Md. Code Ann., Corr. Servs. § 7-601 and Md.
Const. art. II, § 20. To confuse the rule of law here with the role of
clemency would only do a disservice to both.

NIEMEYER, Circuit Judge, concurring:

The court's opinion in this case fully states the record evidence and
persuasively demonstrates why the State court did not act unreason-
ably in applying Jackson v. Virginia, 443 U.S. 307 (1979), to deny
Wiggins relief on his first claim. As an additional reason for reaching
this conclusion, I would note that from the condition of Florence
Lacs' apartment, a reasonable jury could find, beyond a reasonable
doubt, that whoever ransacked Florence Lacs' apartment and robbed
her also murdered her. Because the evidence convincingly points to
the fact that Wiggins robbed Lacs on April 15 and, within hours, was
using the products of this robbery, the jury could reasonably find that
____________________________________________________________
*In addition to the strong incriminating evidence, there are also the
unexplained items noted by Judge Widener — namely, the unidentified
fingerprints, baseball cap, fibers, and hairs. Further, the petitioner had no
prior record.

19
Wiggins also murdered Lacs. Wiggins' only explanation — that he
found Lacs' Chevrolet on September 16 with the keys, credit cards, and a
diamond ring in it — is belied by the fact that Wiggins is directly
linked to the car and the credit cards during the evening of September 15.

I find the question of whether the State court reasonably applied
Strickland v. Washington, 466 U.S. 668 (1984), to conclude that Wig-
gins received adequate assistance of counsel during the sentencing
phase of his trial to be a closer call. Both of my colleagues are satis-
fied that the decision not to introduce mitigating evidence was consis-
tent with a strategic decision made by Wiggins' counsel not to imply
any confession of guilt and to seek to have the jury hesitate on the
death sentence because of a hoped-for hesitation on liability. It
appears to me, however, that counsel could have had it both ways. He
could have insisted on arguing liability and still have maintained that
any sentence of death would be inconsistent with the mitigating cir-
cumstances of Wiggins' miserable upbringing and marginal intelli-
gence. But in the end, this may be only a luxury of hindsight. There
is support in the record from which to conclude that Wiggins' coun-
sel's decision was a tactical one and that it was not an unreasonable
strategy to pursue. With less confidence, therefore, I also concur in
the court's opinion that the State court reasonably concluded that
Wiggins was provided effective assistance of counsel during the sen-
tencing phase of his trial.

In short, because the State court's refusal to grant relief was neither
contrary to clearly established federal law, as determined by the
Supreme Court, nor involved an unreasonable application of that law,
see 28 U.S.C. § 2254(d)(1), I agree that Wiggins' petition should have
been denied by the district court. Therefore, I concur in the thorough
opinion prepared for the court by Judge Widener.

20