Reid v. True

Panel rehearing granted and rehearing
en banc denied by order filed 10/8/03.
 PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
JAMES EDWARD REID,
Petitioner-Appellant,

v. No. 02-27

PAGE TRUE, Warden, Sussex I State
Prison,
Respondent-Appellee.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
JAMES EDWARD REID,
Petitioner-Appellant,

v. No. 03-2

PAGE TRUE, Warden, Sussex I State
Prison,
Respondent-Appellee.
4444444444444444444444444444444444444444444444448

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-00-859-7)

Argued: May 8, 2003

Decided: August 26, 2003

Before WILKINS, Chief Judge, and GREGORY
and SHEDD, Circuit Judges.

____________________________________________________________

Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Gregory and Judge Shedd joined.

____________________________________________________________
 COUNSEL

ARGUED: Marie Frances Donnelly, MIDWEST CENTER FOR
JUSTICE, Evanston, Illinois, for Appellant. Katherine P. Baldwin,
Senior Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Clif-
ford L. Harrison, James C. Turk, Jr., STONE, HARRISON & TURK,
P.C., Radford, Virginia, for Appellant. Jerry W. Kilgore, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees.

____________________________________________________________

OPINION

WILKINS, Chief Judge:

James Edward Reid appeals a district court order denying his peti-
tion for a writ of habeas corpus, see 28 U.S.C.A. § 2254 (West 1994
& Supp. 2003), in which he challenged his conviction and death sen-
tence for the murder of 80-year-old Annie Lester.1 For the reasons set
forth below, we affirm the rejection of Reid's claims by the district
court.

I.

Lester's body was discovered on October 12, 1996. She had been
brutally murdered; an autopsy revealed that Lester had suffered 22
stab wounds. Lester had also been beaten about her head with a blunt
instrument, and a bone in her throat had been crushed by strangulation
or being struck with a hard object. A trail of blood led from Lester's
kitchen to her bedroom, where her body was found. Lester's clothing
was in disarray, and the room had been ransacked. A bottle of wine
was found on the floor at the foot of the bed.

Substantial evidence connected Reid to the murder. Reid was
acquainted with Lester and had received an automobile ride to her
____________________________________________________________
1
Reid named Page True, Warden of Sussex I state prison, as Respon-
dent. We refer to Respondent as "the State."

2
house in the mid-morning of the day of the murder; on the way, he
purchased a bottle of wine. Late in the afternoon, Reid was observed
walking from the direction of Lester's house, drunk and covered in
blood. The blood on Reid's clothing was later determined to be con-
sistent with Lester's DNA. Reid's fingerprints were found in blood on
the telephone in Lester's bedroom, his saliva was found on a cigarette
butt left in the room, and his handwriting was found on pieces of
paper in the house.

Reid, who claimed to have no memory of Lester's murder, subse-
quently entered an Alford plea to one count each of capital murder,
attempted rape, and attempted robbery. See North Carolina v. Alford,
400 U.S. 25, 37 (1970) (holding that a defendant may plead guilty
"even if he is unwilling or unable to admit his participation in the acts
constituting the crime"). After a sentencing hearing, the trial judge
imposed the death penalty, finding that the murder satisfied the vile-
ness predicate of Virginia law. See Va. Code Ann. § 19.2-264.2
(Michie 2000) (permitting imposition of the death penalty if the court
determines that the defendant's conduct in committing the murder
"was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind or an aggravated battery to the
victim").

On direct appeal, Reid claimed that the trial court failed to consider
uncontradicted mitigating evidence in reaching its sentencing deter-
mination. The Virginia Supreme Court characterized this argument as
a "complaint that the trial court must not have considered [Reid's]
mitigating evidence since the court imposed the death penalty" and
rejected it, concluding that "the trial court did, in fact, consider Reid's
mitigating evidence." Reid v. Commonwealth, 506 S.E.2d 787, 792
(Va. 1998). The United States Supreme Court thereafter denied
Reid's petition for a writ of certiorari. See Reid v. Virginia, 528 U.S.
833 (1999).

Reid subsequently sought habeas relief in the Virginia Supreme
Court, contending, as is relevant here, that his guilty plea was not
knowing and voluntary and that counsel were constitutionally ineffec-
tive for advising him to enter an Alford plea. The Virginia Supreme
Court denied relief, ruling that the first claim was defaulted and that
the second was without merit.

3
 Reid filed this federal habeas petition on November 6, 2000, claim-
ing that counsel were constitutionally deficient for advising him to
enter an Alford plea, that his Alford plea was not knowing and volun-
tary, and that the trial court failed to consider mitigating evidence.
The district court denied Reid's motions for discovery and to expand
the record but conducted an evidentiary hearing to determine "what
Reid's trial counsel told him about the effect of his Alford pleas" and
"Reid's understanding about the effect of his Alford pleas." J.A. 379.
Following the hearing, the district court denied the petition, conclud-
ing that Reid's claims regarding counsel's ineffectiveness and the vol-
untariness of his plea were without merit and that Reid's claim
regarding consideration of mitigating evidence by the trial court was
procedurally defaulted.

II.

Under the provisions of the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, an
individual cannot appeal a denial of collateral relief without first
obtaining a certificate of appealability (COA). See generally 28
U.S.C.A. § 2253(c) (West Supp. 2003). A COA "may issue . . . only
if the applicant has made a substantial showing of the denial of a con-
stitutional right" and must specify the issue or issues as to which the
COA has been granted. Id. § 2253(c)(2); see id. § 2253(c)(3).
Prior to oral argument, we granted a COA as to all issues. Thus,
the question of whether to issue a COA in this case is no longer
before us. We nevertheless take this opportunity to explain procedures
we have recently adopted for deciding when to certify issues for
appeal in collateral review cases. These procedures were initially
found in Standing Order 03-01, which this court adopted on May 9,
2003. On July 8, this order became new Local Rule 22(a). A copy of
the new rule is appended to this opinion.

A. Provisions of the New Rule

Local Rule 22(a) divides appeals in collateral review cases into
three categories. The first category includes all cases in which the
appellant expressly requests a COA—or expansion of a COA, if the
district court has already certified some issues for review—before this

4
court enters its briefing order. In such cases, the court will review the
request and (a) grant a COA and direct the parties to file briefs
addressing the issues certified for review or (b) deny a COA and
either dismiss the appeal—if the district court did not grant a COA—
or direct the parties to file briefs regarding the issues certified by the
district court (if the district court granted a COA).2 See 4th Cir. R.
22(a)(1)(A), (2)(A).

The second category consists of cases in which the district court
did not issue a COA and the appellant has not explicitly requested one
from this court. In such cases, the notice of appeal will be treated as
a request for a COA. See Fed. R. App. P. 22(b)(2). To guide its
inquiry into whether to grant a COA, the court will enter a prelimi-
nary briefing order directing the appellant to file a brief addressing
the merits of the claims the appellant wishes to raise. The court will
then review that brief and determine whether to grant a COA as to
any of the issues raised in the brief. Upon determining that the appel-
lant has made the showing required by § 2253(c) as to any issue, the
court will grant a COA as to that issue and enter a final briefing order
directing the parties to complete the briefing process. If the appellant
fails to make the required showing, the court will deny a COA and
dismiss the appeal. See 4th Cir. R. 22(a)(1)(B).

The third category created by the new rule includes cases in which
the district court granted a COA as to some issues and, as of the time
for entering a briefing order, the appellant has not requested that the
COA be expanded by this court. In such cases, the court will enter a
standard briefing order directing the parties to brief the issues certi-
____________________________________________________________
2
The rule does not require the district court to rule on a request for a
COA prior to our consideration of a request. Although such rulings are
helpful to this court, we have opted (for the present, at least) not to com-
pel the participation of the district court in the COA process.

The rule also does not address the question of whether this court must
examine a COA issued by the district court to ensure that the appellant
has made the showing required by § 2253(c). The question of whether
such review is appropriate has divided other circuits. Compare United
States v. Cepero, 224 F.3d 256, 261-62, 267-68 (3d Cir. 2000) (en banc)
(requiring review of district court COA), with, e.g., Ramunno v. United
States, 264 F.3d 723, 725 (7th Cir. 2001) (declining to follow Cepero).

5
fied for review by the district court. The appellant may raise addi-
tional claims in his opening brief, but the court will not consider them
unless the appellant files a separate statement noting that the brief
contains claims beyond the scope of the COA issued by the district
court. The statement need not be elaborate or contain any reasoning;
its sole purpose is to notify this court of the appellant's desire to
expand the COA. Upon receipt of such a statement, the court will stay
further briefing and decide whether to expand the COA. Once the
court makes its decision, it will lift the stay and allow the parties to
complete the briefing process (as to all issues certified for review by
either this court or the district court). See 4th Cir. R. 22(a)(2)(B).

Regardless of the category into which a case falls, matters concern-
ing the grant or expansion of a COA will be referred to a three-judge
panel. See 4th Cir. R. 22(a)(3). The panel will review the request to
determine whether the appellant has made the showing required by
§ 2253(c) but will not consider the ultimate question of whether the
claim has merit. If any member of the panel determines that the appel-
lant has made the requisite showing as to any issue, the court will
grant a COA as to that issue. See id.

Finally, the rule authorizes the court to request additional materials
from any party. See 4th Cir. R. 22(a)(4). The rule is silent on the ques-
tion of whether the court may accept unsolicited materials;3 in light
of this silence, we conclude that the rule neither expands nor impairs
the discretion that the panel would otherwise possess.

B. Reasons for Adopting the New Rule

The primary impetus for the adoption of Rule 22(a) was the recent
decision of the Supreme Court in Miller-El v. Cockrell, 123 S. Ct.
1029 (2003). The petitioner in Miller-El was a state prisoner seeking
relief under § 2254. See id. at 1036. The district court denied the pris-
oner's application and denied a COA, see id., and the court of appeals
likewise denied a COA, stating that "`the state court's adjudication
neither resulted in a decision that was unreasonable in light of the evi-
____________________________________________________________
3
The commentary notes that the appellant may file an express request
for a COA along with the opening brief. See 4th Cir. R. 22(a)(1)(B),
note.

6
dence presented nor resulted in a decision contrary to clearly estab-
lished federal law as determined by the Supreme Court,'" id. (quoting
Miller-El v. Johnson, 261 F.3d 445, 452 (5th Cir. 2001)). The
Supreme Court reversed, concluding that the court of appeals improp-
erly conducted a full inquiry into the merits before deciding whether
to grant a COA. See id. at 1042. The Court held that § 2253(c) per-
mits only "a general assessment of the[ ] merits" of the claims in a
habeas petition and admonished that "[w]hen a court of appeals side
steps this process by first deciding the merits of an appeal, and then
justifying its denial of a COA based on its adjudication of the actual
merits, it is in essence deciding an appeal without jurisdiction." Id. at
1039.

Prior to Miller-El, we did not have a mechanism for separating the
COA determination from the decision on the merits, and it was our
custom to undertake both inquiries simultaneously, after the case was
fully briefed. This practice did not prejudice appellants; on the con-
trary, it is likely that we afforded full review in many appeals that
should have been dismissed for failure to satisfy the threshold require-
ments of § 2253(c). Nonetheless, the practice was not in strict compli-
ance with the statute. See In re Fowlkes, 326 F.3d 542, 546 (4th Cir.
2003).

The new local rule brings our practice into conformity with
§ 2253(c). Under the rule, we will conduct the COA inquiry before
completing the briefing process and deciding the case on its merits.
This remains true even though, in cases falling into the second and
third categories described above, our decision respecting a COA will
be informed by our review of the appellant's brief on the merits,
rather than a separate request for a COA. In examining these briefs
at the COA stage, we will not engage in "full consideration of the fac-
tual or legal bases adduced in support of the claims," Miller-El, 123
S. Ct. at 1039, but will instead conduct the cursory review necessary
to identify "those appeals deserving of attention" while dismissing
claims that "plainly do not" deserve further review, id. at 1040.

This procedure advances the goals of the AEDPA more effectively
than either requiring a separate request for a COA or acting without
any request other than the notice of appeal. The purpose of the
AEDPA was "to reduce delays in the execution of state and federal

7
criminal sentences, particularly in capital cases." Woodford v. Gar-
ceau, 123 S. Ct. 1398, 1401 (2003). Requiring a separate request for
a COA before ordering briefing would add delay to habeas litigation.
Moreover, such delays would not be offset by the benefit of clearer
guidance for our COA inquiry; in our experience, few appellants file
separate requests for a COA, and those who do generally rely on their
briefs with little or no embellishment.4 And, while we could examine
the record ourselves without any indication of what claims the appel-
lant desires to present to us, doing so would add to our own burdens
and would not give effect to the requirement that "the applicant
[make] a substantial showing of the denial of a constitutional right."
28 U.S.C.A. § 2253(c)(2) (emphasis added). For these reasons, we
have adopted the rule described above, which allows us to use a sin-
gle document as both the appellant's request for a COA and the appel-
lant's brief on the merits, even as we maintain a clear distinction
between the COA and merits phases of the appeal.

III.

We first consider Reid's claim that his Alford plea was invalid due
to the ineffectiveness of defense counsel. Reid maintains that counsel
were ineffective for (1) failing to investigate and advise Reid concern-
ing a defense of voluntary intoxication; (2) failing to investigate and
advise Reid regarding a defense of insanity; and (3) failing to advise
Reid concerning the nature and consequences of an Alford plea.
In order to establish that his constitutional right to the effective
assistance of counsel was violated, Reid must make a twofold show-
ing. See Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). First, he
must demonstrate that his attorneys' "representation fell below an
objective standard of reasonableness." Strickland v. Washington, 466
____________________________________________________________
4
Our prior practice of ordering full briefing before deciding whether to
grant a COA may have encouraged parties to rely on their briefs to sup-
port their requests for a COA. We believe, however, that neither Miller-
El nor our rule increases the incentive for an appellant to augment his
brief with additional arguments in support of certification; thus, we may
infer from the lack of such arguments in the past that, were we to require
a separate request for a COA, we would see substantially identical argu-
ments at the COA stage and the briefing stage.

8
U.S. 668, 688 (1984). "Judicial scrutiny of counsel's performance
must be highly deferential," and "every effort [must] be made to elim-
inate the distorting effects of hindsight . . . and to evaluate the [chal-
lenged] conduct from counsel's perspective at the time." Id. at 689.

Reid must also demonstrate that he was prejudiced by his attor-
neys' ineffectiveness, i.e., "that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. In the context of a guilty plea,
a demonstration of prejudice requires Reid to establish "that there is
a reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial." Hill
v. Lockhart, 474 U.S. 52, 59 (1985). In Hill, the Supreme Court
explained that this prejudice inquiry is quite similar to the inquiry for
prejudice under Strickland, in that the question of whether counsel's
ineffectiveness prejudiced a petitioner's guilty plea will often turn on
an assessment of the likelihood of success of a particular investigation
or strategy. See id. at 59.

A. Standard of Review

Because this claim was adjudicated on the merits by the Virginia
Supreme Court, our review is limited to determining whether the
decision of that court "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court." 28 U.S.C.A. § 2254(d)(1).5 As is particularly rele-
vant here, a state court decision is "contrary to" Supreme Court prece-
dent in either of two situations: (1) when "the state court applies a rule
that contradicts the governing law set forth in [Supreme Court]
____________________________________________________________
5
Reid argues that this standard does not apply because the district court
held an evidentiary hearing. In support of this proposition, he relies on
Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998), in which the
Tenth Circuit held that a federal habeas court need not defer to the fac-
tual findings of the state court if those findings were made without bene-
fit of a hearing. Even assuming that Miller is correct, but see Valdez v.
Cockrell, 274 F.3d 941, 950-51 (5th Cir. 2001), cert. denied, 123 S. Ct.
106 (2002), that rule does not apply here, because there were no state
court factual findings at all with respect to Reid's ineffective assistance
claim.

9
cases," or (2) when "the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [the Court's] prece-
dent." Williams v. Taylor (Williams II), 529 U.S. 362, 405-06 (2000).

Reid maintains that the decision of the Virginia Supreme Court on
his ineffective assistance claim was contrary to Supreme Court prece-
dent because it must be presumed that the state court applied its ruling
in Williams v. Warden (Williams I), 487 S.E.2d 194 (Va. 1997). In
Williams I, the Virginia Supreme Court held that a habeas petitioner
cannot prevail on an ineffective assistance claim simply by making
the showing required under Strickland; rather, the court held that the
petitioner must additionally demonstrate that "`the result of the pro-
ceeding was fundamentally unfair or unreliable.'" Williams I, 487
S.E.2d at 198 (quoting Lockhart v. Fretwell, 506 U.S. 364, 369
(1993)). The Supreme Court subsequently declared that this standard
was contrary to the clearly established law of Strickland. See Williams
II, 529 U.S. at 393-95, 397; id. at 413 (opinion of O'Connor, J.)
("[T]he Virginia Supreme Court's decision was contrary to . . . clearly
established federal law to the extent it held that our decision in [Lock-
hart] somehow modified or supplanted the rule set forth in Strick-
land.").

As noted above, the Virginia Supreme Court rejected Reid's inef-
fective assistance claim summarily, without providing any reasoning
for the decision. Reid maintains that because this decision was made
after the Virginia Supreme Court decided Williams I, but before the
United States Supreme Court decided Williams II, it must be pre-
sumed that the state court applied an incorrect standard.

It is not at all clear that this is a tenable assumption. During the
interim between Williams I and Williams II, the Virginia Supreme
Court decided at least two published opinions regarding claims of
ineffective assistance without referring to Lockhart. See Moore v.
Hinkle, 527 S.E.2d 419, 423, 425-26 (Va. 2000); see also Curo v.
Becker, 493 S.E.2d 368, 370-71 (Va. 1997) (not mentioning Lockhart
when setting forth standard for ineffective assistance claim). But see
Pender v. Angelone, 514 S.E.2d 756, 757 (Va. 1999) (citing Lockhart
for the proposition that "[t]he [Strickland] prejudice analysis includes

10
a focus on whether the result of the proceeding was fundamentally
unfair or unreliable" (internal quotation marks omitted)).

In any event, Reid's position cannot be squared with the way this
court applies the § 2254(d)(1) standard when the state court has not
articulated the rationale for its decision. "In such cases, we conduct
an independent examination of the record and the clearly established
Supreme Court law, but we must still confine our review to whether
the court's determination resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law . . . ." Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en
banc) (citations & internal quotation marks omitted). In other words,
when the state court does not articulate a rationale for its decision, our
analysis focuses solely on the result reached, and application of the
"contrary to" prong is necessarily limited to determining whether the
state court decision is contrary to a decision reached by the Supreme
Court on indistinguishable facts. Cf. Early v. Packer, 123 S. Ct. 362,
365 (2002) (holding that failure to cite federal law does not mean that
state court decision was contrary to established federal law; state
court need not even be aware of Supreme Court precedents, "so long
as neither the reasoning nor the result of the state-court decision con-
tradicts them"). Reid does not contend that the state court rejection of
his ineffective assistance claim is "contrary to" Supreme Court prece-
dent in this way. Accordingly, we turn to the question of whether the
denial of relief by the state court on this claim is consistent with a rea-
sonable application of Supreme Court precedent.

B. Merits
1. Voluntary Intoxication

Reid first contends that counsel failed to adequately investigate,
consider, and advise him concerning a defense of voluntary intoxica-
tion. Under Virginia law, voluntary intoxication does not excuse any
crime. See Wright v. Commonwealth, 363 S.E.2d 711, 712 (Va. 1988).
"However, when a person voluntarily becomes so intoxicated that he
is incapable of deliberation or premeditation, he cannot commit a
class of murder that requires proof of a deliberate and premeditated
killing." Id. In determining whether the evidence supports a voluntary
intoxication defense, Virginia courts look to the defendant's behavior

11
before and after the offense. See, e.g., Giarratano v. Commonwealth,
266 S.E.2d 94, 99 (Va. 1980). Relevant behaviors include attempts to
conceal the crime, see id. at 100 (noting that defendant killed second
person in order to conceal first murder); a lapse of time between
ingestion of intoxicants and the crime, see Hedrick v. Warden, 570
S.E.2d 840, 851 (Va. 2002); whether the conduct of the defendant
was "planned and purposeful," id.; and whether the defendant was
able to engage in complex behaviors such as operating an automobile,
see Lilly v. Commonwealth, 499 S.E.2d 522, 536 (Va. 1998), rev'd on
other grounds, 527 U.S. 116 (1999).

Reid correctly points out that some of these factors support a claim
of voluntary intoxication in his case. For example, Reid's consump-
tion of alcohol was contemporaneous with the crime. According to
Reid's recollection of events, while visiting with Lester he periodi-
cally went outside to smoke, and while outside he drank from the bot-
tle of wine he purchased on the way to Lester's home. And, the bottle
was found near Lester's body. Additionally, Reid made no attempt to
conceal the fact that he had been involved in some kind of violent
incident. He emerged from Lester's house covered in blood, stagger-
ing and obviously drunk.6 He approached George Eanes and Eanes'
father,7 who were complete strangers to him, and asked for a ride to
his house. Such behavior arguably indicates that Reid was so intoxi-
cated as to be unaware of what had happened in Lester's home, a
finding that would, in turn, support a determination that Reid had
been too drunk to premeditate or act deliberately.8
Two experts who examined Reid (and who later testified during the
sentencing phase) provided reports to counsel indicating that Reid
may have been too intoxicated to form the necessary intent to commit
premeditated murder. Doctor Pogos Voskanian concluded that Reid's
history of brain injury,9 combined with various other ailments suf-
____________________________________________________________
6
Various witnesses reported that Reid was obviously drunk for many
hours after the murder.
7
Eanes and his father operated a body shop near Lester's home.
8
In considering whether Reid was aware of what had gone on in Les-
ter's home, however, a factfinder would also have to consider Reid's
statement to Eanes' father that he had been in a fight over drugs.
9
Reid was involved in a serious automobile accident in 1968. He suf-
fered a major head trauma and was in a coma for at least five days (some

12
fered by Reid and "exacerbated by an acutely intoxicated state[,] is
likely to have a devastating effect on one's judgment, appreciation of
reality, ability to resist impulses, ability to form rational decisions and
perform intentional acts." J.A. 72. More specifically, Dr. Voskanian
asserted that "Reid's functioning and ability to act intentionally at the
time of the alleged offense[ were] markedly impaired" and that
"Reid's capacity to form an intent for a criminal act was substantially
compromised." Id. at 72-73. Doctor Stephen Herrick reached a similar
conclusion, stating that Reid's "behavior following the crime would
suggest[ ] he did not understand the nature, character, or conse-
quences of the alleged offense" and that "[i]n general the description
of his behavior suggests extreme cognitive impairment." Id. at 104.

On the other hand, there is strong evidence that Reid was capable
of planned and purposeful conduct. Forensic evidence indicated that
Reid first bludgeoned Lester with a milk can in the kitchen. He then
dragged her to the bedroom, where he stabbed her with a pair of sew-
ing scissors (which he apparently obtained from the living room) and
strangled her with the cord of a heating pad. Reid's selection of three
different weapons indicates a capacity for coherent, deliberative
____________________________________________________________
medical records state that the coma lasted two weeks). The accident and
coma marked the onset of a seizure disorder that has plagued Reid
throughout his adult life. Although he can take Dilantin to control the
seizures, he often fails to take his medication. The coma caused signifi-
cant brain damage, and the subsequent seizures have exacerbated the
effects of this injury.

In addition to the head trauma and seizures, Reid's mental functioning
is also affected by his lengthy history of alcoholism. By the same token,
Reid's brain damage affects his behavior as an alcoholic. Both experts
determined that Reid was a binge drinker: he would be sober most of the
time, but would go on a drinking spree at the beginning of each month
when he received his disability check. Because Reid did not drink alco-
hol on a daily basis, he did not develop a tolerance for it the way most
alcoholics do. Additionally, the damage to Reid's brain heightens the
effect of alcohol on his perception. The net result is that Reid becomes
substantially more impaired than does an average person who has con-
sumed the same amount of alcohol. Family members supported this the-
ory, stating that Reid would become noticeably intoxicated from a single
beer.

13
thought that is inconsistent with a voluntary intoxication defense.
Also, Reid wrote "I've gotta kill you" on a card while he was in Les-
ter's house. J.A. 616 (internal quotation marks omitted). Reid appar-
ently told the probation officer who wrote his presentence report that
his last memory from Lester's house was of writing something on the
card.10

According to affidavits submitted by trial counsel, several strategic
considerations played into the decision not to pursue a voluntary
intoxication defense. First, counsel's experience indicated to them
that a jury would not be receptive to such a defense. And, after con-
sultation with others experienced in capital litigation, counsel deter-
mined that Reid should avoid a jury if at all possible because, given
the facts of the crime, a jury was likely not to be favorable to Reid.
Since the prosecutor indicated that he would refuse to waive a jury
trial if Reid pleaded not guilty, the only way to accomplish this goal
was to enter some form of guilty plea. And, the judge to whom Reid's
case was assigned had previously imposed a life sentence in a capital
murder prosecution that involved facts that were, in counsel's view,
more egregious than those here.

In short, the evidence to support a voluntary intoxication defense
was, at best, conflicting, and sound strategic considerations weighed
against presenting such a defense. In view of these circumstances, it
was not unreasonable for the Virginia Supreme Court to conclude that
counsel were not ineffective for advising against a defense of volun-
tary intoxication.
____________________________________________________________
10
Other evidence of premeditation and deliberation was not as strong.
For example, approximately one week before the murder, Reid stated
that he wanted to kill all the African American women in Christiansburg.
While this statement alone indicates premeditation of the murder of Les-
ter, who was African American, other evidence indicated that Reid com-
monly made such statements when drunk and that he did not remember
them when sober.

Additionally, the State maintains that the fact that Reid smoked ciga-
rettes and made telephone calls while in Lester's house shows premedita-
tion. This assertion rests largely on the State's contention that Reid
paused during the murder to perform these acts; however, there is no evi-
dence to support the State's theory.

14
 2. Insanity

Reid next contends that counsel failed to adequately investigate
and advise him regarding an insanity defense. "Virginia law recog-
nizes two tests by which an accused can establish criminal insanity,
the M'Naghten Rule and the irresistible impulse doctrine." Bennett v.
Commonwealth, 511 S.E.2d 439, 446 (Va. Ct. App. 1999). In either
case, the defendant bears the burden of proving that he was insane at
the time of the offense. See Vann v. Commonwealth, 544 S.E.2d 879,
882-83 (Va. Ct. App. 2001). "When the corpus delicti has been estab-
lished and proof adduced that the accused committed the act, it is not
sufficient for the accused to raise a reasonable doubt as to his sanity;
he must go one step further and prove to the satisfaction of the jury
that he was insane at the time of the commission of the act." Wessells
v. Commonwealth, 180 S.E. 419, 422 (Va. 1935).

The M'Naghten Rule requires the defendant to prove that, because
of a disease of the mind, he either did not know the nature and quality
of his act or did not know that the act was wrong. See Price v. Com-
monwealth, 323 S.E.2d 106, 108-09 (Va. 1984); see also id. at 110
(noting that "the actual M'Naghten test for insanity, stated in the dis-
junctive, is the rule in Virginia" (emphasis added)). As the Virginia
Supreme Court explained in Price,

The first portion of M'Naghten relates to an accused who is
psychotic to an extreme degree. It assumes an accused who,
because of mental disease, did not know the nature and
quality of his act; he simply did not know what he was
doing. For example, in crushing the skull of a human being
with an iron bar, he believed that he was smashing a glass
jar. The latter portion of M'Naghten relates to an accused
who knew the nature and quality of his act. He knew what
he was doing; he knew that he was crushing the skull of a
human being with an iron bar. However, because of mental
disease, he did not know that what he was doing was wrong.
He believed, for example, that he was carrying out a com-
mand from God.
Id. at 110 (internal quotation marks omitted).

15
 "The irresistible impulse defense is available when the accused's
mind has become so impaired by disease that he is totally deprived
of the mental power to control or restrain his act." Bennett, 511
S.E.2d at 447 (internal quotation marks omitted). Impulsivity is the
essence of this definition of insanity; planning or deliberative conduct
is inconsistent with the defense. See Vann, 544 S.E.2d at 883.
Reid argues that the reports of Drs. Herrick and Voskanian should
have alerted counsel to the viability of an insanity defense. We dis-
agree. It is true, as Reid notes, that both doctors concluded that Reid
suffered from a mental defect in the form of brain damage stemming
from the automobile accident and ensuing coma in 1968 and the sei-
zure disorder. However, neither doctor reached conclusions that
would support a finding of insanity under the M'Naghten Rule or the
irresistible impulse test. In fact, Dr. Herrick concluded that, while
Reid's "behavior following the crime . . . suggested he did not under-
stand the nature, character, or consequences of the alleged offense,"
J.A. 104, Reid's inability to remember the offense and the lack of an
eyewitness resulted in "insufficient evidence" to support a conclusion
that Reid was legally insane at the time of the murder, Supp. App. to
State's Br. at 51. Likewise, neither doctor concluded that Reid had
totally lost the ability to control his actions, as required by the irresist-
ible impulse test. They merely opined that his ability to do so was
impaired. While such impairment is a mitigating factor for sentenc-
ing, it does not establish the existence of insanity under Virginia law.

3. Nature of an Alford Plea

Finally, Reid contends that counsel were constitutionally ineffec-
tive for failing to ensure that he understood the nature of an Alford
plea.11 The district court held a hearing on this portion of the ineffec-
____________________________________________________________
11
In connection with this claim, Reid argues that one of his attorneys
misrepresented his experience with capital cases and was in fact not
qualified to serve as lead counsel in a capital case. Even accepting Reid's
allegations as true, the fact remains that, for the reasons explained in the
text, counsel were not constitutionally defective.

Reid offered additional evidence of counsel's ineffectiveness in a
motion to vacate the judgment pursuant to Federal Rule of Civil Proce-

16
tive assistance claim. During the hearing, Reid testified that trial
counsel urged him to make the Alford plea, telling him that the worst
sentence he could receive under such a plea would be life without
parole and that he might even be eligible for "geriatric parole." J.A.
395. Reid further asserted that counsel failed to explain to him that
an Alford plea was a guilty plea and that counsel told him he would
be ineligible for the death penalty under such a plea. This testimony
was contradicted by one of Reid's attorneys,12 who testified that he
and his co-counsel explained the nature of an Alford plea to Reid and
members of his family.13
____________________________________________________________

dure 60(b), filed on the day he filed a notice of appeal from the ruling
of the district court. The new evidence consisted of an order of the disci-
plinary board of the Virginia state bar directing the attorney to change
his status to "disabled." This ruling was based, in part, on misrepresenta-
tions by the attorney that were related to Reid's case. The district court
denied the motion to vacate, Reid appealed, and that appeal was consoli-
dated with this proceeding.

It is not clear whether Reid's motion was a proper Rule 60(b) motion
or, rather, should have been treated as an application for leave, pursuant
to 28 U.S.C.A. § 2244(b) (West Supp. 2003), to file a second or succes-
sive habeas application. See United States v. Winestock, ___ F.3d ___,
2003 WL 1949822, at *6 & n.6 (4th Cir. Apr. 25, 2003). Regardless of
how the motion is construed, however, Reid is not entitled to relief.
12
Reid's other attorney did not testify at the hearing.
13
Reid contends that counsel's testimony could not possibly be true
because counsel himself did not understand the nature of an Alford plea.
In support of this contention, Reid points to the fact that following the
prosecution's presentation of evidence, counsel moved to strike the rob-
bery charge on the basis that it was not supported by sufficient evidence.
Reid argues that counsel should have known that the motion was
improper because the trial court had already accepted Reid's guilty plea
to the robbery charge. Counsel testified, however, that he made the
motion because he felt there was nothing to lose by doing so. Addition-
ally, it is worth noting that the impropriety of the motion was not imme-
diately apparent to the trial court. See Transcript, Dec. 4, 1997, at 219
(responding to prosecution's objection to motion to strike, "Well, I think
they can still make a motion and the Court will rule on that motion. . . .").

17
 The attorney's testimony was corroborated by a letter written by
the attorney and signed by Reid shortly before his plea. In pertinent
part, the letter stated:

We have . . . advised you that you have a right to enter
a plea of not guilty, guilty, no contest or enter [an] Alford
plea. . . . [Y]ou understand by pleading guilty, no contest or
Alford plea you may lose significant rights to appeal and
your right to a jury trial. . . .

We have all fully discussed how to proceed with this case
and [we] have advised you we believe it is best to enter an
Alford Plea wherein you do not admit guilt but concede the
Commonwealth has enough evidence against you for a con-
viction.

We are therefore going to enter an Alford plea and pres-
ent evidence on your behalf in mitigation of the offenses to
hopefully avoid a death sentence.

Supp. App. to State's Br. 65-66. Moreover, during his plea colloquy
Reid informed the judge that he understood the charges against him
and his plea options and that he had "decided for [him]self" to enter
an Alford plea. Id. at 3. Reid also responded affirmatively to the ques-
tion of whether he understood that he could receive the death penalty.

Based on the foregoing evidence, the district court found that
Reid's counsel had adequately explained to him the nature of an
Alford plea and its consequences, and the court discredited Reid's
contrary testimony. These findings are not clearly erroneous. And, in
light of these findings, this aspect of Reid's challenge to counsel's
effectiveness must fail.

IV.

Reid next contends that because he did not understand what an
Alford plea was or that he could face the death penalty under such a
plea, his plea was not knowing and voluntary. Reid faults the trial
court for failing to inquire adequately into whether Reid understood

18
the charges against him and for not assessing the impact of Reid's
mental deficiencies on his competence to plead guilty. Reid presented
this claim for the first time in his state habeas petition, and the Vir-
ginia Supreme Court concluded that the claim was defaulted under the
rule of Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding
that claims not properly raised on direct appeal will not be considered
as a basis for collateral relief).

Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review a constitutional claim when a state court
has declined to consider its merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). Reid maintains that Slayton is not an "adequate" state
procedural rule, and thus cannot serve as a basis for a procedural
default. Alternatively, Reid argues that he has established cause and
prejudice or a miscarriage of justice, such that the default must be
excused and the merits of his claim considered.

A. Adequacy of Slayton

A state procedural rule is adequate if it is consistently or regularly
applied. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Con-
sistent or regular application of a state rule of procedural default
"does not mean undeviating adherence to such rule admitting of no
exception." Meadows v. Legursky, 904 F.2d 903, 907 (4th Cir. 1990)
(en banc). Rather, "despite some deviations, a general rule[ ] that
ha[s] been applied in the vast majority of cases" must be considered
adequate. Plath v. Moore, 130 F.3d 595, 602 (4th Cir. 1997) (internal
quotation marks omitted). In assessing whether a state has consis-
tently applied a procedural rule, we consider only those instances in
which the state advanced the procedural rule as a basis for a decision
adverse to the petitioner, because we cannot say that a state court
inconsistently applied a procedural rule that was not presented for its
consideration. See Meadows, 904 F.2d at 907. Furthermore, we neces-
sarily look only to the period prior to the time the defendant violated
the state procedural rule; decisions applying or declining to apply a
state rule after that time are irrelevant in determining whether the rule
was consistently applied at the critical time. See id. at 907 & n.3.

We have previously determined that Slayton is an adequate state
procedural rule, see Wright v. Angelone, 151 F.3d 151, 159-60 (4th

19
Cir. 1998), and we are not at liberty to revisit that ruling, see
Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993).
Even if we possessed the authority to reconsider the adequacy of the
Slayton rule, we would reject Reid's argument.

Reid offers three cases in support of his claim that the Slayton rule
is not regularly or consistently applied. See Walton v. Angelone, 321
F.3d 442 (4th Cir.), cert. denied, 123 S. Ct. 2626 (2003); Chapman
v. Angelone, 187 F.3d 628, 1999 WL 511062 (4th Cir. 1999) (per
curiam) (unpublished table decision); Gardner v. Warden, 281 S.E.2d
876 (Va. 1981). As Reid notes, all of these cases involved claims that
a guilty plea was not knowing and voluntary, and in none of them did
the Virginia Supreme Court bar the claim under Slayton. Neverthe-
less, these cases do not establish the inadequacy of Slayton. In Wal-
ton, the challenge to the guilty plea was defaulted on the basis of the
procedural rule found in Anderson v. Warden, 281 S.E.2d 885, 888
(Va. 1981) (holding that a defendant is bound by representations
made during a guilty plea absent a valid reason for controverting
those statements). See Walton, 321 F.3d at 451 & n.6. We are aware
of no requirement that a state court identify every potential basis for
a procedural default, and Reid does not claim such a requirement
exists. Moreover, there is no logical reason why the Virginia Supreme
Court would need to invoke the Slayton bar to a claim ruled barred
by the more specific rule in Anderson.
In Chapman, the state asserted that the petitioner's challenge to his
guilty plea was defaulted under Anderson, and the Virginia Supreme
Court dismissed an ineffective assistance of counsel claim on the
basis of Anderson. See Chapman, 1999 WL 511062, at *2. However,
the court did not rule at all, either procedurally or on the merits, on
the petitioner's related claim that his guilty plea was not involuntary
due to counsel's ineffectiveness. See id. Chapman thus does not help
Reid.

In Gardner, the Virginia Supreme Court did not default a challenge
to a guilty plea on the basis of Anderson, and in fact considered the
merits of the claim on habeas review. Even so, this case does not pro-
vide the support that Reid needs to establish the inadequacy of Slay-
ton. There is no indication anywhere in Gardner that the State
asserted the Slayton bar. Therefore, it goes too far to read Gardner as

20
rejecting application of Slayton. Even if this were a supportable read-
ing of Gardner, a single failure to apply Slayton would not establish
the inadequacy of the rule. See Plath, 130 F.3d at 602.

B. Cause and Prejudice/Miscarriage of Justice

Reid may demonstrate cause by showing "that some objective fac-
tor external to the defense impeded counsel's efforts to comply with
the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488
(1986). Constitutionally deficient performance of appointed counsel
is such a factor, see id., and is the basis on which Reid seeks to estab-
lish cause. However, for the reasons discussed above, Reid's counsel
were not ineffective with respect to his guilty plea.

A procedural default also may be excused if the petitioner demon-
strates that "failure to consider the claim[ ] will result in a fundamen-
tal miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750
(1991), i.e., that "a constitutional violation has probably resulted in
the conviction of one who is actually innocent," Murray, 477 U.S. at
496. In order to make this showing, a federal habeas petitioner must
present new "evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied
that the trial was free of nonharmless constitutional error." Schlup v.
Delo, 513 U.S. 298, 316 (1995).
Reid bases his actual innocence claim on the reports of his sentenc-
ing experts, Drs. Herrick and Voskanian, whose conclusions are dis-
cussed above. He offers no new evidence at all, and his assertion of
actual innocence fails on this basis.

V.

Reid's final claim rests on statements made by the trial court when
it pronounced Reid's sentence. Reid contends that the comments of
the trial court indicate that it failed to consider the mitigating evi-
dence Reid presented during the sentencing hearing, in violation of
the Eighth Amendment. See Eddings v. Oklahoma, 455 U.S. 104,
113-14 (1982) (explaining that the Eighth Amendment prohibits a
sentencer from categorically refusing to consider mitigating evi-
dence). Those comments are as follows:

21
 Before a sentence of death can be imposed upon you, the
Commonwealth must prove certain aggravating circum-
stances beyond a reasonable doubt. The Court has the duty
to consider all such evidence, both favorable to you and
unfavorable presented relative to this hearing in ascertain-
ing whether the crime of which you have been convicted is
so atrocious that the death sentence should be imposed.

Supp. App. to State's Br. 11 (emphasis added). Reid argues that the
use of the phrase "such evidence" refers to evidence concerning
aggravating factors, which, he contends, establishes that the trial court
considered evidence favorable to Reid only in terms of whether it
negated the existence of an aggravating factor.

On direct appeal, Reid argued that the trial court must not have
considered evidence regarding his medical conditions and his intoxi-
cation at the time of the offense, because if it had, it would have
determined that the murder was not vile and that Reid therefore could
not be sentenced to death. The Virginia Supreme Court rejected this
claim, determining "that the trial court did, in fact, consider Reid's
mitigating evidence." Reid, 506 S.E.2d at 792.

The State maintains that Reid failed to present his Eighth Amend-
ment claim to the Virginia Supreme Court on direct appeal and that
it therefore was not properly exhausted. See Picard v. Connor, 404
U.S. 270, 275 (1971) (holding that constitutional claim must be
"fairly presented" to state court in order to satisfy exhaustion require-
ment); Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) ("[T]he
exhaustion requirement demands that the petitioner do more than
scatter some makeshift needles in the haystack of the state court
record. The ground relied upon must be presented face-up and
squarely . . . . Oblique references . . . will not turn the trick." (internal
quotation marks omitted)). Because the claim would now be proce-
durally barred if presented to the state court, the State urges us to treat
the claim as exhausted but defaulted. See Gray v. Netherland, 518
U.S. 152, 161-62 (1996).

Reid concedes that he did not explicitly raise an Eighth Amend-
ment claim in the state court. He maintains, however, that the Virginia
Supreme Court was adequately apprised of the claim by his reference

22
to "constitutional requirement[s]," Supp. App. to State's Br. 19, and
his citation of state law cases that, in turn, cited Supreme Court prece-
dent. Even if this is true, the claim is without merit.

The trial court imposed sentence in an extemporaneous oral ruling.
Pinpoint accuracy in phrasing is not a hallmark of such rulings, and
should not be expected. There can be no question that the court was
aware of a duty to consider evidence favorable to Reid; indeed, the
mitigating circumstances were the subject of lengthy argument by
Reid's counsel at two penalty-phase hearings. In view of these cir-
cumstances, we cannot say that the Virginia Supreme Court made an
unreasonable determination in finding that the trial court did consider
the mitigating evidence proffered by Reid. Therefore, we must deny
relief. See 28 U.S.C.A. § 2254(d)(2).

VI.

For the reasons set forth above, we conclude that the district court
correctly denied Reid's petition for a writ of habeas corpus. We there-
fore affirm.

AFFIRMED

23
Rule 22. Habeas Corpus and Section 2255 Proceedings

(a) Application for the Original Writ. An application for a writ of
habeas corpus must be made to the appropriate district court. If
made to a circuit judge, the application must be transferred to the
appropriate district court. If a district court denies an application
made or transferred to it, renewal of the application before a cir-
cuit judge is not permitted. The applicant may, under 28 U.S.C.
§ 2253, appeal to the court of appeals from the district court's
order denying the application.

(b) Certificate of Appealability.

(1) In a habeas corpus proceeding in which the detention
complained of arises from process issued by a state
court, or in a 28 U.S.C. § 2255 proceeding, the applicant
cannot take an appeal unless a circuit justice or a circuit
or district judge issues a certificate of appealability
under 28 U.S.C. § 2253(c). If an applicant files a notice
of appeal, the district judge who rendered the judgment
must either issue a certificate of appealability or state
why a certificate should not issue. The district clerk
must send the certificate or statement to the court of
appeals with the notice of appeal and the file of the
district-court proceedings. If the district judge has
denied the certificate, the applicant may request a circuit
judge to issue the certificate.

(2) A request addressed to the court of appeals may be con-
sidered by a circuit judge or judges, as the court pre-
scribes. If no express request for a certificate is filed, the
notice of appeal constitutes a request addressed to the
judges of the court of appeals.

(3) A certificate of appealability is not required when a
state or its representative or the United States or its rep-
resentative appeals.

24
Local Rule 22(a). Certificates of Appealability.
(1) The following procedures apply in cases in which the district
court has not granted a certificate of appealability ("certificate"):
(A) The appellant may submit a request for a certificate with the
Court of Appeals specifying the issues on which the appellant seeks
authorization to appeal and giving a statement of the reasons why a
certificate should be issued. The request shall be submitted either in
the form prescribed by Fed. R. App. P. 27 for motions or on a form
provided by the clerk. The clerk shall refer the request and other rele-
vant materials to a three-judge panel. If the panel denies a certificate,
the appeal will be dismissed. If the panel grants a certificate, the clerk
shall enter a briefing order specifying the issues the Court will
review.

NOTE: Subsection (1)(A) allows an appellant to request a
certificate before a briefing order is entered. With respect to
the form of the request, the Rule largely tracks former
Fourth Circuit Rule 22(a).

Because briefing orders are entered promptly after the
appeal is docketed, this subsection is likely to affect rela-
tively few appellants. However, when an appellant does file
a request before a briefing order is entered, the most effi-
cient course for the Court is to consider that request without
waiting for a brief.
(B) If no express request for a certificate has been filed pursuant
to Subsection (1)(A) of this Rule, the notice of appeal will be treated
as a request for a certificate. See Fed. R. App. P. 22(b)(2). To assist
the Court in resolving this request, the clerk shall enter a Preliminary
Briefing Order directing the appellant to file a brief on the merits
and, if required by applicable rules, an appendix. The Preliminary
Briefing Order shall neither require nor authorize a brief from the
appellee, nor shall it make any statement regarding a reply brief by
the appellant, but in all other respects it shall be substantially identi-
cal to a standard briefing order entered pursuant to Local Rule 31(b)
or Local Rule 34(b), as appropriate. The clerk shall refer the appel-
lant's brief and other relevant materials to a three-judge panel for a

25
determination of whether the appellant has made a substantial show-
ing of the denial of a constitutional right as to any claim presented
in the brief. If the panel denies a certificate, the appeal will be dis-
missed. If the panel grants a certificate, the clerk shall enter a Final
Briefing Order stating that a certificate has been granted and direct-
ing the appellee to file a brief addressing the issue or issues that the
Court has accepted for review, and providing for the filing of a reply
brief by the appellant.

NOTE: Subsection (1)(B) sets forth the procedures that are
likely to be followed in most cases. Under these procedures,
the Court, having not received any request for a certificate,
will direct the appellant to file a brief on the merits.
Although not expressly stated in the Rule, the appellant may
also file a separate request for a certificate along with his
brief; this ensures that the appellant will not be prevented
from making arguments relating to the certificate that are
separate from the arguments on the merits. Regardless of
whether a separate request is filed, the Court will look at the
brief but will not use it to make a final decision; instead, as
stated in this section, the Court will only determine whether
the appellant has made the showing required by 28 U.S.C.
§ 2253(c)(2). If a certificate is granted, the Court will enter
an order directing the appellee to file a brief addressing the
issues the Court has accepted for review.
(2) The following procedures apply in cases in which the district
court has granted a certificate of appealability as to at least one
issue:

(A) The appellant may submit a request for a certificate as to
additional issues, along with a statement of the reasons why the
expanded certificate should be issued. The request shall be submitted
either in the form prescribed by Fed. R. App. P. 27 for motions or on
a form provided by the clerk. The clerk shall refer the request and
other relevant materials to a three-judge panel. After the panel has
granted or denied such a request, the clerk shall enter a briefing
order directing the parties to file briefs addressing the issues the
Court will review.

26
 NOTE: Section (2) of this Rule parallels Section (1). Just as
Section (1) prescribes separate procedures depending on
whether the appellant files a request for a certificate before
a briefing order is entered, Section (2) makes different pro-
visions depending on whether a request to expand the certif-
icate is filed before a briefing order is entered.

Subsection (2)(A) addresses the situation in which the
request is filed, and provides that the request will be consid-
ered before the Court enters its briefing order. In both lan-
guage and effect, this section is substantially identical to
Subsection (1)(A) of the Rule.

(B) If no express request to expand the certificate has been filed
pursuant to Subsection (2)(A) of this Rule, the clerk shall enter a
briefing order directing the parties to file briefs addressing the issues
certified for review by the district court. If the appellant's brief on the
merits addresses issues beyond the scope of the certificate granted by
the district court, this Court will not review those additional issues
unless the appellant files, simultaneously with the brief on the merits,
a statement containing the names of the parties, the case number, and
a list of the issues that the appellant wishes to add to the certificate.
Such statement may also, but need not, present reasons why the certif-
icate should be expanded. Upon receipt of the statement, the clerk
shall suspend briefing and refer the brief, the statement, and other
relevant materials to a three-judge panel. Once the panel has deter-
mined whether to expand the certificate, the clerk shall enter a Final
Briefing Order specifying the issue or issues the Court will review.
NOTE: Subsection (2)(A) governs the situation in which the
district court grants a certificate as to some issues and the
appellant wishes to raise additional issues but does not
request expansion of the certificate before a briefing order
is entered. Under this subsection, the appellant must brief all
the issues he wishes to raise and then file a separate state-
ment identifying the issues he has addressed that were not
certified by the district court. If the appellant does not file
an appropriate statement, the Court will not review any
issues beyond the scope of the certificate granted by the dis-
trict court. Cf. Valerio v. Crawford, 306 F.3d 742, 764-65

27
 (9th Cir. 2002) (en banc) (discussing circuit rule barring
expansion of certificate absent express request). When,
however, the appellant files a proper statement, the Court
will suspend briefing and decide whether to expand the cer-
tificate before requiring the appellee to file its brief; this
process parallels the process for granting a certificate ab ini-
tio, as described in Subsection (1)(B).

The purpose of the statement described in Subsection
(2)(A) is to trigger the pause in the briefing process during
which the Court will consider whether to expand the certifi-
cate. This pause will assist the Court in complying with
Miller-El v. Cockrell, 123 S. Ct. 1029 (2003), by ensuring
a separation between the certification inquiry and the final
inquiry into the merits.

The statement required by this subsection need not be
long or detailed in order to serve its underlying purpose. On
the contrary, the Court will accept a simple list of issues
addressed in the brief but not certified for review by the dis-
trict court, although the appellant is also permitted to present
a more extended discussion. The clerk may provide appel-
lants with an explanation of the statement requirement along
with a warning that failure to file an appropriate statement
will result in forfeiture of all issues beyond the scope of the
certificate granted by the district court.
(3) A request to grant or expand a certificate, including a brief
filed pursuant to Subsection (1)(B) of this Rule or a brief and state-
ment filed pursuant to Subsection (2)(B), shall be referred to a panel
of three judges. If any judge of the panel is of the opinion that the
applicant has made the showing required by 28 U.S.C. § 2253(c), the
certificate will issue.

NOTE: Section (3) retains our current practice of referring
requests for certification to three-judge panels. While Fed.
R. App. P. 22(a) may afford the Court some flexibility in
this matter, the use of three-judge panels is consistent with
Fed. R. App. P. 27(c), which provides that a single judge

28
 "may not dismiss or otherwise determine an appeal or other
proceeding."

The authority for a single judge to issue a certificate
derives from § 2253. See 28 U.S.C. § 2253(c)(1) (providing
that certain appeals may not proceed "[u]nless a circuit jus-
tice or judge issues a certificate of appealability").

(4) In considering a request to grant or expand a certificate,
including a brief filed pursuant to Subsection (1)(B) of this Rule or
a brief and statement filed pursuant to Subsection (2)(B), the panel
or any judge of the panel may request additional submissions from
either party.

NOTE: This section allows the panel to either rule on a cer-
tificate based on the materials already received or seek addi-
tional information from the parties. Although the Rule does
not limit panel discretion, it is likely that panels will seek
additional submissions in relatively few cases and will
instead issue (or expand) a certificate if the appellant has
made a sufficient showing to justify further inquiry.

(5) Notwithstanding any other statement within this Rule, whenever
the Court appoints counsel for a pro se appellant, counsel shall have
an opportunity to file a brief on the merits addressing all issues as to
which the district court or this Court has granted a certificate, unless
the Court directs otherwise.
NOTE: This section reflects our current practice of ordering
a second round of briefing whenever the Court appoints
counsel in a pro se case. This section will prevent any infer-
ence that the new Rule has either altered that practice or
reduced the discretion of the Court to follow a different pro-
cedure in a particular case.

Local Rule 22(b). Death Penalty Cases and Motions for Stay of
Execution.

(1) Statement Certifying Existence of Sentence of Death. When-
ever a petition for writ of habeas corpus or motion to vacate a federal

29
sentence in which a sentence of death is involved is filed in the district
court or the Court of Appeals, the petitioner shall file with the petition
a statement certifying the existence of a sentence of death and the
emergency nature of the proceedings and listing any proposed date
of execution, any previous cases filed by petitioner in federal court
and any cases filed by petitioner pending in any other court. The clerk
of the district court shall immediately forward to the Court of Appeals
a copy of any such statement filed, and shall immediately notify by
telephone the Court of Appeals upon issuance of a final order in that
case. If a notice of appeal is filed, the clerk of the district court shall
transmit the available record forthwith. The clerk of the Court of
Appeals will maintain a special docket for such cases and these cases
shall be presented to the Court of Appeals on an expedited basis.

(2) Lodging of Documents. In cases in which an execution date
has been set, counsel shall lodge with the clerk of the Court of
Appeals all district court documents as they are filed and any perti-
nent state court materials. If an execution date is imminent, counsel
may also lodge proposed appellate papers in anticipation of having
to seek emergency appellate relief.

(3) Motion for Stay of Execution. Any motion for stay of execu-
tion shall be considered initially in conjunction with any pending
application for a certificate of appealability. Should a party file a
motion to stay execution or a motion to vacate an order granting a
stay of execution, the following documents shall accompany such
motion:
(a) The habeas petition or motion to vacate filed in the
district court;
(b) Each brief or memorandum of authorities filed by
either party in the district court;
(c) Any available transcript of proceedings before the dis-
trict court;
(d) The memorandum opinion giving the reasons
advanced by the district court for denying relief;
(e) The district court judgment denying relief;
(f) The application to the district court for stay;
(g) Any certificate of appealability or order denying a
certificate of appealability;
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 (h) The district court order granting or denying a stay
and a statement of reasons for its action; and
(i) A copy of the docket entries of the district court.

Local Rule 22(c). Petitions for Rehearing in Death Penalty Cases.
Once the Court's mandate has issued in a death penalty case, any
petition for panel or en banc rehearing should be accompanied by a
motion to recall the mandate and motion to stay the execution.

Generally, the Court will not enter a stay of execution solely to
allow for additional time for counsel to prepare, or for the Court to
consider, a petition for rehearing. Consequently, counsel should take
all possible steps to assure that any such petition is filed sufficiently
in advance of the scheduled execution date to allow it to be consid-
ered by the Court. Counsel should notify the Clerk's Office promptly
of their intention to file a petition for rehearing so that arrangements
can be made in advance for the most expeditious consideration of the
matter by the Court.

Local Rule 22(d). Motions for Authorization.
Any individual seeking to file in the district court a second or suc-
cessive application for relief pursuant to 28 U.S.C. § 2254 or § 2255
shall first file a motion with the Court of Appeals for authorization
as required by 28 U.S.C. § 2244, on the form provided by the clerk
for such motions. The motion shall be entitled "In re ______________,
Movant." The motion must be accompanied by copies of the § 2254
or § 2255 application which movant seeks authorization to file in the
district court, as well as all prior § 2254 or § 2255 applications chal-
lenging the same conviction and sentence, all court opinions and
orders disposing of those applications, and all magistrate judge's
reports and recommendations issued on those applications. The
movant shall serve a copy of the motion with attachments on the
respondent named in the proposed application and shall file an origi-
nal and three copies of the motion with attachments in the Court of
Appeals. Failure to provide the requisite information and attachments
may result in denial of the motion for authorization.
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 If the Court requires a response to the motion, it will direct that
the response be received by the clerk for filing within no more than
seven calendar days. The Court will enter an order granting or deny-
ing authorization within 30 days of receipt of the motion by the clerk
for filing, and the clerk will certify a copy of the order to the district
court. If authorization is granted, a copy of the application will be
attached to the certified order for filing in the district court. No
motion or request for reconsideration, petition for rehearing, or any
other paper seeking review of the granting or denial of authorization
will be allowed.

I.O.P.-22.1. Death Penalty Cases. Once a notice of appeal has
been filed in a case involving a sentence of death where an execution
date has been set, a panel of three judges will be promptly identified
for consideration of all matters related to the case. The position of
coordinator of case information in death penalty cases has been
established in the Clerk's Office of the Court of Appeals for the pur-
pose of establishing personal liaison with district court personnel and
counsel to aid in the expeditious treatment of appeals involving a sen-
tence of death. An expedited briefing schedule will be established
when necessary to allow the Court the opportunity to review all issues
presented.

Local Rule 22(a) amended December 1, 1995, June 5, 1996, Decem-
ber 1, 1998, and July 8, 2003.
Local Rule 22(b) amended December 1, 1995 and June 5, 1996.
Former I.O.P.-22.3 redesignated Local Rule 22(c) December 1, 1995;
Local Rule 22(c) amended December 1, 1998 and December 1, 2002.
Local Rule 22(d) added June 5, 1996, and amended December 1,
2002.
Former I.O.P.-22.1 deleted December 1, 1995.
Former I.O.P.-22.2 redesignated I.O.P.-22.1 December 1, 1995, and
amended June 1, 1999.

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