Ricky Gray v. David Zook

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5

RICKY JOVAN GRAY,

Petitioner - Appellant,

v.

DAVID ZOOK, Warden, Sussex I State Prison,

Respondent - Appellee.

No. 14-3

RICKY JOVAN GRAY,

Petitioner - Appellant,

v.

DAVID ZOOK, Warden, Sussex I State Prison,

Respondent - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:11−cv−00630−AJT−TCB)

Argued: September 15, 2015 Decided: November 25, 2015

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined. Senior Judge Davis wrote a separate
opinion concurring in part and dissenting in part.

ARGUED: Elizabeth Hambourger, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina; Robert Edward Lee, Jr.,
VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee. ON BRIEF: Jonathan P. Sheldon, SHELDON & FLOOD,
PLC, Fairfax, Virginia; David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Mark R.
Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

2
DIAZ, Circuit Judge:

Ricky Jovan Gray appeals the district court’s denial of his

petition for a writ of habeas corpus. His appeal presents two

questions. First, whether the Supreme Court of Virginia, in

resolving factual disputes regarding an ineffective-assistance-

of-counsel claim without an evidentiary hearing, made an

“unreasonable determination of the facts” under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254(d)(2). Because we find that the state court

did not ignore Gray’s evidence or otherwise reversibly err in

resolving factual disputes on the record, we reject this first

challenge. The second question is whether Gray may belatedly

raise in the district court a claim of ineffective assistance of

trial counsel under the Supreme Court’s decision in Martinez v.

Ryan, 132 S. Ct. 1309 (2012). We find that the claim Gray seeks

to raise was presented to, and decided by, the state court.

Therefore, it is not subject to de novo review in the district

court under Martinez.

Accordingly, we affirm the judgment of the district court.

I.

A.

On the morning of January 1, 2006, in the course of a home

burglary, Gray murdered Bryan and Kathryn Harvey and their two

3
young daughters, Ruby and Stella, by tying them up in their

basement and then cutting their throats, stabbing them, striking

them with a claw hammer, and setting fire to their home.

Although Gray was with two accomplices, Ray Dandridge and Ashley

Baskerville, Gray confessed to having committed all of the

killings. The police officer who took Gray’s confession,

Detective Howard Peterman, testified at trial to the

circumstances in which Gray confessed. He also read the

confession to the jury.

The trial was conducted in two phases. In the guilt phase,

the jury convicted Gray of five counts of capital murder. In

the penalty phase, the Commonwealth introduced evidence of

several other killings Gray had committed near the time of the

Harvey murders, including bludgeoning his wife with a lead pipe

two months earlier and suffocating Baskerville and her mother

and stepfather a week after the Harvey murders. Gray offered

evidence of his parents’ abuse and neglect during his childhood,

his repeated sexual abuse at the hands of his brother from a

very early age, and Gray’s consistent drug use, beginning when

he was young. He also offered expert testimony to connect this

evidence to his later violent behavior. Dr. David Lisak, a

psychologist who did not examine Gray, opined on the potential

connection between Gray’s childhood abuse and his violent

behavior as an adult. Dr. Mark Cunningham, a clinical and

4
forensic psychologist who did examine Gray, testified that Gray

was unlikely to be seriously violent in prison.

The jury issued verdicts of life imprisonment on three of

the counts and verdicts of death for the murders of Ruby and

Stella, finding the aggravating factor of “vileness.” On direct

appeal, the Supreme Court of Virginia affirmed Gray’s

convictions and death sentences.

B.

Gray then sought state habeas relief in the Supreme Court

of Virginia. 1 Relevant here, Claim III of that petition alleges

that Gray’s trial counsel failed to make a reasonable

investigation of his confession. According to Gray, he

repeatedly asked police officers for an attorney and a phone

call, but was denied both. Gray also asserts that he told the

police that his drug use on the day of the crime, especially his

use of PCP, left him unable to remember the day’s events. To

fill the gaps in his memory, Gray says, police officers showed

him statements made by his accomplice Dandridge, and he adopted

Dandridge’s account as his own. Had Gray’s trial attorneys

sufficiently investigated these allegations, Gray contends, they

could have had the confession suppressed or, at least, sowed

1
Virginia requires habeas petitioners subject to the death
penalty to apply directly to the state supreme court. Va. Code
Ann. § 8.01-654(C)(1).

5
doubt in the jury’s mind as to the extent of Gray’s

participation in the murders. The warden moved to dismiss,

attaching a joint affidavit from Gray’s trial attorneys.

The Supreme Court of Virginia dismissed Gray’s habeas

claims, save one not relevant here. In dismissing Claim III,

the court held that Gray had shown neither that his trial

counsel performed unreasonably, nor that he suffered prejudice

from deficient performance, the two requirements under

Strickland v. Washington, 466 U.S. 668, 687 (1984). The court

supported its holding with the following findings of fact,

relying heavily on the affidavit of Gray’s trial attorneys:

The record, including the affidavit of counsel,
demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the
murders and that “PCP could not be to blame.”
Furthermore, counsel spoke to every officer involved
in petitioner’s arrest, including Detective Peterman,
and determined that petitioner was not provided any
details from Dandridge’s statement before or during
his statement to the police. The affidavit of counsel
also demonstrates that petitioner never informed
counsel that Detective Peterman had “fed” him the
details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find
any evidence that would have supported a motion to
suppress petitioner’s statements to police.

Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275, 284

(Va. 2011).

6
 C.

Gray next filed a federal habeas petition, arguing with

respect to Claim III 2 that the Supreme Court of Virginia’s

dismissal of the claim was based on an unreasonable

determination of the facts under AEDPA’s § 2254(d)(2). The

district court determined that, although the state court made

credibility determinations and weighed the parties’ affidavits

without an evidentiary hearing, “Section 2254(d) affords wide

latitude to state courts in fashioning state habeas procedures

and . . . the procedures adopted by the state court were not,

within the context of this case, inherently unreasonable or

unreliable.” Gray v. Pearson, No. 1:11-cv-630, 2012 WL 1481506,

at *12 (E.D. Va. Apr. 27, 2012). Considering “the totality of

the state court record,” the district court concluded that “the

2 Gray’s original habeas petition includes ten claims. The
first alleges that prosecutors (a) failed to disclose
exculpatory evidence regarding Dandridge’s culpability and (b)
made false statements about Gray’s confession. The remaining
claims allege ineffective assistance for failure to: present
evidence of relative culpability between Gray and Dandridge
(Claim II); make a reasonable investigation of Gray’s statements
to police (Claim III); protect Gray’s double jeopardy right
(Claim IV); protect Gray’s right to plead guilty and have
sentencing factors determined in a constitutional manner (Claim
V); object to the prosecutor’s comment on Gray’s failure to
testify (Claim VI); ensure jurors were properly instructed
(Claim VII); move for a mistrial based on juror misconduct and
object to Gray’s exclusion from a hearing on the issue (Claim
VIII); and present sufficient mitigating evidence at sentencing
(Claim IX). Claim X alleges ineffective assistance based on the
cumulative effect of Claims II-IX.

7
state court’s determinations of fact were not unreasonable.”

Id.

D.

After Gray filed his federal habeas petition, but before

the district court had ruled on it, the Supreme Court decided

Martinez v. Ryan. Martinez provides a narrow exception to the

general rule, stated in Coleman v. Thompson, 501 U.S. 722, 752–

53 (1991), that errors committed by state habeas counsel do not

provide cause to excuse a procedural default. The Supreme Court

summarized its holding as follows:

Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.

Martinez, 132 S. Ct. at 1320.

Three aspects of the decision are notable here. First,

Martinez permits a petitioner to excuse certain procedurally

defaulted ineffective-assistance-of-trial-counsel claims. But

if claims are not procedurally defaulted—that is, they were

properly presented to the state court—then Martinez does not

apply. See Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir.

2014) (holding that “Martinez does not apply to claims that were

fully adjudicated on the merits by the state habeas court

8
because those claims are, by definition, not procedurally

defaulted”). Second, because a petitioner raising a Martinez

claim never presented the claim in state court, a federal court

considers it de novo, rather than under AEDPA’s deferential

standard of review. See § 2254(d) (providing review standards

for “any claim that was adjudicated on the merits in State court

proceedings”). Finally, a Martinez claim requires a showing

that state habeas counsel was ineffective.

Because Gray’s state habeas attorneys also represented him

in the federal proceedings, a conflict of interest arose

regarding counsel’s ability to identify and argue potential

Martinez claims. Gray therefore moved for appointment of new

counsel. The district court denied the motion.

The district court also denied Gray’s habeas petition in

full. Gray, 2012 WL 1481506, at *20. The district court then

certified two questions to this court: first, whether the state

habeas court’s dismissal of Claim III was based on an

unreasonable determination of the facts; and second, whether

Martinez entitled Gray to the appointment of independent

counsel. We reserved the first question and answered the second

in the affirmative, directing the district court to appoint

independent counsel to explore the existence of Martinez claims.

Gray v. Pearson, 526 F. App’x 331, 335 (4th Cir. 2013).

9
 After the district court appointed new counsel and granted

Gray’s motions to appoint new experts and an investigator, Gray

filed an amended petition. He presented four claims, all based

on Martinez, only one of which, Claim XI, is relevant here. 3 In

this claim, Gray asserts that his trial attorneys were

ineffective in failing to present evidence of Gray’s voluntary

intoxication at the time of the crimes and that his state habeas

attorneys were ineffective for not raising the claim in the

Supreme Court of Virginia.

The district court treated Claim XI as two distinct

ineffective-assistance claims, one regarding the guilt phase,

and one regarding the penalty phase. Gray v. Davis, No. 1:11-

cv-630 (AJT/TCB), 2014 WL 2002132, at *4 (E.D. Va. May 13,

2014). As to the guilt-phase claim, the district court

dismissed it for failing to meet certain requirements stated in

Martinez. 4 As to the penalty-phase claim, the district court

3
The amended petition incorporates the original petition by
reference, accepting that the original ten claims had already
been dismissed by the district court. Accordingly, the claim
numbering in the amended petition begins at XI. The other three
Martinez claims, which are not before us, allege that Gray’s
constitutional rights were violated by a juror’s consideration
of extrinsic evidence (Claim XII), that trial counsel failed to
conduct an adequate mitigation investigation (Claim XIII), and
that the cumulative errors of trial counsel constituted
ineffective assistance (Claim XIV).

4
The district court found two faults with the claim under
Martinez. First, Gray could not make a substantial showing that
(Continued)
10
found that Gray’s state habeas counsel had raised it in the

state court. Id. at *11. As a result, the claim was not

procedurally defaulted, and Martinez did not apply. See id.

And even if the penalty-phase claim had been procedurally

defaulted, the district court held, it likewise failed to meet

the other Martinez requirements. Id.

The district court denied the amended petition, but issued

a certificate of appealability with respect to the penalty-phase

claim only. 5 This appeal followed.

II.

Two issues are before us on appeal. The first is the

reserved claim from Gray’s prior appeal to this court: whether

the Supreme Court of Virginia’s dismissal of Claim III—

ineffective assistance of trial counsel in failing to

investigate Gray’s confession—was “based on an unreasonable

trial counsel performed deficiently, or, assuming they had, that
Gray was prejudiced as a result. Gray, 2014 WL 2002132, at *5-
13. Second, Gray failed to make a substantial showing that his
state habeas counsel were ineffective by not raising the trial-
counsel claim. Id. at *13-14. Assuming without deciding that
state habeas counsel’s performance was deficient, the district
court held that Gray could not show prejudice. Id.
5 Although Gray moved to expand the certificate of
appealability to include a juror misconduct claim and a separate
ineffective-assistance claim, he did not move to include the
guilt-phase claim. We denied the motion.

11
determination of the facts” under AEDPA’s § 2254(d)(2) because

the court resolved disputed issues of fact without an

evidentiary hearing. The second issue is whether, under

Martinez, Gray may belatedly raise in the district court an

ineffective-assistance-of-trial-counsel claim—namely, that trial

counsel failed during the penalty phase to present evidence of

Gray’s voluntary intoxication at the time of the crimes. We

consider each issue in turn, reviewing de novo the district

court’s denial of a petition for a writ of habeas corpus.

Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009).

A.

We first consider Gray’s argument under § 2254(d)(2) that

the Supreme Court of Virginia’s decision to deny Gray’s

ineffective-assistance-of-trial-counsel claim warrants no

deference from the federal courts. According to Gray, the state

court made an “unreasonable determination of the facts” by

ignoring his evidence and by resolving factual disputes without

an evidentiary hearing. We find neither contention persuasive.

AEDPA permits a federal habeas court to review claims

decided on the merits by state courts when the state court

adjudication “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). An unreasonable determination of the facts is not

12
merely an incorrect determination, but one “sufficiently against

the weight of the evidence that it is objectively unreasonable.”

Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010).

1.

Gray first argues that the Supreme Court of Virginia’s fact

determination was unreasonable because the court ignored his

evidence. He is concerned primarily with the affidavit of

defense investigator Melvin Knight, who interviewed Gray and who

also interviewed some of the police officers involved in Gray’s

arrest and interrogation. In the affidavit, Knight relates

statements that Gray made about the circumstances surrounding

his confession, including (1) that Gray had asked police for an

attorney, (2) that Gray had told police he was fuzzy on the

details of the crimes because of drug use at the time of the

crimes, and (3) that the police had “fed” him details of the

crimes from his accomplice Dandridge. The record, however, does

not support Gray’s assertion that the Supreme Court of Virginia

ignored his evidence.

When a state court apparently ignores a petitioner’s

properly presented evidence, its fact-finding process may lead

to unreasonable determinations of fact under § 2254(d)(2).

Moore v. Hardee, 723 F.3d 488, 499 (4th Cir. 2013) (citing

Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)); see also

Miller-El v. Cockrell, 537 U.S. 322, 346 (2003) (expressing

13
concern that a state court “had before it, and apparently

ignored” petitioner’s probative evidence of a constitutional

violation). In Taylor, for example, the Ninth Circuit found

factual determinations unreasonable when the state court ignored

a “highly probative” affidavit corroborating the petitioner’s

claim that his confession had been coerced and he had been

denied an attorney. 366 F.3d at 1006 (noting that “[a] rational

fact-finder might discount [the affidavit] or, conceivably, find

it incredible, but no rational fact-finder would simply ignore

it”).

But as we said in Moore, a state court need not refer

specifically to each piece of a petitioner’s evidence to avoid

the accusation that it unreasonably ignored the evidence. See

723 F.3d at 499; cf. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.

2000) (en banc) (holding that “we may not ‘presume that [the]

summary order is indicative of a cursory or haphazard review of

[the] petitioner’s claims’” (alteration in original) (quoting

Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998))).

Rather, to determine whether the state court considered or

ignored particular evidence, the federal court must review “the

entirety of the [state] court’s order.” Moore, 723 F.3d at 499.

In Moore, the petitioner argued before the state court that

his trial counsel was ineffective in failing to call an expert

on the inaccuracy of eyewitness memory. Id. at 492. In support

14
of the claim, the petitioner filed an affidavit from such an

expert explaining what evidence trial counsel could have

presented. Id. at 492–93. The state court denied the claim,

finding that trial counsel had “fully presented” evidence

relating to petitioner’s eyewitness identification. Id. at 493.

The state court listed each piece of the petitioner’s evidence

except the expert’s affidavit and then said that the petitioner

did “not suggest that there is any more evidence regarding the

identification.” Id. The district court, taking this assertion

to mean that the state court had ignored the affidavit, found

the determination of fact unreasonable. Id. at 499.

We reversed, noting that the state court, immediately after

concluding that the petitioner had not offered “any more

evidence,” went on to say that “there was no showing to justify

or require an expert on identification.” Id. This statement,

we said, demonstrated that the state court considered the

petitioner’s submission and reached a conclusion as to which

“‘[fair-minded] jurists could disagree.’” Id. (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).

As in Moore, the record here demonstrates that the Supreme

Court of Virginia did not ignore Gray’s evidence. Rather, the

court simply determined that Gray’s evidence was not credible.

We base our conclusion in part on the court’s denial of a motion

to strike the Knight affidavit. The warden moved to strike the

15
affidavit as inadmissible hearsay. The parties ultimately

traded five briefs on the issue, and, in its decision denying

Gray’s petition, the Supreme Court of Virginia denied the motion

to strike. Gray, 707 S.E.2d at 290. The denial of the motion

after substantial briefing indicates that the state court

considered the affidavit.

Our conclusion is strengthened by the minimal probative

value of the Knight affidavit. Whereas in Taylor the state

court’s failure to discuss petitioner’s “highly probative”

evidence was inexplicable, here the explanation is simple: the

Supreme Court of Virginia could reasonably have determined that

the Knight affidavit did not warrant discussion. See Taylor,

366 F.3d at 1001 (“To fatally undermine the state fact-finding

process, and render the resulting finding unreasonable, the

overlooked or ignored evidence must be highly probative and

central to petitioner’s claim.”). Because fair-minded jurists

could disagree on the correctness of this conclusion, Gray is

not entitled to relief on this aspect of his claim. See Moore,

723 F.3d at 499.

2.

Next, Gray argues that the Supreme Court of Virginia’s

determinations of fact were necessarily unreasonable because the

court failed to hold an evidentiary hearing. Gray stops short

of arguing that evidentiary hearings are always required,

16
claiming instead that one was necessary here because of the

strength of his pleadings and supporting evidence. The district

court held that the lack of a hearing did not itself render the

determination of facts unreasonable, and its own review of the

record likewise confirmed that the determination was not

unreasonable. Gray, 2012 WL 1481506, at *12.

A state habeas court need not hold an evidentiary hearing

in every case to make reasonable fact determinations. Strong v.

Johnson, 495 F.3d 134, 139 (4th Cir. 2007). In Strong, the

petitioner alleged ineffective assistance of counsel, claiming

he had asked his attorney to file an appeal, but the attorney

failed to do so despite assurances he would. Id. at 140. The

state filed a motion to dismiss, attaching the attorney’s sworn

letter attesting he had met with the petitioner twice to discuss

the appeal and the petitioner had ultimately agreed no appeal

would be filed. Id. Without holding an evidentiary hearing,

the state court granted the motion to dismiss, essentially

adopting the attorney’s version of events and rejecting the

petitioner’s:

The record, including the affidavit of counsel,
demonstrates that petitioner initially instructed
counsel to appeal his convictions and counsel advised
petitioner that he had no grounds upon which to
appeal. Petitioner told counsel he understood and
agreed that an appeal would serve no purpose. . . .
Petitioner has failed to establish that he objectively
demonstrated his intent to appeal his conviction.

17
Id. at 137–38.

We held that the state court’s determination of disputed

facts without a hearing was not unreasonable. Strong, 495 F.3d

at 140. “[T]here is no prohibition,” we explained, “against a

court making credibility determinations based on competing

affidavits in certain circumstances,” including “when one

affidavit is cryptic or conclusory with respect to a contested

issue of fact and the other affidavit sets out a detailed

account of events.” Id. at 139.

As we explain below, because Gray’s allegations are

similarly conclusory and the record presents “a detailed account

of events” contradicting the allegations, the Supreme Court of

Virginia permissibly resolved disputed facts without an

evidentiary hearing.

a.

In support of his ineffective-assistance claim in the

Supreme Court of Virginia, Gray presented evidence in the form

of (1) the Knight affidavit, (2) an account of Gray’s confession

given by Detective Peterman during a hearing held more than a

year after the trial, and (3) his own allegations in the

18
petition. 6 The warden supported its motion to dismiss with an

affidavit from Gray’s trial attorneys.

As to his allegation that he requested an attorney and a

phone call, Gray’s sole evidence is Knight’s retelling of Gray’s

own account: “Mr. Gray told me that during his January 7, 2006,

interrogation by police in Philadelphia, he repeatedly asked for

an attorney and a phone call.” J.A. 382; see id. at 118. This

bare, self-serving allegation, however, is strongly contradicted

by the record.

Although Detective Peterman was not specifically asked at

trial whether Gray requested an attorney or a phone call, his

detailed and coherent account of the confession rebuts Gray’s

allegation. Peterman described an interaction marked by

cooperation rather than resistance. See id. at 19-21 (Peterman

testifying that he told Gray he knew “the truth according to Ray

Dandridge,” and Gray responded, “Can I tell you my side of the

story?”). Moreover, he described Gray as initiating the

discussion.

We also know from Gray’s signed waiver of counsel that, at

least in the moments before taking Gray’s confession, Peterman

6 While Gray also attempted to rely on the affidavit of
defense mitigation investigator Judith McClendon, the Supreme
Court of Virginia struck that affidavit on the warden’s motion,
Gray, 707 S.E.2d at 290, and Gray offers no challenge to that
decision, see Appellant’s Br. 28-29.

19
informed Gray of his right to counsel. See J.A. 38–39 (Gray

answering “no” to the question, “Do you want to talk to a lawyer

at any time or have a lawyer with you while we ask you

questions?”). If Peterman’s story were false, one would expect

Gray to provide a competing account or, at the very least,

explain his apparently valid waiver of counsel. But Gray has

failed to do either.

In addition to the evidence at trial, Gray’s attorneys say

that they investigated the confession. According to their joint

affidavit, they “travelled to Philadelphia, Pennsylvania, and

spoke directly to all the officers that had dealt with Gray,

including everyone in the ‘chain of custody’ of his arrest.”

Id. at 700. Although the attorneys “were actively looking for

suppression issues,” they “could not find grounds for even a

colorable claim to suppress any of the statements Gray made to

law enforcement.” Id. at 701. Gray’s attorneys do not state

specifically whether they investigated Gray’s allegation that he

requested an attorney, or even whether they knew of it. But

they do indicate that their interviews with the officers

involved in Gray’s confession did not uncover evidence that Gray

was denied counsel he had requested.

Based on our review of the record, we cannot say that the

Supreme Court of Virginia was objectively unreasonable in

discounting Gray’s allegation that he was denied counsel and a

20
phone call. The assertion is bare and belated, and the record

evidence contradicting it is detailed.

We reach the same conclusion as to Gray’s allegation that

he could not remember the details of the crimes and was fed his

confession by police. In his state petition, Gray asserts “that

he told police that he didn’t remember many details because he

was high on a combination of marijuana, ecstasy and PCP when the

crimes were committed.” Id. at 118. He then describes how the

police fed him his confession:

[D]etectives went back and forth between his room and
the room in which they were interrogating Dandridge
and showed him Dandridge’s signed statement with full
disclosure and complete details about each of the
murder scenes, read him the statement, and, although
Gray was not clear on the details, used Dandridge’s
statement to fashion a statement purportedly from
Gray.

Id. Knight independently confirmed with Peterman that Gray had

told the detective “that his memory of the details of the crimes

was fuzzy.” Id. at 384. 7

Gray’s allegation of being fed details is hardly detailed,

and unanswered questions make it difficult to credit. Which

details of Gray’s confession came from Dandridge? Why did Gray

accept them when he could not remember what had happened? And

7Gray also relies on statements made by Detective Peterman
in a hearing on an unrelated matter, as discussed in detail
below.

21
why, if he was simply accepting the confession as the police

provided it, did he bother to amend his statement, apparently to

remove evidence of premeditation? See Suppl. J.A. 44 (“Q. What

happened after you talked [the Harvey family] downstairs [i.e.,

into the basement]? A. We was playing like everything was

gonna be all right. Everything was all right.”).

As further support for his allegation, Gray points to

Detective Peterman’s testimony given more than a year after

Gray’s trial in a hearing on a separate criminal matter. There,

Peterman states that before he recorded the confession as a

formal question-and-answer dialogue, he first asked what Gray

knew about the crime. Gray argues that this statement proves

that Peterman had the opportunity during preliminary discussions

with Gray to learn of the gaps in Gray’s memory and fill them in

with details from Dandridge’s account. Peterman, however, did

not give the slightest hint of having coached Gray on his

answers. See J.A. 396 (“[Gray’s attorney to Peterman]: And is

it fair to say that the way you would approach it is you would

talk to him about a specific incident before committing anything

to writing? [Peterman]: Would I give him information about it?

I would tell Rick what I wanted to know about the incident that

I was questioning him about, and if he had any information about

it that he wanted to share with me.”).

22
 Gray also contends that this new testimony proves that

Peterman lied at trial about the confession. At trial, Peterman

described in general terms sitting down with Gray and obtaining

Gray’s waivers of his Fifth and Sixth Amendment rights. The

prosecutor then asked Peterman a series of questions about

Gray’s demeanor during the confession and established that the

confession had been recorded only in writing. Next, the

prosecutor asked, “Detective Peterman, is there any aspect of

your interview with Mr. Gray that we haven’t gone over that

leads up to the actual substance of the interview?” Id. at 23.

“No,” Peterman responded. Id. at 24. The prosecutor continued:

“Now, am I correct that you asked him a series of questions and

he provided a series of answers to you?” Id. Peterman replied,

“That’s correct.” Id. The prosecutor then had Peterman read

the recorded questions and answers to the jury.

Gray posits that this exchange shows Peterman attempted to

conceal off-the-record discussions with Gray. We find this

interpretation unconvincing. Peterman never denied having an

informal preliminary discussion, nor did his responses at trial

foreclose the possibility.

Critically, when Peterman was asked at trial whether he “at

any point assist[ed] Mr. Gray in his recollection of what

happened,” including “tell[ing] [him] anything that Mr.

Dandridge had told” Peterman, the detective replied, “No.” Id.

23
at 30. In Peterman’s account, Gray prompted the conversation

about the crimes after learning that Peterman had already spoken

with Dandridge. Having acknowledged his constitutional rights,

including his right to counsel, Gray answered Peterman’s

questions about the crimes. Gray reviewed the statement as

Peterman had recorded it and certified that it was correct and

accurate. And according to the Knight affidavit, Peterman gave

a similar account of the confession prior to trial. See id. at

384 (noting that Peterman “denied that a ‘dry run’ interview

preceded the written verbatim statement”).

Trial counsel’s joint affidavit corroborates Peterman’s

account of the confession:

There was no evidence that the police fed Gray any
facts from Dandridge’s statements when they
interviewed Gray. The information we obtained about
the interview procedures all was consistent with the
trial testimony: Gray asked, during a bathroom break,
if the police had spoken to Dandridge; the detective
said yes; Gray asked what Dandridge said; the answer
was “everything” or some similar general comment; and
Gray then proceeded to give his statement.

Id. at 701.

Trial counsel also stated that “Gray did not tell us that

he had been fed details of the crimes.” Id. According to the

Knight affidavit, however, Gray told Knight precisely that. The

Supreme Court of Virginia, without referring to the Knight

affidavit, found that “[t]he affidavit of counsel . . .

demonstrates that petitioner never informed counsel that

24
Detective Peterman had ‘fed’ him the details of the crimes or of

Dandridge’s statements to police.” Gray, 707 S.E.2d at 284.

While we find this troubling to the extent it suggests the state

court preferred the attorneys’ affidavit to Knight’s, we

nevertheless cannot say that the state court’s decision was

based on “an unreasonable determination of the facts.”

§ 2254(d)(2). Even if the attorneys knew about Gray’s

allegations, the evidence we have described supported the

Supreme Court of Virginia’s determination that Gray’s

allegations were not credible.

Finally, Gray’s trial attorneys contradict his claim that

drug use clouded his memory of the crime: “Gray insisted

repeatedly that PCP could not be to blame. He insisted that he

knew what he was doing.” J.A. 706; see also id. 720 (doctor

conducting competency evaluation noting that Gray “insisted he

was never so intoxicated that he felt it destroyed his ability

to understand what was happening”); id. 726 (doctor conducting

evaluation of Gray’s mental condition at the time of the crime,

noting that Gray “denied that as a result of his drug use . . .

he was unaware of his actions at the time of the present

offenses”).

In the face of all this, we cannot say that the state

court’s decision to reject Gray’s ineffective-assistance claim

25
without holding a hearing resulted in unreasonable

determinations of fact. See § 2254(d)(2).

b.

To persuade us otherwise, Gray cites a number of cases in

which the United States Supreme Court has required a state court

to hold an evidentiary hearing. But while these cases support

the general proposition that due process sometimes requires a

hearing, they do not establish that one was required here.

Gray’s reliance on Panetti v. Quarterman, 551 U.S. 930

(2007), is particularly misplaced. Whereas Panetti addresses

the unreasonable application of federal law under § 2254(d)(1),

Gray is fundamentally attacking the way the state court

determined facts, not the way it applied a particular Supreme

Court precedent. 8 In Panetti, the district court failed to hold

an incompetency hearing as required under Supreme Court

precedent. Id. at 948. Unlike the petitioner in Panetti, Gray

has not identified a Supreme Court case that entitles him to a

hearing. Strickland, the basis for Gray’s claim, certainly

provides no such entitlement. See 466 U.S. at 700 (“The state

8Although Gray occasionally couches his arguments in terms
of an “unreasonable application” of federal law under
§ 2254(d)(1), we find that his arguments are better addressed
under § 2254(d)(2). See Winston, 592 F.3d at 553 (noting that
Ҥ 2254(d)(2) describes the standard to be applied to claims
challenging how the state courts determined the facts”).

26
courts properly concluded that the ineffectiveness claim was

meritless without holding an evidentiary hearing.”).

Nor was Gray’s claim given the kind of short-shrift

treatment that the Supreme Court rejected in Pennsylvania ex

rel. Herman v. Claudy, 350 U.S. 116 (1956), and Palmer v. Ashe,

342 U.S. 134 (1951). In Claudy, the petitioner alleged that his

confession and guilty plea had been coerced by threats to

himself and his family, and that he was denied the benefit of

counsel. 350 U.S. at 117. The state denied the allegations

and, without holding a hearing, the state court summarily

dismissed. Id. at 117–18. According to the Supreme Court,

summary dismissal of the petitioner’s claims “merely because the

allegations of his petition were contradicted by the prosecuting

officers” was unreasonable. Id. at 123. Here, by contrast, the

Supreme Court of Virginia had not only the officers’ word

against Gray’s, but also contradictory statements from Gray and

the affidavit of Gray’s trial attorneys.

Similarly, in Palmer, the Court required a state court to

provide a hearing to determine whether the petitioner should

have been afforded counsel where he alleged he was

intellectually disabled and police had tricked him into pleading

guilty to armed robbery when he thought he was pleading to the

less serious crime of breaking and entering. 342 U.S. at 136–

38. A hearing was necessary because the “record does not even

27
inferentially deny petitioner’s charge that the officers

deceived him, nor does the record show an understanding plea of

guilty from this petitioner, unless by a resort to speculation

and surmise.” Id. at 137. Here, again, Gray’s case is quite

different—the record provides strong evidence that Gray’s claims

are not credible. 9

Finally, Gray directs our attention to Brumfield v. Cain,

135 S. Ct. 2269 (2015). There, the state court denied

petitioner an evidentiary hearing in which to prove that he was

intellectually disabled under Atkins v. Virginia, 536 U.S. 304

(2002). Brumfield, 135 S. Ct. at 2274–75. In finding some of

the state court’s fact determinations unreasonable, the Supreme

Court took into account what evidentiary standard would entitle

the petitioner to a hearing: “Brumfield needed only to raise a

‘reasonable doubt’ as to his intellectual disability.” Id. at

2281. Because this standard imposed a low burden of proof on

Brumfield, the Court concluded that he met the “reasonable

doubt” standard even though “other evidence in the record before

9Nor is McNeal v. Culver, 365 U.S. 109 (1961), helpful to
Gray. As in Claudy and Palmer, the petitioner’s allegations of
a constitutional violation in McNeal were not significantly
called into question by the record. Id. at 117 (“On the present
record it is not possible to determine [the allegations’]
truth.”).

28
the state court may have cut against Brumfield’s claim of

intellectual disability.” Id. at 2280.

Gray contends that, as in Brumfield, the Supreme Court of

Virginia’s findings of fact are unreasonable under the

applicable evidentiary standard: “[T]he state court in Gray’s

case failed to recognize that Gray’s evidence, viewed in the

light most favorable to him, should defeat the Warden’s motion

to dismiss.” Appellant’s Letter Br. 2. To the extent Gray

implies that the state court was not permitted to discount his

evidence where it was contradicted by the record, his argument

is in tension with Strong. 495 F.3d at 139 (noting “there is no

prohibition against a court making credibility determinations

based on competing affidavits in certain circumstances”). And

nothing in Brumfield casts doubt on our precedent.

In sum, because Gray’s claim of ineffective assistance of

counsel is based on his own “conclusory” allegations, and

because the record provides sufficient evidence to contradict

them, we hold that, as in Strong, the state court’s

determination of the facts was not objectively unreasonable even

without an evidentiary hearing.

B.

We next consider Gray’s contention that he is entitled to

raise in the district court a claim of ineffective assistance of

trial counsel under Martinez v. Ryan. As we have explained,

29
Martinez permits a petitioner, under certain circumstances, to

excuse a procedural default and bring a claim in federal court

that was not raised in state court. Such a claim, never having

been heard by a state court, is reviewed de novo. As a result,

the usual roles of the habeas petitioner and the government are

reversed here. Gray, seeking de novo review, argues that his

ineffective-assistance-of-trial-counsel claim was procedurally

defaulted—an outcome that would normally bar the claim. The

warden, seeking to deny Gray the benefit of Martinez, argues

that Gray properly presented the claim to the Supreme Court of

Virginia.

The district court sided with the warden, holding that the

trial-counsel claim was not procedurally defaulted and therefore

Martinez did not apply. See Gray, 2014 WL 2002132, at *11. The

district court compared the “new” claim with claims already

presented to the Supreme Court of Virginia, concluding that

“Gray’s [new] Claim XI differs from his previously asserted

Claim IX only in that it is framed exclusively within the

context of a voluntary intoxication defense and the effect such

a presentation would have likely had on a jury who found a death

sentence.” Id.

As we explain below, we agree with the district court that

the claim was properly presented to the Supreme Court of

Virginia and thus not procedurally defaulted. The claim

30
therefore cannot be reviewed de novo under Martinez. As a

result, we do not consider the district court’s alternate

holdings that, under Martinez, the claim is not “substantial”

and Gray’s state habeas counsel was not ineffective in failing

to raise it. See id. at *5–14.

1.

Before seeking federal habeas review of a claim, a

petitioner ordinarily must raise that claim in the state court,

complying with state procedural rules and exhausting available

state remedies. See Coleman, 501 U.S. at 750. When a

petitioner fails to comply with state procedural rules and a

state court dismisses a claim on those grounds, the claim is

procedurally defaulted and federal review is generally

foreclosed. Id. at 729. To overcome a procedural default, a

petitioner must demonstrate either (1) cause and resulting

prejudice, or (2) that the failure to review the claim “will

result in a fundamental miscarriage of justice.” Id. at 750.

Likewise, when a habeas petitioner fails to exhaust state

remedies for a claim, federal review is not available until the

petitioner either returns to state court with the claim or

demonstrates that such an attempt would be futile, in which case

the claim is treated as procedurally defaulted. See Breard v.

Pruett, 134 F.3d 615, 619 (4th Cir. 1998). The purpose of these

requirements, in keeping with the principles of comity and

31
federalism, is to give the state courts an opportunity to

consider a defendant’s claims and to correct constitutional

violations. See Rose v. Lundy, 455 U.S. 509, 518–19 (1982). To

exhaust a claim, the petitioner must present the state court

with “both the operative facts and the controlling legal

principles.” Winston, 592 F.3d at 549.

But if a claim is exhausted in state court and not

procedurally defaulted, then it was adjudicated on the merits

and is subject to review under the deferential standards set

forth in AEDPA’s § 2254(d). See Richter, 562 U.S. at 99.

2.

Gray cannot raise his Martinez claim unless it was

procedurally defaulted, and that question in turn depends on

whether Gray exhausted the claim in the Supreme Court of

Virginia. Unlike in Martinez, where the state court barred the

petitioner’s claim on procedural grounds, here Gray argues that

he is presenting “a new, unexhausted claim” that would be futile

to take back to the Virginia courts. Appellant’s Suppl. Br. 43.

We hold that Gray properly exhausted his ineffective-

assistance-of-trial-counsel claim in his state habeas

proceedings. Most notably, in Claim IX of his state petition,

titled “Gray’s Trial Counsel Was Ineffective At Sentencing,”

Gray argued that Dr. Cunningham, a clinical and forensic

psychologist, “could have provided expert testimony on Gray’s

32
use of PCP and other drugs at the time of the offense to show

how studies link such use in individuals such as Gray to violent

behavior and moral responsibility.” J.A. 153 (emphasis added)

(citation omitted). This statement made explicit what was

implicit elsewhere in the state habeas petition: Gray believed

that his trial counsel, during the sentencing proceeding, failed

to put before the jury adequate evidence of his voluntary

intoxication at the time of the crimes. See id. at 146

(faulting trial counsel for failing to provide “expert testimony

to explain what precipitated the drug use and the impact of the

drug use on the defendant’s moral culpability and behavior”);

id. at 146–47 (“The presentation of drug use without expert

testimony was ineffective assistance.”); id. at 147–48 (arguing

that Dr. Lisak could have explained to the jury that “drugs

became the central focus of [Gray’s] life and the primary

motivator of much of his behavior, including criminal

behavior”).

We conclude that Gray exhausted the claim because a

“reasonable fact-finder . . . could have found the facts

necessary to support the petitioner’s claim from the evidence

presented to the state courts.” Winston, 592 F.3d at 551. The

claim was therefore not procedurally defaulted.

33
 3.

Gray insists that the claim is not exhausted because his

newly proffered evidence in the district court “fundamentally

alters the nature of any claim that may have been before the

state court.” Suppl. Reply Br. at 2. But a properly exhausted

state claim is not necessarily altered by the submission of new

evidence on federal habeas review. Winston, 592 F.3d at 549.

Gray relies on Wise v. Warden, in which we held that the

petitioner’s introduction of previously undisclosed “critical

evidence” in his federal habeas petition rendered the claim

unexhausted. 839 F.2d 1030, 1034 (4th Cir. 1988). However, as

we later explained in Winston, Wise stands for the proposition

that a petitioner may not support a claim in state court with

“mere conjecture” and subsequently provide the necessary

evidentiary support for the claim on federal habeas review.

Winston, 592 F.3d at 551 (explaining that Wise “distinguish[ed]

a claim without evidentiary support from one with evidentiary

support”).

Here, Gray’s new evidence, including affidavits from a

clinical psychologist and a neuropharmacologist, has perhaps

strengthened the claim, but it has not “fundamentally altered”

it. The heart of the claim remains the same: his trial

attorneys should have done more to show how Gray’s intoxication

at the time of the crimes lessened his culpability. Moreover,

34
while Gray’s new expert affidavits provide a great deal of

information about the cumulative effects of PCP, their

conclusions necessarily remain speculative without specific

evidence of how intoxicated Gray was at the time of the crimes.

See, e.g., Suppl. J.A. 244 (“Had I been able to test Mr. Gray

close to the time of the crime, the results would likely have

shown very clear impairment.”); id. at 251 (“Mr. Gray’s memory

was inadequate for me to determine with precision his state of

mind and symptoms during the commission of these crimes. The

amnesia itself is consistent with his report of PCP use.”); id.

at 252 (“It is abundantly clear that around the time of the

crimes . . . he was using [PCP] . . . along with other drugs,

including marijuana and alcohol.”). So while the addition of

the expert affidavits certainly places greater emphasis on the

issue of Gray’s intoxication, the new evidence has not

“fundamentally altered” the claim.

In sum, because Gray exhausted his claim in the state

court, it was not procedurally defaulted. As a result, the

district court properly dismissed Gray’s Martinez claim. 10

10Because we find the Martinez claim may not be reviewed de
novo in the district court, we do not address Gray’s argument
that the district court was required to hold an evidentiary
hearing on it.

35
 III.

For the reasons given, we affirm the district court’s

dismissal of Gray’s petition.

AFFIRMED

36
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:

I agree with my friends in the majority that Ricky Jovan

Gray exhausted his claim that trial counsel were

constitutionally ineffective in failing to present evidence

during the penalty phase of his trial that he was voluntarily

intoxicated during the commission of the crimes. Furthermore,

because a “reasonable fact-finder . . . could have found the

facts necessary to support [Gray’s] claim from the evidence

presented to the state court[],” Winston v. Kelly, 592 F.3d 535,

551 (4th Cir. 2010), I agree with the majority that the district

court properly dismissed Gray’s Martinez claim. But I disagree,

respectfully, with the majority’s determination that the Supreme

Court of Virginia’s resolution of disputed issues of fact, based

on conflicting and partially unaddressed sworn affidavits,

without an evidentiary hearing, did not amount to an

unreasonable determination of the facts under 28 U.S.C. §

2254(d)(2). I therefore concur in part and dissent in part.

In his habeas petition to the Supreme Court of Virginia,

Gray presented several claims of ineffective assistance of

counsel. He grounded one such claim in his trial counsel’s

alleged failure to undertake a reasonable investigation into the

circumstances surrounding his confession. Gray alleged that,

during the course of his January 7, 2006 police interrogation,

37
he had repeatedly requested an attorney and a phone call, but

the police denied both requests, continued the interrogation,

and ultimately obtained his written confession. Gray also

asserted that he had told the police that he could not remember

many details of the crimes because of his drug use during the

day in question. Gray claimed that the police had responded by

showing him the statement of one of his accomplices, Ray

Dandridge, and by helping Gray fashion his own confession in

reliance on many of the details included in Dandridge’s

statement.

Importantly, Gray alleged in his habeas petition that he

had expressly informed his trial counsel of the details

surrounding his interrogation and confession during a February

10, 2006 meeting. Even though Gray had relayed this

information, his trial counsel allegedly failed to conduct a

reasonable investigation into these matters. Had his trial

counsel adequately investigated the circumstances surrounding

Gray’s interrogation and confession, Gray asserted, his trial

counsel could have moved to suppress his confession or used the

results of the investigation to impeach the testimony of

Detective Howard Peterman during trial. *

*Detective Peterman, of the Philadelphia Police Department,
testified at length at trial about the circumstances that led to
his questioning of Gray and the substance of Gray’s written
(Continued)
38
 Gray supported his ineffective assistance of counsel claim

and his recollection of the January 7, 2006 police interrogation

and confession with the affidavit of Melvin B. Knight. Knight

was an investigator with the Office of the Capital Defender of

the Central Region of Virginia and was tasked with assisting

Gray’s trial counsel in preparing Gray’s defense. Prior to his

employment with the Office of the Capital Defender, Knight was a

law enforcement officer with the City of Richmond Police

Department for more than twenty-five years.

In his affidavit, Knight recounted his February 10, 2006

interview with Gray and explained that Gray had expressly stated

that he had asked for an attorney and a phone call during his

questioning by police. Knight also remembered Gray mentioning

that he could not remember many details of the crimes because he

had been high on a combination of marijuana, ecstasy, and PCP at

the time the crimes were committed. Gray also indicated,

according to Knight, that he had shared this information with

the police. Gray then told Knight that, because he had been

unable to remember many details of the crimes during his

interrogation, the police had assisted Gray in crafting a

confession. Detective Peterman acknowledged that he informed
Gray that Dandridge was also in custody at police headquarters,
but Detective Peterman asserted that, after being made aware of
his rights, Gray volunteered to tell his side of the story and
did so without learning the details of Dandridge’s confession.

39
written statement based upon the statement prepared by

Dandridge. In short, a plausibly credible witness offered sworn

facts more than trivially corroborative of Gray’s allegations

supporting a claim of ineffective assistance.

As the majority opinion recounts, the Warden filed a motion

to dismiss Gray’s habeas petition, specifically arguing that an

evidentiary hearing was neither necessary nor permitted. In

support of his motion to dismiss, the Warden submitted the

affidavit of Gray’s trial counsel, Jeffrey L. Everhart and

Theodore D. Bruns. The attorneys asserted that Gray had never

told them that he had been fed details of the crime. Further,

the attorneys explained that they had interviewed each police

officer who questioned Gray on January 7, 2006, including

Detective Peterman, and each officer confirmed that Gray had

confessed voluntarily and without acquiring information from

Dandridge’s confession. The attorneys also spoke of Gray’s

insistence that PCP was not to blame for his criminal actions

and that he had known what he was doing. The attorneys,

however, did not directly address Gray’s assertion that his

heavy drug use during the day in question left him unable to

remember many of the crimes’ details during his interrogation.

On March 4, 2011, the Supreme Court of Virginia granted the

Warden’s motion to dismiss the relevant ineffective assistance

of counsel claim without affording Gray an evidentiary hearing.

40
Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275 (Va.

2011). In ticking through Gray’s several habeas claims, the

Virginia Supreme Court explained that:

The record, including the affidavit of counsel,
demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the
murders and that “PCP could not be to blame.”
Furthermore, counsel spoke to every officer involved
in petitioner’s arrest, including Detective Peterman,
and determined that petitioner was not provided any
details from Dandridge’s statement before or during
his statement to the police. The affidavit of counsel
also demonstrates that petitioner never informed
counsel that Detective Peterman had “fed” him the
details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find
any evidence that would have supported a motion to
suppress petitioner’s statements to police.

. . .

The record, including the trial transcript,
petitioner’s statement to the police, and the
affidavit of counsel, demonstrates that petitioner
understood his constitutional rights and voluntarily
agreed to speak to the police about the murders and
that counsel looked for but could not find any
evidence that would have supported a motion to
suppress petitioner’s statement to the police.

Id. at 283-84.

After the Supreme Court of Virginia dismissed his habeas

petition, Gray sought federal habeas relief. He based his

federal challenge in part on the Supreme Court of Virginia’s

decision to dismiss his ineffective assistance of counsel claim

without affording him an evidentiary hearing and the opportunity

to develop a factual record. Gray asserted that, because the

41
Supreme Court of Virginia presumably ignored the Knight

affidavit and resolved related factual disputes regarding his

ineffective assistance of counsel claim without the benefit of

an evidentiary hearing, the dismissal amounted to an

unreasonable determination of the facts under 28 U.S.C. §

2254(d)(2) of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”).

While it is a close question, I am constrained to agree

with Gray. As the district court aptly observed, trial

counsel’s affidavit and Detective Peterman’s trial testimony,

“differed sharply” from Knight’s affidavit and the details

provided in Gray’s verified petition. Gray v. Pearson, No.

1:11-cv-630, 2012 WL 1481506, at *11 (E.D. Va. Apr. 27, 2012).

Despite this sharply conflicting evidence, the Supreme Court of

Virginia effectively adopted the affidavit of Gray’s trial

counsel as fact absent any apparent analysis and without first

providing Gray “any opportunity . . . to develop a factual

record through discovery with compulsory process or to test

disputed issues of fact through the type of adversarial process

historically thought essential to the truth-finding function of

a court.” Id.

The district court and the majority correctly recognize

that AEDPA’s § 2254(d) restriction creates a “highly deferential

standard for evaluating state-court rulings.” Cullen v.

42
Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398 (2011).

However, the Supreme Court has implied that a state court’s

fact-finding may be unreasonable when the court “had before it,

and apparently ignored,” evidence supporting a petitioner’s

claim. See Miller-El v. Cockrell, 537 U.S. 322, 346 (2003).

While the majority is content to assume that the Supreme Court

of Virginia appropriately evaluated the Knight affidavit, which

directly conflicted with the trial testimony of Detective

Peterman and the affidavit of Gray’s trial counsel, there is

nothing in the opinion to suggest that the Supreme Court of

Virginia considered Knight’s affidavit, much less engaged in the

difficult process of weighing the credibility of the affiants on

a conflicting record.

The majority notes that it is troubled by the Supreme Court

of Virginia’s observable preference for trial counsel’s

affidavit as compared to the Court’s treatment of Knight’s and

suggests that, despite not mentioning the Knight affidavit, the

Supreme Court of Virginia assuredly took the affidavit into

consideration because it ruled on the Warden’s motion to strike

the affidavit. The Court’s ruling on the Warden’s motion to

strike the affidavit, however, comes in a singular and

unsupported sentence at the conclusion of its opinion dismissing

Gray’s ineffective assistance of counsel claim, and the motion

to strike the Knight affidavit was incorporated into a broader

43
motion to strike that concerned several of the affidavits

proffered by Gray. While such context may be sufficient in

certain circumstances to support the resolution of disputed

issues of fact by a state court, based on conflicting sworn

affidavits, without an evidentiary hearing, the facts presented

in the Knight affidavit stood in direct conflict with those

offered by trial counsel and the affidavit was at the heart of

Gray’s ineffective assistance of counsel claim. Accordingly,

while I believe that “[a] rational fact-finder might discount

[the affidavit] or, conceivably, find it incredible, . . . no

rational fact-finder would simply ignore” the affidavit or fail

to address it entirely. See Taylor v. Maddox, 366 F.3d 992,

1006 (9th Cir. 2004).

Because the Supreme Court of Virginia—in resolving disputed

issues of fact, based on conflicting and partially unaddressed

sworn affidavits, without an evidentiary hearing—made an

unreasonable determination of the facts under 28 U.S.C. §

2254(d)(2), I would vacate the judgment of the district court as

to Gray’s ineffective assistance of counsel claim and remand for

an evidentiary hearing and the development of a full factual

record.

Of course, my difference with the majority does not

remotely reflect any view of trial counsel. With a few

exceptions spread in reported cases, defense counsel in capital

44
cases perform conscientiously and in a manner entirely faithful

to the noble ideals of the legal profession. Despite this

truism, however, such counsel are not at all surprised or

bothered by the fact that, given the stakes, their judgments and

their trial performances will likely come under attack by fellow

counsel in subsequent post-conviction proceedings. This may

entail, as it should have in this case, subjecting such

conscientious counsel to the unpleasantness of cross-

examination. But our adversary system in cases involving the

highest of stakes—life or death—should admit of nothing less.

45