Kenneth L. Wilson v. Fred W. Greene, Warden, Mecklenburg Correctional Center

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge NIEMEYER joined. Judge MICHAEL wrote an opinion concurring in part and concurring in the judgment.

OPINION

WILKINSON, Chief Judge:

Kenneth L. Wilson raises various claims regarding his mental capacity at the time of Jacqueline Stephens’ murder. Wilson was sentenced to death for that offense. He appeals the district court’s dismissal of his amended petition for a writ of habeas corpus. We affirm the district court’s judgment.

I.

On March 27, 1993, Jacqueline Stephens was found naked, bound in a spread-eagle fashion to her bed, with multiple stab wounds in her chest, neck, cheek, eyebrow, and arm. The events that led to this tragedy began at approximately 3:00 a.m. that morning when Wilson entered Stephens’ home in Newport News, Virginia. At knifepoint, he forced Stephens, her twelve year-old daughter Alto-mika, and fourteen year-old Takeshia Banks upstairs. Wilson ordered Altomika and Takeshia into a bedroom and took Jacqueline into her own bedroom. While Wilson and Jacqueline were in her bedroom, Altomika heard her mother say “Kenny, why you doing this to me? I go with Pinkey [Altomika’s father], why you doing this to me?” Approximately twenty-five minutes later, Wilson and Jacqueline returned to the bedroom where the girls were. At Wilson’s request, Jacqueline told the girls not to say anything; she then took a shower. While Jacqueline was showering, Wilson ordered Takeshia to disrobe, tied both girls to a bed, and blindfolded them. Wilson, while naked, proceeded to stab both girls, cutting them in the neck.

After Takeshia screamed, Jacqueline confronted Wilson in the hallway. A struggle between Wilson and Jacqueline then ensued, and Altomika thought she heard her mother fall down the stairs. Altomika and Takeshia escaped their bindings and barricaded the bedroom door, but Wilson soon returned and threatened to kill Jacqueline if the girls did not open it. The girls complied, and Wilson secured their bindings and blindfolded them again. He then left the room briefly but soon returned and taunted the blindfolded girls with the knife. Wilson left again, yelling at Jacqueline to find her car keys. Alto-mika heard her mother begin to scream then suddenly stop screaming. Wilson returned once more, threatened to kill the girls, then withdrew. A neighbor saw Wilson depart in Jacqueline’s vehicle at approximately 6:30 a.m. Shortly thereafter, the police found Jacqueline’s naked body covered with blood and tied to her bed. Pubic hairs and a dried white substance which appeared to be semen were observed on her body.

A few hours later, police found Wilson in a trash dumpster, acting “peculiar.” Blood tests taken at a hospital the next day revealed cocaine and opiates in his system. He also was experiencing rhabdomyolysis, a condition involving the breakdown of muscle tissue produced by severe intoxication with certain drugs, including cocaine.

Wilson was charged with murder during the commission of attempted rape, attempted rape, grand larceny, and several counts of abduction and malicious wounding. Wilson’s *400original trial counsel requested a psychological evaluation to determine both Wilson’s competency to stand trial and his sanity at the time of-the offense. On May 10, 1993, Dr. Don Killian, a court-appointed clinical psychologist, reported that Wilson was competent to stand trial. In a separate report, with the heading “for defense attorney only,” Dr. Killian also reported that Wilson was sane at the time of the offense. In late October, Wilson’s new trial counsel filed a “Motion for Neurological, Psychological, Psychiatric and Physical Evaluation of the Defendant.” The trial court granted the motion on October 27 and appointed Dr. Killian to conduct the evaluation. Dr. Killian again met with Wilson on November 5, but this time Wilson declined to discuss “his thoughts, feelings, or actions” around the time when the crime occurred and stated that his attorneys had advised him not to “discuss the details of these activities with anyone.” At a November 15 hearing, Wilson confirmed that he did not want to speak to Dr. Killian.

After the trial, at which Wilson testified, a jury convicted him on all counts. Following the sentencing phase, the jury recommended a death sentence based on findings of future dangerousness and vileness, and the trial court later sentenced him to death. On appeal, the Virginia Supreme Court upheld the conviction and sentence. Wilson v. Commonwealth, 249 Va. 95, 452 S.E.2d 669 (1995). The conviction became final on October 2,1995, when the United States Supreme Court denied certiorari. Wilson v. Virginia, 516 U.S. 841, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995). The Virginia Supreme Court later denied Wilson’s petition for a writ of habeas corpus. After the district court subsequently denied his federal petition, Wilson brought this appeal. Since Wilson filed his federal petition in 1997, it is governed by the noncapital provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Green v. French, 143 F.3d 865, 868-69 (4th Cir.1998).

II.

Wilson alleges several trial errors relating to his mental health. He attributes these eiTors to two parties: his court-appointed mental health expert and his trial counsel. Wilson claims that Dr. Killian performed an inadequate evaluation of his sanity at the time of the offense. He also blames trial counsel for not developing evidence of his insanity and for not requesting a confidential mental health evaluation before trial. In support of these claims, Wilson relies primarily on the report of Dr. Brad Fisher, a clinical forensic psychologist appointed by the district court to assist with the preparation of Wilson’s federal habeas petition. Dr. Fisher met with Wilson, examined Wilson’s medical and family history, and reviewed portions of the transcript from Wilson’s trial. Dr. Fisher found “the evidence is suggestive but not conclusive about the existence of a temporary condition that might have led to a plea of insanity.” However, he concluded there was “little evidence of a permanent major thought disorder, psychosis, or major organic impairment.” 1

A.

We first consider Wilson’s arguments relating to the evaluation performed by Dr. Killian. In Ake v. Oklahoma, the Supreme Court held that under some circumstances a state must assure an indigent defendant “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Wilson aims his attack solely on whether Dr. Killian conducted an “appropriate” examination. He contends that, had Dr. Killian conducted one, he would have uncovered the information discussed in Dr. Fisher’s report.

*401We disagree. The Constitution does not entitle a criminal defendant to the effective assistance of an expert witness. To entertain such claims would immerse federal judges in an endless battle of the experts to determine whether a particular psychiatric examination was appropriate. See Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir.1990); Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir.1990). Furthermore, it would undermine the finality of state criminal convictions, which would constantly be subject to psychiatric reappraisal years after the trial had ended. Harris, 949 F.2d at 1517-18; Silagy, 905 F.2d at 1013.

This circuit consistently has “rejected the notion that there is either a procedural or constitutional rule of ineffective assistance of an expert witness, rather than ineffective assistance of counsel.” Pruett v. Thompson, 996 F.2d 1560, 1573 n. 12 (4th Cir.1993); see also Poyner v. Murray, 964 F.2d 1404, 1418 (4th Cir.1992); Waye v. Murray, 884 F.2d 765, 766-67 (4th Cir.1989) (per curiam). For example, the defendant in Waye claimed that his psychiatrist had not performed adequately because he had failed to emphasize Waye’s diminished capacity in his trial testimony. We rejected this claim and observed:

[i]t will nearly always be possible in cases involving the basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural demands of a fair trial and the constitution require.

884 F.2d at 767.

Waye thus squarely forecloses Wilson’s argument to the extent that he grounds it in a right to effective assistance from Dr. Killian. Wilson’s attempt to locate such a right in the Ake decision also fails. Although Ake refers to an “appropriate” evaluation, we doubt that the Due Process Clause prescribes a malpractice standard for a court-appointed psychiatrist’s performance. Rather, the decision in Ake reflects primarily a concern with ensuring a defendant access to a psychiatrist or psychologist, not with guaranteeing a particular substantive result. See Parker v. Norris, 64 F.3d 1178, 1185 (8th Cir.1995); Harris, 949 F.2d at 1516-17; Henderson v. Dugger, 925 F.2d 1309, 1316 & n. 23 (11th Cir.1991); Granviel v. Lynangh, 881 F.2d 185, 192 (5th Cir.1989). The defendant in Ake, unlike Wilson, did not receive any evaluation of his sanity at the time of the offense. 470 U.S. at 72, 105 S.Ct. 1087. The Court distinguished Ake’s situation from two earlier decisions where the defendants, like Wilson, had received such evaluations and, thus, were not deprived of due process. Id. at 85, 105 S.Ct. 1087 (distinguishing United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953), and McGarty v. O’Brien, 188 F.2d 151 (1st Cir.1951)). In this context, the precise holding in Ake was simply that the failure to provide any evaluation did not comport with the Due Process Clause. See, e.g., id. at 74, 105 S.Ct. 1087 (describing holding as requiring a state to “provide access to a psychiatrist’s assistance”) (emphasis added); id. at 83, 105 S.Ct. 1087 (describing the Court’s concern “that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed”) (emphasis added); cf. Tuggle v. Netherland, 516 U.S. 10, 12, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995) (per curiam) (describing holding in Ake as requiring the “assistance” of a psychiatrist).

The above comments serve to illuminate our differences with the partial concurring opinion. That opinion would hold that the Due Process Clause guarantees Wilson the right to a thorough psychiatric examination that meets “the minimum standard of care set by the clinical psychology profession.” Post at 409 (Michael, J., concurring in part and concurring in the judgment). Drawing from psychiatric texts, the partial concurrence insists that due process requires an exam that includes “a careful analysis of Wilson’s medical records, compilation of an accurate social history (including any history of mental illness or substance abuse), and a complete mental and physical examination (employing whatever diagnostic tests were appropriate under the circumstances).” Post at 409, n. 3.

*402We cannot accept this position. As an initial matter, it reads more into the phrase “appropriate [psychiatric] examination” in Ake, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), than that decision will bear. Significantly, there is no mention in Ake of the critical language advanced by the partial concurrence, namely the entitlement to some federally supervised standard of psychiatric care.

Moreover, although the partial concurrence purports to distinguish between “an appropriate examination from the psychiatrist” and a “general right to effective assistance of a psychiatrist,” post at 414, they turn out to be one and the same. Indeed, the partial concurrence acknowledges that the basic inquiry is a malpractice determination. See post at 414 (“[T]he right to counsel deals with lawyer malpractice while the right to a psychiatrist deals with psychiatrist malpractice.”) (emphasis omitted). It is easy to see where this position would lead. “The ultimate result would be a never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist’s diagnosis.” Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). Indeed, the partial concurrence’s use of Dr. Fisher’s report to pick at Dr. Killian’s earlier conclusions demonstrates the psychiatric quagmire in which the recognition of this new constitutional claim would immerse us.

Finally, we are reluctant to permit the purely hypothetical horror story advanced by the partial concurrence to establish a broad, freestanding constitutional claim to the effective assistance of a psychiatrist. The Due Process Clause does not require this further transfer of function from its traditional state court locus to federal collateral review. “A conclusion to the contrary would require ... federal courts to engage in a form of ‘psychiatric medical malpractice’ review ... of state court judgments.” Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). It is clear that Wilson committed the acts which resulted in his capital conviction. The path lit by the partial concurring opinion refocuses the federal habeas inquiry from actual to legal innocence to a much greater extent than we are willing to do. See Calderon v. Thompson, — U.S.-,- -, 118 S.Ct. 1489, 1502-03, 140 L.Ed.2d 728 (1998) (distinguishing between claims of actual and legal innocence).

Even if Ake’s use of the term “appropriate” suggests that an examination must satisfy some minimal level of professional competence, Dr. Killian has clearly satisfied it here. In May 1993, he interviewed Wilson for approximately ninety minutes to determine his competency to stand trial and his sanity at the time of the offense. At this meeting, he explored Wilson’s educational background, medical history, and criminal record. Dr. Killian also evaluated Wilson’s cognitive processes and understanding of the legal proceedings against him. Based on Wilson’s criminal records and this interview, Dr. Killian concluded that Wilson was competent to stand trial and was not suffering from a significant mental disease or defect at the time of the offense. In November 1993, Dr. Killian again met with Wilson and discussed his general psychiatric condition, background, and current status. Though Dr. Fisher reviewed more records than Dr. Killi-an and explored Wilson’s mental state in greater detail, his deeper exploration into Wilson’s past does not demonstrate that Dr. Killian’s examination was inappropriate.

Finally, Wilson himself appears to have been partly responsible for the difficulties that Dr. Killian encountered in conducting a more complete examination. During the November 1993 meeting, according to Dr. Killi-an, Wilson refused to discuss “any of his thoughts, feelings, or actions during the time frame which contained the events which ultimately led to charges against him.” At a hearing shortly before trial, Wilson again made clear to the court that he did not desire an evaluation. During the hearing, the following colloquy took place between Wilson and the judge:

THE COURT: Do you desire the psychiatric or psychological evaluation which you originally indicated to your lawyers that you did desire? Are you giving that up now?
THE DEFENDANT: Yes, sir.

*403Following this exchange, in an abundance of caution the trial court declared a brief recess so that Wilson could consult with his àttor-neys about this choice. After that conference, Wilson reaffirmed his desire not to speak with Dr. Killian:

THE COURT: All right, Mr. Wilson. What is your pleasure with respect to the psychiatric or psychological evaluation?
THE DEFENDANT: I do not want to speak to him.
THE COURT: You do not want to speak to Doctor Killian, correct?
THE DEFENDANT: Correct.

Dr. Killian can hardly be faulted for not conducting a more thorough evaluation when Wilson repeatedly, and after consultation with his lawyers, declined to discuss matters further with him. Thus even if Ake provided some standard for an appropriate evaluation, Dr. Kilhian's evaluation of Wilson satisfied it.

B.

Wilson also attributes the failure to develop a more complete mental health defense to his trial counsel. Wilson alleges two basic errors constituting ineffective assistance. First, he claims that trial counsel inadequately investigated possible defenses thatWilson was insane or lacked the requisite mens rea to commit the crimes. Second, he argues that trial counsel's October 1993 request for a mental health evaluation was delinquent and deprived him of the benefit of a conflden-tial report. Like the district court, we find both of these claims to be meritless.

To prevail on his claims of ineffective assistance, Wilson must satisfy two well-established requirements. First, he "must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Satcher v. Pruett, 126 F.8d 561, 572 (4th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 5.95, 139 L.Ed.2d 431 (1997). Our review of counsel's performance in this regard is highly deferential. Stricki and, 466 U.S. at 689, 104 S.Ct. 2052; Truesdale v. Moore, 142 F.3d 749 (4th Cir.1998). Second, Wilson also must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Satcher, 126 F.3d at 572. Unless Wilson satisfies both requirements, his ineffective assistance claims must fail.

Wilson's trial counsel was not ineffective in declining to investigate his mental health defenses or to develop them at trial. The decision not to pursue this line of de-lease more fully was a reasonable one. In May, counsel had received Dr. Killian's report concluding that Wilson was not mentally ill at the time of the offense. To be reasonably effective, counsel was not required to second-guess the contents of this report. See Pruett, 996 F.2d at 1574; Poyner, 964 F.2d at 1419; Washington v. Murray, 952 F.2d 1472, 1482 (4th Cir.1991). Having received Dr. Killian's report, counsel understandably decided "not to spend valuable time pursuing what appeared to be an unfruitful line of investigation." Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir.1991). Indeed, Wilson told counsel that someone from a neighborhood crack house had committed the murder, and counsel made every effort to locate and interview any witness that might have assisted with such a defense. Counsel thus made a diligent effort to pursue promising lines of investigation, and Wilson's present attempt to challenge his counsel's decision not to investigate mental health issues more fully is "a product of hindsight and fails to address the facts reasonably relied upon by counsel at the time." Roach v. Martin, 757 F.2d 1463, 1478 (4th Cir.1985) (citation omitted).2

Counsel also reasonably chose not to develop a mental health defense at trial. *404Decisions about what types of evidence to introduce “are ones of trial strategy, and attorneys have great latitude on where they can focus the jury’s attention and what sort of mitigating evidence they can choose not to introduce.” Pruett, 996 F.2d at 1571 n. 9 (citation omitted); see also Bunch, 949 F.2d at 1364. Here, at Wilson’s insistence, counsel presented a story at trial that Wilson had not committed the crime, and Wilson testified to this effect. To present simultaneously a defense that Wilson was insane or lacked the mens rea to commit the crime would have undermined Wilson’s requested strategy and undercut his own credibility.

Furthermore, even if counsel’s investigation or presentation had been deficient in some regard, it was not prejudicial. Dr. Fisher’s report offers only limited support for Wilson’s present theory that he was insane at the time of the offense or lacked the requisite mens rea to commit an intentional crime. Dr. Fisher concluded that “there is little evidence of a permanent major thought disorder, psychosis, or major organic impairment.” In this respect, his opinion tracks the May 1993 opinion of Dr. Killian, who found that Wilson “was not suffering from a significant mental disease or defect, psychosis, major organic impairment” or other similar malady at the time of the offense. Even where Dr. Fisher’s opinions vary from Dr. Killian’s, his endorsement of Wilson’s present theory is qualified at best. Though Dr. Fisher believed that Wilson’s abusive upbringing and his use of intoxicants around the time of the offense may have contributed to a temporary psychosis, he found such evidence to be merely “suggestive but not conclusive.” In light of Dr. Fisher’s partial agreement with Dr. Killian and his inconclusive judgment about whether Wilson was temporarily insane, counsel’s failure to introduce this evidence is hardly “sufficient to undermine confidence in the outcome” of Wilson’s trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir.1995); Poyner, 964 F.2d at 1420-21; Washington, 952 F.2d at 1482.3

III.

Wilson next presses two claims that he is actually innocent of the crimes for which the jury convicted him. He maintains that Dr. Fisher’s report demonstrates that his voluntary intoxication at the time of the offense produced a temporary insanity. He also contends that the report shows his level of intoxication was so severe that he lacked the mens rea to commit an intentional crime. The district court found both of these claims to be defaulted because Wilson failed to raise them in state court. Wilson now asserts that he raises these claims simply as “‘gateway[s]’ through which he may pass to argue the merits of his defaulted claims.” Satcher, 126 F.3d at 570.

Claims of actual innocence, whether presented as freestanding ones, see Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), or merely as gateways to excuse a procedural default, see Schlup v. Delo, 513 U.S. 298, 317, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), should not be granted casually. The Supreme Court recently emphasized “the narrow scope” of this type of claim. Calderon, —— U.S. at ——, 118 S.Ct. at 1503 (quoting Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)) (other citation omitted); see also Turner v. Jabe, 58 F.3d 924, 931-32 (4th Cir.1995). The claim “must be based on reliable evidence not presented at trial.” Calderon, — U.S. at-, 118 S.Ct. at 1503 (citing Schlup, 513 U.S. at 324, 115 S.Ct. 851). A reviewing court must evaluate the *405new evidence alongside any other admissible evidence of the defendant’s guilt, see Bousley v. United States, — U.S.-,-, 118 S.Ct. 1604, 1611-12, 140 L.Ed.2d 828 (1998), and may grant relief only where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Evaluated under this “demanding” standard, see Calderon, — U.S. at-, 118 S.Ct. at 1503, Wilson’s claims of actual innocence must fail.

We cannot accept Wilson’s claim that he is actually innocent because his voluntary intoxication caused him to become temporarily insane. Voluntary intoxication generally does not provide a defense unless it induces a permanent insanity. See Little v. Commonwealth, 163 Va. 1020, 175 S.E. 767, 769 (1934); Downing v. Commomoealth, 26 Va.App. 717, 496 S.E.2d 164, 166 (1998). Here Dr. Fisher found “little” evidence that Wilson suffered from a “permanent” disorder and merely found it possible that Wilson might have been suffering from a “temporary condition” at the time he committed the offense. Even had a juror been apprised of Dr. Fisher’s report, he would have had almost no reason to conclude that voluntary intoxication had produced a permanent insanity in Wilson.

Wilson’s claim that he lacked the mens rea to commit an intentional crime is equally unavailing. Virginia does recognize that “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.” Wright v. Commonwealth, 234 Va. 627, 363 S.E.2d 711, 712 (1988) (citations omitted). Nonetheless, a l'easonable juror aware of Dr. Fisher’s assessments still could have found Wilson guilty beyond a reasonable doubt. The jury heard Altomika and Takeshia testify how Wilson demanded that they go upstairs, how he separated them from Jacqueline, how he threatened to kill-Jacqueline if the girls did not open the door after escaping their bindings, and how he ordered Jacqueline to find her car keys. The jury also heard testimony that Wilson drove away in Jacqueline’s car. A reasonable juror surely could find this course of conduct to be the product of a mind capable of deliberation and premeditation. See Mathenia v. Delo, 99 F.3d 1476, 1481-82 (8th Cir.1996) (rejecting actual innocence claim that defendant was incapable of deliberation), cert. denied sub nom. Mathenia v. Bowersox, — U.S.-, 117 S.Ct. 2518, 138 L.Ed.2d 1020 (1997); Nave v. Delo, 62 F.3d 1024, 1033 (8th Cir.1995) (same). Furthermore, the jury already was aware of Wilson’s intoxication. It heard a police officer, who found Wilson shortly after the crime, testify that Wilson was acting peculiar and suggest that Wilson might have been “high.” It also heard Wilson testify that he had been at a bar with his brother before the offense and had gone to Jacqueline’s home to smoke some Kooleys—ciga-rettes laced with cocaine. In light of the fact that the jury found Wilson guilty despite its awareness of his intoxication, Wilson has failed to show that, even with Dr. Fisher’s report, it is more likely than not that no reasonable juror would have convicted him. See Nave, 62 F.3d at 1033. Thus, Wilson’s claims of actual innocence must fail.

IV.

Wilson next claims that there was insufficient evidence to convict him of attempted rape. Since Wilson’s indictment listed attempted rape as the predicate offense to capital murder, Wilson uses this claim indirectly to attack his death sentence as well. Finding ample evidence to support the conviction for attempted rape, both the Virginia Supreme Court on direct appeal and the federal district court on collateral review rejected this claim.

Though claims of insufficient evidence are cognizable on collateral review, a federal court’s review of such claims is “sharply limited.” Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (plurality opinion); see also Evans-Smith v. Taylor, 19 F.3d 899, 905 (4th Cir.1994) (“The standard is obviously rigorous.”). Federal review of the sufficiency of the evidence to support a state conviction is not meant to consider anew the jury’s guilt de*406termination or to replace the state’s system of direct appellate review. Wright, 505 U.S. at 292, 112 S.Ct. 2482. Thus, a defendant is entitled to relief only if “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (footnote omitted); see also George v. Angelone, 100 F.3d 353, 357 (4th Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 854, 136 L.Ed.2d 829 (1997).

The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781. In Virginia, the elements of attempted rape include a direct but ineffectual act toward its consummation and an intent to engage in sexual intercourse. E.g., Fortune v. Commonwealth, 14 Va.App. 225, 416 S.E.2d 25, 27 (1992); Chittum v. Commonwealth, 211 Va. 12, 174 S.E.2d 779, 781 (1970). In this case, Wilson has failed to ■ show that no rational trier of fact could find him guilty of attempted rape.

Sufficient evidence supported the jury’s conclusion that Wilson took an overt act toward consummation of the rape. On direct appeal, the Virginia Supreme Court found that Wilson’s nudity, his isolating Jacqueline Stephens from the young girls, his forcibly binding Jacqueline naked to her bed, and the presence of what appeared to be pubic hairs and semen on Jacqueline’s body satisfied the overt act requirement. 452 S.E.2d at 674. Wilson challenges this finding on the ground that the Commonwealth failed to introduce evidence establishing that the white substance observed on Jacqueline’s body was in fact semen and failed to prove that the pubic hairs recovered at the scene belonged to him. We are unpersuaded. Wilson’s argument ignores the fact that a federal court reviewing the sufficiency of the evidence on collateral attack must consider the evidence in the light most favorable to the prosecution and must presume that the jury resolved any conflicts over the historical facts in the Commonwealth’s favor. Wright, 505 U.S. at 296, 112 S.Ct. 2482; Jackson, 443 U.S. at 319, 99 S.Ct. 2781. In finding Wilson guilty of attempted rape, the jury clearly could infer that the white substance actually was semen and that the pubic hairs belonged to him.

Moreover, such physical evidence is not even necessary to show that Wilson took a direct act toward raping Jacqueline. See Fortune, 416 S.E.2d at 28; Granberry v. Commonwealth, 184 Va. 674, 36 S.E.2d 547, 548 (1946). In Fortune, for example, the court found sufficient evidence of an overt act when the defendant removed his pants, exposed himself, forced the victim into a bedroom, and touched her breast during a struggle. 416 S.E.2d at 28. On this record, a jury could find that Wilson, like the defendant in Fortune, removed his clothes, exposed himself, forced Jacqueline into the bedroom and touched her at some point dim-ing the encounter, thereby committing a direct but ineffectual act in furtherance of raping her.

Sufficient evidence likewise supported the jury’s finding that Wilson had formed the requisite intent to rape. The Virginia Supreme Court concluded that Wilson’s actions along with Jacqueline’s statement “Kenny, why you doing this to me? I go with Pinkey, why you doing this to me?” supported a finding of intent to rape. 452 S.E.2d at 674. Wilson essentially argues that this circumstantial evidence does not support a finding of intent to rape but, instead, shows only an intent to commit murder. We disagree. “In cases involving an attempt to commit a crime, the fact finder is often allowed broad latitude in determining the specific intent of the actor.” Fortune, 416 S.E.2d at 27 (citing Ridley v. Commonwealth, 219 Va. 834, 252 S.E.2d 313, 314 (1979)). A defendant’s intent to commit rape may be shown through circumstantial evidence, including the defendant’s conduct and statements. Fortune, 416 S.E.2d at 27; Green v. Commonwealth, 223 Va. 706, 292 S.E.2d 605, 608-09 (1982); see also Epperly v. Booker, 997 F.2d 1, 6 (4th Cir.1993); Inge v. Procunier, 758 F.2d 1010, 1013 (4th Cir.1985). In this case, in addition to the physi cal evidence, the jury heard testimony that Wilson was naked, took Jacqueline into a bedroom, and ordered Takeshia Banks to disrobe. Such conduct and statements are *407entirely “consistent with preparation for sexual intercourse” and “permitted the trier of fact to infer that [Wilson] was attempting to rape [Jacqueline].” Fortune, 416 S.E.2d at 27-28; see also Green, 292 S.E.2d at 608-09; Chittum, 174 S.E.2d at 781; Ingram v. Commonwealth, 192 Va. 794, 66 S.E.2d 846, 851 (1951); cf. Tharrington v. Commonwealth, 2 Va.App. 491, 346 S.E.2d 337, 339 (1986).

Wilson argues that, under Virginia law, when the state’s proof of intent is entirely circumstantial, it must exclude every reasonable hypothesis of innocence. See Rogers v. Commonwealth, 242 Va. 307, 410 S.E.2d 621, 627 (1991). But we have expressly declined to “adopt Virginia’s stricter standard of review for sufficiency of the evidence” on collateral attack and held that the state was not required to exclude every reasonable hypothesis of innocence. Inge, 758 F.2d at 1014; see also Jackson, 443 U.S. at 326, 99 S.Ct. 2781 (noting that prosecution not “under an affirmative duty to rale out every hypothesis except that of guilt beyond a reasonable doubt”). Thus, Wilson has failed to show that no rational trier of fact could have found proof that he was guilty of attempted rape beyond a reasonable doubt, and the district court properly rejected this claim. See Hawkins v. Lynaugh, 844 F.2d 1132, 1136 (5th Cir.1988) (sufficient evidence of attempted rape); cf. Holdren v. Legursky, 16 F.3d 57, 62-63 (4th Cir.1994) (sufficient evidence of sexual assault).

V.

Lastly, Wilson argues that the trial court should have instructed the jury about the actual effects of his life sentence. Specifically, he maintains the jury should have known that he would not be eligible for parole for twenty-five years. He claims that both the Eighth Amendment’s guarantee against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process entitled him to such an instruction. We disagree.

We previously rejected this precise argument in Peterson v. Murray. 904 F.2d 882 (4th Cir.1990). Peterson held that a defendant was not constitutionally entitled to inform the jury that he would have been ineligible for parole for twenty years. Id. at 886-87. The plaintiff in Peterson, like Wilson, pressed this argument under both the Cruel and Unusual Punishment and Due Process Clauses. Peterson extended our earlier holding in Turner v. Bass, 753 F.2d 342, 353-54 (4th Cir.1985), rev’d on other grounds sub nom. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), which had rejected a similar argument based solely on the Due Process Clause.

Wilson attempts to evade the ruling in Peterson by arguing that the legal landscape fundamentally changed after the Supreme Court’s decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). In Simmons, the Supreme Court held that a capital defendant, as a matter of due process, should be permitted to inform the jury that he is parole ineligible if the state argues that he presents a future danger. See id. at 171, 114 S.Ct. 2187 (plurality opinion); id. at 178, 114 S.Ct. 2187 (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in the judgment); see also O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 1971, 138 L.Ed.2d 351 (1997). The plurality opinion in Simmons repeatedly stressed the central importance of a defendant’s parole ineligibility to its holding. See, e.g., 512 U.S. at 163-64, 114 S.Ct. 2187. And Justice O’Connor’s concurring opinion, which was joined by two other justices and “pro-vid[ed] the dispositive votes necessary to sustain [the judgment],” ODell, 117 S.Ct. at 1974, observed that the Constitution did not require an instruction for parole-eligible defendants. See Simmons, 512 U.S. at 176, 114 S.Ct. 2187 (“In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact.”).

Simmons, thus, has not altered our decisions in Peterson and Turner to the extent they held that the Constitution does not entitle defendants to an instruction about when they would become eligible for parole. Simmons did not address whether the Eighth Amendment required an instruction on parole ineligibility, see 512 U.S. at 162 n. 4, 114 S.Ct. 2187, so it can hardly be read to require such an instruction for parole-eligible defen*408dants. With respect to the Due Process Clause, this circuit has observed that Justice O’Connor’s opinion, which expressly confined the case to situations of parole ineligibility, should be read as expressing its essential holding. See Arnold v. Evatt, 113 F.3d 1352, 1363 n. 65 (4th Cir.1997), cert. denied sub nom. Arnold v. Moore, - U.S. -, 118 S.Ct. 715, 139 L.Ed.2d 655 (1998); Townes v. Murray, 68 F.3d 840, 849 (4th Cir.1995). In Arnold, consistent with this reading of Simmons, we held that a defendant was not entitled to inform the jury about the actual effects of a life sentence or death sentence since, like Wilson, he was not parole ineligible. 113 F.3d at 1363. Other courts share our reading of Simmons and hold that it does not entitle a defendant to an instruction about when he would become eligible for parole. See, e.g., Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir.1995); Allridge v. Scott, 41 F.3d 213, 222 (5th Cir.1994); Ingram v. Zant, 26 F.3d 1047, 1054 n. 5 (11th Cir.1994) (per curiam). In sum, neither the Eighth Amendment nor the Due Process Clause requires the instruction on parole eligibility sought by Wilson.

VI.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

. The parties engage in a protracted fight over whether these claims are procedurally defaulted. The Commonwealth charges that Wilson failed to raise any of these complaints until his federal habeas petition. Wilson retorts that he has several grounds establishing cause and prejudice to excuse any default such as a lengthy delay in notifying state habeas counsel of his appointment. Because we believe Wilson's claims to be meritless in all events, we need not resolve this dispute.

. For similar reasons, we reject Wilson's argument that counsel was ineffective for not requesting a psychiatric evaluation until the end of October 1993. Since Dr. Killian already had concluded that Wilson was sane at the time of the offense, counsel's decision not to seek another evaluation sooner was hardly unreasonable.. Furthermore, upon giving notice of an intent to present psychological evidence in mitigation, counsel would have been required to disclose the results of such an evaluation-regardless of when it was requested; thus, the timing of the request could not affect the trial's outcome. See Va.Code Ann. § 19.2-264.3:1.D-E..

. Wilson briefly argues that the district court erroneously denied him an evidentiary hearing on his claims of ineffective assistance. Recently, this circuit explained that "[cjvidentiary hearings have never been required on federal collateral review of state petitioners' ineffectiveness claims.” Eaton v. Angelone, 139 F.3d 990, 995 (4th Cir.1998) (citations omitted), cert. denied, -U.S.-, 118 S.Ct. 2338, 141 L.Ed.2d 709 (1998). Wilson has failed to show how an evidentiary hearing would have aided the fact-finding process. Here the district court carefully considered several claims of ineffective assistance and found them meritless; its failure to hold an evidentiary hearing "in no way indicates that the court slighted these claims.” Id. In light of our conclusion that an evidentiary hearing was unnecessary, we need not decide whether AEDPA independently might bar a hearing on these claims. See 28 U.S.C. § 2254(e).