Watkins v. Angelone

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONALD L. WATKINS,
Petitioner-Appellant,

v.
No. 97-9
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-94-263-R)

Argued: October 30, 1997

Decided: January 7, 1998

Before MICHAEL, Circuit Judge, BUTZNER,
Senior Circuit Judge, and BULLOCK,
Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mark Evan Olive, VIRGINIA CAPITAL REPRESEN-
TATION RESOURCE CENTER, Richmond, Virginia, for Appellant.
Robert Quentin Harris, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Robert E. Lee, Jr., VIRGINIA CAPITAL REPRESENTA-
TION RESOURCE CENTER, Richmond, Virginia, for Appellant.
Richard Cullen, Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The petitioner, Ronald Watkins, applied for a writ of habeas corpus
in the Western District of Virginia following his conviction and death
sentence in the Circuit Court of Danville, Virginia. He appeals the
district court's denial of the writ on three grounds. First, Watkins
alleges that the racial composition of the jury pool caused his death
sentence to be tainted by discrimination. Second, he charges his trial
counsel with ineffective assistance for failing to make certain objec-
tions during the trial and for making a closing argument to the sen-
tencing jury that Watkins says was prejudicial. Finally, Watkins
asserts that the sentencing court violated the Eighth Amendment by
refusing to permit him to tell the jury that he would serve a minimum
of twenty years without parole if sentenced to life imprisonment.
Because we conclude that the district court was correct in denying the
writ, we affirm.

I.

Shortly before 8:00 p.m. on May 26, 1988, Dr. Ralph McCauley
went to the Allied Services store in a Danville, Virginia, shopping
center because he was concerned that his son, who owned the store,
had not returned from work that evening. When he arrived, Dr.
McCauley saw his twenty-nine-year-old son, William McCauley,
lying on the floor, face down in a pool of blood. William McCauley
had been stabbed seven times in the upper back, and his throat had

2
been slashed three times. According to the medical examiner, four of
these wounds were independently lethal. A trail of blood led from
McCauley's body to the filing cabinet that served as a cash repository
for the store. The cabinet was found empty, and the victim's wallet
was also missing.

An employee of the store saw Ronald Watkins hanging around the
store's entrance that same evening before the murder. She recognized
Watkins because he had once worked at the store with her and Wil-
liam McCauley. Armed with this intelligence, the police questioned
Watkins's girlfriend and siblings, who were persuaded to tape their
phone conversations with Watkins. In one taped conversation with his
brother, Watkins admitted to robbing William McCauley and then
killing him because he knew Watkins. Shortly thereafter, after being
arrested and given Miranda warnings, Watkins voluntarily confessed
that he had stabbed McCauley and "cut his throat."

Prior to trial Watkins, who is black, challenged the venire because
only five of its thirty-five members were black, while nearly thirty
percent of the population of Danville is black. In the evidentiary hear-
ing that followed, the judge noted that the venire was selected at ran-
dom from voter registration lists by the clerk's office and that there
is no Constitutional guarantee that a jury will have a racial make-up
precisely proportional to that of the community at large. See J.A. 236-
40. The trial court subsequently denied the challenge. At the pre-trial
stage, Watkins did not raise any issue concerning historical or system-
atic racial discrimination in the seating of capital juries in Danville.

One of the members of the jury pool was Lennie Clark. On voir
dire the prosecutor inquired whether Clark was related to Watkins.
Clark replied that he was not related to Watkins but that he was
related to a murder victim in an unrelated recent case. Defense coun-
sel declined to challenge Clark for cause, despite Watkins's protests,
and Clark was seated on the panel.

Watkins was convicted of capital murder and robbery on Septem-
ber 28, 1988. The penalty phase of the trial was conducted that same
evening. Watkins offered Dr. Miller Ryans, a forensic psychiatrist,
who testified that Watkins would not pose a threat of future danger-
ousness once incarcerated. In rebuttal the prosecution presented Dr.

3
Arthur Centor, a government forensic psychologist who had inter-
viewed Watkins prior to trial. Dr. Centor's testimony tended to show
that Watkins was a future danger to society even in prison. Defense
counsel cross-examined Dr. Centor but did not object to his testi-
mony.

Defense counsel argued at the close of the sentencing phase that
while Watkins was violent and uncontrollable on the street, his ability
to behave in an orderly manner while incarcerated merited a sentence
less than death. The argument included the following statements:

[T]here are two Ronalds, and I'm not saying that Ronald is
schizophrenic or he has these emotional problems, but Ron-
ald acts differently in different situations. The Ronald on the
street is a monster. I can't deny that but the Ronald in the
home where Dad is watching him and has rules and the
Ronald in the penitentiary where the guards watch him and
the guards have rules is a Ronald that can make it in this
world, a Ronald that can live and a Ronald that does not
deserve to die. Even the vilest person among us is still a
human being and he's still blessed with the dignity and the
God-given right to live that the Lord gave each and every
one of us.

J.A. 347. The prosecutor, in his closing argument to the jury, accused
Watkins of failing to show remorse for the killing:

Remorse? What remorse has he shown? His own father said
on May 31st he showed no remorse. Now he's scared and
he should be, but has he shown any remorse in the court-
room? Did he show any remorse when his tape was being
played about how he methodically killed Bill McCauley. He
was over there jotting around. You heard his voice[on the
tape] . . . Any remorse? Brutal.

J.A. 351. After considering the evidence and listening to these argu-
ments, the jury recommended that Watkins receive the death penalty.
The trial court thereafter sentenced Watkins to death.

4
After sentencing Watkins filed a "Motion and Memorandum to
Prohibit Imposition of the Death Penalty on Grounds of its Arbitrary
and Discriminatory Application in Violation of the Eighth and Four-
teenth Amendments of the United States Constitution; Alternative
Motion for Continuance and for Funds." J.A. 220. In this motion Wat-
kins argued that the jury was racially biased due to unlawful exclu-
sion of blacks from the jury pool. He based this argument on the
grounds that there was only one black person on the jury (Lennie
Clark) and that since 1980 capital juries in Danville had sentenced to
death every black capital murder defendant accused of murdering a
white victim. See J.A. at 223-24. These facts were developed in an
evidentiary hearing involving testimony by several witnesses who had
been involved in prior capital cases. See J.A. at 367-402 (excerpts).
In the alternative, Watkins moved for a continuance and for funds to
gather data on homicide cases tried in Danville over the past decade,
although nothing in the record indicates that this alternative was pur-
sued by Watkins. See J.A. at 225. After the hearing, the motion was
denied.

On direct appeal Watkins argued that he was entitled to a jury
matching the racial composition of the community. The Virginia
Supreme Court rejected this argument, noting that Watkins "[made]
no contention that the jury selection process was unlawful and makes
no showing of any policy of, or effort toward, systematic exclusion"
of blacks or "a history of under-representation of minorities on Dan-
ville juries." See Watkins v. Commonwealth , 385 S.E.2d 50, 53 (Va.
1989). Watkins contends that this was a mischaracterization of his
claim, although the record does not show a petition for rehearing or
any other effort to correct any misunderstanding.

The Supreme Court subsequently denied his petition for certiorari,
with two Justices dissenting. See Watkins v. Virginia, 494 U.S. 1074
(1990). On March 20, 1991, Watkins sought a writ of habeas corpus
in state court, which was denied on September 9, 1991. Thereafter,
the Virginia Supreme Court and the United States Supreme Court
refused petitions for appeal and certiorari, respectively, and a federal
habeas petition was filed on April 15, 1994.

Watkins's application for the writ contained eighty-one claims. See
J.A. at 151-58. Of these, only six have been pressed in this appeal.

5
The first claim asserts that there was racism in the selection of the
jury for Watkins's trial, as well as for all juries in Danville capital tri-
als involving black defendants. The next four claims allege ineffective
assistance of counsel at trial and sentencing. The final claim concerns
the state trial court's refusal to permit the jury to hear (as mitigating
evidence at sentencing) that Watkins would have to serve twenty
years of a life sentence before any possibility of parole. The district
court rejected these claims, along with the others, on March 14, 1997.
Watkins now appeals.

II.

A.

Watkins's initial ground for appeal concerns alleged racial discrim-
ination in the formation of the jury that recommended his death sen-
tence. His first argument is that the venire from which the jurors in
his case were selected was chosen in a discriminatory manner violat-
ing the Sixth and Fourteenth Amendments, as evidenced by the rela-
tive lack of blacks. His second argument uses historical and empirical
evidence in an attempt to demonstrate that his jury acted with dis-
criminatory purpose in violation of the Equal Protection Clause. We
take these arguments in turn.

1.

a.

The standard for a race-based challenge to the composition of a
jury pool under the Sixth Amendment was set by the Supreme Court
in Duren v. Missouri, 439 U.S. 357 (1979). To show a prima facie
violation of the Constitution's fair cross-section requirement in select-
ing a jury pool:

the defendant must show (1) that the group alleged to be
excluded is a "distinctive" group in the community; (2) that
the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the num-
ber of such persons in the community; and (3) that this

6
 underrepresentation is due to systematic exclusion of the
group in the jury-selection process.

Id. at 364. Only the third element is at issue here.

Watkins's Virginia Supreme Court brief indicates that his claim
was based on the proposition that "reliance by the state on voter lists
for venire, in light of the evidence of lack of registration by minori-
ties, created a prima facie case" for a violation of the fair cross-
section requirement of the Sixth Amendment. J.A. 26. The authority
cited for this proposition was a California Supreme Court case setting
aside a capital sentence on those grounds. See People v. Harris, 679
P.2d 433 (Cal. 1984).

Watkins's reliance on this California case was unsuccessful. The
Virginia Supreme Court rejected the argument, stating that the use of
the list of registered voters constitutes a fair selection system. See
Watkins v. Commonwealth, 385 S.E.2d 50, 53 (Va. 1989) (citing
Taylor v. Louisiana, 419 U.S. 522 (1975)). This is perfectly conso-
nant with our consistent endorsement of the use of voter registration
lists to develop jury pools. In United States v. Cecil, 836 F.2d 1431
(4th Cir. 1988) (en banc), we considered an attack on the jury selec-
tion procedure used by federal district courts in Maryland. We held
that absent evidence of systematic exclusion of a class from the jury
pool, the use of voter registration lists is entirely permissible. See id.
at 1445-52. Similarly, we have upheld the use of current voter regis-
tration lists as a source for the jury pool in federal district courts in
South Carolina because there was no affirmative discrimination in
voter registration, even though minorities were underrepresented on
the registration lists. See United States v. Lewis, 10 F.3d 1086, 1089-
90 (4th Cir. 1993). We therefore agree with the Virginia Supreme
Court that Watkins "[made] no showing of . . . systematic exclusion
of members of his race" from the venire. Watkins, 385 S.E.2d at 53.1
_________________________________________________________________
1 Ultimately California itself rejected the argument made by Watkins,
overruling Harris and holding that the use of voter registration lists was
constitutionally compatible with Duren. See People v. Sanders, 797 P.2d
561 (Cal. 1990).

7
b.

Watkins also poses a Fourteenth Amendment challenge based on
the same evidence, that is, the use of voter lists. A prima facie case
of a Fourteenth Amendment violation in the composition of a venire
must establish that "(1) there is a cognizable group, (2) that is sub-
stantially underrepresented by reason of (3) a selection procedure that
is not racially neutral, i.e., is the result of intentional discrimination."
United States v. Miller, 116 F.3d 641, 658 (2d Cir. 1997) (Kearse, J.)
(citation omitted); see also Cunningham v. Zant , 928 F.2d 1006, 1013
(11th Cir. 1991) (citing Castaneda v. Partida , 430 U.S. 482, 494
(1977)).2 Again, only the third element is at issue on this appeal.

In United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990), the Second
Circuit considered an equal protection challenge to the jury selection
process in the Southern District of New York, which used voter regis-
tration lists as a source of names for the pool. The defendant in that
case "made no claim that Blacks or Hispanics have been hindered in
registering to vote." Id. at 677. As a result, the fact that fewer minori-
ties actually register to vote, without more, did not deprive the jury
selection plan of racial neutrality or render it susceptible to abuse,
despite an almost one-third comparative disparity between the popula-
tion and jury pool. See id.

In the present case, we also have a venire selected from voter regis-
tration lists. Watkins did not present any evidence to the Virginia state
courts that the use of voter registration lists is"susceptible of abuse
_________________________________________________________________
2 It is not clear from the text of Castaneda whether the Court meant to
institute a tripartite test for a prima facie case. See United States v.
Biaggi, 909 F.2d 662, 677 (2d Cir. 1990) (expressing doubt whether
Castaneda meant to require that selection procedure not be racially
neutral in order to make prima facie case). We note, however, the near
unanimity of our sister circuits in adopting a three-part test for an equal
protection claim. See, e.g.,Miller, 116 F.3d at 658; United States v.
Esquivel, 88 F.3d 722, 725 (9th Cir. 1996); James v. Whitely, 39 F.3d
607, 609 (5th Cir. 1994); Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d
Cir. 1992); Jefferson v. Morgan, 962 F.2d 1185, 1188 (6th Cir. 1992);
Cunningham, 928 F.2d at 1019. For this reason, we also use the tripartite
test.

8
or is not racially neutral." Castaneda, 430 U.S. at 494. Watkins there-
fore also failed to make a prima facie equal protection claim before
the state court.

c.

Now Watkins wishes to present additional evidence that he alleges
would support a finding of systematic discrimination and establish a
prima facie case under both the Sixth and Fourteenth Amendments.
This new evidence consists mainly of statistical data that purports to
demonstrate a pattern of discriminatory sentencing of black capital
defendants in Danville. See J.A. at 91-96. The district court declined
to review this evidence because it was not presented to the state court
during the two evidentiary hearings it held on the venire discrimina-
tion claim.

We have held that:

[w]hen the state has given a petitioner a full and fair hearing
on a claim and he has failed to develop the material facts
supporting it, he is not entitled to develop further facts in a
federal habeas evidentiary hearing unless he demonstrates
either cause for the failure and prejudice resulting therefrom
or a fundamental miscarriage of justice.

Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (citing
Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12 (1992)). The requirement
that full factual development of a claim take place in state court is
dictated by comity in order to give state courts an opportunity to
address the claim. See Keeney, 504 U.S. at 9-10 (citing Picard v.
Connor, 404 U.S. 270, 275 (1971)).

Here, Watkins received not one, but two evidentiary hearings from
the state trial court on the issue of racial discrimination in jury selec-
tion. See J.A. at 228-40; 367-402 (excerpts). None of the statistical
evidence Watkins now proffers was presented to the Virginia courts,
despite two opportunities to develop material facts supporting his dis-
crimination claim. Watkins must therefore show either cause and prej-
udice or a fundamental miscarriage of justice in order to obtain a third
evidentiary hearing on federal habeas review.

9
In order to show cause sufficient to satisfy Keeney, a petitioner
must demonstrate "some objective factor external to the defense [that]
impeded counsel's efforts" to present the evidence. Murray v.
Carrier, 477 U.S. 478, 488 (1986). A reviewing court may only con-
sider those sources of cause which are raised by the petitioner. See
Correll, 63 F.3d at 1288. Here, Watkins only presents one possible
ground for cause: that the trial court denied his motion for a continu-
ance to gather data on Danville capital trials. This could constitute
cause for a default.

In order to assert cause for failure to develop material facts at the
state level, a petitioner must show that the basis of the cause is not
procedurally barred. Cf. Pruett v. Thompson, 996 F.2d 1560, 1569-70
(4th Cir. 1993) (holding that if basis for alleged cause is barred, then
cause itself is procedurally defaulted). Virginia law bars consideration
of claims which could have been presented on direct appeal but were
not. See Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). We must
apply the same standards of appellate default on habeas review as
would apply under state law. See Smith v. Murray , 477 U.S. 527, 533
(1986) (barring claim not preserved on appeal to Virginia Supreme
Court). No argument was made before the Virginia Supreme Court on
direct appeal that the motion for a continuance was improperly
denied. Therefore, Watkins is procedurally defaulted from citing that
denial as cause on habeas review. Accordingly, Watkins cannot show
cause justifying his failure to present his statistical evidence to the
state courts.

Watkins also claims that he will suffer from a fundamental miscar-
riage of justice if he cannot present this evidence to a federal court.
In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court held that
the fundamental miscarriage of justice exception applies only if the
petitioner claims actual innocence of either the offense itself or of an
aggravating circumstance that was the basis of a capital sentence. See
id. at 321 ("[T]his Court explicitly tie[s] the miscarriage of justice
exception to the petitioner's innocence"); Matthews v. Evatt, 105 F.3d
907, 916 (4th Cir. 1997). Nowhere in his brief to this court does Wat-
kins claim actual innocence, nor does the record suggest that he is in
fact innocent. We therefore agree with the district court's determina-
tion that Watkins's additional statistical evidence is procedurally

10
barred and that he has not established a prima facie case of racial dis-
crimination in jury selection.

2.

Watkins's second claim is that race was an impermissible factor in
his death sentence in violation of the Equal Protection Clause. He
alleges that since 1980 all black defendants charged in Danville with
capital murder of white victims received the death penalty. The evi-
dence he cites includes an empirical study of capital cases in Danville,
which Watkins developed before the state court through the testimony
of persons involved in these prior cases.3

For over a decade the standard for reviewing allegations of racial
discrimination in capital sentencing has been clear. A petitioner "must
prove that the decisionmakers in his case acted with discriminatory
purpose." McCleskey v. Kemp, 481 U.S. 279, 292 (1986) (emphasis
in original). The Supreme Court places the burden on the petitioner
to show discriminatory intent on the part of the jury in order to make
a discrimination claim. In McCleskey the petitioner attempted to show
discriminatory intent by presenting a detailed statistical analysis of
the application of the death penalty in the state of Georgia. This evi-
dence tended to show that blacks were more likely than whites to
receive the death penalty. The Supreme Court found the study
_________________________________________________________________
3 On this issue Watkins proffers the same new statistical evidence that
he proffered to support his claim of racial discrimination in selection of
the jury pool. As noted above, Watkins cannot offer these new facts for
the first time on federal collateral review, so we must decline to review
that evidence here as well. See Correll, 63 F.3d at 1288.

Watkins also proffers historical evidence for the proposition that juries
in Danville act with racist intent. Among the facts cited by Watkins was
that Danville was the capital of the Confederacy in the waning days of
the Civil War, that many black citizens were assaulted in an effort by the
Democrat Party to defeat the Readjuster-Republican coalition in the 1883
election, and that civil rights activists suffered at the hands of local offi-
cials in the 1960s. This history cannot support a challenge to a 1988 jury:
"unless historical evidence is reasonably contemporaneous with a chal-
lenged decision, it has little probative value." McCleskey v. Kemp, 481
U.S. 279, 298 n.20 (1987).

11
"clearly insufficient" to support an inference of discrimination by
McCleskey's particular jury. Id. at 297. This conclusion followed
from the principle, enunciated by the Supreme Court, that a statistical
analysis is suspect in evaluating the death penalty because each jury
is unique and each decision to impose the death penalty is based "on
the circumstances of the individual defendant and facts of the particu-
lar capital offense." Id. at 294; cf. Fuller v. Georgia State Bd. of Par-
dons & Paroles, 851 F.2d 1307, 1310 (11th Cir. 1988) (distinguishing
McCleskey in claim against Georgia Parole Board because statistics
focused on the decisions of the Board, a single entity, rather than
those of many unique juries).

The evidence that Watkins proffers suffers the same deficiency as
that considered in McCleskey: it does not demonstrate that Watkins's
particular jury acted with discriminatory intent. Indeed, if a compre-
hensive statistical study like that in McCleskey could not pass muster,
we fail to see how the evidence presented by Watkins concerning just
a handful of cases in Danville could satisfy the McCleskey standard.
Accordingly, we follow the Supreme Court's holding in McCleskey
and affirm the district court's denial of Watkins's claim.4

B.

Watkins also highlights four different instances where he claims
trial counsel was ineffective. Watkins says that each instance by itself
mandates relief. The first concerns the failure to challenge the seating
of a juror who was related to a murder victim in another case. The
second involves the failure to object in the sentencing phase to the
testimony of a prosecution psychiatrist regarding Watkins's future
dangerousness. The third involves a reference to Watkins as "a mon-
ster" and "vile" in closing argument to the sentencing jury. The fourth
arises from a failure to object to the prosecutor's alleged comment on
Watkins's silence at trial.
_________________________________________________________________
4 Watkins also claims prosecutorial misconduct based on race. Since
this claim was not made to the Virginia state courts, we are barred from
considering it here. See Gray v. Netherland, 116 S. Ct. 2074, 2080
(1996).

12
Almost fifteen years ago, the Supreme Court defined the burden for
establishing ineffective assistance of counsel. A petitioner must show
that counsel's performance was deficient, that it fell below an objec-
tive standard of reasonableness, and that the grossly deficient perfor-
mance actually prejudiced the petitioner. See Strickland v.
Washington, 466 U.S. 668, 686 (1984). The Court made it very clear
that this is a highly deferential standard. Courts reviewing ineffective
assistance claims must keep in mind the "strong presumption that
counsel's conduct falls within the wide range of reasonable profes-
sional assistance." Id. at 689. This deference reflects the fact that dif-
ferent counsel, all competent, may approach trial problems in
different ways. A challenged action is ineffective assistance only if it
cannot be considered sound trial strategy under the wide range of rea-
sonable professional conduct. See id.; Arnold v. Evatt, 113 F.3d 1352,
1363 (4th Cir. 1997). With this standard in mind, we consider each
instance where Watkins alleges ineffective assistance.

1.

Watkins's first such claim concerns the voir dire of Lennie Clark,
a member of the jury pool who was ultimately selected for the panel
that convicted and sentenced Watkins to death. At voir dire the prose-
cutor asked Clark about a rumor that he was related to Watkins. Clark
answered that he was not aware of any relationship. Subsequent voir
dire questioning cleared up the confusion by revealing that Clark was
related to a murder victim in a totally different case. Defense counsel
asked Clark no questions after learning this information, and counsel
did not object for cause to Clark's seating on the jury. This strategy
was directly contrary to Watkins's wishes.

Virginia law is clear that the mere fact that a juror is related to a
victim in an unrelated case does not disqualify that juror. See, e.g.,
Mackall v. Commonwealth, 372 S.E.2d 759, 767 (Va. 1988) (mother
of juror was recent rape victim). Any objection by Watkins's counsel
on that ground would likely have been futile. Furthermore, the racial
composition of the jury pool was already an issue in the case. Since
Watkins's counsel apparently believed that black jurors were more
favorably disposed to his client, it could have been a strategic deci-
sion on his part to permit Clark, who is black, to remain on the jury
despite his connection to a victim in an earlier murder case. Accord-

13
ingly, we cannot conclude that defense counsel's failure to object to
Clark's seating on the jury was not the result of competent trial strat-
egy, so this first ineffective assistance claim must fail.

2.

At the sentencing proceeding, the defense presented Dr. Ryans, a
forensic criminal psychiatrist who had evaluated Watkins in custody.
Dr. Ryans testified that Watkins would not present a future danger to
society within a penal institution, one of the primary arguments in the
defense's case against the death penalty. In rebuttal the State called
Dr. Centor, a forensic psychologist who had evaluated Watkins pursu-
ant to court order on the Commonwealth's motion before trial. Dr.
Centor used information gathered in that interview to rebut Dr.
Ryans's testimony and assert that Watkins did present a risk of future
dangerousness even while institutionalized. Watkins argues that Dr.
Centor's testimony violated the holding of Estelle v. Smith, 451 U.S.
454 (1981), which held that a defendant has a Fifth and Sixth Amend-
ment right to be notified that a psychiatric evaluation by the state may
be used against him at sentencing.

The facts in this case are strikingly similar to those in Savino v.
Murray, 82 F.3d 593 (4th Cir. 1996). In that case, the petitioner
(Savino) was examined by a court-appointed expert in support of his
mitigation claim. The Commonwealth of Virginia produced its own
expert, coincidentally Dr. Centor, to perform a second evaluation.
After Savino introduced his expert's testimony, the state rebutted with
Dr. Centor's expert opinion that Savino would be a future danger to
society. See id. at 604. On habeas review, we held that Dr. Centor's
testimony did not violate the Fifth or Sixth Amendment because those
rights were waived by Savino's request for a psychiatric evaluation
and because Savino and his counsel had actual notice of the second
interview. See id. at 604-05; see also Woomer v. Aiken, 856 F.2d 677,
681-82 (4th Cir. 1988) (holding that Constitution does not require
specific notice that evaluation might provide basis for future danger-
ousness argument).

In the same way, Watkins and his counsel had actual notice of Dr.
Centor's examination through the court's order before trial. See J.A.
at 13. As a result, any objection to Dr. Centor's testimony on Fifth

14
and Sixth Amendment grounds would have been futile. Accordingly,
we cannot conclude that defense counsel rendered ineffective assis-
tance in not objecting to Dr. Centor's testimony.

3.

Watkins next complains about his counsel's closing argument in
the penalty phase. Watkins claims that counsel was ineffective
because he called Watkins "a monster" and"vile" in front of the jury.
These characterizations, Watkins alleges, were so prejudicial to his
effort to evade the death penalty that they constitute ineffective assis-
tance. On its face, calling one's client a vile monster does not appear
to be a wise tactical decision. Here, however, defense counsel's
remarks are not nearly so shocking in context as Watkins suggests. It
is evident from the tenor of the argument that counsel made a strate-
gic decision to paint Watkins as a person who had considerable diffi-
culty coping in an unstructured environment. The evidence strongly
suggested that when subject to discipline, as in his father's home or
in prison, Watkins controlled his violent tendencies and could be pro-
ductive. Hence, "the Ronald on the street is a monster", J.A. 346
(emphasis added), but "the Ronald in the penitentiary . . . [is] a Ron-
ald that can live and is a Ronald that does not deserve to die." J.A.
347 (emphasis added). This line of argument was a reasonable tactical
move designed to try to avoid the death penalty.

Similarly, counsel appealed to the jury's compassion, reminding
them in evocative language with religious overtones that "[t]he vilest
among us is still a human being and he's still blessed with the dignity
of the God-given right to live that the Lord gave each and every one
of us." J.A. 347. Because counsel was attempting to convince the jury
to spare the life of a man it had just convicted of a brutal murder, we
cannot hold it deficient for counsel to appeal to the sympathy of the
jury in attempting to spare his client. We must give counsel strategic
leeway in such grave circumstances. Cf. Strickland, 466 U.S. at 689-
90 (citing Goodpaster, The Trial for Life: Effective Assistance of
Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 343 (1983)).
Accordingly, we reject this claim as well.

4.

The prosecutor used his closing argument in the sentencing phase
to urge that Watkins receive death for his crimes. He said that Wat-

15
kins did not show any remorse during trial or in the taped phone con-
versations. Watkins now alleges that defense counsel's failure to
object to this statement by the prosecutor in effect permitted the pros-
ecutor to get away with a comment on Watkins's silence in violation
of the Fifth Amendment.

It is well-established that a prosecutor's remarks warrant reversal
only if they infect a trial with unfairness to the point that the resulting
conviction violates due process. See Darden v. Wainwright, 477 U.S.
168, 181 (1968). It is not a comment on the defendant's right to
silence merely to assert that he lacks remorse. See Gaskins v.
McKellar, 916 F.2d 941 (4th Cir. 1990).

A recent Eighth Circuit case is almost directly on point. In Six v.
Delo, 94 F.3d 469 (8th Cir. 1996), the prosecutor made the following
remarks at the close of the penalty phase:

You've watched [Six] during this week, ladies and gentle-
men, what remorse has he shown for the death of Kathy
Allen? What remorse has he shown for cutting the throat of
Stella Allen? What remorse has he shown for raping[Chris-
tine Allen]? What remorse has he shown? And now .. . they
have the guts to come here and to ask you for mercy.. . .
And you've already decided . . . whether or not he's guilty
of the death. . . . What remorse has he shown?. . . . Let's talk
now, folks, about courage and let's talk about cowardice.
Because this man and his uncle are cowards. . . . And he sits
before you today, a rapist, a killer, a thief and a coward --
and a coward.

Id. at 476. On habeas review, Six contended that his appellate counsel
was ineffective for failing to raise a Fifth Amendment claim based on
this passage. The Eighth Circuit found the prosecutor's statement to
be unobjectionable. "Because the comments about remorse were pref-
aced by a reference to the jury's observance of Six during the trial,
we cannot say the prosecutor's comments about remorse were
intended as anything more than remarks on Six's general demeanor
in the courtroom, or that the jury would view the comments as any-
thing more." Id. at 477 (citing Gaskins).

16
In this case, the prosecutor clearly keyed his remarks about Wat-
kins's lack of remorse to his demeanor in the courtroom and to his
comments on the audio tape. Indeed, the comments made in Wat-
kins's trial pale in comparison to the rhetoric found unobjectionable
in Six. We do not believe that the jury would naturally have taken
these comments as highlighting Watkins's failure to take the stand.
As a result, it was not deficient for defense counsel to fail to object,
so Watkins's final ineffective assistance claim also must fail.

C.

Watkins further argues that the state trial court violated the Eighth
Amendment by refusing to permit the jury to hear evidence concern-
ing the minimum length of imprisonment without parole he would
face under a life sentence. Counsel moved in state court to be permit-
ted "to discuss for the jury the parole eligibility [of the petitioner] so
that they would know he would be in the penitentiary for a minimum
of . . . twenty years" if given a life sentence. J.A. 320.5

The Eighth Amendment provides capital defendants with broad lat-
itude to offer mitigating evidence at sentencing. The general rule is
that the jury must consider "any aspect of a defendant's character or
record or any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death." Lockett v. Ohio,
438 U.S. 586, 604 (1978) (plurality opinion). A jury can sentence a
person to death in accordance with the Eighth Amendment only after
it considers all of the mitigating evidence the defendant wishes to
present. See id. at 608; Hitchcock v. Dugger, 481 U.S. 393 (1987)
(holding for a unanimous Court that sentencing in a capital case must
consider an extensive list of non-statutory mitigating factors, includ-
ing defendant's good deeds as an affectionate uncle and childhood
habit of inhaling gas fumes).
_________________________________________________________________

5 The Commonwealth disputed this calculation at trial and continues to
do so here. Watkins also revised his estimation of the minimum sentence
in his habeas petition, upwards to thirty years. There is not sufficient
information in the record to resolve this difference. In any event, the dif-
ference is not material to our decision.

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Despite this broad interpretation of mitigating evidence under the
Eighth Amendment, before 1994 Virginia refused to permit juries to
hear evidence about parole eligibility in sentencing proceedings. See,
e.g., Poyner v. Commonwealth, 329 S.E.2d 815, 836-37 (Va. 1985)
(holding that sentencing jury should not be informed of parole eligi-
bility in the event of life sentence); cf. Peterson v. Murray, 904 F.2d
882, 886-87 (4th Cir. 1990) (holding that Eighth Amendment does not
require that sentencing jury be told defendant will not be eligible for
parole for twenty years if given life sentence). These cases relied on
California v. Ramos, 463 U.S. 992 (1983), which held that the state
had discretion to determine whether to inform a sentencing jury about
the possibility of parole. In 1994 the Supreme Court broke with this
precedent and held that refusing to permit a jury to hear that a life
sentence carried no possibility of parole violated due process. See
Simmons v. South Carolina, 512 U.S. 154 (1994). Two Justices also
concluded that the Eighth Amendment requires such information be
given to the jury. See id. at 172 (Souter, J., concurring). Applying
Simmons to this case, Watkins alleges, would mandate award of the
writ under the Eighth Amendment.

However, "before a state prisoner may upset his state conviction or
sentence on federal collateral review, he must demonstrate as a
threshold matter that the court-made rule of which he seeks the bene-
fit is not `new.'" O'Dell v. Netherland , 117 S. Ct. 1969, 1973 (1997).
A "new rule" is one which was not "dictated by precedent existing at
the time the defendant's conviction became final." Teague v. Lane,
489 U.S. 288, 301 (1989). A state conviction will only be overturned
if the state court, at the time the conviction became final, "would have
acted objectively unreasonably by not extending the relief later sought
in federal court," O'Dell, 117 S. Ct. at 1973, or if "fundamental fair-
ness" would dictate application of the rule. See id. at 1978 (citing
Gideon v. Wainwright, 372 U.S. 335 (1963), as such a rule). Our
inquiry therefore focuses on whether the rule advocated by Watkins
was dictated by precedent in 1988.

In O'Dell the petitioner (O'Dell) had been convicted in a Virginia
court in 1988 for rape and murder. At the sentencing phase O'Dell
unsuccessfully sought a jury instruction that he would be ineligible
for parole if he received a life sentence. See id. at 1972. He then
applied for federal habeas relief, arguing that Simmons required that

18
his jury hear about his parole ineligibility. The Supreme Court
rejected this argument, holding that Simmons was a "new rule" and
that a federal court was barred by Teague from applying it on habeas
review to a 1988 Virginia conviction. See id. at 1977 ("[W]e think it
plain that, a reasonable jurist in 1988 would not have felt compelled
to adopt the rule later set out in Simmons."). The Court also declined
to place Simmons within the "fundamental fairness" exception of
Teague. See id. at 1978. Given the Supreme Court's clear command,
we are compelled to recognize that Simmons does not apply to a 1988
conviction and sentence.

Watkins argues that under the rule in Simmons the Due Process
Clause now requires that juries be informed of the precise meaning
of "life imprisonment" as an alternative to death, including mandatory
minimum sentences without parole. See Brown v. Texas, 118 S. Ct.
355, 356 (1997) (Stevens, J., respecting denial of certiorari) (noting
that denial of certiorari on issue should not be interpreted as rejecting
the principle that information on mandatory minimum sentence
should be presented to jury). Furthermore, Watkins argues that the
Simmons rule may derive from the Eighth Amendment as well as the
Due Process Clause. See Simmons, 512 U.S. at 172 (Souter, J., con-
curring); but see id. at 162 n.4 (reserving Eighth Amendment ques-
tion); id. at 174 (Ginsburg, J., concurring) (narrowly construing
holding to Due Process aspects). Watkins's argument regarding man-
datory minimums, which would apply the rule of Simmons through
the Eighth Amendment, must fail under Teague. Such a rule could not
apply to Watkins's 1988 sentence. Cf. O'Dell, 117 S. Ct. at 1977. His
attempt to obtain habeas relief to permit a jury to hear about his man-
datory minimum sentence is thus foreclosed.

III.

Watkins's application for the writ of habeas corpus was properly
dismissed by the district court, and the judgment of that court is
accordingly

AFFIRMED.

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