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Seventh Circuit: Cronic Doesn’t Provide Exclusive Situations for its Application, Finds Attorney Abandonment at Sentencing Despite Counsel Being Physically Present

by Dale Chappell

In a case where a defendant’s lawyer was present at sentencing but did “absolutely nothing” to help him, the U.S. Court of Appeals for the Seventh Circuit granted habeas corpus relief to an Indiana state prisoner, ruling that attorney abandonment does not always mean that the attorney has physically left his client during a critical stage.

Roderick Lewis was not the trigger man, but he was convicted of two counts of felony murder. The court held a sentencing hearing and offered to allow counsel an opportunity to speak on behalf of his client in hopes of a lower sentence. However, counsel simply stated: “Judge I’m going to defer to Mr. Lewis if he has comments. I don’t have anything to add.” That was the entirety of counsel’s involvement or assistance at sentencing. He did nothing to offer mitigating evidence of Lewis’ troubled upbringing, substance abuse, or his young age at the time of the crime.

Lewis was sentenced to 130 years, the maximum allowable under the law. Once his appeals were exhausted, he filed a pro se postconviction petition. At a hearing on the claim that counsel failed to do anything for him at sentencing, Lewis called counsel to testify. He admitted that he did nothing to help Lewis, and the Indiana Court of Appeals agreed that “counsel’s performance at sentencing was clearly deficient.” However, applying the ineffective assistance of counsel (“IAC”) standard under Strickland v. Washington, 466 U.S. 668 (1984), the court denied relief by finding that he was not prejudiced by counsel’s deficient performance. In short, the court agreed with the State that no matter what help counsel could have provided, Lewis was going to receive the maximum sentence.

Filing for habeas corpus in the U.S. District Court for the Southern District of Indiana, Lewis again argued that counsel abandoned him at sentencing. The district court, however, could not second-guess the state court’s decision unless it was an unreasonable application of “clearly established federal law,” as defined by the U.S. Supreme Court. 28 U.S.C. § 2254(d)(1). The state court had applied the two-prong analysis in Strickland, regarding IAC claims (i.e., counsel’s performance fell below “objective standard of reasonableness” and “a reasonable probability that, but for counsel’s errors, the result … would have been different”; the former is commonly referred to as the performance prong and the latter the prejudice prong). The district court determined that no Supreme Court case was on-point with Lewis’ claimed error and therefore denied relief. However, the court stated that “[r]easonable jurists could disagree about whether Cronic clearly establishes an exception to Strickland’s prejudice requirement” based on the facts of this case and granted a certificate of appealability on this issue.

The Court noted that if “Cronic applies … then matters are quite different, because prejudice need not be shown.” In United States v. Cronic, 466 U.S. 648 (1984), decided the same day as Strickland, the Supreme Court recognized an “exception” to Strickland’s standard analysis when “circumstances … are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified,” i.e., presumption of prejudice so that only the performance prong needs to be satisfied.

The Cronic Court identified three such situations: (1) “The complete absence of counsel at a critical stage,” (2) “Counsel’s total failure to subject the prosecution’s case to meaningful adversarial testing,” and (3) “Other circumstances” where even competent counsel could not have provided effective assistance.

The Seventh Circuit explained that for the Cronic rule to apply, counsel’s extreme failure must have occurred during a critical stage of the proceedings. See Florida v. Nixon, 543 U.S. 175 (2004). The Court noted that “the Supreme Court has emphasized for years the ‘critical nature of sentencing of in a criminal case….’” Quoting Mempa v. Rhay, 389 U.S. 128 (1967). The Supreme Court reiterated the Sixth Amendment right to counsel during the sentencing phase in Lafler v. Cooper, 566 U.S. 156 (2012). Thus, the Court concluded that Lewis’ counsel’s clearly deficient performance at his sentencing occurred at a critical stage.

The Court rejected the state court’s conclusion that Cronic doesn’t apply to Lewis’ case because his fact pattern doesn’t fit any of the three situations identified in Cronic. According to the Court, Cronic didn’t establish three exclusive categories for the application of its core holding—“that a showing of prejudice is not necessary in ‘situations in which counsel has entirely failed to function as the client’s advocate.’” Quoting Nixon. The Court explained that “we must take the [Cronic] Court at its word when it says that it is simply offering illustrations of the rule announced….” The Court cautioned that judicial “opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration.” Quoting United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). As such, the Court determined that the three situations identified in Cronic are not the exclusive situations in which the Cronic rule may apply.    

The Court reiterated that clearly established federal law in a Supreme Court case does not have to perfectly align with the facts of the case at hand. See Panetti v. Quarterman, 551 U.S. 930 (2007). It cautioned that it has never held a court must find an exact match for the case before it that the Supreme Court had decided in order for it to be clearly established federal law when determining whether to apply deference under § 2254(d)(1). See Williams v. Taylor, 529 U.S. 362 (2000).

Turning to the present case, the Court stated that Lewis’ counsel’s two sentences at sentencing “was an announcement of abandonment.” It characterized counsel’s behavior as the “functional equivalent” of “total absence of counsel” at a critical stage of the proceedings. It explained that Lewis “suffered exactly the fate the Strickland Court had mentioned: the actual or constructive absolute denial of assistance of counsel (Cronic category one).” Thus, the Court concluded that counsel “gave up on Lewis and left him entirely without the assistance of counsel at the sentencing stage of a felony murder case. Rare though Cronic cases may be, we think that this one qualifies.”

The Court ruled that the state court applied the wrong Supreme Court case to Lewis’ claim. It applied Strickland when Cronic was the proper case. Therefore, the federal courts were not obligated to defer to the state court’s decision and could apply for itself Cronic to Lewis’ claim.

Accordingly, the Court reversed the judgment of the district court and remanded for the issuance of a writ of habeas corpus, limited to the sentencing phase. See: Lewis v. Zatecky, 993 F.3d 994 (7th Cir. 2021). 

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Related legal cases

Lewis v. Zatecky

Panetti v. Quarterman

SUPREME COURT OF THE UNITED STATES
550 U.S. 930; 127 S.Ct. 2842; 168 L.Ed.2d 662

SCOTT LOUIS PANETTI, PETITIONER v. NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

No. 06-6407

April 18, 2007, Argued

June 28, 2007, Decided

NOTICE: [*1] The LEXIS pagination of this document is subject to change pending release of the final published version.

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

DISPOSITION: 448 F.3d 815, reversed and remanded.

SYLLABUS:

Petitioner was convicted of capital murder in a Texas state court and sentenced to death despite his well-documented history of mental illness. After the Texas courts denied relief on direct appeal, petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254, but the District Court and the Fifth Circuit rejected his claims, and this Court denied certiorari. In the course of these initial state and federal proceedings, petitioner did not argue that mental illness rendered him incompetent to be executed. Once the state trial court set an execution date, petitioner filed a motion under Texas [*2] law claiming, for the first time, that he was incompetent to be executed because of mental illness. The trial judge denied the motion without a hearing and the Texas Court of Criminal Appeals dismissed petitioner's appeal for lack of jurisdiction.

He then filed another federal habeas petition under § 2254, and the District Court stayed his execution to allow the state trial court time to consider evidence of his then-current mental state. Once the state court began its adjudication, petitioner submitted 10 motions in which he requested, inter alia, a competency hearing and funds for a mental health expert. The court indicated it would rule on the outstanding motions once it had received the report written by the experts that it had appointed to review petitioner's mental condition. The experts subsequently filed this report, which concluded, inter alia, that petitioner had the ability to understand the reason he was to be executed. Without ruling on the outstanding motions, the judge found petitioner competent and closed the case. Petitioner then returned to the Federal District Court, seeking a resolution of his pending § 2254 petition. The District Court concluded [*3] that the state-court competency proceedings failed to comply with Texas law and were constitutionally inadequate in light of the procedural requirements mandated by Ford v. Wainwright, 477 U.S. 399, 410, where this Court held that the Eighth Amendment prohibits States from inflicting the death penalty upon insane prisoners. Although the court therefore reviewed petitioner's incompetency claim without deferring to the state court's finding of competency, it nevertheless granted no relief, finding that petitioner had not demonstrated that he met the standard for incompetency. Under Fifth Circuit precedent, the court explained, petitioner was competent to be executed so long as he knew the fact of his impending execution and the factual predicate for it. The Fifth Circuit affirmed.

Held:

1. This Court has statutory authority to adjudicate the claims raised in petitioner's second federal habeas application. Because § 2244(b)(2) requires that "[a] claim presented in a second or successive . . . [§ 2254] application . . . that was not presented in a prior application . . . be dismissed," the State maintains that the failure of petitioner's first § [*4] 2254 application to raise a Ford-based incompetency claim deprived the District Court of jurisdiction. The results this argument would produce show its flaws. Were the State's interpretation of "second or successive" correct, a prisoner would have two options: forgo the opportunity to raise a Ford claim in federal court; or raise the claim in a first federal habeas application even though it is premature. Stewart v. Martinez-Villareal, 523 U.S. 637, 644. The dilemma would apply not only to prisoners with mental conditions that, at the time of the initial habeas filing, were indicative of incompetency but also to all other prisoners, including those with no early sign of mental illness. Because all prisoners are at risk of deteriorations in their mental state, conscientious defense attorneys would be obliged to file unripe (and, in many cases, meritless) Ford claims in each and every § 2254 application. This counterintuitive approach would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any. The more reasonable interpretation of § 2244, suggested by this Court's precedents, is that Congress did not intend the [*5] provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addressing "second or successive" habeas petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe. See, e.g., Martinez-Villareal, supra, at 643-645. This conclusion is confirmed by AEDPA's purposes of "furthering comity, finality, and federalism," Miller-El v. Cockrell, 537 U.S. 322, 337, "promoting judicial efficiency and conservation of judicial resources, . . . and lending finality to state court judgments within a reasonable time," Day v. McDonough, 547 U.S. 198, 205-206. These purposes, and the practical effects of the Court's holdings, should be considered when interpreting AEDPA, particularly where, as here, petitioners "run the risk" under the proposed interpretation of "forever losing their opportunity for any federal review of their unexhausted claims," Rhines v. Weber, 544 U.S. 269, 275. There is, finally, no argument in this case that petitioner proceeded in a manner that could be considered an abuse of [*6] the writ. Cf. Felker v. Turpin, 518 U.S. 651, 664. To the contrary, the Court has suggested that it is generally appropriate for a prisoner to wait before seeking the resolution of unripe incompetency claims. See, e.g., Martinez-Villareal, supra, at 644-645. Pp. 9-15.

2. The state court failed to provide the procedures to which petitioner was entitled under the Constitution. Ford identifies the measures a State must provide when a prisoner alleges incompetency to be executed. Justice Powell's opinion concurring in part and concurring in the judgment in Ford controls, see Marks v. United States, 430 U.S. 188, 193, and constitutes "clearly established" governing law for AEDPA purposes, § 2254(d)(1). As Justice Powell elaborated, once a prisoner seeking a stay of execution has made "a substantial threshold showing of insanity," 477 U.S., at 424, the Eighth and Fourteenth Amendments entitle him to, inter alia, a fair hearing, ibid., including an opportunity to submit "expert psychiatric evidence that may differ from the State's own psychiatric examination," id., at 427. The procedures [*7] the state court provided petitioner were so deficient that they cannot be reconciled with any reasonable interpretation of the Ford rule. It is uncontested that petitioner made a substantial showing of incompetency. It is also evident from the record, however, that the state court reached its competency determination without holding a hearing or providing petitioner with an adequate opportunity to provide his own expert evidence. Moreover, there is a strong argument that the court violated state law by failing to provide a competency hearing. If so, the violation undermines any reliance the State might now place on Justice Powell's assertion that "the States should have substantial leeway to determine what process best balances the various interests at stake." Id., at 427. Under AEDPA, a federal court may grant habeas relief, as relevant, only if a state court's "adjudication of [a] claim on the merits . . . resulted in a decision that . . . involved an unreasonable application" of the relevant federal law. § 2254(d)(1). If the state court's adjudication is dependent on an antecedent unreasonable application of federal law, that requirement is satisfied, and [*8] the federal court must then resolve the claim without the deference AEDPA otherwise requires. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534. Having determined that the state court unreasonably applied Ford when it accorded petitioner the procedures in question, this Court must now consider petitioner's claim on the merits without deferring to the state court's competency finding. Pp. 15-21.

3. The Fifth Circuit employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. Pp. 21-28.

(a) The Fifth Circuit's incompetency standard is too restrictive to afford a prisoner Eighth Amendment protections. Petitioner's experts in the District Court concluded that, although he claims to understand that the State says it wants to execute him for murder, his mental problems have resulted in the delusion that the stated reason is a sham, and that the State actually wants to execute him to stop him from preaching. The Fifth Circuit held, based on its earlier decisions, that such delusions are simply not relevant to whether a prisoner can be executed so long as he is aware that the State has identified the link [*9] between his crime and the punishment to be inflicted. This test ignores the possibility that even if such awareness exists, gross delusions stemming from a severe mental disorder may put that awareness in a context so far removed from reality that the punishment can serve no proper purpose. It is also inconsistent with Ford, for none of the principles set forth therein is in accord with the Fifth Circuit's rule. Although the Ford opinions did not set forth a precise competency standard, the Court did reach the express conclusion that the Constitution "places a substantive restriction on the State's power to take the life of an insane prisoner," 477 U.S., at 405, because, inter alia, such an execution serves no retributive purpose, id., at 408. It might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the victim's surviving family and friends, to affirm its own judgment that the prisoner's culpability is so serious that the ultimate penalty must be sought and imposed. Both the potential for this recognition [*10] and the objective of community vindication are called into question, however, if the prisoner's only awareness of the link between the crime and the punishment is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole. A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. To refuse to consider evidence of this nature is to mistake Ford's holding and its logic. Pp. 21-28.

(b) Although the Court rejects the Fifth Circuit's standard, it does not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be because it was developed by the District Court under the rejected standard, and, thus, this Court finds it difficult to amplify its conclusions or to make them more precise. It is proper to allow the court charged with overseeing the development of the evidentiary record the initial opportunity to resolve petitioner's constitutional claim. Pp. 28-30.

448 F.3d 815, reversed and remanded. [*11]

JUDGES: KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined.

OPINION: JUSTICE KENNEDY delivered the opinion of the Court.

"The Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane." Ford v. Wainwright, 477 U.S. 399, 409-410 (1986). The prohibition applies despite a prisoner's earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford.

Scott Louis Panetti, referred to here as petitioner, was [*12] convicted and sentenced to death in a Texas state court. After the state trial court set an execution date, petitioner made a substantial showing he was not competent to be executed. The state court rejected his claim of incompetency on the merits. Filing a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, petitioner claimed again that his mental condition barred his execution; that the Eighth Amendment set forth a substantive standard for competency different from the one advanced by the State; and that prior state-court proceedings on the issue were insufficient to satisfy the procedural requirements mandated by Ford. The State denied these assertions and argued, in addition, that the federal courts lacked jurisdiction to hear petitioner's claims.

We conclude we have statutory authority to adjudicate the claims petitioner raises in his habeas application; we find the state court failed to provide the procedures to which petitioner was entitled under the Constitution; and we determine that the federal appellate court employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits. [*13] We therefore reverse the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further consideration.

I

On a morning in 1992 petitioner awoke before dawn, dressed in camouflage, and drove to the home of his estranged wife's parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife's mother and father. He took his wife and daughter hostage for the night before surrendering to police.

Tried for capital murder in 1995, petitioner sought to represent himself. The court ordered a psychiatric evaluation, which indicated that petitioner suffered from a fragmented personality, delusions, and hallucinations. 1 App. 9-14. The evaluation noted that petitioner had been hospitalized numerous times for these disorders. Id., at 10; see also id., at 222. Evidence later revealed that doctors had prescribed medication for petitioner's mental disorders that, in the opinion of one expert, would be difficult for a person not suffering from extreme psychosis even to tolerate. See id., at 233 ("I can't imagine anybody getting that dose waking up for two to three days. You cannot take that kind of medication [*14] if you are close to normal without absolutely being put out"). Petitioner's wife described one psychotic episode in a petition she filed in 1986 seeking extraordinary relief from the Texas state courts. See id., at 38-40. She explained that petitioner had become convinced the devil had possessed their home and that, in an effort to cleanse their surroundings, petitioner had buried a number of valuables next to the house and engaged in other rituals. Id., at 39. Petitioner nevertheless was found competent to be tried and to waive counsel. At trial he claimed he was not guilty by reason of insanity.

During his trial petitioner engaged in behavior later described by his standby counsel as "bizarre," "scary," and "trance-like." Id., at 26, 21, 22. According to the attorney, petitioner's behavior both in private and in front of the jury made it evident that he was suffering from "mental incompetence," id., at 26; see also id., at 22-23, and the net effect of this dynamic was to render the trial "truly a judicial farce, and a mockery of self-representation," id., at 2

Florida v. Nixon

Williams v. Taylor

SUPREME COURT OF THE UNITED STATES
529 U.S. 420; 120 S. Ct. 1479; 146 L. Ed. 2d 435

MICHAEL WAYNE WILLIAMS v. JOHN TAYLOR, WARDEN

No. 99-6615

February 28, 2000, Argued

April 18, 2000, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

DISPOSITION: 189 F.3d 421, affirmed in part, reversed in part, and remanded.

SYLLABUS:

After petitioner was convicted of two capital murders and other crimes, he was sentenced to death. The Supreme Court of Virginia affirmed on direct appeal and later dismissed petitioner's state habeas corpus petition. He then sought federal habeas relief, requesting, among other things, an evidentiary hearing on three constitutional claims, which he had been unable to develop in the state-court proceedings. Those claims were that (1) the prosecution had violated Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, in failing to disclose a report of a pretrial psychiatric examination of Jeffrey Cruse, petitioner's accomplice and the Commonwealth's main witness against petitioner; (2) the trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias; and (3) a prosecutor committed misconduct in failing to reveal his knowledge of the juror's possible bias. The District Court granted an evidentiary hearing on, inter alia, the latter two claims, but denied a hearing on the Brady claim. Before any hearing could be held, however, the Fourth Circuit granted the Commonwealth's requests for an emergency stay and for a writ of mandamus and prohibition, which were based on the argument that an evidentiary hearing was prohibited by 28 U.S.C. § 2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy § 2254(e)(2)'s requirements. In affirming, the Fourth Circuit agreed with petitioner's argument that the statute would not apply if he had exercised diligence in state court, but held, among other things, that he had not been diligent and so had "failed to develop the factual basis of [his three] claims in State court," § 2254(e)(2). The court concluded that petitioner could not satisfy the statute's conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing.

Held: Under § 2254(e)(2), as amended by AEDPA, a "failure to develop" a claim's factual basis in state court proceedings is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or his counsel. The statute does not bar the evidentiary hearing petitioner seeks on his juror bias and prosecutorial misconduct claims, but bars a hearing on his Brady claim because he "failed to develop" that claim's factual basis in state court and concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency. Pp. 6-22.

(a) Petitioner filed his federal habeas petition after AEDPA's effective date, so his case is controlled by § 2254(e)(2)'s opening clause, which specifies that "if the [federal habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim" unless the applicant makes specified showings. Pp. 6-8.

(b) The analysis begins with the language of the statute. Although "fail" is sometimes used in a neutral way, not importing fault or want of diligence, this is not the sense in which the word "failed" is used in § 2254(e)(2). A statute's words must be given their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import. E.g., Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207, 136 L. Ed. 2d 644, 117 S. Ct. 660. In its customary and preferred sense, "fail" connotes some omission, fault, or negligence on the part of the person who has failed to do something. If Congress had instead intended a "no-fault" standard, it would have had to do no more than use, in lieu of the phrase "has failed to," the phrase "did not." This interpretation has support in Keeney v. Tamayo-Reyes, 504 U.S. 1, 8, 118 L. Ed. 2d 318, 112 S. Ct. 1715, whose threshold standard of diligence is codified in § 2254(e)(2)'s opening clause. The Court's interpretation also avoids putting § 2254(e)(2) in needless tension with § 2254(d), which authorizes habeas relief if the prisoner developed his claim in state court and can prove the state court's decision was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." This Court rejects the Commonwealth's arguments for a "no-fault" reading: that treating the prisoner's lack of diligence in state court as a prerequisite for application of § 2254(e)(2) renders a nullity of § 2254(e)(2)(A)(ii)'s provision requiring the prisoner to show "a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence"; and that anything less than a no-fault understanding of § 2254(e)(2) is contrary to AEDPA's purpose to further comity, finality, and federalism principles. Pp. 8-15.

(c) Petitioner did not exercise the diligence required to preserve his claim that nondisclosure of Cruse's psychiatric report contravened Brady. The report, which mentioned Cruse had little recollection of the murders because he was intoxicated at the time, was prepared before petitioner was tried; yet it was not raised by petitioner until he filed his federal habeas petition. Given evidence in the record that his state habeas counsel knew of the report's existence and its potential importance, yet failed to investigate in anything but a cursory manner, this Court is not satisfied with petitioner's explanation that, although an investigator for his federal habeas counsel discovered the report in Cruse's court file, his state counsel had not seen the report when he reviewed the same file. Because this constitutes a failure to develop the factual basis of petitioner's Brady claim in state court, this Court must determine if the requirements in the balance of § 2254(e)(2) are satisfied so that petitioner's failure is excused. Subparagraph (B) of § 2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, and the case has been presented to this Court on that premise. Accordingly, the Fourth Circuit's judgment barring an evidentiary hearing on this claim is affirmed. Pp. 15-18.

(d) However, petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in state court. Those claims are based on two questions posed by the trial judge at voir dire. First, the judge asked prospective jurors whether any of them was related to, inter alios, Deputy Sheriff Meinhard, who investigated the crime scene, interrogated Cruse, and later became the prosecution's first witness. Venire member Stinnett, who had divorced Meinhard after a 17-year marriage and four children, remained silent, thereby indicating the answer to the question was "no." Second, the judge asked whether any prospective juror had ever been represented by any of the attorneys in the case, including prosecutor Woodson. Stinnett again said nothing, although Woodson had represented her during her divorce from Meinhard. Later, Woodson admitted he knew Stinnett and Meinhard had been married and divorced, but stated that he did not consider divorced people to be "related" and that he had no recollection of having been involved as a private attorney in the divorce. Stinnett's silence after the first question could suggest to the factfinder an unwillingness to be forthcoming; this in turn could bear on her failure to disclose that Woodson had been her attorney. Moreover, her failure to divulge material information in response to the second question was misleading as a matter of fact because Woodson was her counsel. Coupled with Woodson's own reticence, these omissions as a whole disclose the need for an evidentiary hearing. This Court disagrees with the Fourth Circuit's conclusion that petitioner's state habeas counsel should have discovered Stinnett's relationship to Meinhard and Woodson. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett's nonresponse was a deliberate omission of material information, and counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. Moreover, because state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts, so that he cannot be said to have failed to develop the facts in state court by reason of having neglected to pursue remedies available under Virginia law. The foregoing analysis establishes cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the lower courts during further proceedings. These courts should take due account of the District Court's earlier decision to grant an evidentiary hearing based in part on its belief that Stinnett deliberately lied on voir dire. Pp. 18-22.

189 F.3d 421, affirmed in part, reversed in part, and remanded.

COUNSEL: John H. Blume argued the cause for petitioner.

Donald R. Curry argued the cause for respondent.

JUDGES: KENNEDY, J., delivered the opinion for a unanimous Court.

OPINION: [*424] [***444] [**1484] JUSTICE KENNEDY delivered the opinion of the Court.

[***HR1A] [***HR2A] [***HR3A] [***HR4A] Petitioner Michael Wayne Williams received a capital sentence for the murders of Morris Keller, Jr., and Keller's wife, Mary Elizabeth. Petitioner later sought a writ of habeas corpus in federal court. Accompanying his petition was a request for an evidentiary hearing on constitutional claims which, he alleged, he had been unable to develop in state-court proceedings. The question in this case is whether 28 U.S.C. § 2254(e)(2) (1994 ed., Supp. III), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, bars the evidentiary hearing petitioner seeks. If petitioner "has failed to develop the factual basis of [his] claims in State court proceedings," his case is subject to § 2254(e)(2), and he may not receive a hearing because he concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency.

I

On the evening of February 27, 1993, Verena Lozano James dropped off petitioner and his friend Jeffrey Alan Cruse near a local store in a rural area of Cumberland County, Virginia. The pair planned to rob the store's employees and customers using a .357 revolver petitioner had stolen in the course of a quadruple murder and robbery he had committed two months earlier. Finding the store closed, petitioner and Cruse walked to the Kellers' home. Petitioner was familiar with the couple, having grown up down the road from where they lived. He told Cruse they would have "a couple thousand dollars." App. 78. Cruse, who had been holding the .357, handed the gun to petitioner and knocked on the door. When Mr. Keller opened the door, petitioner pointed the gun at him as the two intruders forced their way inside. Petitioner and Cruse forced Mr. Keller to the kitchen, where [*425] they discovered Mrs. Keller. Petitioner ordered the captives to remove their clothing. While petitioner kept guard on the Kellers, Cruse searched the house for money and other valuables. He found a .38-caliber handgun and bullets. Upon Cruse's return to the kitchen, petitioner had Cruse tie their captives with telephone cords. The Kellers were confined to separate closets while the intruders continued ransacking the house.

When they gathered all they wanted, petitioner and Cruse decided to rape Mrs. Keller. With Mrs. Keller pleading with them not to hurt her or her husband, petitioner raped her. Cruse did the same. Petitioner then ordered the Kellers to shower and dress and "take a walk" with him and Cruse. Id. at 97. As they were leaving, petitioner told Mrs. Keller he [***445] and Cruse were going to burn down the house. Mrs. Keller begged to be allowed to retrieve her marriage license, which she did, guarded by petitioner.

As the prosecution later presented the case, details of the murders were as follows. Petitioner, now carrying the .38, and Cruse, carrying the .357, took the Kellers to a thicket down a dirt road from the house. With petitioner standing behind Mr. Keller and Cruse behind Mrs. Keller, petitioner told Cruse, "We'll shoot at the count of three." Id. at 103. At the third count, petitioner shot Mr. Keller in the head, and Mr. Keller collapsed to the ground. Cruse did not shoot Mrs. Keller at the same moment. Saying "he didn't want to leave no witnesses," petitioner urged Cruse to shoot Mrs. Keller. Ibid. Cruse fired one shot into her head. Despite his wound, Mr. Keller stood up, but [**1485] petitioner shot him a second time. To ensure the Kellers were dead, petitioner shot each of them two or three more times.

After returning to the house and loading the stolen property into the Kellers' jeep, petitioner and Cruse set fire to the house and drove the jeep to Fredericksburg, Virginia, where they sold some of the property. They threw the remaining [*426] property and the .357 revolver into the Rappahannock River and set fire to the jeep.

Pursuing a lead from Verena James, the police interviewed Cruse about the fire at the Kellers' home. Petitioner had fled to Florida. Cruse provided no useful information until the police discovered the bodies of the victims, at which point Cruse consulted counsel. In a plea bargain Cruse agreed to disclose the details of the crimes in exchange for the Commonwealth's promise not to seek the death penalty against him. Cruse described the murders but made no mention of his own act of rape. When the Commonwealth discovered the omission, it revoked the plea agreement and charged Cruse with capital murder.

Petitioner was arrested and charged with robbery, abduction, rape, and the capital murders of the Kellers. At trial in January 1994, Cruse was the Commonwealth's main witness. He recounted the murders as we have just described. Cruse testified petitioner raped Mrs. Keller, shot Mr. Keller at least twice, and shot Mrs. Keller several times after she had been felled by Cruse's bullet. He also described petitioner as the mastermind of the murders. The circumstances of the first plea agreement between the Commonwealth and Cruse and its revocation were disclosed to the jury. App. 158-159. Testifying on his own behalf, petitioner admitted he was the first to shoot Mr. Keller and it was his idea to rob the store and set fire to the house. He denied, however, raping or shooting Mrs. Keller, and claimed to have shot Mr. Keller only once. Petitioner blamed Cruse for the remaining shots and disputed some other parts of Cruse's testimony.

The jury convicted petitioner on all counts. After considering the aggravating and mitigating evidence presented during the sentencing phase, the jury found the aggravating circumstances of future dangerousness and vileness of the crimes and recommended a death sentence. The trial court imposed the recommended sentence. The Supreme Court [*427] of Virginia affirmed petitioner's convictions and sentence, Williams v. Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), and we denied certiorari, [***446] Williams v. Virginia, 515 U.S. 1161, 132 L. Ed. 2d 858, 115 S. Ct. 2616 (1995). In a separate proceeding, Cruse pleaded guilty to the capital murder

 

 

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