In October 1994,
Thomas Lee Royal was sentenced to death for the February 21, 1994
capital murder of police officer Kenneth Wallace.
Kenneth was killed
as part of a "hit list" of law enforcement officials.
Three men and two teenagers were
charged with his murder. Kenneth was shot twice in the head while
patrolling the Wythe area of Hampton on Feb. 21, 1994. He died four
The prosecutor on the alleged hit
list had spent the previous 2 1/2 years working with a joint
federal-state drug-prosecution task force serving several Virginia
She was pursuing state drug
trafficking charges against Sammie Lee Royal, 22, the brother of
Thomas Lee Royal. Sammie Royal had been arrested four times in
Hampton in the four months before the murder, twice on drug charges,
but apparently was released on bond each time.
Wallace, 29, a seven-year veteran,
was shot twice in the head as he sat in his patrol car. Police said
that a .22-caliber revolver and a .380-caliber semiautomatic were
used in the attack. Wallace died four days later after surgery to
remove a bullet that lodged in his skull.
Royal said he had planned to kill
a police officer in retaliation for his brother being arrested on
drug charges. When Royal discovered Wallace in the patrol car
instead of the officer he intended to kill, he shot Wallace.
Royal's accomplices were Juan
Morillo, 33, Willie C. Sanders, 33, and a 15-year-old Newport News
Royal and another man not involved
in the Wallace shooting were also charged with the 1991 murder of
James Smith Jr. in Hampton.
Thomas Lee Royal Jr., 99-11-09, Virginia
Thomas Lee Royal Jr. raised his head from the padded gurney, scanned
the room and told witnesses he was ready to die.
"I just want to say, how you gonna kill a man when a man is willing
to die? Remember Wallace wasn't ready to die."
With that obscure message, Royal told the execution team at
Greensville Correctional Center, "Let's roll," and was executed by
lethal injection Tuesday night for the Feb. 21, 1994, shooting death
of Hampton Police Officer Kenny Wallace.
The U.S. Supreme Court and Gov. Jim Gilmore denied a last-minute
appeal by Royal's attorney, Barbara L. Hartung of Richmond.
Royal was led into the death chamber at 8:55 p.m. and officers
strapped his wrists, thighs, chest and ankles to the gurney. He was
wearing baggy denim pants and a light-blue shirt. He shook his
dreadlocks into place before resting his head on the gurney.
Moments later, the vinyl blue curtain closed, shielding witnesses
from the medical team that inserted 2 intravenous needles into each
of Royal's arms. It was the plastic tube in the right arm that
delivered three different chemicals into his body.
A few bubbles could be seen moving the liquid toward the body. The
tube wiggled continuously.
At 9:06 p.m., Warden Dave Garraghty announced that Royal was dead.
Volunteer prison chaplain Bob West, and his wife, Sarah, were among
the last people to visit Royal on Tuesday. During the visit, West
"We had been with him since 3 o'clock," said West, who joined
witnesses in a room facing the gurney. "We had dinner with him. He's
prepared to die. He knows he's been forgiven."
Royal visited with a multitude of relatives throughout the day,
including his mother and stepfather, father and stepmother, wife and
3 children, 3 sisters and his maternal grandparents. He was allowed
to have contact visits with them between 9 and 11 a.m. and 1 and 3
p.m. The family then had to leave the prison grounds.
Royal's brother, whose arrest led to the retaliatory shooting of
Wallace, did not visit. He most likely could not get into the prison
because of his felony record, said Department of Corrections
spokesman Larry Traylor.
Traylor said Royal was served his last meal of chicken, french fries,
pineapple upside-down cake and ice tea at 5:11 p.m.
About 100 protesters, most of them operating under the umbrella
group Virginians for Alternatives to the Death Penalty, gathered in
a field just a few yards from the entrance to the prison. Under the
glow of prison lights, they formed a circle around a small public-address
Some protesters held candles in the clear and cool autumn night.
Speakers stepped to the microphone to read condemnations of the
death penalty issued over the years by various churches and
religions. Bud Welch, whose daughter was killed in the Oklahoma City
bombing, then addressed the crowd, telling them executions have "no
social redeeming value."
Tim Stanton, one of the protest organizers, said the group was not
"I'd like to see Thomas Royal spend the rest of his life in prison,"
said Stanton. "When we as a society kill, we send out a message to
the rest of society that we are condoning violence."
The Supreme Court refused to intervene in the execution just after 6
p.m. Gilmore cleared the way for the execution when he issued a
short statement around 7 p.m. saying he also would not intervene.
Thomas and Evangeline Wallace, the slain officer's parents, chose
not to attend the execution.
In a telephone interview from the Wallace's Hampton home, Thomas
Wallace said the family is "satisfied with the outcome."
"I think justice was met, and I think Thomas Royal realizes that his
actions constituted what he received," Thomas Wallace said. "My
whole family is satisfied that he will not be back in society."
Witnessing the execution was Hampton Police Officer Curtis Cooper,
who was a friend of Wallace's. It was Cooper that Royal had intended
to kill. When Royal found Wallace in the cruiser, he opened fire
As a van carried execution witnesses from the prison, two
corrections officers waited outside a blue ambulance that would
carry Royal's body to Richmond, where an autopsy will be performed
by the state medical examiner.
On Royal's death certificate, a single word will list the cause:
(source: Daily Press)
Thomas Lee ROYAL Jr.
At 8:54 p.m. a door opens and the condemned man,
flanked by corrections officers, takes four steps to a gurney.
Without ceremony, practiced members of the execution team place him
flat on his back on a pad covered by a crisp white sheet. They
quickly and deftly fasten a half-dozen heavy brown leather straps
that render the prisoner immobile.
The inmate is curious. He lifts his head and watches the officers
strap him down, looks about the small, gray room at corrections
officials, and peers into the witness booth. He had never before
seen the Greensville Correctional Center's death chamber.
Finally, Thomas Lee Royal Jr. drops his head and stares blankly at
the ceiling. It's 8:56 p.m. and he has 10 minutes to live, not a
moment longer. Virginia has executions down pat.
A blue plastic curtain is drawn for 4 minutes in front of the
witness booth to protect the identity of the executioners -- 2
Department of Corrections medical technicians -- as they attach IVs
and a heart monitor to Royal. They swab the IV needle insertion
points with alcohol to prevent infection. Right up to the moment it
kills him, the state is responsible for Royal's good health.
Afterward, the anonymous executioners step behind another blue
curtain with two ports through which the IV and heart monitor lines
When the curtain in front of the witness booth reopens, Royal lies
on the gurney with his bound arms outstretched on the perpendicular
wings of the gurney, an arrangement that gives the impression of a
horizontal crucifixion. The tubes that will deliver the lethal
fluids into Royal are taped onto both arms.
A minister says a few words over Royal; the condemned man continues
to stare at the ceiling.
Corrections Director Ron Angelone clasps the red phone that links
the death chamber to the office of Gov. Jim Gilmore in case the
governor decides at the last minute to grant clemency. He doesn't.
On the other side of the chamber, a prison official holds open a
phone line to the warden's office in case there's a last-second
reprieve from the courts, which usually communicate with the prison
via fax. No reprieve comes.
The wall clock in the death chamber reads 9 p.m. -- the appointed
hour for Royal to die for murdering a Hampton police officer. He is
asked if he has any last words.
"Let's roll," he says.
The warden steps behind the curtain and tells the technicians to
administer the chemicals.
At 9:01 p.m. the tube attached to Royal's right arm jiggles as the
1st chemical -- a drug that puts him to sleep in about 20 seconds --
flows through it. A 2nd chemical will follow, stopping Royal's
breathing. A 3rd will stop his heart.
Royal takes several deep breaths, then is still. His eyes close.
It takes three or four minutes to manually empty syringes containing
the chemicals into the IV tube. The line to Royal's left arm serves
as a backup in case something goes wrong with the primary line. That
has been necessary 3 or 4 times, but not for Royal.
About 35 people in the death chamber solemnly watch the process by
which government exercises its ultimate authority -- the power to
take a life.
After 6 minutes of funereal silence, prison warden David Garraghty
steps from behind the curtain hiding the executioners and the doctor
whose job is to pronounce Royal dead.
Garraghty says Royal died at
9:06 p.m. The doctor knows Royal is dead because the heart monitor
had been showing a flat line for several seconds. If it hadn't the
technicians would have readministered the second and third drugs in
the series until Royal was dead.
The blue curtain in front of the witness booth is pulled immediately
after Royal is pronounced dead. Official and press witnesses quietly
file out of the chamber, built on the back of the prison's maximum
security building. They get into white prison vans and are driven
Royal's body is taken out a side door of the death chamber, put into
a dark blue prison ambulance and driven to the state medical
examiner's office in Richmond for an autopsy required by state law.
There, the cause of death is listed as "lethal injection."
(source: Associated Press)
United States Court of
For the Fourth Circuit
THOMAS LEE ROYAL, JR.,
JOHN B. TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.
August 16, 1999
Appeal from the
United States District Court for the Eastern District of Virginia,
MICHAEL, and MOTZ, Circuit Judges.
published opinion. Judge Motz wrote the opinion, in
which Judge Luttig and Judge Michael joined.
DIANA GRIBBON MOTZ,
Thomas Lee Royal
Jr. pled guilty to murdering Officer Kenneth
Wallace, a Virginia policeman. The state court
sentenced him to death. After exhausting his state
remedies, Royal filed a petition for federal habeas
relief, which the district court dismissed. We
On February 21,
1994, after drinking and smoking marijuana, Royal,
Yancy Mitchener, Willie Cardell Sanders, and Eldred
Acklin gathered in the parking lot of a shopping
center in Hampton, Virginia. According to his
recorded confession, Royal distributed .25-caliber
guns to Mitchener and Acklin, a .32-caliber gun to
Sanders, and kept for himself a .380-caliber gun.
The armed men then
set out to find and kill Hampton Police Officer
Curtis Cooper, against whom they had some grudge.
Instead, the men encountered Officer Wallace in his
police cruiser. Royal acknowledged that he realized
Officer Wallace was not Cooper, but that he
proceeded to shoot the officer anyway.
that "[Officer Wallace] pulled up and, you know, I
leaned on the car, getting off the street, and he
said, Are you drunk? And I turned around and said,
No sir, I fired two shots."
After shooting Officer
Wallace, Royal "just turned around and walked away."
Mitchener then approached Officer Wallace's car and,
according to Royal, began shooting into the cruiser
while screaming and laughing. Acklin also fired
shots at the police vehicle.
A local resident,
who had heard the shots, found Officer Wallace
shortly thereafter. When the neighbor arrived, the
door to the cruiser was wide open and the driver's
window was shattered, leaving glass on the ground
under the open door. Officer Wallace was seated in
his cruiser, with several visible gunshot wounds to
the head. He died four days later from the bullet
revealed that Officer Wallace had been hit twice in
the head and that one of these shots was fatal. A
forensic expert later found the fatal bullet to be
consistent with a .380-caliber weapon. The
Commonwealth, however, never recovered the murder
weapon, or any fingerprints from the spent
cartridges found at the scene.
In a videotaped
conversation with investigating officers, Royal
confessed to the murder of Officer Wallace. Although
initially he told investigators that one of the
other gunmen, Willie Sanders, used a .380-caliber
weapon on the night of the murder, Royal immediately
corrected his account and insisted that he alone
carried a .380 that night. At the time, experts had
not yet identified the caliber of the fatal bullet.
Royal pled guilty
to capital murder and use of an illegal firearm. At
sentencing, the court found that Royal posed a
serious threat of future dangerousness and sentenced
him to death. The Virginia Supreme Court affirmed
Royal's sentence, see Royal v. Commonwealth, 458
S.E.2d 575 (Va. 1995), and the United States Supreme
Court denied his petition for certiorari, see Royal
v. Virginia, 516 U.S. 1097 (1996). Royal then filed
a state habeas petition, which the Virginia Supreme
After a federal
court stayed his execution, Royal filed a federal
habeas petition in April, 1997, which he amended in
May, 1997. Royal sought discovery to assist the
pursuit of his claims. The district court permitted
Royal to obtain certain medical x-rays, but
otherwise denied his request for discovery.
Ultimately the district court dismissed Royal's
petition, finding all claims either procedurally
defaulted or without merit. See Royal v. Netherland,
4 F. Supp.2d 540 (E.D. Va. 1998). Later, in an
unpublished opinion, the court denied Royal's motion
to alter or amend the judgment.
Royal raises five
issues on appeal. First, he contends that he is
actually innocent of capital murder. Second, Royal
maintains that the Commonwealth did not reveal
certain exculpatory evidence in a timely manner, in
violation of Brady v. Maryland , 373 U.S. 83 (1963).
Third, Royal asserts ineffective assistance of state
trial counsel based on their failure (a) to pursue a
triggerman defense or obtain independent experts,
which Royal contends misled him into pleading guilty,
and (b) to investigate and present certain
mitigating evidence at the sentencing hearing.
Fourth, Royal argues that the district court erred
in denying him discovery. Finally, Royal contends
that the district court erred in failing to allow
him a full year within which to file his federal
We address each
claim in turn. Because Royal filed his federal
habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of
1996, we review his claims under that Act. See 28
U.S.C.A. § 2254 (West 1994 and Supp. 1999); Lindh v.
Murphy, 521 U.S. 320, 326 (1997); see also Mueller
v. Angelone, 181 F.3d 557, 565-69 (4th Cir.1999).
that he is factually innocent of capital murder
because, under Virginia law, only the triggerman can
be sentenced to death, see Frye v. Commonwealth, 345
S.E.2d 267, 280 (Va. 1986), and new evidence
assertedly reveals that Royal did not fire the fatal
shot in this case.
maintains that his actual innocence in and of itself
renders his conviction and execution violative of
the Eighth and Fourteenth Amendments. Precedent
prevents us from granting Royal's habeas writ on
this basis alone. Because federal habeas relief
exists to correct constitutional defects, not
factual errors, "[c]laims of actual innocence based
on newly discovered evidence have never been held to
state a ground for federal habeas relief absent an
independent constitutional violation occurring in
the underlying state criminal proceeding." Herrera
v. Collins, 506 U.S. 390, 400 (1993).
Herrera Court assumed arguendo that the execution of
a defendant who had made a persuasive claim of
actual innocence would violate the Constitution and
therefore warrant federal habeas relief if no state
relief proceedings were available, it stopped short
of holding that such a claim exists in every case.
Id. at 417.
Rather, the Court
explained that, when available, state clemency
proceedings provide the proper forum to pursue
claims of actual innocence based on new facts. Id.
at 411-12, 417. Virginia has such an executive
clemency process available to Royal. See Va. Code
Ann. §§ 53.1-229 to -231 (Michie 1998); Va. Const.
art. V, § 12. Thus we cannot grant Royal the
requested habeas relief based simply on his
assertion of actual innocence due to newly
discovered evidence. See Herrera, 506 U.S. at
416-17; see also Lucas v. Johnson, 132 F.3d 1069,
1074-76 (5th Cir. 1998).
does not end our inquiry. In addition to claiming
actual innocence as an independent basis for habeas
relief, Royal also argues that it renders his
execution a "fundamental miscarriage of justice,"
thus permitting us to review certain defaulted
claims on their merits. See Schlup v. Delo, 513 U.S.
298 (1995). Such "a claim of `actual innocence' is
not itself a constitutional claim, but instead a
gateway through which a habeas petitioner [can] pass
to have his otherwise barred constitutional claim
considered on the merits." Herrera, 506 U.S. at 404,
113 S.Ct. 853.
In order to use an
actual innocence claim as a procedural gateway to
assert an otherwise defaulted claim, "the petitioner
must show that it is more likely than not that no
reasonable juror would have convicted him in the
light of the new evidence." Schlup, 513 U.S. at 327.
The Schlup Court adopted a broad definition of "new"
evidence to be considered in such cases: a
petitioner must offer"new reliable evidence . . .
that was not presented at trial." Id. at 324; see
also id. at 327-28.
The Court further
explained that a district court undertaking such an
inquiry is not bound by the rules of admissibility
and should make its assessment in light of all
available evidence, including that considered
unavailable or excluded at trial and any evidence
that became available only after trial. Id. at
327-28. With these principles in mind, we review
Royal's claim of actual innocence to determine
whether it entitles him to consideration of his
defaulted constitutional claims on their merits.
that the following constitutes new evidence tending
to show that he is actually innocent of the capital
murder of Officer Wallace. Primarily Royal relies on
the affidavits of two forensic experts who opine
that Officer Wallace was shot through the window of
his cruiser, while seated, by someone who was
These opinions are
based on the downward trajectory of the fatal shot,
the presence of small cuts or "dicing" marks on
Officer Wallace's face, the absence of gun powder
burns around the wounds, and the fact that the
cruiser's window was found shattered. Royal also
points to four .25-caliber shell casings recovered
near the front of Officer Wallace's cruiser and two
.380-caliber shell casings recovered near the rear
of the car. Finally, Royal cites evidence that one
of the .380-caliber shell casings found around the
scene did not come from the same gun as the other
.380 shells, raising the possibility that more than
one person fired a .380 weapon that night.
that this new evidence reveals that he could not
have been the triggerman in this murder.
Specifically, Royal argues that he shot Officer
Wallace not while the officer sat in the cruiser,
but rather after Officer Wallace opened the car door
and stood up. Also, the location of the shell
casings is purportedly inconsistent with Royal's
confession, in which he claims to have shot at
Officer Wallace near the driver's seat rather than
toward the rear of the vehicle. Finally, the
possibility of more than one .380 gun assertedly
indicates that Royal's .380 was not the murder
This new evidence,
however, is also entirely consistent with Royal's
guilty plea and confession. In the course of
admitting his guilt, Royal repeatedly maintained
that he alone carried a .380-caliber weapon.
Moreover, as noted by the Virginia Supreme Court,
the parties stipulated before the state trial court
that "Royal encountered Officer Wallace and fired two
shots from a .380 caliber handgun at Officer Wallace
while Officer Wallace was seated in his police
cruiser." Royal v. Commonwealth, 458 S.E.2d 575, 576
(Va. 1995) (emphasis added). Royal's state habeas
petition likewise states: "Royal spontaneously fired
two shots from the .380 caliber handgun at Wallace
while Wallace was seated in his patrol cruiser." (Emphasis
The only evidence
in the record before us that supports Royal's new
assertion that he shot Officer Wallace after the
officer rose from the seat and stood outside the
cruiser is an affidavit by his trial attorneys. In
the affidavit, defense counsel do recall that Royal
told them that Officer Wallace got out of the car
before Royal shot him; but this affidavit does not
recant the stipulations or Royal's state habeas
assertion that Officer Wallace actually "was seated"
in the car, nor does it even attempt to explain why
those previous assertions should be ignored.
the location where the shell casings were ultimately
found may be inconsistent with a conclusion that
Royal was the triggerman, investigators did not
remove the casings immediately after the shooting.
The record provides uncontroverted evidence that, at
a minimum, two of the other gunmen, a neighbor, and
the police responding to the incident all moved
about at the scene before the recovery of any
evidence. Any one of them could have intentionally
or inadvertently moved the casings, thus minimizing
the importance of exactly where the police
ultimately found the shells.
to forensic experts, the two .380 bullets found in
Officer Wallace's head contained certain unique
characteristics, indicating that the same gun likely
fired both shots. Although the experts were unable
to determine positively whether they came from the
same gun, these similarities, coupled with Royal's
insistence concerning the caliber of firearm used by
each of the gunmen, indicate that Royal alone fired
the fatal shot in this case.
In sum, given the
undisputed evidence that only Royal carried a .380-caliber
weapon and that a .380-caliber bullet inflicted the
fatal wound in Officer Wallace's skull, we cannot
conclude that "it is more likely than not that no
reasonable juror would have convicted [Royal] in the
light of the new evidence." Schlup, 513 U.S. at 327.
Royal has therefore failed to demonstrate that this
is one of the "extremely rare" cases in which a
defendant can show that he is actually innocent such
that his execution would constitute a fundamental
miscarriage of justice entitling him to
consideration of his defaulted claims on their
merits. See id. at 324, 327, 115 S.Ct. 851.
Turning to the
constitutional claims, we first address Royal's
contention that the Commonwealth failed to reveal
certain exculpatory evidence in a timely manner as
required by Brady v. Maryland, 373 U.S. 83 (1963).
The Virginia Supreme Court found this claim
procedurally barred under Slayton v. Parrigan, 205
S.E.2d 680 (Va. 1974), because Royal could have, but
did not, raise the issue on direct appeal. Slayton
is a valid state procedural rule, independent of the
federal question and adequate to support the
judgment. See Smith v. Murray, 477 U.S. 527, 533-39
cannot review this claim on its merits unless Royal
"can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722, 750
Royal argues that
government interference constitutes cause in this
instance. See McCleskey v. Zant, 499 U.S. 467,
493-94 (1991). Shortly after Royal submitted his
guilty plea, the Commonwealth informed Royal's
counsel that a state trooper had planted a
.380caliber gun at the crime scene in order to
corroborate a statement made by one of the other
At the time, the
Commonwealth maintained that this was the only "tainted"
evidence in the case. Royal did not move to withdraw
his plea in response to this revelation, nor did he
raise a Brady claim on direct appeal. Then, after
Royal filed his direct appeal with the Virginia
Supreme Court, but before the court acted, the
Commonwealth sent defense counsel another letter
indicating that the trooper also planted a .25-caliber
cartridge previously characterized as a "legitimate
find." The Government also declined Royal's request
to reveal certain statements made by the other
gunmen involved in the shooting.
that the Commonwealth's unexplained delays in
revealing that some evidence had been planted and
its refusal to turn over statements made by the
other gunmen constitute sufficient cause to excuse
the default of his Brady claim.
Royal's theory is
that it was not until he knew that the police
officer planted evidence against both him (the .380
gun) and another of the gunmen (the .25 cartridge),
that he realized the extent of the weaknesses in the
Commonwealth's case, and that it was too late for
him to act at that point.
Even if Royal were
able to show cause, through government interference
or otherwise, he is unable to demonstrate actual
prejudice resulting from the Brady violation. Brady
holds that "the suppression by the prosecution of
evidence favorable to an accused upon request
violates due process where the evidence is material
either to guilt or to punishment." 373 U.S. at 87 (emphasis
evidence, however, even if favorable to Royal, was
not"material." "[E]vidence is material only if there
is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the
proceeding would have been different. A `reasonable
probability' is a probability sufficient to
undermine confidence in the outcome." United States
v. Bagley, 473 U.S. 667, 682 (1985).
The prosecution in
this case had ample evidence to convict Royal absent
any reliance on the planted evidence or information
gleaned from statements of the other gunmen. Again,
Royal's repeated insistence that he alone used a
.380-caliber weapon to shoot Officer Wallace,
coupled with the forensic reports indicating that
both .380 bullets found in Officer Wallace's head
likely came from the same gun, and that one of them
killed the officer, convince us that any other
evidence the trooper may have planted or any
statements that Royal suggests the police may have
obtained from the other gunmen were simply not
material to Royal's conviction or sentence.
Considering the totality of the circumstances, we
are confident in the result of the case; we do not
find a "reasonable likelihood" that admission of the
allegedly exculpatory evidence would have altered
the result here. Id. at 682-83. Thus, withholding
the evidence could not have caused "actual prejudice"
Royal also asserts
that investigators somehow used the planted evidence
to coerce his confession. The district court
correctly found this argument defaulted under Gray
v. Netherland, 518 U.S. 152 (1996), because Royal
never raised it prior to the federal habeas
proceedings. Finally, for the reasons discussed
above, Royal failed to demonstrate a fundamental
miscarriage of justice based on actual innocence.
Accordingly, we cannot review Royal's Brady claim on
Royal also makes
several ineffective assistance of counsel claims. He
contends that he would not have pled guilty if his
trial counsel had properly investigated and pursued
a triggerman defense or obtained adequate experts.
Royal further argues that his counsel's failure to
investigate and present certain mitigating evidence
at the sentencing hearing denied him effective
assistance of counsel.
Before the district court,
the Commonwealth maintained that the Virginia
Supreme Court had denied these claims on their
merits, and urged the district court to uphold that
denial. Two district judges-one considering the
habeas petition and one considering a motion to
alter or amend the judgment -agreed and denied the
claims on their merits.
On appeal, the
Commonwealth devotes most of its attention to
reiterating its merits arguments; however, it also
briefly asserts that these claims are procedurally
barred. The Commonwealth contends that a federal
habeas court cannot review these claims because the
Virginia Supreme Court dismissed them based on
Anderson v. Warden, 281 S.E.2d 885 (Va. 1981).
Anderson holds that when asserting an ineffective
assistance of counsel claim to invalidate a plea, a
state habeas petitioner is prohibited (absent an
adequate reason) from presenting facts that directly
controvert his prior statements concerning
voluntariness of the plea or adequacy of trial
counsel. Id. at 888.
This rule is at
its core an evidentiary rule, prohibiting a
petitioner from offering evidence impeaching the
admissions he made when he pled guilty. See id. at
887-88; see also, e.g. , Garrett v. Murray, 1991 WL
834854, at *1-2 (Va. Cir. Ct. Mar. 14, 1991) (petitioner
not allowed to admit new facts that challenge prior
statements made in course of plea, citing Anderson;
state habeas court therefore finds challenge to
voluntariness of plea "without merit"). The
Commonwealth asserts that Anderson is also a valid
procedural bar, constituting an adequate and
independent state ground for the judgment.
rule that a federal habeas court will not consider a
claim that was rejected by a state court on an
adequate and independent state-law basis . . . is
not a jurisdictional one." Yeatts v. Angelone, 166
F.3d 255, 260-61 (4th Cir. 1999) (citing Trest v.
Cain, 522 U.S. 87, 118 S. Ct. 478, 480 (1997)).
must be pled as an affirmative defense and the
Commonwealth is "obligated to raise procedural
default as a defense, or [it will] lose the right to
assert the defense thereafter." Gray, 518 U.S. at
165-66; see also Trest, 118 S. Ct. at 480; Fisher v.
Texas , 169 F.3d 295, 300-02 (5th Cir. 1999).
Because in the district court the Commonwealth
failed to raise the issue of Royal's asserted
Anderson default with respect to these claims (indeed
it affirmatively asserted that the claims had been
decided on the merits), it has waived its right to
pursue the matter on appeal.
if a state has waived its right to raise the issue,
we have held that a federal court, in its discretion,
may hold a claim procedurally defaulted. See Yeatts,
166 F.3d at 261; see also Trest, 118 S. Ct. at 480 (leaving
open question of whether federal court can consider
a procedural default sua sponte).
whether to exercise this discretion, Yeatts
instructs us to consider whether a state's waiver
was intentional or inadvertent, "whether justice
requires that the habeas petitioner be afforded with
notice and a reasonable opportunity to present
briefing and argument opposing dismissal," and
whether "interests of comity and judicial efficiency"
support this exercise of discretion. Yeatts, 166
F.3d at 262; see also Fisher, 169 F.3d at 300-02.
considerations in mind, we decline to exercise our
discretion to find these claims procedurally
defaulted. See Fisher, 169 F.3d at 300-02. First,
unlike Yeatts, it appears that in the district court
the Commonwealth intentionally waived this claim.
Cf. 166 F.3d at 261-62 (in Yeatts Commonwealth
asserted on appeal that it believed that it had made
the argument to the district court).
unlike Yeatts, id., the parties here have not "thoroughly
briefed and argued" this issue (each side devotes
only a single conclusory paragraph to it, see Brief
of Appellee at 20; Reply Brief at 17), and we
believe that in these circumstances justice is
better served by not deciding these claims on the
basis of procedural default.
Most importantly, no
comity or judicial efficiency concerns counsel us to
decide these claims on procedural default grounds
rather than on the basis of their evident lack of
merit because here, unlike in Yeatts, the procedural
default is not "obvious," 166 F.3d at 262; indeed,
the scope of the Anderson rule is far from clear.
simply prohibit collateral challenges to a guilty
plea, including claims of ineffective assistance of
counsel that attack the validity of the plea; such a
rule would appear to constitute an adequate and
independent state procedural rule like Slayton, and
would therefore generally bar us from considering
such claims on their merits. See Coleman, 501 U.S.
at 750. Less than a year ago, the Commonwealth
suggested that this was the scope of the Anderson
In that case the
Virginia Supreme Court applied Anderson in precisely
this manner, finding a petitioner's claims
pertaining to counsel's conduct up to and including
the court's acceptance of his guilty plea
procedurally barred by Anderson, but reaching the
merits of challenges to counsel's conduct at
sentencing and on appeal. See Dubois v. Greene, 149
F.3d 1168, 1998 WL 276282, at *3-5 (4th Cir. 1998) (unpublished).
On this understanding of Anderson, we held in an
unreported opinion that the Anderson rule
constituted a valid procedural bar to our
consideration of the petitioner's challenges on
their merits. Id.
In the case at
hand, however, the Commonwealth conclusorily
maintains that Anderson incorporates a broader
procedural bar, preventing a petitioner who has pled
guilty from asserting any collateral challenge based
on ineffective assistance of trial counsel, even a
claim pertaining to sentencing.
Supreme Court here applied Anderson in this more
expansive manner, finding that it barred collateral
consideration not just of Royal's ineffective
assistance claims in connection with the plea but
also of the claim relating to his sentence. If the
Anderson rule encompasses ineffective assistance of
counsel claims that do not challenge the plea but
rather only pertain to sentencing, it may well not
constitute an adequate and independent state
procedural default rule because in Virginia such
claims -unlike challenges to the plea itself -cannot
be raised until the state habeas proceeding. Compare
Walker v. Mitchell, 299 S.E.2d 698, 699-700 (Va.
1983) (ineffective assistance of counsel claims
cannot be raised prior to state habeas action), with
Hall v. Commonwealth, 515 S.E.2d 343, 346-47 (Va. Ct.
App. 1999) (defendant can challenge the
voluntariness of a plea prior to state habeas -e.g.,
in a motion to withdraw the plea -even if the basis
of the challenge is inadequate advice of counsel
concerning whether or not to plead).
In any event,
we are uncertain of the true scope of the Anderson
rule and, consequently, whether it can properly be
considered an adequate and independent state
procedural rule. See Johnson v. Mississippi, 486
U.S. 578, 587 (1988) (rule must be applied regularly
and consistently by the state court in order to
qualify as an "adequate" state ground); see also
Plath v. Moore , 130 F.3d 595, 602 (4th Cir. 1997).
In sum, none of
the factors that led us to dismiss the habeas claim
in Yeatts on the basis of procedural default
supports such a course here. Rather, all of those
factors weigh in favor of resolving these patently
meritless claims on the substantive grounds to which
we now turn.
In order to
prevail on a claim of ineffective assistance of
counsel in connection with a guilty plea, a
petitioner must prove that his counsel's performance
fell below the well-established standard outlined in
Strickland v. Washington, 466 U.S. 668 (1984). See
Hill v. Lockhart, 474 U.S. 52, 57-59 (1985).
Strickland requires proof of both ineffective
representation and actual prejudice -that is, proof
that counsel's performance fell below an objective
standard of reasonableness and that "there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at
In order to satisfy the prejudice
requirement in the context of a challenge to a
guilty plea, the defendant must show "that there is
a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at
59, 106 S.Ct.366.
Royal is unable to
meet either prong of the Strickland standard. In
making strategic decisions concerning what to
investigate or how to proceed at trial, a lawyer may
properly rely on the general truthfulness of his
client as well as the defendant's particular
statements. See Barnes v. Thompson, 58 F.3d 971, 979
(4th Cir. 1995).
repeated assertion that he killed Officer Wallace
and that only he carried a .380-caliber weapon on
the night of the murder, together with the forensic
evidence showing the fatal bullet to be consistent
with a .380 slug, Royal's first two ineffectiveness
claims must fail. We simply cannot conclude, in the
face of such strong evidence, that the conduct of
Royal's counsel fell outside the wide range of
reasonableness afforded attorneys under the
Strickland standard when they chose not to pursue a
triggerman defense or to obtain independent experts.
Similarly, we have
recognized that reliance on evidence of
psychological impairments or personal history as
mitigating factors in sentencing can be a "double-edged
sword." Wright v. Angelone, 151 F.3d 151, 162 (4th
Cir. 1998); see also Barnes, 58 F.3d at 980. Thus we
must also reject Royal's final ineffectiveness claim;
Royal's counsel did not fall below an objective
standard of reasonableness in failing to further
develop or argue mitigating factors at sentencing.
has not demonstrated prejudice with respect to any
of these claims. He has not shown that but for the
assertedly ineffective assistance, a reasonable
defendant would have insisted on proceeding to trial.
See Hill, 474 U.S. at 59.
Given the Commonwealth's
powerful evidence against Royal -including his
recorded confession and corroborating forensic and
ballistic reports-and the circumstances of the crime,
we believe that, even absent counsel's asserted
errors, it is likely that a jury would have
convicted Royal and the judge would have given him
the maximum sentence.
We cannot conclude
that a reasonable defendant in these circumstances
would not have pled guilty. Nor has Royal
demonstrated a "reasonable probability" that his
sentence would have been more lenient had counsel
advanced additional mitigating evidence on his
behalf. Strickland, 466 U.S. at 694. Thus, we find
all of Royal's ineffective assistance claims without
Royal also argues
that the district court erred in denying him
discovery under Habeas Rule 6 concerning his Brady
claims. In Bracy v. Gramley, 520 U.S. 899 (1997),
upon which Royal relies, the Supreme Court explained
that a petitioner demonstrates "good cause" for
habeas discovery "where specific allegations before
the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to
demonstrate that he is entitled to relief." Id. at
908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299
Royal asserts that
he has submitted such specific allegations here.
Because, as we explained above, Royal procedurally
defaulted his Brady claims and has not shown cause
and prejudice or fundamental miscarriage of justice
permitting its consideration on federal habeas, we
cannot agree. The district court therefore did not
abuse its discretion in denying the discovery
request. See Quesinberry v. Taylor, 162 F.3d 273,
279 (4th Cir. 1998).
contends that the district court erred in failing to
allow him a full year within which to file his
federal habeas petition. See 28 U.S.C.A. §
2244(d)(1); Brown v. Angelone, 150 F.3d 370 (4th
Cir. 1998). Any error was harmless. See Brecht v.
Abrahamson, 507 U.S. 619 (1993); Tuggle v.
Netherland, 79 F.3d 1386, 1392-93 (4th Cir. 1996) (Brecht's
harmless error standard applies in federal habeas
counsel, Royal filed a federal habeas petition
within the time period set by the district court.
Moreover, after an initial amendment, which the
district court allowed, Royal made no further
attempt to supplement his petition despite the
passage of nearly another year before the district
court denied the petition; nor does Royal now assert
any new claim that he would like to add to the
petition. He has shown no "actual prejudice"
stemming from the abbreviated deadline. Brecht, 507
U.S. at 637; see also Williams v. Taylor, 189 F.3d
421, 427-28 (4th Cir.1999). Thus, Royal has not
demonstrated that the district court's error exerted
a "substantial and injurious effect or influence" on
the proceedings. Brecht, 507 U.S. at 637, 113 S.Ct.
For the foregoing
reasons, the district court's denial of habeas