Larry Stout, 33,
murdered Jacqueline Kooshian on February 17, 1987 after robbing her
of $1,200 at her dry cleaning store in Staunton. She was stabbed
five inches deep in her throat. Her jugular vein, trachea, and
larynx were severed and she bled to death shortly afterwards.
Killer Executed by
Injection In Virginia Prison
The New York Times
December 12, 1996
In Jarratt, Va., Larry Stout was executed by injection on Tuesday
night for murdering Jacqueline Kooshian, 40, in a $1,200 robbery at
her dry-cleaning shop.
Mr. Stout, 33, said he had pleaded guilty on the
advice of a public defender who told him he would not be sentenced
''My lawyer didn't put on no defense for me,''
Mr. Stout said last month. ''My lawyer told me if I pleaded guilty I
wouldn't get the death sentence. He said, 'Own up to the crime and
be a man.' ''
Five months after pleading guilty, a judge
sentenced Mr. Stout to death.
Mr. Stout apologized to Mrs. Kooshian's family in
his final statement. ''I'm sorry to the family for the pain I have
caused,'' he said. ''I hope this closes the chapter on this.''
95 F.3d 42
Larry Allen STOUT, Petitioner-Appellee,
J.D. NETHERLAND, Warden, Respondent-Appellant.
Larry Allen STOUT, Petitioner-Appellant,
J.D. NETHERLAND, Warden, Respondent-Appellee.
Nos. 95-4008, 95-4007.
United States Court of Appeals, Fourth Circuit.
Argued July 8, 1996.
Decided Sept. 3, 1996.
Before WILKINSON, Chief Judge, and HAMILTON
and WILLIAMS, Circuit Judges.
Larry Allen Stout brought this
action pursuant to 28 U.S.C.A. § 2254 (West 1994), challenging
the constitutionality of his convictions for robbery and capital
murder and his respective sentences of life imprisonment and
The district court granted
relief as to Stout's conviction and sentence for capital murder,
ordering that Stout be granted leave to withdraw his guilty plea
and replead; the court denied relief as to the robbery count.
Virginia now appeals, asserting that the district court erred in
concluding that Stout received constitutionally deficient
representation during the penalty phase of the state-court
Stout cross-appeals the
district court's ruling that certain of his claims were not
properly before the court. Because we conclude that Stout did
not receive ineffective assistance of counsel, we reverse the
portion of the district court's order granting habeas relief on
Stout's conviction and sentence for capital murder and remand
with instructions to reinstate Stout's death sentence. We affirm
the district court's order in all other respects, and thereby
reject Stout's cross-appeal.
Stout pleaded guilty in a
Virginia court to the robbery and capital murder of Jacqueline
Kooshian, the proprietress of a dry cleaning establishment known
as Trimble's Cleaners. Virginia offered the following evidence
in support of Stout's guilty plea.
On February 19, 1987, Stout,
wearing a camouflage jacket, entered Trimble's Cleaners near
closing time when Kooshian was alone in the store. Stout's
girlfriend and accomplice, Debra Littrell, waited for him a
short distance from the entrance to Trimble's Cleaners.
Using a fictitious name, Stout
told Kooshian he was there to pick up some clothing. When
Kooshian turned to the racks of clothing, Stout approached her
from behind, grabbed her by her hair, and slashed her throat
with a knife. Clutching her bleeding throat, Kooshian ran into
the street. A passing motorist stopped to offer assistance, but
Kooshian bled to death en route to a hospital. Littrell left the
scene upon seeing Kooshian run out of the store.
After Kooshian exited
Trimble's Cleaners, Stout absconded with two bank deposit bags
and a purse belonging to Kooshian; these items had been sitting
on a countertop when Stout entered Trimble's. Stout returned to
the apartment he and Littrell shared with her mother, Carole
Lauber, and Lauber's boyfriend, Harley Rathburn. Later, Stout
told Littrell that "the girl could not live the way I cut her."
(J.A. at 149.) The next day, upon learning of Kooshian's death,
Stout stated that he felt "more at ease." (J.A. at 150.)
Littrell confessed her and
Stout's involvement in the crime to Lauber upon learning that
Rathburn intended to use a suitcase he owned in which Stout had
hidden evidence of the robbery and murder. Rathburn later
consented to a search of the suitcase, which revealed a
prescription issued to Jacqueline Kooshian, a telephone card
issued to Trimble's Cleaners, checks payable to Trimble's
Cleaners, a purse, later identified as Kooshian's, that
contained photographs of Kooshian's children,
and a camouflage jacket.
Other evidence at the plea
hearing tended to show that Stout and Littrell premeditated the
robbery. First, Kooshian's mother testified that two days before
the murder, Stout came into Trimble's and spoke briefly with
Kooshian. A Trimble's employee testified that Littrell entered
the store three days before the murder and inquired when
Trimble's closed; the employee also testified that she had
observed Stout "walking past [Trimble's] at different times of
that week of the 19th. He would disappear and then would show
back up standing across the street, directly across from"
Trimble's. (J.A. at 124.) In addition, there was testimony that
Stout had "cased" another dry cleaning establishment up the
A forensic pathologist, Dr.
William Massello, testified that Kooshian suffered "a cutting
wound to the left side of the neck" that "show[ed] a direction
from left to right going slightly downward, cutting into the
soft tissue of the neck and running to the voice box." (J.A. at
179.) The cut was approximately two inches deep at its deepest
point; it became progressively deeper from left to right. The
cut severed one of Kooshian's jugular veins and was "rapidly
lethal." (J.A. at 183.)
Dr. Massello testified that
the wound was characteristic of one inflicted by coming behind
the victim and slashing left to right with the right hand.
Another witness identified the murder weapon by comparing the
tool marks on Kooshian's larynx to the tool marks made by a
hunting knife retrieved from Stout's person upon his arrest.
Stout offered no evidence
during the plea hearing, and his counsel, William Bobbitt,
engaged in only limited cross-examination of the witnesses.
Based on the evidence presented to it, the trial court accepted
Stout's guilty plea and proceeded directly to the penalty phase
of the proceeding.
Over Stout's objection,
Virginia introduced the testimony of three women whom Stout had
robbed in separate incidents during the two months preceding the
attack on Kooshian, while Stout was living in Florida. Two of
the women testified that just before closing, Stout had entered
the convenience stores where they worked alone. Brandishing a
knife, Stout ordered the women to lie on the floor while he took
money from the cash register. The third woman testified that
Stout had snatched her purse outside a restaurant.
Debra Littrell testified that
she and Stout made their living by committing robberies like
those described above. Littrell also testified that she had
overheard Stout and her ex-husband discussing the murder of two
drug dealers; according to Littrell, Stout and her ex-husband
had been hired to commit the murders after the victims reneged
on a narcotics transaction.
Stout then presented his case
in mitigation. Stout first called the chief correctional officer
for the facility in which he was incarcerated, who testified
that Stout had not presented any disciplinary problem. The
parties stipulated that one of Stout's former employers in
Florida would have testified that Stout was an excellent
employee. Stout also called his cellmate, who testified that he
had been helping Stout, who was almost entirely illiterate,
learn to read. The trial court then adjourned the hearing so
that a presentencing report could be prepared.
The sentencing hearing was
reconvened several months later, at which time the presentencing
report was received in evidence. The report contained the
following information regarding Stout's family history:
[Stout] was reared in a
substandard economic situation with very little parental
guidance and without the benefit of an appropriate male role
model. [Stout] is the youngest child born to his mother, Sylvia
Stout, and during our interviews indicated he did not know who
his father was but had always been told he was an Indian....
The domestic situation was such that when [Stout]
was approximately four years old he was placed in a foster home
for a short period of time due to problems which existed between
Stout and Calvin Stout[, Stout's stepfather, described elsewhere
in the report as "an indolent alcoholic,"] as [Calvin] Stout
would not accept [Stout] due to his dark skin color. Stout
recalled being physically abused by [Calvin] Stout which was in
fact confirmed by [Stout's] mother.
The family was said to have remained in the
Des Moines, Iowa area until around 1970 or 1971 when they moved
to the Cedar Rapids, Iowa area. It was stated shortly after this
the family became involved in migrant work[,] ... living in
states such as California, Florida, Washington, Oregon, and
Ohio. Stout himself was very much involved in the work force,
therefore, making it impossible for him to receive any formal
(J.A. at 44.) Bobbitt also
introduced a letter from Stout's mother stating that Stout was
not a violent person but that his migratory childhood and
racially mixed parentage had been hard on him. Bobbitt elected
not to introduce a psychological report that, in addition to
discussing in detail Stout's background of physical and sexual
abuse, noted that Stout suffered from anti-social personality
Stout testified, relating his
history of moving from state to state to follow harvesting work.
Stout told the court that he became addicted to cocaine at the
age of eighteen and acknowledged committing the convenience
store robberies, in addition to other crimes, to support his
Regarding the Kooshian murder,
Stout stated that he entered Trimble's Cleaners, asked Kooshian
for some clothing, walked up behind her with the knife, and told
her to lie on the floor. Stout then said that "[s]he throwed
[sic] her hands up and started hollering and I felt like she
grabbed my wrist or she did it somehow and I went to shove her
and in the long run, she got cut." (J.A. at 338-39.)
Stout told the court that he
felt "[s]cared, sick" after the incident. (J.A. at 339.) He also
expressed remorse for the crime, saying, "I'm sorry for what I
did. If that's [sic] anyway I could bring the lady back, I would,
I would be glad to swap changes with her, she could have her
life back.... I think about it most everyday...." (J.A. at 340.)
On cross-examination, Stout
denied that the hunting knife identified as the murder weapon
was the one he had used in the attack on Kooshian, insisting
instead that he had used a kitchen knife. Stout also denied
killing the two drug dealers, and asserted that he had not "cased"
Trimble's during the week before the robbery.
During his argument to the
trial court regarding sentencing, Bobbitt asserted that the
robbery of Trimble's was an "impulsive act" and that Stout
evidently intended to conduct the same kind of robbery that he
had committed in the convenience store cases, but "things went
wrong." (J.A. at 368.) Bobbitt also argued that, so long as he
was in jail, Stout was not a troublemaker. Further, Bobbitt
maintained that Stout had evidenced his remorse by pleading
guilty to the crime.
The trial court sentenced
Stout to life imprisonment on the robbery charge and to death on
the capital murder charge. Specifically, pursuant to Virginia's
capital sentencing scheme, the court found that Stout "constitute[d]
a continuing serious threat to society" (future dangerousness)
and that the murder of Kooshian "was outrageously or wantonly
vile, horrible or inhuman in that it involved torture, depravity
of mind or an aggravated battery to the victim" (vileness).
Va.Code Ann. § 19.2-264.2 (Michie 1995).
On direct appeal, the Virginia
Supreme Court affirmed Stout's convictions and sentences, see
Stout v. Commonwealth, 376 S.E.2d 288 (Va.1989), and the United
States Supreme Court denied his petition for a writ of
certiorari, see Stout v. Virginia, 492 U.S. 925 (1989).
Stout thereafter filed a
petition for a writ of habeas corpus in state court, raising
numerous issues. The state habeas court--the same judge who
presided over Stout's guilty plea and sentencing hearing--found
that all of Stout's claims were procedurally barred except for
his claim of ineffective assistance of counsel.
The state habeas court denied
this claim on the merits, rejecting, inter alia, Stout's
argument that Bobbitt had been constitutionally ineffective for
failing to advise Stout that a guilty plea to capital murder
included an admission of premeditation and for failing to
conduct a complete investigation into mitigating evidence
regarding Stout's upbringing. The state habeas court explicitly
rejected Stout's claim that Bobbitt had failed to present to the
trial court information regarding Stout's childhood history of
abuse, explaining that:
The Presentence Report ... gave an extensive
narrative of the family and environmental background of the
Petitioner.... The Petitioner testified on his own behalf and
narrated his life from his earliest experiences.... The court
was aware of all the matters in mitigation that the Petitioner
now says were not submitted to the court.
(J.A. at 481 (citations
omitted).) The Supreme Court of Virginia denied leave to appeal.
On October 18, 1991, Stout
filed this federal habeas petition in the United States District
Court for the Western District of Virginia. Stout raised eleven
claims addressing two central issues: the voluntariness of his
guilty plea and the effectiveness of his trial counsel. In
response to Virginia's motion to dismiss, the district court
found that Stout had defaulted any claim that his guilty plea
was involuntary, and accordingly dismissed the claims related to
that issue; the court referred the remainder of Stout's claims
to a magistrate judge.
Thereafter, the magistrate
judge held a two-day evidentiary hearing regarding Stout's
claims of ineffective assistance of counsel. During the hearing,
Stout presented the testimony of three attorneys who testified
that Bobbitt's representation of Stout was constitutionally
deficient due in part to Bobbitt's failure to present mitigating
evidence regarding Stout's childhood, including the
psychological report; several psychologists who testified
regarding the abuse suffered by Stout at the hands of his
stepfather and stated their conclusions that, despite the abuse,
Stout was not a violent individual; and a law enforcement
officer who testified that the wound in Kooshian's neck was
consistent with Stout's version of the crime.
Stout himself testified,
describing the physical and sexual abuse he had suffered as a
child and recounting the events of his childhood, including the
ostracism by his family because of his color and the hardships
of migrant labor. Stout also asserted that he was unable to
understand the plea proceedings, maintaining that when he
pleaded guilty he did not understand the meaning of the word "premeditation"
and stating that he thought it meant something like "relaxation."
(J.A. at 1175.)
Stout further claimed not to
have understood any of the questions the trial court asked him
during the plea colloquy, testifying that Bobbitt nodded or
shook his head after each of the court's questions, thereby
prompting Stout to the correct response.
Virginia responded to Stout's
case with testimony from Bobbitt, who offered explanations for
his decisions, and from Dr. Massello. Bobbitt testified that he
did not introduce the psychological report because he was
concerned that the conclusion in the report that Stout suffered
from anti-social personality disorder might prejudice the court
Dr. Massello stated that the
wound in Kooshian's neck could only be the result of a
purposeful cut and thus was inconsistent with the type of
accidental event claimed by Stout. In response to cross-examination
questions suggesting that, because he is left-handed, Stout
could not have inflicted the wound with his right hand while
standing behind Kooshian, Dr. Massello testified that a person
could have inflicted the wound with either hand, provided the
cutting motion was purposeful rather than accidental.
The magistrate judge
subsequently issued a report and recommendation suggesting that
Stout's petition be denied. The magistrate judge concluded that
Stout had defaulted on all but three of his eleven claims: that
Bobbitt was ineffective for failing to advise Stout that a
guilty plea to capital murder entailed an admission that the
murder was premeditated; that Bobbitt was ineffective for
failing to advise Stout that unadjudicated felonies could be
used as evidence of future dangerousness; and that Bobbitt was
ineffective for failing to investigate mitigating evidence
regarding Stout's background. The magistrate judge rejected
these claims on their merits, concluding that Bobbitt's
representation of Stout had not been constitutionally deficient
in these respects.
Upon de novo review of the
magistrate judge's report and recommendation, the district court
concluded that the writ should be granted. The district court
adopted the magistrate judge's conclusion that Stout had
defaulted all but the three claims and agreed with the
magistrate judge that Bobbitt had not been ineffective for
failing to advise Stout that unadjudicated felonies could be
used as evidence of future dangerousness. The district court
also concurred in the magistrate judge's conclusion that
Bobbitt's advice to plead guilty "was a strategic choice that
fell well within the range of professional compe tency demanded
by the Sixth Amendment." (J.A. at 789.)
Nevertheless, the court
concluded, Bobbitt's approach to the sentencing phase was
constitutionally deficient due to his failure to advise Stout to
enter a plea pursuant to North Carolina v. Alford, 400 U.S. 25,
37-38 (1970) (providing that a defendant may plead guilty
without admitting all elements of the crime charged), and his
failure to present mitigating evidence regarding Stout's
The district court first
discussed Stout's guilty plea. The court observed that, while a
guilty plea was an appropriate choice in light of the wealth of
evidence against Stout, "[g]iven his client's version of the
killing, instructing Stout to admit guilt to the element of
premeditation verged on a breach of counsel's duty to both Stout
and the tribunal." (J.A. at 790.) The district court also
concluded that Stout's plea was neither knowing nor intelligent,
based on the fact that the record did not reveal whether Bobbitt
had ever informed Stout of the option of an Alford plea.
Considering these factors in
light of Stout's version of the crime offered at the sentencing
hearing, the district court concluded that there was a "substantial
likelihood" that Bobbitt's tactics jeopardized Stout's chances
of receiving a life sentence by presenting the trial court with
testimony that seemed "disingenuous or duplicitous." (J.A. at
The district court also
criticized Bobbitt's handling of the sentencing phase,
concluding that "counsel's decision to present virtually no case
in mitigation did not constitute even a plausible strategic
judgment." (J.A. at 795.) Specifically, the district court noted
Bobbitt's "minimal" investigation of mitigating evidence (J.A.
at 797), and discredited Bobbitt's explanation that psychiatric
evidence regarding abuse of Stout by his stepfather was not
introduced for fear that the psychiatrist's diagnosis of anti-social
personality disorder would come out on cross-examination. At the
very least, the court stated, Bobbitt could have presented the
testimony of family members regarding the abuse.
The district court also found
that Stout was prejudiced by Bobbitt's ineffectiveness, finding
that "[c]ounsel's reliance on the sentencer's benevolence
despite the availability of so much more clearly convinces the
court that but for counsel's unprofessional errors there exists
a reasonable probability that the sentencer would have reached a
different decision." (J.A. at 801.) Accordingly, the district
court granted habeas relief as to Stout's capital murder convic
tion, ordering that Stout's guilty plea be vacated and that he
be given the opportunity to enter a new plea within sixty days.
Virginia now appeals, arguing
that Stout did not receive ineffective assistance of counsel or,
alternatively, that Stout was not prejudiced by any failings of
Bobbitt's. Specifically, Virginia maintains that: (1) the
district court was barred from considering whether Stout's
counsel was ineffective for failing to advise Stout to enter an
Alford plea and from holding that Stout's guilty plea was
neither knowing nor intelligent because of Bobbitt's failure to
render such advice; and (2) the district court erred in
concluding that Stout received ineffective assistance of counsel
during the sentencing phase and that Stout was prejudiced by
Bobbitt's inadequate performance.
Stout cross-appeals, arguing that the district court erred in
finding that he procedurally defaulted the remaining issues in
his federal habeas petition. We consider these arguments
Virginia challenges the
district court's conclusion that Bobbitt rendered ineffective
assistance of counsel. Claims of ineffective assistance of
counsel are evaluated pursuant to the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). A finding of
ineffective assistance of counsel under Strickland requires a
two-pronged showing. Id. at 687. First, Stout must show that
Bobbitt's performance "fell below an objective standard of
reasonableness." Id. at 688.
Upon making a showing of
ineffectiveness, Stout must then establish that Bobbitt's errors
prejudiced him. Id. at 692. We review de novo the district
court's legal determination that a habeas petitioner has
satisfied his burden of showing deficient representation and
prejudice. See Savino v. Murray, 82 F.3d 593, 598 (4th
Cir.1996), cert. denied, --- U.S.L.W. ---- (U.S. July 17, 1996)
In determining whether
counsel's performance was objectively unreasonable, Strickland
admonishes us to defer to counsel's tactical decisions,
resisting the temptation to second-guess the adequacy of
counsel's strategy based solely on the fact that that strategy
has resulted in an adverse outcome. See Strickland, 466 U.S. at
689. Rather, "[a] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight[ by] reconstruct[ing] the circumstances of
counsel's challenged conduct, and [ ] evaluat[ing] the conduct
from counsel's perspective at the time." Id. In so doing, "a
court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
It is not enough, however, for
Stout to show that Bobbitt's performance was ineffective;
Strickland also requires Stout to show that he was prejudiced by
Bobbitt's deficiencies. Id. at 692. Absent an actual or
constructive denial of the assistance of counsel, or a showing
that counsel was laboring under an actual conflict of interest,
the defendant is charged with the burden of proving that
counsel's errors "actually had an adverse effect on the defense."
Id. at 692-93.
Moreover, the defendant must
do more than show that counsel's errors might have had an effect
on the proceeding. Id. at 693. A mere "conceivable effect" is
not enough to "undermine[ ] the reliability of the result of the
In order to establish
prejudice, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome." Id. at 694. In the context of a guilty plea,
the prejudice prong is slightly different: "[T]he 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 v. Lockhart, 474 U.S. 52,
We note also that the inquiry
into prejudice must necessarily be conducted on a case-by-case
basis, for "[r]epresentation is an art, and an act or omission
that is unprofessional in one case may be sound or even
brilliant in another." Strickland, 466 U.S. at 693. Of course,
if counsel's actions do not fall below an objective standard of
reasonableness, thereby failing to satisfy the first prong of
the Strickland test, we need not consider the prejudice prong.
Bell v. Evatt, 72 F.3d 421, 430 (4th Cir.1995), cert. denied,
116 S.Ct. 2533 (1996).
Virginia first disputes the
district court's determination that Bobbitt's failure to advise
Stout to enter an Alford plea constituted ineffective assistance
of counsel. Virginia maintains that the district court was
procedurally barred from considering this issue, pointing out
that Stout's first and only mention of the possibility of an
Alford plea is contained in his proposed findings of fact and
conclusions of law submitted to the magistrate judge.
Stout does not dispute this
assertion, but rather argues that the district court did not
rely on Bobbitt's failure to advise an Alford plea to reach its
conclusion that Stout received ineffective assistance of counsel.
According to Stout, the district court "took notice of Alford
only to illustrate that trial counsel could have presented a
coherent strategy throughout the case." (Cross-Appellant's Br.
Assuming without deciding that
the procedural issue raised by Virginia does not bar
consideration of this issue on the merits, we conclude that the
district court erred in granting relief on this basis. The
district court concluded that, although Bobbitt's recommendation
of a guilty plea did not fall below an objectively reasonable
level of performance, given Stout's version of the crime,
Bobbitt was ineffective for failing to advise Stout to enter an
Alford plea, thereby admitting guilt to the murder but denying
the element of premeditation.
The district court evidently
theorized that by advising Stout to enter an unconditional
guilty plea to capital murder--thus necessarily admitting that
the murder was premeditated--Bobbitt was forced to present an
inconsistent defense at sentencing, where Stout testified that
the killing was accidental. The entry of an Alford plea would
have allowed Stout to maintain consistently that he did not
premeditate Kooshian's murder, thereby bolstering his
credibility with the trial court.
In short, the district court
concluded that the entry of an unconditional guilty plea posed a
credibility problem for Stout because it made his testimony that
the murder was an accident appear duplicitous, while the entry
of an Alford plea would have presented no such strategic
We disagree with the district
court's conclusion that the entry of an Alford plea necessarily
would have bolstered Stout's credibility with the trial court.
In our view, an Alford plea could very well have had a negative
effect on Stout's credibility. Although Stout consistently
denied that he premeditated the murder, the evidence is
overwhelming that Stout premeditated the robbery: As detailed
above, Stout was seen observing the activities at Trimble's
Cleaners during the week of the murder and at one point Littrell,
Stout's accomplice, entered the store to inquire when it closed.
These facts, in conjunction with Dr. Massello's testimony that
the wound in Kooshian's neck was caused by a purposeful rather
than accidental cut, provided ample evidence from which the
court could determine that Stout premeditated the murder.
In light of such evidence, the
trial court might have determined that Stout's denial of
premeditation showed a lack of credibility and, more important,
a lack of true remorse for the crime. Bobbitt was thus faced
with two possible courses of action, each of which presented a
unique set of advantages and disadvantages. Where, as here,
counsel makes a reasonable strategic choice based on his
investigation into the facts of the case, we must defer to that
strategic choice. See Strickland, 466 U.S. at 690-91.
Accordingly, we conclude that
Bobbitt's recommendation of an unconditional guilty plea did not
fall outside the broad range of professional competence. Cf.
Bell, 72 F.3d at 427-30 (finding that counsel's recommendation
to pursue a verdict of guilty but mentally ill to a charge of
capital murder in spite of the defendant's denial that he
committed the crime was reasonable in light of the overwhelming
evidence of the defendant's guilt).
Virginia also contends that
the district court erred in concluding that Stout's guilty plea
was not knowing and voluntary because there is no indication in
the record that Bobbitt investigated and advised Stout of the
availability of an Alford plea. While an intent to plead guilty
does not relieve counsel of the duty to investigate possible
defenses, there can be no prejudice resulting from the failure
to investigate a defense that has no reasonable probability of
success. See Savino, 82 F.2d at 599-600.
Here, even the district court
acknowledged that lack of premeditation was at best "a weak
defense." (J.A. at 789.) We conclude that in light of the
surfeit of evidence against Stout, there is no reasonable
probability of success on a claim of lack of premeditation,
whether litigated to a jury or a court as the result of a not-guilty
plea or only to the court as the result of an Alford plea.
Therefore, even if we assume that Bobbitt failed to advise Stout
of the availability of an Alford plea and that such a failure
constitutes inef fective assistance of counsel, Stout suffered
no possible prejudice and thus is not entitled to relief on this
The district court determined
that Bobbitt rendered ineffective assistance of counsel during
the sentencing phase, finding that Bobbitt presented "virtually
no case in mitigation" and that the failure to present a
mitigation case "did not constitute even a plausible strategic
judgment." (J.A. at 795.)
The court concluded that the
amount of mitigating evidence available to Bobbitt was "overwhelming"
(J.A. at 795), including the alcoholism of Stout's parents,
different treatment as a mixed-race child among whites, physical
and sexual abuse, and forced migrant labor. Ultimately, the
district court stated that it could discern "no conceivable
advantage to counsel's approach" to sentencing. (J.A. at 800.)
Virginia disputes this
conclusion, maintaining that Bobbitt's investigation and
presentation of mitigating evidence did not constitute
ineffective assistance of counsel. Stout responds that the
district court correctly determined that Bobbitt's performance
during the sentencing phase was deficient because Bobbitt failed
to investigate and present mitigating evidence regarding Stout's
childhood, despite the fact that Bobbitt had a five-month hiatus
in the sentencing phase to do so. In particular, Stout
challenges Bobbitt's decision not to introduce the psychological
report, which set forth Stout's abusive background in graphic
We set forth principles
guiding the determination of whether counsel is ineffective for
failing to offer evidence in mitigation in Bunch v. Thompson,
949 F.2d 1354 (4th Cir.1991), cert. denied, 505 U.S. 1230
(1992). In Bunch, the petitioner's trial counsel decided not to
introduce testimony of a psychiatrist who "could have informed
the jury of Bunch's stressful childhood, which included domestic
violence, and of his loss of self-esteem following the
dissolution of his marriage." Id. at 1364.
Counsel elected not to provide
this testimony because the psychiatrist had also made findings
that would be damaging to Bunch, and "[c]ounsel feared that the
overall impact of the psychiatric testimony would be to
reinforce all the negative aspects of Bunch's self-destructive
behavior." Id. Counsel also chose not to present the testimony
of certain family members because of their unreliability. Id.
Noting that "[i]t is becoming
all too commonplace to charge even diligent counsel in the midst
of difficult circumstances with the adverse outcome in a capital
case," id. at 1363, we concluded that Bunch's counsel had not
been ineffective. We emphasized that a federal habeas court must
not second-guess counsel's strategic choices, particularly those
choices related to the investigation of mitigating evidence,
which must be evaluated "with an eye for 'reasonableness in all
the circumstances, applying a heavy measure of deference to
counsel's judgments.' " Id. (quoting Strickland, 466 U.S. at
With reference to the
psychiatric testimony, we concluded that to rely upon a reasoned
choice not to introduce such testimony because of negative
conclusions that might surface as a basis for a finding of
ineffective assistance of counsel would be to institute a rule
that psychiatric testimony should always be offered in the
sentencing phase, no matter how counter-productive or damaging.
This we refuse to do.
Trial counsel is too
frequently placed in a no-win situation with respect to possible
mitigating evidence at the sentencing phase of a capital case.
The failure to put on such evidence, or the presentation of
evidence which then backfires, may equally expose counsel to
collateral charges of ineffectiveness. The best course for a
federal habeas court is to credit plausible strategic judgments
in the trial of a state case.
Id. at 1364 (emphasis added).
The import of Bunch is that, provided there is a conceivable
strategic advantage to the decision not to introduce certain
evidence in mitigation, that choice is virtually unassailable on
collateral review. See also Turner v. Williams, 35 F.3d 872,
896-97 (4th Cir.1994) (concluding, based on Bunch, that trial
counsel was not ineffective for limiting his investigation into
the petitioner's background), cert. denied, 115 S.Ct. 1359
We conclude that Bobbitt's
investigation and presentation of mitigating factors did not
constitute ineffective assistance of counsel. There is no
dispute that Bobbitt was aware of Stout's abusive family
background by virtue of the psychological report. During the
hearing before the magistrate judge, Bobbitt testified that he
made the strategic decision not to use the report because it
concluded that Stout suffered from anti-social personality
disorder and was likely to commit acts of violence in the future:
Mr. Stout meets the ... criteria for
Antisocial Personality Disorder.... Since the age of 15, he has
maintained a pattern of irresponsible and antisocial behavior
including an inability to sustain consistent work, failure to
conform to social norms with respect to lawful behaviors as
evidenced by his multiple burglaries and robberies, evidence of
failure to plan ahead such as his impulsive move from Florida to
Virginia and the killing of Mrs. Kooshian during the robbery, as
well as exhibiting a lack of remorse for prior robberies and
burglaries. People with this disorder have a life long history
of altercations from which they appear not to learn from their
(J.A. at 1399-1400.) Bobbitt
concluded that this information would contrast negatively with
his strategy to portray Stout as a non-violent person who was
not likely to cause trouble in the future, thereby precluding a
finding by the trial court of future dangerousness.
Moreover, Bobbitt asserted
that part of the reason he elected to have Stout sentenced by
the court was that he planned to appeal to the judge with legal,
rather than emotional, arguments. Bobbitt also stated that he
contacted or made repeated attempts to contact all potential
witnesses whose names were given to him by Stout and, as noted
above, presented the testimony of several witnesses, all in an
effort to present mitigating evidence without resorting to the
We conclude that under the
very deferential standard enunciated in Bunch, Bobbitt's
representation of Stout during the sentencing phase was not
ineffective. Bobbitt made a conscious, strategic decision not to
present a detailed description of Stout's history for fear that
such information would have an aggravating, rather than
mitigating, effect. Such a fear is certainly a plausible reason
not to present certain evidence; indeed, it is the precise
rationale we validated in Bunch.
Moreover, in light of the
detailed description of Stout's background contained in the
psychological report, there can be little doubt that Bobbitt was
adequately apprised of the relevant information; thus, there was
no lack of adequate investigation. Accordingly, we conclude that
Bobbitt's investigation and presentation of mitigating evidence
did not constitute ineffective assistance of counsel and reverse
the district court's decision to the contrary.
We now turn to the issues
raised in Stout's cross appeal. Finding his contentions to be
without merit, we address them only briefly.
Stout first contends that the
district court erred in concluding that he failed to exhaust in
state court three claims raised in his federal habeas petition
that related to Bobbitt's alleged ineffectiveness in advising
Stout to plead guilty without first ensuring that doing so would
enable Stout to avoid a death sentence. With respect to this
issue, the district court adopted the magistrate judge's
conclusion that although Stout challenged Bobbitt's
effectiveness in state court, Stout "did not assert, either
directly or in language that can fairly be interpreted as such,
that his counsel was ineffective because there was no plea
agreement and the investigation that formed the basis of the
advice to plead guilty was inadequate." (J.A. at 670-71.)
Stout challenges this ruling,
asserting that he raised these claims either in a pro se writ of
error he filed with the Virginia Supreme Court while his case
was pending on direct review, or in his state habeas petition.
We disagree. Our jurisprudence is such that in order to satisfy
the exhaustion requirement, a habeas litigant must present his
claims "face-up and squarely," thus providing the state court
with "a full and fair opportunity" to consider them. Mallory v.
Smith, 27 F.3d 991, 994-95 (4th Cir.) (internal quotation marks
omitted), cert. denied, 115 S.Ct. 644 (1994). Mere "vague
whispers" of a claim are not sufficient to satisfy the
exhaustion requirement. Id. at 995-96.
Based upon our review of the
record, we conclude that neither Stout's pro se pleading on
direct appeal nor his state habeas petition raised the claims
related to Bobbitt's failure to secure a life sentence in
exchange for Stout's guilty plea. We therefore affirm the
district court's conclusion that these claims are procedurally
The district court also
concluded that two claims regarding the validity of Stout's
guilty plea were barred by the rule of Slayton v. Parrigan, 205
S.E.2d 680, 682 (Va.1974), cert. denied, 419 U.S. 1108 (1975).
Under Slayton, a habeas petitioner is barred from pressing a
claim available to him on direct appeal. Since Stout could have,
and should have, challenged the validity of his guilty plea on
direct appeal, the district court concluded, Stout was precluded
from challenging the validity of his plea in any subsequent
Stout asserts that the
procedural bar of Slayton is inadequate for two reasons. First,
Stout posits that the rule is unfair as applied to him because
he could not have challenged his guilty plea on direct appeal
without a change of counsel. This simply is not true; if Stout's
plea was involuntary, (as opposed to being the product of
ineffective assistance of counsel) there is no reason why
Bobbitt could not make such an argument on direct appeal. Second,
Stout maintains that the Slayton rule is not applied
consistently, and therefore falls prey to the rule in James v.
Kentucky, 466 U.S. 341, 348-49 (1984) (holding that a state
procedural bar is not adequate unless the rule is firmly
established and regularly followed).
Stout's assertion that Slayton
is inadequate because the Virginia Supreme Court has never
published an opinion applying Slayton to a challenge to a guilty
plea is unpersuasive. Virginia courts regularly apply Slayton to
claims that could have been raised on direct appeal, but were
not. See, e.g., Strickler v. Murray, 452 S.E.2d 648, 651(Va.),
cert. denied, 116 S.Ct. 146 (1995); Epperly v. Booker, 366
S.E.2d 62, 67 (Va.1988); Fitzgerald v. Bass, 366 S.E.2d 615, 621
(Va.Ct.App.1989) (en banc), cert. denied, 493 U.S. 945 (1989).
Accordingly, we reject Stout's challenge to the district court's
ruling that these claims are procedurally barred.
Finally, Stout maintains that
the district court erred in adopting the magistrate judge's
conclusion that Stout's two remaining claims--that Virginia's
aggravating factors are vague and overbroad and that the trial
court's findings of vileness and future dangerousness were
arbitrary and capricious--were procedurally barred. The
magistrate judge concluded that the vagueness and overbreadth
claims were barred by Stout's guilty plea and the rule in Hawks
v. Cox, 175 S.E.2d 271, 274 (Va.1970) (holding that claims
previously determined are barred from consideration by a habeas
The magistrate judge found
that Stout's claim that the trial court's findings were
arbitrary and capricious was barred by his failure to raise the
issue in state court. See Bassette v. Thompson, 915 F.2d 932,
936-37 (4th Cir.1990), cert. denied, 499 U.S. 982 (1991). We
agree with these conclusions, and therefore reject Stout's
arguments to the contrary.
We conclude that Stout did not
receive ineffective assistance of counsel during the guilt and
sentencing phases of his trial for robbery and capital murder.
Accordingly, we reverse the portion of the district court's
order granting Stout's petition for a writ of habeas corpus and
remand with instructions to reinstate the death sentence as
imposed by the Commonwealth of Virginia.
We reject Stout's contentions on cross-appeal that the district
court erred in concluding that certain of his claims were
procedurally barred, and thus affirm that portion of the
district court's order.
REVERSED IN PART AND AFFIRMED IN