Emmett v. Kelly

Filing 920070126


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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CHRISTOPHER SCOTT EMMETT, Petitioner-Appellant, v. LORETTA K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee. No. 06-14 Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Norman K. Moon, District Judge. (7:05-cv-00329-nkm) Argued: October 26, 2006 Decided: January 23, 2007 Before TRAXLER, GREGORY, and SHEDD, Circuit Judges. Affirmed by published opinion. Judge Traxler wrote the majority opinion, in which Judge Shedd joined. Judge Gregory wrote an opinion concurring in part and dissenting in part. COUNSEL ARGUED: Matthew Leland Engle, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Steven Andrew Witmer, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: William H. Lindsey, Salem, Virginia, for Appellant. Robert 2 EMMETT v. KELLY F. McDonnell, Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. OPINION TRAXLER, Circuit Judge: Appellant Christopher Scott Emmett was convicted by a Virginia jury of the capital murder and robbery of his coworker, John Langley, and sentenced to death. The Supreme Court of Virginia affirmed, see Emmett v. Commonwealth, 569 S.E.2d 39 (Va. 2002), and the United States Supreme Court denied certiorari, see Emmett v. Virginia, 538 U.S. 929 (2003). After unsuccessfully challenging his conviction and sentence in state habeas proceedings, Emmett filed a petition for writ of habeas corpus in federal district court. See 28 U.S.C.A. 2254 (West 1994 & Supp. 2006). The district court denied his application for relief, and declined to issue a certificate of appealability. We granted a certificate of appealability to review two claims. See 28 U.S.C.A. 2253(c)(1) (West Supp. 2006). For the reasons set forth below, we affirm. I. In the early morning hours of April 27, 2001, Emmett beat his sleeping coworker John Langley to death with the base of a brass motel room lamp in order to rob Langley and use his cash to buy crack cocaine. The circumstances of the murder were described by the Virginia Supreme Court as follows: Weldon Roofing Company employed Emmett and Langley as laborers for its roofing crews. During late April 2001, both men were assigned to a project in the City of Danville and shared a room at a local motel where the roofing crew was staying. On the evening of April 26, 2001, Emmett, Langley, Michael Darryl Pittman, and other members of the roofing crew cooked dinner on a grill at the motel, played cards, and drank beer. During the course of the evening, EMMETT v. KELLY 3 Langley loaned money to Emmett and Pittman, who used the money to buy crack cocaine. At approximately 11:00 p.m. that evening, Rainey Bell, another member of the roofing crew, heard a noise he described as "bang, bang" coming from the room Emmett and Langley shared. Shortly after midnight, Emmett went to the motel office and asked the clerk to call the police, saying that he had returned to his room, "seen blood and stuff . . . and didn't know what had took place." The police arrived at the motel at 12:46 a.m. on April 27, 2001 and accompanied Emmett back to his room. There they discovered Langley's dead body lying face down on Langley's bed beneath a comforter. Blood spatters were found on the sheets and headboard of Langley's bed, on the wall behind it, and on the wall between the bathroom and Emmett's bed. A damaged brass lamp stained with Langley's blood was discovered beneath Langley's bed. In his initial statement to police, Emmett denied killing Langley. He stated that he had returned to the room and gone to bed. Emmett claimed to have discovered the blood and Langley's body later that night when he got up to use the bathroom. Observing what appeared to be bloodstains on Emmett's personal effects, the police took possession of Emmett's boots and clothing with his permission. Emmett suggested that the blood might be his own because he had injured himself earlier in the week. Subsequent testing, however, revealed that Emmett's boots and clothing were stained with Langley's blood. Later in the morning of April 27, Emmett voluntarily accompanied the police to the Danville police station. There he agreed to be fingerprinted and gave a sample of his blood. Emmett admitted to the police that he had been drinking and using cocaine on the previous evening. Over the course of the next several hours, Emmett related different versions of the events of the previous evening to the police. He first implicated Pittman as Langley's murderer, 4 EMMETT v. KELLY but ultimately Emmett told the police that he alone had beaten Langley to death with the brass lamp. Emmett was given Miranda warnings and he gave a full, taped confession. Emmett stated that he and Pittman decided to rob Langley after Langley refused to loan them more money to buy additional cocaine. Emmett stated that he struck Langley five or six times with the brass lamp, took Langley's wallet, and left the motel to buy cocaine. Emmett, 569 S.E.2d at 42-43. "[B]ased upon the amount of blood and bruising of [Langley's] brain tissue at the point of impact," the medical examiner opined that "Langley was not killed immediately by the first blow from the lamp[, but] might have been unconscious after the first blow was struck and may have suffered `brain death' prior to actual death." Id. at 43. At the conclusion of the guilt phase of Emmett's bifurcated trial, Emmett was convicted by a jury of the capital murder and robbery of Langley. At the separate sentencing hearing, the Commonwealth sought the death penalty based upon Virginia's statutory aggravating factors of future dangerousness and of vileness based upon aggravated battery and depravity of mind. See Va. Code Ann. 19.2-264.2 (2004) ("In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of death be imposed."). In support of the future dangerousness factor, the prosecutor presented Emmett's prior criminal history, to the extent it could be determined. The history presented consisted of juvenile convictions for felonious larceny and for assault and battery arising from an incident in which Emmett, while incarcerated in a maximum-security juvenile EMMETT v. KELLY 5 detention facility, rushed a guard and locked him in a closet in order to escape.1 In addition, the prosecutor presented evidence of an adult conviction for involuntary manslaughter arising from an incident in which Emmett, while driving a van in the wrong direction and under the influence of alcohol, struck and killed a motorcyclist. Testimony was presented that the drunken Emmett was smiling after the driver was killed and told an officer "`that there was no need to worry about the man on the motorcycle. He was already dead, and that [Emmett] could do nothing to help him.'" Id. at 43 (alteration in original). As noted by the state court, [t]he evidence . . . showed that Emmett lacked remorse for this earlier violent crime and for the instant killing of a coworker. Indeed, Emmett himself confessed that he killed Langley simply because it "just seemed right at the time." Such lack of regard for a human life speaks volumes on the issue of future dangerousness and leaves little doubt of its probability. Id. at 45. In support of the vileness factor, the prosecutor highlighted to the jury the aggravated nature of the beating that Emmett inflicted upon his victim. As noted by the state court, Emmett's actions demonstrated both aggravated battery and depravity of mind. Specifically, "[t]he use of a blunt object to batter the skull of the victim repeatedly and with such force that blood spatters several feet from the victim is clearly both qualitatively and quantitatively more force than the minimum necessary to kill the victim." Id.; see also Smith v. Commonwealth, 248 S.E.2d 135, 149 (Va. 1978) (defining an "aggravated battery" as "a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder"). Additionally, "[t]he evidence established that Emmett violently As related in the prosecutor's affidavit filed in the habeas proceedings, the prosecutor was unable to establish why Emmett was incarcerated as a juvenile. Emmett's juvenile criminal record had been destroyed pursuant to North Carolina procedure, and, as set forth infra, defense counsel intentionally avoided opening the door to Emmett's extensive juvenile criminal history. 1 6 EMMETT v. KELLY attacked a co-worker with whom he had apparently enjoyed an amicable relationship. The brutality of the crime amply demonstrates the depravity of mind involved in the murder of Langley." Id. at 45-46; see also Smith, 248 S.E.2d at 149 (defining "depravity of mind" as a "degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation"). In mitigation, Emmett presented testimony from his mother, Barbara McAdams, and a half-sister with whom he was raised, Lauri McAdams. Mrs. McAdams testified that Emmett's natural father was an abusive alcoholic who failed to take care of his family. She testified that she ultimately left her husband and remarried the man who raised Emmett. Mrs. McAdams testified that in the months leading up to Langley's murder, she began to notice troubling changes in Emmett's behavior. Although Emmett had been a good parent to his young daughter, he stopped spending time with her, buying her the things that she needed, and paying his child support as he had always done in the past. Similarly, Mrs. McAdams testified that Emmett regularly visited her and her husband, spending time fishing with his stepfather and helping with various house and yard chores, but had stopped visiting them during these months as well. Emmett's half-sister, Lauri McAdams, testified that she was living with her mother and father in the months leading up to the murder and also noticed these changes in Emmett's behavior. Lauri confirmed that Emmett "used to come to my parents' house just about every weekend, and he would help my Dad whenever my Dad needed help," but that in the six months before the murder he became "real distant" and "stopped coming over." J.A. 168. She also testified that Emmett had disappeared for a weekend after receiving his tax refund, then returned to her parents' home claiming that he never received it. A family friend, Linda Butler, was the owner of the van Emmett was driving when he struck and killed the motorcyclist, and she also testified on Emmett's behalf. Mrs. Butler described Emmett as a caring and respectful person who often helped her, her disabled husband, and her son with home repairs and yard work. She testified that Emmett also helped care for her son in 1995 after he was injured and unable to walk. Emmett would often stop by their home when he fin- EMMETT v. KELLY 7 ished his work to help them with whatever they needed, including carrying her son to and from the bathtub and taking turns sleeping beside her son's bed to give the parents a break from their caregiving functions. In addition to these family members and friends, Emmett called three witnesses to support a claim that he would not pose a future danger if given a life sentence. Gary Bass, Chief of Operations for the Virginia Department of Corrections, testified that any person convicted of murder and given a life sentence would be classified as a level six inmate, the highest security level classification, and that while he could work his way down to level two at best, he would not be allowed outside the prison at any level. Michael Ellis with Green Correctional Institution testified that from October 1998 to January 1999, while Emmett was serving his sentence for vehicular manslaughter, Emmett was a member of Ellis's inmate crew working in the community. Ellis did not recall having any problems with Emmett. And, Captain Horne, Jail Administrator for the City Jail, testified that with the exception of one incident in which Emmett was talking loudly in his cell block, Emmett had committed no disciplinary infractions while awaiting trial at the jail on his murder charge. Through this testimony, counsel was able to argue to the jury in mitigation that Emmett was not a monster or career criminal, but a good and decent person whose addictions to alcohol and cocaine overwhelmed his judgment and ultimately resulted in his undoing. In prison for life, counsel pointed out, Emmett would be removed from his temptations and would pose no future danger to others there. At the conclusion of the sentencing hearing, the jury returned a verdict finding both statutory aggravating factors, weighed the aggravating and mitigating evidence, and recommended a sentence of death, which was subsequently imposed by the trial court. On mandatory post-conviction review, the Virginia Supreme Court affirmed the conviction and sentence, and the United States Supreme Court denied certiorari. In state post-conviction proceedings, Emmett alleged, inter alia, that his counsel was constitutionally ineffective during the sentencing phase of his trial because he (1) failed to perform an adequate investi- 8 EMMETT v. KELLY gation into Emmett's family and social background, and (2) failed to request the assistance of a toxicologist or substance abuse expert to present evidence of Emmett's level of intoxication at the time of the murder. The state habeas court denied Emmett's petition and denied Emmett's petition for rehearing. Pursuant to 28 U.S.C.A. 2254, Emmett then filed this petition for a writ of habeas corpus in the district court. The district court denied the petition, and declined to issue a certificate of appealability under 28 U.S.C.A. 2253. We issued a certificate of appealability to review the two claims set forth above. II. The Sixth Amendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence," U.S. Const. amend. VI, and that such assistance be effective, see Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to establish a claim for ineffective assistance of counsel, Emmett must demonstrate "that counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Id. at 687. To demonstrate inadequate performance, Emmett "must show that counsel's representation fell below an objective standard of reasonableness" measured by "prevailing professional norms." Id. at 688. To demonstrate prejudice, Emmett "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In death sentence challenges such as this, "the question is whether there is a reasonable probability that, absent the errors, the sentencer -- including an appellate court, to the extent it independently reweighs the evidence -- would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695. Pursuant to the limits on federal habeas review of a state conviction, when a habeas petitioner's constitutional claim has been "adjudicated on the merits in State court proceedings," we may not grant relief unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. 2254(d) (Supp. 2006). EMMETT v. KELLY 9 A state court's decision is contrary to clearly established federal law under 2254(d) where it "applies a rule that contradicts the governing law set forth" by the United States Supreme Court or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court's decision involves an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. Factual determinations made by the state court "shall be presumed to be correct," and "[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. 2254(e)(1) (Supp. 2006). III. We begin with Emmett's claim that counsel's investigation into his childhood was constitutionally deficient because he failed to interview each of Emmett's siblings and half-siblings and failed to request records from Emmett's court-ordered mental health counseling as a juvenile. Emmett argues that these sources of information would have alerted counsel that Emmett was raised in an environment of poverty, poor housing, hunger, neglect, and physical abuse, which led him to an early, persistent, and lifelong criminal path. Emmett further contends that had his jury been presented with such additional evidence, "there is a reasonable probability that at least one juror would have struck a different balance." Wiggins v. Smith, 539 U.S. 510, 537 (2003). A. It is well established under Strickland and its progeny that trial counsel's failure to conduct an "adequate investigation in preparing for the sentencing phase of a capital trial" may amount to ineffective assistance. Rompilla v. Beard, 545 U.S. 374, 380 (2005); see Wiggins, 539 U.S. at 521-22. In the course of representation, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. 10 EMMETT v. KELLY It is also well established, however, "that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing," Wiggins, 539 U.S. at 533, or "impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client," Tucker v. Ozmint, 350 F.3d 433, 442 (4th Cir. 2003) (internal quotation marks omitted). "[T]he Strickland test of necessity requires a case-by-case examination of the evidence," Williams, 529 U.S. at 391 (internal quotation marks omitted), and counsel's decision not to investigate or to cease investigation in a particular area "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments," Strickland, 466 U.S. at 691. In all such cases, Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689 (internal citations omitted); see also Rompilla, 545 U.S. at 381 ("In judging the defense's investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to `counsel's perspective at the time' investigative decisions are made, and by giving a `heavy measure of deference to counsel's judgments.'" (quoting Strickland, 466 U.S. at 689, 691) (internal citations omitted)). B. With these principles in mind, we now "reconstruct the circumstances of counsel's challenged conduct," and consider the timeliness and scope of the investigation performed by counsel, the fruits of that EMMETT v. KELLY 11 effort, and the decisions counsel made as a result of it. Strickland, 466 U.S. at 689. Emmett's counsel was an experienced public defender in Danville, Virginia, who had tried at least 15 murder cases, including two capital cases. He was assisted in his representation by an investigator employed by the public defender's office as well as a forensic psychologist appointed by the trial court to assist with the preparation and presentation of mitigation evidence. At the outset of the representation, counsel interviewed Emmett with the aid of a twenty-three page, comprehensive questionnaire specifically designed to obtain biographical information and explore all possible areas of mitigation evidence. The questionnaire was divided into separate sections covering nine categories of potentially mitigating evidence: family history, criminal history, employment history, environmental history, hobbies, medical history, mental health history, school history, and substance abuse history. Each section, in turn, contained specific and detailed questions to be covered with the defendant. During counsel's interview, Emmett was cooperative and forthcoming about his background, family and upbringing. Emmett told counsel that he was unmarried and had a five-year-old daughter. He told counsel that his now-deceased biological father was an abusive alcoholic, that his mother and father separated and divorced when Emmett was an infant, that his mother remarried his current stepfather shortly thereafter, and that his biological father had no role in Emmett's upbringing. Emmett was the youngest of five siblings from the marriage of his mother and father, but only he, his next oldest sister, and three half-siblings were raised together by his mother and stepfather. Emmett told counsel that he had a good relationship with his mother, stepfather, and the siblings that were raised in the home with him. He specifically denied any abuse, physical or emotional, and any major childhood difficulties with his mother and stepfather, told counsel that there "had never been any abuse to him or anyone else in the home," and told counsel that "there had not been any social service interventions involving anyone in his family." J.A. 431. Emmett denied having received any mental health or substance abuse treatment, and stated that no one in his immediate family had a history of medical, mental, legal, or (outside of his biological father) 12 EMMETT v. KELLY chemical dependency problems. Although Emmett told counsel that he had received some court-ordered mental health counseling as a child, he explained that this was imposed as a result of a juvenile criminal incident committed when Emmett was seven or eight years old and that the counseling was discontinued by his mother because she thought it was making him worse. Emmett denied having been diagnosed or medicated for any mental health condition at that time or thereafter. In the course of counsel's interview, Emmett provided names of several family members and friends who could be contacted for information or as possible witnesses. Counsel interviewed Emmett's mother and step-father, his half-sister Lauri, and several friends. At no time did these witnesses alert counsel to the possibility that Emmett, contrary to his assertions, was abused or neglected as a child or otherwise contradict or call into question the information provided by Emmett. Dr. Evan S. Nelson, the forensic psychologist appointed to assist defense counsel in the preparation and presentation of mitigation evidence, evaluated Emmett and prepared a written report. In the course of this evaluation, Emmett provided a family and social background fully consistent with that provided to counsel and was otherwise cooperative. Emmett told Dr. Nelson that he "got along well with his stepfather," described his mother as a "`loving mother' who rearranged her schedule to be there to take care of him when he was growing up," and "denied having been physically or emotionally abused." J.A. 462. He also denied being raised by his older siblings and claimed "there was adequate money to meet his basic needs." Id. Emmett also reported to Dr. Nelson an extensive and troubling juvenile and adult criminal history. Emmett confessed to being chronically truant beginning in elementary school and told Dr. Nelson that he was twice arrested during his elementary school years for breaking and entering a neighbor's home and a business, both of which he committed alone. Emmett also told Dr. Nelson that he was suspended multiple times in middle and high school for various infractions. As noted by Dr. Nelson, Emmett's "account of his own criminal history [was] more damning than the actual records." J.A. 463. In addition to EMMETT v. KELLY 13 the two breaking and enterings committed during elementary school, Nelson's report outlined Emmett's other criminal activities: At age 10, he had another breaking and entering and was sent to a training school. At age 11, he burned a trailer down "by accident." He explained that he was playing with matches, by himself, when he accidentally set the trailer on fire. This may have been a violation of probation for the B&E and he was sent back to yet another training school. At 14, he committed another B&E. He said that he was not guilty of this charge but did know who had done it, but the court convicted him. Then he added that he should have been found guilty of receiving stolen goods but he did not want to rat out his friend who had actually committed the B&E, showing strong criminal social values as early as age 14. He was placed in a non-secure juvenile facility and ran away four times. At that point he had never been gone for more than just a day. They then sent him to a more secure facility called the Dylan Detention Center. He said he escaped from there three times. (Seven escapes even from non-secure facilities is evidence of planning and a persistent disregard for the rules of authority figures; it also showed short-term planning, given that each brief episode of freedom was followed by increased incarceration.) The last time he ran with two boys and he stayed in Tennessee at one of the boy's aunt's house for almost two weeks. He was charged with kidnaping, assault, and common law robbery as part of that escape. The kidnaping occurred when he stuffed a guard in the closet. The assault occurred because he touched the guard to put him in the closet. The common law robbery occurred because he took the keys away from the guard, or so this is how he reported it. While on the lam, he stole some clothes off of a clothesline and incurred yet another B&E charge. He was in detention until his 18th birthday. J.A. 463-64. After his juvenile years, Emmett related having convictions or charges for several DUI's, driving without a license, assaulting his girlfriend, second degree trespassing, possessing stolen goods, 14 EMMETT v. KELLY and vehicular manslaughter. Contrary to the evidence presented at his trial, Emmett denied that he was on the wrong side of the road when he struck the motorcyclist and told Dr. Nelson that the police placed the victim on the wrong side to fabricate evidence against him. Emmett also told Dr. Nelson that within a month after his release from prison for the vehicular manslaughter, he was arrested for having an open container of alcohol, charged with possession of drug paraphernalia, and charged with a fishing violation. With the exception of the court-ordered counseling when he was in elementary school, Emmett advised Dr. Nelson that he had undergone no mental health counseling or treatment. Dr. Nelson also reported to counsel that Emmett was of average intelligence for the general population, above-average intelligence for an incarcerated male felon, and that his personality test revealed an antisocial personality trait, i.e., "an attitude that the world is a place of competition and one must take what you can get, and feel that you deserve it." J.A. 466. Dr. Nelson concluded that, although Emmett did not currently meet the criteria for "psychopath," he had traits of that classification and amply met the criteria for "Antisocial Personality Disorder," which "describes a pattern of criminal conduct." J.A. 467. In short, Emmett exhibited "the chronically unstable, impulsive, and opportunistic lifestyle of a career criminal." Id. Moreover, Dr. Nelson viewed Emmett as a career criminal with a pattern, "beg[inning] in childhood and continu[ing] into adulthood," of "commit[ting] property offenses for his own personal gain" -- the same thing that motivated the capital murder offense. J.A. 468. Ultimately, Dr. Nelson concluded, and advised counsel, that: Except for Mr. Emmett's addictions to alcohol and cocaine and the role they may have played in his urgent desire for money that night, there is little from this defendant's background that can mitigate the offense, in this expert's opinion. Mr. Emmett had done little with his life except live hand-to-mouth. There was no evidence whatsoever of an acute mental illness explaining the instant offense or Mr. Emmett's background, just a personality disorder. There were no credible reports of neuropsychological damage that would explain his pattern of conduct, either. His social his- EMMETT v. KELLY 15 tory did not reveal mental retardation, severe abuse or depravity. There may be mitigation in the fact that Mr. Emmett had behaved while in adult jails and prisons, suggesting that he could be a good citizen within a highly structured and controlled environment such as the one he would experience if given life without parole. Id. In view of his evaluation, Dr. Nelson recommended that counsel not call him as a witness because of the high risk of the prosecution using the lack of mitigation as aggravating evidence and advised that Emmett would be better served by lay witnesses, rather than an expert "who could be cross examined about Antisocial Personality Disorder, psychopathy, and hypotheticals about future bad conduct Mr. Emmett might commit." J.A, 469. In addition to the interviews conducted of Emmett's family members and friends and his review of the evaluation by Dr. Nelson, counsel obtained Emmett's available school records and the records of his prior incarceration as an adult. Counsel also attempted to obtain Emmett's juvenile commitment record, but was advised that those records had been destroyed. Counsel did not pursue obtaining a copy of the records from Emmett's juvenile court-ordered counseling. Neither Emmett nor the family members indicated that there was anything significant to find, testimony by people involved in his juvenile criminal history would have risked opening the door to Emmett's early and continuous criminal behavior, and Dr. Nelson reported no evidence of mental illness in his evaluation of Emmett. From the interview with Emmett's mother, counsel also located and personally interviewed one of Emmett's juvenile probation officers, Molly Bergwyn. Ms. Bergwyn advised counsel that she became Emmett's probation officer when Emmett was approximately 8 years old. She "remembered Emmett as a sad little kid who ran away a lot," but told counsel that "she never noticed any violent behavior or reports of abuse." J.A. 431. Although she did recall Emmett's "living conditions as nasty -- dirty trailers, lots of kids and not much attention," she was not overly critical of Emmett's mother. Id. Ms. Bergwyn told counsel that she believed that Emmett's mother loved him, 16 EMMETT v. KELLY but that she possibly lacked parental skills, and advised counsel that, in her opinion, there was "no abuse[,] just not a lot of attention." Id. In statements consistent with those of Emmett and his family members, Ms. Bergwyn also advised counsel that she remembered Emmett's stepfather taking Emmett hunting, trapping, and fishing, which Emmett loved, so there was "obviously parental involvement." Id. Based upon Emmett's statements, the follow-up investigation, and Dr. Nelson's evaluation and recommendations, counsel made a strategic decision not to call Ms. Bergwyn or Dr. Nelson as witnesses. With respect to Ms. Bergwyn, counsel felt that she "could damage more than help" because her description of Emmett's home life, while not ideal, was at worse one of some neglect, but not of abuse or other atrocities. Id. On the downside, counsel feared that her testimony would serve to remind the jury that Emmett had been a "lawbreaker" since the age of eight, "over 20 years [and] 2/3 of his life." Id. Counsel likewise heeded Dr. Nelson's advice not to call him as a witness, as doing so would also have opened the door to Emmett's extensive criminal history beginning at age seven and his antisocial traits and career criminal personality -- a history which the prosecutors were not privy to and which was unavailable to them via juvenile records. Without this support, counsel knew, the prosecutor's future dangerousness case was supported only by the single juvenile conviction, the attempted escape from the juvenile facility and related offenses, and the single adult conviction for vehicular homicide.2 Counsel was aware, through the Commonwealth's notice of prior convictions, that the Commonwealth either was not aware of or chose not to detail Emmett's extensive criminal behavior as a child. In state habeas proceedings, the prosecutor confirmed that he "attempted to investigate and discover the extent of Emmett's juvenile criminal history for use in evidence at sentencing," and that he "wanted information about [Emmett's] criminal history as a juvenile to stress to the jury that he had a long history of criminal conduct and provide additional support for a finding of future dangerousness." J.A. 477. However, he too "learned that North Carolina law provides that juvenile records are destroyed 10 years after the juvenile reaches age 18" and "that any juvenile records concerning Emmett had been destroyed approximately a year earlier." Id. The prosecutor's attempts to locate witnesses who could testify about his 2 EMMETT v. KELLY 17 Instead, counsel pursued a strategy to "humanize" Emmett and "persuade the sentencer that he . . . is not a monster, but a person with some worthwhile qualities," through testimony from Emmett's family members and a close friend to demonstrate that he was "a helpful and responsible son, parent and friend until approximately 12 months" before the murder when he became involved in cocaine and underwent a noticeable change in behavior -- a strategy that would have been directly undermined by evidence of an extensive juvenile and adult criminal history. J.A. 433. Building upon this testimony, counsel also developed and presented positive testimony of Emmett's good behavior while serving his North Carolina sentence and while awaiting trial in the Danville City jail, to stress Emmett's demonstrated lack of dangerousness in the prison setting, as well as the security and structure of the prison environment he would be placed in if given a life sentence. C. Counsel's mitigation strategy, however reasonable and wellconceived at the time, was ultimately unsuccessful; the jury was not convinced that the mitigating circumstances of Emmett's character or his inability to control his weakness for intoxicating substances outweighed the aggravating circumstances of the brutal killing of his coworker. Only now, in the wake of Emmett's conviction and death sentence, habeas counsel has successfully gathered a number of affidavits from Emmett's siblings, half-siblings, and extended family members, as well as information gleaned from the childhood counseling ordered by the juvenile court, which paint quite a different picture of his childhood. According to these affidavits, Emmett's family was very poor, his living conditions were dirty and unsafe, there was not always enough food, his mother and stepfather often fought, and the children were juvenile record were also unsuccessful, leaving him with the evidence from the juvenile facility escape only. The prosecutor also confirmed that "[i]f [Emmett] had presented evidence that suggested additional criminal activities as a juvenile, [he] certainly would have made use of that evidence." Id. 18 EMMETT v. KELLY neglected and, at times, slapped, spanked, or otherwise physically abused. Records from the court-ordered counseling confirm that Emmett was brought to therapy by his mother after Emmett was arrested on charges of larceny at the age of seven, while Emmett was in the second grade. The records further indicate, however, that Emmett's family and living conditions were poor, that his hygiene was very inappropriate, that he might not have been receiving adequate care in the home, and that the therapy was ultimately terminated as a result of his mother's non-compliance. Finally, the new records contain information that one of Emmett's juvenile probation officers filed a neglect charge which was investigated by social services, although it did not result in either Emmett or his younger brothers and sisters being removed from the home. In light of this new evidence, Emmett contends that his counsel's investigation was constitutionally deficient because, although counsel did interview Emmett's mother, step-father, and half-sister, he did not interview all of the siblings known to counsel and did not request the record from his court-ordered counseling. We disagree. As an initial matter, we point out the obvious fact that this new evidence in large part directly contradicts the information Emmett provided to his lawyer and the forensic psychologist appointed to work on his behalf to develop and present a mitigation case, as well as the corroborating information obtained during the investigation. As noted above, Emmett reported that he had a good relationship with his mother, his stepfather, and his siblings, and that he had maintained a good relationship with his parents into his adult years. He specifically denied any physical or emotional abuse to him or to his siblings, denied any DSS interventions into his home, and described his mother as a loving mother who rearranged her schedule to take care of him. He denied being raised by his older siblings and indicated that there was adequate money available to ensure that his basic needs were met. In habeas proceedings, Emmett has not factually disputed that he provided this history to counsel, nor otherwise sought to contradict his earlier statements to counsel. He has also made no effort to personally set forth an account of his family and social history which differs from that obtained by counsel during his representation. In short, EMMETT v. KELLY 19 Emmett has presented no testimony or affidavit on his own behalf in the habeas proceedings. Rather, Emmett argues, without evidentiary support, that he was "unable to recall and describe the tragic circumstances of his own upbringing," but that this inability did not "absolve[ ] trial counsel of his obligation to conduct an adequate investigation and follow viable leads regarding Emmett's mental health and troubled family background." Reply Brief at 3-4 (internal quotation marks omitted). Emmett asserts that counsel should have anticipated that Emmett's family would not have told him the truth about his counseling history or other negative conditions of his childhood. Having considered counsel's investigation along with the new evidence presented, the state habeas court ruled that "[c]ounsel was entitled to believe that the petitioner and his proffered witnesses, including friends and family, had informed counsel and petitioner's mental health expert of all relevant social history," J.A. 542, and made a reasonable decision to allocate their time and efforts towards the development of other types of mitigating evidence. On federal habeas, Emmett contends that the state court's determination was unreasonable, as it adopted what amounts to a per se rule that "[c]ounsel cannot be held ineffective for relying upon information supplied by his client." Id. We, however, do not read the state court's opinion so narrowly and, in any event, agree that counsel's investigation into Emmett's family background was not constitutionally deficient. As noted above, a determination of the reasonableness of counsel's actions must be determined on a "case-by-case" basis. Williams, 529 U.S. at 391. "A standard of reasonableness applied as if one stood in counsel's shoes spawns few hard-edged rules," and the merits of counsel's investigative choices may often be "subject to fair debate." Rompilla, 545 U.S. at 381. However, "capital sentencing proceedings do not set at naught the basic principle of attorney-client relations: namely that counsel, for all their learning and experience, remain in the end the agents of the one most intimately affected." Lovitt v. True, 403 F.3d 171, 179 (4th Cir. 2005). The importance of respecting the attorney-client relationship and the propriety of counsel relying upon the word of his client in the usual case were recognized by the Court in the Strickland opinion, which plainly states that "[t]he reasonable- 20 EMMETT v. KELLY ness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions," and advises that "[c]ounsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland, 466 U.S. at 691. This reliance, the Court further noted, particularly extends to the investigation phase of counsel's representation: In particular, what investigation decisions are reasonable depends critically on such information [supplied by the defendant]. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. Id.; see also Barnes v. Thompson, 58 F.3d 971, 979-980 (4th Cir. 1995) (holding that defense counsel "may rely on the truthfulness of his client and those whom he interviews in deciding how to pursue his investigation"). The constitutional argument that counsel should, instead, presume that his client, particularly one who is behaving in a cooperative and forthcoming manner, is being deliberately misleading, or that counsel should presume that the family members also possess a motivation to deceive, runs directly counter to this most basic premise. It would also place counsel in an impossible position -- unable to trust the word of the client and his family members and always subject to professional challenge for a failure to interview every person identified to him and every person known who might contradict those interviewed. Even if we could, under our limited federal review of the state court's adjudication, we would also not view this case as one that EMMETT v. KELLY 21 should be excepted from Strickland's recognition of the general propriety of counsel's reliance upon the word of his client. Emmett has provided no evidentiary support for the assertion that he was unable to recall his troubled background nor any evidentiary basis upon which to conclude that his counsel should have had reason to believe that Emmett was unable to do so. Indeed, given the specificity of the information he provided, it seems that Emmett was able to recall the details of his childhood. Nor does this case fit within the criticisms of the Supreme Court's in Williams, Wiggins, or Rompilla, or the bases upon which the Court determined that counsel's representation was deficient in those cases. This is not a case in which counsel ignored his duty to investigate background information, engaged in a belated investigation of mitigating evidence, or failed to commission a social history report by a psychologist. There is no assertion that Emmett was intellectually challenged or that he was not aware of or did not understand the capital process and the importance of presenting mitigation evidence in the penalty phase. There is no claim that Emmett at any time suggested that counsel should not pursue or offer mitigation evidence or that he behaved in an unhelpful, hopeless, defeated, or despondent manner during his encounters with counsel or Dr. Nelson. Nor is this a case in which counsel neglected to obtain and review his client's prior criminal record or prison records of his client's good behavior in a structured environment. On the contrary, counsel uncovered a wealth of information regarding his client's extensive criminal background, confirmed that the prosecution had not uncovered that same information and would be unable to rely upon it as aggravating evidence, and made strategic decisions to ensure that the door to that evidence remained closed. This is also not a case in which counsel did rely solely upon the word of his client in making investigative and mitigation decisions. Counsel interviewed Emmett's mother, the stepfather who raised him from an infant, as well as the half-sister who grew up with Emmett, still lived in the family home, and had frequent contact with Emmett in his adult years. And, no evidence is present or exists that counsel should have anticipated that Emmett's family also would lie or cover up the truth about his childhood, or otherwise hinder counsel's efforts to build the most effective mitigation case possible. 22 EMMETT v. KELLY Counsel also requested Emmett's school records and prison records and tracked down one of Emmett's earliest juvenile probation officers who, although indicating that his home was dirty and that his mother lacked parenting skills, confirmed Emmett's assertions that his mother loved him and that he had a good relationship with his step-father. Although counsel was made aware that Emmett received counseling at a young age as a juvenile offender, counsel was also told that the counseling was discontinued by the family because it was not helpful and advised by Emmett and his family that Emmett had never been diagnosed with or treated for a mental illness. The probation officer gave no indication that there was a childhood mental illness, and Dr. Nelson confirmed that Emmett displayed no signs of mental illness during his evaluation. In sum, we agree with the state court's determination that counsel, given the information obtained during his background investigation, could reasonably have determined that neither further interviews with family members nor the juvenile counseling records would be helpful to his defense and that counsel's time and efforts were best spent pursuing the mitigation strategy outlined above and presented at trial. Accordingly, Emmett is not entitled to federal habeas relief.3 In his affidavit presented in the state habeas proceeding, counsel indicated that "Emmett gave me the names of family and friends to contact for information or as possible witnesses" and that "[m]y investigator and/or I contacted and interviewed Emmett's mother, step-father and sister and other friends." J.A. 431. The state habeas court, in turn, stated in its decision that "[c]ounsel interviewed all the witnesses provided by petitioner and none of them reported the problems now claimed by petitioner." J.A. 542. Pointing to handwritten notes which indicate that Emmett gave counsel or Dr. Nelson the names of other siblings who were not contacted, Emmett contends that the state court's factual statement was unreasonable and, therefore, that we are compelled to review this case de novo. We disagree. Although it does appear that counsel did not interview every family member who was brought to their attention, we cannot say that the state court operated under the mistaken belief that counsel had done so. The state court was not presented with a factual dispute on this issue as counsel's affidavit plainly stated that he interviewed the "mother, step-father and sister". J.A. 431. Consequently, Emmett has not demonstrated, by clear and convincing evidence, that the factual basis for the state court's reasonableness determination was incorrect. 3 EMMETT v. KELLY 23 D. Even if Emmett had established that his counsel's performance was unreasonable, Emmett would still not be entitled to relief because he also failed to demonstrate "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 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The state habeas court found no reasonable probability that, had the additional evidence of Emmett's childhood been presented, the jury's verdict would have been different. We cannot say that this determination was contrary to or an unreasonable application of Strickland and its progeny. In death penalty cases, to assess prejudice, the court "reweigh[s] the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 539 U.S. at 534. Here, the aggravating evidence surrounding the murder was compelling. Emmett and Langley were coworkers and roommates at the motel. Emmett knew Langley's family and had been the recipient of Langley's generosity, both monetarily and in favors, in the past and on the night of the murder. Despite this personal relationship and Langley's generosity, Emmett walked calmly into their motel room, sat on his bed contemplating the murder, took the lamp from the table, quietly removed its lampshade and light bulb (presumably so he would not cut himself), and beat the sleeping, helpless victim to death for the sole purpose of robbing him because Langley had denied his request for another loan. In doing so, Emmett struck Langley in the skull at least five times and with such ferocity that blood flew onto the walls, the foot of the bed and headboard, and to the opposite side of the room. He then removed Langley's wallet from his pocket and used the money to buy crack cocaine. Even if we believed otherwise, however, we would not grant habeas relief de novo as we agree with the state court's determination. Counsel's decision not to proceed beyond the interviews of the three family members did not render his investigation constitutionally deficient and we find the investigation to have been reasonable under all the circumstances. 24 EMMETT v. KELLY After killing Langley, Emmett concocted his lie for the police, calmly reported the murder to the motel desk attendant, and, when the police arrived and the situation became tense, tried to pin the crime on another coworker and supposed friend. Finally, when there was no more lie to spin, Emmett confessed to having acted alone. When questioned about the circumstances leading up to the murder, Emmett told the police that Langley was "an asshole" who "wouldn't loan me no money," J.A. 81, and that it "just seemed right at the time," J.A. 80, demonstrating a lack of remorse and callous disregard for human life similar to that demonstrated in the wake of his killing of the motorcyclist a few years prior. In contrast to this devastating evidence, the evidence that Emmett has produced in habeas proceedings, and which he now contends should have been unearthed and presented during the sentencing phase, would have presented to the jury a picture of a difficult childhood environment. It was, however, comprised of at least as much bad evidence in aggravation as good evidence in mitigation, and the additional evidence in aggravation would have served to eliminate or at least substantially undercut the evidence in mitigation that was presented. According to the newly submitted evidence, Emmett had a difficult and neglectful childhood environment, with at least some physical abuse, but not one deemed severe enough for social services to remove from the home either Emmett or his siblings when called to investigate. On the other hand, the additional evidence contained an extensive and extremely damaging juvenile criminal history which supported the prosecutor's future dangerousness and depravity arguments. As noted by the prosecutor, he "attempted to investigate and discover the extent of Emmett's juvenile criminal history for use in evidence at sentencing," and "wanted information about [Emmett's] criminal history as a juvenile to stress to the jury that he had a long history of criminal conduct and provide additional support for a finding of future dangerousness." J.A. 477. Thus, "[i]f [Emmett] had presented evidence that suggested additional criminal activities as a juvenile, [he] certainly would have made use of that evidence." Id. Emmett acknowledges the aggravating nature of the additional evidence, but asserts that, had counsel presented the evidence along with the argument that it was because of these hardships that Emmett finally resorted to the extensive illegal behavior as a means of getting EMMETT v. KELLY 25 the attention of his parents, the balance would have been struck differently. We are unpersuaded. In addition to opening the door to Emmett's extensive juvenile record, the evidence would have stripped Emmett of the mitigation strategy that was presented and invited the prosecution to argue the very point the defense hoped to avoid -- that, instead of the relatively minor juvenile history known to the prosecutor and the single adult conviction for vehicular homicide, Emmett had a criminal history prior to this murder that spanned from the age of seven to the present, including damaging evidence that Emmett, even as a child, targeted friends, neighbors, counselors, and others with whom he had personal relationships as his victims. In sum, such an extensive history of criminal conduct from the age of seven would have substantially bolstered the prosecutor's argument that Emmett was a calculating, ruthless, life-long criminal who stopped not even to spare those close to him from his crimes and who would pose a danger to anyone who stood between him and what he wanted. Accordingly, whatever weight the additional social history might have added to Emmett's mitigating side of the scale, we agree with the state court's determination that it was more than offset by the aggravating nature of the evidence. To conclude, Emmett's arguments suffer from the classic hindsight that we are cautioned not to apply to upset state court judgments. Had Emmett's counsel presented the evidence brought forth in state habeas proceedings and opened that door, he would be as likely to have encountered an ineffectiveness argument based on that decision as the one we face today. We refuse to place defense lawyers in this position. 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. Therefore, the best course for a federal habeas court is to credit plausible strategic judgments. To do otherwise would be a transparent misuse of the habeas court's power of hindsight. Lovitt, 403 F.3d at 181 (internal quotation marks, alterations, and citations omitted). In light of the totality of the evidence presented at trial and in the state habeas proceeding, we conclude that Emmett has 26 EMMETT v. KELLY failed to demonstrate a reasonable probability that, but for counsel's failure to present the additional evidence of Emmett's background, the sentence would have been different. Accordingly, we cannot say that the state court's determination was contrary to or an unreasonable application of Strickland and, therefore, Emmett is not entitled to relief. IV. We next turn to Emmett's claim that his counsel unreasonably failed to request the assistance of a toxicologist or other substance abuse expert and to present expert testimony concerning Emmett's intoxication at the time of the offense as mitigating evidence during the penalty phase. According to Emmett, such an expert might have testified that the effects of cocaine and alcohol can cause impaired coordination and balance, an impaired ability to react to events, disturbed vision, euphoria, an increased sense of well-being, an increased sense of power, a loss of insight into events, impaired judgment, impaired or disturbed perceptions, difficulty concentrating, confusion, paranoia, visual disturbances, or hallucinations.4 The state habeas court rejected Emmett's intoxication claim, concluding that it met neither the "performance" nor "prejudice" prong of Strickland's two-part test. Specifically, the court noted that: While petitioner's court-appointed mental health expert informed counsel that he believed petitioner was intoxicated at the time of the offense, the expert also cautioned that petitioner made a choice to attack the victim and he "clearly knew what he was doing." Additionally, petitioner's own statement to the police indicated that he thought about robbing and hitting the victim in the head before actually committing the acts. Furthermore, because there was no In his state habeas proceedings, Emmett argued that counsel was constitutionally ineffective for failing to present intoxication as a defense to capital murder in the guilt phase, as well as to the imposition of the death penalty in the sentencing phase. In this appeal, however, Emmett has limited his challenge to counsel's performance as it relates to the sentencing phase. 4 EMMETT v. KELLY 27 evidence as to the precise amount of alcohol and cocaine he consumed on the night in question, any expert testimony would have been based solely on speculation. Finally, counsel argued at the sentencing hearing that petitioner had addictions to both alcohol and cocaine and that these addictions "overwhelm[ed] his judgment" at the time of the murder. J.A. 535-36. Having reviewed the record, we cannot say that the state court's rejection of Emmett's intoxication claim was contrary to or an unreasonable application of Supreme Court precedent. Although evidence of intoxication can be mitigating in certain circumstances, see Va. Code Ann. 19.2-264.4(B)(iv) (2004) (setting forth, as mitigating, evidence that "at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired"), we agree that counsel's determination that the evidence in this case could not support such a claim was a reasonable one. According to his confession, Emmett began drinking beer at approximately 6:00 p.m. and, over the course of the next five or six hours, consumed as much as a 12-pack of beer and smoked a sixteenth of crack with several of the other roofers. However, the evidence available to counsel indicated that Emmett was nonetheless calm and in control of his actions at the time of the murder. Emmett's coworker Michael Pittman confirmed that the men were drinking and that they smoked crack together on a couple of occasions, but he testified that the crack did not affect him very much because the quantity was small and each man only got two or three drags. The hotel desk clerk, whom Emmett approached within a hour of killing Langley, stated that Emmett appeared normal and not nervous. He was "standin[g] straight, and he walked straight," and "nothing [was] wrong with his speech." J.A. 55. The police officers who responded to the scene and dealt with Emmett immediately thereafter also uniformly testified that Emmett was very calm and had no difficulty walking or talking to them. Emmett's own confession also indicates that he was calm and in control of his actions at the time of the murder; he told the officers that he "went in [the motel room], sat on the 28 EMMETT v. KELLY bed for a few minutes, . . . thought about it, . . . took the shade off the lamp and took the bulb out, . . . unplugged it and . . . hit John in the head with it." J.A. 75-76. Dr. Nelson also interviewed Emmett about the circumstances of the evening, was aware of the substance use, and specifically addressed the question of "[w]hether the capacity of [Emmett] to appreciate the criminality of his conduct or conform his conduct for the requirement of the law was significantly impaired" in his report to counsel. J.A. 467. Dr. Nelson opined that Emmett "was intoxicated on the synergistic combination of cocaine and alcohol at the time of the alleged offense," and that such intoxication can "reduce[ ] anxieties that normally inhibit one from acting on impulses to do illegal acts" and agitate the perpetrator. J.A. 467-68. However, Dr. Nelson cautioned that, in this case, "Mr. Emmett voluntarily consumed these substances," "was experienced with the effects of alcohol and cocaine," "made a choice to attack his sleeping roommate and clearly knew what he was doing." J.A. 468. In light of this evidence, we cannot say that counsel's representation was deficient because he did not seek out the assistance of another substance abuse expert or a toxicologist or that, had he done so, the result of the proceeding would have been different. Counsel and Dr. Nelson investigated a possible mitigation strategy based upon Emmett's substance use that evening, and counsel did argue in mitigation to the jury, based on the evidence presented and the mitigation witnesses, that Emmett had addictions to both alcohol and cocaine which had changed his personality in the months prior to the murder and overwhelmed his judgment at the time of the murder. Counsel, however, uncovered no basis upon which to believe that Emmett suffered from severe ill-effects of alcohol and cocaine and, on the contrary, Emmett's counsel was presented with uniformly consistent information that Emmett's behavior and speech throughout the evening and immediately after the murder were unimpaired and that he was in control of his actions at the time. Given this information, we cannot say that the Virginia Supreme Court's determination -- that Emmett failed to demonstrate that his counsel's performance was deficient because he failed to hire and present a separate toxicologist substance abuse expert or that, had he done so, that the result of the proceeding would have been different -- was unreasonable. For the EMMETT v. KELLY 29 same reason, we reject Emmett's challenge to the district court's denial of his motion to authorize funds for the appointment of a toxicologist or other substance abuse expert on federal habeas. V. For the foregoing reasons, we affirm the district court's denial of Emmett's petition for writ of habeas corpus. AFFIRMED GREGORY, Circuit Judge, concurring in part and dissenting in part: I concur in Part IV of the majority opinion, which concludes that Christopher Scott Emmett's ("Emmett's") counsel was not ineffective in failing to develop evidence of Emmett's intoxication for use during the penalty phase. I respectfully dissent from the majority's analysis and conclusion in Part III of the opinion. Counsel failed to investigate adequately Emmett's childhood, and counsel's inadequate investigation prejudiced the sentencing phase of Emmett's trial. The Supreme Court of Virginia unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in ruling otherwise. I. The majority opinion provides a lengthy description of the facts related to Emmett's crime and a thorough exposition of counsel's effort to investigate Emmett's background. The opinion does not detail at length the facts related to Emmett's childhood of abuse and neglect. Because these facts are essential to analyzing Emmett's claim, I fully recount them here. Emmett, born August 18, 1971, was the last of five children born to Barbara "Karen" McAdams ("Karen") and Bobby Emmett ("Bobby"). His birth home was unsanitary. Emmett's aunt, Joanne Bazemore ("Joanne"), remembered that the home was filthy and smelled of urine, a stench bad enough to make her eyes burn. She remembered dirty diapers that fell out of closet doors and urinesoaked mattresses that had to be taken outside for airing. In this home,

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