Ricky Gray v. Eddie Pearson

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00630-AJT-TCB. [999706808]. [12-5, 14-3]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5

RICKY JOVAN GRAY,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.

No. 14-3

RICKY JOVAN GRAY,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:11−cv−00630−AJT−TCB)
Argued:

September 15, 2015

Decided:

November 25, 2015

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

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Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined.
Senior Judge Davis wrote a separate
opinion concurring in part and dissenting in part.

ARGUED:
Elizabeth
Hambourger,
CENTER
FOR
DEATH
PENALTY
LITIGATION, Durham, North Carolina; Robert Edward Lee, Jr.,
VIRGINIA
CAPITAL
REPRESENTATION
RESOURCE
CENTER,
Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
ON BRIEF: Jonathan P. Sheldon, SHELDON & FLOOD,
PLC, Fairfax, Virginia; David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant.
Mark R.
Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

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DIAZ, Circuit Judge:
Ricky Jovan Gray appeals the district court’s denial of his
petition for a writ of habeas corpus.
questions.

His appeal presents two

First, whether the Supreme Court of Virginia, in

resolving factual disputes regarding an ineffective-assistanceof-counsel

claim

“unreasonable

without

an

determination

evidentiary
of

the

hearing,
facts”

made

under

an
the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254(d)(2).

Because we find that the state court

did not ignore Gray’s evidence or otherwise reversibly err in
resolving factual disputes on the record, we reject this first
challenge.

The second question is whether Gray may belatedly

raise in the district court a claim of ineffective assistance of
trial counsel under the Supreme Court’s decision in Martinez v.
Ryan, 132 S. Ct. 1309 (2012).

We find that the claim Gray seeks

to raise was presented to, and decided by, the state court.
Therefore, it is not subject to de novo review in the district
court under Martinez.
Accordingly, we affirm the judgment of the district court.

I.
A.
On the morning of January 1, 2006, in the course of a home
burglary, Gray murdered Bryan and Kathryn Harvey and their two
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young daughters, Ruby and Stella, by tying them up in their
basement and then cutting their throats, stabbing them, striking
them

with

a

claw

hammer,

and

setting

fire

to

their

home.

Although Gray was with two accomplices, Ray Dandridge and Ashley
Baskerville,

Gray

killings.

The

Detective

confessed

Howard

circumstances

in

police

to

officer

Peterman,
which

Gray

having
who

committed

took

testified

Gray’s
at

confessed.

all

of

the

confession,

trial

to

the

also

read

the

He

confession to the jury.
The trial was conducted in two phases.

In the guilt phase,

the jury convicted Gray of five counts of capital murder.

In

the

of

penalty

phase,

the

Commonwealth

introduced

evidence

several other killings Gray had committed near the time of the
Harvey murders, including bludgeoning his wife with a lead pipe
two months earlier and suffocating Baskerville and her mother
and stepfather a week after the Harvey murders.

Gray offered

evidence of his parents’ abuse and neglect during his childhood,
his repeated sexual abuse at the hands of his brother from a
very early age, and Gray’s consistent drug use, beginning when
he was young.

He also offered expert testimony to connect this

evidence to his later violent behavior.

Dr. David Lisak, a

psychologist who did not examine Gray, opined on the potential
connection
behavior

as

between
an

Gray’s

adult.

childhood

Dr.

Mark
4

abuse

and

Cunningham,

a

his

violent

clinical

and

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forensic psychologist who did examine Gray, testified that Gray
was unlikely to be seriously violent in prison.
The jury issued verdicts of life imprisonment on three of
the counts and verdicts of death for the murders of Ruby and
Stella, finding the aggravating factor of “vileness.”
appeal,

the

Supreme

Court

of

Virginia

On direct

affirmed

Gray’s

convictions and death sentences.
B.
Gray then sought state habeas relief in the Supreme Court
of Virginia. 1

Relevant here, Claim III of that petition alleges

that

trial

Gray’s

investigation

of

counsel

his

failed

confession.

to

make

According

a
to

reasonable
Gray,

he

repeatedly asked police officers for an attorney and a phone
call, but was denied both.

Gray also asserts that he told the

police that his drug use on the day of the crime, especially his
use of PCP, left him unable to remember the day’s events.

To

fill the gaps in his memory, Gray says, police officers showed
him statements made by his accomplice Dandridge, and he adopted
Dandridge’s

account

as

his

own.

Had

Gray’s

trial

attorneys

sufficiently investigated these allegations, Gray contends, they
could have had the confession suppressed or, at least, sowed
1

Virginia requires habeas petitioners subject to the death
penalty to apply directly to the state supreme court. Va. Code
Ann. § 8.01-654(C)(1).

5

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doubt

in

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the

participation

jury’s

in

the

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mind

as

murders.

to
The

the

extent

warden

moved

of
to

Gray’s
dismiss,

attaching a joint affidavit from Gray’s trial attorneys.
The

Supreme

Court

of

Virginia

claims, save one not relevant here.
the

court

held

that

Gray

had

shown

dismissed

Gray’s

habeas

In dismissing Claim III,
neither

that

his

trial

counsel performed unreasonably, nor that he suffered prejudice
from

deficient

performance,

the

two

requirements

under

Strickland v. Washington, 466 U.S. 668, 687 (1984).

The court

supported

of

its

holding

with

the

following

findings

fact,

relying heavily on the affidavit of Gray’s trial attorneys:
The record, including the affidavit of counsel,
demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the
murders and that “PCP could not be to blame.”
Furthermore, counsel spoke to every officer involved
in petitioner’s arrest, including Detective Peterman,
and determined that petitioner was not provided any
details from Dandridge’s statement before or during
his statement to the police. The affidavit of counsel
also demonstrates that petitioner never informed
counsel that Detective Peterman had “fed” him the
details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find
any evidence that would have supported a motion to
suppress petitioner’s statements to police.
Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275, 284
(Va. 2011).

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C.
Gray next filed a federal habeas petition, arguing with
respect

to

dismissal

Claim
of

determination

III 2

the
of

that

claim

the

facts

the

Supreme

was
under

based

Court
on

AEDPA’s

an

of

Virginia’s

unreasonable

§ 2254(d)(2).

The

district court determined that, although the state court made
credibility determinations and weighed the parties’ affidavits
without an evidentiary hearing, “Section 2254(d) affords wide
latitude to state courts in fashioning state habeas procedures
and . . . the procedures adopted by the state court were not,
within

the

unreliable.”

context

of

this

case,

inherently

unreasonable

or

Gray v. Pearson, No. 1:11-cv-630, 2012 WL 1481506,

at *12 (E.D. Va. Apr. 27, 2012).

Considering “the totality of

the state court record,” the district court concluded that “the

2

Gray’s original habeas petition includes ten claims. The
first
alleges
that
prosecutors
(a)
failed
to
disclose
exculpatory evidence regarding Dandridge’s culpability and (b)
made false statements about Gray’s confession.
The remaining
claims allege ineffective assistance for failure to: present
evidence of relative culpability between Gray and Dandridge
(Claim II); make a reasonable investigation of Gray’s statements
to police (Claim III); protect Gray’s double jeopardy right
(Claim IV); protect Gray’s right to plead guilty and have
sentencing factors determined in a constitutional manner (Claim
V); object to the prosecutor’s comment on Gray’s failure to
testify (Claim VI); ensure jurors were properly instructed
(Claim VII); move for a mistrial based on juror misconduct and
object to Gray’s exclusion from a hearing on the issue (Claim
VIII); and present sufficient mitigating evidence at sentencing
(Claim IX). Claim X alleges ineffective assistance based on the
cumulative effect of Claims II-IX.
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state

court’s

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determinations

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of

fact

were

not

unreasonable.”

Id.
D.
After Gray filed his federal habeas petition, but before
the district court had ruled on it, the Supreme Court decided
Martinez v. Ryan.

Martinez provides a narrow exception to the

general rule, stated in Coleman v. Thompson, 501 U.S. 722, 752–
53 (1991), that errors committed by state habeas counsel do not
provide cause to excuse a procedural default.

The Supreme Court

summarized its holding as follows:
Where,
under
state
law,
claims
of
ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance
at
trial
if,
in
the
initial-review
collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez, 132 S. Ct. at 1320.
Three aspects of the decision are notable here.
Martinez

permits

defaulted
if

claims

a

petitioner

to

excuse

certain

ineffective-assistance-of-trial-counsel
are

not

procedurally

defaulted—that

First,

procedurally
claims.

is,

they

But
were

properly presented to the state court—then Martinez does not
apply.

See Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir.

2014) (holding that “Martinez does not apply to claims that were
fully

adjudicated

on

the

merits

8

by

the

state

habeas

court

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because

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those

defaulted”).

claims

are,

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by

definition,

not

procedurally

Second, because a petitioner raising a Martinez

claim never presented the claim in state court, a federal court
considers

it

de

novo,

standard of review.

rather

than

under

AEDPA’s

deferential

See § 2254(d) (providing review standards

for “any claim that was adjudicated on the merits in State court
proceedings”).

Finally, a Martinez claim requires a showing

that state habeas counsel was ineffective.
Because Gray’s state habeas attorneys also represented him
in

the

federal

regarding

proceedings,

counsel’s

Martinez claims.
counsel.

ability

a
to

conflict
identify

of
and

interest
argue

arose

potential

Gray therefore moved for appointment of new

The district court denied the motion.

The district court also denied Gray’s habeas petition in
full.

Gray, 2012 WL 1481506, at *20.

The district court then

certified two questions to this court: first, whether the state
habeas

court’s

unreasonable

dismissal

determination

Claim

of

and

second,

the

district

of

on

an

whether

We reserved the first question and answered the second
directing

appointment

based

counsel.

affirmative,

the

facts;

was

entitled

the

to

the

III

Martinez

in

Gray

of

court

independent

to

appoint

independent counsel to explore the existence of Martinez claims.
Gray v. Pearson, 526 F. App’x 331, 335 (4th Cir. 2013).

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After the district court appointed new counsel and granted
Gray’s motions to appoint new experts and an investigator, Gray
filed an amended petition.

He presented four claims, all based

on Martinez, only one of which, Claim XI, is relevant here. 3
this

claim,

Gray

asserts

that

his

trial

attorneys

In
were

ineffective in failing to present evidence of Gray’s voluntary
intoxication at the time of the crimes and that his state habeas
attorneys

were

ineffective

for

not

raising

the

claim

in

the

Supreme Court of Virginia.
The

district

court

ineffective-assistance

treated

claims,

Claim

one

(AJT/TCB),

2014).

As

to

2014
the

WL

2002132,

guilt-phase

as

regarding

and one regarding the penalty phase.
cv-630

XI

two

distinct

the

guilt

phase,

Gray v. Davis, No. 1:11at

*4

claim,

(E.D.
the

Va.

May

district

13,

court

dismissed it for failing to meet certain requirements stated in
Martinez. 4

As to the penalty-phase claim, the district court

3

The amended petition incorporates the original petition by
reference, accepting that the original ten claims had already
been dismissed by the district court.
Accordingly, the claim
numbering in the amended petition begins at XI. The other three
Martinez claims, which are not before us, allege that Gray’s
constitutional rights were violated by a juror’s consideration
of extrinsic evidence (Claim XII), that trial counsel failed to
conduct an adequate mitigation investigation (Claim XIII), and
that the cumulative errors of trial counsel constituted
ineffective assistance (Claim XIV).
4

The district court found two faults with the claim under
Martinez. First, Gray could not make a substantial showing that
(Continued)
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found that Gray’s state habeas counsel had raised it in the
state court.

Id. at *11.

As a result, the claim was not

procedurally defaulted, and Martinez did not apply.
And

even

if

the

penalty-phase

claim

had

been

See id.

procedurally

defaulted, the district court held, it likewise failed to meet
the other Martinez requirements.

Id.

The district court denied the amended petition, but issued
a certificate of appealability with respect to the penalty-phase
claim only. 5

This appeal followed.

II.
Two issues are before us on appeal.

The first is the

reserved claim from Gray’s prior appeal to this court: whether
the

Supreme

ineffective
investigate

Court

of

assistance
Gray’s

Virginia’s
of

trial

confession—was

dismissal
counsel
“based

on

of

Claim

III—

in

failing

to

an

unreasonable

trial counsel performed deficiently, or, assuming they had, that
Gray was prejudiced as a result. Gray, 2014 WL 2002132, at *513. Second, Gray failed to make a substantial showing that his
state habeas counsel were ineffective by not raising the trialcounsel claim.
Id. at *13-14.
Assuming without deciding that
state habeas counsel’s performance was deficient, the district
court held that Gray could not show prejudice. Id.
5

Although Gray moved to expand the certificate of
appealability to include a juror misconduct claim and a separate
ineffective-assistance claim, he did not move to include the
guilt-phase claim. We denied the motion.

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determination of the facts” under AEDPA’s § 2254(d)(2) because
the

court

resolved

evidentiary

hearing.

Martinez,

Gray

may

disputed
The

issues

second

belatedly

of

issue

raise

in

fact
is

the

without

whether,

district

an

under

court

an

ineffective-assistance-of-trial-counsel claim—namely, that trial
counsel failed during the penalty phase to present evidence of
Gray’s voluntary intoxication at the time of the crimes.
consider

each

issue

court’s

denial

of

in
a

turn,

petition

reviewing
for

a

de

writ

novo
of

the

We

district

habeas

corpus.

Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009).
A.
We first consider Gray’s argument under § 2254(d)(2) that
the

Supreme

Court

of

Virginia’s

decision

ineffective-assistance-of-trial-counsel
deference from the federal courts.
court

made

an

“unreasonable

to

claim

deny

Gray’s

warrants

no

According to Gray, the state

determination

of

the

facts”

by

ignoring his evidence and by resolving factual disputes without
an evidentiary hearing.
AEDPA
decided

permits

on

the

adjudication

a

We find neither contention persuasive.
federal

habeas

merits

by

state

“resulted

in

a

court

courts

decision

when
that

to

review

the
was

state
based

claims
court
on

an

unreasonable determination of the facts in light of the evidence
presented

in

§ 2254(d)(2).

the

State

court

proceeding.”

28

U.S.C.

An unreasonable determination of the facts is not
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merely an incorrect determination, but one “sufficiently against
the weight of the evidence that it is objectively unreasonable.”
Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010).
1.
Gray first argues that the Supreme Court of Virginia’s fact
determination
evidence.

was

He

unreasonable

is

concerned

because

primarily

the

court

ignored

his

with

the

affidavit

of

defense investigator Melvin Knight, who interviewed Gray and who
also interviewed some of the police officers involved in Gray’s
arrest

and

interrogation.

In

the

affidavit,

Knight

relates

statements that Gray made about the circumstances surrounding
his confession, including (1) that Gray had asked police for an
attorney, (2) that Gray had told police he was fuzzy on the
details of the crimes because of drug use at the time of the
crimes, and (3) that the police had “fed” him details of the
crimes from his accomplice Dandridge.

The record, however, does

not support Gray’s assertion that the Supreme Court of Virginia
ignored his evidence.
When

a

state

court

apparently

ignores

a

petitioner’s

properly presented evidence, its fact-finding process may lead
to

unreasonable

Moore

v.

Hardee,

determinations
723

F.3d

488,

of

fact

499

(4th

under
Cir.

§ 2254(d)(2).
2013)

(citing

Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)); see also
Miller-El

v.

Cockrell,

537

U.S.
13

322,

346

(2003)

(expressing

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concern

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that

ignored”

a

state

petitioner’s

violation).

court

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“had

probative

before

evidence

it,
of

and

a

apparently

constitutional

In Taylor, for example, the Ninth Circuit found

factual determinations unreasonable when the state court ignored
a

“highly

claim

that

probative”
his

affidavit

confession

denied an attorney.

had

corroborating

the

petitioner’s

been

and

he

coerced

had

been

366 F.3d at 1006 (noting that “[a] rational

fact-finder might discount [the affidavit] or, conceivably, find
it incredible, but no rational fact-finder would simply ignore
it”).
But as we said in Moore, a state court need not refer
specifically to each piece of a petitioner’s evidence to avoid
the accusation that it unreasonably ignored the evidence.

See

723 F.3d at 499; cf. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.
2000) (en banc) (holding that “we may not ‘presume that [the]
summary order is indicative of a cursory or haphazard review of
[the]

petitioner’s

Wright
Rather,

v.
to

claims’”

Angelone,
determine

151

(alteration

F.3d

whether

151,
the

in

157

state

original)
(4th

court

Cir.

(quoting
1998))).

considered

or

ignored particular evidence, the federal court must review “the
entirety of the [state] court’s order.”

Moore, 723 F.3d at 499.

In Moore, the petitioner argued before the state court that
his trial counsel was ineffective in failing to call an expert
on the inaccuracy of eyewitness memory.
14

Id. at 492.

In support

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of the claim, the petitioner filed an affidavit from such an
expert

explaining

presented.
finding

what

evidence

Id. at 492–93.

that

trial

counsel

trial

counsel

could

have

The state court denied the claim,
had

“fully

presented”

relating to petitioner’s eyewitness identification.

evidence

Id. at 493.

The state court listed each piece of the petitioner’s evidence
except the expert’s affidavit and then said that the petitioner
did “not suggest that there is any more evidence regarding the
identification.”

Id.

The district court, taking this assertion

to mean that the state court had ignored the affidavit, found
the determination of fact unreasonable.

Id. at 499.

We reversed, noting that the state court, immediately after
concluding

that

the

petitioner

had

not

offered

“any

more

evidence,” went on to say that “there was no showing to justify
or require an expert on identification.”
we

said,

demonstrated

that

the

state

Id.
court

This statement,
considered

the

petitioner’s submission and reached a conclusion as to which
“‘[fair-minded]

jurists

could

disagree.’”

Id.

(quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).
As in Moore, the record here demonstrates that the Supreme
Court of Virginia did not ignore Gray’s evidence.

Rather, the

court simply determined that Gray’s evidence was not credible.
We base our conclusion in part on the court’s denial of a motion
to strike the Knight affidavit.
15

The warden moved to strike the

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affidavit

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as

inadmissible

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hearsay.

The

parties

ultimately

traded five briefs on the issue, and, in its decision denying
Gray’s petition, the Supreme Court of Virginia denied the motion
to strike.
after

Gray, 707 S.E.2d at 290.

substantial

briefing

The denial of the motion

indicates

that

the

state

court

considered the affidavit.
Our

conclusion

is

strengthened

value of the Knight affidavit.
court’s

failure

to

discuss

by

the

minimal

probative

Whereas in Taylor the state

petitioner’s

“highly

probative”

evidence was inexplicable, here the explanation is simple: the
Supreme Court of Virginia could reasonably have determined that
the Knight affidavit did not warrant discussion.

See Taylor,

366 F.3d at 1001 (“To fatally undermine the state fact-finding
process,

and

overlooked

render

or

the

ignored

resulting

evidence

finding

must

central to petitioner’s claim.”).

be

unreasonable,

highly

probative

the
and

Because fair-minded jurists

could disagree on the correctness of this conclusion, Gray is
not entitled to relief on this aspect of his claim.

See Moore,

723 F.3d at 499.
2.
Next,

Gray

argues

that

the

Supreme

Court

of

Virginia’s

determinations of fact were necessarily unreasonable because the
court failed to hold an evidentiary hearing.
of

arguing

that

evidentiary

hearings
16

are

Gray stops short
always

required,

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claiming

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instead

that

one

Pg: 17 of 45

was

necessary

here

because

strength of his pleadings and supporting evidence.

of

the

The district

court held that the lack of a hearing did not itself render the
determination of facts unreasonable, and its own review of the
record

likewise

unreasonable.

confirmed

that

the

determination

was

not

Gray, 2012 WL 1481506, at *12.

A state habeas court need not hold an evidentiary hearing
in every case to make reasonable fact determinations.
Johnson, 495 F.3d 134, 139 (4th Cir. 2007).

Strong v.

In Strong, the

petitioner alleged ineffective assistance of counsel, claiming
he had asked his attorney to file an appeal, but the attorney
failed to do so despite assurances he would.

Id. at 140.

The

state filed a motion to dismiss, attaching the attorney’s sworn
letter attesting he had met with the petitioner twice to discuss
the appeal and the petitioner had ultimately agreed no appeal
would be filed.

Id.

the

granted

state

adopting

court

the

Without holding an evidentiary hearing,

attorney’s

the

motion

version

of

to

dismiss,

events

and

essentially

rejecting

petitioner’s:
The record, including the affidavit of counsel,
demonstrates
that petitioner
initially
instructed
counsel to appeal his convictions and counsel advised
petitioner that he had no grounds upon which to
appeal.
Petitioner told counsel he understood and
agreed that an appeal would serve no purpose. . . .
Petitioner has failed to establish that he objectively
demonstrated his intent to appeal his conviction.

17

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Id. at 137–38.
We held that the state court’s determination of disputed
facts without a hearing was not unreasonable.
at 140.
court

Strong, 495 F.3d

“[T]here is no prohibition,” we explained, “against a

making

affidavits

credibility

in

certain

determinations

circumstances,”

based

on

including

competing
“when

one

affidavit is cryptic or conclusory with respect to a contested
issue

of

fact

and

account of events.”
As

we

the

other

affidavit

sets

out

a

detailed

Id. at 139.

explain

below,

because

Gray’s

allegations

are

similarly conclusory and the record presents “a detailed account
of events” contradicting the allegations, the Supreme Court of
Virginia

permissibly

resolved

disputed

facts

without

an

evidentiary hearing.
a.
In

support

of

his

ineffective-assistance

claim

in

the

Supreme Court of Virginia, Gray presented evidence in the form
of (1) the Knight affidavit, (2) an account of Gray’s confession
given by Detective Peterman during a hearing held more than a
year

after

the

trial,

and

(3)

18

his

own

allegations

in

the

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petition. 6

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The warden supported its motion to dismiss with an

affidavit from Gray’s trial attorneys.
As to his allegation that he requested an attorney and a
phone call, Gray’s sole evidence is Knight’s retelling of Gray’s
own account: “Mr. Gray told me that during his January 7, 2006,
interrogation by police in Philadelphia, he repeatedly asked for
an attorney and a phone call.”

J.A. 382; see id. at 118.

This

bare, self-serving allegation, however, is strongly contradicted
by the record.
Although Detective Peterman was not specifically asked at
trial whether Gray requested an attorney or a phone call, his
detailed and coherent account of the confession rebuts Gray’s
allegation.

Peterman

described

an

cooperation rather than resistance.

interaction

marked

by

See id. at 19-21 (Peterman

testifying that he told Gray he knew “the truth according to Ray
Dandridge,” and Gray responded, “Can I tell you my side of the
story?”).

Moreover,

he

described

Gray

as

initiating

the

discussion.
We also know from Gray’s signed waiver of counsel that, at
least in the moments before taking Gray’s confession, Peterman
6

While Gray also attempted to rely on the affidavit of
defense mitigation investigator Judith McClendon, the Supreme
Court of Virginia struck that affidavit on the warden’s motion,
Gray, 707 S.E.2d at 290, and Gray offers no challenge to that
decision, see Appellant’s Br. 28-29.

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informed Gray of his right to counsel.

See J.A. 38–39 (Gray

answering “no” to the question, “Do you want to talk to a lawyer
at

any

time

questions?”).
Gray

to

or

have

a

lawyer

with

you

while

we

ask

you

If Peterman’s story were false, one would expect

provide

a

competing

account

or,

at

the

explain his apparently valid waiver of counsel.

very

least,

But Gray has

failed to do either.
In addition to the evidence at trial, Gray’s attorneys say
that they investigated the confession.
affidavit,

they

“travelled

to

According to their joint

Philadelphia,

Pennsylvania,

and

spoke directly to all the officers that had dealt with Gray,
including everyone in the ‘chain of custody’ of his arrest.”
Id. at 700.

Although the attorneys “were actively looking for

suppression issues,” they “could not find grounds for even a
colorable claim to suppress any of the statements Gray made to
law enforcement.”

Id. at 701.

Gray’s attorneys do not state

specifically whether they investigated Gray’s allegation that he
requested an attorney, or even whether they knew of it.
they

do

indicate

that

their

interviews

with

the

But

officers

involved in Gray’s confession did not uncover evidence that Gray
was denied counsel he had requested.
Based on our review of the record, we cannot say that the
Supreme

Court

of

Virginia

was

objectively

unreasonable

in

discounting Gray’s allegation that he was denied counsel and a
20

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phone call.

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The assertion is bare and belated, and the record

evidence contradicting it is detailed.
We reach the same conclusion as to Gray’s allegation that
he could not remember the details of the crimes and was fed his
confession by police.

In his state petition, Gray asserts “that

he told police that he didn’t remember many details because he
was high on a combination of marijuana, ecstasy and PCP when the
crimes were committed.”

Id. at 118.

He then describes how the

police fed him his confession:
[D]etectives went back and forth between his room and
the room in which they were interrogating Dandridge
and showed him Dandridge’s signed statement with full
disclosure and complete details about each of the
murder scenes, read him the statement, and, although
Gray was not clear on the details, used Dandridge’s
statement to fashion a statement purportedly from
Gray.
Id.

Knight independently confirmed with Peterman that Gray had

told the detective “that his memory of the details of the crimes
was fuzzy.”

Id. at 384. 7

Gray’s allegation of being fed details is hardly detailed,
and unanswered questions make it difficult to credit.
details of Gray’s confession came from Dandridge?

Why did Gray

accept them when he could not remember what had happened?

7

Which

And

Gray also relies on statements made by Detective Peterman
in a hearing on an unrelated matter, as discussed in detail
below.

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why, if he was simply accepting the confession as the police
provided it, did he bother to amend his statement, apparently to
remove evidence of premeditation?

See Suppl. J.A. 44 (“Q.

What

happened after you talked [the Harvey family] downstairs [i.e.,
into the basement]?
gonna be all right.
As

further

Detective

A.

We was playing like everything was

Everything was all right.”).

support

Peterman’s

for

his

testimony

allegation,

given

more

Gray

than

a

points
year

Gray’s trial in a hearing on a separate criminal matter.
Peterman states

that

before

he

recorded

the

to

after
There,

confession

as

a

formal question-and-answer dialogue, he first asked what Gray
knew about the crime.

Gray argues that this statement proves

that Peterman had the opportunity during preliminary discussions
with Gray to learn of the gaps in Gray’s memory and fill them in
with details from Dandridge’s account.
not

give

answers.

the

slightest

hint

of

having

Peterman, however, did
coached

Gray

on

his

See J.A. 396 (“[Gray’s attorney to Peterman]: And is

it fair to say that the way you would approach it is you would
talk to him about a specific incident before committing anything
to writing?

[Peterman]: Would I give him information about it?

I would tell Rick what I wanted to know about the incident that
I was questioning him about, and if he had any information about
it that he wanted to share with me.”).

22

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Gray

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also

contends

that

Pg: 23 of 45

this

new

testimony

Peterman lied at trial about the confession.

proves

that

At trial, Peterman

described in general terms sitting down with Gray and obtaining
Gray’s waivers of his Fifth and Sixth Amendment rights.
prosecutor

then

asked

Peterman

a

series

of

questions

The
about

Gray’s demeanor during the confession and established that the
confession

had

been

recorded

only

in

writing.

Next,

the

prosecutor asked, “Detective Peterman, is there any aspect of
your interview with Mr. Gray that we haven’t gone over that
leads up to the actual substance of the interview?”
“No,” Peterman responded.

Id. at 24.

Id. at 23.

The prosecutor continued:

“Now, am I correct that you asked him a series of questions and
he provided a series of answers to you?”
“That’s correct.”

Id.

Id.

Peterman replied,

The prosecutor then had Peterman read

the recorded questions and answers to the jury.
Gray posits that this exchange shows Peterman attempted to
conceal

off-the-record

discussions

interpretation unconvincing.

with

Gray.

We

find

this

Peterman never denied having an

informal preliminary discussion, nor did his responses at trial
foreclose the possibility.
Critically, when Peterman was asked at trial whether he “at
any

point

assist[ed]

happened,”

including

Mr.

Gray

of

what

that

Mr.

Dandridge had told” Peterman, the detective replied, “No.”

Id.

“tell[ing]

23

in

his
[him]

recollection
anything

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at 30.

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Pg: 24 of 45

In Peterman’s account, Gray prompted the conversation

about the crimes after learning that Peterman had already spoken
with Dandridge.

Having acknowledged his constitutional rights,

including

his

right

questions

about

the

to

counsel,

crimes.

Gray

Gray

answered

reviewed

the

Peterman’s

statement

as

Peterman had recorded it and certified that it was correct and
accurate.

And according to the Knight affidavit, Peterman gave

a similar account of the confession prior to trial.

See id. at

384 (noting that Peterman “denied that a ‘dry run’ interview
preceded the written verbatim statement”).
Trial

counsel’s

joint

affidavit

corroborates

Peterman’s

account of the confession:
There was no evidence that the police fed Gray any
facts
from
Dandridge’s
statements
when
they
interviewed Gray.
The information we obtained about
the interview procedures all was consistent with the
trial testimony: Gray asked, during a bathroom break,
if the police had spoken to Dandridge; the detective
said yes; Gray asked what Dandridge said; the answer
was “everything” or some similar general comment; and
Gray then proceeded to give his statement.
Id. at 701.
Trial counsel also stated that “Gray did not tell us that
he had been fed details of the crimes.”

Id.

According to the

Knight affidavit, however, Gray told Knight precisely that.
Supreme

Court

affidavit,
demonstrates

of

found
that

Virginia,
that

without

“[t]he

petitioner

referring

affidavit
never

24

of

informed

to

the

The

Knight

counsel . . .
counsel

that

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Detective Peterman had ‘fed’ him the details of the crimes or of
Dandridge’s statements to police.”

Gray, 707 S.E.2d at 284.

While we find this troubling to the extent it suggests the state
court

preferred

nevertheless
based

on

cannot
“an

§ 2254(d)(2).
allegations,
Supreme

the

attorneys’

say

that

unreasonable
Even

the

if

evidence

Court

of

affidavit

the

state

to

attorneys

we

have

Virginia’s

of

was

the

facts.”

about

knew

described

we

decision

court’s

determination

the

Knight’s,

Gray’s

supported

determination

that

the

Gray’s

allegations were not credible.
Finally, Gray’s trial attorneys contradict his claim that
drug

use

clouded

his

memory

of

the

crime:

repeatedly that PCP could not be to blame.
knew what he was doing.”

“Gray

insisted

He insisted that he

J.A. 706; see also id. 720 (doctor

conducting competency evaluation noting that Gray “insisted he
was never so intoxicated that he felt it destroyed his ability
to understand what was happening”); id. 726 (doctor conducting
evaluation of Gray’s mental condition at the time of the crime,
noting that Gray “denied that as a result of his drug use . . .
he

was

unaware

of

his

actions

at

the

time

of

the

present

offenses”).
In the face of all this, we cannot say that the state
court’s decision to reject Gray’s ineffective-assistance claim

25

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without

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holding

a

Pg: 26 of 45

hearing

determinations of fact.

resulted

in

unreasonable

See § 2254(d)(2).
b.

To persuade us otherwise, Gray cites a number of cases in
which the United States Supreme Court has required a state court
to hold an evidentiary hearing.

But while these cases support

the general proposition that due process sometimes requires a
hearing, they do not establish that one was required here.
Gray’s

reliance

on

Panetti

v.

(2007), is particularly misplaced.

Quarterman,

551

U.S.

930

Whereas Panetti addresses

the unreasonable application of federal law under § 2254(d)(1),
Gray

is

fundamentally

attacking

the

way

the

state

court

determined facts, not the way it applied a particular Supreme
Court precedent. 8

In Panetti, the district court failed to hold

an

hearing

incompetency

precedent.

Id. at 948.

as

required

under

Supreme

Court

Unlike the petitioner in Panetti, Gray

has not identified a Supreme Court case that entitles him to a
hearing.

Strickland,

the

basis

provides no such entitlement.

for

Gray’s

claim,

certainly

See 466 U.S. at 700 (“The state

8

Although Gray occasionally couches his arguments in terms
of
an
“unreasonable
application”
of
federal
law
under
§ 2254(d)(1), we find that his arguments are better addressed
under § 2254(d)(2).
See Winston, 592 F.3d at 553 (noting that
Ҥ 2254(d)(2) describes the standard to be applied to claims
challenging how the state courts determined the facts”).

26

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courts

Filed: 11/25/2015

properly

concluded

Pg: 27 of 45

that

the

ineffectiveness

claim

was

meritless without holding an evidentiary hearing.”).
Nor

was

Gray’s

claim

given

the

kind

of

short-shrift

treatment that the Supreme Court rejected in Pennsylvania ex
rel. Herman v. Claudy, 350 U.S. 116 (1956), and Palmer v. Ashe,
342 U.S. 134 (1951).
confession

and

In Claudy, the petitioner alleged that his

guilty

plea

had

been

coerced

by

threats

to

himself and his family, and that he was denied the benefit of
counsel.
and,

350 U.S. at 117.

without

dismissed.

holding

a

The state denied the allegations

hearing,

Id. at 117–18.

the

state

court

summarily

According to the Supreme Court,

summary dismissal of the petitioner’s claims “merely because the
allegations of his petition were contradicted by the prosecuting
officers” was unreasonable.

Id. at 123.

Supreme

had

Court

of

Virginia

not

Here, by contrast, the

only

the

officers’

word

against Gray’s, but also contradictory statements from Gray and
the affidavit of Gray’s trial attorneys.
Similarly, in Palmer, the Court required a state court to
provide a hearing to determine whether the petitioner should
have

been

afforded

counsel

where

he

alleged

he

was

intellectually disabled and police had tricked him into pleading
guilty to armed robbery when he thought he was pleading to the
less serious crime of breaking and entering.
38.

342 U.S. at 136–

A hearing was necessary because the “record does not even
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inferentially

deny

Pg: 28 of 45

petitioner’s

charge

that

the

officers

deceived him, nor does the record show an understanding plea of
guilty from this petitioner, unless by a resort to speculation
and surmise.”

Id. at 137.

Here, again, Gray’s case is quite

different—the record provides strong evidence that Gray’s claims
are not credible. 9
Finally, Gray directs our attention to Brumfield v. Cain,
135

S.

Ct.

2269

(2015).

There,

the

state

court

denied

petitioner an evidentiary hearing in which to prove that he was
intellectually disabled under Atkins v. Virginia, 536 U.S. 304
(2002).

Brumfield, 135 S. Ct. at 2274–75.

In finding some of

the state court’s fact determinations unreasonable, the Supreme
Court took into account what evidentiary standard would entitle
the petitioner to a hearing: “Brumfield needed only to raise a
‘reasonable doubt’ as to his intellectual disability.”
2281.

Id. at

Because this standard imposed a low burden of proof on

Brumfield,

the

Court

concluded

that

he

met

the

“reasonable

doubt” standard even though “other evidence in the record before

9

Nor is McNeal v. Culver, 365 U.S. 109 (1961), helpful to
Gray. As in Claudy and Palmer, the petitioner’s allegations of
a constitutional violation in McNeal were not significantly
called into question by the record. Id. at 117 (“On the present
record it is not possible to determine [the allegations’]
truth.”).

28

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state

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court

may

have

intellectual disability.”

Pg: 29 of 45

cut

against

Brumfield’s

claim

of

Id. at 2280.

Gray contends that, as in Brumfield, the Supreme Court of
Virginia’s

findings

of

fact

are

unreasonable

under

the

applicable evidentiary standard: “[T]he state court in Gray’s
case failed to recognize that Gray’s evidence, viewed in the
light most favorable to him, should defeat the Warden’s motion
to dismiss.”

Appellant’s Letter Br. 2.

To the extent Gray

implies that the state court was not permitted to discount his
evidence where it was contradicted by the record, his argument
is in tension with Strong.
prohibition

against

a

495 F.3d at 139 (noting “there is no

court

making

credibility

determinations

based on competing affidavits in certain circumstances”).

And

nothing in Brumfield casts doubt on our precedent.
In sum, because Gray’s claim of ineffective assistance of
counsel

is

based

on

his

own

“conclusory”

allegations,

and

because the record provides sufficient evidence to contradict
them,

we

hold

that,

as

in

Strong,

the

state

court’s

determination of the facts was not objectively unreasonable even
without an evidentiary hearing.
B.
We next consider Gray’s contention that he is entitled to
raise in the district court a claim of ineffective assistance of
trial counsel under Martinez v. Ryan.
29

As we have explained,

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Martinez permits a petitioner, under certain circumstances, to
excuse a procedural default and bring a claim in federal court
that was not raised in state court.

Such a claim, never having

been heard by a state court, is reviewed de novo.

As a result,

the usual roles of the habeas petitioner and the government are
reversed here.

Gray, seeking de novo review, argues that his

ineffective-assistance-of-trial-counsel

claim

was

procedurally

defaulted—an outcome that would normally bar the claim.

The

warden, seeking to deny Gray the benefit of Martinez, argues
that Gray properly presented the claim to the Supreme Court of
Virginia.
The district court sided with the warden, holding that the
trial-counsel claim was not procedurally defaulted and therefore
Martinez did not apply.
district

court

presented

to

“Gray’s
Claim

the

[new]

IX

compared

only

the

Supreme

Claim
in

See Gray, 2014 WL 2002132, at *11.

XI

that

“new”

Court

differs
it

is

claim

of

with

Virginia,

from
framed

his

claims

The

already

concluding

previously

exclusively

that

asserted

within

the

context of a voluntary intoxication defense and the effect such
a presentation would have likely had on a jury who found a death
sentence.”

Id.

As we explain below, we agree with the district court that
the

claim

Virginia

was
and

properly
thus

not

presented

to

procedurally
30

the

Supreme

defaulted.

Court
The

of

claim

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therefore
result,

Filed: 11/25/2015

cannot
we

do

Pg: 31 of 45

be

reviewed

de

not

consider

novo

the

under

district

Martinez.
court’s

As

a

alternate

holdings that, under Martinez, the claim is not “substantial”
and Gray’s state habeas counsel was not ineffective in failing
to raise it.

See id. at *5–14.
1.

Before

seeking

federal

habeas

review

of

a

claim,

a

petitioner ordinarily must raise that claim in the state court,
complying with state procedural rules and exhausting available
state

remedies.

See

Coleman,

501

U.S.

at

750.

When

a

petitioner fails to comply with state procedural rules and a
state court dismisses a claim on those grounds, the claim is
procedurally

defaulted

foreclosed.

Id. at 729.

petitioner

must

and

federal

review

is

generally

To overcome a procedural default, a

demonstrate

either

(1)

cause

and

resulting

prejudice, or (2) that the failure to review the claim “will
result in a fundamental miscarriage of justice.”

Id. at 750.

Likewise, when a habeas petitioner fails to exhaust state
remedies for a claim, federal review is not available until the
petitioner

either

returns

to

state

court

with

the

claim

or

demonstrates that such an attempt would be futile, in which case
the claim is treated as procedurally defaulted.
Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
requirements,

in

keeping

with
31

the

See Breard v.

The purpose of these

principles

of

comity

and

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federalism,

is

consider

defendant’s

a

violations.

to

give

the

Pg: 32 of 45

state

claims

courts

and

to

an

opportunity

correct

to

constitutional

See Rose v. Lundy, 455 U.S. 509, 518–19 (1982).

To

exhaust a claim, the petitioner must present the state court
with

“both

the

principles.”
But

if

operative

facts

and

the

controlling

legal

Winston, 592 F.3d at 549.
a

claim

is

exhausted

in

state

court

and

not

procedurally defaulted, then it was adjudicated on the merits
and is subject to review under the deferential standards set
forth in AEDPA’s § 2254(d).

See Richter, 562 U.S. at 99.
2.

Gray

cannot

raise

his

Martinez

claim

unless

it

was

procedurally defaulted, and that question in turn depends on
whether

Gray

Virginia.

exhausted

the

claim

in

the

Supreme

Court

of

Unlike in Martinez, where the state court barred the

petitioner’s claim on procedural grounds, here Gray argues that
he is presenting “a new, unexhausted claim” that would be futile
to take back to the Virginia courts.
We

hold

that

Gray

properly

assistance-of-trial-counsel
proceedings.
titled
Gray

exhausted
in

his

his

ineffective-

state

habeas

Most notably, in Claim IX of his state petition,

“Gray’s
argued

claim

Appellant’s Suppl. Br. 43.

Trial

that

Counsel

Dr.

Was

Cunningham,

Ineffective
a

At

clinical

Sentencing,”
and

forensic

psychologist, “could have provided expert testimony on Gray’s
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use of PCP and other drugs at the time of the offense to show
how studies link such use in individuals such as Gray to violent
behavior and moral responsibility.”
(citation

omitted).

This

J.A. 153 (emphasis added)

statement

made

explicit

what

was

implicit elsewhere in the state habeas petition: Gray believed
that his trial counsel, during the sentencing proceeding, failed
to

put

before

intoxication

the

at

the

jury
time

adequate
of

the

evidence

of

crimes.

his

See

voluntary

id.

at

146

(faulting trial counsel for failing to provide “expert testimony
to explain what precipitated the drug use and the impact of the
drug use on the defendant’s moral culpability and behavior”);
id. at

146–47

(“The

presentation

of

drug

use

without

expert

testimony was ineffective assistance.”); id. at 147–48 (arguing
that Dr. Lisak could have explained to the jury that “drugs
became

the

motivator

central
of

much

focus

of

of

[Gray’s]

his

life

behavior,

and

the

including

primary
criminal

behavior”).
We

conclude

“reasonable

that

Gray

exhausted

fact-finder . . .

could

the

have

claim
found

because
the

a

facts

necessary to support the petitioner’s claim from the evidence
presented to the state courts.”

Winston, 592 F.3d at 551.

claim was therefore not procedurally defaulted.

33

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3.
Gray insists that the claim is not exhausted because his
newly proffered evidence in the district court “fundamentally
alters the nature of any claim that may have been before the
state court.”

Suppl. Reply Br. at 2.

But a properly exhausted

state claim is not necessarily altered by the submission of new
evidence on federal habeas review.
Gray

relies

on

petitioner’s
evidence”

v.

Warden,

introduction

in

unexhausted.

Wise

his

of

federal

Winston, 592 F.3d at 549.
in

which

previously

habeas

we

held

undisclosed

petition

rendered

839 F.2d 1030, 1034 (4th Cir. 1988).

that

the

“critical
the

claim

However, as

we later explained in Winston, Wise stands for the proposition
that a petitioner may not support a claim in state court with
“mere

conjecture”

evidentiary

and

support

subsequently

for

the

claim

provide

on

the

federal

necessary

habeas

review.

Winston, 592 F.3d at 551 (explaining that Wise “distinguish[ed]
a claim without evidentiary support from one with evidentiary
support”).
Here,
clinical

Gray’s

new

psychologist

evidence,
and

a

including

affidavits

neuropharmacologist,

has

from

a

perhaps

strengthened the claim, but it has not “fundamentally altered”
it.

The

heart

of

the

claim

remains

the

same:

his

trial

attorneys should have done more to show how Gray’s intoxication
at the time of the crimes lessened his culpability.
34

Moreover,

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while

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Gray’s

Pg: 35 of 45

new

expert

affidavits

provide

information

about

the

cumulative

effects

conclusions

necessarily

remain

speculative

a

great
of

deal

PCP,

without

of

their

specific

evidence of how intoxicated Gray was at the time of the crimes.
See, e.g., Suppl. J.A. 244 (“Had I been able to test Mr. Gray
close to the time of the crime, the results would likely have
shown very clear impairment.”); id. at 251 (“Mr. Gray’s memory
was inadequate for me to determine with precision his state of
mind and symptoms during the commission of these crimes.

The

amnesia itself is consistent with his report of PCP use.”); id.
at 252 (“It is abundantly clear that around the time of the
crimes . . . he was using [PCP] . . . along with other drugs,
including marijuana and alcohol.”).

So while the addition of

the expert affidavits certainly places greater emphasis on the
issue

of

Gray’s

intoxication,

the

new

evidence

has

not

“fundamentally altered” the claim.
In

sum,

because

Gray

exhausted

his

court, it was not procedurally defaulted.

claim

in

the

state

As a result, the

district court properly dismissed Gray’s Martinez claim. 10

10

Because we find the Martinez claim may not be reviewed de
novo in the district court, we do not address Gray’s argument
that the district court was required to hold an evidentiary
hearing on it.

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III.
For

the

reasons

given,

we

affirm

the

district

court’s

dismissal of Gray’s petition.
AFFIRMED

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DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
I agree with my friends in the majority that Ricky Jovan
Gray

exhausted

constitutionally

his

claim

ineffective

that

in

trial

failing

to

counsel
present

were

evidence

during the penalty phase of his trial that he was voluntarily
intoxicated during the commission of the crimes.
because
facts

a

“reasonable

necessary

to

fact-finder . . . could

support

[Gray’s]

claim

Furthermore,

have

from

found

the

the

evidence

presented to the state court[],” Winston v. Kelly, 592 F.3d 535,
551 (4th Cir. 2010), I agree with the majority that the district
court properly dismissed Gray’s Martinez claim.

But I disagree,

respectfully, with the majority’s determination that the Supreme
Court of Virginia’s resolution of disputed issues of fact, based
on

conflicting

without

an

unreasonable
2254(d)(2).

and

partially

evidentiary

unaddressed

hearing,

determination

of

the

did
facts

sworn

not

affidavits,

amount

under

28

to

an

U.S.C.

§

I therefore concur in part and dissent in part.

In his habeas petition to the Supreme Court of Virginia,
Gray

presented

counsel.

several

claims

of

ineffective

assistance

of

He grounded one such claim in his trial counsel’s

alleged failure to undertake a reasonable investigation into the
circumstances surrounding his confession.

Gray alleged that,

during the course of his January 7, 2006 police interrogation,

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he had repeatedly requested an attorney and a phone call, but
the police denied both requests, continued the interrogation,
and

ultimately

obtained

his

written

confession.

Gray

also

asserted that he had told the police that he could not remember
many details of the crimes because of his drug use during the
day in question.

Gray claimed that the police had responded by

showing

statement

him

the

of

one

of

his

accomplices,

Ray

Dandridge, and by helping Gray fashion his own confession in
reliance

on

many

of

the

details

included

in

Dandridge’s

statement.
Importantly, Gray alleged in his habeas petition that he
had

expressly

informed

his

trial

counsel

of

the

details

surrounding his interrogation and confession during a February
10,

2006

meeting.

Even

though

Gray

had

relayed

this

information, his trial counsel allegedly failed to conduct a
reasonable
counsel

investigation

adequately

into

these

investigated

the

matters.

Had

circumstances

his

trial

surrounding

Gray’s interrogation and confession, Gray asserted, his trial
counsel could have moved to suppress his confession or used the
results

of

the

investigation

to

impeach

the

testimony

of

Detective Howard Peterman during trial. *

*

Detective Peterman, of the Philadelphia Police Department,
testified at length at trial about the circumstances that led to
his questioning of Gray and the substance of Gray’s written
(Continued)
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Gray supported his ineffective assistance of counsel claim
and his recollection of the January 7, 2006 police interrogation
and confession with the affidavit of Melvin B. Knight.

Knight

was an investigator with the Office of the Capital Defender of
the Central Region of Virginia and was tasked with assisting
Gray’s trial counsel in preparing Gray’s defense.

Prior to his

employment with the Office of the Capital Defender, Knight was a
law

enforcement

officer

with

the

City

of

Richmond

Police

Department for more than twenty-five years.
In his affidavit, Knight recounted his February 10, 2006
interview with Gray and explained that Gray had expressly stated
that he had asked for an attorney and a phone call during his
questioning by police.

Knight also remembered Gray mentioning

that he could not remember many details of the crimes because he
had been high on a combination of marijuana, ecstasy, and PCP at
the

time

the

crimes

were

committed.

Gray

also

indicated,

according to Knight, that he had shared this information with
the police.
unable

to

Gray then told Knight that, because he had been
remember

interrogation,

the

many
police

details
had

of

the

assisted

crimes
Gray

in

during
crafting

his
a

confession.
Detective Peterman acknowledged that he informed
Gray that Dandridge was also in custody at police headquarters,
but Detective Peterman asserted that, after being made aware of
his rights, Gray volunteered to tell his side of the story and
did so without learning the details of Dandridge’s confession.
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written

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statement

Dandridge.

based

Pg: 40 of 45

upon

the

statement

prepared

by

In short, a plausibly credible witness offered sworn

facts more than trivially corroborative of Gray’s allegations
supporting a claim of ineffective assistance.
As the majority opinion recounts, the Warden filed a motion
to dismiss Gray’s habeas petition, specifically arguing that an
evidentiary hearing was neither necessary nor permitted.
support

of

affidavit

his
of

motion

Gray’s

Theodore D. Bruns.

to

dismiss,

trial

the

counsel,

Warden

Jeffrey

In

submitted

L.

the

Everhart

and

The attorneys asserted that Gray had never

told them that he had been fed details of the crime.

Further,

the attorneys explained that they had interviewed each police
officer

who

questioned

Gray

on

January

7,

2006,

including

Detective Peterman, and each officer confirmed that Gray had
confessed

voluntarily

Dandridge’s

and

confession.

without
The

acquiring

attorneys

also

information
spoke

of

from

Gray’s

insistence that PCP was not to blame for his criminal actions
and

that

however,

he

had

known

what

did

not

directly

he

was

address

doing.

Gray’s

The

assertion

attorneys,
that

his

heavy drug use during the day in question left him unable to
remember many of the crimes’ details during his interrogation.
On March 4, 2011, the Supreme Court of Virginia granted the
Warden’s motion to dismiss the relevant ineffective assistance
of counsel claim without affording Gray an evidentiary hearing.
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Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275 (Va.
2011).

In ticking through Gray’s several habeas claims, the

Virginia Supreme Court explained that:
The record, including the affidavit of counsel,
demonstrates that petitioner insisted to counsel that
he knew what he was doing when he committed the
murders and that “PCP could not be to blame.”
Furthermore, counsel spoke to every officer involved
in petitioner’s arrest, including Detective Peterman,
and determined that petitioner was not provided any
details from Dandridge’s statement before or during
his statement to the police. The affidavit of counsel
also demonstrates that petitioner never informed
counsel that Detective Peterman had “fed” him the
details of the crimes or of Dandridge’s statements to
police and that counsel looked for but could not find
any evidence that would have supported a motion to
suppress petitioner’s statements to police.
. . .
The record, including the trial transcript,
petitioner’s
statement
to
the
police,
and
the
affidavit of counsel, demonstrates that petitioner
understood his constitutional rights and voluntarily
agreed to speak to the police about the murders and
that counsel looked for but could not find any
evidence that would have supported a motion to
suppress petitioner’s statement to the police.
Id. at 283-84.
After the Supreme Court of Virginia dismissed his habeas
petition,

Gray

sought

federal

habeas

relief.

He

based

his

federal challenge in part on the Supreme Court of Virginia’s
decision to dismiss his ineffective assistance of counsel claim
without affording him an evidentiary hearing and the opportunity
to develop a factual record.

Gray asserted that, because the

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Supreme

Filed: 11/25/2015

Court

of

Pg: 42 of 45

Virginia

presumably

ignored

the

Knight

affidavit and resolved related factual disputes regarding his
ineffective assistance of counsel claim without the benefit of
an

evidentiary

unreasonable

hearing,

the

determination

of

dismissal
the

amounted

facts

under

to
U.S.C.

§

28

an

2254(d)(2) of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”).
While it is a close question, I am constrained to agree
with

Gray.

As

the

district

counsel’s

affidavit

and

“differed

sharply”

from

provided

in

Gray’s

court

Detective

observed,

Peterman’s

trial

affidavit

Knight’s

verified

aptly

and

petition.

Gray

v.

trial

testimony,

the

details

Pearson,

No.

1:11-cv-630, 2012 WL 1481506, at *11 (E.D. Va. Apr. 27, 2012).
Despite this sharply conflicting evidence, the Supreme Court of
Virginia

effectively

adopted

the

affidavit

of

Gray’s

trial

counsel as fact absent any apparent analysis and without first
providing
record

Gray

through

“any

opportunity

discovery

with

.

.

.

to

compulsory

develop

process

a

or

factual
to

test

disputed issues of fact through the type of adversarial process
historically thought essential to the truth-finding function of
a court.”
The

Id.
district

court

and

the

majority

correctly

recognize

that AEDPA’s § 2254(d) restriction creates a “highly deferential
standard

for

evaluating

state-court
42

rulings.”

Cullen

v.

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Pinholster,
However,

Filed: 11/25/2015

563

the

U.S.

Supreme

170,
Court

Pg: 43 of 45

131

S.

has

Ct.

implied

1388,
that

1398
state

a

(2011).
court’s

fact-finding may be unreasonable when the court “had before it,
and

apparently

claim.

ignored,”

evidence

supporting

a

petitioner’s

See Miller-El v. Cockrell, 537 U.S. 322, 346 (2003).

While the majority is content to assume that the Supreme Court
of Virginia appropriately evaluated the Knight affidavit, which
directly

conflicted

with

the

trial

testimony

of

Detective

Peterman and the affidavit of Gray’s trial counsel, there is
nothing in the opinion to suggest that the Supreme Court of
Virginia considered Knight’s affidavit, much less engaged in the
difficult process of weighing the credibility of the affiants on
a conflicting record.
The majority notes that it is troubled by the Supreme Court
of

Virginia’s

observable

preference

for

trial

counsel’s

affidavit as compared to the Court’s treatment of Knight’s and
suggests that, despite not mentioning the Knight affidavit, the
Supreme

Court

of

Virginia

assuredly

took

the

affidavit

into

consideration because it ruled on the Warden’s motion to strike
the affidavit.
strike

the

The Court’s ruling on the Warden’s motion to

affidavit,

however,

comes

in

a

singular

and

unsupported sentence at the conclusion of its opinion dismissing
Gray’s ineffective assistance of counsel claim, and the motion
to strike the Knight affidavit was incorporated into a broader
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motion

to

Filed: 11/25/2015

strike

that

proffered by Gray.
certain

Pg: 44 of 45

concerned

several

of

the

affidavits

While such context may be sufficient in

circumstances

to

support

the

resolution

of

disputed

issues of fact by a state court, based on conflicting sworn
affidavits, without an evidentiary hearing, the facts presented
in

the

Knight

affidavit

stood

in

direct

conflict

with

those

offered by trial counsel and the affidavit was at the heart of
Gray’s ineffective assistance of counsel claim.

Accordingly,

while I believe that “[a] rational fact-finder might discount
[the

affidavit]

or,

conceivably,

find

it

incredible, . . . no

rational fact-finder would simply ignore” the affidavit or fail
to address it entirely.

See Taylor v. Maddox, 366 F.3d 992,

1006 (9th Cir. 2004).
Because the Supreme Court of Virginia—in resolving disputed
issues of fact, based on conflicting and partially unaddressed
sworn

affidavits,

unreasonable

without

determination

an
of

evidentiary
the

facts

hearing—made

under

28

an

U.S.C.

§

2254(d)(2), I would vacate the judgment of the district court as
to Gray’s ineffective assistance of counsel claim and remand for
an evidentiary hearing and the development of a full factual
record.
Of
remotely

course,
reflect

my
any

difference
view

of

with

the

majority

trial

counsel.

does

With

a

not
few

exceptions spread in reported cases, defense counsel in capital
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cases perform conscientiously and in a manner entirely faithful
to

the

truism,

noble

ideals

however,

of

such

the

legal

counsel

are

profession.
not

at

all

Despite

this

surprised

or

bothered by the fact that, given the stakes, their judgments and
their trial performances will likely come under attack by fellow
counsel

in

subsequent

post-conviction

proceedings.

entail,

as

it

have

in

case,

to

the

conscientious
examination.

should
counsel

this

This

subjecting

unpleasantness

of

may
such

cross-

But our adversary system in cases involving the

highest of stakes—life or death—should admit of nothing less.

45