Gray v. Kelly

Filing 166

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 05/13/2014. (jlan)

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

RICKY JAVON GRAY,

Petitioner,

Case No. 1:11-cv-630 (AJT/TCB)
KEITH W. DAVIS, WARDEN,
Sussex I State Prison,

Respondent.

MEMORANDUM OPINION

Petitioner Ricky Javon Gray ("Gray" or "Petitioner") presents four claims in his
Amended Petition for Habeas Corpus [Doc. No. 146]. This matter is before the Court on the

Motion to Dismiss the Amended Petition [Doc. No. 152] of Respondent Keith W. Davis,

Warden, Sussex I State Prison (the "Warden" or "Respondent").
Factual Background and Procedural History

The facts pertaining to Gray's underlying offense conduct and the procedural history of
the case is set forth in the Court's Memorandum Opinion dated April 27,2012 [Doc. No. 68],
which is incorporated herein by reference.
By Amended Order dated May 18,2012 [Doc. No. 74], the Court dismissed Petitioner's

Petition for a Writ of Habeas Corpus and certified two questions, the second of which was

whether Petitioner was entitled to counsel in addition to his state habeas counsel for the purpose
of assessing whether there existed any defaulted claims that could be asserted in federal habeas

proceedings under the holding of Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012).
By Order dated June 7, 2013 [Doc. No. 91], the Fourth Circuit "conclude[d] that Gray was

1

entitled to the appointment of independent counsel in his federal habeas proceeding [for the

purpose of assessing whether there existed any cognizable defaulted claims under the holding of
the United States Supreme Court in Martinez v. Ryan]... and vacate[d] the judgment and

remandfed] for further proceedings, deferring consideration of his first claim." Doc. No. 91.' As
directed by the Fourth Circuit, such new counsel were to "vigorously examine and present if
available potential claims of ineffective assistance" of counsel in his state habeas proceedings that
could excuse otherwise defaulted claims of ineffective assistance of trial counsel, as set forth in
Martinez." Id.

On July 3,2013, this Court appointed independent counsel for Gray and granted Petitioner
leave to file an amended petition for a writ of habeas corpus "based on any claims, not previously
presented, which may be asserted based on the holding in Martinez." Doc. No. 94. On July 24,

2013, Gray filed his Motion for the Appointment of Counsel [Doc. No. 96], requesting that the Court
appoint additional independent counsel, which the Court granted by its Order dated August 2,2013
[Doc. No. 102]. Subsequently, on August 20, 2013, Gray filed his Renewed Motion for Appointment
of Mental Health Expert [Doc. No. 104] and Motion for Appointment of Investigators [Doc. No.

105], both of which this Court denied by its Orders dated August 28,2013 [Doc. Nos. 112, 113].

Petitioner then filed his Motion for Appointment of Pharmacologist [Doc. No. 115] on September 6,
2013, requesting the appointment of Dr. Wilkie A. Wilson to assist in the investigation and
presentation of a defense of voluntary intoxication, focusing on the effects of PCP on the human

brain, and specifically on Petitioner's mental state at the time ofthe crime. After hearing oral
argument, the Court granted that motion in its Order dated September 20, 2013 [Doc. No. 120]. On
September 27, 2013, Gray filed his Motion for Appointment of Investigator [Doc. No. 122],

requesting that Stephanie Bouis, a clinical social worker and capital mitigation specialist be

1Gray's appeal was otherwise "held in abeyance on the remaining claim pending completion of
proceedings on remand." Doc. No. 114.

appointed to further investigate the voluntary intoxication claim by "interviewing] lay witnesses
who observed Petitioner's substance abuse and symptoms of intoxication during the relevant time

period." By Order dated October 7,2013 [Doc. No. 132], the Court granted that motion. Gray then
filed his Motion for Appointment of Neuropsychologist [Doc. No. 143] on November 1,2013,

requestingthat Dr. Kristine M. Herfkens be appointed by this Court to assist Dr. Wilson in rendering
his opinion, specifically to "answer the question of the extent to which organic brain damage
may have exacerbated the impact of Petitioner's intoxication and impairment at the time of the
crime." By Order dated November 8, 2013 [Doc. No. 139], the Court granted that motion. On

December 16,2013, Petitioner filed his Amended Petition for a Writ of Habeas Corpus [Doc.
No. 146], in which he presents four claims:

(1) ineffective assistance of state trial counsel in failing to present evidence of Gray's
voluntary intoxication at the time of the crime (Claim XI);

(2) ineffective assistance of state habeas counsel in failing to interview the jurors on the
grounds that, had they done so, they would have found that Gray's conviction and death sentence
were tainted by one juror's reliance on extraneous influences in violation of his constitutional
rights (Claim XII);

(3) ineffective assistance of statetrial counsel in failing to present in mitigationa

complete picture of the physical, sexual, and emotional abuse perpetrated on Gray (Claim XIII);
and

(4) cumulatively ineffective assistance of state trial counsel which was thus prejudicial
(Claim XIV).
On January 31, 2014, the Warden filed his Rule 5 Answer and Motion to Dismiss the

Amended Petition [Doc. No. 152]. On March 14, 2014, the Court heard oral argument,
following which the Court took the Motion to Dismiss under advisement.
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Standard of Review under Martinez

Pursuant to the Fourth Circuit's mandate, this Court must consider any "potential claims
of ineffective assistance" of counsel in Petitioner's state habeas proceedings that could excuse
otherwise defaulted claims of ineffective assistance of trial counsel, as set forth in Martinez. See
Doc. No. 91.

A claim is procedurally defaulted if a prisoner fails to abide by a state procedural rule,
such that the claim is not properly presented in a state court proceeding. Martinez v. Ryan, 132 S.
Ct. at 1316 (citing Coleman v. Thompson, 501 U.S. 722, 747-748, 111 S. Ct. 2546,115 L. Ed. 2d

640 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)). Generally, a procedural default

may be forgiven, and thus a federal court may review the defaulted claim, only if a prisoner is
able to show both "cause" for the default and "prejudice" from a violation of federal law. See
Wainwright, 433 U.S. at 84; Coleman, 501 U.S. at 750. Under the Wainwright/Coleman test,

errors on the part of defense counsel in the post-conviction proceedings do not qualify as "cause"
to excuse a procedural default, thus barring such procedurally defaulted claims from being heard

in federal courts. Coleman, 501 U.S. at 754. In Martinez, the Supreme Court adopted a "narrow
exception" to the rule adopted in Coleman. Martinez, 132 S. Ct. at 1315. This "narrow
exception" provides that "[ijnadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner's procedural default of a claim of ineffective

assistance at trial." Id. The Martinez exception is an equitable, not a constitutional rule, and, as
the Fourth Circuitnoted in its Order remanding this case [Doc. No. 91], quoting Trevino v. Thaler,

133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), a claim falls within the Martinez exception where:
(1) the claim of'ineffective assistance of trial counsel' was a 'substantial' claim;
(2) the 'cause' consisted of there being 'no counsel' or only 'ineffective' counsel
during the state collateral review proceeding; (3) the state collateral review
proceedingwas the 'initial' review proceeding in respect to the 'ineffectiveassistance-of-trial-counsel claim'; and (4) state law requires that an 'ineffective

assistance of trial counsel [claim]... be raised in an initial-review collateral
proceeding.'
Tevino, 133 S. Ct. at 1918 (quoting Martinez, 132 S. Ct. at 1318) (emphasis original).
Imbedded in this Martinez formulation are multiple unsettled issues. With respect

the "substantial claim" requirement, it is unclear how the facts are to be viewed for the

purpose of determining whether a claim is "substantial," that is, whether a test akin to
that applicable to summary judgment applies or whether the Court may weigh the
evidence. It is also unclear whether the "substantial claim" standard of proof, or a higher

or lower standard, applies to the "cause" prong of the Martinez test that requires that state
habeas counsel was "ineffective." Likewise unclear are what "prejudice" showings are

required, given that (1) within the context of a Martinez ineffective assistance of counsel
("IAC") claim, the Strickland standard applies to both whether trial counsel was

ineffective (for the purpose of determining whether the IAC claim is "substantial") and
also whether state habeas counsel was ineffective (for the purposes of determining
whether the "cause" prong of the Martinez analysis is satisfied). Unsettled in this regard
is whether the Strickland prejudice prong applicable to the "cause" prong of the Martinez
analysis is based on the prospects of a different result in the state court habeas
proceedings or the trial court proceedings, or both. It must also be remembered, the

Martinez exception applies only to establishing the "cause" prong of the Coleman "cause

and prejudice" test, so that it would appear that once the "cause" prong of the Martinez

test is satisfied, a federal habeas petitionermust still satisfy the "prejudice" prong of the

Wainwright and Coleman test; and the question arises whether that showing of prejudice

imposes any additional evidentiary showing.2
As to the requirement that a petitioner make a showing that his defaulted claim is
"substantial," we know from Martinez that a claim is "substantial" if it has "some merit."

Martinez, 132 S. Ct. at 1318-19. In adopting that standard, the Court in Martinez referenced

generally the standards for issuing certificates of appealability, as set forth in Miller-El v.

Cockrell, 537 U.S. 322,123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).3 Stated otherwise, aclaim is
"insubstantial" if "it does not have any merit or is wholly without factual support." Martinez,
132 S. Ct. at 1319. Based on this explanation and reference in Martinez, it appears clear that the

required showing of a "substantial claim" is simply a preliminary filter, with a standard of proof
significantly lower than for success on the merits, used solely for determining whether the Court
should proceed further to a final determination of the merits of the claim, with, as warranted, the

2Compounding the landscape further is that the Supreme Court has adopted somewhat different
articulations of "prejudice" for the purposes of the Strickland standard and the
Wainwright/Coleman standard. Compare Strickland v. Washington, 466 U.S. 668, 694, 104 S.
Ct. 2052,2068, 80 L. Ed. 2d 674 (1984) (a petitioner "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome."); with Murray v. Carrier, 477 U.S. 478,494, 106 S. Ct. 2639, 2648, 91 L. Ed. 2d 397
(1986) ("The habeas petitioner must show 'not merely that the errors at... trial created a

possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.'") (quoting U. S. v. Frady, 456 U.S. 152,
170, 102 S. Ct. 1584,1596, 71 L. Ed. 2d 816 (1982)).

As the Supreme Court explained in Miller-El, "[a] petitioner makes a 'substantial showing'[for
the purposes of a certificate of appealability] when he demonstrates that his petition involves
issues which are debatable among jurists of reason, that another court could resolve the issues
differently, or that the issues are adequate to deserve encouragement to proceed further." MillerEl, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542
(2000)). In determining whether a certificate of appealability should be issued, the Court is
directed to conduct an "overview of the claims in the habeas petition and a general assessment of
their merits." Miller-El, 537 U.S. at 336. However, a court should not decline to issue a

certificate "merely because it believes the applicant will not demonstrate an entitlement to
relief." Id. at 336-37.

development of a more extensive record or an evidentiary hearing. Nevertheless, the Court
concludes that in making that determination, a court may consider the weight and reliability of
the evidence presented. Based on the formulation in Martinez, and within the context of a
defaulted IAC claim, the Court also concludes that the "substantiality" showing requirement

applies to both prongs of the Strickland test applicable to whether state habeas counsel was

"ineffective." See Clabourne v. Ryan, 745 F.3d 361, 376 (9th Cir. 2014) (holding that, with
respect to a Martinez claim pertaining to the ineffectiveness of state habeas counsel, a petitioner
must make a "substantial" showing with respect to both the performance and the prejudice
prongs of the Strickland standard); cf. Detrich v. Ryan, 740 F.3d 1237,1245-46 (9th Cir. 2013)

(en banc) (Fletcher, J., plurality) ("a prisoner need show only that his PCR [post-conviction
relief] counsel performed in a deficient manner" and "need not show actual prejudice resulting
from his PCR counsel's deficient performance, over and above the required showing that the trial
counsel IAC claim be "substantial" under the first Martinez requirement.").
With respect to "prejudice," the Court concludes that Petitioner must also make the

required "substantiality" showing with respect to the probability of a different result (1) with

respect to trial court proceedings as to his trial counsel IAC claim; and (2) with respect to state

habeas proceedings as to his claim that state habeascounsel was "ineffective." Finally, the Court

concludes that the "prejudice" prong of the Wainwright/Coleman "cause and prejudice" test is

satisfied by a showing that the petitioner's underlying claim is a"substantial" one.4 With these

4In reaching these conclusions, the Court has essentially adopted the position as stated in
Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014). The Court has concluded that prejudice must
be shown in terms of a likely different result in state habeas proceedings in order to, among other
reasons, remove incentives for state habeas counsel to not raise issues in their state habeas

petitions, with the hope of avoiding any perceived unfair, limited or onerous restrictions on post
conviction review and the development of a post-conviction record as well as the highly
deferential federal review of any state court findings of fact that would result from that process.

issues addressed, the Court will consider each of Petitioner's alleged Martinez claims set forth in
his Amended Petition.

Claim XI: Voluntary Intoxication

Gray alleges his state trial counsel were ineffective for failing to present, at both the guilt
and sentencing phases of his trial, evidence supporting the defense that he was so intoxicated at

the time of the Harvey murders that he was incapable of deliberation and premeditation.

Petitioner further alleges under Martinez that his state habeas counsel were ineffective in failing
to assert this underlying IAC claim in state habeas proceedings. In order to make the required
showing under Martinez, Gray must demonstrate that: (1) there was a "defaulted claim"; (2) the
claim of ineffective assistance of trial counsel was a "substantial claim; and (2) there is "cause"
for the default, in that that his state habeas counsel were "ineffective" under Strickland. See
Martinez, 132 S. Ct. at 1315-1320.

As to Claim XI, based on Gray's alleged voluntary intoxication, the parties are in

agreement that trial counsel failed to assert a defense of voluntary intoxication during the guilt
phase, his state habeas counsel failed to assert the ineffectiveness of trial counsel on this basis,

and to this extent, this claim of ineffectiveness of trial counsel is a "defaulted claim" cognizable
under the "narrow exception" of Martinez. The parties appear to otherwise part company on all
other issues associated with this claim under Martinez, including (1) whether Gray's IAC claim

based on trial counsel's failure to raise the defense of voluntary intoxication during the guilt
phase is a "substantial" claim and whether state habeas counsel was "ineffective" when it did not

raise that IAC claim in state habeas proceedings; and (2) whether Gray's IAC claim based on

trial counsel's failure to present Gray's voluntary intoxication in mitigation during the penalty
phase is, in fact, a defaulted claim cognizable under Martinez, since trial counsel did raise with

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the jury during the penalty phase Gray's drug use at the time of the murders, and state habeas

counsel raised in state habeas proceedings trial counsel's ineffectiveness during the penalty

phase based, in part, on how Gray's drug use was presented to the jury and the Supreme Court of
Virginia ruled on that contention on the merits.
A. Whether Gray's IAC Claim Based on Trial Counsel's Failure to Raise a
Voluntary Intoxication Defense is a "Substantial Claim"

In order to establish that a claim of ineffective assistance by state trial counsel is
"substantial," a "prisoner must demonstrate that the claim has some merit." Martinez, 132 S. Ct.

at 1318.5 This means that the claim has some legal and factual support. Mat 1319. For this
reason, the inquiry into whether a petitioner's IAC claim is "substantial" is inextricably bound up
with whether he has made the necessary showing under the Strickland standard that (1)
"counsel's performance was deficient," and (2) "that the deficiency prejudiced the defense."
Kelly, 650 F.3d 477, 493 (2011) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527,

156 L.Ed.2d 471 (2003)); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). For the

purposeof obtaining final relief with respect to an IAC claim, this two-prongStrickland analysis
imposes a "high bar" and courts must assess trial counsel's efforts with "scrupulous care, lest

intrusive post-trial inquirythreaten the integrityof the very adversary process the right to counsel
is meant to serve." Kelly, 650 F.3d at 493 (quoting Harrington v. Richter, 131 S. Ct. 770, 788,
178 L.Ed. 2d 624 (2011)).

5In explaining how courts are to review potential claims under Martinez, the Supreme Court
explained: "When faced with the question whether there is cause for an apparent default, a State
may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not
have any merit or that it is wholly without factual support, or that the attorney in the initialreview collateral proceeding did not perform below constitutional standards." Martinez, 132 S.
Ct. at 1319. For this reason, the Court has first considered this prong of the Martinez analysis.

1. Performance of Trial Counsel under Strickland

The "performance prong" ultimately requires a showing that counsel's representation fell
below "an objective standard of reasonableness." Wiggins, 539 U.S. at 511; Richardson v.

Branker, 668 F.3d 128,139 (4th Cir. 2012) (quoting Strickland, 466 U.S. at 687-88). In making
that determination, a court "must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." Richardson, 668 F.3d at 139 (quoting
Strickland, 466 U.S. at 689). In fact, Gray must show "that counsel made errors so serious that

counsel was not functioning as the counsel guaranteed ...by the Sixth Amendment." Harrington,
131 S.Ct. at 787 (internal quotation marks omitted) (citing Strickland, 466 U.S. at 687).
Importantly, the Court's deferential assessment of counsel's performance must "include [] a

context-dependent consideration of the challenged conduct as seen from counsel's perspective at
the time...." Wiggins, 539 U.S. at 523 (internal quotation marks omitted) (quoting Strickland,
466 U.S. at 688-89), quotedin DeCastro v. Branker, 642 F.3d 442,450 (4th Cir. 2011). As the
Fourth Circuit has summarized the applicable law:
... [W]e must resist the temptation to "second-guess counsel's assistance after
conviction or adverse sentence" and make "every effort... to eliminate the
distorting effects of hindsight." Indeed, we must review with "scrupulous care,
lest intrusive post-trial inquiry threaten the integrity of the very adversary process
the right to counsel is meant to serve."

Decastro, 642 F.3d at 450 (internal citations omitted) (quoting Harrington, 131 S. Ct. at 788);
see also Strickland, 466 U.S. at 689). These admonitions are particularly applicable where an

IAC claim is based on the trial strategy that trial counsel selected after reasonable investigation
and consideration:

[t]here are... countless ways to provide effective assistance in any given case.
Even the best criminal defense lawyers would not defend a particular client in the
same way. Rare are the situations in which the wide latitude counsel must have

been making tactical decisions will be limited to any one technique or
10

approach.... Counsel was entitled to formulate a strategy that was reasonable at
the time and to balance limited resources in accord with effective trial tactics and

strategies.

Harrington, 131 S.Ct. at 788-89 (internal quotation marks and citation omitted), quoted with
approval in Decastro, 642 F.3d at 451. Relief based on unsuccessful strategic choices is
particularly difficult to obtain:

[Strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particularinvestigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel's judgments.

Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at 690-691). In the end, "...which

strategy might have been best is not the pertinent inquiry; instead, we ask whether the strategy
counsel chose was objectively reasonable." Decastro, 642 F.3d at 451. With these standards for

granting final relief in mind, the Court has considered whether Gray has made a showing that his
IAC claim is a "substantial" claim.

Gray's trial counsel explained their choice to not present any evidence supporting a
voluntary intoxication defense as follows:

We made a determination that any claim of intoxication by drug use was not the
best defense available. Gray insisted repeatedly that PCP could not be to blame.
He knew what he was doing. Any argument that Gray acted because of the
influence of drugs was simply not supported by what the defendant told us. A
defense of intoxication would detract from our sentencing evidence of sexual
abuse.

MTD, Exhibit B, 8 ^ 23. The issue here reduces to whether Gray has demonstrated as

"substantial" his claim that trial counsel's affirmative, strategic decision not to present evidence
of voluntary intoxication was objectively deficient.
11

In his Amended Petition, Gray argues that his trial counsel had the reports of"three

mental health experts who evaluated Gray [and] notified trial counsel of Gray's substance abuse

and intoxication at the time of the crimes." Amend. Pet. ^ 258. The first is by Dr. Evan Nelson,
who issued a report prior to trial stating that, "Mr. Gray did admit that during most of these

crimes he was voluntarily intoxicated to some degree on 'love boat,' street slang for marijuana
laced with a substance" and that "he may very well have been voluntarily intoxicated." Nelson
Report at 11,12. The second expert mentioned by Petitioner is that of Dr. Bruce Cohen, who
indicated that:

Mr. Gray does appear to have been intoxicated with marijuana, phencyclidine
(PCP), and likely ecstasy from the time that he drove from Pennsylvania to
Virginia (on December 23, 2005) through the time of his arrest (and January 7,
2006). These chemical agents, particularly PCP, can significantly impair
judgment and impulse control. Chronic users of PCP tend to describe feelings
motivated to continue to use this drug despite an awareness of its adverse side
effects due to its powerfully reinforcing psychological effects. These typically
involve a combination of (1) feeling emotionally "numbed" (useful in blunting
any feelings of sadness or anxiety) and (2) feeling strong, powerful, and/or
invulnerable. Mr. Gray does describe having experienced such sensations in the
context of his substance use, including during the period of time surrounding the
present offenses.

Cohen Reportat 4. Finally, Gray alsotold Dr. Mark Cunningham that he was using multiple
drugs at the time of the capital offense. State Pet. App. at 462. There are also jail records from

the staff psychiatrist at the Richmond City Jail, Dr. Richard Curtis, that indicatethat during his

incarceration at that facility, beginning on January 10,2006, approximately 10 days afterthe
Harvey murders, and continuing through at least January 24,2006, Gray was hearing voices,
suffering from hallucinations and displayed objective signs of psychosis, for which Dr. Curtis
prescribed Risperdal, a known antipsychotic drug. Affidavit of Dr. Curtis at 13 ^[5. Gray also

admitted to the Richmond Police that he was on PCP the day of the murders. Amend. Pet. ffl[
257,260.

12

Based on this evidence, Gray argues that his trial counsel unreasonably failed to

investigate further and present evidence on Gray's PCP use and, for this reason, trial counsel's

strategic choices are not entitled to deference. See State v. Johnson, 143 Md. App. 173 (2002)
(ineffective assistance of counsel for failure to adequately investigate PCP induced psychosis);
People v. Popoca, 615 N.E.2d 778 (111. App. Ct. 1993) (ineffective assistance of counsel for

failing to interview paramedics and hospital personnel and prepare expert testimony to support a
defense of voluntary intoxication); In re Sixto, 744 P.2d 164 (Cal. 1989) (ineffective assistance

of counsel for failure to adequately investigate defendant's intoxication on alcohol and PCP).
Gray further claims that his counsel's ineffectiveness extended to simply accepting his

statements as expressions of legal responsibility without properly counseling him concerning
what legal significance his intoxication may have had, suggesting that Gray may have been

simply expressing remorse.6
In response, the Warden points to Dr. Evan Nelson's report, in which he reported that
Gray "insisted he was never so intoxicated that he felt it destroyed his ability to understand what
was happening." Doc. No. 107-2 at 11. Respondent also points to the statutory mandate issued
to Dr. Bruce Cohen, pursuant to Virginia Code § 19.2-264.3:1(C), that he opine as to "whether
there are any other factors in mitigation relating to the history or character of the defendant or the

defendant's mental condition at the time of the offense." Dr. Cohen subsequently reported that
Gray "denied that as a result of his drug use either that he was unaware of his actions at the time

6In this regard, Gray relies on Guideline 10.7 of the ABA Guidelines, which states that "the
investigation regarding guilt should be conducted regardless of any admission or statement by
the client concerningthe facts of the alleged crime, or overwhelming evidence of guilt, or any
statement by the client that evidence bearing upon guilt is not to be collected or presented."
Amend. Pet. n. 3. He also points out that Guideline 10.7 has been "cited with approval by the
United States Supreme Court in Rompilla [v. Beard, 545 U.S. 374 (2005)]; Wiggins [v. Smith,
539 U.S. 510 (2003)], and other cases...." Id.
13

ofthe present offenses or that he was experiencing psychotic symptoms (such as hallucinations

or delusions) at the time of these offenses." Doc. No. 107-3 at 4.7
In evaluating whether Gray's IAC claim is "substantial," the Court must assess what
information trial counsel had available to them, what additional investigation may have
established, and what expert testimony they would have been in a position to present that Gray
was voluntarily intoxicated to such an extent that it constituted a legal defense as to guilt or as

mitigation. In this regard, there is no dispute that trial counsel were aware that Gray had
ingested intoxicating substances around the time ofthe murders, but that Gray repeatedly denied,
to both them and the appointed experts, that he was unaware of what he was doing as a result of
the drugs. There is also no dispute that trial counsel was faced with Gray's multiple statements
to law enforcement officials that reflected on their face detailed recollections of not only the

Harvey murders but also the murder of his wife, which occurred in Pennsylvania approximately
two months before the Harvey murders, and the Tucker family murders that occurred on the

same day as the Harvey murders. Gray had also demonstrated the ability to engage in rather

extensive travel during the period surrounding the Harvey murders, including from Pennsylvania
to Northern Virginia, from Northern Virginia to Richmond, and finally from Richmond to
Philadelphia, where he was arrested.

In Reid v. True, 349 F.3d 788 (4th Cir. 2003), the Fourth Circuit succinctly statedthe
standard for and effect of voluntary intoxication in the Commonwealth:

UnderVirginia law, voluntary intoxication does not excuse any crime. See Wright
v. Commonwealth, 234 Va. 627, 363 S.E.2d 711 (1988). "However, when a
person voluntarily becomes so intoxicated that he is incapable of deliberation or

Submitted with Gray's Opposition to the present Motion is an affidavit from Dr. Nelson, in

which Dr. Nelson states that he was "never appointedto evaluate whether Mr. Gray was so
intoxicated that he lacked the capacity to form the intent to commit a premeditated murder" and
that his report, as a result, did not contain such an opinion. Opp. Ex. A.
14

premeditation, he cannot commit a class of murder that requires proof of a
deliberate and premeditated killing." Id. In determining whether the evidence
supports a voluntary intoxication defense, Virginia courts look to the defendant's
behavior before and after the offense. See, e.g., Giarratano v. Commonwealth,
220 Va. 1064, 266 S.E.2d 94, 99 (1980). Relevant behaviors include attempts to
conceal the crime, see id. at 100 (noting that defendant killed second person in
order to conceal first murder); a lapse of time between ingestion of intoxicants
and the crime, see Hedrick v. Warden, 264 Va. 486, 570 S.E.2d 840, 851 (2002);
whether the conduct of the defendant was "planned and purposeful," id.; and
whether the defendant was able to engage in complex behaviors such as operating
an automobile, see Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522, 536
(1998), rev'd on other grounds, 527 U.S. 116,119 S.Ct. 1887, 144 L.Ed.2d 117
(1999).
Reid at 800.

The record reflects that trial counsel were aware of and considered Petitioner's drug use

in consultation with the various experts. They requested, received and analyzed expert reports
which spoke to Gray's drug use throughout his life, including around the time of the murders and
consulted with attorney David Bruck of Washington and Lee School of Law, who recommended

a pharmacologist. See Bruck Aff, SA at 35 ^[3. Counsel inquired of Gray about his drug use, as

did the court-appointed experts who interviewed Gray, and counsel developed their trial strategy
in light of the information they obtained from Gray and the appointed experts. Rather than

neglecting to consider such a defense and rejecting it out ofhand, trial counsel gathered the
available information and made a tactical decision to not press such a defense or to use it in

mitigation. There is no evidence that trial counsel labored under an inaccurate understanding of

the applicable law, but rather concluded, based on everything they knew, thatthey would simply
not be able to support, based on the facts and Gray's own admissions, a voluntary intoxication
defense. In that regard, counsel were aware that Petitioner had provided to the police detailed

8For this reason, the posture ofthis case is different than that presented in Gray v. Branker, 529
F.3d 220 (4th Cir. 2008), where "there was simply no consideration of whether a defense based
on psychiatric evidence might be a strategy worth exploring." Id. at 231.
15

descriptions of his activities prior to, during and following the Harvey murders, including the
coordinated and horrific nature of Gray's crimes. See Gray v. Com., 274 Va. 290,295-298, 645
S.E.2d 448,452-454 (2007), where the Virginia Supreme Court found during Gray's appeal,

based in part on Gray's detailed signed confession, that Gray entered the Harvey's home with a
deadly weapon, bound and gagged his victims, made an effort to conceal his crime by setting fire
to the house in which he had committed the murders, and then murdered one of his accomplices
ostensibly to limit the number of individuals who knew of the crime.

Petitioner argues that it was inherently unreasonable for his trial counsel to rely on his

statements that the drugs in his system did not prevent him from knowing and understanding

what he was doing.9 While Gray's statements could not reasonably end counsel's consideration
of Gray's drug use, and there is no evidence that it did, competent trial counsel could not ignore
or discount the operative, practical effect of those statements on any voluntary intoxication
defense; and it would have been foolhardy for trial counsel to simply ignore the fundamental

9In support ofthis position, Gray cites to Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v.
Smith, 539 U.S. 510 (2003); and Williams v. Taylor, 529 U.S. 362 (2000). In Rompilla, the
Supreme Court referred to the ABA Standards as a "guide to determining what is reasonable," in
particular looking to 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.) for the
proposition that "The duty to investigate exists regardless of the accused's admissions or
statements to the lawyer of facts constituting guilt." Rompilla at 387. In that case, Petitioner's
counsel had completely failed to examine a prior victim's testimony more than a day before
sentencing and failed to look at any other materials in the file for the prior conviction. Id. at 383387. In Wiggins, the Supreme Court found it unreasonable for Wiggins' counsel to decide not to
expand their investigation of petitioner's life history for mitigating evidence beyond the
presentence investigation report and the department of social services records, because such lack
of investigation fell short of prevailing professional standards. 539 U.S. at 524. In Williams, the
Supreme Court found that Williams' counsel had been ineffective because they did "not begin to
prepare for [the guilt] phase of the proceeding until a week before the trial. They failed to
conduct an investigationthat would have uncovered extensive records graphically describing
Williams' nightmarish childhood, not because of any strategic calculation but because they
incorrectly thought that state law barred access to such records." 529 U.S. at 395. The Court does
not find any of the cited cases to be comparable, on their facts, to those in this case.
16

contradiction that any reasonable fact finder would see between these statements and a defense

that Gray was unable to form criminal intent based on voluntary intoxication. Moreover, given
that the voluntary intoxication defense is, to a large degree, based on a defendant's inability to
form the required intent at the time of the offense conduct, trial counsel could reasonably
conclude that Gray's own assessment of his mental state at the time of the Harvey murders

would likely be viewed by the jury as the most probative evidence, if not the only source of
probative evidence, concerning whether or not he was aware of what he was doing at the time of
the Harvey murders. Based on the evidentiary realities of the case, trial counsel could
reasonably reject voluntary intoxication as a viable defense.

Nor is there any reason to conclude that trial counsel was deficient in failing to conduct
some additional investigation into Gray's drug use or find additional experts. Gray had been
appointed three experts during trial proceedings, none of whom was in a position, based on their
evaluation and interviews with Gray, to provide the opinions that Petitioner claims were

required. Moreover, the credibility of any helpful opinions along the lines that Gray now
describes would have been compromised by his statements to those experts. It was for this

reason that trial counsel was forced to use Dr. Lisak, who could, and did, provide helpful

testimony during the sentencing phase, albeit hypothetically and without the benefit of actually
evaluating Gray, but without exposing the jury to Gray's fundamentally inculpatory statements
as to his mental state at the time of the Harvey murders. The record does not reflect what efforts,

if any, were made to ascertain the exact nature, volume and timing of drug use relative to the
Harvey murders, but there is nothing in the record that suggests that such information was

available. In fact, to this day, there is no real information from which it could be reasonably
determined to what extent Gray was affected by any drug use at the time of the Harvey

17

murders.10 At most, trial counsel was in a position to present through Gray's trial experts the
kinds of generalized opinions now offered by Gray's experts appointed in these proceedings that drugs such as PCP can have profound effects - but none of these experts were, or are now, in
a position to opine with any degree of certainty that Gray was in fact voluntarily intoxicated to

the extent required for a defense of voluntary intoxication at the time of the Harvey murders. For
these reasons, trial counsel could reasonably conclude that a voluntary intoxication defense was

not the best defense and that "[a] defense of intoxication would detract from our sentencing
evidence of sexual abuse." MTD, Exhibit B, 81) 23. Likewise, based on all of the facts, and the

limited time and resources available, trial counsel's determination that additional investigation
into this issue was not in their client's best interests was a strategic choice that fell within the

broad range of permissible professional judgments. These are precisely the types of decisions

counsel arerequired to make. Under Strickland, counsel are given "wide latitude" in "making
tactical decisions" and this Court gives such decisions "a heavy measure of deference" as
required. Strickland at 522, 589. For all these reasons, the Court finds and concludes that

Petitionerhas not shown that his claim that trial counsel was deficient in their representation
during the guilt phase is a "substantial" claim.

Nor has the Petitioner made such a showing with respect to the sentencing phase.
However, unlike Claim XI as it pertains to the guilt phase, there is a substantial question whether

Claim XI as it pertains to the sentencing phase is, in fact, a "defaulted claim." In this regard,
state habeas counsel, in both state habeas proceedings and in his original petition in this Court,

10 Significant in this regard isthat this Court appointed an expert investigator to, among other
things, collect information from lay witnesses regarding what intoxicating substances Gray in
fact ingested and in what amounts around the time of the crime; and Petitioner has been unable

to proffer any such information to the Court materiallybeyond what was already presented to the
Virginia state courts. See Doc. No. 132 (granting Gray's Motion for Appointment of
Investigator [Doc. No. 122]).
18

claimed that trial counsel was ineffective during the sentencing phase by, among other things,

not investigating and presenting evidence concerning Gray's drug use and how the jury should
view his moral culpability in light of that drug use. For example, state habeas counsel

specifically argued to the Supreme Court of Virginia the following concerning trial counsel's
failure to present evidence concerning Gray's drug use:

The prosecutor's presentation of [Gray's statement to police] [] also concealed
from jurors that Gray told police that he did not remember details of the crimes
because he was high on a combination of marijuana cigarettes dipped in PCP and
ecstasy when the crimes were committed, that he spent many nights trying to
recall answers to details of the crimes, that he did not remember what happened to
each of the Harvey family members, that his memory was very fuzzy about what
happened at the Harvey's and Tucker's homes, and that he had to ask police
officers if any of the crime victims were black people. ... These facts would have
raised reasonable suspicions in the minds ofjurors about relying upon [Gray's]
statement as a primary basis for determining relative culpability between
Dandridge [Gray's accomplice] and Gray....
... Gray's account [in his statement] and the questionable reliability of the written
statement based on [his accomplice's] statement also would have been supported
by scientific evidence about the psychological effect of PCP use. Gray's inability
to recall details of events while under the influence of PCP ("phencyclidine") can
be explained by the anesthetic properties ofthe drug. PCP works like a
dissociative anesthetic which has its primary effects on the brain's cortex and
impairs the functioning of brain cells. The brain cells most impaired by PCP in

humans are in the frontal cortex and hippocampus, areas required for learning and
memory....When inhibited by PCP, these cells do not function and learning and
memory shortage does not take place. An individual using PCP becomes
amnestic, impairing both the ability to think at the time of intoxication and the
ability to later recall the events.

State Pet. at 10 -12. Approximately twenty pages of Gray's 50 page state habeas petitionwas
devoted to his Claim IX that trial counsel was ineffective at sentencing. Within the context of
that claim, state habeas counsel argued:

At the sentencing phase of trial, counsel presented the limited testimony of three
lay witnesses, and three experts, none of whom explained how Gray's life
experiences affected his personal and moral development. Counsel failed to
present testimony from 20 easily available witnesses who could provide a
comprehensive and accurate picture of Gray's life. Counsel failed to present
19

easily available, objective documentary evidence corroborating testimony and
other evidence. The appointed a defense expert could have used this evidence to
explain the effect of Gray's life experiences on his personal and moral
development. By failing to recognize, develop and present several vital
components of this evidence, counsel failed to provide Gray with effective
assistance of counsel.

For example, counsel failed to give jurors and accurate context to Gray's history,
behavior and opportunities because they did not present accurate evidence ofthe
poverty, chaos, neglect and toxic environment (including consistent exposure to
drugs and violence in the community) in which Gray's development occurred....
Counsel for Gray presented the fact that Gray used drugs growing up, and at the
time of the crime, and the jury heard about Gray's to drug convictions. There was
abundant additionaltestimony and documentary evidence available that Gray was
addicted to drugs and alcohol, including PCP, his entire life, as a child, and as an
adult.

Without expert testimony to explain what precipitated the drug use and the impact
of the drug use on the defendant's moral culpability and behavior, the prosecution
attacked Gray's failure to show any connection between physical and sexual
abuse he suffered and his drug-behavior. Prosecutors claimed the Gray's
involvement with drugs was not related to his prior abuse and trauma, but the
product of greed... .The presentation of drug use without expert testimony was
ineffective assistance.

Id. at 28-29,41 (internal citations omitted). State habeas counsel also argued concerning the lack

of needed expert testimony to link, among other things, Gray's use of drugs to his behavior and
moral culpability:

This [lack of needed expert opinions regarding mitigating evidence such as
Gray's background and drug use from the experts whose reports were included at
the sentencing phase] left Gray's limited, but potentially powerful - though
incomplete - evidence of sexual abuse and drug use open to misunderstanding
and misinterpretation. Indeed the prosecution summarized the lack of expert
mental health testimony by arguing that "[t]hey have absolutely no explanation
for Ricky Gray did."...
[Dr.] Cunningham could have provided expert testimony on Gray's use of PCP
and other drugs at the time of the offense, to show how studies link such use

individuals such as great a violent behavior and moral responsibility.

20

Id. at 45-46, 48.

In his original Petition in this Court, state habeas counsel raised the same Claim IX as
presented in state proceedings and also attacked the determination by the Supreme Court of
Virginia that his IAC claim satisfied neither the "performance" nor the "prejudice" prong of the
Strickland test. See Doc. No. 18, Claim IX at 79-97. Gray's Claim XI differs from his

previously asserted Claim DC only in that it is framed exclusively 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 warranted only on the grounds of "vileness" and only as to the two
Harvey children.

The different formulations notwithstanding, the Court finds that Petitioner's claim XI is,
in substance, essentially the same as his previously asserted Claim IX to the extent that it relates

to the sentencing phase and is therefore not a defaulted claim. Alternatively, the Court concludes

that, even were this Claim XI deemed a defaulted claim with respect to the sentencing phase, for
the reasons stated above with respect to the guilt phase, the Court finds that Petitioner has not

made an adequate showing that his claim that trial counsel was deficient in their performance
during the sentencing phase is a "substantial" one.
2. Prejudice Resulting from Trial Counsel's Performance under Strickland

Assuming that a petitioner can satisfy the "difficult standard" of the performance prong,
the petitioner still must show that his claim of "prejudice" is a substantial one. See Richardson v.

Branker, 668 F.3d 128,139-140 (4th Cir. 2012) ("...to obtain relief the petitioner must also
show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.'") (quoting Strickland, 466 U.S. at 694). A

demonstration of prejudice sufficient to warrant final relief requires a substantial, not just

21

conceivable, likelihood of a different result. Id. (quoting Harrington, 131 S.Ct. at 792)

(emphasis in opinion). See also Kelly, 650 F.3d at 493 ("the prejudice inquiry centers on
whether there is a reasonable probability that, absent [counsel's] errors, the sentencer... would

have concluded that the balance of aggravating and mitigating circumstances did not warrant

death.") (quoting Williams v. Ozmint, 494 F.3d 478, 484 (4th Cir. 2007) (internal quotations
omitted); see also Wiggins v. Smith, 539 U.S. 510, 537 (2003) (finding that the prejudice prong is
met if "there is a reasonable probability that at least one juror would have struck a different

balance."). Petitioner must therefore show that his claim of prejudice for the purposes of his
Martinez claims is "substantial" with respect to that high standard applicable to any final relief.
For the above reasons stated with respect to the "performance" prong of the Stricklandanalysis
for the purposes of Petitioner's substantiality showing as to Petitioner's trial counsel IAC claim,

the Court concludes that Gray has failed to make the required showing of "prejudice" under
Stricklandeither as to the guilt or sentencing phase.
In reaching this conclusion as to "prejudice," the Court has considered the affidavits of

the court-appointed experts.1' None ofthat evidence is sufficient to support a finding that Gray's

11 In support of his prejudice position, Gray provides the affidavit of Dr. Wilkie Wilson and Dr.
Herfkens, appointed by this Court. Dr. Wilkie Wilson states:
It is my opinion that Mr. Gray was under the influence of PCP at the time of these

crimes and that the use of PCP had a very significant impact on his behavior at the
time. It is further my opinion thatthe effects of PCP on his brain almost certainly
caused him to engage in violence that he might not otherwise have exhibited.
Wilson Aff. (Dec. 9,2013), SAat 11 fU. Gray also points to Dr. Wilson's description of the
effects of PCP on the brainand the fact that PCP "is well known as a drug associated with
extreme violence." Id. at 7 ^|12.

In her Report, Dr. Herfkens opines that:
22

claim is "substantial" with respect to the "prejudice" prong. Given the lack of specific evidence
concerning what drugs, in what amounts, were influencing Gray at the time of the Harvey

murders, there is, first, a substantial question whether these experts' opinions, as expressed in
their affidavits, would have been admissible at trial during the guilt phase. The Court recognizes
that trial counsel may have been able to elicit these types of opinions from the trial experts at the

penalty phase, but any favorable testimony, including testimony that may have related to the
issue of"vileness," would have likely been substantially undermined by Gray's statements to
those experts concerning the actual impact any drug use had on him, as well as his actions

before, during and after the Harvey murders. For these reasons, and even assuming that trial

counsel's performance was deficient, Petitioner has not made a sufficient showing that there was
a "substantial likelihood" that the jury would have recommended life in prison instead of the

death penalty, had trial counsel proceeded as Gray now claims was required.

Based on these test results, it is my opinion that in a chaotic situation, even when
not intoxicated, there is a reasonable likelihood that Mr. Gray would experience
significant impairment, such as focusing on non-relevant details, basing decisions
on incomplete or incorrect information, and reacting impulsively.
In addition, Mr. Gray's deficits would have been much more severe at the time of
the crime as the result of acute intoxication and stress. PCP intoxication has

profound behavioral implications, including irrational violence, psychosis, mania,
and an absence of physical pain. PCP also dramatically affects cognition, with
effects including impaired social cognition, working memory/attention, spatial
processing, and cognitive flexibility, all of which are associated with frontal
system functioning. The combination of PCP intoxication and mild cognitive
impairment, also associated with frontal system functioning, would likely have
caused marked disinhibition and devastatingly poor problem solving, which
would have been further exacerbated by his impaired ability to deal with stress as
the result of childhood trauma.

Herfkens Aff, SA at 3, H15, and 4, H17.

23

For the above reasons, the Court finds and concludes that Petitioner's claim of ineffective

assistance of trial counsel is not "substantial" within the meaning of Martinez.
B. The "Cause" Prong of Martinez as to Petitioner's Trial IAC Claim Based on
Failure to Assert Voluntary Intoxication as a Defense.

Petitioner alleges as "cause" for his defaulted Claim XI that state habeas counsel was

ineffectivein not claiming that trial counsel were ineffective by not asserting Gray's voluntary
intoxication either at the guilt or penalty phase of the trial.
1. Performance of State Habeas Counsel under Strickland

In his Amended Petition, Gray argues that state habeas counsel were "ineffective"

because, by theirownadmission, theynever filed or considered filing ClaimXI. Amend. Pet. ^|
255 ("State habeas counsel failed to even considerraising this claim, despite being aware of
evidence supporting it....[and] State habeas counsel have acknowledged that they have no
strategic explanation for their failure to investigate and raise this claim.") (citing Sheldon Aff.
SA at 381(5; Lee Aff. SA at 31-33 ffi[4-6). As discussed above, trial counsel were faced with

limited and difficult choices, and the strategic choices they made cannot be said to have been
unreasonable under the circumstances. For that reason, the Court cannot conclude that state

habeas counsel, when faced with the circumstances of this case, would have been deficient had

they affirmatively decided not to add an eleventh claim in Gray's state habeaspetitionbased on a

voluntary intoxication defense, particularly when a large portion of his statehabeas petition
presented some of the same points and issues that would have been presented in connection with

such a claim, butwithout the difficult proofissues associated with thatdefense. See Harrington,
131 S. Ct. at 788 (providing for a doubly heavy burden under § 2254(d) and Strickland to show

deficientperformance in the habeas context). Nevertheless, the Court recognizesthat state
habeas counsel claims they never considered such a claim, and for that reason, the Court will
24

assume, without deciding, that Petitioner has made a sufficient "substantiality" showing that state
habeas counsel's performance was deficient under Stricklandfor the purposes of the "cause"

prong of the Martinez analysis and will consider whether this assumed failure on the part of

Gray's highly experienced state habeas counsel caused any prejudice.12
2. Prejudice Resulting from State Habeas Counsel's Performance under Strickland

In assessing prejudice, the Court must consider whether the outcome of state habeas

proceedings would have been any different had Claim XI been asserted in those proceedings. As
discussed above, the Virginia Supreme Court saw no merit in Gray's IAC claims, including those
predicated on a failure to effectively present evidence of drug use; and the Court concludes that

there is no reason to think that the Virginia Supreme Court would have viewed an explicit
voluntary intoxication defense any differently. See e.g., Gray v. Warden, 281 Va. 303, at 306-07
(determining that "despite his statement that he was on PCP the day of the murders, petitioner
assured counsel that 'PCP could not be to blame' as petitioner 'knew what he was doing.'
Counsel made a tactical decision not to try to blame petitioner's actions on his use of drugs
because counsel decided that a defense of intoxication would detract from the best defense at

sentencing, which would be to focus on the abuse petitioner suffered as a child."); see also Gray
v. Com., 274 Va. 290, 298 (finding on direct appeal that "Gray described in detail how he and

Dandridge entered the Harveys' home and attacked the Harveys."); and Gray v. Warden, 281 Va.

303,306-307 (finding during its state habeas review that "despite [Gray's] statement that he was
on PCP the day of the murders, petitioner assured counsel that 'PCP could not be to blame' as

19

Gray points to that disclaimer as conclusive proof of deficient performance, but given the
exhaustive effort that state habeas counsel have devoted to post-conviction proceedings, their
failure to consider a claim for relief based on trial counsel's failure to assert a voluntary
intoxication defense can be viewed as highly probative of how competent habeas counsel would
have acted under the particular circumstances of this case.
25

petitioner 'knew what he was doing.' Counsel made a tactical decision not to try to blame
petitioner's actions on his use of drugs because counsel decided that a defense of intoxication

would detract from the best defense at sentencing, which would be to focus on the abuse

petitioner suffered as a child."); and Doc. No. 68 at 18-19 (referencing the state court's holding
that Gray's counsel's "failure to investigate the effects of PCP on his memory, which effects
would have called into question the statement that Gray gave to the police, satisfied neither the
'performance' nor the 'prejudice' prong of Strickland.").
For these reasons, Petitioner has failed to carry his burden to show that he suffered

prejudice resulting from state habeas counsel's failure to present the instant claim to the Virginia
Supreme Court.
Claim XII: Juror's Consideration of Extrinsic Evidence

Petitioner claims that state habeas counsel's failure to assert a claim that a trial juror was
subjected to outside influences during his deliberations constituted ineffective assistance of
counsel. See Amend. Pet. at 26-30. Here, however, Petitioner is not claiming that either trial

counsel or counsel during his direct appeal were ineffective in not asserting this Claim XII, but
rather, that state habeas counsel was ineffective. This claim is therefore not a defaulted claim

addressable under Martinez. First, the underlying issue, improper jury influence, is an issue that

procedurally could have been raised on direct appeal, and state habeas proceedings were not
Petitioner's first procedural opportunity to raise that claim. It is therefore a defaulted claim that

is outside the scope of Martinez. See Martinez, 132 S.Ct. 1309, 1315 (the narrow equitable
exception applies only to claims assertable for the first time in post-conviction initial review

collateral proceedings). For that reason, this Court's ability to review that claim is governed by
the "cause and prejudice" rule, as adopted in Wainwright and Coleman, under which the

26

negligence of state habeas counsel cannot constitute "cause." See Coleman, 501 U.S. 722, 754

("Attorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent
when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the
risk of attorney error.") (quoting Murray v. Carrier, 477 U.S. 478, 488). For these reasons,

Petitioner has failed to make the required showing under Martinez and this Court may not review
this claim XII.13
Claim XIII: Inadequate Mitigation Investigation

Petitioner's next claim is that trial counsel were ineffective in failing to conduct an
adequate mitigation investigation and that state habeas counsel were ineffective when they failed
to assert that claim in state habeas proceedings. In particular, Petitioner argues that, due to the

ineffectiveness of state habeas counsel, the state court was prevented from considering critical
informationset forth in new affidavits filed in these proceedings. The particular mitigation
evidence that Petitioner claims should have been presented includes that which would provide a
"complete picture of the physical, sexual, and emotional abuse perpetrated on Gray; the
profoundly chaotic and dysfunctional environment in which he was raised; and his father's abuse

of numerous family members in addition to Gray himself." Amend. Pet. K293.
Trial counsel did present mitigation evidence concerning Gray's history of abuse at the
sentencing phase and both the Virginia Supreme Court in its habeas review and this Court

previously considered and dismissed Petitioner's Claim IX (in both the state petition and original
federal petition) based on the scope and nature of that mitigation evidence. See State Pet. at 2849; and see Gray v. Warden, 281 Va. 303, 315-319 ("Petitioner contends that counsel failed to
1 *\

At the hearing , Petitioner appeared to concede that this claim does not fall within the current

scope of Martinez, as currently applied, but argues that "the reasoning of Martinez applies
equally"to this claim since a prisoner would need effective assistanceto bring a claim ofjuror
misconduct and because such a claim is a fundamental constitutional claim. .
27

present evidence of the 'poverty, chaos, neglect and toxic environment' in which petitioner was

raised."); see also Doc. Nos. 18 at 79-97, 68 at 32-38. In particular, this Court indicated that the
following mitigation evidence was put before the jury:
Gray's counsel offered mitigation evidence. Gray's mother, Barbara Moten,
testified to Gray's abusive childhood. Id. at 300. She testified that his father,
Ellsworth, spanked him with a "horse strap" and otherwise beat him when the
school reported Gray had misbehaved, when he wet the bed, and when Gray's
siblings blamed him for things that happened around the house. Id. When Gray's
mother had to move because of her job with the Army, Gray, then age nine,
stayed with Ellsworth, who became a cocaine addict while Gray's mother was
gone. Id', J.A. 1506-07. Ellsworth's other son and Gray's halfbrother, Fitzgerald,
sexually abused Gray during this time period. Gray I, 214 Va. at 301. Gray's
sister, Ava, testified about "repeated instances of sexual abuse upon her and Gray
by Fitzgerald," with Gray "being victimized by Fitzgerald when he was only four
years old." Id. Ava described the molestations as "a regular thing" over the course
of seven years. Id. Ava also testified that Gray turned to using drugs, specifically,
marijuana, cocaine, and PCP, when he was just thirteen years old. Id.
Gray also presented the testimony of Dr. David Lisak, a psychologist and expert
on the relationship between childhood abuse and later violent behavior. Id. Dr.
Lisak opined generally, via video deposition, on the effects of early childhood
abuse, and although he did not personally examine Gray, Dr. Lisak opined on the
possible effects on Gray of his childhood experiences, as described to him by
Gray's counsel. See State Pet. App. 354-69. Gray also presented the opinions of
Dr. Mark Cunningham, a clinical and forensic psychologist, who testified that
Gray would make a positive adjustment in prison, free from serious violence,
pointing out that Gray had earned his GED during a previous period of
incarceration. Grayl, 214 Va. at 301.

Doc. No. 68 at 5-6. The Court also declined to consider the affidavits submitted in support of
Claim IX, citing Cullen v. Pinholster, 131 S.Ct. 1388,1398 (2011). In short, trial counsel
investigated and presented to the jury Petitioner's past abuse in mitigation, and trial counsel's
performance in that regard was reviewed during state habeas review. This claim was also
presented to this Court in Petitioner's first federal Petition also as Claim IX. This claim has

therefore not been procedurally defaulted and the merits ofthe claim as a basis for habeas relief
have already been adjudicated by both state and federal court.

28

Claim XIV: Cumulative Nature of Trial Counsel's Deficient Performance

Petitioner asserts that he was prejudiced by the combined errors of trial counsel, and that
there is a reasonable probability that, absent the cumulative effect of these errors, the outcome of

Petitioner's case would have been different, citing for support UnitedStates v. Russell, 34 F.
App'x 927 (4th Cir. 2002) (finding that "cumulative error analysis applies where there are two or

more actual errors; it does not apply to the cumulative effect of non-errors") (citing Moore v.
Reynolds, 153 F.3d 1086,1113 (10th Cir.1998)). However, IAC claims must be assessed

individually, not collectively. See Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998) ("it has

long been the practice of this Court individually to assess claims under Strickland v. Washington,
466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)...To the extent this Court has not

specifically stated that ineffective assistance of counsel claims, like claims of trial court error,

must be reviewed individually, rather than collectively, we do so now."). Moreover, "legitimate
cumulative-error analysis evaluates only the effect of matters actually determined to be
constitutional error, not the cumulative effect of all of counsel's actions deemed deficient." Id.,

163 F.3d at n. 9. As the Court has concluded that none of Gary's claims have merit, no

cumulative analysis is necessary; and no cumulative analysis would therefore result in a finding
of error or prejudice.
Conclusion

For the reasons stated above, the Court finds and concludesthat Petitioner has presented
no claims that would afford any relief under Martinez v. Ryan, 132 S. Ct. 1309 (2012).
Respondent's Motion to Dismiss [Doc. No. 152] will therefore be granted and Petitioner's
Amended Petition for a Writ of Habeas Corpus [Doc, No. 146] will be dismissed.
An appropriate Order will issue.

29

The Clerk is directed to forward copies of this Order to all counsel of record

Anthon/ l/TPrenga
United Stares District Judge
Alexandria, Virginia
May 13,2014

30