Lawlor v. Davis

Filing 60

OPINION AND FINAL ORDER, entered and filed 6/15/17: This matter is before the Court on a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by counsel for Mark Eric Lawlor ("Lawlor" or "Petitioner& quot;), a Virginia state inmate, as outlined. The Petition and motion to supplement were referred to a United States Magistrate Judge for report and recommendation ("R&R"), as outlined. On August 26, 2016, the Magistrate Judge is sued his R&R, recommending that this Court: (1) deny and dismiss the motion to supplement; and (2) grant Respondent's motion to dismiss Lawlor's 2255 petition in its entirety, as outlined. R&R 2, ECF No. 50. Having reviewed for &qu ot;clear error" all unobjected-to portions of the detailed Report and Recommendation (R&R), this Court ADOPTS the unobjected-to facts, analysis, and recommendations set forth in the 50 R&R, as modified and/or supplemented, as outlined. The Court GRANTS Respondent's 28 Motion to Dismiss, hereby DENYING and DISMISSING Petitioner's 2254 petition in its entirety. Additionally, the Court DENIES both Petitioner's 38 Motion to Supplement the record and his sub sequently filed 55 Motion for Leave to Amend his federal habeas petition. Finding that Petitioner fails to make the requisite legal showing supporting the issuance of a certificate of appealability, either on procedural or merits-based grounds, this Court DECLINES TO ISSUE such a certificate, as outlined. If Petitioner intends to seek a certificate of appealability from the Court of Appeals, he must do so within thirty (30) days from the date of entry of this judgment. (See Opinion and Final Order and Foot Notes for Specifics) (Signed by District Judge Mark S. Davis on 6/15/17). Copies provided as directed 6/15/17. (ecav, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OP VIRGINIA

Norfolk Division
MARK ERIC LAWLOR,

Petitioner,

V.

Civil No.

DAVID W.
Sussex I

2:15cvll3

ZOOK, Warden,
State Prison,

Respondent.

OPINION AMD FINAL ORDER

This

matter

is

before

the

Court

on

a

Petition

Habeas Corpus,

filed pursuant to 28

U.S.C.

for

Lawlor

"Petitioner"),

Mark

state

Eric

inmate.

ECF

("Lawlor"

No.

20.

or

Petitioner

§ 2254,

was

for

Writ

of

by counsel
a

Virginia

convicted

for

the

capital murder of Genevieve Orange and was sentenced to death on
July

2,

2011.

federal

The

Petition

constitutional

conviction
County,

and

35.

the
the

out

of

Circuit
Warden

filed

ECF No.

Petition and motion

States

violations

Petitioner's

Court
of

of

of

Sussex

Fairfax
I

State

filed an answer and moved to dismiss the

thereafter

supplement the record.

United

in

numerous

and a reply was filed by Petitioner.

Petitioner

The

arising

Respondent,

Prison ("Respondent"),
Petition,

rights

sentencing

Virginia.

alleges

Magistrate

a

related

ECF Nos.

motion

27-29,

seeking

to

38.

to

Judge

supplement

for

report

were

and

referred

to a

recommendation

("R&R")
and

pursuant to the provisions of 28 U.S.C.

(C)

and

Local

Civil

Rule

72

of

the

§ 636(b)(1)(B)

Rules

of

the

United

States District Court for the Eastern District of Virginia.

August

26,

2016,

the

Magistrate

Judge

issued

his

recommending that this Court:

(1)

supplement;

Respondent's

motion

to

petition in its entirety,

R&R 2,

On

R&R,

ECF No.

Lawlor's

and

§ 2254

By copy of

their

(2)

the

right

R&R,

to

grant

deny and dismiss the motion to

Petitioner and Respondent were

file

written

objections

to

the

dismiss
50.

advised of

findings

and

recommendations made by the Magistrate Judge.
In light of

the number,

and complexity,

and substantive

issues

raised in the

the

Court

granted

R&R,

this

of the procedural

Petition,

Petitioner's

and addressed in

motion

extension of time to file objections to the R&R.
52.

On

October

24,

2016,

this

Court

received

seeking
ECF Nos.

an
51-

Petitioner's

objections, which challenge the recommendations in the R&R as to
sixteen of the eighteen claims raised in the Petition.
53.

On December 5,

2016,

the Court received Respondent's brief

in opposition to the objections.

ECF No.

2016,

seeking

Petitioner

§ 2254 Petition.
mid-January,
Having

objections

2017.

filed
ECF No.

the

motion
55.

ECF Nos. 56,

reviewed

to

a

R&R,

the

ECF No.

54.

On December 29,

leave

to

amend

his

Such motion was fully briefed by
57.

record

and

and having made

examined

de

novo

Petitioner's

findings

with

respect to those portions objected to,

this Court hereby ADOPTS

and APPROVES the findings and recommendations set forth in the
R&R,

with

the

clarifications

set

forth

below.

Petitioner's

motion for leave to supplement is DENIED, Respondent's motion to
dismiss

is

DENIED.
leave

GRANTED,

and

Additionally,

the

§

2254

Petition

is

DISMISSED

and

the Court DENIES Petitioner's motion for

to amend.
I.

The

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

adopts

account

Judge's

Court

of

Petitioner's

RfitR 2-5.^
Lawlor's

state

and

the
case

incorporates

facts
and

and

the

herein

the

procedural

instant

Magistrate

background

federal

habeas

of

case.

In summary, at the conclusion of the guilt phase of
state

trial,

the

jury

returned unanimous

guilt on two capital murder charges

verdicts

of

(murder in the commission of

abduction with intent to defile,

and murder in the commission of

rape

the

or

phase,

attempted

rape).

At

the sentence was fixed as

conclusion

of

the

penalty

"death" by the same jury after

the jury "found unanimously and beyond a reasonable doubt" that,
as

to

both

capital

convictions,

continuing serious threat to society"

violence

Petitioner's

that

that
would

(hereinafter
"conduct

in

^ Neither party objected to the Magistrate Judge's recitation of

the

factual and procedural background.

that

of

probability

constitute a

and

acts

a

would

dangerousness")

criminal

is

[Petitioner]

"future

commit

"there

committing

the

offense

was

outrageously

or

wantonly

horrible or inhuman,

in that

it

involved torture,

mind,

battery

to

the

or

("JA")

aggravated

12940-42.

The

presiding

separate sentencing hearing,

victim."

judge,

depravity of

Joint

after

vile,

Appendix

conducting

found "no reason to intercede"

a
and

impose a sentence different than that fixed by the jury, and he
therefore "affirm[ed] and impose[d]" the sentence of death as to
both counts.

JA 13134.

Petitioner

filed

an

appeal,

and

the

Supreme

Virginia affirmed the convictions and sentence.
285 Va.

187,

738 S.E.2d 847

a petition for a

Virginia

273

(2014).

habeas

Lawlor v.

Com.,

Petitioner thereafter filed

petition"),

Davis,

288

Va.

and
223,

such
229,

petition

764

was

S.E.2d 265,

Petitioner timely filed the instant § 2254 Petition

in this Court,
Magistrate

Lawlor v.

of

writ of habeas corpus to the Supreme Court of

("state

dismissed.

(2013).

Court

and now that the referred proceeding before the

Judge

has

been completed,

this

matter

is

ripe

for

review.
II.

STANDARD OF REVIEW

A. Standard for Reviewing the R&R

"The Federal Magistrates Act requires a
'make

a

.

to which objection is made.'"

.

Acc.

.

de

Ins.

novo

Co.,

determination

416

F.3d 310,

of

315
4

those

district court to

portions

Diamond v.

(4th Cir.

of

the

[R&R]

Colonial Life &

2005)

(quoting

28

U.S.C.

§ 636(b)(1)); see also R. Gov.

Courts

8(b).

Because

of

generalized

a

form

§ 2254 Cases in U.S. Dist.

"[s]ection 636(b)(1)

objection,"

does not

but

rather,

countenance

requires

"a

party's objection to a magistrate judge's report be specific and

particularized," ^

novo review must only be performed when an

objection

is

advanced

reasonably

to alert

the objection."

(4th

Cir.

the

"sufficient

district

court

When

objection,

"a district

that

is

no

a

party

court

.

2005)

note).

clear error on

(quoting

Fed.

After performing

district

court

Judge's R&R,

of

may

R.

.

the

the

must
face

P.

true

a

621-22

specific

'only satisfy itself
of

the

416

record

in order

F.3d at 315

advisory

appropriate

level of

or

as

ground for

advance

72

reject,

so

478 F.3d 616,

to

Diamond,

Civ.

the

"accept,

fails

.

to accept the recommendation.'"

Cir.

specificity

United States v. Midgette,

2007) .

there

with

modify"

(4th

committee's
review,

the

the

Magistrate

"in whole or in part," or may "recommit the matter"

to the Magistrate Judge.

28 U.S.C. § 636(b)(1).

B. Standard for Evaluating a § 2254 Motion
Federal

habeas

relief

is

available

custody "only on the ground that he is
of

the

Constitution

28 U.S.C.
of
the

habeas

§ 2254(a).
corpus

petitioner

or

laws

or

treaties

a

person

in

state

in custody in violation
of

the

United

States."

Before a federal court may consider a writ

presented by an

must

to

first

individual

exhaust

all

in state

available

custody,

state

court

remedies

or

remedies.

2004)
F.3d

demonstrate

the

Longworth v.

Ozmint,

(citing 28 U.S.C.
693,

697

Westbrooks,

(6th

136

2015),

Ct.

1456

or

ineffectiveness

377 F.3d 437,

§ 2254(b));

Cir.

S.

absence

447-48

s ^ West V.

cert,

(2016)

denied

of

such

(4th Cir.

Carpenter,

sub

(describing

nom.

790

West

v.

exhaustion

as

necessary to render a state prisoner "eligible" for relief under
§ 2254).

To satisfy the exhaustion requirement,

eligibility

for

federal

habeas

relief,

the

and demonstrate
petitioner

must

generally "give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the

State's

established

appellate

review

process"

which

requires

"presenting to the state court both the operative facts and the

controlling
Longworth,

legal
377

principles

F.3d

at

448

associated
(internal

with

each

quotation

claim."

marks

and

citations omitted).

Claims for relief that were fully exhausted in state court
must also be "cognizable on federal habeas review" before § 2254
relief can be granted.

(4th

Cir.

federal

2008) .

habeas

Importantly,

court

state-law questions."
(1991).

"Matters

constitutional

Lawrence v.

issues

to

"it

reexamine

Estelle v.
of

are

State

Branker,

is

517 F.3d 700,

not

the

state-court

Maguire,

province

717

of

determinations

502

U.S.

62,

a
on

67-68

law

not

involving

federal

[therefore]

not

appropriate

grounds

for federal habeas corpus relief," and errors "merely related to

a

State

procedural

federal

habeas

constituted a

complete
where

question

corpus

the

need

for

Cir. 1978)
there

is

not

unless

justice,

the

may

be

reached

the

in

alleged

remedy

or

exceptional

afforded by

Hailey v.

Dorsey,

the

proceedings
generally

federal

in

not

constitutional

in a

circumstances

writ

of

580 F.2d 112,

state

court,"

entitled

state habeas

to

a

right

federal

relief

based

proceeding because

to

habeas

115

(4th

As

post-conviction

habeas
on

a

error

{internal quotation marks and citations omitted).
"no

during a

.

defect which inherently results

of

corpus is apparent."

.

petition

fundamental

miscarriage

.

petitioner

errors

is

occurring

such claims of

error

represent "an attack on a proceeding collateral to detention and
not

to

the

detention

itself."

Lawrence,

517

F.3d

at

717

(citations omitted).
Even

if

habeas claims
prisoner

state

court

that are cognizable

seeking

§ 2254

procedural obstacles."

Cir.

2009) .

requirements

remedies

habeas

Wolfe v.

have

been

in federal
corpus

Johnson,

exhausted

court,

relief

as

" [a]

faces

565 F.3d 140,

to

state

several
160

(4th

Failure to comply with applicable state procedural
can

result

generally precludes a

in

a

"procedural

default"

which

federal court from adjudicating the merits

of a petitioner's claims.

Id.

412,

As explained in detail by the United

417

(4th Cir. 2006)).

(citing Vinson v.

True,

436 F.3d

States

Court

of

Appeals

for

the

Fourth

Circuit

("Fourth

Circuit"):

Under the procedural default doctrine, federal habeas
review of federal claims defaulted by prisoners in
state court "pursuant to an independent and adequate
state procedural rule . . . is barred unless the
prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation
of

federal

law."

Coleman v.

Thompson,

501

U.S.

722,

750 (1991).
"The procedural default doctrine and its
attendant cause and prejudice standard are grounded in
concerns of comity and federalism and apply alike
whether the default in question occurred at trial, on
appeal,
or on state collateral attack." Edwards v.
Carpenter, 529 U.S. 446, 451 (2000) (internal citation
and quotation marks omitted).
In addition to showing
"due
regard
for
States'
finality
and
comity
interests," Dretke v. Haley, 541 U.S. 386, 393 (2004),

the procedural default doctrine's cause and prejudice
standard,
by allowing federal
courts
to consider
certain procedurally defaulted claims, also serves to
ensure

"that

*fundamental

fairness

[remains]

central concern of the writ of habeas corpus.'"
(quoting Strickland v. Washington, 466 U.S. 668,

the

Id.
697

(1984)) .

Richmond v.

Polk,

375 F.3d 309,

322

(4th Cir.

2004)

(omission in

original)

^ In the context of procedurally defaulted claims alleging trial errors,
"prejudice" is defined as errors that "worked to [a petitioner's] actual
and substantial disadvantage, infecting [the] entire trial with error of
constitutional

dimensions."

United States

v.

Frady,

456

U.S.

152,

170

(1982) .
In the context of a § 2254 habeas claim asserting a "Brady
violation," which occurs when the prosecution fails to disclose material
exculpatory evidence, the Fourth Circuit has described the procedural
default "prejudice" standard as "coincident with" the "prejudice" that
must be proven to establish a Brady violation, Wolfe v. Clarke, 691 F.3d
410, 420 (4th Cir. 2012), namely, that the withheld evidence is reasonably
"likely to have changed the verdict," United States v. Bartko, 728 F.3d
327, 338, 340 (4th Cir. 2013) (quotation marks and citations omitted).
As
an alternative to the "cause and prejudice" standard outlined in Frady,
there is also a limited "fundamental miscarriage of justice exception,"

which in a death penalty case, can be established if a petitioner puts
forth "clear and convincing evidence" demonstrating that, "but for the

As

to

fully

defaulted,

a

adjudicated

exhausted

federal

on

the

court

merits

"resulted in a

involved

unreasonable

Federal law,
States"

or

may

by

adjudication

an

cognizable

claims

that

grant

state

a

relief

court

decision that was

application

of,

on

in

a

decision

not
claim

if

such

contrary to,

clearly

that

a

only

was

or

established

as determined by the Supreme Court of
"resulted

are

the United

based

on

an

unreasonable determination of the facts in light of the evidence
presented

in

the

State

court

proceeding."

28

U.S.C.

§ 2254(d)(1)- (2).

A State court's decision is contrary to clearly established
federal law if "the state court arrives at a conclusion opposite

to that reached by

[the Supreme]

Court on a question of law or

if the state court decides a case differently than [the Supreme]
Court

has

on

a

set

Williams v. Taylor,
§

2254

motion

of

529 U.S.

cannot

be

district]

court concludes

relevant

state-court

federal

materially
362,

granted

in its

decision

indistinguishable

412-13

(2000).

"simply

applied

law erroneously or incorrectly";

Importantly,

because

independent

facts.

[the

a

federal

judgment that the

clearly
rather,

established

relief

is only

constitutional error, no reasonable juror would have found the petitioner
eligible for the death penalty under the applicable state law."
Richmond,
375 F.3d at 323

(quotation marks and citations omitted).

^ All references in this opinion to the "Supreme Court"

that are not

accompanied by further clarifying language refer to the Supreme Court of
the United States.

warranted

when

the

erroneous

"objectively unreasonable."
{4th Cir. 2000)
A

state

when

its

that

is

court

simply

makes

not

Wiggins

state-court

conclusion

v.

federal

in

the

determined

Jarvis,

an

unreasonable

the

law depends

supported by
Smith,

factual

the

Bell v.

is

to

236 F.3d 149,

be

158

(quoting Williams, 529 U.S. at 411).

application of

record.

because

(en banc)

application

539

U.S.

first

court

in

510,

is

not

fact

fact

the

528

state

reached a

rather,

court

(2003).

unreasonable

would have

instance";

of

finding of

on a

evidence

determination
habeas

determination

it

"[A]
merely

different

is

only

when

"reasonable minds reviewing the record" could not disagree about
the

error

that a

federal

court performing

§

may reject the finding of the state court.

U.S.

2 90,

3 01

(2010)

Additionally,
Circuit,
provides

when

such

performing

review

that

'a

(quotation marks

is

"§

of

Wood v.

a

by

review

Allen,

and citations

2254(d)(2)

informed

determination

2254(d)(2)

omitted).

review"

in

"§ 2254(e)(1),

factual

issue

558

made

this
which
by

a

State court shall be presumed to be correct,' and the petitioner
'shall

have

correctness

the
by

burden

clear

and

of

rebutting

convincing

the

presumption

evidence.'"

Elmore

of
v.

Ozmint, 661 F.3d 783, 850 (4th Cir. 2011)."

As discussed in Elmore,

while the Fourth Circuit considers §

2254 (e) (1)

in its application of § 2254(d)(2), "[t]he Supreme Court has not decided
whether
§ 2254(e)(1)—an
'arguably
more
deferential
standard'
than
§ 2254(d)(2)—'applies in every case'
involving § 2254(d)(2)
review."
10

C.

The

Strickland Ineffective Assistance Standard

Sixth

Amendment

to

the

Constitution

of

the

United

States provides that "the accused shall enjoy the right . . . to
have

the

amend.

Assistance

VI.

The

of

Supreme

counsel as providing a
assistance

of

686

(1984)

397

U.S.

759,

771

defendant

asserted

basis

for

Sixth Amendment

representation during his

to

his

claims

an adequate

trial

Lawlor's

performed

now-defaulted

Angelone,

error

131

amounts

claim

F.3d

to

442,

at

446

U.S.

Richardson,

claims

contention

been deemed

rule.

at

an

466

Petitioner

Additionally,

level in an effort to demonstrate
the

to

advances

where

that

the

he

was

to constitutionally effective

trial.
have

Const,

right

Washington,

assistance

state procedural

counsel

v.

Here,

right

that

the

(quoting McMann v.

ineffective
is

U.S.

"'the right to the effective

(1970)).

relief

defence."

interpreted

Strickland

n.l4

stand-alone

his

has

(emphasis added)

multiple

constitutional

for

Court

counsel.'"

668,

denied his

Counsel

a

to

Petitioner alleges

"cause"

Cir.

constitutionally

several

defaulted pursuant

constitutionally

earlier

(4th

as

that

deficient

for failing to raise

time.

1997)

See

Mackall

("[W]hen

ineffective

v.

attorney

assistance

of

Elmore, 661 F.3d at 850 (quoting Wood, 558 U.S. at 300-01).
While the
Supreme Court granted certiorari in Wood to address the interplay of such
statutory provisions, such issue was ultimately not reached in Wood
because

the

disputed

factual

finding

was

reasonable

deferential standard articulated in § 2254(d)(2).

the result
applied.

is

the

same

irrespective

11

of

which

Here,

under

the

less

similar to Wood,

statutory

subsection

is

counsel,

it

may

provide

the

cause

necessary

to

excuse

a

procedural default.").
To

succeed

on

a

stand-alone

ineffective

assistance

claim,

or to use ineffective assistance as a means to excuse procedural

default,

a

petitioner must

performance
standard

was

of

establish both

so deficient

reasonableness;

that

and

deficient

performance
466

(2)

caused

Strickland,

687-88;

F.3d 370,
of

380

U.S.

(4th Cir.

ineffective

default,

test

forth

in

contained

insufficient

to

such

in

the
see

petitioner

serve

v.

as

730

F.3d 354,

359

Angelone,

must

"Vague

[federal

therefore

(4th Cir.

and

habeas]

burden

"be

2013)

to

209

claim
excuse

satisfy

disposed

the

conclusory

petition"

under

further investigation by the District Court."
Dyess,

prejudice.

cause

petitioner]

petitioner's

may

constitutionally

Clagett

can

2254

a

below an objective

counsel's

Strickland.").

carry a

allegations

§

fell

(1) counsel's

("[I]n order to establish a

that

[the

allegations

and

2000)

assistance

procedural
set

at

it

that:

are

Strickland,

of

without

United States v.

(quotation marks

and

citation omitted).

Satisfying

the

first

prong

of

Strickland

requires

a

Petitioner to establish that his lawyer "made errors so serious
that counsel was not functioning as the
defendant by the Sixth Amendment."
Reviewing

courts

strongly

Strickland,

presume
12

'counsel'

that

guaranteed the

466 U.S. at 687.

counsel

exercised

reasonable professional
situations"
all

the

will a

§

judgment,

and only in

"relatively rare

2254 motion establish that,

circumstances,

the

identified

acts

or

"'in light of
omissions

were

outside the wide range of professionally competent assistance.'"
Tice

V.

Johnson,

Strickland,

challenge

466

an

of

conduct

Strickland,

of

Circuit,

the

or

As

it

Cir.
is

strategy,

[must]

be

2011)

all

once

made
to

"basic

As

of

has

and

to

the

time."

reiterated
is

the

evaluate

the

Strickland

to

proven

eliminate

at

recently

lesson"

it

easy

reconstruct

perspective

689.

(quoting

too

to

challenged conduct,

counsel's
at

(4th

hindsight,

counsel's

U.S.

102

690) .

effort

from

466

87,

omission,

effects

circumstances

Fourth

at

"every

distorting

F.3d

U.S.

act,

unsuccessful,

the

647

by

not

the
just

deference but high deference, and attorneys are permitted to "be
selective

and

strategic

assistance of

counsel

824,

(4th Cir.

828,

The

830

second

without

risking

an

claim."

United States v.

2014)

(citations omitted).

prong

of

Strickland

requires

Mason,

a

"affirmatively prove prejudice," which requires a
there

is

a

unprofessional

reasonable
errors,

been different."

probability is a

in the outcome."

ineffective

probability

the

result of

Strickland,

466 U.S.

that,

but

774

F.3d

petitioner

to

showing "that
for

counsel's

the proceeding would have
at 693-94.

"A reasonable

probability sufficient to undermine confidence

Id.

at 694.

If a
13

petitioner fails to prove

either of the two prongs of the Strickland test,
not evaluate the other prong,
500

{4th Cir.

Having

that

Petitioner's

Hardee,

723

F.3d 488,

2013).

carefully

reviewed

governing this Court's review,
outset

Moore v.

the court need

the

question

Strickland

the

applicable

standards

it is important to clarify at the

before
claims

this
is

Court

not

when

whether

evaluating
Lawlor

has

demonstrated both prongs of the Strickland standard, but rather,
whether Petitioner has demonstrated that such legal standard was

unreasonably

applied

by

the

Supreme

Court

of

Virginia.

The

following detailed excerpt from the Supreme Court places a fine
point on such distinction:
The pivotal
application

question is whether the state court's
of
the
Strickland
standard
was
unreasonable.
This is different from asking whether
defense counsel's performance fell below Strickland's
standard.
Were that the inquiry, the analysis would
be no different than if, for example, this Court were
adjudicating a Strickland claim on direct review of a
criminal

conviction

in a

United States d i s t r i c t

court.

Under AEDPA, though, it is a necessary premise that
the two questions are different.
For purposes of
§ 2254(d)(1), "an unreasonable application of federal
law is different from an incorrect application of
federal

law."

Williams,

supra,

at 410.

A state court

must be granted a deference and latitude that are not
in operation when the case involves review under the
Strickland standard i t s e l f .
A

state

court's

determination

that

a

claim

lacks

merit

precludes federal habeas relief so long as "fairminded
jurists could disagree" on the correctness of the
state court's decision.
U.S.
652,
664
(2004) .

Yarborough
And
as

v. Alvarado,
this
Court

explained,

whether

rule

"[E]valuating

14

a

541
has

application

was
unreasonable
requires
considering
the
rule's
specificity.
The more general the rule, the more
leeway courts have in reaching outcomes in case-bycase

determinations."

unreasonable
Federal

law

Ibid.

application
for

a

state

"[I]t

of

is

clearly

court

to

not

an

established

decline

to

apply a

specific
legal
rule
that
has
not
been squarely
established by this Court."
Knowles v. Mirzayance,
556 U.S. Ill, 122 (2009)
(internal quotation marks
omitted).

The Court of Appeals appears to have treated the
unreasonableness question as a test of its confidence

in the
Because

result
the

Richter's

it would reach under ^

Court

of

Strickland

Appeals
claim

had

had

novo review:

little

merit,

doubt

the

that

Court

of

Appeals concluded the state court must have been
unreasonable in rejecting it.
This analysis overlooks
arguments
that would otherwise
justify the state
court's result and ignores further limitations of
§ 2254(d), including its requirement that the state
court's
decision
be
evaluated
according
to
the
precedents of this Court.
See Renico v. Lett, 559
U.S. 766, 778-779 (2010).
It bears repeating that
even a strong case for relief does not mean the state
court's
contrary conclusion was
unreasonable.
See
Lockyer

[v. Andrade,

538 U.S.

63,

75,

If this standard is difficult to meet,

(2003)].

that is because

it was meant to be.
As amended by AEDPA, § 2254(d)
stops short of imposing a complete bar on federalcourt relitigation of claims already rejected in state
proceedings.
Cf. Felker v. Turpin, 518 U.S. 651, 664
(1996)
(discussing AEDPA's
"modified res
judicata
rule" under § 2244).
It preserves authority to issue
the writ
in cases where
there
is no possibility
fairminded
jurists
could disagree
that
the
state
court's

decision

conflicts

with

this

Court's

precedents.
It goes no further.
Section 2254(d)
reflects the view that habeas corpus is a
"guard
against extreme malfunctions in the state criminal
justice systems," not a substitute for ordinary error
correction through appeal.
Jackson v. Virginia, 443
U.S. 307, 332, n.5 (1979) (Stevens, J. , concurring in
judgment).
As a condition for obtaining habeas corpus
15

from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented
in federal court was so lacking in justification that
there was an error well understood and comprehended in

existing

law

beyond

any

possibility

for

fairminded

disagreement.
The reasons for this approach are familiar.

"Federal

habeas

both

review of

state convictions

frustrates

the

States' sovereign power to punish offenders and their
good-faith attempts to honor constitutional rights."
Calderon v.
Thompson,
523 U.S.
538,
555-56
(1998)
(internal quotation marks omitted).
It "disturbs the

State's significant interest in repose for concluded
litigation, denies society the right to punish some
admitted offenders, and intrudes on state sovereignty
to a
degree matched by few exercises of federal
judicial authority."
[Harris v.] Reed, 489 U.S. [255,
282 (1989)] (Kennedy, J., dissenting).

Surmounting
task."

Strickland's

Padilla

v.

high

Kentucky,

(2010)....

Even under ^

for

counsel's

judging

deferential one.

Establishing

.

.

that

bar

is

559

never

easy

356,

U.S.

an

371

novo review, the standard

representation

is

a

most

.

a

state

court's

Strickland was unreasonable under §

application

2254(d)

of

is all the

more difficult.
The standards created by Strickland
and § 2254 (d) are both "highly deferential," id., at
689; Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997),
and when the two apply in tandem, review is "doubly"
so,

Knowles,

556 U.S.

at 123.

The Strickland standard

is
a
general
one,
so
the
range
of
reasonable
applications
is
substantial.
556
U.S.
at
123.
Federal habeas courts must guard against the danger of
equating
unreasonableness
under
Strickland
with
unreasonableness

under

§

2254(d).

When

§

2254(d)

applies, the question is not whether counsel's actions
were reasonable.
The question is whether there is any
reasonable
argument
that
counsel
satisfied
Strickland's deferential standard.

Harrington v. Richter,

562 U.S. 86,

16

101-03, 105

(2011).

III.

DISCUSSION

A. Motion to Supplement the Record
The Court first addresses Petitioner's motion to supplement

the

record,

as

Petitioner's

it

supplement.

that

adopts
denied.

issue

Petitioner
this

law,

adopts

the

threshold

Court

objects

deny

the

affect

the

R&R's

to

pending

and

approves

recommendation

the

that

analysis

motion

to

the

motion

Kelly,

Fourth Circuit

592 F.3d 535

held

the

to

R&R,

supplement

and
be

to support the

"Supreme Court of Virginia fully

adjudicated Lawlor's claims on the merits."
In Winston v.

novo review,

in

Set forth below is additional analysis

the

could

and having conducted a ^

conclusion in the R&R that the

I) ,

that

Having considered the record on this issue,® as well

as relevant case
Court

a

claims.

recommendation

this

is

that

the

R&R 11.

{4th Cir.

denial

of

2010)

a

(Winston

state habeas

claim is not entitled to deference under 28

U.S.C.

§

the

to

incomplete,"

state

because a

court

record

"ultimately proves

be

2254(d)

"judgment on a materially incomplete record is not an

adjudication on the merits for purposes of § 2254 (d)."
® This

if

Court's

references

to

"the

record"

include

Id.

Petitioner's

at

§ 2254

habeas petition and all related briefing, including Respondent's motion to

dismiss,

the RSJl,

the objections and responses to the R&R,

filed exhibits attached to such briefs and motions,

all properly-

as well as

relevant

portions of the state court record, including the state habeas briefs and
associated motions, the appendix to Petitioner's state habeas petition,
and the state court "Joint Appendix."
The Joint Appendix, the bulk of
which is the transcript from Petitioner's jury trial {including voir dire,
the guilt phase, the penalty phase, and subsequent sentencing proceedings)
spans over 15,000 pages.
17

555-56

{citations

recognized,

had

not

omitted) .

this

Court

has

previously-

"[t]he Fourth Circuit's finding that the state court

adjudicated

appeared

As

to

rely

the

claim

heavily

on

on

the

the

merits

fact

in

that

Winston

the

[I]

petitioner

offered,

'for the first time in federal habeas proceedings, new,

material

evidence

it

permitted

Clarke,

28,

No.

2012)

Supreme

further

(quoting

Court

the

the

state court

development

2:llcv630,

2012

Winston

subsequently

called Winston I

(2011),

that

into doubt,

Fourth

Circuit

of

could have

the

WL 4498914,

I,

592

an

at

*6

at

Waters

(E.D.

Va.

555).

opinion

Cullen v.

later

facts.'"

F.3d

issued

considered had

Pinholster,

reaffirmed

Sept.

While

that

the

arguably

563 U.S.

the

v.

holding

170

of

Winston I, explaining that "nothing in Pinholster indicates that
the

[Supreme]

overrules-our
requirement
501-02

Court's

disposition

discussion

of

in Winston I."

{4th Cir.

2012)

the

casts

on-much

II) .

Pearson,
As

this

683
Court

F.3d 489,
explained

a f t e r Winston I I was decided;

Synthesizing the[se]
cases,
the threshold question
that must be addressed by a district court is whether
the claims at issue were "adjudicated on the merits"
in the state habeas action.
Circuit noted that

In Winston II,

the claim at

issue

the Fourth

in that case had

not been adjudicated on the merits based on the state
court's "unreasonable denial of
[the petitioner's]
requests for discovery and an evidentiary hearing" in
state court.
Winston II, 683 F.3d at 502 (emphasis
added).

The

Fourth

the state court's

Circuit

"found

in Winston

I

that

refusal to allow Winston to develop
18

less

adjudicated-on-the-merits

Winston v.

(Winston

doubt

the record, con±)ined with the material nature of the
evidence that would have been produced in state court
were appropriate procedures followed,
rendered its

decision
unbefitting
of
adjudication on the merits."
Waters, 2012 WL 4498914, at *8

Here,

having

reviewed

classification
as
Id. {emphasis added).

(alteration in original).

the

nature

of

discovery that Lawlor made in state court
conduct discovery,

an

evidentiary

and

the

federal court,

this Court finds

now

supplement.

seeks

to

adjudicated

fails

to

on

the

the

demonstrate

in

that

evidence

V,

X,

state

any

and motion for

later developed

of

and

court

the

XII,

were

because:

to

demonstrate

the

now seeks to introduce.
366,

375-76

(E.D.

Va.

state

piece

of

nature

See Brizuela v.

inapposite to this case,
single

"material"

2015)

in

court's

of

the

Clarke,

{"Both Winston I

fully

(1) Lawlor

decisions

denying requests for discovery were unreasonable; and (2)
fails

for

that the claims that Petitioner

Claims

merits

requests

{motion for leave to

motion for expert assistance,

hearing),

an

Lawlor

evidence

he

112 F. Supp.

3d

and Winston II are

as petitioner has failed to identify a

material

evidence

that

the

Supreme

Court

of

Virginia failed to consider.").
As

created

to

Claim

affidavit

Alexander Morton,
obtained,

V,

Petitioner

from
Jr.

defense
("Dr.

seeks

expert

Morton")

and conclusions he reached,

interview of Lawlor.

First,

to

introduce

a

recently

psychopharmacologist
discussing

based on a

information he
recent clinical

although Lawlor did file a
19

Dr.

motion

in state

court during his

have

expert

an

state habeas

psychopharmacologist

proceedings

appointed

seeking to

to

interview

Petitioner,

the denial of such motion was reasonable in light of

the

that

fact

evidence

demonstrated

the

development.

Importantly,

had before

that

it

already

absence

a

of

before

any

need

the

for

further

post-trial

Morton asserts he could have,

not

admissible

admissible

if

Dr.

Petitioner,

Lawlor

Morton
fails

and should have,

and

made at trial had

State Habeas App.

had

would

the

683

F.3d at

496

not

have

been

to

rendered

interview

an unreasonable

factual

(explaining that

561-70.

but determined

opportunity

to demonstrate

by the state court to expand the
II,

Morton

conclusions/testimony that Dr.

Because the state court considered such evidence,
was

factual

declaration prepared by Dr.

defense counsel been more diligent.

it

court

the Supreme Court of Virginia already

expressly addressed expert

that

state

record.

refusal

See Winston

"de novo review might be

appropriate" when "a state court unreasonably refuses to permit"
further factual development).

Second,

comparing

Dr.

Morton's

interview declaration

to

his

the

is

apparent

state

seeks

to

court,
introduce

demonstrate

that

it

that

"'ultimately

is not

the

earlier

state court

proves

to

be
20

declaration

that

"' [n]ew,

recently

the

updated
that

evidence

was

so as

ruling was based on a

Id.

before

Lawlor

material evidence'"

incomplete.'"

post-

at

now
to

record

496-97

(quoting Winston I,

592

F,3d at

555-56).

Rather,

the updated

declaration is similar to the previously introduced declaration,
ECF No.

39-1,

declaration,

Morton

is

evidence

and Petitioner's Claim V,

faces the same hurdles,

precluded

that he

from

may

providing
proffer

not

his

any

including the fact that Dr.

his

obtained solely from

Lawlor, 288 Va. at 233,
expert

basing

conclusions

on

interviewing Lawlor,

opinion

hearsay

evidence

testimony,"
Dr.

Morton

and

to

that

could

the

jury

"Lawlor

have

Because

adjudicated

Claim

the

V

see

on

Supreme
the

Court

merits,

of

this

to

from

an

(citations

Virginia

Court's

when

fails

gleaned

interview with him that would have been admissible")

omitted).

hearsay

764 S.E,2d at 275 {explaining that "a[n]

relate

evidence

with or without the new

fully

review

is

properly constrained to the record before the state court.®
As

to

Claims

X and XII,

\insworn psychological

expert

Petitioner

report

seeks

from Dr.

to

introduce

an

Victoria Reynolds

(discussing Lawlor's alleged sexual victimization when he was a
child,

as

well

as

his

drug

undated declaration from Dr.
Lawlor's

traumatic

development).

ECF

and

Joette James

childhood
Nos.

alcohol

dependence)

39-3.

an

(similarly discussing

experiences

39-2,

and

and

psychological

Importantly,

however,

Lawlor never sought to present such evidence to the state court.

® As discussed infra in the Court's analysis of Claim V, such claim would
fail

with,

or

without,

the

proposed

Morton.

21

supplemental

affidavit

from

Dr.

Rather,

a

in addition to his state-court motion seeking to appoint

psychopharmacologist,

Petitioner

plenary evidentiary hearing
were

material

disputed

Reynolds or James,

previously

(without

facts

(a)

mental

any assertion

regarding

{!)

that

testimony

a

there

from

Dr.

instead focusing only on evidence relevant to

Petitioner's Batson challenge); and
investigate

sought:

(2)

"discovery"

in order to

specific evidence that was allegedly "missing,"

(b)

the

health

(c)

the qualifications of a blood spatter expert that testified

at Lawlor's trial.'

records

of

Petitioner's

ex-fianc#e,

and

Accordingly, there having been no specific

request at the state level to obtain such evidence,

Petitioner

did not make diligent efforts to develop this evidence in state
court

nor

did

the

state

court

unreasonably

reasonable development of the record.
F.

App'x

327,

petitioner's]
denied

an

341

state

(4th

Cir.

evidentiary

hearing

further

Cf. Burr v. Lassiter,

2013)

post-conviction

foreclose

("The

counsel

simply

does

fact

that

requested
not,

[the

but

without

513

was

more,

warrant de novo review of the state court's decision.").®

While the Supreme Court of Virginia denied all three of these motions,
it did consider affidavits and documentary evidence advanced by Petitioner
and Respondent in support of their respective state habeas briefs.
Lawlor,

288 Va.

at 248,

764 S.E.2d at 284.

® Notably, Claim XII was not even pursued in Petitioner's state habeas
petition,

but

was

instead

raised

during

Lawlor's

direct

appeal.

Petitioner therefore plainly fails to demonstrate that the state habeas
court improperly precluded expansion of the record in support of a claim
that Lawlor never even raised before the state habeas court.

22

Separately,
advanced

in support

"material"

evidence

"unbefitting

merits."
habeas

the Court finds that the proposed declarations

of

that

II,

X and XII

are

render

would

683

the

considered

and

additional

state

rejected

would

an

at

502.

Court

offered

and

neglect

Lawlor

claim

expert

during

"negatively affected his
regulate
history

his
of

emotions

neglect

and

incarceration,

relapse,

and

ability

and

this

to plan,

and

the

S.E.2d at 282.

was

merely

of

often

cycle

was

presented

at

in denying
expressly

James

the

Hopper

phase

including:

(1)

child"

make

and

if
"the

how

decisions,

(2)

"that

and

Lawlor's

resulting behavioral

criminal

exacerbated
Lawlor,

and

cycle of

activity

by

it

the

and

lack

288 Va.

of

at 244,

In concluding that such proffered evidence

carefully

reviewed

trial,

include

and his therapist,

the

penalty

and

involving

"cumulative mitigating

Virginia

on

led Lawlor to addiction and a

treatment for his underlying issues."
764

a

of

decision

regarding

Dr.

the

as

behavior";

and abuse

interpersonal deficits
sobriety

suffered

type

court

Virginia

defense counsel had called him as a witness,
abuse

the

Notably,

of

defense

not

adjudication

Petitioner's

that

have

the

as

F.3d

Supreme

testimony

purportedly

Claims

classification

Winston
relief,

of

to

Mary Fisher,

evidence,"

the

the

evidence

testimony

from

indicating that

Supreme

that

had

Lawlor's

Court

been
family

"Lawlor was an

abused and neglected child who turned to drugs and alcohol" and
23

testimony

from

"Dr.

psychopharmacologist,
who

suffer

and

childhood

Morton,

Fisher"

trauma

Lawlor's

indicating

and

have

that

expert

"individuals

untreated

psychiatric

problems often turn to drugs and alcohol to 'self-medicate,' and
that

Lawlor's

mental

health

and

substance

abuse

treatment

programs had been ineffective because they failed to address his
underlying mental
282.

health

issues."

Id.

at

245,

764

S.E.2d

at

This Court therefore concludes that the newly proffered

expert reports merely provide additional "cumulative" mitigating
evidence

that

is

not

Claims X or XII.
as

the

"material"

to

the

proper

resolution

For all of the above stated reasons,

reasons

stated

in

the

R&R,

Petitioner's

of

as well

motion

to

supplement is denied.
B.

Timeliness of §

2254 Petition

The one-year limitations period applicable to the filing of
§

2254

motions

"is

affirmative

defense

asserting."

Hill v.

(citations

not

omitted).

defense,

that

that

the

Braxton,

to

instant

such

motion

finding,

Judge

did

"point

instead

the

705

sua sponte

"timely."

does

is

bears

Respondent

was

but

state

but

277 F.3d 701,

Here,

and the Magistrate

the

object

jurisdictional,"

burden

(4th Cir.

not
noted

raise
in

Petitioner

out"

that

"an
of

2002)

such

the R&R

does

not

Petitioner

disagrees with the Magistrate Judge's precise calculation of the
deadline for filing his § 2254 petition.
24

This Court finds

it

unnecessary

to

{1} Respondent
motion;

and

address

the

never challenged

(2)

timely filed.

precise
the

deadline

timeliness

of

because:
the

§

2254

it is undisputed that such motion was in fact

This Court therefore ADOPTS only the Magistrate

Judge's sua sponte observation that the Petition is timely.
C. § 2254 Claim by Claim Analysis

The
eighteen

R&R

individually

habeas

claims.

addressed
Petitioner

each
filed

of

Petitioner's

objections

to

the

Magistrate Judge's Recommendation as to sixteen of the eighteen
claims.

For

specific

each claim on which

and particularized objections,

de novo review,

below.

lack

a

and the

Midgette,

478

results of

F.3d at

315.

Prior

to

Court

conducted a

For

those matters

or any objection at

"clear error"

reviewing

this

such review are articulated

621-22.

particularized objection,

Court has performed a

at

Petitioner properly advanced

review.

each claim,

all,

Diamond,

the

Court

that

416

the
F.3d

reiterates

that the question on federal habeas review is not whether this

Court agrees with the analysis/finding of the Supreme Court of
Virginia,

but

"unreasonable

Richter,
Stated

rather,

whether

application

562 U.S. at 101
differently,

fairminded

jurists

of

state court's

clearly

established

ruling was
Federal

an

law."

(citation and quotation marks omitted).

habeas
could

the

relief

is

disagree

on

25

precluded
the

"so

correctness

long

as

of

the

state

court's

decision."

Id.

(citations

and

quotation

marks

omitted).
1.

Petitioner's

first

Claim I

claim

asserts

that

the

trial

court

improperly prevented the defense from asking the necessary voir
dire

questions

Such

claim

identify
penalty

to

identify

asserts

jurors
was

both

who

the

"substantially

that

may

proper

defense

have

impaired"

counsel

predetermined

punishment

and

was

unable

that

jurors

jurors.

the

who

to

death

would

not

fairly consider mitigating evidence presented during the penalty

phase.

The

Supreme

direct appeal.
such

claim

Court

and

recommends
to

the

and after conducting a
and

Virginia

rejected

such

claim on

The R&R independently addressed each subpart of

Petitioner objects

analysis

of

^

dismissal

R&R's

findings

novo review,

recommendations

in

of

the

as

subparts.

to both

this

R&R,

both

subparts,

Court adopts

with

the

the

following

clarification.

As

highlighted

Court has held as

Any

juror

facts

and

in

Petitioner's

objections,

the

Supreme

follows:

who

would

impose

circumstances

of

death

regardless

conviction

of

cannot

the

follow

the dictates of law.
It may be that a juror could, in
good conscience, swear to uphold the law and yet be
unaware that maintaining such dogmatic beliefs about
the death penalty would prevent him or her from doing
so.

A

defendant

on

trial

for

his

life

must

be

permitted on voir
dire
to ascertain whether his
prospective jurors function under such misconception.
26

.

.

.

Petitioner was entitled,

upon his request,

to

inquiry discerning those jurors who, even prior to the
State's
case
in
chief,
had
predetermined
the
terminating issue of his trial, that being whether to
impose the death penalty.
Morgan

v.

citations
asserts

Illinois,
and

504

U.S.

719,

footnote
defense

that

omitted).
counsel

735-36

(1992)

Applying
was

conducting an adequate voir dire,

such

{internal

rule,

improperly

Lawlor

limited

from

both in violation of Morgan,

and in violation of the Supreme Court's subsequent finding in
Abdul-Kabir

v.

Quarterman,

550

U.S.

233,

246

(2007)

that

"sentencing juries must be able to give meaningful consideration
and effect to all mitigating evidence" presented by the defense.
A review of Morgan and Abdul-Kabir,

transcript,
Virginia

plainly

did

precedent.

not

illustrate

unreasonably

that

apply

and of Lawlor's trial

the

Supreme

controlling

Court

Supreme

of

Court

Notably, while the trial transcript reveals that the

trial judge limited defense counsel from asking,
multiple questions going to the issue of a

and re-asking,

prospective juror's

"viewpoint" on the death penalty and/or viewpoint as to specific
species

of

mitigating

enforced after
prospective

evidence,

sufficient

jurors:

(1)

such

questions

had

not

death penalty);

and

was

an

punishment

appropriate

(2)

were

27

to

were
ensure

only
that

the

appropriate

(in favor of,

or against,

would not
in

asked

predetermined

punishment based on personal beliefs
the

limitations

this

decide
case

on whether death
until

after

they

considered

all

circumstances.

relevant

See,

aggravating

e.g.,

JA

and

8679-85,

mitigating

8786-92,

8867-76.®

Petitioner fails to demonstrate that clearly established Supreme

Court

precedent

contrary,
when

mandates

the trial

denying

a

more

searching

inquiry;

to

the

judge clearly acted within his discretion

Petitioner's

counsel

the

right

to

ask

certain

additional questions regarding prospective jurors' viewpoints on
the

death

identified
Angelone,

a

penalty

and/or

species

of

their

mitigation

166 F.3d 255,

265-66

viewpoint

on

evidence.

(4th Cir.

specifically

See

1999)

Yeatts

v.

(explaining that

"capital defendant must be allowed on voir dire to ascertain

whether prospective jurors are unalterably in favor of the death
penalty

in

every

case,"

simply to whether a

and

while

asking

jury can be fair

.

.

questions
.

"directed

are insufficient,"

asking a

prospective juror whether he or she would "be able to

consider

voting

associated

for

a

questions

sentence
addressing

less

whether

willing to consider imposing death,
whether
that

such

juror

would prevent

"entertains
or

than

or

she

along

with

would

be

is sufficient to determine

opinions

substantially

he

death,"

on

impair

capital
the

punishment

performance

of

' Such transcript pages are examples of the questions asked, primarily by
the state-court judge, to several different panels of prospective jurors.
While such citation is only an excerpt of relevant portions of the voir
dire, Petitioner fails to specifically identify any juror that was seated
on the jury who was not asked adequate preliminary questions, and/or
follow up questions, in order to permit defense counsel to determine
whether such juror was "substantially impaired."
28

his

[or her]

States V.

duties as

Fulks,

a

juror")

454 F.3d 410,

428

(citation omitted);
(4th Cir.

2006)

United

("Morgan only

requires the exclusion of jurors who would categorically reject

any mitigating evidence offered by the defendant.")
omitted).

Petitioner's first claim is therefore dismissed.
2.

Petitioner's

rights

were

rulings

dire.

{citations

and

second

Claim I I

claim

asserts

violated based on

the

hostile

of

treatment

that

trial

defense

his

due

court's

process

contradictory

counsel

during

Petitioner does not object to the analysis/recommendation

set forth in the R&R on this issue.

for clear error,

Having conducted a

review

this Court adopts and approves the analysis and

conclusion set forth in the R&R,
3.
Petitioner's

and Claim II is dismissed.
Claim I I I

third claim asserts

that

the

trial

court

by allowing Petitioner to be convicted and sentenced by a
that

was

assembled

Batson V.
asserts
for

voir

Kentucky,

that

failing

jury

his
to

selection.

in a
476

trial

raise

The

a

discriminatory manner
U.S.

79

(1986).

counsel
Batson

was

in violation of

constitutionally

Court

jury

Petitioner separately

challenge

Supreme

erred

of

at

the

deficient

conclusion

Virginia

held

of

that

Petitioner's direct Batson claim (asserting that the trial court
erred)

was procedurally defaulted under Virginia law,

and that

his ineffective assistance claim failed to satisfy either prong
29

of

the

state

Strickland

court's

independent

test.

default

state

The

R&R

analysis

concludes

was

law ground,

based

that

on

because

adequate

an

Lawlor's direct

the

and

claim must

fail

unless he can demonstrate "cause" and "prejudice" sufficient to
overcome

his

default.

(4th Cir. 1997)
justice,

a

its

merits

procedural

court

on

the

basis

rule.")

that

Strickland

use

counsel's

excuse

in

state

court

of

because

on

an

(citation

analysis

relief

sitting

claim when a

concluded

obtain

Pruett,

125

F.3d 192,

196

("Absent cause and prejudice or a miscarriage of

federal

constitutional

See Mu'Min v.

was

his

the default of

Supreme

and

review

independent
The

Court

unreasonable,

deficient

not

R&R

of

assistance

Virginia's

claim,

performance

as

state

further

Petitioner

the direct Batson claim.

nor

a

While

cannot
can

basis

he

to

Petitioner

purports to broadly object to "each and every ground"
the Magistrate Judge ruled,

a

has declined to consider

adequate

ineffective

allegedly

may

omitted).

the

not

habeas

on which

he does not challenge the fact that

his direct Batson claim was procedurally defaulted pursuant to
an adequate

and independent state procedural

squarely challenges

the

application of

to defense counsel's failure
no

clear

error

in

the

R&R's

to raise a
conclusion

rule,

but

instead

Strickland with respect
Batson claim.
that

Petitioner's

Finding
direct

Batson claim is defaulted based on an adequate and independent

state rule,

and having reviewed the remainder of this issue ^
30

novo,

this

Court

adopts

and

approves

the

analysis

and

recommendation in the R&R, as clarified below.

As already emphasized herein,

the question for this Court

is not whether Petitioner has raised a

any

reasonable

deferential

argument

standard."

that

or even "a strong

but rather,

case for relief" under Strickland,

viable,

"whether there is

counsel

Richter,

562

the Supreme Court of Virginia had a
defense

counsel's

satisfied
because,

state

the

decision

deferential

even in hindsight.

habeas

not

petition

to

satisfied

U.S.

at

Strickland's

102,

105.

Here,

"reasonable argument"
advance

Batson

challenge

performance

Strickland

a

that

standard

Petitioner's Batson argument in his

relied

only

on

statistics.

Although

Petitioner appears correct that there was mathematical evidence
of

a

possible

bias,

there

was

undercut the reasonableness of

no

other

evidence

of

bias

the state court's findings.

to

As

explained in a fractured opinion issued by the Fourth Circuit in
Allen V.

Lee,

366

F,3d 319

(4th Cir.

2004)

(en banc),

with the

fractured nature of such opinion aptly demonstrating the degree

to which "reasonable minds"
in

a

case

where

the

can differ on Batson's application

prosecution uses

strikes on minority members of
opinion concludes

most

the venire,

that the use of

of

its

preemptory

the Allen majority

"raw statistics"

to determine

whether a prima facie Batson claim is proven is "both selective

and

uninformative,"

and

that

while
31

statistics

are

surely

an

important

factor

manipulable

and

circumstances
differently,
strikes

the

Batson

untrustworthy

to

which

while

against

particular

[a

given

give

a

they

Id.

at

that

group]

rise

(emphasis added).

Here,

case.

an

Batson,

of

the

Stated

'pattern'

included

to

best,

330.

in

of
the

inference

of

"should consider

to determine whether a

facie

"at

view

"a

i t also states that the court

prima

are

holistic

states

racial

might

a

apply."

itself

relevant circumstances"

established

analysis,

absent

they

Batson

venire

discrimination,"
all

in

476

defendant has

U.S.

at

96-97

the Supreme Court of Virginia was not

unreasonable in concluding that defense counsel performed within
constitutional

requirements

by

opting

not

challenge based on statistics alone in a

defendant,

nor

the

Petitioner

fails

to

were

questioned

than

non-minority

victim,

were

demonstrate

differently,

or

members.

raise

a

Batson

case where neither the

minorities,^"

that

minority

otherwise

Stated

to

and

venire

treated

where
members

differently,

differently,

the

Supreme

Court of Virginia was not unreasonable in finding that there was

Petitioner asserts that the Magistrate Judge improperly applied a

"more

onerous prima facie test" for establishing an inference of discrimination
based

on

the

fact

that

Petitioner

was

not

the

same

race

as

the

struck

jurors.
ECF No. 53, at 12.
While this Court's review of the R&R suggests
that a more onerous test was not applied, even if it was, this Court does

not

apply such a

test

in performing

its

^

novo

review,

but

instead

clarifies that a criminal defendant's race vis-a-vis a struck juror's race
is one of the many relevant considerations that make up the totality test.
Here, the difference in race is worthy of recognition if only to highlight
the absence of other evidence, even circumstantial, suggesting that race
was a motivating factor in jury selection.
32

no other direct

or circumstantial

evidence of a

statistics alone did not mandate that a

Alternatively,
Supreme

Court

prejudice

Supreme

of

Petitioner
Virginia

analysis.

Court

of

First,

to

Petitioner's

in

that

that

demonstrate

unreasonable

Virginia erred

and

the

motion be filed.

fails

was

bias,

in

its

Strickland

assertion,

failing

to

that

recognize

the

that

Batson error qualifies as a

"structural error,"

is rejected as

the

Court

Supreme

question

before

this

is

whether

Court

precedent clearly establishes that counsel's failure to raise a
Batson claim constitutes structural error,
not

so established.

1253

(8th

holding

Cir.

that

premised on a
to

a

2013)

"an

610 F.

although

the

(discussing

ineffective

Batson error"

presumption

Hubert,

See United States v.

of

Fifth

Kehoe,

it

is decidedly

712

F.3d 1251,

Circuit

Eighth

assistance

precedent

of

counsel

is not "'structural error'

prejudice")

App'x 433,

and

433-34

Circuit

(footnote
(5th Cir.

recognizes

omitted);
2015)

a

claim

entitled
Scott

v.

(holding that,

substantive

Batson

violation as "a structural error," Strickland prejudice "is not
presumed"

for

§ 2254

claims

asserting

that

"trial

counsel

rendered ineffective assistance by failing to make an objection
under Batson";

rather,

the petitioner is

his

failure

to

dire

counsel's

prejudiced his

raise

defense").

Batson
Second,

Virginia cannot be deemed "unreasonable"
33

"required to show that

objections
the

during

Supreme

voir

Court

of

in concluding that the

trial record did not otherwise support a

finding of Strickland

prejudice, because for the reasons discussed above, and based on
additional facts

in the record,

argument"

Petitioner

that

probability

that

a

there is at least a

fails

timely

to

raised

establish
Batson

"reasonable

a

reasonable

claim

would

have

proceeded past the prima facie stage.
Because

claim

fails

Petitioner's

to

establish

ineffective

that

the

assistance

Supreme

of

Court

unreasonably applied Strickland and/or Batson,

of

his

assistance claim fails on the merits.Moreover,

counsel

Virginia

ineffective

although this

Although not necessary to the Court's findings herein, the Court notes
that even if a prima facie claim is assumed, substantial questions remain
as to whether Lawlor could have continued beyond the prima facie stage and
actually prevailed on a timely raised Batson claim.
Specifically, the
record includes several relevant affidavits, including those from trial
counsel, that suggest a Batson claim was unlikely to succeed.
Two of the
struck jurors at issue revealed viewpoints on the death penalty that were
favorable to the defense, and another had close family members with a drug
abuse history that concerned the prosecution.
See Feb. 14, 2013, Mo.
Leave
9279.

File Suppl. Aff. Exh. B, JA 8420-21, 8458, 8460-62, 9272, 9275,
There also appear to be questions as to whether all of the struck

jurors were readily identifiable as minorities.
at
435
(holding that
the
§ 2254
Strickland prejudice even though he

Cf.

Scott,

petitioner failed
to
did establish a prima

610 F. App'x
demonstrate
facie claim

under Batson).

" Lawlor asserts in his objections to the R&R that the Magistrate Judge
"overlooked" Lawlor's secondary argument asserting that, even if the
Batson error is not structural, Lawlor demonstrates Strickland prejudice.
ECF

No.

53,

at

13.

secondary argument is

Such

claim

just that,

of

error

has

little

force,

as

Lawlor's

with Lawlor's § 2254 motion relying on

the conclusory assertion that "confidence is undermined in this capital
trial where the state improperly discriminated against minorities in jury
selection."
ECF No. 20, at 18.
Notwithstanding the brief and conclusory
nature of such argument, the R&R addresses it, concluding that prejudice
is not established in the absence of evidence calling into question the
impartiality of the jury that was seated in this case.
R&R 34.
This
Court therefore rejects Lawlor's assertion that the Magistrate Judge
"overlooked" a portion of this claim.
Moreover, even if the Magistrate
34

Court previously concluded that Lawlor's direct Batson claim was
defaulted,

and Petitioner fails to overcome such default through

demonstrating ineffective assistance, were this Court authorized
to consider the merits of Lawlor's direct claim,
be denied.

For the

same reasons

defense counsel was not

to

demonstrate

this

Court concludes

constitutionally deficient for

to raise Batson at trial,
fails

that

the claim would
that

failing

this Court would conclude that Lawlor

that

the

trial

court

was

obligated

to

affirmatively "make inquiries" into whether the prosecution used
its

strikes

in

an

unconstitutional

manner.

Claim

III

is

therefore dismissed.

4.
Petitioner's

fourth

Claim IV

claim

asserts

that

rendered ineffective assistance by failing
Virginia

law

establishing

degrees of murder.
Petitioner

failed

counsel

to understand basic

distinctions

between

various

The Supreme Court of Virginia concluded that
to demonstrate

Judge

overlooked some aspect

been

reviewed

^

the

trial

novo,

of

and

Strickland prejudice,

the prejudice

this

Court

analysis,

finds

that

and

the

such claim has

Lawlor

fails

to

demonstrate the absence of a reasonable argument in support of the Supreme
Court of Virginia's finding that Lawlor's failure to demonstrate a prima
facie

Batson

prejudice.

violation

results

See Lawlor,

288 Va.

in

at

his

failure

230,

764

to

demonstrate

S.E.2d at

273

Strickland

("Lawlor has

failed to establish a prima facie case of purposeful discrimination .
that the trial court would have accepted.")
Not

only

does

the

record

fail

to

.

.

(emphasis added).

suggest

that

the

trial

court

was

itself obligated to raise Batson sua sponte, but the trial judge did in
fact take the affirmative step of asking counsel for both sides whether
they were satisfied with the composition of the jury, and they both
responded in the affirmative.

JA 9448.
35

Magistrate Judge concluded that the Supreme Court of Virginia's
application

of

Strickland

was

objects

the

Magistrate

Judge's

to

other things,

not

unreasonable.
analysis

Petitioner

contending,

among

that Petitioner was improperly held to an elevated

standard on Strickland's prejudice prong.

Having conducted a ^
approves
full.

the

Magistrate

First,

absence

of

associated
argument

a

review

an

with

that

defense

closing

arguments,

is

premeditation."

elements

both

on

of

the

the

was

abundantly

that

trial

defense

and

of

first

the

counsel

reveals

of

"concession"

from

conclusions

transcript

application

guilty

clear

this Court adopts and

analysis

counsel's

Petitioner

it

R&R

Judge's

"unreasonable"

because

the

novo review,

was

degree

not

the

Strickland

during

record,

in

closing
murder

including

conceding

Moreover, as the Supreme Court of Virginia and
conclude,

various

the

jury

degrees

of

instruction

murder,

reciting

including

the

capital

Petitioner suggests that it was constitutionally deficient for defense
counsel to ask the jury for a second degree murder conviction during
opening statements, and then ask for a first degree murder conviction
during closing arguments.
ECF No 20, at 22.
Such claim is based on the
contention that the jury may have interpreted the request during closing
as an admission of guilt to premeditated first degree murder.
However, in

light of defense counsel's repeated arguments against a finding of
premeditation during his closing argument, there is no force whatsoever
behind the contention that the jury conceivably interpreted the request
during closing as a "diametrically opposite" legal theory from what the
defense
asserted
during
opening.
Rather,
the
only
reasonable
interpretation of such latter request was that it was an acknowledgement
that, based on the compelling evidence presented by the prosecution at
trial, it was likely that the jury would find that Lawlor either abducted,
or attempted to rape, the victim, which would elevate un-premeditated
murder from second degree murder to first degree felony murder.
36

murder,

premediated

first

degree

murder,

and second degree murder,

murder,

first

degree

were accurate.

defense counsel's mistakes of law,

if any,

felony

Accordingly,

were remedied by the

fact that the jury was properly instructed and the fact that, as

illustrated by the transcript excerpts contained in the R&R,
is

abundantly

clear

that

the

defense

was

not

it

conceding

premeditation.
As

to

Petitioner's

contention

that

the

Supreme

Virginia applied an "elevated" prejudice standard,
is similarly rejected.
is

read

as

making

successful;

(1)

of

such argument

Even if the state court habeas opinion
an

opaque

reference

to

whether

effectively establishes an alternative defense that
been"

Court

the

case

citation

Lawlor

"would have

immediately

following

such opaque statement and the associated parenthetical authored

by the Supreme Court of Virginia clearly illustrates that it was

applying

the

correct

and

the

conclusion

(2)

"reasonable
of

the

probability"
Supreme

analysis of this claim held as follows:
to demonstrate that there

is a

for counsel's alleged errors,
have

been

277-78

different."

(emphasis

prejudice

Court

"Thus,

of

test;

Virginia's

Lawlor has failed

reasonable probability that,

but

the result of the proceeding would

Lawlor,

288

added)This

Va.

at

Court

237,

764

S.E.2d at

similarly

rejects

Even if the state court improperly applied an elevated standard, which
this Court does not believe to have occurred, an independent analysis of
37

Petitioner's assertion that the state court's habeas ruling was

unreasonable in light of the "cumulative prejudice" suffered by

Lawlor because there was no "prejudice" to cumulate.^®
In sum,

the Supreme Court of Virginia was not unreasonable

in concluding that Petitioner failed to demonstrate Strickland

this issue, without affording any deference to the state court, would lead
to

the

same

conclusion—Lawlor

fails

to

establish

Strickland

prejudice.

Moreover, because the defense trial strategy during the guilt phase was
clearly aimed at avoiding a capital conviction in order to avoid a death
sentence, this Court's independent analysis of counsel's performance would
conclude that even if counsel made legal errors on this issue, they did
not

rise

to

the

level

necessary

to

render

counsel's

performance

constitutionally deficient.

Petitioner also asserts that defense counsel's faulty representation
resulted in counsel failing
to ask the court for an instruction
differentiating between the types of first degree murder, and that the
prejudice resulting therefrom was compounded by the trial court's
erroneous
jury instruction
indicating
that
if
Lawlor was
grossly
intoxicated he could not be found guilty of "capital murder or murder in
the first degree."
ECF No. 53, at 14; JA 10520.
The error in such
instruction is
that
although intoxication is a
viable defense
to
premeditated murder in the first degree, i t is not a viable defense to
felony murder in the first degree.
Importantly, however, it was defense
counsel that: (1) recognized the misstatement in the instruction as it was

being read to the jury; (2) immediately informed the trial court of the
error during a bench conference; (3) explained to the court during such
bench conference that Petitioner could be convicted of first degree felony
murder without premeditation; and (4) convinced the court to correct the
erroneous

instruction.

The

corrected

jury before deliberations commenced,
they

would

have

the

corrected

instruction

was

then

read

to

the

and the judge assured the jury that
instruction

before

them

during

deliberations.
JA 10522-28.
Petitioner's present effort to rely on a
jury instruction that was immediately corrected after being read fails on
its face.
Moreover, assuming that the judge, defense counsel, or even the
jury was somewhat confused as to the difference between felony first
degree murder and premeditated first degree murder, it is highly unlikely
that

such

confusion

because the

had

any

impact

on

the

outcome

of

the

guilt

phase

jury unanimously found Lawlor guilty of capital murder with

premeditation.
The
Supreme
Court
of
Virginia
was
therefore
not
unreasonable in concluding either that defense counsel did not perform
deficiently by failing to ask for clearer instructions defining the
gradations of murder,

Lawlor,

288 Va. at 235-37,

764 S.E.2d at 276-78, nor

in concluding that Petitioner failed to demonstrate Strickland prejudice
based on the "concession" made during closing, whether such concession is
considered alone or in conjunction with other purported prejudice.
38

prejudice

associated

jury return a

with

verdict of

764 S.E.2d 277-78.

defense
first

request

degree murder.

Id.

that
at

the

237-38,

Petitioner's claim is therefore dismissed.
5.

Petitioner's

counsel's

fifth

Claim V

claim

asserts

that

trial

counsel

was

constitutionally deficient in the handling of defense expert Dr.

Morton, an expert psychopharmacologist.
counsel

was

deficient

for

failing

interviewed

Petitioner

prior

to

prepare

Dr.

Morton

to

testify,

whether

Petitioner,

or

a

to

Petitioner asserts that
ensure

trial,
and

failing

failing

hypothetical

that

to

person,

Dr.

to
ask

Morton

adequately
Dr.

would

Morton

have

been

capable of premeditation after consuming

"the better part of a

case of beer" and "7-10 grams" of crack.

State Habeas App.

While Dr.

Morton did testify at trial,

570.

he testified only as a

"teaching expert," explaining the general effects of using large
quantities of crack and the impact of mixing alcohol with large

quantities of

crack.

The Supreme Court of Virginia held that

Petitioner failed to satisfy either prong of Strickland and the
R&R concluded that such analysis was not unreasonable.

Having

considered Petitioner's objections to the R&R and conducted a de
novo review,

with

some

Morton's

this Court largely adopts the analysis in the R&R,

clarifications

testimony

under

regarding
Virginia

the

law,

admissibility
and

concludes

of

Dr.

that

the

Supreme Court of Virginia did not unreasonably apply Strickland.
39

First,

the Court rejects Petitioner's objection contending

that the state court ruling was based on an unreasonable factual

finding

associated

with

Petitioner

prior

to

reasonably

concluded

Dr.

trial.
that

Morton's
The

such

an

failure

Supreme

to

Court

interview

of

would

interview
Virginia
not

have

produced admissible evidence which Dr. Morton could rely on, and
relay from the stand,

regarding either Lawlor's history of drug

use or his drug use on the night of the murder.

The state court

therefore reasonably concluded that neither prong of Strickland
was satisfied.^'

"

Whether information about Petitioner's drug history could have been

introduced through other witnesses and then relied on by Dr. Morton is a
separate issue because it turns on whether counsel was deficient for
failing to provide a better response to the prosecution's "relevance"
objection made when witness Charles Wakefield was testifying.
JA 1032234.
was

Even assuming that this issue constitutes a separate subclaim that
properly presented to the Supreme Court of Virginia, and further

assuming that no deference is owed because such subclaim was not squarely
addressed by the state court, this Court's independent analysis of such
subclaim would

result

in i t s

denial

because

the

record reveals

a

lack of

prejudice.
See Winston v. Pearson, 683 F.3d 489, 496 <4th Cir. 2012)
("[W]hen a state court does not adjudicate a claim on the merits, AEDPA
deference is inappropriate and a federal court must review the claim de
novo."); Wiggins, 539 U.S. at 534 (conducting an independent analysis of
the Strickland prejudice prong because "neither of the state courts below
reached this prong of the Strickland analysis").
Importantly, Petitioner

did introduce evidence at trial indicating that he had substance abuse
issues and had been to drug rehabilitation,
and Lawlor fails
to
demonstrate in his § 2254 Petition how introduction of any further
"details" about his drug/alcohol history would have altered Dr. Morton's
testimony so as to make Wakefield's proposed testimony directly relevant
to Dr. Morton's opinion.
Moreover, while this Court concluded above in
Part III.A that it would not consider Dr. Morton's supplemental affidavit

because it was not before the Supreme Court of Virginia, to the extent
that a ^
novo consideration of this subclaim permits this Court to
consider the supplement, such document only further supports this Court's
analysis.
Notably, even after Dr. Morton performed a "clinical interview"
of Lawlor, he failed to provide details as to how Lawlor's specific
history impacted Lawlor's, or would have impacted a hypothetical person's,
40

Second, the Court rejects Petitioner's objection contending
that the Supreme Court of Virginia's habeas opinion was based on
an unreasonable factual finding regarding the quantity of crack
cocaine

(6

grams)

and beer

(an

unknown quantity)

Lawlor on the night of the murder.

of

Virginia's

amount

of

finding

beer,

Mr.

that

Supporting the Supreme Court

Lawlor

Johnson's

ingested by

consumed

trial

an

testimony

indeterminate
was

uncertain

and/or equivocal as to the number of beers that Lawlor consumed

on the night of

the murder

many he was drinking")

(JA 10197

(JA 10203

-

drank "maybe about three or four"
one
Mr.

to

[Lawlor's]

Johnson

drinking).^®

was

three or four")
not

counting

-

"I can't tell you how

indicating that Mr.

Johnson

and that Johnson drank "like
(JA 10255
how

many

-

indicating that

beers

Lawlor

was

Similarly, the Supreme Court of Virginia's finding

that Lawlor consumed 6 grams of crack was not unreasonable as it
was

plainly

supported

by

the

trial

transcript.

ability to premeditate.
Rather, Dr. Morton offers only the
conclusion that, in his opinion, a complete drug history was
understanding the nature of Lawlor's addiction and his
response to extreme intoxication on the night of the crime."

H 16.

As

stated

overly broad
"necessary to
physiological
ECF No. 39-1

Such broad statement provides no clarity on how Lawlor's actual

drug/alcohol history would have changed Dr. Morton's trial testimony, and
thus, falls far short of the showing necessary to undermine confidence in
the outcome of the trial.
Accordingly, this subclaim, even if considered
de novo, is denied for lack of Strickland prejudice.
Mr. Johnson, who was with Lawlor for several hours prior to the murder,
first helped Lawlor obtain the crack cocaine at issue and then helped
Lawlor obtain powder cocaine that Mr. Johnson subsequently "cooked" into
crack cocaine.
Mr. Johnson personally smoked a portion of both the
purchased crack cocaine and the crack cocaine that he manufactured/cooked
from the purchased powder cocaine.
41

herein,

merely

"a state-court factual determination is not unreasonable

because

different

the

conclusion

federal
in

habeas

the

first

court

would

instance";

have

rather,

reached

a

even when

"reasonable minds reviewing the record might disagree" about the

finding

in

insufficient
Wood,

question,

to

such

supersede

potential

the

for

finding

of

disagreement

the

state

is

court."

558 U.S. at 301 {citations omitted).

Third,

this Court rejects Petitioner's contention that the

Supreme Court of Virginia unreasonably applied Strickland with
respect

to

its

finding

that

Dr.

Morton's

proffered post-trial

expert opinion was inadmissible because it went to the ultimate
fact at issue in the case.

"

See Waye v.

Com.,

219 Va.

683,

While unnecessary to support the conclusion reached herein,

696,

on this

record, this Court would in fact reach the same conclusion as the Supreme
Court of Virginia as to the crack calculation if it were called on to make

an independent finding.
As explained in the R&R, Mr. Johnson testified
that he smoked approximately 1 gram of the first eight-ball of crack and 1
gram of the second eight-ball (meaning that Lawlor smoked 2.5 grams of
each of the first two eight-balls, for a total of 5 grams).
JA 10246.
The best interpretation of the evidence as to the third eight-ball is that
only half of it was collectively ingested by Lawlor and Mr. Johnson.
Petitioner's contention that the second half of the third eight-ball was
cooked into crack and consumed by Lawlor is based on a strained reading of
the following portion of the trial transcript:
Q. And of that last half of that eight-ball,
you said that's three and a half grams?
A.

Yeah,

eight-ball,

3.5.

Q. And you said you cooked half of that up.
did he

well,

How much of that

smoke?

A. Of the powder that I cooked up?
Q.

JA

Yeah.

A.
I'd say maybe about, maybe about a gram of it.
10215
(emphasis added).
While Mr.
Johnson's
initial

testimony

discussing the third eight-ball raised the inference that he may have
cooked powder cocaine into crack in two separate batches, JA 10211, the
record not only fails to reveal that there was a

second "cooking" event,

but supports the contrary as Mr. Johnson's subsequent testimony confirms
that he "only cooked half" of the powder cocaine into crack. JA 10248.
42

251 S.E.2d 202,

opinion,

that

premeditate

the

at

inadmissible"

"would

210

omitted).

(holding that "[t]he proffered expert

defendant

the
as

have

(1979)

time

it

went

invaded
While

the

not

did not,

of

the

to

(1982)

or

Com.,

for the proposition that,

"entitled

to

cumulative

have

the

effect

of

629-30,

292

differently,
a

S.E.2d

at

fact

the

at

223 Va.

615,

of

and

expert

806

ruled

in

the

R&R,

292 S.E.2d 798

in

a

jury is

as

to

answer

added).

the

to

in the record."

(emphasis

and

(citations

opinion

alcohol,

and

issue

jury")

distinguished

hypothetical question based upon evidence
at

properly

under Virginia law,

benefit

[drugs]

of

deliberate

was

ultimate

province

Petitioner cites Fitzgerald v.

fact,

killing,

the

discussed

in

a
Id.

Stated

Virginia law prevented defense counsel from asking

testifying

expert

whether

Lawlor

premeditated,

but

it

permitted counsel to ask such an expert if a hypothetical person

who

ingested the

ingested by
asserts

same quantity of drugs

Lawlor

could

his

counsel

that

have

and alcohol

premeditated.

was

Lawlor

constitutionally

that were
therefore

deficient

for

failing to elicit "hypothetical" testimony from Dr. Morton.
Because

Court

cannot

application

post-trial
Court

reasonable

of

of

conclude

minds

that

Strickland

affidavit
Virginia

could differ

the

was

by

Dr.

testimony
43

such

Court

unreasonable.

submitted

proffered

Supreme

on

Morton
that

of

issue,

Virginia's

Importantly,

to
was

this

the

the

Supreme

specific

to

Lawlor,

which

on

its

face

on

Waye

Virginia's

reliance

fails

demonstrate

to

constitutionally

that

expert

certainty,

opinion,
Mr.

for

to

Lawlor

the

the

his

deficient.

proffered affidavit states:

my

supports

Supreme

proposition

counsel's

Court

that

Lawlor

performance

Specifically,

Dr.

of

was

Morton's

"I was prepared to testify that in

a

reasonable

would

not

have

degree
been

of

able

scientific
to

form

the

necessary intent to premeditate given the amount of alcohol and
crack

cocaine

he

(emphasis added) .
court

to

based

on

had

ingested."

It was

find a

lack of

defense

thus

State

Habeas

not unreasonable

App.

for

569-70

the

state

constitutionally deficient performance

counsel's

decision

not

to

press

the

issue

further in the face of the prosecution's objection and the rule
established in Waye.See Richardson v.

141

(4th

Cir.

2012)

(explaining

that,

Branker,

when

a

668

F.3d 128,

federal

habeas

ineffective assistance claim "involves an issue unique to state

As previously discussed, this Court denied Lawlor's request that this
Court consider a newly updated affidavit from Dr. Morton that was prepared

after

the

Supreme

Court

of

Virginia

issued

its

habeas

opinion.

proffered affidavit continues the contention that Lawlor consumed
least seven grams" of crack, modifying the quantity of beer to be

Such
"at
"at

least 12 beers." EOF No. 39-1 H 13. Curiously, while plainly not derived
from new evidence discovered during Dr. Morton's clinical interview of
Lawlor, Dr. Morton's "new" proposed testimony is that "a hypothetical
person who consumed at least seven grams of crack cocaine and at least
twelve beers would not be able to premeditate or deliberate."
Id.

(emphasis added).

Such modified proffer was not before the Supreme Court

of Virginia, and it is therefore not considered here.
Moreover, even if
such proffer were properly before this Court, it would not warrant habeas
relief as it is predicated on hearsay that conflicts with the quantities

of crack and beer reasonably found by the Supreme Court of Virginia.
44

law,

. . . a federal court should be especially deferential to a

state post-conviction court's
law"

as

it

correct
laws")

is

the

"beyond the mandate of

interpretation

by

state

federal
courts

its own state's
habeas

of

a

courts

state's

to
own

(quotation marks and citation omitted).

Fourth,

this Court agrees with the finding in the R&R that

Petitioner

Virginia
Even

interpretation of

fails

demonstrate

unreasonably

assuming

sought

to

to

that

found

defense

introduce

a

that

lack

counsel

Dr.

the

of

Strickland

had

Morton's

Supreme

Court

of

prejudice.

acted

differently

and

ultimate

conclusion

as

proffered in the affidavit presented to the state habeas court,

Lawlor fails
evidence

to demonstrate a

would

have

been

reasonable probability that such

admitted

objection because i t violated Waye.

Corr. Inst.,

over

the

See Coins v.

576 F. App'x 167, 173 {4th Cir. 2014)

prosecution's
Warden,

Perry

(declining to

disturb the state court's finding that the petitioner "was not
prejudiced
counsel

within

failed

evidence").

Fitzgerald,
of

a

to

meaning

make

Moreover,

and Dr.

hypothetical:

Supreme

Court

absence

of

from Dr.

the

a

of

an
even

of

Strickland

attempt
if

to

when

introduce

defense

counsel

his

trial

inadmissible
had

invoked

Morton was permitted to testify in the form
(1)

Lawlor

Virginia

reasonable

was

fails

to

demonstrate

unreasonable

likelihood

that

in

that

the

finding

the

additional

testimony

Morton would have changed the outcome of the trial in
45

light of
Dr.

the favorable evidence that was already presented by

Morton;and

(2)

because the defense failed to proffer the

contents of additional admissible hypothetical testimony to the

state

habeas

failure

court,

a

have

purported prejudice

to present such testimony is

576 F. App'x at 173
make

any

investigation

if

speculative.

from

the

See Coins,

{holding that the petitioner's "failure to

specific proffer"

testified"

flowing

as

counsel

"reduces

any

to

"what

had

performed

claim

of

speculation and is fatal to his claim")

Fifth and finally,

because

an expert
a

witness
more

prejudice

would

complete

to

mere

(citation omitted).

the Supreme

Court of Virginia

reasonably determined that Lawlor ingested 6 grams of crack and
an

indeterminate

amount

of

beer,

and

because

Dr.

Morton's

conclusion in his post-trial affidavit submitted to the Supreme
Court

of

Virginia

expressly

ingested "the better part of a

relies

on

the

fact

that

Lawlor

case of beer" and "between seven

See, e.g., JA 10380 (discussing the "profound psychiatric symptoms"
"inability to think clearly" "paranoia," "possibl[e] aggression," etc.
that Dr. Morton would expect to occur if someone consumed 3.5 grams of
crack in an 8 hour period and that an increase in dose leads to an
increase in symptoms, "both as far as frequency and intensity"); JA 1038182 (opining that consuming more than 3.5 grams of crack in an 8 hour
period would cause "profound and marke[d]" changes in conduct, and such a
"massive
amount"
could lead
to
"cardiovascular collapse"
from
the
"stimulation to the heart or having a stroke").
Although this Court could
conceivably have reached a different interpretation than that reached by
the Supreme Court of Virginia regarding the strength of Dr. Morton's
admitted testimony, this Court is not tasked with evaluating whether it
"agrees" with the state habeas court's findings, but rather, need ask only
whether such findings were objectively unreasonable.
Bell, 236 F.3d at
158; Wood, 558 U.S. at 301.
Because such high bar has plainly not been
cleared by Petitioner, the state court ruling must stand undisturbed.
46

and

ten

grams

reasonably
based on

of

found

facts

cocaine,"

that

the

Supreme

Court

proffered

expert

evidence,

in

such

and would

therefore

admissible under any circumstances,^^

of

Virginia

opinion
not

was
have

not
been

Stated differently, citing

Fitzgerald was unlikely to change the outcome of trial because
even if
state

Dr.

Morton modified the

habeas

present

the

hypothetical,

court

about

precise
such

the

testimony he proffered to

effects

same

on

testimony

hypothetical

was

Lawlor

in

both

and

the

the

sought

form

of

inadmissible

to

a

and was

unlikely to change any juror's perception of the case because it
was

based

on

evidence.

^

drug/alcohol

Gray v.

quantities

Zook,

in

excess

806 F.3d 783,

of

about

conclusions

necessarily

evidence
crimes.").

of

how

the

cumulative

remain

intoxicated

effects

speculative

Gray

was

record

799 {4th Cir. 2015)

("[W]hile Gray's new expert affidavits provide a
information

the

at

great deal of

of

PCP,

without
the

time

their

specific
of

the

For all of these reasons. Claim V is dismissed.
6.

Claim VI

Petitioner's sixth claim asserts that his jury instructions
were

unconstitutional

and

that

trial

with

counsel

respect
rendered

to

the mens

ineffective

rea

for murder

assistance

by

As noted above. Dr. Morton's updated affidavit, submitted for the first
time to this Court and prepared after Dr. Morton interviewed Lawlor,

continues to rely on a quantity of crack and beer in excess of that found
by the Supreme Court of Virginia, and
inadmissible under any circumstances.
47

thus,

would

similarly have

been

failing to object to such instructions.^^

The Supreme Court of

Virginia concluded that Petitioner's direct claim was defaulted
and

that

Lawlor

performed

at

a

concludes

that

failed

to

demonstrate

constitutionally
the

Supreme

that

deficient

Court

of

defense

level.

Virginia's

counsel

The
finding

R&R
of

default was based on an adequate state law ground, and that its
application

of

unreasonable.
fails

Strickland's

performance

prong

not

The R&R independently concludes that Lawlor also

to satisfy Strickland's prejudice prong.

not object to the default finding,
analysis,

was

asserting

that

Petitioner did

but objects to the Strickland

counsel's

ineffectiveness,

and

the

prejudice flowing therefrom, excuses his default.
After adopting the unobjected-to default finding,

conducting a ^

and after

novo review of the Strickland claim, this Court

adopts and approves the analysis and recommendation in the R&R.

First,

while the requisite review standard only asks this Court

to determine whether the Supreme Court of Virginia unreasonably
applied Strickland's performance prong
would

have

regarding
objections

reached

the

counsel's
to

the

same

alleged
jury

(it did not),

conclusion

failure

in

to

instructions.

the

this Court

first

advance

instance

additional

Although

jury

To be cognizable on federal habeas review, Petitioner's challenge to
the jury instructions must assert and demonstrate that the instructions
were invalid under the Constitution, not merely that the instructions were
invalid under Virginia law.
48

instructions,
clear

which seek

statements

"improvement,"
the

model

of

the

of

statement

the

of

sufficiently
requiring

law,

on

one's

premeditated,"

often

law.

The

were

killing

further

an
of

to

into

degree

case,

of

including

natural

and

probable

adequate

and

accurate

"specific

intent"

murder

"willful,

such

issues

some

this

capital

was

defining

in
the

concept

the

legal

subject

intending

within

the

complex

given

acts,"

subsumed

that

are

instructions

instruction

consequences

to distill

phrase

was

instructions

deliberate,
as

and

requiring

"a

specific intent to kill adopted at some time before the killing"
which need only exist

for

a

moment

before

the

fatal

act,

but

requires "the accused has time to think and did intend to kill."
JA

10511,

10514,

10517

(emphasis

added).

discussed in the analysis of Claim IV,

As

previously

no further clarity was

necessary to differentiate the different species of first degree
murder,

and

even

if

such

clarification

would

have

been

"helpful," in light of the fact that the jury unanimously found
Lawlor

guilty

reasonable

of

premeditated

assertion

of

capital

prejudice.

murder,

there

Accordingly,

the

is

no

Supreme

Defense counsel objected to such instruction as both confusing and as
inaccurate statement of the law.
While i t is easy to argue in
hindsight that a "better" objection should have been advanced, defense

an

counsel's

efforts

to

exclude

such instruction were

well

within

the

broad

range of reasonably competent assistance in light of controlling Virginia

law.
^
Morva v. Com., 278 Va. 329, 342, 683 S.E.2d 553, 561 (2009)
(rejecting a challenge to the same instruction in a capital murder case).
49

Court

of

Virginia's

application

of

Strickland

was

not

unreasonable.

Additionally,

independent

this Court agrees with the Magistrate Judge's

analysis

holding

that

Strickland's prejudice prong.

Petitioner

fails

to satisfy

Neither Lawlor's § 2254 motion,

nor any of his associated filings, proffer the "specific intent"
instruction that

Lawlor asserts

was wrongly omitted.

Instead,

Petitioner merely speculates that the jury was confused by the
court's instructions.

Such speculation is plainly insufficient

to carry Lawlor's burden under Strickland's prejudice prong.
For

all

conclusion

of

that

these

reasons,
fails

Lawlor

this

demonstrate

to

Court

adopts
that

Court of Virginia unreasonably applied Strickland
means to excuse his default,
assistance

claim).

independent

clarification
whether

that

Lawlor

instructions
(emphasis

analysis

this

failed

to

Court's

this

in

demonstrate a

but

demonstrate

rather,

is

the

analysis

"would have affected the

added),

the

R&R's

Supreme

(either as a

or on his freestanding ineffective

Additionally,

prejudice

the

that

Court

adopts

the

with

the

R&R,

does

not

consider

corrected/additional

jury's decision,"

based on Lawlor's

R&R 48

failure

to

"reasonable probability" that corrected/additional

instructions would have affected the jury's guilt phase verdict.
Claim VI i s

therefore dismissed.

50

7.

Petitioner's

Claims VII & VIII

seventh

and

prosecution violated due

eighth

process

claims

by;

(1)

assert

that

the

knowingly presenting

the false testimony of Detective John Tuller (Napue claim)and
(2)

failing

to

disclose

favorable

material

evidence

Detective Tuller's expert credentials/testimony

regarding

(Brady claim)

The Supreme Court of Virginia concluded that both Petitioner's
Napue

claim

relevant

and

facts

his

were

Brady

claim

were

"known or available

defaulted

because

to Lawlor at

the

the

time of

his trial," meaning that these issues "could have been raised at
trial and on direct appeal."
at 270

(citation omitted).

Lawlor,

288 Va. at 225,

764 S.E.2d

The Magistrate Judge concluded that

the Supreme Court of Virginia's finding of default was based on
an

adequate

separately
"cause"

or

state

law ground as

concluding

that

"prejudice"

to

to

Petitioner
excuse

objects to these latter findings,
default

on

both

claims

both Claims

based

fails

his

VII
to

default.

and VIII,
demonstrate
Petitioner

arguing that he overcame his

on

the

merits

of

the

claims

themselves.

Having

conducted

a

^

novo

review

of

the

objected-to

portions of Claims VII and VIII,

this Court adopts the analysis

and

with

recommendations

in

the

R&R,

" Napue v. Illinois. 360 U.S. 264 (1959).
26

Brady v. Maryland,

373 U.S.

83

(1963).
51

the

following

additional

findings.

First,

as

to

the

Napue

claim

asserting

that

prosecution knowingly presented perjurious testimony,

the

Petitioner

fails to demonstrate "cause" for not raising this claim at trial

or

on

direct

appeal

as

he

"objective factor external

fails

to

to

demonstrate

the defense"

that

(such as when

an
"the

factual or legal basis for a claim was not reasonably available

to counsel," or when "interference by officials made compliance

impracticable")
Murray v.
marks

Carrier,

and

procedural

on

default

the

merits

478,

488

omitted) .

assistance

contrast to a

the

477 U.S.

citations

ineffective

rely

impeded Lawlor from timely raising such a claim.

of

of

of

Napue

the

suppression)

raised at an earlier time,

does

means

not
to

rely

on

excuse

the

instead

purporting

to

itself.

However,

in

claim

where proving the elements of

that an external

prevented
a

a

claim,

Napue

claim under Brady,

as

claim necessarily demonstrates

(prosecutorial

(internal quotation

Petitioner

counsel

his

(1986)

the

claim

meritorious Napue

impediment
from

false

being

testimony

claim does not require proof of prosecutorial suppression or any
other

factor

petitioner

that

would

constitutes
still

an

have

external

to

impediment,

demonstrate

impediment to show cause excusing his default.
True,

act

325 F.3d 225,

by

the

raise the

230-31

Commonwealth

[Napue]

{4th Cir.

impeded

[the

2003)

an

Cf.

so

external

Swisher v.

(concluding that

petitioner's]

ability

claim he now raises at trial or on appeal,
52

a

"no

to
and

he cannot demonstrate cause for his procedural default on this
basis").

that

Accordingly,

the

legal

even assuming,

prosecution knowingly presented

contention

that

procedural default

such

the

trial

proof

is flawed.

demonstrate an external
with

that

Court

also

Rather,

impediment

Lawlor has proven

false

testimony,

his

acts

to

his

excuse

because Lawlor fails

to

to raising his Napue claim

or on direct

appeal,

such claim remains

defaulted irrespective of the underlying merit of such claim.
Second,

as

to

both

the

Napue

claim

and

the

Brady

claim,

consistent with the findings of the Supreme Court of Virginia in
its Strickland prejudice analysis on a related claim that Lawlor
did not

reassert

in this Court,

necessary "prejudice"
at 226-28,
the

R&R's

Petitioner cannot establish the

to overcome his default.

764 S.E.2d at 271-72.
analysis

of

the

Lawlor,

Specifically,
Napue

claim,

288 Va.

as discussed in
R&R

52-53,

the

evidence/testimony at issue as to both the Napue claim and the
Brady claim is not

record

reveals

the

"material" because consideration of the trial

absence

of

a

reasonable

probability

of

a

different outcome had Tuller been barred from testifying as an
expert,

or

background

permitted

to

qualifications

testify

were

as

an

further

expert

after

impeached.^''

his

Although

Tuller's expertise was already impeached by defense counsel's effective
voir dire of Tuller, as such questioning established: (1) Tuller does not
have a

college degree in a

undergraduate

degree

is

in

medical field and he is not a

geology);
53

(2)

there

is

"no

scientist

(his

certification

Petitioner contends that both the state court and the Magistrate

Judge "failed to analyze the prosecution's significant reliance
on

Tuller's

and rape,

testimony

ECF No.

53,

to

establish"

at 21,

reveals that Tuller's fact

a ^

premeditation,

abduction,

novo analysis of such issue

testimony was far more essential to

such issues than his admitted "expert" testimony.^®

Critically,

even assuming that Tuller's expert "opinions" were excluded,

still would have been permitted to testify as
describing,
of

where

in detail,

blood

was

the

found,

a

fact

he

witness

locations and physical descriptions
how

much

blood

was

found

at

each

location, and where objects with blood on them were found in the
victim's apartment.

by

both

admitted

Such fact

photographs

testimony was

of

the

further supported

murder

scene

and

the

program" to become a blood spatter analyst; (3) there is "no licensing
requirement"; (4) the state "doesn't require . . . any certificates"; and
(5) there is "no curriculum required by either the State or the United
States," nor is there a "universal standard" of necessary coursework to
become a blood spatter analysis expert.
JA 9568-70.

The Court rejects Lawlor's contention that Tuller's expert testimony
was
material
to
proving
premeditation,
(1) premeditation was proven in a variety

rape,
or
abduction
as:
of ways, including through
Tuller's fact testimony, with his expert opinions of minimal import to
this
multi-faceted evidence,
cf.
JA 10542-48;
(2)
Tuller's expert
testimony was not linked to "rape" in Lawlor's state habeas petition, and
thus, such argument is not only not properly before this Court, but the
Supreme Court of Virginia cannot be faulted for failing to analyze an
issue that was not before it—moreover, the capital offense at issue only
required proof of attempted rape, and there was overwhelming evidence of
attempted rape wholly independent of Tuller's expert testimony; and (3)
there was overwhelming physical evidence of abduction separate and apart
from Tuller's expert testimony,
based on both fact testimony that
supported

the

inference

that

the

victim

was

moved,

and

fact

evidence

demonstrating that Lawlor used force to physically detain the victim (an
alternative means to prove abduction) even if Lawlor did not move her from
the couch to the

floor.

54

testimony of Dr. DiAngelo,

a medical examiner.

JA 9731-34.

A

review of the portions of the transcript cited by Petitioner in
support of this claim, as well as a review of those transcript
portions Lawlor cites
that

Petitioner's

differentiate

testimony;

{2)

§ 2254 petition itself,

arguments:

between

and

in the

Tuller's

rely

on

(1)

do

not

reveals

effectively

"fact"

testimony

and

"expert"

multiple

arguments

made

by

the

prosecution outside the presence of the jury.^®
In

short,

the

legal

standard

for

establishing

either

a

Napue claim or a Brady claim includes a materiality requirement
because

"a

the

fair

ultimate

trial,

concern

understood

worthy of confidence."
Cir.

2009)

Here,

as

a

Walker v.

(quoting Kyles v.

whether

trial
Kelly,

Whitley,

the

defendant

resulting

in

received

a

589 F.3d 127,

514 U.S.

419,

verdict
142

434

(4th

(1995)).

because neither Claim VII or VIII satisfies the requisite

materiality
See

is

JA

requirement,

10032-33

and

(prosecution

for

the

citing

additional

fact

evidence

reasons
from

stated

Tuller

and

merely referencing "blood spatter" in an argument to the judge outside the
presence of the jury); JA 10047 (prosecution citing both fact and opinion
evidence from Tuller in an argument to the judge outside the presence of
the jury); JA 10095-96 (prosecution argument citing opinion testimony of
"blood transfer," as well as fact evidence, in an argument to the judge
outside
the
presence
of
the
jury);
JA
10532-33
(reflecting
the
prosecution's focus during its guilt-phase closing argument on the facts
documenting the location and quantity of blood more so than Tuller's
expert opinions); JA 12817-18 (prosecution penalty-phase closing argument
that does not focus on any blood spatter expert opinion).
With respect to
those
arguments made
to
the
judge,
the
trial
court's denial
of
Petitioner's motion to strike certain murder charges reveals that the
denial of such motions was not a close call, and in explaining his ruling,
the judge relied primarily on the facts detailing the physical evidence
discovered at the scene, including the location and quantity of blood
found on various items in various locations.
55

in the R&R, Claim VII and Claim VIII are dismissed as defaulted
and as lacking in merit.
8.

Claim IX

Petitioner's ninth claim asserts that Virginia's sentencing
scheme

is

defendant

unconstitutional
to

forfeit

his

because
right

it

to

requires

have

a

a

jury

capital
determine

statutory aggravating factors if he exercises his right to plead
guilty.
was

Additionally,

constitutionally

Petitioner asserts
deficient

for

that defense counsel

failing

to

challenge

constitutionality of Virginia's sentencing scheme.
Court of Virginia concluded that

the

The Supreme

Petitioner's direct claim was

defaulted and that Petitioner failed to overcome such default by

demonstrating Strickland prejudice.
that

the

Supreme

Court

of

The Magistrate Judge held

Virginia's

finding

supported by an adequate state law ground,
not

overcome

his

default

because

the

of

default

was

and that Lawlor did

state

court's

Strickland

prejudice analysis was not unreasonable.

The Magistrate Judge

alternatively

failed

found

that

Petitioner

Strickland's performance prong.
review

of

analysis

objected-to
in the

R&R,

issues,

Supreme

Strickland's

Court

of

prejudice

satisfy

After performing a ^
this

including

the

Court

largely

finding

that

direct claim is defaulted under Virginia law,
the

to

Virginia

did

not

prong,

and

the

56

novo

adopts

the

Petitioner's

the finding that

unreasonably
finding

apply

that

an

independent analysis of
that Petitioner fails

Strickland's performance prong reveals

to demonstrate constitutionally deficient

performance.

Beginning with trial counsel's performance,
drugs

and

Petitioner

alcohol

had

a

premeditation),

Lawlor

viable

used

defense

on

the

to

in light of the

night

capital

of

murder

murder.

At

against Lawlor,
day of

trial,

murder.

(lack

of

and thus a clear strategic reason to proceed to

trial and pursue a guilt phase jury verdict to a
of

the

trial,

knowing

the

strength

of

defense counsel wisely conceded,
that Lawlor killed the victim,

lesser degree
the

evidence

from the first

thus

securing the

ability to argue Petitioner's acceptance of responsibility while
retaining

both

the

right

to

a

jury

determination

during

the

penalty phase and the opportunity to secure a guilty verdict to
a non-capital offense that would eliminate the possibility of a
death sentence.

To further underscore the reasonableness of such strategic

approach,

it

responsibility"

is

important

with

not

"remorse"

as

to

conflate

"acceptance

of

they are different concepts.

A person may accept responsibility for a crime when the evidence

This Court's analysis does not turn on Powell v. Com., 267 Va. 107, 590
S.E.2d 537 (2004) or Jackson v. Com., 267 Va. 178, 590 S.E.2d 520 (2004),

because, although these cases address the potential impact of Ring v.
Arizona, 536 U.S. 584 (2002) on the constitutionality of Virginia's
capital sentencing scheme,
they do not squarely address the same
constitutional concerns raised in this case.
57

is overwhelming,

but still lack remorse for the crime itself.

Assuming that Petitioner pled guilty to capital murder and was
perroitted to proceed to the penalty phase before a jury, Lawlor
would have been in largely the same place regarding acceptance

of

responsibility and likely the precise same place regarding

remorse.

That is,

defense counsel would have had the ability to

point the jury to Lawlor's entry of a guilty plea,

but beyond

the

only

occurrence

of

the

plea

"acceptance" and "remorse"

itself,

counsel

could

to the extent that there was in fact

further admissible evidence of acceptance/remorse.

to

demonstrate

in

his

possessed of acceptance,

introduced
introduced

post-plea
following

habeas

a

filings

what

let alone remorse,

but

prove

that

trial

was

where

viable

evidence

he

that could have been

precluded

guilt

Lawlor fails

for

the

from

being

murder

was

accepted during opening statements."

In sum, because the record

suggests

capital

that

pleading

guilty

to

a

charge

would

have

In addition to the above, a review of the record further suggests that
defense counsel's decision not to focus on "remorse" during Petitioner's
penalty phase trial was not inextricably linked to Petitioner's decision
to proceed to trial on the guilt phase, but rather, was likely a strategic
outgrowth of the fact that "immediately after the murder Lawlor insisted

he had no knowledge of the crimes and attempted to cast suspicion on his
neighbor, and that after his DNA was discovered on the victim, Lawlor
insisted he was being framed."
Lawlor, 288 Va. at 229, 764 S.E.2d at 272;
see JA 4675-76 (reflecting the acknowledgment in Petitioner's sentencing
memorandum to the judge that "[i]t is true that in the near aftermath of
the murder Lawlor did not take responsibility for his actions and express
remorse in conversations with the police, his co-worker, and his pastor"
and he instead "exhibited the human frailty often see[n] in people who
commit crimes .
. . either because he was trying to get away with
something or because he was too ashamed to admit what he had done").
58

offered only a minimal added benefit with respect to acceptance,

and no apparent benefit with respect to remorse, and would have
forfeited

capital

the

charge.

opportvinity

to

Petitioner

secure

fails

a

to

conviction

demonstrate

to

a

non

through

his

hindsight arguments that counsel performed deficiently.^^

" Even if it is assumed that Lawlor had a motivating reason to challenge
the
constitutionality of
Virginia's
sentencing
scheme,
there
are
substantial legal questions as to whether "a reasonably competent attorney
would

have

believed

that

the

Apprendi/Ring

cases

established

that

a

defendant who pleads guilty to a capital offense and waives his or her
right to a jury trial nevertheless retains a right to a jury determination
of aggravating factors."
Lewis v. Wheeler, 609 F.3d 291, 309 (4th Cir.
2010).
As explained in Lewis,
"the Ring decision did not clearly
establish or even necessarily forecast that a capital defendant who pleads
guilty and waives his right to a jury trial can insist upon a jury trial
on aggravating factors."
Id. at 310.
Although the timing of the Lewis
case resulted in the Fourth Circuit expressing "no opinion as to what
effect, if any, Blakely [v. Washington, 542 U.S. 296 (2004)] has upon"
this issue, Lewis, 609 F3d. at 310 n.6, substantial questions remain as to
whether Blakely forestalled the analysis in Lewis.
Notably, Blakely
indicates that "[w]hen a defendant pleads guilty, the State is free to
seek judicial sentence enhancements so long as the defendant either
stipulates to the relevant facts or consents to judicial factfinding."
Blakely,

542

U.S.

at

310.

Such

case,

therefore,

does

not

appear

to

squarely address whether it is constitutional for a state to, by statute,
essentially require a defendant to consent to judicial factfinding if he
or she elects to plead guilty to the equivalent of "non-aggravated"
capital murder.
Cf. Gray v. Pearson, No. I:llcv630, 2012 WL 1481506, at
*14-*15 (E.D. Va. Apr. 27, 2012) , vacated on other grounds, 526 F. App'x
331 (4th Cir. 2013)
("Blakely did not so clearly settle the issue

[discussed
counsel]
Bowersox,

in

not

Lewis]

such

to object

to

784 F.3d 468,

472

that
the

it

was

Virginia

(8th Cir.

objectively

unreasonable

sentencing regime.");

2015),

cert,

denied,

[for

Nunley v.

136 S.

Ct.

23

(2015) (concluding that the Missouri Supreme Court did not unreasonably
apply clearly established federal law by rejecting a challenge to a
Missouri statute that prevents defendants who plead guilty to a homicide
offense from having a jury trial on the issue of punishment absent
agreement by the state) ; Mullens v. State, 197 So. 3d 16, 38-39 (Fla.
2016) (noting that courts in multiple states where "defendants who pleaded
guilty to capital offenses automatically proceeded to judicial sentencing"
have held that "Ring did not invalidate their guilty plea and associated
waiver of jury factfinding" because the defendants knew when they pled
guilty that they "fully forfeited their right to a jury trial").
59

Turning

to

prejudice,

even

assuming

both

that

defense

counsel should have challenged Virginia's sentencing scheme and
that

such

a

challenge

would

have

reasons previously stated herein,
in the R&R,

which are adopted,

been

successful,

for

the

and for the reasons discussed

the Supreme Court of Virginia's

prejudice analysis did not amount to an unreasonable application
of Strickland in light of the fact that Petitioner's decision to
proceed

to

acceptance

trial

and

had

no

minimal

apparent

remorse.Additionally,

impact

impact

on

on

his

his

ability

ability

to

argue

to

argue

as to Petitioner's assertion that the

Supreme Court of Virginia's prejudice analysis applies the wrong

standard,

this Court rejects such assertion notwithstanding the

arguably

less

than

precise

directed this Court.

language

to

which

Petitioner

has

Notably, although the state habeas opinion

first indicates that Lawlor fails to demonstrate that "the jury
would have reached a

different outcome,"

the very next sentence

In light of the strategic reasons to proceed to trial in this case, the
Court also questions whether Lawlor can credibly assert, in hindsight, a
reasonable likelihood that he would have opted to plead guilty if counsel
had informed him of the potential to establish that Virginia's sentencing
scheme

was

unconstitutional.

A

review

of

the

record

reveals

that

after

the jury found the statutory aggravating factors and determined that the
appropriate sentence was death, defense counsel argued both acceptance and
remorse to the judge during the subsequent sentencing proceedings, noting

that

Petitioner

"wanted

to

plead

guilty

so

badly

that

he

proposed plea agreement that we offered to the Commonwealth."

A review

of

the

Joint Appendix,

however,

reveals

that

signed

the

JA 13100.

although Lawlor

attempted to plead guilty to "capital murder," the plea agreement he
proposed provided that Lawlor would be sentenced to "life in prison
without the possibility of parole" for both counts of capital murder.
This Court is unaware of any record evidence suggesting that Lawlor would

have been willing to forgo his right to a jury finding in the guilt phase
absent the promise of a favorable outcome in the sentencing phase.
60

concludes that Petitioner "failed to demonstrate that there is a

reasonable probability that

.

would have been different."

at 272-73
assumes
Court

of

yields

Court

the

of

an

standard
same

288 Va.

at 229,

Alternatively,

application
giving

result

Virginia,

discussion.

the result of the proceeding
764 S.E.2d

even if this Court

incorrect standard was applied by the Supreme

Virginia,

probability"

.

Lawlor,

(emphasis added) .

that the

.

by

for

no
the

of

the

correct

deference
reasons

to

the

"reasonable
state

stated by

the Magistrate Judge,

and

the

in

court

Supreme

the

above

The instant claim i s therefore dismissed.
9.

Petitioner's

tenth

Claim X

claim

asserts

that

trial

counsel

rendered ineffective assistance by failing to present available
psychological

testimony

from

defense

expert

during the penalty phase of Petitioner's
Court of

Virginia

either prong of

concluded

that

Dr.

James

trial.

The Supreme

Petitioner failed

the Strickland test

as

to

this

Hopper

to

claim,

R&R found that such analysis was not unreasonable.

satisfy
and the

Petitioner

objects to the Magistrate Judge's consideration of "hypothetical
strategic reasons" when analyzing counsel's performance, objects
to the R&R's characterization of the facts,

finding of a lack of prejudice,

and objects to the

ultimately arguing that,

minimum, an evidentiary hearing is warranted on this issue.

61

at a

Having reviewed the objected-to issues ^

novo,

this Court

agrees with and adopts the R&R's analysis and conclusion that
Petitioner

Virginia

fails

to

demonstrate

unreasonably

standard.

applied

that

either

the

prong

Supreme

of

In further support of the analysis

the

Court

of

Strickland

in the R&R,

the

Court makes the following additional findings.

First,

as

argued by Respondent

in

the

motion

to dismiss

Lawlor's state habeas petition:
Lawlor's
trial
counsel
had
reasonable,
strategic
reasons not to call Dr. Hop[p]er to testify.
After
Dr.
Hopper
evaluated
Lawlor
for
sentencing
and
mitigation purposes, the prosecution obtained their
own evaluation by Leigh Hagan, Ph.D., which was in
turn disclosed to Lawlor.
Resp. Exh. B at
15, JA
2728.
Dr. Hagan concluded:
• "Mr.
Lawlor
has
thoroughly
demonstrated
difficulty related to women."
Id. at p. 15

• "Unfortunately,
as
he
learned
from
his
relationship
with
his
mother,
if
the
female
challenged him, held him accountable or did not
reciprocate with his advances,
he became quite
angry."
Id. at p. 16.
• "When Mr. Lawlor experienced rejection, he often
responded with sudden, unpredictable and serious
violence."

Jan.

15,

further

2014 Mo.
argued

by

Id.

to Dismiss,
Respondent,

"weigh the

value

of

their

significant

risk posed by Dr.

at

64-65

(quoting Exh.

defense

counsel

own expert's
Hagan,"

was

B)
forced

testimony against

and the decision not

As
to

the
to

" These bullet points are merely an excerpt from Dr. Hagan's report, and
a review of the report itself reveals other examples of potential
testimony that would have been harmful to Petitioner's mitigation case.
62

call Dr. Hopper successfully kept the jury from hearing from Dr.

Hagan.

Id.

result,

it is easy to attack defense counsel's decision not to

call

a

at 65.

potential

While,

defense

requires far more.
must indulge a
within

the

that is,

the

witness,

Strickland

standard

("[A]

court

wide

range

of

reasonable

professional

assistance;

the defendant must overcome the presumption that, under

omitted);

the

United States

challenged

action

might

be

(internal quotation marks
v.

Terry,

366

F.3d

312,

considered

and citation
317

{4th

Cir.

{explaining that the difficulty of overcoming the general

presumption

trial

that

strategy"

counsel's

is

"even

conduct

strategic

perceived
counsel

to

omitted).
Strickland

one

benefits

"demanding
against

with

against

when

be

the

defense witness,

the

assessment

perceived

"enormous deference")

Guarding

"might

greater"

involves the failure to call a

a

the

strong presumption that counsel's conduct falls

sound trial strategy.")

is

after an unfavorable

See Strickland, 466 U.S. at 689

circumstances,

2004)

in hindsight,

risks,"

alleged

sound

omission

as such decision

and balancing of
thus

entitling

(quotation marks and citations

equating

unreasonableness

considered

under

"unreasonableness

under

§ 2254(d),"

Court

this

easily concludes that the Supreme Court of Virginia presented a
"reasonable

argument"

in

support

of

its

finding

that

counsel performed within constitutional requirements.
562 U.S. at 105.

As explained by the Fourth Circuit;
63

defense

Richter,

Trial counsel is too frequently placed in a no-win
situation with respect to possible mitigating evidence
at the sentencing phase of a capital case.
The
failure to put on such evidence, or the presentation
of evidence which then backfires, may equally expose
counsel to collateral charges of ineffectiveness.
The
best

course

for

a

federal

habeas

court

is

to

credit

plausible strategic judgments in the trial of a state
case.

Bunch

V.

Thompson,

Accordingly,
not

to

called

949

F.2d

1354,

Petitioner fails

call Dr.
during

Hopper as

the

penalty

1363-64

(4th

Cir.

1991).

to demonstrate that the decision

one of
phase

the

was

nearly fifty

anything

but

witnesses

a

reasoned

strategic choice.^®
Second,
from Dr.

Petitioner's reliance on post-conviction affidavits

Hopper,

demonstrate

and some members of the defense team,

that

the

Supreme

Court

of

applied Strickland's prejudice prong.

Virginia

fails to

unreasonably

In light of the gruesome

nature of the crime, and the other aggravating evidence, as well
Petitioner's objections to the R&R appear to suggest that defense
counsel's decision not to call Dr. Hopper can only be categorized as
strategic if counsel submits an affidavit asserting the same.
While
Petitioner is correct that it is improper to "manufacture excuses for
counsel's decision that he plainly did not and could not have made," a
reviewing court is not required to "confine [its] examination of the
reasonableness of trial counsel's decision to only the literal wording of

his explanation," but rather,
must

be

evaluated

determine

in

the

whether

considered

the

sound

trial

the reasonableness of not calling a witness

context

decision

of

not

strategy.'"

the

to

circumstances

call

Terry,

the

366

at

the

witness

F.3d

at

time

"'might

317

to

be

(quoting

Strickland, 466 U.S. at 689); s^ Bullock v. Carver, 297 F.3d 1036, 1047
(10th Cir. 2002) ("[T]he Strickland decision 'places upon the defendant
the burden of showing that counsel's action or inaction was not based on a
valid strategic choice.'"
(quoting Wayne R. LaFave et al., Criminal
Procedure § 11.10(c)

decision

being

at 715

evaluated

(West 2d 1999)).

involves

counsel's

As noted above,

decision

available defense witness,
the deference owed
"enormous deference."
Terry, 366 F.3d at 317.
64

as

to

not

because the

to

this

call

an

issue

is

as the scope of mitigating evidence already before the jury, the
Supreme

Court

demonstrate
confidence
must

of

a

Virginia's

degree

in

the

withstand

facts

Morton,

is

Petitioner's

Lawlor

sufficient

reasonably

federal

Hopper's

that

failed

to

to

undermine

defensible,

thus

challenge.

collateral

and

In

testimony would have been largely

the Supreme Court of Virginia did not rely solely on

that

upbringing,

prejudice

outcome

concluding that Dr.

cumulative,

of

conclusion

were

introduced

regarding

Lawlor's

difficult

but also cited to testimony from defense expert Dr.

defense

expert

Mary

Fisher

{a

licensed

therapist

and

psychiatric nurse practitioner who treated and diagnosed Lawlor
with

substance

depressive

episodes

coordinator

of

participated.
12377-12390,

question

abuse

dependencies,

or

an

alcohol

See,

e.g.,

12600-02,

Petitioner's

and

and

either

disorder) ,

bipolar

PTSD,

and

the

drug

JA 11971,

program
11979-82,

Although this

contention

that

Dr.

have

been

would

almost

subject

certainly

to
have

called

which

Hopper
Dr.

by

Lawlor

12374-75,

Court does

would

but

the

Dr.

a

witness

defense,

but

would
would

have
have

not
been

only
a

been

"win"

a

"net

to

such

Hagan

win"
a

Hopper

for

the

substantial

degree that confidence in the jury's sentence is undermined.
65

have

prosecution,

rendering it pure speculation to assert that calling Dr.

as

not

Hopper not only

cross-examination,
been

clinical

11985,

12616-19.

presented testimony helpful to the defense.
would

in

major

As to Petitioner's argument in his federal habeas petition
that

Dr.

being

Hagan's

undercut

potential

by Dr.

rebuttal

Hopper's

testimony was

testimony,

it

subject

does

not

to

appear

that such argument was presented in the state habeas petition or
the state rebuttal brief,

by

the

Supreme

However,

Court

and thus i t was not likely considered

of Virginia.^®

29,

at

55-56.

even assuming that this Court may permissibly consider

such recharacterized claim at

vague

ECF No.

post-trial

assertion

this

that

time,

some

of

Dr.

Hopper's

somewhat

Hagan's

opinions

Dr.

were stibject to being undermined by effective cross-examination
is

insufficient

to

undercut

the

reasonableness

Court of Virginia's prejudice analysis
sentencing phase

and mitigating,
See

Kimmelman

essence

of

to
v.

an

unprofessional

evidence

that

include

the

Morrison,

verdict

gruesome

477

U.S.

errors

so upset

rendered

the

the

suspect.")

the

in light of all

presented,

ineffective-assistance

defense and prosecution that

the

was

of

claim

of

the

both aggravating

nature

365,

Supreme

of

is

crime.

(1986)

374

the

("The

that

counsel's

adversarial balance between

trial was

(emphasis

rendered unfair and

added)

(citations

omitted).

Petitioner did argue to the state habeas court that Dr. Hagan's
testimony would not have been particularly damaging, but does not appear
to argue that defense counsel was deficient for failing to provide Dr.
Hopper with Dr. Hagan's report at an earlier stage in the proceedings, or
failing to explicitly direct Dr. Hopper to "identify errors" in Dr.
Hagan's clinical judgment; nor did Petitioner assert that Dr. Hopper would
have undermined the analysis behind Dr. Hagan's conclusions because it was
purportedly "replete with errors."
66

Petitioner

Virginia's
finding

also

analysis

regarding

with the

contends

was

the

predicated

whether

other evidence

that

Dr.

on

Supreme

an

Hopper's

in mitigation.

Court

incorrect

opinions
This

of

factual

"conflicted"

Court

adopts

the

R&R's characterization of such factual determination as only one

small

part

However,

of

even

the

if

Supreme

this

"unreasonable factual

Court

Court

of

assumes

finding":

(1)

Virginia's

that

such

finding

such finding

the performance prong of Strickland,

and thus,

analysis.
was

an

is limited to

does not undercut

the reasonableness of the Supreme Court of Virginia's prejudice

analysis;
is

and

properly

factual

{2)

to the extent the performance prong analysis

characterized

finding,

such analysis,

that

professional

deference"

owed

Cir.

decision

facts"

to

(explaining

was

based

on

that

performed
assistance

counsel's

See Austin v.

2014)

on

an

unreasonable

novo review

and for all the same reasons set forth

concludes

counsel

reasonable

witness.

based

performs its own independent and ^

independently

demonstrate

being

this Court alternatively gives no deference to

of counsel's performance,

above,

as

an

outside
in

the

light

decision

Plumley,

that

Petitioner

not

wide

of
to

"the

unreasonable

State

range

the
call

565 F. App'x 175,

when

fails

to
of

"enormous
a

defense

184-85

Supreme

determination

(4th

Court's
of

the

the federal court considers the claim "under a purely de

novo standard,

owing no deference
67

to the State Supreme Court's

decision").

For

these

reasons,

Lawlor's

tenth

claim

is

dismissed.

10.

Petitioner's

eleventh

Claim XI

claim

asserts

that

the

trial

court

unconstitutionally excluded the testimony of defense expert Dr.

Mark

Cunningham

prison.
was

such

Petitioner's

risk

Petitioner's claim has two siabparts:

admissible

statutory

regarding

to

rebut

aggravating

evidence

was

the

factor

of
(a)

prosecution's

of

admissible

as

future

violence

such evidence

evidence

dangerousness;

mitigation

in

on

the

and

(b)

evidence.

The

Supreme Court of Virginia addressed and rejected both subparts

of

this

claim on direct

appeal,

appropriately

recognizing

two discrete potential uses for the disputed evidence.
§ 2254 petition readdresses both subclaims,

a

lengthy analysis of each,

the

Lawlor's

and the R&R includes

explaining why the Supreme Court of

Virginia's decision was not unreasonable or contrary to clearly
established federal

law.

Petitioner's objections challenge the

Magistrate Judge's analysis on both subparts, asserting that the
Supreme

Court

of

Virginia

made

unreasonable

factual

" While oversimplifying the issue, the crux of the dispute at trial was
as follows:
for subclaim (a), whether Dr.
Cunningham had evaluated
Lawlor's future risk of dangerousness to society as a whole (permissible)
or had limited his evaluation to risk of dangerousness to prison society
(deemed impermissible); and as to subclaim (b), whether Dr. Cunningham had
evaluated
Lawlor's
character/personal
traits
and
personal
history
(permissible) or had merely evaluated statistics based on factors that are
unrelated, or largely unrelated, to Lawlor's character/personal traits
(deemed impermissible).
68

determinations and unreasonably applied Supreme Court precedent.

Having conducted a ^

novo review, this Court adopts the R&R's

detailed analysis on this issue, with the following additional
discussion.

First,

appear

as to subclaim

to

assert

unreasonable

factual

Magistrate Judge
ECF

No.

that

53,

at

(a),

the

Supreme

findings,

did not

However,

obligation

to

recount

suggests,

to

"acknowledge"

in

determining

whether

all

time

the

was

Petitioner

fails

improperly

characterized

a

of

to

testimony

while

but

the

substantial

Dr.

the

facts

of

such

as

Petitioner

asked

by

the

jury

testimony

when

limitation

the

of

Magistrate

testimony,

testimony

12453-54,

12516

(reflecting

12460,

the

such

Moreover,

Judge

because

was

plainly

the witness did in fact present a

portion of his opinion regarding future dangerousness.

12448,

had no

or,

Cunningham's

portion

the

facts.

Judge

permissible.

that

made

that

relevant

Magistrate

court's

demonstrate

Virginia

argues

Cunningham's

trial

excluded by the trial judge,

of

questions

Dr.

of

instead

the

constitutionally

to

Court

consider all

31-32.

subsequent

Petitioner's objections do not

12484-94,

trial

12496-504,

judge's

12542;

See JA

see also

acknowledgement

that,

notwithstanding the numerous objections and court rulings, Dr.

Cunningham had "given his opinion," which the judge
characterized as "a very good opinion") .
69

Second,

as

to

the

same

subclaim,

Petitioner's

objection

fails to specifically highlight faults in the legal analysis in
the

R&R,

instead

merely

citing

back

filings asserting that he had a

to

his

earlier-in-time

right to present the disputed

testimony regarding Lawlor's future dangerousness in the prison

environment.

A ^

novo

review,

however,

only

confirms

the

Magistrate Judge's finding that the Supreme Court of Virginia's
interpretation

of

the

definition

of

"society,"

as

defined

by

Virginia statute, did not lead to an unreasonable application of
clearly established Supreme Court precedent.
Petitioner

points

to

no

Supreme

To the contrary.

Court

case

establishes that i t is unconstitutional for a
a

state

created

dangerousness"
pose

in

553,

Virginia

Morva

law

because

concerning

he

the

acts

on

the

society as

v.

Com.,

278

future

and

the

commit

would,"

a

state to interpret

factor

danger
whole,

Va.

329,

a

of

"future

defendant

rather

would

than prison

349-50,

683

dangerousness

of

ultimate

trial

violence

focuses

circumstances

the

criminal

defendant's

of

aggravating

clearly

S.E.2d

(explaining in detail that the question under

history

"could

whether

only

regarding

and

defendant

criminal

to

(2009)

defendant's

but

focus

See

564-65

offense,

to

future

the

society.

statutory

that

question

acts

courts

diminished

in

the
70

of

is

violence

"should

due

not
in

whether
the

exclude

to

the

defendant's

opportunities

future

on

the

a

future

evidence

to

commit

security

conditions in the prison")
Petitioner

was

not

opportunity

to

rebut

supporting a

(citation omitted).

denied

and

his

Stated simply,

constitutionally

explain

the

protected

prosecution's

finding of future dangerousness

evidence

(such as the vile

nature of the murder, or details regarding Lawlor's past crimes)
but

rather,

he

was

relevant

question

confined

in

a

denied

to

ask

Virginia

the

opportunity

whether

prison

Lawlor,

with

its

to

if

"recast"

at

the

all

concomitant

times

security

conditions, would likely pose a future danger to prison society.
Lawlor therefore fails to demonstrate that the Supreme Court of

Virginia

"unreasonably"

applied

federal

law

in

denying

such

claim.

Third,

as

to

unconstitutional
issue

turns

Petitioner's

exclusion of
on

the

subclaim

general

critical

(b) ,

which

asserts

mitigation evidence,

distinction

between

the

the
the

impermissible exclusion of evidence regarding a defendant's past
behavior in
pose

a

jail,

danger

which supports

if

spared

Carolina,

476 U.S.

Virginia

concluded

that

seeks

to

1,

5

was

(but

incarcerated),"

(1986),

the

demonstrate

the claim that he

Skipper v.

absence

of

exclusion

of

evidence

dangerousness

prison community based on statistical models considering,
other

factors,

affiliation.

a

South

from what the Supreme Court of

permissible

the

"would not

defendant's

age,

education,

and

to

the

among
gang

As recently explained by the Fourth Circuit in a
71

published

limited

opinion,

to

the

evidence

holding

in

regarding

the

while incarcerated; accordingly,
right

upset

defendant's

"[a]

a

Zook,

state

821

1068

court's

F.3d 517,

(2017)

attributes

the

model

others,

to

in

fulfill

(4th Cir.

2016),

cert,

Here,

defendant

created
attempt

by
to

and

predict

the

requirement

that

at

350,

2d at

683

S.E.

884.

2d at

the

Virginia's

similarly
was

not

Zook,

them

S.

a

of

the

past behavior does

be

and background'
Lawlor,

into

attributes

probability

'peculiar to

the

under Morva,

278

285 Va.

at

251,

738

Consistent with the Fourth Circuit's analysis

of the federal habeas petition filed in Morva,
of

137

set of objective

comparable

evidence

565."

Morva v.

denied,

inserting

compiling

the

the Supreme Court of

"[m]erely extracting a

defendant's character, history,

S.E.

behavior

determining

nonindividualized evidence."

defendant's future behavior based on others'

Va.

past

and

defendant's constitutional

discretion

(citation omitted).

about

statistical

broad

526

Virginia concluded that

not

"narrow"

and the circumstances of his offense does not

admissibility of other,

from

was

to present mitigating evidence related to his character,

criminal history,

Ct.

Skipper

determination

situated

inmates"

unreasonable

under

that

was

821 F.3d at 526.

72

"statistical

inadmissible

Supreme

the Supreme Court

Court

in

evidence

Lawlor's

precedent.

of

case

Morva

v.

This Court similarly rejects Petitioner's apparent factual
challenge

to

the

R&R

and

to

the

Supreme

Court

of

Virginia's

characterization of the categories of excluded evidence as not

being based on Lawlor's personal character.
argument

can

employment
evidence

be

made

history

that

or

documenting

certain

ongoing

factors,

contact

Lawlor's

While a reasonable
such

with

personal

his

as

Lawlor's

family,

character,

were

because

Dr.

Cunningham sought to testify about these factors only to compare
such
other

that
facts

facts

to

statistical

unrelated

inmates,

such factors
peculiar

to

As

Lawlor's

at

categorizing

is

also

285 Va.

as

behavior of

reasonable

the

found

by

at 251-54,

disagreement

issue,

a

the

statistical data points

character,

Lawlor,

reasonable

"characteristics"

there

were merely

Court of Virginia.
883-85.

models

could

Supreme

argument

and not

the

Supreme

738 S.E.

occur

Court

of

on

2d at
certain

Virginia's

findings were not an unreasonable determination of the facts,

controlling Supreme Court precedent.^®
Claim XI

For all of these reasons,

i s dismissed.

11.
Petitioner's

twelfth

Claim XII

claim

asserts

erroneously and unconstitutionally:
officers,

or

as well as a

(a)

third individual,

that

the

trial

court

precluded two probation
from providing hearsay

Even if the state habeas court erred in its application of Morva, 278
Va. at 349, such claim of error is not cognizable on federal habeas review
unless the error rose

to the level of a

73

federal

constitutional violation.

testimony

about

required

Petitioner's

Petitioner

evidence; and (c)
positive

to

history

testify

in

of

sexual

order

to

abuse;

admit

(b)

mitigating

excluded testimony about Petitioner's life and

relationships

with

friends

and

family.

The

Supreme

Court of Virginia rejected all of these claims on direct appeal,
and the Magistrate Judge's R&R carefully analyzes each subpart

of Petitioner's claim and recommends denying each subpart.

After
portions

performing

of

Magistrate

a

^

novo

review

this

Court

adopts

analysis.

As

Claim XII,

Judge's

Magistrate Judge

to

of
each

the

correctly concluded that

(1979),

facts

in

and associated precedent,

the

record

reliability for
Lawlor

to

fail

to

to

demonstrate

a

officers

and

an

subpart

of

subpart,

the

the

the Supreme Court of

Georgia,

Lawlor's

442 U.S.

case

sufficient

the disputed hearsay evidence

probation

objected-to

first

Virginia did not unreasonably apply Green v.
95

the

as

the

indicia

of

self-reported by

individual

performing

court-ordered alcohol and drug dependency assessment.

a

In short,

the Supreme Court of Virginia appropriately concluded,

based on

the

F.3d

344

not

fit

{4th

guidance
Cir.

within the

set

1996),

forth

in

that

the

Buchanan v.
facts

of

Angelone,

Lawlor's

103

case

"narrow exception recognized by Green"

do

because,

in

this case, Virginia's hearsay rule was invoked to bar statements
that "lack the inherent reliability of the statement excluded in
Green."

Id.

at

349.

Specifically,
74

the

Supreme

Court

of

Virginia noted Petitioner's failure

to cite any authority for

the proposition that statements made by a criminal defendant to
a

probation officer,

drug

assessment,

circumstances,
Lawlor,

or to a

"can

be

person performing a

relied

upon

as

court-ordered

truthful

under

the

rather than being self-serving or manipulative."

285 Va.

at 242,

court engaged in a

738 S.E.2d at 878-79.

Similarly,

that

reasoned analysis describing the difference

in reliability between a statement made to a physician "for the

purpose of medical diagnosis or treatment"
to

receive

and

appropriate

statements

incarcerated,

counselor
which

motion

and

made

by

an
to

end-goal

often

the

vital

link

objections

to

Supreme Court precedent

rendering honesty paramount)

incarcerated,

individual

(the

lacks

treatment,

(the end-goal being

a

probation

being

to

the

to

soon

officer

"minimize

to
or

be
drug

to

his

time",

Petitioner's

honesty).

R&R fail

or

§ 2254

point

to

existing

that would render the Supreme Court of

Virginia's application of Green unreasonable as Lawlor does not

cite to any subsequent cases extending the holding of Green to
evidence of a

defendant's historical abuse

self-reported

to

performing

an

investigation

criminal case.

See Morva v.

that

when

Supreme

the

Court

a

probation

"precise
remain

officer

or

or

assessment

Zook,

contours"

unclear,

(sexual or otherwise)

of

right
courts

individual

associated

821 F.3d at 524

state
75

other

with

a

(explaining

recognized
necessarily

by

the

enjoy

"broad discretion"

in adjudicating habeas claims and

Supreme

not

Court

has

presented by
[cannot]

yet

confront ted]

[a particular]

be

contrary

to

case,

any

the

specific

question

state

the

holding

court's

decision

of

the

Supreme

(internal quotation marks and citations omitted)
original);

White

(explaining
establish

that
an

precedent,

comprehended

fairminded

Woodall,

"even

134

'clear

"unreasonable

which

justification

omitted).

v.

instead

that

in

S.

there

an

law

disagreement")

will

a

error

beyond

(quotation

1702

not
of

ruling

Court")

(alterations in

1697,

application"

was

existing

Ct.

error'

requires

"when the

(2014)

suffice"

Supreme

"so

well

to

Court

lacking

in
and

possibility

any

understood

for

marks

and

citations

The reasonableness of the Supreme Court of Virginia's

analysis is further bolstered by the Fourth Circuit's conclusion
in Buchanan that

the narrow exception recognized in Green was

recognized in a case where the excluded hearsay "strongly tended
to show that the defendant was innocent,"

at issue in Lawlor's case,
for

the purpose of

whereas the statements

and in Buchanan,

providing additional

"were offered only

support"

for

admitted

mitigating evidence relevant to the defendant's emotional state.

Buchanan,

Branker,
while

the

103

305

F.3d

F.

Fourth

at

App'x

349

926,

Circuit

(emphasis

added);

938

(4th

Cir,

"might

have

decided

reliability differently were

[it]
76

presented

cf.

2009)

.

(noting

the

.

Davis

v.

that

question of

. ^

initio,"

the North Carolina Supreme Court cannot be deemed "unreasonable"
for holding that the facially "self-serving" letters written by
the

defendant

to

his

mother

while

he

was

incarcerated

did

not

meet the reliability standard established in Green).
Alternatively, as discussed in detail in the R&R, the Court
concludes

that

excluded,

even

if

the

disputed

evidence

the record demonstrates that such error was

in light of the testimony that was introduced.
argues
abuse

would

Petitioner

R&R

improperly
"harmless"

While Petitioner

in his objections that the excluded testimony of sexual
have

been

more

testimony that was admitted,

rose

was

fails

to the

to

powerful

than

the

sexual

abuse

in light of the record as a whole.

demonstrate

that

any

level necessary to affect his

error

that

occurred

substantial

rights.

83-87.

As to the second and third subparts of Petitioner's claim,
this

Court

adopts

recommendation of

unlikely

that

subclaims

in

objections

to

a

the

Magistrate

dismissal.

^

novo

light
the

of

review

Court

was

Petitioner's

Magistrate

the Court has performed a

The

Judge's

Judge's

notes

even

that

it

necessary

broad
findings.

de novo review,

analysis

and

and

appears

on

these

conclusory

Nevertheless,

and adopts

in full

As explained in the adopted R&R analysis, consistent with the ruling of
the Supreme Court of Virginia on direct appeal,
Petitioner's claim
asserting that the trial court committed error by referencing Lawlor's
failure to testify is rejected because the disputed comments were made
77

the portions of
fails

to

the R&R addressing these claims as

demonstrate

that

the

Supreme

Court

Petitioner

of

Virginia

unreasonably applied Supreme Court precedent.
12.

Petitioner's

Claim XIII

thirteenth

claim

penalty phase of the trial,

unreasonably

asserts

that,

during

the

defense counsel was ineffective by

"opening the door"

to damaging testimony elicited

by the prosecution from Lawlor's ex-fiancSe {Ms. Godlove) during
her redirect testimony.

that

Petitioner

light

of

the

during Ms.
she

failed

demonstrate

testimony

"prejudice"

adduced

Godlove's direct testimony,

probability

during

of

redirect

changing

determination.
of

to

damaging

provided

Court

The Supreme Court of Virginia concluded

the

did

Virginia's

of

outside

the

have

the

Strickland

prejudice

a

reasonable

jury's

sentencing

analysis

was

not

Petitioner objects to such finding on the basis

that it fails to recognize that while Ms.
direct

prosecution

the additional testimony
not

outcome

the

in

The Magistrate Judge concluded that the Supreme

unreasonable.

on

by

because,

regarding

presence

of

her

efforts

the

jury.

to

Godlove had testified
protect

This

Court

herself

similarly

from

rejects

Petitioner's footnote reference in his federal habeas petition to similar
comments made by the prosecutor.
The first cited comment was also made

outside the presence of the jury, and while the second comment was made in
the jury's presence, it was deemed defaulted by the Supreme Court of
Virginia,
Petitioner

lone

Lawlor,
has

comment,

285

neither

when

Va.

at

246

overcome

considered

n.23,

such

in

its

S.E.2d
nor

context,

constitutional error for which habeas r e l i e f
78

738

default

at

881

n.23,

demonstrated

rises

to

i s warranted.

the

and

that

such

level

of

a

Petitioner,
of

she did not

violence,

or

testify about multiple prior instances

describe

Lawlor's

specific

displays

of

aggression.

Having
Court

reviewed

adopts

the

the

objected-to

analysis

and

findings

recommendation

Although Petitioner disagrees with the

Court of Virginia,
as

well,

Petitioner's

unreasonable

unreasonable

emphasized

novo,

this

the

R&R.

in

findings

of

the Supreme

and invites this Court to disagree with them
arguments

state court's resolution of

an

^

this

application

determination

herein,

to

claim,

of

of

this

fail

that

on the merits,

federal

the

Court

demonstrate

law

facts.

cannot

involved

and/or

As

accept

the

an

repeatedly

Petitioner's

invitation to disagree with the Supreme Court of Virginia,

even

if

this

it

was

inclined

to

do

so

{which

it

is

not) ,

Court "may not issue the writ simply because

[it]

because

concludes in

its independent judgment that the relevant state-court decision
applied

clearly

established

incorrectly," Bell,
it

do

so

different

U.S.

could

at

"the

[factual]

301

in

236 F.3d at 158
federal

as

law

habeas

to

question,

omitted).

the
the

court

236 F.3d at 158; Wood,

Rather,

application
state

of

court

558 U.S.
79

erroneously

(citation omitted),
would

conclusion in the first

(citation

disagree

findings
Bell,

when

federal

have

instance,"

if

or

decision

at 301.

nor may

reached

Wood,

reasonable

law

Here,

or

a

558

minds

the

factual

must

stand.

in light of

all

of

the

evidence

mitigating,
Godlove,

to

but

in the

include

all

dangerousness,

trial

record,

only

the

not

other

testimony

Supreme

conclude

unreasonably

the

that

both aggravating and

direct

relevant

Court
the

of

testimony of

to

Lawlor's

Virginia

exclusion

of

future

did

Ms.

Ms.

not

Godlove's

"redirect" testimony would not have had a reasonable probability

of changing the outcome of the jury's sentencing determination.'"'
Cf.

Hedrick v.

defendant

court

asserts

must

443 F.3d 342,

349

the

evidence

in

to

2006)

his

("When a

sentence"

aggravation

available mitigating evidence.'"

against

the

the

(quoting Wiggins,

at 534)).

In addition to the above finding,
to

(4th Cir.

prejudice with respect

"'reweigh

totality of
539 U.S.

True,

warrant

denial

of

Petitioner's

which is alone sufficient
habeas

claim,

separately finds that, as argued by Respondent,
to demonstrate a
testimony

(Ms.

the

Court

Petitioner fails

legal bar to the admissibility of the disputed
Godlove's

redirect

testimony)

but

for

defense

To the extent that Petitioner's assertion of prejudice is related to
the jury's finding of the aggravating factor of "future dangerousness,"
Petitioner's

claim

is

insufficient

to

warrant

relief

because

Lawlor

was

separately found to be "death eligible" based on the jury's independent
finding regarding the statutory aggravating factor of vileness.
To the
extent that the prejudice Petitioner asserts is directed at the jury's
balancing of mitigating and aggravating factors in order to determine that
"death" was the appropriate sentence, the state court reasonably concluded
that there is no Strickland prejudice because: (1) as discussed above, in
light of the entirety of the aggravating and mitigating evidence, the
disputed evidence is not of sufficient import such that its admission was
reasonably likely to impact the outcome of the penalty phase; and (2) as
discussed in more detail below, Ms. Godlove's redirect testimony was
otherwise admissible.

80

counsel "opening the door" during cross-examination.

in support of Respondent's motion to dismiss,
asserts

that

the

questions

asked

on

As argued

although Lawlor

redirect

were

only

permissible because the door had been opened by defense counsel,
Petitioner "fails to articulate any bar to such questions"

light of
Godlove

the
to

rebuttal

fact
rebut

that

Lawlor's

mitigation

ECF

29,

case."

notwithstanding

"the prosecutors

defense

No.

sentencing hearing"

seeking a mistrial,

72.

side-bar

allowing the re-direct would create a
unreliable

evidence"

at

counsel's

could have

recalled

during

its

Accordingly,

argument

that

"constitutionally

and/or his

in

.

.

.

subsequent arguments

because the challenged testimony could have

Lawlor's § 2254 Petition also does not cite to precedent supporting the
assertion that this evidence was necessarily barred on redirect even if
the door had not been "opened."
Although, typically, the scope of
redirect is constrained by the scope of cross, a trial judge is afforded
latitude in this arena as the judge may determine the "mode and order of
interrogating witnesses . . . so as to (1) facilitate the ascertainment of
the truth,

[and/or]

(2)

avoid needless consumption of time

.

.

.

."

Va.

Sup. Ct. R. 2:611(a)
(emphasis added).
While the Virginia Rules of
Evidence had not been adopted at the time of Lawlor's trial, such rules
were "adopted to implement established principles under the common law and
not to change any established case law rendered prior to the adoption of
the Rules."
Va. Sup. Ct. R. 2:102 (emphasis added).
Accordingly, if the
door had not been opened, and the prosecution sought to pursue the same
line of questioning on redirect, the trial judge would likely have been
acting within his discretion to allow such questioning at that time rather
than requiring the prosecution to wait until its rebuttal case to
introduce

precisely

the

same

admissible

testimony.

Cf.

3

Grim.

Prac.

Manual § 87:2 (noting that "under Fed. R. Evid. 611(a) and similar state
rules the judge has broad discretion over the extent and scope of
redirect," and that although a "question that one forgot to ask during the
original examination is not proper fodder for redirect . . . the judge,
under broad discretionary power to vary the normal order of proof, may
permit the party to bring out a matter that is relevant and, through
oversight, the lawyer failed to elicit"); 81 Am. Jur. 2d Witnesses § 684
("The scope of a

redirect examination is in the discretion of

court").
81

the trial

been presented by
Petitioner
its

fails

admission

the

to

at

prosecution during

demonstrate

an

earlier

its

rebuttal

Strickland prejudice

time

due

to

case,

based on

defense

counsel's

strategic efforts to link Lawlor's prior anger issues with his
alcohol and/or drug abuse.Petitioner's thirteenth claim is
therefore dismissed.

13.

Petitioner's

fourteenth claim asserts

unconstitutionally
asserting

during

Claim XIV

misled
the

the

that the prosecution

sentencing

penalty phase

that

jury

by

Petitioner

wrongly

raped

the

victim as contrasted with asserting that Lawlor had attempted to
rape the victim.
Petitioner

Because such claim is procedurally defaulted,

asserts

that

defense

counsel

was

ineffective

for

unreasonably failing to object to the prosecutor's penalty phase

statements.
Petitioner's

Petitioner

The

Supreme

direct

claim

failed

to

Court
was

of

Virginia

procedurally

overcome

such

concluded

defaulted

default

by

and

that
that

demonstrating

In light of the fact that the prosecution could have introduced such
evidence in its rebuttal case,
even assuming that defense counsel
performed a less than complete pre-trial investigation into Ms. Godlove's
prior statements, counsel was also not constitutionally deficient for
pursuing the defense strategy of trying to undercut the strength of Ms.
Godlove's direct testimony through cross-examination seeking to elicit
favorable testimony linking Lawlor's prior misconduct to his alcohol or
drug abuse.
Although, in retrospect, counsel arguably wandered into
somewhat dangerous waters through such questioning, to the extent that the
negative rebuttal testimony was already subject to being introduced by the
prosecution, counsel's decision to ask the questions that purportedly
"opened the door" does not rise to the level of constitutionally deficient
performance.
82

Strickland prejudice.

The Magistrate Judge concluded that the

Supreme Court of Virginia's

finding

of procedural default and

application of Strickland's prejudice prong were both reasonable
and

consistent

Magistrate

Judge

performance

was

object

asserts

clearly

established

independently

prong

specifically
instead

with

not

to

that

concluded

did

not

finding,

default

Judge

The

Strickland's

Petitioner

procedural

Magistrate

law.

that

satisfied.

the

the

federal

but

erred

as

to

both

finding,

and

prongs of the Strickland analysis.

This

Court

adopts

the

procedural

default

having considered the objected-to portions of the R&R ^
this Court further adopts and approves
in

the

R&R.

objection

First,

that

penalty phase,

defense

while

could

advances

have

such objection was

of

fact

made

Considering

the

time,

that

rape,
this

the

concluded that

colorable

during

the

constitutionally deficient

same

jurors

that

had

found

guilty of capital murder in the course of either a
attempted

a

the

he fails to establish that counsel's decision not

to make
the

the Strickland analysis

Petitioner

counsel

novo,

were
matter

sitting
from

likelihood

on

the

defense

that

a

Petitioner

rape,

penalty-phase

counsel's

juror

in light

who

or an
jury.

perspective

had

at

previously

Petitioner was guilty of only capital murder in

the course of an attempted rape would have been "confused"

into

believing that an actual rape occurred merely by the phrasing of
83

the

prosecutor's

questions

to

witnesses,

or

closing, is both remote and speculative/^
adopts

the

Magistrate

Strickland's

performance

F.3d

1336,

1349

Judge's
prong.

(4th Cir.

during

This Court therefore

independent
Cf.

1996)

arguments

Bennett

analysis

v.

of

Angelone,

92

(addressing defense

counsel's

failure to object to the prosecution's references to "notorious
and grisly crimes not at issue," and explaining that even though
such

comments

prejudices

.

objecting

to

tactic,"

as

"risked

.

.

confusing

the

jury

and

[a]s other courts have noted,

avoid

irritating

the

jury

is

a

arousing

its

refraining from

standard

particularly during the penalty phase of a

trial

death case

"counsel may very well conclude that their best approach is

to avoid appearing contentious").

Second,

the

Court

adopts and approves

the portion of

the

R&R concluding that the Supreme Court of Virginia did not make
unreasonable

results

from

factual

an

findings,

nor

unreasonable

reach

application

a

conclusion

of

that

Strickland's

prejudice p r o n g I n short, the burden remains on Petitioner to

To the extent Lawlor's assertion of error is grounded in the suggestion
that the references to "rape" were far more egregious than attempted rape,
i t must be reiterated that, in this case, even if Petitioner did not rape
the victim, the physical evidence demonstrated that the "lessor" offense
involved beating the victim to death by striking her 47 times with one or
more blunt objects, while she fought to defend herself, during the course
of an attempted rape that involved Petitioner removing the victim's
underwear, pushing up her bra, possibly touching or licking her breasts,
and ejaculating on the victim's body.

This Court acknowledges that the manner in which the Supreme Court of
84

demonstrate
but

for

a

the

"reasonable
admission

probability"

of

the

of

a

different

now-challenged

outcome

statements,

and

Petitioner's hindsight speculation that certain jurors who had
decided guilt on an "attempted rape"

finding "could have" been

confused by the prosecutor's penalty phase statements falls far
short of the necessary showing.
that

a

juror

was

Moreover, even if it is assumed

"confused"

by

the

prosecutor's

comments.

Petitioner fails to carry his ultimate burden to establish that
such

confusion

outcome of

had

a

reasonable

the penalty phase.

probability

of

changing

For these reasons,

the

the instant

claim i s dismissed.
14.

Claim XV

Petitioner's fifteenth claim asserts that:

"vileness"
found

by

statutory
the

jury

aggravating

without

a

factor

unanimous

was

(a)

the Virginia

unconstitutionally

agreement

as

to

distinct vileness element was present in this case; and
vileness

aggravating

factor

is

unconstitutionally

Virginia phrased the Strickland prejudice test,

which

(b)

vague.

the
The

in its final sentence of

the analysis of state claim XIII(B) and XIII(C), provides an opening for
Petitioner to attack the finding because the opinion indicates that
Petitioner failed to demonstrate that the result of the proceeding "would
have

been

different."

Lawlor,

288

Va.

at

247,

764

S.E.2d

at

284.

However, the Supreme Court of Virginia's opinion had previously stated the
correct "reasonable probability" Strickland prejudice standard more than
ten times, and therefore,
the challenged phrasing is insufficient to

demonstrate an unreasonable application.
Moreover, even if the Supreme
Court of Virginia applied an incorrect standard, and this Court gave such
ruling no deference, this Court's independent application of the correct
"reasonable
probability"
standard
unquestionably
yields
the
same
conclusion—Petitioner fails to carry his burden to demonstrate Strickland
prejudice.
85

Supreme

Court

controlling
Magistrate

of

Virginia

Virginia
Judge

Virginia's

concluded

precedent

thereafter

analysis

subclaim

asserting:

the

amount

not

(a)

is

(1)

to

that

in conflict

failed

to

appeal

that

claims.

Supreme
an

The

Court

of

unreasonable

Petitioner objects to

that the analysis in the R&R as to
with Ring v.

analysis in the R&R as to subclaim
law

both

that

application of Supreme Court precedent.
such finding,

direct

foreclosed

found

did

on

analyze

(b)

the

Arizona;

and

(2)

the

relies on pre-Ring case

constitutional

principles

established in Ring and subsequent Supreme Court cases.

Having

conducted

hereby

adopts

a

^

the

novo

review

analysis

of

contained

this
in

claim,

the

R&R

the
in

Court

full,

with

the

following additional analysis.
Petitioner's objection to the R&R as to subclaim (a)

on

the

following

makes

an

controlling

increase

in

a

constitutional

defendant's

contingent on the finding of a fact,
State

labels

doubt."

rule

first

was

Ring,

it-must
536

U.S.

violated

word of

in

such

habeas arguments,

be

found
at

this

legal

by

602.

case,

"If

authorized

a

State

punishment

that fact-no matter how the
a

jury

Lawlor's

however,

standard.

Virginia law does

rule;

relies

beyond

a

reasonable

contention that

overlooks

Contrary

to

the

such

very

Petitioner's

not make an increase

in a

defendant's authorized punishment from life to death contingent
on the finding of "depravity of mind,"
86

"aggravated battery," or

"torture," but instead makes it contingent on a jury's unanimous

finding of the
the

"aggravating factor of vileness,

defendant's

horrible

587

or

S.E.2d

actions

inhuman.'"

532,

541

Stated differently,
mind,
of

that

'outrageously

Jackson v.

(2003)

would

Com.,

(quoting

pursuant

aggravated battery,

vileness

be

to

Virginia

see Richardson,

require

law,

separate

(such as a
on which

find

juror

423,

§

434-35,

19.2-264.2).

" [d]epravity of

proof

[that]

rather

make up

are

[the]

(first alteration added)

526 U.S.

elements

813,

817

(1999));

of

a

criminal offense

such jury need not always agree

facts"

disagreement

but

(explaining that while a federal

the

"threat of force"),

"underlying brute

permitting

Id.

United States,

526 U.S. at 817

jury must unanimously

Va.

vile,

and torture are not discrete elements

of vileness.

(quoting Richardson v.

wantonly

Code

'several possible sets of underlying facts
particular element'"

or

266

Va.

which requires

as

make
to

up

such

whether

element,

the

"means"

thus
of

making the threat was through using a knife or using a gun); see
also Johnson v.

Fankell,

520 U.S.

911,

916

"fundamental to our system of federalism"

interpretation of

[a state]

statute

by

claim,

Court

of

Virginia

in

denying

(noting that

is the fact that "the

[that

Court would be binding on federal courts").
Supreme

(1997)

state's]

Supreme

As relied on by the

Lawlor's

state

habeas

the Supreme Court of Virginia recently concluded that its

prior holding in Jackson

"is unaffected by Ring."
87

Prieto v.

Com. ,

283

Va.

149,

180,

721

S. E. 2d

484,

503

Petitioner's § 2254 motion and associated filings,

objections to the R&R,
interpretation of
that

must

be

unreasonable

including his

fail to demonstrate that Virginia's own

Virginia

made

(2012).

law defining the

unanimously

application

of

by

the

statutory

jury

finding

amounts

clearly

established

as

subclaim

Supreme

to

an

Court

precedent.

Petitioner's

objection

to

(b)

advances

a

conclusory one-sentence objection asserting that the Magistrate
Judge erred by relying on Fourth Circuit and Virginia precedent
upholding the constitutionality of Virginia's vileness factor as

against a vagueness challenge because such case law was decided
prior

to

Ring

principles

explain

set

how

and
forth

the

failed
in

Ring.

holding

Petitioner's

conceptually

grounded

vagueness.

conclusory

in

objection

to

analyze

the

Petitioner,

in

Ring

distinct
Even

warrants

^

has

constitutional

however,

any

relevance

constitutional

assuming

novo

fails

that

review,

to

to

challenge

Petitioner's

such

review

reveals that the Supreme Court of Virginia did not unreasonably
apply clearly established Supreme Court precedent in concluding

that

Virginia's

vileness

aggravating

88

factor

is

not

unconstitutionally

vague.For

these

reasons,

Petitioner's

fifteenth claim i s dismissed.

15.

Claim XVI

Petitioner's sixteenth claim asserts that the penalty-phase

jury

instructions

unconstitutionally

biased

jurors

towards

a

sentence of death and that appellate counsel was ineffective for
failing to preserve this claim.

Petitioner does not object to

the analysis and/or recommendation set forth in the R&R on this
issue.

Having conducted a

review for

clear error,

this

Court

adopts and approves the analysis and conclusion set forth in the
R&R as to Claim XVI,

and such claim is dismissed.
16.

Claim XVII

Petitioner's seventeenth claim asserts that the trial judge

violated

Lawlor's

constitutional

rights

when

he

considered

Petitioner's pre-trial silence and defense strategy at trial as
part

of

the

judge's

death sentence.

sentencing

determination

To clarify,

jury

received

not

to

set

aside

Lawlor's

Petitioner's claim is not that the

improper

instructions

of

law or

that

the jury improperly considered Lawlor's silence/defense strategy
when imposing a

that

the

sentence of death;

judge's

rather.

discretionary decision

Petitioner's claim is

not

to

set

aside

the

As noted previously, the jury also returned a unanimous finding against
Lawlor on the statutory aggravating factor of future dangerousness, and
thus,

the

sentence

of

death

would

stand

suffered from a constitutional infirmity.
89

even

if

the

vileness

factor

jury's sentence of death relied on an unconstitutional factor.
On

direct

appeal,

Petitioner's

"as

the

Supreme

applied"

Court

of

Virginia

constitutional

judge's sentencing determination,

rejected

challenge

holding that:

(1)

to

the

because the

judge's decision on whether to set aside a sentence of death is
discretionary under Virginia
abuse

of

discretion;

demonstrated

sentencing
however,

and

remorse

judge

law,

(2)

or

it

when

is

determining

acceptance

improperly

relied

reviewed

of

on

the

judge

did

not

give

whether

Lawlor's

prior

an

Lawlor

responsibility

"significant

constitutionally

improper

factor.

petition asserts

that

state

the

silence;

the

and

Mitchell

"clearly established

v.

.

United

.

.

court

ruling

during sentencing proceedings."

The

R&R

was

concluded

not

that

contrary

Petitioner relied in his

to

States,

[that]

weight"

Lawlor's

Supreme Court precedent because Estelle v.

ruling

for

such error did not constitute an "abuse of discretion"

because

(1981)

only

the

federal

was

Smith,
526

to

this

habeas

contrary
451 U.S.

U.S.

314

to
454

(1999)

Fifth Amendment applies

ECF No. 20, at 87.

the
the

federal

Supreme
Supreme

Court
Court

of

Virginia's

cases

habeas petition,

on which

and that

the

Supreme Court of Virginia's weighing of the trial judge's error

was not unreasonable.

Petitioner objects to both findings,

little additional explanation beyond reciting Mitchell,
and United States v.

Caro,

597 F.3d 608,
90

628-30

with

Estelle,

(4th Cir.

2010).

Having considered the objected-to findings ^

novo,

this Court

adopts the analysis and recommendation in the R&R,

finding that

Petitioner

unreasonable

fails

determination

to

of

the

establish

facts

or

an

either

an

unreasonable

application

of

clearly established Supreme Court precedent.

First,
state

is

as

to

Petitioner's

court violated Mitchell

lawful

to

consider

sentencing hearing

a

objection

and Estelle

defendant's

contending
when

that

the

i t noted that

present

"silence"

at

it

a

(as contrasted with prior silence associated

with a claim of innocence or decision not to testify at trial),
Petitioner's
which was

assertion

is

belied

by

the

holding

in

Mitchell,

recently reiterated by the Supreme Court in White v.

Woodall, where the Court explained:
We

have,

it

is

true,

held

[in

Estelle

and

Mitchell]

that the privilege against self-incrimination applies
to the penalty phase.
But i t is not uncommon for a
constitutional rule to apply somewhat differently at
the
penalty
phase
than
it
does
at
the
guilt
phase....

Indeed, Mitchell itself leaves open the possibility
that some inferences might permissibly be drawn from a
defendant's penalty-phase silence.
In that case, the
District Judge had actually drawn from the defendant's
silence an adverse inference about the drug quantity
attributable

to

the

defendant.

We

held

that

this

ran

afoul of the defendant's "right to remain silent at
sentencing."
But we framed our holding narrowly, in
terms
implying that it was limited to inferences
pertaining to the facts of the crime: "We decline to
adopt an exception for the sentencing phase of a
criminal case with regard to factual determinations
respecting
the
circumstances
and
details
of
the
crime."
"The Government
retains,"
we
said,
"the
91

burden of proving facts relevant to the crime .
and cannot enlist the defendant in this process at the

expense of the self-incrimination privilege."
And
Mitchell included an express reservation of direct
relevance

here:

"Whether

determination of a

silence

lack of remorse,

bears

upon

the

or upon acceptance

of
responsibility
for
purposes
of
the
downward
adjustment provided in § 3E1.1 of the United States
Sentencing Guidelines (1998), is a separate question.
It is not before us, and we express no view on it."
White,

134

S.

Ct,

at

1703

(second

omission

(internal citations and footnote omitted).
the

jury's

guilt

verdict/sentence
relevant

there

fact

are

phase

of

on

death

which

clearly

"reasonable

and

already

[Virginia]

original)

Accordingly,

verdict

"had

in

bore

penalty

phase

established

the

arguments

because

burden

that

of

the

every
proof"

logic

of

Mitchell does not apply" to the judge's subsequent discretionary
determination.

F.3d

168,

uncrossed

waiver

Id.

199

allows

inference

from

which

has

first

(2d

allocution

that

he

at

a

1704;

Cir.

2010)

United States v.

(holding

constitutes

the

a

prosecution

defendant's

allocuted")

subclaim

cf.

therefore

failure

(citations
plainly

that

limited

argue

to

testify

610

unsworn,
Amendment

for

an

adverse

as

to

that

omitted).^®
to

"an

Fifth

to

fails

Whitten,

to

Petitioner's
establish

the

misapplication of clearly established Supreme Court precedent.

" Lawlor allocuted prior to the judge making his finding as to whether to
set aside the death sentence imposed by the jury, and Lawlor's very first
comment was an apology expressing remorse for his crime and its impact on
the victim's family.
JA 13125-26.
92

Second,
Supreme

Petitioner objects to the R&R's evaluation of

Court

of

Virginia's

"weighing"

of

the

state

the

court's

error, apparently contending that any reference by a trial judge
to an impermissible/unconstitutional factor necessarily renders
his

entire

ruling

unconstitutional,

and

in

turn,

renders

the

Supreme Court of Virginia's subsequent analysis of such ruling

an

"unreasonable"

Petitioner's

application

arguments,

of

Supreme

however,

Court

precedent/''

the

distinction

conflate

between the Supreme Court of Virginia's acknowledgement that the
trial

judge

warrants

committed

habeas

an

error

relief.

and

a

Notably,

finding

whether

or

that
not

such

error

Mitchell

or

Estelle clearly establish that a reviewing judge cannot consider
a

defendant's prior silence

degree

of

Virginia

concluded

precedent,
on

acceptance

that,

remorse,

based

on

prior

silence.

Thus,

not

directly

analyze

did

conclusion is not
To

and/or

the purpose
the

of

evaluating his

Supreme

Virginia

Court

and

of

Maryland

Lawlor's sentencing judge committed error by relying

Lawlor's

Virginia

for

the

extent

while

the

Mitchell

Supreme
or

Court

Estelle,

of
its

in conflict with those cases and is arguably
Petitioner

interpretation of the
regarding the degree to
in deciding not to set
agrees with Respondent's

objects

to

the

Magistrate

Judge's

state habeas court's "weighing" of the facts
which the trial judge relied on Lawlor's silence
aside the jury's sentence of death, this Court
arguments in its motion to dismiss.
ECF No. 29,

at 84-85.
Importantly,
the context of the trial judge's preliminary
comments on "remorse" reveal that they were a direct response to Lawlor's

contention that his remorse was "new evidence" that the jury never heard,
rather

than

an

effort

by

the

judge

ascribed to Lawlor's lack of remorse.
93

to

emphasize

the

weight

that

he

based on a

more protective rule

than that

such controlling Supreme Court precedent.

clearly dictated by
However,

because the

error did not occur during the penalty phase of the jury trial,
but rather,
makes

the

sentence
Court

occurred during the subsequent phase where the judge
discretionary determination as

imposed by the

of

Virginia

held

jury should be set aside,
that

determination of whether the

given

Hosps.,

(2011).

Inc.,

282

discretion
Court

the

test

death

the Supreme
required

a

identified constitutional error was

Landrum v.
Va.

constitutional

test,

case

let

Supreme

Court

judge's

alone

clearly

unconstitutional.

346,

Chippenham & Johnston-

353,

717

a

criminal

validity of

point

to

Stated

precedent

S.E.2d

134,

137

constitutional

defendant's

Landrum abuse

United
that

differently,

standing

the

a

establishing

when such judge references,

to,

controlling

the

Petitioner's second objection fails because he does not

challenge

trial

the

"significant weight."

Willis

to whether

for

violation

such

Lawlor

the

States

Supreme

test

fails

proposition

warrants

of

habeas

to

is
cite

that

a

relief

but does not give significant weight

prior

silence

when

evaluating

his

level of acceptance or remorse during the discretionary process

of determining whether to set aside a
imposed

by

the

jury.

Because

sentence of death already

Petitioner

fails

to

demonstrate

that the state court's application of the Landrum test resulted

in

an

unreasonable

application
94

of

clearly established Supreme

Court precedent/® or that the state court's analysis was based
on

an

unreasonable

factual

finding,

the

instant

claim

is

dismissed.

17.

Claim XVIII

Petitioner's eighteenth claim asserts that the cumulative
impact

of

multiple

convictions

addressed

and

a

trial

errors

sentence

portion

be

of

requires

overturned.

this

claim

defaulted

{alleged

counsel's

performance).

portions

of

Petitioner's

this

trial

The

claim

failure

to

the

various

habeas ruling was unreasonable.

merits

unrelated

R&R recommends

demonstrate

argues

effect

trial

of

ineffectiveness)"

defaulted."
The

that

a

errors

that

is

not

ECF No.

grounded

opposed

subject

53,

to

defense

reasons,
the

of

both

including

state

court's

Petitioner objects to the R&R's

claim
(as

court

(alleged

dismissal

conclusion that there was no Strickland error to

separately

state

and a portion of it was

errors

for

Petitioner's

The

on

cumulative prejudice under Strickland),
deemed

that

"the

claims

and

cumulative

of

to being deemed

at 43.

test articulated in Landrum,

to

in

"cumulate,"

counsel's

"procedurally

After performing a

^

novo

which is predicated on the abuse of

discretion standard applied by the Fourth and Eighth Circuits, in essence
has a built in prejudice analysis.
Landrum, 282 Va. at 352-53, 717 S.E.2d
at 137.
Similar to the requirement that habeas relief be denied when a
lawyer provides constitutionally deficient representation unless the
petitioner also proves resulting prejudice, here, the Supreme Court of
Virginia

recognized

that

the

trial

judge

relied,

in

part,

on

a

constitutionally improper factor, but because such reliance was determined
to

be

insignificant

to

the

judge's

holding,

the

reviewing

state

found no resulting prejudice, and thus no basis for habeas relief.
95

court

review of the objected-to analysis, this Court adopts the R&R's
analysis and conclusion on this issue.

First and foremost,

the Supreme Court of Virginia did not

unreasonably apply Supreme Court precedent in rejecting Lawlor's
assertion of cumulative Strickland prejudice.
States, No.
2017).

4:13cr25,

2017 WL 1538276,

"Ineffective

reviewed

assistance

individually

at *10

of

rather

Morris v. United
(E.D. Va. Apr.

counsel

than

claims

must

collectively,"

17,
be

and

"'legitimate cumulative-error analysis evaluates only the effect

of matters actually determined to be constitutional error,
the

cumulative

deficient,'"
n.9

(4th

multiple
not

Id.

Cir.

expressly

effect

1998)).

find

all

of

counsel's

(quoting Fisher v. Angelone,
As

the

state

constitutionally

Strickland

unreasonable.

claims,

its

Moreover,

state habeas court,
counsel

of

performed

Dr.

scheme,

Hopper,

and/or

Godlove's

independent

and

at

a

performance
error

the

this

extent

constitutionally

failure

to

to

statements),

^

did

as

analysis
Court,

or

852
not

to
was
the

suggested or assumed in the alternative that

failure

prior

court

cumulative

to

deemed

163 F.3d 835,

habeas

deficient

multiple discrete issues or sub-issues
of

actions

not

novo

(e.g.,

challenge

more

Virginia's

has

to

whether

Strickland prejudice was proven by Lawlor,
96

as

to

sentencing

investigate

Court

as

level

counsel's handling

thoroughly

this

analysis

deficient

performed

Ms.
an

"cumulative"

and finds

that even

if

the

entirety of

defense

counsel's

arguable

constitutional

errors are considered collectively, such errors/potential errors
do not undermine confidence in the outcome of either the guilt

phase or the penalty phase of Lawlor's trial.
Second,

in addition to the adopted analysis regarding the

alleged non-Strickland trial errors,

this Court finds that even

if

is

Petitioner's

trial-error

claim

not

subject

to

being

"defaulted," a contention he appears to raise for the first time
in

his

merits

objections
because

effect

of

habeas

Lawlor

guilt

overturning

to

his

filings

the

R&R,

fails

phase

to

claim

demonstrate

and/or

conviction or
fail

such

penalty

that

phase

that

fail

the

on

the

cumulative

errors

warrant

Petitioner's

sentence.

to demonstrate

would

federal

the state habeas court

found multiple instances of trial error but unreasonably failed
to

cumulate

"harmless."

trial

such

error

Moreover,

errors

when

determining

whether

it

was

even if this Court assumes that multiple

occurred

(e.g.,

sexual

from Dr.

Cunningham) , and further assumes that it is appropriate

consider

such

"errors"

collective consideration of

arguable

outcome

trial

of

errors

either

fails

phase

exclusion

from
the

of

hearsay

a

of

to

undermine

Lawlor's
97

prison

collective

entirety of

testimony

on

Lawlor's

history,

of

reliance

prior

abuse

exclusion

judge's

Lawlor's

to

silence,

sentencing

the

statistics

standpoint,

the

trial errors or

confidence

trial.

about

Cf.

in

the

Wong

v.

Belmontes,

Circuit,

558

and

Strickland

15,

26-27

that

the

in

case

finding

prejudice

aggravating
crime

U.S.

evidence,"

itself,

"was

"extraordinary

a

(2009)

(reversing

petitioner

failed

where

particularly
simply

the

the

as

15 to 20 blows from a
of

defensive

demonstrating
marks

and

final habeas

arms,

struggle

for

omitted).

claim i s

December

the

autopsy

along with evidence

victim's

D.

On

demonstrated

her skull crushed by

the

citations

the

by

"desperate

her

on

of

and

illustrated

steel dumbbell bar,"

wounds

admitted

circumstances

photographs of the victim's "mangled head,

Ninth

to establish

"properly

overwhelming,"

brutality,"

the

feet

life")

Petitioner's

and

hands

{quotation

eighteenth,

and

therefore dismissed.
Motion for Leave to Amend

29,

2016,

subsequent

to both

the

issuance

of

the R&R and the completion of briefing on objections to the R&R,
Petitioner filed a motion for leave to amend his § 2254 petition

in light of Hurst v. Florida, 136 S. Ct. 616

(2016).

filed a brief in opposition and Petitioner filed a

Respondent
reply.

For

the reasons set forth below,

such late-filed motion is dismissed

as

sought

untimely,

and

the

claim

to

be

advanced

therein

is

alternatively denied on the merits.

First,
Petitioner's

as

argued

request

in

to

unexhausted claim more

Respondent's

amend

than a

his

§

brief

2254

in

Petition

opposition,
to

add

an

year and half after the Petition
98

was

filed,

and after the Magistrate Judge

issued his R&R,

both untimely under the § 2254 rules, and is futile.
agrees

with Respondent

Hurst,

which was

that

decided

Lawlor

nearly

a

fails

submission of the motion for leave to amend,

"newly recognized by the
applicable

to

cases

§ 2244(d)(1)(D);

851

F.3d 1158,

Hurst,

on

collateral

Lambrix v.

1165 n.2

like Ring,

review.")

(10th

see

Supreme Court

decision

2017)

in

collateral

Petitioner's

establishes a right

and made

retroactively
28

Florida Dep't

2017)

(" [U] nder

("The

Hurst

In re

Supreme

is

Jones,

Court

retroactively

review.").

There

are

847

factual

back"

doctrine

predicate

correct

that

U.S.C.

of

Rules

for

Rule

15

Governing

or

has

not

no

of

prior

claim.

the

that

to

cases

other

Rules

of

to

that

§

2254

actions

inconsistent

with

any

provisions

include

28

2254

in

such as the

of

the

Petitioner
Civil

the

on

is

Procedure

Rule 12

United

States

the Rules of Civil Procedure only

"to

the

statutory
U.S.C.

Cases

its

apparent

unavailability
Although

Federal

1295

held

applicable

similarly

the

such

Section

District Courts states
apply

law

1293,

provides that leave to amend should be freely granted.
of

Corr.,

federal

F.3d

exceptions warranting the late-filing of this claim,

"relation

that

is not retroactively applicable on collateral

(citation omitted);

Cir.

to

review."

Sec'y,

(11th Cir.

The Court

to demonstrate

year prior

is

extent

provisions."

§ 2244(d)(1),
99

that

they

Such

which

are

not

statutory

bars

§

2254

claims

filed more

begins

to run,

precedence

and the

over

Moreover,

than one-year after

Rule

§ 2244(d)(1)

15

of

the

limitations

Rules

of

Civil

decided

Additionally,

and

months

takes

Procedure.

even if Rule 15 were applied in this case,

was

period

limitations period

does not support such late amendment,
Hurst

the

"justice"

filed nearly a year after

after

the

R&R

was

issued.

for the reasons discussed immediately below,

such

amendment is also "futile" because the claim sought to be added
lacks merit.

Second and alternatively,
amend

were

deemed

principles

of

addressed

by

timely,

comity even
the

even if

and

were

though

Supreme

Petitioner's efforts
deemed

consistent

this

claim has

of

Virginia,

Court

not

in

LEXIS 36,

and

detail

at *34-*53

well-reasoned

sentencing

capital

scheme

in
(Va.

Supp.

4:08crl6,

Jan.

19,

No.

2017)

Lawlor,
6,

2017).

distinguishes

schemes,

in Hurst.

v.

Ct. Mar.

both Delaware

unconstitutional
3d --,

Cir.

opinion

from

sentencing

Commonwealth

the
Cf.

and

latter

Runyon v.

2017 WL 253963,

yet

been

the reasons

2017

Va.

Cir.

Such detailed

Virginia's

Florida's

of

with

Petitioner's

proposed claim would be rejected on the merits for
explained

to

which

capital

respective

was

United States,
at *45-*47

deemed
--

(E.D.

F.
Va.

(finding both "that Hurst does not represent an

intervening change

in the

law,"

and that

it does not overrule

prior Fourth Circuit precedent establishing that the
100

"beyond a

reasonable

weighing

doubt"

of

standard of

aggravating

proof

does

extend

factors

and mitigating

not

by

to

a

"the

jury").

Accordingly, Petitioner's motion for leave to amend is denied as
untimely and

futile,

and

is

alternatively denied because

the

underlying claim sought to be added lacks merit.
IV.

Having

reviewed

CONCLUSION

for

"clear

portions of the detailed R&R,
to

facts,

analysis,

Court

above.

set

forth

in the R&R.

the

the

factual

R&R,

as

findings,

modified

analysis,

and/or

and

entirety.

DISMISSING

Petitioner's

Additionally,

to

supplement

the

the

Court

record

§ 2254

DENIES

and

his

and

supplemented

The Court GRANTS Respondent's motion to dismiss,

DENYING

motion

in

unobjected-to

novo all objected-to portions of the R&R,

ADOPTS

recommendations

all

this Court ADOPTS the unobjected-

and recommendations

Having considered ^
this

error"

petition

both

hereby
in

its

Petitioner's

subsequently

filed

motion for leave to amend his federal habeas petition.

Finding that Petitioner fails
showing

supporting

appealability,
this

v.

U.S.

either

Court DECLINES

Cockrell,
473,

on

TO

537 U.S.

484-85

Courts 11(a);

the

(2000);

28 U.S.C.

issuance
procedural

ISSUE

322,

§

to make the requisite

such

335-36
R.

Gov.

2253(c).
101

a

of
or

a

certificate

merits-based

certificate.

(2003);
§

2254

legal

Slack v.
Cases

of

grounds,

See Miller-El

McDaniel,
in

U.S.

529

Dist.

Petitioner is ADVISED that,

because a
he

may

seek

Appeals
Dist.

certificate of appealability is denied by this Court,

for

a

the

Courts

from

Fourth Circuit.

11(a);

intends to seek a

Appeals,

certificate

Fed.

R.

the

R.

United

Gov.

App.

P.

§

States

2254

22(b).

Court

Cases
If

of

in U.S.

Petitioner

certificate of appealability from the Court of

he must do so within thirty

(30)

days from the date of

entry of this judgment.
The Clerk is DIRECTED to provide a

copy of this Opinion and

Final Order to Petitioner's counsel and to Respondent's counsel.
It

is

so ORDERED.

/s
Mark S.

Davis

United States District Judge
Norfolk, Virginia

June 15 , 2017

102