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, )

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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

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