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Morva v. Davis

United States District Court, W.D. Virginia, Roanoke Division

April 15, 2015

KEITH W. DAVIS, Respondent.


MICHAEL F. URBANSKI, District Judge.

William Charles Morva ("Morva"), a Virginia inmate proceeding with counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Dkt. No. 111, challenging the sentences of death imposed by the Circuit Court of Montgomery County, Virginia ("circuit court") on August 25, 2008. Respondent, who is the Warden of the Sussex I State Prison ("Warden"), moved to dismiss the petition, Dkt. Nos. 67, 120, Morva responded, and the court held a hearing on October 24, 2014. After exhaustively reviewing the record and considering the parties' arguments, the court finds that Morva's counsel were not ineffective and that his capital murder trial did not otherwise violate the laws or Constitution of the United States. As such, the Warden's motions to dismiss must be GRANTED.

I. Factual and Procedural History

Following an eight day trial held in March 2008, a jury convicted Morva of assault and battery on Montgomery County Sheriff's Deputy Russell Quesenberry, in violation of Virginia Code § 18.2-57; escape with force by a prisoner, in violation of Virginia Code § 18.2-478; one count of capital murder for killing hospital security guard Derrick McFarland while a prisoner, in violation of Virginia Code § 18.2-31(3); one count of capital murder for killing Montgomery County Sheriff's Deputy Corporal Eric Sutphin, in violation of Virginia Code § 18.2-31(6); one count of capital murder for committing premeditated murders of more than one person within a three-year period, in violation of Virginia Code § 18.2-31(8); and two counts of using a firearm in the commission of murder, in violation of Virginia Code § 18.2-31. The jury based its decision on the following facts, as recited by the Supreme Court of Virginia:

In the summer of 2006, Morva was in jail awaiting trial on charges of attempted burglary, conspiracy to commit burglary, burglary, attempted robbery, and use of a firearm. He had been in jail for approximately one year. While in jail he wrote a letter to his mother stating, "I will kick an unarmed guard in the neck and make him drop. Then I'll stomp him until he is as dead as I'll be."
Morva was scheduled to go to trial on August 23, 2006. In the evening on August 19, 2006, he informed the jail personnel that he required medical attention due to an injury to his leg and forearm. During the early morning hours of August 20, 2006, Sheriff's Deputy Russell Quesenberry, who was in uniform and armed with a Glock.40 caliber semi-automatic pistol, transported Morva to the Montgomery Regional Hospital located in Montgomery County. Morva was wearing waist chains, but Deputy Quesenberry did not secure Morva's allegedly injured arm. Upon arrival at the hospital, Morva "kept trying" to walk on Deputy Quesenberry's right side even though he was ordered to walk on Deputy Quesenberry's left side. Quesenberry was required to have Morva walk on his left because Quesenberry wore his gun on his right side. Quesenberry observed that Morva's limping was sporadic and "sort of went away." Also, Nurse Melissa Epperly observed Morva walking as if he were not injured.
After the hospital treated Morva, Morva requested to use the bathroom. Deputy Quesenberry inspected the bathroom and allowed Morva access. While in the bathroom, Morva removed a metal toilet paper holder that was screwed to the wall. As Deputy Quesenberry entered the bathroom, Morva attacked him with the metal toilet paper holder, breaking Quesenberry's nose, fracturing his face, and knocking him unconscious. Morva then took Quesenberry's gun. Prior to leaving the bathroom, Morva confirmed that Quesenberry's gun was ready to fire, ejecting a live round from the chamber.
After escaping from the bathroom, Morva encountered Derrick McFarland, an unarmed hospital security guard. Morva pointed Quesenberry's gun at McFarland's face. McFarland stood with his hands out by his side and palms facing Morva. Despite McFarland's apparent surrender, Morva shot McFarland in the face from a distance of two feet and ran out of the hospital, firing five gunshots into the electronic emergency room doors when they would not open. McFarland died from the gunshot to his face.
In the morning of August 21, 2006, Morva was seen in Montgomery County near "Huckleberry Trail, " a paved path for walking and bicycling. Corporal Eric Sutphin, who was in uniform and armed, responded to that information by proceeding to "Huckleberry Trail."
Andrew J. Duncan observed Morva and then later observed Corporal Sutphin on "Huckleberry Trail." Four minutes later, Duncan heard two gunshots, less than a second apart. David Carter, who lived nearby, heard shouting, followed by two gunshots, and saw Corporal Sutphin fall to the ground.
Shortly thereafter, Officer Brian Roe discovered Corporal Sutphin, who was dead from a gunshot to the back of his head. Corporal Sutphin's gun was still in its holster with the safety strap engaged. Officer Roe confiscated Corporal Sutphin's gun to secure it and continued to search for Morva.
Later that day, Officer Ryan Hite found Morva lying in a ditch in thick grass. Even though Morva claimed to be unarmed, officers discovered Quesenberry's gun on the ground where Morva had been lying. Morva's DNA was found on the trigger and handle of Quesenberry's gun.

Morva v. Commonwealth, 278 Va. 329, 335-37, 683 S.E.2d 553, 556-57 (2009).

During the sentencing phase of trial, the jury heard testimony from Dr. Bruce Cohen, a forensic psychiatrist, and Dr. Scott Bender, a neuropsychologist, both from the Institute of Law, Psychiatry, and Public Policy in Charlottesville, Virginia.[1] After conducting numerous psychological tests, Dr. Bender identified two "DSM-IV Diagnostic Possibilities:" Somatoform Disorder NOS (not otherwise specified), which is an Axis-I disorder, and a Personality Disorder NOS (not otherwise specified) (Mixed Personality Disorder with Schizotypal, Narcissistic, Antisocial, and Paranoid Features), which is an Axis-II disorder.[2] State Habeas Appendix ("SHA") Vol. 6, at 2486.[3] Relying on documents, his own interviews, and Dr. Bender's determinations, Dr. Cohen concluded that "Morva's life story and overall clinical presentation are indicative of a diagnosis of schizotypal personality disorder." SHA Vol. 6, at 2467; Direct Appeal Joint Appendix ("Direct Appeal JA") at 2325. Dr. Cohen did not find that Morva's schizotypal personality disorder constituted an "extreme mental or emotional disturbance at the time of the offenses" or that it significantly impaired Morva's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law[.]" SHA Vol. 6, at 2466; Direct Appeal JA at 2324-25, 2353; see, e.g., Va. Code Ann. § 19.2-264.3:1(A), (C). However, Dr. Cohen testified that Morva's schizotypal personality disorder served as a mitigating factor against imposing a death sentence. Direct Appeal JA at 2353-54.

After hearing substantial mitigation evidence, including testimony from Dr. Bender and Dr. Cohen, the jury recommended sentences of death for each of the three capital murder convictions and a total term of sixteen years' incarceration for the other convictions. The circuit court's August 25, 2008 sentencing order imposed the jury's recommended sentences. Direct Appeal JA at 413-15.[4] On appeal, the Supreme Court of Virginia affirmed the convictions and sentences, finding "no reversible error" and "no reason to set aside the sentences of death."[5] Morva v. Commonwealth, 278 Va. at 355, 683 S.E.2d at 568.

Following the denial of the direct appeal, the circuit court appointed two licensed Virginia attorneys ("state habeas counsel"), who were specially qualified under Virginia Code § 19.2-163.7 to represent Morva in state habeas proceedings. On December 3, 2010, state habeas counsel filed a petition for a writ of habeas corpus and five volumes of appendices with the Supreme Court of Virginia.[6] The Warden filed a motion to dismiss supported with exhibits, including affidavits, on January 4, 2011.

Between February 4, 2011, and April 3, 2013, Morva filed five motions for leave to supplement the record and one motion to amend the petition.[7] During that same time, Morva also pursued motions for discovery, for appointment of mental health experts, and for an evidentiary hearing to support the claims set forth in the petition and exhibits.[8] On April 12, 2013, the Supreme Court of Virginia denied all of these motions, considered "[t]he exhibits contained in the [five] appendices... pursuant to the appropriate evidentiary rules[, ]" and granted the Warden's motion to dismiss the habeas petition. Morva v. Warden of the Sussex I State Prison, 285 Va. 511, 525, 741 S.E.2d 781, 792 (2013).

II. Morva's Federal Habeas Claims

Thereafter, Morva timely commenced this action with the assistance of new habeas counsel appointed by this court, and the court stayed Morva's execution pursuant to 28 U.S.C. § 2251(a)(3). The petition ripe for adjudication is Morva's second amended petition for a writ of habeas corpus prepared by counsel, Dkt. No. 111.[9] Morva presents the following twelve claims in the instant petition:

I. The circuit court's denial of the assistance of a risk assessment expert on the issue of future dangerousness violated the Eighth and Fourteenth Amendments;
II. (A) Morva was visibly restrained during trial in violation of due process, and (B) trial counsel rendered ineffective assistance by not objecting to the visible restraints;
III. The circuit court's exclusion of venirewoman Mary Blevins violated the Sixth and Fourteenth Amendments' guarantees of a fair trial and an impartial jury;
IV. Trial counsel rendered ineffective assistance by stipulating that Morva was "a prisoner imprisoned and in lawful custody" during his escape on August 20 and 21, 2006;
V. Trial counsel rendered ineffective assistance by not investigating and challenging forensic and other evidence relating to the two shootings;
VI. Trial counsel rendered ineffective assistance by not investigating and presenting evidence about conditions of confinement at the Montgomery County Jail to support a claim of imperfect self-defense;
VII. Jury Instruction 8A violated the Fourteenth Amendment's right to due process;
VIII. Trial counsel rendered ineffective assistance by (A) not making a double jeopardy objection to the third capital murder charge, and (B) not offering an instruction against triple-counting the capital murder charges and not objecting to the duplicative jury instructions and duplicative verdict forms that misled the jury into sentencing Morva to death;
IX. Trial counsel rendered ineffective assistance by not (A) conducting an adequate investigation of Morva's background, history, character, and mental illness; (B) providing the available information to the mental health experts to ensure an accurate and reliable mental health evaluation; and (C) adequately presenting all available mitigating evidence during the sentencing phase;
X. Trial counsel rendered ineffective assistance by not ensuring that Morva had constitutionally adequate expert assistance;
XI. Trial counsel rendered ineffective assistance by not investigating and presenting powerful mitigation evidence that Morva had saved a man's life and helped the Commonwealth prosecute the man's assailant; and
XII. Morva's death sentence based on a finding of depravity of mind, as permitted by Virginia Code § 19.2-264.4(C), violates the Eighth and Fourteenth Amendments.

The Warden filed motions to dismiss the second amended petition, which are before the court for decision.[10]

III. Overview of Analytical Framework

A. Legal Standard

For each of Morva's twelve claims for relief, the court must consider the threshold issue of whether the claim is procedurally defaulted. A claim is procedurally defaulted if: "(1) the state court relied on an adequate and independent state procedural rule to deny relief on that claim, Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir.1998); or (2) the petitioner failed to present a claim to the state court and that claim may not now be presented, Gray v. Netherland, 518 U.S. 152, 161-62, (1996); Bassette v. Thompson, 915 F.2d 932, 936 (4th Cir. 1990)." Bell v. True, 413 F.Supp.2d 657, 676 (W.D. Va. 2006), aff'd sub nom. Bell v. Kelly, 260 F.App'x 599 (4th Cir. 2008). As discussed infra, claim II(A) falls into the first category of procedurally defaulted claims, and claims IV and VIII(B) fall into the second. If a claim is determined to have been procedurally defaulted, it is barred from federal habeas review unless the petitioner "can show that cause and prejudice or a fundamental miscarriage of justice might excuse his default." Bell, 413 F.Supp.2d at 676 (citing Fisher, 163 F.3d at 844).

The bulk of Morva's claims were presented to the Supreme Court of Virginia, either on direct appeal or in his state habeas petition, and are not procedurally defaulted. For these claims, the court must review the state court's decision on the merits, pursuant to 28 U.S.C. § 2254. A federal court conducting habeas review is limited to determining whether a petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, the court may grant habeas relief only if the state court's adjudication of a claim is (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

A state court determination is "contrary to" clearly established federal law[11] if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court determination is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . This reasonableness standard is an objective one. Id. at 410. "It is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.... Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal citations and quotations omitted). Review of a state court's legal determination involving clearly established federal law "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011).

A state court's factual determination is entitled to a "presumption of correctness, " which can only be rebutted by "clear and convincing" evidence that the state court's decision was "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)(2), (e)(1); see Bell, 413 F.Supp.2d at 676. The presumption applies equally to the factual findings of state courts that conducted post-conviction proceedings. Howard v. Moore, 131 F.3d 399, 422 (4th Cir. 1997) (citing Rushen v. Spain, 464 U.S. 114 (1983) (per curiam), and Johnson v. Maryland, 915 F.2d 892, 896 (4th Cir. 1990)). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).

Even if a writ of habeas corpus is authorized under § 2254(d), a petitioner still is not entitled to relief unless he can show that any constitutional error committed had a substantial and injurious effect or influence on the jury's verdict. Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir. 2003).

If this standard is difficult to meet, that is because it was meant to be. As amended by [the Antiterrorism and Effective Death Penalty Act], § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. 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 [the United States Supreme] 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. As a condition for obtaining habeas corpus 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.

Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citations omitted).

B. Standard Applicable to Claims of Ineffective Assistance of Counsel

A number of Morva's claims raise arguments of ineffective assistance of counsel.[12] A petitioner claiming ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment[, ]" meaning that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88.

The second prong of Strickland requires a petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine the confidence of the outcome." Id . It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding.' Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693, 687). In a capital case, "the prejudice inquiry centers on whether there is a reasonable probability that, absent [counsel's] errors, the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Williams v. Ozmint, 494 F.3d 478, 484 (4th Cir. 2007) (quoting Strickland, 466 U.S. at 695 (alterations and ellipses in Ozmint)). If a petitioner does not satisfy one prong of the Strickland test, a court need not inquire whether petitioner has satisfied the other prong. Strickland, 466 U.S. at 697.

The Sixth Amendment right to the effective assistance of counsel exists "in order to protect the fundamental right to a fair trial." Id. at 64. "Thus, the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)).

C. Applicability of 28 U.S.C. § 2254(d)

Morva argues that the deferential standard set forth in § 2254(d) should not apply in this case and his non-defaulted claims should be considered de novo "because the state court did not adjudicate them on the merits[.]" Second Am. Pet., Dkt. No. 111, at 20. Morva cites Winston v. Kelly, 592 F.3d 535, 555-56 (4th Cir. 2010), for the proposition that the Supreme Court of Virginia's disposition of the state habeas petition is not entitled to the deference proscribed in § 2254(d) because the Supreme Court of Virginia denied Morva's motions for discovery, for appointment of mental health experts, and for an evidentiary hearing. Morva contends, therefore, that the court must review the claims de novo. Second Am. Pet., Dkt. No. 111, at 35.

"Whether a claim has been adjudicated on the merits is a case-specific inquiry, " and de novo review might be appropriate if "a state court unreasonably refuses to permit further development of the facts of a claim[.]" Winston v. Pearson, 683 F.3d 489, 496 (4th Cir. 2012) (internal quotation marks omitted). Upon review of the voluminous record in this case, the court cannot conclude that the Supreme Court of Virginia unreasonably refused further factual development of the facts of any of Morva's claims. In addition to the seven volumes of the joint appendix considered on direct appeal, the Supreme Court of Virginia considered the five volumes of state habeas appendix materials Morva filed in connection with his initial state habeas petition along with the expert mental health assessments of Drs. Bender, Cohen, and Hagan found in volume six of the state habeas appendix. The first five volumes of the state habeas appendix span more than two thousand pages, and contain (1) fifty-nine affidavits from Morva's family, friends, acquaintances and others, (2) data regarding Morva's family history, (3) reports from police and first responders, (4) educational and employment records for Morva and his family, (5) medical records for Morva and his family, (6) military and jail records for Morva's brother Michael, and (7) Morva's jail records.

In connection with his state habeas petition, Morva sought discovery of additional information and the appointment of mental health experts. Morva asked the Supreme Court of Virginia to permit inspection or other discovery concerning the conditions of C-Block of the Montgomery County Jail where Morva was housed prior to the murders. The Supreme Court of Virginia did not permit the requested discovery and denied the claim, ruling that Morva's allegations concerning the living conditions at the Montgomery County Jail "would not have provided a viable defense to the murders he committed, and would not have mitigated the murders."[13] Morva v. Warden, 285 Va. at 517, 741 S.E.2d at 787. Thus, additional discovery on the jail conditions was immaterial to the ultimate legal conclusion reached by the Supreme Court of Virginia.

Next, Morva sought discovery depositions from a few persons who would not voluntarily speak with state habeas counsel. Morva asked to question Commonwealth trial witness Jennifer Preston, a witness to the shooting of hospital security guard Derrick McFarland.[14] Morva sought to question Preston about her state of mind, suggesting that her "perception and judgment may well have been impaired at the time of the shooting." State Habeas Motion for Leave to Conduct Discovery, filed March 23, 2011, at 11. Morva speculates from Preston's prior criminal history that she may have been intoxicated, that her "accident may have involved the use of drugs or consumption of alcohol or some other nonexternal event." Id. at 12. Morva also posits that Preston may have been in shock or had been "administered medications or other treatment in the hospital, and these may have affected her perception and judgment." Id . Preston testified at Morva's trial and was cross examined. Nothing about her testimony suggests any lack of capacity on her part, and the discovery request is entirely speculative.

Morva likewise sought to depose Gregory Nelson, Stanford Harvey and Jeffrey Roberts, Morva's co-defendants on the pending burglary and robbery charges, concerning Morva's "increasingly bizarre behavior" and to "provide further proof of his delusions and aberrant thoughts." Id. at 16-17. Morva argues that such information "would have helped the mental health experts reach an informed and accurate diagnosis." Id. at 17. As will be addressed in detail in connection with claim IX, Morva's mental health experts were well aware of his peculiarities, [15] and many witnesses testified in mitigation about his eccentric behavior around Blacksburg. Morva and his co-defendants faced prosecution for violent crimes, and it cannot be credibly maintained that calling them as trial witnesses could have helped Morva. Given "the totality of the evidence before the... jury, " Strickland, 466 U.S. at 695, on mitigation, the failure to engage in additional discovery does not call into question the application of § 2254(d).

Nor can it be said that the ninth grade art and eleventh grade piano lab teachers from whom Morva sought discovery could offer relevant information that was not cumulative of the information already contained in the trial record or in the numerous affidavits from Morva's friends and acquaintances that filled Volume I of the state habeas appendix. Indeed, at trial, Morva called as witnesses another high school teacher and a guidance counselor, along with several friends.

Finally, Morva sought to depose Laura Eichenlaub, a counselor at the Montgomery County Jail who did an intake interview of Morva a few months after he was arrested on the robbery and burglary charges. Her interview notes indicate that Morva was stressed and wanted to talk with someone new. Her notes indicate that Morva's Behavior/Appearance, Thought Content/Process, Orientation, and Suicidal and Homicidal Ideation were "WNL, " presumably meaning within normal limits. The form noted Morva's digestive issues (irritable bowel syndrome), poor sleep, and family history of alcoholism. Eichenlaub's interview notes are, in short, cumulative of the volumes of information on these subjects otherwise contained in the trial record and state habeas appendix. Like many of the state habeas affiants, Eichenlaub had also run into Morva at downtown Blacksburg shops before his arrest. There is no suggestion that her observations would be anything other than cumulative of the trial record or the host of affidavits collected in the state habeas appendix.

In addition to this discovery, Morva asked the Supreme Court of Virginia to appoint additional mental health experts. State habeas counsel offered an affidavit from Dr. Dale Watson and an unsworn submission by Dr. Leslie Liebowitz, opining that a comprehensive mental health evaluation of Morva should be undertaken. Dr. Watson's affidavit was somewhat critical of the opinions rendered by the mental health experts who testified at trial, indicating that they did not have sufficient information to properly assess Morva's delusional beliefs. Appendix to Morva's Second Am. Pet., Dkt. No. 111-1, at 76-87. Dr. Liebowitz offered that Morva may have been exposed to childhood trauma and that he ought to be evaluated by a clinician with expertise in traumatic stress or child maltreatment. Id. at 107. However, neither Drs. Watson nor Liebowitz met Morva. Thus, neither was in a position to evaluate or diagnose Morva. As will be addressed in detail in connection with the court's discussion of claim IX, Morva had the assistance of two mental health professionals appointed by the circuit court to assist him at trial. Dr. Bender testified as to the results of psychological testing he performed on Morva, and Dr. Cohen testified as to his diagnosis of schizotypal personality disorder. The fact that other mental health experts, some years after the trial, suggest that further mental health evaluations be performed on Morva to see whether he suffered from different, even more severe, mental health issues did not change the constitutional calculus facing the Supreme Court of Virginia in claim IX. The question was not whether another expert may disagree with the assessment provided to the jury by Drs. Bender and Cohen. Rather, the question was whether their assistance, and that of trial counsel working with them, met the constitutional standard. Morva had the assistance of well-qualified mental health experts at trial, and the court cannot fault the Supreme Court of Virginia for not reopening discovery to obtain a new mental health evaluation of Morva some years later.

To be sure, the Supreme Court of Virginia did not grant Morva's requests for additional discovery, appoint new mental health experts or conduct an evidentiary hearing. But state habeas counsel presented dozens of affidavits and reams of records which the Supreme Court of Virginia accepted and considered. "The fact that [Morva's] state post-conviction counsel requested but was denied an evidentiary hearing simply does not, without more, warrant de novo review of the state court's decision." Burr v. Lassiter, 513 F.App'x 327, 340 (4th Cir. 2013).

In short, there is no indication that Morva's discovery and other requests in the state habeas proceedings would have led to material evidence that could have in any respect altered the outcome of Morva's trial. Rather, the discovery sought by Morva is either speculative or cumulative of the testimony presented trial. Given the voluminous record in this case, the Supreme Court of Virginia did not act unreasonably in declining to permit the additional discovery sought by Morva, authorize a new mental health evaluation, or conduct an evidentiary hearing. As such, the court is required to review the state court's adjudication of Morva's claims under its disposition of the deferential standards of § 2254(d).

IV. Analysis of Morva's Claims

The court will address the substance of each of Morva's claims in turn, considering issues of procedural default in connection with claims II(A), IV and VIII(B).

A. Claim I - Denial of Expert Testimony in Prison Risk Assessment

Morva argues in claim I that the circuit court violated the Eighth and Fourteenth Amendments when it denied Morva's motion to appoint Dr. Mark D. Cunningham, a prison-risk assessment expert, in mitigation of the prosecution's assertion of Morva's future dangerousness. The Supreme Court of Virginia described the relevant facts as follows:

Prior to trial, Morva filed a motion for the appointment of an expert on prison risk assessment, Dr. Mark D. Cunningham. Although the court had already appointed two psychologists as mitigation experts, Morva argued that Dr. Cunningham would be needed to rebut the Commonwealth's claim that Morva was a future danger to society and to provide the jury with an assessment of the likelihood that Morva would commit violence if he were sentenced to life in prison. Along with the motion, Morva proffered Dr. Cunningham's curriculum vitae, an example of a presentation Dr. Cunningham had given in Commonwealth v. Jose Rogers, and a declaration from Dr. Cunningham regarding his qualifications and experience in providing violence risk assessments and his anticipated testimony.
* * *
Morva contended that "[b]ecause the only alternative to the death penalty for a defendant convicted of capital murder is life imprisonment without the possibility of parole, the only society' to which the defendant can ever pose a continuing serious threat' is prison society." Morva stated that he could not "effectively rebut assertions of future dangerousness' by the Commonwealth unless he [were] given the tools with which to inform the jury how to make reliable assessments of the likelihood of serious violence by an individual defendant in [a] prison setting - including security and the actual prevalence of serious violence" in a prison setting, which Dr. Cunningham's testimony would provide.
Acknowledging Virginia precedent to the contrary, Morva also argued, in the motion, that this Court's future dangerousness precedent misinterprets the controlling requirements of federal constitutional law by rejecting evidence concerning the conditions and procedures governing a defendant's future confinement. Citing Simmons v. South Carolina, 512 U.S. 154 (1994), Skipper v. South Carolina, 476 U.S. 1 (1986), and Gardner v. Florida, 430 U.S. 349 (1977), Morva's motion claimed that a defendant has a constitutional right to rebut any evidence upon which the jury might rely in sentencing him to death and that this constitutional right requires appointment of an expert on prison risk assessment and "admission of [a] foundation about such critical considerations as the defendant's future classification if sentenced to life imprisonment; the limitations on his freedom within the prison system; the Virginia Department of Corrections internal safety and security measures; and the actual rates of serious violence in Virginia's prisons."
In Dr. Cunningham's declaration, provided as an attachment to the motion, Dr. Cunningham stated, "A reliable individualized assessment can be made of the likelihood that Mr. Morva will commit acts of serious violence if confined for life in the Virginia Department of Corrections." He further acknowledged that he would testify concerning "[g]roup statistical data (i.e., base rate data)" because the "rates of violence in similarly situated groups is critically important to a reliable violence risk assessment and forms the anchoring point of any individualized risk assessment." If appointed, he would testify that "[r]isk is always a function of context, " and consideration of interventions that can be brought to bear on inmates in the Virginia Department of Corrections would be an important part of the violence risk assessment he would perform. He would also testify that "[t]here are conditions of confinement available in the Virginia Department of Corrections that substantially negate the potential/occurrence of serious violence" and that "[s]hould Mr. Morva be identified as a disproportionate risk of violent or disruptive conduct by the Virginia Department of Corrections, super-maximum confinement could be brought to bear."
Dr. Cunningham further stated "it is necessary to specify the conditions of confinement in order to make a reliable violence risk assessment and to address the implicit inference of the Commonwealth in alleging [a] continuing threat that it is incompetent to securely confine the defendant in the future." He noted that he would testify that "[u]nder an administrative maximum level of confinement at Red Onion or other ultra-high security unit, an inmate is single-celled and locked down twenty-three hours daily, with individual or small group exercise, and shackled movement under escort. Under such conditions of security, opportunities for serious violence toward others are greatly reduced." He opined that "[s]uch increased security measures would act to significantly reduce the likelihood of Mr. Morva engaging in serious violence in prison."
In the letter from Dr. Cunningham accompanying the motion to reconsider, Dr. Cunningham stated that group statistical data regarding similarly situated inmates interpreted in light of characteristics specific to Morva is relevant to future prison conduct. He also expounded upon the scientific validity of making individual assessments based upon group data. He reiterated that risk is always a function of context or preventative interventions and that increased security measures could significantly reduce the likelihood that Morva would engage in serious violence in prison. He opined that informing the jury of the capabilities of the Virginia Department of Corrections to bring higher levels of security to bear was necessary to provide an individualized risk assessment.
* * *
Morva points out that, in this case, Dr. Cunningham has proposed to factor into his statistical analysis individualized characteristics that have been shown to reduce the likelihood of future violent behavior in prison, including Morva's prior behavior while incarcerated, age, level of educational attainment, and appraisals of his security requirements during prior incarceration. Due to the integration of these factors into the analysis, Morva claims that Dr. Cunningham's testimony would have been "individualized" to Morva rather than simply a generalization applicable to any convicted murderer.
* * *
... [T]he Commonwealth in this case neither proposed nor introduced any evidence concerning Morva's prospective life in prison, but limited its evidence on the future dangerousness aggravating factor to the statutory requirements consisting of Morva's prior history and the circumstances surrounding the offense. Thus, Dr. Cunningham's anticipated testimony was not in rebuttal to any specific evidence concerning prison life.

Morva v. Commonwealth, 278 Va. at 337, 345-47, 683 S.E.2d at 557-58, 562-64 (internal citations omitted).

Despite Morva's arguments to the contrary, the trial record reflects that the Supreme Court of Virginia's determination of the facts was not unreasonable. On July 16, 2007, trial counsel moved the circuit court to appoint Dr. Cunningham as an expert to provide evidence in mitigation of the Commonwealth's expected assertion of Morva's future dangerousness, citing Gardner, Skipper, Simmons, Ake v. Oklahoma, 470 U.S. 68 (1985), and Husske v. Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996). On August 1, 2007, the circuit court denied the motion to appoint Dr. Cunningham, citing Burns v. Commonwealth, 261 Va. 307, 340, 541 S.E.2d 872, 893 (2001), which held that a convict's death sentence must be based on the convict's history and background and the circumstances of the capital offense, instead of the general nature of prison life in a maximum security facility. On February 1, 2008, trial counsel asked the circuit court to reconsider the denial and submitted three documents in support: Dr. Cunningham's declaration; his updated curriculum vitae; and sample presentation slides that describe generally Dr. Cunningham's anticipated expert testimony.

Dr. Cunningham stated in his declaration that:

A reliable individualized assessment can be made of the likelihood that Mr. Morva will commit acts of serious violence if confined for life in the Virginia Department of Corrections. In the absence of the [circuit] [c]ourt appointing me to provide this risk assessment, with associated review of records and interview of Mr. Morva, the precise contours of this testimony cannot be specified. However, the reliable methodology and associated group statistical data that would have been applied in making this risk assessment can be detailed. Further, even generalized information on the methodology, rates, and correlates of violence risk assessment for prison that is particularized by hypothetical questions can be crucial to a capital jury making this determination in a reliable and scientifically-informed fashion.

Direct Appeal JA at 663-64. The materials provided by Dr. Cunningham support the reasonableness of the Supreme Court of Virginia's conclusion that Dr. Cunningham's opinion as to Morva's future dangerousness was not based on an individualized assessment of Morva but rather on criminal justice statistics of inmates in various states over the course of several decades.

As reflected in his presentation slides, Dr. Cunningham employed a methodology that compared a defendant's age to the correlation between the ages of offenders in New York and the likelihood those offenders committed an infraction of facility rules in the 1970s. Dr. Cunningham also compared a sample defendant's age to the federal Bureau of Prisons' data from 1989 and then summarized the narrative data of the sample defendant's adjustment to incarceration in various Virginia facilities. Dr. Cunningham next summarized his findings from a study of corrections in Florida that concluded inmates sentenced to life without parole were significantly less likely to be involved in assaultive conduct than inmates sentenced to less than twenty years' incarceration. Dr. Cunningham looked at other sources, including data from the Virginia Department of Corrections, to support his proposition that past violence in the community, escape history, charges, and convictions are not good predictors of a capital inmate's conduct in prison. The sample presentation slides concluded by stating that Virginia's correctional programming and security measures could reduce the risk that any capital inmate could commit assaultive conduct. The contours of Dr. Cunningham's thesis are apparent: a capital inmate, whether it be Morva or someone else, will not likely be an increased risk to institutional security because many capital convicts, although not all, did not attack inmates or staff while incarcerated and because the Virginia Department of Corrections can keep capital inmates in long-term segregation for life.

The Supreme Court of Virginia denied the claim on direct appeal, finding no error in the circuit court's refusal to appoint Dr. Cunningham. The Supreme Court of Virginia recognized that due process requires a capital defendant be allowed the opportunity to rebut information that a jury could consider, and may have relied upon, when recommending a death sentence. Morva v. Commonwealth, 278 Va. at 348, 683 S.E.2d at 564. Although the Supreme Court of Virginia recognized that "Dr. Cunningham proposed to provide testimony that concerns Morva's history and background, prior behavior while incarcerated, age and educational attainment, and such factors might bear on his adjustment to prison[, ]" it determined that Dr. Cunningham's expected testimony about the rates of assaults and prison security conditions "were not relevant to the determination the jury has to make concerning Morva's future dangerousness." Id. at 350, 683 S.E.2d at 565. The Supreme Court of Virginia did not consider Dr. Cunningham's description of correctional programming and security measures to be unique to Morva as the conditions would be "true of any other inmate as well, and it is evidence of the effectiveness of general prison security[.]" Id. at 351, 683 S.E.2d at 565. Thus, the Supreme Court of Virginia concluded that the circuit court did not err because Dr. Cunningham's proposed testimony was not relevant or probative as to Morva's future dangerousness and that a fundamentally unfair trial did not occur without that testimony. Id. at 351, 683 S.E.2d at 566. Concluding that Dr. Cunningham's opinion was founded on statistics derived from generalized prison studies and was not grounded in Morva's character, record or the circumstances of the offense, the Supreme Court of Virginia found no error in the circuit court's exclusion of this evidence as irrelevant to the issue of Morva's future dangerousness.

In rejecting Morva's argument that the circuit court's refusal to appoint Dr. Cunningham violated due process, the Supreme Court of Virginia addressed three United States Supreme Court decisions: Gardner, Skipper, and Simmons. Consistent with the Supreme Court of Virginia's conclusion, none of those cases constitutionally required admission of Dr. Cunningham's opinion.

In Gardner, the United States Supreme Court found a due process violation when a defendant was sentenced to death based, at least in part, on confidential information contained in a presentence report, which he had no opportunity to explain. The Court first "acknowledged its obligation to re-examine capital-sentencing procedures against evolving standards of procedural fairness in a civilized society." 430 U.S. at 357. The Gardner Court reaffirmed that "death is a different kind of punishment from any other that may be imposed in this country[, ]" and that the sentencing process must comply with the Due Process Clause. Id. at 357-58. The Court rejected the state of Florida's arguments that concerns over confidentiality of sources of information for the presentence report, delays associated with disclosure, and the proper exercise of discretion by trial judges warranted nondisclosure. "We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id. at 362.

Ronald Skipper was convicted of capital murder and rape in South Carolina. Skipper sought to introduce testimony from two jailers and a regular visitor about how he had made a good adjustment to prison, which the state trial court found to be irrelevant and inadmissible. The state trial court said his adjustment was not an issue in the case. During closing argument, the prosecution argued that Skipper would pose disciplinary problems if sentenced to prison and would likely rape other prisoners. Skipper argued that the excluded evidence was relevant mitigating evidence and it was constitutional error not to allow it under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982). The Court framed the issue as "whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment." Skipper, 476 U.S. at 4.

The Court answered the question in no uncertain terms:

It can hardly be disputed that it did. The State does not contest that the witnesses petitioner attempted to place on the stand would have testified that petitioner had been a well-behaved and well-adjusted prisoner, nor does the State dispute that the jury could have drawn favorable inferences from this testimony regarding petitioner's character and his probable future conduct if sentenced to life in prison. Although it is true that any such inferences would not relate specifically to petitioner's culpability for the crime he committed, see Koon I, supra, 278 S.C. at 536, 298 S.E.2d at 774, there is no question but that such inferences would be "mitigating" in the sense that they might serve "as a basis for a sentence less than death." Lockett, supra, 438 U.S. at 604. Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing: "any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose." Jurek v. Texas, 428 U.S. 262, 275. The Court has therefore held that evidence that a defendant would in the future pose a danger to the community if he were not executed may be treated as establishing an "aggravating factor" for purposes of capital sentencing, Jurek v. Texas, supra ; see also Barefoot v. Estelle, 463 U.S. 880 (1983). Likewise, evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer's consideration.

476 U.S. at 4-5 (parenthetical omitted).

In footnote 1, the Court noted the relevance of the evidence of Skipper's past good behavior in prison in light of the prosecution's closing argument that Skipper would pose problems in jail, including rape.

The relevance of evidence of probable future conduct in prison as a factor in aggravation or mitigation of an offense is underscored in this particular case by the prosecutor's closing argument, which urged the jury to return a sentence of death in part because petitioner could not be trusted to behave if he were simply returned to prison. Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death "on the basis of information which he had no opportunity to deny or explain." Gardner v. Florida, 430 U.S. 349, 362 (1977).

476 U.S. at 5 n.1.

Jonathan Simmons beat an elderly woman to death and received a death sentence after trial. During closing argument, the prosecution argued that Simmons' future dangerousness was a factor for the jury to consider when fixing an appropriate punishment. Simmons argued that there was no reason to expect future acts of violence from him in a prison setting. Simmons sought to offer evidence of his ineligibility for parole and an instruction that if sentenced to life imprisonment that he would not be paroled. The trial court refused the proposed instruction. During deliberations, the jury asked a question about parole, and the trial court instructed the jury that they were not to consider parole or parole eligibility. Twenty-five minutes later, the jury returned the death sentence.

Citing Gardner, the Simmons Court noted that the Due Process Clause does not allow the execution of a person on the basis of information which he had no opportunity to deny or explain. The Court noted that the jury may well have misunderstood that Simmons could be released on parole if sentenced to life imprisonment. "The State thus succeeded in securing a death sentence on the ground, at least in part, of petitioner's future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its noncapital sentencing alternative, namely, that life imprisonment meant life without parole. We think it is clear that the State denied petitioner due process." Simmons, 512 U.S. at 162. The Court continued:

In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that he never will be released on parole. The trial court's refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant's future dangerousness in its argument to the jury, cannot be reconciled with our well-established precedents interpreting the Due Process Clause.

Id. at 163-64. The Court continued:

Like the defendants in Skipper and Gardner, petitioner was prevented from rebutting information that the sentencing authority considered, and upon which it may have relied, in imposing the sentence of death. The State raised the specter of petitioner's future dangerousness generally, but then thwarted all efforts by petitioner to demonstrate that, contrary to the prosecutor's intimations, he never would be released on parole and thus, in his view, would not pose a future danger to society. The logic and effectiveness of petitioner's argument naturally depended on the fact that he was legally ineligible for parole and thus would remain in prison if afforded a life sentence. Petitioner's efforts to focus the jury's attention on the question whether, in prison, he would be a future danger were futile, as he repeatedly was denied any opportunity to inform the jury that he never would be released on parole. The jury was left to speculate about petitioner's parole eligibility when evaluating petitioner's future dangerousness, and was denied a straight answer about petitioner's parole eligibility even when it was requested.

Id. at 165-66 (footnote omitted). The Court concluded:

But if the State rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future, the fact that the alternative sentence to death is life without parole will necessarily undercut the State's argument regarding the threat the defendant poses to society. Because truthful information of parole ineligibility allows the defendant to "deny or explain" the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury's attention by way of argument by defense counsel or an instruction from the court.

Id. at 168-69.

To be sure, Morva's prosecutors argued future dangerousness in support of the death penalty. However, Morva's trial did not contain the constitutional infirmities present in Gardner, Skipper or Simmons. First, unlike in Gardner, Morva was not sentenced based on confidential information he had no opportunity to rebut. Second, unlike in Skipper, Morva introduced testimony from a jailer as to his good behavior while on pretrial detention. Third, unlike in Simmons, the circuit court told the jury that life imprisonment meant imprisonment without parole.

Nonetheless, Morva argues that the circuit court placed an unconstitutional limitation on his ability to present mitigation evidence by not appointing Dr. Cunningham as an expert witness. Viewed through the lens of § 2254(d), Morva's argument does not require issuance of the writ as to claim I.

Morva's argument that the Supreme Court of Virginia's ruling runs afoul of the holding in Skipper ignores the salient differences in the evidence presented in his case and in Skipper. Unlike in Skipper, Morva was allowed to present evidence as to his future dangerousness based on how he had behaved in pretrial confinement. In particular, during the sentencing phase of trial, Morva introduced the testimony of Captain Norine Pilkins from the New River Valley Regional Jail. Captain Pilkins testified that Morva had been held at the New River Valley Regional Jail since August 21, 2006 and that he had caused no problems, noting that he was in isolation and locked down 23 hours a day. Thus, the very evidence excluded in Skipper - testimony from a prison guard as to pretrial behavior - was admitted at Morva's trial. As such, the Supreme Court of Virginia's decision was not "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). Given the fact that the jury heard Captain Pilkins' testimony that Morva posed no problems in the New River Valley Regional Jail during the more than one year period that he was held there in pretrial detention, Morva's trial does not run afoul of Skipper. There is no United States Supreme Court decision holding that due process requires expert evidence on a capital defendant's future dangerousness while in prison based on statistical evidence, rather than the "defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604. As such, Morva's argument does not cross the § 2254(d) threshold.

The determination by the Supreme Court of Virginia that due process did not require the appointment of Dr. Cunningham or the admission of his expert opinion was not unreasonable, either factually or legally. As another court considering the proposed testimony of Dr. Cunningham concluded, "[p]ermitting his generalized testimony about prison crime would simply confuse and mislead the jury and invite a decision on an impermissible basis.... Dr. Cunningham's testimony about the capability of the Bureau of Prisons to secure inmates is ...

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