United States District Court, E.D. Virginia, Richmond Division
JOHN A. GIBNEY, Jr., District Judge.
This matter comes back to the Court on remand from the United States Court of Appeals for the Fourth Circuit to consider what, if any, procedurally defaulted claims of ineffective assistance of trial counsel may be raised pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012). Petitioner Anthony Bernard Juniper, an inmate on death row in Virginia, presents three potential claims in his Amended Petition for Writ of Habeas Corpus. (Dk. No. 144.) David W. Zook, the Warden of Sussex I State Prison ("the Warden"), moves to dismiss the Amended Petition. (Dk. No. 146.) Because the Court finds that Juniper's amended claims do not meet the requirements set forth by the Supreme Court in Martinez, each is barred due to procedural default. Accordingly, the Court grants the Warden's Motion to Dismiss and denies Juniper's Amended Petition for Writ of Habeas Corpus.
I. FACTS AND PROCEDURAL HISTORY
The Court previously set forth the grisly facts of the crimes at the heart of this petition in a Memorandum Opinion dated March 29, 2013, which the Court incorporates herein by reference. See Juniper v. Pearson, 2013 WL 1333513, at *1-6 (E.D. Va. Mar. 29, 2013) (Dk. No. 105) vacated in part sub nom. Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013). For the purposes of this Opinion, a brief summary suffices.
On January 16, 2004, in Norfolk, Virginia, police discovered the bodies of Keshia Stephens, her younger brother Rueben Harrison, III, and her two daughters, Nykia Stephens and Shearyia Stephens. Keshia had been stabbed in the abdomen, shot three times, and grazed by a fourth bullet. Rueben had been shot three times. Four-year old Nykia had been shot one time in the head. Two-year old Shearyia had been shot four times while in her mother's arms, including once through the top of her head. Witness statements and DNA evidence implicated Juniper, Keshia's off-and-on boyfriend. While in jail awaiting trial, Juniper admitted to a fellow inmate that he committed the murders.
Following a two-week trial in the Circuit Court for the City of Norfolk, a jury convicted Juniper on four counts of capital murder and other related felony charges. The jury subsequently sentenced Juniper to death for each of the capital murder convictions, finding the death sentence justified by the two aggravating factors of vileness and future dangerousness. Years of appeals and collateral proceedings left Juniper's conviction and death sentence intact, so he turned to the federal courts for relief under 28 U.S.C. § 2254. On March 29, 2013, this Court dismissed Juniper's original § 2254 petition.
In the Final Order denying the petition, the Court certified two questions to the United States Court of Appeals for the Fourth Circuit. ( See Dk. No. 106.) As relevant here, the second question asked whether Juniper was entitled to the appointment of new or additional counsel to determine whether he could assert any claims under Martinez v. Ryan, 132 S.Ct. 1309 (2012), which the United States Supreme Court decided after Juniper filed his original § 2254 petition.
The Fourth Circuit answered that question in the affirmative. Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013) (Dk. No. 119). Specifically, the Fourth Circuit held that when the same counsel represents a habeas petitioner at both the state and federal levels, "and the petitioner requests independent counsel in order to investigate and pursue claims under Martinez in a state where the petitioner may only raise ineffective assistance claims in an initial-review collateral proceeding, ' qualified and independent counsel is ethically required. " Id. at 290. Because this Court denied Juniper's requests for appointment of new federal habeas counsel, the Fourth Circuit vacated this Court's decision "with respect only to the appointment of independent counsel, and remande[ed] for further proceedings." Id.
On February 28, 2014, this Court appointed independent counsel to investigate any possible Martinez claims and allowed Juniper to file an amended petition. (Dk. No. 122.) The Court appointed additional co-counsel for Juniper on March 31, 2014. (Dk. No. 124.)
Juniper filed his Amended Petition on September 8, 2014. (Dk. No. 144.) In it, he presents three new claims under Martinez:
(1) ineffective assistance of state trial counsel in failing to properly challenge the prosecutor's violation of Batson v. Kentucky, 476 U.S. 79 (1986) (Claim VI);
(2) ineffective assistance of state trial counsel in failing to make a constitutional objection to the trial court's exclusion of expert testimony on Juniper's future dangerousness (Claim VII); and
(3) ineffective assistance of state trial counsel and appellate counsel in failing to make constitutional objections to the trial court's jury instructions under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002) (Claim VIII).
The Warden asks the Court to dismiss the Amended Petition. ( See Dk. Nos. 145, 146.)
II. LEGAL STANDARD
Pursuant to the Fourth Circuit's Order, this Court appointed independent federal habeas counsel to examine the record below and determine the availability of any ineffective-assistanceof-state-habeas-counsel claims that might excuse otherwise defaulted ineffective-assistance-ofstate-trial-counsel claims, also called Martinez claims. Explanation of the nature and standards for Martinez claims requires some background in federal habeas procedure.
Federal habeas proceedings brought under 28 U.S.C. § 2254 usually follow years of litigation at many stages in the state court system. The typical procedural journey begins with conviction at the state trial court. If direct appeals through the state court system affirm the conviction, then the defendant may petition the United States Supreme Court for a writ of certiorari. If the Supreme Court denies the petition for certiorari, then the convicted defendant can pursue postconviction relief through the state habeas process. If that state habeas process ultimately yields no relief to the prisoner, he may then file a federal habeas petition under § 2254. Such is the journey Juniper has traveled.
A federal district court reviewing a petition filed under § 2254 must follow certain rules that give respect and finality to the prior state court proceedings. The concept of "procedural default" looms large among those rules. Procedural default dictates that "a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule." Martinez, 132 S.Ct. at 1316. The federal habeas court can excuse such a default and reach the merits of the defaulted claim only if the prisoner can show "cause" for his failure to comply with state rules and "prejudice" from a violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Until 2012, the Supreme Court made clear that mistakes by counsel at state-level postconviction or habeas proceedings could not qualify as "cause" for overcoming procedural default. Id. at 754. That changed with the "narrow exception" set out in Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012).
A. Martinez v. Ryan
In Martinez, an Arizona jury convicted Luis Mariano Martinez of two counts of sexual conduct with a minor, and he received two consecutive life sentences. Id. at 1313. Martinez believed his trial counsel had been constitutionally ineffective, but Arizona law required him to wait to raise any ineffective-assistance-of-counsel claims until a postconviction collateral proceeding. Id. A different attorney filed a postconviction brief claiming he could find no meritorious claims for relief, which gave Martinez the right to file a pro se petition. Id. But Martinez never did, allegedly because the attorney failed to advise him that he needed to do so in order to preserve those claims. Id. By the time Martinez retained new counsel and filed a second state habeas petition, Arizona law barred him from pursuing the ineffectiveness claim because it could have been raised earlier. Id.
When Martinez filed his § 2254 petition in the federal district court, he argued he could overcome the procedural default because his own state-habeas counsel's failure to advise him of the need to file the pro se petition amounted to constitutionally ineffective assistance at the habeas level. Id. This habeas-counsel ineffectiveness, Martinez argued, provided the cause necessary to overcome procedural default. Id. at 1314-15. The district court, relying on the rule from Coleman, denied the claim, because "an attorney's errors in a postconviction proceeding do not qualify as cause for default." Id. at 1315 (citing Coleman, 501 U.S. at 754-55). The Court of Appeals for the Ninth Circuit affirmed. When Martinez appealed to the United States Supreme Court, he asked the Court to find that prisoners have a constitutional right to effective assistance of counsel in a state collateral proceeding where that was their one chance to raise ineffectiveassistance-of-trial-counsel claims, thus creating a way to overcome procedural default of those claims. Id.
The Supreme Court avoided that question, however, and instead opted to find a "narrow exception" to Coleman without constitutionalizing the issue: "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. (emphasis added). This equitable rule has been broken down into four elements:
a federal habeas petitioner who seeks to raise an otherwise procedurally defaulted claim of ineffective-assistance-of-trial-counsel before the federal court may do so only if: (1) the ineffective-assistance-of-trial-counsel claim is a substantial one; (2) the "cause" for default "consist[s] of there being no counsel or only ineffective counsel during the state collateral review proceeding"; (3) "the state collateral review proceeding was the initial review proceeding in respect to the ineffectiveassistance-of-trial-counsel claim"; and (4) state law "requires that an ineffectiveassistance-of-trial-counsel claim be raised in an initial-review collateral proceeding."
Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (quoting Trevino v. Thaler, 133 S.Ct. 1911, at 1918)). If, and only if, the prisoner meets each element, the federal habeas court can "find cause, ' thereby excusing a defendant's procedural default." Trevino, 133 S.Ct. at 1918.
Accordingly, in order for the Court to reach the merits of Juniper's three amended claims, each must meet the four elements of Martinez.
At the outset, the Court can quickly pass through the third and fourth elements, because Virginia requires ineffective-assistance-of-counsel claims to be raised only in an initial-review collateral proceeding. See Lentz v. Commonwealth, 261 Va. 451, 460, 544 S.E.2d 299, 304 (2001) ("Claims raising ineffective assistance of counsel must be asserted in a habeas corpus proceeding and are not cognizable on direct appeal."). With these elements satisfied by Virginia law, the Court focuses on the first and second elements to determine whether Juniper can overcome the procedural-default bar. Due to the matrioshkan design of Martinez, some explanation of these two elements simplifies the analysis.
The first element of Martinez deals with the underlying, otherwise procedurally defaulted ineffective-assistance-of-trial-counsel claim. Specifically, the prisoner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Martinez, 132 S.Ct. at 1318. The Supreme Court indicated that the "some merit" threshold bore some relation to the standards for issuing a certificate of appealability ("COA"). Id. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Phrased in the alternative, a claim is not substantial if "it does not have any merit or is wholly without factual support." Id. at 1319. Obviously, this requires consideration of the claim under the standards for effective assistance of counsel first outlined ins. Strickland v. Washington, 466 U.S. 668 (1984): (1) whether the petitioner's trial "counsel's performance was deficient"; and (2) whether "the deficient performance prejudiced the defense." 466 U.S. at 687.
The second element of Martinez focuses on the petitioner's state-habeas proceedings. Specifically, the petitioner must establish that he either lacked counsel or had ineffective counsel during his state-habeas proceedings. 132 S.Ct. at 1318. If the prisoner lacked counsel entirely, then the element is met automatically. If the prisoner had state-habeas counsel, however, this element requires a full analysis under Strickland to determine whether the state-habeas counsel's conduct fell below the constitutionally permissible threshold and prejudiced the outcome of the habeas proceeding. To be clear, this Strickland analysis applies to the conduct of the prisoner's state-habeas counsel, and asks specifically whether he or she was constitutionally ineffective for failing to raise trial counsel's ineffectiveness.
Although Martinez separates the first and second elements, the two blend together. Specifically, the prejudice prong for habeas-level ineffectiveness requires a consideration of the merits of the underlying trial-level ineffectiveness claim, because Strickland prejudice requires consideration of "whether it is reasonably likely' the result would have been different" in that proceeding. Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland, 466 U.S. at 693). In reviewing a Martinez claim, a court asks whether the state-level habeas proceeding would have come to a different result if habeas counsel brought forward the trial-level ineffectiveness claim. "Thus, the facts that bear on the Strickland prejudice analysis and the Martinez substantiality analysis will largely be the same, " because both questions ask a court to consider the merits of that underlying claim. Teleguz v. Davis, No. 7:10-cv-254, 2014 WL 3548982, at *24 (W.D. Va. July 17, 2014). Somewhat circuitously, therefore, the Martinez exception to the procedural-default bar includes within it consideration of the merits of the procedurally defaulted claim.
Juniper's amended petition calls for analysis under these serpentine rules. In the amended petition, Juniper raises three claims of ineffective assistance of counsel that he did not raise during his state-habeas proceedings. Because Virginia's postconviction collateral proceeding rules fall within the Martinez exception, Juniper must show that his state-habeas counsel was ineffective under Strickland and that his underlying ineffective-assistance-of-trialcounsel claims have some merit to excuse this procedural default.
A preliminary merits review of each ineffective-assistance-of-trial-counsel claim gives the Court the most efficient manner in which to decide the applicability of Martinez to the amended claims. If an underlying trial-ineffectiveness claim has no merit, then it fails not only under Martinez 's first element, but also the second element, because state-habeas counsel could not have been ineffective for failing to raise a meritless claim. See, e.g., Moore v. United States, 934 F.Supp. 724, 731 (E.D. Va. 1996) ("Failure to raise a meritless argument can never amount to ineffective assistance."). If the underlying claim has some merit, then the Court must decide whether state-habeas counsel's failure to raise it during the initial-review collateral proceedings violated the standards from Strickland. If state-habeas counsel lived up to the constitutional standard, then the amended claims are procedurally defaulted. If, on the other hand, the amended claims meet both the first and second elements, then the Court can determine the appropriate relief on the merits.
A. Claim VI
Juniper alleges that his state trial counsel were ineffective in their attempts to challenge the prosecution's Batson violations. Specifically, he makes three arguments. First, and primarily, he argues that his counsel should have pressed harder during one of the Batson challenges raised during jury selection by conducting a comparative juror analysis between a struck juror and a purportedly similarly situated non-black juror. Second, he argues his counsel were ineffective for failing to object when the trial court inappropriately provided the prosecutor with a race-neutral reason for striking a black venire member. Third, he argues his counsel were ineffective for failing to preserve a record of panel members' races so that a Batson objection could be adequately pursued on appeal.
As discussed above, the Strickland framework requires Juniper to show both that his trial counsel's conduct was deficient by falling below an objective standard of reasonableness and that this deficiency prejudiced the outcome of the proceeding. Strickland, 466 U.S. at 688. With respect to prejudice, "an analysis focusing solely on the mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
Here, the ineffective-assistance-of-trial-counsel claim requires a review of the Batson framework. In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held that the use of peremptory challenges to strike jurors on the basis of their race violates the Fourteenth Amendment. Batson challenges follow a three-step process:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (internal quotation marks and alterations omitted). "The critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike." Miller-El v. Cockrell (" Miller-El I "), 537 U.S. 322, 338-39 (2003). The credibility of the race-neutral justification hinges on, "among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in an accepted trial strategy." Id. "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson 's third step." Miller-El v. Dretke (" Miller-El II "), 545 U.S. 231, 241 (2005). With all of that said, the burden never leaves the party opposing the strike, "and a trial court finding regarding the credibility of an attorney's explanation of the ground for a peremptory challenge is entitled to great deference." Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015) (internal citations and quotation marks omitted).
Within the Strickland framework, Juniper must show that his trial counsel's conduct during the Batson challenge fell below the "objective standard of reasonableness" by failing to live up to "prevailing professional norms." Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688). Juniper must also show that, absent these "unprofessional errors, the result of the proceeding would have been different." Id. In this setting, the relevant proceeding is the trial court's consideration of the Batson challenge. Accordingly, Juniper must show that, but for his trial counsel's ineffectiveness in failing to make certain arguments, the result of the Batson challenge would have been different, i.e., the trial court would have found the prosecutor in violation of Batson. 
1. Ineffectiveness for Failing to Use Comparative Juror Analysis
i. Relevant Background
During voir dire, the following exchange took place between the trial court and two prospective jurors, Charlotte McClain, a black female, and Gerald Hackworth, a purportedly non-black male:
THE COURT: Have you or has any member of your immediate family ever been prosecuted by the Norfolk Commonwealth Attorney's Office?
A PANELIST: No.
A PANELIST: Yes.
A PANELIST: Yes.
THE COURT: Yes? That's Ms. McClain.
MS. MCCLAIN: Uh-huh.
THE COURT: Was it you or a relative?
MS. MCCLAIN: A relative.
THE COURT: What relation?
MS. MCCLAIN: Brother.
THE COURT: How long ago was that?
MS. MCCLAIN: A year ago.
THE COURT: Was he ...