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Lawlor v. Zook

United States District Court, E.D. Virginia, Norfolk Division

June 15, 2017

DAVID W. ZOOK, Warden, Sussex I State Prison, Respondent.


          Mark S. Davis United States District Judge.

         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"), a Virginia state inmate. ECF No. 20. Petitioner was convicted for the capital murder of Genevieve Orange and was sentenced to death on July 2, 2011. The Petition alleges numerous violations of federal constitutional rights arising out of Petitioner's conviction and sentencing in the Circuit Court of Fairfax County, Virginia. Respondent, the Warden of Sussex I State Prison ("Respondent"), filed an answer and moved to dismiss the Petition, and a reply was filed by Petitioner. ECF Nos. 27-29, 35. Petitioner thereafter filed a related motion seeking to supplement the record. ECF No. 38.

         The Petition and motion to supplement were referred to a United States Magistrate Judge for report and recommendation ("R&R") pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia. On August 26, 2016, the Magistrate Judge issued 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 § 2254 petition in its entirety. R&R 2, ECF No. 50. By copy of the R&R, Petitioner and Respondent were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge.

         In light of the number, and complexity, of the procedural and substantive issues raised in the Petition, and addressed in the R&R, this Court granted Petitioner's motion seeking an extension of time to file objections to the R&R. ECF Nos. 51- 52. On October 24, 2016, this Court received Petitioner's objections, which challenge the recommendations in the R&R as to sixteen of the eighteen claims raised in the Petition. ECF No. 53. On December 5, 2016, the Court received Respondent's brief in opposition to the objections. ECF No. 54. On December 29, 2016, Petitioner filed a motion seeking leave to amend his § 2254 Petition. ECF No. 55. Such motion was fully briefed by mid-January, 2017. ECF Nos. 56, 57.

         Having reviewed the record and examined Petitioner's objections to the R&R, and having made de novo 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 GRANTED, and the § 2254 Petition is DISMISSED and DENIED. Additionally, the Court DENIES Petitioner's motion for leave to amend.


         The Court adopts and incorporates herein the Magistrate Judge's account of the facts and procedural background of Petitioner's state case and the instant federal habeas case. R&R 2-5.[1] In summary, at the conclusion of the guilt phase of Lawlor's state trial, the jury returned unanimous verdicts of guilt on two capital murder charges (murder in the commission of abduction with intent to defile, and murder in the commission of rape or attempted rape). At the conclusion of the penalty phase, the sentence was fixed as "death" by the same jury after the jury "found unanimously and beyond a reasonable doubt" that, as to both capital convictions, "there is a probability that [Petitioner] would commit criminal acts of violence that would constitute a continuing serious threat to society" (hereinafter "future dangerousness") and that Petitioner's "conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind, or aggravated battery to the victim." Joint Appendix ("JA") 12940-42. The presiding judge, after conducting a separate sentencing hearing, found "no reason to intercede" 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 Court of Virginia affirmed the convictions and sentence. Lawlor v. Com., 285 Va. 187, 738 S.E.2d 847 (2013). Petitioner thereafter filed a petition for a writ of habeas corpus to the Supreme Court of Virginia ("state habeas petition"), and such petition was dismissed. Lawlor v. Davis, 288 Va. 223, 229, 764 S.E.2d 265, 273 (2014). Petitioner timely filed the instant § 2254 Petition in this Court, and now that the referred proceeding before the Magistrate Judge has been completed, this matter is ripe for review.


         A. Standard for Reviewing the R&R

         "The Federal Magistrates Act requires a district court to 'make a de novo determination of those portions of the [R&R] ... to which objection is made.'" Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); see also R. Gov. § 2254 Cases in U.S. Dist. Courts 8(b). Because "[s]ection 636(b)(1) does not countenance a form of generalized objection, " but rather, requires "a party's objection to a magistrate judge's report be specific and particularized, " de novo review must only be performed when an objection is advanced with "sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007) . When a party fails to advance a specific objection, "a district court . . . must *only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond, 416 F.3d at 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). After performing the appropriate level of review, the district court may "accept, reject, or modify" the Magistrate Judge's R&R, "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 to a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Before a federal court may consider a writ of habeas corpus presented by an individual in state custody, the petitioner must first exhaust all available state court remedies or demonstrate the absence or ineffectiveness of such remedies. Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (citing 28 U.S.C. § 2254(b)); see West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015), cert, denied sub nom. West v. Westbrooks, 136 S.Ct. 1456 (2016) (describing exhaustion as necessary to render a state prisoner "eligible" for relief under § 2254). To satisfy the exhaustion requirement, and demonstrate eligibility for federal habeas relief, the 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 legal principles associated with each claim." Longworth, 377 F.3d at 448 (internal quotation 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. Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) . Importantly, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. Maguire, 502 U.S. 62, 67-68 (1991). "Matters of State law not involving federal constitutional issues are [therefore] not appropriate grounds for federal habeas corpus relief, " and errors "merely related to a State procedural question . . . may not be reached in a federal habeas corpus petition unless the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice, or exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Hailey v. Dorsey, 580 F.2d 112, 115 (4th Cir. 1978) (internal quotation marks and citations omitted). As there is "no federal constitutional right to post-conviction proceedings in state court, " a federal habeas petitioner is generally not entitled to relief based on errors occurring during a state habeas proceeding because 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 state court remedies have been exhausted as to habeas claims that are cognizable in federal court, " [a] state prisoner seeking § 2254 habeas corpus relief faces several procedural obstacles." Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009) . Failure to comply with applicable state procedural requirements can result in a "procedural default" which generally precludes a federal court from adjudicating the merits of a petitioner's claims. Id. (citing Vinson v. True, 436 F.3d 412, 417 (4th Cir. 2006)). As explained in detail by the United 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] the central concern of the writ of habeas corpus.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 697 (1984)) .

Richmond v. Polk, 375 F.3d 309, 322 (4th Cir. 2004) (omission in original) .[2]

         As to fully exhausted cognizable claims that are not defaulted, a federal court may grant relief on a claim adjudicated on the merits by a state court only if such adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that 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) (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 of materially indistinguishable facts."[3]Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Importantly, a § 2254 motion cannot be granted "simply because [the federal district] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly", - rather, relief is only warranted when the erroneous application is determined to be "objectively unreasonable." Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en banc) (quoting Williams, 529 U.S. at 411).

         A state court makes an unreasonable determination of fact when its application of the law depends on a finding of fact that is simply not supported by evidence in the state court record. Wiggins v. Smith, 539 U.S. 510, 528 (2003). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance"; rather, it is only when "reasonable minds reviewing the record" could not disagree about the error that a federal court performing § 2254(d)(2) review may reject the finding of the state court. Wood v. Allen, 558 U.S. 2 90, 3 01 (2010) (quotation marks and citations omitted). Additionally, when performing "§ 2254(d)(2) review" in this Circuit, such review is informed by "§ 2254(e)(1), which provides that 'a determination of a factual issue made by a State court shall be presumed to be correct, ' and the petitioner 'shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011).[4]

         C. Strickland Ineffective Assistance Standard

         The Sixth Amendment to the Constitution of the United States provides that "the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court has interpreted the right to counsel as providing a defendant "'the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Here, Petitioner advances multiple stand-alone ineffective assistance claims where the asserted basis for relief is Lawlor's contention that he was denied his Sixth Amendment right to constitutionally effective representation during his trial. Additionally, as to several constitutional claims that have been deemed defaulted pursuant to an adequate state procedural rule, Petitioner alleges that his trial counsel performed at a constitutionally deficient level in an effort to demonstrate "cause" for failing to raise the now-defaulted claim at an earlier time. See Mackall v. Angelone, 131 F.3d 442, 446 (4th Cir. 1997) ("[W]hen attorney error amounts to constitutionally ineffective 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 under the less deferential standard articulated in § 2254(d)(2). Here, similar to Wood, the result is the same irrespective of which statutory subsection is applied. 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 establish both that: (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) counsel's constitutionally deficient performance caused the petitioner prejudice. Strickland, 466 U.S. at 687-88; see Clagett v. Angelone, 209 F.3d 370, 380 (4th Cir. 2000) (Ml]n order to establish a claim of ineffective assistance that can serve as cause to excuse procedural default, [the § 2254 petitioner] must satisfy the test set forth in Strickland."). "Vague and conclusory allegations contained in a [federal habeas] petition" are insufficient to carry a petitioner's burden under Strickland, and such allegations may therefore "be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (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 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts strongly presume that counsel exercised reasonable professional judgment, and only in "relatively rare situations" will a § 2254 motion establish that, "'in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011) (quoting Strickland, 466 U.S. at 690) . As it is all too easy to challenge an act, omission, or strategy, once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. As recently reiterated by the Fourth Circuit, the "basic lesson" of Strickland is not just deference but high deference, and attorneys are permitted to "be selective and strategic without risking an ineffective assistance of counsel claim." United States v. Mason, 774 F.3d 824, 828, 830 (4th Cir. 2014) (citations omitted).

         The second prong of Strickland requires a petitioner to "affirmatively prove prejudice, " which requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If a petitioner fails to prove either of the two prongs of the Strickland test, the court need not evaluate the other prong. Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013).

         Having carefully reviewed the applicable standards governing this Court's review, it is important to clarify at the outset that the question before this Court when evaluating Petitioner's Strickland claims is not whether 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 question is whether the state court's application 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 district 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 itself.
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. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) . And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. " [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. 111, 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 result it would reach under de novo review: Because the Court of Appeals had little doubt that Richter's Strickland claim had merit, the 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, (2003)].
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court 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 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 review of state convictions frustrates both 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 Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).... Even under de novo review, the standard for judging counsel's representation is a most deferential one. . . .
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) 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, 101-03, 105 (2011).


         A. Motion to Supplement the Record

         The Court first addresses Petitioner's motion to supplement the record, as it is a threshold issue that could affect Petitioner's claims. Petitioner objects to the R&R's recommendation that this Court deny the pending motion to supplement. Having considered the record on this issue, [5] as well as relevant case law, and having conducted a de novo review, this Court adopts and approves the analysis in the R&R, and adopts the recommendation that the motion to supplement be denied. Set forth below is additional analysis to support the conclusion in the R&R that the "Supreme Court of Virginia fully adjudicated Lawlor's claims on the merits." R&R 11.

         In Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) (Winston I), the Fourth Circuit held that the denial of a state habeas claim is not entitled to deference under 28 U.S.C. § 2254(d) if the state court record "ultimately proves to be incomplete, " because a "judgment on a materially incomplete record is not an adjudication on the merits for purposes of § 2254(d)." Id. at 555-56 (citations omitted) . As this Court has previously-recognized, "[t]he Fourth Circuit's finding that the state court had not adjudicated the claim on the merits in Winston [I] appeared to rely heavily on the fact that the petitioner offered, 'for the first time in federal habeas proceedings, new, material evidence that the state court could have considered had it permitted further development of the facts.'" Waters v. Clarke, No. 2:llcv630, 2012 WL 4498914, at *6 (E.D. Va. Sept. 28, 2012) (quoting Winston I, 592 F.3d at 555). While the Supreme Court subsequently issued an opinion that arguably called Winston I into doubt, Cullen v. Pinholster, 563 U.S. 170 (2011), the Fourth Circuit later reaffirmed the holding of Winston I, explaining that "nothing in Pinholster indicates that the [Supreme] Court's disposition casts doubt on-much less overrules-our discussion of the adjudicated-on-the-merits requirement in Winston I." Winston v. Pearson, 683 F.3d 489, 501-02 (4th Cir. 2012) (Winston II) . As this Court explained after Winston II 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. In Winston II, the Fourth Circuit noted that the claim at issue 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 Circuit "found in Winston I that the state court's refusal to allow Winston to develop the record, combined with the material nature of the evidence that would have been produced in state court were appropriate procedures followed, rendered its decision unbefitting of classification as an adjudication on the merits." Id. (emphasis added).

Waters, 2012 WL 4498914, at *8 (alteration in original).

         Here, having reviewed the nature of the requests for discovery that Lawlor made in state court (motion for leave to conduct discovery, motion for expert assistance, and motion for an evidentiary hearing), and the evidence later developed in federal court, this Court finds that the claims that Petitioner now seeks to supplement, Claims V, X, and XII, were fully adjudicated on the merits in state court because: (1) Lawlor fails to demonstrate that any of the state court's decisions denying requests for discovery were unreasonable; and (2) Lawlor fails to demonstrate the "material" nature of the evidence he now seeks to introduce. See Brizuela v. Clarke, 112 F.Supp.3d 366, 375-76 (E.D. Va. 2015) ("Both Winston I and Winston II are inapposite to this case, as petitioner has failed to identify a single piece of material evidence that the Supreme Court of Virginia failed to consider.").

         As to Claim V, Petitioner seeks to introduce a recently created affidavit from defense expert psychopharmacologist Dr. Alexander Morton, Jr. ("Dr. Morton") discussing information he obtained, and conclusions he reached, based on a recent clinical interview of Lawlor. First, although Lawlor did file a motion in state court during his state habeas proceedings seeking to have an expert psychopharmacologist appointed to interview Petitioner, the denial of such motion was reasonable in light of the fact that evidence already before the state court demonstrated the absence of any need for further factual development. Importantly, the Supreme Court of Virginia already had before it a post-trial declaration prepared by Dr. Morton that expressly addressed expert conclusions/testimony that Dr. Morton asserts he could have, and should have, made at trial had defense counsel been more diligent. State Habeas App. 561-70. Because the state court considered such evidence, but determined that it was not admissible and would not have been rendered admissible if Dr. Morton had the opportunity to interview Petitioner, Lawlor fails to demonstrate an unreasonable refusal by the state court to expand the factual record. See Winston II, 683 F.3d at 496 (explaining that "de novo review might be appropriate" when "a state court unreasonably refuses to permit" further factual development).

         Second, comparing Dr. Morton's recently updated post-interview declaration to his earlier declaration that was before the state court, it is apparent that the evidence Lawlor now seeks to introduce is not "' [n]ew, material evidence'" so as to demonstrate that the state court ruling was based on a record that "'ultimately proves to be incomplete.'" Id. at 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, and Petitioner's Claim V, with or without the new declaration, faces the same hurdles, including the fact that Dr. Morton is precluded from basing his conclusions on hearsay evidence that he obtained solely from interviewing Lawlor, see Lawlor, 288 Va. at 233, 764 S.E.2d at 275 (explaining that ''a[n] expert may not relate hearsay evidence to the jury when providing his opinion testimony, " and that "Lawlor fails to proffer any evidence Dr. Morton could have gleaned from an interview with him that would have been admissible") (citations omitted). Because the Supreme Court of Virginia fully adjudicated Claim V on the merits, this Court's review is properly constrained to the record before the state court.[6]

         As to Claims X and XII, Petitioner seeks to introduce an unsworn psychological expert report from Dr. Victoria Reynolds (discussing Lawlor's alleged sexual victimization when he was a child, as well as his drug and alcohol dependence) and an undated declaration from Dr. Joette James (similarly discussing Lawlor's traumatic childhood experiences and psychological development). ECF Nos. 39-2, 39-3. Importantly, however, Lawlor never sought to present such evidence to the state court. Rather, in addition to his state-court motion seeking to appoint a psychopharmacologist, Petitioner previously sought: (1) a plenary evidentiary hearing (without any assertion that there were material disputed facts regarding testimony from Dr. Reynolds or James, instead focusing only on evidence relevant to Petitioner's Batson challenge); and (2) "discovery" in order to investigate (a) specific evidence that was allegedly "missing, " (b) the mental health records of Petitioner's ex-fiancee, and (c) the qualifications of a blood spatter expert that testified at Lawlor's trial.[7] 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 foreclose further reasonable development of the record. Cf. Burr v. Lassiter, 513 F.App'x 327, 341 (4th Cir. 2013) ("The fact that [the petitioner'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.").[8]

         Separately, the Court finds that the proposed declarations advanced in support of Claims X and XII are not the type of "material" evidence that would render the state court decision "unbefitting of classification as an adjudication on the merits." Winston II, 683 F.3d at 502. Notably, in denying habeas relief, the Supreme Court of Virginia expressly considered and rejected Petitioner's claim regarding the additional testimony that defense expert Dr. James Hopper purportedly would have offered during the penalty phase if defense counsel had called him as a witness, including: (1) "the abuse and neglect Lawlor suffered as a child" and how it "negatively affected his ability to plan, make decisions, and regulate his emotions and behavior"; and (2) "that Lawlor's history of neglect and abuse and the resulting behavioral and interpersonal deficits led Lawlor to addiction and a cycle of sobriety and relapse, often involving criminal activity and incarceration, and this cycle was exacerbated by the lack of treatment for his underlying issues." Lawlor, 288 Va. at 244, 764 S.E.2d at 282. In concluding that such proffered evidence was merely "cumulative mitigating evidence, " the Supreme Court of Virginia carefully reviewed the evidence that had been presented at trial, to include testimony from Lawlor's family and his therapist, Mary Fisher, indicating that "Lawlor was an abused and neglected child who turned to drugs and alcohol" and testimony from "Dr. Morton, Lawlor's expert psychopharmacologist, and Fisher" indicating that "individuals who suffer childhood trauma and have 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 health issues." Id. at 245, 764 S.E.2d at 282. This Court therefore concludes that the newly proffered expert reports merely provide additional "cumulative" mitigating evidence that is not "material" to the proper resolution of Claims X or XII. For all of the above stated reasons, as well as the reasons stated in the R&R, Petitioner's motion to supplement is denied.

         B. Timeliness of § 2254 Petition

         The one-year limitations period applicable to the filing of § 2254 motions "is not jurisdictional, " but is instead "an affirmative defense that the state bears the burden of asserting." Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002) (citations omitted). Here, Respondent did not raise such defense, and the Magistrate Judge sua sponte noted in the R&R that the instant motion was "timely." Petitioner does not object to such finding, but does "point out" that Petitioner disagrees with the Magistrate Judge's precise calculation of the deadline for filing his § 2254 petition. This Court finds it unnecessary to address the precise deadline because: (1) Respondent never challenged the timeliness of the § 2254 motion; and (2) it is undisputed that such motion was in fact timely filed. This Court therefore ADOPTS only the Magistrate Judge's sua sponte observation that the Petition is timely.

         C. § 2254 Claim by Claim Analysis

         The R&R individually addressed each of Petitioner's eighteen habeas claims. Petitioner filed objections to the Magistrate Judge's Recommendation as to sixteen of the eighteen claims. For each claim on which Petitioner properly advanced specific and particularized objections, this Court conducted a de novo review, and the results of such review are articulated below. Midgette, 478 F.3d at 621-22. For those matters that lack a particularized objection, or any objection at all, the Court has performed a "clear error" review. Diamond, 416 F.3d at 315. Prior to reviewing each claim, the Court 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 rather, whether the state court's ruling was an "unreasonable application of clearly established Federal law." Richter, 562 U.S. at 101 (citation and quotation marks omitted). Stated differently, habeas relief is precluded "so long as fairminded jurists could disagree on the correctness of the state court's decision." Id. (citations and quotation marks omitted).

         1. Claim I

         Petitioner's first claim asserts that the trial court improperly prevented the defense from asking the necessary voir dire questions to identify "substantially impaired" jurors. Such claim asserts both that defense counsel was unable to identify jurors who may have predetermined that the death penalty was the proper punishment and jurors who would not fairly consider mitigating evidence presented during the penalty phase. The Supreme Court of Virginia rejected such claim on direct appeal. The R&R independently addressed each subpart of such claim and recommends dismissal of both subparts. Petitioner objects to the R&R's findings as to both subparts, and after conducting a de novo review, this Court adopts the analysis and recommendations in the R&R, with the following clarification.

         As highlighted in Petitioner's objections, the Supreme Court has held as follows:

Any juror who would impose death regardless of the facts and circumstances of conviction cannot 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. . . . 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. Illinois, 504 U.S. 719, 735-36 (1992) (internal citations and footnote omitted). Applying such rule, Lawlor asserts that defense counsel was improperly limited from conducting an adequate voir dire, 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, and of Lawlor's trial transcript, plainly illustrate that the Supreme Court of Virginia did not unreasonably apply controlling Supreme Court precedent. Notably, while the trial transcript reveals that the trial judge limited defense counsel from asking, and re-asking, multiple questions going to the issue of a prospective juror's "viewpoint" on the death penalty and/or viewpoint as to specific species of mitigating evidence, such limitations were only enforced after sufficient questions were asked to ensure that prospective jurors: (1) had not predetermined the appropriate punishment based on personal beliefs (in favor of, or against, the death penalty); and (2) would not decide on whether death was an appropriate punishment in this case until after they considered all relevant aggravating and mitigating circumstances. See, e.g., JA 8679-85, 8786-92, 8867-76.[9]Petitioner fails to demonstrate that clearly established Supreme Court precedent mandates a more searching inquiry; to the contrary, the trial judge clearly acted within his discretion when denying Petitioner's counsel the right to ask certain additional questions regarding prospective jurors' viewpoints on the death penalty and/or their viewpoint on specifically identified species of mitigation evidence. See Yeatts v. Angelone, 166 F.3d 255, 265-66 (4th Cir. 1999) (explaining that a "capital defendant must be allowed on voir dire to ascertain whether prospective jurors are unalterably in favor of the death penalty in every case, " and while asking questions "directed simply to whether a jury can be fair . . . are insufficient, " asking a prospective juror whether he or she would "be able to consider voting for a sentence less than death, " along with associated questions addressing whether he or she would be willing to consider imposing death, is sufficient to determine whether such juror "entertains opinions on capital punishment that would prevent or substantially impair the performance of his [or her] duties as a juror") (citation omitted); United States v. Fulks, 454 F.3d 410, 428 (4th Cir. 2006) ("Morgan only requires the exclusion of jurors who would categorically reject any mitigating evidence offered by the defendant.") (citations omitted). Petitioner's first claim is therefore dismissed.

         2. Claim II

         Petitioner's second claim asserts that his due process rights were violated based on the trial court's contradictory rulings and hostile treatment of defense counsel during voir dire. Petitioner does not object to the analysis/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, and Claim II is dismissed.

         3. Claim III

         Petitioner's third claim asserts that the trial court erred by allowing Petitioner to be convicted and sentenced by a jury that was assembled in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner separately asserts that his trial counsel was constitutionally deficient for failing to raise a Batson challenge at the conclusion of jury selection. The Supreme Court of Virginia held 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 of the Strickland test. The R&R concludes that because the state court's default analysis was based on an adequate and independent state law ground, Lawlor's direct claim must fail unless he can demonstrate "cause" and "prejudice" sufficient to overcome his default. See Mu'Min v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997) ("Absent cause and prejudice or a miscarriage of justice, a federal court sitting in habeas may not review a constitutional claim when a state court has declined to consider its merits on the basis of an adequate and independent state procedural rule.") (citation omitted). The R&R further concluded that because the Supreme Court of Virginia's Strickland analysis was not unreasonable, Petitioner cannot obtain relief on his ineffective assistance claim, nor can he use counsel's allegedly deficient performance as a basis to excuse the default of the direct Batson claim. While Petitioner purports to broadly object to "each and every ground" on which the Magistrate Judge ruled, he does not challenge the fact that his direct Batson claim was procedurally defaulted pursuant to an adequate and independent state procedural rule, but instead squarely challenges the application of Strickland with respect to defense counsel's failure to raise a Batson claim. Finding no clear error in the R&R's conclusion that Petitioner's direct Batson claim is defaulted based on an adequate and independent state rule, and having reviewed the remainder of this issue de 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 viable, or even "a strong case for relief" under Strickland, but rather, "whether there is any reasonable argument that counsel satisfied Strickland7s deferential standard." Richter, 562 U.S. at 102, 105. Here, the Supreme Court of Virginia had a "reasonable argument" that defense counsel's decision not to advance a Batson challenge satisfied the deferential Strickland performance standard because, even in hindsight, Petitioner's Batson argument in his state habeas petition relied only on statistics. Although Petitioner appears correct that there was mathematical evidence of a possible bias, there was no other evidence of bias to undercut the reasonableness of the state court's findings. 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" can differ on Batson's application in a case where the prosecution uses most of its preemptory strikes on minority members of the venire, the Allen majority opinion concludes that the use of "raw statistics" to determine whether a prima facie Batson claim is proven is "both selective and uninformative, " and that while statistics are surely an important factor in the Batson analysis, they are "at best, manipulable and untrustworthy absent a holistic view of the circumstances to which they apply." Id. at 330. Stated differently, while Batson itself states that "a 'pattern' of strikes against [a given racial group] included in the particular venire might give rise to an inference of discrimination, " it also states that the court "should consider all relevant circumstances" to determine whether a defendant has established a prima facie case. Batson, 476 U.S. at 96-97 (emphasis added). Here, the Supreme Court of Virginia was not unreasonable in concluding that defense counsel performed within constitutional requirements by opting not to raise a Batson challenge based on statistics alone in a case where neither the defendant, nor the victim, were minorities, [10] and where Petitioner fails to demonstrate that minority venire members were questioned differently, or otherwise treated differently, than non-minority members. Stated differently, the Supreme Court of Virginia was not unreasonable in finding that there was no other direct or circumstantial evidence of a bias, and that statistics alone did not mandate that a motion be filed.

         Alternatively, Petitioner fails to demonstrate that the Supreme Court of Virginia was unreasonable in its Strickland prejudice analysis. First, Petitioner's assertion, that the Supreme Court of Virginia erred in failing to recognize that Batson error qualifies as a "structural error, " is rejected as the question before this Court is whether Supreme Court precedent clearly establishes that counsel's failure to raise a Batson claim constitutes structural error, and it is decidedly not so established. See United States v. Kehoe, 712 F.3d 1251, 1253 (8th Cir. 2013) (discussing Eighth Circuit precedent holding that "an ineffective assistance of counsel claim premised on a Batson error" is not "'structural error' entitled to a presumption of prejudice") (footnote omitted); Scott v. Hubert, 610 F.App'x 433, 433-34 (5th Cir. 2015) (holding that, although the Fifth Circuit recognizes a 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 "required to show that his counsel's failure to raise Batson objections during voir dire prejudiced his defense"). Second, the Supreme Court of Virginia cannot be deemed "unreasonable" in concluding that the trial record did not otherwise support a finding of Strickland ...

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