The Commonwealth . . .  has consistently argued “that the claim is defaulted because it could have been raised on state habeas corpus through the exercise of due diligence, but was not.” Ibid. Despite this concession, it is appropriate to begin the analysis of the “cause” issue by explaining why petitioner’s reasons for failing to raise his Brady claim at trial are acceptable under this Court’s cases.

    Three factors explain why trial counsel did not advance this claim: The documents were suppressed by the Commonwealth; the prosecutor maintained an open file policy;22 and trial counsel were not aware of the factual basis for the claim. The first and second factors–i.e., the non-disclosure and the open file policy–are both fairly characterized as conduct attributable to the State that impeded trial counsel’s access to the factual basis for making a Brady claim.23 As we explained in Murray v. Carrier, 477 U.S. 478, 488 (1986), it is just such factors that ordinarily establish the existence of cause for a procedural default.24

    If it was reasonable for trial counsel to rely on, not just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit representation that such materials would be included in the open files tendered to defense counsel for their examination, we think such reliance by counsel appointed to represent petitioner in state habeas proceedings was equally reasonable. Indeed, in Murray we expressly noted that “the standard for cause should not vary depending on the timing of a procedural default.” Id., at 491.

    The Commonwealth contends, however, that the prosecution’s maintenance of an open file policy that did not include all it was purported to contain is irrelevant because the factual basis for the assertion of a Brady claim was available to state habeas counsel. It presses two factors to support this assertion. First, it argues that an examination of Stoltzfus’ trial testimony,25 as well as a letter published in a local newspaper,26 made it clear that she had had several interviews with Detective Claytor. Second, the fact that the Federal District Court entered an order allowing discovery of the Harrisonburg police files indicates that diligent counsel could have obtained a similar order from the state court. We find neither factor persuasive.

    Although it is true that petitioner’s lawyers–both at trial and in post-trial proceedings–must have known that Stoltzfus had had multiple interviews with the police, it by no means follows that they would have known that records pertaining to those interviews, or that the notes that Stoltzfus sent to the detective, existed and had been suppressed.27 Indeed, if the Commonwealth is correct that Exhibits 2, 7, and 8 were in the prosecutor’s “open file,” it is especially unlikely that counsel would have suspected that additional impeaching evidence was being withheld. The prosecutor must have known about the newspaper articles and Stoltzfus’ meetings with Claytor, yet he did not believe that his prosecution file was incomplete.

    Furthermore, the fact that the District Court entered a broad discovery order even before federal habeas counsel had advanced a Brady claim does not demonstrate that a state court also would have done so.28 Indeed, as we understand Virginia law and the Commonwealth’s position, petitioner would not have been entitled to such discovery in state habeas proceedings without a showing of good cause.29 Even pursuant to the broader discovery provisions afforded at trial, petitioner would not have had access to these materials under Virginia law, except as modified by Brady.30 Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review. Nor, in our opinion, should such suspicion suffice to impose a duty on counsel to advance a claim for which they have no evidentiary support. Proper respect for state procedures counsels against a requirement that all possible claims be raised in state collateral proceedings, even when no known facts support them. The presumption, well established by “‘tradition and experience,’” that prosecutors have fully “‘discharged their official duties,’” United States v. Mezzanatto, 513 U.S. 196, 210 (1995), is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.

    The Commonwealth’s position on the “cause” issue is particularly weak in this case because the state habeas proceedings confirmed petitioner’s justification for his failure to raise a Brady claim. As already noted, when he alleged that trial counsel had been incompetent because they had not advanced such a claim, the warden responded by pointing out that there was no need for counsel to do so because they “were voluntarily given full disclosure of everything known to the government.”31 Given that representation, petitioner had no basis for believing the Commonwealth had failed to comply with Brady at trial.32

    The Commonwealth also argues that our decisions in Gray v. Netherland, 518 U.S. 152 (1996), and McCleskey v. Zant, 499 U.S. 467 (1991), preclude the conclusion that the cause for petitioner’s default was adequate. In both of those cases, however, the petitioner was previously aware of the factual basis for his claim but failed to raise it earlier. See Gray, 518 U.S., at 161; McCleskey, 499 U.S., at 498—499. In the context of a Brady claim, a defendant cannot conduct the “reasonable and diligent investigation” mandated by McCleskey to preclude a finding of procedural default when the evidence is in the hands of the State.33

    The controlling precedents on “cause” are Murray v. Carrier, 477 U.S., at 488 and Amadeo v. Zant, 486 U.S. 214 (1988). As we explained in the latter case:

“If the District Attorney’s memorandum was not reasonably discoverable because it was concealed by Putnam County officials, and if that concealment, rather than tactical considerations, was the reason for the failure of petitioner’s lawyers to raise the jury challenge in the trial court, then petitioner established ample cause to excuse his procedural default under this Court’s precedents.” Id., at 222.34

    There is no suggestion that tactical considerations played any role in petitioner’s failure to raise his Brady claim in state court. Moreover, under Brady an inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment. “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” Agurs, 427 U.S., at 110.

    In summary, petitioner has established cause for failing to raise a Brady claim prior to federal habeas because (a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence; and (c) the Commonwealth confirmed petitioner’s reliance on the open file policy by asserting during state habeas proceedings that petitioner had already received “everything known to the government.”35 We need not decide in this case whether any one or two of these factors would be sufficient to constitute cause, since the combination of all three surely suffices.

IV

    The differing judgments of the District Court and the Court of Appeals attest to the difficulty of resolving the issue of prejudice. Unlike the Fourth Circuit, we do not believe that “the Stolzfus [sic] materials would have provided little or no help to Strickler in either the guilt or sentencing phases of the trial.” App. 425. Without a doubt, Stoltzfus’ testimony was prejudicial in the sense that it made petitioner’s conviction more likely than if she had not testified, and discrediting her testimony might have changed the outcome of the trial.

    That, however, is not the standard that petitioner must satisfy in order to obtain relief. He must convince us that “there is a reasonable probability” that the result of the trial would have been different if the suppressed documents had been disclosed to the defense. As we stressed in Kyles: “[T]he adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” 514 U.S., at 434.

    The Court of Appeals’ negative answer to that question rested on its conclusion that, without considering Stoltzfus’ testimony, the record contained ample, independent evidence of guilt, as well as evidence sufficient to support the findings of vileness and future dangerousness that warranted the imposition of the death penalty. The standard used by that court was incorrect. As we made clear in Kyles, the materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions. Id., at 434—435. Rather, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id., at 435.

    The District Judge decided not to hold an evidentiary hearing to determine whether Exhibits 2, 7, and 8 had been disclosed to the defense, because he was satisfied that the “potentially devastating impeachment material” contained in the other five warranted the entry of summary judgment in petitioner’s favor. App. 392. The District Court’s conclusion that the admittedly undisclosed documents were sufficiently important to establish a violation of the Brady rule was supported by the prosecutor’s closing argument. That argument relied on Stoltzfus’ testimony to demonstrate petitioner’s violent propensities and to establish that he was the instigator and leader in Whitlock’s abduction and, by inference, her murder. The prosecutor emphasized the importance of Stoltzfus’ testimony in proving the abduction:

“[W]e are lucky enough to have an eyewitness who saw [what] happened out there in that parking lot. [In a] lot of cases you don’t. A lot of cases you can just theorize what happened in the actual abduction. But Mrs. Stoltzfus was there, she saw [what] happened.” App. 169.

    Given the record evidence involving Henderson,36 the District Court concluded that, without Stoltzfus’ testimony, the jury might have been persuaded that Henderson, rather than petitioner, was the ringleader. He reasoned that a “reasonable probability of conviction” of first-degree, rather than capital, murder sufficed to establish the materiality of the undisclosed Stoltzfus materials and, thus, a Brady violation. App. 396.

    The District Court was surely correct that there is a reasonable possibility that either a total, or just a substantial, discount of Stoltzfus’ testimony might have produced a different result, either at the guilt or sentencing phases. Petitioner did, for example, introduce substantial mitigating evidence about abuse he had suffered as a child at the hands of his stepfather.37 As the District Court recognized, however, petitioner’s burden is to establish a reasonable probability of a different result. Kyles, 514 U.S., at 434.

    Even if Stoltzfus and her testimony had been entirely discredited, the jury might still have concluded that petitioner was the leader of the criminal enterprise because he was the one seen driving the car by Kurt Massie near the location of the murder and the one who kept the car for the following week.38 In addition, Tudor testified that petitioner threatened Henderson with a knife later in the evening.

    More importantly, however, petitioner’s guilt of capital murder did not depend on proof that he was the dominant partner: Proof that he was an equal participant with Henderson was sufficient under the judge’s instructions.39 Accordingly, the strong evidence that Henderson was a killer is entirely consistent with the conclusion that petitioner was also an actual participant in the killing.40

    Furthermore, there was considerable forensic and other physical evidence linking petitioner to the crime.41 The weight and size of the rock,42 and the character of the fatal injuries to the victim,43 are powerful evidence supporting the conclusion that two people acted jointly to commit a brutal murder.

    We recognize the importance of eyewitness testimony; Stoltzfus provided the only disinterested, narrative account of what transpired on January 5, 1990. However, Stoltzfus’ vivid description of the events at the mall was not the only evidence that the jury had before it. Two other eyewitnesses, the security guard and Henderson’s friend, placed petitioner and Henderson at the Harrisonburg Valley Shopping Mall on the afternoon of Whitlock’s murder. One eyewitness later saw petitioner driving Dean’s car near the scene of the murder.

    The record provides strong support for the conclusion that petitioner would have been convicted of capital murder and sentenced to death, even if Stoltzfus had been severely impeached. The jury was instructed on two predicates for capital murder: robbery with a deadly weapon and abduction with intent to defile.44 On state habeas, the Virginia Supreme Court rejected as procedurally barred petitioner’s challenge to this jury instruction on the ground that “abduction with intent to defile” was not a predicate for capital murder for a victim over the age of 12.45 That issue is not before us. Even assuming, however, that this predicate was erroneous, armed robbery still would have supported the capital murder conviction.

    Petitioner argues that the prosecution’s evidence on armed robbery “flowed almost entirely from inferences from Stoltzfus’ testimony,” and especially from her statement that Henderson had a “hard object” under his coat at the mall. Brief for Petitioner 35. That argument, however, ignores the fact that petitioner’s mother and Tudor provided direct evidence that petitioner had a knife with him on the day of the crime. In addition, the prosecution contended in its closing argument that the rock–not the knife–was the murder weapon.46 The prosecution did advance the theory that petitioner had a knife when he got in the car with Whitlock, but it did not specifically argue that petitioner used the knife during the robbery.47

    Petitioner also maintains that he suffered prejudice from the failure to disclose the Stoltzfus documents because her testimony impacted on the jury’s decision to impose the death penalty. Her testimony, however, did not relate to his eligibility for the death sentence and was not relied upon by the prosecution at all during its closing argument at the penalty phase.48 With respect to the jury’s discretionary decision to impose the death penalty, it is true that Stoltzfus described petitioner as a violent, aggressive person, but that portrayal surely was not as damaging as either the evidence that he spent the evening of the murder dancing and drinking at Dice’s or the powerful message conveyed by the 69-pound rock that was part of the record before the jury. Notwithstanding the obvious significance of Stoltzfus’ testimony, petitioner has not convinced us that there is a reasonable probability that the jury would have returned a different verdict if her testimony had been either severely impeached or excluded entirely.

    Petitioner has satisfied two of the three components of a constitutional violation under Brady: exculpatory evidence and nondisclosure of this evidence by the prosecution. Petitioner has also demonstrated cause for failing to raise this claim during trial or on state postconviction review. However, petitioner has not shown that there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed. He therefore cannot show materiality under Brady or prejudice from his failure to raise the claim earlier. Accordingly, the judgment of the Court of Appeals is Affirmed
 

I. Ineffective Assistance of Counsel

Mr. Boyd alleges he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel at both stages of his trial. Some of his claims of ineffective assistance of counsel were raised on direct appeal and denied on their merits. Others were first raised in post-conviction proceedings, where the Oklahoma Court of Criminal Appeals examined their merits in the context of a claim of ineffective assistance of appellate counsel. The federal district court addressed their merits.

On direct appeal, Mr. Boyd argued that counsel was ineffective in the guilt/innocence phase by not adequately investigating and preparing for trial, by introducing evidence of Mr. Boyd's other crimes, by failing to attempt to suppress Mr. Boyd's statement to police implicating a hitchhiker, and by failing to request lesser included offense instructions. Mr. Boyd also claimed his counsel was ineffective in the penalty phase by failing to impeach witnesses and failing to present adequate mitigating evidence. The Oklahoma Court of Criminal Appeals rejected all these claims on the merits, finding (1) counsel's investigation and preparation for trial did not prejudice Mr. Boyd; (2) there was no prejudicial implication of Mr. Boyd's involvement in another crime; (3) the failure to seek suppression of Mr. Boyd's statement was not prejudicial; (4) the failure to seek lesser included offense instructions did not constitute ineffectiveness where the evidence did not warrant such instructions; (5) counsel's manner of impeaching witnesses was tactical; and (6) Mr. Boyd had not shown that his sentence would have been different even if counsel had presented certain mitigating evidence. See Boyd, 839 P.2d at 1373-75.

In post-conviction proceedings, Mr. Boyd argued appellate counsel was ineffective for failing to raise four meritorious claims, as well as for failing to raise ten specific instances of trial counsel ineffectiveness. Mr. Boyd also raised the issue of trial counsel's ineffectiveness directly. The four allegedly meritorious claims Mr. Boyd argued appellate counsel should have raised were "1) issues arising from two State witnesses' expert testimony; 2) issues regarding an instruction on unadjudicated offenses in the second stage of trial; 3) specific comments alleged to be prosecutorial misconduct, . . . and 4) the issue of accomplice instructions." Boyd, 915 P.2d at 925. The court rejected these arguments, concluding that "none of them meet both Strickland requirements." Id.

The ten claimed instances of ineffective trial counsel were: (1) failure to cross-examine and impeach firearms expert Sergeant Golightly adequately; (2) failure to adequately cross-examine medical examiner Dr. Choi; (3) failure to use photographs of the crime scene to establish material facts favorable to Mr. Boyd; (4) failure to adequately cross-examine and impeach Mr. Gericke; (5) failure to use available evidence to impeach Mr. Jackson's claims that he saw Mr. Boyd shoot Officer Riggs; (6) failure to adequately cross-examine Mr. Gibbs; (7) failure to investigate and produce readily available evidence favorable to Mr. Boyd; (8) failure to introduce Ms. Dunn's criminal and substance abuse history; (9) failure to use a crime scene diagram to rebut the State's theory that Mr. Boyd shot Officer Riggs; and (10) failure to offer evidence in the penalty phase regarding an informant's statement, evidence Mr. Boyd had not been convicted of a violent offense, and mitigating evidence. See id. at 926.

The Oklahoma Court of Criminal Appeals held that any new direct challenges to trial counsel's effectiveness were barred either by waiver or by res judicata. See id. at 924 & n.6. The court accordingly considered only whether appellate counsel was ineffective in failing to argue the ten claims. The court concluded that appellate counsel was not ineffective. See id. at 926-27. Mr. Boyd then filed the present petition in federal district court, which also rejected Mr. Boyd's ineffectiveness claims on their merits. . . .

B. Alleged Ineffectiveness in Guilt/Innocence Stage

Mr. Boyd has alleged numerous instances of trial counsel ineffectiveness in the guilt/innocence phase of the trial. He claims trial counsel was ineffective in (1) not adequately investigating and preparing for trial; (2) introducing evidence of other crimes; (3) failing to attempt to suppress Mr. Boyd's statement to police that a hitchhiker shot Officer Riggs; (4) failing to adequately cross-examine and/or impeach various witnesses, including Sergeant Golightly, Dr. Choi, Mr. Gericke, Mr. Jackson and Mr. Walker; (5) failing to develop and use other evidence he believes was favorable to him and/or would undermine the State's theory of the case; (6) failing to introduce Ms. Dunn's criminal and substance abuse history; and (7) failing to request lesser included offense instructions and accomplice instructions.

As we have stated, the Oklahoma Court of Criminal Appeals rejected most of these claims on their merits (at least indirectly, under the rubric of effective assistance of appellate counsel), finding that Mr. Boyd failed to establish ineffectiveness and/or prejudice under Strickland. After carefully reviewing the record in this case, we agree that Mr. Boyd has failed to establish deficient performance and prejudice, as required by Strickland. Under any view of the AEDPA standards, we conclude that the state court's determinations on ineffective assistance of counsel were neither contrary to, nor involved an unreasonable application of, clearly established federal law, nor were they "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d).

1. Trial Tactics and Strategy

We note that "counsel's duty to investigate all reasonable lines of defense is strictly observed in capital cases." Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998). However, those accused of crimes, even capital crimes, are entitled only to a reasonable and adequate defense, not the defense which, in hindsight, they believe would have been the best. Many of Mr. Boyd's claims of ineffectiveness involve challenges to trial strategy and tactics (how best to cross-examine and/or attempt to impeach witnesses, what evidence to introduce, what defense theory will be most plausible). Even assuming that Mr. Boyd established deficient performance, we conclude he has shown no prejudice under Strickland--no reasonable probability that, had counsel not committed the errors he now claims were committed, the outcome of the case would have been different. Bearing in mind that, in evaluating prejudice, we look at the "totality of the evidence," Cooks, 165 F.3d at 1293, we find no reasonable probability that the jury would have reached a different verdict.

The record in this case is "replete with evidence of [Mr. Boyd's] guilt," id., including eyewitness testimony by Mr. Jackson and Mr. Gericke, as well as Mr. Boyd's admission to Mr. Walker, all indicating that Mr. Boyd did the shooting. Further, the murder weapon was found along the path of Mr. Boyd's flight from the murder scene. While his counsel clearly could have more vigorously attempted to undermine the State's theory of the case, there was no reasonable probability of success, given the strength and amount of evidence presented by the State.

We therefore conclude that Mr. Boyd has failed to establish both deficient performance and prejudice with respect to his trial counsel's representation. We likewise conclude that appellate counsel was not constitutionally ineffective in failing to argue trial counsel's ineffectiveness.

2. Lesser Included Offense Instructions

Mr. Boyd also alleges ineffectiveness in counsel's failure to request instructions on the lesser included offenses of second degree murder or first degree manslaughter. The Oklahoma Court of Criminal Appeals held there was no ineffectiveness in the failure to seek lesser included offense instructions where the evidence did not warrant such instructions under Oklahoma law. Under 28 U.S.C. § 2254(e)(1), we must afford a presumption of correctness to any factual findings underlying the conclusion that the evidence was insufficient to justify lesser included offenses instructions. SeeHouchin, 107 F.3d at 1469-70; Williamson v. Ward, 110 F.3d 1508, 1513 & n.7 (10th Cir. 1997).

To the extent Mr. Boyd argues the state court erroneously interpreted and applied state law, that does not warrant habeas relief, seeEstelle v. McGuire, 502 U.S. 62, 67 (1991), absent a determination that the state law violation rendered the trial fundamentally unfair. SeeTyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999). We perceive no such fundamental unfairness.

To the extent he argues there was a violation of Beck v. Alabama, 447 U.S. 625 (1980), we reject his argument. In Beck, the Supreme Court held that a capital defendant was entitled to have the trial court instruct the jury on a lesser included, noncapital offense, if the evidence would support such an instruction. Such a requirement avoids presenting the jury with an all-or-nothing choice of either convicting the defendant of the capital crime, for which the only sentence is death, or setting the defendant free.

We have held that Beck does not require an instruction on a lesser included, noncapital offense, where the jury does not face an all-or-nothing choice, such as in Oklahoma where, despite a guilty verdict on a capital offense, the sentencer still has the option of imposing a sentence less than death at the sentencing proceeding. See United States v. McVeigh, 153 F.3d 1166, 1197 (10th Cir. 1998) (distinguishing Beck from situation where jury convicting defendant of capital crime could still reject death sentence during sentencing proceeding), cert. denied, 119 S. Ct. 1148 (1999) (citing Hopkins v. Reeves, 118 S. Ct. 1895, 1902 (1998) (distinguishing Beck from case where three-judge panel that determined sentence, after capital conviction, could sentence defendant to life imprisonment rather than death)). We have also, however, applied Beck even where there is a later opportunity to sentence to life imprisonment rather than death and inquired whether the instruction sought is in fact a lesser included offense of the capital crime and whether there is evidence to support the lesser included offense. Assuming, arguendo, Beck applies to this case, it provides Mr. Boyd no relief.

Mr. Boyd argues his counsel should have sought a lesser included offense instruction on second degree "depraved mind" murder and on first degree manslaughter. Oklahoma defines second degree "depraved mind" murder as a homicide "perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect death of any particular individual." Okla. Stat. Ann. tit. 21, § 701.8(1). Subsequent to Mr. Boyd's conviction, the Oklahoma Court of Criminal Appeals held that second degree "depraved mind" murder is not, under Oklahoma law, a lesser included offense of first degree malice murder. SeeWillingham v. State, 947 P.2d 1074, 1081-82 (Okla. Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998). At the time of his trial, however, courts treated second degree "depraved mind" murder as a lesser included offense of first degree malice murder. Seeid. at 1081 (noting that 1976 statutory revision resulted in second degree "depraved mind" murder no longer being lesser included offense of first degree malice murder, but that Oklahoma case law "[a]pparently . . . failed to recognize this change in the statutes").

Oklahoma defines first degree manslaughter, in relevant part, as a homicide "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon." Okla. Stat. Ann. tit. 21, § 711(2). It is a lesser included offense of first degree murder. SeeLewis v. State, 970 P.2d 1158, 1165-66 (Okla. Crim. App. 1999).

Mr. Boyd principally relies upon the testimony of Mr. Walker, who recounted Mr. Boyd's statement admitting shooting Officer Riggs but stating that he (Mr. Boyd) had "blacked out" during the shooting, to support his argument that there was evidence supporting lesser included instructions on both second degree "depraved mind" murder and first degree manslaughter. The state court found that the evidence did not support the giving of those instructions. That conclusion is not "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(2). Any subsidiary factual findings are presumptively correct. 28 U.S.C. § 2254(e)(1); see Case, 887 F.2d at 1392-93. We defer to any subsidiary interpretations of state law. See Davis, 100 F.3d at 771. Because the evidence did not support the giving of those lesser included instructions, counsel was not ineffective in failing to request them.

3. Accomplice Instructions

Finally, Mr. Boyd argues trial counsel was ineffective in failing to request an instruction that, under Oklahoma law, Mr. Jackson was an accomplice whose testimony required independent corroboration. The Oklahoma Court of Criminal Appeals rejected this argument in post-conviction proceedings, holding that, while Mr. Jackson had been originally charged with felony murder in this case, the charge had been dismissed for insufficient evidence, so "he could not have been charged as an accomplice at the time of the trial." Boyd, 915 P.2d at 926. A claimed violation of state law does not warrant habeas relief, unless it deprived Mr. Boyd of a fundamentally fair trial. See Maes v. Thomas, 46 F.3d 979, 983-85 (10th Cir. 1995). We perceive no such fundamental unfairness in this case.Appellate counsel was not ineffective in not arguing this issue either.

In sum, we conclude that neither trial counsel nor appellate counsel rendered constitutionally ineffective assistance in connection with the guilt/innocence phase of the trial, or any issues arising therefrom.

C. Alleged Ineffectiveness in Penalty Phase

Mr. Boyd argues his counsel was ineffective in the penalty phase of the trial because he (1) failed to impeach witnesses; (2) failed to present mitigating evidence; (3) failed to offer evidence regarding an informant's statement; and (4) failed to offer evidence that Mr. Boyd had not been convicted of a violent crime. He also argues appellate counsel was ineffective in failing to argue issues concerning an instruction about unadjudicated offenses which was given in the penalty phase. Arguments one and three relate to trial tactics. The Oklahoma court rejected these claims, finding that counsel's conduct involved strategic or tactical decisions made within the parameters of reasonable professional competence. We agree.

Mr. Boyd's counsel presented no mitigating evidence in the penalty phase. Mr. Boyd argues his counsel should have introduced affidavits of persons who knew him as a youth in Tennessee who would have testified regarding his good character had they been contacted by counsel. Mr. Boyd also argues his counsel should have introduced evidence that he had not been convicted of a violent crime.

Failure to present mitigating evidence is not per se ineffective assistance of counsel. See Brecheen v. Reynolds, 41 F.3d 1343, 1368 (10th Cir. 1994). However, it can constitute ineffectiveness if the failure was not due to a tactical decision. See Newsted, 158 F.3d at 1100. Even if we assume the failure to present mitigating evidence in the form of testimony from childhood acquaintances and family members is deficient performance, we perceive no prejudice from that failure in this case. In assessing prejudice in the penalty phase, we bear in mind the available mitigating evidence presented and the strength of the State's case and the aggravating factors the jury actually found. See id. Here, aside from the childhood testimonials, Mr. Boyd identifies little other available mitigating evidence, and the overall case against Mr. Boyd was strong. The prosecution presented substantial aggravating evidence, including the facts of the crime itself (Mr. Boyd's murder of a police officer to try to avoid prosecution for a robbery), as well as his unadjudicated robberies and plans to rob, and his threatened firearms assault on Oklahoma City Police Officer Schoenberger.
By contrast, the character evidence Mr. Boyd argues should have been presented was remote in time. There is no reasonable probability that the jury would have found it sufficiently persuasive to offset the substantial aggravating evidence presented. Similarly, we discern no prejudice in counsel's failure to introduce evidence that Mr. Boyd had no previous convictions for violent offenses. Although Mr. Boyd's counsel did not specifically present evidence to that effect, his examination of Detective Horn and Officer Schoenberger made it clear that Mr. Boyd had not in fact been charged with any violent offenses. The prosecution did present evidence of unadjudicated offenses, however, so the jury could easily infer that, had Mr. Boyd been convicted of a prior violent offense, the prosecution would have presented evidence to that effect. Thus, the jury got the substance of the evidence Mr. Boyd wished presented to it--i.e., that he had not been convicted of any violent offenses.

Mr. Boyd also argues his counsel was ineffective in failing to object to an instruction given in the penalty phase of the trial "which permitted the jury to consider the mere allegation that Mr. Boyd had committed unadjudicated offenses without giving the prosecution any burden of proof," Appellant's Br. at 37. He further argues appellate counsel was ineffective in failing to raise this issue on appeal. The Oklahoma Court of Criminal Appeals held that this instruction "did not misstate the law." Boyd, 915 P.2d at 925-26. We have held that the admission of evidence of unadjudicated crimes in a sentencing proceeding does not violate due process. SeeHatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir. 1995). We therefore perceive no prejudice from counsel's failure to object to the instruction, nor from appellate counsel's failure to argue this issue on appeal.

In sum, we conclude that neither trial nor appellate counsel rendered constitutionally ineffective assistance in connection with the penalty phase of the trial, or any issues arising therefrom.

Tener v. Gilmore Seventh Circuit denies relief on guilt phase jury instructions as to liability for murder, competency, failure to enforce a subpoena in the penalty phase, and an ineffective assistance of counsel claim found wanting due to overwhelming evidence of guilt and the heinous nature of the crime.
 

 2. More than three years after his trial, Tenner was examined by a psychiatrist in connection with the post-conviction proceedings in state court. Dr. Lyle Rossiter concluded that Tenner suffers from a "thought disorder" that "grossly impairs his ability to communicate in a manner that allows [his post-conviction] counsel to ascertain the basis, if any, for a complaint that he has been deprived of his constitutional rights [at trial]." This conclusion forms the basis for Tenner's contention that he was not competent to stand trial. If he could not communicate effectively with counsel in 1995, during the post-conviction proceedings, then he could not have communicated effectively during trial; and ability to assist in one's defense is undermined by inability to communicate. The constitutional question is whether the accused had "a reasonable degree of rational understanding [and] a rational as well as factual understanding of the proceedings against him." Godinez v. Moran, 509 U.S. 389, 396 (1993). See also Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966); Dusky v. United States, 362 U.S. 402 (1960); United States v. Grimes, No. 98-1828 (7th Cir. Apr. 19, 1999); Eddmonds v. Peters, 93 F.3d 1307 (7th Cir. 1996). Inability to communicate with counsel may affect this understanding.

 Rossiter also concluded that Tenner suffers from a paranoid delusional disorder, marked by the imputation of malevolent motives to others. Although Dr. Rossiter did not conclude that this rendered Tenner insane at the time of the crime (or trial), his current lawyers contend that paranoia would have compounded the difficulty in communicating with or assisting his trial counsel. Trial testimony by both Albert Sauls and Shirley Garza describes Tenner as ranting, sometimes incoherently, during the hours while the victims were bound prior to the shootings. Interview notes show that Tenner told his trial lawyer that he heard voices during 1981 (six years before the crimes) and "while in custody." All of this calls into question Tenner's ability to understand the proceedings and assist in his defense at trial, according to his current lawyers. But the district judge declined to hold a factual hearing on this subject, ruling that the facts available to the state trial judge would not have created a substantial doubt about Tenner's competence.

 This way of phrasing the question is important. The record certainly contains evidence that Tenner has mental problems. But people who suffer from paranoia display "different levels of skill and understanding at different times. . . . Persons afflicted by paranoia often are intelligent and skillful." Gosier, slip op. 8. What was Tenner's level of understanding and cooperation near the time of his trial? More to the point, what should the trial judge have understood about this issue? Tenner's current lawyers want us to look principally at Dr. Rossiter's evaluation, but this was not available to the trial judge. "Only when the facts at the time of trial create a bona fide doubt about an accused's fitness is a hearing required." Gosier, slip op. 5 (emphasis in original). Hindsight does not entitle a federal court to upset the result of a state proceeding that was conducted in a fundamentally fair manner.

 To justify an evidentiary hearing at trial to explore the possibility of incompetence to stand trial, a defendant must produce "clear and convincing evidence [raising] threshold doubt about his competency." Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997), quoting from Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir. 1980); see also Grimes, slip op. 2-3; Walker v. Attorney General of Oklahoma, 167 F.3d 1339, 1342-47 (10th Cir. 1999). Cf. Cooper v. Oklahoma, 517 U.S. 348 (1996) (preponderance standard governs the decision once competence has been drawn into question). The Supreme Court of Illinois concluded that Tenner had not demonstrated the threshold doubt about competence. It observed:

 Nothing in the defendant's record or personal history disclosed any history of mental illness or emotional disturbance; there was nothing to prompt a separate inquiry into the defendant's mental condition. In rejecting this portion of the defendant's post-conviction petition, the judge below, who had also presided at trial, explained:

 "There was nothing to suggest a psychiatric exam in this young Defendant's background. If there had been anything that would have suggested [a] psychiatric exam, I probably would have ordered it sua sponte. I've been known to do that to satisfy myself as to the mental competency of a defendant in front of the bench. There's none of that in this record."

 677 N.E.2d at 864. Although the state court wrote this when assessing Tenner's argument that failing to obtain an earlier psychiatric assessment was ineffective assistance of counsel, it is equally apropos to the competence issue. And under sec.2254(d) this finding--that nothing suggested to the trial judge that Tenner had any mental problem (beyond the kind of problem implied by the nature of the offense)--blocks collateral review unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." We do not think that the state court's assessment is either an unreasonable understanding of the facts or an unreasonable application of the law.

 This is the sort of issue on which the legal change made by the AEDPA matters. The parties do not debate the legal standards; they were established in cases such as Drope and Pate. It involves, rather, the application of law to the facts of a particular case. "[W]hen the dispute lies not in the meaning of the Constitution, but in its application to a particular set of facts-- when it is, in the standard phrase, a 'mixed question of law and fact'--sec.2254(d)(1) restricts the grant of collateral relief to cases in which the state's decision reflects 'an unreasonable application of' the law. . . . [W]hen the constitutional question is a matter of degree, rather than of concrete entitlements, a 'reasonable' decision by the state court must be honored." Lindh v. Murphy, 96 F.3d 856, 870-71 (7th Cir. 1996) (en banc), reversed on other grounds, 521 U.S. 320 (1997). (Our decision on remand in Lindh shows how the AEDPA mattered. Applying the de novo review under pre-AEDPA law, we disagreed with the state courts' application of law to the facts of that case and issued the writ. Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997).)

 Did the Supreme Court of Illinois act unreasonably in concluding that the trial judge lacked a good reason to doubt Tenner's mental soundness? We think that its assessment was eminently reasonable. Even now, Tenner's able counsel do not point to any circumstance beyond the facts of the crime itself that should have alerted the judge to any problem. The judge had ample opportunity to evaluate Tenner, not only in pretrial proceedings but also during his testimony. Tenner responded intelligently to questions posed by his lawyer (and those during cross-examination by the prosecutor). His testimony was lucid and suggested an understanding of the legal process and the nature of the charges against him. See Grimes, slip op. 2-3. Tenner now relies principally on a psychiatric evaluation that came long after trial--and even this evaluation is of little use, for Dr. Rossiter did not offer an opinion about Tenner's ability to understand the proceedings or assist his lawyer at the time of trial. Rossiter concluded that Tenner had little understanding of, or ability to assist his post-trial counsel with, constitutional issues. That's true of most entirely competent defendants; indeed, many graduates of law school have trouble with constitutional questions from time to time. Rossiter did not suggest that Tenner was unable to understand the charges laid against him or to assist in a defense against them. That is the critical issue; so even with the benefit of hindsight it is not possible to condemn the state court's approach as "unreasonable."

Faulder v. Texas Board of Pardons and Parole Fifth Circuit holds no constitutional error in the denial of parole to this Canadian citizen.

 
On appeal, Faulder argues that the Board's procedures do not meet "minimal due process" standards principally because the Board allegedly violated applicable state law and its own regulations, and Faulder received inadequate notice of issues the Board would consider. In addition, Faulder alleges conclusionally in his brief that the Board acts in secrecy, refuses to hold hearings, gives no reasons for its decisions, and keeps no records of its actions. He describes the Board's action as "an arbitrary exercise of administrative power."

These contentions are meritless. In Ohio Adult Parole Authority v. Woodard, ____ U.S. ___, 118 S. Ct. 1244, 1253 (1998), Justice O'Connor's concurring opinion stated only that minimal procedural safeguards apply to clemency proceedings. Id. at 1254. The low threshold of judicial reviewability is based on the facts that pardon and commutation decisions are not traditionally the business of courts and that they are subject to the ultimate discretion of the executive power. Id. This is highlighted by Justice O'Connor's narrow view of when judicial intervention into clemency decisions might be warranted: where a state official "flipped a coin" to determine whether to grant clemency, or the state arbitrarily denied a prisoner any access to its clemency process. Id.

Faulder's clemency procedures exhibited neither of these extreme situations. The federal district court conscientiously explained the Board's procedures and the liberal, non-evidentiary rules permitting Faulder to submit any information he thought appropriate to the Board's decision. Board members testified at length about their decision-making processes. The Board members reviewed the information they believed material to Faulder's request, and each one independently determined whether clemency ought to be recommended. The Board staff furnished members with Faulder's or his family's submissions and with such other information as was relevant or useful. We need not go further in advising the Board what procedures it might choose to adopt in the future, because what they did in this case complied with the constitutional minimum set forth in Woodard.

Further, this court has previously rejected arguments against the constitutionality of Texas's clemency procedures for essentially the same reasons stated by the district court in this case. Moody v. Rodriguez, 164 F.3d at 894. The state notes that Moody is based on a slightly different voting form prepared for the Board in capital cases after Faulder's petition was decided. The information now contained on the form adds nothing relevant to the information developed by the district court about the Board's actions in this case.

Taken either individually or cumulatively under the facts of this case, none of the objections that Faulder raises to the Board's procedures represents an essential component of due process. Procedural due process is an inherently flexible concept. And Woodard emphasizes that extra flexibility is required when, as here, the criminal process has reached an end and a highly individualized and merciful decision like executive clemency is at issue. Faulder had ample opportunity to present his best case to the Board, and the Board gave it appropriate consideration.

Gilliam v. Mitchell Sixth Circuit holds  that the confrontation clause is not violated by the introduction of a co-defendant's confession, and that in any case any admission into the record was harmless. (Note: Due to Lilly v.  Virginia decided by the Supreme Court the day after this opinion,  Gilliam's continuing validity is at best dubious).

Tucker v. Prelesnik Sixth Circuit hold s failure to request a continuance and obtain medical records that would have served as impeachment constituted ineffective assistance of counsel under the standards of the AEDPA.

Santoro v. USA First Circuit holds that Bailey v. USA was not sufficiently new to compromise cause for procedural default.

Brown v. Andrews Second Circuit grants the Great Writ holding that the state did not have sufficient cause to close Petitioner's trial to the public.

Johnson v. Puckett Fifth Circuit denies relief on claims relating to alleged failures  to disclose exculpatory material and suborned  perjury in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

Houston v. Roe Ninth Circuit denies relief in this noncapital California murder case on claims relating to the (1) "individual sentencing doctrine;" (2) overbreadth,  burden proof, jury instructions and vagueness of California's lay in wait  for first degree murder; (3) jury instruction on flight; (4) prior bad acts; and (5)  ineffective assistance of counsel  for failing to object to the above.
 
 

Burnsworth  v. Gunderson Ninth Circuit upholds expungement of a prison disciplinary escape charge  where the district court found "no evidence" supported the prison's finding of guilt and hence the charge violated procedural due process.

983290P.pdf Doe v. LaFleur Eighth Circuit denies challenge to Minnesota Community Notification Act as moot.

Congratulations to the Virginia Capital Collateral Resource Center. VCCRC  obtained a last-minute stay of  Douglas Christopher Thomas's execution. Wednesday  night  the Virginia Supreme Court granted a stay based upon its decision on Monday that  a circuit court lacks jurisdiction to try a juvenile unless both parents are notified.  This appears  to be the first stay ever granted by the Va. Sup. Ct. other than its pro forma stays to allow direct appeals to proceed. Strong evidence  that someone other then Douglas was responsible for one of the two murders for which he was convicted for has surfaced.    The Virginia Supreme Court will hear the case this fall.
 
 
 

A discussion list for legal professionals doing capital litigation is in the beginning stages.  The hope of the new list is to get some cross-pollination of ideas, as well as to give  those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.
Post message: capitaldefense@onelist.com
Subscribe:   capitaldefense-subscribe@onelist.com
Unsubscribe:   capitaldefense-unsubscribe@onelist.com
List owner:   capitaldefense-owner@onelist.com

Archive search

DISCLAIMER & CREDITS --   Anti-copyrite 1997-2000.   ISSN: 1523-6684. Written  with  the legal professional in mind.  Use does not constitute creation of an attorney-client relationship.  If you have a legal question contact a lawyer authorized to practice in your state. This weekly  has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read.   Complete disclaimer located at  http://capitaldefenseweekly.com/disclaimer.html. This letter may be freely redistributed with attribution.  CDW is in no way affiliated with, endorsed by, or supported by the AOC or capdefnet.org.

Please note that the current set up of the weekly is a one way list.  Subscription information, including all names and addresses are private and unavailable to third parties. As always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.Please note all rights to terminate a subscription are retained by the editorial staff.

Publisher information: All  comments, inquiries or complaints  may be sent to: Capital Defense Weekly/Karl R. Keys/167 Milk Street/Suite 127/Boston, MA 02109/capdefense@capitaldefenseweekly.com/617.249.0219

ISSN: 1523-6684   Volume II, issue 18