Brandon Wayne Hedrick v.  WILLIAM PAGE TRUE, Warden, Sussex I State Prison

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 BRANDON WAYNE HEDRICK,
Petitioner-Appellant,
v. No. 04-32 
WILLIAM PAGE TRUE, Warden,
Sussex I State Prison,
Respondent-Appellee. 
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CA-03-219-7)
Argued: November 30, 2005
Decided: March 31, 2006
Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Gregory wrote the opinion for
the court in Parts I, II, and III, in which Judge Widener and Senior
Judge Hamilton joined. Senior Judge Hamilton wrote the opinion for
the court in Parts IV and V, in which Judge Widener joined. Judge
Gregory wrote a separate opinion dissenting in part from Part IV and
concurring in the judgment only in Part V.
COUNSEL
ARGUED: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Charlottesville, Virginia, for

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Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: James O. Broccoletti, ZOBY & BROCCOLETTI, Norfolk,
Virginia, for Appellant. Judith Williams Jagdmann, Attorney General
of Virginia, Jerry P. Slonaker, Senior Assistant Attorney General,
Robert Q. Harris, Senior Assistant Attorney General, Richmond, Vir-
ginia, for Appellee.
OPINION
GREGORY, Circuit Judge, writing for the court in Parts I through III:
Brandon Wayne Hedrick was convicted by a Virginia jury of capi-
tal murder in the commission of robbery, rape, and forcible sodomy
and sentenced to death. After an unsuccessful direct appeal and
habeas petition in the Supreme Court of Virginia, Hedrick sought fed-
eral habeas corpus relief from the United States District Court for the
Western District of Virginia. The district court dismissed all of Hedr-
ick’s claims. We granted certificates of appealability on Hedrick’s
claims that: (1) he received ineffective assistance of counsel in viola-
tion of his Sixth Amendment rights; (2) the government failed to dis-
close information favorable to Hedrick in violation of Brady v.
Maryland, 373 U.S. 83 (1963); and (3) his execution is unconstitu-
tional under Atkins v. Virginia, 536 U.S. 304 (2002). We affirm the
dismissal of these claims.
I.
The Supreme Court of Virginia opinion affirming Hedrick’s con-
victions contains a detailed narrative of the facts shown by the evi-
dence presented at trial. See Hedrick v. Commonwealth, 513 S.E.2d
634, 636-38 (Va. 1999) [hereinafter Hedrick I]. We briefly recount
the relevant facts here.
On May 10, 1997, Hedrick and Trevor Jones spent the evening
consuming alcohol, smoking crack cocaine and marijuana, and
employing the services of four prostitutes. After driving the last two
prostitutes back to downtown Lynchburg, Virginia, Hedrick and Jones
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saw Lisa Yvonne Crider. Jones knew that Crider’s boyfriend was a
crack cocaine dealer, and the two decided to pick Crider up, have sex-
ual relations with her, and rob her of any crack cocaine in her posses-
sion. Crider voluntarily traveled with Hedrick and Jones back to
Jones’s apartment, where Jones paid Crider $50 to have sexual inter-
course with him. Afterwards, Hedrick retrieved a shotgun from
Jones’s car at Jones’s direction and robbed Crider of the $50 at gun-
point. Hedrick and Jones handcuffed Crider, duct-taped her eyes and
mouth, and led her out to Jones’s truck. The three left the apartment
around 1:00 a.m. Hedrick I, 513 S.E.2d at 636-37.
After driving for some time, Jones stopped the truck because Hedr-
ick wanted to have sexual intercourse with Crider. Hedrick raped
Crider after telling her not to "try anything" because he had a gun. Id.
at 637. Afterwards, the two men decided to kill Crider, fearing retalia-
tion from Crider’s boyfriend for the rape. As they drove in search of
a suitable location, Crider, pleading for her life, asked if there was
anything she could do to keep them from killing her. Hedrick told
Crider, "if you suck my dick, I’ll think about it," at which point Crider
performed oral sodomy on Hedrick. Id.
They continued driving until daybreak, when Jones stopped the
truck near the James River. Jones led Crider to the riverbank, told
Hedrick to "do what you got to do," and walked back to the truck. Id.
Hedrick shot Crider and left with Jones. The two men fled Virginia
in Jones’s truck the next day. That evening, Crider’s body was dis-
covered at the James River with a shotgun wound to the face. About
one week later, the authorities arrested Hedrick and Jones in Lincoln,
Nebraska. Id. at 637-38.
At Hedrick’s trial, the Commonwealth presented DNA and forensic
evidence in addition to eyewitness testimony from Jones and others.
Hedrick testified on his own behalf, discussing his extensive drug and
alcohol use the day of the crime and in the months leading up to it,
denying sexual contact with Crider after her abduction, and claiming
that the shooting was accidental. Trial Tr. 464-79.1 The jury convicted
1The complete transcript of Hedrick’s trial was not included in the
Joint Appendix. References to "Trial Tr." refer to the continuously pagi-
nated, five-volume transcript of these proceedings, which occurred May
18-22, 1998.
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Hedrick of capital murder in the commission of robbery, rape, and
forcible sodomy; robbery; rape; forcible sodomy; abduction; and use
of a firearm in the commission of murder. Hedrick I, 513 S.E.2d at
635.
At the sentencing phase of the trial, prosecutors called a number of
witnesses to testify regarding Hedrick’s behavior in jail, including his
escape attempts and destruction of property. They presented evidence
of Hedrick’s past robberies involving knives and a shotgun and elic-
ited testimony that Hedrick had used racial slurs to describe Crider
and others after his arrest. See, e.g., Trial Tr. 693-96, 700. In mitiga-
tion, Hedrick’s counsel called fifteen witnesses, including clergy,
family members, friends, a former cell-mate, and a clinical psycholo-
gist. They spoke of Hedrick’s remorse and lack of racial prejudice,
and they asked that his life be spared. Witnesses stressed that he was
respectful and helpful as a child, but had recently gone astray after
falling in with a bad crowd and turning to drugs. Family members tes-
tified that Hedrick grew up in a normal, two-parent family where he
learned right from wrong and was not abused in any way. See, e.g.,
Trial Tr. 708-10, 713-14, 732 ("He had wonderful parents."). Hedr-
ick’s mother testified to the difficulty her son had comprehending his
reading and writing assignments from school, which caused him to
fall behind his peers and drop out in ninth grade. Trial Tr. 758. She
also discussed his problems with alcohol and drug use.
Dr. Gary Hawk, Hedrick’s court-appointed clinical psychologist,
testified at sentencing that Hedrick was significantly immature for his
age and that he had a problem with drugs and alcohol that accelerated
in the months leading up to the crimes. He noted Hedrick’s low IQ
score of 76, which was "far below average," although "not so low as
to suggest mental retardation." J.A. 245. Dr. Hawk testified that Hedr-
ick’s lack of intelligence, immaturity, and intense drug abuse dimin-
ished his ability to reflect and deliberate at the time of the murder.
Trial Tr. 791-92.
Finding both that Hedrick posed a "continuing serious threat to
society" and that his conduct in committing the offenses was "outra-
geously or wantonly vile, horrible or inhuman in that it involved tor-
ture, depravity of mind, aggravated battery to the victim beyond the
minimum necessary to accomplish the act of murder," the jury recom-
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mended a sentence of death for the capital murder offenses. Id. at 894
(applying Va. Code Ann. § 19.2-264.2). Under Virginia law, a finding
of either of these aggravating factors alone is sufficient to support a
death sentence. Swisher v. True, 325 F.3d 225, 232 n.8 (4th Cir. 2003)
(citing Va. Code Ann. § 19.2-264.2 and Buchanan v. Angelone, 522
U.S. 269, 276 (1998)). The Circuit Court sentenced Hedrick to death
according to the jury’s recommendation.
On direct appeal, the Supreme Court of Virginia affirmed Hedr-
ick’s conviction on February 26, 1999. Hedrick I, 513 S.E.2d at 642.
Hedrick then filed a petition for a writ of habeas corpus in the
Supreme Court of Virginia, claiming, relevant here, that he had
received ineffective assistance of counsel and that certain information
was withheld from him in violation of Brady. J.A. 2038-88. The court
referred Hedrick’s ineffective assistance claim to the Circuit Court of
Appomattox County for an evidentiary hearing. After taking evi-
dence, the Circuit Court submitted its Findings of Fact and Conclu-
sions of Law to the Supreme Court of Virginia on August 16, 2001,
concluding that Hedrick’s ineffective assistance of counsel claims
lacked merit. Id. at 2197-2233. Hedrick submitted objections to this
report, and the Supreme Court of Virginia ordered briefing on Hedr-
ick’s petition. Hedrick briefed only the issues relating to ineffective
assistance of counsel.
In June 2002, while Hedrick’s state habeas petition was still pend-
ing, the United States Supreme Court decided Atkins v. Virginia, 536
U.S. 304 (2002). In Atkins, the Court established that the Eighth
Amendment bars the execution of those who are mentally retarded.
The Supreme Court of Virginia held oral argument on Hedrick’s peti-
tion in September 2002. It dismissed his petition on November 1,
2002, adjudicating Hedrick’s ineffective assistance of counsel claims
on the merits, but finding his Brady claim defaulted for his failure to
address it in his brief. Hedrick v. Warden, 570 S.E.2d 840 (Va. 2002)
[hereinafter Hedrick II]. Hedrick petitioned for rehearing on Decem-
ber 2, 2002, raising an Atkins claim for the first time. Pet. for Reh’g
10, Dec. 2, 2002. The Supreme Court of Virginia denied rehearing on
January 10, 2003 without explanation. In April 2003, the Virginia
General Assembly added sections 19.2-264.3:1.1 and 19.2-264.3:1.2
to the Virginia Code in response to Atkins, which established Virgin-
ia’s framework for deciding claims of mental retardation. It also
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passed section 8.01-654.2, setting forth the procedures for Atkins
claims by individuals sentenced to death prior to April 29, 2003.
Hedrick next sought federal habeas relief in the District Court for
the Western District of Virginia, which dismissed his petition on
March 23, 2004. J.A. 2847-98. The district court found that the
Supreme Court of Virginia had not unreasonably applied Strickland
in denying Hedrick’s ineffective assistance of counsel claims. Id. at
2865. In addition, it found that Hedrick could not overcome the ade-
quate and independent state procedural rule that the Supreme Court
of Virginia used to deem his Brady claim procedurally defaulted.
Because Atkins was decided shortly before the Supreme Court of Vir-
ginia issued its decision on Hedrick’s habeas petition, the district
court found that Hedrick’s failure to seek leave to amend his petition
to add the Atkins claim rendered that claim procedurally barred as
well. Moreover, the court believed that Hedrick had failed to present
a colorable claim of mental retardation. The district court dismissed
Hedrick’s remaining claims for habeas relief. We granted certificates
of appealability on Hedrick’s ineffective assistance of counsel, Brady,
and Atkins claims.
II.
The Supreme Court of Virginia rejected Hedrick’s ineffective
assistance of counsel claims on the merits. Under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), we must presume
that the factual determinations made by the state court are correct
unless the petitioner can rebut this presumption by clear and convinc-
ing evidence. 28 U.S.C. 2254(e)(1). We cannot grant a writ of habeas
corpus unless the state court’s decision "was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." Id. 2254(d).
See also Williams v. Taylor, 529 U.S. 362, 405-13 (2000) (explaining
AEDPA review). Because the Supreme Court of Virginia correctly
identified the Strickland standard as the governing legal principle, our
task is to determine whether its application of Strickland was objec-
tively unreasonable, see Wiggins v. Smith, 539 U.S. 510, 520 (2003),
reviewing the district court’s conclusions in this regard de novo, Hill
v. Ozmint, 339 F.3d 187, 193 (4th Cir. 2003).
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To prevail on an ineffective assistance of counsel claim, the defen-
dant must make two showings: (1) that counsel’s performance was
deficient; and (2) that this deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. Under the first prong, deficient
performance is established where "counsel’s representation fell below
an objective standard of reasonableness," as measured by prevailing
professional norms. Id. at 688. Scrutiny of the attorneys’ performance
must be highly deferential to counsel’s judgments. Id. at 691. Under
the second prong, prejudice exists where "there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id. at
694. When a defendant asserts prejudice with respect to his sentence,
we "reweigh the evidence in aggravation against the totality of avail-
able mitigating evidence." Wiggins, 539 U.S. at 534.
Two attorneys, Penny Baber and Lee Harrison, represented Hedr-
ick at trial. Hedrick raises numerous arguments that Baber and Harri-
son were ineffective and that he was prejudiced by their actions and
inactions. These arguments fall into three basic categories: (1) investi-
gation and preparation for the sentencing phase of Hedrick’s trial (dis-
cussed in Part II.A, infra); (2) investigation for and performance at
trial (discussed in Part II.B, infra); and (3) pre-trial performance (dis-
cussed in Part II.C, infra). We address each argument in turn.
A.
The first category of Hedrick’s ineffective assistance of counsel
challenges relates to his attorneys’ investigation and preparation for
the sentencing phase of his trial. Hedrick argues that Baber and Harri-
son failed to: (1) adequately investigate the potential mitigating effect
of Hedrick’s childhood; (2) develop evidence of Hedrick’s low intelli-
gence; (3) develop evidence of Hedrick’s substance abuse problems;
and (4) prepare the lay character witnesses to testify.
1.
Hedrick’s primary argument is that trial counsel failed to ade-
quately investigate the possible mitigating effect of his childhood.
The Supreme Court of Virginia determined that Hedrick could show
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neither deficient performance nor prejudice. Hedrick II, 570 S.E.2d at
849. We do not believe this determination was objectively unreason-
able.
The Supreme Court of Virginia found that counsel collected infor-
mation about Hedrick’s background from his parents, grandparents,
former employers, and school personnel, and tried to obtain his school
records. Id. These factual findings are supported by testimony elicited
at the state habeas evidentiary hearing, see, e.g., J.A. 937-38, 1014-
15, 1017-19, 1037-38, and clear and convincing evidence does not
exist to rebut the presumption that they are correct. However, Hedrick
argues that the extent of this investigation was too narrow and that
what information counsel did know should have led them to probe
further.
"[I]nvestigations into mitigating evidence ‘should comprise efforts
to discover all reasonably available mitigating evidence and evidence
to rebut any aggravating evidence that may be introduced by the pros-
ecutor.’" Wiggins, 539 U.S. at 524 (quoting ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases
11.4.1(C), at 93 (1989) [hereinafter ABA Guidelines]) (emphasis
omitted). Strickland announced that "counsel has a duty to make rea-
sonable investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland, 466 U.S. at 691. In
Wiggins, the Court recently elaborated on an attorney’s duty to inves-
tigate. 539 U.S. at 523. The Court explained that the relevant inquiry
is "whether the investigation supporting counsel’s decision not to
introduce mitigating evidence of [the defendant’s] background was
itself reasonable." Id. Moreover, "[i]n assessing the reasonableness of
an attorney’s investigation, . . . a court must consider not only the
quantum of evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to investigate fur-
ther." Id. at 527.
Through the investigation counsel did conduct, Baber learned that
Hedrick’s father had problems with alcohol in the past, that Hedrick’s
parents allowed him to drink at home to keep him from doing so on
the street, and that Hedrick’s parents had used marijuana. J.A. 937-39.
In speaking with Hedrick’s family, Baber testified that he got the
impression that these aspects of Hedrick’s upbringing were not signif-
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icant, and that Hedrick’s father had resolved his problems with alco-
hol as he had held a steady job for years. Id. at 939, 1019.
Hedrick’s trial counsel also retained Dr. Hawk, a psychological
expert, to help identify and present mitigating evidence.2 Hedrick II,
570 S.E.2d at 852. Dr. Hawk’s report to Hedrick’s counsel included
information about Hedrick’s father’s previous problems with sub-
stance and alcohol abuse, his father’s long absences from home due
to his job as a long-distance truck driver, and his parents’ open drug
use and preference that Hedrick use drugs and alcohol at home rather
than on the street. J.A. 555-56. However, Dr. Hawk did not suggest
to counsel in that report that he believed Hedrick’s childhood experi-
ences would be of value to the mitigation case at sentencing or that
they merited further exploration. See id. at 554-60. Instead, Dr. Hawk
identified Hedrick’s intellectual limitations, his immaturity, his intox-
ication and alcohol and drug dependence at the time of the offenses,
and his consistent acknowledgment of his role as the mitigating fac-
tors worthy of attention. Id. at 559.
2In a related argument, Hedrick asserts deficient performance in coun-
sel’s interactions with Dr. Hawk. Dr. Hawk provided an affidavit critiqu-
ing Harrison and Baber’s performance, which was presented during the
state habeas evidentiary hearing. See J.A. 482-95. In the affidavit, he
stated that counsel failed to communicate effectively with him and pro-
vided him with insufficient information.
However, relying on testimony from attorneys at the evidentiary hear-
ing, the Supreme Court of Virginia found as a factual matter that this was
not the case. Instead, the court found that counsel requested Dr. Hawk
specifically because Harrison was familiar with him from a previous case
and Harrison knew that Dr. Hawk would contact them if he needed addi-
tional information. Hedrick II, 570 S.E.2d at 852. See also J.A. 761. The
court credited testimony that counsel communicated with Dr. Hawk in
preparation for and during trial and provided Dr. Hawk with all the infor-
mation they had obtained. Hedrick II, 570 S.E.2d at 852. Dr. Hawk did
not testify in the evidentiary hearing because he was gravely ill at the
time and has since passed away. In these circumstances, clear and con-
vincing evidence does not exist to rebut the presumption that the Virginia
Supreme Court’s factual finding was correct. Thus, Hedrick’s claims of
ineffective assistance based on counsel’s interaction with Dr. Hawk are
without merit.
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Hedrick’s own statements confirmed that an investigation into his
childhood would be fruitless. Baber testified:
I talked to [Hedrick] about the possibility of . . . a mitigation
expert and what a mitigation expert might develop. And one
of the things was childhood problems and childhood circum-
stances. And he told me that he didn’t want evidence put on
that he was—came from a bad home or that he had a bad
situation at home. . . . I took that to mean he didn’t feel like
he did.
Id. at 1043.3 See also id. at 555 (Dr. Hawk indicating in his report that
Hedrick described his childhood in positive terms, reported fond
memories of outdoor activities with his father, and felt close to his
mother).
Although counsel knew facts that suggested a less than idyllic
upbringing, we cannot say that the Supreme Court of Virginia’s deter-
mination that counsel’s performance was not deficient was objec-
tively unreasonable. Neither Hedrick nor his family indicated that
growing up had been a negative experience. Even Hedrick’s psycho-
logical expert failed to indicate that what was known would be signif-
icant to Hedrick’s mitigation case. Wiggins, the very case Hedrick
cites to make his claim, distinguished situations where the known
facts suggested further investigations would be unproductive. 539
U.S. at 525. This is especially true where the defendant’s own state-
ments discourage further investigation. As the Supreme Court has
noted, "when a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or even harmful,
counsel’s failure to pursue those investigations may not later be chal-
lenged as unreasonable." Strickland, 466 U.S. at 691.
3The Supreme Court of Virginia found that this statement was a direc-
tive not to pursue an investigation into his childhood, and declined to
fault counsel for following it. Hedrick II, 570 S.E.2d at 852. Hedrick pro-
tests that a plain reading of Baber’s testimony shows that this interpreta-
tion is erroneous and that the statement only indicated that Hedrick did
not feel like he had a bad childhood. Reply Br. of Appellant 5-7. We will
assume, arguendo, that Hedrick’s reading is correct because the meaning
of this statement is not determinative to our conclusion.
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Moreover, even if Hedrick could show an unreasonable application
of the law with respect to the performance prong of Strickland, he has
failed to show prejudice under the second prong. In arguing that he
has shown a reasonable probability that his sentence would have been
different, Hedrick asserts that further investigation would have uncov-
ered evidence of a dysfunctional and chaotic childhood. He points to
several types of evidence to this effect. At the state habeas evidentiary
hearing, Hedrick’s aunt and uncle testified about a family history of
alcohol abuse, that Hedrick’s parents fought bitterly, and that they
refused to allow their own children to stay with Hedrick’s family. J.A.
1140, 1145, 1161, 1170. They noted that Hedrick’s brother struggled
with attention deficit disorder, causing additional turmoil in the
household. Id. at 1168.
Hedrick also points to his father’s treatment records for drug and
alcohol dependence; his mother’s criminal record (welfare fraud); and
his brother’s juvenile file,4 which all went undiscovered by counsel.
Br. of Appellant 25-26. The juvenile file indicated that Hedrick’s
brother was the product of an alcoholic home that included fragmen-
tation and dysfunction, and that he received incompetent parenting.
J.A. 1671.
In addition, Dr. Kent McDaniel, an expert in psychiatry and neuro-
science, testified at the state habeas evidentiary hearing that Hedrick’s
chaotic family environment—specifically, his parents’ substance
abuse, his father’s work-related absences, his parents’ psychological
limits, his brother’s behavioral problems, and recurrent violence in
the home—would have been significant to Hedrick’s behavior at the
time of the offense. Id. at 1223, 1240-41.
This evidence, however, does not add up to a reasonable probabil-
ity that Hedrick’s sentence would have been different. In reweighing
the evidence in aggravation against this new mitigating evidence, we
4We note that it is not clear that this confidential juvenile file was "rea-
sonably available" to counsel. Wiggins, 539 U.S. at 524 (quoting ABA
Guidelines 11.4.1(C), at 93)). Hedrick’s family had instructed counsel to
leave Hedrick’s brother, a minor at the time of Hedrick’s trial, out of the
case. Hedrick’s present counsel only obtained access to the juvenile file
when Hedrick’s brother turned 18 and signed a release.
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note that the evidence of a bad childhood was contradicted by other
family members’ testimony at sentencing. The same aunt and uncle
who decried Hedrick’s home life admitted that Hedrick was still a
"good kid" who was "wonderful" and "compassionate" despite this
upbringing. Id. at 1155, 1174. Other witnesses testified that Hedrick
grew up in a "normal" family with "wonderful parents," had not been
abused, and had been taught right from wrong. Trial Tr. 708-10, 713-
14, 732. They testified that he was a quiet, helpful, and respectful
young man, who had only recently become involved with people who
led him into criminal activities. Notably as well, neither Hedrick nor
his parents testified at the state habeas evidentiary hearing. Thus, the
chaos, fighting, and dysfunction was not confirmed by those in the
best position to observe it and was belied by the testimony of most
family members. Given the contradictory evidence on this point, it is
not at all clear that this additional information outweighs the aggra-
vating evidence supporting the jury’s findings that Hedrick posed a
continuing serious threat to society and that his conduct in the offense
was vile, horrible, or inhuman.
Moreover, it is not clear that the "bad childhood" theory of mitiga-
tion would have been more successful than the theory Hedrick’s
counsel did pursue. Throughout the guilt phase of the trial, counsel
emphasized Trevor Jones’s leadership role in the crimes and influence
over Hedrick in an attempt to deflect blame onto Jones. Sentencing-
phase testimony built on that theory through the message that Hedrick
was a good kid who had recently been led astray by a bad crowd that
included Jones. We do not see how shifting the focus away from
Jones’s influence on Hedrick to Hedrick’s upbringing would have
been more convincing to the jury. Accordingly, we cannot say that the
Supreme Court of Virginia unreasonably applied the law when it
determined that Hedrick had failed to show prejudice under Strick-
land.
2.
Hedrick next argues that his counsel insufficiently developed evi-
dence of his low intelligence, one of the mitigating factors that Dr.
Hawk recommended in his report. Hedrick alleges that counsel’s
investigation was deficient because they failed to request records
from a child development clinic (containing assessments of his abili-
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ties at age three), failed to question lay witnesses about how Hedr-
ick’s poor intellectual functioning affected him outside the academic
setting, and failed to discover that he did not receive all of the special
education recommended for him because his parents refused those
services. In addition, Hedrick faults his counsel for not connecting his
low intelligence with a propensity to be easily led and become depen-
dant on drugs and alcohol. Br. of Appellant 21.
The Supreme Court of Virginia found neither Strickland prong sat-
isfied. We find Hedrick’s inability to show prejudice dispositive
because there is no reasonable probability that Hedrick’s sentence
would have been different had the additional evidence been intro-
duced. The evidence that Hedrick had received low scores on intelli-
gence tests administered at an early age is largely cumulative of
testimony from Dr. Hawk and Hedrick’s mother during the sentencing
phase that he had learning troubles in his youth, and there is no reason
to believe that additional evidence would have further driven home
this uncontroverted point. See Moody v. Polk, 408 F.3d 141, 154 (4th
Cir. 2005) ("[P]rejudice does not exist simply because more corrobo-
rating evidence could have been presented.").
Likewise, with respect to the connections Hedrick would have had
his trial counsel make between his low intelligence, being easily led,
and being prone to substance abuse, this, too, was nearly identical to
evidence presented. Specifically, Dr. Hawk testified at sentencing that
Hedrick’s immaturity would have made him susceptible to the influ-
ence of his peers and to using drugs. Trial Tr. 788-90. In addition, Dr.
Hawk connected Hedrick’s low intelligence to his thinking during the
offenses. See id. at 791-92. Therefore, the failure to connect his low
intelligence to other non-academic endeavors and the failure to note
that Hedrick did not receive special education do not seem highly rel-
evant by comparison. Accordingly, we cannot deem the Supreme
Court of Virginia’s finding of no prejudice unreasonable.
3.
In a related argument, Hedrick contends that his counsel failed to
develop evidence of Hedrick’s substance abuse problems in mitiga-
tion. He argues that the evidence pointed to his being intoxicated at
the time of the offenses. Br. of Appellant 24-25. Hedrick also argues
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that counsel could have discovered a family history of alcohol abuse,
which Dr. McDaniel, Hedrick’s state habeas evidentiary hearing
expert, testified would suggest genetic risk factors for substance
abuse.
The Supreme Court of Virginia found that Hedrick’s counsel had
presented this mitigation evidence in the manner suggested by Dr.
Hawk. It noted that Dr. Hawk testified at the sentencing hearing that
the use of drugs and alcohol at the time of the crimes "affected his
thinking in a negative way." Hedrick II, 570 S.E.2d at 853. See also
Trial Tr. 792. In addition, Dr. Hawk testified at length regarding
Hedrick’s drug use, possible drug dependency, and consequent black-
outs and amnesia. Trial Tr. 789-90. He also connected Hedrick’s
immaturity with his drug use. Id. In light of these facts, we cannot say
that the Supreme Court of Virginia unreasonably determined Hedrick
was not prejudiced by the failure to present still more evidence related
to Hedrick’s drug and alcohol use.
4.
Finally, Hedrick argues ineffective assistance at sentencing on the
basis that counsel failed to prepare the lay character witnesses for
their testimony. Baber had Hedrick’s grandmother find family and
friends willing to provide positive testimony about Hedrick. Baber did
not subpoena any of these witnesses, and indeed did not know who
would appear. J.A. 975. He prepared them only through a short meet-
ing the day before their testimony, in which he instructed them to "say
something good, but don’t make it too good." Id. at 1513.
It is true that Hedrick’s counsel did little to discuss the substance
of their testimony with these witnesses prior to them taking the stand.
However, in light of the fact that numerous character witnesses did
appear despite not being subpoenaed, and that Hedrick has not shown
how the character witnesses’ testimony could have been stronger with
additional preparation, he has failed to show prejudice.
B.
Hedrick next makes several challenges with regard to his counsel’s
performance preparing for and during trial. He alleges failures in: (1)
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developing evidence that the shooting was accidental; (2) cross-
examining investigators; (3) not challenging the jury instruction on
forcible sodomy; (4) not submitting a voluntary intoxication instruc-
tion; and (5) cross-examining Trevor Jones.
1.
Hedrick’s first challenge is to his attorneys’ failure to develop the
accidental shooting theory of Crider’s death. Hedrick himself offered
two different scenarios of how the shooting was accidental. In his ini-
tial Nebraska statement to police and in his testimony at trial, Hedrick
indicated that he had attempted to aim over Crider’s head, but missed.
J.A. 1582; Trial Tr. 473. However, in his second statement, Hedrick
indicated that the gun accidentally discharged when Jones handed it
to him. J.A. 593-94.
With regard to the accidental discharge theory, Hedrick argues that
the defense could have offered expert testimony that accidental dis-
charge is a common occurrence. However, in light of the fact that not
even Hedrick stuck by this story, his counsel cannot be faulted for
failing to pursue it. See Trial Tr. 483-84 (Hedrick’s testimony that the
gun did not accidentally discharge).
With regard to the theory that Hedrick meant to shoot over Crider’s
head, but missed, Baber did not think that this was a "credible theory
of the case." J.A. 925. However, Harrison acknowledged that he
wanted to find someone to confirm Hedrick’s contention that the
shooting was accidental. Id. at 754-55. Harrison did ask Dr. Oxley,
the medical examiner testifying for the prosecution, about his prior
statement that the gun was 10 feet away (the prosecution was arguing
three to seven feet through a firearms expert). Trial Tr. 388-89. On
direct, Dr. Oxley had also testified that the angle of the shotgun
wound was "very slightly upward." Id. at 378. The defense also pre-
sented Hedrick’s own testimony that he was aiming over Crider’s
head.
In attempting to show his counsel could have done more, Hedrick
produced the de bene esse deposition of Brian Berger, a purported
expert in ballistics. J.A. 1996-2037. However, the Supreme Court of
Virginia explicitly rejected the testimony of this "part-time gunsmith
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and self-taught ‘wound ballistics expert.’" Hedrick II, 570 S.E.2d at
850. Moreover, the Supreme Court of Virginia determined that the
facts simply did not support the suggestion that the shooting was
accidental—at close range, the full load of the shot hit Crider’s
mouth, not the top of her head. Id. at 849-50. See also Trial Tr. 475
(Hedrick testifying, "I think I was pretty close."). The court also
found that the evidence showed that the accidental shooting theory
first came from Special Agent Holt, one of the investigators who took
Hedrick’s Nebraska statement. Indeed, Hedrick admitted at trial that
the officers first suggested that it might have been an accident. J.A.
155.
In light of Hedrick’s inability to corroborate the accidental shoot-
ing theory, we conclude that the Supreme Court of Virginia did not
unreasonably apply Strickland in finding Hedrick was not prejudiced.5
2.
Hedrick next challenges counsel’s failure to cross-examine investi-
gators Holt and Williamson about Hedrick’s first statement. The pros-
ecution used both investigators as witnesses at Hedrick’s trial, and
defense counsel did not cross-examine Williamson at all and cross-
examined Holt only minimally. Hedrick asserts that both men should
have been cross-examined with respect to Hedrick’s cooperation with
investigators.6
5As additional support to its finding of no prejudice here (and in other
claims), the Supreme Court of Virginia relied on a "judicial admission"
by Hedrick that he was guilty of the crimes charged, which included the
intentional killing of Crider and the capital enhancements. Hedrick II,
570 S.E.2d at 850. By this, the court referred to a notarized letter from
Hedrick in which he attempted to withdraw his habeas petition, stating
"I am guilty of the charges in which Im [sic] being obtaind [sic] for." Id.
at 845.
Hedrick argues that clear and convincing evidence reveals that his let-
ter was not a judicial admission. However, we need not decide this ques-
tion because the alternative reasons provided by the Supreme Court of
Virginia for finding no prejudice support the court’s conclusions in each
instance.
6Hedrick also argues that counsel should have challenged the investi-
gators on whether they were the first to suggest the shooting was acci-
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Although cross-examination of the two investigators could have
yielded testimony that they believed Hedrick was being cooperative
when he gave them his statement, see J.A. 1108, 1073-74, we agree
with the Supreme Court of Virginia that Hedrick can show no preju-
dice, see Hedrick II, 570 S.E.2d at 857. Harrison emphasized with
Holt that Hedrick was the first to provide the inculpatory information
that he was the triggerman. In addition, counsel elsewhere stressed the
fact that Hedrick had always acknowledged that he was the shooter.
See, e.g., Trial Tr. 477, 880.
Because evidence of Hedrick’s cooperation was thus presented to
the jury implicitly in the investigators’ testimony and explicitly in
other contexts, it was not unreasonable for the Supreme Court of Vir-
ginia to determine an additional outright acknowledgment of Hedr-
ick’s cooperation by Williamson and Holt would not have influenced
the jury’s decision as to Hedrick’s guilt or sentence.
3.
Next, Hedrick argues that his counsel’s performance was deficient
in failing to request a jury instruction that would require unanimity on
forcible sodomy. Jurors were instructed that to convict on that count,
they must find "that the penis of the defendant penetrated into the
mouth or anus" of the victim. J.A. 123. The relevant statute requires
proof that the accused engaged in "cunnilingus, fellatio, anilingus or
anal intercourse" by force. Va. Code Ann. 18.2-67.1. Hedrick argues
that counsel should have sought an instruction that required a unani-
mous finding that either the penis penetrated the victim’s mouth, the
victim’s anus, or both.7 The Supreme Court of Virginia found that
Hedrick suffered no prejudice, as he was also convicted of capital
dental. In light of the fact that Hedrick admitted on the stand at trial that
the investigators did, in fact, first suggest that it might have been an acci-
dent, J.A. 155, we see no prejudice.
7The evidence presented at trial supported conviction under either or
both theories: Jones testified that Hedrick engaged in oral sex with
Crider and sperm consistent with Hedrick’s DNA was found in Crider’s
rectum.
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murder in the commission of robbery and rape. Hedrick II, 570 S.E.2d
at 861.
Hedrick now counters that because the prosecution emphasized the
sodomy conviction in urging jurors to choose death, he was preju-
diced with respect to his sentencing. This argument is unavailing.
First, unanimity as to the means of commission of a crime is not con-
stitutionally required for a conviction. See Schad v. Arizona, 501 U.S.
624, 631-32 (1991) ("We have never suggested that in returning gen-
eral verdicts in such cases the jurors should be required to agree upon
a single means of commission."). It is therefore not apparent that any
proposed instruction would have been accepted by the court, had it
been offered.
Moreover, to the extent that the oral sodomy supported the aggra-
vating factor that the offense was "outrageously or wantonly vile, hor-
rible or inhuman," we note that there was substantial other evidence
to support this aggravating factor. See Hedrick I, 513 S.E.2d at 639-
40 (discussing the robbery, rape, binding of Crider’s hands, duct-
taping of Crider’s eyes and mouth, and lengthy abduction). Moreover,
the jury here found the additional aggravating factor that Hedrick
would be a "continuing serious threat to society," which could serve
as an independent basis for imposition of the death penalty. In light
of the substantial evidence in aggravation, we cannot conclude that
Hedrick was prejudiced with respect to his sentence.
4.
Hedrick next challenges the adequacy of counsel’s development of
a voluntary intoxication defense and failure to submit a corresponding
jury instruction. In Virginia, voluntary intoxication is only a defense
"when a person voluntarily becomes so intoxicated that he is incapa-
ble of deliberation or premeditation." Wright v. Commonwealth, 363
S.E.2d 711, 712 (Va. 1988). The Supreme Court of Virginia deter-
mined that the evidence did not support a finding that Hedrick was
"significantly intoxicated and impaired" at the time of the killing.
Hedrick II, 570 S.E.2d at 851. This was not unreasonable.
Specifically, the court noted that Hedrick’s accounts of his own
intake were vague and inconsistent, that five to seven hours had
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elapsed between Hedrick’s alcohol and drug intake and the murder,
and that Hedrick’s conduct just before the murder was planned and
purposeful. Id. at 850-51. These findings are all supported by the evi-
dence. Moreover, no one, not even Hedrick’s state evidentiary hearing
expert Dr. McDaniel, could opine with any certainty that Hedrick was
intoxicated at the time that he shot Crider. See J.A. 1384. The evi-
dence thus did not support a voluntary intoxication defense.
5.
Hedrick next challenges his attorneys’ cross-examination of his
accomplice Trevor Jones. He submits that counsel were unprepared
to question Jones and failed to impeach his testimony. Hedrick pro-
claims his innocence of rape and sodomy and argues that confidence
in his conviction and sentence is undermined because Jones presented
the only evidence that the sexual contact Hedrick had with Crider was
not consensual.
Hedrick points out that when it was time for Baber to cross-
examine Jones as planned, Baber asked Harrison if he wanted to do
it instead. J.A. 843. When Harrison indicated that he was unprepared
to do so, Baber conducted a cross-examination that emphasized
Jones’s leadership role in the crimes, but did not impeach his testi-
mony. The impeaching evidence included Jones’s inconsistent state-
ments, felony convictions, and animosity toward Hedrick. With
regard to Jones’s animosity, Hedrick told Baber that when he and
Jones were in Campbell jail, Jones said that he would kill Hedrick for
talking to the authorities first. Id. at 1393-94. Baber had also received
an incident report in which Hedrick reported an assault by Jones. Id.
at 1394-95. Hedrick asserts that this shows Jones’s bias and a motive
to lie.
The Supreme Court of Virginia did not unreasonably determine
that Hedrick showed no prejudice from the failure to cross-examine
Jones on his felony convictions and prior inconsistent statements.
Hedrick II, 570 S.E.2d at 855-56. As both were adduced on direct
examination, further questioning on these points would have been
redundant.
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With regard to counsel’s failure to cross-examine Jones about his
purported bias, the Supreme Court of Virginia also found a failure to
show prejudice to Hedrick’s conviction or sentence. Id. at 856. This,
too, was not an unreasonable application of the law.8
Jones’s testimony was not, as Hedrick suggests, the only evidence
of forced sexual conduct. In his second statement, Hedrick stated that
it was "possible" that he had sexual contact with Crider after her
abduction, and this came out on cross-examination at trial. Trial Tr.
540. In addition, DNA evidence showed sexual contact in that semen
in the victim’s vagina and rectum was consistent with Hedrick’s
DNA. Id. at 424. Hedrick’s own testimony that the sexual contact he
had with Crider was exclusively consensual was also discredited on
cross-examination at trial by his prior statements that he had used pro-
tection for the consensual sex he engaged in with Crider at the apart-
ment. Id. at 528-29. Accordingly, it was not unreasonable for the
Supreme Court of Virginia to conclude that Hedrick was not preju-
diced by this conviction.
Hedrick also argues prejudice with respect to his sentence on the
basis that Jones’s testimony was used to support the vileness aggra-
vating factor. However, in light of the substantial evidence offered in
support of both aggravating factors, a reweighing against the mitigat-
ing evidence does not undermine confidence in the sentence.
C.
Hedrick’s final arguments of ineffective assistance of counsel
relate to Baber and Harrison’s pre-trial performance. Hedrick argues
that counsel (1) failed to collaborate with each other; and (2) gave
Hedrick deficient advice and assistance relating to a second statement
he made to investigators after his arrest.
8To the extent that Hedrick frames his challenge as a failure to fully
investigate the issue of bias, he cannot show prejudice. Hedrick offers
nothing to show what further investigation would have uncovered.
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1.
Hedrick first asserts that his counsel failed to communicate with
each other, viewed their respective roles differently, misunderstood
whether the case was going to trial, and did not discuss a trial strategy
until the Friday before. These arguments are largely based upon pre-
evidentiary hearing affidavits and depositions from Baber and Harri-
son. The Supreme Court of Virginia rejected these allegations as a
factual matter based upon Harrison and Baber’s testimony at the state
habeas evidentiary hearing, where they clarified that they engaged in
numerous informal discussions leading up to the trial and did prepare
for trial, although they expected it to plead out. Hedrick II, 570 S.E.2d
at 848. Because the court’s rejection is well supported by the testi-
mony of both attorneys at trial, we cannot find fault with its decision
to credit the attorneys’ most recent statements.9 Moreover, we note
that the relevant inquiry is not into how well counsel worked together,
but how that pertained to Hedrick’s representation.
2.
Hedrick next argues that his counsel’s assistance was deficient with
respect to a second statement he made to authorities not long after his
arrest. Hedrick had given his story to investigators when he was first
apprehended in Nebraska, and decided on his own that he wanted to
provide them with his version of events again. Although Harrison
advised Hedrick not to make the statement, Baber testified that he
believed Hedrick "probably couldn’t hurt himself, and he might help
. . . [so I told him] if you want to get your side of the thing on the
record, then you may as well do it." J.A. 944-45.
9Hedrick now also alleges that Baber failed to advise Harrison about
the prosecution’s blood spatter expert, and that Harrison was unable to
prepare for cross-examination. See J.A. 344. Hedrick failed to raise or
develop this issue in the state court, and the Warden argues that we
should not consider it here. Even if the state court had looked at this
issue, Hedrick failed to show prejudice. The blood spatter expert testified
to the effect that Crider’s body must have been moved after she was
killed. Id. at 136. Hedrick has not shown that any different cross-
examination by Harrison would have affected the import of this testi-
mony.
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Hedrick argues that Baber’s advice was deficient and that once it
became clear that the statement was going forward, counsel should
have pursued alternatives such as submitting a written statement or
establishing "ground rules" for the questioning. Hedrick argues that
these failures harmed his case because the prosecution was later able
to use inconsistencies between the second statement and Hedrick’s
Nebraska statement to impeach his testimony at trial.
The Supreme Court of Virginia found that Hedrick had decided to
give the statement with or without counsel’s approval and that noth-
ing would dissuade him. Hedrick II, 570 S.E.2d at 860. Harrison testi-
fied to this effect at the evidentiary hearing, J.A. 737-38, and Hedrick
has never contradicted this understanding. Absent clear and convinc-
ing evidence that this factual determination was incorrect, Hedrick
cannot show prejudice from the advice.10
Moreover, Hedrick does not suggest what "ground rules" his coun-
sel should have requested or how a written statement would have
been different from the verbal answers Hedrick gave at the time of the
interview. We therefore cannot conclude that the Supreme Court of
Virginia unreasonably applied the law when it determined that coun-
sel’s performance here was not prejudicial under Strickland.
In sum, Hedrick has failed to show that the Supreme Court of Vir-
ginia unreasonably applied Strickland to determine that he received
ineffective assistance of counsel. For the same reasons discussed
above, even when considering these alleged deficiencies as a whole,
we find no prejudice from their collective effect.11 Accordingly, we
10Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1436-37 (9th Cir.
1995), cited by Hedrick, is distinguishable. In that case, the Ninth Circuit
found that counsel’s advice to provide a statement to police violated Str-
ickland. However, in Harris, it was the attorney who first suggested giv-
ing the statement, and there was no suggestion that the defendant would
have done so absent the attorney’s advice. Id. at 1436-37.
11The court dismissed Hedrick’s cumulative ineffective assistance of
counsel argument as procedurally defaulted for Hedrick’s failure to raise
it as a separate claim with the state court. J.A. 2887-88. Although the
Supreme Court of Virginia addressed Hedrick’s arguments separately,
Hedrick’s petition raises ineffective assistance of counsel as a single
claim, which inherently contemplates the totality of counsel’s perfor-
mance. Therefore, the district court was incorrect to reject Hedrick’s
argument on that basis.
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affirm the district court’s dismissal of Hedrick’s ineffective assistance
of counsel claim.
III.
Hedrick’s next claim for relief is that the Commonwealth failed to
reveal two of Jones’s statements in violation of Brady v. Maryland,
373 U.S. 83 (1963). The Supreme Court of Virginia deemed this
claim procedurally defaulted, and the district court concluded that it
could not review the claim because the state court relied on an inde-
pendent and adequate state ground in refusing to consider it. Hedrick
argues that the default rule imposed was not "adequate" and that this
Court should remand to the district court for a determination on the
merits.12
A.
A federal claims is deemed procedurally defaulted where "a state
court has declined to consider the claim’s merits on the basis of an
adequate and independent state procedural rule." Fisher v. Angelone,
163 F.3d 835, 844 (4th Cir. 1998). A federal court cannot review a
procedurally defaulted claim unless the prisoner can demonstrate
cause and prejudice for the default or a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
"A rule is adequate if it is regularly or consistently applied by the
state court . . . and is independent if it does not ‘depend[ ] on a federal
constitutional ruling.’" Fisher, 163 F.3d at 844 (citing Johnson v.
Mississippi, 486 U.S. 578, 587 (1988) and quoting Ake v. Oklahoma,
12The Warden does not direct arguments to the adequacy of the rule,
believing the issue is not before this Court. In seeking certificates of
appealability, Hedrick proposed both his Brady claim and a separate
claim that the default rule the state court applied against his Brady claim
was inadequate. Br. of Appellant 64. The Warden asserts that because
this Court denied a certificate of appealability on the latter claim, the
default rule’s adequacy is not open for consideration here. However, the
fact that this Court did not believe a separate constitutional claim could
be made out of the adequacy of the state ground does not mean that
Hedrick cannot use this argument for his Brady claim.
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470 U.S. 68, 75 (1985)). Adequacy is itself a "federal question," and,
therefore, not within the State’s prerogative to decide. Lee v. Kemna,
534 U.S. 362, 375 (2002).
In general, a violation of "firmly established and regularly followed
state rules" will be adequate to foreclose review. Id. (internal quota-
tion marks and citations omitted). Even if a rule is generally sound,
a petitioner may show that the state ground is not adequate where: (1)
the rule is not "regularly and consistently applied by the state court
to a particular type of federal constitutional claim," Brown v. Lee, 319
F.3d 162, 170 (4th Cir. 2003) (internal citations omitted); or (2) the
rule is exorbitantly applied to the circumstances at issue, Kemna, 534
U.S. at 376.
Here, the Supreme Court of Virginia deemed Hedrick’s Brady
claim procedurally defaulted for his failure to address it in his open-
ing brief. Hedrick II, 570 S.E.2d at 862. Although Hedrick raised his
Brady claim in his habeas petition to the Supreme Court of Virginia,
see J.A. 2084, after the evidentiary hearing on ineffective assistance
of counsel, he submitted a brief addressing only that claim and not
referencing his Brady claim. Under Rule 5:17(c), the brief was
required to "list the specific errors in the rulings below upon which
the appellant intends to rely." Va. Sup. Ct. R. 5:17(c).
B.
In challenging the adequacy of Rule 5:17(c), Hedrick first asserts
that the Supreme Court of Virginia’s construction of Rule 5:17(c) was
neither firmly established nor regularly followed because it was
applied for the first time in his case. Reply Br. of Appellant 15. How-
ever, Hedrick has not challenged the general validity of Rule 5:17(c),
which requires litigants to brief assignments of error or else risk
waiver. See Yeatts v. Angelone, 166 F.3d 255, 264 (4th Cir. 1999)
(noting that "[t]he Supreme Court of Virginia had applied [Rule
5:17(c)] numerous times prior to the date Yeatts filed his petition for
appeal to refuse to address issues that were not preserved properly
with specific assignments of error."). Although Hedrick appears to
argue that the unique application of Rule 5:17(c) to these circum-
stances renders it inadequate, "[c]onsistent or regular application of
a state rule of procedural default does not require that the state court
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show an undeviating adherence to such rule admitting of no exception
. . . when the state procedural rule has, as a general rule, been applied
in the vast majority of cases." Yeatts, 166 F.3d at 263-64 (internal
quotation marks and citations omitted). Thus, even though the
Supreme Court of Virginia "previously had not applied Rule 5:17(c)
to facts identical to those presented by [Hedrick’s] petition," Rule
5:17(c) is nevertheless "firmly established" in its general requirement
that briefs must include all assignments of error. Id. (citing O’Dell v.
Netherland, 95 F.3d 1214, 1241 (4th Cir.), aff’d, 521 U.S. 117 (1997)
("[W]henever a procedural rule is derived from state statutes and
supreme court rules . . . the rule is necessarily ‘firmly established.’")).
See also Mueller v. Angelone, 181 F.3d 557, 584 (4th Cir. 1999)
(finding that the petitioner’s procedural default under Rule 5:17(c) for
failure to brief issues that were designated as assignments of error
was an adequate state ground to foreclose review of the federal
claim).
Neither of the cases on which Hedrick relies—James v. Kentucky,
466 U.S. 341, 348-49 (1984) and Ford v. Georgia, 498 U.S. 411, 425
(1991)—stands for his broad proposition that a state court’s applica-
tion of a procedural bar to new facts is an inadequate state ground.
First, James addressed a situation in which the asserted state ground
did not rely on enacted state rules or settled precedent in state com-
mon law. The Supreme Court thus found that the defendant’s proce-
dural default rested on a distinction between "admonitions" and
"instructions," a concept which itself was not established by state law,
and concluded that the perceived default was not an adequate state
ground to foreclose review of his constitutional claims. Id.
Second, Ford involved a state supreme court’s retroactive applica-
tion of a state procedural rule requiring contemporaneous Batson
challenges in a case which pre-dated Batson v. Kentucky, 476 U.S. 79
(1986). As such, Ford does not address situations in which a rule,
firmly established prior to the party’s procedural default, is applied
to a particular fact pattern for the first time. Indeed, Ford is distin-
guishable from the case at bar because here, Rule 5:17(c)’s require-
ment that the litigants must brief assignments of error had been
adopted, announced, and established well before Hedrick’s petition.
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C.
Notwithstanding the general validity of Rule 5:17(c), Hedrick
relies on Lenz v. Warden, 579 S.E.2d 194 (Va. 2003) to establish the
inconsistency of the rule’s application. In Lenz, decided shortly after
Hedrick II, the Supreme Court of Virginia faced nearly the identical
procedural posture presented here, except that in Lenz’s opening brief
after the evidentiary hearing, the petitioner "incorporated by refer-
ence" the assignments of error designated in his petition that were not
the subject of the hearing.
The Supreme Court of Virginia acknowledged that in Hedrick II,
it held that Hedrick’s claims "were procedurally defaulted because the
petitioner, who had asserted those claims in his petition for a writ of
habeas corpus, failed to discuss those claims in his opening brief."
Lenz, 579 S.E.2d at 196. However, the court found the incorporation
by reference controlling, specifically stating, "[w]e think this is a
material difference." Id. Additionally, the court viewed its holding as
an exception to the rule that litigants cannot incorporate by reference
arguments that were made in another court or another case, reasoning
that:
Unlike the situation that may exist when a litigant seeks to
incorporate by reference arguments filed in another court or
in another case, this Court has no difficulty ascertaining the
exact arguments that the petitioner has incorporated by ref-
erence from other pleadings filed in this Court.
Id.
Lenz and Hedrick II do not appear to be inconsistent. Rather, Lenz
narrows Hedrick II to the extent that petitioners must still brief
assignments of error contained in the petition but may satisfy this
requirement by incorporating them by reference into the brief. Cf.
Brown, 319 F.3d at 171-74 (procedural rule inconsistently applied
where defendants in six different cases obtained judicial review over
merits of their constitutional unanimity claim, whereas the defendant
in that appeal did not obtain review).
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Alternatively, Hedrick argues that the distinction made in Lenz
with regard to the insertion of "incorporated by reference" is an "arid
ritual of meaningless form" which does not serve a legitimate state
interest. Reply Br. of Appellant 16 (quoting Henry v. Mississippi, 379
U.S. 443, 447-48 (1965)).13 However, the Supreme Court of Virginia
has held that the purpose served by Rule 5:17(c) is to "point out the
errors with reasonable certainty in order to direct this court and
opposing counsel to the points on which appellant intends to ask a
reversal of the judgment." Kirby v. Commonwealth, 570 S.E.2d 832,
834 (Va. 2002) (quoting Yeatts v. Murray, 455 S.E.2d 18, 21 (Va.
1995)). The incorporation by reference requirement serves this pur-
pose by putting the Supreme Court of Virginia on notice of the rele-
vant issues on appeal.
D.
Finally, Hedrick asserts that the Supreme Court of Virginia exorbi-
tantly applied Rule 5:17(c) to his case. Reply Br. of Appellant 13-14.
Specifically, Hedrick argues that Rule 5:17(c)’s requirement that the
brief list the errors in the "rulings below," referred to the circuit
court’s rulings on the evidentiary hearing and therefore barred him
from briefing issues unrelated to the circuit court’s rulings. Br. of
Appellant 65-66. In effect, Hedrick maintains that he could not com-
ply with Rule 5:17(c) without causing his Brady claim to be "ignored"
by the Supreme Court of Virginia. Id. at 66.
The Supreme Court has found application of a generally sound rule
"exorbitant" and inadequate to foreclose review where: the petitioner
substantially complies with the rule; no published state court decision
demands perfect compliance; and perfect compliance would not have
changed the state court’s decision. Kemna, 534 U.S. at 387. See also
Wilson v. Ozmint, 357 F.3d 461, 466 (4th Cir. 2004) (applying
Kemna). In Kemna, the defendant had orally sought a continuance
during trial because his witnesses had disappeared, such that he could
not raise an alibi defense. Without citing any particular rule, the trial
13Notably, Henry’s precedential value is dubious in light of the
Supreme Court’s apparent disavowals of it. See Kemna, 534 U.S. at 386
n.16 (acknowledging that certain commentators have described Henry as
being "radical").
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court denied the continuance, stating that he had to be with his hospi-
talized daughter the next day and had a trial scheduled the following
week. Kemna, 534 U.S. at 381. The Missouri Court of Appeals
affirmed the defendant’s conviction, reasoning that his application for
a continuance failed to comply with a state procedural rule because
it was oral and unsupported by an affidavit. Id. at 372-73.
On appeal, the Supreme Court found that (1) the defendant had
substantially complied with the continuance rule; (2) no published
Missouri decision required perfect compliance; and (3) perfect com-
pliance would not have changed the result since the trial judge indi-
cated he had to visit his hospitalized daughter. Id. at 387.
Accordingly, the defendant’s perceived procedural default was not an
adequate state ground to foreclose review over his Sixth Amendment
claim. Id.
This case is unlike Kemna. Here, Hedrick did not substantially
comply with Rule 5:17(c)’s requirement that he brief the Brady error
set forth in his amended petition. Although he discussed the Brady
issue at length in his petition, his mistaken belief that he was not
required to brief the issue did not derive from a reasonable belief that
the Supreme Court of Virginia had condoned that inaction. See Wil-
son, 357 F.3d at 466 (finding substantial compliance where the defen-
dant made several objections to the discovery issue at trial and "only
failed to make his claim on direct appeal after he received what he
reasonably believed to be the blessing of the South Carolina Supreme
Court"). Nor was his interpretation of "rulings below" as exclusively
referring to the circuit court rulings sanctioned by the court in any
manner. Moreover, Virginia cases require strict compliance with this
rule. See Kasi v. Commonwealth, 508 S.E.2d 58, 60 (Va. 1998)
(issues designated as assignments of error in petition but not briefed
are waived); Jenkins v. Commonwealth, 423 S.E.2d 360, 364 (Va.
1992) (same). Finally, Lenz indicates that formally perfect compliance
would have changed the Supreme Court of Virginia’s disposition of
the claim.
Because the default rule applied was thus adequate, we affirm the
district court’s dismissal of Hedrick’s Brady claim on the basis of an
adequate and independent state procedural rule foreclosing review.
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We therefore do not reach the Warden’s alternative assertion that this
claim is frivolous.
HAMILTON, Senior Circuit Judge, writing for the court in Parts IV
and V:
IV.
Hedrick also claims that the district court erred when it dismissed
his claim that he cannot be executed because he is mentally retarded
as defined by Virginia law.
While Hedrick’s state habeas petition was pending before the Vir-
ginia Supreme Court, the Supreme Court of the United States issued
its decision in Atkins v. Virginia, 536 U.S. 304 (2002), on June 20,
2002. In Atkins, the Court held that the Eighth Amendment prohibits
the execution of the mentally retarded. Id. at 321. In so holding, the
Court left to the states "the task of developing appropriate ways to
enforce the constitutional restriction upon their execution of sen-
tences." Id. at 317 (citation and internal quotation marks omitted).
Instead of seeking leave to amend his state habeas petition, see
Rule 1:8 of the Rules of the Virginia Supreme Court ("leave to amend
shall be liberally granted in furtherance of the ends of justice"), Hedr-
ick elected to proceed to oral argument on September 10, 2002 with-
out raising an Atkins claim. On November 1, 2002, the Virginia
Supreme Court denied Hedrick’s state habeas petition.
On December 2, 2002, Hedrick filed a petition for rehearing pursu-
ant to Rule 5:39 of the Rules of the Virginia Supreme Court. On the
last page of his ten-page petition, Hedrick suggested that his pre-trial
IQ score of 76 "may support a diagnosis of mental retardation." He
also suggested that, if he were found to be mentally retarded, his exe-
cution would violate Atkins. On January, 10, 2003, Hedrick’s petition
for rehearing was denied.
In his federal petition, Hedrick raised an Atkins claim, asserting
that he could not be executed because he is mentally retarded. In
rejecting this claim, the district court first held that the Atkins claim
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was procedurally barred because Hedrick failed to take advantage of
a viable opportunity to raise the claim on state habeas. According to
the court, Hedrick was free to raise his Atkins claim by seeking leave
to amend his state habeas petition but chose not to do so. Alterna-
tively, the court held that Hedrick failed to put forth facts establishing
an Atkins claim.
A.
In the interest of giving state courts the first opportunity to consider
alleged constitutional errors occurring in a defendant’s state trial and
sentencing, a § 2254 petitioner is required to "exhaust" all state court
remedies before a federal district court can entertain his claims. 28
U.S.C. § 2254(b) & (c); see also Rose v. Lundy, 455 U.S. 509, 518
(1982) (noting that "[t]he exhaustion doctrine is principally designed
to protect the state courts’ role in the enforcement of federal law and
prevent disruption of state judicial proceedings"). Thus, a federal
habeas court may consider only those issues which have been "fairly
presented" to the state’s highest court. Picard v. Connor, 404 U.S.
270, 275-78 (1971); Spencer v. Murray, 18 F.3d 237, 239 (4th Cir.
1994).
The exhaustion requirement, though not jurisdictional, Granberry
v. Greer, 481 U.S. 129, 131 (1987), is strictly enforced, Rose, 455
U.S. at 522. Consequently, when a petition includes both exhausted
and unexhausted claims, the district court must dismiss the entire peti-
tion. Id. However, the exhaustion requirement for claims not fairly
presented to the state’s highest court is technically met when exhaus-
tion is unconditionally waived by the state, Sweezy v. Garrison, 694
F.2d 331, 331 (4th Cir. 1982) (per curiam), or when a state procedural
rule would bar consideration if the claim was later presented to the
state court, Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
Whether Hedrick’s Atkins claim is exhausted turns on whether the
claim was fairly presented to the Virginia Supreme Court on state
habeas. We conclude that the claim was not fairly presented.
Under Virginia law, the Virginia Supreme Court has "exclusive
jurisdiction" with respect to habeas petitions "filed by a petitioner
held under the sentence of death." Va. Code Ann. § 8.01-654(C)(1).
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Once a state habeas petition is pending before the Virginia Supreme
Court, the court can order the circuit court which entered judgment
to hold an evidentiary hearing. Id. § 8.01-654(C)(1). The hearing must
be conducted within ninety days of the Virginia Supreme Court’s
order, and the circuit court has sixty days after the completion of the
hearing to report its findings of fact and recommended conclusions of
law to the Virginia Supreme Court. Id. § 8.01-654(C)(3). Any objec-
tion to the circuit court’s report must be filed within thirty days of the
date the report is filed in the Virginia Supreme Court. Id.
While a state habeas petition is pending before the Virginia
Supreme Court, "[l]eave to amend shall be liberally granted in fur-
therance of the ends of justice." Rule 1:8 of the Rules of the Virginia
Supreme Court. The Virginia Supreme Court has interpreted this rule
to allow amendment unless the nonmovant would be prejudiced by
the amendment. Kole v. City Of Chesapeake, 439 S.E.2d 405, 409
(Va. 1994). Moreover, unless a petitioner seeks leave to amend his
state habeas petition, the court is without jurisdiction to entertain any
additional claims in a new state habeas petition. See Mallory v. Smith,
27 F.3d 991, 995 (4th Cir. 1994) (applying Virginia law).
In this case, Hedrick did not avail himself of the mechanism in
place to enable him to raise his Atkins claim on state habeas. To raise
his Atkins claim, Hedrick should have sought leave to amend his state
habeas petition. As noted above, amendment of a petition is the mech-
anism for raising additional claims while a state habeas petition is
pending. For reasons unclear from the record, Hedrick chose not to
seek leave to amend and, unquestionably, he had plenty of time to
raise the claim before the Virginia Supreme Court heard oral argu-
ment in his case. By failing to follow established Virginia procedure,
we are constrained to conclude that Hedrick’s Atkins claim is not
exhausted for purposes of federal habeas review because the claim
was not fairly presented to the Virginia Supreme Court. Cf. 28 U.S.C.
§ 2254(c) ("An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning of
this section, if he has the right under the law of the State to raise, by
any available procedure, the question presented"). To hold otherwise
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would allow Hedrick to make an end run around state court review
of his Atkins claim.1
Because Hedrick’s Atkins claim is not exhausted for purposes of
federal habeas corpus review, the claim must be dismissed unless the
Commonwealth unconditionally waived exhaustion, Sweezy, 694 F.2d
at 331, or a state procedural rule would bar consideration if the claim
was later presented to the Virginia Supreme Court, Coleman, 501
U.S. at 735 n.1. The Commonwealth has not unconditionally waived
exhaustion, so we are left with the question of whether a state proce-
dural rule would bar consideration of this claim if it were presented
to the Virginia Supreme Court.
In this case, Virginia law precludes consideration of Hedrick’s
mental retardation claim. Under Virginia Code Annotated § 8.01-
654.1, capital habeas petitioners are limited to one state habeas peti-
tion filed within sixty days of the denial on direct appeal of the peti-
tioner’s petition for writ of certiorari with the United States Supreme
Court. This section obviously is designed to encourage capital habeas
petitioners to raise all viable claims in one habeas proceeding. See
also id. § 8.01-654(B)(2) (generally prohibiting successive petitions);
id. § 8.01-654.2 (prohibiting a petitioner who was sentenced to death
before April 29, 2003 and has completed both a direct appeal and a
state habeas proceeding from filing a successive petition raising an
Atkins claim). Hedrick did not meet the goals of these statutes, as he
failed to amend his state habeas petition. Because Hedrick cannot
return to state court to file a new state habeas petition, his Atkins
claim is procedurally barred.
1We note that our conclusion that Hedrick’s Atkins claim is unex-
hausted is not altered by the fact that Hedrick raised an Atkins claim in
his petition for rehearing of the denial of his state habeas petition. Rais-
ing a claim in a petition for rehearing does not fairly present the claim
to the state’s highest court. See Lewis v. Sternes, 390 F.3d 1019, 1031
(7th Cir. 2004) (noting that a petitioner "does not fully and fairly present
a federal claim to the state courts when he raises that claim for the first
time in a petition for rehearing before the state appellate court or in a
petition asking the state supreme court to grant him leave to appeal");
Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 669 (7th Cir. 1990)
(noting that raising a claim in a petition for rehearing to a state appellate
court does not constitute fair presentment).
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In his separate opinion dissenting in part and concurring in the
judgment, Judge Gregory states that Hedrick’s Atkins claim is not
procedurally defaulted because Virginia Code Annotated § 8.01-654.2
"demonstrates Virginia’s decision to decline her opportunity to first
consider the Atkins claims of death-sentenced prisoners with Hedr-
ick’s procedural posture." Post at 40. According to Judge Gregory,
§ 8.01-654.2 "specifically contemplates" that Hedrick’s Atkins claim
"would be presented in federal court." Post at 40. Thus, Judge Greg-
ory concludes, "the comity interests that would counsel against hear-
ing Hedrick’s claim are not implicated." Post at 40.
Section 8.01-654.2 provides an avenue for a Virginia prisoner who
was sentenced to death before April 29, 2003 to raise an Atkins claim
either on direct appeal or on state habeas. Va. Code Ann. § 8.01-
654.2. If the prisoner has not commenced a direct appeal, he is
directed to raise the claim on direct appeal. Id. Similarly, if the pris-
oner has not commenced his state habeas proceeding, he is directed
to raise the claim in his state habeas petition. Id. If a direct appeal or
a state habeas petition is pending at the time the prisoner desires to
raise an Atkins claim, the prisoner is instructed to raise the claim by
filing a supplemental brief in the case of an appeal or an amended
petition in the case of a state habeas proceeding. Id. With regard to
a prisoner who was sentenced to death before April 29, 2003 and who
has completed both his direct appeal and state habeas proceeding,
§ 8.01-654.2 states that the prisoner will not be entitled to file "any
further habeas petitions" and that "his sole remedy shall lie in federal
court." Id.
With all due respect to Judge Gregory, there is nothing extraordi-
nary about § 8.01-654.2 that calls into question our settled exhaustion
and procedural default jurisprudence. The language of § 8.01-654.2
does not suggest that the Commonwealth is declining to entertain an
Atkins claim that could have been raised prior to the denial of a pris-
oner’s state habeas petition. Indeed, the statute encourages a prisoner
whose state habeas petition is pending to raise an Atkins claim by way
of an amended petition. Simply put, the "further habeas" petition and
"sole remedy" language of § 8.01-654.2 indicates that an Atkins claim
may not be raised in a successive petition and that any remedies that
may exist for the successive claim lie in federal court. There is noth-
ing extraordinary about this language, which unquestionably is con-
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sistent with the Commonwealth’s desire to have all claims that could
have been raised in one habeas proceeding resolved in that proceed-
ing. Failing to raise an Atkins claim by way of requesting leave to
amend a state habeas petition, just like failing to raise any other claim
that could have been timely raised on state habeas, subjects the claim
to review under the principles of exhaustion and procedural default
once the claim is presented in federal court. Here, Hedrick’s Atkins
claim is procedurally defaulted because Virginia law bars further con-
sideration of a claim he did not fairly present to the state court when
he clearly had the opportunity to do so.
Absent a fundamental miscarriage of justice, which Hedrick does
not assert, we may not review procedurally barred claims "unless the
prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law." Coleman, 501 U.S.
at 750. To establish cause, a petitioner must "show that some objec-
tive factor external to the defense impeded counsel’s efforts to com-
ply with the State’s procedural rule." Murray v. Carrier, 477 U.S.
478, 488 (1986). This requires a demonstration that "the factual or
legal basis for the claim was not reasonably available to the claimant
at the time of the state proceeding." Roach v. Angelone, 176 F.3d 210,
222 (4th Cir. 1999).
There is nothing in the record to suggest that Hedrick was impeded
from amending his state habeas petition to include his Atkins claim.
Thus, he cannot establish cause for the default. Accordingly, Hedr-
ick’s default cannot be excused.
B.
Even if Hedrick could get around the procedural bar in this case,
he would not be entitled to relief because his Atkins claim fails on the
merits. As noted above, Atkins left to the states the task of "develop-
ing appropriate ways to enforce the constitutional restriction" on exe-
cuting the mentally retarded. 536 U.S. at 317. The Virginia General
Assembly responded by enacting its definition of "mental retardation"
requiring, among other things, that the capital defendant’s disability
originate before the age of eighteen and be characterized by "signifi-
cantly subaverage intellectual functioning as demonstrated by perfor-
mance on a standardized measure of intellectual functioning
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administered in conformity with accepted professional practice, that
is at least two standard deviations below the mean." Va. Code Ann.
§ 19.2-264.3:1.1(A). The Virginia Supreme Court, consistent with the
standards of the American Psychiatric Association, has determined
that this standardized measure corresponds to an IQ score of 70 or
less. Johnson v. Commonwealth, 591 S.E.2d 47, 59 (Va. 2004),
vacated on other grounds, 125 S. Ct. 1589 (2005). Thus, Hedrick is
mentally retarded under Virginia law only if he establishes, among
other requirements, that his intellectual functioning would have corre-
sponded to an IQ score of 70 or less before he turned the age of eigh-
teen. Walker, 399 F.3d at 320.2
The district court dismissed Hedrick’s Atkins claim, concluding
that "Hedrick points to no evidence that suggests that he is mentally
retarded." Because the district court granted the Commonwealth’s
motion to dismiss, our review is de novo. Walker, 399 F.3d at 319.
In resolving Hedrick’s Atkins claim, we must determine whether
Hedrick "has set forth facts that, if true, would demonstrate that he is
mentally retarded under Virginia law." Id. at 320.
In support of his Atkins claim, Hedrick primarily relies on the April
22, 1998 pre-trial report of his mitigation expert, Dr. Gary Hawk, who
at the time was an associate professor of clinical psychiatric medicine
at the University of Virginia. In his report, Dr. Hawk noted that Hedr-
ick received a score of 76 on a WAIS IQ test administered in anticipa-
tion of trial. According to Dr. Hawk, Hedrick’s intellectual
functioning was "below average but above the range indicative of
mental retardation."3 Dr. Hawk’s report also states that Hedrick
2We note that a habeas petitioner is not required to submit an IQ score
of 70 or less from a test taken before he turned the age of eighteen.
Walker v. True, 399 F.3d 315, 323 n.7 (4th Cir. 2005). Nevertheless, the
petitioner must allege that his intellectual functioning would have fallen
below this standard before he turned the age of eighteen. See Va. Code
Ann. §§ 19.2-264.3:1.1(A),(B)(3).
3At trial, Dr. Hawk testified on the question of IQ testing:
I conducted intelligence testing, and the results of that testing
indicated that Mr. Hedrick’s level of intellectual functioning is
in the borderline range. His full scale IQ is seventy-six, and what
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"seemed to put forth good effort on the WAIS-III test, but rejected
Hedrick’s contemporaneous scores on other psychological tests as
invalid due to over-endorsement of items indicative of problems of
symptomatology."4 Hedrick posits that, when taking into account the
standard error of measurement (SEM),5 his true IQ score is some-
where between 71 and 81 and that this evidence, coupled with the evi-
dence of Hedrick’s poor performance in school, demonstrates that he
is mentally retarded.
Recently, in Walton v. Johnson, No. 04-19, 2006 WL 561492 (4th
Cir. March 9, 2006) (en banc), we held that, because the petitioner
failed to allege sufficient facts demonstrating that his intellectual
functioning was 70 or less before he turned the age of eighteen, the
district court properly dismissed the petitioner’s Atkins claim. Id. at
*12-13. In that case, the petitioner alleged that he received an IQ
score of 77 when his trial expert tested him a few months after he
turned the age of eighteen. Id. at *12. According to the petitioner, his
IQ should have been reduced to 74 because of the "Flynn Effect" and
even lower because of the SEM. Id. at *12-13.6 We rejected the peti-
we mean by that is that approximately ninety-five percent of
folks who would take this test—and this test is the most well
standardized intellectual assessment test that we have. Ninety-
five percent of folks would score higher than Mr. Hedrick would.
So these scores are below the average range. They are not so low
as to suggest mental retardation, but they are far below average.
4The Commonwealth’s trial expert, Dr. Evan Nelson, reviewed Dr.
Hawk’s test data and independently confirmed that Hedrick’s IQ score
was 76, which was in the fifth percentile, and opined that "mild depres-
sion may have caused his scores on some scales to be lower than his true
potential." Dr. Nelson agreed that other testing results were invalid
because Hedrick’s "overendorsement of symptoms was intentional, and
not the byproduct of lazy responding, illiteracy or mental confusion."
5The premise of the SEM is that IQ scores have a measurement error
of plus or minus five points. Walker, 399 F.3d at 322.
6"The premise of the ‘Flynn Effect’ is that IQ scores increase over time
and that IQ tests that are not re-normed to take into account rising IQ
levels will overstate a testtaker’s IQ score." Walton, 2006 WL 561492,
at *12 n.22.
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tioner’s argument on the basis that the petitioner could only speculate
that the SEM actually lowered his IQ score. Id. at *13.
As in Walton, only speculation on our part would lower Hedrick’s
IQ score of 76. As Hedrick concedes, the SEM could potentially
increase his IQ score to 81. Moreover, for whatever reason (rightly or
wrongly), Hedrick does not rely on the Flynn Effect to lower his IQ
score. Considering Hedrick’s failure to rely on the Flynn Effect, the
fact that the SEM could either raise or lower Hedrick’s IQ score, and
the paucity of evidence indicative of mental retardation, we are con-
strained to conclude that Hedrick has not met his evidentiary burden
with regard to his Atkins claim. See id. at *13 (holding that conclusory
allegations did not preclude the dismissal of the petitioner’s mental
retardation claim); cf. Johnson, 591 S.E.2d at 59 (holding that the
petitioner’s Atkins claim was frivolous because the petitioner had
received IQ scores of 75 and 78 and because his own expert witness
stated that he was "not retarded"), vacated on other grounds, 125
S. Ct. 1589 (2005); Morrisette v. Commonwealth, 569 S.E.2d 47, 56
n.8 (Va. 2002) (rejecting an Atkins claim where the petitioner’s IQ
scores were 77 and 82 and where the evaluating psychiatrist opined
that petitioner’s intelligence was "roughly below average"). Accord-
ingly, the district court’s dismissal of Hedrick’s Atkins claim is
affirmed.
V.
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
GREGORY, Circuit Judge, dissenting in part from Part IV and con-
curring in the judgment only in Part V:
In Part IV, the majority concludes that Hedrick’s claim that his
execution is prohibited because he is mentally retarded must be dis-
missed because (1) it is procedurally barred and (2) he has failed to
meet his evidentiary burden on the merits. With regard to the first
basis, I disagree that the procedural default doctrine applies here to
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preclude federal review, and I therefore respectfully dissent from Part
IV.A. As to the second basis, although the recent decision in Walton
v. Johnson, No. 04-19, 2006 WL 561492 (4th Cir. March 9, 2006) (en
banc), compels me to concur in the ultimate disposition of Hedrick’s
claim in Part IV.B of the majority opinion, I write separately to voice
my concern with this precedent.
A.
The circumstances surrounding the timing of Hedrick’s state
habeas petition, the United States Supreme Court’s decision in Atkins
v. Virginia, 536 U.S. 304 (2002), and Virginia’s legislative response
to Atkins present a highly unusual backdrop to Hedrick’s claim of
mental retardation. On June 20, 2002, as the proceedings in Hedrick’s
state habeas petition drew to a close, the United States Supreme Court
issued its decision in Atkins, holding that the Eighth Amendment bars
the execution of the mentally retarded. The Court neither defined
mental retardation nor prescribed the method by which to raise such
a claim, leaving these matters to the States. Id. at 317. By that time,
Hedrick’s Virginia habeas petition had been pending for more than
two years, the state habeas evidentiary hearing was long over, and
briefs had been filed. All that remained was oral argument, which the
Supreme Court of Virginia held on September 10, 2002. The court
issued its decision denying Hedrick habeas relief on November 1,
2002. Although Hedrick did not raise Atkins prior to this denial, he
did assert that he was mentally retarded in his December 2, 2002 peti-
tion for rehearing to the Supreme Court of Virginia. Pet. for Reh’g 10,
Dec. 2, 2002.1 In a one-page order issued on January 10, 2003, the
Supreme Court of Virginia denied rehearing and dismissed the peti-
tion without addressing Hedrick’s request for expert assistance or his
Atkins claim.
The Virginia legislature did not respond to Atkins until April 29,
2003, several months after the final ruling on Hedrick’s petition. On
that date, in addition to defining mental retardation, see Va. Code
Ann. § 19.2-264.3:1.1, Virginia also enacted Virginia Code Anno-
tated § 8.01-654.2, providing the procedures for the "[p]resentation of
1In the petition, he requested both an evidentiary hearing and the
court’s assistance in obtaining an expert assessment of his mental state.
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claim of mental retardation by person sentenced to death before April
29, 2003." Under § 8.01-654.2, a prisoner with a pending state habeas
petition may file an amended petition asserting a mental retardation
claim, which must be considered as long as it is not frivolous. How-
ever, the statute provides that a petitioner such as Hedrick, who has
"completed both a direct appeal and a habeas corpus proceeding . . .
shall not be entitled to file further habeas petitions in the Supreme
Court [of Virginia] and his sole remedy shall lie in federal court." Id.
Thereafter, Hedrick filed his federal habeas petition in the district
court, asserting his Atkins claim.2
Given this procedural history, the threshold question of this appeal
is whether Hedrick’s Atkins claim is exhausted for purposes of federal
habeas review. The doctrine of exhaustion is designed to give state
courts a "full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal courts."
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "This exhaustion
requirement is . . . grounded in principles of comity; in a federal sys-
tem, the States should have the first opportunity to address and correct
alleged violations of [a] state prisoner’s federal rights." Coleman v.
Thompson, 501 U.S. 722, 731 (1991). The requirement of exhaustion
is mandated by statute in the federal habeas context. See 28 U.S.C.
2254(b)(1). Federal courts may not grant an application for a writ of
habeas corpus unless "(A) the applicant has exhausted the remedies
available in the courts of the State; or (B)(i) there is an absence of
available State corrective process; or (ii) circumstances exist that ren-
der such process ineffective to protect the rights of the applicant." Id.
Whether a claim is exhausted is tested at the time of the federal
petition. Gray v. Netherland, 518 U.S. 152, 161 (1996). As the major-
ity recognizes, the exhaustion requirement is met if a state rule would
now prevent future consideration of the claim. Id. At the time Hedrick
filed his habeas petition in the district court, Virginia law foreclosed
him from later bringing his Atkins claim in the Commonwealth. Spe-
cifically, the newly enacted Virginia statute addressing mental retar-
2Hedrick appears to be the only death-sentenced Virginia prisoner
whose Virginia habeas petition was pending when Atkins was decided,
but whose proceedings were complete by the April 29, 2003 effective
date of the statute.
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dation claims provides that an individual sentenced to death before
April 29, 2003, whose Virginia proceedings are complete "shall not
be entitled to file any further habeas petitions in the Supreme Court
[of Virginia] and his sole remedy shall lie in federal court." Va. Code
Ann. § 8.01-654.2. Therefore, Hedrick’s Atkins claim is exhausted by
this law.
Ordinarily, when exhaustion occurs because a state rule bars future
state consideration of a federal habeas petitioner’s claim, the related
doctrine of procedural default applies to preclude federal review. This
is because, in the usual case, it is the petitioner’s failure to follow
state procedures that causes the state rule to bar consideration. In
other words, the petitioner has procedurally defaulted on his claim. In
such a circumstance, comity instructs that we decline to consider the
claim out of respect for the state procedural rule that the petitioner
violated. See Dretke v. Haley, 541 U.S. 386, 392-93 (2004) (a proce-
dural default "provides only a strong prudential reason, grounded in
‘considerations of comity and concerns for the orderly administration
of justice,’ not to pass upon a defaulted constitutional claim presented
for federal habeas review." (quoting Francis v. Henderson, 425 U.S.
536, 538-39 (1976)).
Here, however, the procedural default doctrine does not apply. Vir-
ginia Code Annotated § 8.01-654.2 does not foreclose Virginia
review due to any failure to follow state procedures. Rather, as of the
April 29, 2003 effective date of the statute, the only condition neces-
sary to preclude Virginia’s consideration is that the death-sentenced
prisoner’s Virginia proceedings be complete. This does not create or
even suggest an intent to bar the claim for a procedural default. To
the contrary, the statute demonstrates Virginia’s decision to decline
her opportunity to first consider the Atkins claims of death-sentenced
prisoners with Hedrick’s procedural posture. The statutory language
specifically contemplates that those claims would be presented in fed-
eral court. With Hedrick’s claim thus exhausted by the choice of the
Virginia legislature, rather than by a procedural default, the comity
interests that would counsel against hearing Hedrick’s claim are not
implicated.
The majority’s analysis goes astray in construing a procedural
default out of Virginia’s statute authorizing only a single habeas peti-
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tion filed within sixty days of the resolution of the individual’s direct
appeal. The majority reasons that Hedrick’s failure to seek leave from
the Supreme Court of Virginia to amend his petition under Rule 1:8
constituted a default under this law. However, I believe that the
Supreme Court of Virginia would apply—as I have done above—
§ 8.01-654.2, which specifically addresses the procedures for raising
Atkins claims. See Guidry v. Sheet Metal Workers Nat’l Pension
Fund, 493 U.S. 365, 375-76 ("It is an elementary tenet of statutory
construction that ‘[w]here there is no clear intention otherwise, a spe-
cific statute will not be controlled or nullified by a general one . . . .’"
(quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974))). Hedrick
is a "person sentenced to death before April 29, 2003" who seeks to
present a "claim of mental retardation." See Va. Code Ann. § 8.01-
654.2. As such, § 8.01-654.2 is the provision of the law specifically
applicable to him. This provision on its own plainly forecloses review
in Hedrick’s particular circumstance. We need not speculate, as the
majority does, about the applicability of the single habeas petition
statute or any other Virginia law.
In addition, even following the strained reasoning of the majority,
I would not conclude that Hedrick’s failure to seek leave to amend his
petition under Rule 1:8 constituted a federally cognizable default. Vir-
ginia’s legislative response to Atkins belies the notion that seeking
leave to amend through Rule 1:8 is required to avoid default in these
circumstances. Specifically, through § 8.01-654.2, an individual
whose habeas petition is still pending as of April 29, 2003, may raise
a mental retardation claim as a matter of right without regard to any
earlier failure to seek leave to amend his petition under Rule 1:8. See
Va. Code Ann. 8.01-654.2. Thus, § 8.01-654.2 faults no death-
sentenced prisoner for failing to attempt to raise a claim of mental
retardation between the June 20, 2002 decision date of Atkins and the
April 29, 2003 effective date of the statute. The fact that the Virginia
General Assembly created this new procedure to add mental retarda-
tion claims suggests that the legislature did not expect that petitioners
would have already used Rule 1:8 for that purpose, let alone that the
General Assembly had any intent to penalize them for failing to
employ it. The majority’s approach is therefore inconsistent with Vir-
ginia’s treatment of other Atkins claimants whose petitions were
pending when Atkins was decided.
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For these reasons, I would hold that Hedrick’s Atkins claim is
exhausted, but not defaulted. As such, there is no doctrine that pre-
cludes federal review. To the contrary, Virginia has indicated that
such claims should be heard and that federal court is the appropriate
forum. We thus best respect Virginia law and the interests of justice
by reaching the merits of Hedrick’s claim. Therefore, I respectfully
dissent from the majority’s conclusion that Hedrick’s Atkins claim is
procedurally barred.
B.
In the alternative, the majority holds that Hedrick’s claim that he
is mentally retarded fails because he has not met his evidentiary bur-
den on the merits. Because of the recent decision in Walton v. John-
son, No. 04-19, 2006 WL 561492 (4th Cir. March 9, 2006) (en banc),
I must concur that Hedrick’s claim must be dismissed. I am con-
cerned, however, that this precedent prevents potentially viable claims
from development and consideration in federal court.
Under Walton, it is not enough for a petitioner claiming that he is
mentally retarded to produce an IQ score that is within the standard
error of measurement of scores indicative of mental retardation. See
id. at *13. Rather, the petitioner must support his allegation with a
mental health expert’s opinion that the standard error of measurement
should be applied to lower his IQ score. See id. Thus, even where a
petitioner has had no opportunity to develop the factual basis for his
claim in state court, he must marshal expert support for an apparently
viable claim even at the motion to dismiss stage.
I concurred with the dissent in Walton in finding no basis in Vir-
ginia law or elsewhere for this heightened evidentiary hurdle. See id.
at *25 n.5 (Wilkins, C.J., dissenting) (dissenting for the reasons stated
in Judge Motz’s panel opinion in Walton v. Johnson, 407 F.3d 285,
294-97 (4th Cir. 2005)). In addition, Hedrick’s case illustrates my
concern with the Walton rule. Hedrick’s IQ score of 76 is the same
score received by the Virginia petitioner in Walker v. True, 399 F.3d
315, 322 (4th Cir. 2005). In Walker, we recognized that an IQ score
of 76 can support a claim of mental retardation and therefore ordered
an evidentiary hearing. Id. at 322-23. In that case, the petitioner had
produced expert opinions stating that the standard error of measure-
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ment and the Flynn Effect should apply to lower his score to 70 or
below. Id. Here, Hedrick requested expert assistance and an evidenti-
ary hearing in his petition to the district court to similarly support and
develop his claim, but has received neither.3 As a result, Hedrick has
not yet been able to proffer an appropriate level of manipulation
based on the standard error of measurement, or yet been able to deter-
mine the applicability of the Flynn Effect, which could reduce his IQ
score to 70 or below.
Because Hedrick has not produced expert support at this stage,
Walton requires that Hedrick’s claim be dismissed. Although I am
bound by this precedent, I find it troubling that despite the fact that
Walker and Hedrick are from the same state and have the same IQ,
Hedrick’s allegations of mental retardation are found to lack merit
essentially for his failure to prove them at this stage. Hedrick seeks
only to develop and be heard on what is, under Walker, a demonstra-
bly colorable claim. The potential exists for great and irreversible
harm in denying him that opportunity, for in death penalty cases, the
results of such decisions are final.
Under Walker, it is clear that Hedrick could be mentally retarded.
As a result of today’s decision, we allow the execution of a man
whose death sentence might be unconstitutional without a full and fair
consideration of his claim. Although the manifest unfairness of this
result gives me great concern, I am bound by Walton to concur in the
judgment.
3Section 848(q) of Title 21 of the U.S. Code provides that in capital
habeas cases, the court may authorize investigative and expert services
that are "reasonably necessary for the representation of the defendant"
and order the payment of fees and expenses therefor. 21 U.S.C.
848(q)(9). Likewise, Virginia law would require court appointment of a
qualified expert to assess whether or not the defendant is mentally
retarded where a defendant with a non-frivolous mental retardation claim
is unable to afford such expert assistance. Va. Code Ann. 19.2-264.3:1.2.
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