Derek Rocco Barnabei v. RONALD J. ANGELONE, Director, Virginia Department of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DEREK ROCCO BARNABEI,
Petitioner-Appellant,
v.
No. 99-16
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-98-82-3)
Argued: April 6, 2000
Decided: June 5, 2000
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkinson and Senior Judge Hamilton joined.
_________________________________________________________________
COUNSEL
ARGUED: Linda Ceilia Goldstein, COVINGTON & BURLING,
New York, New York, for Appellant. Robert H. Anderson, III, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee. ON BRIEF: Sean Hecker, COV-
INGTON & BURLING, New York, New York; Timothy C. Hester,

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Seth A. Tucker, Amy L. Levine, Gerard N. Magliocca, Keith L. Lie-
berthal, COVINGTON & BURLING, Washington, D.C., for Appel-
lant. Mark L. Earley, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
On June 14, 1995, a Virginia jury convicted Derek R. Barnabei of
raping and murdering Sarah Wisnosky, a 17-year-old student at Old
Dominion University. The following day, the same jury sentenced
Barnabei to death. After exhausting his state remedies, Barnabei filed
a petition for federal habeas relief, which the district court dismissed.
We deny Barnabei's request for a certificate of appealability and
affirm the dismissal of the petition.
I.
On Barnabei's direct appeal from his conviction, the Supreme
Court of Virginia described the facts of this case:
On September 22, 1993, shortly after 6:00 p.m., Wisnosky's
nude body was discovered floating in the Lafayette River,
in the City of Norfolk. Nearby, the police found a leather
shoe, later identified as Wisnosky's, on one of the steps
leading down to the river. The police also found a wash-
cloth, which appeared to be bloodstained.
An autopsy, performed by a state deputy medical examiner,
revealed that Wisnosky had sustained at least 10 severe
blows to the back and right side of her head, fracturing her
skull. The blows had been inflicted by a heavy, blunt object,
such as a ball peen hammer.
The autopsy further revealed that Wisnosky had sustained
bruising to her abdomen, which the examiner testified could
have been caused by a blow to Wisnosky's abdomen or by
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the assailant's kneeling on her "to hold [her] in place." Wis-
nosky also had sustained bruises to her neck and larynx, and
petechiae were found on her face which, according to the
medical examiner, were "a manifestation of mechanical
asphyxia." These findings suggested to the examiner that
Wisnosky had been "manually strangled."
Additionally, the medical examiner found bruising on the
introitus of Wisnosky's vagina and a half-inch tear of her
anal opening. The examiner opined that the bruising had
been sustained prior to Wisnosky's death and that the anal
tear had been inflicted "very close to the time of her death."
The examiner also opined that such a tear is usually caused
by "forcible stretching."
The examiner further opined that Wisnosky's death was not
caused by drowning although a "little fluid" was found in
her lungs. He, however, could not rule out the possibility
that Wisnosky may not have been dead when her body was
put into the water. The "primary cause" of Wisnosky's
death, according to the medical examiner, was the head inju-
ries. The mechanical asphyxia was a contributing factor.
Wisnosky was a 17-year-old Caucasian and a student in her
first year at Old Dominion University (ODU). Nicki Van-
belkum, Wisnosky's dormitory roommate, last saw Wis-
nosky alive on the afternoon of September 21, 1993.
Vanbelkum and Wisnosky had planned to meet later that
day, but Wisnosky did not appear.
Barnabei, also a Caucasian, first arrived in the Norfolk-
Virginia Beach area in August 1993. He identified himself
to others as "Serafino" or "Serf" Barnabei and claimed to
have been a member of the Tau Kappa Epsilon (TKE) fra-
ternity at Rutgers University. Soon thereafter, Barnabei
began to associate with members of TKE at ODU. He rented
a room in a house that was occupied by four other young
men, who were either past or present students at ODU.
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Barnabei became acquainted with Wisnosky, and the two
attended a number of functions at the rooming house. On
several occasions, Wisnosky spent the night with Barnabei.
On one of those occasions, Wisnosky and Vanbelkum went
to Barnabei's rooming house for a "toga party," conducted
by the TKE fraternity. Wisnosky became intoxicated and
refused to leave the party with Vanbelkum. Barnabei
appeared to shun Wisnosky throughout the party, and he
told Thomas Walton, a TKE member, to "keep [Wisnosky]
away from him because he was trying to hook up with
someone else." Walton and Daniel Paul Wilson, another stu-
dent, kept Wisnosky company on the front porch of the
house. When Walton and Wilson asked Wisnosky about her
relationship with Barnabei, she remarked, "He is all right,
but I have had better." About 5:00 a.m., Walton left Wis-
nosky asleep in Barnabei's bed, and, later that morning,
Wisnosky returned to her dormitory room without incident.
The following day at a fraternity meeting, when Barnabei
"was bragging about his sex life" and Walton told those in
attendance about Wisnosky's remark, Barnabei became agi-
tated. When those present began to laugh and tease him, he
denied that he had had sexual intercourse with Wisnosky,
stating that they had had only oral sex.
On September 22, 1993, about 1:00 a.m., William Rolland
Gee, III, a TKE pledge, drove Barnabei from a TKE pledge
meeting to Barnabei's rooming house. Wisnosky was in
Barnabei's room when Gee departed about 45 minutes later.
Sometime in the early hours of September 22, Michael
Christopher Bain, who lived in the bedroom directly above
Barnabei's, began hearing very loud music emanating from
Barnabei's room. Bain first stomped on the floor in an
unsuccessful effort to get Barnabei to reduce the volume of
the music. Bain and David Wirth, another roomer in the
house, then went downstairs. They pounded on Barnabei's
door for about five minutes, but no one answered, and they
tried to open the door, but it was locked.
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Meanwhile, Troy Manglicmot, another occupant of the
house, was suddenly awakened when Barnabei rushed into
his room. Speaking in a "strong, forceful tone," Barnabei
demanded that Manglicmot move his vehicle because it was
blocking Barnabei's car in the driveway next to the house.
Barnabei took Manglicmot's car keys, but he could not start
the vehicle. Manglicmot then moved his vehicle, and Barna-
bei began to back his car out of the driveway. After striking
the side of the house next door and nearly colliding with
Manglicmot's vehicle and Wirth's truck, Barnabei"pulled
out real fast" onto the street and drove away.
That same morning, about 2:30 a.m., Justin Dewall, another
roomer in the house, returned to the house and was unable
to find his dog. In the course of looking through the house
for the dog, he knocked on Barnabei's door. When Barnabei
opened the door slightly, Dewall observed that Barnabei
was "stark naked" and that Barnabei's face was expression-
less. Barnabei appeared "wide-eyed, open-mouthed, and he
wasn't focusing on [Dewall] when he was looking at [him]."
When Wirth left the house about 7:30 that morning, he saw
Barnabei asleep on a couch in the living room. Wirth asked
Barnabei why he was not sleeping in his room, and Barnabei
responded that "it was a long, f___ed-up story." As Wirth
walked to his truck, he found a shoe near the rear of Barna-
bei's car. Wirth threw the shoe, which was later identified
as belonging to Wisnosky, toward the back porch.
About 9:30 a.m., Barnabei telephoned Eric Scott Anderson,
another TKE pledge, and asked Anderson to bring him a
blanket. When Anderson arrived at Barnabei's door, he
noticed that Barnabei's waterbed, unlike on a past occasion,
had no bed sheets.
In the early afternoon of September 22, Barnabei was seen
by Dewall's girlfriend carrying a duffle bag and a surfboard
from his bedroom. About 2:45 that afternoon, Barnabei
offered Richard Patton, a TKE pledge, a ride to a fraternity
sporting event. Before departing, Barnabei told Patton that
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he had been carrying a surfboard in his car and asked if Pat-
ton could take it to his room "because he was tired of carry-
ing it around in his car." Patton took the surfboard to his
room and put it in a closet. Upon leaving in Barnabei's car,
Patton noticed "a really bad smell." Barnabei told him that
the smell probably came from his "bag of laundry," a large,
closed duffle bag, in the backseat of the car. Also during
that afternoon, Barnabei borrowed, or tried to borrow,
money from Patton and others.
About 5:30 or 6:00 p.m., he called Anderson and asked if
Anderson had "heard anything." When Anderson inquired as
to what Barnabei was referring, Barnabei replied,"[L]ike,
oh, nothing." Barnabei then stated that he was"going away
for a couple days to work with [his] dad." Barnabei went to
Towson, Maryland and later to Ohio, where he was arrested
in December 1993.
On September 23, several police officers went to Barnabei's
rooming house, where they recovered Wisnosky's other
shoe, which appeared to be bloodstained. They also recov-
ered a pair of white socks from atop a trash can beside the
house and a towel from the rear of the house next door. The
towel exhibited dark red stains.
After interviewing the occupants of the house, the police
obtained a search warrant and proceeded to search Barna-
bei's room, which "appeared to have been abandoned." The
police found stains on Barnabei's waterbed and on one of
the bedroom walls, and a damp, red stain was discovered
beneath a carpet. Stains also were found on the surfboard
which was retrieved from Patton's bedroom. In addition, the
police recovered a handwritten note which stated,"Women
just don't get it."
A state forensic serologist found sperm on Wisnosky's vagi-
nal swabs. She also found blood underneath Wisnosky's fin-
gernails, on one of her shoes, on the surfboard, and on the
washcloth and towel, and hairs and fibers on the socks,
towel, and washcloth.
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A state DNA analyst conducted an RFLP DNA analysis of
various samples. She testified that blood recovered from the
waterbed frame matched that of Wisnosky and that the
chances were one in 202,000 that the blood came from a
Caucasian other than Wisnosky. She also stated that the
chances were one in 972 million that Barnabei did not con-
tribute the sperm found on the vaginal swabs. The analyst
also determined that the stain found under the carpet in
Barnabei's room was human blood.
Another DNA analyst conducted a PCR DNA analysis of
various samples. She determined that the blood recovered
from the surfboard, shoe, wall, and waterbed was consistent
with Wisnosky's blood type. She testified that only 3.9 per-
cent of the Caucasian population has the "HLA DQ type"
found in these samples. She also stated that the sperm frac-
tion recovered from the vaginal swabs was consistent with
Barnabei's blood type and that only 1.9 percent of the Cau-
casian population has the HLA DQ type found in this sam-
ple.
An expert on hair and fiber analysis determined that the
socks recovered contained four pubic hairs. These hairs
were similar to samples taken from Wisnosky and dissimilar
to Barnabei's samples "in all identifiable microscopic char-
acteristics."
Barnabei v. Commonwealth, 477 S.E.2d 270, 272-75 (Va. 1996)
(footnotes omitted).
The Supreme Court of Virginia upheld Barnabei's conviction and
sentence on direct appeal and denied Barnabei's petition for rehear-
ing. After the Supreme Court of the United States denied Barnabei's
petition for a writ of certiorari, Barnabei v. Virginia, 520 U.S. 1224
(1997), Barnabei filed for state habeas relief. In a summary order, the
Supreme Court of Virginia dismissed that petition, finding certain of
Barnabei's claims to be procedurally defaulted and others to be with-
out merit.
Barnabei then petitioned the district court for federal habeas relief,
challenging his conviction and sentence on numerous grounds. The
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district court considered most of Barnabei's claims on the merits,
including those that the Supreme Court of Virginia had found to be
procedurally barred under the rule of Hawks v. Cox, 175 S.E.2d 271
(Va. 1970) (previous determination on an issue by either state or fed-
eral court will be considered conclusive when issue is raised on state
habeas). The district court deemed the remainder of Barnabei's claims
to be procedurally defaulted under the rule of Slayton v. Parrigan,
205 S.E.2d 680 (Va. 1974) (arguments not raised at trial and on direct
appeal cannot be raised for first time on habeas review). Finding that
Barnabei could not show cause for these defaults, and rejecting his
other challenges on the merits, the district court dismissed the peti-
tion.
On appeal, Barnabei raises five challenges to his conviction and
sentence in state court. First, Barnabei contends that he was denied
effective assistance at trial by his counsel's failure to contest thor-
oughly the Commonwealth's forensic evidence of rape. Second, he
maintains that he was denied effective assistance by his counsel's fail-
ure to object to the verdict form with which the jury sentenced him
to death. Third, he argues that the "vileness" aggravating factor for
which a Virginia jury can impose a sentence of death is unconstitu-
tionally vague. Fourth, he asserts that the admission of testimony by
his ex-wife during the penalty phase violated his right to due process.
Fifth, Barnabei contends that the trial court was constitutionally
required to inform the jury that a life sentence would have rendered
him ineligible for parole for twenty-five years. Barnabei also argues
that the district court abused its discretion in refusing to order forensic
testing of certain evidence, and that the district court applied an incor-
rect standard of review in evaluating his claims. We consider each
argument in turn, beginning with the challenge to the standard of
review.
II.
Under 28 U.S.C. § 2254(d) (1994 & Supp. IV 1998), as amended
by the Antiterrorism and Effective Death Penalty Act (AEDPA), a
federal court may grant an application for habeas relief on a claim that
was previously adjudicated on the merits in state court only if that
adjudication "(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal
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law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State court
proceeding."
The Supreme Court recently explained that the requirement that the
state court's application of federal law have been"unreasonable"
means that it must have been more than merely "incorrect" in the esti-
mation of the federal habeas court. See Williams v. Taylor, 120 S. Ct.
1495, 1521-22 (2000).* The Court emphasized, however, that the
"unreasonable application" inquiry is an analysis of the objective rea-
sonableness of the state court's application of clearly established fed-
eral law. See id. at 1521. "The federal habeas court should not
transform the inquiry into a subjective one by resting its determina-
tion instead on the simple fact that at least one of the Nation's jurists
has applied the relevant federal law in the same manner the state court
did in the habeas petitioner's case." Id. at 1521-22.
Barnabei argues that, because the Supreme Court of Virginia cited
little federal law in its rejection of his claims on direct appeal and no
federal law in its summary order on state habeas, the district court
should have reviewed his federal habeas claims under a de novo stan-
dard of review. We have previously recognized that the deferential
standard of review mandated by § 2254(d), as amended, cannot easily
be applied when, as for many of the claims raised by Barnabei here,
"`there is no indication of how the state court applied federal law to
the facts of a case.'" Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.
1999) (quoting Cardwell v. Netherland, 971 F. Supp. 997, 1015 (E.D.
Va. 1997)). On such claims, we have held, the federal habeas court
"must independently ascertain whether the record reveals a violation"
of the petitioner's constitutional rights. Id.
Nonetheless, we have consistently recognized that even a perfunc-
tory state court decision constitutes an adjudication "on the merits"
for purposes of federal habeas review. See, e.g. , Wright v. Angelone,
_________________________________________________________________
*The parties have moved to file various supplemental memoranda to
address Williams, which was issued after oral argument in this case, and
other matters. We grant their motions and have considered all of their
supplemental memoranda.
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151 F.3d 151, 156-57 (4th Cir. 1998). Thus, in such instances, de
novo review by a federal habeas court remains inappropriate under
§ 2254(d). See, e.g., Weeks v. Angelone, 176 F.3d 249, 259 (4th Cir.
1999).
Here, we find that the district court, by carefully reviewing each of
Barnabei's claims, fulfilled its obligation under Cardwell and our
other precedents. The district court "independently ascertain[ed]
whether the record reveals a violation" of Barnabei's rights. Cardwell,
152 F.3d at 339. Although the district court misquoted Cardwell when
it described the difference between de novo review and the "reason-
ableness" standard mandated by § 2254(d) as"less significant," rather
than "insignificant," when "there is no indication of how the state
court applied federal law," id., we have no hesitation in concluding
that the district court struck the proper balance--recognizing the legal
effect of the prior state court adjudication while independently
reviewing the issues raised. The district court carefully considered
both the factual and legal bases for Barnabei's claims while recogniz-
ing the constraints on its authority imposed by§ 2254(d).
III.
In his principal argument to this court, Barnabei maintains that he
was denied his Sixth Amendment right to effective assistance of
counsel by his trial counsel's failure to present medical evidence that
assertedly would have rendered the Commonwealth's evidence of
rape significantly less compelling. Specifically, Barnabei argues that
his trial counsel should have presented evidence that a vaginal bruise,
like that apparently sustained by Ms. Wisnosky prior to her death, can
occur as a result of consensual sex and other, non-sexual, activities.
Barnabei also argues that his trial counsel should have presented evi-
dence contesting the finding of a vaginal bruise in the Common-
wealth's forensic examination. The evidence surrounding the vaginal
bruise holds special significance here, because Barnabei's capital
murder conviction, and thus his eligibility for the death penalty, is
predicated on the jury's finding that he murdered Sarah Wisnosky
during the commission of rape. See Va. Code Ann. § 18.2-31(5)
(Michie Supp. 1999).
We review a claim of ineffective assistance of counsel under the
two-prong standard set forth in Strickland v. Washington, 466 U.S.
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668 (1984). To prevail, Barnabei must show that"(1) his counsel's
performance fell below an objective standard of reasonableness in
light of the prevailing professional norms, and (2)`there is a reason-
able probability that but for counsel's unprofessional errors, the result
of the proceeding would have been different.'" Bell v. Evatt, 72 F.3d
421, 427 (4th Cir. 1995) (quoting Strickland, 466 U.S. at 694).
Barnabei cites two medical texts, several studies, and the affidavits
of two physicians, all indicating that the occurrence of a vaginal con-
tusion may be as consistent with consensual sex as with rape, and that
such contusions can be caused by other activities as well. See Brief
of Appellant at 21-24. One of these physicians opines in his affidavit
that even the existence of a contusion could not be presumed from the
Commonwealth's evidence without further forensic testing. See id. at
24.
Barnabei argues that trial counsel's failure to consult medical texts
and experts was both objectively unreasonable and prejudicial under
Strickland. According to Barnabei, if counsel had reviewed the medi-
cal literature, he would have conducted a more effective cross-
examination of the Commonwealth's principal witness on the forensic
evidence, Dr. Faruk Presswalla; he would have decided to present
independent evidence rebutting Dr. Presswalla's conclusions; and he
might have been able to formulate a proffer sufficient to convince the
trial court to appoint a defense expert.
The district court found that trial counsel's decision not to investi-
gate Dr. Presswalla's medical findings was "unreasonable" under Str-
ickland. The court concluded, however, that Barnabei could not
demonstrate that he was prejudiced by counsel's deficient perfor-
mance and therefore could not make the required showing under Str-
ickland's second prong. Assuming, without deciding, that the district
court correctly found that trial counsel's performance was unreason-
able, we agree with the district court that Barnabei cannot show preju-
dice under the second prong of Strickland.
The evidence presented at trial, taken as a whole, admits of no real
uncertainty on the question of whether Barnabei raped Sarah Wis-
nosky. This evidence included not only the vaginal bruise, but the
anal tear incurred by Ms. Wisnosky, expert testimony that the anal
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tear occurred close to the time of her death, testimony that Ms. Wis-
nosky was seen in Barnabei's room shortly before 2:00 a.m. on the
night of her murder, forensic evidence that Ms. Winosky's blood
matched that found on Barnabei's waterbed frame, the presence of
Barnabei's semen in vaginal swabs taken from Ms. Wisnosky's body,
and Barnabei's own admission that he had had sex with Ms. Wis-
nosky on the night of her death. Furthermore, as the Commonwealth
argues, the jury could well view Ms. Wisnosky's murder and the bru-
tality of that murder as fatally undermining Barnabei's claim that his
sexual contact with Ms. Wisnosky shortly before her murder was con-
sensual. Although Barnabei apparently maintains his complete inno-
cence, he raises no challenge here to the jury's determination that he
committed the brutal murder.
Barnabei essentially asks us to view each piece of evidence in iso-
lation. Placing special emphasis on the vaginal bruise, Barnabei con-
tends that each item of evidence, considered independently, could
plausibly be consistent with consensual sex, rather than rape.
The evidence cannot be approached in this way. It is possible that
a woman could incur a vaginal bruise during consensual sex, or from
some other cause. It is possible that a woman could incur an anal tear
shortly before she was brutally murdered but not have been vaginally
raped around the same time. It is possible, too, that she could have
consensual sex with a partner who, all the evidence indicates, brutally
murdered her shortly thereafter. And it is possible that the victim's
blood could be found on the convicted murderer's bed, and that the
murderer's semen could appear in a vaginal swab taken from her dead
body, without a rape having occurred. However, we cannot accept
Barnabei's contention that all of these extraordinarily unlikely cir-
cumstances converged in this case. Taken together, the evidence
points overwhelmingly to Barnabei's guilt on both rape and murder
charges.
We also note, as did the district court, that Barnabei's trial counsel
was able to elicit on cross-examination a concession from Dr. Pressw-
alla that a vaginal bruise could be consistent with other causes aside
from nonconsensual sex. This further weakens Barnabei's claim that
he was prejudiced by counsel's failure to conduct an adequate cross-
examination.
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In view of all of the above, we conclude that Barnabei was not
prejudiced by trial counsel's performance in contesting the Common-
wealth's forensic and DNA evidence of rape.
IV.
Barnabei next argues that he was denied effective assistance at trial
by his counsel's failure to object to the verdict form with which the
jury sentenced him to death.
In Virginia, a defendant may be sentenced to death if the Common-
wealth proves beyond a reasonable doubt the existence of one of two
aggravating factors--either "a probability . . . that he [the defendant]
would commit criminal acts of violence that would constitute a con-
tinuing serious threat to society, or that his conduct in committing the
offense was outrageously or wantonly vile, horrible or inhuman, in
that it involved torture, depravity of mind or aggravated battery to the
victim." Va. Code Ann. § 19.2-264.4(C) (Michie Supp. 1999). In
Barnabei's trial, the jury submitted its verdict in the penalty phase
using a verdict form stating that it had unanimously found the first
aggravating factor (future dangerousness) "and/or" the second aggra-
vating factor (vileness). Barnabei contends that the use of the con-
junction "and/or" permitted the jury to sentence him to death without
unanimity on either one of the two aggravating factors. He maintains
that his counsel was prejudicially ineffective for failing to object to
the wording of the "and/or" verdict form.
Barnabei's underlying contention, that he is entitled to juror una-
nimity on a specific aggravating factor before being sentenced to
death, appears to be based entirely on state law. See Reply Brief at
22-25 (citing the Virginia Constitution and Virginia cases). The
Supreme Court of Virginia, on state habeas review, found "no merit"
in Barnabei's contention that counsel's failure to object to the verdict
form amounted to ineffective assistance of counsel. Thus, Barnabei's
argument here essentially asks this court to reverse the Supreme Court
of Virginia on the question of whether it was objectively unreasonable
for an attorney in Virginia to fail to make an objection based purely
on Virginia law. We think that this is an issue on which our deference
to the state court should be at its zenith.
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Moreover, even if we were permitted to consider the question de
novo, and as a federal habeas court we are not, Virginia precedent
does not appear to support Barnabei's claim. Rather, it appears that
the Supreme Court of Virginia has previously condoned the use of an
"and/or" verdict form like the one in this case and declined to over-
turn a death sentence when it could not be determined with certainty
whether the jury unanimously agreed on either of the two aggravating
factors. See Turner v. Commonwealth, 273 S.E.2d 36, 45 n.12 (Va.
1980) (finding no prejudicial error, but noting that"it would accord
with better practice to determine with certainty the basis for the jury's
sentence").
Thus we can only conclude that Barnabei's trial counsel was not
ineffective under Strickland for failing to object to the "and/or" ver-
dict form under Virginia law.
V.
Barnabei contends that the second of the above-quoted aggravating
factors under which a death sentence may be imposed--the "vileness"
aggravator--is unconstitutionally vague. We have rejected constitu-
tional challenges to Virginia's "vileness" aggravator on several occa-
sions. See Breard v. Pruett, 134 F.3d 615, 621 (4th Cir. 1998);
Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996); Tuggle v.
Thompson, 57 F.3d 1356, 1371-74 (4th Cir.), rev'd on other grounds,
516 U.S. 10 (1995). These recent precedents require rejection of
Barnabei's similar challenge.
VI.
Barnabei asserts that he was denied due process during the penalty
phase of his trial when his ex-wife Paula Barto testified that, on one
occasion, Barnabei attempted to force her to have anal sex with him.
Barnabei had asked the prosecution to provide notice of any evidence
of unadjudicated criminal conduct that it might offer, and the prosecu-
tion, in providing that notice three weeks before trial, described "a
continuous course of threatening and assaultive conduct against the
former Paula Argenio Barnabei." Barnabei's claim appears to be
based in part on unfair surprise, and in part on a theory of misrepre-
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sentation by the prosecution. See Gray v. Netherland, 518 U.S. 152,
162 (1996).
We do not agree with the Commonwealth that Barnabei procedur-
ally defaulted this claim. Barnabei's trial counsel lodged a strenuous
and contemporaneous objection to Barto's testimony, noting with
skepticism that Barto's account of attempted forcible anal intercourse
"just happens to fit neatly into the proof they produced at the time of
the trial." Barnabei's counsel asked the trial judge to strike the testi-
mony and to declare a mistrial. The Commonwealth urges us to view
the objection as having been based solely on state law, but the tran-
script indicates an objection going to the fundamental fairness of the
admission of Barto's testimony. We are not barred from considering
this argument simply because trial counsel, acting on the spur of the
moment, did not cite a particular constitutional provision. We note
that in assigning error on direct appeal, Barnabei explicitly linked the
admission of Barto's testimony to a violation of his federal constitu-
tional rights, and the Supreme Court of Virginia rejected the argument
on the merits, albeit without citing federal law. Under these circum-
stances, it is appropriate to consider Barnabei's argument on the mer-
its.
Having done so, however, we must conclude that Barnabei cannot
prevail. On his claim of unfair surprise, Gray controls. In that case,
the habeas petitioner, who had been convicted and sentenced to death
for capital murder, asked that his sentence be vacated because, during
the penalty phase, the prosecution had introduced crime scene and
medical evidence linking the defendant to an earlier, unsolved double
murder. Gray, 518 U.S. at 156-57. The prosecution had previously
assured petitioner's counsel that it would introduce only testimony,
but not other sorts of evidence, regarding the earlier murders. Id. The
Supreme Court held that the petitioner's claim was barred by the
"new rule" doctrine enunciated in the plurality opinion in Teague v.
Lane, 489 U.S. 288, 309-10 (1989). Under this doctrine, "habeas
relief is appropriate only if `a state court considering [the petitioner's]
claim at the time his conviction became final would have felt com-
pelled by existing precedent to conclude that the rule [he] seeks was
required by the Constitution.'" Gray, 518 U.S. at 166 (quoting Saffle
v. Parks, 494 U.S. 484, 488 (1990)). The Court viewed Gray's argu-
ment as a claim "that due process requires that he receive more than
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a day's notice of the Commonwealth's evidence" and that "due pro-
cess required a continuance whether or not [the defendant] sought
one, or that, if he chose not to seek a continuance, exclusion was the
only appropriate remedy for the inadequate notice." Gray, 518 U.S.
at 167. The Court concluded that "only the adoption of a new consti-
tutional rule could establish these propositions." Id.
In so holding, the Court distinguished the principal case upon
which Barnabei relies, Gardner v. Florida, 430 U.S. 349 (1977). In
Gardner, the Court vacated a death sentence that had been imposed,
in part, on the basis of information in a presentence investigation
report to which the petitioner had been wholly denied access. The
Gray Court observed that, in Gardner, the petitioner "literally had no
opportunity to even see the confidential information, let alone contest
it. Petitioner in the present case, on the other hand, had the opportu-
nity to hear the testimony . . . in open court, and to cross-examine"
the witnesses who offered it. Gray, 518 U.S. at 168. The Court explic-
itly rejected as overly general the constitutional rule that the dissent
would have derived from Gardner and other cases--"that `a capital
defendant must be afforded a meaningful opportunity to explain or
deny the evidence introduced against him at sentencing.'" Id. at 169
(quoting id. at 180 (Ginsburg, J., dissenting)).
We recognize that there are certain factual differences between
Barnabei's situation and that of the petitioner in Gray. If we were to
accept Barnabei's contention that the Commonwealth's description of
"a continuous course of threatening and assaultive conduct" was
insufficient to put Barnabei on notice of Barto's testimony (despite
being offered three weeks before trial), then Barnabei effectively got
no notice at all, as opposed to the one day's notice afforded to the
petitioner in Gray. On the other hand, the evidence introduced in
Gray--that the petitioner had committed a notorious and brutal dou-
ble murder--was significantly more explosive than the evidence
introduced here.
Ultimately, we do not think these differences are sufficient to per-
mit us to disregard Gray. Barnabei asks us to vacate his sentence on
the basis of essentially the same constitutional rule urged upon the
Court in Gray. The Supreme Court clearly and unequivocally (albeit
by a narrow vote) refused to adopt such a rule in Gray. Barnabei
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points to no intervening precedent that would allow us to ignore
Gray's holding or that establishes that due process requires advance
notice of the specific evidence of unadjudicated conduct that the pros-
ecution intends to introduce during the penalty phase of trial proceed-
ings.
On Barnabei's misrepresentation claim, even if the record sup-
ported his suggestion of deliberate vagueness by the prosecution, we
would not vacate his sentence on these facts. Here, the Common-
wealth did provide Barnabei with notice that it would introduce evi-
dence of "a continuous course of threatening and assaultive conduct
against the former Paula Argenio Barnabei." We are aware of no
established constitutional rule that the prosecutor would have violated
had he known the specifics of Paula Barto's testimony and failed to
disclose them, however troubling such a practice might be. Such
deliberate vagueness would not be equivalent to the conduct of the
prosecutor in Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam),
cited by Barnabei. In that case, the prosecutor engaged in "deliberate
deception of court and jury" by knowingly introducing perjured testi-
mony at trial, and the Court found that the defendant's rights had been
infringed. Id. at 112. Mooney, therefore, does not provide a founda-
tion for Barnabei's argument. The facts, even as alleged by Barnabei,
do not support a finding of a constitutional violation based on pro-
secutorial misrepresentation.
VII.
Barnabei argues, based on Simmons v. South Carolina, 512 U.S.
154 (1994), that his due process and Eighth Amendment rights were
violated when the judge refused to instruct the jury that, if sentenced
to life imprisonment, Barnabei would not be eligible for parole for
twenty-five years. Under circuit precedent, a Simmons jury instruction
is required only when the defendant is parole ineligible. We have read
Simmons to apply only when the prosecution argued for the death
penalty on the basis of the defendant's "future dangerousness" and,
under state law, a life sentence for the defendant would be without
possibility of parole. See, e.g., Wilson v. Greene, 155 F.3d 396, 407-
08 (4th Cir. 1998). Because Barnabei would have been eligible for
parole in twenty-five years, circuit precedent dictates that the Sim-
mons rule does not apply in this case.
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VIII.
Barnabei contends that the district court abused its discretion by
refusing to order additional DNA and forensic testing. He also con-
tends that trial counsel was ineffective under Strickland for failing to
seek additional testing. Barnabei focuses particularly on the Com-
monwealth's failure to test the blood on the fingernail clippings taken
from Sarah Wisnosky--presumably the blood of her attacker. In vari-
ous pro se filings, Barnabei also maintains that "twenty some odd
hairs," a bloody pair of men's moccasins, and two bloody towels
should have been tested for DNA evidence and were not.
Under Rule 6(a) of the Rules Governing § 2254 Cases, a district
court has the discretion to order additional discovery in a § 2254 case
"for good cause shown." The district court did not abuse its discretion
in refusing to order the discovery requested here because Barnabei
has not met this required "good cause" standard. In the cases cited by
Barnabei, additional discovery would have offered compelling sup-
port for a credible alternative theory of the crime for which the peti-
tioner had been convicted. See Jones v. Wood, 114 F.3d 1002 (9th
Cir. 1997) (reversing denial of discovery of forensic evidence when
there was specific evidence linking another suspect to the murder);
Toney v. Gammon, 79 F.3d 693 (8th Cir. 1996) (reversing denial of
discovery of DNA evidence in rape case in which both the victim and
a nearby witness offered consistent physical descriptions of the
attacker that did not match the habeas petitioner). Barnabei can make
no such similar "good cause" showing.
We also find that Barnabei's trial counsel was not ineffective in
failing to seek additional forensic testing. The Commonwealth offered
a significant amount of forensic and DNA evidence at trial--all of it,
at least arguably, implicating Barnabei. We cannot conclude, under
these circumstances, that trial counsel's failure to seek additional test-
ing met the standard of ineffectiveness under Strickland. Thus Barna-
bei has stated no constitutional claim requiring additional DNA
testing.
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IX.
For the foregoing reasons, we deny the request for a certificate of
appealability and affirm the judgment of the district court dismissing
the petition for a writ of habeas corpus.
AFFIRMED
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