Michael D. Clagett v. RONALD ANGELONE, Director of the Virginia Department of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL D. CLAGETT,
Petitioner-Appellant,
v.
No. 99-20
RONALD ANGELONE, Director of the
Virginia Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CA-98-438-2)
Argued: January 25, 2000
Decided: April 5, 2000
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Dismissed by published opinion. Judge Luttig wrote the opinion, in
which Judge Widener and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Patrick Hugh O'Donnell, Norfolk, Virginia; Charles Rus-
sell Burke, Virginia Beach, Virginia, for Appellant. Pamela Anne
Rumpz, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Mark L.
Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.
_________________________________________________________________

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OPINION
LUTTIG, Circuit Judge:
A Virginia jury convicted Michael D. Clagett of five counts of cap-
ital murder and various other offenses, and returned a verdict of death
on each murder count. After appealing his convictions in state court
on direct review and in state habeas proceedings, Clagett filed a peti-
tion for writ of habeas corpus in federal court. See 28 U.S.C. § 2254.
The district court dismissed Clagett's petition, and he now appeals
that dismissal. Because he has failed to make a substantial showing
of the denial of a constitutional right, we deny his application for a
certificate of appealability and dismiss his petition for writ of habeas
corpus.
I.
The Virginia Supreme Court outlined the facts of the discovery of
the crime as follows:
Richard T. Reed, a regular patron, arrived at the Witch-
duck Inn (the Inn), a tavern and restaurant in Virginia
Beach, about midnight on June 30, 1994. Although the Inn
usually remained open until 2:00 a.m., Reed found that the
front door was locked. Reed could hear music playing
inside.
Although he knew that it would normally be kept locked,
Reed went to the rear door entrance to the Inn and found it
unlocked. Upon entering the Inn, he discovered the bodies
of Lam Van Son, the Inn's owner, Inn employees Wendell
Parish and Karen Sue Rounds, and Abdelaziz Gren, an Inn
patron. Each victim had been shot once in the head. The
Inn's cash register was open and empty.
Based upon information supplied by Denise Holsinger,
Clagett's girlfriend, Clagett was identified as a suspect in
the killings.
Clagett v. Commonwealth, 472 S.E.2d 263, 266 (Va. 1996).
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On July 1, 1994, Police Officer Donna Malcolm, responding to a
citizen call reporting that a man was "sleeping in the bushes," J.A. 27,
found Clagett "passed out" in bushes outside an apartment building
at which he did not reside. J.A. 440. At that time, approximately
11:33 p.m., Officer Malcolm noticed that Clagett smelled of alcohol,
was "a little bit unsteady on his feet," and had bloodshot eyes. J.A.
36. She arrested Clagett for public intoxication, he was taken into cus-
tody, and he was read his Miranda rights.
At the police station, Clagett was turned over to Detective Paul C.
Yoakum. Detective Yoakum began interviewing Clagett at 12:13 a.m.
on July 2, 1994. At this point Detective Yoakum noticed that Clagett
had bloodshot eyes, but Clagett's speech was not slurred and he did
not appear to have difficulty walking. Clagett informed Detective
Yoakum that he had only slept one hour in the previous forty-eight
hours. Detective Yoakum could smell alcohol on Clagett's person,
although he said that "[h]is body odor was stronger than the smell of
alcohol on him."
In the initial minutes of the two and a half hour interview with
Detective Yoakum, Clagett denied that he had been at the Witchduck
Inn on the night of the killings. He continued to deny that he had been
at the Inn after Detective Yoakum falsely told him that Navy men had
identified Clagett from a photo spread. However, having been told,
truthfully, that Holsinger had talked to the police about him, Clagett
began to refer to Holsinger as "little miss innocent" and commented
that she was probably going to "walk away" from the crimes after
having pointed the finger at him. Detective Yoakum then, in a ruse,
told Clagett that the Inn had security cameras and that the police
could place him at the Inn on the night of the murders.
Immediately after Detective Yoakum told Clagett about the secur-
ity cameras, Clagett repeated his request for a cigarette, and the
Detective left the room to find cigarettes for Clagett. When the Detec-
tive returned and before he asked another question of Clagett, Clagett
confessed to the killings:
You can fry me. Thats (sic) what I'm going to ask for when
we go to court. Fry me, I'm not gonna live. I don't want the
tax payers supporting me. I did it. Yeah I did it. I did it all.
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All by my f***ing self. Let that little c*** go free. I did it
all. I did it all buddy. And the worst thing was . .. Lam[,
the bar owner,] was my buddy . . . .
J.A. 162 (Taped Interview of Clagett, at 8).
Clagett then explained to Detective Yoakum that he planned the
robbery at the request of Holsinger, and that while Holsinger took
$400 from the cash register, he used a .357 Magnum to murder the
four individuals. He also described how and where he shot each of the
victims, explaining that he shot one victim in the forehead and the
other three victims in the back of the head.
The same day that Clagett confessed to Detective Yoakum and
while he was still in police custody, he confessed a second time to the
killings, but this time to a television news reporter. A reporter from
WTKR Channel 3 asked Clagett "Are you guilty of these charges?"
And Clagett replied: "Yes. I shot every one of them." J.A. 226-27.
A grand jury returned two indictments against Clagett on October
3, 1994: one charging him with robbery, use of a firearm in the com-
mission of a robbery, four counts of capital murder during the com-
mission of a robbery, and four counts of use of a firearm in the
commission of a murder; and the other indictment charging him with
one count of multiple homicide capital murder for killing all four
individuals as part of the same act or transaction.
On December 12, 1995, the Virginia Beach Circuit Court held a
hearing on Clagett's motion to suppress his videotaped confession to
Detective Yoakum. There were four grounds for the motion to sup-
press: lack of probable cause for the arrest for public intoxication;
Clagett's assertion of his right to counsel during the course of the
police interrogation; the use of misrepresentations by police to over-
bear Clagett's will; and the pretextual nature of the arrest for public
intoxication. The court denied the motion to suppress, finding that
there was probable cause for the arrest, that Clagett had not asserted
his rights to counsel and to remain silent, that Clagett's will was not
unlawfully overborne by police misrepresentations, and that the arrest
for public intoxication was not pretextual.
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During the jury trial which spanned ten days, the prosecution pres-
ented, in addition to the two videotaped confessions, the following
evidence. Clagett and Holsinger were seen with a gun on the day of
the killings. Police found a .357 Magnum in Clagett's home on the
morning of July 2, but a crime laboratory analyst was unable to match
bullet fragments from the Inn with the gun found in Clagett's home.
A medical examiner testified that only one victim was not shot in the
back of the head. After the killings, the cash register at the Inn was
empty. And when Clagett was arrested, he had $137.00 on his person.
Holsinger did not testify at trial.
The jury convicted Clagett of all charges in the two indictments.
A sentencing hearing was held on July 12 and 13, 1995. During the
hearing, the jury heard evidence that Clagett had a history of brutal
domestic violence against his former wife and of drug use, but that
he showed great remorse for the murders during his confession to
Detective Yoakum.
During deliberation on sentencing for the non-capital charges, the
jury requested further instruction on two issues:
(1) What does "life imprisonment" mean in the law as
relates to parole?
(2) Are the standing mandatory sentences to be served?
concurrently? consecutively?
J.A. 235 (note from jury to court). The court instructed the jury as fol-
lows:
The Court instructs the jury that you should impose such
punishment as you feel is just under the evidence and within
the instructions of the court. You are not to concern your-
selves with what may happen afterwards.
J.A. 234. The jury returned a verdict of five death sentences in the
capital charges on findings of future dangerousness and vileness, and
sentenced Clagett to forty-three years of imprisonment on the non-
capital charges. The trial court entered judgment on the jury verdict.
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The Virginia Supreme Court affirmed the individual capital murder
convictions and corresponding death sentences, but set aside the fifth
conviction for multiple homicide capital murder on double jeopardy
grounds. Clagett, 472 S.E.2d at 272-73. The United States Supreme
Court denied Clagett's petition for writ of certiorari. See Clagett v.
Virginia, 117 S. Ct. 972 (1997). Represented by new counsel, Clagett
then sought state habeas relief in the Virginia Supreme Court on April
18, 1997, and on December 15, 1997, the petition was dismissed.
The Circuit Court of Virginia Beach set Clagett's date of execution
for April 28, 1998.
Clagett then filed his federal habeas petition in the Eastern District
of Virginia, along with a motion for appointment of counsel and a
petition for stay of execution. On April 24, 1998, the district court
granted Clagett's petition for stay of execution and his motion for
appointment of counsel. On July 13, 1998, Clagett filed his formal
federal habeas petition. United States Magistrate Judge Miller thereaf-
ter filed a report and recommendation that all of Clagett's claims be
denied.
The state filed a motion to dismiss and the district court, adopting
the magistrate's recommendation, dismissed the petition. Clagett
sought reconsideration, but his motion was denied. Clagett now
appeals.
In the present appeal of the district court's dismissal of his federal
habeas petition, Clagett argues: (1) that the trial court erred in not
instructing the jury regarding his parole ineligibility; (2) that his post-
arrest confession to Detective Yoakum was involuntary, and (3) that
he was incapable of understanding his Miranda warnings because of
a combination of sleep deprivation, alcohol and/or drug use, and
deception by Detective Yoakum during the interrogation; and (4) that
his trial counsel was ineffective for failing to object to the admission
of the confession to Detective Yoakum for the reasons articulated in
(2) and (3). We address each claim below.
II.
Because Clagett filed his federal habeas petition after the effective
date of the Anti-terrorism and Effective Death Penalty Act's
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("AEDPA") enactment, the AEDPA amendments apply to Clagett's
petition. See Mueller v. Angelone, 181 F.3d 557, 565-69 (4th Cir.),
cert. denied, 120 S. Ct. 37 (1999).
In the present case, Clagett's claim that the trial court erred by not
instructing the jury on his parole eligibility was adjudicated on the
merits by the Virginia Supreme Court. See Clagett, 472 S.E.2d at 272.
Therefore, under the AEDPA, we are not permitted to grant habeas
relief unless the state adjudication on the merits"resulted in a deci-
sion that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C. § 2254(d). 1
During its sentencing deliberation on Clagett's non-capital convic-
tions, the jury asked the trial court in part "what does life imprison-
ment mean in the law as it relates to parole?" J.A. 235. The trial court
responded that the jury should "impose such punishment as [it felt
was] just under the evidence" and "not to concern [itself] with what
might happen afterwards." J.A. 234. Clagett objected that the jury
"should be instructed that the sentences run consecutively." J.A. 232.
Clagett argues before us that the trial court erred when it did not
provide the jury with a "Simmons instruction," after the jury asked for
clarification regarding parole. In Simmons v. South Carolina, 512
_________________________________________________________________
1 The Supreme Court heard argument this Term in Williams v. Taylor,
No. 98-8384, 1999 WL 813784 (U.S. Oct. 4) (transcript of argument), a
Fourth Circuit case in which the interpretation of section 2254(d)(1) is
at issue, and the opinion in Williams is still pending. We apply the inter-
pretation of section 2254(d)(1) adopted in both Williams v. Taylor, 163
F.3d 860 (4th Cir. 1998), cert. granted , 119 S. Ct. 1355 (1999), and
Green v. French, 143 F.3d 865, 870 (4th Cir. 1998), cert. denied, 119
S. Ct. 844 (1999) ("If a state court decision is in square conflict with a
precedent (supreme court) which is controlling as to law and fact, then
the writ . . . should issue; if no such controlling decision exists, the writ
should issue only if the state court's resolution of a question of pure law
rests upon an objectively unreasonable derivation of legal principles
from the relevant supreme court precedents, or if its decision rests upon
an objectively unreasonable application of established principles to new
facts."). But even if we were reviewing Clagett's claims under a de novo
standard, we would reach the same conclusions.
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U.S. 154 (1994), a plurality of the Supreme Court held that where
"the jury reasonably may have believed that petitioner could be
released on parole if he were not executed" because the trial court
refused to permit the defendant "to provide the jury with accurate
information regarding petitioner's parole ineligibility," and the state
argued "that petitioner would pose a future danger to society if he
were not executed," the state denied the petitioner due process. Id. at
161-62; see also Townes v. Murray, 68 F.3d 840, 851 (4th Cir. 1995)
(explaining that Simmons holds "only that, when the state puts a capi-
tal defendant's future dangerousness in issue, the trial court may not
both refuse a defendant's request that it instruct the jury on his parole
ineligibility and prevent defendant from arguing that same point to the
jury"), cert. denied, 516 U.S. 1100 (1996). Therefore, Clagett presum-
ably wished the jury to be instructed that he was ineligible for parole.2
Clagett also now argues that he was parole ineligible under Virginia's
three-strikes provision, see Va. Code § 53.1-151(B1) ("Any person
convicted of three separate felony offenses . . . when such offenses
were not part of a common act, transaction or scheme shall not be eli-
gible for parole."), because his four murders were not part of a com-
mon act.
The question before this court is whether Clagett was parole ineli-
gible. If he was not parole ineligible, then a Simmons instruction was
not required and the trial court did not err when it refused to provide
_________________________________________________________________
2 Simmons does not require that a jury be instructed on the effects of
parole for a parole-eligible defendant. See Wilson v. Greene, 155 F.3d
396, 407-08 (4th Cir. 1998) ("[Simmons] does not entitle a defendant to
an instruction about when they would become eligible for parole."
(emphasis added)). To the extent Clagett is arguing that the jury should
have been given a Simmons instruction regarding his parole eligibility,
see Appellant's Br. at 22 ("[T]he correct instruction to the jury following
their inquiry would have been to instruct them that Clagett would not be
eligible for parole, . . . or at best, may be eligible for parole only after
serving thirty years . . . ."), such an extension of Simmons would consti-
tute a new rule not applicable to his case. We also could not say that the
Virginia Supreme Court's decision that a Simmons instruction is not
required when the defendant is parole eligible was"contrary to, or
involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d).
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such an instruction. The Virginia Supreme Court on direct review
held that Simmons was inapplicable because"Clagett failed to estab-
lish and the record does not show that he was parole ineligible." Cla-
gett, 472 S.E.2d at 272. The district court held that the Virginia
Supreme Court's finding that Clagett failed to establish that he was
parole ineligible was not an "unreasonable determination of the facts."
See 28 U.S.C. § 2254(d)(2). As the district court explained, "[w]hile
[Clagett] was convicted of over three separate felony offenses of mur-
der, it is not unreasonable to conclude that the murders were . . . `part
of a common act, transaction or scheme.'"
We agree with the district court that the Virginia Supreme Court's
finding that Clagett was not parole ineligible was not unreasonable.
Under Virginia's three-strikes provision, felony offenses that were
"part of a common act, transaction or scheme" do not count as sepa-
rate felony offenses. Va. Code § 53.1-151(B1). Clagett does not even
attempt to articulate how his murder of four individuals on the same
night within minutes of each other, in the same bar, during the same
robbery, with the same gun and the same accomplice, could be any-
thing but "part of a common act, transaction or scheme." And, given
the Virginia Supreme Court's decision in Fitzgerald v. Common-
wealth, 455 S.E.2d 506 (Va. 1995), Clagett's murders were clearly
part of a common act. In Fitzgerald, the defendant had kidnapped a
girl, then robbed and murdered her father, driven the girl to the woods
and raped her, then taken a taxi cab to a second woman's home after
killing the taxi cab driver, and had kidnapped and raped the second
woman after having taken her to a hotel. The Virginia Supreme Court
held that all of those crimes, although committed in different places
and over the course of many hours, were part of a common act for
purposes of the three-strikes provision.
We recognize that the United States Supreme Court has granted a
writ of certiorari in another Virginia capital case involving the Sim-
mons instruction, see Ramdass v. Angelone, 187 F.3d 396 (4th Cir.
1999), cert. granted in part, 120 S. Ct. 784 (2000). However, we are
satisfied that the disposition in that case will not alter our conclusion
here. In Ramdass, at the time the jury was deliberating in the sentenc-
ing phase of his capital conviction for murder, Ramdass had been
convicted of and sentenced for one armed robbery. And, a jury had
returned a verdict finding Ramdass guilty in a second armed robbery,
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but the court had not yet entered judgment in that case. The trial court
did not instruct the jury as to Ramdass's parole ineligibility under
Virginia's three-strikes provision.
On remand from the Supreme Court after its decision in Simmons,
the Virginia Supreme Court held that although the first armed rob-
bery, and the murder conviction (which was the subject of the
appeal), were both predicate offenses for the three-strikes provision,
the second armed robbery verdict for which no judgment had yet been
entered was not a "conviction" under Virginia law and the three-
strikes provision. Therefore, at the time the Simmons-type instruction
was requested during jury deliberation on sentencing for the murder
conviction, Ramdass was not parole ineligible under Virginia law.
In federal habeas proceedings in this court, Ramdass argued that
this court should reject Virginia's technical determination of parole
ineligibility and adopt a pragmatic, common sense determination of
parole ineligibility for purposes of invoking the Simmons instruction.
See 187 F.3d at 405. This court, however, refused to adopt a func-
tional determination of parole ineligibility and deferred to the state
law understanding of parole ineligibility. See id. ("When Ramdass
argues that Simmons' applicability is not conditioned on `a state's
determination of "parole ineligibility" at the moment of capital sen-
tencing' but rather on a nonlegalistic `common-sense [im]possibility
of parole,' he advances a new interpretation of Simmons that is simply
incompatible with the logic of Simmons itself."). Additionally, this
court held that "parole eligibility is a question of state law and there-
fore is not cognizable on federal habeas review." Id. at 407.
The Supreme Court, then, will be reviewing two aspects of the
Ramdass decision: "Does the rule in Simmons turn on the actual oper-
ation of state law, or on its hypertechnical terms; and must a federal
habeas court adjudicating a Simmons claim make its own analysis of
the functional consequences of state law, or is it bound by the state
courts' characterization of state law for federal constitutional pur-
poses?" On the first question, in Clagett's case, there is no "hyper-
technical" interpretation of the three-strikes provision, and Clagett
makes no argument in this federal habeas proceeding that any reading
of Virginia parole law would have made him technically eligible but
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functionally ineligible for parole at the time the jury was deliberating
in the sentencing phase of his non-capital charges. 3
Likewise, as to the second question, whether this court can conduct
its own analysis of the functional consequences of state law, or is
bound by the state court's characterization of state law, Clagett has
not articulated how a federal court determination of the functional
consequences of Virginia state law could diverge in this case from the
state courts' characterization of that same state law. We are confident
that even if the Supreme Court were to hold that we must undertake
our own analysis of the functional consequences of state law, Cla-
gett's claim that he was parole ineligible would fail. As explained
above, Clagett's murder of the four people at the Witchduck Inn was
clearly a common act or transaction under Virginia's three-strikes
provision, particularly in light of Fitzgerald .
Therefore, the Virginia Supreme Court did not err in finding that
Clagett failed to show he was parole ineligible and thus in holding
that a Simmons instruction was unnecessary. We do not believe that
Clagett could, under any level of independent federal review, make
a colorable claim that his murders were not part of a common act.
Because Clagett was parole eligible, no Simmons instruction was
required.
III.
We now turn to Clagett's claims that his post-arrest confession to
Detective Yoakum was involuntary and that he was incapable of
understanding his Miranda warnings because of a combination of
sleep deprivation, alcohol and/or drug use, and deception by the
Detective during his interview of Clagett.
_________________________________________________________________
3 For instance, he does not argue that functionally, the forty-three years
of imprisonment for the non-capital crimes in conjunction with life
imprisonment (even if parole were technically allowed) would keep him
behind bars for the rest of his life. And, even if he had, certainly such
an argument based on actuarial tables is neither based on the "actual
operation of state law" nor based on a "hypertechnical" interpretation
thereof. Ramdass did not even argue that one should look beyond state
law on parole ineligibility altogether to determine whether "in reality" a
prisoner would never live long enough to enjoy the possibility of parole.
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Under 28 U.S.C. § 2254(b), a federal petitioner must generally
exhaust his claims in state court before bringing them to federal court
in a habeas petition. See Matthews v. Evatt, 105 F.3d 907, 910-11 (4th
Cir.), cert. denied, 118 S. Ct. 102 (1997). If claims were not
exhausted in state court but would now be procedurally barred if
brought in state court, then federal courts can treat the claims as if
they were procedurally defaulted in the state courts. See Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991).
Clagett does not expressly acknowledge that his claims regarding
his confession to Detective Yoakum were never exhausted in the state
courts and would now be procedurally barred if brought there. The
district court found that these claims were never raised in state court
because, although Clagett litigated the admissibility of his confession
prior to trial and raised the issue on direct appeal, he did so on
grounds other than those asserted in federal court. J.A. 454-61 (dis-
trict court opinion). The district court explained that, on direct appeal,
Clagett challenged his statement on the ground that because his arrest
was allegedly pretextual, his subsequent statement was inadmissible;
and that Clagett did not raise the involuntariness, unknowing waiver
claims in his state habeas petition either. The question for us is (A)
whether the claims regarding the confession were exhausted and if
not, whether they would now be procedurally barred if brought in
state court, and (B) if they would be, whether there is cause for the
default and actual prejudice.
The district court did not err in finding that the involuntariness,
unknowing waiver claims were never exhausted in state court.
Although Clagett correctly argues that his counsel objected to the
admissibility of his confession during trial and on direct appeal, the
grounds he asserted to support suppression of the confession were dif-
ferent than those grounds that he advances today. 4 And, on direct
_________________________________________________________________
4 As stated above, in Clagett's initial motion to suppress before trial, he
alleged four independent grounds for suppression: lack of probable
cause, assertion of his right to counsel during the interview, unlawful
overbearing by the police through use of misrepresentations during the
interview, and pretextual arrest. Clagett initially advanced the police mis-
representations argument as an independent grounds for suppression, but
he did not renew the argument during the suppression hearing or on
direct appeal.
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appeal he challenged the admissibility of his confession to Detective
Yoakum solely on the ground that there was no probable cause for the
pretextual public intoxication arrest. J.A. 256-57 (Clagett's Va. S. Ct.
Br. on direct review, at 15-16); Clagett, 472 S.E.2d at 268. In fact,
Clagett cites trial counsel's failure to make such claims as evidence
of his trial counsel's ineffective assistance. See Appellant's Br. at 18.
Additionally, Clagett concedes that he "did not raise the issue of
admissibility of his confession to police in his state habeas corpus
petition." Id. at 10; see also J.A. 314-50 (Clagett's Va. S. Ct. Br. in
state habeas).
If those non-exhausted claims were brought in Virginia court
today, they would be procedurally defaulted. Under Virginia law,
claims that are not presented at trial generally cannot be presented on
direct appeal. See Coppola v. Warden of Virginia State Penitentiary,
282 S.E.2d 10 (Va. 1981), cert. denied , 455 U.S. 927 (1982). And, if
claims are not raised on direct appeal, they generally cannot be raised
in state habeas proceedings unless petitioner also raises an ineffective
assistance of counsel claim in the habeas proceedings. See Slayton v.
Parrigan, 205 S.E.2d 680 (Va. 1974), cert . denied, 419 U.S. 1108
(1975); Walker v. Mitchell, 299 S.E.2d 698, 699 (Va. 1983). More-
over, claims not raised in an initial state habeas petition cannot gener-
ally be raised in subsequent state habeas petitions. Va. Code § 8.01-
654(B)(2) ("No writ shall be granted on the basis of any allegation of
facts of which petitioner had knowledge at the time of filing any pre-
vious petition."). Because Clagett did not raise the particular suppres-
sion claims he raises now during trial, on direct appeal, or in his state
habeas petition, these claims would be barred under at least three
independent state procedural rules.
Federal habeas review of a state prisoner's claims that would be
procedurally defaulted under independent and adequate state proce-
dural rules is barred unless the prisoner can show cause for the default
and demonstrate actual prejudice as a result of the alleged violation
of federal law, or prove that failure to consider the claims will result
in a fundamental miscarriage of justice.5 Coleman v. Thompson, 501
_________________________________________________________________
5 Clagett does not argue that failure to consider the claims will result
in a fundamental miscarriage of justice, and we do not find that there
would be a fundamental miscarriage of justice.
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U.S. 722, 750 (1991). A prisoner can demonstrate cause for proce-
dural default by proving that he was deprived of constitutionally
effective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488
(1986). However, if counsel performs at a constitutionally acceptable
level, then counsel's performance cannot constitute cause for proce-
dural default. Id. at 486-88.
Clagett does raise an ineffective assistance of trial counsel claim in
his federal habeas petition -- that counsel was ineffective for not
objecting to the admissibility of the confession on involuntariness and
unknowing waiver grounds. However, he appears to raise the claim
as an independent ground for habeas relief and not as cause for the
procedural default of his claims challenging the admission of the con-
fession to Detective Yoakum. Nonetheless, the district court
addressed the ineffective assistance claim as a potential ground for
cause. Although we recognize that Clagett does not label his ineffec-
tive assistance claim as establishing cause for his procedural default,
we too address the ineffective assistance claim as if Clagett had
argued that it did supply the cause to excuse the procedural default.6
_________________________________________________________________
6 The government makes the additional argument that because Clagett
did not raise in state court the same ineffective assistance of trial counsel
claim that he raises now, J.A. 361-64, the ineffective assistance claim
itself is procedurally defaulted and cannot constitute cause. It is true that
this court has held that "[g]enerally, `a claim of ineffective assistance
[must] be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default.' Murray [v. Car-
rier, 477 U.S. 478, 489 (1986)]; see Pruett v. Thompson, 996 F.2d 1560,
1570 (4th Cir. 1993). This is so, because allowing a petitioner to raise
a claim of ineffective assistance of counsel for the first time on federal
habeas review in order to show cause for a procedural default would
place the federal habeas court `in the anomalous position of adjudicating
an unexhausted constitutional claim for which state court review might
still be available' in contravention of `[t]he principle of comity that
underlies the exhaustion doctrine.' Murray, 477 U.S. at 489." Mackall v.
Angelone, 131 F.3d 442, 446 n.9 (4th Cir. 1998) (en banc), cert. denied,
522 U.S. 1100 (1998).
However, the question in this case would be whether a claim of inef-
fective assistance that was not exhausted but would now be procedurally
barred if brought in state court may constitute cause. In Justus v. Mur-
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First we recognize that in order to establish a claim of ineffective
assistance that can serve as cause to excuse procedural default, Cla-
gett must satisfy the test set forth in Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, Clagett must demonstrate that his
counsel's performance fell below an objective standard of reasonable-
ness, see id. at 687-88, and establish actual prejudice, see id. at 693-
94.
The district court held that trial counsel's performance did not fall
below the standard of objective reasonableness. The district court
explained that although trial counsel should have recognized that the
pretextual arrest argument was "meritless on its face" given the cir-
cumstances under which Clagett was found "passed out" in the
bushes, counsel's decision to pursue the pretextual arrest argument
was not objectively unreasonable. J.A. 457-59. This was because,
according to the district court, trial counsel "pursued a strategy that
they may have hoped would preclude admission of both the Yoakum
and the Channel 3 confessions: had the arrest of Clagett been found
unlawful, counsel may have argued that all subsequent information
resulting from the arrest was fruit of the poisonous tree." J.A. 458-59
(district court opinion). The district court also found that there was no
prejudice, given the existence of the WTKR Channel 3 confession.
J.A. 460 (district court opinion) ("Even had trial counsel succeeded
in persuading the court to suppress the videotaped interview with
_________________________________________________________________
ray, 897 F.2d 709 (4th Cir. 1990), we further said that "Murray [v. Car-
rier] stands for the proposition that before an ineffective assistance of
counsel claim may be raised as cause in federal habeas, it must first be
exhausted in state court and not be procedurally defaulted. Any other
reading of Murray eviscerates Wainwright ." Id. at 714. However, we rec-
ognize that the Supreme Court will hear argument this Term in Carpen-
ter v. Mohr, 163 F.3d 938 (6th Cir.),cert. granted, 120 S. Ct. 444 (1999),
on the question "[w]hether a federal habeas court is barred from consid-
ering an ineffective-assistance-of-counsel claim as`cause' for the proce-
dural default of another habeas claim when the ineffective-assistance
claim is itself procedurally defaulted." Because we hold that there was
no ineffective assistance of counsel that can serve as cause to excuse Cla-
gett's procedural defaults, we do not need to address the question
whether the ineffective assistance of counsel claim could serve as cause
despite it having been procedurally defaulted itself.
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Detective Yoakum, the WTKR interview tape shown to the jury was
its substantive equal. Petitioner clearly announced, voluntarily, and to
a non-state party, that he killed four individuals at the Witchduck
Inn.").
Before evaluating whether trial counsel's performance fell below
an objective standard of reasonableness, we recognize that "[j]udicial
scrutiny of counsel's performance must be highly deferential." Strick-
land, 466 U.S. at 689. We must not permit hindsight to distort our
assessment of counsel's performance, and we must appreciate that
counsel may choose a trial strategy from within a wide range of
acceptable strategies. See id. With this highly deferential standard of
trial counsel's performance in mind, we are satisfied that trial counsel
chose a strategy for suppressing Clagett's confession to Detective
Yoakum -- that the confession was obtained while Clagett was
unlawfully in custody pursuant to a pretextual arrest -- that did not
fall below an objective standard of reasonableness. Before Officer
Malcolm encountered Clagett, she had been notified that the police
were searching for him in connection with the Witchduck Inn homi-
cides. Officer Malcolm testified that when she responded to the call
regarding Clagett, it was not a "suspicious-person" call, but rather an
"assist-rescue" call for medical reasons. J.A. 29. Clagett was not
unconscious but was merely sleeping, J.A. 59, and he was able to
identify himself and responded to Officer Malcolm's orders. J.A. 31.
Officer Malcolm did not know that Clagett did not reside at the apart-
ment building outside of which Clagett was found; he was found near
bushes next to a patio outside an apartment. J.A. 36. Officer Malcolm
did not ask Clagett whether he lived in the adjacent apartment. J.A.
38-39. Although he was found asleep in the bushes and smelled of
alcohol, he was not unconscious, and his bloodshot eyes and slight
unsteadiness could have been as consistent with sleep deprivation as
with intoxication. Finally, once at the police station, Officer Malcolm
did not charge Clagett for public intoxication. In light of these facts
known to Clagett's trial counsel at the time, we conclude that coun-
sel's strategy of arguing that the public intoxication arrest was pretex-
tual did not fall below an objective standard of reasonableness.
Clagett makes two arguments contesting the district court's finding
that his trial counsel's performance was not objectively unreasonable.
First Clagett argues that the district court provided no reason for why
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trial counsel chose between the pretextual arrest and the involuntari-
ness, unknowing waiver claims, and that they were not mutually
exclusive. See Appellant's Br. at 19. However, the potential for con-
flict between the two claims is quite obvious. Clagett now points to
the "facts" that he was found asleep in bushes, appeared to be intoxi-
cated, and smelled of alcohol when he was arrested for public intoxi-
cation, see id. at 11, as evidence of why Detective Yoakum should
have known Clagett was too drunk to understand his Miranda warn-
ings. However, in arguing that the arrest for public intoxication was
pretextual, trial counsel contested the facts of Clagett's public intoxi-
cation. See, e.g., J.A. 64-65 (trial counsel pressing Officer Malcolm
on what "specific signs of intoxication" she noted about him when she
first saw him"); J.A. 65 (trial counsel asking Officer Malcolm
whether Clagett's speech was slurred); J.A. 116-118 (trial counsel
asking Detective Yoakum whether he noticed how Clagett smelled,
was walking, and talking; whether he "satisfied[himself] at least that
he was not . . . too intoxicated to give a statement. . . or to understand
his rights"; and whether he believed the sleep deprivation Clagett
claimed accounted for Clagett's bloodshot eyes). That Clagett now
wants to rely on the facts suggesting that he was intoxicated instead
of Detective Yoakum's testimony that Clagett appeared to be sober
amply highlights the tension between the two strategies.
Second, Clagett argues that a "fruit of the poisonous tree" analysis
would apply both to the pretextual arrest argument that trial counsel
did make and to the involuntary confession, unknowing waiver argu-
ment that trial counsel should have made. According to Clagett, "but
for the involuntariness of the first confession pulled from Clagett
there would have not been a second Channel 3 TV confession."
Appellant's Br. at 19. And, Clagett relies on Arizona v. Fulminante,
499 U.S. 279 (1991), to argue that, because the first confession to
police provided the details for and made credible the second confes-
sion to Channel 3, the second confession was tainted by the constitu-
tional violations associated with the first confession.
As stated above, the relevant inquiry in conducting the ineffective
assistance of counsel analysis is whether trial counsel's performance
fell below an objective standard of reasonableness, not whether trial
counsel chose the best of all possible strategies. But, even if we were
to engage in hindsight in weighing the trial strategy chosen against
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the trial strategy defendant now wishes had been chosen, the argu-
ments for "taint" are as strong if not stronger for the trial strategy cho-
sen -- the pretextual arrest argument -- as for the one not chosen.
Under the pretextual arrest theory, trial counsel could argue that,
because Clagett was unlawfully in custody, any confessions to anyone
while he was still in custody were fruit of the poisonous tree. How-
ever, to make the same taint argument under Clagett's new involun-
tary confession theory, trial counsel would have to connect directly
the first confession to the second confession, because he was being
lawfully held in police custody when Channel 3 interviewed him. Cla-
gett has not identified any evidence to suggest that the Channel 3
interview was tainted by the first confession, and the record before us
contains none. See Alderman v. United States, 394 U.S. 165, 183
(1969).
Not only has Clagett failed to show how his new suppression strat-
egy for trial is even equal to the one chosen by trial counsel, but the
taint argument itself is meritless under either strategy for suppressing
the confession. First, although a second confession to police follow-
ing a previous involuntary confession to police is subject to a taint
analysis, see Oregon v. Elstad, 470 U.S. 298 (1985), Clagett points
to nothing in the record of his case that would suggest that any taint
was not dissipated by the time he voluntarily answered the question
of the non-state party reporter.
Second, Clagett misreads Fulminante as a case in which an invol-
untary confession to a police informant tainted a later confession to
a non-state actor. To the contrary, the relevant discussion in Fulmi-
nante regarding the connection between the first involuntary confes-
sion and the second voluntary confession appeared in the Supreme
Court's harmless error analysis, not in a "taint" analysis. There was
a significant amount of time between the two confessions and they
were made to two different people -- the first to a jailhouse informant
and the second to the informant's girlfriend. Having decided that the
first confession should have been suppressed because the defendant
believed his life was in danger if he did not confess, the Court under-
took harmless error analysis and held the error was not harmless
because: (1) there was so little physical evidence that both confes-
sions were necessary for the conviction; (2) the girlfriend was not an
independently credible witness and so the first confession was needed
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to make the second confession more credible; (3) the admission of the
first confession, because it included references to organized crime,
permitted the prosecution to submit damaging evidence about orga-
nized crime; and (4) the first confession influenced sentencing as
well.
Because trial counsel's performance at trial did not fall below an
objectively reasonable standard, trial counsel's performance did not
constitute constitutionally ineffective assistance of counsel. There-
fore, counsel's performance cannot serve as cause to excuse Clagett's
default of the claims relating to his confession to Detective Yoakum,
which he has raised for the first time in these federal habeas proceed-
ings. Even if we were to address the merits, despite Clagett's failure
to exhaust them in state court and their certain procedural default if
they were brought in state court today, we would not conclude that
the trial court erred in not suppressing Clagett's confession to Detec-
tive Yoakum. Under the totality of circumstances, Clagett appeared
to the Detective not to be intoxicated; Clagett did not slur his speech
or have trouble walking at the time of the single-officer interview,
despite his claimed lack of sleep and alcohol use; and Clagett contin-
ued to deny his presence at the Inn after being told the first falsehood
by the Detective, suggesting that he was not as vulnerable to the ruses
as Clagett now contends.
Finally, even if we did believe that the first confession was invol-
untary or that Clagett was incapable of understanding his Miranda
rights, we agree with the district court that the Channel 3 confession
was the substantive equal to the first confession, and provided the jury
with an independently credible confession upon which to base its con-
viction of Clagett.
IV.
As explained above, Clagett raises his ineffective assistance of trial
counsel claim as an independent basis for granting the writ of habeas
corpus. However, because we have already rejected Clagett's claim
that his trial counsel was ineffective for failing to object to the admis-
sion of the videotaped confession to Detective Yoakum on the
grounds that his confession was involuntary and he did not knowingly
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waive his Miranda rights, we reject Clagett's independent ineffective
assistance claim as well.
Additionally, because we reject the ineffective assistance of trial
counsel claim on its merits, we do not also address whether Clagett
has shown cause for his failure to exhaust the claim in state court and
for its certain procedural default if brought now.
V.
For the foregoing reasons, Clagett has failed to make a substantial
showing of the violation of a constitutional right. Therefore, his appli-
cation for a certificate of appealability is denied and his petition for
writ of habeas corpus is dismissed.
DISMISSED
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