Michael Wayne Williams v. JOHN B. TAYLOR, Warden, Sussex I State Prison

The Supreme Court affirmed in part and
reversed in part this Court’s decision.
In obedience to the Supreme Court’s mandate,
we remanded petitioner’s juror bias and
prosecutorial misconduct claims to the district
court for further proceedings consistent with
the Supreme Court’s decision.
This action was taken in an unpublished order
entered 4/28/00.

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL WAYNE WILLIAMS,
Petitioner-Appellant,
v.
No. 99-1
JOHN B. TAYLOR, Warden, Sussex I
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge;
Robert R. Merhige, Jr., Senior District Judge.
(CA-96-529-3)
Argued: June 7, 1999
Decided: August 2, 1999
Before WILKINSON, Chief Judge, and
HAMILTON and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Hamilton and Judge Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: Barbara Lynn Hartung, Richmond, Virginia, for Appel-
lant. Donald Richard Curry, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: James E. Moore, CHRISTIAN & BARTON,

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L.L.P., Richmond, Virginia, for Appellant. Mark L. Earley, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Michael Wayne Williams was sentenced to death for the murders
of Morris Keller, Jr., and his wife, Mary Keller. At trial, Williams
admitted to robbing the Kellers, being an accomplice to the rape of
Mrs. Keller, and shooting Mr. Keller. He now appeals the district
court's denial of his petition for a writ of habeas corpus. We affirm
the judgment of the district court.
I.
Between 9:30 and 10:30 on the night of Saturday, February 27,
1993, Williams and Jeffrey Alan Cruse caught a ride with Verena
Lozano James to a rural area in Cumberland County. Williams and
Cruse intended to rob the nearby Bear Creek Market with a .357 cali-
ber Ruger Black Hawk revolver that Williams had given to Cruse.
After finding the market closed, Williams informed Cruse that "he
knew a house where we can go; they'd have a couple thousand dol-
lars." The two men then proceeded to the home of Mr. and Mrs. Kel-
ler. Mr. Keller opened the door, Williams pointed the .357 at him, and
both Williams and Cruse walked inside the house.
Williams and Cruse then escorted Mr. Keller to the Kellers'
kitchen, where the three men encountered Mrs. Keller. Williams
demanded that the Kellers remove their clothing. Cruse then began to
search the house for money and other valuables while Williams
remained with the Kellers. Cruse located a fully-loaded .38 caliber
handgun during his search. When Cruse returned to the kitchen, Wil-
liams suggested they tie the Kellers up, and Cruse did so with some
phone cord. Williams and Cruse then placed the Kellers in a living
room closet and continued their search of the house.
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Some time later Cruse moved Mrs. Keller, still naked, to another
closet -- this one in a back bedroom of the house. Both Williams and
Cruse then raped Mrs. Keller. During the rape Mrs. Keller pleaded,
"Just don't hurt us." After they had finished, Williams and Cruse
retrieved Mr. Keller, and Williams instructed both Kellers to take
showers and put on clean clothing. Williams then told the Kellers they
were going to "take a walk." On the way out of the house Williams
informed Mrs. Keller that he planned to burn the house. Upon Mrs.
Keller's request, Williams accompanied her back inside to get the
Kellers' marriage license.
With Williams carrying the .38 and Cruse the .357, the two men
walked the Kellers down a dirt road and into a thicket. Williams then
took up a position directly behind Mr. Keller and Cruse stood behind
Mrs. Keller. Williams said, "We'll shoot at the count of three." At the
count of three, Williams shot Mr. Keller, who fell to the ground.
Cruse did not fire. Williams turned to Cruse and told him to shoot.
After Cruse shot and Mrs. Keller fell, Mr. Keller stood up again. Wil-
liams then shot him a second time. As Cruse began to walk away,
Williams said, "Wait . . . . What if they ain't dead?" Williams then
approached the Kellers and shot each a few more times.
Williams and Cruse next returned to the house, where they loaded
the Kellers' Jeep Cherokee with their television set, microwave oven,
stereo and speakers, and shotgun. After loading the Cherokee, the two
men set fire to the house.
The next day Williams and Cruse sold some of the property they
had taken from the Kellers. They then threw the remaining property
and the .357 into the Rappahannock River and set fire to the Chero-
kee.
When James heard about the fire at the Kellers' house, she con-
tacted the police and informed them that she had deposited Williams
and Cruse near the house on the night of the fire. The police inter-
viewed Cruse, who was unresponsive until the police located the
bodies of Mr. and Mrs. Keller.
After consulting counsel, Cruse agreed to a plea bargain pursuant
to which he would disclose his knowledge of the crimes in exchange
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for a promise from the Commonwealth not to seek the death penalty.
Cruse then gave a statement in which he explained the events of the
fateful night in detail, with the exception of Cruse's own participation
in the rape of Mrs. Keller. Upon learning of Cruse's falsehood, the
Commonwealth revoked its plea agreement with Cruse and later
indicted him for capital murder.
Williams was indicted for the capital murder, robbery, rape, and
abduction of Mrs. Keller; for the capital murder, robbery, and abduc-
tion of Mr. Keller; for capital murder based on two related homicides;
statutory burglary; and arson. At trial in January 1994, Williams took
the stand in his own defense. He confirmed significant parts of the
Commonwealth's case. In particular, he indicated that he was the one
who suggested robbing the Bear Creek Market, that it was his sugges-
tion to set fire to the Kellers' house, and that he shot Mr. Keller in
the head. He contradicted portions of the evidence presented against
him, most of which was in the form of testimony by Cruse. Specifi-
cally, he denied that he also raped Mrs. Keller, that he fired any shots
other than the first one, and that he was the instigator at various other
points during the commission of the crimes.
The jury convicted Williams of capital murder. It then recom-
mended the death sentence on the basis of Williams' future danger-
ousness and the vileness of his crimes. The trial court agreed with the
jury's recommendation and sentenced Williams to death. The
Supreme Court of Virginia affirmed the conviction and sentence,
Williams v. Commonwealth, 450 S.E.2d 365 (Va. 1994), and the
United States Supreme Court denied certiorari, Williams v. Virginia,
515 U.S. 1161 (1995).
Williams then filed a petition for state habeas and moved for dis-
covery, an evidentiary hearing, and expert assistance. The Supreme
Court of Virginia denied these motions and the petition, stating with-
out explanation that Williams' claims were meritless. The United
States Supreme Court again denied certiorari. Williams v. Netherland,
519 U.S. 877 (1996).
Next, Williams filed a petition for habeas corpus in the United
States District Court for the Eastern District of Virginia. The district
court granted Williams an evidentiary hearing on three of his claims
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and dismissed the rest. Because Williams filed his petition after the
effective date of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, this court
entered a stay and instructed the district court to reconsider its grant
of an evidentiary hearing in light of 28 U.S.C. § 2254(e) as amended
by that Act. After applying the AEDPA, the district court denied Wil-
liams' request for an evidentiary hearing and dismissed his petition in
its entirety. Williams now appeals.
II.
Williams maintains he was entitled to an evidentiary hearing in the
district court to establish several claims. Two of those claims arise
under the Sixth Amendment. First, Williams claims that one of the
jurors failed to answer honestly questions put to her on voir dire. See
United States v. Bynum, 634 F.2d 768 (4th Cir. 1980). Specifically,
Williams contends that juror Bonnie Stinnett failed to disclose that
she had once been married to Deputy Sheriff Claude Meinhard --
who would testify for the Commonwealth -- when Stinnett was asked
whether she was related to any witness in the case. Williams also
maintains that Stinnett withheld the fact that prosecutor Robert
Woodson had represented her in her divorce proceedings. Second,
Williams claims that the prosecutor improperly failed to correct the
dishonest juror. Williams argues that Woodson failed to disclose both
of these pieces of information and thereby violated his right to a fair
trial. See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993).
With respect to his other claim, Williams maintains that the Com-
monwealth failed to provide him with exculpatory evidence as
required under Brady v. Maryland, 373 U.S. 83 (1963). In particular,
Williams claims that the Commonwealth failed to disclose a psychiat-
ric evaluation that indicated Cruse had little specific recollection of
the events surrounding the Keller murders.
A.
The district court denied Williams an evidentiary hearing on these
claims. Section 2254(e)(2) provides:
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(2) If the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the applicant
shows that --
(A) the claim relies on --
(i) a new rule of constitutional law, made retro-
active to cases on collateral review by the
Supreme Court, that was previously unavailable;
or
(ii) a factual predicate that could not have been
previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be suffi-
cient to establish by clear and convincing evidence
that but for constitutional error, no reasonable fact-
finder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2). The district court held that whatever else Wil-
liams could show, he could not demonstrate actual innocence as
required by section 2254(e)(2)(B).
Williams argues that the district court erred in applying section
2254(e)(2) to his request at all. He maintains that section 2254(e)(2)
applies only when the petitioner "has failed to develop the factual
basis of a claim in State court." Id. (emphasis added); see also
Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.), cert. denied, 119
S. Ct. 587 (1998). According to Williams, he did not "fail" to develop
the factual foundation for any of these claims in state court. Williams
argues that he had no way of knowing the specific facts underlying
his claims. This is especially true, Williams maintains, because the
Supreme Court of Virginia denied his requests for discovery, a hear-
ing, and expert and investigative assistance. Williams contends, there-
fore, that section 2254(e)(2) should not apply to his request for a
hearing in district court.
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We disagree. To escape the requirements of section 2254(e)(2), a
petitioner must "diligently . . . develop the factual basis of" his claim
in state court. Cardwell, 152 F.3d at 337; see also Wright v. Angelone,
151 F.3d 151, 164 (4th Cir. 1998) (in order to obtain evidentiary hear-
ing petitioner must show "why the factual predicate for this claim
could not have been discovered earlier"). Ignorance in and of itself is
not sufficient to show diligence; that ignorance must be reasonable.
See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (to be excused,
legal basis of a claim must not be reasonably available). Nor may a
petitioner's requests for investigative assistance, hearings, and discov-
ery on state habeas be vague and conclusory. Rather, a petitioner must
tie his requests to his specific claims and state with some particularity
the need for assistance. To hold otherwise would permit criminal
defendants to avoid the strictures of section 2254(e)(2) simply by
churning out unsupported, boilerplate requests for state court discov-
ery, hearings, and investigative and expert assistance.
Williams clearly has not "diligently sought to develop the factual
basis of" his claims for federal habeas relief. Cardwell, 152 F.3d at
337. The documents supporting Williams' Sixth Amendment claims
have been a matter of public record since Stinnett's divorce became
final in 1979. Indeed, because Williams' federal habeas counsel
located those documents, there is little reason to think that his state
habeas counsel could not have done so as well. Williams' request for
investigative assistance was also deficient. He alluded vaguely to "ir-
regularities, improprieties and omissions" with regard to jury selec-
tion and asked for an investigator to examine "all circumstances
relating to the empanelment of the jury and the jury's consideration
of the case." This request in no way alerted the state habeas court to
any specific claim. See Picard v. Connor, 404 U.S. 270, 275 (1971)
("[I]t would be unseemly in our dual system of government for a fed-
eral district court to upset a state court conviction without an opportu-
nity to the state courts to correct a constitutional violation." (internal
quotation marks omitted)). The failure to develop the Sixth Amend-
ment claims was thus attributable to petitioner, not to the Supreme
Court of Virginia's rejection of a fishing expedition request.
The same is true of Cruse's psychiatric evaluation. In support of his
claim that the Commonwealth suppressed the evaluation, Williams
provides nothing more than an affidavit from his state habeas counsel
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attesting to "no recollection of seeing this report in Mr. Cruse's court
file." In light of the fact that Williams' federal habeas counsel located
the evaluation in this very file, state habeas counsel's failure to see
the report is insufficient to demonstrate diligence. Indeed, that failure
tends to show that counsel did not act diligently.
Thus, it is clear that section 2254(e)(2) applies to Williams' request
for a hearing. It is equally clear that Williams is ineligible for a hear-
ing in federal court under this section. To be eligible, Williams must
be able to demonstrate both due diligence and that "but for [the
alleged] constitutional error, no reasonable factfinder would have
found [him] guilty of the underlying offense." 28 U.S.C.
§ 2254(e)(2)(A)(ii)-(B).
The discussion above makes plain that Williams was not duly dili-
gent. Nor can Williams show that no reasonable factfinder would
have found him guilty of capital murder. At trial Williams himself
testified that he robbed the Kellers at gunpoint, was at least an accom-
plice to the rape of Mrs. Keller, and was the first person to shoot Mr.
Keller in the head. The Commonwealth's Assistant Chief Medical
Examiner, who performed the autopsy on Mr. Keller, testified that
each gunshot wound suffered by Mr. Keller contributed to his death.
Moreover, although Williams denied that he raped Mrs. Keller, tests
on seminal fluid retrieved from her body revealed that some of the
fluid could be attributed only to Williams.
Under Virginia law, this evidence was more than sufficient to con-
vict him of capital murder. See Strickler v. Commonwealth, 404
S.E.2d 227, 235 (Va. 1991) ("We adhere to the view that where two
or more persons take a direct part in inflicting fatal injuries, each joint
participant is an `immediate perpetrator' for the purposes of the capi-
tal murder statutes."); Briley v. Commonwealth, 273 S.E.2d 57, 63
(Va. 1980) (holding that it is only necessary to prove that defendant
was immediate perpetrator in the murder and accomplice in the rape
to convict of capital murder). In sum, it is not surprising that the dis-
trict court found that based "on this evidence alone, Williams cannot
demonstrate by `clear and convincing evidence' that no reasonable
juror would have found him guilty of the capital murder of Mr. Kel-
ler," that "Williams cannot make the requisite showing of `innocence'
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under 28 U.S.C. § 2254(e)(2)," and that "he is not entitled to an evi-
dentiary hearing on his remaining claims."
B.
Even were section 2254 not to apply, Williams would be unable to
show his eligibility for a hearing under pre-AEDPA law. See
Cardwell, 152 F.3d at 337 ("If, on the other hand, the applicant has
not `failed to develop' the facts in state court, the district court may
proceed to consider whether a hearing is appropriate, or required
under [pre-AEDPA law]."). Williams can show neither cause for nor
prejudice from his failure to raise the aforementioned Sixth Amend-
ment and Brady claims in state court. See Keeney v. Tamayo-Reyes,
504 U.S. 1 (1992).
To demonstrate cause, Williams must establish that "`some objec-
tive factor external to the defense impeded counsel's efforts.'"
McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). As noted, Williams' failure to
develop the facts in state court was due to his own lack of diligence.
Williams neither brought forth reasonably available facts, nor made
reasonable efforts to convince the Supreme Court of Virginia that
additional discovery was warranted.
Williams is also unable to demonstrate prejudice. In order to do so,
he must show that, absent the alleged constitutional violation, the out-
come of the case likely would have been different. See Carrier, 477
U.S. at 494. As we have indicated, Williams' trial testimony alone
was enough to convict him. See Fitzgerald v. Greene, 150 F.3d 357,
366 (4th Cir.) (finding no actual prejudice based on overwhelming
evidence of guilt, future dangerousness, and vileness of crime), cert.
denied, 119 S. Ct. 389 (1998). Moreover, Williams' claims with
respect to juror Stinnett were marginal. It is hardly clear that Stinnett
was related to Deputy Sheriff Meinhard given that the two divorced
some fifteen years before Williams' trial. Furthermore, Meinhard's
testimony was brief and did not speak to the critical facts of the trial.
In fact, Williams' trial attorneys saw no need to cross-examine him.
And the prosecutor explained his failure to notify the court of the rela-
tionship in an affidavit in which he stated that he simply did not
remember being involved in Stinnett's divorce -- a plausible claim
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given that the divorce occurred fifteen years prior to Williams' trial
and was uncontested. Finally, it is anything but clear that a divorce
from one of the Commonwealth's witnesses would predispose a juror
toward the Commonwealth's case.
For all of these reasons, the district court properly denied Wil-
liams' request for an evidentiary hearing.
III.
Williams next challenges the district court's dismissal of two
claims on which the Supreme Court of Virginia found against Wil-
liams on the merits. We review decisions by state courts on the merits
of a claim under section 2254(d). Section 2254(d) provides that:
(d) An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adju-
dicated on the merits in State court proceedings unless the
adjudication of the claim --
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceed-
ing.
28 U.S.C. § 2254(d). Under normal circumstances, section 2254(d)(1)
prohibits the issuance of the writ unless the state court decision con-
flicts squarely with Supreme Court precedent which is controlling as
to law and fact, or if no such precedent exists, if "the state court's res-
olution of a question of pure law rests upon an objectively unreason-
able 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." Green v. French,
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143 F.3d 865, 870 (4th Cir. 1998), cert. denied , 119 S. Ct. 844 (1999).
Where, as here, "the state court decision fails to articulate any ratio-
nale for its adverse determination . . . [we] must independently ascer-
tain whether the record reveals a violation of [petitioner's
constitutional rights.]" Cardwell, 152 F.3d at 339. Nonetheless an
overall obligation of deference to the state court system still obtains,
and a state court's perfunctory decision both constitutes an adjudica-
tion on the merits, see Wright v. Angelone, 151 F.3d 151, 156-57 (4th
Cir. 1998), and must be upheld if it "is at least minimally consistent
with the facts and circumstances of the case." Weeks v. Angelone, 176
F.3d 249, 259 (4th Cir. 1999) (internal quotation marks omitted).
Here that standard of minimal consistency was more than met.
A.
Williams first claims that the prosecution suppressed an alleged
informal plea agreement that the Commonwealth had with Cruse in
violation of Brady. The Supreme Court of Virginia was correct, how-
ever, to reject Williams' claim. In state court the Commonwealth sup-
plied two affidavits -- one from Woodson and one from Cruse's trial
counsel, Donald Blessing -- stating unequivocally that Cruse had no
agreement. Specifically, Woodson swore, "At the time Cruse testified
against Williams in January of 1994, he had no plea agreement. Cruse
testified truthfully that there was no plea agreement and that he
remained charged with capital murder and subject to the death pen-
alty." Similarly, Blessing stated, "Cruse testified truthfully at . . . trial
that he had no plea agreement, that he remained charged with capital
murder for the Cumberland offenses, and that he was subject to a pos-
sible death sentence."
Moreover, before the district court, the Commonwealth introduced
another affidavit from Blessing, in which he swore,"At the time
Cruse testified against Williams in Cumberland County, he had no
agreement or understanding, formal or informal, with the Common-
wealth." The district court thus properly credited the state court's
judgment, and there is no reason for federal courts to revisit the state
court's determination in a federal hearing in view of the unrefuted
evidence. See Eaton v. Angelone, 139 F.3d 990, 995 (4th Cir.) (refus-
ing to transform "a federal habeas proceeding into a second trial."),
cert. denied, 118 S. Ct. 2338 (1998); Spencer v. Murray, 18 F.3d 229
11

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(4th Cir. 1994) (upholding denial of habeas corpus on basis of trial
counsel's affidavit); Sawyers v. Collins, 986 F.2d 1493, 1504 (5th Cir.
1993) (en banc) (upholding denial of habeas corpus without evidenti-
ary hearing even when state court made factual determination solely
on basis of affidavits).
Finally, even if Williams could demonstrate that Cruse had an
informal plea agreement, he could not show materiality. See Kyles v.
Whitley, 514 U.S. 419 (1995) (demonstration of a Brady claim
requires a showing of materiality). Given Williams' own testimony
that he was at least an accomplice in the rape of Mrs. Keller and that
he shot Mr. Keller in the head, we are confident there is no "reason-
able probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Id. at 433-34
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion
of Blackmun, J.)). As a result, we agree that Williams failed to dem-
onstrate a Brady violation.
B.
Williams next argues that the prosecutor violated his Sixth Amend-
ment right to be present at trial and to confront adverse witnesses. See
Illinois v. Allen, 397 U.S. 337 (1970) (Sixth Amendment right to be
present at trial); Pointer v. Texas, 380 U.S. 400 (1965) (Sixth Amend-
ment right to confront prosecution's witnesses). Specifically, Wil-
liams charges that prosecutor Woodson impermissibly burdened those
rights when, on cross-examination, he asked Williams, "You're the
only witness who has sat in here through this trial and heard the testi-
mony of every witness before you got to testify; isn't that correct?"1
We need not decide whether allowing the prosecutor to proceed
with this line of questioning was constitutional error because even if
it were, the error was harmless. See Sherman v. Smith, 89 F.3d 1134,
1137 (4th Cir. 1996) (en banc) (noting that harmless error analysis
applies to similar trial errors such as improper comment on defen-
dant's silence at trial). Woodson's line of questioning was clearly
aimed at impeaching Williams' testimony in the eyes of the jury.
_________________________________________________________________
1 Indeed, the Supreme Court has recently granted certiorari on this very
question. Portuondo v. Agard, 119 S. Ct. 1248 (1999).
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Such impeachment, however, would only have undermined Williams'
exculpatory testimony, leaving unaffected his inculpatory testimony.
And, as noted, Williams' inculpatory testimony was devastating. In
such circumstances, it is clear that the error, if that it was, did not
have a "substantial and injurious effect or influence in determining
the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(internal quotation marks omitted).
Williams' claim is similarly unavailing under pre-AEDPA law.
Whether or not we would determine independently that Woodson's
question violated Williams' Sixth Amendment rights, it is clear that
such a holding would create a new rule. See Teague v. Lane, 489 U.S.
288 (1989). Williams points to Griffin v. California, 380 U.S. 609
(1965), and Brooks v. Tennessee, 406 U.S. 605 (1972), to support his
claim. In Griffin, the Supreme Court established that drawing a nega-
tive inference from the fact that a defendant has exercised his right
to remain silent violates his Fifth Amendment rights. 380 U.S. at 613.
In Brooks, the Court held that requiring a defendant to testify first or
not to testify at all also impermissibly burdened his Fifth Amendment
right to remain silent. 406 U.S. at 613. Neither decision held that it
is constitutionally impermissible to impeach the defendant's testi-
mony if he decides not to remain silent by commenting on his singu-
lar ability to hear the entirety of the preceding witnesses' testimony.
Indeed, the Court in Brooks was careful to recognize the "risk of a
defendant's coloring his testimony to conform to what has gone
before" and to stress that "our adversary system reposes judgment of
the credibility of all witnesses in the jury." Id. at 611. In short, we
cannot hold that either Griffin or Brooks "dictate[s]" a finding of con-
stitutional error in circumstances such as these. Stringer v. Black, 503
U.S. 222, 228 (1992).
The district court correctly denied Williams' requests for relief on
these two claims.
IV.
A.
Williams next argues that the district court misinterpreted 21
U.S.C. § 848(q)(9). Section 848(q)(9) governs the granting of expert
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assistance to indigent prisoners in connection with their federal
habeas proceedings, providing that
Upon a finding that investigative, expert, or other services
are reasonably necessary for the representation of the defen-
dant, whether in connection with issues relating to guilt or
the sentence, the court may authorize the defendant's attor-
neys to obtain such services on behalf of the defendant and,
if so authorized, shall order the payment of fees and
expenses therefor under paragraph (10). No ex parte pro-
ceeding, communication, or request may be considered pur-
suant to this section unless a proper showing is made
concerning the need for confidentiality. Any such proceed-
ing, communication, or request shall be transcribed and
made a part of the record available for appellate review.
Id. (emphasis added).
Williams contends that the district court erred in interpreting this
section to require Williams to show a need for confidentiality in an
adversary hearing. When the district court made that determination,
Williams refused to participate in an adversary hearing, and the dis-
trict court denied his request for expert assistance.
We agree with the district court. In limiting ex parte requests for
expert assistance, Congress was clearly addressing the routine
approval of such requests even in those instances where expert or
investigative services were unnecessary. Section 848(q)(9) explicitly
provides that there shall be no "ex parte . . . communication . . . pursu-
ant to this section" without a showing of a need for confidentiality.
Id. Allowing an ex parte hearing to determine the need for an ex parte
hearing not only seems convoluted, but it also runs afoul of the plain
language of the statute. See United States v. Gonzales, 150 F.3d 1246,
1264 (10th Cir. 1998) (process is one that "is not to be held ex parte
unless a proper showing is made concerning the need for confidential-
ity." (emphasis added) (internal quotation marks omitted)), cert.
denied sub nom. Albuquerque Journal v. Gonzales, 119 S. Ct. 918
(1999); Patrick v. Johnson, 37 F. Supp. 2d 815, 816 (N.D. Tex. 1999)
("Section 848(q)(9) clearly requires `a proper showing . . . concerning
the need for confidentiality' before the Court may consider any ex
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parte communication or request." (emphasis added) (quoting 21
U.S.C. § 848(q)(9))).
The district court also rightly denied Williams' request for expert
assistance. When Williams refused to proceed after the district court
required him to demonstrate his need for confidentiality in an adver-
sary hearing, he necessarily failed to show that expert services were
"reasonably necessary." 21 U.S.C. § 848(q)(9).2
B.
Finally, Williams argues that the district court erred by requiring
him to file his federal habeas petition within 180 days of April 24,
1996 -- the AEDPA's enactment date -- pursuant to 21 U.S.C.
§ 2263. Williams contends that section 2263 applies only to "opt-in"
states -- those states that have met certain requirements pertaining to,
inter alia, the appointment and compensation of counsel for post-
conviction relief proceedings. Because this circuit has not yet recog-
nized Virginia as an "opt-in" state, Williams contends that applying
section 2263 was error. Instead, Williams maintains, the district court
should have granted him one year from the effective date of the
AEDPA to develop his petition further. See Brown v. Angelone, 150
F.3d 370, 375 (4th Cir. 1998) (granting petitioners whose convictions
became final in a non-opt-in state before the effective date of the
AEDPA one year from the effective date to file their petitions).
Any error here was harmless. Williams' case remained in district
court for a year and a half after he filed his petition. Yet Williams
_________________________________________________________________
2 We are unpersuaded by Williams' argument that our interpretation of
section 848(q)(9) renders it unconstitutional. Williams' sole contention
is that any reading of section 848(q)(9) that requires a petitioner to
divulge confidential information impermissibly impinges on his right of
access to the courts. See Gardner v. California, 393 U.S. 367 (1969)
(requiring that hearing transcripts that are made available to all be pro-
vided to indigent habeas petitioners to guarantee access to the courts).
We do no more here than uphold the district court's determination that
petitioner must demonstrate his need for confidentiality at a hearing.
What information is disclosed at that hearing would of course remain
within the discretion of the district court.
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made not one motion to amend on the basis of claims developed dur-
ing the petition's pendency. Furthermore, although Williams requests
a remand for an additional five months in which to amend his petition
now, he provides no additional claims he might like to add. In all
events, Williams cannot demonstrate that the district court's error
prejudiced him.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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