Cardwell v. Greene

• Decision Date: 11 August 1998
• Docket Number: No. 97-20,97-20
• Parties: Kevin Dewayne CARDWELL, Petitioner-Appellant, v. Fred W. GREENE, Warden, Mecklenburg Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 331

152 F.3d 331

Kevin Dewayne CARDWELL, Petitioner-Appellant, v. Fred W. GREENE, Warden, Mecklenburg Correctional Center,

Respondent-Appellee.

No. 97-20.

United States Court of Appeals, Fourth Circuit.

Argued April 8, 1998.

Decided Aug. 11, 1998.

ARGUED: Dennis William Dohnal, Brenner, Dohnal, Evans & Yoffy, Richmond, Virginia, for Appellant. Robert Quentin Harris, 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.

Before WIDENER, MURNAGHAN, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge WIDENER and Judge MICHAEL joined.

OPINION

MURNAGHAN, Circuit Judge:

Kevin DeWayne Cardwell appeals the district court's dismissal of his petition for a writ of habeas corpus. The appeal presents three questions. First, we are called upon to determine whether the district court erred in denying Cardwell an evidentiary hearing on his claim of ineffective assistance of counsel. Because we find that Cardwell has failed to demonstrate entitlement to an evidentiary hearing, we consider whether his death sentence was rendered constitutionally infirm by trial counsel's failure to develop and present expert testimony regarding Cardwell's mental health. In assessing the merits of Cardwell's claim, we must also decide whether the Virginia Supreme Court's summary disposition of Cardwell's ineffective assistance claim constitutes an "adjudicat[ion] on the merits" within the meaning of 28 U.S.C. § 2254(d)(1), and, if so, how the absence of a statement of reasons affects our review of the state court decision.

I

The facts relating to Cardwell's murder of fifteen-year-old Anthony Brown have been fully set forth by the Virginia Supreme Court in Cardwell v. Commonwealth, 248 Va. 501, 450 S.E.2d 146, 149-50 (1994). Because our analysis of Cardwell's ineffective assistance claim requires some understanding of those facts, we provide a brief summary here.

On November 20, 1991, Tina Poindexter alerted Cardwell to Brown's impending arrival in Richmond, Virginia. Poindexter informed Cardwell that Brown would be carrying drugs, and that she intended to meet Brown upon his arrival at the bus station. Armed with handguns, Cardwell and three friends intercepted Brown and Poindexter at the bus station. They stole Brown's duffel bag and repaired to Cardwell's apartment. A search of the duffel bag however, failed to yield any drugs.

The traitorous Poindexter then called Cardwell to advise him that the drugs were strapped to the inside of Brown's leg. At Cardwell's suggestion, Poindexter agreed to tell Brown that she had friends who could help retrieve his stolen belongings and bring him to Cardwell's apartment. When Cardwell announced to his friends that he planned to rob Brown again and then either to knock him unconscious or kill him, two of the confederates departed. It remained to Cardwell and Richard Claiborne to implement the scheme.

Shortly after Poindexter and Brown arrived, Cardwell pointed a gun at Brown and demanded the drugs. Claiborne pulled down Brown's pants and took the drugs from Brown's inner thigh. Brown was then forced at gunpoint to lie face down on the floor in the back seat of Poindexter's car. Brown repeatedly begged that his life be spared, to which Cardwell responded "shut up."

After driving to the back of a shopping center, Cardwell demanded Claiborne's .380 caliber automatic pistol and marched Brown into the woods. Claiborne, who followed at a distance of approximately ten feet, heard Brown plead for his life and Cardwell answer "shut up." Claiborne then heard a "gargling noise" which he recognized "from the movies" as the sound of Cardwell cutting Brown's throat. Noticing Claiborne's presence, Cardwell said "I'm going to shoot him and he's going to die." Claiborne said "No" and turned to walk back to the car. Two gunshots were fired, and Cardwell returned to Poindexter's car. The trio drove to Cardwell's apartment, where Cardwell threw Claiborne's pistol and a six-inch steak knife into a dumpster. Brown's decomposed body was discovered in the woods approximately two months later. An autopsy revealed that Brown had sustained knife injuries to the wrist and neck, and two gunshot wounds to the back of the head.

On May 10, 1993, Cardwell was indicted in the Circuit Court for Henrico County, Virginia, on three counts of capital murder. Cardwell was further charged with abduction, robbery, and three counts of using a firearm in the commission of a felony. The court appointed Robert Geary to represent Cardwell on May 20, 1993, and trial was scheduled to commence on July 19, 1993. The trial court subsequently appointed John McGarvey to act as co-counsel for the defense.

On June 24, 1993, the court granted a defense motion for a continuance and rescheduled the trial to commence on September 7, 1993. The court cautioned the parties to bring any matters that would occasion additional delay promptly to the court's attention, and strongly implied that it would be unreceptive to further requests for continuance.

On August 3, 1993, the trial court granted Cardwell's motion to appoint Dr. Randy Thomas, a mental health expert selected by the defense, to assist in the development of evidence for possible use in the penalty phase of the capital murder proceedings. Defense counsel immediately telephoned Dr. Thomas, only to discover that he was on vacation and would not return until August 25. Upon his return, Dr. Thomas advised Cardwell's attorneys that he would need approximately one and a half months to complete his evaluation of Cardwell.

Cardwell's counsel moved for a second continuance on August 23, 1993, explaining that Dr. Thomas had been unavailable and that additional time was required to obtain an evaluation. The trial court summarily denied Cardwell's motion on August 24, and trial commenced as scheduled on September 7.

Following a two-day trial, a jury convicted Cardwell of two counts of capital murder, ¹ and all other counts as charged. When the capital sentencing phase of Cardwell's trial began on September 9, 1993, Cardwell's request for a continuance was renewed. Counsel proffered a preliminary report in which Dr. Thomas opined that further investigation was warranted with respect to Cardwell's family history, the possibility of severe abuse of drugs and alcohol, and the possibility that Cardwell had suffered brain dysfunction or a learning disability as a consequence of a childhood head injury. The court received Dr. Thomas' preliminary evaluation into the record, but refused to grant a continuance of the sentencing proceedings.

In the penalty phase, the Commonwealth sought the imposition of the death penalty on the ground that Cardwell's conduct in murdering Brown had been "outrageously or wantonly vile," or, in the alternative, because there was a probability that Cardwell was likely to commit criminal acts of violence in the future. See Va.Code § 19.2-264.2. Cardwell called only his grandmother, Donzell Cardwell, to provide evidence in mitigation. On September 9, 1993, the jury unanimously recommended a sentence of death on the basis of vileness.

The trial court reviewed the jury's recommendation pursuant to Va.Code § 19.2-264.5, which provides:

When the punishment of any person has been fixed at death, the court shall, before imposing sentence, direct a probation officer of the court to thoroughly investigate the history of the defendant and any and all other relevant facts, to the end that the court may be fully advised as to whether the sentence of death is appropriate and just.... After consideration of the report, and upon good cause shown, the court may set aside the sentence of death and impose a sentence of imprisonment for life.

At a hearing on November 10, 1993, the trial judge inquired whether defense counsel had any additional evidence to submit in connection with sentencing. Counsel declined. McGarvey explained later that he elected for strategic reasons not to complete and submit an evaluation of Cardwell's mental health to the trial court during its final review of Cardwell's death sentence. In an affidavit submitted to the Virginia Supreme Court during state habeas proceedings, McGarvey stated:

I made a strategic decision not to continue with the evaluation by Dr. Thomas. Based on my experience, I did not believe that the trial judge would have overturned the jury's sentencing decision on Dr. Thomas' findings. Had I continued with the evaluations, and submitted the information to the court at final sentencing, I ran the real risk that the trial court would have found that the information would not have made a difference, thereby undercutting my claim when I took the issue up on appeal.

The trial court imposed a sentence of death in accordance with the recommendation of the jury.

On direct appeal, the Virginia Supreme Court affirmed Cardwell's convictions and sentences. Cardwell v. Commonwealth, 248 Va. 501, 450 S.E.2d 146 (1994). The United States Supreme Court denied certiorari on May 1, 1995. Cardwell v. Virginia, 514 U.S. 1097, 115 S.Ct. 1826, 131 L.Ed.2d 747 (1995).

On July 7, 1995, the state trial court appointed counsel to represent Cardwell in state postconviction proceedings. Cardwell filed an "Incomplete Original Petition" in August 1995, and filed several motions for the appointment of experts to assist in the preparation of his petition. On December 15, 1995, the Supreme Court of Virginia granted Cardwell thirty days to amend the August 1995 petition, but denied his motions for the appointment of experts. Cardwell filed an amended petition on January 23, 1996. Included among his claims for relief was an argument that he had been denied the effective assistance of counsel by virtue of his trial counsel's failure to develop and present...