Gray v. Zook

• Decision Date: 25 November 2015
• Docket Number: 14–3.,Nos. 12–5,s. 12–5
• Citation: 806 F.3d 783
• Parties: Ricky Jovan GRAY, Petitioner–Appellant, v. David ZOOK, Warden, Sussex I State Prison, Respondent–Appellee. Ricky Jovan Gray, Petitioner–Appellant, v. David Zook, Warden, Sussex I State Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

806 F.3d 783

Ricky Jovan GRAY, Petitioner–Appellant,

v.David ZOOK, Warden, Sussex I State Prison, Respondent–Appellee.

Ricky Jovan Gray, Petitioner–Appellant,

v.David Zook, Warden, Sussex I State Prison, Respondent–Appellee.

Nos. 12–5

14–3.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 15, 2015.

Decided: Nov. 25, 2015.

ARGUED:Elizabeth Hambourger, Center for Death Penalty Litigation, Durham, North Carolina; Robert Edward Lee, Jr., Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF:Jonathan P. Sheldon, Sheldon & Flood, PLC, Fairfax, Virginia; David Weiss, Center for Death Penalty Litigation, Durham, North Carolina, for Appellant. Mark R. Herring, Attorney General of Virginia, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Opinion

Affirmed by published opinion. Judge DIAZwrote the opinion, in which Judge WYNNjoined. Senior Judge DAVISwrote a separate opinion concurring in part and dissenting in part.

DIAZ, Circuit Judge:

Ricky Jovan Gray appeals the district court's denial of his petition for a writ of habeas corpus. His appeal presents two questions. First, whether the Supreme Court of Virginia, in resolving factual disputes regarding an ineffective-assistance-of-counsel claim without an evidentiary hearing, made an “unreasonable determination of the facts” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(2). Because we find that the state court did not ignore Gray's evidence or otherwise reversibly err in resolving factual disputes on the record, we reject this first challenge. The second question is whether Gray may belatedly raise in the district court a claim of ineffective assistance of trial counsel under the Supreme Court's decision in Martinez v. Ryan,––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). We find that the claim Gray seeks to raise was presented to, and decided by, the state court. Therefore, it is not subject to de novo review in the district court under Martinez.

Accordingly, we affirm the judgment of the district court.

I.

A.

On the morning of January 1, 2006, in the course of a home burglary, Gray murdered Bryan and Kathryn Harvey and their two young daughters, Ruby and Stella, by tying them up in their basement and then cutting their throats, stabbing them, striking them with a claw hammer, and setting fire to their home. Although Gray was with two accomplices, Ray Dandridge and Ashley Baskerville, Gray confessed to having committed all of the killings. The police officer who took Gray's confession, Detective Howard Peterman, testified at trial to the circumstances in which Gray confessed. He also read the confession to the jury.

The trial was conducted in two phases. In the guilt phase, the jury convicted Gray of five counts of capital murder. In the penalty phase, the Commonwealth introduced evidence of several other killings Gray had committed near the time of the Harvey murders, including bludgeoning his wife with a lead pipe two months earlier and suffocating Baskerville and her mother and stepfather a week after the Harvey murders. Gray offered evidence of his parents' abuse and neglect during his childhood, his repeated sexual abuse at the hands of his brother from a very early age, and Gray's consistent drug use, beginning when he was young. He also offered expert testimony to connect this evidence to his later violent behavior. Dr. David Lisak, a psychologist who did not examine Gray, opined on the potential connection between Gray's childhood abuse and his violent behavior as an adult. Dr. Mark Cunningham, a clinical and forensic psychologist who did examine Gray, testified that Gray was unlikely to be seriously violent in prison.

The jury issued verdicts of life imprisonment on three of the counts and verdicts of death for the murders of Ruby and Stella, finding the aggravating factor of “vileness.” On direct appeal, the Supreme Court of Virginia affirmed Gray's convictions and death sentences.

B.

Gray then sought state habeas relief in the Supreme Court of Virginia.¹Relevant here, Claim III of that petition alleges that Gray's trial counsel failed to make a reasonable investigation of his confession. According to Gray, he repeatedly asked police officers for an attorney and a phone call, but was denied both. Gray also asserts that he told the police that his drug use on the day of the crime, especially his use of PCP, left him unable to remember the day's events. To fill the gaps in his memory, Gray says, police officers showed him statements made by his accomplice Dandridge, and he adopted Dandridge's account as his own. Had Gray's trial attorneys sufficiently investigated these allegations, Gray contends, they could have had the confession suppressed or, at least, sowed doubt in the jury's mind as to the extent of Gray's participation in the murders. The warden moved to dismiss, attaching a joint affidavit from Gray's trial attorneys.

The Supreme Court of Virginia dismissed Gray's habeas claims, save one not relevant here. In dismissing Claim III, the court held that Gray had shown neither that his trial counsel performed unreasonably, nor that he suffered prejudice from deficient performance, the two requirements under Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court supported its holding with the following findings of fact, relying heavily on the affidavit of Gray's trial attorneys:

The record, including the affidavit of counsel, demonstrates that petitioner insisted to counsel that he knew what he was doing when he committed the murders and that “PCP could not be to blame.” Furthermore, counsel spoke to every officer involved in petitioner's arrest, including Detective Peterman, and determined that petitioner was not provided any details from Dandridge's statement before or during his statement to the police. The affidavit of counsel also demonstrates that petitioner never informed counsel that Detective Peterman had “fed” him the details of the crimes or of Dandridge's statements to police and that counsel looked for but could not find any evidence that would have supported a motion to suppress petitioner's statements to police.

Gray v. Warden of Sussex I State Prison,281 Va. 303, 707 S.E.2d 275, 284 (2011).

C.

Gray next filed a federal habeas petition, arguing with respect to Claim III²that the Supreme Court of Virginia's dismissal of the claim was based on an unreasonable determination of the facts under AEDPA's § 2254(d)(2). The district court determined that, although the state court made credibility determinations and weighed the parties' affidavits without an evidentiary hearing, “Section 2254(d)affords wide latitude to state courts in fashioning state habeas procedures and ... the procedures adopted by the state court were not, within the context of this case, inherently unreasonable or unreliable.” Gray v. Pearson,No. 1:11–cv–630, 2012 WL 1481506, at *12 (E.D.Va. Apr. 27, 2012). Considering “the totality of the state court record,” the district court concluded that “the state court's determinations of fact were not unreasonable.” Id.

D.

After Gray filed his federal habeas petition, but before the district court had ruled on it, the Supreme Court decided Martinez v. Ryan. Martinezprovides a narrow exception to the general rule, stated in Coleman v. Thompson,501 U.S. 722, 752–53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), that errors committed by state habeas counsel do not provide cause to excuse a procedural default. The Supreme Court summarized its holding as follows:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Martinez,132 S.Ct. at 1320.

Three aspects of the decision are notable here. First, Martinezpermits a petitioner to excuse certain procedurally defaulted ineffective-assistance-of-trial-counsel claims. But if claims are not procedurally defaulted—that is, they were properly presented to the state court—then Martinezdoes not apply. See Escamilla v. Stephens,749 F.3d 380, 394 (5th Cir.2014)(holding that “Martinezdoes not apply to claims that were fully adjudicated on the merits by the state habeas court because those claims are, by definition, not procedurally defaulted”). Second, because a petitioner raising a Martinezclaim never presented the claim in state court, a federal court considers it de novo, rather than under AEDPA's deferential standard of review. See§ 2254(d)(providing review standards for “any claim that was adjudicated on the merits in State court proceedings”). Finally, a Martinezclaim requires a showing that state habeas counsel was ineffective.

Because Gray's state habeas attorneys also represented him in the federal proceedings, a conflict of interest arose regarding counsel's ability to identify and argue potential Martinezclaims. Gray therefore moved for appointment of new counsel. The district court denied the motion.

The district court also denied Gray's habeas petition in full. Gray,2012 WL 1481506, at *20. The district court then certified two questions to this court: first, whether the state habeas court's dismissal of Claim III was based on an unreasonable determination of the facts; and second, whether Martinezentitled Gray to the appointment of independent counsel. We reserved the first question and answered the second in the affirmative, directing the district court to appoint independent counsel to explore the existence of Martinezclaims. Gray v. Pearson,526 F. App'x 331, 335 (4th Cir.2013).

After the district court appointed new counsel and...