Walker v. True

• Decision Date: 25 March 2005
• Docket Number: No. 04-22.,04-22.
• Citation: 401 F.3d 574
• Parties: Darick Demorris WALKER, Petitioner-Appellant, v. Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

401 F.3d 574

Darick Demorris WALKER, Petitioner-Appellant, v. Page TRUE, Warden, Sussex I State Prison, Respondent-Appellee.

No. 04-22.

United States Court of Appeals, Fourth Circuit.

Argued: February 2, 2005.

Decided: March 25, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Edward Nathan Siskel, WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P., Washington, D.C., for Appellant. Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

On Brief:

David P. Donovan, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Mclean, Virginia; David W. Ogden, Lara Ann Englund, Eric J. Hougen, Kurt W. Meyers, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, D.C., for Appellant. Jerry W. Kilgore, Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge WILLIAMS joined. Judge GREGORY wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

Appellant Darick Demorris Walker was convicted by a jury of capital murder and sentenced to death in a Virginia state court. In his federal habeas petition, he challenges his death sentence on the grounds that his trial counsel was ineffective for failing to investigate evidence of the mitigating factor of mental incapacity due to organic brain dysfunction or mental retardation. We granted a certificate of appealability to review the district court's dismissal of Walker's habeas petition. Because we conclude, as did the district court, that the state court's application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was not unreasonable, we affirm.

I.

Based on the jury's verdict, the Virginia Supreme Court found the following facts surrounding Walker's crimes. On November 22, 1996, Walker kicked in Stanley Beale's locked front door, and entered Beale's apartment yelling, "[W]hat you keep coming up to my door, what you come looking for me for?" Walker v. Virginia, 258 Va. 54, 515 S.E.2d 565, 568 (1999). When Beale told Walker that he did not know who Walker was or where he lived, Walker began shooting at Beale as the other residents of the apartment hid in another room. Id. Walker shot Beale three times, killing him. Id.

On June 18, 1997, Walker kicked open the door to the residence of Andrea Noble and Clarence Threat. Id. at 569. Walker hit Noble with the gun and shot Threat in the leg. Id. After Walker and Threat exchanged words, Walker began to shoot Threat again. Id. Walker shot Threat a total of seven times. Threat died as a result. Id.

Walker was indicted in Virginia state court for capital murder, for four counts of the use of a firearm in the commission of a felony, and for two counts of burglary. J.A. 301. After a jury trial, Walker was convicted on all counts. J.A. 301.

Through the presentation of mitigating evidence at Walker's sentencing hearing, his trial counsel, Rebecca Norris, sought to establish that Walker was not a future danger because he responded well when placed in structured environments. J.A. 19-21, 296. She also attempted to demonstrate that his family cared whether he lived or died. J.A. 295. In support of her mitigation theory, Norris entered Walker's school records into evidence. Psychological reports included in the school records described Walker as a "slow learner" or "very slow learner," and suggested that he had a learning disability or attention deficit disorder. J.A. 151-53, 160, 203-05. Norris argued that the records revealed that, despite Walker's problems, his grades improved when he was placed in special education classes. J.A. 296. Norris also presented as witnesses Walker's jailers, who testified that he was a well-behaved inmate. J.A. 296. Finally, Norris presented Walker's family members, who testified about their affection for Walker. J.A. 296.

After a sentencing hearing, the jury recommended that Walker receive the death penalty for capital murder, life imprisonment for each burglary, and eighteen years of imprisonment for the firearms offenses. J.A. 301. The trial court sentenced Walker in accordance with the jury's recommendation, id., and Walker's sentence was upheld on direct appeal. Walker v. Virginia, 258 Va. 54, 515 S.E.2d 565 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000).

In his subsequent state post-conviction proceedings, Walker claimed that his Sixth Amendment right to counsel was violated by Norris' unreasonable failure to investigate adequately possible indications of organic brain deficiency or mental retardation referenced in a 1984 psychological examination. J.A. 238-40, 303. Walker argued that Norris' failure to investigate resulted in her failure to discover and present evidence of Walker's "severe mental impairment." J.A. 45. In support of his claim, Walker offered an affidavit from Dr. Scott Sautter which described Walker's brain dysfunction as "chronic" and concluded that his non-verbal judgment and reasoning were in the first percentile. J.A. 233.

Walker's claim thus relied principally on the 1984 psychological evaluation, which was included in his school records. This report described Walker as making an error that "is most commonly found in protocols of individuals who are mentally retarded or who have some type of organic deficiency," and as drawing a picture that "indicate[d] either psychological regression with grossly impaired reality contact or organic involvement." J.A. 167-69. The evaluation recommended that Walker "receive a complete psychological evaluation in one year to evaluate his intellectual development and to rule out organic or psychotic disturbances that might be interfering with his adjustment." J.A. 169.

Although she possessed this limited evidence of the mitigating factor of mental incapacity due either to mental retardation or to organic brain dysfunction, Norris did not argue this mitigating factor to the jury. She concluded that the evidence in favor of organic brain deficiency was not likely to be persuasive, because there was only a single suggestion of such a problem in all of Walker's records, and neither her court-appointed expert, nor the facts of the crime, nor the testimony of witnesses supported that Walker suffered from such a problem. J.A. 294. In addition, Norris believed that arguing organic dysfunction would undermine the remainder of her mitigation strategy by supporting the government's argument that Walker would be a future danger in prison. J.A. 294. Likewise, Norris did not present evidence that Walker could possibly be mentally retarded because Walker's court-appointed psychologist, Dr. Randy J. Thomas, informed Norris that, based on his tests, Walker had an I.Q. of 86 and was thus not mentally retarded. J.A. 293.

Norris did not present as mitigating evidence the testimony of Dr. Thomas. Norris later alleged, and the Virginia Supreme Court found, that Dr. Thomas told Norris that he believed that Walker was a sociopath. J.A. 239. Dr. Thomas did not consider the 1984 psychological evaluation in reaching this conclusion, because Norris did not obtain the school records that included that report until three days before trial. J.A. 222. By the time Norris received these records, she had already determined that Dr. Thomas' belief that Walker was a sociopath would render him ineffective as a witness in mitigation, and had thus removed him as an expert witness. J.A. 294. On post-conviction review, the state court concluded that the delay in Norris' receipt of the records stemmed from the "recalcitrance of Walker and his mother." J.A. 239.

The Supreme Court of Virginia rejected Walker's ineffective assistance claim on the merits, concluding that it "fail[ed] to satisfy the `performance' prong of the two-part test set out in Strickland." J.A. 239-40. The Supreme Court of Virginia dismissed Walker's petition and the Supreme Court of the United States denied Walker's petition for writ of certiorari. Id.; Walker v. True, 534 U.S. 1003, 122 S.Ct. 481, 151 L.Ed.2d 395 (2001).

Walker then filed a petition for writ of habeas corpus in federal district court, alleging numerous grounds for relief, all of which the district court dismissed. J.A. 303-55. We denied a certificate of appealability as to the claim relevant here, i.e., that trial counsel unreasonably failed to investigate mitigating evidence regarding his organic brain disorder or mental retardation. Walker v. True, 67 Fed.Appx. 758, 763 (4th Cir.2003). The Supreme Court thereafter vacated our opinion and directed that Walker's case be reconsidered in light of Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Upon remand to the district court, the district court again dismissed Walker's habeas petition on the grounds that counsel's failure to investigate was not unreasonable. Walker appealed the district court's dismissal of his petition, and we granted a certificate of appealability to review Walker's Wiggins claim.

II.

The Virginia state court concluded that Walker was not entitled to relief on his ineffective assistance claim because Norris had extensively investigated possible mitigating evidence and presented a mitigation case to the jury based on tactical decisions that were the product of that extensive investigation. J.A. 238-40; see also J.A. 527-28, 541. Because Walker's claim was adjudicated by the state court on the merits, he is entitled to a writ of habeas corpus only if he satisfies the conditions set forth in 28 U.S.C. § 2254(d).¹ As relevant here, section 2254(d)(1) permits the writ to be granted only if the state court adjudication 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."²

A decision is an "unreasonable application" of Supreme Court precedent under section...