WIDENER, and HALL, Circuit Judges.
WIDENER, Circuit Judge:
Syvasky Lafayette Poyner
challenges the judgments of three Virginia state
courts, each sentencing him to death. The United
States District Court for the Eastern District of
Virginia denied each of Poyner's three petitions for
writs of habeas corpus. We affirm.
Poyner was convicted of five
counts of capital murder after three separate trials
in the respective circuit courts of the Cities of
Williamsburg, Hampton, and Newport News, Virginia.
On June 6, 1984, Poyner was
convicted after a jury trial in the Circuit Court of
the City of Williamsburg for the capital murder of
Clara Louise Paulette and Chestine Brooks. The
Williamsburg jury on each count fixed Poyner's
penalty at death on the statutory ground that there
was a probability that he "would commit criminal
acts of violence that would constitute a continuing
serious threat to society." Va.Code Ann. §
19.2-264.2. The Williamsburg court entered judgment
on the jury's verdicts and accepted its
recommendations of death.
trial took place on June 13, 1984, before the
Circuit Court of the City of Hampton sitting without
a jury. The Hampton court found Poyner guilty of the
capital murder of Carolyn J. Hedrick and Joyce M.
Baldwin. The court, after hearing testimony
regarding the aggravating and mitigating
circumstances surrounding the crimes, sentenced him
to death on each count of capital murder. In fixing
Poyner's sentence at death the Hampton court found
both that he posed a continuous threat to society
and that his acts were "outrageously vile, horrible,
and inhuman" and "involved depravity of mind and
aggravated battery to the victims." Va.Code Ann. §
Poyner's final trial was before a
jury in the Circuit Court of the City of Newport
News. On July 11, 1984, that jury convicted him of
the capital murder of Vicki Ripple. Following the
sentencing phase of the trial, the jury found that
Poyner's conduct and history indicated a probability
that he would pose a continuous serious threat to
society. Consequently, the jury fixed Poyner's
penalty at death, and the trial court thereafter
accepted the jury's recommendation and entered
judgment on its verdict.
Poyner appealed all five
convictions and death sentences to the Supreme Court
of Virginia. That court affirmed each conviction and
death sentence, Poyner v. Commonwealth, 229 Va. 401,
329 S.E.2d 815 (1985), and the United States Supreme
Court denied his petition for a writ of certiorari.
Poyner v. Virginia,
474 U.S. 865 , 106 S.Ct. 189, 88 L.Ed.2d 158 (1985).
Poyner then sought collateral
review of these convictions in the Virginia state
courts. Petitions for writs of habeas corpus were
filed on Poyner's behalf in each of the three
convicting courts. Each court denied the respective
petition after hearing argument but without holding
evidentiary hearings, and the Supreme Court of
Virginia, finding no error in any of the denials,
refused Poyner's petitions for appeal. The United
States Supreme Court subsequently denied his second
petition for a writ of certiorari. Poyner v. Bair,
488 U.S. 871 , 109 S.Ct. 185, 102 L.Ed.2d 154 (1988).
Poyner next sought
relief from the federal courts. On January 12, 1989,
he filed three separate petitions for writs of
habeas corpus in the United States District Court
for the Eastern District of Virginia. The district
court referred these petitions to a United States
Magistrate who, in three lengthy and thorough
reports, recommended that all of Poyner's petitions
be denied and dismissed.
objections to the Magistrate's reports. By three
final orders dated December 21, 1990, the district
court adopted and approved the findings and
recommendations in the magistrate's reports, denied
Poyner's objections, and dismissed his petitions.
Neither the magistrate nor the district court held
an evidentiary hearing as Poyner had requested.
Poyner then moved the district court to alter or
amend those final orders under Fed.R.Civ.P. 59(e).
The district court denied that motion, and these
A summary of the conduct for
which Poyner was sentenced to death is necessary to
the discussion of his claims on appeal. The record
reveals that Poyner's actions during an eleven-day
period in 1984 left five women from the Tidewater
area of Virginia dead, all victims of gunshot wounds
to the head.
Poyner's robbery and murder spree
began around noon on January 23, 1984, when he was
riding around the City of Hampton in an automobile
that he had stolen earlier that morning. Poyner
entered a hair salon, which he chose "just on
impulse," with the apparent intention of robbing the
The clerk, Joyce M. Baldwin,
mistook Poyner for a customer and began showing him
various hair care products. In response, Poyner
pulled a .38 caliber revolver and demanded money.
She complied, opening the cash register and placing
between forty and sixty dollars in a bag. Poyner
then ordered her to walk to the back of the store.
Now crying and begging him to spare her life, she
turned her back to Poyner and began to walk. At that
moment Poyner shot her in the back of the head from
a range of approximately four to six feet, mortally
Seven days later, around noon on
January 30, 1984, Poyner left his home in the City
of Newport News, stole another automobile, and drove
to the City of Williamsburg. Once in Williamsburg,
he selected a motel, again "just on impulse," and
again for the apparent purpose of robbing the clerk.
There Poyner found an elderly woman, Clara Louise
Paulette, the manager of the motel. He pointed his
gun at Mrs. Paulette and demanded money. She told
Poyner he had "hit her at a bad time," but she gave
him what money she had, approximately forty dollars.
While the armed
robbery of Mrs. Paulette was in progress, Chestine
Brooks, a housekeeper at the motel, walked into an
adjacent room and saw what was happening in the
motel office. When Poyner saw Mrs. Brooks, he
ordered her and Mrs. Paulette into a kitchen area
near the office and forced them to turn and face
away from him. He then shot both women in the backs
of their heads from close range, killing them.
Poyner killed again the next day,
January 31, 1984, this time in the City of Newport
News. That morning Poyner stole yet another
automobile and proceeded to ride around the streets
of Newport News. At around noon he passed an ice
cream store in which he observed Vicki Ripple
working alone. Poyner parked the car and entered the
store, where Miss Ripple was cleaning up. He pointed
his gun at her and demanded money, causing her to
put the money from the cash register into a bag and
hand it to him. Miss Ripple then walked into the
corner of the store and covered her head. Poyner
responded by shooting her in the back of the head
and leaving her to die.
Poyner walked from his home in
Newport News to Hampton on the morning of February
2, 1984. At around noon that day, he observed
Carolyn J. Hedrick emerge from a store and begin to
get into her car. He approached Mrs. Hedrick with a
gun in his hand and told her that he wanted her
money and that she was to get into her car. She
screamed and appeared nervous, but she nonetheless
complied and got into the passenger seat of her car.
Poyner got into her car, began
driving, and ordered her to remove her clothing,
which she did. Poyner stated that he did this so
that she would be less likely to attempt escape by
jumping out of the car. He continued driving until
they reached a parking lot behind a church, where he
proceeded to rape her.
After raping her, Poyner shot her
in the left side of her head as she sat in the
passenger seat of her car, crying and begging him
not to shoot her. After taking no more than forty
dollars from her pocketbook, Poyner pushed her nude
body from the car and drove away. That afternoon
Poyner continued driving around the Newport News
area in Mrs. Hedrick's car, at one point stopping at
a local barber shop, where he attempted to sell some
candy that he had found in the Hedrick car.
On February 3,
1984, Newport News police officers discovered the
Hedrick car parked in the vicinity of the church
parking lot where her body had been found. Poyner's
fingerprints were found inside the car, and
eyewitnesses reported seeing him driving the car
during the afternoon of the Hedrick murder. Poyner
was arrested on February 4, 1984 by detectives of
the Hampton police department and thereafter was
indicted for the capital murder of Carolyn J.
Also on February
4, a search warrant for Poyner's home was obtained.
The resulting search yielded the keys to Mrs.
Hedrick's car and a .38 caliber revolver that
forensic analysis later established as the weapon
that killed Mrs. Hedrick. Within hours of being
taken into custody for the Hedrick murder, Poyner
confessed to killing Mesdames Baldwin, Paulette,
Brooks, Ripple, and Hedrick.
During the course of his
confession on February 4, 1984, Poyner told the
interrogating detectives that he chose only women as
his victims because women are afraid of guns and are
easier to rob than men. Poyner further stated that
he killed his victims so that they would be unable
to identify him later, as during previous jail terms
his fellow prisoners had told him that they wished
they had killed the people they had robbed. Poyner
identified various marital difficulties as his only
motivation for these crimes.
Having described the events that
led to Poyner's convictions and death sentences, we
now turn to his claims for relief. In urging
reversal of the district court's denial of his
petitions Poyner asserts the following grounds: (I)
that the state trial courts erroneously admitted
certain confessions that were obtained from Poyner
in violation of his rights under Miranda v. Arizona;
(II) that the performance of his trial counsel was
so ineffective as to deny him his rights to counsel
under the sixth and fourteenth amendments to the
United States Constitution; (III) that Virginia's
system of appointing counsel for indigent defendants
violated his right to due process under the fifth
and fourteenth amendments to the United States
Constitution; and (IV) that the district court erred
in refusing to grant him an evidentiary hearing on
his Miranda and ineffective assistance claims. We
now address these claims.
contends that his convictions were the result of
confessions obtained in violation of his rights
under the fifth amendment as defined in Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), and its progeny. The specific sequence of
events surrounding the arrest and interrogation of
an accused is particularly relevant where Miranda
issues are raised; thus, a summary of those events
Upon his arrest
during the early morning hours of February 4, 1984,
Poyner was brought to the Newport News police
station. There he was placed into the custody of
Detective Spinner of the Newport News police
department and Detective Browning of the Hampton
police department. Upon Poyner's arrival, Detective
Spinner orally advised him of his Miranda rights
before any interrogation took place and before
Poyner made any statements to anyone. Poyner told
Spinner and Browning that he understood his rights.
Next, Spinner and Browning took
Poyner before a Virginia Magistrate, who advised him
of the charges against him and that he would be held
Poyner then was taken to another room in the police
station, where Spinner again advised him of his
rights to remain silent and to have an attorney
present before any questioning. Poyner again
indicated that he understood his rights.
Spinner then informed Poyner that
the police were aware of Poyner's involvement with
Mrs. Hedrick's car and that Poyner had been seen
trying to sell candy from that car on the afternoon
of her murder. Poyner responded by saying "Didn't
you say I have a right to an attorney," to which
Spinner replied "Yes, you do, that is correct."
Momentarily believing that Poyner had intended to
invoke his right to counsel, Spinner and Browning
began to rise from their seats and terminate the
interrogation. As Spinner and Browning rose, Poyner
said "Let me tell you about the car."
Spinner and Browning then sat
back down and Poyner proceeded to tell the
detectives that he had been in the neighborhood
where witnesses had reported him and that he had
given a man there some candy. Browning's next words
were "Did you kill her?", to which Poyner responded
"Yes." In response to further questioning by the
detectives, Poyner described in detail his abduction
and murder of Carolyn Hedrick.
initially attempted to deceive the detectives as to
the location of his crimes, he ultimately agreed to
show Browning and Spinner the route that he had
taken during his abduction and murder of Carolyn
Hedrick. While Poyner and the detectives were
retracing this route, other detectives were
executing a search warrant at Poyner's home. These
detectives informed Spinner and Browning that a .38
caliber revolver had been found underneath Poyner's
Upon returning to the police
station at approximately 5:35 a.m., the detectives
informed Poyner of their discovery of the revolver.
The detectives told him that "the gun would be
checked against the other murders in Newport News,
Hampton and Williamsburg, and if [Poyner] knew
anything about them, to tell [the detectives] now."
To this Poyner responded "I did them all." He then
made a brief statement on audiotape in which he
described each of his five murders. Following this
confession Poyner telephoned and then met with his
wife, and finally was returned to jail at 7:20 a.m.
Detectives Spinner and Browning
interviewed Poyner again at 8:50 p.m. the same day.
At this time Poyner read and signed a written rights
waiver form that Spinner had prepared. Poyner then
proceeded to confess to each murder, and his
confession was recorded on videotape. This videotape
or a transcript thereof was later introduced into
evidence, over Poyner's objection, in both the guilt
and penalty phases of his three trials.
We note at the outset that the
Virginia state courts' written findings of the
foregoing historical facts are entitled to the
presumption of correctness mandated by 28 U.S.C.
2254(d), as we are of opinion that Poyner has failed
to establish the applicability of any of the
exceptions found in § 2254(d)(1)-(8), and we further
are satisfied that the record amply supports the
findings of fact relevant to Poyner's fifth
amendment Miranda claim.
Whether the confession was obtained in a manner
consistent with the Constitution is, however, a
legal determination which we review de novo. See
Miller v. Fenton, 474 U.S. 104, 109-12, 106 S.Ct.
445, 448-51, 88 L.Ed.2d 405 (1985); Wilson v.
Murray, 806 F.2d 1232, 1235-36 & n. 2 (4th
Cir.1986), cert. denied,
484 U.S. 870 , 108 S.Ct. 197, 98 L.Ed.2d 149 (1987).
that his statement "Didn't you tell me I had the
right to an attorney?" constituted a request for
counsel that, by virtue of Miranda and Edwards v.
Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378 (1981), should have ceased all interrogation
until an attorney was present on his behalf. Because
the detectives continued their questioning after
this statement, Poyner argues that all of his
confessions should have been excluded from evidence
at trial. Both the district court and the Virginia
Supreme Court rejected this argument and held that "Didn't
you tell me I had the right to an attorney?" was at
most only a request for clarification or reiteration
of Poyner's Miranda rights and not a request for an
attorney. See Poyner, 229 Va. at 410, 329 S.E.2d at
A suspect's right to have counsel
present under Miranda and Edwards attaches only when
the suspect invokes that right during custodial
interrogation by indicating in some manner that he
wishes to consult with an attorney before speaking.
See Miranda, 384 U.S. at 444-45, 86 S.Ct. at
1612-13. Assuming that the suspect is properly
informed of his Miranda rights and makes a knowing,
intelligent, and voluntary waiver of those rights,
the police may interrogate the suspect without
providing an attorney so long as the suspect does
not ask for one. See Patterson v. Illinois, 487 U.S.
285, 290-91, 108 S.Ct. 2389, 2393-94, 101 L.Ed.2d
In this case it is undisputed
that Poyner was advised of his Miranda rights and
that he indicated that he understood them. The
question, then, is whether the words "Didn't you
tell me I had the right to an attorney?" constitute
an invocation of the right to counsel under Miranda.
We hold that they do not.
It appears that neither the
Supreme Court nor this court yet has had occasion to
consider the effect of a suspect's statement that,
like Poyner's, mentions the Miranda right to counsel
without suggesting any desire to speak with an
attorney at that moment. However, in Connecticut v.
Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920
(1987), the Court made clear that the ordinary
meaning of a suspect's words were to be given effect
and that an expansive interpretation of a request
for counsel is required only "where the defendant's
words, understood as ordinary people would
understand them, are ambiguous." Barrett, 479 U.S.
at 529, 107 S.Ct. at 832. Moreover, other courts of
appeal that have considered the effect of such
statements have held that the mere mention by a
suspect of the word "attorney" is not sufficient to
invoke the right to counsel.
For example, in
United States v. Jardina, 747 F.2d 945 (5th
Cir.1984), cert. denied, 470 U.S. 1058 , 105
S.Ct. 1773, 84 L.Ed.2d 833 (1985), the
suspect stated during interrogation that he was "interested
in seeing what type of deal he could arrange between
the government and his attorney." Jardina, 747 F.2d
at 948. The court correctly noted that once a
suspect makes an equivocal request for an attorney,
all interrogation must cease except that which is
necessary to clarify whether or not the accused
wants an attorney. Jardina, 747 F.2d at 948.
The court held,
however, that the suspect's statement was not an
equivocal request for an attorney; rather, it was
not a request at all. Thus, continued interrogation
did not violate the suspect's Miranda rights. In so
holding the court stated that "[t]he word 'attorney'
has no talismanic qualities. A defendant does not
invoke his right to counsel any time the word falls
from his lips. Jardina's statements and actions did
not invoke any present right to counsel." Jardina,
747 F.2d at 949 (citations omitted); see also Norman
v. Ducharme, 871 F.2d 1483, 1486 (9th Cir.1989),
cert. denied, 494 U.S. 1031 , 110 S.Ct. 1483,
108 L.Ed.2d 619 (1990).
seeking clarification of his right to an attorney
was even less suggestive of a present intention to
speak with an attorney than were the statements in
Jardina. We find the reasoning of Jardina to be
persuasive on this point; therefore, we are
convinced that the district court correctly held
that Poyner did not request an attorney during his
Our holding that
Poyner did not make even an equivocal request for
counsel is bolstered by Poyner's actions immediately
following his statement inquiring about his right to
counsel. When Poyner said "Didn't you tell me I had
the right to an attorney?", Detectives Spinner and
Browning, momentarily thinking that the
interrogation had ended, began to get up from their
seats and leave the room.
At this moment
Poyner interrupted their departure by saying "Let me
tell you about the car." Poyner's obvious desire to
prevent the detectives from leaving the room and to
continue the questioning is wholly inconsistent with
his present contention that he wanted to have an
attorney present before further questioning.
Poyner insists that the decision
in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83
L.Ed.2d 488 (1984), prevents any consideration of
his subsequent statements when determining whether
he in fact requested counsel. Smith involved a
suspect who had been arrested on charges of armed
robbery. The detective interrogating Smith concluded
his recitation of the Miranda warnings with the
words "You have the right to consult with a lawyer
and to have a lawyer present with you when you're
being questioned. Do you understand that?", to which
Smith replied "Uh, yeah. I'd like to do that."
Smith, 469 U.S. at 93, 105 S.Ct. at 491 (emphasis in
opinion). After Smith made this unequivocal request
for counsel, the detectives continued asking
questions until he agreed to speak to the detectives
without obtaining an attorney. Smith, 469 U.S. at
93-94, 105 S.Ct. at 491-492.
Smith was convicted on the
strength of his ensuing confession, and the Illinois
state court affirmed his conviction on the grounds
that his statements following his apparent request
for counsel demonstrated that he in fact had not
intended to invoke his Miranda right. The Supreme
Court reversed and held that a suspect's responses
to subsequent interrogation may not be used to cast
doubt on the clarity of a prior unambiguous request
for counsel. Smith, 469 U.S. at 98-100, 105 S.Ct. at
The case at bar,
in contrast, presents the entirely distinct
situation of a statement that is not a request for
counsel at all, equivocal or otherwise. In this
situation, the substance of the colloquy between
police officer and suspect taken as a whole is
clearly relevant to a determination of whether the
suspects' fifth amendment rights have been violated.
Moreover, the interests sought to be protected by
the Smith decision--that the police should not be
allowed to "wear down" the accused by post-request
badgering--simply are not implicated where a request
for clarification of the right to counsel is
immediately followed by both volunteered and
responsive incriminating statements. Poyner's
reliance on Smith is thus unavailing.
Poyner's final argument in
support of his contention that his statement
amounted to a request for an attorney rests on the
fact that Detectives Spinner and Browning concededly
believed that Poyner had requested an attorney. When
Poyner said "Didn't you tell me I had the right to
an attorney?", the detectives rose from their seats,
believing Poyner had just terminated the
interrogation. According to Poyner, the detectives'
subjective, momentary impression that Poyner wanted
to cease the questioning and speak to a lawyer is
somehow dispositive of the ultimate legal
determination of whether he did in fact make such a
However, we find
no support in the post-Miranda cases for such a rule.
To the contrary, in the closely-related context of
determining when a suspect has effectively waived
his Miranda rights, the Supreme Court has stated
that "the state of mind of the police is irrelevant
to the question of the intelligence and
voluntariness of respondent's election to abandon
his rights." Moran v. Burbine, 475 U.S. 412, 423,
106 S.Ct. 1135, 1142, 89 L.Ed.2d 410 (1986).
and Browning in this case displayed an admirable
degree of solicitude for Poyner's Miranda rights,
and we decline the invitation to adopt an analysis
that would penalize police officers for erring on
the side of even excessive caution in observing the
suspect's rights during custodial interrogation.
In addition to holding that
Poyner did not request an attorney during his
initial interrogation, both the district court and
the Virginia Supreme Court held that, even assuming
arguendo that a request was made, Poyner's
subsequent volunteered statements constituted a
reinitiation of the interrogation and a waiver of
the Miranda right to counsel. Poyner v. Commonwealth,
229 Va. at 411, 329 S.E.2d at 823.
We are in agreement with the
district court that the facts of this case support
the admission of Poyner's confession on either the
first stated ground that no request was made or on
the ground that, in any event, Poyner waived his
fifth amendment rights by his volunteered statements
following the supposed request for counsel.
The seminal case in the area of
reinitiation of interrogation following a suspect's
invocation of his Miranda right to counsel is
Edwards v. Arizona, supra. Edwards announced the
rule that "an accused, ... having expressed his
desire to deal with the police only through counsel,
is not subject to further interrogation by the
authorities until counsel has been made available to
him, unless the accused himself initiates further
communication, exchanges, or conversations with
police." Edwards, 451 U.S. at 484-85, 101 S.Ct. at
1884-85 (emphasis supplied).
The Edwards opinion made clear,
however, that statements volunteered by a suspect
after requesting counsel are fully admissible, and
in dictum the Court suggested that further
statements elicited by resumed police interrogation
likewise will be admissible, provided that, under
the totality of the circumstances, the suspect
voluntarily, knowingly, and intelligently waived his
right to counsel. Edwards, 451 U.S. at 486 n. 9, 101
S.Ct. at 1885 n. 9.
affirm the notion that whether the suspect
voluntarily, knowingly, and intelligently waived his
right to counsel is a separate inquiry from the
question of whether the suspect reinitiated
interrogation. See Smith v. Illinois, 469 U.S. 91,
95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984). The
Virginia courts, including the Supreme Court, found
that Poyner volunteered the words "Let me tell you
about the car", and we agree with the district court
that this statement satisfied the reinitiation
component of the Edwards analysis. In Oregon v.
Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 2835,
77 L.Ed.2d 405 (1983), a plurality of the Court held
that a suspect's inquiry "Well, what's going to
happen to me now?" following a request for counsel
was sufficient to constitute reinitiation, and we
believe that Poyner's statement was even more
indicative of a desire to resume discussion with the
detectives than was Bradshaw's.
Cf. United States v. Hines, 605 F.2d 132 (4th
Cir.1979), cert. denied, 444 U.S. 1046 , 100
S.Ct. 735, 62 L.Ed.2d 733 (1980) (volunteered
statements not inadmissible under Miranda or the
sixth amendment). Thus, our task is to determine
whether, under the totality of the circumstances,
Poyner effectively waived his right to counsel so as
to make admissible his further statements made in
response to the detectives' renewed questioning.
Whether a waiver of the right to
counsel was voluntary is measured by the same
standard as governs voluntariness determinations in
the confession context. Colorado v. Connelly, 479
U.S. 157, 169-70, 107 S.Ct. 515, 522-23, 93 L.Ed.2d
473 (1986). Voluntariness here means that the waiver
must have been "the product of a free and deliberate
choice rather than intimidation, coercion, or
deception" on the part of the police. Moran, 475
U.S. at 421, 106 S.Ct. at 1140.
The record in this case is devoid
of any evidence of such police misconduct. As we
have already noted, the detectives here properly
advised Poyner of his Miranda rights and acted with
at least abundant caution by breaking off the
interrogation at Poyner's mere mention of the word "attorney."
Thus we are convinced that Poyner's waiver of his
right to counsel by initiating the conversations and
then responding to renewed questioning was voluntary
within the meaning of Edwards.
Whether a waiver
of the right to counsel was knowing and intelligent
is determined by an examination of the totality of
the circumstances surrounding the waiver. Moran, 475
U.S. at 421, 106 S.Ct. at 1140. The factors relevant
to this inquiry may include the suspect's
intelligence and education, see Stawicki v. Israel,
778 F.2d 380, 382-84 (7th Cir.1985), cert. denied,
479 U.S. 842 , 107 S.Ct. 150, 93 L.Ed.2d 91 (1986),
age and familiarity with the criminal justice system,
see McFadden v. Garraghty, 820 F.2d 654, 661 (4th
Cir.1987); United States v. Cruz Jimenez, 894 F.2d
1, 8 (1st Cir.1990), the proximity of the waiver to
the giving of the Miranda warnings, United States ex
rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th
Cir.), cert. denied, 479 U.S. 888 , 107 S.Ct.
284, 93 L.Ed.2d 259 (1986), and the "necessary
fact that the accused, not the police, reopened the
dialogue with the authorities." Edwards, 451 U.S. at
486, n. 9, 101 S.Ct. at 1885 n. 9.
An examination of
the circumstances of Poyner's initial interrogation
with these factors in mind leads us to the
conclusion that Poyner's waiver of the right to
counsel was knowing and intelligent. First, though
Poyner's measured I.Q. of between 79 and 85 comes
within the "dull normal" category, he nevertheless
completed the eighth grade in school. He is able to
read and write and was able to work and function in
society, except during his many prior entanglements
with the criminal law. We therefore find no cause to
differ with the district court's finding adopting
the magistrate's report that Poyner possessed
sufficient mental ability to waive his right to
Second, the record
reveals that Poyner was no stranger to the criminal
justice system. Poyner's criminal activity began in
1970, as a juvenile, and he was convicted of no
fewer than twelve offenses, mostly misdemeanors but
including felonies, prior to his 1984 capital murder
convictions. Poyner's background provided him with
at least some familiarity with his rights and with
the process to which he would be subjected, and this
background only supports the district court's
finding of waiver.
Finally, the most compelling
evidence that Poyner's waiver was knowing and
intelligent comes from an examination of the
sequence of events at the interrogation itself.
Detectives Spinner and Browning orally advised
Poyner of his Miranda rights at the outset of the
initial interrogation, and Poyner indicated that he
understood his rights. The detectives then
summarized the evidence against him and asked him if
he had anything to say.
As discussed in detail above,
Poyner responded by asking "Didn't you tell me I had
the right to an attorney?", to which Spinner replied
"Yes, you do, that is correct." At this moment,
immediately after receiving the full Miranda
warnings and an additional clarification of his
right to counsel, Poyner initiated the conversation
and chose to answer Browning's question "Did you
kill her?" in the affirmative. To suggest that
Poyner's conduct, after twice being advised of his
right to counsel and after observing the detectives'
willingness to cease the interrogation should he
request counsel, was not knowing and intelligent
simply strains credulity.
In sum, assuming arguendo that
Poyner did request an attorney, we are in agreement
with the district court that Poyner voluntarily,
knowingly, and intelligently waived his right to
counsel. Consequently, the district court did not
err in denying this claim of Poyner's petition.
Poyner further argues that the
district court erred in denying his request for an
evidentiary hearing on his Miranda claim. According
to Poyner, an evidentiary hearing would enable him
to develop facts sufficient to demonstrate that his
confessions were obtained in violation of his fifth
amendment rights. Because we are satisfied that
Poyner already has been afforded ample opportunity
to develop such facts, we must deny relief on this
A federal habeas corpus
petitioner is entitled to an evidentiary hearing in
the district court if (1) he alleges additional
facts that, if true, would entitle him to relief;
and (2) he is able to establish the existence of any
of the six factors set out by the Court in Townsend
v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9
L.Ed.2d 770 (1963), or the related factors set out
in 28 U.S.C. 2254(d). See Becton v. Barnett, 920
F.2d 1190, 1192 (4th Cir.1990); Bassette v.
Thompson, 915 F.2d 932, 940 (4th Cir.1990), cert.
denied, --- U.S. ----, 111 S.Ct. 1639, 113 L.Ed.2d
734 (1991); Turner v. Bass, 753 F.2d 342, 347 (4th
Cir.1985), sentence vacated on other grounds, 476
U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).
In an affidavit proffered for the
first time after the district court denied and
dismissed his petition,
Poyner alleges that he had intended to ask
Detectives Spinner and Browning for an attorney and
that the detectives "responded with statements like
'Let's take care of this business first' and 'Let's
get this out of the way first.' " Poyner further
alleges that the detectives led him to believe that
he could not speak with an attorney for several days.
Were these allegations true, we may assume without
deciding that Poyner would be entitled to relief on
his fifth amendment claims. Consequently, we must
ask whether the state court fact-finding procedures
were deficient in any of the ways set out in
Townsend held that:
a federal court must grant an
evidentiary hearing to a habeas applicant under the
following circumstances: If (1) the merits of the
factual dispute were not resolved in the state
hearing; (2) the state factual determination is not
fairly supported by the record as a whole; (3) the
fact-finding procedure employed by the state court
was not adequate to afford a full and fair hearing;
(4) there is a substantial allegation of newly
discovered evidence; (5) the material facts were not
adequately developed at the state-court hearing; or
(6) for any reason it appears that the state trier
of fact did not afford the habeas applicant a full
and fair fact hearing.
Townsend, 372 U.S. at 313, 83
S.Ct. at 757. Our independent review of the record
of each of Poyner's trials and of the opinion of the
Supreme Court of Virginia
convinces us that Poyner was afforded a full and
fair hearing at the state level as to his fifth
Upon Poyner's motion, each trial
court held a lengthy suppression hearing at which
Detectives Spinner and Browning, the only persons
other than Poyner present during the interrogation
in question, were examined and cross-examined. The
record amply supports the state court's factual
findings, and there is no allegation of procedural
irregularity or unfairness.
The only ground
that Poyner asserts for the proposition that the
state court factual determinations were inadequate
involves the nature of the legal arguments that his
trial counsel made at his suppression hearings.
Poyner's trial counsel did not make the identical
fifth amendment argument at each of his suppression
hearings that we reject today.
At the Newport
News hearing Poyner's counsel sought to suppress his
confession by arguing both that the Miranda warning
given was imperfectly worded
and that his statement to the effect of "Didn't you
say I had a right to an attorney?" amounted to a
request for counsel that was ignored. On direct
appeal the Supreme Court of Virginia addressed both
arguments and found them unavailing. Poyner, 229 Va.
at 411, 329 S.E.2d at 823.
In the Hampton
hearing Poyner's counsel argued only the wording of
the warning ground, but the Commonwealth's Attorney
raised the request for counsel ground and the
Supreme Court of Virginia there reached both
arguments. 229 Va. at 409-11, 329 S.E.2d at 823.
Only in the Williamsburg case did the request issue
not come up either in the suppression hearing or on
Poyner now argues that because,
at least during the Williamsburg proceedings, the
state courts charged with finding the facts did so
with reference to a different, though related, fifth
amendment issue in mind, we must remand for an
evidentiary hearing on those issues. While generally
it is true that a full and fair state court
proceeding on a particular issue requires that the
state courts "actually reach[ ] and decide[ ] the
issues of fact tendered by the defendant," Townsend,
372 U.S. at 313-14, 83 S.Ct. at 757-58, we do not
believe that the state courts in the instant case
failed to reach and decide the issues of fact
relevant to Poyner's fifth amendment claim.
In all of the state proceedings,
including Williamsburg, all the facts necessary to
evaluate the admissibility of the confession under
any aspect of fifth amendment law were adduced at
full and fair suppression hearings. Poyner's real
complaint here is not with the state court fact-finding
procedures but rather with those courts' legal
rulings on his alternative fifth amendment theories.
This being the case, we find that Poyner has failed
to establish any of the conditions set forth in
Townsend or § 2254(d), and thus we find no error in
the district court's denial of an evidentiary
hearing on this issue.
Poyner's second argument on
appeal is that the district court erred in denying
relief on his claim that his trial counsel rendered
constitutionally inadequate assistance during both
the guilt and penalty phases of each of his three
trials. Poyner alleges that his trial counsel
rendered ineffective assistance at several different
instances during each trial, and we consider each
such claim in turn. First, however, we note that the
state habeas courts denied all of Poyner's
ineffective assistance claims, as did the district
court. Whether counsel's performance was so
inadequate as to be constitutionally infirm is a
mixed question of law and fact, Strickland v.
Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070,
80 L.Ed.2d 674 (1984).
In Strickland v.
Washington the Court set out the now-familiar
constitutional standard against which we measure the
performance of a criminal defendant's trial counsel.
To establish a violation of the sixth amendment
requiring reversal of his conviction or vacation of
his sentence, Poyner must prove (1) that "counsel's
performance fell below an objective standard of
reasonableness" in light of "prevailing professional
norms," Strickland, 466 U.S. at 688, 104 S.Ct. at
2064, and (2) that there is a "reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome"
of the proceeding. Strickland, 466 U.S. at 694, 104
S.Ct. at 2068; see also Briley v. Bass, 750 F.2d
1238, 1247 (4th Cir.1984), cert. denied, 470
U.S. 1088 , 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985).
Our task is to apply this standard to each of
Poyner's specific claims of ineffective assistance.
Poyner first argues that his
trial counsel rendered constitutionally ineffective
assistance by mishandling his respective motions to
suppress his confession during the pretrial stage of
each of his three trials. According to Poyner, his
trial counsel incorrectly chose to emphasize the
alleged inadequacy of the wording of the Miranda
warnings that he received prior to his first
confession. He argues that his counsel should have
pursued the legal tack that he has asserted in his
collateral proceedings, i.e., that his statements
amounted to an invocation of his right to counsel
and that he did not effectively waive that right
under the principles announced in Edwards v.
To begin, we note that Poyner's
characterization of his trial counsel's performance
at his suppression hearings is not entirely accurate.
As we have already described, in the Newport News
hearing Poyner's counsel in fact did argue the
Edwards ground as well as the inadequacy of the
wording ground. There the trial court's ruling
rested mainly on the warning issue, but the Virginia
Supreme Court on direct appeal addressed both the
adequacy of the warning and the Edwards issue.
In the Hampton hearing, his
counsel argued and the trial court ruled on only the
warning issue, but the Commonwealth's Attorney
argued that Poyner had reinitiated the interrogation
under Edwards, and the Virginia Supreme Court again
ruled on direct appeal on both the warning and
Edwards arguments. Again, only in the Williamsburg
hearing did the Edwards issue not come up, either at
trial or on direct appeal.
In light of these
facts we can easily dispose of Poyner's ineffective
assistance claim as to the Newport News hearing.
There his counsel ably elicited all of the necessary
facts and competently presented two different,
albeit unavailing, legal arguments for the
suppression of the confessions. Though the trial
court rejected these arguments and denied the motion,
counsel's performance here clearly was not
unreasonable in light of prevailing professional
norms. Thus, we need not reach the prejudice element
of the Strickland test as to this claim.
The other two suppression
hearings present a slightly different situation. We
do not doubt that under certain circumstances
counsel's failure to recognize and argue a
particular legal theory during a pretrial proceeding
might amount to constitutionally unreasonable
performance under Strickland. In these cases,
however, we need not address that issue because we
are confident that Poyner was in no way prejudiced
by these alleged errors.
The Court in Strickland
emphasized that when the petitioner suffered no
prejudice within the meaning of that case, a
reviewing court can and should dispose of the
ineffectiveness claims on that ground, without
evaluating counsel's performance. Strickland, 466
U.S. at 697, 104 S.Ct. at 2069. We believe this is
such a case. Poyner essentially argues that his
counsel erred by failing to argue a theory that was
squarely rejected by the Supreme Court of Virginia,
the federal district court, and this court. Even had
his counsel vigorously argued the Edwards theory at
the Williamsburg and Hampton hearings, we cannot say
that there is a reasonable probability that those
courts would have suppressed the confession. Thus,
without expressing any opinion regarding the
adequacy of counsel's performance, we hold that
Poyner has failed to demonstrate prejudice with
regard to this claim of ineffective assistance.
claims of ineffective assistance of counsel arise
out of the penalty phases of his trials. These
claims can be characterized generally as failure to
investigate, develop, and present psychiatric
evidence of Poyner's psychological condition as a
mitigating factor. Poyner's specific claims, and our
disposition of each, follow.
First, Poyner relies upon the
affidavit of a certain Dr. Park Elliott Dietz for
the proposition that the psychiatrists and
psychologists who evaluated Poyner prior to the
penalty phases of his trials failed to conduct
psychological tests of the type necessary to
determine whether Poyner fits into one of the five
categories of "serial killers" that Dr. Dietz has
identified in his scholarly writings.
In his affidavit Dr. Dietz opines
that Poyner may belong to a category of serial
killers known as "Psychopathic Sexual Sadists" whose
members are characterized by the "repeated
intentional infliction of psychological or physical
suffering in order to produce sexual excitement."
Alternatively, Dr. Dietz suggests that Poyner may be
a "Crime Spree Killer," one who kills "repeatedly
during a series of crimes motivated by the search
for excitement, money, and valuables," or a "Supposed
Psychotic," one who claims "to be acting at the
direction of command hallucinations or under the
influence of compelling delusions."
Poyner argues that had his
counsel and psychiatrists investigated and put on
evidence of these conditions, the jury might have
believed that Poyner was driven by a motive other
than the simple expediency of preventing his robbery
victims from identifying him. Consequently,
according to Poyner, the jury would have found this
to be a mitigating factor, and his counsel's failure
to develop this specific type of psychiatric
evidence amounts to constitutionally ineffective
assistance. We find no merit in this argument.
Prior to the
commencement of the trials in this case, each trial
judge ordered that Poyner be sent to Central State
Hospital for psychological evaluation. Between March
20 and April 2, 1984, Poyner underwent a wide range
of diagnostic psychiatric and psychological
examinations under the supervision of Dr. James C.
Dimitris. These tests were designed to evaluate the
possibility of an insanity defense, Poyner's
competency to stand trial, and whether any mental
conditions existed that might serve to mitigate the
heinousness of his crimes.
During the course
of his examinations the Central State staff
contacted Poyner's wife, father, step-father, and
former psychiatrists. In addition to this court-ordered
evaluation, Poyner's counsel retained Dr. Wendell J.
Pile, a Newport News psychiatrist in private
practice who had prior experience assisting in the
defense of criminal defendants, to interview and
evaluate Poyner. As part of his evaluation Dr. Pile
and his staff met with Poyner for three days and
contacted Poyner's stepfather as well as the same
psychiatrists whom Dr. Dimitris consulted.
The results of these evaluations
were not particularly promising from the standpoint
of a defense attorney seeking to develop arguments
in mitigation of five seemingly senseless, cold-blooded
murders. Dr. Dimitris and the rest of the Central
State Staff, which included both psychiatrists and
psychologists, found that Poyner exhibited signs of
suffering from both passive-aggressive and
antisocial personality disorders. As noted above,
Poyner's intelligence was evaluated at the "dull
The doctors further found that
Poyner was neither "feebleminded" nor psychotic, and
that he suffered from no disease of the mind or
irresistible impulse. Dr. Pile, after an independent
evaluation of Poyner, came to essentially the same
conclusions regarding Poyner's psychiatric condition.
During the penalty
phases of his three trials, Poyner's counsel chose
to employ what little favorable psychological
evidence was available to establish Poyner's mental
condition and history as mitigating factors. Dr.
Dimitris testified on Poyner's behalf at all three
trials, and in each trial counsel produced evidence
of psychiatric and like evaluations of Poyner's
mental condition made prior to the instant offenses.
In each penalty
phase counsel ably elicited from Dr. Dimitris that
Poyner suffered from the aforementioned maladies.
The juries in Williamsburg and Newport News and the
court in Hampton, it appears, simply found this and
the rest of the mitigation testimony to be
insufficient to outweigh the undeniably heinous
nature of Poyner's crimes.
Our problem with this claim of
ineffective assistance is twofold. First, Poyner's
complaint here seems aimed not at the performance of
his counsel but rather at the performance of Dr.
Dimitris, Dr. Pile, and the Central State Hospital
staff. The gravamen of this claim is that these
psychiatrists were not experienced or imaginative
enough to recognize that Poyner might have been
motivated by sexual sadism, the crime-spree killer
phenomenon, or some other psychological disorder
that might support an argument that Poyner's
killings were motivated by more than just a desire
to evade capture and prosecution for robbery.
However, this court in the past
has made clear that there is no right to effective
assistance of expert witnesses distinct from the
right to effective assistance of counsel. A clear
overtone to the argument is the proposition that if
a defense attorney has not produced a witness who
would agree with the after-the-fact diagnosis
presently presented, then the attorney is
ineffective. We reject this proposition as we did
its corollary in Waye v. Murray, 884 F.2d 765 (4th
In Waye, we were faced with a
claim that the psychiatrist who had testified at
trial was incompetent in that he failed to emphasize
sufficiently the petitioner's low intelligence and
alleged diminished capacity. 884 F.2d at 766. Though
we decided that case on procedural grounds, we took
care to state that:
While it is true
that the tack the petitioner takes in this case
principally is to disclaim inadequate performance of
his attorneys on the one hand, and claim inadequate
performance of his psychiatrist on the other, we
think that no such rule should be inaugurated, even
in a capital case. It will nearly always be possible
in cases involving the basic human emotions to find
one expert witness who disagrees with another and to
procure an affidavit to that effect from the second
prospective witness. To inaugurate a constitutional
or procedural rule of an ineffective expert witness
in lieu of the constitutional standard of an
ineffective attorney, we think, is going further
than the federal procedural demands of a fair trial
and the constitution require.
884 F.2d at 766-67.
That there is no separately-cognizable
claim of ineffective assistance of expert witnesses
does not mean that a substandard performance by a
psychiatrist at trial could never form the basis for
habeas corpus relief. However, the constitutionally
deficient performance must be that of counsel, in
obtaining the psychiatric examinations or presenting
the evidence at trial for example, not that of the
psychiatrist or psychologist in failing to identify
every possible malady or argument, no matter how
As we have already noted, in this
case, at the behest of his trial counsel and the
trial courts, Poyner was evaluated at length by the
experienced psychiatric staff of Central State
Hospital, as well as by independently employed Dr.
Pile. Each of Poyner's trial attorneys thereafter
put Dr. Dimitris on the stand and competently
elicited the results of the evaluations.
The mere fact that his counsel
did not shop around for a psychiatrist willing to
testify to the presence of more elaborate or grave
psychological disorders simply does not constitute
ineffective assistance. See Roach v. Martin, 757
F.2d 1463, 1477 (4th Cir.), cert. denied, 474
U.S. 865 , 106 S.Ct. 185, 88 L.Ed.2d 154 (1985).
To the extent, then, that Poyner's claims, as set
out in Dr. Deitz's affidavit, relate only to the
performance of his psychiatrists and psychologists,
we deny relief.
difficulty with this ineffective assistance claim is
its suggestion that Poyner was prejudiced within the
meaning of Strickland by his counsel's supposed
failure to pursue the avenues of psychiatric inquiry
advocated in Dr. Deitz's affidavit. In each penalty
phase Poyner's attorneys faced the unenviable task
of convincing the fact-finder that his crimes did
not warrant the imposition of the death penalty.
attempted to do so by introducing evidence intended
to show that he was a generally good person who had
been beset by legal, social, and emotional problems
throughout his life, causing him finally to explode
into violence. Toward this end, counsel in the
Williamsburg and Newport News penalty proceedings
presented the testimony of twelve and ten witnesses,
respectively, including Poyner's relatives, friends,
and psychiatrists, each of whom testified in a
manner favorable to Poyner. Similar evidence was
presented to the court sitting without a jury in
Given counsel's tactical
decisions as to the best way to build a case in
mitigation, we cannot say that their failure to
delve more deeply into the risky realm of
psychological mitigation evidence worked to create a
reasonable probability that the outcome of any of
Poyner's penalty proceedings would have been
different. Dr. Dimitris and his staff include
physicians and psychologists skilled not only in
psychiatry and psychology, but in the forensic
branches thereof, and Dr. Pile, a psychiatrist
consulted by Poyner, as well as Dr. Howerton, a
psychiatrist who testified on Poyner's behalf, were
each fully qualified. No reason is shown in the
record that the defense attorneys' reliance on their
opinions was unreasonable.
In sum, we find the attorneys'
performance in obtaining and presenting
psychological evidence as a mitigating factor to
fall well within the range of reasonable
professional standards as required by Strickland. We
are of opinion that the fact that a line of defense
was not drawn as set out in the Dietz affidavit does
not constitute ineffective representation.
Consequently, we affirm the district court's denial
of relief on that claim.
The balance of
Poyner's ineffective assistance claims merit only
brief attention. Each claim arises out of the
penalty phase of one or more of his trials. They
are: (1) that Dr. Dimitris gave the jury an
incorrect definition of the passive-aggressive
personality disorder; (2) that Dr. Dimitris erred in
opining that Poyner's motive was to silence his
robbery victims; (3) that Poyner's counsel failed to
elicit from Dr. Dimitris that it was likely, given
the nature of his condition, that Poyner would not
be a future danger if incarcerated; (4) that his
counsel and psychiatrists should have investigated
whether or not Poyner's wife was pregnant at the
time of the crimes and whether Poyner suspected that
he was not the father; (5) that his counsel and
psychiatrists failed to offer an explanation as to
why Poyner appeared cold and remorseless in his
videotaped confession; and (6) that his counsel and
psychiatrists failed sufficiently to develop and
present evidence of Poyner's low intelligence as a
We are of opinion that the above
claims must fail for essentially the same reasons as
did Poyner's central ineffective assistance claim as
set out above. First, again it is apparent that the
main thrust of these claims is not that Poyner's
counsel performed unreasonably, but rather that Dr.
Dimitris, Dr. Pile, Dr. Howerton and the Central
State Hospital staff failed to provide the exact
findings and testimony that Poyner would have liked.
We need not today set out a sweeping rule regarding
what degree of psychiatric investigation will
suffice to satisfy the performance element of the
Strickland standard; undoubtedly that will vary with
the facts of each case.
In this case, however, we are
satisfied that Poyner's counsel did not act in a
professionally unreasonable manner by having their
client examined by the experienced psychiatric staff
at a state-run mental health facility and by an
experienced private psychiatrist as well as
consulting a third psychiatrist who had treated
Poyner some years previously.
Second, to the extent that the
above claims are directed specifically at the
performance of Poyner's trial counsel, we are
satisfied that, even taken as a whole, the alleged
errors did not prejudice Poyner within the meaning
of Strickland. We must always be mindful that the
standard of prejudice set out in Strickland requires
more than a mere possibility that the allegedly
deficient performance may have prejudiced the
defendant in any way.
Quite to the contrary, the
constitutional guarantee of effective assistance of
counsel is violated only when an attorney's
unprofessional errors were of such magnitude as to
create a reasonable probability that the outcome of
the proceeding in question would have been different.
The Court further defined a reasonable probability
as one "sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at
In the instant
case Poyner's trial counsel faced the Herculean task
of convincing three courts that the killing of five
women in the span of eleven days merited less than
the most grave penalty that the law allows. When
viewed in the light of the Commonwealth's
devastating case at each of the penalty phases, the
relative insignificance of trial counsel's alleged
errors is clear. Consequently, we hold that any such
errors, and we do not suggest there were any, were
insufficient to undermine confidence in the outcome
of the penalty proceedings, and we affirm the
district court's denial of relief on these claims.
In addition to his substantive
ineffective assistance claims, Poyner argues that
the district court erred in denying his request for
an evidentiary hearing on those claims. Poyner
asserts, in part on the strength of the
aforementioned affidavit of Dr. Deitz, that factual
issues remain which, if resolved in Poyner's favor,
would entitle him to relief on ineffective
assistance of counsel grounds. Because we have
already set out in detail the legal standard under
which 2254 petitioners' requests for evidentiary
hearings will be evaluated, see section I.B., we
will not repeat it here. We note that neither the
state courts nor the district court held an
evidentiary hearing on Poyner's ineffective
assistance claims. Therefore, the only question for
resolution by this court is whether Poyner indeed
has alleged facts which, if true, would entitle him
to relief. We hold that he has not.
We can most easily dispose of
Poyner's demand for an evidentiary hearing on the
issue of whether his trial counsel was ineffective
in handling the fifth amendment confession claims.
Today we have affirmed the district court's denial
of Poyner's substantive ineffective assistance claim
on this issue, see part II.A. With the exception of
a very few conclusory statements on brief, Poyner
alleges no facts that would in any way alter our
conclusion that his trial counsel's performance did
not run afoul of the constitution. Therefore, an
evidentiary hearing on this issue would be
superfluous, and we affirm the district court's
denial of this request.
for an evidentiary hearing on his claims of
ineffective assistance arising out of the penalty
phases of his trials likewise must fail, as we find
that he would not be entitled to relief on
ineffective assistance grounds even if the facts
were as he alleges. Poyner relies largely on the
factual allegations in the affidavit of Dr. Deitz,
as discussed in section II.A. above, for the
proposition that an evidentiary hearing in the
district court would allow him to establish facts
that would entitle him to relief.
purposes of this appeal we have already considered
the allegations in Dr. Deitz's affidavit and
determined that, even assuming arguendo that they
are true, they do not amount to constitutionally
ineffective assistance of counsel. This being the
case, an evidentiary hearing would be no more
availing to Poyner on this issue than in the fifth
amendment based ineffective assistance setting.
This court's most recent
pronouncement on this issue, Becton v. Barnett, 920
F.2d 1190 (4th Cir.1990), does not compel the
contrary result. In Becton, the petitioner sought
habeas corpus relief from state court convictions on
charges of rape, breaking and entering, and larceny
from the person. Prior to and during the
petitioner's trial and conviction, he had suffered
extended and severe bouts of apparent mental illness,
to such extent that he was involuntarily
hospitalized on several occasions. Becton, 920 F.2d
at 1191. Despite the petitioner's history of
psychiatric problems, his trial counsel did not
investigate his competency to stand trial. Further,
his counsel presented no evidence in his defense at
trial and failed to file a notice of appeal on the
petitioner's behalf. 920 F.2d at 1191.
The petitioner then applied for
collateral relief from the conviction in state court
on the grounds of ineffective assistance of counsel.
The state court denied this claim without holding an
evidentiary hearing. He then filed a petition for a
writ of habeas corpus in federal court on the same
grounds of ineffective assistance of counsel. The
federal district court likewise declined to hold an
evidentiary hearing and denied the petition.
court vacated that denial and remanded the case to
the district court for an evidentiary hearing on the
petitioner's ineffective assistance claims. In so
holding we stated that "[w]here material facts are
in dispute the federal court in a habeas proceeding
must hold an evidentiary hearing unless the facts
were resolved in a prior state hearing." 920 F.2d at
1192. An examination of the petitioner's allegations
convinced us that, if the facts indeed were as he
had alleged, he likely would be entitled to relief.
See 920 F.2d at 1194-95. Therefore, the petitioner
was entitled to an opportunity to establish those
facts in a federal evidentiary hearing.
Poyner's reliance on Becton,
however, is unavailing. Becton makes clear that a
habeas corpus petitioner is entitled to an
evidentiary hearing only to resolve disputed issues
of material fact. 920 F.2d at 1192. The petitioner
must "present[ ] a colorable claim" to relief, 920
F.2d at 1195 (emphasis supplied), by showing that
the alleged additional facts, if true, would at
least arguably compel the granting of the writ. In
Becton the petitioner made such a showing by
alleging in his petition (1) that he had informed
his counsel before trial "that he had been in and
out of mental hospitals prior to his arrest"; (2)
that his counsel ignored his request to be evaluated
for competency to stand trial; and (3) that his
counsel failed to file a notice of appeal despite
the petitioner's express request. 920 F.2d at
1191-92. These allegations, when viewed in light of
that attorney's performance at trial, were
sufficient to create a colorable claim of
By contrast, that Poyner has
failed to satisfy this threshold requirement is
clear. We have already examined his allegations as
cataloged in the Deitz affidavit, and we remain
satisfied that they do not state a colorable claim
of ineffective assistance. Thus, we affirm the
district court's denial of an evidentiary hearing on
claim for relief concerns Virginia's method of
appointing counsel to represent indigent defendants.
Virginia has not adopted any formal, centralized
mechanism for the appointment of counsel to indigent
criminal defendants; rather, it appears that the
presiding judge simply contacts and appoints a
member of the bar to represent an indigent defendant.
According to Poyner, this informal system caused
undue delay in the appointment of trial counsel in
each of his three capital murder cases. Poyner
argues that this delay impinged his ability
adequately to investigate and defend against the
capital murder charges, and, thus, that Virginia's
system of appointing counsel violates the due
process clauses of the fifth and fourteenth
Poyner asserted this
constitutional claim for the first time in his state
petitions for writs of habeas corpus. At no time
during any of his trials did he object to the method
by which his counsel was appointed or to any delay
or other prejudice allegedly caused thereby.
Consequently, each state habeas court in dismissing
his petition held that this claim was procedurally
barred under the rule in Slayton v. Parrigan, 215
Va. 27, 205 S.E.2d 680 (1974), cert. denied sub nom.
Parrigan v. Paderick, 419 U.S. 1108 , 95 S.Ct.
780, 42 L.Ed.2d 804 (1975), which prevents
state habeas petitioners from raising
nonjurisdictional claims that could have been but
were not timely raised at trial or on direct appeal.
The Supreme Court of Virginia in each case denied
Poyner's petition for review of these dismissals.
raised his claim regarding appointment of counsel in
Virginia in his petitions for writs of habeas corpus
in the United States District Court. There the court,
adopting the United States Magistrate's
recommendation, dismissed this claim, holding that
it was procedurally barred under the doctrine of
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977). Finding no error in that
holding, we affirm.
The United States Supreme Court
in Coleman v. Thompson, --- U.S. ----, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991), recently reaffirmed
the principle that a federal habeas court is without
power to grant relief on federal constitutional
claims when a state court previously denied the
petitioner relief on those claims for failure to
present them in accordance with state procedural law.
So long as the state court decision contains an
accurate "plain statement" that the denial of relief
rests solely on state procedural grounds, Harris v.
Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 1044, 103
L.Ed.2d 308 (1989), such a procedural default
constitutes an adequate and independent state ground
for the petitioner's custody. Under these
circumstances a federal habeas court may hear a
procedurally defaulted claim only in the rare
instance when the petitioner can show both good
cause for the default and actual prejudice resulting
from the alleged constitutional violations. See
Coleman, --- U.S. at ----, 111 S.Ct. at 2561-67;
Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506.
Initially, we are satisfied that
the decisions of the Virginia courts dismissing
Poyner's claims that Virginia's method of appointing
counsel is unconstitutional were based solely on
state procedural grounds as contemplated by Harris
v. Reed. Each state trial court stated explicitly
that this claim was "procedurally barred" and cited
Slayton v. Parrigan, the case setting out Virginia's
procedural default rule. The Supreme Court of
Virginia in each case denied Poyner's petition for
appeal. Thus, our only inquiry is whether the
district court correctly held that Poyner failed to
establish good cause for his default and prejudice
As cause for his
procedural default Poyner asserts that (1) his claim
that Virginia's system of appointment of counsel for
indigent defendants violates the Constitution is so
novel that it falls within the ambit of Reed v.
Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1
(1984); (2) his trial counsel's failure to raise the
objection amounts to constitutionally ineffective
assistance of counsel; and (3) that the gravity of
the sentence he faces militates in favor of our
addressing the issue. The district court rejected
each of these arguments and held the claim barred.
As for the latter two assertions
of cause, the district court's rejection plainly was
correct. Poyner's counsel did not act in a
professionally unreasonable manner in failing to
raise this decidedly tenuous constitutional claim.
See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639,
91 L.Ed.2d 397 (1986) (error of counsel may
constitute cause for procedural default only when
error rises to level of constitutional deprivation
under Strickland ). With the benefit of hindsight,
rarely can it be said that trial counsel made every
possible objection and raised every conceivably
viable legal argument. See Strickland, 466 U.S. at
669, 104 S.Ct. at 2055. The law, however, requires
not perfect but only professionally reasonable
performance of counsel, and we are confident that
Poyner's counsel did not run afoul of that standard
in not raising this objection.
Further, the Court has expressly
rejected the claim that federal habeas corpus law in
general, and the law of procedural bar in
particular, should operate any differently in cases
in which the sentenced challenged is that of death.
See Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct.
2661, 2668, 91 L.Ed.2d 434 (1986). Therefore, the
presence of a death sentence alone cannot constitute
cause for a state court procedural default.
Poyner's argument that the claim
regarding the appointment of his counsel is novel
within the meaning of Reed v. Ross, supra, should
have some further discussion. Procedural default may
be excused when the defaulted claim is "so novel
that its basis [was] not reasonably available to [trial]
counsel." Ross, 468 U.S. at 16, 104 S.Ct. at 2910. A
claim may be held sufficiently novel when, at the
time of its default, the legal tools, i.e., case law,
necessary to conceive and argue the claim were not
yet in existence and available to counsel. See Engle
v. Isaac, 456 U.S. 107, 130-33, 102 S.Ct. 1558,
1573-75, 71 L.Ed.2d 783 (1982); Clanton v. Muncy,
845 F.2d 1238, 1242 (4th Cir.), cert. denied,
485 U.S. 1000 , 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988).
In holding that
Poyner's claim was not novel, the district court
relied in large part on the Ross Court's statement
[a]lthough the question whether
an attorney has a "reasonable basis" upon which to
develop a legal theory may arise in a variety of
contexts, we confine our attention to the specific
situation presented here: one in which this Court
has articulated a constitutional principle that had
not been previously recognized but which is held to
have retroactive application.
Ross, 468 U.S. at 17, 104 S.Ct.
at 2911. Thus, in Ross the legal argument held to be
sufficiently novel so as to excuse a procedural
default was one which the United States Supreme
Court had later adopted and held to apply
retroactively. Certainly the Court has made no such
pronouncement regarding Poyner's challenge to
Virginia's system of appointment of counsel, and the
district court, accordingly, held that the claim was
The precise contours of the
novelty exception to the procedural bar doctrine are
not as clear as one might hope. In particular,
whether a requirement of establishing sufficient
novelty under Ross is that the legal claim in
question must have been subsequently adopted and
held retroactive in application by the Supreme Court
is unclear. However, in Carrier, 477 U.S. at 488,
106 S.Ct. at 2645, the Court referred to Ross
without noting any such requirement, as did this
court in Clanton, 845 F.2d at 1242. Though the
barriers to the use of novelty as cause for
procedural default undoubtedly are high, they may
well not include the requirement principally relied
upon by the district court,
for Ross could be considered as the standard as to
when the novelty rule would apply, but not as the
standard as to when it would not.
The issue of the
foregoing requirement aside, we are inclined to
agree with the district court's conclusion that this
claim is not novel within the meaning of Ross. Since
the United States Supreme Court's decision in Gideon
v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963), surely no proposition of criminal
procedure law has been more clear than that the
sixth and fourteenth amendments require that
indigent criminal defendants be provided with
importantly, the Commonwealth of Virginia's
recognition of the right of an indigent to counsel
in a criminal case under the Virginia Constitution
far antedates Gideon and its progeny. See Barnes v.
Commonwealth, 92 Va. 794, 803, 23 S.E. 784, 787
(1895); Watkins v. Commonwealth, 174 Va. 518, 523, 6
S.E.2d 670, 671 (1940); Code of Virginia § 3518
(1919) (providing for payment of appointed attorneys
from public funds). In light of this well-established
body of state and federal law regarding the
necessity of the appointment of competent counsel on
behalf of indigent defendants, we would be hard
pressed to hold that Poyner's trial counsel was
without the legal tools necessary to conceive of and
assert this argument.
In any event, we need not discuss
further Ross's novelty exception, as we are
confident that Poyner suffered no prejudice under
the rule in Wainwright v. Sykes by his counsel's
failure to object to Virginia's system of
appointment of counsel. The prejudice requirement
under the procedural bar analysis is significantly
greater even than that demanded under the plain
error rule. Carrier, 477 U.S. at 493-94, 106 S.Ct.
at 2648-49. "The habeas petitioner must show 'not
merely that the errors at ... trial created a
possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting
his entire trial with error of constitutional
dimensions.' " Carrier, 477 U.S. at 494, 106 S.Ct.
at 2648 (quoting United States v. Frady, 456 U.S.
152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816
(1982) (emphasis in original)). Further, "[s]uch a
showing of pervasive prejudice can hardly be thought
to constitute anything other than a showing that the
prisoner was denied 'fundamental fairness' at trial."
Carrier, 477 U.S. at 494, 106 S.Ct. at 2648; see
also Felton v. Barnett, 912 F.2d 92, 97 (4th
Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct.
693, 112 L.Ed.2d 683 (1991).
allegations of prejudice stemming from the
circumstances of the appointment of counsel in
preparation for his three trials are exceedingly
vague and conclusory. In summary, his argument
appears to be that prejudicial delays in the
appointment of counsel hampered their ability to
investigate in furtherance of his defense and their
ability to coordinate his defenses in each of the
three trials. As to the Hampton proceeding, Poyner
adds that his counsel, though timely appointed by
the state general district court, were not
reappointed by the state circuit court until some
months later. According to Poyner the "uncertainty
of eventual appointment" led to a "two-month lack of
effort" on the part of his Hampton counsel.
Finally, though he
apparently does not pursue this argument before this
court, in his habeas petition he argued that he was
not appointed an attorney until the Monday morning
following his Saturday arrest, and that between
Saturday and Monday his recollection of the relevant
events became confused.
Poyner, however, has utterly
failed to direct this or, it appears, any prior
court to any evidence that "actual and substantial"
prejudice occurred or indeed that he was ever in
court without the representation of competent
counsel. From the papers before us we can
reconstruct the following sequence of events
regarding appointment of counsel for Poyner.
As we have noted, Poyner was
arrested for the murder of Miss Hedrick on February
4, 1984, a Saturday. Immediately upon his arrival at
the police station he was advised of and waived his
right to counsel. He then appeared before a Virginia
Magistrate, who informed him of the charges against
him and that he would be held without bond.
Following that appearance Poyner again was advised
of his right to counsel and he again waived that
right. He then confessed to the murders of all five
On Monday, February 6, 1984, a
Virginia court appointed Vincent Conway, Esq. to
Conway was replaced on February 14, 1984 by the
appointment of Messrs. Richard Blackwell and Kevin
Shea, who represented Poyner throughout the Hampton
proceedings. On February 16, 1984, Poyner was
formally charged with the Newport News murder, at
which time James Bradberry, Esq. was appointed to
represent him. Bradberry ultimately was replaced by
Sharon A. Coles-Stewart, Esq. and Joyce A.
Melvin-Jones, Esq. who tried the Newport News case.
Finally, Poyner was indicted for the Williamsburg
murders on March 13, 1984. David Holland, Esq. on
the same day was appointed to represent Poyner and
thereafter represented him throughout the
facts reveal that Poyner was never without
representation in court after February 6, 1984, the
Monday following the Saturday on which he was
arrested. Moreover, nothing in the record supports
his few specific allegations of prejudice. First,
Poyner offers no evidence of the alleged two-month
lack of effort; to the contrary, the uncontradicted
affidavits and performance of Messrs. Blackwell and
Shea, his Hampton counsel, prove otherwise. Second,
the undisputed affidavits of trial counsel from each
proceeding refute Poyner's assertion that the three
groups of counsel did not consult with each other on
matters of trial strategy and the like. Third, it is
apparent that each state court provided Poyner with
appointed counsel from the moment he was first
called before that court.
Finally, the record as a whole
belies any general assertion that Poyner's defense
was impeded in any way by the sequence in which his
counsel was appointed. Here we emphasize that we
have considered and rejected the ineffective
assistance of counsel claims that Poyner has brought
attacking his counsel's performance in every
significant aspect of his trials.
We simply have found that
Poyner's trial counsel rendered constitutionally
sufficient representation in every respect. In light
of Poyner's inability to point to any specific
instance of prejudice, we hold that he suffered no
prejudice, especially within the meaning of
Wainwright v. Sykes, from the circumstances of the
appointment of his counsel, and that the procedural
bar of that claim cannot be excused.
The judgments of the district
court are accordingly affirmed in the following
cases which are all of the cases with respect to
Poyner and the death sentences awarded to him under
consideration herein: No. 91-4001, No. 91-4002, No.
91-4003, No. 91-4004, No. 91-4005, No. 91-4006.
Poyner also makes the related
argument that the district court erred in denying
Poyner's request for an evidentiary hearing on his
fifth amendment claim. We address this argument
separately at section I.B., infra.
Even assuming, without deciding,
that Poyner's sixth amendment right to counsel
attached upon his initial appearance before the
magistrate, the absence of counsel during his
interrogation does not make inadmissible his
confession when he never invoked his right to
counsel or, even if he did, he reinitiated
communication with the detectives and thereafter
waived his right to counsel. It is now clear that an
accused may so waive his sixth amendment right to
counsel, and that a waiver will be evaluated under
the same analysis as are waivers of the fifth
amendment right under Miranda. See Patterson v.
Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d
261 (1988); United States v. Muca, 945 F.2d 88 (4th
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct.
983, 117 L.Ed.2d 145 (1992). Thus, our holdings with
respect to his fifth amendment claim are equally
dispositive of the sixth amendment claim. Even the
reserved question in Patterson is not present here
for the Virginia Magistrate advised Poyner of the
charges against him.