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George Adrian QUESINBERRY Jr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: September 24, 1989
Date of arrest: Same day
Date of birth: 1961
Victim profile: Thomas L. Haynes, 63
Method of murder: Shooting (.45-cal. Remington semi-automatic)
Location: Chesterfield County, Virginia, USA
Status: Executed by lethal injection in Virginia on March 9, 1999
 
 
 
 
 
 

 clemency petition

 
 
 
 
 
 

In the late night/early morning hours of September 24, 1989, George Quisenberry visited a friend at a trailer court in Prince George County. Eric Hinkle also was present. 

The 3 got drunk drinking rum and Quesinberry suggested breaking into the office and warehouse of the Tri-City Electric Supply Co. in Chesterfield County.

Quesinberry bought electrical supplies there and was familiar with its premises. Hinkle and Quesinberry drove to Quesinberry's stepmother's home and picked up a handgun, a .45-cal. Remington semi-automatic. 

They arrived at the business at approximately 6 a.m. Quesinberry pried open a rear door with a screwdriver, and the two entered and began rummaging through offices.

They found a desk with a locked drawer and Quesinberry fired a shot, breaking the lock. They found a box of money in a cabinet. 

Haynes, 63, arrived at the office, turned on the lights and discovered Hinkle and Quesinberry. Haynes, who was unarmed, fled and Quesinberry chased him, firing as he ran.

One gunshot wound severed Hayne's spinal cord. The other shot was fired with the muzzle pressed against Hayne's back. 

Later, when Haynes tried to push himself up, Quesinberry struck him a hard blow in the head with the handgun. The blow fractured his skull. 

Hinkle turned himself in to police at 7 that night and implicated Quesinberry. When police confronted him, Quesinberry told them where they could find the murder weapon and his share of the $200 in coins that had been taken from the business. 

Tom Haynes' relatives described him as a kind, community-oriented man who was always willing to help people who he felt hadn't been given a chance.  "He was a fantastic person," said his widow, June Haynes-Garrett. "He would have given those jerks (who killed him) probably a job or some money, you know, if they really needed it." 

Ms. Haynes-Garrett said her husband was killed three days before their 40th wedding anniversary.  "We had planned a trip," she said. "We were going to Cancun." 

  
  

George Adrian Quesinberry Jr., 37 - 99-3-9 - Virginia

Associated Press

A man who killed an electrical supply company owner during a botched burglary was executed Tuesday night after Gov. Jim Gilmore declined to grant clemency and the U.S. Supreme Court rejected a stay.

George A. Quesinberry Jr., 37, was put to death by injection at the Greensville Correctional Center. He was pronounced dead at 9:07 p.m.

Asked for a final statement, Quesinberry said: "I just want my family to know I love them, and to the victim's family I am sorry for what I've done."

The execution of Quesinberry was Virginia's 3rd of the year, with 6 more scheduled before the end of April. Virginia executes more people than any state except Texas.

Quesinberry was convicted of the Sept. 25, 1989 murder of Thomas L. Haynes, who owned the Tri-City Electrical Supply Co. in Chesterfield County near Richmond. Quisenberry and a friend broke into the company office about 6 a.m. and were rummaging through desks when Haynes showed up to take care of some chores.

Haynes, 63, fled when he saw the intruders but Quesinberry chased him, firing a .45 caliber semiautomatic handgun as he ran. One shot severed Haynes' spinal cord and another was fired with the muzzle pressed against Haynes' back. When Haynes tried to push himself up, Quesinberry struck him in the head with the handgun, fracturing his skull.

Quesinberry's lawyer, A. Peter Brodell, asked Gilmore for clemency because Quesinberry was abused as a child.

When Quesinberry was 2, his mother shot herself to death in front of him, leaving him covered with blood. He was raped by his paternal grandfather before he was 4, and was beaten during a childhood spent shuttling between Texas and Virginia, relatives said in depositions for the clemency petition.

"He is not a sociopathic killer," Brodell wrote. "Instead, he is a man who suffered horrible physical and mental abuse throughout his childhood."

But Gilmore noted that Quesinberry admitted to killing Haynes and there has never been any question as to the condemned man's guilt. "Upon a thorough review of the petition for clemency, the numerous court decisions regarding this case and the circumstances of this matter, I decline to intervene," Gilmore said.

Earlier Tuesday, the U.S. Supreme Court voted 7-2 to deny Quesinberry's appeal and request for a stay.

Haynes' relatives described him as a kind, community-oriented man who was always willing to help people who he felt hadn't been given a chance.

"He was a fantastic person," said his widow, June Haynes-Garrett. "He would have given those jerks (who killed him) probably a job or some money, you know, if they really needed it."

Ms. Haynes-Garrett said her husband was killed 3 days before their 40th wedding anniversary.

"We had planned a trip,'' she said. "We were going to Cancun." Quesinberry was baptized a few hours before he was put ot death. Among his last visitors were his father, stepmother, 2 sisters and 2 brothers, prison officials said.

 
  


  

Statement by Governor Jim Gilmore Regarding the Execution of George Quesinberry

Office of the Governor - Commonwealth of Virginia

March 9, 1999

RICHMOND- "After violating his probation for a prior conviction, George Quesinberry shot and murdered Thomas L. Haynes during a robbery at Mr. Haynes' place of business in Chesterfield County. Quesinberry shot Mr. Haynes twice in the back. The first bullet severed Mr. Haynes' spine and he fell to the ground unable to walk but still alive. Quesinberry then placed his .45 caliber pistol against Mr. Haynes' back and shot him a second time as he lay on the floor. Mr. Haynes was still alive when Quesinberry hit him in the head with his gun before leaving. Mr. Haynes subsequently died of the gunshot wounds.

"Quesinberry was tried for capital murder and robbery. Quesinberry admitted to the murder. A jury convicted Quesinberry on both counts and sentenced him to death. After reviewing all of the evidence, the judge imposed the death sentence. The convictions and death sentence were upheld on multiple appeals. There never has been any question as to Quesinberry's guilt.

"Upon a thorough review of the Petition for Clemency, the numerous court decisions regarding this case, and the circumstances of this matter, I decline to intervene."

  
  

George A. Quesinberry

Richmond Times-Dispatch

March 7, 1999

When he was 2 years old his mother shot herself to death in front of him. He was, relatives said, covered in her blood. He was raped by his paternal grandfather before he was 4 years old. He spent his childhood shuttled between homes in Texas and Virginia, beaten with a belt at times so severely it drew blood.

In 1976, when he was 14 years old, he was shot in the abdomen in a hunting accident. In 1978 he dropped out of school after completing the 8th grade with an undiagnosed learning disability. He later suffered two serious head injuries.

When he was 18, he snatched two purses. At age 20 he broke into a grocery store and then he robbed a taxi driver in Houston -- though his lawyers say he merely fled without paying the driver. He developed a drinking problem.

He was 28 years old and drunk on rum the night of Sept. 24, 1989. Early the next morning he burglarized the Tri-City Electric Supply Co. with a friend and shot to death the owner, Thomas L. Haynes.

On Tuesday, at age 37, George Adrian Quesinberry Jr. is to die by injection for the capital murder of Haynes and robbery unless Gov. Jim Gilmore or the U.S. Supreme Court steps in.

Quesinberry's lawyers have filed an appeal with the U.S. Supreme Court and a clemency petition with Gilmore. They are set to meet tomorrow with representatives of the governor.

According to a Virginia Supreme Court summary of the crime and news accounts, on Sept. 24, 1989, Quisenberry visited a friend at a trailer court in Prince George County. Eric Hinkle also was present.

The 3 got drunk drinking rum and Quesinberry suggested breaking into the office and warehouse of the Tri-City Electric Supply Co. in Chesterfield County. Quesinberry bought electrical supplies there and was familiar with its premises.

Hinkle and Quesinberry drove to Quesinberry's stepmother's home and picked up a handgun, a .45-cal. Remington semi-automatic.

They arrived at the business at approximately 6 a.m. Quesinberry pried open a rear door with a screwdriver, and the two entered and began rummaging through offices. They found a desk with a locked drawer and Quesinberry fired a shot, breaking the lock. They found a box of money in a cabinet.

Haynes, 63, arrived at the office, turned on the lights and discovered Hinkle and Quesinberry. Haynes, who was unarmed, fled and Quesinberry chased him, firing as he ran. One gunshot wound severed Hayne's spinal cord. The other shot was fired with the muzzle pressed against Hayne's back.

Later, when Haynes tried to push himself up, Quesinberry struck him a hard blow in the head with the handgun. The blow fractured his skull.

Hinkle turned himself in to police at 7 that night and implicated Quesinberry. When police confronted him, Quesinberry told them where they could find the murder weapon and his share of the $200 in coins that had been taken from the business.

Quesinberry's lawyer, A. Peter Brodell, said he could not comment on the case because he did not have his client's permission to do so. Quesinberry turned down a request for an interview, corrections officials said.

However, in his clemency petition, sent to the governor on Tuesday, Brodell says that "After the shooting Mr. Quesineberry was devastated by what he had done. . . . Mr. Quesinberry was so upset he contemplated committing suicide, but he did not do so because he had been taught that suicide was an unforgiveable sin."

Brodell complained that Quesinberry's trial lawyers had failed to have mental health experts testify on behalf of their client.

Had they done so, "the jury would have learned that Mr. Quesinberry suffers from neurological and psychological dysfunctions that inhibit his ability to openly express remorse. The jury would have understood that Mr. Quesinberry's fear when he was unexpectedly confronted by Mr. Haynes triggered an extreme response traceable to Mr. Quesinberry's traumatic experiences of violence" earlier in his life.

"Such information is not simply something that could have made the jury 'feel sorry' for Mr. Quesinberry. Rather, the patterns of abuse that he suffered and the resulting behavioral dysfunctions . . . are absolutely essential to understanding the tragic confluence of events that confronted Mr. Quesinberry in Tri-City," Brodell wrote.

Quesinberry's maternal aunt, Lana David, of Houston, gave a deposition that accompanied the clemency petition. David is the sister of Quesinberry's mother, Shirley Quesinberry, who killed herself in 1963.

"I attended Shirley's funeral, where I learned from George Sr. and other family members what had happened. George and his sister Rhonda had seen their mother when she was killed. The description of the scene was gruesome, and George was found covered with blood," she said.

David said that when George and Rhonda came to live with her, they "were in terrible condition. They were filthy and malnourished. They both woke up screaming in the middle of the night from nightmares, and they carried on imaginary conversations with their mother."

Robert P. Hart, a clinical neuropsychologist and a professor at the Department of Psychiatry at Virginia Commonwealth University's Medical College of Virginia, said in an affidavit that "The records I have received indicate that Mr. Quesinberry suffered extensive emotional, physical and sexual abuse and trauma during childhood."

"Mr. Quesinberry witnessed his mother's violent death when he was about 2 years and 3 months old. He was reportedly raped by his paternal grandfather before he was four years old. He suffered physical abuse that was sometimes severe at the hands of his stepgrandfather and father throughout early childhood and adolescence," Hart wrote.

Brodell asks Gilmore to spare his client's life.

"He is not a sociopathic killer," he argues. "Instead, he is a man who suffered horrific physical and mental abuse throughout his childhood. "Crippled by undiagnosed (though curable) psychological dysfunction, a lack of formal education, and substance abuse, he nevertheless had never hurt anyone until he was confronted by Tommy Haynes," Brodell pleads.

But Elizabeth Fabian, one of Haynes' daughters, is not impressed with Quesinberry's problems.

"I don't think that his background is an excuse for what he did," she said. "I just don't feel that that's an excuse."

 
  


  

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 98-3

GEORGE ADRIAN QUESINBERRY, JR., Petitioner-Appellant,

v. 

JOHN TAYLOR, Warden, Sussex I State Prison, Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CA-95-883-3)

Argued: September 21, 1998
Decided: December 7, 1998

Before NIEMEYER and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

BUTZNER, Senior Circuit Judge:

George Quesinberry appeals the district court's denial of his peti- tion for a writ of habeas corpus. Quesinberry was convicted of capital murder, breaking and entering with the intent to commit larceny and robbery, and the use of a firearm in the commission of a burglary, robbery, and capital murder. He was sentenced to death. We affirm the district court's judgment.

I

The facts are briefly outlined in this opinion; a full recitation may be found in the Virginia Supreme Court opinion on direct appeal. Quesinberry v. Commonwealth , 241 Va. 364, 368-70, 402 S.E.2d 218, 221-22 (1991). Absent exceptional circumstances, a state court's find- ings of fact are binding on this court. Sumner v. Mata , 449 U.S. 539, 546-47 (1981).

On September 25, 1989, Quesinberry and Eric K. Hinkle broke into the warehouse of Tri City Electric Company. Although they did not expect to find anyone at the warehouse, Quesinberry had with him a gun which he had taken from his step-mother's home. They arrived at the warehouse at approximately 6:00 a.m. and pried open a rear door with a screwdriver. While in the building Quesinberry and Hinkle stole a pair of walkie-talkies, three rolls of stamps, and rolls of coins.

When Thomas L. Haynes, the owner of Tri City, found the intruders in a warehouse office, he asked them what they were doing. Quesinberry told Hinkle to shoot Haynes, but Hinkle did not fire. Quesinberry took the gun from Hinkle and shot Haynes twice in the back. As Hinkle and Quesinberry were leaving the warehouse, they passed by Haynes, who was lying on the floor and tried to push him- self up. Quesinberry hit Haynes on the head at least twice with the pistol.

Quesinberry and Hinkle learned of Haynes' death from a television report. Hinkle turned himself in later that day and gave a report that implicated Quesinberry. Quesinberry was arrested, and after being advised of his rights gave a detailed statement to the police which described his role in the murder.

On January 22, 1990, a Chesterfield County, Virginia, grand jury indicted Quesinberry for capital murder, breaking and entering with the intent to commit larceny and robbery, and the use of a firearm in the commission of burglary, robbery, and murder. On May 2, 1990, Quesinberry was convicted of all charges.

On May 4, 1990, during the penalty phase of the trial, the jury found that the statutory aggravating circumstances of "future dangerousness" and"vileness" applied to Quesinberry, and he was sentenced to death. The Supreme Court of Virginia affirmed the convictions and sentence of death. Quesinberry v. Comm. , 241 Va. 364, 402 S.E.2d 218 (1991). The United States Supreme Court denied certiorari. Quesinberry v. Virginia , 502 U.S. 834 (1991).

Quesinberry filed his state habeas corpus petition with the help of two court-appointed attorneys on April 20, 1993. On March 3, 1994, the petition was denied. The Supreme Court of Virginia denied his appeal on December 8, 1994, and his petition for rehearing on Janu- ary 13, 1995. The United States Supreme Court denied certiorari on June 19, 1995. Quesinberry v. Murray , 515 U.S. 1145 (1995).

On April 19, 1996, Quesinberry, with the assistance of court- appointed counsel, filed his first federal petition for a writ of habeas corpus. On October 20, 1997, the district court dismissed the petition, explaining its reasons in a 53-page memorandum opinion. It subse- quently granted a certificate of probable cause. This appeal followed.

Quesinberry raises four issues, which he describes as follows: 1. The district court erroneously held that Quesinberry could not establish cause to explain the procedural default resulting from the refusal of state habeas coun- sel to pursue meritorious claims.

2. The district court erred when it applied a procedural bar to Quesinberry's claim that the trial court violated Que- sinberry's constitutional rights when it (i) inadequately instructed jurors regarding Quesinberry's Fifth Amend- ment rights, (ii) received the jurors' verdicts based on the inadequate instructions, (iii) released the jurors from the guilt phase proceedings, (iv) denied Quesinberry's request for a mistrial, and (v) inadequately recharged the jurors.

3. The district court erred in holding as a matter of law that trial counsel were not ineffective in failing to inter- view Eric Hinkle or otherwise discover the information he possessed regarding the trial issues.

4. The district court erred in finding that good cause had not been shown to grant Quesinberry's discovery- related motions.

We review the district court's conclusions of law de novo , and we will not set aside its findings of fact unless they are clearly erroneous. Smith v. Angelone , 111 F.3d 1126, 1131 (4th Cir. 1997); Fed. R. Civ. P. 52. We agree with the district court that the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) is inapplicable because Quesinberry's federal petition for a writ of habeas corpus was pending prior to the effective date of the AEDPA. See Lindh v. Murphy , 117 S.Ct. 2059, 2063 (1997).

II

After he was convicted, Quesinberry appealed to the Virginia Supreme Court, but he did not allege ineffective assistance of his trial counsel. Quesinberry then filed a petition for habeas corpus in state court, complaining for the first time about numerous deficiencies in his counsel's representation during trial.

Quesinberry's first issue in his federal proceeding is premised on what he calls the abandonment of his state habeas counsel who declined to appeal to the state appellate court several claims including ineffective assistance of counsel during his trial.

The federal district court, finding no cause, held that Quesinberry's claims were defaulted because he did not assign them as error in his petition to the Virginia Supreme Court pertaining to his appeal from the dismissal of his state habeas corpus. See Coleman v. Thompson , 501 U.S. 722, 750 (1991) (requiring cause, among other reasons, for excusing a default).

The difficulty with Quesinberry's first issue is the lack of a consti- tutional right to counsel in a collateral attack upon his conviction. See Pennsylvania v. Tinsley , 481 U.S. 551, 555 (1987). Inasmuch as Que- sinberry had no constitutional right to counsel to represent him in state habeas proceedings, he cannot allege deficiencies of his state habeas counsel as a cause for excusing his default. Mackall v. Angelone , 131 F.3d 442, 446-49 (4th Cir. 1997). In agreement with the district court, we are not persuaded by Quesinberry's arguments that we should depart from the clearly established precedent that brings about this result.

III

Quesinberry bases his second claim on the trial court's alleged infringement of his Fifth Amendment right not to testify. He asserts that the trial court did not properly instruct the jury on this issue.

At the beginning of the trial the state judge told the jury that Que- sinberry might not testify and that if he did not testify "the Fifth Amendment of the Constitution prevented the jury from considering that." See Quesinberry , 241 Va. at 375, 402 S.E.2d at 225.

During the course of the proceedings defense counsel presented an instruction that states "[t]he defendant does not have to testify. The exercise of that right cannot be considered by you." See Quesinberry , 241 Va. at 375 n.4, 402 S.E.2d at 225 n.4. Quesinberry chose not to testify.

When the trial judge read the jury instructions, he inadvertently omitted the instruction that Quesinberry's failure to testify could not be held against him. Apparently neither the prosecution nor the defense called the omission to the judge's attention. After the jury returned its verdict of guilt in the first phase of the trial, the judge told the jury to go to lunch in the custody of the sheriff and reminded them:

[B]ecause the case is still going on and there are other mat- ters of such severity that you must consider, do not talk among yourselves; do not let anybody talk to you; do not let anybody approach you; do not respond to any comments; try to avoid what would be inadvertent communication from anyone of any source.

See Quesinberry , 241 Va. at 374, 402 S.E.2d at 225. While at his own lunch, the trial judge realized that he had omitted to give the instruc- tion pertaining to the defendant's right not to testify. The trial judge notified counsel of the omitted instruction. Quesinberry moved for a mistrial, and the judge denied the motion. The judge then told the jury: "You are instructed that the defendant does not have to testify. The exercise of that right cannot be considered by you." Quesinberry , 241 Va. at 376, 402 S.E.2d at 226.

The judge also told the jury to consider this instruction along with the other instructions and the evi- dence. He asked them to retire to their room and to state their verdict in written form. In about 15 minutes, the jury returned with their ver- dict, finding Quesinberry guilty. Quesinberry , 241 Va. at 377, 402 S.E.2d at 226.

On his direct appeal to the Supreme Court of Virginia, Quesinberry assigned error to the trial judge's denial of his motion for a mistrial. The Supreme Court carefully and fully recounted the facts. See Quesinberry , 241 Va. at 374-77, 402 S.E.2d at 225-26. It then held:

Quesinberry contends that because Code 19.2-264.3 creates a bifurcated proceeding in a capital murder trial, the jury was discharged from its responsibilities on the issue of guilt after its initial verdict had been returned and, therefore, the trial court should not have reinstructed the jury. We dis- agree.

We have consistently applied the rule . . . that once a jury is discharged and leaves the presence of the court, it cannot be reassembled to correct a substantive defect in its verdict. Here, however, the jury had neither been discharged nor left the presence of the court. . . . The sanctity of the jury was neither violated nor subjected to any hazard of suspicion. It was the trial court's responsibility to reinstruct the jury, and we hold that the court properly discharged that duty.

Quesinberry , 241 Va. at 377, 402 S.E.2d at 226 (citations omitted).

In his assignments of error and in his brief on direct appeal, Que- sinberry did not refer to any federal constitutional provision. Instead he cited Virginia Code Ann. 19.2-264.3 (bifurcated trials) and Vir- ginia case law dealing with discharge of juries in trials which were not bifurcated.

The Virginia Supreme Court's disposition was based on an independent state law ground. Discussing whether the jury was discharged as a matter of Virginia law, it held that in a bifurcated trial while the jury was in the custody of the sheriff and within the control of the court, it had not been discharged.

Quesinberry again raised the same issue in his federal petition for habeas corpus. In these proceedings he adverted to his federal consti- tutional right not to testify. But he premised his argument on the assertion that the jury was discharged at the conclusion of the guilt phase of the bifurcated trial and, consequently, he argues, the district court erred in belatedly instructing them. These arguments fail because the Virginia Supreme Court held that as a matter of Virginia law the jury was not discharged.

Because Quesinberry did not contend on direct appeal that the rein- struction violated a federal constitutional right, he has failed to exhaust the claim he now seeks to raise. See Duncan v. Henry , 513 U.S. 364, 365-66 (1995) (per curiam) (holding that argument to state court that an evidentiary ruling by trial court violated state law was insufficient to exhaust claim that the ruling constituted a violation of a federal constitutional right, and rejecting the argument that similar- ity of claims is adequate to exhaust).

Because presentation of this claim to the state court at this juncture would be fruitless, see Va. Code Ann. 8.01-654(B)(2) (Michie Supp. 1998) (providing that "[n]o writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition"), it is properly considered to be procedurally barred. See

George v. Angelone , 100 F.3d 353, 363 (4th Cir. 1996) ("A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture."). We therefore hold this claim to be procedurally defaulted.

This case is not unlike Summers v. United States , 11 F.2d 535 (4th Cir. 1926), in which the district court realized, after the jury had ren- dered its verdict, that the defendant was absent when it gave a supple- mentary charge. Summers , 11 F.2d at 585-86. Although the court had discharged the jury, it had remained in the courtroom with no opportunity to discuss the case with others, without the intervention of any other business.

The court then reinstructed the jury, which retired again and brought back the same verdict of guilty. Id. at 586. On appeal this court held, as a matter of federal law, that as long as the jury "remains an undispersed unit, within control of the court," the jury had not been finally discharged.

In the instant case, the district court properly dismissed this issue.

IV

Quesinberry's third claim is that the district court erred in holding that trial counsel was not ineffective in failing to interview Hinkle or otherwise discover information he possessed regarding the murder. He claims that "Trial Counsel were wholly unprepared to respond to the Commonwealth's use of Hinkle at trial or to adequately cross- examine Hinkle." Appellant's Br. at 60. Quesinberry asserts that if trial counsel were properly prepared, they would have brought out that prosecutors coached Hinkle to testify that Quesinberry struck Haynes more than once.

The Commonwealth used Hinkle only in the penalty stage of the trial. His testimony did not substantially deviate from Quesinberry's confession. Quesinberry's counsel had a private investigator interview Hinkle twice; then Hinkle's counsel objected to additional interviews. Quesinberry's counsel also moved for discovery, and the Common- wealth opened its files which provided the transcript of Hinkle's interview with the police.

Quesinberry's counsel cross-examined Hinkle on several key points. Hinkle testified that he saw Quesinberry strike the victim with a pistol once, but he heard more blows. Hinkle admit- ted on cross-examination that he had previously stated that Quesin- berry hit Haynes only once, that Hinkle had been drinking the night of the murder, and that Hinkle expected to benefit from his testimony.

Hinkle's testimony is consistent with the medical examiner's; based on the autopsy and photographs taken by the medical examiner, the Supreme Court found that there were at least two blows to the vic- tim's head. This finding is binding on us. Sumner v. Mata , 449 U.S. at 546 -47. The district court held that Quesinberry could not establish prejudice. Strickland v. Washington , 466 U.S. 668 (1984), requires petitioner to show that his counsel's performance was objectively unreasonable and that he was prejudiced by counsel's performance. Strickland , 466 U.S. at 687 -89, 694.

To establish prejudice a peti- tioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. If there is no prejudice, a court need not review the reasonableness of counsel's performance. Id. at 697.

Quesinberry fails to meet the Strickland prejudice standard. As the district court noted, trial counsel were aware that by cross-examining Hinkle exhaustively they would be opening up testimony concerning the vileness of Quesinberry's acts. Trial counsel knew of damaging information that Hinkle had provided to the private investigator, and they were unsure if the prosecution possessed the same knowledge.

Moreover, discrepancies in Hinkle's versions of events were rela- tively minor in light of all the evidence against Quesinberry. See Strickland , 466 U.S. at 695 ("In making this[prejudice] determina- tion, a court hearing an ineffectiveness claim must consider the total- ity of the evidence before the judge or jury."). The district court did not err.

V

Quesinberry's final assignment of error pertains to the district court's denial of his request for discovery. Rule 6(a) of the Rules Governing Section 2254 Cases requires a habeas petitioner to show good cause before he is afforded an opportunity for discovery. A dis- trict court's decision on good cause is reviewed for an abuse of dis- cretion. Bracy v. Gramley , 117 S.Ct. 1793, 1799 (1997).

Good cause is shown if the petitioner makes a specific allegation that shows reason to believe that the petitioner may be able to demonstrate that he is entitled to relief. Harris v. Nelson , 394 U.S. 286, 300 (1969); Bracy , 117 S.Ct. at 1799 (approving the Harris standard).

Quesinberry says that he made specific allegations establishing good cause justifying discovery. These allegations dealt with the alleged ineffectiveness of his counsel, influences the prosecution allegedly brought to bear on Hinkle, and the abandonment of defaulted claims by state habeas counsel. We have dealt with these subjects in Parts II and IV of this opinion. His requests for discovery are without merit, and the district court did not abuse its discretion in denying them.

VI

The judgment of the district court is affirmed.

AFFIRMED

 

 

 
 
 
 
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