Ricky Gray v. David Zook

806 F.3d 783, 2015 WL 7567402
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 25, 2015
Docket12-5, 14-3
StatusPublished
Cited by59 cases

This text of 806 F.3d 783 (Ricky Gray v. David Zook) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ricky Gray v. David Zook, 806 F.3d 783, 2015 WL 7567402 (4th Cir. 2015).

Opinions

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge WYNN joined. Senior Judge DAVIS wrote a separate opinion concurring in part and dissenting in part.

DIAZ, Circuit Judge:

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

[787]*787Accordingly, we affirm the judgment of the district court.

I.

A.

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

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

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

B.

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

The Supreme Court of Virginia dismissed Gray’s habeas claims, save one not relevant here. In dismissing Claim III, the court held that Gray had shown neither that his trial counsel performed unreasonably, nor that he suffered prejudice [788]*788from deficient performance, the two requirements under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court supported its holding with the following findings of fact, relying heavily on the affidavit of Gray’s trial attorneys:

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

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

C.

Gray next filed a federal habeas petition, arguing with respect to Claim III2 that the Supreme Court of Virginia’s dismissal of the claim was based on an unreasonable determination of the facts under AEDPA’s § 2254(d)(2). The district court determined that, although the state court made credibility determinations and weighed the parties’ affidavits without an evidentiary hearing, “Section 2254(d) affords wide latitude to state courts in fashioning state habeas procedures and ... the procedures adopted by the state court were not, within the context of this case, inherently unreasonable or unreliable.” Gray v. Pearson, No. 1:11-cv-630, 2012 WL 1481506, at *12 (E.D.Va. Apr. 27, 2012). Considering “the totality of the state court record,” the district court concluded that “the state court’s determinations of fact were not unreasonable.” Id.

D.

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

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Bluebook (online)
806 F.3d 783, 2015 WL 7567402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ricky-gray-v-david-zook-ca4-2015.