UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CALVIN EUGENE SWANN,

Petitioner-Appellant,

v.

No. 98-20

JOHN TAYLOR, Warden, Sussex I

State Prison,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CA-96-752-R)

Argued: December 2, 1998

Decided: February 18, 1999

Before MICHAEL and TRAXLER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Traxler wrote the opinion, in which Judge Michael and

Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Mark Evan Olive, LAW OFFICES OF MARK E.

OLIVE, P.A., Tallahassee, Florida, for Appellant. Donald Richard

Curry, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF:
Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER, Richmond, Virginia, for Appellant. Mark L.

Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY

GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Calvin Eugene Swann ("Swann"), whom the Commonwealth of

Virginia has sentenced to death and life imprisonment on convictions

for capital murder and robbery, respectively, appeals from a judgment

denying his application for a writ of habeas corpus brought under 28

U.S.C.A. § 2254 (West 1994 & Supp. 1998). For the reasons set forth

below, we affirm in part, vacate in part, and remand with instructions.

I.

The following factual recitation draws primarily from the facts set

forth by the Virginia Supreme Court in Swann v. Commonwealth, 441

S.E.2d 195 (Va. 1994). On the evening of November 7, 1992, Swann

roamed the streets of Danville, Virginia in search of a house to rob

for money to purchase cocaine. He approached the house of Conway

Forrest Richter ("Richter") upon noticing that the front door was

open. Wearing a mask and armed with a shotgun, Swann opened the

storm door to Richter's house and entered the living room, where he

observed Richter eating supper at his kitchen table. Swann pointed his

shotgun at Richter and said, "This is a stickup." Richter reacted by

charging toward Swann, and Swann shot him in the chest from a distance of eight to ten feet. Richter collapsed on the front porch and

died within thirty minutes. Swann fled the scene after removing

approximately $60 from Richter's wallet.

 2
In the course of investigating Richter's killing, Danville police suspected Swann and focused their attention on him after learning that

he had disposed of a shotgun several weeks after the killing. During

police questioning, Swann confessed to killing Richter and prepared

a written statement to that effect. He was then indicted by a grand jury

in the Circuit Court of the City of Danville on five charges arising

from the killing, including capital murder and robbery.

The matter proceeded to trial solely on the charges of capital murder and robbery. At the conclusion of the guilt phase, the jury

returned a verdict of guilty on both charges, and fixed Swann's punishment for robbery at life imprisonment. At the conclusion of the

penalty phase, the jury found there to be a probability that Swann

"would commit criminal acts of violence that would constitute a continuing serious threat to society." Va. Code Ann.§ 19.2-264.4.C.

(Michie 1995 & Supp. 1998). Based upon that finding, the jury fixed

Swann's punishment for capital murder at death. The trial court thereafter imposed the sentences recommended by the jury. The Virginia

Supreme Court, on direct appeal, affirmed Swann's convictions and

sentences against numerous assignments of error. See Swann, 441

S.E.2d at 207. The United States Supreme Court denied Swann's petition for a writ of certiorari. See Swann v. Virginia, 513 U.S. 889

(1994).

Swann subsequently sought collateral relief by bringing a petition

for a writ of habeas corpus before the Virginia Supreme Court, which

dismissed the petition in a summary order. In so doing, the court

determined that consideration of many of the claims presented was

barred under the procedural rules set forth in Hawks v. Cox, 175

S.E.2d 271, 274 (Va. 1970) (holding that claims adjudicated on their

merits on direct appeal will not be considered in state habeas proceeding), and Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974)

(holding that claims that could have been but were not raised on direct

appeal will not be considered in state habeas proceeding). The court

then expressed its finding of "no merit" with respect to Swann's

remaining claims. J.A. 773.

On December 6, 1996, Swann filed the present application in the

district court, seeking a writ of habeas corpus under § 2254.1 The dis-

_________________________________________________________________

1 Because Swann filed his application after the April 24, 1996 effective

date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of

 3
trict court, adopting the report and recommendation of a magistrate

judge to whom the matter had been referred, entered judgment denying the application. The district court subsequently denied Swann's

motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. We then granted Swann's application

for a certificate of appealability.

II.

Swann asserts that the trial court's refusal to appoint a psychiatrist

to evaluate him and to assist in the preparation and presentation of his

defense gave rise to a constitutional violation under Ake v. Oklahoma,

470 U.S. 68 (1985). In Ake, the Supreme Court held that when an

indigent criminal defendant's sanity at the time of the offense is likely

to be a significant factor at trial, the Due Process Clause of the Fourteenth Amendment requires that a state "assure the defendant access

to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the

defense." Id. at 83. The Court further held that such assistance is constitutionally mandated when a capital defendant's future dangerousness is to be a significant factor at the penalty phase of the trial. See

id. at 83-84.

A.

We begin our analysis of Swann's Ake claim by examining the relevant proceedings in the state trial court. Following indictment,

Swann moved under Va. Code Ann. § 19.2-264.3:1.A (Michie 1995

& Supp. 1998) for the appointment of a mental health expert to evaluate him and to assist in the preparation and presentation of his

defense. The trial court granted the motion and appointed Dr. Stanton

_________________________________________________________________

1996, Pub.L. No. 104-132, 110 Stat. 1214, our analysis of the claims

presented herein is governed by §§ 2254(d) and (e) as amended by § 104

of the AEDPA. See Lindh v. Murphy, 117 S. Ct. 2059, 2067-68 (1997).

The Commonwealth does not contend that it has taken the necessary

measures to qualify as an "opt-in" state for purposes of § 107 of the

AEDPA such that the provisions of § 107 apply. See Sexton v. French,

163 F.3d 874, 876 n.1 (4th Cir. 1998).

 4
E. Samenow ("Dr. Samenow"), a clinical forensic psychologist, for

those purposes.

After conducting a three-day evaluation of Swann, Dr. Samenow

prepared a report in which he noted that Swann had a history of mental illness, for which he had been previously hospitalized. Dr. Samenow concluded, however, that Swann was "not impaired by mental

illness" at the time that he shot and killed Richter. J.A. 38. In a separate report, Dr. Samenow expressed his conclusion that Swann was

"competent to stand trial" on the pending charges. J.A. 39.

Pursuant to Va. Code Ann. § 19.2-264.3:1.E, Swann provided

notice to the trial court of his intention "to present the testimony of

an expert witness to support a claim in mitigation" in case he should

be convicted of capital murder. On the Commonwealth's motion, the

trial court directed that Swann be evaluated by Dr. Arthur Centor

("Dr. Centor"), a clinical forensic psychologist, "concerning the existence or absence of mitigating circumstances relating to [Swann's]

mental condition at the time of the offense." Va. Code Ann. § 19.2-

264.3:1.F. Dr. Centor evaluated Swann and concluded that Swann

revealed no symptoms of mental illness.

Although the trial court had already appointed Dr. Samenow, who

accordingly evaluated Swann and rendered conclusions regarding his

mental condition, Swann brought a second motion for the appointment of a mental health expert under Va. Code Ann.§ 19.2-

264.3:1.A. This time, however, Swann explicitly requested the

appointment of a psychiatrist.2 In so doing, Swann noted that his purpose in bringing the motion was not "to obtain a more favorable

report" than that which Dr. Samenow had prepared. J.A. 40. Rather,

Swann requested appointment of a psychiatrist to assist him in the

"presentation of mitigation evidence should [he] be convicted of capital murder." J.A. 40. In particular, Swann represented that a psychiatrist was necessary "for further evaluation on the issue of

_________________________________________________________________

2 A psychiatrist is a physician who specializes in "that branch of medicine which deals with the study, treatment, and prevention of mental disorders." Dorland's Illustrated Medical Dictionary 1383 (27th Ed. 1988).

Apparently, Dr. Samenow and Dr. Centor were not physicians with the

right to prescribe medications.

 5
schizophrenia as it relates to [him] and medications for said disease

and the effects of medications upon [him]. . .." J.A. 40. He argued

that because Dr. Samenow was not a psychiatrist, Dr. Samenow was

"not able nor qualified to examine [Swann] as to these issues, nor testify to same." J.A. 40. Swann supported this argument with a letter

written by Dr. Samenow to the trial court days before the motion was

filed. In the letter, Dr. Samenow stated in relevant part:

I recommend that the defense be afforded the opportunity to

have a psychiatrist examine Mr. Swann. Inasmuch as there

are issues of medication (surrounding hospitalization and

other aspects of his functioning), I am not qualified medically to render an opinion.

J.A. 42. Swann indicated that Dr. Miller M. Ryans ("Dr. Ryans"), a

psychiatrist who had previously treated him, was"available and willing" to evaluate Swann. J.A. 40.

The trial court ultimately denied Swann's motion for the appointment of a psychiatrist, explaining that "the Court had previously

appointed a clinical psychologist" to evaluate Swann. J.A. 381. There

is no indication from the record that Swann renewed his motion for

the appointment of a psychiatrist at any point before or during the trial

proceedings. In any event, as will be discussed later in this opinion,

Dr. Ryans did testify in Swann's behalf, thereby making available to

Swann, at trial, testimony from a psychiatrist who was trained and

licensed to deal with aspects of medication relevant to Swann's situation.

During the penalty phase of the trial, the Commonwealth sought a

jury finding of future dangerousness, see Va. Code Ann. § 19.2-

264.4.C, by presenting extensive evidence of past violent acts committed by Swann. In particular, the jury heard evidence that Swann

had robbed employees at a fast-food restaurant in May 1974, and that

he had struck an individual while participating in a burglary and

grand larceny in September 1992. The jury also learned that Swann,

in March 1989, had broken into the home of Rose Marie Gibson at

approximately 11:00 p.m. and had entered her bedroom. When Gibson informed Swann that she recognized him, he had hit her on the

head with a brick. See Swann, 441 S.E.2d at 205.

 6
The Commonwealth also offered evidence that in October 1992,

Swann had robbed three different women of their pocketbooks. One

such woman, Irene Harris Carter ("Carter"), testified that Swann shot

at her and hit her on the head with a gun when she resisted. The jury

learned that Swann's robbery and murder of Richter occurred within

only ten days of the Carter robbery. Finally, the evidence demonstrated that less than two weeks after the Richter murder, Swann

assaulted a police officer who had arrested him for cocaine possession.

In an effort to establish the existence of mitigating circumstances,

Swann presented the testimony of Dr. Samenow and Dr. Ryans. Dr.

Samenow's testimony concerned his evaluation of Swann and his

review of Swann's medical records, which indicated that Swann's

mental condition had been successfully controlled with antipsychotic

medication. Dr. Samenow opined that Swann "could function and perform satisfactorily in a structured environment where his medications

are administered and controlled." J.A. 270.

Dr. Ryans, the psychiatrist, testified about his prior treatment of

Swann. Specifically, Dr. Ryans expressed his opinion that Swann had

"a chronic undifferentiated schizophrenia," J.A. 176, and explained

that the treatment for Swann's condition was antipsychotic medication. Dr. Ryans also testified that during Swann's prior hospitalizations, Swann responded very well to antipsychotic medication and

was successfully returned to a state of remission and "very normal"

behavior. J.A. 180. Finally, Dr. Ryans offered extensive testimony

concerning the dosage of medication prescribed for Swann, the relationship between the dosage and the severity of Swann's condition,

the relationship between the dosage and the probable length of time

before a relapse would occur, and the side effects of the medication.

B.

Before addressing the merits of Swann's Ake claim, we must

resolve two preliminary matters. First, we must determine whether

Swann's claim is barred as a consequence of his failure to present the

claim in his state habeas petition. Second, we must decide whether

the limitations upon federal habeas relief set forth in 28 U.S.C.

 7
§ 2254(d) govern our analysis of the claim or whether we must review

the claim de novo.

1.

The Commonwealth contends that we may not review the merits

of Swann's Ake claim because he defaulted the claim in state court

by failing to present it in his state habeas petition. We disagree.

Swann presented his Ake claim to the Virginia Supreme Court on

direct appeal. Thus, he was not required then to present the claim on

state habeas in order to preserve a federal habeas forum. See Castille

v. Peoples, 489 U.S. 346, 350 (1989).

2.

As amended by § 104 of the AEDPA, § 2254 imposes limitations

upon federal habeas relief with respect to a federal claim adjudicated

on the merits in state court and subsequently presented to a federal

court in a § 2254 application. In particular, the amended statute prohibits federal habeas relief on any claim"adjudicated on the merits

in State court proceedings," 28 U.S.C.A. § 2254(d), unless that adjudication resulted in a decision that was: (1) "contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;" or (2) "based

on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding." 28 U.S.C.A. § 2254(d)(1)-

(2).

Swann argues that his federal constitutional claim under Ake was

not "adjudicated on the merits in State court proceedings" within the

meaning of § 2254(d), because the Virginia Supreme Court based its

ruling explicitly and exclusively on state-law grounds. Swann thus

contends that our analysis of his Ake claim is not governed by the

§ 2254(d) limitations upon federal habeas relief. The Commonwealth

argues in opposition that § 2254(d) controls, notwithstanding the lack

of reference to federal authority or to the United States Constitution

in the Virginia Supreme Court's analysis, because the court considered the appropriate factors under Ake in determining that Swann was

not entitled to the appointment of a psychiatrist.

 8
We recognize that § 2254(d) may govern the disposition of a federal constitutional claim even though the state court's analysis of that

claim refers solely to state law. See Green v. French, 143 F.3d 865,

885 n.4 (4th Cir. 1998). For example, in Green , the court held that a

§ 2254 applicant's federal constitutional claim that the North Carolina

trial court coerced the jury into imposing his death sentence was "adjudicated on the merits" within the meaning of§ 2254(d), despite the

North Carolina Supreme Court's failure to mention the United States

Constitution or any federal precedent, including the controlling precedent of Lowenfield v. Phelps, 484 U.S. 231 (1988). See Green, 143

F.3d at 885 n. 4. Although acknowledging that it was"somewhat

unclear whether Green's federal claim under Lowenfield was presented to and adjudicated by the North Carolina Supreme Court," we

ultimately determined that § 2254(d) controlled because the North

Carolina Supreme Court "apparently applied Lowenfield's `totality of

the circumstances test,'" and also "relied upon its own precedents

which, in turn, cited to and relied upon federal precedents falling

within the Lowenfield line of cases." Green, 143 F.3d at 885 n. 4.

Having reviewed the opinion of the Virginia Supreme Court in the

present matter, however, we are satisfied that Swann's Ake claim was

not "adjudicated on the merits" within the meaning of § 2254(d).

Unlike the situation presented in Green, the Virginia Supreme Court's

disposition of Swann's claim that he was entitled to the appointment

of a psychiatrist does not mention or appear to apply the controlling

federal precedent of Ake, nor does it cite or rely upon state precedents

that, in turn, cite or rely upon Ake. Rather, the Virginia Supreme

Court, after reviewing the trial testimony of Drs. Samenow and

Ryans, concluded only that the trial court's refusal to appoint a psychiatrist did not constitute an abuse of discretion under Va. Code

Ann. § 19:2-264.3:1. Under these circumstances, we conclude that the

§ 2254(d) limitations upon federal habeas relief do not govern our

analysis of Swann's claim under Ake.

C.

We now turn to the merits of the claim. Swann first contends that

Ake literally mandated the appointment of a psychiatrist, as opposed

to a clinical forensic psychologist, to evaluate him and to render conclusions on issues pertaining to his mental condition, such as compe-

 9
tency to stand trial, sanity at the time of the offense, and future

dangerousness. The logical implication of this contention is that the

appointment of a mental health expert other than a psychiatrist automatically violates the due-process rights of an indigent criminal

defendant whose sanity or future dangerousness is to be a significant

factor at trial.

In the alternative, Swann contends that even if Ake did not literally

mandate the appointment of a psychiatrist, such an appointment was

mandated under the particular circumstances of this case. Swann supports this contention by referring to the fact that he had been treated

in the past with antipsychotic medication for a serious mental illness,

namely chronic undifferentiated schizophrenia. Swann argues that his

mental history raised issues of medication, dosage, and effects of noncompliance with medication, which can be properly addressed only

by a psychiatrist. Swann thus argues that Dr. Samenow, as a clinical

forensic psychologist, lacked the qualifications necessary to address

those issues.

1.

Because Ake did not mandate the appointment of a psychiatrist

either literally or under the circumstances of this case, we conclude

that Swann's right to due process under Ake was not violated. Contrary to Swann's contention that the appointment of a mental health

expert other than a psychiatrist automatically violates Ake, we have

established that a state may satisfy its constitutional obligation under

Ake with the appointment of a competent psychologist. See Wilson v.

Greene, 155 F.3d 396, 401 (4th Cir. 1998) (holding that Ake requires

a state to ensure that a defendant has access "to a psychiatrist or

psychologist, not with guaranteeing a particular substantive result.")

(emphasis added). The Commonwealth satisfied its constitutional

obligation under Ake, therefore, when Dr. Samenow fulfilled the

responsibilities contemplated by Ake, i.e., to evaluate Swann, to

assess his sanity at the time of the offense, and to assist with the

presentation of mitigation evidence. See Ake, 470 U.S. at 82-84.

Furthermore, we conclude that Ake did not mandate the appointment of a psychiatrist in the present case, because Dr. Samenow possessed the qualifications necessary to fulfill his responsibilities.

 10
Although indicating in a brief letter to the trial court that he was not

qualified medically to render an opinion on issues of medication "surrounding hospitalization and other aspects of [Swann's] functioning,"

J.A. 42, Dr. Samenow in no way suggested that he was not qualified

to assess Swann's competency to stand trial or to assess Swann's sanity at the time of the offense. Swann, in fact, noted in his motion for

the appointment of a psychiatrist that he did not seek "to obtain a

more favorable report." J.A. 40. Moreover, Swann elicited no statements from Dr. Ryans or any other expert to the effect that Dr. Samenow, as a clinical forensic psychologist, was not qualified to render

an opinion on such matters. Lastly, Dr. Samenow did not testify at

trial that he was not qualified to assess the likely success of Swann's

treatment with antipsychotic medication in the future. Indeed, Dr.

Samenow testified that Swann's condition had been successfully controlled with antipsychotic medication in the past, and that Swann may

again respond well to such medication in a structured environment.

We thus have no basis to conclude that Dr. Samenow lacked the qualifications necessary to testify on the issue of Swann's future dangerousness.

2.

In support of his position that Ake mandated the appointment of a

psychiatrist under the particular circumstances of this case, Swann

relies primarily upon an affidavit that he procured only after he filed

the present application in the district court. The affidavit in question

was prepared by Dr. Mark Mills ("Dr. Mills"), a psychiatrist. Dr.

Mills opines in the affidavit that, for various reasons, a "psychiatrist

was necessary to determine [Swann's] trial competence, the mental

processes that had occurred at and around the time of the offense, the

mental processes that operated during Mr. Swann's confession, and

whether Mr. Swann would be a future danger." J.A. 1014-15.

We decline to consider the Mills affidavit in our disposition of

Swann's Ake claim because Swann failed to present that affidavit at

any point during the proceedings in the state courts of Virginia, and

he offers no explanation for that failure in the present appeal. State

prisoners are encouraged to develop all material facts in state court in

the interests of finality, comity, judicial economy, and a resolution of

issues in the most appropriate forum. See Keeney v. Tamayo-Reyes,

 11
504 U.S. 1, 8 (1992). Those interests would be frustrated if a federal

court reviewing a habeas application considered evidence that the

applicant never sought to obtain and offer in state court, even though

such evidence was available. A federal court's refusal to consider

such evidence, on the other hand, advances the above interests by

encouraging state prisoners to obtain and offer all available evidence

during the pendency of state proceedings.

Furthermore, we conclude that the allegations set forth in the Mills

affidavit do not entitle Swann to an evidentiary hearing in federal

court on his Ake claim. Section 2254, as amended by § 104 of the

AEDPA, imposes limitations upon the ability of a§ 2254 applicant to

obtain an evidentiary hearing in federal court. Specifically, if an "applicant has failed to develop the factual basis of a claim in State court

proceedings," 28 U.S.C.A. § 2254(e)(2), a federal court is prohibited

from conducting an evidentiary hearing on that claim unless the applicant demonstrates that:

(A) the claim relies on----

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2)(A)-(B) (emphasis added).

In accordance with the foregoing framework, a district court presented with a request for an evidentiary hearing must first ascertain

whether the "applicant has failed to develop the factual basis of a

claim in State court proceedings." 28 U.S.C.A.§ 2254(e)(2); see

 12
Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998). If so, the statute prohibits an evidentiary hearing on the claim in question unless the applicant makes the requisite demonstration under

§ 2254(e)(2)(A) and (B). See id. However, an applicant has not

"failed" within the meaning of § 2254(e)(2) if the applicant "has diligently sought to develop the factual basis of a claim for habeas relief,

but has been denied the opportunity to do so by the state court." Id.

Once we determine that § 2254(e)(2) does not prohibit an evidentiary

hearing in federal court, an evidentiary hearing would be permitted

only if Swann has "allege[d] additional facts that, if true, would entitle him to relief" on his claim. Cardwell, 152 F.3d at 338 (internal

quotation marks omitted).

We find that Swann "failed to develop the factual basis" of his Ake

claim within the meaning of § 2254(e)(2), because he did not present

the Mills affidavit at any point during the proceedings in the state

courts of Virginia. Furthermore, we have no basis upon which to conclude that the state courts of Virginia denied Swann the opportunity

to offer the Mills affidavit or otherwise develop the factual basis of

his claim. See Cardwell, 152 F.3d at 337. Section 2254(e)(2) thus prohibits an evidentiary hearing in federal court on the Ake claim unless

Swann can make the requisite demonstration under§ 2254(e)(2)(A)

and (B). We are convinced that he cannot do so. The Supreme Court's

decision in Ake was rendered in 1985 and thus Swann's claim does

not rely upon "a new rule of constitutional law." 28 U.S.C.A.

§ 2254(e)(2)(A)(i). In addition, Swann cannot establish that his Ake

claim relies upon "a factual predicate that could not have been previously discovered through the exercise of due diligence[.]" 28

U.S.C.A. § 2254(e)(2)(A)(ii). Indeed, the factual predicate for the

claim had been discovered prior to the commencement of trial.

D.

We further conclude that Swann would not be entitled to federal

habeas relief on his Ake claim even if the trial court's refusal to

appoint a psychiatrist gave rise to a constitutional violation. The

Supreme Court has held that "in determining whether habeas relief

must be granted because of constitutional error of the trial type,"

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), the relevant

harmless-error inquiry is "whether the error had substantial or injuri-

 13
ous effect or influence in determining the jury's verdict," id. at 637

(internal quotation marks omitted). We have expressly determined

that Ake errors are amenable to this analysis. See Tuggle v.

Netherland, 79 F.3d 1386, 1387-88 (4th Cir. 1996). We must therefore determine whether the trial court's refusal to appoint a psychiatrist had a substantial or injurious effect or influence on the jury's

decision to fix Swann's punishment at death. See Brecht, 507 U.S. at

638. We conclude that it did not.

Swann had requested the appointment of a psychiatrist to assist him

in presenting evidence relating to medications for schizophrenia and

the effects of such medication on him. In so doing, Swann expressed

a preference for Dr. Ryans, who had previously treated Swann with

such medication during his prior hospitalizations. Although the trial

court refused to appoint him, Dr. Ryans did testify at trial and the jury

benefitted from his explanation of the nature of Swann's condition,

the types, dosage, and side effects of the antipsychotic medication

prescribed for his condition, the success of this treatment in the past,

and the likely effects of noncompliance with such medication. Before

recommending that Swann receive a sentence of death, therefore, the

jury considered Dr. Ryans's testimony despite the trial court's refusal

to appoint him.

Swann nevertheless contends that his presentation of mitigation

evidence was prejudiced by the trial court's refusal to appoint Dr.

Ryans, because Dr. Ryans testified without having recently conducted

an evaluation of Swann.3 At trial, however, Dr. Ryans testified at

length about his extensive personal treatment of Swann's condition in

the past and the results achieved, and indicated that he was familiar

with the medical records of those who subsequently treated Swann.

Moreover, Swann's failure to proffer additional testimony that he may

have elicited from Dr. Ryans had a recent evaluation been conducted

suggests that Dr. Ryans provided complete and competent testimony,

albeit not at the Commonwealth's expense. Under these circumstances, we conclude that the trial court's refusal to appoint Dr. Ryans

_________________________________________________________________

3 In support of this position, Swann relies primarily upon statements

offered by Dr. Mills in the Mills affidavit. For the reasons set forth earlier, however, we will not consider these statements and we find that they

do not entitle Swann to an evidentiary hearing on his Ake claim.

 14
did not have the requisite substantial or injurious effect or influence

on the jury's decision to fix Swann's punishment at death. See Brecht,

507 U.S. at 638. Therefore, Swann would not be entitled to federal

habeas relief even if his constitutional rights under Ake had been violated.

III.

Swann asserts that his right to trial by an impartial jury under the

Sixth and Fourteenth Amendments was violated as a consequence of

jury misconduct that ensued during the jury's penalty deliberations.

The specific allegations offered in support of this claim are derived

entirely from an affidavit prepared by Doris Pye ("Pye"), a private

investigator. Pye affirms in her affidavit that during July and August

1995, she interviewed eleven of the twelve individuals comprising the

jury in Swann's trial.

A.

The first of Swann's allegations of jury misconduct concerns Juror

Davis and evidence presented during the penalty phase of the trial that

Swann stole lawnmowers from a Wal-Mart store in June 1992.

According to the Pye affidavit, Davis realized during the trial that she

was employed at that particular store and present at the time of the

thefts. Davis recounted for the other jurors her experience of going to

the part of the store where the lawnmowers were kept at the time

when Swann would have been stealing them, but "something told her

not to open the door." J.A. 501. She then stated to the jurors that "[i]t

could have been me." J.A. 502. Although Davis shared this information with the other jurors, she did not disclose it to the trial court.

The second of Swann's allegations of jury misconduct concerns

Juror Williams and evidence presented at trial concerning Terry Williams. During the guilt phase of the trial, the jury heard a recording

of Swann discussing a burglary that he committed with Terry Williams. The victim of that burglary testified during the penalty phase

and mentioned Terry Williams by name. Coincidentally, Juror Williams served on the jury that found Terry Williams guilty of capital

murder and recommended that he be sentenced to death. Moreover,

the trial judge and prosecutor in the Terry Williams trial were the

 15
same as in the Swann trial. Juror Williams was not questioned about

his prior jury service during voir dire, and he did not disclose his jury

service in the Terry Williams case to the trial court.

Swann alleges further that the jurors, during their penalty deliberations, improperly considered whether Swann would ever become eligible for parole if he did not receive a sentence of death. According

to the Pye affidavit, several jurors speculated as to the amount of time

that Swann would actually serve in prison if only a sentence of life

imprisonment were imposed. One juror apparently desired to vote for

a sentence of life imprisonment without parole, but the trial court had

instructed the jurors that such a verdict was not an option.

B.

Based upon the foregoing allegations, Swann contends that he is

entitled to an evidentiary hearing on his jury-misconduct claim.

Accordingly, we must first ascertain whether Swann"failed to

develop the factual basis" of the claim in the state courts of Virginia.

28 U.S.C.A. § 2254(e)(2). If Swann clears the§ 2254(e)(2) hurdle, an

evidentiary hearing would be permitted only if he has "allege[d] additional facts that, if true, would entitle him to relief" on his claim.

Cardwell, 152 F.3d at 338 (internal quotation marks omitted).

Swann requested an evidentiary hearing in connection with his

state habeas petition, in which he presented the jury-misconduct

claim and offered the Pye affidavit as evidentiary support. The Virginia Supreme Court, however, summarily dismissed the petition

without conducting a hearing and determined that the jury-misconduct

claim had "no merit." J.A. 773. Under these circumstances, we find

that § 2254(e)(2) does not prohibit an evidentiary hearing in federal

court on Swann's jury-misconduct claim because he diligently sought

to develop the factual basis of that claim in the Virginia Supreme

Court, but was denied the opportunity to do so. See id. at 337-38

(holding that § 2254(e)(2) did not prohibit an evidentiary hearing in

federal court on a claim brought by a federal habeas applicant whom

the Virginia Supreme Court denied an evidentiary hearing in state

habeas proceedings).

Because Swann has cleared the § 2254(e)(2) hurdle, we may proceed to the issue of whether the allegations set forth in the Pye affida-

 16
vit would, if true, entitle Swann to federal habeas relief on his jurymisconduct claim. See Cardwell, 152 F.3d at 338. We are satisfied

that Swann would not be so entitled to federal habeas relief on this

claim and thus deny his request for an evidentiary hearing.

C.

As mentioned earlier, § 2254 imposes limitations upon habeas

relief with respect to a federal claim adjudicated on the merits in state

court and subsequently presented to a federal court in a § 2254 application. In particular, federal habeas relief is prohibited on any claim

"adjudicated on the merits in State court proceedings," unless that

adjudication resulted in a decision that was: (1) "contrary to, or

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States;" or (2)

"based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C.A.

§ 2254(d)(1)-(2).

Exploring the meaning of the phrases "contrary to" and "unreasonable application of" as they appear in § 2254(d)(1), we have determined that § 2254(d)(1) authorizes federal habeas relief on a claim

presented by a § 2254 applicant who demonstrates that the state

court's rejection of that claim is in square conflict with directly controlling Supreme Court precedent. See Green, 143 F.3d at 870, 880.

In the absence of such a controlling precedent, the applicant must

demonstrate either that "the state court's resolution of a question of

pure law rests upon an objectively unreasonable derivation of legal

principles from the relevant supreme court precedents," or that the

state court's decision "rests upon an objectively unreasonable application of established principles to new facts." Id. at 870. The ultimate

§ 2254(d)(1) inquiry is whether "the state courts have decided the

question by interpreting or applying the relevant[Supreme Court]

precedent in a manner that reasonable jurists would all agree is unreasonable." Id.4

_________________________________________________________________

4 Swann challenges the constitutionality of the limitations upon federal

habeas relief imposed by § 2254(d)(1) and construed in Green. In particular, Swann asserts that those limitations violate both Article III and the

Suspension Clause of the United States Constitution. However, as we

recently noted in Williams v. Taylor, 163 F.3d 860, 865 n. 3 (4th Cir.

1998), these identical challenges were presented and rejected in Green.

See Green, 143 F.3d at 874-76.

 17
We have established that the Virginia Supreme Court's summary

dismissal of a state habeas petition constitutes a § 2254(d) "adjudicat-

[ion] on the merits" with respect to those claims specifically designated in the dismissal order as having "no merit." See Cardwell, 152

F.3d at 339 (concluding from review of summary order that applicant's claim "was adjudicated `on the merits' and not disposed of on

procedural grounds."); see also Wright, 151 F.3d at 156-57 (4th Cir.

1998) (holding that summary dismissal "was clearly an adjudication

in which some claims were rejected pursuant to procedural default,

while others were decided on the merits."). Accordingly, we apply the

strictures of § 2254(d) to Swann's jury-misconduct claim in light of

the Virginia Supreme Court's express determination that the claim

has "no merit." See Cardwell, 152 F.3d at 339-40. We may not grant

federal habeas relief on the claim, therefore, unless Swann demonstrates that the Virginia Supreme Court's rejection thereof resulted

from interpreting or applying the relevant Supreme Court precedents

"in a manner that reasonable jurists would all agree is unreasonable."

Green, 143 F.3d at 870. Because the claim was rejected in summary

fashion, we conduct an "independent review of the applicable law" to

determine whether Swann has made the requisite demonstration.

Wright, 151 F.3d at 157.

Swann cites numerous Supreme Court precedents in support of his

position that his constitutional right to trial by an impartial jury was

violated as a consequence of jury misconduct. He fails to demonstrate, however, that any of these precedents are a directly controlling

Supreme Court precedent with which the Virginia Supreme Court's

rejection of the claim squarely conflicts. See Green, 143 F.3d at 870,

880. Moreover, he does not demonstrate that the Virginia Supreme

Court applied an established principle from a Supreme Court decision

to the facts of the present case in an objectively unreasonable manner.

See id. at 870. Rather, Swann asserts in conclusory fashion that "denying relief under these circumstances is contrary to and an unreasonable application of United States Supreme Court law." Brief of

Appellant at 31. Such an assertion is hardly sufficient to sustain his

burden of establishing that the Virginia Supreme Court decided the

question by interpreting or applying the relevant Supreme Court precedent "in a manner that reasonable jurists would all agree is unreasonable." Green, 143 F.3d at 870. Under these circumstances, we are

 18
satisfied that § 2254(d) prohibits federal habeas relief on Swann's

jury-misconduct claim.

D.

Even if Swann could surmount § 2254(d) and demonstrate that the

alleged jury misconduct gave rise to a constitutional violation, we

would still conclude that he is not entitled to federal habeas relief on

his claim. The Brecht harmless-error analysis applies to allegations of

jury misconduct presented in a federal habeas application when the

error involved is not structural in nature. See Sherman v. Smith 89

F.3d 1134, 1141-42 (4th Cir. 1996) (en banc). We believe that any

jury-related error in the present matter can "be quantitatively assessed

in the context of other evidence presented" to determine whether its

occurrence was harmless. Arizona v. Fulminante , 499 U.S. 279, 308

(1991). We thus explore whether the alleged acts of misconduct committed by the jurors in the course of the penalty deliberations in

Swann's trial "had a substantial or injurious effect or influence in

determining the jury's verdict." Brecht, 507 U.S. at 638 (internal quotation marks omitted).

As mentioned earlier, the jury's decision to fix Swann's punishment at death was predicated upon a finding of future dangerousness.

See Va. Code Ann. § 19.2-264.4.C. At trial, the Commonwealth supported that finding with evidence proving a pattern of violent attacks

committed by Swann. In particular, the jury learned that Swann

robbed individuals at a fast-food restaurant, struck an individual while

participating in burglary and grand larceny, hit a woman on the head

with a brick after breaking into her home, shot at a woman and hit her

on the head with a gun in the course of robbing her pocketbook, and

assaulted a police officer after being arrested. Perhaps most devastating to Swann was the underlying offense, in which Swann, in search

of cocaine money, entered Richter's house armed with a shotgun and

murdered him.

In light of the foregoing evidence, we are convinced that Swann's

allegations that the jurors discussed the information shared by Jurors

Williams and Davis, and also discussed Swann's parole eligibility,

did not contribute in any significant way to their ultimate finding of

a probability that Swann "would commit criminal acts of violence that

 19
would constitute a continuing serious threat to society." Va. Code

Ann. § 19.2-264.4.C. We conclude, therefore, that the acts of jury

misconduct alleged by Swann amount to harmless error under Brecht.

Swann thus would not be entitled to federal habeas relief and, accordingly, we deny his request for an evidentiary hearing on his jurymisconduct claim.

IV.

Swann contends that his right to effective assistance of counsel

under the Sixth and Fourteenth Amendments was violated as a result

of his trial counsel's failure: (1) to explore the prospective jurors'

prior jury service on voir dire, or (2) to object to evidence and argument offered by the Commonwealth that Terry Williams had been

sentenced to death. Swann presented this ineffectiveness claim in his

state habeas petition before the Virginia Supreme Court, which summarily rejected the claim as having "no merit." J.A. 773.

In light of the Virginia Supreme Court's express determination that

Swann's ineffectiveness claim lacks merit, our analysis is governed

by § 2254(d). See Cardwell, 152 F.3d at 339. Accordingly, we may

not grant federal habeas relief on the ineffectiveness claim unless

Swann demonstrates that the Virginia Supreme Court's rejection of

the claim resulted from interpreting or applying the relevant Supreme

Court precedents "in a manner that reasonable jurists would all agree

is unreasonable." Green, 143 F.3d at 870. Because the claim was

rejected in summary fashion, we must conduct an"independent

review of the applicable law" to determine whether Swann can make

the requisite demonstration. Wright, 151 F.3d at 157.

To prevail on his ineffectiveness claim, Swann must satisfy two

well-established requirements set forth by the Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). Swann must first

demonstrate that the performance of his counsel"fell below an objective standard of reasonableness." Id. at 688. If successful in that

regard, Swann must then demonstrate that counsel's deficient performance was prejudicial. See id. at 691-94. In articulating these requirements, the Court emphasized the following:

[A] court need not determine whether counsel's performance was deficient before examining the prejudice suf-

 20
fered by the defendant as a result of the alleged deficiencies.

. . . If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect

will often be so, that course should be followed .

Id. at 697 (emphasis added).

With respect to the prejudice prong, Strickland instructed that an

ineffectiveness claimant "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. However, the

Supreme Court has since clarified the prejudice inquiry in Lockhart

v. Fretwell, 506 U.S. 364 (1993), requiring an ineffectiveness claimant to demonstrate that the result of his trial was"fundamentally

unfair or unreliable," id. at 369; see Williams v. Taylor, 163 F.3d 860,

869 (4th Cir. 1998) ("[T]he standard for prejudice set forth in

Lockhart is not an exception to the Strickland standard, but rather a

clarification."); see also Sexton v. French , 163 F.3d 874, 882 (4th Cir.

1998) (explaining that Lockhart requires an ineffectiveness claimant

to demonstrate that his trial was "fundamentally unfair or unreliable"

in order to satisfy the Strickland prejudice prong).

We are satisfied that the Virginia Supreme Court could reasonably

conclude that Swann's ineffectiveness claim fails simply because he

cannot demonstrate that prejudice resulted from the allegedly deficient performance of counsel. Even if his counsel's performance fell

below an objective standard of reasonableness, there is virtually no

basis upon which to conclude that the result of either phase of the trial

was fundamentally unfair or unreliable. See Lockhart, 506 U.S. at

369. The jury's finding that Swann was guilty on the charges of capital murder and robbery was supported by extensive evidence, which

included a written confession. Similarly, there was overwhelming evidence to support the jury's finding of future dangerousness, upon

which Swann's death sentence was based.

Under these circumstances, we are satisfied that Swann did not

meet his burden of demonstrating that the Virginia Supreme Court's

rejection of his ineffectiveness claim resulted from applying

Strickland and Lockhart "in a manner that reasonable jurists would all

 21
agree is unreasonable." Green, 143 F.3d at 870. Federal habeas relief

on that claim is thus prohibited under § 2254(d).

V.

Swann presents two claims arising from the jury's viewing of the

crime scene during the guilt phase of the trial, when Swann was present but allegedly wearing leg shackles. First, Swann claims that he

was deprived of his right to a fair trial because several jurors noticed

the leg shackles at the viewing. Second, Swann claims that his trial

counsel was ineffective for failing to object to his wearing of the leg

shackles in the presence of the jury.

A.

In his state habeas petition, Swann supported his request for an evidentiary hearing on the above claims by offering the aforementioned

Pye affidavit, in which Pye affirms that at least four of the jurors

"stated that [Swann] was in leg shackles during the jury visit to the

crime scene." J.A. 499. The Commonwealth responded by offering

affidavits from Swann's trial counsel and a deputy sheriff of the Danville Sheriff's Department, both of whom stated that: (1) Swann was

not wearing leg shackles, and (2) measures were taken to ensure that

the jurors could not see the "sand-filled leg weights" that Swann wore

on his lower legs. J.A. 704-05, 710.

The Virginia Supreme Court, without conducting a hearing, denied

relief as to both claims. Swann argues on appeal that the conflicting

affidavits give rise to factual disputes that warrant an evidentiary

hearing. He argues further that if those disputes were resolved in his

favor, he would be entitled to relief on his claims. In opposition, the

Commonwealth maintains that Swann's right to an evidentiary hearing is barred under § 2254(e)(2) on the basis that Swann "failed to

develop the factual basis" of the claims in the state courts of Virginia.

We conclude that § 2254(e)(2) does not prohibit an evidentiary

hearing on Swann's "leg shackle" claims, because he diligently

sought to develop the factual basis of the claims in the Virginia

Supreme Court by requesting an evidentiary hearing in connection

 22
with his state habeas petition. See Cardwell, 152 F.3d at 337-38.

Because Swann has cleared the § 2254(e)(2) hurdle, we may proceed

to the issue of whether the allegations set forth in the Pye affidavit

would, if true, entitle Swann to federal habeas relief on either or both

of his "leg shackle" claims. See id. at 338.

1.

Swann's claim that he was deprived of his right to a fair trial

because several jurors noticed the shackles at the viewing was not

raised during trial or on direct appeal to the Virginia Supreme Court.

Rather, Swann initially presented the claim in his state habeas petition before the Virginia Supreme Court, which determined that consideration of the merits of the claim was barred under Slayton. The

Commonwealth argues that we may not reach the merits of the claim

as a consequence of procedural default in the state courts of Virginia.

We agree.

The Supreme Court has established that when a § 2254 applicant

defaults a claim in state court pursuant to an adequate and independent state procedural rule, federal habeas review of that claim is

barred unless the applicant demonstrates "cause for the default and

actual prejudice as a result of the alleged violation of federal law," or

demonstrates that refusal to consider the claim"will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,

750 (1991); see Harris v. Reed, 489 U.S. 255, 262 (1989). The

Slayton rule, which the Virginia Supreme Court consistently applies

to bar state habeas consideration of claims not raised on direct appeal,

constitutes an adequate and independent state-law ground for decision. See Wright, 151 F.3d at 159-60.

Because Swann defaulted his claim in state court pursuant to an

adequate and independent state procedural rule, we may not address

the merits of the claim unless he can demonstrate cause for the default

and prejudice resulting from the purported constitutional violation, or

unless he can demonstrate that our refusal to consider the claim will

result in a fundamental miscarriage of justice. See Coleman, 501 U.S.

at 750. Because Swann does not even attempt to make the requisite

showing, we conclude that federal habeas relief on this claim is

 23
barred. We thus deny his request for an evidentiary hearing on that

claim. See Cardwell, 152 F.3d at 338.

2.

The second claim is that Swann's trial counsel was ineffective for

failing to object to his wearing of the shackles in the presence of the

jury. The Virginia Supreme Court, on Swann's state habeas petition,

rejected this claim as having "no merit." J.A. 773. Again, we apply

the strictures of § 2254(d), see Cardwell , 152 F.3d at 339, requiring

Swann to demonstrate that the Virginia Supreme Court's rejection of

the claim resulted from applying the relevant Supreme Court precedents "in a manner that reasonable jurists would all agree is unreasonable," Green, 143 F.3d at 870. We conduct"an independent review

of the applicable law" in determining whether Swann can make the

requisite demonstration. Wright, 151 F.3d at 157.

In the present matter, Swann alleges that several jurors observed

him wearing leg shackles during the viewing of the crime scene. Even

if counsel's failure to object to the wearing of the leg shackles "fell

below an objective standard of reasonableness," Strickland, 466 U.S.

at 688, the Virginia Supreme Court could reasonably conclude that

Swann's ineffectiveness claim fails because of a lack of sufficient

prejudice. Given the extensive evidence of Swann's guilt and of his

future dangerousness, see Va. Code § 19.2-264.4.C, there is virtually

no basis upon which Swann can argue that the result of either phase

of the trial proceedings was fundamentally unfair or unreliable. See

Lockhart, 506 U.S. at 369.

Under these circumstances, we are satisfied that Swann cannot

meet his burden of demonstrating that the Virginia Supreme Court's

adjudication of Swann's ineffectiveness claim resulted from applying

either Strickland or Lockhart in an unreasonable manner. See Green,

143 F.3d at 870. Because federal habeas relief is thus prohibited

under § 2254(d), we deny Swann's request for an evidentiary hearing

on the ineffectiveness claim. See Cardwell, 152 F.3d at 338.

VI.

Swann asserts in two separate claims that his execution would violate the Eighth and Fourteenth Amendments in light of his current

 24
mental condition. He relies primarily upon Ford v. Wainwright, 477

U.S. 399 (1986), in which the Supreme Court held that a state is constitutionally prohibited "from inflicting the penalty of death upon a

prisoner who is insane," id. at 410 (emphasis added). Swann alleges

in his first such Ford claim that he is"not competent to be executed"

and thus his execution would be unconstitutional. J.A. 968. In a second Ford claim, Swann alleges that he is"severely mentally ill," J.A.

971, and contends that the rationale for Ford 's prohibition against the

execution of a prisoner who is insane applies with equal force to the

execution of one who is severely mentally ill.

Swann did not challenge his competency to be executed at trial or

on direct appeal to the Virginia Supreme Court. In his state habeas

petition, however, he presented the claim that he is severely mentally

ill and thus not competent to be executed under Ford. The Virginia

Supreme Court, applying Slayton, determined that the claim was procedurally defaulted "to the extent the claim is based on [Swann's]

mental state at the time of trial." J.A. 772.

After the magistrate judge recommended that federal habeas relief

be denied on both Ford claims as a consequence of procedural default

in the state courts of Virginia, Swann objected on the ground that he

could not be required to raise those claims until his execution became

imminent. The district court, finding no authority supporting the proposition that a prisoner need not raise a Ford claim until execution

becomes imminent, overruled Swann's objection. On appeal, Swann

argues that the procedural-default rulings on his Ford claims no longer bear significance in light of Stewart v. Martinez-Villareal, 118

S. Ct. 1618 (1998), which the Supreme Court decided after the district

court entered judgment denying the present application.

In Martinez-Villareal, a state prisoner brought a § 2254 application

presenting various claims, including a Ford claim challenging his

competency to be executed. The district court dismissed the Ford

claim without prejudice as premature, and the remaining claims presented in the application were ultimately denied. After the State

obtained an execution warrant and Martinez-Villareal was determined

in state court to be competent to be executed, Martinez-Villareal

moved to reopen the Ford claim presented in his earlier § 2254 application. The district court, however, denied Martinez-Villareal's

 25
motion to reopen under 28 U.S.C. § 2244(b)(1) (West Supp. 1998),

a gatekeeping provision of the AEDPA directing that"[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." The Court of Appeals for the Ninth Circuit, on MartinezVillareal's motion for leave to file a second or successive § 2254

application, held that § 2244(b) did not apply to Martinez-Villareal's

Ford claim. See Martinez-Villareal v. Stewart, 118 F.3d 628, 629 (9th

Cir. 1997) (per curiam).

The Supreme Court affirmed the Ninth Circuit's determination that

Martinez-Villareal's motion to reopen the Ford claim presented in his

earlier § 2254 application was not subject to the § 2244(b) restriction

on "second or successive" applications. Martinez-Villareal, 118 S. Ct.

at 1619. In so ruling, the Court analogized the situation of MartinezVillareal, whose Ford claim was dismissed without prejudice as premature, to the situation of a state prisoner whose§ 2254 application

was dismissed without prejudice for failure to exhaust state remedies:

True, the cases are not identical; [Martinez-Villareal's] Ford

claim was dismissed as premature, not because he had not

exhausted state remedies, but because his execution was not

imminent and therefore his competency to be executed

could not be determined at that time. But in both situations,

the habeas petitioner does not receive an adjudication of his

claim. To hold otherwise would mean that a dismissal of a

first habeas petition for technical procedural reasons would

bar the prisoner from ever obtaining federal habeas review.

Martinez-Villareal, 118 S. Ct. at 1622.

The Court's ultimate determination on the applicability of

§ 2244(b) to Martinez-Villareal's Ford claim was guided by two

propositions. First, a Ford claim does not ripen for resolution until

execution is imminent because an individual's competency to be executed cannot properly be assessed until that time. See MartinezVillareal, 118 S. Ct. at 1622 ("[Martinez-Villareal] brought his [Ford]

claim in a timely fashion, and it has not been ripe for resolution until

now."). Second, a federal habeas applicant is entitled to an adjudica-

 26
tion on the merits in federal district court as to each claim presented

in an initial § 2254 application, in spite of § 2244(b):

This may have been the second time that [MartinezVillareal] had asked the federal courts to provide relief on

his Ford claim, but this does not mean that there were two

separate applications, the second of which was necessarily

subject to § 2244(b). There was only one application for

habeas relief, and the District Court ruled (or should have

ruled) on each claim at the time it became ripe.[MartinezVillareal] was entitled to an adjudication of all of the claims

presented in his earlier, undoubtedly reviewable, application

for federal habeas relief.

Id. at 1621. Combining these propositions, the Court concluded that

§ 2244(b) does not bar the reopening of a Ford claim presented in an

initial § 2254 application and dismissed without prejudice as premature. Had the Court held to the contrary, even a Ford claim presented

in an initial § 2254 application would be rejected under § 2244(b) as

a "second or successive habeas corpus application" because the Court

anticipated that any Ford claim would ripen and be adjudicated only

after the disposition of the application in which it was presented.

Although Martinez-Villareal does not expressly mandate that a

Ford claim presented in an initial § 2254 application by a capital prisoner whose execution is not imminent be dismissed without prejudice

as premature and then revisited once execution becomes imminent,

the Court unquestionably endorsed such an approach in its disposition. We shall, therefore, use that approach in our disposition of the

present matter by remanding with instructions to dismiss Swann's

Ford claims without prejudice, thereby allowing him to reopen those

claims after his execution becomes imminent and he has exhausted

any available remedies in the state courts of Virginia.

We understand that the consequence of our disposition will be to

afford Swann the opportunity to renew a portion of his habeas application. This is, however, precisely the scenario contemplated by the

 27
Supreme Court in Martinez-Villareal, notwithstanding § 2244(b)'s

explicit restrictions against "second or successive" § 2254 applications.5

We emphasize that our decision to direct the dismissal without

prejudice of Swann's Ford claims is derived from our interpretation

of Martinez-Villareal regarding the proper disposition of a Ford claim

presented in an initial § 2254 application. The Supreme Court

expressly declined to decide whether a § 2254 application presenting

a Ford claim is "second or successive" within the meaning of

§ 2244(b) when the applicant in question failed to present that claim

in a previously adjudicated § 2254 application. See MartinezVillareal, 118 S. Ct. at 1622 n. * ("This case does not present the situation where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner's

initial habeas application. Therefore, we have no occasion to decide

whether such filing would be a `second or successive habeas corpus

application' within the meaning of AEDPA."). Likewise, we reserve

that issue for another day.

VII.

For the foregoing reasons, the judgment of the district court denying Swann's § 2254 application for a writ of habeas corpus is

affirmed in all respects, except as it relates to his claims that he is not

competent to be executed. We remand with instructions that Swann's

competency to be executed claims be dismissed without prejudice as

premature, and that he be permitted to renew those claims in a subsequent federal habeas proceeding if his execution becomes imminent

and he has exhausted any available remedies in the state courts of Virginia.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

_________________________________________________________________

5 Indeed, Justice Scalia's dissent in Martinez-Villareal criticizes the

majority for "reshaping" the AEDPA's requirement of "extraordinary

showings before a state prisoner can take a second trip around the

extended district-court-to-Supreme-Court federal track." 118 S. Ct. at

1162 (Scalia, J., dissenting) (emphasis added).

 28