PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH L. WILSON,

Petitioner-Appellant,

v.

No. 98-2

FRED W. GREENE, Warden,

Mecklenburg Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-96-1133-AM)

Argued: June 2, 1998

Decided: August 27, 1998

Before WILKINSON, Chief Judge, and NIEMEYER and

MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Niemeyer joined. Judge Michael wrote an

opinion concurring in part and concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Charles William Gittins, LAW OFFICES OF CHARLES

W. GITTINS, Alexandria, Virginia, for Appellant. Robert Quentin

Harris, Assistant Attorney General, OFFICE OF THE ATTORNEY

GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Michele
J. Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE

CENTER, Richmond, Virginia; Mark E. Olive, Tallahassee, Florida,

for Appellant. Mark L. Earley, Attorney General of Virginia, OFFICE

OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Kenneth L. Wilson raises various claims regarding his mental

capacity at the time of Jacqueline Stephens' murder. Wilson was sentenced to death for that offense. He appeals the district court's dismissal of his amended petition for a writ of habeas corpus. We affirm

the district court's judgment.

I.

On March 27, 1993, Jacqueline Stephens was found naked, bound

in a spread-eagle fashion to her bed, with multiple stab wounds in her

chest, neck, cheek, eyebrow, and arm. The events that led to this tragedy began at approximately 3:00 a.m. that morning when Wilson

entered Stephens' home in Newport News, Virginia. At knifepoint, he

forced Stephens, her twelve year-old daughter Altomika, and fourteen

year-old Takeshia Banks upstairs. Wilson ordered Altomika and

Takeshia into a bedroom and took Jacqueline into her own bedroom.

While Wilson and Jacqueline were in her bedroom, Altomika heard

her mother say "Kenny, why you doing this to me? I go with Pinkey

[Altomika's father], why you doing this to me?" Approximately

twenty-five minutes later, Wilson and Jacqueline returned to the bedroom where the girls were. At Wilson's request, Jacqueline told the

girls not to say anything; she then took a shower. While Jacqueline

was showering, Wilson ordered Takeshia to disrobe, tied both girls to

a bed, and blindfolded them. Wilson, while naked, proceeded to stab

both girls, cutting them in the neck.

After Takeshia screamed, Jacqueline confronted Wilson in the hallway. A struggle between Wilson and Jacqueline then ensued, and

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Altomika thought she heard her mother fall down the stairs. Altomika

and Takeshia escaped their bindings and barricaded the bedroom

door, but Wilson soon returned and threatened to kill Jacqueline if the

girls did not open it. The girls complied, and Wilson secured their

bindings and blindfolded them again. He then left the room briefly but

soon returned and taunted the blindfolded girls with the knife. Wilson

left again, yelling at Jacqueline to find her car keys. Altomika heard

her mother begin to scream then suddenly stop screaming. Wilson

returned once more, threatened to kill the girls, then withdrew. A

neighbor saw Wilson depart in Jacqueline's vehicle at approximately

6:30 a.m. Shortly thereafter, the police found Jacqueline's naked body

covered with blood and tied to her bed. Pubic hairs and a dried white

substance which appeared to be semen were observed on her body.

A few hours later, police found Wilson in a trash dumpster, acting

"peculiar." Blood tests taken at a hospital the next day revealed

cocaine and opiates in his system. He also was experiencing rhabdomyolysis, a condition involving the breakdown of muscle tissue produced by severe intoxication with certain drugs, including cocaine.

Wilson was charged with murder during the commission of

attempted rape, attempted rape, grand larceny, and several counts of

abduction and malicious wounding. Wilson's original trial counsel

requested a psychological evaluation to determine both Wilson's

competency to stand trial and his sanity at the time of the offense. On

May 10, 1993, Dr. Don Killian, a court-appointed clinical psychologist, reported that Wilson was competent to stand trial. In a separate

report, with the heading "for defense attorney only," Dr. Killian also

reported that Wilson was sane at the time of the offense. In late October, Wilson's new trial counsel filed a "Motion for Neurological, Psychological, Psychiatric and Physical Evaluation of the Defendant."

The trial court granted the motion on October 27 and appointed Dr.

Killian to conduct the evaluation. Dr. Killian again met with Wilson

on November 5, but this time Wilson declined to discuss "his

thoughts, feelings, or actions" around the time when the crime

occurred and stated that his attorneys had advised him not to "discuss

the details of these activities with anyone." At a November 15 hearing, Wilson confirmed that he did not want to speak to Dr. Killian.

After the trial, at which Wilson testified, a jury convicted him on

all counts. Following the sentencing phase, the jury recommended a

 3
death sentence based on findings of future dangerousness and vileness, and the trial court later sentenced him to death. On appeal, the

Virginia Supreme Court upheld the conviction and sentence. Wilson

v. Commonwealth, 452 S.E.2d 669 (Va. 1995). The conviction

became final on October 2, 1995, when the United States Supreme

Court denied certiorari. Wilson v. Virginia, 516 U.S. 841 (1995). The

Virginia Supreme Court later denied Wilson's petition for a writ of

habeas corpus. After the district court subsequently denied his federal

petition, Wilson brought this appeal. Since Wilson filed his federal

petition in 1997, it is governed by the noncapital provisions of the

Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh

v. Murphy, 117 S. Ct. 2059 (1997); Green v. French, No. 97-25, 1998

WL 237506, at *2 (4th Cir. May 13, 1998).

II.

Wilson alleges several trial errors relating to his mental health. He

attributes these errors to two parties: his court-appointed mental

health expert and his trial counsel. Wilson claims that Dr. Killian performed an inadequate evaluation of his sanity at the time of the

offense. He also blames trial counsel for not developing evidence of

his insanity and for not requesting a confidential mental health evaluation before trial. In support of these claims, Wilson relies primarily

on the report of Dr. Brad Fisher, a clinical forensic psychologist

appointed by the district court to assist with the preparation of Wilson's federal habeas petition. Dr. Fisher met with Wilson, examined

Wilson's medical and family history, and reviewed portions of the

transcript from Wilson's trial. Dr. Fisher found"the evidence is suggestive but not conclusive about the existence of a temporary condition that might have led to a plea of insanity." However, he concluded

there was "little evidence of a permanent major thought disorder, psychosis, or major organic impairment."1 

_________________________________________________________________

1 The parties engage in a protracted fight over whether these claims are

procedurally defaulted. The Commonwealth charges that Wilson failed

to raise any of these complaints until his federal habeas petition. Wilson

retorts that he has several grounds establishing cause and prejudice to

excuse any default such as a lengthy delay in notifying state habeas

counsel of his appointment. Because we believe Wilson's claims to be

meritless in all events, we need not resolve this dispute.

 4
A.

We first consider Wilson's arguments relating to the evaluation

performed by Dr. Killian. In Ake v. Oklahoma, the Supreme Court

held that under some circumstances a state must assure an indigent

defendant "access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. 68, 83 (1985). Wilson aims his

attack solely on whether Dr. Killian conducted an"appropriate"

examination. He contends that, had Dr. Killian conducted one, he

would have uncovered the information discussed in Dr. Fisher's

report.

We disagree. The Constitution does not entitle a criminal defendant

to the effective assistance of an expert witness. To entertain such

claims would immerse federal judges in an endless battle of the

experts to determine whether a particular psychiatric examination was

appropriate. See Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir.

1990); Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir. 1990). Furthermore, it would undermine the finality of state criminal convictions,

which would constantly be subject to psychiatric reappraisal years

after the trial had ended. Harris, 949 F.2d at 1517-18; Silagy, 905

F.2d at 1013.

This circuit consistently has "rejected the notion that there is either

a procedural or constitutional rule of ineffective assistance of an

expert witness, rather than ineffective assistance of counsel." Pruett

v. Thompson, 996 F.2d 1560, 1573 n.12 (4th Cir. 1993); see also

Poyner v. Murray, 964 F.2d 1404, 1418 (4th Cir. 1992); Waye v.

Murray, 884 F.2d 765, 766-67 (4th Cir. 1989) (per curiam). For

example, the defendant in Waye claimed that his psychiatrist had not

performed adequately because he had failed to emphasize Waye's

diminished capacity in his trial testimony. We rejected this claim and

observed:

[i]t will nearly always be possible in cases involving the

basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect

from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness

 5
in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural

demands of a fair trial and the constitution require.

884 F.2d at 767.

Waye thus squarely forecloses Wilson's argument to the extent that

he grounds it in a right to effective assistance from Dr. Killian. Wilson's attempt to locate such a right in the Ake decision also fails.

Although Ake refers to an "appropriate" evaluation, we doubt that the

Due Process Clause prescribes a malpractice standard for a courtappointed psychiatrist's performance. Rather, the decision in Ake

reflects primarily a concern with ensuring a defendant access to a

psychiatrist or psychologist, not with guaranteeing a particular substantive result. See Parker v. Norris, 64 F.3d 1178, 1185 (8th Cir.

1995); Harris, 949 F.2d at 1516-17; Henderson v. Dugger, 925 F.2d

1309, 1316 & n.23 (11th Cir. 1991); Granviel v. Lynaugh, 881 F.2d

185, 192 (5th Cir. 1989). The defendant in Ake , unlike Wilson, did

not receive any evaluation of his sanity at the time of the offense. 470

U.S. at 72. The Court distinguished Ake's situation from two earlier

decisions where the defendants, like Wilson, had received such evaluations and, thus, were not deprived of due process. Id. at 85 (distinguishing United States ex rel. Smith v. Baldi , 344 U.S. 561 (1953),

and McGarty v. O'Brien, 188 F.2d 151 (1st Cir. 1951)). In this context, the precise holding in Ake was simply that the failure to provide

any evaluation did not comport with the Due Process Clause. See,

e.g., id. at 74 (describing holding as requiring a state to "provide

access to a psychiatrist's assistance") (emphasis added); id. at 83

(describing the Court's concern "that the indigent defendant have

access to a competent psychiatrist for the purpose we have discussed") (emphasis added); cf. Tuggle v. Netherland, 516 U.S. 10, 12

(1995) (per curiam) (describing holding in Ake as requiring the "assistance" of a psychiatrist).

The above comments serve to illuminate our differences with the

partial concurring opinion. That opinion would hold that the Due Process Clause guarantees Wilson the right to a thorough psychiatric

examination that meets "the minimum standard of care set by the clinical psychology profession." Post at 20 (Michael, J., concurring in

part and concurring in the judgment). Drawing from psychiatric texts,

 6
the partial concurrence insists that due process requires an exam that

includes "a careful analysis of Wilson's medical records, compilation

of an accurate social history (including any history of mental illness

or substance abuse), and a complete mental and physical examination

(employing whatever diagnostic tests were appropriate under the circumstances)." Post at 20, n.3.

We cannot accept this position. As an initial matter, it reads more

into the phrase "appropriate [psychiatric] examination" in Ake, 470

U.S. 68, 83 (1985), than that decision will bear. Significantly, there

is no mention in Ake of the critical language advanced by the partial

concurrence, namely the entitlement to some federally supervised

standard of psychiatric care.

Moreover, although the partial concurrence purports to distinguish

between "an appropriate examination from the psychiatrist" and a

"general right to effective assistance of a psychiatrist," post at 30, they

turn out to be one and the same. Indeed, the partial concurrence

acknowledges that the basic inquiry is a malpractice determination.

See post at 29 ("[T]he right to counsel deals with lawyer malpractice

while the right to a psychiatrist deals with psychiatrist malpractice.")

(emphasis omitted). It is easy to see where this position would lead.

"The ultimate result would be a never-ending battle of psychiatrists

appointed as experts for the sole purpose of discrediting a prior psychiatrist's diagnosis." Harris, 949 F.2d at 1517 (emphasis omitted)

(quoting Silagy, 905 F.2d at 1013). Indeed, the partial concurrence's

use of Dr. Fisher's report to pick at Dr. Killian's earlier conclusions

demonstrates the psychiatric quagmire in which the recognition of

this new constitutional claim would immerse us.

Finally, we are reluctant to permit the purely hypothetical horror

story advanced by the partial concurrence to establish a broad, freestanding constitutional claim to the effective assistance of a psychiatrist. The Due Process Clause does not require this further transfer of

function from its traditional state court locus to federal collateral

review. "A conclusion to the contrary would require . . . federal courts

to engage in a form of `psychiatric medical malpractice' review . . .

of state court judgments." Harris, 949 F.2d at 1517 (emphasis omitted) (quoting Silagy, 905 F.2d at 1013). It is clear that Wilson committed the acts which resulted in his capital conviction. The path lit

 7
by the partial concurring opinion refocuses the federal habeas inquiry

from actual to legal innocence to a much greater extent than we are

willing to do. See Calderon v. Thompson, 118 S. Ct. 1489, 1502-03

(1998) (distinguishing between claims of actual and legal innocence).

Even if Ake's use of the term "appropriate" suggests that an examination must satisfy some minimal level of professional competence,

Dr. Killian has clearly satisfied it here. In May 1993, he interviewed

Wilson for approximately ninety minutes to determine his competency to stand trial and his sanity at the time of the offense. At this

meeting, he explored Wilson's educational background, medical history, and criminal record. Dr. Killian also evaluated Wilson's cognitive processes and understanding of the legal proceedings against him.

Based on Wilson's criminal records and this interview, Dr. Killian

concluded that Wilson was competent to stand trial and was not suffering from a significant mental disease or defect at the time of the

offense. In November 1993, Dr. Killian again met with Wilson and

discussed his general psychiatric condition, background, and current

status. Though Dr. Fisher reviewed more records than Dr. Killian and

explored Wilson's mental state in greater detail, his deeper exploration into Wilson's past does not demonstrate that Dr. Killian's examination was inappropriate.

Finally, Wilson himself appears to have been partly responsible for

the difficulties that Dr. Killian encountered in conducting a more

complete examination. During the November 1993 meeting, according to Dr. Killian, Wilson refused to discuss "any of his thoughts,

feelings, or actions during the time frame which contained the events

which ultimately led to charges against him." At a hearing shortly

before trial, Wilson again made clear to the court that he did not

desire an evaluation. During the hearing, the following colloquy took

place between Wilson and the judge:

THE COURT: Do you desire the psychiatric or psychological evaluation which you originally indicated to your lawyers that you did desire? Are you giving that up now?

THE DEFENDANT: Yes, sir.

Following this exchange, in an abundance of caution the trial court

declared a brief recess so that Wilson could consult with his attorneys

 8
about this choice. After that conference, Wilson reaffirmed his desire

not to speak with Dr. Killian:

THE COURT: All right, Mr. Wilson. What is your pleasure

with respect to the psychiatric or psychological evaluation?

THE DEFENDANT: I do not want to speak to him.

THE COURT: You do not want to speak to Doctor Killian,

correct?

THE DEFENDANT: Correct.

Dr. Killian can hardly be faulted for not conducting a more thorough

evaluation when Wilson repeatedly, and after consultation with his

lawyers, declined to discuss matters further with him. Thus even if

Ake provided some standard for an appropriate evaluation, Dr. Killian's evaluation of Wilson satisfied it.

B.

Wilson also attributes the failure to develop a more complete mental health defense to his trial counsel. Wilson alleges two basic errors

constituting ineffective assistance. First, he claims that trial counsel

inadequately investigated possible defenses that Wilson was insane or

lacked the requisite mens rea to commit the crimes. Second, he argues

that trial counsel's October 1993 request for a mental health evaluation was delinquent and deprived him of the benefit of a confidential

report. Like the district court, we find both of these claims to be

meritless.

To prevail on his claims of ineffective assistance, Wilson must satisfy two well-established requirements. First, he"must show that

counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984); see

also Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir.), cert. denied, 118

S. Ct. 595 (1997). Our review of counsel's performance in this regard

is highly deferential. Strickland, 466 U.S. at 689; Truesdale v. Moore,

142 F.3d 749 (4th Cir. 1998). Second, Wilson also must demonstrate

 9
"a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different." Strickland,

466 U.S. at 694; see also Satcher, 126 F.3d at 572. Unless Wilson satisfies both requirements, his ineffective assistance claims must fail.

Wilson's trial counsel was not ineffective in declining to investigate his mental health defenses or to develop them at trial. The decision not to pursue this line of defense more fully was a reasonable

one. In May, counsel had received Dr. Killian's report concluding that

Wilson was not mentally ill at the time of the offense. To be reasonably effective, counsel was not required to second-guess the contents

of this report. See Pruett, 996 F.2d at 1574; Poyner, 964 F.2d at 1419;

Washington v. Murray, 952 F.2d 1472, 1482 (4th Cir. 1991). Having

received Dr. Killian's report, counsel understandably decided "not to

spend valuable time pursuing what appeared to be an unfruitful line

of investigation." Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir.

1991). Indeed, Wilson told counsel that someone from a neighborhood crack house had committed the murder, and counsel made every

effort to locate and interview any witness that might have assisted

with such a defense. Counsel thus made a diligent effort to pursue

promising lines of investigation, and Wilson's present attempt to challenge his counsel's decision not to investigate mental health issues

more fully is "a product of hindsight and fails to address the facts reasonably relied upon by counsel at the time." Roach v. Martin, 757

F.2d 1463, 1478 (4th Cir. 1985) (citation omitted). 2

Counsel also reasonably chose not to develop a mental health

defense at trial. Decisions about what types of evidence to introduce

"are ones of trial strategy, and attorneys have great latitude on where

_________________________________________________________________

2 For similar reasons, we reject Wilson's argument that counsel was

ineffective for not requesting a psychiatric evaluation until the end of

October 1993. Since Dr. Killian already had concluded that Wilson was

sane at the time of the offense, counsel's decision not to seek another

evaluation sooner was hardly unreasonable. Furthermore, upon giving

notice of an intent to present psychological evidence in mitigation, counsel would have been required to disclose the results of such an evaluation

-- regardless of when it was requested; thus, the timing of the request

could not affect the trial's outcome. See Va. Code Ann. § 19.2-

264.3:1.D-E.

 10
they can focus the jury's attention and what sort of mitigating evidence they can choose not to introduce." Pruett, 996 F.2d at 1571 n.9

(citation omitted); see also Bunch, 949 F.2d at 1364. Here, at Wilson's insistence, counsel presented a story at trial that Wilson had not

committed the crime, and Wilson testified to this effect. To present

simultaneously a defense that Wilson was insane or lacked the mens

rea to commit the crime would have undermined Wilson's requested

strategy and undercut his own credibility.

Furthermore, even if counsel's investigation or presentation had

been deficient in some regard, it was not prejudicial. Dr. Fisher's

report offers only limited support for Wilson's present theory that he

was insane at the time of the offense or lacked the requisite mens rea

to commit an intentional crime. Dr. Fisher concluded that "there is little evidence of a permanent major thought disorder, psychosis, or

major organic impairment." In this respect, his opinion tracks the May

1993 opinion of Dr. Killian, who found that Wilson"was not suffering from a significant mental disease or defect, psychosis, major

organic impairment" or other similar malady at the time of the

offense. Even where Dr. Fisher's opinions vary from Dr. Killian's, his

endorsement of Wilson's present theory is qualified at best. Though

Dr. Fisher believed that Wilson's abusive upbringing and his use of

intoxicants around the time of the offense may have contributed to a

temporary psychosis, he found such evidence to be merely "suggestive but not conclusive." In light of Dr. Fisher's partial agreement

with Dr. Killian and his inconclusive judgment about whether Wilson

was temporarily insane, counsel's failure to introduce this evidence is

hardly "sufficient to undermine confidence in the outcome" of Wilson's trial. Strickland, 466 U.S. at 694; see Barnes v. Thompson, 58

F.3d 971, 980-81 (4th Cir. 1995); Poyner, 964 F.2d at 1420-21;

Washington, 952 F.2d at 1482.3

_________________________________________________________________

3 Wilson briefly argues that the district court erroneously denied him an

evidentiary hearing on his claims of ineffective assistance. Recently, this

circuit explained that "[e]videntiary hearings have never been required

on federal collateral review of state petitioners' ineffectiveness claims."

Eaton v. Angelone, 139 F.3d 990, 995 (4th Cir.) (citations omitted), cert.

denied, 118 S. Ct. 2338 (1998). Wilson has failed to show how an evidentiary hearing would have aided the factfinding process. Here the district court carefully considered several claims of ineffective assistance

 11
III.

Wilson next presses two claims that he is actually innocent of the

crimes for which the jury convicted him. He maintains that Dr. Fisher's report demonstrates that his voluntary intoxication at the time of

the offense produced a temporary insanity. He also contends that the

report shows his level of intoxication was so severe that he lacked the

mens rea to commit an intentional crime. The district court found both

of these claims to be defaulted because Wilson failed to raise them

in state court. Wilson now asserts that he raises these claims simply

as "`gateway[s]' through which he may pass to argue the merits of his

defaulted claims." Satcher, 126 F.3d at 570.

Claims of actual innocence, whether presented as freestanding

ones, see Herrera v. Collins, 506 U.S. 390, 417 (1993), or merely as

gateways to excuse a procedural default, see Schlup v. Delo, 513 U.S.

298, 317 (1995), should not be granted casually. The Supreme Court

recently emphasized "the narrow scope" of this type of claim.

Calderon, 118 S. Ct. at 1503 (quoting Sawyer v. Whitley, 505 U.S.

333, 340 (1992)) (other citation omitted); see also Turner v. Jabe, 58

F.3d 924, 931-32 (4th Cir. 1995). The claim "must be based on reliable evidence not presented at trial." Calderon, 118 S. Ct. at 1503

(citing Schlup, 513 U.S. at 324). A reviewing court must evaluate the

new evidence alongside any other admissible evidence of the defendant's guilt, see Bousley v. United States, 118 S. Ct. 1604, 1611-12

(1998), and may grant relief only where "a constitutional violation has

probably resulted in the conviction of one who is actually innocent."

Murray v. Carrier, 477 U.S. 478, 496 (1986). Evaluated under this

"demanding" standard, see Calderon, 118 S. Ct. at 1503, Wilson's

claims of actual innocence must fail.

We cannot accept Wilson's claim that he is actually innocent

because his voluntary intoxication caused him to become temporarily

_________________________________________________________________

and found them meritless; its failure to hold an evidentiary hearing "in

no way indicates that the court slighted these claims." Id. In light of our

conclusion that an evidentiary hearing was unnecessary, we need not

decide whether AEDPA independently might bar a hearing on these

claims. See 28 U.S.C. § 2254(e).

 12
insane. Voluntary intoxication generally does not provide a defense

unless it induces a permanent insanity. See Little v. Commonwealth,

175 S.E. 767, 769 (Va. 1934); Downing v. Commonwealth, 496

S.E.2d 164, 166 (Va. Ct. App. 1998). Here Dr. Fisher found "little"

evidence that Wilson suffered from a "permanent" disorder and

merely found it possible that Wilson might have been suffering from

a "temporary condition" at the time he committed the offense. Even

had a juror been apprised of Dr. Fisher's report, he would have had

almost no reason to conclude that voluntary intoxication had produced a permanent insanity in Wilson.

Wilson's claim that he lacked the mens rea to commit an intentional crime is equally unavailing. Virginia does recognize that "when

a person voluntarily becomes so intoxicated that he is incapable of

deliberation or premeditation, he cannot commit a class of murder

that requires proof of a deliberate and premeditated killing." Wright

v. Commonwealth, 363 S.E.2d 711, 712 (Va. 1988) (citations omitted). Nonetheless, a reasonable juror aware of Dr. Fisher's assessments still could have found Wilson guilty beyond a reasonable

doubt. The jury heard Altomika and Takeshia testify how Wilson

demanded that they go upstairs, how he separated them from Jacqueline, how he threatened to kill Jacqueline if the girls did not open the

door after escaping their bindings, and how he ordered Jacqueline to

find her car keys. The jury also heard testimony that Wilson drove

away in Jacqueline's car. A reasonable juror surely could find this

course of conduct to be the product of a mind capable of deliberation

and premeditation. See Mathenia v. Delo, 99 F.3d 1476, 1481-82 (8th

Cir. 1996) (rejecting actual innocence claim that defendant was incapable of deliberation), cert. denied sub nom. Mathenia v. Bowersox,

117 S. Ct. 2518 (1997); Nave v. Delo, 62 F.3d 1024, 1033 (8th Cir.

1995) (same). Furthermore, the jury already was aware of Wilson's

intoxication. It heard a police officer, who found Wilson shortly after

the crime, testify that Wilson was acting peculiar and suggest that

Wilson might have been "high." It also heard Wilson testify that he

had been at a bar with his brother before the offense and had gone to

Jacqueline's home to smoke some Kooleys -- cigarettes laced with

cocaine. In light of the fact that the jury found Wilson guilty despite

its awareness of his intoxication, Wilson has failed to show that, even

with Dr. Fisher's report, it is more likely than not that no reasonable

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juror would have convicted him. See Nave, 62 F.3d at 1033. Thus,

Wilson's claims of actual innocence must fail.

IV.

Wilson next claims that there was insufficient evidence to convict

him of attempted rape. Since Wilson's indictment listed attempted

rape as the predicate offense to capital murder, Wilson uses this claim

indirectly to attack his death sentence as well. Finding ample evidence to support the conviction for attempted rape, both the Virginia

Supreme Court on direct appeal and the federal district court on collateral review rejected this claim.

Though claims of insufficient evidence are cognizable on collateral

review, a federal court's review of such claims is"sharply limited."

Wright v. West, 505 U.S. 277, 296 (1992) (plurality opinion); see also

Evans-Smith v. Taylor, 19 F.3d 899, 905 (4th Cir. 1994) ("The standard is obviously rigorous."). Federal review of the sufficiency of the

evidence to support a state conviction is not meant to consider anew

the jury's guilt determination or to replace the state's system of direct

appellate review. Wright, 505 U.S. at 292. Thus, a defendant is entitled to relief only if "no rational trier of fact could have found proof

of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.

307, 324 (1979) (footnote omitted); see also George v. Angelone, 100

F.3d 353, 357 (4th Cir. 1996), cert. denied, 117 S. Ct. 854 (1997).

The Jackson standard "must be applied with explicit reference to

the substantive elements of the criminal offense as defined by state

law." Jackson, 443 U.S. at 324 n.16. In Virginia, the elements of

attempted rape include a direct but ineffectual act toward its consummation and an intent to engage in sexual intercourse. E.g., Fortune v.

Commonwealth, 416 S.E.2d 25, 27 (Va. Ct. App. 1992); Chittum v.

Commonwealth, 174 S.E.2d 779, 781 (Va. 1970). In this case, Wilson

has failed to show that no rational trier of fact could find him guilty

of attempted rape.

Sufficient evidence supported the jury's conclusion that Wilson

took an overt act toward consummation of the rape. On direct appeal,

the Virginia Supreme Court found that Wilson's nudity, his isolating

Jacqueline Stephens from the young girls, his forcibly binding Jac-

 14
queline naked to her bed, and the presence of what appeared to be

pubic hairs and semen on Jacqueline's body satisfied the overt act

requirement. 452 S.E.2d at 674. Wilson challenges this finding on the

ground that the Commonwealth failed to introduce evidence establishing that the white substance observed on Jacqueline's body was in

fact semen and failed to prove that the pubic hairs recovered at the

scene belonged to him. We are unpersuaded. Wilson's argument

ignores the fact that a federal court reviewing the sufficiency of the

evidence on collateral attack must consider the evidence in the light

most favorable to the prosecution and must presume that the jury

resolved any conflicts over the historical facts in the Commonwealth's favor. Wright, 505 U.S. at 296; Jackson, 443 U.S. at 319. In

finding Wilson guilty of attempted rape, the jury clearly could infer

that the white substance actually was semen and that the pubic hairs

belonged to him.

Moreover, such physical evidence is not even necessary to show

that Wilson took a direct act toward raping Jacqueline. See Fortune,

416 S.E.2d at 28; Granberry v. Commonwealth, 36 S.E.2d 547, 548

(Va. 1946). In Fortune, for example, the court found sufficient evidence of an overt act when the defendant removed his pants, exposed

himself, forced the victim into a bedroom, and touched her breast during a struggle. 416 S.E.2d at 28. On this record, a jury could find that

Wilson, like the defendant in Fortune, removed his clothes, exposed

himself, forced Jacqueline into the bedroom and touched her at some

point during the encounter, thereby committing a direct but ineffectual act in furtherance of raping her.

Sufficient evidence likewise supported the jury's finding that Wilson had formed the requisite intent to rape. The Virginia Supreme

Court concluded that Wilson's actions along with Jacqueline's statement "Kenny, why you doing this to me? I go with Pinkey, why you

doing this to me?" supported a finding of intent to rape. 452 S.E.2d

at 674. Wilson essentially argues that this circumstantial evidence

does not support a finding of intent to rape but, instead, shows only

an intent to commit murder. We disagree. "In cases involving an

attempt to commit a crime, the fact finder is often allowed broad latitude in determining the specific intent of the actor." Fortune, 416

S.E.2d at 27 (citing Ridley v. Commonwealth, 252 S.E.2d 313, 314

(Va. 1979)). A defendant's intent to commit rape may be shown

 15
through circumstantial evidence, including the defendant's conduct

and statements. Fortune, 416 S.E.2d at 27; Green v. Commonwealth,

292 S.E.2d 605, 608-09 (Va. 1982); see also Epperly v. Booker, 997

F.2d 1, 6 (4th Cir. 1993); Inge v. Procunier, 758 F.2d 1010, 1013 (4th

Cir. 1985). In this case, in addition to the physical evidence, the jury

heard testimony that Wilson was naked, took Jacqueline into a bedroom, and ordered Takeshia Banks to disrobe. Such conduct and

statements are entirely "consistent with preparation for sexual intercourse" and "permitted the trier of fact to infer that [Wilson] was

attempting to rape [Jacqueline]." Fortune, 416 S.E.2d at 27-28; see

also Green, 292 S.E.2d at 608-09; Chittum , 174 S.E.2d at 781;

Ingram v. Commonwealth, 66 S.E.2d 846, 851 (Va. 1951); cf.

Tharrington v. Commonwealth, 346 S.E.2d 337, 339 (Va. Ct. App.

1986).

Wilson argues that, under Virginia law, when the state's proof of

intent is entirely circumstantial, it must exclude every reasonable

hypothesis of innocence. See Rogers v. Commonwealth, 410 S.E.2d

621, 627 (Va. 1991). But we have expressly declined to "adopt Virginia's stricter standard of review for sufficiency of the evidence" on

collateral attack and held that the state was not required to exclude

every reasonable hypothesis of innocence. Inge , 758 F.2d at 1014; see

also Jackson, 443 U.S. at 326 (noting that prosecution not "under an

affirmative duty to rule out every hypothesis except that of guilt

beyond a reasonable doubt"). Thus, Wilson has failed to show that no

rational trier of fact could have found proof that he was guilty of

attempted rape beyond a reasonable doubt, and the district court properly rejected this claim. See Hawkins v. Lynaugh , 844 F.2d 1132,

1136 (5th Cir. 1988) (sufficient evidence of attempted rape); cf.

Holdren v. Legursky, 16 F.3d 57, 62-63 (4th Cir. 1994) (sufficient

evidence of sexual assault).

V.

Lastly, Wilson argues that the trial court should have instructed the

jury about the actual effects of his life sentence. Specifically, he

maintains the jury should have known that he would not be eligible

for parole for twenty-five years. He claims that both the Eighth

Amendment's guarantee against cruel and unusual punishment and

 16
the Fourteenth Amendment's guarantee of due process entitled him to

such an instruction. We disagree.

We previously rejected this precise argument in Peterson v.

Murray. 904 F.2d 882 (4th Cir. 1990). Peterson held that a defendant

was not constitutionally entitled to inform the jury that he would have

been ineligible for parole for twenty years. Id. at 886-87. The plaintiff

in Peterson, like Wilson, pressed this argument under both the Cruel

and Unusual Punishment and Due Process Clauses. Peterson

extended our earlier holding in Turner v. Bass , 753 F.2d 342, 353-54

(4th Cir. 1985), rev'd on other grounds sub nom. Turner v. Murray,

476 U.S. 28 (1986), which had rejected a similar argument based

solely on the Due Process Clause.

Wilson attempts to evade the ruling in Peterson by arguing that the

legal landscape fundamentally changed after the Supreme Court's

decision in Simmons v. South Carolina, 512 U.S. 154 (1994). In

Simmons, the Supreme Court held that a capital defendant, as a matter

of due process, should be permitted to inform the jury that he is parole

ineligible if the state argues that he presents a future danger. See id.

at 171 (plurality opinion); id. at 178 (O'Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in the judgment); see also

O'Dell v. Netherland, 117 S. Ct. 1969, 1971 (1997). The plurality

opinion in Simmons repeatedly stressed the central importance of a

defendant's parole ineligibility to its holding. See, e.g., 512 U.S. at

163-64. And Justice O'Connor's concurring opinion, which was

joined by two other justices and "provid[ed] the dispositive votes necessary to sustain [the judgment]," O'Dell, 117 S. Ct. at 1974,

observed that the Constitution did not require an instruction for

parole-eligible defendants. See Simmons, 512 U.S. at 176 ("In a State

in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact.").

Simmons, thus, has not altered our decisions in Peterson and

Turner to the extent they held that the Constitution does not entitle

defendants to an instruction about when they would become eligible

for parole. Simmons did not address whether the Eighth Amendment

required an instruction on parole ineligibility, see 512 U.S. at 162 n.4,

so it can hardly be read to require such an instruction for paroleeligible defendants. With respect to the Due Process Clause, this cir-

 17
cuit has observed that Justice O'Connor's opinion, which expressly

confined the case to situations of parole ineligibility, should be read

as expressing its essential holding. See Arnold v. Evatt, 113 F.3d

1352, 1363 n.65 (4th Cir. 1997), cert. denied sub nom. Arnold v.

Moore, 118 S. Ct. 715 (1998); Townes v. Murray, 68 F.3d 840, 849

(4th Cir. 1995). In Arnold, consistent with this reading of Simmons,

we held that a defendant was not entitled to inform the jury about the

actual effects of a life sentence or death sentence since, like Wilson,

he was not parole ineligible. 113 F.3d at 1363. Other courts share our

reading of Simmons and hold that it does not entitle a defendant to an

instruction about when he would become eligible for parole. See, e.g.,

Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir. 1995); Allridge v.

Scott, 41 F.3d 213, 222 (5th Cir. 1994); Ingram v. Zant, 26 F.3d 1047,

1054 n.5 (11th Cir. 1994) (per curiam). In sum, neither the Eighth

Amendment nor the Due Process Clause requires the instruction on

parole eligibility sought by Wilson.

VI.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

MICHAEL, Circuit Judge, concurring in part and concurring in the

judgment:

I concur in the result the majority opinion reaches, and I join in its

reasoning, except for parts II and V. I disagree with the majority's

suggestion in part II.A. that the Due Process Clause does not provide

an indigent criminal defendant with the right to a court-appointed psychiatrist (or clinical psychologist) who does not commit malpractice

when examining the defendant. I also have an uneasy feeling that part

II.B., which holds that counsel was not ineffective for failing to

second-guess the conclusions of the defense psychologist, might be

misinterpreted to mean that counsel is not required to seek a second

opinion when a court-appointed psychologist conducts a wholly inadequate mental examination. Further, although I agree with the majority's conclusion in part V that the petitioner in this case had no due

process right to inform the sentencing jury when he would become

 18
eligible for parole, I cannot agree with the majority's characterization

of the precedents governing this issue. I therefore write separately to

express my views on the right to a psychiatrist, to emphasize that a

defense lawyer retains at least some responsibility for ensuring that

the psychiatrist does his job, to offer my interpretation of the cases

dealing with the parole eligibility issue, and to explain why I would

affirm the district court's denial of the petitioner's habeas claims.

I.

I have no quarrel with the majority's observation that "[t]he Constitution does not entitle a criminal defendant to the effective assistance

of a [court-appointed] expert [psychiatric] witness," ante at 5. That is

a correct statement of the law in this circuit. See Waye v. Murray, 884

F.2d 765, 766-67 (4th Cir. 1989); see also Pruett v. Thompson, 996

F.2d 1560, 1573 n.12 (4th Cir. 1993); Poyner v. Murray, 964 F.2d

1404, 1418-19 (4th Cir. 1992). However, the petitioner, Kenneth Wilson, does not say that he was entitled to "effective assistance" from

his court-appointed clinical psychologist, Dr. Don Killian. Wilson's

argument is more circumscribed. He does not claim that he can challenge every aspect of Dr. Killian's performance as"ineffective."

Rather, Wilson maintains only that Dr. Killian was required to provide him an "appropriate" examination. This rule, Wilson argues, is

compelled by Ake v. Oklahoma, 470 U.S. 68 (1985), which held that

an indigent defendant has a due process right to psychiatric assistance. See id. at 83 ("[T]he State must, at a minimum, assure the

defendant access to a competent psychiatrist who will conduct an

appropriate examination . . . ."). According to Wilson, Ake required

Dr. Killian to provide him with a sanity examination that met the

minimum standard of care for clinical psychologists. 1 Wilson also

_________________________________________________________________

1 None of our cases have dealt with a claim that a court-appointed psychiatrist (or clinical psychologist) committed malpractice in his examination of the defendant. Rather, we have addressed a claim that a

psychiatrist should have performed better on the witness stand, see Waye,

884 F.2d at 766, 767, a claim that defense counsel could have chosen a

better-qualified psychiatrist to examine the defendant, see Pruett, 996

F.2d at 1573 n.12, 1574 n.13, a claim that counsel should have shopped

for a psychiatrist who would give a different diagnosis, see Washington

v. Murray, 952 F.2d 1472, 1481 (4th Cir. 1991), and a claim that counsel

 19
claims that his evidence shows that Dr. Killian's examination failed

to meet that standard. I agree with both arguments. 2 However, I would

deny Wilson's claim for other reasons.

The majority expresses some doubt about (but does not squarely

reject) Wilson's claim that he was entitled to an appropriate examination, see ante at 5-6. The majority's doubt is based on the point that

Ake does not "guarantee[ ] a particular substantive result," ante at 6.

Of course, Ake does not require that a state provide an indigent defendant with a psychiatrist who will come to a favorable conclusion, cf.

Poyner, 964 F.2d at 1419, or look for evidence of specific psychiatric

afflictions, see Pruett, 996 F.2d at 1573, or make the "correct" diagnosis, see, e.g., Washington, 952 F.2d at 1482. But Wilson does not

claim that Dr. Killian should have provided more favorable results, or

looked for specific mental disorders, or rendered the "correct" conclusion regarding his (Wilson's) sanity. Wilson argues only that Ake

guaranteed him an examination that was not so flawed that it constituted malpractice. I agree with Wilson's reading of Ake. Due process

required Dr. Killian to give Wilson a thorough examination that met

the minimum standard of care set by the clinical psychology profession.3

_________________________________________________________________

should have employed a psychiatrist who was more adept at developing

imaginative theories of mitigation, see Poyner , 964 F.2d at 1418, 1419.

Thus, none of our cases control the narrow issue raised by Wilson,

whether an indigent defendant has a right to an appropriate examination

that meets the standard of care set by the psychiatric profession.

2 Further, even if Ake does not give an indigent defendant a right to an

"appropriate examination" that is independent of the right to effective

assistance of counsel, I would hold that the Constitution places a heightened responsibility on counsel to ensure that the defendant receives an

appropriate examination. See part II.A., below.

3 This would have included a careful analysis of Wilson's medical

records, compilation of an accurate social history (including any history

of mental illness or substance abuse), and a complete mental and physical examination (employing whatever diagnostic tests were appropriate

under the circumstances). See generally Comprehensive Textbook of

Psychiatry/IV 543-48, 836-37 (Harold I. Kaplan & Benjamin J. Sadock

eds., 4th ed. 1985).

 20
The majority appears to disagree. Ake's focus, the majority reminds

us, was on "ensuring a defendant access to a psychiatrist or psychologist." Ante at 6. This statement, while true, gets us nowhere. Of

course, Ake did not explicitly decide whether an indigent defendant

is entitled to a court-appointed psychiatrist whose psychiatric examination does not constitute malpractice. The case did not present that

question because the defendant there received no sanity examination

whatsoever. See Ake, 470 U.S. at 72-74. However, Ake's reasoning

suggests a broader rule, that a court-appointed psychiatrist cannot

commit malpractice when examining a defendant. As Ake explains,

the right to a court-appointed psychiatrist is a logical extension of the

right-to-counsel cases, which recognize that "meaningful access" to

justice under the Due Process Clause means providing all of the

"tools" necessary for an adequate defense. See id. at 76-77 (citing

Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California,

372 U.S. 353 (1963); Strickland v. Washington , 466 U.S. 668 (1984);

Evitts v. Lucey, 469 U.S. 387 (1985)). Ake 's reference to these cases,

which recognize that the right to counsel is really the right to effective

assistance of counsel, was no accident: the Ake Court meant for the

right to a psychiatrist to operate somewhat like the right to counsel.4

By explaining that a psychiatrist was a defense"tool," the Ake court

meant for that tool to be fully functional. Cf. Harris v. Vasquez, 949

F.2d 1497, 1530 (9th Cir. 1990) (as amended Aug. 21, 1991) (Noonan, J., dissenting) ("The emphasis on tools is an emphasis on function. A non-functioning tool is useless; so is a non-functioning

psychiatrist.") Thus, although Ake's"precise holding" gives an indigent defendant access to a psychiatrist, see ante at 6, Ake's reasoning

is not so confined. And none of the majority's citations to Ake suggest

otherwise.5

_________________________________________________________________

4 However, I believe that the Ake right cannot and should not function

exactly like the right to effective assistance of counsel. As I explain in

part II.A., below, I would recognize the existence of a narrow right to an

appropriate examination and require that all other challenges to the psychiatrist's performance as a member of the defense team be brought as

challenges to the adequacy of counsel's representation. Due process provides defendants with a right to an appropriate examination, see Ake, 470

U.S. at 83, but it provides no right to effective assistance of a psychiatrist

generally, see Waye, 884 F.2d at 767.

5 If the Ake Court had viewed the right to a psychiatrist as providing

mere access to a psychiatrist, I expect that more Justices would have

 21
We do not have to scrutinize Ake's reasoning closely to understand

why the due process right to a court-appointed psychiatrist necessarily

encompasses the right to an appropriate examination by that psychiatrist. Simple logic dictates that without the latter right the former is

meaningless. An example is helpful here. In the majority's view, a

state apparently would fulfill its duty under Ake by appointing a competent psychiatrist (with all the right credentials) to examine a defendant, even if the psychiatrist performs a wholly inadequate

examination. Let us say, for example, that a psychiatrist saw the

defendant for only five minutes, in which time the doctor's only "diagnostic tests" were to ask the defendant his name and ask him to

count to 100.6 This "examination," where the psychiatrist plainly did

not do his job, cannot be all that Ake guarantees. Such an examination

is essentially the same as no examination at all. It is a denial of access

to a psychiatrist, just as in Ake. See Harris, 949 F.2d at 1531 (Noonan, J., dissenting) ("Ineffective psychiatric aid is no aid at all.").

Unless Ake's guarantee of the assistance of psychiatrist is an empty

one, due process must require that a court-appointed psychiatrist provide an indigent defendant with an adequate mental examination. Cf.

Strickland, 466 U.S. at 685-86 (explaining why the right to counsel

is the right to effective assistance of counsel); Evitts, 469 U.S. at 394-

96 (same). Therefore, I would hold that a defendant has the right to

an "appropriate" mental examination, just as Ake said. See Starr v.

Lockhart, 23 F.3d 1280, 1289-90 (8th Cir. 1994) ("As Ake explains,

due process requires access to an expert who will conduct, not just

any, but an appropriate examination."); see, e.g., Ford v. Gaither, 953

F.2d 1296, 1298-99 (11th Cir. 1992) (holding that the state-appointed

psychiatrist's examination was inadequate under Ake when the psy-

_________________________________________________________________

joined the Chief Justice's concurring opinion in that case. See Ake, 470

U.S. at 87 (Burger, C.J., concurring in the judgment) (reading the majority opinion to address only the narrow question of whether a capital

defendant may be denied "any opportunity whatsoever" to consult with

a psychiatrist). However, no other Justice joined the Chief Justice's opinion.

6 This hypothetical may be extreme, but I can imagine many other situations in which a psychiatrist might perform a grossly inadequate examination. The doctor could botch the exam (since no one is perfect) or he

could be tired, be having a bad day, or simply be in a hurry to make some

appointment outside the office.

 22
chiatrist simply interviewed the defendant about the events on the day

of the crime); cf., e.g., Cowley v. Stricklin, 929 F.2d 640, 644-45

(11th Cir. 1991) (holding that the aid provided by the defense psychiatrist failed to satisfy Ake's mandate when the psychiatrist did not

examine the defendant).7

The majority does not squarely decide this issue, though. Instead,

it says that "[e]ven if Ake's use of the term `appropriate' suggests that

an examination must satisfy some minimal level of professional competence, Dr. Killian has clearly satisfied it here." Ante at 8; see also

ante at 6 (explaining why the examination supposedly met the standard of care). Therefore, the Ake question appears to be left for

another day.

I cannot agree with the majority that Dr. Killian performed an "appropriate" examination. This is fact-finding, and the record does not

support it. Dr. Killian's ninety-minute interview of Wilson (in which

Dr. Killian did not perform a single diagnostic test or consult any of

Wilson's medical records) and Dr. Killian's half-page "report" (which

_________________________________________________________________

7 The criminal justice system would not be put under strain if we were

to recognize a defendant's right to a psychiatrist who does his job. That

psychiatrists sometimes disagree with each other about diagnoses is no

reason to worry that the finality of convictions will be undermined, see

ante at 5. Implementing a malpractice standard would not allow a defendant to challenge his conviction just because some other psychiatrist disagrees with the court-appointed psychiatrist's diagnosis. Rather, the

petitioner would have to prove (with the assistance of a new psychiatrist)

that the court-appointed expert's examination totally failed to meet the

relevant standard of care. Of course, such claims would rarely succeed.

Just as with the claim of ineffective assistance of counsel, a defendant

will rarely be able to prove that his psychiatrist conducted an examination that was constitutionally deficient.

I also am not concerned that allowing a defendant to challenge his psychiatrist's performance will lead to "an endless battle of ... experts," ante

at 5. Since there is no right to the effective assistance of counsel on

habeas review, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987),

there surely would be no right under Ake to an appropriate examination

on habeas review. Also, the limitations on successive habeas petitions

will ensure that defendants do not try to raise this claim repeatedly with

a succession of experts.

 23
summarily concluded that Wilson was sane at the time of his offense)

did not "clearly" meet the standard of care. In fact, my reading of a

report by Dr. Brad Fisher, a clinical psychologist who examined Wilson in 1997, suggests that Dr. Killian's May 1993 examination of

Wilson fell short of the standard. Dr. Fisher's examination of Wilson

is a model of professional care, in sharp contrast to Dr. Killian's

examination. Dr. Fisher interviewed Wilson, performed a full battery

of tests on him, studied (among other things) Wilson's medical

records, and obtained a full social and medical history (for which he

consulted sources independent of Wilson). Further, Dr. Fisher

reviewed Dr. Killian's notes and report from the May 1993 examination. According to Dr. Fisher, "Dr. Killian drew his conclusions without conducting a complete or comprehensive investigation" of

Wilson's mental health history. Further, Dr. Fisher wrote, Dr. Killian

should have studied the "considerable available data" concerning Wilson's mental condition, including Wilson's medical records and history of substance abuse, "rather than basing opinions strictly on his

interview." "At a minimum," Dr. Fisher said, Dr. Killian should have

considered information regarding "the level of drugs in Mr. Wilson's

system" at the time of the offense. Although the Constitution did not

give Wilson the right to an ideal examination like the one provided

by Dr. Fisher, it required an examination and diagnosis that reflected

an accepted minimum of skill and care. Dr. Fisher's report suggests

that Dr. Killian's abbreviated interview of Wilson did not meet the

relevant standard of care because Dr. Killian failed follow the bare

minimum of procedures necessary for an adequate sanity examination. This was enough to create an issue of fact about whether Dr. Killian's May 1993 examination of Wilson constituted malpractice.8

_________________________________________________________________

8 If the majority is suggesting, ante at 8, that Dr. Killian conducted a

second mental examination of Wilson, I disagree. Dr. Killian did not perform a second examination of Wilson during their brief second meeting

in November 1993. In any event, whether Wilson had a second examination is irrelevant to his claim that Dr. Killian committed malpractice in

his first examination in May 1993. After the first examination Dr. Killian

concluded that Wilson was sane at the time of the offense. This examination was entirely unrelated to the second meeting between Dr. Killian

and Wilson, which was scheduled by Wilson's counsel in an attempt to

develop mitigation evidence for the sentencing phase of Wilson's trial.

 24
Despite my disagreement with the majority on the Ake issue, I

agree that Wilson's petition should be denied. I would hold that Wilson's Ake claim was procedurally defaulted. Wilson argues on appeal

that he is not barred from raising the Ake claim because his default

was excused. Even if this excuse was valid (it is not; see part II.B.),

I would not allow Wilson to raise it to negate the procedural default

of his Ake claim. Wilson waived this excuse by failing to mention it

in district court. There, Wilson did not respond to the Commonwealth's argument that he procedurally defaulted his Ake claim by

asserting that any default was excused. Rather, Wilson argued that he

had presented his Ake argument in state court.

Of course, we have the discretion to address issues not raised

below to prevent a miscarriage of justice. However, I am convinced

that no injustice would result from the refusal to address Wilson's Ake

claim. First, as the majority ably explains, Wilson failed to make out

a claim of actual innocence. See ante at 12-13. Thus, the failure to

address the claim would not result in the execution of an innocent

man. Second, as the majority correctly concludes, the violation of

Wilson's Ake right was harmless beyond a reasonable doubt. Even if

Dr. Killian had provided Wilson with an appropriate mental examination, there is no reason to believe that the doctor would have made

a different assessment of Wilson's sanity. See ante at 10-11. Third,

Wilson has not convinced me that he would have avoided a death sentence if Dr. Killian's first examination had been appropriate. Dr. Killian was charged with assessing Wilson's sanity in that examination,

not with finding mitigating evidence. An appropriate examination

might have unearthed some mitigating evidence, but Wilson has not

said what that might be or how it might have affected his sentence.

Therefore, I see no injustice in applying the normal waiver rule to bar

Wilson from claiming, for the first time on appeal, that his procedural

default was excused.

II.

As an alternative to his Ake claim, Wilson argues that his counsel

was constitutionally ineffective under Strickland v. Washington, 466

U.S. 668 (1984), for failing to (1) explore adequately an insanity

defense and (2) file a timely request for a second mental examination

(to develop mitigation evidence in anticipation of sentencing). The

 25
majority rejects Wilson's first claim, reasoning that "[t]o be reasonably effective, counsel was not required to second-guess" Dr. Killian's conclusion from the May 1993 examination that Wilson was

not insane at the time of the offense. Ante at 10. The majority rejects

Wilson's second claim on the ground that counsel's decision not to

seek a second examination sooner was not unreasonable because "Dr.

Killian already had concluded that Wilson was sane at the time of the

offense." Ante at 10 n.2. I disagree with both of the majority's conclusions. For the first claim, our main focus ought to be on the psychologist's examination, not on counsel's appraisal of it. Further, defense

counsel was ineffective in preparing Dr. Killian for the first examination and, possibly, for failing to obtain a second opinion. For Wilson's

second claim, defense counsel was ineffective for not filing a timely

request for a second examination. Still, both claims were procedurally

defaulted.

A.

While I would recognize a right to an appropriate mental examination under Ake, the majority has studiously avoided doing that here.

The majority seems to say that any Ake right can only be enforced

through a claim of ineffective assistance of counsel. The majority

goes on to hold that the failure of Wilson's trial counsel to secondguess Dr. Killian's sanity evaluation was not constitutionally ineffective. Ante at 9-10. I read the majority's holding to be based solely on

the facts of this case: since Dr. Killian's examination was appropriate,

see ante at 8, there was no reason for defense counsel to second-guess

the doctor's methods or his conclusion that Wilson was sane at the

time of the offense.9 Therefore, I do not read the majority opinion as

creating a general rule that defense counsel is never required to

second-guess the court-appointed psychiatrist's mental evaluation of

the defendant. Such a holding would, if there was no independent Ake

right to an appropriate examination, effectively insulate a psychiatrist's poor performance from review and leave an indigent defendant

with no recourse when he received an inappropriate mental examination. And that is not the law. Even if I am incorrect to assert (in part

I) that Ake grants indigent defendants an independent right to an

_________________________________________________________________

9 Of course, I disagree with the majority's finding that Dr. Killian's

examination was appropriate. See part I, above.

 26
appropriate mental examination, a defendant must be able to vindicate

his Ake right to an appropriate examination through a claim of ineffective assistance of counsel.

It is well established that substandard performance by a courtfunded psychiatrist (or clinical psychologist) can be the basis of a

claim of ineffective assistance of counsel if, by failing to ensure that

the psychiatrist performed adequately, counsel's performance fell outside of the broad range of conduct that constitutes reasonably effective assistance. See, e.g., United States v. Kauffman, 109 F.3d 186,

190-91 (3rd Cir. 1997); Kenley v. Armontrout, 937 F.2d 1298, 1303-

08 (8th Cir. 1991); Elledge v. Dugger, 823 F.2d 1439, 1445-47 (11th

Cir.), modified in part, 833 F.2d 250 (11th Cir. 1987) (withdrawing

unrelated portion of the opinion); see also Poyner v. Murray, 964

F.2d 1404, 1419 (4th Cir. 1992); Washington v. Murray, 952 F.2d at

1472, 1481 (4th Cir. 1991). A lawyer is expected to perform competently in all aspects of his representation of a criminal defendant,

including (if the case requires) the assertion of an insanity defense at

trial or the presentation of mitigation evidence at sentencing. An Akemandated psychiatrist is an important tool for effective advocacy in

both situations, so defense counsel is expected to use this tool with

appropriate skill. To do this defense counsel must, to some extent,

ensure that a court-funded psychiatrist does his job. This requires that

a defense lawyer learn something about how a psychiatrist can assist

him in defending a criminal defendant. Thus, the burden of ensuring

that a psychiatrist performs adequately for the defense team (as an

advisor, consultant, witness, etc.) falls on counsel, just as the burden

of ensuring that any other witness or member of the defense team performs adequately falls on counsel. Counsel is the expert on conducting a criminal defense, after all.

Lawyer oversight is unlikely to result in full effectuation of Ake's

mandate, however. Ake held that due process requires an indigent

defendant be provided with "access to a competent psychiatrist who

will [1] conduct an appropriate examination and [2] assist in evaluation, preparation and presentation of the defense." Ake v. Oklahoma,

470 U.S. 68, 83 (1985). But a lawyer usually can be expected to guarantee only the second half of this mandate. As a trained advocate a

criminal defense lawyer is expected to know how to defend an

accused in a competent manner, by (for example) planning an insanity

 27
defense, investigating the defendant's background for mitigating evidence, and adducing psychiatric testimony. So, a lawyer can be

expected to know when an expert's conclusions would be favorable

to the defense, to understand what strategies of mitigation might

impress a jury, and to ensure that the psychiatrist's testimony is presented in a compelling fashion. Still, even the most diligent and

informed defense lawyer will often be hard pressed to second-guess

the psychiatrist's methods and diagnosis in an examination of the

defendant's sanity. This is because the mental examination is a part

of the psychiatrist's job that is totally outside the lawyer's professional competence. A psychiatrist is uniquely qualified to perform a

psychiatric examination and render a diagnosis of the defendant's

mental condition. As a result, while defense counsel can be expected

to have the know-how to ensure that the court-appointed psychiatrist

"assist[s] in evaluation, preparation, and presentation of the defense,"

counsel rarely will be qualified to determine whether the psychiatrist

has "conduct[ed] an appropriate examination." Unless the psychiatrist's report or conclusions are obviously incoherent, inaccurate,

incomplete, or the like, a lawyer cannot and should not be expected

to second-guess the psychiatrist's methods and diagnosis. Cf., e.g.,

Washington, 952 F.2d at 1481-82 (explaining that, on the facts of that

case, defense counsel could not have been reasonably expected to

second-guess the psychiatrist's diagnosis).

The majority does not distinguish between the lawyer's role and

the psychiatrist's role, however. Rather, the majority would place the

full burden of spotting psychiatrist malpractice on defense counsel by

putting counsel in charge of ensuring that the Ake right is protected.

This is a questionable arrangement. The Ake right, derived from the

Due Process Clause, is separate from and independent of the Sixth

Amendment right to effective assistance of counsel. The former right

was first recognized in Ake; the latter right has been with us much

longer, since Gideon v. Wainwright, 372 U.S. 335, 345 (1963), and

has for years governed a lawyer's use of a psychiatrist as part of the

defense team, see, e.g., United States v. Edwards, 488 F.2d 1154,

1163-64 (5th Cir. 1974). Further, these two rights may apply in different circumstances. While I would recognize an independent Ake right

where (as here) the defendant's mental examination is performed by

a court-appointed psychiatrist, I am less certain (and I need not say)

whether there is an Ake right to an appropriate examination separate

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from the right to effective assistance of counsel when counsel uses a

hand-picked expert, paid for by the defense. Moreover, as I have

explained, these two rights create two different standards of conduct:

the right to counsel deals with lawyer malpractice while the right to

a psychiatrist deals with psychiatrist malpractice. Lawyers are not

trained as psychiatrists, and they cannot be expected to have the same

working knowledge of psychiatry as an expert in the field. A lawyer

cannot be expected to recognize a psychiatrist's malpractice in all

cases where another psychiatrist would. Thus, the standard for lawyer

malpractice in evaluating a court-appointed psychiatrist's examination

is necessarily lower than the standard for psychiatrist (or clinical psychologist) malpractice in conducting the examination. Therefore, it

would be a dilution of the Ake right to say that an indigent defendant

must receive a mental examination that does not constitute

psychiatrist malpractice -- but only if the examination was so inadequate that the failure to recognize the psychiatrist's malpractice constituted lawyer malpractice.

The majority apparently recognizes that, due to lack of medical and

technical expertise, defense counsel often will have difficulty finding

fault in a court-appointed psychiatrist's examination or in challenging

its conclusions. Cf. ante at 11 (citing Washington, 952 F.2d at 1482).

However, the majority seems content to leave the entire burden of

protecting the Ake right on counsel. If protection of the Ake right does

fall entirely on defense counsel, then counsel will be expected to do

better than I have just described in evaluating the court-appointed

psychiatrist's mental examination. In order to be effective, counsel

will have to do some homework and know much more than any layman about the symptoms and effect of various mental disorders.

Counsel also will have to study the psychiatrist's report carefully (and

ask follow-up questions if necessary) to make sure he understands its

conclusions and the doctor's reasons therefor (just as counsel would

if he were using the report to put on an insanity defense). Further,

counsel will have to request a second opinion when he has any reason

to believe that the psychiatrist bungled the job. Only such heightened

vigilance will allow counsel to ensure that the psychiatrist has conducted an appropriate mental examination of the defendant. In my

view such heightened vigilance is necessary for counsel to discharge

his duty to effectively represent his client.

 29
I would prefer a different route, however. I would not give defense

counsel the whole burden of ensuring that the psychiatrist's examination is appropriate. I would give this task, which only a psychiatrist

is properly qualified to do, to the psychiatrist. This would create a

division of labor that best effectuates both parts of Ake's mandate.

The psychiatrist, the expert on mental examinations, would be responsible for providing the "appropriate examination," Ake, 470 U.S. at

83, while the lawyer, the expert at defending the accused, would be

responsible for ensuring that the psychiatrist "assist[s] in the evaluation, preparation, and presentation of the defense," id. This rule also

squares with the rule I endorse in part I, that there is a constitutional

right to an appropriate examination from the psychiatrist but no general right to effective assistance of a psychiatrist. Further, this rule

best reconciles our cases, which say that counsel is responsible for

ensuring that the psychiatrist assists in the defense, see Poyner, 964

F.2d at 1418, but also imply that counsel cannot normally be expected

to second-guess a psychiatrist's diagnosis, cf. e.g., Washington, 952

F.2d at 1481-82. (Of course, in those infrequent cases where the psychiatrist's examination is so flawed that any competent defense lawyer should notice, both the lawyer and the psychiatrist would be

responsible.)

Since I would place the brunt of the burden of ensuring that a

court-appointed psychiatrist's examination was appropriate on the

psychiatrist (or clinical psychologist), not on counsel, I do not agree

that the central question before us here is whether counsel was reasonable to rely on Dr. Killian's report, see ante at 9-10. The key question we should ask is whether Dr. Killian's first examination was

appropriate. It was not, assuming that the facts alleged in Wilson's

petition are true. See part I, above.

Our inquiry does not end there, however. As I have said, in some

cases defense counsel's failure to recognize a court-appointed psychiatrist's obvious malpractice and request a second opinion can constitute ineffective assistance of counsel.10 Further, counsel can be

ineffective for causing the psychiatrist to perform an appropriate

examination, by (for example) failing to provide the psychiatrist with

_________________________________________________________________

10 This would, I believe, give rise to two independent constitutional violations: a violation of Ake and a violation of Gideon.

 30
access to all the materials necessary for an adequate examination.

Here, Wilson's petition suggests that trial counsel was ineffective for

both reasons. First, despite a court order to provide Dr. Killian with

all "available psychiatric, psychological, medical or social records,"

counsel did not provide Dr. Killian with access to any relevant

records. Counsel did not provide Dr. Killian with hospital records

which showed that, at the time of Wilson's arrest, he was suffering

from rhabdomyolysis, a condition produced by severe drug intoxication. Nor did counsel provide Dr. Killian with any documentation of

Wilson's history of substance abuse. These records were obviously

essential to a proper determination of Wilson's mental condition at

the time of the offense, and counsel was ineffective for failing to

obtain them for Dr. Killian. Second, I am not sure that it was reasonable for defense counsel to decide against an insanity defense (or at

least, to decide against consulting a second clinical psychologist)

based on Dr. Killian's report. Here, even a layman might have questioned the conclusions reached by Dr. Killian's short examination and

conclusory report.11

However, even if trial counsel was ineffective with regard to Wilson's May 1993 examination, Wilson's claim does not succeed. First,

Wilson did not argue in state court that trial counsel should have

obtained a second mental examination, and this procedural default

was not excused. See part II.B. Second, even if trial counsel was ineffective for failing to provide Dr. Killian with Wilson's medical

records, Wilson suffered no prejudice from that mistake. Wilson has

not proved that Dr. Killian would have testified that he was insane if

the doctor had performed an appropriate first examination. See ante

at 10-11.

_________________________________________________________________

11 I also cannot agree that counsel "reasonably chose not to develop a

mental health defense at trial" because that defense was inconsistent with

Wilson's testimony that he did not commit the crime, see ante at 10. We

should not speculate that if Dr. Killian had conducted an appropriate

examination, defense counsel would have decided not to put on an insanity defense.

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B.

The majority also rejects Wilson's claim that defense counsel's

failure to obtain a second mental examination constituted ineffective

assistance, reasoning that no second examination was needed because

Dr. Killian concluded that Wilson was sane. See ante at 10 n.2. I disagree. Even if counsel thought that Wilson was sane, counsel ought

to have requested mitigation evidence from a psychologist. Dr. Killian's May 1993 examination of Wilson dealt with just one potential

mitigating factor, Wilson's mental state. However, a second psychiatric evaluation could have unearthed other kinds of mitigating information about Wilson (such as his childhood exposure to physical

abuse) that had little to do with his sanity. (Here, defense counsel

admitted that a second examination by Dr. Killian might uncover mitigating factors that would be helpful at Wilson's sentencing.) Thus,

even if it was reasonable for counsel to decide, in reliance on Dr. Killian's report, not to obtain a further evaluation of Wilson's mental

state, see, e.g., Gilbert v. Moore, 134 F.3d 642, 654-55 (4th Cir.

1998), petition for cert. filed, No. 97-9198 (U.S. May 19, 1998), that

was no reason for counsel to forego a second psychiatric evaluation.

I would hold that counsel erred by waiting to move for a second

examination until two days after notifying the trial court that the

defense planned to use mental health evidence at trial. Counsel's

delay was error because under Virginia law the report from any second examination was discoverable by the prosecution as soon as the

defense notified the court of its intent to use mental health evidence.

See Va. Code Ann. § 19.2-264.3:1(D) (Michie 1995). The result of

counsel's failure to request and obtain a second examination before

notifying the court that the defense planned to use mental health evidence was that the defense team lost the opportunity to keep the

results of Wilson's proposed second examination confidential. Once

counsel realized this mistake and told Wilson that they would have to

choose between a non-confidential examination and no examination

at all, Wilson chose the latter option. Therefore, counsel's failure to

obtain a confidential examination forced Wilson to forego a second

examination and miss an opportunity to obtain psychiatric mitigation

evidence at sentencing. This was ineffective lawyering.

The majority concludes that counsel's failure to obtain a confidential second examination was harmless, however, because "counsel

 32
would have been required to disclose the results of such an examination" at trial anyway. Ante at 10 n.2. Again, I disagree. Wilson does

not claim that he was harmed directly by the prospect of the report's

disclosure. The harm from counsel's mistake, Wilson argues, was that

it placed him between a rock and a hard place. Not knowing whether

the examination would unearth helpful or harmful information for the

defense, Wilson had to decide whether to forego the examination or

take the chance that detrimental information would come out in the

examination and fall into the Commonwealth's hands. And, although

Wilson's decision to forego the second examination was voluntary,

Wilson never would have had to make this tough decision if counsel

had not put him in the unenviable situation of choosing a confidential

examination or no examination at all. As a result of counsel's mistake, Wilson never had the opportunity to obtain a confidential psychological examination and decide whether to use that evidence on its

own merit (based on an informed assessment of whether the benefit

of the report outweighed any harm of its disclosure). This hindered

Wilson's ability to develop mitigating evidence for sentencing.

Despite the merit of Wilson's ineffective assistance of counsel

claim, I would hold that it is procedurally barred. In his state habeas

petition, Wilson raised a substantive claim that he was denied a second examination, but he made no allegation that his problem arose

due to bad lawyering. And, Wilson fails to convince me that this

default is excused because the "state corrective processes" were either

absent or inadequate to vindicate his right, see 28 U.S.C.

§ 2254(b)(1)(B) (1994). First, Wilson is simply wrong to say that he

could not raise his claim in state habeas proceedings. In Virginia it is

possible to raise an effective assistance of counsel claim in a habeas

petition, even though the claim was not raised at trial or on appeal.

Cf. Walker v. Mitchell, 299 S.E.2d 698, 699-700 (Va. 1983). Second,

Wilson was not prejudiced when the state court did not notify habeas

counsel of his appointment until two months prior to the deadline for

filing the state petition. This mistake (which cut counsel's time to file

in half) is troubling, but it did not prejudice Wilson's ability to file

a state habeas petition. Indeed, Wilson's habeas counsel eventually

filed a substantial petition. And, even if counsel was ineffective for

filing to include all the points in the petition that Wilson wanted to

raise, this does not excuse Wilson's procedural default. See Mackall

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v. Angelone, 131 F.3d 441, 449 (4th Cir. 1997) (en banc), cert.

denied, 118 S. Ct. 907 (1998).

III.

Finally, I would also reject Wilson's claim that he should have

been allowed to inform the sentencing jury he was ineligible for

parole for 25 years. As the majority explains, Simmons v. South

Carolina, 512 U.S. 154 (1994), held that when the only alternative

sentence to death is life in prison without the possibility of parole

(and the state puts future dangerousness at issue), due process

requires that the defendant be allowed to inform the sentencing jury

that he is parole ineligible. See ante at 17 (citing Simmons, 512 U.S.

at 178 (O'Connor, J., concurring in the judgment)). I agree with the

majority's conclusion that Simmons does not control in Wilson's case

because the alternative sentence to death for Wilson was life in prison

with the possibility of parole after 25 years.12 As a result, the extension of Simmons to Wilson's case would be a new rule. Cf. O'Dell v.

Netherland, 117 S. Ct. 1969, 1971 (1997).

_________________________________________________________________

12 But cf. Brown v. Texas, 118 S. Ct. 355, 355 (1997) (Stevens, J.,

respecting the denial of certiorari, joined by Souter, Ginsburg and

Breyer, J.J.) (explaining that when the alternate sentence to death is life

without the possibility of parole for 35 years, a rule prohibiting a defendant from informing the sentence jury of his parole ineligibility is in "obvious tension" with Simmons); id. at 356 n.2 (suggesting that "the lifewithout-parole option considered in Simmons is different in degree, but

not in kind, from the sentencing options at issue here"); Simmons, 512

U.S. at 163 (Blackman, J., joined by Stevens, Souter and Ginsburg, J.J.)

("In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant."); id. at 184-85 (Scalia,

J., dissenting, joined by Thomas, J.) ("I see no more reason why the

United States Constitution should compel the admission of evidence

showing that . . . the defendant would be nonparolable, than that it should

compel the admission of evidence showing that . . ., though under current

law the defendant will be parolable in 20 years, the recidivism rate for

elderly prisoners released after long incarceration is negligible. All of

this evidence may be thought relevant to whether the death penalty

should be imposed . . . .").

 34
However, I hesitate to join the majority's discussion of Simmons.

The majority is wrong to say that our decisions, either pre- or postSimmons, govern the substantive question presented by Wilson.13

Were we squarely presented with the question whether to extend the

Simmons rule as Wilson argues, we would not be constrained from

doing so by our own precedents. Further, I disagree with the majority's dicta discussing of the scope of Simmons . See ante at 17 ("[T]he

Constitution does not entitle defendants to an instruction about when

they would become eligible for parole."). We do not address the full

scope of Simmons today, just the question before us. Thus, we do not

decide whether in some other case Simmons might compel a sentencing court to allow a capital defendant to inform the jury of the true

effect of an alternative sentence, even if that sentence has the possibility of parole. For example, if Wilson had established that his term of

25 years of parole ineligibility extended beyond his reasonable life

expectancy, so that the actual effect of the sentence would be that the

only alternative to death was life without any possibility of parole,

_________________________________________________________________

13 Peterson v. Murray, 904 F.2d 882 (4th Cir. 1990), held that the

Eighth Amendment was not violated when a court refused to allow the

defendant to inform the sentencing jury he was ineligible for parole for

20 years. See id. at 886-87. Peterson did not decide the due process claim

that Wilson makes. Turner v. Bass, 753 F.2d 342 (4th Cir. 1985), rev'd

on other grounds sub nom., Turner v. Murray , 476 U.S. 8 (1986), and

Townes v. Murray, 68 F.3d 840, 849 (4th Cir. 1995), cert. denied, 516

U.S. 1100 (1996), also did not address the question Wilson raises.

Rather, they dealt with the issue of whether (pre- and post-Simmons,

respectively) due process requires a sentencing court to instruct the jury,

sua sponte, that a defendant is ineligible for parole. See Turner, 753 F.2d

at 353-54; Townes, 68 F.3d at 849-50. Further, although the petitioner in

Arnold v. Evatt, 113 F.3d 1352 (4th Cir. 1997), cert. denied, 118 S. Ct.

715 (1998), made a claim similar to the one Wilson makes (that the jury

must be informed, at the defendant's request, of"the actual effect of a

life sentence or a death sentence," id. at 1363), that case did not explicitly decide the issue Wilson asks us to decide. The Arnold court said that,

on the record before it, the defendant had not showed that he was ineligible for parole. Id. Although the Arnold court did not say what the alternative sentence to death had been, we can assume that the petitioner there

failed to show that he was parole ineligible at any time after his conviction. Thus, Arnold is distinguishable from this case because Wilson was

parole ineligible for 25 years.

 35
that might have brought Wilson's case within the rule of Simmons.

Wilson has not made this argument, so I have no difficulty in rejecting his Simmons claim.

 36