UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK A. SHEPPARD,

Petitioner-Appellant,

v.

No. 98-12

JOHN TAYLOR, Warden, Sussex I

State Prison,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-97-60-3)

Argued: September 24, 1998

Decided: October 23, 1998

Before WILKINSON, Chief Judge, and WILKINS and

NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,

in which Chief Judge Wilkinson and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: Dana Johannes Finberg, MEZZULLO & MCCANDLISH, Richmond, Virginia, for Appellant. Donald Richard Curry,

Senior Assistant Attorney General, OFFICE OF THE ATTORNEY

GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Timothy

M. Kaine, MEZZULLO & MCCANDLISH, 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Unpublished opinions are not binding precedent in this circuit.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

WILKINS, Circuit Judge:

Appellant Mark A. Sheppard filed this petition for habeas corpus

relief1 from his Virginia capital convictions and death sentences for

the murders of Richard A. and Rebecca W. Rosenbluth. See 28

U.S.C.A. § 2254 (West 1994 & Supp. 1998). 2 The district court dismissed his petition, concluding that the majority of Sheppard's claims

were procedurally defaulted and that the remaining claims lacked

_________________________________________________________________

1 Sheppard named J. D. Netherland, Warden of the Mecklenburg Correctional Center where Sheppard was incarcerated, as Respondent. The

court has since substituted John Taylor, Warden of the Sussex I State

Prison, as Respondent. For ease of reference we refer to Taylor as "the

Commonwealth."

2 Because Sheppard's petition for a writ of habeas corpus was filed on

May 1, 1997, after the April 24, 1996 enactment of the Antiterrorism and

Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132,

110 Stat. 1214, amendments to 28 U.S.C.A. § 2254 effected by § 104 of

the AEDPA govern our resolution of this appeal. See Green v. French,

143 F.3d 865, 868 (4th Cir. 1998); see also Lindh v. Murphy, 117 S. Ct.

2059, 2067-68 (1997). We have not yet decided whether the provisions

contained in § 107 of the AEDPA apply to Virginia petitioners who filed

their state habeas proceedings after July 1, 1992. And, we need not consider the applicability of the provisions of § 107 of the AEDPA here

because we conclude that habeas relief is inappropriate under the more

lenient standards previously in effect. See Mackall v. Angelone, 131 F.3d

442, 444 n.2 (4th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 907

(1998).

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merit. We conclude that the district court correctly determined that

Sheppard is not entitled to habeas corpus relief.

I.

Sheppard murdered Mr. and Mrs. Rosenbluth on November 28,

1993 by shooting each of them in the head inside the couple's Chesterfield County, Virginia home. When law enforcement officers discovered the Rosenbluths' bodies two days later, their house had been

ransacked and many of the couple's personal belongings and their

automobiles were missing. Mr. Rosenbluth had been shot twice, one

shot entering his left eye and the other entering the right side of his

nose. Mrs. Rosenbluth had been shot four times from close range and

had sustained wounds in the head and neck. There was no evidence

of a struggle or of forced entry.

A wealth of evidence pointed to Sheppard's involvement in the

murders. Sheppard was arrested while attempting to set fire to

Mr. Rosenbluth's automobile in the early morning hours of December 3, 1993; Andre Graham was arrested for transporting Sheppard to

that location. At the time of Sheppard's arrest, he was in possession

of Mrs. Rosenbluth's watch and several of Mr. Rosenbluth's credit

cards, and a search of Sheppard's residence disclosed other items

belonging to the Rosenbluths. Sheppard's fingerprint was found in the

Rosenbluths' home. Mr. Rosenbluth's wounds and two of

Mrs. Rosenbluth's wounds were inflicted by a .38 caliber handgun

that was linked to Sheppard. Mrs. Rosenbluth's remaining wounds

were inflicted by a .45 caliber automatic weapon belonging to Graham and discovered at Graham's girlfriend's home. The day before

their arrest, Sheppard and Graham took the Rosenbluths' automobiles

to body shops to obtain estimates for having the vehicles painted.

And, Mrs. Rosenbluth's automobile was recovered near the home of

Graham's girlfriend.

The evidence presented at trial indicated that Sheppard and Graham were close friends and together engaged in selling cocaine.

Autopsies revealed that the Rosenbluths had ingested alcohol and

cocaine within hours of their deaths. Drug paraphernalia and trace

amounts of cocaine were present in the Rosenbluths' home when their

bodies were discovered. The victims' financial records indicated that

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they had been making significant withdrawals of cash and credit card

charges--totaling hundreds of dollars per day--in the months prior to

their death. During that same period, Mr. Rosenbluth had provided

hotel rooms for Graham in exchange for cocaine. The Commonwealth

theorized that Sheppard and Graham supplied the Rosenbluths with

cocaine and murdered the couple when their finances began to dwindle either because the Rosenbluths failed to satisfy a drug debt or

because Sheppard and Graham feared the couple would identify them

as their suppliers. The Commonwealth contended that Sheppard shot

Mr. Rosenbluth in the head twice while Graham shot Mrs. Rosenbluth

twice, then Sheppard shot Mrs. Rosenbluth two additional times,

inflicting the fatal wounds.

Sheppard was convicted of two counts of capital murder.3 During

sentencing, in addition to other evidence, the Commonwealth introduced evidence of prior unadjudicated criminal conduct by Sheppard.

The jury imposed two death sentences--one for each of the

Rosenbluths--finding that Sheppard represented a continuing serious

threat to society and that both of the murders were"vile" in that they

involved "aggravated battery" or "depravity of mind." Va. Code Ann.

§ 19.2-264.4(C) (Michie 1995). The Supreme Court of Virginia

affirmed Sheppard's convictions and death sentences. See Sheppard

v. Commonwealth, 464 S.E.2d 131, 141 (Va. 1995). The United States

Supreme Court denied Sheppard's petition for a writ of certiorari on

March 25, 1996. See Sheppard v. Virginia, 517 U.S. 1110 (1996).

Sheppard then sought and was denied postconviction relief from the

Supreme Court of Virginia.

Sheppard subsequently filed this petition for a writ of habeas corpus on May 1, 1997. The district court dismissed the petition and

denied Sheppard's timely motion to alter or amend the judgment. See

Fed. R. Civ. P. 59. On June 1, 1998, the district court granted Sheppard's application for a certificate of appealability.

_________________________________________________________________

3 Sheppard was also convicted of two counts of robbery and four counts

of using a firearm in the commission of those offenses. On the four firearm convictions, the jury fixed Sheppards punishment at three years

imprisonment for the first, and five years for each of the other three.

Sheppard was sentenced to 20 years on each of the robbery counts.

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II.

Absent cause and prejudice or a miscarriage of justice, a federal

habeas court may not review constitutional claims when a state court

declined to consider their merits on the basis of an adequate and independent state procedural rule. See Harris v. Reed, 489 U.S. 255, 262

(1989). Such a rule is adequate if it is regularly or consistently applied

by the state court, see Johnson v. Mississippi , 486 U.S. 578, 587

(1988), and is independent if it does not "depend[ ] on a federal constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

A.

Sheppard contends that the method of appellate review employed

by the Supreme Court of Virginia to review capital sentences is meaningless, resulting in the imposition of the death penalty in an arbitrary

and capricious manner in violation of the Eighth Amendment. In support of this claim, Sheppard first contends that the refusal of the

Supreme Court of Virginia to review his claims relating to the "future

dangerousness" predicate on the basis of a mere"technicality"--that

Sheppard had procedurally defaulted those claims--exemplifies the

"callous indifference [of the Supreme Court of Virginia] to its constitutional and statutory duty to conduct meaningful appellate review of

capital convictions." Opening Brief of Appellant at 31. In addition,

Sheppard asserts that the proportionality review conducted by the

Supreme Court of Virginia was inadequate.

Sheppard did not raise this claim on direct appeal. When Sheppard

first raised it in his state petition for habeas corpus relief, the Supreme

Court of Virginia held the claim to be procedurally defaulted under

Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding that

claims not properly raised on direct appeal will not be considered as

a basis for collateral relief). This court has repeatedly held that the

procedural rule set forth in Slayton is an adequate and independent

state law ground for decision. See, e.g., Mu'Min v. Pruett, 125 F.3d

192, 196-97 (4th Cir.), cert. denied, 118 S. Ct. 438 (1997). And,

Sheppard does not attempt to argue that cause and prejudice or a miscarriage of justice exist to excuse his procedural default. Consequently, we hold this claim to be procedurally defaulted.

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B.

Sheppard also contends that the state prosecutor deprived him of

due process of law by making improper closing arguments to the jury.

The Supreme Court of Virginia refused to consider this claim on

direct appeal, explaining that Sheppard had failed to properly preserve

the issue for review by making a contemporaneous objection and

seeking a mistrial. See Sheppard, 464 S.E.2d at 140-41. The Supreme

Court of Virginia disposed of this claim in reviewing Sheppard's petition for state habeas corpus relief by citing to Slayton. Sheppard has

not established cause and prejudice or a miscarriage of justice to

excuse his procedural default; thus, we conclude that we are foreclosed from considering this issue.

C.

Finally, Sheppard contends that the state trial court deprived him

of his constitutional rights under the Eighth and Fourteenth Amendments by permitting the Commonwealth to introduce various pieces

of evidence at sentencing. First, Sheppard argues that the state trial

court erred in admitting evidence concerning his participation in (1)

a robbery and shooting at a local motel and (2) a robbery that

involved a murder and a maiming. Sheppard also challenges the decision of the state trial court to permit the Commonwealth to call the

victim of the maiming, who had suffered brain damage in the incident, to be viewed by the jury. Sheppard further asserts that the Commonwealth should not have been permitted to introduce the testimony

of Maurice Turner, a fellow inmate, concerning Sheppard's admission

to involvement in as many as ten additional murders in the Richmond,

Virginia area. And, Sheppard maintains that the state trial court erred

in allowing the testimony of Lonnie Athens, a criminologist who

offered his opinion concerning Sheppard's future dangerousness.

On direct appeal, the Supreme Court of Virginia recognized that

Sheppard had argued that the state trial court erred in admitting three

of these four categories of evidence. The court, however, concluded

that the evidence challenged in each of these claims was relevant to

the future dangerousness predicate for imposition of the death penalty. And, because Sheppard had failed to assign error to the jury's

finding of future dangerousness, the court concluded that these claims

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had not been properly preserved for review. See Sheppard, 464 S.E.2d

at 138-41. In support of this ruling, the Supreme Court of Virginia

cited the Rules of the Supreme Court of Virginia 5:22(b), requiring

counsel for the appellant to file "assignments of error upon which he

intends to rely for ... review of the sentence of death," and 5:17(c),

directing that the petition for appeal "list the specific errors in the rulings below upon which the appellant intends to rely" and explaining

that "[o]nly errors assigned in the petition for appeal will be noticed

by" the court. Id. at 139.

Sheppard argues that this finding of procedural default by the

Supreme Court of Virginia is not adequate to foreclose federal habeas

corpus review because it has not been "consistently or regularly

applied." Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Consistent or regular application of a state rule of procedural default does

not require that the state court show an "undeviating adherence to

such rule admitting of no exception," Wise v. Williams, 982 F.2d 142,

143 (4th Cir. 1992) (internal quotation marks omitted), when the state

procedural rule has, as "a general rule, ... been applied in the vast

majority of cases," Plath v. Moore, 130 F.3d 595, 602 (4th Cir. 1997)

(internal quotation marks omitted), cert. denied , 118 S. Ct. 1854

(1998). But, "[i]n any given case, ... the sufficiency of such a rule to

limit all review of a constitutional claim itself depends upon the

timely exercise of the local power to set procedure." Ford v. Georgia,

498 U.S. 411, 423 (1991). State procedural requirements that are

newly adopted after the fact are inadequate to foreclose federal habeas

review if the defendant "could not be `deemed to have been apprised

of its existence'" at the relevant time. Id. (quoting NAACP v. Alabama

ex rel. Patterson, 357 U.S. 449, 457-58 (1958)); see Meadows v.

Legursky, 904 F.2d 903, 907 & n.3 (4th Cir. 1990) (en banc) (explaining that decisions applying a state rule after that time are irrelevant

in determining whether the rule was consistently applied at the critical

time).

Here, Sheppard facially complied with Rules 5:17(c) and 5:22(b)

by raising an assignment of error directed at each of the types of evidence that he now argues were unconstitutionally admitted. Of

course, the Supreme Court of Virginia properly may interpret its rules

to require an overarching assignment of error directed to the future

dangerousness aggravator. But, because it had not done so prior to the

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time defense counsel for Sheppard filed assignments of error on his

behalf, it appears that a persuasive argument can be made that Sheppard cannot be deemed to have been apprised of the requirement in

time to bring his actions into compliance with it. We need not address

this issue here, though, because we conclude that the four issues

either are procedurally defaulted for other reasons or lack merit.

i.

Sheppard argues that the state trial court erred in admitting evidence concerning his participation in two instances of criminal conduct for which he had not been convicted: (1) a robbery and shooting

at a local motel; and (2) a robbery that involved a murder and a maiming. We cannot conclude, however, that at the time Sheppard's convictions and sentences became final, all reasonable jurists would have

agreed that the admission of the evidence to which he points violated

due process. See O'Dell v. Netherland, 117 S. Ct. 1969, 1973 (1997)

(holding that "[b]efore a state prisoner may upset his state conviction

or sentence on federal collateral review, he must" convince the federal

habeas court that "a state court considering[the defendant's] claim at

the time his conviction became final would have felt compelled by

existing precedent to conclude that the rule [he] seeks was required

by the Constitution" (internal quotation marks omitted; second &

third alterations in original); see also Gray v. Thompson, 58 F.3d 59,

63-64 (4th Cir. 1995) (holding that the "new rule" doctrine of Teague

v. Lane, 489 U.S. 288 (1989), dictated that a habeas petitioner had not

established entitlement to the writ based on a claim that the prosecution violated his right to due process by failing to provide him with

adequate notice of its intent to introduce evidence during capital sentencing of his unadjudicated criminal offenses), aff'd in part, vacated

and remanded in part, 518 U.S. 152 (1996); cf. Green v. French, 143

F.3d 865, 874 (4th Cir. 1998) (explaining that the anti-retroactivity

principles of Teague are applicable in contexts where the limitations

of section 2254(d)(1) are not, such as when a claim is not "adjudicated on the merits in state court" because it was not properly raised,

but a federal court determines that failure to raise the claim is

excused). Thus, this argument by Sheppard does not provide a basis

for federal habeas relief.

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ii.

Sheppard also challenges the decision of the state trial court to permit the Commonwealth to call the victim of the maiming, who had

suffered brain damage as a result of the assault, to be viewed by the

jury. Sheppard did not raise this claim on direct appeal, and the state

habeas court relied on the procedural rule set forth in Slayton in denying relief on this claim. And, since Sheppard has not demonstrated

cause and prejudice or a fundamental miscarriage of justice to excuse

his default, federal habeas consideration of this issue is barred.

iii.

Sheppard further asserts that the Commonwealth should not have

been permitted to introduce the testimony of Maurice Turner, a fellow

inmate, concerning Sheppard's admission to involvement in as many

as ten additional murders in the Richmond, Virginia area. Also, Sheppard maintains that the state trial court erred in allowing the testimony

of Lonnie Athens, a criminologist who offered his opinion concerning

Sheppard's future dangerousness. Although Sheppard alleged error in

both of these rulings at trial and on direct appeal, Sheppard's arguments were not couched in terms of violations of federal law or the

United States Constitution. See Duncan v. Henry , 513 U.S. 364, 366

(1995) (per curiam) (holding that argument to state supreme court that

an evidentiary ruling by trial court violated state law was insufficient

to exhaust claim that the ruling constituted a violation of a federal

constitutional right, and rejecting the argument that similarity of

claims is adequate to exhaust); Matthews v. Evatt, 105 F.3d 907, 911

(4th Cir.) (explaining that in order for federal claim to be exhausted,

its substance must be presented to the highest state court), cert.

denied, 118 S. Ct. 102 (1997); Mallory v. Smith, 27 F.3d 991, 994

(4th Cir. 1994) (noting that exhaustion requires that petitioner do

more than apprise state court of the facts; he must"explain how those

alleged events establish a violation of his constitutional rights"); id.

at 995 (explaining that exhaustion requires "more than scatter[ing]

some makeshift needles in the haystack of the state court record"

(internal quotation marks omitted)). Because presentation of these

claims to the state court at this juncture would be fruitless, they properly are considered to be procedurally barred. See George v.

Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ("A claim that has not

 9
been presented to the highest state court nevertheless may be treated

as exhausted if it is clear that the claim would be procedurally

defaulted under state law if the petitioner attempted to raise it at this

juncture."), cert. denied, 117 S. Ct. 854 (1997). And, because Sheppard does not maintain that his default may be excused by cause and

prejudice or a miscarriage of justice, we hold these allegations of constitutional error to be procedurally defaulted.

III.

Sheppard contends that the state trial court deprived him of his

constitutional right to present evidence in mitigation of sentence by

preventing him from informing the jury that Graham received a life

sentence for his participation in the Rosenbluths' murders. "`[T]he

Eighth and Fourteenth Amendments require that the sentencer ... not

be precluded from considering, as a mitigating factor, any aspect of

a defendant's character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than

death.'" Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (second

alteration in original) (quoting Lockett v. Ohio , 438 U.S. 586, 604

(1978) (plurality opinion)). Evidence of the sentence received by a

codefendant, however, is neither an aspect of the defendant's character or record nor a circumstance of the offense. See Brogdon v.

Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986). Moreover, such evidence does not "tend[ ] logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have

mitigating value." McKoy v. North Carolina , 494 U.S. 433, 440

(1990) (internal quotation marks omitted). Sheppard has pointed to no

Supreme Court precedent that all reasonable jurists would conclude

dictates a decision that a codefendant's sentence is mitigating evidence. See Green, 143 F.3d at 870 (explaining that in determining

whether federal law was clearly established, we must look to Supreme

Court decisions). Accordingly, the rejection of this claim by the

Supreme Court of Virginia did not constitute an unreasonable application of clearly established federal law. See 28 U.S.C.A. § 2254(d)(1).

IV.

Sheppard next asserts that the "vileness" predicate for the death

penalty is unconstitutionally vague. We need not address Sheppard's

 10
claim that the "vileness" predicate is constitutionally deficient

because the future dangerousness predicate adequately supports the

verdict. See George, 100 F.3d at 362-63. Even if the "vileness" predicate failed to constitutionally channel the discretion of the jury in

imposing the death sentence, there is no question but that the finding

that Sheppard was guilty of capital murder, coupled with the finding

of the future dangerousness predicate, did so. And, the invalidity of

the "vileness" predicate would not result in the introduction of evidence not otherwise properly before the jury or the exclusion of evidence that was. See id. at 363; see also Zant v. Stephens, 462 U.S.

862, 885-89 (1983); accord Tuggle v. Netherland , 516 U.S. 10, 12-13

(1995) (per curiam). Thus, any error in the "vileness" aggravator does

not provide a basis for granting the writ of habeas corpus because

Sheppard's sentences still rest on firm ground.

V.

Sheppard also challenges the sufficiency of the evidence to support

his convictions of capital murder, asserting in accordance with his

trial testimony that he was not the triggerman in the murders and thus,

under Virginia law, cannot be sentenced to death. The Supreme Court

of Virginia rejected this claim on direct appeal, concluding that the

jury reasonably could have determined that Sheppard's testimony was

untruthful and that Sheppard's guilt had been established beyond a

reasonable doubt. See Sheppard, 464 S.E.2d at 136-38. Specifically,

the court noted (1) that Sheppard had admitted his presence in the

house at the time of the Rosenbluths' murders--but suggested that

Benji Vaughan, a mutual friend of his and Graham's, was the triggerman; (2) that the murder weapon was linked to Sheppard by a wealth

of evidence, including Sheppard's admission that he had accidentally

shot Vaughan with the same .38 caliber weapon six days prior to the

murders; and (3) that Vaughan testified that he was not present when

the Rosenbluths were murdered, did not know where the victims

lived, and did not possess a .38 caliber weapon either before or after

the murders. Under these circumstances, we cannot conclude that the

decision of the Supreme Court of Virginia that the evidence was adequate to support the verdict was unreasonable. See 28 U.S.C.A.

§ 2254(d)(1); Green, 143 F.3d at 870; see also Glasser v. United

States, 315 U.S. 60, 80 (1942) (holding that"[t]he verdict of a jury

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must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it").

VI.

Sheppard next contends that various actions on the part of trial

counsel deprived him of his Sixth Amendment right to effective assistance of counsel. He asserts that counsel acted outside the realm of

competent counsel (1) in failing to seek a mistrial or a cautionary

instruction in response to comments of the prosecutor in closing argument; (2) in failing to impeach the testimony of Jerry Chappell with

his inconsistent testimony from the Andre Graham trial; and (3) in

referring to Sheppard as a "predator" and as"not a good person" during closing arguments. And, Sheppard maintains that the cumulative

effect of these errors was prejudicial to him.

Sheppard has not presented his arguments that counsel was ineffective for failing to impeach the testimony of Jerry Chappell and for

referring to Sheppard as a predator and not a good person to the

Supreme Court of Virginia. As such, these claims are procedurally

defaulted since they would be procedurally barred under state law if

Sheppard attempted to raise them at this juncture. See George, 100

F.3d at 363.

The Supreme Court of Virginia held that Sheppard's undefaulted

claim of ineffective assistance of counsel--that counsel should have

sought a mistrial in response to the prosecutor's comments during

closing argument--lacked merit. We cannot conclude that in the

absence of this alleged unprofessional error by Sheppard's attorneys

there is a reasonable probability--i.e., one adequate to undermine our

confidence in the result--that "the result of the proceeding would

have been different." Strickland v. Washington, 466 U.S. 668, 694

(1984). Thus, we hold that the resolution of Sheppard's sole undefaulted claim of ineffective assistance of counsel by the Supreme

Court of Virginia was not an unreasonable application of clearly

established federal law as determined by the Supreme Court. See 28

U.S.C.A. § 2254(d)(1).

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VII.

For the reasons set forth above, we conclude that the district court

properly dismissed Sheppard's petition for habeas corpus relief.

Accordingly, we affirm.

AFFIRMED

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