Remanded by S. Ct. order filed 12/19/03.UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447 DARICK DEMORRIS WALKER, Petitioner-Appellant,

v. No. 02-22

PAGE TRUE, Warden, Sussex I State Prison, Respondent-Appellee. 4444444444444444444444444444444444444444444444448

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandr ia. Claude M. Hilton, Chief District Judge. (CA-01-1196-A)

Argued: January 21, 2003

Decided: May 6, 2003

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

____________________________________________________________ Dismissed in part and affirmed in part by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michele Jill Brace, Washington, D.C., for Appellant. Robert Quentin Harris, Assistant A ttorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Barbara L. Hartung, Richmond, Virginia; Lara A. Englund, Peter B. Rutledge, Samuel Broderi ck-Sokol, Anne Harkavy, Eric J. Hougen, Mason Kalfus, WILMER, CUTLER & PICKERING, Wash-ington, D.C.; David P. Donovan, WILMER, CUTLER & PICKERING, Tysons Corner, Virginia, for Appellant. Jerry W. Kilgore,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____________________________________________________________ Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

Petitioner Darick Demorris Walker was convicted by a Virginia state court jury of capital murder fo r the killings of Stanley Beale and Clarence Threat, use of firearm in the commission of a felony, andtwo counts of burglary. He was sentenced to death on the capital murder count and to prison terms on th e other counts. The Supreme Court of Virginia affirmed Walker's conviction and death sentence on direct appeal and denied Walker's petition for state habeas relief. The district court dismissed Walker's fede ral habeas petition and declined to grant a Certificate of Appealability (COA).

Walker now seeks a COA to bri ng an appeal of the district court's dismissal. Specifically, he asserts that he has made the required substantial showing that his Sixth Amendment right to counsel was violated at the guilt phase of his trial when his counsel failed to challengehis single trial for two murders, that his due process rights were violated when the Commonwealth failed to timely disclose Brady materials, and that his Sixth Amendment rights were violated at the sentencing phase of his trial when his counsel failed to investigate and present compelling mitigating evid ence. Because reasonable jurists could debate the district court's a ssessment of the first two of these claims (the right to counsel at the guilt phase of trial claim and the Bradyclaim) we grant a COA as to these claims; however, upon review of their merits, we affirm the district court's dismissal. Because reasonable jurists could not debate the district court's assess2ment of the right to counsel at the sentencing phase of his trial claim, we deny a COA as to this claim and dismiss.

I.

Stanley Beale lived with Catherine Taylor and their children, Monique, Bianca, and Sidney, in th e University Te rrace Apartments. 1 On November 22, 1996, Taylor was in the bedroom with Sidney, an infant, when she heard "a boom like noise" coming from the living room. As she entered the living room to investigate, she saw a man, whom she identified as Walker, kick in the locked front door. Walker was holding a gun and began yelling, "Where is he?" Walker then asked Beale, who was standing in the doorway of the kitchen, "What you keep coming up to my door, what you look for me for?" Beale responded that he did not know Walker and did not know where he lived. Bianca, who was 13 years old at the time, began to shout at Walker, telling him that her father did not know him. When Walker began shooting at Beale, Taylor took Bianca and Monique into the bathroom to hide. Beale was shot three times and died. Bianca testified that she knew Walker as "T odd" and that she identified Walker in a photospread as the person who killed her father.

On the night of Beale's murder, Tameria Patterson, a fourteenyear-old girl, was visiting a friend who lived in the University Terrace Apartments. Patterson testified that she saw a man she knew as "Todd" enter her friend's apartment th at night and say, "I shot him." Patterson identified Walker in a photospread as the person who had entered the apartment and made the statement.

Approximately seven months later, on the night of June 18, 1997, Clarence Threat and Andrea Noble were sleeping in their bedroom. They were awakened by a "pop" coming from the screen door, which was followed by a knock at the door. Noble went to the door and looked outside through a small window in the door, but did not see anyone. Twice more she heard some one knocking but did not see any-

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1 These facts are derived from the st atement of facts in the Supreme Court of Virginia's published opini on affirming Walker's conviction on direct appeal. See Walker v. Commonwealth , 515 S.E.2d 565, 568-69 (Va. 1999).

3one when she looked out the window. Sometime after the third knock, the door was "kicked open." Noble went to the living room to find a person she knew as "Paul" standing there with a gun. "Paul" pointed the gun at Noble, who backed into the bedroom. When they reached the bedroom, "Paul" hit Noble with the back of the gun and then shot Threat in the leg. "Paul" and Threat "exchanged words" and then "Paul" shot Threat six more times. Threat died from a gunshot wound to the chest. "Paul" warned Noble that if she told anyone "he would come back and kill [her] and [her] kids." At trial, Noble identified Walker as the person she knew as "Paul."

Walker was indicted on one count of capital murder for the killings of Beale and Threat within a three-year period in violation of Va. Code Ann. § 18.2-31.1(8) (Michie 1996), on four counts of the use of a firearm in the commission of a felony in violation of Va. Code Ann. § 18.2-53.1 (Michie 1996), and on two counts of burglary in violation of Va. Code Ann. § 18.2-90 (M ichie 1996). On August 31 and September 1, 1998, Walker was tried before a jury in the Circuit Court for the City of Richmond and found gu ilty of all charges. He was sentenced to death for the capital mu rder conviction, life imprisonment for each of the burglaries, and a total of 18 years imprisonment for the firearms offenses.

On June 11, 1999, the Supreme Court of Virginia affirmed Walker's conviction and death sentence. Walker v. Commonwealth , 515 S.E.2d 565 (Va. 1999). The Supreme Court of the United States denied Walker's petition for a wr it of certiorari on January 18, 2000. Walker v. Virginia , 528 U.S. 1125 (2000). On March 23, 2001, the Supreme Court of Virginia dismissed Walker's state petition for a writ of habeas corpus. The Supreme Court of the United States denied Walker's petition for a writ of certiorari on October 29, 2001. Walker v. True , 534 U.S. 1003 (2001).

On February 1, 2002, Walker filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The district court dism issed Walker's petition on July 26, 2002. On September 4, 2002, the district court denied Walker'sMotion to Alter or Amend Judgment and declined to grant a Certificate of Appealability (COA). Wa lker now seeks to appeal.

4II.

To appeal the denial of habeas relief in the district court, a prisoner must first obtain a COA. See 28 U.S.C.A. § 2253(c)(1) (West Supp. 2002). The first opportunity to obtain a COA is in the district court. When "an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue." Fed. R. App. Pro. 22(b)(1). In the present case, the district court denied Walker a COA.Because the requirement for a COA is jurisdictional, we may not consider the merits of Walker's cl aims unless Walker has made the threshold showing required to obtain a COA. Miller-El v. Cockrell

, 537 U.S. __, 123 S. Ct. 1029, 1039 (2003) ("This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it."). Thus our COA determination requires an overview of Walker's claims and a general assessment of their merits. 2

To obtain a COA, a petitioner must make a "substantial showing of the denial of a constitutiona l right." 28 U.S.C.A. § 2253(c)(2). "Under the controlling standard, a petitioner must `sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolv ed in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."'" Miller-El , 123 S. Ct. at 1039 (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000), which in turn was quoting Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983)). "A prisoner seeking a

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2 We note that our consideration of Walker's COA application after theissues of this case have already been fully briefed and argued is procedurally misaligned with the appropria te standard for COA applications. See Miller-El v. Cockrell , 123 S. Ct. 1029, 1040 (2003); Swisher v. True

,__ F.3d __, No. 02-10, slip op. at 8 (4th Cir. March 28, 2003). Nonetheless, because we address Walker's request under the standards set forth in Slack and Miller-El , our COA determination is not based on a full consideration of Walker's claims. Rather , we must grant a COA if, after a threshold inquiry, reasonable jurists would find the district court's assessment of Walker's claims de batable or wrong, "even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." MillerEl , 123 S. Ct. at 1040.

5COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part. We do not require petitioner to prove, before the issuan ce of a COA, that some jurists would grant the petition for habeas corpus." Id. at 1040 (internal quotation marks and citation omitted). "W e look to the District Court's application of AEDPA to petitione r's constitutional claims and ask whether that resolution was debatable amongst jurists of reason." Id. at 1039. "Where a district court ha s rejected [a petitioner's] constitutional claims on the merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" to obtain a COA. Slack

, 529 U.S. at 484. Further, "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

In his application for a COA, Walker raises thr ee issues that were addressed by the district court. Fi rst, Walker argues that the state court's conclusion that his trial counsel did not render ineffective assistance by failing to challenge hi s single trial for two murders was an objectively unreasonable application of federal law. He argues that the district court used an erroneous legal standard when it denied this claim. A COA is issued on this claim because Judge Gregory finds that reasonable jurists could debate whether the district court should have resolved this claim differently. 3 We address the merits of the claim below.

Second, Walker asserts that the Commonwealth failed to disclose exculpatory materials in violation of Brady v. Maryland , 373 U.S. 83 (1963). Walker challenges the state court's decision that a portion of his Bradyclaim is procedurally defaulted and that the remainder is without merit. He argues that the district court erred by concluding that he had not shown cause for th e default and by concluding that the

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3 Under 4th Cir. R. 22(a), "if any judge of [a] panel is of the opinion that the applicant has made a substantial showing of the denial of a constitutional right, the certificate will issue."

6state court's resolution of the remainder of his Bradyclaim was not an unreasonable application of federal law. A COA is also issued on this claim because Judge Gregory finds that reasonable jurists coulddebate whether the district court should have resolved this claim differently. We address the merits of the claim below.

Third, Walker argues that the state court's conclusion that his trial counsel did not render ineffective assistance during sentencing by failing to investigate and present compelling mitigating evidence was an objectively unreasonable application of federal law. Specifically, Walker claims that his trial counsel was ineffective because he failed to timely discover and effectively present school records and mental health history, failed to investigate and provide records to Dr. J.Randy Thomas of the Medical College of Virginia's Forensic Evaluation Program, Walker's court-appointed mental health expert, and failed to discover Walker's brain dys function. The state court, applying the two-part test for evaluating claims of ineffective assistance of counsel, see Strickland v. Washington , 466 U.S. 668, 687 (1984)("[T]he defendant must show that counsel's performance was deficient . . . [and] that the defi cient performance prejudiced the defense."), concluded that Walker's claim failed to satisfy the performance prong. The state court determined that counsel's delay in acquiring Walker's school records resulted from Walker's and his mother's recalcitrance, and Walkerpresented no evidence to the district court to rebut this conclusion. The state court also rejected Walker's claim that his counsel was ineffective by failing to further investigate Walker's organic brai n damage and conc luded that counsel's decision to use Walker's school records to demonstrate that Walker would respond well in a structured environment, rather than arguing that Walker suffered from an organic mental deficiency, was a reasonable trial strategy. The distri ct court determined that the state court's decision was not an unreasonable application of Strickland because, as there is only one refere nce to possible organic brain damage in Walker's school records, Walk er's counsel was justified in pursuing and preparing an alterna tive theory better supported by the evidence. Moreover, both the state court and district court determined that counsel's choice not to forward Walker's school records to the court-appointed mental health expe rt was reasonable because after he had diagnosed Walker as a sociopath , the mental health expert wasremoved from the defense witness list. Our threshold review of Walk7er's claim of ineffective assistance of counsel at the sentencing phase of his trial reveals that reasonable jurists could not debate the district court's resolution of this claim. We therefore deny a COA on this claim. We address below the two claims on which we have granted a COA.

III.

Walker was convicted of "[ t]he willful, deliberate, and premeditated killing of more than one pers on within a three-year period." Va. Code Ann. § 18.2-31.1(8). He was tr ied in a single trial before a single jury. Walker asserts that his c onviction is invalid because his trial counsel rendered ineffective assi stance by failing to challenge the constitutionality of § 18.2- 31.1(8), move for separate trials on the two murders, or request a jury instru ction that evidence of one murder could not be considered in determ ining Walker's guilt in the other.

As stated above, to show ineffective assistance of counsel "the defendant must show that counsel's performance was deficient . . . [and] that the deficient perfo rmance prejudiced the defense." Strickland , 466 U.S. at 687. The state court held that Walker's claim of ineffective assistance of counsel in the guilt phase satisfied neither the performance prong nor the prejudice prong of the Strickland test. Because the state court adjudicated this claim on the merits, we may not grant habeas relief unless the state court's adjudication "resultedin a decision that was contrary to, or involved an unreasonable application of, clearly established Fede ral law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1) (West Supp. 2002). Walker asserts that he is entitled to federal habeas relief because the state court's decision was an unreasonable application of Strickland . (Appellant's Br. at 14.) "`[U]nder the "unreasonable application" clause, a federal habeas c ourt may grant the writ if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case.'" Lockyer v. Andrade , 123 S. Ct. 1166, 1174 (2003) (citing Williams v. Taylor , 529 U.S. 362, 413 (2000)); see also Bell v. Cone , 535 U.S. 685, 122 S.Ct. 1843, 1850 (2002). "The `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer , 123 S. Ct. at 1174; see also Williams , 529 U.S. at 411 ("[A] federal habeas court may not issue

8the writ [under the unreasonable app lication clause] simply because that court concludes in its inde pendent judgment that the relevant state-court decision applied clearlyestablished federal law erroneously or incorrectly."). Instead, "[t]he state court's application of clearly established federal law must be objectively unreasonable." Lockyer , 123 S. Ct. at 1174 (citation omitted). Walker, therefore, "must do more than show that he would have satisfied Strickland's test if his claim were being an alyzed in the first instance." Bell , 122 S.Ct. at 1852. Rather, he must demonstrate that the state court applied Strickland in "an objectively unreasonable manner." Id. This he cannot do. Because, as discussed below, the state court's conclusion that Walker could not satisfy the prejudice prong was not unreasonable, we need not address the state c ourt's determination under the performance prong of Strickland

. To establish prejudice, a defe ndant "must show that there is a reasonable probability that, but for c ounsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694. "A reasonable probab ility is a probability sufficient to undermine confidence in the outcome." Id. It was not objectivelyunreasonable for the state court to conclude that there was no reasonable probability that a challenge to the constitutionality of § 18.2- 31.1(8) would have produced a different result.

In Commonwealth v. Smith , 557 S.E.2d 223, 226 (Va. 2002), the Supreme Court of Virginia rejected a claim that a single trial under § 18.2-31.1(8) constitute s a misjoinder of different offenses. The court explained that murders ch arged under § 18.2-31.1(8) are connected by the "fact that the capita l murder and the predicate murder or murders occur within a three-year period." Id. at 226. This "connection [is] similar to the link th e General Assembly has established between capital murders and predicat e offenses in other subsections of Code § 18.2-31." Id. For example, Va. Code Ann. § 18.2-31(5) (Michie 1996) provides that "[t]he willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape" constitute s a capital murder offense. The Supreme Court of Virginia thus concluded in Smith that "the Commonwealth may join two or more counts or charges of murder in a prosecution under Code § 18.2-31.1(8) despite the prejudice that may result thereafter . . . [if] the murders shall have occurred within a three

9year period." Id. at 227. Because the Supreme Court has never addressed whether it is a misjoinder to have a single trial for a capital offense involving the commission of two murders within a set period of time, the Smith decision does not contradict clearly established federal law. 4 Walker, therefore, has failed to show that there is a reasonable probability that his challenge to § 18.2-31.1(8) would have been successful.

It was also not objectively unreasonable for the state court to conclude that there was no reasonable probability that moving for separate trials or requesting an add itional jury instruction would have produced a different result. Even assuming that the trial court would have granted either motion, Walker has failed to establish prejudice. The risk created by joinder is that a jury may confuse the evidence and return a conviction against a defendant on a charge on which it would have acquitted if the eviden ce had been properly segregated. See Zafiro v. United States , 506 U.S. 534, 539 (1993) (explaining that the risk of joining defendants is th at the jury will consider evidence against a defendant that would not be admissible if a defendant were tried alone). To show prejudice, Walker must demonstrate that there is a reasonable probability that th e jury confused evidence of the predicate murder and evidence of the capital murder. It is not enough to show that he might have had a better chance for acquittal if the guilt phase of his trial had been bifurcated. See id. at 540 ("[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of ac quittal in separate trials."). Of course, some of the risk posed by joinder can be cured with proper instructions to the jury. Id. In this case, the risk of the jury confusing the evidence was minimal. As the dist rict court noted, "the joint trial was not unduly lengthy or complex and the evidence with respect to each murder was distinct and eas ily compartmenta lized." (J.A. at

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4 Under the precedent of the Supreme C ourt, a misjoinder "rise[s] to the level of a constitutional violation onl y if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." United States v. Lane , 474 U.S. 438, 446 n.8 (1986) ("Improper joinder does not, in itself, violate the Constitution."). As described in the text, Walker has failed to show that the single trial caused him any prejudice, and thus even if his single trial under § 18.2- 31.1(8) constituted a misjoinder, he could not show that it was a violation of the Constitution.

10965.) The transcript shows that in presenting its case against Walker, the Commonwealth kept its evidence regarding each murder separate. First it presented its case regarding the Beale murder and then put on its evidence about the Threat murd er. Paul Tuttle, the only witness to testify about both murders, testified first about the Beale murder, was excused, and then recalled during the Threat portion of the trial.

Moreover, the jury instructi ons made it clear that each murder was a separate element that had to be proved beyond a reasonable doubt.

If you find from the evidence that the Commonwealth hasproved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty of capital murder . . . . If you find from theevidence that the Commonwealth has proved beyond a reasonable doubt that the defendant killed Clarence Threat, and that the killing was willful, de liberate and premeditated, but fail to find that the defendant killed Stanley Roger Beale,then you shall find the defendant guilty of first degree murder . . . . If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt that the defendant killed Stanley Roger Beale, and that the killing was willful, deliberate and prem editated, but fail to find that the defendant killed Clarence Threat, then you shall find the defendant guilty of first degree murder . . . . Ladies and gentleman of the jury, it's simple . If you believe he killed both in a three year period that w ould meet the elements of capital murder. But, you might belie ve he killed one and not the other and that would be first degree murder. That would be a finding of not guilty as to one he is not guilty of.

(J.A. at 157-58.) Because the ev idence for each murder was easily distinguishable and the jury was in structed to cons ider each murder separately, it was reasonable for the state court to conclude that under Strickland , Walker suffered no prejudice from his counsel's failure to move for separate trials or reque st an additional jury instruction. Accordingly, the state court's denial of relief on Walker's claim of ineffective assistance of counsel at the guilt phase was not an unreasonable application of federal law.

11IV.

Walker argues that the Comm onwealth failed to disclose exculpatory evidence that would have imp eached the trial testimony of three of its key witnesses: Bianca Tayl or, Tameria Patterson, and Chris Miller. The state court c oncluded that Walker's Brady claim regarding Bianca was procedurally barred and found Walker's Bradyclaims regarding Patterson and Miller without merit. (J.A. at 348-49.) We will discuss the state court's appli cation of the procedural bar and determination on the merits in turn.

A.

Bianca testified at trial th at she saw the shooter enter the house, yell at her father, and then shoot he r father. Walker contends that the Commonwealth suppressed the followi ng evidence that indicates that Bianca did not see the shooter: the Supplementary Offense Report ofOfficer Ernst (J.A. at 537), Supplementary Offense Report of Detective Mullins (J.A. at 489), handwritten notes of Detective Mullins (J.A. at 485), and statements made by Bianca and Catherine Taylor to Detective James Hickman (J.A. at 543A). The state court, applying the rule in Slayton v. Parrigan , 205 S.E.2d 680 (Va. 1974), concluded that because this issue "could have been raised and adjudicated at [Walker's] trial and upon his appeal," Walker "ha[s] no standing to attack his final judgment of convi ction by habeas corpus." 205 S.E.2d at 682. The district court refused to address the merits of this claim, concluding that this state procedur al rule was independent and adequate and that Walker had failed to show cause and prejudice.

A federal court conducting habeas review is "precluded from reviewing the merits of a claim th at was procedurally defaulted under an `independent and adequate' stat e procedural rule, `unless the [applicant] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'" Fisher v. Lee , 215 F.3d 438, 455 (4th Cir. 2000) (alteration in original) (quoting Coleman v. Thompson , 501 U.S. 722, 750 (1991)). A state 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 "independent" if it doe s not "depend[ ] on a federal

12constitutional ruling," Ake v. Oklahoma , 470 U.S. 68, 75 (1985)(alteration in original). "We have repeatedly recognized that the procedural default rule set forth in Slayton constitutes an adequate and independent state law ground for decision." Fisher v. Angelone , 163 F.3d 835, 844 (4th Cir. 1998) (internal quotation marks omitted) (citing cases). Walker does not dispute that the state court applied an adequate and independent procedural ru le but rather asserts that he can demonstrate cause and prejudice to excuse the default. 5

"Cause excuses the failure to raise a claim during a state proceeding if `the factual or legal basis for [the] claim was not reasonably available.'" Fisher , 163 F.3d 835, 845 (alteration in original) (quoting McCleskey v. Zant , 499 U.S. 467, 494 (1991)). Walker contends that the Commonwealth's interference, sp ecifically its suppression of the documents listed above until eight m onths after direct appeal, prevented his counsel from raising the Bradyclaim regarding Bianca prior to state habeas. He correctly points out that "a defendant cannot conduct a `reasonable and diligent i nvestigation' [as] mandated by McCleskeyto preclude a finding of procedural default when the evidence is in the hands of the State." Strickler v. Greene , 527 U.S. 263, 287-88 (1999). If Walker, however, was aware or should have been aware that documents had been suppr essed when he appealed his conviction, suppression of the documents would not constitute cause for failure to bring a Bradyclaim. Id. at 287 (holding that suppression of documents can constitute cause and distinguishing cases in which "the petitioner was previously aware of the factual basis for his claim but failed to raise it earlier").

In applying the Slayton procedural bar, the state court found that at the time Walker filed for direct review, Walker's counsel was aware of the factual basis of Walker's Bradyclaim, specifically, the Commonwealth's suppression of the evidence that allegedly could have impeached Bianca's testimony. This factual finding is presumed to be correct and petitioner has th e burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Walker fails to satisfy this burden. Indeed, as Walker admitted in the first habeas petition he presented to the district court,

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5 Walker also does not argue that a fundamental miscarriage of justice will occur if we do not consider his claim.

13shortly before trial the defense received a Presentence Report referencing two undisclosed police reports containing the same information as the documents listed above. This Presentence Report, byreferencing these undisclosed documents, evidenced the Commonwealth's suppression of the alleged Bradymaterial. 6 The factual basis for the assertion of Walker's Bradyclaim, therefore, was available not only before direct appeal, but befo re sentencing. Because Walker has failed to rebut the state court's fi nding that he could have brought hisclaim on direct review, he cannot demonstrate that the alleged withholding by the Commonwealth constitute s cause to excuse his failure to raise the claim. 7

B.

We now turn to the remainder of Walker's Bradyclaim regarding the Commonwealth's alleged withholding of evidence that would have impeached Patterson and Miller. Patterson testified at trial that someone she knew as "Todd" entered the residence of Karen andCharles Randolph and Jennifer Stewart, an apartment at 1309 W. Graham Road, on the night of Beale's murder and exclaimed, "I shot him." (J.A. at 50-52.) Miller testifie d that he observed an unidentified person leave Beale's apartment afte r the shooting and enter the Ran-

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6 In Strickler v. Greene , 527 U.S. 263 (1999), the Court explained that mere suspicion is not enough "to im pose a duty on counsel to advance a claim for which they have no evidentiary support." Id. at 286. Because the Presentence Report provided dir ect evidence that the Commonwealth had failed to disclose the alleged Bradymaterial, Walker's reliance on Strickler for the premise that his appellate counsel had no basis to raise

a Bradyclaim is therefore misplaced. Walker's counsel received evidence before trial that should have atleast raised suspicion that the Commonwealth had the evidence Walker now claims was suppressed in violation of Brady . Specifically, the Report of Autopsy, stated that "[t]his 36 year old male [Stanley Beale] was shot multiple times by an unknown assailant. . . . [Witnesses] heard the shots but did not witness the shooting ." (J.A. at 541 (emphasis added).) However, we need not decide whether the Report of Autopsy was sufficient to support the Bradyclaim Walker now asserts because the Pr esentence Report, containing direct evidence of the alleged Bradyviolation, undoubtedly was.

7 Because Walker has not shown cause for the default, we need not consider his claim that he has established actual prejudice.

14dolph apartment. Walker contends that the Commonwealth suppressed the following records th at would have impeached the testimony of Miller and Patterson: (1) a handwritten note by Detective Mullins recording Karen Randolph's statement that "Ty didn't come into her apt. [1309 W. Graham Road] after the shooting" 8 (J.A. at 486); (2) a statement to Detec tive Mullins by 1309 W. Graham Roadresident Jennifer Stewart that she "didn't see him [Todd] Friday evening" (J.A. at 486); (3) the Commonwealth's witness synopsis sheet stating that Miller said he saw a black male "walk from scene putting something in his pocket. Didn't see face can't ID. . . Walked to front of 1309 W. Graham Rd. didn't go in. Got into a red Ford Escort and drove to Brook Rd." (J.A. at 483); (4) the Supplementary Offense Report of Detective Mullins summari zing Miller's account of what he witnessed, with no mention of th e perpetrator entering 1309 W. Graham Road (J.A. at 488-89); and (5) the Supplementary Offense Report of Officer Ernst summarizing Miller's account of what he witnessed, with no mention of the perpetrator entering 1309 W. Graham Road (J.A. at 537).

The state court concluded that this portion of Walker's Bradyclaim was without merit. Specifically, the state court concluded that "no material, exculpatory evidence was w ithheld." (J.A. at 348.) The state court reasoned that

[n]either Stewart nor Randolph testified at trial; a review of the investigating officer's co mplete notes indicates that Christopher Miller would not have been impeached since he told the officer that he saw a person walk from the Taylor apartment and enter the Randolph apartment. Randolph would have placed Walker at the murder scene regardless of whether she would have testified that he did or did not enter her apartment, thereby destr oying the exculpatory quality of the evidence alleged by petitioner to have been withheld.

(J.A. at 349.)

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8 Randolph stated in an affidavit th at she knew Walker as "Ty." As stated above, Patterson knew Walker as "Todd" and Noble knew him as "Paul."

15Under the Bradyrule, the prosecution is required "to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley , 473 U.S. 667, 675 (1985). "[F]avorable evidence is material, and constitutional errorresults from its suppression by the government,`if there is a reasonable probability that, had the eviden ce been disclosed to the defense, the result of the proceeding would have been different.'" Kyles v. Whitley , 514 U.S. 419, 433-34 (1995) (quoting Bagley , 473 U.S. at 682). While a court initially consider s the materiality of undisclosed evidence item by item, it must ultim ately consider the cumulative effect of all suppressed evidence. Id. at 435 & 436 n.10.

First, Randolph's statements to Detective Mullins that "Ty didn't come into her [1309 W. Graham Ro ad apartment] after the shooting" (J.A. at 486) cannot be character ized as impeachment evidence because Randolph did not testify. Mo reover, even if it were potentially exculpatory evidence, it would not fall under the Brady rule because Walker's defense counsel wa s aware before trial of the fact that Randolph did not see Ty enter her apartment after the shooting. Information known by the defense falls outside of the Bradyrule. See,

e.g. , United States v. Agurs , 427 U.S. 97, 103 (1976) (explaining that Bradyapplies in situations in which information is known to the prosecution but unknown to the defense).

Second, Stewart's statement to Detective Mullins that she "didn't see [Todd] Friday evening" at 1309 W. Graham Road (J.A. at 486) also cannot be characterized as impeachment eviden ce because Stewart did not testify. Moreover, Stewart's statement is not favorable to Walker because it does not contradict Patterson's claim that she saw Walker enter the apartment. Patte rson testified that she had been upstairs with Stewart and that sh e saw Walker as she was coming down the stairs. Patterson did not say whether Stewart was coming down the stairs with her and thus gave no indication that Stewart was also in a position to see Walker.

Finally, Walker claims thatthe following three documents contradict Miller's testimony that the person Miller saw leave Beale's apartment entered the Randolph apartment before driving away: theCommonwealth's witness synopsis sheet (J.A. at 483), the Supplementary Offense Report of Detec tive Mullins (J.A. at 488-89), and

16Supplementary Offense Report of Officer Ernst (J.A. at 537). The witness synopsis sheet was created by the prosecution to summarize statements by the witnesses. The statement recorded on the witnesssynopsis sheet, that the person Miller observed the night of the shooting "didn't go in" 1309 W. Graham Road (J.A. at 483), contradicts Miller's testimony that the person he saw leave Beale's apartment entered the Randolph apartment before driving away. Even if Brady requires a prosecutor to disclose work product, 9 there is no indication that Miller adopted or approved this statement. Cf. Goldberg v. United States , 425 U.S. 94, 98 & n.3 (1976) (explaining that a prosecutor's work product must be produced under the Jencks Act if it contains a statement relating to the testimony of a government witnessthat has been "signed or otherwise adopted or approved" by the government witness). Indeed, it is not even clear whethe r the prosecution recorded these statements during an interview of Miller or was merely attempting to summarize another report, such as Detective Mullins's Supplementary Offense Report. Det ective Mullins's report, created on December 16, 1996, contains no statement by Miller regardingwhether the person he saw entered Randolph's apartment before driving away. Detective Ernst's descrip tion of his meeting with Miller on the day of the murder also does not indicate whether the person Miller saw entered the Randolph's apartment. Miller's statements reflected in the Supplementary Offense Reports, therefore, do not contradict his testimony at trial. Moreover, even if we assume that the Supplementary Offense Reports and the witness synopsis sheet fall under the Bradyrule and would have had some impeachment effect, the prosecution would have been able to re habilitate Miller with Officer Mullins's contemporaneous notes of hi s interview of Miller on the day of the murder, which reflect that M iller made the following statements: "Car parked on grass 1309 W. Graham Rd. he went inside 1309 before he left." (J.A. at 860.) It was therefore not an unreasonable application of federal law for the stat e court to conclude that the material allegedly withheld in violation of Bradywas either not impeachment evidence or the cumulative e ffect of any material that was

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9 The Supreme Court has not decided whether Bradyrequires a prosecutor to turn over his work product. See Goldberg v. United States , 425 U.S. 94, 98 n.3 (1976) (leaving open the question of whether Brady compels the prosecutor to produce notes not covered under the Jencks Act).

17impeachment evidence did not make a different result reasonably probable.

V.

Walker also seeks to assert that his execution would violate the Eighth Amendment under Atkins v. Virginia , 536 U.S. 304, 122 S. Ct.2242, 2252 (2002) (holding that executing a mentally retarded individual violates the Eight Amendm ent's ban on cruel and unusual punishments), a claim he did not make in the district court and has not presented in state court. Because Walker's Atkins claim is "a brandnew, free-standing allegation of c onstitutional error in the underlying criminal judgment," United States v. Winestock , __ F.3d __, No. 02- 6304 (4th Cir. Apr. 25, 2003) (expl aining how to identify a successive application), we construe Walker's assertion of this claim as a motion for authorization to file a successive habeas corpus application under 28 U.S.C.A. § 2244(b) (West Supp. 2002). See Fischer v. United States , 285 F.3d 596, 600 (7th Cir. 2002) ("If the original [habeas] petition did not contain [a new rule of constitutional law as a] groundfor relief, then that ground has been waived on appeal, . . . and a prisoner's habeas options are thereafte r limited by the special rules that apply to second or successi ve collateral attacks."). But see Hill v. Anderson , 300 F.3d 679, 682 (6th Cir. 2002) (combining petitioner's Atkins claim, raised for the first tim e on appeal, with habeas petition at issue in appeal). A successive habeas petition is allowed under § 2244(b)(2)(A) if "the claim relie s on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unava ilable." Walker's claim satisfies these requirements because the Court in Atkins announced a new rule of constitutional law that applies re troactively to cases on collateral review. See Penry v. Lynaugh , 489 U.S. 288, 330 (1989) (concluding that a holding that "the Eighth Amendment prohibits the execution of mentally retarded persons . . . would fall under the first exception to [ Teague 's] general rule of non-retroac tivity and would be applicable to defendants on collateral review"); accord Hill , 300 F.3d at 681. We, therefore, grant Walker's moti on and authorize the district court to consider Walker's successive habeas petition. 10 The district court,

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10 Because we need not consider the f actual predicate of Walker's claim to address his motion for authoriza tion to file a successive petition, we deny Walker's Motion for Leave to File Declaration of Dr. Scott W. Sautter as Supplemental Material.

18of course, on consideri ng Walker's petition, is free to dismiss it without prejudice to afford the Commonwealth of Virginia the first opportunity to assess Walker's Atkins claim. See, e.g.

, Bell v. Cockrell , 310 F.3d 330, 332-33 (5th Cir. 2002) ("[I]n ferior federal courts have no useful role to play until and unless following Atkins , a death sentence is reaffirmed or again imposed on [the petitioner] by the state courts. . . . [T]he state must be given the first opportunity to apply the Supreme Court's holding in order to insure consistency among state institutions and procedures and to adjust its prosecutorial strategy to the hitherto unforeseen new rule."); Hill , 300 F.3d at 682 ("TheSupreme Court's decision to return Atkins's case to state courts suggests that we should return [pe titioner's] Eighth Amendment retardation claim to the state for further pr oceedings. . . . [The state] should have the opportunity to develop its own procedures for determining whether a particular claimant is re tarded and ineligible for death."). Following state review of Walker's Atkins claim, Walker would be free to refile his second petition should the need arise.

VI.

In summary, we grant a COA as to Walker's claim that his Sixth Amendment right to counsel was violated at the guilt phase of his trialand his claim that his due process rights were violated when the Commonwealth failed to timely disclose Bradymaterials. Because we conclude that the resolution of these issues by the Supreme Court of Virginia does not constitute an unreasonable application of clearly established federal law, we affirmthe district court's dismissal of these claims. We deny a COA and dismiss Walker's appeal with regard to his claim that his Sixth Amendment rights were violated at the sentencing phase of his trial because reasonable jurists could not debate the district court's resolution of that issue.

DISMISSED IN PART AND AFFIRMED IN PART

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