UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TYRONE DELANO GILLIAM,

Petitioner-Appellant,

v.

STUART O. SIMMS, Secretary,

Department of Public Safety and

No. 97-14

Correctional Services,

Respondent-Appellee.

WESLEY EUGENE BAKER; KENNETH

LLOYD COLLINS; JOHN MARVIN

BOOTH; STEVEN H. OKEN,

Amici Curiae.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-94-1422-MJG)

Argued: October 29, 1997

Decided: January 13, 1998

Before MURNAGHAN, NIEMEYER, and HAMILTON,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,

in which Judge Murnaghan and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Jerome Howard Nickerson, Jr., Bel Air, Maryland, for

Appellant. Gwynn X. Kinsey, Jr., Assistant Attorney General, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,

Baltimore, Maryland, for Appellee. ON BRIEF: Billy H. Nolas, Philadelphia, Pennsylvania, for Appellant. J. Joseph Curran, Jr., Attorney

General of Maryland, Criminal Appeals Division, OFFICE OF THE

ATTORNEY GENERAL, Baltimore, Maryland, for Appellee. Gary

W. Christopher, Assistant Federal Public Defender, Baltimore, Maryland; Peter E. Keith, GALLAGHER, EVELIUS & JONES, Baltimore, Maryland; Nevett Steele, Jr., Michael J. Gentile, Towson,

Maryland; William B. Purpura, Baltimore, Maryland; Fred Warren

Bennett, CATHOLIC UNIVERSITY LAW SCHOOL, Washington,

D.C.; Charles G. Bernstein, Baltimore, Maryland; Neil Ian Jacobs,

Rockville, Maryland, for Amici Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

A Maryland state trial court convicted Tyrone Gilliam of the firstdegree murder of Christine Doerfler and sentenced him to death.

After exhausting his direct state appeals and unsuccessfully seeking

a writ of certiorari from the United States Supreme Court, Gilliam

filed several habeas petitions in state court, all of which were denied.

He then filed a petition for a writ of habeas corpus in federal court

which the district court denied. On appeal, Gilliam argues that the district court erred (1) in denying his petition without granting him a

hearing, and (2) in denying his claims for ineffective assistance of

counsel during a pretrial hearing on his motion to suppress his confession, during the sentencing phase of his trial, and during direct appeal.

For the following reasons, we affirm.

I

During the evening of December 2, 1988, Tyrone Gilliam, Kelvin

Drummond, and his brother, Tony Drummond, car-jacked Christine

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Doerfler as she was getting out of her car in a parking lot near her sister's home. They forced Doerfler to drive around to find a Signet

Bank at which they could force her to use her Signet Bank card.

When they arrived at the end of Gum Spring Road in Baltimore

County, they stopped their cars and began talking while Gilliam

guarded Doerfler, aiming a sawed-off shotgun at her head. Kelvin

Drummond later testified that as he lit up a cigarette that his brother

Tony had given him -- the Drummond brothers were standing by

their own car -- he heard a loud bang and saw Doerfler slumped over

the steering wheel of her car. When Kelvin asked Gilliam why he shot

Doerfler, Gilliam answered "because she saw [my] face." The three

had stolen three dollars from Doerfler and, at the time, had been using

alcohol and drugs, including PCP.

A few days later, in the early morning hours of December 5, Gilliam and the Drummond brothers were involved in an armed robbery

of a mini-mart. They left the mini-mart in two cars, and, a short time

later, police tried to stop them. After a high-speed chase, the police

apprehended Gilliam when his car crashed into a median embankment. Because Gilliam was bleeding from the head, the police took

him to the emergency room for treatment. In the car, they found Gilliam's sawed-off shotgun with three shells in it. Shortly after six

o'clock in the morning, after Gilliam had received emergency treatment and had been visited by his mother, he was released from the

emergency room to the custody of police and placed in a holding cell.

Later in the afternoon, at almost 5:00 p.m., police questioned Gilliam.

After being confronted with a statement from Kelvin Drummond that

identified Gilliam as Doerfler's shooter, Gilliam confessed, making

oral and tape-recorded confessions.

After electing a bench trial, Gilliam was tried in the Circuit Court

for Baltimore County before Judge Fader, who convicted him of firstdegree murder, robbery with a dangerous weapon, use of a handgun

in the commission of a felony, and kidnapping. In finding Gilliam

guilty of first-degree murder, Judge Fader relied on both premeditated

and felony murder grounds. During the sentencing phase, Judge Fader

found two aggravating factors and no mitigating factors and sentenced Gilliam to death on the murder charge. The Court of Appeals

of Maryland affirmed, Gilliam v. State ("Gilliam I"), 320 Md. 637

 3
(1990), and the Supreme Court denied Gilliam's petition for a writ of

certiorari, Gilliam v. Maryland, 498 U.S. 1110 (1991).

With different counsel, retained by the Public Defender's Office,

Gilliam filed a post-conviction challenge in the Maryland trial court,

alleging the ineffective assistance of counsel. Following a four-day

evidentiary hearing, the court denied post-conviction relief. The Court

of Appeals of Maryland affirmed, Gilliam v. State ("Gilliam II"), 331

Md. 651 (1993), and the Supreme Court again denied Gilliam's petition for a writ of certiorari, Gilliam v. Maryland, 510 U.S. 1077

(1994).

Gilliam then filed a second petition for post-conviction relief in

state court, alleging that execution by means of a gas chamber constituted cruel and unusual punishment in violation of the Eighth Amendment. While the trial court indicated it would deny Gilliam's petition

because the claim was without merit, it deferred issuing an execution

warrant until March 7, 1994, to allow him time to file a federal habeas

petition. Instead of preparing a federal petition, Gilliam retained new

counsel and began preparing an amended second petition for state

post-conviction relief. In the meantime, the Circuit Court for Baltimore County denied Gilliam's pending petition. A few days later, Gilliam filed his second amended state petition reiterating not only the

Eighth Amendment challenge but also seven new claims for relief.

These new claims included the allegations that the state, at sentencing, presented psychiatric testimony violating Estelle v. Smith, 451

U.S. 454 (1981), and that the Estelle v. Smith claim was not procedurally barred because trial counsel was ineffective. The second amended

petition also raised an alleged conflict of interest in that Gilliam's trial

counsel was assisted by the Office of Public Defender and his appeal

counsel was an employee of that office, which also employed the

attorney representing his co-defendant, Kelvin Drummond. The Circuit Court for Baltimore County denied the second amended petition

on procedural grounds because it was moot, and the Court of Appeals

of Maryland denied leave to appeal.

Gilliam next filed a common law writ of habeas corpus in Montgomery County, Maryland, on the ground that he possessed newly

discovered evidence of his actual innocence. That petition was

assigned to the court in Baltimore County, which denied the petition

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without a hearing. The Court of Appeals of Maryland again denied

Gilliam leave to appeal.

Finally, Gilliam filed the petition in this case. Following various

amendments to the petition, the district court issued an opinion on the

merits, without finding it necessary to have an evidentiary hearing.

The district court first noted that its decision would not be affected

by the enactment of the Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,

because the outcome was not affected by the retroactivity vel non of

that statute.1 The district court then held, under pre-AEDPA law, that

Gilliam's counsel at the pretrial suppression hearing had not been

constitutionally ineffective and that Gilliam's appellate counsel had

also not been constitutionally ineffective because of an alleged conflict of interest. The district court did, however, hold that representation of Gilliam's counsel at the sentencing phase of trial fell below

Sixth Amendment standards in that the attorney "failed to conduct an

adequate investigation and prepare expert witnesses needed to present

mitigating circumstances at sentencing." In particular the court held

that Gilliam's counsel during the sentencing phase had "failed to act

in his client's behalf when he consented to the prosecution's request

[for a psychiatric interview] without adequate reason, without his

presence at the interviews, and with the knowledge that he would not

be presenting psychiatric testimony on behalf of his client at

sentencing." (Emphasis in the original). The court vacated the death

sentence and remanded the case to state court for resentencing. Following the state's motion to alter or amend the judgment, however,

the district court reversed itself because Gilliam had failed to show

_________________________________________________________________

1 An amicus brief has been filed by five Maryland death row inmates

arguing that Maryland's statutory scheme does not comply with the

requirements of Chapter 154 of the AEDPA, specifically 28 U.S.C.

§ 2261. Recognizing that this issue has not been resolved on appeal, the

amicus brief urges us to adopt the reasoning of the district court in Booth

v. Maryland, 940 F. Supp. 849 (D. Md. 1996), vacated on other grounds,

112 F.3d 139 (4th Cir. 1997), which held that Maryland was not "entitled

to invoke the benefits of Chapter 154." Because we conclude that the district court correctly denied Gilliam's petition for habeas relief under preAEDPA law, which is more generous to Gilliam than is the AEDPA, we

do not address whether the AEDPA applies to Gilliam's petition.

 5
that the result of the sentencing would have been different but for the

ineffectiveness of counsel. The court concluded that because the sentencing court properly found no mitigating circumstances to outweigh

the aggravating factors of the crime's commission during a robbery

and a kidnapping, "even if additional information concerning childhood sexual abuse had been taken into account by the sentencing

court as a mitigating factor, there is little likelihood that a reasonable

experienced jurist nevertheless would have found such abuse sufficient to outweigh the severity and aggravating circumstances of the

crime." Accordingly, the district court issued a supplemental memorandum, reinstating the death sentence.

Gilliam now appeals, contending that (1) counsel at his pretrial

suppression hearing was ineffective; (2) counsel at his capital sentencing was also constitutionally deficient because they failed to produce mitigating evidence of childhood sexual abuse, drug addiction,

and other similar claims; and (3) counsel on direct appeal had a conflict of interest when the state Public Defender's office represented

both Gilliam and his co-defendant through separate attorneys.

II

Gilliam first argues that the district court erred in ruling on his

habeas petition without granting him an evidentiary hearing. See Rule

8, Rules Governing § 2254 Cases. Under pre-AEDPA law, in order

to obtain a federal habeas hearing, Gilliam is required to (1) allege

specific facts which, if true, would entitle him to relief, and (2) establish one of the factors listed in Townsend v. Sain, 372 U.S. 293, 313

(1963), overruled on other grounds, Keeney v. Tamayo-Reyes, 504

U.S. 1 (1992), to determine whether the petitioner received a full and

fair hearing in prior proceedings. See Bennett v. Angelone, 92 F.3d

1336, 1347 & n.10 (4th Cir. 1996). The determination of whether Gilliam should have been afforded a hearing thus necessarily depends on

the merits of his habeas claims. Because we rule that Gilliam's claims

are without merit, it follows that the district court did not err in refusing to conduct a hearing under Rule 8. See Townsend, 372 U.S. at

313.

III

On the merits of his petition, Gilliam contends that the district

court improperly denied him relief on his claim that his Sixth Amend-

 6
ment right to be free from ineffective counsel was violated at the pretrial hearing on his motion to suppress his confession. He maintains

that his counsel failed adequately to present factual and expert opinion testimony indicating that his confession was not voluntary. In particular, he argues that his attorney failed to interview witnesses who

knew about Gilliam's head injury, to obtain additional documents

regarding his injury, and to introduce evidence about the long-lasting

effects of PCP.

The facts supporting this claim were resolved against Gilliam in

state court. As observed by the Court of Appeals of Maryland:

Gilliam was arrested in the early morning hours of December 5, 1988, two days after the murder, following a highspeed chase which ended when Gilliam's car collided with

a median wall. The police took Gilliam to a local hospital,

where he was treated and released to police custody. Prior

to being interrogated, he was detained in a holding cell for

over ten hours. When his interrogation began over twelve

hours after his arrest, Gilliam was asked to read the Miranda

warnings aloud, and did so. Gilliam also initialed and signed

a Miranda rights waiver. The interrogation officers testified

that Gilliam was coherent, responsive, and did not appear to

be suffering from the effects of drugs.

Gilliam II, 331 Md. at 666 (footnote omitted). Notwithstanding these

facts, Gilliam contends that his attorney should have brought in as

witnesses the state trooper who arrested Gilliam, Gilliam's mother,

and two other witnesses, who could testify regarding his impaired

physical condition and drug use prior to his arrest. But, as the Court

of Appeals noted, such testimony could not override the well established facts:

[Gilliam's attorney] did consult with Dr. Ramamurthy, a

specialist in internal medicine, who upon reviewing the hospital reports detailing Gilliam's medical treatment after his

arrest, concluded it would be difficult to present expert testimony on mental impairment at the time of the confession.

The hospital report indicated Gilliam never lost consciousness after the accident and that he was alert and understood

 7
what was happening. Gilliam had advised [his attorney]

before the suppression hearing that he "knew what[he] was

saying," that "he was not intoxicated" when he confessed,

and that he confessed after he was told Kelvin Drummond

confessed because he "had the presence of mind to try and

establish a defense of accidental shooting." Further, Gilliam

did not give his statement to the police until over twelve

hours after his arrest and after he had been left alone in a

cell for approximately ten hours prior to his interrogation,

thus militating against any claim of intoxication or sleep

deprivation.

Gilliam II, 331 Md. at 667. These factual findings by a state court of

competent jurisdiction "shall be presumed to be correct," unless Gilliam is able to offer some reason to conclude otherwise. See 28 U.S.C.

§§ 2254(d) & (e) (1966). Gilliam has failed to establish any reason to

disturb the state courts' factual findings and accordingly, as the state

court concluded:

Faced with the evidence of the voluntariness of Gilliam's

tape recorded confession as well as with Gilliam's tacit

acknowledgment of its voluntariness, [Gilliam's attorney]

did as much as could reasonably be expected. Gilliam has

failed to prove [the attorney] rendered ineffective assistance

in his preparation for or representation during the suppression hearing.

Gilliam II, 331 Md. at 668. Of course, while the state's factual findings are presumed correct, to the extent that an ineffective assistance

of counsel claim is a mixed question of law and fact, we conduct our

review de novo. See, e.g., Becton v. Barnett, 920 F.2d 1190, 1192 (4th

Cir. 1990).

In order to show that his Sixth Amendment rights had been

abridged, Gilliam must show first that his "counsel's performance

was deficient," and second that "the deficient performance prejudiced

the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984).

Moreover, the alleged deficiency of representation must be "so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Id. There is a strong presumption that counsel's perfor-

 8
mance was not deficient, and the burden is on the defendant to demonstrate that his legal representation fell below"an objective standard

of reasonableness." Id. at 688. In short, the effectiveness of counsel

under the Sixth Amendment is adjudged by "(1) the competency of

representation and (2) the prejudice which any alleged deficiency

caused to the defense." United States v. Tatum, 943 F.2d 370, 375

(4th Cir. 1991).

Gilliam argues under this standard that his attorney should have

produced "some of the nation's top experts in the effects of PCP" or

additional witnesses who could have testified to the seriousness of the

injuries sustained by him in the pre-arrest accident. He concedes,

however, that his hospital records were admitted into evidence. He

must also acknowledge that his counsel consulted with an expert who

concluded that "it would be difficult to present expert testimony on

mental impairment at the time of the confession." Gilliam II, 331 Md.

at 667. The record does show that Gilliam's counsel did explore the

various possibilities and, indeed, presented evidence from Gilliam

himself that the effect of drugs at the time of his confession made him

"paranoid" and "uncomfortable," and that"in a way I understood [the

Miranda warnings] and in a way I didn't." Id. at 366-67. In view of

this record, we conclude that Gilliam has failed to establish that the

level of his counsel's representation at his pretrial suppression hearing

fell below the "reasonably effective assistance" test of Strickland.

IV

Gilliam contends that his counsel was also ineffective during the

sentencing phase of his trial because counsel failed adequately to

develop and present mitigating evidence. Gilliam asserts that his

counsel failed to present factual mitigating evidence or investigate:

(1) child abuse that Gilliam suffered while growing up; (2) his "impaired cognitive functioning"; (3) his substance abuse and addiction;

(4) the facts underlying Gilliam's prior convictions and the abuse he

suffered while imprisoned for these crimes; (5) his domination by the

Drummond brothers; (6) his "substantial impairment" due to drugs at

the time he murdered Christine Doerfler; and (7) his"youthful age."

Gilliam also asserts that counsel (8) ineffectively prepared mental

health experts retained for his defense for their anticipated mitigating

testimony; and (9) failed to prevent a state psychiatrist from inter-

 9
viewing Gilliam prior to capital sentencing, attend that interview, and

seek exclusion of the psychiatrist's testimony.

We conclude that many of these claims and factual allegations are

procedurally barred by the procedural default doctrine because they

were never presented in state court. And we conclude that the claims

which are not procedurally barred fail on their merits because Gilliam

has failed to show prejudice. See Tatum, 943 F.2d at 375. We begin

with the items procedurally barred.

The procedural default doctrine requires a state prisoner seeking

federal habeas corpus relief to exhaust fully his state remedies and

present each of his claims first to the appropriate state court. Under

pre-AEDPA law, habeas relief is barred "unless it appears that the

applicant has exhausted the remedies available in the courts of the

State." 28 U.S.C. § 2254(b) (1966). The purpose underlying this doctrine is to give the "state courts the first opportunity to consider

alleged constitutional errors occurring in a defendant's state trial and

sentencing." Matthews v. Evatt, 105 F.3d 907, 910 (4th Cir.), cert.

denied, 118 S. Ct. 102 (1997). Accordingly, federal habeas courts are

authorized to consider only those issues which have been "`fairly

presented' to the state courts." Id. at 911 (quoting Picard v. Connor,

404 U.S. 270, 275-78 (1971)). To present an issue to the state court

fairly, the petitioner must present the state court with the "`same factual grounds and legal theories'" that he seeks to assert in his federal

petition. Id. (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th

Cir.), cert. denied, 116 S. Ct. 2574 (1996)). Procedural default may

be excused only if the petitioner "can demonstrate cause and prejudice for the default," Gray v. Netherland, 116 S. Ct. 2074, 2080

(1996), or that "a fundamental miscarriage of justice" would result,

Harris v. Reed, 489 U.S. 255, 262 (1989); see also Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Moreover, when a state court

has declined to review the merits of a federal constitutional claim

because it has relied on an adequate and independent state procedural

rule, "we may not consider these claims on their merits unless [the

petitioner] can demonstrate that cause and prejudice exist to excuse

the default or that the failure of the court to consider the claims would

amount to a fundamental miscarriage of justice." Mackall v.

Angelone, ___ F.3d ___, No. 95-4018, slip op. at 6 (4th Cir. December 18, 1997). The burden of proving that a claim has been exhausted

 10
by presenting it to the state's highest court "lies with the petitioner."

Matthews, 105 F.3d at 911.

In connection with Gilliam's ineffective counsel claim during his

sentencing, most of the facts and claims which he proffers were never

presented to the state courts. Specifically, claim (1), based on a failure

to present evidence of child abuse, relies on affidavits which were

first attached to the amended federal habeas petition and were never

presented to the state courts. Claim (3), based on substance abuse and

addiction, claim (5), based on domination by the Drummond brothers,

and claim (6), based on mental impairment due to drugs, while considered on different facts by the state courts, are also based upon affidavits never presented to the state courts. Furthermore, several claims

were presented for the first time in the amended federal habeas petition. These include claim (4), that counsel failed to develop the facts

underlying his prior convictions and the abuse he allegedly suffered

while imprisoned for them, and claim (9), that counsel failed to prevent a state psychiatrist from interviewing him prior to sentencing.

Finally, claim (7), that Gilliam's counsel failed to argue the statutory

mitigating factor of youthful age, was never fairly presented to the

state courts. Because Gilliam has had the opportunity for a direct

appeal of his conviction to Maryland's highest court and the United

States Supreme Court, as well as two prior state post-conviction proceedings, state review is no longer available for these defaulted

claims, see Md. Code Ann., Art. 27 § 645A(a)(2) (1994) (limiting

state habeas petition to two petitions),2 and they are barred by the procedural default doctrine unless the petitioner can show cause and prejudice or a miscarriage of justice to excuse his default. See Matthews,

105 F.3d at 911.

Gilliam argues that he has shown cause to excuse these defaulted

claims and factual allegations because his state post-conviction counsel acted under a conflict of interest. This argument has no merit,

however, because it relies on the alleged ineffectiveness of his state

post-conviction counsel, and there is no constitutional right to counsel

in state collateral proceedings. See Pennsylvania v. Finley, 481 U.S.

_________________________________________________________________

2 Maryland statute now prohibits a state habeas petitioner from filing

more than one petition. See Md. Code Ann., Art. 27 § 645A(a)(2)(i)

(1997).

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551, 555 (1987). Since Gilliam had no constitutional right to counsel

during his state collateral attacks on his conviction, he had no right

to conflict-free counsel or even effective counsel. See Mackall, slip

op. at 13 (holding that habeas petitioner "has no right to effective

assistance of counsel in his state habeas proceedings").

Not procedurally barred are Gilliam's claims that the mitigating

factors of impaired cognitive functioning and duress were not sufficiently developed; that counsel was ineffective in its reliance upon

graduate students to research Gilliam's psychosocial history; and that

counsel failed to prepare Gilliam's psychological experts adequately.

Accordingly, we address these claims on the merits.

Gilliam's mitigation case at sentencing consisted of the testimony

of Dr. Shapiro, a psychologist who had developed Gilliam's psychological "profile" based upon a battery of tests, interviews of family

members obtained by graduate students, and testimony by family

members. The state expert, Dr. Siebert, testified to rebut the mitigation evidence, and based his opinions on material from several

sources, including his two personal interviews of Gilliam, which Gilliam's counsel did not attend. Gilliam's counsel did consider calling

another doctor as a witness, but, after consulting with co-counsel,

with Gilliam, and with Gilliam's mother, the strategic decision was

made not to call the second doctor. Gilliam's counsel did not present

any other mitigating evidence witness to testify to his alleged mental

impairment and domination by the Drummonds at the time of the

murder. But Gilliam's counsel did argue to the court at some length

that Gilliam acted under substantial duress because he was afraid that

Tony Drummond would kill him if he did not shoot Christine Doerfler, that Gilliam was the product of a horribly dysfunctional and abusive family, that he was delusional from drugs at the time of the

murder, that he suffered from a mental disorder and was substantially

impaired as a result of his abusive childhood and drug abuse, that he

was drug addicted, that he was of youthful age (22), that he had a low

I.Q., and that he was remorseful and unlikely to commit any future

crimes. Gilliam's counsel concluded by arguing that his client

was under the influence of nartcotics [sic] and had been for

such a long period of time prior to that, he was emotionally

disturbed by these drugs, does have a mental disorder as a

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result of these drugs. And the state proved a very important

thing, that after this awful crime was committed, what did

they do, what did all these guys do? They came back, got

something to eat with their girlfriends and did what? Continued to use PCP because they are addicted to this horrible

drug. That is what this case is all about, how nartcotics [sic],

PCP and cocaine, can destroy a human being who in turn

took the life of someone else.

 But I think we have proved to you by the preponderance

of the evidence, overwhelming evidence that his ability was

substantially impaired as a result of a mental disorder, emotional disturbances, life-long and the drugs. I ask the Court

most respectfully to impose a life sentence if that is what it

has to be. I think that my client can be rehabilitated and I

ask the Court most respectfully do not, do not impose the

death penalty.

Finally, during sentencing, Gilliam addressed the court and apologized for his crime, asked for forgiveness, and expressed his remorse.

This case covered all of the points Gilliam now raises.

In proceeding with sentencing, the trial judge found that two of the

ten possible aggravating factors under Maryland law existed to warrant consideration of the death penalty: The murder had been committed during a robbery, and the murder had been committed during a

kidnapping. Since it found aggravating factors, it turned to and

reviewed the statutorily established mitigating circumstances:

(1) The defendant had not previously

 (i) been found guilty of a crime of violence;

 (ii) entered a plea of guilty or nolo contendere to a

charge of a crime of violence; or

 (iii) had a judgment of probation or stay of entry of

judgment entered on a charge of a crime of violence.

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(2) The victim was a participant in the defendant's conduct or consented to the act which caused the victim's

death.

(3) The defendant acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the

prosecution.

(4) The murder was committed while the capacity of the

defendant to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law

was substantially impaired as a result of mental incapacity, mental disorder or emotional disturbance.

(5) The youthful age of the defendant at the time of the

crime.

(6) The act of the defendant was not the sole proximate

cause of the victim's death.

(7) It is unlikely that the defendant will engage in further

criminal activity that would constitute a continuing

threat to society.

(8) Any other facts which . . . the court specifically sets

forth in writing that it finds as mitigating circumstances in the case.

Md. Code Ann., Art. 27, § 413(g). Maryland law provides that if the

court finds any mitigating factors, it must weigh the mitigating factors

against the aggravating factors:

(1) If the court or jury finds that one or more of these mitigating circumstances exist, it shall determine whether,

by a preponderance of the evidence, the aggravating

circumstances outweigh the mitigating circumstances.

(2) If it finds that the aggravating circumstances outweigh

the mitigating circumstances, the sentence shall be

death.

 14
(3) If it finds that the aggravating circumstances do not

outweigh the mitigating circumstances, a sentence of

death may not be imposed.

Id. § 413(h). Because the sentencing judge found no mitigating factor,

he sentenced Gilliam to death.

The mitigating evidence that Gilliam argues his counsel failed to

present is essentially duplicative of the evidence actually presented by

his counsel at trial, which was squarely rejected as mitigating by the

sentencing judge. The proffered evidence did not change the facts, nor

did it provide a basis for mitigation that the trial court had not considered. We agree with the district court's finding in this case that if the

additional evidence proffered by Gilliam in his habeas petition had

been presented to the sentencing judge at trial, a reasonable judge

would not have found that the evidence mitigated the brutality of Gilliam's cold-blooded act of murder, as Gilliam characterized the act

himself in a letter to counsel. See Gilliam II , 331 Md. at 673-74.

Thus, Gilliam has failed to meet his burden under the second element of the Strickland test. He has failed to show that "but for counsel's [alleged] unprofessional errors, the result of the proceeding

would have been different." Strickland, 466 U.S. at 694. In Plath v.

Moore, 1997 WL 728664 at *6 (4th Cir.), we noted in the capital sentencing context, Strickland's prejudice element requires that the petitioner demonstrate a "reasonable probability" that the alleged error

would have changed the sentence imposed. We conclude that Gilliam

has not met this burden.

V

Finally, Gilliam contends that a conflict of interest undermined his

counsel's ability to develop properly mitigating evidence during his

state proceedings with regard to the alleged domination of petitioner

by the Drummonds, correction of allegedly erroneous factual findings, meaningful post-conviction review, and evidence of the inapplicability of the death penalty to petitioner on the grounds that Gilliam

was not the actual shooter. The conflict of interest Gilliam alleges was

based on his claim that the Maryland Office of the Public Defender

had substantial influence over Gilliam's original trial counsel while

 15
simultaneously representing Gilliam's co-defendant, Kelvin Drummond. In addition, Gilliam claims that since his counsel on his direct

appeal and his first post-conviction proceeding was an assistant public

defender, the conflict of interest persisted during these proceedings.

As the district court observed, Gilliam was represented at trial,

including sentencing, by his own privately-retained counsel. Kelvin

Drummond, who testified at trial that petitioner had shot Christine

Doerfler, was represented by an Assistant Public Defender. On direct

appeal of his conviction, Gilliam was represented by attorneys from

the Public Defender's appellate division, and attorneys from the Public Defender's office prepared and filed Gilliam's first state postconviction petition. But private attorneys were retained thereafter.

These private attorneys amended Gilliam's second post-conviction

petition and represented him at the hearing.

The district court held that Gilliam's conflict claim is procedurally

barred, and we agree. This claim was not presented to the Maryland

courts until the second amended petition for post-conviction relief, a

petition which was dismissed as moot. As we have already noted

above, a state procedural bar prevents federal habeas corpus review

of the defaulted claim, unless the petitioner can demonstrate cause

and prejudice or a fundamental miscarriage of justice. See Mackall,

slip op. at 6. Gilliam has not demonstrated either.

Moreover, while we need not reach the merits of this claim, we

note that Gilliam has pointed to no prejudice if, indeed, a conflict

existed. See Beaver v. Thompson, 93 F.3d 1186, 1192 (4th Cir. 1996),

cert. denied, 117 U.S. 553 (1997); see also Burger v. Kemp, 483 U.S.

776, 785 (1987).

Accordingly, we affirm the judgment of the district court denying

Gilliam's petition for the writ of habeas corpus.

AFFIRMED

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