UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONALD GENE DANIEL,

Petitioner-Appellant,

v. No. 97-6806

STATE OF WEST VIRGINIA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, District Judge.

(CA-96-33-5)

Argued: June 10, 1999

Decided: September 14, 1999

Before WILKINSON, Chief Judge, and

ERVIN and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in

which Chief Judge Wilkinson and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA

SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia, for Appellant. Silas Bent Taylor, Deputy Attorney General, Charleston, West Virginia, for Appellee. ON BRIEF:

Christopher Mizzo, Third Year Law Student, Michael Hadley, Third

Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia,

for Appellant. Darrell V. McGraw, Jr., Attorney General, Dawn E.

Warfield, Deputy Attorney General, Charleston, West Virginia, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Ronald Gene Daniel ("Daniel") appeals the denial of his petition

for a writ of habeas corpus. See 28 U.S.C.A.§ 2254 (West 1994 &

Supp. 1999). A West Virginia jury convicted Daniel of first-degree

murder and malicious wounding. After exhausting his state remedies,

he filed a petition for a writ of habeas corpus in district court, alleging

violations of his right to due process, right to remain silent, and right

to effective assistance of counsel. The district court granted summary

judgment to the State of West Virginia (the "State"). Finding no error,

we affirm.

I.

Daniel was tried in the Circuit Court of Raleigh County, West Virginia, for first-degree murder and malicious wounding. During the

trial, the prosecutor made references to Daniel's invocation of his

Fifth Amendment right to remain silent on four separate occasions.

Daniel's counsel failed to object properly to these references during

trial. The first reference was made in the prosecutor's opening statement:

Dr. Romaro will testify that likewise, as the law enforcement officers will, that although he had been injured and

that although it was obvious that the Defendant had been

drinking, he was not disoriented, in any way, and obviously

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knew what was going on, he knew what he was saying. The

Defendant is turned over to Detective Arthur Bolen, of the

Raleigh County Sheriff's Department, Detective Bureau,

and Detective Bolen, after again advising the Defendant of

his constitutional rights, hears from the Defendant that the

Defendant was scared for his life, and it was self-defense.

So Detective Bolen says[:] "Well, who did this to you, what

did they do to you?" Which you will hear that the Defendant

had no response.

J.A. 54. The second reference was made during the direct examination of a police detective:

Prosecutor: And after you concluded reading the defendant his rights did he tell you his version of

what happened and make a statement?

Detective: He said, "man, this was self-defense, I was

afraid for my life."

Prosecutor: When the defendant said that, did you ask

him a question about that?

Detective: Yes.

Prosecutor: What did you ask the defendant?

Detective: I said, "well, who did this to you," and he

didn't respond. And I said, "well, what did

they do that made you in fear for you[r] life,"

and he didn't respond other than to say, "just

take me to jail."

J.A. at 55-56. The third reference was made during Daniel's crossexamination:

Prosecutor: And, do you recall Detective Bolen saying to

you, "well who put you in fear of your life,

what did they do to you?"

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Daniel: The reason I didn't tell him is because I really

didn't know who had jumped on me, I did not

know.

Prosecutor: And was there a reason that you did not tell

him the whole story about losing consciousness and thinking that these men were attacking you, and feeling in fear of your life, like

a wounded animal?

Daniel: I started telling him close to what happened

but I really didn't remember everything that

happened, and I couldn't tell him, because I

didn't know, and when you tell somebody

that this person did this or this person did that

and it turned out that it didn't, that's, you

know, I would have been lying to the man if

I'd had told him that I knew who jumped on

me, so that's the reason I never said nothing.

Prosecutor: And in fact, Detective Bolen testified your

response was, "just take me to jail," wasn't it?

Daniel: Right, that's the only thing else, there was

nothing else that I could answer to Mr. Bolen,

except that I wanted to see an attorney.

Prosecutor: When exactly had your memory come back,

since you didn't have it on July 9th, 1988,

when you were with the police?

Daniel: Could you repeat that question again?

Prosecutor: When did you remember exactly what happened, about passing out and not remembering, and the guys running towards you, and

all this?

Daniel: That very morning.

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Prosecutor: July 9th, 1988?

Daniel: Yes.

J.A. at 56-57. The fourth and final reference occurred during the prosecutor's closing argument:

So the defendant, in [the town of] Sophia, sure isn't offering any information, he says nothing . . . . Detective Bolen

said the defendant said, "I was in fear of my life." Detective

Bolen said, "why, who put you in fear of your life[?]" What

was the defendant's answer? "Take me to jail."

Now, the last question that I asked the defendant on

cross-examination, where he was claiming that the reason he

didn't feel like talking to the Detective Bureau was because

he was having a memory loss, do you remember? And I

asked him, "when exactly did your memory return," he

made a mistake there, he accidentally told the truth, and that

was July 9th, that very morning.

In fact, I submit to you that the reason the defendant did

not want to stick around and talk to Detective Bolen once

he knew that Detective Bolen [knew] that there was a body

that had been left behind was that his memory was just fine.

He needed a little time to think. That self-defense against

Cecil and Jimmy just wasn't going to fly anymore, now he's

had a little bit more time to think, so now he's modified his

self-defense, and if you don't go with the self-defense that's

in his statement, if they won't play anymore, well then, let's

try an accident.

J.A. at 57-58.

At the conclusion of the trial, the trial judge gave, among others,

the following instruction to the jury:

The Court instructs the jury that the defendant, Ronald

Gene Daniel, stands charged in Count I of the Indictment

with first degree murder.

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Malice is a subjective state of mind in the defendant. It

may be proven by evidence of circumstances surrounding

the crime, such as words or conduct of the defendant, or evidence of ill-will or a source of antagonism between the

defendant and the deceased. Further, malice may be inferred

by the intentional use of a deadly weapon. Also, it may be

inferred from a deliberate cruel act against another, indicating a heart disregarding social duty, fatally bent on mischief.

To prove premeditation it is not necessary that the intention to kill existed for any length of time prior to the killing;

it is only necessary that such intention should spring into the

mind of the accused at the instant of such killing or any time

prior thereto.

"Deliberation" means that the killing is deliberate: deliberation like malice, may be inferred when a deadly weapon

is used.

Therefore, if you find from the evidence beyond a reasonable doubt that this defendant, Ronald Gene Daniel, intentionally, maliciously, deliberately, and with premeditation

shot and killed Walter Dale Morgan, then you may find the

defendant guilty of first degree murder as charged in Count

I of the Indictment.

J.A. at 64. During trial, the only direct evidence of malice presented

was testimony by one of Daniel's acquaintances that the night of the

shooting, Daniel appeared perturbed that the victim had not come to

Daniel's aid during a fight earlier that night.

The jury found Daniel guilty of both charges. He received consecutive sentences of ten years to life imprisonment on the murder conviction and 3-10 years imprisonment on the malicious wounding

conviction.

Following the jury's verdict, Daniel's trial counsel learned that one

of the defense witnesses, Betty Kelly ("Kelly"), had contacted one of

the jurors, Carolyn Dillon ("Dillon"), during the course of the trial.

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Prior to deliberations, Kelly had called Dillon twice one evening and

offered Dillon's son a deal on a used car if she could do what she

could to help Daniel. Instead of investigating the matter or requesting

a hearing, Daniel's trial counsel just reported the incident to the trial

court. After interviewing Dillon off the record, the trial court concluded that no harm had occurred.

Daniel appealed his conviction all the way to the Supreme Court

of Appeals of West Virginia of Appeals, which affirmed on direct

appeal. See State v. Daniel, 391 S.E.2d 90, 100 (W. Va. 1990)

("Daniel I"). Daniel then pursued post-conviction state habeas corpus

remedies in the Circuit Court of Raleigh County. He received new

postconviction counsel and was granted an omnibus habeas corpus

hearing.

At this omnibus habeas corpus hearing, Dillon, the juror who

claimed to have been contacted by Kelly, testified that the night

before jury deliberations, Kelly called her twice in an attempt to elicit

help for Daniel. The next day, after the jury had deliberated and

reached a verdict, Dillon informed the other members of the jury

about these conversations. Dillon then learned that Kelly had also

contacted another member of the jury. Dillon never informed the trial

court about this second juror. When asked why, she answered because

the trial court had never inquired about the other juror. Dillon further

testified that she felt "set-up" by Kelly and Daniel. She knew that

Kelly and Daniel were romantically involved and"felt like they had

got together and said, hey, we'll just use her."

The Circuit Court denied Daniel habeas relief. The Supreme Court

of Appeals of West Virginia affirmed. See State ex rel. Daniel v.

Legursky, 465 S.E.2d 416, 431 (W. Va. 1995) ("Daniel II").

Having exhausted all of his state remedies, Daniel filed the present

petition for a writ of habeas corpus in the United States District Court

for the Southern District of West Virginia. The petition was initially

referred to a magistrate judge. The magistrate judge recommended

that relief be granted on three of the eight claims raised in the petition.

Both parties filed objections to the magistrate judge's recommendations. After reviewing these objections, but without conducting a

hearing, the district court sustained the State's objections and over-

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ruled Daniel's objections, granting summary judgment to the State

and denying Daniel's petition. Daniel filed a motion for a certificate

of appealability, which the district court granted. He then appealed to

this Court.

II.

Daniel raises four questions on appeal. First, did the jury instructions allow the jury to make an unwarranted permissive inference of

malice and deliberation from the use of a deadly weapon, thus violating Daniel's right to due process? Second, did the prosecutor's references to Daniel's silence during police questioning violate his right

to remain silent? Third, did the decision of Daniel's trial counsel not

to request a hearing concerning alleged juror misconduct violate Daniel's right to effective assistance of counsel? Fourth, did the cumulative effect of all of these alleged constitutional errors deprive Daniel

of a fair trial?

A.

The first issue is whether the jury instructions created a permissive

inference that violated Daniel's constitutional right to due process. A

permissive inference contains both a basic fact and an elemental fact.

The basic fact is what the prosecution must first prove to allow the

permissive inference. The elemental fact is a fact critical to proving

an element of the charged crime. When the prosecution proves the

basic fact contained in the permissive inference, the jury is permitted,

but not required, to infer proof of the elemental fact. See County

Court of Ulster County, New York v. Allen, 442 U.S. 140, 157 (1979).

"Because this permissive presumption leaves the[jury] free to credit

or reject the inference and does not shift the burden of proof, it affects

the application of the `beyond the reasonable doubt' standard only if,

under the facts of the case, there is no rational way the [jury] could

make the connection permitted by the inference." Id.

First, we must determine whether the challenged jury instruction

contained a permissive inference. The challenged jury instruction

stated that malice "may be inferred by the intentional use of a deadly

weapon." This instruction allowed an inference of"malice," an elemental fact of first-degree murder, from the proof of the basic fact,

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"the intentional use of a deadly weapon." Thus, the instruction clearly

contained a permissive inference.

Second, we must determine whether this permissive inference is

constitutional. A permissive inference is constitutional "so long as the

presumed fact is rationally connected to a proven fact." Davis v.

Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985). The question is

whether the inferred conclusion is one that "reason and common

sense justify in light of the proven facts before the jury." United

States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). We review the

constitutionality of a jury instruction containing a permissive inference on a case-by-case basis. Allen, 442 U.S. at 157.

Daniel argued that given the dearth of evidence of malice in this

case the inference of malice contained in the challenged jury instruction was not rationally connected to any proven facts. In support,

Daniel cited the Supreme Court of Appeals of West Virginia's comment that "the only evidence tending to show premeditation and

deliberation" was the testimony of Daniel's acquaintance that, "prior

to the shooting, the petitioner appeared perturbed that [the victim had]

failed to help him in the fight . . . ." Daniel II, 465 S.E.2d at 423. Nevertheless, the Supreme Court of Appeals of West Virginia upheld the

challenged jury instruction as constitutional, reasoning that

[i]t makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have

thought there was some reasonable doubt. To the contrary,

the question . . . is whether any rational jury could on the

evidence presented think the defendant premeditated and

intentionally killed the victim. We do not find the evidence

so weak as to render the verdict irrational.

Id. at 423-24 (citations omitted).

We concur with the holding of the Supreme Court of Appeals of

West Virginia. While the direct evidence may not have been overwhelming, there was sufficient circumstantial evidence from which a

rational jury may have concluded that Daniel acted with malice when

he intentionally used a deadly weapon. We therefore hold that the per-

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missive inference of malice in the challenged jury instruction was

constitutional.

B.

The second issue is whether the prosecutor's references during trial

to Daniel's silence during police questioning violated his right to

remain silent.

The threshold question is whether this claim is procedurally barred

by an independent and adequate state ground. Since Daniel's counsel

failed to object properly to the prosecutor's references to Daniel's

silence, the State argues that this issue was procedurally defaulted and

thereby barred from federal habeas review. The State strictly enforces

a "raise or waive" procedural rule in its courts that requires trial counsel to object contemporaneously to a possible error or lose the ability

to raise that error on appeal. State v. Miller , 476 S.E.2d 535, 544 (W.

Va. 1996). This rule is founded upon the State's interest in furthering

"fairness, judicial economy, and practical wisdom" in its state courts.

Id.

We have already recognized that West Virginia's contemporaneous

objection rule "constitutes an `adequate and independent state ground'

upon which federal review may be precluded." Meadows v. Legursky,

904 F.2d 903, 906 (4th Cir. 1990), superseded on other grounds by

Trest v. Cain, 118 S.Ct. 478, 480 (1997). The question, therefore, is

not whether there is an independent and adequate state ground barring

our review -- for there clearly is such a ground-- but rather, whether

the Supreme Court of Appeals of West Virginia relied upon this independent and adequate state ground when ruling on this issue. See

Skipper v. French, 130 F.3d 603, 609 (4th Cir. 1997) ("[I]t is not sufficient that the state court could have applied a procedural default

under state law; it must actually have done so.").

Although Daniel properly raised this issue before the Supreme

Court of Appeals of West Virginia, it is unclear whether the Supreme

Court of Appeals of West Virginia addressed it on the merits or concluded that it was procedurally barred. In Skipper v. French, this

Court outlined an analytical framework to follow when attempting to

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determine from ambiguous evidence whether or not a state court

addressed the merits of a federal constitutional claim:

In analyzing the state court decision . . ., we look first to its

text -- which may be dispositive. If it is not . .. we may

look to the procedural posture of the decision, including the

motion papers before the court . . . and, if available, any factually relevant precedent.

130 F.3d at 611 (citations omitted).

Unfortunately, even after such analysis, the basis of the Supreme

Court of Appeals of West Virginia's ruling remains ambiguous. All

the Supreme Court of Appeals of West Virginia stated in its published

opinion was, "We find his remaining assignments of error are without

merit." Daniel II, 465 S.E.2d at 420. Our examination of the motion

papers and analogous precedent was equally inconclusive. Thus, we

decline to find this issue procedurally barred and address its merits.

Daniel argues that the prosecutor's four references to his silence

during trial violated his right to remain silent. Relying on Doyle v.

Ohio, 426 U.S. 610, 619 (1976), he argues that he is entitled to a new

trial. We disagree.

The United States Supreme Court has long distinguished between

the use of silence to prove a defendant's guilt and the use of silence

to impeach a defendant's credibility. See Anderson v. Charles, 447

U.S. 404, 408 (1980) ("But Doyle does not apply to crossexamination that merely inquires into prior inconsistent statements.

Such questioning makes no unfair use of silence because a defendant

who voluntarily speaks . . . has not been induced to remain silent.").

Daniel is correct that the prosecution is forbidden from using his

silence as substantive evidence of his guilt. See Doyle, 426 U.S. at

619. That is not, however, what happened in this case. After reviewing the record, we conclude that the prosecution commented on Daniel's silence only in an effort to impeach his credibility. The

prosecution merely sought to demonstrate the discrepancy between

Daniel's original explanation -- that he acted in self-defense -- and

his subsequent explanation given at trial -- that the shooting was an

accident. Daniel opened the door to such impeachment when he exer-

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cised his right to testify. United States ex rel. Savory v. Lane, 832

F.2d 1011, 1017-18 (7th Cir. 1987) ("The cases which have allowed

impeachment by silence rely on the fact that the defendant opens himself to impeachment by taking the stand."). We therefore conclude

that the prosecutor's comments on Daniel's silence were proper and

within constitutional bounds.

C.

The third issue is whether the decision of Daniel's trial counsel not

to request a hearing concerning the alleged jury tampering constituted

ineffective assistance of counsel. To establish ineffective assistance of

counsel, Daniel must satisfy the two-pronged test of Strickland v.

Washington: (1) was Daniel's representation below an objective standard of reasonableness, and, if so, (2) is there a reasonable probability

that, but for the unprofessional errors of Daniel's trial counsel, Daniel's trial would have had a different result? 466 U.S. 668, 687 (1984).

We review this issue de novo. See Smith v. Moore, 137 F.3d 808, 817

(4th Cir. 1998).

First, did the conduct of Daniel's trial counsel fall below an objective standard of reasonableness? After thoroughly examining the trial

record and subsequent testimony at the habeas hearing, the Supreme

Court of Appeals of West Virginia commented that the failure of

Daniel's counsel to request a hearing was "incomprehensible." Daniel

II, 465 S.E.2d at 425. The Supreme Court of Appeals of West Virginia could "imagine no scenario excusing this failure" and concluded

that it was "not objectively reasonable." Id. We agree with the

Supreme Court of Appeals of West Virginia that the conduct of Daniel's trial counsel fell below an objective standard of reasonableness.

Since we conclude that Daniel has satisfied the first prong of the

Strickland test, we now address the second prong.

Second, we agree with the Supreme Court of Appeals of West Virginia, the district court, and the magistrate judge that Daniel failed to

show that any actual prejudice resulted from counsel's unprofessional

conduct. Daniel argues that because his ineffective assistance of counsel claim involves jury tampering, he is entitled to a presumption of

prejudice. See Remmer v. United States, 347 U.S. 227, 229 (1954);

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir.

1986).

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We believe that Daniel is confusing his current claim -- that his

trial counsel was ineffective for failing to request a Remmer hearing

-- with one of his earlier claims -- that he was entitled to a mistrial

because of jury tampering. Daniel already made (and lost) this same

argument for presumptive prejudice in front of the Supreme Court of

Appeals of West Virginia with regard to the earlier mistrial claim. See

Daniel I, 391 S.E.2d at 93-96. Because Daniel never raised this mistrial claim in federal court, this argument is barred and the Strickland

standard of actual prejudice controls.

Moreover, Daniel has already received the only remedy he would

have been entitled to had his trial counsel been effective, namely a

hearing on the alleged jury tampering. Daniel responds that the state

habeas hearing was deficient because no factual findings were made

to rebut the Remmer presumption of prejudice. As explained above,

however, since Daniel never raised the mistrial issue before this

Court, he is not entitled to such factual findings. Any legal inadequacies of the hearing would only have been relevant to the question of

a mistrial and not to the question of trial counsel's effectiveness.

Finding no actual prejudice, we reject Daniel's ineffective assistance

of counsel claim.

D.

The fourth issue is whether the "cumulative effect" doctrine applies

here. Cumulative effect analysis only applies where there are two or

more actual errors, not to the cumulative effect of non-errors. See

Hoxsie v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997). Since Daniel

has not shown that the district court committed any actual error, we

are not persuaded that "the entire trial was so fundamentally unfair

that [Daniel's] due process rights were violated." Id.

III.

Finding no error in the district court's denial of Daniel's petition

for a writ of habeas corpus, we affirm.

AFFIRMED

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