UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARLON DEWAYNE WILLIAMS,
Petitioner-Appellant,

v.
                                                                    No. 98-28
RONALD ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-97-769-3)

Argued: March 1, 1999

Decided: April 28, 1999

Before WILKINS and TRAXLER, Circuit Judges, and
FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Traxler and Judge Faber joined.

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COUNSEL

ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. Katherine P. Baldwin,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee. ON BRIEF: Melanie A.
Moore, GERALD T. ZERKIN & ASSOCIATES, Richmond, Vir-
ginia; Robert E. Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Richmond, Virginia, for Appellant. Mark J.
Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

WILKINS, Circuit Judge:

Marlon DeWayne Williams appeals an order of the district court
denying his petition for a writ of habeas corpus, 1 which challenged his
Virginia conviction and death sentence for the murder-for-hire of
Helen Bedsole. See 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998).2
Finding no error, we affirm.
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1 Williams named Ronald Angelone, Director of the Virginia Depart-
ment of Corrections, as Respondent in his petition. For ease of reference,
we will refer to Angelone as "the Commonwealth" throughout this opin-
ion.

2 Because Williams' petition for a writ of habeas corpus was filed on
March 12, 1998, after the April 24, 1996 enactment of the Antiterrorism
and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-
132, 110 Stat. 1214, amendments to 28 U.S.C.A. § 2254 effected by
§ 104 of the AEDPA govern our resolution of this appeal. See Green v.
French, 143 F.3d 865, 868 (4th Cir. 1998), cert. denied, 119 S. Ct. 844
(1999). Although Williams' state habeas petition was filed and decided
after July 1, 1992--the date that Virginia purports to have satisfied the
opt-in provisions--the Commonwealth does not argue that the provisions
of § 107 of the AEDPA (including the more stringent procedural default
provisions) apply. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.
1996) (observing that Virginia purports to have satisfied the opt-in provi-
sions of § 107 as of July 1, 1992).

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I.

On November 9, 1993, Williams killed Bedsole by shooting her
twice in the head at close range. He was paid $4,000 for the murder
by Bedsole's husband, to whom Williams previously had sold
cocaine. Williams subsequently pled guilty to capital murder.

The Commonwealth sought the death penalty on the basis that Wil-
liams posed a future danger to society. See Va. Code Ann. § 19.2-
264.2(1) (Michie 1995). During a sentencing hearing before a trial
judge, prosecutors introduced evidence of Williams' violent relation-
ship with Tanesha Alston, a former girlfriend. Alston testified that
Williams initially was good to her and that she began living with him
in 1992. In 1993, however, Williams began to abuse Alston physi-
cally. On one occasion, Williams pulled her from her automobile and
beat her until she lost consciousness and required hospitalization.
Other testimony established that shortly after this vicious attack, Wil-
liams told a friend that he intended to murder members of Alston's
family with the hope that Alston would become so distraught that she
would commit suicide. Although he did not carry out this plan, Wil-
liams did break into the home of Alston's grandmother and attempt
to murder her by smothering her with a pillow and cutting her throat
with a knife.

In mitigation, Williams presented evidence of his troubled upbring-
ing. Williams' aunt, Jean Brooks, testified that Williams' mother left
him in Brooks' care at a very early age but abruptly reappeared and
took custody of Williams when he was five. Brooks stated that she
became aware that Williams was being abused by his stepfather at a
family reunion when Williams was ten years old and that she agreed
to take custody of Williams several years later after social services
removed him from his mother's home. This arrangement was short-
lived, however, and Williams returned to his mother, after which
Brooks had only limited contact with him.

Some details of the abuse Williams suffered as a child were devel-
oped through the testimony of Kim Johnston, the probation officer
who prepared Williams' presentence report. Johnston testified that her
investigation revealed that Williams had been severely abused by his
mother and stepfather throughout his childhood, requiring the inter-

                    3
vention of various social service agencies. Johnston also recounted
Williams' history of hospitalization for mental and emotional distur-
bances and authenticated hospital records, which were then admitted
into evidence.

After carefully considering all of the evidence, the trial judge
elected to impose the death penalty. Williams challenged his sentence
in the Supreme Court of Virginia, arguing that the sentence was
excessive and disproportionate to the sentences imposed in similar
cases. The Supreme Court of Virginia affirmed, and the Supreme
Court denied certiorari. See Williams v. Commonwealth, 472 S.E.2d
50, 54 (Va.), cert. denied, 117 S. Ct. 493 (1996). Williams subse-
quently filed a petition for habeas corpus relief in the Supreme Court
of Virginia, see Va. Code Ann. § 8.01-654(C)(1) (Michie Supp.
1998), raising numerous issues. As pertinent here, Williams alleged
that trial counsel were ineffective in two respects. First, Williams
claimed that counsel failed to develop additional mitigating evidence
concerning the abuse he suffered as a child. Second, Williams main-
tained that counsel failed to obtain expert psychological testimony
and to explain to him the importance of such testimony. Williams also
claimed that he was denied the assistance of appellate counsel by his
attorneys' failure either to file an appeal or to comply with the
requirements of Anders v. California, 386 U.S. 738 (1967). Williams
moved for the appointment of a psychological expert.

In support of its opposition to Williams' habeas petition, the Com-
monwealth submitted an affidavit prepared by one of Williams' trial
attorneys, David Bouchard. Bouchard stated that prior to Williams'
trial, counsel had obtained the appointment of a clinical psychologist,
Dr. Weare Zwemer, to evaluate Williams in order to develop mitiga-
tion evidence for sentencing. Williams refused to cooperate with Dr.
Zwemer, stating that he did not want the sentencing proceeding to
become "a freak show." J.A. 223 (internal quotation marks omitted).
Nevertheless, Dr. Zwemer reviewed Williams' records and observed
Williams in conference with his attorneys. Based on this information,
Dr. Zwemer informed Williams' counsel that, if asked to speculate,
he would diagnose Williams with antisocial personality disorder. Dr.
Zwemer further informed counsel that he would testify that this disor-
der is not generally amenable to treatment and that he would be
unable to "provide ... reassurance regarding the defendant's future

                    4
dangerousness." J.A. 233. Because of its aggravating nature, counsel
elected not to submit Dr. Zwemer's report into evidence or call him
to testify.

The Supreme Court of Virginia dismissed the petition without
directing that an evidentiary hearing be held and denied Williams'
motion for the appointment of an expert. The Supreme Court again
denied certiorari. See Williams v. Angelone, 118 S. Ct. 454 (1997).
Thereafter, Williams moved the district court for the appointment of
an expert to assist in the preparation of a federal habeas corpus peti-
tion. The district court initially granted the motion but subsequently
vacated the order. During the time that the order was effective, how-
ever, Williams was evaluated by Dr. Leigh Hagan. Dr. Hagan later
submitted an affidavit stating that Williams suffered from attachment
disorder. Dr. Hagan further opined that attachment disorder might
respond to treatment and that Williams likely would adapt well to a
structured prison environment.

Williams then filed a petition for a writ of habeas corpus in district
court and requested an evidentiary hearing. In support of his claim
that trial counsel were ineffective for failing to obtain expert psycho-
logical testimony in mitigation, Williams submitted Dr. Hagan's affi-
davit and his own. Williams asserted in his affidavit that his attorneys
failed to explain adequately the purpose of expert mitigation testi-
mony; according to Williams, he "thought the point was to have [Dr.
Zwemer] say that [he] was insane." J.A. 240. Williams further
claimed that if he had understood the true purpose of the examination,
he would have cooperated. The district court refused Williams'
request for an evidentiary hearing, dismissed the petition, and granted
Williams' application for a certificate of appealability.

II.

Williams first claims that trial counsel were ineffective for failing
to obtain a mitigating diagnosis from a psychological expert. More
specifically, Williams argues that counsel should have recognized that
Dr. Zwemer's tentative diagnosis of antisocial personality disorder
was incorrect and that a proper evaluation would lead to a correct
diagnosis of attachment disorder. He further claims that had counsel
adequately explained to him the need for expert mitigating testimony,

                    5
he would have allowed himself to be evaluated. The district court
concluded that this claim was defaulted because it had not previously
been presented to the Supreme Court of Virginia and would be proce-
durally barred from consideration on the merits if presented in the
future. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Never-
theless, the court considered and denied Williams' request for an evi-
dentiary hearing on the claim, reasoning that Williams could not
satisfy the requirements of 28 U.S.C.A. § 2254(e)(2). Williams now
challenges the ruling holding his claim to be defaulted and the denial
of his request for an evidentiary hearing.

We conclude that the district court incorrectly determined that Wil-
liams failed to present to the Supreme Court of Virginia his claim that
trial counsel were ineffective for failing to obtain a mitigating diagno-
sis from a psychological expert. Williams' state habeas petition
alleged that "[c]ounsel failed adequately to explain the role of the
expert in the presentation of mitigating evidence to Williams, failed
to utilize an expert in the development of a theory of mitigation and
mitigation investigation, and failed to present expert testimony to
underscore a theory of mitigation." J.A. 145. These assertions are suf-
ficient to constitute a fair presentation of the claim. See Matthews v.
Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (explaining that a claim is
exhausted when its substance is fairly presented to the highest state
court).

We do find, however, that the district court correctly concluded
that Williams was not entitled to an evidentiary hearing. Section
2254(e)(2) limits the authority of a federal district court to grant an
evidentiary hearing to a habeas petitioner who has failed to develop
the factual basis supporting a claim in state court. Such a petitioner
must demonstrate that

          (A) the claim relies on--

           (i) a new rule of constitutional law, made retroactive to
          cases on collateral review by the Supreme Court, that was
          previously unavailable; or

          (ii) a factual predicate that could not have been
          previously discovered through the exercise of due
          diligence; and

                     6
           (B) the facts underlying the claim would be sufficient to
          establish by clear and convincing evidence that but for con-
          stitutional error, no reasonable factfinder would have found
          the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2). If the petitioner makes this initial showing,
the district court must then consider whether a hearing is "proper or
necessary." Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.), cert.
denied, 119 S. Ct. 587 (1998).

Williams contends that he did not fail to develop the factual basis
for his claim in state court because his requests for expert assistance
and an evidentiary hearing were denied; therefore,§ 2254(e)(2) does
not apply. See id. at 337-38. Assuming that he is correct, Williams
nevertheless is not entitled to an evidentiary hearing. In order to
establish his right to an evidentiary hearing, Williams must "allege[ ]
additional facts that, if true, would entitle him to relief." Beaver v.
Thompson, 93 F.3d 1186, 1190 (4th Cir. 1996). And, because Wil-
liams did not present evidence supporting his allegations in state
court, an evidentiary hearing is not permitted unless he can show
cause and prejudice or a fundamental miscarriage of justice to excuse
this shortcoming. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12
(1992).

Williams can demonstrate neither cause nor prejudice.3 Williams
cannot establish cause because his ineffective assistance of counsel
claim rests in part on his allegation that counsel failed to explain the
need for a psychiatric evaluation, but nothing prevented him from
submitting his affidavit setting forth his assertion that counsel failed
to so inform him to the state habeas court.4 Further, even if Williams
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3 Williams does not contend that his attorneys' ineffectiveness resulted
in a fundamental miscarriage of justice, i.e. , that he was sentenced to
death even though he is actually innocent of the death penalty. See
Sawyer v. Whitley, 505 U.S. 333, 344-45 (1992).
4 At oral argument, Williams maintained that his ineffective assistance
of counsel claim does not depend on the failure of counsel to explain the
importance of expert mitigation testimony. Without this allegation, how-
ever, Williams' claim at best amounts to an assertion that counsel should

                    7
could establish cause, he could not demonstrate actual prejudice. The
prejudice required under Keeney is the same as that required to dem-
onstrate ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 694 (1984). See Correll v. Stewart, 137
F.3d 1404, 1414 (9th Cir.), cert. denied, 119 S. Ct. 450 and 119 S. Ct.
465 (1998). Accordingly, Williams must demonstrate that there is a
reasonable probability--i.e., one sufficient to undermine confidence
in the outcome--that the result of the proceeding would have been
different. See Strickland, 466 U.S. at 694. This he cannot do. At best,
Dr. Hagan's affidavit establishes that Williams suffers from attach-
ment disorder, that this problem may improve with"treatment and
passage of time," and that Williams likely will adapt to a structured
prison environment. J.A. 244. Although this evidence certainly is mit-
igating, we conclude that there is no reasonable probability that the
sentencing judge would have been moved by it to impose a life sen-
tence. The testimony at the sentencing hearing indicated that Williams
had a long history of violent behavior that included convictions for
assault and malicious wounding. And, while in prison awaiting trial
for the instant offense, Williams assaulted another inmate. Finally,
Williams' vicious attacks on Alston (who loved Williams and
attempted to be a stabilizing influence in his life) and Alston's grand-
mother, and his plans to murder the rest of Alston's family, further
served to establish that he posed a significant danger to society. The
district court therefore did not err in denying Williams' request for an
evidentiary hearing.5
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have obtained another expert after Dr. Zwemer rendered an unfavorable
opinion. Such a claim would fail because we have held that the Constitu-
tion does not require attorneys to "shop around" for more favorable
expert testimony. Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.
1992).
5 Williams also maintains that the district court erred in refusing to
grant an evidentiary hearing on his more general claim that counsel were
ineffective for failing to present additional mitigating evidence regarding
the abuse and abandonment he suffered as a child and the mental illness
that resulted. Because Williams' claim is without merit, no evidentiary
hearing was required. See Cardwell, 152 F.3d at 338.

In order to succeed on his claim that counsel were ineffective, Wil-
liams must establish that his attorneys' "representation fell below an

                    8
III.

Next, Williams contends that his due process rights were violated
when his attorneys, instead of briefing any issues on appeal, submit-
ted argument concerning only factors that the Supreme Court of Vir-
ginia was required to consider as part of its mandatory review of
Williams' sentence. Williams contends that this failure violates
Anders v. California, 386 U.S. 738 (1967).

Anders outlines the circumstances under which an appellate court
may grant appointed counsel's motion to withdraw from representa-
tion of a defendant who desires to appeal when counsel believes an
appeal would be frivolous. The following requirements must be met:
Counsel, having determined that an appeal would be frivolous, must
submit to his client and the court a brief addressing all issues that
arguably might give rise to an appeal; the defendant must be given an
opportunity to raise any issues of his choosing; and the court must
determine, after a full review of the record, that an appeal would be
wholly frivolous. See id. at 744. The Anders brief serves the twin
functions of "provid[ing] the appellate courts with a basis for deter-
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objective standard of reasonableness" and "that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 688, 694.
Here, even if Williams' attorneys were deficient for failing to present
additional evidence of the abuse suffered by Williams and his resulting
psychological problems, there is no prejudice. Although evidence that a
defendant suffers from a mental impairment or has a history of being
abused as a child may diminish his blameworthiness for his crime, this
evidence is a double-edged sword that a sentencer could well find to be
aggravating rather than mitigating. See Howard v. Moore, 131 F.3d 399,
421 (4th Cir. 1997) (en banc), cert. denied, 119 S. Ct. 108 (1998); Nobles
v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (observing that evidence
of "childhood abuse and emotional problems," while potentially mitigat-
ing, also "could have strengthened the prosecution's argument that [the
defendant] posed a continuing threat to society"), cert. denied, 118 S. Ct.
1845 (1998). Therefore, we cannot conclude that a reasonable probability
exists that the sentencing judge, presented with additional evidence of
the abuse and abandonment suffered by Williams as a child, would have
declined to impose the death penalty.

                    9
mining whether appointed counsel have fully performed their duty to
support their clients' appeals to the best of their ability" and aiding
the courts "in making the critical determination whether the appeal is
indeed so frivolous that counsel should be permitted to withdraw."
McCoy v. Court of App., 486 U.S. 429, 439 (1988). Here, Williams'
counsel did not move to withdraw, but in fact submitted a brief
addressing what counsel considered their strongest position; counsel
also presented an oral argument on Williams' behalf. Therefore, Wil-
liams' characterization of this claim as presenting an Anders issue is
incorrect, and it cannot be said that the state-court decision to deny
relief on this claim was unreasonable. See 28 U.S.C.A. § 2254(d)(1).

IV.

For the reasons set forth above, we conclude that all of Williams'
claims lack merit. Accordingly, we affirm the denial of habeas relief
by the district court.

AFFIRMED

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