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                               UNPUBLISHED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 Alexandria.
                 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Dismissed in part and affirmed in part by unpublished per curiam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.

____________________________________________________________
                               COUNSEL

ARGUED: Michele Jill Brace, Washington, D.C., for Appellant.
Robert Quentin Harris, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Barbara L. Hartung, Richmond, Virginia; Lara A. Englund,
Peter B. Rutledge, Samuel Broderick-Sokol, Anne Harkavy, Eric J.
Hougen, Mason Kalfus, WILMER, CUTLER & PICKERING, Wash-
ington, D.C.; David P. Donovan, WILMER, CUTLER & PICKER-
ING, Tysons Corner, Virginia, for Appellant. Jerry W. Kilgore,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

____________________________________________________________

                               OPINION

PER CURIAM:

    Petitioner Darick Demorris Walker was convicted by a Virginia
state court jury of capital murder for the killings of Stanley Beale and
Clarence Threat, use of firearm in the commission of a felony, and
two counts of burglary. He was sentenced to death on the capital mur-
der count and to prison terms on the 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 dis-
trict court dismissed Walker's federal habeas petition and declined to
grant a Certificate of Appealability (COA).

    Walker now seeks a COA to bring an appeal of the district court's
dismissal. Specifically, he asserts that he has made the required sub-
stantial showing that his Sixth Amendment right to counsel was vio-
lated at the guilt phase of his trial when his counsel failed to challenge
his single trial for two murders, that his due process rights were vio-
lated when the Commonwealth failed to timely disclose Brady materi-
als, 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 evidence. Because reasonable jurists
could debate the district court's assessment of the first two of these
claims (the right to counsel at the guilt phase of trial claim and the
Brady claim) 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 assess-

                                   2
ment 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 the University Terrace 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 testi-
fied that she knew Walker as "Todd" 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 fourteen-
year-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 that 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 someone knocking but did not see any-
____________________________________________________________
   1
     These facts are derived from the statement of facts in the Supreme
Court of Virginia's published opinion affirming Walker's conviction on
direct appeal. See Walker v. Commonwealth, 515 S.E.2d 565, 568-69
(Va. 1999).

                                   3
one 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 (Michie 1996). On August 31 and Sep-
tember 1, 1998, Walker was tried before a jury in the Circuit Court
for the City of Richmond and found guilty of all charges. He was sen-
tenced to death for the capital murder 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 Walk-
er'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 writ 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 dismissed Walker's petition on July 26,
2002. On September 4, 2002, the district court denied Walker's
Motion to Alter or Amend Judgment and declined to grant a Certifi-
cate of Appealability (COA). Walker now seeks to appeal.

                                  4
                                   II.

   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 con-
sider the merits of Walker's claims 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 constitutional right." 28 U.S.C.A. § 2253(c)(2).
"Under the controlling standard, a petitioner must `sho[w] that rea-
sonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that
the issues presented were "adequate to deserve encouragement to pro-
ceed further."'" Miller-El, 123 S. Ct. at 1039 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000), which in turn was quoting Bare-
foot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). "A prisoner seeking a
____________________________________________________________
    2
      We note that our consideration of Walker's COA application after the
issues of this case have already been fully briefed and argued is proce-
durally misaligned with the appropriate 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). Nonethe-
less, 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 con-
sideration 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 debatable 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." Miller-
El, 123 S. Ct. at 1040.

                                   5
COA 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 issuance of a COA, that some jurists
would grant the petition for habeas corpus." Id. at 1040 (internal quo-
tation marks and citation omitted). "We look to the District Court's
application of AEDPA to petitioner's constitutional claims and ask
whether that resolution was debatable amongst jurists of reason." Id.
at 1039. "Where a district court has rejected [a petitioner's] constitu-
tional 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 under-
lying 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 three issues that were
addressed by the district court. First, Walker argues that the state
court's conclusion that his trial counsel did not render ineffective
assistance by failing to challenge his 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 Brady claim 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 the default and by concluding that the
____________________________________________________________
    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 con-
stitutional right, the certificate will issue."

                                   6
state court's resolution of the remainder of his Brady claim was not
an unreasonable application of federal law. A COA is also issued on
this claim because Judge Gregory finds that reasonable jurists could
debate whether the district court should have resolved this claim dif-
ferently. 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 Evalua-
tion Program, Walker's court-appointed mental health expert, and
failed to discover Walker's brain dysfunction. The state court, apply-
ing 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 defi-
cient . . . [and] that the deficient performance prejudiced the
defense."), concluded that Walker's claim failed to satisfy the perfor-
mance 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 Walker presented no evidence to the dis-
trict court to rebut this conclusion. The state court also rejected Walk-
er's claim that his counsel was ineffective by failing to further
investigate Walker's organic brain damage and concluded that coun-
sel'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 district court determined that the state
court's decision was not an unreasonable application of Strickland
because, as there is only one reference to possible organic brain dam-
age in Walker's school records, Walker's counsel was justified in pur-
suing and preparing an alternative 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 expert was reasonable because after he
had diagnosed Walker as a sociopath, the mental health expert was
removed from the defense witness list. Our threshold review of Walk-

                                   7
er'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 premedi-
tated killing of more than one person within a three-year period." Va.
Code Ann. § 18.2-31.1(8). He was tried in a single trial before a sin-
gle jury. Walker asserts that his conviction is invalid because his trial
counsel rendered ineffective assistance by failing to challenge the
constitutionality of § 18.2-31.1(8), move for separate trials on the two
murders, or request a jury instruction that evidence of one murder
could not be considered in determining 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 performance prejudiced the defense." Strick-
land, 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 "resulted
in a decision that was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal 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 appli-
cation" clause, a federal habeas court 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 `unreason-
able 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

                                    8
the writ [under the unreasonable application clause] simply because
that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law errone-
ously 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 analyzed 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 can-
not 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 court's determination under the perfor-
mance prong of Strickland.

   To establish prejudice, a defendant "must show that there is a rea-
sonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466
U.S. at 694. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. It was not objectively
unreasonable for the state court to conclude that there was no reason-
able 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) constitutes a misjoinder of different offenses. The
court explained that murders charged under § 18.2-31.1(8) are con-
nected by the "fact that the capital murder and the predicate murder
or murders occur within a three-year period." Id. at 226. This "con-
nection [is] similar to the link the General Assembly has established
between capital murders and predicate 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 premedi-
tated killing of any person in the commission of, or subsequent to,
rape or attempted rape" constitutes a capital murder offense. The
Supreme Court of Virginia thus concluded in Smith that "the Com-
monwealth 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

                                    9
year 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 fed-
eral law.4 Walker, therefore, has failed to show that there is a reason-
able 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 con-
clude that there was no reasonable probability that moving for sepa-
rate trials or requesting an additional 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 evidence had been properly segregated.
See Zafiro v. United States, 506 U.S. 534, 539 (1993) (explaining that
the risk of joining defendants is that 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 the 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 acquittal 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 district court noted, "the joint trial
was not unduly lengthy or complex and the evidence with respect to
each murder was distinct and easily compartmentalized." (J.A. at
____________________________________________________________
    4
      Under the precedent of the Supreme Court, a misjoinder "rise[s] to the
level of a constitutional violation only 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.

                                  10
965.) 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 murder. 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 instructions 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 has
         proved beyond a reasonable doubt each of the above ele-
         ments of the offense as charged, then you shall find the
         defendant guilty of capital murder . . . . If you find from the
         evidence that the Commonwealth has proved beyond a rea-
         sonable doubt that the defendant killed Clarence Threat, and
         that the killing was willful, deliberate and premeditated, but
         fail to find that the defendant killed Stanley Roger Beale,
         then you shall find the defendant guilty of first degree mur-
         der . . . . If you find from the evidence that the Common-
         wealth has proved beyond a reasonable doubt that the
         defendant killed Stanley Roger Beale, and that the killing
         was willful, deliberate and premeditated, but fail to find that
         the defendant killed Clarence Threat, then you shall find the
         defendant guilty of first degree murder . . . . Ladies and gen-
         tleman of the jury, it's simple. If you believe he killed both
         in a three year period that would meet the elements of capi-
         tal murder. But, you might believe 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 evidence for each murder was easily
distinguishable and the jury was instructed to consider 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 request 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 unrea-
sonable application of federal law.

                                  11
                                  IV.

    Walker argues that the Commonwealth failed to disclose exculpa-
tory evidence that would have impeached the trial testimony of three
of its key witnesses: Bianca Taylor, Tameria Patterson, and Chris
Miller. The state court concluded that Walker's Brady claim regard-
ing Bianca was procedurally barred and found Walker's Brady claims
regarding Patterson and Miller without merit. (J.A. at 348-49.) We
will discuss the state court's application of the procedural bar and
determination on the merits in turn.

                                  A.

    Bianca testified at trial that she saw the shooter enter the house,
yell at her father, and then shoot her father. Walker contends that the
Commonwealth suppressed the following evidence that indicates that
Bianca did not see the shooter: the Supplementary Offense Report of
Officer Ernst (J.A. at 537), Supplementary Offense Report of Detec-
tive 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 conviction by habeas corpus." 205 S.E.2d
at 682. The district court refused to address the merits of this claim,
concluding that this state procedural rule was independent and ade-
quate 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 that was procedurally defaulted under
an `independent and adequate' state 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) (alter-
ation 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 does not "depend[ ] on a federal

                                  12
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985)
(alteration in original). "We have repeatedly recognized that the pro-
cedural 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) (cit-
ing cases). Walker does not dispute that the state court applied an ade-
quate and independent procedural rule 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 proceed-
ing 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, specifically its suppression of the
documents listed above until eight months after direct appeal, pre-
vented his counsel from raising the Brady claim regarding Bianca
prior to state habeas. He correctly points out that "a defendant cannot
conduct a `reasonable and diligent investigation' [as] mandated by
McCleskey to preclude a finding of procedural default when the evi-
dence 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 suppressed when he appealed his con-
viction, suppression of the documents would not constitute cause for
failure to bring a Brady claim. 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 Brady claim, 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 the burden of rebutting the presump-
tion 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,
____________________________________________________________
   5
     Walker also does not argue that a fundamental miscarriage of justice
will occur if we do not consider his claim.

                                  13
shortly before trial the defense received a Presentence Report refer-
encing two undisclosed police reports containing the same informa-
tion as the documents listed above. This Presentence Report, by
referencing these undisclosed documents, evidenced the Common-
wealth's suppression of the alleged Brady material.6 The factual basis
for the assertion of Walker's Brady claim, therefore, was available not
only before direct appeal, but before sentencing. Because Walker has
failed to rebut the state court's finding that he could have brought his
claim on direct review, he cannot demonstrate that the alleged with-
holding by the Commonwealth constitutes cause to excuse his failure
to raise the claim.7

                                  B.

   We now turn to the remainder of Walker's Brady claim 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 and
Charles Randolph and Jennifer Stewart, an apartment at 1309 W. Gra-
ham Road, on the night of Beale's murder and exclaimed, "I shot
him." (J.A. at 50-52.) Miller testified that he observed an unidentified
person leave Beale's apartment after the shooting and enter the Ran-
____________________________________________________________
   6
     In Strickler v. Greene, 527 U.S. 263 (1999), the Court explained that
mere suspicion is not enough "to impose a duty on counsel to advance
a claim for which they have no evidentiary support." Id. at 286. Because
the Presentence Report provided direct evidence that the Commonwealth
had failed to disclose the alleged Brady material, Walker's reliance on
Strickler for the premise that his appellate counsel had no basis to raise
a Brady claim is therefore misplaced. Walker's counsel received evi-
dence before trial that should have at least raised suspicion that the Com-
monwealth 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 shoot-
ing." (J.A. at 541 (emphasis added).) However, we need not decide
whether the Report of Autopsy was sufficient to support the Brady claim
Walker now asserts because the Presentence Report, containing direct
evidence of the alleged Brady violation, undoubtedly was.
   7
     Because Walker has not shown cause for the default, we need not
consider his claim that he has established actual prejudice.

                                  14
dolph apartment. Walker contends that the Commonwealth sup-
pressed the following records that 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 Detective Mullins by 1309 W. Graham Road
resident Jennifer Stewart that she "didn't see him [Todd] Friday eve-
ning" (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 summarizing Miller's account of what he
witnessed, with no mention of the perpetrator entering 1309 W. Gra-
ham Road (J.A. at 488-89); and (5) the Supplementary Offense
Report of Officer Ernst summarizing Miller's account of what he wit-
nessed, 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 Brady claim
was without merit. Specifically, the state court concluded that "no
material, exculpatory evidence was withheld." (J.A. at 348.) The state
court reasoned that

         [n]either Stewart nor Randolph testified at trial; a review of
         the investigating officer's complete 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 destroying the exculpatory quality of
         the evidence alleged by petitioner to have been withheld.

(J.A. at 349.)
____________________________________________________________
    8
      Randolph stated in an affidavit that she knew Walker as "Ty." As
stated above, Patterson knew Walker as "Todd" and Noble knew him as
"Paul."

                                 15
   Under the Brady rule, the prosecution is required "to disclose evi-
dence 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 error
results from its suppression by the government,`if there is a reason-
able probability that, had the evidence 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 considers the materiality of undisclosed
evidence item by item, it must ultimately 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 Road apartment] after the shooting"
(J.A. at 486) cannot be characterized as impeachment evidence
because Randolph did not testify. Moreover, even if it were poten-
tially exculpatory evidence, it would not fall under the Brady rule
because Walker's defense counsel was 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 Brady rule. See,
e.g., United States v. Agurs, 427 U.S. 97, 103 (1976) (explaining that
Brady applies in situations in which information is known to the pros-
ecution 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 evidence because Stew-
art 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. Patterson testified that she had been
upstairs with Stewart and that she 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 that the following three documents contra-
dict Miller's testimony that the person Miller saw leave Beale's apart-
ment entered the Randolph apartment before driving away: the
Commonwealth's witness synopsis sheet (J.A. at 483), the Supple-
mentary Offense Report of Detective Mullins (J.A. at 488-89), and

                                  16
Supplementary 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 witness
synopsis sheet, that the person Miller observed the night of the shoot-
ing "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 prose-
cutor's work product must be produced under the Jencks Act if it con-
tains a statement relating to the testimony of a government witness
that has been "signed or otherwise adopted or approved" by the gov-
ernment witness). Indeed, it is not even clear whether 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. Detective Mullins's report, created on
December 16, 1996, contains no statement by Miller regarding
whether the person he saw entered Randolph's apartment before driv-
ing away. Detective Ernst's description 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 Supplemen-
tary Offense Reports and the witness synopsis sheet fall under the
Brady rule and would have had some impeachment effect, the prose-
cution would have been able to rehabilitate Miller with Officer Mul-
lins's contemporaneous notes of his interview of Miller on the day of
the murder, which reflect that Miller 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 state court to conclude that the mate-
rial allegedly withheld in violation of Brady was either not impeach-
ment evidence or the cumulative effect of any material that was
____________________________________________________________
   9
     The Supreme Court has not decided whether Brady requires a prose-
cutor 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 com-
pels the prosecutor to produce notes not covered under the Jencks Act).

                                17
impeachment 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 indi-
vidual violates the Eight Amendment's ban on cruel and unusual pun-
ishments), a claim he did not make in the district court and has not
presented in state court. Because Walker's Atkins claim is "a brand-
new, free-standing allegation of constitutional error in the underlying
criminal judgment," United States v. Winestock, __ F.3d __, No. 02-
6304 (4th Cir. Apr. 25, 2003) (explaining 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] ground
for relief, then that ground has been waived on appeal, . . . and a pris-
oner's habeas options are thereafter limited by the special rules that
apply to second or successive collateral attacks."). But see Hill v.
Anderson, 300 F.3d 679, 682 (6th Cir. 2002) (combining petitioner's
Atkins claim, raised for the first time on appeal, with habeas petition
at issue in appeal). A successive habeas petition is allowed under
§ 2244(b)(2)(A) if "the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable." Walker's claim satisfies
these requirements because the Court in Atkins announced a new rule
of constitutional law that applies retroactively 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-retroactivity and would be applicable
to defendants on collateral review"); accord Hill, 300 F.3d at 681.
We, therefore, grant Walker's motion and authorize the district court
to consider Walker's successive habeas petition.10 The district court,
____________________________________________________________
    10
       Because we need not consider the factual predicate of Walker's claim
to address his motion for authorization to file a successive petition, we
deny Walker's Motion for Leave to File Declaration of Dr. Scott W.
Sautter as Supplemental Material.

                                 18
of course, on considering Walker's petition, is free to dismiss it with-
out prejudice to afford the Commonwealth of Virginia the first oppor-
tunity to assess Walker's Atkins claim. See, e.g., Bell v. Cockrell, 310
F.3d 330, 332-33 (5th Cir. 2002) ("[I]nferior 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 ("The
Supreme Court's decision to return Atkins's case to state courts sug-
gests that we should return [petitioner's] Eighth Amendment retarda-
tion claim to the state for further proceedings. . . . [The state] should
have the opportunity to develop its own procedures for determining
whether a particular claimant is retarded 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 trial
and his claim that his due process rights were violated when the Com-
monwealth failed to timely disclose Brady materials. Because we con-
clude that the resolution of these issues by the Supreme Court of
Virginia does not constitute an unreasonable application of clearly
established federal law, we affirm the 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

                                  19
