UNPUBLISHED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Affirmed by unpublished opinion.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, Char-
lottesville, Virginia, for Appellant. Silas Bent Taylor, Deputy Attor-
ney 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Unpublished opinions are not binding precedent in this circuit.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 Vir-
ginia, 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 state-
ment:

          Dr. Romaro will testify that likewise, as the law enforce-
          ment 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

                     2
         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 examina-
tion of a police detective:

         Prosecutor: And after you concluded reading the defen-
         dant 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 cross-
examination:

         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?"

                    3
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 conscious-
ness and thinking that these men were attack-
ing 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 hap-
pened, about passing out and not remember-
ing, and the guys running towards you, and
all this?

Daniel: That very morning.

          4
          Prosecutor: July 9th, 1988?

          Daniel: Yes.

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

          So the defendant, in [the town of] Sophia, sure isn't offer-
          ing 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.

                    5
          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 evi-
          dence 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, indicat-
          ing a heart disregarding social duty, fatally bent on mischief.

          To prove premeditation it is not necessary that the inten-
          tion 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: delib-
          eration like malice, may be inferred when a deadly weapon
          is used.

          Therefore, if you find from the evidence beyond a reason-
          able doubt that this defendant, Ronald Gene Daniel, inten-
          tionally, 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 consecu-
tive sentences of ten years to life imprisonment on the murder convic-
tion 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.

                    6
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 con-
cluded 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 recommenda-
tions. After reviewing these objections, but without conducting a
hearing, the district court sustained the State's objections and over-

                     7
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 instruc-
tions allow the jury to make an unwarranted permissive inference of
malice and deliberation from the use of a deadly weapon, thus violat-
ing Daniel's right to due process? Second, did the prosecutor's refer-
ences 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 Dan-
iel's right to effective assistance of counsel? Fourth, did the cumula-
tive 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 ele-
mental fact of first-degree murder, from the proof of the basic fact,

                     8
"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 infer-
ence 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 instruc-
tion was not rationally connected to any proven facts. In support,
Daniel cited the Supreme Court of Appeals of West Virginia's com-
ment 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. Nev-
ertheless, 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 appel-
          late bench as jurors would have voted to convict the defen-
          dant 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 over-
whelming, 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-

                     9
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 coun-
sel 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 inde-
pendent 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 suf-
ficient 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 con-
cluded that it was procedurally barred. In Skipper v. French, this
Court outlined an analytical framework to follow when attempting to

                     10
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 fac-
          tually 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 cross-
examination 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 review-
ing the record, we conclude that the prosecution commented on Dan-
iel'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-

                     11
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 him-
self 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 stan-
dard of reasonableness, and, if so, (2) is there a reasonable probability
that, but for the unprofessional errors of Daniel's trial counsel, Dan-
iel'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 objec-
tive 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 Vir-
ginia 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 Dan-
iel'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 Vir-
ginia, 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 coun-
sel 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).

                     12
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 mis-
trial 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 inadequa-
cies 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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