Affirmed by Supreme Court on January 12, 2000.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TOMMY DAVID STRICKLER,
Petitioner-Appellee,

v.
                                                                       No. 97-29
SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
Respondent-Appellant.

TOMMY DAVID STRICKLER,
Petitioner-Appellant,

v.
                                                                       No. 97-30
SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-95-924-3)

Argued: March 6, 1998

Decided: June 17, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion. Judge Luttig wrote a separate state-
ment.

_________________________________________________________________
COUNSEL

ARGUED: Pamela Anne Rumpz, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Barbara Lynn Hartung, Richmond, Virginia, for Appellee.
ON BRIEF: Richard Cullen, Attorney General of Virginia, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lant. Mark E. Olive, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The petitioner, Tommy David Strickler, applied for a writ of
habeas corpus in the United States District Court for the Eastern Dis-
trict of Virginia following his conviction and death sentence for capi-
tal murder in the Circuit Court of Augusta County, Virginia. See 28
U.S.C. § 2254.1 The district court granted the writ, reasoning that
Strickler's rights under Brady v. Maryland, 373 U.S. 83 (1963), were
violated when the prosecutor failed to disclose certain evidence at
_________________________________________________________________
1 Because Strickler's petition for writ of habeas corpus was filed prior
to the April 24, 1996 enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the
Chapter 153 amendments of the AEDPA do not apply in this case. See
Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997) (holding that the Chapter
153 amendments, amendments applying to all federal habeas petitions,
do not apply to federal habeas petitions pending on the date of the
AEDPA's enactment). As to the Chapter 154 amendments, amendments
applying to capital petitioners, we need not decide whether these amend-
ments apply in this case because Strickler's claims are either procedur-
ally defaulted or meritless under the more lenient pre-existing standards.
Indeed, we are confident the AEDPA is of no help to Strickler.

                    2
trial. The Commonwealth of Virginia (the Commonwealth), acting
through one of its wardens, appeals this ruling. In his cross-appeal,
Strickler appeals the district court's dismissal of his claim that the
Virginia Supreme Court's proportionality review of his death sen-
tence was constitutionally deficient. Although the district court cor-
rectly dismissed Strickler's proportionality review claim, the district
court erred when it granted Strickler relief under Brady. Accordingly,
we affirm in part, vacate in part, and remand with instructions to dis-
miss the petition.

I

In 1990, Strickler was convicted of, inter alia , the capital murder
of Leanne Whitlock. As recounted by the Virginia Supreme Court on
direct appeal, the facts surrounding Whitlock's murder are:

          On January 5, 1990, Leanne Whitlock (Leanne), a sopho-
          more at James Madison University, borrowed a 1986 Mer-
          cury Lynx from her boyfriend, who worked at the Valley
          Mall in Harrisonburg. The car was clean at the time. Leanne
          left the Mall at 4:30 p.m. and, with her roommate, Sonja
          Lamb, drove to a store, where Leanne had a part-time job,
          to pick up a paycheck. Leanne dropped Sonja off about 6:45
          p.m. and left, alone, to return the borrowed car to her boy-
          friend.

          Anne Stolzfus was in a store at Valley Mall with her daugh-
          ter at 6:00 p.m. when Strickler, Ronald Henderson, and a
          blond woman entered. Strickler was behaving in such a
          loud, rude, and boisterous manner that she watched him
          with some apprehension. He was dressed in casual, but
          clean, clothing.

          As Mrs. Stolzfus was leaving the mall soon thereafter, she
          saw Leanne Whitlock driving the blue Mercury. Suddenly,
          Strickler ran out of the mall and addressed the occupant of
          a nearby van, angrily pounding on the van's door. Strickler
          also ran up to the occupants of a pick-up truck. He then
          turned to the Mercury that Leanne was driving, which was
          stopped in traffic, and pounded on the passenger side win-

                    3
         dow. Leanne leaned over as if to lock the door, but Strick-
         ler wrenched the door open and jumped into the car, facing
         Leanne. She appeared to try to push him away, but he
         opened the door and beckoned Henderson and the blond
         woman to join him.

         Leanne accelerated and began sounding blasts on the horn.
         Strickler struck her repeatedly and she ceased to sound the
         horn and stopped the car. Henderson and the blond woman
         entered the back seat. Mrs. Stolzfus came up to the car and
         asked, three times, "are you O.K.?" Leanne seemed "totally
         frozen." She drove the Mercury away very slowly, and
         mouthed the word, "help." The Mercury headed east on
         Route 33, toward Elkton. Mrs. Stolzfus' daughter wrote
         down its license number, West Virginia NKA 243.

         About 7:30 p.m., Kurt D. Massie and a friend were driving
         north on Route 340 near Stuarts Draft. They saw a dirty blue
         car, southbound, turn off and drive into a field. Strickler was
         the driver, a white woman was in the front seat with him,2
         and another man was in the back seat. Massie thought he
         saw a fourth occupant in the car.

         Between 9:00 and 9:15 p.m., Strickler and Henderson
         walked into Dice's Inn in Staunton. Strickler was wearing
         blue jeans which were dirty, bloody, and had a burn mark
         on them. He gave a wristwatch, later identified as the prop-
         erty of Leanne Whitlock, to a girl named Nancy Simmons.

        At 12:30 or 1:00 a.m., Strickler left Dice's Inn with Hender-
        son and a girl named Donna Tudor. The three entered a dirty
        blue Mercury. Henderson drove the car and Strickler sat in
        the back seat with Donna. Strickler told her he had bought
        the car from a man for $500. He also said that he had been
        in a fight and had injured his knuckle, which appeared to be
        lacerated. Strickler and Henderson discussed a "fight" they
        had had with "it," describing "it" with a racial epithet.
_________________________________________________________________

2 Leanne was black.

                   4
Strickler said they had kicked "it" in the back of the head
and had used a "rock crusher." He said "it" would give them
no more trouble. Strickler was calm during this conversa-
tion, but Henderson seemed nervous and kept looking over
his shoulder at them. The three drove to Harrisonburg to
purchase drugs. During the ride, Henderson nearly collided
head on with an approaching car, and Strickler drew a knife
and threatened to stab him.

After dropping Henderson off in Harrisonburg, Donna
Tudor went to Virginia Beach with Strickler in the blue
Mercury. The two stayed nearly a week, during which time
Donna saw Leanne Whitlock's driver's license, identifica-
tion card, and bank card in the car. Strickler tried to use the
bank card in Virginia Beach, and gave Donna a pair of ear-
rings which Leanne had worn on the night of January 5.

Several days later, Donna and Strickler returned to Strick-
ler's mother's home in New Market. Strickler's mother
washed his blood-stained blue jeans and his shirt.

Strickler told Donna to hide Leanne's three identification
cards in a bag with his T-shirt and other clothing. She
deposited these items in an abandoned car near Strickler's
stepfather's house, but later led police to them.

On January 10 or 11, Donna and Strickler abandoned the
blue Mercury near a church. Angry after an argument with
Donna, Strickler cut up the interior of the car with his hunt-
ing knife and also jumped on the car's roof, leaving his foot-
prints.

On January 13, Henderson's frozen wallet was found in the
cornfield into which Kurt Massie had seen Strickler drive
the blue Mercury on January 5. Later that day, police
searched the field and found Leanne's frozen clothing in a
pile near the place Henderson's wallet had been found.
Leanne's nude, frozen body was found in a nearby wooded
area, 300 feet from the highway, buried under two logs and

          5
covered with leaves which had been deliberately packed
around the logs.

Leanne's hands were extended over her head and crossed at
the wrists. She had been dragged by the feet over the ground
face down at or shortly after the time of her death, leaving
long linear scratches on her upper body. There were lacera-
tions and abrasions on the face, neck, and thighs, some con-
sistent with kicking. Death was caused by four large,
crushing, depressed skull fractures with lacerations of the
brain. Brain tissue had exuded from the left front of the
skull, and bone fragments were imbedded in the brain. Any
one of the fractures could have been fatal, but death was not
instantaneous.

Near the body, the police found a large rock, weighing 69
pounds, 4 ounces, which was stained with human blood in
two places. Despite the very cold weather, the rock was not
frozen to the ground.

Beside the rock, there were two indentations in the frozen
ground, one four inches deep, the other less. Each indenta-
tion contained blood of Leanne's blood type, as well as
human hair consistent with Leanne's in all respects. Human
hairs were also found on Leanne's frozen clothing. They
were Caucasian in origin, and matched Strickler's hair in all
respects. Some of them had evidently been torn out of his
head by the roots.

Two of the shoe impressions on the roof of the Mercury
matched a shoe Strickler was wearing when he was arrested
on January 11. Eighteen of his fingerprints, and nine of
Donna Tudor's, were identified in the car. A jacket with
Henderson's identification was found in the car. It bore at
least four human blood stains. The shirt Strickler had been
wearing on January 5 was recovered from the brown bag
Donna had hidden. It bore stains from semen consistent with
Strickler's, as well as human blood stains. Vaginal swabs
taken from Leanne's body also showed the presence of
semen, but its type was not identified.

          6
Strickler v. Commonwealth, 404 S.E.2d 227, 230-32 (Va. 1991).

On February 27, 1990, Strickler was charged with grand larceny,
robbery, and abduction in Rockingham County.3 That same day,
Strickler was indicted by an Augusta County grand jury for the rob-
bery and abduction of Whitlock.4 On April 23, 1990, Strickler was
indicted by an Augusta County grand jury for the capital murder of
Whitlock. Following a jury trial in Augusta County Circuit Court,
Strickler was convicted of all three charges. The jury fixed Strickler's
punishment at life imprisonment for the robbery and abduction con-
victions. In the bifurcated proceeding, the jury heard evidence in
aggravation and mitigation of the capital murder conviction. Based
upon findings of Strickler's future dangerousness and the vileness of
the crime, the jury fixed Strickler's sentence at death. The trial court
sentenced Strickler in accordance with the jury's verdicts.

Strickler appealed his convictions and sentences to the Virginia
Supreme Court, and that court affirmed. See Strickler v.
Commonwealth, 404 S.E.2d 227 (Va. 1991). On November 4, 1991,
the Supreme Court of the United States denied Strickler's petition for
writ of certiorari. See Strickler v. Virginia , 502 U.S. 944 (1991).

Strickler then sought state collateral relief in the Circuit Court for
Augusta County. In September 1993, the circuit court dismissed
Strickler's state habeas petition. The Virginia Supreme Court granted
a limited appeal to address whether: (1) the state habeas court erred
in refusing to vacate Strickler's capital murder conviction because of
an erroneous capital murder jury instruction; and (2) his trial coun-
sels' failure to object to the capital murder jury instruction rendered
his trial counsels' performance constitutionally ineffective. The Vir-
ginia Supreme Court found the former claim procedurally defaulted
under state law. See Strickler v. Murray, 452 S.E.2d 648, 651 (Va.
1995). As to the latter claim, the court found that Strickler was not
prejudiced by the erroneous capital murder instruction and, therefore,
failed to meet his burden of showing that, but for trial counsels' error,
_________________________________________________________________
3 Whitlock was abducted in Rockingham County, but murdered in
Augusta County.
4 As a result of the charges brought in Augusta County, the Rocking-
ham charges were nolle prosequi.

                     7
the result of the proceeding would have been different. See id. at 652-
53. On October 2, 1995, the Supreme Court of the United States
denied Strickler's petition for writ of certiorari. See Strickler v.
Angelone, 516 U.S. 850 (1995).

On March 5, 1996, Strickler filed a petition for writ of habeas cor-
pus in the United States District Court for the Eastern District of Vir-
ginia. On May 20, 1996, Strickler filed an amended petition. On
January 16, 1997, the district court dismissed, among other claims,
Strickler's claim concerning the Virginia Supreme Court's propor-
tionality review of his death sentence.

Following discovery, Strickler moved for summary judgment on
his Brady claim. In response, the Commonwealth filed a cross motion
for summary judgment. On October 15, 1997, the district court
granted Strickler's motion for summary judgment and denied the
Commonwealth's cross-motion for summary judgment. The district
court held that Strickler's constitutional rights were violated by the
prosecutor's failure to disclose certain evidence at trial. The Com-
monwealth moved for a stay of the district court's judgment pending
appeal, which the district court granted. Both Strickler and the Com-
monwealth noted timely appeals.

II

In the district court, Strickler contended that statements and letters
written by Anne Stolzfus, a Commonwealth witness, as well as police
reports contained in the Harrisonburg Police Department files,5 con-
tained exculpatory evidence which was required to be disclosed under
Brady. The parties refer to this evidence as"the Stolzfus materials,"
and these materials appear as Exhibits one through eight to an affida-
vit submitted in the district court by William Bobbitt, Jr., one of
Strickler's trial counsel. The district court concluded that Strickler's
rights were violated under Brady and issued the writ on that basis.

For two reasons, the Commonwealth contends the district court
erred in issuing the writ. First, the Commonwealth contends that the
_________________________________________________________________

5 Harrisonburg is located in Rockingham County.

                     8
Brady claim is procedurally defaulted and that Strickler has not estab-
lished cause and prejudice to excuse the procedural default. Second,
the Commonwealth contends that Strickler's Brady claim fails on the
merits.

Strickler's Brady claim was never presented to the Virginia state
courts. Strickler's failure to raise the claim in state court brings into
play the doctrines of exhaustion and procedural default.

In the interest of giving the state courts the first opportunity to con-
sider alleged constitutional errors occurring in a state prisoner's trial
and sentencing, a state prisoner must exhaust all available state reme-
dies before he can apply for federal habeas relief. See Matthews v.
Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, 118 S. Ct. 102
(1997); see also 28 U.S.C. § 2254(b). To exhaust state remedies, a
habeas petitioner must fairly present the substance of his claim to the
state's highest court. See Matthews, 105 F.3d at 911. The exhaustion
requirement is not satisfied if the petitioner presents new legal theo-
ries or factual claims for the first time in his federal habeas petition.
See id. The burden of proving that a claim is exhausted lies with the
habeas petitioner. See Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.
1994).

A distinct but related limit on the scope of federal habeas review
is the doctrine of procedural default. If a state court clearly and
expressly bases its dismissal of a habeas petitioner's claim on a state
procedural rule, and that procedural rule provides an independent and
adequate ground for the dismissal, the habeas petitioner has procedur-
ally defaulted his federal habeas claim. See Coleman v. Thompson,
501 U.S. 722, 731-32 (1991). A procedural default also occurs when
a habeas petitioner fails to exhaust available state remedies and "the
court to which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the
claims procedurally barred." Id. at 735 n.1. We may excuse a proce-
dural default if the petitioner "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 claim[ ] will result in a fun-
damental miscarriage of justice." Id. at 750.6
_________________________________________________________________
6 Before this court, Strickler has not attempted to establish that our
refusal to address his Brady claim would result in a "miscarriage of jus-
tice." Accordingly, we do not address the "miscarriage of justice" excep-
tion.

                     9
Under Virginia law, "a petitioner is barred from raising any claim
in a successive petition if the facts as to that claim were either known
or available to petitioner at the time of his original petition." Hoke v.
Netherland, 92 F.3d 1350, 1354 n.1 (4th Cir.) (internal quotes omit-
ted), cert. denied, 117 S. Ct. 630 (1996); Va. Code Ann. § 8.01-
654(B)(2) ("No writ [of habeas corpus ad subjeciendum] shall be
granted on the basis of any allegation the facts of which petitioner had
knowledge at the time of filing any previous petition."). Thus, resolu-
tion of the question of whether Strickler's Brady claim is procedurally
defaulted turns on whether the factual basis of Strickler's Brady claim
was available to him at the time he filed his state habeas petition.

We begin our discussion with a summary of the facts surrounding
Strickler's Brady claim. Prior to trial, Detective Dan Claytor of the
Harrisonburg Police Department interviewed Stolzfus on approxi-
mately five occasions. Detective Claytor took notes during, and typed
reports of, his interviews with Stolzfus and received letters and "sum-
maries" from Stolzfus. These documents, referred to by the parties as
the "Stolzfus materials," were kept in Harrisonburg Police Depart-
ment files.

On the day before trial, an article appeared in the Roanoke Times
containing an interview with an unidentified prosecution witness,
obviously Stolzfus. In the interview, Stolzfus summarized the circum-
stances surrounding Whitlock's abduction. This summary tracked her
eventual trial testimony and also revealed a fact not contained in her
trial testimony: that she had contacted Whitlock's boyfriend and
viewed photographs of Whitlock.

At trial, Stolzfus testified that she was interviewed by Detective
Claytor on several occasions and described Whitlock's abduction to
a reporter from the Roanoke Times approximately one week prior to
the trial. Stolzfus also testified that she had identified Strickler in a
photo line-up.

As to the circumstances surrounding Whitlock's abduction, Stolz-
fus testified that on January 5, 1990, she went to the Valley Mall in
Harrisonburg with her daughter. Around 6:00 p.m., they entered the
Music Land store where she saw two men and a blond woman. One
of the men was "revved up" and impatient. She described the physical

                     10
features of the three and their clothing. After Stolzfus left the store,
she again encountered the trio inside the Valley Mall and spoke
briefly to the woman. Shortly thereafter, Stolzfus and her daughter got
into their car and stopped in the Valley Mall parking lot when a car
came by. The driver was a black woman. Stolzfus described her as a
"rich college kid," "beautiful," "well dressed," "happy," "singing," and
"bright eyed." Stolzfus testified she got a good look at her and identi-
fied the driver as Whitlock.

Whitlock pulled in front of Stolzfus and stopped for traffic. The
"revved up" man from the music store, whom Stolzfus later identified
as Strickler, came out of the Valley Mall and banged on vehicles in
front of Whitlock's car. He then pounded on Whitlock's passenger
side window, yanked the car door open, and sat facing her. She tried
to push him away. The second man and the blond woman, seen earlier
in the Valley Mall, tried to enter the car also. Whitlock accelerated
and "laid on the horn." Strickler hit Whitlock repeatedly on her shoul-
der and head. When the car stopped, Strickler opened the passenger
door, and the other two got into the backseat. The second man, later
identified as Henderson, handed his coat to Strickler who put it on the
floor and "fiddled with it [for] what seemed like a long time."

Stolzfus pulled parallel to Whitlock's car, got out, and walked over
to look. Henderson "laid over on the seat to hide from" Stolzfus.
Stolzfus returned to her car, faced Whitlock, and then asked her three
times "are you O.K." Each time Whitlock looked at Stolzfus and then
down to her right. Whitlock mouthed a word that Stolzfus did not
understand. She then realized that Whitlock had said"help." Stolzfus
pulled away and told her daughter to go inside the Valley Mall and
get security. The daughter refused. Whitlock drove past Stolzfus very
slowly, "went up over the curb . . . so the car really tilted," and "laid
on the horn again." Stolzfus told her daughter to write the license
number down on an index card. Stolzfus remembered the plate, West
Virginia NKA 243, with a trick, "No Kids Alone 243."7
_________________________________________________________________
7 For reasons not entirely clear from the record, Stolzfus did not report
the incident to law enforcement. However, the record does reflect that
Stolzfus was approached by Detective Claytor after she had told a fellow
classmate at James Madison University about the January 5, 1990 inci-
dent and her classmate informed law enforcement.

                    11
On state habeas, Strickler did assert an ineffective assistance of
counsel claim based on counsels' failure to file a Brady motion,
although it is unclear from the record what formed the factual basis
for this claim. The Commonwealth opposed the motion on the basis
that Strickler received all Brady material through the prosecutor's
open file policy. However, Strickler did not request to examine the
police files of the Harrisonburg Police Department, notwithstanding
Stolzfus' trial testimony that she was interviewed by Detective Clay-
tor on several occasions and Virginia Supreme Court Rule 4:1(b)(5)
which allows, with prior leave of court, discovery on all relevant mat-
ters that are not privileged.

On federal habeas, Strickler served interrogatories and subpoenaed
documents from various police and prosecution files. Pursuant to a
subpoena, Strickler obtained the Stolzfus materials from the Harrison-
burg Police Department files. Pursuant to another subpoena, Strickler
obtained all materials concerning Stolzfus in the current custody of
the Augusta County Commonwealth's attorney's office. The prosecu-
tor's file contained Exhibits two, seven, and eight, but did not contain
Exhibits one and three through six.8
_________________________________________________________________
8 There is a dispute between the parties concerning which exhibits were
disclosed to Strickler prior to trial. In response to Strickler's interrogato-
ries, Lee Ervin, the prosecutor in Strickler's case, stated that he reviewed
only Exhibits two, seven, and eight and had never reviewed Exhibits one
and three through six prior to Strickler's trial. Ervin also stated that
Exhibits two, seven, and eight were in his prosecution file and were dis-
closed to defense counsel pursuant to the open file policy. Bobbitt stated
in his affidavit that he had never seen any of the Stolzfus materials prior
to, or during, Strickler's trial, notwithstanding the open file policy. Simi-
larly, Humes J. Franklin, Jr., Henderson's trial counsel, stated in his affi-
davit that he had no recollection of seeing any of the Stolzfus materials
in Ervin's files. However, Thomas Roberts, Strickler's other trial coun-
sel, stated in his affidavit that, although he could not recall if he had seen
the Stolzfus materials, he did recall the "information contained in them."
Roberts also stated that he had discussed with Bobbitt the "possibility
that Ms. Stolzfus may not be a credible witness because she had not
come forward immediately and her story had become much more
detailed over time." According to Roberts, "[i]t seemed too good to be
true." The district court never resolved this dispute because the district
court concluded that even if Exhibits two, seven, and eight were dis-

                    12
As noted above, the Stolzfus materials appear as Exhibits one
through eight to an affidavit submitted in the district court by Bobbitt.
Exhibit one is a one-page document containing Detective Claytor's
hand-written notes of his initial January 19, 1990 interview with
Stolzfus. The notes reveal that Stolzfus could not identify Whitlock;
could identify the blond woman; and indicated that Henderson was
tall, had black hair, and wore a cream colored jacket. Exhibit two is
a six-page, typed report of Detective's Claytor's interviews with
Stolzfus on January 19 and 22, 1990. The report contains a detailed
summary of Stolzfus' account of Whitlock's abduction. However,
Detective Claytor's report notes that Stolzfus was not sure if she
could identify Strickler and Henderson, although Stolzfus indicated
she might if she saw Strickler and Henderson in person. Exhibit two
also notes that Stolzfus was taken to the police impound lot on Janu-
ary 24, 1990, and shown the car Whitlock had been driving. Accord-
ing to the report, the next day Stolzfus advised police that she now
recalled the license number, NKA 243, and "had made up a code to
help remember the license number after the incident,`No Kids After
243.'"

Exhibit three entitled "Observations" was given to Detective Clay-
tor by Stolzfus on January 19, 1990, at 1:00 p.m. In this exhibit,
Stolzfus describes the abduction with a set of diagrams.

Exhibit four is a typed letter, dated January 22, 1990, to Detective
Claytor signed by Stolzfus. In this letter, Stolzfus explains that
although she did not initially remember being at the Valley Mall on
the evening Whitlock was abducted, her memory was"jogged" when
her daughter reminded her of a small purchase at a shop in the Valley
Mall. In this exhibit, Stolzfus also explains that she was uncertain
about portions of the events she witnessed the evening of Whitlock's
abduction:
_________________________________________________________________

closed to Strickler, his rights under Brady were violated. We need not
decide this factual dispute because, as discussed infra, Strickler's Brady
claim is procedurally defaulted; Strickler has not established cause and
prejudice to excuse the default; and the claim is, in any event, without
merit.

                     13
          I have a very vague memory that I'm not sure of. It seems
          as if the wild guy that I saw had come running through the
          door and up to a bus as the bus was pulling off. I have
          impressions of intense anger, of his going back to where the
          dark haired guy and girl were standing. Then the guy I saw
          came running up to the black girl's window? Were those 2
          memories the same person? . . .

Exhibit five is an undated, typed document entitled"Notes for
Detective Claytor: My Impressions of the Car." In this exhibit, Stolz-
fus gives a description of the car driven by Whitlock, but does not
mention the license plate or the license plate number.

Exhibit six is a hand-written note to Detective Claytor from Stolz-
fus dated January 25, 1990, 1:45 a.m. In this note, Stolzfus reports
that she spent several hours with Whitlock's boyfriend viewing pho-
tographs and was certain Whitlock was the black girl she saw on Jan-
uary 5, 1990.

Exhibit seven is a typed two-page letter dated January 26, 1990, to
Detective Claytor and signed by Stolzfus. This letter contains a
description of Stolzfus' encounter with Strickler, Henderson, and the
blond woman at the music store in the Valley Mall.

Exhibit eight is a three-page, typed document, undated and signed
by Stolzfus. The document is entitled "Details of Encounter with
Mountain Man, Shy Guy and Blond Girl." This exhibit contains a
detailed description of Stolzfus' encounter with Strickler, Henderson,
and the blond woman in the Valley Mall and of Whitlock's abduction.
The summary of Whitlock's abduction in this exhibit essentially mir-
rors her trial testimony and the facts set forth in the Roanoke Times
article.9

We are of the opinion that the factual basis of Strickler's Brady
claim was available to him at the time he filed his state habeas peti-
tion and, therefore, the Brady claim is procedurally defaulted under
the authority of Hoke and Va. Code Ann.§ 8.01-654(B)(2). Strickler,
_________________________________________________________________
9 The Roanoke Times article was produced by the Commonwealth as
an exhibit in its cross-motion for summary judgment.

                    14
of course, knew that Stolzfus was interviewed by Detective Claytor
on several occasions and had identified Strickler in a photo line-up.
In light of these facts, reasonably competent counsel would have
sought discovery in state court in order to examine the Harrisonburg
Police Department files concerning Stolzfus' statements to Detective
Claytor. Upon such a simple request, it is likely the state court would
have ordered the production of the files. In other words, in state court,
Strickler could have followed a procedure similar to the one he fol-
lowed in federal court: Strickler could have filed a discovery motion
seeking to review the Harrisonburg police files, see Va. S. Ct. Rule
4:1(b)(5) (extending discovery, with prior leave of court, to all mat-
ters that are relevant and not privileged). His failure to do so results
in a procedural default of his Brady claim.

Having concluded that Strickler's Brady claim would be procedur-
ally defaulted if he attempted to raise it in state court at this time, we
can only address Strickler's Brady claim if he can demonstrate cause
and actual prejudice. See Coleman, 501 U.S. at 750. Objective factors
that constitute cause include "`interference by officials' that makes
compliance with the State's procedural rule impracticable, and `a
showing that the factual or legal basis for a claim was not reasonably
available to counsel.'" McClesky v. Zant, 499 U.S. 467, 493-94
(1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see
also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988). Addi-
tionally, the novelty of a claim has been held to constitute cause. See
Reed v. Ross, 468 U.S. 1, 12-16 (1984); see also Dugger v. Adams,
489 U.S. 401, 407 (1989) (stating that cause may be established upon
demonstration that a constitutional claim is "so novel that its legal
basis is not reasonably available to counsel"). Finally, a petitioner
may establish cause by showing he received constitutionally ineffec-
tive assistance of counsel. See Coleman, 501 U.S. at 753; Murray,
477 U.S. at 488.10
_________________________________________________________________
10 Generally, "a claim of ineffective assistance [must] be presented to
the state courts as an independent claim before it may be used to estab-
lish cause for a procedural default." Murray , 477 U.S. at 489; see also
Pruett v. Thompson, 996 F.2d 1560, 1570 (4th Cir. 1993). This is so
because allowing a petitioner to raise a claim of ineffective assistance of
counsel for the first time on federal habeas review in order to show cause
for a procedural default would place the federal habeas court "in the

                     15
Strickler asserts that the factual basis for his Brady claim was
unavailable to him at the time he filed his state habeas petition and,
therefore, he has established cause for the procedural default. But, as
noted above, Strickler's Brady claim was available to him in state
court through the exercise of reasonable diligence. As such, he cannot
establish cause based upon the unavailability of the Brady claim. See
Stockton v. Murray, 41 F.3d 920, 925 (4th Cir. 1994) ("Even if [the
petitioner] had not actually raised or known of the claims previously,
he still cannot establish cause to excuse his default if he should have
known of such claims through the exercise of reasonable diligence.").

Strickler also argues that his trial counsel were constitutionally
ineffective for failing to make a Brady motion at trial. If attorney
error amounts to constitutionally ineffective assistance of counsel
under the standard established in Strickland v. Washington, 466 U.S.
668 (1984), the Sixth Amendment dictates that the attorney's error
must be imputed to the state. See Coleman, 501 U.S. at 754. Accord-
ingly, Strickler may establish cause to excuse his procedural default
by showing trial counsel error that satisfies the standard set forth in
Strickland. See id. at 752. Under Strickland, a defendant is deprived
of the assistance of counsel guaranteed by the Constitution when
counsel's performance falls "below an objective standard of reason-
ableness" and "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.

In this case, Strickler's trial counsels' action did not fall below an
objective standard of reasonableness. In light of the prosecutor's open
file policy, trial counsel were under no obligation to file a Brady
motion. Cf. Smith v. Maggio, 696 F.2d 365, 367 (5th Cir. 1983)
("Counsel had no duty to file pre-trial motions, because the prosecutor
established an open file policy that made filing of discovery motions
or Brady requests pointless.").
_________________________________________________________________
anomalous position of adjudicating an unexhausted constitutional claim
for which state court review might still be available" in contravention of
"[t]he principle of comity that underlies the exhaustion doctrine."
Murray, 477 U.S. at 489. Strickler has satisfied this requirement by pre-
senting an ineffective assistance of counsel claim based on trial counsels'
failure to file a Brady motion to the state court on state habeas.

                    16
Even if we were to agree with Strickler that cause exists to excuse
his procedural default, Strickler cannot establish prejudice. To estab-
lish "actual prejudice," Strickler "must shoulder the burden of show-
ing, not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional dimensions."
United States v. Frady, 456 U.S. 152, 170 (1982); Satcher v. Pruett,
126 F.3d 561, 572 (4th Cir.), cert. denied, 118 S. Ct. 595 (1997).

Under Brady and its progeny, the prosecution's failure to disclose
"evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irre-
spective of the good faith or bad faith of the prosecution." United
States v. Ellis, 121 F.3d 908, 914 (4th Cir.) (quoting Brady, 373 U.S.
at 87), cert. denied, 118 S. Ct. 738 (1998); accord Kyles v. Whitley,
514 U.S. 419, 431 (1995). However, evidence is material "only where
there exists a `reasonable probability' that had the evidence been dis-
closed the result of the trial would have been different." Ellis, 121
F.3d at 914 (quoting Wood v. Bartholomew, 516 U.S. 1, 5 (1995)). A
"reasonable probability" of a different result is shown when the gov-
ernment's failure to disclose evidence "undermines confidence in the
outcome of the trial." Kyles, 514 U.S. at 434.

In our view, the Stolzfus materials would have provided little or no
help to Strickler in either the guilt or sentencing phases of the trial.
During either phase, Strickler never contested that he abducted and
robbed Whitlock. In fact, counsel for Strickler argued to the jury dur-
ing the guilt phase that they should convict Strickler of first degree
murder rather than capital murder because Henderson, rather than
Strickler, actually killed Whitlock. Thus, Stolzfus' testimony was not
critical to the Commonwealth's case, especially in view of the over-
whelming evidence in the record, independent of Stolzfus' testimony,
demonstrating that Strickler abducted and robbed Whitlock. During
the sentencing phase, Stolzfus' testimony was of no import. For the
future dangerousness aggravating circumstance, the parties focused
their arguments on Strickler's prior criminal record, which included
approximately eleven prior convictions. As to the vileness predicate,
although the prosecutor did state the uncontested fact that Whitlock
was abducted, the focal point of his argument was on the use of the
sixty-nine pound boulder to crush and fracture Whitlock's skull. In

                     17
short, the failure to disclose any or all of the Stolzfus materials does
not undermine our "confidence in the outcome of the trial." Id.

In summary, Strickler's Brady claim is procedurally defaulted and
he has failed to establish cause and prejudice to excuse the default.
Accordingly, the district court erred when it granted the writ on
Strickler's Brady claim.11

III

In his cross-appeal, Strickler contends that the Virginia Supreme
Court's proportionality review of his death sentence was constitution-
ally inadequate. In response, the Commonwealth contends that this
claim is procedurally defaulted and that Strickler has not established
cause to excuse the procedural default. Alternatively, the Common-
wealth argues that the claim is without merit.

Strickler presented this claim for the first time in his state habeas
petition and it was found to be procedurally defaulted under the
authority of Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). In
Slayton, the Virginia Supreme Court held that claims that could have
been raised at trial or on direct appeal but were not cannot be consid-
ered on collateral review. Id. at 682. The district court held that
Strickler's proportionality review claim was procedurally defaulted
under Slayton and that Strickler failed to establish cause and actual
prejudice to excuse the default.

Absent cause and actual prejudice or a miscarriage of justice,12 a
federal habeas court may not review constitutional claims when a
state court has declined to consider their merits on the basis of an ade-
quate and independent state procedural rule. See Harris v. Reed, 489
_________________________________________________________________
11 Even if we could get beyond the threshold question of procedural
default, for the same reasons why Strickler cannot demonstrate prejudice
to excuse the procedural default of his Brady claim, Strickler's Brady
claim fails on the merits.
12 Because Strickler has not attempted to establish that our refusal to
address his procedurally defaulted proportionality review claim would
result in a miscarriage of justice, we do not address the miscarriage of
justice exception.

                     18
U.S. 255, 262 (1989). Such a rule is adequate if it is regularly or con-
sistently applied by the state court, see Johnson v. Mississippi, 486
U.S. 578, 587 (1988), and is independent if it does not "depend[ ] on
a federal constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75
(1985).

Under federal habeas law, we are not at liberty to question a state
court's application of a state procedural rule because a state court's
finding of procedural default is not reviewable if the finding is based
upon an adequate and independent state ground. See Harris, 489 U.S.
at 262; Barnes v. Thompson, 58 F.3d 971, 974 n.2 (4th Cir. 1995).
Because Slayton is an independent and adequate state ground, we can
consider only whether cause and prejudice exists to excuse the proce-
dural default, not whether the state court correctly applied its own
law. See Harris, 489 U.S. at 262.

Strickler contends that he has established cause because he was
unable to raise his proportionality review claim until after the Virginia
Supreme Court conducted such a review and subsequently affirmed
his sentence on direct review. We disagree.

As noted earlier, objective factors that constitute cause include
"`interference by officials' that makes compliance with the State's
procedural rule impracticable, and `a showing that the factual or legal
basis for a claim was not reasonably available to counsel.'" McClesky,
499 U.S. at 493-94 (quoting Murray, 477 U.S. at 488). Findings of
the state court supporting its decision to apply the state procedural
default rule are entitled to a presumption of correctness in determin-
ing whether cause exists to excuse a procedural default. See 28 U.S.C.
§ 2254(d); Sumner v. Mata, 449 U.S. 539, 547 (1981); Stockton, 41
F.3d at 924.

An issue before the Virginia Supreme Court on direct appeal was
whether Strickler's death sentence was "excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime
and the defendant." See Va. Code Ann.§ 17-110.1(C)(2). Obviously,
Strickler was free to assert, and the Virginia Supreme Court was free
to entertain, a facial challenge to all proportionality review in the
Commonwealth of Virginia on direct appeal, prior to the Virginia
Supreme Court's proportionality review. Furthermore, Strickler was

                    19
free to assert, and the Virginia Supreme Court was free to entertain,
an as-applied challenge to the proportionality review that he received
on direct appeal in a rehearing petition to the Virginia Supreme Court.
In fact, Strickler filed a petition for rehearing, but did not challenge
the Virginia Supreme Court's proportionality review of his death sen-
tence. Accordingly, Strickler has not met his burden of "`showing that
the factual or legal basis for [the proportionality review] claim was
not reasonably available to counsel,'" McClesky, 499 U.S. at 494
(quoting Murray, 477 U.S. at 488), and, therefore, has failed to estab-
lish cause to excuse the procedural default.13

IV

For the reasons stated herein, the judgment of the district court is
affirmed in part, vacated in part, and remanded with instructions to
dismiss the petition.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS

LUTTIG, Circuit Judge:

Appellee/cross-appellant Tommy Strickler has filed a motion that
I be disqualified from participation in the decision of this case pursu-
ant to 28 U.S.C. § 455. (On different grounds, counsel for Strickler
_________________________________________________________________
13 Even if we were able to get past the threshold question of procedural
default, Strickler would not be entitled to relief. First, it is well-settled
that no proportionality review is constitutionally mandated. See Pulley v.
Harris, 465 U.S. 37, 50-51 (1984). As we stated in Petersen v. Murray,
904 F.2d 882 (4th Cir. 1990), "this court may not issue a writ of habeas
corpus on the ground that the [Virginia] Supreme Court has made an
error of state law." Id. at 887 (citation and internal quotes omitted). See
also Buchanan v. Angelone, 103 F.3d 344, 351 (4th Cir. 1996) (stating
that claim that proportionality review was inadequate cannot form the
basis of federal habeas corpus relief), aff'd , 118 S. Ct. 757 (1998). Sec-
ond, we have examined the proportionality review conducted by the Vir-
ginia Supreme Court, see Strickler v. Commonwealth, 404 S.E.2d at 237,
and we cannot conclude that Strickler has been denied any federal consti-
tutional right, if one were to exist, to adequate and meaningful propor-
tionality review.

                    20
earlier sought, and was denied, recusal of the state habeas judge.). As
grounds for disqualification, Strickler's counsel, Barbara L. Hartung
and Mark E. Olive, cite the "unavoidable parallels" between the mur-
der of my dad and the murder of Leanne Whitlock for which Strick-
ler stands convicted. The Commonwealth opposes the motion for the
reasons stated in its response.

The circumstances surrounding my dad's murder are so different
from those surrounding the murder of Leanne Whitlock that, in my
judgment, no one, except those who believe I should not sit in any
murder case because my dad was the victim of a murder, could, on
this ground, reasonably question my ability to sit impartially on the
panel deciding this case. Moreover, the legal issues presented in this
appeal have no counterpart whatever in any of the proceedings
involving those who murdered my dad. Accordingly, the motion is
denied.

My dad was murdered in the driveway of his home in Tyler, Texas,
during a carjacking, at approximately 11:00 p.m. on April 19, 1994
-- more than four years ago now. Upon exiting his vehicle in the
garage, my dad was confronted by three armed, black youths, and
shot twice in the head with a .45 caliber weapon. A single shot was
fired at my mother, but she was not struck. The three perpetrators left
my parents' home immediately. No personal items, other than the car,
were stolen from my dad or my mother. Nothing was stolen from the
interior compartments of my parents' car. At trial, it was shown that
the three youths who murdered my dad had contemplated, and actu-
ally attempted, other carjackings in the immediately preceding days
and that they had, on the night of the murder, followed my mother
and dad to their home, having the purpose and intent of stealing my
parents' vehicle. Although the three who murdered my dad were
black, there was no testimony presented of either racial motivation or
racial animus. Two of the three youths were convicted in federal court
on carjacking charges and in state court on murder charges. The third
was convicted of capital murder in state court.

There are few parallels between the circumstances of my dad's
murder and the circumstances of Leanne Whitlock's murder, and
those that do exist are the most general in nature-- for example, that
three perpetrators were involved and that they stole a vehicle. Leanne

                    21
Whitlock was a black female, and a sophomore at James Madison
University when she was murdered. Whitlock was forcibly abducted
from a shopping mall parking lot in the early evening hours by Strick-
ler, a white adult male, and two white adult companions.

The three forced Whitlock to drive to a distant cornfield, where she
was apparently raped, and then killed with a 69-pound boulder. Id. at
231. According to the Virginia Supreme Court, whose findings in this
particular regard are not before us for review:

          Leanne's hands were extended over her head and crossed at
          the wrists. She had been dragged by the feet over the ground
          face down at or shortly after the time of her death, leaving
          long linear scratches on her upper body. There were lacera-
          tions and abrasions on the face, neck, and thighs, some con-
          sistent with kicking.

Id. The Virginia Supreme Court affirmed that Whitlock's "[d]eath
was caused by four large, crushing, depressed skull fractures with lac-
erations to the brain. Brain tissue had exuded from the left front of
the skull, and bone fragments were embedded in the brain." Id.
Whitlock's nude, frozen, buried body was subsequently found in the
field by authorities. Again according to the Virginia Supreme Court,
the shirt worn by Strickler the night of the murder"bore stains from
semen consistent with Strickler's, as well as human bloodstains. Vag-
inal swabs taken from Leanne's body also showed the presence of
semen, but its type was not identified." Id . at 231-32. Said the court:

          Prior to [Whitlock's] murder, the victim had been abducted
          by strangers, was terrified and called for help, was driven to
          a deserted field, was dragged, struggling, out of her car, was
          stripped naked, beaten, kicked, and sexually assaulted.

Id. at 237.

After the murder, Strickler and his codefendant discussed, in the
presence of a third person, a fight they had had with a "nigger," id.
at 231; Strickler said they had kicked the "nigger" in the back of the
head, had used a "rock crusher," and that the"nigger" would give

                    22
them no more trouble. Id. Strickler, his codefendant, and the third per-
son then drove back to the town where the murder occurred "to pur-
chase drugs." Id.

Strickler was indicted for robbery of not only Whitlock's vehicle,
but also other of her personal property, including her wristwatch, ear-
rings, and bank card. Id. at 230-31. Although Strickler was indicted
and apparently convicted for robbery of Whitlock's vehicle, it is
unclear whether Whitlock's vehicle was stolen principally for the
value of the car itself or instead as a get-away vehicle; the suggestion
is that the latter was the purpose. See Strickler v. Commonwealth, 404
S.E.2d 227, 230 (Va. 1991) ("Suddenly, Strickler ran out of the mall
and addressed the occupant of a nearby van, angrily pounded on the
van's door. Strickler also ran up to the occupants of a pick-up truck.
He then turned to the Mercury Leanne was driving, which was
stopped in traffic, and pounded on the passenger side window.").

Apart from the dissimilarity of the circumstances between my
dad's murder and Whitlock's murder, to my knowledge the issues
presented by this appeal under Brady v. Maryland, 373 U.S. 83
(1963), bear no resemblance in any respect to any of the issues raised
by any of those convicted of my dad's murder in any of their proceed-
ings to date. Indeed, insofar as I am aware, there has never been
raised an issue of changing eye-witness testimony or the improper
withholding of exculpatory evidence in any of the appeals from the
convictions for my dad's murder.

Against the backdrop of the factual and legal dissimilarities
between my dad's murder and the appeals from the ensuing convic-
tions on the one hand, and Leanne Whitlock's murder and the instant
appeal on the other, the natural inference arises that the present dis-
qualification motion has been filed not because my dad was the vic-
tim of a murder, but, rather, because I am the author of three, and I
joined a fourth, of this Circuit's authorities which Strickler's counsel
could have reasonably surmised might bear upon the disposition of
the appeals sub judice. See Barnes v. Thompson, 58 F.3d 971 (4th Cir.
1995) (Luttig, J.), cert. denied, 116 S. Ct. 4351 (1995); Hoke v.
Netherland, 92 F.3d 1350 (4th Cir.) (Luttig, J.), cert. denied, 117 S.
Ct. 630 (1996); In re Netherland, No. 97-8 (4th Cir. Apr. 10, 1997)
(Luttig, J., single Circuit Judge) (staying district court's ex parte grant

                     23
of pre-petition discovery to state prisoner); In re Pruett, 133 F.3d 275
(4th Cir. 1997) (Hall, J., joined by Luttig and Motz, JJ.).

Because of the time that has elapsed since my dad's murder; the
dissimilarity of the circumstances surrounding my dad's and Leanne
Whitlock's murders; and the lack of any overlap in the legal issues
presented in the appeals of the two cases, I do not believe that it can
reasonably be maintained either that I cannot impartially sit in judg-
ment of this appeal or that my impartiality can fairly be questioned.
Nor, any more than recusal from discrimination cases should be
required by judges who themselves, or whose families, have been
subjected to invidious racial or sexual discrimination, do I believe that
my recusal is required from this and all other murder cases for the
reason alone that my dad was the victim of a murder.

The purpose of section 455 is not to require recusal from the courts
of all who have experienced the fullness of life-- good and bad; and
certainly its purpose is not to enable forum shopping by parties to liti-
gation. Rather, its purpose is only to ensure that the matters before the
courts are decided by a judiciary that is impartial both in fact and in
appearance. I do not believe that this indisputably important purpose
is, in any way, compromised or disserved by my participation in this
case. As I have earlier stated in open court, capital defendants are
entitled to fair and impartial consideration of their claims by me when
I am randomly selected to serve on the panel hearing their cases. Nei-
ther before nor after my dad's murder have they received less.

                     24
