                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-7033



THOMAS A. CHILTON, JR.,

                Petitioner - Appellant,

          v.


WILLIAM PAGE TRUE, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:05-cv-00490-JRS)


Submitted:   June 16, 2008                  Decided:   May 1, 2009


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Neal L. Walters, James W. Burke, Per David Midboe, UNIVERSITY OF
VIRGINIA LAW SCHOOL OF LAW APPELLATE LITIGATION CLINIC,
Charlottesville, Virginia, for Appellant. Robert F. McDonnell,
Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant
Attorney General, Donald E. Jeffrey, III, Assistant Attorney
General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Thomas A. Chilton, Jr., appeals from the denial of his 28

U.S.C. § 2254 (2000) petition.           He seeks to challenge his Virginia

convictions for robbery and entering a bank while armed with a

deadly      weapon.       We    previously          granted    a    certificate      of

appealability on the following four claims: (1) whether Chilton

showed cause and prejudice sufficient to overcome his procedural

default on his claim that the Commonwealth withheld evidence that

the one hundred dollar bill was left in the bank; (2) whether his

attorney provided ineffective assistance when he failed to timely

obtain Chilton’s jail medical records and/or move for a continuance

to obtain them; (3) whether Chilton’s attorney was ineffective for

failing     to     interview    the    bank    teller       prior   to     trial;   and

(4) whether Chilton’s counsel was ineffective for failing to pursue

the   Fas    Mart    employee    witness.           After    briefing      and   further

consideration, we affirm in part and vacate and remand in part.

             Federal courts may only grant writs of habeas corpus in

those instances where the state court’s adjudication on the merits

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law” or

“resulted     in    a   decision      that    was    based    on    an    unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.”            28 U.S.C. § 2254(d).             In addition, a

state court’s findings of fact must be presumed correct unless the


                                        - 2 -
petitioner rebuts that presumption with “clear and convincing

evidence.”     28 U.S.C. § 2254(e)(1).

          With regard to Chilton’s ineffective assistance claims,

he must show that (1) counsel’s performance fell below an objective

standard of reasonableness; and (2) counsel’s deficient performance

was prejudicial.      Strickland v. Washington, 466 U.S. 668, 687

(1984).      Under the second prong, in order to establish that

counsel’s alleged incompetence prejudiced his case, a movant must

prove that there is a reasonable probability that his trial would

have had a different outcome absent such errors by counsel.    Id. at

694.



                                   I.

             Betty Bolton, a teller at Union Bank and Trust, testified

at trial that, on October 16, 1998, Chilton entered the bank and

asked her to change a one hundred dollar bill.      As she handed him

the change, he told her to give him all of her money.      Along with

the rest of the money, she gave him some of the smaller bills that

were her “bait money.”     As he asked for her to give him all of her

money, she noticed a long dark object that appeared to be a gun on

the counter.    His hand was on the object, but she believed that she

saw the barrel.    As she was pulling more money from the drawer, he

asked her to stop, which Bolton testified was “odd.” Then, Chilton

asked for the one hundred dollar bill back.     Bolton testified that


                                 - 3 -
the man appeared very calm and that the entire incident took less

than a minute.   After Bolton gave Chilton less than $300, Chilton

left the bank.

          Chilton   contends   that,     while   he   was   in   prison   in

September 2001 following the decision in his direct appeal, the one

hundred dollar bill was returned to him by the Hanover Police

Department.1   He states that this was the first time he had been

informed that the prosecution had evidence that he did not leave

the bank with the $100 bill.       He raised a claim based on this

evidence--specifically, that the State withheld this evidence--in

his brief to the Supreme Court of Virginia on direct appeal, but

the claim was denied without discussion.         In addition, he raised

the claim in his state post-conviction proceeding, and the court

found the claim defaulted.     Chilton claims that he can show cause

and prejudice sufficient to forgive his default.            See Mackall v.

Angelone, 131 F.3d 442, 445 (4th Cir. 1997) (en banc).

          Chilton states that he can show cause because he was not

aware and had no reason to believe that the evidence was withheld

until it was returned to him after his time to raise the issue on

appeal from his conviction had passed.      See Murray v. Carrier, 477

U.S. 478, 488 (1986) (holding that a showing that the factual basis

for a claim was not reasonably available will satisfy the “cause”



     1
      The return form does not disclose the circumstances under
which the bill was found.

                                 - 4 -
requirement).       The   Commonwealth     relies     on    trial    counsel’s

affidavit,    submitted   during   the     state    court    post-conviction

proceeding, in which counsel stated that “[o]n the way out of the

bank Chilton dropped the $100 bill on the floor, and this was

recovered by bank employees; despite this, Chilton left with more

than $100.    Whether Chilton left the bank with the $100 bill was

never an issue--everyone, including Chilton, knew that the $100

bill had been dropped in the bank, I never told him anything

otherwise.”    Thus, the Commonwealth contends that, at the time of

his appeal, Chilton was aware that the one hundred dollar bill had

been left in the bank, and he could have properly raised the issue

on appeal.

            However, as Chilton points out, it is not at all clear

that “everyone” knew that he had “dropped” the $100 bill in the

bank.   Both the Commonwealth and Chilton’s attorney (in closing

argument) told the jury that Chilton left the bank with the bill.

Moreover, neither Bolton nor Chilton testified as to what happened

to the one hundred dollar bill.        The record does not disclose why

Chilton’s attorney believed that the bill was dropped by Chilton,

where it was recovered, or by whom.        Further, the record does not

disclose why, if Chilton’s attorney was aware of the “dropped”

bill, he argued at trial that Chilton took it with him when he left

the bank.     Thus, we find that a material issue of fact exists

regarding    when   Chilton   became   aware   that   there    was    evidence


                                   - 5 -
supporting the conclusion that he left the bank without the one

hundred dollar bill.

             Not only must Chilton show cause for his failure to raise

this claim earlier, he must also show resulting prejudice. To show

prejudice, Chilton must demonstrate “a reasonable probability that

the result of the trial would have been different.”       Harbison v.

Bell, 408 F.3d 823, 834 (6th Cir. 2005), cert. denied, 547 U.S.

1101 (2006).     The evidence against Chilton was quite substantial.

There was no doubt as to the identity of the robber, and Chilton

confessed.     However, Chilton’s defense rested on his mental state

and his assertions that he was attempting to get change.    Thus, the

whereabouts of the one hundred dollar bill was material.     The fact

that Chilton took a stack of small bills and left without his one

hundred dollar bill certainly bolsters his claim that he was trying

to get change.     Instead, the jury was told that Chilton took the

bill with him, seriously undermining his defense.        We find that

Chilton has satisfied the Harbison standard and made a showing that

there is a “reasonable probability” that the result of his trial

would have been different had the jury heard this evidence.       See

Strickland v. Washington, 466 U.S. 668, 694 (1984) (“A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.”).

             For the foregoing reasons, we vacate the district court’s

dismissal of this claim as defaulted and remand for a hearing on


                                 - 6 -
when Chilton discovered that the Commonwealth recovered the one

hundred dollar bill from inside the bank.                The facts developed at

the hearing will likely also aid the court in determining whether

this information would have affected the jury’s decision.                  Should

the court find on remand that Chilton showed cause and prejudice

sufficient to overcome his default, the court should then address

the merits of Chilton’s claim.



                                        II.

             Chilton claims that his attorney was ineffective for

failing to investigate Chilton’s alleged breakdown when he was

jailed after his arrest.      Chilton asserts that he was treated with

anti-psychotic drugs and that, despite his request, his attorney

failed to timely obtain the jail records, consult with his treating

physician, and move for a continuance when the records could not be

located. The medical records showed that Chilton was medicated and

that   he   was   complaining      of    depression,        suicidal   thoughts,

delusions, and hearing voices.          Chilton claims that these records

would have aided both the expert witnesses who testified at the

motion in limine on his insanity defense and his defense at trial.

            The   trial    court     held     a    pre-trial   hearing     on   the

Commonwealth’s     motion    to    exclude         expert   evidence     regarding

Chilton’s   insanity      defense.       At       the   hearing,   three   doctors

testified that Chilton was sane at the time of the offense, and


                                      - 7 -
therefore, the state court granted the motion.            However, Drs.

Pasquale and Gibby also testified that an individual who was

suffering   from   post-traumatic    stress   disorder   (Chilton    was   a

Vietnam veteran) and/or was a heavy drug user (as Chilton was)

could experience blackouts or extreme confusion.             Dr. Israel

testified that Chilton suffered from depression and post-traumatic

stress disorder, which caused him to function at a diminished

mental capacity.

            Chilton’s attorney tried unsuccessfully for months to

obtain the jail records.      The records were eventually filed in

court, but when counsel asked for them before trial, he was told

that they had not been filed.       At trial, no further objection was

made, and the records were not discovered until after Chilton’s

conviction.

            In his affidavit submitted in state court, Chilton’s

attorney stated that, although he had subpoenaed the records, he

was told that they had not been delivered.         He asserted that he

told Chilton they could get a continuance, but Chilton elected to

proceed to trial anyway.    In addition, counsel stated that none of

the examining physicians believed it necessary to review the

records.    Prior to Chilton’s trial, the court swore him in and

questioned him regarding whether he was ready for trial.            Chilton

testified that he had sufficient time to discuss his defenses with




                                - 8 -
his attorney, that he was satisfied with his attorney, and that he

was ready for trial.

            In Chilton’s state filings, which consisted of a verified

petition and accompanying memorandum of law, he noted that Drs.

Israel and Gibby had actually testified that information regarding

Chilton’s demeanor nearer to the time of the crime would have been

helpful.2   In addition, Chilton averred that he testified he was

prepared for trial, because his attorney told him that the judge

would not grant any more continuances.     In fact, a week and half

before the scheduled trial date, the judge stated in open court,

“And the Court finds for the record that what is going on here is

Mr. Chilton is attempting to dictate how the case will be tried.

Twelve people are going to be in the box that day, and I’m not

going to delay it.      I’m not going to delay the trial again.”

(Trial Tr. at 381).

            The state court denied the claim when it was raised in

Chilton’s post-conviction proceeding, reasoning that (1) none of

the professionals who evaluated Chilton believed the jail records

would have been helpful, (2) counsel reasonably relied on the

clerk’s statement that the records had not been timely delivered to

the court, and (3) Chilton testified that he was ready to go to


     2
      Drs. Israel and Gibby testified specifically that the reports
of witnesses to the crime would have been helpful to their
analyses.   The jail medical records begin less than two months
after the crime. The testifying doctors did not examine Chilton
until well over seven months after the crime.

                                - 9 -
trial and satisfied with his attorney.                We conclude that the first

finding was unreasonable given the record before the state court,

as it is belied by the doctors’ testimony that information on

Chilton’s demeanor closer to the crime would be helpful.                           In

addition, the doctors were never specifically asked if the jail

records would be helpful, so it is unclear if they even knew of

their existence.      The second finding is irrelevant to counsel’s

failure to move for a continuance so that the records could be

located, and the third finding, while true, is not determinative.

            Chilton     alleged   that    his    attorney       convinced    him    to

abandon the issue of the jail records, by telling him that the

judge would not grant any more continuances.                 He supported these

allegations    with   the    court’s     own    statements,      as   well   as    his

verified    petition.       In   addition,      the    record    is   replete     with

Chilton’s requests for continuances, which undermines counsel’s

assertions that Chilton wanted to forego a continuance and go right

to trial.

            Chilton’s attorney claims that he told Chilton they could

get a continuance, but Chilton decided to forego one. He supported

these assertions with his affidavit, as well as Chilton’s testimony

that he was ready to proceed with trial.3




     3
      This testimony did not address the records in any way.
Moreover, accepting Chilton’s allegations as true, he believed that
a continuance was not a possibility at the time of his testimony.

                                    - 10 -
           Thus,   both   parties    submitted   detailed   and   supported

statements on the issue of whether Chilton’s attorney informed him

that a continuance was not a possibility and that he should proceed

to trial without the records.          The state court did not hold a

hearing and did not make findings on this issue, resting instead on

the unreasonable conclusion that the doctors did not want to

evaluate the jail records and the somewhat irrelevant conclusions

that Chilton’s attorney reasonably relied on the court’s statement

that the records had not been filed and that Chilton testified he

was ready for trial.

           Even if Chilton proves that his attorney improperly

convinced him to forego a continuance, he must also show that he

was prejudiced by this action.       While the state court unreasonably

concluded that the doctors did not feel that the records would have

been helpful, there remains a question as to whether the records

would have actually altered the doctors’ conclusions.             While the

records   certainly   show   that    Chilton   was   suffering    from   some

psychological problems, it is unclear whether this information

would actually lead psychologists to determine that Chilton was

insane or whether the jury would be moved by this evidence.

However, neither the state court nor the district court fully

addressed the prejudice prong of this claim.

           Accordingly, we conclude that the state court’s factual

findings are, in part, unreasonable and, in part, irrelevant.


                                    - 11 -
Further, the state court failed to make a factual finding on the

central issue of what Chilton’s attorney told him regarding the

possibility of a continuance. Thus, we vacate the district court’s

order and remand for a hearing to determine whether Chilton’s

attorney acted unreasonably and whether Chilton was prejudiced

thereby.



                                       III.

            With    regard     to   Chilton’s   remaining     claims,    we   have

carefully considered his filings, as well as the entire record, and

we conclude that the district court did not commit reversible error

in denying these claims.            Accordingly, we affirm the denial of

these    claims    for   the   reasons   stated    by   the   district    court.

Chilton v. True, No. 3:05-cv-00490-JRS (E.D. Va. May 18, 2006). We

deny Chilton’s motions for application of funds, expansion of the

certificate of appealability, suspension of the briefing order, and

inspection of the records.          We grant Chilton’s motion to amend his

reply brief and deny his motion to file a pro se supplemental

brief.   We deny his motion to appoint counsel as moot.            We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                           AFFIRMED IN PART;
                                                VACATED AND REMANDED IN PART

                                      - 12 -
