UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARTHUR RAY JENKINS, III,
Petitioner-Appellant,

v.
                                                                       No. 98-13
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-96-934-3)

Argued: October 29, 1998

Decided: January 12, 1999

Before ERVIN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and dismissed in part by unpublished opinion. Judge
Niemeyer wrote the opinion, in which Judge Ervin and Senior Judge
Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Charles Frederick Witthoefft, HIRSCHLER,
FLEISCHER, WEINBERG, COX & ALLEN, Richmond, Virginia,
for Appellant. Robert Quentin Harris, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: Ian J. Wilson, HIRSCHLER, FLEISCHER,
WEINBERG, COX & ALLEN, Richmond, Virginia, for Appellant.
Mark L. Earley, Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Arthur Ray Jenkins, III, was convicted by a jury in Virginia state
court of murdering Floyd Jenkins, his uncle, and Lee Brinklow. He
was given two death sentences. The Virginia Supreme Court affirmed
the convictions and death sentences. Jenkins v. Commonwealth, 423
S.E.2d 360 (Va. 1992). After Jenkins exhausted his available state
remedies, he petitioned the United States District Court for the East-
ern District of Virginia for habeas corpus relief under 28 U.S.C.
§ 2254. The district court dismissed the petition and this appeal fol-
lowed. On appeal, Jenkins contends:

           (1) that the Commonwealth of Virginia denied Jenkins
          due process by failing to disclose significant exculpatory
          evidence relating to a jailer who sexually abused Jenkins
          and then testified against him;

           (2) that he was denied due process by the ineffectiveness
          of his trial counsel in failing to obtain and make available
          to his expert witness his complete Department of Correc-
          tions medical records about his mental health;

           (3) that he was denied a competent mental health expert
          and the right to an adequate mental health evaluation at trial,
          in violation of the holding of Ake v. Oklahoma , 470 U.S. 68
          (1985); and

                    2
           (4) that the admission at trial of two videotaped confes-
          sions violated his Fifth Amendment and Fourteenth Amend-
          ment due process rights.

The district court granted Jenkins a certificate of appealability with
respect to the first two claims and denied the certificate with respect
to the second two. For the reasons that follow, we affirm the district
court's ruling on the first two claims and deny Jenkins' motion for a
certificate of appealability on the second two, dismissing the appeal
as to them.

I

The facts, as related by the Virginia Supreme Court, are as follows:

           There is virtually no conflict in the facts relating to the
          commission of these crimes. The defendant has not denied
          committing the homicides. Indeed, he admitted the killings
          to almost everyone with whom he talked subsequent to the
          day in question.

          * * *

           During October 12, the day the crimes were committed,
          the defendant, age 21, had been drinking whiskey and beer
          with his younger brother, Kevin Frame. In the early evening,
          defendant engaged in a fight with another man outside a
          local restaurant. The defendant's mother and grandmother
          drove the defendant and Frame away from the restaurant
          and to the vicinity of the home where defendant was resid-
          ing on Route 617 in Warren County. The defendant had
          lived there for about one month following his release from
          prison on September 6, 1990. The home was owned by Eliz-
          abeth Morris, defendant's aunt. Brinklow, age 69, and the
          uncle, Floyd Jenkins, age 72, also lived in the house.

           Near 10:00 p.m., defendant and Frame entered the home
          through the front door. Brinklow was sitting on a couch in
          the living room. Brinklow told Frame to leave the house

                     3
because the aunt, who was not present, did not allow Frame
inside. An argument ensued between Brinklow and the
defendant. The defendant went to Brinklow's bedroom,
obtained a .22 rifle capable of firing only one shot at a time,
and returned to the living room. The defendant loaded the
rifle and shot Brinklow once in the face; the shot did not kill
him.

 The defendant walked to the "back bedroom" where the
uncle was lying in bed listening to a radio. After the defen-
dant reloaded the rifle, he "stuck it" to the uncle's head. The
uncle "grabbed it" and defendant said, "Let go before I kill
you." The uncle "let go" and the defendant"stuck the gun
to his head" and shot him. The uncle began "gagging," and
defendant returned to the living room.

 The defendant asked Brinklow the location of Brinklow's
hand gun, and Brinklow responded that the weapon was in
Brinklow's pick-up truck parked outside the house. Order-
ing Frame to "watch" the uncle, defendant"took" Brinklow
to the truck, where the hand gun could not be located.

 Defendant escorted Brinklow back into the house where
defendant went to the kitchen and procured two "butcher
knives." Defendant gave one to Frame and retained the
other.

 Defendant returned to the uncle's bedroom where he was
still "gagging." By this time, Brinklow had been brought
into the same bedroom where he laid on the floor. Defen-
dant shot the uncle again in the head and "went berserk." He
began stabbing the uncle with the knife until his"guts came
out."

 As defendant was picking up the "guts" and throwing
them onto the uncle's body, Frame said, "Shoot him," refer-
ring to Brinklow. Brinklow pleaded with defendant not to
kill him, stating that he "loved" defendant. Defendant
"stuck" the rifle to Brinklow's head and "pulled the trigger."

          4
          The defendant and Frame carried the victims' bodies out
         the front door of the house and laid them in the bed of Brin-
         klow's truck. The defendant and Frame returned to the
         house where they broke into the aunt's locked bedroom. The
         aunt had stored sums of money in various items in her bed-
         room; these items, with the money, were loaded into the
         truck. The evidence also showed that, at some point, defen-
         dant and Frame took the victims' wallets as well as other
         personal items.

          Defendant drove the truck away from the house, intend-
         ing to drive "to the police station." Frame persuaded defen-
         dant to turn in a different direction as they left the premises.
         A short distance from the residence, defendant lost control
         of the truck, which left the road and came to rest in a creek.

          Defendant and Frame walked back to the home and
         attempted to clean the rooms, which were spattered with
         blood and contained body parts. The pair then left the prem-
         ises, and defendant fled to the southwestern part of the State.

          The aunt returned to her home about 1:50 a.m. on October
         13 to find it in disarray and her funds missing. A short time
         later, the truck containing the victims' bodies was found by
         the police. Defendant was arrested about 11:30 p.m. on that
         day near Abingdon.

          Autopsies of the victims' bodies showed that Brinklow
         sustained four gunshot wounds to the head, two of which
         were fatal. The uncle sustained three gunshot wounds to the
         head, two being fatal. He also sustained seven stab wounds
         to the abdomen, which injured vital organs and which pene-
         trated the body up to a depth of eight inches.

Jenkins v. Commonwealth, 423 S.E.2d at 363-64.

II

Jenkins contends first that he was denied due process based on the
sexually abusive conduct of the head jailer at the Washington County

                   5
(Virginia) Jail, Robert A. Clendenen, which occurred during Jenkins'
incarceration for previous crimes. Jenkins contends that Clendenen
used his position as head jailer to obtain sexual favors from prisoners,
including Jenkins, by granting them favors and providing them with
illegal drugs. Jenkins asserts that this sexual abuse affected his state
of mind and contributed to the murders.

Independent of any complaint by Jenkins, Clendenen was investi-
gated by the FBI and indicted by a federal grand jury for "intimidat-
ing, coercing, and cajoling" inmates at Washington County Jail to
engage in homosexual relations with Clendenen. The United States
dropped the sexual abuse charges against Clendenen in exchange for
a guilty plea to embezzlement. In any event, neither the indictment
nor the FBI reports name Jenkins as a victim of Clendenen's alleged
crimes.

Jenkins contends that the Commonwealth knew of Clendenen's
improper sexual conduct against Jenkins and failed to disclose it to
him, thereby denying him that evidence at trial. Jenkins also argues
that Clendenen lied about the relationship during the sentencing phase
of his trial, and the Commonwealth made use of the lies.

The Commonwealth asserts that Jenkins made this argument for
the first time in his federal habeas petition and that the claims are
therefore procedurally defaulted. In addition, the Commonwealth
points out that the district court appointed an expert on Jenkins'
behalf to investigate the Virginia Department of Corrections, the
Washington County Jail, the Washington County and Warren County
Commonwealth Attorneys' Offices, the Attorney General, the State
Police, the FBI, and the federal grand jury. It maintains that this
investigation revealed no evidence that Clendenen had any improper
relationship with Jenkins. The Commonwealth also notes that the FBI
investigation corroborates this.

Because Jenkins did not make this argument in any state court, it
is procedurally defaulted, and Jenkins is barred from raising it for the
first time during a habeas proceeding in federal court unless he can
show "cause for his failure to develop the facts in state-court proceed-
ings and actual prejudice resulting from that failure." Keeney v.
Tamayo-Reyes, 504 U.S. 1, 11 (1992). "Cause may be established for

                    6
a procedural default where an objective impediment made compliance
with the procedural rule impossible." Clanton v. Muncy, 845 F.2d
1238, 1241 (4th Cir. 1988) (citing Murray v. Carrier, 477 U.S. 478
(1986)). But even where there is such an objective impediment, the
petitioner may not rely on it if the information sought was "reason-
ably available" to him. Barnes v. Thompson , 58 F.3d 971, 976 (4th
Cir. 1995). Jenkins' default will also be excused"if he can show that
a fundamental miscarriage of justice would result from failure to hold
a federal evidentiary hearing." Keeney, 504 U.S. at 12.

The information regarding Clendenen's alleged abuse of Jenkins
was known to Jenkins, and therefore it was obviously readily avail-
able to him. Jenkins nevertheless argues that he was incapable of
bringing the allegations to the attention of his state trial counsel, state
appellate counsel, and state habeas counsel because he has a mental
illness that prevents him from sharing such personal traumas. This
argument, however, is not consistent with Jenkins' affidavit filed in
this case in which he gave his reasons for not telling anyone about
Clendenen's abuse. In the affidavit, Jenkins states:

          I did not advise my trial attorneys for my state habeas coun-
          sel about what happened with Clendenen during my time at
          the Washington County Jail for a number of reasons. First,
          I did not know it was important or had anything to do with
          my case and I was not asked about it. I did not tell my cur-
          rent attorneys about this until they asked me. Second, as a
          prisoner, it is dangerous to talk about a guard, or to discuss
          homosexuality. Finally, . . . I thought that [Clendenen] was
          my friend.

None of these reasons appears to be related to any mental illness.
Moreover, even if Jenkins had not made this admission, there is no
evidence in the record to suggest that he was mentally incapable of
revealing his personal sexual history. He discussed other homosexual
encounters both at trial and in his conversations with Dr. Gary L.
Hawk, an expert psychologist who testified on Jenkins' behalf at trial.
For example, he related at trial that he was raped by his uncle, Floyd
Jenkins, when he was six, that he had been raped by another uncle,
and that he had homosexual liaisons with other students at state insti-
tutions. Even if mental illness were a ground excusing procedural

                     7
default, a matter that we do not here decide, Jenkins has not estab-
lished any evidence that mental illness was a cause for his default.

We are also satisfied that no fundamental miscarriage of justice
will result from the failure to hold a federal evidentiary hearing on
this point. Even with such evidence as Jenkins claims should have
been presented on his behalf, the reliability of the state trial remains.
The undisputed facts establish that Jenkins committed two brutal mur-
ders.

To the extent that Jenkins' claim regarding the Commonwealth's
suppression of Clendenen's sexually abusive conduct rests on Brady
v. Maryland, 373 U.S. 83, 87 (1963) (holding"that the suppression
by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or
to punishment"), his argument would fail for the same reasons that his
claim is defaulted. "[W]here the exculpatory information is not only
available to the defendant but also lies in a source where a reasonable
defendant would have looked, a defendant is not entitled to the benefit
of the Brady doctrine." United States v. Wilson, 901 F.2d 378, 381
(4th Cir. 1990). There is no evidence in this record that any officer
or agent of the Commonwealth, other than Clendenen, knew anything
about the relationship between Jenkins and Clendenen. Even if there
were such evidence, Jenkins would have no Brady claim because he
had full knowledge of the information and, indeed, produced it in this
case when asked by his attorney.

III

Jenkins next claims that he received ineffective assistance of coun-
sel because his counsel did not obtain 800 pages of Virginia Depart-
ment of Corrections' medical records relating to him.

Although Jenkins' counsel made an effort to obtain all Jenkins'
medical records so that Dr. Gary L. Hawk, the expert psychologist
retained by counsel, could perform a mental evaluation of Jenkins,
counsel did not obtain a batch of Department of Corrections' records
before trial. As a consequence, Dr. Hawk filed his report about Jen-
kins with the notation that he was still awaiting the Department of

                     8
Corrections' records. Explaining the significance of the records to the
Virginia trial court, Jenkins' counsel stated:

          Dr. Hawk said that while he feels relatively certain that the
          eventual conclusions would not change based upon the
          receipt of DOC records, because he thinks he knows what
          DOC will end up saying, he does not feel comfortable with
          submitting a report to which he would later be held that
          involves a five-year hunk of records that he doesn't have.

Dr. Hawk stated that he felt the information was important because
Jenkins had been incarcerated for much of the time between ages 12
and 21, the age when he committed the double murders in this case.

Since the trial in this case, Dr. Hawk has reviewed the Department
of Corrections' records and, in a statement filed in support of Jenkins'
petition with the district court, said:

          The DOC Records would have been highly relevant to my
          evaluation of Mr. Jenkins. The 1991 evaluation of Mr. Jen-
          kins was incomplete because of the lack of the DOC
          Records and the lack of a consulting psychiatrist to address
          the matters reflected in the records that were not provided
          to me by trial counsel.

In response to Jenkins' claim, the Commonwealth notes that the
district court found that the efforts of Jenkins' counsel were reason-
able and that Jenkins was not prejudiced by not having the 800 pages.
The Commonwealth also argues that Jenkins misrepresents the nature
of the Department of Corrections' records. While it acknowledges
that the 800 pages include "some psychological or psychiatric evalua-
tions or reports," it asserts that most of the records relate to "Jenkins'
abysmal prison record" over the years. The Commonwealth points out
further that Dr. Hawk recognized all of the facts contained in the
records and learned little new from them. The jury at Jenkins' trial
was advised at length about the circumstances of Jenkins' upbringing,
his history of neglect, physical abuse, sexual abuse, and institutional-
izations. Finally, the government points out that Jenkins had the bene-
fit of extremely experienced counsel. One of them has been described
by this court as "one of the experts in the field of capital cases, [who]

                     9
had handled more death penalty litigation than any other private attor-
ney in Virginia, and [who] was one of the most experienced criminal
lawyers in Virginia." Turner v. Williams, 35 F.3d 872, 900 n.24 (4th
Cir. 1994) (internal quotation marks and citations omitted).

In order to demonstrate ineffective assistance of counsel, Jenkins
must show both (1) that his counsel's performance was deficient and
(2) that the deficient performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate
counsel's deficiency, Jenkins must show that counsel's representation
of him "fell below an objective standard of reasonableness," making
"errors so serious that counsel was not functioning as the `counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 688, 687.
And to demonstrate the prejudice prong, Jenkins must show that
"counsel's errors were so serious as to deprive[Jenkins] of a fair trial,
a trial whose result is reliable." Id. at 687. Stated otherwise, Jenkins
must show that "there is a reasonable probability that, but for coun-
sel's unprofessional errors, the result of the proceeding would have
been different." Id. at 694. In this case, we conclude that Jenkins has
satisfied neither prong.

The failure of Jenkins' counsel to acquire the Department of Cor-
rections records must be looked at in the context of counsel's overall
investigation of Jenkins' competency and state of mind. To investi-
gate those matters, counsel retained Dr. Hawk, who is an Associate
Professor of Behavior Medicine and Psychiatry at the University of
Virginia, a clinical psychologist, and director of psychology at the
Institute of Law and Psychiatry and Public Policy at the University of
Virginia. Dr. Hawk received what he described as a"tremendous vol-
ume" of records. He also had the assistance of Dr. Janet Warren, who
holds a doctorate degree in social work. Dr. Warren, like Dr. Hawk,
is well qualified, having conducted forensic evaluations in 45 capital
cases. Dr. Warren testified that she conducted an extensive review of
Jenkins' records including a review of "all of the psychiatric records."

While Dr. Hawk informed Jenkins' counsel before trial that Hawk
would have preferred to have the Department of Corrections records,
he noted that the records were unlikely to change his conclusions.
Given this information, counsel could reasonably have made the judg-
ment not to use their limited time tracking down Department of Cor-

                     10
rections' records when other matters for the defense had to be
completed. Even looking in hindsight, we cannot conclude that coun-
sel's time would have been better spent obtaining the records than
preparing for trial in other ways. Accordingly, we cannot conclude
that Jenkins' counsel were ineffective or deficient, particularly when
we apply the "heavy measure of deference to counsel's judgments"
required in assessing his performance. See Strickland, 466 U.S. at
691; Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995).

Jenkins has also failed to demonstrate that the alleged deficiency
of his counsel's performance resulted in prejudice to his defense. The
district court correctly observed:

          Dr. Hawk's expert opinion was informed and had a well
          documented factual basis that has not been substantially
          altered by the missing records. The missing records do not
          provide substantially different information from that which
          Dr. Hawk possessed at the time of his testimony. Indeed, Dr.
          Hawk himself makes no statement in his affidavit attached
          to petitioner's habeas corpus petition that the additional
          records support an insanity defense. . . . Furthermore, much
          of the information provided in the records supports the
          Commonwealth's evidence of future dangerousness. The
          reports make repeated references to Jenkins' aggressiveness
          demonstrated in assaults on both peers and staff, inappropri-
          ate sexual behavior, escapes and escape attempts.

Jenkins argues that the Department of Corrections records would
have alerted his defense team to the need to retain a psychiatrist. But
he provides no indication that the retention of a psychiatrist would
have altered the outcome of Jenkins' trial. See Strickland, 466 U.S.
at 694 (holding that to demonstrate prejudice, "defendant must show
that there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different").

IV

Jenkins next claims that he was denied a competent mental exami-
nation in violation of Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (hold-
ing that when sanity is an issue, the state must"assure the defendant

                    11
access to a competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and presentation of
the defense"), because he was assisted by a psychologist rather than
a psychiatrist. After his counsel were appointed to represent Jenkins,
they retained Dr. Hawk, a clinical psychologist, to perform a mental
evaluation of Jenkins. When the Virginia trial judge asked counsel
whether Jenkins should be examined by a psychiatrist, counsel indi-
cated that a psychologist's examination would be sufficient and
assured the court that there was a psychiatrist on staff with Dr. Hawk
at the Blue Ridge Hospital at the Institute of Law and Psychiatry. The
court did not deny Jenkins a psychiatrist. On the contrary, Jenkins,
through his counsel, decided that a psychologist would be a more
effective expert. Having received the assistance of the expert of his
choice, Jenkins cannot now claim that he was deprived access to an
appropriate expert on his mental state.

To the extent that Jenkins challenges the opinion reached by Dr.
Hawk, Jenkins has no Ake claim. "[T]he decision in Ake reflects pri-
marily a concern with ensuring the defendant access to a psychiatrist
or psychologist, not with guaranteeing a particular substantive result."
Wilson v. Greene, 155 F.3d 396, 401 (4th Cir.), cert. denied, 119
S. Ct. 536 (1998) (emphasis in original). Ake does not entitle a defen-
dant to the effective assistance of an expert witness selected or
assigned to him. Id. Because Jenkins had access to a competent men-
tal health expert, his Ake rights were not violated.

V

Finally, Jenkins claims that the trial court denied his Fifth Amend-
ment rights by admitting at trial two videotaped confessions. The first
of these confessions was given by Jenkins on October 15, 1990, and
the second, the next day, on October 16, 1990.

Before Jenkins gave the first videotaped confession, a Common-
wealth investigator informed him that he could have an attorney pres-
ent. When Jenkins asked if having an attorney would be helpful, the
investigator responded, "Well, that depends on whether or not you
want to tell the truth." Jenkins then asked,"That ain't going to hurt
me in the courtroom?" The investigator responded,"No. Uh, I told
you evidence is going to prove what is true. And it always helps a fel-

                    12
low to tell the truth. It shows that you're cooperative." Before giving
the second videotaped confession on the next day, Jenkins was given
a more traditional Miranda warning and Jenkins signed a paper waiv-
ing his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444
(1966) (holding that "[p]rior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or appointed").

Jenkins contends that the Commonwealth investigator improperly
advised Jenkins with respect to the first confession that he did not
need a lawyer if he was going to tell the truth. He maintains that a
confession following such a warning is involuntary and therefore in
violation of Jenkins' constitutional rights. Jenkins argues furthermore
that the confession the next day was tainted as the product of the first
improper confession. Jenkins argues for the first time during federal
habeas proceeding that the confessions had a substantial and injurious
impact on the sentencing phase because in the confessions Jenkins
described killing the two victims in graphic detail with little sign of
remorse.

While it is questionable whether the admission of the October 15
confession was accompanied by proper Miranda warnings, the second
confession, given 24 hours later, was accompanied by full Miranda
warnings which Jenkins said he understood, and this is reflected in his
signed waiver. As the Virginia Supreme Court observed in this case,
"`a suspect who has once responded to unwarned yet uncoercive
questioning is not thereby disabled from waiving his rights and con-
fessing after he has been given the requisite Miranda warnings.'"
Jenkins, 423 S.E.2d at 367 (quoting Oregon v. Elstead, 470 U.S. 298,
318 (1985)).

Even if both confessions were erroneously admitted, Jenkins is not
entitled to federal habeas relief. Constitutional error does not require
relief unless the error had a "substantial and injurious effect or influ-
ence in determining the jury's verdict." Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). Jenkins can show no such prejudice. As the Vir-
ginia Supreme Court observed, "[Jenkins] admitted the killings to
almost everyone with whom he talked subsequent to the day in ques-

                     13
tion." Jenkins, 423 S.E.2d at 363. He had confessed to three friends,
to other jail inmates, to those transporting him from the Washington
County Jail, and finally during his testimony at trial. Cf. Cooper v.
Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc) (holding that the
admission of a third challenged confession was harmless). Although
Jenkins claims that the videotaped confessions prejudiced the penalty
phase of his trial, he did not make this argument on direct appeal or
in state habeas proceedings. Having defaulted these claims, he may
not now present them for the first time in a federal habeas corpus
case. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996).

VI

Following dismissal of his federal habeas corpus petition by the
district court, Jenkins moved for a certificate of appealability. The
district court granted the motion with respect to the first two points
discussed in this opinion and denied it with respect to the second two.
Accordingly, we affirm the district court on the first two points, and
we conclude, with respect to the second two, that Jenkins has failed
to make "a substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). Therefore we deny his motion for certificate
of appealability and dismiss the appeal with respect to them.

AFFIRMED IN PART AND DISMISSED IN PART

                    14
