UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TONY LESLIE FRY,
Petitioner-Appellant,

v.
                                                                     No. 98-8
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-97-654-AM)

Argued: September 24, 1998

Decided: October 26, 1998

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Murnaghan and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Michele Jill Brace, VIRGINIA CAPITAL REPRESEN-
TATION RESOURCE CENTER, Richmond, Virginia, for Appellant.
Katherine P. Baldwin, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF
& GIORDANO, P.C., Virginia Beach, Virginia, for Appellant. Mark
L. Earley, Attorney General of Virginia, OFFICE OF THE ATTOR-
NEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Tony Leslie Fry appeals an order of the district court dismissing his
petition for a writ of habeas corpus,1 which challenged his Virginia
conviction for capital murder and resulting death sentence. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998). 2 Fry principally con-
tends that the district court erred in holding several claims procedur-
ally defaulted and in denying relief on his claim of constructive denial
of counsel. For the reasons set forth below, we deny Fry's motion for
a certificate of appealability and dismiss the appeal.

I.

On February 21, 1994, Fry and Brad Hinson test-drove a Ford
Explorer with the purpose of stealing it. They had formulated a plan
to kill any salesperson that insisted on coming with them. When sales-
man Leland A. Jacobs did accompany them, they drove to a dirt road,
_________________________________________________________________
1 Fry named Ronald Angelone, Director of the Virginia Department of
Corrections, as Respondent in his petition. For ease of reference, we refer
to Respondent as "the Commonwealth" throughout this opinion.
2 Because Fry's petition for a writ of habeas corpus was filed on Sep-
tember 8, 1997, subsequent 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 amendments to§ 2254 effected by
the AEDPA govern the resolution of this appeal. See Green v. French,
143 F.3d 865, 868 (4th Cir. 1998); see also Lindh v. Murphy, 117 S. Ct.
2059, 2067-68 (1997).

                    2
where Fry shot Jacobs in the back. As Jacobs pleaded for his life, he
was shot nine more times, tied to the Explorer by his necktie, and
dragged more than 600 feet. Jacobs was in such excruciating pain that
he begged Fry to kill him. The last shot was then fired into Jacobs'
face at close range. Jacobs eventually died from the gunshot wounds.

Following his arrest and subsequent indictment, Fry pled guilty to
capital murder, robbery, and two counts of illegal use of a firearm.
Following a penalty hearing, a judge of the Chesterfield County Cir-
cuit Court imposed the death penalty, finding that the crime was out-
rageously and wantonly vile because Fry's conduct involved an
aggravated battery to the victim. See Va. Code Ann. § 19.2-264.2
(Michie 1995). Fry challenged his sentence in the Supreme Court of
Virginia, arguing only that the death sentence was excessive and dis-
proportionate to the sentence imposed in similar cases. The Supreme
Court of Virginia affirmed, and the United States Supreme Court
denied certiorari. See Fry v. Commonwealth, 463 S.E.2d 433 (Va.
1995), cert. denied, 517 U.S. 1110 (1996).

Fry then filed a petition for a writ of habeas corpus in state court,
raising numerous claims: (I) Virginia's capital sentencing statute was
unconstitutional as applied; (II) the sentencing court adopted an
unconstitutional presumption in favor of death and used an unautho-
rized weighing system for sentencing; (III) the court unconstitution-
ally considered unadjudicated criminal conduct during sentencing;
(IV) the Supreme Court of Virginia conducted inadequate appellate
review; (V) statements made by Fry after he was taken into custody
were improperly introduced into evidence during the penalty phase;
(VI) Fry was denied constitutionally effective assistance of trial and
appellate counsel; (VII) the Supreme Court of Virginia failed to
require counsel to submit a brief in compliance with Anders v.
California, 386 U.S. 738, 744 (1967); (VIII) Virginia disproportion-
ately and discriminatorily applied the death penalty to Fry; and (IX)
the death penalty is cruel and unusual punishment.

The Commonwealth moved to dismiss Fry's state petition, arguing
that Claim VI was without merit and that all of the remaining issues
raised were procedurally barred. Without conducting a hearing, the
Supreme Court of Virginia entered an order summarily denying the
petition. The court ruled that Claims I, II, III, IV, V, VII, VIII, and

                     3
IX were procedurally barred under the rule set forth in Slayton v.
Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding that issues that
could have been but were not raised at trial or on direct appeal will
not be considered in habeas review); that Claims II, IV, VII, and VIII
were barred under the rule set forth in Hawks v. Cox, 175 S.E.2d 271,
274 (Va. 1970) (providing that state habeas court will not consider
previously adjudicated claims); and that Claims I, V, VII, VIII, and
IX were barred by the rule set forth in Peyton v. King, 169 S.E.2d
569, 571 (Va. 1969) (explaining that a voluntary guilty plea is a
waiver of all nonjurisdictional challenges to the conviction). Addi-
tionally, the claim of ineffective assistance of counsel--Claim VI--
was found to be without merit.

Fry filed a federal habeas corpus petition on September 8, 1997.
Concluding that Virginia satisfied the opt-in requirements of the
AEDPA, and applying the more stringent review provisions of § 107
of the AEDPA, the district court dismissed the petition, reasoning that
the majority of Fry's claims were procedurally defaulted and that
Fry's claims of ineffective assistance of counsel lacked merit.3

II.

Absent cause and prejudice or a miscarriage of justice, a federal
court sitting in habeas may not review a constitutional claim when a
state court has declined to consider its merits on the basis of an ade-
quate and independent state procedural rule. See Harris v. Reed, 489
U.S. 255, 262 (1989). Such a rule is adequate if it is regularly or con-
_________________________________________________________________
3 We have not yet decided whether the provisions contained in § 107
of the AEDPA apply to Fry, who filed his state habeas petition on May
24, 1996. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996)
(noting that it is undecided whether the procedures established by the
Commonwealth for the appointment, compensation, and payment of rea-
sonable litigation expenses of competent counsel satisfy the statutory
opt-in requirements of § 107, which would render those provisions appli-
cable to indigent Virginia prisoners seeking federal habeas relief from
capital sentences if an initial state habeas petition was filed after July 1,
1992). And, because Fry is not entitled to relief under the relatively more
lenient standards of § 2254 as amended by the AEDPA, we need not
reach this issue.

                    4
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).

Fry contends that the district court erred in concluding that Claims
I, II, III, and VII were procedurally defaulted. He points to the fact
that the Supreme Court of Virginia cited Hawks as a basis for dis-
missal of these claims in its order denying his petition for state habeas
corpus relief. And, he correctly explains that under Virginia law,
Hawks stands for the proposition that previously adjudicated claims
will not be reconsidered by a state habeas court on collateral review.
See Hawks, 175 S.E.2d at 274. Thus, Fry asserts, the citation to
Hawks conclusively demonstrates that these claims were decided on
their merits on direct review and therefore that the district court erred
in holding them to be procedurally defaulted. See Correll v.
Thompson, 63 F.3d 1279, 1289 n.8 (4th Cir. 1995). On the other hand,
we note that when addressing these claims, the Supreme Court of Vir-
ginia also cited Slayton. That citation would seem to warrant just the
opposite conclusion--that the claims had not been decided on direct
review. See Mu'Min v. Pruett, 125 F.3d 192, 197 (4th Cir.), cert.
denied, 118 S. Ct. 438 (1997). However, we need not interpret the
apparently contradictory application of these procedural rules
because, as we explain below, the claims in question are clearly with-
out merit. See Lambrix v. Singletary, 117 S. Ct. 1517, 1523 (1997)
(explaining that concerns for judicial economy justify denying an eas-
ily resolved federal habeas claim without deciding whether the claim
is procedurally defaulted when that question involves complicated
state-law issues).

A.

In a Virginia capital case, the death penalty may not be imposed
unless the court or jury first concludes that the prosecution has proven
an aggravating factor. See Va. Code Ann.§ 19.2-264.2. Even after
such a conclusion, a sentence of life imprisonment rather than death
may be imposed even if there is little or no mitigating evidence. See
id. Here, the relevant portion of the sentencing judge's explanation of
why he imposed the death penalty was as follows:

                    5
          The Court must find in order to impose the death penalty
          one of several factors, and then and only then, should it even
          consider mitigating circumstances .... The Court has done
          that. The Court has determined that your conduct was outra-
          geously and wantonly vile, ... and that you committed an
          aggravated battery which is far beyond battery as we know.
          [Eleven] bullets, and in a person's body. The Court has con-
          sidered the mitigation. I believe as even your counsel
          pointed out, that Dr. Noles and Dr. Bright have gone beyond
          the call. But this Court cannot find that the statutory mitiga-
          tion, the nonstatutory mitigation, or the mental mitigation is
          sufficient for this Court not to impose the penalty of death.
          It's the opinion of this Court, and it is the order of this Court
          that you be sentenced to death in accordance with the law
          of this State.

J.A. 55-56 (emphasis added). Fry contends that the emphasized words
demonstrate that once the sentencing judge found the existence of an
aggravating factor, he shifted the burden to Fry to prove that the death
penalty should not be imposed. We conclude, however, that a reason-
able jurist could interpret the judge's comments to reflect only that he
considered and weighed all of the evidence in this case and deter-
mined, despite the presence of some mitigating evidence, that imposi-
tion of the death penalty was appropriate. See 28 U.S.C.A.
§ 2254(d)(1); Green v. French, 143 F.3d 865, 870 (4th Cir. 1998)
(discussing application of 28 U.S.C.A. § 2254(d)(1)). Accordingly,
we cannot grant relief on this claim.

B.

Fry next maintains that his constitutional rights were violated when
the Supreme Court of Virginia conducted an inadequate mandatory
proportionality review of his sentence by (1) failing to consider both
the crime and the defendant; (2) focusing on whether Fry was eligible
for the death penalty, rather than on whether the death penalty was the
appropriate sentence; (3) failing to provide notice of the characteris-
tics it considered for the proportionality review; (4) failing to review
Fry's sentence with great rigor; and (5) failing to consider all of the
evidence. These claims are not cognizable in a federal habeas corpus
proceeding. See Pulley v. Harris, 465 U.S. 37, 50-51 (1984);

                    6
Buchanan v. Angelone, 103 F.3d 344, 351 (4th Cir. 1996), aff'd, 118
S. Ct. 757 (1998).

C.

Fry also contends that the Supreme Court of Virginia failed to
require counsel to submit a brief in compliance with Anders v.
California, 386 U.S. 738, 744 (1967). Anders outlines the circum-
stances under which an appellate court may grant appointed counsel's
motion to withdraw from representation of a defendant who desires
to appeal. The following requirements must be met: Counsel, having
determined that an appeal would be frivolous, must submit to his cli-
ent and the court a brief addressing all issues that might arguably give
rise to an appeal; the defendant must be given an opportunity to raise
any issues of his choosing; and the court must determine, after a full
review of the record, that an appeal would be wholly frivolous. See
id. The Anders brief serves the twin functions of "provid[ing] the
appellate courts with a basis for determining whether appointed coun-
sel have fully performed their duty to support their clients' appeals to
the best of their ability" and aiding the courts"in making the critical
determination whether the appeal is indeed so frivolous that counsel
should be permitted to withdraw." McCoy v. Court of Appeals, 486
U.S. 429, 439 (1988).

Here, of course, Fry's counsel did not move to withdraw, but in
fact submitted a brief addressing what counsel considered his strong-
est position; counsel also presented an oral argument on Fry's behalf.
Therefore, Fry's characterization of this claim as presenting an
Anders issue is incorrect, and we cannot say that the state-court deci-
sion to deny relief on this claim was unreasonable. See 28 U.S.C.A.
§ 2254(d)(1). That is not to say that Fry is foreclosed from asserting
a claim of ineffective assistance of appellate counsel. Indeed, Fry
advances such a claim, and we address it below in Section III.

D.

Fry further maintains, without offering any meaningful support,
that Virginia disproportionately and discriminatorily applied the death
penalty to him based on his gender and indigency in violation of his
constitutional rights. We cannot conclude, however, that the state-

                    7
court rejection of this claim was unreasonable. See 28 U.S.C.A.
§ 2254(d)(1).

III.

Fry also contends that he was constructively denied assistance of
appellate counsel when the only argument that appellate counsel
advanced on his behalf was that the death sentence was excessive and
disproportionate to the sentence imposed in similar cases.

Fry is constitutionally entitled to the effective assistance of counsel
on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985).
Accordingly, he is entitled to habeas relief if he can establish that
appellate counsel's performance "fell below an objective standard of
reasonableness" and "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 466 U.S. 668, 688,
694 (1984). When a defendant suffers an actual or constructive com-
plete deprivation of counsel during the appellate stage, the defendant
need not demonstrate that he was prejudiced thereby; rather, prejudice
is presumed. See Penson v. Ohio, 488 U.S. 75, 88 (1988).

Although it is undisputed that Fry's counsel argued to the Supreme
Court of Virginia that Fry's death sentence should be overturned
because it was excessive and disproportionate to the sentence
imposed in similar cases, Fry claims those actions did not advance his
"appeal," but at most only assisted him in the separate process of stat-
utory mandatory review.4 Fry contends, therefore, that when counsel
advanced the disproportionality argument without arguing any issues
that would not have been automatically reviewable, Fry was com-
pletely denied assistance of appellate counsel, and, considering the
then-existing Supreme Court precedent, no reasonable jurist could
have found to the contrary.

Fry's argument notwithstanding, counsel does not render ineffec-
tive assistance by making a reasonable strategic choice to appeal par-
ticular errors and not to appeal other errors. See Jones v. Barnes, 463
U.S. 745, 751 (1983); see also id. (noting"the importance of winnow-
ing out weaker arguments on appeal and focusing on one central issue
_________________________________________________________________
4 Indeed, Fry argues that counsel's argument was of no assistance
because the Supreme Court of Virginia was already bound to review the
issue that counsel "raised."

                    8
if possible"). Although Fry maintains that Jones does not apply
because the argument counsel advanced on his behalf was not techni-
cally an "appellate" argument, he offers no Supreme Court authority
that would foreclose the application of the principles underlying
Jones to these facts. Accordingly, we conclude that in the absence of
controlling Supreme Court precedent, a reasonable jurist could decide
that the presentation by Fry's counsel to the Supreme Court of Vir-
ginia of only the disproportionality issue did not constructively
deprive Fry of assistance of appellate counsel. See Green, 143 F.3d
at 870 (explaining that analysis of whether state-court ruling is con-
trary to, or an unreasonable application of, federal law depends upon
an analysis of relevant Supreme Court precedent). Accordingly, the
state-court decision denying relief on this claim was neither unreason-
able nor contrary to law. See 28 U.S.C.A.§ 2254(d)(1).5

IV.

Following the dismissal of his federal habeas corpus petition, Fry
moved this court for a certificate of appealability. See 28 U.S.C.A.
§ 2253(c)(2) (West Supp. 1998). We conclude that Fry has failed to
make "a `substantial showing of the denial of a constitutional right.'"
Murphy v. Netherland, 116 F.3d 97, 101 (4th Cir.) (quoting
§ 2253(c)(2)), cert. denied, 118 S. Ct. 26 (1997) (emphasis omitted).
Therefore, we dismiss Fry's appeal.

DISMISSED
_________________________________________________________________

5 Fry also argues that the district court erred in reviewing his nonde-
faulted claims under the standards of review set forth in § 2254(d)(1) as
amended by the AEDPA. He maintains that because the state court ruled
on those claims in a summary order, there was no"adjudicat[ion] on the
merits" of those claims within the meaning of§ 2254(d). However, this
court recently has held that even when the state court has disposed of
claims in a summary order, a writ may not issue unless, "after an inde-
pendent review of the applicable law," we conclude that the resolution
of the "claims was `contrary to, or involved an unreasonable application
of clearly established Federal law, as determined by the Supreme Court
of the United States.'" Wright v. Angelone , 151 F.3d 151, 157 (4th Cir.
1998) (quoting 28 U.S.C.A. § 2254(d)); see Cardwell v. Greene, 152
F.3d 331, 339 (4th Cir. 1998).

                    9
