UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CALVIN EUGENE SWANN,
Petitioner-Appellant,

v.
                                                                       No. 98-20
JOHN TAYLOR, Warden, Sussex I
State Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-96-752-R)

Argued: December 2, 1998

Decided: February 18, 1999

Before MICHAEL and TRAXLER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished opin-
ion. Judge Traxler wrote the opinion, in which Judge Michael and
Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Mark Evan Olive, LAW OFFICES OF MARK E.
OLIVE, P.A., Tallahassee, Florida, for Appellant. Donald Richard
Curry, Senior Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF:
Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Richmond, Virginia, for Appellant. Mark L.
Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Calvin Eugene Swann ("Swann"), whom the Commonwealth of
Virginia has sentenced to death and life imprisonment on convictions
for capital murder and robbery, respectively, appeals from a judgment
denying his application for a writ of habeas corpus brought under 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998). For the reasons set forth
below, we affirm in part, vacate in part, and remand with instructions.

I.

The following factual recitation draws primarily from the facts set
forth by the Virginia Supreme Court in Swann v. Commonwealth, 441
S.E.2d 195 (Va. 1994). On the evening of November 7, 1992, Swann
roamed the streets of Danville, Virginia in search of a house to rob
for money to purchase cocaine. He approached the house of Conway
Forrest Richter ("Richter") upon noticing that the front door was
open. Wearing a mask and armed with a shotgun, Swann opened the
storm door to Richter's house and entered the living room, where he
observed Richter eating supper at his kitchen table. Swann pointed his
shotgun at Richter and said, "This is a stickup." Richter reacted by
charging toward Swann, and Swann shot him in the chest from a dis-
tance of eight to ten feet. Richter collapsed on the front porch and
died within thirty minutes. Swann fled the scene after removing
approximately $60 from Richter's wallet.

                    2
In the course of investigating Richter's killing, Danville police sus-
pected Swann and focused their attention on him after learning that
he had disposed of a shotgun several weeks after the killing. During
police questioning, Swann confessed to killing Richter and prepared
a written statement to that effect. He was then indicted by a grand jury
in the Circuit Court of the City of Danville on five charges arising
from the killing, including capital murder and robbery.

The matter proceeded to trial solely on the charges of capital mur-
der and robbery. At the conclusion of the guilt phase, the jury
returned a verdict of guilty on both charges, and fixed Swann's pun-
ishment for robbery at life imprisonment. At the conclusion of the
penalty phase, the jury found there to be a probability that Swann
"would commit criminal acts of violence that would constitute a con-
tinuing serious threat to society." Va. Code Ann.§ 19.2-264.4.C.
(Michie 1995 & Supp. 1998). Based upon that finding, the jury fixed
Swann's punishment for capital murder at death. The trial court there-
after imposed the sentences recommended by the jury. The Virginia
Supreme Court, on direct appeal, affirmed Swann's convictions and
sentences against numerous assignments of error. See Swann, 441
S.E.2d at 207. The United States Supreme Court denied Swann's peti-
tion for a writ of certiorari. See Swann v. Virginia, 513 U.S. 889
(1994).

Swann subsequently sought collateral relief by bringing a petition
for a writ of habeas corpus before the Virginia Supreme Court, which
dismissed the petition in a summary order. In so doing, the court
determined that consideration of many of the claims presented was
barred under the procedural rules set forth in Hawks v. Cox, 175
S.E.2d 271, 274 (Va. 1970) (holding that claims adjudicated on their
merits on direct appeal will not be considered in state habeas pro-
ceeding), and Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974)
(holding that claims that could have been but were not raised on direct
appeal will not be considered in state habeas proceeding). The court
then expressed its finding of "no merit" with respect to Swann's
remaining claims. J.A. 773.

On December 6, 1996, Swann filed the present application in the
district court, seeking a writ of habeas corpus under § 2254.1 The dis-
_________________________________________________________________
1 Because Swann filed his application after the April 24, 1996 effective
date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of

                    3
trict court, adopting the report and recommendation of a magistrate
judge to whom the matter had been referred, entered judgment deny-
ing the application. The district court subsequently denied Swann's
motion to alter or amend the judgment under Rule 59(e) of the Fed-
eral Rules of Civil Procedure. We then granted Swann's application
for a certificate of appealability.

II.

Swann asserts that the trial court's refusal to appoint a psychiatrist
to evaluate him and to assist in the preparation and presentation of his
defense gave rise to a constitutional violation under Ake v. Oklahoma,
470 U.S. 68 (1985). In Ake, the Supreme Court held that when an
indigent criminal defendant's sanity at the time of the offense is likely
to be a significant factor at trial, the Due Process Clause of the Four-
teenth Amendment requires that a state "assure the defendant access
to a competent psychiatrist who will conduct an appropriate examina-
tion and assist in evaluation, preparation, and presentation of the
defense." Id. at 83. The Court further held that such assistance is con-
stitutionally mandated when a capital defendant's future dangerous-
ness is to be a significant factor at the penalty phase of the trial. See
id. at 83-84.

A.

We begin our analysis of Swann's Ake claim by examining the rel-
evant proceedings in the state trial court. Following indictment,
Swann moved under Va. Code Ann. § 19.2-264.3:1.A (Michie 1995
& Supp. 1998) for the appointment of a mental health expert to evalu-
ate him and to assist in the preparation and presentation of his
defense. The trial court granted the motion and appointed Dr. Stanton
_________________________________________________________________
1996, Pub.L. No. 104-132, 110 Stat. 1214, our analysis of the claims
presented herein is governed by §§ 2254(d) and (e) as amended by § 104
of the AEDPA. See Lindh v. Murphy, 117 S. Ct. 2059, 2067-68 (1997).
The Commonwealth does not contend that it has taken the necessary
measures to qualify as an "opt-in" state for purposes of § 107 of the
AEDPA such that the provisions of § 107 apply. See Sexton v. French,
163 F.3d 874, 876 n.1 (4th Cir. 1998).

                    4
E. Samenow ("Dr. Samenow"), a clinical forensic psychologist, for
those purposes.

After conducting a three-day evaluation of Swann, Dr. Samenow
prepared a report in which he noted that Swann had a history of men-
tal illness, for which he had been previously hospitalized. Dr. Same-
now concluded, however, that Swann was "not impaired by mental
illness" at the time that he shot and killed Richter. J.A. 38. In a sepa-
rate report, Dr. Samenow expressed his conclusion that Swann was
"competent to stand trial" on the pending charges. J.A. 39.

Pursuant to Va. Code Ann. § 19.2-264.3:1.E, Swann provided
notice to the trial court of his intention "to present the testimony of
an expert witness to support a claim in mitigation" in case he should
be convicted of capital murder. On the Commonwealth's motion, the
trial court directed that Swann be evaluated by Dr. Arthur Centor
("Dr. Centor"), a clinical forensic psychologist, "concerning the exis-
tence or absence of mitigating circumstances relating to [Swann's]
mental condition at the time of the offense." Va. Code Ann. § 19.2-
264.3:1.F. Dr. Centor evaluated Swann and concluded that Swann
revealed no symptoms of mental illness.

Although the trial court had already appointed Dr. Samenow, who
accordingly evaluated Swann and rendered conclusions regarding his
mental condition, Swann brought a second motion for the appoint-
ment of a mental health expert under Va. Code Ann.§ 19.2-
264.3:1.A. This time, however, Swann explicitly requested the
appointment of a psychiatrist.2 In so doing, Swann noted that his pur-
pose in bringing the motion was not "to obtain a more favorable
report" than that which Dr. Samenow had prepared. J.A. 40. Rather,
Swann requested appointment of a psychiatrist to assist him in the
"presentation of mitigation evidence should [he] be convicted of capi-
tal murder." J.A. 40. In particular, Swann represented that a psychia-
trist was necessary "for further evaluation on the issue of
_________________________________________________________________
2 A psychiatrist is a physician who specializes in "that branch of medi-
cine which deals with the study, treatment, and prevention of mental dis-
orders." Dorland's Illustrated Medical Dictionary 1383 (27th Ed. 1988).
Apparently, Dr. Samenow and Dr. Centor were not physicians with the
right to prescribe medications.

                     5
schizophrenia as it relates to [him] and medications for said disease
and the effects of medications upon [him]. . .." J.A. 40. He argued
that because Dr. Samenow was not a psychiatrist, Dr. Samenow was
"not able nor qualified to examine [Swann] as to these issues, nor tes-
tify to same." J.A. 40. Swann supported this argument with a letter
written by Dr. Samenow to the trial court days before the motion was
filed. In the letter, Dr. Samenow stated in relevant part:

          I recommend that the defense be afforded the opportunity to
          have a psychiatrist examine Mr. Swann. Inasmuch as there
          are issues of medication (surrounding hospitalization and
          other aspects of his functioning), I am not qualified medi-
          cally to render an opinion.

J.A. 42. Swann indicated that Dr. Miller M. Ryans ("Dr. Ryans"), a
psychiatrist who had previously treated him, was"available and will-
ing" to evaluate Swann. J.A. 40.

The trial court ultimately denied Swann's motion for the appoint-
ment of a psychiatrist, explaining that "the Court had previously
appointed a clinical psychologist" to evaluate Swann. J.A. 381. There
is no indication from the record that Swann renewed his motion for
the appointment of a psychiatrist at any point before or during the trial
proceedings. In any event, as will be discussed later in this opinion,
Dr. Ryans did testify in Swann's behalf, thereby making available to
Swann, at trial, testimony from a psychiatrist who was trained and
licensed to deal with aspects of medication relevant to Swann's situa-
tion.

During the penalty phase of the trial, the Commonwealth sought a
jury finding of future dangerousness, see Va. Code Ann. § 19.2-
264.4.C, by presenting extensive evidence of past violent acts com-
mitted by Swann. In particular, the jury heard evidence that Swann
had robbed employees at a fast-food restaurant in May 1974, and that
he had struck an individual while participating in a burglary and
grand larceny in September 1992. The jury also learned that Swann,
in March 1989, had broken into the home of Rose Marie Gibson at
approximately 11:00 p.m. and had entered her bedroom. When Gib-
son informed Swann that she recognized him, he had hit her on the
head with a brick. See Swann, 441 S.E.2d at 205.

                    6
The Commonwealth also offered evidence that in October 1992,
Swann had robbed three different women of their pocketbooks. One
such woman, Irene Harris Carter ("Carter"), testified that Swann shot
at her and hit her on the head with a gun when she resisted. The jury
learned that Swann's robbery and murder of Richter occurred within
only ten days of the Carter robbery. Finally, the evidence demon-
strated that less than two weeks after the Richter murder, Swann
assaulted a police officer who had arrested him for cocaine posses-
sion.

In an effort to establish the existence of mitigating circumstances,
Swann presented the testimony of Dr. Samenow and Dr. Ryans. Dr.
Samenow's testimony concerned his evaluation of Swann and his
review of Swann's medical records, which indicated that Swann's
mental condition had been successfully controlled with antipsychotic
medication. Dr. Samenow opined that Swann "could function and per-
form satisfactorily in a structured environment where his medications
are administered and controlled." J.A. 270.

Dr. Ryans, the psychiatrist, testified about his prior treatment of
Swann. Specifically, Dr. Ryans expressed his opinion that Swann had
"a chronic undifferentiated schizophrenia," J.A. 176, and explained
that the treatment for Swann's condition was antipsychotic medica-
tion. Dr. Ryans also testified that during Swann's prior hospitaliza-
tions, Swann responded very well to antipsychotic medication and
was successfully returned to a state of remission and "very normal"
behavior. J.A. 180. Finally, Dr. Ryans offered extensive testimony
concerning the dosage of medication prescribed for Swann, the rela-
tionship between the dosage and the severity of Swann's condition,
the relationship between the dosage and the probable length of time
before a relapse would occur, and the side effects of the medication.

B.

Before addressing the merits of Swann's Ake claim, we must
resolve two preliminary matters. First, we must determine whether
Swann's claim is barred as a consequence of his failure to present the
claim in his state habeas petition. Second, we must decide whether
the limitations upon federal habeas relief set forth in 28 U.S.C.

                    7
§ 2254(d) govern our analysis of the claim or whether we must review
the claim de novo.

1.

The Commonwealth contends that we may not review the merits
of Swann's Ake claim because he defaulted the claim in state court
by failing to present it in his state habeas petition. We disagree.
Swann presented his Ake claim to the Virginia Supreme Court on
direct appeal. Thus, he was not required then to present the claim on
state habeas in order to preserve a federal habeas forum. See Castille
v. Peoples, 489 U.S. 346, 350 (1989).

2.

As amended by § 104 of the AEDPA, § 2254 imposes limitations
upon federal habeas relief with respect to a federal claim adjudicated
on the merits in state court and subsequently presented to a federal
court in a § 2254 application. In particular, the amended statute pro-
hibits federal habeas relief on any claim"adjudicated on the merits
in State court proceedings," 28 U.S.C.A. § 2254(d), unless that adju-
dication resulted in a decision that was: (1) "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;" or (2) "based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C.A. § 2254(d)(1)-
(2).

Swann argues that his federal constitutional claim under Ake was
not "adjudicated on the merits in State court proceedings" within the
meaning of § 2254(d), because the Virginia Supreme Court based its
ruling explicitly and exclusively on state-law grounds. Swann thus
contends that our analysis of his Ake claim is not governed by the
§ 2254(d) limitations upon federal habeas relief. The Commonwealth
argues in opposition that § 2254(d) controls, notwithstanding the lack
of reference to federal authority or to the United States Constitution
in the Virginia Supreme Court's analysis, because the court consid-
ered the appropriate factors under Ake in determining that Swann was
not entitled to the appointment of a psychiatrist.

                    8
We recognize that § 2254(d) may govern the disposition of a fed-
eral constitutional claim even though the state court's analysis of that
claim refers solely to state law. See Green v. French, 143 F.3d 865,
885 n.4 (4th Cir. 1998). For example, in Green , the court held that a
§ 2254 applicant's federal constitutional claim that the North Carolina
trial court coerced the jury into imposing his death sentence was "ad-
judicated on the merits" within the meaning of§ 2254(d), despite the
North Carolina Supreme Court's failure to mention the United States
Constitution or any federal precedent, including the controlling prece-
dent of Lowenfield v. Phelps, 484 U.S. 231 (1988). See Green, 143
F.3d at 885 n. 4. Although acknowledging that it was"somewhat
unclear whether Green's federal claim under Lowenfield was pre-
sented to and adjudicated by the North Carolina Supreme Court," we
ultimately determined that § 2254(d) controlled because the North
Carolina Supreme Court "apparently applied Lowenfield's `totality of
the circumstances test,'" and also "relied upon its own precedents
which, in turn, cited to and relied upon federal precedents falling
within the Lowenfield line of cases." Green, 143 F.3d at 885 n. 4.

Having reviewed the opinion of the Virginia Supreme Court in the
present matter, however, we are satisfied that Swann's Ake claim was
not "adjudicated on the merits" within the meaning of § 2254(d).
Unlike the situation presented in Green, the Virginia Supreme Court's
disposition of Swann's claim that he was entitled to the appointment
of a psychiatrist does not mention or appear to apply the controlling
federal precedent of Ake, nor does it cite or rely upon state precedents
that, in turn, cite or rely upon Ake. Rather, the Virginia Supreme
Court, after reviewing the trial testimony of Drs. Samenow and
Ryans, concluded only that the trial court's refusal to appoint a psy-
chiatrist did not constitute an abuse of discretion under Va. Code
Ann. § 19:2-264.3:1. Under these circumstances, we conclude that the
§ 2254(d) limitations upon federal habeas relief do not govern our
analysis of Swann's claim under Ake.

C.

We now turn to the merits of the claim. Swann first contends that
Ake literally mandated the appointment of a psychiatrist, as opposed
to a clinical forensic psychologist, to evaluate him and to render con-
clusions on issues pertaining to his mental condition, such as compe-

                    9
tency to stand trial, sanity at the time of the offense, and future
dangerousness. The logical implication of this contention is that the
appointment of a mental health expert other than a psychiatrist auto-
matically violates the due-process rights of an indigent criminal
defendant whose sanity or future dangerousness is to be a significant
factor at trial.

In the alternative, Swann contends that even if Ake did not literally
mandate the appointment of a psychiatrist, such an appointment was
mandated under the particular circumstances of this case. Swann sup-
ports this contention by referring to the fact that he had been treated
in the past with antipsychotic medication for a serious mental illness,
namely chronic undifferentiated schizophrenia. Swann argues that his
mental history raised issues of medication, dosage, and effects of non-
compliance with medication, which can be properly addressed only
by a psychiatrist. Swann thus argues that Dr. Samenow, as a clinical
forensic psychologist, lacked the qualifications necessary to address
those issues.

1.

Because Ake did not mandate the appointment of a psychiatrist
either literally or under the circumstances of this case, we conclude
that Swann's right to due process under Ake was not violated. Con-
trary to Swann's contention that the appointment of a mental health
expert other than a psychiatrist automatically violates Ake, we have
established that a state may satisfy its constitutional obligation under
Ake with the appointment of a competent psychologist. See Wilson v.
Greene, 155 F.3d 396, 401 (4th Cir. 1998) (holding that Ake requires
a state to ensure that a defendant has access "to a psychiatrist or
psychologist, not with guaranteeing a particular substantive result.")
(emphasis added). The Commonwealth satisfied its constitutional
obligation under Ake, therefore, when Dr. Samenow fulfilled the
responsibilities contemplated by Ake, i.e., to evaluate Swann, to
assess his sanity at the time of the offense, and to assist with the
presentation of mitigation evidence. See Ake, 470 U.S. at 82-84.

Furthermore, we conclude that Ake did not mandate the appoint-
ment of a psychiatrist in the present case, because Dr. Samenow pos-
sessed the qualifications necessary to fulfill his responsibilities.

                    10
Although indicating in a brief letter to the trial court that he was not
qualified medically to render an opinion on issues of medication "sur-
rounding hospitalization and other aspects of [Swann's] functioning,"
J.A. 42, Dr. Samenow in no way suggested that he was not qualified
to assess Swann's competency to stand trial or to assess Swann's san-
ity at the time of the offense. Swann, in fact, noted in his motion for
the appointment of a psychiatrist that he did not seek "to obtain a
more favorable report." J.A. 40. Moreover, Swann elicited no state-
ments from Dr. Ryans or any other expert to the effect that Dr. Same-
now, as a clinical forensic psychologist, was not qualified to render
an opinion on such matters. Lastly, Dr. Samenow did not testify at
trial that he was not qualified to assess the likely success of Swann's
treatment with antipsychotic medication in the future. Indeed, Dr.
Samenow testified that Swann's condition had been successfully con-
trolled with antipsychotic medication in the past, and that Swann may
again respond well to such medication in a structured environment.
We thus have no basis to conclude that Dr. Samenow lacked the qual-
ifications necessary to testify on the issue of Swann's future danger-
ousness.

2.

In support of his position that Ake mandated the appointment of a
psychiatrist under the particular circumstances of this case, Swann
relies primarily upon an affidavit that he procured only after he filed
the present application in the district court. The affidavit in question
was prepared by Dr. Mark Mills ("Dr. Mills"), a psychiatrist. Dr.
Mills opines in the affidavit that, for various reasons, a "psychiatrist
was necessary to determine [Swann's] trial competence, the mental
processes that had occurred at and around the time of the offense, the
mental processes that operated during Mr. Swann's confession, and
whether Mr. Swann would be a future danger." J.A. 1014-15.

We decline to consider the Mills affidavit in our disposition of
Swann's Ake claim because Swann failed to present that affidavit at
any point during the proceedings in the state courts of Virginia, and
he offers no explanation for that failure in the present appeal. State
prisoners are encouraged to develop all material facts in state court in
the interests of finality, comity, judicial economy, and a resolution of
issues in the most appropriate forum. See Keeney v. Tamayo-Reyes,

                     11
504 U.S. 1, 8 (1992). Those interests would be frustrated if a federal
court reviewing a habeas application considered evidence that the
applicant never sought to obtain and offer in state court, even though
such evidence was available. A federal court's refusal to consider
such evidence, on the other hand, advances the above interests by
encouraging state prisoners to obtain and offer all available evidence
during the pendency of state proceedings.

Furthermore, we conclude that the allegations set forth in the Mills
affidavit do not entitle Swann to an evidentiary hearing in federal
court on his Ake claim. Section 2254, as amended by § 104 of the
AEDPA, imposes limitations upon the ability of a§ 2254 applicant to
obtain an evidentiary hearing in federal court. Specifically, if an "ap-
plicant has failed to develop the factual basis of a claim in State court
proceedings," 28 U.S.C.A. § 2254(e)(2), a federal court is prohibited
from conducting an evidentiary hearing on that claim unless the appli-
cant demonstrates that:

          (A) the claim relies on----

          (i) a new rule of constitutional law, made retro-
          active to cases on collateral review by the Supreme
          Court, that was previously unavailable; or

          (ii) a factual predicate that could not have been
          previously discovered through the exercise of due
          diligence; and

          (B) the facts underlying the claim would be sufficient to
          establish by clear and convincing evidence that but for con-
          stitutional error, no reasonable factfinder would have found
          the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2)(A)-(B) (emphasis added).

In accordance with the foregoing framework, a district court pre-
sented with a request for an evidentiary hearing must first ascertain
whether the "applicant has failed to develop the factual basis of a
claim in State court proceedings." 28 U.S.C.A.§ 2254(e)(2); see

                     12
Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998). If so, the stat-
ute prohibits an evidentiary hearing on the claim in question un-
less the applicant makes the requisite demonstration under
§ 2254(e)(2)(A) and (B). See id. However, an applicant has not
"failed" within the meaning of § 2254(e)(2) if the applicant "has dili-
gently sought to develop the factual basis of a claim for habeas relief,
but has been denied the opportunity to do so by the state court." Id.
Once we determine that § 2254(e)(2) does not prohibit an evidentiary
hearing in federal court, an evidentiary hearing would be permitted
only if Swann has "allege[d] additional facts that, if true, would enti-
tle him to relief" on his claim. Cardwell, 152 F.3d at 338 (internal
quotation marks omitted).

We find that Swann "failed to develop the factual basis" of his Ake
claim within the meaning of § 2254(e)(2), because he did not present
the Mills affidavit at any point during the proceedings in the state
courts of Virginia. Furthermore, we have no basis upon which to con-
clude that the state courts of Virginia denied Swann the opportunity
to offer the Mills affidavit or otherwise develop the factual basis of
his claim. See Cardwell, 152 F.3d at 337. Section 2254(e)(2) thus pro-
hibits an evidentiary hearing in federal court on the Ake claim unless
Swann can make the requisite demonstration under§ 2254(e)(2)(A)
and (B). We are convinced that he cannot do so. The Supreme Court's
decision in Ake was rendered in 1985 and thus Swann's claim does
not rely upon "a new rule of constitutional law." 28 U.S.C.A.
§ 2254(e)(2)(A)(i). In addition, Swann cannot establish that his Ake
claim relies upon "a factual predicate that could not have been previ-
ously discovered through the exercise of due diligence[.]" 28
U.S.C.A. § 2254(e)(2)(A)(ii). Indeed, the factual predicate for the
claim had been discovered prior to the commencement of trial.

D.

We further conclude that Swann would not be entitled to federal
habeas relief on his Ake claim even if the trial court's refusal to
appoint a psychiatrist gave rise to a constitutional violation. The
Supreme Court has held that "in determining whether habeas relief
must be granted because of constitutional error of the trial type,"
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), the relevant
harmless-error inquiry is "whether the error had substantial or injuri-

                    13
ous effect or influence in determining the jury's verdict," id. at 637
(internal quotation marks omitted). We have expressly determined
that Ake errors are amenable to this analysis. See Tuggle v.
Netherland, 79 F.3d 1386, 1387-88 (4th Cir. 1996). We must there-
fore determine whether the trial court's refusal to appoint a psychia-
trist had a substantial or injurious effect or influence on the jury's
decision to fix Swann's punishment at death. See Brecht, 507 U.S. at
638. We conclude that it did not.

Swann had requested the appointment of a psychiatrist to assist him
in presenting evidence relating to medications for schizophrenia and
the effects of such medication on him. In so doing, Swann expressed
a preference for Dr. Ryans, who had previously treated Swann with
such medication during his prior hospitalizations. Although the trial
court refused to appoint him, Dr. Ryans did testify at trial and the jury
benefitted from his explanation of the nature of Swann's condition,
the types, dosage, and side effects of the antipsychotic medication
prescribed for his condition, the success of this treatment in the past,
and the likely effects of noncompliance with such medication. Before
recommending that Swann receive a sentence of death, therefore, the
jury considered Dr. Ryans's testimony despite the trial court's refusal
to appoint him.

Swann nevertheless contends that his presentation of mitigation
evidence was prejudiced by the trial court's refusal to appoint Dr.
Ryans, because Dr. Ryans testified without having recently conducted
an evaluation of Swann.3 At trial, however, Dr. Ryans testified at
length about his extensive personal treatment of Swann's condition in
the past and the results achieved, and indicated that he was familiar
with the medical records of those who subsequently treated Swann.
Moreover, Swann's failure to proffer additional testimony that he may
have elicited from Dr. Ryans had a recent evaluation been conducted
suggests that Dr. Ryans provided complete and competent testimony,
albeit not at the Commonwealth's expense. Under these circum-
stances, we conclude that the trial court's refusal to appoint Dr. Ryans
_________________________________________________________________
3 In support of this position, Swann relies primarily upon statements
offered by Dr. Mills in the Mills affidavit. For the reasons set forth ear-
lier, however, we will not consider these statements and we find that they
do not entitle Swann to an evidentiary hearing on his Ake claim.

                     14
did not have the requisite substantial or injurious effect or influence
on the jury's decision to fix Swann's punishment at death. See Brecht,
507 U.S. at 638. Therefore, Swann would not be entitled to federal
habeas relief even if his constitutional rights under Ake had been vio-
lated.

III.

Swann asserts that his right to trial by an impartial jury under the
Sixth and Fourteenth Amendments was violated as a consequence of
jury misconduct that ensued during the jury's penalty deliberations.
The specific allegations offered in support of this claim are derived
entirely from an affidavit prepared by Doris Pye ("Pye"), a private
investigator. Pye affirms in her affidavit that during July and August
1995, she interviewed eleven of the twelve individuals comprising the
jury in Swann's trial.

A.

The first of Swann's allegations of jury misconduct concerns Juror
Davis and evidence presented during the penalty phase of the trial that
Swann stole lawnmowers from a Wal-Mart store in June 1992.
According to the Pye affidavit, Davis realized during the trial that she
was employed at that particular store and present at the time of the
thefts. Davis recounted for the other jurors her experience of going to
the part of the store where the lawnmowers were kept at the time
when Swann would have been stealing them, but "something told her
not to open the door." J.A. 501. She then stated to the jurors that "[i]t
could have been me." J.A. 502. Although Davis shared this informa-
tion with the other jurors, she did not disclose it to the trial court.

The second of Swann's allegations of jury misconduct concerns
Juror Williams and evidence presented at trial concerning Terry Wil-
liams. During the guilt phase of the trial, the jury heard a recording
of Swann discussing a burglary that he committed with Terry Wil-
liams. The victim of that burglary testified during the penalty phase
and mentioned Terry Williams by name. Coincidentally, Juror Wil-
liams served on the jury that found Terry Williams guilty of capital
murder and recommended that he be sentenced to death. Moreover,
the trial judge and prosecutor in the Terry Williams trial were the

                    15
same as in the Swann trial. Juror Williams was not questioned about
his prior jury service during voir dire, and he did not disclose his jury
service in the Terry Williams case to the trial court.

Swann alleges further that the jurors, during their penalty delibera-
tions, improperly considered whether Swann would ever become eli-
gible for parole if he did not receive a sentence of death. According
to the Pye affidavit, several jurors speculated as to the amount of time
that Swann would actually serve in prison if only a sentence of life
imprisonment were imposed. One juror apparently desired to vote for
a sentence of life imprisonment without parole, but the trial court had
instructed the jurors that such a verdict was not an option.

B.

Based upon the foregoing allegations, Swann contends that he is
entitled to an evidentiary hearing on his jury-misconduct claim.
Accordingly, we must first ascertain whether Swann"failed to
develop the factual basis" of the claim in the state courts of Virginia.
28 U.S.C.A. § 2254(e)(2). If Swann clears the§ 2254(e)(2) hurdle, an
evidentiary hearing would be permitted only if he has "allege[d] addi-
tional facts that, if true, would entitle him to relief" on his claim.
Cardwell, 152 F.3d at 338 (internal quotation marks omitted).

Swann requested an evidentiary hearing in connection with his
state habeas petition, in which he presented the jury-misconduct
claim and offered the Pye affidavit as evidentiary support. The Vir-
ginia Supreme Court, however, summarily dismissed the petition
without conducting a hearing and determined that the jury-misconduct
claim had "no merit." J.A. 773. Under these circumstances, we find
that § 2254(e)(2) does not prohibit an evidentiary hearing in federal
court on Swann's jury-misconduct claim because he diligently sought
to develop the factual basis of that claim in the Virginia Supreme
Court, but was denied the opportunity to do so. See id. at 337-38
(holding that § 2254(e)(2) did not prohibit an evidentiary hearing in
federal court on a claim brought by a federal habeas applicant whom
the Virginia Supreme Court denied an evidentiary hearing in state
habeas proceedings).

Because Swann has cleared the § 2254(e)(2) hurdle, we may pro-
ceed to the issue of whether the allegations set forth in the Pye affida-

                     16
vit would, if true, entitle Swann to federal habeas relief on his jury-
misconduct claim. See Cardwell, 152 F.3d at 338. We are satisfied
that Swann would not be so entitled to federal habeas relief on this
claim and thus deny his request for an evidentiary hearing.

C.

As mentioned earlier, § 2254 imposes limitations upon habeas
relief with respect to a federal claim adjudicated on the merits in state
court and subsequently presented to a federal court in a § 2254 appli-
cation. In particular, federal habeas relief is prohibited on any claim
"adjudicated on the merits in State court proceedings," unless that
adjudication resulted in a decision that was: (1) "contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;" or (2)
"based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C.A.
§ 2254(d)(1)-(2).

Exploring the meaning of the phrases "contrary to" and "unreason-
able application of" as they appear in § 2254(d)(1), we have deter-
mined that § 2254(d)(1) authorizes federal habeas relief on a claim
presented by a § 2254 applicant who demonstrates that the state
court's rejection of that claim is in square conflict with directly con-
trolling Supreme Court precedent. See Green, 143 F.3d at 870, 880.
In the absence of such a controlling precedent, the applicant must
demonstrate either that "the state court's resolution of a question of
pure law rests upon an objectively unreasonable derivation of legal
principles from the relevant supreme court precedents," or that the
state court's decision "rests upon an objectively unreasonable applica-
tion of established principles to new facts." Id. at 870. The ultimate
§ 2254(d)(1) inquiry is whether "the state courts have decided the
question by interpreting or applying the relevant[Supreme Court]
precedent in a manner that reasonable jurists would all agree is unrea-
sonable." Id.4
_________________________________________________________________
4 Swann challenges the constitutionality of the limitations upon federal
habeas relief imposed by § 2254(d)(1) and construed in Green. In partic-
ular, Swann asserts that those limitations violate both Article III and the
Suspension Clause of the United States Constitution. However, as we
recently noted in Williams v. Taylor, 163 F.3d 860, 865 n. 3 (4th Cir.
1998), these identical challenges were presented and rejected in Green.
See Green, 143 F.3d at 874-76.

                     17
We have established that the Virginia Supreme Court's summary
dismissal of a state habeas petition constitutes a § 2254(d) "adjudicat-
[ion] on the merits" with respect to those claims specifically desig-
nated in the dismissal order as having "no merit." See Cardwell, 152
F.3d at 339 (concluding from review of summary order that appli-
cant's claim "was adjudicated `on the merits' and not disposed of on
procedural grounds."); see also Wright, 151 F.3d at 156-57 (4th Cir.
1998) (holding that summary dismissal "was clearly an adjudication
in which some claims were rejected pursuant to procedural default,
while others were decided on the merits."). Accordingly, we apply the
strictures of § 2254(d) to Swann's jury-misconduct claim in light of
the Virginia Supreme Court's express determination that the claim
has "no merit." See Cardwell, 152 F.3d at 339-40. We may not grant
federal habeas relief on the claim, therefore, unless Swann demon-
strates that the Virginia Supreme Court's rejection thereof resulted
from interpreting or applying the relevant Supreme Court precedents
"in a manner that reasonable jurists would all agree is unreasonable."
Green, 143 F.3d at 870. Because the claim was rejected in summary
fashion, we conduct an "independent review of the applicable law" to
determine whether Swann has made the requisite demonstration.
Wright, 151 F.3d at 157.

Swann cites numerous Supreme Court precedents in support of his
position that his constitutional right to trial by an impartial jury was
violated as a consequence of jury misconduct. He fails to demon-
strate, however, that any of these precedents are a directly controlling
Supreme Court precedent with which the Virginia Supreme Court's
rejection of the claim squarely conflicts. See Green, 143 F.3d at 870,
880. Moreover, he does not demonstrate that the Virginia Supreme
Court applied an established principle from a Supreme Court decision
to the facts of the present case in an objectively unreasonable manner.
See id. at 870. Rather, Swann asserts in conclusory fashion that "de-
nying relief under these circumstances is contrary to and an unreason-
able application of United States Supreme Court law." Brief of
Appellant at 31. Such an assertion is hardly sufficient to sustain his
burden of establishing that the Virginia Supreme Court decided the
question by interpreting or applying the relevant Supreme Court pre-
cedent "in a manner that reasonable jurists would all agree is unrea-
sonable." Green, 143 F.3d at 870. Under these circumstances, we are

                    18
satisfied that § 2254(d) prohibits federal habeas relief on Swann's
jury-misconduct claim.

D.

Even if Swann could surmount § 2254(d) and demonstrate that the
alleged jury misconduct gave rise to a constitutional violation, we
would still conclude that he is not entitled to federal habeas relief on
his claim. The Brecht harmless-error analysis applies to allegations of
jury misconduct presented in a federal habeas application when the
error involved is not structural in nature. See Sherman v. Smith 89
F.3d 1134, 1141-42 (4th Cir. 1996) (en banc). We believe that any
jury-related error in the present matter can "be quantitatively assessed
in the context of other evidence presented" to determine whether its
occurrence was harmless. Arizona v. Fulminante , 499 U.S. 279, 308
(1991). We thus explore whether the alleged acts of misconduct com-
mitted by the jurors in the course of the penalty deliberations in
Swann's trial "had a substantial or injurious effect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 638 (internal quo-
tation marks omitted).

As mentioned earlier, the jury's decision to fix Swann's punish-
ment at death was predicated upon a finding of future dangerousness.
See Va. Code Ann. § 19.2-264.4.C. At trial, the Commonwealth sup-
ported that finding with evidence proving a pattern of violent attacks
committed by Swann. In particular, the jury learned that Swann
robbed individuals at a fast-food restaurant, struck an individual while
participating in burglary and grand larceny, hit a woman on the head
with a brick after breaking into her home, shot at a woman and hit her
on the head with a gun in the course of robbing her pocketbook, and
assaulted a police officer after being arrested. Perhaps most devastat-
ing to Swann was the underlying offense, in which Swann, in search
of cocaine money, entered Richter's house armed with a shotgun and
murdered him.

In light of the foregoing evidence, we are convinced that Swann's
allegations that the jurors discussed the information shared by Jurors
Williams and Davis, and also discussed Swann's parole eligibility,
did not contribute in any significant way to their ultimate finding of
a probability that Swann "would commit criminal acts of violence that

                    19
would constitute a continuing serious threat to society." Va. Code
Ann. § 19.2-264.4.C. We conclude, therefore, that the acts of jury
misconduct alleged by Swann amount to harmless error under Brecht.
Swann thus would not be entitled to federal habeas relief and, accord-
ingly, we deny his request for an evidentiary hearing on his jury-
misconduct claim.

IV.

Swann contends that his right to effective assistance of counsel
under the Sixth and Fourteenth Amendments was violated as a result
of his trial counsel's failure: (1) to explore the prospective jurors'
prior jury service on voir dire, or (2) to object to evidence and argu-
ment offered by the Commonwealth that Terry Williams had been
sentenced to death. Swann presented this ineffectiveness claim in his
state habeas petition before the Virginia Supreme Court, which sum-
marily rejected the claim as having "no merit." J.A. 773.

In light of the Virginia Supreme Court's express determination that
Swann's ineffectiveness claim lacks merit, our analysis is governed
by § 2254(d). See Cardwell, 152 F.3d at 339. Accordingly, we may
not grant federal habeas relief on the ineffectiveness claim unless
Swann demonstrates that the Virginia Supreme Court's rejection of
the claim resulted from interpreting or applying the relevant Supreme
Court precedents "in a manner that reasonable jurists would all agree
is unreasonable." Green, 143 F.3d at 870. Because the claim was
rejected in summary fashion, we must conduct an"independent
review of the applicable law" to determine whether Swann can make
the requisite demonstration. Wright, 151 F.3d at 157.

To prevail on his ineffectiveness claim, Swann must satisfy two
well-established requirements set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Swann must first
demonstrate that the performance of his counsel"fell below an objec-
tive standard of reasonableness." Id. at 688. If successful in that
regard, Swann must then demonstrate that counsel's deficient perfor-
mance was prejudicial. See id. at 691-94. In articulating these require-
ments, the Court emphasized the following:

          [A] court need not determine whether counsel's perfor-
          mance was deficient before examining the prejudice suf-

                    20
          fered by the defendant as a result of the alleged deficiencies.
          . . . If it is easier to dispose of an ineffectiveness claim on
          the ground of lack of sufficient prejudice, which we expect
          will often be so, that course should be followed .

Id. at 697 (emphasis added).

With respect to the prejudice prong, Strickland instructed that an
ineffectiveness claimant "must show that there is a reasonable proba-
bility that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. However, the
Supreme Court has since clarified the prejudice inquiry in Lockhart
v. Fretwell, 506 U.S. 364 (1993), requiring an ineffectiveness claim-
ant to demonstrate that the result of his trial was"fundamentally
unfair or unreliable," id. at 369; see Williams v. Taylor, 163 F.3d 860,
869 (4th Cir. 1998) ("[T]he standard for prejudice set forth in
Lockhart is not an exception to the Strickland standard, but rather a
clarification."); see also Sexton v. French , 163 F.3d 874, 882 (4th Cir.
1998) (explaining that Lockhart requires an ineffectiveness claimant
to demonstrate that his trial was "fundamentally unfair or unreliable"
in order to satisfy the Strickland prejudice prong).

We are satisfied that the Virginia Supreme Court could reasonably
conclude that Swann's ineffectiveness claim fails simply because he
cannot demonstrate that prejudice resulted from the allegedly defi-
cient performance of counsel. Even if his counsel's performance fell
below an objective standard of reasonableness, there is virtually no
basis upon which to conclude that the result of either phase of the trial
was fundamentally unfair or unreliable. See Lockhart, 506 U.S. at
369. The jury's finding that Swann was guilty on the charges of capi-
tal murder and robbery was supported by extensive evidence, which
included a written confession. Similarly, there was overwhelming evi-
dence to support the jury's finding of future dangerousness, upon
which Swann's death sentence was based.

Under these circumstances, we are satisfied that Swann did not
meet his burden of demonstrating that the Virginia Supreme Court's
rejection of his ineffectiveness claim resulted from applying
Strickland and Lockhart "in a manner that reasonable jurists would all

                    21
agree is unreasonable." Green, 143 F.3d at 870. Federal habeas relief
on that claim is thus prohibited under § 2254(d).

V.

Swann presents two claims arising from the jury's viewing of the
crime scene during the guilt phase of the trial, when Swann was pres-
ent but allegedly wearing leg shackles. First, Swann claims that he
was deprived of his right to a fair trial because several jurors noticed
the leg shackles at the viewing. Second, Swann claims that his trial
counsel was ineffective for failing to object to his wearing of the leg
shackles in the presence of the jury.

A.

In his state habeas petition, Swann supported his request for an evi-
dentiary hearing on the above claims by offering the aforementioned
Pye affidavit, in which Pye affirms that at least four of the jurors
"stated that [Swann] was in leg shackles during the jury visit to the
crime scene." J.A. 499. The Commonwealth responded by offering
affidavits from Swann's trial counsel and a deputy sheriff of the Dan-
ville Sheriff's Department, both of whom stated that: (1) Swann was
not wearing leg shackles, and (2) measures were taken to ensure that
the jurors could not see the "sand-filled leg weights" that Swann wore
on his lower legs. J.A. 704-05, 710.

The Virginia Supreme Court, without conducting a hearing, denied
relief as to both claims. Swann argues on appeal that the conflicting
affidavits give rise to factual disputes that warrant an evidentiary
hearing. He argues further that if those disputes were resolved in his
favor, he would be entitled to relief on his claims. In opposition, the
Commonwealth maintains that Swann's right to an evidentiary hear-
ing is barred under § 2254(e)(2) on the basis that Swann "failed to
develop the factual basis" of the claims in the state courts of Virginia.

We conclude that § 2254(e)(2) does not prohibit an evidentiary
hearing on Swann's "leg shackle" claims, because he diligently
sought to develop the factual basis of the claims in the Virginia
Supreme Court by requesting an evidentiary hearing in connection

                     22
with his state habeas petition. See Cardwell, 152 F.3d at 337-38.
Because Swann has cleared the § 2254(e)(2) hurdle, we may proceed
to the issue of whether the allegations set forth in the Pye affidavit
would, if true, entitle Swann to federal habeas relief on either or both
of his "leg shackle" claims. See id. at 338.

1.

Swann's claim that he was deprived of his right to a fair trial
because several jurors noticed the shackles at the viewing was not
raised during trial or on direct appeal to the Virginia Supreme Court.
Rather, Swann initially presented the claim in his state habeas peti-
tion before the Virginia Supreme Court, which determined that con-
sideration of the merits of the claim was barred under Slayton. The
Commonwealth argues that we may not reach the merits of the claim
as a consequence of procedural default in the state courts of Virginia.
We agree.

The Supreme Court has established that when a § 2254 applicant
defaults a claim in state court pursuant to an adequate and indepen-
dent state procedural rule, federal habeas review of that claim is
barred unless the applicant demonstrates "cause for the default and
actual prejudice as a result of the alleged violation of federal law," or
demonstrates that refusal to consider the claim"will result in a funda-
mental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,
750 (1991); see Harris v. Reed, 489 U.S. 255, 262 (1989). The
Slayton rule, which the Virginia Supreme Court consistently applies
to bar state habeas consideration of claims not raised on direct appeal,
constitutes an adequate and independent state-law ground for deci-
sion. See Wright, 151 F.3d at 159-60.

Because Swann defaulted his claim in state court pursuant to an
adequate and independent state procedural rule, we may not address
the merits of the claim unless he can demonstrate cause for the default
and prejudice resulting from the purported constitutional violation, or
unless he can demonstrate that our refusal to consider the claim will
result in a fundamental miscarriage of justice. See Coleman, 501 U.S.
at 750. Because Swann does not even attempt to make the requisite
showing, we conclude that federal habeas relief on this claim is

                     23
barred. We thus deny his request for an evidentiary hearing on that
claim. See Cardwell, 152 F.3d at 338.

2.

The second claim is that Swann's trial counsel was ineffective for
failing to object to his wearing of the shackles in the presence of the
jury. The Virginia Supreme Court, on Swann's state habeas petition,
rejected this claim as having "no merit." J.A. 773. Again, we apply
the strictures of § 2254(d), see Cardwell , 152 F.3d at 339, requiring
Swann to demonstrate that the Virginia Supreme Court's rejection of
the claim resulted from applying the relevant Supreme Court prece-
dents "in a manner that reasonable jurists would all agree is unreason-
able," Green, 143 F.3d at 870. We conduct"an independent review
of the applicable law" in determining whether Swann can make the
requisite demonstration. Wright, 151 F.3d at 157.

In the present matter, Swann alleges that several jurors observed
him wearing leg shackles during the viewing of the crime scene. Even
if counsel's failure to object to the wearing of the leg shackles "fell
below an objective standard of reasonableness," Strickland, 466 U.S.
at 688, the Virginia Supreme Court could reasonably conclude that
Swann's ineffectiveness claim fails because of a lack of sufficient
prejudice. Given the extensive evidence of Swann's guilt and of his
future dangerousness, see Va. Code § 19.2-264.4.C, there is virtually
no basis upon which Swann can argue that the result of either phase
of the trial proceedings was fundamentally unfair or unreliable. See
Lockhart, 506 U.S. at 369.

Under these circumstances, we are satisfied that Swann cannot
meet his burden of demonstrating that the Virginia Supreme Court's
adjudication of Swann's ineffectiveness claim resulted from applying
either Strickland or Lockhart in an unreasonable manner. See Green,
143 F.3d at 870. Because federal habeas relief is thus prohibited
under § 2254(d), we deny Swann's request for an evidentiary hearing
on the ineffectiveness claim. See Cardwell, 152 F.3d at 338.

VI.

Swann asserts in two separate claims that his execution would vio-
late the Eighth and Fourteenth Amendments in light of his current

                    24
mental condition. He relies primarily upon Ford v. Wainwright, 477
U.S. 399 (1986), in which the Supreme Court held that a state is con-
stitutionally prohibited "from inflicting the penalty of death upon a
prisoner who is insane," id. at 410 (emphasis added). Swann alleges
in his first such Ford claim that he is"not competent to be executed"
and thus his execution would be unconstitutional. J.A. 968. In a sec-
ond Ford claim, Swann alleges that he is"severely mentally ill," J.A.
971, and contends that the rationale for Ford 's prohibition against the
execution of a prisoner who is insane applies with equal force to the
execution of one who is severely mentally ill.

Swann did not challenge his competency to be executed at trial or
on direct appeal to the Virginia Supreme Court. In his state habeas
petition, however, he presented the claim that he is severely mentally
ill and thus not competent to be executed under Ford. The Virginia
Supreme Court, applying Slayton, determined that the claim was pro-
cedurally defaulted "to the extent the claim is based on [Swann's]
mental state at the time of trial." J.A. 772.

After the magistrate judge recommended that federal habeas relief
be denied on both Ford claims as a consequence of procedural default
in the state courts of Virginia, Swann objected on the ground that he
could not be required to raise those claims until his execution became
imminent. The district court, finding no authority supporting the prop-
osition that a prisoner need not raise a Ford claim until execution
becomes imminent, overruled Swann's objection. On appeal, Swann
argues that the procedural-default rulings on his Ford claims no lon-
ger bear significance in light of Stewart v. Martinez-Villareal, 118
S. Ct. 1618 (1998), which the Supreme Court decided after the district
court entered judgment denying the present application.

In Martinez-Villareal, a state prisoner brought a § 2254 application
presenting various claims, including a Ford claim challenging his
competency to be executed. The district court dismissed the Ford
claim without prejudice as premature, and the remaining claims pre-
sented in the application were ultimately denied. After the State
obtained an execution warrant and Martinez-Villareal was determined
in state court to be competent to be executed, Martinez-Villareal
moved to reopen the Ford claim presented in his earlier § 2254 appli-
cation. The district court, however, denied Martinez-Villareal's

                    25
motion to reopen under 28 U.S.C. § 2244(b)(1) (West Supp. 1998),
a gatekeeping provision of the AEDPA directing that"[a] claim pre-
sented in a second or successive habeas corpus application under sec-
tion 2254 that was presented in a prior application shall be dis-
missed." The Court of Appeals for the Ninth Circuit, on Martinez-
Villareal's motion for leave to file a second or successive § 2254
application, held that § 2244(b) did not apply to Martinez-Villareal's
Ford claim. See Martinez-Villareal v. Stewart, 118 F.3d 628, 629 (9th
Cir. 1997) (per curiam).

The Supreme Court affirmed the Ninth Circuit's determination that
Martinez-Villareal's motion to reopen the Ford claim presented in his
earlier § 2254 application was not subject to the § 2244(b) restriction
on "second or successive" applications. Martinez-Villareal, 118 S. Ct.
at 1619. In so ruling, the Court analogized the situation of Martinez-
Villareal, whose Ford claim was dismissed without prejudice as pre-
mature, to the situation of a state prisoner whose§ 2254 application
was dismissed without prejudice for failure to exhaust state remedies:

          True, the cases are not identical; [Martinez-Villareal's] Ford
          claim was dismissed as premature, not because he had not
          exhausted state remedies, but because his execution was not
          imminent and therefore his competency to be executed
          could not be determined at that time. But in both situations,
          the habeas petitioner does not receive an adjudication of his
          claim. To hold otherwise would mean that a dismissal of a
          first habeas petition for technical procedural reasons would
          bar the prisoner from ever obtaining federal habeas review.

Martinez-Villareal, 118 S. Ct. at 1622.

The Court's ultimate determination on the applicability of
§ 2244(b) to Martinez-Villareal's Ford claim was guided by two
propositions. First, a Ford claim does not ripen for resolution until
execution is imminent because an individual's competency to be exe-
cuted cannot properly be assessed until that time. See Martinez-
Villareal, 118 S. Ct. at 1622 ("[Martinez-Villareal] brought his [Ford]
claim in a timely fashion, and it has not been ripe for resolution until
now."). Second, a federal habeas applicant is entitled to an adjudica-

                    26
tion on the merits in federal district court as to each claim presented
in an initial § 2254 application, in spite of § 2244(b):

          This may have been the second time that [Martinez-
          Villareal] had asked the federal courts to provide relief on
          his Ford claim, but this does not mean that there were two
          separate applications, the second of which was necessarily
          subject to § 2244(b). There was only one application for
          habeas relief, and the District Court ruled (or should have
          ruled) on each claim at the time it became ripe.[Martinez-
          Villareal] was entitled to an adjudication of all of the claims
          presented in his earlier, undoubtedly reviewable, application
          for federal habeas relief.

Id. at 1621. Combining these propositions, the Court concluded that
§ 2244(b) does not bar the reopening of a Ford claim presented in an
initial § 2254 application and dismissed without prejudice as prema-
ture. Had the Court held to the contrary, even a Ford claim presented
in an initial § 2254 application would be rejected under § 2244(b) as
a "second or successive habeas corpus application" because the Court
anticipated that any Ford claim would ripen and be adjudicated only
after the disposition of the application in which it was presented.

Although Martinez-Villareal does not expressly mandate that a
Ford claim presented in an initial § 2254 application by a capital pris-
oner whose execution is not imminent be dismissed without prejudice
as premature and then revisited once execution becomes imminent,
the Court unquestionably endorsed such an approach in its disposi-
tion. We shall, therefore, use that approach in our disposition of the
present matter by remanding with instructions to dismiss Swann's
Ford claims without prejudice, thereby allowing him to reopen those
claims after his execution becomes imminent and he has exhausted
any available remedies in the state courts of Virginia.

We understand that the consequence of our disposition will be to
afford Swann the opportunity to renew a portion of his habeas appli-
cation. This is, however, precisely the scenario contemplated by the

                     27
Supreme Court in Martinez-Villareal, notwithstanding § 2244(b)'s
explicit restrictions against "second or successive" § 2254 applications.5

We emphasize that our decision to direct the dismissal without
prejudice of Swann's Ford claims is derived from our interpretation
of Martinez-Villareal regarding the proper disposition of a Ford claim
presented in an initial § 2254 application. The Supreme Court
expressly declined to decide whether a § 2254 application presenting
a Ford claim is "second or successive" within the meaning of
§ 2244(b) when the applicant in question failed to present that claim
in a previously adjudicated § 2254 application. See Martinez-
Villareal, 118 S. Ct. at 1622 n. * ("This case does not present the situ-
ation where a prisoner raises a Ford claim for the first time in a peti-
tion filed after the federal courts have already rejected the prisoner's
initial habeas application. Therefore, we have no occasion to decide
whether such filing would be a `second or successive habeas corpus
application' within the meaning of AEDPA."). Likewise, we reserve
that issue for another day.

VII.

For the foregoing reasons, the judgment of the district court deny-
ing Swann's § 2254 application for a writ of habeas corpus is
affirmed in all respects, except as it relates to his claims that he is not
competent to be executed. We remand with instructions that Swann's
competency to be executed claims be dismissed without prejudice as
premature, and that he be permitted to renew those claims in a subse-
quent federal habeas proceeding if his execution becomes imminent
and he has exhausted any available remedies in the state courts of Vir-
ginia.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED
_________________________________________________________________

5 Indeed, Justice Scalia's dissent in Martinez-Villareal criticizes the
majority for "reshaping" the AEDPA's requirement of "extraordinary
showings before a state prisoner can take a second trip around the
extended district-court-to-Supreme-Court federal track." 118 S. Ct. at
1162 (Scalia, J., dissenting) (emphasis added).

                     28
