                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                  No. 05-22



JOHN YANCEY SCHMITT,

                                                    Petitioner - Appellant,

           versus


LORETTA   K.   KELLY,   Warden,    Sussex     I   State
Prison,

                                                     Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CA-02-953-3-REP)


Argued:   May 25, 2006                              Decided:   July 13, 2006


Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Dana Johannes Finberg, LECLAIR RYAN, P.C., Richmond,
Virginia, for Appellant. John H. McLees, Jr., Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee. ON BRIEF: Barbara L. Hartung,
Richmond, Virginia; David J. Sensenig, LECLAIR RYAN, P.C.,
Richmond, Virginia, for Appellant. Robert F. McDonnell, Attorney
General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                              2
PER CURIAM:

     Petitioner-appellant John Yancey Schmitt appeals the district

court’s denial of his habeas petition filed under 28 U.S.C.A. §

2254 (West Supp. 2005).     The district court granted a certificate

of appealability to Schmitt on the following six claims:            (1)

whether the Virginia Supreme Court’s holding that the exclusion of

evidence relating to general prison security and prison life at

state prisons was reasonable under Supreme Court precedent; (2)

whether impeachment evidence suppressed by the prosecution violated

Brady1; (3) whether Schmitt’s trial counsel were ineffective for

failing to preserve his prosecutorial misconduct claim by moving

for a mistrial at the appropriate time; (4) whether prosecutorial

misconduct rendered Schmitt’s trial unfair; (5) whether Schmitt’s

Massiah   claim2   was   procedurally   defaulted;   and   (6)   whether

Schmitt’s trial counsel were ineffective for failing to file a

pretrial motion to suppress a tape that thereby waived Schmitt’s




     1
      A defendant’s due process rights are violated pursuant to
Brady v. Maryland, 373 U.S. 83 (1963), when the prosecution
suppresses evidence favorable to the defendant that is material to
either the defendant’s guilt or punishment.
     2
      A Massiah v. United States, 377 U.S. 201 (1964), violation
occurs when the “government deliberately elicit[s] incriminating
evidence from an accused after he has been indicted and in the
absence of his counsel.” United States v. Kennedy, 372 U.S. 686,
692 (4th Cir. 2004) (internal quotation marks and alterations
omitted).


                                   3
Massiah          claim.      Finding      no     error    in    the    district    court’s

adjudication of Schmitt’s claims, we affirm.

                                  I.    Procedural History

                          A. Proceedings in the Trial Court

       On        January    19,    1999,      Schmitt     robbed      a   Nationsbank      in

Chesterfield County, Virginia, taking more than $65,000.                               At the

time        of    the   robbery,       Schmitt    was    on    probation    for   a     prior

conviction for unlawful possession of a firearm by a convicted

felon.        With part of the money from the robbery, Schmitt purchased

a car.           Cliff Sauer, Schmitt’s former employer and friend, helped

broker the car deal.               After the closing of the car deal, Sauer,

aware        that    Schmitt   had      not    been    gainfully      employed    in    quite

sometime, asked Schmitt about where he had obtained the funds for

the new car.            Eventually, Schmitt told Sauer that he had robbed a

bank.        Sauer did not contact the police with this information.

            On January 30, 1999, Schmitt and his girlfriend were staying

at a local hotel in Henrico County, Virginia and the hotel received

noise complaints regarding Schmitt’s room. When the police came to

investigate, Schmitt became belligerent and refused to comply with

the police officer’s instructions.                        Schmitt was arrested for

obstruction of justice.                During the booking process, Schmitt told

the police he was James Cromer.3                      Pretending to be James Cromer,



        3
            Cromer was a mutual friend of Schmitt and Sauer.


                                                 4
Schmitt called Sauer from the Henrico County jail and asked Sauer

to bail him out of jail.     Sauer, believing he was assisting Cromer,

complied with the request and bailed Schmitt out of jail.

      On February 17, 1999, Schmitt entered the same Nationsbank in

Chesterfield County, Virginia and robbed it again.             This time,

however, Schmitt shot and killed the bank’s security guard.              The

robbery was captured on the bank’s security cameras, but the

shooting occurred outside the view of the cameras.            Schmitt fled

the bank and checked into a hotel under a false name.                    The

Chesterfield County Police Department tracked Schmitt to the hotel,

and   Lieutenant   Clarcq   negotiated    his    surrender.    During    the

negotiations, Schmitt told Lt. Clarcq that he had not intended to

shoot the security guard, and he expressed concern for his family

and the family of the victim.

      After the second robbery and the murder, but before Schmitt

was apprehended, the Chesterfield County police contacted Sauer.

Sauer cooperated with the police and disclosed his knowledge of the

first bank robbery and the car deal.            Sauer provided the police

with the information that led to Schmitt’s arrest. After Schmitt’s

arrest, the police again sought assistance from Sauer, asking him

to tape record any telephone conversations he would have with

Schmitt.     Complying      with   this   request,    Sauer   recorded     a

conversation that would become a key piece of the prosecution’s

penalty phase evidence. During this recorded conversation, Schmitt


                                     5
made several incriminating and exculpatory statements regarding the

robbery and murder.     Schmitt expressed concern over his friends

that had been implicated in the robbery, including the young lady

who drove him to the hotel.     Schmitt also expressed confidence in

beating the murder charge because he claimed he did not intend to

shoot or kill the security guard. Schmitt explained that there was

a fight and that the security guard grabbed his gun.              Schmitt

described in detail how he grabbed the security guard’s hand and

how he had scratches on himself to prove the struggle.            Schmitt

believed that he committed manslaughter because he lacked the

intent to kill. Schmitt also laughingly described to Sauer how the

security guard’s “eyes got real big” when he pointed the gun at

him.   Changing topics, Schmitt then described the amenities of the

prison.   He said the prison was “nice” and noted that it had cable

television, ping-pong, microwaves, single cells, and reasonable

prices at the canteen.

       The Commonwealth of Virginia indicted Schmitt for capital

murder, armed entry of a bank with intent to commit larceny, two

counts of robbery, and three counts of use of a firearm in

violation of Virginia Code § 18.2-53.1 (2004).               Faced with a

defendant who wished to proceed to trial in spite of the mountain

of evidence against him, Schmitt’s trial co-counsel, Mr. Cooley and

Mr. Collins, turned their attention to trial strategy.          Schmitt’s

attorneys   weighed   the   possibility   of   moving   to   suppress   the


                                   6
telephone   call   between   Sauer     and   Schmitt.       They   ultimately

concluded, however, that if the prosecution entered the tape into

evidence during the guilt phase of the trial, which they believed

was a strong possibility, they could use the tape to Schmitt’s

advantage by arguing that the shooting was unintentional. This was

a critical decision because Virginia law requires that all defense

motions seeking to suppress evidence on the basis of violations of

the U.S. Constitution, whether the evidence is for use at trial or

sentencing, be filed no later than seven days before trial.                  See

Va. Code Ann. § 19.2-266.2 (Supp. 2005)(stating “Defense motions or

objections seeking . . .      suppression of evidence on the grounds

such evidence was obtained in violation of the provisions of the

Fourth, Fifth, or Sixth Amendments to the Constitution of the

United   States    or   Article   I,   Section   8,   10,    or    11   of   the

Constitution of Virginia proscribing illegal searches and seizures

and protecting rights against self-incrimination . . . shall be

raised by motion or objection, in writing, before trial.                     The

motions or objections shall be filed and notice given to opposing

counsel not later than seven days before trial . . . . The court

may, however, for good cause shown and in the interest of justice,

permit the motions or objections to be raised at a later time.”).

    At trial, the prosecution presented the surveillance video and

eye witnesses who identified Schmitt as the bank robber.                     The

prosecution also presented forensic evidence indicating that the


                                       7
security guard had been shot from a distance of 12 to 36 inches and

that the security guard’s gun never left its holster during the

robbery.       A search of the hotel room in which Schmitt was arrested

revealed a handgun, shotgun shells, newly purchased clothing and

$27,091 in cash bearing “bank bands” identifying the money as from

Nationsbank.         The    prosecution     chose   not    to     introduce    the

Sauer/Schmitt tape in the guilt phase and the state trial court

ruled against Schmitt’s attempt to proffer the tape, finding that

the tape could not be admitted as a “declaration against interest”

because Schmitt was an available witness.                  The jury convicted

Schmitt on all counts.

     At the sentencing phase, the prosecution produced evidence of

Schmitt’s prior convictions, his drug-dealer lifestyle, the bank

robberies, the Sauer/Schmitt tape, the hotel arrest, and testimony

from the victim’s family. The prosecution sought the death penalty

based on Schmitt’s future dangerousness and the vileness of the

murder.    The prosecution used Sauer to introduce the Sauer/Schmitt

tape.     Schmitt objected to the introduction of Sauer’s testimony

and the Sauer/Schmitt tape, arguing that it violated his Fifth and

Sixth Amendment rights according to Massiah because Sauer was

acting    as   an   agent   of   the   Commonwealth   at    the    time   of   the

conversation and when Sauer elicited incriminating statements from

Schmitt.       The prosecution argued that Schmitt had waived any

argument relating to such constitutional rights by failing to file


                                        8
a pre-trial motion to suppress the tape and other evidence.                      The

state trial court reviewed the tape and then overruled Schmitt’s

objection.     Sauer also testified that Schmitt asked him to drive

for him during the second robbery and offered to buy Sauer’s gun,

but Sauer rejected both offers. The prosecution also argued to the

jury that Schmitt had tricked the prison system and the probation

system by giving a false name and failing to comply with the terms

of his probation.

     Schmitt     presented     evidence       from     Lt.    Clarcq,   the    police

negotiator, describing the remorse Schmitt expressed from the

shooting and a medical specialist who testified about the effects

of drug addiction.          Schmitt also attempted to have the Chief of

Operations of the Virginia Department of Corrections, Gary Bass,

testify to the protections at maximum security prisons and the

general prison conditions in Virginia.                 The trial court, however,

allowed Mr. Bass to testify only that a life sentence means life

without parole.       Friends and family also testified on Schmitt’s

behalf.    Finding the future dangerousness aggravator present, the

jury recommended the death sentence for Schmitt and 118 years’

imprisonment on the remaining charges.

   B.     The Virginia Supreme Court’s Decision on Direct Appeal

     Schmitt timely filed a direct appeal of his conviction and

sentence in the Virginia Supreme Court.                Schmitt alleged numerous

errors    in   the   jury    selection,       guilt,    and   sentencing      phases.


                                          9
Relevant to our inquiry, Schmitt alleged that the trial court erred

by admitting into evidence the recorded telephone conversation

between Sauer and Schmitt because it violated Schmitt’s Sixth

Amendment right to counsel established under Massiah v. United

States, 377 U.S. 201 (1964). The Commonwealth responded that this

claim was procedurally defaulted pursuant to Virginia Code § 19.2-

266.2 because Schmitt raised it after the trial began.                 The

Virginia Supreme Court agreed that the claim was procedurally

defaulted.     Next, Schmitt argued that the trial court erred in

“refusing to admit evidence concerning prison life and the security

features of a ‘maximum security’ prison in the Commonwealth to

rebut   the    Commonwealth’s      contention   of   Schmitt’s       future

dangerousness.”      (J.A.   at   390.)   The   Virginia   Supreme    Court

rejected this argument on the merits, reasoning that “Schmitt’s

proffered evidence was not admissible to rebut any particular

evidence concerning prison security or prison conditions offered by

the Commonwealth.”     (J.A. at 390.)      The Virginia Supreme Court

further noted that evidence of maximum security prison features did

not constitute mitigation evidence because “the relevant inquiry”

in assessing a defendant’s future dangerousness rests on whether

the defendant “would” commit future acts while in prison, as

opposed to whether the defendant “could” commit such acts.           (J.A.

at 390.)      Finally, Schmitt alleged that he was entitled to a

mistrial based on improper and inflammatory arguments made by the


                                    10
prosecution during its closing argument.                The Virginia Supreme

Court noted that the trial court provided appropriate curative

instructions each time that Schmitt’s counsel objected to the

prosecution’s      statements   during      closing   argument.     It   further

concluded that Schmitt’s counsel did not preserve the mistrial

motion with respect to some of the prosecution’s comments because

that motion was made after the jury left the courtroom.                Thus, the

request for a mistrial based on those portions of the prosecution’s

closing argument was procedurally defaulted.                 Ultimately, the

Virginia Supreme Court affirmed Schmitt’s conviction and sentence.

   C.     The Virginia Supreme Court’s Decision on Habeas Review

     On state habeas review, Schmitt reasserted his previous claims

and added ineffective assistance of counsel claims.                The Virginia

Supreme Court held that because Schmitt raised these claims on

direct appeal they were barred from habeas review.                 The Virginia

Supreme    Court    then   turned   its     attention   to   the    ineffective

assistance of counsel claims.          Schmitt alleged that his counsel

were ineffective for failing to move to suppress the Sauer/Schmitt

tape on Massiah grounds. The Virginia Supreme Court found that the

claim satisfied neither the prejudice nor performance prong of the

Strickland v. Washington, 466 U.S. 668 (1984) test, because Sauer

was not acting as an agent of the state and therefore no basis

existed    for     the   suppression   motion.        Schmitt   also     alleged

ineffective assistance of counsel based on his counsel’s failure to


                                       11
move for a mistrial after the prosecution’s closing arguments.

Again,       the   Virginia         Supreme    Court      found    the     claims   to    be

unpersuasive because Schmitt failed to demonstrate how he could

have       prevailed    on    the    mistrial       motion   in    light    of   counsel’s

objections and the trial court’s curative instructions.

      D.    The District Court’s Decision on Federal Habeas Review

       Having exhausted his state-court remedies, Schmitt filed a 28

U.S.C.A. § 2254 petition in the Eastern District of Virginia

alleging twenty-four grounds for relief, including the six before

us.    The district court denied relief on Schmitt’s claim that the

exclusion of general prison security evidence violated his due

process rights, reasoning that the Supreme Court has never held

that a defendant is entitled to present “all evidence that may

touch on [the defendant’s] future sentence,” such as the security

features of prisons in which Schmitt may or may not be stationed.

       The district court conducted extensive evidentiary hearings as

to the remaining five claims before us.                     First, the district court

found       Schmitt’s    Massiah      claim     relating      to   the   taping     of   the

Sauer/Schmitt          telephone      call     to    be   unreviewable       because     the

Virginia       Supreme       Court    deemed    it    was    procedurally        defaulted.

Second, the district court concluded that ineffective assistance of

counsel did not excuse the procedural default because the decision

not to move to suppress the tape was the product of a well-reasoned




                                               12
defense strategy.4       Third, the district court addressed Schmitt’s

Brady    claim,    in   which   Schmitt    alleged   that   the   Commonwealth

suppressed impeachment evidence relating to Sauer because the

Commonwealth failed to disclose that Sauer received use immunity

for his grand jury testimony, that Sauer was working for the police

prior to Schmitt’s capture, that Sauer was mentally unstable, and

that the Commonwealth had provided Sauer with a free mental health

evaluation. The district court concluded that the suppressed facts

constituted impeachment evidence, but that the suppressed evidence

was not material.        Fourth, the district court denied relief on

Schmitt’s claims that the prosecution’s improper closing arguments

entitled Schmitt to a mistrial because the claim was procedurally

defaulted.        And finally, the district court concluded that no

ineffective assistance of counsel excused the procedural default of

the mistrial motion.

      The district court granted a certificate of appealability on

these six claims, and we have jurisdiction to review the district

court’s denial of the writ of habeas corpus pursuant to 28 U.S.C.A.

§   2253   (West    Supp.   2005)    (providing      appellate    courts   with




     4
      In doing so, the district court concluded that the Virginia
Supreme Court erred when it held that Sauer was not acting as an
agent for the state when he recorded the telephone call.      The
Commonwealth has not appealed this holding and, for purposes of
this opinion, we will assume that Sauer was acting as an agent of
the Commonwealth.


                                      13
jurisdiction to review final orders from habeas proceedings if a

certificate of appealability has issued).

                            II. Analysis

     “In reviewing the district court’s denial of [Schmitt’s]

habeas petition, we review the district court’s conclusions of law

de novo and its findings of fact for clear error.        Billings v.

Polk, 441 F.3d 238, 243 (4th Cir. 2006).      “We review de novo the

district court’s decision to deny a § 2254 petition based on the

record before the [state habeas court], applying the same standards

as the district court.”    Robinson v. Polk, 438 F.3d 350, 354-55

(4th Cir. 2006).      “[W]here a state court has not considered a

properly preserved claim on its merits, a federal court must assess

the claim de novo.”    Monroe v. Angelone, 323 F.3d 286, 297 (4th

Cir. 2003).   Conversely, relief may not be granted on a claim that

has been adjudicated by the state court unless the “state court

decision was either contrary to, or an unreasonable application of,

clearly established federal law as determined by the Supreme Court”

or the decision was based on an unreasonable determination of the

facts.   Robinson, 438 F.3d at 354.   “A decision of a state court is

contrary to clearly established federal law if the state court

arrives at a conclusion opposite to that reached by the Supreme

Court on a question of law or if the state court decides a case

differently than the Supreme Court has on a set of materially

indistinguishable facts.” Id. at 355 (internal quotation marks and


                                 14
alterations omitted). “The phrase ‘clearly established law’ refers

to the holdings, as opposed to the dicta, of the Supreme Court’s

decisions as of the time of the relevant state-court decision.”

Id. (internal quotation marks and alterations omitted).                 “A state

court adjudication is an unreasonable application of federal law

when the state court ‘correctly identifies that governing legal

rule from the Supreme Court’s cases but applies it unreasonably to

the facts of a particular case or applies a precedent in a context

different from the one in which the precedent was decided and one

to which extension of the legal principle of the precedent is not

reasonable or fails to apply the principle of a precedent in a

context   where   such    failure   is    unreasonable.”     Id.    (internal

quotation marks and alterations omitted).

     We also may not review claims that the state court has held

were procedurally defaulted on independent and adequate state

grounds absent a showing of cause and prejudice. Strickler v.

Greene, 527 U.S. 263, 282 (1999).          Utilizing these standards, we

examine each of Schmitt’s claims.

             A.   Prison Security and Prison Life Claim

     Schmitt’s first argument is that the exclusion of evidence

relating to general prison security and prison life during the

sentencing   phase   of   his   trial    violated   his   right    to    present

rebuttal evidence as established by Gardner v. Florida, 430 U.S.

349 (1977), Skipper v. South Carolina, 476 U.S. 1 (1986), and


                                    15
Simmons v. South Carolina, 512 U.S. 154 (1994)(plurality opinion).5

Schmitt proffered the testimony of Gary Bass, a senior member of

the Virginia Department of Corrections, to describe the security

features at Virginia’s maximum security prisons in rebuttal to the

Commonwealth’s future dangerousness argument.      Bass would not have

testified to Schmitt’s individual capacity to conform to prison

life, but only to general evidence of how state maximum security

prisons manage prisoners.

     Schmitt contends that he needed to present evidence relating

to general prison security and the nature of life at a maximum

security prison to rebut the Commonwealth’s argument that “the

system” could not be trusted to prevent him from committing future

acts of violence, and that he would enjoy pleasant amenities while

incarcerated.   The   Virginia   Supreme   Court   rejected   Schmitt’s


     5
      To the extent Schmitt contends that general evidence of
prison life and prison security features constitute relevant
mitigating evidence under the Eighth Amendment and Fourteenth
Amendment, his claim is without merit. The Supreme Court has never
held that a defendant may present general evidence relating to
prison life and security as mitigating evidence. To the contrary,
the Supreme Court has repeatedly noted that mitigating evidence
should relate to the individual defendant and why that defendant
should or should not be sentenced to death. See Skipper, 476 U.S.
at 4; Lockett v. Ohio, 438 U.S. 586, 605 (1978)(plurality opinion);
Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982); see also United
States v. Johnson, 223 F.3d 665, 674-75 (7th Cir. 2000) (noting
that a defendant should not have been entitled to “present to the
jury . . . evidence of the existence of maximum-security federal
prisons decked out with control units, in order to establish a
mitigating factor. A mitigating factor is a factor arguing against
sentencing this defendant to death; it is not an argument against
the death penalty in general.” (emphasis in original)).


                                 16
argument, holding that because the Commonwealth “did not present

evidence    concerning   prison      security     or       the   nature    of   prison

confinement” Schmitt was not entitled to present such evidence in

rebuttal. (J.A. at 390.) The Virginia Supreme Court also rejected

Schmitt’s general claim that evidence relating to prison security

should   always   be   admissible     to    rebut      a    future     dangerousness

argument.

      As established above, we cannot grant relief unless the

Virginia    Supreme    Court’s    decision        was      contrary       to    clearly

established federal law, was based on an unreasonable application

of   clearly   established    law,    or    was   based      on   an   unreasonable

determination of the facts.           We begin by assessing whether the

inclusion of a future dangerousness aggravator necessarily gives

rise to the right to present general prison security evidence and

then evaluating whether Schmitt needed to present Bass’s testimony

to rebut the Commonwealth’s evidence relating to prison security

and prison life.

      Here, Schmitt presents us with the same arguments that he

presented to the district court.              Schmitt relies on Skipper’s

language that “it is . . . [an] elemental due process requirement

that a defendant not be sentenced to death on the basis of

information which he had no opportunity to deny or explain.”

Skipper, 476 at 5 n.1.       Schmitt also points to language in Simmons

stating that juries may and should consider a “defendant’s likely


                                       17
conduct     in   prison”     when   evaluating   the   future    dangerousness

factor.6    Simmons, 512 U.S. at 171.        Gardner    established that due

process is violated when a defendant is forbidden from rebutting

the prosecution’s evidence in support of the death penalty.

     The district court correctly concluded that “the Supreme Court

has not addressed directly the right of a capital defendant to

present evidence of his prison security conditions when future

dangerousness is placed in issue, [therefore] the refusal of the

Virginia courts to permit evidence on that point does not run

contrary to a decision of the Supreme Court.”               (J.A. at 733.)   We

also agree with the district court’s reasoning that the Virginia

Supreme Court did not unreasonably apply the holdings of Simmons,

Gardner, and Skipper.         Although these cases clearly establish that

a defendant has a due process right to present rebuttal evidence,

they do not define rebuttal evidence to include evidence that

merely     describes   the    general   conditions     of   incarceration,   as

opposed to evidence about how the conditions of confinement would

affect a particular defendant. The district court aptly noted that



     6
      The actual holding of Simmons is that when the prosecution
seeks the death penalty based on future dangerousness, a defendant
is entitled to a jury instruction that life imprisonment means no
possibility of parole.    512 U.S. at 161.    Here, Schmitt is not
arguing that the trial court did not conform to this holding as
Bass testified that a life sentence means no possibility of parole,
and we are limited to examining whether the Virginia Supreme
Court’s decision is contrary to the holdings, not the dicta of
Supreme Court precedent. See Robinson, 438 F.3d at 355.


                                        18
in Young v. Catoe, 205 F.3d 750, 763 (4th Cir. 2000), we rejected

the defendant’s argument to expand Simmons, finding that Simmons

does not require that a jury be informed that the defendant would

be ineligible for parole for thirty years, even though Simmons

provides that juries should be instructed that a life sentence

means life imprisonment.    Thus, the district court was correct in

concluding that it is not an unreasonable application of clearly

established federal law to bar admission of evidence relating to

general prison security and prison life when the prosecution,

although   arguing    for   the   death   penalty   based   on   future

dangerousness, never argues that general prison security and prison

life factors support a death sentence.

     Having concluded that Supreme Court precedent does not require

that defendants be allowed to present evidence of general prison

security features to rebut a future dangerousness argument, we

address whether Schmitt had a right to use Bass’s testimony to

rebut specific evidence of prison security and conditions presented

by the prosecution.   During its closing argument, the Commonwealth

argued that “the system,” namely the Department of Probation and

Parole, had failed to keep Schmitt from preventing future crimes,

as he was on probation at the time of the murder.      (J.A. at 363.)

The Commonwealth also noted Schmitt’s prior manipulation of “the

system” as he provided a false name to the police after his arrest

on January 30.   In his summation, the prosecutor stated


                                  19
     I would urge you not to trust the system that can be so
     easily manipulated by the defendant, but Mr. Cooley says
     don’t worry about that. He’s going to be locked up for
     the rest of his life, and you look at me and say isn’t
     that right, Mr. Commonwealth.     I’m going to tell you
     something. There’s not one person on this planet that
     can predict the future. If you want to give him life,
     you roll the dice because you know from what you’ve heard
     that John Yancey Schmitt is a fist full of matches.


(J.A. at 365-66.)

     After reviewing the record, we agree with the Virginia Supreme

Court that the Commonwealth did not argue that general prison

security features were inadequate to protect against Schmitt’s

future dangerousness.         The Commonwealth’s “don’t trust the system”

argument focused not on the prison security features, but on

Schmitt’s failure to comply with the Department of Corrections’

protocol, by committing crimes while on probation, and by Schmitt’s

deceitfulness in providing the police with a false name.                        In

essence, the Commonwealth argued to the jury that “the system”

could not be trusted based on Schmitt’s prior actions. Schmitt has

failed    to   direct    us   to   any     statements    by    the   Commonwealth

specifically discussing security aspects of the prison, such as the

frequency of prison escapes, prisoner-on-prisoner assaults, or

murders   in   prison.        In   fact,      Schmitt   even   admits   that   his

“probation violations and his successful deception of the Henrico

[County] authorities became the highlight of lead prosecutor Von

Schuch’s argument for his death sentence.”              (Appellant’s Reply Br.



                                         20
at 4.)    Because the Commonwealth’s sentencing arguments focused on

Schmitt’s character, his propensity for violent acts and his

manipulation    of   the   state     prison   and   probation   systems,   the

statements were decidedly not general statements about prison

security features that could give rise to the right to present

rebuttal evidence in the form of general prison security features.7

     In summary, we deny Schmitt’s claim because the Virginia

Supreme Court did not err in holding that evidence relating to

general    prison    security   is    inadmissible     to   rebut   a   future

dangerousness argument when the prosecution has not placed general

prison security evidence before the jury.             We also conclude that


     7
      Schmitt also argues that the Commonwealth actually presented
evidence of prison life through the introduction of the
Sauer/Schmitt tape. During the sentencing phase, the Commonwealth
introduced the Sauer/Schmitt tape in which Schmitt himself
discussed the amenities of the local jail, including cable
television, microwave ovens, ping pong, and reasonable prices at
the canteen (the amenities).     Despite our conclusion that the
prosecution introduced prison life evidence, we cannot grant relief
on this claim because the local jail’s amenities had no relevance
to the jury’s determination of whether the murder was particularly
vile or whether Schmitt has a propensity to commit future acts of
violence. See e.g., Skipper, 476 U.S. at 7 n.2 (noting that how
often the defendant showers in prison “is irrelevant to the
sentencing determination”). Thus, to the extent that evidence of
prison life was entered into evidence, such evidence did not have
a substantial and injurious effect on the jury’s determination of
whether the aggravating factors of vileness or future dangerousness
were present. See Richmond v. Polk, 375 F.3d 309, 335 (4th Cir.
2004) (“[P]rinciples of comity and respect for state court
judgments preclude federal courts from granting habeas relief to
state prisoners for constitutional errors committed in state court
absent a showing that the error ‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’”(quoting
Brecht v. Abrahamson, 507 U.S. 619 (1993)).


                                       21
the    Virginia      Supreme   Court   reasonably      determined         that   the

Commonwealth did not present general evidence of prison security.

                               B.    Brady Claim

       We    next    address   Schmitt’s     claim    that    the    prosecution

suppressed material impeachment evidence. Schmitt alleges that the

Commonwealth violated the dictates of Brady v. Maryland, 373 U.S.

83 (1963), by failing to disclose that Sauer received use immunity

for his grand jury testimony, that Sauer was working for the police

prior to Schmitt’s capture, that Sauer was mentally unstable, and

that the Commonwealth provided Sauer with a free mental health

evaluation.         Schmitt did not exhaust this claim in state court

because the factual underpinnings of the claim came to light only

on federal habeas review.           Ordinarily, an unexhausted claim is

procedurally defaulted and we may only review the claim if the

defendant     demonstrates     cause   and     prejudice     for    the    default.

Strickler, 527 U.S. at 282.         The Supreme Court, however, has held

that in reviewing Brady claims, the Strickler cause and prejudice

prongs overlap with two of the three elements of a Brady claim.

A successful Brady claim, requires that the defendant demonstrate

that   (1)    the     suppressed    evidence    was   favorable,      either     as

exculpatory evidence or impeachment material, (2) the government

suppressed the impeachment or exculpatory evidence either willfully

or inadvertently, and (3) the suppressed evidence was material.

See Monroe, 323 F.3d at 298.           “Corresponding to the second Brady


                                       22
component   (evidence suppressed by the State), a petitioner shows

‘cause’ when the reason for his failure to develop facts in state-

court proceedings was the State’s suppression of the relevant

evidence; coincident with the third Brady component (prejudice),

prejudice   within   the       compass    of    the   ‘cause    and       prejudice’

requirement exists when the suppressed evidence is ‘material’ for

Brady purposes.”      Banks v. Dretke, 540 U.S. 668, 691 (2004).

Because no state court adjudicated Schmitt’s Brady claim, we will

review the claim de novo.        See Monroe, 323 F.3d          at 297 (“AEDPA’s

deference requirement does not apply when a claim made on federal

habeas review is premised on Brady material that has surfaced for

the first time during federal proceedings.”).

     Because the Commonwealth does not challenge that it suppressed

the evidence relating to Sauer or that the evidence had impeachment

value,   we turn to the materiality prong.

     Kyles v. Whitley, 514 U.S. 419 (1995) instructs that the

materiality standard is met when “the favorable evidence could

reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict.”            Id. at 435. “In short,

[Schmitt]   must   show    a   reasonable       probability    of     a    different

result.”    Banks, 540 U.S. at 699.            Because Schmitt’s Brady claim

relates entirely to the ability to impeach Sauer, who testified

only at the sentencing phase of the trial, we need only determine

whether Schmitt has demonstrated a reasonable probability that the


                                         23
jury, armed with the suppressed evidence, would have given him a

life sentence.8

      We begin by summarizing the evidence presented to the jury at

the sentencing phase.         The prosecution introduced evidence of

Schmitt’s prior convictions, which included two convictions for

possession of marijuana with intent to distribute, one conviction

for   receipt   of   stolen   property,   one   conviction   for   felon   in

possession of a firearm, and one conviction for possession of

marijuana. The prosecution also presented testimony from Schmitt’s

former probation officers; JoAnna Murphy, Schmitt’s friend; Kenny

Lockner, the owner of the gun used in the first robbery; the

officer involved in the hotel arrest; and victim impact testimony

from the security guard’s family. The probation officers testified

that Schmitt violated his probation by failing drug tests, missing

his outpatient drug treatment meetings, never demonstrating that he

was gainfully employed, missing his mandatory probation meetings,



      8
      To the extent that Schmitt argues that the suppressed
impeachment evidence may have encouraged his trial counsel to move
to suppress the Sauer/Schmitt tape pre-trial because the suppressed
impeachment evidence included evidence that Sauer was working as a
government agent, this claim is without merit. As developed more
fully in the text infra in Part II-F, Schmitt’s attorneys were well
aware that they had a valid basis under Massiah for moving to
suppress the Sauer/Schmitt tape.     After much deliberation, his
counsel determined that the tape could be more helpful than harmful
and they chose not to move to suppress it.          The additional
information would not have altered this strategic decision because
it bore no relationship to Schmitt’s counsel’s tardy filing of the
suppression motion.


                                    24
and missing his court appearances.       Joanna Murphy testified that

she saw Schmitt with a sawed off shotgun just prior to the first

robbery and that after she learned of the first robbery, Schmitt

took her to the mall to buy approximately three hundred dollars

worth of new clothes.     Kenny Lockner, a former friend of Schmitt,

testified that Schmitt used his (Lockner’s) shotgun in the first

bank robbery without his knowledge. The prosecution also presented

testimony from the officer involved in the hotel incident who

described the belligerent acts leading to Schmitt’s arrest on that

night and the false name provided by Schmitt. The prosecution then

presented victim impact testimony from the security guard’s family.

The mother of the security guard testified to her son’s popularity,

his twenty years of service in the United States Army, and the

community foundation that was established in memory of her son.

      Finally, at the conclusion of the sentencing phase, the

prosecution called Sauer. First and foremost, the prosecution used

Sauer to introduce the Sauer/Schmitt tape.         It was during this

taped conversation that Schmitt stated his confidence in beating

the   murder   charge,   used   profanity,   laughingly   described   the

security guard’s reaction to the sight of his gun, stated his

commitment to carrying out the robbery even though it required

shooting the security guard, and described the amenities of the

county jail.    Sauer also testified that Schmitt tried to purchase

a gun from him and that Schmitt threatened to kill Joanna Murphy


                                    25
after the first bank robbery out of fear that Murphy would turn him

into the police.     Sauer then described the incident where Schmitt

called him pretending to be James Cromer and requested that he be

bailed out of jail.

     In his defense, Schmitt presented mitigation testimony from

Lt. Clarcq, the officer who negotiated his surrender; Dr. Bright,

an adolescent addiction specialist; Gary Bass, a Department of

Corrections employee; and various family members and friends.             Lt.

Clarcq   testified   that    while   negotiating    Schmitt’s    surrender,

Schmitt stated that he robbed the bank to obtain drug money and

that he never intended to kill anyone.          Dr. Bright testified that

the withdrawal symptoms felt by a cocaine addict include cravings,

depression,   anxiety,      paranoia,   boredom,    memory    problems,   and

suicidal ideation.    Dr. Bright, however, informed the jury that he

had not evaluated Schmitt.      Mr. Cooley used Dr. Bright’s testimony

to support his opinion that Schmitt’s drug addiction drove him to

rob the banks and shoot the security guard and that when not on

drugs, Schmitt was a good person.          Gary Bass testified that a life

sentence   means   life   without    the   possibility   of   parole.     And

Schmitt’s family and friends testified that he had redeeming

qualities, such as always being courteous, kind and respectful, and

was a pleasant individual when not on drugs.

     Because the suppressed evidence could only have been used to

impeach Sauer’s credibility, our confidence in the jury’s verdict


                                     26
has not been undermined.                Schmitt cannot demonstrate that the jury

would have imposed a life sentence had they have known that Sauer

was working with the government and that he had received mental

health       services.       One    of     the    most   damaging      portions     of   the

prosecution’s         case       was     the      Sauer/Schmitt        tape    and,      more

specifically, the very statements made by Schmitt during the

conversation.             Schmitt       could     not    have   used    the    suppressed

impeachment evidence to bar the introduction of the tape after the

trial began, nor could the evidence have been used to impeach

Schmitt’s damaging remarks.9                   At most, the impeachment evidence

could have been used to discredit Sauer’s statement that Schmitt

offered to buy his gun to use presumably in the bank robberies and

that Schmitt threatened to kill Joanna Murphy.                          This would have

been        of   little   help     to    Schmitt      because   Schmitt       had   already

stipulated to the fact that he was a convicted felon and thus he

illegally possessed the gun used in the murder. Moreover, the jury

had already heard that Schmitt had taken Lockner’s gun for use in

the first robbery.           Also, Joanna Murphy’s own testimony cast doubt

on the alleged threat to kill her because she testified that

Schmitt took her shopping when he learned that she knew about the

first       robbery   --    as     opposed       to   killing   her     because     of   her

knowledge.         The ability further to impeach Sauer on the alleged


        9
      Schmitt did not contest the authenticity of the tape and his
mental instability would not have affected the authentication.


                                                 27
threat against Joanna Murphy is, alone, insufficient to warrant a

finding that the jury would not have imposed the death penalty.

Lastly, the impeachment evidence would have done little to curtail

the harm from Sauer’s testimony about Schmitt pretending to be

James Cromer because the arresting officer had already provided

corroborating evidence of the arrest and the false name.

     Even if the jury used the suppressed evidence to discredit all

of Sauer’s testimony, the underlying facts would not have changed.

At the end of the day, the jury reviewed Schmitt’s lengthy criminal

record and listened to his damaging statements on the Sauer/Schmitt

tape, his probation officers testify to Schmitt’s failure to become

a law-abiding citizen after being convicted multiple times, his

drug abuse, his evasion of the police, and how he took the life of

a respected and loved member of the community.      It also bears

noting that the same jury had just found Schmitt guilty of capital

murder and robbing the same bank twice within six weeks, which

undoubtedly is powerful evidence of future dangerousness.10


     10
      Schmitt urges this court to find that his case is no
different than Banks v. Dretke, 540 U.S. 668 (2004), in which the
Supreme Court found all three elements of a Brady claim satisfied
where the prosecution suppressed the paid informant status of one
of the prosecution’s key witnesses.      The facts of Banks are
materially distinguishable from our case. In Banks, the Supreme
Court found that the informant’s testimony was key to the
prosecution’s case during the guilt and sentencing phases. Id. at
698.   Here, by contrast the Sauer/Schmitt tape was key to the
Commonwealth’s penalty case, but Sauer’s live testimony was not.
The Court also noted in Banks that the defendant was denied the
opportunity to “probe” the informant’s credibility through cross-


                                28
     In summary, we conclude that Schmitt has not demonstrated

prejudice from the suppression or that the suppressed evidence was

material because the suppressed evidence does not “put the whole

case in such a different light as to undermine confidence in the

verdict.”    Strickler, 527 U.S. at 291 (internal quotation marks

omitted).

                   C.   Ineffective Assistance Claim

     Schmitt alleges that his trial counsel were ineffective for

failing to move for a mistrial prior to the jury leaving the

courtroom,   which   would   have   preserved   Schmitt’s   prosecutorial

misconduct argument.     The Virginia Supreme Court on state habeas

review found that the failure to move for a mistrial at the proper

time did not satisfy the performance or the prejudice prongs of the

Strickland test.     Because the Virginia Supreme Court reached the

merits of this ineffective assistance of counsel claim, we must

examine their conclusions under the strictures of 28 U.S.C.A. §

2254.



examination. Id. at 701. Here, any cross-examination on Sauer’s
grant of immunity, his mental status, and the free mental health
screening provided by the government could not have cast doubt on
the damaging statements made by Schmitt during the taped
conversation. Furthermore, in Banks the paid informant testified
to the defendant’s “propensity to commit violent acts,” which was
crucial because the defendant did not have a criminal record. Id.
at 700. Here, Schmitt had a lengthy criminal record and the jury
listened to an officer describe Schmitt’s belligerent nature at the
hotel.



                                    29
       “To prove a Sixth Amendment violation under Strickland a

defendant     must    demonstrate        that     counsel’s     performance       was

deficient, and that this deficient performance prejudiced the

defense.”     Vinson v. True, 436 F.3d 412, 418 (4th Cir. 2006)

(internal     quotation       marks    omitted).         “Judicial    scrutiny    of

counsel’s performance must be highly deferential.” Strickland, 466

at 689. “A fair assessment of attorney performance requires that

every   effort   be    made    to     eliminate    the   distorting     effects    of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time.” Id.        “To establish deficient performance, a petitioner

must    demonstrate    that     counsel’s      representation      fell   below   an

objective standard of reasonableness,”                Wiggins v. Smith, 539 U.S.

510,    521   (2003)(internal         quotation       marks   omitted),   and     the

prejudice prong “requires a claimant to show that there is a

reasonable    probability       that,    but    for    counsel’s     unprofessional

errors, the result of the proceeding would have been different,”

Strickland, 466 U.S. at 694 (internal quotation marks omitted).

       Schmitt contends that his trial counsel should have moved for

a mistrial after the prosecution made the following inappropriate

arguments to the jury during its closing argument:                        (1) that

Schmitt possessed a stolen gun; (2) that Schmitt assaulted his

girlfriend; (3) that      “the system” could not be trusted to contain

Schmitt; and (4) that Schmitt would enjoy amenities while in


                                          30
prison.       Before    we   can   determine        whether    any    of   the   above

statements warranted a mistrial motion, we must determine whether

any of the statements were actually improper.

       The first statement referencing the stolen gun was improper

because the prosecution and defense had stipulated prior to trial

that Schmitt possessed the gun illegally because he was a convicted

felon, not because it was stolen.                  The second statement, that

Schmitt assaulted his girlfriend, was also inappropriate because

the    alleged   assault     was   not   put       into   evidence.        The   third

statement, that “the system” could not be trusted to contain

Schmitt, however, was an appropriate comment. During the defense’s

closing argument, Mr. Cooley argued that “there is no probability

or even possibility that [Schmitt] can be a continuing serious

threat to our society” because he will be “imprisoned for the rest

of    his   natural    life.”      (J.A.      at    344-45.)         Therefore,    the

prosecution’s argument that “the system” could not be trusted to

contain Schmitt because of Schmitt’s prior deviant acts within the

prison and probation systems was an acceptable rebuttal argument.

Finally, the fourth statement, that the prosecution described the

amenities of prison, contained both appropriate and inappropriate

comments.     During its rebuttal argument, the prosecution began to

argue that if given life Schmitt will enjoy a life of ping pong.

Defense counsel quickly objected and the trial court instructed the

jury   that   what     the   prosecution      said    was     not    evidence.     The


                                         31
prosecution then proceeded with its argument, altering its focus

just slightly by asking the jury to recall Schmitt’s description of

what he had enjoyed at the local prison, including the ping pong,

microwaves, cable television, and canteen privileges.               The second

portion   of   the   prosecution’s     argument   was    clearly    acceptable

because   it    merely    reiterated    irrelevant      evidence    previously

submitted to the jury and as noted in Part II-A.

     In   summary,       the   only    objectionable       portions    of    the

prosecution’s    argument      were   the   mention   of    the    stolen   gun,

Schmitt’s assault on his girlfriend, and the reference to Schmitt

playing ping pong.       Defense counsel objected contemporaneously to

each of the above statements, and each time the trial court issued

a curative instruction. In fact, the trial court four times issued

instructions in which it reminded the jury that what the lawyers

said in closing argument was not to be considered evidence.                  We

agree with the district court’s conclusion that Schmitt’s counsel

were not ineffective for failing to move for a mistrial after each

of these statements because counsel had objected and received

appropriate curative instructions from the trial court.                     See

Bennett, 92 F.3d at 1346 (finding no harm from improper prosecution

argument where trial court told the jury “what the lawyers say is

not evidence” and evidence of guilt was “powerful”); cf. Martin v.

Grosshans, 424 F.3d 588, 591-92 (7th Cir. 2005)(finding defense

counsel’s performance deficient where counsel failed to move for a


                                       32
mistrial when the prosecution’s closing argument referenced Jeffrey

Dahmer).

     Even if we assumed, for argument’s sake, that moving for a

mistrial at the wrong time satisfies the deficient performance

prong of Strickland, Schmitt cannot satisfy Strickland’s prejudice

prong.      The    trial    court     repeatedly        instructed          the   jury    that

statements made in closing arguments are not evidence and, in fact,

in denying Schmitt’s untimely mistrial motion, the trial court

noted    that     it   presumed      the    jury       followed       its    instructions.

Furthermore, even if Schmitt’s counsel had preserved the mistrial

motion     and     the     Virginia        courts      could     have       reviewed       the

prosecution’s closing argument on appeal, there is no reasonable

probability that Schmitt’s sentence would have been reversed.                              The

prosecutor’s      isolated     comments         regarding       the    stolen      gun,    the

assault on the girlfriend, and the reference to Schmitt playing

ping pong did not undermine the jury’s verdict.                        In fact, only the

reference to the assault could have been used to support the future

dangerousness argument, whereas the ping pong comment does not

reflect future dangerousness and the stolen gun hardly reflects

future     dangerousness       any     more      than     the     illegal         possession

instruction       actually    given        by    the    trial     court.           And    more

importantly, the prosecutor’s comments were                     minuscule compared to

Schmitt’s prior criminal record, his two bank robberies, his drug

abuse, his lack of remorse, and his deception of the local police.


                                            33
See Bennett, 92 F.3d at 1347.              Thus, there is no reasonable

probability that the trial judge would have granted a timely

mistrial motion based on the prosecution’s comments, or that the

Virginia courts would have vacated his sentence based on the same

arguments.      Because     Schmitt      has     not   met   the   Strickland

prerequisites, we cannot conclude that the Virginia Supreme Court

unreasonably applied the Strickland test to the facts presented.

                      D.   Prosecutorial Misconduct

     Schmitt   next   contends    that     the   improper    remarks   by   the

prosecution during closing argument were so prejudicial that they

rendered the trial unfair.       This claim is procedurally defaulted,

and we may not review it unless Schmitt can demonstrate that

ineffective assistance of counsel excuses the default.                 Because

Schmitt cannot prevail on his ineffective assistance of counsel

claim under Strickland, he also has not established cause and

prejudice for excusing the default of his prosecutorial misconduct

argument.    See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“So

long as a defendant is represented by counsel whose performance is

not constitutionally ineffective under the standard established in

Strickland v. Washington, 466 U.S. 668, (1984), we discern no

inequity in requiring him to bear the risk of attorney error that

results in a procedural default.” (internal quotation marks and

alterations omitted)).




                                      34
                            E.   Massiah Claim

     Schmitt’s fifth claim for relief is that the district court

erred   in   concluding   that   his    Massiah   claim   was     procedurally

defaulted.     Schmitt claims that his Sixth Amendment right to

counsel was violated when he telephoned Sauer from prison and

Sauer, acting as a government agent, recorded the conversation and

elicited incriminating statements from him.           The Virginia Supreme

Court found that claim procedurally defaulted because Schmitt

failed to move to suppress the Sauer/Schmitt tape prior to trial as

required by Virginia Code § 19.2-266.2.               The district court,

relying on Skipper v. French, 130 F.3d 603 (4th Cir. 1997),

concluded that it was precluded from reviewing the merits of the

claim   because   the     Virginia     Supreme    Court   found    the   claim

procedurally defaulted on independent and adequate state grounds.

Schmitt now argues that we should review the claim because (1) the

trial court denied the Massiah motion on the merits and not on the

basis of § 19.2-266.2; (2) the Virginia procedural default law is

not regularly enforced and cannot constitute an independent and

adequate state ground barring federal habeas review; and (3) that

cause and prejudice excuses the failure to move to suppress the

tape pretrial. We review the district court’s “purely legal ruling

de novo.”    Skipper, 130 F.3d at 609.

     Schmitt presents two arguments to support his supposition that

the Virginia courts decided the merits of his Massiah claim.


                                       35
First, Schmitt cites to Ramdass v. Angelone, 187 F.3d 396, 409 (4th

Cir. 1999) for the proposition that a defendant may preserve the

substance of a constitutional claim when couching the claim under

an ineffective assistance of counsel claim.   Schmitt contends that

because the Virginia Supreme Court reviewed the merits of his

ineffective assistance of counsel claim relating to the Massiah

motion, the Virginia Supreme Court necessarily decided the merits

of the Massiah motion to suppress. Ramdass, however, is inapposite

to the present case.    Here, the issue is not whether Schmitt

presented the Massiah argument to the state court (he did), but

whether the Virginia Supreme Court unequivocally held that Schmitt

had procedurally defaulted the claim at the trial level pursuant to

an independent state ground. And contrary to Schmitt’s contention,

the Virginia Supreme Court, on both direct appeal and state habeas

review, explicitly rejected the claim on procedural grounds because

Schmitt failed to comply with the requirements of § 19.2-266.2 at

trial.

     Second, Schmitt contends that the denial of his Massiah motion

was not procedurally defaulted, but must have been decided on the

merits because the trial court accepted the motion and reviewed a

transcript of the telephone call.    Whether the trial court denied

Schmitt’s motion on the merits is, however, irrelevant to our

inquiry.   When we assess whether a state court has dismissed a

claim on independent and adequate state grounds, “[t]he relevant


                                36
state court decision for purposes of the inquiry is that of the

last state court to be presented with the particular federal claim

at issue.”     Skipper, 130 F.3d at 609 (internal quotation marks

omitted).    Here, the Virginia Supreme Court on state habeas review

declined to review the appropriateness of the trial court’s denial

of Schmitt’s Massiah motion because it found the claim procedurally

defaulted; this decision precludes our review.

     Schmitt    also argues that we can review his Massiah claim

because § 19.2-266.2 is not an independent and adequate state

ground due to its irregular enforcement.     When a state court has

found a claim to be procedurally defaulted on independent state

grounds, “that ground must be a constitutionally ‘adequate’ one.”

Skipper, 130 F.3d at 609 (quoting James v. Kentucky, 466 U.S. 341,

348-49 (1984)).    “This means that it must be a ‘firmly established

and regularly followed state practice.’”      Id.     “As a general

matter, whenever a procedural rule is derived from state statutes

and supreme court rules, as this one is, the rule is necessarily

‘firmly established.’”    O’Dell v. Netherland, 95 F.3d 1214, 1241

(4th Cir. 1996).   Thus, the only disputed point is whether § 19.2-

266.2 is “regularly followed.”

      Schmitt cites to a few unpublished Virginia opinions to

support his argument. In the first case, Wheaton v. Commonwealth,

No. 1409-95-2, 1997 WL 191299 (Va. Cir. Ct. Apr. 22, 1997), the

Commonwealth objected to the defendant’s tardy suppression motion,


                                  37
but the trial court allowed the motion for good cause, as provided

in § 19.2-266.2, and thus the Virginia Court of Appeals reviewed

the merits of the suppression motion.             Similarly, in Evans v.

Commonwealth, No. 1963-47-2, 1998 WL 387497 (Va. Cir. App. Jul. 14,

1998), the Virginia Court of Appeals explicitly stated that the

defendant failed to comply with § 19.2-266.2, but that the trial

court “presumably” allowed the tardy motion because the defendant

exhibited good cause.       The last two cases are similarly unhelpful

to Schmitt because in Sykes v. Commonwealth, 556 S.E.2d 794 (Va.

Ct. App. 2001), the Commonwealth did not object to the defendants’

tardy motion on § 19.2-266.2 grounds and in Neal v. Commonwealth,

498 S.E.2d 422 (Va. Ct. App. 1998), the issue of § 19.2-266.2 was

not   presented.      In   summary,   Schmitt   cannot    produce     a   single

published Virginia opinion in which the Virginia Supreme Court or

the Virginia Court of Appeals has ignored the dictates of                 § 19.2-

266.2 when properly presented.11

      In   contrast   to   the   unpublished    cases    cited   by   Schmitt,

Virginia courts have recognized that the word “shall” in § 19.2-

266.2 makes the pretrial filing of suppression motions “mandatory.”



      11
      Moreover, even if Schmitt could direct us to a Virginia case
excusing compliance with § 19.2-266.2 “one decision does not likely
establish ‘inconsistent application’ of a procedural rule.      ‘An
occasional act of grace by a state court in excusing or
disregarding a state procedural rule does not render the rule
inadequate.’” Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.
2001)(quoting Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995)).


                                      38
See Upchurch v. Commonwealth, 521 S.E.2d 290, 291 (Va. Ct. App.

1999).     The Upchurch court concluded that enforcement of § 19.2-

266.2 is necessary because it preserves the Commonwealth’s right to

appeal an adverse suppression ruling.      The pretrial filing of a

suppression motion is key because the state “may not appeal an

erroneous suppression ruling after the jury is impaneled and sworn

in a jury trial.”    Id. at 292.   Thus, “[t]he justification for the

requirement of a pretrial suppression motion is readily apparent in

light of the Commonwealth’s limited right to appeal an adverse

suppression ruling.”    Id.

     In summary, the Virginia Supreme Court rejected Schmitt’s

Massiah claim on an independent and adequate state ground that is

firmly established and regularly followed in Virginia.      Thus, we

cannot review the merits of the Massiah claim unless Schmitt’s

final argument that cause and prejudice in the form of ineffective

assistance of counsel excused the procedural default. See Vinson,

436 F.3d at 417 (“federal habeas courts may not review procedurally

barred claims unless the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged violation

of federal law” (internal quotation marks omitted)).

      F.     Ineffective Assistance Relating to Massiah Claim

     Schmitt’s third and final attempt to have us review the merits

of his Massiah claim is that ineffective assistance of counsel

excused the procedural default.     Because Schmitt raised this claim


                                   39
in his state habeas proceedings and the Virginia Supreme Court

decided the merits of this ineffective assistance of counsel claim,

we review its decision pursuant to the strictures of 28 U.S.C.A. §

2254.     And as set forth in Part II-C, the Strickland standard

governs our review of the ineffective assistance of counsel claim.

     On state habeas review, the Virginia Supreme Court found no

Massiah violation occurred because Sauer was not a government agent

and Schmitt’s ineffective assistance of counsel claim necessarily

failed because Schmitt could not have successfully suppressed the

tape.     As noted earlier, the district court, after conducting an

evidentiary hearing, disagreed with the Virginia Supreme Court and

found that Sauer functioned as a government agent when he taped the

phone call.    Therefore, the conversation violated Schmitt’s Sixth

Amendment     right   to   counsel,        as   established   in   Massiah.12

Nevertheless, the district court concluded that Schmitt’s counsel’s

failure to move to suppress the tape pre-trial did not constitute

ineffective assistance of counsel because it was a reasonable

tactical decision made by defense counsel.

     Schmitt puts forward three arguments for why defense counsel’s

performance was objectively unreasonable:              (1) defense counsel

should have recognized that they could not place the tape into



     12
      As previously mentioned, the Commonwealth has not appealed
the district court’s finding that Schmitt was acting as a
government agent.


                                      40
evidence during the guilt phase pursuant to Virginia law; (2)

defense counsel should have filed a pretrial motion in limine to

determine whether the tape would be admitted as an exception to the

hearsay rule by the prosecution; and (3) defense counsel “failed to

fully   appreciate   the   value   of   the    Schmitt/Sauer   tape    to   the

prosecution at the penalty phase.”        (Appellant’s Br. at 72.)

     At the outset, we briefly review the facts facing Schmitt’s

counsel prior to trial.       It was without question that Schmitt

committed the robbery and the murder; the only point truly at issue

was whether Schmitt committed capital murder.          Prior to trial, the

prosecution provided Schmitt’s counsel with a transcript of the

Sauer/Schmitt telephone call.           From the transcript, Schmitt’s

counsel quickly ascertained that the prosecution could use the tape

during the guilt and sentencing phases because the tape contained

inculpatory statements by Schmitt and showed a lack of remorse.

Schmitt told Sauer that he robbed the bank and that he did not

abandon the robbery when the security guard approached him because

he was “committed” to the robbery.            (J.A. at 211.)   Schmitt also

stated that the security guard’s “eyes got real big” when he saw

Schmitt’s gun.

     Moreover, Schmitt’s counsel knew that the bank surveillance

tape did not depict the shooting and that none of the bank

employees could testify to how the shooting occurred.                 In fact,

Schmitt was the only person who could testify to how the shooting


                                    41
occurred and his phone call to Sauer, whom he believed at the time

was his friend, provided a believable version of the facts.          To the

defense’s benefit, Schmitt described in detail the struggle between

himself and the security guard and how he did not intend to kill

the guard. The tape also revealed Schmitt’s humane side because he

repeatedly   expressed   concern   over    his   friends   that   had   been

implicated in the robbery.     Schmitt’s defense counsel also knew

that if the jury convicted Schmitt on the capital murder charge,

they could still successfully have Lt. Clarcq testify to the

remorse Schmitt felt after the murder and how Schmitt did not

intend to kill the security guard.        In essence, Schmitt’s counsel

recognized that the worst-case scenario was that the prosecution

would not introduce the Sauer/Schmitt tape during the guilt phase,

but choose to introduce it during the sentencing phase.           Even with

that possibility (which bore true), Schmitt’s counsel determined

that the most sound decision was to not make any move toward the

suppression of the one piece of evidence that could have exculpated

Schmitt from the capital murder charge.

     Schmitt’s argument that his counsel were ineffective for

failing to recognize that they could not place the tape into

evidence during the guilt phase is without merit because Schmitt’s

trial counsel were experienced lawyers with a full grasp of the

relevant law and facts.     Mr. Collins expressly stated that “the

status of law in Virginia is that if a defendant makes inculpatory


                                   42
statements, that’s admissible against his penal interest. However,

if he makes exculpatory statements, that is not admissible.” (J.A.

at 1095.)   Schmitt’s trial counsel, recognizing that Schmitt made

inculpatory statements on the tape, reasonably believed that the

Commonwealth would move the tape into evidence during the guilt

phase and, accordingly, believed that they need not worry about the

fact that they could not enter it into evidence.            Because this

court must assess the reasonableness of Mr. Collins’s conduct at

the time he chose not to move to suppress the tape and because Mr.

Collins’s decision was based on a full grasp of the facts and the

relevant law, we cannot say that his decision was objectively

unreasonable.    See Strickland, 466 U.S. at 690 (“strategic choices

made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable”).

     Schmitt’s argument that his attorneys should have filed a

pretrial motion in limine also carries little force.         The essence

of this argument is that Schmitt’s counsel could have proceeded in

an   elaborate   scheme   by   filing   a   motion   in   limine   on   the

admissibility in the guilt phase of the transcript of the call

between the crisis negotiator, Lt. Clarcq, and Schmitt on the night

of his arrest. According to Schmitt, this motion would have served

as a “stalking horse” to determine the outcome if a similar motion

was filed on the more crucial Sauer/Schmitt tape.         Schmitt argues

that if the motion in limine on the Clarcq transcript failed,


                                   43
defense counsel could have moved to suppress the Sauer/Schmitt

tape.

     Schmitt is correct that the filing of a motion in limine may

have shed some light on the risk that his attorneys were taking by

failing pretrial to move to suppress the Sauer/Schmitt tape.

Nevertheless, this argument misses the mark.               Mr. Collins and Mr.

Cooley   were   well-aware     that   they   stood    on   solid    footing   for

suppressing the Sauer/Schmitt tape and that they probably could not

move the Sauer/Schmitt tape into evidence during the guilt phase on

their own. Defense counsel, however, chose not to move to suppress

the Sauer/Schmitt tape because the tape was the most convincing

guilt phase evidence that Schmitt accidentally shot the security

guard.    In fact, Schmitt’s attorneys testified that any pretrial

motion relating to the Sauer/Schmitt tape or the crisis negotiator

transcript would have tipped off the prosecution that the defense

wanted to use the tapes during the guilt phase and thus encouraged

the prosecution not to submit the Sauer/Schmitt tape during the

guilt phase.    Admittedly, Mr. Cooley testified that, in hindsight,

he would have filed a pretrial motion to suppress the Sauer/Schmitt

tape at the penalty phase while simultaneously seeking admission of

the tape at the guilt phase.           Even with the acceptance of Mr.

Cooley’s statement that he should have filed a bifurcated motion as

a reasonable defense strategy, that acceptance does not render the

trial    strategy   actually    instituted    by     Mr.   Cooley   objectively


                                      44
unreasonable.       In hindsight, almost every lawyer, whether he has

won or lost, recognizes that he could have improved upon some part

of his performance at trial, but that honest recognition does not

necessarily       mean    that     his   performance       was    constitutionally

ineffective.      We agree with the district court that

       Counsel’s best hope for admitting the most direct and
       clear evidence of Schmitt’s only defense to the capital
       murder charge rested in the prosecution’s introduction of
       the Sauer tape in the guilt phase of the trial. Measured
       from that perspective and considering the reasonably
       perceived costs and the significant potential benefits,
       the decision made by counsel was not “outside the wide
       range of professionally competent performance” to forego
       a pretrial motion to suppress the tape at issue.

(J.A. at 1564 (quoting Strickland, 466 U.S. at 490).) As such,

Schmitt’s counsel were not ineffective for failing to file a motion

in limine before trial.

       Finally,    Schmitt        contends    that   his    trial    counsel     were

ineffective because they failed to fully appreciate how damaging

the Sauer/Schmitt tape would be at the sentencing phase.                       As we

have   repeatedly        noted,    Schmitt’s   counsel     well     understood    the

double-edged nature of the Sauer/Schmitt tape. (J.A. 1103 (Mr.

Collins noting that the Sauer/Schmitt tape was “more harmful than

beneficial” at the sentencing phase).)               However, they reasonably

believed that the best defense to a death sentence would be a

strong defense during the guilt phase using the Sauer/Schmitt tape

and they had good reason to believe that the prosecution might move

the tape into evidence. Furthermore, when confronted with the fact


                                         45
that the tape was admitted only at the sentencing phase, Schmitt’s

trial counsel made the best of a bad situation by using the

Sauer/Schmitt    tape     to   defeat    the   vileness   aggravating     factor

proposed by the prosecution.              Thus, it is possible that the

suppression of the Sauer/Schmitt tape could have resulted in the

jury finding present both the vileness and future dangerousness

factors.   Schmitt’s trial counsel effectively weighed the “trade-

off” between suppressing the tape and allowing the prosecution to

use the tape in the sentencing phase; although in hindsight their

decision did not bear fruit, the decision to forego moving to

suppress   the     tape    was    an     objectively      reasonable     choice.

Accordingly,     the   Virginia    Supreme     Court’s    rejection    of    this

ineffective assistance of counsel claim was not unreasonable, and

we may not review the merits of Schmitt’s Massiah claim.

                                        III.

     Although we conclude that the prosecution’s missteps in this

case did not affect the outcome of the trial, we emphasize that the

intentional     suppression      of     impeachment    material    and      other

prosecutorial misconduct should not be taken lightly.             The Supreme

Court has long emphasized the special role that prosecutors play in

our judicial system. See Banks, 540 U.S. at 696 (compiling cases).

And we could not agree more with the district court’s conclusion

that this prosecution team displayed a disconcerting lack of

respect for its sole responsibility to ensure “that justice shall


                                         46
be done,” as opposed to merely winning the case.   Kyles, 514 U.S.

at 439 (internal quotation marks omitted).   We strongly encourage

the state prosecution team to revisit and review its obligations

under Virginia state law and constitutional law, especially in

light of the fact that the misconduct was not confined to a single

incident.

                               IV.

     For the foregoing reasons, the judgment of the district court

is

                                                         AFFIRMED.




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