UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARL HAMILTON CHICHESTER,
Petitioner-Appellant,

v.
                                                               No. 98-15
JOHN TAYLOR, 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-97-155-3)

Argued: October 28, 1998

Decided: January 6, 1999

Before WILKINSON, Chief Judge, and LUTTIG and
MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Richmond, Virginia, for
Appellant. Katherine P. Baldwin, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEFS: Mark E. Olive, VIRGINIA CAPITAL REP-
RESENTATION RESOURCE CENTER, Richmond, Virginia; Jeane
A. Thomas, Alyson L. Redman, CROWELL & MORING, Washing-
ton, D.C., for Appellant. Mark L. Earley, Attorney General of Vir-
ginia, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Carl Hamilton Chichester appeals the district court's dismissal of
his petition for writ of habeas corpus, challenging his conviction in
Virginia state court for capital murder. We deny Chichester's motion
for a certificate of appealability and dismiss the appeal.1

I.

At approximately 10:30 p.m. on August 16, 1991, two black men
entered a Little Caesars pizza restaurant in Manassas, Virginia, wear-
ing dark clothing, masks, and gloves, and carrying semi-automatic
pistols. One man was about three inches taller than the other. The
shorter man jumped over the counter, took money from one of the
two cash registers, and demanded that Timothy Rigney, the manager
of the restaurant, open the second register. The taller man remained
on the customer side of the counter. Rigney attempted to open the
register, but was unable to do so. When Rigney indicated that he
_________________________________________________________________
1 Because appellant filed his petition for writ of habeas corpus on June
19, 1997, after enactment of the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA) on April 24, 1996, our review of the petition
is governed by the deferential standards of 28 U.S.C. § 2254(d), as
amended by the AEDPA. See Green v. French, 143 F.3d 865, 868 (4th
Cir. 1998). However, like the district court, we conclude that appellant
would not be entitled to relief even under the more stringent pre-AEDPA
standards of review.

                    2
could not open the register, one of the two men shot and killed him.
The two men then fled the scene on foot.

Because both men were masked, none of the four eyewitnesses to
the murder could identify either of them. However, Jack Burdette, a
man who was in the vicinity at the time of the murder, told police that
night that he had seen two men wearing dark clothing running from
the direction of the restaurant. On February 18, 1993, Burdette told
police that he had recognized one of the two men as appellant Carl
Hamilton Chichester ("Chichester"). He later testified that he had not
named Chichester on the night of the murder because he was con-
cerned about the safety of his family.

Of the three eyewitnesses who testified at trial, two testified that
they thought that the man on the customer side of the counter --
believed to be Chichester -- was the shooter, and one testified that
she was unsure which man was the shooter. Denise Matney, an
employee, originally told police that she was unsure which man was
the shooter, but testified at trial that it was the man on the customer
side of the counter. Robert Harris, a customer, also testified that the
man on the customer side of the counter was the shooter. Patricia
Eckert, Harris' girlfriend, originally told police that she thought that
the man on the employee side of the counter was the shooter, but tes-
tified at trial that she was unsure of the identity of the shooter because
she had buried her face in Harris's chest in fright. A fourth eyewit-
ness, William Fruit, a 16-year-old employee, was unavailable to tes-
tify at trial, but originally told police that he thought that the man on
the employee side of the counter was the shooter.

At trial, the prosecution introduced evidence relating to an earlier
robbery of Joe's Pizza for which Chichester and his alleged accom-
plice had been convicted. On August 7, 1991, nine days before the
Little Caesars robbery, two black men entered Joe's Pizza in Manas-
sas, wearing dark clothing, masks, and gloves, and carrying semi-
automatic pistols. One man was noticeably taller than the other. The
shorter man proceeded immediately to the cash register; the taller man
held his gun to the head of one of the employees and fired, but some-
how missed. The two men then fled the scene on foot. In addition to
evidence relating to the Joe's Pizza robbery, the prosecution intro-
duced a substantial amount of circumstantial and forensic evidence

                     3
implicating Chichester and his alleged accomplice in the Little Cae-
sars robbery, including evidence that a shoeprint left on the counter
at Little Caesars matched that of a shoe found in the home of Chi-
chester's alleged accomplice, and evidence that Chichester told a
friend that he needed to dispose of a pistol because"he had a body
on the gun."

In response to the prosecution's evidence, the defense introduced
evidence suggesting that Chichester was in Washington at his job in
the family janitorial business on the evening of the murder. Chiches-
ter's mother, Vivian Chichester, testified that she had Chichester pen-
cilled in on her schedule to work that evening, and Chichester's sister,
Vivian Pina, who was also scheduled to work that evening, testified
that she frequently worked with Chichester on weekends. Neither
Chichester's mother nor his sister, however, had any independent rec-
ollection that Chichester actually worked on the evening of the mur-
der.

Chichester was found guilty of capital murder, robbery, and fire-
arms charges on September 20, 1993. On December 2, the trial judge
imposed a sentence of death, based on the jury's findings of the
aggravating factor of future dangerousness and no mitigating circum-
stances. The Virginia Supreme Court affirmed the sentence on Sep-
tember 16, 1994, see Chichester v. Commonwealth, 248 Va. 311
(1994), and, on February 21, 1995, the United States Supreme Court
denied Chichester's petition for writ of certiorari, see Chichester v.
Virginia, 513 U.S. 1166 (1995). On August 30, 1995, Chichester filed
a petition for writ of habeas corpus in the Virginia Supreme Court. On
November 19, 1996, the petition was dismissed, and, on January 10,
1997, Chichester's petition for rehearing was denied. On June 19,
1997, Chichester filed this petition for writ of habeas corpus in the
United States District Court for the Eastern District of Virginia. The
district court dismissed the petition on April 7, 1998. From that order
of dismissal, Chichester appealed.

II.

Appellant initially raises two types of claims of ineffective assis-
tance of counsel. First, appellant asserts that trial counsel was ineffec-
tive for failing to investigate and present evidence allegedly

                     4
suggesting that the man on the customer side of the counter -- pur-
portedly Chichester -- was not the "triggerman" in the shooting. Sec-
ond, appellant asserts that trial counsel was ineffective for failing to
impeach the testimony of Jack Burdette, the only witness to place
Chichester at the scene of the crime. Appellant also contends that the
district court incorrectly denied his motion for the appointment of
experts to assist in the development of his claim of prejudice resulting
from trial counsel's actions. We address each of these claims in turn,
evaluating appellant's ineffective assistance claims under the two-
prong standard of Strickland v. Washington, 466 U.S. 668 (1984).

A.

Appellant first asserts that trial counsel was ineffective for failing
to investigate and present various pieces of evidence allegedly sug-
gesting that Chichester was not the "triggerman" in the shooting, and
therefore not guilty of capital murder under Virginia law. See Johnson
v. Commonwealth, 220 Va. 146, 149-50 (1979).

We begin by considering whether it was unreasonable for counsel
to fail to introduce evidence at trial that Chichester was not the
shooter. At trial, counsel relied heavily on the defense that Chichester
was not involved in the Little Caesars robbery at all, presenting evi-
dence from Chichester's mother and sister suggesting that Chichester
was at his job in Washington as a janitor in the family business on
the evening of the murder. See supra at 4. In order to present evidence
that Chichester's accomplice, and not Chichester, was the shooter,
counsel would have had to acknowledge the possibility that Chiches-
ter was present at the crime scene -- an admission that would have
seriously undermined Chichester's alibi defense and potentially sub-
jected Chichester to conviction on all of the non-murder charges. We
therefore agree with the district court that trial counsel's failure to
present such inconsistent evidence was not unreasonable. See Mazzell
v. Evatt, 88 F.3d 263, 268 (4th Cir.) (holding that trial counsel's fail-
ure to seek jury instruction that defendant was accessory to crime,
rather than principal, was not unreasonable because it would have
been inconsistent with trial counsel's strategy to pursue an alibi
defense), cert. denied sub nom. Mazzell v. Moore, 519 U.S. 1016
(1996).

                     5
We next consider whether, even if trial counsel was not under an
obligation to present evidence at trial that his client was not the trig-
german, counsel nevertheless should have investigated such evidence,
either in order to test the validity of the alibi defense or in order to
impeach evidence presented by the Commonwealth at trial. In
Strickland, the Supreme Court specifically addressed the question of
the scope of trial counsel's duty to investigate:

          The reasonableness of counsel's actions may be determined
          or substantially influenced by the defendant's own state-
          ments or actions. Counsel's actions are usually based, quite
          properly, on informed strategic choices made by the defen-
          dant and on information supplied by the defendant. In par-
          ticular, what investigation decisions are reasonable depends
          critically on such information. For example, when the facts
          that support a certain potential line of defense are generally
          known to counsel because of what the defendant has said,
          the need for further investigation may be considerably
          diminished or eliminated altogether. And when a defendant
          has given counsel reason to believe that pursuing certain
          investigations would be fruitless or even harmful, counsel's
          failure to pursue those investigations may not later be chal-
          lenged as unreasonable. In short, inquiry into counsel's con-
          versations with the defendant may be critical to a proper
          assessment of counsel's investigation decisions, just as it
          may be critical to a proper assessment of counsel's other liti-
          gation decisions.

Strickland, 466 U.S. at 691; see also Barnes v. Thompson, 58 F.3d
971, 979-80 (4th Cir. 1995) ("[T]rial counsel. . . may rely on the
truthfulness of his client and those whom he interviews in deciding
how to pursue his investigation.").

As the Supreme Court suggests, therefore, we begin our inquiry by
examining what Chichester told trial counsel about his whereabouts
on the evening of the murder. Chichester did not testify at any stage
of the trial or sentencing proceedings. Trial counsel, however, submit-
ted an affidavit, stating as follows:

          Chichester and his mother told us that his mother and sister,
          Vivian, were the only witnesses who knew his whereabouts

                     6
          on the night of the crime and that there were no independent
          witnesses who could testify as to alibi. We relied on this
          information in our investigation of the case and presented
          his mother and sister as witnesses at trial.

J.A. at 3262 (affidavit of R. Randolph Willoughby and Bryant A.
Webb) (emphasis added). We read this statement unambiguously to
mean that Chichester and his mother told trial counsel that Chichester
was elsewhere on the night of the murder and that this could be con-
firmed by his mother and sister. To hold that it was objectively unrea-
sonable for trial counsel not to fully investigate other possible
defenses under which it would be conceded that Chichester was at the
scene of the crime -- and indeed a participant in the crime itself --
would contravene the Supreme Court's clear announcement in
Strickland that trial counsel may rely on information provided by their
client in determining what lines of inquiry to pursue. Consequently,
we conclude that any decision by trial counsel not to investigate,
much less present, evidence that appellant was not the triggerman was
also reasonable.

Even assuming that counsel had an obligation to pursue the accom-
plice defense notwithstanding appellant's reliance upon an alibi
defense, it was reasonable for counsel not to pursue, or not to pursue
further, the particular lines of inquiry urged by appellant. First, appel-
lant asserts that trial counsel should have located, and presented the
testimony of, William Fruit, the 16-year-old employee who originally
told police that the man on the employee side of the counter was the
shooter. However, we conclude that trial counsel did make reasonable
efforts to locate Fruit, even if they were not under an obligation to do
so. Trial counsel attempted to find Fruit at the address that had been
given to police at the time of the shooting, but found that he had
apparently moved. J.A. at 3264. Although Fruit's new address
appears to have been publicly available, id. at 3507, trial counsel was
aware of the fact that the Commonwealth had subpoenaed Fruit to tes-
tify at the earlier trial of Chichester's alleged accomplice, but the sub-
poena had been returned because Fruit could not be found, id. at
3264. Further, even if trial counsel had located Fruit, it seems unlikely
that Fruit would have been willing to testify: Fruit's family appears
to have been reluctant to allow even the Commonwealth's attorneys
to talk to Fruit because of the understandable emotional trauma he

                     7
suffered from the shooting, id. at 3288, and Fruit, who has since been
located, continues to refuse to talk to appellant's attorneys, id. at
3508. Consequently, in view of the difficulty in locating Fruit and the
unlikelihood that Fruit would have been willing to cooperate even if
located, trial counsel's decision not to undertake any additional efforts
to locate Fruit was certainly reasonable.

Second, appellant asserts that trial counsel should have questioned
Patricia Eckert, one of the eyewitnesses to the murder, about the
inconsistency between her earlier statement to police that the man on
the employee side of the counter was the shooter and her subsequent
statement at trial that she did not see which man was the shooter. See
supra at 3. Again, however, trial counsel's decision not to cross-
examine Eckert in this fashion was not unreasonable. As counsel
explained, Eckert, in her testimony, had cast doubt on the testimony
of other witnesses that the shorter of the two men had jumped over
the counter, stating instead that the two men were of the same height.
J.A. at 3263-64. Because Eckert's direct testimony was actually help-
ful to the defense in this regard, trial counsel's purposeful decision
not to try to impeach Eckert's testimony on cross-examination was
reasonable as a matter of trial strategy.

Third, appellant contends that trial counsel failed to exploit testi-
mony by Denise Matney, another of the eyewitnesses, that the man
on the customer side of the counter was carrying a"box-like" gun.
Appellant argues that this description would fit the 9-millimeter hand-
gun used in the Joe's Pizza robbery, but not the .380-caliber handgun
used in the Little Caesars robbery. As the Commonwealth's ballistics
expert, Julian Mason, testified, however, a 9-millimeter handgun and
a .380-caliber handgun are "very similar in appearance." J.A. at 1587.
In view of the absence of any contrary evidence to suggest that Mat-
ney's description of the gun as "box-like" could not possibly fit a
.380-caliber handgun, trial counsel's decision not to exploit Matney's
testimony was reasonable.2
_________________________________________________________________
2 Appellant also argues that trial counsel was deficient for failing to
retain an expert to clarify that a 9-millimeter handgun, such as the one
used in the Joe's Pizza robbery, could not be used to fire a .380-caliber
bullet, such as was used in the Little Caesars murder. Mason, however,
himself testified, and the Commonwealth later stipulated, that a 9-
millimeter handgun could not be so used. J.A. at 1587, 1592.

                     8
Fourth, and finally, appellant asserts that trial counsel should have
sought and introduced expert evidence to challenge the testimony of
Mason, the Commonwealth's ballistics expert, and Dr. Frances Field,
the Commonwealth's medical examiner. Mason testified that the bul-
let used in the murder must have been fired from a distance of more
than two to three feet away because there was no gunpowder residue
on the victim's shirt. Id. at 1588. Field testified that the bullet entered
the victim's body in the upper left chest and traveled downwards and
to the right. Id. at 1085. Appellant, however, has made no showing
that contrary expert opinion exists. In the absence of any such show-
ing, appellant's argument that trial counsel's failure to seek and intro-
duce contrary opinion was unreasonable also lacks merit.3

B.

Appellant next asserts that trial counsel was ineffective for failing
to impeach the testimony of Jack Burdette, the only witness to place
Chichester at the scene of the crime. Appellant advances several
grounds on which Burdette's testimony could have been impeached,
most notably Burdette's convictions for various crimes, his alcohol-
ism, and his incomplete initial statements to the police about the Little
Caesars incident. All of these grounds for impeachment, however,
were brought out by the Commonwealth on direct testimony. J.A. at
1179-80 (convictions for various crimes), 1183-84 (alcoholism),
1193-95 (incomplete initial statements).4 We conclude that trial coun-
sel's failure to harp on this evidence during cross-examination was
_________________________________________________________________
3 Appellant further argues that trial counsel should have challenged
Field on cross-examination regarding the fact that she did not indicate in
her coroner's report whether she had recovered a bullet from the victim's
body or whether she had discovered any traces of gunpowder residue.
This claim is frivolous. Field testified that she had recovered a bullet and
given it to the police, J.A. at 1085-86, and explicitly stated in her report
that she found no gunpowder residue around the entrance wound, id. at
3276.

4 Appellant also offers, as a ground for impeachment, the fact that Bur-
dette's description of the clothing allegedly worn by the two men dif-
fered from that given by other eyewitnesses. However, trial counsel
extensively questioned Burdette on cross-examination about the details
of his description of the clothing. J.A. at 1207-09.

                     9
not unreasonable. See Hunt v. Nuth, 57 F.3d 1327, 1333 (4th Cir.
1995) (refusing to indulge in a "grading of the quality of counsel's
cross-examination").

C.

Finally, in connection with his ineffective assistance claims, appel-
lant contends that the district court incorrectly denied his request for
the appointment of experts to assist in the development of his claim
of prejudice resulting from trial counsel's actions. In order to obtain
expert assistance, appellant must show that the appointment of experts
is "reasonably necessary" for his representation. 21 U.S.C.
§ 848(q)(9). In making such a showing, appellant must demonstrate
that the appointment of experts is necessary because his habeas peti-
tion raises claims entitling him to a hearing at which such experts
could testify. See Lawson v. Dixon, 3 F.3d 743, 753 (4th Cir. 1993).
Appellant's petition, however, raises no such claims. Specifically,
because appellant failed to establish that any of trial counsel's actions
were unreasonable, it is simply unnecessary to determine whether trial
counsel's actions were also prejudicial, much less to hold a hearing
on the matter. See Strickland, 466 U.S. at 697 ("[T]here is no reason
for a court deciding an ineffective assistance claim. . . even to
address both components of the inquiry if the defendant makes an
insufficient showing on one."). Consequently, we conclude that the
district court correctly dismissed appellant's petition without granting
his request for expert assistance.

III.

Appellant next asserts that the district court should have considered
his procedurally defaulted claims because William Fruit's pretrial
statement that the man on the employee side of the counter was the
shooter constituted "new evidence" sufficient to sustain a "gateway"
actual innocence claim under Schlup v. Delo, 513 U.S. 298 (1995).5
_________________________________________________________________
5 In his brief, appellant seems to suggest that expert evidence support-
ing the argument that appellant was not the triggerman should also be
considered as "new evidence" for purposes of his actual innocence claim.
As noted above, however, appellant nowhere demonstrates that such
expert evidence even exists. See supra at 9.

                    10
Specifically, appellant challenges the district court's holding that
Fruit's pretrial statement did not constitute "new evidence" because
it was known to counsel before trial.

Even assuming arguendo that the district court somehow erred in
concluding that Fruit's pretrial statement was not"new evidence," we
hold that the statement was insufficient to sustain an actual innocence
claim under Schlup. A substantial claim of actual innocence is "ex-
tremely rare." Id. at 321, 324. In order to prevail on a "gateway" claim
of actual innocence, "the petitioner must show that it is more likely
than not that no reasonable juror would have convicted him in light
of the new evidence." Id. at 327; see also O'Dell v. Netherland, 95
F.3d 1214, 1249-50 (4th Cir. 1996) (discussing application of Schlup
standard), aff'd, 521 U.S. 151 (1997). We hold that appellant failed
to meet this high standard. At trial, the prosecution introduced the tes-
timony of two other eyewitnesses that the man on the customer side
of the counter was the shooter, forensic evidence further indicating
that the man on the customer side was the shooter, and evidence indi-
cating that testimony that Chichester said he needed to dispose of a
pistol because "he had a body on the gun." Weighing the considerable
body of evidence indicating that the man on the customer side of the
counter was the shooter against the single pretrial statement of an
underage witness that the man on the employee side of the counter
was the shooter, we conclude that it was not more likely than not that
no reasonable juror would have convicted appellant on the basis of
the evidence when taken as a whole. Because the Schlup standard was
therefore not met, we reject appellant's actual innocence claim.

IV.

Finally, appellant asserts that the district court improperly admitted
evidence of the Joe's Pizza robbery, in violation of his constitutional
rights. Specifically, appellant asserts that the evidence was admitted
in violation of the Commonwealth's rule of evidence barring the
admission of evidence of prior crimes to show propensity to commit
the crime charged. See, e.g., Spencer v. Commonwealth, 240 Va. 78,
89 (1990).

As a threshold matter, we refuse to consider whether the trial court
erroneously applied Virginia's rule regarding "bad acts" evidence,

                     11
because federal habeas relief simply does not lie for errors of state
law. "[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether a convic-
tion violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Our review, therefore,
is limited to a consideration of whether any prejudice from the admis-
sion of the evidence of the Joe's Pizza robbery so outweighed its pro-
bative value as to give rise to "circumstances impugning fundamental
fairness or infringing specific constitutional protections." Grundler v.
North Carolina, 283 F.2d 798, 802 (4th Cir. 1960).6

We conclude that the Grundler standard was not met in this case.
As the Virginia Supreme Court noted, the Joe's Pizza robbery bore
significant similarities to the Little Caesars robbery:

          Both robberies occurred within nine days and in close geo-
          graphic proximity to each other; both robbers were black,
          one was taller than the other, both were armed; both rob-
          beries appeared to have been carefully planned to minimize
          the victims' opportunity to identify the robbers; both robbers
          wore masks and gloves; on each occasion, the taller man
          retrieved the spent cartridge after firing his gun; and in both
          robberies, the robbers fled from the scene on foot, rather
          than in a vehicle, to minimize the possibility of its identifi-
          cation.

            Further, each robber appeared to be familiar with the
           premises and the role he was to play in the crimes. In both
           instances, the shorter man immediately went behind the
           counter to get the money from the cash register and
           appeared to know how to gain immediate access to the areas
           behind the counter.
_________________________________________________________________
6 Cf. Thompson v. Oklahoma, 487 U.S. 815, 878 (1988) (Scalia, J., dis-
senting) ("We have never before held that the excessively inflammatory
character of concededly relevant evidence can form the basis for a con-
stitutional attack, and I would decline to do so in this case. If there is a
point at which inflammatoriness so plainly exceeds evidentiary worth as
to violate the federal Constitution, it has not been reached here.").

                    12
Chichester, 248 Va. at 327. Having considered the substantial similar-
ities -- and few differences -- between the two robberies, we believe
that the pattern of the Joe's Pizza robbery resembled that of the Little
Caesars robbery so closely as to render evidence of the earlier robbery
highly probative. Because the significant probative value of the evi-
dence was not outweighed, much less sufficiently outweighed, by any
prejudice from its admission, the "fundamental fairness" of appel-
lant's trial was not compromised. We therefore reject appellant's
claim.

CONCLUSION

Following the dismissal of his federal habeas corpus petition,
Chichester filed a motion in this court for a certificate of appeala-
bility. See 28 U.S.C. § 2253(c)(2). Because we conclude that Chiches-
ter has failed to make the requisite "substantial showing of the denial
of a constitutional right," id., we deny Chichester's motion and dis-
miss his appeal.

DISMISSED

                    13
