                                             Filed:   December 17, 1998

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 98-3
                            (CA-95-883-3)



George Adrian Quesinberry, Jr.,

                                               Petitioner - Appellant,

           versus


John Taylor, Warden, Sussex I State Prison,

                                                Respondent - Appellee.



                              O R D E R



     The court amends its opinion filed December 7, 1998, as

follows:

     On page 5, second full paragraph, line 3 -- the citation to

“Pennsylvania v. Tinsley” is corrected to read “Pennsylvania v.

Finley.”

                                          For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE ADRIAN QUESINBERRY, JR.,
Petitioner-Appellant,

v.
                                                                      No. 98-3
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-95-883-3)

Argued: September 21, 1998

Decided: December 7, 1998

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

_________________________________________________________________

Affirmed by published opinion. Senior Judge Butzner wrote the opin-
ion, in which Judge Niemeyer and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Albert Peter Brodell, WILLIAMS, MULLEN, CHRIS-
TIAN & DOBBINS, Richmond, Virginia, for Appellant. Donald
Richard Curry, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Patrick R. Hanes, WILLIAMS, MULLEN, CHRISTIAN &
DOBBINS, Richmond, Virginia; Donald R. Lee, Jr., MACAULEY,
LEE & POWELL, Richmond, Virginia; Robert E. Lee, Jr., VIR-
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Richmond, Virginia, for Appellant. Mark L. Earley, Attorney General
of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee.

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

George Quesinberry appeals the district court's denial of his peti-
tion for a writ of habeas corpus. Quesinberry was convicted of capital
murder, breaking and entering with the intent to commit larceny and
robbery, and the use of a firearm in the commission of a burglary,
robbery, and capital murder. He was sentenced to death. We affirm
the district court's judgment.

I

The facts are briefly outlined in this opinion; a full recitation may
be found in the Virginia Supreme Court opinion on direct appeal.
Quesinberry v. Commonwealth, 241 Va. 364, 368-70, 402 S.E.2d 218,
221-22 (1991). Absent exceptional circumstances, a state court's find-
ings of fact are binding on this court. Sumner v. Mata, 449 U.S. 539,
546-47 (1981).

On September 25, 1989, Quesinberry and Eric K. Hinkle broke into
the warehouse of Tri City Electric Company. Although they did not
expect to find anyone at the warehouse, Quesinberry had with him a
gun which he had taken from his step-mother's home. They arrived
at the warehouse at approximately 6:00 a.m. and pried open a rear
door with a screwdriver. While in the building Quesinberry and
Hinkle stole a pair of walkie-talkies, three rolls of stamps, and rolls
of coins.

When Thomas L. Haynes, the owner of Tri City, found the intrud-
ers in a warehouse office, he asked them what they were doing. Que-

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sinberry told Hinkle to shoot Haynes, but Hinkle did not fire.
Quesinberry took the gun from Hinkle and shot Haynes twice in the
back. As Hinkle and Quesinberry were leaving the warehouse, they
passed by Haynes, who was lying on the floor and tried to push him-
self up. Quesinberry hit Haynes on the head at least twice with the
pistol.

Quesinberry and Hinkle learned of Haynes' death from a television
report. Hinkle turned himself in later that day and gave a report that
implicated Quesinberry. Quesinberry was arrested, and after being
advised of his rights gave a detailed statement to the police which
described his role in the murder.

On January 22, 1990, a Chesterfield County, Virginia, grand jury
indicted Quesinberry for capital murder, breaking and entering with
the intent to commit larceny and robbery, and the use of a firearm in
the commission of burglary, robbery, and murder. On May 2, 1990,
Quesinberry was convicted of all charges. On May 4, 1990, during the
penalty phase of the trial, the jury found that the statutory aggravating
circumstances of "future dangerousness" and "vileness" applied to
Quesinberry, and he was sentenced to death. The Supreme Court of
Virginia affirmed the convictions and sentence of death. Quesinberry
v. Comm., 241 Va. 364, 402 S.E.2d 218 (1991). The United States
Supreme Court denied certiorari. Quesinberry v. Virginia, 502 U.S.
834 (1991).

Quesinberry filed his state habeas corpus petition with the help of
two court-appointed attorneys on April 20, 1993. On March 3, 1994,
the petition was denied. The Supreme Court of Virginia denied his
appeal on December 8, 1994, and his petition for rehearing on Janu-
ary 13, 1995. The United States Supreme Court denied certiorari on
June 19, 1995. Quesinberry v. Murray, 515 U.S. 1145 (1995).

On April 19, 1996, Quesinberry, with the assistance of court-
appointed counsel, filed his first federal petition for a writ of habeas
corpus. On October 20, 1997, the district court dismissed the petition,
explaining its reasons in a 53-page memorandum opinion. It subse-
quently granted a certificate of probable cause. This appeal followed.

Quesinberry raises four issues, which he describes as follows:

                    3
          1. The district court erroneously held that Quesinberry
          could not establish cause to explain the procedural
          default resulting from the refusal of state habeas coun-
          sel to pursue meritorious claims.

          2. The district court erred when it applied a procedural bar
          to Quesinberry's claim that the trial court violated Que-
          sinberry's constitutional rights when it (i) inadequately
          instructed jurors regarding Quesinberry's Fifth Amend-
          ment rights, (ii) received the jurors' verdicts based on
          the inadequate instructions, (iii) released the jurors from
          the guilt phase proceedings, (iv) denied Quesinberry's
          request for a mistrial, and (v) inadequately recharged
          the jurors.

          3. The district court erred in holding as a matter of law
          that trial counsel were not ineffective in failing to inter-
          view Eric Hinkle or otherwise discover the information
          he possessed regarding the trial issues.

          4. The district court erred in finding that good cause had
          not been shown to grant Quesinberry's discovery-
          related motions.

We review the district court's conclusions of law de novo, and we
will not set aside its findings of fact unless they are clearly erroneous.
Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997); Fed. R. Civ.
P. 52. We agree with the district court that the Anti-terrorism and
Effective Death Penalty Act of 1996 (AEDPA) is inapplicable
because Quesinberry's federal petition for a writ of habeas corpus was
pending prior to the effective date of the AEDPA. See Lindh v.
Murphy, 117 S.Ct. 2059, 2063 (1997).

II

After he was convicted, Quesinberry appealed to the Virginia
Supreme Court, but he did not allege ineffective assistance of his trial
counsel. Quesinberry then filed a petition for habeas corpus in state
court, complaining for the first time about numerous deficiencies in
his counsel's representation during trial.

                     4
Quesinberry's first issue in his federal proceeding is premised on
what he calls the abandonment of his state habeas counsel who
declined to appeal to the state appellate court several claims including
ineffective assistance of counsel during his trial. The federal district
court, finding no cause, held that Quesinberry's claims were defaulted
because he did not assign them as error in his petition to the Virginia
Supreme Court pertaining to his appeal from the dismissal of his state
habeas corpus. See Coleman v. Thompson, 501 U.S. 722, 750 (1991)
(requiring cause, among other reasons, for excusing a default).

The difficulty with Quesinberry's first issue is the lack of a consti-
tutional right to counsel in a collateral attack upon his conviction. See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Inasmuch as Que-
sinberry had no constitutional right to counsel to represent him in
state habeas proceedings, he cannot allege deficiencies of his state
habeas counsel as a cause for excusing his default. Mackall v.
Angelone, 131 F.3d 442, 446-49 (4th Cir. 1997). In agreement with
the district court, we are not persuaded by Quesinberry's arguments
that we should depart from the clearly established precedent that
brings about this result.

III

Quesinberry bases his second claim on the trial court's alleged
infringement of his Fifth Amendment right not to testify. He asserts
that the trial court did not properly instruct the jury on this issue.

At the beginning of the trial the state judge told the jury that Que-
sinberry might not testify and that if he did not testify "the Fifth
Amendment of the Constitution prevented the jury from considering
that." See Quesinberry, 241 Va. at 375, 402 S.E.2d at 225. During the
course of the proceedings defense counsel presented an instruction
that states "[t]he defendant does not have to testify. The exercise of
that right cannot be considered by you." See Quesinberry, 241 Va. at
375 n.4, 402 S.E.2d at 225 n.4. Quesinberry chose not to testify.

When the trial judge read the jury instructions, he inadvertently
omitted the instruction that Quesinberry's failure to testify could not
be held against him. Apparently neither the prosecution nor the
defense called the omission to the judge's attention. After the jury

                     5
returned its verdict of guilt in the first phase of the trial, the judge told
the jury to go to lunch in the custody of the sheriff and reminded
them:

          [B]ecause the case is still going on and there are other mat-
          ters of such severity that you must consider, do not talk
          among yourselves; do not let anybody talk to you; do not let
          anybody approach you; do not respond to any comments; try
          to avoid what would be inadvertent communication from
          anyone of any source.

See Quesinberry, 241 Va. at 374, 402 S.E.2d at 225. While at his own
lunch, the trial judge realized that he had omitted to give the instruc-
tion pertaining to the defendant's right not to testify. The trial judge
notified counsel of the omitted instruction. Quesinberry moved for a
mistrial, and the judge denied the motion. The judge then told the
jury: "You are instructed that the defendant does not have to testify.
The exercise of that right cannot be considered by you." Quesinberry,
241 Va. at 376, 402 S.E.2d at 226. The judge also told the jury to con-
sider this instruction along with the other instructions and the evi-
dence. He asked them to retire to their room and to state their verdict
in written form. In about 15 minutes, the jury returned with their ver-
dict, finding Quesinberry guilty. Quesinberry, 241 Va. at 377, 402
S.E.2d at 226.

On his direct appeal to the Supreme Court of Virginia, Quesinberry
assigned error to the trial judge's denial of his motion for a mistrial.
The Supreme Court carefully and fully recounted the facts. See
Quesinberry, 241 Va. at 374-77, 402 S.E.2d at 225-26. It then held:

          Quesinberry contends that because Code § 19.2-264.3
          creates a bifurcated proceeding in a capital murder trial, the
          jury was discharged from its responsibilities on the issue of
          guilt after its initial verdict had been returned and, therefore,
          the trial court should not have reinstructed the jury. We dis-
          agree.

          We have consistently applied the rule . . . that once a jury
          is discharged and leaves the presence of the court, it cannot
          be reassembled to correct a substantive defect in its verdict.

                      6
          Here, however, the jury had neither been discharged nor left
          the presence of the court. . . . The sanctity of the jury was
          neither violated nor subjected to any hazard of suspicion. It
          was the trial court's responsibility to reinstruct the jury, and
          we hold that the court properly discharged that duty.

Quesinberry, 241 Va. at 377, 402 S.E.2d at 226 (citations omitted).

In his assignments of error and in his brief on direct appeal, Que-
sinberry did not refer to any federal constitutional provision. Instead
he cited Virginia Code Ann. § 19.2-264.3 (bifurcated trials) and Vir-
ginia case law dealing with discharge of juries in trials which were
not bifurcated. The Virginia Supreme Court's disposition was based
on an independent state law ground. Discussing whether the jury was
discharged as a matter of Virginia law, it held that in a bifurcated trial
while the jury was in the custody of the sheriff and within the control
of the court, it had not been discharged.

Quesinberry again raised the same issue in his federal petition for
habeas corpus. In these proceedings he adverted to his federal consti-
tutional right not to testify. But he premised his argument on the
assertion that the jury was discharged at the conclusion of the guilt
phase of the bifurcated trial and, consequently, he argues, the district
court erred in belatedly instructing them. These arguments fail
because the Virginia Supreme Court held that as a matter of Virginia
law the jury was not discharged.

Because Quesinberry did not contend on direct appeal that the rein-
struction violated a federal constitutional right, he has failed to
exhaust the claim he now seeks to raise. See Duncan v. Henry, 513
U.S. 364, 365-66 (1995) (per curiam) (holding that argument to state
court that an evidentiary ruling by trial court violated state law was
insufficient to exhaust claim that the ruling constituted a violation of
a federal constitutional right, and rejecting the argument that similar-
ity of claims is adequate to exhaust). Because presentation of this
claim to the state court at this juncture would be fruitless, see Va.
Code Ann. § 8.01-654(B)(2) (Michie Supp. 1998) (providing that
"[n]o writ shall be granted on the basis of any allegation the facts of
which petitioner had knowledge at the time of filing any previous
petition"), it is properly considered to be procedurally barred. See

                     7
George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ("A claim that
has not been presented to the highest state court nevertheless may be
treated as exhausted if it is clear that the claim would be procedurally
defaulted under state law if the petitioner attempted to raise it at this
juncture."). We therefore hold this claim to be procedurally defaulted.

This case is not unlike Summers v. United States , 11 F.2d 535 (4th
Cir. 1926), in which the district court realized, after the jury had ren-
dered its verdict, that the defendant was absent when it gave a supple-
mentary charge. Summers, 11 F.2d at 585-86. Although the court had
discharged the jury, it had remained in the courtroom with no oppor-
tunity to discuss the case with others, without the intervention of any
other business. The court then reinstructed the jury, which retired
again and brought back the same verdict of guilty. Id. at 586. On
appeal this court held, as a matter of federal law, that as long as the
jury "remains an undispersed unit, within control of the court," the
jury had not been finally discharged.

In the instant case, the district court properly dismissed this issue.

IV

Quesinberry's third claim is that the district court erred in holding
that trial counsel was not ineffective in failing to interview Hinkle or
otherwise discover information he possessed regarding the murder.
He claims that "Trial Counsel were wholly unprepared to respond to
the Commonwealth's use of Hinkle at trial or to adequately cross-
examine Hinkle." Appellant's Br. at 60. Quesinberry asserts that if
trial counsel were properly prepared, they would have brought out
that prosecutors coached Hinkle to testify that Quesinberry struck
Haynes more than once.

The Commonwealth used Hinkle only in the penalty stage of the
trial. His testimony did not substantially deviate from Quesinberry's
confession. Quesinberry's counsel had a private investigator interview
Hinkle twice; then Hinkle's counsel objected to additional interviews.
Quesinberry's counsel also moved for discovery, and the Common-
wealth opened its files which provided the transcript of Hinkle's inter-
view with the police. Quesinberry's counsel cross-examined Hinkle
on several key points. Hinkle testified that he saw Quesinberry strike

                     8
the victim with a pistol once, but he heard more blows. Hinkle admit-
ted on cross-examination that he had previously stated that Quesin-
berry hit Haynes only once, that Hinkle had been drinking the night
of the murder, and that Hinkle expected to benefit from his testimony.

Hinkle's testimony is consistent with the medical examiner's;
based on the autopsy and photographs taken by the medical examiner,
the Supreme Court found that there were at least two blows to the vic-
tim's head. This finding is binding on us. Sumner v. Mata, 449 U.S.
at 546-47. The district court held that Quesinberry could not establish
prejudice. Strickland v. Washington, 466 U.S. 668 (1984), requires
petitioner to show that his counsel's performance was objectively
unreasonable and that he was prejudiced by counsel's performance.
Strickland, 466 U.S. at 687-89, 694. To establish prejudice a peti-
tioner must show "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. If there is no prejudice, a court need
not review the reasonableness of counsel's performance. Id. at 697.

Quesinberry fails to meet the Strickland prejudice standard. As the
district court noted, trial counsel were aware that by cross-examining
Hinkle exhaustively they would be opening up testimony concerning
the vileness of Quesinberry's acts. Trial counsel knew of damaging
information that Hinkle had provided to the private investigator, and
they were unsure if the prosecution possessed the same knowledge.
Moreover, discrepancies in Hinkle's versions of events were rela-
tively minor in light of all the evidence against Quesinberry. See
Strickland, 466 U.S. at 695 ("In making this[prejudice] determina-
tion, a court hearing an ineffectiveness claim must consider the total-
ity of the evidence before the judge or jury."). The district court did
not err.

V

Quesinberry's final assignment of error pertains to the district
court's denial of his request for discovery. Rule 6(a) of the Rules
Governing Section 2254 Cases requires a habeas petitioner to show
good cause before he is afforded an opportunity for discovery. A dis-
trict court's decision on good cause is reviewed for an abuse of dis-
cretion. Bracy v. Gramley, 117 S.Ct. 1793, 1799 (1997). Good cause

                    9
is shown if the petitioner makes a specific allegation that shows rea-
son to believe that the petitioner may be able to demonstrate that he
is entitled to relief. Harris v. Nelson, 394 U.S. 286, 300 (1969);
Bracy, 117 S.Ct. at 1799 (approving the Harris standard).

Quesinberry says that he made specific allegations establishing
good cause justifying discovery. These allegations dealt with the
alleged ineffectiveness of his counsel, influences the prosecution
allegedly brought to bear on Hinkle, and the abandonment of
defaulted claims by state habeas counsel. We have dealt with these
subjects in Parts II and IV of this opinion. His requests for discovery
are without merit, and the district court did not abuse its discretion in
denying them.

VI

The judgment of the district court is affirmed.

AFFIRMED

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