                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-5


RICKY JOVAN GRAY,

                Petitioner - Appellant,

           v.

DAVID ZOOK, Warden, Sussex I State Prison,

                Respondent - Appellee.



                               No. 14-3


RICKY JOVAN GRAY,

                Petitioner - Appellant,

           v.

DAVID ZOOK, Warden, Sussex I State Prison,

                Respondent - Appellee.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.      Anthony J. Trenga,
District Judge. (1:11−cv−00630−AJT−TCB)


Argued:   September 15, 2015               Decided:   November 25, 2015


Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined.    Senior Judge Davis wrote a separate
opinion concurring in part and dissenting in part.


ARGUED:   Elizabeth   Hambourger,   CENTER  FOR   DEATH  PENALTY
LITIGATION, Durham, North Carolina; Robert Edward Lee, Jr.,
VIRGINIA     CAPITAL      REPRESENTATION     RESOURCE    CENTER,
Charlottesville, Virginia, for Appellant. Matthew P. Dullaghan,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.   ON BRIEF: Jonathan P. Sheldon, SHELDON & FLOOD,
PLC, Fairfax, Virginia; David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant.      Mark R.
Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.




                               2
DIAZ, Circuit Judge:

     Ricky Jovan Gray appeals the district court’s denial of his

petition for a writ of habeas corpus.               His appeal presents two

questions.      First, whether the Supreme Court of Virginia, in

resolving factual disputes regarding an ineffective-assistance-

of-counsel   claim   without     an       evidentiary     hearing,   made   an

“unreasonable     determination        of     the       facts”   under      the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254(d)(2).        Because we find that the state court

did not ignore Gray’s evidence or otherwise reversibly err in

resolving factual disputes on the record, we reject this first

challenge.   The second question is whether Gray may belatedly

raise in the district court a claim of ineffective assistance of

trial counsel under the Supreme Court’s decision in Martinez v.

Ryan, 132 S. Ct. 1309 (2012).         We find that the claim Gray seeks

to raise was presented to, and decided by, the state court.

Therefore, it is not subject to de novo review in the district

court under Martinez.

     Accordingly, we affirm the judgment of the district court.



                                      I.

                                      A.

     On the morning of January 1, 2006, in the course of a home

burglary, Gray murdered Bryan and Kathryn Harvey and their two

                                      3
young daughters, Ruby and Stella, by tying them up in their

basement and then cutting their throats, stabbing them, striking

them   with      a    claw    hammer,       and    setting    fire       to   their        home.

Although Gray was with two accomplices, Ray Dandridge and Ashley

Baskerville,         Gray    confessed       to    having     committed       all     of    the

killings.            The    police    officer       who   took      Gray’s     confession,

Detective        Howard       Peterman,           testified      at      trial       to     the

circumstances         in     which    Gray    confessed.            He   also       read    the

confession to the jury.

       The trial was conducted in two phases.                       In the guilt phase,

the jury convicted Gray of five counts of capital murder.                                     In

the    penalty       phase,     the    Commonwealth         introduced        evidence       of

several other killings Gray had committed near the time of the

Harvey murders, including bludgeoning his wife with a lead pipe

two months earlier and suffocating Baskerville and her mother

and stepfather a week after the Harvey murders.                               Gray offered

evidence of his parents’ abuse and neglect during his childhood,

his repeated sexual abuse at the hands of his brother from a

very early age, and Gray’s consistent drug use, beginning when

he was young.             He also offered expert testimony to connect this

evidence to his later violent behavior.                          Dr. David Lisak, a

psychologist who did not examine Gray, opined on the potential

connection       between       Gray’s    childhood          abuse     and     his     violent

behavior    as       an    adult.     Dr.    Mark     Cunningham,        a    clinical      and

                                              4
forensic psychologist who did examine Gray, testified that Gray

was unlikely to be seriously violent in prison.

       The jury issued verdicts of life imprisonment on three of

the counts and verdicts of death for the murders of Ruby and

Stella, finding the aggravating factor of “vileness.”                        On direct

appeal,       the     Supreme      Court      of   Virginia        affirmed      Gray’s

convictions and death sentences.

                                            B.

       Gray then sought state habeas relief in the Supreme Court

of Virginia. 1        Relevant here, Claim III of that petition alleges

that       Gray’s     trial      counsel     failed      to   make     a     reasonable

investigation         of   his     confession.           According     to    Gray,   he

repeatedly asked police officers for an attorney and a phone

call, but was denied both.               Gray also asserts that he told the

police that his drug use on the day of the crime, especially his

use of PCP, left him unable to remember the day’s events.                            To

fill the gaps in his memory, Gray says, police officers showed

him statements made by his accomplice Dandridge, and he adopted

Dandridge’s         account   as   his     own.    Had    Gray’s     trial    attorneys

sufficiently investigated these allegations, Gray contends, they

could have had the confession suppressed or, at least, sowed

       1
       Virginia requires habeas petitioners subject to the death
penalty to apply directly to the state supreme court. Va. Code
Ann. § 8.01-654(C)(1).



                                             5
doubt    in     the       jury’s   mind         as     to    the      extent     of      Gray’s

participation        in    the   murders.            The    warden    moved    to     dismiss,

attaching a joint affidavit from Gray’s trial attorneys.

       The     Supreme     Court    of     Virginia         dismissed     Gray’s         habeas

claims, save one not relevant here.                         In dismissing Claim III,

the    court    held      that   Gray     had       shown    neither     that    his     trial

counsel performed unreasonably, nor that he suffered prejudice

from     deficient         performance,             the     two      requirements         under

Strickland v. Washington, 466 U.S. 668, 687 (1984).                                 The court

supported      its     holding     with    the        following       findings      of   fact,

relying heavily on the affidavit of Gray’s trial attorneys:

       The record, including the affidavit of counsel,
       demonstrates that petitioner insisted to counsel that
       he knew what he was doing when he committed the
       murders and that “PCP could not be to blame.”
       Furthermore, counsel spoke to every officer involved
       in petitioner’s arrest, including Detective Peterman,
       and determined that petitioner was not provided any
       details from Dandridge’s statement before or during
       his statement to the police. The affidavit of counsel
       also demonstrates that petitioner never informed
       counsel that Detective Peterman had “fed” him the
       details of the crimes or of Dandridge’s statements to
       police and that counsel looked for but could not find
       any evidence that would have supported a motion to
       suppress petitioner’s statements to police.

Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275, 284

(Va. 2011).




                                                6
                                           C.

     Gray next filed a federal habeas petition, arguing with

respect    to   Claim     III 2    that   the     Supreme    Court      of   Virginia’s

dismissal       of     the      claim     was     based     on     an    unreasonable

determination        of   the     facts   under    AEDPA’s       § 2254(d)(2).      The

district court determined that, although the state court made

credibility determinations and weighed the parties’ affidavits

without an evidentiary hearing, “Section 2254(d) affords wide

latitude to state courts in fashioning state habeas procedures

and . . . the procedures adopted by the state court were not,

within    the   context      of    this   case,    inherently       unreasonable    or

unreliable.”         Gray v. Pearson, No. 1:11-cv-630, 2012 WL 1481506,

at *12 (E.D. Va. Apr. 27, 2012).                  Considering “the totality of

the state court record,” the district court concluded that “the


     2 Gray’s original habeas petition includes ten claims. The
first   alleges  that   prosecutors   (a)  failed   to  disclose
exculpatory evidence regarding Dandridge’s culpability and (b)
made false statements about Gray’s confession.     The remaining
claims allege ineffective assistance for failure to: present
evidence of relative culpability between Gray and Dandridge
(Claim II); make a reasonable investigation of Gray’s statements
to police (Claim III); protect Gray’s double jeopardy right
(Claim IV); protect Gray’s right to plead guilty and have
sentencing factors determined in a constitutional manner (Claim
V); object to the prosecutor’s comment on Gray’s failure to
testify (Claim VI); ensure jurors were properly instructed
(Claim VII); move for a mistrial based on juror misconduct and
object to Gray’s exclusion from a hearing on the issue (Claim
VIII); and present sufficient mitigating evidence at sentencing
(Claim IX). Claim X alleges ineffective assistance based on the
cumulative effect of Claims II-IX.


                                            7
state    court’s     determinations      of     fact   were    not    unreasonable.”

Id.

                                          D.

       After Gray filed his federal habeas petition, but before

the district court had ruled on it, the Supreme Court decided

Martinez v. Ryan.           Martinez provides a narrow exception to the

general rule, stated in Coleman v. Thompson, 501 U.S. 722, 752–

53 (1991), that errors committed by state habeas counsel do not

provide cause to excuse a procedural default.                   The Supreme Court

summarized its holding as follows:

       Where,   under   state  law,   claims   of  ineffective
       assistance of trial counsel must be raised in an
       initial-review collateral proceeding, a procedural
       default will not bar a federal habeas court from
       hearing a substantial claim of ineffective assistance
       at   trial   if,   in  the   initial-review  collateral
       proceeding, there was no counsel or counsel in that
       proceeding was ineffective.

Martinez, 132 S. Ct. at 1320.

       Three aspects of the decision are notable here.                           First,

Martinez    permits     a    petitioner    to    excuse      certain    procedurally

defaulted      ineffective-assistance-of-trial-counsel                 claims.       But

if    claims   are   not     procedurally       defaulted—that        is,   they   were

properly presented to the state court—then Martinez does not

apply.     See Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir.

2014) (holding that “Martinez does not apply to claims that were

fully    adjudicated        on   the   merits    by    the    state    habeas      court


                                          8
because     those     claims     are,      by        definition,         not     procedurally

defaulted”).        Second, because a petitioner raising a Martinez

claim never presented the claim in state court, a federal court

considers     it    de   novo,     rather       than       under   AEDPA’s        deferential

standard of review.            See § 2254(d) (providing review standards

for “any claim that was adjudicated on the merits in State court

proceedings”).           Finally, a Martinez claim requires a showing

that state habeas counsel was ineffective.

      Because Gray’s state habeas attorneys also represented him

in   the    federal       proceedings,          a     conflict      of     interest     arose

regarding     counsel’s      ability       to        identify      and    argue     potential

Martinez claims.          Gray therefore moved for appointment of new

counsel.     The district court denied the motion.

      The district court also denied Gray’s habeas petition in

full.      Gray, 2012 WL 1481506, at *20.                    The district court then

certified two questions to this court: first, whether the state

habeas     court’s       dismissal        of       Claim     III    was        based   on   an

unreasonable       determination      of        the    facts;      and    second,      whether

Martinez     entitled       Gray     to        the    appointment          of    independent

counsel.     We reserved the first question and answered the second

in   the   affirmative,      directing          the     district         court    to   appoint

independent counsel to explore the existence of Martinez claims.

Gray v. Pearson, 526 F. App’x 331, 335 (4th Cir. 2013).



                                               9
       After the district court appointed new counsel and granted

Gray’s motions to appoint new experts and an investigator, Gray

filed an amended petition.                 He presented four claims, all based

on Martinez, only one of which, Claim XI, is relevant here. 3                                   In

this       claim,     Gray    asserts        that        his     trial      attorneys         were

ineffective in failing to present evidence of Gray’s voluntary

intoxication at the time of the crimes and that his state habeas

attorneys      were    ineffective         for     not    raising       the    claim     in    the

Supreme Court of Virginia.

       The    district       court        treated      Claim      XI     as    two     distinct

ineffective-assistance              claims,      one     regarding       the    guilt    phase,

and one regarding the penalty phase.                           Gray v. Davis, No. 1:11-

cv-630      (AJT/TCB),       2014    WL    2002132,       at     *4    (E.D.    Va.    May     13,

2014).        As     to   the       guilt-phase          claim,       the     district    court

dismissed it for failing to meet certain requirements stated in

Martinez. 4         As to the penalty-phase claim, the district court


       3
       The amended petition incorporates the original petition by
reference, accepting that the original ten claims had already
been dismissed by the district court.     Accordingly, the claim
numbering in the amended petition begins at XI. The other three
Martinez claims, which are not before us, allege that Gray’s
constitutional rights were violated by a juror’s consideration
of extrinsic evidence (Claim XII), that trial counsel failed to
conduct an adequate mitigation investigation (Claim XIII), and
that the cumulative errors of trial counsel constituted
ineffective assistance (Claim XIV).

       4
       The district court found two faults with the claim under
Martinez. First, Gray could not make a substantial showing that
(Continued)
                                              10
found that Gray’s state habeas counsel had raised it in the

state court.        Id. at *11.       As a result, the claim was not

procedurally defaulted, and Martinez did not apply.                        See id.

And   even   if    the     penalty-phase    claim    had    been       procedurally

defaulted, the district court held, it likewise failed to meet

the other Martinez requirements.           Id.

      The district court denied the amended petition, but issued

a certificate of appealability with respect to the penalty-phase

claim only. 5     This appeal followed.



                                      II.

      Two issues are before us on appeal.                       The first is the

reserved claim from Gray’s prior appeal to this court: whether

the   Supreme      Court    of   Virginia’s       dismissal       of   Claim     III—

ineffective       assistance     of   trial       counsel        in    failing     to

investigate       Gray’s    confession—was       “based    on    an    unreasonable



trial counsel performed deficiently, or, assuming they had, that
Gray was prejudiced as a result. Gray, 2014 WL 2002132, at *5-
13. Second, Gray failed to make a substantial showing that his
state habeas counsel were ineffective by not raising the trial-
counsel claim.   Id. at *13-14.   Assuming without deciding that
state habeas counsel’s performance was deficient, the district
court held that Gray could not show prejudice. Id.
      5 Although Gray moved to expand the certificate of
appealability to include a juror misconduct claim and a separate
ineffective-assistance claim, he did not move to include the
guilt-phase claim. We denied the motion.



                                      11
determination of the facts” under AEDPA’s § 2254(d)(2) because

the     court     resolved          disputed            issues     of     fact       without      an

evidentiary       hearing.              The       second    issue        is    whether,       under

Martinez,       Gray    may    belatedly           raise    in    the    district         court   an

ineffective-assistance-of-trial-counsel claim—namely, that trial

counsel failed during the penalty phase to present evidence of

Gray’s voluntary intoxication at the time of the crimes.                                          We

consider    each       issue       in   turn,      reviewing       de    novo       the    district

court’s    denial       of     a    petition        for     a    writ    of    habeas       corpus.

Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009).

                                                   A.

      We first consider Gray’s argument under § 2254(d)(2) that

the     Supreme      Court         of    Virginia’s         decision          to    deny     Gray’s

ineffective-assistance-of-trial-counsel                            claim           warrants       no

deference from the federal courts.                         According to Gray, the state

court    made     an    “unreasonable              determination         of    the     facts”     by

ignoring his evidence and by resolving factual disputes without

an evidentiary hearing.                 We find neither contention persuasive.

      AEDPA      permits       a    federal        habeas        court    to       review    claims

decided    on     the   merits          by    state      courts    when       the    state    court

adjudication         “resulted          in    a    decision       that    was       based    on   an

unreasonable determination of the facts in light of the evidence

presented       in      the        State      court        proceeding.”               28     U.S.C.

§ 2254(d)(2).          An unreasonable determination of the facts is not

                                                   12
merely an incorrect determination, but one “sufficiently against

the weight of the evidence that it is objectively unreasonable.”

Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010).

                                               1.

     Gray first argues that the Supreme Court of Virginia’s fact

determination            was    unreasonable      because     the    court       ignored   his

evidence.           He    is    concerned     primarily       with    the      affidavit   of

defense investigator Melvin Knight, who interviewed Gray and who

also interviewed some of the police officers involved in Gray’s

arrest    and       interrogation.           In     the    affidavit,      Knight      relates

statements that Gray made about the circumstances surrounding

his confession, including (1) that Gray had asked police for an

attorney, (2) that Gray had told police he was fuzzy on the

details of the crimes because of drug use at the time of the

crimes, and (3) that the police had “fed” him details of the

crimes from his accomplice Dandridge.                       The record, however, does

not support Gray’s assertion that the Supreme Court of Virginia

ignored his evidence.

     When       a    state        court     apparently       ignores       a    petitioner’s

properly presented evidence, its fact-finding process may lead

to   unreasonable              determinations       of     fact    under       § 2254(d)(2).

Moore    v.   Hardee,          723   F.3d   488,     499    (4th    Cir.       2013)   (citing

Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)); see also

Miller-El     v.      Cockrell,       537    U.S.    322,    346     (2003)      (expressing

                                               13
concern    that    a   state    court    “had     before       it,    and       apparently

ignored”      petitioner’s     probative      evidence     of     a    constitutional

violation).       In Taylor, for example, the Ninth Circuit found

factual determinations unreasonable when the state court ignored

a   “highly     probative”     affidavit      corroborating          the   petitioner’s

claim    that    his   confession    had     been    coerced     and       he    had   been

denied an attorney.          366 F.3d at 1006 (noting that “[a] rational

fact-finder might discount [the affidavit] or, conceivably, find

it incredible, but no rational fact-finder would simply ignore

it”).

      But as we said in Moore, a state court need not refer

specifically to each piece of a petitioner’s evidence to avoid

the accusation that it unreasonably ignored the evidence.                              See

723 F.3d at 499; cf. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.

2000) (en banc) (holding that “we may not ‘presume that [the]

summary order is indicative of a cursory or haphazard review of

[the]    petitioner’s     claims’”      (alteration       in    original)         (quoting

Wright    v.    Angelone,      151   F.3d     151,   157       (4th    Cir.       1998))).

Rather,    to    determine     whether      the   state    court       considered       or

ignored particular evidence, the federal court must review “the

entirety of the [state] court’s order.”               Moore, 723 F.3d at 499.

      In Moore, the petitioner argued before the state court that

his trial counsel was ineffective in failing to call an expert

on the inaccuracy of eyewitness memory.                Id. at 492.              In support

                                         14
of the claim, the petitioner filed an affidavit from such an

expert    explaining        what    evidence       trial     counsel    could    have

presented.      Id. at 492–93.            The state court denied the claim,

finding      that   trial    counsel       had    “fully     presented”     evidence

relating to petitioner’s eyewitness identification.                     Id. at 493.

The state court listed each piece of the petitioner’s evidence

except the expert’s affidavit and then said that the petitioner

did “not suggest that there is any more evidence regarding the

identification.”      Id.     The district court, taking this assertion

to mean that the state court had ignored the affidavit, found

the determination of fact unreasonable.                Id. at 499.

     We reversed, noting that the state court, immediately after

concluding     that   the     petitioner         had   not    offered     “any   more

evidence,” went on to say that “there was no showing to justify

or require an expert on identification.”                     Id.   This statement,

we   said,    demonstrated         that   the    state     court   considered     the

petitioner’s submission and reached a conclusion as to which

“‘[fair-minded]       jurists        could       disagree.’”        Id.     (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).

     As in Moore, the record here demonstrates that the Supreme

Court of Virginia did not ignore Gray’s evidence.                       Rather, the

court simply determined that Gray’s evidence was not credible.

We base our conclusion in part on the court’s denial of a motion

to strike the Knight affidavit.                 The warden moved to strike the

                                           15
affidavit    as     inadmissible       hearsay.              The    parties       ultimately

traded five briefs on the issue, and, in its decision denying

Gray’s petition, the Supreme Court of Virginia denied the motion

to strike.     Gray, 707 S.E.2d at 290.                  The denial of the motion

after     substantial      briefing        indicates         that     the     state    court

considered the affidavit.

     Our    conclusion        is   strengthened         by    the    minimal       probative

value of the Knight affidavit.                    Whereas in Taylor the state

court’s     failure      to    discuss      petitioner’s            “highly       probative”

evidence was inexplicable, here the explanation is simple: the

Supreme Court of Virginia could reasonably have determined that

the Knight affidavit did not warrant discussion.                                 See Taylor,

366 F.3d at 1001 (“To fatally undermine the state fact-finding

process,    and     render     the    resulting         finding      unreasonable,       the

overlooked     or   ignored        evidence      must    be    highly       probative    and

central to petitioner’s claim.”).                   Because fair-minded jurists

could disagree on the correctness of this conclusion, Gray is

not entitled to relief on this aspect of his claim.                               See Moore,

723 F.3d at 499.

                                            2.

     Next,     Gray      argues     that   the    Supreme          Court    of    Virginia’s

determinations of fact were necessarily unreasonable because the

court failed to hold an evidentiary hearing.                          Gray stops short

of   arguing      that    evidentiary         hearings        are     always       required,

                                            16
claiming    instead   that   one    was   necessary       here    because    of   the

strength of his pleadings and supporting evidence.                   The district

court held that the lack of a hearing did not itself render the

determination of facts unreasonable, and its own review of the

record     likewise   confirmed      that      the    determination         was   not

unreasonable.     Gray, 2012 WL 1481506, at *12.

      A state habeas court need not hold an evidentiary hearing

in every case to make reasonable fact determinations.                   Strong v.

Johnson, 495 F.3d 134, 139 (4th Cir. 2007).                       In Strong, the

petitioner alleged ineffective assistance of counsel, claiming

he had asked his attorney to file an appeal, but the attorney

failed to do so despite assurances he would.                     Id. at 140.      The

state filed a motion to dismiss, attaching the attorney’s sworn

letter attesting he had met with the petitioner twice to discuss

the appeal and the petitioner had ultimately agreed no appeal

would be filed.       Id.    Without holding an evidentiary hearing,

the   state   court   granted      the    motion     to   dismiss,    essentially

adopting    the   attorney’s    version       of   events   and     rejecting     the

petitioner’s:

      The record, including the affidavit of counsel,
      demonstrates   that petitioner    initially  instructed
      counsel to appeal his convictions and counsel advised
      petitioner that he had no grounds upon which to
      appeal.   Petitioner told counsel he understood and
      agreed that an appeal would serve no purpose. . . .
      Petitioner has failed to establish that he objectively
      demonstrated his intent to appeal his conviction.


                                         17
Id. at 137–38.

       We held that the state court’s determination of disputed

facts without a hearing was not unreasonable.                         Strong, 495 F.3d

at 140.       “[T]here is no prohibition,” we explained, “against a

court       making      credibility      determinations         based    on       competing

affidavits         in    certain      circumstances,”          including      “when      one

affidavit is cryptic or conclusory with respect to a contested

issue   of     fact      and   the    other     affidavit      sets   out     a   detailed

account of events.”            Id. at 139.

       As     we     explain    below,        because    Gray’s       allegations        are

similarly conclusory and the record presents “a detailed account

of events” contradicting the allegations, the Supreme Court of

Virginia       permissibly           resolved      disputed      facts      without       an

evidentiary hearing.

                                              a.

       In    support      of    his    ineffective-assistance            claim      in   the

Supreme Court of Virginia, Gray presented evidence in the form

of (1) the Knight affidavit, (2) an account of Gray’s confession

given by Detective Peterman during a hearing held more than a

year    after      the    trial,      and   (3)    his   own    allegations         in   the




                                              18
petition. 6   The warden supported its motion to dismiss with an

affidavit from Gray’s trial attorneys.

     As to his allegation that he requested an attorney and a

phone call, Gray’s sole evidence is Knight’s retelling of Gray’s

own account: “Mr. Gray told me that during his January 7, 2006,

interrogation by police in Philadelphia, he repeatedly asked for

an attorney and a phone call.”       J.A. 382; see id. at 118.         This

bare, self-serving allegation, however, is strongly contradicted

by the record.

     Although Detective Peterman was not specifically asked at

trial whether Gray requested an attorney or a phone call, his

detailed and coherent account of the confession rebuts Gray’s

allegation.      Peterman    described   an     interaction   marked    by

cooperation rather than resistance.          See id. at 19-21 (Peterman

testifying that he told Gray he knew “the truth according to Ray

Dandridge,” and Gray responded, “Can I tell you my side of the

story?”).     Moreover,     he   described    Gray   as   initiating   the

discussion.

     We also know from Gray’s signed waiver of counsel that, at

least in the moments before taking Gray’s confession, Peterman

     6 While Gray also attempted to rely on the affidavit of
defense mitigation investigator Judith McClendon, the Supreme
Court of Virginia struck that affidavit on the warden’s motion,
Gray, 707 S.E.2d at 290, and Gray offers no challenge to that
decision, see Appellant’s Br. 28-29.



                                    19
informed Gray of his right to counsel.                              See J.A. 38–39 (Gray

answering “no” to the question, “Do you want to talk to a lawyer

at   any     time    or     have     a    lawyer       with    you    while       we   ask   you

questions?”).         If Peterman’s story were false, one would expect

Gray   to    provide      a   competing          account      or,    at    the    very   least,

explain his apparently valid waiver of counsel.                                  But Gray has

failed to do either.

       In addition to the evidence at trial, Gray’s attorneys say

that they investigated the confession.                        According to their joint

affidavit,     they       “travelled       to     Philadelphia,           Pennsylvania,      and

spoke directly to all the officers that had dealt with Gray,

including everyone in the ‘chain of custody’ of his arrest.”

Id. at 700.          Although the attorneys “were actively looking for

suppression issues,” they “could not find grounds for even a

colorable claim to suppress any of the statements Gray made to

law enforcement.”             Id. at 701.             Gray’s attorneys do not state

specifically whether they investigated Gray’s allegation that he

requested an attorney, or even whether they knew of it.                                      But

they    do    indicate        that       their        interviews     with        the   officers

involved in Gray’s confession did not uncover evidence that Gray

was denied counsel he had requested.

       Based on our review of the record, we cannot say that the

Supreme      Court     of     Virginia       was        objectively        unreasonable       in

discounting Gray’s allegation that he was denied counsel and a

                                                 20
phone call.   The assertion is bare and belated, and the record

evidence contradicting it is detailed.

      We reach the same conclusion as to Gray’s allegation that

he could not remember the details of the crimes and was fed his

confession by police.     In his state petition, Gray asserts “that

he told police that he didn’t remember many details because he

was high on a combination of marijuana, ecstasy and PCP when the

crimes were committed.”       Id. at 118.   He then describes how the

police fed him his confession:

      [D]etectives went back and forth between his room and
      the room in which they were interrogating Dandridge
      and showed him Dandridge’s signed statement with full
      disclosure and complete details about each of the
      murder scenes, read him the statement, and, although
      Gray was not clear on the details, used Dandridge’s
      statement to fashion a statement purportedly from
      Gray.

Id.   Knight independently confirmed with Peterman that Gray had

told the detective “that his memory of the details of the crimes

was fuzzy.”   Id. at 384. 7

      Gray’s allegation of being fed details is hardly detailed,

and unanswered questions make it difficult to credit.           Which

details of Gray’s confession came from Dandridge?       Why did Gray

accept them when he could not remember what had happened?         And



      7Gray also relies on statements made by Detective Peterman
in a hearing on an unrelated matter, as discussed in detail
below.



                                   21
why, if he was simply accepting the confession as the police

provided it, did he bother to amend his statement, apparently to

remove evidence of premeditation?                See Suppl. J.A. 44 (“Q.            What

happened after you talked [the Harvey family] downstairs [i.e.,

into the basement]?           A.     We was playing like everything was

gonna be all right.        Everything was all right.”).

      As     further   support     for    his     allegation,       Gray   points       to

Detective     Peterman’s      testimony        given   more    than   a    year    after

Gray’s trial in a hearing on a separate criminal matter.                          There,

Peterman states        that   before      he    recorded      the   confession     as   a

formal question-and-answer dialogue, he first asked what Gray

knew about the crime.            Gray argues that this statement proves

that Peterman had the opportunity during preliminary discussions

with Gray to learn of the gaps in Gray’s memory and fill them in

with details from Dandridge’s account.                    Peterman, however, did

not   give    the   slightest      hint    of    having    coached     Gray   on     his

answers.      See J.A. 396 (“[Gray’s attorney to Peterman]: And is

it fair to say that the way you would approach it is you would

talk to him about a specific incident before committing anything

to writing?      [Peterman]: Would I give him information about it?

I would tell Rick what I wanted to know about the incident that

I was questioning him about, and if he had any information about

it that he wanted to share with me.”).



                                          22
      Gray    also    contends    that    this      new     testimony    proves       that

Peterman lied at trial about the confession.                      At trial, Peterman

described in general terms sitting down with Gray and obtaining

Gray’s waivers of his Fifth and Sixth Amendment rights.                               The

prosecutor     then    asked     Peterman      a    series    of    questions        about

Gray’s demeanor during the confession and established that the

confession     had    been     recorded      only    in     writing.         Next,    the

prosecutor asked, “Detective Peterman, is there any aspect of

your interview with Mr. Gray that we haven’t gone over that

leads up to the actual substance of the interview?”                          Id. at 23.

“No,” Peterman responded.            Id. at 24.       The prosecutor continued:

“Now, am I correct that you asked him a series of questions and

he provided a series of answers to you?”                    Id.    Peterman replied,

“That’s correct.”        Id.      The prosecutor then had Peterman read

the recorded questions and answers to the jury.

      Gray posits that this exchange shows Peterman attempted to

conceal   off-the-record        discussions         with    Gray.       We   find     this

interpretation unconvincing.              Peterman never denied having an

informal preliminary discussion, nor did his responses at trial

foreclose the possibility.

      Critically, when Peterman was asked at trial whether he “at

any   point    assist[ed]      Mr.    Gray     in    his    recollection       of    what

happened,”     including        “tell[ing]          [him]     anything       that     Mr.

Dandridge had told” Peterman, the detective replied, “No.”                             Id.

                                          23
at 30.      In Peterman’s account, Gray prompted the conversation

about the crimes after learning that Peterman had already spoken

with Dandridge.           Having acknowledged his constitutional rights,

including     his     right    to      counsel,    Gray    answered         Peterman’s

questions    about    the     crimes.      Gray    reviewed     the       statement   as

Peterman had recorded it and certified that it was correct and

accurate.     And according to the Knight affidavit, Peterman gave

a similar account of the confession prior to trial.                         See id. at

384 (noting that Peterman “denied that a ‘dry run’ interview

preceded the written verbatim statement”).

     Trial    counsel’s        joint    affidavit     corroborates          Peterman’s

account of the confession:

     There was no evidence that the police fed Gray any
     facts   from    Dandridge’s   statements   when  they
     interviewed Gray.   The information we obtained about
     the interview procedures all was consistent with the
     trial testimony: Gray asked, during a bathroom break,
     if the police had spoken to Dandridge; the detective
     said yes; Gray asked what Dandridge said; the answer
     was “everything” or some similar general comment; and
     Gray then proceeded to give his statement.

Id. at 701.

     Trial counsel also stated that “Gray did not tell us that

he had been fed details of the crimes.”                   Id.    According to the

Knight affidavit, however, Gray told Knight precisely that.                           The

Supreme   Court      of    Virginia,     without     referring       to    the   Knight

affidavit,     found        that    “[t]he     affidavit        of    counsel . . .

demonstrates        that     petitioner      never    informed        counsel      that

                                          24
Detective Peterman had ‘fed’ him the details of the crimes or of

Dandridge’s statements to police.”                             Gray, 707 S.E.2d at 284.

While we find this troubling to the extent it suggests the state

court      preferred       the       attorneys’           affidavit       to        Knight’s,    we

nevertheless       cannot       say        that    the     state      court’s       decision     was

based      on     “an     unreasonable             determination             of     the     facts.”

§ 2254(d)(2).             Even        if     the        attorneys       knew        about    Gray’s

allegations,        the    evidence           we        have    described         supported      the

Supreme         Court     of         Virginia’s           determination             that      Gray’s

allegations were not credible.

       Finally, Gray’s trial attorneys contradict his claim that

drug    use     clouded        his    memory        of        the    crime:       “Gray     insisted

repeatedly that PCP could not be to blame.                              He insisted that he

knew what he was doing.”                     J.A. 706; see also id. 720 (doctor

conducting competency evaluation noting that Gray “insisted he

was never so intoxicated that he felt it destroyed his ability

to understand what was happening”); id. 726 (doctor conducting

evaluation of Gray’s mental condition at the time of the crime,

noting that Gray “denied that as a result of his drug use . . .

he   was    unaware       of    his     actions          at    the    time     of    the    present

offenses”).

       In the face of all this, we cannot say that the state

court’s decision to reject Gray’s ineffective-assistance claim



                                                   25
without         holding      a        hearing       resulted        in      unreasonable

determinations of fact.               See § 2254(d)(2).

                                              b.

       To persuade us otherwise, Gray cites a number of cases in

which the United States Supreme Court has required a state court

to hold an evidentiary hearing.                    But while these cases support

the general proposition that due process sometimes requires a

hearing, they do not establish that one was required here.

       Gray’s     reliance       on    Panetti     v.   Quarterman,       551   U.S.   930

(2007), is particularly misplaced.                       Whereas Panetti addresses

the unreasonable application of federal law under § 2254(d)(1),

Gray       is   fundamentally         attacking      the    way     the     state   court

determined facts, not the way it applied a particular Supreme

Court precedent. 8        In Panetti, the district court failed to hold

an     incompetency       hearing        as     required     under        Supreme   Court

precedent.       Id. at 948.           Unlike the petitioner in Panetti, Gray

has not identified a Supreme Court case that entitles him to a

hearing.         Strickland,      the     basis    for     Gray’s    claim,     certainly

provides no such entitlement.                 See 466 U.S. at 700 (“The state



       8Although Gray occasionally couches his arguments in terms
of   an    “unreasonable  application”   of  federal   law  under
§ 2254(d)(1), we find that his arguments are better addressed
under § 2254(d)(2).    See Winston, 592 F.3d at 553 (noting that
“§ 2254(d)(2) describes the standard to be applied to claims
challenging how the state courts determined the facts”).



                                              26
courts    properly      concluded     that      the    ineffectiveness           claim    was

meritless without holding an evidentiary hearing.”).

       Nor    was     Gray’s    claim     given       the    kind       of    short-shrift

treatment that the Supreme Court rejected in Pennsylvania ex

rel. Herman v. Claudy, 350 U.S. 116 (1956), and Palmer v. Ashe,

342 U.S. 134 (1951).            In Claudy, the petitioner alleged that his

confession      and    guilty     plea    had    been       coerced      by     threats    to

himself and his family, and that he was denied the benefit of

counsel.        350 U.S. at 117.          The state denied the allegations

and,    without       holding    a   hearing,         the   state       court    summarily

dismissed.          Id. at 117–18.         According to the Supreme Court,

summary dismissal of the petitioner’s claims “merely because the

allegations of his petition were contradicted by the prosecuting

officers” was unreasonable.              Id. at 123.         Here, by contrast, the

Supreme      Court    of   Virginia      had    not     only      the    officers’       word

against Gray’s, but also contradictory statements from Gray and

the affidavit of Gray’s trial attorneys.

       Similarly, in Palmer, the Court required a state court to

provide a hearing to determine whether the petitioner should

have     been       afforded      counsel       where        he     alleged        he     was

intellectually disabled and police had tricked him into pleading

guilty to armed robbery when he thought he was pleading to the

less serious crime of breaking and entering.                        342 U.S. at 136–

38.    A hearing was necessary because the “record does not even

                                           27
inferentially         deny     petitioner’s     charge     that     the     officers

deceived him, nor does the record show an understanding plea of

guilty from this petitioner, unless by a resort to speculation

and surmise.”         Id. at 137.      Here, again, Gray’s case is quite

different—the record provides strong evidence that Gray’s claims

are not credible. 9

      Finally, Gray directs our attention to Brumfield v. Cain,

135     S.    Ct.   2269     (2015).    There,       the   state    court     denied

petitioner an evidentiary hearing in which to prove that he was

intellectually disabled under Atkins v. Virginia, 536 U.S. 304

(2002).       Brumfield, 135 S. Ct. at 2274–75.              In finding some of

the state court’s fact determinations unreasonable, the Supreme

Court took into account what evidentiary standard would entitle

the petitioner to a hearing: “Brumfield needed only to raise a

‘reasonable doubt’ as to his intellectual disability.”                       Id. at

2281.        Because this standard imposed a low burden of proof on

Brumfield,      the    Court    concluded     that   he    met    the   “reasonable

doubt” standard even though “other evidence in the record before




      9Nor is McNeal v. Culver, 365 U.S. 109 (1961), helpful to
Gray. As in Claudy and Palmer, the petitioner’s allegations of
a constitutional violation in McNeal were not significantly
called into question by the record. Id. at 117 (“On the present
record it is not possible to determine [the allegations’]
truth.”).



                                        28
the   state     court    may   have      cut    against    Brumfield’s       claim    of

intellectual disability.”           Id. at 2280.

        Gray contends that, as in Brumfield, the Supreme Court of

Virginia’s      findings       of      fact     are    unreasonable      under       the

applicable evidentiary standard: “[T]he state court in Gray’s

case failed to recognize that Gray’s evidence, viewed in the

light most favorable to him, should defeat the Warden’s motion

to dismiss.”       Appellant’s Letter Br. 2.                 To the extent Gray

implies that the state court was not permitted to discount his

evidence where it was contradicted by the record, his argument

is in tension with Strong.               495 F.3d at 139 (noting “there is no

prohibition     against    a     court     making     credibility     determinations

based on competing affidavits in certain circumstances”).                            And

nothing in Brumfield casts doubt on our precedent.

        In sum, because Gray’s claim of ineffective assistance of

counsel    is    based    on     his     own    “conclusory”       allegations,      and

because the record provides sufficient evidence to contradict

them,     we    hold     that,      as     in    Strong,     the     state    court’s

determination of the facts was not objectively unreasonable even

without an evidentiary hearing.

                                           B.

        We next consider Gray’s contention that he is entitled to

raise in the district court a claim of ineffective assistance of

trial counsel under Martinez v. Ryan.                      As we have explained,

                                           29
Martinez permits a petitioner, under certain circumstances, to

excuse a procedural default and bring a claim in federal court

that was not raised in state court.                    Such a claim, never having

been heard by a state court, is reviewed de novo.                           As a result,

the usual roles of the habeas petitioner and the government are

reversed here.        Gray, seeking de novo review, argues that his

ineffective-assistance-of-trial-counsel                     claim    was    procedurally

defaulted—an outcome that would normally bar the claim.                                 The

warden, seeking to deny Gray the benefit of Martinez, argues

that Gray properly presented the claim to the Supreme Court of

Virginia.

      The district court sided with the warden, holding that the

trial-counsel claim was not procedurally defaulted and therefore

Martinez did not apply.             See Gray, 2014 WL 2002132, at *11.                   The

district     court    compared      the    “new”       claim      with   claims     already

presented     to    the     Supreme      Court    of   Virginia,         concluding     that

“Gray’s    [new]     Claim    XI    differs       from      his    previously     asserted

Claim   IX    only    in    that    it    is     framed     exclusively       within    the

context of a voluntary intoxication defense and the effect such

a presentation would have likely had on a jury who found a death

sentence.”     Id.

      As we explain below, we agree with the district court that

the   claim    was    properly        presented        to    the    Supreme     Court    of

Virginia      and    thus     not     procedurally          defaulted.        The     claim

                                            30
therefore    cannot     be   reviewed     de    novo    under    Martinez.                  As   a

result,   we    do     not   consider     the       district    court’s             alternate

holdings that, under Martinez, the claim is not “substantial”

and Gray’s state habeas counsel was not ineffective in failing

to raise it.     See id. at *5–14.

                                         1.

     Before     seeking      federal      habeas       review        of        a    claim,       a

petitioner ordinarily must raise that claim in the state court,

complying with state procedural rules and exhausting available

state   remedies.         See   Coleman,        501    U.S.     at    750.            When       a

petitioner fails to comply with state procedural rules and a

state court dismisses a claim on those grounds, the claim is

procedurally      defaulted        and    federal           review        is        generally

foreclosed.     Id. at 729.         To overcome a procedural default, a

petitioner     must     demonstrate      either       (1)     cause       and       resulting

prejudice, or (2) that the failure to review the claim “will

result in a fundamental miscarriage of justice.”                      Id. at 750.

     Likewise, when a habeas petitioner fails to exhaust state

remedies for a claim, federal review is not available until the

petitioner     either    returns    to    state       court    with        the       claim       or

demonstrates that such an attempt would be futile, in which case

the claim is treated as procedurally defaulted.                            See Breard v.

Pruett, 134 F.3d 615, 619 (4th Cir. 1998).                    The purpose of these

requirements,     in    keeping    with       the     principles          of       comity    and

                                         31
federalism,         is     to    give      the    state    courts      an   opportunity         to

consider      a     defendant’s         claims      and    to    correct       constitutional

violations.          See Rose v. Lundy, 455 U.S. 509, 518–19 (1982).                            To

exhaust a claim, the petitioner must present the state court

with     “both       the     operative           facts    and    the   controlling           legal

principles.”         Winston, 592 F.3d at 549.

       But     if    a     claim      is     exhausted      in    state     court       and    not

procedurally defaulted, then it was adjudicated on the merits

and is subject to review under the deferential standards set

forth in AEDPA’s § 2254(d).                  See Richter, 562 U.S. at 99.

                                                   2.

       Gray       cannot        raise      his     Martinez      claim      unless      it     was

procedurally defaulted, and that question in turn depends on

whether       Gray       exhausted         the    claim    in    the   Supreme         Court    of

Virginia.         Unlike in Martinez, where the state court barred the

petitioner’s claim on procedural grounds, here Gray argues that

he is presenting “a new, unexhausted claim” that would be futile

to take back to the Virginia courts.                       Appellant’s Suppl. Br. 43.

       We     hold       that    Gray       properly      exhausted      his      ineffective-

assistance-of-trial-counsel                      claim      in     his       state        habeas

proceedings.          Most notably, in Claim IX of his state petition,

titled      “Gray’s        Trial   Counsel         Was    Ineffective       At    Sentencing,”

Gray     argued       that      Dr.     Cunningham,         a    clinical        and   forensic

psychologist, “could have provided expert testimony on Gray’s

                                                   32
use of PCP and other drugs at the time of the offense to show

how studies link such use in individuals such as Gray to violent

behavior and moral responsibility.”                           J.A. 153 (emphasis added)

(citation    omitted).               This       statement      made      explicit        what   was

implicit elsewhere in the state habeas petition: Gray believed

that his trial counsel, during the sentencing proceeding, failed

to   put   before          the     jury    adequate       evidence        of   his    voluntary

intoxication          at    the     time    of     the    crimes.          See     id.     at   146

(faulting trial counsel for failing to provide “expert testimony

to explain what precipitated the drug use and the impact of the

drug use on the defendant’s moral culpability and behavior”);

id. at     146–47          (“The    presentation         of    drug      use   without     expert

testimony was ineffective assistance.”); id. at 147–48 (arguing

that Dr. Lisak could have explained to the jury that “drugs

became     the    central          focus    of    [Gray’s]       life      and     the     primary

motivator        of        much     of      his        behavior,      including          criminal

behavior”).

      We    conclude          that       Gray     exhausted        the     claim     because     a

“reasonable       fact-finder . . .                could       have       found      the    facts

necessary to support the petitioner’s claim from the evidence

presented to the state courts.”                        Winston, 592 F.3d at 551.                The

claim was therefore not procedurally defaulted.




                                                  33
                                              3.

       Gray insists that the claim is not exhausted because his

newly proffered evidence in the district court “fundamentally

alters the nature of any claim that may have been before the

state court.”        Suppl. Reply Br. at 2.                But a properly exhausted

state claim is not necessarily altered by the submission of new

evidence on federal habeas review.                       Winston, 592 F.3d at 549.

Gray    relies      on   Wise    v.     Warden,     in    which     we   held    that    the

petitioner’s        introduction         of   previously      undisclosed        “critical

evidence”      in   his   federal        habeas     petition      rendered      the    claim

unexhausted.        839 F.2d 1030, 1034 (4th Cir. 1988).                       However, as

we later explained in Winston, Wise stands for the proposition

that a petitioner may not support a claim in state court with

“mere    conjecture”           and     subsequently        provide       the     necessary

evidentiary      support        for    the    claim   on     federal     habeas    review.

Winston, 592 F.3d at 551 (explaining that Wise “distinguish[ed]

a claim without evidentiary support from one with evidentiary

support”).

       Here,     Gray’s    new        evidence,     including     affidavits          from   a

clinical       psychologist       and    a    neuropharmacologist,         has     perhaps

strengthened the claim, but it has not “fundamentally altered”

it.      The    heart     of     the    claim      remains    the    same:      his    trial

attorneys should have done more to show how Gray’s intoxication

at the time of the crimes lessened his culpability.                              Moreover,

                                              34
while     Gray’s    new    expert   affidavits      provide    a    great     deal    of

information        about    the     cumulative      effects        of    PCP,       their

conclusions        necessarily      remain    speculative      without        specific

evidence of how intoxicated Gray was at the time of the crimes.

See, e.g., Suppl. J.A. 244 (“Had I been able to test Mr. Gray

close to the time of the crime, the results would likely have

shown very clear impairment.”); id. at 251 (“Mr. Gray’s memory

was inadequate for me to determine with precision his state of

mind and symptoms during the commission of these crimes.                             The

amnesia itself is consistent with his report of PCP use.”); id.

at 252 (“It is abundantly clear that around the time of the

crimes . . . he was using [PCP] . . . along with other drugs,

including marijuana and alcohol.”).                 So while the addition of

the expert affidavits certainly places greater emphasis on the

issue     of   Gray’s      intoxication,      the    new      evidence        has    not

“fundamentally altered” the claim.

     In     sum,    because   Gray    exhausted      his   claim        in   the    state

court, it was not procedurally defaulted.                     As a result, the

district court properly dismissed Gray’s Martinez claim. 10




     10Because we find the Martinez claim may not be reviewed de
novo in the district court, we do not address Gray’s argument
that the district court was required to hold an evidentiary
hearing on it.



                                         35
                                    III.

     For   the   reasons   given,   we     affirm   the   district   court’s

dismissal of Gray’s petition.

                                                                     AFFIRMED




                                     36
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:

       I agree with my friends in the majority that Ricky Jovan

Gray      exhausted        his    claim          that      trial         counsel        were

constitutionally       ineffective      in       failing     to    present       evidence

during the penalty phase of his trial that he was voluntarily

intoxicated during the commission of the crimes.                           Furthermore,

because    a     “reasonable     fact-finder . . . could            have        found    the

facts    necessary    to    support    [Gray’s]         claim     from    the     evidence

presented to the state court[],” Winston v. Kelly, 592 F.3d 535,

551 (4th Cir. 2010), I agree with the majority that the district

court properly dismissed Gray’s Martinez claim.                      But I disagree,

respectfully, with the majority’s determination that the Supreme

Court of Virginia’s resolution of disputed issues of fact, based

on     conflicting    and    partially          unaddressed       sworn        affidavits,

without     an     evidentiary      hearing,         did     not     amount        to     an

unreasonable       determination      of    the      facts      under     28    U.S.C.     §

2254(d)(2).       I therefore concur in part and dissent in part.

       In his habeas petition to the Supreme Court of Virginia,

Gray    presented     several     claims        of   ineffective         assistance       of

counsel.       He grounded one such claim in his trial counsel’s

alleged failure to undertake a reasonable investigation into the

circumstances surrounding his confession.                       Gray alleged that,

during the course of his January 7, 2006 police interrogation,


                                           37
he had repeatedly requested an attorney and a phone call, but

the police denied both requests, continued the interrogation,

and   ultimately        obtained    his    written       confession.             Gray     also

asserted that he had told the police that he could not remember

many details of the crimes because of his drug use during the

day in question.          Gray claimed that the police had responded by

showing    him    the     statement       of    one     of   his    accomplices,           Ray

Dandridge, and by helping Gray fashion his own confession in

reliance     on    many     of     the    details       included         in     Dandridge’s

statement.

      Importantly, Gray alleged in his habeas petition that he

had   expressly         informed    his    trial        counsel      of       the   details

surrounding his interrogation and confession during a February

10,   2006      meeting.           Even    though        Gray      had     relayed        this

information, his trial counsel allegedly failed to conduct a

reasonable      investigation       into       these    matters.          Had    his    trial

counsel    adequately       investigated         the    circumstances           surrounding

Gray’s interrogation and confession, Gray asserted, his trial

counsel could have moved to suppress his confession or used the

results    of     the    investigation          to     impeach     the        testimony     of

Detective Howard Peterman during trial. *


      *Detective Peterman, of the Philadelphia Police Department,
testified at length at trial about the circumstances that led to
his questioning of Gray and the substance of Gray’s written
(Continued)
                                           38
      Gray supported his ineffective assistance of counsel claim

and his recollection of the January 7, 2006 police interrogation

and confession with the affidavit of Melvin B. Knight.                          Knight

was an investigator with the Office of the Capital Defender of

the Central Region of Virginia and was tasked with assisting

Gray’s trial counsel in preparing Gray’s defense.                         Prior to his

employment with the Office of the Capital Defender, Knight was a

law   enforcement      officer       with    the     City      of   Richmond    Police

Department for more than twenty-five years.

      In his affidavit, Knight recounted his February 10, 2006

interview with Gray and explained that Gray had expressly stated

that he had asked for an attorney and a phone call during his

questioning by police.           Knight also remembered Gray mentioning

that he could not remember many details of the crimes because he

had been high on a combination of marijuana, ecstasy, and PCP at

the   time    the    crimes    were    committed.           Gray    also    indicated,

according to Knight, that he had shared this information with

the police.         Gray then told Knight that, because he had been

unable   to    remember       many    details       of   the    crimes     during   his

interrogation,       the   police      had       assisted   Gray     in    crafting   a



confession.   Detective Peterman acknowledged that he informed
Gray that Dandridge was also in custody at police headquarters,
but Detective Peterman asserted that, after being made aware of
his rights, Gray volunteered to tell his side of the story and
did so without learning the details of Dandridge’s confession.


                                            39
written      statement        based      upon      the     statement        prepared     by

Dandridge.         In short, a plausibly credible witness offered sworn

facts more than trivially corroborative of Gray’s allegations

supporting a claim of ineffective assistance.

      As the majority opinion recounts, the Warden filed a motion

to dismiss Gray’s habeas petition, specifically arguing that an

evidentiary hearing was neither necessary nor permitted.                                In

support    of      his   motion    to    dismiss,        the   Warden      submitted   the

affidavit       of   Gray’s    trial      counsel,       Jeffrey      L.   Everhart    and

Theodore D. Bruns.            The attorneys asserted that Gray had never

told them that he had been fed details of the crime.                            Further,

the attorneys explained that they had interviewed each police

officer      who     questioned     Gray      on   January       7,   2006,    including

Detective Peterman, and each officer confirmed that Gray had

confessed       voluntarily       and    without     acquiring        information      from

Dandridge’s        confession.          The   attorneys        also   spoke    of   Gray’s

insistence that PCP was not to blame for his criminal actions

and   that    he     had   known    what      he   was    doing.        The   attorneys,

however,     did     not   directly      address     Gray’s      assertion      that    his

heavy drug use during the day in question left him unable to

remember many of the crimes’ details during his interrogation.

      On March 4, 2011, the Supreme Court of Virginia granted the

Warden’s motion to dismiss the relevant ineffective assistance

of counsel claim without affording Gray an evidentiary hearing.

                                              40
Gray v. Warden of Sussex I State Prison, 707 S.E.2d 275 (Va.

2011).      In ticking through Gray’s several habeas claims, the

Virginia Supreme Court explained that:

          The record, including the affidavit of counsel,
     demonstrates that petitioner insisted to counsel that
     he knew what he was doing when he committed the
     murders and that “PCP could not be to blame.”
     Furthermore, counsel spoke to every officer involved
     in petitioner’s arrest, including Detective Peterman,
     and determined that petitioner was not provided any
     details from Dandridge’s statement before or during
     his statement to the police. The affidavit of counsel
     also demonstrates that petitioner never informed
     counsel that Detective Peterman had “fed” him the
     details of the crimes or of Dandridge’s statements to
     police and that counsel looked for but could not find
     any evidence that would have supported a motion to
     suppress petitioner’s statements to police.

                                  . . .

          The record, including the trial transcript,
     petitioner’s   statement  to   the   police,   and the
     affidavit of counsel, demonstrates that petitioner
     understood his constitutional rights and voluntarily
     agreed to speak to the police about the murders and
     that counsel looked for but could not find any
     evidence that would have supported a motion to
     suppress petitioner’s statement to the police.

Id. at 283-84.

     After the Supreme Court of Virginia dismissed his habeas

petition,    Gray   sought   federal    habeas   relief.   He   based   his

federal challenge in part on the Supreme Court of Virginia’s

decision to dismiss his ineffective assistance of counsel claim

without affording him an evidentiary hearing and the opportunity

to develop a factual record.           Gray asserted that, because the


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Supreme      Court    of     Virginia       presumably          ignored        the     Knight

affidavit and resolved related factual disputes regarding his

ineffective assistance of counsel claim without the benefit of

an     evidentiary        hearing,        the     dismissal           amounted        to     an

unreasonable        determination      of       the    facts        under    28     U.S.C.    §

2254(d)(2) of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”).

       While it is a close question, I am constrained to agree

with     Gray.       As    the     district      court        aptly    observed,           trial

counsel’s     affidavit      and    Detective         Peterman’s       trial      testimony,

“differed     sharply”       from    Knight’s         affidavit        and    the     details

provided     in   Gray’s     verified      petition.           Gray    v.    Pearson,        No.

1:11-cv-630, 2012 WL 1481506, at *11 (E.D. Va. Apr. 27, 2012).

Despite this sharply conflicting evidence, the Supreme Court of

Virginia     effectively         adopted    the       affidavit        of    Gray’s        trial

counsel as fact absent any apparent analysis and without first

providing     Gray    “any    opportunity        .    .   .    to    develop      a   factual

record    through     discovery      with       compulsory      process        or     to    test

disputed issues of fact through the type of adversarial process

historically thought essential to the truth-finding function of

a court.”     Id.

       The   district      court    and    the    majority          correctly       recognize

that AEDPA’s § 2254(d) restriction creates a “highly deferential

standard      for     evaluating       state-court            rulings.”           Cullen     v.

                                            42
Pinholster,       563    U.S.     170,     131       S.     Ct.    1388,          1398     (2011).

However,    the    Supreme      Court     has       implied       that    a       state    court’s

fact-finding may be unreasonable when the court “had before it,

and   apparently        ignored,”      evidence           supporting          a    petitioner’s

claim.     See Miller-El v. Cockrell, 537 U.S. 322, 346 (2003).

While the majority is content to assume that the Supreme Court

of Virginia appropriately evaluated the Knight affidavit, which

directly    conflicted          with     the        trial    testimony            of     Detective

Peterman and the affidavit of Gray’s trial counsel, there is

nothing in the opinion to suggest that the Supreme Court of

Virginia considered Knight’s affidavit, much less engaged in the

difficult process of weighing the credibility of the affiants on

a conflicting record.

      The majority notes that it is troubled by the Supreme Court

of    Virginia’s        observable        preference          for        trial           counsel’s

affidavit as compared to the Court’s treatment of Knight’s and

suggests that, despite not mentioning the Knight affidavit, the

Supreme    Court    of    Virginia       assuredly          took    the       affidavit       into

consideration because it ruled on the Warden’s motion to strike

the affidavit.           The Court’s ruling on the Warden’s motion to

strike     the    affidavit,        however,          comes        in    a        singular    and

unsupported sentence at the conclusion of its opinion dismissing

Gray’s ineffective assistance of counsel claim, and the motion

to strike the Knight affidavit was incorporated into a broader

                                               43
motion      to     strike    that       concerned      several      of    the    affidavits

proffered by Gray.                While such context may be sufficient in

certain      circumstances         to    support       the   resolution         of    disputed

issues of fact by a state court, based on conflicting sworn

affidavits, without an evidentiary hearing, the facts presented

in   the    Knight    affidavit         stood    in    direct      conflict      with       those

offered by trial counsel and the affidavit was at the heart of

Gray’s ineffective assistance of counsel claim.                               Accordingly,

while I believe that “[a] rational fact-finder might discount

[the    affidavit]         or,   conceivably,         find   it    incredible, . . . no

rational fact-finder would simply ignore” the affidavit or fail

to address it entirely.                  See Taylor v. Maddox, 366 F.3d 992,

1006 (9th Cir. 2004).

       Because the Supreme Court of Virginia—in resolving disputed

issues of fact, based on conflicting and partially unaddressed

sworn       affidavits,          without    an        evidentiary        hearing—made         an

unreasonable         determination         of    the    facts      under    28       U.S.C.    §

2254(d)(2), I would vacate the judgment of the district court as

to Gray’s ineffective assistance of counsel claim and remand for

an evidentiary hearing and the development of a full factual

record.

       Of    course,        my    difference         with    the    majority         does    not

remotely         reflect    any     view    of       trial   counsel.           With    a    few

exceptions spread in reported cases, defense counsel in capital

                                                44
cases perform conscientiously and in a manner entirely faithful

to   the   noble   ideals     of    the   legal      profession.          Despite   this

truism,    however,    such    counsel         are    not    at     all   surprised    or

bothered by the fact that, given the stakes, their judgments and

their trial performances will likely come under attack by fellow

counsel    in   subsequent         post-conviction          proceedings.     This     may

entail,    as   it    should       have   in     this       case,    subjecting     such

conscientious        counsel        to    the        unpleasantness        of     cross-

examination.       But our adversary system in cases involving the

highest of stakes—life or death—should admit of nothing less.




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