                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-9


IVAN TELEGUZ,

                Petitioner - Appellant,

           v.

DAVID ZOOK, Warden, Sussex I State Prison,

                Respondent - Appellee.



                               No. 14-2


IVAN TELEGUZ,

                Petitioner - Appellant,

           v.

DAVID ZOOK, Warden, Sussex I State Prison,

                Respondent - Appellee.



Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.    James P. Jones, District
Judge. (7:10−cv−00254−JPJ)


Argued:   September 16, 2015               Decided:   November 30, 2015


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


ARGUED: Michael Francis Williams, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellant.      Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee. ON BRIEF: Kenneth W. Allen, William P.J. Kimmitt,
KIRKLAND & ELLIS LLP, Washington, D.C.; Matthew C. Stiegler,
Philadelphia, Pennsylvania; Elizabeth J. Peiffer, VIRGINIA
CAPITAL   REPRESENTATION  RESOURCE   CENTER,   Charlottesville,
Virginia, for Appellant.  Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.




                               2
WYNN, Circuit Judge:

       In 2006, a jury convicted Ivan Teleguz of capital murder

for hire of his ex-girlfriend.                        After making his way through the

Virginia state courts, Teleguz sought habeas corpus relief in

federal court.           In 2012, this Court held that the district court

had    failed      to    engage          in   a   sufficient         inquiry    into    Teleguz’s

habeas         petition,      particularly            as   it    related       to     his   gateway

innocence claim.           Accordingly, we remanded for reconsideration.

       Before      us     now       is    the     fruit    of        that   remand.         After   a

several-day            evidentiary            hearing,         the     district       court      made

determinations            using          the      appropriate          legal        standard      and

supported         by    the     record.            The     district         court’s    denial       of

Teleguz’s petition for a writ of habeas corpus therefore stands.

                                                   I.

       In       2001,     Stephanie            Sipe      was     found       murdered       in   the

Harrisonburg, Virginia apartment she shared with her infant son.

While Teleguz, Sipe’s ex-boyfriend and her son’s father, had

been       a   suspect,       the    investigation             had    stalled     until     Aleksey

Safanov, 1        imprisoned             in    Massachusetts           on    federal        charges,

provided a tip to United States Marshal Michael Nelson that “he

knew of a Russian male that had his wife killed.                                He said that a


       1
       Safanov was also Teleguz’s co-defendant in a firearms
possession and sales case in which Safanov pled guilty and
Teleguz went to trial and was convicted on all counts. United
States v. Teleguz, 492 F.3d 80 (1st Cir. 2007).
                                                    3
Russian male hired a black male from Pennsylvania, Lancaster,

Pennsylvania to kill his wife.”                    J.A. 2828.      Safanov’s tips led

to Edwin Gilkes, and U.S. Marshal Nelson passed the information

on   to   the     Harrisonburg        Police       Department.         Ultimately,    the

investigation resulted in, among other things, a capital murder

for hire case against Teleguz.

      In February 2006, a jury convicted Teleguz of murder for

hire.     Teleguz v. Pearson, 689 F.3d 322, 325 (4th Cir. 2012).

Michael     Hetrick,        who     had      actually      committed     the     killing,

testified        at   trial    that    Teleguz       had    paid   him   two     thousand

dollars to slit Sipe’s throat.

      Hetrick’s murder-for-hire allegations were corroborated by

both Gilkes and Safanov.                  Gilkes testified that he had been

present     at    a   birthday      party     where     Teleguz    hired    Hetrick    to

commit the murder.             Gilkes also testified that he accompanied

Hetrick     to    Sipe’s      apartment       and    waited    outside     for   Hetrick

during the murder.            Gilkes further claimed that he was afraid of

Teleguz because he had heard rumors that Teleguz was a member of

the Russian mafia.

      Safanov testified at Teleguz’s trial that Teleguz attempted

to   hire   him       to   murder     Sipe    to    avoid     paying    child    support.

Safanov also testified that Teleguz had spoken to him about the

murder after it had occurred, complaining that the man he had

hired to kill Sipe had left blood at the scene and offering

                                              4
Safanov money to “eliminate” the killer.                Teleguz, 689 F.3d at

326.

       In February 2006, a Virginia jury recommended that Teleguz

be sentenced to death upon finding two statutory aggravating

factors: vileness and future dangerousness.                 The Supreme Court

of Virginia affirmed Teleguz’s conviction and sentence.                  Teleguz

v. Commonwealth, 643 S.E.2d 708 (Va. 2007).                 Teleguz proceeded

to file a petition for writ of habeas corpus in state court,

which    the   Supreme    Court    of    Virginia    dismissed.       Teleguz   v.

Warden of Sussex I State Prison, 688 S.E.2d 865 (Va. 2010).

       Teleguz    then    turned    to    the   federal     courts,    filing   a

petition for writ of habeas corpus in the United States District

Court for the Western District of Virginia in November 2010.

Some of Teleguz’s claims had been adjudicated on the merits in

state     court   while    others       had   been   procedurally      defaulted.

Teleguz, 689 F.3d at 326.               Teleguz argued that his defaulted

claims should nevertheless be considered, primarily because he

had     new,   reliable    evidence      that   he    was   actually    innocent

(“Gateway Innocence Claim”).

       In support of his Gateway Innocence Claim, Teleguz offered

what we previously described as three categories of evidence.

First, Teleguz presented affidavits of witnesses who indicated

that they had not seen him at the birthday party during which he

was alleged to have hired Hetrick to kill Sipe.                       Second, he

                                          5
presented      evidence    to     establish      that     a    murder       in     Ephrata,

Pennsylvania alluded to during his trial never occurred.                               Third,

and   most    importantly,      Teleguz       presented       affidavits          in   which

Gilkes and Safanov recanted testimony they offered at Teleguz’s

trial.

      Gilkes claimed that he had been coerced into testifying

against Teleguz by the prosecutor, who “made clear that if [he]

did not, [he] would have been the one on death row today, not

Teleguz.”      J.A. 3546.       Gilkes executed affidavits in both 2008

and 2010 disavowing aspects of his trial testimony.

      Similarly,       Safanov,    who    had    left    the    United       States      for

Kazakhstan     and     Kyrgyzstan,    ostensibly        submitted       an       affidavit.

According to that affidavit, as well as affidavits submitted by

Teleguz’s defense team, which had been in contact with someone

claiming     to   be    Safanov,    Safanov     asserted       that     he       had   never

discussed     Sipe’s     murder    with    Teleguz      and     agreed       to    testify

falsely      during    Teleguz’s     trial      because       both    the    prosecutor

pursuing Teleguz and a United States marshal told him that if he

cooperated, he would be eligible for perks including an S visa

allowing him to remain in the United States despite pending gun

charges.

      In August 2011, the district court denied Teleguz habeas

relief without holding a hearing.                  Teleguz v. Kelly, 824 F.

Supp.2d 672 (W.D. Va. 2011).              Teleguz appealed, arguing that he

                                          6
was    “entitled        to     an    evidentiary        hearing     to    demonstrate      a

miscarriage of justice.”                  Petitioner’s Br. at ii.                This Court

vacated     and   remanded          for    a   rigorous      Gateway     Innocence      Claim

analysis, strongly suggesting that an evidentiary hearing may be

warranted to assess the credibility of the recanting witnesses.

Teleguz, 689 F.3d 322.

       On   remand      in    district         court,   Teleguz     changed      his    tune,

“arguing that an evidentiary hearing [was] unnecessary” and that

the district court should decide his Gateway Innocence Claim “on

the cold record.”             Teleguz v. Pearson, No. 7:10CV00254, 2012 WL

6151984, at *2 (W.D. Va. Dec. 11, 2012).                          “In light of th[is

Court’s] instructions,” however, the district court found that

an     evidentiary           hearing       was       “necessary.”          Id.     at     *3.

Accordingly,       it        held    a    several-day        evidentiary      hearing      in

November 2013.

       At the hearing, Gilkes appeared but refused to testify.

And Safanov did not appear, even by deposition or phone.                                  In

other words, neither of the recanters testified in support of

their recantations.              Meanwhile, Hetrick appeared and testified

in detail and consistent with his trial testimony, i.e., that

Teleguz had hired him to kill Sipe.                          Prosecutor Marsha Garst,

whom    Gilkes     and        Safanov      accused      of    threatening        them   into

testifying against Teleguz, appeared and testified that those

accusations were false.                  And U.S. Marshal Nelson testified that

                                                 7
Safanov’s       accusation      that      Nelson    had    told    Safanov      he    could

benefit from an S visa for assisting the government was also

false.

       Ultimately, in July 2014, the district court again denied

Teleguz’s petition.             The district court held that it “c[ould]

not conclude that more likely than not, given the overall, newly

supplemented       record,      no       reasonable       juror   would      have     found

Teleguz       guilty    beyond       a     reasonable       doubt.     As     such,    the

petitioner has not made a threshold showing of actual innocence

to permit review of his procedurally-defaulted claims.”                             Teleguz

v. Davis, No. 7:10CV00254, 2014 WL 3548982, at *20 (W.D. Va.

July   17,    2014)    (quotation         marks    and    citation     omitted).        The

district court also rejected Teleguz’s claim that he had made a

sufficient showing that his habeas attorneys had been deficient

in    failing    to    pursue    the      Ephrata,       Pennsylvania       murder    issue

(“Martinez Claim”).             This     appeal    ensued.        We   now    review    the

district court’s denial of Teleguz’s habeas petition de novo.

Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009).

                                            II.

       The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) sharply limits federal habeas relief.                        Sharpe v. Bell,

593    F.3d     372,   378-79     (4th      Cir.    2010).        If   a     state    court

adjudicates a petitioner’s claims on the merits, a federal court

may provide relief only if the resulting state court decision

                                             8
“[i]s contrary to or involved an unreasonable application of

federal law” or “[i]s based on an unreasonable determination of

the facts in light of the evidence” that was before it.                                      28

U.S.C. § 2254(d).

      Generally, a federal court may not consider claims that a

petitioner      failed    to     raise       at     the    time    and    in    the    manner

required under state law.                   House v. Bell, 547 U.S. 518, 536

(2006).         Exceptions           exist,        however,       when     “the     prisoner

demonstrates      cause        for    the     default      and     prejudice       from    the

asserted error.”         Id.

      One such exception is made for cases in which a compelling

showing of actual innocence enables a federal court to consider

the merits of a petitioner’s otherwise defaulted claims.                                    See

Schlup    v.   Delo,     513     U.S.       298    (1995).        In     such   cases,     new

evidence “establish[es] sufficient doubt about [a petitioner’s]

guilt to justify the conclusion that his execution would be a

miscarriage of justice unless his conviction was the product of

a fair trial.”      Id. at 316 (emphasis omitted).

      Another such exception exists for ineffective-assistance-

of-trial-counsel claims where “(1) the ineffective-assistance-

of-trial-counsel claim is a substantial one;” (2) the “cause”

for   default    “consist[s]          of     there      being     no     counsel      or   only

ineffective      counsel         during           the     state     collateral         review

proceeding;” (3) “the state collateral review proceeding was the

                                               9
initial      review         proceeding      in       respect       to    the       ineffective-

assistance-of-trial-counsel claim;” and (4) state law requires

that an ineffective assistance claim “be raised in an initial-

review collateral proceeding.”                   Fowler v. Joyner, 753 F.3d 446,

461   (4th    Cir.     2014),       cert.       denied,      135    S.       Ct.   1530    (2015)

(quotation marks and citations omitted).                           When these conditions

are   met,      the    merits       of     an    otherwise         defaulted        ineffective

assistance claim may be reached.                      Martinez v. Ryan, 132 S. Ct.

1309, 1320 (2012).

      Both      of    these        exceptions        are,     in    essence,         procedural

mechanisms.           If     the    requisite        showing       is    made,      they    allow

otherwise     defaulted        substantive           claims    to       be    reached      on   the

merits.      Id.; Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th

Cir. 2004) (distinguishing between a substantive claim and a

gateway claim through which a habeas petitioner must pass to

have his substantive claims considered on the merits).                                     Stated

differently, although a petitioner claims actual innocence, for

example, for purposes of asserting a gateway innocence claim,

such an innocence claim “does not by itself provide a basis for

relief.      Instead, his claim for relief depends critically on the

validity”     of      his    procedurally         defaulted        claims.          Coleman      v.

Hardy,    628      F.3d      314,    318    (7th      Cir.     2010)         (quotation     marks

omitted).



                                                10
      With this legal framework in mind, we turn to Teleguz’s

Schlup and Martinez arguments.

                                          A.

      With his main argument on appeal, Teleguz challenges the

district    court’s     rejection     of       his   Gateway       Innocence      Claim.

Teleguz contends that the district court’s analysis was unsound

and that its conclusion constitutes reversible error.                        With both

contentions, we disagree.

       When a petitioner raises a gateway innocence claim, it

must be supported by “new reliable evidence.”                       Schlup, 513 U.S.

at 324 (emphasis added).            However, in its consideration of a

petitioner’s Schlup gateway innocence claim, the district court

“must consider ‘all the evidence’ old and new, incriminating and

exculpatory, without regard to whether it would necessarily be

admitted    under    ‘rules    of   admissibility           that    would    govern    at

trial.’”    House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at

327–28).

      In cases with recantations, evidentiary hearings “may be

necessary    to     assess    whether      [they]         are    credible.    .   .    .”

Teleguz, 689 F.3d at 331 (quotation marks and citation omitted).

Without doubt, “the district court is permitted under Schlup to

‘make some credibility assessments’ when, as here, a state court

has   not   evaluated    the    reliability          of    a     petitioner’s     ‘newly

presented    evidence    [that]     may    indeed         call    into   question     the

                                          11
credibility of the witnesses presented at trial.’”           Id. at 331-

32 (quoting Schlup, 513 U.S. at 330).

     Ultimately, the district court must determine whether “it

is more likely than not that no reasonable juror would have

found     [the]   petitioner   guilty    beyond   a   reasonable   doubt.”

Schlup, 513 U.S. at 328.       Or, as this Court put it, “to satisfy

the Schlup standard, a petitioner must . . . demonstrate that

the totality of the evidence would prevent any reasonable juror

from finding him guilty beyond a reasonable doubt, such that his

incarceration is a miscarriage of justice.”            Teleguz, 689 F.3d

at 329.     Only then may the district court reach the merits of

the petitioner’s procedurally defaulted claims.          House, 547 U.S.

at 538.

     The Supreme Court has underscored that “the Schlup standard

is demanding” and permits merits review only in “extraordinary”

cases.     House, 547 U.S. at 538 (quotation marks omitted).          See

also McQuiggin v. Perkins, 133 S. Ct. 1924, 1936 (2013) (“We

stress once again that the Schlup standard is demanding.              The

gateway should open only when a petition presents evidence of

innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the

trial was free of nonharmless constitutional error.”) (quotation

marks and citation omitted).            At the same time, though, the

Schlup standard does not require absolute certainty about the

                                    12
petitioner’s innocence.               Rather, the petitioner must demonstrate

that     more    likely     than      not,    in   light     of    new   and    reliable

evidence, no reasonable juror would find him guilty beyond a

reasonable doubt.          House, 547 U.S. at 538.

       Based on the record before us now, we, like the district

court, are unable to reach the conclusion that “the totality of

the evidence would prevent any reasonable juror from finding

[Teleguz] guilty beyond a reasonable doubt.”                       Teleguz, 689 F.3d

at 329.

                                             1.

       We    focus   first       on   the    Gilkes    and   Safanov     recantations,

which are at the heart of Teleguz’s Gateway Innocence Claim.

Gilkes      recanted      several     key    aspects    of   his    trial      testimony,

which he claimed were the products of coaching and intimidation.

Specifically,        in    his    post-trial       affidavits,      Gilkes      recanted,

among other things, his claim that Teleguz was present at David

Everhart’s birthday party, where Hetrick contended that Teleguz

had hired him to kill Sipe.                   Further, Gilkes claimed that he

“never heard or overheard Ivan Teleguz hiring Michael Hetrick to

kill his ex-girlfriend,” J.A. 3484, and claimed that he did not

“know who hired Hetrick to kill Ms. Sipe, or if anyone hired

him.”       J.A. 3548.

       Gilkes claimed that he had been coerced into testifying

against Teleguz by the prosecutor, who “made clear that if [he]

                                             13
did not, [he] would have been the one on death row today, not

Teleguz.”     J.A. 3546.                Per, Gilkes “[m]ost of [his] testimony

was fabricated,” id., and he “said those things because Marsha

Garst told [him] that she was only interested in information

that put this murder on Ivan Teleguz.”                                 J.A. 3484.           Gilkes

plainly stated in his affidavits that Garst and Investigator

Whitfield, the police detective on the case, told him to say

that    Teleguz       was    responsible          for        Ms.     Sipe’s       murder.         For

example, Gilkes asserted:

            I said those things because Marsha Garst told me
       that she was only interested in information that put
       this murder on Ivan Teleguz.      During at least one
       interrogation of me by Marsha Garst, she directed the
       investigator to turn off the tape recorder. While the
       tape was off, she told me that it was Ivan Teleguz
       that she was interested in.     She already knew that
       Michael Hetrick had done the killing because she had
       his DNA at the scene.    She said that any deal I got
       would depend on me giving her Ivan Teleguz, and she
       told me to give her as much about Ivan Teleguz as I
       could.
J.A. 3484.

       Likewise,       Safanov      later        claimed      that     he     never    discussed

Sipe’s    murder       with        Teleguz       and     agreed        to     testify       during

Teleguz’s     trial         only    because           both    the     prosecutor          pursuing

Teleguz    and     a    United          States    marshal           told    him    that     if    he

cooperated,      he    would       be    eligible       for        perks    including       a    visa

allowing him to stay in the United States.




                                                 14
       Because Safanov had left the United States, contact with

him has been only long-distance.             Teleguz’s defense team had had

conversations with someone claiming to be Safanov and submitted

affidavits stating, for example:

             In the first phone call, we identified ourselves
       as Teleguz’s lawyers.     Safanov told us that Marcia
       [sic]    Garst,   the   Commonwealth’s  Attorney   who
       prosecuted Teleguz, guaranteed she would get Safanov
       an S Visa. An S Visa would allow him to stay in the
       country despite his criminal convictions.        Garst
       promised Safanov she would get him an S Visa, if
       Safanov would help Garst get the death penalty for
       Teleguz.

J.A.   3555.     Similarly,       the   recanting    affidavit       executed    by

someone     claiming   to   be    Safanov    himself     stated,     among    other

things:

            Ivan has never told me that he had arranged to
       have Stephanie Sipe killed, and my testimony at his
       capital murder trial, that he did tell me this, was
       false. I was pressured by Marsha Garst, the Virginia
       prosecutor in Ivan’s capital case, to testify that
       Ivan had arranged the murder so that Ivan would get
       the death penalty.     In exchange for my testimony,
       Garst offered to help me in a number of ways,
       including help getting a good deal on federal criminal
       charges I was facing at the time.

J.A.    3595.

       Neither   Safanov    nor   Gilkes     testified    at   the    evidentiary

hearing.     The district court thus noted its “limited ability to

judge their truthfulness.”         Teleguz, 2014 WL 3548982, at *9.

       By    contrast,      the    government       witnesses        accused     of

misconduct—Garst,        Whitfield,      and    Nelson—testified         at     the


                                        15
evidentiary hearing.               For example, Safanov claimed Garst had

visited    him     in     prison       with    cookies    she     had    baked      for      him.

Garst’s    response       at     the    evidentiary       hearing:      “I    do    not      bake

cookies for inmates, nor would I have done that.”                                 J.A. 2893.

When asked if she had made Safanov any guarantees about an S

visa,    she   flatly      denied       any    such    allegations,       noting        “I’m    a

local     state    constitutional              officer;    I     cannot      make       such    a

representation.”           J.A. 2892.            And Garst flatly denied having

instructed     either       Safanov       or    Gilkes    to     lie—either        to    secure

Teleguz’s capital conviction or for any other reason.

     Similarly, when U.S. Marshal Nelson was asked, for example,

if he had spoken “with Mr. Safanov about any visa issues that he

was facing,” he flatly denied with a “No, sir.”                                   J.A. 2838.

Nelson similarly denied having any discussions with Safanov’s

girlfriend        about     Safanov’s          visa    issues.          Instead,         Nelson

confirmed that he had not even known about the S visa program

for government cooperators at the pertinent time.                                 Nelson also

made plain that he had had no involvement with the Virginia

investigation       of     the     Sipe       murder     after    he    relayed         to     the

Harrisonburg       police        the    tip     information       that       rekindled         the

stalled investigation and ultimately led to Teleguz.

     Despite       the     claims       of     prosecutorial      misconduct,           at     the

evidentiary hearing, Garst, Whitfield, and Nelson testified and

denied     Gilkes’s         and        Safanov’s       accusations           of     coaching,

                                                16
intimidation,        and    misconduct.          Teleguz’s       counsel     had    the

opportunity to cross-examine these witnesses.                     And the district

court found Garst’s, Nelson’s, and Whitfield’s versions of the

pertinent events “reasonable,” and their testimony “credible.”

Teleguz, 2014 WL 3548982, at *10-11.

       In other words, the district court had before it affidavits

asserting that Gilkes and Safanov had falsely testified about

Teleguz’s     guilt    at   the   behest    of    the     prosecution.        But   the

recanting affiants chose not to testify and were not subject to

cross-examination.             Meanwhile,         the      government       witnesses

implicated in Gilkes’s and Safanov’s affidavits took the stand

and gave reasonable accounts that the district court believed.

The district court therefore credited the prosecution’s version

of   events    and    discredited     Gilkes’s          and    Safanov’s    versions,

specifically       finding     the   recanting          affidavits      “unreliable.”

Teleguz, 2014 WL 3548982, at *10.

       When we remanded this matter for an evidentiary hearing—at

Teleguz’s express request—we made plain that the district court

could,      and      indeed,      might        need      to,     make      credibility

determinations.       Teleguz, 689 F.3d at 331.                See also Schlup, 513

U.S. at 330 (“[T]he newly presented evidence may indeed call

into   question      the    credibility    of     the    witnesses      presented    at

trial.    In such a case, the habeas court may have to make some

credibility       assessments.”).          The        district   court     heard    our

                                          17
instructions loud and clear, held a several-day hearing, and

made the necessary credibility determinations. 2

     Credibility        determinations      are    “deserving     of    the    highest

degree    of     appellate   deference.”           Evergreen      Int’l,      S.A.   v.

Norfolk    Dredging      Co.,     531    F.3d     302,   308    (4th    Cir.     2008)

(quotation marks and citation omitted).                  See also, e.g., O’Dell

v. Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (en banc)

(noting that “the district court’s factual findings regarding

the credibility of testimony it has actually heard are findings

subject to review only under a clearly erroneous standard”).

Indeed, the court below, and “not the reviewing court, weighs

the credibility,” and we generally “do not review credibility

determinations.”        Smith v. Bank of Am., N.A., 443 F. App’x 808,

809 (4th Cir. 2011) (unpublished).

     We    see     no   basis     for    substituting     our     own   credibility

determinations for the district court’s.                       Gilkes and Safanov

claimed that they lied at trial because they were instructed and

intimidated into doing so by the prosecution.                      But Gilkes and

Safanov refused to testify at the evidentiary hearing and affirm

their     recantations       or     be     subject       to     cross-examination.

Meanwhile,        the     implicated           prosecution        witnesses—Garst,

     2 Nowhere in our prior opinion did we “order,” Petitioner’s
Br. at 28, the district court to make a finding on remand
regarding whether the circumstances surrounding the Gilkes and
Safanov recantations were the result of coercion, bribery, or
misdealing.
                                          18
Whitfield,     and   Nelson—did   testify,    were   cross-examined   by

Teleguz’s    counsel,   and   were   deemed   credible.    Under   these

circumstances, we uphold the district court’s determination that

the recanting affidavits did not constitute the “reliable” new

evidence that Schlup requires.       Schlup, 513 U.S. at 324. 3

                                     2.

      In contrast to Gilkes and Safanov, Hetrick testified at the

evidentiary hearing.       Teleguz argues that the district court

erred in finding Hetrick’s testimony credible.         Again, we see no

basis for disturbing the district court’s determination. 4

      At trial and at the evidentiary hearing, Hetrick testified

that Teleguz agreed to pay him two thousand dollars to kill

Sipe, who had taken money and drugs from Teleguz and sought

child support for their infant son.         Teleguz later drove Hetrick

and   Gilkes    from    Lancaster,    Pennsylvania   to   Harrisonburg,

Virginia, where Sipe lived, showed them her apartment, and then

left them to establish an alibi.          Hetrick gained entry into the


      3The district court also noted inconsistencies and gaps in
the recanting affidavits.        That discussion is, however,
tangential to the larger thrust, i.e., the prosecutorial
intimidation and influence, which is thus our focus.
     4 Teleguz plainly overreaches in trying to suggest that in

stating “having observed his demeanor and testimony first-hand,
I believe that Hetrick’s evidence alone was sufficient to have
convinced the jury of Teleguz’s guilt,” Teleguz, 2014 WL
3548982, at *17, the district court thereby “rejected” the state
court’s statement that “to return a guilty verdict, the jury had
to believe the testimony of Safanov, Gilkes, and Hetrick.”
Petitioner’s Br. at 30-32.
                                     19
apartment         and    slit     Sipe’s       throat        as    Teleguz    had    directed.

However, Sipe fought back and, in the struggle, Hetrick wounded

his hand with his own knife.                           Afterwards, while cleaning his

wound, he discovered the couple’s infant son in the bathtub.

Hetrick turned off the bathtub water and left.

       The    district          court       had     the      opportunity     to      “observe[]

[Hetrick’s]        demeanor       and       testimony        first-hand”     and     found   his

account      detailed,          consistent         with      his    trial    testimony,      and

“highly creditable.”                  Teleguz, 2014 WL 3548982, at *17.                      The

district      court       did     not       wholly      discount      Hetrick’s      testimony

because      he    secured        a    better       deal      with    the    government      for

cooperating        or     because       of     the      risks      associated       with   later

changing his account.                  Instead, the district court noted, for

example, that “[l]eniency for government cooperators is common,

and absent evidence of other misconduct, their motivation to

help   themselves          does       not   render        their     statements      necessarily

unreliable.”            Id. at *16.         Again, credibility determinations are

“deserving         of     the    highest          degree      of    appellate       deference,”

Evergreen     Int’l,        S.A.,      531    F.3d      at    308    (quotation      marks   and

citation omitted), and we see no basis for swapping the district

court’s credibility determination out in favor of our own.

       Teleguz attempts to make much of the fact that the district

court, at the warden’s request, appointed Hetrick—and Gilkes—

independent counsel for purposes of the evidentiary hearing.                                  We

                                                  20
refuse Teleguz’s invitation to read impropriety into either the

warden’s   or   the   district     court’s      looking   out     for   Gilkes’s,

Hetrick’s, or anyone’s, rights and interests by appointing them

independent     counsel    under   circumstances      such   as    these.     And

while the language the warden’s counsel used in the motions to

appoint independent counsel was, no doubt, stark, the warden’s

counsel was stating a seemingly obvious truth: that testifying

at an evidentiary hearing in a manner that contradicted how they

testified at trial could have serious legal consequences such as

perjury or broken plea agreements for Gilkes, Safanov, Hetrick,

or any witness.

      Further, Teleguz heavily relies on Wolfe v. Clarke, 718

F.3d 277 (4th Cir. 2013), cert. denied, 134 S. Ct. 1281 (2014).

But we fail to see how Wolfe advances the ball for Teleguz.                    In

Wolfe, the prosecution illicitly threatened a recanting witness

whose recantation had already been deemed candid and persuasive

at an evidentiary hearing to impact how he would testify at

Wolfe’s retrial.          Indeed, the Wolfe proceedings were riddled

with grave prosecutorial misconduct such as interview recordings

that authorities refused to hand over and joint meetings with

key witnesses to choreograph and coordinate testimony.                      Under

those circumstances, the district court found that Wolfe had met

the   Schlup    standard    and    that    he   had   presented     meritorious

claims.    Id. at 280-81.      Yet even in the face of all that, this

                                      21
Court held       that    the   district         court       abused   its   discretion   in

barring the government from retrying Wolfe, stating “[w]e are

confident that the retrial will be properly handled, and, if

convictions result, that the appellate courts will perform their

duties.”    Id. at 289.

                                                3.

       Teleguz     also     contends        that        he    “presented     substantial

evidence that he was not even present at the birthday party”

where, according to Hetrick’s and Gilkes’s trial testimony and

Hetrick’s hearing testimony, Teleguz had hired Hetrick to kill

Sipe.      Petitioner’s        Br.    at    41.        According      to   Teleguz,   this

undermines    the       credibility        of    Hetrick’s      story.       In   reality,

however, the evidence presents a much more mixed picture as to

whether Teleguz attended the birthday party.

       Teleguz submitted several affidavits in which individuals

stated that they had not seen Teleguz at the birthday party.

Importantly, two such affidavits belonged to the party hosts,

whom    Teleguz     deposed      de    bene          esse    before    the   evidentiary

hearing.     The female host—Latesha Everhart, who is also Gilkes’s

sister—testified at deposition that her husband was so drunk the

night of the party that he would not have been in a position to

know who was there.

       Further, and crucially, Everhart testified that “half of

the stuff in [her affidavit] isn’t true.”                             J.A. 3231.        She

                                                22
stated that Teleguz “could have been there.”              J.A. 3204.       “Edwin

[Gilkes] could have let him in upstairs without coming through

the front door.”     J.A. 3237. 5        In other words, the party hosts

had no idea whether Teleguz was at the party or not.                 The female

host thus expressly disavowed the statement in her affidavit

that “Ivan Teleguz was definitely not at my husband[’s] birthday

party.”     J.A. 3204.   What’s more, she raised serious questions

about the integrity of the affidavits. 6

     In light of the open question the affidavits present as to

whether Teleguz had attended the birthday party, we share the

district court’s reluctance to find this evidence to be the kind

of “reliable” new evidence needed to meet the demanding Schlup

standard.    Schlup, 513 U.S. at 324

                                    4.

     The last category of evidence supporting Teleguz’s Gateway

Innocence    Claim   purportedly     establishes      that     the     Ephrata,

Pennsylvania    murder   alluded    to    during   Teleguz’s      trial     never

occurred.      But   this   evidence,       even   more    than      the    other

     5 Gilkes independently confirmed that, to enter his room, he
would “go up through the back of the house through the fire
escapes and come in through a window.” J.A. 4372.
     6 Everhart testified in her deposition that a young woman

visited her, wrote some things down, and left.      Several weeks
later, Everhart was asked to sign a paper, presumably the
affidavit, but never given her own copy.      Everhart was asked:
“Do you have any reason to think that the affidavit you signed
was altered or changed?”    J.A. 3230-31.   And she responded in
the affirmative: “Yeah, I do . . . . Because half of the stuff
in there isn’t true.” Id. at 3231.
                                    23
categories already discussed, fails to add the requisite heft to

Teleguz’s Gateway Innocence Claim.

       Gilkes’s specific testimony about the Ephrata, Pennsylvania

murder was that “down in Ephrata one day . . . a couple of []

Russians on Main Street were outside the parking lot of the rec

center.    There was two men that got out of the car.             We figured

they   were   both,   they   were   both   Russians   to   the   best   of    my

knowledge.”     J.A. 4420.     Gilkes continued that “the one walked

up and said that . . . if his boys didn’t have the money at a

certain time that in a couple of days that some of them would be

killed.”      Id. at 4421.     Gilkes testified that Teleguz did not

make that statement but “was present during the statement.”                  Id.

Gilkes reported that someone was later killed, “a week, three

days to a week after that in Ephrata Street, on Main Street.”

Id. at 4422.      In other words, Gilkes plainly did not testify

that Teleguz had killed anyone in Ephrata, Pennsylvania.

       During the evidentiary hearing, Teleguz presented evidence

that no murder had ever occurred outside the recreation center

in Ephrata, Pennsylvania (though other evidence indicated that a

murder in which Teleguz may have been involved had occurred in a

nearby town).     He thus suggested that the jury was misled into

believing that he had been behind a phantom murder.

       We fail to see how the Ephrata, Pennsylvania murder issue

could show that Teleguz was actually innocent of Sipe’s murder

                                     24
in Harrisonburg, Virginia.                The Ephrata, Pennsylvania murder-

related     evidence      thus     cannot        support    a   determination     that

Teleguz had met the “demanding” Schlup standard.                          House, 547

U.S. at 538.

                                            5.

       Even in the face of the broadened record, we cannot say

that this is the “rare” and “extraordinary” case in which it is

more    likely    than     not     that     no     reasonable    jury    would    have

convicted Teleguz as the jury did here.                    House, 547 U.S. at 538,

554.     A brief overview of a case in which the Supreme Court

found the gateway innocence standard to be met is instructive

regarding     what   a     sufficiently      strong        gateway    innocence   case

looks like and why the mixed picture here does not meet the

standard.

       In   House,   the    defendant       was     convicted    and    sentenced   to

death in large part based on forensic evidence, specifically

semen found on the victim’s nightgown and underwear, and blood

stains found on the defendant’s pants.                     House, 547 U.S. at 540-

41.    Later DNA analysis, however, showed that the semen was in

fact the victim’s husband’s, not the defendant’s, and that the

blood stains on the defendant’s pants likely resulted from the

victim’s blood spilling out of vials taken into evidence and

transported in the same container, at the same time, as the

defendant’s      pants.      Id.    at    541-45.          Further,    there   existed

                                            25
evidence that the victim’s husband physically abused her, that

she had reported shortly before her death that she was afraid of

her husband and wanted to leave him, and even that her husband

had later confessed to having killed her.                            Id. at 548-49.          While

the Supreme Court stressed that “it bears repeating that the

Schlup standard           is   demanding      and       permits       review    only       in    the

‘extraordinary,’ case,” id. at 538, it deemed House to be that

“rare      case     where—had      the     jury         heard     all     the       conflicting

testimony—it is more likely than not that no reasonable juror

viewing the record as a whole would lack reasonable doubt.”                                     Id.

at 554.      This case, while perhaps troubling, is no House.

      In     sum,       the    district    court         applied       the    correct       legal

framework to the totality of the evidence before it.                                      It made

the   credibility         determinations           we    had     indicated          it    had    the

authority      to      make.      We   must    give       those       determinations            “the

highest degree of appellate deference,” Evergreen Int’l, S.A.,

531     F.3d      at    308     (quotation     marks           and     citation          omitted).

Particularly in light of those credibility determinations, we,

like the district court, “cannot conclude that more likely than

not, given the overall, newly supplemented record, no reasonable

juror      would       have    found   Teleguz          guilty       beyond     a    reasonable

doubt.” 7      Teleguz, 2014 WL 3548982, at *20 (quotation marks and


      7
      Teleguz seizes on the district court’s use of the word “I”
to suggest that the court failed to consider how a jury would
                                              26
citation omitted).             And because the Gateway Innocence Claim was

Teleguz’s hook for moving past procedural default, we refrain

from addressing the underlying, defaulted claims.

                                             B.

          With his second argument on appeal, Teleguz challenges the

district         court’s    rejection      of     his    Martinez     Claim.        Teleguz

contends that the district court’s analysis was fatally flawed

by    a    mistaken      belief   that     the    jury    had   not    been    told      that

Teleguz had been involved in the Ephrata, Pennsylvania murder.

We see no such fatal flaw.

          As an initial matter, we note that the district court erred

to the extent it suggested that Teleguz had failed to preserve

the       Martinez    issue.      See      Teleguz,      2014   WL    3548982,      at   *22

(“Martinez was decided by the Supreme Court on March 20, 2012,

prior       to    oral     argument   in    Teleguz’s       appeal     to     the   Fourth

Circuit, but was not raised there . . . .”).                         In footnote 12 on

pages 23 to 24 of his pre-remand opening brief, Teleguz raised

the       Martinez    issue    and    acknowledged        the   lack   of     then-extant



react to the newly supplemented evidentiary record. We reject a
myopic focus on the pronouns used but instead look to what the
district court actually did.    Without doubt, the district court
held that it was not “more likely than not, given the overall,
newly supplemented record, [that] no reasonable juror would have
found Teleguz guilty beyond a reasonable doubt.” Teleguz, 2014
WL 3548982, at *20. Teleguz’s assertion that the district court
“never answered” the “essential question” of whether “reasonable
jurors . . . would still find guilt beyond a reasonable doubt,”
Petitioner’s Br. at 26, is thus plainly incorrect.
                                             27
legal support but expressly noted the argument for preservation

purposes.       We therefore move to the merits, which the district

court also addressed.

       Like Schlup, Martinez is an exception that enables habeas

petitioners to obtain merits review of otherwise procedurally

defaulted       claims    under    certain      circumstances.         Specifically,

Martinez claims may be reviewed only if, among other things,

“the      ineffective-assistance-of-trial-counsel                   claim      is    a

substantial      one,”     and    the   cause    behind    the     default    was   “no

counsel    or     only    ineffective     counsel”        during    the     collateral

review proceedings.          Fowler, 753 F.3d at 461 (quotation marks

and citations omitted).

       Regarding    the    requirement       that   there    be    a   “substantial”

claim, the Supreme Court held that a prisoner must “demonstrate

that      the     underlying       ineffective-assistance-of-trial-counsel

claim is a substantial one, which is to say that the prisoner

must demonstrate that the claim has some merit.”                       Martinez, 132

S. Ct. at 1318.          Relatedly, to show ineffective assistance, “the

petitioner must make a ‘substantial’ showing with respect to

both counsel’s competency (first-prong Strickland) and prejudice

(second-prong       Strickland).”         Brian     R.    Means,    Federal     Habeas

Manual § 9B:62 (citing Clabourne v. Ryan, 745 F.3d 362, 376 (9th

Cir. 2014)).



                                          28
       As to the specific elements of the ineffective assistance

claim,     a    petitioner        must     make    a     substantial       showing   of

incompetency, i.e., “that counsel made errors so serious that

counsel was not functioning as the counsel guaranteed . . . by

the Sixth Amendment.”               DeCastro v. Branker, 642 F.3d 442, 450

(4th     Cir.    2011)      (quotation        marks      and    citation     omitted).

Further, the petitioner must make a substantial showing that

“counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable,” i.e., that

there was “a substantial, not just conceivable, likelihood of a

different result.”          Id. (quotation marks and citations omitted).

       Teleguz     faults     his    state    habeas     counsel   for     failing   to

investigate and raise an ineffective assistance of trial counsel

claim relating to the Ephrata, Pennsylvania murder allegations

not just at the guilt phase but also at the penalty phase.

According to Teleguz, “the jury was told that Teleguz was ‘at

the recreation center in this small town and that Ivan Teleguz

and two other people came in, walked up to some guy, blew him

away     and    told    you      they’ll     be   back    for    the   other     two.’”

Petitioner’s Br. at 59 (citing J.A. 4403).

       In reality, however, the jury was not “told” that Teleguz

“blew”    anyone       “away,”    but    rather   that    Gilkes    did    not   recall

having made any such statement and that he saw no such thing.

Specifically, on cross-examination, Gilkes was asked, “Do you

                                             29
remember    telling        the   investigators       that     you       were   at     the

recreation center in this small town and that Ivan Teleguz and

two other people came in, walked up to some guy, blew him away

and told you they’ll be back for the other two?”                           J.A. 4403.

Gilkes responded, “No, I don’t recall it.”                        Id.     When asked

again,   “You      don’t    recall    saying    that?”      Gilkes   again     plainly

stated “No.”       Id.

      On redirect, Gilkes clarified: “[D]own in Ephrata one day .

. . a couple of [] Russians on Main Street were outside the

parking lot of the rec center.                There was two men that got out

of the car.        We figured they were both, they were both Russians

to the best of my knowledge.”            J.A. 4420.         Gilkes continued that

“the one walked up and said that . . . if his boys didn’t have

the money at a certain time that in a couple of days that some

of them would be killed.”             Id. at 4421.          Gilkes testified that

Teleguz did not make that statement but “was present during the

statement.”     Id.      Gilkes reported that someone was later killed,

“a week, three days to a week after that in Ephrata Street.”

Id. at     4422.      But    Gilkes    did    not   state    or   suggest      that    he

witnessed that murder or knew who had committed that murder—and

he certainly did not testify, nor did any other trial witness,

that Teleguz “blew someone away” in Ephrata, Pennsylvania.

      The alleged Ephrata, Pennsylvania murder resurfaced during

the   prosecution’s         closing     argument      at      sentencing.             The

                                         30
prosecutor stated “you heard the background of the defendant,

how Gilkes told you about this issue in Ephrata, how they had

this situation with the Russian folks approaching and posturing

about killing someone, and someone ends up dead.”                      J.A. 5209.

Again, no one argued, much less presented evidence, that Teleguz

“blew someone away” outside the Ephrata, Pennsylvania recreation

center.      Teleguz’s suggestion that the jury was informed that

“Teleguz     was    responsible   for   another        murder”   is,   therefore,

inaccurate.        Petitioner’s Br. at 60.

     Because the jury heard evidence that at best shows that

Teleguz was present when another individual threatened to murder

someone outside the recreation center in Ephrata, Pennsylvania

and that a murder did occur about a week later, and because the

lone comment on the issue at sentencing, in the form of closing

arguments, referenced “Russian folks” and did not state that

Teleguz had murdered anyone in Ephrata, Pennsylvania, it comes

as   no     surprise    that   habeas        counsel    failed    to    make   the

ineffective assistance claim that Teleguz now presses—one based

on “a misconception of the evidence.”              Teleguz, 2014 WL 3548982,

at *24. 8




     8  Our own characterization          of the evidence in our earlier
opinion was also not as tightly          tethered to the actual record as
it could have been.         But          the trial transcript, quoted
extensively above but not in             our prior opinion, speaks for
itself.
                                        31
       Moreover,     had     counsel         fully       pursued        the     Ephrata,

Pennsylvania murder issue, they may well have decided to let

things lie—because evidence presented at the hearing suggested

that a murder with a connection to the Ephrata recreation center

had in fact taken place and that Teleguz may have been involved.

A Pennsylvania State Police “master trooper” who investigated

Russian organized crime in Lancaster County testified that a man

of     Russian    dissent    named        Yvegeniy      Belyy     was    murdered        in

Elizabeth    Township,      Pennsylvania         in    April    2001.         J.A.    2852.

While    investigating      the   Belyy     murder,      the    Pennsylvania          State

Police interviewed “various individuals who talked about a fight

or embarrassment at the Ephrata Rec Center or in that vicinity.”

Id. at 2855.        The master trooper testified that “Ivan Teleguz

first came to light in the [Belyy] homicide investigation.”                             Id.

at 2854.     Record evidence also suggests that Teleguz may have

been the source of the firearm for the Belyy murder (see, e.g.,

J.A.    3814)—a    fact    consistent       with      Teleguz’s    having      been     “an

eager vendor of deadly weapons.”                Teleguz, 492 F.3d at 85.

       A brief overview of a case in which the Supreme Court found

prejudice is instructive as to why the record does not support

finding    prejudice      here.      In    Wiggins      v.   Smith,     539     U.S.    510

(2003), the defendant was convicted of murder and sentenced to

death.      Wiggins’s sentencing jury heard only one significant

mitigating factor-that Wiggins had no prior convictions.                             Id. at

                                           32
537.     But “mitigating evidence counsel failed to discover and

present in this case [was] powerful.”                   Id. at 535.       The evidence

showed that “Wiggins experienced severe privation and abuse in

the first six years of his life while in the custody of his

alcoholic,       absentee    mother.        He    suffered       physical       torment,

sexual    molestation,      and    repeated       rape       during   his   subsequent

years in foster care.           [And] [t]he time Wiggins spent homeless,

along with his diminished mental capacities, further augment his

mitigation      case.”      Id.     Given       this    “powerful”     evidence,      the

Supreme Court concluded that, “[h]ad the jury been able to place

petitioner’s excruciating life history on the mitigating side of

the scale, there is a reasonable probability that at least one

juror    would    have   struck    a    different       balance.”         Id.    at   537.

Accordingly, the Supreme Court found the high prejudice bar to

have been met.       Without doubt, this case is no Wiggins.

       Finally, completely independent of anything having to do

with     the     Ephrata,       Pennsylvania       murder        issue,     the       jury

recommended that Teleguz be sentenced to death based on finding

vileness beyond a reasonable doubt.                    Teleguz, 643 S.E.2d at 723

(“In this case, the Commonwealth presented evidence on both the

vileness and future dangerousness aggravators.                        The jury found

both    aggravators      were     proven    beyond       a    reasonable        doubt.”).

Evidence       supporting   that       finding     included:      Teleguz’s        having

“planned the murder to avoid his responsibility of supporting

                                           33
his   child;”   Teleguz’s   having    directed   that   “the    murder   be

committed in the apartment without regard to the well-being of

his child who would likely be present;” and Teleguz’s having

specified “the actual manner of the murder—cutting the victim’s

throat,” with physical attributes including “a deep stab wound

to Sipe’s neck which resulted in massive external and internal

bleeding, causing Sipe to drown in her own blood.”             Id. at 724.

In light of the independent, additional statutory aggravator of

vileness, Teleguz’s death sentence would stand regardless of his

Martinez claim.

      In sum, on the record as it exists—as opposed to how it has

been mischaracterized—we must reject Teleguz’s suggestion that

“false evidence that Teleguz was responsible for another murder

was the most powerful imaginable aggravating evidence” and thus

also his contention that there exists a “reasonable probability

that disproving that evidence would have changed the outcome.”

Petitioner’s Br. at 65 (quotation marks and citation omitted).

Instead, Teleguz has failed to “demonstrate that the claim”—

grounded in a misconception of the trial transcript—“has some

merit.”    Martinez, 132 S. Ct. at 1318.          And he has likewise

failed to make a substantial showing that his “counsel’s errors

were so serious as to deprive [him] of a fair trial, a trial




                                     34
whose result is reliable.”   DeCastro, 642 F.3d at 450 (quotation

marks and citation omitted). 9

                                 III.
     For these reasons, we affirm the district court’s dismissal

of Teleguz’s petition.


                                                         AFFIRMED




     9 While Teleguz argues that the district court should have
allowed additional discovery and presentation on this claim, the
record is replete with evidence about the Ephrata, Pennsylvania
murder issue.    Further, the “record refutes the applicant’s
factual allegations.”   Schriro v. Landrigan, 550 U.S. 465, 474
(2007). We thus reject this argument.
                                  35
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:

      I agree with my friends in the majority that Ivan Teleguz

has   failed     to   support      his    gateway      innocence     claim    with

sufficient evidence as required under Schlup v. Delo, 513 U.S.

298 (1995).      I also agree that Teleguz preserved his ineffective

assistance of counsel claim asserted under Martinez v. Ryan, 132

S. Ct. 1309 (2012).             But I disagree, respectfully, with the

conclusion that Teleguz has failed to satisfy Martinez.                     Because

the district court prevented Teleguz from engaging in discovery

on his Martinez claim, the record is too sparse to determine

whether    his   state    habeas    counsel    was     ineffective.       I   would

remand the case to the district court for further evidentiary

development of Teleguz’s Martinez claim.                Accordingly, I concur

in part and dissent in part.

                                         I.

      In 2001, Teleguz hired Edwin Gilkes and Michael Hetrick to

kill Stephanie Sipe, Teleguz’s ex-girlfriend.                In February 2006,

a jury convicted Teleguz of murder for hire.                  Gilkes, Hetrick,

and Aleksey Safanov, a third prosecution witness, each testified

at trial that he was approached by Teleguz and offered money to

kill Sipe.       Hetrick testified that he committed the murder and

received    payment      soon   thereafter.       In    addition     to   offering

corroborating      testimony,      Gilkes     testified,    during    the     guilt


                                         36
phase of the trial, that he once saw Teleguz and another man

approach two men in a parking lot outside a recreation center in

Ephrata, Pennsylvania.              Gilkes testified that the man standing

with   Teleguz     told    the    other     two     men    that    someone    “would    be

killed” if certain debts went unpaid.                      J.A. 4421.        Gilkes then

testified that someone was in fact killed a few days later on

Main Street in Ephrata.             It has since been established that the

Ephrata    murder,        as     Gilkes     described        it,     never     occurred.

Although prosecutors did not use the Ephrata murder testimony

against Teleguz during the guilt phase, they used the testimony

during the penalty phase of the trial to establish Teleguz’s

future dangerousness, one of two potential aggravating factors

that might justify a death sentence.

       Following trial, Teleguz exhausted claims for state habeas

relief    before      pursuing      federal      habeas     relief     in    the   United

States District Court for the Western District of Virginia.                            In

an amended petition for writ of habeas corpus at the district

court, Teleguz asserted, among other things, a Schlup gateway

innocence claim.          He also argued that his trial counsel was

ineffective      during    the      penalty      phase     because   they     failed    to

address    the    prosecution’s          evidence     of    future    dangerousness——

namely,   his    involvement        in    the    alleged     Ephrata    murder.        The

district court denied Teleguz’s amended petition.                            Teleguz v.

Kelly,    824    F.   Supp.    2d    672,     723   (W.D.     Va.    July    17,   2014).

                                            37
Relevant     here,      the       district        court     determined           that     his

ineffective assistance of trial counsel claim was procedurally

barred because he had failed to raise it during the state habeas

proceedings.        Id. at 695.       Teleguz appealed, and we remanded the

proceedings for further analysis of his Schlup gateway innocence

claim.     Teleguz v. Pearson, 689 F.3d 322, 330 (4th Cir. 2012).

      On   remand     at    the    district       court,    and   in       an    effort    to

resurrect his procedurally defaulted ineffective assistance of

trial counsel claim, Teleguz raised a claim under Martinez that

his state habeas counsel provided ineffective assistance because

they, too, failed to investigate the alleged Ephrata murder.

The   district      court    concluded      that,      while   our     remand      did    not

encompass     the    Ephrata       murder      claim,     Teleguz’s        state    habeas

counsel “was not so deficient as to fall below the wide range of

reasonable       professional         assistance,”          and      his        ineffective

assistance    of     trial    claim      was     not   substantial.             Teleguz    v.

Davis, No. 7:10CV00254, 2014 WL 3548982, at *25 (W.D. Va. July

17, 2014).       The district court denied both Teleguz’s Martinez

claim and his request for additional discovery on the issue.

Id. at *25–26.

                                            II.

      On appeal, Teleguz argues under Martinez that his state

habeas counsel was ineffective in their failure to investigate

and   present    evidence         that   the      alleged   Ephrata        murder       never

                                            38
occurred.       The majority concludes that state habeas counsel was

effective and that Teleguz cannot demonstrate prejudice as a

result     of    any       purported       error      on    the     part    of     state         habeas

counsel.        It is here where the majority and I disagree.                                     While

the majority concludes that Teleguz loses on a merits review of

his Martinez claim, I conclude there is insufficient evidence in

the record to make a choice either way.                           The contention here, at

its    core,         is     whether     Teleguz        should       be      afforded            further

discovery on his Martinez claim so that there can be a more

substantial evidentiary basis to resolve the issue.

      We     review         a     district      court’s        decision          not       to     grant

discovery on a habeas claim for abuse of discretion.                                           Stephens

v. Branker, 570 F.3d 198, 207 (4th Cir. 2009).                                   “‘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.’”             Id.     (quoting        Quesinberry            v.

Taylor,      162      F.3d      273,   279     (4th    Cir.       1998)).          A       petitioner

satisfies       good        cause      “if    the     petitioner           makes       a       specific

allegation that shows reason to believe that the petitioner may

be    able      to        demonstrate        that     he     is     entitled       to          relief.”

Quesinberry, 162 F.3d at 279.

      Before         turning      to   whether       Teleguz        has    demonstrated            good

cause, a description of the Martinez standard is appropriate.

One avenue for a habeas court to review a procedurally defaulted

                                                39
claim exists where the petitioner can demonstrate both cause for

the default and prejudice as a result of the default.                                     See

Coleman v. Thompson, 501 U.S. 722, 750 (1991).                           In states like

Virginia,      where       claims    of    ineffective          assistance       of     trial

counsel must be raised in initial post-conviction proceedings,

see    Lenz    v.    Commonwealth,        544    S.E.2d     299,    304     (Va.      2001),

Martinez       permits      a    petitioner      to     establish        cause     if     the

petitioner      either      lacked     state    habeas      counsel      or,   under         the

standard established in Strickland v. Washington, 466 U.S. 668

(1984), state habeas counsel was ineffective, Martinez, 132 S.

Ct.    at   1318.      A    petitioner     may    establish        prejudice       if    “the

underlying      ineffective-assistance-of-trial-counsel                    claim        is    a

substantial         one,    which    is   to     say     that     the    prisoner        must

demonstrate that the claim has some merit.”                      Id. at 1318-19.

       Strickland          instructs      that        counsel’s         performance           is

deficient      if    it    (1)    falls    below       an   objective      standard          of

reasonableness, and (2) the deficiencies prejudiced the defense

such    that    “there      is   a   reasonable        probability       that,     but       for

counsel’s unprofessional errors, the result of the proceeding

would have been different.”               Strickland, 466 U.S. at 688, 692,

694.    “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”                   Id. at 694.




                                           40
                                         A.

      The     current   record      is   insufficient       to    determine       with

confidence whether Teleguz’s state habeas counsel’s performance

fell below an objective standard of reasonableness, and Teleguz

has at least shown good cause for more discovery.                       The district

court   interpreted     our    remand      order      as   limiting      evidentiary

development to the Schlup actual innocence claim.                       As a result,

the   district    court     precluded      Teleguz      from     engaging    in    any

additional     discovery      related     to    his    Martinez     claim.         See

Teleguz, 2014 WL 3548982, at *26.

      At the start of the Schlup evidentiary hearing on remand,

Teleguz’s federal habeas counsel told the district court that

they intended to present evidence on the Martinez issue.                           The

district court responded that it was “disinclined to allow the

petitioner to expand the scope of the hearing,” but it would

withhold final judgment on the issue until the presentation of

Martinez evidence actually occurred.                  J.A. 2458.        The district

court allowed Teleguz to examine Jennifer Givens, one of his

state   habeas    attorneys,     in      support      of   his    Martinez       claim.

Givens was the only witness who offered testimony directly on

the Martinez issue during the evidentiary hearing.

      Givens readily admitted that neither she nor any member of

her   state    habeas     counsel    team      investigated       the    claim    that

Teleguz had been involved in a murder in Ephrata.                       She provided

                                         41
no excuse for her error, noting that, “we clearly missed the

issue” and that she would be “hard pressed to come up with a

worse one than this because evidence that my client would have

been involved in another alleged murder that was presented at

the guilt and the penalty phase of a capital murder trial was

unbelievably prejudicial.”        J.A. 2952.

       Givens’s   revelation   is   significant      in    light    of   evidence

that Teleguz’s connection with an earlier Pennsylvania murder

may not be as strong as originally conveyed.                     A Pennsylvania

State    Police   law   enforcement        officer   testified      during      the

evidentiary hearing that a victim was murdered a short distance

from Ephrata in Elizabeth Township, Pennsylvania, and that the

murder was connected to purported organized criminal activity at

the Ephrata recreational center.           But the officer also testified

that    several   people,   not     just     Teleguz,     were     connected    to

activity at the Ephrata recreational center.                 Although Teleguz

first came to law enforcement’s attention during the Elizabeth

Township    murder   investigation,        the   officer    established        that

another individual was convicted for the murder.                    Teleguz was

not present at the scene of the murder, and he was neither

charged nor arrested in connection with the crime.

       While Strickland does not impose upon counsel an obligation

to “pursue an investigation that would be fruitless, much less

one that might be harmful to the defense,” see Harrington v.

                                      42
Richter,     562     U.S.    86,     108    (2011),        counsel    must     exercise

“reasonable    professional         judgment”        and   “a   particular     decision

not to investigate must be directly assessed for reasonableness

in all the circumstances, applying a heavy measure of deference

to counsel’s judgments,” Strickland, 466 U.S. at 691.                          A single

error, if “sufficiently egregious and prejudicial” can support

an ineffective assistance claim, but the error must be measured

against counsel’s overall performance.                        Richter, 562 U.S. at

111.    The record, as it currently stands, demonstrates only a

single error on the part of state habeas counsel.                         Yet, in my

view, given the testimony from Givens and the law enforcement

officer,    the    error     is    significant       enough     to   warrant    further

factual development.

                                           B.

       At   this   juncture,        the    record      more     clearly   shows      that

Teleguz was prejudiced by the failure of counsel to investigate

the alleged Ephrata murder.               The district court assumed for the

sake of argument that the performance of state habeas counsel

was    deficient,      and        concluded     that,       under    prong     two     of

Strickland, the deficiencies of counsel were not so prejudicial

as to create a reasonable likelihood that the outcome of the

case would have been different.                  The district court reasoned

that any investigation by trial or state habeas counsel into the

Ephrata     murder     claim       would      have     concluded      that     Gilkes’s

                                           43
testimony     was    likely       based     upon      a   rumor        that     Teleguz      was

complicit in the Elizabeth Township murder.                                Teleguz, 2014 WL

3548982, at *25.        The Warden adds that the sentencing outcome of

the state trial could not have been different absent counsel’s

error    because     the     jury    sentenced        Teleguz          to     death    on    two

independent         aggravating           factors——vileness                   and        future

dangerousness.          Absent      the       introduction            of     false     evidence

relating     to     future      dangerousness,            the     Warden       argues,       the

vileness factor would still stand.                    The majority relies on such

reasoning, in part.          I believe this approach overlooks important

countervailing       interests      in    a    sober       assessment          of     prejudice

under the circumstances presented here.

       An error of a constitutional magnitude occurs where a jury

considers “as aggravation properly admitted evidence that should

not have weighed in favor of the death penalty” and “where the

jury could not have given aggravating weight to the same facts

and     circumstances      under      the      rubric       of        some    other,        valid

sentencing factor.”          Brown v. Sanders, 546 U.S. 212, 221 (2005)

(emphasis omitted).           Here, the evidence of the alleged Ephrata

murder     went     only     to     future       dangerousness,              not      vileness.

Vileness requires the jury to find that the defendant’s “conduct

in committing the offense for which he stands was outrageously

or    wantonly    vile,      horrible     or     inhuman         in    that     it     involved

torture,    depravity      of     mind    or     an   aggravated            battery     to    the

                                            44
victim.”         Va.    Code.         Ann.    §     19.2-264.2     (West    2015).        Thus,

evidence of an alleged prior crime would not be relevant for

vileness, the only other aggravating sentencing factor the jury

considered       during         the    penalty       phase,    yet   the    jury   may     have

improperly considered evidence of that alleged prior crime in

weighing the propriety of the death penalty.

       Essential        to       this    conclusion           is   the     idea    that    two

independent aggravating factors equal more than just multiple

legs to stand on if one breaks.                         The stakes here are high and

the jury was tasked with a nuanced moral judgment; prejudice is

inherent when an invalid aggravating factor is considered in

combination       with      a    valid       one.       However    “vile”    and   therefore

deserving of capital punishment the murder of Stephanie Sipe was

under controlling Virginia law, the jury knew that the actual

killer     got    a     pass      from       the       Commonwealth.       Trial   counsel’s

introduction           of    evidence          of      a   murder     in     Ephrata,      the

circumstances of which are now known to be less straightforward

than was suggested at trial, could very well have “skew[ed]”

Teleguz’s sentence toward the ultimate one.                          Brown, 546 U.S. at

221.     For the prosecution, who portrayed Teleguz as a man who

“solves problems” with murder, J.A. 5209, the implication was

not just that Teleguz had previously been involved in taking a

life, but also that he associated with unsavory characters who



                                                  45
also   take     lives.        The    Ephrata     murder          reference          during   the

penalty phase most certainly had its desired effect.

       Furthermore,          trial     counsel’s        error           was     significant.

Teleguz’s      own   counsel     was    the    first        to    alert       the    jury    that

Teleguz may have been involved in a prior murder, even though

the district court barred the prosecution from referencing the

alleged murder during the guilt phase.                           The door thus opened,

the prosecution then seized on the evidence during the penalty

phase.

                                         III.

       Given     the        “‘heightened        need        for      fairness          in    the

administration         of    death,’”      Teleguz          should       be     provided      an

opportunity to develop fully the claims upon which he may be

afforded    habeas      relief.        Teleguz,        689       F.3d    at    331     (quoting

Callins v. Collins, 510 U.S. 1141, 1149 (1994)).                               I would find

the     district       court’s       decision          to        preclude           evidentiary

development of Teleguz’s Martinez claim an abuse of discretion,

and I would remand for further proceedings.




                                           46
