                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-7394



CARNELL DRAUGHN, JR.,

                                                 Petitioner - Appellee,


           versus

GENE M. JOHNSON, Acting Director         of     the
Virginia Department of Corrections,

                                                Respondent - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CA-02-646-2)


Argued:   September 29, 2004                 Decided:   January 14, 2005


Before WILLIAMS, KING, and DUNCAN, Circuit Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Donald E. Jeffrey, III, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellant.   G. Arthur Robbins, CHESAPEAKE MERIDIAN, Annapolis,
Maryland, for Appellee.    ON BRIEF: Jerry W. Kilgore, Attorney
General of Virginia, Richmond, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

      Gene M. Johnson, Acting Director of the Virginia Department of

Corrections (the state),1 appeals the district court’s conditional

grant of Carnell Draughn’s § 2254 petition for writ of habeas

corpus.   The district court ruled that Draughn’s trial counsel

rendered ineffective assistance of counsel because, during a motion

to   withdraw   from   the   case,   he   revealed   confidential   client

communications. Specifically, Draughn’s counsel informed the trial

court that Draughn wanted to move for the trial judge’s recusal on

the ground that the judge was biased against African-Americans. In

the opinion of the district court, counsel’s behavior failed the

standard set by Strickland v. Washington, 466 U.S. 668 (1984), and

the state habeas court was objectively unreasonable in concluding

otherwise.      Because,     even    assuming   Draughn’s   counsel   was

constitutionally deficient, Draughn cannot show that his counsel’s

actions resulted in actual prejudice, we reverse the conditional

grant of Draughn’s § 2254 petition.




      1
      At the time Draughn filed his habeas corpus petition in the
Virginia courts, Ronald Angelone was the named respondent. (J.A.
at 260.)   Gene Johnson was substituted as the named party when
Draughn filed his § 2254 petition in the district court. (J.A. at
347.) To remain consistent, the opinion refers to “the state” as
the party in interest.

                                     2
                                  I.

     At approximately 8:40 p.m. on the evening of March 31, 1997,

an African-American male entered a Blockbuster Music store in

Newport News, VA.   The individual approached the front register,

placed his hand on the counter, and told the employee working at

the register, William Workinger, that he had “30 mother-f***king

seconds to clear that register before I pop a cap in your ass.”

(J.A. at 39.)   After Workinger removed the cash from the front

register and then opened the next register for the individual only

to find that it was empty, the individual ordered Workinger to take

him to the room where the night deposit was kept.    Workinger and

the individual went to the back of the store and knocked on the

door where Heather Shaffer, another employee, was putting together

the night deposit. Workinger told Shaffer to open the door because

there was a problem.   Shaffer did so, and the individual stood in

the doorway and told Shaffer that she had “20 mother-f***king” or

“15 mother-f***king seconds to put the money in the bag.”   (J.A. at

45, 68.) Shaffer complied, turning over somewhere between $1500.00

and $2000.00 to the individual.   The individual then had Workinger

follow him to the door.   Once outside, the individual ran towards

a Firestone Tire establishment.

     Workinger testified that the individual was approximately his

height, around 5'7" to 5'9", and that the individual had a mustache

but no other facial hair.   Shaffer testified that the robber was


                                  3
also       about    5'7",    the   same     height   as    Workinger.2     Workinger

initially told police that the robber was wearing a black baseball

cap, but he testified at trial that the individual was wearing a

black stocking cap.           Workinger blamed the discrepancy on the fact

that he first thought the robber was simply wearing a baseball cap

with the bill turned backwards.                  In contrast, Shaffer testified

that the individual wore a baseball cap with the bill in front.

Both Workinger and Shaffer testified that the individual wore a

dark, bulky jacket, and that the robber did not produce a gun but

kept his right hand in his jacket pocket, where there was a

noticeable bulge.

       After the robbery, Workinger immediately called the police,

who    responded      within       five   minutes.        Later   that   evening,   at

approximately 1:00 a.m., the police showed Workinger a page from a

high school yearbook and asked Workinger if he could identify the

individual who robbed the Blockbuster.                    Workinger, after four or

five minutes, picked out Carnell Draughn as the robber.                      Several

days later, the police showed Shaffer a spread of approximately ten

photos and she also picked Carnell Draughn as the robber.

       On     the    basis    of    these    eyewitness      identifications,       the

Commonwealth of Virginia indicted Draughn on June 9, 1997, for two

counts of robbery and two counts of use of a firearm during the



       2
      Draughn is approximately six feet tall and testified that he
had a full beard as of March 31, 1997. (J.A. at 115.)

                                             4
commission of a felony.        A one-day bench trial was conducted on

January 28, 1998 in the Circuit Court for the City of Newport News

(trial   court).    Draughn    took    the   stand   in   his    own    defense,

maintaining his innocence.      He testified that he and a friend went

to the Blockbuster Music at 8 p.m., he had left the store shortly

thereafter,   and   he   was    on    the    telephone    with    two    female

acquaintances at the time the robbery took place.                Draughn also

testified that, while driving his friend home between 10:30 p.m.

and 11:00 p.m., he passed the Blockbuster Music but did not notice

any police vehicles there.            Draughn had earlier told police,

however, that he passed the Blockbuster Music after the robbery and

saw the police cars in front of the store.           The trial court found

Draughn guilty on all counts.

     On April 21, 1998, following Draughn’s conviction but prior to

his sentencing, Draughn moved for a new trial based on newly

discovered evidence.     In support of this motion, Draughn argued

that Workinger testified falsely at trial when he stated that he

had never seen Draughn before that evening.               Draughn presented

evidence that he and Workinger had attended the same high school

and that Draughn was a well-known basketball star at the school.

The trial court heard arguments on the motion on April 21, 1998,

and at one point stated, “if that’s the only thing you base it on,

I’m prepared to go forward with sentencing.”                (J.A. at 162.)

Draughn’s counsel, Larry King, continued pressing the matter,


                                       5
however, and the trial court then stated, “I’ll give you an

opportunity to get him in here to testify whether or not he knew

him or not . . . but I think the testimony would reveal he just

simply said he had not seen him previously.”       (J.A. at 163-64.)

The case was continued to June 10, 1998, for further consideration

of Draughn’s motion for new trial.

     In the interim, however, Draughn requested that King withdraw

as his counsel.   On May 21, the trial court held a hearing on

King’s motion to withdraw.      During that hearing, the following

exchange took place:

     The Court: Give this Court, whoever wants to testify,
     give me a reason why you should withdraw or why I should
     allow you to withdraw, then I’ll do it.
     Mr. King: I think some of the reasons would be
     prejudicial to Mr. Draughn if I tell the Court some of
     the reasons.
     The Court: Well, I have a decision right on my desk that
     came in yesterday that says allowing withdrawal is within
     the discretion of the Court and unless you give me a
     reason to allow you to withdraw, I’m not going to do it.
     Mr. King: First of all, they want a guarantee I can win
     the case.
     The Court: Go ahead.
     Mr. King: Secondly, they question the Court’s prejudicial
     attitude towards black defendants. They want me to press
     that matter.

(J.A. at 172.)

     The trial court denied the motion to withdraw but permitted

Draughn to have substitute counsel appear on record at the motion

for new trial and sentencing.   (J.A. at 175.)   During that hearing,

the trial court also reversed its earlier ruling that Draughn could



                                  6
question Workinger during the hearing on the motion for a new

trial.3    Instead, the trial court said, “I am not going to extend

this case now for additional evidence. . . .                     This is not new,

something new that he couldn’t have produced at the time of trial.”

(J.A. at 174.)

     At the hearing on the motion for a new trial, the trial court

did not permit Draughn to question Workinger. The court explained,

“I made it plain to Mr. King when he came before me that I would

not hear any further evidence in this case.”                (J.A. at 181.)         “I

told you you could put it on the record for whatever good, but I

was not going to hear the evidence.”                (J.A. at 181.)      “I am not

reopening this case for a new trial.                 There is no new evidence

that’s been presented to the Court.”                The trial court did permit

Draughn’s new counsel to proffer, for the record, that Workinger

was one year ahead of Draughn in high school, and that Draughn was

well known in high school because he was a standout basketball

player.4        Counsel also proffered that a different Blockbuster

Music     was   robbed   the   day   before    the    one   in    question   by   an

individual also wearing         a black jacket and black baseball cap;


     3
      At the beginning of the hearing on the motion for a new
trial, the trial court ruled that the motion would be limited to
the question of whether another individual had, in fact, confessed
to the crime. Counsel for both parties then reminded the trial
court that the individual who “confessed” was in jail at the time
of the robbery.
     4
      The high school Draughn                 and    Workinger      attended      had
approximately 2,000 students.

                                        7
although Draughn’s photograph was shown to eyewitnesses to that

crime, the did not identity Draughn as the perpetrator.         The trial

court denied the motion for a new trial and later sentenced Draughn

to a total of ten years imprisonment.5

     Draughn appealed the denial of the motion for new trial, but

the Court of Appeals of Virginia affirmed the trial court’s ruling,

finding that the evidence Draughn proffered during that motion

failed to meet the standard for granting a motion for a new trial.

The Supreme Court of Virginia declined to hear Draughn’s direct

appeal.

     On July 25, 2000, Draughn filed a petition under Virginia law

for habeas corpus in the state habeas court.6         Draughn contended

that King provided ineffective assistance of counsel by (1) failing

to advise him of his right to a jury trial; and (2) mishandling the

motion    for   withdrawal   by   violating   Draughn’s   attorney-client

privilege.      The state filed a motion to dismiss the petition,

arguing that Draughn could not meet either prong of the Strickland



     5
      Draughn’s sentence was imposed as follows: 3 years
imprisonment for the first use of firearm during the commission of
a felony conviction; 5 years for the second firearm conviction; and
15 years each, suspended to one year, for the two robbery counts.
The sentences ran concurrently, resulting in a total of ten years
imprisonment.    The trial court also ordered Draughn to pay
$3,600.00 in restitution to Blockbuster.
     6
      Draughn’s petition for writ of habeas corpus in Virginia was
heard by the trial court. For ease of nomenclature, we will refer
to the trial court as the “state habeas court” when referencing its
analysis of Draughn’s habeas corpus petition.

                                     8
v. Washington, 466 U.S. 668 (1984) test.     Included with the motion

to dismiss was an affidavit from King. King stated that, following

the trial “Mr. Draughn and his father began expressing views

regarding a corrupt and biased judge, police department, witnesses,

and criminal justice system.”    (J.A. at 280.)    According to King,

Draughn and his father “wanted me to ask [the trial judge] to

remove himself from the case because of the trial judge’s alleged

prejudicial beliefs against African-American defendants.” (J.A. at

281.)    After King refused to make such a motion, “Mr. Draughn, and

his father, told me to withdraw from the case.     I explained to Mr.

Draughn that, at that stage, the court would require good reason

for me to withdraw.    Mr. Draughn told me to do what was necessary

to withdraw from his case, and that he would find another lawyer to

do things his way.”    (J.A. at 281.)

     The state habeas court heard arguments on Draughn’s habeas

corpus petition on September 27, 2001.       Following oral argument,

that court dismissed Draughn’s petition “for the reasons stated in

the motion to dismiss.”     (J.A. at 306.)     On July 18, 2002, the

Supreme Court of Virginia summarily declined to hear Draughn’s

appeal.

        Following the exhaustion of his state court remedies, on

August 14, 2002, Draughn filed a 28 U.S.C.A. § 2254 petition in the

United States District Court for the Eastern District of Virginia,




                                  9
reasserting    his   ineffective      assistance        of   counsel    claims.7

Draughn’s § 2254 petition was referred to a magistrate judge, who,

on June 10, 2003, issued a report and recommendation concluding

that Draughn’s § 2254 petition should be granted as to the claim

that King was constitutionally deficient in handling the motion to

withdraw   from   the   case     because   the    disclosure     of    Draughn’s

confidential conversations “fell below the range of competence that

the United States Constitution demands.”                (J.A. at 401.)      The

magistrate judge found that Draughn suffered actual prejudice

because, following the denial of the motion to withdraw, the trial

court reversed its earlier ruling and refused to permit Draughn to

question Workinger as part of his motion for a new trial.                   The

magistrate    judge’s   report    concluded      that   “[t]he   findings   and

statements by the state court judge gave the appearance of anger

and support Draughn’s contention that the state court judge became

hostile and did not properly consider his post trial motion.”

(J.A. at 404.)       Accordingly, in the magistrate judge’s view,

Draughn established that “the outcome of his motion for a new trial


     7
      Draughn raised a total of three ineffective assistance of
counsel claims. The magistrate judge recommended denying the §
2254 petition as to the first two claims, and the district court
adopted that recommendation. In addition, the district court then
declined to grant Draughn a certificate of appealability (COA) as
to those claims. Draughn failed to request a COA in this court as
to those two claims, so the denial of relief on those claims is not
before us. See Manokey v. Waters, No. 03-6932 (4th Cir. Dec. 2,
2004) (holding that a habeas petitioner must obtain a COA before an
appellate court can review alternate theories supporting a grant of
habeas relief.)

                                      10
and sentencing may have been different.”       (J.A. at 404) (emphasis

added).     To remedy the ineffective assistance of counsel, the

magistrate judge recommended a conditional grant of habeas corpus

requiring Virginia to appoint a new state trial judge to hear

Draughn’s motion for new trial.

     The state filed objections to the magistrate judge’s report,

and on August 5, 2003, the district court adopted the magistrate

judge’s recommendation conditionally granting Draughn’s § 2254

petition.   The state filed a notice of appeal on September 3, 2003,

and we have jurisdiction under 28 U.S.C.A. § 1291.8



                                  II.

     We review de novo the district court’s decision to grant a

habeas petition based on a state court record, applying the same

standards as the district court.        Whittlesey v. Conroy, 301 F.3d

213, 216 (4th Cir. 2002).      Pursuant to the Anti Terrorism and

Effective Death Penalty Act of 1996, the scope of our review, and

that of the district court, is highly constrained.           Under 28

U.S.C.A. § 2254(d)(1), we may grant a petition for habeas corpus,

with respect to any claim adjudicated on the merits in state court,



     8
      Because the state, and not the habeas petitioner, is
appealing the ruling of the district court, we do not require a
certificate of appealability. See Fed. R. App. P. 22(b)(3) (“A
certificate of appealability is not required when a state or its
representative or the United States or its representative
appeals.”)

                                  11
if the state court decision was contrary to clearly established

federal law or the decision was an unreasonable application of

federal law as determined by the Supreme Court.

     A decision of a state court is contrary to clearly established

federal law if “the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme] Court has

on a set of materially indistinguishable facts.”           Williams v.

Taylor, 529 U.S. 362, 413 (2000).9     A state court adjudication is

an unreasonable application of federal law when “the state court

identifies the correct governing legal principle from [the Supreme

Court’s] decisions but unreasonably applies that principle to the

facts of the prisoner’s case.”   Id.   The state court’s application

of   clearly   established   federal   law   must   be   “objectively

unreasonable,” and “a federal habeas court may not issue the writ

simply because that court concludes in its independent judgment

that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly.”     Id. at 411.

     Although the state habeas court did not offer an independent

rationale in denying Draughn’s habeas corpus petition, that court’s

ruling is still “an ‘adjudication’ of the merits of the claim and

must be reviewed under the deferential provisions of 2254(d)(1).”



     9
      Draughn does not suggest that the state habeas court’s
decision was contrary to clearly established federal law.

                                 12
Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en banc).     “In

such cases, we conduct an independent examination of the record and

the clearly established Supreme Court law, but we must still

confine our review to whether the court’s determination resulted in

a decision that . . . involved an unreasonable application of[]

clearly established Federal law.”    Id.   (internal citations and

quotation marks omitted).

     Draughn’s § 2254 petition alleged that his counsel provided

ineffective assistance, in violation of his Sixth Amendment rights.

Under Strickland v. Washington, 466 U.S. 668 (1984), a criminal

defendant must make two showings to prove that his counsel’s

deficient performance deprived the defendant of his Sixth Amendment

right to counsel.

     First, the defendant must show that counsel’s performance
     was deficient. This requires showing that counsel made
     errors so serious that counsel was not functioning as the
     “counsel” guaranteed the defendant by the Sixth
     Amendment.   Second, the defendant must show that the
     deficient performance prejudiced the defense.        This
     requires showing that counsel’s errors were so serious as
     to deprive the defendant of a fair trial, a trial whose
     result is reliable.


Id. at 687.

     We do not address whether Draughn’s counsel’s performance was

deficient because we hold that, even assuming King’s representation




                                13
was constitutionally deficient, Draughn cannot prove that counsel’s

errors resulted in actual prejudice.10

     The Strickland Court explained that “[i]t is not enough for

the defendant to show that the errors had some conceivable effect

on the outcome of the proceeding.    Virtually every act or omission

of counsel would meet that test.”     Strickland, 466 U.S. at 693.

Instead, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”    Id. at 694.

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”   Id.     In making that determination,

courts must “presume . . . that the judge or jury acted according


     10
      Strickland permits reviewing courts to address the prejudice
prong of the inquiry first in appropriate cases. Strickland v.
Washington, 466 U.S. 668, 697 (1984) (“[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.”) We briefly note,
however, that it is not at all clear that the state habeas court
was objectively unreasonable in concluding that Draughn’s counsel
was not constitutionally deficient.     First, Draughn’s principal
argument is that King’s performance was deficient because he
violated Virginia’s Professional Code of Responsibility by
revealing a confidential communication. See Rules of the Supreme
Court of Virginia, Pt. 6 § II Canon 4 (1997). The Supreme Court
has cautioned “breach of an ethical standard does not necessarily
make out a denial of the Sixth Amendment guarantee.”         Nix v.
Whiteside, 475 U.S. 157, 165 (1986). “[A] court must be careful
not to narrow the wide range of conduct acceptable under the Sixth
Amendment so restrictively as to constitutionalize particular
standards of professional conduct.” Id. Furthermore, the alleged
confidence, that Draughn believes the trial judge was biased, was
communicated to King with the intent that it would be disclosed in
open court as a motion requesting the trial judge’s recusal. Thus,
it is far from clear that King revealed a confidential
communication to the court.

                                14
to law.”   Id.   Thus, to prevail under this prong of Strickland,

Draughn must show at least that, but for King’s disclosure, there

was a reasonable probability that the trial court would have

granted the motion for a new trial.11      And, in order to grant

Draughn’s habeas petition, we must find that the state habeas court

was objectively unreasonable in concluding otherwise.

     Applying this deferential standard of review, we conclude that

the state habeas court was not objectively unreasonable in finding

that Draughn did not suffer any prejudice, because the trial

court’s ruling on the motion for a new trial was correct as a

matter of Virginia law.

     Under Virginia law, motions for new trial based upon newly

discovered evidence are “not looked upon with favor” and are

“awarded with great reluctance.”   Odum v. Commonwealth, 301 S.E.2d

145, 149 (Va. 1983).   The defendant

     bears the burden to establish that the evidence (1)
     appears to have been discovered subsequent to the trial;
     (2) could not have been secured for use at the trial in
     the exercise of reasonable diligence by the movant; (3)
     is not merely cumulative, corroborative or collateral;
     and (4) is material, and such as should produce opposite
     results on the merits at another trial.

Id. at 149.


     11
      The state argues that Draughn was not prejudiced because
Draughn cannot show either a reasonable probability that the motion
for a new trial would have been granted or that Draughn would have
prevailed at a new trial. We need not decide which is the proper
“proceeding” with the meaning of Strickland because Draughn cannot
show a reasonable probability that the motion for a new trial would
have been granted but for King’s performance.

                                15
       Draughn cannot show a reasonable likelihood that the trial

judge would have granted the motion for a new trial but for King’s

performance because Draughn’s evidence fails to meet the standard

announced above.      The evidence Draughn wished to press as newly

discovered, that Workinger and Draughn attended the same high

school and that another Blockbuster was robbed the night before,

fails at least the second, and arguably the fourth, requirement

under Odum.    That was the conclusion drawn by the Court of Appeals

of Virginia on Draughn’s direct appeal.          Evidence that Workinger

and Draughn attended the same large high school could have been

discovered prior to trial with reasonable diligence, especially

given that Draughn’s high school record and athletic prowess were

mentioned several times during the trial.           Moreover, it is not

clear that the evidence was of the type that should change the

result at trial.     At most, the fact that the two attended the same

high school permits the impeachment of Workinger’s statement that

he had never seen Draughn before.         It does not mean that Workinger

did not see Draughn that evening in the store.          Such evidence also

does   not   cast   doubt   on   Shaffer’s   positive   identification   of

Draughn.     Likewise, evidence that another Blockbuster was robbed

the night before by an individual wearing a black jacket and

baseball cap also could have been discovered by diligence before

trial and, again, does not tend to disprove that Draughn robbed the

Blockbuster in question.


                                     16
      Thus, even assuming King was deficient in handling the motion

to withdraw, Draughn cannot show that he was prejudiced by the

deficiency because the trial judge’s ruling on the motion for new

trial was correct.            There is no reasonable probability that, but

for King’s errors, the result of the motion for new trial would

have been different.

      The district court concluded that the trial judge’s anger with

Draughn after the motion to withdraw was denied met the Strickland

prejudice inquiry.           The district court’s approach presupposes the

inability of trial judges to separate personal feelings from their

judicial duties.            We will not lightly assume that a trial judge,

faced with an allegation of racial bias, will shirk his duties to

apply      the   law   to    the    case   before   him.        As   the   record   here

indicates,       the    trial      judge   performed      his   duties     properly   in

refusing to grant Draughn’s motion for a new trial on the basis of

newly discovered evidence.12



                                           III.

The     decision       of   the    district      court,    conditionally      granting

Draughn’s § 2254 petition, is reversed.

                                                                              REVERSED




      12
      We further note that the trial court sentenced Draughn to a
total of two years imprisonment out of a possible thirty years on
the robbery counts – hardly the picture of a vindictive judge.

                                            17
